Loading...
The Second Amendment on Board: Public and Private Historical Traditions of Firearm Regulation
Hochman, Joshua
Hochman, Joshua
Files
Loading...
Hochman Third Draft.pdf
Adobe PDF, 553.22 KB
Abstract
In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme
Court reaffirmed that laws prohibiting the carrying of firearms in sensitive
places were presumptively constitutional. Since Bruen, several states and the
District of Columbia have defended their sensitive-place laws by analogizing
to historical statutes regulating firearms in other places, like schools and
government buildings. Many judges, scholars, and litigants appear to have
assumed that only statutes can count as evidence of the nation’s historical
tradition of firearm regulation.
This Note is the first expansive account since Bruen to challenge this
assumption. It argues that courts should consider sources of analogical
precedent outside of formal lawmaking when applying the Court’s Second
Amendment jurisprudence. Taking public transportation as a case study, the
Note surveys rules and regulations promulgated by railroad corporations in
the nineteenth century and argues that these sources reveal an historical
tradition of regulating firearm carriage on public transportation.
Bruen expressly permits courts to engage in more nuanced analogical
reasoning when dealing with unprecedented concerns or dramatic changes.
One such change is the shift in state capacity that has placed sites that were
previously privately or quasi-publicly operated before the twentieth century
under public control in the twenty-first century. As in the case of schools,
which the Court has already deemed sensitive, a substantial portion of the
nation’s transportation infrastructure in the nineteenth century was not
entirely publicly owned and operated. This case study instructs that courts
and litigants can best honor Bruen’s history-based test by considering all of
the nation’s history of firearm regulation.