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The Right To Keep and Bear Arms in Self-Defense and Government Tracking Regulations:

In this post and the two that surround it 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.

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.

* * *

Government tracking regulations -- nondiscretionary licensing regimes either for possession or carrying, instant background checks, registration requirements, serial number requirements, requirements that guns be test-fired and the marks they leave on bullets recorded, or requirements that all new semiautomatic guns must "microstamp" the ejected brass with the gun's serial number -- generally don't by themselves substantially burden self-defense. If the regulations contain some restrictions, such as waiting periods, fees, or denials of licenses to certain people (either as a class or in government officials' discretion), those might be substantial burdens. But the tracking regulation itself is not much of a burden on self-defense: A person is just as free to defend himself with a registered gun as he would be if the gun were unregistered.

In one high-profile constitutional law area, such requirements are indeed forbidden: Most speakers don't need to get licenses, or register their speech, or submit their typewriters for testing so that their anonymous works can be tracked back to them. Likewise, tracking requirements for abortions would likely be unconstitutional.

But this is not the normal rule for constitutional rights. Even speakers may sometimes need to register or get licensed. Parade organizers may be required to get permits. Ballot signature gatherers may be required to register with the government, and so may fundraisers for charitable causes, though such fundraising is constitutionally protected. People who contribute more than a certain amount of money to a candidate may be required to disclose their identities to the candidate, who must in turn disclose those identities to the government; lower courts have held the same as to people who contribute to committees that support or oppose ballot measures. The contribution disclosure requirements have been judged (and upheld) under a moderately strong form of heightened scrutiny; the other disclosure requirements have been upheld even without strict scrutiny.

Likewise, the Constitution has been interpreted to secure a right to marry, but the government may require that people get a marriage license. The Takings Clause bars the government from requiring people to leave their land unimproved and thus valueless, but the government may require a building permit before improvements are made.

People have a right to vote, under all state constitutions and, in practice, under the federal Constitution, but they may be required to register to vote. Whom they voted for has been kept secret, at least for a hundred years, but whether they voted and what party they belong to is known to the government, and is often even a matter of public record. Many of these requirements are instituted to prevent crime (chiefly fraud) or injury (such as the injury stemming from unsafe construction).

This of course leaves the question of what the right to bear arms is most like: those rights for which government tracking can't be required, or those rights for which it can be. I'm inclined to think that it is more like the trackable rights, and that it is the untrackable rights that are the constitutional outlier.

The rule barring licensing requirements for many kinds of speakers is in large part historical, stemming from an era when such licenses were discretionary and used to control which viewpoints may be expressed. It persists largely because of a continuing concern that some viewpoints may be so unpopular with the government or the public that people who are known to convey those viewpoints will face retaliation. Even so, some kinds of speakers may have to identify themselves to the government, when the speech poses serious concerns about fraud or corruption. The same worry about retaliation, coupled with a longstanding tradition of privacy of medical records, likely provides the cause for the no tracking rule for abortions.

Gun owners as a group have faced some hostility from the government and the public, but gun ownership is very common behavior, and there's safety in numbers: It seems unlikely that the government will retaliate against the tens of millions of gun owners in the country, who represent 35 percent to 45 percent of all American households. Gun carrying is both rarer and, if required to be done openly, more likely to viscerally worry observers. But mere gun ownership, if disclosed to the government rather than to the public at large, is not likely to yield a harsh government reaction, and registration requirements are thus unlikely to deter ownership by the law-abiding. (I set aside the question whether making gun ownership or concealed carry license records public under state open records acts might be unconstitutional.)

It's true that certain kinds of guns are rare and especially unpopular. But as I've argued above, the right to bear arms in self-defense should be understood as protecting a right to own some arms that amply provide for self-defense, not a right to own any particular brand or design of gun. (In this respect, it differs from the right to speak, which includes the right to convey the particular viewpoint one wishes to convey. Many kinds of arms are fungible for self-defense purposes in a way that viewpoints are not fungible for free speech purposes.)

It is not impossible that the government will want to go after gun owners, chiefly to confiscate their guns. This could happen if the government shifts to authoritarianism, and thus doesn't care about constitutional constraints and at the same time wants to seize guns in order to diminish the risk of violent resistance. Or it could happen if a future Supreme Court concludes the individual right to bear arms is not constitutionally protected, and Congress enacts a comprehensive gun ban. Some have argued that the Free Speech Clause ought to be interpreted from a "pathological perspective," with an eye towards creating a doctrine that would serve free speech best even in those times when the public, the government, and the courts are most hostile to unpopular speakers. Should the Second Amendment be interpreted the same way?

Here we may be getting to a topic that's outside the scope of this Article, because it requires us to think about whether the Second Amendment retains a deterrence-of-government-tyranny component as well as a self-defense component. I'm inclined to be skeptical of the ability of either constitutional doctrine or private gun ownership to constrain the government in truly pathological times. I'd like to think that either or both would provide a material barrier to such pathologies, but I doubt that this would in fact be so, especially given the size and power of modern national government. Nonetheless, figuring this out requires thinking through the deterrence-of-government-tyranny rationale, something I have not done for this Article.

For now, I'll leave things at this: The tracking requirements likely don't themselves impose a substantial burden on the right today. Such tracking requirements aren't generally unconstitutional as to other rights, though they are sometimes unconstitutional as to some rights. And the key question is the extent to which current doctrine should be crafted with an eye towards a future time when the doctrine or government practice may be very different than it is today.

J. Aldridge:
"Or it could happen if a future Supreme Court concludes the individual right to bear arms is not constitutionally protected, and Congress enacts a comprehensive gun ban."

Wasn't that the entire purpose of the 2A, a security against congress enlarging their powers in order ban guns?

These amendments, in the words of Madison, were "restrictive &explanatory amendments." Madison says, all of these amendments indicated a "jealousy of the federal powers, and an anxiety to multiply securities against a constructive enlargement of them."
4.10.2009 9:35am
Rr:

For now, I'll leave things at this: The tracking requirements likely don't themselves impose a substantial burden on the right today.


Hold on - didn't the local government confiscate guns in New Orleans during Katrina? That very much has an impact on one's ability for self-defense. This was, I assume, justified as being 'for the greater good' and 'for the protection of law enforcement'. If I am left to defend myself during a riot (L.A., anyone?) or a natural disaster, the last thing I need is for the government to check the database and come confiscate my weapons.

The problem is not that licensing in itself is bad. It's the government's 'promise' to do one thing, and then do something completely different that is the issue.

And let's face it - things like 'ballistic fingerprints' and microstamping are by and large useless for short-term gains (unless everyone has to come in and 'register' their existing guns, setting aside for a minute that the 'fingerprinting' is very easily defeated by minor mods to a weapon).

We already have a registry for the weapons that the government purports pose the greatest danger (NFA weapons). This whole registration thing reeks of being supported by the same kind of 'feeling' arguments that support the sex offender registry - not dangerous enough to jail for life, and we can't do anything else within the legal framework, so let's make your life difficult and see if that helps even one iota.
4.10.2009 9:36am
green-grizzly (mail):
What purpose other than confiscation could tracking have? Where tracking has been imposed it has shown to be worthless. I understand the Canadians are presently working at getting rid of their scheme.

In other countrys where they track firearms, there is substantial noncompliance. Criminals still have ready access to firearms. Laws requiring registration of weapons does not impact criminals because - duh - they are not law abiding. And the stockpile of weapons in those other countries pales in comparison to what we have here. There was a recent law review article discussing this issue.

Those few jurisdictions in the US where you need some kind of permit to purchase a firearm are not exactly havens from crime. They tend to be the high crime rate jurisdictions.

This whole article is very etheral, with no examination of real world consequences, historical examples and slippery slopes.
4.10.2009 10:12am
Earl T (mail):

For now, I'll leave things at this: The tracking requirements likely don't themselves impose a substantial burden on the right today.


Wrong! Requiring installation of these high tech "doo-dads" (which have absolutely no history of either preventing or solving any crime---not one!) is designed for the sole purpose of making ownership of such weapons more expensive; a tactic aimed at currently law biding citizens only! (I say "currently", since I can't vouch for future prospective behaviors which could arise as a reaction to an over-bearing tyrannical government.)

As is the case with criminal ID thieves and forgers, the means to defeat virtually any high tech preventative measures are readily available to criminals who only laugh at micro-stamping or bullet and cartridge ID registration schemes.

Besides, didn't a national scientific group just issue a study showing much of this forensic work on weapons ID was severely flawed anyway? So-called experts can't regularly match bullets with gunbarrels, despite what is seen on "NCIS" and other TV crime-fantasy programming.
4.10.2009 10:24am
Rr:

What purpose other than confiscation could tracking have?


