The Volokh Conspiracy

On Friday, May 17, fifty-four Colorado Sheriffs filed a civil rights lawsuit in Federal District Court in Denver, against two anti-gun bills passed by the Colorado legislature in March. Joining the Sheriffs as Plaintiffs are the Colorado Farm Bureau, disabled persons, Outdoor Buddies (an organization that helps disabled persons participate in outdoor sports), the Colorado Outfitters Association (the trade association for hunting guides), the National Shooting Sports Foundation (the trade association for the firearms industry), magazine manufacturer Magpul, federally-licensed firearms dealers, the state’s largest shooting range, the Colorado State Shooting Association (governing body for the shooting sports in Colorado), and Women for Concealed Carry. The Complaint is available here.

The lawsuit involves House Bill 1224 (a sweeping ban on magazines, including small magazines) and House Bill 1229 (an unworkable system of background checks for temporary transfers of firearms, and for private sales). The Complaint alleges violations of the Second Amendment, Fourteenth Amendment (vagueness), and Title II of the Americans with Disabilities Act.

A 38 minute video of the press conference announcing the suit is available on YouTube. In this case, I am representing the Sheriffs.

Friday afternoon, Grand County Sheriff Rodney Johnson joined the case, bringing the number of plaintiff Sheriffs to 55 out of the 62 elected County Sheriffs in Colorado. (Denver and Broomfield have appointed Sheriffs who run the jail, but do not have the comprehensive responsibilities of the elected Sheriffs.) The Complaint will be amended next week to reflect Sheriff Johnson’s participation.

 

What is the best source detailing the activities of Walter Hines Page (President Wilson’s Ambassador to the Court of St. James) in advising the British government about how to conduct propaganda operations in the United States, prior to U.S. entry into World War I?

How about for the general American view (during the 1920s) that American entry into WWI was a mistake, and the U.S. had been tricked by British business interests?

 

 

A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate:

The Manchin-Toomey amendment was supported by the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), although the group later dropped its support for reasons unrelated to the issues raised in this post. Section 102(3) of Manchin-Toomey was the finding that “Congress believes the Department of Justice should prosecute violations of background check requirements to the maximum extent of the law.”

The alternative to Manchin-Toomey was the Grassley-Cruz substitute, which was supported by the National Rifle Association. Grassley-Cruz had a much more detailed program, with supporting funding, to increase federal prosecutions for violations of 18 U.S. Code 922 (the section which defines most of the prohibited acts by persons who are not licensed firearms dealers) and section 924 (the penalties section, with penalties for the various offenses by licensed dealers and by other persons, as well as definitions of some additional crimes). The beefed-up enforcement is in pages 15-26 of Grassley-Cruz.

Both Manchin-Toomey and Grassley-Cruz included a variety of other changes in federal gun laws, and some of them were very constructive. But as for the prosecution provisions, I think they were dubious.

To begin with, much of what is in section 922 is possessory offenses, occurring entirely within a single state. Supposedly, these provisions are enacted under Congress’s power “to regulate Commerce...among the several States.” I realize that Supreme Court since 1937 has usually been reluctant to rule that a federal criminal statute is outside the interstate commerce power. However, that judicial deference to congressional statutes is premised on the notion that Congress itself has carefully considered the constitutionality of a statute. Chief Justice Marshall’s opinion in McCulloch v. Maryland expressly discussed this point (regarding the Necessary and Proper Clause). President Andrew Jackson’s subsequent veto of the re-charter of the Second Bank of the United States cited the McCulloch opinion to make his point that the political branches must exercise their own constitutional judgment; that a deferential court has not stricken a particular type of law does not excuse Congress and the President from the task of making their own judgments about whether a particular bill is constitutional.

During the latter 20th century, the Supreme Court was fairly reticent about the meaning of the Second Amendment, but many legislators and citizen activists opposed particular anti-gun bills because they believed that such bills violated the Second Amendment. Even when there was no realistic prospect that the Supreme Court would strike down a federal law on Second Amendment grounds (e.g., in 1975), it was legitimate for legislators and citizens to oppose a bill because of Second Amendment scruples.

Accordingly, it is equally legitimate to oppose a bill today because of Commerce Clause scruples. I believe that Justice Thomas’s concurrence in Printz v. United States raised a useful question. While he joined the majority opinion (Congress cannot order local law enforcement to carry out federal background checks), he also wondered if Congress’s power over interstate commerce really permitted Congress to prescribe how a firearms retailer in one state would sell an item to a consumer in that same state. A fortiori, there are even more serious questions about federal laws regarding the mere possession of firearms intrastate, or setting conditions for firearms transactions among two people in a single state, neither of whom is engaged in interstate commerce. (The Federal Firearms Licensee is, at least, someone who is actively engaged in commerce, and who frequently receives firearms in interstate commerce, even though his subsequent sales may be only intrastate.)

Many of the provisions of sections 922 and 924 which apply to purely intrastate and non-commercial activity might well be legitimate subjects of state legislation. For example, every state has laws against gun possession by convicted felons.

But not everything in 922 would be a good idea for any level of government, and a blanket increase in enforcement of all of 922 would harm innocent people. For example, 18 U.S.C. 922(x) bans handgun possession by persons under 18. There are certain exceptions to the prohibition, but they require “the prior written approval of the juvenile’s parent or legal guardian.” Now in the United States, do you think that when 17-year-olds on a ranch take a handgun with them in the pick-up truck to go check on the cattle at night, that their parents have given them “prior written approval”?

Lack-of-written-permission prosecutions under 922(x) are close to nil, and they ought to stay that way. Demanding more 922 prosecutions could have the unintended effect of giving U.S. Attorneys and BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) agents an incentive to boost their numbers by bringing such cases.

