Archive | Seventh Circuit

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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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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McDonald amicus briefs: Academics, Congress redux, and California District Attorneys

Thirty two amicus briefs in McDonald v. Chicago have been filed so far, and they are all available at the Chicago Gun Case website, run by the Second Amendment Foundation (which is one of the parties in McDonald). My brief is also available on SSRN. The next brief (Chicago’s) is not due until Dec. 30, so we have all of Thanksgiving, Advent, and the first 5/12 of the Twelve Days of Christmas to examine the amicus briefs so far.

Today, let’s take a look at the brief of Philosophy and Criminology professors. It’s co-written by Don Kates (one of the founders of modern scholarship of the Second Amendment) and Marc Ayers. The pair had teamed up in Heller to write an excellent brief arguing that DC’s handgun been had been a failure, and probably counter-productive, in terms of public safety.

The new Kates-Ayers brief begins with a survey of the 17th-18th century philosophical view, with which the American Founders agreed, that self-defense was among the most fundamental of all rights, that it was also a duty, and that the right necessarily implied the right to use arms in self-defense. This Part of the brief rebuts the 7th Circuit’s assertion in McDonald that self-defense is merely a “gloss” on the criminal law, and could be abolished by statute.

Next, the brief provides a litany of evidence showing that most murderers are not otherwise law-abiding citizens who impulsively kill because a gun happens to be available. To the contrary, murders overwhelmingly tend to have prior records of serious crime and mental illness. This particular topic has been a long-running theme of Kates’ three decades of scholarship on firearms policy.

A long section titled “Research makes gun ban advocates recant” provides a history of the social science debate on gun [...]

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