Do Local Governments Have Second Amendment Rights?

The city is an increasingly common site of contestation for the right to keep and bear arms. Historically, much of gun regulation has been local, such as laws preventing the carrying of firearms into courthouses and schools or requiring that individuals obtain a license or provide a particular reason to carry a weapon.  As a result of a concerted effort by gun-rights advocates in the middle of the last century, however, many states have preempted local authority when it comes to firearms.  Some states, like Missouri, have proposed permitting (or at least decriminalizing) the carrying of weapons into local government buildings.   More than half of states now permit concealed carry in public streets regardless of training or expertise. Still other jurisdictions, such as Texas, have broadly preempted all gun regulation by local governments, effectively rendering the state the only entity authorized to pass firearm-related laws.

Of course, not all local governments want to restrict gun use.  Some seek to expand it.  A few school districts have sought to arm teachers in response to school shootings, in some cases leading to state laws banning the practice. And some cities and counties have declared themselves “Second Amendment sanctuaries,” committing themselves to resisting any law they regard as curbing gun rights.

Scholars have explored guns and local government from a number of perspectives, but at least one remains unexplored: What is the status of the city itself as a bearer of Second Amendment rights? Can the Constitution be read to confer the right to keep and bear arms on municipal governments? And if so, how would this change contemporary debates about gun regulation?

Colloquium on Localism, Popular Constitutionalism, Preemption, and Firearms

At the end of April, the Center for Firearms Law was delighted to host a colloquium on the topic of Localism, Popular Constitutionalism, Preemption, and Firearms.   Veterans of state and local government law and constitutional law,  as well as new voices, all convened (via Zoom) for a wide-ranging discussion on the intersections between local regulation, preemption, immigration, pandemic response, and firearms.

The participants were Joseph Blocher (Duke), Richard Briffault (Columbia), Jake Charles (Duke), Katherine Mims Crocker (William & Mary), Dave Fagundes (Houston), Shawn Fields (Campbell), Pratheepan Gulasekaram (Santa Clara), Alli Orr Larsen (William & Mary), Darrell Miller (Duke), Rich Schragger (UVA), Ken Stahl  (Chapman), Rick Su (UNC), and Sarah Swan (FSU).

We had initially planned for the colloquium to be in person and hosted at Duke, but the coronavirus intervened, and we instead conducted the event entirely online.   Aside from the inability to grab a meal and a drink together, we were pleased with the results.   The papers were engaging, and the discussion insightful and timely.

Of particular interest was the issue of Second Amendment sanctuaries and how they correspond (or fail to correspond) to the law and politics surrounding immigration sanctuaries.   It was especially rewarding to have persons with deep interest and experience in other areas of law connect their knowledge to the developing field of firearms law.

This week we’ll be publishing blog posts by many of the scholars who participated in the colloquium.

The Narrowness of the Supreme Court’s Decision in NYSRPA

New York State Rifle & Pistol Association Inc. v. City of New York, the first Second Amendment case to receive a Supreme Court hearing in a decade, was supposed to be the Second Amendment decision of this generation.

In the briefing in that case (of which I participated as amicus on behalf of neither party) all the hopes and fears of ten years of waiting appear on full display. What methodological tools should courts use to decide a Second Amendment case? Should they use the two-part framework adopted by all the circuits, with historical/categorical reasoning in step one, and tailoring through strict or intermediate scrutiny in step two? Or should they abandon this framework as illegitimate “balancing” and apply something perhaps more originalist: a test focused solely on the text, history and tradition of the Second Amendment? Is the Second Amendment confined to the home – as some readings of District of Columbia v. Heller would suggest – or does the right extend to bearing firearms for personal protection outside of the home as well?

McGinnis and the Dubitante Opinion

Last week Jake highlighted this Fifth Circuit opinion, United States v. McGinnis, in which Eric McGinnis raised a Second Amendment defense to his conviction under 18 U.S.C. § 922(g)(8) for possession of a firearm while subject to a domestic violence protective order.  Judge Stuart Kyle Duncan applied the two-part framework for Second Amendment challenges that has been adopted by nearly all circuits (including the Fifth Circuit) and upheld McGinnis’s conviction.

