The Volokh Conspiracy

Missouri v. Richard was decided earlier this week by the Missouri Supreme Court, solely on the basis of the Missouri Constitution. Missouri law, Section 571.030.1(5) punishes someone who “Possesses or discharges a firearm or projectile weapon while intoxicated.”

Richard did in fact possess a loaded handgun while intoxicated (eventually to the point of unconsciousness) by morphine and amitripyline. He threatened to kill himself with the handgun, and told his wife that if she called the police, he would make the police shoot him.

Richard argued that the statute was overbroad. The Missouri Supreme Court retorted that overbreadth can only be raised in a First Amendment context. (However, some other state courts have applied overbreadth to state constitution arms rights protections. See State v. Blocker, 291 Or. 255, 630 P.2d 824 (1981); City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972).)

In the 1979 case People v. Garcia, the Supreme Court of Colorado dealt with a similar statute. The ruled that the statute only applied to “actual or physical control.” So if a person is drunk in his living room, and owns a gun which is stored in his downstairs closet, the statute would not apply. The Missouri decision is consistent with the Colorado standard, since Richard actually was possessing the handgun.

The Missouri law, by the way, has an explicit exception for self-defense, and there was no claim in the Richard case that the defendant’s gun possession was for self-defense.

A concurring opinion by Judge Fischer says that the Second Amendment is incorporated via the Due Process clause, and that the Missouri statute does not violate the Second Amendment.

From U.S. v. Skoien, decided today:

A grand jury indicted Steven Skoien for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9).... Skoien pleaded guilty but reserved his right to appeal [on Second Amendment grounds] the district court’s denial of his motion to dismiss the indictment....

The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke D.C. v. Heller’s language about certain “presumptively lawful” gun regulations — notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rationalbasis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest.

Skoien was convicted in state court of misdemeanor domestic battery and was placed on probation. About a year later his probation agent found a hunting shotgun in a truck parked outside his home. Skoien admitted he had gone deer hunting that morning and used the shotgun to kill a deer. He argued below and maintains here that prosecuting him under § 922(g)(9) for possessing the shotgun violates his Second Amendment right to bear arms for hunting. He has not, however, asserted a right to possess the gun for self-defense.

As such, the government’s application of § 922(g)(9) in this case requires less rigorous justification than strict scrutiny because the core right of self-defense identified in Heller is not implicated. Applying intermediate scrutiny, we ask whether the government has established that the statute is substantially related to an important governmental interest. No one questions the importance of the government’s interest in protecting against domestic-violence gun injury and death. The dispute here is about the fit between this important objective and § 922(g)(9)’s blanket ban on firearms possession by persons who have been convicted of a domestic-violence misdemeanor. Under intermediate scrutiny, the government need not establish a close fit between the statute’s means and its end, but it must at least establish a reasonable fit. The government has done almost nothing to discharge this burden. Instead, it has premised its argument almost entirely on Heller’s reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that § 922(g)(9) therefore passes constitutional muster. That’s not enough. Accordingly, we vacate Skoien’s conviction and remand to the district court for further proceedings consistent with this opinion.

More thoughts on this, I hope, later today. Thanks to Miguel Larios for the pointer.

Below, my colleague Orin offers his predictions as to whether the Supreme Court will restore the “lost” Privileges or Immunities Clause to constitutional law. He may well be correct in predicting but a single vote for that proposition, but I remember when many predicted Angel Raich would get 0–1 votes for her Commerce Clause challenge to the Controlled Substances Act. Instead, in addition to Justice Thomas’s vote, she also received the support of Chief Justice Rehnquist and Justice O’Connor–in a “marijuana case” no less. True, her challenge did fail, as widely predicted, but she definitely beat the spread.

But note that, by Orin’s count, only one Justice is willing to follow the text of the Constitution. According to him, the others will decide the case based on stare decisis–i.e. their own ancient decisions (Scalia), the potentially revolutionary implications of reviving the actual text of the Constitution (Roberts & Alito, the latter of whom gave a speech just last week on the importance of Justices following the actual text as it appears to the naked eye), his personal “style” (Kennedy), and undesirable results (Breyer, Ginsburg, Stevens & Sotomayor). How sad it is that one can implicitly criticize a brief to the Supreme Court of the United States for relying on the text of the Constitution. Although Alan Gura’s brief does stress both original public meaning and original intent, under the relevant precedent Orin thinks the Court will or should (?) follow, the alternative is not that the Privileges or Immunities has a modern meaning but has no meaning whatsoever!

I wonder how Orin would have predicted the grant of cert, which stated the question presented as follows:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

When choosing between the two pending cases in the Seventh Circuit, why would four Justices grant cert on the McDonald case in which the challenge was focused on the Privileges or Immunities Clause and deny cert on NRA case, which confined its argument to the Due Process Clause? Why would they have rejected the City of Chicago’s proposal which limited the question presented to Due Process?

Faced with this background and the actual question presented, I wonder how would Orin have briefed the case. Would he have offered any of the analysis in his post? Would he have told the Court just to ignore the Privileges or Immunities Clause? Or might he not have assumed as an experienced litigator that the Justices could write a Due Process Clause “incorporation” opinion in their sleep–heck, their clerks could write that opinion in their sleep–and then devoted the bulk of his brief to describing the meaning of the Privileges or Immunities Clause in context? 

Ultimately, Orin’s analysis is based in what he thinks will be the Justices’ dislike for the interpretation of the Privileges or Immunities Clause described in the brief. The conservatives will hate the references to “natural rights” while the liberals will hate the references to “property.” Fair enough. But notice that the brief does not offer Alan Gura’s theory of the Privileges or Immunities Clause. All the phrases to which Orin objects are taken from quotes from the historical sources. Was Gura supposed to conceal these sources from the Court or faithfully report them? Orin may think this case is a hoot, but for the parties and the Court it is serious business.

To see where the references to “natural” and “property” originate consider the rights protected from state discrimination by the Civil Rights Act of 1866, which the Privileges or Immunities Clause was intended, in part, to constitutionalize:

to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property

Or consider this portion of Bushrod Washington’s opinion in Corfield v. Coryell identifying “privileges and immunities” to which Art. IV, sec 2 refers, a quote repeatedly offered in Congress to help identify “privileges or immunities”:

What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.

Washington merely borrowed the canonical formulation of natural rights expressly affirmed in numerous state constitutions at the time of the founding and leading up to the Civil War (each of which became or was admitted as a free state):

Massachusetts: “All men are born free and equal, and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.” New Hampshire: “All men have certain natural, essential, and inherent rights; among which are—the enjoying and defending life and liberty—acquiring, possessing and protecting property—and in a word, of seeking and obtaining happiness.” New York: “We hold these Truths to be self-evident, that all Men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty, and the Pursuit of Happiness.” Pennsylvania: “That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are, the enjoying and defending of life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.” Vermont: “That all Men are born equally free and independent, and have certain natural, inherent and unalienable Rights, amongst which are the enjoying and defending Life and Liberty; acquiring, possessing and protecting Property, and pursuing and obtaining Happiness and Safety.” Ohio: “That all men are born equally free and independent and have certain natural, inherent and unalienable rights; among which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety. . . .” Indiana: (1816): “That the general, great and essential principles of liberty and free government may be recognized and unalterably established; we declare that all men are born equally free and independent, and have certain natural, inherent, and unalienable rights, among which are the enjoying and defending life and liberty, and of acquiring, possessing and protecting property and pursing and obtaining happiness and safety.” Illinois (1818): “That all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, and of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” Iowa (1846): “All men are by nature free and independent, and have certain unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursing and obtaining safety and happiness.” Wisconsin (1848): “All men are born equally free and independent, and have certain inherent rights, among these are life, liberty and the pursuit of happiness. . . .”

This is scary stuff indeed. 

Of course, all that is before the Court is the protection of the right to keep and bear arms. In this case, the Court need not decide how or even whether the other privileges or immunities of citizens should be judicially protected. But the Court now has rich doctrinal resources by which it can protect both the rights enumerated in the Constitution and unenumerated fundamental rights that are as “deeply rooted in our nation’s tradition and history” as are these rights. As the Supreme Court, they may not be as afraid to transfer these constitutional doctrines over to the correct clause as Orin predicts. Of course, that is not likely to happen unless the parties or amici inform the Court of the meaning of the now-lost Privileges or Immunities Clause. The sort of “legal realist” analysis offered by Orin in his post would simply be of no assistance to the Court in reaching its decision. Nor would it help much in oral argument. But who knows? As a mere prediction, it could turn out right, in which case Orin can say he told us so.

