Supreme Court

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?

SCOTUS Watch: Daniel v. Armslist, LLC

In 2012, Zina Daniel Haughton obtained a restraining order against her husband after he threatened to kill her. This restraining order prohibited the husband from possessing a firearm. Nonetheless, a few days later he posted a want ad on armslist.com seeking to buy a gun. He found a willing seller, arranged a meeting in a parking lot, and purchased the gun. The next day, he took the gun to Zina’s workplace and used it to murder Zina and two others before turning the gun on himself. Zina’s daughter, Yasmeen Daniel, sued Armslist for allowing the sale to occur, and has now asked the Supreme Court to review the Wisconsin Supreme Court’s unfavorable ruling.

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.

Where Are All the Second Amendment Circuit Splits?

Gun debates are notoriously contentious and controversial, and they seldom lead to consensus. Gun litigation is a different story. In the hundreds of Second Amendment challenges in the federal courts since Heller, there has been surprising judicial agreement. Among federal courts of appeals, there is near-consensus on most questions. There are some noteworthy circuit splits, to be sure, but those are localized and limited. The more surprising aspect of federal circuit court treatment of the Second Amendment is how well-settled so many issues have become only a decade into the existence of a legally enforceable individual right.

Common Cause, Clear Standards, and Heller’s Second Amendment

 

In Rucho v. Common Cause, the Supreme Court declared that partisan gerrymandering is a nonjusticiable political issue.  Two factors seem key to the Court’s holding: the difficulty of finding a manageable standard to assess such claims and the thorny expansion of judicial review into an area of deep political controversy. Some of these same concerns permeate Second Amendment litigation; but, perhaps surprisingly, they gave the Heller majority no pause when it first announced an individual right to keep and bear arms.

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.

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.

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.]