Eugene Volokh's Blog, page 2709

Cert Petition in Fisher v. Texas

(Todd Zywicki)

A cert petition has been filed in Fisher v. Texas, which challenges the racial and ethnic admission preferences at UT-Austin.  The cert petition is here.  David and Ilya blogged on this after the Fifth Circuit's ruling.  It is an important case for the reasons that David and Ilya noted at the time and I hope the Supreme Court will take it.

Google changes my life, again

(Stewart Baker)

I find even good flight search sites, like Hipmunk, Yapta, and Kayak, a little frustrating.  Now Google Flight Search is getting ready to do what Google does best – transform Internet tools for free. Google's new travel search service is the first fruit from its acquisition last year of ITA Software, a travel search firm.

Lots of travel sites trembled when Google bought ITA.  And well they should.

This thing is cool.

You kind of have to explore it yourself, but the visualization tools are excellent and will save you money.  Example: A weekend trip Burlington from Washington would cost $845 right now.  Last time I took that trip, I had to fly to Albany and drive to get a decent fare.  Now, thanks to Google Flight's visualization of future weekend fares, I've discovered that United will sell me a $219 weekend ticket from Dulles to Burlington if I just make reservations about a month in advance.  (To see this example, go to the search page for that trip and click on the little calendar icon on the top right side of the page.)

That's the kind of thing you could learn from the other sites only by laboriously typing dates over and over again, then waiting to see what turned up. With Google Flight, the low fare just jumps out at you.  There's lots more geeky fun to be had with other tools, too.

EPA Postpones Another Air Rule

(Jonathan H. Adler)

Two weeks ago, President Obama asked EPA Administrator Lisa Jackson to shelve plans to tighten the National Ambient Air Quality Standard for ozone, leaving any reconsideration of the current standard until 2013. This past week, the EPA announced it was delaying the planned release of proposed regulations to control greenhouse gas emissions from power plants under the Clean Air Act. This is the second time EPA has delayed publication of these rules.

Viewed together, these decisions suggest the Obama Administration is making a conscious effort to moderate its regulatory policy, particularly in the environmental area. If so, why would this be? Could it possibly make political sense for the Obama Administration to acquiesce to GOP attacks on environmental protection? After all, as Ann Carlson noted at Legal Planet, environmental protection remains popular,and polls suggest relatively few Americans believe environmental regulation costs jobs (though it can).

It is inconceivable that the Obama Administration believes that these moves will placate Tea Party opposition or win plaudits from across the aisle. But that's not the point. Nor is aggregate popular opinion on these questions particularly relevant to the political calculus. Rather, as I noted in comments to Ann Carlson's post, what matters are the views of marginal voters and, in particular, marginal voters in politically significant states. That is, the opinions of moderates and independents in Ohio, Pennsylvania and West Virginia matter more than the views of environmental activists in San Francisco or Washington, D.C.

Viewed in this light, the political rationale of these decisions is easier to understand. Insofar as these moves are politically inspired, it would appear the aim is to placate those potential constituencies in battleground states most sensitive to the costs of new and impending environmental regulations. Think coal and power company unions, small businesses in what remains of the industrial midwest, and moderate Democrats in state and local governments whose enthusiasm is essential for voter turnout. These sorts of groups are more likely to notice whether the Obama Administration appears to be moderating the EPA's regulatory zeal or tightening the screws, and such issues may influence their votes.  There's a reason Joe Manchin (D-WV) ran against environmental regulation, and the White House is certainly understands where proposed environmental rules would have the greatest economic effect.

None of this means that the Obama Administration's decisions were politically driven — I have no deep inside sources — or that they are politically wise.  The ozone NAAQS decision was almost certainly political, but the latest decision may well have been influenced by other concerns.  But if the Obama Administration is deliberately trimming the EPA's sails, the political calculus is easy to understand.

Ignoring the Text of Federal Rule of Evidence 702

(David Bernstein)

I've noted before that many federal courts simply ignore the text of Federal Rule of Evidence 702 in favor of their own formulations, sometimes relying on cases that were decided before Rule 702 was amended in 2000, and that conflict with the amended rule. I just came across a good example. On September 7th, the Eleventh Circuit decided the case of Rosenfeld v. Oceana Cruises, in which the court overturned a district court ruling excluding the testimony of a floor safety expert.

Here's the Eleventh Circuit, quoting a 2004 case that in turn quoted a 1998 case–a case that predates not only amended Rule 702, but also the Kumho Tire case that established standards for the admissibility of non-scientific expert testimony while overruling, you guessed it, an overly lenient Eleventh Circuit opinion:

[T]rial courts determining the admissibility of expert testimony under Federal Rule of Evidence 702 must "engage in a rigorous three-part inquiry," considering whether:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert [v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)]; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

That is perhaps a reasonable test, but it doesn't happen to be the same as the three-part test that Rule 702 quite explicitly enumerates, to wit:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The Eleventh Circuit notes that "Oceania argues that Vournechis's methods failed to accurately test for wet conditions, and that his conclusions were 'imprecise and unspecific' and based on 'incorrect assumption[s]' about the location of Rosenfeld's fall." Then, applying its own test, the court concludes that "these arguments attack the weight and the persuasiveness of Vournechis's testimony, not its admissibility."

Whoa! Part (3) of Rule 702 specifically states that expert testimony is only admissible if
"the witness has applied the principles and methods reliably to the facts of the case." If, in fact, Vournechis did, for example "fail to accurately test for wet conditions," then he did not apply his principles and methods reliably to the facts of the case, and this is an issue of admissibility, not mere weight. But since the Eleventh Circuit doesn't quote or otherwise pay any attention to the text of the rule it's purporting to apply, and instead applies the test it invented instead, it not surprisingly gets the law wrong.

