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.

Here’s the opening of my article, plus a few items from the rest of the piece (which is only a few pages long); please go to the Legal Workshop site to read the rest, including the footnotes, and of course please also read the author’s response to my piece:

I read with interest “The People” of the Second Amendment: Citizenship and the Right To Bear Arms, and I agree with its conclusion that the Second Amendment should be read to protect law-abiding noncitizens as well as citizens. But it seems to me that there may be a mistake in the article’s historical assertions.

The article appears to assert that poor whites, women, and noncitizens were often legally barred from owning guns in the early years of the United States, or at least that they were subject to especially heavy gun controls [emphases added]:

• “[P]recolonial and early colonial gun laws in some states limited such rights [to bear arms] to subsects of the citizenry: white males deemed loyal to state interests.”
• “From the early years of the republic through the mid-twentieth century, explicit and thinly veiled alienage and racial prohibitions helped maintain racial exclusivity in firearms possession.”
• “The pre-Revolution and founding-era firearm restrictions were harbingers for the themes that have consistently pervaded gun regulation…. [S]ince only “First-Class citizens” were allowed to vote, bear arms, and serve on juries, many other citizens — poor whites, women, minors, free blacks — were denied many fundamental rights presently associated with citizenship.”
• “Pre–Revolutionary War gun regulation did not necessarily depend on categories of legal citizenship but rather on a conception of membership in the national community contingent upon race, wealth, and gender.”
• “Prevailing firearm laws in various states allowed for the disarmament of Catholics and poor whites.”
• “By the time of the Constitution’s framing, statutes in the several states made guns a privilege of ‘First-Class Citizens,’ meaning that only select citizen males could legitimately exercise the right to bear arms.”
• “[A]rms bearing was considered congruent to voting, holding public office, or serving on juries — rights associated with each other and denied even to many citizens.”
• “Militia membership and its attendant firearms rights and obligations were not extended to include poor whites until the first decades of the nineteenth century.”
• “This racialized, gendered, and class-stratified understanding of persons permitted to own guns — and exercise other core political rights — began finding legislative imprimatur in immigration and militia regulations [citing sources from the early Republic]…. Individual state constitutions codified restrictions on ‘Negroes, Mulattoes, and Indians’ serving in state militias or expressly limited firearms to ‘free white men.’”
• “This ‘lone-democracy’ syndrome of the framers also explains the relationship between firearms and voting at the founding. Both were rights of ‘First-Class Citizens’ and could be denied to most Blacks, women, and aliens.” [Footnote: This appears to be an assertion that certain people were restricted from owning guns, as the “discussing gun-ownership restrictions in early republic” quotation shows; it does not seem to be just an assertion that they lacked a constitutional right to own guns and were thus vulnerable to such legislative restrictions. Indeed, the analogous behavior to which the passage points -- voting by blacks, women, and aliens -- was actually prohibited in many or nearly all jurisdictions [citations omitted].] Elsewhere, the article refers to this passage using the parenthetical “discussing gun-ownership restrictions in early republic.”

These statements are claims about restrictions on civilian gun possession — about who was “permitted to own guns,” who was “prohibit[ed]” from owning guns, who was subject to “firearms restrictions” and “gun regulation,” whose “disarmament” was “allowed” by various “laws,” and so on — and not merely about who could be excluded from militia duty.

Yet unfortunately, none of the sources that the article cites actually shows that early American laws barred poor whites, women, and noncitizens from owning guns. Perhaps there are such early sources. But the article does not cite them, nor do the sources that the article cites on these matters sufficiently support the article’s assertions…. The article [does cite one contemporary source], which says that “the meaning of the right to bear arms, unlike virtually any other right described in either state constitutions or the federal Constitution, was colored by the inchoate notions of class and rank that shaped American politics in this period.” But, however the “meaning” of the right may have been “colored,” that passage points to no statutes that actually limited gun ownership by women, poor whites, or aliens….

The article does include a footnote that says, “I am not arguing that women were prevented from owning arms; rather, prevailing statutes and legal opinions gendered arms bearing in important ways.” So the careful reader might grasp that the article’s claims about women — but not the article’s claims about poor whites and noncitizens — are not what they first appear.

But I am afraid that some readers might understandably miss that footnote. And if they see it, they might understandably be confused, because it is difficult to reconcile that footnote with the article’s statements that:

• “[S]ince only ‘First-Class citizens’ were allowed to … bear arms …, … women … were denied many fundamental rights presently associated with citizenship.”
• “[G]un regulation [depended] on a conception of membership in the national community con¬tin¬gent upon … gender.”
• “[O]nly select citizen males could legitimately exercise the right to bear arms.”
• “[A]rms bearing was considered congruent to voting.”
• “[F]irearms … could be denied to most … women.”

These statements do seem to assert that “women were [legally] prevented from owning arms.”
It is of course possible that custom or informal social understandings might have imposed de facto restrictions on gun ownership, even if the law did not. But none of the sources that the article cites offer evidence of that possibility, either.

When the article was available in draft on the Social Science Research Network (SSRN), I e-mailed the author asking whether he had found some sources showing that women, poor whites, and noncitizens had indeed been disarmed by law. I asked again after the Law Review published the article. But while the author kindly and promptly replied to my e-mails, neither response pointed to any sources that actually showed that women, poor whites, or noncitizens were legally constrained from owning guns.

It thus seems to me that the article may leave the reader with a mistaken understanding of the matter. I thought this was worth communicating to readers….

I quote below the body of the argument in the brief, minus the footnotes; but if you’re interested in the issue, you might just want to read the PDF. The brief is built on the arguments I made in my Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199 (2009), but it also has a much more extended discussion of why the Second Amendment should be read as extending beyond firearms, and in particular to stun guns. Many thanks to Michael Smith — an experienced Michigan appellate lawyer — for all his help with this project!

I. Many People Have Good Reason to Choose Stun Guns or Tasers as Self-Defense Tools.

Michigan rightly allows people to possess and carry guns. See MCL 28.422. But different people have different self-defense needs, and they should be able to choose other means of defending themselves, as well—especially when those means are much less deadly than guns, as is the case for stun guns (electric weapons that require the user to touch the target with the weapon) and Tasers (electric weapons that shoot a probe that delivers the electric shock). See Appellant’s Brief App. VIII (parties’ stipulation that such weapons are “generally nonlethal”).

Some people, for instance, have religious or ethical compunctions about killing. For instance, noted Mennonite theologian John Howard Yoder, noted Pentecostalist theologian David K. Bernard, and the Dalai Lama have expressed the view that while one ought not use deadly force even in self-defense, self-defense using nondeadly force is permissible. Some members of other religious groups, such as Quakers, share this view. Other religious and philosophical traditions, such as the Jewish and Catholic ones, take the view that defenders ought to use the least violence necessary. Some religious believers might therefore conclude that, when fairly effective nondeadly defensive tools are available, they should be used in preference to deadly tools.

Other people might feel they will be emotionally unable to pull the trigger on a deadly weapon, even when doing so would be ethically proper. Thus, for instance, Liqun Cao et al, Willingness to Shoot: Public Attitudes Toward Defensive Gun Use, 27 Am J Crim Just 85, 96 (2002), reports that 35 percent of a representative sample of Cincinnati residents age 21 and above said they would not be willing to shoot a gun at an armed and threatening burglar who had broken into their home. (The fraction was higher for women respondents. Id at 100.) It seems likely that many of the 35 percent feel they would be psychologically unprepared to shoot an attacker, even if they were ethically permitted to do so.

Others might worry about erroneously killing someone who turns out not to be an attacker. Still others might be reluctant to kill a particular potential attacker, for instance when a woman does not want to kill her abusive ex-husband because she does not want to have to explain to her children that she killed their father, even in self-defense. Others might fear a gun they own might be misused, for instance by their children or by a suicidal adult housemate. Still others, such as people with past criminal convictions, may be barred from owning firearms. See People v Swint, 225 Mich App 353, 362; 572 NW2d 666 (1997) (upholding MCL 750.224f’s ban on gun possession by felons be¬cause it “[a]rguably” “does not completely foreclose defendant’s consti¬tution¬al right to bear ‘arms,’ i.e., nonfirearm weapons, in defense of himself”). And even people who own guns may still want to have both a gun and a stun gun or Taser accessible, so that they can opt for a nonlethal response whenever possible, and for a lethal one when absolutely necessary. (This, of course, is part of the reason that police officers carry both kinds of weapons.)

These are not just aesthetic preferences, such as a person’s desire to have a particular gun that she most likes when other equally effective guns are available. These are preferences that stem from understandable and even laudable moral belief systems, emotional reactions, or pragmatic concerns. Members of Arming Women Against Rape & Endangerment generally believe that killing in self-defense is morally proper. But people who take the opposite view should be presumptively free to act on their beliefs without having to forgo effective self-defense tools; and people who have practical reasons to prefer nonlethal self-defense weapons should likewise be presumptively free to have the weapons that they need to effectively defend themselves.

The “Right to Keep and Bear Arms” Extends Beyond Just Firearms.

The Second Amendment and the Michigan Constitution speak of the “right to keep and bear arms,” not of a right to keep and bear guns or firearms. US Const, Am II; Const 1963, art 1, § 6. And the United States Supreme Court, the Michigan Supreme Court, this Court, and courts of other states have treated the right as extending beyond firearms.

The United States Supreme Court Has Treated the “Right to Keep and Bear Arms” as Extending Beyond Just Firearms.

The Supreme Court concluded in District of Columbia v Heller, 554 US 570 (2008), that “arms” refers to “weapons of offence, or armour of defence,” or “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another,” id at 647 (quotation marks and citations omitted)—terms that cover more than just guns. And the Court, in the section discussing the phrase “keep and bear arms,” id at 581–92, four times expressly discussed non-firearms as “arms.”

First, in showing that “keep and bear arms” included civilian possession of arms for self-defense, the Court noted that, “Timothy Cunningham’s important 1771 legal dictionary” “gave as an example of usage: ‘Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms,’” id at 581 (citation omitted). Including the Cunningham quotation would have been pointless—indeed, counter¬productive to the Court’s argument—if the Court saw “arms” as limited to firearms.

Later in that section, the Court said that various “legal sources frequently used ‘bear arms’ in nonmilitary contexts,” id at 587, and cited several examples. One such citation was a repeat of the Cunningham quote. See id at 587–88 (“Cunningham’s legal dictionary, cited above, gave as an example of its usage a sentence unrelated to military affairs (‘Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms’)”). The other quoted the great international law scholar Vattel. See id at 587 n10 (“E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) (‘Since custom has allowed persons of rank and gentlemen of the army to bear arms in time of peace, strict care should be taken that none but these should be allowed to wear swords’)”). Both examples treated “arms” as including non-firearms; again, both would have been pointless and counterproductive if the Court believed “arms” meant only guns.

Three pages later, the majority mentioned knives as an example of “arms.” The dissent had pointed to a proposed version of the Second Amendment that included a conscientious-objector provision—a provision that was deleted as the Bill of Rights made its way through Congress—in support of its view that “bear arms” must have been limited to military contexts. The majority disagreed:

[The deleted provision] was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever—so much so that Quaker frontiersmen were forbidden to use arms to defend their families, even though “[i]n such circumstances the temptation to seize a hunting rifle or knife in self-defense … must sometimes have been almost overwhelming.”

554 US at 590 (emphasis added) (citation omitted). The Court thus included knives alongside rifles as examples of “arms” for Second Amendment purposes.

To be sure, Heller speaks mostly about guns. But the law challenged in Heller was a gun ban, so it makes sense that guns would be the Court’s primary focus. The quotes given above, though, show that the Court’s references to firearms were not intended to limit the Second Amendment to a right to bear only firearms.

The Michigan Supreme Court Has Treated the “Right to Keep and Bear Arms” as Extending Beyond Firearms.

The Michigan Supreme Court in interpreting the Michigan Constitution appears to likewise view the phrase “right to keep and bear arms” as covering weapons other than guns. In People v Brown, 253 Mich 537; 235 NW 245 (1931), the Court noted that the right to keep and bear arms is subject to regulations, but stressed that such regulations “cannot constitutionally result in the prohibition of the possession of those arms which, by the common opinion and usage of law-abiding people, are proper and legitimate to be kept upon private premises for the protection of person and property.” 253 Mich at 541. And in noting the narrowness of the statute in question, the Court stressed that the law “does not include ordinary guns, swords, revolvers, or other weapons usually relied upon by good citizens for defense or pleasure.” Id at 542 (emphasis added).

Brown thus makes clear that, for 70 years, Michigan law has viewed “the right to keep and bear arms” as extending beyond firearms, treating swords and revolvers analogously as potentially the sort of “arms” that “are proper and legitimate to be kept . . . for the protection of person and property,” and that are therefore constitutionally protected.

This Court Has Treated the “Right to Keep and Bear Arms” as Extending Beyond Just Firearms.

Likewise, this Court has treated the “right to keep and bear arms” in the Michigan Constitution as covering weapons other than guns. In Swint, this Court upheld Michigan’s ban on gun possession by felons, relying expressly on the view that the “right to keep and bear arms” covered more than just guns (and thus left felons with other weapons for self-defense):

We also note that while [Const 1963,] art 1, § 6 ensures a Michigan citizen’s right to keep and bear “arms,” that term is not defined. Black’s Law Dictionary (6th ed.), p 109, defines “arms” as “anything that a man wears for his defense, or takes in his hands as a weapon.” While MCL § 750.224f; MSA § 28.421(6) only precludes a former felon’s use, possession, receipt, sale or transportation of a “firearm,” it is silent regarding other “weapons.” Arguably, MCL § 750.224f; MSA § 28.421(6) does not completely foreclose defendant’s constitution¬al right to bear “arms,” i.e., nonfirearm weapons, in defense of himself. [225 Mich App at 362].