Taxation and deterrence. If we indeed buy into the premise that levying taxes to support administrative tasks associated with the rights exercise are permissible, then enacting tracking and registration requirements might make it juuuust unaffordable enough. Also, law-abiding citizens who favor their privacy might be dissuaded from purchasing firearms - I remember seeing a proposal where such a registration system would also include you granting LE the implicit right to come 'inspect' your home. If that isn't a sufficient deterrent, then I don't know what is.

I think this analysis should include such factors, just as the earlier taxation analysis should have included existing NFA taxes, their purpose, their effectiveness, and how they limit one's ability for self-defense or taking up arms against a corrupt government.
4.10.2009 10:24am
Bama 1L:
Note that Professor Volokh is confining his inquiry to an individual self-defense right. If you don't like his conclusions, it's likely that you think there's something to the 2d Amendment besides that. For example, a collective right of rebellion against tyranny would imply a stronger anti-registration presumption.
4.10.2009 10:25am
pintler:

The tracking requirements likely don't themselves impose a substantial burden on the right today.


IMHO, that's a good analysis.


Wasn't that the entire purpose of the 2A, a security against congress enlarging their powers in order ban guns?


A lot of people think so, including me, but Heller talks about self defense, not tyranny defense.

I think a population of skilled marksmen is a substantial deterrent, but I'm not sure registration matters all that much - by the time a ruthless gov't is ready to start the raids, they will just raid their opponents on some pretext, whether they have knowledge of firearms from registration or not. At least one instance is described in detail in "The Nazi Seizure of Power: the experience of a single German town 1930-1935" by William Allen. It is a tediously detailed account of how Hitler parlayed his appointment as Chancellor, from a party that wasn't a majority, into an absolute dictatorship. The short version is that his opponents (the Social Democrats) never got around to jumping out of the slowly warming pot.

I think it is more likely that some people would try to use registration as a general 'discouragement by hassle' mechanism, as described in
this article . Part III is especially interesting.
4.10.2009 10:25am
Brett Bellmore:
I think the key point here that has to be considered is the track record of bad faith enforcement of gun regulations. "Reasonable regulation" of guns is every bit as much a farce as "separate but equal"; In practice the regulations aren't reasonable, any more than separate but equal was equal.

The courts eventually recognized the history of bad faith in the case of racial regulations, but I'm not holding my breath for them to recognize the history of gun control.
4.10.2009 10:26am
Dilan Esper (mail) (www):
the key point is prof. volokh's argument against the pathological perspective. a government truly bent on imposing tyranny will go ahead and do house to house searches and mass arrests to confiscate guns. at that point, registration is the least of gun owners' worries.

also, this stuff about registration being intended to facilitate confiscation is quite silly. the big reason people support tracking is to make it easier to solve crimes by identifying the weapon used. you may or may not think that will work, but that is the reason lots of people want a gun registry.
4.10.2009 10:33am
djung:
For now, I'll leave things at this: The tracking requirements likely don't themselves impose a substantial burden on the right today.

The Katrina example given above was a (horrible) example of government not needing registration in order to confiscate. They just went door-to-door. Rather than resisting, the homeowners handed them over.

Not to beat a dead horse here, but only politicians, lawyers and judges care about this. Should the government institute further bans, mandatory licensing and/or registration of currently-owned weapons, the amount of civil disobedience is going to be immense. When the law is wrong beyond acceptance by the public, they will not comply with it. And they will resent being made felons for acts that they don't consider morally wrong.

This would not be a burden on the right to self-defense? Possibly true, though I don't agree. Instead, it erodes the citizens' belief in the law. When that's gone, the society itself is gone as well. A society only consists of a mutual agreement that it does so.

And I agree with a comment made yesterday; your words in italics above will be used out of context by the victim disarmament lobby as evidence that learned legal authorities agree that registration is no problem. Statements like this are part of the problem. Not part of the solution.
4.10.2009 10:36am
Bama 1L:
Indeed, if the only purpose of the 2d Amendment is to protect law-abiding citizens like me from crime, then registration and tracking have to be allowed. They will protect me from crime by making it slightly easier to solve certain crimes, thus taking some criminals off the street and deterring others. They won't impair my right of self-defense, because I can comply and still defend myself. Indeed, I may be able to do so with greater confidence, because I've already complied with the registration laws and am off to a good start with the authorities in explaining my defensive use.

So you have to develop another rationale for the 2d Amendment. Scalia did not do 2d Amendment enthusiasts the favor they think when he defined gun rights so narrowly.
4.10.2009 10:41am
Monty:
I've always wondered, in states that require ballistic fingerprinting (regardless of wether it works), is there anything to prevent a gun owner from purchasing a new barrel out of state and replacing thier fingerprinted one? Same question for any other components that provide the fingerprint?
4.10.2009 11:02am
cboldt (mail):
-- Scalia did not do 2d Amendment enthusiasts the favor they think when he defined gun rights so narrowly. --
.
He gave a favor to the government-power camp, with his sweeping dicta and his clearly erroneous take on the holding of Miller.
.

I'll add my agreement to the comment that Professor Volkoh's article will be read as being supportive of gun registration (in that he finds it easily within the governments power under the constitution, and not in any way representing an infringement of the 2nd -- not meaning he PERSONALLY agrees). I don't see the conclusion that "The tracking requirements likely don't themselves impose a substantial burden on the right" as being out of context, contrary to the analysis, or limited.
4.10.2009 11:04am
Fact Checker:
Hold on - didn't the local government confiscate guns in New Orleans during Katrina?

New Orleans was under a mandatory evacuation order. Anyone still in New Orleans was violating the law. There were no "law abiding citizens" left in New Orleans to confiscate guns from. Do you object to guns being taken away from people who are breaking the law?

In other countrys where they track firearms, there is substantial noncompliance. Criminals still have ready access to firearms.

The rate of firearm crime in such countries--at least those that can be reasonably be compared demographically to the U.S.--, even those like Switzerland where the rate of ownership is exceedingly high but gun crime is very low, seems to indicate otherwise. Even Mexico, where the crime and gun crime rate is soaring, looks to the U.S. as its supplier of choice. It is apparently much easier for Mexican drug lords to purchase guns in the U.S. and smuggle them across the border than it is to try and skirt the draconian Mexican gun laws.
4.10.2009 11:18am
cboldt (mail):
-- New Orleans was under a mandatory evacuation order. Anyone still in New Orleans was violating the law. There were no "law abiding citizens" left in New Orleans to confiscate guns from. --
.
However, the US District Court found the government lacked the right to confiscate the guns. IOW, presence of an evacuation order is not the same as a "we have the right to seize your property" order.
.
-- Do you object to guns being taken away from people who are breaking the law? --
.
See the link in the post above that talks about the interesting "Part III" Some dude failed to notify the NY authorities of a change of address (where said notification must be made in person), and as a result he was "breaking the law" and his guns were confiscated. Obviously, you are not opposed to this. I hope the cops take your car/bicycle/stereo the next time you break the law, e.g. speeding, jaywalking. Of course, only if you are in fact a lawbreaker in any of those ways.
4.10.2009 11:31am
Soronel Haetir (mail):
At least at the national level I believe there is another source for registration requirements. The militia clauses would seem to provide ample room for registration, making it easier to actually call out an armed militia rather than a hodgepodge of the armed and unarmed. As well as confiscation to give those arms to the more willing.

Do I like such an argument? No. But I believe it's actually legitimate.
4.10.2009 11:43am
Fact Checker:
Obviously, you are not opposed to this. I hope the cops take your car/bicycle/stereo the next time you break the law, e.g. speeding, jaywalking. Of course, only if you are in fact a lawbreaker in any of those ways.

Anyone who stayed in New Orleans after Katrina was a threat to themselves and the responders trying restore order. There were no utilities or services of any kind. It is hardly the same situation as a technical violation of the law.

Responding to a gunshot incident, even if no one was injured, would have taxed emergency responders beyond their capabilities. An actual gunshot wound would have been catastrophic, as the nearest functioning hospital was more than ninety miles away in Baton Rouge. And the situation was so critical there that the Pete Marovich Center, where LSU plays basketball, had been turned into a makeshift medical center.
4.10.2009 11:50am
33yearprof:
<blockquote>
Even Mexico, where the crime and gun crime rate is soaring, looks to the U.S. as its supplier of choice. It is apparently much easier for Mexican drug lords to purchase guns in the U.S. and smuggle them across the border than it is to try and skirt the draconian Mexican gun laws.
</blockquote>

Obviously, <i>Fact Checker</i>, doesn't practice what he preaches.

