The City's Second Amendment

70 Pages Posted: 1 Mar 2021

See all articles by Dave Fagundes

Dave Fagundes

Emory University School of Law

Darrell A. H. Miller

The University of Chicago Law School; Duke University School of Law

Date Written: February 27, 2021

Abstract

Cities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local regulations. Still others have responded to police violence by moving to demilitarize, disarm, or even disband their police forces. The burgeoning post Heller legal literature, though, has largely overlooked the relationship between cities, collective arms bearing, and the Second Amendment. In sum, to what extent do cities themselves have a right to keep and bear arms? This Article tackles that question. The Article contests the proposition that cities are bereft of constitutional rights in general, or against their states in particular. The Article challenges this notion by showing that the constitutional invisibility of municipal corporations is rooted in an outdated notion of the city as an artificial entity. The Article then turns to the Second Amendment, questioning the conventional wisdom that it provides solely a libertarian, individual bulwark against state restriction. The Article shows that in fact the right to keep and bear arms has an important collective dimension that promotes safety, and that the city is historically and institutionally situated to advance this Second Amendment feature. Finally, the Article examines how these two insights operate in practice, first by outlining the substantive contours of the city’s Second Amendment, and then by applying the model to contemporary controversies in firearm regulation such as guns in schools, concealed carry, Second Amendment sanctuaries, and the federal Law Enforcement Officers Safety Act. In addition to advancing the novel claim that cities themselves may assert rights to keep and bear arms, the Article also adds to the growing literature on municipal constitutional rights and the institutional framing of the Second Amendment in a post Heller world.

Keywords: Local government, Second Amendment, corporations, corporate personhood, legal personhood

JEL Classification: K19

Suggested Citation

Fagundes, Dave and Miller, Darrell A. H., The City's Second Amendment (February 27, 2021). Cornell Law Review, Vol. 106, 2021, Duke Law School Public Law & Legal Theory Series No. 2021-18, Available at SSRN: https://ssrn.com/abstract=3794429

Dave Fagundes (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Darrell A. H. Miller

The University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Duke University School of Law

210 Science Drive
Durham, NC 27708
United States

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