Scholarship Highlight: Curry on the Shifting Core of the Second Amendment

Ryan Curry has published a new paper in the latest issue of the Tulsa Law Review, “An Evolving Right: The Shifting Core of the Second Amendment and Its Effect on Public-Carry.” He catalogues the various ways courts have characterized the “core” of the Second Amendment right and argues that the Supreme Court needs to step in and clarify. From the Introduction:

. . . Heller defined the core purpose of the Second Amendment as the right to use handguns for self-defense. Absent from this definition is the answer to a crucial question, the question on which this Note will focus: is the core limited to certain locations? Stated more directly, is it limited to the home? As the recent cases of Wrenn v. District of Columbia and Young v. Hawaii illustrate, by expanding or contracting the Second Amendment’s core, courts give themselves significant leeway to determine whether a statute that limits firearm possession outside the home is constitutional. . . .

Part I of this Note explores the background of the Second Amendment by highlighting the role of the militia during the American Revolution. This section illustrates the public admiration of the militia during the colonial period as well as the shared public fear of the militia’s antithesis: a standing military. As discussed in other writings, there is an argument that the founders did not envision the Second Amendment as a protection of individual firearm rights unrelated to state militias but, rather, intended it to provide a balance against the federal military by granting citizens the right to keep and bear arms in the limited context of militia service.

Part II analyzes the Supreme Court’s decisions in Heller and McDonald. While these decisions relied heavily on a historical interpretation of the Second Amendment, in both instances, the Court expanded the reach of the widely-believed intent of the framers and held that the Second Amendment protects an individual right to possess handguns for self-defense even in the absence of any militia connection.

Part III discusses the hotly contested right of public-carry by examining and defining good-cause statutes. As previously noted, such statutes often deny public-carry permits to law-abiding citizens with no mental health concerns unless the applicant is able to establish cause for self-defense over and above the self-protection needs of the general public. This portion of the Note also analyzes the public-carry circuit split in light of the recent Wrenn and Young decisions, and more specifically, exposes the shifting core of the Second Amendment. While Wrenn created the split, Young introduced a third interpretation of the core, thus revealing the core’s malleable nature.

. . .

Part IV raises the point that the judicial focus on the Second Amendment’s core appears to have grown since Heller. Given the current spotlight on the core, this Part argues that the concept of the core is possibly being rendered unnecessarily abstract as a result of the relevant case law’s failure to explain what exactly it means for the Second Amendment to have a core in the first place. This portion of the Note suggests, based on language and inferences drawn from Heller and McDonald, that the Second Amendment’s core is properly defined and understood simply as the Amendment’s primary purpose. It then examines whether such a substitution of terms might have altered the Ninth Circuit’s ruling in Young.

Given the shifting nature of the core, Part VI concludes by arguing that the disagreement among the circuits regarding the right to carry handguns in public makes Supreme Court intervention both necessary and appropriate. In America’s mass-shooting society, the public safety implications of a Supreme Court ruling placing the right of public-carry either inside or outside of the core of the Second Amendment could be profound.

Outstanding Second Amendment and Firearms Law Cert Petitions

As the Supreme Court starts its new Term, with one Second Amendment case docketed (for now), it seems like a good time to review the outstanding petitions awaiting action at the Court. These petitions raise a variety of Second Amendment and firearms-related issues, including important questions of statutory interpretation and the scope of agency discretion. I’ve previously written about the recent requests for Supreme Court review (here and here) and, surprisingly or not, many of the petitions highlighted there–more than four months ago–have yet to be acted on.

Below are the petitions outstanding at the Court (sorted by date the petition was filed). Note that some of these may be resolved on Monday when orders from the Long Conference are expected.


Case Court Below Pet. Filed Implicated Law/Issue Status
Mance v. Barr  5th Cir. 19-Nov-18 Federal ban on out-of-state handgun purchases distributed

12-Apr-19 conference

Rogers v. Grewal  3rd Cir. 20-Dec-18 NJ “may issue” public carry regime distributed

23-May-19 conference

Pena v. Horan  9th Cir. 28-Dec-18 California’s Unsafe Handgun Act (microstamping, etc.) distributed

12-Apr-19 conference

Gould v. Lipson  1st Cir. 1-Apr-19 MA “may issue” public carry regime (as implemented locally) distributed

6-June-19 conference

Armament Services v. Barr 3d Cir. 19-June-19 What constitutes a “willful” violation of the Gun Control Act for revocation of a Federal Firearm License distributed

1-Oct-19 conference

Cheeseman v. Polillo N.J. 28-June-19 NJ “may issue” public carry regime relisted for 18-Oct-19 conference
Ciolek v. New Jersey N.J. 18-July-19 NJ “may issue” public carry regime distributed

1-Oct-19 conference

Miller v. Ferguson 9th Cir. 23-July-19 Ban on firearm possession (as sufficient restraint to invoke habeas) distributed