The overwhelming majority of guns (83%) used by the local Narco-Trafficors in Mexico are MILITARY weapons which come from internal or external military sources. You can't purchase RPGs, full-auto AKs, or grenades in any Arizona gun store.

See: http://tinyurl.com/da4xu8
4.10.2009 11:52am
James Gibson (mail):
The question that should be asked is why the founders didn't register all guns if that was what they wanted. The gun control crowd says they not only had registration but a national census in 1803 (in the form of the 1803 militia return). But then again the gun control crowd says that private gun ownership in that era was non-existent and the 1792 militia act was virtually ignored by the year 1800 (Perpich Vs Dept of Defense) making it difficult to even explain the existence of the 1803 return (or the 1802, 1804, 1806, 1807, 1809, 10, 12, etc).

Tracking is foiled by the simple problem that people have to move. Jobs end, family dies, and people move to a new area for a fresh start. When the founders required that all property owners be registered in the militia it wasn't to register their guns (some didn't own any). It was because men with property were less likely to suddenly leave the community. And the idea that militia registration was a registration of guns only puts a good twist on the draft registration I had to do in 1980. The militia return tracked men and their compliance with the militia act requirments, not their guns.
4.10.2009 12:00pm
James Gibson (mail):
Soronel Haetir said The militia clauses would seem to provide ample room for registration, making it easier to actually call out an armed militia rather than a hodgepodge of the armed and unarmed. As well as confiscation to give those arms to the more willing.

Which clause, the one that gives Congress the right to call out the militia to repell invasion, or put down a revolt. Or the one that gives Congress the right to organize, arm and discipline the militia.

In both cases the clauses only apply to the militia. If you interpret militia as the grand body populace of men in the United States (Selective Service Bureau)then you could conceivably call out unarmed men. But if you go on the gun control side that militia is a limited body who are the only ones allowed arms then you can't call out unarmed men, nor can you strip the arms from the only approved people to arm "more willing." Besides the gun control side says the arms are not personal, but state arms kept in an armory and only issued at State order. Kind of ridiculous to register arms that are in a State armory.

Art 1 Sec 8 Cla 15 only allows Congress the ability to summon the militia of the United States (which is no longer defined by Corpus Juris Secundum).

Art 1 Sec 8 Cla 16 only allows a certain amount of regulation of said militia (initially met by the original militia act of 1792).

The second Amendment is the joker. Does it insure an individual right, or just prevent the government from regulating the militia out of existence.
4.10.2009 12:16pm
Guest12345:

This whole registration thing reeks of being supported by the same kind of 'feeling' arguments that support the sex offender registry - not dangerous enough to jail for life, and we can't do anything else within the legal framework, so let's make your life difficult and see if that helps even one iota.


The good news on this subject is that now they've moved on to holding offenders who have completed their sentence for an indefinite period because "they are too dangerous." This is without trial, etc.
4.10.2009 12:18pm
pintler:

Anyone who stayed in New Orleans after Katrina was a threat to themselves and the responders trying restore order. There were no utilities or services of any kind.


I was once flooded out. We lived in the garage for a couple of
weeks while the house dried out, new carpets were installed, and so forth. I spend a couple of months a year in a tent somewhere in the Rocky Mountains. As late as the 1960's, my Grandparent's farm had an outhouse and water was carried in from the well in buckets. 'utilities or services' are a recent phenomenon, and not having them hardly makes you a threat to yourself or others, and even if you thought it was unhealthy for people to be there, confiscating their guns hardly made them safer, any more than taking their first aid kit or water filter would.

There were entire neighborhoods in N.O. that were high and dry.
4.10.2009 12:29pm
Soronel Haetir (mail):
James Gibson,

The two taken together, in conjuction with a militia of the body politic.

It wouldn't require much of a change in law to make everyone who is already legally capable of owning arms part of the militia.
4.10.2009 12:30pm
cboldt (mail):
-- It is hardly the same situation as a technical violation of the law. --
.
Oh. So now it is YOU who are opposed to guns being taken away from people who are breaking the law.
.
I'm just yanking your chain for fun. You're part of a small minority that persists in making the discredited assertion that the firearms confiscation was legal/constitutional. You probably also feel it is good policy.
4.10.2009 12:32pm
Nick B (mail):
In my opinion you badly misrepresent or misinterpret "tracking requirements" by implying they are the same, or substantially similar, to Parade permits and similar. Parade permits and similar *only* apply to action in or on public property, while gun registration almost never applies to action in or on public property. A closer analogy would be a requirement for a permit to speak about politics in your home, or a requirement to license preachers inside their own church (or any other private property).
Nick
4.10.2009 12:41pm
Fact Checker:
There were entire neighborhoods in N.O. that were high and dry.

Where were you in September 2005? Do you know what the hell you are talking about?
4.10.2009 1:31pm
greyarcher315 (mail):
Tracking requirements may be within the letter of the law, but they are quite often used to restrict or hamper legal possesion of fire arms. I own long guns, but refuse to go through all the hoops that New York State and Monroe county want so that I can get a pistol permit. 6 months plus to get one? That does create an undue burden, at least in my mind.
So it does nned to be kept in mind that tracking requirement should only be allowed if the law is written in such a way as to prevent, or at the least limit, the abuses that the government will create with them.
4.10.2009 1:33pm
Kirk:
Dilan,
a government truly bent on imposing tyranny will go ahead and do house to house searches and mass arrests to confiscate guns. at that point, registration is the least of gun owners' worries.
You are sadly lacking in imagination, but I'll help fill in the gaps. Which is worse?

1. Police squad shows up at your house, says "We're here to search for guns", and proceeds to do so.

2. Police squad shows up at your house, hands you a piece of paper, says "Here's a list of all the guns we have registered to you: hand them over!" And of course they do a supplemental search too, just in case you have some unregistered ones.
4.10.2009 1:34pm
Fact Checker:
I'm just yanking your chain for fun. You're part of a small minority that persists in making the discredited assertion that the firearms confiscation was legal/constitutional. You probably also feel it is good policy.

Contrary to what a very conservative federal court decided, I think it was legal and constitutional (although because of a horrible piece of legislation, it no longer is). Anyone who was in New Orleans after Katrina could have legally been arrested--they had no business being there.

But--and this may seem amazingly bizarre to you--I think it was horrible policy. It was horrible policy because it led to just this type of debate and the stupid law that now prohibits the confiscation of guns in declared national disasters.
4.10.2009 1:40pm
Kirk:
Monty,

No, and in addition normal wear will change these characteristics, too. The successes that are had with ballistics identification almost exclusively involve bullets or casings taken from the crime scene, and a firearm confiscated shortly thereafter.

Soronel,

If the government(s) started taking militia duty seriously, I'd have no problem with a requirement that I register my duty weapons, as they would have a clear and obvious interest in me showing up with a standard rifle and pistol, in good working order, shooting one of the standardized calibers. But why this would translate into an interest into what other firearms I might or might not own (other than asking "Do you have any additional AR's or 1911's we could requisition to issue to others?") is beyond me.
4.10.2009 1:47pm
Kirk:
Fact Checker,

Sure, there's nothing wrong with governments issuing evacuation orders during natural disasters. But mandatory orders, with violators subject to arrest? Sorry, as a matter of principle I'm completely opposed to that: it goes right back to the question of whether we own the government or it owns us.
4.10.2009 1:51pm
Fact Checker:
Where were you in September 2005? Do you know what the hell you are talking about?

As I look at this I realize that some of you hyper-technical types will jump on me and rightly point out that all of New Orleans did not flood. True.

But it was three and a half full weeks before there was any electricity in the city in New Orleans. Over a month before there was potable water. And that was all on the West Bank. The East Bank did not get power until October. Sewer, water, and gas took even longer.

When I returned to New Orleans one month after the storm there was not one retail store open in the city. But true to New Orleans, there were a handful of bars and restaurants that were open (in fact a bar or two in the French Quarter had managed to stay open throughout the entire month of September).
4.10.2009 1:52pm
Kirk:
(in fact a bar or two in the French Quarter had managed to stay open throughout the entire month of September).
A pity they all weren't arrested, eh?
4.10.2009 1:55pm
Larrya (mail) (www):
People have a right to vote, under all state constitutions and, in practice, under the federal Constitution, but they may be required to register to vote.
Carrying this analogy a step further, from long experience we gun owners view gun registration the same way Blacks view poll taxes and literacy tests. All pain, no gain.
But as I've argued above, the right to bear arms in self-defense should be understood as protecting a right to own some arms that amply provide for self-defense, not a right to own any particular brand or design of gun. (In this respect, it differs from the right to speak, which includes the right to convey the particular viewpoint one wishes to convey. Many kinds of arms are fungible for self-defense purposes in a way that viewpoints are not fungible for free speech purposes.)
I think here you're conflating method with message. I believe you would oppose on free speech grounds a law that said free speech is protected if people can write a letter to the newspaper editor, therefore they can be prohibited from appearing on TV or distributing their own publication.

