2nd Amendment Flashcards
The Second Amendment is interpreted using an
originalist/historical framework.
which is different from how courts interpret the First Amendment.
Regulations and gun licensing requirements are evaluated for
consistency with traditional gun regulations.
Arms can be restricted in
“sensitive” places like
schools and courthouses.
Who can be lawfully stripped of Second Amendment Rights?
Felons, the mentally ill, and others who present heightened risks of danger
Characteristics of Originalist
Analysis
▪ Views constitution primarily as a legal
document and contract.
▪ Views constitutional texts as having a fixed
meaning at the time of ratification that
remains binding on us today.
▪ Common originalist tools: founding-era
dictionaries and state constitutions,
Federalist Papers, Madison’s notes on the
Philadelphia convention, and state
ratification debates.
▪ Is also a philosophy of constitutional
change: judges shouldn’t circumvent Article
V.
The Second Amendment is interpreted using an
originalist and historical lens. 18th and 19th-century history is relevant.
You have an individual right to own a
firearm “in common use,” and that is not “unreasonably dangerous” as long as you are not a felon/mentally ill.
2nd Amendments viewpoints
- collective v. individual rights
collective rights view - the amendment secures the states right to continue to organize and maintain an armed militia of citizens
individual rights view - the amendment ensures an individuals right to possess firearms for any number of reasons
Facial Challenge
definition and example
▪ Argument is that the law is
always and under all
circumstances unconstitutional.
▪ Example: A law banning minors
from using guns on school
property is always
unconstitutional.
As-Applied Challenge
▪ Argument is that applying a law
under specific circumstances is
unconstitutional even if it would
be constitutional under other
circumstances.
▪ Example: Punishing a child for
using a police officer’s gun on
school grounds to stop a school
shooting.
Rahimi
▪ Rahimi was under a restraining order after behaving violently towards his ex-partner.
▪ He had an opportunity to contest his ex-partner’s testimony at the
restraining order hearing.
▪ Rahimi was linked to several
incidents of using his gun violently.
▪ He was indicted and pled guilty to
violating 18 U.S.C. §922(g)
Holding and reasoning
▪ A modern regulation can be relatively loosely related to historical gun regulations to be constitutional.
▪ Two historical regulations might be
enough to constitute a relevant “history and tradition.”
▪ The majority rejected the idea that the Second Amendment only protects “responsible” citizens.
Bianchi v. Brown
▪ Maryland banned several weapons
including (1) 50 caliber sniper rifles, (2) spas shotguns, and (3) AR-15s.
▪ The plaintiffs mounted a facial challenge to this law but focused most of their challenge on the AR-15.
Resolving Second Amendment
challenges is a two-step process where you:
(1) decide whether the Second Amendment covers particular people and conduct and
(2) whether a challenged ban/regulation is consistent with history and tradition.
2nd Amendment 5 rules
▪ The Second Amendment is interpreted with an originalist/history and tradition framework.
▪ Applying the Second Amendment is a two-step process. First, we look at whether the Second Amendment’s text covers the issue, and second, we look at whether a government ban/regulation of
conduct falling within the Second Amendment’s text is consistent with history and tradition.
▪ “May” issue licensing systems that give officials discretion over whom to allow to own a gun are constitutionally suspect.
▪ Felons, the mentally ill, and people who pose a serious risk of domestic violence are unprotected by the Second Amendment.
▪ You have the right to a typical 9mm pistol discussed in Heller.
