So What Gun Regulations Are Reasonable?
Perhaps the question most commonly asked by reporters about yesterday's decision in Heller, is how it will affect the constitutionality of other gun laws. I believe Justice Scalia signaled that regulations short of a ban should be scrutinized the way we do "time, place, and manner" regulations of speech when he equated the Second Amendment with the First: "There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not."
An article by Gary Barnett, a rising 3L at Georgetown Law, just appeared in the Georgetown Journal of Law and Public Policy contending that the doctrines construing the individual rights in the First Amendment should be applied analogously to the rights protected Second Amendment. (This is what he calls the Common Law Constructive Method.) He provides a very useful survey of First Amendment doctrines and then considers how they might need to be altered or refined to work in the Second Amendment context.
His article, The Reasonable Regulation of the Right to Keep and Bear Arms can be downloaded from SSRN here. Here is the abstract:
An article by Gary Barnett, a rising 3L at Georgetown Law, just appeared in the Georgetown Journal of Law and Public Policy contending that the doctrines construing the individual rights in the First Amendment should be applied analogously to the rights protected Second Amendment. (This is what he calls the Common Law Constructive Method.) He provides a very useful survey of First Amendment doctrines and then considers how they might need to be altered or refined to work in the Second Amendment context.
His article, The Reasonable Regulation of the Right to Keep and Bear Arms can be downloaded from SSRN here. Here is the abstract:
The Supreme Court has recently held in District of Columbia v. Heller that the Second Amendment protects an individual right to keep and bear arms. That decision, however, is only the beginning of the inquiry. Individual rights, via the police power, are subject to reasonable regulation. The difficult question remaining is whether a particular regulation is unreasonable, unduly infringing on an individual's right to keep and bear arms, and is therefore unconstitutional. This note proposes a workable analytic approach to addressing this question. Guided by the Common Law Constructive Method, this note takes First Amendment time, place, and manner doctrine and transposes it onto the Second Amendment.Here is a taste of his analysis (which I have edited to omit references to First Amendment cases discussed elsewhere in the article):
The Common Law method of construction teaches an important lesson about the reasonable regulation of the right to keep and bear arms. If the very same degree of scrutiny that is applied to restrictions on speech in a pubic forum were applied to restrictions on guns in a public forum, far more gun laws would be upheld as constitutional than laws restricting speech. This is because, with gun laws, the government can almost always provide a safety rationale for enacting a particular regulation. In other words, any gun restriction can be justified on the grounds of safety. This effectively eliminates the half of the test requiring a significant government interest. In contrast, in First Amendment law, absent a clear and present danger, speech rarely threatens health and safety in the same way. This inability of the government to have an ever-present safety rationale creates an inherent protection for speech within First Amendment law. In other words, because it is more difficult for the government to articulate a significant interest, it can enact fewer restrictions. This lack of protection in the Second Amendment law should be supplemented by requiring a law be the least intrusive means to achieving the government’s stated end. . . .This article is a useful starting point for anyone who wants to think seriously about how to distinguish reasonable from unreasonable gun laws.
Determining whether a regulation is narrowly tailored . . . is a difficult task. This is where the wisdom embedded within First Amendment law is quite useful. The Supreme Court . . . has already promulgated a feasible approach: if a government restriction results in a substantially adverse effect on the non-target group from effectively asserting their Second Amendment rights, then that restriction would be unreasonable. For example, a trigger lock requirement on a handgun, intended to combat the social harm of accidental firearm use, would most likely have a deleterious effect on an individual’s ability to protect herself effectively against an armed robber. The non-target group, those wanting to exercise their right of self defense, would, for all intents and purposes, be prohibited from effectively acting in self-defense, a constitutionally protected end. Such a requirement would not be narrowly tailored . . . and therefore would be unconstitutional. . . .
The second requirement for a government restriction to not infringe an individual’s right to keep and bear arms, and thus be reasonable, mirrors the third prong of the First Amendment analysis—that any restriction leave open ample alternative channels of communication. This requirement is designed to safeguard against the encroachment on the protected ends of the First Amendment. To ensure that this requirement is satisfied, a law must allow for the continued accomplishment of the constitutionally protected end. The same is true of the Second Amendment. Although it does not expressly protect any specific means, it does protect specific ends. Therefore, as in First Amendment law, a restriction must leave ample means of accomplishing the ends protected by the Second Amendment.
Oh well, congrats on your publication, kid :)
Doesn't matter what anyone thinks it confers or doesn't confer, it is not, as always been held by framers and the court, to be affirmative. The Ninth Amendment says you cannot use it to disparge whatever laws or rights the people themselves elect on the subject.
Would you be able to recommend a good paper on nepotism in the Academy while you're at it?
And another question: What's so distasteful about affirmative disclosure?
That would include a test for competence of anyone licensed to use a firearm, and different grades (handgun, shotgun etc). Registration of firearms. Withdrawal of the license if habitually intoxicated etc.
