The Second Amendment and Private Law – Article by Cody Jacobs

From Volume 90, Number 5 (July 2017)

The Second Amendment, like other federal constitutional rights, is a restriction on government power. But what role does the Second Amendment have to play—if any—when a private party seeks to limit the exercise of Second Amendment rights by invoking private law causes of action? Private law—specifically, the law of torts, contracts, and property—has often been impacted by constitutional considerations, though in seemingly inconsistent ways. The First Amendment places limitations on defamation actions and other related torts, and also prevents courts from entering injunctions that could be classified as prior restraints. On the other hand, the First Amendment plays almost no role in contractual litigation, even when courts are called on to enforce contractual provisions that directly restrict speech. The Equal Protection Clause was famously interpreted to bar the enforcement of a racially restrictive covenant in Shelley v. Kraemer, but in the years since, courts have largely limited that case to its facts.

This Article reconciles these disparate outcomes to develop a coherent theory of the role constitutional rights play in private law. The Article argues that three guideposts inform whether constitutional rights are applied to limit private law: (1) whether the private law cause of action threatens the core of a constitutional right, (2) whether placing a constitutional limitation on private law would impair other constitutional rights, and (3) whether the private law imposition on constitutional rights was freely bargained for. The Article then applies this framework to the individual Second Amendment right recognized in District of Columbia v. Heller by examining several areas where the right to keep and bear arms could intersect with private law, including negligent entrustment, products liability, and trespass.



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