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?
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.
tbw says:
There appear to be one or more typos in the second paragraph of your abstract.
“I apply this framework to analyzing a wide range of restriction”
I would substitute “analyze” and “restrictions.”
March 25, 2009, 1:36 pmPubliusFL says:
A few comments:
At pp 37-38, it would be interesting to see you address the issue of how the “typical possessor” test does not amount to allowing the government to ban whatever it wants, as long as the population is generally law-abiding. Isn’t it the case that if the population is generally law-abiding, once the government bans any weapon, its typical possessor is not a law-abiding citizen? Most law-abiding citizens will comply with the law, and those who do not thereby become criminals.
In your discussion of the “unusual dangerousness test” (pp 40-42), it would be useful for you to discuss how this does not amount to allowing the government power to freeze privately-owned arms at a given technology level. Surely if this approach had been used by the government since the 2nd Amendment was adopted, almost no firearms in common use today would be legal today (semiautomatics, revolvers, heck anything using metal cartridge ammunition and smokeless powder), because all such weapons exceed the “general level of practical dangerousness” (p 41) of, and are “more practically lethal than” (p 42), the types of arms in common use in the late 18th century.
At pp 44-45, you say “the reasons the Court gave for why handguns aren’t protected don’t apply to assault weapons” and go on to list those reasons. First, didn’t the Court rule that handguns ARE protected? Second, these reasons were given by a dissenting justice (Breyer), they aren’t the Court’s reasons. Third, if these advantages of handguns mean that handguns are protected but assault weapons are not, doesn’t that mean that only handguns (at least among firearms) are protected, and not any long guns (shotguns or rifles)? Because considering the listed reasons, handguns have a greater advantage over non-assault-weapon rifles and shotguns than over assault weapons. Therefore, (to paraphrase your statement) “rifles and shotguns are not materially [insert Breyer's handgun advantages here] than are many other guns (handguns) that aren’t prohibited by a ban of all long guns.”
March 25, 2009, 2:12 pmSladuuch says:
I’m curious to know why you don’t think an Assault Weapons Ban would be constitutional. The majority’s ruling in Heller included that handguns were protected because they are “in common use.” The same could be said of many of the weapons that would be banned under an AWB, especially a wide-ranging one such as a blanked prohibition on all semiautomatics.
March 25, 2009, 2:24 pmSladuuch says:
Er, make that unconstitutional. Oops.
March 25, 2009, 2:26 pmKevin P. says:
Shouldn’t an assault weapons ban be subject to an arbitrariness challenge? The Federal AWB prohibited an AR15 rifle with a bayonet lug (mount), while the same AR15 without a bayonet lug was legal. Keeping other features equal, the same applied to a folding or telescoping stock, a threaded barrel or a flash suppressor. How do these features make the rifle more dangerous? Or unusual? Doesn’t this ban exert a chilling effect upon the exercise of the right to keep and bear arms?
Can the government ban the Washington Post because citizens can get the New York Times instead? Can the government ban Air America because the same perspective is available from National Public Radio?
March 25, 2009, 2:36 pmmartinned says:
Still reading, but I would delete the statement about Eisentrager (fn 34 and 35 and the accompanying text). Given the controversy in recent years, that statement stands out like a sore thumb. No need to get even seemingly involved in that discussion. The subject is right-wing enough as it is… ;-)
Regarding that section in general, about how background legal principles affect the scope of constitutional rights, I’m not sure if all the examples hold up. Arguably, the question of rights of prisoners has less to do with background legal principles and more with the relationship between the bill of rights and the provisions in art. I allowing Congress to create and enforce Federal Criminal law in certain areas.
Something similar could be said about the example of protesting on someone else’s land. Even though there is no general statement about property rights in the US Constitution, I still think this example is better viewed as a “clash” between the 1st amendment on the one hand, and the 5th and 14th on the other.
March 25, 2009, 3:24 pmRKV says:
At the risk of redundancy, as I have posted this here before please let me identify what I believe is a fatal flaw in the conception that assault weapon bans are constitutional. One must read another part of the Constitution in context to find it, namely Article 1 Section 8.
Simply put, one of the purposes specified in the 2nd Amendment is the necessity of an armed militia, and a “well-regulated” one at that. Article 1 Section 8 specifies the missions of said militia. Namely “To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.” Legislation which prevents the militia from owning the tools needed to carry out their Constitutionally defined missions cannot be said to be legitimate. Assault weapons are precisely what is needed to carry out (at a minimum) the “repel invasions” portion of the mission. QED
March 25, 2009, 3:28 pmPubliusFL says:
RKV: Your objection is addressed in Prof. Volokh’s introduction:
In other words, this article focuses only on one purpose for the right to keep and bear arms and considers the constitutionality of various regulations only in the context of that one purpose. So the usefulness of assault weapons with respect to other purposes of the right to bear arms (maintaining a militia, preserving the capability of resisting tyranny by force) are beyond the scope of the article. I think that makes the article less useful, but that’s the way it is. It’s important to keep that huge caveat in mind when reading any claims in the article that a given restriction is likely to be “constitutional” — such claims are much narrower than would appear.
