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The Right To Keep and Bear Arms in Self-Defense and Waiting Periods:

In this post and the next two on this chain, I continue blogging excerpts from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, which is forthcoming in a few months from the UCLA Law Review. But I particularly focus on analogies between the right to keep and bear arms and other constitutional rights, when it comes to waiting periods, taxes and fees, and government tracking regulations. Such analogies are often drawn, but usually between the right to bear arms and just one other right. I try to avoid cherry-picking my favorite rights to compare with, and instead look to how courts have dealt with similar questions as to a wide range of rights, including free speech, voting, abortion, and property rights.

As I had mentioned, the article is quite long, so I thought I’d just blog some excerpts; if you’re interested in the broader framework the article discusses (a framework that separates the inquiry into the scope of the right based on its text, original meaning, and history, the burden that the restriction imposes on the right, the reducing-danger arguments for the restriction, and the government’s proprietary role [if that’s present]), please follow the link. Also, please remember: Not all unwise laws are unconstitutional laws, even where constitutional rights are potentially involved.

* * *

Some jurisdictions require a “cooling-off” period before a gun may be delivered to the purchaser. Others apply this only to handguns. The rationale for such laws is to prevent impulsive killings or suicides by people who are angry or despondent and who might calm down after a few days.

It’s hard to see how handgun-only cooling-off periods will materially reduce danger of impulsive crime or injury. It’s as easy to commit suicide with a shotgun as with a handgun, and for a crime of passion a shotgun will often be equally effective, too. Though it’s not as concealable as a handgun, and thus is worse for daily carrying or for inconspicuously hanging around waiting for passersby to rob, it should be quite sufficient for a crime of passion, where it can be concealed briefly under a coat or in a bag. All-gun waiting periods might in principle be effective, if the buyer is an otherwise law-abiding citizen who wouldn’t just turn to the black market instead. But even that has not been proven: As with so many “reducing danger” arguments, the social science evidence on the effectiveness of cooling-off periods is inconclusive.

At least one state, Maryland, requires an extra background check before a gun can be picked up, and imposes a seven-day waiting period for that reason. The federal background check is generally instant, but can take several days to complete if someone with the same name as the applicant is on the prohibited list.

Finally, Illinois, Massachusetts, New Jersey, New York, and North Carolina apparently require up to a month, or in New York’s case up to six months, for a handgun purchase permit (or, in New Jersey, any firearm purchase permit) to be cleared. Other states require from two to fifteen days.

Are these waiting periods substantial burdens on self-defense (and therefore, under the framework my article proposes, presumptively unconstitutional)? In one way, they are: A person covered by the waiting period is entirely unable to defend himself for days, weeks, or (in New York) months. An attack that requires self-defense can happen during the waiting period just as easily as it can happen during other times.

Moreover, in some situations, the attack may be especially likely during the waiting period: A person’s attempt to buy a gun may be prompted by a specific threat, a threat which could turn into an actual attack in a matter of days or hours. If a woman leaves an abusive husband or boyfriend, who threatens to kill her for leaving, she may need a gun right away, not 10 days later or 6 months later.

On the other hand, it is certainly the case that being disarmed for 0.1 percent of one’s remaining life (that’s what 14 days ends up approximately being, for a person of average age) is less of a burden than being disarmed altogether. And waiting periods have been found to be constitutionally permissible as to other rights.

I can’t offer here a clear answer to whether waiting periods are unconstitutional, but I thought I would at least sketch out the analogy to other rights. The Supreme Court has upheld -- over heated dissent -- a 24-hour waiting period for abortions, justified by much the same cooling-off concerns mentioned above. A short-lived Ninth Circuit decision that recognized a right to assisted suicide said that “reasonable, though short, waiting periods to prevent rash decisions” would be constitutional, and the Oregon assisted suicide statute indeed provides a 15-day waiting period. A waiting period is often required for sterilization, though there might well be a constitutional right to undergo sterilization as part of one’s right to control one’s procreation. In many states it takes from one to five days to get a marriage license, though I know of no cases considering whether this violates the right to marry. On the other hand, there are limits: Even where prisoners and military members are involved -- a context where the government generally has very broad authority -- lower courts have struck down six-month and one-year waiting periods before a soldier or an inmate may marry.

The Supreme Court has also held that a state may require people to register to vote fifty days before the election, for much the same investigatory reasons that are offered for some background-check-based waiting periods. Cities are generally allowed to require that demonstration and parade permit applications be filed some days in advance, though lower courts have suggested the upper bound might be three or four days. Lower courts have also suggested that permit requirements would be impermissible for groups of a few people, who don’t materially implicate the city’s interests in traffic control or adequate policing.

And lower courts have also suggested that even if some substantial advance notice may normally be required for demonstration permits, there has to be a special exception for spontaneous expression occasioned by breaking events. This would suggest that a similar exception might have to be required for handgun permits when the applicant can point to a specific, recently occurring threat -- such as the applicant’s leaving an abusive boyfriend who threatened to kill her if she left. (Cf., e.g., Fla. Stat. Ann. § 790.33(2)(d)(6) (West 2007) (exempting from the waiting period, which would normally be up to 3 days, “[a]ny individual who has been threatened or whose family has been threatened with death or bodily injury, provided the individual may lawfully possess a firearm and provided such threat has been duly reported to local law enforcement”); Minn. Stat. Ann. § 624.7132 subdiv. 4 (West 2003) (providing that “the chief of police or sheriff may waive all or a portion of the five business day waiting period in writing if the chief of police or sheriff finds that the transferee requires access to a pistol or semiautomatic military-style assault weapon because of a threat to the life of the transferee or of any member of the household of the transferee”); Ohio Rev. Code Ann. § 2923.1213 (providing for temporary emergency license to carry a concealed weapon when the applicant provides a sworn statement “that the [applicant] has reasonable cause to fear a criminal attack upon the person or a member of the person’s family, such as would justify a prudent person in going armed,” or other evidence of such a threat); cf. 18 U.S.C. § 922(s)(1)(B) (exempting transferees from the waiting period for gun purchases if they stated that they “require[ ] access to a handgun because of a threat to the life of the transferee or any member of the households of the transferee”; this was in effect during the pre-instant-background check era, see 18 U.S.C. § 922(t)).)

These other constitutional rights are not perfect analogies. A three-day delay in voting, marrying, or demonstrating won’t leave you unprotected against a deadly attack. Conversely, erroneously authorizing someone to vote when he’s a convicted felon is less likely to cause serious harm than erroneously authorizing someone to buy a gun when he’s a convicted felon but the instant background check has yielded an inconclusive result. Nonetheless, this catalog of decisions at least suggests that (1) waiting periods on the exercise of constitutional rights need not always be seen as unconstitutional, and (2) courts are and should be willing to decide which waiting periods are excessive.

Clayton E. Cramer (mail) (www):
Part of why California has a waiting period on all gun sales was that previously, the waiting period was only on handguns (15 days). Then an incident took place in Sacramento while the legislature was in session. A man was served divorce papers, went out and bought a shotgun, went to his wife's place of business, and shot her to death--all in about an hour.