Criminal offences if a gun is negligently provided voluntarily to someone who commits a crime with it, much as the similar provision of a car would do.
Testing weapons for safety, as in making sure cars are "street legal".
But that's about it. The same principles apply.
Onward to the next battleground.
Right, because of the innately dangerous nature of firearms, government regulation thereof is more easily justified as constitutional. I don't see this as a problem, but:
"This lack of protection in the Second Amendment law should be supplemented by requiring a law be the least intrusive means to achieving the government’s stated end. . . ."
The author seems to feel that the right to bear arms should be as unlimited as the right to free speech, that government interest in public safety makes this a difficult goal to achieve, and that the solution is to limit the government's ability to intervene for public safety reasons when firearms are above. Is it really so difficult to admit that firearms *should* be regulated more carefully, and laws regulating them *should* have a lower bar to constitutionality, than speech?
Except that a person openly wearing an automobile doesn't pose an implicit threat to the people around him.
It is the exact same implicit threat or non-threat. Quit your emotional drivel. You watch too many movies.+
http://www.reason.com/blog/show/127227.html
http://www.reason.com/blog/show/127226.html
Here's how I judge it: If, say, a bank requires that its customers not bring weapons, then it should be liable for the safety of those customers. And not providing armed protection should be seen as criminally negligent in that case. That is, you are requiring people to give up their ability to defend themselves with the implied responsibility that you will defend them. Therefore, if you don't take at least the precaution of armed guards, then you should be held criminally negligent.
Certainly I agree with the commenter on the analogy with automobiles and their regulation. If someone is aiming at you with an automobile, I'm not sure how you can't feel threatened with your life. (Not to mentioned just seeing a teenager driving a car makes me feel threatened)
As for 'Testing weapons for safety, as in making sure cars are "street legal"' that happens now in California - there is an 'approved' handguns list. More to the point, man factures have an incentive to make safe reliable firearms to avoid litigation.
I might go along with a 'test for competence' for concealed public carry. Of course, that test should be no more difficult than the lowest (easiest) qualification acceptable for any public/private employee in that state to carry a firearm. (If you have ever spent any time shooting with law enforcement officers - let alone private armed security officers - you would know how meaningless that test would be.)
I, for one, would restrict virtually all speech in the "pubic area." Humming, of course, is perfectly acceptable.
Please instruct your son to carefully proofread before publishing.
Justice Breyer makes the same argument in dissent, and I fear that the court will ultimately adopt it. But I think that it's terribly misguided. If a constitutional right means anything, it means that you have the right to enjoy it nad that the government can't take it away to do the rationale the led to enactment of the right. In other words, the adoption of a right ipso facto disqualifies whatever grounds that its enacters reasonably feared the government would use as justifying its infrigment from being considered "a compelling interest".
The reason the supreme court has upheld time, place, and manner restrictions on the first amendment is because regulations in that field are just to curtail common nuisances which were not the rationales people reasonably feared would be used as a widespread way to effectively abridge the freedom of speech. Courts are well equiped to see if those are targeted at the nuisance involved and do not jeopardize the effective communication of ideas or abridge the chance to persuade others. The same can arguably be said about certain campaign financing restrictions as well, and certainly the court's obscenity and libel precedents have made sure that laws tied to targeting these invaluable forms of expression don't really abridge the freedom the founding generation was trying to protect.
On to the second amendment. It's quite obvious that precisely the core concern of those who rstified the second amendment was that the government would use some kind of public safety rationale to take away people's weapons and jeopardize their ability to protect themselves against tyranny. This must mean that ratification of the second amendment ipso facto means that "public safety" most emphatically does not qualify as a "compelling" interest. Taking the ability of the government away to regulate to take our weapons away to "protect the the public" was exactly what the amendment was supposed to accomplish.
For crying out loud, this proposition is so obvious- can't someone out there talented enough to publish a law review article do something about this to get this point out and available to the justices before it's too late?
Okay, the gov't can outlaw some speech, such as yelling "I HAVE A BOMB!" in an airport. But isn't such speech simply not of the kind protected by the First Amendment -- i.e., it isn't political speech, and it isn't religious speech, etc., or the speaker is knowingly telling a falsehood. In other words, if a Middle-Eastern person reading the Koran in airport produced the same response as a person yelling "I HAS A BOMB", then the gov't still can't ban the Koran, public safety be damned.
Nothing in the constitution suggests a locus of the home for the right to keep and bear arms. (Or for free speech, for that matter). Rights limited to the home, such as the limits on search and seizure, are delineated as such.
Bingo. Precisely my point. And so blatantly obvious that I bleg someone to put it into a prominent law review article before it's too late.
