Archive | Right to carry

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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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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The Strange Career of Mississippi’s Bans on Gun Carrying

A few weeks ago, the Mississippi Supreme Court took another step towards dismantling the state’s legacy of Jim Crow gun control laws. If you had read the Mississippi statutes from that era, they would have seemed quite ordinary in an American context:

1. There was no laws against the open carrying of firearms in most public places.

2. Concealed carry required a special permit.

But in practice, Mississippi forbade all gun carrying, at least for persons whom local authorities wished to prevent from carrying guns. The prohibition was accomplished through two steps: First, concealed carry permits were only granted to persons who were special favorites of whoever was issuing the permits. Nominally, citizens could still open carry, without need for a permit. But the Mississippi courts defined “concealed” carry so broadly as to encompass all normal forms of open carry. See, e.g.L.M., Jr. v. State, 600 So.2d 967 (Miss. 1992); Martin v. State, 93 Miss. 764, 47 So. 426 (1908). As Chief Justice Roy Noble Lee explained in a concurring opinion in the L.M., Jr. case:

One of the first cases I undertook as a young lawyer was the defense of a man charged with carrying a concealed weapon. I thought his defense would be simple and easy until I learned what the statute meant. To my amazement, I discovered that carrying a concealed weapon in whole or in part even meant that a revolver carried in a holster on a man’s hip was a partially concealed weapon, riding a horse with a saddle holster and revolver under a person’s leg violated the statute; and that covering a weapon with feet, hands, or clothing meant that the weapon was concealed under the interpretation of the statute. Conceivably, carrying a revolver suspended from the neck by

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Illinois Supreme Court: Second Amendment Protects Carrying Outside the Home

From today’s unanimous decision in People v. Aguilar (Ill. Sept. 12, 2013):

As the Seventh Circuit correctly noted, neither Heller nor McDonald expressly limits the second amendment’s protections to the home. On the contrary, both decisions contain language strongly suggesting if not outright confirming that the second amendment right to keep and bear arms extends beyond the home. Moreover, if Heller means what it says, and “individual self-defense” is indeed “the central component” of the second amendment right to keep and bear arms, then it would make little sense to restrict that right to the home, as “[c]onfrontations are not limited to the home.” Indeed, Heller itself recognizes as much when it states that “the right to have arms *** was by the time of the founding understood to be an individual right protecting against both public and private violence.”

I think the result is correct, because Heller‘s reasoning does indeed apply to carrying for self-defense in most public places, and not just in the home. Indeed, Heller and McDonald v. City of Chicago had no occasion to squarely confront this question, because they dealt with total handgun bans, including on home possession. Heller does speak of “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,” and stresses that the D.C. handgun ban extends “to the home, where the need for defense of self, family, and property is most acute.” Heller, 554 U.S. at 635, 629. And Heller also holds that bans on concealed carry in public are constitutional, because of the long tradition (dating back to the early 1800s) of such prohibitions.

But Heller did hold that “bear arms” includes carrying arms, and the very reference to bans on concealed carry suggests that some sort of carrying (e.g., open carrying) [...]

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Second Amendment Secures Some Right to Carry Loaded Firearms in Public Places

So states State v. Christian (Ore. Aug. 15, 2013):

[W]e conclude in the first instance that the ordinance [limited carrying] does, to some extent, burden protected conduct falling within the scope of the Second Amendment’s guarantee. [Footnote: … Although Heller did not define the scope of the right to self-defense outside the home, we read the opinion as recognizing a right to self-defense outside the home to a degree yet to be determined by the Court….]

But the court concluded that the ordinance at issue doesn’t restrict the right too much, partly because Oregon is a shall-issue state and people remain free to carry if they get a concealed carry license. (The court also rejected the lower court’s odd interpretation of the Portland ordinance, which I noted last year.) I think the court was right to interpret Heller as securing some right to carry outside the home, though recent lower court decisions have mostly (though not entirely) rejected such a right. [...]