In fairness to the court, though, I should point out that none of this was explained by the defendant's attorneys, who never cite the text of Rule 702 in their brief.

Prof. Nick Rosenkranz (Georgetown), Guest-Blogging

(Eugene Volokh)

I'm delighted to report that Prof. Nick Rosenkranz (Georgetown) will be guest-blogging starting Monday about his new article, The Objects of the Constitution, 63 Stanford Law Review 1005 (2011), as well as his earlier The Subjects of the Constitution, 62 Stanford Law Review 1209 (2010) (which drew a great deal of attention when it was published, including raves from our own Randy Barnett). Here's a summary of Nick's approach:

Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?

As judicial review is practiced today, courts skip over this bedrock question to get to the more familiar question: how was the Constitution violated? But it makes no sense to ask how, until there is an answer to who. Indeed, in countless muddled lines of doctrine, puzzlement about the predicates of constitutional violation follows directly from more fundamental confusion about the subjects.

Confusion about the who (and, relatedly, the when) of constitutional violation has been the root cause of many of the deepest puzzles of federal jurisdiction — puzzles of ripeness, of standing, of severability, of "facial" and "as-applied" challenges. Simply by focusing attention on this crucial constitutional feature, the subjects of the Constitution, these puzzles may be solved once and for all. And as they are solved, it becomes clear that this approach constitutes a new model of judicial review.

But the implications of this new paradigm are not limited to federal jurisdiction. It turns out that confusion over the deep puzzles of federal jurisdiction has had subtle but profound feedback effects on substantive constitutional doctrine as well. Once these jurisdictional puzzles are solved, the scope of constitutional rights and powers comes into new focus as well. These implications ripple through the most important and controversial doctrines of constitutional law, from the scope of the Commerce Clause to the reach of the First Amendment, from the meaning of equal protection to the content of privileges and immunities, from the nature of due process to the shape of abortion rights.

And all of it derives from nothing more complicated than asking the right first question: who has violated the Constitution?

I much look forward to Prof. Rosenkranz's visit.

Should We Support the "Whole Constitution"?

(Ilya Somin)

Co-bloggers Eugene Volokh and Jonathan Adler have made some powerful criticisms of the "Whole Constitution Pledge"put together by various liberal organizations. As Jonathan points out, there are some parts of the Constitution that most liberals prefer to underenforce, if not completely repudiate.

I would go further than that and note that at least a few parts of the Constitution are completely indefensible, including by the standards of modern liberals. For example, how many of the organizations behind the Whole Constitution Pledge support the provision in the Constitution that allows only native-born citizens to run for the presidency? I know I don't — and it's not because I have any desire to run for president myself. At best, this provision reflects unjustified suspicion of immigrants; at worst it's rank bigotry. How about the rule under which the vice president (in his capacity as president of the Senate) gets to preside over his own impeachment trial? Does anyone, liberal or otherwise, believe that's a good idea?

There are other parts of the Constitution, which though not obviously wrong, are at least open to serious criticism. For example, I think that it should be easier to break up excessively large and dysfunctional states, such as California. A number of liberal legal scholars, such as Sanford Levinson, believe it's a bad idea to give some states fifty times greater representation per capita in the Senate than others. Are their ideas beyond the pale of reasonable discourse? Obviously not.

The Founding Fathers did a great job overall. But a few parts of their handiwork were flawed from the start, and some others that may have been defensible in 1787 or 1868 are no longer so today. For these reasons, I do not pledge to support the whole Constitution. Some parts of it are unworthy of support. I do urge judges and other government officials to impartially enforce all of its provisions for so long as they remain unamended. But that is not the same thing as endorsing their propriety.

Obviously, not all constitutional reform proposals are good ideas. For example, I am skeptical of calls by some on the right for the repeal of the 17th Amendment. But if you want to defend that Amendment against its critics, it's not enough to endorse the "Whole Constitution" or to make general claims that "our Constitution has been improved by the Amendments adopted over the last 220 years," as the Pledge puts it. You have to explain, as I tried to do, why repealing this particular amendment would do more harm than good.

New law school textbook on the Second Amendment and firearms regulation

(David Kopel)

Very early next year–in time for 2d semester classes in the 2011-12 academic year–Aspen Publishers will publish the first law school textbook on the the Second Amendment. The title is Firearms Law and the Second Amendment: Regulation, Rights, and Policy. The co-authors are Nicholas Johnson (Fordham), Michael O'Shea (Oklahoma City), George Moscary (Connecticut), and me.

Below the fold is the full Table of Contents and Preface for the book. (Pasting the Word document into the blog format significantly altered many of the indents, line spacing, and outline numbering for chapter subdivisions, so the TOC below does not look exactly like the TOC of the book itself.) Because the textbook is currently in the production process, review copies are not yet available. Indeed, the Aspen website's promotional page for the book is still several weeks away. However, if you might use the textbook next semester, and would like to see some chapters, just contact any of the co-authors, and we can mail them to you.

The 11 chapters of the printed textbook proceed chronologically, from ancient Rome, Greece, and China, all the way to the post–Heller cases. Four additional, on-line only chapters cover some special topics. Those electronic chapters will be available to all students and professors using the textbook.

Besides being sold as a conventional hardback, Firearms Law will also be available in individual electronic chapters. So if you are teaching a constitutional law course and would like to include a 2 or 3 week unit on the Second Amendment, your students could buy chapter 9 (Heller and McDonald) plus chapter 11 (post–Heller cases in the lower courts). Or if you're teaching an advanced criminal law class, you might want to have your students buy chapter 8, which covers the modern criminal law of gun control, particularly under the federal Gun Control Act.

