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 nonconstitutional 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.
In response to the continued expansion of “red flag” laws allowing
broader classes of people to petition a court for the removal of firearms
from individuals who exhibit dangerous conduct, this paper argues that state
laws should adopt a double-filter provision that balances individual rights
and government public safety interests. The main component of such a
provision is a special statutory category — “reporting party” — that enables
a broader social network, such as co-workers or school administrators, to
request that a law enforcement officer file a petition for an Extreme Risk
Protection Order (ERPO). A double-filter provision would not give reporting
parties a right to file a court petition directly. Instead, parties would
file a request for petition with law enforcement officers (first filter),
who must seek an ERPO from the court if they find the reporting party's
information credible. That information is then transmitted to the court
(second filter) as a sworn affidavit of the reporting party. The goal is to
facilitate a balanced policy model that (1) widens the reporting circle in
order to feed more potentially life-saving information into the system, (2)
mitigates the risk of erroneous deprivation of constitutionally protected
due process and Second Amendment rights.
Academic work is increasingly important to court rulings on the Second Amendment and firearms law more generally. This article highlights two recent trends in social science research that supplement the traditional focus on guns and physical harm. The first strand of research focuses on the changing ways that gun owners connect with firearms, with personal security, status, identity, and cultural markers being key reasons people offer for possessing firearms. The second strand focuses on broadening our understanding of the impact of guns on the public sphere beyond just physical safety. This research surfaces the ways that guns can create fear, intimidation, and social trauma; deter civic participation and the exercise of constitutional rights; and further entrench racial inequality. Expected final online publication date for the Annual Review of Law and Social Science, Volume 19 is October 2023. Please see http://www.annualreviews.org/page/journal/pubdates for revised estimates.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.