The Volokh Conspiracy

In a Friday interview with the Washington Post, Jim and Sarah Brady state: "In the first place, lets make it clear we don't want restrictions on law abiding citizens beyond making sure that all gun purchasers undergo a complete and comprehensive background check." (Although they do still support local bans on all firearms if "a locality has voted it in themselves", and state or national bans on firearms which they claim are weapons of war.)

The Brady interview marks, apparently, a repudiation of many proposals which the Brady Campaign (formerly known as Handgun Control, Inc., and before that known as the National Committee to Control Handguns) has previously advocated. Such now-repudiated proposals include:

The "Brady II" proposal from 1994 declaring that ownership of a certain number of guns or gun parts or ammunition constitutes an "arsenal" which should require special licensing and subject the owner to warrantless home inspections.

Mrs. Brady's 1993 advocacy of a "needs-based" licensing system, in which police could deny a prospective gun purchase under the theory that the buyer does not "need" the gun.

So-called "safe storage" laws enacted in several states and cities, thanks to effective lobbying from the Brady Campaign, requiring that guns be locked up, and, in many cases, inaccessible for emergency self-defense. Legislatures which enacted these laws should be informed that the Brady Campaign, although formerly supportive of such laws, no longer supports them.

"One-gun a month laws." Repealed in South Carolina, but still in effect in Maryland, California, and Virginia, as a direct result of Brady Campaign lobbying. With the Brady Campaign now repudiating gun rationing, these laws should be repealed.

Perhaps the Brady Campaign will withdraw from membership in IANSA (International Action Network on Small Arms) which promotes many extreme gun laws which go far beyond the Brady objective of comprehensive background checks; such laws include banning all handguns, banning all long guns which can shoot over 100 meters (that is, almost all rifles), banning all self-loading guns (the Brady Campaign has long insisted that only some self-loading guns should be considered "assault weapons"), and prohibiting gun ownership for self-defense.

If the Brady Campaign takes action to give meaning to its leaders' declarations in the Washington Post, the Campaign will deserve respect from all sides of the gun debate for supporting reform of overly restrictive laws which the Campaign now, apparently, acknowledges were mistakes.

As the George Mason Patriots prepare for the Final Four, and loyal V.C. readers everywhere hope for the ultimate National Championship match-up of George Mason vs. UCLA, I thought that now would be a good time to note some of George Mason's contributions to the right to keep and bear arms.

On September 21, 1774, George Mason and George Washington co-founded the Fairfax County Militia Association, which Mason chaired. When Washington attended the May 1775 meeting of the Continental Congress, he wore the blue and buff uniform of the Fairfax County Militia; Congress appointed him General of the Continental Army and the blue and buff later became the colors of the Continental Army.

In January 1775, the Fairfax County Militia issued Mason's Fairfax County Militia Plan:

A well-regulated militia, composed of the Gentlemen, Freeholders, and other Freemen was necessary to protect our ancient laws and liberty from the standing army...and we do each of us, for ourselves respectively, promise and engage to keep a good Fire-lock in proper Order & to furnish Ourselves as soon as possible with, & always keep by us, one Pound of Gunpowder four Pounds of Lead, one Dozen Gun Flints, and a pair of Bullet Moulds, with a Cartouch box, or powder horn, and Bag for Balls.

1 George Mason, Papers 210-11 (1970), quoted in Stephen P. Halbrook, That Every Man Be Armed: The Evolution of the Constitutional Right 60 (1984).

Mason authored the Virginia Declaration of Rights (June 2, 1776), which stated in article 13:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

Mason wrote the Richmond Antifederal Committee's June 11, 1788, proposal for Bill of Rights to be added to the United States Constitution. The 17th item stated:

That the People have a Right to keep & bear Arms; that a well regulated Militia, composed of the Body of the People, trained to Arms, is the proper natural and safe Defence of a free State; that standing Armys in time of Peace are dangerous to Liberty, and therefore ought to be avoided, as far the Circumstances and Protection of the Community will admit; and that in all Cases, the Military ought shou'd be under strict Subordination to and be govern'd by the Civil Power.

As the Virginia ratifying convention, Mason pointed out:

Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man [Sir William Keith], who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia.

He also warned the convention (June 14, 1788):

The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless--by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia.... But we need not give them power to abolish our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use.

