Legal Scholar Interview Series: Jamie G. McWilliam

Published on December 18, 2024
Duration: 37:14

This interview with legal scholar Jamie McWilliam delves into two critical Second Amendment issues: the 'common use' standard for firearm regulation post-Bruin and the 'dangerousness' standard for disarming individuals. McWilliam explains the historical origins and legal interpretations of 'common use' stemming from US v. Miller and Heller, and its application in the Bruin framework. He also analyzes the 'dangerousness' standard for firearm prohibitions, discussing its historical basis and its relevance to modern laws like felon disarmament, referencing cases such as Range v. Garland and US v. Rahimi.

Quick Summary

The 'common use' standard in Second Amendment law, originating from US v. Miller, assesses if firearms are commonly possessed by law-abiding citizens for lawful purposes. Post-Bruin, its placement within the text-and-history analysis is debated, impacting who bears the burden of proof and how regulations are evaluated.

Chapters

  1. 00:00Introduction: Legal Scholar Interview Series
  2. 00:35Discussing Key Articles: Common Use & Dangerousness
  3. 01:31The Relevance of Common Use After Bruin
  4. 01:45Origin of the 'Common Use' Phrase: US v. Miller
  5. 03:39Heller's Interpretation of Miller's Common Use Language
  6. 04:54Bruin's Clarification of Second Amendment Tests
  7. 06:17Common Use in the Bruin Framework
  8. 08:03Common Use: Textual vs. Historical Inquiry
  9. 09:38Argument for Common Use in Historical Analysis
  10. 13:35Why the Common Use Placement Matters
  11. 16:30Lower Courts' Treatment of Common Use Inquiry
  12. 18:07Supreme Court's Potential Decision on Common Use
  13. 19:42Refining the Dangerousness Standard in Felon Disarmament
  14. 20:02History of Disarmament: Lack of Virtue vs. Dangerousness
  15. 21:12Current Prohibitions on Firearm Possession
  16. 21:53The Range v. Garland Case Example
  17. 24:15Other Challenges to 18 U.S.C. § 922(g)(1) Post-Bruin
  18. 26:21Historical Tradition of Disarmament
  19. 29:54Applying the Dangerousness Standard Today
  20. 34:06Rahimi Decision and its Consistency with Article
  21. 36:12Where to Find Jamie McWilliam's Scholarship

Frequently Asked Questions

What is the 'common use' standard in Second Amendment law?

The 'common use' standard, originating from US v. Miller (1939), determines if a firearm can be prohibited based on whether it is commonly possessed by law-abiding citizens for lawful purposes. Heller and Bruin have further refined its application within modern Second Amendment jurisprudence.

How does the Bruin decision impact Second Amendment cases?

Bruin mandates a text-and-history approach. Courts must first determine if a regulation burdens conduct covered by the Second Amendment's plain text. If so, the government must demonstrate the regulation aligns with the nation's historical tradition of firearm regulation.

Where should the 'common use' analysis be placed in the Bruin framework?

There's debate on whether 'common use' belongs in the textual inquiry (Step 1) or historical analysis (Step 2) of the Bruin test. Placing it in Step 1 shifts the burden to the challenger, while Step 2 places it on the government to justify historical regulation.

What is the historical basis for disarming individuals under the Second Amendment?

Historically, disarmament focused on individuals deemed dangerous, such as Loyalists, Catholics, slaves, and Native Americans, due to fears of rebellion or violence. Modern interpretations, like in US v. Rahimi, emphasize consistency with the principles underlying these historical traditions.

How can one access Jamie McWilliam's Second Amendment scholarship?

Jamie McWilliam's extensive legal scholarship on the Second Amendment is available on his SSRN and Google Scholar pages. Researchers and interested individuals can search his name on these platforms to find and download his published articles.

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