Scholarship

This article argues that three years after the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, a small group of outlier jurisdictions—New York, Massachusetts, New Jersey, California, Maryland, Hawaii, and Washington D.C.—have responded not with compliance but with “administrative nullification” of the Second Amendment right to carry firearms in public. The piece catalogues a series of bureaucratic choke points used to obstruct the licensing process, including manufactured staffing shortages and restricted office hours that produce wait times of one to two years in cities like Los Angeles, New York, and Boston; burdensome documentation requirements such as character references and sweeping records-disclosure waivers; lengthy and expensive training mandates of sixteen to eighteen hours that can cost hundreds of dollars; unpublished or “secret” disqualifying criteria that have been used to deny permits to applicants who merely witnessed crimes or were themselves crime victims; and unduly short renewal periods that force applicants to repeat the entire onerous process every two to three years. The article points to recent litigation, including a Department of Justice suit filed against the Los Angeles County Sheriff’s Department in September 2025, as evidence that these delays are deliberate rather than incidental.

To demonstrate that the obstruction is a matter of political will rather than administrative capacity, the article compares licensing timelines with voter-registration timelines in the same outlier jurisdictions. While the median statutory maximum for processing a concealed carry application in these states is 105 days—and actual practice often runs much longer—the median time these same jurisdictions allow themselves to process voter registrations is just 15 days, and even contested provisional ballots are typically resolved within 15 days. The conclusion drawn is that these governments can move quickly when they choose to, but lack any incentive to do so for firearms permits because litigation is slow and expensive. As a remedy, the article proposes that licensing officers be required to issue a temporary carry permit immediately upon application, which would become permanent either upon verification of eligibility or simply through the passage of time, modeled loosely on the approach taken in the twenty-nine permitless-carry states. By shifting the burden of delay from the applicant to the government, the proposal aims to realign incentives so that obstruction becomes costlier than compliance, fulfilling Bruen’s express warning that lengthy wait times and exorbitant fees can themselves render a shall-issue regime unconstitutional.

This article addresses a methodological gap left open by the Supreme Court’s Second Amendment trilogy of Heller, Bruen, and Rahimi: how lower courts should determine the appropriate level of generality when deriving historical principles from Founding-era analogue laws. After reviewing the text-first, history-second framework and noting Justice Barrett’s observation in Rahimi that courts have struggled with this “level of generality problem,” the article proposes that derived principles can be tested against five “disqualifiers” or “third rails” that signal when a court’s analysis has gone awry. These disqualifiers hold that a derived historical principle is invalid if it (1) violates existing Supreme Court precedent, such as the protection of arms in common use; (2) rests on the criminal misuse of firearms rather than the lawful conduct of law-abiding citizens; (3) contradicts the Second Amendment’s core purposes of self-defense and resistance to tyranny; (4) would restrict firearm-related activities that were common at the Founding; or (5) effectively denies Second Amendment rights to most Americans.

The article then applies this framework to several contested areas of current litigation, arguing that lower courts have repeatedly violated these disqualifiers. Decisions upholding bans on semi-automatic rifles and standard-capacity magazines by invoking principles such as “excessively dangerous” weapons or “unprecedented lethality” are said to conflict with Heller’s common-use protection and to improperly focus on criminal misuse. Post-Rahimi rulings disarming those who show “disrespect for legal norms” are characterized as recreating the vague “irresponsibility” standard the Supreme Court rejected. Age-based restrictions on adults aged 18 to 20 are challenged on the ground that Founding-era militia laws required these very individuals to acquire and bear arms, while expansive “sensitive places” laws are critiqued for protecting “vulnerable populations” in ways that would eviscerate the right to public carry. The article concludes by integrating the disqualifiers into a six-step Bruen/Heller analytical sequence, presenting them as a confirming check to ensure derived principles are neither too broad nor untethered from the Amendment’s protective purposes.

