New Textbook: Firearms Law and the Second Amendment

Regulation, Rights, and Policy

If you are interested in arms law, you might enjoy the new textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy. The third edition, from Aspen Publishing, came out several months ago. It is coauthored by Nicholas J. Johnson (Fordham), George A. Mocsary (Wyoming), E. Gregory Wallace (Campbell), Donald Kilmer (Lincoln), and me (Denver).

Our inspiration for the textbook, whose first edition appeared in 2012, was Rutgers law professor Ruth Bader Ginsburg and her textbook Constitutional Aspects of Sex Discrimination. What law students learn depends on what professors can teach. Teaching depends on what textbooks exist. Although some professors do collect or write their own materials for class, most of what gets taught in law school is from textbooks. Only if a textbook on women's rights existed could women's rights be broadly studied in law school.

By 1971 there were professors who were interested in women's rights but were far from expert on the subject. They could teach it only if someone else wrote a textbook. They had neither the time nor inclination to determine which cases and materials were most important, collect and edit them, and then organize them into an orderly narrative. So Ginsburg did it all for them. She also provided her own analysis.

Now, the same process is happening for the Second Amendment. Since 2012, Firearms Law has been spurring the creation of Second Amendment classes at law schools; every year more law students learn how to incorporate the right to keep and bear arms into their legal practice. Some of those students will become criminal defense lawyers and others prosecutors. Some will become business and regulation lawyers who represent retailers or manufacturers, and others will work for regulatory agencies. More than a few will eventually become lawmakers, judges, or other leading government officers. Unlike in past generations, the new generation of lawyers includes members who are already well-educated about the right to keep and bear arms and gun control laws.

The success of Firearm Regulation and the Second Amendment has spurred two other publishers of law school textbooks to produce their own entries into what has become the growing field of Second Amendment education. One good book is Guns and the Law: Cases, Problems, and Explanation, by Andrew J. McClurg (Memphis) and Brannon P. Denning (Samford) (Carolina Academic Press 2016). The 592 page book contains ten chapters with pro/con materials on various topics. Back in 2002, McClurg, Denning, and I teamed up to write Gun Control and Gun Rights: A Reader and Guide (NYU Press), which at the time was the first book on firearms policy written for use in higher education.

The other textbook, forthcoming in 2023 from West, is The Second Amendment: Gun Rights and Regulation, by Joseph Blocher (Duke), Darrell A.H. Miller (Duke), and Jacob Charles (Pepperdine). Unlike the Firearms Law textbook, this one will not delve deep into legal history, but will instead (like six chapters in Firearms Law) examine the post-Heller legal landscape. I'm sure that a book from these three excellent scholars will be good; in our own textbook, we cite them 14 times.

Things have come a long way since Sanford Levinson observed in 1989 that the legal academy considered it "embarrassing" to think seriously about the Second Amendment. Sanford Levinson, The Embarrassing Second Amendment, 99 Yale Law Journal 637 (1989).

The Johnson et al. Firearms Law book is for readers like the Buddhist monk who walked into a sandwich shop and said, "Make me one with everything."

Firearms Law runs 2,243 pages and costs $298. However, in terms of how many words you get per dollar, it's a bargain!

Firearms Law was written for more than just the law school audience. The style is accessible to the general intelligent reader, and the textbook is also a treatise of arms law and history, from ancient times to the present. As such, it has been useful to the courts. Judge Brett Kavanaugh, when he served on the D.C. Circuit Court of Appeals, cited the textbook, as did Judge Thomas Hardiman of the Third Circuit. The Illinois Supreme Court has cited the textbook twice. Much of the book is on the cutting edge of modern legal analysis and of legal history.

To prepare students for practice, Firearms Law extensively covers the federal gun control statutes, such as the Gun Control Act and the National Firearms Act, as well as state laws.

Some of Firearms Law is available for free. The printed book is 16 chapters, and those are supplemented by 7 online chapters, which are available on the public Internet, at the book's website. http://firearmregulation.org/. These free online chapters cover issues of identity and status (e.g., race, gender, disability, sexual orientation, marijuana use, and veteran status); other nations and international issues (ancient, modern, and in-between), and an "In-Depth Explanation of Firearms and Ammunition." The printed book has a coupon for access for all 23 chapters as an integrated e-book, usable by readers who have academic email accounts.

