The Volokh Conspiracy

If the government can prohibit my possession of a firearm without infringing on my Second Amendment rights, could it not also prohibit my possession of a Bible without infringing on a First Amendment right? Both items are merely property.

Remind me again why people put so much effort into helping Chemerinsky keep his new job?

If having ever made an unpersuasive argument were a disqualification for becoming a law school dean, there would be very few people eligible for the position.

КПСС-FM? Cali's awesome... :)

Well yes, there's a certain elasticity in the "levels of scrutiny" approach as well, but at least we have the benefit of a lot of case law that gives one a rough idea of how things will go in 14th Amendment equal protection cases. It's hard to predict how "reasonable regulation of gun ownership" would turn out as it's hard to analogize that to equal protection. "Reasonable" could encompass nearly anything or nearly nothing.

If they find an individual right to keep at one's home. The next case will be over mandatory as opposed to discretionary issuance of permits to bear those arms. After all its "keep and bear".

Many states have moved in the past 20 years to a mandatory permit to carry system, which removes from local politicians the right to play games by approving permits for their buddies and those who guard the property of the rich, and dening permits to the middle class and poor and not connected to the politically powerful. If the Supremes actually uphold the constitution (as opposed to issuing yet another unconstitutional decision) then someday all states should be forced to a mandatory permit to carry system.

Mandatory systems can require background checks, training, etc., but it must be done on an objective basis as opposed to the subjective whims of some bureaucrat.

Says the "Dog"

Dream on Dog,
As far as I know, no court has ever found a right for concealed carry based on the 2nd amendment, it has always been granted explicitly either in the state constitution or by statute.

If the provison that no handgun may be possessed in DC which was not registered in 1976 is struck down, what effect, if any, would that decision have on the fed law prohibiting possession of any Class 3 (full auto) weapon which was not registered by 1986?

Aren't you eliding the difference between open carry and concealed carry? "Bearing arms", in 1791, meant bearing them openly, right?

No. There are no laws against concealed carry in the United States until Kentucky's 1813 statute, struck down in Bliss v. Commonwealth (Ky. 1822) for violating the Kentucky Const. provision. See my book Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999).

You can even make a weak argument based on the common law prohibition on carrying arms to the terror of the people that concealed carry was more protected than open carry.

One of the gun control laws that has been suggested as perhaps being reasonable, is registration of all guns.

If the court upholds the individual right view, isn't there enough precedent on other rights, that such registaion would have to be free to the registrant?

You can make an argument that registration doesn't infringe on the rights of the law-abiding. There were various attempts to record how many guns are present in communities in preparation for war, and of course, there are mandatory gun ownership laws as well.

There aren't really any gun registration laws in 1791. There isn't even any clear way to identify who a gun belongs to, except by detailed descriptions of names carved into stocks, and little quirks of the design. My book Armed America gives examples of the struggles that some of the colonies go through trying to enforce the various gun control laws of the time because of this.

However: most people don't realize that while gun registration is reasonable regulation, the Supreme Court has already ruled that convicted felons, psychotics, and anyone else who can't legally own a gun is exempt from gun registration. Haynes v. U.S (1968) found that punishing people who can't lawfully own a gun for failing to register a gun violates their Fifth Amendment right against self-incrimination. The only people that mandatory gun registration applies to are those who aren't the problem.

On another note, can anybody put forth a good argument for how registration will reduce crime? At best, if you require firearm registration every time a firearm is sold, including private sales, you will only learn who the last lawful owner was. This may allow prosecution if the last owner illegally sold the firearm, but how many crimes might that prevent?

The only way in which registration might actually make a difference is to prosecute people for unlawful transfers of firearms. I think that if done consistently, with heavy fines for those who do so, it might discourage unlawful transfers, since I presume that most of those doing so are financially motivated.

What concerns me is the potential for later confiscation. A clear statement that the government does not have the authority to disarm the general population might make registration and a requirement for all guns to transferred with a paperwork trail more tolerable. And the agitation for banning guns, or trying to bankrupt the manufacturers, has to stop.