Or let’s consider the call for greater prosecutions of people who fail the National Instant Criminal Background Check System (NICS), when they try to buy a gun in a store. The vast majority of such situations do not result in a prosecution. Is it possible that some more of them should? Yes, to the extent that some of these people are genuinely dangerous. However, I suggest that the reason that many people submit to a background check in the first place–sometimes waiting hours or days for the FBI or its state counterpart to conduct the “instant” check, is that they have no idea that they are a prohibited person.

For example, in 1979, a young man gets in a loud argument and shoving-match with his live-in girlfriend. The neighbors in the apartment next door are annoyed by the clamor, and they call the police. The young man spends a night in jail, pleads guilty to disturbing the peace, and pays a $100 fine. He may have actually been innocent, since the girlfriend shoved first. But the cost of hiring a lawyer to take the case to trial was more than he could afford. Thereafter, he stays out of trouble. He buys a gun in 1985. In 1994, when his state (let’s say it’s Virginia) now has a functioning instant check system, he buys another gun, and is duly approved. In 1996, Congress changes the law to prohibit gun possession by domestic violence misdemeanants, and make the prohibition retroactive to misdemeanors from before 1996. 18 U.S. Code 922(g)(9).

By 2013, BATFE has scoured state records of misdemeanor convictions, and decided which cases it will classify as “domestic violence.” So now the man is on the FBI’s prohibited persons list. When he tries to buy a gun in 2013, he is rejected. You can argue the pros and cons of whether he ought to be prohibited, but to me, it seems very unfair for him to be prosecuted for a federal felony.

There are many, many other examples of people who can be prohibited persons without realizing it. The Iraq War veteran who received some mental health benefits, and then the Veterans Administrations gave his name (and the names of thousands of other similar veterans) to the FBI. The woman who is a lawful user of medical marijuana pursuant to her state law, and did not know that the federal government had obtained the state list of persons with medical marijuana cards.

For above examples, it is really not a problem that no federal prosecution results when they fail the NICS check.

To the extent that federal incentives is meant to drive up the numbers for prosecutions of 922 in general, some of these people would be prosecuted even if they were not attempting to buy a gun. Perhaps one of them is driving home from a day at the target range, and a police officer pulls them over for a traffic violation, and sees the unloaded rifle in the rack of the pick-up truck. The officer runs the person’s name through the databases, and then apprehends a prohibited person in possession of a gun. A very easy federal felony prosecution, and the kind that would happen more often when federal incentives are trying to boost the number of cooperative state-federal prosecutions under 922.

I agree with the federal circuit cases that have held that illegal aliens do not have a Second Amendment right to possess firearms. But the fact that a law is constitutionally legitimate does not mean that maximizing prosecutions is always a good idea. For example, in United States v. Huitron-Guizar (10th Cir., 2012), the defendant had been brought to the United States when he was three years old. His sister was an American citizen, but he was not.  When he was 24 years old, he was discovered to have in his home a rifle, a shotgun, and a handgun. He was sentenced to 18 months in federal prison.

Grassley-Cruz put its greatest efforts into increasing prosecutions for convicted felons and fugitives. These are categories for which firearms prohibition, as a general matter, is plainly allowed under District of Columbia v. Heller. However, there’s a difference between prosecuting the guy who was released from prison for armed robbery four months ago, and is found to be illegally carrying a handgun outside a liquor store — and the guy who was convicted of tax evasion or marijuana possession three decades ago, and whose home is found to contain the unloaded hunting rifle he inherited from his father one decade ago.

The National Rifle Association  and CCRKBA have quite persuasively documented the tendency of BATFE to, at least some of the time, try to boost its numbers by concentrating enforcement efforts on easy-to-prosecute technical violations, rather than on situations where there is a real danger to public safety. Enacting new laws demanding “maximal” enforcement of NICS, or trying to increase the prosecutions for 18 U.S.C 922 & 924 across the board, would be a poor use of criminal justice resources, and would inflict very excessive penalties on many people who are harmless. If proponents of increased federal prosecution can document a large number of cases which really should be prosecuted, and which are not being prosecuted, the best solution would be a new President who would appoint a BATFE Director and U.S. Attorneys who would bring the cases which really help public safety–and who would also know that not every violation of every iota of sections 922 and 924 is worth making a federal case.

 

The Toomey-Manchin Amendment which may be offered as soon as Tuesday to Senator Reid’s gun control bill are billed as a “compromise” which contain a variety of provisions for gun control, and other provisions to enhance gun rights. Some of the latter, however, are not what they seem. They are badly miswritten, and are in fact major advancements for gun control. In particular:

1. The provision which claims to outlaw national gun registration in fact authorizes a national gun registry.

2. The provision which is supposed to strengthen existing federal law protecting the interstate transportation of personal firearms in fact cripples that protection.

Let’s start with registration. Here’s the Machin-Toomey text.

(c) Prohibition of National Gun Registry.-Section 923 of title 18, United States Code, is amended by adding at the end the following:
“(m) The Attorney General may not consolidate or centralize the records of the
“(1) acquisition or disposition of firearms, or any portion thereof, maintained by
“(A) a person with a valid, current license under this chapter;
“(B) an unlicensed transferor under section 922(t); or
“(2) possession or ownership of a firearm, maintained by any medical or health insurance entity.”.

The limit on creating a registry applies only to the Attorney General (and thus to entities under his direct control, such as the Bureau of Alcohol, Tobacco, Firearms, and Explosives). By a straightforward application of inclusio unius exclusio alterius  it is permissible for entities other than the Attorney General to create gun registries, using whatever information they can acquire from their own operations.  For example, the Secretary of HHS may consolidate and centralize whatever firearms records are maintained by any medical or health insurance entity. The Secretary of the Army may consolidate and centralize records about personal guns owned by military personnel and their families.