Summary of Contents

 

Contents

Preface

Acknowledgements

Editorial Note

 

PART ONE

THE ORIGINS OF THE RIGHT TO ARMS

 

Chapter 1. A Brief Introduction to Firearms and Their Regulation

Chapter 2. Antecedents of the Second Amendment

Chapter 3. The Colonies and the Revolution

Chapter 4. The New Constitution

Chapter 5. The Right to Arms, Militias, and Slavery in the Early Republic and Antebellum Periods

Chapter 6. Reconstruction and Beyond

 

 

PART TWO

THE RIGHT TO ARMS IN THE MODERN WORLD

 

Chapter 7. A New and Dangerous Century

Chapter 8. Between Miller and Heller: The Second Amendment in the Modern Era

Chapter 9. The Supreme Court Affirms an Individual Right to Arms

Chapter 10.  The Right to Arms after Heller

Chapter 11.  Firearms Policy and Status: Race, Gender, Age, Disability, and Sexual Orientation

 

Table of Cases

Table of Statutes and Constitutions

Table of Authorities

Index

 

PART THREE (ON-LINE)

SPECIAL TOPICS ON ARMS AND SELF-DEFENSE

 

Chapter 12.  Social Science on Guns and Self-Defense

Chapter 13.  International Law

Chapter 14.  Comparative Law

Chapter 15.  Detailed Explanation of Firearms and Ammunition

 

Contents

 

Preface

Acknowledgements

Editorial Note

 

PART ONE

THE ORIGINS OF THE RIGHT TO ARMS

 

Chapter 1

A Brief Introduction to Firearms and Their Regulation

 

A.  The Parts of a Firearm and Ammunition

B.  Firearm Features

Firing MechanismAmmunition FeedingSafety DevicesFirearm User Safety

C.  The Major Types of Firearms

HandgunsSemi-Automatic PistolsRevolversLegitimate Uses of HandgunsCriminal Uses of HandgunsRiflesBolt-ActionSemi-AutomaticLever-ActionSingle-ShotCharacteristics of RiflesLegitimate uses of riflesCrime with riflesShotgunsShotgun ShellsTypes of ShotgunsLegitimate Uses of ShotgunsCrime with shotguns

D. Modern Gun Control Laws

Purchasing a Gun from a Commercial DealerPurchasing a Gun from Other PersonsPurchases in Various LocationsGun RegistrationKeeping the Gun at HomeTarget ShootingHunting with a GunCarrying a Gun for Protection At Home, or in Your Place of BusinessIn your automobileIn Public PlacesLocal laws

10. Using a Gun for Self-defense

E.  Gun Control Controversies Today

Appendix: The Right to Arms in State Constitutions

 

 

Chapter 2

Antecedents of the Second Amendment

 

A.  The Early Far East

Confucianism

The Analects of Confucius

Mencius

Taoism        

Tao Te Ching

Wen Tzu

The Master of the Hidden Storehouse

Huainanzi

B.  Ancient Greece and Rome

1. Greece

Greek lawPlato vs. AristotlePlatoAristotle

Aristotle's Constitution of Athens, ch XV

Rome

Corpus Juris

C.  Judeo-Christian Thought

Jewish ThoughtEarly Christian ThoughtThe Sermon on the MountThe Final Instructions to the ApostlesThe Arrest of JesusPaul's Letter to the RomansOther Early Christian WritingsMedieval Christian ThoughtJohn of Salisbury's PolicraticusThomas Aquinas

D. Second-millennium Europe

Italian Influence

Cesare Beccaria, An Essay on Crimes and Punishments, ch. 40

EnglandMagna ChartaEnglish statutes

     Assize of Arms

     Statute of Northampton

     Gun and crossbow control

Castle Doctrine CasesHue and Cry, the Militia, the Glorious Revolution, and the Declaration of RightBlackstoneJohn Locke, Jean de Barbyrac, and John Adams

John Locke, Second Treatise of Government

Novangelus

 

 

Chapter 3

The Colonies and the Revolution

 

A.  Firearm Control in the Colonies

Early Arms MandatesColonial Statutes Mandating Arms Possession

Massachusetts

Maryland

Connecticut

New York    

Virginia

New Jersey

New Hampshire

North Carolina

Delaware

Pennsylvania

Colonial Statutes Mandating Arms Carrying

Virginia

Connecticut

Massachusetts

Rhode Island

Maryland

South Carolina

Georgia

Statutory requirements for Arming Free Servants and ChildrenEarly Firearm Regulation and ProhibitionSafety RegulationsLimits on Gun Sales to IndiansGun Restrictions on BlacksSporadic Disarmament of Dissidents

B.  Firearms, Self-Defense and Militias in Pre-Revolutionary America

The Boston Massacre TrialA Colonial View of the English Right to Arms

E.A. [Samuel Adams], Boston Gazette, Feb. 27, 1769

C. Religion, Arms, and Resistance

Jonathan Mayhew, A Discourse Concerning Unlimited Submission and Non-Resistance to the Higher Powers: With Some Reflections on the Resistance Made to King Charles I and on the Anniversary of his Death

Simeon Howard, A Sermon Preached to the Ancient and Honorable Artillery Company in Boston

C.  The British Crackdown

The Coercive (Intolerable) Acts and the Powder AlarmsDisarmament Orders from LondonThe Import BanCalls for Defiance: Patrick Henry and the South

Patrick Henry, The War Inevitable, Speech at the Second Revolutionary Convention of Virginia

