By Jacob D. Charles

In popular and professional discourse, debate about the right to keep and bear arms most often revolves around the Second Amendment. But that narrow reference ignores a vast and expansive nonconstitutional legal regime privileging guns and their owners. This collection of non constitutional gun rights confers broad powers and immunities on gun owners that go far beyond those required by the Constitution, like rights to bring guns on private property against an owner’s wishes and to carry a concealed firearm in public with no training or background check. This Article catalogues this set of expansive laws and critically assesses them. Unlike the formal constitutional guarantee, this broad collection is not solely libertarian, concerned only with guaranteeing noninterference with a negative right. Instead, it is also aggressively interventionist, countermanding contrary policy judgments by employers, universities, property owners, and local government officials, conferring robust rights and privileges, and shifting the distribution of violence in society. This Article underscores the rhetorical and legal connection between this gun rights expansionism and the formal Second Amendment guarantee. These laws do not derive from a judicial interpretation of the scope of the Constitution, but they are expressed and advocated for in constitutional terms. The Article also highlights how broad gun rights can create unique harm to the body politic and to marginalized groups by fostering fear and mistrust and empowering sometimes-problematic private actors to proactively police their own communities. Finally, the Article shows how gun-rights expansionism influences constitutional doctrine in the context of the Second Amendment, as well as of the First, Fourth, and Fourteenth Amendments.  

 Michigan Law Review Volume 120 Issue 4 2022  

By Sherry F. Colb

Most debates over gun rights are either interpretive, about the meaning of the Second Amendment, or empirical, about whether guns enhance or undermine safety. My goal in this essay is to introduce a third factor into the debate: the “imaginary narrative.” When I say “imaginary,” I mean to suggest a narrative that does not reflect typical or common experience. I use the context of guns and domestic violence to illustrate the phenomenon. The pro-gun imaginary narrative, when it comes to domestic violence, involves a victim confronting her abuser. Because she has a firearm, she is able to protect herself from him. But that fantasy does not comport with the reality of intimate partner abuse. I propose here that we acknowledge and interrogate imaginary narratives lest our laws and policies become disconnected from the true needs of our society.

New York: Brennan Center for Justice at New York University School of Law, 2021. 10p.

By Eric Ruben

What is an “arm” under the Second Amendment? The Supreme Court has signaled that arms encompass more than just guns, including less lethal alternatives to guns. But for many Americans, the term signifies guns alone. This essay explores the role of the gun rights movement in equating arms and guns, describes how it reflects neither law nor weapons practices, and contends that it could contribute to unduly expansive gun rights. On the eve of the next big Second Amendment case at the Supreme Court, New York State Rifle and Pistol Association v. Corlett, the time is now to put guns and gun rights into a broader perspective.

New York: Brennan Center for Justice at New York University School of Law, 2021. 9p.

By Susan P. Liebell

Understanding the persistence of public gun violence and resistance to restrictions on firearms requires unmasking a pernicious armed rebellion narrative that masquerades as the “original intent” of the American framers. Promoted by the National Rifle Association (NRA), constitutional scholars of the Second Amendment, public officials, and the conservative press, the narrative insists that guns uphold freedom and rights, maintain order, and prevent tyranny. Wrapped in symbols of the American Revolution, this narrative has been used to justify the January 6 U.S. Capitol insurrection, private-citizen policing during the #BLM protests of 2020, and calls to kidnap or assassinate public officials as tyrants. This article uses John Locke (the 17th-century thinker who inspired American revolutionaries and the Constitution’s writers) to demonstrate how the armed rebellion narrative disrespects “original” understandings and distorts the meaning of the Second Amendment. First, Locke, the founders, and the original understanding of the Constitution do not justify radical individual gun rights, private-citizen policing, or subversion of the government by individual citizens. Our foundational documents insist on redress through institutions like courts and legislatures and create high bars for armed insurrection (based on the views of the majority rather than small groups of individuals). The armed rebellion narrative replaces a collective decision with the views of the individual. Second, this dangerous and distorted lens should not be used to justify false equivalences between #BLM (a mass call for social change with some violence) and January 6 (an armed insurrection with violence at its core). Locke’s ideas about individuals, the public, and the social contract — claimed by both violent insurrectionists and #BLM protesters — clarify the big lie that perpetuates our gun-saturated politics.

