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Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda:

I now have a pretty clean copy of this forthcoming UCLA Law Review article of mine, and I thought I'd post it and invite comments. There's still some time (though not a lot) to make corrections, so please let me know about any errors you find. My one request is that before you respond to some of the items I note below, you look at the relevant parts of the article to see whether that response has already been taken into account.

I expect the article will not entirely please either gun rights maximalists or gun rights minimalists. For instance, I conclude that bans on so-called "assault weapons" -- bans that I think are entirely pointless -- are probably constitutional; not every bad idea is an unconstitutional idea, even where constitutional rights are involved. At the same time, I argue that there should be a right to carry loaded weapons in public (except for a few places). Even if one accepts the correctness of Heller's conclusion that concealed carry can be restricted, your right to keep and bear arms for self-defense must generally include your right to have those arms where self-defense is needed, not just to have them at home when you're out on the street. Whether this idiosyncratic (moderate? extremist in different derections?) position on the constitutional questions (on the policy questions, I'm generally skeptical of gun restrictions) is right or wrong is for you to judge. But I thought I'd note it so that people know what to expect.

Note also that the first part of the article proposes a general analytical framework that can also help think through existing doctrine for some other constitutional provisions -- I hope that will be useful even for people who aren't at all interested in the right to keep and bear arms.

In any case, here is the Introduction:

The Second Amendment, the Supreme Court has held, secures an individual right to keep and bear arms for self-defense. Whether or not the federal right will be applied to the states, at least 40 state constitutions secure a similar right. How should courts translate this right into workable constitutional doctrine?

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The Right To Bear Arms, Minors, and 18-to-20-Year-Olds (and Maybe Even Older):

My right to bear arms article is quite long, so I don’t think I can serialize it on the blog the way I’ve done with some past articles. But I thought I’d blog about a few particularly interesting issues — often ones that are part of the “research agenda” aspect of the article, because my goal is just to identify the some of the key arguments, not to give a definitive answer.

Note that here, as in future posts, I use the scope / burden / reducing danger taxonomy I mention in the Introduction, and discuss at length in Part I of the article. (Short version: Scope arguments for restricting a right, which I think are often quite strong: A restriction might not be covered by the constitutional text, the original meaning of the text, the traditional understanding of the text’s scope, or the background legal principles establishing who is entitled to various rights. Burden arguments for restricting a right, which I also think are often quite strong: A restriction might only slightly interfere with rightholders’ ability to get the benefits that the right secures, and thus might be a burden that doesn’t rise to the level of unconstitutionally “infring[ing]” the right. Reducing danger arguments for restricting a right, which I find troublesome for reasons I discuss at pp. 20-31: A restriction might reduce various dangers (in the case of arms possession, chiefly the dangers of crime and injury) so much that the court concludes that even a substantial burden is justified. This is where talk of intermediate scrutiny or strict scrutiny would normally fit, though, as Part I.C argues, such labels likely obscure more than they reveal.)

So with this, on to my first excerpt: The right to bear arms in self-defense — both under the Second Amendment and under the 40+ state constitutional provisions that secure such a right, often quite expressly — and young people, both under 18 and 18-to-20. I have omitted most of the footnotes; to see them, please look at the full article.

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The Right To Keep and Bear Arms in Self-Defense and Bans on Carrying Guns Outside the Home:

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. 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.

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Heller stated that bans on concealed carry of firearms are so traditionally recognized that they must be seen as constitutionally permissible. This tradition does indeed go back to 1813 and the following decades, at least in some Southern states, and by the end of the 19th century it had become a pretty broadly accepted proposition. A smattering of state court cases has struck down such bans, but nearly all courts have upheld them, and many state constitutions expressly authorize them.

The same cannot, however, be said about general bans on carrying firearms in public, which prohibit open carrying as well as concealed carrying. Heller expressly concluded that “the right to ... bear arms” referred to carrying arms. Ten state constitutions strongly imply this, by protecting “bear[ing] arms” but expressly excluding “carrying concealed weapons.” (See Colo. Const. art. II, § 13; Idaho Const. art. I, § 11; Ky. Const. § 1; La. Const. art. I, § 11; Miss. Const. art. III, § 12; Mo. Const. art. I, § 23; Mont. Const. art. II, § 12; N.M. Const. art. II, § 6; N.C. Const. art. I, § 30; Okla. Const. art. II, § 26; see also Tenn. Const. art. I, § 26 and Tex. Const. art. I, § 23, authorizing the legislature to “regulate the wearing of arms with a view to prevent crime,” which suggests that “bear[ing] arms” includes “wearing” them, which is to say carrying them in public, though subject to regulations.)

