pageok
pageok
pageok
Under-21-Year-Olds Banned from Possessing Any Firearms in New York City?

That seems to be so, under New York City Administrative Code § 10-303 (at least with some narrow exceptions), as interpreted by the New York Police Department. Does anyone whether there are other rules that might keep this from being the case?

Query: If the Second Amendment is incorporated against the states, can this be constitutional? As I noted with regard to a much less restrictive Illinois limit on 18-to-20-year-olds, the age of majority has indeed historically been 21 until the early 1970s, though now it's 18 virtually everywhere, including in New York.

Would the right to keep and bear arms not fully apply to under-21-year-olds, the way some constitutional rights today don't fully apply to under-18-year-olds (consider the right to sexual autonomy, the right to marry, the right to abortion, which could be limited through certain kinds of parental consent laws, and likely the right to bear arms itself)? Or does the right apply to all adult citizens — unless otherwise disqualified by reason of felony conviction or the like — under today's age of majority, regardless of what the age of majority was at the time? Or has the right always extended to everyone 18 and above, regardless of the age of majority for other purposes?

These questions would also have some importance in other states that allow long gun possession for 18-to-20-year-olds but ban handgun possession until age 21, and also as to the federal government, which makes handguns harder for under-21-year-olds to get.

Related Posts (on one page):

  1. Under-21-Year-Olds Banned from Possessing Any Firearms in New York City?
  2. Under-21-Year-Olds and Guns in Illinois:
Repeal 16-17 (mail):
In Heller, the majority seemed to link the 1st Amendment with the 2nd Amendment. Based on that, I believe if the 2nd Amendment is "incorporated", the NYC ordinance would be judged in the same way as would a law which limited free speech for those under 21.
4.14.2009 8:09pm
Gulf Coast Bandit (mail):
I wondered the same thing. My (over 21) buddy asked me to pick up some ammunition for his handgun while I was at Wal-Mart, but apparently I'm not allowed to do that in Virginia. (Wow, I just realized how redneck that sounded.) Since Scalia referred to the handgun as the "quintessential self-defense weapon," it seems like Virginia's law would be unconstitutional according to him at least.
4.14.2009 8:19pm
LibertyCowboy:
I'm skeptical that the AOM has historically been 21. There were 12 year olds serving on the USS constitution, and it seems like almost everyone in their teens could hunt or generally use a rifle until the 20th century urbanization.

As a matter of law, there were few applications of firearms law against white people until the civil-rights era led states to apply jim-crow firearms laws to the entire population.

People used to marry younger too.
4.14.2009 8:29pm
George Mocsary (mail):
When I first got my NYC long gun permit, I was 18 years old. At some point when I had to renew it, the limit was 21, but by then I was over the limit and I wasn't denied. However, I once went into the office to ask for a permit application for a friend on an occasion other than when I was renewing, and I was asked to prove that I was 21 or older. So, at least in this context, they do enforce it.
4.14.2009 8:38pm
markm (mail):
Libertycowboy: The age of majority was historically 21 - but there were few legal restrictions on men under the AOM except for voting and signing contracts other than for education and necessities.
4.14.2009 8:51pm
pintler:

My (over 21) buddy asked me to pick up some ammunition for his handgun while I was at Wal-Mart, but apparently I'm not allowed to do that in Virginia.


VA may be different, but IIRC buying some 44 mag once and being asked if it was for a pistol or rifle. I replied, truthfully, 'for a rifle', but how would they know? I think there is a rifle made in almost any caliber. It's a pretty silly question.
4.14.2009 8:56pm
corneille1640 (mail):
When amendments are "incorporated" to apply to the states, does that necessarily mean they are fully incorporated? In other words, if the 2nd amendment were incorporated to apply to the states, would the standard used against the states necessarily be as strict as the standards put forth in Heller?
4.14.2009 9:10pm
Repeal 16-17 (mail):
When amendments are "incorporated" to apply to the states, does that necessarily mean they are fully incorporated?


That's been the case since the '60s. Before then, rights enumerated in the Bill of Rights (not technically the amendments per se) applied to the States to the extent they were "fundamental to the concept of ordered liberty" (Palko v. Connecticut, 302 U.S. 319 (1937)). Under Palko, rights could be applied to the States in a way less than they were to the federal government, under the belief that the Bill of Rights applied those same rights to the federal government to the extant beyond their being "fundamental to the concept of ordered liberty".
4.14.2009 9:27pm
Anthony A (mail):
Does the 21st Amendment provide a right to drink? If so, then it's clear that people under 21 can be deprived of constitutional rights.
4.14.2009 9:27pm
The Scalia Concern (mail):
I think this would best be classified as a situation where the Constitutional right is "delayed, not denied." As such, it is usually scrutinized under a less stringent standard, and the statute would be very difficult to overturn.
4.14.2009 9:35pm
Repeal 16-17 (mail):
Does the 21st Amendment provide a right to drink?


No, it only repealed the 18th Amendment (Prohibition) and allowed the States to regulate alcohol (Section 2 of the 21st Amendment).
4.14.2009 9:36pm
zippypinhead:
Fascinating question. Isn't the legal age of majority primarily determined by state law? If so, one could argue that a state (or a political subdivision of a state with delegated rulemaking authority) can enact laws with phased ages for the independent exercise of particular rights without such laws necessarily being suspect. OTOH, after Heller there's no question about the Second Amendment being an individual right, and several other enumerated (and some unenumerated) Federal Constitutional rights do not have a minimum age - one retains some First Amendment rights, the Fifth Amendment privilege against self-incrimination, Fourth Amendment rights, etc. The 21st Amendment seems to grant greater leeway to states to regulate alcohol consumption, so I would argue the permissibility of a 21 minimum drinking age is probably not a good analogy.

While I'm not certain the correct Constitutional answer, it's pretty clear that the best (post-incorporation) test case would be brought by an emancipated 19-20 year old who was denied a long gun permit but would be fully qualified for a permit under existing law, but for the age restriction. Throw in a few attractive but Constitutionally irrelevant factoids like the test case plaintiff also being a member of her college rifle team, in the National Guard, holder of a hunting license, etc., and you might even get some sympathy, much like Dick Heller being a security guard at a Federal building who was authorized to carry while on duty.
4.14.2009 10:02pm
Cave Man Lawyer:
I'm just a cave man. When I read the Constitution from a scanned image online, I am confused by the strange squiggles on the square, and odd smooth, piece of bark. When took my wife to the National Archives to see it on display, the security mechanisms frightened and alarmed me. Why can I see the document, but when I reach for it something transparent yet hard hurts my hand? I become enraged and consider defecating on the Congressman from Illinois who complimented me on my recent case as we introduced ourselves over cocktails the night before. The concept of magical force fields and representative government are too much for my primitive brain to manage.

And yet, I know this: the second amendment does not simply tie the federal government; it stipulates that the inalienable right to bear arms shall not be infringed. It says "shall not," ladies and gentlemen. Should we take this to mean "shall not by the federal government?" Is there not conveyed both implicit urgency and importance in "being necessary to the security of a free State" to defend one's self from threats of tyrrany both foreign and domestic? If not, then the Bill itself means nothing; we must free ourselves from the paper bondage of this farciful founding document. I see those being the only two possible outcomes.