As the Court went on to note,

“[A]s long as our citizens have available to them some types of weapons that are adequate reasonably to vindicate the right to bear arms in self-defense, the state may proscribe the possession of other weapons without infringing on” the constitutional right to bear arms. [Id at 362 (emphasis in original) (citation omitted)].

Swint thus made clear that “arms” includes “nonfirearm weapons,” and expressly relied on that in concluding that the ban on felon gun possession was constitutional because it left felons free to possess “some types of weapons”—other than guns—“that are adequate reasonably to vindicate the right to bear arms in self-defense.” Id.

Note that Heller does not undermine the soundness of Swint with regard to felons’ continuing rights to possess some non-firearms weapons. The Supreme Court in Heller held only that “nothing in [the] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Heller, 554 US at 626 (emphasis added).

Other Courts Have Treated the “Right to Keep and Bear Arms” as Extending Beyond Just Firearms.

More recently, state courts in Delaware, Ohio, and Oregon have likewise concluded that the right to keep and bear arms extends beyond just firearms. See State v Griffin, 2011 WL 2083893, *7 n62; 2011 Del Super LEXIS 193, *26 n62 (Del Super Ct, May 16, 2011) (holding that the “right to keep and bear arms” under the Delaware Constitution extends to knives, and concluding that the Second Amendment right does the same); City of Akron v Rasdan, 105 Ohio App 3d 164, 171-172; 663 NE2d 947 (Ct App, 1995) (treating a restriction on knife possession as implicating the “right to keep and bear arms” under the Ohio Constitution, though concluding that the restriction is constitutional because “[t]he city of Akron properly considered this fundamental right by including in [the knife restriction] an exception from criminal liability when a person is ‘engaged in a lawful business, calling, employment, or occupation’ and the circumstances justify ‘a prudent man in possessing such a weapon for the defense of his person or family’”); State v Delgado, 298 Or 395, 397-404; 692 P2d 610 (1984) (holding that the “right to keep and bear arms” under the Oregon Constitution extends to knives); State v Blocker, 291 Or 255, 257-258; 630 P2d 824 (1981) (same as to billy clubs), citing State v Kessler, 289 Or 359; 614 P2d 94 (1980); also Barnett v State, 72 Or App 585, 586; 695 P2d 991 (Ct App, 1985) (same as to blackjacks).

Likewise, Florida’s Attorney General has expressly concluded that the right to keep and bear arms covers stun guns and Tasers, determining that “the term [‘arms’] is generally defined as ‘anything that a man wears for his defense, or takes in his hands as a weapon.’” 1986 Fla Op Att’y Gen 2, 1986 Fla AG LEXIS 107 (January 6, 1986). And the Attorney General relied on this to conclude that county-level regulation of stun guns and Tasers is unconstitutional, because the Florida Constitution’s right to bear arms reserves regulation of arms—including stun guns and Tasers—to the legislature.

We do not know of any recent cases that have disagreed with this consensus, and that have read “arms” as limited to guns. Indeed, the only two cases cited by the State as supposedly limiting “arms” to guns, Wooden v United States, 6 A3d 833 (DC, 2010), and Mack v United States, 6 A3d 1224 (DC, 2010), held only that the question was unresolved in the D.C. courts. This is all the D.C. Court of Appeals needed to decide in those cases, because the defendants in both cases failed to properly object at trial, and their convictions were thus reviewed only for “plain” or “obvious” error. Wooden, 6 A3d at 839; Mack, 6 A3d at 1236–37.

Thus, Wooden noted that Heller focused only on firearms—understandable, since the law at issue in Heller was a gun ban—and went on to acknowledge that “[p]erhaps a detailed Heller-type analysis would result in a conclusion that some kinds of knives today” “may qualify for Second Amendment protection.” 6 A3d at 839. Likewise, Mack said only that “it is not at all clear that the Second Amendment right to keep and bear arms applies to the ice pick carried by Mr. Mack.” 6 A3d at 1235. The court was, in the words of Mack, “disinclined” in both cases “to delve further into these questions when our review is limited by the plain error standard.” 6 A3d at 1236-37.

The Second Amendment “Right to Keep and Bear Arms” Covers Stun Guns and Tasers.

The Supreme Court in Heller did stress that the Second Amendment does not cover all arms:

We also recognize another important limitation on the right to keep and carry arms. [United States v Miller, 307 US 174; 59 S Ct 816; 83 L Ed 1206 (1939)] said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804). [Heller, 554 US at 627 (some citations omitted)].

Thus, “dangerous and unusual” weapons are seen as historically excluded from the scope of the right to keep and bear arms.

But this suggests that the exception is indeed limited to weapons that are not only “unusual” but also “dangerous.” And since all weapons are “dangerous” to some extent, the reference to “dangerous . . . weapons” must mean weapons that are more dangerous than some threshold, or more dangerous than the norm—likely weapons that are unusually dangerous.

Whatever else might fall under that description, stun guns and Tasers are not unusually dangerous weapons. They are much less dangerous than guns, which are constitutionally protected and broadly allowed in Michigan. They are less dangerous even than knives, clubs, and other such devices—including, in some circumstances, bare hands. Caldwell v Moore, 968 F2d 595, 602 (CA 6, 1992) (“It is not unreasonable for the jail officials to conclude that the use of a stun gun is less dangerous for all involved than a hand to hand confrontation”).

To be sure, all attacks are potentially deadly: pushing or punching someone may cause him to fall the wrong way and die. But stun guns and irritant sprays are so rarely deadly that they merit being viewed as tantamount to generally non-deadly force, such as a punch or a shove. The best estimates seem to be that deliberate uses of Tasers are deadly in less than 0.01% of all cases, as compared to an estimated 20% death rate from gunshot wounds in deliberate assaults, and an estimated 2% death rate from knife wounds in deliberate assaults). Eugene Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life, 62 Stan L Rev 199, 205 (2009). This is why we label stun guns as “nonlethal” or “nondeadly” weapons, consistently with the parties’ stipulation in this case that stun guns are “generally nonlethal,” Appellant’s Brief App. VIII.

Likewise, though stun guns and Tasers can be used in crimes as well as in lawful self-defense, that is true of all weapons. If private ownership of arms posed no risks, there would be no movements to ban arms, and no need to secure constitutional protection of arms. The premise of the constitutional right to keep and bear arms in self-defense is that self-defense is a basic right, and that people must be able to possess the tools needed for effective self-defense despite the risk that some people will abuse those tools. And if that is true for deadly weapons such as handguns, it is especially true for almost entirely nonlethal weapons, such as stun guns and Tasers.

Of course, stun guns and Tasers were unknown when the Second Amendment was enacted, but Heller expressly rejected the view “that only those arms in existence in the 18th century are protected by the Second Amendment.” 554 US at 582 (2008). Instead, Heller held, “[j]ust as the First Amendment protects modern forms of communications [such as the Internet], and the Fourth Amendment applies to modern forms of search [such as heat detection devices], the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Id (citations omitted).

People v Smelter, 175 Mich App 153, 155; 437 NW2d 341 (1989), did conclude that stun guns were not protected by the Michigan Constitution’s Second Amendment analog, Const 1963, art 1, § 6, because the state may “prohibit weapons whose customary employment by individuals is to violate the law.” But Smelter does not control here, since it predates both 1990 (and thus is not binding under MCR 7.215(J)(1)) and Heller. Further, Smelter offered no evidence in support of its bald assertion that stun guns were customarily used to violate the law in the late 1980s; and the briefs offered no such evidence, either. Answer in Opposition to Application, People v Smelter, No. 100234 (Mich Apr 17, 1989), http://www.law.ucla.edu/‌volokh/smelter/sct2.pdf; Application for Leave to Appeal, People v Smelter, No. 100234 (Mich Mar 14, 1989), http://www.law.ucla.edu/volokh/smelter/sct1.pdf; Brief of Appellee, People v Smelter, No. 86-678412 (Mich Ct App Feb. 24, 1988), http://www.law.ucla.edu/volokh/smelter/ctapp2.pdf; Brief of Appellant, People v Smelter, No. 86-678412 (Mich Ct App Nov. 10, 1987), http://www.law.ucla.edu/volokh/smelter/ctapp1.pdf. Indeed, Taser Corp. reports that it sold 241,000 Tasers to civilians as of September 30, and there is also an unknown number of non-Taser stun guns that have been lawfully sold to civilians in the 43 states that do not ban Tasers and stun guns. See Eugene Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life, 62 Stan L Rev 199, 244 (2009) (collecting statutes). Naturally, there is no census of how many of the buyers are criminals; but there is no evidence at all that such criminal buyers form a majority or even a large minority of all buyers.

The State cites 25 published cases nationwide, over a nearly 20-year period (1993-2011), in which stun guns or Tasers were possessed or used by criminals, Appellant’s Brief at 22–26. It argues that “[t]hese cases clearly demonstrate that Tasers and stun guns are not ‘typically possessed . . . for lawful purposes’ as required by Heller,” Id at 26. But those cases demonstrate no such thing. Even if they represent only 1 percent of all the criminal uses of stun guns and Tasers, so that there were 2,500 hypothetical criminal uses nationwide over those three decades—or nearly 140 hypothetical cases per year—those cases would tell us nothing about the typical behavior of the over 200,000 civilian owners of stun guns, the overwhelming majority of whom no doubt are law-abiding women and men who, like AWARE’s members, carry them solely for self-protection.

Indeed, in just the past 36 months, this Court has seen more than a dozen cases in which a baseball bat was used to inflict serious injury or death, and others in which a bat was used in furtherance of crimes such as felonious assault, vehicle theft, and witness intimidation. Yet we would not infer from these cases that the “customary employment” of a baseball bat is crime, as opposed to the Tuesday night softball league. Likewise, the State’s cases do not show that the “customary employment” of stun guns is crime, as opposed to lawful possession for lawful self-defense.

Finally, as noted above, this Court in Swint held that felons may be barred from owning firearms because they remain free to own “nonfirearm weapons.” 225 Mich App at 362-363. And it expressly relied on that in concluding that the ban on felon possession of guns was constitutional because it left felons free to possess “some types of [nonfirearm] weapons that are adequate reasonably to vindicate the right to bear arms in self-defense.” Id at 362. Any such nonfirearm weapons—such as knives or clubs—necessarily involve some risk of abuse and injury, and indeed considerably greater risk of death than stun guns do. See, nn 5 & 6. It would make little sense for the right to bear arms to be read as allowing felons to possess quite lethal nonfirearm weapons, while at the same time denying everyone (felon or not) the right to possess much less lethal stun guns.

]]> http://volokh.com/2011/12/02/amicus-brief-in-the-michigan-second-amendment-stun-gun-case/feed/ 37 http://volokh.com/2011/11/28/nordyke-v-king-the-ninth-circuits-second-amendment-gun-show-case-going-en-banc-again/ http://volokh.com/2011/11/28/nordyke-v-king-the-ninth-circuits-second-amendment-gun-show-case-going-en-banc-again/#comments Tue, 29 Nov 2011 01:26:44 +0000 Eugene Volokh http://volokh.com/?p=53064 That’s the news today from the Ninth Circuit. For more decisions in this case, see here; for more on the panel decision that is now going to be reconsidered en banc (and my views on the decision), see this post. Thanks to Gene Hoffman for the pointer.

]]> http://volokh.com/2011/11/28/nordyke-v-king-the-ninth-circuits-second-amendment-gun-show-case-going-en-banc-again/feed/ 34 http://volokh.com/2011/11/16/house-passes-interstate-handgun-carry-reciprocity/ http://volokh.com/2011/11/16/house-passes-interstate-handgun-carry-reciprocity/#comments Wed, 16 Nov 2011 23:24:29 +0000 David Kopel http://volokh.com/?p=52736 By a vote of 272 to 154. (The vote on the motion to recommit was 161 to 263). On the final vote, 44 Democrats voted in favor, and 7 Republicans voted against. H.R. 822 now goes to the Senate. In the previous Congress, a broader bill on interstate carry was narrowly defeated by a filibuster led by Sen. Charles Schumer. Of course whether the bill ever comes up for a vote in the Senate is up to Majority Leader Harry Reid.

In September, I testified before the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security, in support of the bill. My testimony focused mainly on the Congress’s constitutional authority to pass the bill under the powers granted by section 5 of the 14th Amendment. Among the explicit purposes of the 14th Amendment was to give Congress the power to enact legislation protecting the right to interstate travel, which is one of the Privileges or Immunities of citizens of the United States. My written testimony is here. A video of the subcommittee hearing is here. And here’s short podcast on the subject, with Cato.

HT to Shall Not Be Questioned for coverage of the day’s voting, in which all hostile amendments were defeated.

]]> http://volokh.com/2011/11/16/house-passes-interstate-handgun-carry-reciprocity/feed/ 166 http://volokh.com/2011/11/16/felons-and-the-right-to-bear-arms/ http://volokh.com/2011/11/16/felons-and-the-right-to-bear-arms/#comments Wed, 16 Nov 2011 18:44:00 +0000 Eugene Volokh http://volokh.com/?p=52713 Yesterday’s Baysden v. State (N.C. Ct. App. Nov. 15, 2011) (2-1) holds that North Carolina’s ban on possession of guns by a felon violates the North Carolina Constitution’s right to bear arms provision as to someone with two over-30-year-old nonviolent felony convictions. This follows Britt v. State (N.C. 2009), which held the same on similar facts; a North Carolina trial court decision from last month, Johnston v. State, held the same under the Second Amendment, and People v. Dewitt (Colo. Ct. App. 2011) seemed to secure an even broader right — sometimes applicable even to criminals whose convictions are more recent — under the Colorado Constitution.

