Michigan is one of 10 states in which gun deaths now outpace motor vehicle deaths, according to a study released Thursday by the Washington, D.C.-based Violence Policy Center.

But don’t expect the from-my-cold-dead-hands crowd to embrace the center’s conclusion that the disparity has everything to do with federal regulation — extensive and wildly successful in the case of motor vehicles, and virtually non-existent in the case of firearms.

“The idea that gun deaths exceed motor vehicle deaths in 10 states is stunning when one considers that 90% of American households own a car, while fewer than a third own firearms,” VPC Legislative Director Kristen Rand said. “It is time to end firearms’ status as the last unregulated consumer product.” …

“Motor vehicle deaths are on the decline as the result of a successful decades-long public health-based injury prevention strategy that includes safety-related changes to vehicles and highway design informed by comprehensive data collection and analysis,” a release accompanying the VPC study said. “Meanwhile, firearms are the only consumer product not regulated by the federal government for health and safety.”

But wait: The number of accidental gun deaths in Michigan in 2009 (the most recent year reported in WISQARS) was … 12, compared to 962 accidental motor-vehicle-related deaths. 99% of the gun deaths in Michigan that year consisted of suicides (575) and homicides (495).

Now say what you will about whether some gun control laws might reduce suicides or homicides, but it’s extremely unlikely that any “safety-related changes” or “regulat[ions] … for health and safety” are going to eliminate all but a tiny fraction of those suicides and homicides, which are overwhelmingly intentional acts by people who are willing to kill and are unlikely to be stopped by “regulat[ion] by the federeal government for health and safety.” Yet curiously the op-ed says nothing about how few of the gun deaths were accidental, and how few homicides or suicides could be prevented by “safety-related changes” along the lines of the safety regulations imposed on cars.

This also helps explain, I think, why gun rights supporters are so worried about “health and safety” proposals. Precisely because such proposals are so unlikely to have much of an effect, the gun rights supporters naturally assume that the backers of the proposals aren’t really after modest car-like “regulat[ions] … for health and safety,” but are actually trying to bring about much more aggressive sorts of gun restrictions.

In October 2009, defendant worked as a security guard for a private company at Newark Liberty International Airport. Vice–President Biden had recently flown into the airport, and President Obama was scheduled to arrive the next day on Air Force One.

Defendant and two other individuals who worked at the airport were standing at a lunch truck near the runway where the President’s plane was scheduled to land, when defendant remarked how easy it would be for someone to shoot the President. He pointed out that anyone with a gun could fire at the President, as he left his plane, from surrounding locations, such as defendant’s work post, the roofs of nearby buildings or the fenced area enclosing the runway. The men defendant spoke to were sufficiently alarmed by his statements to report them immediately to the Port Authority police.

Within hours, law enforcement personnel questioned defendant and, with his consent, searched his residence. There, law enforcement discovered and seized about seventy weapons, including rifles, handguns, hunting knives, crossbow and arrow sets, hollow point bullets and other ammunition, as well as permits and storage cases. A record check revealed that one of the guns had been stolen from Alabama. Defendant was arrested and charged with terroristic threats against the President, N.J.S.A. 2C:12–3b, receiving stolen property, N.J.S.A. 2C:20–7a, and unlawful possession of hollow point bullets, N.J.S.A. 2C:39–3f(1). A restraining order was issued barring defendant from any contact with the President or his family.

Defendant is from a family of hunters and had an extensive and valuable gun collection. With the exception of one gun which, unknown to defendant, was reportedly stolen from Alabama, defendant legally possessed the other guns and had the appropriate firearms permits. No weapon was found in defendant’s possession when he was arrested at his place of employment….

On November 12, 2009, defendant pled guilty to two counts of disorderly persons harassment against the two individuals who heard defendant’s conjectures at the lunch truck, N.J.S.A. 2C:33–4. Both weapons charges were dismissed. At that time defendant requested the return of all property seized from his home, but the prosecutor refused.

On July 12, 2010, defendant moved before the trial judge who had taken his guilty plea for an order compelling the State to return his property, except for the hollow point bullets and stolen rifle. The State filed a written opposition to the motion, which failed to cite any statutory, regulatory or precedential authority. At the hearing on the motion, the assistant prosecutor “concede[d] that after thorough investigation by the federal authorities, the Port Authority police and my office, that we did not see this as a major threat.” The prosecutor also acknowledged the two mental health evaluations that defendant had in prison, which “the State concede[d] he passed.” Nonetheless, based upon “the whole totality of the circumstances,” the State opposed the return of the weapons. In denying defendant’s motion, the trial judge, without providing any legal basis, ruled:

[W]e live in a very different time [since September 11, 2001] and in a very different world; we don’t engage in certain conduct involving words or acts that can be interpreted as threats to our elected officials, threats to our citizens, threats to the health, safety and welfare of everyone. And that phrase, or concept, the public health, safety and welfare, I think trumps everything…. Mr. Brek’s character is not at issue. At no time has the State — at least to my knowledge — brought … [Mr.] Brek’s character into this…. I believe that the public health, safety and welfare of our citizens does come into play here, and accordingly, I am going to deny Mr. Brek’s application for the return of his weapons.

This appeal followed.

Guess how the New Jersey Superior Court Appellate Division ruled, and then read on.

It is not disputed that the property seized by the State that defendant requests be returned was lawfully acquired, that plaintiff had obtained the necessary permits to purchase the firearms, and that defendant’s possession of the firearms and other weapons in his residence was lawful. Thus, the State has alleged no facts before the trial judge or on appeal that would give rise to a claim of prima facie forfeiture. N.J.S.A. 2C:64–1a(1). Consequently, the State could only seek derivative forfeiture of defendant’s property, for which it was required to bring a civil action within ninety days of its seizure. N.J.S.A. 2C:64–3a.

Not only has the State failed to file a timely civil action, it has provided no extenuating circumstances to request an equitable extension of time. More importantly, the State does not make a claim or allege any facts to demonstrate that the property seized meets the statutory definition of derivative contraband, N.J.S.A. 2C:64–1a. Nowhere in the record does the State allege that the property at issue was used in furtherance of a crime, as an integral part of an illegal activity, or as the proceeds of illegal activity.

Instead, the State argued that forfeiture was appropriate because defendant’s possession of hollow point bullets and a stolen rifle had shown that he was a threat to the public health, safety and welfare. The State compared the forfeiture of defendant’s property to the revocation or denial of a firearms permit if a person is found to be a threat. N.J.S.A. 2C:58–3. The trial judge, without referencing any statute, also used this analogy. We reject this argument as inapposite. This action does not involve the application for or revocation of a firearms permit under N.J.S.A. 2C:58–3, which is based upon a different statutory scheme than the Forfeiture Act. Furthermore, the property held by the State consists of many items, such as knives and bows and arrows, not covered by the firearms law.

Based upon the record before us, we cannot uphold the trial judge’s finding that the State had the right to retain defendant’s property as it was not based upon the required procedure in the Forfeiture Statute. Under that law, the State was required to file a civil action for forfeiture within ninety days of the seizure of the property. N.J.S.A. 2C:64–3a. The State neither made the requisite filing nor proffered extenuating circumstances for an extension of that time limitation. Even when requesting a remand for a forfeiture hearing, the State did not contend that requisite facts existed to prove the elements for prima facie or derivative contraband under N.J.S.A. 2C:64–1a. Accordingly, as the State had not moved timely under the Forfeiture Act, defendant is entitled to have his property returned to him.

We also have our own website for the book. There, you can read the detailed Table of Contents, and the Preface. The website is in an early stage of development; eventually, it will include detailed research guides and topic suggestions for students who are writing seminar papers. If you a professor and one of your students writes a seminar paper which makes a genuine contribution to knowledge about a topic, we invite you to send the us paper for publication on the website.

The textbook will have an accompanying Teacher’s Manual. We are currently finishing that up, and aim to have it available before the Fourth of July. (It’s free for professors who get a review copy, and forbidden for anyone else.)

Besides the 11 chapters in 1,008 pages of the printed book, there will also be four more on-line only chapters, available to purchasers of the printed book. These chapters will be: 12, Social science about firearms policy. 13, International law. 14, Comparative law. 15, A detailed explanation of firearms and their function. (Chapter 1 of the printed book provides a brief explanation of firearms and their function; the on-line chapter will go into much greater detail [e.g., what is a lever action gun?], and will have illustrations and photos.)

Finally, Firearms Law is the first law school textbook to be the subject of a podcast series. The published podcasts are: Chapter 3, The Colonies and the Revolution. Chapter 2, Antecedents of the Second Amendment: From Confucius to the British Whigs. Chapter 1, An introduction to firearms laws and firearms function. As the summer progresses, we will be adding more, and some chapters may have more than one. Thus far, all the podcasts are interviews of me, but as we make our way through the book, other co-authors will also appear in the podcasts.

This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least if their purpose is to disarm the public, rather than for the normal purposes of import controls (e.g., raising tax revenue, or protecting domestic industry). We can discern that broad attempts to disarm the people of a town, or to render them defenseless, are anathema to the Second Amendment; such disarmament is what the British tried to impose, and what the Americans fought a war to ensure could never again happen in America. Similarly, gun licensing laws which have the purpose or effect of only allowing a minority of the people to keep and bear arms would be unconstitutional. Finally, we see that government violence, which should always be carefully constrained and controlled, should be especially discouraged when it is used to take firearms away from peaceable citizens. Use of the military for law enforcement is particularly odious to the principles upon which the American Revolution was based.

Readers interested in more detail on the role of gun rights and gun control in period leading up to the Revolution, and in the remainder of 18th century America, are encouraged to read Stephen Halbrook’s excellent book The Founders’ Second Amendment, which is the result of decades of work by Halbrook in finding primary sources of the period, including newspapers, correspondence, and diaries.

On a related topic, some readers might also be interested in my 2005 article The Religious Roots of the American Revolution and the Right to Keep and Bear Arms, detailing the role of Congregationalist and other ministers in inciting the Revolution, by explaining collective self-defense of natural and civil rights as a moral and religious obligation.

We applied “intermediate” scrutiny in Reese, 627 F.3d at 802, which involved a Second Amendment challenge by a citizen to 18 U.S.C. § 922(g)(8), the provision forbidding firearms to those subject to a domestic-protection order. If we assume that an illegal alien like Mr. Huitron-Guizar, who has been here for decades and nowhere else, is entitled to the lawful exercise of this enumerated right, and if we observe that the law here not only burdens but eliminates the right by placing, on a class of perhaps millions, a total prohibition upon possessing any type of gun for any reason, “intermediate” scrutiny would seem to apply. Id., at 800 (comparing burdens imposed by the various § 922 restrictions). Under this standard a law is sustained if the government shows that it is “substantially related” to an “important” official end. Id. at 802.

The “principal purposes” of the Gun Control Act of 1968 are to “make it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency, and to assist law enforcement authorities in the States and their subdivisions in combating the increasing prevalence of crime.” S.Rep. No. 90-1501, at 22 (1968). The alien-inpossession ban was incorporated from a predecessor statute by the 1986 Firearm Owners’ Protection Act, Pub.L. No. 99-308, 100 Stat. 449, likewise with purpose of keeping instruments of deadly force away from those deemed irresponsible or dangerous. S.Rep. No. 98-583, at 12 (1986).

Congress may have concluded that illegal aliens, already in probable present violation of the law, simply do not receive the full panoply of constitutional rights enjoyed by law-abiding citizens. Or that such individuals, largely outside the formal system of registration, employment, and identification, are harder to trace and more likely to assume a false identity. Or Congress may have concluded that those who show a willingness to defy our law are candidates for further misfeasance or at least a group that ought not be armed when authorities seek them. It is surely a generalization to suggest, as courts do, see, e.g., United States v. Orellana, 405 F.3d 360, 368 (5th Cir. 2005), that unlawfully present aliens, as a group, pose a greater threat to public safety—but general laws deal in generalities. The class of convicted felons, too, includes non-violent offenders. See McCane, 573 F.3d at 1048-49 (10th Cir. 2009) (Tymkovich, J., concurring) (suggesting that Heller’s “dictum” should not foreclose challenges to the felon-dispossession law in § 922(g)(1)). The law applies with equal force to those who entered yesterday and those who, like Mr. Huitron-Guizar, were carried across the border as a toddler. The bottom line is that crime control and public safety are indisputably “important” interests.