Would a waiting period have prevented that crime? It's hard to say. Maybe. But the reverse is a problem with waiting periods, too. A friend was warned, as required by California law, that a mental patient with gang ties was about to be released, and that she had been threatening his life to the psychiatrist. The waiting period prevented him from buying a handgun, and he had a number of very nervous days, unsure if this cocaine-crazed mental patient was going to show up and kill him.
4.8.2009 9:43am
LarryM (mail):
My own fellings about the wisdsom of these laws is mixed, but in terms of the first comment, the contrast between dead wife and nervous friend is rather striking. Though clearly an argument from only two examples isn't of much value, whatever conclusion it supports.
4.8.2009 9:53am
PeterM:
Massachusetts has no waiting period, per se. The CLEO of your city/town has 40 days to approve or deny your license -- not that anyone is ever called on exceeding that period. Once licensed, you can get a handgun/rifle/shotgun in as long as it takes to fill out the paperwork and go through the Brady check. Alas, getting the license is the hard part, requiring an approved training course ($100 and up), paying a fee ($100) and waiting for an appointment with whomever in the department handles the applications. Not to mention the restrictions that can be arbitrarily placed on your license (converting a "license to carry firearms" into something that doesn't allow you to... carry a firearm). And you can be denied for any particular reason, as it's discretionary. Only one type of license isn't discretionary, and it only allows rifles/shotguns of less than 10/5 rounds capacity, respectively.

And you need the license for mere possession of any kind of firearm, ammunition, chemical defense spray or ammunition component (primers, etc).
4.8.2009 10:02am
PubliusFL:
Conversely, erroneously authorizing someone to vote when he's a convicted felon is less likely to cause serious harm than erroneously authorizing someone to buy a gun when he's a convicted felon but the instant background check has yielded an inconclusive result.

Assuming you're dealing with the kind of convicted felon who's planning on committing a violent crime with a gun, but upon failing a background check says: "Aw shucks! Well, if that's the law, that's the law!" And then abandons his nefarious plans to sin no more. The relative harm is less clear if a convicted felon is likely to acquire the tools of his trade by illegal means if held up by a background check. The Brady Law has been in effect for a long time, and somehow there are still lots of convicted felons packing heat out there.
4.8.2009 10:29am
Houston Lawyer:
After taking the mandatory training course, which is 10 hours long, I submitted my application last month for a concealed carry permit. I am told that it will take approximately 6 months to process. That's twice as long as it took to grade my bar exam.
4.8.2009 10:35am
Daniel San:
The domestic dispute "my ex-lover threatened me" exception is a bit problematic. In a heated domestic dispute in which threats are made, it is not unusual that they be made by both parties. (Anyone who deals with domestic violence knows that there is often a bonus in being the first to call the police or the first to get to the courthouse asking for an emergency order of protection).

If each party can say "I was threatened in a domestic dispute", does each therefore get a waiver of the waiting period? This does not seem to improve the situation. Yes, angry men sometimes shoot their girlfriends, but if someone tells me "I was just in a nasty domestic dispute and now I want a gun", this does not ordinarily cause me to think the world will be safer if they now get that gun (especially since they are probably untrained in proper handling and use).
4.8.2009 10:40am
Dilan Esper (mail) (www):
Another example is county of riverside v. Mcglaughlin, upholding a 48 hour wait before a magistrate's hearing after an arrest.
4.8.2009 10:41am
djung:
I feel obliged to point out that any benefits of a cooling-off period really only apply to the first purchase of a firearm. A citizen who already owns a firearm and is a threat to others would simply turn to one of the weapons he already owns rather than purchasing another; the cooling-off period thus doesn't apply.

Of course, this also applies to the drawbacks of the waiting period; a current gun-owner is not deprived of his right to be armed by a cooling-off period for further purchases.

For the first-time purchaser of a firearm, though, the government of California is holding his or her arms for the length of the waiting period, holding them helpless against those who would do them harm.

If you cannot own the tools with which to effectively defend yourself, you are being told that you may not defend yourself. A government that would do that has at least become complicit in violent crime. They also invite comparison to regimes that have used this technique to accomplish genocide.
4.8.2009 10:54am
J. Aldridge:
I can't wait for the excerpts touching on the "scope of the right based on its text, original meaning, and history."
4.8.2009 11:01am
NotreDameLawl:
Hey Prof. Volokh, Just wanted to thank you for the entertaining talk yesterday. Seeing you and Blakey talk in the same room was an awesome sight indeed, although it was strange to see Blakey actually agree with someone in public.

(The last "response" by Blakey included him telling the prof he was a liar and had him saying "let me list all of the things you are completely wrong about...")
4.8.2009 11:01am
Dilan Esper (mail) (www):
1 other analogy. Parental notification laws in abortion cases are constitutional as long as they allow for judicial bypass. Why not require a procedure for judicial bypass of the waiting period (or make the police bypass that prof. Volokh cites a constitutional requirement. That seems to solve the problem of emergencies.

Also, it's worth noting that gun buyers have other problems in emergencies. Try finding a gun store that is open in the middle of the night. Exercising your right to a gun would seem to require some planning anyway.
4.8.2009 11:03am
ruuffles (mail) (www):

Try finding a gun store that is open in the middle of the night.

There also may not be one within driving distance, just as some states only have one abortion provider in the entire state.
4.8.2009 11:05am
corneille1640 (mail):

if someone tells me "I was just in a nasty domestic dispute and now I want a gun", this does not ordinarily cause me to think the world will be safer if they now get that gun (especially since they are probably untrained in proper handling and use).

Thanks. I hadn't thought about it from that angle before.
4.8.2009 11:07am
http://volokh.com/?exclude=davidb :
I agree with your conclusions here. However, when considering regulations that might "reasonably" burden or constrain the RKBA, courts should keep the historical context in mind. Firearms, much like minority voting rights, have often been regulated in bad faith.
4.8.2009 11:08am
Clayton E. Cramer (mail) (www):

Also, it's worth noting that gun buyers have other problems in emergencies. Try finding a gun store that is open in the middle of the night. Exercising your right to a gun would seem to require some planning anyway.
Being as we both lived in California, I could not even legally lend my friend a gun at the time (and I had plenty available to me). Where I live now in Idaho, if a friend called me up at 2:00 AM and said, "Someone just tried to break into the house. Could you bring over a shotgun?" I could legally run over with a gun.
4.8.2009 11:22am
pintler:

this does not ordinarily cause me to think the world will be safer if they now get that gun (especially since they are probably untrained in proper handling and use).


After a abusive-husband-shoots-ex incident a few years ago, a nearby sheriff announced that DV victims could apply for an expedited CCW, that he would grant it that day, he would loan them a spare gun from the evidence room, and he would have a deputy take them to the police range for a quick training session. There was a furor, and he dropped the plan. It would have been interesting to see if that policy had a deterrent effect, even if few wives took him up on the offer.


I feel obliged to point out that any benefits of a cooling-off period really only apply to the first purchase of a firearm.


Indeed. Also a few years ago, a suicidal person walked into a local range, rented a gun, and used it on themselves. A few weeks later there was a copycat at another local range. The local ranges wanted to prevent further occurrences without driving away customers, and adopted a policy that you could only rent guns if you either:
a)already had a gun (you had to bring one in to show them)
b)had some evidence of involvement with firearms (CCW, NRA classification card, ...)
c)came with a friend
Those have been sufficient to prevent a recurrence.

Not self defense related, of course, but I would submit it as an example of a policy very narrowly tailored to accomplish the objective with as minimal an impact as possible.
4.8.2009 11:23am
Clayton E. Cramer (mail) (www):

My own fellings about the wisdsom of these laws is mixed, but in terms of the first comment, the contrast between dead wife and nervous friend is rather striking.
The fact is that he had good reason to be afraid. There have been a few well attested examples of people killed while waiting for the national five day waiting period on a handgun purchase to finish. Is this common? Probably not, since most Americans either own a gun, or live in a state where they can borrow from a friend if they need to. But incidents such as the one that caused California to adopt a waiting period on all firearms (with such a short interval between aggravation and murder) are also probably pretty rare.
4.8.2009 11:27am
Michael Ejercito (mail) (www):
South v. Maryland states that the police have no duty to protect any individual.

