44392 nys 77-2

CONSTITUTIONAL GUN LITIGATION

BEYOND THE SECOND AMENDMENT

JOSEPH BLOCHER & NOAH LEVINE*

INTRODUCTION

Litigation, scholarship, and commentary about gun rights and

regulation tend to focus nearly exclusively on the Second Amend-

ment’s right to keep and bear arms—a constitutional guarantee

that was for all intents and purposes legally inert until the Supreme

Court’s decision in District of Columbia v. Heller.

In the twelve years

since Heller, the Second Amendment has been the subject of sub-

stantial litigation

and an increasingly broad and deep scholarly

conversation, as the questions presented now go beyond the thresh-

old issue of whether the right to keep and bear arms encompasses

private purposes like the ownership of arms for self-defense in the

home.

This richer debate about the Second Amendment is a welcome

development. But it still does not capture the full scope of gun

rights and regulation. As a matter of law, let alone public discourse,

the right to keep and bear arms is defined not only by the Second

Amendment, but also by a wide range of statutory guarantees, in-

cluding special immunity for manufacturers and sellers of guns,

state-level preemption laws,

“sanctuary” resolutions,

and other

sub-constitutional lawmaking.

This “right to keep and bear arms

* Lanty L. Smith ‘67 Professor of Law, Duke Law School; Duke Law School

‘23. Many thanks to Jake Charles and Darrell Miller for comments, to Alexys

Ogorek and Sam Wolter for research help, and to Carson Whitehurst for excellent

editorial suggestions.

1. 554 U.S. 570 (2008).

2. Eric Ruben & Joseph Blocher, From Theory to Doctrine: An Empirical Analysis

of the Right to Keep and Bear Arms After Heller, 67

UKE

L.J.

1433 (2018).

3. See 15 U.S.C. § 7903(5)(A) (2021) (providing that, except in certain nar-

row circumstances, no person can sue gun sellers or manufacturers for injuries

“resulting from the criminal or unlawful misuse of a [gun] by the person or a third

party”).

4. See Rachel H. Simon, The Firearm Preemption Phenomenon, 43

ARDOZO

(forthcoming 2022).

5. See generally Shawn E. Fields, Second Amendment Sanctuaries, 115

. U.L.

437 (2020) (discussing the legal viability of local governments resisting state

gun-control measures they consider unconstitutional).

6. We do not posit a bright line between these rules and “constitutional

law”—certainly statutes, ordinances, and even broader cultural and political forces

175

176 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 77:175

outside the constitution”

has been the focus of increased scholarly

attention, not to mention litigation.

But to fully understand the landscape of gun litigation, it is

important also to account for other constitutional gun rights

claims—those that do not derive, at least not directly, from the Sec-

ond Amendment.

In Part I of this short Article, we highlight some

of the most prominent of these claims, including those deriving

from the Due Process Clause,

Takings Clause,

and the First

Amendment.

Our goal is primarily to describe and illustrate, not

to evaluate, though it is worth noting that some of these claims ap-

pear much stronger than others—and perhaps stronger than some

have an important role to play in what we collectively regard as “constitutional.” See

Richard A. Primus, Unbundling Constitutionality, 80 U.

. L. R

1079 (2013).

But we can nonetheless recognize something distinct about formal constitutional

claims—those that a court might invoke to trump other forms of lawmaking—and

those are our focus here.

7. Jacob D. Charles, Securing Gun Rights by Statute: The Right To Keep and Bear

Arms Outside the Constitution, 110

ICH

. L. R

(forthcoming 2022); Adam Win-

kler, Is the Second Amendment Becoming Irrelevant?, 93

. L.J. 253 (

2018).

8. The PLCAA, to take just one example, has been the subject of prominent

cases attempting to get around the federal limitations on seller liability. See, e.g.,

Soto v. Bushmaster Firearms Int’l, LLC, 203 A.3d 262, 272 (Conn. 2019) (holding

that PLCAA did not bar claim that gun company violated Connecticut’s unfair

trade practices law when it “knowingly marketed, advertised, and promoted the

XM15-E2S for civilians to use to carry out offensive, military style combat missions

against their perceived enemies”), cert. denied sub nom. Remington Arms Co. v.

Soto, 140 S. Ct. 513 (Nov. 12, 2019); Michael C. Dorf, Mexican Government Lawsuit

Against U.S. Gun Makers Tests the Limits of Territoriality,

ERDICT

(Sept. 1, 2021),

https://verdict.justia.com/2021/09/01/mexican-government-lawsuit-against-u-s-

gun-makers-tests-the-limits-ofl-territoriality [https://perma.cc/2EY7-HZM9].

9. In fact, if we were to broaden the lens more to include constitutional

claims that incidentally involve guns, then we would be well on our way to a com-

plete constitutional law syllabus. See, e.g., Printz v. United States, 521 U.S. 898

(1997); United States v. Lopez, 514 U.S. 549 (1995); United States v. Curtiss-

Wright Export Corp., 299 U.S. 304 (1936); see also Jake Charles, Forging Con Law

Through a Gun Regulation Lens,

ECOND

HOUGHTS

LOG

(June 19, 2019), https://

firearmslaw.duke.edu/2019/06/forging-con-law-through-a-gun-regulation-lens/

[https://perma.cc/3ZGX-JBJS].

10. See infra Section I.A.

11. See infra Section I.B.

12. See infra Section I.C. Because they have been discussed in detail elsewhere,

we hold aside gun-related Fourth Amendment claims. See, e.g., Caniglia v. Strom,

141 S. Ct. 1596, 1597 (2021) (finding that police’s community caretaking responsi-

bilities could not justify warrantless search of home and seizure of petitioner and

his firearms); United States v. Robinson, 846 F.3d 694, 699 (4th Cir. 2017) (hold-

ing that a police officer’s traffic stop of a lawfully armed person is inherently dan-

gerous and thus justifies a Terry frisk); Jeffrey Bellin, The Right to Remain Armed, 93

ASH

. U. L. R

. 1 (2015).

2022] CONSTITUTIONAL GUN LITIGATION 177

courts have credited. Moreover, some constitutional claims some-

times cut against the interests of gun owners (for example, by call-

ing into question the constitutionality of “parking lot” laws that

require private business owners to permit guns on their prop-

erty).

The paths of argumentation therefore involve tradeoffs and

countervailing considerations for gun advocates, courts, and other

stakeholders.

In Part II of the Article, we address two broader and more spec-

ulative questions. First, how do these constitutional claims interact

with traditional Second Amendment arguments? Evaluating that

question suggests much about how litigants perceive the relative

strength and utility of their rights—for example, whether these liti-

gants might best vindicate their constitutional rights under provi-

sions other than the Second Amendment. And, going forward, the

answers will depend greatly on what the Supreme Court decides in

the pending case of New York State Rifle & Pistol Association v.

Bruen,

which involves the question of whether the right to keep

and bear arms extends outside the home. An affirmative holding

could shape the outcome of other constitutional claims, such as

whether public carry is expressive conduct or whether Due Process

protects a “liberty” in the context of public carry permits.

Second, we ask what this polycentric constitutional understand-

ing of gun rights—that is, an understanding that includes the full

scope of potential constitutional rights beyond the Second Amend-

ment—entails for those who support gun regulation as a means to

preserve not only their own physical safety, but their freedom to

engage in free speech, assembly, worship and other constitutionally

salient activities.

CONSTITUTIONAL GUN RIGHTS CLAIMS OUTSIDE

THE SECOND AMENDMENT

A. Due Process

As with other constitutional rights whose exercise sometimes

depends on state permitting schemes or other discretionary deci-

13. See infra notes 72–88 and accompanying text.

14. See New York State Rifle & Pistol Ass’n v. Corlett, No. 20-843, 2021 WL

1602643 (U.S. Apr. 26, 2021) (granting certiorari on the question “[w]hether the

State’s denial of petitioners’ applications for concealed-carry licenses for self-de-

fense violated the Second Amendment”).

