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.

Earlier this week I took Steve Benen to task for suggesting that state governments could not refuse to enforce federal laws.  Benen had suggested that such decisions were tantamount to nullification. (A claim he has walked back, to his credit.)  While Benen’s outrage was a bit misplaced in the post I critiqued, it’s not as if his concerns about nullification are unwarranted.  Some state legislators are engaged in efforts to nullify federal law.

Perhaps the latest example is this bill, which recently passed the Missouri legislature.  After reciting the importance of the Second Amendment and declaring that state officials cannot enforce federal gun laws, it goes on to make it a misdemeanor for a federal official to enforce federal law within the state.  This is an attempt at nullification, and it’s completely unconstitutional.  States may retain the right to refuse to assist the federal government, but states do not have the right to obstruct (let alone criminalize) federal enforcement efforts (nor do they have the power to authorize civil causes of action against federal officials who are enforcing federal law, as this bill does).

The most that could be said in the bill’s defense is that it only purports to nullify those federal statutes that violate the Second Amendment (though it does list some specific laws and potential restrictions as presumptively violative of the Second Amendment).  So, if federal courts uphold federal gun laws as consistent with the Second Amendment, then this statute would not constrain federal enforcement of such laws (provided that Missouri courts don’t interpret the Missouri Constitution to offer greater protection to gun rights within the state).  Barring this sort of  interpretation, the law would still have no effect, as the criminal provisions of the law would be wholly unenforceable, even in state courts (which are required to respect and give effect to federal law under the Supremacy Clause).  So even under the most charitable interpretation, that law is only symbolic.  But if all state legislators want to do is express their objection to federal law with symbolic legislation, then they should just pass symbolic resolutions, and dispense with efforts to criminalize or other sanction federal officials’ enforcement of federal law.  I’m all for state legislators expressing their disapproval of federal policy, but empty nullification threats are not a productive way to express such views.

The Warren County (Illinois) Housing Authority had banned gun possession by tenants, even in their own apartments. The Second Amendment Foundation sued on Second Amendment grounds, and the Authority agreed to repeal the ban; the repeal apparently took effect December 1, but I just learned about this today, when the District Court released its opinion largely approving the settlement.

For much more on the Second Amendment and public housing, see this earlier post (and, for still more, this one).

The Fifth Circuit has voted 8-7 not to rehear NRA v. BATF en banc. The panel decision upholds the federal ban on handgun sales by federal firearms licensees to 18-to-20-year-olds; the dissent disagrees. Such a close division on a court of appeals makes it more likely that the Supreme Court will agree to hear the case, though the odds are probably still against it, given the absence of a split among lower courts.

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.

So holds a federal district court in northern Illinois, in Kole v. Village of Norridge (N.D. Ill. Apr. 19, 2013):

Although the Supreme Court [in Heller] explained that laws regulating the commercial sale of firearms are “presumptively lawful,” it did not purport to exempt those laws from constitutional scrutiny.... The Seventh Circuit’s analysis in United States v. Williams, 616 F.3d 685 (7th Cir. 2010), is particularly instructive. Williams involved 18 U.S.C. § 922(g)(1)’s ban on the possession of firearms by felons—one of the other “presumptively lawful” regulatory measures specifically identified in Heller. Nonetheless, the Seventh Circuit explained that “the government does not get a free pass”; “it still must prove that the ban is constitutional, a mandate that flows from Heller itself”; and “putting the government through its paces in proving the constitutionality of § 922(g)(1) is only proper.” The Seventh Circuit ultimately applied a form of intermediate scrutiny and upheld § 922(g)(1).

[Footnote: Similarly, before the Ninth Circuit agreed to rehear Nordyke v. King en banc, the panel opinion explained that:

We believe it most unlikely that, in a one-sentence footnote, the Supreme Court would undermine the rest of its analysis by declaring, inter alia, that all gun sales regulations, no matter how burdensome, should receive the rubber stamp of rational basis review. Instead, we read "presumptively lawful regulations" to mean "regulations which we presume will survive constitutional scrutiny," and to say nothing about what standard of review should be applied to them.]