In terms of the kinds of regulations Scalia suggested would likely be upheld in wake of Heller, I would suggest they fall into 4 basic categories. (1) Licensing provisions and regulations pertaining to gun sales: These would be upheld because (or so long as) they don't directly or unduly burden people's ability to keep and bear arms. So long as ordinary citizens can lawfully purchase guns for self-defense, the SCOTUS won't scoff at making them jump through some administrative hoops.
(2) Unusual or dangerous weapons: These simply aren't covered by the 2d Amendment. According to the majority's analysis, the arms referred to by the amendment are those commonly used for self-defense. Regulate away.
(3) Individuals deemed disqualified to keep and bear arms, specifically, felons (because it's always ok to take away their rights) and the mentally ill (because of safety and, perhaps, because they are presumably under someone else's care (or should be) and therefore, like children, have no intrinsic need to defend themselves or their homes.
And (4) "Sensitive" locations, such as schools and courthouses (and I would add AIRPLANES!). These can be justified on the grounds that a private citizen going into a school or a courthouse is extraordinarily unlikely to need a gun for self-defense, and thus any guns carried in to such a place are more likely to be used for offensive rather than defensive purposes. Those who want to restrict gun rights will try to define as many of these "sensitive" zones as possible to make it virtually impossible to get from the house to the supermarket without passing through one, and thus keep the guns confined to people's homes.
Because each of these categories of restrictions is based on a distinct set of rationales, I don't think it's necessarily helpful to try to craft a single, general test to determine if a given regulation is or is not constitutional. It's similar to First Amendment law, where there are an assortment of recognized exceptions, each with its own body of supporting case law.
I don't have a great problem with this thinking...as long as the government is required to show a public safety interest, rather than merely asserting one. This is a pretty high bar for the government to clear, as most of the government's rationalizations for infringing the RTKBA have been shown to be bunkum. None of the places that have passed "shall issue CCW" laws have seen "streets running red with blood", yet the prediction is still breathlessly made every time such a law is proposed. It looks to still be persuasive to 4 of the Supremes.
In coming up with a standard of review, the Court will undoubtedly rely to a great extent on such scholarship. I encourage lawyers, law profs, law students, and all others with the ability and interest to contribute to the body of scholarship to be relied upon in resolving issues of standard of review and incorporation.
No doubt:
"His words wounded me." vs. "His shots wounded me." I.e., Anyone ever heard of someone suffering a life-threatening insult?
No, seriously, I do. If there's a relationship here that prompted the recommendation, it's a bit dishonest to not even mention it in passing.
I still think one of the most interesting areas will be challenges based on interstate commerce. I want to drive from Virginia to Maryland through DC with my loaded gun in my trunk.
You've obviously never ridden a motorcycle in traffic.
You presume much about the competence of others who carry, and about the law regarding use of deadly force. In my state, a bank robber waiving a gun at a teller doesn't allow me to start shooting.
The licenses for cars are both very, very inexpensive compared to the cost of an average car, and simple enough that the average high school kid -- most of which are barely able to follow their state's laws -- can and does get the license by the age of seventeen. In most states, the cost of the license testing is subsidized heavily by the state. That license is good across the entire damned country. Someone from Bugscuffle, Texas and their incredibly strict rules can lawfully drive in New York City.
You drive without a license, and we're talking a traffic citation. I think doing so in Ohio costs less than simply getting a CCW in the first place.
Oh, and there is still no Bill of Right stating that the right to keep and bear cars.
Yeah... I live in Ohio, right now. The cost of a CCW license -- the one that touches what people are advocating for simple gun ownership -- includes between 150 and 200 USD, a passport photo, being fingerprinted like a common criminal, between 8 and 10 hours of my time on a weekday, and the surrender of several fourth amendment rights. After that's a reasonably long wait, in my case probably about a month.
I don't have a CCW, even though I want to, and until September a CCW is the only reasonable way to carry thanks to our vehicle carry laws.
Is that an undue burden? Is it a direct burden? It seem to be about equal to what the DC government's trying now just for ownership.
At what point is a licensing scheme a direct or undue burden? Every single gun licensing scheme I've run into tends to be capricious and arbitrary, often biased against those who work for the military (a TS/SCI will slow down background checks, often by days, as will having moved from out-of-town).
Let's make this clear: an individual with a car pointed at you has between twelve hundred pounds and several tons of metal pointed at you, capable of some pretty remarkably acceleration.
I think your bias is showing.
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In the scheme of things, an imperative to use force for self defense is itself extraordinarily unlikely. But your impression (that a gun "there" is likely to be for offensive use) is colored by the fact that's it's ILLEGAL to have a gun there for defensive use.
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Schools in Israel are defended by firearms, to deter those who would use offensive force, and to stop those who aren't deterred. See Beslan, Virginia State and Columbine for the resounding failure in policy, where defensive possession is illegal and punished harshly.
David G. Browne, Treating the Pen and the Sword as Constitutional Equals: How and Why the Supreme Court Should Apply its First Amendment Expertise to the Great Second Amendment Debate, 44 WM. &MARY L. REV. 2287 (2003)
Forgive the term subject as opposed to people but living here in England I know.
