By Kelly Roskam, Chiara Cooper, Philip Stallworth, and April M. Zeoli

For more than a decade after the Supreme Court held that the Second Amendment protected an individual right to possess a handgun i  the home for  self-defense in District of Columbia v. Heller, 1 courts relied on the well documented connection between domestic abusers and firearm violence to uphold the laws prohibiting persons subject to domestic violence protective orders (DVPOs) from purchasing or possessing firearms. Research finds that these laws are associated with reductions in intimate partner homicide, making them a valuable tool for protecting victimized partners.2 However, the constitutionality of those evidence-based laws is now in question due to the sea change in Second Amendment jurisprudence represented by New York State Rifle and Pistol Ass’n v. Bruen. 3 Bruen repudiated the use of tiers of scrutiny and requires that the government bear the burden of showing that a modern law is relevantly similar to historical firearms laws to be constitutional.4 The Supreme Court has granted certiorari in United States v. Rahimi5 to decide whether the 30-year-old federal law prohibiting the purchase and possession of firearms by persons subject to DVPOs, 18 U.S.C. § 922(g)(8), is consistent with the Second Amendment. Before Bruen, public health research played a straightforward role in Second Amendment analyses of § 922(g)(8). Lower courts had no trouble using such research in their tiers-of-scrutiny analyses to determine that reducing firearm-involved domestic violence was an important    governmental interest and that there was a reasonable fit between § 922(g)(8) and that interest. After Bruen, public health and social science research plays a more nuanced role in Second Amendment analyses. Such research must be connected to an underlying historical argument that implicates either the original plain text of the Second Amendment or the relevance of an historical analogue. 6 In this Article, we illustrate how this connection can be made in the context of § 922(g)(8). We first introduce § 922(g)(8) and discuss how state analogs do or do not implement its proscription of firearm possession by those subject to DVPOs. We then lay out the relevant legal background, including Heller, post-Heller Second Amendment case-law concerning § 922(g)(8), and Bruen, before turning to the meat of our argument. We next discuss Rahimi and other post-Bruen cases addressing § 922(g)(8), arguing that the law satisfies Bruen’s requirement that statutes regulating firearm access must be sufficiently similar to historical firearm laws. We argue that firearm-involved domestic violence is an “unprecedented societal concern” that requires a more nuanced approach to analogy.7 A myopic search for founding-era bars on firearm possession by domestic abusers ignores both important differences in social norms surrounding women, marriage, and domestic violence and the significantly increased role of firearms in domestic violence today. Instead, § 922(g)(8) is more aptly analogized to historical laws evidencing the longstanding tradition of prohibiting “dangerous people from possessing guns,”8 such as so-called “going armed laws,” surety laws, and racist and discriminatory laws that prohibited firearm possession by enslaved persons, Native Americans, Catholics, and those who refused to swear loyalty oaths.

United States, 51 Fordham Urb. L.J. 2023, 39pg

By Everytown for Gun Safety and Johns Hopkins Center for Gun Violence Solutions 

Extreme Risk Protection Order (ERPO) laws create an opportunity to intervene and prevent firearm violence when there are warning signs that an individual poses a risk of harm to self or others. While ERPO laws are relatively new, a growing body of research demonstrates the potential for these laws to prevent firearm violence, particularly firearm suicide, and multiple victim/mass shootings. Interest in ERPO laws has increased in recent years, with 16 states having enacted these laws between 2018 and 2023. Implementation varies widely across and within states. As a result of strong ERPO implementation efforts in some jurisdictions, more information is now available for state and local leaders about how to implement and adapt ERPO laws for their own communities. In addition, the Bipartisan Safer Communities Act of 2022 included $750 million in new federal grant funding for states, some of which is designated to support ERPO implementation. To meet this moment, the Everytown for Gun Safety Support Fund and the Johns Hopkins Center for Gun Violence Solutions have partnered to compile this guide of the best available practices and promising approaches to effective implementation of extreme risk laws. These recommendations are informed by conversations with individuals who are pioneering ERPO implementation, in addition to the best practices shared at a December 2022 convening of ERPO leaders from around the country.   

