Citation

Talbot T, Skaggs A. J. Law Med. Ethics 2020; 48(Suppl 4): 98-104.

Copyright

(Copyright © 2020, American Society of Law, Medicine and Ethics, Publisher John Wiley and Sons)

DOI

10.1177/1073110520979407

PMID

unavailable

Abstract

This article describes why a constitutional test that relies exclusively on history and tradition for deciding modern firearm regulations is woefully inadequate when applied to modern technologies. It explains the unique advancements in firearm technology - specifically, ghost guns - that challenge the viability of a purely historical test, even if legal scholars or judges attempt to reason by analogy. This article argues that the prevailing, two-step approach, which incorporates both history and tradition, and requires a judicial examination of the purposes and methods supporting a challenged firearm regulation, should apply nationwide. That a dissenting faction of conservative judges seeks to ignore the prevailing approach presents a potentially dangerous path for Second Amendment jurisprudence. This article draws from certain historical gun laws to illustrate the difficult legwork that analogies must do under a purely historical test. It uses the advent of ghost guns as a case study to offer guidance for judges in their rulemaking practices regarding Second Amendment cases.

Language: en