Defiance in Practice and the Independent Militias

D. Arms and the American Revolution

Gun Confiscation at Lexington & ConcordGun Confiscation in BostonDeclaration of Causes of Taking Up Arms

The Declaration by the Representatives of the United Colonies of North America, July 6, 1775

Falmouth DestroyedThe Declaration of Independence

The Declaration of Independence

Thomas Paine on Self-Defense, Resistance, and MilitiasGun Confiscation and Smuggling ReprisedThe Militia, the Continental Army, and American Marksmanship

E.  The Articles of Confederation

F.  The Right to Arms, Standing Armies, and Militias in the Early State Constitutions and Statutes

South Carolina

Virginia

New Jersey

Pennsylvania

Delaware

Maryland

North Carolina

Georgia

New York

Vermont

Massachusetts

New Hampshire

Connecticut

Rhode Island

 

 

Chapter 4

The New Constitution

 

A.  Standing Armies, Militias, and Individual Rights—The Constitutional Convention of 1787

B.  Ratification of the Constitution

Pennsylvania

Massachusetts

Maryland

New Hampshire

Virginia

Virginia Ratification Message

Resolution of Virginia's Proposed Amendments

New York

North Carolina

Resolution of North Carolina's Proposed Amendments

Rhode Island

C.  Commentary During the Ratification Period

The Federalist Papers

The Federalist No. 29 (Alexander Hamilton)

The Federalist No. 46 (James Madison)

Tench CoxeOther Federalists

D. The Second Amendment

The Second Amendment's Path Through CongressCommentary on the Second Amendment

E.  Post-Ratification

The Militia Acts

First Militia Act of 1792

Second Militia Act of 1792

St. George TuckerTucker's BlackstoneTucker's Early Lecture Notes

F.  Federal and State Military Forces of Today

The United States Armed ForcesThe National GuardState Defense ForcesThe Unorganized Militia

 

 

Chapter 5

The Right to Arms, Militias, and Slavery in the Early Republic and Antebellum Periods

 

A.  Militias as a Military and Political Force in the Post-Revolutionary Period

The Crisis of 1798–99The Federalist ProgramThe Kentucky and Virginia ResolutionsFries's Rebellion

Robert H. Churchill, Popular Nullification, Fries's Rebellion, and the Waning of Radical Republicanism, 1798–1801

The War of 1812

B.  Antebellum Case Law on the Right to Arms Under State and Federal Constitutions

A right to carry weapons openly for self-defense

Nunn v. State

The "civilized warfare" test: militia weapons only?

Aymette v. State

A collective "right of sovereignty" subject to legislative discretion?The use of antebellum state court decisions to interpret the Second Amendment

C.  Weapons Control and Southern Culture

D. The Right to Arms and Slavery

State v. Newsom

Robert J. Cottrol & Raymond T. Diamond, "Never Intended to Be Applied to the White Population": Firearms Regulation and Racial Disparity—The Redeemed South's Legacy to a National Jurisprudence?

E.  Antebellum Legal Commentary on the Right to Arms

William RawleJoseph Story

The Second Amendment in Story's Familiar Exposition

Houston v. Moore  

 

 

Chapter 6

Reconstruction and Beyond

 

A.  The Initial Southern Response to Black Freedom

The Black Codes

Louisiana

Mississippi

Landry Parish, Louisiana

Alabama

The Ku Klux Klan and Other Extra-legal Suppression of Freedmen

B.  The Congressional Response: The Fourteenth Amendment, the Freedmen's Bureau Acts, and the Civil Rights Act

Thirteenth Amendment

Civil Rights Act of 1866

Second Freedmen's Bureau Act

Fourteenth Amendment

United States v. Cruikshank

C.  Labor Agitation and the Repressive Response

Presser v. Illinois

D. Nineteenth Century Commentary

Chief Justice Thomas M. Cooley

Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union

Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America

Other Commentary

Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes

Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes (2d ed.)

E.  Late Nineteenth Century State Laws and Cases

Andrews v. State

State v. Wilburn

The Postbellum Experience in Arkansas

State v. Duke

City of Salina v. Blaksley  

F.  State Constitutions at the Turn of the Century

G. The Self-Defense Cases

 

 

PART TWO

THE RIGHT TO ARMS IN THE MODERN WORLD

 

Chapter 7

A New and Dangerous Century

 

A.  Immigration, Labor Unrest, and Alcohol Prohibition

Patsone v. Pennsylvania

People v. Nakamura

B.  The Federal Government Begins To Act

National Firearms Act of 1934

Federal Firearms Act of 1938

Sonzinsky v. United States

United States v. Miller

C.  National Firearms Act Regulation Today

Machine guns

Short barreled rifles

Short barreled shotguns.

Silencers

Destructive devices

"Any other weapons"

The NFA transfer procedure     

D. Miller's Aftermath: The Shrinking Second Amendment

Cases v. United States

United States v. Tot

E.  Armed Citizens and the Second World War

The United StatesThe United Kingdom

 

 

Chapter 8: Between Miller and Heller: The Second Amendment in the Modern Era

 

A.  The Second Amendment in the Lower Federal Courts

United State v. McCutcheon

Stevens v. United States

Cody v. United States

United States v. Brimley

United States v. Warin

United States v. Hale

B.  Six Decades of Cryptic Supreme Court References to the Second Amendment

The Right to Arms as a Liberty Interest?

Poe v. Ullman

Defining Terms Used in the Second Amendment

United States v. Verdugo-Urquidez

Muscarello v. United States

Gun Control and the Limits of Federal Power.