1-Oct-19 conference

Daniel v. Armslist Wisc. 29-July-19 Scope of immunity for gun-broker website under Communications Decency Act resp. due 18-Oct-2019
Remington Arms v. Soto Conn. 1-Aug-19 Scope of  gunmaker immunity under the Protection for Lawful Commerce in Arms Act reply due 18-Oct-2019
Guedes v. ATF D.C. Cir. 29-Aug-19 Ban on bump stocks resp. due 4-Nov-2019
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) resp. due 4-Nov-2019
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines resp. due 25-Oct-19
Malpasso v. Hamilton 4th Cir. 26-Sep-19 MD “may issue” public carry regime resp. due 30-Oct-19





Scholarship Highlight: Lund on Second Amendment Methodology

Nelson Lund has posted a new paper to SSRN, History and Tradition in Second Amendment Jurisprudence, forthcoming in the University of Florida Journal of Law & Public Policy. Lund’s paper is fascinating and provocative. He argues that the approach advocated by then-Judge Kavanaugh—that focuses on text, history, and tradition in lieu of traditional methods of means-end scrutiny—is misguided. Justice Kavanaugh, Lund contends “misinterpreted Heller” and thus adopted an approach “he mistakenly imputed to Heller.”

Did the Supreme Court Dictate Lower Courts’ Second Amendment Interpretive Theory?

In Ezell v. City of Chicago, the Seventh Circuit concluded that it had “to follow the Court’s lead in resolving questions about the scope of the Second Amendment by consulting its original public meaning as both a starting point and an important constraint on the analysis.” In other words, the Seventh Circuit thought it was bound to an originalist methodology in assessing Second Amendment claims. In his concurring opinion in Kisor v. Wilkie last term, Justice Gorsuch may have cast some doubt on such a strong assumption.

Retrospective on Fall Symposium: Gun Rights and Regulation Outside the Home

Last Friday, the Center hosted its fall symposium on Gun Rights and Regulation Outside the Home. The discussions generated through the panel presentations and Q&A portion of the event were engaging and thought-provoking. We intentionally convened scholars from a broad variety of disciplines and viewpoints. Judging by the presentations, there’s no doubt that the spring issue of Law & Contemporary Problems, which will be publishing the articles that come out of the symposium, is going to be well worth the read. The event was recorded and the panel discussions can be viewed at the links below.

Florida Appeals Court Upholds Red Flag Law against Constitutional Challenge

Jefferson Davis (not that one), a Gilchrist County Sheriff’s deputy, allegedly threatened to kill another deputy after he discovered that his girlfriend had been involved with the man. His colleagues sought and obtained a Risk Protection Order (“RPO”) under Florida’s new “red flag” law. Davis appealed, raising a number of challenges to the RPO entered against him and to Florida’s entire scheme. In Davis v. Gilchrist County Sheriff’s Office, Florida’s first district court of appeal rejected those challenges. This case represents one of the few rulings on the constitutionality of “red flag” laws generally and the first on Florida’s law. The Florida court joins courts in Indiana and Connecticut in upholding these types of laws against constitutional challenge.

Two New Second Amendment Cert Petitions

In the last few weeks, two new cert petitions have been filed asking the Supreme Court to review recurrent issues in litigation over the right to keep and bear arms. Below are links to the petitions and excerpts of their Questions Presented. We’ll be watching these as the Court comes back to a new Term next week.

Duke Panel Discussion on Extreme Risk Laws

Last night at Duke, we held a fantastic panel discussion with distinguished guests Professors Kristin Goss & Jeffrey Swanson and North Carolina Representative Marcia Morey to discuss Extreme Risk laws, often called Red Flag laws. These are laws that allow law enforcement to temporarily remove firearms from individuals that a court determines are a danger to themselves or others. If the person asking the court to temporarily remove the firearms proves their case, the court can enter what’s usually called an Extreme Risk Protection Order (or ERPO for short) that permits law enforcement to disarm the person who has been found dangerous.

Litigation Highlight: Duncan v. Becerra

In March, a federal district court in California became the first federal court in the land to strike down a ban on large-capacity magazines. In a striking opinion stretching for 86 pages, Judge Roger Benitez touted the timeless principles of “[i]ndividual liberty and freedom” when he held that California could not constitutionally prohibit the transfer or possession of magazines holding more than 10 rounds. Now, that case is on appeal in Ninth Circuit.

The government’s opening brief is here. The challengers’ response brief—filed just yesterday—is here. What’s noteworthy is that a new attorney has entered an appearance for the challengers: Paul Clement, a powerhouse Supreme Court litigator who is the only advocate in the past decade to successfully convince the Court to hear a Second Amendment challenge. He’s scheduled to argue the most recent challenge, New York City Rifle & Pistol Association v. City of New York, on December 2 of this year. Whatever happens in NYSRPA, the Duncan case out of California is certainly one to watch.

Heller and the Vagaries of History

By now, Heller’s central holding is familiar: whatever other restrictions it may impose, the government cannot ban handgun possession in the home because “the American people have considered the handgun to be the quintessential self-defense weapon.” But what “people” made that choice? Not The People who ratified the Second Amendment in 1791. For them, the “quintessential self-defense weapon” was almost certainly a musket or hunting rifle, if a firearm at all. Does it matter that, through sheer happenstance, Heller was decided in 2008 when handguns were the predominant self-defense weapon?