Second Amendment

Hofeld on International Responses to Mass Shootings

The Minnesota Journal of International Law recently published a comparative paper from Zachary Hofeld, Studying Abroad: Foreign Legislative Responses to Mass Shootings and Their Viability in the United States.

From the Introduction (footnotes omitted):

As difficult as they are to relive, the horrors of Newtown, Orlando, Las Vegas, and Parkland conceal a horrifying truth: mass shootings–incidents in which four or more individuals are shot and killed (not including the shooter)–are on the rise in the United States. They are occurring more frequentl and have become more deadly. Yet following each unspeakable tragedy, as cries for reform grow increasingly shrill, gun sales rise and legislatures stonewall. Meanwhile, in other developed countries, news-grabbing public mass shootings have powered reform– and with positive results. . . . .

America’s struggle with gun violence is no secret. Some scholars argue that Congress should adopt laws and policies that have successfully limited mass shootings elsewhere. Regrettably missing from this line of research, however, is rigorous evaluation of these measures’ viability–both empirically and legally–in the United States.

This Note seeks to fill that gap by examining developed countries’ legal response to widely-publicized mass shootings and evaluating the viability of those responses, practically and legally, in the United States. Part I supplies the background for this analysis, accomplishing three tasks. First, it provides a general overview of civilian gun laws globally, categorizing different approaches to gun regulation. Second, it tells the story of Australia’s, Germany’s, and Great Britain’s response to gun massacres, highlighting the impetus for reform, the legal response, and, to the extent possible, the effectiveness of the response. Third, returning home, the section provides an overview of U.S. gun law, including both Second Amendment jurisprudence and the federal-state, two-tiered gun regulation system. Part II considers whether the legislative solutions adopted in Australia, Great Britain, and Germany could work in the United States, analyzing, first, whether they address actual shortcomings in U.S. gun law and, second, whether they would comport with the Second Amendment. The Note concludes that despite calls to adopted legal approaches successful abroad, most of these solutions likely are nonviable in the United States because they either do not meaningfully address shortcomings in U.S. gun law or are unlikely to pass constitutional muster. Often, measures that would likely be effective are the ones that would likely fail Second Amendment scrutiny, while measures that would likely pass constitutional muster are the ones that likely would not effectively address the issue, thereby putting the drive to solve this problem on a collision course with the Second Amendment.

What’s in a name? The Evolution of the Term “Gun”

The 1828 edition of the American Dictionary of the English Language (which Justice Scalia cited in District of Columbia v. Heller when he defined “arms,” “keep,” “carry,” and “militia”) defined “gun” as “[a]n instrument consisting of a barrel or tube of iron or other metal fixed in a stock, from which balls, shot, or other deadly weapons are discharged by the explosion of gunpowder. The larger species of guns are called cannon; and the small species are called muskets, carbines, fowling pieces, &c. But one species of fire-arms, the pistol, is never called a gun.”

Twitter Series: Historical Gun Law a Day

The Center’s Twitter account—@DukeFirearmsLaw—has been a way for us to get out information about the Center, interesting scholarship and cases, and news about this blog. And we’ve recently started amplifying laws from the Repository of Historical Gun Laws. Through our new hashtag #HistoricalGunLawADay series, we’ve been highlighting one new historical law every single day, showing the myriad ways that firearms have been regulated throughout Anglo-American history.

Litigation Highlight: United States v. Class (D.C. Cir. 2019)

Last Friday, the D.C. Circuit decided a big Second Amendment case, in which a defendant challenged his conviction for violating the federal law banning firearms on “Capitol Grounds.” In United States v. Class, the panel upheld the regulation against Second Amendment and Due Process challenges. The decision adds important context to the “sensitive places” doctrine that Heller first established, and which the Tenth Circuit previously applied in Bonidy v. United States. But the Class decision also does much more.

Minors and Firearms: A Divided Nation

In my last blog series, I discussed laws currently in the Repository of Historical Gun Laws that relate to the category “Felons, Foreigners and Others Deemed Dangerous By the State.”

I have begun wading into a new category on the Repository over the past few weeks: “Possession By, Use of, and Sales to Minors.” Recently, I organized these laws into three groups: (1) laws that address all firearms, (2) laws that address concealable weapons or weapons worn concealed, and (3) laws that address only pistols and revolvers. I translated these groups onto a map, and what emerged was a hard line across the country, dividing the map into the North and the South.

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.]