The Attorney General may not create a registry from the records of “a person with a valid, current license under this chapter.” In other words, the AG may not harvest the records of persons who currently hold a Federal Firearms License (FFL). Thus, pursuant to inclusio unius, the AG may centralize and consolidate the records of FFLs who have retired from their business.

Under current law, retired FFLs must send their sales records to BATFE. 18 USC 923(g)(4); 27 CFR 478.127. During the Clinton administration, a program was begun to put these records into a consolidated gun registry. The program was controversial and (as far as we know) was eventually stopped. Manchin-Toomey provides it with legal legitimacy.

The vast majority of FFLs are small businesses, often single proprietorships. Only a tiny fraction of FFLs are enduring corporate entities (e.g., Bass Pro Shops) which will never surrender their FFL. By consolidating and centralizing the records of all out-of-business FFLs, BATFE will be able to build a list of most people in the U.S. who have bought a gun from a store. The list will not be fully up-to-date for every gun owned by every individual, but the list will identify the very large majority of gun owners.

(The maxim discussed above is sometimes rendered as Expressio unius est exclusio alterius.)

Now for transportation. The 1986 Firearms Owners’ Protection Act immunizes from state law prosecution the transportation of an unloaded and inaccessible (e.g., in the trunk of your car) firearm through a state. 18 USC 926A. So if you are driving from Pennsylvania to Vermont to go hunting there, you can travel through New York State without needing to acquire a NY pistol permit. (Which NY won’t issue anyway, since NY only issues to residents.) Toomey-Manchin includes some explicit language to make clear what was already implicit in FOPA, that such travel can include situations in which, while traveling, you stop to eat, refuel, or rest:

SEC. 128. INTERSTATE TRANSPORTATION OF FIREARMS OR AMMUNITION.
(a) In General.-Section 926A of title 18, United States Code, is amended to read as follows:
“926A. Interstate transportation of firearms or ammunition
“(a) Definition.-In this section, the term ‘transport’-
“(1) includes staying in temporary lodging overnight, stopping for food, fuel, vehicle maintenance, an emergency, medical treatment, and any other activity incidental to the transport; and
“(2) does not include transportation-
“(A) with the intent to commit a crime punishable by imprisonment for a term exceeding 1 year that involves a firearm; or
“(B) with knowledge, or reasonable cause to believe, that a crime described in subparagraph (A) is to be committed in the course of, or arising from, the transportation.

But notice part (2) of the new definition: a new exclusion for any firearms crime punishable by more than year of imprisonment. In some states, such a crime includes merely not having a state-issued gun permit. So now let’s suppose that the Pennsylvanian is going to Maine. On the way, he travels through Massachusetts. Under current law, FOPA protects him. Under Manchin-Toomey, Massachusetts can arrest and imprison him, and he will have no federal defense. In Massachusetts, possession of a firearm without a state permit is punishable by imprisonment up to to 2 years. Possession outside one’s home or business is a sentence of 2.5 to 5 years, with a mandatory minimum of 18 months. New Jersey and New York City also have penalties of over one year for simple possession without a local permit.

Maybe the Pennsylvanian might qualify for some exemption under the laws of Mass., NYC, or NJ. Or perhaps not. What we know for sure is that today the Pennsylvanian is protected by FOPA, and if Manchin-Toomey passes, he will not be.

There are several other states where the relevant penalty is up to one year. Every one of them can exempt itself from FOPA by simply increasing the penalty to 367 days.

The 1986 FOPA is also known as Volkmer-McClure, for its prime sponsors, Democratic Rep. Harold Volkmer of Missouri, and Republican Sen. James McClure of Idaho. Michael E. Hammond was McClure’s manager for the bill. Hammand has identified a variety of other potential problems in Manchin-Toomey.

There are fairly small number of attorneys with serious expertise on federal firearms laws. Senator Charles Schumer, who works closely with Michael Bloomberg’s lobby, is likely to have had the full legal resources of that very well-funded organization. Conversely, based on off-the-record inquiry, I have not found any indication that Senator Toomey had any specialist expertise on his own side.

The result of the disparity is “pro-gun” provisions which are actually very strong anti-gun provisions: The supposed ban on federal firearms registration authorizes federal gun registration. The supposed strengthening of FOPA’s interstate transportation protection exempts two of the worst states (the reason why FOPA was needed in the first place), and provides any easy path for every other abusive state to make FOPA inapplicable.

FOLLOW-UP: The proponents of Schumer-Toomey-Manchin are making a big deal about the criminal penalty of up to 15 years for violating the bill’s narrow restrictions on some forms of federal gun registration. A federal prosecution would, of course, have to be initiated by the U.S. Department of Justice, which is to say the very Department which would have violated the anti-registry provision in the first place. Expecting felony self-prosecution seems highly unrealistic. A far more effective anti-registry deterrent would have been a civil cause of action, with liquidated damages and attorneys fees, against any individuals who participated in the creation of a registry.

As for transportation, far more significant than explicit language allowing drivers to take bathroom breaks would have been a civil cause of action, with attorneys fees, for violations of the existing federal statutory prohibition on arresting someone for lawful interstate transportation. Without this remedy, some rogue local law enforcement can continue to violate FOPA with impunity, as they did in the infamous case of Torraco v. Port Authority.

I would be grateful if commenters could point to cases, statutes, or secondary materials which address these questions: In Terry stops, traffic stops, and other police encounters with individuals which do not involve an arrest, under what circumstances can a law enforcement officer temporarily detain a person’s firearm? For example, for officer safety during a traffic stop? To call a central database and see if the gun’s serial number is on a list of stolen guns?

That’s the title of my forthcoming article in the University of Michigan Journal of Law Reform. My co-authors are Clayton Cramer and Joe Olson. The abstract:

This Article is the first scholarly analysis of knives and the Second Amendment. Knives are clearly among the “arms” which are protected by the Second Amendment. Under the Supreme Court’s standard in District of Columbia v.  Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.