Like many anti-federalists, Mason worried that the present militia, composed of the entire people, might one day be replaced by a much narrower militia:

Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government. If there were a more particular definition of their powers, and a clause exempting the militia from martial law except when in actual service, and from fines and punishments of an unusual nature, then we might expect that the militia would be what they are. [Note: the final two concerns were partially addressed by the Fifth Amendment, which requires Grand Jury indictments before prosecutions for serious crimes, except "in the Militia, when in actual service in time of War or public danger" and by the Eighth Amendment, which forbids "cruel and unusual" punishments for anyone, including people in active militia service.] But, if this be not the case, we cannot say how long all classes of people will be included in the militia. There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered.

Some persons argue that because Mason was so concerned about the militia, and because he was so influential in creating the pressure that led Madison to draft the Second Amendment (and the rest of the Bill of Rights), that the Second Amendment only protects militia rights (and, somehow, the militia rights have now dwindled into only the rights of members of the National Guard while on active duty). Such an interpretation, however, is not consistent with Mason's proposed Richmond bill of rights, which first states "That the People have a Right to keep & bear Arms" and only thereafter adds other items dealing with the militia and with standing armies.

Some George Mason University publications involving the Second Amendment and related issues: Stephen P. Halbrook, The Jurisprudence of the Second and Fourteenth Amendments, 4 Geo. Mason U. L. Rev. 1 (1981); Stephen P. Halbrook, Second-Class Citizenship and the Second Amendment in the District of Columbia, 5 Geo. Mason U. Civ. Rts. L.J. 105 (1995); David B. Kopel, The Brady Bill Comes Due: The Printz Case and State Autonomy, George Mason University Civil Rights Law J.; Stefan B. Tahmassebi, Gun Control and Racism, 2 Geo. Mason U. Civ. Rts. L.J. 67 (1991).

Some notable George Mason Univeristy professors who have written about the Second Amendment: Stephen P. Halbrook (Asst. Prof. Philosophy, 1980-81); Walter Williams (Economics); Nelson Lund (Law), Patrick Henry Professor of Constitutional Law and the Second Amendment; Daniel Polsby (Dean, Law).

Yesterday the Nebraska legislature defeated a filibuster, and passed a Shall Issue law for licensing the carrying of concealed handguns by adults who pass a background check and a safety class. Nebraska's governor has said he will sign the bill into law.

The law does not preempt Omaha's ban on concealed carry; in this regard, the Nebraska law is like Pennsylvania's 1989 Shall Issue law, which allowed Philadelphia to refuse to issue permits to qualified citizens. Later, the statewide success of the Pennsylvania law convinced the legislature to eliminate the Philadelphia loophole. Omaha's loophole will probably be eliminated sometime within a decade.

Here is the nationwide status of the law regarding carrying of concealed handguns for lawful defense:

40 states generally allow such carrying:

No permit needed. 2 states do not require a permit for any adult who is legally allowed to possess a firearm. These are Alaska and Vermont. These states will issue a permit, however, upon application. (See discussion of “reciprocity,” below, for why a person would want a permit.)

"Do Issue." 3 states have statutes which reserve some discretion to the issuing law enforcement agency. These are Alabama, Connecticut, and Iowa. In these states, local law enforcement will generally issue a permit to the same kinds of persons who would qualify for a permit in a Shall Issue state.

"Shall Issue." 35 states, including all states not listed elsewhere. Nebraska (this week) and Kansas (last week) are the most recent states to join this list.

10 states generally do not allow such carrying.

"No Issue." Illinois and Wisconsin have no process for issuing concealed carry permits. Illinois allows certain persons (e.g., law enforcement, security guards) to carry without a permit. By a decision of the Wisconsin Supreme Court, no permit is needed for concealed carry in one's home or place of business. (See my Albany Law Review article for discussion of the Wisconsin and Rhode Island cases.)

"Capricious Issue." 8 coastal states give local law enforcement almost unlimited discretion to issue permits, and permits are rarely issued in most jurisdictions, except to celebrities or other influentials. These states are Hawaii, California, Delaware, Maryland, New Jersey, New York, Massachusetts, and Rhode Island.