Waiting periods are a bad idea, especially since background checks can be done instantly.
4.8.2009 11:43am
Michael Ejercito (mail) (www):

After a abusive-husband-shoots-ex incident a few years ago, a nearby sheriff announced that DV victims could apply for an expedited CCW, that he would grant it that day, he would loan them a spare gun from the evidence room, and he would have a deputy take them to the police range for a quick training session. There was a furor, and he dropped the plan.

Furor from whom ?
4.8.2009 11:47am
Kirk:
the contrast between dead wife and nervous friend is rather striking.
Far less telling than you think, as it's just as purely speculation that the wife in the inspirational case would not have been harmed by some other means.
4.8.2009 11:56am
PubliusFL:
Michael Ejercito: Furor from whom ?

People who believe guns have bad juju?
4.8.2009 12:01pm
pintler:

People who believe guns have bad juju?


Yes. IIRC (it's been a while), the objections were the usual 'guns never help, only hurt' type of thing.

It is worth noting that there are certainly abused women who are not good candidates for responsible gun use, based on anecdotes from LEO friends. The post Heller world is going to involve some hard choices in that regard.
4.8.2009 12:14pm
James Gibson (mail):
Its interesting to note that when California passed its waiting period laws (both the earlier handgun and then the all gun) the gun control movement was stating that the majority of the firearms used in crime within days of purchase. It was easy then to make that claim since there was so little statistical data to dispute it, and what data did exist was restricted access by the individual law enforcement agency's. Of course once we got all the Brady changes in the 90s, the FBI and ATF actually began compiling records on time to use. Brady expected that this would give them the data to both prove their earlier statements and then show a major reduction in crimes of passion.

Its educational to see that as a result of the publication of this data most Police agency's now talk of time to crime in years not days. In point of fact, of the 13,488 guns traced from California in 2007 only 371 were used within three months in a crime (2.7%). 80% are listed with time to crime of three years or more.

As for a better example for Clayton, the recent murder to hit the news here in Socal is the murder of a CSULB coed by her mission Viejo boyfriend. He strangled her with his bare hands. Its reported that they had a history of disputes and she was not living with him at the time.
4.8.2009 12:15pm
SeaDrive:

he would loan them a spare gun from the evidence room


Surely not.

If true, then it's an episode of CSI waiting to happen.
4.8.2009 12:53pm
jviss (mail):
"Finally, Illinois, Massachusetts, New Jersey, New York, and North Carolina apparently require up to a month, or in New York's case up to six months, for a handgun purchase permit (or, in New Jersey, any firearm purchase permit) to be cleared. Other states require from two to fifteen days."

I'd like to understand the full context of this statement. There is no waiting period for purchase in Massachusetts, if you already have the LTC. It takes time to get a LTC, but this is expected, and not imposed as a pre-purchase requirement, but is due to ordinary administrative delay.

Is the author claiming that all licensing delays are per se purchase waiting periods? If so, I offer that this argument is fallacious, and calls into question the entire article. For example, the so called waiting period for an in-person purchase for an out of state handgun purchaser in any state is forever, due to federal law.
4.8.2009 1:19pm
Philistine (mail):
Eugene,

For the very reasons you point out that a "handgun only" waiting period doesn't deter impulsive crimes because of the availability of long guns, wouldn't the waiting period also not overly burden the right to self-defense, long guns being available for that during the waiting period?

If the concern is ability to carry with them, then the time frame to be concerned about would be the concealed-carry permit time, which is usually substantially longer than the waiting period.

(Ohio's law that you mention, allowing for an emergency concealed carry permit in cases of actual threat seems to recognize this).
4.8.2009 1:24pm
Clayton E. Cramer (mail) (www):

Its interesting to note that when California passed its waiting period laws (both the earlier handgun and then the all gun) the gun control movement was stating that the majority of the firearms used in crime within days of purchase.
The California handgun waiting period law (although originally only one day) dates back to 1923, and I believe was part of the bill passed to try and disarm Chinese and Hispanics.
4.8.2009 1:43pm
Clayton E. Cramer (mail) (www):

If the concern is ability to carry with them, then the time frame to be concerned about would be the concealed-carry permit time, which is usually substantially longer than the waiting period.
Not necessarily. California actually exempts (with a bunch of limitations and gotchas) people who has a TRO against another person from the concealed weapon permit requirement. See Cal. Penal Code 12025.5. In addition, in some states, there is no requirement for a permit to carry concealed (Vermont and Alaska) and in some states, permits aren't required to carry concealed except in cities or on public roads (such as Idaho).
4.8.2009 1:46pm
Dilan Esper (mail) (www):
Is the author claiming that all licensing delays are per se purchase waiting periods?

The only analogies I can think of to this are in the arraignment and speech permit areas, and in each case, a delay in a particular case is the same as a waiting period. In other words, if a jurisdiction waits you make a month to get your parade permit, there's a First Amendment violation whether that month is authorized by a law or simply occurs in your particular case. Similarly, if you are held 7 days without an arraignment, that violates McGlaughlin whether or not it is authorized by a law.
4.8.2009 2:01pm
Philistine (mail):

In addition, in some states, there is no requirement for a permit to carry concealed (Vermont and Alaska) and in some states, permits aren't required to carry concealed except in cities or on public roads (such as Idaho).



Well sure--but do those states have a waiting period? Much less a handgun-only one?

My only point is that the special concern for a handgun-only waiting period seems misplaced, since there is some justification for the fact that the availability of immediate purchase of a long gun reduces the danger of the "defenseless" period.

It's a seperate question--that I don't think EV goes into--of whether their is any sort of constitutional issue with a delay for concealed carry, though Heller's suggestion that bans on concealed carry are fine would seem to say no.
4.8.2009 2:02pm
Clayton E. Cramer (mail) (www):

Well sure--but do those states have a waiting period? Much less a handgun-only one?
To my shock, there isn't in any of them, since the Brady Law's waiting period was replaced in 1998 with instant check.
4.8.2009 2:06pm
Bruce Hayden (mail):
I am thankful that Colorado did not have any sort of registration or waiting period some 20 years ago. I was assaulted by my business partner, called the cops instead of fighting him, and he was ultimately cited for it. Then, he took to driving slowly by my house, purportedly to show potential home buyers the neighborhood. We slept a lot sounder with a loaded 12 gauge in the corner that I was able to go out and buy that same day.
4.8.2009 2:06pm
Clayton E. Cramer (mail) (www):

My only point is that the special concern for a handgun-only waiting period seems misplaced, since there is some justification for the fact that the availability of immediate purchase of a long gun reduces the danger of the "defenseless" period.
Of course, in a number of states, you can carry openly, without a permit. You could also carry a rifle or shotgun openly, too, but that would be clumsy, to say the least.
4.8.2009 2:09pm
Michael Ejercito (mail) (www):
Yes. IIRC (it's been a while), the objections were the usual 'guns never help, only hurt' type of thing.

Sometimes they hurt the right people.
4.8.2009 2:15pm
Clayton E. Cramer (mail) (www):

(Ohio's law that you mention, allowing for an emergency concealed carry permit in cases of actual threat seems to recognize this).
"The practical effect of this statute is that any person carrying a concealed weapon is subject to arrest, incarceration, and indictment before being able to establish the legality of his or her actions. Thus, a legal action subjects an innocent person to prosecution for a felony. It is only later, at the peril of a trial, that innocence may be established."[Klein v. Leis, Ohio Court of Appeals, 2002-Ohio-1634, para. 10.]
4.8.2009 2:26pm
Andy Freeman (mail):
> Try finding a gun store that is open in the middle of the night.

Interestingly enough, that argues against the utility of waiting periods.