March 25, 2009, 3:36 pmPol Mordreth says:
To further expound on what RKV said, the weapons targeted by “assault weapons” bans are ideal for militia use. They are man portable, semi-automatic, relatively lightweight for rifles, and use an intermediate cartridge. Some of them share ammo and magazines with the modern American infantry arm (AR-15), and the others share magazines and ammo with the primary infantry arms of the other powers (AK-47 and L1A1)and can therefore resupply from battlefield scavenge. They are easy to learn how to shoot, reload, and clean; and can carry a fairly large ammo loadout. How can it possibly be constitutional for the congress to ban the militia’s best choice for class of arms based on cosmetic features? Some of those cosmetic features (detachable magazine, pistol grip) are what make the weapon ideal.
Regards,
March 25, 2009, 3:44 pmPol
Pol Mordreth says:
Publius: Thanks, crossposted.
Regards,
March 25, 2009, 3:45 pmPol
RKV says:
I read the introduction, and should have addressed what was (imho) an obvious and to my lights, fatal shortcoming more directly than I did. The social contract behind the Constitution is that we are in this together, and that as the government protects our fundamental right to defend ourselves, we should commit ourselves to its defense jointly, i.e. through militia service. You may be familiar with “An Inquiry Into the Importance of the Militia to a Free Commonwealth” by William H. Sumner. It’s good reading and a nice summary of the ideas of the founding period (it was written in 1823 and addressed to John Adams) on the subject of militias.
March 25, 2009, 3:50 pmPubliusFL says:
RKV, I agree. It’s odd to have an article that focuses so heavily on what’s in all likelihood a secondary purpose of the amendment, making conclusions about constitutionality that probably have to be thrown out once you look to other (arguably more important to its enactors) purposes. It’s a reflection of the historical accident that the self defense purpose was the only one at issue in Heller, the most substantive SCOTUS decision on the 2nd Amendment to date.
March 25, 2009, 3:56 pmPeter J. Persing says:
As I read this paper I think of the old joke about the neighbor who says “Good morning!” and his neighbor responds with “What the hell do you mean by that?”.
You have taken the litigators approach to this subject, which is to reduce every word and phrase to its molecular level and then perform an analysis on the component parts.
The problem with all rules and regulations, which certainly includes the constitution and all statutes, is the way it is interpreted and used by politicians, law enforcement, and the courts. A good example is “Heller” where the dissenting opinions, as Justice Antonin Scalia pointed out, were absolutely ludicrous. It was clear that the highest court in the land was divided not only on Heller, but on the definition of their role as supreme court judges.
In a similar manner I see politicians and law enforcement comply with their interpretation of the letter of the law and totally violate the spirit of the law. What good is it to have a precisely worded definition if the words “reasonable”, “proper”, “public good” etc. allow the meaning to be stretched like a rubber band?
This is why the declaration of independence, the bill of rights, and the original amendments to the constitution were so effective; because they were so clearly stated.
Freedom of speech meant political speech. Freedom to criticize the government, propose changes, and not be shot or imprisoned. It did not mean the right to have gay pride parades or display the crucifix in a bottle of urine.
The right to keep and bear arms shall not be infringed meant just what it says. “Not be infringed” means don’t make it so difficult for the average citizen to keep and bear arms that it discourages them from, or makes it impossible to, exercise that right. Examples are Washington D.C. (still), New York, New Jersey, and Illinois.
Believe you me I have heard all the bar room arguments about private citizens not owning hydrogen bombs, surface to air missiles, etc. What happened to common sense? No one is advocating that, but I believe that a private citizen should be able to own any weapon that is in common use by any service man in the armed forces. That includes selective fire weapons, and many “NFA” states allow this. however, the government has restricted the sale of any new selective fire weapons to the military and law enforcement. So while it is technically possible to own an automatic weapon such as an M-16, they are so scarce that they cost $20,000. That is infringement.
I am afraid that your paper will not add any light to the second amendment controversy, and will only be another source of selected sentences that the combatants can use out of context to illustrate their respective points. I would much rather see an approach such as that taken by Justice Scalia where he explained the logic of the majority and rendered an opinion. However, you, unlike Justice Scalia, are not limited to the case at hand and could render your opinion, and your reasons for your opinion, on all facets of this subject.
