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Author

Eric Ruben

Bio: Eric Ruben is an academic researcher. The author has contributed to research in topics: Supreme court & Right to keep and bear arms. The author has an hindex of 3, co-authored 9 publications receiving 30 citations.

Papers
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TL;DR: The first comprehensive empirical analysis of post-Heller Second Amendment doctrine is presented in this paper. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller, scholars, advocates, and judges disagree about (and sometimes simply do not know) how to characterize it.
Abstract: As a matter of constitutional doctrine, the right to keep and bear arms is coming of age. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller, scholars, advocates, and judges disagree about (and sometimes simply do not know) how to characterize it. This Article is the first comprehensive empirical analysis of post-Heller Second Amendment doctrine. Beginning with a set of more than one thousand Second Amendment challenges, we have coded every available Second Amendment opinion — state and federal, trial and appellate — from Heller up until February 1, 2016. The dataset is deep as well as broad, including dozens of variables regarding the content of each challenge, not just whether it prevailed. Our findings help provide an objective basis for characterizing Second Amendment doctrine and framing new scholarly inquiries. This is a particularly important task now, as the Amendment becomes a part of “normal” constitutional law and increasingly susceptible to the standard tools of legal analysis.

9 citations

01 Jan 2015
TL;DR: Clement as discussed by the authors used antebellum state court case law and referred the Ninth Circuit to the interpretation of the Second Amendment from an 1846 opinion by the Georgia Supreme Court, Nunn v. State.
Abstract: During recent oral arguments in Peruta v. County of San Diego, a case being reconsidered en banc in the U.S. Court of Appeals for the Ninth Circuit, former Solicitor General Paul Clement turned to what may appear an unusual guide for interpreting the scope of the Second Amendment in the twenty-first century. His clients had been denied permits to carry concealed handguns in San Diego because they could not demonstrate a heightened need for selfdefense, and Clement was trying to convince the Ninth Circuit that the Second Amendment precluded those denials. Two of the strongest sources of authority—decisions by other federal appellate courts and evidence from the period of the Second Amendment’s adoption—provided scant support for his position. In fact, several courts recently upheld “good cause” policies similar to San Diego’s, and firearm regulations, including those prohibiting discharge in populated areas, were common in the Founding era. Instead, Clement looked to antebellum state court case law, and referred the Ninth Circuit to the interpretation of the Second Amendment from an 1846 opinion by the Georgia Supreme Court, Nunn v. State. The Georgia high court held that the Second

7 citations

Posted Content
TL;DR: This paper explored whether the antebellum Southern case law reflected a national consensus on the meaning of the right to bear arms or, in the alternative, a narrower regional conception of this right.
Abstract: In recent years, following the Supreme Court’s landmark originalist opinion in District of Columbia v. Heller, courts have been asked to strike down restrictions on the public carrying of handguns on the basis of the original understanding of the Second Amendment. One of the key sources used to justify this outcome is a family of opinions from the antebellum South asserting an expansive right to carry weapons in public. In this essay we explore whether that body of case law reflected a national consensus on the meaning of the right to bear arms or, in the alternative, a narrower regional conception of this right. We discuss how the South’s distinctive culture of slavery and honor influenced both public carry and regional jurisprudence, and how the case law originating from that culture cannot be extended to the rest of the country without explanation. We then draw on new post-Heller research to discuss an alternative American tradition — predominant outside the South — that was less enthusiastic about public carry and more accepting of public carry regulation. This analysis suggests that the view of the right to bear arms expressed in the nineteenth-century Southern opinions falls woefully short of reflecting a national consensus. Moreover, judges seeking historical guidance in public carry cases today should look to the alternative tradition that presumed the constitutional soundness of broad public carry restrictions.

6 citations

Journal Article
TL;DR: The first comprehensive empirical analysis of post-Heller Second Amendment doctrine is presented in this article. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller, scholars, advocates, and judges disagree about (and sometimes simply do not know) how to characterize it.
Abstract: As a matter of constitutional doctrine, the right to keep and bear arms is coming of age. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller, scholars, advocates, and judges disagree about (and sometimes simply do not know) how to characterize it. This Article is the first comprehensive empirical analysis of post-Heller Second Amendment doctrine. Beginning with a set of more than one thousand Second Amendment challenges, we have coded every available Second Amendment opinion — state and federal, trial and appellate — from Heller up until February 1, 2016. The dataset is deep as well as broad, including dozens of variables regarding the content of each challenge, not just whether it prevailed. Our findings help provide an objective basis for characterizing Second Amendment doctrine and framing new scholarly inquiries. This is a particularly important task now, as the Amendment becomes a part of “normal” constitutional law and increasingly susceptible to the standard tools of legal analysis.