New York: Everytown for Gun Safety. 2023, 52pg

By Andrew Willinger

Extreme Risk Protection Orders (ERPOs) are civil court orders that temporarily prohibit gun purchase and possession by people who are behaving dangerously and at risk of committing imminent violence. As of September 2023, ERPOs are available in 21 states and the District of Columbia. This Article presents an overview of ERPO laws, the rationale behind their development, and a review and analysis that considers emerging constitutional challenges to these laws (under both the Second Amendment and due process protections) in the post-Bruen era. This Article notes that the presence of multiple constitutional challenges in many ERPOrelated cases has confused judicial analysis and argues that, especially in light of Bruen’s novel text, history, and tradition test, courts should be especially careful to clarify how cumulative-rights arguments are impacting their analysis. An examination of Second Amendment court decisions concerning another type of civil protection order, Domestic Violence Protection Orders, informs the approach used to further consider ERPO rights deprivation claims and the constitutionally relevant distinctions among different civil dispossession proceedings. The Article further considers the state of ERPO law in the context of the evolving evidence documenting the uptake and impact of ERPOs on gun violence in the United States, including a review of scholarship that seeks to  understand how ERPO statutes are being implemented and to determine whether the laws prevent interpersonal gun violence and suicide. Finally, this Article concludes with a commentary and set of recommendations to inform the practice and future scholarship of ERPO as a tool for preventing gun violence in the United States, in accord with constitutional protections in the post-Bruen age.

United States, Number 1 Public Health, History, and the Future Of Gun Regulation after Bruen. 2023, 64pg

By Rebecca Valek, Cassandra Crifasi, and Alex McCourt 

Gun violence rates in the U.S. have reached all-time highs in recent years.1 Overall, in 2022, more than 48,000 Americans died by guns.2 Since 2019, the rate of gun deaths in the U.S increased 21%.3 These increases in gun deaths have especially impacted young Americans.4 Between 2013 and 2022, rates of gun deaths among children and teens increased 87%.5 Nearly 4,600 American youth (aged 1–19) were killed by guns in 2022, fueled by increases in both homicide and suicide.6 Increased deaths have prompted Americans to call for legislative action.7 Despite the growth in dissatisfaction with U.S. gun laws and high levels of support for stricter gun legislation, some gun laws have become more permissive in the past two decades, particularly in states with Republican majorities.8 Supreme Court decisions have accelerated this shift, beginning with District of Columbia v. Heller in 2008, which expanded the understanding of the Second Amendment to include an individual right to own handguns for self-defense, and McDonald v. City of Chicago in 2010, which held that the Second Amendment applies to state and local governments.9 These decisions, along with the 2022 decision preventing states from requiring proper cause to obtain concealed carry licenses in New York State Rifle & Pistol Association Inc. v. Bruen, have expanded gun rights and limited the abilities of state legislatures and Congress to regulate gun violence.10 John Feinblatt, president of the nonprofit gun violence prevention advocacy group Everytown for Gun Safety, described the Bruen decision as “out of step with the bipartisan majority in Congress that is on the verge of passing significant gun safety legislation, and out of touch with the overwhelming majority of Americans who support gun safety measures.”11 At a time when gun violence has become the leading cause of death of Americans under 20 years old, the successful enactment and implementation of such highly supported policy is essential.12 Public opinion can directly affect legislative and executive actions and, while the effect on the judiciary may be less clear, there is often a connection between public opinion and court decisions.13 Many scholars have noted a significant influence of public mood and public opinion on the decisions of the Supreme Court.14 The Supreme Court’s sociological legitimacy, a term used by legal scholars to refer to the public’s view and respect of the Court, depends largely on the extent to which the Court’s decisions align with public opinion.15 When the Court’s decisions are affected by public opinion to promote sociological legitimacy, the Court’s legal legitimacy — or its Justices’ consistent application of their preferred approach to interpreting the law — may be diminished.16 In Bruen, the majority of the justices adopted an approach that uses elements from originalism and textualism without adhering completely to either.17 The Bruen standard requires courts to evaluate gun laws by looking to text, history, and tradition to determine whether the law at issue is “consistent with the Nation’s historical tradition of firearm regulation.”18 To date, very few courts have evaluated age-restrictive gun laws, but legislatures continue to adopt new gun laws and courts, including the Supreme Court, are hearing new Second Amendment-related challenges.19 Public opinion will play a role in this process. The views of the public — both nationwide and in specific constituencies — may affect what gun policies are introduced and enacted by legislators, what laws are challenged in court, and what decisions courts reach in those challenges. In addition, as courts continue to grapple with Bruen and its standards, public opinion — whether historical or modern — may shape how judges think about history and tradition. Age-related gun laws may be of particular interest as rates of gun violence among youth have elevated and government officials evaluate existing laws and explore new laws in their search for solutions.    

United States, Fordham Urb. L.J. 117. 2023, 40pg