2nd Amendment Thread

[de officiis]

Necessary to the Security of Free States: The Second Amendment as the Auxiliary Right of Federalism

Douglas Walker, Jr. - 56 Am. J. Legal Hist. 365 (2016)

Abstract

This article contributes to the debate over the original meaning of the Second Amendment by placing two underappreciated concepts, federalism and auxiliary rights, at the center of the amendment's original meaning. It argues that 18th-century Americans viewed the right to keep and bear arms as an auxiliary right enabling the protection of more fundamental personal rights, rather than as an individual, collective, or civic right. Furthermore, the Second Amendment was ratified in response to Anti-Federalist fears that the nationalization of military power in the new Constitution would permit the federal government to oppress the people and destroy the power of the states. Given this context, this article suggests that the Second Amendment was a jurisdictional amendment that dealt with which level of government had authority to make firearms regulations rather than which regulations were acceptable. It was intended to maintain a balance of military power between the state and national governments by protecting the states' concurrent power to arm, organize, and train their citizen militias free from federal disarmament. In contrast to reigning views, which either permit or forbid gun regulation at both the federal and state levels, adopting this paradigm would prohibit all national firearms legislation but would also undermine support for incorporating the amendment against the states. Although the contemporary practicality of the American founders' solution is questionable, they produced a creative solution to the problem of divided sovereignty in federal republics that deserves to be incorporated into broader accounts of federalism.

https://academic.oup.com/ajlh/article/5 ... States-The

[de officiis]

THE RIGHT TO BEAR ARMS IN RHODE ISLAND

David Strachman - 65 RI Bar Jnl. 13 (2017)

... in Rhode Island, our Constitution has protected the right to keep and bear arms since 1842, yet, until a decade ago, there were no Rhode Island rulings interpreting this fundamental right. In fact, it was not until 160 years later that our Supreme Court first had "the occasion to interpret the nature of the right provided by art. 1, sec. 22 of our Constitution.

Beginning in 2002, a series of local rulings and decisions have begun to create a body of law addressing the civil rights of Rhode Islanders with respect to the right to keep and bear arms. These cases have built significant precedents, attracted national attention, and follow the trend of Second Amendment civil rights litigation throughout the country.

https://www.ribar.com/UserFiles/File/RI ... 7_Jrnl.pdf

[Fife]

HOOK EM HORNS

Why I Bring My Gun to School

The rights and values of gun-owning women aren’t being addressed by either political party. While conservatives aren’t paying enough attention to sexual assault, liberals are actively hurting women’s access to self-defense. Many liberals — including many female professors my organization approached as potential sponsors for Empowered — don’t support a woman’s “right to choose” when it comes to her own self-defense. They can’t get behind a vision of female empowerment that doesn’t match their own.

This is from the NYT Oped page, so there is the normal amount of MHFy frothing in the comments section, e.g., NEEDS MOAR COPS. Entertaining stuff

[de officiis]

U.S. appeals court blocks D.C. law restricting gun rights

(Reuters) - A U.S. appeals court on Tuesday blocked a regulation in Washington, D.C., that limited the right to carry a handgun in public to people with a good reason for self-defense, handing a victory to gun rights advocates.

The U.S. Court of Appeals for the District of Columbia Circuit's 2-1 ruling struck down the local government's third major attempt in 40 years to limit handgun rights in the U.S capital. The decision cited what it said was scant but clear guidance from the U.S. Supreme Court on the right to bear arms.

The District of Columbia may appeal the three-judge panel's ruling to the full appeals court, potentially a more favorable audience as seven of its 11 members were appointed by Democratic presidents. The three judges in Tuesday's ruling are Republican appointees.

Mayor Muriel Bowser did not say whether the city would appeal but noted in a statement that similar laws with concealed-carry requirements were in effect in some states.

Judge Thomas Griffith, writing the majority opinion, said constitutional challenges to gun laws "create peculiar puzzles for the courts," noting that the Supreme Court's first in-depth review "is younger than the first iPhone."

[de officiis]

Second-Class: Heller, Age, and the Prodigal Amendment

Christopher Johnson - 117 Colum. L. Rev. 1585 (Oct. 2017)

This Note examines the constitutionality of age-based handgun-purchase restrictions in the wake of the Supreme Court's decision in District of Columbia v. Heller (Heller I). Part I explores Second Amendment jurisprudence since the Founding and provides an overview of current federal and state firearms restrictions. It also reviews current challenges in the courts to federal prohibitions on firearms purchases and possession by classes defined in the Gun Control Act of 1968. Part II examines the recent challenge to age-based restrictions on handgun purchases as defined by the Omnibus Crime Control and Safe Streets Act of 1968. It also distinguishes the Heller I exceptions and examines age-based restrictions on other fundamental rights. Part III outlines a judicial framework for evaluating age-based restrictions on handgun purchases and proposes a method by which Congress could remedy the arguably unconstitutional infringement on the fundamental right to keep and bear arms by the current law.

http://columbialawreview.org/content/se ... amendment/

[C-Mag]

The way the 2nd Amendment should read, according to Michael Moore.

