GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2023

Status

Accepted

Abstract

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 possesion 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.

GW Paper Series

2024-06

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