Many other recent decisions have upheld bans on felon gun possession, either categorically (citing language to this effect in Heller) or as applied to people whose convictions were relatively recent (noting that Heller only said that bans on felon gun possession were “presumptively lawful,” and that this presumption might be rebuttable in a proper case). But the North Carolina cases, coupled with the Colorado case, suggest that as-applied challenges brought by people with very old felony convictions might indeed succeed, at least in some courts, and especially if they are brought under state constitutional provisions as well as the Second Amendment. And if a court concludes that the state constitution mandates the restoration of a felon’s gun rights under state law, that should also lift the federal ban on gun possession by that felon, see 18 U.S.C. § 921(20).

For a recent New York Times article arguing that some states might be making it too easy for felons to regain gun rights, see here; but my quick skim of the piece suggests that the objections are mostly to restoration of gun rights for people whose felonies are relatively recent, rather than about 30 years old or more, as in the North Carolina cases.

UPDATE: I just saw State v. Yuckel (N.C. Ct. App. Nov. 15, 2001), decided on the same day as Baysden, in which the same three-judge panel applies the same principles to reach a different result on different facts (some paragraph breaks added):

Defendant was convicted of the non-violent offense of felony larceny in 1998. Although Defendant’s prior felony larceny conviction stemmed from an event that occurred approximately ten years before the incident that resulted in his conviction in the present case, the record also indicates that, since being convicted of felonious larceny, Defendant was convicted of driving while subject to an impairing substance in 2001. As a result, unlike Mr. Britt and like Mr. Whitaker, Defendant has not been able to remain free of further entanglements with the criminal law for an extended period of time.

In addition, the present record, unlike that before the Supreme Court in Britt, indicates that Defendant has not possessed firearms in a responsible and lawful manner. Although Defendant argues that he has an overall history of responsible and law-abiding behavior, including attending to the needs of his disabled wife, the facts disclosed in the present record demonstrate that he acted in a completely irresponsible manner on the occasion that led to the conviction at issue in this case. More specifically, Defendant spent the evening consuming alcohol before wrestling with his wife and a houseguest over a handgun in a house in which a child was present. After the handgun discharged during the struggle, Defendant, with an alcoholic beverage in hand, took the handgun to a neighbor and asked him to hide the weapon.

Although Defendant ultimately admitted having possessed the handgun when investigating officers confronted him with the weapon, he initially denied that a handgun had been discharged in his home. As a result of the fact that this handgun was kept under a pillow on his bed, it was readily accessible to others. Thus, rather than having had a history of lawful and responsible firearms possession, the record shows that Defendant engaged in reckless and irresponsible behavior relating to the firearm he unlawfully possessed on the date of the incident that led to his conviction for violating N.C. Gen.Stat. § 14-415.1.

Finally, Defendant failed to “assiduously and proactively” comply with the 2004 amendments to the Felony Firearms Act, which preclude convicted felons from possessing firearms at any location and under any set of circumstances. Unlike Mr. Britt, who consulted with his local sheriff after the enactment of the 2004 legislation and divested himself of all firearms in order to remain in compliance with the relevant statutory provisions, Britt, 363 N.C. at 548, 681 S.E.2d at 322, Defendant continued to possess a handgun after it became unlawful for him to do so and raised his constitutional challenge to N.C. Gen.Stat. § 14-415.1 only after having been charged with criminally possessing a firearm. Thus, Defendant’s reaction to the enactment of the 2004 amendments to the Felony Firearms Act has been very different from Mr. Britt’s “assiduous and proactive” compliance with N.C. Gen.Stat. § 14-415.1.

Thus, after conducting the required constitutional analysis, we conclude that N.C. Gen.Stat. § 14-415.1, as applied to Defendant, “is a reasonable regulation which is ‘fairly related to the preservation of public peace and safety.’” Whitaker, 201 N.C.App. at 206, 689 S.E.2d at 405 (quoting Britt, 363 N.C. at 550, 681 S.E.2d at 323). Simply put, we find nothing impermissible about prohibiting a convicted felon who has exhibited such reckless and irresponsible behavior from possessing firearms regardless of the extent to which he may have cared for his disabled wife or engaged in other commendable activities in recent years. As a result, we conclude that Defendant’s “as-applied” constitutional challenge to N.C. Gen.Stat. § 14-415.1 lacks merit.

]]> http://volokh.com/2011/11/16/felons-and-the-right-to-bear-arms/feed/ 55 http://volokh.com/2011/10/27/second-amendment-protects-felon-whose-convictions-were-30-years-ago/ http://volokh.com/2011/10/27/second-amendment-protects-felon-whose-convictions-were-30-years-ago/#comments Thu, 27 Oct 2011 23:43:50 +0000 Eugene Volokh http://volokh.com/?p=52185 So held a North Carolina trial court in Johnston v. State (Oct. 24, 2011). Richard Johnston had been convicted of “felonious receipt of stolen property and conspiracy to commit grand larceny” in 1978, and pled no contest “to fraudulent setting fire, conspiracy, false statement to procure, and conspiracy to receive, receiving, conspiracy to commit larceny and accessory before the fact” in 1981. (The underlying crimes occurred in 1976, and “did not involve either violence or the use of a firearm.”) Since then, Johnston has apparently led a law-abiding life, setting aside “routine traffic citations and two hunting citations, one of which was dismissed”; he is now 69 years old.

The trial court concluded that, when Heller said that bans on felon possession of guns were “presumptively valid,” this presumption could be rebutted, and in this case it was rebutted, given the age of Johnston’s conviction and his apparently blameless life since then. The court also suggested that its analysis might also apply to people whose last convictions were as recent as seven years ago, especially when the convictions were for nonviolent crimes; but it didn’t have occasion to issue any specific holding on that point.

The court also concluded that North Carolina’s firearms rights restoration law — which allows firearms rights to be restored only when a person has only one felony conviction, that felony is a nonviolent felony, and the conviction is at least 20 years old — violates the Due Process Clause, because it “provides no procedural mechanism by which a person subject to it may be heard on the issue of … her likelihood to commit future crimes of violence using a firearm before being deprived of her fundamental liberty interest” (p. 23). (I’m not sure that this is a sound argument: If a permanent ban on gun ownership by all felons who have more than one felony conviction is unconstitutional on Second Amendment grounds, the due process analysis is beside the point, but if it is unconstitutional as to certain felons, the objection is to the substantive prohibition and not to the procedure.)

Finally, though the court favorably cites Britt v. State, a 2009 North Carolina Supreme Court case that held that a felon whose crimes were similarly far in the past regained his constitutional right to bear arms, the Johnston decision rests on the Second Amendment, and Britt relied only on the North Carolina Constitution’s right to bear arms provision. This makes Johnston potentially more influential in other jurisdictions, assuming it is appealed and affirmed on appeal.

The opinion is also quite long and pretty detailed in setting forth its arguments; if you’re interested in the subject, read the whole thing.

]]> http://volokh.com/2011/10/27/second-amendment-protects-felon-whose-convictions-were-30-years-ago/feed/ 107 http://volokh.com/2011/10/27/second-amendment-equal-protection-clause-victory-for-legal-alien-gun-owners/ http://volokh.com/2011/10/27/second-amendment-equal-protection-clause-victory-for-legal-alien-gun-owners/#comments Thu, 27 Oct 2011 21:55:37 +0000 Eugene Volokh http://volokh.com/?p=52172 A pre-2009 Washington state law, under which Yasin Ibrahim was convicted, required aliens to get a license . (A new statute sets up a different licensing scheme for alien gun owners, but that statute wasn’t involved in this case.) Ibrahim was prosecuted under the old law, for having an unlicensed gun. Today’s State v. Ibrahim (Wash. Ct. App.) holds that the old law violated the Equal Protection Clause by unconstitutionally discriminating against noncitizens. And in the process the court says that the law did this “by denying [legal aliens'] Second Amendment right to keep and bear arms.”

This independent focus on the Second Amendment is important because the Supreme Court has read the Equal Protection Clause as barring most (but not all) state discrimination against noncitizens; the federal government remains generally free to discriminate against noncitizens. But if the Washington Court of Appeals is right that legal aliens are protected by the Second Amendment, that means that even the federal government may not ban them from owning guns.

Current federal law lets immigrant aliens possess guns, but bars gun possession by legal aliens who don’t have immigrant status. (See 18 U.S.C. § 922(g)(5)(B).) This category of people generally barred from possessing guns (with some exceptions for hunting and sporting purposes) includes not just tourists but also long-term residents, such as students or people working here on nonimmigrant visas. So if federal courts follow the Washington Court of Appeals’ view of the matter, that prohibition might be vulnerable on Second Amendment grounds.

Two notes: (1) As it happens, the state Department of Licensing refused to issue alien gun licenses under the pre-2009 law, but that wasn’t expressly discussed in the opinion. (2) The opinion talked about the pre-2009 law as requiring “registration” of a gun, but as I read it the law actually required a license.

]]> http://volokh.com/2011/10/27/second-amendment-equal-protection-clause-victory-for-legal-alien-gun-owners/feed/ 84 http://volokh.com/2011/10/10/appellate-judges-education-institute-annual-summit-for-appellate-lawyers-as-well-as-for-judges/ http://volokh.com/2011/10/10/appellate-judges-education-institute-annual-summit-for-appellate-lawyers-as-well-as-for-judges/#comments Mon, 10 Oct 2011 23:04:08 +0000 Eugene Volokh http://volokh.com/?p=51552 I’ll be on a The Second Amendment in the Courts After Heller and McDonald panel Nov. 12, 2011 at the Appellate Judges Education Institute Summit in Washington, D.C. The conference (cohosted by the ABA Judicial Division Appellate Judges Conference and SMU School of Law) generally sounds very interesting, and is open to lawyers as well as to judges and staff attorneys. The conference speakers include Justice Sotomayor, Scott Turow, and many illustrious judges, professors, and practitioners (including our own John Elwood). For more, including the full agenda, see here.

]]> http://volokh.com/2011/10/10/appellate-judges-education-institute-annual-summit-for-appellate-lawyers-as-well-as-for-judges/feed/ 1 http://volokh.com/2011/10/08/arizona-sheriffs-call-for-special-prosecutor-in-fast-furious/ http://volokh.com/2011/10/08/arizona-sheriffs-call-for-special-prosecutor-in-fast-furious/#comments Sat, 08 Oct 2011 08:32:21 +0000 David Kopel http://volokh.com/?p=51471 Ten of Arizona’s 15 county sheriffs, including Democrats and Republicans, have called for the appointment of a federal special prosecutor in the Fast & Furious scandal.

]]> http://volokh.com/2011/10/08/arizona-sheriffs-call-for-special-prosecutor-in-fast-furious/feed/ 186 http://volokh.com/2011/10/07/a-quarter-century-of-civil-rights-progress-spread-of-the-right-to-carry/ http://volokh.com/2011/10/07/a-quarter-century-of-civil-rights-progress-spread-of-the-right-to-carry/#comments Fri, 07 Oct 2011 23:39:06 +0000 David Kopel http://volokh.com/?p=51466 An excellent graph at No Lawyers, Only Guns and Money, shows the story. We’ve come a long way, baby.

And there’s still a long way to go. In Illinois, the right to carry is completely forbidden by law. In eight other states, handgun carry licensing laws are highly arbitrary. With a few exceptions (e.g., upstate New York, rural California, 2 of the 3 counties in Delaware), in those state rights are routinely denied, so “may issue” amounts to “will not issue.” It is not acceptable that nearly one-third of the nation is still denied a fundamental civil and natural right.

]]> http://volokh.com/2011/10/07/a-quarter-century-of-civil-rights-progress-spread-of-the-right-to-carry/feed/ 156 http://volokh.com/2011/10/04/heller-loses-round-two/ http://volokh.com/2011/10/04/heller-loses-round-two/#comments Tue, 04 Oct 2011 14:35:06 +0000 Jonathan H. Adler http://volokh.com/?p=51339 Today the U.S Court of Appeals for the D.C. Circuit released a divided opinion in Heller v. D.C. . In this case, Dick Heller (of the Supreme Court’s Heller decision) is challenging the Firearms Registration Amendment Act of 2008 (FRA), a statute adopted by the District of Columbia in response to the Supreme Court’s decision invalidating the District’s prior gun controls. Whereas Heller had prevailed in the D.C. Circuit before, this time he was not so lucky. The panel majority, consisting of Judges Ginsburg and Henderson, largely rejected his challenge to D.C.’s ban on some semi-automatic rifles and new gun-registration requirements. Judge Kavanaugh wrote a lengthy dissent.

]]> http://volokh.com/2011/10/04/heller-loses-round-two/feed/ 41 http://volokh.com/2011/10/04/crime-plummets-in-chicago-and-dc-after-handguns-re-legalized/ http://volokh.com/2011/10/04/crime-plummets-in-chicago-and-dc-after-handguns-re-legalized/#comments Tue, 04 Oct 2011 06:44:31 +0000 David Kopel http://volokh.com/?p=51328 So explains John Lott, in an opinion column for Foxnews.com. Not a surprising result. The McDonald v. Chicago amicus brief I wrote for the International Law Enforcements Educators & Trainers Association (and other law enforcement organizations, and criminologists) showed that after Chicago enacted its handgun ban, its violent crime rate rose sharply. Pre-ban, Chicago had a violent crime rate 1.12 times greater than the violent crime rate of the 24 other largest cities. (That is, Chicago’s violent crime rate was 12% higher than that of the 24 other cities.) Post-ban, Chicago’s crime rate soared immediately, and remained 67% higher than the other large cities. The possibility that Chicago’s sudden and long-standing deterioration compared to other large cities is less than 1 in 100,000. Details are presented at pages 17-22 of the brief, and the appendices.