But what do I know? I'm just a cave man.
4.14.2009 10:15pm
Dilan Esper (mail) (www):
This is yet another example of why you can't simply rely on free speech analogies in determining the scope of the right to bear arms.

It's perfectly possible to recognize that the right to bear arms is important while also recognizing that it works differently than some other rights because guns can be dangerous. And without opining as to what, exactly, the minimum age required for Second Amendment rights is, the idea that there is one seems to me to be perfectly plausible.
4.14.2009 10:19pm
metro1 (mail) (www):
Dilan:

What seems plausible to you - and the language of the Constitution - are two very different things (thank goodness).
4.14.2009 10:34pm
Island Despair:
This is yet another example of why you can't simply rely on civil rights analogies in determining the scope of the right to free speech.

It's perfectly possible to recognize that the free speech arms is important while also recognizing that it works differently than some other rights because words can be offensive. And without opining as to what, exactly, the minimum age required for First Amendment rights is, the idea that there is one seems to me to be perfectly plausible.
4.14.2009 10:40pm
Bill Poser (mail) (www):
As a matter of curiosity, if you're not a police officer, a long distance assassin, or Charles Bronson, what does one use a long gun for in New York City? I'm pretty sure that there are very few moose or bear.
4.14.2009 10:57pm
pintler:
metro1:

Do you feel there is any age before which it is reasonable to forbid unsupervised access to firearms? Any age young enough that a store should refuse to sell a firearm?

For example, you are constitutionally protected against cruel and unusual punishment from birth. Dilan is suggesting that your second amendment right aren't fully vested quite that early. One can quibble about the ages - 14, 16, 18, 21, or whatever, but the principle seems pretty reasonable.
4.14.2009 10:59pm
Visitor Again:
What on earth is the constitutional basis for denying a constitutional right on the basis of age to one who is 18 years old? It would have to be fabricated out of whole cloth. I don't see any such qualification of the right to bear arms in the second amendment.

Certainly back in the the days of the Founding Fathers, it was normal for youngsters to carry and use firearms.

Might it not have bearing that today's military allows 18-year-olds to carry and use firearms? I don't know if it's still the case, but back in the 1970s, when I did a few courts-martial, the military allowed 17-year-olds to enlist and serve, as long as they had parental consent to join. So it may be the case that even 17-year-olds are carrying and using firearms in the military.

Of course these youngsters receive training and are supervised in the military, unlike civilian youngsters seeking to purchase firearms.

But the military experience does at least demonstrate, I think, that age per se does not automatically render an 18-year-old unfit to carry and use firearms.

Whether a training requirement--completion of an instructional class, for example--could be required is another question.
4.14.2009 11:10pm
/:
Of course these youngsters receive training and are supervised in the military, unlike civilian youngsters seeking to purchase firearms.


Correct. They receive training and are supervised outside of the military.
4.14.2009 11:34pm
ChrisIowa (mail):

As a matter of curiosity, if you're not a police officer, a long distance assassin, or Charles Bronson, what does one use a long gun for in New York City? I'm pretty sure that there are very few moose or bear.

You do understand that people who live in New York City are allowed to occasionally leave the City don't you?

There are people in New York City who like to shoot at targets for recreation. Some even like to hunt. They take their rifles outside the City to participate in a legal activity they enjoyed while growing up probably somewhere else. Or which they learned to enoy on one of their occasional leaves from the City. They have to keep their rifles somewhere, so why not at home with the rest of their personal property?
4.14.2009 11:37pm
Bill Poser (mail) (www):

You do understand that people who live in New York City are allowed to occasionally leave the City don't you?


Yes, though I'm not entirely sure it's a good idea. :)

So this is really an issue just for people who go elsewhere to shoot. If you do have a permit, can you carry your rifle or shotgun with you as you walk along the street? It isn't a concealed weapon.
4.14.2009 11:41pm
Yuiop:
Cave Man Lawyer,

So under your theory "No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury" in the Fifth Amendment applies to every state felony proceeding? What could be clearer? It doesn't say state crimes.
4.14.2009 11:55pm
Frater Plotter:
It's perfectly possible to recognize that the right to bear arms is important while also recognizing that it works differently than some other rights because guns can be dangerous.
The same anti-liberty argument has been used against speech, against drugs, and against a lot of other things. We hear it, for instance, on the subject of "hate speech", especially against religion: "Free speech is important, but speech can be dangerous."
4.14.2009 11:58pm
zuch (mail) (www):
You can't drink until you're 21 in many (if not all) states. You can't run for president until much older.

Unless the constitution establishes an "age of majority" for KABA, I don't know that any reasonable number for such a restriction is outrageous.

Cheers,
4.14.2009 11:59pm
Soronel Haetir (mail):
Even now 17 year old males are considered part of the unorganized militia by US code. If they are truely supposed to show up with their own arms that would seem to answer the question. Or at least be a major indication.
4.15.2009 12:15am
J. Aldridge:
Query: If the Second Amendment is incorporated against the states, can this be constitutional?

Wouldn't that require a constitutional convention? :-)
4.15.2009 12:30am
Cave Man Lawyer:
So under your theory "No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury" in the Fifth Amendment applies to every state felony proceeding?


My first reaction is to say, since "a Grand Jury" is specified in the text, that it refers specifically to courts at the federal level. But I have not researched the matter at all, as I have spent most of the night in my hotel suite hypnotized at a glowing box trapping miniature, gyrating women.
4.15.2009 12:35am
Yuiop:
Cave Man Lawyer,

How does a Cave Man Lawyer conclude that "Grand Jury" means "Federal Grand Jury". It doesn't say federal Grand Juries, and there are, in fact, state grand juries.
4.15.2009 12:43am
Cave Man Lawyer:
It doesn't say federal Grand Juries, and there are, in fact, state grand juries.


All that the Constitution, as a document, knows of States' governments is that they're going to be republican and delegate senators. If it weren't for the first clause, monarchy at the State level would be legal. Everything else is a matter of individuals. As far as the Constitution and its amendments specify, isn't it up to the elected representatives of the member State to decide court procedure?

Frankly, the concept of court jurisdiction angers and confuses me.
4.15.2009 12:58am
George Mocsary (mail):

As a matter of curiosity, if you're not a police officer, a long distance assassin, or Charles Bronson, what does one use a long gun for in New York City? I'm pretty sure that there are very few moose or bear.


Because of the combination New York's draconian pistol licensing laws and bureaucratic impediments (i.e.: the Police Department "loses" application materials all the time), for most the long gun - specifically, the shotgun - is the only viable option for home defense in the City.

In fact, in tight quarters, the shotgun can be safer to 3rd parties because, if you you the proper shot, while it's as or more effective than a pistol at short range, it's effectiveness drops off dramatically at medium and long ranges. It also is less likely to go through walls and such in apartment buildings. This means that stray bullets/shot is much less likely to injure others.