If the right’s “central component,” as interpreted by Heller, 554 U.S. at 599, is to secure an individual’s ability to defend his home, business, or family (which often includes children who are American citizens), why exactly should all aliens who are not lawfully resident be left to the mercies of burglars and assailants? That must be at least one reason behind the wave of challenges to § 922(g)(5). But courts must defer to Congress as it lawfully exercises its constitutional power to distinguish between citizens and non-citizens, or between lawful and unlawful aliens, and to ensure safety and order.

Here’s the Tenth Circuit’s reasoning in Reese explaining why intermediate scrutiny was the proper test:

The initial question we must address is whether intermediate scrutiny is also appropriate for the statute challenged by Reese. To be sure, § 922(g)(8) is arguably more restrictive than § 922(k), the statute at issue in Marzzarella, in that it prohibits the possession of all types of firearms. On the other hand, however, § 922(g)(8) is less restrictive than § 922(k) in that it applies only to a narrow class of persons, rather than to the public at large. And, in that regard, § 922(g)(8) is substantially similar to § 922(g)(9), the statute at issue in Skoien. Specifically, both statutes prohibit the possession of firearms by narrow classes of persons who, based on their past behavior, are more likely to engage in domestic violence. Based upon these characteristics, we conclude that § 922(g)(8), like the statutes at issue in Marzzarella and Skoien, is subject to intermediate scrutiny.

The Franco-Mexican war continued until 1867, and American firearms played an important role in the liberation of Mexico.  When the French occupied Mexico City,  Mexican President Benito Juárez set up a resistance movement in northern Mexico. There, he ordered 1,000 Winchester Model 1866 carbines in .44 caliber, to be delivered to Monterrey, along with 500 cartridges per gun. The Juárez forces paid $57,000 in silver coin. “R.M.” – for “Republic of Mexico” – was inscribed on the frames of the carbines. Today, “Juarez Winchesters” are very valuable collectors items.

The relevant Kentucky statutory provisions, by the way, are these:

§ 527.020(4) … No person or organization, public or private, shall prohibit a person licensed to carry a concealed deadly weapon from possessing a firearm, ammunition, or both, or other deadly weapon in his or her vehicle in compliance with the provisions of KRS 237.110 and 237.115. Any attempt by a person or organization, public or private, to violate the provisions of this subsection may be the subject of an action for appropriate relief or for damages in a Circuit Court or District Court of competent jurisdiction….

§ 527.020(8) … No person or organization, public or private, shall prohibit a person from keeping a loaded or unloaded firearm or ammunition, or both, or other deadly weapon in a vehicle in accordance with the provisions of this subsection. Any attempt by a person or organization, public or private, to violate the provisions of this subsection may be the subject of an action for appropriate relief or for damages in a Circuit Court or District Court of competent jurisdiction….

§ 237.115(1) Except as provided in KRS 527.020, nothing contained in KRS 237.110 [the general concealed carry licensing provision -EV] shall be construed to limit, restrict, or prohibit in any manner the right of a college, university, or any postsecondary education facility, including technical schools and community colleges, to control the possession of deadly weapons on any property owned or controlled by them or the right of a unit of state, city, county, urban-county, or charter county government to prohibit the carrying of concealed deadly weapons by licensees in that portion of a building actually owned, leased, or occupied by that unit of government.

The court concluded that the “[e]xcept as provided in KRS 527.020″ did limit the university’s to fire employees for possessing guns in their cars; for more on this, please see the opinion.

UPDATE: My colleague Prof. Stephen Bainbridge speaks out against the Kentucky statute, and nearly all other laws that restrict employees’ and employers’ ability to sever their relationships at will.

But in Fall 2009, Fisher asked for a license to buy another gun — Hawaii requires such a license — but the police department said no, and indeed ordered him to dispose of his current guns. Fisher, the police department reasoned, was forbidden from possessing a gun by Haw. Rev. Stat. § 134-7 and 18 U.S.C. § 922(g)(9). Hawaii law forbids gun possession by anyone who has been convicted of “any crime of violence,” including misdemeanors (Hawaii law). Federal law forbids gun possession by anyone who has been convicted of any misdemeanor that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon” against a spouse, cohabitant, or child.

Now here’s the twist: The Hawaii harassment statute, which Fisher had violated, covers any situation where a person “with intent to harass, annoy, or alarm any other person … [s]trikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact.” This, the court held, includes not just violent touching but “any slight touching of another person in a manner which is known to be offensive to that person.” So many harassment convictions might be based on “violence” or “physical force,” but some might be based based on just an offensive touching that would be short of physical force, such as spitting or jabbing with a finger during an argument (to use a hypothetical from a Ninth Circuit case dealing with a similar statute).

To decide where such state statutes into a federal scheme, federal courts generally use the “modified categorical approach“: They consider whether the statutory text “has, as an element, the use or attempted use of physical force” (that’s the “categorical” part) coupled with looking at the charging documents or plea agreements that make clear what actually happened (that’s the “modified” part). It’s not enough that the statute usually covers violent conduct, or that there’s now evidence that the conviction was based on violent conduct; the court is limited to the text of the statute and the particular documents setting forth the earlier charges or the defendant’s past admissions pursuant to a plea deal.

Here, the court held, the harassment statute does not qualify. And, the court noted, the “modified” part of the “modified categorical” approach would only kick in if the government could point to “the written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented, which might shed some light on the nature of the underlying conduct for which Plaintiff was convicted.” And, at this stage of the proceedings, “the parties have not provided such documents to the Court,” “and it is questionable whether they are still available.” Fisher’s demand for an injunction ordering the return of his guns can go forward. And, based on the court’s reasoning, Fisher would presumably win unless the government can find some of those documents.

So this is a limited decision, but still a noteworthy one: The court seems to be saying that denying a person a gun based on a general “harassment” misdemeanor conviction, without a showing that the conviction involved violence, violates the Second Amendment (at least given the current Hawaii and federal statutory scheme, which is limited to crimes of violence). Note, though, that, as the court points out, several circuits — unlike the Ninth Circuit and several others — take the view that § 922(g)(9) applies to any conviction for an illegal offensive touching of a spouse, cohabitant, or child, and not just to convictions for violent touching, see note 26 of the opinion; it’s not clear what result the court would have reached had the statute indeed been read as broadly in the Ninth Circuit.

The bill does not change Canada’s registration system for handguns, which has been in effect since the 1930s. Nor does it change the registration system for certain long guns which have been classified as “prohibited” or “restricted” weapons. Likewise unchanged is Canada’s complicated and burdensome system for licensing gun owners, which was created by a Liberal government in the 1990s.

The registration changes, however, are monumental. Registration records for seven million ordinary long guns are to be destroyed. The government of Quebec has announced that it while file suit to attempt to obtain custody of the 1.5 million registration records pertaining to citizens of Quebec.

Ever since the regime of Prime Minister Pierre Trudeau in the 1970s, gun control in Canada has been primarily a culture war campaign against the “masculine” values of rural Canada, and as a means of demonstrating the dominance of Canada’s urban New Class.

To this day, the foremost public justification for all forms of gun control is Gamil Rodrigue Gharbi (who changed his name Marc Lépine). Gharbi/Lépine was the son of an alcoholic, wife-beating, child abuser who had immigrated to Canada from Algeria. In 1989, he murdered 14 women (13 by gunshot, one by stabbing), and wounded 8 women and 4 men in the engineering building of a school affiliated with the University of Montreal. An incompetent response by police dispatchers to the 911 calls gave Gharbi/Lépine the opportunity to murder at leisure.

In The Montreal Massacre (gynergy books, 1991), Quebec feminists describe their outrage, and demanded the rehabilitation of masculinity, whose (allegedly) misogynist pro-death culture is based on aggressive sports, violent entertainment, and the penetration of women during sexual intercourse.

Canada’s leading public proponent of gun control, Prof. Wendy Cukier, had previously proclaimed that in Canada, gun control is a one-way street; once restrictions are imposed, they are never lifted. This was never entirely accurate; popular demand forced the removal of some long gun restrictions that had been imposed during the World Wars. But the removal of a major peacetime anti-gun law truly does signal a new era in Canadian right to arms politics.

Efforts to repeal the long gun registry lasted 17 years, and they finally succeeded in part because the majority of Canadians have concluded that the registry was a colossal waste of money,  of no value in crime control, and a pointless invasion of privacy.

Globally speaking, the repeal of the registry is the most important gun policy event of the last year. As the United Nations works towards a final draft of an Arms Trade Treaty this year, the Canadian public’s rejection of registry adds to the challenges of the global gun control organizations which want the Treaty to include gun registration requirements.

An article in Forbes profiles Saskatchewan MP Garry Breitkreuz, whose tireless work was essential to the repeal.  Breitkreuz, incidentally, had started out as a supporter of registration, and changed his mind after studying the evidence about whether it would help reduce crime. Kudos also to the Canadian Sport Shooting Association, to Canada’s National Firearms Association, and especially to the late David Tomlinson, who passed away in 2007, and who for over three decades was the Founding Father and leader of Canada’s right to arms movement.

Canadian gun owners know that much more needs to be done to undo the damage caused the kulturkampf which Trudeau began, and which has burdened Canadians with laws that do nothing to enhance public safety, but whose purpose and effect is to harass and persecute law-abiding gun owners. Bill C-19 is a good first step, and a monumental one.

The district court reasoned that even a total ban on carrying guns for self-defense outside the home should be judged under “intermediate scrutiny,” and the ban passes because “[t]he State of Illinois has determined that, for purposes of protection of its residents, a citizen’s interest in carrying a firearm in public should be subject to the governmental interest in safeguarding the welfare of the public at large from the inherent dangers in a loaded firearm.”

Two thoughts about the decision:

1. The court doesn’t discuss whether — as the Maryland federal district court recently suggested — intermediate scrutiny can only be satisfied by regulations of the carrying of guns outside the home, rather than by total prohibitions. To quote, the Maryland district court,

A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered “reasonably adapted” to a government interest, no matter how substantial that interest may be. Maryland’s goal of “minimizing the proliferation of handguns among those who do not have a demonstrated need for them” is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly. Those who drafted and ratified the Second Amendment surely knew that the right they were enshrining carried a risk of misuse, and states have considerable latitude to channel the exercise of the right in ways that will minimize that risk. States may not, however, seek to reduce the danger by means of widespread curtailment of the right itself.

2. The court also says that, as to “laws that impact the right to bear arms outside the home,” “the Seventh Circuit has determined that intermediate scrutiny would apply. See, Ezell, 651 F.3d at 703-04 (collecting cases applying intermediate standard in the Third, Fourth, and Tenth Circuits).” But I don’t see how that is a correct reading of Ezell v. City of Chicago (7th Cir. 2011). The cited passage from Ezell does say,

For all other cases, however, we are left to choose an appropriate standard of review from among the heightened standards of scrutiny the Court applies to governmental actions alleged to infringe enumerated constitutional rights; the answer to the Second Amendment “infringement” question depends on the government’s ability to satisfy whatever standard of means-end scrutiny is held to apply.

The approach outlined here does not undermine Skoien, 614 F.3d at 639-43, or United States v. Williams, 616 F.3d 685, 691-93 (7th Cir.2010), both of which touched on the historical “scope” question before applying a form of intermediate scrutiny. And this general framework has been followed by the Third, Fourth, and Tenth Circuits in other Second Amendment cases.

But, as the Ezell court noted, “Intermediate scrutiny was appropriate in Skoien because the claim was not made by a ‘law-abiding, responsible citizen’ as in Heller, 554 U.S. at 635, 128 S.Ct. 2783; nor did the case involve the central self-defense component of the right, Skoien, 614 F.3d at 645.

And Williams similar involved a challenge brought by someone who wasn’t a “law-abiding, responsible citizen” (indeed, Williams was a convicted felon). So in context, the Ezell passage quoting above is simply (1) noting that Skoien and Williams are consistent with the notion that some “standard of means-end scrutiny” must be chosen in each kind of case, and (2) mentioning that this doesn’t undermine the decision in Skoien and Williams to choose intermediate scrutiny. The court is not, I think, silently concluding that “intermediate scrutiny” is the proper test even as to claims that are “made by a ‘law-abiding, responsible citizen.’”