Now to a specific criticism I see some are trying to equate our BoR clause "as allowed by law" with statute, this is bogus, it refers to the common law; where in we have the right to life, we have the right to self defence, there fore we have the right to arms.
Should be the end of it all, but in order to maintain a dictatorship gun control is essential. We certainly have plenty of that over here.
How everything can be argued around in circles it just never ever seems to end...........
Anyhow congratulations I guess it is progress of sorts, now if we can just get rid of standing armies and go back to farming and barter (no money, gold, or silver)........Oh, I can dream. Without taxation armies can not be paid to go and fight those guys over there, and government can not exist without (made up) enemies.........
Sometimes I dream out loud.
wuzzagrunt,I like the concept, but who's going to enforce the distinction against the government? If the only answer is "throw the bums out at the next election", then I predict no significant benefit would actually result.
ClosetLibertarian,
What would the point of that be? If it's in the trunk, it might as well be unloaded or disassembled. Now wanting to drive from VA to MD via CD with your loaded handgun in your holster, that would be of some plausible benefit to you.
Aultimer,
No, darelf looks at the actual experience of shall-issue states (including, notably, my home state of WA which has absolutely no training requirement—you can be issued a CPL without ever having seen a handgun, much less touched or fired one), noted the relative absence of problems vis-a-vis states with more restrictive environments, and drawn the obvious conclusion.
I was just trying to take it one step at a time until I can mount a 50 on my hood.
Except in the ultimate irony for this decision on Wednesday in Kentucky a young man who apparently had a perfectly legal .45 in his car got in an argument with his boss, over all things whether or not he should be wearing his safety glasses, went out to his car, got his legal handgun, and killed his boss, four other coworkers, injured another and killed himself.
Now I am sure you all will respond that the solution to this problem would have been more guns in the hands of the employees.
I would argue (as a practical policy matter, not a matter of constitutional dimension) that although carrying a firearm inside a courthouse is not a particularly compelling need in light of the screening and security, carrying one to and from court IS advisable in many cases. Both I and many other attorneys have been threatened by litigants right outside the courthouse. I'm sure many non-attorneys have had issues as well.
http://town.princeton.ma.us/Police/firearm.html
There is a $100 fee, licensing and fingerprinting, and required training. Half the fee goes to pay for licensing and the other half goes to the general fund, making it a tax.
Can fingerprinting survive as a reasonable regulation? If I understand the decision, a theoretical public safety benefit is not enough. Has the argument shifted from "prove this regulation doesn't work" to "prove this regulation works"?
No, we would point to the deleterious unintended consequences of workplace safety regulations...
Of course. When someone starts trying to kill me or someone I care about, if my two choices are 1) Citing to JF Thomas' belief that guns are bad; or 2) getting out my pocket .38 and shooting the murder--I like option number two a heck of a lot more, and I suspect number two will work better.
Interestingly, here in WA counties are required by state law to provide firearm storage for people entering the gun-free areas of the courthouse. I didn't in fact carry last summer when I was on jury duty, but only because the lineup for the metal detectors going in was slow enough already, without adding all the extra time to stow a handgun.
The federal courthouses here in Seattle and Tacoma do the same, except the facility is only provided to law enforcement, not the general population.
Rrrrright... because, as we all know, no one is ever in any danger of a madman showing up at a school or in a courthouse and just randomly killing people.
What use are non-dangerous weapons in repelling invasions or overthrowing tyrants? As Respondent has pointed out, allowing restrictions on "dangerous" weapons kind of misses the primary point of the Second Amendment. As the majority opinion in Heller explains, the scope of the Second Amendment is not defined by its prefatory clause, but that prefatory clause does shed light on the core purpose of the amendment: to ensure that the militia, composed of the body of the people, has real teeth.
Ah yes, the old Loophole Loophole. Anytime a Bad Thing occurs, it can be assumed to be the result of that most dangerous of all creatures (the ordinary citizen) having too much freedom. The obvious answer is to continue to limit freedom until Bad Things are stamped out forever.
The proposed schemes would remove your vocal cords.
Except that these "kinds" of speech are a creation of the judiciary - no where in the admendment does it specify fighting words, etc. It is circular reasoning to say that the judiciary is right to treat different "kinds" of speech differently because the judiciary divided speech into categories... in order to treat them differently!
Respondant makes an excellent counter to Tyrant King Porn Dragon's claim that the "public safety" rationale should lead to heavily restricted gun rights by pointing out that the purpose for having an amendment is so that the government cannot just declare a compelling interest and proceed to enact heavily constraining regulation.
I can think of several reasons why a constitutional right to whatever travel methods are currently commonly in use might actually be a good idea, DMV overreach being one of them.
Although it is perfectly legal for a police office in California to purchase a handgun that is NOT on the "approved, safe" list for his or her own private use, and also perfectly legal for that same police officer to resell the "unapproved, unsafe" handgun to anyone (legally able to purchase a gun) else in the state.