[I]n any event, at least with respect to the Revised Ordinance, the Village is seemingly doing more than just “imposing conditions and qualifications on the commercial sale of arms” — it is trying to ban gun stores outright....

Continue reading ‘Second Amendment Challenge to Gun Dealer Ban in Chicago Suburb Can Go Forward’ »

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.

One other thought about Sen. Chris Murphy’s request that Fox News cancel plans to broadcast the NRA 500 NASCAR race — one of Sen. Murphy’s complaints is that

The race not only brings national attention to an organization that has been the face of one side of this heated debate, it also features the live shooting of guns at the end of the race.

Now many gun control supporters, as I understand it, have argued that they aren’t trying to do culture war, or to suppress the use of guns for sporting purposes. (Most have even argued that they aren’t trying to generally ban the use of guns for self-defense.) But what then is wrong with “the live shooting of guns” on a television broadcast? These aren’t guns being shot by criminals, or by drunken New Year’s Eve revelers, or even in self-defense. Presumably the guns are being shot legally and safely, just as one might shoot guns legally and safely at a shooting range.

Indeed, many gun control supporters often argue that they want gun owners to be better trained. And tens of millions of gun owners indeed go to shooting ranges each year to engage in “live shooting of guns.” Why is it so bad for a television program to depict this? Or is gun shooting like sex — OK if you do it in private, but we can’t stand for its being done in public?

I think the import of Sen. Murphy’s message is pretty clear: He thinks gun ownership isn’t just something that needs to be covered by “reasonable policies to stem gun violence” (which is what his letter later calls for). Rather, it seems to be something that he sees as fundamentally illegitimate or at least declasse — perhaps like smoking or vulgarity — no matter how safe or legal the gun use might be. I hope that gun owners, including Connecticut gun owners, keep that in mind.

The answer to this question is pretty much 1986 (whether that’s a matter of “courage” or not), when automatic weapons — i.e., machineguns — were largely banned. There is an exception for pre-1986 automatic weapons, of which there are relatively few, since they have been heavily taxed since the 1930s. As a result, automatic weapons are very expensive, hard to get legally, and banned outright in many jurisdictions. Those grandfathered weapons are almost never used in violent crime.

So when Sen. Chris Murphy writes the following to Rupert Murdoch, he’s not being quite on the level:

Shortly after the tragedy in Newtown, you called on policymakers and the President to strengthen our gun laws, asking, “when will politicians find courage to ban automatic weapons?” This valid question will be answered when the Senate considers major reforms to our gun laws in early to mid-April. As a senator, I can tell you that many of us possess the courage, and will strongly advocate for sensible gun reforms to take assault weapons and high-capacity magazines off our streets and require all gun purchasers to submit for a background check.

So-called “assault weapons” are not automatic weapons — weapons that very rapidly fire dozens of rounds with one trigger pull, which is what I think people likely understand “automatic weapon” to mean: “a firearm that reloads itself and keeps firing until the trigger is released.” Rather, they are semiautomatic weapons, much like the many semiautomatic handguns and rifles that “assault weapons” bans don’t purport to cover.

Now I realize that “automatic” is sometimes used as a synonym for “semiautomatic” when it comes to handguns, though I don’t think “automatic weapon” is generally used this way. But if that’s so, then that would mean that Mr. Murdoch and, apparently, Sen. Murphy are endorsing for a ban on all semiautomatic weapons, which account for probably about half or more of the guns owned by Americans. Can that be true? And if it isn’t, then this supports my view that such calls either reflect a confusion on the part of those who are making the argument, or a desire to exploit confusing on the part of the audience, and make them think that “assault weapons bans” are attempts to ban machineguns.