United States v. Lopez

Printz v United States

Exercise: The Firearms Freedom Acts

Felons and the Right to Arms

Lewis v. United States

C.  The Social and Political History of the Right to Arms Between Miller and Heller

The calm before the storm

Racial tensions

Comprehensive National Gun Control

The Rise of the Modern Gun Control Movement and the Revolt at the NRA

Handgun prohibition

The NRA Counter-offensive, and the Growing Sophistication of the Gun Control Lobby

George H.W. Bush

The Clinton Era

The Re-emergence of the Second Amendment

Columbine and the 2000 Election

The Great American Gun War Winds Down

D. Federal Regulation of Firearms in the Modern Era

The Challenge of Defining Specially Regulated Firearms

United States v. Thompson/Center Arms Company

Regulation of Retail Sales of Conventional FirearmsRegulation of buyers

National Rifle Association of America Inc. v. Reno

United States v. Moore

Regulation of sellers

United States v. Biswell

Private Sales, Private Manufacturers: The Secondary Market and Gun Shows

Scope v. Pataki

Chow v. Maryland

"Sporting Use" as a Marker of "Legitimate" Firearms

Gilbert v. Higgins

Policing of Illegal Guns

Terry v. Ohio

Staples v. United States

Litigation Against the Gun Industry and the Legislative Response

City of New York v. Beretta U.S.A. Corp

Regulation of Firearms Designated "Assault Weapons"

Springfield Armory, Inc. v. City Of Columbus

Regulation of Interstate Transportation of Firearms

Revell v. Port Authority of New York & New Jersey

Torraco v. Port Authority of New York & New Jersey

E.  On the Threshold of an Individual Right to Arms: Full Engagement of the Second Amendment by the Fifth and Ninth Circuits

United States v. Emerson

Silveira v. Lockyer

 

 

Chapter 9

The Supreme Court Affirms an Individual Right to Arms

 

A.  The Supreme Court Affirms an Individual Right to Keep and Bear Arms Against Federal Infringement

District of Columbia v. Heller

B.  The Supreme Court Incorporates the Right to Keep and Bear Arms Against the States

McDonald v. City of Chicago

Comment: Modes of Constitutional Interpretation

Textualism

Originalism

Tradition and History

Emerging Awareness

Stare decisis

Values

Liberty

Popular Constitutionalism

Good Policy Results

Judicial Activism and Judicial Restraint

Exercise: Harm in the Speech Context

Exercise: Constitutional Drafting

 

 

Chapter 10

Firearms Policy and Status:

Race, Gender, Age, Disability, and Sexual Orientation

 

A.  Firearms Policy and the Black Community

Brief for NAACP Legal Defense & Educational Fund, Inc. as Amicus Curiae Supporting Petitioner, District of Columbia v. Heller

Brief for Congress of Racial Equality as Amicus Curiae Supporting Respondent, District of Columbia v. Heller

B.  Gender

Brief for National Network to End Domestic Violence, et al. as Amici Curiae Supporting Petitioner, District of Columbia v. Heller

Brief for 126 Women State Legislators and Academics as Amici Curiae Supporting Respondent, District of Columbia v. Heller

C.  Age and Physical Disability

Brief for American Academy of Pediatrics et al. as Amici Curiae in Support of the Petition for Writ of Certiorari, District of Columbia v. Heller,

Brief for Southeastern Legal Foundation, Inc., et al. as Amici Curiae Supporting Respondent, District of Columbia v. Heller

D. Sexual Orientation

Brief for Pink Pistols, et al. as Amici Curiae Supporting Respondent, District of Columbia v. Heller,

Exercise: Subjectivity in Forming Policy Views

Exercise: Empirical Assessments, Personal Risk Assessments, and Public Policy

 

 

Chapter 11

Applying the Affirmed Right to Arms 

 

A.  The Aftermath of Heller in the District of Columbia: Intermediate Scrutiny

Heller v. District of Columbia (Heller II)

B.  The Aftermath if McDonald in the City Of Chicago: Historical Inquiry, Then Nearly Strict Scrutiny Toward The Core

Ezell v. City of Chicago

Exercise: Pressing the Edges of the Abortion Analogy

C.  An Alternative Methodology: Substantial Burden

Nordyke  v. King

D. The Presumptive Legitimacy of Disarming the Untrustworthy: Analogizing From Heller

United States v. Skoien

E.  The Second Amendment and the Gun Control Act of 1968

United States v. Marzzarella

Exercise: Soldiers and Second Amendment Scrutiny

F.  Guns In Common Use and the State Courts

People v. James

G. Child Access Prevention Laws

Commonwealth  v. Runyan

H.      The Right to Bear Arms and Carrying Handguns for Self-Defense

Peruta  v. County of San Diego

Exercise: In-state Concealed Carry

I.   Regulating the "Terror Gap"

Exercise: The Right to Bear Arms vs. Terrorism Concerns

J. Gun Regulation, Local Autonomy, and Urban Violence

Exercise: Adapting the Right to Bear Arms to Local Circumstances

K. Tyranny Control as a Justification for the Modern Right to Bear Arms

Silveira v. Lockyer

Exercise: Litigation Strategies and Ethics on Controversial Topics

 

 

Table of Cases

Table of Statutes and Constitutions

Table of Authorities

Index

 

 

 

PART THREE (ON-LINE)

SPECIAL TOPICS ON ARMS AND SELF-DEFENSE

 

Chapter 12

Social Science on Guns and Self-Defense

 

 

Chapter 13

International Law

 

A.  Modern human rights treaties and other documents

United Nations General Assembly Resolution on the Definition of AggressionAfrican Charter on Human and People's RightsEuropean Convention on Human Rights

B.  International Gun Control Treaties and Documents

Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its AspectsUN Human Rights Council on the international right of gun controlNairobi ProtocolOrganization of American States

CIFTA. Convención Interamericana Contra La Fabricación Y El Tráfico Ilícitos De Armas De Fuego, Municiones, Explosivos Y Otros Materiales Relacionados.