15. See Joseph Blocher & Reva B. Siegel, When Guns Threaten the Public Sphere:

A New Account of Public Safety Regulation Under Heller, 116

NW. U. L. R

139

(2021).

178 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 77:175

sion-making—free speech, for example

—gun rights sometimes

intersect with due process. Claims based on due process have been

particularly prominent in challenges to state licensing schemes for

public carry of firearms, and more recently in challenges to ex-

treme risk protection order laws, also known as “red flag laws.”

address each in turn.

1. Concealed Carry Permits

Twenty-five states require citizens to apply for permits before

carrying concealed weapons in public.

Each of these states has

established minimum criteria that applicants must satisfy to receive

their permits. For example, applicants in North Carolina must be at

least 21 years old,

and those in California must have completed a

training course.

Some citizens who have been denied a license (or

had their licenses revoked) have raised Fourteenth Amendment

due process claims. The viability of these claims has largely de-

pended on the amount of discretion the state’s permitting require-

ments vest with the issuing authority.

As a threshold matter, challengers invoking the Fourteenth

Amendment’s Due Process Clause must show that the state has de-

prived them of liberty or property.

In keeping with Heller’s indica-

tion that concealed carrying is not protected by the Second

Amendment

(as opposed, perhaps, to open carrying

), courts

have generally dismissed claims that applicants have a liberty inter-

16. See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969)

(holding that city council’s unbridled power to deny public demonstration permits

was an unconstitutional restraint on free speech); Freedman v. Maryland, 380 U.S.

51, 58 (1965) (requiring that Maryland’s film censorship review board implement

procedural safeguards that mitigate the burden on exhibitors’ free speech).

17. See infra notes 33–52 and accompanying text.

18. See Concealed Carry,

IFFORDS

L. C

., https://giffords.org/lawcenter/gun-

laws/policy-areas/guns-in-public/concealed-carry/ (last visited Oct. 7, 2021). The

remaining twenty-five states generally allow people to carry concealed weapons in

public without a permit. Id.

19. N.C. Gen. Stat. Ann. § 14-415.12.

20. Cal. Penal Code § 26150.

21. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569-70 (1972)

(“The requirements of procedural due process apply only to the deprivation of

interest encompassed by the Fourteenth Amendment’s protection of liberty and

property.”).

22. District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (stating that the

Second Amendment right is not absolute and listing as an example the fact that

“the majority of the 19th-century courts to consider the question held that prohibi-

tions on carrying concealed weapons were lawful under the Second Amendment

or state analogues”); see also Peruta v. County of San Diego, 824 F.3d 919, 939 (9th

Cir. 2016) (en banc) (“We therefore conclude that the Second Amendment right

2022] CONSTITUTIONAL GUN LITIGATION 179

est in holding a concealed firearms permit.

There is no constitu-

tional right to engage in the activity at all, let alone to do so with a

state permit.

Litigants have accordingly tended to train their due process ar-

guments on their property rights. And in some cases, courts have

found that the denial of a concealed carry permit can indeed con-

stitute a deprivation of property eligible for due process protection.

Specifically, challengers have been successful in states where offi-

cials have no discretion to deny applicants who meet the minimum

criteria. Only then does a qualified applicant “have more than a

unilateral expectation of [the permit] . . . instead, [the applicant

has] a legitimate claim of entitlement to it.”

The Fourteenth

Amendment ensures due process protection over that entitlement.

Of course, that is not to say that these states cannot deny appli-

cations, only that they must comply with due process in doing so.

That might require the state to allow evidentiary hearings in appeal

of non-issuance decisions,

offer adequate notice of the reasons for

permit revocation,

or provide for a reasonably swift appeal.

States which give issuing authorities no discretion in denying

applicants are often called “shall issue” states, of which there are

currently ten.

It is important to note that seven other states use

“shall issue” language in their permit application statutes, yet still

grant some minimal discretion to state authorities.

Even the

slightest grant of discretion can eliminate due process coverage for

to keep and bear arms does not include, in any degree, the right of a member of

the general public to carry concealed firearms in public.”).

23. See Jonathan Meltzer, Note, Open Carry for All: Heller and Our Nineteenth-

Century Second Amendment, 123

ALE

L.J.

1486 (2013).

24. See, e.g., Oquendo v. City of New York, 492 F. Supp. 3d 20, 28 (E.D.N.Y.

2020); White v. Illinois State Police, 482 F. Supp. 3d 752, 771 (N.D. Ill. 2020);

Nichols v. Santa Clara, 223 Cal. App. 3d 1236, 1244-45 (1990).

The Supreme Court’s pending decision in Bruen could alter the trajectory of

these claims. If the right to carry a gun in public is recognized as a core Second

Amendment right, then challengers might be better able to claim that permit non-

issuances and revocations implicate due process.

25. Roth, 408 U.S. at 577.

26. See DeBruhl v. Mecklenburg Cnty. Sheriff’s Off., 815 S.E.2d 1, 7 (N.C. Ct.

App. 2018).

27. See Caba v. Weaknecht, 64 A.3d 39, 66 (Pa. Commw. Ct. 2013).

28. See Kuck v. Danaher, 600 F.3d 159, 167 (2d Cir. 2010).

29. Concealed Carry,

IFFORDS

L. C

., https://giffords.org/lawcenter/gun-

laws/policy-areas/guns-in-public/concealed-carry/ (last visited Oct. 7, 2021).

[perma.cc/9L7T-EWLV]

30. See id.

180 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 77:175

unsuccessful applicants,

because it takes away any property inter-

est they might assert.

On a few occasions, permit applicants have also challenged

state permit requirements for being unconstitutionally vague. To

this point, courts have upheld states’ concealed carry permit re-

quirements against these challenges.

In short, due process chal-

lenges to permit provisions have generally not fared well.

2. “Red Flag” Laws

Nineteen states have adopted laws that allow courts to tempo-

rarily restrict individuals who pose an imminent risk of harm from

possessing firearms.

These extreme risk laws – also called “red

flag” laws – enable law enforcement officers or others

to petition a

court to require gun owners to relinquish their firearms and abstain

from acquiring others. Though some argue that extreme risk laws

violate the Second Amendment, the more substantive concern is

whether these laws comport with the Fourteenth Amendment’s due

process guarantee.

Some critics assert that extreme risk laws punish individuals

based not on conduct but on predictions of their future conduct.

Some have likened such laws to the film Minority Report, in which a

“PreCrime” department arrests people based on mindreading and

predictions of their future behavior.

Other opponents regard

31. See King v. Wyoming Div. of Crim. Investigation, 89 P.3d 341, 351-52

(Wyo. 2004). Wyoming has since removed such discretion from issuing authorities.

32. See, e.g., Sibley v. Watches, 460 F. Supp. 3d 302, 316-18 (W.D.N.Y. 2020);

Kuck v. Danaher, F. Supp. 2d 109, 135-36 (D. Conn. 2011); Bleiler v. Chief, Dover

Police Dep’t, 927 A.2d 1216, 1225-26 (N.H. 2007). But cf. Gowker v.Chicago, 923 F.

Supp. 2d 1110, 1116-17 (N.D. Ill. 2012) (holding that a city ordinance was uncon-

stitutionally vague when it treated simple possession of a firearm as “an unlawful

use of a weapon that is a firearm”).

33. Extreme Risk Protection Orders,

IFFORDS

L. C

, https://giffords.org/

lawcenter/gun-laws/policy-areas/who-can-have-a-gun/extreme-risk-protection-or-

ders/ (last visited Sept. 10, 2021)[https://perma.cc/X6QK-YX2Z].

34. Id. Twelve states allow household members and law enforcement to peti-

tion a court for an extreme risk protection order. Five states restrict petitioners to

law enforcement officers. Other states allow mental health professionals, school

administrators, medical professionals, coworkers, or others to submit petitions.

35. See Joseph Blocher & Jacob D. Charles, Firearms, Extreme Risk, and Legal

Design: “Red Flag” Laws and Due Process, 106

. L. R

. 1285 (2020).