The future:

The Wisconsin legislature has twice come within one or two votes of over-riding the Governor's veto of a Shall Issue law. In every state where Shall Issue laws have been blocked by a veto, a Shall Issue law has eventually been enacted. It seems reasonable to predict that Wisconsin will one day become a Shall Issue state.

Rhode Island actually has a Shall Issue law (for issuance by local law enforcement) and a Capricious Issue law (for issue by the Attorney General). The Attorney General has succeeded, at least temporarily, in stifling the local Shall Issue system, but a decision of the Rhode Island Supreme Court suggests that this state of affairs is untenable. All that is necessary to implement Shall Issue in Rhode Island is a new Attorney General with a different attitude, or the proper legal challenge. Rhode Island too seems a likely candidate to become a Shall Issue state.

The Delaware legislature is currently considering a Shall Issue law, and proponents seem optimistic. I suggest that Delaware's politics are, on the whole, more similar to the normal pattern of the 40 issuing states than to the 9 other hold-outs. I expect Delaware to enact a Shall Issue law, perhaps this year, or within the next several years. (UPDATE: The bill has passed one committee, and has enough co-sponsors to pass both houses; the Governor has not yet taken a position. As with Wisconsin, the existence of majority support in both houses makes Shall Issue a near-certainty to become law sooner or later.)

Of the remaining seven hold-outs, three states (New York, Illinois, and California) have previously passed a Shall Issue bill through a single house of the legislature. The passage suggests that Shall Issue, although hardly easy to enact into law, might be accomplished. In all seven of the final hold-out states, it would appear almost impossible to pass a Shall Issue law by a wide enough margin to over-ride a veto.

The pattern in almost all the states with Shall Issue laws has gone something like this: Initial discussions follow a predictable pattern, with proponents promising reductions in the crime rate, and opponents warning of Wild West shootouts. John Lott is discussed, pro and con, in infinite detail.

Over time, the personal testimony of female Shall Issue advocates sways some legislators. Other legislators, looking at the experience of other states, conclude that Shall Issue is, at the least, harmless; the lurid and sweeping predictions of opponents have not come true anywhere. The more states that enact Shall Issue laws, the more that legislators in a hold-out states become open to the idea that Shall Issue is not dangerous. Ohio, Minnesota, and Michigan are examples of states which are not considered strongly pro-gun, and whose enactment of Shall Issue legislation was possible only because so many other states had acted previously. As the number of Shall Issue states rises, so does the possibility of enacting Shall Issue in the dwindling number of hold-outs.

As momentum builds in a given state, the bill eventually attracts the support of all or almost all Republican legislators, and of almost all Democrats with a C rating or higher from the National Rifle Association. Many of the swing votes (the C-rated legislators, who say that they are pro-Second Amendment, but who often vote for gun control laws) are attracted by the objective standards of the Shall Issue system--which, unlike the Capricious Issue system--forbids gun carrying in certain places (e.g., hospitals), sets objective standards about who may not receive a permit (persons with various disqualifying conditions), and (in most states) requires a specific amount of firearms safety training.

Interestingly, Congress passed the Brady Bill 5-government-working-day waiting period for handgun purchases when there were only 22 states that had any kind of waiting period (and in many of those states, the wait was shorter than the Brady wait). As the number of states which regularly issue carry permits climbs into the 40s, the correlation of forces in Congress in favor of a national carry law also increases.

Brady passed in part because it was a "free" vote for some legislators. A legislator from, say, California, who usually but not always supported gun-owners could vote for Brady (earning praise from most of the media) while at the same time doing nothing that interfered directly with the gun purchase rights of his own constituents (since California already had a 15 day waiting period).

Conversely, a legislator from, say, Ohio, who usually but not always supports gun control, can now cast a "free" vote for a national carry law; he can curry some favor with pro-gun interests, while doing nothing to weaken the gun controls in effect in Ohio (which already has a Shall Issue law).

I am not arguing for or against the merits of a national Shall Issue law—merely commenting on the political realities.

For many decades, every state has recognized driver’s licenses issued by any other states. For concealed handgun licenses, the trend is clearly in that direction. As detailed by packing.org, today a permit issued by one state can be used in 28 states, through the principle of “reciprocity.” The new Kansas law will have reciprocity, while the Nebraska law does not. (Often, states with no reciprocity or weak reciprocity add a broader reciprocity provision several years after the enactment of the Shall Issue law.) A number of other states (e.g., Maine, N.H., Conn., Washington, Nevada), although having no reciprocity or limited reciprocity, issue their own permits to non-residents. (Nevada, however, requires that the training be conducted in Nevada.)

