If you're interested in writing about the subject — or if you want to suggest topics to incoming staffers on your law journal --check out my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda. True to its title, it lays out a way of thinking about such questions, and then identifies some particular questions that need to be answered. There should be plenty of opportunities here for student articles on those questions, whether those articles agree with my broad framework or disagree with it. Some examples, though there are many more in the article (conveniently :
Is it constitutional to restrict gun possession, or handgun possession, or handgun carrying by 18-to-20-year-olds?
Is it constitutional to ban gun possession in public housing? (There are a few other articles on this, but only a few, and I think there's room for deeper analyses of the subject.)
What are the constitutional constraints on waiting periods for buying guns, or license fees required for such purchases? (Again some articles have touched on this, but there should be a good deal of room for further discussion.)
What are the constitutional boundaries on restrictions on gun possession by people who are under indictment but haven't been convicted of any crimes?
And there are many more; check them out, if you're looking for good topics in the area — or if you have already found a good topic, and are looking for arguments you can use or counterarguments you can respond to.
Note also that these topics are important even if the Second Amendment isn't incorporated against the states, since they also arise under the at least 40 state constitutions that recognize an individual right to keep and bear arms. So you needn't put off your article until after the Court decides whether to incorporate the right to bear arms.
By the way, some people worry that if they write about a topic that has been publicly highlighted this way, they'll be preempted by others' articles that are triggered by the same public highlighting. I wouldn't worry about this too much: That's always a risk as to any topic (including old favorites such as articles dealing with an area of the law right after a prominent Supreme Court decision), but there usually end up being only a few articles written on each such topic — and those that are written often take different approaches, and come to different results. That's especially true when an article such as the one I point to identifies many different questions; chances are that there won't be many people writing about each one.
So I hope you find these helpful, whether as authors, or as law review editors (or even law professors) recommending topics to authors.
-- Whether the majority's discussion in Heller did violence to the holding and reasoning of Miller, and if so, what are the broader implications for the RKBA and/or the methodology of Constitutional analysis in general?
-- Constitutional analysis of the validity of the Hughes Amendment, 18 U.S.C. §922(o) which prohibits NFA registration and private ownership of machineguns manufactured after May 19, 1986, while permitting it for machineguns manufactured prior to that date.
-- Constitutional analysis of the validity of the Lautenberg Amendment, 18 U.S.C. §922(g)(9), which prohibits firearms possession by persons convicted of certain misdemeanor domestic crimes of violence, particularly given the expansive interpretation of this statute by SCOTUS in U.S. v. Hayes and the ex post facto issues that appear to be raised.
-- An analysis of the legislative rationale behind excluding antitrust and similar business offense felony convictions from felon-in-possession prohibitions per 18 U.S.C. §921(20), together with an analysis of whether these factors could be used to find that the post-Heller RKBA can be applied to limit the application of 18 U.S.C. §922(g)(1) to other economic or white collar crimes.
And my personal favorite:
-- a rebuttal to Professor Volokh's unconventional analytical framework as set forth in Implementing the Right To Keep and Bear Arms for Self-Defense..., including an analysis arguing that application of a traditional standard of review analysis (e.g., strict scrutiny, etc.) is fully adequate to address post-Heller RKBA issues.
People who aren't law professors or otherwise "known" in the field probably would have better luck submitting to blind-review journals than non-blind ones. If the review is truly blind, though, the only things keeping anyone outside the field from getting papers accepted are an ability to: 1) do high-quality work; and 2) match the typical writing style and tone of the journal well enough that your paper "authenticates" as part of the field.
.
Might as well skip the analysis (except for entertainment). The Courts are going to fabricate rhetoric to justify upholding whatever restriction is being challenged. I think EV has done a good job of providing framework analysis and rhetoric that facilitates this outcome-oriented process.
I, for one, am waiting to see what The Most Principled Justice (tm) does.
That is, Thomas.
Does he not apply 2A to the states, or apply with no restrictions what so ever? I don't see how he plans to draw the lines.
.
I hoping SCOTUS denies cert to the Chicago/NRA, Nordyke, Maloney suite - however it might be bundled. I haven't gone looking for briefs on Nordyke rehearing. I will not be surprised if the 9th Circuit rehears the case and issues a new opinion that doesn't carry the incorporation baggage.