...of course, there's also the old-style butcher shops in the City that can really prepare a deer or turkey (that you admittedly have to shoot outside the City) very nicely for you. :-)
4.15.2009 1:37am
Larrya (mail) (www):
As a matter of curiosity, if you're not a police officer, a long distance assassin, or Charles Bronson, what does one use a long gun for in New York City? I'm pretty sure that there are very few moose or bear.
I remember (1965) when just about every NYC high school had a rifle range in the basement. Students used to carry their target .22s to and from school on the subway. There were city-wide competitions for college scholarships.
But the military experience does at least demonstrate, I think, that age per se does not automatically render an 18-year-old unfit to carry and use firearms.
The 4-H Shooting Sports program teaches kids 8 to 18 to shoot. Girls as well as boys, shooting being a coed sport. Hugely successful.
4.15.2009 2:17am
Ricardo (mail):
The same anti-liberty argument has been used against speech, against drugs, and against a lot of other things. We hear it, for instance, on the subject of "hate speech", especially against religion: "Free speech is important, but speech can be dangerous."

Aren't facts relevant to the discussion, though? The Mumbai killers did not kill scores of people and hold the financial district hostage for days with speech. You will note though, that truly dangerous speech acts such as immediate threats and the ubiquitous "yelling fire in a crowded theater" are not protected speech and can be criminally prosecuted.

I would point out on the subject of age restrictions that freedom of speech and of the press have been held to imply, quite logically, freedom to hear and freedom to read. If I can legally publish and distribute a book, someone else has must have the right to purchase, possess and read the book for the freedom to mean anything. However, this is not true for minors where the courts have long held that the state can restrict minors' access to offensive content. Not to mention that parents can do the same. So children do not, in fact, have the same 1st Amendment rights as everyone else under current law.
4.15.2009 3:57am
Visitor Again:
Of course these youngsters receive training and are supervised in the military, unlike civilian youngsters seeking to purchase firearms.

Correct. They receive training and are supervised outside of the military.

Sometimes. I'm reminded of my boyhood in rural Canada in the early 1950s. A friend got his first air rifle on his 13th birthday. Within a half hour of the end of his birthday party, he had shattered the big front window at the restaurant his parents owned and shot a friend right in the eye. His rifle was confiscated.

A few weeks later I got my first air rifle for Christmas, a Daisy with wooden stock. I was 10. We boys shot birds for sport, for which I've long been ashamed. We also played a game that involved hunting down each other in the woods and shooting each other below the waist with BB pellets. We were good shots, we wore heavy denim jeans and no one got hurt. But it was foolish.

A couple of years later we went on to .22 caliber rifles. By then, we had somehow picked up basic rules of safety, although we had no formal instruction. Beyond familiarity with the weapon, of course, most of it is common sense. Regrettably, a lot of young people don't have common sense; they get it through making mistakes. But mistakes with firearms often carry deadly consequences.

Later, in the Boy Scouts, we got formal instruction in weapons safety. By then, however, most of us had been using knives and rifles for years.
4.15.2009 5:16am
/:
The Mumbai killers did not kill scores of people and hold the financial district hostage for days with speech.


Were the guns purchased legally?
4.15.2009 5:20am
PersonFromPorlock:
I wonder, though, if the specific question of the Second's incorporation isn't irrelevant. 18 USC 241 & 242 both criminalise the denial of any right secured by the Constitution (slight paraphrase). To this layman, that seems to say that the RKBA, secured against the federal government by the Second Amendment but 'secured' nonetheless, applies by statute to the states. And so with all other constitutionally-secured rights, also.
4.15.2009 6:55am
Brett Bellmore:
Given that it's a civil liberty, even if an age limit is appropriate, don't you have to justify the age limit? Presumably subject to strict scrutiny, unless the Court is going to decide that the 2nd is a 2nd class right. (Which wouldn't surprise me, especially if Obama gets some picks in before they hear the case.)

Justifying denying this right to somebody who's old enough to join the military is going to be pretty difficult.

Visitor again, you make a good case for making sure children get BB guns some time before they're old enough for regular firearms. Let them make their mistakes while the consequences are still somewhat limited.
4.15.2009 7:07am
Visitor Again:
Visitor again, you make a good case for making sure children get BB guns some time before they're old enough for regular firearms. Let them make their mistakes while the consequences are still somewhat limited.

Yes, I think that's right. But I'm afraid today's majority would conclude no weapons at all--BB guns included--for young people.
4.15.2009 7:23am
iowan (mail):
All the talk about selfdefense and safety, possible crimes being committed are all strawman arguments. Just like other protections from the government in the BOR. the 2cnd comes with risk that society accepts. Just like forbidding unreasonable seaches allows dangerous criminals protection. Just like forbidding the govt from coercing confessions. The 2cnd is there to protect me from the govt, not my neighbor. not to go hunting. The state can show no reason to deny the right to 18 yr old if applicaple training is obtained
4.15.2009 8:34am
Don Meaker (mail):
Title 10, Section 311 defines membership in the militia as people who are older than 17, and less than 45 except for prior service officers, who are members until 65.

Denying the right to keep and bear arms to a member of the militia under federal law would seem to be a constitutional problem.
4.15.2009 8:48am
Snaphappy:
It took a constitutional amendment to make sure that 18 year olds could vote.
4.15.2009 8:50am
RichW (mail):
When I got my Long Arms permit in NYC it was 1968, I was 18 and they had just started issuing them, it was good I think for 3 years and was $5.00.
I never realized that it changed to 21. I wonder when they did that?

ChrisIowa; similar to Larrya, when my parent's generation grew up in NYC many of the public high schools had indoor ranges and rifle teams. When I was a teen in the 1960's I belonged to a Jr. rifle club sponsored by the local police precinct and we used to have a range in the basement of a bar in Astoria, Queens. That same club ran a hunting trip each thanksgiving for us members and we would get to the bus usually by walking or taking the subway with our packs of clothes and our cased hunting rifles :)
There was still a range in the basement of my high school but no team and it was not used. City College of NY had a range and a team through the mid 70's.
4.15.2009 8:59am
ruuffles (mail) (www):

Just like other protections from the government in the BOR. the 2cnd comes with risk that society accepts. Just like forbidding unreasonable seaches allows dangerous criminals protection. Just like forbidding the govt from coercing confessions.

How broadly would the conservatives (Scalia, Thomas, Roberts, Alito) interpret the 2nd amendment? Those four have voted against the exclusionary rule to give teeth to forbidding unreasonable searches, as well as confessions obtained after holding a suspect for a long time before a hearing.
4.15.2009 9:18am
corneille1640 (mail):

I remember (1965) when just about every NYC high school had a rifle range in the basement. Students used to carry their target .22s to and from school on the subway. There were city-wide competitions for college scholarships.

For what it's worth (probably not much), my high school ROTC program in Denver (it was a public high school), in the late 1980s, also had a shooting range for 22 caliber rifles. However, by then I don't believe the school still had rifle competitions. My point is, that at 15 years old, I was "trained" (if you could call it that....I really just learned how to miss a target) on firing these weapons.

