Rachel Barkin (Harvard Law School) has posted Irreparable Harm to Democratic Will: Why Courts Should Not Extend the Elrod Presumption to Second Amendment Challenges at the Preliminary Injunction Stage on SSRN. Here is the abstract:
Preliminary injunctions require movants to prove that they will be irreparably harmed before courts can resolve the merits of the case at trial. In First Amendment cases, federal courts frequently presume irreparable harm under Elrod v. Burns, 427 U.S. 347 (1976), substantially lowering the burden for obtaining preliminary relief. Gun industry members, having strategically employed First Amendment challenges to enjoin gun regulations, now urge courts to extend this presumption to Second Amendment claims. There is currently a circuit split on whether to do so. In 2025, the Supreme Court declined to resolve this question, leaving the issue very much alive.
This Article argues against such an extension, making two claims. First, even in the First Amendment context, courts have recognized that the reach of the Elrod opinion is limited. The text of the opinion and its context reveal that the Supreme Court likely did not intend to adopt a categorical presumption of irreparable harm for all First Amendment cases. Instead, the presumption applies to direct, time-sensitive, and ongoing government violations of First Amendment rights. It does not apply to speculative, indirect burdens on those freedoms. The Second and Eleventh Circuits adopt this interpretation. Other circuits have similarly heightened or limited the presumption, reflecting hesitancy to extend Elrod in the First Amendment context. Given this hesitancy, courts should not extend the presumption even further to the Second Amendment.
Second, First Amendment harms are constitutionally distinct from Second Amendment harms. As recognized by many courts, First Amendment harms are sui generis. Second Amendment claims often lack the time-sensitivity of prior restraints on speech, and, unlike many First Amendment violations, Second Amendment harms can be addressed with monetary damages, lacking the need for preliminary injunctive relief. The Third Circuit, which declined to extend the presumption to the Second Amendment context, reinforced this conclusion by invoking principles of judicial restraint, cautioning federal courts against invalidating democratically enacted state gun legislation on a premature record. These laws deserve full consideration on the merits.
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