Eugene Volokh's Blog, page 2660
December 4, 2011
Someone Explain to Me Who is Blowing Up Stuff in Iran
This is a real question, so please point me in the direction of serious national security outlets and reporting. Is it the US? Israel? Combined ops? Someone else? Is the US engaged in "real" covert ops, rather than simply obviously on-going but "unacknowledged" drone strikes? (I'd like to know the state of current respectable and serious reporting and commentary, not rants or conspiracy theories, thanks.)
Question Drug War, Lose Law Enforcement Job
The NYT profiles two law enforcement officers — a border patrol agent and a probation officer in Arizona — who lost their jobs because they questioned the wisdom of drug prohibition. One signed a letter sponsored by LEAP (Law Enforcement Against Prohibition), the other just expressed doubts to co-workers about keeping marijuana illegal. Both are now filing suit challenging their dismissals.
December 3, 2011
Federalist Society 2012 Student Symposium
The Federalist Society's 2012 Student Symposium will be held at Stanford Law School on March 2–3, and you can see the schedule of events and register here. This year's topic is "Bureaucracy Unbound: Can Limited Government and the Administrative State Co-Exist?"
Uncertainty and Economic Growth
Are economic and policy uncertainty discouraging businesses — and small businesses in particular — from hiring? Is such uncertainty a factor discouraging economic recovery? A new analysis by Mark Schweitzer of the Federal Reserve Bank of Cleveland and Scott Shane of CWRU's Weatherhead School of Management suggests some pundits and policymakers have been too quick to dismiss this possibility. Here's how their analysis concludes:
We find statistically significant negative effects of policy uncertainty on small business owners' plans to hire and make capital expenditures over the 1986 to 2011 period. We also find a large effect of the economic downturn on small business plans, but the two effects do appear to be independent. The negative effects of policy uncertainty show up even when we weight the components of policy uncertainty in several different ways. The results also stand up when consumer confidence is controlled for, suggesting that the effects are distinct from consumer sentiment.
While this statistical analysis is informative about the relationship between policy uncertainty and small business expansion plans, we cannot say that "policy uncertainty" causes small business hiring and capital expenditure plans to decline. That is because a purely statistical model cannot identify fundamental causes. But whatever the fundamental cause, our analysis indicates that adding information about policy uncertainty improves our ability to explain the survey responses provided by the NFIB's survey respondents.
In that sense, we can say that the correlations between the two are strong enough to reject the argument that policy uncertainty is irrelevant for currently weak small business expansion plans. In our view, policymakers should take seriously the widespread anecdotal reports that policy uncertainty is adversely affecting small business owners' expansion plans.
Whelan v. Calabresi & Rickert on Originalism and Sex Discrimination
Last week, I noted the important new article by Stephen Calabresi and Julia Rickert making an originalist case for the unconstitutionality of sex discrimination. In short, they argue that the 14th Amendment is best understood as prohibiting caste legislation, not just racial discrimination, and that it must be read in light of subsequent amendments, the 19th Amendment in particular.
Ed Whelan has responded to the Calabresi-Rickert article at length at NRO's Bench Memos. To put if briefly, he is not convinced. His response consists of five parts: 1, 2, 3, 4, and 5.
December 2, 2011
George Will on Fisher v. Texas
George Will recently published an interesting column on Fisher v. Texas, an important affirmative action case that the Supreme Court is in the process of deciding whether to take:
The Supreme Court faces a discomfiting decision. If it chooses, as it should, to hear a case concerning racial preferences in admissions at the University of Texas, the court will confront evidence of its complicity in harming the supposed beneficiaries of preferences the court has enabled and encouraged.
In the 1978 Bakke case concerning preferences in a medical school's admissions, Justice Lewis Powell, the swing vote on a fractured court, wrote that institutions of higher education have a First Amendment right — academic freedom — to use race as one "plus" factor when shaping student bodies to achieve viewpoint diversity. Thus began the "educational benefits" exception to the Constitution's guarantee of equal protection of the laws.
But benefits to whom? For 33 years, the court has been entangled in a thicket of preferences that are not remedial and hence not temporary. Preferences as recompense for past discrimination must eventually become implausible, but the diversity rationale for preferences never expires.
