Part Three of the Two Part Test

In the wake of Heller, state and federal courts have overwhelmingly applied what has come to be known as the “Two Part Test.” The first part is a threshold inquiry about whether the challenged regulation intersects with the Second Amendment at all. If the answer to that inquiry is yes, then courts move on to the second part: Typically some kind of means-end scrutiny, the stringency of which depends on how much the law burdens the “core” right of self-defense.

Domestic Violence and the Home: Hard Questions for the Second Amendment

October was Domestic Violence Awareness Month, and as Jake noted in his post earlier this week, the Center fortunately had a chance to help coordinate a well-attended event on the topic, which was co-sponsored by the Duke Human Rights Center at the Franklin Humanities Institute, the Duke Human Rights Center at the Kenan Institute for Ethics, the Coalition Against Gendered Violence, the Human Rights Law Society, the International Law Society, and the Women Law Students Association. The breadth of the sponsorship and positive response to the event were appropriate, since there is broad support for the wisdom and constitutionality of laws targeting the link between firearms and domestic violence (DV). Such laws are politically popular, and have been overwhelmingly upheld against Second Amendment challenges.

Panel on Guns and Domestic Violence: U.S. & International Human Rights Law Perspectives

On October 14, the Center co-hosted a panel with distinguished speakers for a discussion on the role of firearms in domestic violence situations. The speakers recounted some truly disturbing statistics: about 4.5 million women have been threatened with a gun by an intimate partner; almost a million women have been shot or shot at by a partner; and a woman is five times more likely to be killed in a domestic violence situation if the abuser has access to a gun. The Department of Justice’s Office on Violence Against Women has highlighted this research that has shown that “the presence of a gun in domestic violence situations significantly increases the risk of homicide, endangering victims, other family members, bystanders and coworkers.” Center faculty co-director Darrell Miller facilitated the insightful discussion.

Scholarship and the “Constitutional Case for Gun Control”

Earlier this week, Yale law students Joshua Feinzig and Joshua Zoffer published a powerful piece in The Atlantic describing the “A Constitutional Case for Gun Control.” Inspired in part by Robert Cover’s work on the essential role of narrative in imbuing law with moral authority, they argue that the narrative-driven brief filed by the March for Our Lives Action Fund in NYSRPA “marks the beginning of a long-needed effort to offer a pro-gun-control constitutional narrative, one that calls attention to the constitutional rights and goods vindicated by gun regulation.”

Scholarship Highlight: “Libertarian Gun Control”

Most legal scholarship and public debate about gun rights and regulation focuses on whether and how gun laws can prevent homicide—understandably so, given the astounding number of gun homicides in the United States every year. But as those closer to the debate are well aware, the majority of gun deaths are by suicide. And far less discussion has been devoted to that uncomfortable and seemingly-intractable topic.

All of which means that Ian Ayres and Fred Vars’ “Libertarian Gun Control,” just published in the University of Pennsylvania Law Review, is an especially welcome addition to the literature. In it, they describe a system by which people could choose to waive their right to keep and bear arms—and to credibly communicate that decision to others, thereby setting up something of an associational marketplace. Such a system (distinct from the waiver that Dru Stevenson has discussed on this blog) could help prevent both homicides and suicides, all based on individual choice rather than traditional regulation.

The Second Amendment of Things (and Grievances)

[This post is part of a symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019), hosted on the Balkinization blog and is cross-posted there.]

The second chapter of Mary Anne Franks’ exceptional new book, Cult of the Constitution, shows how constitutional fundamentalism distorts debates about gun rights and regulation. In doing so, it offers novel contributions to the increasingly vibrant scholarly literature on the Second Amendment. I’ll focus on two; one conceptual and the other doctrinal. The first is Franks’ focus on the physical instrument (the gun) that is central to the right; the second is what her argument suggests about the future of Second Amendment doctrine.

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.

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.”

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.

The Private Sector Leans into Gun Regulation

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.