Here’s the letter, from Senator Chris Murphy (of Connecticut):

Dear Mr. Murdoch:

I write today to urge you to not broadcast NASCAR’s NRA 500 at Texas Motor Speedway on April 13th. This race, which is being sponsored by the National Rifle Association (NRA), is going to take place during the Senate’s consideration of legislation to reduce gun violence. The race not only brings national attention to an organization that has been the face of one side of this heated debate, it also features the live shooting of guns at the end of the race. This celebration of guns is inappropriate in the immediate wake of the Newtown massacre. But most importantly, broadcasting this race, which will highlight the NRA and its radical agenda during this time, sends a harmful signal to the families affected by gun violence, as well as the millions of Americans who support sensible gun control measures and enjoy your sports programming.

The horror that unfolded on December 14th at Sandy Hook Elementary School has sparked a national conversation about the adequacy of our gun laws. You, News Corporation and its subsidiaries, including Fox News, should contribute and continue to cover this discussion. Given that you have been outspoken in your support of gun reform, it is the height of irony that some would perceive that your company would now essentially endorse the NRA’s extreme position against such laws by broadcasting this event.

Shortly after the tragedy in Newtown, you called on policymakers and the President to strengthen our gun laws, asking, “when will politicians find courage to ban automatic weapons?” This valid question will be answered when the Senate considers major reforms to our gun laws in early to mid-April. As a senator, I can tell you that many of us possess the courage, and will strongly advocate for sensible gun reforms to take assault weapons and high-capacity magazines off our streets and require all gun purchasers to submit for a background check.

You also challenged President Obama to show bold leadership on this issue after he addressed the nation. I believe that the President has shown incredible leadership since the tragedy by trying to help our country, my state, and the community of Newtown heal in the wake of this terrible event. I would like to make a similar challenge to you. You should play a constructive role in our national dialogue by refraining from broadcasting the NRA 500. By airing this race you will be strengthening the brand of a radical organization that is currently standing in the way of meaningful progress on this issue. Today’s NRA bears little resemblance to the one of its founding. It stokes fear and perpetuates a perverse interpretation of the Second Amendment in order to sell more guns and fuel larger donations from gun manufacturers. After the events of Newtown, Aurora, Oak Creek, and so many other senseless tragedies, the NRA continues to say that the only solution to gun violence is more guns. It even disavows common sense measures, like universal background checks for gun purchases — a policy that enjoys the support of 74 percent of its members and that it advocated for in 1999.

Considering your support of sane gun control measures and the extreme nature of the NRA, I urge you to not broadcast this race on April 13th. Inserting Fox Sports in this debate at this critical time will give credence to an extreme organization that is opposed to reasonable policies to stem gun violence. Thank you in advance for your consideration.

The Senator of course has a First Amendment right to say this sort of thing. But it seems to me a pretty inappropriate request nonetheless.

The Senator is on one side of the debate; the NRA is on the other. All the labeling of the NRA as “extreme” can’t change the reality that it’s a major player in the political debate, with broad public support. A Jan. 30 to Feb. 4, 2013 Quinnipiac poll, for instance, reports that, when asked, “Who do you think better reflects your views on guns: President Obama or the National Rifle Association?,” 43% said President Obama and 46% said the NRA.

Of course the Senator ought to argue against the NRA, and of course if pro-gun-control groups want to put on sporting events as a way of conveying their message, they should do so. But to urge a broadcaster to cancel its plans to convey an NRA-promoting event is a call for suppressing speech, not for promoting more speech. This is not, it seems to me, how Senators in our democratic republic should be behaving.

I’ve seen a good deal said about this survey, and in particular about the view of 95.7% of the 15,000 respondents that “a federal ban on manufacture and sale of ammunition magazines that hold more than 10 rounds would [not] reduce violent crime.” But while I’m inclined to agree with the policy views of the respondents, I don’t think one can rely on the survey as an accurate gauge of police officer sentiment.

The survey states,

More than 15,000 officers completed the survey, which was promoted by PoliceOne exclusively to its 400,000 registered members, comprised of verified law enforcement professionals. Only current, former or retired law enforcement personnel were eligible to participate in the survey. The survey sample size was broadly distributed by geography and rank in proportion to the U.S. law enforcement community at large.

