Law of the Gun: Unrepresentative Cases and Distorted Doctrine

55 Pages Posted: 1 Sep 2021 Last revised: 24 Nov 2021

See all articles by Eric Ruben

Eric Ruben

Southern Methodist University - Dedman School of Law

Date Written: August 30, 2021

Abstract

There is a familiar saying, “If all you have is a hammer, everything looks like a nail.” The so-called Law of the Hammer takes a distinctive form in adjudication. If all judges see is one repeating fact pattern for a given area of law, they might perceive it as archetypical and build the law around it. If that fact pattern does not accurately reflect the field, however, the result can be analytical distortion in terms of both the choice of doctrine and its implementation.

This Article uses Second Amendment jurisprudence to illustrate this phenomenon. It reveals how District of Columbia v. Heller constitutionalized a policy area far broader than most appreciate, one that involves not only guns but various other weapons. The Article then shows how litigation fails to reflect that breadth. Guns are just one category of “arms” that most Americans choose not to own or carry for self-defense, but guns alone saturate Second Amendment case law. Non-gun arms are out of view when judges establish and apply Second Amendment doctrine. The Article contends that this gun-centricity, by obscuring the ways Americans exercise post-Heller Second Amendment rights, has led judges to exaggerate burdens, misread history, and espouse short-sighted doctrine to implement the right to keep and bear arms. More generally, the Second Amendment case study in this Article exposes litigation circumstances that create a heightened risk of such distortion as well as possible solutions.

Keywords: Adjudication, Doctrine, Second Amendment, Constitutional Law, Firearms, Arms, Weapons

Suggested Citation

Ruben, Eric, Law of the Gun: Unrepresentative Cases and Distorted Doctrine (August 30, 2021). 107 Iowa L. Rev. 173 (2021), SMU Dedman School of Law Legal Studies Research Paper No. 516, Available at SSRN: https://ssrn.com/abstract=3882925 or http://dx.doi.org/10.2139/ssrn.3882925

Eric Ruben (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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