Let’s say someone hired me to write an amicus brief in the McDonald Second Amendment case, and my goal was to get the Court to overrule the SlaughterHouse Cases (holding that the Privileges or Immunities Clause is a virtual nullity) and get the Court to hold that the Clause protects a right to bear arms, how would I go about it?

First, I would recount the scholarly consensus that SlaughterHouse was incorrectly decided, in that the P or I Clause was meant to provide substantive protection for individual rights beyond the extremely narrow category of rights enumerated in SlaughterHouse.

Second, I would explain why I think it’s important to decide this case on P or I grounds.  My argument would be that in due process incorporation cases, the Court has consistently (and thoughtlessly) determined that the scope of the right against the states is precisely the same as the scope of the right against the Federal government.  This is problematic in the context of the right to bear arms because of the confusion over what the “militia” language in the Second Amendment means.  Heller came out the “right” way, but by a bare 5–4 majority, with much dispute about whether the Second Amendment was meant to protect an individual right to bear arms.  By contrast, it’s entirely clear that the Framers of the Fourteenth Amendment thought that the P or I Clause protected an individual right to bear arms.  In particular, they understood that African Americans and “carpetbaggers” needed weaponry to protect themselves from assaults by armed Southern terrorist groups.

Third, I would try to craft an argument that would appeal to the Court’s four conservatives, by far my most likely votes.  I would conclude that originalism isn’t  nearly enough–as witnessed by Antonin “Mr. Originalism” Scalia’s appalling concurrence in the Raich v. Gonzalez.  Indeed, it’s unlikely that judicial, as opposed to political, ideology, ever persuades more than a Justice or two on a previously settled issue.

So what are the conservatives’ concerns that need to be addressed? (1) Further undermine Roe v. Wade, and certainly don’t create a free-floating liberty interest under P or I that can be abused by liberals; (2) Don’t bring back the dreaded Lochner.

The argument would go like this: (a) the Court should take this opportunity to start to move its individual rights jurisprudence from the Due Process Clause to the P or I Clause; (b) The problem with the D.P. Clause is that it traditionally prohibits “arbitrary” infringements on liberty, but arbitrariness is in the eye of the beholder, as is what is meant by “liberty,” see in both contexts Roe v. Wade; (c) worse yet, cases like Roe fail to give any real weight to the police power, the traditional brake on the D.P. Clause; (d) by contrast, through historical investigation, we can determine with some precision what rights were considered privileges or immunities of citizens.  Abortion, (right to die, etc.) was not one of them!; (e) Justice Field and Justice Bradley were correct in their SlaughterHouse dissents that one p or i of citizenship is the right to pursue an occupation  free from government-sponsored monopoly, a much narrower right than the later Lochner due process right to be free from arbitrary restrictions on liberty of contract, and a right that goes way back in Anglo-American history; (f) the ultimate holding of SlaughterHouse was still correct, because Louisiana had a legitimate police power interest in ensuring that its waterways didn’t carry disease, and the butchers who sued weren’t driven out of the profession, they just had to work in the safe location dictated by the government and pay a license fee to the slaughterhouse owner.

So, by deciding McDonald on P or I grounds, the conservatives can (1) help ensure the survival of the individual right to bear arms, and ground it in a much less controversial historical context, while leaving more room for federal than for state regulation of firearms; (2) start the process of transferring liberty jurisprudence from the D.P. Clause to the P or I Clause, which should help undermine Roe v. Wade and other rights with no historical basis as of 1868; and (3) allow some room for the Court to engage in serious review of a very narrow category of abusive economic regulations, along the lines of the cases brought by the Institute for Justice (requiring hairbraiders to take a two-year cosmetology course, creating a government-imposed cartel in funeral caskets, etc.)

In short, I would appeal not just to originalism, but to the conservatives’ long-term political self-interest, and affinity for the conservative political coalition that put them in power.

And I should add that I do not in any way mean to disparage or criticize any of those who are writing or have written briefs in this case.

UPDATE: Josh Blackman makes a good point in the comments: if the conservatives don’t define (and limit) the scope of the P or I Clause while they have a majority, the liberals may do so in the future, with very unconservative consequences.

As I mentioned yesterday, the petitioner’s brief in McDonald v. City of Chicago written by Alan Gura asks the Supreme Court to overrule The Slaughterhouse Cases and adopt a very different interpretation of the Fouteenth Amendment’s Privileges or Immunities Clause.  The obvious question is, how many Justices will agree?   My guess: only one.  In this post, I want to peer into my crystal ball and see how each of the Justices (or group of Justices) will react to Gura’s argument.

1) Justice Thomas. I suspect Justice Thomas is Gura’s only vote.  Justice Thomas more or less took Gura’s position in his dissent in Saenz v. Roe a decade ago. He’s likely on board today.

2) Justice Scalia. In contrast to Justice Thomas, Justice Scalia  probably won’t agree with the Gura brief in light of stare decisis.  In speeches about originalism and stare decisis, Scalia often uses the 14th Amendment incorporation doctrine as an example of a line of cases that he thinks was wrong but that he won’t overrule because of all the reliance interests built up around it over the years.  If Scalia won’t overturn the 50-year old incorporation doctrine even though he thinks it was wrong, I doubt he’ll want to overturn the 116-year old Slaughterhouse Cases even if the brief convinces him they were incorrect.  That’s particularly true because the Gura brief advocates a version of privileges or immunities that is so vague it would vest tremendous new discretion in judges  (more on that below).  I just don’t think Scalia is going to want to do that.

3) Chief Justice Roberts and Justice Alito.  Chief Justice Roberts and Justice Alito are also sympathetic to originalism, and may harbor the sense that Slaughterhouse and the incorporation cases were both wrong as an original matter.  But I don’t think they’re revolutionaries, and the brief calls for a revolution.

To see this, it helps to realize exactly what life the brief aims to breathe into the Privileges or Immunities clause.  At various points in the brief, the brief lists the following new rights that the Fourteenth Amendment should be read to protect beyond what it already protects under the Due Process and Equal Protection clauses:

a) “a broad array of pre-existent natural rights believed secured by all free governments.” (p.10)

b) “What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.” (p.17) (quoting Corfield, 6 F. Cas. at 551.)

c) “The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state . . . [and] the elective franchise” (p.17) (quoting Corfield, 6 F. Cas. at 551.)

d) “Natural rights which are those rights common to all men, and to protect which, not to confer, all good governments are instituted.” (p.24) (quoting Bingham)

e) Rights that “are not and cannot be fully defined in their entire extent and precise nature.” (p.25) (quoting Howard)

f) “The right to contract” (p.25) (quoting Rogers).

g) “The natural, fundamental rights, believed to fall under Article IV, Section 2, and the rights codified in the first eight amendments.” (p.26)

Are Chief Justice Roberts and Justice Alito (and Justice Scalia, for that matter) going to want to give the federal judiciary a new power to strike down legislation because it is inconsistent with “natural rights,” including “the right to obtain happiness and safety,” with some of those natural rights undefinable “in their entire extent and precise nature”? I just can’t see that. From their perspective, the Ninth Circuit already makes up lots of stuff as it is. Do you really wanna give them this loosey-goosey undefinable natural rights stuff and let them run free with it? I don’t think so.

I think Roberts and Alito are particularly unlikely to agree with the Privileges or Immunities argument in light of basic judicial restraint principles. The Due Process argument here is pretty straightforward: Heller itself has enough language to make the case that the 2nd Amendment is incorporated under Due Process. It would be a huge break from any traditional concept of judicial minimalism to decide the case by overturning Slaughterhouse.

4) Justice Kennedy. Justice Kennedy is not an originalist, and he basically likes the Court’s existing Due Process jurisprudence. I think he’s a solid vote for incorporation via Due Process, but I don’t see him wanting to change the law in such a radical and far-reaching way under the P or I clause. It’s just not his style.

5) Justices Stevens, Ginsburg, Breyer, and Sotomayor. I suspect the Justices on the more liberal half will read the Gura brief and conclude it’s just trying to resurrect Lochner. The Gura brief envisions a Privileges or Immunities Clause that would include “the right to contract,” the right “to take, hold and dispose of property, either real or personal,” and the right to “an exemption from higher taxes or impositions than are paid by the other citizens of the state.” That sounds like Lochner, which to them is the very epitome of a wrong turn in constitutional law. Plus, they presumably realize that overturning Slaughterhouse is a major goal of libertarian legal activists like the folks at the Institute for Justice who want to resurrect P or I as a way to attack the modern regulatory state. I don’t expect them to help. 