And that's not all! Also free online for everyone is chapter 3 from the printed textbook, on colonial America. Did you know that in the English-speaking world, the first written guarantees of the right to arms were the colonial charters of Virginia in 1606 and New England in 1620? Neither did anyone else until we found out, and put the history into Firearms Law.

While the printed book is almost entirely about the United States, except for a chapter on United Kingdom history, the online chapters allow readers to explore arms law and policy the rest of the world, from ancient times to the present. The international chapters cover global and regional treaties, the United Nations, national constitutions, the classical founders of international law such as Pufendorf and Grotius, and comparative social science. (Social science about arms in the U.S. is even-handedly summarized in chapter 1 of the printed book.) The online chapters include case studies on Armenia, Australia, Canada, the Czech Republic, Ghana, the Holocaust, Japan, Kenya, Mexico, South Africa, Switzerland, Thailand, the United Kingdom, and Venezuela.

China is examined in great detail. Online chapter 21, Antecedents of the Second Amendment, starts with Confucius, Lao Tzu, Mencius, and their successors. The Comparative Law chapter includes 10 pages on modern Chinese arms law, and a hundred-page study of the effects of various arms policies in China and Tibet during the reign of Mao Zedong.

Firearms Law pays close attention to material culture, and how changes in arms technology have influenced arms law and policy. The technological evolution is integrated into the historical and modern chapters of the printed book, and described in depth in concluding Chapter 23, "The Evolution of Firearms Technology from the Sixteenth Century to the Twenty-First Century."

In words of Faber College founder Emil Faber (from the movie Animal House), "Knowledge is good." We hope Firearms Law and the Second Amendment will increase knowledge, and thereby help legal education and the general public progress to ever-more thoughtful and informed examination of law and policy involving the right to keep and bear arms.

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The Johnson et al. Firearms Law book is for readers like the Buddhist monk who walked into a sandwich shop and said, “Make me one with everything.”

And he paid with a $100 bill and got no change. He asked for it, and was told, “Change must come from within.”

[Ed Grinberg]

Sanford Levinson observed in 1989 that the legal academy considered it “embarrassing” to think seriously about the Second Amendment.

From the introduction to A patriot’s history of the United States (2004):
“Personal liberties in America are genuine because of the character of honest judges…who, for the most part, still make up the judiciary, and because of the personal integrity of large numbers of local, state, and national lawmakers.”
So much for that.

[Brett Bellmore]

Sandy’s gotten over his embarrassment, but, sadly, not in a good way. At this point I think he doesn’t really care anymore what the 2nd amendment means, because he’s pretty much had it with the Constitution.

[dwb68]

Cant wait for the new edition with Thomas’ opinion in NY Guns.

[Jaypd]

Blackman: Look at this new article about guns I wrote!

Kopel: Look at this textbook I helped write!

Thomas: Y’all have some terrible timing.

[Longtobefree]

Really?
Multiple textbooks to explain “shall not be infringed”?
No wonder lawyers are the butt of so many jokes.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

People repeat “shall not be infringed” like some magical incantation, forgetting entirely that there are more words than that.
* keep
* bear
* arms

Cannon were considered arms back then; how does that square with “bear”? Either the word changed meaning and no one remembers the old, or there was more to it than at first blush.

Then there is the common admission that prisoners, the insane, and babies should not be able to “keep and bear arms”.

There’s all sorts of hidden meanings. Are you really so dense that you cannot see them?

[Longtobefree]

OK, we’ll do it the hard way.
1. Cannon are commonly borne on ships or limbers. And they are arms today.
2. Those incarcerated simply do not have access. And there is no such thing as “common admission” overriding the constitution, especially when it is not all that common.
3. Children capable of bearing arms are entitled to do so; babies probably not, but when physically able, yes. Students have first amendment rights, so they have second amendment rights as well.

There is nothing hidden in those few words.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

All sorts of things are smuggled into prisons. When cops arrest people, they take any arms they are bearing. Are you seriously implying that prisoners have the right to keep and bear arms, just not access? A distinction without a difference. You are quibbling as much as the lawyers you despise.

[Rev. Arthur L. Kirkland]

Gun absolutists resemble First Amendment absolutists — strident misfits with poor judgment, antisocial tendencies, and poor prospects for influence and success in modern America.