On self-defense, there are big differences between a rapist entering your home, a carjacker attacking you on a city street, a mob trying to loot your store during a riot, and wild animals in a rural area. Different tools are needed in each situation.
A government truly bent on imposing tyranny will go ahead and do house to house searches and mass arrests to confiscate guns. at that point, registration is the least of gun owners' worries.
A government stupid enough to start a house-to-house search among a population as independent and well-armed as in the U.S. wouldn't last long enough to be a serious problem. There simply aren't enough soldiers or cops to stand a chance of doing the job. The problem with registration is the incremental approach. First, "We only want to ban 'assault weapons.'" Then, "People don't really need handguns." Then, "Sniper rifles" and "50 caliber anti-aircraft guns" and "high-capacity repeating shotguns" and...
The big reason people support tracking is to make it easier to solve crimes by identifying the weapon used. You may or may not think that will work, but that is the reason lots of people want a gun registry.
In the first place, I would propose that a law limiting a Constitutional right should be required to provide some benefit that outweighs the restriction. Gun registration's abject failure to solve crimes should invalidate this argument. In the second place, passing an anti-crime law that cannot be applied to criminals should be particularly suspect. (Haynes v U.S.: felons can't be prosecuted for possession of unregistered firearms, since registering them is self-incrimination.)
New Orleans was under a mandatory evacuation order. Anyone still in New Orleans was violating the law. There were no "law abiding citizens" left in New Orleans to confiscate guns from. Do you object to guns being taken away from people who are breaking the law?
Then why did the cops take the guns but leave the people in the evacuation zone?
4.10.2009 2:00pm
Fact Checker:
Sure, there's nothing wrong with governments issuing evacuation orders during natural disasters. But mandatory orders, with violators subject to arrest? Sorry, as a matter of principle I'm completely opposed to that: it goes right back to the question of whether we own the government or it owns us.

Well then you are the type of idiot that thinks you can ride out a hurricane that makes mandatory evacuation orders necessary. Some people are too stupid to realize that by staying put they are not only putting their own life at risk but putting the lives of others, including hard working government workers who want to confiscate your guns, at risk. And after they have been plucked off their roof by the Coast Guard (who don't immediately present them with a bill for tens of thousands of dollars for their rescue) they complain about how high their taxes are and how the government is worthless.
4.10.2009 2:02pm
Fact Checker:
Then why did the cops take the guns but leave the people in the evacuation zone?

Actually, taking their guns was meant to be an incentive to get them to leave. The cops were going door to door trying to get people to leave. They told them "please leave, but if you don't leave, you can't keep your guns". They only actually confiscated about 200 guns. The whole gun confiscation thing was such a PR disaster as well as being a waste of manpower and time they stopped it after less than two days. Something like 1500--2000 guns were collected, the balance being unsecured guns from abandoned homes and gun shops.
4.10.2009 2:09pm
Fact Checker:
Then why did the cops take the guns but leave the people in the evacuation zone?

If the cops had arrested these people, what exactly would they have done with them and where would they have held them?
4.10.2009 2:12pm
gattsuru (mail) (www):
It's not clear that the violation of a mandatory evacuation order is an actual legal violation; a quick reading of local law does not seem to contain a method to punish those who violate such an order.
But mere gun ownership, if disclosed to the government rather than to the public at large, is not likely to yield a harsh government reaction, and registration requirements are thus unlikely to deter ownership by the law-abiding

But is that the case? What about places where the information is made public by the government to the people, such as the multitude of times CCW permits or Massachusetts gun ownership permits have been made public? It seems like no small deterrent toward gun ownership.
4.10.2009 2:16pm
PubliusFL:
Fact Checker: Actually, taking their guns was meant to be an incentive to get them to leave. The cops were going door to door trying to get people to leave. They told them "please leave, but if you don't leave, you can't keep your guns".

If that made sense, while leaving the people in place they should have confiscated any food or fresh water in the home as well. THAT would be an even better incentive to get them to leave!
4.10.2009 2:19pm
PubliusFL:
In other words, "please leave, but if you don't leave, you can't eat." Maybe they could also have confiscated the insulin of diabetes patients, any other prescription medication, etc.
4.10.2009 2:20pm
Brett Bellmore:

Well then you are the type of idiot that thinks you can ride out a hurricane


It's simply a fact that people routinely manage to ride out hurricanes. Whether any particular person really needs to evacuate is very much dependent on their particular situation, it's not like you come back from the evacuation to find the whole area completely stripped of habitable structures.
4.10.2009 2:24pm
Fact Checker:
If that made sense, while leaving the people in place they should have confiscated any food or fresh water in the home as well. THAT would be an even better incentive to get them to leave!

Actually, that, and the fact that people quickly realized that their toilets weren't going to be working for a while, was what got people to leave.

Most of the people who initially stayed ended up leaving when they realized that the water, electricity and gas wasn't going to be back on by the end of the week. So once their week's worth of bottled water ran out and the temperature stayed in the 90's for that first two weeks of September, people trickled out of the city as they contacted friends and family they could stay with. There were a few diehards. My neighbor behind me stayed the whole time, but he sent his wife and children to family in Texas. But I lived on the West Bank. We never lost water (although it wasn't safe to drink for the first couple weeks) or sewer. I don't know what the people on the East Bank, who didn't have any water, did.
4.10.2009 2:32pm
Fact Checker:
It's simply a fact that people routinely manage to ride out hurricanes. Whether any particular person really needs to evacuate is very much dependent on their particular situation, it's not like you come back from the evacuation to find the whole area completely stripped of habitable structures.

It's simply a fact that people routinely manage to drive drunk. Whether any particular person really needs to avoid driving drunk is very much dependent on their particular situation, it's not like you come back from the bar to find the whole street covered with dead children.
4.10.2009 2:41pm
Fact Checker:
Maybe they could also have confiscated the insulin of diabetes patients, any other prescription medication, etc.

Considering insulin needs to be refrigerated, that there was no electricity, gasoline or natural gas for generators, and no pharmacies open, any diabetics in the city would have had to have had to have to gotten out pretty damn quick.

You people really just can't grasp what it was like, can you?
4.10.2009 2:47pm
Rr:

You people really just can't grasp what it was like, can you?


I think we can circle back and grasp that confiscating guns was not OK. While you disagree, I like to believe that being able to keep firearms when they might be needed most makes sense when you accept that self-defense is one of their protected uses.
4.10.2009 2:51pm
Earl T (mail):
For all of you who believe "ballistic fingerprinting" and gun registration are so valuable as tools of law enforcement, please cite the number of cases where these tools have been helpful, let alone crucial, in solving real crimes, in those jurisdictions where such requirements exist!

Then compare those statistics against the total number of crimes involving a gun.

Come on! You all have access to Google or other search engines, this should be SIMPLE!
4.10.2009 2:54pm
Dilan Esper (mail) (www):
1. Police squad shows up at your house, says "We're here to search for guns", and proceeds to do so. 2. Police squad shows up at your house, hands you a piece of paper, says "Here's a list of all the guns we have registered to you: hand them over!" And of course they do a supplemental search too, just in case you have some unregistered ones.

Kirk:

Actually, the person lacking in imagination is you. Authoritarian regimes are quite ruthless. They ransack houses. They torture people. They arrest people without proper grounds and detain them incommunicado.

A ruthless regime bent on disarming the populace has a lot more tools at its disposal than a gun registry.
4.10.2009 3:17pm
PubliusFL:
Fact Checker: Considering insulin needs to be refrigerated, that there was no electricity, gasoline or natural gas for generators, and no pharmacies open, any diabetics in the city would have had to have had to have to gotten out pretty damn quick.

You people really just can't grasp what it was like, can you?


Insulin for near-term use can go without refrigeration for a while. Anyways, I agree that it was stupid for most of the people who ignored the evacuation order to do so. But it was also stupid to leave people there but take their guns away as an "incentive to leave." Why not also take away food, water, and medication? If you don't like the insulin example, pick a medication that doesn't require refrigeration. It reminds me of when my torts professor suggested that in theory, motor vehicle fatalities could be reduced by replacing airbags with a big steel spike in the center of the steering column. As an "incentive to drive safely," you see.
4.10.2009 3:17pm
Dilan Esper (mail) (www):
In both cases the clauses only apply to the militia. If you interpret militia as the grand body populace of men in the United States (Selective Service Bureau)then you could conceivably call out unarmed men. But if you go on the gun control side that militia is a limited body who are the only ones allowed arms then you can't call out unarmed men, nor can you strip the arms from the only approved people to arm "more willing."