In March 1994, I was in the Georgetown Gilbert & Sullivan Society’s production of Gilbert & Sullivan’s operetta Patience.

You can find a list of the Society’s past shows here; I was also in the same show the next time they produced it, in April 2007. Also, you can find the libretto of the show here.

In the March 1994 production, I played the character of the Major, which is perhaps the smallest part among the male principals. But hey, at least it was a principal.

Who was in the show with me? In the male chorus, playing one of the Heavy Dragoons, was Alan Gura, who represented Heller in D.C. v. Heller, and who’s counsel of record in McDonald v. Chicago, as you can see from the front page of the brief.

Who else was in the show with me? Why, playing the character of the Duke was none other than David Sigale, also McDonald’s lawyer listed on the front page of the brief.

Who else was in the show with me? This isn’t strictly speaking related to the McDonald case, but the character I married in the show, one “Angela,” was played by Alan Gura’s law partner, Laura Possessky.

Have Gilbert & Sullivan otherwise influenced the McDonald case? Well, p. 7 of the brief (p. 25 of the PDF) says that “The Privileges or Immunities Clause was all but erased from the Constitution in The SlaughterHouse Cases.” And, on the next page, it says that “SlaughterHouse’s illegitimacy has long been all-but-universally understood.”

All but!

Surely, this is an echo of the sextet in Patience (see p. 19 of the libretto, i.e. p. 22 of the PDF, here), which I sang together with one of McDonald’s lawyers and the other lawyer’s law partner: “The pain that is all but a pleasure will change / For the pleasure that’s all but pain, / And never, oh never, this heart will range / From that old, old love again!” And MAIDENS embrace OFFICERS. Awww!

Or (see p. 28 of the libretto / p. 31 of the PDF), says Angela, commenting on the Major and the Duke: “Not supremely, perhaps, but oh, so all-but! (To SAPHIR.) Oh, Saphir, are they not quite too all-but?”

Perhaps Gilbert and Sullivan’s influence on the law now extends further than Iolanthe and Trial by Jury!

Last night, Orin noted the filing of the Petitioner’s brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly asks the Court to over-rule Slaughterhouse, Cruikhank, and Presser.

In my view, it’s a superb brief. It’s worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious.

In the brief’s short discussion of Due Process, attorney Alan Gura aptly writes: “A ‘law’ depriving one of life, liberty or property ‘must not have exceeded the limits of legislative power marked by natural and customary rights.’” (quoting Frederick Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 644–45 (2009).) This is an important point; “substantive due process” may be ill-named, but it is founded on legitimate, originalist doctrine.

Many folks have been wondering why the Gura brief concentrates so heavily on the bolder theory (Privileges or Immunities) rather than the one that courts have used over the last century (Due Process). Here’s the answer: After Heller, the Second Amendment Foundation (SAF) and the National Rifle Association each filed separate lawsuits against the Chicago handgun ban. The cases were consolidated in the Seventh Circuit; after the panel ruled, SAF and NRA each filed separate petitions for certiorari. The Supreme Court granted cert. in the SAF case, McDonald v. Chicago. A few weeks later, the Court added NRA to the case as a party. So NRA is now a “Respondent in Support of Petitioners.” The suburb of Oak Park, which had been sued by NRA but not by SAF, was also added as a party.

So as a party, NRA filed its brief yesterday. The lead attorneys on the brief are Stephen Poss (attorney of record), Stephen Halbrook, and others. The NRA brief takes the more conservative approach. It mainly argues for incorporation via Due Process, with only a brief discussion of Privileges or Immunities. NRA does not ask for any cases to be over-ruled, since Slaughterhouse, Cruikshank, and Presser are all P or I cases, and predate the Court’s recognition of selective Due Process incorporation.

Because the Question Presented by the Court asked about both P or I and Due Process incorporation, it was appropriate that one party brief focused on the former, and the other party brief on the latter.

Amicus briefs (including one I am writing) in support of Petitioners are due Monday, Nov. 23. The Chicago and Oak Park briefs are due Dec. 30, since the Court granted them a two-week extension. Amicus briefs in support of the Chicago and Oak Park handgun bans are due one week after that.

When the amicus briefs start appearing a few days, I will blog about the most important or interesting ones.

The opinion is City of Cleveland v. State (Nov. 12), and it rests on (1) state constitutional “home rule” principles, and (2) separation of powers. 

I can’t opine confidently about the first item, which rests on Ohio case law that I’m not familiar with. The analysis seems unsound, since it seems to suggest that comprehensive state deregulatory laws are unconstitutional intrusions on local authority even when comprehensive state regulatory laws are constitutional. But even if I’m right that this isn’t a sensible rule, I’m not sure whether the problem is unsound precedents or unsound interpretation of the precedents. 

On the second item, the analysis seems still dicier, since the court doesn’t really cite any precedents but appears to be coming up with the principle — an unsound principle, in my view — itself: The conclusion is that the law “violates the separation of powers by usurping judicial discretion in the award of attorney’s fees and costs,” and “invites unwarranted litigation and attempts to coerce municipalities into repealing or refusing to enforce longstanding local firearm regulations using the significant burden of financial litigation penalties.” That can’t be right, I think; it is a proper part of the lawmaker’s business, it seems to me, to decide the remedies available in lawsuits, and whether the remedies should be discretionary or mandatory, even when the consequence is “unwarranted litigation” and the pressure to give in to plaintiffs. Still, it’s possible that there’s something about some uncited Ohio separation of powers law that I’m missing here; I know that many states have separation of powers rules that differ from the federal rules.

But what most surprises me about the decision isn’t the substance, but the fact that only one judge signed on to any written opinion — the opinion is labeled as the work of Judge Colleen Conway Cooney, but the other two panel members, Judges Melody J. Stewart and Ann Dyke are labeled as “concur[ring] in judgment only.” 

I realize that some appellate courts decide many cases with no written opinion at all, and that judges (including Supreme Court Justices) sometimes concur in the judgment without an opinion. I also realize that if the judges disagree on the rationale but agree on the result, there might not be a majority opinion, and the three judges might write three separate opinions, each agreeing with the others only in the judgment.

But I’ve never seen a decision holding a state statute unconstitutional in which the majority of the deciding judges didn’t even bother to give any explanation for why they thought the statute is unconstitutional. Is this normal procedure in Ohio? Or is there some other sensible explanation for the situation? Or am I just misunderstanding what happened here?

I should note that a quick check of other recent Ohio Court of Appeals opinions suggests that “concurs in judgment only” is indeed different from “concurs,” and that usually there is an opinion that’s concurred in by two or three judges.

In a recent case in Surrey, England, a man found a black bag in his garden one evening. He looked into the bag, and found that it contained a shotgun. He took the shotgun into his home, and the next day he called the police, and brought the shotgun to the police station. He was arrested for unlicensed possession of a firearm, convicted after a jury trial, and now faces a mandatory sentence of at least five years in prison.

I am asking for commenters who can point to similar cases in the U.K., United States, or elsewhere. For example, a student finds a knife on a playground at school; she picks it up and takes it directly to a teacher. She is expelled for possession of a weapon on school property. I’m not looking only for cases involving weapons.

Also fair game for inclusion are other cases in which the person’s possession of the weapon or other item was patently innocent and transitory. For example, a victim is attacked by someone with a gun. The victim snatches the gun away from the attacker. The victim is criminally prosecuted because he has a previous felony conviction, and therefore is not allowed to possess a gun.

For the cases you describe, please supply a cite, a link, or similar information. Thank you!

The case is Plummer v. United States, decided today.

Several years ago, before D.C. v. Heller, Plummer was convicted of carrying a pistol without a license and of possessing an unregistered firearm. (He was acquitted of the greater offense of carrying a pistol without a license outside one’s home, so the jury essentially found — perhaps inconsistently with the evidence — that he was only carrying the pistol inside his own home.) But both offenses have as an element that the gun be unlicensed or unregistered, and at the time D.C. law did not allow people to get licenses or registrations for newly owned handguns.

The D.C. Court of Appeals concluded:

In light of the handgun registration and licensing scheme in effect at the time of the incident in this case, Mr. Plummer could not have registered his handgun, but registration was a prerequisite to obtaining a license, despite the Second Amendment right to keep a handgun in his home for defensive purposes.... [W]e conclude that Mr. Plummer preserved and had standing to raise the Second Amendment issue as a defense to the criminal charges against him by moving to dismiss the indictment, even though he did not attempt to obtain a registration certificate and license for his handgun prior to his arrest. See Chicago v. Atchison, Topeka & Santa Fe Ry. Co., 357 U.S. 77, 89 (1958) (where the statute “is completely invalid insofar as it applies to [the company], that company was not obligated to apply for a certificate of convenience and necessity and submit to the administrative procedures incident thereto before bringing this action”)....

