Symposium Articles

This Article examines how the rapid deregulation and rampant possession of firearms is likely going to impact policing, and the constitutional law that governs it. For the longest time, lawful gun carry, concealed or open, was exceedingly rare. For a police officer to see a gun was both to see danger, and a crime in progress. This link among guns, danger, and unlawful possession has shaped much of the law of policing. But now, this understanding of the world is in its last stages of unraveling.

In nearly all states, guns are no longer unlawful to own and carry by default. In many, they are barely regulated. Recent Supreme Court Second Amendment decisions like New York State Rifle & Pistol Association v. Bruen serve only to hasten where state laws already were headed. For police, however, the harm guns can do exists irrespective of what the law has to say about the legality of carrying them. As a result, the nation’s gun laws are on a collision course with the practice and law of policing. This Article explores how the constitutional law governing policing is changing and will change in the face of gun legalization.

Part I of this Article explains the ubiquitous role guns play in the life of a police officer, and what actions guns lead police to take. Part II is about the legal doctrine of policing, both before and after firearm legalization. It details how the law shaped what police could do in order to protect themselves and others, and how that law is changing to accommodate legalization. Police now must operate in a terrain that increasingly is uncertain as to their lawful authority, and that in many instances may put them or others in jeopardy. Part III examines how the shifting laws of guns and policing might impact police behavior, likely resulting in ad hoc carve-outs for police authority that—if history is any guide—overwhelmingly will be imposed on Black and Brown communities.

Two decisions in 2022, issued only a day apart, represent a dramatic and deadly escalation of the Supreme Court’s politicized jurisprudence. In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court declared that the Constitution has always protected a right to armed self-defense in public as well as in the home. In Dobbs v. Jackson Women’s Health Organization, it decreed that the Constitution has never protected a right against forced childbirth. What unites the two cases, beyond the radical political extremism displayed by the conservative Supreme Court majority, the indefensibly selective and incoherent use of history, and the broad rejection of longstanding precedent, is the full transformation of American constitutional law into what Achille Mbembe calls “necropolitics.” At the heart of the Bruen and Dobbs decisions is nothing less than life and death, and specifically the question of who gets to decide who lives and who dies. Expanding the right to guns means expanding white men’s use of deadly force against women and racial minorities. Eliminating the right to abortion means leaving women at the mercy of the death, injury, and other suffering inflicted by forced childbirth. Taken together, the two cases demonstrate that the Supreme Court has embraced the use of the Constitution as a tool of racial patriarchy.

On June 22, 2022, the Supreme Court issued its opinion in New York State Rifle & Pistol Association v. Bruen, striking down New York’s over 100-year-old law requiring individuals seeking to carry a firearm concealed in public to show a special need for self-protection. Holding that New York’s law violated the Second Amendment, the Court rejected the means-end scrutiny that lower courts had previously used to determine whether firearms restrictions comported with the Second Amendment, explaining that the appropriate test for evaluating the constitutionality of a firearms restriction is whether it is consistent with the Second Amendment’s text and historical understanding. The plain text of the Second Amendment, however, does not explicitly say private citizens have a right to carry firearms in public. Instead of acknowledging this, the Court focused on the fact that the text of the Second Amendment draws no distinction between the possession of firearms in the home and the possession of firearms in public. The Court then proceeded to cherry pick which historical sources it found relevant, rejecting sources that supported upholding the New York law and finding persuasive only those that supported its conclusion that individuals have a Second Amendment right to carry firearms outside the home. One result of Bruen is that states now have fewer tools to limit the number of individuals who can lawfully carry a firearm in public.

To reduce gun violence in public, legislators can try to regulate firearms on the front end by limiting those who can carry firearms in public. Alternatively, legislators can try to regulate firearms on the back end by discouraging those who choose to carry in public from unjustifiably using their firearms to injure or kill others. Since Bruen limits “front-end” regulation, it is a particularly opportune time to explore the effectiveness of “back-end” regulation.

This Article argues that lawmakers should add reform of back-end laws to their arsenal of tools to deal with the epidemic of gun violence that afflicts our country. While a variety of laws can be amended to discourage the unjustifiable use of firearms, this Article focuses on just one body of law that is uniquely situated to discourage the unjustifiable use of firearms: the law of self-defense. Self-defense law is uniquely positioned to inform whether and when an individual chooses to use their firearm to threaten, injure, or kill another person in light of the Supreme Court’s declaration in Heller that self-defense is at the core of the Second Amendment. The Article examines a few ways the law of self-defense can be strengthened to discourage the unjustifiable use of firearms in public.

Last Term, the U.S. Supreme Court decided a significant Second Amendment case after more than a decade of waiting. The Court’s majority coalition attempted to prevent judges from using deferential means-ends scrutiny and redirect their attention to enacted text, old examples, and analogies thereto. Yet the Court condemned outlier “may-issue” firearm licensing and, at the same time, preserved popular “shall-issue” licensing. That split result seems incompatible with some of the majority’s surface-level methodological commitments. Actually, to craft its holding, the majority deployed a wider range of considerations than text, history, and analogy, even apart from any extra-legal policy preferences that might have mattered. Such methodological inclusiveness is typical in modern constitutional adjudication, of course. But this case raises hard questions about which of the apparently legal considerations used to decide constitutional cases are themselves “constitutional” and which are not, along with how to understand the relationship between them. Perhaps “constitutional considerations” are so inclusive as to not be so special, or else “non-constitutional considerations” are no less supreme than their companions. Dilemmas appear either way, and for us all.

