The Historical Regulation of Intoxicated Firearms Possession and Carry: A Response to F. Lee Francis's 'Armed and Under the Influence: The Second Amendment and the Intoxicant Rule after Bruen'

22 Pages Posted: 2 Mar 2024

Date Written: February 28, 2024

Abstract

Recently, the Marquette Law Review published "Armed and Under the Influence: The Second Amendment and the Intoxicant Rule After Bruen" by Prof. F. Lee Francis. In that article, Professor Francis provocatively argues that the Second Amendment protects the right of intoxicated people to carry guns in public. Francis argues that, under the history-focused framework for deciding Second Amendment cases laid out by the Supreme Court in Bruen, there is an insufficient historical tradition to support prohibiting intoxicated people from carrying arms in public. Francis is wrong about the historical tradition. The historical tradition of regulating the intersection of guns and alcohol, the tradition of regulating intoxication and substance abuse generally, and the broader tradition of prohibiting dangerous people from possessing firearms all provide historical support for the constitutionality of modern prohibitions on intoxicated people carrying and using firearms.

This article will critique Francis’s article in three ways. First, Francis fails to acknowledge the full scope of the historical regulation of intoxicated people carrying firearms, which was extensive, especially during the mid-to-late-nineteenth century, the period which is most relevant to the Second Amendment analysis of state laws. Second, Francis’s piece fails to grapple with the ubiquitous general prohibition on public intoxication, which existed during the Founding Era and for much of American history. Third, Francis’s piece fails to address the historical tradition of prohibiting firearms possession by those who, like intoxicated people, posed a danger to themselves or others. All three of these traditions provide strong support for the constitutionality of prohibiting firearms possession by intoxicated individuals.

Keywords: Second Amendment, alcohol, guns, 2nd amendment, fourteenth amendment, intoxicated carry

Suggested Citation

Frassetto, Mark, The Historical Regulation of Intoxicated Firearms Possession and Carry: A Response to F. Lee Francis's 'Armed and Under the Influence: The Second Amendment and the Intoxicant Rule after Bruen' (February 28, 2024). Marquette Law Review, Vol. 108, (2024), Forthcoming, Available at SSRN: https://ssrn.com/abstract=4742106 or http://dx.doi.org/10.2139/ssrn.4742106

Mark Frassetto (Contact Author)

Everytown for Gun Safety ( email )

PO Box 4184
New York, NY 10163

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
69
Abstract Views
243
Rank
612,607
PlumX Metrics