THE SECOND AMENDMENT, THE LANDSCAPE FOR EFFECTIVE GUN CONTROL, AND HOW WE GOT HERE James B. Astrachan University of Baltimore School of Law Fall 2017 Course: Instructor: LAW 795.522 THE SECOND AMENDMENT, THE LANDSCAPE FOR EFFECTIVE GUN CONTROL, AND HOW WE GOT HERE James B. Astrachan, Esq. jastrachan@agtlawyers.com 410 783 3520 Astrachan Gunst Thomas, P.C. 217 E. Redwood Street Suite 2100 Baltimore, Maryland 21202 Days/Time: This class meets weekly at the University Of Baltimore School Of Law on Mondays from 4:45 pm to 7:35 pm, with the exception of holidays or cancellations. Location: Room assignments are available through MyUB. Course Description: This course delves into the Second Amendment and the landmark United States Supreme Court decision in District of Columbia v. Heller. To understand Heller, this course will discuss events leading up to the Bill of Rights that influenced the adoption of the Second Amendment. Gun control in the United States from colonial times to the present will also be examined, as will the effect of race on gun control. Course Materials: Handouts may be provided periodically in class. Familiarity with the following materials is helpful: 1. Bill of Rights, The Second Amendment of the United States Constitution (Required Reading) 2. Gunfight: The Battle Over the Right to Bear Arms in America, Adam Winkler 3. Negroes and the Gun: The Black Tradition of Arms, Nicholas Johnson 4. A Modern Historiography of the Second Amendment, Don B. Kates (Required Reading) 5. The Embarrassing Second Amendment, Sanford Levinson (Required Reading) Student Learning Outcomes: The student will learn from this course the constitutional scope of permissible federal and state regulation of firearms, how we arrived at this point, and where it is likely the law will evolve to. Grade: The basis for the grade will be an examination that may be a mix of essay and multiple choice questions or all multiple choice questions. Class participation, if exemplary, might account for five percent of the grade. Course Expectations:
American Bar Association Standards for Law Schools establish guidelines for the amount of work students should expect to complete for each credit earned. Students should expect approximately one hour of classroom instruction and two hours of out of class work for each credit earned in a class, or an equivalent amount of work for other academic activities, such as simulations, externships, clinical supervision, co curricular activities, and other academic work leading to the award of credit hours. ARTICULATE ANY ADDITIONAL EXPECTATIONS FOR CLASS PREPARATION, PARTICIPATION, AND PROFESSIONALISM (e.g., You are expected to complete all reading assignments before class and to participate consistently in class discussion to demonstrate that you have read and reflected on the issues raised in the assignment.) Attendance: Class attendance is a primary obligation of each student whose right to continued enrollment in the course and to take the examination is conditioned upon a record of attendance satisfactory to the professor. A student who exceeds the maximum allowed absences (generally 20% of class sessions) as illustrated below may be compelled to withdraw from the course, or may be barred from sitting for the final exam. Students who are forced to withdraw for exceeding the allowed absences may receive a grade of FA (failure due to excessive absence). This policy is consistent with American Bar Association Standards for Law Schools. Regular Semester Hours Credit Hours Meetings Per Week 1 2 2 2 absences 5 absences 3 2 absences 5 absences 4 5 absences Attendance is mandatory. Internet or other network access is prohibited during class. If I see you looking down and smiling, I will know it s not due to something I said. Audio or video recording of classes is permitted, but is the sole responsibility of interested students. Please try to be in your seat when class begins. Course Website: IF YOU USE A COURSE WEBSITE, PROVIDE INFORMATION ABOUT THE SITE (e.g., This course has a TWEN page that links to this syllabus, announcements, the class assignments, and other class materials. You are responsible for self enrolling in the TWEN page and for checking it regularly for course information.) Computers: Students may/may not use laptop computers for class related purposes. Class Cancellation: If the instructor must cancel a class, notices will be sent to students via email and posted on the classroom door. If there is inclement weather, students should visit the University of Baltimore web site or call the University's Snow Closing Line at (410) 837 4201. If the University is open, students should presume that classes are running on the normal schedule. Academic Integrity: Students are obligated to refrain from acts that they know or, under the circumstances, have reason to know will impair the academic integrity of the University and/or School of Law. Violations of academic integrity include, but are not limited to: cheating, plagiarism, misuse of materials, inappropriate communication about exams, use of unauthorized materials and technology, misrepresentation of any academic matter, including attendance, and impeding the Honor Code process. The School of Law Honor Code and information about the process is available at http://law.ubalt.edu/academics/policiesandprocedures/honor_code/. Title IX Sexual Misconduct and Nondiscrimination Policy:
The University of Baltimore s Sexual Misconduct and Nondiscrimination policy is compliant with Federal laws prohibiting discrimination. Title IX requires that faculty, student employees and staff members report to the university any known, learned or rumored incidents of sex discrimination, including sexual harassment, sexual misconduct, stalking on the basis of sex, dating/intimate partner violence or sexual exploitation and/or related experiences or incidents. Policies and procedures related to Title IX and UB s nondiscrimination policies can be found at: http://www.ubalt.edu/titleix. Disability Policy: If you are a student with a documented disability who requires an academic accommodation, please contact Leslie Metzger, Director of Student Services, at 410 837 5623 or lmetzger@ubalt.edu. Syllabus: Class 1: Framing of the Questions: Originalism What is it, and how did it define the Court s decision in Heller? A guest lecture by William Reynolds, Jacob A. France Professor Emeritus of Judicial Process, University of Maryland Law School. Do guns enjoy constitutional protection? If yes, why? If gun are protected, may they be regulated? If they are subject to regulation, to what extent? Understanding the classes of guns. Those protected; those not; various laws and, those whose classification as protected is in flux. The Second Amendment: What is the Bill of Rights, and how does the Second Amendment read? The playing field; Interpretations of the Second Amendment, A Z. Class 2: Developing an Understanding of the Supreme Courts D.C. v. Heller Interpretation of the Second Amendment The early state and colonial constitutions: What do they say about guns and defense? An introduction to Heller, and its background; the militia versus individual right theories to bear arms. The influence of the National Rifle Association over the 2000 Presidential election and the 2001 United States government announced individual rights (versus, collective) theory of the Second Amendment. Class 3: Developing an Understanding of the Supreme Courts D.C. v. Heller Interpretation of the Second Amendment (continued)
United States v. Emerson, 270 F.3d 203 (5 th Cir. 2001) National Firearms Act (1934) United States v. Miller, 307 U.S. 174 (1939) More on Heller: Judge Sullivan s dismissal in the District Court for lack of standing; Judge Silberman s ruling against the District of Columbia in the District of Columbia Circuit Court of Appeals declaring the District of Columbia ban unconstitutional. Was there a real basis for Judge Sullivan s ruling; have all Courts misconstrued Miller? The Amici. The Role of the United States Solicitor General in Heller; threading the needle between permissible regulations under the National Firearms Act (1934) and the opined right of the United States Attorney General that the right to bear arms belongs to the individual. Class 4: Examining the Arguments in Heller: The Appellant; The Appellee; The United States. The Holding; majority and dissenting opinions. Dangerous and Unusual Weapons ; their constitutional ban. What is protected under the Second Amendment; what is not; what is in flux. Standard of judicial review in the Fourth Circuit via; Kolbe v. Hogan (née, O Malley) remanded to apply strict scrutiny appeal en banc reversed en banc? Why? Class 5: Heller Arguments (continued). The meaning of Right of the People, the Second Amendment s prefatory and operative clauses do they mesh or clash. Dissent Was self defense intended to be enshrined in the Bill of Rights? Why the right was unitary. Criticism of Heller from conservative quarters: Judge Richard Posner and Professor Nelson Lund. Was Scalia s decision adequately supported? Stare Decisis; United States v. Miller (What did Miller hold regarding Militia v. individual rights). Presser v. Illinois, 116 U.S. 252 (1886)
Class 6: Historic Gun Control in the United States, pre Heller. The English influence on the Bill of Rights; James II and the Militia Act of 1664; the Game Act of 1671 The English Bill of Rights (1689) and the right to bear arms for defense The right of the government to control the right. Influence of the English Bill of Rights on our Bill of Rights. The Militia; founders early writings on the Second Amendment. John Adams, A Defense of the Constitution of the United States of America (1787). Other early impacts on the Heller decision. Class 7: Second Amendment Scholarship; What others have written. Handgun Prohibition and the Original Meaning of the Second Amendment, The 82 Mich. L. Rev. 204 273 (1983). The Embarrassing Second Amendment, Yale Law Journal, Volume 99, pp. 637 659. A Liberal Case for the Individual Right to Own Guns Helps Sway the Federal Judiciary, New York Times May 7, 2007. Is there a constitutional right to high capacity magazines and modern sporting rifles a/k/a assault rifles? Class 8: Second Amendment Scholarship, continued. Early restrictions in America; Rhode Island and New Hampshire; gun ownership surveys; outlaw of Matchlocks (Massachusetts and Connecticut); ban on ownership by Catholics (Maryland) and other early state or colonial restrictions. The Wild West (late 19 th Century) bans on concealed and open carry; Marshall Dillon versus Marshal Earp; Richard Shenkman, Legends, Lies and Cherished Myths of American History. Southern United States bans all concealed carry; the rest of the country follows by the early 20 th century. Why? Class 9: Modern Regulation of Firearms Current state laws on concealed carry; shall issue no right reasonable cause. Does Heller s language permit such regulation? Does Heller permit abolishment of guns? Certain categories? Does the National Firearms Act of 1934 survive Heller? Crime, Deterrence, and Right to Carry Concealed Handguns, Journal of Legal Studies, Vol. 26, No. 1, 1997; Shooting Down the More Guns, Less Crime Hypothesis, 55 Stanford Law Review 1193 1312 (2003). Class 10: Modern Regulation of Firearms (continued)
The Effect of Heller on the National Firearms Act (1934) and the government s right to control/regulate arms (continued). The early 20 th Century anti gun movement; Uniform Firearms Act. State adoption. The challenge to the National Firearms Act (1934) United States v. Miller; How Roosevelt approached gun regulation through the power to tax. Class 11: More Judicial Review Heller breaks from Miller?; Does Miller really recognize only a Militia right? Or is McReynolds merely rambling. Scrutiny strict; Intermediate or rational basis? Kolbe v. O Malley; New York State Rifle & Pistol Association, Inc. v. Cuomo, 990 F.Supp.2d 349 (W.D.N.Y. 2013). Other decisions affecting recent state laws intended to regulate. Class 12: Racial Issues and Gun Control Racial issues with gun control; a very rich history of African American gun ownership; Why does the NAACP want to eliminate guns? Why does C.O.R.E. support pro Second Amendment litigation? How did the Black Panther Party create a culture of gun regulation that swept out of California to affect the rest of the Country? Class 13: Any Solutions? Does the United States have a gun problem? If so, define the problem. What solutions are there to the problem?