Bans of knives which open in a convenient way (bans on switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives which, after being opened, have a safety lock to prevent inadvertent closure.

Prohibitions on the carrying of knives in general, or of particular knives, are unconstitutional. There is no knife which is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on the carrying of handguns set the upper limit for restrictions on knife carrying.

The Article is just the beginning of long overdue scholarly analysis of laws about knives. Not all households own firearms, but almost every household owns a knife, even if we do not count table knives. Issues involving knife carrying come up quite frequently in state criminal courts, but the legal academy has thus far failed to provide the courts with useful guidance. Persons who are interested in writing on Second Amendment issues, and who wish to make an original contribution, will find that there is plenty to write about.

 

That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction:

In this Article we discuss the synergistic relationship between the “wars” on drugs, guns, alcohol, sex, and gambling and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general “police power” to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex, have encroached on the police powers traditionally reserved to the states. Congress’s infringement of the States’ powers over the “health, safety, welfare, and morals”6 of their citizens occurred slowly, with only intermittent resistance from the courts. In no small part due to this synergistic relationship, today we have a federal government that has become unmoored from its constitutional boundaries and legislates recklessly over the health, safety, welfare, and morals of American citizens.

In part I we discuss how the Taxing Clause was the original conduit for congressional overreach. In part II we analyze the Interstate Commerce Clause’s role in augmenting government power. Part III examines how that overreach has affected citizens’ property rights, and Part IV looks at how civil liberties, particularly Fourth Amendment protections, have been negatively affected by the federal government’s synergistic wars against sex, drugs, gambling, and guns.

This 20-page article is certainly not a comprehensive survey of the synergistic effects of the constitutional damage caused by the federal wars on drugs, guns, alcohol, sex, and gambling. It is a start at a topic that is worthy of much additional scholarly exploration.

On Tuesday, the U.S. Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights will hold a hearing “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.” Senator Dick Durbin (D-Ill.) is Chair of the Subcommittee, and Senator Ted Cruz (R-Texas) is the Ranking Member. The Subcommittee has solicited letters from the public. My letter is below.

—–

Feb. 8, 2013

Dear Senator Cruz:

I am submitting this letter for the Feb. 12, 2013, Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights hearing “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.”

To begin with, the Subcommittee should acknowledge that crime reduction policy has been a great success in the United States in recent decades. For example, in the early 1980s, the U.S. homicide rate was more than 10 per 100,000 population. Today, that rate has fallen by over half, to under 5. This is comparable to the early 1960s. Overall rates of violent crime have also fallen sharply since their peak of several decades ago.[1]

There are many causes for this progress. Perhaps one of them is that today, 41 of the 50 states respect the constitutional right to bear arms, so that a law-abiding adult can obtain a permit to carry a concealed firearm for lawful protection, or even carry without a permit in a few states. In contrast, in the early 1980s, only about half a dozen medium or small states provided a fair system for licensing the carrying of firearms.

Second, the exploitation of the Newtown murders as an occasion to impose a plethora of new anti-gun laws is unwise. Professor Gary Kleck, of Florida State University, is by far the most eminent worldwide scholar on quantitative data about firearms, and the effect of firearms laws. His book Point Blank: Guns and Violence in America was the winner of the Michael J. Hindelang Award of the American Society of Criminology, for “the most outstanding contribution to criminology” in a three-year period.

Kleck’s 2009 article “The worst possible case for gun control: mass shootings in schools” [American Behavioral Scientist 52(10):1447-1464] explains why gun control laws enacted as part of an inchoate desire to “do something” after an atrocious crime such as a mass murder in a school are particularly unlikely to prevent future such crimes. Rather, the “do something” anti-gun laws typically amount to an expression of rage against guns or gun owners, and fail to make children safer.

Regarding some particular proposals that have been raised, as alleged responses to Newtown:

The “assault weapons” issue is one of the most long-standing hoaxes in American politics. The guns suggested for prohibition do not fire faster, nor do they fire more powerful ammunition, than guns which are not singled out for prohibition. External features such as telescoping stocks, or forward grips, make it easier for a user to control the firearm, to shoot it accurately, and to hold it properly. Features which make a firearm more accurate are not a rational basis for prohibition.[2]

Magazines holding more than 10 rounds are not “high capacity.” Semi-automatic handguns constitute over 82% of new handguns manufactured in the United States.[3] A large percentage of them have standard, factory capacity magazines of 11 to 19 rounds. The AR-15 type rifle has for years been the best-selling rifle in the United States. The factory standard magazine for an AR-15 rifle is 30 rounds.

Assertions by some prohibitionists that the aforesaid common guns and common magazines are only made for mass murder are a malicious libel against the millions of peaceable Americans who own these self-defense and sporting tools.

Pursuant to District of Columbia v. Heller, such firearms and magazines may not be prohibited, because they are “typically possessed by law-abiding citizens for lawful purposes.” 554 U.S. 570, 625 (2008). As Heller explained, the Second Amendment prohibits prohibition of “an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose” of self-defense. Id. at 628.

Senator Feinstein’s prohibition bill targets an enormous class of arms. Taking into account the at least 4 million AR-15 rifles, plus everything else, the Feinstein ban would likely apply to at least 10 million firearms.

As for the magazines, the Feinstein ban does not focus solely on genuinely “high capacity,” non-standard magazines (e.g. 75 or 100 rounds) but instead bans common magazines holding 11 or more rounds; the gigantic class of what she would ban probably numbers at least several tens of millions, and perhaps much more.

That in itself is sufficient, according to Heller, to make prohibition unconstitutional.

The conclusion is reinforced by Heller’s observation that handgun prohibition was unconstitutional “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Id. at 628. For substantive rights (as opposed to procedural ones), the two main standards are Strict Scrutiny and Intermediate Scrutiny. The former is for most situations of racial discrimination by government, and for most types of content-based restrictions on speech. The latter is used for government discrimination based on sex, as well as for most “time, place, and manner” regulations of speech in public places.