Having said that, I believe the state does have a legitimate interest in setting age limits for gun use and ownership, even if the 2nd amendment is incorporated. I do agree, however, with someone above who stated that the state should have a good reason for doing so
4.15.2009 9:39am
Don Meaker (mail):
It is my opinion that the Federal Government has already set age limits. They are in Title 10, Section 311.
4.15.2009 9:45am
Houston Lawyer:
Would a state law making it illegal for anyone under 21 to have an abortion be held as constitutional? I don't buy the safety argument at all, since the Court's most cherished right is the right to kill.
4.15.2009 9:52am
Mark Buehner (mail):
A better question is whether the age of majority has any impact on constitutional protections at all. Could a state override the 4th Amendment and conduct illegal searches on a 12 year old? Or, more chillingly, quarter soldiers in an infants playroom?
4.15.2009 9:52am
Melancton Smith:
Ricardo wrote:

Aren't facts relevant to the discussion, though? The Mumbai killers did not kill scores of people and hold the financial district hostage for days with speech. You will note though, that truly dangerous speech acts such as immediate threats and the ubiquitous "yelling fire in a crowded theater" are not protected speech and can be criminally prosecuted.


True, but one always has the physical ability to "yell fire in a crowded theater". We don't have our mouths sewn shut upon entering (though maybe...). Also, if there were a fire, wouldn't we want to have the ability to yell "fire"?

The infringments proposed and in some cases adopted to the Second Amendment are prior restraint. We have no such limitations on the First Amendment.

You aren't allowed to fire a gun in a crowded theater...unless there's a nutjob with a gun assaulting the crowd.
4.15.2009 10:07am
Sebastian (mail) (www):
As a matter of curiosity, if you're not a police officer, a long distance assassin, or Charles Bronson, what does one use a long gun for in New York City? I'm pretty sure that there are very few moose or bear.

If rifles and other long guns are so useless in an urban setting for the purpose of self-defense, why do police officers need them?
4.15.2009 10:49am
Clayton E. Cramer (mail) (www):

I'm skeptical that the AOM has historically been 21. There were 12 year olds serving on the USS constitution, and it seems like almost everyone in their teens could hunt or generally use a rifle until the 20th century urbanization.
Absolutely. And they didn't even necessarily always do the right thing. There's an unfortunate accident in 1783 in Baltimore in which three boys ("two of them Negroes") had returned from the countryside, and emptied their pistols by discharging. Unfortunately, it was immediately adjacent to a gunpowder manufacturing operation, and there was a pretty horrendous explosion.

Maybe there's a good argument for limiting gun ownership to AOM, but the same crowd that believes that 18 year olds should be able to drink, and 12 year olds have abortions, suddenly gets all squeamish about gun ownership by those who are trusted to drink, vote, join the military, and make contracts.
4.15.2009 11:01am
Clayton E. Cramer (mail) (www):

It's perfectly possible to recognize that the right to bear arms is important while also recognizing that it works differently than some other rights because guns can be dangerous. And without opining as to what, exactly, the minimum age required for Second Amendment rights is, the idea that there is one seems to me to be perfectly plausible.
Here in Idaho, you have to be 19 to go into an adult bookstore. Not 18. Not 21. Dilan, are you and the ACLU prepared to defend this violation of the right of free speech?
4.15.2009 11:03am
ChrisIowa (mail):
RichW and Bill Poser:
The question was why would someone want a rifle in New York City NOW. I hope this linky thing works, but just to show that I do know there are currently rifle shooters residing in and around New York.

Rifles in New York

BTW One of the best rifle shooters in the Country in the early years of the 20th century was A. Hubalek (sp?) from Brooklyn. He had a gun shop there.
4.15.2009 11:05am
Yuiop:
Cave Man Lawyer,

I suppose the concept of incorporation would similarly confuse you. Before the Fourteenth Amendment, no one thought that the Second Amendment would apply to the states. Why else would various State Constitutions include the right to keep and bear arms?
4.15.2009 11:07am
Clayton E. Cramer (mail) (www):

As a matter of curiosity, if you're not a police officer, a long distance assassin, or Charles Bronson, what does one use a long gun for in New York City? I'm pretty sure that there are very few moose or bear.
1. Others have pointed out that shotguns are perfectly sensible urban defense weapons, because of reduced penetration through walls. In addition, pistol caliber carbines are a good choice for people who might need to defend their home or business in the most unlikely event that New York City demagogues intentionally stirred up racial or ethnic hatred among stupid people.

2. The Second Amendment doesn't protect a right to hunt, although that was generally assumed in 1791. The right to self-defense was also generally assumed in 1791, but that wasn't the primary reason for the Second Amendment. The primary reason for the Second Amendment was to remind the government who was in charge, and to provide a way for popular resistance to government tyranny.

3. New York City's handgun restrictions are absurd, and make a long gun the most realistic way for most New Yorkers to own a gun. In the early 1920s, New Yorkers started to get around the handgun restrictions of the Sullivan Law by buying another type of weapon that wasn't classed as a handgun, and not yet restricted: the Tommy gun.
4.15.2009 11:10am
Dilan Esper (mail) (www):
clayton:

you might wish that guns and speech are the same, but they aren't.
4.15.2009 11:14am
James Gibson (mail):
As noted above, the starting age for service in the militia is 18 yrs. It is also the starting age for the military draft (not surprising since the militia act and the SSA are connected). During the 60s we had protests in the street over the right of government to conscript young men who, at that time, were too young to vote. Yet today we want to prohibit gun ownership for young men without removing the service requirement also imposed on them; unless some one can show me that someone is proposing amending the selective service act.

Surprisingly, many of the promoters of these new restrictions on free speech, firearm rights, etc. are the same enraged youths of the 60s.
4.15.2009 11:18am
Clayton E. Cramer (mail) (www):

Before the Fourteenth Amendment, no one thought that the Second Amendment would apply to the states.
Wrong. State v. Nunn (Ga. 1846), and the various Louisiana and Texas Supreme Court decisions in this period either explicitly found it to be a limitation on state laws, or strongly implied it.
4.15.2009 11:18am
LarryA (mail) (www):
You will note though, that truly dangerous speech acts such as immediate threats and the ubiquitous "yelling fire in a crowded theater" are not protected speech and can be criminally prosecuted.
Committing "truly dangerous gun acts" such as pointing a gun at someone or shooting inside city limits are also illegal. These are restrictions on acts, not the means. The law doesn't make children wear gags while in the theater. Or even turn off their cell phones.
Yes, I think that's right. But I'm afraid today's majority would conclude no weapons at all--BB guns included--for young people.
I doubt that a majority of people in the U.S. would agree. However, the hardcore anti-gun folks would ban toy guns and criminalize pointing your finger and going "bang."
4.15.2009 11:27am
Clayton E. Cramer (mail) (www):

clayton:

you might wish that guns and speech are the same, but they aren't.
They aren't. But "old enough to fight, old enough to vote" was the quintessential liberal bumper sticker when I was growing up, so I'm not sympathetic when liberals try to use similar equivalences today when convenient (interracial marriage and same-sex marriage) but deny the equivalence when inconvenient.