[But] whether Mr. Plummer could have successfully obtained a registration certificate prior to the imposition of charges in this case is a question we cannot resolve on this record. D.C. Code § 7–2502.03, formerly codified at D.C. Code § 6–2313 (1995 Repl.) contains qualifications for registration which could have been used to determine whether Mr. Plummer would have been disqualified from obtaining a registration certificate. Mr. Plummer has not challenged those qualifications; they include age, criminal history, mental capacity, and vision. Because it resolved the Second Amendment issue in accordance with then existing precedent in this jurisdiction, the trial court did not have an opportunity to decide the disqualification issue which involves a mixed question of fact and law.

Accordingly, for the foregoing reasons, we are constrained to remand this case to the trial court with instructions to hold a hearing to determine whether Mr. Plummer would have satisfied the statutory requirements in D.C. Code § 7–2502.03.

A reader asks whether the ban on soldiers’ carrying weapons for self-defense on military bases would violate the Second Amendment. One could equally ask whether bans on carrying on military bases by non-soldiers — civilian employees, soldiers’ friends and family members, and such — would be unconstitutional.

I think the answer to both questions is “no.” The government has very broad authority, and rightly so, over the military and over military bases. Military members, for instance, have very limited Free Speech Clause rights, as do outsiders who want to speak on military bases. Naturally, such analogies go only so far, and one can certainly point to possible distinctions between Free Speech Clause rights and Second Amendment rights here. But my sense is that courts will conclude that the government has nearly unlimited powers over private gun possession by its soldiers (whether on– or off-base) and on its military bases (whether by soldiers or others), and that this is likely the correct conclusion as a matter of constitutional law. (I think banning gun carrying by soldiers on-base is generally bad policy, but here I’m speaking only about the constitutional question.)

For my thoughts on the broader question of gun possession on government property (such as public housing), see pp. 87–91 of my Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009). But that doesn’t deal with the special extra powers that the government has with regard to members of the military, or military bases.

Robert Wright’s BloggingHeadsTV is often the best place on the Web for highly intelligent conversation about politics and culture. Particularly excellent is a new episode, posted today, in which Wright interviews Bruce Feiler, author of the new book America’s Prophet, Moses and the American Story. Wright is a scholar of the history of religions, so the conversation is thoughtful, challenging, and enlightening. Wright finds himself astonished, by Feiler’s thesis, but admits that upon reading the evidence, it is irrefutable. As the book’s promotional material states:

The Exodus story is America’s story. Moses is our real founding father. The pilgrims quoted his story. Franklin and Jefferson proposed he appear on the U.S. seal. Washington and Lincoln were called his incarnations. The Statue of Liberty and Superman were molded in his image. Martin Luther King, Jr., invoked him the night before he died. Ronald Reagan and Barack Obama cited him as inspiration. For four hundred years, one figure inspired more Americans than any other. His name is Moses.

I will say that Feiler’s thesis is not at all startling to some of us who have studied religious rhetoric in American history. As when in 1858 Rabbi Isaac Mayer Wise, one of the founders of Reform Judaism in America, declared  that the American Independence Day was a second Passover: “the fourth of July tells us the glorious story of the second redemption of mankind from the hands of their oppressors, the second interposition of Providence in behalf of liberty, the second era of the redemption of mankind, the second triumph of right over might, justice over arbitrary despotism, personal and legal liberty over the power of the strongest and most warlike.”

When Benjamin Franklin and Thomas Jefferson were chosen by the Continental Congress in 1776 to design a Seal of the United States, both proposed an image of the Exodus. Adams described the picture: “Moses standing on the Shore, and extending his Hand over the Sea, thereby causing the same to overwhelm Pharaoh who is sitting in an open Chariot, a Crown on his Head and a Sword in his Hand. Rays from a Pillar of Fire in the Clouds reaching to Moses, to express that he acts by Command of the Deity. Motto, Rebellion to Tyrants is Obedience to God.”

Second Amendment advocates had no trouble seeing the connection between the iconic images of Moses parting the Red Sea (in the film The Ten Commandments) with an upraised staff, and NRA President Charlton Heston proclaiming liberty throughout the land while holding high the Kentucky Rifle. Regardless of whether a viewer is inspired or annoyed by the juxtaposition, it’s another example of how, even in the 21st century, the story of Moses and the Exodus continues to play an important role in American public life.

As many readers probably know, McDonald v. Chicago involves a constitutional challenge to the Chicago handgun ban, which raises the issue of whether the individual right to keep and bear arms, which was recognized by the Supreme Court in DC v. Heller also applies to the states. Somewhat amazingly, the Court announced that this was the question presented:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

This indicates that the meaning of the long-ignored Privileges or Immunities Clause is now in play, and that the Court wants to squarely address this constitutional question, as Justice Thomas has long been urging it to do. Rarely do constitutional law cases involve the isolated issue of the original meaning of the text. Heller is one such case; McDonald could be another. Is it really possible that the court will restore not one, but two clauses of the Lost Constitution? 

Next Friday, November 13th, from 12:30–2:30pm, the Georgetown Law Journal will be hosting a program entitled, “A Vain and Idle Enactment: Could McDonald v. Chicago Un-Slaughter the Privileges or Immunities Clause?” The discussants are Georgetown Law graduate Alan Gura, who argued and won the Heller case and is Lead Counsel who will argue McDonald, Kurt Lash, James P. Bradley Chair of Constitutional Law, Loyola Law School (and who has recently accepted an appointment to the University of Illinois faculty), David Gans of the Constitutional Accountability Center, and me. I am coauthoring an amicus brief on the Privileges or Immunities Clause for the CAC.

The program is free and open to the public. Details are here.

UPDATE: Webcast will be available here:

UPDATE: The repeal just passed 2d reading by a vote of 164 to 137! The bill now proceeds to a committee for public hearings. The Canadian Conservative Party has 143 Members of Parliament, so the bill attracted over 20 votes from members of other parties–significantly more than had been expected by Canadian political commentators. Today is a good day for Liberty.

Will take place in the Canadian House of Commons today, at approximately 5:30 p.m., Eastern Time. Bill C-391 is a private member’s bill  (by Candice  Hoeppner of Portage—Lisgar, Manitoba) to repeal Canada’s failed and extremely expensive long gun registry.

Background information about the registry is available in this short presentation from Prof. Gary Mauser, a magazine article by Mauser, and in Mauser’s journal articles on the politics and efficacy of the registry, and in some articles I have written about Canada.

For the last two decades, Canada has been the test bed of the international gun prohibition movement. Repressive ideas from Canada have been exported around the world by the international gun prohibition lobby, which is vastly better at international coordination than the other side.

Repeal of the Canadian registry would, accordingly, be of tremendous global significance. Repeal would also shatter the claim by the Canadian gun prohibition lobby that gun control in Canada is an irreversible ratchet.

If the House votes for repeal today, then there will be committee hearings on Bill C-391, followed by another vote in the House, followed by Senate consideration.

You can follow a webcast of the House of Commons by going here.

NY-23: Winning Democrat Bill Owens was A-rated by NRA (as was Hoffman).

Virginia: Either Deeds (B rating) or McDonnell (A) were sure to be a big improvement over outgoing Governor Kaine. Deeds lost the NRA endorsement by supporting closing of the (non-existent) “gun show loophole.” In the Attorney General race, Republican Ken Cuccinelli (A+) handily defeated a D-rated Democrat who advertised very aggressively on the gun show issue. Incumbent Lt. Gov. Bill Bolling (A+) trounced an F-rated challenger.

In the Virginia House of Delegates, five Republican challengers with A ratings ousted Democratic incumbents rated F,F,B,B,B. A C-rated Republican also unseated an F Democrat incumbent. The House of Delegates already had a fairly solid pro-Second Amendment majority, so the major change in Virginia is a new Governor who, like  former Governor and current Senator Mark Warner (Dem.), will sign rights-enhancing legislation passed by the legislature.

By far the most prominent gun control advocate on the ballot this year was Jon Corzine (F). This summer, Corzine twisted lots of legislative arms to win enactment of gun rationing (“one-handgun-a-month”), a silly law that is even sillier in New Jersey, where every handgun purchase requires advance permission from the local police chief. With Christie replacing Corzine, New Jersey gun owners can hope for benign neglect rather than active hostility. The  New Jersey Assembly appears to be unchanged.