A huge fraction of crimes happen outside of "store hours". That tells us that the perpetrators planned ahead, that waiting periods didn't actually "cool" anything.

However, I'm a reasonable person. If the state is willing to accept strict liability during the waiting period, I'm willing to go along.

What? How can liability pose any risk if their "no burden" and "no risk" to the potential buyer arguments in support of waiting periods were correct?
4.8.2009 4:08pm
Dilan Esper (mail) (www):
However, I'm a reasonable person. If the state is willing to accept strict liability during the waiting period, I'm willing to go along.

How about if the NRA accepts strict liability for crimes committed with guns purchased immediately beforehand?

More seriously, I don't claim to know about whether waiting periods really are effective. I do know, however, that as I observed, it isn't like if there isn't a waiting period a person is really going to be able to get a gun in an emergency. Practical realities-- waiting period or no waiting period-- militate that to exercise your right to keep and bear arms, you should plan in advance.
4.8.2009 4:18pm
RPT (mail):
Does anyone on any side of this debate see a correlation among the hyped fear of Obama's impending confiscation of everyone's guns (see, e.g. Malkin, Beck, et al) and increased gun sales (certainly good for the industry) and the recent wave of mass shootings. Disclaimer to posters: I have no position on this matter; I have a CEO client with a California ccw permit but don't own one myself. Please discuss the issues rather than attack me for asking the question.
4.8.2009 4:43pm
Clayton E. Cramer (mail) (www):

I do know, however, that as I observed, it isn't like if there isn't a waiting period a person is really going to be able to get a gun in an emergency. Practical realities-- waiting period or no waiting period-- militate that to exercise your right to keep and bear arms, you should plan in advance.
1. It may be that waiting periods encourage (although perhaps not in a large way) gun ownership. The prospect of needing a gun, but not being able to get on a day or two notice, might cause some forward thinking sorts to buy a gun that they don't particularly need.

2. If waiting periods were overnight (such as California's original handgun waiting period), you might have a point. But when you have to wait 15 days--someone could easily have a crisis come up that requires a gun, right now--and with no easy way to get one. I saw this during the Night Stalker period in Orange County. Long guns were not yet subject to waiting periods, and were all sold out. Handguns were 15 days--and there were people that genuinely wanted one immediately.

I do agree: buy a gun now. Oh wait, Obama's efforts have made guns relatively hard to purchase, and it isn't because of waiting periods!
4.8.2009 4:44pm
Clayton E. Cramer (mail) (www):


However, I'm a reasonable person. If the state is willing to accept strict liability during the waiting period, I'm willing to go along.



How about if the NRA accepts strict liability for crimes committed with guns purchased immediately beforehand?
The flaw in your argument is that NRA is not responsible for the actions of a person who buys a gun, since they have no control over that person's actions. When the government prohibits you from obtaining the means of self-defense, they have exercised substantial control over your actions.

Anytime the government denies you a fundamental right, such as the right to self-defense, they should be obligated to provide some equivalent. If they prohibit carrying in courthouses, that's perfectly reasonable. But then they better have a serious effort to make sure that others can't bring in deadly weapons, and provide enough security that those who have been disarmed are actually safe. Ditto for jail inmates, or airline passengers.
4.8.2009 4:49pm
Clayton E. Cramer (mail) (www):

Does anyone on any side of this debate see a correlation among the hyped fear of Obama's impending confiscation of everyone's guns (see, e.g. Malkin, Beck, et al) and increased gun sales (certainly good for the industry) and the recent wave of mass shootings.
1. Hardly hyped. The Obama Administration has made its intentions very clear.

2. If these incidents involved people who had recently purchased firearms, there might be an interesting claim. But the Binghamton shooter had the not easy to get New York State pistol permits for a number of years, and the Pittsburgh shooter bought his guns after being kicked out of the Marine Corps.

3. There's a strong copycat element to mass murders, and hyped media coverage has caused these in the past, and is probably doing so now.
4.8.2009 4:53pm
RPT (mail):
CEC:

"1. Hardly hyped. The Obama Administration has made its intentions very clear."

Thanks for the tempered response. Is this intention manifest through announced legislation or something else? How do they get around away Heller?
4.8.2009 5:00pm
Clayton E. Cramer (mail) (www):

Thanks for the tempered response. Is this intention manifest through announced legislation or something else? How do they get around away Heller?
Attorney General Holder has stated directly his desire for a permanent assault weapons sales ban in support of Mexico (even though most of the guns, and especially of the most serious narcoterrorist weaponry, isn't coming from the U.S.). Did you miss this?

HR 45, introduced by Bobby Rush (D-IL) would require all owners of handguns and detachable magazine semiautomatic weapons to have a federal license, with background checks, fingerprinting, psychological tests, and written tests. And renewable every few years.

I suspect that Obama and friends are hoping that by the time this gets to the Court, they will have had a chance to put some "red=green" justices up there.
4.8.2009 5:03pm
Dilan Esper (mail) (www):
1. It may be that waiting periods encourage (although perhaps not in a large way) gun ownership. The prospect of needing a gun, but not being able to get on a day or two notice, might cause some forward thinking sorts to buy a gun that they don't particularly need.

2. If waiting periods were overnight (such as California's original handgun waiting period), you might have a point. But when you have to wait 15 days--someone could easily have a crisis come up that requires a gun, right now--and with no easy way to get one. I saw this during the Night Stalker period in Orange County. Long guns were not yet subject to waiting periods, and were all sold out. Handguns were 15 days--and there were people that genuinely wanted one immediately.

I agree that 15 days is way too long, and I think that analysis is consistent with Professor Volokh's post.

The point I am making is simply that waiting period or no waiting period, if you are trying to buy a gun on the spur of the moment, you may run into problems obtaining it. And that means, as a practical matter, that short waiting periods probably don't have much of an effect on gun availability.

The flaw in your argument is that NRA is not responsible for the actions of a person who buys a gun, since they have no control over that person's actions.

And the flaw in your argument is that the government isn't responsible for criminals attacking people either.

For very good reasons, we don't impose tort liability on the government just because the police don't catch every criminal. I was making a snarky comment in response to an ill-thought-out proposal to change that.
4.8.2009 5:13pm
Dilan Esper (mail) (www):
Anytime the government denies you a fundamental right, such as the right to self-defense, they should be obligated to provide some equivalent.

It's worth noting, by the way, that it is very much an open question whether (1) there is a constitutional right to self-defense at all, as opposed to a right to own a gun to defend yourself, and (2) whether any such right is "fundamental". Heller didn't decide either question.
4.8.2009 5:15pm
CWuestefeld (mail) (www):
Finally, Illinois, Massachusetts, New Jersey, New York, and North Carolina apparently require up to a month, or in New York's case up to six months, for a handgun purchase permit (or, in New Jersey, any firearm purchase permit) to be cleared.

In the case of New Jersey, this isn't quite right.

First, the NJ permit is not for the right to purchase a particular firearm, but for the right to purchase firearms in general. Once I've got the permit, I can purchase as many (long) guns as I want, any time I want. The handgun permit is similar, except that it is for a limited quantity of handguns, and expires in a limited period (one year?). So these do not constitute a waiting period as such, at least not once you've got the permit.

Second, while the NJ laws say that the State must deny within 30 days, this is not the case in practice. From personal experience and that of anyone I've ever heard of, it takes 2-3 months for approval: it is NEVER done within 30 days. Because the law explicitly states that the permit must be denied for reason within 30 days or it must be granted, this has been tested in court. The State Supreme Court ruled that the 30-day deadline really only constitutes an ideal goal, and so long as the State says they're trying to achieve it, they can actually take as long as they want.