Liberals would never stoop to stereotyping, but they say minorities necessarily make distinctive — stereotypical? — contributions to viewpoint diversity, conferring benefits on campus culture forever....
But what if many of the minorities used in this process are injured by it? Abundant research says they are, as two amicus curiae briefs demonstrate in urging the court to take the Texas case.
The details of the Texas policies are less important than what social science says about the likely consequences of such policies. A brief submitted by UCLA law professor Richard Sander and legal analyst Stuart Taylor argues that voluminous research refutes the legal premise for such racial classifications: They benefit relatively powerless minorities.
"Academic mismatch" causes many students who are admitted under a substantial preference based on race, but who possess weaker academic skills, to fall behind....
A second brief, submitted by three members of the U.S. Commission on Civil Rights (Gail Heriot, Peter Kirsanow and Todd Gaziano), argues that racial preferences in law school admissions mean fewer black lawyers than there would be without preferences that bring law students into elite academic settings where their credentials put them in the bottom of their classes. A similar dynamic is reducing the number of minority scientists and engineers than there would be under race-neutral admissions policies.
There are fewer minorities entering high-prestige careers than there would be if preferences were not placing many talented minority students in inappropriate, and discouraging, academic situations: "Many would be honor students elsewhere. But they are subtly being made to feel as if they are less talented than they really are." This is particularly so regarding science and engineering....
In six devastating words, the Heriot-Kirsanow-Gaziano brief distills the case against the "diversity" rationale for racial preferences: "Minority students are not public utilities."
The possibility that many minority students are actually harmed by "diversity"-based affirmative action is a further point of tension between the diversity rationale for racial preferences and the compensatory justice rationale, a subject I have emphasized in many previous posts (e.g. here, here, here, and here). I previously blogged about Fisher v. Texas in this post. Co-blogger David Bernstein commented here. If the goal of racial preferences is promoting "diversity," then it does not matter much whether minority students are potentially harmed by them. If, on the other hand, the goal is compensating groups victimized by major historic injustices, it matters a great deal.
NOTE: As I have noted in my previous post on Fisher, I clerked for Fifth Circuit Judge Jerry E. Smith, author of Hopwood v. Texas, the 1996 decision striking down an affirmative action program at the University of Texas Law School that Grutter v. Bollinger and Fisher have superseded. Judge Smith wrote Hopwood several years before I clerked for him.
In addition, my wife is a special assistant/counsel for Gail Heriot, one of the coauthors of the brief by the three members of the US Commission on Civil Rights, which Will references. I should emphasize, however, that I have espoused the same views on affirmative action as I do today since long before she took that job, and indeed since before we met, as my earliest posts on the subject show. For about a decade now, I have believed that government-sponsored racial preferences might, at least in principle, be justified for purposes of compensatory justice, but not for diversity purposes. I am, however, pessimistic about the ability of government to institute compensatory justice preferences that are simultaneously equitable and effective in accomplishing their objectives.
UPDATE: The Sander-Taylor amicus brief is available here, and the brief of the three USCCR commissioners here.
"Arresting [Koran-Burning Pastor Terry] Jones Would Have Been an Option Had He Come on Campus"
From today's L.A. Times:
Campus police said they asked the Rev. Terry Jones not to come on campus after receiving information about suspicious activity associated with the visit that raised safety concerns. Several areas on campus, including Aldrich Hall where the university's administration is housed, were closed.
Jones, who threatened to burn the Koran on the anniversary of of the September 11 terrorist attacks and eventually did so in March, had applied for a permit to speak at an area near the campus flagpoles but was denied permission because another organization had already applied for the same time slot....
School officials said that arresting Jones would have been an option had he come on campus.
It's hard to be sure, based on the story, exactly what happened. If Jones had been denied a permit on the content-neutral grounds that the spot was already taken, the University would be able to insist that Jones not show up. (University campuses are generally treated as limited public fora from which the university may generally exclude outsiders; and if the university allows outsiders to speak, it may impose content-neutral rules limiting their speech. See, e.g., Bloedorn v. Grube (11th Cir. 2011).) And beyond this, if the police department had simply warned Jones about the danger, and asked him to stay away while making it clear that this was just advice that he could ignore, there wouldn't be a First Amendment problem.
