Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda:

I now have a pretty clean copy of this forthcoming UCLA Law Review article of mine, and I thought I’d post it and invite comments. There’s still some time (though not a lot) to make corrections, so please let me know about any errors you find. My one request is that before you respond to some of the items I note below, you look at the relevant parts of the article to see whether that response has already been taken into account.

I expect the article will not entirely please either gun rights maximalists or gun rights minimalists. For instance, I conclude that bans on so-called “assault weapons” — bans that I think are entirely pointless — are probably constitutional; not every bad idea is an unconstitutional idea, even where constitutional rights are involved. At the same time, I argue that there should be a right to carry loaded weapons in public (except for a few places). Even if one accepts the correctness of Heller‘s conclusion that concealed carry can be restricted, your right to keep and bear arms for self-defense must generally include your right to have those arms where self-defense is needed, not just to have them at home when you’re out on the street. Whether this idiosyncratic (moderate? extremist in different derections?) position on the constitutional questions (on the policy questions, I’m generally skeptical of gun restrictions) is right or wrong is for you to judge. But I thought I’d note it so that people know what to expect.

Note also that the first part of the article proposes a general analytical framework that can also help think through existing doctrine for some other constitutional provisions — I hope that will be useful even for people who aren’t at all interested in the right to keep and bear arms.

In any case, here is the Introduction:

The Second Amendment, the Supreme Court has held, secures an individual right to keep and bear arms for self-defense. Whether or not the federal right will be applied to the states, at least 40 state constitutions secure a similar right. How should courts translate this right into workable constitutional doctrine?

(Click here to show the rest of the Introduction.)

In this Article, I offer a few thoughts towards answering this question (chiefly in Part I), and apply those thoughts to some areas in which the question will need answering (chiefly in Part II). I sometimes offer my views on how particular gun rights controversies should be resolved, but more often I just suggest a structure for analyzing those controversies and chart an agenda for future research.

In particular, I argue that the question should not be whether federal or state right-to-bear-arms claims should be subject to “strict scrutiny,” “intermediate scrutiny,” an “undue burden” test, or any other unitary test. Rather, as with other constitutional rights, courts should recognize that there are four different categories of justifications for a restriction on the right to bear arms.

1. Scope: A restriction might not be covered by the constitutional text, the original meaning of the text, the traditional understanding of the text’s scope, or the background legal principles establishing who is entitled to various rights.

2. Burden: A restriction might only slightly interfere with rightholders’ ability to get the benefits that the right secures, and thus might be a burden that doesn’t rise to the level of unconstitutionally “infring[ing]” the right.

3. Reducing Danger: A restriction might reduce various dangers (in the case of arms possession, chiefly the dangers of crime and injury) so much that the court concludes that even a substantial burden is justified. This is where talk of intermediate scrutiny or strict scrutiny would normally fit, though, as Part I.C argues, such labels likely obscure more than they reveal.

4. Government as Proprietor: The government might have special power stemming from its authority as proprietor, employer, or subsidizer to control behavior on its property or behavior by recipients of its property.

Paying attention to all four of these categories can help identify the proper scope of government authority. For instance, even if some kinds of gun bans are presumptively unconstitutional, under something like “strict scrutiny” or a rule of per se invalidity, it doesn’t follow that lesser restrictions must be judged under the same test. Conversely, the conclusion that certain kinds of restrictions should be upheld even when they might not pass muster under a demanding form of review, shouldn’t lead courts to entirely reject that demanding review for all restrictions.

Breaking down the possible elements of the constitutional test into these categories can also tell us which analogies from one restriction to another are sound. For example, if the limitation on possession of guns by minors is a matter of scope — stemming from the background legal principle that minors’ constitutional rights are narrower than adults’ rights — this would suggest that the validity of bans on possession by minors offers little support for bans on possession of handguns by 18-to-20-year-olds. On the other hand, if the limitation is a matter of the danger posed by ownership by relatively immature people, then the analogy between under-18-year-olds and 18-to-20-year-olds becomes more plausible.

And laying out these categories can help us notice and evaluate analogies to other constitutional rights. Many of the disputes that arise in the context of gun control debates are similar to disputes that arise in other fields, such as free speech, abortion rights, property rights, and more. Consider, for instance, debates about whether the presence of ample alternative means for self-defense should justify a restriction on one means, whether gun possession may be taxed, or whether waiting periods are constitutional. Understanding exactly why these types of restrictions are upheld or struck down elsewhere can inform the discussion about whether they should be upheld or struck down where gun rights are involved.

* * *

A few notes on the limitations of this Article: First, let me repeat that this Article offers a framework for gun rights, and a research agenda for further inquiry about the constitutionality of some particular gun controls. It does not offer an exhaustive analysis of each regulation, or an answer about which ones are sound. But I hope the framework, and some brief sketches of how the framework would apply in each area, will prove useful to those who are working on such questions.

Second, the Article focuses solely on the right to keep and bear arms for self-defense. The constitutional provisions I discuss may have other components, for instance a right to keep arms that would deter government tyranny, or in seven states a “right to keep and bear arms … for hunting and recreational use.” But those components are left for other articles.

Third, the Article tries to discuss the right to bear arms under both the federal Constitution (whether or not the right is eventually incorporated against the states) and under state constitutions. But state constitutions often have different wording and different histories: For instance, a general discussion of whether waiting periods are constitutional says little about the Florida right-to-bear-arms provision, which expressly authorizes a three-day waiting period. Nonetheless, broadly discussing a multistate law of the right to bear arms — or of search and seizure, civil jury trial rights, and other constitutional rights — can be helpful, so long as we recognize that there may be significant differences among states that override any general theoretical framework we develop.

(Hide most of the Introduction.)