The Volokh Conspiracy

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The "Essential" Second Amendment—Now Published in Texas Review of Law & Politics

A study of the Second Amendment during the pandemic cases.


The Texas Review of Law & Politics has published my new article, The "Essential" Second Amendment. Here is the abstract:

Constitutional litigation over the Second Amendment has followed a familiar pattern. In the decade since Heller and McDonald, countless cases have turned on a foundational question: how much danger does the weapon pose? But in 2020, the courts were suddenly presented with a novel constitutional question: how much danger does obtaining the weapon pose? During the COVID-19 pandemic, state and local governments enacted complete prohibitions on the acquisition of firearms. Willing buyers were ready to comply with all extant gun-control regulations. But these governments shuttered firearm stores completely. These policies were adopted not to stop the sale of guns but to stop the spread of the novel coronavirus. In short order, these governments deemed the Second Amendment as "non-essential." The ability to purchase firearms was treated no differently than the ability to purchase other conveniences. Still, the practices in the overwhelming majority of the states reflected what should be a basic tenet of constitutional law: enumerated fundamental constitutional rights must be "essential" rights. And the state cannot impose an absolute and arbitrary prohibition on the exercise of the essential Second Amendment.

This Article proceeds in four parts. Part I considers what the word "essential" really means. Part II undertakes a fifty-state survey of restrictions imposed on the right to keep and bear arms during the pandemic. Part III analyzes another metric to decide whether the right to keep and bear arms is essential: the people. During the COVID-19 pandemic, gun sales surged. In times of civil unrest, millions of Americans viewed the acquisition of firearms as essential. Part IV revisits two district court decisions that upheld restrictions on the right to keep and bear arms during the pandemic. These cases followed the framework Chief Justice Roberts established in South Bay Pentecostal Church v. Newsom. These courts should have followed the framework Justice Kavanaugh established in Calvary Chapel v. Sisolak and that was formally adopted by the Court in Roman Catholic Diocese of Brooklyn v. Cuomo. If any businesses are treated as essential, firearm stores must presumptively be afforded that same status. The right to keep and bear arms ought to be afforded "most-favored status." And the state must justify its decision to deprive people of their right to keep and bear arms.

The COVID-19 pandemic has illustrated once again that in times of crisis, the government will forcibly separate the people and their arms. The people must be vigilant to protect this essential right.

I began writing this piece shortly after the pandemic began. More than two years later, some of these cases are still pending in the courts.

I also commend the other articles in this excellent volume of TROLP, including a very timely article by Alyson M. Cox and O. Carter Snead who reject an incrementalist approach to overturning Roe.