March 25, 2009, 3:58 pmRKV says:
After Heller, and hopefully with an favorable result in McDonald v. Chicago or Nordyke, which would incorporate the 2nd under the 14th Amendment (with a strict scrutiny test or better) the next phase of the rehabilitation of RKBA is what I refer to as “militia purpose.” I propose this “militia purpose” as the test which we logically must use to determine if certain arms are protected by the Constitution. Turns out that Miller says pretty much the same thing about sawed-off shotguns if you read Miller honestly (and God knows how hard that has been for some). Given that switchblades have a federal stock number now (they turn out to be pretty useful for paratroopers who want to get out of a chute in a hurry) I expect that a fair ruling would protect even them. Ditto saps and batons and concealable pistols, which our paid employees (i.e. the police) want to keep to themselves here in the PRK given the Article 1 Section 8 mission of “execute (enforce) the laws.”
March 25, 2009, 4:09 pmDan Hamilton says:
Yet again. The Supreme Court side stepped like mad in their interpretation of the 2ed by ONLY looking at self-defense and ingoring anything else.
But that matters little. Your article becomes a waste of time as far as gun rights are concerned.
You allow Gun Registration as Constitutional and think nothing of it. You say “It will not harm self defense” yada yada yada.
That alone makes your article not only a waste of time but activly harmfull to gun rights.
When ever gun registration has been done, confiscation has followed. If you wait to fight until confiscation you have given up far to much ground and put yourself into a corner.
To do as you do “to assume that the government will not confiscate registered guns” is frankly beyond foolish since there are examples from a few years ago of both California and New York doing just that.
I am sorry but how can a person of your knowlege believe anything so outright stupid!
You write as if the anti-gnners were using logic and reason. That they had limited goals. You KNOW that their only goal is the complete elimination of all legal firearms. That they offer no logic or reason only feelings. That the Constitution means nothing to them. They have demonstrated this time after time.
I really expected more from you. This paper HELPS them. Makes their next steps for gun registration easier and more likely because they can point to YOU as supporting them.
I really expected more understanding from you.
March 25, 2009, 4:18 pmKirk says:
This seems quite surprising. I can’t see any reasonable reading of the 2nd Amendment that doesn’t protect whatever the small arms are currently the standard issue to infantry soldiers.
PubliusFL, except Professor Volokh didn’t say “Nothing in the scope of what I’m covering demonstrates that an AWB would be unconstitutional”, he offered a positive affirmation that such a ban could be constitutional.
March 25, 2009, 4:41 pmRKV says:
“I expect the article will not entirely please either gun rights maximalists or gun rights minimalists.” That’s an understatement. From my desk, it’s not about “gun rights” – it’s a lot deeper than that. And I’ll echo some of the comments above about being VERY careful about giving the opposition ammunition when certain conclusions are taken out of context.
March 25, 2009, 5:12 pmfrankcross says:
The militia/assault weapon theory seems reasonable to me. But the implications would be pretty striking, surely including grenades and the like. I don’t think a court is going to go that far.
March 25, 2009, 5:25 pmPubliusFL says:
frankcross: I don’t think a court is going to go that far.
True, sometimes courts are more political than we like to think about, and what’s practical can count for more than the intended meaning of the law. Still, one can hope for an intellectually honest scholarly assessment of the 2nd Amendment to contain an “e pur si muove!”
March 25, 2009, 5:35 pmpintler says:
1)I agree wholeheartedly with you. Heck, I might go farther – among the supplies the Brits were trying to seize at Lexington/Concord were artillery pieces. Buuuut….
2)IIUC, the good professor is suggesting a legal framework given what the court said in Heller. The Heller decision emphasizes self defense, not enabling the militia. Post-Heller, we get to argue about all the nooks and crannies of what is and isn’t legal, and until the court issues a militia related decision, those arguments are going to be phrased in terms of self defense. At least the ones that succeed will be :-).
(You can wish Gura had pushed for a broader decision. Mr. Gura’s opinion was that he pushed for as much as he thought he could get. Given that it was a 5-4 decision, I think he’s right. If you live in most of the country, Heller may not have helped you much so far – but if you live in DC or (probably, eventually) NYC or Chicago, Heller is a huge step forward.)
March 25, 2009, 5:58 pmDilan Esper says:
When ever gun registration has been done, confiscation has followed.
You know, I understand the slippery slope aspects of the gun registration debate, but it seems to me that this statement is more than a bit too categorical. Aren’t there a bunch of jurisdictions throughout the world that have had longstanding gun registration systems where confiscation has NOT taken place?