36. See, e.g., Alan M. Dershowitz, A Yellow Light for Red-Flag Laws,

ALL

. J.

(Aug. 6, 2019, 6:55 PM), https://www.wsj.com/articles/a-yellow-light-for-red-flag-

laws-11565132144?mod=searchresults&page=1&pos=5[https://perma.cc/QME7-

DJFE].

37. See Blocher and Charles, supra note 35, at 1316-17.

2022] CONSTITUTIONAL GUN LITIGATION 181

these orders as “Kafkaesque. . .stripping Americans of their consti-

tutional rights in secret proceedings where they have no voice.”

While the demands of due process are not formulaic, the gov-

ernment must generally provide both notice and a hearing before

depriving a person of constitutionally protected liberty or property

interests.

The challenge is that extreme risk statutes aim to

quickly extinguish imminent risks of harm, and there might not al-

ways be time for a thorough evidentiary hearing before a temporary

gun seizure. And in fact, the Supreme Court has recognized two

situations where a post-deprivation hearing still satisfies due process

demands: (1) occasions “where a State must act quickly” and (2)

those “where it would be impractical to provide predeprivation

process.”

In Fuentes v. Shevin,

the Supreme Court created a three-ele-

ment test to analyze the constitutionality of deprivations conducted

before a hearing.

First, the deprivation must be “directly necessary

to secure an important governmental or general public interest.”

Second, there must be “a special need for very prompt action.”

Third, “the person initiating the seizure [must be] a government

official responsible for determining, under the standards of a nar-

rowly drawn statute, that it was necessary and justified in the partic-

ular instance.”

Later, in Mathews v. Eldridge,

the Court refined its

procedural due process jurisprudence with a test balancing three

factors: (1) “the private interest that will be affected by the official

action,” (2) “the risk of an erroneous deprivation of such interest

through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards,” and (3) “the Gov-

38. See Michael Hammond, Kafkaesque ‘Red Flag Laws’ Strip Gun Owners of Their

Constitutional Rights,

USA T

ODAY

(Apr. 19, 2018, 2:30 PM), https://www.usatoday.

com/-story/opinion/2018/04/19/red-flag-laws-strip-gun-rights-violate-constitution

-column/52622-1002/[https://perma.cc/T2BZ-AWY7].

39. Henry J. Friendly, “Some Kind of Hearing”, 123

U. P

. L. R

1267 (1975).

40. See Gilbert v. Homar, 520 U.S. 924, 930 (1997); see also Parratt v. Taylor,

451 U.S. 527, 539 (1981) (stating that “either the necessity of quick action by the

State or the impracticality of providing any meaningful predeprivation process,

when coupled with the availability of some meaningful means by which to assess

the propriety of the State’s action at some time after the initial taking, can satisfy

the requirements of procedural due process”), overruled on other grounds by Daniels

v. Williams, 474 U.S. 327 (1986).

41. 407 U.S. 67 (1972).

42. Id. at 90–92.

43. Id. at 91.

44. Id.

45. Id.

46. 424 U.S. 319 (1976).

182 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 77:175

ernment’s interest, including the function involved and the fiscal

and administrative burdens that the additional or substitute proce-

dural requirement would entail.”

Thus far, no court has found that an extreme risk statute vio-

lates due process.

Under the first Eldridge factor, extreme risk or-

ders do impact a substantial private interest in armed self-defense,

but only briefly (and often to protect an individual from self-

harm).

Under the second Eldridge factor, the risk of an erroneous

deprivation is not clear—it is not even clear how one could mea-

sure an erroneous deprivation.

Under the final Eldridge factor, the

governmental and public interests are significant: immediate risk of

suicide or homicide represent grave dangers that necessitate swift

action.

Ultimately, the interest in public safety in emergencies

likely overrides the delay of mere weeks for the final hearing.

Thus, the difficulty of showing a due process violation under El-

dridge renders these challenges unlikely candidates for advancing

gun rights.

B. Takings

The Fifth Amendment provides that states may claim private

property for public use if they pay “just compensation.”

The ar-

chetypal use of eminent domain involves an explicit taking of real

property.

Regulatory takings (also known as implicit takings) can

arise when regulations go “too far,” for example, when they deprive

property owners of all “reasonable beneficial use” of the property;

they, too, require just compensation.

Takings claims have proven to be a somewhat more fruitful av-

enue for gun rights advocates. The Supreme Court’s apparently

growing solicitude for property rights, including its recent takings

47. Id. at 335.

48. See, e.g., Hope v. State, 133 A.3d 519, 524-25 (Conn. App. Ct. 2016) (re-

jecting due process challenge); Redington v. State, 992 N.E.2d 823, 830-39 (Ind.

Ct. App. 2013) (same); Davis v. Gilchrist Cnty. Sheriff’s Off., 280 So. 3d 524, 533

(Fla. Dist. Ct. App. 2019) (same).

49. See Blocher & Charles, supra note 35, at 1332.

50. See id. at 1333.

51. See id. at 1334.

52. See id.

53. U.S.

ONST

amend. V.

54. See, e.g., Berman v. Parker, 348 U.S. 26, 36 (1984) (holding that seizure of

a blighted area for city development was a lawful exercise of eminent domain).

55. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 119, 138

(1978) (holding that a denial of a building permit application did not amount to a

taking requiring just compensation).

2022] CONSTITUTIONAL GUN LITIGATION 183

decision in Cedar Point Nursery v. Hassid,

suggests the possibility of

similar claims going forward. But not all of those claims will favor

gun rights—some might end up undermining state statutes de-

signed to protect gun possession on others’ private property.

1. Magazine and Accessory Restrictions

Some forms of gun regulation focus on the implement itself,

for example by prohibiting certain classes of firearms. Such laws

have been the subject of regulatory takings challenges, which have

occasionally succeeded.

California bans the possession of large capacity magazines

(LCMs)—defined as magazines that hold over ten rounds of ammu-

nition—and does not exempt those that are already lawfully

owned.

Preexisting owners have four options: remove their LCMs

from the state, sell them to a licensed dealer, submit them to law

enforcement, or modify them to comply with the regulation.

Maryland prohibits the possession of rapid-fire trigger activa-

tors (also known as bump stocks) which increase the fire rate of

weapons.

Though Maryland law allows preexisting owners to

maintain possession of their bump stocks so long as they receive

authorization from the United States Bureau of Alcohol, Tobacco,

Firearms and Explosives (ATF), the ATF does not currently process

applications for these authorizations. Therefore, as in California,

Maryland residents must dispossess themselves of their property.

Takings challenges to these two laws have produced very differ-

ent results. The United States District Court for the Southern Dis-

trict of California in Duncan v. Bonta granted summary judgment

for the challenger’s claim that California’s law was a per se taking (as

well as a violation of the Second Amendment).

The appeal is cur-

rently pending in the Ninth Circuit, which heard oral argument in

July 2021—with many questions from the bench addressing the tak-

56. 141 S. Ct. 2063 (2021) (holding that California’s regulation permitting

labor organizations to access an agricultural employer’s property constituted a

taking).

57. CAL. PENAL CODE § 32310(c) (Deering 2016).

58. Id. § 32310(d).

59. See MD. CODE ANN., CRIM. LAW § 4-305.1(a)(1) (LexisNexis 2019).

60. See Marie A. Bauer, Note, Too Quick on the Trigger: How the Fourth Circuit’s

Review of Regulatory Takings in Maryland Shall Issue, Inc. v. Hogan Failed to Consider

the Complexities of Takings Jurisprudence, 80

. L. R

. O

NLINE

89, 91–92 (2021).

61. Duncan v. Becerra, 366 F. Supp. 3d 1131, 1185–86 (S.D. Cal.

2019), aff’d, 970 F.3d 1133 (9th Cir. 2020), vacated, 988 F.3d 1209 (9th Cir. 2021).

184 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 77:175

ings claim.