This is a false dichotomy. It is entirely possible that the correct interpretation of the Second Amendment pleases neither side in the debate, i.e., that it creates an individual right (because it envisions the necessity of an armed populace, i.e., a militia, to guarantee the security of a free state), but gives the government substantial authority to organize, train, discipline, and regulate that armed populace.

The only reason this interpretation doesn't get more traction is that neither side in the polarized gun control debate likes it very much.
4.10.2009 3:20pm
Dilan Esper (mail) (www):
For all of you who believe "ballistic fingerprinting" and gun registration are so valuable as tools of law enforcement, please cite the number of cases where these tools have been helpful, let alone crucial, in solving real crimes, in those jurisdictions where such requirements exist!

Well Earl, there are 103 California criminal appellate opinions (i.e., the "people" were a party) which mention the word "gun" within 5 words of "registered". And most of those were cases where the registration of the gun was evidence that tied the criminal to the crime.

Note as well that this is just one jurisdiction, and these are just appellate opinions. There were probably plenty of cases that were plea-bargained (not tried) or tried and not appealed.
4.10.2009 3:38pm
Dilan Esper (mail) (www):
By the way, I should mention that the database of nonpublished opinions in California only goes back a few years, and therefore probably only contains 15 or 20 percent of all nonpublished Court of Appeal opinions since we started registering guns. Further, 90 percent of cases never make it to trial, let alone appeal. Therefore it is entirely possible that the actual number of cases in which the registration of a firearm was an important piece of evidence is quite possibly upwards of 5,000 in California alone.

Lesson to gun rights advocates: it's better to argue that the costs of a gun registry outweigh its benefits than it is to claim that gun registries never help solve crimes.
4.10.2009 3:48pm
pintler:

But it was three and a half full weeks before there was any electricity in the city in New Orleans. Over a month before there was potable water.

Considering insulin needs to be refrigerated, that there was no electricity

You people really just can't grasp what it was like, can you?


I live in earthquake country, and keep a month of water on hand. For two months a year we are hiking and make all our potable water w/ a $75 filtration pump, available in any sporting goods store, so after the month is up, and there hasn't been any rain for the rain barrel, I'd have to hike downhill to the lake once in a while.

Just for yuks, I have a generator that will keep the fridge running for 2 qts a day of gas. The various vehicles will have at least 10 gallons of gas, so I can keep the beer cold for three weeks.

What I can grasp is this: lack of utilities simply isn't a hardship to me. Lack of firearms, during the kind of social disorder I heard about after Katrina, is potentially a fatal hardship.

I don't mean to trivialize what you went through. I have been flooded out myself, although fortunately w/o the disorder that N.O experienced. I can deal with camping out w/o hardship, and I can even deal with a breakdown in law and order, but at my advanced age I really don't want to engage in hand to hand combat with young crooks.
4.10.2009 4:21pm
Soronel Haetir (mail):
Dilan Esper

Your comment about a strong individual right coupled with Congressional powers to regulate the militia is basically where I was headed.

Just because the feds have chosen to neglect the militia doesn't mean they couldn't take up the mantle again. It would be an extremely unpopular move though I suspect.

Those considerations are also why my initial post putting forward the idea specified the gederal government as the tracking body. Without federal legislation on forming the militia I'm not sure states have such powers. They would at least need to use some other grant of power to get there.
4.10.2009 4:30pm
John A (mail):
A bit off-topic, but you may want to use another example in place of this:


Likewise, the Constitution has been interpreted to secure a right to marry, but the government may require that people get a marriage license.


Huh? If they want certain "rights" and/or "privileges" (such as visiting a "spouse" or "partner" in many ICUs - hospitals often restrict visits to "immediate family") yes, but I am pretty sure no State will stop you from being "married" without a State license as long as you do not claim any of the "benefits" regulated by the State.

In my state, the last time I looked up the law, the effect was that you could be married in a Shinto ceremony - you only needed a license, and another ceremony, for such legal considerations.

REgistering a "marriage" or "civil union" with the State is, I think, optional.
4.10.2009 4:38pm
zippypinhead:
Professor Volokh, uncharacteristically for your work in general, this part of the article screams "oversimplification." two thoughts:

1. Whether "tracking regulations" are benign really depends on how they're applied. A requirement simply to register the serial number of one's firearm and to report that you no longer have it when you dispose of it someday might not be Constitutionally impermissible under your formulation. But a "tracking regulation" like Chicago's, in which a legally-owned firearm permanently becomes contraband if the owner happens to miss the deadline for annual re-registration, is probably pretty far over the wrong side of the Constitutional line, if one assumes the Second Amendment means anything. Ditto for any regulation the practical effect of which is to block you from registering an otherwise-legal firearm, like Chicago's prohibition on taking possession of a firearm before registering it (arguably making CMP purchases or acquisition by gift or inheritance impossible), or D.C.'s mis-application of the California approved list that appears to retroactively prohibit registration of the exact model revolver Dick Heller sued over.

2. I know you don't like the way the standard of review question has been teed up for Second Amendment purposes, but it strikes me that your entire argument about "tracking regulations" turns on the standard of review that's applied. Looking at this type of regulation under a traditional SoR formulation: If one assumes a "rational basis" standard, then you're clearly right. Only the majority in Heller clearly implied that a mere rational basis standard would be improper for this enumerated right. If, on the other hand, one applies "strict scrutiny," you're wrong - the burden would shift to the state to prove both that there's a compelling state interest in the regulation, and that the regulation is as narrowly tailored as possible to meet the compelling interest. I would submit that, given the available empirical evidence from jurisdictions with no form or firearms registration, almost any "tracking regulation" would fail under both prongs. As for the "intermediate scrutiny" standard posited by the Solicitor General in Heller - whatever that means - I have no idea.

And yes, I agree with other comments that your main point is inevitably going to be distorted -- brace yourself to read a Brady Campaign press release that starts with the phrase "even such a noted gun rights enthusiast as Professor Eugene Volokh believes that registration, ballistic fingerprinting and microstamping is appropriate..."
4.10.2009 4:39pm
gasman (mail):

If you must walk alone, walk with a strong, confident stance.

Strong advice from a University. Is there any shred of evidence that this is effective, or is it merely that people walking with strong confident stances (and can one walk and stance at the same time) will feel better about their safety even though they are no safer.
4.10.2009 4:47pm
pintler:

If you must walk alone, walk with a strong, confident stance.


Strong advice from a University. Is there any shred of evidence that this is effective,


Crooks, like any predator, want to get what they want at minimum cost, and have an incentive to pick the easiest prey. A mugger's life is a lot harder if everyone fights back, even if he wins, so he has substantial incentive to select nonresisting victims. This is one of the reasons so many muggings start with 'can you give me directions' or whatever - they want to size you up, and if you don't seem scared, they wonder why not.

At least that is what the instructors at my classes have said. The one time I have had a possible incident while carrying, my training kicked in. Instead of worrying about what the gentlemen were planning to do to me, I was planning what I would do to them if things escalated. I don't know what they were thinking, but they abruptly lose interest in me. I never touched a gun, put my hands in my pockets, or any thing else hinting I was armed.
4.10.2009 5:11pm
Rr:

Is there any shred of evidence that this is effective,


I'm going to guess: it depends. There may be situations where one's posture can help. One of my favorite works on the subject, "the seven steps to personal safety" notes this:


One serial killer, Ted Bundy, reputedly said that his initial selection was based on whether his potential victims were alert and aware of their environment. If they were alert and aware of what was going on around them, then he would look for someone else.


They also note that criminals often make a risk decision and will act when they decide you're an easy target.

What might happen is that when you decide to walk confidently, you are automatically no longer in condition white, and your improved awareness may help keep you out of trouble.
4.10.2009 5:15pm
Kirk:
Dilan,

Why yes, authoritarian regimes often are quite ruthless. What I don't understand it why you think it wouldn't be harder to conceal weapons from them if the police start out with a complete list of everything you own, right down to the serial numbers.
4.10.2009 6:06pm
Dan M.:
So, if the Supreme Court has decided that contraception is a Constitutional right, would laws to keep public records of anyone who purchases contraceptives be Constitutional? Can we keep a registry of gay people? Would that infringe upon the right of people to purchase contraceptives or have gay sex?

If someone can up with some rational basis to register gay people to control the spread of HIV, could we then arrest anyone caught having gay sex without a license?

