As Michael S. Green wrote just after Heller was decided, a principal purpose of gun regulation, especially with respect to public carry, is to head off prisoner’s dilemmas. Prisoner’s dilemmas are familiar problems in the literature on collective action, and typically take the following form: Each individual acting in his or her own best interest makes everyone is worse off.
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.
This past Thursday, I was delighted to participate in the 36th Annual Jefferson B. Fordham Debate at the University of Utah, S.J. Quinney College of Law in Salt Lake City.
This week, Walmart and Kroger announced that they will no longer allow open carry in their stores. Walmart also announced that it would be ending sales of handgun ammunition and some kinds of assault rifle ammunition. These announcements represent the latest examples of the privatization of the gun debate. As the political system has either proven gridlocked (at the federal level) or largely pro-gun (at the state level), advocates for stricter gun regulations have increasingly turned to private businesses as a vehicle for reducing gun violence.
When Americans go out in public, they may encounter civilians carrying guns either openly or concealed. For some, this is a scary thought, for others, a reassuring one. But regardless of where they stand on the issue, most Americans assume that whether their day to day lives will be awash in guns will primarily be determined by politics and specifically where their state and local politicians stand on gun control and gun rights. But is that really true?
In a sign that litigants are hoping the changed composition of the Supreme Court—Justice Kavanaugh’s replacement of Justice Kennedy—will lead to reconsideration of some lower court Second Amendment precedents, plaintiffs recently brought a lawsuit challenging Maryland’s requirement that an applicant for a concealed carry permit show a “good and substantial reason” in order to obtain one.
The Supreme Court in January agreed to hear its first Second Amendment challenge after a decade of (relative) silence. But other than New York State Rifle & Pistol Association v. City of New York (NYSRPA), there are—by my count—five other pending petitions asking the Court to review lower courts’ Second Amendment (or related firearms) rulings, with more likely to join in the coming months.