Archive | Guns

Gun Control, Mass Shootings, and Political Ignorance

Law professor Josh Blackman and Yale student Shelby Baird have posted an interesting paper entitled “The Shooting Cycle,” on the reaction of public opinion to mass shooting incidents, like the tragic events in Newtown and the Washington Navy Yard in 2012 and 2013. Political ignorance plays an important role in their explanation for why such events result in temporary spikes in public support for gun control, followed by reversion to the mean. Here is Josh’s more detailed description of the findings:

The pattern is a painfully familiar one. News breaks that an unknown number of victims were killed by gunfire at a school, store, or other public place. The perpetrator wantonly takes the lives of innocent people. After the police arrive, the perpetrator is soon captured or killed, often by suicide. Sadness for the losses soon gives way to an emotional fervor for change. Different proposals for gun control are advanced—some ideas that were proposed earlier, but never obtained popular support, and other ideas that are developed in response to the recent tragedy. Politicians and advocates are optimistic for reform. However, as time elapses, support for these laws fades…..

This contribution to a symposium issue of the Connecticut Law Review on the Second Amendment peels back much of the rhetoric surrounding gun violence, and, distant from the passions, explores how the government and people react to these tragedies. This article offers a sober look at what we label the shooting cycle, and assesses how people and governments respond to mass killings….

We address this important issue in five parts. In Part I, we define the term “shooting,” and quantify how frequent they occur. Shootings, labeled “mass murders” by the FBI, are killings where the “four or more [murders] occur[] during the same incident, with no distinctive time period between the

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Right to Carry Guns on Federal Recreation Areas, and Right to Possess in Tents on Those Areas

Today’s Morris v. U.S. Army Corps of Engineers (D. Idaho Jan. 10, 2014) strikes down an Army Corps of Engineers regulation barring possession of loaded guns in recreation areas surrounding Corps dams. The court holds that tents are akin to homes, where Second Amendment rights are protected. The court also holds that the Second Amendment protects the right to carry guns as well as to possess them at homes, so that the regulation is unconstitutional even as to carrying outside tents. And the court rejects the argument that the government may restrict such gun possession and carrying on the grounds that the government owns the property, and has no obligation to open the property to the public in the first place.

It’s not clear how the opinion will fare on appeal, but the case should be interesting to watch. Thanks to Charles Nichols for the pointer. [...]

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Heller As an Advertisement for Originalist Methodology

Eric Posner has posted a few comments on our first class on originalism, including his thoughts on Heller:

It seems to me that the text of the Second Amendment suggests that the right to bear arms is tied to serving in a militia, though not unambiguously, and that the exhaustive historical research discussed by the Court does not resolve the ambiguity one way or the other. A general preference for allowing voters to make up their own mind, the absence of any allegation or evidence of political failure, a relevant precedent if not a strong one, and a very long history of gun control legislation across the country all point to upholding the statute. Both Scalia’s and Stevens’ opinions are horrible messes. Scalia’s parsing of the text is wooden and ludicrous. Both of them select the evidence they like and interpret it tendentiously. Neither show any feeling for history. The opinions are tedious, pompous anti-models of judicial writing, no advertisement for the method of originalism.

It will probably be no surprise to readers that I have a different view. It is true that the opinions in Heller are very long, and go into much more historical detail than Supreme Court opinions usually do. The length and density of the opinions is unfortunate in one sense. It makes the historical questions seem much harder, or much more intractable, than they really are if you sit down and go through the materials carefully. On the other hand, shorter more engimatic opinions have costs too, because then the Court is accused of going too fast, not explaining itself, etc.

(I also wish that the Heller opinions had been shorter because then it might have been feasible to assign Larry Solum’s excellent article on Heller and interpretive methodology.)

In any event, it seems to [...]