Indeed, Ezell concluded that,

Here, in contrast, the plaintiffs are the “law-abiding, responsible citizens” whose Second Amendment rights are entitled to full solicitude under Heller, and their claim comes much closer to implicating the core of the Second Amendment right. The City’s firing-range ban is not merely regulatory; it prohibits the “law-abiding, responsible citizens” of Chicago from engaging in target practice in the controlled environment of a firing range. This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense. That the City conditions gun possession on range training is an additional reason to closely scrutinize the range ban. All this suggests that a more rigorous showing than that applied in Skoien should be required, if not quite “strict scrutiny.” To be appropriately respectful of the individual rights at issue in this case, the City bears the burden of establishing a strong public-interest justification for its ban on range training: The City must establish a close fit between the range ban and the actual public interests it serves, and also that the public’s interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights.

I’m not claiming that Ezell clearly selected “a more rigorous” standard than intermediate scrutiny for law-abiding-citizen Second Amendment claims — it may be that its selection of that standard is limited to restrictions that interfere with gun possession in the home. (The Ezell plaintiffs “claim[ed] that the range ban impermissibly burdens the core Second Amendment right to possess firearms at home for protection because the Ordinance conditions lawful possession on range training but makes it impossible to satisfy this condition anywhere in the city.”) But I am saying that Ezell did not select “intermediate scrutiny” as the general standard for law-abiding citizen Second Amendment claims outside the home, and the district court was mistaken in concluding that Ezell did so. Rather, the district court should have recognized that the issue had not been decided by the Seventh Circuit, and the court should have accepted the responsibility for itself making the choice, rather than asserting that the choice was made for it.

The right of each citizen to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes is fundamental and shall not be denied or infringed, and any restriction shall be subject to strict scrutiny.

For more on what “strict scrutiny” might mean in this context, and on other possible constitutional tests, see Eugene Volokh, Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA Law Review 1443 (2009). Thanks to Bill Rafferty (Gavel to Gavel) for the pointer.

The court concluded that:

1. The right to keep and bear arms extends to carrying outside one’s property, for self-defense and for other reasons. The law interferes with the exercise of this right.

2. The law also interferes with the exercise of people’s right to defend themselves in their homes, because it bars people from buying weapons and them transporting them to their homes.

3. The law must therefore be considered under strict scrutiny, because it isn’t just limited to high-risk gun possessors, to particular kinds of guns, or particular manners or times of carrying guns, and because it interferes with getting guns even for home defense (though, as I noted, the court also concluded that carrying guns for defense outside the home is also generally constitutionally protected).

4. The law fails strict scrutiny, because they “excessively intrude upon plaintiffs’ Second Amendment rights by effectively banning them … from engaging in conduct that is at thev ery core of the Second Amendment at a time when the need for self-defense may be at its very greatest” and therefore aren’t narrowly tailored to serve the government’s compelling interest in public safety.

Note that, as is often the case, the application of “strict scrutiny” can be quite rights-protective or not depending on what one understands “narrow tailoring” to mean. If narrow tailoring requires some plausible reason to believe that the law will on balance help prevent crime and injury, then that requirement will very often be satisfied. If it requires social science proof that the law will on balance help prevent crime and injury, then that requirement will rarely be satisfied, especially in situations such as this: There will rarely be solid studies of the effects of this particular kind of law.

And if, as here, “narrow tailoring” requires that the law not “excessively intrude” on rights, then that might be something like a rule of per se invalidation (at least as to very heavy burdens on the right): The premise of such an approach is that, regardless of whether the restrictions will reduce crime and injury, it is still unconstitutional if it interferes with the core of the right, since the constitutional recognition of the right expresses a judgment that the right must be protected despite the threat it may pose to compelling government interests. For more on all this, check out 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).

Congratulations to Alan Gura, the lawyer who won Heller and McDonald, on his victory in this case, and to the Second Amendment Foundation, which helped file the case.

1. The Necessary and Proper Clause. “Unlike other purchase mandates, including every hypothetical at oral argument on Tuesday, the minimum coverage provision prevents the unraveling of a market that Congress has clear authority to regulate.” This is no limitation at all. Under modern doctrine, Congress has the authority to regulate almost every market. If Congress enacts regulations that are extremely harmful to that market, such as imposing price controls (a/k/a “community rating”) or requiring sellers to sell products at far below cost to some customers (e.g., “guaranteed issue”) then the market will probably “unravel” (that is, the companies will lose so much money that they go out of business). So to prevent the companies from being destroyed, Congress forces other consumers to buy products from those companies at vastly excessive prices (e.g., $5,000 for an individual policy for a health 35-year-old whose actuarial expenditures for health care of all sorts during a year is $845).

So Siegel’s argument is really an anti-limiting principle: if Congress imposes ruinous price controls on  a market, to help favored consumers, then Congress can try to save the market’s producers by mandating that disfavored consumers buy overpriced products from those producers.

2. The Commerce Clause. “The minimum coverage provision addresses economic problems, not merely social problems that do not involve markets.” This is true, and is, as Siegel points out, a distinction from Lopez (carrying guns) and Morrison (gender-related violence). However, it’s pretty clear under long-established doctrine that the Commerce power can be used to address “social problems that do not involve markets.” E.g., Caminetti v. United States, 242 U.S. 470 (1917) (Congress can use the interstate commerce power to criminalize interstate travel by people intending to engage in non-commercial extra-marital sex); Champion v. Ames, 188 U.S. 321 (1903) (“What clause can be cited which, in any degree, countenances the suggestion that one may, of right, carry or cause to be carried from one state to another that which will harm the public morals?”). Personally, I thought that Chief Justice Fuller’s dissent in Champion had the better argument, but Champion and its progeny are well-established precedents, so proposed limiting principle number two does not work, unless we overrule a century of precedent.

Besides that, #2 does not work for the same reason that #1 does not work. If Congress forced food producers to sell products to some consumers at far below cost, then Congress could (for economic, not social/moral motives) force other consumers to buy overpriced food, so that the producers do not go bankrupt. Imagine that instead of the Food Stamp program (general tax revenue given to 1/6 of the U.S. population to help them buy food), Congress forced grocery stores to sell food to poor people at far below cost. And instead of raising taxes in order to give money to the grocery stores to make up for their losses on the coerced sales, Congress instead forced other consumers to spend thousands of dollars on food from those same stores, which would be sold to those consumers at far above its free market price.

If there’s a limiting principle, the only one seems to be that in order to mandate the purchase of a product, Congress must also inflict some other harm on the producers of the product, which the coerced purchases will ameliorate.

3. “Collective action failures and interstate externalities impede the ability of the states to guarantee access to health insurance, prevent adverse selection, and prevent cost shifting by acting on their own. Insurers operate in multiple states and have fled from states that guarantee access to states that do not.” This is really a policy argument for Obamacare. Hypothesizing that it’s a good policy argument, it’s not a limiting principle. That the advocates of Obamacare think that the policy arguments for their mandate is better than the policy arguments for other mandates does not provide courts with a limiting principle of law.

Moreover, the policy argument is wrong. It’s true that some insurance companies stop operating in states where the law forces them to sell insurance to legislatively-favored purchasers at far below the actuarial cost of the insurance, with the  legislature failing to compensate the companies for the enormous resulting losses. If you make it difficult for companies to operate profitably in your state, then they will eventually stop operating in your state. It’s not a collective action problem; it’s just a problem of several states enacting laws that prevent companies from covering their costs. Any state with guaranteed issue and other price controls can solve the problem immediately by simply using tax revenues pay compensation for the subsidy which the state law forces the insurance companies to provide to certain consumers.

Obamacare is a particularly weak case in which to argue that the federal government is riding the rescue of the states to solve a collective action problem. For the first time in American history, a majority of the States are suing to ask that a federal law be declared unconstitutional. These states are taking collective action to stop the federal government from imposing a problem on them.

4. The Tax Power. “[T]he minimum coverage provision respects the limits on the tax power. The difference between a tax and a penalty is the difference between the minimum coverage provision and a required payment of say, $10,000 that has a scienter requirement and increases with each month that an individual remains uninsured. Unlike the minimum coverage provision, such an exaction would be so coercive that it would raise little or no revenue. It would thus be beyond the scope of the tax power.”

Let’s put aside the fact that, however ingenious the progressive professoriate’s  tax arguments have been, the chances that the individual mandate is going to be upheld under the tax power appear to be at most 1% greater than the chance the Buddy Roemer will be the next President of the United States.

Presuming that Siegel’s tax justification for the individual mandate is valid, it is an anti-limiting principle. Congress can indeed mandate eating hamburgers, smoking, not smoking, not eating hamburgers, or anything else Congress wants to mandate, as long as Congress sets the “tax” at level that will raise a moderate amount of revenue, does not include a scienter requirement, and does not make the “tax” increase each month that the individual refuses to do what Congress mandates.

5. Liberty. “The minimum coverage provision does not violate any individual rights, including bodily integrity and substantive due process more generally. These rights would be violated by a mandate to eat broccoli or exercise a certain amount.” Pointing to the existence of the Bill of Rights is not an example of a limiting principle for an enumerated federal power. The Constitution does not say that Congress may do whatever it wishes as long as the Bill of Rights protections of Liberty are not violated. Ordering New York State to take title to low-level radioactive waste generated within the state (New York v. United States) did not violate any person’s substantive due process rights, but the order was nonetheless unconstitutional because it exceeded Congress’s powers. The federal Gun-Free School Zones Act did not, as applied, violate the Second Amendment rights of Alfonso Lopez, who was carrying the gun to deliver it to a criminal gang. Yet the Act still exceeded Congress’s commerce power. A limiting principle must limit the exercise of the power itself, not merely point out that the Bill of Rights protects some islands of Liberty which the infinitely vast sea of federal power might not cover.

Finally, I certainly agree with Professor Siegel that the Fifth Amendment’s liberty guarantee (and its 14th Amendment analogue for the states) should be interpreted to say that no American government can order people to consume a certain amount of healthy food, or to exercise. But there is no major case that is on point for this. The argument for a new unenumerated right “not to eat the minimum quantity of nutritious food which government scientists have  determined is essential for good health” is something that would have to be built almost entirely by extrapolation from cases that have nothing to do with food. I hope that courts would accept the argument; but if the political culture ever moved far enough so that a nutrition mandate could pass a legislature, I’m not as certain as Prof. Siegel that courts would overturn the mandate. The odds of winning a case against a nutrition mandate will be better if the judges who decide that case have not grown up in a nation where a federal health control mandate is the law of the land.

The Civil Rights Litigation Committee of the American Bar Association (ABA) Section of Litigation has formed a Second Amendment Subcommittee.

Subcommittee Goals/Objectives & Ways You Can Get Involved.

• Case/Law Updates: If you hear of a Second Amendment-related case decision or major development in Second Amendment law, send us a write-up about it. Your update will be emailed to the subcommittee’s membership and posted on the Civil Rights Committee page. These updates do not need to be long. You can do them case brief style or more like an opinion piece.

• Conference Calls & Events: The Subcommittee plans to hold conference calls every 2-3 months or so to discuss the current status of Second Amendment Jurisprudence and recent developments. Additionally, the subcommittee plans to be represented at relevant events (e.g., ABA conferences, etc.).

• Increased Membership: Another goal of the subcommittee is increased membership. If you have not done so already, please join the ABA and the Section of Litigation Civil Rights Committee officially. We would like to be able to show the ABA that there is a great interest in Second Amendment civil rights. We encourage everyone to join and spread the word to anyone who is interested in the Second Amendment or supporting civil rights in general! …

• JOIN! Again, it is important to have increased membership for the subcommittee. The more members that the subcommittee has officially, the more likely the subcommittee is to remain next year, and the year after that, etc. Eventually, we would like the subcommittee to become a full-fledged committee.

• CONTACT [SUBCOMMITTEE CHAIR BOBBIE] ROSS TO PARTICIPATE. If you are interested in participating in any of the aforementioned ways, and/or have any questions or need any more information, please contact Ms. Ross.
Email: rossbk@gmail.com
Profile: http://www.linkedin.com/profile/view?id=10372665

Fla. Stat. § 776.012. Use of force in defense of person

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

So the general rule is that deadly force may be used only to “imminent death or great bodily harm,” or “the imminent commission of a forcible felony.” A person may only use deadly force if he “reasonably believes” that the aforesaid factual conditions exist. These standards are the norm throughout the United States.

