In Epic Systems Corp. v. Lewis, the Federal Arbitration Act offered the court a second-best workaround to Erie's formless wasteland.
Teaching the Right to Arms
Our new book, Firearms Law and the Second Amendment: Regulation, Rights and Policy, is the first law-school textbook on the subject.
It appears at an opportune time. It has been four years after the U.S. Supreme Court declared in District of Columbia v. Heller that the Second Amendment protected an individual right to keep and bear firearms for the purpose of self-defense, and two years since the Court held in McDonald v. City of Chicago that the Second Amendment right protects against infringement by state and local governments, not only the federal government. State and lower federal courts are now grappling with the implications of the newly affirmed right to arms in cases involving the right to carry a handgun for self-defense, the validity of bans on certain types of rifles and magazines, and other issues.
Our introductory chapter gives students the background needed to engage the law in this area by first explaining basic facts about firearms terminology and current gun laws in the United States. The book then proceeds in a broadly chronological order. It begins with classical Western and Asian sources on the law and morality of arms-bearing and self-defense, and continues through the English background of the American right to arms. We address in detail a range of sources from the revolutionary and ratification eras of U.S. history. The rich nineteenth-century legal discourse on the right to arms, before and after the Civil War, is covered in detail.
When we reach the twentieth century, we present the main outlines of federal firearms regulation today, including coverage of the National Firearms Act of 1934 and the Gun Control Act of 1968, and the surrounding social and political history of the modern gun-control debate. Naturally, the two landmark Supreme Court decisions in Heller and McDonald are covered at length.
We then turn to current litigation in the lower courts, and survey many of the unresolved Second Amendment questions that courts face in the wake of Heller and McDonald. Finally, in four exclusively online chapters we treat the social science and criminology of firearms use and misuse and evaluate international law and comparative law perspectives.
There are two reasons for the chronological/historical structure. First, Second Amendment jurisprudence stands today roughly where that of the First Amendment stood in the 1940s and 1950s. Supreme Court decisions of that era were just beginning to give free-speech and religion rights meaningful judicial protection. To date, there is limited guidance from lower courts on the full parameters of the right recognized in Heller and McDonald. So the search for answers sends one looking for first principles and historical examples of courts and commentators interpreting the right to keep and bear arms. Presenting this story from the beginning seemed the most natural approach.
Further, the historical structure of the book parallels the analyses in Heller and McDonald. Heller explicitly used originalist methods to interpret the Second Amendment. The majority opinions in both cases, and most of the concurrences and dissents, were saturated with analyses of American history and tradition surrounding the right to arms. Some lower courts have taken note of this. For example, in Ezell v. City of Chicago (2011), the U.S. Court of Appeals for the Seventh Circuit held that Chicago’s post-McDonald ban on gun ranges offended the Second Amendment. It relied heavily on historical analysis to conclude that the scope of the Second Amendment right includes practicing with one’s arms at a shooting range.
There was one limitation of the chronological approach to the material that we developed an innovative way of addressing. In writing the book, we repeatedly encountered situations where the notes and questions for an item were highly relevant to something in a previous or subsequent chapter. Our solution was the “Connection Question,” a research, reference, and discussion tool that alerts readers that the particular question, note or issue is also might influence their thinking about issues raised primarily in another chapter. These questions are explicitly marked with a bold faced “CQ.” In this way, the text does what a good teacher always does—i.e. highlights the places where concepts connect and overlap, allowing readers to pull ideas and arguments from very different times and places into the same analytical basket.
Discussion of gun laws and the right to arms is often siloed. Legal scholars risk working in separation from historians or social scientists; originalist interpretations can disconnect from modern policy debates; anti-gun voices dialogue with pro-gun voices across a canyon of law review articles and sound bites. The book tries to bridge these gaps by adopting a philosophy of neutrality—we include them all.
Some of our toughest editorial choices dealt with legal commentary and the social science literature. That material is voluminous and its claims more contentious. Deciding what to elevate into the canon was harder and required keen sensitivity to evenhandedness.
For example, we decided to include a long excerpt from federal appellate judge J. Harvie Wilkinson III’s criticism of Heller published in the Virginia Law Review. Judge Wilkinson’s article asserts that Heller is an example of judicial activism akin to Roe v. Wade. It has been widely read, perhaps in part due to its dramatic thesis and the author’s station. Yet the article is, in our view, clearly flawed in both premise and argumentation. One of us, David Kopel, has joined with Professor Nelson Lund to rebut Wilkinson’s claims in the Journal of Law and Politics. But the prominence of the piece nonetheless earned it a place in the book.
The online chapters on social science and criminology also posed selection problems. Studies saying something interesting about the effects of firearms regulation and ownership are legion. Condensing this sprawling literature into a source that summarizes it effectively was a challenge. We attempted both to distill and to reflect the full boundaries of the various debates. For example, on the issue of concealed-carry laws, we include a recent, comprehensive survey of the literature by the National Research Council, in which the majority of the panel professes agnosticism about whether or not concealed carry generates net benefits, while the dissent of the late James Q. Wilson views the data as showing a slight beneficial impact from concealed carry laws. Throughout the book in similar ways we sought to present a diversity of views on contested questions either through excerpts or through citations to conflicting scholarship.
Another good example of this is the entire chapter (Chapter 10) we devote to presenting different perspectives on the gun issue. We do this by providing excerpts from the amicus briefs in the Heller case. For example, it is widely known that gun crime is a particular burden on the Black community. Gun bans like the law overturned in Heller are a reaction to this problem. On the other hand it is clear that people living in dangerous neighborhoods (e.g., The Heller and McDonald plaintiffs, D.C.’s Shelly Parker and Chicago’s Otis McDonald) also want legal guns for self-defense. These competing perspectives are presented through excerpts from the conflicting amicus briefs of the National Association for the Advancement of Colored People and the Congress of Racial Equality. We use competing amicus briefs to show that the perspectives of age, gender, and disability produce similar disagreements. These treatments show that a concern about violent crime can fairly elicit calls for both gun control and gun availability.
The wide range of sources should make the book useful for a number of different audiences. Among academics, some professors may want to teach a legal history seminar on the origins of the right to arms. Others might want to focus on the Heller and McDonald cases, as a study in constitutional civil rights litigation. Some teachers may plan a class on federal firearms law, looking at the current gun control statutes and regulations and how they interact with the developing law of the Second Amendment. But we also designed the book with the hope and expectation that many nonacademics may want to own it as a general resource on gun rights and gun policy. It will be available in both a modular format, allowing one to purchase from the publisher individual portions of the work that suit one’s interests and needs, and for the Kindle e-reader in a fully searchable format.
An innovation that we have high hopes for is publication of student research papers on our website, firearmsregulation.org. We anticipate that most instructors using the book will require a substantial research paper. We solicit quality student papers and will publish them on the website as a resource along with citations to current cases and commentary. We hope to build the site in to a premium source of information and commentary on Firearms Law and the Second Amendment.
Nicholas Johnson and Michael O’Shea for the Editors