I am prepared to accept some restrictions on guns based on original intent in the same way that I am prepared to accept some restrictions on speech based on original intent.

If liberals interpreted the Second Amendment the way that they interpret the First Amendment, there would be effectively no gun control laws of any sort.
4.15.2009 11:30am
J. Aldridge:
Clayton E. Cramer said: "Wrong. State v. Nunn (Ga. 1846), and the various Louisiana and Texas Supreme Court decisions in this period either explicitly found it to be a limitation on state laws, or strongly implied it."

Didn't the court in Hill v. State, 53 Ga. 472 clarify that "the right to beep and bear the 'arms' necessary for a militiaman," did not include such things as private pistols?
4.15.2009 11:53am
SeaDrive:

The primary reason for the Second Amendment was to remind the government who was in charge, and to provide a way for popular resistance to government tyranny.


You are suggesting that the Second Amendment is code for a constitutional right to armed insurrection? Perhaps you could elaborate on your thinking.

I rather think the Founders would think that we now deny even adults the rights of adulthood. We are not allowed guns, dangerous chemicals are prescribed, and we are not trusted with cash except in small quantities. We go about with ID in our pocket in vehicles with ID numbers on the bumpers for the convenience of police. In many places, we can not keep a goat or sheep on our front lawns, and grazing rights on the town green are long gone. I'm pretty liberal in most ways, but I think that the intrusion of the government into our lives for nominal law enforcement and public safety purposes is way past the point of diminishing returns.
4.15.2009 11:59am
James Gibson (mail):
The 1792 militia act, section 4, states that militia cavalry men had to own a brace (or pair) of pistols. A guess a private pistol is something else.

Also, when I was in JROTC we had primary marksmenship training with BB guns, advancing to .22 as one progressed through High School. Today, thanks to gun controlists and no guns on campus we have no .22s, no BB guns, and even the demilitarised Springfield bolt actions used by the drill team and color guards are gone. And this doesn't effect the training of the cadets??!!
4.15.2009 12:01pm
Cave Man Lawyer:
Before the Fourteenth Amendment, no one thought that the Second Amendment would apply to the states.


I'm just a cave man. Your "amendments" and congressional districting maps are as confusing as the abstracted constellations in the sky. But as Orion's belt holds up his trousers, and by its existence does not indicate whether he is wearing a shirt, State government right protection does not imply what one might think it does.

State government constitutions' provisions for protections of the same rights as those of the federal government do not necessarily imply one or the other interpretation of the Bill of Rights. After all, member States existed before the union, and were thought to be able to do so in case the union dissolved, for an extreme example. Unless the State officially and explicitly took a position on it, restricting state government in the same way the federal government does tells us nothing.

I would argue that it's clear the Second Amendment applies to the rights of individuals. The question is whether only the federal government is restrained, being taken from the text of that level of government's charter, or whether it means exactly what it says, regardless of context of jurisdiction. I would also argue the latter.

At the end of the day, when you've been running from a hungry leopard for hours, it's not the animal's own biological mechanism to save it from fatal fatigue that will save you from being eaten; it is the pit you have dug ahead of time and covered with light limbs and large leaves. You can feed it, store it for later nurishment, or starve it into submission, but you can not hope to tame it. You are soft meat, and it is a toothy carnivore.
4.15.2009 12:06pm
Dilan Esper (mail) (www):
If liberals interpreted the Second Amendment the way that they interpret the First Amendment, there would be effectively no gun control laws of any sort.

I would think that interpreting the Constitution in a plausible and reasonable manner is more important that Clayton Cramer settling whatever scores he has with liberals. Apparently you don't.
4.15.2009 12:26pm
DangerMouse:
Would a state law making it illegal for anyone under 21 to have an abortion be held as constitutional? I don't buy the safety argument at all, since the Court's most cherished right is the right to kill.

Generally, libs will never accept any restriction on abortion. Abortion is sacrosanct to them. It's their Holy of Holies. But the Second Amendment - an actual, real, written, right in the Constitution - means nothing to them.

It will be a cold day in hell before the restictions imposed in the exercise of the second amendment are applied to abortion.
4.15.2009 12:44pm
Philistine (mail):

It will be a cold day in hell before the restictions imposed in the exercise of the second amendment are applied to abortion.



Good point.

For instance, there will never be a waiting period applied to abortion procedures....
4.15.2009 12:52pm
Dilan Esper (mail) (www):
Again, is the point to figure out what the content of the right to keep and bear arms is, or is the point to engage in what one might call "Constitutional jealousy", constantly worrying that right A isn't as "strong" as right B, or isn't protected in all the same situations.

Guns aren't speech and they aren't abortions. Any rational legal system would have different approaches for different rights. Apparently, for some people, it's more important that nobody get jealous of someone else's favored right than it is for provisions to get reasonable and plausible constructions that take into account the context of the particular right claimed.
4.15.2009 12:58pm
James Gibson (mail):
Liberals feel "hate speech" must be prohibited unless the hate speech is directed against people or groups that oppose the liberals on some other subject.

Under liberalisum, the right to a secret ballot is only for those who best can use such a right. When it stands against a policy they support, everyone who voted against must be disclosed and denounced in a public forum.

Under liberalisum, we have no individual rights from the first 10 amendments of the Constitution (Stevens Dissent, Heller case). Thus, we can only invoke Habeus Corpus if our petition comes from a group or collective large enough to pass merit. We also have no individual right to elect our representatives to Congress (Brady third response to the Heller Case).

And now soldiers who have served honorably in combat are now labeled as possible recruits for the KKK and have to be monitored as well as prevented from having arms. But Police who have no military function but are loyal members of the union get unmonitored access to assault rifles and 50 calibers.
4.15.2009 1:30pm
Melancton Smith:
Dilan Esper wrote:

Again, is the point to figure out what the content of the right to keep and bear arms is, or is the point to engage in what one might call "Constitutional jealousy", constantly worrying that right A isn't as "strong" as right B, or isn't protected in all the same situations.


"Constitutional jealousy"...this is a new tack, Dilan. Nice way to divert.

Why don't you explain the reasonableness of prior restraint with respect to the 2nd that you don't see with respect to any other right?
4.15.2009 1:37pm
Harvey Mosley (mail):

I would think that interpreting the Constitution in a plausible and reasonable manner is more important that Clayton Cramer settling whatever scores he has with liberals. Apparently you don't.



I thought the Constitution meant what it says. Silly me.
4.15.2009 1:42pm
Dilan Esper (mail) (www):
Why don't you explain the reasonableness of prior restraint with respect to the 2nd that you don't see with respect to any other right?

I don't know what you mean by "any other right". Prior restraints are not applicable in the context of criminal procedure rights. They are sometimes constitutional in the abortion context (judicial bypass in parental consent laws being one example). They are sometimes (but more rarely) constitutional in the speech context (parade permits being an example).

