Second Amendment

Scholarship Highlight: James B. Jacobs & Zoe Fuhr, “The Toughest Gun Control Law in the Nation” (NYU Press 2019)

Yesterday, amici filed briefs in support of the City in New York State Rifle & Pistol Association Inc. v. City of New York—the Second Amendment case that many thought (and some still think) might be a blockbuster. (Full disclosure: Along with Darrell Miller and Eric Ruben, I submitted an amicus brief in support of neither side.) There is much to say about the implications for the future of the Second Amendment, but the strange saga of NYSRPA so far also raises interesting questions about the law and politics surrounding New York’s gun laws.

The “Handgun Article” in Justice Powell’s Papers

Twenty seven years ago this week, Justice Powell’s clerk sent him a lengthy fax with the subject line “Handgun Article.” Along with Justice Stevens’ post-retirement commentary (about which Darrell and I will have more to say shortly), I think it might be the most thorough statement of a Justice’s views on guns and the Second Amendment outside a legal opinion—that is, of course, if they’re actually his. And yet, until recently, I’d never even seen it.

Firearms Law Works-in-Progress Workshop

On Friday, the Center for Firearms Law hosted the first of what we hope will become an annual Firearms Law Works-in-Progress Workshop. The immediate goal was to give scholars—especially those new to the area—a chance to engage with another’s work. More broadly, and in keeping with the Center’s overall mission, our hope was to help build a scholarly community and to broaden and deepen firearms law as a scholarly discipline.

Book Mini-Symposium Part V: The Hard, Simple Truth of Gun Control

There is one, and only one, form of gun control that has been shown to reduce murders: anything that reduces the number of handguns in general circulation. Handguns matter most because they account for at least two-thirds of gun-related murders and about half of all murders. No other affluent nation has anything approaching the level of lethal violence as does the United States. That is the case, quite simply, because other nations rigorously restrict handgun possession. Most so-called commonsense measures that U.S. politicians, and the gun control movement itself, promote have not been shown to reduce lethal violence. Moreover, the regulatory model that both gun rights advocates and gun control advocates support – denying guns to the untrustworthy while allowing the trustworthy to possess them – is patently unworkable. It is, and will always be, impossible to effectively differentiate between the two groups. That is the hard, simple truth about gun control.

Book Mini-Symposium Part IV: Good Moms with Guns

Read the headlines: Toddler shoots and kills mother. Police officer’s toddler son kills himself with his father’s service weapon. Toddler kills older sibling despite being trained in gun use.  In addition to killing others, small children suffer accidental self-inflicted gunshots, inadvertently are killed by siblings or playmates, and some are accidentally (or purposely) shot by adults. With facts like these, how could any “good” mom keep a gun in her home? Still others think a “good” mom should have a gun to protect herself and her children and failure to have one is parental irresponsibility.

To understand these seeming contradictions, I interviewed good moms with guns and toddlers. The good moms with guns that I interviewed expressed what I term a “relational right” to their guns. By “relational,” I mean that the guns have come to represent important, primarily male relationships in their lives. There are three archetypical “good moms with guns:” committed; compromising; and convinced. I provide an example of each.

Book Mini-Symposium Part III: Guns, Interpretation, and Executive-Branch Constitutionalism

This chapter focuses on a relatively unnoticed group of actors in the ongoing story of guns and the Constitution: state and local government officials. These ground-level actors include police officers and sheriffs, mayors, even attorneys general and governors; a focus on these officials, and the sites at which they encounter, respond to, and help shape the meaning of the Second Amendment—from amicus briefs to claims of interpretive autonomy to non-enforcement of state or federal gun laws—can help shed light on how constitutional meaning is made.

Book Mini-Symposium Part I: Militias, Bearing Arms, and the Forgotten Language of Eighteenth-Century Rights

Although most modern Americans could easily dispense with the militia clause of the Second Amendment, eighteenth-century Americans generally believed that the preamble’s affirmation of the necessity of a well-regulated militia was far more important than asserting a right to keep and bear arms. Indeed, most of the first state constitutions did not even mention the right to bear arms.  Additional evidence of this view may be found in Federalist William Rawle’s comments on the meaning of the Second Amendment in A View of the Constitution of the United States. Rawle described the right to bear arms as a corollary of a well-regulated militia.

Book Mini-Symposium: Guns in Law

We’re happy to announce another mini-symposium on the blog. This time, we have pieces from the contributors to the book Guns in Law, a collection of articles published this year by the University of Massachusetts Press and edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey. The contributors will summarize the main themes of their essays in the book, and we’ll be sharing these posts this week and next. I’ll update this introduction with links once the posts are all published. [Updated with links]

The book explores the changing meaning of guns and the methods to address gun violence. As the editors note, “Like other rights, gun rights are embedded in a continuing struggle over the boundaries of permissible regulation and permissible uses of guns.” This struggle continues unabated, notwithstanding the Supreme Court’s announcement in 2008 that the Constitution protects the right of law-abiding citizens to keep and carry firearms for self-defense. With contributions from historians, legal scholars, and sociologists, the volume exposes the rift in contemporary American society over the appropriate role of guns in public (and private) life.

For our mini-symposium, we have pieces from many of the contributors, including:

  • Saul Cornell, The Changing Meaning of the Right to Keep and Bear Arms: 1688-1788[Link here]
  • Darrell Miller, The Expressive Second Amendment. [Link here]
  • Katherine Shaw, Guns, Interpretation, and Executive Branch Constitutionalism. [Link here]
  • Carl T. Bogus, The Hard, Simple Truth About Gun Control. [Link here]
  • Laura Beth Nielsen, Good Moms with Guns. [Link here]

The book is an excellent look at an increasingly relevant aspect of firearms law.

The Similar Debates Over Gun Rights and Abortion

Arguments about the right to keep and bear arms and the right to reproductive autonomy share a number of similarities. And, shortly after Heller, Judge J. Harvie Wilkinson underscored similarities in the how Court’s decisions in Roe and Heller removed controversial political issues from the realm of democratic choice, in what Judge Wilkinson thought improper and unjustified ways. The similarities in both rights debates have always stood out to me.