Second Amendment

  • November 17, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA Law. Winker is author of Gunfight: The Battle over the Right to Bear Arms in America.

    As the Supreme Court has made clear, the Second Amendment is not an insurmountable barrier to gun control. President Barack Obama should not let the stalemate in Congress be one either. That’s why I, along with numerous other law professors, signed the “Statement of Law Professors on the Constitution and Executive Action to Reduce Gun Violence.” Even in the absence of new federal gun legislation to require every gun buyer to pass a simple background check, the president should continue to seek ways to reduce gun violence through executive action.

    Although Obama’s use of executive powers follows longstanding presidential tradition, it has proven controversial. Some have suggested – incorrectly – that executive action on guns would be unauthorized under the Constitution or undermine the Second Amendment right to keep and bear arms. In fact, however, the Second Amendment gives the government wide leeway to regulate guns to enhance public safety. Moreover, the Constitution vests Obama with the obligation to insure that congressional mandates “be faithfully executed,” enabling him to take executive action.

    Executive action designed, for instance, to clarify existing federal statutes is clearly within the president’s power. The president can, and should, clarify when a gun seller is “engaged in the business” of dealing firearms and thus required to have a federal license. He should also apply the existing federal law barring gun possession by people convicted of misdemeanor crimes of domestic violence to non-married couples and prioritize prosecution of illegal gun buyers. None of these reforms undermine the individual’s right to keep and bear arms for self-defense.  

    As with all individual rights, the president should be sure to pursue only those executive actions that do not infringe the Constitution. As the Statement suggests, however, there is much President Obama can still do to reduce gun violence well within the Constitution’s boundaries.

  • October 21, 2015
    Guest Post


    by Eric Ruben, Jurisprudence Fellow, The Brennan Center for Justice at New York University School of Law @ericmruben

    On December 14, 2012, it took Adam Lanza less than five minutes to fire 154 bullets and kill 20 first-graders and six faculty members at Sandy Hook Elementary School. His weapon of choice was his mother’s Bushmaster AR-15—the civilian, semi-automatic version of the fully-automatic M-16 military rifle—which Lanza outfitted with magazines holding 30 rounds each. In the wake of the carnage, New York and Connecticut passed a series of gun-safety provisions, including bans on large-capacity magazines (LCMs) and assault weapons like the AR-15. Predictably, gun-rights advocates challenged the laws as violating the Second Amendment. On Monday, a three-judge panel of the Second Circuit unanimously upheld the bans in New York State Rifle and Pistol Association v. Cuomo (NYSRPA).

    The New York and Connecticut laws were not the first legislative attempts to restrict assault weapons, and the Second Circuit’s opinion was not the first time such restrictions have been upheld in court. In 1994, President Bill Clinton signed a national assault weapon ban, which withstood challenges based on purported violations of the commerce and equal protection clauses. Unsurprisingly, the Second Amendment was not prominent in these lawsuits. At the time, the Second Amendment was understood by most courts to have an extremely limited scope. That changed in 2008, however, when the Supreme Court decided District of Columbia v. Heller and interpreted the Second Amendment to protect an individual right to possess a handgun in the home for self-defense. While Heller dealt with a restriction on handguns, it invited Second Amendment challenges to all firearm restrictions, including bans on assault weapons.

    The federal assault weapon ban lapsed in 2004, which is why Lanza’s mother could legally buy the AR-15 used in Sandy Hook. Since then, the legality of assault weapons and LCMs has varied by state and locality, with elected officials in at least eight states and the District of Columbia passing variations of the federal ban. In the past several years, the D.C. Circuit and Seventh Circuit rejected Second Amendment challenges to two such bans. Notably, these opinions were drafted by conservative judges Douglas H. Ginsburg and Frank Easterbrook. District courts in both Maryland and Colorado have also upheld prohibitions on assault weapons and/or LCMs in cases now pending in the Fourth and Tenth Circuits.

  • October 13, 2015
    Guest Post

    by Saul Cornell, Paul and Diane Guenther Chair in American History, Fordham University

    It is hardly surprising to find amicus briefs by both gun rights groups and gun violence prevention groups in a major gun related case such as Wrenn v. District of Columbia. The issue in Wrenn, the scope of the right to travel armed in public, is one of the hottest being litigated since the Supreme Court decided District of Columbia v. Heller, its controversial five-to-four gun rights decision. If the broad amicus interest in the case is to be expected, there is at least one surprising—and sneaky—aspect of the strategy pursued by one of the amici: the National Rifle Association. In Wrenn, the NRA has essentially taken an end-run around the word limits on amicus briefs by submitting two briefs—one under its own name and another by a group of gun rights advocates with close ties to the NRA, which the NRA represents as a scholarly brief by historians. Even more troubling is the attempt by one of the latter brief’s signers, David Kopel, a long time gun rights and libertarian activist to trumpet their brief on The Volokh Conspiracy, a widely read libertarian law blog that is now hosted by The Washington Post.

