Scholarship

Colloquium on Localism, Popular Constitutionalism, Preemption, and Firearms

At the end of April, the Center for Firearms Law was delighted to host a colloquium on the topic of Localism, Popular Constitutionalism, Preemption, and Firearms.   Veterans of state and local government law and constitutional law,  as well as new voices, all convened (via Zoom) for a wide-ranging discussion on the intersections between local regulation, preemption, immigration, pandemic response, and firearms.

The participants were Joseph Blocher (Duke), Richard Briffault (Columbia), Jake Charles (Duke), Katherine Mims Crocker (William & Mary), Dave Fagundes (Houston), Shawn Fields (Campbell), Pratheepan Gulasekaram (Santa Clara), Alli Orr Larsen (William & Mary), Darrell Miller (Duke), Rich Schragger (UVA), Ken Stahl  (Chapman), Rick Su (UNC), and Sarah Swan (FSU).

We had initially planned for the colloquium to be in person and hosted at Duke, but the coronavirus intervened, and we instead conducted the event entirely online.   Aside from the inability to grab a meal and a drink together, we were pleased with the results.   The papers were engaging, and the discussion insightful and timely.

Of particular interest was the issue of Second Amendment sanctuaries and how they correspond (or fail to correspond) to the law and politics surrounding immigration sanctuaries.   It was especially rewarding to have persons with deep interest and experience in other areas of law connect their knowledge to the developing field of firearms law.

This week we’ll be publishing blog posts by many of the scholars who participated in the colloquium.

Scholarship Highlight: New Articles Call for Re-Examining Second Amendment Issues

A few new pieces of legal scholarship were published recently and have just have popped up on Westlaw, including from frequent guest blogger Dru Stevenson and the Center’s own Joseph Blocher. The articles address important questions at the heart of debates over the Second Amendment. (Two of the articles, Stevenson and Kelly, I could only find available on Westlaw, so the links lead there rather than to a PDF.) Check them out below!

Firearm Policy and Alcohol Abuse

In my forthcoming article, The Complex Interplay Between the Controlled Substances Act and the Gun Control Act, I focus on 18 U.S.C. §922(g)(3), which in its current form incorporates the Controlled Substances Act (CSA) by reference and thereby prohibits violators of the CSA from possessing a firearm. This statutory intersection currently results in more than 14,200 individuals per year failing a background check for gun purchases, and around two hundred prosecutions per year for possession of guns by drug users as the lead charge.  Circuit courts have consistently upheld the constitutionality of §922(g)(3), even in the years after Heller.

Scholarship Highlight: Sanctuary Jurisdictions

Shawn Fields has posted an original and through-provoking new paper on Second Amendment Sanctuaries that will be published in the Northwestern Law Review later this year. From the abstract:

The term “sanctuary” has long expressed a sympathy for immigrants’ rights and resistance to federal immigration enforcement. Recently, the word has become associated with another divisive political topic, as local governments have begun declaring themselves “Second Amendment Sanctuaries” in defiance of statewide gun control measures they deem unconstitutional. This gun rights resistance movement not only flips the political script on the nature of sanctuaries but presents important and challenging questions about local-state power sharing, the proper scope of “subfederal commandeering,” and the role of coordinate branches in constitutional decision making.

This Article provides the first scholarly treatment of Second Amendment Sanctuaries. In doing so, it explores both the unique facets of this new localism and the broader implications for sanctuary movements generally. Most early commentary on Second Amendment Sanctuaries dismisses them as purely symbolic and presumptively invalid pursuant to state preemption principles and the judicial supremacy model of constitutional interpretation. This Article challenges that narrative and articulates a theory of limited viability for these and other local intrastate resistance movements.

The theory proceeds in three parts, with each part presenting a novel approach to local-state governmental conflict that contributes to the existing literature. First, localities can resist broad state preemption in limited circumstances via the state’s “home rule” provisions when local regulation of a particular issue is rooted in history and has normative policy appeal. Second, localities may passively resist statewide regulation through a form of “subfederal anticommandeering” analogous to the Tenth Amendment’s anticommandeering principles protecting states from federal overreach, so long as the locality takes no affirmative steps to frustrate state enforcement. Third, local enforcement officers may defend their resistance on substantive constitutional grounds when the right at issue is not settled firmly by the judiciary. This “first impression departmentalism” reflects the proper role all coordinate branches of government have in defining the contours of constitutional provisions when emerging doctrine remains in a state of flux. These principles counsel in favor of the viability of at least some Second Amendment Sanctuaries as currently constructed, as well as sanctuaries resisting firearm deregulation and other statewide policy initiatives.

The Federal Prohibitor and Unlawful Drug Users

I’m reading a draft of a fantastic forthcoming article by Dru Stevenson on the how federal drug law operates as what he calls one of the primary forms of gun control today. Under federal law anyone “who is an unlawful user of or addicted to any controlled substance” is forbidden from possessing firearms. So those active users are barred, whether they have any conviction or not. And, of course, the felon prohibitor in 18 U.S.C. § 922(g)(1) bars anyone who has ever had a felony drug conviction from ever again possessing firearms. We are fortunate that Dru will be blogging on his own article, but in this short post, I wanted to just highlight a few things that stood out to me from his article and the broader debate over guns and drugs (also the name of a great article by Benjamin Levin).

Laws with an Ugly Past

A few weeks ago, the Supreme Court heard arguments in Espinoza v. Montana Dep’t of Revenue, which concerns the use of public funds for religious schools. Part of the issue in that case is what to make of Montana’s Blaine Amendment, a type of state constitutional provision that prohibits appropriating funds to religious sects or institutions. Although innocuous enough on their face, Blaine Amendments have a sordid history in virulent anti-immigrant and anti-Catholic bigotry. They raise the question about the relevance of legislative purpose to the constitutionality of governmental decrees. A similar issue often arises when talking about laws regulating guns. Just what role does an ugly past play in the constitutional calculus?

Scholarship Highlight: Cottrol & Diamond on Public Safety and the Second Amendment

Robert Cottrol and Ray Diamond have posted on SSRN a new piece on Public Safety and the Right to Bear Arms. In the piece, Cottrol and Diamond provide a detailed and thorough examination of the debates and historical understanding that influenced codification of the Second Amendment and its interpretation in the ensuing years, decades, and centuries.

Warped Narratives: Distortion in the Framing of Gun Policy

Every year in America, gun violence claims more than 35,000 lives, with gun-related injuries accounting for more than twice that number. Despite this staggering problem, the federal government has taken very little action since in the mid-1990s. How do we account for this policy stalemate and, some would say, failure on the part of public officials? The typical explanations focus on deepening political polarization and the power of the gun lobby (and the National Rifle Association, especially). While these factors are clearly significant, another aspect of the gun policy debate, reflecting a more general dysfunction of policymaking, deserves our attention: the framing of the policy issue.

Equilibrium Adjustment and Second Amendment Doctrine

Almost a decade ago, Professor Orin Kerr wrote a brilliant article called “An Equilibrium-Adjustment Theory of the Fourth Amendment.”  In it, he posited a theory of the Fourth Amendment that describes judges applying Fourth Amendment doctrine so as to maintain some equilibrium between police power and personal liberty.   As he writes:

When changing technology or social practice makes evidence substantially harder for the government to obtain, the Supreme Court generally adopts lower Fourth Amendment protections for these new circumstances to help restore the status quo ante level of government power. On the other hand, when changing technology or social practice makes evidence substantially easier for the government to obtain, the Supreme Court often embraces higher protections to help restore the prior level of privacy protection.