The continuing expansion of reciprocity also adds strength to the movement towards a federal Shall Issue law.

Significantly, Congress has also created the precedent, by enacting legislation which allows police officers and retired police from any state, after following certain procedures, to carry firearms in all fifty states.

In addition, I suggest that one day within the next 20 years, Congress and the President will decide that it is anomolous that residents of the District of Columbia are denied the defensive handgun carry rights which are enjoyed by the residents of all (or nearly all) 50 states; Congress will use its authority to legislate for the District of Columbia and will enact a Shall Issue system for residents of the District.

The modern trends towards Shall Issue was started when Florida became a Shall Issue state in 1988; previous Shall Issue bills had been vetoed by Governor Graham, but Governor Martinez signed the bill. The bill was the project of Marion Hammer, the head of Unified Sportsmen of Florida, who later served as President of the National Rifle Association. A few states (such as Washington and the Dakotas) already had Shall Issue laws, but the Florida law was the one that began a national movement.

Hammer was also the prime mover of the NRA’s Eddie Eagle gun safety program, in which a costumed character (similar to Smokey the Bear) teaches young children that they should only be around guns if there is a responsible adult present; if a children find an unattended gun, they should “Stop! Don’t touch! Leave the area! Tell an adult!” The Eddie Eagle program has now been taught to millions of children nationwide.

Hammer’s latest Florida success is Stand Your Ground legislation, affirming that victims of a violent felony do not need to retreat (even in a public area) before using forceful self-defense. As with Shall Issue, there are already some states, such as Utah, with strong protections of self-defense rights, but the 2005 Florida law may begin a national trend in which, every year, a few more states enact Stand Your Ground laws. Indiana and South Dakota enacted Stand Your Ground laws this year, and Georgia and Alabama may also do so soon.

UPDATE: Mississippi enacted Stand Your Ground (a/k/a "Castle Doctrine") this week; the bill applies to homes, cars, and one's place of business (and thus is weaker than the Florida model, just as some states have Shall Issue laws which are more restrictive than the Florida model).

Amnesty International reports this case from Iran:

On 3 January, 18-year-old Nazanin was sentenced to death for murder by a criminal court, after she reportedly admitted stabbing to death one of three men who attempted to rape her and her 16-year-old niece in a park in Karaj in March 2005. She was seventeen at the time. Her sentence is subject to review by the Court of Appeal, and if upheld, to confirmation by the Supreme Court.

According to reports in the Iranian newspaper, E’temaad, Nazanin told the court that three men had approached her and her niece, forced them to the ground and tried to rape them. Seeking to defend her niece and herself, Nazanin stabbed one man in the hand with a knife that she possessed and then, when the men continued to pursue them, stabbed another of the men in the chest. She reportedly told the court “I wanted to defend myself and my niece. I did not want to kill that boy. At the heat of the moment I did not know what to do because no one came to our help”, but was nevertheless sentenced to death.

According to a modern summary of Islamic law:

There is a natural right to self-defense. One may defend oneself from a criminal act that poses an imminent threat to person or property, but only necessary force may be used. An intruder who might be repelled with a stick may not be shot and killed; neither may one pursue an intruder who has retreated and is no longer a threat. Violation of the limits of self-defense is aggression and renders one criminally liable.

Matthew Lippman, Sean McConville & Mordechia Yerushalmi, Islamic Criminal Law and Procedure: An Introduction (Westport, Conn.: Praeger, 1988), p. 56.

The above-quoted scholars appear to be consistent with the view of the nineteenth century Islamic jurist Ulaysh, who "wrote that all jurists have always agreed that Muslims have the right to defend their life and their property." (Quoted from Khaled El Fadl, Rebellion & Violence in Islamic Law (Cambridge: Cambridge Univ. Pr., 2001), pp. 334-35.) El Fadl's quote is consistent with the practice of many Islamic nations of denying dhimmi (non-Muslims) any right to defend themselves against Muslims, or to possess arms. (See Bat Ye'or's books for details.) However, the dhimmi exception to self-defense does not appear to be relevant in the Nazanin case.