March 25, 2009, 6:07 pmgreen-grizzly says:
It is scary to think that courts would take seriously the discussion about whether shotguns, pistols and “assault weapons” should be constitutionally protected, given that the discussion shows next to no knowledge about the use of firearms in self-defense. “Assault weapons” have more utility as a defensive firearm than a shotgun or a pistol. They have many of the features that make pistols attractive, such as moderate recoil, compactness, speed and capacity, with a lot more lethality. Pistols are notorious for being unable to stop at attack due to the limited damage they can do relative to long arms. Unlike most pistol and all shotgun rounds, an “assault weapon” such as an AR-15 will not over penetrate walls and kills you neighbors. The light and fast bullet breaks up in walls. Shotguns are large, have limited capacity, and the recoil is difficult for disabled persons or persons of small stature to handle. Compared to a 9mm or larger handgun, the “assault weapon” will have less felt recoil and be much easier to aim accurately.
In addition, if you need a defensive weapon with longer range than a pistol or shotgun, the “assault weapon” is supremely flexible. It can handle things up close and quite far away. While needing to use a defensive firearm at longer than pistol and shotgun range may be rare, such things do on occasion happen.
The article attempts to say “assault weapons” can be replaced by alternatives, which would only be true in the case of the 1994-type AWB. Even in that case, the law could have been interpreted more broadly to include almost all of the substitutes. Certainly subsequent “assault weapon” bans, such as the one in California and the proposals floated in DC, do include all of the substitutes.
While they may scare those unfamiliar with guns, “assault weapons” are the best tool as a defensive weapon when concealment is not necessary.
March 25, 2009, 6:25 pmDan Hamilton says:
So because it is good for some heavly democrat cities we should ignore that ONLY haveing a self defense 2ed means that the anti-gunners have WON HALF THEIR BATTLE.
If you think that any Supreme court that is likely in the next 30 years will go any farther then Heller, I have some sun drenched acres to sell you in Flordia. By then the Self-defense ONLY will be so intrenched that it will be next to imposible to get anything more.
if we are lucky we MIGHT avoid confiscation of weapons unsuitable for self defense such as those nasty so called AW’s and don’t forget Scoped Sniper Rifles. How can Sniper Rifles be used for self defense. Then outlawing lead in bullets because lead is bad for the enviroment and Self defense is just as effective without lead. At some time outlawing reloadable ammo because those reloaders are using LEAD bullets and that’s BAD for the enviroment. Getting to the point of even saying that you don’t need 45 cal or 9mm ammo for self defence that is way overkill. 38 Special is all you need with frangable ammo so you will not endanger people on the other side of walls and such. It just goes on and on.
You see, a self defense 2ed doesn’t offer much protection does it? And people are trying to come up with an “An Analytical Framework and a Research Agenda”.
Heller will be incorperated but that will mean little. Bans in Chicago and New York will go but they will continue like DC.
Mean while the anti-gunners have advanced a mile while losing a foot.
March 25, 2009, 6:30 pmDan Hamilton says:
It is NOT a slippery slope, it is HISTORY.
It just means that the governments have not done it YET. There are far far to many cases where it HAS HAPPENED.
You want to TRUST any Government NOT to confiscate arms when the Founding Fathers DIDN’T. When Califoria and New York already HAVE.
What set off the Americian Revolution? The Brits comming to confiscate arms!
What set off the Texas Revolution against Mexico? The Mexican soldiers comming to take a cannon from Goliad, Texas!
What will set off the 2ed American Revolution? The ATF comming to confiscate arms!
BTW you can take your arguements that there were other causes for these revolts and shove them. Of course there were and will be other reasons! But what caused the shot heard round the world? What struck the spark that set the fires of revolution alight? Confiscation of arms.
If the Democrats would get a clue they could avoid it but they are too stupid. I pray that this will not happen. I hope it will not happen. I will do everything I can to stop it from happening. But I would not bet one cent that it will not happen. It is only a matter of time.
March 25, 2009, 6:54 pmDilan Esper says:
It is NOT a slippery slope, it is HISTORY. It just means that the governments have not done it YET.
Well, but by that reasoning, one could say that “it is a fact that every capitalist economy has fallen to communism”. Because when the reply comes out “well, what about all the ones that exist now but haven’t fallen”, you can come back and say, “well they haven’t fallen YET”.
Look, again, I understand the argument that gun registration makes confiscation easier. (Bear in mind, it is also possible to confiscate without gun registration.) But that’s a lot different from saying that it has happened every time. Especially when it hasn’t.
March 25, 2009, 6:59 pmDan Hamilton says:
Dilan Esper,
You may just be talking semantics. There are ALWAYS arguments that specific examples don’t agree with general statments. That doesn’t mean that the general statment is FALSE. There are always exceptions. DO YOU want to base policy on EXCEPTIONS? Well, Bless your heart. I am sorry that I bothered you.