So we know that handgun prohibition fails Strict Scrutiny and also fails Intermediate Scrutiny. Although formulations of Intermediate Scrutiny vary from case to case, the general approach is that to pass Intermediate Scrutiny, a law must involve “an important government interest” and must “substantially” further that interest.

Now consider Intermediate Scrutiny as applied to handguns. Handguns constitute approximately one-third of the U.S. gun supply. They are used in about half of all homicides.[4]

And yet, a handgun ban fails Intermediate Scrutiny. If a handgun ban fails, then the bans on magazines and on so-called “assault weapons” must also fail.

The large majority of firearms banned by Sen. Feinstein’s bill are rifles. Rifles constitute about a third of the American gun supply. But rifles account for fewer than 3% of U.S. homicides—fewer than blunt objects such as clubs or hammers. The rifles covered by the Feinstein bill would account for even less.

Because handguns (very frequently used in crime) cannot be banned under Intermediate Scrutiny, rifles, or a subset of rifles (rarely used in crime) cannot be banned either.

There are no solid national statistics about the current use of 11+ magazines in crime. Given that 11-19 round magazines are standard for a large fraction of modern handguns, one might guess that 11+ round magazines would be used in some crimes. Even so, such magazines would be used less often in crime than handguns in general. Thus, a magazine ban also fails Intermediate Scrutiny.

It is important to remember that when applying Intermediate Scrutiny to a Second Amendment question, Heller’s methodology (by announcing that a handgun ban fails Intermediate Scrutiny) is that one must not consider solely the criminal uses of an arm. One must also consider the frequency of an arm’s use by “law-abiding citizens for lawful purposes.” The sheer quantity of what Senator Feinstein would ban is itself evidence that the banned firearms and magazines are “typically possessed by law-abiding citizens for lawful purposes.”

Heller makes it clear that some non-prohibitory controls are permissible. Because the Heller case was about a gun ban, the Court did not deeply explore the contours of legitimate non-prohibitory controls. However, the Court has said enough to at least raise questions about the constitutionality of “universal background checks.”

It is often said, by anti-gun lobbyists, that 40% of firearms sales take place today without checks. Notably, the study on which this claim is based was conducted before the National Instant Criminal Background Check System became operational.

Besides that, a great many private transfers of firearms take place between family members, or other persons who have known each other for many years.

More fundamentally, private transfers are not with the proper scope of Congress’s power to regulate “Commerce . . .  among the several States.” Pursuant to federal law since 1968, private sales may only take place intra-state. 18 U.S.C. §922(a). They are not interstate commerce. Nor, indeed, are they necessarily commerce of any sort, no matter how broadly defined, since many such transfers are gifts.

In Printz v. United States (1997), Justice Thomas’s concurring opinion suggested that a mandatory federal check on “purely intrastate sale or possession of firearms” might violate the Second Amendment. 521 U.S. 898, 938 (2007).

This view is supported by the Supreme Court’s opinion in District of Columbia v. Heller. There the Court provided a list of “longstanding” laws which were permissible gun controls. Heller at 626-27. The inclusion of each item on the list, as an exception to the right to keep and bear arms, provides guidance about the scope of the right itself.

Thus, the Court affirmed “prohibitions on the possession of firearms by felons and the mentally ill.” Felons and the mentally are exceptions to the general rule that individual Americans have a right to possess arms. The exception only makes sense if the general rule is valid. After all, if no-one has a right to possess arms, then there is no need for a special rule that felons and the mentally ill may be barred from possessing arms.

The second exception to the right to keep and bear arms is in favor of “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” This exception proves another rule: Americans have a general right to carry firearms. If the Second Amendment only applied to the keeping of arms at home, and not to the bearing of arms in public places, then there would be no need to specify the exception for carrying arms in “sensitive places.”

The third Heller exception is “laws imposing conditions and qualifications on the commercial sale of arms.” The word “commercial” does not appear because the Supreme Court was trying to use extra ink. Once again, the exception proves the rule. The Second Amendment allows “conditions and qualifications” on the commercial sale of arms. The Second Amendment does not allow Congress to impose “conditions and qualifications” on non-commercial transactions.

Federal law has long defined what constitutes “commercial sale” of arms. A person is required to obtain a Federal Firearms License (and become subject to many conditions and qualifications when selling arms) if the person is “engaged in the business” of selling firearms. This means:

a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms;

18 U.S.C. §921(a)(21)(D). Of course a person who is “engaged in the business,” but who does not have a FFL, is guilty of a federal felony every time he sells a firearm. 18 U.S.C. §§922(a), 924.

Currently, the federal NICS law matches the constitutional standard set forth in Heller. NICS applies to all sales by persons who are “engaged in the business” (FFLs) and does not apply to transfers by persons who are not “engaged in the business.”

President Obama has already ordered the Bureau of Alcohol, Tobacco, Firearms and Explosives to inform FFLs about how they can perform a NICS check for private persons who would like such a check. On a voluntary basis, this is legitimate, but it would be constitutionally dubious to mandate it.

Finally, there has been talk of new federal laws against gun trafficking and against straw purchases. Fortunately, gun trafficking and straw purchases are already illegal, and there are many people who have the federal felony convictions to prove it.

Allegedly, federal prosecutors will be more willing to enforce the already-existing bans on trafficking and straw purchases if the laws are restated by enacting new legislation. A simpler approach would be for the President or the Attorney General to order U.S. Attorneys to give greater attention to the enforcement of the existing laws. Moreover, new statutes, especially when drafted in a “do something” crisis atmosphere may turn out to be highly overbroad, and to impose harsh new penalties on persons who were not the intended targets of the new statutes. The poorly-named “USA PATRIOT Act” should provide a cautionary example.