In other words, there isn't any magical incantation that "no constitutional right may ever be subject to a prior restraint". Certain types of prior restraints, such as content neutral, efficient licensing schemes, are approved even in the speech context because they are seen as serving important interests while leaving alternative channels of communication open. Other types of prior restraints are looked on with extreme skepticism, because they are attempts to circumvent what is seen as the central First Amendment principle, that government is not permitted to suppress ideas based on viewpoint or content.

If "prior restraints" are going to be flatly unconstitutional in the gun right context, it would not be because of the prior restraint doctrine in the First Amendment context. This is what I mean by "constitutional jealousy"-- there's plenty of gun rights advocates who are going to apparently get mad if their cherished right is in some sense less broad or "weaker" than the First Amendment, without any regard to the differences between guns and speech.

Rather, any "prior restraint" doctrine in the Second Amendment would have to be based on some conclusion that this type of gun regulation is categorically seriously harmful to the core principles behind the right to keep and bear arms, and is not sufficiently justified to stand.

Now you can, of course, make such arguments. But you have to make them. Simply whining about how it isn't fair that Louie Liberal gets a broad First Amendment but Charlie Conservative's Second Amendment isn't as broad isn't legal reasoning-- it's the discourse of second graders at recess.
4.15.2009 1:55pm
Visitor Again:
It took a constitutional amendment to make sure that 18 year olds could vote.

The analogy fails because there is no general right to vote protected by the Constitution while there is a general right to bear arms protected by the second amendment.
4.15.2009 1:55pm
Dilan Esper (mail) (www):
I thought the Constitution meant what it says. Silly me.

It's broad and ambiguous, which is why it has to be given a reasonable construction based on intent, the principles behind it, and the context in which rights claims are made. Saying "it means what it says" begs the question when you are talking about broad generalities.
4.15.2009 1:57pm
Floridan:
H.M.: "I thought the Constitution meant what it says. Silly me."

Harvey's right! Let's do away with law schools and the courts. Every man can be his own consitutional scholar.
4.15.2009 2:07pm
ASlyJD (mail):
Hey, considering my Con Law class taught me that almost every major court case of the twentieth century was decided by making a policy choice and then finding the logic to justify it*, it's not as crazy an idea as it sounds.

*Hansberry v. Lee being the one most clearly decided that way.
4.15.2009 2:24pm
J. Aldridge:
Visitor Again: "The analogy fails because there is no general right to vote protected by the Constitution while there is a general right to bear arms protected by the second amendment."

Are you sure it is declaring a right or does it, like all the other Nine Amendments, serve as security against "constructive enlargement" of national powers?
4.15.2009 2:24pm
Melancton Smith:
Prior restraint in the form of allowing parade permits and the like are not based upon the assumption that the paraders will be criminal but are based upon the necessary planning and response (shutting down roads, etc).

Most restrictions on firearms are based upon the assumption that law-abiding citizens are only law-abiding because they lack the means to go on shooting rampages.
4.15.2009 2:49pm
Melancton Smith:
By the way, requiring a parade permit to a march of armed citizens is certainly not unconstitutional.
4.15.2009 2:50pm
Dilan Esper (mail) (www):
Most restrictions on firearms are based upon the assumption that law-abiding citizens are only law-abiding because they lack the means to go on shooting rampages.

Really? I can think of several other reasons why there are restrictions on firearms:

1. Because even guns purchased by law abiding citizens sometimes get stolen.

2. Because registration, licensing, tracing, and the like could assist law enforcement in solving crimes and putting criminals behind bars.

3. Because certain types of weapons really aren't very useful for the types of purposes that law abiding citizens would want to use them for anyway.

Note that I am not saying that all these reasons or valid. There are counter-arguments to each one. All I am saying is that there are a lot of other reasons other than the assumption that every gun owner is a potential criminal why people might favor gun restrictions.
4.15.2009 2:56pm
SeaDrive:
3. Because certain types of weapons really aren't very useful for the types of purposes that law abiding citizens would want to use them for anyway.


I could argue that kayaks aren't very useful for water travel, and there are better ways to get down a mountain than skis. Kayaking and skis are associated with non-trivial accident and death rates, but I don't see anyone moving to ban them.

Let me anticipate the first response: the kayaker only drowns himself, not the school child waiting at the bus stop. Possibly, but if we get into weighing the value of one death against another we've started to lose our humanity. Besides, a lot of the people killed by guns are bad guys, so that attitude could eviscerate the statistics loved by the anti-gun crowd.

The gun control advocate is, in general, not a gun owner. (Supply your own list of egregious exceptions here.) He loses nothing if guns are banned. We can safely assume he would be angry if his own sport were banned, be it golf (all those lightning strikes!), or kayaking, or skiing, or whatever.

Back to the quote. A lot people own AK-47-type weapons for reasons that seem inadequate to me. "Because they are so freakin' cool to shoot" or "For home defense when the society breaks down and I have to keep my neighbor from eating my food supply." Well, I deplore the attitudes (for different reasons) but the cold fact is that these people do not show up on the police blotter.
4.15.2009 3:39pm
Dilan Esper (mail) (www):
Sea:

I thought I was clear about the fact that I wasn't endorsing all the rationales I set out. I was simply saying that when gun rights advocates assume that the "only" reason people support these types of restrictions is an assumption that gun owners are all prospective criminals is incorrect. There are other reasons, whether you think there are good ones or bad ones.
4.15.2009 3:42pm
Snaphappy:
So the Constitution does not contain a general right to vote, even though the right of citizens to vote is the only right that is mentioned not just once but four times in the Constitution?

Do enlighten me as to how there is no "general" right to vote?
4.15.2009 5:41pm
FWB (mail):
Bicker! Bicker! Bicker!

Most of the statements allowing for govt control of speech etc are based on irrational court rulings used to expand govt coercion of the people.

First Amendment - Can anyone state that those who framed this were calling for the overthrow of the British govt just shortly before? Or calling for someone to kill the King? But when the shoes on the other foot we have draconian laws that jail persons for making similar statements today. What is the 1st amendment useful for if not for protecting the type of speech that is often cited as not protected?

Because the feds are required to guarantee a republican form of govt, the Constitution would be the most appropriate location to place the core requirements for states (and the feds) to meet. We call those core requirements the Bill of Rights. By placing them at the end of the Constitution and calling them Amendment "OF" the Constitution, one should be able to grasp their applicability to all levels of govt (Barron notwithstanding).

Tiochfaidh ar la!
4.15.2009 5:44pm
J. Aldridge:
Snaphappy said: "So the Constitution does not contain a general right to vote, even though the right of citizens to vote is the only right that is mentioned not just once but four times in the Constitution?"

There is no right to vote anywhere in the US Constitution. There is only security against state voter qualifications based on such things as race or sex.

As far as a State Legislature or a State convention should trench upon the rule expressed in the Fifteenth Amendment relating to race, color, and previous condition of servitude, and to those subjects only, its legislation would be void, and Congress could interfere under the second clause of the amendment to correct that legislation. To that, I agree; but suppose the State affixes as a qualification of a voter the necessity of being the owner of, say, two hundred dollars' worth of property. Suppose the State should alter its Constitution so as to require from the colored man the possession in his own right of two hundred dollars' worth of property, which is the old rule in the State of New York, does the Senator from Nevada hold it to be in the power of Congress to alter in any way by congressional enactment that qualification of the State?

