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03/19/2020

Mark Frassetto: Meritless Historical Arguments in Second Amendment Litigation
Michael Ramsey

Mark Frassetto (Everytown for Gun Safety) has posted Meritless Historical Arguments in Second Amendment Litigation (46 Hastings Const. L.Q. 531 (2019)) (24 pages) on SSRN.  Here is the abstract:

Most law review articles attempt to address difficult or hotly contested legal issues. This is not one of those kinds of articles. Rather than address the hard questions about the originalist methodology or the complicated firearms regulatory landscape surrounding the ratification of the Second and Fourteenth Amendments, this article will address the frivolous arguments made by many plaintiffs in Second Amendment cases, some of which have unfortunately made their way into district and circuit court decisions. These arguments, often made in a misleading sentence or two, usually take a few paragraphs to effectively rebut, paragraphs which the state and local governments defending against challenges to gun laws generally do not have the time, necessary expertise, or word count to include in their briefing. This article aims to provide easy answers to these arguments, hopefully allowing both the courts and the parties to focus on the serious issues of debate.

This article is not asserting that all the historical issues surrounding the Second Amendment are simple, or subject to easy answers. There are serious arguments about history to be made by both sides in Second Amendment scholarship and litigation. Many have been made by the scholars contributing to this volume. Assessing the original public meaning of rights based on centuries-old legal traditions, which requires the analysis of case law and statutes drawn from an unfamiliar legal tradition and culture, is not easy work and does not yield simple answers. Unfortunately, these issues worthy of serious discussion are often obscured by frivolous arguments that require time-consuming responses and take focus away from the actual issues in the case.