Archive | Guns

Government as Proprietor, and the Second Amendment

United States v. Dorosan (unpublished), decided Wednesday by the Fifth Circuit, upholds a ban on bringing handguns onto U.S. Postal Service property. Here’s the key legal discussion:

First, the Postal Service owned the parking lot where Dorosan’s handgun was found, and its restrictions on guns stemmed from its constitutional authority as the property owner. See U.S. Const. art. IV, § 3 cl. 2; United States v. Gliatta, 580 F.2d 156, 160 (5th Cir. 1978). This is not the unconstitutional exercise of police power that was the source of the ban addressed in Heller. See 128 S. Ct. at 2787-88 (noting the laws in question “generally prohibit[ed] the possession of handguns” anywhere in the city).

Moreover, the Postal Service used the parking lot for loading mail and staging its mail trucks. Given this usage of the parking lot by the Postal Service as a place of regular government business, it falls under the “sensitive places” exception recognized by Heller. See Heller, 128 S. Ct. at 2816-17 (holding that “nothing in our opinion should be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings ….”).

Finally, the Postal Service was not obligated by federal law to provide parking for its employees, nor did the Postal Service require Dorosan to park in the lot for work. If Dorosan wanted to carry a gun in his car but abide by the ban, he ostensibly could have secured alternative parking arrangements off site. Thus, Dorosan fails to demonstrate that § 232.1(l) has placed any significant burden on his ability to exercise his claimed Second Amendment right.

The reasoning, I’m afraid, is pretty sketchy; it may well be, for instance, that the Second Amendment rule applicable to the government acting [...]

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Was Heller comparable to Roe v. Wade?

 So argued the eminent Fourth Circuit Judge J. Harvie Wilkinson, III, in Of Guns, Abortions, and the Unraveling Rule of Law, recently published in the Virginia Law Review. In Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III, Nelson Lund and I disagree, arguing that none of Judge Wilkinson’s comparisons to Roe are accurate, and that Heller is no more of an “activist” decision than any other decision protecting an enumerated right. The final version of our article, forthcoming in the University of Virignia Journal of Law and Politics, is now available on SSRN. [...]

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First Circuit upholds federal ban on juvenile handgun possession

The decision is here, and includes extensive analysis of 19th and early 20th century state laws (and court decisions upholding them under state constitution RKBA provisions) against juvenile handgun possession, or sale of handguns to juveniles. The decision also rejects a challenge that the federal ban on simple possession in one’s own home exceeds congressional authority under the power to regulate interstate commerce. In Taking Federalism Seriously: Lopez and the Partial Birth Abortion Ban Act, 30 Connecticut Law Review 59 (1997), Glenn H. Reynolds and I argued that the interstate commerce power should not be used to regulate intrastate activity, especially activity involving controversial social issues like firearms or abortion. In a 1999 Issue Paper for the Independence Institute, I wrote a brief section (Part VII) which presents some policy arguments against the federal aw. As you’ll see by reading the First Circuit case, there are good reason why the juvenile delinquent should not have owned a gun. But I that there is a less restrictive alternative than the federal approach. [...]

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Want to do it the easy way, or the hard way?

In a new podcast from, I explain McDonald v. Chicago to Independence Institute President Jon Caldara. This is an 11 minute audio, which presumes that the listener is entirely new to the whole idea of incorporation. If you’ve got much more time on your hands, here’s an 86 minute video of my presentation on essentially the same subject in early September to the Triple Nine Society. That presentation too presumes no prior knowledge of the subject, but it spends a long time taking setting out the background, from Barron v. Baltimore, to Reconstruction, to substantive due process, to the present. Sophisticated watchers will note that I mistakenly said “Privileges and Immunities” sometimes when I should have said “Privileges or Immunities.” And I usually referred to the impending Supreme Court case as NRA v. Chicago, expecting that that Court would grant cert. in both NRA v. Chicago and McDonald v. Chicago, and the that popular name for the consolidated cases would probably be the former. I was wrong, as the Court granted cert. in McDonald only, and has made no decision in NRA, perhaps keeping that case in reserve in case some unexpected problem developed with McDonald. The very beginning of the video is cut, so it opens a minute or two into the presentation. [...]

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“Guns Did Not Protect Those Who Possessed Them from Being Shot in an Assault.”

So reports a press release posted at, which also says,

The study estimated that people with a gun were 4.5 times more likely to be shot in an assault than those not possessing a gun.

“This study helps resolve the long-standing debate about whether guns are protective or perilous,” notes study author Charles C. Branas, PhD, Associate Professor of Epidemiology. “Will possessing a firearm always safeguard against harm or will it promote a false sense of security?” …

Penn researchers investigated the link between being shot in an assault and a person’s possession of a gun at the time of the shooting. As identified by police and medical examiners, they randomly selected 677 cases of Philadelphia residents who were shot in an assault from 2003 to 2006. Six percent of these cases were in possession of a gun (such as in a holster, pocket, waistband, or vehicle) when they were shot.

These shooting cases were matched to Philadelphia residents who acted as the study’s controls. To identify the controls, trained phone canvassers called random Philadelphians soon after a reported shooting and asked about their possession of a gun at the time of the shooting. These random Philadelphians had not been shot and had nothing to do with the shooting. This is the same approach that epidemiologists have historically used to establish links between such things as smoking and lung cancer or drinking and car crashes.

This was promptly echoed in the Philadelphia Daily News.

Conspicuously missing from the press release and the news story were two critical limitations that were admitted in the original study. These qualifiers mean that the press release headline, as well as all the other statements and implications of causation, were quite mistaken. Perhaps defensive possession and carrying of guns helps protect [...]