And if you move into the state, you can bring your "unapproved, unsafe" handguns with you -- and then resell them to other Californians.
The one thing the approved handgun list does is limit supply and drive up prices for handguns in California. Take a look at the prices for "unapproved" handguns that are legally in the California market compared to what the same firearm would fetch in any other state. What the list doesn't do is ensure that handguns are "safe."
This is why, when I refer to related ideas, I prefer the term "extraordinarily destructive" weapons.
What regulations are reasonable?
Licensing, per se, is not reasonable. Many people like to bring up the automobile analogy when discussing licensing. There is no enumerated Constitutional right to keep and operate motor vehicles. The analogy is not appropriate.
I will generally accept no infringement on carry, concealed or no.
As far as "sensitive" places, this is another glaring difficulty with Scalia's reasoning. There is simply no reason why a law-abiding majority age person who is not otherwise disqualified should be barred from carrying in a school, whether it be a college campus or a day-care center. The courts are another matter entirely. The courtroom is a zone of confrontation where tempers are likely to run hot, with lower inhibitions against violence as a result. Keep guns out of the courthouse and most government buildings.
Yes, airplanes (but not airports) should be considered "sensitive" places. There's simply no need to have an airplane fall out of the sky because of unintended damage to the aircraft's systems in the event of a discharge. But then, we need more Air Marshals. With the coming reduction in air travel, I doubt this will pose a great problem to society.
Types of weapons? Here's where I tend to deviate quite a lot from the average writer on the subject. Let's go back to my term, "extraordinarily destructive" weapons. It is easier to define what they are not, rather than what they are. I would exclude from this category all conventional firearms, be they handguns or long arms, and even include short-barreled shotguns.
Above this, selective fire weapons, explosives, and larger weapons need to be strictly regulated. There should be no outright prohibition on them, but the government does clearly have a compelling public safety interest in making sure that their possession does not pose a threat. Hence the gunpowder storage laws that the opinions reference.
The Lautenberg Amendment is a travesty, and should be overturned at once.
Oh, and BTW, you can't prosecute someone for yelling, "I have a bomb!" if they actually *have* a bomb. If they don't have a bomb, you can prosecute for the statement, but if they *do* have a bomb, you can only prosecute for the effects of the statement. Ironic, isn't it?
Of course, nobody would think that suggesting licensing writers and reporters is a reasonable restriction.
Just as gun licensing or registration is an unreasonable restriction.
And the car analogy won't hunt. There is no right to drive a car. It is a privilege.
Except that it is possible to look at the history of the First Amendment and see that freedom of political speech is the core concern that led to its adoption. Political speech is, in a very real sense, at the "heart" of the First Amendment. It is very difficult to look at the history of the Second Amendment and the concerns that led to its adoption and conclude that the government should be able to withhold the standard weapon of an ordinary infantryman (an assault rifle, and I don't mean the media-defined semiautomatic kind) from "the people" (with whatever meaning that term has in the Second Amendment).
When the amendment was written, that would be a flintlock. And as we all know, flintlocks were immediately banned after the constitution took effect...
For this reason, I don't think this is a great decision for gun enthusiasts who want the freedom to purchase all manner of firearms not necessarily for self-defense but because they like guns. However, for those people, there is always the possibility that legislatures will allow you that freedom even if the SCOTUS doesn't recognize it as a constitutional right.
The last time that was true was when our soldiers carried the M1 Garand rifle and M1911 pistol.
I propose we return to established American tradition and allow private citizens to own the same rifle and pistol - whatever that might be at the time - issued to our soldiers.
It does seem like that's what he's talking about, doesn't it? Which is strange, because his historical analysis makes it pretty clear that the immediate purpose of the Second Amendment was not to enable individual self-defense but to preserve the efficacy of the general militia in order to 1) repel invasions and suppress insurrections, 2) make reliance on a standing army or "select militia" for these purposes unnecessary, and 3) resist tyranny. Guns "having firepower or characteristics that go beyond what is commonly perceived to be necessary for self- or home-defense" are clearly useful for these purposes.
A dangerous weapon is one that in the hands of an average citizen is likely to cause injury to someone other than the intended target of the weapon.
Thus hand grenades, sawed-off shotguns, fully automatic weapons, bazookas, etc. would classify as dangerous weapons.
This standard would leave open the possible legality of weapons with a burst setting similar to the m-16a2 since burst settings (at least on rifles) are not significantly more dangerous to a bystander than a single shot weapon.
This line of reasoning also opens up the question of the legality of laser sight and vertical fore-grip bans.
Since these accessories make a weapon more accurate they actually make a weapon less dangerous to the innocent bystander.
If you drive the car on your property and respect noise and pollution laws and don't endanger the safety of your neighbors, I think you may have "a right to drive".