In sum: A bad night for advocates of gun show restrictions. Another fine night (as were election nights 2006 and 2008) for Democrats with A ratings from NRA. And good news for Second Amendment advocates in blue New Jersey and purple Virginia.

Reversing the position of the Bush administration, the Obama administration recently announced support for the global Arms Trade Treaty (ATT), which is currently being drafted by the United Nations. The leading voices for the ATT are the International Action Network on Small Arms (IANSA, funded by George Soros, and run by the Open Society’s former gun control executive, Rebecca Peters) and the IANSA spin-off  “Control Arms.” Proponents of the ATT promise that it will impose effective arms on embargos on human rights violators. In a forthcoming article in the Penn State Law Review,  The Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators, Paul Gallant, Joanne Eisen and I examine the issue. Our article shows that if the ATT were to be implemented as its proponents promise (to proactively embargo arms where there are serious risks of instability), there would have to be dozens of new embargos. Because small arms manufacture is already widespread, and is not technologically complex, most targets of new embargos would be able to manufacture firearms domestically. 

We then study two failed arms embargos: Zimbabwe, and the eastern Democratic Republic of the Congo. Zimbabwe is currently under a European Union embargo, but there is no UN embargo because Mugabe’s principal diplomatic allies, China and South Africa, have blocked UN action.  Moreover, the South African government has flagrantly violated South Africa’s own gun control law (which was imposed by the currently-ruling party), which forbids South Africa to authorize arms transfers to human rights violators. If South Africa will not obey its own laws, there is no reason to assume that it will obey treaty law created by the UN.

The eastern Democratic Republic of the Congo is under a United Nations embargo, impsed by the Security Council. But the embargo has been violated by smuggling conducted by most of the nations which border the DRC, and even by UN “peacekeepers” in the DRC. Thus, the ATT might, at most, lead to more nominal embargos of arms; but nothing in an ATT can have greater force in international law than a Security Council order already does. Accordingly, the ATT will be of little or no use in achieving its purported objective. To the contrary, the ATT may be positively harmful, since it will probably declare a “right” of governments to acquire arms. This “right” could be used to claim that arms embargos outside the ATT system (e.g., unilateral embargos by the US, or the EU) are violations of international law.

Thanks to John Burgess for the pointer.

UPDATE: Just to make this clear, it seems to me extremely unlikely that this is an actual permanent sign — I assume it’s either a Photoshop or a temporary sign put up just for the photograph. If this was a real sign, it would likely be pretty unneighborly and thus much less funny. (I say “likely” rather than “certainly” because one can imagine unneighborliness on the other guy’s part that might be adequate to justify such a response, or for that matter cheerful acceptance of the sign by the other guy as part of the neighbors’ continued good-humored debate on the subject; but that’s all highly hypothetical since, as I said, I doubt that there was actually such a real sign.) The humor is in the idea of the sign, not in the actual execution of such a sign.

That’s the title of my forthcoming article in the Connecticut Law Review; a revised version is now available. The article suggests that, under Heller, bans on guns at schools are constitutional. However, as a policy matter, gun prohibition on campuses turns them into targets for criminals, particularly mass killers. The response of anti-gun groups is to warn about the dangers of 18-year-olds carrying AK-47 rifles to keggers. For the record, I do not think that anyone should take an AK-47 (or any other gun) to a kegger. However, there are sensible policies that avoid the dangerous extremes of creating a cluster of thousands of defenseless victims, or teenagers bringing machine guns to keggers. For example, adult employees of the school who already have been issued concealed carry licenses by the state should not be barred from licensed carry while on campus. A professor at a medical school who lawfully carries a licensed concealed handgun throughout the state is not going to suddenly turn into a violent criminal if he also carries while on campus. 

A Fifth Circuit nonprecedential decision yesterday involved a challenge to the federal limits on 18-to-20-year-olds’ acquisition of handguns, but didn’t need to reach the Second Amendment question:

Defendant-Appellant Cantrell Bledsoe appeals her conviction after pleading guilty to one count of conspiring to make knowing, false, material representations to a federally-licensed gun dealer, in violation of 18 U.S.C. § 371, and § 922(a)(6). For the reasons set forth below, we AFFIRM.

Bledsoe admits to paying a third party to purchase her a handgun from a federally-licensed seller. That third party falsely stated that he was the “actual buyer” of the weapon, thus violating § 922(a)(6). Bledsoe further admits to conspiring with this third party to make these false statements, thus violating § 371.

Bledsoe, who was nineteen at the time of the purchase, argues that the proscription in § 922(b)(1) on the sale of handguns by federally-licensed dealers to people under twenty-one violates her Second Amendment individual right to keep and bear arms, as recently recognized in District of Columbia v. Heller, 555
U.S. —-, 128 S. Ct. 2783, 2822 (2008). Bledsoe further argues that the overall age scheme in § 922 violates the equal protection component of the Due Process Clause of the Fifth Amendment.

We do not need to reach the substance of Bledsoe’s arguments. Bledsoe is not being charged with violating § 922(b)(1), but of conspiring to make a false material statement in the purchase of a firearm, which she admitted doing. The Supreme Court has stated that “a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit. One who elects such a course as a means of self-help may not escape the consequences by urging that [her] conduct be excused because the statute which [s]he sought to evade is unconstitutional.” Dennis v. United States, 384 U.S. 855, 867, 86 S. Ct. 1840, 1847 (1966). Indeed, even assuming the Government could not constitutionally prohibit Bledsoe from purchasing a firearm, “it cannot be thought that as a general principle of our law a citizen has a privilege to answer fraudulently a question that the Government should not have asked.” Bryson v. United States, 396 U.S. 64, 72, 90 S. Ct. 355, 360 (1969). “Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them.” Id. (footnote omitted).

Sounds right to me. For my thoughts on the Second Amendment question raised by restrictions on 18-to-20-year-olds, see my UCLA Law Review “Implementing the Right to Keep and Bear Arms for Self-defense” article, PDF pp. 66–71.

An e-mail from KnifeRights.com reports that the “Senate has passed the conference report for the fiscal year 2010 Homeland Security Appropriations Bill with our amendment to the Federal Switchblade Act intact.” The bill now goes to President Obama for his expected signature. The bill makes technical changes in the definitions of the Federal Switchblade Act. In particular, under the revised statute, a “switchblade” is not: “a knife that contains a spring, detent, or other mechanism designed to create a bias toward closure of the blade and that requires exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure to assist in opening the knife.”

Earlier this year, the Customs Bureau had proposed revising several of its previous rulings; the effect would have been to bring a very large percentage of folding knives under the Switchblade Act. Knife Rights–with strong assistance from the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA) and from the National Rifle Association–led a public mobilization which garnered widespread, bi-partisan congressional support. At first, the citizen activism resulted in Customs halting its proposed regulatory change. Because the Switchblade Act’s original langauge is very broad, Knife Rights then worked for a permanent resolution to the problem, by clarifying the statute.

A citizen group with a shoestring budget, Knife Rights was founded in 2006. Today’s action is an impressive accomplishment for such a new organization.

United States v. Dorosan (unpublished), decided Wednesday by the Fifth Circuit, upholds a ban on bringing handguns onto U.S. Postal Service property. Here’s the key legal discussion:

First, the Postal Service owned the parking lot where Dorosan’s handgun was found, and its restrictions on guns stemmed from its constitutional authority as the property owner. See U.S. Const. art. IV, § 3 cl. 2; United States v. Gliatta, 580 F.2d 156, 160 (5th Cir. 1978). This is not the unconstitutional exercise of police power that was the source of the ban addressed in Heller. See 128 S. Ct. at 2787–88 (noting the laws in question “generally prohibit[ed] the possession of handguns” anywhere in the city).

Moreover, the Postal Service used the parking lot for loading mail and staging its mail trucks. Given this usage of the parking lot by the Postal Service as a place of regular government business, it falls under the “sensitive places” exception recognized by Heller. See Heller, 128 S. Ct. at 2816–17 (holding that “nothing in our opinion should be taken to cast doubt on ... laws forbidding the carrying of firearms in sensitive places such as schools and government buildings ....”).

Finally, the Postal Service was not obligated by federal law to provide parking for its employees, nor did the Postal Service require Dorosan to park in the lot for work. If Dorosan wanted to carry a gun in his car but abide by the ban, he ostensibly could have secured alternative parking arrangements off site. Thus, Dorosan fails to demonstrate that § 232.1(l) has placed any significant burden on his ability to exercise his claimed Second Amendment right.