If you are saying that the US Government is above the confiscation of arms? Well, Bless your heart. I am sorry that I bothered you.
March 25, 2009, 7:23 pmCDR D says:
What, exactly, is an “assault weapon”?
As best as I can tell, they are semi-automatic shoulder arms which are based on an “assault rifle” frame.
So, they function the same way as the century old Winchester Models ’05, ’07, ’10, but they look like modern battlefield weapons which are select-fire.
Is there a rational basis for outlawing something because of its looks rather than its function? If this kind of deception is reasonable, then simply flip it, and many common and popular hunting rifles can be outlawed because of their function.
But everything is a “first step” according to the hoplophobes.
March 25, 2009, 7:31 pmDilan Esper says:
Dan:
You seem to be making a lot of background assumptions here. I am not trying to advance an agenda or justify the government taking away your guns and violating your Second Amendment rights or anything else.
This is a website operated and frequented by lawyers, and we tend to be a rather precise lot. So when you say that “whenever” X has happened, Y has followed, and there are a bunch of counterexamples of Y not following, you are likely to get called out on it.
As I said, there’s a perfectly plausible case to be made against gun registration on the ground that it can facilitate confiscation. But for some reason, you want to make more extreme statements that confiscation always follows from registration, despite the evidence that in fact this hasn’t been the case.
Pointing that error out– and it certainly is an error– is not the same thing as proscribing what the proper (much less constitutional) gun control policy might be. It’s just pointing out an error.
If you were a little more humble about your position, you might acknowledge the error and move on.
March 25, 2009, 7:48 pmsjalterego says:
To all the people complaining that EV is giving the opposition ammunition, please remember, EV is not writing this paper as an advocate. He is trying to examine an issue under established and common principles of constitutional law and interpretation.
There are many people who are quite openly advocates for a particular position. There are also those who put on the mantle of even-handed impartial judge but who secretly subvert the process to achieve a particular end. EV is acting as neither.
EV may not come out where you want him to. However, his job as a scholar is not to provide ammunition for either side or to hide ammunition that either side might want but to address the issue fairly and with intellectual honesty. He would be less a scholar and just a hack if he were to even be concerned about whether his paper is more or less helpful to one side or the other.
His position might be “right” or “wrong” but I really don’t think his process and dedication to honest scholarship can or should be called into question by accusing him of being in the tank for the opposition.
March 25, 2009, 8:21 pmsjalterego says:
It may be beyond the scope of your argument and too difficult a subject to raise in this article but one weakness of the “typical possessor” argument, particularly as it relates to sawed-off shotgunts or to short barrelled rifles is that such weapons have been largely illegal for many years. It is hardly fair to argue that the typical possessor of a sawed-off shotgun is a criminal engaged in criminal behavior when law abiding people do not possess such weapons precisely because it has been illegal. A sawed-off shotgun might be a perfectly reasonable weapon to possess for self defense. The claim that such weapons are largely used by criminals and therefore may be made illegal only exists as a result of the past 70 years of unconstitutional gun legislation.
One problem that courts are going to have to confront as they (hopefully) implement Heller against the states, is that at least since U.S. v. Miller a lot of potentially constitutionally protected behaviour has been improperly proscribed. This has warped public action and perception. The courts should take this into account when determining whether some conduct should be made illegal because is alleged to be outside “normal” or “accepted” or “traditional” practice. If the “traditional” practice arose simply because it was the only legal way to do things during the Miller – Heller interregnum then it shouldn’t be accorded much deference. You address this briefly in your discussion regarding people’s reactions to open carry and concealed carry.
March 25, 2009, 8:38 pmRKV says:
“Since U.S. v. Miller a lot of potentially constitutionally protected behaviour has been improperly proscribed.” Very true statement. We’ve been doing it wrong for so long we’ve forgotten what right looks like.
March 25, 2009, 9:15 pmzippypinhead says:
Professor V: Very meaty analysis… Although I’m looking forward to a reasoned critique of your rather flexible standard of review from Alan Gura or some of the Heller amicus advocates of the “strict scrutiny” standard of review. For that matter, I’d be interested in hearing from general Bill of Rights experts on the way you frame the standard of review for enumerated rights in general. I’m not a First Amendment scholar nor do I play one in court, but I vaguely recall learning a rather different formulation of the standard of review long ago and far away in a distant (law school) galaxy.