]]> http://volokh.com/2011/10/04/crime-plummets-in-chicago-and-dc-after-handguns-re-legalized/feed/ 113 http://volokh.com/2011/09/26/right-to-bear-arms-lawsuit-in-illinois-professors-amicus-brief/ http://volokh.com/2011/09/26/right-to-bear-arms-lawsuit-in-illinois-professors-amicus-brief/#comments Tue, 27 Sep 2011 00:08:13 +0000 David Kopel http://volokh.com/?p=51056 Currently before the Illinois Supreme Court is People v. Aguilar, which raises the question of whether Illinois can, consistently with the Second Amendment, prohibit the carrying of firearms for lawful self-defense in public places. Illinois is the only state with such a blanket prohibition. Illinois state law bans open and concealed carry, and has no procedure for licensing either. The only people allowed to exercise the right to defensive carry are persons in some specially-favored categories, such as elected officials and security guards.

Oklahoma City Univ. law professor Michael O’Shea has written an amicus brief in the case, on behalf of co-authors of the forthcoming law school textbook Firearms Law and the Second Amendment (Aspen, 2012). O’shea’s co-authors Nicholas Johnson (Fordham) and I both made some suggestions for the brief, but the vast majority of the work was done by O’Shea. As the brief demonstrates, McDonald and Heller make it clear that the Second Amendment protects a right to carry arms (except in “sensitive places”). The brief does not argue in favor of a particular system for licensed or unlicensed carry. Rather, our point is that a complete prohibition is facially unconstitutional; there is no need to get into the standard of review issues that would be involved in a regulation (as opposed to a complete prohibition) of the exercise of the right to bear arms.

]]> http://volokh.com/2011/09/26/right-to-bear-arms-lawsuit-in-illinois-professors-amicus-brief/feed/ 81 http://volokh.com/2011/09/18/new-law-school-textbook-on-the-second-amendment-and-firearms-regulation/ http://volokh.com/2011/09/18/new-law-school-textbook-on-the-second-amendment-and-firearms-regulation/#comments Sun, 18 Sep 2011 06:39:04 +0000 David Kopel http://volokh.com/?p=50688 Very early next year–in time for 2d semester classes in the 2011-12 academic year–Aspen Publishers will publish the first law school textbook on the the Second Amendment. The title is Firearms Law and the Second Amendment: Regulation, Rights, and Policy. The co-authors are Nicholas Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me.

Below the fold is the full Table of Contents and Preface for the book. (Pasting the Word document into the blog format significantly altered many of the indents, line spacing, and outline numbering for chapter subdivisions, so the TOC below does not look exactly like the TOC of the book itself.) Because the textbook is currently in the production process, review copies are not yet available. Indeed, the Aspen website’s promotional page for the book is still several weeks away. However, if you might use the textbook next semester, and would like to see some chapters, just contact any of the co-authors, and we can mail them to you.

The 11 chapters of the printed textbook proceed chronologically, from ancient Rome, Greece, and China, all the way to the post-Heller cases. Four additional, on-line only chapters cover some special topics. Those electronic chapters will be available to all students and professors using the textbook.

Besides being sold as a conventional hardback, Firearms Law will also be available in individual electronic chapters. So if you are teaching a constitutional law course and would like to include a 2 or 3 week unit on the Second Amendment, your students could buy chapter 9 (Heller and McDonald) plus chapter 11 (post-Heller cases in the lower courts). Or if you’re teaching an advanced criminal law class, you might want to have your students buy chapter 8, which covers the modern criminal law of gun control, particularly under the federal Gun Control Act.

Summary of Contents

 

Contents

Preface

Acknowledgements

Editorial Note

 

PART ONE

THE ORIGINS OF THE RIGHT TO ARMS

 

Chapter 1. A Brief Introduction to Firearms and Their Regulation

Chapter 2. Antecedents of the Second Amendment

Chapter 3. The Colonies and the Revolution

Chapter 4. The New Constitution

Chapter 5. The Right to Arms, Militias, and Slavery in the Early Republic and Antebellum Periods

Chapter 6. Reconstruction and Beyond

 

 

PART TWO

THE RIGHT TO ARMS IN THE MODERN WORLD

 

Chapter 7. A New and Dangerous Century

Chapter 8. Between Miller and Heller: The Second Amendment in the Modern Era

Chapter 9. The Supreme Court Affirms an Individual Right to Arms

Chapter 10.  The Right to Arms after Heller

Chapter 11.  Firearms Policy and Status: Race, Gender, Age, Disability, and Sexual Orientation

 

Table of Cases

Table of Statutes and Constitutions

Table of Authorities

Index

 

PART THREE (ON-LINE)

SPECIAL TOPICS ON ARMS AND SELF-DEFENSE

 

Chapter 12.  Social Science on Guns and Self-Defense

Chapter 13.  International Law

Chapter 14.  Comparative Law

Chapter 15.  Detailed Explanation of Firearms and Ammunition

 

Contents

 

Preface

Acknowledgements

Editorial Note

 

PART ONE

THE ORIGINS OF THE RIGHT TO ARMS

 

Chapter 1

A Brief Introduction to Firearms and Their Regulation

 

A.  The Parts of a Firearm and Ammunition

B.  Firearm Features

1. Firing Mechanism
2. Ammunition Feeding
3. Safety Devices
4. Firearm User Safety

C.  The Major Types of Firearms

1. Handguns
   1. Semi-Automatic Pistols
   2. Revolvers
   3. Legitimate Uses of Handguns
   4. Criminal Uses of Handguns
2. Rifles
   1. Bolt-Action
   2. Semi-Automatic
   3. Lever-Action
   4. Single-Shot
   5. Characteristics of Rifles
   6. Legitimate uses of rifles
   7. Crime with rifles
3. Shotguns
   1. Shotgun Shells
   2. Types of Shotguns
   3. Legitimate Uses of Shotguns
   4. Crime with shotguns

D. Modern Gun Control Laws

1. Purchasing a Gun from a Commercial Dealer
2. Purchasing a Gun from Other Persons
3. Purchases in Various Locations
4. Gun Registration
5. Keeping the Gun at Home
6. Target Shooting
7. Hunting with a Gun
8. Carrying a Gun for Protection
   1.  At Home, or in Your Place of Business
   2. In your automobile
   3. In Public Places
9. Local laws

10. Using a Gun for Self-defense

E.  Gun Control Controversies Today

Appendix: The Right to Arms in State Constitutions

 

 

Chapter 2

Antecedents of the Second Amendment

 

A.  The Early Far East

1. Confucianism

The Analects of Confucius

Mencius

1. Taoism        

Tao Te Ching

Wen Tzu

The Master of the Hidden Storehouse

Huainanzi

B.  Ancient Greece and Rome

1. Greece

1. Greek law
2. Plato vs. Aristotle
   1. Plato
   2. Aristotle

Aristotle’s Constitution of Athens, ch XV

1. Rome

Corpus Juris

C.  Judeo-Christian Thought

1. Jewish Thought
2. Early Christian Thought
   1. The Sermon on the Mount
   2. The Final Instructions to the Apostles
   3. The Arrest of Jesus
   4. Paul’s Letter to the Romans
   5. Other Early Christian Writings
3. Medieval Christian Thought
   1. John of Salisbury’s Policraticus
   2. Thomas Aquinas

D. Second-millennium Europe

1. Italian Influence

Cesare Beccaria, An Essay on Crimes and Punishments, ch. 40

1. England
   1. Magna Charta
   2. English statutes

     Assize of Arms

     Statute of Northampton

     Gun and crossbow control

1. Castle Doctrine Cases
2. Hue and Cry, the Militia, the Glorious Revolution, and the Declaration of Right
3. Blackstone
4. John Locke, Jean de Barbyrac, and John Adams

John Locke, Second Treatise of Government

1. Novangelus

 

 

Chapter 3

The Colonies and the Revolution

 

A.  Firearm Control in the Colonies

1. Early Arms Mandates
   1. Colonial Statutes Mandating Arms Possession

Massachusetts

Maryland

Connecticut

New York    

Virginia

New Jersey

New Hampshire

North Carolina

Delaware

Pennsylvania

1. Colonial Statutes Mandating Arms Carrying

Virginia

Connecticut

Massachusetts

Rhode Island

Maryland

South Carolina

Georgia

1. Statutory requirements for Arming Free Servants and Children
2. Early Firearm Regulation and Prohibition
   1. Safety Regulations
   2. Limits on Gun Sales to Indians
   3. Gun Restrictions on Blacks
   4. Sporadic Disarmament of Dissidents

B.  Firearms, Self-Defense and Militias in Pre-Revolutionary America

1. The Boston Massacre Trial
2. A Colonial View of the English Right to Arms

E.A. [Samuel Adams], Boston Gazette, Feb. 27, 1769

1. C. Religion, Arms, and Resistance

Jonathan Mayhew, A Discourse Concerning Unlimited Submission and Non-Resistance to the Higher Powers: With Some Reflections on the Resistance Made to King Charles I and on the Anniversary of his Death

Simeon Howard, A Sermon Preached to the Ancient and Honorable Artillery Company in Boston

C.  The British Crackdown

1. The Coercive (Intolerable) Acts and the Powder Alarms
2. Disarmament Orders from London
3. The Import Ban
4. Calls for Defiance: Patrick Henry and the South

Patrick Henry, The War Inevitable, Speech at the Second Revolutionary Convention of Virginia

1. Defiance in Practice and the Independent Militias

D. Arms and the American Revolution

1. Gun Confiscation at Lexington & Concord
2. Gun Confiscation in Boston
3. Declaration of Causes of Taking Up Arms

The Declaration by the Representatives of the United Colonies of North America, July 6, 1775

1. Falmouth Destroyed
2. The Declaration of Independence

The Declaration of Independence

1. Thomas Paine on Self-Defense, Resistance, and Militias
2. Gun Confiscation and Smuggling Reprised
3. The Militia, the Continental Army, and American Marksmanship

E.  The Articles of Confederation

F.  The Right to Arms, Standing Armies, and Militias in the Early State Constitutions and Statutes

South Carolina

Virginia

New Jersey

Pennsylvania

Delaware

Maryland

North Carolina

Georgia

New York

Vermont

Massachusetts

New Hampshire

Connecticut

Rhode Island

 

 

Chapter 4

The New Constitution

 

A.  Standing Armies, Militias, and Individual Rights—The Constitutional Convention of 1787

B.  Ratification of the Constitution

Pennsylvania

Massachusetts

Maryland

New Hampshire

Virginia

Virginia Ratification Message

Resolution of Virginia’s Proposed Amendments

New York

North Carolina

Resolution of North Carolina’s Proposed Amendments

Rhode Island

C.  Commentary During the Ratification Period

1. The Federalist Papers

The Federalist No. 29 (Alexander Hamilton)

The Federalist No. 46 (James Madison)

1. Tench Coxe
2. Other Federalists

D. The Second Amendment

1. The Second Amendment’s Path Through Congress
2. Commentary on the Second Amendment

E.  Post-Ratification

1. The Militia Acts

First Militia Act of 1792

Second Militia Act of 1792

1. St. George Tucker
   1. Tucker’s Blackstone
   2. Tucker’s Early Lecture Notes

F.  Federal and State Military Forces of Today

1. The United States Armed Forces
2. The National Guard
3. State Defense Forces
4. The Unorganized Militia

 

 

Chapter 5

The Right to Arms, Militias, and Slavery in the Early Republic and Antebellum Periods

 

A.  Militias as a Military and Political Force in the Post-Revolutionary Period

1. The Crisis of 1798-99
   1. The Federalist Program
2. The Kentucky and Virginia Resolutions
3. Fries’s Rebellion

Robert H. Churchill, Popular Nullification, Fries’s Rebellion, and the Waning of Radical Republicanism, 1798-1801

1. The War of 1812

B.  Antebellum Case Law on the Right to Arms Under State and Federal Constitutions

1. A right to carry weapons openly for self-defense

Nunn v. State

1. The “civilized warfare” test: militia weapons only?

Aymette v. State

1. A collective “right of sovereignty” subject to legislative discretion?
2. The use of antebellum state court decisions to interpret the Second Amendment

C.  Weapons Control and Southern Culture

D. The Right to Arms and Slavery

State v. Newsom

Robert J. Cottrol & Raymond T. Diamond, “Never Intended to Be Applied to the White Population”: Firearms Regulation and Racial Disparity—The Redeemed South’s Legacy to a National Jurisprudence?

E.  Antebellum Legal Commentary on the Right to Arms

1. William Rawle
2. Joseph Story

The Second Amendment in Story’s Familiar Exposition

Houston v. Moore 

 

 

Chapter 6

Reconstruction and Beyond

 

A.  The Initial Southern Response to Black Freedom

1. The Black Codes

Louisiana

Mississippi

Landry Parish, Louisiana

Alabama

1. The Ku Klux Klan and Other Extra-legal Suppression of Freedmen

B.  The Congressional Response: The Fourteenth Amendment, the Freedmen’s Bureau Acts, and the Civil Rights Act

Thirteenth Amendment

Civil Rights Act of 1866

Second Freedmen’s Bureau Act

Fourteenth Amendment

United States v. Cruikshank

C.  Labor Agitation and the Repressive Response

Presser v. Illinois

D. Nineteenth Century Commentary

1. Chief Justice Thomas M. Cooley

Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union

Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America

1. Other Commentary

Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes

Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes (2d ed.)