C.  The Founders of International Law

Francisco de VictoriaFrancisco SuárezHugo GrotiusSamuel PufendorfEmmerich de Vattel

D. Genocide

Antonio Cassese, The Various Aspects of Self-Defence

David Kopel, The Genocide Convention and the Right to Arms to Resist Genocide

E. A Global Second Amendment?

 

 

Chapter 14

Comparative Law

 

A.  National Constitutions

Constitutional Rights to Arms

Mexico

Haiti

Guatemala

Constitutional right of self-defenseConstitutional self-defense against tyrannyConstitutional security against home invasion

B. Comparative Studies

Franklin E. Zimring & Gordon Hawkins, Crime is Not the Problem: Lethal Violence in America

Martin Killias

David B. Kopel, Carlisle Moody & Howard Nemerov, Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations

C. United Kingdom in Modern Times

D. Japan

E. Nazi Germany

F. Switzerland

 

 

Chapter 15

Detailed Explanation of Firearms and Ammunition

 

A.  A Brief Introduction to the Parts of a Firearm

B.  Ammunition

BulletCasePrimerGun Powder

C.  Firearm Features

Firing MechanismMagazineSafety DevicesFirearm User Safety

D. The Major Types of Firearms

HandgunsSemi-Automatic PistolsRevolvers

                          i.          Single Action Revolvers

                        ii.          Double Action Revolvers

Legitimate Uses of HandgunsCriminal Uses of HandgunsRiflesBolt-actionSemi-AutomaticLever-actionSingle-shotCharacteristics of RiflesLegitimate uses of riflesCrime with riflesShotgunsShotgun ShellsTypes of ShotgunsLegitimate Uses of ShotgunsCrime with shotgunsSpecialty Types of Firearms And AccessoriesMuzzleloadersMachine GunsSilencers or SuppressorsArmor-piercing AmmunitionAir GunsPaint GunsNon-gun Arms

 

 

Preface

 

While this book proceeds chronologically, we expect that many users will approach the material out of sequence. Indeed, we have done so in our own classes. For example, it can be very effective to launch right into contemporary gun-law issues by starting with the Supreme Court's major cases on the Second Amendment, District of Columbia v. Heller, and McDonald v. Chicago in Chapter 9, followed by chapter 11 for post–Heller issues. It is also effective to assign the chapters covering the 17th and 18th century in conjunction with coverage of Heller and McDonald. This approach illuminates the originalist historical analysis in both cases. The most relevant original materials for Heller (from English origins to the first decades of American independence) appear in Chapters 2 through 5. The original materials relevant to the Fourteenth Amendment are in Chapter 6.

The book is sufficiently modular to accommodate instructors who wish to use particular chapters as part of more general courses, e.g., criminal law, constitutional law, or jurisprudence. For example, someone teaching criminal law might use Chapters 7 and 8 (covering the main federal gun control statutes) for a discrete segment on firearms violations. The treatments of Heller and McDonald in Chapter 9, and the material on standards of review in Chapter 11, are a nice vehicle for examining various general modes of constitutional decision-making. The material in Chapter 10 is a good choice for showing how the perspectives of divergent communities can affect assessment of legal and constitutional issues.

Instructors interested in particular policy topics, such as gun shows, import restrictions, handgun carry permits, or "assault weapons," will find sections covering them. Of course, the index will also highlight discrete treatments of such topics.

The Notes & Questions in the book frequently raise forward-looking issues and core questions that relate to current controversies. Some of the Notes & Questions are designated "Connection Questions" (CQ) to indicate their relevance to cases or topics in other chapters.

While the American debate on gun rights typically uses "the Second Amendment" as a shorthand for those rights, much of the legal history, and many of the contemporary legal battles, involves state constitutions. Today, 44 state constitutions have right-to-arms provisions. The book covers the state right-to-arms issues in depth, both for their intrinsic importance, and because the state cases sometimes provide guidance or background for understanding the Second Amendment. Because state issues appear throughout the book, readers should use the Table of Statutes and the Index to find all the material on any particular state.

 

An Overview of the Book

Chapter 1 explains how firearms function, and describes the major types of firearms. Chapter 1 also outlines the general scope of modern American gun laws, including variations among the states. The Chapter includes an Appendix of state constitutional provisions on the right to arms. The next nine chapters tell, in generally chronological order, the story of the development of gun regulation and gun rights in the United States.

The Second Amendment right to arms is widely viewed as a historical successor to the English right to arms, which was codified in the Declaration of Rights of 1689. Chapter 2 examines the historical and political background of the English right and English gun laws. It also explores the religious and philosophical background of the ideas of armed self-defense and a citizen militia. The chapter begins early Chinese philosophy, then covers ancient Greece and Rome, Judeo-Christian perspectives, medieval thought, and the Renaissance.

Chapter 3 examines the American colonial experience and the American Revolution. Colonial militias were important military and political institutions, and the militia regulations provide insight into the early understanding of the public and private roles of arms possession. The chapter also covers the British efforts to confiscate American firearms and gunpowder that played a major role in precipitating the American Revolution. Finally, the chapter covers the War of Independence and form of U.S. government before 1789.

