SCOTUS Watch: Daniel v. Armslist, LLC

In 2012, Zina Daniel Haughton obtained a restraining order against her husband after he threatened to kill her. This restraining order prohibited the husband from possessing a firearm. Nonetheless, a few days later he posted a want ad on armslist.com seeking to buy a gun. He found a willing seller, arranged a meeting in a parking lot, and purchased the gun. The next day, he took the gun to Zina’s workplace and used it to murder Zina and two others before turning the gun on himself. Zina’s daughter, Yasmeen Daniel, sued Armslist for allowing the sale to occur, and has now asked the Supreme Court to review the Wisconsin Supreme Court’s unfavorable ruling.

Fourth Circuit Says Victims Can Sue Feds for Background Check Failures

Earlier this year, I wrote about the so-called “Charleston loophole” that permits federally licensed firearms dealers to proceed with sale of a firearm if the background check hasn’t been resolved within three days. That “loophole” gained prominence after the massacre at Mother Emmanuel Church in Charleston, SC in 2015. The shooter’s purchase of the firearm used in the massacre was possible because the government examiner did not complete the background check—and determine that Roof was a prohibited purchaser—within three days. Last month, the Fourth Circuit ruled that the government’s failures that led to that fateful indecision were not immune from a negligence lawsuit filed by the victims.

Heller’s Dicta?

A few weeks back, I highlighted the fact that there’s a surprising amount of congruence among the federal circuit courts in applying Heller. There’s uniformity on the methodological approach and on the constitutionality of a host of otherwise controversial public policies, like bans on assault weapons and high-capacity magazines. I also noted several substantive circuit splits, like the (lop-sided) split on “good cause” laws, the disagreement over whether undocumented immigrants fall within the Second Amendment’s scope, and the one about whether and how certain prohibited persons can raise as-applied challenges to firearm bans. There’s also a less substantive, but still interesting, circuit split: whether Heller’s carve-out for “presumptively lawful regulatory measures” constitutes dicta or not.

Fall Symposium – Gun Rights and Regulation Outside the Home

The Center for Firearms Law will be hosting its fall symposium on Friday, September 27, 2019.  The title (and theme) is Gun Rights & Regulation Outside the Home. The event is free and open to the public.

The lineup for the symposium includes many distinguished scholars who study the Second Amendment from legal, empirical, and historical perspectives. Panel discussions will include topics such as the relation of Second Amendment rights and other constitutional values, historical regulations on magazines and silencers, empirical assessments of stand your ground and concealed carry laws, and the early understanding of rights discourse, among others.

More information about the speakers and schedule is available here.

Announcing the Center’s Research Affiliate Program

We are extremely excited to announce the Research Affiliate Program (“RAP”), a new initiative of the Center for Firearms Law. The program is designed to support junior and aspiring scholars, including current graduate students, post-docs, visiting or adjunct faculty, and practitioners as they develop research and scholarship on firearms law. These nonresident affiliations are open to individuals studying firearms law, broadly defined, and working in the legal profession or in history, political science, public policy, or related fields.

Affiliates will receive a stipend to cover research-related costs, access to Duke resources, and connections with the Center’s network. During the initial phase, we expect to have 1-2 affiliates for a term of 9-12 months.

We start accepting applications Sunday, September 1st! You can find more information about the Center, the RAP, and how to apply here: https://law.duke.edu/firearms/

Firearms Law Workshop Mini-Symposium, Part VII: The Right to Keep and Bear Arms Outside the Second Amendment

The Second Amendment protects an individual right to keep and bear arms.  But, under the Constitution, that right is circumscribed.  It is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Nor does the Second Amendment impose limits on private parties’ authority to restrict firearms on their own property, on local governments’ power to regulate secondary effects of firearms-related activity (e.g. noise levels), or on the remedies available to private plaintiffs in a civil lawsuit arising from firearms-related harm. The Constitution simply sets a floor on the scope of the right to keep and bear arms.

Mini-Symposium on the First Firearms Law Works-in-Progress Workshop

After our tremendously engaging first (of what we hope will be many) Firearms Law Works-in-Progress Workshops, we are excited to have a group of those who presented drafts at the workshop blogging about their pieces. As Joseph highlighted in his retrospective on the event, these papers were eclectic and generated fascinating discussion.

During this week and next, we will be publishing one post each day in which the author briefly describes the nature of their project. (I’ll post on the draft that I discussed at the conference, as well.)

  • Dru Stevenson, Professor Law, South Texas College of Law
  • Jennifer Carlson, Associate Professor of Sociology, University of Arizona
  • Timothy Zick, John Marshall Professor of Government and Citizenship and Cabell Research Professor, William & Mary Law School
  • Lindsay Schakenbach Regele, Robert H. and Nancy J. Blayney Professor of History, Miami University of Ohio
  • Nicholas Mosvick, Assistant Professor, Adjunct Faculty, Christopher Newport University
  • Cody Jacobs, Lecturer, Boston University School of Law
  • Jake Charles, Executive Director, Duke Center for Firearms Law

Thanks to all the participants in the workshop, including not only the presenters, but also the stellar senior scholars who moderated panels, questioned assumptions, and provided crucial feedback on these and other projects.

Where Are All the Second Amendment Circuit Splits?

Gun debates are notoriously contentious and controversial, and they seldom lead to consensus. Gun litigation is a different story. In the hundreds of Second Amendment challenges in the federal courts since Heller, there has been surprising judicial agreement. Among federal courts of appeals, there is near-consensus on most questions. There are some noteworthy circuit splits, to be sure, but those are localized and limited. The more surprising aspect of federal circuit court treatment of the Second Amendment is how well-settled so many issues have become only a decade into the existence of a legally enforceable individual right.

Common Cause, Clear Standards, and Heller’s Second Amendment

 

In Rucho v. Common Cause, the Supreme Court declared that partisan gerrymandering is a nonjusticiable political issue.  Two factors seem key to the Court’s holding: the difficulty of finding a manageable standard to assess such claims and the thorny expansion of judicial review into an area of deep political controversy. Some of these same concerns permeate Second Amendment litigation; but, perhaps surprisingly, they gave the Heller majority no pause when it first announced an individual right to keep and bear arms.

Book Mini-Symposium: Guns in Law

We’re happy to announce another mini-symposium on the blog. This time, we have pieces from the contributors to the book Guns in Law, a collection of articles published this year by the University of Massachusetts Press and edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey. The contributors will summarize the main themes of their essays in the book, and we’ll be sharing these posts this week and next. I’ll update this introduction with links once the posts are all published. [Updated with links]

The book explores the changing meaning of guns and the methods to address gun violence. As the editors note, “Like other rights, gun rights are embedded in a continuing struggle over the boundaries of permissible regulation and permissible uses of guns.” This struggle continues unabated, notwithstanding the Supreme Court’s announcement in 2008 that the Constitution protects the right of law-abiding citizens to keep and carry firearms for self-defense. With contributions from historians, legal scholars, and sociologists, the volume exposes the rift in contemporary American society over the appropriate role of guns in public (and private) life.

For our mini-symposium, we have pieces from many of the contributors, including:

  • Saul Cornell, The Changing Meaning of the Right to Keep and Bear Arms: 1688-1788[Link here]
  • Darrell Miller, The Expressive Second Amendment. [Link here]
  • Katherine Shaw, Guns, Interpretation, and Executive Branch Constitutionalism. [Link here]
  • Carl T. Bogus, The Hard, Simple Truth About Gun Control. [Link here]
  • Laura Beth Nielsen, Good Moms with Guns. [Link here]

The book is an excellent look at an increasingly relevant aspect of firearms law.