On the other hand, if the police generally demanded that Jones stay away, not just on this occasion when his permit was denied for space conflict reasons but also even in the future (when no such conflict would likely exist) that would be much more troubling. If anyone has further information, I'd love to hear it.
Things To Do While Working on a Brief
I'm working on an amicus brief in the Supreme Court's Stolen Valor Act case (United States v. Alvarez), and a couple of days ago I had to fix the fonts for the fancy "In the Supreme Court of the United States" header. I went to the Word font selection box, and got a bit distracted by all the options. Here are some of them (though, I'm sorry to say, not including the one I'll be using). I think the last of them would be especially good for a kidnapping case, no?
Amicus Brief in the Michigan Second Amendment Stun Gun Case
Michael Smith and I have just filed an amicus brief that I drafted for Arming Women Against Rape & Endangerment (AWARE) in the Michigan Second Amendment stun gun case, People v. Yanna. As I noted in April, a Michigan trial court had struck down the Michigan stun gun ban on Second Amendment grounds; the case is now on appeal to the Michigan Court of Appeals.
I quote below the body of the argument in the brief, minus the footnotes; but if you're interested in the issue, you might just want to read the PDF. The brief is built on the arguments I made in my Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199 (2009), but it also has a much more extended discussion of why the Second Amendment should be read as extending beyond firearms, and in particular to stun guns. Many thanks to Michael Smith — an experienced Michigan appellate lawyer — for all his help with this project!
I. Many People Have Good Reason to Choose Stun Guns or Tasers as Self-Defense Tools.
Michigan rightly allows people to possess and carry guns. See MCL 28.422. But different people have different self-defense needs, and they should be able to choose other means of defending themselves, as well—especially when those means are much less deadly than guns, as is the case for stun guns (electric weapons that require the user to touch the target with the weapon) and Tasers (electric weapons that shoot a probe that delivers the electric shock). See Appellant's Brief App. VIII (parties' stipulation that such weapons are "generally nonlethal").
Some people, for instance, have religious or ethical compunctions about killing. For instance, noted Mennonite theologian John Howard Yoder, noted Pentecostalist theologian David K. Bernard, and the Dalai Lama have expressed the view that while one ought not use deadly force even in self-defense, self-defense using nondeadly force is permissible. Some members of other religious groups, such as Quakers, share this view. Other religious and philosophical traditions, such as the Jewish and Catholic ones, take the view that defenders ought to use the least violence necessary. Some religious believers might therefore conclude that, when fairly effective nondeadly defensive tools are available, they should be used in preference to deadly tools.
Other people might feel they will be emotionally unable to pull the trigger on a deadly weapon, even when doing so would be ethically proper. Thus, for instance, Liqun Cao et al, Willingness to Shoot: Public Attitudes Toward Defensive Gun Use, 27 Am J Crim Just 85, 96 (2002), reports that 35 percent of a representative sample of Cincinnati residents age 21 and above said they would not be willing to shoot a gun at an armed and threatening burglar who had broken into their home. (The fraction was higher for women respondents. Id at 100.) It seems likely that many of the 35 percent feel they would be psychologically unprepared to shoot an attacker, even if they were ethically permitted to do so.
Others might worry about erroneously killing someone who turns out not to be an attacker. Still others might be reluctant to kill a particular potential attacker, for instance when a woman does not want to kill her abusive ex-husband because she does not want to have to explain to her children that she killed their father, even in self-defense. Others might fear a gun they own might be misused, for instance by their children or by a suicidal adult housemate. Still others, such as people with past criminal convictions, may be barred from owning firearms. See People v Swint, 225 Mich App 353, 362; 572 NW2d 666 (1997) (upholding MCL 750.224f's ban on gun possession by felons be¬cause it "[a]rguably" "does not completely foreclose defendant's consti¬tution¬al right to bear 'arms,' i.e., nonfirearm weapons, in defense of himself"). And even people who own guns may still want to have both a gun and a stun gun or Taser accessible, so that they can opt for a nonlethal response whenever possible, and for a lethal one when absolutely necessary. (This, of course, is part of the reason that police officers carry both kinds of weapons.)
