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August 16, 2009

Are there any must-reads (beyond Heller) for my Second Amendment Seminar?

Regular readers know I am interested in the intersection of the Second Amendment and the criminal justice system in the wake of Heller.  My interest is finding expression this coming fall semester — which starts tomorrow(!) at The Ohio State University Moritz College of Law — through the teaching of a Second Amendment Seminar.

Though I am going to have students help shape the direction and content of the seminar, I want to make sure I cover modern Second Amendment essentials.  But, as I assembled a reading list, I started thinking that the only essential read in the modern corpus is just the Supreme Court's decision in Heller

Of course, there are lots of cases and lots and lots and lots of commentary — both pre-Heller and post-Heller — discussing the Second Amendment.  I plan to cover key post-Heller issues like incorporation and standards of review in the seminar, and I will have students read cases and commentaries on these and other topics.  But I am not sure if anything qualifies as a true must-read for discussing and debating the modern Second Amendment other than Heller itself.

Perhaps readers have a different view, and I would be grateful for any input on the topic in the comments.

Cross-posted at LSI

August 16, 2009 at 04:38 PM | Permalink


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The Emerson decision from the Fifth Circuit in 2001 was certainly significant.

United States v. Emerson (click here)

The Second Amendment analysis begins on page 18 of the slip opinion.

Posted by: JC | Aug 16, 2009 6:57:01 PM

Coupla offhand thoughts:

The debate was also fleshed out well in some of the briefs and particularly the amici in Heller, to go beyond the final opinion. Those documents give more background than did the majority opinion about exactly which hairs the court was splitting to reach its conclusions and the implications pro and con.

I think the other key thing about gun rights and Second Amendment law is that many of the most important legal changes (in many cases changes with MUCH more practical significance than Heller) have occurred through state legislatures instead of the courts: E.g., in Texas we passed a law in 2005, strengthening it in 2007, allowing most Texas drivers to carry a handgun in their car if it is not in plain view and they are otherwise legally able to own a firearm. (See the links here for details - it's worth noting the much-predicting road-rage shooting sprees we were assured by opponents would happen never came to pass.) Similarly, "Castle Doctrine" laws have passed in many states (and in Texas are just now beginning to be litigated through the appellate process). And most recently, in Congress states' concealed carry permits laws are running up against federal interstate commerce authority - the documents surrounding that contemporary debate would be probative and highlight a different aspect of 2d Amdt/federalism issues beyond the constitutional "incorporation" issue.

Sounds like a good topic for a seminar.

Posted by: Gritsforbreakfast | Aug 17, 2009 10:55:50 AM

BTW, please post your syllabus when you come up with one!

Posted by: Gritsforbreakfast | Aug 17, 2009 11:00:50 AM

Gotta have Nordyke.

Posted by: Chris | Aug 17, 2009 1:16:15 PM

One thing you might want to consider are definitions. For example, "assault rifle" defies a fair definition. On the one hand it refers to automatic military arms, but on the other it can be a light weight carbine that is excellent for plinking and varment hunting.

A good exercise, in my opinion, would be to have the students look at the actual descriptions of various weapons in light of Heller, and start drawing the boundaries of the 2nd Amendment. If I recall, the Emerson decision relied in great part on a law student's article. Maybe some of your students can make an impression as the courts spend the next several decades deciding what the 2nd Amendment permits.

Posted by: Jared S. Gross | Aug 17, 2009 3:09:38 PM

Please allow me to poke some fun at the notion of "modern" and the Second Amendment. I would state that there is only one "modern" Second Amendment, and that is the one which has existed since the proclaimation of the 14th Amendment. By analogy, one could say that the Supreme Court sleep walked through many years in the face of the 14th Amendment and gave us nonsense like Plessy v. Ferguson. That thereafter a "modern" 14th Amendment right of citizen rears its head begining in the 1930s and then under the Warren Court with Brown v. Board of Education. And perhaps one can say that decisions rendering the Voting Rights Act provisons in certain states as no longer constitutional are "post modern". Our Supreme court is ready to declare statutory provisions of the Voting Rights Act as unconstitutional. Is that modern or archaic? Or perhaps that it is "modern" to allow a county commission to disqualify a voter because they can not correctly answer the question as to how many bubbles there are in a bar of soap.

Regarding the Second Amendmentand 14th Amendment and the right to bear arms. There is a book with the title of "Freedmen, The Fourteenth Amendment and The Right To Bear Arms", by Halbrook. circa 1998.
I read this at the 8th Circuit Library in St. Louis. On previous Second Amendment articles on this blog I mentioned this book. I highly recommend this book.

The point I try to make on 14th Amendment issues is the intent of the Framers. The Framers of the 14th Amendment were in the midst of a civil war. Their intent is no less important than the intent of the Framers of the original constitution and the Bill of Rights where they had just concluded a revolutionary war. Suprem Court justices will often give us yards of paragraphs about the intent of the Framers in enacting the Confrontation Clause of the Fifth and poor old Lord such and such. But when it comes to the 14th Amendment these originalists go silent on "intent of the Framers".
What was the mindset of the Framers in 1864-66?
One historical point can be made regarding the distinction of handguns and long rifles or other larger firearms. When Grant signed off on the surrender at Appomatix he "paroled" the confederate troops. He specifically sent the officers of the rebellion home with their horses, mules and sidearms. That happened on April 9, 1865. The 14th Amendment was proposed June 13, 1866 and ratified and proclaimed on July 28th 1868. Andrew Johnson was President. The 15th Amendment--right to vote -- shall not be abridged by the United States on account of race, color or previous condition of servitude. Proposed Feb 1869 and ratified and proclaimed on March 30, 1870. Grant was President. Both the 14th and 15th Amendments have sections authorizing Congress to enforce the amendments with appropriate legislation.

You might remark to your collegues at the meeting that if Grant paroled the rebels of the Civil War in the year 2009 and sent them home from the battlefields with their sidearms, that he would have to add a caveat. Do not travel through the District of Columbia with those sidearms on the way back to Maryland or Virgina--the Second Amendment and my notion of your right to bear arms will be trumped and you will get busted by the DC cops.

Posted by: mpb | Aug 18, 2009 11:28:57 AM

I find a few things interesting from the big picture perspective:

1. The battle of the historical narratives within Heller--the meaning of the right to bear arms going back at least to the 1680s in England, and how historical narratives are marshaled to serve different desired outcomes in 2009.

2. The potential for a resurrection of the Privileges and Immunities Clause. Include Slaughterhouse, and recent calls for its overruling.

3. The Klarman perspective--that for many, the view on constitutional interpretation depends on the desired policy outcome. Some of the folks calling for incorporation or for resurrection of privileges and immunities now are hardly the folks who favored that approach to the Bill of Rights when it was other amendments at issue (e.g., 4, 5, 6 ....).

Posted by: Def. Atty. | Aug 18, 2009 4:04:29 PM

I agree with Def.Atty on the privileges and immunities clause. For the Second Amendment this is the key to getting votes on both sides of the aisle on the SupCt.
In Mapp v. Ohio members of the Court came aboard when the 4th Amend became the vehicle-- the 4th had hardly been argued in the case. Justices have often wanted to jump ship from the Due Process Clause. Privileges and Immunities needs to have its day. And when General Grant sent those rebels back home to Virginia on April 9, 1865, with their sidearms, he had their privilege of the to bear their sidearms against rattlers in mind as well as their immunity from prosecution by some city gov'ment in the District of Columbia.

Posted by: mpb | Aug 19, 2009 9:40:08 PM

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