Eventually, a grand jury will issue a report based on its investigation. In the meantime, there are two competing narratives. In one narrative, Zimmerman followed Martin, attacked him, and then murdered him. Let’s call this the “M narrative.” In Zimmerman’s account, he followed Martin,  caught up with him, and then left; while he was leaving, Martin attacked him, knocked him to the ground, and began slamming his head into the  pavement. Let’s call this the “Z narrative.”

I am not making any judgment about which narrative is more plausible. The grand jury will do that. For now, it should be noted that neither the M narrative or the Z narrative has anything to do with a duty to retreat. The retreat issue would only be relevant if Martin were the aggressor, and Z had the opportunity to escape from Martin in complete safety. Then, and only then, would different state standards about retreat be relevant. Simply put, everyone who has claimed that Florida’s retreat rule affect the legal disposition of the controversy is either misinformed or mendacious.

The core Florida law on deadly force in self-defense leads to clear results. If M is true, then Zimmerman’s firing of the gun was a criminal homicide. If Z is true, the act was lawful self-defense. The results would be the same in every other state.

Under Florida law, there is another set of circumstances in which deadly force is permitted is:

(2) Under those circumstances permitted pursuant to  s. 776.013

The cross-references is to a statute involving self-defense in one’s home or automobile. Neither of these is relevant to the Martin-Zimmerman case.

Fla. Stat. § 776.013. Home protection; use of deadly force; presumption of fear of death or great bodily harm

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

The home/automobile law allows use of deadly force against intruders who unlawfully enter the victim’s home or occupied automobile. The law makes specific exceptions if the intruder has a legal right to be there, or is lawfully exercising child custody rights, or if the person in the home/automobile is engaged in illegal activity, or if the intruder is law enforcement officer who has identified himself as such.

Again, the home/automobile provisions have no relevance to Martin/Zimmerman case.

Next is the issue of retreat:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Again, this is irrelevant to the Martin/Zimmerman case. A duty to retreat, if it existed, would apply to a crime victim, who would be required to retreat than to use force in self-defense, if retreat were feasible. In the M version of the case, Zimmerman stalked and shot Martin; Martin never attacked Zimmerman. Accordingly, Zimmerman never had any lawful right of self-defense. Only Martin had violently and feloniously attacked Zimmerman would there be an issue (in any jurisdiction) as to whether Zimmerman had a duty to retreat. In the Z version of the case, there was such an attack, but it was impossible for Zimmerman to retreat. Thus, duty to retreat law has no bearing on the case.

Historically, American states have been split as to whether there is ever a duty to retreat, and under what circumstances. Richard Maxwell Brown’s excellent book No Duty to Retreat: Violence and Values in American History and Society (1994) details the strong trend in American courts in the late 19th and early 20th centuries against a duty of retreat. The U.S. Supreme Court said the same thing in Beard v. United States, 158 U.S. 550 (1895):

[Beard] was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

Beard involved a victim on his own land. The Court unanimously re-affirmed Beard‘s no-retreat rule in Alberty v. U.S., 162 U.S. 499 (1896), which involved a person in his own home. Allen v. United States, 164 U.S. 493, 502 (1896), involved a victim who was on someone else’s property; there, the Court upheld a jury instruction in favor of a duty to retreat.

Finally, in Brown v. United States, 256 U.S. 335 (1921), Justice Holmes writing for a unanimous Court that included Louis Brandeis (the greatest Progressive jurist), explained:

Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence. That has been the decision of this Court. [cite to Beard.] Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him Rowe v. United States, 164 U. S. 546. The law of Texas very strongly adopts these views as is shown by many cases, of which it is enough to cite two. Cooper v. State, 49 Tex. Cr. R. 28, 38, 89 S. W. 1068. Baltrip v. State, 30 Tex. App. 545, 549, 17 S. W. 1106.

It is true that in the case of Beard he was upon his own land (not in his house,) and in that of Rowe he was in the room of a hotel, but those facts, although mentioned by the Court, would not have bettered the defence by the old common law and were not appreciably more favorable than that the defendant here was at a place where he was called to be, in the discharge of his duty. [Defendant Brown was an employee at a federal navy yard, where Hermis attacked him with a  knife.]

The above cases all involved federal common law, applied to the federal Territories and to federal property. States, of course, are free to chart their own course. Judges can revise the common law, and legislatures can enact statutes which differ from the common law. Under the English common law of Blackstone, there was no duty to retreat in the home, and no duty to retreat when the use of force was necessary to commit a forcible felony, such as arson. Retreat was required, if practicable, in cases “of a sudden brawl or quarrel” outside the home. See also Hawkins, Pleas of the Crown, sects. 106-07; Bishop’s Criminal Law, sect. 850 (most influential American criminal law treatise of latter 19th century; person who is victim of murderous attack has no duty to retreat).

In sum, Florida’s non-retreat rule is not some 21st century novelty. It is consistent with a long tradition of American law, in which different states have had a variety of rules about when, if ever, retreat might be required.

Even among the most restrictive states, such as New York, retreat in safety is not required before using deadly force in the home; to prevent a burglary (if the person reasonably believes that the criminal would use force to thwart the person’s termination of the burglary) ; to prevent a robbery ; or to prevent a kidnapping, forcible rape, or other forcible criminal sexual attack.  Thus, whether you are in Lake Placid, New York, or Lake Placid, Florida, and someone attempts to rob you when you are walking down the street, you have no duty to retreat before using deadly force to thwart the robbery.

Back to the Florida statute, which then provides some additional legal standards for home/automobile defense:

 (4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

The next part of the Florida Code concerns “Use of force in defense of others.” Fla. Stat. § 776.031:

A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

Deadly force is permitted only when “reasonably” believed “necessary to prevent the imminent commission of a forcible felony.” The no-retreat rule is the same as for self-defense.

We have now covered the entire relevant sections of Florida’s self-defense statutes. Not one word of them provides the slightest legal protection to Zimmerman, if the M version of the events is true. The grand jury will decide whether there is plausible evidence in support of the M theory.

Florida law provides some protections for persons who have lawfully used force against a criminal attack.

Fla. Stat. § 776.032. Immunity from criminal prosecution and civil action for justifiable use of force

(1) A person who uses force as permitted in  s. 776.012 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

So if a person used force lawfully in self-defense against a criminal attacker, then his actions are justified (not merely excused), and he may not be arrested, criminally prosecuted or sued. It seems obvious that persons who have obeyed the law should not be arrested or prosecuted. Nor should criminals or a criminal’s relatives be able to harass the victim by filing a civil suit.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

The Sanford police said this is why they did not arrest Zimmerman: they did not have probable cause to believe that he had broken the law. In fact, the statute does not change the law, but it apparently is effective at reminding law enforcement officers of the standard they are required to obey. Regarding arrests, the United States Constitution requires that “The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the . . . persons . . . to be seized.” As judicially interpreted, the Fourth Amendment does not require a warrant for some arrests, but the probable cause requirement remains enforceable. The normal rule in American law is that a police officer must have “probable cause” in order to arrest someone.

Another protection:

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

So if a lawful defender is sued, then the court will attorney’s fees and costs to the victim of the improper suit, who was, of course, also the crime victim.

Finally, Florida law guaranteeing self-defense rights express excludes anyone who “Initially provokes the use of force against himself or herself.” Fla. Stats. 776.041. As is typical in other states, the provoker can only regain self-defense rights  if:

(2)(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

The only way that this statute would be relevant would be if Zimmerman initially attacked Martin, and then withdrew. Zimmerman has made no such claim, nor does the M narrative.

In sum: there is not a shred of support for the claim that Florida law protects, or has protected Zimmerman, if he unlawfully attacked Martin. If Zimmerman’s story is true (Martin attacked him, putting him in imminent peril of grave bodily injury, with no opportunity to retreat), then Zimmerman’s self-defense claim would be valid under the laws of Florida, New York, or any other Anglo-American jurisdiction. The particular legal changes resulting from Florida’s “Stand Your Ground” and “Castle Doctrine” laws (deadly force in the home/automobile; no duty to retreat in public places; Fourth Amendment arrest standard affirmation; protection from civil suits) simply have nothing to do with whether Zimmerman’s actions were or were not lawful.

It is unlawful for any person to knowingly possess or carry a firearm, in or upon a public place, including while in a vehicle in a public place, recklessly having failed to remove all the ammunition from the firearm [with a bunch of exceptions, including for people with concealed carry licenses -- Oregon is a shall-issue state].

Jonathan Christian, who was prosecuted for violating the ordinance, challenged it on overbreadth grounds, arguing that it covered a substantial amount of constitutionally protected conduct. (Such challenges are apparently allowed in right to bear arms cases under the Oregon Constitution, much as they are allowed in First Amendment cases.) Oregon courts had in the past recognized that the right to bear arms including a right to carry weapons in public, though an Oregon Court of Appeals decision had upheld a ban on carrying loaded guns in public. And the 4-judge dissent viewed this as a dispute about the right to carry loaded guns in public, concluding that the Oregon Constitution does protect such a right. (Judge Edmonds’ dissent, joined by Chief Judge Brewer, goes into this in great detail as a historical matter, concluding that this right was generally recognized in American law at the time the Oregon Constitution was adopted in 1859.)

But the 5-judge majority takes a different approach: The ordinance, the majority says, isn’t a ban on loaded carry — it’s a ban only on loaded carry that creates a known and substantial risk to the public beyond “a risk that would inhere in using the firearm for the kinds of self-defense, defense of others, or defense of premises that are statutorily justified.” As I read this, it probably means that the ordinance doesn’t ban most loaded carry at all, but just loaded carry for criminal purposes, or in unusually dangerous ways. And because it reads the ordinance so narrowly, the majority concludes that the ordinance is not unconstitutionally overbroad.

The dispute is about the interpretation of the word “recklessly.” The dissenters reason, in my view persuasively, that,

In context, the reference to a reckless failure to unload the firearm describes circumstances in which the person “is aware of and consciously disregards a substantial and unjustifiable risk” [the general Oregon definition of "recklessly" -EV] that the firearm is loaded. In other words, the person carries the firearm notwithstanding a substantial risk that it is loaded and under circumstances in which the person’s contrary belief is unjustified. So understood, the ordinance distinguishes between a gang member who carries a gun that another gang member has asked the person to carry to patrol the gang’s purported territory and a person who carries a gun to a shooting range that the person’s parent has said is unloaded.

But the majority interprets “recklessly” as referring not to the carrier’s recklessness as to whether the gun has been unloaded, but his recklessness as to the possible consequences of having the loaded gun:

A violation of the ordinance occurs … when a person (1) possesses or carries a loaded firearm in a public place; (2) knows that he or she is carrying or possessing the loaded firearm and that the place is public; (3) recklessly does so anyway, that is, is aware of the fact that carrying the loaded firearm in public creates an unreasonable, unjustifiable risk; and (4) nonetheless consciously disregards that risk and bears the firearm in a public place anyway.

Defendant (and the dissent) under-appreciate the effect of the term “recklessly,” apparently contending that it refers only to the isolated act of not unloading the firearm, as opposed to that act and its inherent consequent risks when the loaded weapon is borne in public. That interpretation makes no sense logically or syntactically. It would result in a rule that prohibits carrying a loaded firearm in public, having at some point been aware of and consciously disregarding the risk that not unloading the firearm creates a significant, unreasonable, and unjustifiable risk of … a loaded firearm. To take an action recklessly — that is, aware of and disregarding the fact that the action creates a risk — the risk must be of something other than the action itself. We do not say that a person who drives recklessly does so because he or she drives while aware of and disregarding the risk that he or she will drive. The crime of reckless driving is made out only if the driving “endangers the safety of persons or property.”

Here, for whatever it’s worth, is the Oregon general definition of “recklessly,” which is borrowed from the Model Penal Code: “‘Recklessly,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

An interesting dispute, which I thought I’d note.

