History

The Historical Pedigree of Long Gun Registration

In Heller II, the D.C. Circuit claimed that long gun registration requirements are novel, not historic. Heller III reiterated this line, stating that the registration requirement for long guns lacks the “historical pedigree” of the registration requirement for handguns. But is this entirely right? Historical American firearm registration laws suggest that long gun registration is far from novel.

Some Topics and Learning Objectives for Second Amendment Courses

An enjoyable feature of teaching Second Amendment is the flexibility and variety of possible approaches. A professor can use a wide variety of materials, depending on learning objectives. Social science, current policy debates, and political philosophy are easily included, if one wants.

I use our textbook Firearms Law and the Second Amendment. It aims to provide ample materials for professors to teach in many different ways. Here are some of the approaches I take:

In any given semester, there are always important arms law cases in progress. So my classes may include briefs or other documents from such cases. This allows instruction on appellate brief-writing, by reviewing high quality briefs on both sides of an issue.

In many textbooks, the vast majority of cases come from the Supreme Court. But because Second Amendment case law is in a relatively less developed stage, courts vary widely in how they treat the right to arms. There are many open issues. Working through some of the conflicting lower court opinions is a good opportunity to examine legal uncertainty. Students can also see how much (or little) precedent actually does guide lower courts.

The modern lower court cases are also excellent for showing students the use of various standards or methods of review, including subtests within particular standards.

A Second Amendment class can help build student skills in working with original materials and legal history. Since the majority and dissent in Heller both argued extensively from originalism, studying the original sources and history allows students to make up their own minds about which interpretations are most persuasive.

For students who hope to include constitutional law in their practices, exposure to English legal history is important. The history of the English right to arms introduces students to Coke, the English Bill of Rights, Magna Carta, and other ancestors of American law.

The story of the right to arms during the Reconstruction deepens student knowledge of the “Second Founding” and its profound constitutional changes. American gun control and gun rights history involves race control and liberation, and society’s continued engagement with the meaning of civil rights.

McDonald v. Chicago can be taught in conjunction with Reconstruction legal history. The case is also excellent for teaching the different legal theories of what rights can/should be considered protected by the Fourteenth Amendment.

State constitutional law often shapes a lawyer’s daily practice more than the federal constitution does; yet state constitutionalism is often neglected in law schools. The Firearms Law textbook includes a chapter on state constitutional law. For potential supplemental materials, most states have interesting state constitutional cases or history. I include some Colorado material.

There are two main groups of federal gun control laws: the National Firearms Act and the Gun Control Act. Both have been amended many times. Students who practice criminal law will likely encounter these statutes, or state analogues. So I teach the basics of how the statutes operate, plus some cases involving the federal regulation of firearms dealers, special regulations on certain types of arms, and so on.

The Second Amendment and its 44 state constitution counterparts protect a right to “arms”—not just “firearms.” My curriculum uses material in which students can engage with arms law and policy outside the context of firearms. One way is through modern right to arms cases involving knives, stun guns, and so on.

Alternatively, since long before firearms were invented, humans have grappled with the law, politics, and philosophy of arms rights, responsibilities, and control. Such topics can be examined via ancient Rome, Greece, or China; or English legal history before 1500; and many other sources.

There are many other topics and skills that can be part of a Second Amendment course. The above are simply some of those that I like to offer.

 

[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.

Miniseries, Part III – Felons and Persons with a Mental Impairment

[Ed. Note: As we discussed here, this post is part of a three-part series on gun laws in the Center’s Repository of Historical Gun Laws, written by Center research assistant Catie Carberry. This post, like the Repository, is exemplary and not exhaustive.]

Felons

Were bans on convicts possessing firearms “unknown before World War I?”

Miniseries, Part II – Disarmament of those Disaffected to the Cause of America

[Ed. Note: As we discussed here, this post is part of a three-part series on gun laws in the Center’s Repository of Historical Gun Laws, written by Center research assistant Catie Carberry. This post, like the Repository, is exemplary and not exhaustive.]

Who was disarmed at the time of the founding?

Miniseries, Part I – A Brief Overview of Laws Addressing Nonresidents and Aliens

[Ed. Note: As we discussed here, this post is part of a three-part series on gun laws in the Center’s Repository of Historical Gun Laws, written by Center research assistant Catie Carberry. This post, like the Repository, is exemplary and not exhaustive.]

Are laws banning aliens from keeping guns a “post-World War I phenomenon?”

Mini-Series on Historical Gun Laws: Felons, Foreigners, and Others Deemed Dangerous

This week, we’re fortunate to have a three-part series by one of the Center’s excellent summer research assistants, Catie Carberry. Catie’s posts will provide an overview of the historical gun laws in the Center’s Repository of Historical Gun Laws, the largest publicly available single-site compilation of historical regulations of firearms. The Repository is the result of more than four years of painstaking research, but makes no claim to completeness. Rather than purport to include every firearm-related law (an impossible task), it is designed to provide a broad, deep, and representative sample of the kinds of gun laws that have existed throughout English and American history.

“Presumption of Constitutionality”

On Thursday, in American Legion v. American Humanist Association, the Supreme Court held that a Latin cross installed over ninety years ago on public land to commemorate fallen World War I soldiers did not violate the Establishment Clause.    In doing so, Justice Alito, writing for the plurality, shied away from the much-criticized Lemon test and instead opted for “a presumption of constitutionality for longstanding monuments, symbols, and practices” that have religious connotations.

Forging Con Law Through a Gun Regulation Lens

In reading the Supreme Court’s recent double-jeopardy opinion, Gamble v. United States, it struck me just how many major constitutional law cases involve guns and guns laws, even if sometimes at the periphery. Gamble, for instance, complained that his state law conviction for being a felon in possession of a firearm precluded his indictment under 18 U.S.C. § 922(g)(1). Like in Gamble, the regulations of firearms have played a supporting role in many major cases residing in the constitutional law canon.