This article argues that the Supreme Court’s decision in United States v. Rahimi should be understood as a routine application and reinforcement of the framework established in New York State Rifle & Pistol Association v. Bruen, rather than as a retreat from or weakening of that precedent. The case involved Zackey Rahimi, a violent individual who challenged 18 U.S.C. § 922(g)(8), the federal statute prohibiting persons subject to domestic violence restraining orders from possessing firearms. After the Fifth Circuit struck down the statute, many commentators predicted that the Supreme Court would use the case to walk back Bruen’s text-and-history methodology. Instead, the article contends, the 8-1 decision upholding the statute faithfully followed Bruen’s approach: it confirmed that Rahimi’s conduct fell within the plain text of the Second Amendment, placed the burden on the government to identify a historical tradition of firearm regulation, and required a close analogical fit between modern restrictions and Founding-era surety laws and “going armed” affray laws. Justice Thomas’s lone dissent, the article notes, also accepted the Bruen framework and disagreed only on the narrow question of whether the cited historical analogues were sufficiently similar in operation to the modern statute.

The article then identifies what it considers the key takeaways from the decision and pushes back against attempts by gun-control advocates and government litigants to characterize Rahimi as a “mad dash” away from Bruen. It emphasizes that all nine justices rejected the government’s sweeping argument that legislatures may disarm anyone deemed not “responsible,” that the Court explicitly required tight inferential fit between historical laws and the traditions they purportedly establish, and that briefing and legal research—not expert historian testimony—remain the proper tools for analogical reasoning. Drawing on Justice Kavanaugh’s concurrence, the article maintains that racist or otherwise discriminatory historical laws cannot serve as analogues for modern firearm restrictions. It argues that Rahimi’s narrow holding—that individuals judicially found to pose a credible threat of physical violence may be temporarily disarmed—has limited applicability to most pending Second Amendment litigation, including challenges to default carriage bans, expansive “sensitive places” designations, lifetime bans for nonviolent offenders, and discretionary licensing schemes premised on subjective “moral character” assessments. Citing the Eighth Circuit’s decision in Worth v. Jacobson striking down Minnesota’s restrictions on 18-to-20-year-olds, the article concludes that Rahimi is significant precisely because it is pedestrian: a sign that the Second Amendment has finally moved into the routine business of doctrinal application and is being treated as a co-equal constitutional right rather than what Justice Thomas once called a “constitutional orphan.”

This article argues that lower courts have repeatedly misapplied Supreme Court precedent in Second Amendment cases decided after New York State Rifle & Pistol Association v. Bruen, despite the clear roadmap that decision provided alongside District of Columbia v. Heller. The central framework presented is that lower courts must first ask whether the Supreme Court has already articulated a controlling constitutional test for the type of regulation at issue—if so, that test governs directly, and if not, courts must apply Bruen’s text-first, history-second methodology while placing the burden on the government to identify well-established and representative historical analogues. The article emphasizes that the proper benchmark for historical analogues is the Founding era around 1791, that racist or unconstitutional laws cannot serve as legitimate analogues, that Reconstruction-era and territorial laws deserve little weight, that mere governmental inaction cannot establish a tradition of regulation, and that any proffered analogue must match the challenged modern law in both “how” and “why” it burdens the right to armed self-defense. The article also rejects reliance on so-called historical experts, arguing that analogical reasoning from primary legal sources is the ordinary work of judges and lawyers.

The article then catalogues common errors lower courts have made across several categories of Second Amendment litigation. In arms-ban cases involving “assault weapons,” large-capacity magazines, and handgun rosters, the article contends that courts have ignored Heller’s binding “in common use” test by improperly shifting the burden to plaintiffs, narrowing the test to require proof of common use specifically “for self-defense,” treating the “dangerous and unusual” standard as disjunctive rather than conjunctive, smuggling interest-balancing back in through the Bruen language about “dramatic technological changes” and “unprecedented societal concerns,” or substituting a “military versus civilian” distinction as the Seventh Circuit did in Bevis v. City of Naperville. Regarding discretionary licensing regimes, the article criticizes states like New York and New Jersey for replacing struck-down “good cause” standards with equally subjective “good moral character” requirements, in-person interview mandates, and social media disclosures, citing the historical example of Alabama denying Martin Luther King Jr. a pistol permit to illustrate the dangers of such discretion. The article also addresses restrictions on 18-to-20-year-olds, arguing they fall within “the people” protected by the Second Amendment, and proposes that “sensitive places” should be limited to locations where the government actually provides comprehensive armed security—rejecting alternative tests based on “core government functions,” “vulnerable populations,” or “collateral damage” as too manipulable and historically unfounded, and citing numerous Founding-era statutes funding sheriffs, sergeants-at-arms, and constables at legislatures, courthouses, and polling places.

