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Hastings Constitutional Law Quarterly

Abstract

In the past decade, “gun rights” advocates have attempted to strategically articulate a Second Amendment privacy interest in being free from interference from both governmental actors and private actors with ownership of, access to, or use of firearms. This essay explores why privacy is an appealing framework for these purposes, and how courts have responded to such claims thus far. Part I analyzes privacy as a legal and sociocultural construct, assesses claims that firearms ownership and use are stigmatized, and discusses how privacy doctrine can be a stigma management strategy. Part II examines three cases in which gun rights supporters and organizations have claimed privacy rights: addressing doctor-patient counseling about firearms and firearm safety, disclosure of handgun permit holders’ identifying information, and disclosure of litigants’ identities. This essay concludes that, while most courts have declined to extend privacy protections to Second Amendment activities, they do so in ways that suggest that they are quite sympathetic to Second Amendment concerns, reinforcing the stigmatized nature of the Second Amendment.

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