Articles in Tennessee Law Review Symposium on the Second Amendment

September 12th, 2014

I am honored to be a part of a symposium issue of the Tennessee Law Review, focusing on the Second Amendment. We have pieces from Glenn Reynolds, Dave Kopel, Steve Halbrook, and others. Here are all of the articles in the issue.

The Second Amendment as Ordinary Constitutional Law,” by Glenn Harlan Reynolds.

In recent years, the Second Amendment has gone from a subject of scholarly and political debate with no real judicial role, to a clearly established individual right that is being enforced in lower courts. This Essay, the foreword to a forthcoming Tennessee Law Review symposium on the Second Amendment, explores how that happened, and what is likely to come next.

The First Amendment Guide to the Second Amendment,” by David B. Kopel.

As described in Part I of this article, the Supreme Court has strongly indicated that First Amendment tools should be employed to help resolve Second Amendment issues. Before District of Columbia v. Heller, several Supreme Court cases suggested that the First and Second Amendments should be interpreted in the same manner. Heller and McDonald v. City of Chicago applied this approach, using First Amendment analogies to resolve many Second Amendment questions. Part II of this Article details how influential lower court decisions have followed (or misapplied) the Supreme Court’s teaching. Of course, precise First Amendment rules cannot necessarily be applied verbatim to the Second Amendment. Part III outlines some general First Amendment principles that are also valid for the Second Amendment. Finally, Part IV looks at how several First Amendment doctrines can be used in Second Amendment cases, showing that some, but not all, First Amendment doctrines can readily fit into Second Amendment jurisprudence.

The 1st Amendment, 2nd Amendment, and 3D Printed Guns,” by Josh Blackman.

We are standing at the dawn of the next great industrial revolution. With 3-D printers people can print an infinite number of personalized and customized “things.” However, one manifestation of this bold new technology threatens to cast a specter on innovation: 3D printed guns. This article explores how efforts to regulate, or even ban 3D guns, must satisfy constitutional scrutiny under both the First and Second Amendments. The Second Amendment right to keep and bear arms includes a subsidiary right to acquire arms — what else are you going to keep and bear — which covers both the buyer, and seller in the transaction. Further, the seller has to obtain guns, including newly manufactured firearms. Thus, the Second Amendment supply chain protects a right to make arms. These constitutional guarantees preserve the right to acquire and make firearms, by 3D printer or other means. Prohibitions on sharing and receiving information about 3D guns, in the form of CAD source code files, violate the First Amendment right to free speech. The fact that information about 3D guns is distributed in electronic format does not shield it from the Bill of Rights. Further, the “hybrid” First and Second Amendment right offers heightened constitutional protections when the government attempts to restrict speech about the right to keep and bear arms. I concluded by offering a preliminary analysis of several proposals to regulate 3D guns. First, laws that prohibit the manufacturing and possession of 3D guns, without a showing that the weapons are highly dangerous, would likely be unconstitutional. Second, bans on individuals making and possessing 3D guns for personal use would represent an unprecedented expansion of gun control laws, as there are virtually no regulations on homemade firearms. Third, the application of the International Traffic in Arms Regulation (“ITAR”), designed to keep dangerous weapons and munitions out of the hands of foreign nationals is an an ill-equipped, and as applied unconstitutional means to regulate 3D guns.

Second Amendment Realism,” by David Wolitz.

Glenn Reynolds has written that the “Second Amendment is now ordinary constitutional law.” I agree with that statement, and in this Symposium piece, I argue that the development of Second Amendment jurisprudence and Second Amendment scholarship will now suffer all of the defects that come along with the practice of ordinary constitutional law — including significant and irreducible doctrinal indeterminacy, results-driven reasoning by judges and academics, judicial self-aggrandizement, centralization of decision-making in Washington, DC, and increasing left-right socio-political polarization. All of these factors tend toward a decrease in the legitimacy and prestige of the Supreme Court and a decrease in the legitimacy and prestige of constitutional law as an academic endeavor.