This article argues that lower courts have systematically misapplied Supreme Court precedent in Second Amendment cases involving bans on so-called “assault weapons” and “large capacity magazines.” The central thesis is that District of Columbia v. Heller established a clear constitutional test for arms-ban cases—namely, that bearable arms “in common use” today are protected by the Second Amendment and cannot be banned—and that this test remains binding after New York State Rifle & Pistol Association v. Bruen. The article contends that Second Amendment cases fall into two distinct categories: arms-ban cases (governed by Heller’s “in common use” test) and non-ban regulatory cases (governed by Bruen’s historical analogue methodology). According to the analysis, courts and gun-control advocates have improperly seized on a single sentence in Bruen referencing “unprecedented societal concerns” and “dramatic technological changes” to circumvent Heller, treating that language as a freestanding exception that permits banning weapons deemed “exceptionally dangerous,” even when those weapons are indisputably in common use.

The article further maintains that arguments about technological lethality and mass-shooting violence are not new—identical “dangerousness” arguments were raised about handguns in Heller itself and were rejected by the Supreme Court in favor of the common-use test, which inherently accounts for contemporary firearms technology and societal conditions by focusing on what arms Americans actually possess today. Surveying recent decisions from federal district courts in Delaware, Washington, and Illinois (including Delaware State Sportsmen’s Association, Hartford v. Ferguson, Bevis v. City of Naperville, and Herrera v. Raoul), the article criticizes judges for conducting their own historical analyses, inventing a “particularly dangerous” or “exceptionally dangerous” standard, and ignoring that Heller’s reference to “dangerous and unusual” weapons was conjunctive—requiring both elements. The article concludes that these decisions effectively resurrect the interest-balancing approach that Heller rejected and Bruen explicitly abrogated, while praising the handful of judges, such as those in Barnett v. Raoul and Boland v. Bonta, who correctly applied the common-use test to enjoin such bans.

This article argues that corpus linguistics—a methodology that uses computerized searches of large digitized text databases to count word usage frequencies—is a flawed and ultimately unpersuasive tool for interpreting the Second Amendment. The article traces the history of this approach, observing that the Supreme Court in District of Columbia v. Heller squarely rejected an amicus brief by professors of linguistics who argued that because the phrase “bear arms” appeared most frequently in military contexts in Founding-era texts, the Second Amendment protected only a militia-related right. The article contends that the more recent “corpus linguistics 2.0” briefs filed in New York State Rifle & Pistol Association v. City of New York—which urged the Court to reconsider Heller—are functionally identical to the approach already rejected, differing only in the use of larger computerized databases such as COFEA and COEME. The article catalogues numerous defects in the methodology, including that the corpora overrepresent the writings of political and legal elites while excluding the “invisible common man,” omit many key texts critical to Second Amendment scholarship, are biased toward newsworthy events, depend on subjective categorization decisions that undermine reproducibility, and rest on what it calls an unsound “frequency hypothesis”—the assumption that the most numerically common usage of a phrase defines its meaning to the exclusion of other recognized usages.

The article further maintains that corpus linguistics suffers from serious procedural and practical problems in litigation, including that it is typically introduced for the first time on appeal through amicus briefs or sua sponte by judges, leaving opposing parties no meaningful opportunity to respond and undermining the adversarial system. It contends that judges and lawyers lack the technical training to conduct such research and that, if the methodology is truly scientific as its proponents claim, it should be subject to expert testimony rules and Daubert gatekeeping. Most fundamentally, the article argues that word counts cannot override the substantial historical record demonstrating that the Founders understood the right to bear arms as a pre-existing natural right encompassing both militia service and private self-defense. It marshals evidence that prominent Founders—including Madison, Jefferson, Wilson, Adams, and Sherman—used the phrase “bear arms” in clearly individual, non-military contexts, that there were virtually no restrictions on the peaceable carrying of arms during the Founding period, and that the Founders, steeped in Enlightenment thinking about natural rights, viewed self-defense as a primary God-given right that could not be abrogated by civil society. The article concludes that corpus linguistics has not been broadly embraced by the courts, warns of the growing risk that contemporary corpora may be ideologically manipulated, and urges that Second Amendment interpretation be guided by text, history, and tradition rather than by reducing constitutional meaning to a mathematical exercise.