No, sir. Why not? Because the qualification does not relate to color, race, or slavery, but only to property, the subjects being as distinct from each other as the sun is from the moon. No, sir; Congress in such a case as that would have no authority whatever to interfere to correct the evil… .

The States have exercised the power of controlling, regulating, and restricting popular suffrage from the commencement of the State governments down to present time. It is one of the rights reserved to the States, and is to be exercised in its fullness and in its plenitude without any control on the part of Congress or any question being put by Congress to them; and that will be the case until the Fifteenth Amendment shall have been adopted, that amendment relating only to color, race, and slavery, not to property, not to educational qualifications, or anything except these three specific subjects.

---Jacob M. Howard

Or how about....

The proposition is clear that no citizen of the United States can rightfully vote in any State of this Union who has not the qualifications required by the Constitution of the State in which the right is claimed to be exercised, except as to such conditions in the constitutions of such States as deny the right to vote to citizens resident therein "on account of race, color, or previous condition of servitude." The adoption of the Fifteenth Amendment to the Constitution imposing these three limitations upon the power of the several States, was by necessary implication, a declaration that the States had the power to regulate by a uniform rule the conditions upon which the elective franchise should be exercised by citizens of the United States resident therein.

The limitations specified in the Fifteenth Amendment exclude the conclusion that a State of this Union, having a government republican in form, may not prescribe conditions upon which alone citizens may vote other than those prohibited. It can hardly be said that a State law, which excludes from voting women citizens, minor citizens, and non-resident citizens of the United States, on account of sex, minority or domicile, is a denial of the right to vote on account of race, color, or previous condition of servitude. [Source: House of Representatives, Committee on the Judiciary, Victoria C. Woodhull. H.R Report. 22, 41st Cong., 3d sess., January 30, 1871]

---John A. Bingham
4.15.2009 6:22pm
Michael Ejercito (mail) (www):

Because even guns purchased by law abiding citizens sometimes get stolen.

Including guns owned by the police and the Secret Service?


2. Because registration, licensing, tracing, and the like could assist law enforcement in solving crimes and putting criminals behind bars.

Any examples of this happening?



3. Because certain types of weapons really aren't very useful for the types of purposes that law abiding citizens would want to use them for anyway.

So then there is nothing wrong with law abiding citizens having weapons used by the government.
4.15.2009 8:35pm
Dilan Esper (mail) (www):
Michael:

Again, as I said, my point wasn't about the relative validity of those rationales, but that they exist. I will say it one more time. Plenty of gun rights advocates ASSUME that the only reason one could possibly want to regulate guns is because the person assumes that all gun owners are potential criminals. That very argument was made upthread. In fact, plenty of people have other reasons-- whether good or bad-- why they want to regulate guns.

Since you mention it though, I might repeat what I have said in other threads, that the gun rights talking points on registration are completely full of it. We have at least 100 reported California appellate cases where the registration of the gun was considered a relevant piece of evidence in establishing the guilt of the defendant. Given all the cases that are either never tried due to a guilty plea, never appealed, or never produced an appellate opinion, that probably translates into at least 5,000 cases where the registration of the gun was useful in helping put the criminal behind bars. And that's just one state.

So yes, plenty of crimes ARE indeed committed with registered guns, and plenty of times the gun registration is a useful piece of evidence. The gun rights talking point on this issue is complete bunk.
4.15.2009 9:13pm
http://volokh.com/?exclude=davidb :

I think there is a rifle made in almost any caliber. It's a pretty silly question.

I don't think I've ever seen a rifle chambered in .38 Special, but point taken.

By the way, am I the only one who tries to kill himself when reading Cave Man Lawyer's posts? There's something about his combination of (a) a stupid running joke, poorly executed and (b) really, really bad legal analysis. It makes me want to hurl.

Although I guess my handle could be thought of as a stupid running joke. Okay, I take it all back.
4.15.2009 11:03pm
Melancton Smith:
Dilan Esper:

So yes, plenty of crimes ARE indeed committed with registered guns, and plenty of times the gun registration is a useful piece of evidence. The gun rights talking point on this issue is complete bunk.


I can just see all those heinous criminals taken off of the streets who otherwise would have skated but for the damning evidence of a gun registration!

The statistical irrelevance of its effect can hardly outweigh the financial cost alone not to mention the imposition on the millions of law-abiding gun owners.
4.15.2009 11:51pm
Kirk:
I don't think I've ever seen a rifle chambered in .38 Special, but point taken.

You need to look just a little bit harder. (All of Marlin's competitors in the lever-action arena make similar models.) Lever-action rifles in .38 Special/.357 Magnum are very popular, as it's pretty much the cheapest possible centerfire rifle ammo, and also has very light recoil.
4.16.2009 2:24am
Ricardo (mail):
True, but one always has the physical ability to "yell fire in a crowded theater". We don't have our mouths sewn shut upon entering (though maybe...). Also, if there were a fire, wouldn't we want to have the ability to yell "fire"?

All good points but I was responding to someone who thought that regulating guns because they are dangerous logically leads to arguments about regulating speech because it also is dangerous. The Supreme Court, for a variety of reasons, has largely rejected prior restraint in First Amendment cases. Unlike firearms regulations, speech regulations would inevitably be vague and open to over-zealous enforcement. Prior restraint would become arbitrary censorship.

By contrast, statutes and regulations can specify pretty clearly which arms are allowed and which aren't. In any case, no court is going to recognize a right to own anti-aircraft weaponry, RPGs or nuclear weapons.

Moreover, you neglected the second part of my post where there clearly is a restriction on juveniles' 1st Amendment rights. Juveniles do not have the same rights as adults to purchase material that is "harmful to minors." Material that is "harmful to minors" but not "obscene" is, however, protected by the 1st Amendment for adults.
4.16.2009 5:07am
http://volokh.com/?exclude=davidb :

You need to look just a little bit harder.

I sit corrected! I idiotically didn't consider the fact that you can shoot .38 Special in a .357.....

But I am just a simple cave man, and... (sound of vomiting).

So is there ANY handgun caliber not available in a rifle? Maybe something small?
4.16.2009 9:33am
pintler:

So is there ANY handgun caliber not available in a rifle? Maybe something small?


Ones which I am not aware of (which is a far cry from 'there aren't any'): 357 SIG, 45 GAP, 25 ACP, 32 ACP, the 9mm calibers that are shorter or longer than 9x19, 10mm, etc. And there are less mainstream calibers (357 Maximum, etc).

I'm speaking of production rifles; who knows what people cook up on their own, e.g. 45 ACP SMLEs.

Working the other way - finding a rifle caliber for which no pistol has been chambered - is even harder - it would be an obscure caliber indeed for which no one has ever chambered a Thompson Contender.

