For everyone that was asking, you can now download my Note on SSRN... Link inside!


May 25, 2012, 10:48 PM
ETA: For those of you just joining us, I got my 2A student Note published in the Minnesota Law Review, a highly-ranked law journal. See this thread ( Hopefully it can serve as a citation for some of the good guys as some of these gun cases make their way up to the higher federal courts.

Hi everyone!

I've just completed the process to upload my Note to SSRN! It will appear in the Minnesota Law Review, Vol. 96, Issue 6 (for those of you legal people who might care).

Here's the link to the abstract! (

Just click on "Download This Paper" and you'll have a copy. Please remember that this is not the final version, although I did try to update everything as best I could. There might still be a couple cites that need to be updated, language cleared up, etc., but y'all get the idea!

Feedback? Thoughts? Let me hear it!

Thanks for checking it out!


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May 26, 2012, 02:14 PM
The Note has now been "accepted" by SSRN. Adjusted the link above to make sure it's redirected to the proper area.

It's called "Loaded Questions: A Suggested Constitutional Framework for the Right To Keep and Bear Arms" so if the link moves or doesn't take you there, let me know and I'll make sure to fix it.

I hope you all can give it a read and let me know what you think!

May 26, 2012, 07:22 PM
Excellent piece! Structurally, you may have been constrained by editorial guidelines, but it does seem to reflect my old journalism teachings, "Tell 'em what you're gonna tell 'em, tell 'em, then tell 'em what you told 'em." :D

Had I been writing it, I might have expanded a bit upon the "domestic violence misdemeanor" prohibition, and also on the lifetime felony prohibition. Especially on mechanisms for rewarding years of remaining law abiding after a felony conviction by gradually easing the restrictions on firearms possession/carrying. Someone needs to point out that no such mechanism now exists, and that prohibiting possession of a firearm for a middle-aged man who was convicted of an assault while a teenager 20-some years ago should be carefully scrutinized.

Hopefully, your treatise will persuade some courts to accept the inevitable and begin upholding challenges to Constitutionally impermissible statutes. :cool:

May 27, 2012, 12:52 AM
Hey Hypno,

Definitely had to follow a set format (intro, background info on the law, legal analysis, solution, conclusion) which is the format everyone has to follow for us, and I think for law review articles in general.

And yes, unfortunatly I had to punt on Lautenberg and the least restrictive burden argument on lifetime bans. I only had 40 pages to work with, and they already let me go a little bit, but there's only so much leeway to give. I'd probably be close to or over 50 pages by that point.

That said, I was ok with punting on both of those things because the framework I laid out could still lead to the right results, if the principles are followed. I don't like Lautenberg much, not because it denies bona fide abusers access to firearms, but rather because the law can too easily be used offensively, rather than defensively. The arguements of the 7th circuit courts don't lack logic, it's just that it assumes the current way of dealing with the problem (i.e. families won't cooperate with a prosecution when a domestic is a felony, so they make them misdemeanors) is ok. I disagree. When we're talking about fundamental rights, the state has never been allowed to reduce it's own burden in order to make conviction easier. This is a complicated issue, but it can sensibly be tackled to achieve the law's (legitimate) objectives--i.e. to protect victims, not disarm innocent men whose wifes are trying to gain leverage on the advice of their divorce attorneys.

Likewise, I think something less than a lifetime diability is certainly warranted from conviction-based disabilities. But honestly, putting forth a rational argument for strict scrutiny that won't lead to absurd results was definitely first priority. Unfortunately, I had bigger fish to fry there. I could talk about that for awhile.

Anyway, I'm really glad you enjoyed it. Thanks for reading, and thanks for the feedback!

May 27, 2012, 01:10 AM
Given your format and length constraints, you did a magnificent job! Kudos! :cool:

May 28, 2012, 12:09 AM
Anyone else have any thoughts? SSRN tells me a couple dozen of you downloaded it... surely someone other than Hypnogator has an opinion! :)

May 29, 2012, 01:02 PM
Bump, since people are still downloading.

May 29, 2012, 04:05 PM
Outstanding. I love the primary argument about transferring scrutiny guidelines from 1A cases to 2A cases. I am still reading it, though.

May 29, 2012, 09:41 PM
Thanks Madcap! Post back when you're finished!

Thanks for reading

May 29, 2012, 10:30 PM
Especially on mechanisms for rewarding years of remaining law abiding after a felony conviction by gradually easing the restrictions on firearms possession/carrying. Someone needs to point out that no such mechanism now exists . . .That's not true:

May 30, 2012, 05:56 AM
The mechanism exists, but if that information is current (I have no idea), then it is publicly available information that the main avenue to firearms rights restoration is illusory, and has been for 20 years. If avenues for restoration are required in order to satisfy a least restrictive burden requirement, then this 'procedure' would patently fail to meet it.

Pardon, expungment, and set-asides are another option, although I can only imagine the procedures vary wildly between jurisdictions. I would argue that in order to satisfy a least restrictive burden prong, especially in a strict scrutiny context (which under my framework, this is), the law would have to examine certain non-objective criteria, such as clean record since conviction/release for X period of time, in order to get an expungment--at least for firearm rights restoration purposes. I'd also assert that after a certain period of time of remaining law-abiding--I'll throw out 10 years--the state should automatically fail in any attempt to defend an imposition of firearm disabilities. Establishing this kind of post-conviction track record should probably be conclusive proof that the state's concern about your ability to possess a firearm is no longer valid.

I did a quick search of the MN laws on these procedures. Aside from certain violent felonies and sex crimes (which can never be expunged), it appears* that one or more of these avenues opens up to you almost as a matter of right after a certain period of time (5 or 10 years depending on your situation). Drug cases seem to be eligible for expungement as soon as you complete probation :scrutiny: (I'm not opposed to this, except in the firearms rights restoration context... I'm thinking you should probably have to stay clean for awhile!)