E.  Late Nineteenth Century State Laws and Cases

Andrews v. State

State v. Wilburn

The Postbellum Experience in Arkansas

State v. Duke

City of Salina v. Blaksley 

F.  State Constitutions at the Turn of the Century

G. The Self-Defense Cases

 

 

PART TWO

THE RIGHT TO ARMS IN THE MODERN WORLD

 

Chapter 7

A New and Dangerous Century

 

A.  Immigration, Labor Unrest, and Alcohol Prohibition

Patsone v. Pennsylvania

People v. Nakamura

B.  The Federal Government Begins To Act

National Firearms Act of 1934

Federal Firearms Act of 1938

Sonzinsky v. United States

United States v. Miller

C.  National Firearms Act Regulation Today

Machine guns

Short barreled rifles

Short barreled shotguns.

Silencers

Destructive devices

“Any other weapons”

The NFA transfer procedure     

D. Miller’s Aftermath: The Shrinking Second Amendment

Cases v. United States

United States v. Tot

E.  Armed Citizens and the Second World War

1. The United States
2. The United Kingdom

 

 

Chapter 8: Between Miller and Heller: The Second Amendment in the Modern Era

 

A.  The Second Amendment in the Lower Federal Courts

United State v. McCutcheon

Stevens v. United States

Cody v. United States

United States v. Brimley

United States v. Warin

United States v. Hale

B.  Six Decades of Cryptic Supreme Court References to the Second Amendment

1. The Right to Arms as a Liberty Interest?

Poe v. Ullman

1. Defining Terms Used in the Second Amendment

United States v. Verdugo-Urquidez

Muscarello v. United States

1. Gun Control and the Limits of Federal Power.

United States v. Lopez

Printz v United States

Exercise: The Firearms Freedom Acts

1. Felons and the Right to Arms

Lewis v. United States

C.  The Social and Political History of the Right to Arms Between Miller and Heller

The calm before the storm

Racial tensions

Comprehensive National Gun Control

The Rise of the Modern Gun Control Movement and the Revolt at the NRA

Handgun prohibition

The NRA Counter-offensive, and the Growing Sophistication of the Gun Control Lobby

George H.W. Bush

The Clinton Era

The Re-emergence of the Second Amendment

Columbine and the 2000 Election

The Great American Gun War Winds Down

D. Federal Regulation of Firearms in the Modern Era

1. The Challenge of Defining Specially Regulated Firearms

United States v. Thompson/Center Arms Company

2. Regulation of Retail Sales of Conventional Firearms

a. Regulation of buyers

National Rifle Association of America Inc. v. Reno

United States v. Moore

b. Regulation of sellers

United States v. Biswell

3. Private Sales, Private Manufacturers: The Secondary Market and Gun Shows

Scope v. Pataki

Chow v. Maryland

4. “Sporting Use” as a Marker of “Legitimate” Firearms

Gilbert v. Higgins

5 . Policing of Illegal Guns

Terry v. Ohio

Staples v. United States

6 . Litigation Against the Gun Industry and the Legislative Response

City of New York v. Beretta U.S.A. Corp

7. Regulation of Firearms Designated “Assault Weapons”

Springfield Armory, Inc. v. City Of Columbus

8. Regulation of Interstate Transportation of Firearms

Revell v. Port Authority of New York & New Jersey

Torraco v. Port Authority of New York & New Jersey

E.  On the Threshold of an Individual Right to Arms: Full Engagement of the Second Amendment by the Fifth and Ninth Circuits

United States v. Emerson

Silveira v. Lockyer

 

 

Chapter 9

The Supreme Court Affirms an Individual Right to Arms

 

A.  The Supreme Court Affirms an Individual Right to Keep and Bear Arms Against Federal Infringement

District of Columbia v. Heller

B.  The Supreme Court Incorporates the Right to Keep and Bear Arms Against the States

McDonald v. City of Chicago

Comment: Modes of Constitutional Interpretation

Textualism

Originalism

Tradition and History

Emerging Awareness

Stare decisis

Values

Liberty

Popular Constitutionalism

Good Policy Results

Judicial Activism and Judicial Restraint

Exercise: Harm in the Speech Context

Exercise: Constitutional Drafting

 

 

Chapter 10

Firearms Policy and Status:

Race, Gender, Age, Disability, and Sexual Orientation

 

A.  Firearms Policy and the Black Community

Brief for NAACP Legal Defense & Educational Fund, Inc. as Amicus Curiae Supporting Petitioner, District of Columbia v. Heller

Brief for Congress of Racial Equality as Amicus Curiae Supporting Respondent, District of Columbia v. Heller

B.  Gender

Brief for National Network to End Domestic Violence, et al. as Amici Curiae Supporting Petitioner, District of Columbia v. Heller

Brief for 126 Women State Legislators and Academics as Amici Curiae Supporting Respondent, District of Columbia v. Heller

C.  Age and Physical Disability

Brief for American Academy of Pediatrics et al. as Amici Curiae in Support of the Petition for Writ of Certiorari, District of Columbia v. Heller,

Brief for Southeastern Legal Foundation, Inc., et al. as Amici Curiae Supporting Respondent, District of Columbia v. Heller

D. Sexual Orientation

Brief for Pink Pistols, et al. as Amici Curiae Supporting Respondent, District of Columbia v. Heller,

Exercise: Subjectivity in Forming Policy Views

Exercise: Empirical Assessments, Personal Risk Assessments, and Public Policy

 

 

Chapter 11

Applying the Affirmed Right to Arms 

 

A.  The Aftermath of Heller in the District of Columbia: Intermediate Scrutiny

Heller v. District of Columbia (Heller II)

B.  The Aftermath if McDonald in the City Of Chicago: Historical Inquiry, Then Nearly Strict Scrutiny Toward The Core

Ezell v. City of Chicago

Exercise: Pressing the Edges of the Abortion Analogy

C.  An Alternative Methodology: Substantial Burden

Nordyke  v. King

D. The Presumptive Legitimacy of Disarming the Untrustworthy: Analogizing From Heller

United States v. Skoien

E.  The Second Amendment and the Gun Control Act of 1968

United States v. Marzzarella

Exercise: Soldiers and Second Amendment Scrutiny

F.  Guns In Common Use and the State Courts

People v. James

G. Child Access Prevention Laws

Commonwealth  v. Runyan

H.      The Right to Bear Arms and Carrying Handguns for Self-Defense

Peruta  v. County of San Diego

Exercise: In-state Concealed Carry

I.   Regulating the “Terror Gap”

Exercise: The Right to Bear Arms vs. Terrorism Concerns

J. Gun Regulation, Local Autonomy, and Urban Violence

Exercise: Adapting the Right to Bear Arms to Local Circumstances

K. Tyranny Control as a Justification for the Modern Right to Bear Arms

Silveira v. Lockyer

Exercise: Litigation Strategies and Ethics on Controversial Topics

 

 

Table of Cases

Table of Statutes and Constitutions

Table of Authorities

Index

 

 

 

PART THREE (ON-LINE)

SPECIAL TOPICS ON ARMS AND SELF-DEFENSE

 

Chapter 12

Social Science on Guns and Self-Defense

 

 

Chapter 13

International Law

 

A.  Modern human rights treaties and other documents

1. United Nations General Assembly Resolution on the Definition of Aggression
2. African Charter on Human and People’s Rights
3. European Convention on Human Rights

B.  International Gun Control Treaties and Documents

1. Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects
2. UN Human Rights Council on the international right of gun control
3. Nairobi Protocol
4. Organization of American States

CIFTA. Convención Interamericana Contra La Fabricación Y El Tráfico Ilícitos De Armas De Fuego, Municiones, Explosivos Y Otros Materiales Relacionados.

C.  The Founders of International Law

1. Francisco de Victoria
2. Francisco Suárez
3. Hugo Grotius
4. Samuel Pufendorf
5. Emmerich de Vattel

D. Genocide

Antonio Cassese, The Various Aspects of Self-Defence

David Kopel, The Genocide Convention and the Right to Arms to Resist Genocide

E. A Global Second Amendment?

 

 

Chapter 14

Comparative Law

 

A.  National Constitutions

1. Constitutional Rights to Arms

Mexico

Haiti

Guatemala

1. Constitutional right of self-defense
2. Constitutional self-defense against tyranny
3. Constitutional security against home invasion

B. Comparative Studies

Franklin E. Zimring & Gordon Hawkins, Crime is Not the Problem: Lethal Violence in America

Martin Killias

David B. Kopel, Carlisle Moody & Howard Nemerov, Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations

C. United Kingdom in Modern Times

D. Japan

E. Nazi Germany

F. Switzerland

 

 

Chapter 15

Detailed Explanation of Firearms and Ammunition

 

A.  A Brief Introduction to the Parts of a Firearm

B.  Ammunition

1. Bullet
2. Case
3. Primer
4. Gun Powder

C.  Firearm Features

1. Firing Mechanism
2. Magazine
3. Safety Devices
4. Firearm User Safety

D. The Major Types of Firearms

1. Handguns
   1. Semi-Automatic Pistols
   2. Revolvers

                          i.          Single Action Revolvers

                        ii.          Double Action Revolvers

1. Legitimate Uses of Handguns
2. Criminal Uses of Handguns
3. Rifles
   1. Bolt-action
   2. Semi-Automatic
   3. Lever-action
   4. Single-shot
   5. Characteristics of Rifles
   6. Legitimate uses of rifles
   7. Crime with rifles
4. Shotguns
   1. Shotgun Shells
   2. Types of Shotguns
   3. Legitimate Uses of Shotguns
   4. Crime with shotguns
5. Specialty Types of Firearms And Accessories
   1. Muzzleloaders
   2. Machine Guns
   3. Silencers or Suppressors
   4. Armor-piercing Ammunition
   5. Air Guns
   6. Paint Guns
   7. Non-gun Arms

 

 

Preface

 

While this book proceeds chronologically, we expect that many users will approach the material out of sequence. Indeed, we have done so in our own classes. For example, it can be very effective to launch right into contemporary gun-law issues by starting with the Supreme Court’s major cases on the Second Amendment, District of Columbia v. Heller, and McDonald v. Chicago in Chapter 9, followed by chapter 11 for post-Heller issues. It is also effective to assign the chapters covering the 17th and 18th century in conjunction with coverage of Heller and McDonald. This approach illuminates the originalist historical analysis in both cases. The most relevant original materials for Heller (from English origins to the first decades of American independence) appear in Chapters 2 through 5. The original materials relevant to the Fourteenth Amendment are in Chapter 6.

The book is sufficiently modular to accommodate instructors who wish to use particular chapters as part of more general courses, e.g., criminal law, constitutional law, or jurisprudence. For example, someone teaching criminal law might use Chapters 7 and 8 (covering the main federal gun control statutes) for a discrete segment on firearms violations. The treatments of Heller and McDonald in Chapter 9, and the material on standards of review in Chapter 11, are a nice vehicle for examining various general modes of constitutional decision-making. The material in Chapter 10 is a good choice for showing how the perspectives of divergent communities can affect assessment of legal and constitutional issues.

Instructors interested in particular policy topics, such as gun shows, import restrictions, handgun carry permits, or “assault weapons,” will find sections covering them. Of course, the index will also highlight discrete treatments of such topics.

The Notes & Questions in the book frequently raise forward-looking issues and core questions that relate to current controversies. Some of the Notes & Questions are designated “Connection Questions” (CQ) to indicate their relevance to cases or topics in other chapters.

While the American debate on gun rights typically uses “the Second Amendment” as a shorthand for those rights, much of the legal history, and many of the contemporary legal battles, involves state constitutions. Today, 44 state constitutions have right-to-arms provisions. The book covers the state right-to-arms issues in depth, both for their intrinsic importance, and because the state cases sometimes provide guidance or background for understanding the Second Amendment. Because state issues appear throughout the book, readers should use the Table of Statutes and the Index to find all the material on any particular state.

 

An Overview of the Book

Chapter 1 explains how firearms function, and describes the major types of firearms. Chapter 1 also outlines the general scope of modern American gun laws, including variations among the states. The Chapter includes an Appendix of state constitutional provisions on the right to arms. The next nine chapters tell, in generally chronological order, the story of the development of gun regulation and gun rights in the United States.

The Second Amendment right to arms is widely viewed as a historical successor to the English right to arms, which was codified in the Declaration of Rights of 1689. Chapter 2 examines the historical and political background of the English right and English gun laws. It also explores the religious and philosophical background of the ideas of armed self-defense and a citizen militia. The chapter begins early Chinese philosophy, then covers ancient Greece and Rome, Judeo-Christian perspectives, medieval thought, and the Renaissance.

Chapter 3 examines the American colonial experience and the American Revolution. Colonial militias were important military and political institutions, and the militia regulations provide insight into the early understanding of the public and private roles of arms possession. The chapter also covers the British efforts to confiscate American firearms and gunpowder that played a major role in precipitating the American Revolution. Finally, the chapter covers the War of Independence and form of U.S. government before 1789.

Chapter 4 discusses the framing of the U.S. Constitution and its Bill of Rights. Ratification of the U.S. Constitution in 1789 created a more active and powerful federal government; among those new powers were direct federal control over the militia. The Bill of Rights was added to the Constitution in 1791, including a Second Amendment that affirmed the necessity of a well regulated militia, and recognized the right of the people to keep and bear arms. Chapter 4 examines the debates over the Constitution’s ratification, the drafting history of the Second Amendment, and the way the American right to arms was viewed by the earliest constitutional commentators.