In general, trying to classify calibers as exclusively 'pistol' or 'rifle' seems pretty difficult. Rifles in the common pistol calibers (22, 9mm, 38/357, 40, 44, 45 ACP and 45 LC) are quite common. Pistols in the common rifle calibers (30-06, 223, ...) are IMHE less common, though by no means rare..
4.16.2009 11:06am
pintler:

I can just see all those heinous criminals taken off of the streets who otherwise would have skated but for the damning evidence of a gun registration!


There is an interesting book called 'Shots in the Dark' by William Vizzard, that I recommend to anyone interested in firearms policy. Mr. Vizzard is a career ATF agent, who has some opinions that are not exactly from the VPC playbook, e.g. he thinks 'if you can own it, you shouldn't face further restrictions on carrying it'. He does advocate registration, though. He believes there is a fairly common fact pattern where, e.g., a felon is pulled over, the police find a gun under the seat, and the felon's girlfriend swears it's her gun.

It's one thing to make a cost/benefit argument against registration, but I don't think you can just dismiss it as 'of no law enforcement value whatsoever'.
4.16.2009 11:17am
Melancton Smith:

He believes there is a fairly common fact pattern where, e.g., a felon is pulled over, the police find a gun under the seat, and the felon's girlfriend swears it's her gun.


How is that scenario different if the girlfriend registers the gun?

If the GF makes a straw purchase, buying the gun legitimately for her BF, then if the ATF uses a trace under current law, it will show as sold to the GF. Effectively registered already. At least for 10 years.
4.16.2009 11:22am
Melancton Smith:
Calibre is a short hand way of referring to something a bit more complicated.

There are plenty of rifles that shoot the same calibre of ammo as a pistol. However, one must also consider the casing.

Modern rifles generally use casings and powder loads that are greater than used in pistols, even for the same calibre.

For instance, I have 7.62x38mm Russian pistol ammo, 7.62x39mm AK/SKS ammo, and 7.62x54mm Russian rifle ammo. All the same "calibre" but none of them are interchangeable and they are all quite different ballistically.

Of course, many rifles shoot actual pistol ammunition. It is quite convenient in Cowboy Action Shooting, for instance, to use the same ammo for your revolvers and your lever action rifle. Indeed as pointed out by commenter above, .38 is very popular for both single action revolvers and lever action rifles.
4.16.2009 11:31am
pintler:

How is that scenario different if the girlfriend registers the gun?


It's not - but she has to do that beforehand, or she is looking at a 'possession of unregistered firearm' charge. He can't just toss it under the seat when the flashing light comes on. Mr. Vizzard feels few crooks will plan that far ahead.
4.16.2009 12:26pm
Melancton Smith:
pintler wrote:

How is that scenario different if the girlfriend registers the gun?



It's not - but she has to do that beforehand, or she is looking at a 'possession of unregistered firearm' charge. He can't just toss it under the seat when the flashing light comes on. Mr. Vizzard feels few crooks will plan that far ahead.


So I'm still not seeing the grand benefit that outweighs the heavy cost placed upon the millions of lawful gun owners...
4.16.2009 1:51pm
Dilan Esper (mail) (www):
I can just see all those heinous criminals taken off of the streets who otherwise would have skated but for the damning evidence of a gun registration!

Criminal cases are a mosaic of various pieces of evidence. It's almost impossible to say that one piece of evidence is determinative. Was Phil Spector convicted because of Lana Clarkson was shot in his house, because the gun was his gun, because it was found in his living room, or because he said to the police that he shot her? Or was it a combination of all those things.

Gun registrations are part of the mosaic in many California cases. You would never say about, say, regular police beat patrols, "can you show me one murderer who was convicted solely because he was spotted by an officer on beat patrol?". Or, about shoe print evidence, "can you show me one murderer who was convicted solely because of a shoe print evidence". Evidence is useful in light of other evidence, which cumulatively forms the basis for a conviction. We have 100 reported appellate cases in California where a gun registration formed part of the mosaic.

It's OK to oppose gun registration. It's silly to pretend that it can never be a useful crime-fighting tool.
4.16.2009 2:39pm
Melancton Smith:
Dilan Esper wrote:

It's OK to oppose gun registration. It's silly to pretend that it can never be a useful crime-fighting tool.


I'm saying the dubious efficacy of the registrations in 100 appellate cases does not anywhere nearly validate the imposition on millions of lawful gun owners.
4.16.2009 4:03pm
Melancton Smith:
Not to mention that criminals who have guns illegally have been found to be constitutionally protected from charges due to not registering. It would be self-incriminating.

Nope, registration is not narrowly focused enough for the results being achieved. Back to the drawing board.
4.16.2009 4:20pm
Dilan Esper (mail) (www):
Melancton:

Fine, then, make those arguments. I never call people out who claim that the burden of registration exceeds its value.

I do, however, call out people who make the completely BS claim that there's no way that registration ever helped solve a crime.
4.16.2009 4:38pm
markm (mail):
There are different kinds of registration. How many crimes are solved by the CA registration that wouldn't have been solved (perhaps a few days later) by the federal system for tracing weapons?

In this federal system, when you buy a gun from a licensed dealer, you fill out a form at the dealer - and it stays at the dealer. When a local PD calls up the BATF and asks for a trace on a gun serial number, they have to first contact the manufacturer to find where that serial number was shipped. Possibly they have to contact a distributor. Finally, they contact the dealer and get a name and address. There may be further complications if people moved - but registration databases aren't always up to date, either.

In the federal system, there's no central database. The government does not have a list of gun owners. While such a list could in theory be assembled from the information on record, it cannot be done secretly or quickly over any widespread area.

I think the federal trace system achieves a reasonable balance. It burdens legal gun owners very little and saves enough information to solve most of the crimes where a legally purchased crime gun is found by the police. This doesn't catch career criminals, who obviously are going to obtain any guns they intend to use in crimes through untraceable illegal channels, but it does make it a little harder for them to get those guns.

On the other hand, when a state runs a burdensome registration system in addition to the federal trace system, I have to wonder whether the burden is the real object, or the legislators were just too ignorant to know that they are duplicating an existing system.
4.16.2009 9:37pm
ReaderY:
In my view the state has the ability to set the age of majority, certainly within a range of "reasonable" ages taking into account U.S. history which certainly include both 18 and 21.

After all, states can set the age for marriage, voting, and signing contracts, among other matters that are constituional rights for "adults." The fact that most states have converged on a certain age has no constitutional significance, just as the constitution doesn't require driving on the right hand side of the road or measuring gas in gallons even though most or all states happen to do so.) I see no reason why gun ownership should be any different.

The constitution has a maximum age requirement of 18 for one matter only, voting in federal elections. The same constitution has higher minimum age requirements for various federal offices. The continued existence of these higher minima is itself proof that 18 couldn't have been intended to be the age for everything. The states continue to have a power to determine the age of majority for other matters, and they can set a separate age for each matter if they want.

Whether New York City has a power to set a different age from the rest of New York State is a matter of state law, not federal or constitutional law.
4.17.2009 1:52am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.