3 citations

Journal Article
TL;DR: In this article, the authors compare the ways First and Second Amendment doctrine treat perception-based justifications for restricting the right to keep and bear arms and conclude that the role of perceptions in defending regulations challenged as violating constitutional rights has a minimal role, if any at all, in the constitutional analysis.
Abstract: I INTRODUCTION Public perceptions motivate policymakers. They regulate to preserve certain perceptions, such as that of a fair judiciary, and to prevent others, such as public offense. They also respond when the public perceives a danger--for example, from gun violence. But what is the role of perceptions in defending regulations challenged as violating constitutional rights? Intuition may suggest that trying to shape perceptions should have a minimal role, if any at all, in the constitutional analysis. But existing doctrines paint a more nuanced picture, sometimes categorically rejecting and other times permitting shaping perceptions as a valid reason to regulate. Legal scholarship has explored the interplay between public perception and the law, (1) but has not compared the ways First and Second Amendment doctrine treat perception-based justifications. This article begins to fill that gap. The comparison is increasingly relevant after the Supreme Court's landmark Second Amendment decision in District of Columbia v. Heller (2) because courts are looking to the First Amendment for guidance as they implement the right to keep and bear arms. (3) Thus, it makes sense to consider the two Amendments in tandem even if, as this article concludes, the comparison highlights reasons to treat them differently. Categorical rules in First Amendment free speech doctrine block regulations intended to influence certain perceptions. To take one example, the government generally cannot regulate speech simply because it would be perceived as offensive. (4) Yet regulating speech to influence other perceptions is not categorically barred. Preserving certain public perceptions, like that of judicial integrity, can justify speech regulations under heightened scrutiny without the need to prove actual harm--imminent or otherwise--to a fair justice system. (5) In the Second Amendment context, meanwhile, as doctrine has developed in the nine years since the Supreme Court articulated an individual right to keep and bear arms in Heller, (6) some courts have accepted preserving perceived safety from armed violence as a legitimate reason to regulate. Most prominently, the Seventh Circuit upheld a ban on assault weapons and large capacity magazines in part because the ban "reduces the perceived risk from a mass shooting, and makes the public feel safer as a result." (7) The validity of that objective was questioned, including by Justices Clarence Thomas and Antonin Scalia, who dissented from the denial of certiorari in the case. (8) What role, if any, the perception of safety should play in Second Amendment analysis is an open issue, ripe for scholarly attention. This article proceeds in three parts. Part II sets the stage by defining "perception," and observing how in circumstances in which no constitutional right is implicated deferential standards of review are generally indifferent to whether regulations are intended to shape perceptions. Part III turns to speech regulations, where limiting speech to shape perceptions has been declared categorically unconstitutional, but only in certain circumstances. Part III considers one theory of First Amendment doctrine--that its goal is to smoke out ideological censorship (9)--which may explain the seemingly inconsistent approach. Part IV shifts to consider firearm restrictions intended to preserve the perception of safety. Second Amendment doctrine has not settled the question of when, if ever, influencing perceptions can justify arms restrictions, and courts will look to the First Amendment for doctrinal guidance. First Amendment doctrine likely would reject preserving the perception of safety as a valid regulatory objective for a speech restriction. But historical weapons regulations and distinct Second Amendment values and risks suggest that perceived safety has a more legitimate regulatory role in the firearm context. Part IV concludes by discussing some pragmatic considerations, like avoiding baseless perceptions, which may limit when and how perceived safety can justify a gun safety regulation. …

2 citations


Cited by
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TL;DR: Citizen-Protectors: The Everyday Politics of Guns in an Age of Decline, by Jennifer Carlson as mentioned in this paper is a case study of individuals who legally carry guns, either openly or concealed, in southeastern Michigan.
Abstract: Citizen-Protectors: The Everyday Politics of Guns in an Age of Decline, by Jennifer Carlson. New York: Oxford University Press, 2015. 248 pp. $29.95 cloth. ISBN: 9780199347551. It is easier for an average citizen in Dodge City or Tombstone to carry a concealed firearm in public today than it was in the nineteenth century, the heyday of the "Wild West." The expansion of "shall issue" concealed carry laws in the United States over the past three decades represents the greatest liberalization of gun laws in the nation's history. Consequently, many more ordinary citizens are legally permitted to carry firearms for self-defense in public. Reasonable estimates suggest 8 to 12 million Americans have permits to carry concealed weapons nationally, with over 10 percent of the population licensed to carry in some states. Jennifer Carlson calls this a "gun carry revolution," and she is right. And yet sociologists have been oddly silent about it. Carlson steps into this void with a case study of individuals who legally carry guns, either openly or concealed, in southeastern Michigan. In addition to interviews with 60 mostly white, middle-aged male gun carriers, Carlson did 150 hours of participant observation at shooting ranges, activist events, and gun training classes. In the process she also obtained a concealed carry license, carried a gun during her fieldwork, and became a National Rifle Association (NRA) certified firearms instructor. In the best tradition of ethnography, Carlson is a critical observer analyzing this aspect of American gun culture from the inside out. Carlson begins Citizen-Protectors with the stories of two individuals that illustrate the complex race, class, gender, and other social dynamics that influence gun carry. The first involves Corey, a white clerk at a corner store in Flint, who shoots and kills a black man in self-defense during … Language: en

52 citations

Book
20 Aug 2020
TL;DR: In this paper, Fix and Kassow argue that theories that do not account for the full range of ways in which state high courts can act are, by definition, incomplete, and provide an important addition to the scholarly literature on the impact of Supreme Court decisions, should be read by anyone interested in law and politics or traditional approaches to the study of legal decision-making.
Abstract: US Supreme Court Doctrine in the State High Courts challenges theoretical and empirical accounts about how state high courts use US Supreme Court doctrine and precedent. Michael Fix and Benjamin Kassow argue that theories that do not account for the full range of ways in which state high courts can act are, by definition, incomplete. Examining three important precedents – Atkins v. Virginia, Lemon v. Kurtzman, and DC v. Heller/McDonald v. Chicago – Fix and Kassow find that state high courts commonly ignore Supreme Court precedent for reasons of political ideology, path dependence, and fact patterns in cases that may be of varying similarity to those found in relevant US Supreme Court doctrine. This work, which provides an important addition to the scholarly literature on the impact of Supreme Court decisions, should be read by anyone interested in law and politics or traditional approaches to the study of legal decision-making.

9 citations