That sounds like a workable definition. Not sure how much historical grounding it has, but it would have the effect of keeping
Potential problem: in a city, anything that can penetrate multiple walls would qualify. Maybe that would necessitate pre-fragmented ammo?
And wouldn't your rule restrict police armament as well?
"I.e., Anyone ever heard of someone suffering a life-threatening insult?"
Salman Rushdie
Gert Wilders
Several Dutch newspaper publishers
From a legal perspective, driving is not a right. Else it would be a LOT harder for the DMV to take away or restrict the right.
1. NJ is in the midst of banning muzzleloading firearms like the technologically advanced Brown Bess and Sharps.
2. It's funny that the Bill of Rights seems, in the hands of lawyers, to mutate into the Bill of Maybe Rights on a Good Day and if You're Lucky.
3. It's past time to start impeaching and removing justices from the SCOTUS.
Suitable regulations? I would require using ammunition in use by the military within the last 100 years. .45/70, .30 Krag, .30/06, 7.62x54R, 7.62x39, 7.62mm x 51, .50BMG, 5.56mm x45 have all be issued to US soldiers for rifles, .38 Special, .45 Colt, .45ACP, 9mmx19 Parabellum have all been issued to US soldiers for pistols.
Protected crew served weapons should include:
81mm Mortar, 4.2 mortar, 120mm mortar, 60mm mortar, light and medium machineguns of above calibers, 105, 155, 175 and 203mm howitzer and guns.
12 gauge (18mm x 76) shotguns deserve special protection despite Miller, since sawed off shotguns were used in WWI as "trench brooms", and are now used to blow out locks in Iraq. Alas, since Miller had died, no defense was presented, and the Justices noted that in their opinion "in the absense of judicial notice..." suggesting that if judicial notice was provided that Organized Militia (National Guard) soldiers use of sawed off shotguns would provide grounds to overturn.
I disagree with your classification of select-fire weapons as extraordinarily destructive. Full-auto only means you don't have to wiggle your finger as much. The potential for extraordinary destruction is exactly the same as that of the semi-auto equivalent. It's not going to destroy everything within a multiple mile radius like a personal nuke.
How would you classify firearm sound suppressors, aka silencers?
Exactly. Being that I live in a multi unit building in Chicago I think that would be a completely reasonable control.
If someone wanted to keep hunting or ball ammo in their condo they may have to apply for an permit.
My danger test might also effect the legality of bans on hollow points and pre-fragmented.
They are more likely to kill a target but are less likely to kill a bystander and are thus less dangerous than regular ammo.
Thank goodness for home schools.
The DMV can take a way your privilege to drive a car on the public way but can not take your right to drive it on private property.
The OP asserted that "ubiquitous gun possession" would improve public safety. There's simply no logic or data that says the "obvious conclusion" of moving along the spectrum from (1) restrictive rights to (2) shall issue right to (3) ubiquitous gun possession is increased safety.
Or are you seriously asserting that every shall-issue state has ubiquitous gun possession? That can be disproved.
Thanks for the Friday afternoon chuckle!
I said that burst rifles* are probably OK.
*Burst handguns would be too inaccurate and would endanger bystanders.
Full-auto in the hands of the untrained is definitely more dangerous to those near the intended target then a semi or burst weapon. It increases the likelihood of spray and pray and decreases the likelihood of aimed fire.
They would likely remain restricted for a couple reasons:
1) In the vast majority of self-defense scenarios I would reckon loud is much more advantageous then suppressed. While one can fantasize about self-defence situations where having a suppressed weapon would be advantageous these situations are very unlikely outside of Hollywood.
2) They are not commonly used by infantry. They are a specialty item used by spec-ops for capture, assassination, and hostage rescue.
3) Having unrestricted access to suppressors would more likely assist criminals than the average citizen.
Then what you are describing is a general property right, not a right to cars per se.
That is not the experience of places where suppressors are legal and widely used by shooters, like Finland and New Zealand.
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It's pretty easy to elevate the label to "dangerous weapon." Why not go for WMD?
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Back on Feb 12, the Senate passed an amendment to FISA S.Amdt.3938, that attached the label "Weapon of Mass Destruction" to:
Usually, I'd leave it to the reader to click the link for the punchline, but I'm going to lay this one out. These, according to the United States Senate, could be Weapons of Mass Destruction:
You may be right, but I think you're being unrealistic if you think the Heller majority is going to anxious to substitute its own legislative judgment for that of Congress or a state legislature in determining how much firepower is enough for reasonable self-defense. Again, the Scalia decision defines the 2A right by reference to the types of firearms Americans commonly rely upon for self defense. Specifically, that means ordinary handguns, rifles, and presumably shotguns. Automatic weapons, machine guns, and more exotic fare may be weapons of choice for some smaller subset of the population, but the majority apparently does not think the 2A right extends to these kinds of arms and therefore Americans' right to keep them will be dependent upon political institutions.