These are not just aesthetic preferences, such as a person's desire to have a particular gun that she most likes when other equally effective guns are available. These are preferences that stem from understandable and even laudable moral belief systems, emotional reactions, or pragmatic concerns. Members of Arming Women Against Rape & Endangerment generally believe that killing in self-defense is morally proper. But people who take the opposite view should be presumptively free to act on their beliefs without having to forgo effective self-defense tools; and people who have practical reasons to prefer nonlethal self-defense weapons should likewise be presumptively free to have the weapons that they need to effectively defend themselves.
The "Right to Keep and Bear Arms" Extends Beyond Just Firearms.
The Second Amendment and the Michigan Constitution speak of the "right to keep and bear arms," not of a right to keep and bear guns or firearms. US Const, Am II; Const 1963, art 1, § 6. And the United States Supreme Court, the Michigan Supreme Court, this Court, and courts of other states have treated the right as extending beyond firearms.
The United States Supreme Court Has Treated the "Right to Keep and Bear Arms" as Extending Beyond Just Firearms.
The Supreme Court concluded in District of Columbia v Heller, 554 US 570 (2008), that "arms" refers to "weapons of offence, or armour of defence," or "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another," id at 647 (quotation marks and citations omitted)—terms that cover more than just guns. And the Court, in the section discussing the phrase "keep and bear arms," id at 581–92, four times expressly discussed non-firearms as "arms."
First, in showing that "keep and bear arms" included civilian possession of arms for self-defense, the Court noted that, "Timothy Cunningham's important 1771 legal dictionary" "gave as an example of usage: 'Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms,'" id at 581 (citation omitted). Including the Cunningham quotation would have been pointless—indeed, counter¬productive to the Court's argument—if the Court saw "arms" as limited to firearms.
Later in that section, the Court said that various "legal sources frequently used 'bear arms' in nonmilitary contexts," id at 587, and cited several examples. One such citation was a repeat of the Cunningham quote. See id at 587–88 ("Cunningham's legal dictionary, cited above, gave as an example of its usage a sentence unrelated to military affairs ('Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms')"). The other quoted the great international law scholar Vattel. See id at 587 n10 ("E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) ('Since custom has allowed persons of rank and gentlemen of the army to bear arms in time of peace, strict care should be taken that none but these should be allowed to wear swords')"). Both examples treated "arms" as including non-firearms; again, both would have been pointless and counterproductive if the Court believed "arms" meant only guns.
Three pages later, the majority mentioned knives as an example of "arms." The dissent had pointed to a proposed version of the Second Amendment that included a conscientious-objector provision—a provision that was deleted as the Bill of Rights made its way through Congress—in support of its view that "bear arms" must have been limited to military contexts. The majority disagreed:
[The deleted provision] was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever—so much so that Quaker frontiersmen were forbidden to use arms to defend their families, even though "[i]n such circumstances the temptation to seize a hunting rifle or knife in self-defense ... must sometimes have been almost overwhelming."554 US at 590 (emphasis added) (citation omitted). The Court thus included knives alongside rifles as examples of "arms" for Second Amendment purposes.
To be sure, Heller speaks mostly about guns. But the law challenged in Heller was a gun ban, so it makes sense that guns would be the Court's primary focus. The quotes given above, though, show that the Court's references to firearms were not intended to limit the Second Amendment to a right to bear only firearms.
The Michigan Supreme Court Has Treated the "Right to Keep and Bear Arms" as Extending Beyond Firearms.
The Michigan Supreme Court in interpreting the Michigan Constitution appears to likewise view the phrase "right to keep and bear arms" as covering weapons other than guns. In People v Brown, 253 Mich 537; 235 NW 245 (1931), the Court noted that the right to keep and bear arms is subject to regulations, but stressed that such regulations "cannot constitutionally result in the prohibition of the possession of those arms which, by the common opinion and usage of law-abiding people, are proper and legitimate to be kept upon private premises for the protection of person and property." 253 Mich at 541. And in noting the narrowness of the statute in question, the Court stressed that the law "does not include ordinary guns, swords, revolvers, or other weapons usually relied upon by good citizens for defense or pleasure." Id at 542 (emphasis added).