Below are some articles which might be interest to the Subcommittee.

“Guns, Mental Illness and Newtown.” Why random mass shootings have increased and what to do about it. Wall Street Journal. Dec. 17, 2012. http://online.wsj.com/article/SB10001424127887323723104578185271857424036.html.

“Arming the right people can save lives.” Good guys with guns have managed to thwart many mass attacks. Los Angeles Times. Jan. 15, 2013. http://www.latimes.com/news/opinion/commentary/la-oe-kopel-guns-resistance-nra-20130115,0,955405.story.

My U.S. Senate Judiciary Committee testimony on gun violence. Jan. 30, 2013. http://davekopel.org/Testimony-Senate-Judiciary-Kopel-1-30-13.pdf.

“Ronald Reagan’s AR-15.” Volokh.com. Jan. 15, 2013. http://www.volokh.com/2013/01/15/ronald-reagans-ar-15/.

“A Principal and his Gun.” How Vice Principal Joel Myrick used his handgun to stop the school shooter in Pearl, Mississippi. By Wayne Laugesen. Boulder Weekly. Oct. 15, 1999. http://davekopel.org/2A/OthWr/principal&gun.htm.

Pretend “Gun-free” School Zones: A Deadly Legal Fiction. 42 Connecticut Law Review 515 (2009). http://ssrn.com/abstract=1369783.

“Gun-Free Zones.” Wall Street Journal, April 18, 2007. The murders at Virginia Tech University. http://davekopel.org/2A/OpEds/Gun-Free-Zones.htm.

 

Sincerely,

David B. Kopel

Research Director, Independence Institute

Associate Policy Analyst, Cato Institute

Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of Law.

Colorado’s Constitution (Art. X, sect. 20) is the Taxpayer’s Bill of Rights. Like similar provisions in other states, Colorado’s TABOR requires voter approval for tax increases, and for most spending increases that exceed inflation plus population growth. Several state legislators have filed suit in federal court to have TABOR declared unconstitutional. Allegedly, requiring voter approval for tax or spending increases violates Article IV, sect. 4 of the U.S. Constitution, which provides: “The United States shall guarantee to every State a Republican Form of Government. . . .”

In federal district court, the Colorado Attorney General filed a motion to dismiss Kerr v. Hickenlooper, based on the argument that RFOG claims are non-justiciable. That motion was denied, and the case is currently on interlocutory appeal to the 10th Circuit.

On Friday, I filed an amicus brief on behalf of the Independence Institute and the Cato Institute. The brief draws heavily from Rob Natelson’s article, A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause. 80 Texas Law Review 807 (2002). Natelson shows that the Founders consistently used the words “republic” or “republican” to refer to governments which had direct democracy. As the brief summarizes an analysis of every known Founding-Era dictionary: “Not one of these sixteen definitions from nine different Founding-Era definitions contained the least suggestion that a republic had to be purely representative.”

Moreover, the Supreme Court, in Luther v. Borden and Minor v. Happersett, has stated that the admission of a State into the Union is a conclusive determination that the State, at the time of admission, had a Republican Form of Government. Significantly:

In 1907, Congress admitted Oklahoma into the Union, although Oklahoma’s Constitution contained very strong provisions for initiative and referendum (Okla. Const., art. V, §§1-7) and provided for a mandatory referendum before the legislature could incur debt. Id. art. X, §25. Similarly, in 1912, Congress admitted New Mexico with a constitution that specifically contemplated enactment of laws, including fiscal measures, by citizen initiative. N.M. Const., art. XIX, §3.

Opponents of direct democracy rely heavily on a line from James Madison’s Federalist no. 10. They are misreading the document, however. Madison was criticizing pure democracy (no representation, no magistrates). A fuller examination of The Federalist shows that direct democracy was an accepted feature of what was considered to be a “republic.” See Federalists 6, 39, 43, 55, 63.

 

 

A forthcoming issue of the Connecticut Law Review will feature a symposium on an article by Prof. Nicholas Johnson (Fordham) about the changing attitudes of the Black leadership towards firearms. In brief, Black leadership was historically very supportive the right to keep and bear arms, and particularly concerned that Blacks be able to have firearms for defense against white racists. The leadership’s attitude changed quite strongly in the late 1960s, and has remained anti-gun ever since. Johnson suggests that among the explanations for the change is that civil rights successes turned that leadership into powerful participants in the government, rather than outsiders.  Thus, the leadership adopted a more establishmentarian approach.

The symposium will have a variety of articles responding to Johnson. My own article observes that the change in attitude of the Black leadership parallels a change in much of the American Christian leadership about the legitimacy of defensive violence–at both the personal and the national level. For the Christian leadership, opposition to the Vietnam War was the proximate cause, but the change persisted long after the war had ended. Here’s the abstract:

This Article analyzes the changes in orthodox Christian attitudes towards defensive violence.

While the article begins in the 19th century and ends in the 21st, most of the Article is about the 20th century. The article focuses on American Catholicism and on the Vatican, although there is some discussion of American Protestantism.

In the nineteenth and early in the twentieth centuries, the traditional Christian concepts of Just War and of the individual’s duty to use force to defend himself and his family remained uncontroversial, as they had been for centuries. Disillusionment over World War One turned many Catholics and Protestants towards pacifism. Without necessarily adopting pacifism as a theory, they adopted pacifism as a practice. World War Two and the early Cold War ended the pacifist interlude for all but a few radical pacifists.

Beginning in the 1960s, much of the American Catholic leadership, like the leadership of mainline Protestant churches, turned sharply Left. Although churches did not repudiate their teachings on Just War, many Catholic and mainline Protestant leaders seemed unable to find any circumstances under which American or Western force actually was legitimate. Pacifism and anti-Americanism marched hand in hand. Today, pacifism now has greater respectability within orthodox Christianity than any time in the past 1700 years.