This article argues that following the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, the proper historical period for determining the meaning of the Second Amendment is 1791, when the Bill of Rights was ratified, and not 1868, when the Fourteenth Amendment was adopted. The article responds to gun control advocates who have seized on a passage in Bruen acknowledging an “ongoing scholarly debate” about which period controls, contending that these advocates favor 1868 because more restrictive firearms laws existed then—including Southern Black Codes and Reconstruction-era carry restrictions—offering more potential historical “analogues” to justify modern gun regulations. The article maintains that the relevant time period is not actually an open question, asserting that every Supreme Court case examining the historical meaning of provisions in the Bill of Rights has looked principally to the Founding era, and that no Supreme Court case has ever treated 1868 as the controlling period for determining the scope of an enumerated individual right.

The article supports this position with several lines of reasoning, including that incorporated rights have only one meaning whether applied against federal or state governments, that constitutional meanings are fixed at the time of adoption, and that the Court’s substantive Second Amendment cases—Heller, Caetano, and Bruen—all looked to the Founding period, treating later 19th-century evidence merely as confirmation rather than as a source of independent meaning. It further contends that even if 1868 were examined, the historical record from debates over the Freedmen’s Bureau Act and the Civil Rights Act of 1866 demonstrates that the ratifiers of the Fourteenth Amendment understood the right to keep and bear arms in the same way as the Founders, viewing their work as extending a pre-existing right to formerly enslaved people rather than redefining it. The article also critiques the scholarly positions of Professors Kurt Lash and Akhil Amar cited in Bruen, arguing that Lash’s “reverse incorporation” theory conflicts with settled precedent and that Amar’s concerns have largely been resolved by Heller’s recognition of an individual right to self-defense. The article concludes that lower courts should confine their historical inquiry to the Founding era when assessing the constitutionality of modern firearms regulations.

This article argues that in the post-Bruen world, 1791—when the Bill of Rights was ratified—is the controlling historical period for determining the meaning and scope of the Second Amendment, and that the year 1868, when the Fourteenth Amendment was adopted, must be rejected as the primary point of reference. It addresses arguments raised by gun control advocates who have seized on a passage in Bruen acknowledging an “ongoing scholarly debate” about which period controls, contending these advocates favor 1868 because more restrictive firearms laws existed then—including Reconstruction-era statutes and Black Codes—offering more potential historical analogues to justify modern firearms regulations. The article maintains that this is not actually an open question, asserting that the Supreme Court has held that incorporated rights have a single meaning whether applied against state or federal governments, that the meaning of constitutional provisions is fixed at the time of adoption, and that every Supreme Court case examining the historical meaning of incorporated Bill of Rights provisions has looked to the Founding era as the primary or exclusive period—including the three cases cited within the relevant Bruen passage itself (Crawford, Virginia v. Moore, and Nevada Commission on Ethics v. Carrigan). The article surveys decisions across the First, Fourth, Fifth, Sixth, and Eighth Amendments to demonstrate that no Supreme Court case has ever treated 1868 as the controlling period, and that all three of the Court’s substantive Second Amendment decisions—Heller, Caetano, and Bruen—looked to the Founding period, treating later 19th-century evidence as mere confirmation rather than as a source of independent meaning.

