Tag Archives | Heller

Koppelman’s Two Gun Minimum

At Balkinization, Andy Koppelman has witty – and wise – rejoinder to the discussion Nick and I have had here about the plural of “Arms“:

If this strict textualism is to be followed, there is an interesting implication: perhaps there is only a right to bear “arms” – plural – but not to bear a single arm, about which the Constitution is silent … There are some attractions to this as a matter of policy. If the price of carrying a gun is that you have to carry two, most people will find this literally too heavy a price to pay. Guns weigh a lot. So a government that wants to minimize the amount of artillery on the street might well want to pursue this.

I comment on this excellent point at Balkinization. Here I might add that Koppelman’s hypothetical – that requiring people to carry two guns would be a massive burden – only illustrates the severity of currently permissible (or at least on the books) burdens. One could carry a second revoler that costs only slightly more than the Illinois mandatory carry-license fee of $150, and that (amazingly) weighs, unloaded, less than an Iphone, and more importantly, far less than the difference in weight between most ten and 15 rounds of ammunition. Thus if the choice were a binary one between a two-gun minimum, which Koppleman sees as impractical, and the comprehensive package of Illinois carry restrictions, one might see the former as actually less onerous. [...]

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Response to Prof. Rosenkranz: ArmS & the Man – or Arms & the People

Nick takes issue with my suggestion that the Second Amendment on its face bars laws restricting people to one gun, such as that currently proposed by Gov. Quinn in Illinois.

My (first) argument is not an originalist or purposivist one, but rather a purely textual one. The primary meaning of “arms” is plural. Nick argues the plural is used to go with “the right of the people.” The real “reason,” I think, the plural term is used is probably because that is how it was written in the English Bill of Rights (and the Magna Carta). The question is what are the consequences of those possibly unconscious decisions and associations for a textual reading of the Constitution.

Certainly the plural arms goes with the plural “people.” But both are independent drafting choices. For example, the right of the people could have been “to be armed,” which would leave out the plural. Or it need not have been written in terms of “the People.” Nick compares it the Fourth Amendment. I like that: is the “people’s” right to be secure in their “houses, papers, and effects” even arguably singular, or be restricted to one house, one paper, one effect? Could papers be limited to one piece of paper? It is not “people” that makes “papers” plural, it is the way people commonly use paper.

Turning to purpose, the Framers used a plural word; they certainly did not intend to rule out “one gun” rules, because as far as I know, they had never encountered such restrictions, and were more interested in gun minimimums than maximums. None the less, the plural has consequences. Nor are the consequences absurd (this still permits two-gun limits) though they may be undesirable from certain policy perspectives. Nor is the reading contradicted by substantial originalist [...]

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