Tag Archives | Second Amendment

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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The rise and fall of the Second Amendment “collective right”

My recent article for America’s 1st Freedom traces the rise and fall of the theory that the Second Amendment is not an individual right, but instead is a “collective right,” which, like “collective property” in a communist country, supposedly belongs to everyone collectively, but in fact belongs to no-one. The theory was created by a federal district judge in 1935, formally named by the New Jersey Supreme Court in 1968, and became popular among lower federal courts during the next quarter-century.

Historical and textual analysis made it increasingly clear that the theory was completely implausible, and it was unanimously rejected by the U.S. Supreme Court in the 2008 case District of Columbia v. Heller. In that case, all nine justices agreed that the Second Amendment right was individual, while they disagreed about its scope. [...]

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Stun gun prohibition violates Second Amendment

So rules a state judge in Bay City, Michigan. According to the ruling, the regulation of stun guns would be constitutional, but not their prohibition. Other than Michigan, the only states that prohibit stun guns are New Jersey and Rhode Island.

Eugene Volokh’s Stanford Law Review article, Nonlethal Self-Defense examines the Second Amendment issues involving stun guns, chemical sprays, and the like, concluding that they are protected by the Second Amendment. [...]

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McDonald v. Chicago and Gilbert & Sullivan: The hidden connection!

In March 1994, I was in the Georgetown Gilbert & Sullivan Society‘s production of Gilbert & Sullivan‘s operetta Patience.

You can find a list of the Society’s past shows here; I was also in the same show the next time they produced it, in April 2007. Also, you can find the libretto of the show here.

In the March 1994 production, I played the character of the Major, which is perhaps the smallest part among the male principals. But hey, at least it was a principal.

Who was in the show with me? In the male chorus, playing one of the Heavy Dragoons, was Alan Gura, who represented Heller in D.C. v. Heller, and who’s counsel of record in McDonald v. Chicago, as you can see from the front page of the brief.

Who else was in the show with me? Why, playing the character of the Duke was none other than David Sigale, also McDonald’s lawyer listed on the front page of the brief.

Who else was in the show with me? This isn’t strictly speaking related to the McDonald case, but the character I married in the show, one “Angela,” was played by Alan Gura’s law partner, Laura Possessky.

Have Gilbert & Sullivan otherwise influenced the McDonald case? Well, p. 7 of the brief (p. 25 of the PDF) says that “The Privileges or Immunities Clause was all but erased from the Constitution in The SlaughterHouse Cases.” And, on the next page, it says that “SlaughterHouse‘s illegitimacy has long been all-but-universally understood.”

All but!

Surely, this is an echo of the sextet in Patience (see p. 19 of the libretto, i.e. p. 22 of the PDF, here), which I sang together with one of [...]

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Petitioner’s Brief in McDonald v. City of Chicago (The Second Amendment Incorporation Case)

Today the Petitioners in McDonald v. City of Chicago, the case on whether the Second Amendment applies to the states, filed their merits brief.   You can read it here.  It’s a truly remarkable brief.  It devotes 55 pages to arguing that the Supreme Court should overturn The Slaughterhouse Cases (1873) and embark on a new era of a newly rejuvenated Privileges or Immunities Clause.  It then gives a mere seven pages, at the very end of the brief, to applying existing doctrine and arguing that the Second Amendment is incorporated and applies to the states under the Due Process clause.   It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution. [...]

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