The article further argues that even if 1868 were examined, the historical record demonstrates that the ratifiers of the Fourteenth Amendment understood the right to keep and bear arms in the same way as the Founders did, viewing their work through debates over the Freedmen’s Bureau Act and the Civil Rights Act of 1866 as extending a pre-existing right to formerly enslaved people rather than redefining it. It also contends that focusing on 1868 is impractical because it is unclear that the Fourteenth Amendment’s ratifiers believed they were incorporating all of the first eight amendments against the states, given that the amendment does not mention the Bill of Rights, that members of Congress disagreed about what “privileges or immunities of citizens” meant, and that the Supreme Court itself rejected wholesale incorporation in the Slaughter-House Cases and Cruikshank shortly after ratification. The article also dismantles the Court of Appeals decisions cited by gun control litigants as supporting 1868, demonstrating that one was abrogated by Bruen, another rested on a misreading of McDonald that the Seventh Circuit later corrected, and the rest simply repeated that mistaken reasoning. It concludes by critiquing the scholarly positions of Professors Kurt Lash and Akhil Amar referenced in Bruen, arguing that Lash’s “reverse incorporation” theory would require overturning the Supreme Court’s entire Bill of Rights jurisprudence and that Amar’s concerns about the Second Amendment have largely been rendered obsolete by Heller’s recognition of an individual right to self-defense. The article concludes that lower courts should confine their historical inquiry to the Founding era when assessing the constitutionality of modern firearms regulations.

This article argues that the Supreme Court’s June 2022 decision in New York State Rifle & Pistol Association v. Bruen represents a major victory for the individual right to keep and bear arms. Building on Heller and McDonald, Bruen held that the Second Amendment protects the right to carry firearms outside the home for self-defense, and it invalidated the discretionary “may-issue” licensing regimes used by six outlier states, which required applicants to show a “special need” for armed self-defense. The article emphasizes that Bruen also rejected the “two-step” means-end balancing test that lower courts had widely adopted, replacing it with a text-and-history approach that places the burden on the government to show that modern firearms regulations have close historical analogues from the Founding era. According to the article, this interpretive shift effectively requires reconsideration of hundreds of post-Heller lower court decisions that upheld gun control measures under interest-balancing scrutiny, including bans on so-called “assault weapons” and “large capacity” magazines, for which the article contends there is no historical precedent.

The article also sharply criticizes states like New York, New Jersey, and California for attempting to circumvent Bruen through new legislation. It details how New York dramatically expanded the definition of “sensitive places” where firearms are prohibited—now including parks, places of worship, public transit, Times Square, and any private business that has not posted signage explicitly permitting carry—effectively reducing lawful carry to little more than the public street. The article further contends that New York replaced its invalidated “proper cause” standard with an equally discretionary “good moral character” requirement that demands in-person interviews, personal references, and three years of social media history, thereby preserving licensing officials’ open-ended discretion in defiance of the Court’s ruling and Justice Kavanaugh’s concurrence. The article concludes that these evasive measures must be struck down if Bruen’s text-and-history test is faithfully applied, and it celebrates the decision as a triumph not only for Second Amendment rights but for originalism, constitutionalism, and the rule of law.

This article uses a question Justice Anthony Kennedy posed during oral argument in District of Columbia v. Heller—about whether the Second Amendment had anything to do with settlers defending themselves against “wolves and bears and grizzlies and things like that”—as a springboard for exploring a dimension of the right to keep and bear arms that the article contends has been underappreciated: confrontations with animals. While much Second Amendment scholarship has focused on self-defense against criminal attack, resistance to tyranny, or conflicts with Indian tribes, the article argues that for colonists and early Americans, firearms were ubiquitous everyday tools used to defend against wild animal attacks on humans, to protect crops and livestock from predators, to obtain food through subsistence hunting, and to generate cash income through market hunting. Drawing on early census data showing how overwhelmingly rural the new nation was, the article reconstructs a world in which wolves, bears, panthers, rattlesnakes, and feral hogs posed real and frequent dangers, and in which colonies routinely paid bounties to encourage settlers to kill predators. Through detailed accounts of attacks—ranging from a 1784 fatal bear attack on a child in New Hampshire, to grizzly encounters during the Lewis and Clark expedition, to Daniel Boone’s experiences on the Kentucky frontier—the article paints a picture of frontier life in which firearms were indispensable for survival rather than merely sporting implements.