After the event ends at 5 p.m., we are going to have an informal event to celebrate the publication of the new law school textbook Firearms Law & the Second Amendment; Regulation, Rights, and Policy. (By Nicholas J. Johnson , David B. Kopel , George A. Mocsary , Michael P. O’Shea.) Three of the four co-authors (Johnson, Kopel, and Mocsary) will be there. Our tentative plan is to hang around Fordham for a little while, and then proceed to P.J. Clark’s at 44 W. 63rd Street in Manhattan. VC readers are welcome to join us.

Or if you would just like to buy the book, you can order it from Amazon, or from the Aspen Publishers link, above.

But women, especially young women, are particularly likely to be targets of rape. See, e.g., table 4 of this document reporting 2008 data and table 4 of this document reporting 2007 data, reporting an aggregate approximately 0.5% per year rate of attempted or completed rape or sexual assault for women age 20 to 24. This is likely not as high as the attempted or completed robbery rate for men who carry valuables, but it might well be comparable when you multiply probability of the crime by the gravity of the damage to the victim.

In a sense, the women are transporting something that is likewise seen by some criminals as especially worth taking — their bodies. When people who carry lots of money are entitled to tools that help them protect their property (and also help them protect themselves against the death or bodily injury that may stem from attacks by robbers), why shouldn’t young women be entitled to similar tools that help them protect their bodily integrity (and also help them protect themselves against the death and further bodily injury that may stem from attacks by rapists)?

Of course, I recognize that if young women are allowed to carry guns to protect themselves against rape, it will be politically difficult to avoid extending the same right to older women, and politically and constitutionally difficult to avoid extending the same right to men. Thus, the licenses given to people, mostly relatively rich and mostly men, to defend against robbery will lead to less gun carrying than licenses given to young women to defend against rape. But is that basis enough to allow the money-carriers guns to defend against a less serious crime, but to deny the young women guns to defend against a more serious crime?

But the court held that 18 U.S.C. § 922(h), which bars people from knowingly possessing guns “in the course of … employment” “while being employed for any person” who is himself a felon possessing guns. (Here, the defendants were allegedly members of the Pagans Motorcycle Club, and were allegedly taking instructions from a club leader who was a convicted felon.) Among other things, the court held that,

Section 922(h) is … limited in [important] respects: temporally, an individual is only precluded from possessing a firearm while acting in the course of his employment for a prohibited person, and he is free to regain his right to possess firearms by simply parting with the employment relationship. To be quite clear, even an individual who maintains an employment relationship with a prohibited person may lawfully possess firearms, provided he is not acting in the course of employment at the time of the firearm possession. From this discussion, it is clear that Congress tailored the prohibition in § 922(h) to cover only certain individuals at certain times and when they act in certain ways. In other words, the scope of § 922(h) is effectively limited to vicarious possession by prohibited persons, although it penalizes the proxy rather than the prohibited person. It is a commonsense extension of the prohibitions contained in § 922(g). Just as § 922(g) strips firearms from the possession of prohibited persons, § 922(h) effectively strips firearms from their control.

The court does not discuss the situation where someone is employed “for” (the statutory requirement) a person, but whose gun-related actions are not controlled by a person — for instance, if a felon contracts with a security company to provide him with a full-time bodyguard. In that situation, I would think that the bodyguard is “employed for” the felon, though not employed by the felon. Likewise, the court does not discuss what happens when § 922(h) is applied to people who are “employed for” other people who aren’t themselves allowed to possess guns, such as nonresident (but legally admitted) aliens, people who have a history of mental problems, and the like. Section 922(h) applies to anyone who is “employed for” a person who is legally not allowed to possess guns himself, whether because of felony or some other disqualifying characteristic.

I would think that in many such situations the bodyguard’s own Second Amendment rights — including such rights exercised in a place that the bodyguard and the protected person are using as a temporary home — should prevail, at least if the bodyguard is responsible to a security company even though he is “employed for” the company’s client. But perhaps that could be avoided by construing “employed for” narrowly; in this case, the government’s claim is that the defendant’s gun use was indeed being controlled by the felon motorcycle club leader.

Woollard v. Sheridan (D. Md. Mar. 2, 2012) holds that this unconstitutionally restricts the rights of law-abiding people who want to carry for personal protection based precisely on the “apprehension of an average person,” with no “objectively heightened threat.” The court follows Fourth Circuit precedent (United States v. Masciandaro) in holding that restrictions on gun possession outside the home are subject to “intermediate scrutiny,” i.e., must be (in the district court’s words) “reasonably adapted to a substantial governmental interest.” But these terms are notoriously vague — what’s significant is the meaning the court gives them in this context:

The Maryland statute’s failure lies in the overly broad means by which it seeks to advance this undoubtedly legitimate end [of public safety]. The requirement that a permit applicant demonstrate “good and substantial reason” to carry a handgun does not, for example, advance the interests of public safety by ensuring that guns are kept out of the hands of those adjudged most likely to misuse them, such as criminals or the mentally ill. It does not ban handguns from places where the possibility of mayhem is most acute, such as schools, churches, government buildings, protest gatherings, or establishments that serve alcohol. It does not attempt to reduce accidents, as would a requirement that all permit applicants complete a safety course. It does not even, as some other States’ laws do, limit the carrying of handguns to persons deemed “suitable” by denying a permit to anyone “whose conduct indicates that he or she is potentially a danger to the public if entrusted with a handgun.”

Rather, the regulation at issue is a rationing system. It aims, as Defendants concede, simply to reduce the total number of firearms carried outside of the home by limiting the privilege to those who can demonstrate “good reason” beyond a general desire for self-defense….

A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered “reasonably adapted” to a government interest, no matter how substantial that interest may be. Maryland’s goal of “minimizing the proliferation of handguns among those who do not have a demonstrated need for them” is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly. Those who drafted and ratified the Second Amendment surely knew that the right they were enshrining carried a risk of misuse, and states have considerable latitude to channel the exercise of the right in ways that will minimize that risk. States may not, however, seek to reduce the danger by means of widespread curtailment of the right itself.

I think this result is correct — as I read Heller, it recognize a right to keep and bear arms for purpose of self-defense, and self-defense is needed wherever a person happens to be, not just in the home. (See pp. 1516-1524 of my Implementing the Right to Keep and Bear Arms in Self-Defense article.) Heller does approve of some historically recognized limitations on the right, such as bans on concealed carry or bans on carrying into particular “sensitive places.” But I think the logic and language of Heller suggests that the right does extend to other sorts of carrying outside the home. And while I think that talk of “intermediate scrutiny” isn’t very helpful here, the district court’s analysis in applying intermediate scrutiny seems to me to be quite right.

This having been said, most recent court decisions that have squarely considered the matter have upheld broad restrictions on carrying, though some — like the Fourth Circuit — have suggested that such restrictions’ constitutionality remains unsettled, and a Puerto Rico appellate decision reached the same result that this Maryland federal court decision did. Indeed, Maryland’s highest court has upheld the Maryland statute, concluding that gun possession outside the home is outside the Second Amendment; it’s possible to read that decision more narrowly as simply upholding the permitting requirement but leaving open the question whether permits must be granted to pretty much all law-abiding applicants, but I think the logic of the Maryland high court opinion is broader than that, and would lead to the rejection of the very claim that the federal district court accepted in this case.

So it will be interesting to see what the Fourth Circuit does with this on appeal. And if the Fourth Circuit agrees with the district court, that will likely be seen as creating a split between the Fourth Circuit and Maryland’s highest court — plus state courts in some other states — which would mean there would be a substantial chance that the Supreme Court will agree to hear the case. (If the Fourth Circuit reverses the district court, and rejects the Second Amendment claim, then the Supreme Court will be quite unlikely to grant review.)

UPDATE: Whoops — David Kopel beat me to this.

Also, I forgot to note that, while most of the post-Heller cases that have considered whether the Second Amendment secures a right to keep and bear arms outside the home — cases from generally not very gun-friendly states, such as California, Illinois, Maryland, and Massachusetts — have rejected such a right to carry, most of the pre-Heller cases asking the same question about state constitutional rights to keep and bear arms have recognized a right to carry.

For cases or attorney general opinions holding or suggesting that there is a right to carry openly, see State v. Reid, 1 Ala. 612, 619 (1840) (dictum), reaffirmed, Hyde v. City of Birmingham, 392 So. 2d 1226, 1228 (Ala. Crim. App. 1980); Dano v. Collins, 802 P.2d 1021 (Ariz. Ct. App. 1990), review granted but later dismissed as improvidently granted, 809 P.2d 960 (Ariz. 1991); Nunn v. State, 1 Ga. 243 (1846), reaffirmed, Strickland v. State, 72 S.E. 260, 264 (Ga. 1911); In re Brickey, 70 P. 609 (Idaho 1902); Holland v. Commonwealth, 294 S.W.2d 83, 85 (Ky. 1956) (dictum); State v. Chaisson, 457 So. 2d 1257 (La. Ct. App. 1984); City of Las Vegas v. Moberg, 485 P.2d 737 (N.M. Ct. App. 1971); State v. Kerner, 107 S.E. 222 (N.C. 1921); State v. Nieto, 130 N.E. 663, 664 (Ohio 1920) (dictum), reaffirmed, Klein v. Leis, 795 N.E.2d 633, 638 (Ohio 2003); Glasscock v. City of Chattanooga, 11 S.W.2d 678 (Tenn. 1928); State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139 (W. Va. 1988); La. Op. Att’y Gen. No. 80- 992 (1990); Wisconsin Department of Justice Advisory Memorandum (Apr. 20, 2009), http://www.doj.state.wi.us/news/files/FinalOpenCarryMemo.pdf.

For cases holding the right extends even to carrying a concealed weapon, though perhaps regulated through a nondiscretionary licensing regime, see Kellogg v. City of Gary, 562 N.E.2d 685, 705 (Ind. 1990); Schubert v. DeBard, 398 N.E.2d 1339 (Ind. Ct. App. 1980); Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822), abrogated as to concealed carry but not as to open carry by Ky. Const. of 1850, art. XIII, § 25; State v. Rosenthal, 55 A. 610, 610–11 (Vt. 1903); State v. Vegas, Case No. 07 CM 687 (Cir. Ct. Milwaukee County Sept. 24, 2007), available at http://www.law.ucla.edu/volokh/vegas.pdf (concluding that under State v. Hamdan, 665 N.W.2d 785 (Wis. 2003), the right to bear arms may include the right to concealed carry in some narrow circumstances, especially where the person is engaging in dangerous activity such as delivering pizzas in high-crime areas).

Oregon courts take the view that the right extends to carrying weapons openly, but allows restrictions on carrying loaded guns, so long as the law allows the carrying of both an unloaded gun and ammunition. See State v. Delgado, 692 P.2d 610, 614 (Or. 1984) (striking down total ban on carrying switchblade knives); Barnett v. State, 695 P.2d 991 (Or. Ct. App. 1985) (per curiam) (striking down a total ban on carrying blackjacks); State v. Boyce, 658 P.2d 577, 578–79 (Or. Ct. App. 1983) (upholding a requirement that handguns be carried unloaded). The Louisiana Chaisson decision struck down a very limited carrying ban — one that applied only while hunting frogs at night — but its reasoning suggested that there was a constitutional right to carry for self-defense (including self-defense against alligators). 457 So. 2d at 1259; see also State v. Chandler, 5 La. Ann. 489, 490 (1850) (taking this view with regard to the Second Amendment). City of Lakewood v. Pillow, 501 P.2d 744 (Colo. 1972), also struck down a carry ban because it was broad enough to ban gun stores, ban people “from transporting guns to and from such places of business,” and ban people from “possess[ing] a firearm in a vehicle or in a place of business for the purpose of self-defense”; the court concluded that “[s]everal of these activities are constitutionally protected,” which suggests that carrying in a car might have been protected. Id. This is consistent with the Colorado right to bear arms’ express exclusion of “the practice of carrying concealed weapons,” Colo. Const. art. II, § 13, which suggests that carrying weapons unconcealed would be presumptively protected.

All these cases speak of carrying in most public places; they often leave room for restrictions on carrying in particular places, such as businesses that serve liquor, churches, or polling places.