Chapter 5 covers the first seven decades of the new republic. This period saw an evolution of the American understanding of both the role of militias and of the individual right to arms. The chapter starts with the political crisis of 1798-1800 that brought several states to the brink of armed resistance to the Federalist political agenda. The War of 1812 displayed both strengths and weaknesses of American militias. Chapter 5 also chronicles a significant transition in the direction of gun regulation in America. While colonial and revolutionary era gun control laws were mainly concerned with forcing people to own and carry guns, by the 1820s laws prohibiting people from carrying concealed guns and knives began to emerge, particularly in the South. These laws gave rise to the first judicial opinions addressing the scope of permitted regulation under the right to arms guarantees in the federal and state constitutions. The predominant view of the courts of this period was that the constitutional right to arms included an individual right to carry common weapons for self-defense, although legislatures could regulate the right. Many courts for example concluded that legislatures retained the power to prohibiting the concealed carrying of weapons. The Southern states continued the colonial practice of enacting highly restrictive laws prohibiting the ownership or carrying of guns by slaves and, sometimes, by free blacks, setting the precedent for broader restrictions after the Civil War. Abolitionists invoked the Second Amendment to complain about the disarmament of Free Soil settlers in Kansas in the 1850s, and to argue that the slavery and the Second Amendment were incompatible.

Chapter 6 begins with the period following the Civil War, proceeds through Reconstruction, and ends at the turn of the 19th century. In this period, the Fourteenth Amendment was adopted to protect individual civil liberties against state interference—and especially to combat abuses of newly freed slaves and their supporters. The Chapter offers examples of the many sources suggesting that the Amendment was intended to secure the individual liberties guaranteed in the federal bill of rights (including an individual right to arms for self-defense) against state infringement by state and local governments. The Chapter also tracks the decline of Reconstruction, and the failure of the initial promise of the Fourteenth amendment. Material includes the decisions by the U.S. Supreme Court narrowly interpreting the Fourteenth Amendment, rendering it of little value as a guarantor of individual liberties; adoption by the Southern states of restrictive laws of the Jim Crow era; and affirmation by Southern courts of increasingly restrictive (and often racially discriminatory) regulation of firearms—particularly the carrying and ownership of inexpensive handguns. As labor unrest grew in the North, some states prohibited mass armed parades, and the Supreme Court upheld such bans in Presser v. Illinois. The Court was, however, quite protective of armed self-defense by individuals, in “The Self-Defense Cases” which arose in federal territories. 

Chapter 7 examines the early twentieth century. In this period, gun control for individuals expanded beyond the South, as Northern states, concerned about the labor movement and unassimilated immigrants, adopt a variety of handgun control laws. The Chapter also marks the emergence of the first Federal gun control laws. In the 1930s, the federal government imposed regulation on commercial gun sales. The most significant of these was National Firearms Act of 1934 (NFA), which severely restricted ownership of a few classes of firearms viewed as unusually dangerous, such as machine guns and short shotguns. Chapter 7 is anchored by the Supreme Court’s treatment of a Second Amendment challenge to the NFA in United States v. Miller. Miller is a short and ambiguous opinion that declared that exercises of the Second Amendment right had to have a “reasonable relationship” to the maintenance of a well-regulated militia in order to be protected. For decades afterward, there was argument about whether Miller meant that the type of gun had to be suitable for a militia in order for it to be protected by the Second Amendment, or whether the individual had to be in a militia in order to have Second Amendment rights.  After Miller, lower federal courts began to develop a state-government-focused conception of the Second Amendment that gave little or no credence to individual challenges to federal or state gun regulations.

Chapter 8 is the longest chapter in this book. It covers the balance of the 20th century. The scope of federal firearms regulation grew dramatically in this period, with the passage of several major statutes, including the federal Gun Control Act of 1968, the Firearms Owners Protection Act of 1986, and the federal “assault weapons” ban that was enacted in and which expired in 2004. The Chapter offers a detailed treatment of the various issues that arise under the modern statutes and accompanying regulations, the vast majority of which remain valid even after the Supreme Court’s 2008 affirmation of the individual right to keep and bear arms in District of Columbia v. Heller. During the late 20th century, lower federal courts rejected any version of a Second Amendment right that would impose meaningful limits on gun regulation. However, the tenor of judicial treatments of the issue began to change towards the end of the century, as scholarly and political debates bolstered the individual rights theory. The Chapter includes section of social and political history that elucidates the most important bills, statutes, controversies and political battles of the period. This history provides important context for the Supreme Court’s ultimate affirmation of the individual right to arms.

Chapter 9 is dedicated to the landmark decisions in District of Columbia v. Heller and McDonald v. Chicago. In these decisions, a five-Justice majority of the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms for self-defense; that the Second Amendment right is a fundamental right made fully applicable against the states by the Fourteenth Amendment; and that handgun bans violate the Second Amendment.

Chapter 10 examines issues of gun rights and gun regulation from the special perspectives of race, gender, sexual orientation, and disability. The materials are mainly drawn from the amicus briefs filed in Heller by a variety of interest groups.

Chapter 11 addresses the aftermath of Heller and McDonald. This chapter covers several of the most important constitutional questions left unanswered by the two Supreme Court decisions, and how these topics are being addressed by state and federal courts. While, as Chapters 5 through 7 showed, state court case law on state right to arms provisions has been developing for almost two centuries, serious doctrinal development of the Second Amendment began only after Heller. Courts today are grappling with issue such as the standard of review, what types of arms are protected, and the right to “bear” arms in public places. Students and professors who want to explore gray areas in emerging legal doctrine will find Chapter 11 of particular interest.

The printed textbook ends with Chapter 11, but owners of the printed book have free access to three additional on-line chapters. These chapters are:

Chapter 12. Social science about the benefits and harms of firearms possession and use.

Chapter 13. International gun control law, from sources such as the United Nations, the Organization of American States, and other treaties and international law documents. The Chapter also covers the “Classical” period of international law, in which philosophers such as Grotius, Puffendorf, Vattel, Victoria, and Suárez built the foundations of international law partly by extrapolating from general principles of the rights and the limits of personal self-defense.

Chapter 14. Comparative gun control laws. Examining the gun laws of several nations, including Canada, the United Kingdom, Japan, Nazi Germany, Switzerland, and South Africa.

Chapter 15. While Chapter 1 provided an introduction to the different types of firearms and ammunition, and how they function, this Chapter covers the same topic in greater depth and detail. It includes many illustrations and diagrams.

While the on-line chapters are available through a locked website maintained by Aspen Publishers, there is also a free, public, website for this textbook, http://www.firearmsregulation.org. This public website provides numerous additional resources, including suggested topics for student research papers, a comprehensive list of published law review articles and ALR Annotations on arms-law topics, and links to numerous Internet resources on firearms law and policy.

 

Publishing Student research

Many students will use this book in upper-level classes in which they will write research papers. The public website offers some ideas for paper topics, as well as bibliographical and resource guides to help you get started.

Because Second Amendment doctrine is still in an early stage of development—especially in comparison to its closest analogue, the First Amendment, in which doctrinal development began in the 1930s—there are many opportunities for law student papers to make a genuine contribution to legal knowledge and analysis. If you write a good paper for your class, send it to us for consideration for publication on the public website.

]]> http://volokh.com/2011/09/18/new-law-school-textbook-on-the-second-amendment-and-firearms-regulation/feed/ 42 http://volokh.com/2011/09/16/felons-right-to-keep-and-bear-arms-in-colorado/ http://volokh.com/2011/09/16/felons-right-to-keep-and-bear-arms-in-colorado/#comments Fri, 16 Sep 2011 22:41:56 +0000 Eugene Volokh http://volokh.com/?p=50657 Yesterday’s People v. Dewitt (Colo. Ct. App.) illustrates a very different approach to the right to keep and bear arms under the Colorado Constitution than has been used under the U.S. Constitution (and other state constitutions):

On the morning of September 18, 2009, defendant walked from his apartment to a nearby King Soopers to buy groceries. He paid at a self-checkout cash register, and when he did not receive discounts on certain items, he went to the customer service counter to demand a refund. Defendant yelled at the employees on duty, used profanities, and paced in such a manner that his handgun, worn under his jacket in a holster, was visible. He continued this aggressive behavior for several minutes, prompting one employee to call 911 to report the disturbance.

When the police arrived, they checked defendant’s criminal record. They arrested him for POWPO when they learned that he was a twice convicted felon — in 1985, he pleaded guilty to giving false information to a pawnbroker, and in 1988, he pleaded guilty to attempted distribution of a controlled substance.

Defendant was ultimately charged with two POWPO [possession of a weapon by a previous offender] counts and one menacing count based on the King Soopers incident. The menacing count was dismissed on the morning of trial, and defendant was convicted by a jury of the POWPO counts. The trial court sentenced him to a six-month prison term for each count, to run concurrently, and this appeal followed….

[T]he trial court erred by refusing to give [defendant's] tendered jury instructions regarding the affirmative defense of the right to bear arms. We agree.

Under the Colorado Constitution, a person has the right “to keep and bear arms in defense of his [or her] home, person and property.” Colo. Const. art. II, § 13; see People v. Blue, 190 Colo. 95, 103, 544 P.2d 385, 391 (1975). [Footnote: Defendant expressly bases his contention solely on article II, section 13 of the Colorado Constitution. Accordingly, we need not address any issues regarding the Second Amendment to the United States Constitution.] Thus, a defendant charged with POWPO may raise as an affirmative defense that he or she possessed a weapon for the constitutionally protected purpose of defending his or her home, person, or property. People v. Ford, 193 Colo. 459, 462, 568 P.2d 26, 28 (1977); see also CJI-Crim. 7:63 (1993). As long as there is competent evidence in the record of a constitutionally protected purpose, a defendant is entitled to such an affirmative defense, and it will be for the jury to decide the issue of the defendant’s purpose in possessing the weapon.

A defendant need only present “some credible evidence” in support of the affirmative defense, which is another way of stating the “scintilla of evidence” standard. The evidence necessary to justify an affirmative defense instruction may come solely from the defendant’s testimony, however improbable. If the defendant meets this standard, the prosecution then has the burden to disprove the affirmative defense beyond a reasonable doubt….

Based on our de novo review of the record in this case, we conclude defendant’s testimony was sufficient to support the tendered affirmative defense instructions on his constitutional right to bear arms. Defendant testified that he regularly walked from his apartment to the King Soopers in question armed with his handgun. When asked for his reason for purchasing and carrying the gun, including on the morning of his arrest, defendant testified several times that it was for “self-defense.” He also stated that he had “concerns for [his] personal safety” and for his “property,” both in his home and in his neighborhood. According to defendant’s testimony, he was aware of reports of recent muggings at the King Soopers, and he had “seen some things in [his] own neighborhood that just … put the alert on, put [him] in a code yellow … more of an alert status, where [he] used to be more relaxed and never worried about anything.” In addition, defendant testified that someone had attempted to break into his apartment twice in 2009. Thus, defendant not only testified to a general fear for his personal safety, but also tied his fear to specific trends of violence and incidents in the areas where he regularly walked and in the stores that he regularly visited, including the King Soopers store.

Viewing this testimony in the light most favorable to defendant, we conclude it constitutes some credible evidence that he carried his handgun for the constitutionally protected purposes of defending his person and his property.

This case is distinguishable from People v. Barger, 732 P.2d 1225, 1226 (Colo. App. 1986), relied on by the People and by the trial court in its ruling. In Barger, the defendant chose to carry a gun into a bar, but there was no evidence in the record that he reasonably feared for his safety on his way to the bar or in the bar itself….

As the citation to the 1977 Colorado Supreme Court case People v. Ford shows, this doctrine isn’t new in Colorado; but I hadn’t seen the Ford doctrine much referred to recently. This case makes clear, though, that this interpretation of the state constitutional right to keep and bear arms is still being followed in Colorado. For the one other recent state appellate case recognizing some felons’ right to keep and bear arms, see this discussion of Britt v. State (N.C. 2009), though the right secured there seems much narrower than the one secured by DeWitt (and Ford) in Colorado.

Of course, felons in Colorado get only limited benefit from this ruling, because they are still generally barred by federal law from possessing a gun, and the Colorado Constitution doesn’t affect the application of that federal law. But in practice, a defense against a state prosecution remains useful even if it won’t work against a federal prosecution, because many such felon-in-possession cases are brought only under state law by state prosecutors (since there are many more such prosecutors in Colorado than federal prosecutors).

]]> http://volokh.com/2011/09/16/felons-right-to-keep-and-bear-arms-in-colorado/feed/ 32 http://volokh.com/2011/09/15/the-second-amendment-and-illegal-aliens-a-rare-decision-thats-other-than-a-total-defeat/ http://volokh.com/2011/09/15/the-second-amendment-and-illegal-aliens-a-rare-decision-thats-other-than-a-total-defeat/#comments Thu, 15 Sep 2011 16:47:20 +0000 Eugene Volokh http://volokh.com/?p=50624 The case is United States v. Guerrero-Leco (4th Cir. Sept. 15):

Daniel Guerrero-Leco, an alien illegally in the United States, pled guilty to possessing a firearm in violation of 18 U.S.C. § 922(g)(5), and the district court sentenced him to a 24-month term of imprisonment. Before pleading guilty, Guerrero-Leco unsuccessfully moved to dismiss the indictment, arguing that § 922(g)(5) [which criminalizes gun possession by illegal aliens –EV] violates the Second Amendment. His guilty plea is conditioned on his right to appeal the denial of his dismissal motion, and that is the matter now before us.

Guerrero-Leco’s argument is premised on District of Columbia v. Heller, 554 U.S. 570 (2008), in which the Court held generally that the Second Amendment confers an individual right to bear firearms for self-protection. After this appeal was filed, we held in United States v. Chester, 628 F.3d 673 (4th Cir. 2010), that a two-prong analysis is appropriate to determine whether a statute or regulation violates a defendant’s Second Amendment right to bear firearms. As we explained:

The first question is “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification. If it was not, then the challenged law is valid. If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny.

