Launching New Scholarship Interview Series

In addition our recently launched video series on Covid & Guns, the Center is launching this week a new interview series on Second Amendment and firearms law scholarship. We will profile new and forthcoming articles that highlight interesting, complex, or novel issues in the field.

In the first episode, Joseph talks to Eric Ruben, Assistant Professor of Law at SMU Dedman School of Law, about his recent article An Unstable Core: Self-Defense and the Second Amendment, 108 Cal. L. Rev. 63 (2020).

Check out the interview below:

SCOTUS Gun Watch – Week of 5/18/20

Of the 11 Second Amendment cases the Court discussed at conference last Friday, it took action in only 1. The Court GVR’d Beers v. Barr, meaning that it sent the case back to the lower court to dismiss as moot because the challenger in that case—who had been prohibited from possessing firearms under 18 U.S.C. § 922(g)(4) based of a prior involuntary mental health commitment—had since had his rights restored under state law and was thus no longer prohibited. Along with NYSRPA that’s two mootness dismissals on Second Amendment cases in just a month. (The Trump Administration’s actions through ATF were the prime contributor to this case becoming moot, so it may not be explainable in quite the same terms as the NYSRPA mootness issue.)

Beers was the only prohibited person case pending before the Court, so we won’t get any answers on that question (which is one of the few issues that has split the circuits) in the immediate future. The Court has now relisted the remaining 10 cases for conference this Thursday, 5/21. The next order list, where we’ll find out if the Court has decided to hear a new case, is scheduled to come out on Tuesday, 5/26 (because Monday is a holiday).

SCOTUS Gun Watch – Week of 5/11/20

The Court has now distributed the outstanding gun cases for its May 15 conference. That means we have 11 Second Amendment cases being discussed this Friday. We could hear next Monday morning, when the Court releases its order list, if the justices are inclined to take up one or more of these cases. There’s no date by which they need to decide, however, so it’s possible that they relist these cases to be discussed again at later conferences. It’s a waiting game now.

Panel on Corpus Linguistics & the Second Amendment

Last week, Darrell held a virtual version of an event we had planned to conduct in person: Corpus Linguistics, Constitutional Interpretation, and the Right to Keep and Bear Arms.

Here’s the event description: Constitutional interpretation has increasingly turned to history and a close reading of the text to decipher meaning. Scholars have begun mining newly available databases containing thousands of works and millions of words from the founding era to shed light on questions about the typical use of words at the time the Constitution was drafted and ratified–including the Second Amendment’s right “to keep and bear arms.” Darrell Miller hosted a discussion with Duke Law Professor Steve Sachs and Neal Goldfarb, Dean’s Visiting Scholar at Georgetown Law School, about how this work on corpus linguistics can or should inform debates about the meaning of constitutional text and the Second Amendment. The event is co-sponsored by the Center for Firearms Law, the Federalist Society, and the American Constitution Society.

Check out the video below.

Announcing a New Interview Series on Covid & Guns

As we’ve previously talked about on this blog, the coronavirus pandemic has raised several questions about firearms law and the Second Amendment (see here, here, here, and here). To broaden the perspective about these unique circumstances, we’re launching a video series on Covid & Guns. In this special series, we interview experts in different fields to get their views on these issues, including questions about increasing gun sales, the potential for exacerbated gun harms, the possibility of additional benefits to ownership, and more.

We plan to post 1-2 of these videos each week for the next several weeks. They will be available on the Center’s YouTube page, as well as on the Center’s website. And we’ll also be tweeting out clips from our Twitter account (@DukeFirearmsLaw). We hope you’ll follow along!

SCOTUS Gun Watch – Week of 5/4/20

The Court considered the ten pending Second Amendment cases at its conference last Friday, but we did not get any more clarity this morning when it released the orders from that conference. It did not act on any of the pending petitions, instead holding them over to consider at another conference. We’ve also got one more to add to the ready-for-conference list: Beers v. Barr, challenging the mental illness firearm prohibitor, is scheduled for the May 15 conference.

SCOTUS Gun Watch – Week of 4/27/20

The big news this week is that we have the Supreme Court’s opinion in NYSRPA. Check out our quick reactions on the decision and stay tuned for more analysis. In the meantime, the cases the Supreme Court was holding for NYSRPA have now all been distributed for this Friday’s conference. We may know by next week this time what the next major Second Amendment issue before the Court will be. (Mance, the oldest case sitting around, gets a new hearing just over one year since its last.)

Litigation Highlight – U.S. v. McGinnis

Earlier this week, in United States v. McGinnis, a Fifth Circuit panel upheld 18 U.S.C. § 922(g)(8) against a Second Amendment challenge. That provision prohibits a person subject to certain types of restraining orders from possessing guns or ammunition while the order is in effect. With this decision, the Fifth joins a chorus of other courts brushing aside facial challenges to the federal prohibitors.

Analyzing Ramos Through a Second Amendment Lens

In a fractured decision on Monday in Ramos v. Louisiana, the Supreme Court held that (1) the Sixth Amendment requires unanimous jury verdicts, and (2) that standard applies equally to the states. Reaching this ruling required the Court to discard a 1972 case, Apodaca v. Oregon, in which another fractured Court had concluded that states could diverge from the unanimity requirement. Justice Gorsuch wrote the majority opinion in Ramos, and he was joined in at least part of that opinion by four other justices—Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh. Justice Kavanaugh also wrote separately to expand on his views about stare decisis. Justice Thomas agreed with the result only. Justice Alito dissented, and he was joined by the Chief Justice and Justice Kagan.

In my view, there are some interesting parts of Ramos that both draw from and can inform Second Amendment jurisprudence. Here’s three observations.