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“No Firearm May Be Sold, Acquired or Otherwise Transferred Within [Chicago], Except Through Inheritance”

That’s what Chicago Municipal Code § 8-20-100 provides (with some exceptions for sales to police officers, and loans at shooting ranges). Today’s Illinois Ass’n of Firearms Retailers v. City of Chicago (N.D. Ill. Jan. 6, 2014) holds that this violates the Second Amendment (some paragraph breaks added):

[The Second Amendment] right must also include the right to acquire a firearm …. Chicago’s ordinance … outright ban[s] legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms, and at the same time the evidence does not support that the complete ban sufficiently furthers the purposes that the ordinance tries to serve….

The City argues … that these ordinances do not ban acquisition, but merely regulate where acquisition may occur. It is true that some living on the outskirts of the City might very well currently live closer to gun stores now than they would absent these ordinances. But Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) [which struck down a ban on gun ranges in Chicago -EV], makes clear that this type of argument “assumes that the harm to a constitutional right is measured by the extent to which it can be exercised in another jurisdiction. That’s a profoundly mistaken assumption.” It was no answer there that plenty of gun ranges were located in the neighboring suburbs, or even right on the border of Chicago and the suburbs. Instead, the Seventh Circuit drew on First Amendment jurisprudence to reason that Second Amendment rights must be guaranteed within a specified geographic unit — be it a city or a State.

Indeed, this reasoning makes sense, because if all cities and municipalities can prohibit gun sales and transfers within their own borders, then all gun sales and transfers may be banned across a wide

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Do Pistol Grips Make Semi-Automatic Rifles More Dangerous, Because They “Aid Shooters when ‘Spray Firing’ from the Hip”?

Laws that ban so-called “assault weapons” often define them with reference to various features, such as a rifle’s having a bayonet mount or “a pistol grip that protrudes conspicuously beneath the action of the weapon” (to quote the New York assault weapon ban upheld by N.Y. State Rifle & Pistol Ass’n v. Cuomo (W.D.N.Y. Dec. 31, 2013)). One reason given for focusing on rifles with such pistol grips is that, in the words of the court, this “feature[] aid shooters when ‘spray firing’ from the hip.”

I’m not an expert on firearms tactics, but I’m very skeptical of this. Here is what I understand to be the sensible way of using such a pistol grip (whether you’re a law-abiding citizen or a criminal):

You’re holding on to the pistol grip with the same hand that’s ready to pull the trigger, but you’re aiming: you’re looking down the barrel of the rifle, because you want to hit what you’re shooting at.

Now here is what I understand to be — more or less — people’s image of “‘spray firing’ from the hip”:

The trouble is that, because you’re not actually sighting down the barrel of the gun, you’re going to be extremely inaccurate (unless you’re Raylan Givens). And while such lack of accuracy may matter less if you’re shooting a fully automatic (not that I recommend shooting this way even with a fully automatic), it will make your shooting much less effective if you’re shooting a semi-automatic — again, whether you’re a law-abiding citizen or a criminal.

People “spray firing” a semi-automatic from the hip are thus making themselves less dangerous to the people they’re shooting at (compared to normal firing when one is actually sighting down the barrel). Nor are they making it easier to fire [...]

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New York 7-Round Limit Struck Down on Second Amendment Grounds, Assault Weapons Ban and >10-Round Magazine Ban Upheld

The decision, by a federal trial court, is today’s N.Y. State Rifle & Pistol Ass’n v. Cuomo (W.D.N.Y. Dec. 31, 2013). The court’s conclusion:

[T]his Court finds that the challenged provisions of the SAFE Act — including the Act’s definition and regulation of assault weapons and its ban on large-capacity magazines — further the state’s important interest in public safety, and do not impermissibly infringe on Plaintiffs’ Second Amendment rights. But, the seven-round limit fails the relevant test because the purported link between the ban and the State’s interest is tenuous, strained, and unsupported in the record.

Further, three aspects of the law — the “and if” clause of N.Y. Penal Law § 265.36, the references to muzzle “breaks” in N.Y. Penal Law § 265.00(22)(a)(vi), and the regulation with respect to pistols that are “versions” of automatic weapons in N.Y. Penal Law § 265.00(22)(c)(viii) — must be stricken because they do not adequately inform an ordinary person as to what conduct is prohibited.

Finally, because the SAFE Act’s requirement that all ammunition sales be conducted in-person does not unduly burden interstate commerce, it does not violate the Commerce Clause.