The reasoning, I’m afraid, is pretty sketchy; it may well be, for instance, that the Second Amendment rule applicable to the government acting as proprietor should be less protective than the rule applicable to the government acting as sovereign, controlling behavior on private property. That’s certainly so in large measure for the First Amendment, the Fourth Amendment, and substantive due process. But it doesn’t follow that there’s no protection offered by the Second Amendment there; that, I think, should take more argument. Nor is it clear that the “sensitive places” exception from Heller should cover parking lots as well as buildings — Heller itself, of course, was quite opaque about the scope of this exception, but I wish that courts applying it went into somewhat more analysis about what makes a place “sensitive” enough to justify gun bans. (For my further, though inconclusive, thinking on this sort of restriction, see Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1529–33 (2009) (PDF pages 87–91). For my criticism of appeal to the federal government’s constitutional powers as a justification for restricting constitutional rights, see here.)

This is an unpublished opinion, and unpublished opinions are often sketchy because they’re not intended to be precedential. But these days unpublished opinions are often quite influential, especially in the absence of published opinions on point. Plus I would think that the question of the Second Amendment on government property, which has not been discussed much by circuit courts, and in particular by the Fifth Circuit, is the sort of new issue that should indeed merit a published opinion.

Note that the last paragraph I quoted from the opinion suggests that the Fifth Circuit might well be open to the claim that the Second Amendment protects a right to carry on public streets and sidewalks, or at least in one’s car on public streets. The court’s conclusion here is simply that this right is not materially burdened by requiring gun carriers to park off property (and thus walk unarmed from their car to the lot).

 So argued the eminent Fourth Circuit Judge J. Harvie Wilkinson, III, in Of Guns, Abortions, and the Unraveling Rule of Law, recently published in the Virginia Law Review. In Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III, Nelson Lund and I disagree, arguing that none of Judge Wilkinson’s comparisons to Roe are accurate, and that Heller is no more of an “activist” decision than any other decision protecting an enumerated right. The final version of our article, forthcoming in the University of Virignia Journal of Law and Politics, is now available on SSRN.

The decision is here, and includes extensive analysis of 19th and early 20th century state laws (and court decisions upholding them under state constitution RKBA provisions) against juvenile handgun possession, or sale of handguns to juveniles. The decision also rejects a challenge that the federal ban on simple possession in one’s own home exceeds congressional authority under the power to regulate interstate commerce. In Taking Federalism Seriously: Lopez and the Partial Birth Abortion Ban Act, 30 Connecticut Law Review 59 (1997), Glenn H. Reynolds and I argued that the interstate commerce power should not be used to regulate intrastate activity, especially activity involving controversial social issues like firearms or abortion. In a 1999 Issue Paper for the Independence Institute, I wrote a brief section (Part VII) which presents some policy arguments against the federal aw. As you’ll see by reading the First Circuit case, there are good reason why the juvenile delinquent should not have owned a gun. But I that there is a less restrictive alternative than the federal approach.

In a new podcast from iVoices.org, I explain McDonald v. Chicago to Independence Institute President Jon Caldara. This is an 11 minute audio, which presumes that the listener is entirely new to the whole idea of incorporation. If you’ve got much more time on your hands, here’s an 86 minute video of my presentation on essentially the same subject in early September to the Triple Nine Society. That presentation too presumes no prior knowledge of the subject, but it spends a long time taking setting out the background, from Barron v. Baltimore, to Reconstruction, to substantive due process, to the present. Sophisticated watchers will note that I mistakenly said “Privileges and Immunities” sometimes when I should have said “Privileges or Immunities.” And I usually referred to the impending Supreme Court case as NRA v. Chicago, expecting that that Court would grant cert. in both NRA v. Chicago and McDonald v. Chicago, and the that popular name for the consolidated cases would probably be the former. I was wrong, as the Court granted cert. in McDonald only, and has made no decision in NRA, perhaps keeping that case in reserve in case some unexpected problem developed with McDonald. The very beginning of the video is cut, so it opens a minute or two into the presentation.

So reports a press release posted at ScienceDaily.com, which also says,

The study estimated that people with a gun were 4.5 times more likely to be shot in an assault than those not possessing a gun.

“This study helps resolve the long-standing debate about whether guns are protective or perilous,” notes study author Charles C. Branas, PhD, Associate Professor of Epidemiology. “Will possessing a firearm always safeguard against harm or will it promote a false sense of security?” ...

Penn researchers investigated the link between being shot in an assault and a person’s possession of a gun at the time of the shooting. As identified by police and medical examiners, they randomly selected 677 cases of Philadelphia residents who were shot in an assault from 2003 to 2006. Six percent of these cases were in possession of a gun (such as in a holster, pocket, waistband, or vehicle) when they were shot.

These shooting cases were matched to Philadelphia residents who acted as the study’s controls. To identify the controls, trained phone canvassers called random Philadelphians soon after a reported shooting and asked about their possession of a gun at the time of the shooting. These random Philadelphians had not been shot and had nothing to do with the shooting. This is the same approach that epidemiologists have historically used to establish links between such things as smoking and lung cancer or drinking and car crashes.

This was promptly echoed in the Philadelphia Daily News.

Conspicuously missing from the press release and the news story were two critical limitations that were admitted in the original study. These qualifiers mean that the press release headline, as well as all the other statements and implications of causation, were quite mistaken. Perhaps defensive possession and carrying of guns helps protect the possessor and carrier, and perhaps it doesn’t. But the study sheds virtually no light on the subject.

1. To begin with, there’s the obvious causation/correlation problem. Maybe, as the authors speculate, carrying a gun increases your chances of being shot with a gun (as suggested by the framing of the issue as “whether guns are protective or perilous”), or at least fails to decrease them (“guns did not protect”). Or maybe a third source — perhaps some people’s being the targets of death threats, or being in a dangerous legal line of work, or being gang members or drug dealers — causes both higher gun carrying among those people and higher risk of being shot.

By way of analogy, we don’t suggest that pacemakers cause heart attacks, or don’t protect against heart attacks, just because we find a correlation between the presence of pacemaker and the incidence of heart attacks. Obviously, people might get pacemakers precisely because they’re at risk of heart attacks. Well, people might get guns precisely because they’re at risk of attack. (Stewart Baker makes a similar point.)

One can try to control for this in some measure — but while the study controls for some relevant attributes (race, sex, age, neighborhood, having a “high-risk occupation,” and having at least one arrest on one’s record), it leaves a vast range of factors uncontrolled. You’d think that gang members are more likely than others to carry guns and to get shot, even controlling for the presence of an arrest record. (Lots of law-abiding people carry guns, but I expect that more gang members do.) But the study doesn’t control for that, or for many other things.

Let me illustrate this with a deliberately oversimplified model. Let’s begin by assuming a total population of 100,000, that’s divided into two groups, a 10% high-risk group and a 90% low-risk group. Let’s say that the high-risk group has a 60% risk of being attacked, and as a result 40% of its members carry guns. And let’s say that the low-risk group has a 5% risk of being attacked, and as a result 3% of its members carry guns. Let’s also imagine a total population of 100,000 (just to make the numbers easier), and let’s assume that possessing a gun has a modest protective effect for both groups — it reduces the risk of being injured when attacked from 75% to 60%.

Here’s what this turns out yielding, with “A” meaning “armed subgroup” and “U” meaning the unarmed subgroup.

The result: The armed subgroup has 3.5 the risk of injury compared to the unarmed subgroup, and the relative odds ratio between them is 4.29. And this is so even though in the model gun possession decreases the injury risk for both the high– and the low-risk group.

Naturally, this is just a model; the real numbers are likely very different from the ones I give here, and in fact no-one knows what the real numbers are. (The model also doesn’t precisely fit the numbers in the study, though I’m pretty sure one can make a similar model that would fit them more closely.) My point is that one just can’t infer from an odds ratio of over 4 to the judgment that “guns did not protect those who possessed them,” much less that they were actually “perilous” to the possessors. The high odds ratio is just as consistent with the model I describe as with a model where gun possession increases the risk of injury.

2. But wait, there’s more. The research model works only to the extent that you actually know who possesses guns and who doesn’t. Both the cases (people who were shot) and the controls (people who were called on the phone) might want to conceal their gun possession. The cases might have thrown away their guns before the police arrive (sometimes easy, sometimes hard or dangerous). The controls might have lied to the stranger who calls them to ask them, “Where were you at 10:30 pm two nights ago?,” and “Were you possessing a gun at the time?” (always easy and safe).