Chapter 4 discusses the framing of the U.S. Constitution and its Bill of Rights. Ratification of the U.S. Constitution in 1789 created a more active and powerful federal government; among those new powers were direct federal control over the militia. The Bill of Rights was added to the Constitution in 1791, including a Second Amendment that affirmed the necessity of a well regulated militia, and recognized the right of the people to keep and bear arms. Chapter 4 examines the debates over the Constitution's ratification, the drafting history of the Second Amendment, and the way the American right to arms was viewed by the earliest constitutional commentators.

Chapter 5 covers the first seven decades of the new republic. This period saw an evolution of the American understanding of both the role of militias and of the individual right to arms. The chapter starts with the political crisis of 1798–1800 that brought several states to the brink of armed resistance to the Federalist political agenda. The War of 1812 displayed both strengths and weaknesses of American militias. Chapter 5 also chronicles a significant transition in the direction of gun regulation in America. While colonial and revolutionary era gun control laws were mainly concerned with forcing people to own and carry guns, by the 1820s laws prohibiting people from carrying concealed guns and knives began to emerge, particularly in the South. These laws gave rise to the first judicial opinions addressing the scope of permitted regulation under the right to arms guarantees in the federal and state constitutions. The predominant view of the courts of this period was that the constitutional right to arms included an individual right to carry common weapons for self-defense, although legislatures could regulate the right. Many courts for example concluded that legislatures retained the power to prohibiting the concealed carrying of weapons. The Southern states continued the colonial practice of enacting highly restrictive laws prohibiting the ownership or carrying of guns by slaves and, sometimes, by free blacks, setting the precedent for broader restrictions after the Civil War. Abolitionists invoked the Second Amendment to complain about the disarmament of Free Soil settlers in Kansas in the 1850s, and to argue that the slavery and the Second Amendment were incompatible.

Chapter 6 begins with the period following the Civil War, proceeds through Reconstruction, and ends at the turn of the 19th century. In this period, the Fourteenth Amendment was adopted to protect individual civil liberties against state interference—and especially to combat abuses of newly freed slaves and their supporters. The Chapter offers examples of the many sources suggesting that the Amendment was intended to secure the individual liberties guaranteed in the federal bill of rights (including an individual right to arms for self-defense) against state infringement by state and local governments. The Chapter also tracks the decline of Reconstruction, and the failure of the initial promise of the Fourteenth amendment. Material includes the decisions by the U.S. Supreme Court narrowly interpreting the Fourteenth Amendment, rendering it of little value as a guarantor of individual liberties; adoption by the Southern states of restrictive laws of the Jim Crow era; and affirmation by Southern courts of increasingly restrictive (and often racially discriminatory) regulation of firearms—particularly the carrying and ownership of inexpensive handguns. As labor unrest grew in the North, some states prohibited mass armed parades, and the Supreme Court upheld such bans in Presser v. Illinois. The Court was, however, quite protective of armed self-defense by individuals, in "The Self-Defense Cases" which arose in federal territories. 

Chapter 7 examines the early twentieth century. In this period, gun control for individuals expanded beyond the South, as Northern states, concerned about the labor movement and unassimilated immigrants, adopt a variety of handgun control laws. The Chapter also marks the emergence of the first Federal gun control laws. In the 1930s, the federal government imposed regulation on commercial gun sales. The most significant of these was National Firearms Act of 1934 (NFA), which severely restricted ownership of a few classes of firearms viewed as unusually dangerous, such as machine guns and short shotguns. Chapter 7 is anchored by the Supreme Court's treatment of a Second Amendment challenge to the NFA in United States v. Miller. Miller is a short and ambiguous opinion that declared that exercises of the Second Amendment right had to have a "reasonable relationship" to the maintenance of a well-regulated militia in order to be protected. For decades afterward, there was argument about whether Miller meant that the type of gun had to be suitable for a militia in order for it to be protected by the Second Amendment, or whether the individual had to be in a militia in order to have Second Amendment rights.  After Miller, lower federal courts began to develop a state-government-focused conception of the Second Amendment that gave little or no credence to individual challenges to federal or state gun regulations.

Chapter 8 is the longest chapter in this book. It covers the balance of the 20th century. The scope of federal firearms regulation grew dramatically in this period, with the passage of several major statutes, including the federal Gun Control Act of 1968, the Firearms Owners Protection Act of 1986, and the federal "assault weapons" ban that was enacted in and which expired in 2004. The Chapter offers a detailed treatment of the various issues that arise under the modern statutes and accompanying regulations, the vast majority of which remain valid even after the Supreme Court's 2008 affirmation of the individual right to keep and bear arms in District of Columbia v. Heller. During the late 20th century, lower federal courts rejected any version of a Second Amendment right that would impose meaningful limits on gun regulation. However, the tenor of judicial treatments of the issue began to change towards the end of the century, as scholarly and political debates bolstered the individual rights theory. The Chapter includes section of social and political history that elucidates the most important bills, statutes, controversies and political battles of the period. This history provides important context for the Supreme Court's ultimate affirmation of the individual right to arms.

Chapter 9 is dedicated to the landmark decisions in District of Columbia v. Heller and McDonald v. Chicago. In these decisions, a five-Justice majority of the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms for self-defense; that the Second Amendment right is a fundamental right made fully applicable against the states by the Fourteenth Amendment; and that handgun bans violate the Second Amendment.

Chapter 10 examines issues of gun rights and gun regulation from the special perspectives of race, gender, sexual orientation, and disability. The materials are mainly drawn from the amicus briefs filed in Heller by a variety of interest groups.