Here’s the heart of the analysis of the 7-round limit:

The SAFE Act adds New York Penal Law § 265.00(37), which makes it “unlawful for a person to knowingly possess an ammunition feeding device where such device contains more than seven rounds of ammunition.” Unlike the restrictions on assault weapons and large- capacity magazines, the seven-round limit cannot survive intermediate scrutiny.

It stretches the bounds of this Court’s deference to the predictive judgments of the legislature to suppose that those intent on doing harm (whom, of course, the Act is aimed to stop) will load their weapon with only the permitted seven rounds. In this sense, the provision is not “substantially

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Colorado Sheriffs and the duty to enforce statutes

I represent 55 elected Colorado Sheriffs, plus one retired police officer, in a federal civil rights lawsuit that has been filed against two bills passed by the state legislature last March. Information about the case, including major case filings, is available at I am writing this post to correct a serious and inaccurate accusation that has been made about my clients in the press recently.

On Monday, the New York Times published an article titled “Sheriffs Refuse to Enforce Laws on Gun Control.” Today, National Review Online published an article by Charles W. Cooke titled “Sheriffs Have No Veto: Refusing to enforce constitutionally dubious legislation is no better when they do it.” The article equated the Colorado Sheriffs to President Obama for lawlessly refusing to enforce certain statutes. As a matter of law, this accusation is wrong.

As for President Obama: The U.S. Constitution mandates that the President “shall take Care that the Laws be faithfully executed….” Art. II, sect. 3. Critics of the President accuse him of violating this specific, controlling law in various ways, such as unilaterally delaying the business mandate in Obamacare. Let us assume for the sake of argument that at least some of these charges are accurate. If so, the President would be flouting a specific duty imposed by law.

As for the Colorado Sheriffs: Each of the Sheriffs has his or own policy for dealing with new anti-gun bills of HB 1224 (magazine ban) and HB 1229 (temporary private loans of firearms must be treated like firearms sales, and routed through a gun store, with attendant record-keeping, fees, etc.). It would not be correct to claim that the majority of the Sheriffs have said that they will categorically refuse to enforce the laws. But let’s consider one of [...]

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10-Day Gun Waiting Period Potentially Unconstitutional

So concludes today’s Silvester v. Harris (E.D. Cal. Dec. 9, 2013). The analysis (some paragraph breaks added):

The WPL [the Waiting Period Law] prohibits every person who purchases a firearm from taking possession of that firearm for a minimum of 10 days. That is, there is a period of at least 10 days in which California prohibits every person from exercising the right to keep and bear a firearm.

There can be no question that actual possession of a firearm is a necessary prerequisite to exercising the right keep and bear arms. Further, there has been no showing that the Second Amendment, as historically understood, did not apply for a period of time between the purchase/attempted purchase of a firearm and possession of the firearm.

Although [Attorney General] Harris argues that the WPL is a minor burden on the Second Amendment, Plaintiffs are correct that this is a tacit acknowledgment that a protected Second Amendment right is burdened. Therefore, the Court concludes that the WPL burdens the Second Amendment right to keep and bear arms.

The next step is to analyze the WPL under either strict or intermediate scrutiny. As indicated above, Harris advances two rationales in defense of the WPL — it provides a “cooling off period” for those who may have an impulse to commit violence and it provides time for California to conduct a background check. It is unnecessary for the Court to determine at this time which scrutiny to apply because, even under the lesser “intermediate scrutiny,” summary judgment is not appropriate.

With respect to the rationale of providing time to perform a background check, Heller indicated that some laws or regulations presumptively do not offend the Second Amendment, including laws that prevent felons and mentally ill persons from possessing firearms. If a state presumptively

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Evolving Christian Attitudes Towards Personal and National Self-Defense

Issue number 5 of this year’s Connecticut Law Review is an excellent symposium on firearms law, policy, and culture. The lead article is from Nicholas Johnson, of Fordham: Firearms Policy and the Black Community: An Assessment of the Modern OrthodoxyJohnson (who is my co-author on the Second Amendment textbook Firearms Law and the Second Amendment) details the long and honorable history of Black Americans’ use of arms for lawful self-defense, especially against white racists. Johnson observes that in the late 1960s, Black political leadership abruptly shifted from the community’s traditional support for armed self-defense into being quite hostile to gun ownership.

