Supreme Court

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.]

“A Rogue’s Gallery of Offenses”: Implications of Rehaif and Davis for Prosecuting Gun Crimes

In the past week, the Supreme Court issued two decisions likely to have a major impact on gun prosecutions: Rehaif v. United States, in which the Court tossed out an immigrant’s conviction for unlawful possession of a firearm, and United States v. Davis, in which the Court tossed out a pair of convictions for possessing a firearm during a crime of violence. Justice Kavanaugh chronicled a list of crimes potentially imperiled by Davis. Justice Gorsuch dismissed the relevance of this “rogue’s gallery of offenses.” How should we understand these decisions?

“Presumption of Constitutionality”

On Thursday, in American Legion v. American Humanist Association, the Supreme Court held that a Latin cross installed over ninety years ago on public land to commemorate fallen World War I soldiers did not violate the Establishment Clause.    In doing so, Justice Alito, writing for the plurality, shied away from the much-criticized Lemon test and instead opted for “a presumption of constitutionality for longstanding monuments, symbols, and practices” that have religious connotations.

Forging Con Law Through a Gun Regulation Lens

In reading the Supreme Court’s recent double-jeopardy opinion, Gamble v. United States, it struck me just how many major constitutional law cases involve guns and guns laws, even if sometimes at the periphery. Gamble, for instance, complained that his state law conviction for being a felon in possession of a firearm precluded his indictment under 18 U.S.C. § 922(g)(1). Like in Gamble, the regulations of firearms have played a supporting role in many major cases residing in the constitutional law canon.

Changed (Judicial) Circumstances

In a sign that litigants are hoping the changed composition of the Supreme Court—Justice Kavanaugh’s replacement of Justice Kennedy—will lead to reconsideration of some lower court Second Amendment precedents, plaintiffs recently brought a lawsuit challenging Maryland’s requirement that an applicant for a concealed carry permit show a “good and substantial reason” in order to obtain one.

How Many People Were Ever Prosecuted Under the Laws Challenged in Heller, McDonald, and NYSRPA?

In Heller, McDonald, and now potentially in NYSRPA, the Supreme Court established Second Amendment principles that have been the basis for more than 1,000 Second Amendment challenges in the past ten years. Notably, each of the Supreme Court’s cases involved an outlier law—DC and Chicago were the only notable US cities with handgun bans, and New York’s law is such an oddity that the city itself has effectively disclaimed any interest in it.