Brown thus makes clear that, for 70 years, Michigan law has viewed "the right to keep and bear arms" as extending beyond firearms, treating swords and revolvers analogously as potentially the sort of "arms" that "are proper and legitimate to be kept . . . for the protection of person and property," and that are therefore constitutionally protected.
This Court Has Treated the "Right to Keep and Bear Arms" as Extending Beyond Just Firearms.
Likewise, this Court has treated the "right to keep and bear arms" in the Michigan Constitution as covering weapons other than guns. In Swint, this Court upheld Michigan's ban on gun possession by felons, relying expressly on the view that the "right to keep and bear arms" covered more than just guns (and thus left felons with other weapons for self-defense):
We also note that while [Const 1963,] art 1, § 6 ensures a Michigan citizen's right to keep and bear "arms," that term is not defined. Black's Law Dictionary (6th ed.), p 109, defines "arms" as "anything that a man wears for his defense, or takes in his hands as a weapon." While MCL § 750.224f; MSA § 28.421(6) only precludes a former felon's use, possession, receipt, sale or transportation of a "firearm," it is silent regarding other "weapons." Arguably, MCL § 750.224f; MSA § 28.421(6) does not completely foreclose defendant's constitution¬al right to bear "arms," i.e., nonfirearm weapons, in defense of himself. [225 Mich App at 362].As the Court went on to note,
"[A]s long as our citizens have available to them some types of weapons that are adequate reasonably to vindicate the right to bear arms in self-defense, the state may proscribe the possession of other weapons without infringing on" the constitutional right to bear arms. [Id at 362 (emphasis in original) (citation omitted)].Swint thus made clear that "arms" includes "nonfirearm weapons," and expressly relied on that in concluding that the ban on felon gun possession was constitutional because it left felons free to possess "some types of weapons"—other than guns—"that are adequate reasonably to vindicate the right to bear arms in self-defense." Id.
Note that Heller does not undermine the soundness of Swint with regard to felons' continuing rights to possess some non-firearms weapons. The Supreme Court in Heller held only that "nothing in [the] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons." Heller, 554 US at 626 (emphasis added).
Other Courts Have Treated the "Right to Keep and Bear Arms" as Extending Beyond Just Firearms.
More recently, state courts in Delaware, Ohio, and Oregon have likewise concluded that the right to keep and bear arms extends beyond just firearms. See State v Griffin, 2011 WL 2083893, *7 n62; 2011 Del Super LEXIS 193, *26 n62 (Del Super Ct, May 16, 2011) (holding that the "right to keep and bear arms" under the Delaware Constitution extends to knives, and concluding that the Second Amendment right does the same); City of Akron v Rasdan, 105 Ohio App 3d 164, 171–172; 663 NE2d 947 (Ct App, 1995) (treating a restriction on knife possession as implicating the "right to keep and bear arms" under the Ohio Constitution, though concluding that the restriction is constitutional because "[t]he city of Akron properly considered this fundamental right by including in [the knife restriction] an exception from criminal liability when a person is 'engaged in a lawful business, calling, employment, or occupation' and the circumstances justify 'a prudent man in possessing such a weapon for the defense of his person or family'"); State v Delgado, 298 Or 395, 397–404; 692 P2d 610 (1984) (holding that the "right to keep and bear arms" under the Oregon Constitution extends to knives); State v Blocker, 291 Or 255, 257–258; 630 P2d 824 (1981) (same as to billy clubs), citing State v Kessler, 289 Or 359; 614 P2d 94 (1980); also Barnett v State, 72 Or App 585, 586; 695 P2d 991 (Ct App, 1985) (same as to blackjacks).
Likewise, Florida's Attorney General has expressly concluded that the right to keep and bear arms covers stun guns and Tasers, determining that "the term ['arms'] is generally defined as 'anything that a man wears for his defense, or takes in his hands as a weapon.'" 1986 Fla Op Att'y Gen 2, 1986 Fla AG LEXIS 107 (January 6, 1986). And the Attorney General relied on this to conclude that county-level regulation of stun guns and Tasers is unconstitutional, because the Florida Constitution's right to bear arms reserves regulation of arms—including stun guns and Tasers—to the legislature.