I mean, is that simply silly, or would it actually be unconstitutional?
4.10.2009 6:41pm
Dan M.:
So, sure, you can't use the 2nd Amendment to declare tracking regulations unconstitutional, but I can't imagine how various privacy rights declared by the Supreme Court wouldn't extend to gun owners.
4.10.2009 6:44pm
Dilan Esper (mail) (www):
Why yes, authoritarian regimes often are quite ruthless. What I don't understand it why you think it wouldn't be harder to conceal weapons from them if the police start out with a complete list of everything you own, right down to the serial numbers.

I never said registration would have no effect at all. What I said was that registration is, in that situation, the least of the gun owner's worries. If the government is sufficiently repressive, it's not going to matter.

As I said above, Professor Volokh's rejection of the pathological perspective answers this spot on. We don't like to think of our rights this way (especially given the natural rights tradition reflected in the Declaration of Independence and bequeathed from Western enlightenment philosophy), but when the rubber meets the road, if the government is sufficiently intent on refusing to respect our rights, there isn't that much we can do about it unless a revolution is possible. In the nightmare scenario where you have an authoritarian government confiscating guns, the Second Amendment is basically a dead letter, whether or not there's a gun registry, in the same way that an authoritarian government wouldn't necessarily need speech licensing schemes to start imprisoning dissidents. This is why we the solution to the nightmare scenario is to not get there, rather than worrying so much about the mechanisms that are theoretically in place once we are there.
4.10.2009 6:51pm
Dan M.:
Gun registration simply a law that the cops can use to selectively prosecute as many people as possible. They pass a lot of ridiculous driving laws so that they can pull over anyone they want if they have an ulterior motive (apparently some states are trying to ban hands-free cell phones now...so presumably eventually they'll have probable cause to pull over anyone whose mouth is moving), and then they'll use gun registries to erode our rights in our homes, too.
4.10.2009 9:41pm
Dilan Esper (mail) (www):
Apropos of Dan's comment, I have to say that a lot of the feelings of gun owners about registration and tracking are entirely foreign to non-gun owners. I am not going to say gun owners are paranoid-- that's non-productive name calling-- but to many outside the gun rights movement, they certainly LOOK paranoid, with tales of confiscation, ulterior motives, jackbooted government agents, etc.

The thing I would ask gun owners is to understand-- and without in any way derogating from legitimate slippery slope worries about whether any particular gun control measure will lead to other, more restrictive measures-- that while there's a lot of people out there who want to ban guns, there's also a lot of people out there who do not want to ban guns but do think that because guns are associated with certain types of dangers, there is room to regulate them.

To be more specific, gun registration really is supported by a lot of law enforcement interests (police and prosecutors) across the country, and they are not doing it because they want to impose an authoritarian state or confiscate weapons. Nor is it because they can get their arrest count up by prosecuting registration offenses. Rather, they think it is a tool that can help them solve crimes.

When one assumes that every proposal to regulate guns is intended as a stalking horse for confiscation, it becomes impossible to have a rational discussion on this issue. And this issue needs all the rational voices it can get.
4.10.2009 10:03pm
Dan Hamilton:

In the nightmare scenario where you have an authoritarian government confiscating guns, the Second Amendment is basically a dead letter


An authoritarian government doesn't spring up overnight. There are warning signs. Such as infringing on gun rights.

Also what makes you think that the police or military would follow these orders? Only Libs believe that police and the military dumbly follow orders. Some would but the vast majority don't.

BTW: That is why the police confiscating guns in New Orleans were from California. They have been so brainwashed that the some of the police don't believe that people have any right to a firearm.

The government has to go bad. It also has to so indoctrinate the people especialy the police and military so that they no longer either know about or believe in the constitution. If they do then how is the government going to believe that they will carry out orders that are against the constitution.

There will be a time to act. Before the confiscations. How to recognize the time and then deciding what to do? Who do you fight? You know that the government has gone bad and will only get worse but most people don't. Also there is no way to reverse it. WHAT DO YOU DO?

Those are the questions that people should be conserned with. Let Professor Volokh look into that. Let him give some advice on how to recognize that time, and what to do.
4.10.2009 10:31pm
Dan Hamilton:

To be more specific, gun registration really is supported by a lot of law enforcement interests (police and prosecutors) across the country, and they are not doing it because they want to impose an authoritarian state or confiscate weapons. Nor is it because they can get their arrest count up by prosecuting registration offenses. Rather, they think it is a tool that can help them solve crimes.


I am sorry but do you realy want to base YOUR RIGHTS on what helps the POLICE? Are you OK with that? I'm not.
4.10.2009 10:41pm
Dilan Esper (mail) (www):
Dan:

At some level, for humans to cooperate together towards constructive social goals, you have to have some trust that people will act constructively and with good motives. And yes, that includes the police. Especially the police.

I don't agree with everything that cops do, and I certainly think there's such a thing as an officer on a power trip. But nonetheless, we do need police to solve and prevent crimes. Collective security is not only extremely important (you can't solve all your security issues by hunkering back with a shotgun on a ranch), but is actually one of the purposes of the Second Amendment.

And at bottom, no Second Amendment interpretation is ever going to help you if the people in charge of the government decide to be maximally oppressive. Nor is that really a "gradual" thing. Either they are confiscating guns-- in which case I assume there would be civil disobedience and massive resistance from gun owners, which would either be defeated or not defeated, Second Amendment or no Second Amendment-- or they are not. Oppression itself may be gradual, but denial of the right to keep and bear arms is basically an on-off switch.

But more generally, you need to understand that, even though these things are (barely) within the realm of possibility and were within the contemplation of the framers, there's also no particular reason to think that they really will happen. The US has a very strong gun culture. There's no reason to believe that elected officials would take steps to disarm Americans who care passionately about guns. And there's plenty of incentive for gun rights groups and their conservative sympathizers to overstate this danger-- it amps up their fundraising and ratings.

Indeed, if you truly believe that there's more than, say, a 0.1 percent possibility of this happening in your lifetime, you probably need to ratchet down your angst a lot.
4.10.2009 11:26pm
Kirk:
Dilan,

I must conclude that you and I simply inhabit different universes, where the rules of logic are quite different and incommensurable. Here we are, talking with each other over a period of hours over why registration is a bad thing, as it will make confiscation easier, and then you go and write your 11:26pm post! Dude, it's exactly that gradual oppression short of actual confiscation that we are trying to get you to think about!
4.11.2009 12:43am
Dan M.:
Dilan

I wasn't commenting on some grand conspiracy of the police in order for them to further be able to oppress me, but it is what I believe to be the ultimate result of many of the laws that are passed. I was discussing this with my father and he simply told me that there are so many laws that he can always find a reason to pull someone over if he wants to.

When we make more laws that don't actually work we just give the police more power to go after the people that they actually want to go after.

However, I will say this: The entire purpose of the people who lobby for gun registrations (VPC, the Brady Campaign, and their affiliates) is to destroy the gun culture in this country. Everything that they do is to make it harder for gun dealers and manufacturers to stay in business, to make it harder for citizens to legally own guns, and to make it harder for people to teach their children responsible gun ownership. And they use all manner of lies to pursue these goals. Why should I ever trust them?
4.11.2009 12:50am
Dilan Esper (mail) (www):
However, I will say this: The entire purpose of the people who lobby for gun registrations (VPC, the Brady Campaign, and their affiliates) is to destroy the gun culture in this country. Everything that they do is to make it harder for gun dealers and manufacturers to stay in business, to make it harder for citizens to legally own guns, and to make it harder for people to teach their children responsible gun ownership. And they use all manner of lies to pursue these goals. Why should I ever trust them?

I'm not saying you should. (And I would also deny that this is their "entire purpose". Many, many hunters and gun owners are in the gun control movement. It is a goal of some people in the coalition, but far from all of them.)

But there's a difference between the goals of a social movement and public policymaking. And, especially with the strong representation of rural parts of America in our government (especially the Senate), there's no chance that even the sort of gun control efforts that might pass the Senate would be intended to or successful at destroying the gun culture.

The gun culture is extremely resilient. It's not going anywhere.

Kirk:

You and I certainly do inhabit different universes. In my universe, (1) there isn't going to be an authoritarian government in the US in my lifetime, and (2) if one did come to power, it could strip a lot of citizens of their rights to own guns with or without a gun registry, making a gun registry a very minor factor in any authoritarian doomsday scenario.

Your argument would only work if the lack of a gun registry were really the bulwark that allowed people to keep their guns and fight tyranny. Under no scenario is that going to be the case. At best, with no gun registry, there might be a few more guns that are retained. Certainly not enough to materially alter the result of any uprising.