(On a related note, it's frequently claimed that NJ is a Concealed Carry state. As far as the rule books are concerned, this is nominally true. However, these permits are granted only at the pleasure of the local [justice or police chief, I forget], depending on a demonstrable need for defense, and as a matter of policy, there is no need for defense that is sufficient. So the only people in NJ that can get CC permits are those with political connections.)
4.8.2009 5:20pm
Clayton E. Cramer (mail) (www):

And the flaw in your argument is that the government isn't responsible for criminals attacking people either.
It is responsible for preventing you from having access to the most effective means of self-defense.


It's worth noting, by the way, that it is very much an open question whether (1) there is a constitutional right to self-defense at all, as opposed to a right to own a gun to defend yourself, and (2) whether any such right is "fundamental". Heller didn't decide either question.
Probably because it's a bit obvious that a right to self-defense is fundamental. All other rights are irrelevant, if the right to breathe has been taken away. I am hard pressed to see how any right can be more fundamental than the right to defend yourself from a deadly attack.
4.8.2009 5:23pm
Dilan Esper (mail) (www):
Probably because it's a bit obvious that a right to self-defense is fundamental. All other rights are irrelevant, if the right to breathe has been taken away. I am hard pressed to see how any right can be more fundamental than the right to defend yourself from a deadly attack.

Is this in the 9th Amendment? Due Process clause? Some emanation or penumbra of the Second Amendment? I guess I have to re-read Griswold and check.
4.8.2009 5:33pm
ohwilleke:
Judges in Second Amendment cases post-Heller have appeared quite interested in analyzing alternatives available to an alleged victim of a constitutional rights violation.

During a five day waiting period for handguns, if one may legally use a gun, buy a long gun, or borrow a gun, the case for a constitutional breach is significantly reduced. The fact that a waiting period can apply even to someone who already owns guns also diminishes the case that there is a strong nexus between the right to bear arms and this particular restriction. Gun purchase waiting periods are not licensure requirements.

There are also quite a few short term legal restraints on purchases of property subject to regulatory approvals. Alcohol can't be sold on Sundays in many places. In Colorado, one still can't buy a car on a Sunday. Private initial offerings of securities are subject to prolonged delays pending regulatory approvals, as are private sales of liquor stores and pawn shops in many states, radio stations, defense contractors that need security clearances, businesses that are Medicaid vendors, and businesses requiring state licensure from escort services to barbers to the practice of law. Article 6 of the Uniform Commercial Code used to prohibit all sales of substantially all assets of a business without a waiting period.

Even important constitutional rights, like the right to freedom of the press for foreign journalists, can be lawfully delayed by visa processing rules, to give just one example. Waiting periods relative to constitutional rights have received the most searching scrutiny in cases involving abortion. But, abortion is an inherently time sensitive issue, while limitations on the right to bear arms for self-defense are in substantial part due to procrastination on the part of the purchaser outside theoretical case of someone who has an urgent bona fide need to buy a handgun for self-defense immediately upon reaching an age at which that person is eligible to do so.
4.8.2009 5:34pm
Dan M.:
Whitehouse.gov explicitly announces the administrations desire for a permanent assault weapons ban, closing the federal 'gun show loophole,' repealing the Tiahrt amendment, federal child access prevention laws, and federally mandated 'childproof' guns.

The Democratic Party platform also wants to keep weapons away from 'terorists' and it has been Rahm Emanuel's pet project to call for use of the No Fly List to deny 2nd Amendment rights without due process.
4.8.2009 5:57pm
Glenn W. Bowen (mail):

or in New York's case up to six months, for a handgun purchase permit


In practice in NYC, over a year- many times it's impossible to get the permit processed without siccing a lawyer on them... because the City of new york doesn't want you to have a gun at all.
4.8.2009 5:57pm
Clayton E. Cramer (mail) (www):

Is this in the 9th Amendment?
Certainly plausibly protected by that. What makes Griswold a silly reference is that it found a right that would probably have not been understood by the Founders, while the right of self-defense would have been.

You seem intent on going down the same path as the Court in Cruikshank, where they were unprepared to find too many rights in a rather similar case, also involving what happens when the right to bear arms is taken away, immediately before the right to breathe.
4.8.2009 6:08pm
Dan M.:
It's also silly to link the gun-buying hysteria to these mass shootings. Every single one of the people involved in these mass shootings had owned their guns for a while, almost every single one had recently lost a job and had serious mental problems, or was going through a divorce or something. There's no evidence that people are just buying up guns to fight the government. You're not "fighting the government" when you're being kicked out of your mom's house.

Also, the Pittsburgh shooter was a white supremacist and one of the cops was black. Maybe that set him off. You know, on top of being a violent asshole to begin with, losing his job, and getting kicked out of his mom's house.
4.8.2009 6:13pm
pintler:

More seriously, I don't claim to know about whether waiting periods really are effective. I do know, however, that as I observed, it isn't like if there isn't a waiting period a person is really going to be able to get a gun in an emergency.


If the emergency is someone breaking down your door, then it is indeed a bit late for a trip to the store. Outside of that, without an imposed waiting period, isn't a realistic timeframe on the order of 2 or 3 hours for most people (if you start the stopwatch at night, then 'before noon tomorrow')?

I know a fellow who teaches a Basic Handgun class for the local police athletic association. From time to time he gets requests to teach a class for one person, or a family, tomorrow. I have, thank goodness, never been in that kind of situation, but if you are, I bet five days seems like a long time.

None of this is to say you can't argue for waiting periods, but I do think they should be justified with hard data, and as narrowly drawn as possible. Saying they are a minimal intrusion isn't much of a justification if they are also minimally effective.

[local oddity: state law prescribes a 5 day handgun waiting period, unless you have a CPL. There is not an LEO exception. It's a busy afternoon at the local police athletic assn, which is an FFL. Joe Civilian buys a gun, shows his CPL, walks out with the gun. Next in line is a uniformed local officer, fresh out of the academy, issue gun on his belt, ready to buy an off duty gun. They usually don't have a CPL, and have to wait the 5 days. They frequently seem a bit surprised.]
4.8.2009 6:28pm
Benjamin Cook (mail) (www):
I am still reading your entire article. So if I jumped the "gun" and you have answered these please forgive me. A bit about me. I have a MA in International Security and I own a gun store in SC. I write a column for the local paper and do bit of political consulting from time to time. As will be soon obvious, I have no law background.
____

***And judges seem especially likely to
adopt a substantial burden threshold as to the right to bear arms because
judges are rightly worried about gun crime and gun injury, and are likely to
want to leave the legislature with some latitude in trying to fight crime in
ways that interfere little with lawful self-defense. Page 19***

History and the natural "inertia" of government actually suggest otherwise.
It has typically been the "lawful" that bare the brunt of legislative adventurism because the lawful are easier-prey. It is difficult to disarm those that work under-the-radar. But the law abiding citizen that comports himself in the light of day is an easy mark and must contend with laws that "substantially" interfere with lawful self-defense, whether severally or in aggregate.

***c. The "of the Kind in Common Use" "by Law-Abiding Citizens for
Lawful Purposes" Test Page 38***

As many of us are apt to do, you might be and courts might be looking too deeply and in effect past the obvious answer. "Arms . . . of the kind in common use" can be easily described as Long Guns and Handguns. As is the descriptor in BATFE form 4733. Additionally full-auto/machine gun vs. single fire and semi-auto also narrow effectively the arms in common use. Finally, devices that could be deemed overly destructive would not be arms in common use. There, I believe, is an assumption of force parity. You do not need a sawed off shotgun to defend yourself or hand grenade. This disparity of force is not necessary to defend ones self effectively. There is also an assumption of force direction and control. Overly destructive devices tend to be too broad in the direction of force and difficult to control.