Among the influential thinkers profiled in this Article are all Popes from World War II to the present, Dorothy Day and her Catholic Worker Movement, and the Berrigan Brothers. The article suggests that some recent trends in pacifist or quasi-pacifist approaches have been unduly influenced by hostility to the United States, and by the use of narrowly-focused emotion rather than the rigorous analysis that has characterized Catholic philosophy.

 

The first federal statutes governing the Militia of the United States were enacted in 1792.  There were some revisions in 1795. During the Civil War, an amendment removed the language that had restricted federal militia membership to free whites.

The old militia statutes were repealed and replaced by the Militia Act of 1903, 32 Stat. 775, commonly known as the ‘‘Dick Act’’ for its sponsor Representative Charles W.F. Dick, a Major General in the Ohio National Guard.

The Dick Act gave formal federal recognition—and financial support—to the National Guard, which had begun as a volunteer state-based civic organization after the Civil War. According to the Dick Act, the ‘‘organized militia’’ of the United States is the National Guard, plus Naval Militias maintained by some states. 10 U.S.C. §311(b)(1).

The Dick Act also defines the ‘‘unorganized militia.’’ The unorganized militia is all able-bodied men between 17 and 44 years of age who are United States citizens (or ‘‘have made a declaration of intention to become
citizens’’), and who do not belong to the organized militia. 10 U.S.C. §311(a), (b)(2). They are subject to call-up by the federal government in order to ‘‘execute the Laws of the Union, suppress Insurrections [or] repel Invasions,’’ under the Constitution’s Militia Clauses. (Clause 15 of Article I, sect. 8 is the “Calling Forth” clause. Clause 16 grants Congress the power to organize, arm, and discipline the militia.)

The best book on the early history of the National Guard, including the Dick Act, is Jerry M. Cooper, The Rise of the National Guard: The Evolution of the American Militia, 1865-1920 (2002). During the late 19th and early 20th century, the National Guard and the National Rifle Association were very closely intertwined.

The Dick Act has long been a part of the Second Amendment debate in the United States, since the Act plainly shows that Militia is not solely the National Guard.

These days, however, a ridiculous email is being circulated, which claims that the Dick Act absolutely prohibits any form of gun control for men 17-44. Further, the email asserts, preposterously, that the Dick Act is unrepealable, because repeal would violate the Bill of Attainder and Ex Post Facto clauses. David Hardy deconstructs this email over at his excellent blog, Of Arms and the Law. Hardy’s blog is mandatory reading for anyone with a serious interest in firearms law and policy.

Grotesquely wrong emails such as this are, objectively speaking, helpful to gun prohibitionists. To the extent that pro-rights activists mistakenly rely on the email, and use it as the basis for arguments that they send to elected officials in opposition to proposed anti-gun laws, the activists are wasting their time with arguments that are plainly incorrect, and therefore will not be persuasive to elected officials. Further, some readers who fall for this email hoax may imagine themselves immune from vast array of repressive laws which are being pushed in Congress and the state legislatures, some which have already been enacted in New York. As a result, these readers may sit on the sidelines politically, failing to get involved at a time when citizen activism is essential.

In June 1992, retired President Ronald Reagan was presented with some gifts from the American Shooting Sports Council, a trade association for the firearms industry. (ASSC later merged with the National Shooting Sports Foundation, an older industry group.) The gifts were a Colt semi-automatic AR-15 rifle, a gold-engraved Colt Single Action Army .45 revolver, and a beautiful custom holster from Galco. He loved the gifts, and had a great time with them at his Rancho del Cielo. As he explained, many of the guns which he had been given as President were in the Reagan Museum, and he was not allowed to use them. So he was grateful to have some new guns of his own. You can read the whole story here, with lots of photographs, in this PDF from the August 1992 issue of The Alliance Voice, the magazine of the ASSC:  Ronald Reagan’s AR-15.

Saturday, January 19, is Gun Appreciation Day. Americans are urged to “go to your local gun store, gun range, or gun show” and to show their support for Second Amendment rights. The blog Shall Not Be Questioned, which has long been one of the most influential and thoughtful pro-RKBA blogs, endorses Gun Appreciation Day, but raises some important caveats.

In particular, many people imagine “that by going to the gun show, or by buying guns and some ammunition, they were making a statement. Folks, if this belief becomes widespread, we’re going to lose. Communicating with lawmakers is crucial at a time like this.”

If you want to go to a gun store, and pay $3,000 for an AR-15 (assuming you can find one) that would have cost $900 five weeks ago, go ahead. Or if you want to practice gun safety at your local range, while wearing a pro-rights shirt, that’s fine too.

But neither of these actions is going to have much practical effect in protecting the Second Amendment. Far more valuable would be volunteering to help a local organization hand out flyers at a gun show. These days, the lines are literally hours-long just to get into a gun show, so you’ll find plenty of people waiting in line who will be grateful for something to read.

Alternatively, spend a couple hours writing some short letters to your U.S. Senators, U.S. Representative, Governor, State Senator, and State Representative. A printed postal letter is best, because it demonstrates that you took some time to create it. Chapter 15 of my 1993 book Things You Can Do to Defend Your Gun Rights provides tips on writing letters to elected officials.

For your friends who don’t want to write a postal letter, but who might be willing to send an e-mail, the Ruger website provides easy tools to find your legislators and email them. (An admirable change compared to 1989, when Ruger, like a lot of the American firearms industry, was too timid to speak out against the false claim that semiautomatic rifles are “assault weapons.”)

January 19 is an especially propitious day to become a member of the National Rifle Association or another Second Amendment group.