The article then extends this historical analysis into the present, arguing that while encounters with dangerous wildlife are rarer today, they have not disappeared. It documents modern wolf attacks in Alaska and Canada—including the 2010 fatal attack on Alaska teacher Candice Berner—bear maulings in national parks, moose attacks on Iditarod sled teams, and the explosive growth of feral hog populations in Texas and elsewhere that cause an estimated two billion dollars in annual agricultural damage. The article also notes that subsistence hunting remains meaningful for many Americans, citing survey data showing that the share of hunters identifying meat as their primary motivation grew substantially after the 2008 recession. Tying these threads back to constitutional doctrine, the article argues that under Heller’s instruction that rights are “enshrined with the scope they were understood to have when the people adopted them,” the everyday reality that Founding-era Americans needed to carry firearms outside the home to defend against animals, protect their farms, and feed their families is powerful evidence that the Second Amendment cannot rationally be confined to the home. Quoting the Seventh Circuit’s decision in Moore v. Madigan and Charles Sumner’s “Bleeding Kansas” speech, the article concludes that the rifle’s historical role as the pioneer’s companion against beasts of the forest reinforces the wisdom of constitutionally protecting a right to bear arms in public.

This article argues that since deciding District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court has failed to protect Second Amendment rights with the same vigor it applies to other enumerated constitutional protections, and it urges the Court to revive two longstanding jurisprudential tools to remedy this neglect. The first tool is drawn from Footnote Four of United States v. Carolene Products Co., which the article describes as the most famous footnote in American legal history. Footnote Four supports both a “preferred freedoms doctrine”—calling for heightened judicial scrutiny of laws that restrict rights enumerated in the Bill of Rights—and a doctrine protecting “discrete and insular minorities” from oppressive legislation enacted by hostile majorities. The article contends that because the Second Amendment is an enumerated, fundamental right deemed by the Court not to be a “second-class right,” restrictive firearms legislation should receive enhanced scrutiny under the preferred freedoms doctrine, just as the Warren and Burger Courts applied it to expand First, Fourth, and Fifth Amendment protections. Drawing on the analytical framework used in Golinski v. U.S. Office of Personnel Management, the article further argues that gun owners in hostile urban jurisdictions like New York City, Chicago, San Francisco, and parts of New Jersey, Maryland, and Massachusetts satisfy the criteria for discrete and insular minority status: they have suffered a history of discrimination, their conduct contributes to society, gun ownership is bound up with personal identity, and they lack meaningful political power in those jurisdictions.

The second tool the article emphasizes is the Supreme Court’s traditional role of enforcing nationally accepted norms against outlier local jurisdictions, comparing the situation of gun owners today to the mainstream rights vindicated in cases like Griswold v. Connecticut and Lawrence v. Texas. Marshalling Pew Research data and figures on concealed-carry permits, the article maintains that the right to bear arms enjoys broad popular support nationwide—with forty-four states allowing relatively unrestricted public carry—making the handful of restrictive “may issue” jurisdictions extreme outliers rather than reflections of a national consensus. The article frames the gun debate as fundamentally cultural, pitting rural and heartland Americans who associate firearms with self-sufficiency and liberty against coastal urban elites who view firearms with disdain, citing remarks by figures like Barack Obama, Hillary Clinton, and Andrew Cuomo as evidence of that contempt. Surveying a decade of lower-court decisions upholding concealed-carry restrictions, “assault weapon” bans, magazine limits, ammunition restrictions, and waiting periods—particularly in the Ninth Circuit, which the article accuses of applying a double standard favoring rights like abortion and nude dancing over the Second Amendment—the article echoes Justice Thomas’s complaint that the right to keep and bear arms has become a “constitutional orphan.” It concludes that the Roberts Court, especially with Justice Amy Coney Barrett’s elevation, should now deploy both Footnote Four’s preferred freedoms and discrete-and-insular-minorities doctrines, along with the national baseline principle, to vindicate Second Amendment rights against outlier metropolitan majorities that continue to defy Heller and McDonald.