One thing that troubles me is your “burden” counter-argument as you apply it to “assault weapons.” You acknowledge that “assault weapons” are functionally indistinguishable from other semiautomatic firearms, and that the definitions that are used in most AWB legislation tend to be based on non-functional criteria. You posit
I would suggest the opposite position is more defensible – that since “assault weapons” are functionally indistinguishable from other firearms, bans limited to that sub-category of arms should fail even under a “rational basis” standard, or at minimum a “rational basis with bite” test (with apologies to Mark Tushnet). Or, to put it differently, the government’s legitimate interests in any category you posit in your article are simply not furthered by an AWB.
And since the criteria for defining “assault weapons” are generally non-functional, we run into the issue of arbitrary line-drawing. The popular Ruger Mini-14 rifle is generally banned by name, although other than having a removable magazine it leaves the factory functionally indistinguishable from any other semiautomatic “varmint” class rifle. And one can easily “dress up” any semiautomatic rifle, even the harmless Ruger 10-22 .22LR plinker (that generations of kids have learned to shoot on), with aftermarket parts that turn it into fully as scary-looking an “assault weapon” as the dreaded AK-47 – if you don’t believe me, look at the ads for 10-22 add-ons in the back of every issue of American Rifleman magazine. I daresay that almost all semiautomatic non-fixed magazine rifles sold today can similarly be “converted” from “legal” rifles to “assault weapons” by the addition of some scary-looking aftermarket parts.
Also, your “burden” argument understates the sweep of any AWB likely to be enacted (not that any are likely to get through the current Congress alive, based on what’s happened to D.C.’s voting rights bill). The 1994 AWB you cite was vastly less inclusive than any of the contemporary proposals. You might want to instead base your analysis on Rep. McCarthy’s much broader AWB bill, H.R. 1022, which seems to be the starting point for most such discussions nowadays. Note the ban on “conversion kits.” Note the added ban on any “semiautomatic rifle or shotgun originally designed for military or law enforcement use, or a firearm based on the design of such a firearm” – the “based on the design of” language arguably sweeps in most semiautomatic rifles and many shotguns that have come to market since WWII. Note the restricted transfer requirements (no more private sales of assault weapons or large-cap magazines). Note the age restrictions.
Finally, you cite over 15-year old statistics suggesting that “assault weapons” (as defined in the 1994 AWB) amounted to only 5% of rifle sales. More current industry statistics I have seen suggest that semiautomatic rifles make up approximately 1/3 of all rifle sales. Under any version of the Heller “common use” gloss, the general category should count as arms protected by the Second Amendment. And since the difference between “legal” semiautomatics and “assault weapons” are either cosmetic and can be changed, or are “based on the design of…” per Rep. McCarthy, I’m not sure the 5% figure can be cited as probative of anything nowadays.
March 25, 2009, 10:38 pmzippypinhead says:
At the risk of being accused of trolling, another thought:
Your argument that AWBs might be Constitutional under a “no undue burden” analysis explicitly rests on “the availability of close substitutes for assault weapons.” This argument, however, is the same argument that D.C. unsuccessfully raised in Heller - that long guns were a close defensive substitute for handguns. Factually, this was not difficult to disprove in Heller.
But then again, the argument that other types of long guns (even semiautomatic ones) are full substitutes for “assault weapons” can also be disproved. For home defense any rifle may arguably be sub-optimal, but a semiautomatic M-4 style carbine or even a WWII-era M1 Carbine are clearly best of breed for those who need or want a defensive rifle. Both of those rifles are banned by name in Rep. McCarthy’s AWB bill. Why are they best of breed for defensive use? Superior maneuverability in tight spaces, high rate of fire, large magazine capacity, and the ability to consistently reach out and touch someone beyond the magical 7-yard distance after which handguns become increasingly problematic. Remember, the M-4 came into its own as THE superior tool for urban house-to-house and room-to-room fighting in Iraq. And what do urban SWAT and hostage rescue teams use for long guns? Various carbine-length “assault weapons,” often chambered in pistol calibers. So simply dismissing the optimal defensive rifle platform as having “close substitutes” may be a bit too glib — and it’s certainly not consistent with law enforcement and military preferences for close-quarters engagement.
March 25, 2009, 10:59 pmRKV says:
zippy, I believe you are on to something here. Simply put, let me state the proposition thusly – what’s good for our employees (which is what the military and the police are) is good for us citizens. While I could spend a long dissertation on the origins of the right to bear arms in Britain, but Joyce Malcom has that well in hand. I do need to reiterate, several of the chief differences between the American RKBA and the Brit version – namely in England you had to be the right religion, you could only possess arms “suitable to your condition” [feudal duties and all the nobility rot] AND you were “infringed” – i.e. Parliament could legislate freely on what arms could be kept and or how they could be borne. Infringed is out by the plain text of the 2nd, and religious tests are pretty clearly out by the 1st, AND this whole business about “condition” is forbidden here (Article 1 Section 8, “no titles of nobility”). By my lights, we are giving “noble” status to our employees by allowing them to possess arms which forbidden to the general populace.