We do not know of any recent cases that have disagreed with this consensus, and that have read "arms" as limited to guns. Indeed, the only two cases cited by the State as supposedly limiting "arms" to guns, Wooden v United States, 6 A3d 833 (DC, 2010), and Mack v United States, 6 A3d 1224 (DC, 2010), held only that the question was unresolved in the D.C. courts. This is all the D.C. Court of Appeals needed to decide in those cases, because the defendants in both cases failed to properly object at trial, and their convictions were thus reviewed only for "plain" or "obvious" error. Wooden, 6 A3d at 839; Mack, 6 A3d at 1236–37.
Thus, Wooden noted that Heller focused only on firearms—understandable, since the law at issue in Heller was a gun ban—and went on to acknowledge that "[p]erhaps a detailed Heller–type analysis would result in a conclusion that some kinds of knives today" "may qualify for Second Amendment protection." 6 A3d at 839. Likewise, Mack said only that "it is not at all clear that the Second Amendment right to keep and bear arms applies to the ice pick carried by Mr. Mack." 6 A3d at 1235. The court was, in the words of Mack, "disinclined" in both cases "to delve further into these questions when our review is limited by the plain error standard." 6 A3d at 1236–37.
The Second Amendment "Right to Keep and Bear Arms" Covers Stun Guns and Tasers.
The Supreme Court in Heller did stress that the Second Amendment does not cover all arms:
We also recognize another important limitation on the right to keep and carry arms. [United States v Miller, 307 US 174; 59 S Ct 816; 83 L Ed 1206 (1939)] said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804). [Heller, 554 US at 627 (some citations omitted)].Thus, "dangerous and unusual" weapons are seen as historically excluded from the scope of the right to keep and bear arms.
But this suggests that the exception is indeed limited to weapons that are not only "unusual" but also "dangerous." And since all weapons are "dangerous" to some extent, the reference to "dangerous . . . weapons" must mean weapons that are more dangerous than some threshold, or more dangerous than the norm—likely weapons that are unusually dangerous.
Whatever else might fall under that description, stun guns and Tasers are not unusually dangerous weapons. They are much less dangerous than guns, which are constitutionally protected and broadly allowed in Michigan. They are less dangerous even than knives, clubs, and other such devices—including, in some circumstances, bare hands. Caldwell v Moore, 968 F2d 595, 602 (CA 6, 1992) ("It is not unreasonable for the jail officials to conclude that the use of a stun gun is less dangerous for all involved than a hand to hand confrontation").
To be sure, all attacks are potentially deadly: pushing or punching someone may cause him to fall the wrong way and die. But stun guns and irritant sprays are so rarely deadly that they merit being viewed as tantamount to generally non-deadly force, such as a punch or a shove. The best estimates seem to be that deliberate uses of Tasers are deadly in less than 0.01% of all cases, as compared to an estimated 20% death rate from gunshot wounds in deliberate assaults, and an estimated 2% death rate from knife wounds in deliberate assaults). Eugene Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life, 62 Stan L Rev 199, 205 (2009). This is why we label stun guns as "nonlethal" or "nondeadly" weapons, consistently with the parties' stipulation in this case that stun guns are "generally nonlethal," Appellant's Brief App. VIII.
Likewise, though stun guns and Tasers can be used in crimes as well as in lawful self-defense, that is true of all weapons. If private ownership of arms posed no risks, there would be no movements to ban arms, and no need to secure constitutional protection of arms. The premise of the constitutional right to keep and bear arms in self-defense is that self-defense is a basic right, and that people must be able to possess the tools needed for effective self-defense despite the risk that some people will abuse those tools. And if that is true for deadly weapons such as handguns, it is especially true for almost entirely nonlethal weapons, such as stun guns and Tasers.
Of course, stun guns and Tasers were unknown when the Second Amendment was enacted, but Heller expressly rejected the view "that only those arms in existence in the 18th century are protected by the Second Amendment." 554 US at 582 (2008). Instead, Heller held, "[j]ust as the First Amendment protects modern forms of communications [such as the Internet], and the Fourth Amendment applies to modern forms of search [such as heat detection devices], the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Id (citations omitted).