If you want to engage in firearms commerce, there are alternatives to fighting the crowds at gun stores and gun shows. My favorite place to purchase accessories is MidwayUSA, which has an incredibly large variety of tools and supplies. MidwayUSA is also a very generous contributor to Second Amendment groups, and to conservation.

While political participation is very important, the most important long-term factor in the survival of the Second Amendment is the percentage of the population which understands firearms. The mass confiscations of firearms in Great Britain and Australia, which Howard Dean (among others) touts as the model for the United States, never would have taken place if the general public in those countries had even a minimal familiarity with firearms. So take a newbie shooting. I recommend that you introduce them to a .22, at a outdoor range. Ranges may be less crowded on Jan. 20 than on the 19th.

If all you knew about guns was what you learned from MSNBC, or much of the rest of the national media, then you would imagine that the only time that guns are important are when then are used in terrible crimes. But in truth, guns in America are used every day in America in ways that never attract national media attention:  Far over a thousand of times per day (literally) for self-defense. Their presence is so many American homes is the most important reason why burglars attack American homes so much less often then the occupants are present, compared to countries where defensive gun ownership is prevented. They are the last-resort deterrent to genocide, as shown by the fact that every genocide perpetrator in the last century has assiduously disarmed the intended victims first. Besides that, guns are used for target shooting, to put healthy food on the table, and the Pittman-Robertson excise taxes are a prime reason why so much American wildlife is thriving today, having recovered from the dire conditions of the early 20th century.

Appreciate guns on January 19? Definitely. Do so in a way that will help protect the Second Amendment from immediate threats, and will preserve it for the future generations.

I would like to create an Android app and an IOS app for my website, davekopel.org. My requirements are: I want to be able to submit the app to the Google Play and Apple Stores, rather than the app being available solely on a third party website. The app does not have to be highly sophisticated; my website has about a thousand html files, and a lot of pdfs, but (except for my three-column home page) all the html files are single column, without a lot of coding. (I recently figured out how to use CSS.) The app needs to be able to handle typical things such as a Twitter feed, RSS, search, YouTube channel, audio and video links, etc. But nothing fancy; I don’t create Flash for my website.

I’m willing to pay, and would prefer to pay a one-time fee, rather than a perpetual monthly fee. So, in light of all that, what web services do readers recommend for me to build the apps?

Update: To clarify my objectives, in response to comments. Basically, I’m looking for something like the apps created by Reason, Cato, or Daily Caller. To give people simpler access to information about what’s new on the site, and to enable them to navigate the site. I’m not trying to put all the full site content itself into somebody’s cell phone.

I realize that anybody can get the same information just by using their mobile phone browser, and visiting the website directly. All my html pages have the barebones coding to be mobile-friendly:

<meta name=”viewport” content=”width=device-width, initial-scale=1.0, maximum-scale=2.0, user-scalable=yes” />

In my own use of Android, I sometimes find it easier to just use the Reason App, rather than browsing to www.reason.com, in order to see what’s new at Reason, and to possible read an article, or watch a new Reason video. All I’m trying to do is provide similar a similar app for my site.

 

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

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

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

Opponents of LaPierre’s proposal say, wrongly, that armed security at Columbine did no good. At Columbine High School, the attack coincided with the “school resource officer” (a sheriff’s deputy) being off-campus.  The officer returned during the start of the attacks, and fired some long-distance shots at the killers, who were on the school porch. Those shots drove the killers into the school building, and saved the lives of several students who had been wounded. Atrociously, the officer failed to pursue the killers into the building. Dozens of additional officers arrived within minutes, but none of them entered the building either, even though an open 911 line indicated that killings were taking place in the library, while police stood outside, near the library door, just a few feet away. At least 11 of the 13 Columbine deaths could have been prevented if the police had acted promptly. Fortunately, since Columbine, police tactics have changed drastically, to emphasize that whoever is at the scene should immediately and aggressively counter-attack an active shooter. Unlike gangsters or ordinary street thugs, mass killers tend to be weaklings and cowards who crumble quickly at armed resistance.

The limitation of LaPierre’s proposal is that a single guard cannot cover a large building simultaneously, and on a large campus, such as Virginia Tech, campus police may be spread too thin to provide prompt protection.

So LaPierre’s idea ought to be supplemented by the Utah model: if a teacher has (after a fingerprint-based background check, and a safety training class) been issued a permit to carry a concealed handgun throughout the state, there should not be a special exception which prevents the teacher from carrying at her place of employment.

People raise all sorts of speculative objections to this policy. But the Utah experience refutes the speculation. The policy has been in effect for years in Utah, and there have never been any problems caused by armed teachers. Not a single one.

At Utah public colleges and universities, the same law has applied for years, so that school employees, and students who are least 21 years old, can carry lawfully. That has been the rule at Colorado State University since 2003, at almost all other Colorado public institutions of higher education since 2010, at the final hold-out (the University of Colorado) since early 2012, when CU lost 7-0 in the Colorado Supreme Court. Opponents have raised all sorts of hysterical scenarios (e.g., 18-year-olds bringing Kalashnikov rifles to a kegger; students pulling a gun during a heated debate in a literature class), but of course none of these scenarios have come to pass.

The various gun control proposals of President Obama, Mayor Bloomberg, Senator Feinstein, and Rep. McCarthy might or might not be a good ideas in themselves, but even under a best-case scenario, they are not going to instantly and drastically reduce the death toll from mass shootings. Pervasive armed resistance–the abolition of pretend gun-free zones–would have that effect.

To recognize and then eliminate the deadly peril of pretend gun-free zones does not preclude a person from also supporting new gun controls, or improvements in mental health care, or less glamorization of criminal violence by  Hollywood, or whatever else the person thinks could be helpful in in the long run. In the short run, stopping the next Sandy Hook means ending the deadly policy which gave the killer 20 minutes (until people with guns, the police, finally arrived) to fire 150 shots and repeatedly change magazines, murdering at leisure.