For some state courts’ decisions that a state constitutional right to keep and bear arms does not extend outside the home, see City of Cape Girardeau v. Joyce, 884 S.W.2d 33 (Mo. Ct. App. 1994); Pierce v. State, 275 P. 393 (Okla. Crim. App. 1929); i, 272 A.2d 275, 278–79 (Pa. Super. Ct. 1970), vacated, 292 A.2d 410 (Pa. 1972); Masters v. State, 685 S.W.2d 654 (Tex. Crim. App. 1985) (per curiam). But see Cockrum v. State, 24 Tex. 394, 401–02 (1859) (taking the view that the right to bear arms includes the right to carry them); Galloway v. State, 69 S.W.2d 89, 90 (Tex. Crim. App. 1933) (per curiam) (likewise).

As explained in the district court’s Dec. 2010 ruling, rejecting a motion to dismiss:

Plaintiff Woollard initially obtained a handgun carry permit after he was assaulted by an intruder in his home in 2002. The permit was renewed in 2005. At that time, the intruder had recently been released from prison, providing a “good and substantial reason” for Woollard to carry a firearm. In 2009, Woollard again sought to renew his permit so that he could carry a handgun for self defense. MSP Secretary Sheridan denied Woollard’s application, however, because Woollard failed to provide sufficient evidence “to support apprehended fear.”

At issue in the case is the Maryland statute which says that the Secretary of the State Police can issue a carry permit if  the applicant “has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.” Md.Code Ann., Pub. Safety § 5-306(a)(5)(ii).

In today’s decision on the merits, the “good and substantial reason” requirement was ruled to violate the Second Amendment. The court held that the Second Amendment right is not limited to self-defense in the home. It also includes the militia and hunting. None of the Second Amendment rights can logically be confined solely to the home: “In addition to self-defense, the right was also understood to allow for militia membership and hunting. To secure these rights, the Second Amendment‘s protections must extend beyond the home: neither hunting nor militia training is a household activity, and ‘self-defense has to take place wherever [a] person happens to be’.”

The internal quotation, by the way, is from Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009). Based on judicial citations, the Volokh article appears to be by far the most influential post-Heller  article on the Second Amendment.

The Maryland carry license law was not “narrowly tailored,” says the Woollard opinion. Moreover, “A citizen may not be required to offer a ‘good and substantial reason’ why he should be permitted to exercise his rights.” Rather, “The right’s existence is all the reason he needs.”

The case is headed to the Fourth Circuit, which has a mixed record on Second Amendment issues. From there, Woollard could be the case in which the Supreme Court chooses to tell recalcitrant lower federal courts that Heller and McDonald really do mean what they say: that the Second Amendment includes the right to carry, albeit not in “sensitive places,” and the government may, if it wishes, require that carry be open rather than concealed.

The SAF press release is here, and a terse AP story is here. Congratulations to Alan Gura and to SAF President Alan Gottlieb!

Stegmeier allowed Kelley to live in his RV …. Stegmeier testified that when he helped move Kelley into the RV he told Kelley, “My Pistol is in the closet.” At the time law enforcement was searching the RV on December 22, 2010, the pistol was not in the closet as Stegmeier had advised them it would be. Agent Legg testified that Stagmeier told him on December 22, 2010, that Kelley must have moved the gun and that they should check under the pillow because that is where Kelley usually kept the gun. The .357 handgun was eventually located in a compartment within arm’s reach of the bed in the RV.

The evidence at trial supports a jury finding that Stegmeier disposed of the gun to Kelley. Stegmeier allowed Kelley the use of his RV and advised him of the location of the gun within the RV. Kelley had the power of disposal of the .357 handgun. There is further evidence that Stegmeier was aware that Kelley would have moved and exercised control over that handgun. There was sufficient evidence to convict Stegmeier of the charges under 18 U.S.C. § 922(d)….

Note that the jury wasn’t required to find that Stegmeier knew Kelley was ineligible to possess a gun, only that he had “reasonable cause to believe” this. Likewise, it seemed to be sufficient that Stegmeier informed Kelley of where the gun is — something that might have happened if the gun were visible (e.g., hanging on the wall) or was just casually exposed to Kelley, for instance if Kelley saw Stegmeier handle the gun and return it to its proper place. And while Stegmeier seemed to know that Kelley actually handled the gun, that didn’t seem to be required under the court’s reasoning, and as best I can tell the jury never had to find such knowledge. Finally, while Kelley lived in the RV for months, the same logic would apply to shorter visits as well; § 922(d) has no requirement of long-term access.

So if you have house-guests that you have “reasonable cause to believe” have a felony conviction, or have once been in a mental hospital, or are nonresident aliens (even if legal aliens), and they see where your gun is, you might well be guilty of a federal felony on the theory of this case.

In 1876, the new State of Colorado adopted a constitution that included a provision in its bill of rights establishing a right to keep and bear arms in defense of one’s home, person, and property:

The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called into question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

Colo. Const. art. II, § 13 (section 13) (emphasis added). This provision has never been amended.

During the twentieth century, the Colorado General Assembly enacted a statute making possession of a weapon by a previous offender (POWPO) unlawful. § 18-12-108(1), (2)(a), C.R.S. 2011. Although the POWPO statute does not refer to section 13, in People v. Ford, 193 Colo. 459, 462, 568 P.2d 26, 28 (1977), the supreme court held that a defendant may raise an affirmative defense to a POWPO charge under section 13 by presenting competent evidence that his or her purpose in possessing weapons was defense of home, person, and property.

Beginning in 1983, the stock jury instructions utilized by trial courts in Colorado have included an instruction following Ford:

It is an affirmative defense to the crime of [POWPO] that the defendant possessed the weapon for the purpose of defending his [home] [property] [person].

See COLJI-Crim. H:51 (2008). In recent years, however, some prosecutors have asked trial courts to alter the stock instruction by adding a requirement that the defendant’s purpose in possessing the weapons arises from a reasonable belief in a threat of imminent harm….

In this case, defendant, Joddy Leon Carbajal, appeals the judgment of conviction entered on jury verdicts finding him guilty of two POWPO counts. He argues that the trial court committed reversible error when it rejected his tender of the stock jury instruction regarding his affirmative defense to the POWPO charges and instead utilized a version provided by the prosecution, which added language concerning a reasonable belief of a threat of imminent harm. We agree, reverse the judgment of conviction, and remand for a new trial….

By virtue of section 13, a defendant presenting competent evidence that his or her purpose in possessing weapons was defense of home, person, and property raises an affirmative defense to a POWPO charge. Ford, 193 Colo. at 462, 568 P.2d at 28; People v. DeWitt, ___ P.3d ___, ___, 2011 WL 4089974, *4 (Colo. App. No. 10CA1271, Sept. 15, 2011). As long as the defendant presents some credible evidence, or a “scintilla” of evidence, in support of the affirmative defense, the jury decides whether the defendant possessed a weapon for a constitutionally protected purpose. If the defendant presents such evidence, the prosecution then has the burden of disproving the affirmative defense beyond a reasonable doubt….

The People argue that, without an “imminent threat” requirement, the POWPO statute would be unenforceable, in effect a “dead letter” allowing previous offenders to carry firearms. We are unconvinced for three reasons.

First, the verdict form asked only whether defendant possessed a weapon. There was no contention at trial that he used or carried the guns in his home.

Second, while a defendant need only present some credible evidence that his or her purpose in possessing weapons was for the defense of person, home, and property, the prosecution is not limited in the arguments it can make to disprove the affirmative defense. The arguments the prosecution made in this case could have been made under the stock jury instruction, as the jury ultimately chooses whether to believe a defendant’s assertion of purpose. Compare DeWitt, ___ P.3d at ___, 2011 WL 4089974, *6 (the defendant was entitled to the stock jury instruction where he presented some credible evidence of a constitutionally protected purpose for weapon possession), with People v. Barger, 732 P.2d 1225, 1226 (Colo. App. 1986) (the defendant was not entitled to affirmative defense instruction where he presented no evidence that public possession of weapon in a bar was based on any threat to his person, home, or property).

Third, the supreme court’s decision in Ford has been on the books for over thirty-four years. Our supreme court is the final arbiter of our state constitution, and we are bound by its precedent….

In District of Columbia v. Heller, 554 U.S. 570, 630, 635 (2008), the United States Supreme Court held that the Second Amendment to the United States Constitution protects a personal right to keep and bear arms for self-defense and “defense of hearth and home.” The Court concluded that “nothing in our opinion should be taken to cast doubt on the longstanding prohibitions of the possession of firearms by felons.” Heller, 554 U.S. at 626. Numerous federal courts have followed Heller in upholding the constitutionality of the federal counterpart to POWPO, 18 U.S.C. § 922(g)(1). See, e.g., United States v. Torres-Rosario, 658 F.3d 110, 113 n.1 (1st Cir. 2011) (collecting cases); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009). [Footnote: Judge Tymkovich stated in his concurring opinion in McCane that the language in Heller regarding the constitutionality of felon in possession statutes was dictum, but also observed that “Supreme Court dicta bind[] us ‘almost as firmly as … the Court’s outright holdings.’” 573 F.3d at 1047 (quoting Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008)). Other courts have concluded that the language was not dictum. See, e.g., United States v. Barton, 633 F.3d 168, 171 (3d Cir. 2011) (collecting cases).]

Commentators, what do you think of this? Does is raise Fourth Amendment concerns? Second Amendment issues? Any other constitutional or policy questions?

Benjamin Small and Nathan Rehlander were each involuntarily admitted to psychiatric hospitals under Maine’s “emergency procedure,” Me. Rev. Stat. tit. 34-B, § 3863 (2011), and each was later convicted for possessing firearms after having been “committed to a mental institution.” 18 U.S.C. § 922(g)(4) (2006). This court has previously held that a section 3863 hospitalization qualifies as a “commitment” under section 922(g)(4), United States v. Chamberlain, 159 F.3d 656, 665 (1st Cir. 1998), but appellants say that District of Columbia v. Heller has altered the equation….

Maine has two procedures for involuntary psychiatric hospitalization. Section 3863 provides for temporary hospitalization following ex parte procedures — that is to say, without an adversary proceeding. The procedures include an application by a health or law enforcement officer, a certifying medical examination by a medical practitioner, and an endorsement by a judge or justice of the peace confirming that these procedures have been followed.

For full scale commitments (as opposed to temporary hospitalization), Maine requires a traditional adversary proceeding, Me. Rev. Stat. tit. 34-B, § 3864, culminating in a judicial determination as to whether the subject both is mentally ill and poses a danger to himself or others. This procedure is described in the statute as a “commitment,” not “emergency hospitalization,” and one consequence is that under Maine law, a section 3864 commitment causes a loss of the right to possess firearms….

[Appellants claim] that, given Heller‘s pronouncement of an individual constitutional right to possess arms, the ex parte procedures employed under section 3863 may justify temporary hospitalization but not a permanent deprivation of the right to bear arms — permanent given the lack of any meaningful way ever to recapture that right.

We conclude that this claim is sufficiently powerful that the doctrine of constitutional avoidance requires us to revisit our prior interpretation of section 922(g)(4); and, in doing so, we conclude that section 3863 proceedings do not qualify as a “commitment” for federal purposes….

Chamberlain, at the time it was rendered, was a reasonable albeit not compulsory reading of section 922(g)(4). Although section 3863 did not use the word “commitment” and its procedures were effectively ex parte, it was clear from section 922′s legislative history cited in the decision that Congress intended an expansive interpretation. Other circuits reached differing conclusions regarding emergency hospitalization procedures similar to section 3863, but none indicated that there was a constitutional dimension to the problem.

Heller now adds a constitutional component. Although the right established in Heller is a qualified right, the right to possess arms (among those not properly disqualified) is no longer something that can be withdrawn by government on a permanent and irrevocable basis without due process. Ordinarily, to work a permanent or prolonged loss of a constitutional liberty or property interest, an adjudicatory hearing, including a right to offer and test evidence if facts are in dispute, is required. It is evidently doubtful that a section 3863 commitment provides the necessary process for a permanent deprivation.

Section 3863 permits three-day involuntary hospitalizations (earlier it was five days) without any adversary proceeding and with no finding by an independent judicial or even administrative officer that the subject is either mentally disturbed or dangerous. True, there must be an application to a judge and a certification by a “medical practitioner”; but the judge merely determines that the procedural steps have been taken and makes no substantive findings. And the subject is never heard by the judge, through counsel or otherwise.