People v Smelter, 175 Mich App 153, 155; 437 NW2d 341 (1989), did conclude that stun guns were not protected by the Michigan Constitution's Second Amendment analog, Const 1963, art 1, § 6, because the state may "prohibit weapons whose customary employment by individuals is to violate the law." But Smelter does not control here, since it predates both 1990 (and thus is not binding under MCR 7.215(J)(1)) and Heller. Further, Smelter offered no evidence in support of its bald assertion that stun guns were customarily used to violate the law in the late 1980s; and the briefs offered no such evidence, either. Answer in Opposition to Application, People v Smelter, No. 100234 (Mich Apr 17, 1989), http://www.law.ucla.edu/volokh/smelt... Application for Leave to Appeal, People v Smelter, No. 100234 (Mich Mar 14, 1989), http://www.law.ucla.edu/volokh/smelte... Brief of Appellee, People v Smelter, No. 86–678412 (Mich Ct App Feb. 24, 1988), http://www.law.ucla.edu/volokh/smelte... Brief of Appellant, People v Smelter, No. 86–678412 (Mich Ct App Nov. 10, 1987), http://www.law.ucla.edu/volokh/smelte.... Indeed, Taser Corp. reports that it sold 241,000 Tasers to civilians as of September 30, and there is also an unknown number of non-Taser stun guns that have been lawfully sold to civilians in the 43 states that do not ban Tasers and stun guns. See Eugene Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life, 62 Stan L Rev 199, 244 (2009) (collecting statutes). Naturally, there is no census of how many of the buyers are criminals; but there is no evidence at all that such criminal buyers form a majority or even a large minority of all buyers.
The State cites 25 published cases nationwide, over a nearly 20-year period (1993–2011), in which stun guns or Tasers were possessed or used by criminals, Appellant's Brief at 22–26. It argues that "[t]hese cases clearly demonstrate that Tasers and stun guns are not 'typically possessed . . . for lawful purposes' as required by Heller," Id at 26. But those cases demonstrate no such thing. Even if they represent only 1 percent of all the criminal uses of stun guns and Tasers, so that there were 2,500 hypothetical criminal uses nationwide over those three decades—or nearly 140 hypothetical cases per year—those cases would tell us nothing about the typical behavior of the over 200,000 civilian owners of stun guns, the overwhelming majority of whom no doubt are law-abiding women and men who, like AWARE's members, carry them solely for self-protection.
Indeed, in just the past 36 months, this Court has seen more than a dozen cases in which a baseball bat was used to inflict serious injury or death, and others in which a bat was used in furtherance of crimes such as felonious assault, vehicle theft, and witness intimidation. Yet we would not infer from these cases that the "customary employment" of a baseball bat is crime, as opposed to the Tuesday night softball league. Likewise, the State's cases do not show that the "customary employment" of stun guns is crime, as opposed to lawful possession for lawful self-defense.
Finally, as noted above, this Court in Swint held that felons may be barred from owning firearms because they remain free to own "nonfirearm weapons." 225 Mich App at 362–363. And it expressly relied on that in concluding that the ban on felon possession of guns was constitutional because it left felons free to possess "some types of [nonfirearm] weapons that are adequate reasonably to vindicate the right to bear arms in self-defense." Id at 362. Any such nonfirearm weapons—such as knives or clubs—necessarily involve some risk of abuse and injury, and indeed considerably greater risk of death than stun guns do. See, nn 5 & 6. It would make little sense for the right to bear arms to be read as allowing felons to possess quite lethal nonfirearm weapons, while at the same time denying everyone (felon or not) the right to possess much less lethal stun guns.
Our Frugal Forebears (?)
From Yeager(1974) in the Southern Economic Journal, 41(1): 96–102: "Concern has been expressed that the burden of consumer indebtedness is becoming so excessive as to constitute a threat to the stability of the economy." To which he adds later, "One interpretation of the information developed thus far is that American consumers have reached a 'saturation point' in the amount of debt they wish to carry or are able to carry, relative to disposable income. This saturation point was apparently reached in the mid-sixties...." Actually the latter point is true by many measures of household indebtedness–the real growth in household debt was in the post-War period and since then we've seen largely a change in the composition of debt but not the overall debt burden.
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