A Public Health Law Path for Second Amendment Jurisprudence

48 Pages Posted: 15 Jun 2020

See all articles by Michael R. Ulrich

Michael R. Ulrich

Boston University - School of Law; Boston University School of Public Health; Yale Law School

Date Written: May 2020

Abstract

The two landmark gun rights cases, District of Columbia v. Heller and McDonald v. City of Chicago, came down in 2008 and 2010, respectively. In the decade that has followed, two things have become abundantly clear. First, these cases provide little clarity about the nature and scope of Second Amendment rights, resulting in chaos and circuit splits in the lower courts. Second, growing empirical evidence has revealed that, in the background of the debate on individual constitutional rights, a serious gun violence epidemic is intensifying around the country. In one corner, gun rights advocates worry that increased firearm regulation will relegate the Second Amendment to a “second-class” right. In the other, gun control advocates are desperate for a solution to address this growing public health crisis. The role of history in addressing a modern problem intensifies the tension. But historically grounded solutions to this contemporary challenge exist in public health law. However, public health law precedent remains perplexingly unexplored by the courts. This Article considers a public health approach to prevention in the context of public health law jurisprudence and Second Amendment rights. It does so by making use of a well-established framework that allows courts to engage in a balanced analysis that accounts for the state’s interest in protecting public health and safety while still guarding individual rights. This novel approach bridges the gap between the empirical public health data and constitutional theory, offering clarity for the uncertainty currently plaguing academics, policymakers, and courts.

Keywords: Second Amendment, Gun Rights, Gun Violence, Constitutional Law, Public Health, Jacobson, Police Power, State Authority, States’ Rights, Public Health Law, Social Contract, Common Good, Individual Rights

Suggested Citation

Ulrich, Michael R., A Public Health Law Path for Second Amendment Jurisprudence (May 2020). Hastings Law Journal, Vol. 71, No. 4, 2020, Available at SSRN: https://ssrn.com/abstract=3605802

Michael R. Ulrich (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Boston University School of Public Health ( email )

715 Albany Street
Boston, MA 02118
United States

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

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