Then bring up voting. You have to register in order to exercise your constituional right to vote. It's not that big a deal. Obviously, if we accept (and Scalia does) that felons and the mentally ill can be denied the right to bear arms, then some sort of licensing is needed in order to mechanically screen them from purchasing guns.
I had always thought the objection to licensing or registration is that it could lead to and outright ban. Insofar as Heller commands that the govt can take away people's guns, then the "slippery slope" argument against registration and licensing loses its persuasive value.
I would tend to agree with you that the right to carry a gun outside the home is fairly central, and should in no way be treated as an exception to the 2A right. Conceal is a closer call. I suppose the analysis ought to be, does a requirement that the gun be carried openly really devalue the right to carry a gun? I would think a state that enacted a prohibition against carrying concealed weapons could come up with a reasonable policy justification.
I think there's a big difference between a college campus and a daycare center. College students are adults. I would definitely agree that any attempt to designate a college campus as a "sensitive" gun-free zone ought to be rejected.
As for daycare centers, first of all, they are usually private businesses. As such, they ought to be able to set their own rules on whether or not to allow guns. However, if a state passed a law or regulation banning guns from daycare centers, and a daycare center objected, I tend to think the prohibition would be upheld, at least insofar as they would keep guns out of rooms that are swarming with 3-year-olds.
Airplanes present an example of where the government can argue that effective security is already being provided (through passenger screening and air marshalls), and therefore there is no need for self-defense comparable to the need that exists out in the real world.
"Biographical Information
Barnett is married to Beth Barnett and they have one son and one daughter. His son Gary Barnett attends Georgetown University Law Center. His daughter Laura Barnett is currently living in Washington, D.C. and works for the Institute for Humane Studies. He also teaches a Contracts course to first year students at Georgetown University Law Center."
This would cover, I believe:
1. School children (they can't handle guns themselves so they rely on the school to make self-defense unnecessary);
2. Airline pilots even if they can handle a weapon, it's asking a lot of them to fend off an attacker AND keep the plane aloft at the same time).
3. Judges/witnesses/juries lawyers in the courtroom setting (they can't do their jobs effectively in the search for truth and justice if they have to worry about the guy in the back row who may be packing heat).
Regardless of how you feel about guns, it is indisputable that their presence in a given environment increases the POTENTIAL for violence or intimidation in comparison to an environment in which there are no guns. That's fine, but in a situation where the person to whom the potential violence or intimidation would be directed either has no ability to confront the gunman on equal terms (e.g., schoolchildren) or, even if they can, can't do so while simultaneously performing a necessary public good (e.g., land an aircraft), the right to bring a gun into that particular environment must yield.
Then what we're running into is the difference between the questions "what gun regulations are reasonable?" (the subject of this thread) and "what gun regulations are likely to be upheld as reasonable by the Supreme Court as currently constituted?" I admit that I've been focusing on the former question.
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Scratch judges from that list. Many of them pack heat. They have the right to, in any event.
Not really. Licensing schemes are no more effective than the check systems they rely on, and in this day and age, those check systems can and often are nearly instantaneous for the average user.
Since there's a minimal chance of forgery for a government-controlled check system, it seems like the relatively easy-to-forge licensing is not particularly efficient method of applying this goal.
Given that many of them are formerly military pilots who are trained in the use of firearms and often carried them on duty, implying they cannot handle using them if they so choose might just be a touch condescending.
As for 'asking a lot of them', you seem to have no problem asking them to try and resist a takeover WITHOUT a gun, so pardon me if I fond your concern for their welfare rather selective. Unless "designated victim" is the only role you will allow them to play in an attack?
Autopilot isn't perfect, but pardon me if I theorize it might keep the plane from spiraling into the ocean for a few minutes while the crisis is occurring.
To revisit the language of the M'Culloch decision, (with appropriate revisions) "All the [rights of the people] are to be executed in the states, and throughout the states; and if the state legislatures can tax the instruments by which those [rights] are executed, they may entirely defeat the execution of the [rights]. . . . If they may tax to one degree, they may tax to any degree; and nothing but their own discretion can impose a limit upon this exercise of their authority."
Yeah, but Miller is no longer the Supreme Court's last word on the subject, Heller is. And Heller seems to indicate that what's important is not the military usefulness of the weapon (which is what I thought Miller focused on) but whether the weapon is in common civilian use. Go figure.
Unfortunately, she was dissenting (so you'll have to scroll down to see her opinion). But I've always had a special affection for her and her reasoning after seeing her opinion there.
Just think of all those perfectly good M-14's chopped up. :-(
Whadonna More,
Actually, it never occurred to me that "ubiquitous" might not be hyperbole.
To my mind, this is tantamount to the same thinking that pervades the gun control lobby. At issue is not whether people other than the wielder feel safe knowing there are weapons around, the issue is whether or not a law-abiding citizen has the right to be armed.