At the end of the day RKBA is all about power and trust. Whom do you trust and who has power?
March 26, 2009, 12:04 amDavid E. Young says:
Since I tend to avoid exclusively legal discussions and stick to historical issues, this is not directed to Prof. Volokh’s article. However, I agree with the concerns expressed by above posters that any conclusion stated by Prof. Volokh indicating “assault weapons” (whatever those might be defined as) can be banned will be repeated out of context over and over by control advocates as proof their position is correct, even though historically it is not. Of course, this is the problem with any written text. It will be interpreted and used by some commentators in ways it was never intended by its author. This is especially true for subjects like the intent of the Second Amendment that are major politicized disputes.
For those interested, I have a series of posts regarding historical errors of fact and interpretation in the Heller amicus brief filed by fifteen professional historians in support of Washinton DCs gun ban. It is at On Second Opinion blog.
March 26, 2009, 12:17 amBama 1L says:
Sarcastro needs to drop by and point out that this thread just proves law students can’t recognize good legal scholarship.
March 26, 2009, 12:23 amKirk says:
RKV,
I can certainly state that, regardless of what particular starting point of trust I might have for a particular person, finding out they wanted to disarm me would certainly take that trust down by several orders of magnitude.
March 26, 2009, 12:36 amDan Hamilton says:
Fine.
Confiscation defined as the government telling the people to turn in arms either registered or not. Active confiscation is not required.
1. Start with governments that allow the general populace to be armed. If they don’t they already only allow arms to those that the governmant approves of so confiscation is not likely. Not a long list. England, Canada, Australia, America, and Switzerland. I am not sure there are any others. (Few Governments don’t like an armed populace.)
2. England, Canada and Australia. Fall into the registration then confiscation camp. While they might not of had outright confiscation (I believe that they have, but I could be wrong), England giving a Life sentance to a man who used a shotgun in Self Defense. Canada sending a man to jail because a fireman saw a broken pistol that wasn’t in his gun safe. And I am sure that it would not take long to show that Australia has the same sort of thing if not outright confiscation. They are to the point that there is no (if any) difference between what they have done and confiscation.
3. Since England, Canada and Australia are the closest in Government and culture to the US their example PROVES the CASE.
4. The only counter example is Switzerland. Amoung Governments Switzerland has ALWAYS been different. While the US has many things in common with Switzerland the culture of Switzerland of being armed to the teeth to keep European wars out of Switzerland is unique. It is starting to change even there. Gun-control groups are active in Switzerland now.
Now unless you can come up with other counter examples. I believe that my general statement sums up the arguement. Admitedly a lawyer would be able to put it in finer language. But a lawyer should have no problem making the case for my general statement.
Of course you can argue that the selection of only governments that allowed the general populace to be armed is to limited. But it is a weak arguement. If the general populace isn’t allowed arms only those people the govenment wants to be armed can have arms. It makes no sence that a government would want to confiscate arms from its supporters.
Is this good enough for you? If not please show me where I am wrong. I am always willing to change my opinions when I find out that they don’t meet the facts.
March 26, 2009, 11:07 ampintler says:
New Zealand (culturally close to the US, guns registered and tightly regulated, but IIUC ‘sporting rifles’ and shotguns relatively widely held).
Finland (all guns registered, but ownership widespread). Argentina.
I concur with Dilan, the RKBA is an issue best discussed in the light of careful reason, not polemics.
March 26, 2009, 12:15 pmKirk says:
Dan,
Since I’m basically on your side here, might I ask you to please stop discrediting us with unsubstantiated, unlinked assertions? I assume you’re referring to Tony Martin here, and if so, the actual situation is far from as you describe.
His serious charge (i.e. the one that originally got him the life sentence—I say “originally” because it was overturned on appeal) wasn’t unlicensed firearms, it was a non-justified shooting. Given that he wasn’t in any real risk of death or serious bodily injury at the time he shot, he could conceivably have been convicted of Murder II right here in gun-friendly Washington State, and if not then voluntary manslaughter would have been a no-brainer.
March 26, 2009, 2:10 pmDilan Esper says:
Now unless you can come up with other counter examples.
In addition to New Zealand, Finland, and Argentina, how about my own state of California? And I believe New York and Massachusetts have similar registration schemes. And how about Canada? As everyone who ever saw “Bowling for Columbine” knows, they own a lot of guns up there. And they have a national firearms registry.
Again, none of this denies the point that registration can facilitate confiscation. It can. And that’s a reasonable objection to registration. But there’s plenty of jurisdictions where there are registries and there hasn’t been confiscation.
