Second Amendment

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.

Unexpected Choices in Teaching Firearms Law

I’ve been thinking and writing about the Second Amendment for a decade, but this past year was the first time I’ve ever actually taught a course on firearms law—a seminar called “Second Amendment: History, Theory, and Practice.”

The first three weeks covered some basic history and empirics, and an overview of the opinions in District of Columbia v. Heller. After laying that groundwork, most of the rest of the semester was devoted to particular subject matter questions: the constitutionality of who, what, where, and how restrictions, for example, got at least a week each. One week we had guest speakers (George Mocsary and David Kopel, actually, both of whom are also participating in this mini-symposium!), and a few weeks were devoted to broad questions like the relevance of empirics in Second Amendment litigation, the best “theory” of the Amendment, and so on.  I evaluated students based on response papers (6 five-page papers throughout the semester) and in-class discussion, which was uniformly engaging and challenging.

I’d be happy to share my syllabus or materials, or to discuss in more detail how I went about teaching the class. But for purposes of this post I thought it might be best to highlight a few of the design choices that emerged, and which anyone designing such a classes might want to consider.

One obvious choice is how much time to spend on the militia vs. private purposes debate. My hope was to get through this material as quickly as possible, and focus primarily on the pressing questions about how to implement Heller’s holding. This was a little trickier than I anticipated. It can easily take two or three weeks for students to get enough background reading (history, etc.) to evaluate the Scalia/Stevens disagreement. It’s easy to do a shallow dive on Heller, or to teach it in real depth, but I found it hard to do anything in the middle.

A second and related choice is how much to use the course as a way of understanding the Second Amendment “as such,” as opposed to using it as an avenue to explore other important topics in constitutional law: judicial review, the interpretive debates, federalism, and the like. I went back and forth on this, depending on the week, but in general tried to keep the focus on gun rights and regulation. It would also be easy enough to use Heller as a way to debate originalism and its alternatives, for example. But while I think that’s an important issue—and maybe particularly so in a constitutional law course—I didn’t want the Second Amendment to just be a battlefield for methodological dispute. The material is rich enough to stand alone.

A third choice is how much to foreground the creation of constitutional doctrine from the ground up. My sense is that, as they learn constitutional law, students tend to encounter doctrines that are presented as “fully grown”—the rules about the Commerce Clause, for example, are of course subject to change, but usually slowed by the gravitational pull of stare decisis. The Second Amendment, by contrast, gives a window into the kinds of design choices (rules v. standards, categories v. balancing, deference or not) that in other areas might be hidden under layers of precedent. In gun cases, those questions are front, center, and explicit. That is one of things that makes the field exciting for scholars; turns out it can be useful for teachers as well.

A fourth choice is how much to go beyond the Second Amendment itself and talk about the crucial non-constitutional law that shapes the right to keep and bear arms in practice: the ins and outs of state and federal gun laws, for one thing, but also issues like seller liability, PLCAA, and even common law rules like nuisance. I focused almost exclusively on constitutional issues, and in retrospect I regret that decision. When I teach the class again this year, I plan to focus on more of these non-constitutional legal issues.

Since mine is the last post of the week, I’d like to again thank everyone for participating, and reiterate that we here at the Center are always happy to answer questions or help find resources for those interested in teaching firearms law. Please reach out to us at firearmslaw@law.duke.edu.

[Ed. Note: This post is part of a week-long mini-symposium on teaching firearms law.]

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.]

NYU Law Seminar: Regulation of Weaponry in a Democratic Society

We taught a two-credit Second Amendment/Regulation of Weapons seminar at NYU School of Law in spring and fall 2019. We used the regulation of weapons as a powerful exemplar of the institutional structures and relationships that constitute the American system of government, including (1) the nature of American federalism and the constitutional relationship between national and state governments; (2) the scope and limits of the judicial power to resolve constitutional issues, including available methods of constitutional argument, interpretation, analysis, and/or decision; and (3) the scope and limits of constitutional claims to liberty.

Firearms, of course, present various polarizing questions, so we were very mindful not to take any ideological positions. Our focus was on weapons regulation as a constitutional and regulatory challenge, not the desirability of civilian ownership of firearms in general. A couple of our students owned and had substantial experience with firearms, but most did not. The atmosphere was very collegial – always good discussions, but never overheated or contentious. At the end of the semester, we believe that our students were more than convinced that “it’s complicated.”