Discussions about stock length and other fixtures of firearms that deem the weapon to be of the "assault" variety is political rather than practical. What makes a firearm effective for close quarters combat is exactly what makes a similar fire arm effective for personal defense.

A layman has no effective understanding of special tactics like clearing a room or muzzle control. He has never participated in an "active shooter" drill.

Keeping in mind the lack of training the typical citizen has, it is more important the tool used in self defense be tailored to the likely defense scenario (home invasion, mugging). This is typically a smaller firearm in as large a caliber that can be effectively wielded. Stocks and fore grips that improve mobility and acuity should be allowed because these do not effect force parity and actually work to maximize the control and direction of the force.
4.8.2009 6:53pm
RPT (mail):
"CEC:

Attorney General Holder has stated directly his desire for a permanent assault weapons sales ban in support of Mexico (even though most of the guns, and especially of the most serious narcoterrorist weaponry, isn't coming from the U.S.). Did you miss this?"

Yes, I did miss this, because I can't follow every issue everywhere all the time. I have to work. Sometimes questions are just questions. I ask this question here because there are obviously many experts on the subject, starting with the host. I am asking you for information, not snarky comments.

In any event, the responses seem to identify only limited restrictions, i.e. on terrorists (which I would have thought was a good thing, but maybe not), or on assault weapons. This is the only context on this blog in which terrorists are defended, a la Ashcroft. Understanding the significance of the slippery slope argument in this context, let me ask again, without regard to the slope, or licensing, or the stealth USSC point, is there any administration proposal to simply confiscate guns, as Malkin, Beck et al, proclaim?
4.8.2009 6:59pm
Dan M.:
There's not a specific proposal from the administration to confiscate guns. How could they ever pass the legislation if they made their ultimate intent so plain to the public? And could you point to such a proclamation by Glenn Beck or Michelle Malkin? Gun confiscations don't come about until citizens refuse to comply with licensing or registration (or more likely after they do comply).

Most people that would ask such a question already know the answer, so it's typically justifiable to be snarky with them.
4.8.2009 7:21pm
Dilan Esper (mail) (www):
You seem intent on going down the same path as the Court in Cruikshank, where they were unprepared to find too many rights in a rather similar case, also involving what happens when the right to bear arms is taken away, immediately before the right to breathe.

The right to keep and bear arms is protected, no doubt. And Heller's reasoning is plausible that it includes a right to have a gun to protect yourself.

But that's a far cry from a generalized right of self defense. Did the framers understand that the Constitution would override, e.g., state tort and criminal laws that did not provide, or provided only limited, affirmative defenses for self-defense in various contexts? Is that supported by the text of the Constitution? Its history? Its structure? A modern social consensus?

And how far does it extend? Does it extend, e.g., to self-defense against a fetus (an argument that Professor Volokh has made before)? Self-defense against mental torment? Does the Constitution speak to what forms of self-defense are permitted (other than with respect to arms in the Second Amendment)?

It seems to me that such a right would be a litigator's dream and would be at least as controversial, divisive, expansionary, and difficult to administer as Griswold/Roe and Lochner were.
4.8.2009 7:21pm
RPT (mail):
Dan M:

I surrender. No more questions.
4.8.2009 7:41pm
Dan M.:
Feel free to continue asking questions. But I just figured you should be aware that a question like "Is there actually an administration proposal to confiscate guns?" isn't typically a reasonable question.

Of course, adding people on the No Fly List to the 'prohibited persons' list would likely result in gun confiscation when those people tried to buy more guns.
4.8.2009 7:52pm
Michael Ejercito (mail) (www):


Of course, adding people on the No Fly List to the 'prohibited persons' list would likely result in gun confiscation when those people tried to buy more guns.

I was wondering about those No Fly lists.

The Left keeps claiming that we should not trust the government to say who is and is not a terrorist, that the people in Gitmo were innocent.

Why should we trust that same government to say who is and is not a terrorist for the purpose of prohibiting firearms ownership?
4.8.2009 8:08pm
GaryC (mail):
Clayton E. Cramer:

Probably because it's a bit obvious that a right to self-defense is fundamental. All other rights are irrelevant, if the right to breathe has been taken away. I am hard pressed to see how any right can be more fundamental than the right to defend yourself from a deadly attack.



Dilan Esper:

Is this in the 9th Amendment? Due Process clause? Some emanation or penumbra of the Second Amendment? I guess I have to re-read Griswold and check.


The 13th Amendment is one place. After all, the loss of the right of self-defense is the fundamental defining characteristic of a slave. A slave with a right to self-defense would be an oxymoron. Which explains why part of the manumission process in some cultures was giving the former slave a weapon, and the right to use it in self-defense.
4.8.2009 9:05pm
GaryC (mail):
Dan M:

The Democratic Party platform also wants to keep weapons away from 'terorists' and it has been Rahm Emanuel's pet project to call for use of the No Fly List to deny 2nd Amendment rights without due process.


The Democratic Party is being politically incorrect. These people are not "terrorists", they are "man-made disaster makers."
4.8.2009 9:08pm
Melancton Smith:
Dilan Esper wrote:

Is this in the 9th Amendment? Due Process clause? Some emanation or penumbra of the Second Amendment? I guess I have to re-read Griswold and check.


It is a natural law above even the Constitution. Red in tooth and claw. Mess with it and get bitten. You can't repeal the law of unintended consequences.
4.8.2009 10:24pm
Clayton E. Cramer (mail) (www):

In any event, the responses seem to identify only limited restrictions, i.e. on terrorists (which I would have thought was a good thing, but maybe not), or on assault weapons. This is the only context on this blog in which terrorists are defended, a la Ashcroft.
I must have missed something specific to terrorists. If you define terrorists as persons not lawful residents of the U.S. who are on a watch list, I don't a problem disarming such people.

Assault weapons are the one category of commonly owned weapon most clearly protected by the Second Amendment. Even if you ignore the self-defense right that was generally assumed, even if you insist on a "right of the states" to maintain militias instead of an individual right, these are protected weapons, because they are necessary tools for overthrow of a tyrannical government. And they are seldom criminally misused (largely because of non-concealabilty).
4.8.2009 11:54pm
Clayton E. Cramer (mail) (www):

Understanding the significance of the slippery slope argument in this context, let me ask again, without regard to the slope, or licensing, or the stealth USSC point, is there any administration proposal to simply confiscate guns, as Malkin, Beck et al, proclaim?
I don't watch Beck regularly, but I do read Malkin pretty often. Have either mentioned an administration proposal to confiscate guns, as distinguished from efforts to make them hard to purchase?
4.8.2009 11:55pm
Clayton E. Cramer (mail) (www):

The right to keep and bear arms is protected, no doubt. And Heller's reasoning is plausible that it includes a right to have a gun to protect yourself.

But that's a far cry from a generalized right of self defense. Did the framers understand that the Constitution would override, e.g., state tort and criminal laws that did not provide, or provided only limited, affirmative defenses for self-defense in various contexts? Is that supported by the text of the Constitution? Its history? Its structure? A modern social consensus?
Consider how many state constitutions include a guarantee of a right to self-defense. Even state constitutions that don't have a RKBA provision, such as California, have a guarantee of a right to defend self, family, and property. Even states like Pennsylvania, with large numbers of pacifists, didn't deny a right to self-defense in the Colonial period.


And how far does it extend? Does it extend, e.g., to self-defense against a fetus (an argument that Professor Volokh has made before)? Self-defense against mental torment? Does the Constitution speak to what forms of self-defense are permitted (other than with respect to arms in the Second Amendment)?
Even the Catholic Church agrees about the right to self-defense against a fetus. That's why they support abortion to the save the life of the mother (as happens with ectopic pregnancy). Mental torment? I guess if you are being mentally tormented, you are free to engage in mental self-defense, just like physical attack justifies physical self-defense. I think you are being too clever by half on this.