The Johnson article is a short version of his forthcoming (Jan. 14, 2014) book Negroes and the Gun: The Black Tradition of Arms by Nicholas Johnson (Jan 14, 2014). I very highly recommend the book. It goes far beyond the Connecticut article. The subject of race control and gun control has been a subject of increasing scholarly attention ever since Robert J. Cottrol and Raymond T. Diamond’s 1991 Georgetown LJ article, The Second Amendment: Toward an Afro-Americanist Reconsideration. Having followed the subject carefully for the past two decades, I am amazed by how much original research that Johnson brought to the book, and by the rigorous analysis he provided for the most difficult questions.

In the Connecticut symposium, response essays are offered from leading “pro-gun” scholars (Cottrol & Diamond, Don Kates & Alice Marie Beard) and from leading “anti-gun” scholars (Michael DeLeeuw, David Kairys, Andrew McClurg [my co-author on another gun textbook], and William Merkel).

My own contribution to the symposium is an article titled Evolving Christian Attitudes Towards Personal and National Self-Defense. (SSRN link here; Conn. L. Rev. link here.) My article observes that the Black political leaderships’ sharp turn against self-defense [...]

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Knives and the Second Amendment

The Second Amendment guarantees the right to keep and bear “Arms”–not solely “firearms.” While firearms have always been the paradigmatic Second Amendment arm, there are many other types of arms which are protected by the Second Amendment. By far the most common of the other arms are knives.

Now at the printer is the first detailed scholarly analysis of Knives and the Second Amendment. 47 University of Michigan Journal of Law Reform, vol. 47, pages 167-215 (Fall 2013). The article is co-authored by Clayton Cramer, Joseph Olson, and me. We argue that:

  • Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.
  • There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.
  • Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives that, after being opened, have a safety lock to prevent inadvertent closure.

The article provides an explanation of various types of knives, of criminological evidence regarding knives, and of the 19th century panic and case law about Bowie Knives and Arkansas Toothpicks. We then apply the Second Amendment to modern knife laws. We cover the utility of knives for personal self-defense and for militia use, and the constitutional significance of technological changes in knives since 1791. Finally, the article considers some modern prosecutions, statutes, and cases from Washington, Oregon, Indiana, New York, and D.C. We conclude that even under the weakest relevant standard (intermediate [...]

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Attitudes Towards Handgun Bans

A very interesting graphic from Prof. Bryan Caplan (EconLog):

The lines indicate the responses to a Gallup survey, which asked “What about the possession of pistols and revolvers — do you think there should be a law which would forbid possession of this type of gun except by the police or other authorized person?” (or, since 1980, “Do you think there should or should not be a law that would ban the possession of handguns, except by the police or other authorized persons?”). The green line shows the “Yes” responses from 1959 to 2013, and the red line shows the “No” responses.

The change, of course, is striking, and hard to explain with any one answer. Increases in crime rates might be part of the reason for the change, but since the early 1990s crime rates have declined. America’s historical connection to the West and to the Revolutionary era is often cited to explain views about guns, but of course that history was as present in 1959 as now. Bryan offers some interesting further thoughts, and asks his readers what the reason for the change might be; there are over 30 responses there now, which are much worth reading (and adding to).

Thanks to Robert Dittmer for the pointer. [...]

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Has the Constitutional Right to Keep and Bear Arms Outlived Its Usefulness?

I’m on a train to New York from the Federalist Society conference in D.C., headed to do a debate on this subject organized by Intelligence2 Debates. The debaters will be Sandy Levinson and Alan Dershowitz against Dave Kopel and me, and a live video stream will be available starting 6:45 Eastern tonight at this site, or (in theory) just by clicking below:

For an extra Volokh Conspiracy connection, note that Intelligence2 U.S. was launched by Robert Rosenkranz, the father of our own Nick Rosenkranz. [...]