The seminar consisted of 14 two-hour classes (with a 10-minute break in the middle). We graded students based on a take-home examination and two short (3-5 pages) “response papers,” which the students could schedule as they preferred and presented at the outset of our class sessions. The first time we taught the seminar we had no guest speakers; the second time we had two. These guests worked out well – we had plenty of opportunity to pepper them with questions.

We aimed for a comprehensive survey of Second Amendment and firearms regulatory issues. For the fall 2019 seminar, we had separate class sessions on various debates, including those relating to:

  • Firearm costs and benefits (including mass shootings and gun crime)
  • The militia-centric vs. self-defense-centric interpretations of the Second Amendment – Heller v. District of Columbia
  • Fourteenth Amendment incorporation – McDonald v. City of Chicago
  • Self-defense as a natural, common law, and constitutional right
  • Federal firearms regulatory policy
  • State preemption of local weapons regulation
  • The right to carry handguns in public
  • The regulation of “assault weapons” and large capacity magazines
  • The constitutional and regulatory status of non-firearm weapons (knives, tasers, chemical sprays)
  • Keeping firearms out of the hands of dangerous and irresponsible persons (such as previously convicted felons, mentally ill and domestic violence abusers)
  • Implementing and enforcing firearms disqualifications (including the efficacy of background checking)
  • Offenses and sentence enhancements when firearms are used in crime
  • Tort remedies against manufacturers, wholesalers, retailers and third parties (schools, hotels, government institutions).

 

We assigned quite a bit of reading, including judicial opinions, law review articles, policy and empirical articles, government reports, and advocacy organization documents. In addition to required reading, we listed many recommended readings for each class in case students (now or in the future) are interested in a particular topic or wanted to incorporate additional views into their reaction papers. This was also a good way for us to organize sources that we might want to refer to in future articles. On the seminar’s companion webpage, we posted a list of all Supreme Court decisions involving firearms and a list of current events articles that caught our eyes.

Even though we covered a lot of ground, we were not able to cover all the key topics that we would have liked (for example, firearm suicides and unintentional firearms injuries). This course could easily be a three-credit seminar.

Both of us have been researching and writing about firearms issues for years, but we learned a lot by teaching the seminar, especially from each other. Ruben will be taking the seminar to his new teaching post at SMU Dedman School of Law.  Jacobs hopes to teach the seminar again at NYU.

Eric Ruben

James B. Jacobs

 

[Ed. Note: This post is part of a week-long mini-symposium on teaching firearms law.]

Feelings, Facts, and Firearms: Teaching the Second Amendment

The fact that guns tend to inspire very strong feelings, especially in Americans, makes the experience of teaching firearms law both a pleasure and a challenge. On the one hand, student enthusiasm for subject matter is always gratifying; at the same time, intense emotion can sometimes be at odds with reasoned discussion and critical reflection.

My approach to teaching firearms law is to address this tension head on: to acknowledge the attachment and fear associated with guns, as well as to note the unique status that the Second Amendment enjoys in American culture. This includes examining the religious-like fervor the Second Amendment tends to inspire and how it is often treated more as an article of faith than a legal text. This is an example of what I call “constitutional fundamentalism”: like religious fundamentalists, constitutional fundamentalists interpret their sacred texts in selective, self-serving, and rigid ways. Self-identified Second Amendment supporters frequently base their interpretation of the law largely on intuition and emotion and characterize those who disagree with them as unpatriotic or heretical.

My seminar accordingly focuses on the rise and influence of Second Amendment fundamentalism, with particular emphasis on the role that the National Rifle Association and the firearms industry play in shaping the law, policy, and public understanding of guns. The seminar focuses on case law, legal scholarship, and current events to explore the influence of Second Amendment fundamentalism on the legal and social conceptions of self-defense, harm, and risk. The readings emphasize the role of gender, racial, and cultural identity in gun rights debates, and our class discussions also delve into the impact of Second Amendment fundamentalism on other constitutional rights.

I encourage my students to think about how the Second Amendment interacts with the First – how absolutist interpretations of the right to bear arms both track and conflict with the right to free speech, for example. I ask them to consider how Fourth Amendment doctrine is or should be modified by the continuing expansion of the right to bear arms, on what effects this may have on public safety and policing.