In the end, you can either get your knickers in a twist about fantastic doomsday scenarios, or you can have more confidence in the resilience of American culture (including American gun culture as well as American democratic culture). Optimism is more fun than looking behind your back every step you take. You might try it sometime.

Of course, if you did, the gun rights groups wouldn't be able to raise as much money, and we can't have that.
4.11.2009 1:12am
Dan Hamilton:

Indeed, if you truly believe that there's more than, say, a 0.1 percent possibility of this happening in your lifetime, you probably need to ratchet down your angst a lot.


If or when there is a list I will be on it. I am to old to care.

As far as it realy happening. It is likely because the Libs have been trying for many years to disarm the People. What makes you believe that they will ever stop? The American gun culture has been under attack since the 60's. It is already mostly destroyed in big cities and where ever the Democrats have been incharge for to long. Chicago, New York, and California are the best examples. Of course it isn't dead in these places yet but the Democrates are trying to destroy it.

If we don't talk about it the Libs will NEVER believe that we are willing to fight to keep our guns.

In the late 60's and early 70's I was interested in the "How to of Revolution". I was trying to find books. Unlike today I could find none. But there were Revolutionary Book Stores close to some colleges. I found ones in Austin, Denver, Boise, and other cities. What I found were tons of books on the WHY of revolution but except for one or two books NOTHING on the HOW of revolution. The Left in the US has NEVER known or really thought about HOW only WHY. They are now in power. They don't understand the military or guns. They still don't know anything about the How of revolution so they believe that it can't happen in the US. THEY weren't able to start a revolution and if THEY couldn't then it can't be done.

The only thing the Left knows about the How of revolution is making bombs and they were bad at that(Ayers).

It will really happen because the Left is to ignorant to know that it will be fought.
4.11.2009 1:17am
Dilan Esper (mail) (www):
It is already mostly destroyed in big cities and where ever the Democrats have been incharge for to long. Chicago, New York, and California are the best examples

We have a great gun culture in California. Indeed, Professor Volokh is a shining example of it. And he's in the big city.

But outside of the big cities, in places like the San Joaquin Valley, the residents would laugh at your characterization that we have no gun culture in California. We are still the West, you know.

I would suggest this. In big cities, gun culture suffers. But that's understandable. Because in big cities, (1) lots of people live in relatively close spaces, creating a greater fear of crime, including gun crime, (2) the sort of outdoorsy activities, such as hunting, associated with guns are less available and less popular, and (3) there's a much greater reliance on the constant patrols of police than there is in rural areas where people have to fend for themselves. I suspect these are truisms the world over.

The point is, we have a big-time gun culture in our rural areas, but we even have a niche gun culture in our cities. I believe that for many years the largest periodic gun show in the world was conducted at the Los Angeles County Fairgrounds. The strength of the gun control movement, and their occasional victories, has not in any way squelched the gun culture here.
4.11.2009 1:30am
Dan Hamilton:

The strength of the gun control movement, and their occasional victories, has not in any way squelched the gun culture here


With the cities and the majority of the people in the cities firmly in the Lefts pockets. And will the Left making more and more gun control laws. You are so blind that you can't see that They are winning. Yes there is a gun culture in California but it is only a shadow of what it was in the 50's.

In ten or twenty years maybe less the gun culture in California will be even smaller then it is now. It has no power in government and will have none in the future. Many gun owners are leaving California because of its anti-gun laws and other things the Left is doing. if you don't know this you are living in a dream world.
4.11.2009 2:00am
Dan M.:
Well, I didn't say that the people who contribute to these organizations necessarily have this goal. But the people who actively lobby for these regulations do. That is absolutely the entire purpose of VPC, the Brady Campaign, the Million Mom March, and every affiliated group. There are plenty of well-meaning people on either side who are largely ignorant of the core issues. I don't think there's a single well-meaning person that's actually drafting any gun control legislation, though.

And, of course, they use divide and conquer tactics, by courting police organizations like IACP, and then they create front groups like AHSA to further these divide and conquer tactics. And the fools who join AHSA would end up being the ones saying "Then they came for the semi-automatics, and I said nothing."

Do you honestly think they aren't simply trying to destroy the gun culture when they try to use scare tactics about lead poisoning to keep kids from hunting, to get shooting ranges shut down, to encourage homeless shelters to refuse food from hunters, to prevent guns being carried in national parks, etc.? Since when is Josh Sugarmann or Paul Helmke an environmentalist?
4.11.2009 2:23am
Dilan Esper (mail) (www):
Dan:

As far as I know, the major gun laws in California are decades old. No additional "squelching" is going on. And as I said, the idea that up in Bakersfield or Bishop or Alturus or Redding there isn't going to be a gun culture is laughable.

You seem to view California as the home of one-dimensional liberal (which you call "left-wing") stereotypes. It's a lot different than you think. If California were what you think it is, we wouldn't have elected Schwarzenneger governor (not that THAT was such a great idea [grin]).
4.11.2009 3:44am
Gene Hoffman (mail) (www):
California's gun culture would surprise folks who haven't actually met it.

In the last couple of years that culture has:
Passed an anti-Katrina seizure bill un-opposed.
Gutted the CA AW ban legally and technologically.
Defeated all anti-gun legislation except microstamping which we got changes in the legislation to basically moot it.
Are about to gut the Handgun Roster while having it ruled unconstitutional.

The dangerous thing about creating a large regulatory state is that those regulated usually capture the regulatory apparatus. We care more.

-Gene
4.11.2009 4:53am
Brett Bellmore:
Dilan, enough with the accusations of paranoia. As the saying goes, it's not paranoia if there really is somebody out to get you, and in the case of gun owners, there really is somebody out to get us. And we're not going to pretend otherwise just to make you happy.
4.11.2009 7:15am
cboldt (mail):
-- Oppression itself may be gradual, but denial of the right to keep and bear arms is basically an on-off switch. --
.
Just like freedom of speech and freedom of religion have on-off switches? Either the right is "on" or it is "off?" Sure, one can make that on-off / binary distinction many different ways, but your argument boils down to "until there is a complete and total ban on the public possession of firearms and ammunition, there right to keep and bear arms has not been denied." E.g., the Washington DC law struck down in the Heller decision did not, in your mind, represent a denial of the right to keep and bear arms.
.
-- There's no reason to believe that elected officials would take steps to disarm Americans who care passionately about guns. --
.
ROTFL.
4.11.2009 8:51am
Ryan Waxx (mail):
But there's a difference between the goals of a social movement and public policymaking. And, especially with the strong representation of rural parts of America in our government (especially the Senate), there's no chance that even the sort of gun control efforts that might pass the Senate would be intended to or successful at destroying the gun culture.


That representation might not continue forever. For example, a democrat president might get a congress whose body is mainly democrat and its leadership is a pack of big-city liberals.

Oh wait... that's happening now.


The gun culture is extremely resilient. It's not going anywhere.


That's mostly because we've been able to mostly stop people like Obama, and people like you, and all the "ban-ners in incrementalist clothing". Unfortuantly, the only thing the ban folks have to do is get lucky ONCE.

But that's only the endgame. Once past a certain tipping point, kids stop growing up to be hunters in large enough numbers to ensure their rights are guarded, and personal defense is outlawed in enough places to make it totally irrevelant, because 90% of the time you can't be armed, and criminals know the places you aren't. At that point, because casual users have been crowded out by ornerous regulation, the remainder can be dismissed as fanatics, because those are the only ones left.

Just as a church can be taxed out of business, the second amendment can be regulated out of having a culture to defend it.
4.11.2009 8:52am
zippypinhead:
California's gun culture would surprise folks who haven't actually met it.

In the last couple of years that culture [snip]

Are about to gut the Handgun Roster while having it ruled unconstitutional.
Gene, tell us more -- as you probably know, the District of Columbia local government has adopted the California handgun list, but with a perverse spin that prohibits registration of even the exact same model revolver that Dick Heller successfully sued over. On the assumption that the current D.C. "voting rights" bill's anti-local gun control amendment is going to be stripped out or significantly watered down before it gets out of Congress, what, exactly, is happening to the California approved handgun list?
4.11.2009 1:12pm
Gene Hoffman (mail) (www):
Zippy,

We Californian's are intimately involved with the DC case. You might imagine that the claims made in DC can easily be re-imported to California.

See the complaint and the press release.

I have to be a bit demur on next steps exactly but we're not worried about the outcomes forced by the DC "voting rights" act.

The other front we're moving on is administrative here in California. Soon you will be able to import the frame or receiver of any handgun.

Also, it turns out that there is really no reason in the law that bars a buddy from flying or driving into California with an unrostered handgun and selling it to you at a California FFL via the PPT processes in Penal Code Section 12082. However, there is an unlawful restriction in the FFL's state provided software that we expect to fix.