For a wide range of individual rights, the government can justify certain restrictions on the right in at least four kinds of ways: (1) by showing that the restriction is outside the scope of the right, as defined by text, original meaning, and other factors; (2) by showing that it only modestly burdens the exercise of the right; (3) by showing that it serves sufficiently strong countervailing government interests; or (4) by showing that the government has special power as proprietor when it comes to behavior that uses its property.

Bruen rejected countervailing-government-interests arguments for the Second Amendment, and focused on scope arguments. But it also seemed to endorse some kinds of modest burden arguments, and didn’t foreclose the possibility of government-as-proprietor arguments. This Article discusses these matters broadly, and also applies the analysis to various particular kinds of gun restrictions

In the wake of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, more Second Amendment challenges will turn on courts’ answers to factual questions about history—answers courts may formulate based on the historical evidence compiled by the parties to the dispute. These answers will become precedents that tell us what types of regulations the Second Amendment does and does not permit. What happens to those precedents when new historical evidence comes to light? This Essay argues that the Court should be willing to revisit its precedents when historical evidence demonstrates error in an earlier decision. Revisiting erroneous precedents coheres with the Bruen Court’s theory of constitutional meaning, and it answers the dissent’s concern about the imperfect nature of the historical inquiry that occurs in litigation.

In the wake of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, courts are now confronted with new questions about where guns can be restricted and what justifications support those regulations. This Essay urges that the development of the doctrine governing location-based prohibitions should focus as much on the why as the where. Instead of simply isolating each location and considering the historical pedigree of gun restrictions in that place, judges should evaluate the reasons behind the sensitive places doctrine itself. We aim to recenter these first order questions to avoid haphazard doctrinal development that threatens to leave Second Amendment law incoherent and unpredictable.

Judges developing the doctrine will need to avoid several hazards. Among them: pitching historical analogies too narrowly, neglecting sensitive location mobility, and excessively focusing on locational features rather than regulatory justifications. Whatever values ultimately underpin the doctrine, they should direct the shape of location-based challenges. Whether the doctrine is grounded in safeguarding the exercise of other constitutional rights, protecting the vulnerability of specific populations, recognizing the inhibited judgment or discretion of those gathered, or other values altogether, this Essay shows why justificatory and constitutional foundations must be set before the doctrinal structure is completely built.

In Haiti, critical legal empowerment (CLE) offers a lens to reimagine the promise of the law in a system that has historically excluded the majority population from its protection. Beginning with the belief that tout moun se moun—all people are people—CLE requires the dismantling of doctrines and rules that create different categories of people and also demands that all-powerful actors be held accountable for rights violations under the law. In Haiti, this means that the Haitian state and, crucially, its international “partners” be made responsible to those who have been excluded not only from, but by, the law.

This Article traces the thread of legal oppression and resistance in Haiti, examining efforts by Haitian communities to make demands of the law and the legal system based on the insistence that all Haitians have equal rights, that tout moun se moun. These demands do not stop with equality, however. They also include affirmative claims of dignity and life-affirming autonomy from the state, spaces where subsistence farmers can protect unique Haitian lifeways. This insistence—on the protection of life, freedom from abuse, and extension of basic rights to subsistence—including land, food sovereignty, and clean water—is ongoing but also radically incomplete. Only once the law can encompass these rights as against powerful actors who deprive both individuals and collectives of their rights and dignity will the promise of the Haitian revolution finally be fulfilled.

As the world violently shifts and adjusts to peril, the legal profession has not been exempted from the challenge to transform itself. Within a legal empowerment practice, the question of relevance invites legal advocates and professionals to adapt and respond to the unmet legal needs arising from deepened states of inequality. This Article summarizes the experience and contributions of legal empowerment work in Puerto Rico during and after significant catastrophes. Analyzing how states of emergency and failed recovery processes affect the exercise of human dignity in Puerto Rico provides the legal profession perspective on the urgency to defend legal empowerment mainly when crises occur. Despite its importance during and after emergencies, access to justice is rarely considered an essential component of disaster preparedness or response. Unlike food, medicine, and debris removal, the capacity of individuals and communities to understand and traverse legal processes is not contemplated amidst the chaos. Survivors of emergencies who subsequently become victims of resulting economic fallout, law enforcement, and other social issues are left behind and fall through the abyss of underserved justice. A people-centered, legal empowerment approach to lawyering has proven valuable and feasible to address and respond to the acute disparities amplified during emergencies. It is also a call to a broadly defined justice community—the judiciary, agencies, lawyers, law students, and law schools—that is also at risk of peril if transformations fall short.