The Fourth Circuit, on the other hand, held that Ma-

ryland’s bump stock ban was not a taking under the Fifth

Amendment.

Subsequent developments in Supreme Court takings jurispru-

dence may provide a stronger basis for decisions like Bonta by

widening the scope of per se takings to include appropriations of

core property rights.

In Cedar Point Nursery v. Hassid, petitioners

challenged a California regulation requiring agricultural employers

to allow union organizers onto their farm on a limited, but substan-

tial basis.

The Court’s prior precedents seemed to distinguish

physical occupations which are temporary/limited from those

which are permanent; only the latter have typically been character-

ized as per se takings requiring just compensation.

Though Califor-

nia’s access regulation was limited, the Court in Cedar Point found

that it was a taking because it “appropriate[d] a right to invade the

growers’ property. . . .”

The decision in Cedar Point thus bolstered

potential takings challenges to magazine restrictions as appropria-

tions of core property rights, and it may also have implications for

so-called “parking lot laws”—as we discuss in more detail below.

62. Noah Levine, On Cedar Point Nursery and Firearm Regulations,

ECOND

HOUGHTS

LOG

(July 23, 2021), https://firearmslaw.duke.edu/2021/07/on-

cedar-point-nursery-and-firearm-regulations/ [https://perma.cc/A2NV-8LSC].

63. Md. Shall Issue, Inc. v. Hogan, 963 F.3d 356, 367 (4th Cir. 2020); see also

Ass’n of N.J. Rifle &Pistol Clubs, Inc. v. Attorney Gen. N.J., 910 F.3d 106, 110 (3d

Cir. 2018) (holding that New Jersey’s LCM ban was not an unconstitutional tak-

ing); McCutchen v. United States, 145 Fed. Cl. 42, 53–56 (2019) (holding that

ATF’s reclassifying bump stocks as machine guns, and thus prohibiting their pos-

session, did not represent a taking).

64. Bauer, supra note 6060, at 106–08 (criticizing Fourth Circuit’s decision in

Maryland Shall Issue and advocating use of multi-factor test rather than categorical

analysis).

65. 141 S. Ct. 2063, 2069–70 (2021); see

. C

ODE

EGS

tit. 8,

§ 20900(e)(1)(A), (3)(A)–(B) (establishing a right of access by union organizers

for a maximum of three hours per day, 120 days per year).

66. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426

(1982) (“We conclude that a permanent physical occupation authorized by gov-

ernment is a taking without regard to the public interests that it may serve.”);

PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 83–84 (1980) (holding that a

requirement for a shopping center to permit speech and petitioning on company

property was not a taking because the center could impose time, place, and man-

ner restrictions).

67. 141 S. Ct. at 2072.

68. See infra notes 72–88 and accompanying text. See also Ilya Somin, ‘Gun-at-

Work Laws’ Violate the Property Rights of Business Owners,

ASH

. P

OST

(April 25, 2022)

https://www.washingtonpost.com/outlook/2022/04/25/gun-at-work-second-

amendment/ [https://perma.cc/4W34-A6WY] (arguing that such laws constitute

takings).

2022] CONSTITUTIONAL GUN LITIGATION 185

Moving forward, the Court seems likely to limit the scope of

what state governments can regulate without payment of just com-

pensation.

The challengers in Bonta have followed the example of

the plaintiffs in Cedar Point and argued in supplemental briefs that

California’s LCM regulation appropriates “the right to possess,

which is even more fundamental than the right to exclude.”

Under current takings jurisprudence, it is currently unclear

whether the distinction between real property (as in Cedar Point)

and chattel (as in Bonta or Maryland Shall Issue) is significant, but

Chief Justice Roberts’s majority opinion in Horne v. Department of

Agriculture seems to support the notion that they should be treated

the same: “The Government has a categorical duty to pay just com-

pensation when it takes your car, just as when it takes your home.”

2. Parking Lot Laws

The revival of strong takings doctrine is welcome news for gun

rights advocates seeking to challenge prohibitions on particular

classes of arms and accessories, including LCMs. But those same

takings principles—and, in particular, the Supreme Court’s Cedar

Point decision—also call into question some laws passed specifically

to protect guns and gun owners.

At least twenty-four states have adopted what are sometimes

called “parking lot laws” or “take your gun to work” laws.

They

vary in their particulars, but the purpose and effect of these laws is

to make it harder for private entities—often businesses—to exclude

guns from their property, for example by requiring that they allow

employees to leave guns in their cars during working hours. As the

Tenth Circuit put it, such laws “hold employers criminally liable for

69. This seems especially true given some Justices’ disdain for the broad inter-

pretation of the “public use” requirement for takings in Kelo v. City of New

London, 545 U.S. 469, 493-523 (2005) (permitting use of eminent domain to

transfer property from one private property owner to another). See Eychaner v.

City of Chicago, 141 S. Ct. 2422, 2423 (2021) (Thomas, J., dissenting in denial of

cert.) (“[T]his petition provides us the opportunity to correct the mistake the

Court made in Kelo.”).

70. Rule 28(j) Letter with Supplemental Authorities for Appellees, Virginia

Duncan et al. v. Rob Bonta, No. 19-55376 (en banc) (9th Cir. July 12, 2021); see 9th

Cir. R. 28(j).

71. See 576 U.S. 351, 358 (2015).

72. See Dru Stevenson, Workplace Violence, Firearm Prohibitions, and the New Gun

Rights, 55

U.S.F. L. R

. 179, 189–93 (2021) (describing spread of parking lot

laws); J. Blake Patton, Note, Pro-Gun Property Regulation: How the State of Oklahoma

Controls the Property Rights of Employers Through Firearm Legislation, 64

KLA

. L. R

81 (2011).

186 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 77:175

prohibiting employees from storing firearms in locked vehicles on

company property.”

In Ramsey Winch v. Henry, the Tenth Circuit was faced with a set

of constitutional challenges to Oklahoma’s parking lot law, which

made it illegal for any “person, property owner, tenant, employer,

or business entity” to prohibit any person besides a convicted felon

from bringing a gun onto “property set aside for any motor vehi-

cle.”

The court held that the law satisfied due process, was not

preempted, was not unconstitutionally vague, and—relevant for our

consideration here—that it did not constitute a taking.

The plaintiffs argued that “the Amendments are a physical per

se taking because they require Plaintiffs to provide an easement for

individuals transporting firearms”

—a claim strongly analogous to

the one advanced in Cedar Point.

But the Tenth Circuit held that

there was no exaction (a kind of taking), because “the Amend-

ments (1) apply to all property owners, not just Plaintiffs, (2)

merely limit Plaintiffs [sic] use of their property, and (3) do not

require Plaintiffs to deed portions of their property over to the state

for public use.”

Nor was there a per se taking, because “[a] per se

taking in the constitutional sense requires a permanent physical oc-

cupation or invasion, not simply a restriction on the use of private

property.”

Instead, the court found that “[a]s in PruneYard, Plain-

tiffs have not suffered an unconstitutional infringement of their

property rights, but rather are required by the Amendments to rec-

ognize a state-protected right of their employees.”

This appears to be precisely the line of reasoning that Cedar

Point rejects, given its holding that “government-authorized inva-

sions of property—whether by plane, boat, cable, or beach-

comber—are physical takings requiring just compensation.”

California’s law, the Court concluded in Cedar Point, “appropriates

a right to physically invade the growers’ property—to literally ‘take

access,’ as the regulation provides. It is therefore a per se physical

taking under our precedents.”

73. Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1202 (10th Cir. 2009).

74. 21 Okla. Stat. tit. 21, § 1289.7a; see Ramsey Winch Inc., 555 F.3d at 1202.