March 26, 2009, 3:35 pmDan Hamilton says:
pintler: Thank you, I didn’t think of those.
Kirk: I see by your post that a Link was not needed. When self defense has been srunk to such an extent that it almost disapears, does it really matter what the gun laws are. BTW like in the US they don’t charge the small stuff (illegal weapon) when they charge murder.
You could say unsubstantiated, unlinked assertions about many posts here.
Sorry they all aren’t Primary sources. But they do show gun confiscation so stuff so close to make no difference.
You asked for Links. Here they are.
Australia – wikipedia Gun_politics_in_Australia
Newly elected Prime Minister John Howard immediately took existing gun law proposals developed after the report of the 1988 National Committee on Violence[14]) and pushed the states to adopt them under a National Firearms Agreement, necessary because the Australian Constitution does not give the Commonwealth power to enact gun laws.
The proposals included a ban on all semi-automatic rifles and all semi-automatic and pump-action shotguns, and a tightly restrictive system of licensing and ownership controls. Some discussion of measures to allow owners to undertake modifications to reduce the capacity of magazine-fed shotguns occurred, but the Government decided not to permit this.
Canada – volokh 1134068501.shtml
Hamilton Spectator (Ontario, Canada), Jan. 12, 1999:
[T]he main criticisms [of the new gun registration law] are: One, [critics] fear the slippery slope, that once their guns are registered, they can too easily be taken away. Easily concealed handguns have previously been confiscated without compensation.
England – rkba ca situation_in_uk.html
In 1997 the incoming Labor government banned possession of all handguns after a gunman at a school in the town of Dunblane killed 16 children and their teacher. The ban extended to all handguns an earlier, partial ban instituted by the former administration.
By a deadline in September that year, some 100,000 privately owned firearms were surrendered to the police. Anyone caught in possession of one after that date was liable to a jail term of up to 10 years.
New Zealand – police.govt.nz 1997 review-of-firearms-control
(The Police talk about destroying that 4%)
Registration of about 4 percent of guns — namely automatic weapons, military style semi-automatics (MSSAs) and handguns. No records are maintained of the remaining 96 percent of firearms. [Part 2.2] Essentially the system is a “Licensing/No registration” system. Although this system provides useful control of shooters, even at that level it has definite limitations
Finland hs.fi english Police+confiscate+more+than+10guns+in+crackdown 1135240092506
Helsingin Sanomat has learned that on Tuesday, police confiscated three legal hunting weapons from a home in the west of Vantaa. Police had been tipped off about an online video in which a boy born in 1993 appears holding a shotgun.
Police said that the boy did not point the gun at the camera or make any threats. The boy’s father has permits for the guns. Neither the father nor the son have been questioned yet.
Argentina – comunidadesegura 38538.
March 26, 2009, 4:23 pmThe continuity of the National Plan of Disarmament is a requirement of the social organizations, but also of the towns and cities all over the country. The mayors call for the presence of mobile RENAR centers, to make it possible for citizens, themselves, deliver arms in their possession. “This Plan should reach all the towns in the country, as a voluntary alternative; in addition, the repression of the illegal traffic of firearms should be intensified”, said Carola Concaro, of the Argentinean Network for Disarmament, to En la Mira.
Kirk says:
Dilan,
How is CA a counter-example? They haven’t confiscated everything, far from it, but they have in fact confiscated some firearms.
March 26, 2009, 4:24 pmDan Hamilton says:
Dilan,
I forgot to add after the links. (Sorry I couldn’t get real links to work.)
Please come up with a bunch of Counter examples?
Three more examples California, New York, Connecticut
Californa bayareacriminalattorneys
East Bay Gun Confiscation Defense Attorneys
If you are seeking the return of a firearm confiscated by law enforcement, contact the law firm of Rueb, Motta &Manoukian. We have the experience in defending clients against weapons crimes and securing the return of their property. From our offices located in Concord, we represent people throughout California, with an emphasis on Oakland and the San Francisco Bay Area.
New York ALL THE WAY DOWN THE SLIPPERY SLOPE: GUN PROHIBITION IN ENGLAND AND SOME LESSONS FOR CIVIL LIBERTIES IN AMERICA
Gun registration has laid a foundation for confiscation not only in Great Britain, but also in New York City, where the 1967 registration system for long guns was used in the early 1990s to confiscate lawfully owned semiautomatic rifles
Connecticut Connecticut’s Gun Confiscation Law First in Country.(Brief Article)
Connecticut has become the first state in the country to allow police and the courts to confiscate guns from people who are deemed to present a danger to the community.
March 27, 2009, 11:09 am