And both the cases and the controls might have plenty of reasons to lie. They might have been possessing guns in public without a concealed-carry license. They might have been felons who didn’t have the right to possess a gun even at home. (People with arrest records made up 53% of all cases and 37% of all controls; the study doesn’t tell us how many had felony conviction records, but I suspect that quite a few of those with arrest records did.) Or they might not be sure what the questioner is getting at. And that’s true even if the questioner claims that he’s just an academic researcher.

Fortunately, the study helpfully tells us what would happen if there’s concealment of gun ownership by some fraction of cases and controls — though of course the press release and the newspaper article are silent about this. If only 1% of controls and cases who are reported not to have had guns are randomly recoded to having guns, two of the three results (“all gun assaults,” “gun assaults where victim had at least some chance to resist,” but not “fatal gun assaults”) end up yielding statistically insignificant results. If 3% are so recoded, all three results lose statistical significance.

If we assume that 1% of controls were concealing their gun possession and 0% of cases were concealing it — not implausible, since it’s easier for a control to conceal gun possession than for a case to do so (since the cases may be too injured to get rid of the gun, may need a gun for continued self-defense, and in any event are the subjects of a police investigation in which the police might learn the truth) — all three results lose statistical significance. The numerical value of the non-significant odds ratios falls as well; if 5% of controls conceal their gun possession buy 0% of cases do, the odds ratio falls to 2, which of course reflects a considerably lower relative risk. And these are pretty low percentages of false reporters, given the incentives that many people might have to hide their gun possession.

And all this is in addition to the possible confounding factors discussed in item 1 above. If there were no such confounders, then perhaps even a low odds ratio might be telling, or perhaps even a statistically insignificant odds ratio above 1 might in some measure undermine the “guns as protective” theory. But these two problems put together — the possibility that the result stems from the existence of a high-risk group whose members are especially likely both to carry guns and be the targets of attack, and the possibility of even slight misreporting dramatically affecting the results — make the study highly uninformative.

So it’s possible that gun possession was “perilous,” in the sense of increasing the risk of the possessor’s being injured. It’s possible that it “did not protect those who possessed guns,” in the sense that it didn’t reduce the risk of the possessor’s being injured. But it’s also possible that it was “protective,” in that it reduced the risk of the possessor’s being injured, but this result is swamped by the other phenomena I point to. The study doesn’t give us much extra information about which theory is correct. And yet it is publicized, and it’s reported, as if it did robustly show the causal relationship.

if such open carrying in that place is generally not a crime. So holds St. John v. McColley (D.N.M. Sept. 8, 2009), which grants summary judgment to the seized person on his Fourth Amendment claim:

Defendants lacked a justifiable suspicion that Mr. St. John had committed a crime, was committing a crime or was about to commit a crime. Indeed, Officer McColley conceded that he did not observe Mr. St. John committing any crimes and that he arrived at the theater with the suspicion that Mr. St. John was merely “showing a gun”, which is not illegal in the State of New Mexico. Nor was there any reason to believe that a crime was afoot. When they found him, Mr. St. John was peacefully sitting through the previews for his second movie of the day. Officers had no reason to believe that Mr. St. John had been, was, or would be involved in any criminal activity whatsoever. [Footnote: Defendants contend that Mr. St. John was about to commit a crime because, had he refused to comply with their request that he leave the premises, he would have been trespassing. If accepted, this argument would significantly erode Fourth Amendment protections. Because the Court finds no jurisprudential support for Defendants’ novel contention, no further discussion of it is necessary.] ...

Moreover, Mr. St. John’s lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention. For example, in United States v. Ubiles, 224 F.3d 213 (3rd Cir. 2000), the Third Circuit found that an individual’s lawful possession of a firearm in a crowded place did not justify a search or seizure. In Ubiles, officers seized Ubiles during a crowded celebration after they received a tip that he was carrying a gun. Officers did so even though no applicable law prohibited Ubiles from carrying a firearm during the celebration. Holding that the search violated Ubiles’ Fourth Amendment rights, the court noted that the situation was no different than if the informant had told officers “that Ubiles possessed a wallet . . . and the authorities had stopped him for that reason.”

The Tenth Circuit has also dealt with this question. In United States v. King, 990 F.2d 1552 (10th Cir. 1993) the Tenth Circuit found that an investigatory detention initiated by an officer after he discovered that the defendant lawfully possessed a loaded firearm lacked sufficient basis because the firearm alone did not create a reasonable suspicion of criminal activity.... Though the King court ultimately found that King’s detention was non-investigatory and could, thus, be justified under the officer’s community caretaker function while he advised King of the hazardous conditions that his honking created, the King rationale does not apply here because Defendants had no legitimate reason to engage Mr. St. John in the first place.

More broadly, Defendants’ actions are not protected by the community caretaker exception because they had no basis for believing that anyone’s safety was at risk. Defendants simply received a report that an individual was carrying a firearm in a location where individuals could lawfully carry firearms. They received no indication that Mr. St. John was behaving suspiciously or in a threatening manner. When Defendants arrived, they found Mr. St. John sitting peaceably in the Theater preparing to watch a movie. They had no basis for believing that Mr. St. John’s use of the weapon was likely to become criminal, cause a public disturbance or pose a threat to safety. Nor did anyone seem particularly alarmed by Mr. St. John’s weapon. Indeed, the record does not reveal that anyone—including the lone customer who spoke to Officer McColley about Mr. St. John’s gun—was even concerned enough to have left the Theater as a result.

The case has since been settled, so there will be no appeal.

In working on my article on the regulation of stun guns and irritant sprays, I came across this editorial from the Annapolis Capital, June 27, 1985:

Council Should Ban Stun Guns

Guns often fall into the wrong hands or are misused. Why make it possible for people to misuse a new technology weapon, the electric stun gun?

County Council members Carole B. Baker and David G. Boschert are proposing that the sale, possession or use of stun guns be prohibited for private citizens in Anne Arundel. We think the council should go one step further and ban the use of stun guns by on-duty police officers as well. That position is endorsed by Annapolis Police Chief John C. Schmitt. State, county and city law enforcement officers currently are not permitted to carry stun guns on duty, and we don’t think they need the weapons to perform their services or defend themselves.

A stun gun is a pocket-sized, battery-charged device that temporarily incapacitates a person with a 50,000-volt electric charge when it is pressed against the body. Though on the market only a few months, there are already reports of the device being used for purposes other than legitimate self-defense.

In February, a Maryland state trooper who was carrying a stun gun without authorization was reprimanded after he zapped an unruly (but handcuffed) woman four or five times with the device. This spring, five New York City police officers were accused of using a stun gun to torture a prisoner.

We feel that police don’t need this weapon. They already have sufficient equipment to subdue people when necessary.

We realize that in a violence-prone society, citizens need to protect themselves. We also must remember that weapons meant to protect us often are used against us. Why make crime easier for muggers and rapists? It seems the stun gun has more potential for serious injury and abuse than, for instance, chemical Mace.

The National Rifle Association and other pro-gun rights advocates shouldn’t equate stun guns with projectile weapons. Besides, any self-respecting NRA member would never depend on a stun gun for self defense.

This isn’t quite self-defense-blindness; the editorial does acknowledge that “citizens need to protect themselves.” But what does it say to explain why citizens should be denied this defensive tool? That the tool may be misused by criminals — but of course all defensive weapons can be misused by criminals.

Nor does this logic stop at stun guns, despite the nod in the direction of the legitimacy of Mace and guns. Exactly the same argument could be made against Mace and pepper spray; and of course in Maryland both then and now guns were largely unavailable for citizen self-defense in public, based precisely on the logic that the editorial reveals.

So this is the implication of the weapons control argument: It doesn’t stop at guns, but goes on to stun guns as well, and if taken to its logical conclusion (which it has been in England, Canada, New Zealand, and much of Australia, but fortunately not in the U.S.) to Mace and pepper spray as well. Never mind that people willing to violate laws against robbery or rape will likely be willing to violate laws against carrying weapons, so that weapons bans disproportionately affect the law-abiding. Never mind that the special arguments focused on the volume of gun deaths in the country — undoubtedly a serious problem, even if one thinks (as I do) that gun bans are an unsound way of dealing with it — don’t apply to stun guns or irritant sprays. Self-defense, even when acknowledged, is in practice casually sacrificed to the largely futile attempt to disarm the criminals.

It’s no accident, I think, that of the ten states in which law-abiding adults generally can’t get permits to carry guns concealed (California, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, and Wisconsin), seven also ban either possessing stun guns or at least carrying them in public. (California allows stun guns, as does Delaware outside Wilmington and Maryland outside the Annapolis/Baltimore area.) The arguments for gun bans could indeed be limited to guns, and not to other weapons. But the “those weapons can be misused, and never mind their value for self-defense” philosophy is in practice not easily cabined to guns.