75. Ramsey Winch Inc., 555 F.3d at 1209-11.

76. Id. at 1209.

77. Cedar Point Nursery v. Hassid, 131 S. Ct. 2063, 2073–75 (9th Cir. 2021).

78. Ramsey Winch Inc., 555 F.2d at 1209.

79. Id.

80. Id. (citing PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980)).

81. Cedar Point, 131 S. Ct. at 2074.

82. Id. (citation omitted). See also id. (“[W]e have held that a physical appro-

priation is a taking whether it is permanent or temporary.”); id. at 2075 (“[W]e

2022] CONSTITUTIONAL GUN LITIGATION 187

If being required to permit labor organizers onto one’s land is

a per se taking, then it is hard to see how the same conclusion would

not follow for armed individuals. After Cedar Point, then, it would

appear that parking lot laws are on much shakier constitutional

ground, and a case like Ramsey Winch might come out the other

way.

Cedar Point, it should be noted, attempts to distinguish its hold-

ing from cases like PruneYard Shopping Center v. Robins on the basis

that the latter involved a mall that was “open to the public, welcom-

ing some 25,000 patrons a day.”

The Court continued: “Limita-

tions on how a business generally open to the public may treat

individuals on the premises are readily distinguishable from regula-

tions granting a right to invade property closed to the public.”

Assuming that such cases are indeed “readily distinguishable,” per-

haps parking lot laws are defensible insofar as they apply to public

parking for business customers and the like. But even then, it would

be hard to defend them as applied to employee lots and other

“non-public” places not covered by PruneYard.

Parking lot laws are not the only ones potentially ripe for tak-

ings challenges after Cedar Point. Texas, for example, prohibits

landlords from barring renters’ firearm possession.

That, too,

would seem to be an extreme imposition on the right to exclude.

Harder questions arise with regard to other laws that burden, but

do not forbid, exercise of that right. For example, some states have

detailed and burdensome signage requirements for businesses wish-

have recognized that physical invasions constitute takings even if they are intermit-

tent as opposed to continuous.”); id. at 2080 (“The access regulation grants labor

organizations a right to invade the growers’ property. It therefore constitutes a per

se physical taking.”); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 841-42 (1987)

(requiring that California pay just compensation before it could mandate that

property owners provide an easement on their beachfront property).

83. See also GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1264 (11th Cir.

2012) (“Thus, property law, tort law, and criminal law provide the canvas on which

our Founding Fathers drafted the Second Amendment. A clear grasp of this back-

ground illustrates that the pre-existing right codified in the Second Amendment

does not include protection for a right to carry a firearm in a place of worship

against the owner’s wishes.”).

84. See Cedar Point, 131 S. Ct. at 2076–77.

85. Id. at 2077.

86. See David Tarrant & Mar

ıa M

endez, What Are The Gun Laws In Texas, And

What’s Changing Sept. 1?,

ALLAS

ORNING

EWS

(Aug. 9, 2019), https://

www.dallasnews.com/news/2019/08/09/what-are-the-gun-laws-in-texas-and-what-s-

changing-sept-1/.

188 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 77:175

ing to exclude firearms.

These effectively make it harder to exer-

cise the core property rights celebrated in Cedar Point.

C. First Amendment

The intersection of the First and Second Amendments has

been the subject of substantial scholarly and judicial commentary.

Much of that commentary has focused on the prospects for useful

doctrinal borrowing—importing free speech doctrines to help give

shape to the post-Heller right to keep and bear arms.

More re-

cently, especially in the wake of prominent armed protests, scholars

and advocates have focused on the constitutional implications of

armed assembly.

Since our focus in this Article is on constitutional claims

outside the Second Amendment, we highlight here a subset of cases

in which gun owners have argued that public carry of firearms is

itself a constitutionally protected form of expressive conduct. Courts

have been skeptical of these claims.

87. See generally Christine M. Quinn, Reforming State Laws on How Businesses Can

Ban Guns: “No Guns” Signs, Property Rights, and the First Amendment, 50

U. M

ICH

. J. L.

EFORM

955 (2017).

88. For an interesting survey about public preferences on these issues, see Ian

Ayres & Spurthi Jonnalagadda, Guests with Guns: Public Support for “No Carry” De-

faults on Private Land, 48

J.L. M

. & E

THICS

183, 189-90 (2021) (finding that statis-

tically significant majorities would prefer “no carry” defaults with regard to

homeowners, employers, and retailers, but default permission in rented properties

and parking lots).

89. See, e.g., David B. Kopel, The First Amendment Guide to the Second Amendment,

ENN

. L. R

417, 419 (2014); Nelson Lund, Second Amendment Standards of

Review in a Heller World, 39

ORDHAM

. L.J.

1617, 1623 (2012) (“Faced with

harder cases, and with the fogginess of the Heller opinion, these courts under-

standably have reached for a framework resembling the familiar ‘baggage’ picked

up by the First Amendment.”); Jordan E. Pratt, A First Amendment-Inspired Approach

to Heller’s “Schools” and “Government Buildings”, 92

. L. R

537, 542 (2014)

(“[T]his Article concludes that lessons from First Amendment doctrine counsel in

favor of a narrow interpretation of Heller’s schools and government buildings.”).

90. See, e.g., Michael C. Dorf, When Two Rights Make a Wrong: Armed Assembly

Under the First and Second Amendments, 116

. U. L. R

111 (2021); Eric

Tirschwell & Alla Lefkowitz, Prohibiting Guns at Public Demonstrations: Debunking First

and Second Amendment Myths After Charlottesville, 65

UCLA L. R

. D

ISC

172 (2018);

Timothy Zick, Arming Public Protests, 104

OWA

L. R

223 (2018); Luke Morgan,

Note, Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Fire-

arms at Political Demonstrations, 68

UKE

L.J.

175 (2018).

91. For a broad and thoughtful overview, see Danny Li, The First Amendment

Weaponized: When Guns Become Public Discourse, 30

. & M

ARY

ILL

. J.

(forth-

coming 2022) (manuscript at 11-12) (on file with authors).

2022] CONSTITUTIONAL GUN LITIGATION 189

Most of these First Amendment claims have failed because tot-

ing a firearm in public, on its own, is not conduct imbued with the

type of particularized message covered by the First Amendment.

For example, in Northrup v. City of Toledo Police Division, the plaintiff

was walking his dog with a handgun holstered at the hip.

Police

officers, responding to a 911 dispatch, stopped the plaintiff when

they saw his gun and observed him making “furtive movements.”

After confirming he possessed a concealed-carry permit, they re-

leased him.

The district court granted summary judgment against

the plaintiff’s First Amendment claim because the plaintiff’s hol-

stered firearm, on its own, did not constitute protected

expression.

Courts have even been skeptical of First Amendment claims

when the plaintiff has a plausible political motive. In Burgess v. Wal-

lingford, the plaintiff bore a visibly holstered gun in a pool hall

before police officers encountered him.

Unlike the plaintiff in

Northrup, Burgess was wearing a shirt conveying support for the

right to bear arms, and he carried Connecticut Citizens Defense

League brochures on gun rights.

But the court still granted sum-

mary judgment against his claim, because “reasonable officers

could disagree whether or not there was a great likelihood of plain-

tiff’s [conduct] conveying a message to those who viewed it.”

At least one court has suggested that carrying a gun may only

constitute protected expression when the actor is “a gun protestor

burning a gun [or] a gun supporter waving a gun at an anti-gun

control rally.”

Thus far, however, even this form of expression has

been insufficient to garner First Amendment protection. In 2020,

gun rights advocacy groups planned an armed protest of pending

Virginia gun control measures; in advance of the rally, Virginia Gov-

92. According to Spence v. Washington, the First Amendment’s free speech

clause covers conduct when the actor has an “intent to convey a particularized

message,” and the message is likely to be understood others. 418 U.S. 405, 410-11

(1974). Most carrying-as-expression claims fail this standard. See, e.g., Baker v.

Schwarb, 40 F. Supp. 3d 881, 893 (E.D. Mich. 2014); Deffert v. Moe, 111 F. Supp.

3d 797, 814 (W.D. Mich. 2015); Northrup v. City of Toledo Police Div., 58 F. Supp.

