By: Andrew Willinger
The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.
Daniel Slate has now posted his article Infringed, which is forthcoming in the peer-reviewed Journal of American Constitutional History, to SSRN. The article “recovers the meaning of ‘shall not be infringed’ through a detailed historical investigation of what it meant for a right to be infringed at the time of the Bill of Rights’ ratification in 1791.” Slate’s research suggests that
Slate presented a version of his article at the Center’s Firearms Law Works-in-Progress Conference last May and wrote a blog post about the project.
In a new piece in the Penn State Law Review, David Lamb “examines the impact of the so-called ‘smart’ gun, which uses biometric sensors to prevent unauthorized users from firing it, on PLCAA’s exception for design defects.” Lamb argues that, in certain situations, PLCAA’s product-defect exception currently will allow claims “for injuries caused by young children who unintentionally fire legacy guns.” However, “as more gunmakers enter the smart firearm market, competition and economies of scale for the products’ inputs promise to decrease the marginal cost of implementing the smart technology,” Lamb suggests that plaintiffs with potential firearm defect claims will find more success under risk-utility tests.
Daniel D. Slate, Infringed, 3 J. Am. Con. Hist. __ (forthcoming Spring 2025)
Abstract:
The Second Amendment’s operative clause instructs that “the right of the people to keep and bear arms shall not be infringed.” Although the Supreme Court has given careful attention to most of the Second Amendment’s text, its final words—“shall not be infringed”—remain unexplored, despite their identification by the Court as the amendment’s “unqualified command.” Courts and commentators have taken it for granted that to infringe simply means to violate, but a careful study of its meaning is long past due. This Article recovers the meaning of “shall not be infringed” through a detailed historical investigation of what it meant for a right to be infringed at the time of the Bill of Rights’ ratification in 1791. Two primary meanings emerge: to infringe a right meant either (1) to violate a right so completely as to utterly destroy it; or (2) to restrict that right—leaving it intact yet reduced—but in an illegitimate way. Applying the Founding-era legal-historical meanings enables us to better understand the full constitutional text, and if the judiciary is committed to analyzing text, history and tradition as necessary to reaching conclusions in constitutional law, then the historical analysis presented here may be of interest. By the Founding era’s own terms, legitimate restrictions do not infringe the right to keep and bear arms; only illegitimate ones do. If a regulation was made by a representative legislature, aimed at the public good, was not compromised by having a pretextual repressive purpose, was not in conflict with a higher or more fundamental law of our constitutional system, and did not obliterate the right, then that regulation did not infringe the right.
David Lamb, Deadly By Design: Emerging Opportunities To Hold Gunmakers Liable in the Era of Smart Firearms, 129 Penn State L. Rev. 229 (2025)
Abstract:
The Protection of Lawful Commerce in Arms Act (PLCAA), a 2005 federal statute, grants broad legal protections to the gun industry, shielding it from a range of civil liabilities. Gun violence prevention advocates have criticized the law’s sweeping civil immunities for fueling the U.S.’s unprecedented rate of gun-related deaths, which have increased fifty-nine percent since the passage of PLCAA. But innovations in biometric technology, which can now be used to secure guns, highlight a key limitation to PLCAA’s immunity protections.
This Article examines the impact of the so-called “smart” gun, which uses biometric sensors to prevent unauthorized users from firing it, on PLCAA’s exception for design defects. It explores the potential effects of smart guns on courts’ analysis of defective design claims with respect to firearms. Drawing from court decisions addressing the impact of emerging technology as well as child-safety protections on defective design claims, doctrines of criminal intent governing young children, and social science research into unintentional gun deaths caused by children, this Article argues that the advent of smart guns leaves the manufacturers of legacy firearms increasingly vulnerable to products liability claims.
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