The Constitution actually says nothing about the right to self-defense, for the same reason that it doesn't guarantee a right to drink water, or to be buried upon death. (There was a discussion during ratification debates about the right to be buried, but that was intended as a satirical comment about the lack of necessity for a Bill of Rights.)
4.9.2009 12:01am
Clayton E. Cramer (mail) (www):

A slave with a right to self-defense would be an oxymoron. Which explains why part of the manumission process in some cultures was giving the former slave a weapon, and the right to use it in self-defense.
Oddly enough, when researching my book Armed America, I discovered that a surprising number of slaves were allowed to be armed with guns for hunting and for militia duty, surprisingly late. And when the Revolution started, Virginia decided to do a search for weapons in slave quarters out of concern that all this talk about "natural rights of man" might get taken a bit too seriously in some areas--and they were startled at how many guns they found.

But it is the case that Virginia, North Carolina, and Maryland all required masters to arm male indentured servants as part of their "freedom dues." But it does not appear that indentured servants were generally disarmed. Only the general supervisory authority of their master (and lack of ready funds) would do that.
4.9.2009 12:05am
Gene Hoffman (mail) (www):
Clayton,

Your interpretation of California law is minorly incorrect. You can loan a friend who is not otherwise prohibited a long gun. You can also loan a friend who is not otherwise prohibited and has a valid HSC card a handgun for up to 30 days.

On a different note: Waiting periods have no rational basis for each firearm acquired after the first and are thus unconstitutional in the case where one can prove possession of a functional firearm (by e.g. bringing it to the gun store with you...)

-Gene
4.9.2009 3:39am
Dilan Esper (mail) (www):
Even the Catholic Church agrees about the right to self-defense against a fetus. That's why they support abortion to the save the life of the mother (as happens with ectopic pregnancy).

Actually, I've heard some conservative Catholics deny this. They have some flim-flam about double effect (the doctrine that allows one to avoid the ridiculous and offensive implications of Catholic doctrines by pretending you really don't intend the result), but apparently they are quite clear about no abortions directly intended to save the life of the woman by killing the fetus.

In any event, there's no reason why the medical self-defense abortion argument would stop at the life of the mother. Unwanted pregnancies are essentially parasitical and cause severe health effects that the mother has a constitutional right to fend off, right?

Seriously, you are way, way off here Clayton. Not only would a generalized constitutional right of self defense be an administrative nightmare, but it was clearly NOT ever contemplated by the framers-- they certainly didn't think that the affirmative defenses vel non in the definitions of state and federal crimes would be invalidated as insufficiently protective of the "natural" right to defend onesself.
4.9.2009 3:53am
djung:
I am a bit put off by the arguments here that must delve into the more academic aspects of the law in order to argue for or against the right to own an effective method of self-defense. Or to purchase one at any time. Must one actually be a learned professor of law in order to understand their rights? In this society, at this time, perhaps so. But I doubt that the Founding Fathers saw it that way, for you Original Intent types. Or that it's in the best interest of the Way That Things Are Now, for you Living Document types.

The highest law of the land must be understandable by the least member of the society in it. "..shall not be infringed" should never have been subject to interpretation. From the very moment that interpretation was applied to it, the right became negotiable. For negotiation, you require lawyers and judges and each case is judged based on the prejudices of the judges and the voir dire selection of the jury. And let's never forget the politicians, who will legislate gravity if they have the chance.

This could not have been the original intent of the Founding Fathers. And if you view the Constitution as a living document instead, I submit that if every right is negotiable, the law cannot be applied flatly or fairly in every case.

If viewed in this light, one can see that the Second Amendment admits to no exceptions. Not for felons. Not for the mentally incompetent or minors. Not for full-rock machine guns or ground-to-air missiles. No exceptions. Still, we have NFA 34, GCA 68, the now-defunct but possibly to be resurrect assault weapon ban, and so on and so on. Not to mention regulations about weapons importation, "sporting use" of ammunition, presidential orders. In short, we have a huge mess and it takes lawyers and judges to figure out. Where do you draw the line? The only logical place to have drawn it was at "no exceptions"...but we lost that opportunity even before we (most of us) were born.

Similarly, the "yelling 'Fire!' in a crowded theater" judgment has given rise to hate speech and political correctness that deny your First Amendment right to unpopular speech. The First Amendment reads "Congress shall make no law...". If Congress does make such a law, it's time for the torches and pitchforks. Yet that time has come and gone. We have hate speech laws. We have McCain-Feingold. You may not say this or that, under specific circumstances that require lawyers and judges to interpret.

Oh, please do tell me about how some laws are incorporated against the states and some are not. And who decided that the rights of an American citizen as recognized in the highest law of the land can be violated by the states? Let me guess; politicians made a law, a lawyer made a plea and a judge made a decision.

I'm sorry, folks; I do blame the lawyers and the judges for this. The only reset button seems to be starting again at zero, but I see no real chance of this. And if you're sensing despair here over the future of my country, well, then, I'd say you're not wrong.
4.9.2009 10:35am
Dilan Esper (mail) (www):
Djung:

Without getting into the weeds about how other absolutist constitutional language is interpreted, you need to remember that the 2nd amendment also refers to a well regulated militia. Nobody doubts that, at the very least, regulations of guns that relate to the discipline and training and organization of an armed populace are constitutional.

Where waiting periods fit in is a different issue, but you can't point to the constitution and conclude that all gun laws are precluded.
4.9.2009 1:05pm
Clayton E. Cramer (mail) (www):

Actually, I've heard some conservative Catholics deny this. They have some flim-flam about double effect (the doctrine that allows one to avoid the ridiculous and offensive implications of Catholic doctrines by pretending you really don't intend the result), but apparently they are quite clear about no abortions directly intended to save the life of the woman by killing the fetus.
There might be some Catholics who hold that view, but it is certainly the position of the Catholic Church. I've never seen a pro-lifer of any persuasion argue against abortion to save the life of the mother.


In any event, there's no reason why the medical self-defense abortion argument would stop at the life of the mother. Unwanted pregnancies are essentially parasitical and cause severe health effects that the mother has a constitutional right to fend off, right?
Minor injuries don't generally justify use of deadly force. The standard in many states is an injury likely to cause death or great bodily injury. Inconvenience doesn't quite fit.


Seriously, you are way, way off here Clayton. Not only would a generalized constitutional right of self defense be an administrative nightmare, but it was clearly NOT ever contemplated by the framers-- they certainly didn't think that the affirmative defenses vel non in the definitions of state and federal crimes would be invalidated as insufficiently protective of the "natural" right to defend onesself.
That's a strong assertion, especially since at least one of the Framers, Associate Justice James Wilson, wrote on this very subject as a natural right.
4.9.2009 1:20pm
Clayton E. Cramer (mail) (www):

Your interpretation of California law is minorly incorrect. You can loan a friend who is not otherwise prohibited a long gun. You can also loan a friend who is not otherwise prohibited and has a valid HSC card a handgun for up to 30 days.
That's why I get for leaving the insane asylum that is California. It's hard to keep up with the ever changing laws.

And talk about stupid: if you can loan someone a gun for 30 days, it rather defeats the requirement for background checks for transfers.
4.9.2009 1:25pm
Clayton E. Cramer (mail) (www):

Without getting into the weeds about how other absolutist constitutional language is interpreted, you need to remember that the 2nd amendment also refers to a well regulated militia. Nobody doubts that, at the very least, regulations of guns that relate to the discipline and training and organization of an armed populace are constitutional.
Yes, but in the context of the adoption of the Second Amendment, such regulations would be the opposite of gun control advocates. They would be regulations such as those adopted by both states and Congress in that period.

