The City’s Second Amendment

Authors

Dave Fagundes
Darrell A. H. Miller, Duke Law SchoolFollow

Document Type

Article

Publication Date

2021

Keywords

local government, Second Amendment, corporations, corporate personhood, legal personhood

Abstract

Cities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local regulations. Still others have responded to police violence by moving to demilitarize, disarm, or even disband their police forces. The burgeoning post-Heller legal literature, though, has largely overlooked the relationship between cities, collective arms bearing, and the Second Amendment. In sum, to what extent do cities themselves have a right to keep and bear arms? This Article tackles that question. The Article contests the proposition that cities are bereft of constitutional rights in general, or against their states in particular. The Article challenges this notion by showing that the constitutional invisibility of municipal corporations is rooted in an outdated notion of the city as an artificial entity. The Article then turns to the Second Amendment, questioning the conventional wisdom that it provides solely a libertarian, individual bulwark against state restriction. The Article shows that in fact the right to keep and bear arms has an important collective dimension that promotes safety, and that the city is historically and institutionally situated to advance this Second Amendment feature. Finally, the Article examines how these two insights operate in practice, first by outlining the substantive contours of the city’s Second Amendment, and then by applying the model to contemporary controversies in firearm regulation such as guns in schools, concealed carry, Second Amendment sanctuaries, and the federal Law Enforcement Officers Safety Act. In addition to advancing the novel claim that cities themselves may assert rights to keep and bear arms, the Article also adds to the growing literature on municipal constitutional rights and the institutional framing of the Second Amendment in a post-Heller world.

Citation

Dave Fagundes & Darrell A. H. Miller, The City’s Second Amendment, 106 Cornell Law Review 677-744 (2021)