Chapter 11 addresses the aftermath of Heller and McDonald. This chapter covers several of the most important constitutional questions left unanswered by the two Supreme Court decisions, and how these topics are being addressed by state and federal courts. While, as Chapters 5 through 7 showed, state court case law on state right to arms provisions has been developing for almost two centuries, serious doctrinal development of the Second Amendment began only after Heller. Courts today are grappling with issue such as the standard of review, what types of arms are protected, and the right to "bear" arms in public places. Students and professors who want to explore gray areas in emerging legal doctrine will find Chapter 11 of particular interest.

The printed textbook ends with Chapter 11, but owners of the printed book have free access to three additional on-line chapters. These chapters are:

Chapter 12. Social science about the benefits and harms of firearms possession and use.

Chapter 13. International gun control law, from sources such as the United Nations, the Organization of American States, and other treaties and international law documents. The Chapter also covers the "Classical" period of international law, in which philosophers such as Grotius, Puffendorf, Vattel, Victoria, and Suárez built the foundations of international law partly by extrapolating from general principles of the rights and the limits of personal self-defense.

Chapter 14. Comparative gun control laws. Examining the gun laws of several nations, including Canada, the United Kingdom, Japan, Nazi Germany, Switzerland, and South Africa.

Chapter 15. While Chapter 1 provided an introduction to the different types of firearms and ammunition, and how they function, this Chapter covers the same topic in greater depth and detail. It includes many illustrations and diagrams.

While the on-line chapters are available through a locked website maintained by Aspen Publishers, there is also a free, public, website for this textbook, http://www.firearmsregulation.org. This public website provides numerous additional resources, including suggested topics for student research papers, a comprehensive list of published law review articles and ALR Annotations on arms-law topics, and links to numerous Internet resources on firearms law and policy.

 

Publishing Student research

Many students will use this book in upper-level classes in which they will write research papers. The public website offers some ideas for paper topics, as well as bibliographical and resource guides to help you get started.

Because Second Amendment doctrine is still in an early stage of development—especially in comparison to its closest analogue, the First Amendment, in which doctrinal development began in the 1930s—there are many opportunities for law student papers to make a genuine contribution to legal knowledge and analysis. If you write a good paper for your class, send it to us for consideration for publication on the public website.

Media Matters and Lochner

(David Bernstein)

When we last encountered the Media Matters blog, its authors reacted to a George Will column on Rehabiltating Lochner by declaring that Lochner v. New York is "in no way a liberal bogeyman."

Today, reacting to a blog post of mine suggesting that the idea that federal power does not constitutionally extend to broad child labor laws is not all that shocking given that the states could and did regulate child labor before the feds stepped in, the MM blogger chimes in: "Is George Will on board with dismantling federal child labor laws, or did he not know what he was getting into when he endorsed Lochner?"

Three salient points: (1) my blog post did not mention or allude to Lochner in any way; (2) Lochner does not, in fact, have anything to do with the constitutionality of federal labor laws given that Lochner was a due process case about liberty of contract and the scope of the states' police power while the historical constitutional debate over child labor laws revolved around Congress's entirely distinct Commerce Clause power; and (c) if the Media Matters blogger (Adam Shah) had bothered to read my book, which I'm sure he has not, he would know that I point out that liberal legal commentators have spent the last several decades misusing Lochner to attack purportedly "conservative" constitutional doctrines that have nothing to do with the issues involved in Lochner. The Commerce Clause, Takings Clause, Contracts Clause, non-delegation doctrine, commercial speech and more get lumped into the "Lochner" framework because that's a lot easier than explaining why, e.g., the power to regulate commerce among the states includes the power to regulate home-grown marijuana that never enters the stream of commerce.

So, I'd like to thank Media Matters for illustrating my point. You might even say that Media Matters has shown that Lochner remains a liberal bogeyman, at least among the less constitutionally and historically sophisticated.

Eisenhower's Other Warning

(Jonathan H. Adler)

We're all familiar with President Dwight D. Eisenhower's admonition about the "military-industrial complex."  But this was only one of the "threats" he identified in his farewell address.

Akin to, and largely responsible for the sweeping changes in our industrial-military posture, has been the technological revolution during recent decades. In this revolution, research has become central; it also becomes more formalized, complex, and costly. A steadily increasing share is conducted for, by, or at the direction of, the Federal government.

Today, the solitary inventor, tinkering in his shop, has been overshadowed by task forces of scientists in laboratories and testing fields. In the same fashion, the free university, historically the fountainhead of free ideas and scientific discovery, has experienced a revolution in the conduct of research. Partly because of the huge costs involved, a government contract becomes virtually a substitute for intellectual curiosity. For every old blackboard there are now hundreds of new electronic computers. The prospect of domination of the nation's scholars by Federal employment, project allocations, and the power of money is ever present — and is gravely to be regarded.

Yet, in holding scientific research and discovery in respect, as we should, we must also be alert to the equal and opposite danger that public policy could itself become the captive of a scientific-technological elite.

Hat tip: Fred Smith.

To Really Support the Whole Constitution

(Jonathan H. Adler)

Echoing Eugene's comment below, I would feel better about the Constitutional Progressives' "Whole Constitution Pledge" if I were confident that the drafters and signatories were truly pledging to support the whole Constitution, and not just those which can be used to advance a progressive political agenda through the courts.  Not only does the whole Constitution include Article V, as Eugene notes, but it also includes the Contracts Clause, the Privileges and Immunities Clause, the First Amendment's Free Exercise Clause, the Second Amendment, the Fifth Amendment's Takings Clause, and the Ninth and Tenth Amendments as well.  Given those spear-heading the pledge, including the Constitutional Accountability Center (the successor organization to Community Rights Counsel), the Center for American Progress, the People for the American Way Foundation, and Senator John Kerry, I have my doubts.