This is all that is practical for an emergency hospitalization, and for this purpose, we agree with the Maine courts that it is the only process that is due. An observer has provided facts, a medical professional has assessed mental illness and a threat to the immediate safety of the subject or others, and hospitalization is limited to a few days unless voluntarily extended by the subject or extended by a court under protective procedures.

By contrast, involuntary commitment under section 3864 is allowed only after a court holds an adversary hearing providing counsel for the patient and an opportunity to testify and to call and cross-examine witnesses. The committing court must then itself determine whether there is clear and convincing evidence that the patient is mentally ill and poses a likelihood of serious harm, and whether better alternative arrangements exist. .

The Supreme Court made clear in Heller that its decision did not undercut traditional restrictions on the possession of arms by those who were mentally ill. But nothing suggests that the Court was there addressing a permanent ex parte deprivation of its newly recognized constitutional right. And, given ordinary due process requirements that the Court has adopted in the past, it is highly doubtful that it would deem section 922(g)(4) adequate if it were read to embrace the Maine emergency hospitalization — at least absent further protective procedures or remedies.

This would be a different case if section 922 addressed ex parte hospitalizations and provided for a temporary suspension of the right to bear arms pending further proceedings. It could also be different if section 922 permitted one temporarily hospitalized on an emergency basis to recover, on reasonable terms, a suspended right to possess arms on a showing that he now no longer posed a risk of danger. In all events, right now there is no recovery procedure in Maine that would avoid the ban of section 922.

The Attorney General can grant relief from firearms disability, 18 U.S.C. § 925(c), but Congress has prohibited action on such petitions since 1992. Congress has also allowed states to develop a “relief from disabilities program,” but Maine’s program has not been approved by the Attorney General….

The constitutional doubts raised by such a regime are sufficient that we now conclude that section 922 should not be read to encompass a temporary hospitalization attended only by the ex parte procedures of section 3863. The ordinary rule is that statutes are to be read to avoid serious constitutional doubts, if that course is possible, and it is readily possible here. Indeed, some circuit courts had read procedures like section 3863 not to create disability even without constitutional doubts awakened by Heller….

[T]he government points to evidence that Small and Rehlander were mentally ill and dangerous both at the time of their emergency admissions and when they possessed firearms. But in section 922, Congress did not prohibit gun possession by those who were or are mentally ill and dangerous, and such a free floating prohibition would be very hard to administer, although perhaps not impossible. This is why, as with the ban on prior felons, Congress sought to piggyback on determinations made in prior judicial proceedings to establish status.

Thus, section 922(g)(4) does not bar firearms possession for those who are or were mentally ill and dangerous, but (pertinently) only for any person “who has been adjudicated as a mental defective” or “has been committed to a mental institution.” As we read section 922 in light of the concerns already discussed, a temporary hospitalization under section 3863 does not constitute a “commitment” under section 922 — just as it clearly does not constitute a commitment under Maine law itself….

This strikes me as quite right: The Court did state that the Second Amendment right did not extend to certain people, including the mentally ill. But this doesn’t mean that Second Amendment rights can be permanently lost based simply on a government official’s determination of mental illness, made without any adversarial proceeding at which the defendant can make his case. Just as so-called “First Amendment Due Process” rules (including ones against speech-restrictive injunctions imposed based on an ex parte, nonadversarial hearing) protect free speech rights, so courts must recognize Second Amendment Due Process principles to protect the right to keep and bear arms.

Note also that the statement in Heller about the constitutionality of bans on gun possession by “the mentally ill” doesn’t on its face dispose of bans on people who were once mentally ill, perhaps many years ago. But that is a separate question.

In November, 2001, [Charles] Milot was released on probation from the Billerica house of correction after an incarceration of about eighteen months. [Thomas] Hughes testified in his deposition that he helped Milot to get reestablished by loaning him a small amount of money and giving him odd jobs to do around his house. [During the pendency of this action, Hughes died, and his daughter, Hughes-Ortiz, was substituted as a party defendant.] Hughes knew Milot through Milot’s sister, Deborah McConologue, and her husband, whom Hughes had known for twenty years. Hughes was aware of Milot’s history of substance abuse, prior depression, and the loss of Milot’s driver’s license.

In his deposition, Hughes testified that he owned several firearms that he stored in a chest in a second-floor bedroom. The bedroom was kept locked and had been outfitted with barred windows. Hughes testified that he kept the keys to this bedroom in a vase on top of the fireplace.

One of the firearms that Hughes owned was a Glock pistol. Hughes purchased the Glock pistol and its storage container in 2000 from the widow of a former Boston police officer. Hughes testified in his deposition that he stored the unloaded pistol as well as its magazine in its storage container in a chest drawer in the same bedroom where his other guns were stored….

In her deposition testimony, McConologue reported that, at a family event held on February 23, 2002, Milot showed her two handguns and two loose cartridges … [and] told her that he got them from Hughes’s house. She further testified that Milot told her that he found the key in Hughes’s house for the locked bedroom door, unlocked the door, and found the guns, ultimately taking them from Hughes’s home. McConologue testified that she advised her brother to call Hughes and return the pistols to him, that Milot did not want to tell Hughes that he had taken the guns, but that Milot agreed to put them back the way he had found them.

On February 25, 2002, Hughes picked up Milot around 7:00 A.M. and brought Milot to his house. Once they were at Hughes’s house, Hughes showed Milot the front doorbell that he wanted Milot to repair. Hughes then left his house to run some errands, returning to check on Milot’s progress about two hours later. When Hughes returned home, he found Milot’s body covered with blood in the front doorway of his home. The police and an ambulance were called and upon their arrival, Milot was pronounced dead. An autopsy was performed, and it was determined that Milot had suffered a gunshot wound to his left thigh which severed the femoral artery and caused Milot to bleed to death…. Police speculated that “[a]pparently the victim was attempting to put the gun back in the container when the round was fired, striking the victim in the upper left leg…. The victim apparently walked out of the bedroom, down the front stairs, into the living room, used the telephone and walked to the front door where he collapsed and died.” …

Milot, through an affirmative act of theft in violation of G.L. c. 266, § 30, stole a firearm from the home of Hughes, the owner, who had placed trust in him. We conclude that public policy dictates that Milot’s criminal conduct acts as a bar to recovery. See, e.g., Flanagan v. Baker, 35 Mass.App.Ct. 444, 448-449 (1993) (“A ‘burglar who breaks his leg while descending the cellar stairs, due to the failure of the owner to replace a missing step’ … could be denied recovery for public policy considerations”); Driscoll v. Board of Trustees of Milton Academy, 70 Mass.App.Ct. 285, 291-292 (2007) (student who committed statutory rape violated the law as well as “social values and customs” and “may not recover in tort against the school for his own sexual misconduct”)….

Our conclusion is further buttressed by Restatement (Second) of Torts, and Milot’s criminal acts — stealth of the pistol, and violation of 18 U.S.C. § 922(g)(1) (2006), which bars the possession of firearms and ammunition by convicted felons…. Milot’s actions constitute the sort of conduct described in Restatement (Second) of Torts § 889 comment b (1977), whereby a plaintiff is “barred from recovery for harm caused by violation of [a] statute … [where] the harm resulted from a risk of the type against which the statute was intended to give protection.” See § 889 comment b, supra, illustration 5…. [I]n enacting the Gun Control Act of 1968 (which includes 18 U.S.C. § 922[g][1], of which Milot was in violation), Congress sought to “curb crime by keeping ‘firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.’ In order to accomplish this goal, Congress obviously determined that firearms must be kept away from persons, such as those convicted of serious crimes, who might be expected to misuse them.” See also Barrett v. United States, 423 U.S. 212, 218 (1976) (“Congress … sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous”)….

The plaintiff brought claims of breach of the implied warranty of merchantability, negligence, wrongful death, and unfair and deceptive acts and practices against Glock…. The judge granted summary judgment on all claims after finding that the Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901-7903 (2006) (PLCAA or Act) barred the plaintiff’s claims against Glock….

The plaintiff alleges that the Glock pistol and gun case “were defective because the [gun] case caused the loaded Glock … pistol … to discharge through the case and because the pistol was likely to discharge unintendedly” and that “Glock so negligently and carelessly designed the Glock Model 17 pistol and storage case … that the pistol discharged into the Decedent’s body mortally wounding the Decedent.” The plaintiff’s claims of breach of the implied warranty of merchantability and design defect are thus based on the interaction between the Glock pistol and the gun case. We now consider whether the claims, as formulated by the plaintiff, are barred by the PLCAA….

[The PLCAA presumptively bars "any] civil action or proceeding … brought by any person against a manufacturer … of a qualified product, … for damages, punitive damages, … abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party….” … The parties do not dispute that the Glock pistol is a “firearm” and therefore a “qualified product” under the PLCAA …. [Plaintiff argues that] the gun case is not a qualified product, and thus the PLCAA does not bar her suit against Glock[, but a]s this argument was not made in the trial court in the first instance, the argument is waived. We express no opinion as to whether the PLCAA would preclude or permit a future plaintiff to bring claims involving the interaction between qualified and nonqualified products.

The final element of the definition of a “qualified civil liability action” is that the civil action “result[ed] from the criminal or unlawful misuse of a qualified product by the person or a third party.” The Act defines “unlawful misuse” to mean “conduct that violates a statute, ordinance, or regulation as it relates to the use of a qualified product.” The plaintiff argues that “[t]he PLCAA is inapplicable because there was no evidence supporting the conclusion that the gun was misused, whether criminally, unlawfully or otherwise.” … [But] in violation of 18 U.S.C. § 922(g)(1), Milot possessed a firearm and ammunition after having been convicted of a felony. Since the civil action at issue here resulted from Milot’s possession of the Glock pistol, which constituted “criminal or unlawful misuse” due to Milot’s prior felony conviction, this is a “qualified civil liability action.” …

People generally have a Second Amendment right, the Court has held, to have guns in their homes. Most of us could keep a handgun in our nightstands, for instance, setting aside special questions about laws requiring locked storage of guns when children are around. (Those questions are potentially similar to the ones I talk about here, but different enough that I didn’t want to focus on them at this point.)

But federal law bars several classes of people from possessing guns, see 18 U.S.C. § 922(g)(1), including:

1. Anyone who has ever been convicted in any court of a crime punishable by imprisonment for a term exceeding one year (unless the person’s civil rights have been restored, a procedure that isn’t available for federal crimes and isn’t available in some states),
2. anyone who has ever “been adjudicated as a mental defective or who has
   been committed to a mental institution,”
3. anyone who has ever been convicted in any court of a misdemeanor domestic violence crime,
4. any nonresident alien (with limited exception).

What kinds of restrictions should the government be able to impose on those who live with people who fit in these categories — for instance, because they’re married to those people, have those people as adult children or parents who are living with them, or have those people as houseguests or roommates? Say, for instance, that a visitor comes to stay with a gun owner for a week from outside the country, or the gun owner’s relative who has a long-ago criminal record comes to visit. May the government categorically ban gun possession in the home by people who live with (or temporarily have as houseguests) such prohibited persons, on the theory that such possession in the home necessarily means the prohibited persons possess the gun as well?

May the government ban only the unlocked storage of guns in the home (except when the gun is being physically held by the owner)? Ban even locked storage, unless the lock is a combination lock and the prohibited person never learns the combination, or the lock has a key and the owner of the gun always keeps the key in a place where the prohibited person can’t get it? Only ban storage in common places or rooms to which the prohibited person commonly accesses, so that you can store it in your nightstand (unless the prohibited person sleeps in your room), so long as it’s understood that the prohibited person isn’t allowed in your room? Not impose any bans at all, except for the prohibition on the prohibited person actually picking up the gun?

I’d like to get at exactly how these people’s gun possession might be restricted, rather than just relying on generalities such as “constructive possession.”

Although [Melissa] Huet is legally permitted to possess a firearm, [her housemate and boyfriend Marvin] Hall was convicted in 1999 of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and is therefore prohibited from owning or possessing a firearm. After being informed of [a raid on her house that uncovered guns], Huet allegedly told investigators that the guns in the house belonged to her and that it was not illegal for her to purchase weapons. Despite Huet’s assertions that she alone possessed the SKS rifle, the Government sought and obtained an indictment charging Hall with illegal possession of the weapon, and Huet with aiding and abetting Hall’s possession….