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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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“A Good Musket” and Bearing Arms

I’ve been discussing whether the right to bear arms is infringed by laws limiting people to bearing only one “arm”, as a proposal by Illinois Gov. Quinn seeks to do.

Perhaps the best evidence for a singular reading of “arms” is the Second Militia Act of 1792, section 1, which provides, in part, that a militia member must:

provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock./

(emphasis added).

These requirements, which track Colonial milita rules, do not purport to define or even regulate the right to bear “arms;” rather, it sets a minimum for the arms militiamen mush furnish at their own expense. Its about duties, not rights. Still, the relevant section of the Act concludes, after many further details, that “every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements required as aforesaid” shall have certain immunities from suit.

The reference to “arms” raises the possibility that the term could apply to a single firearm. But event this inference is not clear. The militiamen had to have bayonets (their officers, swords), which might be part of “arms” rather than “accoutrements.” To my untrained eye, a late 18th-century bayonet would be an accoutrement, because it looks difficult to wield independently of the musket, unlike modern bayonets, which are attachable knives. However, my first, impressionistic take on contemporary usage is that bayonets were called “weapons,” suggesting they were part of arms. For example, “Attention was paid to inculcate the use of the bayonet, and a total reliance on that weapon.” Another officer recommended that “only by vigorous and persevering charges with that weapon that [...]

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Is the Right to Bear Arms Plural?

Tomorrow, Illinois’ concealed carry laws will become ineffective, having been held unconstitutional by the Seventh Circuit several months ago. The Court kept the unconstitutional law on life support for a few months to give the legislature time to craft a replacement measure. Springfield responded, but now that bill has been vetoed by Governor Quinn.

If the legislature does not override or accept the Governor’s veto by tomorrow, Illinois will go from being one of the most restrictive states for gun regulation to one of the most open.

The Governor issued an “amendatory veto” – declaring what additions or changes he would make to the legislation. Several of these raise serious Second Amendment problem (the legislature’s bill was not free of these, but Quinn’s is much worse). Here I’ll examine just one, which is in tension with the constitutional text itself: limiting people to carrying only one gun.

Arms is a plural term, and the presumption should thus be that the right to bear them extends to more than one firearm. To be sure, “arms” is one of those terms where the plural can refer to the singular. But it is not one of those “sheep” words where there is no singular; arm, firearm, weapon or gun would all clearly indicate the singular, but those words were not used.

Johnson’s Dictionary, notes that grammatically arms lacks a singular form even when used singularly, but defines it as “weapons” rather than weapon, suggesting the dominance of the plural use.

The straight textual argument may be particularly relevant here as the Seventh Circuit struck down the Illinois gun ban using a straight reading of “bear arms” – bear means to carry, and thus the right must extend to carrying in public. Given that the Court held “bear” must be taken seriously, [...]

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How to stop school shootings right now: Abolish pretend “gun-free zones”

Real gun-free zones (enforced by metal detectors backed up by armed security guards) are fine for certain buildings. Pretend gun-free zones (bans on gun carrying by licensed people, but no procedures to keep out criminal gun carriers, and exacerbated by the absence of armed security) are magnets for mass killers. There is a reason why mass killers frequently attack schools, movie theaters, or shopping malls which are pretend gun-free zones.

My article Pretend “Gun-free” School Zones: A Deadly Legal Fiction, 42 Connecticut Law Review 515 (2009), examines the policy arguments. The article details some (but far from all) of the instances in which a lawfully-armed person at the scene has thwarted attempted mass murders. The reason that everyone knows about Sandy Hook Elementary, and few people know about Pearl High School is that the latter had a Vice-Principal with a gun.

NRA Executive Vice President Wayne LaPierre’s call for armed guards in schools is a good idea. Especially in light of the copycat effect which results from heavy media coverage of notorious crimes, the policy ought to be implemented right away.