The four writing assignments are intended to provide students with the opportunity to engage creatively with cases and controversies of firearms law. Students complete “reflection papers” on two class readings of their choosing, a largely unstructured assignment intended to get them to think deeply about the aspects that most compel or trouble them. The third writing assignment is to write an op-ed on a controversial topic relating to firearms law, which allows students to try their hand at persuasive writing that is both legally sound and accessible to the general public. After I receive the op-eds, I anonymize them and distribute them to the class for discussion. For their final assignment, students are provided with a summary of a fictional ruling on a Second Amendment issue for which the U.S. Supreme Court has granted review. They are asked to imagine themselves as the Supreme Court Justice tasked with writing the majority opinion in the case. This assignment gives students the opportunity to occupy a perspective of power and influence as they work through the complexities of a controversial constitutional issue. The emphasis throughout the seminar is on separating the feelings from the facts of firearms law, and to encourage students to think beyond the limits of constitutional fundamentalism.

[Ed. Note: This post is part of a week-long mini-symposium on teaching firearms law.]

Competition for the First Amendment—Teaching Firearms Law and the Second Amendment

It would be misleading to say that I “teach” my Firearms Law and the Second Amendment seminar.  Rather, the class is a student-driven, instructor-guided conversation.  There is substantial debate about what the law in this area should be.  It also has the advantage of being one with substantial disagreement about what the law is, both from an originalist and positive perspective.  It is a law professor’s dream.

The class and I go through each piece of covered material—whether it be a seventeenth-century English statue or a day-old case—with students sharing their thoughts on its meaning and implications.  Students do most of the talking.  This is the most important feature of the class, not the least because it is quite theory-heavy.  The class pushed students to understand concepts underlying arguments for and against civilian armament, reason through their merits and flaws, and explain these and one’s own ideas about the subject matter.  An unanticipated, but welcome, result of all this is that each semester of the class has its own theme, developed by the students.  In one semester, for example, the discussion kept returning to race-related issues.  In another, it was tyranny control.  In a third it was different conceptions of liberty.  It is gratifying to teach a class in which one, as the instructor, can learn so much.

I guide the discussion based on what is said about the material in (1) roughly 400-word reaction papers on the week’s reading that students turn in a day or two before a given week’s first class,[1] and (2) scholarly and judicial opinions.  A great deal of what I say challenges claims or assertions in or about the material—whether in a case, a scholarly claim, etc.—or to a comment made by a discussion participant (including myself).  I tell students on the first day that they are free to disagree with anything said in the class, including (and, perhaps, especially) by the instructor.

The course is structured in three parts, generally following my and my coauthors’ book, Firearms Law and the Second Amendment:  Regulation, Rights, and Policy.  The first covers the social science examining firearm use and misuse.  This empirical unit of the course sets a practical baseline from which the remainder of the course proceeds.  The course’s second part is generally arranged chronologically, with some cross-referencing between eras.  For example, when discussing Blackstone’s 1769 Commentaries on the Laws of England, we also discuss St. George Tucker’s early-American 1803 treatment of that work.  We begin with arms rights, duties, and restrictions in the precolonial United Kingdom.  Next is colonial America, followed by American firearms law through District of Columbia v. Heller and McDonald v. City of Chicago.  We then cover the Two-Part Test and its alternatives developed by lower courts to adjudicate Second Amendment claims.  Study of the Test is closely integrated with one area of post-McDonald case law—typically public firearm carriage.  The course concludes by covering material selected by the class.  This student-selected material is typically aligned with the course’s theme.  For the race, tyranny, and freedom themes mentioned above, we would expect to cover the book’s chapter on Firearms Policy and Status, appendix on Tyranny Control, and section on Prohibited Persons.

This dynamic class, which blends the past and present, theory and practice, and normative and positive, typically fills up quickly with students passionate about its subject matter.  It is a delightful semester-long discourse.

[1] I borrowed this feature from my former professor, now coauthor, Nicholas J. Johnson, who used it to great effect in his Gun Control Law class at the Fordham University School of Law.

[Ed. Note: This post is part of a week-long mini-symposium on teaching firearms law.]

Mini-Symposium: Teaching Firearms Law

Especially since the Supreme Court’s 2008 decision in District of Columbia v. Heller, there has been an increased interest not only in writing about firearms law (check out Joseph’s post here), but in teaching classes on it as well. Our admittedly unscientific evidence—personal experience and conversations with others—suggests that student demand is high, and that professors are taking a diverse range of approaches to structuring and teaching their courses.

We’re excited to host a mini-symposium on this blog with accomplished scholars who have been writing and studying these issues for years—some even for decades.

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.