The Untold, Somewhat Embarrassing Story Behind the NRA’s Laudatory Messages from President’s Roosevelt, Truman, and Eisenhower

To say the history of gun rights is full of hyperboles, misnomers, and myths would be an understatement.  Time and time again, when historians examine the history of gun rights, it turns out that what is long claimed to be settled history is more nominal than real.  There is an abundance of examples of this, several of which are outlined in my book Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry.

My recent research trip at the Dwight D. Eisenhower Presidential Library shed much light on another historical hyperbole—that Presidents Franklin D. Roosevelt, Harry S. Truman, and Eisenhower each, on their own volition, sent the National Rifle Association (NRA) laudatory messages of support.

Duke Panel Discussion on Extreme Risk Laws

Last night at Duke, we held a fantastic panel discussion with distinguished guests Professors Kristin Goss & Jeffrey Swanson and North Carolina Representative Marcia Morey to discuss Extreme Risk laws, often called Red Flag laws. These are laws that allow law enforcement to temporarily remove firearms from individuals that a court determines are a danger to themselves or others. If the person asking the court to temporarily remove the firearms proves their case, the court can enter what’s usually called an Extreme Risk Protection Order (or ERPO for short) that permits law enforcement to disarm the person who has been found dangerous.

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.

Does the Second Amendment Have a “Private Infrastructure”?

The traditional model of constitutional rights puts the government on one side and individuals on the other; rights restrain the power of the former over the latter. But that model is a little bit over-simplified in a world of pluralistic rights disputes where constitutional interests arise on many sides simultaneously. Once one goes beyond the simple binary model, hard questions arise about who has what kind of duties with regard to rightsholders—including whether and how constitutional rights need some kind of private (that is, non-governmental) “infrastructure.” Those questions are increasingly important for the Second Amendment—I’ll try to frame them here, and offer a few tentative thoughts.

Fourth Circuit Says Victims Can Sue Feds for Background Check Failures

Earlier this year, I wrote about the so-called “Charleston loophole” that permits federally licensed firearms dealers to proceed with sale of a firearm if the background check hasn’t been resolved within three days. That “loophole” gained prominence after the massacre at Mother Emmanuel Church in Charleston, SC in 2015. The shooter’s purchase of the firearm used in the massacre was possible because the government examiner did not complete the background check—and determine that Roof was a prohibited purchaser—within three days. Last month, the Fourth Circuit ruled that the government’s failures that led to that fateful indecision were not immune from a negligence lawsuit filed by the victims.

The Private Sector Leans into Gun Regulation

This week, Walmart and Kroger announced that they will no longer allow open carry in their stores.  Walmart also announced that it would be ending sales of handgun ammunition and some kinds of assault rifle ammunition.  These announcements represent the latest examples of the privatization of the gun debate.  As the political system has either proven gridlocked (at the federal level) or largely pro-gun (at the state level), advocates for stricter gun regulations have increasingly turned to private businesses as a vehicle for reducing gun violence.

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.