Second Amendment

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. [Updated with links.]

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.

Miniseries, Part III – Felons and Persons with a Mental Impairment

[Ed. Note: As we discussed here, this post is part of a three-part series on gun laws in the Center’s Repository of Historical Gun Laws, written by Center research assistant Catie Carberry. This post, like the Repository, is exemplary and not exhaustive.]

Felons

Were bans on convicts possessing firearms “unknown before World War I?”

Miniseries, Part II – Disarmament of those Disaffected to the Cause of America

[Ed. Note: As we discussed here, this post is part of a three-part series on gun laws in the Center’s Repository of Historical Gun Laws, written by Center research assistant Catie Carberry. This post, like the Repository, is exemplary and not exhaustive.]

Who was disarmed at the time of the founding?

Miniseries, Part I – A Brief Overview of Laws Addressing Nonresidents and Aliens

[Ed. Note: As we discussed here, this post is part of a three-part series on gun laws in the Center’s Repository of Historical Gun Laws, written by Center research assistant Catie Carberry. This post, like the Repository, is exemplary and not exhaustive.]

Are laws banning aliens from keeping guns a “post-World War I phenomenon?”

Mini-Series on Historical Gun Laws: Felons, Foreigners, and Others Deemed Dangerous

This week, we’re fortunate to have a three-part series by one of the Center’s excellent summer research assistants, Catie Carberry. Catie’s posts will provide an overview of the historical gun laws in the Center’s Repository of Historical Gun Laws, the largest publicly available single-site compilation of historical regulations of firearms. The Repository is the result of more than four years of painstaking research, but makes no claim to completeness. Rather than purport to include every firearm-related law (an impossible task), it is designed to provide a broad, deep, and representative sample of the kinds of gun laws that have existed throughout English and American history.