    The NRA “historians'” brief was submitted on behalf of a gun-rights foundation in California and five individuals, only two of whom have PhD’s in history or a related discipline. One of those, Joyce Lee Malcolm, holds an NRA-funded chair at George Mason law school. It is the only chair I can think of which seems to carry an ideological litmus test for its holder. The other full time scholar on the brief, Robert Cottrol, is one of the trustees of the NRA’s Civil Rights Defense Fund.

    The mere fact that one takes funding from a source with a particular ideological or policy agenda does not, of course, necessarily discredit the actual research produced with those funds.  That must ultimately be judged on its own merits. (Full disclosure:  About a decade ago I received a grant from a foundation interested in gun control, although my research challenged the prevailing  collective rights theory of the Second Amendment then supported by the foundation.) And none of this would matter in the end if the facts presented in the NRA historians' brief were accurate and the arguments it made historically plausible. Unfortunately, neither of these turns out to be the case.

  • September 29, 2015

    by Jim Thompson

    Richard L. Hasen at Talking Points Memo contends that the future composition of the Supreme Court is “the most important civil rights cause of our time,” for it will determine the fate of many current civil rights struggles.

    In The Washington Post, Geoffrey R. Stone and Will Creeley urge colleges and universities to publicly reaffirm their commitment to free speech on campus.

    In Washington Monthly, Steve Sanders criticizes the Christian right for hijacking the term “religious liberty,” which once reflected a bedrock American value, and abusing it such that it “became just another synonym for bigotry.”

    G. Ben Cohen and Michael Admirand at the Harvard Law and Policy Review discuss the fallibility of finality in the legal system, especially in cases involving capital punishment.

    Eric M. Ruben and Saul Cornell in The Yale Law Journal argue that recent decisions to strike down bans on the public carrying of handguns are rooted in nineteenth century Southern opinions that reflect a regional, outdated conception of the Second Amendment.

  • June 15, 2015
    Guest Post

    by Eric Ruben, Jurisprudence Fellow, The Brennan Center for Justice at New York University School of Law

    Tomorrow, an en banc panel of the Ninth Circuit will rehear oral arguments in Peruta v. County of San Diego, a case that spawned an originalist opinion last year that would have drastically increased the number of people publicly carrying handguns in California and Hawaii.

    California, Hawaii, and seven states outside the Ninth Circuit have “may issue” laws and policies requiring applicants to show a heightened need for self-defense — something beyond a generalizable fear of being attacked — before they can receive a permit to carry concealed handguns in public. The plaintiffs in Peruta wanted to carry handguns, could not satisfy this requirement, and sued in federal court alleging a violation of their Second Amendment rights.

    Peruta represents one of the most significant Second Amendment cases since 2008, when the Supreme Court decided District of Columbia v. Heller. In Heller, the Supreme Court held for the first time in over 200 years that the Second Amendment protects an individual right to possess a handgun inside the home for self-defense. In 1791, when the Second Amendment was adopted, modern semi-automatic firearms didn’t exist and elected officials weren’t struggling to find solutions to a massive gun crime problem. But Heller expressly rejected an analysis that took into consideration the government’s interest in dealing with a deadly modern-day problem. Rather, the Heller majority, in an opinion by Justice Scalia, relied almost exclusively on an historical analysis for its conclusion, asserting that “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them.” The history considered in Heller, however, arguably does not dictate Heller’s holding. Liberal and conservative commentators alike have criticized Heller’s originalism for providing a misleading historical cloak for an activist judicial ruling.

    Heller left unresolved many obvious issues, such as the scope of the right to bear arms outside the home and how lower courts should decide Second Amendment challenges — through a purely originalist analysis or by applying means-ends scrutiny that would take into consideration the government’s interest in preventing violent crime, death, and injuries. Those issues have been considered by lower courts in the hundreds of legal challenges to firearm regulations since Heller, and they are at the heart of Peruta.

    The Second, Third, and Fourth Circuits have held that “may issue” laws like California’s in New York, New Jersey, and Maryland are constitutional. Those courts, and the majority of lower courts considering Second Amendment challenges since Heller, have refrained from grounding their decisions in originalism. The rejection of originalism as the sole basis for decision making is likely a reflection of the fact that (as in Heller) the history is often disputed and busy judges are neither trained nor equipped to answer nuanced historical questions on the basis of necessarily limited records. When the Second Circuit considered New York’s “may issue” statute in 2012, it found the history “highly ambiguous” and upheld the law under intermediate scrutiny, concluding that the law was substantially related to the achievement of an important government interest — public safety and crime prevention. The Third and Fourth Circuits employed similar analyses to uphold New Jersey’s and Maryland’s “may issue” laws in 2013.