Anti-Evasion Doctrines and the Second Amendment,” by Brannon P. Denning.

This article, written for a symposium on the Second Amendment, examines recent lower court decisions for evidence that courts are — or are not — creating and applying “anti-evasion doctrines” (AEDs) in Second Amendment cases. Such doctrines prevent form-over-substance evasion of constitutional principles on the part of government actors. Early evidence suggests that courts are willing to employ AEDs to frustrate legislative efforts to nullify the core of the right to keep and bear arms for self-defense in the home recognized in Heller and McDonald.

“The Empire Strikes Back: The District of Columbia’s Post-Heller Firearm Registration System,” by Stephen P. Halbrook.

The Second Amendment Wild Card: The Persisting Relevance of the ‘Hybrid’ Interpretation of the Right to Keep and Bear Arms,” by Michael P. O’Shea.

Uncommon Firearms as Obscenity,” by Jordan E. Pratt.

As courts and scholars have begun to navigate the terra incognita that the Supreme Court’s modern Second Amendment decisions opened for exploration, many have sought out the terra firma that the First Amendment can provide. There remains substantial debate over how much guidance First Amendment analogies can offer, but few doubt their ability to yield general lessons in instances when the speech-guns comparison makes sense. Mapping out the constitutional boundaries for gun-type restrictions poses a unique challenge for which guidance is needed. The Supreme Court has held that the Second Amendment does not protect uncommon firearms, but a number of doctrinal puzzles remain. To begin, it is entirely unclear how a test that focuses on gun ownership patterns can be applied to bans on new firearms, which will always lack a pattern of widespread ownership. Additionally, we do not know how high a bar the “common use” test sets, and the Court has not clarified whether this bar will be uniform across the country or instead be tailored to localized variations in gun ownership norms. Nor has it clarified whether the fact-finder or the appellate court bears responsibility for conducting the test. Finally, while uncommon firearms are said to be an “exception” to the Second Amendment, the Court has not squarely foreclosed the possibility of a limited right to possess them in the privacy of the home. This Article offers the first comprehensive exploration of how First Amendment doctrine — and particularly obscenity — can illuminate all of these unresolved doctrinal puzzles. While obscenity and uncommon firearms may at first glance appear to be unusual bedfellows, this Article explains that they share significant, doctrinally relevant similarities. Both are low-value categorical exceptions, and both result from line-drawing tests that focus on common usage. Additionally, both straddle longstanding cultural divides and concern primarily material objects. Furthermore, their possession often does not entail an actual or intended harm to others. This Article concludes that, due to these similarities, an obscenity-inspired framework for uncommon firearms could trigger four developments in Second Amendment doctrine. First, the common use test should set a relatively high national floor for gun-type restrictions by incorporating a prong that asks whether a firearm lacks serious Second Amendment value, regardless of whether it is numerically common. This addition would solve the greatest drawback to the common use test by allowing the test to account for advances in weapons technology and also for current weapons that might have fallen into common use had they not been banned shortly after their invention. Second, above this high national floor, the common use test should be locally tailored to allow room for different communities’ divergent gun cultures by asking whether a firearm is uncommon in a given community, not the country as a whole. Third, the fact-finder should determine whether a gun is in common use, subject to limiting instructions and general guidance from appellate courts. Fourth, even though uncommon firearms may be considered a Second Amendment exception, there may be a limited right to possess them in the home.

Resistance by Inferior Courts to Supreme Court’s Second Amendment Decisions,” by Alice Marie Beard.

In the wake of the Supreme Court’s Heller and McDonald decisions that clarify and protect Second Amendment rights, federal and state inferior courts have been engaging in massive resistance. Supreme Court decisions holding that a right is fundamental require obedience by lower courts if the rule of law is to prevail. The Supreme Court can grant review in another case and reassert its authority to this stubborn resistance. Absent that, legislative fixes are available, and the passage of time and a change in the culture may end the resistance.