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Regulating 3D-Printed Guns Post-Heller: Why Two Steps Are Better Than One

Published online by Cambridge University Press:  28 January 2021

Thaddeus Talbot  and
Adam Skaggs
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Abstract

This article describes why a constitutional test that relies exclusively on history and tradition for deciding modern firearm regulations is woefully inadequate when applied to modern technologies. It explains the unique advancements in firearm technology — specifically, ghost guns — that challenge the viability of a purely historical test, even if legal scholars or judges attempt to reason by analogy. This article argues that the prevailing, two-step approach, which incorporates both history and tradition, and requires a judicial examination of the purposes and methods supporting a challenged firearm regulation, should apply nationwide. That a dissenting faction of conservative judges seeks to ignore the prevailing approach presents a potentially dangerous path for Second Amendment jurisprudence. This article draws from certain historical gun laws to illustrate the difficult legwork that analogies must do under a purely historical test. It uses the advent of ghost guns as a case study to offer guidance for judges in their rulemaking practices regarding Second Amendment cases.

Type
Symposium Articles
Information
Journal of Law, Medicine & Ethics , Volume 48 , Issue S4: Gun Violence in America: An Interdisciplinary Examination , Winter 2020 , pp. 98 - 104
Copyright
Copyright © American Society of Law, Medicine and Ethics 2020

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