This article responds to claims by gun-control advocates that adopting “Shall Issue” or “Right-to-Carry” (RTC) regimes for concealed handgun licenses produces catastrophic public-safety consequences, arguing instead that the empirical evidence does not support such fears. It surveys law enforcement opinion and notes that police rank-and-file and leadership broadly support concealed carry by qualified citizens, citing a 2013 PoliceOne survey in which over 91% of officers backed civilian concealed carry and a 2016 National Association of Chiefs of Police survey in which 86.4% supported nationwide reciprocity. The article then walks through three major non-partisan reviews of the firearms research literature—the National Research Council’s 2005 review, the CDC’s 2005 review, and the RAND Corporation’s 2018 review—each of which concluded that the evidence on whether RTC laws affect homicide, robbery, assault, rape, or mass shootings is inconclusive, with no reliable showing that such laws increase violent crime. The article also identifies a methodological flaw running through most of this research: studies typically examine general homicide or firearms-homicide rates rather than handgun-specific homicides committed by license holders, making them poorly suited to evaluating laws that govern only the public carrying of handguns.

The article then rebuts five speculative mechanisms proposed by Stanford professor John Donohue through which RTC laws might supposedly increase crime: misconduct by permit holders, increased gun thefts, an enhanced “culture of violence,” an arms race with criminals, and impairment of police effectiveness. Drawing on data from Texas, Florida, Nevada, Kentucky, South Carolina, North Carolina, and Michigan, it argues that license holders are dramatically more law-abiding than the general population—Texas non-licensees, for instance, are convicted of serious violent crimes 553 times more often than CHL holders. It dismantles the Violence Policy Center’s “Concealed Carry Killers” tally as a collection of unreliable anecdotes drawn partly from entertainment websites and Twitter, noting that roughly half its incidents are suicides and many others involve cases where no concealed handgun was actually used or where the killer was a retired police officer. The article ultimately contends that this entire empirical debate is beside the point: the Second Amendment is a fundamental constitutional right rather than a social policy subject to cost-benefit analysis, and as the D.C. Circuit held in Wrenn v. District of Columbia, laws barring typical law-abiding citizens from carrying firearms in public for self-defense are categorically unconstitutional. Even if social science were relevant under heightened scrutiny, the article concludes, the available evidence cannot justify meaningful restrictions on public carry.

This article argues that Cesare Beccaria, the eighteenth-century Italian Enlightenment thinker often called the father of modern criminology, exerted substantial influence on the American Founders’ thinking about the right to keep and bear arms, yet his contributions in this area have been largely overlooked by courts and legal scholars. The article establishes that Beccaria’s treatise On Crimes and Punishments was widely read and discussed during the Founding era, with figures like Thomas Jefferson, John Adams, James Madison, Benjamin Franklin, and others engaging deeply with his ideas. While the legal community has increasingly recognized Beccaria’s influence on areas such as the death penalty, proportionality in sentencing, and the Eighth Amendment’s prohibition on cruel and unusual punishments, the article contends that this recognition has been selective, conspicuously omitting his views on firearms. Drawing particularly on Beccaria’s chapter “False Ideas of Utility,” the article highlights his argument that laws forbidding the carrying of arms disarm only the law-abiding, embolden criminals, and undermine personal liberty—a passage Jefferson famously transcribed into his commonplace book in the original Italian.

The article further contends that this scholarly oversight is especially troubling in light of the Supreme Court’s emphasis, since District of Columbia v. Heller, on Founding-era historical evidence in interpreting the Second Amendment. Pointing to opinions such as State v. Hirsch, Gowder v. City of Chicago, and dissents from then-Judge Amy Coney Barrett and Judge Stephanos Bibas, the article suggests that some courts have begun applying Beccarian logic to firearms cases, but that broader judicial and academic engagement remains lacking. Applying Beccaria’s framework to contemporary America, the article criticizes the prosecution of individuals like the McCloskeys, the proliferation of restrictive permitting regimes in jurisdictions such as New York City, and what it describes as the inconsistency of governments that release inmates and decline to enforce certain laws while penalizing law-abiding citizens for possessing firearms. The article concludes that any originalist interpretation of the Second Amendment is incomplete without considering Beccaria, whose writings provide additional historical support for an individual right rooted in personal liberty, self-defense as a natural right, and utilitarian reasoning about deterring lawlessness.