[Ogmios]

I already told you….up against the wall, mother________. You’re under arrest for being a leftwing extremist homosexual.

[Rev. Arthur L. Kirkland]

A polemical right- wing blog attracts an intensely deplorable class of commenters. And not by accident.

Whether this is a cause or consequence of the conservatives’ chronic failure in the culture war is less important than the fact that the stale, ugly thinking of right-wingers is a loser in modern America.

Carry on, culture war casualties.

[Ogmios]

That’s nice, but you’re still under arrest. Hands behind your back, polesmoker.

[Frank Drackman]

OK, I’ll only “Bear” arms that I can carry.
Hmm, somehow I missed the “Common Admission” about Babies (Jeez, all the “Pro Choice” peoples trying to kill you before they cut your cord, and if you do make it, they won’t let you own a gun)

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. ”

Oh, I get it, it’s like when Congress said only Obama-Care-Exchanges established by “The State” could give Subsidies.
and the Surpremes cleared it up by saying “The State” also meant “The United States”

Frank “I’m Dyslexic. Can I keep and arm a Bear instead?” (love to see the look on a Burglar’s face when a Grizzly draws down on him with a 1911)

[Doug Huffman]

So now we recover the proper meaning of ‘meme’. Today Tucker Carlson highlighted the new “false dichotomy”; to join common admission.

[dwb68]

Better argument: “prisoners, the insane, and babies” were probably not part of “people” (they could not vote either). You could lose your rights if you committed crimes, and you did not have full rights until you were the age of majority.

If you were otherwise law abiding, “shall not be infringed” was serious. There were no limits on your ability to own cannon, or privateer ships. Lewis and Clark had a repeating air gun with a box magazines.

[Dan Schiavetta]

Such a body of case law on a “right” that only sprang into being in 2008.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You’re even worse. The Constitution did not create the right, and it didn’t wait 220 years to do so. The Constitution recognizes the natural right of self-defense, surely the second most basic natural right (after the right of survival).

[Bruce Hayden]

From David’s article: https://www.aspenpublishing.com/File%20Library/Faculty-Product-Resources/Law%20School/Authors%20F-K/Johnson%20-%20Firearms%203e/FRRP_CH03.pdf

Worse for your argument – in early colonial days, it was a duty, not just a right to keep and bear arms. You couldn’t own property or work for yourself, if you didn’t own specified arms. The duty to own arms was often broader than the duty to train as part of the militia – for example, a single white woman living alone might have a duty to own arms, but wasn’t a part of the militia. Sons and indentured servants (how my Hayden Ancestors immigrated here) might have their arms provided by their father or master – but they wouldn’t be free of his control until they could supply their own.

[Bruce Hayden]

Imagine if that were the case today, that you would have to show up with an AR-15 with several 30 round magazines in order to vote, get a driver’s license, or buy land.

[Mike45]

Tying the right to vote with the right to keep and bear arms would keep restrictions on rights a lot more reasonable.

[Longtobefree]

Yeah. If you want to know how much sense is in “common sense gun control”, suggest that a carry permit be required to vote.

[SRG]

” in early colonial days, it was a duty, not just a right to keep and bear arms.”

I’d like evidence for this proposition.

[Toranth]

Are you familiar with the concept of a hyperlink?

[Dan Schiavetta]

Extinct law, irrelevant.

[dwb68]

Ever impressed with the ability of people to contradict themselves with a straight face.

[Bruce Hayden]

I was all ready to buy, until I saw the price tag. I could justify it for LS (maybe), or in practice, but I am retired. Sorry.

But keep up the good fight.

[Frank Drackman]

The Future…… I see….. a “Reverend” K “Bitter Clinger” Post coming…..

[Brett Bellmore]

I have one or two of Kopel’s books on my shelves, but this one is just a little pricey for a layman.

[Frank Drackman]

Sounds interesting but $298 is about what I paid for my first AK in 1986 (about $750 in todays “Sleepy Economy”)
AK’s were just starting to make it to Amurica, and still commanded a premium (Full Auto M-16’s were about $700 back then, plus the $200 NFA Stamp)
Remember the Pawn shop owner specifying “RED CHINA” as the Country of Manufacture on the 4473…
Still have it, 1,000’s of rounds, no jams, and have never cleaned it.
OK, clean it regularly.