This is why the schools argument doesn't hold much water with me. There is nothing special about children being present. If that were the case, we would have to ban carrying in the presence of children, everywhere.
"Sensitive" places should be limited to those places where *any* discharge of a firearm, intentional or no, might place everyone in that environment in grave and material danger (such as in an aircraft), or in places like courtrooms or government offices where the potential for confrontation is high and may lead to lowered inhibitions against the use of violence.
It is possible that other "sensitive" places could be contemplated, but I take serious issue with the inclusion of schools in the majority opinion. It is already illegal to shoot a child, so why do we need to disarm law-abiding adults in a school? Suppose I'm there to pick up my daughter and some deranged maniac decides to take a classroom hostage? Do you really think he's going to stop just because guns have been banned from such a "sensitive place"? Note that the lack of a ban would not necessarily absolve me of liability for my actions if I decided to attempt to put a stop to said maniac.
I disagree with your classification of select-fire weapons as extraordinarily destructive. Full-auto only means you don't have to wiggle your finger as much. The potential for extraordinary destruction is exactly the same as that of the semi-auto equivalent. It's not going to destroy everything within a multiple mile radius like a personal nuke.
How would you classify firearm sound suppressors, aka silencers?
I admit, selective fire weapons would definitely fall at the lower end of the danger scale, but they are in many instances far more destructive than non-selective weapons, and furthermore, have very limited tactical applications. For this reason, they should be restricted, but not banned.
WMDs, of course, rank right at the top. It is difficult to make the case (but not impossible) for not prohibiting WMDs outright. Like any other area effect weapon, you would have to provide appropriate security to prevent theft, tampering, or misuse, and ensure that accidental discharge did not affect your neighbors (pretty tough with a thermonuclear device), at a bare minimum.
Suppressors? I would treat them the same way I would treat any weapon. Legal to possess and use, heavy penalty for their use in conjunction with the commission of a crime. They are very useful in hunting, because it helps in not disturbing other game too much.
Kirk: I never proclaimed that schools have been successful in protecting students from gun massacres. Obviously they haven't. As a policy choice, I would be open to allowing school employees to have guns. The issue I'm addressing is whether, in the wake of Heller, courts would uphold restrictions prohibiting guns in schools, and, if so, on what basis. As I said, it would not necessarily be my choice, but it seems probable to me that courts WILL uphold those kinds of restrictions; Scalia essentially said so by including schools in his conception of "sensitive" areas. If that's the case, then presumably there needs to be a stated rationale for classifying an area as "sensitive." I've posited that courts could define "sensitive" areas, at least in part, by looking at whether the people inside are capable of defending themselves. I'm not saying courts or legislators will decide these issues correctly, and please don't blame me if they don't. I'm just trying to anticipate how they might go about dealing with these issues.
If you think schools are safe, you should visit Mrs. Smokey's gang-banger school, where she is the Principal. Not a year goes by that a gun isn't found on campus, and knives are discovered monthly, even though the kid possessing them gets expelled [actually, the kid is just sent to another school, which then sends their badboys to her school -- government educrats being addicted to the money paid for every warm seat].
You say:For those who believe [notice I didn't say 'think'] that civilian possession of weapons will result in carnage, look at Israel.
See the point? Most responsible citizens should carry weapons. Society would be ever so much more polite.
Look at how far down the wrong path we've gone: San Francisco D.A. Kamela Harris refused to file charges against an illegal alien who was caught recently in possession of a gun. That illegal was just now arrested for murdering a father and his two grown sons, who were driving home from a picnic. And the same gun had been used in two more recent murders. Criminals don't even get arrested for possession of handguns. Do you think you would be treated as leniently as an illegal alien gun toting gang member in S.F.?
The central problem is that honest citizens can not protect themselves and their families -- but illegals caught with guns are not deported, or even arrested by the D.A. -- and Mayor Gavin Newsom hides out from the media [which covers for him with the sound of *crickets*], instead of showing some leadership.
And our pistol-packin' senator, Diane Feinstein, comments on Keller: "I believe the people of this great country will be less safe because of it." Well, DiFi will be pretty safe. She's the only person in S.F. allowed a concealed carry permit.
I'm not trying to single out BD in particular. But this is where gun control leads. Criminals pack, and unarmed citizens get whacked.
You seem to have tagged me as some kind of gun control advocate. I'm not. In fact, I agree with just about every word of your post. I'm just addressing the question posed by the OP: how will Heller affect the constituionality of other gun laws?
Actually, I think the question posed by the OP is how the courts ought to distinguish between reasonable and unreasonable gun laws, generally. The bulk of the post, after all, is from a pre-Heller law review article, which obviously doesn't take into account the balance of power on the Heller court in its analysis.
The only way this:could possibly begin to make sense if it meant that the state implemented comprehensive, highly effective methods to defend those persons. Instead, what we get are meaningless symbolic bans, leaving the poor defenseless as sitting ducks.