3d 842, 848 (N.D. Ohio 2014); Nordyke v. King, 319 F.3d 1185, 1190 (9th Cir.

2003); Chesney v. City of Jackson, 171 F. Supp. 3d 605, 616–17 (E.D. Mich. 2016).

93. Northrup, 58 F. Supp. at 845.

94. Id. at 845–46.

95. Id. at 847–49 (“Northrup also fails to identify any case in which a court

concluded that gun possession alone conveys any message at all.”).

96. No. 11-CV-1129, 2013 WL 4494481, at *1 (D. Conn. May 15, 2013).

97. See id.

98. Id. at 9.

99. Nordyke v. King, 319 F.3d 1185, 1190 (9th Cir. 2003).

190 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 77:175

ernor Ralph Northam temporarily banned guns on capital

grounds.

100

The protestors sought an injunction on the ban and

made First Amendment arguments in their complaint: “[T]he act

of peaceably and openly carrying firearms. . .is itself a form of pro-

tected speech, particularly when the Rally is specifically intended to

express opinions to public officials through the symbolic act of

bearing arms.”

101

The trial court ignored the First Amendment

claim and denied the injunction,

102

and the Virginia Supreme

Court dismissed the appeal.

103

Gun owners have also unsuccessfully attempted to invoke the

First Amendment’s free exercise clause to protect their right to

carry in traditionally gun-free places. In GeorgiaCarry.Org, Inc. v.

Georgia, the plaintiffs argued that a state restriction on firearms in

places of worship interfered with their free exercise of religion.

104

The court dismissed the claim because there was no evidence that

the law infringed on any “sincerely held religious belief”; personal

preferences regarding the ability to act in self-defense did not suf-

fice to establish First Amendment coverage.

105

The vast majority of guns-as-expression claims have failed, and

perhaps they will continue to do so, notwithstanding the current

trend of First Amendment expansionism. If such a claim were to

succeed, though, it might—like broad takings doctrine—represent

a bit of a mixed bag for gun owners. After all, the “expressive” qual-

ity of gun carrying will not always be a vindication of constitutional

rights; sometimes, it will constitute a tort or even a crime. When the

person carrying the gun is the proverbial “law-abiding citizen,”

106

the communication might be coded as positive—a deterrent to

would-be wrongdoers. But that is purely contingent on the identity

of the parties and their mental states. What about when that “law-

abiding citizen” wrongly perceives another person—or the world as

100. Li, supra note 0, at 2.

101. Complaint at 7-8, Gun Owners of America, Inc. v. Northam, No.

CL20000279-00 (Va. Cir. Ct. Jan. 16, 2020).

102. Gun Owners of America, Inc. v. Northam, No. CL20000279-00, at 2 (Va.

Cir. Ct. Jan. 16, 2020).

103. Gun Owners of America, Inc. v. Northam, No. CL20000279-00 (Va. Jan.

17, 2020).

104. GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1249 (11th Cir. 2012).

Georgia’s statute exempts only licensed individuals who receive prior permission

from security or management personnel and comply with all their directions. Non-

compliance constitutes a misdemeanor. O.C.G.A. § 16-11-127.

105. GeorgiaCarry.Org, Inc., 687 F.3d at 1255.

106. District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (declaring that

the Second Amendment “elevates above all other interests the right of law-abiding,

responsible citizens to use arms in defense of hearth and home”).

2022] CONSTITUTIONAL GUN LITIGATION 191

a whole—to be a threat? In that situation, the same message is be-

ing communicated—”I can hurt or kill you”—but in a way that the

law does not protect. Indeed, the armed individual has quite plausi-

bly committed brandishing, menacing, or even assault.

107

Judicial

recognition of the expressive quality of gun carrying should raise

the stakes in those cases as well.

Consider, too, that some states have passed rules requiring

public universities to permit people to carry guns on campus,

108

despite opposition from administrators, faculty, and students.

109

Three professors from the University of Texas brought a challenge

to Texas’s law, arguing inter alia that it infringed academic freedom

and free expression.

110

The Fifth Circuit found that there was no

harm sufficient to support standing. But if public carry of guns is

doctrinally recognized as expression, the professors’ claim is far

stronger—for if bringing a gun into a classroom can be communi-

cative, then excluding a gun can be as well. Thus, recognizing these

expressive interests has the potential to strengthen claims both for

and against the ability to carry guns in these spaces.

II.

SOME IMPLICATIONS OF POLYCENTRIC GUN

RIGHTS

The litigation story we describe in Part I is still unfolding, and

its future course depends in large part on the Supreme Court’s dis-

position of New York State Rifle & Pistol Association v. Bruen.

111

Section II.A, we discuss the incentives that litigants have in bringing

alternative—that is, non-Second Amendment—constitutional chal-

107. Joseph Blocher, Samuel W. Buell, Jacob D. Charles, & Darrell A.H.

Miller, Pointing Guns, 99

. L. R

1173, 1175 (2021). See also Kimberly Kessler

Ferzan, Taking Aim at Pointing Guns? Start with Citizen’s Arrest, Not Stand Your

Ground, 100

. L. R

. O

NLINE

1, 2 (2021) (arguing inter alia that “the shift in

cultural norms is moving from citizen defense to citizen offense. It is this cultural

norm, and the laws that enable it, that cry for immediate attention.”).

108. Shaundra K. Lewis, Crossfire on Compulsory Campus Carry Laws: When the

First and Second Amendments Collide, 102

OWA

L. R

2109, 2113 (2017).

109.

MILY

EIMAL ET AL

RBAN

NST

., G

UNS ON

OLLEGE

AMPUSES

: S

TU-

DENTS

’

AND

NIVERSITY

FFICIALS

’ P

ERCEPTIONS OF

AMPUS

ARRY

EGISLATION IN

ANSAS

(2019)(“An abundance of research documents the predominantly nega-

tive attitudes of students, faculty, and staff toward laws permitting guns on college

campuses”).

110. Glass v. Paxton, 900 F.3d 233, 237 (5th Cir. 2018).

111. See New York State Rifle & Pistol Ass’n v. Corlett, No. 20-843, 2021 WL

1602643 (U.S. Apr. 26, 2021) (granting certiorari on the question “[w]hether the

State’s denial of petitioners’ applications for concealed-carry licenses for self-de-

fense violated the Second Amendment”).

192 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 77:175

lenges to gun laws, and how those incentives might change after the

Court decides Bruen. In Section II.B, we assess the difficulties that

this polycentric understanding of gun rights poses for citizens who

support gun regulations as a means to protect their own constitu-

tional rights.

A. Litigant Incentives

The frames of constitutional litigation discussed in Part I indi-

cate how gun rights advocates evaluate their litigation options and

how those alternative rights frames compare to the Second Amend-

ment itself. The more interesting point is what such litigation

frames say about the perceived strength of these claims as com-

pared to straight-up Second Amendment claims. Presumably, liti-

gants emphasize the claims that they think have the best chance of

success,

112

which for challengers typically means the claim that will

trigger the most stringent form of scrutiny. So, for example, some

religion claims that might appear to be about free exercise are cast

as free speech (or free association, being a derivative of free

speech), in part because of the strong doctrinal protection ac-

corded to free speech claims.

113

Thus, as Zick notes, “starting in the

1980s, in both their general advocacy and litigation of specific

cases, religious liberty advocates started to abandon the Free Exer-

cise Clause in favor of the Free Speech Clause.”

114

These incentives

became even more clear after Employment Division v. Smith rendered

the Free Exercise Clause a relatively unattractive doctrinal road.

115

It is not hard to imagine a similar story about gun rights and

the Second Amendment. Empirically speaking, the vast majority—

more than 90%—of Second Amendment claims have failed in the

years since Heller.

116

This undoubtedly contributes to the belief,

widespread among gun rights advocates, that the right to keep and

bear arms is being unfairly under-enforced.

117

Indeed, the notion

112. This is not the only conceivable motivation. Some movement litigants,

for example, might “win by losing”—parlaying litigation defeats into other forms

of support.

