Second Amendment

Litigation Highlight: Duncan v. Becerra

In March, a federal district court in California became the first federal court in the land to strike down a ban on large-capacity magazines. In a striking opinion stretching for 86 pages, Judge Roger Benitez touted the timeless principles of “[i]ndividual liberty and freedom” when he held that California could not constitutionally prohibit the transfer or possession of magazines holding more than 10 rounds. Now, that case is on appeal in Ninth Circuit.

The government’s opening brief is here. The challengers’ response brief—filed just yesterday—is here. What’s noteworthy is that a new attorney has entered an appearance for the challengers: Paul Clement, a powerhouse Supreme Court litigator who is the only advocate in the past decade to successfully convince the Court to hear a Second Amendment challenge. He’s scheduled to argue the most recent challenge, New York City Rifle & Pistol Association v. City of New York, on December 2 of this year. Whatever happens in NYSRPA, the Duncan case out of California is certainly one to watch.

Heller and the Vagaries of History

By now, Heller’s central holding is familiar: whatever other restrictions it may impose, the government cannot ban handgun possession in the home because “the American people have considered the handgun to be the quintessential self-defense weapon.” But what “people” made that choice? Not The People who ratified the Second Amendment in 1791. For them, the “quintessential self-defense weapon” was almost certainly a musket or hunting rifle, if a firearm at all. Does it matter that, through sheer happenstance, Heller was decided in 2008 when handguns were the predominant self-defense weapon?

Does the Second Amendment Have a “Private Infrastructure”?

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.

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.

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.

Firearms Law Workshop Mini-Symposium, Part VI: Guns in the Private Square

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?