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Abstract

Recently, the Marquette Law Review published Armed and Under the Influence: The Second Amendment and the Intoxicant Rule After Bruen by Professor F. Lee Francis. In that article, Professor Francis provocatively argues that the Second Amendment protects the right of intoxicated people to carry guns in public. Francis argues that, under the history-focused framework for deciding Second Amendment cases laid out by the Supreme Court in Bruen, there is an insufficient historical tradition to support prohibiting intoxicated people from carrying arms in public. Francis is wrong about the historical tradition. The historical tradition of regulating the intersection of guns and alcohol, the tradition of regulating intoxication and substance abuse generally, and the broader tradition of prohibiting dangerous people from possessing firearms all provide historical support for the constitutionality of modern prohibitions on intoxicated people carrying and using firearms.

This Article will critique Francis’s article in three ways. First, Francis fails to acknowledge the full scope of the historical regulation of intoxicated people carrying firearms, which was extensive, especially during the mid-to-late- nineteenth century, the period that is most relevant to the Second Amendment analysis of state laws. Second, Francis’s article fails to grapple with the ubiquitous general prohibition on public intoxication, which existed during the Founding Era and for much of American history. Third, Francis’s article fails to address the historical tradition of prohibiting firearms possession by those who, like intoxicated people, posed a danger to themselves or others. All three of these traditions provide strong support for the constitutionality of prohibiting firearm possession by intoxicated individuals.

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