113. E.g., Masterpiece Cakeshop Ltd. v. Colo. Civ. Rts. Comm’n, 138 S. Ct.

1719, 1721 (2018).

114.

IMOTHY

ICK

, T

YNAMIC

REE

PEECH

LAUSE

: F

REE

PEECH AND ITS

ELATION TO

THER

ONSTITUTIONAL

IGHTS

33 (2018).

115. 494 U.S. 872 (1990) (denying heightened scrutiny for free exercise

claims involving neutral laws of general applicability).

116. Ruben & Blocher, supra note 2, at 1472.

117. For thoughtful arguments in favor of the second class and underenforce-

ment thesis, see David B. Kopel, Data Indicate Second Amendment Underenforce-

ment, 68

UKE

L.J. O

NLINE

79 (2018); George A. Mocsary, A Close Reading of an

2022] CONSTITUTIONAL GUN LITIGATION 193

that the Second Amendment is being treated as a “second class

right” has become the dominant rhetorical claim of many gun

rights advocates.

118

Whether or not that argument is justified—and

we are not convinced that it is

119

—it helps explain why so many gun

rights claims seek shelter in areas of doctrine that are perceived to

be more protective Incidentally, it also helps explain the frequent

calls to borrow doctrines from other areas of constitutional law.

120

This kind of perceived comparative advantage could soon

change, however. The Supreme Court is currently considering New

York State Rifle & Pistol Association v. Bruen,

121

a challenge to New

York’s “good cause” requirement for public carry permits.

122

The

underlying question is whether the right to keep and bear arms ex-

tends outside the home. But there is also a lurking methodological

question: How should gun regulation be evaluated under the Sec-

ond Amendment? The federal courts of appeals have overwhelm-

ingly adopted a two-part framework that first asks whether the

challenged law falls within the scope of the Amendment at all (Hel-

ler indicates that certain categories of law—like those pertaining to

Excellent Distant Reading of Heller in the Courts, 68

UKE

L.J. O

NLINE

41, 43 (2018)

(concluding that data show “evidence of judicial defiance” (footnote omitted)).

118. For a conceptual and empirical overview of the “second class” claim and

its prevalence in briefs and opinions, see Eric Ruben & Joseph Blocher, “Second

Class” Rhetoric, Ideology, and Doctrinal Change, 110

. L.J.

(forthcoming 2022).

119. Ruben & Blocher, supra note 2, at 1475; Adam M. Samaha & Roy Ger-

mano, Is the Second Amendment a Second-Class Right?, 68

UKE

L.J. O

NLINE

57, 59

(2018) (concluding that there are plausible alternative explanations for the data

other than the “second-class” argument); Timothy Zick, The Second Amendment as a

Fundamental Right, 46

ASTINGS

ONST

. L.Q.

621 (2019) (arguing that the Second

Amendment’s treatment compares favorably to that of other constitutional rights

at various stages of their development, and that the available evidence does not

show judicial hostility, resistance, or political ideology).

120. There is a growing literature on such borrowing and intersection in con-

stitutional doctrine. See, e.g., Kerry Abrams & Brandon L. Garrett, Cumulative Con-

stitutional Rights, 97

B.U.L. R

1309, 1309-10 (2017) (discussing “cumulative,”

“hybrid,” and “intersecting” rights); Jennifer E. Laurin, Trawling for Herring: Lessons

in Doctrinal Borrowing and Convergence, 111

OLUM

. L. R

. 670, 674 (2011); Nelson

Tebbe & Robert L. Tsai, Constitutional Borrowing, 108

ICH

. L. R

459, 460

(2010).

For specific discussion of borrowing in the Second Amendment context, see

Jacob D. Charles, Constructing a Constitutional Right: Borrowing and Second Amendment

Design Choices, 99

N.C. L. R

333 (2021).

121. See New York State Rifle & Pistol Ass’n v. Corlett, No. 20-843, 2021 WL

1602643 (U.S. Apr. 26, 2021) (granting certiorari on the question “[w]hether the

State’s denial of petitioners’ applications for concealed-carry licenses for self-de-

fense violated the Second Amendment”).

122. See N.Y. Penal Law § 400.00 (2021). Technically these are permits for

concealed carry, since open carry is generally prohibited in New York.

194 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 77:175

felons, the mentally ill, “dangerous and unusual weapons,” and con-

cealed carrying—do not

123

), and second, if so, whether the law’s

burdens on protected conduct can be justified in light of the gov-

ernmental interests served.

124

Many gun rights advocates argue that this test is under-protec-

tive and should be replaced either with strict scrutiny

125

or—more

likely—a test that would evaluate gun laws based solely on text, his-

tory, and tradition. Under the latter test, a gun regulation’s “histori-

cal or traditional pedigree is both a necessary and sufficient

condition” for its constitutionality.

126

This test is often credited to a

dissenting opinion by then-Judge Brett Kavanaugh,

127

and although

he took pains to emphasize that it would not rule out gun regula-

tion, and that it is not necessary for all contemporary laws to have

exact historical replicas,

128

many believe that it would be more re-

strictive than the existing two-part framework.

129

123. District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008).

124. See Gould v. Morgan, 907 F.3d 659, 668 (1st Cir. 2018); N.Y. State Rifle &

Pistol Ass’n v. Cuomo, 804 F.3d 242, 254 (2d Cir. 2015); United States v. Chovan,

735 F.3d 1127, 1136 (9th Cir. 2013); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d

1244, 1260 n.34 (11th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th

Cir. 2012); Nat’l Rifle Ass’n v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,

700 F.3d 185, 194 (5th Cir. 2012); Ezell v. City of Chicago, 651 F.3d 684, 703–04

(7th Cir. 2011); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010);

United States v. Reese, 627 F.3d 792, 800–01 (10th Cir. 2010); United States v.

Chester, 628 F.3d 673, 680 (4th Cir. 2010).

125. Brief of Plaintiffs-Appellants at 39, Gould v. O’Leary, 907 F.3d 659 (1st

Cir. 2018) (No. 17-2202), 2018 WL 1610774 (“Applying anything less than strict

scrutiny would relegate the Second Amendment to a ‘second-class right.’”); Collo-

quy, McDonald v. Chicago: Which Standard of Scrutiny Should Apply to Gun Control

Laws?, 105

. U. L. R

437, 455 (2011) (comment of Joyce Lee Malcolm)

(“Since fundamental rights are not to be separated into first- and second-class sta-

tus, the strict scrutiny applied to the First Amendment freedom of the press and

freedom of speech should also be applied to Second Amendment rights.”).

126. Jake Charles, The “Text, History, and Tradition” Alternative,

ECOND

HOUGHTS

LOG

(Dec. 5, 2019), https://sites.law.duke.edu/secondthoughts/

2019/12/05/the-text-history-and-tradition-alternative/ [https://perma.cc/55SR-

N8NS].

127. Heller v. District of Columbia, 670 F.3d 1244, 1276 (D.C. Cir. 2011) (Kav-

anaugh, J., dissenting).

128. Id. at 1275 (Kavanaugh, J., dissenting); see also United States v.

Skoein, 614 F.3d 638, 641 (7th Cir. 2010) (en banc) (“[A]lthough the Justices have

not established that any particular statute is valid, we do take from Heller the mes-

sage that exclusions need not mirror limits that were on the books in 1791.”).

129. One of us filed a brief in Bruen advocating the two-part framework over

the text, history, and tradition alternative—not because the former is more forgiv-

ing, but because it is more administrable. See Brief of Second Amendment Law

Professors as Amici Curiae in Support of Neither Party at 8, New York Rifle & Pistol

2022] CONSTITUTIONAL GUN LITIGATION 195

If Bruen does adopt a more stringent test, then the incentives

to try other constitutional arguments would change. And the result

could well be not only increased constitutional litigation, but an

increased emphasis on the Second Amendment itself, rather than

on the Takings Clause or other alternatives.

