By Saul Cornell

A proper understanding of the founding era concept of police is essential to the future of Second Amendment jurisprudence. District of Columbia v. Heller never addresses the police power and its centrality to early American rights theory or antebellum jurisprudence. The omission is striking because Heller does devote considerable attention to antebellum southern cases addressing the issue of public carry, and this body of law was strongly influenced by police power jurisprudence. A genuinely historical treatment of founding era rights theory — including the right to keep and bear arms — provides scant support for Heller’s dismissal of the right of the people to regulate their internal police in the case of firearms. Nor does the antebellum southern case law that Heller highlights as the key to unlocking the meaning of the Second Amendment support such a claim. Reconstruction did not change these basic facts. If one applies Heller’s professed originalist methodology neutrally, and Justice Scalia is correct that rights are entrenched with the scope that they had when constitutionalized, then the right of the people to regulate their own police, including firearms, must be treated with the same originalist reverence. Judges, including originalist judges, must recognize the awesome power of the people: including the right to regulate arms.

New York: Brennan Center for Justice at New York University School of Law, 2021. 17p.

By Matthew J. Lacombe

The tumultuous year of 2020 may mark an important turning point in the political development of the National Rifle Association (NRA) and, as a result, the broader gun rights movement. This essay explores how the year’s events — and the role of guns and gun rights supporters in them — were in numerous ways a culmination of the NRA’s approach to politics over the course of several prior decades. This approach involves linking guns to a broader, right-wing populist worldview; mobilizing political action among gun rights supporters by portraying that worldview as deeply threatened by government and media elites; and building alliances with like-minded politicians, most notably Donald Trump. The essay then explores how the aftermath of the events of 2020 leaves the NRA in a difficult position. With Trump (the NRA’s close ally) out of office, some within the GOP looking to move on from his approach to politics following the failed January 6 insurrection, and Democrats more supportive of gun control than at any other point in recent history, the NRA may find itself somewhat politically alienated. Moreover, given its current organizational challenges and its position on the right wing of the GOP, the NRA may also struggle to recruit the many Americans who bought guns for the first time in 2020 — a group that could potentially diversify the gun owning community and renegotiate the sociopolitical meaning of guns in important ways. Only time will tell the NRA’s future, but what is clear now is that the tumultuous events of 2020 can be traced to the organization’s past and will surely impact both its future and the future of the gun debate.

New York: Brennan Center for Justice at New York University School of Law, 2011. 8p.

By Darrell A. H. Miller

To an external observer, the moral and historical foundations of the insurrectionary Second Amendment must look bizarre. Instead of building an insurrectionist theory around the one group — enslaved Africans — who, by the framers’ own measure, had the most right to resist tyranny, we have a Second Amendment theory of righteous revolution built on the grievances of slave owners. But the peculiarity does not stop there. It must seem equally odd to outsiders that insurrectionist theory never adequately accounts for the fact that this one group, African Americans — with centuries of moral justification behind them — decided in the middle of the 20th century to reject violent political dynamism in favor of nonviolence. In short, what would Second Amendment insurrectionism look like if it started with the enslaved African and ended with the march across Edmund Pettus Bridge? This essay attempts to reckon with these twin paradoxes and reorient our thinking about the credibility of the insurrectionary Second Amendment.

New York: Brennan Center for Justice at New York University School of Law, 2021. 11p.

By John J. Donohue

The January 6 attack on the U.S. Capitol has important lessons for much of the widespread, current Second Amendment litigation designed to eradicate beneficial gun safety regulation across the country. First, the value of Washington, DC, laws in constraining the gun carrying of the riotous crowd was evident and likely saved many lives. Second, flirtations with the idea that armed citizens should be ready to fight the federal government were shown to be absurd: there is no circumstance in which private citizens in modern America could promote democracy by using assault weapons to kill government employees to show their disapproval of what they perceive to be “tyrannical” government. Third, the idea that gun owners can be expected to oppose rather than support a tyrant was dealt a fatal blow by the violence at the U.S. Capitol. The time has come to earnestly acknowledge and embrace the wise restraints on firearms that make the American public free and to reject the specious mask of zeal for unlimited gun rights that has become a mainstay of too many American politicians.

New York: Brennan Center for Justice at New York University School of Law, 2021. 11p.

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 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 Joseph Blocher, Samuel W. Buell, Jacob D. Charles, and Darrell A.H. Miller  

The American gun debate is increasingly populated with scenes of people pointing and otherwise displaying guns. What is the legal regime governing gun displays, and how well can it address the distinct social and legal problems they pose? In this Essay, we argue that the current structure of criminal law does not supply clear rules of conduct sufficient to avoid the negative effects of gun displays, and that the rhetorical and expressive effects of Second Amendment debates threaten to make the situation worse. We also suggest how the legal rules might be improved, and how battles over norms—as much as criminal prohibitions and defenses—will continue to shape both social practice and law when it comes to displays of firearms in public and towards other persons.

99 Texas Law Review 1173-1200 (2021)