Firearm Contagion: A New Look at History

Abstract

Gun violence is widely considered a serious public health problem in the United States, but less understood is what this means, if anything, for evolving Second Amendment doctrine. In New York Pistol & Rifle Association, Inc. v. Bruen, the Supreme Court held that laws infringing Second Amendment rights can only be sustained if the government can point to sufficient historical analogues. Yet, what qualifies as sufficiently similar, a suitable number of jurisdictions, or the most important historical eras all remain unclear. Under Bruen, lower courts across the country have struck down gun laws at an alarming pace, while scholars and jurists continue debating the so-called true meaning of centuries-old firearm restrictions at times when slavery existed, women could not vote, and it took Thomas Jefferson longer to travel from Washington, D.C. to Williamsburg, VA than it currently takes to fly to the other side of the planet. This approach ignores the historical relevance of the government’s authority, if not outright duty, to respond to public health crises even if constitutional rights were implicated. The lack of historical laws related to mass shootings, large capacity magazines, and bullets designed to expand inside the body reflects the drastic evolution of gun violence rather than an impenetrable Second Amendment scope. Indeed, while state police powers to protect public health and safety preexist the Constitution, gun violence would have hardly been a priority for elected officials historically. Thus, the absence of robust, widespread gun regulations hardly reflects a consensus understanding of Second Amendment protections. Instead, examining accepted government restrictions for public health crises such as infectious diseases may provide better insight into the scope of authority to limit constitutional rights to protect the public. A public health law lens also helps to clarify that cementing policy options to emerging public health problems lacks historical pedigree.

Keywords: Second Amendment, gun violence, contagious disease, public health law, constitutional law, police power, state authority, quarantine, vaccination, constitutional rights, health disparities