Substantively, too, a holding that public carry is protected by

the Second Amendment will have ripple effects for many of the

other forms of constitutional argument discussed here. It seems un-

likely that the Court will fully endorse a constitutional right to con-

cealed carry, since the historical evidence clearly does not support

it.

130

But if the Court were to do so, then there would be a much

stronger claim for a “liberty” interest under due process in the per-

mitting cases discussed above; that is, litigants seeking due process

protection from permit denials could more easily satisfy the thresh-

old requirement that their liberty has been deprived.

131

Or consider what might happen to the expressive conduct

claims discussed in Section I.C. If the Court recognizes a broad

right to public carry under the Second Amendment, then perhaps

there will be less need to argue for the same right being protected

as free expression. And yet there might still be some interesting

legal space between the two claims. The right to keep and bear

arms, for example, does not extend into “sensitive places such as

schools and government buildings.”

132

Presumably that exception

would persist even if public carry were recognized. But the First

Amendment does not contain a “sensitive places” exception, so

there might still be some benefit to pursuing the free expression

claim. For that matter, such parallel tracks of litigation might ulti-

mately encourage convergence between the rationale and even sub-

stantive outcomes of “sensitive place” litigation under the Second

Amendment and “nonpublic forum”

133

litigation under the First.

We could speculate further on other possible changes, but

these examples serve to illustrate and emphasize the possible ripple

effects of Second Amendment doctrine on other areas of constitu-

tional law. Scholars have, as we noted earlier, begun to explore

those ripple effects with regard to statutory guarantees—not simply

Ass’n v. Bruen, (No. 20-843), 2021 WL 3144391 (brief of Joseph Blocher, Darrell

A.H. Miller, and Eric Ruben).

130. See Meltzer, supra note 2322, at 1500 (explaining that concealed carry

has long been regulated more stringently than open carry).

131. See supra note 24 and sources cited therein.

132. Heller, 554 U.S. at 626.

133. Cornelius v. NAACP Legal Def. and Educ. Fund, 473 U.S. 788, 796-97

(1985).

196 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 77:175

deregulation, but pro-rights regulation.

134

The impact on other ar-

eas of constitutional law must also be considered.

B. Equality, and Other Rights-holders

Perhaps Bruen will herald more Second Amendment cases—

both as an absolute matter and as a proportion of constitutional

gun litigation. But what about possible growth in other constitu-

tional gun claims? Our discussion has largely set aside, for example,

perhaps the most frequent and predictable claims—those deriving

from the Fourth Amendment and other criminal procedure rights.

We do so not because they are unimportant, but because they are

already well-recognized.

135

A less recognized but potentially growing area of constitutional

gun litigation involves claims that echo in equal protection. Here,

too, we take our signals somewhat from gun rights rhetoric which,

especially in recent years, has emphasized the racist origins of many

historical gun laws.

136

The relationship between racism and gun

regulation is not new, of course, and historians and scholars have

been exploring and illuminating it for decades.

137

But the sugges-

tion that this racist history should call modern gun regulations into

constitutional question is increasingly prominent—including in

many of the amicus briefs in Bruen.

138

Interestingly, though, this history of racist enforcement tends

to be folded into Second Amendment arguments, rather than equal

protection claims. In that sense, it cuts in a different direction than

the examples we have discussed above—but perhaps it is explicable

for the same reason: equal protection claims are perceived to be

even weaker than Second Amendment claims, given the current

state of doctrine. And indeed, a review of cases in which equal pro-

134. Charles, supra note 7.

135. See supra note 12 and sources cited therein.

136. See, e.g., Justin Aimonetti & Christian Talley, Race, Ramos, and the Second

Amendment Standard of Review, 107

. L. R

. O

NLINE

193, 219 (2021).

137. Among the foundational early work is Robert J. Cottrol & Raymond T.

Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80

L.J.

309 (1991).

138. See, e.g., Brief of Black Guns Matter et al. as Amici Curiae Supporting

Petitioners, New York State Rifle & Pistol Ass’n v. Bruen, No. 20-843 (U.S. filed Jul.

20, 2021); Brief of Italo-American Jurist and Attorneys as Amici Curiae Supporting

Petitioners, New York State Rifle & Pistol Ass’n v. Bruen, No. 20-843 (U.S. filed Jul.

15, 2021).

2022] CONSTITUTIONAL GUN LITIGATION 197

tection claims have been advanced indicates that they face a tough

road.

139

Gun-control-is-racist arguments invoke equality, and—we have

suggested—might actually be best understood and evaluated as

equal protection arguments. But they are not the only form of

equality argument and rhetoric beginning to take root in the gun

debate. Supporters of gun regulation, too, have increasingly begun

to identify their own interests in constitutional terms. Some invoke

the right to life (hence “March for Our Lives”) or the right not to

be shot.

140

Others point to their own equal rights to peaceably as-

semble, speak, learn, worship, and vote without fear of armed vio-

lence or intimidation by others.

141

As a matter of litigation, there are some obvious obstacles to

making a direct constitutional argument—whether from due pro-

cess or equal protection—for gun regulation. The state action re-

quirement is perhaps the biggest one,

142

though as we have shown

above there are a surprising number of direct state actions that do

arguably violate constitutional rights in the course of furthering

some gun owners’ interests.

143

But such direct claims are not the only way for such claims of

constitutional equality to be litigated. As one of us has argued in

recent work with Reva Siegel, the government has a valid interest in

regulating guns not only to keep citizens alive and free from physi-

cal harm, but also to protect their equal claims to citizenship and

the exercise of constitutional rights free from terror and intimida-

tion.

144

That principle is clear from the common law history of gun

regulation and is specifically incorporated in Part III of the Heller

139. See, e.g., Drummond v. Twp. of Robinson, 784 F. App’x 82, 83–84 (3d

Cir. 2019) (quickly dismissing an equal protection argument against gun-related

zoning).

140. Jonathan Lowy & Kelly Sampson, The Right Not to Be Shot: Public Safety,

Private Guns, and the Constellation of Constitutional Liberties, 14

. J.L. & P

. P

’

187 (2016).

141. Blocher & Siegel, supra note 15.

142. See, e.g., DeShaney v. Winnebago Cty. Dep’t. of Soc. Services., 489 U.S.

189, 196–97 (1989); Town of Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005).

143. See supra notes <CITE _Ref82436036“>-88 and accompanying text

(describing apparent viability of takings claims against bring-your-gun-to-work

laws).

144. Blocher & Siegel, supra note 15. The argument has begun to appear in

briefs. See, e.g., Brief of Survivors of the 101 California Shooting and Giffords Law

Center to Prevent Gun Violence as Amici Curiae in Support of Appellee and Affirm-

ance at 22, Rupp v. Becerra, No. 19-56004 (9th Cir. filed Jun. 2, 2020) (arguing for

the constitutionality of California’s assault weapons prohibition in part because

“[g]overnments also have a significant interest in securing for their communities

198 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 77:175

opinion. In that respect, it is nothing new. But like the other devel-

opments we have tried to emphasize in this short Article, it deserves

further attention from lawmakers, judges, advocates, and scholars.

CONCLUSION

Our goals in this Article have been both descriptive and con-

ceptual: To enumerate and illustrate some of the constitutional

rights litigation involving guns that is happening outside of the Sec-

ond Amendment, and to explore the implications of that litigation

and what it might mean for our understanding of gun rights and

regulation going forward. The latter goal complicates the seeming

simplicity of the first. The picture that emerges is about more than

rights on one side and government intervention on the other; it is

the polycentric, complex interaction of rights and interests that in-

creasingly characterizes US constitutional law.

145

As the Second

Amendment matures, both as a matter of law and a focus of scholar-

ship, these are the kinds of challenges that judges and scholars

must confront.

the ability to engage in public and political life without the fear wrought by partic-

ularly intimidating weapons—those that are used to intimidate while they kill”).

145. Jamal Greene, Rights as Trumps?, 132

ARV

. L. R

28, 34 (2018).