“A well regulated State National Guard, being helpful to the safety and security of a State in times of need, along with the strictly regulated right of the people to keep and bear a limited number of non-automatic Arms for sport and hunting, with respect to the primary right of all people to be free from gun violence, this shall not be infringed.”

[Fife]

The way the 2nd Amendment should read, according to Michael Moore.

“A well regulated State National Guard, being helpful to the safety and security of a State in times of need, along with the strictly regulated right of the people to keep and bear a limited number of non-automatic Arms for sport and hunting, with respect to the primary right of all people to be free from gun violence, this shall not be infringed.”

The First gets even worse treatment from MM and his lackies, if you can believe it. No joke.

[C-Mag]

The way the 2nd Amendment should read, according to Michael Moore.

“A well regulated State National Guard, being helpful to the safety and security of a State in times of need, along with the strictly regulated right of the people to keep and bear a limited number of non-automatic Arms for sport and hunting, with respect to the primary right of all people to be free from gun violence, this shall not be infringed.”

The First gets even worse treatment from MM and his lackies, if you can believe it. No joke.

Hey, I just got a sneak peak of MM's 1st Amendment.

Congress shall not abridge the freedom to stand on the street and yell at tall buildings.

[de officiis]

Newtown families seek to hold gun maker accountable in Connecticut court

HARTFORD, Conn. (Reuters) - A lawyer for families who lost loved ones in the 2012 Sandy Hook school shooting told Connecticut’s highest court on Tuesday that Remington ... should be held responsible because its military-themed marketing was designed to appeal to young men like killer Adam Lanza.
...
Lanza, 20, used a Remington AR-15 Bushmaster rifle, a semi-automatic civilian version of the U.S. military’s M-16, to kill 20 school children between the ages of 6 and 7, as well as six adult staff members, at Sandy Hook . . . on Dec. 14, 2012. . . . .

Following the conclusion Tuesday’s arguments, the Connecticut Supreme Court will now decide whether the families of nine of the victims and one survivor can proceed with a trial seeking to hold Remington, along with a gun wholesaler and local retailer, responsible for the carnage based on its marketing.

. . .

The families are advancing a somewhat novel legal argument in hopes of overcoming a federal law enacted by U.S. Congress in 2005 to shield gun manufacturers from liability for how their products are used.

Remington’s lawyer, James Vogts, told the Connecticut court that the families’ claims . . . are barred by the 2005 law.

“What happened in the school that morning was horrific,” Vogts said. “But no matter how much we wished those children and teachers were still alive, the law needs to be applied.”

A lower court judge agreed with the gun maker and dismissed the families’ lawsuit in 2016. But the Connecticut Supreme Court agreed to hear the case a week after the families filed their first appeal.

...

The families claim Remington and the other defendants “extolled the militaristic and assaultive qualities” of the AR-15, advertising the rifle as “mission-adaptable” and “the ultimate combat weapons system” in a deliberate pitch to a demographic of young men fascinated by the military.

The families said Lanza was part of that demographic and cited media reports saying he previously expressed a desire to join the army. The rifle was bought by Lanza’s mother, whom he also killed, as a gift for him or for the two of them to share, the lawsuit claims.

The families’ argument is based on the legal doctrine of negligent entrustment, in which a product is carelessly sold or given to a person at high risk of using it in a harmful way. Negligent entrustment is specifically excepted from the 2005 gun maker shield laws.

The argument has historically been used where someone lends a car to a high-risk driver who goes on to cause an accident. It has met with some success in lawsuits against gun shop owners, but legal experts said it has never been used before to target a manufacturer.

David Studdert, a Stanford law professor, said on Monday he thought negligent entrustment was a tough argument for the families to make because it has traditionally involved someone having direct knowledge that another person poses a risk.

If the Sandy Hook families are successful, Timothy Lytton, a law professor at Georgia State University, said on Monday he would expect the U.S. Supreme Court to take up the case.

I would say odds are that the trial court ruling will be affirmed.

[Fife]

I would say odds are that the trial court ruling will be affirmed.

Do they even teach Palsgraf anymore?

N.B.; I'm sure it's still in the casebook. Somewhere.

I'm just riffing on what they are IRL presenting to the 1Ls nowadays.