New York: Brennan Center for Justice at New York University School of Law, 2021. 8p.

By Bertrall Ross

On January 6, 2021, men and women, some of them armed, stormed the U.S. Capitol to try to undo a fair and legitimate presidential election. For the insurrectionists, the election results meant something more than one candidate winning and another one losing. It represented a tyrannical threat to their racialized conception of American republicanism, one that President Donald Trump promoted and sought to legitimate. For those Americans, guns reemerged as an instrument of self-defense against tyranny, just as guns have throughout U.S. history. Yet those individuals’ actions — ones that they understood as resisting tyranny — in fact threatened to destabilize American democracy through violence.

The racialized conception of American republicanism has historically served as psychological ballast for many poor and working-class Americans, including many of those involved in the insurrection. Underlying that conception is an extreme economic inequality that has left many of the insurrectionists marginalized and alienated — and that itself represents the real tyranny that threatens all poor and working-class people’s ability to participate fully in democratic processes.

This essay explores the economic inequality that lies at the foundational core of American republicanism. It then argues that violent threats to the stability and sustainability of the American republic will persist until we confront economic inequality. Otherwise, extreme economic inequality will lead to a future in which the marginalized increasingly resort to guns and violence, and the government is forced to turn to repression to ensure the republic’s survival.

New York: Brennan Center for Justice at New York University School of Law, 2021. 8p.

By Aziz Z. Huq

This essay identifies and explores the intellectual roots of the Second Amendment as they have been imagined and deployed not just by the U.S. Supreme Court but also by contemporary insurrectionary movements of the right. The Court has recognized but sidelined a political understanding of the Second Amendment in its two main encounters with the amendment’s operative clause. That understanding, however, was on ample display during the January 6, 2021, U.S. Capitol insurrection, where it was featured on banners and performed through the actual possession and threat to use arms. The idea of the armed citizen as a cornerstone of the republic can be traced back to the work of the Florentine scholar-diplomat Niccolò di Bernardo dei Machiavelli. This essay shows that across his three main book-length works, Machiavelli developed a concept of citizenship that was closely tied to the political, and potentially insurrectionary, possession and use of arms. “Good laws” and “good arms” on his account could not be separated. This vision of a politically active populace, one seemingly at odds with its elites and leaders, can be traced forward to the January 6 insurrection. But it also has a left-of-center genealogy that today yields various forms of radically democratizing proposals for institutional reform. The intellectual past, in short, is not just still alive but surprisingly fertile.

New York: Brennan Center for Justice at New York University School of Law, 2021. 10p.

By Mary B. McCord

The insurrection at the U.S. Capitol on January 6, 2021, culminated a year of increasing private militia engagement with the public — sometimes in forcible opposition to government policies or, in the case of January 6, in an attempt to “stop the steal,” and sometimes in supposed augmentation of law enforcement’s role to provide protection for persons and property against what the militias deemed “violent anarchists.” These groups, often dressed in military uniforms, armed with semi-automatic assault rifles, and bearing a full accoutrement of military gear, pose a threat to public safety, stifle the constitutional rights of others, and undermine our democracy.

Why have such private paramilitary organizations gone largely unchallenged? The answer lies in part in the widespread mythology that they are protected by the Second Amendment, a mythology promoted by those who attempt to rewrite history to support an insurrectionist view of the Second Amendment. But this view is not supported by history, the text of the Second Amendment, or its interpretation by the Supreme Court. Far from enabling private militias to be a check on a tyrannical government, as modern private militia members would have us believe, the founders intended the militia — all able-bodied men available to be called forth by the governor in defense of the state — to be subordinate to and governed by the state. Indeed, as this essay explains, private militias are not authorized under federal or state law, are not protected by the Second Amendment, and are unlawful in every state.

New York: Brennan Center for Justice at New York University School of Law. 2021. 10p.

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)