Does the Second Amendment Have a “Private Infrastructure”?

The traditional model of constitutional rights puts the government on one side and individuals on the other; rights restrain the power of the former over the latter. But that model is a little bit over-simplified in a world of pluralistic rights disputes where constitutional interests arise on many sides simultaneously. Once one goes beyond the simple binary model, hard questions arise about who has what kind of duties with regard to rightsholders—including whether and how constitutional rights need some kind of private (that is, non-governmental) “infrastructure.” Those questions are increasingly important for the Second Amendment—I’ll try to frame them here, and offer a few tentative thoughts.

Scholarship Highlight: James B. Jacobs & Zoe Fuhr, “The Toughest Gun Control Law in the Nation” (NYU Press 2019)

Yesterday, amici filed briefs in support of the City in New York State Rifle & Pistol Association Inc. v. City of New York—the Second Amendment case that many thought (and some still think) might be a blockbuster. (Full disclosure: Along with Darrell Miller and Eric Ruben, I submitted an amicus brief in support of neither side.) There is much to say about the implications for the future of the Second Amendment, but the strange saga of NYSRPA so far also raises interesting questions about the law and politics surrounding New York’s gun laws.

The “Handgun Article” in Justice Powell’s Papers

Twenty seven years ago this week, Justice Powell’s clerk sent him a lengthy fax with the subject line “Handgun Article.” Along with Justice Stevens’ post-retirement commentary (about which Darrell and I will have more to say shortly), I think it might be the most thorough statement of a Justice’s views on guns and the Second Amendment outside a legal opinion—that is, of course, if they’re actually his. And yet, until recently, I’d never even seen it.

Firearms Law Works-in-Progress Workshop

On Friday, the Center for Firearms Law hosted the first of what we hope will become an annual Firearms Law Works-in-Progress Workshop. The immediate goal was to give scholars—especially those new to the area—a chance to engage with another’s work. More broadly, and in keeping with the Center’s overall mission, our hope was to help build a scholarly community and to broaden and deepen firearms law as a scholarly discipline.

Unexpected Choices in Teaching Firearms Law

I’ve been thinking and writing about the Second Amendment for a decade, but this past year was the first time I’ve ever actually taught a course on firearms law—a seminar called “Second Amendment: History, Theory, and Practice.”

The first three weeks covered some basic history and empirics, and an overview of the opinions in District of Columbia v. Heller. After laying that groundwork, most of the rest of the semester was devoted to particular subject matter questions: the constitutionality of who, what, where, and how restrictions, for example, got at least a week each. One week we had guest speakers (George Mocsary and David Kopel, actually, both of whom are also participating in this mini-symposium!), and a few weeks were devoted to broad questions like the relevance of empirics in Second Amendment litigation, the best “theory” of the Amendment, and so on.  I evaluated students based on response papers (6 five-page papers throughout the semester) and in-class discussion, which was uniformly engaging and challenging.

I’d be happy to share my syllabus or materials, or to discuss in more detail how I went about teaching the class. But for purposes of this post I thought it might be best to highlight a few of the design choices that emerged, and which anyone designing such a classes might want to consider.

One obvious choice is how much time to spend on the militia vs. private purposes debate. My hope was to get through this material as quickly as possible, and focus primarily on the pressing questions about how to implement Heller’s holding. This was a little trickier than I anticipated. It can easily take two or three weeks for students to get enough background reading (history, etc.) to evaluate the Scalia/Stevens disagreement. It’s easy to do a shallow dive on Heller, or to teach it in real depth, but I found it hard to do anything in the middle.

A second and related choice is how much to use the course as a way of understanding the Second Amendment “as such,” as opposed to using it as an avenue to explore other important topics in constitutional law: judicial review, the interpretive debates, federalism, and the like. I went back and forth on this, depending on the week, but in general tried to keep the focus on gun rights and regulation. It would also be easy enough to use Heller as a way to debate originalism and its alternatives, for example. But while I think that’s an important issue—and maybe particularly so in a constitutional law course—I didn’t want the Second Amendment to just be a battlefield for methodological dispute. The material is rich enough to stand alone.

A third choice is how much to foreground the creation of constitutional doctrine from the ground up. My sense is that, as they learn constitutional law, students tend to encounter doctrines that are presented as “fully grown”—the rules about the Commerce Clause, for example, are of course subject to change, but usually slowed by the gravitational pull of stare decisis. The Second Amendment, by contrast, gives a window into the kinds of design choices (rules v. standards, categories v. balancing, deference or not) that in other areas might be hidden under layers of precedent. In gun cases, those questions are front, center, and explicit. That is one of things that makes the field exciting for scholars; turns out it can be useful for teachers as well.

A fourth choice is how much to go beyond the Second Amendment itself and talk about the crucial non-constitutional law that shapes the right to keep and bear arms in practice: the ins and outs of state and federal gun laws, for one thing, but also issues like seller liability, PLCAA, and even common law rules like nuisance. I focused almost exclusively on constitutional issues, and in retrospect I regret that decision. When I teach the class again this year, I plan to focus on more of these non-constitutional legal issues.

Since mine is the last post of the week, I’d like to again thank everyone for participating, and reiterate that we here at the Center are always happy to answer questions or help find resources for those interested in teaching firearms law. Please reach out to us at firearmslaw@law.duke.edu.

[Ed. Note: This post is part of a week-long mini-symposium on teaching firearms law.]

Scholarship Highlight: Gouzoules on “The Diverging Right(s) to Bear Arms”

Alexander Gouzoules has posted on SSRN an interesting new piece, “The Diverging Right(s) to Bear Arms: Private Armament and the Second and Fourteenth Amendments in Historical Context,” which was just published in the Alabama Civil Rights & Civil Liberties Law Review. It is well worth a read for anyone interested in historical understandings of the right to keep and bear arms.

How Does Heller Fit Into a Con Law Syllabus?

Jake Charles’ post yesterday noted that a great many foundational cases in the constitutional curriculum—Lopez, Printz, Curtiss-Wright, and Cruikshank, to name a few—involve gun laws. Of course, that doesn’t mean that they’re best understood as firearms law cases, or that the subject matter of the laws had much to do with the constitutional holdings (though perhaps in Curtiss-Wright it did). But Jake’s post does help illustrate some of the ways in which firearms law intersects with other areas of doctrine, even if does so sub silentio.

How Many People Were Ever Prosecuted Under the Laws Challenged in Heller, McDonald, and NYSRPA?

In Heller, McDonald, and now potentially in NYSRPA, the Supreme Court established Second Amendment principles that have been the basis for more than 1,000 Second Amendment challenges in the past ten years. Notably, each of the Supreme Court’s cases involved an outlier law—DC and Chicago were the only notable US cities with handgun bans, and New York’s law is such an oddity that the city itself has effectively disclaimed any interest in it.