Incidental Burdens in a Pandemic

Nationwide, state and local officials have issued emergency orders closing vast sectors of the economy in order to prevent the spread of coronavirus.  Gun rights advocates have responded with lawsuits claiming, inter alia, that the Second Amendment exempts them from these orders.  Their argument, in essence, is that the right to keep and bear arms guarantees gun stores a carve out from neutral rules of general applicability. But does it?

Gunpowder, Plague, and Tradition

In 1720, writer and self-designated medical expert Joseph Browne published his A Practical Treatise of the Plague, in which he extolled the benefits of the “firing of Guns, especially Cannon” to “purify” an atmosphere laden with pestilence.  In recommending this approach, Browne had significant company.  It appears that igniting gunpowder had been the folk medicine of soldiers, sailors, and city-dwellers for decades, if not centuries.  Stephen Bradwell, a seventeenth century English physician, in addition to dispensing sound public health advice like keeping the streets clean, and avoiding throngs, recommended launching fireworks and firing guns in the public streets so that the gunpowder would “dry” the air.  Daniel Defoe, in his Journal of the Plague Year (1722) also writes of the common practice of sanitizing dwellings by burning gunpowder. (Defoe includes the story of one poor man who used so much that he destroyed his house.)

For the Founding Fathers (for whom the germ theory of disease was by no means universally accepted), the idea of shooting cannon and firing guns to cleanse the air of “miasma” may have seemed reasonable – no matter how risible it is today.  The technique’s widespread acceptance as good practice in the 1700s may not be a problem for medicine, but it does present a problem for law.

Equilibrium Adjustment and Second Amendment Doctrine

Almost a decade ago, Professor Orin Kerr wrote a brilliant article called “An Equilibrium-Adjustment Theory of the Fourth Amendment.”  In it, he posited a theory of the Fourth Amendment that describes judges applying Fourth Amendment doctrine so as to maintain some equilibrium between police power and personal liberty.   As he writes:

When changing technology or social practice makes evidence substantially harder for the government to obtain, the Supreme Court generally adopts lower Fourth Amendment protections for these new circumstances to help restore the status quo ante level of government power. On the other hand, when changing technology or social practice makes evidence substantially easier for the government to obtain, the Supreme Court often embraces higher protections to help restore the prior level of privacy protection.

More on Text, History, and Tradition and NYSRPA

Much of the oral argument in NYSRPA v. New York City dealt with mootness: whether there was even a case or controversy before the court, as required by Article III of the United States Constitution.   But someday, whether in NYSRPA or some other case, the Court will have to address the question of which method to use to analyze the Second Amendment.  The two main contenders are the two-part framework, adopted by most of the lower courts; and text, history, and tradition, endorsed by a minority of judges, including now-Justice Brett Kavanaugh.

The Anti-Carolene Court and Gun Politics

Nicholas Stephanopoulos has recently posted an article describing how the Roberts Court is fast becoming the “Anti-Carolene Court.”   The 1938 case United States v. Carolene Products Co. is famous, of course, for its footnote four, where Justice Stone articulates a theory of judicial review keyed to the need for judicial officers to intervene when there’s a failure of the political process.  The justices must act when groups – typically “discrete and insular” minorities  –  are  otherwise unable to assemble democratic coalitions to advance their political goals.  They must also act where there’s a risk of partisan hijacking of the political process itself to effect partisan entrenchment.  According to Stephanopoulos, the Roberts Court in recent years has “[f]lipped Carolene Products on its head” intervening in political disputes when Carolene Products would counsel deference, deferring when it would demand action, and all in a way that, consciously or unconsciously, aligns with the partisan priorities of conservative elites.

Public Carry and Collective Action

As Michael S. Green wrote just after Heller was decided, a principal purpose of gun regulation, especially with respect to public carry, is to head off prisoner’s dilemmas.   Prisoner’s dilemmas are familiar problems in the literature on collective action, and typically take the following form:  Each individual acting in his or her own best interest makes everyone is worse off.