*Some of the forms indicate you don't even need to petition the court for expungement after 10 years. Discretionary expungement relief can come earlier, or pardons by the state board (Gov., SC Justice, and AG) are allowed after 5 or 10 years, depending on your crime. Please note that I only looked into this for about 5 minutes, so take this analysis for what it's worth!

June 1, 2012, 01:41 AM
Last bump, as downloads are starting to slow down a little bit.

Almost 70 of you guys have it! Last chance to let me know what you thought!

I hope to hear from some more of you!

Thanks for reading

June 1, 2012, 11:01 AM
I thought the biggest strength was expanding on the idea of the proper scrutiny for 2A cases borrowing the framework from what has become well-established 1A law. SCOTUS's opinion really only mentioned that in passing. I think the overview of firearms law really isn't the greatest, and that your note would have been better served by comparing specific 1A cases to specific 2A case theoreticals.

All in all, though, very admirable work.

June 1, 2012, 12:32 PM
Thanks Macap. I appreciate the feedback! It's good to hear something from all the great people here.

Re: the firearms legal overview: Unfortunately, I was constrained in a couple of respects on this section. It's required to essentially be quite terse. I can't give an overview of all firearms laws, only those that directly pertain to my arguments. I am also not allowed to make any evaluation as to whether they are any good or not in this section, only in later sections. Finally, even within these constraints, I am still required to brush only in the broadest of strokes.

If, however, you meant that I was missing some important element of something you thought should be covered despite those constraints, I'd definitely like to hear more on that!

Re: the comparison of cases: I'm not sure how much you read below the line (I won't assume either way), but there are quite a few important 1A cases that I drew from in order to compare and contrast the principles contained in them above the line. I would not be strictly prohibited from getting into an in-depth analysis of specific cases, which is certainly allowed, although I did have a page limit. Thus, I opted to cover more ground which I felt was necessary to get my overall point across, and let the reader (hopefully a court) read the relevant portion of those cases to evaluate whether my argument was applicable.

I do admit that this was a give and take value judgment on my part, and I can only hope that I made the right decisions to make my piece as persuasive as possible.

Anyway, I'm glad you liked it, and even happier that you took a minute to let me know what you thought.


June 1, 2012, 02:17 PM
Oh, I understand you are constrained by the requirements of the journal. I'm probably biased about the gun law overview, since most of that is old hat to anyone reading your paper from this forum.

June 1, 2012, 04:30 PM
I'm not a lawyer and don't have any feedback, other than that as a layman I thought it was an interesting read. Keep up the good work, sir!

June 1, 2012, 09:12 PM
Hey Diamondback, if you liked it, that's feedback! No legal critique needed, if that's not your thing.

Sweet signature, btw :evil:

Frank Ettin
June 2, 2012, 01:35 AM
Sorry to be late to the party. I just had a chance to download the paper, and I'll be reading it in the next day or two. But I didn't want you to think I had forgotten about it.

Looking forward to reading it.

June 2, 2012, 06:35 AM
Looks great. I haven't read it yet, but will this week. May I assume that your citation formats have been gone over with the usual law review "fine tooth comb?" I am working on a couple of publication pieces, and prefer to copy other folk's formats to sifting throught the Blue Book. Of course, my field, trusts & estates, is not quite so interesting. Good work.

June 2, 2012, 02:41 PM
@Frank, no problem... I figured you guys that were in on the original thread were going to read it sooner or later! Enjoy!

@Bhpruett: Yes, they've been combed through pretty thoroughly except this particular version points to some Cal. Penal Code provisions that have since been updated and reassigned (they say the same thing, but different citation now), so be careful before you just cite to those. That said, the format of those citations are good if you just want to avoid navigating the Bluebook!

There may also be a couple of minor edits now that it's out of my hands. Use caution, since this is not the final copy for publication, and even so, an occasional error can make its way through any LR article!

hugh damright
June 3, 2012, 01:38 PM
It seems well written and may well provide a needed reference.

In my mind, it raises some question about the general nature of incorporation ... could it be that only the fundamental aspects of the RKBA, those which require strict scrutiny, are incorporated ... while other aspects of the RKBA, those which require intermediate scrutiny, remain intrastate matters? For example, a right to carry might be fundamental and federally protected by the 14th Amendment, while the manner of carry may remain an intrastate matter.

Of course, when it comes to the federal government, the idea of the 2nd Amendment protecting various aspects of the RKBA and the strict or intermediate scrutiny tests seem most applicable. But the idea that the 2nd Amendment requires the States to use intermediate scrutiny for less fundamental aspects of the RKBA leaves me wondering.

June 3, 2012, 03:07 PM
That's an interesting question, and one that I hadn't considered, although I would have to say that the answer is probably not.

I don't know of any other fundamental right that is segregated in that way. In fact, I'm not even sure it would be possible to segregate them that way--at least without a serious departure from current jurisprudence.

Think of it this way: how could SCOTUS leave it to the states to determine the constitutionality of indirect burdens to 2A rights (i.e. those only incidentally burdening the core 2A right to SD)... you can't leave the final authority to determine a federal right to state courts! Even if they gave state courts the initial power to make those determinations, the federal courts are ultimately going to have to reserve the power to review those decisions when you get the inevitable nonsense that would come out of your average NY, NJ, MD, IL, CA, HI, etc courts.

Interesting question, but I doubt SCOTUS would play it that way.

If you enjoyed reading about "For everyone that was asking, you can now download my Note on SSRN... Link inside!" here in archive, you'll LOVE our community. Come join today for the full version!