PUBLISHED:December 05, 2019

Duke Law Second Amendment experts front and center as Supreme Court considers gun rights


National media seek out Professors Blocher and Miller for expert commentary on the constitutionality of states’ gun regulations as Court takes up potential “blockbuster” case

Duke Law Second Amendment scholars helped inform the dialogue surrounding the first gun rights case to be considered by the Supreme Court in nearly a decade – and one of the most closely-watched cases in the Court’s October term.

Prior to oral arguments Dec. 2 in New York State Rifle & Pistol Association Inc. v. City of New York, New York, Professors Joseph Blocher and Darrell A. H. Miller were called on by over a dozen media outlets including The New York Times, NPR, USA Today, and MSNBC for expert analysis and commentary on issues including the constitutional merits of the case, other gun rights cases in the pipeline, and how the shifting ideological makeup of the Court has influenced which cases it will hear. Blocher, the Lanty L. Smith ’67 Professor of Law, and Miller, the Melvin G. Shimm Professor of Law, co-direct the Duke Center on Firearms Law, along with Executive Director Jake Charles '13.

“One thing that gun rights advocates and litigators have been wanting for a long time is a clear statement from the Supreme Court that the right to keep and bear arms extends past your front door, and that’s a question the Court didn’t clearly answer in D.C. v. Heller,” Blocher said during a Dec. 3 appearance on the public radio program On Point.

New York State Rifle & Pistol is the first major gun rights case the Court has agreed to hear since its landmark 2008 ruling in District of Columbia v. Heller, which held that the Second Amendment includes an individual right to have handguns in one’s home for private purposes such as self-defense, and McDonald v. City of Chicago, the 2010 case that said state and local laws must respect that right. Blocher and Miller filed an amicus brief in support of neither side in the New York case, for which a decision is expected next summer, with Eric Ruben, now a professor of law at SMU Dedman School of Law.

The case was brought as a challenge to a New York City limitation on the transport of firearms for holders of a specific type of gun license called a premises license. However, the city repealed the rule last summer and the state passed a law ensuring it could not be re-enacted, thereby giving the plaintiffs the relief they had requested. As Blocher noted, during questioning the four liberal justices appeared to consider the case moot because the New York rule is no longer extant.

“This would be a strange case in which to go big,” he told USA Today, “yet the stakes going forward are potentially huge.”

If five justices agree to dismiss the case for mootness and decline to rule on its merits, little will be revealed about the Court’s thinking on the Second Amendment except through dissenting opinions, he added. However, the Court could decide to address the issues by taking up another gun rights case. On its blog, Second Thoughts, the Center for Firearms Law has been closely tracking the progress through the lower courts of other Second Amendment challenges to states’ gun regulations.

“I think it’s fair to say that with the new staffing on the court, including Justice (Neil) Gorsuch and Justice (Brett) Kavanaugh, the conservative wing of the Court has been looking to clarify exactly what the Second Amendment is and expand its holding beyond the core holding of Heller,” Miller said during a Dec. 2 interview on Southern California Public Radio.

“Even if this case does go down as being moot and kicked to the curb, it’s quite likely that there are plenty of other cases in the pipeline that the Court will grant cert on.”

Urging the Court to stay the course on doctrine

At stake is a potential change in the way state and local gun laws are evaluated for constitutionality. In Heller the Court did not make a clear statement about gun rights outside the home, and in more than 1,000 cases since then lower courts have upheld a two-step test for adjudicating Second Amendment claims. In a post on SCOTUSblog, Blocher and Ruben argued that this test should not be thrown out and replaced with an approach favored by Kavanaugh, who took the bench in October 2018.

“In this case or another, which test [the Court] adopts will have a lot to do with which laws remain on the books,” Blocher told On Point. “The current test in the federal courts of appeal allows for consideration of the contemporary effectiveness of those laws. But an alternative test — one that was championed by then-Judge Kavanaugh — would look solely to text, history, and tradition for answers about whether gun laws are constitutional, and that would be a really radical change.”

Blocher and Miller established the Center for Firearms Law in 2018 to advance non-partisan scholarship about the Second Amendment and serve as clearinghouse for information about gun rights and regulation. Its launch coincided with publication of their book, The Positive Second Amendment: Rights, Regulation, and the Future of Heller (Cambridge, Sept. 2018), which aims to calm the often emotionally charged conversation around the Second Amendment and advance constructive, constitutionally grounded, and tractable discussions on gun policy by providing a framework for understanding the substance and limits of the right to keep and bear arms. Earlier this year the book was named to The Green Bag’s influential annual list of “Exemplary Legal Writing.”

The center also hosts the Repository of Historical Gun Laws, a free online database of gun regulations stretching from medieval England and the colonial era to the mid-20th century in the United States and a resource that allows for the correction of misassumptions about the historical place of guns in American culture.

“History is not as clear in favor of broad gun rights as I think many gun rights advocates want to believe,” Blocher said in response to an On Point caller who nostalgically referred to a supposed open carry “frontier justice” ethos of the Old West.

“Gun regulations, especially in famous gun havens like Dodge City and Tombstone, Arizona, were absolutely stricter than anything we have in any United States city today. You couldn’t legally carry a gun into either of those cities. So if you look to history you’ll find lots of support for gun regulation.”