Because the district court in Chester had not undertaken that analysis, we vacated the judgment and remanded for further proceedings.

At our request, the parties have filed supplemental briefs addressing Chester. In his brief, Guerrero-Leco argues that this case is similar to Chester and United States v. Pruess, 416 Fed. Appx. 274, 275 (4th Cir. 2011), and that we should vacate the judgment and remand this case to the district court with instructions to undertake the Chester analysis in the first instance. We agree.

Accordingly, we vacate the judgment and remand for further proceedings consistent with this opinion. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

I suspect that on remand, the district court will build on its earlier decision, which held that illegal aliens are outside the scope of the Second Amendment, and perhaps borrow from United States v. Portillo-Munoz (5th Cir. June 13, 2011), which elaborated in some detail on this argument. And I suspect that on further appeal, the Fourth Circuit will largely agree with the Fifth on this score. But at least at this point, the Fourth Circuit was unprepared to itself dismiss the defendant’s argument on this score.

]]> http://volokh.com/2011/09/15/the-second-amendment-and-illegal-aliens-a-rare-decision-thats-other-than-a-total-defeat/feed/ 125 http://volokh.com/2011/09/14/congressional-hearing-on-interstate-handgun-carry-reciprocity/ http://volokh.com/2011/09/14/congressional-hearing-on-interstate-handgun-carry-reciprocity/#comments Thu, 15 Sep 2011 02:21:45 +0000 David Kopel http://volokh.com/?p=50609 On Tuesday I testified before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. My 24-page written testimony is here. The video of the subcommittee hearing is about and hour and 45 minutes. Nearly all members of the 21-member attended the hearing, and used their opportunity to ask 5 minutes worth of questions. Most of the questions posed to George Mason Law’s Prof. Joyce Malcolm, Philadelphia Police Commissioner Charles Ramsey, and me, were quite thoughtful. Some congressional hearings are just a form of kabuki theater, but in Tuesday’s hearing, Representatives of both parties, and on both sides of the gun issue, seemed to be sincerely trying to learn more. The bill currently has 243 House co-sponsors.

]]> http://volokh.com/2011/09/14/congressional-hearing-on-interstate-handgun-carry-reciprocity/feed/ 80 http://volokh.com/2011/09/14/florida-restriction-on-doctors-asking-about-guns-likely-violates-the-first-amendment/ http://volokh.com/2011/09/14/florida-restriction-on-doctors-asking-about-guns-likely-violates-the-first-amendment/#comments Thu, 15 Sep 2011 02:12:46 +0000 Eugene Volokh http://volokh.com/?p=50608 So holds Wollschlaeger v. Farmer (S.D. Fla. decided today), I think quite correctly. The Florida statute that was finally passed is much narrower than the version that I condemned in January, but it’s still a speech restriction. And though the constitutional status of professional-client speech is unsettled, I think that on balance a restriction such as this should indeed be considered unconstitutional.

I have to run now, so I can’t get into this in more details, but I thought I’d note the case, since I suspect many of our readers will find it interesting. Thanks to Prof. Michael Masinter for the pointer.

]]> http://volokh.com/2011/09/14/florida-restriction-on-doctors-asking-about-guns-likely-violates-the-first-amendment/feed/ 193 http://volokh.com/2011/09/05/the-rise-and-fall-of-the-second-amendment-collective-right/ http://volokh.com/2011/09/05/the-rise-and-fall-of-the-second-amendment-collective-right/#comments Mon, 05 Sep 2011 19:38:04 +0000 David Kopel http://volokh.com/?p=50189 My recent article for America’s 1st Freedom traces the rise and fall of the theory that the Second Amendment is not an individual right, but instead is a “collective right,” which, like “collective property” in a communist country, supposedly belongs to everyone collectively, but in fact belongs to no-one. The theory was created by a federal district judge in 1935, formally named by the New Jersey Supreme Court in 1968, and became popular among lower federal courts during the next quarter-century.

Historical and textual analysis made it increasingly clear that the theory was completely implausible, and it was unanimously rejected by the U.S. Supreme Court in the 2008 case District of Columbia v. Heller. In that case, all nine justices agreed that the Second Amendment right was individual, while they disagreed about its scope.

]]> http://volokh.com/2011/09/05/the-rise-and-fall-of-the-second-amendment-collective-right/feed/ 58 http://volokh.com/2011/08/26/gunpowder-lust/ http://volokh.com/2011/08/26/gunpowder-lust/#comments Fri, 26 Aug 2011 22:39:54 +0000 Eugene Volokh http://volokh.com/?p=49867 A commenter on the thread about the London Olympic Games’ initial decision to exclude shooting sports from its ticket giveaway to schoolchildren inadvertently makes the point I was getting at:

Another post today I am missing the point of. Are we now supposed to be outraged when other societies do not share our gunpowder lust?

The problem is precisely with the sense that anything having to do with guns must be a sign of “gunpowder lust.” The shooting sports aren’t Olympic sports because of “gunpowder lust,” just like archery isn’t an Olympic sport because of “arrow lust.” It’s an Olympic sport because it’s a highly demanding athletic event (though it demands somewhat different forms of athleticism than, say, basketball), and — secondarily — because it’s an event with a long historical link to a tradition of military service. Dismissing respect for the sport, and the desire that children have an opportunity to learn about this sport, as a manifestation of “gunpowder lust” strikes me as a form of prejudice against guns that’s hard to rationally defend.

The same is true, though for other reasons, when people dismiss support for private gun ownership as “gunpowder lust.” But I don’t think we need to focus on that in confronting objections such as the one I quoted: Whatever one’s views of gun control policy, sneering at the shooting sports as reflecting “gunpowder lust” reveals a loathing of guns that makes little sense.

]]> http://volokh.com/2011/08/26/gunpowder-lust/feed/ 259 http://volokh.com/2011/08/26/children-going-to-see-olympic-shooting-events-the-horror/ http://volokh.com/2011/08/26/children-going-to-see-olympic-shooting-events-the-horror/#comments Fri, 26 Aug 2011 17:15:05 +0000 Eugene Volokh http://volokh.com/?p=49857 As the Evening Standard (UK) reported Tuesday (thanks to Robert Dittmer for the pointer),

London schoolchildren are eligible for 125,000 [free] Olympic tickets but these will not include any featuring guns, as Games organisers and City Hall fear a backlash from the anti-gun lobby.

Giving children tickets to the events, at the Royal Artillery Barracks in Woolwich, could have appeared at odds with Mayor Boris Johnson’s bid to quell teenage gun and knife crime.

A source said: “We decided it would not be appropriate. It’s the only sport children will not be able to go to as part of the Ticketshare scheme.” …

Fortunately, as The Telegraph (UK) reported today, the exclusion has now been reversed.

]]> http://volokh.com/2011/08/26/children-going-to-see-olympic-shooting-events-the-horror/feed/ 64 http://volokh.com/2011/08/19/could-president-perry-carry-a-gun/ http://volokh.com/2011/08/19/could-president-perry-carry-a-gun/#comments Fri, 19 Aug 2011 20:58:10 +0000 David Kopel http://volokh.com/?p=49599 Chris Moody attempts to analyze the issue for The Ticket. The analysis could have been improved by reading the laws of the District of Columbia.

Moody describes D.C. as “a city that bans carrying firearms.” That’s not exactly correct. The D.C. Code generally prohibits carrying a firearm “without a license issued pursuant to District of Columbia law.” D.C. Code § 22-4504. It is true that in practice, the D.C. government virtually never issues carry licenses to citizens. However, the Code makes various exceptions to the license requirement, including that “The provisions of § 22-4504 shall not apply . . .to officers or employees of the United States duly authorized to carry a concealed pistol . . .” § 22-4505(a).

Thus President Perry could simply authorize himself to carry a concealed pistol. For good measure, he could likewise authorize the entire White House staff, or indeed every single employee of the United States government, to also carry a concealed pistol in D.C.

As the Moody article points out, President Perry could ask the D.C. police to deputize him, in order to take advantage of the D.C. law allowing the police to carry guns, but President Perry would have no practical need to ask the D.C. police to use their discretion to grant him the ability to do something he can do without their permission anyway.

UCLA’s Adam Winkler suggests that President Perry could issue an Executive Order authorizing him to carry. Executive Orders can apply solely to the Executive Branch of the federal government. An Executive Order could be  one mechanism (although certainly not the only one) by which President Perry could “duly authorize[]” gun carrying by himself or Executive Branch employees. However, if the D.C. Code did not have the exception for federal  employees, then it’s doubtful that an Executive Order could overcome a carrying ban enacted by the D.C. City Council. One might argue that since the entire D.C. city government, with its limited home rule powers granted by Congress, is part of the federal government, the President can by Executive Order negate the operation of a D.C. City Council law. However, as far as I know no President has ever tried to go so far with an Executive Order. And an Executive Order certainly cannot violate a specific congressional statute, including the statute granting partial home rule powers to the D.C. City Council. (The congressional grant of home rule actually excluded criminal law, so D.C. styles its anti-gun laws as “health” laws, and the courts have thus far let D.C. get away with it. However, even if the D.C. gun laws are arguably ultra vires, an Executive Order would not seem to be the appropriate mechanism to deal with them.)

Moody also raises the issue of the Secret Service:

The Secret Service, however, could make a very serious argument that the president shouldn’t be carrying a weapon for his own protection. Remember, a spirited debate broke out in the days leading up to President Obama’s inauguration over whether he would be forced to surrender his Blackberry for security concerns. (In the end, Obama got to keep his Blackberry, but under certain conditions.) If a Blackberry’s almost off limits, you can imagine how the Secret Service might react if the president wanted to pack a Glock.

Well, President Obama’s decision to accept some restrictions on his Blackberry was his choice, presumably made after considering the advice of the Secret Service. The President is in charge of the Secret Service, and not vice versa. The Secret Service cannot “force” him to do anything. They’re not a Praetorian Guard. So when First Lady Eleanor Roosevelt refused to allow the Secret Service to drive for her, or even accompany her, as she traveled around the United States, there was nothing the Secret Service could do about it. The Secret Service did urge her to carry a concealed handgun, and learn how to use it, and she took their advice. After the assassination of President William McKinley, new President Theodore Roosevelt started carrying his own handgun for protection.

As far as we know, there is not a shred of evidence that concealed carry by either Roosevelt had any negative impact on their security. So there’s no reason to imagine that the Secret Service would have a good reason to urge President Perry not to carry a handgun. Unlike a Blackberry, a handgun does not send wireless communications which could be intercepted by foreign spies, nor does it contain a GPS device which can reveal the user’s location.

]]> http://volokh.com/2011/08/19/could-president-perry-carry-a-gun/feed/ 115 http://volokh.com/2011/08/08/the-dictionary-of-misinformation/ http://volokh.com/2011/08/08/the-dictionary-of-misinformation/#comments Mon, 08 Aug 2011 18:15:28 +0000 Eugene Volokh http://volokh.com/?p=49165 My father Vladimir pointed me to this passage in a 1975 book, The Dictionary of Misinformation, which aims to rebut various commonly believed myths:

right to keep and bear arms, the. The second article of the Bill of Rights of the United States Constitution reads — in whole, not in part, italics furnished — “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” Nothing in the Constitution, thus, forbids the right of federal or state governments to make any gun-control laws they wish in terms of an individual who is not a member of a “well-regulated militia.”

I thought our readers might find this interesting, partly because it does reflect what was the generally accepted view among legal academics in 1975, and thus shows just how much things have changed in a few decades.

]]> http://volokh.com/2011/08/08/the-dictionary-of-misinformation/feed/ 114 http://volokh.com/2011/08/05/rifle-golf-americas-newest-shooting-sport/ http://volokh.com/2011/08/05/rifle-golf-americas-newest-shooting-sport/#comments Fri, 05 Aug 2011 23:40:54 +0000 David Kopel http://volokh.com/?p=49023 If you’re interested in long distance rifle shooting, or in hunting with a rifle, I highly recommend that you check out the Spirit Ridge Rifle Golf facility, in Utah. The “golf” part of the name is really just part of the rules for how your shots are scored. Other than that, it’s all rifle and no golf, and it’s one of the best opportunities I’ve ever seen to test one’s rifle skills.

The facility is about 90 miles north of Salt Lake City, near Tremonton, Utah. It’s remote, but well worth a detour. A round of “rifle golf” works like this: Accompanied by a guide, you drive  a six-mile loop on a dirt road on a sheep ranch. Along the way, you stop at four different shooting stations. The stations have tables and chairs for benchrest shooting. At the first station, your first target to shoot at is a black wooden silhouette of a moose, at 442 yards away. At the place where a hunter would place an ideal shot on the moose (at the center of the heart/lungs area), there is a hanging half-circle white metal plate, about 11 inches in diameter. If you hit the plate on the first shot, that’s scored as an “eagle” (2 under par). If you get the plate on the second shot, that’s a birdie (1 under par). If you miss the first two shots at the distant target, you take your third shot at something closer; on “hole” 1, that’s a deer at 285 yards.

Each shooting station has three “holes.” So at the first station, you would also try for a grizzly bear (384 yards) and a coyote (169 yards), and then for another moose (511 yards) and a grizzly (192 yards). Your guide will have a very high-powered spotting scope, and give you advice (e.g., “your first shot was perfectly centered, but an inch too high”). For all shooting, you’re one side of a valley, shooting at a slope on the other side.

Shooting stations 3 and 4 are the same, with targets ranging from 558 to 188 yards. Station 2 has a single target, a moose at 1000 yards. You get two shots, and if you hit either, strokes are deducted from you total score. If you get it on the first shot, you win a prize.