So I have two starting questions for commenters: For those of you who can read Persian, is there any evidence from the Iranian press, or other media, suggesting that Nazanin was not actually acting in self-defense, or that her use of deadly force was legally excessive?

Second, for readers familiar with Shari'a law, are there any legal precedents suggesting that a female teenager acted by stranger rapists would not possess the ordinary Muslim's right to self-defense?

Third--and this question is for everyone--are there international law arguments that the Iranian government cannot lawfully abrogate the right to self-defense? Europe's Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, E.T.S. 5, 1955), art. 2 (2)), and the Rome Statute of the International Criminal Court (U.N. Doc. A/CONF.183/9, art. 31) both recognize a right of self-defense, but of course neither document is applicable to domestic Iranian law.

Are there other international treaties which recognize a right of personal (rather than national) self-defense? Are any of these applicable to Iran?

In addition to positive international law, a defender of Nazanin might also argue from customary international law. Below is a sketch of one such argument, based on my own research. I invite commenters with international law expertise to amplify, correct, and otherwise suggest improvements or flaws in the argument.

1. Even in the absence of positive enactments, humans have certain fundamental rights which no government can violate. (See, e.g, Grotius, Vittorio, Locke, Declaration of Independence).

2. In extreme cases, a government which violates those fundamental rights can be overthrown, and the perpetrators of the rights violation can be punished. A person who denies the previous sentence must necessarily conclude that the Nuremberg and Tokyo war crimes trials were illegal, since, for example, there was no positive law forbidding the genocide at the time the Germans and Japanese perpetrated genocide.

3. Even if ex post facto principles about positive law made it unjust to punish some of the Germans and Japanese, it was still lawful for the Allies (even putting aside issues of national self-defense and treaty obligations towards countries such as Poland) to attempt to interfere with on-going violations of fundamental human rights by the Japanese and Germans.

4. Even if there were no right to interfere or punish, a person in, say 1938, could correctly say "The German and Japanese governments are in violation of international law, because they are violating many fundamental human rights of their subjects, including rights which have always been regarded as fundamental by the vast majority of mankind throughout recorded history."

5. Self-defense is a fundamental human right, and has been so regarded by the vast majority of mankind throughout recorded history. For example, the right of self-defense is recognized by ancient and modern Jewish law, by the Catholic law which formed the basis of Western law (and which was predicated on the recognization of self-defense rights by ancient Greece, ancient Rome, and the Byzantines), by the great Protestant religious philosophers who shaped the United Kingdom, by the American revolutionaries, and by all the major religions of Asia.

Note: Although some Christians and Buddhists have believed that a truly enlightened person should not engage in self-defense, non-resistance was always presented as a higher moral choice, and there was no suggestion (at least until quite recently in the West), that the government should forbid self-defense.

6. The above litany of sources recognizing a right of personal self-defense is illustrative, rather than exhaustive. (Commenters are invited to supply additional sources, of the type traditionally cited in international law.)

7. The right of self-defense has been recognized by the overwhelming majority of all legal systems throughout human history. The only known exceptions are those which obviously relate to very special circumstances (e.g., prisoners against guards; soldiers against superior officers), or which, by their very nature, are so odious as to shock the conscience (e.g., Japanese peasants forbidden to resist Samurai; tyrannies; slaves; persecuted religious or ethnic groups). The fact that no known legal system has (outside of special cases) ever denied self-defense rights except in circumstances which are self-evidently odious is further proof that customary law has, from time immemorial, recognized a right of self-defense.

8. The parameters of the right to self-defense have varied over time, but, at the very least, they have always included the right of a chaste woman to resist rape by strangers who have no relationship of any sort with the woman or her family. (The historical exceptions to a woman's right to resist rape are in themselves odious, but they appear to be irrelevant to the Nazanin case.)

9. Deadly force may be used to resist rape, if no lesser force will suffice.

10. The right to resist rape also includes the right to use force to protect a close relative from being raped.

The above statements represent my current understanding, but I welcome clarifications from commenters about circumstances in which the above statements might be untrue--such as legal codes which forbade self-defense, or forbade deadly force as a last resort against a rapist.