This article argues that gun-control advocates, having failed to enact their preferred restrictions through legislation, have increasingly turned to “lawfare”—the use of costly, drawn-out litigation to financially cripple firearms manufacturers and sellers regardless of legal merit. To counter this trend, the article points to Justice John Paul Stevens’s 1984 majority opinion in Sony Corp. v. Universal City Studios, the so-called Betamax case, in which Hollywood studios attempted to use the courts to outlaw VCRs because the devices could be used to infringe copyrights. Justice Stevens rejected that effort, holding that the sale of equipment widely used for legitimate, unobjectionable purposes does not create contributory liability for the wrongful acts of third parties. The article contends that this same reasoning applies squarely to firearms such as the AR-15, which it describes as the most popular rifle in America and one used overwhelmingly for lawful purposes like sport shooting, hunting, and self-defense, with only a tiny fraction involved in crime. Under what the article calls the “Stevens Test,” manufacturers should not be held responsible when criminals misuse their lawfully sold products.

The article further explains that Congress codified a similar principle in 2005 by passing the Protection of Lawful Commerce in Arms Act (PLCAA), which was designed to halt the wave of municipal and activist-driven suits aimed at bankrupting gunmakers through legal fees rather than legitimate verdicts. However, the article warns that creative plaintiffs’ attorneys have begun exploiting narrow exceptions in the PLCAA, citing the Connecticut Supreme Court’s decision in the Sandy Hook case allowing an Unfair Trade Practices Act claim to proceed against Remington as a particularly troubling example. Drawing on cases like the Lucky Gunner ammunition lawsuit, the Ringling Brothers animal-cruelty litigation, and the bankruptcy of Remington following Parkland and Sandy Hook lawsuits, the article emphasizes that even meritless suits impose enormous financial and operational costs that can drive companies out of business—an outcome some activists openly seek. The article concludes that, despite Justice Stevens’s later call to repeal the Second Amendment, his reasoning in Betamax remains a sound and important precedent, and that today’s courts should honor both that logic and the congressional intent behind the PLCAA when adjudicating suits that seek to hold lawful industries accountable for the criminal acts of unrelated third parties.

This article argues that so-called “assault weapon” bans are unconstitutional because they target an arbitrary, politically constructed category of firearms rather than a meaningful functional class. It opens by emphasizing that “assault weapon” is not a technical term but a political label coined by gun-control advocate Josh Sugarmann of the Violence Policy Center, who recognized that the public could not easily distinguish ordinary semiautomatic rifles from fully automatic military M16s. The article explains that the AR-15 platform—the most prominent target of these bans—is an ordinary semiautomatic rifle that has been sold to American civilians for over fifty years, fires only one bullet per trigger pull, and is actually less powerful in typical calibers than common deer-hunting rifles. It contends that the cosmetic and ergonomic features that statutes use to define “assault weapons”—pistol grips, adjustable shoulder stocks, bayonet lugs, muzzle brakes—are arbitrary, often improve accuracy and safety, and bear no rational relationship to lethality. Six states and the District of Columbia have nonetheless banned these firearms, turning otherwise law-abiding citizens into felons for possessing items that are perfectly legal in forty-four states.

The article then argues that under the Supreme Court’s framework in Heller, McDonald, and Caetano v. Massachusetts, AR-15s easily satisfy the “common use for lawful purposes” test, given that five to eight million are owned by Americans for hunting, target shooting, and self-defense. It criticizes the four federal courts of appeals that have upheld these bans—the Second, Fourth, Seventh, and D.C. Circuits—for ignoring Heller and effectively adopting Justice Breyer’s rejected interest-balancing approach, and it suggests these outcomes partly reflect a jurisdictional bias since such bans are enacted only in politically blue states. The article highlights then-Judge Kavanaugh’s dissent in Heller II, which applied a “text, history, and tradition” test and concluded that semiautomatic rifle bans are unconstitutional, as a roadmap for the Supreme Court going forward. It rebuts the public-safety justification by noting that other constitutional rights—like the Fourth Amendment’s exclusionary rule—also impose social costs without being discarded, and cites a 2018 RAND Corporation study finding no reliable evidence that “assault weapon” bans reduce crime. The article closes by arguing that because police have no legal duty to protect individuals and often cannot arrive in time, citizens are their own first responders and are entitled to choose firearms comparable to those carried by law enforcement. Anyone who finds this constitutionally unacceptable, it concludes, should pursue Article V amendment rather than subvert the Second Amendment through legislation and judicial deference.