Brannon P. Denning (Samford University – Cumberland School of Law) has posted Judicial Reaction to Private Gun Control: Preliminary Thoughts on SSRN. Here is the abstract:
One of the biggest legal stories of 2021 was the attempt by Texas to limit abortion rights in the state and authorize enforcement of those restrictions via a civil cause of action brought by private persons. This approach was carefully crafted to insulate the law and its enforcement from judicial review. The Supreme Court’s Dobbs decision has eclipsed that rather baroque attempt at abortion regulation, but the novelty of the law has caused some on the left to experiment with similarly indirect ways of enforcing gun controls. Just as the Texas legislation was designed to empower private parties to curb abortion rights and insulate those efforts from judicial review, private gun control efforts (like those in California) seek to prevent judicial applications of the Court’s more robust Second Amendment jurisprudence. This term, for example, the Supreme Court heard oral arguments challenging the constitutionality of Hawaii’s reversal of its prior default rule that those possessing a concealed carry permit could carry firearms on private property absent a specific prohibition of firearms by the property owner. Hawaii’s new rule requires explicit consent from a property owner in order to carry weapons onto private property. This effectively renders nearly the entire state a “gun-free zone.”
This essay is exercise in speculation as to possible judicial reaction to such private gun control efforts. In it, I argue that—as has been the case in past attempts by private actors to suppress constitutional rights—courts would likely find ways to cast those ostensibly private actors as state actors. My argument here was inspired by Aziz Huq’s recent article that describes and analyzes attempts by private actors to limit constitutional rights. My article makes two distinctive contributions to the study of the Second Amendment and to responses to private suppression of individual rights. First, it is one of a relatively few articles to examine private gun control efforts both actual and proposed. Second, I argue that insofar as private suppression comes on the heels of the Court’s enforcement of some particular constitutional right against a state actor, the Court’s reaction to attempts to evade its decisions through private suppression has been to relax the state action doctrine and apply constitutional principles to private parties. This relaxation, in turn, can be understood as another anti-evasion doctrine (AED) like those Mike Kent and I identified in an earlier article. I argue here in more detail, the Court has likewise stymied evasion of its decisions by private actors too. Understanding Court decisions relaxing the state action doctrine as one of the myriad AEDs created over the years suggests there is less incoherence to state action than Court critics have historically alleged.
Recommended.
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