Other constitutions don’t mention carrying as such, but they do use the word “bear.” And many courts applying state constitutional provisions have held or suggested that carrying in public is generally constitutionally protected, at least outside some special places such as businesses that serve liquor, churches, or polling places, though some courts have disagreed.

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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The Right To Keep and Bear Arms in Self-Defense, and Taxes, Fees, or Regulations That Indirectly Raise Gun or Ammunition Prices:

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.

* * *

Taxes on guns and ammunition, or gun controls that raise the price of guns and ammunition, would be substantial burdens if they materially raised the cost of armed self-defense. A $600 tax proposed by Cook, Ludwig & Samaha [in another article in the same symposium for which my article was written -EV], justified by an assertion that “keeping a handgun in the home is associated with at least $600 per year in externalities,” is one such example. “The poorly financed [self-defense] of little people,” like their “poorly financed causes,” deserves constitutional protection as much as the self-defense of those who can afford technologically sophisticated new devices or high new taxes. (See Martin v. City of Struthers, 319 U.S. 141, 146 (1943) (striking down ban on door-to-door solicitation, partly on the grounds that “[d]oor to door distribution of circulars is essential to the poorly financed causes of little people”); see also City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (striking down ban on display of signs at one’s home, partly on the grounds that “[r]esidential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute.”).) This is true whether the tax or expensive control is imposed on gun owners directly, or on gun sellers or manufacturers, just as a restriction on abortion can be a substantial burden even if it’s imposed on doctors and not on the women who are getting the abortions.

High gun taxes should remain presumptively impermissible even if they are based on some (doubtless controversially calculated) estimate of the public costs imposed by the average handgun: The average takes into account both the very low cost stemming from guns that are always properly used by their owners, and the very high cost stemming from guns that are used in crime. The law-abiding owners thus are not just being required to “internalize the full social costs of their choices,” even if you take into account as a “cost” the possibility that any gun will be stolen by a criminal. They are also being required to internalize the social costs of choices made by criminal users of other guns -- much as if, for instance, all speakers were charged a tax that would be used to compensate those libeled by a small subset of speakers.

Nonetheless, some modest taxes might not amount to substantial burdens, as a review of taxes and fees on other constitutional rights illustrates. Taxes based on the content of speech are unconstitutional, regardless of their magnitude. But this is a special case of the principle that discrimination based on certain kinds of characteristics -- race, sex, religiosity, or the content or viewpoint of speech -- is unconstitutional. Setting aside these special areas of constitutionally forbidden discrimination, and setting aside poll taxes, which were constitutional until the Twenty-Fourth Amendment forbade them, other kinds of taxes, fees, and indirect costs imposed on the exercise of constitutional rights are often permissible.

The government may require modest content-neutral fees for demonstration permits or charitable fundraising permits, at least if the fees are tailored to defraying the costs of administering constitutionally permissible regulatory regimes. The same is true for marriage license fees and filing fees for political candidates (though the Court has held that the right to run for office is protected by the First Amendment). The same is doubtless true of costs involved in getting permits to build on your own property, a right protected by the Takings Clause.

Likewise, regulations of the right to abortion are not rendered unconstitutional simply because they increase the cost of an abortion. The Court so held when upholding a 24-hour waiting period even though it required some women in states with very few abortion providers to stay in a hotel overnight or miss a day of work, and when upholding viability testing requirements that might have marginally increased the cost of an abortion. So long as the extra costs don’t amount to “substantial obstacle[s]” to a woman’s getting an abortion, they are constitutional.

At the same time, when a cost is high enough to impose a substantial obstacle to the exercise of a right for a considerable number of people, it is unconstitutional. This is likely also true when a cost goes materially beyond the cost of administering the otherwise permissible regulatory scheme, as several federal circuit court cases hold and some U.S. Supreme Court cases suggest. And if a law substantially burdens rightholders who are relatively poor, an exemption would likely be constitutionally required, as it has been with regard to permit fees for speakers and candidates.

I acknowledge that any such regime necessarily creates linedrawing problems and poses the danger that a genuinely substantial burden will be missed by judges who are deciding how much is too much. But, first, there is ample precedent for such tolerance for modest fees in other constitutional rights contexts, and it seems neither likely nor normatively appealing for the courts to conclude that the right to bear arms is more protected than these other rights. Second, the caselaw from those other areas can provide guideposts for the linedrawing process. And third, the caselaw from those other areas (as well as the general logic of the substantial burden threshold) can provide justification for a constitutional requirement that poor applicants be exempted from fees -- say, fees that dramatically increase the cost of a new gun, or that are required for periodic reregistration of an old gun -- that are substantial for them even if relatively minor for others.

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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.

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