Opponents of LaPierre’s proposal say, wrongly, that armed security at Columbine did no good. At Columbine High School, the attack coincided with the “school resource officer” (a sheriff’s deputy) being off-campus.  The officer returned during the start of the attacks, and fired some long-distance shots at the killers, who were on the school porch. Those shots drove the killers into the school building, and saved the lives of several students who had been wounded. Atrociously, the officer failed to pursue the killers into the building. Dozens of additional officers arrived within minutes, but none of them entered the building either, even though an open 911 line indicated that killings were taking place in the library, while police [...]

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Goldberg & Kopel on Guns and Gun Control

The December 2012 issue of The Atlantic features a lengthy article by Jeffrey Goldberg, “The Case for More Guns (And More Gun Control).” Though written before the Newton massacre, the article is quite timely and relevant — and provides much food for thought.

The VC’s own David Kopel was among those Goldberg interviewed for the piece. Dave also had an op-ed in the WSJ this past week, on “Guns, Mental Illness and Newtown.” It’s also worth a read.

A third article worth considering is James Alan Fox’s “Top Ten Myths about Mass Shootings.” Fox is a criminologist and his article is seems quite pragmatic and sober (albeit sobering as well). [...]

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Moore v. Madigan, key points

Judge Posner’s opinion for a 2-1 panel of the 7th Circuit. Illinois is the only state which forbids gun carrying in public as a matter of law. There is no provision for the issuance of licenses for concealed carry, or for open carry. Both are banned. There are some exceptions for particular activities (e.g., while hunting), and for persons with a special occupational status (e.g., licensed security guard, some government officials).

According to the Supreme Court, 1791 (year of ratification) is the crucial year for the Second Amendment’s original meaning. The usual suspects (Saul Cornell, etc.) claim that there was no generally recognized right to carry in 1791. But the “Supreme Court rejected the argument. The appellees ask us to repudiate the Court’s historical analysis. That we can’t do. Nor can we ignore the implication of the analysis that the constitutional right of armed self defense is broader than the right to have a gun in one’s home. . . .A right to bear arms thus implies a right to carry a loaded gun outside the home.”

“And one doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.” Besides English precedents about restrictions on carrying in certain places or in certain ways were not general prohibitions. Discussion of frontier conditions, and observation that today,

Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to

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Louisiana amendment to strengthen right to arms, on November ballot

In state elections, the most important vote this November will be in Louisiana. A referendum there would significantly strengthen protection of the right to keep and bear arms in the state, and would set a very significant national precedent.

Before the Civil War, the Louisiana Constitution did not mention a right to arms. The Louisiana Supreme Courts, however, viewed the federal Second Amendment as directly applicable to state government. So in State v. Chandler (1850), the court held that the Second Amendment protected a general right to carry arms, but that a legislature could ban concealed carry.

A new state constitution, adopted in 1879, provided: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed.” La. Const., art. 3. The first sentence is, of course, nearly verbatim from the Second Amendment.

A century later, firearms prohibitionists had convinced some courts to reinterpret the Second Amendment so as to make it practical nullity. Supposedly, the Second Amendment right was not an individual right, but instead a “state’s right” or “collective right”–which meant that individual gun ownership could be entirely outlawed. Because the Louisiana Constitution’s language so closely paralleled the Second Amendment, there was a danger that a Louisiana court could interpret the state constitutional language to protect nothing at all. Indeed, some courts in other states had already done so, regarding state law language that copied the Second Amendment.

So in 1974, the Louisiana constitutional right was strengthened, with new language: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying [...]

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Amicus brief in Woollard v. Gallagher, Maryland right to bear arms case

Earlier today, I filed an amicus brief in Woollard v. Gallagher, currently scheduled for an expedited hearing around October 23 before the Fourth Circuit. The case is an appeal from the decision of the federal district court that Maryland’s granting of handgun carry permits only to persons who can prove a specific, imminent threat is unconstitutional. The winning lawyer in the case below was Alan Gura, representing Raymond Woollard and the Second Amendment Foundation.