In a modern context, the equivalent to the 1792 and 1803 Militia Acts would require every member of the unorganized militia to possess an M16 of their own purchase. There might be room for flexibility on this--perhaps allowing people to own rifles that at least fired a standard U.S. caliber, such as .223 Rem. or .308 Win. (This was a recurring issue during the Revolution--way too many Americans owned sporting weapons, and not enough owned military arms.) But the sort of regulation that Obama and friends want would not qualify.
4.9.2009 1:34pm
Clayton E. Cramer (mail) (www):

Seriously, you are way, way off here Clayton. Not only would a generalized constitutional right of self defense be an administrative nightmare, but it was clearly NOT ever contemplated by the framers-- they certainly didn't think that the affirmative defenses vel non in the definitions of state and federal crimes would be invalidated as insufficiently protective of the "natural" right to defend onesself.
Could you explain what you mean? Right after the Revolution, there is a case in Virginia where the courts upheld the right of self-defense in a case where a slave killed his master because the master was approaching him with a tool used for castrating slaves. The court held that a master's ownership of a slave extended only to his labor, and that to protect himself from death, loss of a limb, or castration, a slave had the right to kill in self-defense.
4.9.2009 1:38pm
Dilan Esper (mail) (www):
That's a strong assertion, especially since at least one of the Framers, Associate Justice James Wilson, wrote on this very subject as a natural right.

He didn't write about how courts and judges would be using this "natural right" to require affirmative defenses to common law torts and common law and statutory crimes. It is quite fair to say that nobody thought that there would be a New York Times v. Sullivan-like doctrine specifying the content of self-defense defenses.

If you want one, fine. It's a bad idea, but there are plenty of bad ideas out there. There's nothing, however, in the Constitution that provides for one.
4.9.2009 1:56pm
Clayton E. Cramer (mail) (www):

It is quite fair to say that nobody thought that there would be a New York Times v. Sullivan-like doctrine specifying the content of self-defense defenses.
You might be right about that. The right to self-defense was so deeply assumed that I doubt that anyone worried much about it. It would be like the right to drink water, or to eat meat.
4.9.2009 2:36pm
Clayton E. Cramer (mail) (www):

Must one actually be a learned professor of law in order to understand their rights? In this society, at this time, perhaps so.
One of the more entertaining discoveries that I made while researching one of my books was a book about Kentucky criminal code, intended for Kentucky eighth graders. It was published in the 1830s or 1840s--and it was surprisingly simple, because the criminal code was surprisingly simple.

Of course, there were some commonly shared values at the time. There still are, but they are only shared by the population, not shared with the lawyers and law professors. And that may be the problem.
4.9.2009 2:59pm
Dilan Esper (mail) (www):
But the thing is, Clayton (and I'm gonna be sounding like Justice Scalia here, but he's right about this), one of the problems with unenumerated, "assumed" rights is that when you try to give them content, you are unsure of what level of generality you are working on. Take a look at Michael H. v. Gerald D.-- I don't agree with everything Scalia says in that case (far from it), but it's a nice demonstration of what happens when you start trying to translate "natural" rights into actual doctrine.

I would never contest that the framers thought people had a right to protect themselves. But that's very different than arguing that they envisioned a judicially enforceable right that could be used to invalidate state and federal common and statutory law doctrines on self-defense, or that such a judicially enforceable right actually appears in the Constitution.

The closest they got is the Second Amendment, and that only deals with one aspect of self-defense.
4.9.2009 3:01pm
RPT (mail):
Per a request in the thread, full length included for context:


From the April 6 edition of Premiere Radio Networks' The Glenn Beck Program:

BECK: The very next day, in Pittsburgh, another nut job takes his guns, his weapons, and he just starts shooting police officers. Not too long after, before they found out that it was over an argument with his mother because a dog peed in his house. Before they found out about the dog-peeing story, the press, the blogs, everybody immediately went to, "This guy's a conservative with guns that says Obama's coming." Noel Sheppard, he's the associate editor of NewsBusters. He's been following this.

Noel, how long did it -- wait, what happened to Noel? Did we lose Noel? Noel, are you there? Noel, are you there? OK, we lost Noel, let's call him back. It didn't take long before they immediately started jumping on the bandwagon that it was -- this guy was a conservative, and his outrage, the reason why he was shooting, was because of me.

Now, I haven't followed this part of the story because quite honestly, you know, I know this stuff -- this is coming. It's insane, but anything -- I've warned you for months -- anything that they can do to discredit, they will. That's why I've said, you must know what you know. Do not allow me or anyone else to be your voice. You be your voice. You know what you know. Learn as much as history as you possibly can. Prepare for a time where there will be no national voice that you can turn to.

[...]

BECK: I have a gun I will never, ever fire. In fact, I have two guns I will never, ever fire. Does that make me crazy, because I have these two guns?

STU BURGUIERE (Glenn Beck Program executive producer): It's sort of a silly sidebar here, but, I mean, yes, it might have something to do with motivation if you're a collector --

BECK: Yes.

BURGUIERE -- and you have 5,000 guns, then obviously that's different than having 5,000 guns that -- to shoot police officers as they come in your front door.

BECK: Exactly right. An arsenal is somebody who is planning on using them, you know, in some sort of militia movement.

SHEPPARD: But I think one of the -- but I think one of the other aspects here is: Under the current administration with a Democrat-controlled Congress, knowing what Obama's positions were, as a senator and also as an Illinois senator, is it an irrational fear of any gun owner at this point --

BECK: No.

SHEPPARD: -- to think that gun -- to think that gun laws are going to be changed?

BECK: No.

SHEPPARD: The answer is no. That is actually a rational fear.

BECK: It's not irrational at all. They have said it.

SHEPPARD: It's actually a rational fear. Yeah.

BECK: They have said it. Why can't we take people at their word? They have said it.

SHEPPARD: Right.

BECK: OK, look, if the president wanted to calm people down -- but there's no reason to in the first place because what we're talking about is a crazy man on Saturday.

SHEPPARD: Right.

BECK: But if he wanted to calm anybody who had any fears he would have said, "This is such a tragedy. And let me reassure: The Second Amendment is the Second Amendment, and I will not infringe on those rights in any way, shape, or form." But he won't say that because he can't say that. Because he will slowly but surely take away your gun or take away your ability to shoot a gun, carry a gun. He will make them more expensive; he'll tax them out of existence. He will because he has said he would. He will tax your gun or take your gun away one way or another.
4.9.2009 6:51pm
Dan M.:
RPT

Glenn Beck specifically mentions taxes and regulations that try to greatly discourage gun ownership. So he's making an argument that you will have ridiculous burdens put upon you that make your right meaningless. But then he did say explicitly "or take your gun away one way or another."

So I'll give you that one. He doesn't specifically mention door-to-door gun confiscations, but since he said "take your gun" you can make the connection. Certainly somewhat hyperbolic right now but not too much of a stretch given what has been suggested by some in Congress and obviously given what we know about Barack Obama and the people he's filled his administration with.
4.9.2009 11:03pm
Dan M.:
I don't think they've ever passed a law in this country authorizing cops to kick in your door and confiscate your weapons without sending you a letter and asking you nicely first.
4.9.2009 11:31pm
NoelArmourson (mail) (www):
After the Assault Weapons Ban went into effect in NYC, didn't Mayor Dinkins send SWAT teams out to confiscate the previously legally registered weapons?
4.11.2009 7:33am

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