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Police May Not Even Temporarily Detain a Person Simply Because He’s Openly Carrying a Handgun,

if such open carrying in that place is generally not a crime. So holds St. John v. McColley (D.N.M. Sept. 8, 2009), which grants summary judgment to the seized person on his Fourth Amendment claim:

Defendants lacked a justifiable suspicion that Mr. St. John had committed a crime, was committing a crime or was about to commit a crime. Indeed, Officer McColley conceded that he did not observe Mr. St. John committing any crimes and that he arrived at the theater with the suspicion that Mr. St. John was merely “showing a gun”, which is not illegal in the State of New Mexico. Nor was there any reason to believe that a crime was afoot. When they found him, Mr. St. John was peacefully sitting through the previews for his second movie of the day. Officers had no reason to believe that Mr. St. John had been, was, or would be involved in any criminal activity whatsoever. [Footnote: Defendants contend that Mr. St. John was about to commit a crime because, had he refused to comply with their request that he leave the premises, he would have been trespassing. If accepted, this argument would significantly erode Fourth Amendment protections. Because the Court finds no jurisprudential support for Defendants’ novel contention, no further discussion of it is necessary.] …

Moreover, Mr. St. John’s lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention. For example, in United States v. Ubiles, 224 F.3d 213 (3rd Cir. 2000), the Third Circuit found that an individual’s lawful possession of a firearm in a crowded place did not justify a search or seizure. In Ubiles, officers seized Ubiles during a crowded celebration after they received a tip that

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Self-Defense, Shmelf-Defense:

In working on my article on the regulation of stun guns and irritant sprays, I came across this editorial from the Annapolis Capital, June 27, 1985:

Council Should Ban Stun Guns

Guns often fall into the wrong hands or are misused. Why make it possible for people to misuse a new technology weapon, the electric stun gun?

County Council members Carole B. Baker and David G. Boschert are proposing that the sale, possession or use of stun guns be prohibited for private citizens in Anne Arundel. We think the council should go one step further and ban the use of stun guns by on-duty police officers as well. That position is endorsed by Annapolis Police Chief John C. Schmitt. State, county and city law enforcement officers currently are not permitted to carry stun guns on duty, and we don’t think they need the weapons to perform their services or defend themselves.

A stun gun is a pocket-sized, battery-charged device that temporarily incapacitates a person with a 50,000-volt electric charge when it is pressed against the body. Though on the market only a few months, there are already reports of the device being used for purposes other than legitimate self-defense.

In February, a Maryland state trooper who was carrying a stun gun without authorization was reprimanded after he zapped an unruly (but handcuffed) woman four or five times with the device. This spring, five New York City police officers were accused of using a stun gun to torture a prisoner.

We feel that police don’t need this weapon. They already have sufficient equipment to subdue people when necessary.

We realize that in a violence-prone society, citizens need to protect themselves. We also must remember that weapons meant to protect us often are used against us. Why make crime easier

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United States v. Cruikshank, 92 U.S. 542 (Year?)

The Supreme Court will consider whether the Second Amendment should apply to the states, and thus whether to overrule United States v. Cruikshank, 92 U.S. 542 (1876). Or is it United States v. Cruikshank, 92 U.S. 542 (1875)? Both citations are commonly used; HeinOnline reports that the 1875 date is given in roughly 60% of law review citations, and the 1876 in roughly 40%. Which is it?

Well, if you want to give the date of decision — which is the modern Bluebook requirement — you should say 1876, since the case was decided Mar. 27, 1876. The reason that many people say 1875 is that, to quote the Supreme Court’s Web page on the subject,

The dates of decisions do not appear beneath the case name in the first 107 volumes of the U.S. Reports. Beginning in 1854 (58 U.S.) the Lawyers’ Edition of the Supreme Court Reports includes the date, though there are some errors and omissions….

Some dates do appear in the U.S. Reports, either in the margin or in the body of the opinion. One edition of a particular volume may have dates while another edition does not. These dates sometimes differ from the dates found in the [Engrossed Minutes of the Supreme Court].

Fortunately the page I just linked to contains the official publication dates, so if you want to include the year of decision, you may do so. And for Cruikshank, the year is 1876.

(Note that the characterization of the issue in McDonald as being whether to overrule Cruikshank is something of an oversimplification, but let’s go with it for now.) [...]

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Does CHL ban in churches violate the First Amendment?

An opinion released today by the Arkansas Attorney General says “no.” Like most states, Arkansas allows adults to obtain a permit to carry a concealed handgun for lawful purposes, after passing a background check and  safety class.  Like a few states, Arkansas prohibits licensed carry in “Any church or other place of worship.”

In short, the AG opinion says that there is no Free Exercise violation because the statute does not (at least facially) hinder the exercise of religion. Further, the statute is one of general applicability, and does not single out religion for different treatment, because the Arkansas conceald handgun license (CHL) statute also bans CHL in some other locations. The opinon suggests that what these disparate places have in common is that they are likely to be crowded.

There is no Establishment Clause violation because the CHL in churches ban does not appear, facially, to favor one sect or denomination over another. (The AG opinion and this post both use “churches” to include synagogues, mosques, and all other houses of worship of various religions.)

The AG opinion strongly emphasizes that the issue is one of first impression, and that a full legal resolution of the issue might well require fact-finding.  The purpose of an Attorney General opinion is only facial review, and not the kind of fact-finding that a court might engage in.

Given the self-declared limited scope of the AG opinion, its tentative legal conclusions are plausible. However, I think that if we broaden our view a little bit–in either a court of law, or the court of public opinion–there do appear to be some potential violations of the Establishment and Free Exercise clauses.

Two preliminary caveats: First, neither the AG opinion nor this post address whether the church ban violates the right to arms clause of [...]

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