[Huet moved to dismiss the indictment, arguing] that even if Count Three did state an offense for aiding and abetting a felon in possession, under the factual scenario presented in this case, the charge violated her rights under the Second Amendment. The District Court agreed, finding that “to permit [the] Indictment to go forward … would be [to] countenanc[e] the total elimination of the right of a sane, non-felonious citizen to possess a firearm, in her home, simply because her paramour is a felon.” “[T]o punish Huet, who has not been convicted of a felony … as a principal, violates the core of the Second Amendment right to keep arms,” the Court opined, because the conduct alleged to have aided and abetted was “purely possessory.” Although the District Court did not explicitly designate the Second Amendment violation as an alternative basis for dismissal, it clearly viewed it as such. Accordingly, we must address both the sufficiency of the Indictment and the Second Amendment challenge….

[T]he District Court erred to the extent that it imposed a heightened pleading standard for offenses under 18 U.S.C. § 922(g)(1) and § 2 [the federal aiding and abetting statute -EV]. The District Court dismissed Count Three based on its determination that “[t]he facts in the Indictment fail[ed] to set forth any allegations to support the conclusion that … Huet aided and abetted … Hall in his unlawful possession of the SKS rifle.” The District Court faulted the Government for failing to include “any specifics” as to how Huet aided Hall, and determined that the Government simply “charge[d] its conclusion.” Although some offenses must be pled with greater specificity than the “plain, concise, and definite written statement” contemplated by Rule 7(c)(1), we have never held aiding and abetting a felon in possession under 18 U.S.C. § 922(g)(1) and § 2 to be such an offense, and we decline to do so now….

[As to the Second Amendment,] Huet argues that based on the circumstances of her case, she cannot constitutionally be charged with aiding and abetting a felon to possess a firearm. Specifically, she contends that the Government’s only evidence is that she possessed the SKS rifle in her home while living with a convicted felon. The District Court agreed, finding that “to permit [the] Indictment to go forward” would be to “countenance[e] the total elimination of the right of a sane, non-felonious citizen to possess a firearm, in her home, simply because her paramour is a felon.

We disagree. We cannot say that an indictment which properly alleges aiding and abetting a felon in possession under 18 U.S.C. § 922(g)(1) and § 2 violates the Second Amendment under Heller. Applying Marzzarella [a recent Third Circuit precedent -EV], a properly-brought aiding and abetting charge does not burden conduct protected by the Second Amendment. The District Court’s characterization of the Indictment as seeking to criminalize the otherwise legal possession of a firearm by a non-felon simply because she lives with a felon is misleading. The Indictment does not allege that Huet’s possession of the SKS rifle violated the law; rather, it alleges that Huet aided and abetted Hall to possess the firearm.

We are mindful of the risk that felon dispossession statutes, when combined with laws regarding accomplice liability, may be misused to subject law-abiding cohabitants to liability simply for possessing a weapon in the home. However, in this case, the District Court’s determination that the Government overreached was premature. Huet’s arguments regarding the circumstances of her possession must await further development of the evidentiary record.

Huet’s argument that her status as a non-felon brings her case within the scope of Second Amendment protection is unavailing…. Huet would not violate § 922(g)(1) simply by possessing a firearm. She would, however, violate § 922(g)(1) and § 2 by aiding and abetting a felon to possess a firearm. Count Three charges her with the latter. Thus, the fact that she is not within the class of persons prohibited from possessing a firearm is irrelevant; her right to possess a firearm is not implicated by the charges against her. Moreover, even if part of the conduct that allegedly aided and abetted Hall’s possession involved possession of the firearm by Huet, the Second Amendment does not afford citizens a right to carry arms for “any purpose.” Huet’s right to keep the SKS rifle in her home did not give her the right to facilitate Hall’s possession of the weapon. Otherwise illegal conduct does not somehow become immunized because possession of a firearm is involved in the offense. See, e.g., United States v. Potter, 630 F.3d 1260, 1261 (9th Cir. 2011) (per curiam) (rejecting a defendant’s challenge to his conviction for possession of a firearm in furtherance of drug trafficking and concluding that “[e]ven if [the defendant] kept the firearm also to protect himself and his home,” it could not “seriously be contended that the Second Amendment guarantees a right to use a firearm in furtherance of drug trafficking ”).

“Drunk driving” (which, I would guess, the Times uses as a shorthand for lesser offenses such as driving while impaired) is a serious crime in itself. But just because a woman has three glasses of wine with dinner at a restaurant, and then gets caught in a police checkpoint, doesn’t make her some “potentially volatile” person who is going to murder somebody in an inebriated rage.

In any large population (e.g., 240,000) there will be at least a small percentage who over a period of time are found guilty of some crimes. This does not mean that that population as a whole is dangerous. It would have been useful to compare the conviction rates of North Carolinians who have carry licenses with the convictions rates of those who do not. I suspect that the non-licensee crime rate would be much higher, especially for violent gun crimes.

In a 2009 article in the Connecticut Law Review, I collected data from Minnesota, Michigan, Ohio, Louisiana, Texas, and Florida. (The state data begin on page 564 of the article.) The data show that concealed carry licensees are much more law-abiding than the general population, and that the rate of gun misuse of any sort (let alone having something to do with violence in  public place) is less than one in one thousand.

Instapundit collects some other responses to the Times‘ effort to foment hysteria and prejudice against the persons who exercise the constitutional right to carry firearms for lawful protection.

[This post was corrected in response to reader comments, including the fact that I wrongly wrote that the Times had not reported the total number of licensees.]

The reply does take issue with my description of the original article’s claims: “[N]othing in my Article or the passages he selects claims the existence of especially frequent or unduly burdensome regulation of those groups.” I don’t think that sentence in the reply is quite right, but I explain my thinking on that in my Cautionary Note itself. Here, I want to focus a couple of other statements in the reply:

A less-than-careful reader might believe, based on Professor Volokh’s Cautionary Note, that the statements he finds objectionable are of central relevance to my Article. They are not….

I provide ample support for the proposition that aspects of gun possession and use were colored by a racialized, gendered, citizenship-based, and wealth-based understanding of full membership in the American polity, including prohibitions on militia membership for several groups and restrictions on gun ownership by slaves and free blacks. This is the modest claim I intended to defend, and it is neither a novel claim nor an especially surprising one. Further, even this modest claim is ancillary to my thesis….

I also want to contextualize the importance of [Professor Volokh's] clarification to my thesis. Quite simply, nothing in my argument turns on the strong claim that colonies or states exercised their authority to enact heavy prohibitions on gun ownership or use by women and poor whites. I have no interest in pursuing that auxiliary claim, precisely because my argument does not depend on it….

Thus, even incorporating Professor Volokh’s clarifications wholesale, they do not in any way affect my arguments in Part I, which challenges citizenship limitations on textual and doctrinal grounds, or Part III, which constructs and rejects theoretical justifications for citizenship-based exclusions in an individual gun-rights regime; nor do they diminish the strength my argument in Part II, which constructs a narrative of explicit xenophobic and racialized gun prohibitions throughout American history.

I appreciate the author’s point that the factual errors that I believe I’ve found are tangential to the original article’s thesis. I think the author is likely right on that score.

But the problem is that law review articles are often cited as support for precisely such tangential assertions. Judges, professors, student authors, and lawyers who are looking for a discussion of some topic A will often find that discussion as a small section of another article on a related but different topic B. They will then gladly rely on the article’s assertions about A, without any regard to their being tangential to the cited article’s broader point. The important thing for the author of the new piece is that the material he’s found is important to his piece, not that it is important to the original piece that he is citing.

What worried me about the NYU article, and what led me to write the Cautionary Note, is not a concern about whether the article’s main thesis is inadequately supported. Rather, it’s a concern that factual errors, however tangential to the article, may end up being repeated by other authors, who are relying on the NYU article’s assertions.

Some years ago, I noticed several authors making the assertion that indentured servants, and in one instance even women and the propertyless, were routinely barred from owning guns in the Colonies and in the early Republic. All those assertions turned out to rely on Michael Bellesiles’ pre-Arming America work that made such an assertion, especially Gun Laws in Early America: The Regulation of Firearms Ownership, 1607-1794, 16 Law & Hist. Rev. 567, 574, 576 (1998):

Repeatedly, colonial legislatures passed laws requiring white Protestant adult male property holders to own guns as a support for the local militia. Just so there would be no misunderstanding, such laws forbade other groups from owning firearms…. For the rest of the colonial period [most of the colonial legislatures] enhanced internal security by forbidding indentured servants to own or carry firearms.

I looked hard for sources supporting these assertions, but to the best of my knowledge those assertions are mistaken or (as to the first sentence) at least highly misleading; I know of no colonies or early states that forbade gun ownership by indentured servants, by women, or by non-property-owners. And yet other scholars understandably relied on those assertions, and propagated them further. Who knows how many readers have been inadvertently misled by them? And that’s a danger even as to those readers who have heard about the scandals involving Bellesiles’ Arming America, since they may have seen those assertions in articles written by other, reputable scholars who happened to be relying on Bellesiles.

To be sure, this Bellesiles example involves citation of claims that were indeed pretty central to the original article’s core claims. As I mentioned, the NYU article’s errors are more tangential to its core claims. But, as I said, readers often rely on tangential assertions as much as they rely on central ones. I want to do what I can to point out those errors, so that there will be less reliance. And I wish that the editorial process as to the NYU article had identified and corrected those errors.

To summarize the information from Chapter 3 of my forthcoming textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen Publishers, available in late Jan. 2012) regarding American law pre-1800:

Women: No restrictions. Of course they did not serve in the militia. Laws requiring “householders” (whether or not they were in the militia) to have arms were common, and these usually included a woman who was the head of the house (e.g., a widow).

Free blacks: Some states had no restrictions, some states had bans on their owning guns. Free blacks served in some state militia, not in some other states, and in some states policies changed depending on military necessity. They were excluded from the federal militia by the Second Militia Act of 1792.

Slaves: Several states banned gun ownership, or allowed ownership only with the master’s permission.

Poor whites: To claim that they were excluded from gun ownership or from militia service is absurd. There were absolutely no property or wealth restrictions on gun ownership, nor on service in the militia. To the contrary, many states had programs to supply poor people with guns (“public arms”) for militia service, if they could not afford their own. Further, the laws requiring householders to be armed often required that the household provide arms to adult male servants. State laws also required that when an indentured servant finished his or her term of service, the master must provide the former servant with “freedom dues” so that the servant could begin independent life. The freedom dues were specified set of goods; in Maryland, Virginia, and North Carolina, freedom dues for male servants included a firearm. In short, the state laws of the 17th and 18th centuries in America were generally prescriptive about gun ownership by poor people, and the prescriptions were to put guns into the hands of the poor.

The author of the NYU article asserts that “arms bearing was considered congruent to voting, holding public office, or serving on juries.” That’s incorrect for “bearing” in the sense of carrying a gun for personal use, since there were no wealth, sex, age, or citizenship restrictions on carrying. And the claim is even more incorrect if “bearing” is meant in the restrictive sense of “bearing for militia service.” Militia laws always mandated service by all males (except, sometimes Blacks or Indians) in a certain age range. Period. The only exemptions were for specified professions (e.g., clergy). Militia duty was generally required starting at age 16 or 18 (which was before voting eligibility). Indeed, during the end of the 18th century and the early 19th century, one of the standard,successful, arguments for broadening the franchise by eliminating the property requirement for voting was that anyone who served in the militia deserved to vote. E.g., “Let every man who fights or pays, exercise his just and equal right in their election.” Thomas Jefferson letter to Samuel Kercheval, July 12, 1816.

Catholics: In Maryland, temporarily barred from gun ownership during the French & Indian War.

Dissenters: During the Revolution, there were plenty of instances of confiscating guns (sometimes with compensation) for militia use from people who would not take a loyalty oath to the new nation, or who would not serve in the militia (this included plenty of religious pacifists in Pennsylvania). During the early theocratic days in Massachusetts, 75 supporters of the religious dissident Anne Hutchinson were disarmed.

The author’s thesis is that illegal aliens and legal non-resident aliens should be allowed to own guns. Part of his argument is to construct and then criticize the supposedly historical “gendered,and class-stratified understanding of persons permitted to own guns.” The author could have made a stronger historical argument for his position if he had accurately described the gun laws of 17th and 18th century America.