The brief is filed on behalf of the  two major professional associations of police firearms trainers: the International Law Enforcement Educators & Trainers Association (ILEETA); and the International Association of Law Enforcement Firearms Instructors, Inc. (IALEFI). Also joining the brief are Professor Clayton Cramer, and the Independence Institute.

Here’s the Summary of Argument:

Strong protection of the constitutional right to the licensed carry of handguns for lawful self-defense does not interfere with police efficacy in cracking down on illegal gun carrying.
Data from law enforcement agencies shows that persons with carry permits are far more law-abiding than the general population. Assertions that licensed carry harms public safety are based on false data from a gun prohibition group.
The case can be resolved without need for a standard of review, because the near-complete suppression of an enumerated constitutional right can never be constitutional.
Maryland law, like the laws of states which generally comply with the Second Amendment, leaves ample discretion for denial of permits to unsuitable applicants, and allows denials for many reasons other than felony conviction.
Upholding the decision of the district court would be consistent with precedent in other states protecting the constitutional right to bear arms.

In addition to the Fourth Circuit’s Woollard case, there are major cases on the right to bear arms currently pending before the Seventh Circuit and the Ninth Circuit. [...]

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What Judge Reinhardt missed

Eugene Volokh’s post below discusses a dissent by the Ninth Circuit’s Judge Reinhardt in a capital sentencing case. Judge Reinhardt accurately states that carrying a gun is a Second Amendment right, to make the broader point that carrying a gun is not, in itself, illegitimate behavior. Judge Reinhardt could have strengthened his opinion by citing two cases in which the U.S. Supreme Court reversed capital convictions because the district court had improperly treated gun carrying as evidence of malign, homicidal intent.

The first of these is Gourko v. United States, 153 U.S. 183 (1894). John Gourko was 19 year old Polish immigrant.  He lived with  his brother Peter in a mining camp in the Choctaw Nation, in what was then the federal Indian Territory of Oklahoma.  Peter Carbo, another Polish immigrant, aged 45, has dispute with them over certain loads of coal, which he claimed the Gourko brothers had filched. According to a witness, Carbo threatened “to shoot John like a dog.” Carbo was easily capable of violence; he weighed 200 pounds, was very strong, and was considered dangerous. John Gourko, weighing 130 pounds, was considered delicate “and was deemed a quiet peaceable boy.”

One holiday, Carbo confronted John Gourko near a post office, shaking a fist in his face, and screaming at him. Witnesses feared the Carbo would kill John on the spot. About half an hour later, there was a confrontation between Carbo and John Gourko in a billiard hall. They argued, and then went outside. Gourko fired his pistol once over Carbo’s head, then twice to the body, killing him.

The Supreme Court’s opinion was written by Justice John Marshall Harlan. Justice Harlan noted that Gourko’s act might have been lawful self-defense, but that was not the precise issue as the case had come to the [...]

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Colorado Consensus on Gun Laws

In an article today for National Review Online, I detail how “Broadly supported post-Columbine reforms balance gun rights and gun control”:

After the Columbine High School murders, Colorado enacted eight specific gun-law reforms. Three of these reforms are examples of what people usually call “gun control,” and five of them are in the “gun rights” category. But to many Coloradoans, all eight of the measures are cohesive and consistent. They are all based on the same principles: Guns in the wrong hands are very dangerous, and guns in the right hands protect public safety. Colorado strengthened its laws to make it harder for the wrong people to acquire guns and simultaneously strengthened laws to remove obstacles to the use and carrying of firearms by law-abiding citizens. As a whole, the laws embody a compromise that enjoys broad public support; they settled a gun-policy debate that had raged in Colorado for 15 years. The Colorado consensus has already saved lives.

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