chevron-down Created with Sketch Beta.
January 02, 2013 Articles

Book Review: Firearms Law and the Second Amendment: Regulation, Rights, and Policy

We review the very first law-school textbook covering the Second Amendment.

By Bobbie K. Ross – January 2, 2013

Nicholas J. Johnson, David B. Kopel, George A. Mocsary, and Michael P. O'Shea
Firearms Law and the Second Amendment: Regulation, Rights, and Policy 
Aspen Publishers

Second Amendment jurisprudence and the practice area of firearms law have become much more intriguing to lawyers at all levels of experience, law students, and even legal-minded laypersons—especially after the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). In Heller, the Supreme Court held that the Second Amendment conferred an individual right to keep and bear arms. In McDonald, the high court held that the Second Amendment right to keep and bear arms is a fundamental individual civil right fully applicable to the states through the due process clause of the Fourteenth Amendment.

The idea of individuals litigating firearms-related cases without having any sort of firearms background—or having never even fired a firearm—is somewhat of a scary idea. These cases have the potential to affect one of our most important civil rights. It is a frightful concept indeed to have people litigating firearms with little to no understanding of how they work. Thankfully, law-school professors Nicholas J. Johnson (Fordham University School of Law), David B. Kopel (University of Denver School of Law), George A. Moscary (University of Connecticut School of Law), and Michael P. O’Shea (Oklahoma City University School of Law) have stepped in to fill that void of knowledge concerning firearms and the laws surrounding them with their textbook, Firearms Law and the Second Amendment: Regulation, Rights, and Policy.

Firearms Law and the Second Amendment is the first law-school textbook to specifically address the Second Amendment. Prior to Heller, the right to keep and bear arms was usually delegated to a brief review in constitutional-law casebooks, but Firearms Law and the Second Amendment gives the Second Amendment the treatment it deserves in a post-McDonald world.

The book is organized into two parts: the origins of the right to arms and the right to arms in the modern world. Part one begins with an introduction to firearms themselves, explaining, inter alia, the parts of a firearm and ammunition and the various types of firearms. Part two provides a historical overview of the Second Amendment across the globe—from the early Far East, through Ancient Greece and Rome, to Second-Millennium Europe, even touching on Judeo-Christian thought on the matter. The remainder of part two delves into today’s gun-control laws and controversies surrounding those laws.

Firearms Law and the Second Amendment is filled with interesting historical facts that the average law student, or even firearms-law practitioner, probably does not know. For example, during the early colonial period, the 13 original colonies typically “required the ownership of arms, and sometimes required carrying of arms, or the training of dependents in the use of arms.” During the Reconstruction Era, Black Codes “banned arms possession by Blacks, or required them to obtain permits, which were generally denied," while those permit requirements did not apply to whites. Id. at 290. “Criticism focused explicitly on deprivations of the right to keep and bear arms” played a part in congressional deliberations that ultimately led to adoption of the Fourteenth Amendment, the Civil Rights Act of 1866, and the Second Freedmen’s Bureau Act. Id. at 294. Part one also covers historical developments concerning the right to arms, militias, and slavery during the Early Republic and antebellum periods.

Part two details the myriad factors that led Congress to pass the first major federal gun-control statute, the National Firearms Act of 1934 (NFA), and discusses the Federal Firearms Act of 1938, the 1968 Gun Control Act, the Firearms Owners Protection Act of 1986, the 1993 Brady Act, the 1994 assault weapons ban, and the 2005 Protection of Lawful Commerce in Arms Act. The authors also analyze federal court rulings since United States v. Miller, 307 U.S. 174 (1939), with attention to the social and political developments in the right-to-arms movement between Miller and Heller. Almost 200 pages are devoted to discussion of Heller and McDonald, including their background, modes of constitutional interpretation, and an exercise in constitutional drafting that is sure to facilitate discussion in any law-school class.

Part two proposes that firearms-policy debates in America are “complicated by the special concerns of different groups in American society [and] examines disparate views about the costs and benefits of firearms in the context of race, gender, age, disability, and sexual orientation.” Id. at 725. Particularly striking is the juxtaposition of contrasting positions in amici briefs on Heller by the National Association for the Advancement of Colored People Legal Defense and Education Fund (supporting the firearms regulations) and the Congress of Racial Equality (challenging the firearms regulations).

Firearms Law and the Second Amendment is more interesting than the average law-school textbook, at least in this author’s opinion, and its organization makes it easy to use as reference material or as a casebook in a variety of law-school classes, such as constitutional law, criminal law, jurisprudence, and legal history.

The book is available for purchase on Amazon, and a teacher’s edition is available for law-school professors. Additionally, the authors have created a website for the casebook, where co-author Professor Kopel has posted a podcast series discussing each of the first seven chapters.

Whether you are a law student taking a course on the Second Amendment, a newer practitioner in the field of firearms law, or someone who is already familiar with firearms law, Firearms Law and the Second Amendment is definitely worth the cost to have as part of your library.

Keywords: civil rights litigation, Second Amendment, firearms, textbook, firearms regulation, firearms rights, firearms policy

Bobbie K. Ross is the owner of the Law Office of Bobbie K. Ross in Manhattan Beach, California.

Copyright © 2013, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).