-Gene
4.11.2009 2:13pm
LarryA (mail) (www):
Without federal legislation on forming the militia I'm not sure states have such powers. They would at least need to use some other grant of power to get there.
Nope. The Texas State Guard is separate from the Texas Army National Guard and the Texas Air National Guard. It isn't subject to national recall or federalization.
Likewise, the Constitution has been interpreted to secure a right to marry, but the government may require that people get a marriage license.
Irony Alert: Many of the folks who wouldn't have any problems with restrictive gun licensing schemes get really ticked off that most states won't license same-sex marriages.
To be more specific, gun registration really is supported by a lot of law enforcement interests (police and prosecutors) across the country, and they are not doing it because they want to impose an authoritarian state or confiscate weapons. Nor is it because they can get their arrest count up by prosecuting registration offenses. Rather, they think it is a tool that can help them solve crimes.
And a lot of agencies oppose gun registration because it wastes police man-hours and resources and doesn't solve crimes. They also think it's silly to pass an anti-crime law that they can't use against a felon.
I believe that for many years the largest periodic gun show in the world was conducted at the Los Angeles County Fairgrounds.
Until the anti-gun county government shut it down.
California's gun culture would surprise folks who haven't actually met it.
Probably. My experience is with California refugees ecstatic that they no longer have to put up with all the nonsense.

OTOH if you check the Brady 2008 scorecard, even though California remains first, even they have rejected 1/5th of the Brady agenda.
4.11.2009 2:36pm
Soronel Haetir (mail):

Nope. The Texas State Guard is separate from the Texas Army National Guard and the Texas Air National Guard. It isn't subject to national recall or federalization.



How does that get around the ban on states having standing armies? Anything that falls under the militia clauses is subject to federal callup under the right circumstances.
4.11.2009 4:28pm
Andy Freeman (mail):
> Obviously, Fact Checker, doesn't practice what he preaches.

Actually, he does. "Fact checker" doesn't mean "checks facts". It's a job title. The job consists of verifying that someone said what they're quoted as saying, whether or not what they said was factual. (In practice, the quote verification isn't all that reliable. Editors and reporters will sacrifice quote accuracy, let alone factual basis, for a good story.)

FC is accurately quoting mis-statements and lies that other people have made.
4.11.2009 6:42pm
LarryA (mail) (www):
How does that get around the ban on states having standing armies?
What ban?
4.11.2009 7:16pm
Dilan Esper (mail) (www):
Dilan, enough with the accusations of paranoia. As the saying goes, it's not paranoia if there really is somebody out to get you, and in the case of gun owners, there really is somebody out to get us. And we're not going to pretend otherwise just to make you happy.

I don't think gun rights advocates are paranoid. But I certainly think when they emphasize unlikely doomsday scenarios and hypothetical totalitarian governments, they LOOK paranoid.

And the fact is, whatever one says about the gun control movement, it doesn't have the power and won't at any time in the near future gain the power to destroy the American gun culture. The regulations that can pass will be on the margins, except in major cities, and I suspect that outright gun bans aren't going to last much longer after Heller.
4.11.2009 11:14pm
Dilan Esper (mail) (www):
That's mostly because we've been able to mostly stop people like Obama, and people like you, and all the "ban-ners in incrementalist clothing".

I think a ban on handguns would be a clear violation of any reasonable interpretation of the Second Amendment. Maybe you shouldn't lump people together so quick.
4.11.2009 11:16pm
Dilan Esper (mail) (www):
But that's only the endgame. Once past a certain tipping point, kids stop growing up to be hunters in large enough numbers to ensure their rights are guarded, and personal defense is outlawed in enough places to make it totally irrevelant, because 90% of the time you can't be armed, and criminals know the places you aren't. At that point, because casual users have been crowded out by ornerous regulation, the remainder can be dismissed as fanatics, because those are the only ones left.

It's worth noting that this could theoretically happen even if we had a very broad interpretation of the Second Amendment. (I don't think it actually will, but in theory, it could.) The only thing you could do to stop this would be some sort of mandatory militia service. Otherwise, people could always decide at some point that they just weren't interested in owning guns anymore.
4.11.2009 11:18pm
Dilan Esper (mail) (www):
Probably. My experience is with California refugees ecstatic that they no longer have to put up with all the nonsense.

But many others stay, because this is paradise on earth despite our gun laws.

Remember, what I was reacting to was a comment that there was no gun CULTURE in California. Of course there is. Just because we have pretty aggressive gun controls doesn't mean we don't have lots of gun owners and a thriving gun culture here.
4.11.2009 11:20pm
Jon Roland (mail) (www):
Soronel Haetir:

How does that get around the ban on states having standing armies? Anything that falls under the militia clauses is subject to federal callup under the right circumstances.

U.S. Const. Art. I Sec. 10 Cl. 3:

No State shall, without the Consent of Congress, ... keep Troops, or Ships of War in time of Peace ...

"
"Troops" means an army, which is distinguished from militia, in that it is generally full-time, paid, and contracted for a fixed tour of duty, whereas militia is armed civilians called up to meet a (presumably) temporary threat, serving only for the duration of the threat.

The Founders, rightly or wrongly, did not contemplate long-term threats that might require militia to be kept in a called-up status for an extended period of time. They expected that in such a situation, an army would be raised for the purpose, and take over from militia.

Yes, in principle a state guard could be called up along with other civilians as part of a general call-up, but it would be improper to select them for a call-up. The Founders were clear that there was not to be a select militia. Any call-up needs to be broadly representative of the general population of fit persons. If not all are needed a subset could be called up at random, like a jury call-up (a jury being a specialized form of militia), but a call-up of only those who support the party in power would definitely be unconstitutional, from an originalist standpoint.
4.11.2009 11:50pm
Andy Freeman (mail):
> And most of those were cases where the registration of the gun was evidence that tied the criminal to the crime.

Tied the criminal to what crime?

The "registration doesn't solve crimes" argument is that registration doesn't help solve crimes unless it provides evidence or a link that would not have been otherwise available. The canonical example is something like "police don't know who committed violent crime but find gun that was used by said violent criminal AND said violent criminal is registered owner of said gun."
4.12.2009 2:45pm
Dilan Esper (mail) (www):
Andy:

That's an impossible standard to meet. It's like saying to critics of the Fourth Amendment exclusionary rule "you can't point to a case where the sole evidence against a defendant was excluded under the exclusionary rule".

Criminal cases are mosaics of numerous pieces of evidence. A gun registration is one piece of evidence that is sometimes relevant. And there are about 100 reported appellate cases in California alone where the evidence of registration was material enough to make it into the statement of facts in the appellate opinion.

Now, in these cases, was it the crucial piece of evidence? Well, you'd have to read the jury's mind to decide that. But as I said, that's not how criminal cases work. What certainly can happen is that a gun registration helps tie the defendant to the crime, and therefore helps bring about a conviction.

Further, there's no way at all to measure the number of cases that are plea-bargained and never make it to trial at all where a defendant was tied to a crime by a gun registration.

I will say what I said in the other comments thread. Gun rights advocates are better off not making the extreme (and almost certainly not true) claim that there's never been a case where a gun registration helped lock a criminal up. Especially since this is not, as I understand it, gun rights advocates' main concern about this anyway-- rather, the argument is that the costs of gun registration, in terms of setting up a possible confiscation and in terms of some sort of privacy right of gun owners, exceeds any benefits.

That claim is plausible. The claim that nobody's ever convicted a criminal due to a registration of a gun used in a crime is preposterous.
4.12.2009 5:42pm
Andy Freeman (mail):
> That's an impossible standard to meet.

Since that's the standard that we used to establish the investigative value of fingerprints, it's clearly not impossible. It's the reason why we collect DNA from felons.

> And there are about 100 reported appellate cases in California alone where the evidence of registration was material enough to make it into the statement of facts in the appellate opinion.

Which doesn't imply that it had any investigative value.

And, if the "crime" in question was "failure to register" or "owning unregistered" or some other non-violent crime....

Note that Esper is trying to move the goal posts. The claim is that registration helps solve crimes. He's arguing that it helps convict folks.

I'm sure that there is at least one case where the police didn't know who committed a violent crime but had the gun and were able to find the perp by looking at registration records. The point is that such a set of conditions is extremely rare and the cost is fairly high. (And yes, that cost should be borne by society since registration provides no benefits to gun owners. It could, but police departments don't use registration lists to return stolen guns. In fact, they fight to keep recovered stolen guns even after the rightful owner finds out.) Forcing folks to wear bar-coded clothing has a better cost-benefit ratio.
4.14.2009 8:04pm

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