Where was I? oh yeah, with all due respect to Academics, the AK’s more useful. How you gonna defend yourself against gang bangers with a Book? “Hey Guys, bring it in, take a knee, Lets review last weeks Homework Assignment,
“While driving down the PCH, a CHP Officer pulls you over and asks for license/registration, and notices your M-1 Carbine.
You did not know the weapon qualified as an assault weapon.

When you see the phrase “known or reasonably should have known” in a criminal statute, your personal knowledge is an element of the crime, and you cannot be found guilty if you either had no knowledge or if it would have been unreasonable for you to know it.

Suppose in this case you inherited a pistol with the 12-round unaltered magazine from your uncle. You have no experience with guns, you never talked to your uncle about the pistol, you did no research about the model, and you never even pulled the clip from the pistol to determine its capacity. To you, it looks like any other legal pistol, but you decide that you do not want it, and so you decide sell it.

While driving to sell the weapon, you are stopped by the California Highway Patrol for speeding. The officer sees the weapon on the backseat of your car. He examines it and determines that it has a 12-round capacity, and arrests you for possessing an assault weapon under California Penal Code section 30605. Under these facts, you had no actual knowledge of the weapon’s sole illegal characteristic, nor was it reasonable for you to know that it was illegal. Thus, you should have a defense based on your lack of knowledge.

[Stephen Lathrop]

A note of caution. Kopel knows very little about history, and less about historical methodology. His work is full of historical howlers. Compared to reliable history, it offers little more than lazy, out-of-context readings of cherry-picked laws and regulations.

Historians know laws tell you far less about the actual history of bygone places and times than laymen might presume. There is no assurance at all that a given antique law does not say the opposite of historical practice. Indeed, from the complete historical record, there can be reasonable inferences that pre-existing contrary practices gave rise to some law, and subsequently continued to overwhelm its enforcement. That happened frequently in the past, and continues today, as anyone who thinks for a moment will realize. Kopel gives that problem no attention. For Kopel, the texts of the laws are the record of history. A historian of the future could deduce from the laws of today that ours was a society without drug abuse.

You cannot trust laws to tell you history. Records of judicial outcomes serve somewhat better, at least with regard to the narrow slice of history which relates directly to laws. But as with all history, insight depends on broad context, not on exclusionary focus, cast in terms of present-minded analysis.

When you read more-reliable history, the experience will be more like a tale of occurrences and happenstance. It will not present as a Kopel-style piling up of evidence to support a conclusion.

Kopel seems to know nothing of the > 99% of the historical record which is not written down in laws. Kopel has not been trained as a historian, and should not be trusted to offer useful advice on any consequential historical topic.

Kopel should know, but does not, that reliable history does not readily lend itself to useful advice on any present topic. Kopel should know, but does not, that attempts to mine present meaning from the historical record are among the most prolific sources of historical errors. (At least one excellent text on historiography rules out the practice altogether, asserting that historical reference used for present purpose cannot be practiced at all without introducing logical contradictions; See Michael Oakeshott, On History).

Kopel is a gun advocate, who attempts to conjure an appearance of disinterested critique by posing as a historian. No one with an interest in accurate understanding of the past should take him seriously.

[Captain Motion]

I would prefer the title to be “Firearms and the Constitution,” because there is a high probability that arms possession was one of the unalienable rights referred to but not specified in the Declaration, which preceded the “Bill of Rights.” Blackstone notes that arms possession was an incident of fundamental property possession, not some separate right, because without the ability to protect property, one does not really possess it. That fundamental right would be protected via the 9th Amendment; the Second really was a federalism guarantee. Scalia’s discussion of colonists’ rights to defend family, hearth, etc, was really talking about the unstated fundamental right more than the Second’s constitutional right. He didn’t want to muck up the works by discussing unstated fundamental rights, because that would have put him on a collision course with Roe.

[nero]

I’m not a lawyer but I love law. Have several of Randy Barnett’s books and Blackman/Barnett’s “100 Supreme Court cases”. I’d love to see a more accessible version of this for normies that isn’t priced for law schools. 2nd Amendment law is something everyone should learn about and there’s a hole in the market for that kind of book.