Beyond Elrod: Extending the Presumption of Irreparable Harm to the Second Amendment

In response to gun violence, many states have attempted to implement gun control laws. Some of these gun control laws have been challenged under the Second Amendment, with parties seeking preliminary injunctions to halt these laws’ enforcement until a final judicial decision has been reached. 

In legal disputes over whether to grant a preliminary injunction over various gun control laws, circuits are split as to whether an alleged violation of the Second Amendment is presumptively irreparable, i.e., unable to be adequately remedied after a final judgment. In the First Amendment context, the Supreme Court established in Elrod v. Burns that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” The Court has provided little clarity as to why First Amendment violations unquestionably constitute irreparable injury, as well as to whether the rationale in Elrod extends beyond the First Amendment. 

This Comment argues that Second Amendment violations are entitled to a presumption of irreparable harm because, as with rights protected by the First Amendment, Second Amendment rights are of an intangible and unquantifiable nature that protects against governmental infringement and deterrence. This Comment proposes the following standard to address whether losses of constitutional rights are presumptively irreparable: A constitutional harm warrants a presumption of irreparable harm if (1) the challenged act directly limits an intangible and unquantifiable right or (2) if the intangible and unquantifiable right at issue is not directly limited, there is a threat or existing impairment on that right at the time injunctive relief is sought.