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Gonzaga Students Facing Expulsion for Legally Possessing Guns in Private University-Owned Apartments

An interesting story from the Gonzaga Bulletin:

Roommates Erik Fagan and Dan McIntosh, both seniors, may be expelled this week after they used McIntosh’s pistol to repel a late-night trespasser from the doorway of their 207 E. Sinto Ave. apartment.

Fagan answered a 10:15 p.m. knock on their front door Thursday, Oct. 24. A friend having just left their apartment, he assumed the friend had come back. Instead, John Michael Taylor, a felon who showed them his ankle bracelet tracker in an attempt to intimidate them, faced him. Taylor asked Fagan for money, and became agitated when Fagan turned him down.

When he sensed Taylor might enter the apartment, Fagan yelled for McIntosh, who brandished his pistol, for which he has a concealed weapons permit….

Fagan, 21, and McIntosh, 23, rent their two-bedroom off-campus apartment, No. 5, from owner Gonzaga University. Complications arose after the men called both the Spokane Police and CAMPO to report the trespasser, in doing so declaring the pistol to SPD Officer Adam Valdez. SPD quickly apprehended the suspect, who was arrested on outstanding felony warrants. Valdez congratulated the students for safely warding off a possibly dangerous menace.

But according to the Gonzaga Student Handbook, students may not possess weapons on campus or university-owned property. This clause triggered an early-morning return by CAMPO and a residence director, resulting in the seizure of two guns, including a shotgun owned by Fagan. This occurred at 2:30 a.m., more than four hours after the initial incident….

The hearing on the alleged violations of the Student Code of Conduct is scheduled Friday morning with the University Discipline Board.

Fagan and McIntosh said they didn’t know about GU’s weapons policy. They said they didn’t realize that rules pertaining to on-campus conduct applied to the Sinto Apartments….

Even if someone had

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Georgia Supreme Court Justices on the Second Amendment, Carrying Guns in Public, and Felons

Hertz v. Bennett (Ga. Sup. Ct. Nov. 4, 2013) rejects a Second Amendment objection to the denial of a concealed carry license. The petitioner, the court notes, had pleaded no contest to five felony counts — “three counts of aggravated assault with a deadly weapon, one count of shooting from a vehicle, and one count of possession of a short barrel weapon” — when he was 18, back in 1994. That suffices to disqualify him from a Georgia concealed carry license, notwithstanding the Second Amendment and the Georgia Constitution’s right to bear arms provision.

That’s not terribly noteworthy, since all courts that have considered the issue have upheld even total prohibitions on gun possession by people who had committed violent crimes. Hertz was not actually a convicted felon, because following his no contest plea the court had withheld adjudication, something done for first offenders in various jurisdictions. But Hertz had pled no contest to the felony charges, and the court said that this was sufficient to forfeit his right to carry guns.

But the concurrence of three of the seven Justices (Blackwell, joined by Hines and Nahmias) strikes me as more unusual and therefore interesting, both as to its view on the right to carry guns in public (a matter on which courts are split) and on the constitutional rights of felons with less serious criminal records:

I concur fully in the opinion of the Court, but I write separately to share a couple of observations about our consideration of the constitutional guarantees of the right to keep and bear arms. First, the opinion of the Court says that the right of law-abiding citizens to keep firearms in their homes is a principal concern of the constitutional guarantees, and that is true enough. See District of Columbia v.

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Steve Chapman on Chicago’s Seized Gun Destruction Policy


In the course of their duties, Chicago police come into possession of all sorts of contraband: jewelry, video games, bicycles, cars. They sell the stuff through online auctions that are open to the public. They also confiscate some 10,000 firearms each year, with an estimated value of $2 million. They sell them and put the $2 million through a shredder.

Just kidding. It would be insane to shred large stacks of perfectly good money. What they actually do is destroy the guns. That way, there’s no money to destroy.

As Chapman points out, there’s no reason at all to think that destroying the seized guns would do anything to help prevent crime. But I suppose it makes some people feel good. Thanks to InstaPundit for the pointer. [...]

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