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Dangerous and Unusual: How Heller’s Ahistorical Assumption Violates the Founders’ Original Intent
No full textWhen the U.S. Supreme Court ended its generational silence on the Second Amendment in District of Columbia v. Heller, the Court held that “a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society” is “invalid.” In so holding, the Court suggested that the Constitution protects only those weapons “in common use at the time,” a limitation thought to be “fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” The Court defined none of these terms then, and it has not since.
Over a decade of constitutional infidelity ensued. Following Heller’s minimal discussion of the scope of protected “Arms,” lower courts have posited that so-called “dangerous and unusual weapons” may be banned based on perceived dangerousness or rarity—an approach that maligns politically controversial firearms as being too “militaristic” for “civilians” and absolves the government of its historical burden under New York State Rifle & Pistol Ass’n v. Bruen. These thinly veiled interest-balancing opinions depart from constitutional text and historical understanding.
This Article seeks to correct the historical record and articulate a more principled approach to interpreting the Second Amendment. First, in keeping with Heller, if a weapon is “bearable,” then the Constitution presumptively protects it, and proof of “common use” is unnecessary to proceed to historical analysis. Second, the Founders never regulated mere ownership or possession of “dangerous and unusual weapons.” Instead, Founding-Era regulations only proscribed offensive conduct with these weapons when carried openly in public. These regulations therefore cannot support limitations on ownership or possession of bearable weapons within the home or without public disturbance, as such reasoning would contravene Bruen’s analogical guidance. Third, historical evidence suggests that “dangerous and/or unusual” was a legal term of art describing the unjustified and disproportionate use of force, not the dangerousness or rarity of weapons. And fourth, whatever the historical scope of “dangerous and unusual weapons” may be, the term did not contemplate “military” weapons. Indeed, as contemporaneous writings make clear, the Founders sought to guarantee firepower parity between the individual citizen and the government infantryman, so-called “military” arms included
The Waiting Is the Hardest Part: The Constitutionality of Firearm Waiting Periods
No full textThis Article examines the constitutionality of firearm waiting period laws through the lens of the Supreme Court’s evolving Second Amendment jurisprudence. Although such laws are frequently defended as prudent public safety measures, their validity turns not on legislative purpose but on constitutional principle, particularly as framed in District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen.
Under those decisions, the scope of the Second Amendment is determined not by judicial balancing of contemporary interests, but by reference to the Nation’s historical tradition of firearm regulation. The Article surveys that tradition and finds no meaningful analogue to modern waiting period laws in the Founding Era or during Reconstruction. Rather, the historical record reflects an understanding of the right to keep and bear arms as encompassing immediate and unencumbered possession by lawful citizens.
The Article addresses and ultimately rejects two primary categories of historical analogues offered in support of waiting periods: regulations involving temporary disarmament (such as those applied to intoxicated individuals), and early licensing or registration schemes. In both instances, the Article demonstrates that the analogies are either inapposite or rooted in practices that lack constitutional legitimacy.
It further contends that the Second Amendment necessarily protects the acquisition of firearms as a logical predicate to their possession. Drawing upon First Amendment doctrine, the Article analogizes to those cases recognizing the right to access books, newspapers, or information as essential to the exercise of free speech.
While public safety remains a legitimate and important governmental objective, constitutional rights do not yield to broad legislative generalizations or modern policy intuitions. Where the Constitution secures an individual right, and the government fails to demonstrate a consistent and representative historical tradition to justify its regulation, the right must prevail.
This Article concludes that mandatory waiting periods impose a categorical burden on the exercise of the Second Amendment without sufficient historical foundation, and are therefore constitutionally infirm under the standard articulated in Bruen
Grading Legal Research
No full textLaw school grading practices often conflict with legal research instruction goals. Small class sizes render norm-referenced (curved) grading unreliable, and the emphasis on ranking students detracts from learning essential skills. Drawing on scholarship on legal education and other disciplines, this article examines several grading approaches that may better serve students and instructors, including criteria-referenced, specification-based, and equitable grading systems. It offers practical suggestions for improving grading practices, such as working with colleagues on assessment design, being intentional about grading formative work, and using anonymous grading. The article concludes with a call for more discussion about grading in legal research courses