I'm rooting for the McDonald case getting cert, though the NRA case has merit too...
Heller suggests that self-defense is a fundamental human right.
From what I've read, it appears that the 18th century common law view of self-defense centered upon whether use of deadly force was actually necessary. In 19th century American that shifted to whether use was based on a reasonable (even if mistaken) belief that it was necessary.
Now *generally* that favors the defender. But sometimes it does not. Attacker turns out, in fact, to have been a deadly person -- but defender did not know this, so it is irrelevant to his beliefs, and evidence cannot be admitted.
What's the impact of Heller on this? If self-defense is a right, can be person be convicted for conduct that was in fact necessary to such defense? Isn't a it a bit anomalous to have a defense based solely upon belief, and to which reality is excluded?
Just had a related case in AZ, the Fish case. Defender is hiking, encounters a fellow with dogs, waves to him. Dogs aggressively rush defender, who fires a warning shot, at which they retreat. Other fellow rushes at him, shouting threats, crazed look, windmilling his arms. He shoots other fellow at close range. Court refuses to admit testimony from other persons that they had encountered other fellow, his dogs attacked, upon their defending he rushed at them with crazed look, shouting threats, and windmilling arms.
Ct of Apps holds that, following AZ's adoption of fed. rules of evidence, the testimony would be inadmissible (previously there was a case law exception allowing the court some discretion) but that prosecution opened the door by arguing that defender's version of other guy's rushing at him was ridiculous and improbable.
And thank you for your book; I am in the process of polishing an article I hope to shop around for publication soon, and your book was of assistance.
I have just read the first 30 pages of your UCLA paper and the effect has been exhilarating. I understand more about Constitutional law and Constitutional interpretation than I ever have previously. I find your analytical framework of scope, burden, danger reduction, and government as proprietor to be extremely helpful.
I hope such analytics go far, are extended by others, and gradually evolve within the common law to a more demo-comprehensible set of legal outcomes.
Thank you for sharing your erudite legal analysis with the interested non-lawyers who are frequent readers of your blog!
"- An analysis of the legislative rationale behind excluding antitrust and similar business offense felony convictions from felon-in-possession prohibitions per 18 U.S.C. §921(20), together with an analysis of whether these factors could be used to find that the post-Heller RKBA can be applied to limit the application of 18 U.S.C. §922(g)(1) to other economic or white collar crimes. "
Once looked it up. The exemption dates from an early (1965? 66?) Tom Dodd draft of what became the Gun Control Act of 1968. Understand, Dodd was one of the more corrupt guys ever to sit in the Senate, and in proposing the early bills was reacting to contributions and suggestions from US gun mfrs, who wanted to bar imports of foreign bolt action rifles (which could be had retail for $25-40. converted into good deer rifles for about $20 more, and were thus killing their business).
If I remember correctly, the Olin Co., which held federal firearm licenses for production of ammo (or else it owned one of the major cartridge companies, which had such a license) plead out to felony price fixing (not in relation to ammo, but some other aspect of its business. I seem to recall it was price fixing with regard to exports of some type).
So it got Dodd to insert an exemption from the felon bar that covered antitrust, and a little more to make it less obvious.
There *may* have been some exemption of that type under federal law prior to 1968 (perhaps an amendment to the Federal Firearms Act of 1938?) but I don't recall. I have a vague memory of something like that that lacked an explicit reference to antitrust violations.
A topic for the historically inclined is an investigation of the antiquity of the Collective Rights argument itself, as opposed to its justifications. Although Heller is often presented as originating a new individual rights interpretation to the formerly “collective militia right” Second Amendment, I don’t ever remember hearing anything about collective rights before the late 1970s. Unfortunately it’s difficult to Google papers and articles from that era, and see one way or another.
Another historical approach could compare policies already found to result in de facto discrimination, for instance poll taxes, voter literacy tests, separate-but-equal education, with modern gun control applications like the New York City discretionary gun permit system.
Finally, given the First Amendment Freedom of Religion and similar state constitutional guarantees, is it constitutional to prohibit concealed carry specifically in places of worship?
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.