What I’ve just described is the “classic” course. If you’re already an excellent long distance shot, you can shoot at the “master” targets at each shooting station. The long shots are up to 875 yards, and the shortest is 399. On the thousand-yard hole, your target can be up to 1250 yards away.

Rifle golf provides shooting challenges that most people can never try except when actually hunting. For most people, it’s difficult to find a shooting range longer than 200 yards. Even if you’re lucky enough to live near a 600 yard range, at the range you and the target will both be at the same elevation. In contrast, the rifle golf targets are at a wide variety of elevations, either higher or lower than the shooter. Thus, it is all the more challenging to estimate how far the bullet will drop due to gravity. (If your rifle scope is zeroed in for 200 yards, then a shot at a target 200 yards away should hit right at the point indicated by the crosshairs on your scope. If the target is further away, then you will need to aim above the cross-hairs point, because as the bullet travels further, it slows down from air friction, and drops more and more due to gravity.) Of course for any given shot, the wind may be blowing, and you’ll have to take that into account in placing your shot.

An ethical hunter must have the realistic confidence that a particular shot can be placed where it will quickly kill the animal (either the heart/lungs, or the brain). A shot that hits the animal somewhere else (e.g., the guts or  a leg) is a failure; the animal may eventually die from infection, but not necessarily quickly. So for hunting, if you see an elk 275 yards away, you must know whether you and your rifle have the ability to make an ethical shot at that particular distance. Rifle golf is an outstanding way to get a sense of your abilities for long distance shots, so that you can take ethical shots, and avoid unethical ones. Indeed, rifle golf raises the bar somewhat higher, because the white plates constitute only a fraction of the parts of the animal that would constitute an ethical shot. So if you can consistently hit the plate at a given distance, then you can be confident that you can take ethical shots at that distance. (After accounting for other factors, such as whether your field rest of the rifle (e.g., shooting sticks) are as steady as a rifle golf bench.)

Whether or not you hunt, rifle golf is great fun for long distance shooting. Almost any centerfire caliber of .223 or above should be usable for the classic course. Just be sure that your rifle has a scope on it.

Compared to golf golf, the Spirit Ridge Rifle Golf clubhouse is primitive, with running water and toilets, but not much else. So plan on bringing all the gear you need. Presuming you don’t show up with an ATV, you’ll need to rent one of those at the course, and it’s worth paying extra (including a tip) for a guide to go with you, especially your first time around the course.

Spirit Ridge Rifle Golf is an extraordinary shooting experience. I’ve been to shooting facilities all over the United States, and never found anything remotely comparable to rifle golf. I very highly recommend it.

]]> http://volokh.com/2011/08/05/rifle-golf-americas-newest-shooting-sport/feed/ 91 http://volokh.com/2011/07/23/the-second-amendment-and-people-who-have-past-minor-misdemeanor-no-jail-time-possible-marijuana-possession-convictions/ http://volokh.com/2011/07/23/the-second-amendment-and-people-who-have-past-minor-misdemeanor-no-jail-time-possible-marijuana-possession-convictions/#comments Sat, 23 Jul 2011 23:50:59 +0000 Eugene Volokh http://volokh.com/?p=48775 Ohio Rev. Code § 2923.13 bans gun possession by (among others) anyone who “has been convicted of any offense involving the illegal possession … in any drug of abuse.” (Ohio Rev. Code § 2923.14 allows the person to petition for relief from this disability after the person’s prison, probation, and parole is up, but any such relief is discretionary with the court, and turns on the judge’s opinion about whether the person “appears likely to continue to” lead “a law-abiding life.”) Paul Stone had been convicted in 2006 of possession of marijuana, “a minor misdemeanor” under § 2925.11. How minor, in the state’s view? It can’t lead to any jail time; the only possible penalty is a fine of up to $150, plus possibly community service of no more than 30 hours. It isn’t even treated as “a criminal record” for purposes of employment or licensing questions about the person’s criminal record. But then in 2010, he was indicted for felony gun possession under &sec; 2923.13, based on the minor misdemeanor.

The trial court dismissed the indictment, holding that § 2923.13 didn’t cover gun possession following minor misdemeanor convictions. But State v. Stone (Ohio Ct. App., decided yesterday) just reversed the dismissal of the indictment, and held that Stone could indeed be prosecuted. The court concluded that the text of § 2923.13 indeed covered even minor misdemeanor convictions. And then it held that Stone lost his Second Amendment rights, because of this minor misdemeanor conviction. Here is the entirety of its Second Amendment analysis:

Appellee [i.e., Stone] also urges this court to affirm the trial court’s dismissal based upon the Second Amendment to the United States Constitution, which, pursuant to District of Columbia v. Heller (2008), 554 U.S. 570, protects an individual’s right to possess a firearm. In advancing this argument, appellee acknowledges that this right is not unconditional and points out that Heller identified various forms of reasonable restrictions a state may place upon a citizen’s ability to have a firearm. Appellee submits, however, the limited list of such restrictions does not include, nor is there obvious historical precedent for, legislation that has the effect of completely abrogating a citizen’s right to bear arms as it pertains to a misdemeanant with no criminal record.

Although appellee sets forth strong policy considerations, which might militate in favor of a legislative shift in this area of criminal law, a careful review of the statutory provisions at play in this case demonstrates that the trial court erred in dismissing the underlying indictment. Our analysis and resolution of the issue is controlled by this court’s recent holding in Gex, supra.

In Gex, this court determined that a defendant’s conviction for having a weapon while under disability was supported by sufficient evidence even though the disability was occasioned by minor misdemeanor marijuana possession…. Applying Gex to the case at bar, it is undisputed that appellee was previously convicted of minor misdemeanor marijuana possession in violation of R.C. 2925.11, a drug abuse offense. Appellee’s previous conviction, therefore, constitutes a disability prohibiting him from acquiring, having, carrying, or using a firearm or dangerous ordnance. Because there is nothing in the record indicating appellee was relieved from the disability via the mechanism set forth under R.C. 2923.14, he could be charged, as a matter of law, with having a weapon under a disability. We therefore hold the state’s position is well-taken ….

As a postscript, we again emphasize that appellee’s arguments would be better directed at the General Assembly than the judiciary. Although he claims otherwise, accepting appellee’s position would essentially eliminate the plain language of R.C. 2925.01(G)(1) as it relates to the disability statute — an outcome we must obviously avoid in construing statutes. Read plainly, even though R.C. 2925.11(D) does not create a criminal record, minor misdemeanor possession is still a conviction which is premised upon a statutorily-designated drug abuse offense; to wit, marijuana possession. Both appellee and the trial court are correct that the legislature has demonstrated an intent to lessen the impact of such convictions. Still, until the General Assembly specifically excludes an R.C. 2925.11 minor misdemeanor marijuana possession conviction from the purview of R.C. 2923.13(A)(3) or R.C. 2925.01(G)(1), it will remain a “drug abuse offense” and consequently a “disability” for purposes of R.C. 2923.13(A)(3).

But nothing in the Stone court’s analysis actually dealt with Stone’s argument that § 2923.13 violates the Second Amendment in this sort of case, and Gex, the precedent that the court relied on, didn’t even discuss the Second Amendment. So while Stone specifically made a constitutional argument to the court, the court seems to have rejected the argument simply on the grounds that Stone’s conduct is covered by the statute — without at all considering the possibility that the statute in this case violates the Constitution. (The court doesn’t say that Stone’s argument is somehow unpreserved because he didn’t raise the Second Amendment question below, so I take it that either Stone did make the argument, or that in Ohio courts the prevailing party below may defend the judgment below on any ground reasonably raised by the record. [UPDATE: I have now confirmed that Stone did make a Second Amendment argument in the trial court.])

So it seems that the court is concluding that the Second Amendment doesn’t protect people who have even a minor misdemeanor marijuana possession conviction — not a felony, not a violent misdemeanor, not even a misdemeanor that could yield any time at all in jail, and not anything that involves a finding that the defendant is an illegal drug user right now — without at all explaining why this should indeed be so. Strikes me as pretty hard to defend; or am I missing something here?

]]> http://volokh.com/2011/07/23/the-second-amendment-and-people-who-have-past-minor-misdemeanor-no-jail-time-possible-marijuana-possession-convictions/feed/ 130 http://volokh.com/2011/07/10/cert-grant-in-millender-v-la-qualified-immunity-for-an-unconstitutional-general-warrant-to-seize-firearms/ http://volokh.com/2011/07/10/cert-grant-in-millender-v-la-qualified-immunity-for-an-unconstitutional-general-warrant-to-seize-firearms/#comments Sun, 10 Jul 2011 22:00:19 +0000 David Kopel http://volokh.com/?p=48317 The Supreme Court recently granted certiorari in Millender v. Los Angeles. Here are the background facts: Bowen shoots at his ex-girlfriend with a sawed-off shotgun. The police obtain a search warrant for the home of Bowen’s 73-year-old former foster mother. The warrant application does not disclose that Bowen last lived with his foster mother 15 years ago. (The girlfriend suggested to the police that Bowen might be hiding there.) The warrant authorizes the seizure of all firearms on the premises, not merely the particular gun which had been used in the crime against the girlfriend.

The police executed a 5 a.m. dynamic entry, and in the course of their search, seize a firearm which is lawfully owned by the 73-year-old woman, Augusta Millender. She sues, and the 9th Circuit en banc rules that the warrant was objectively unconstitutional. The officer who procured the warrant (and Los Angeles, by respondeat superior) are not entitled to qualified immunity, because the warrant to seize all firearms was so clearly unconstitutional, based on settled law.

In the certiorari grant, the Questions Presented are:

This Court has held that police officers who procure and execute warrants later determined invalid are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” United States v. Leon, 468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335,341,344-45 (1986). The Questions Presented are: 1. Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search? 2. Should the Malley/Leon standards be reconsidered or clarified in light of lower courts’ inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?

The phrasing of the Questions Presented further suggest that attorneys for Respondents have an uphill battle. The Supreme Court docket page is here; the full history of the case in the district court and the Ninth Circuit, with full text of many of the relevant documents, is available at the website of California attorney Chuck Michel. Michel is, in my opinion, one of the top two firearms law lawyers in California, the other being Don Kilmer.

In conjunction with Stephen Halbrook, Michel filed an amicus brief in Millender, on behalf of the National Rifle Association and the California Rifle and Pistol Association Foundation. The brief explains how the Fourth Amendment’s prohibition on general warrants is closely entwined with the right to arms; for example, the 1662 gun ban of the wicked Stuart king Charles II was enforced by general warrants.

The Questions Presented seem to presume the unconstitutionality of the general warrant, with the only issue before the Court being qualified immunity. The Halbrook/Michel argument on qualified immunity points out that

Detective Messerschmidt knew that the only firearm involved in the crime was a black, pistol-gripped, short barreled shotgun.  He nonetheless drafted a general warrant authorizing search and seizure of all firearms and firearm parts from the home of an elderly woman, her daughter, and her grandson, knowing that the suspect (Bowen) did not even live in that home.  Messerschmidt cannot now rely on the defense that he persuaded others up the chain to approve his general warrant.

…

It bears repeating that the affidavit failed to disclose that the residence was that of an elderly lady and her relatives, not that of the suspect.

Although Los Angeles argues that the unconstitutionality of the warrant was not clearly established at the time the warrant was executed, Halbrook and Michel point to:

Groh v. Ramirez, 540 U.S. 551 (2004), aff’g Ramirez v. Butte-Silver Bow County, 298 F.3d 1022 (9 th Cir. 2002), involved a general warrant obtained to search for unregistered firearms, but the warrant contained no list of firearms to seize.  Id. at 554.  A list of firearms was included in the affidavit, but not attached to the warrant.  Id.  Only lawful firearms were found.  Id. at 555.  The homeowners later filed a civil rights action for damages.  Id.  The Supreme Court upheld the Ninth Circuit’s conclusion in Groh that the search was unlawful and that the agent who secured the warrant and led the search could not rely on the defense of qualified immunity.  Id. at 563-566.

Moreover,

In Groh, the law was clearly established in the very text of the Fourth Amendment.  Case law condemning general warrants in England dates back to at least 1765 in Entick, and in the United States, to 1886 in Boyd.  The general warrant here–to search for all firearms and related items, when only a black, pistol-gripped, short-barreled shotgun was at issue, and it had little or no connection to the house to be searched–clearly violated the Fourth Amendment, would be known to do so by any competent officer, and was not sanctified by being rubber stamped by higher ups.

Michel has announced that NRA and CRPAF will file an amicus brief in the Supreme Court, in part to explain to the Court the problem of law enforcement officers seizing large numbers of lawfully-possessed firearms in order to boost gun seizure statistics.

I hope that at some point Orin Kerr will be able to provide his insights on Millender.

This Court has held that police officers who procure and execute warrants later

determined invalid are entitled to qualified immunity, and evidence obtained should not

be suppressed, so long as the warrant is not “so lacking in indicia of probable cause as

to render official belief in its existence entirely unreasonable.” United States v. Leon,

468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335,341,344-45 (1986). The

Questions Presented are: 1. Under these standards, are officers entitled to qualified

immunity where they obtained a facially valid warrant to search for firearms,

firearm-related materials, and gang-related items in the residence of a gang member

and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her,

and a district attorney approved the application, no factually on point case law

prohibited the search, and the alleged overbreadth in the warrant did not expand the

scope of the search? 2. Should the Malley/Leon standards be reconsidered or clarified in

light of lower courts’ inability to apply them in accordance with their purpose of

deterring police misconduct, resulting in imposition of liability on officers for good faith

conduct and improper exclusion of evidence in criminal cases?

]]> http://volokh.com/2011/07/10/cert-grant-in-millender-v-la-qualified-immunity-for-an-unconstitutional-general-warrant-to-seize-firearms/feed/ 93