By Joseph Blocher, FoNoah Levine

Litigation, scholarship, and commentary about gun rights and regulation tend to focus nearly exclusively on the Second Amendment’s right to keep and bear arms—a constitutional guarantee that was for all intents and purposes legally inert until the Supreme Court’s decision in District of Columbia v. Heller. But to fully understand the landscape of gun litigation, it is important also to account for other constitutional gun rights claims—those that do not derive, at least not directly, from the Second Amendment.

In Part I of this short Article, we highlight some of the most prominent of these claims, including those deriving from the Due Process Clause, Takings Clause, and the First Amendment. Our goal in doing so is primarily to describe and illustrate, not to evaluate, though it is worth noting that some of these claims appear much stronger than others—and perhaps stronger than some courts have credited. Moreover, and perhaps surprisingly, some of these constitutional claims sometimes cut against the interests of gun owners (for example by calling into question the constitutionality of “parking lot” laws that require private business owners to permit guns on their property).

In the second Part of the Article, we address two broad and more speculative questions. First, how do these constitutional claims interact with more traditional Second Amendment arguments? Evaluating that question suggests much about how litigants perceive the relative strength and utility of their rights—for example, whether other rights are a more fruitful basis for gun-related claims. And, going forward, the answers will depend greatly on what the Supreme Court decides in the pending case of New York State Rifle & Pistol Association v. Bruen, which involves the question of whether the right to keep and bear arms extends outside the home.

We conclude by asking what this polycentric constitutional understanding of gun rights illustrates about the constitutional rights and interests of others, including those who support gun regulation as a means to preserve not only their own physical safety, but their freedom to engage in free speech, assembly, worship and other constitutionally salient activities.

77 New York University Annual Survey of American Law 175-198 (2022)

By John Rorabacher

The Founding Fathers of the U.S., with good reason, were fearful of governments that did not submit to or grant individual human, natural rights. One of these was the right of self-defense. For these men, an armed society was a hedge against tyranny. The Second Amendment through debate and mis-transcription assumed a somewhat different character than that envisioned by the Founding Fathers. As a consequence, this amendment remained the focus of repeated contention until 2008, when the Supreme Court, for the first time, defined the individual rights of each citizen to defend him or herself. Nevertheless, today, the use of firearms in America, when viewed superficially, gives one the impression of a nation bent on destroying itself through unbridled homicide and suicide. This is borne out by the sheer number of deaths attributed to guns annually in America. However, sheer numbers can be deceiving and cannot be used for comparative purposes. In this paper, we examine the history of guns in the U.S., searching for the causation of gun-related homicide. We also examine Pieter Spierenburg's thesis that democracy came too early to America.

Barrie, ONT: Dark Horse Press, 2014. 134p.

By Leila Nadya Sadat and Madaline M. George

Our research revealed a startling and incontrovertible fact: gun violence in the United States has reached crisis proportions. In 2017, the most recent year for which hard data is available, 173,500 people were shot, over 39,700 of which died: 60.0% from suicide, 36.6% from homicide, 1.4% from legal intervention, and 1.2% from unintentional (accidental) deaths.2 On average in 2017, nearly 109 people died from guns and another 366 suffered nonfatal firearm injuries every day. … The proliferation of firearms is also of concern. While the percentage of the population owning guns has decreased, the number of civilian firearms in circulation in the United States has grown. Indeed, by some estimates, 2009 marked the first year that the number of civilian guns in the United States surpassed the total U.S. population. …Studies clearly demonstrate the serious psychological impact and negative developmental effects of school shootings on students and others across the country, far beyond the school and district immediately affected...

St. Louis, MO: Whitney R. Harris World Law Institute, Washington University in St. Louis, School of Law, 2019. 121p.