The Positive Second Amendment - 9.20.21 Powerpoint (only ...

Effective asa matter of policy

Politically feasible Constitutional

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A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

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[N]othing in our opinion should be taken to cast doubton longstanding prohibitions on the possession offirearms by felons and the mentally ill, or lawsforbidding the carrying of firearms in sensitive placessuch as schools and government buildings, or lawsimposing conditions and qualifications on thecommercial sale of arms.

District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008) (citations omitted).

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We … recognize another important limitation on theright to keep and carry arms. Miller said, as we haveexplained, that the sorts of weapons protected werethose “in common use at the time.” We think thatlimitation is fairly supported by the historical traditionof prohibiting the carrying of “dangerous and unusualweapons.”

District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008) (citations omitted).

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Does the law burden conduct covered by the Second Amendment?

No

Examples: assault Weapons, felons, concealed carrying

Challenge Fails

*Possible exception for as-applied challenges

Yes (Or Uncertain)

Examples: public carry

Does the law survive the applicable level of

scrutiny?

Yes

Challenge Fails

Example: “good cause” public carry requirements

No

Challenge succeeds

Example: public carry bans

“A two-step inquiry has emerged as the prevailing approach: the first step is to determine … whether the law regulates conduct that falls within the scope of the Second Amendment's guarantee; the second step is to determine whether to apply intermediate or strict scrutiny to the law, and then to determine whether the law survives the proper level of scrutiny.”

NRA v. ATF, 700 F.3d 185, 194 (5th Cir. 2012).

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“In the post-Heller world, where it is now clear that the Second Amendment right to bear arms is no second-class entitlement, we see no principled way to carve out the Second Amendment and say that the unauthorized (or maybe all noncitizens) are excluded. No language in the Amendment supports such a conclusion, nor, as we have said, does a broader consideration of the Bill of Rights.”

United States v. Meza-Rodriguez, 798 F.3d 664, 672 (7th Cir. 2015).

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

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Supreme Court

Courts of Appeals

State Courts

Courts of Appeals

District Courts

Harvard University - Harvard Law School Library / England. Magna Carta Cum Statutis, ca. 1340. Manuscript. HLS MS 55, Harvard Law School Library.

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Tombstone, Arizona, ca. 1881

Dodge City, KS, ca. 1878.

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Dodge City, KS

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A Ford F-150, the best-selling truck in America

A variant of the AR-15, the best-selling gun in America

“[I]n 2012, the number of AR- and AK- style weapons manufactured and imported into the United States was “more than double the number of the most commonly sold vehicle in the U.S., the Ford F-150.”

Kolbe v. Hogan, 849 F.3d 114, 153 (4th Cir.) (Traxler, J., dissenting) (citations omitted), cert. denied, 138 S. Ct. 469 (2017)

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Concealed Carry Reciprocity by StateClashing Protestors at the Unite the Right Rally in Charlottesville, Va., August 12, 2017

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Dick Heller speaking outside the Supreme Court.

The District’s law “makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.”

District of Columbia v. Heller, 554 U.S. 570 (2008).

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President Obama announcing the nomination of Merrick Garland, whose record on gun rights would be challenged.

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