The Supreme Court will consider whether the Second Amendment should apply to the states, and thus whether to overrule United States v. Cruikshank, 92 U.S. 542 (1876). Or is it United States v. Cruikshank, 92 U.S. 542 (1875)? Both citations are commonly used; HeinOnline reports that the 1875 date is given in roughly 60% of law review citations, and the 1876 in roughly 40%. Which is it?

Well, if you want to give the date of decision — which is the modern Bluebook requirement — you should say 1876, since the case was decided Mar. 27, 1876. The reason that many people say 1875 is that, to quote the Supreme Court’s Web page on the subject,

The dates of decisions do not appear beneath the case name in the first 107 volumes of the U.S. Reports. Beginning in 1854 (58 U.S.) the Lawyers’ Edition of the Supreme Court Reports includes the date, though there are some errors and omissions....

Some dates do appear in the U.S. Reports, either in the margin or in the body of the opinion. One edition of a particular volume may have dates while another edition does not. These dates sometimes differ from the dates found in the [Engrossed Minutes of the Supreme Court].

Fortunately the page I just linked to contains the official publication dates, so if you want to include the year of decision, you may do so. And for Cruikshank, the year is 1876.

(Note that the characterization of the issue in McDonald as being whether to overrule Cruikshank is something of an oversimplification, but let’s go with it for now.)

The Court has granted certiorari on this issue, in McDonald v. City of Chicago.

An opinion released today by the Arkansas Attorney General says “no.” Like most states, Arkansas allows adults to obtain a permit to carry a concealed handgun for lawful purposes, after passing a background check and  safety class.  Like a few states, Arkansas prohibits licensed carry in “Any church or other place of worship.”

In short, the AG opinion says that there is no Free Exercise violation because the statute does not (at least facially) hinder the exercise of religion. Further, the statute is one of general applicability, and does not single out religion for different treatment, because the Arkansas conceald handgun license (CHL) statute also bans CHL in some other locations. The opinon suggests that what these disparate places have in common is that they are likely to be crowded.

There is no Establishment Clause violation because the CHL in churches ban does not appear, facially, to favor one sect or denomination over another. (The AG opinion and this post both use “churches” to include synagogues, mosques, and all other houses of worship of various religions.)

The AG opinion strongly emphasizes that the issue is one of first impression, and that a full legal resolution of the issue might well require fact-finding.  The purpose of an Attorney General opinion is only facial review, and not the kind of fact-finding that a court might engage in.

Given the self-declared limited scope of the AG opinion, its tentative legal conclusions are plausible. However, I think that if we broaden our view a little bit–in either a court of law, or the court of public opinion–there do appear to be some potential violations of the Establishment and Free Exercise clauses.

Two preliminary caveats: First, neither the AG opinion nor this post address whether the church ban violates the right to arms clause of the Arkansas Constitution, or the Second Amendment. I expect that an argument on right to arms grounds would probably involve the rights of almost any landowner to choose to allow licensed carry on his/her/its property; the argument would not be specific to churches as landowners.

Second, as demonstrated by litigation in Minnesota, some churches consider it an intolerable burden on their free exercise of religion if, in order to exclude licensed gun owners, they must post a “no guns” sign similar to signs that ordinary businesses in the state routinely post in order to exclude licensed carry. I presume that a way can be found to accomodate their twin desires for “no guns” and “no signs” and  that this accomodation does not require banning guns from churches that want to allow carry. For example, a statute could presumptively ban guns at churches, and then allow individual churches to opt out by posting a “licensed gun owners are welcome” sign. Or a church could be allowed to authorize carry by specific persons who received a letter of authorization from the church.

One test for Free Exercise violations involves whether the statute imposes a significant burden on the free exercise of religion, even if the legislature had no malign intent to create a burden. A complete ban on CHL at churches, even at churches which strongly desire licensed carry on their premises, does burden free exercise. Churches, by their very nature as religious institutions, are more likely to be the targets of attacks by persons motivated by religious hatred. If the law prevents congregations from protecting themselves, then the state government is making church-goers defenseless at precisely the time when they are especially likely to be attacked by a criminal acting out of religious hatred.   In my forthcoming Connecticut Law Review article Pretend “Gun-free” School Zones: A Deadly Legal Fiction, I describe the case of a December 2007 attack on a church in Colorado Springs by a person who earlier that day had murdered people at a Christian youth group. Dozens of lives were saved because one of the parishioners at that the New Life Church, Jeanne Assam, was using her Colorado CHL to lawfully serve as a volunteer security guard at the church that Sunday.

Obviously not all churches have the same beliefs about the legitimacy of self-defense and defense of others as does the New Life Church. This brings use to the second violation of the First Amendment. The morality of using deadly force when necessary to protect innocent lives is a strongly debated topic among various denominations. The early Christians disagreed on the topic. Historically, the standard Jewish and Catholic view was that self-defense was a right and defense of others was often a duty. Some Christians, particularly since the 20th century, take an opposite view. Likewise, many adherents of the major religions of Asia also support self-defense, while some (especially some Therevada Buddhists) do not. These doctrinal differences about self-defense represent very important, sincerely-held differences in religious beliefs. A religion is, after all, not just about the forms of ritual; religion is especially concerned about providing guidance for moral conduct at moments when a person may face decisions involving the end of life.

The state, of course, must be neutral between the various religious beliefs. The state should not compel a Quaker to shoot someone who is trying to kill her, nor should the state forbid a Baptist from saving her own life.   The CHL prohibition in churches violates the Free Exercise clause because it prevents self-defense by members of a religious community, when they are gathered as a community, even if key tenet of the religion is the communal duty of the adherents to protect their fellow adherents.

Moreover, the CHL ban also violates the Establishment clause because it favors some denominations over others. In effect, the statute privileges pacifist denominations over non-pacifist ones, by forcing the non-pacifist religions to obey pacifist standards of conduct in their own houses of worship. This is not only a Free Exercise violation, it is an Establishment clause violation, because it plainly creates the message that the pacifist way of being is the only way of being which the state will allow in any church, anywhere in the boundaries of the state.

Establishment clause jurisprudence pays attention to the audience and context of the various messages that the government sends. A government message which is directed, for example, at tax accountants, may be less likely to be construed by the audience as an endorsement of a particular religion than that same message would be if delivered by a public school principal to a class of first graders. Churches are quintessential places for family activity; if children know (as many do) that their parents carry handguns lawfully in many places on Monday through Saturday, and on Sunday afternoon, and that the government forbids the parents from carrying the licensed, concealed handguns on Sunday morning at church, then some of those children may perceive a government message expressing an incompatibility between self-defense and religion. The de facto result is government favoritism of pacifist religion over non-pacifist.

None of the above analysis depends in any way on a finding of an expressed desire of legislators to favor pacifism over non-pacifism. First Amendment religion jurisprudence is not limited to a search for bad motives. A statute can violate the Free Exercise or Establishment clause solely because of its effects, including effects that legislators may not have considered or foreseen.

Of course the above analysis is just a sketch of an argument. Law journal students who are interested in the interplay of First and Second Amendment rights might find the issue to be a good topic for a Note.

Update: In response to various thoughtful comments...Yes, if you apply Employment Division v. Smith the way that the Attorney General did, this would defeat a Free Exercise claim. I suggest that such an application of Smith is not necessarily mandatory. Smith says that if you ban peyote (or defensive handgun-carrying) everywhere, then the general ban can apply in churches, without violating Free Exercise. Even if the ban is an essential part of a religious ceremony (peyote) or a matter of life and death for religious people who are at heightened risk of hate crimes (my argument above). This would be Smith applied to Illinois, where handgun carry in general is prohibited (with certain exceptions), and there is no statutory provision to even issue a CHL. 

Arkansas is, I suggest, different. It allows CHL in general, and selects churches as part of a small group of places where CHL is prohibited. Pursuant to Arkansas Code Annotated section 5–73-306, the only places (other than government property) where CHL is banned notwithstanding the wishes of the property owner, are churches, bars, sporting events, and religious or independent schools or colleges. The Attorney General suggests that these are all tied togethether by the common characteristic of being likely to be crowded. If crowdedness is the rationale, the list is both under-inclusive and over-inclusive. Accordingly, it appears that at least some further analysis would be required before rejecting a Free Exercise claim. In addition, not all states have adopted Smith’s restrictive test for their own state constitution’s Free Exercise jurisprudence, but that’s a separate issue.

Testing.

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Block quote.

More in the block quote.

Continue reading ‘Testing 123’ »