Thus, the survey measures the view of the 4% of PoliceOne members who chose to answer the survey. There’s no reason to think that these views reflect the views of all PoliceOne members. If the survey selected a random sample of members, then one could infer from that random sample (even a sample as small as 1,000 respondents) to the views of the group at large, subject to a statistical margin of error. If the survey selected a random sample of members and, say, 60% of them responded, one could still infer pretty well what the group as a whole thinks.

But when only 4% of the people who are asked respond, that gives you the views of those 4%, and in a way that tells you little about the views of the remaining 96%. (Indeed, as I understand it, social scientists are generally extremely skeptical of any surveys with that low a response rate.) Even if the 4% are representative of PoliceOne members geographically and by rank, there’s no reason to think that they are representative of the members by viewpoint.

It might be, for instance, that pro-gun-rights police officers are more energized and are more interested in responding. And in the Internet age, it’s possible that there were online “get out the vote” campaigns (I’ve often seen plenty of those, for instance, when a newspaper runs an online poll of readers on gun-related topics). If when the survey was sent out, people posted about it on blogs and discussion lists frequented by pro-gun-rights police officers, that would make it likely that the response would be disproportionately pro-gun-rights. We don’t know, of course — but we certainly have no reason to think that the 4% who chose to respond have the same views as the 96% who didn’t.

As I mentioned, I have no quarrel with the views of those PoliceOne members who responded. I just see no basis for assuming that police officers generally, or even PoliceOne members generally, share those views.

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.

In November 2012, Louisiana voters strengthened the Louisiana Constitution’s right to bear arms provision, to read

The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.

Today, Louisiana Judge Darryl A. Derbigny, in State v. Draughter (La. Crim. Dist. Ct. Mar. 21, 2012), held that the Louisiana ban on felon possession of guns violates this provision. The analysis was brief:

Under the strict scrutiny standard, government action is not presumed to be constitutional, and will not be upheld by [a] Court unelss shown to be necessarily related to a compelling state interest.... After applying the strict scrutiny standard to [the statute], this Court concludes that the statute is not narrowly tailored to achieve the government’s interest. [The statute] applies without discretion to nearly every felony crime enumerated in the Louisiana Criminal Code. As such, the statute, ‘as-is’, is unconstitutional in its entirety.

I assume the government will appeal, and Louisiana appellate courts will consider the issue. Note that the federal ban on possession of guns by felons remains in effect — federal law is governed only by the Second Amendment and not by state constitutional provisions, and D.C. v. Heller stated that felon in possession bans generally don’t violate the Second Amendment. Federal prosecutors could thus prosecute felons possessing guns in Louisiana even if the decision as to the Louisiana law is affirmed.

The case is Woollard v. Gallagher (4th Cir. Mar. 21, 2013).

UPDATE: The court claims that it’s not deciding whether the Second Amendment right to keep and bear arms in self-defense extends to carrying a gun outside the home. Rather, the court concludes that, even if such a right exists, Maryland’s licensing scheme — which requires a “good and substantial” reason for a license to carry and which doesn’t treat a general desire for self-defense as an adequate reason — passes intermediate scrutiny.

But it seems to me that means the court is thereby deciding that the right to keep and bear arms doesn’t extend to carrying outside the home for self-defense. If a court lets the government deny the ability to carry guns outside the home for self-defense to nearly everybody, the court is in essence saying there is no such right to carry.

A constitutional right that can be trumped in some of its applications under intermediate scrutiny (or for that matter strict scrutiny) is a right, albeit a qualified one; consider, for instance, the right to engage in commercial speech, or the right to be free of sex discrimination. But a constitutional right that can be trumped in nearly all its applications, under whatever level of scrutiny, is not really a right.

This also reflects, I think, the fact that intermediate scrutiny (which requires that “the legislature’s policy choice substantially serves a significant governmental interest”), coupled with deference to the legislature’s factual judgments (“[i]t is the legislature’s job, not ours, to weigh conflicting evidence and make policy judgments”), essentially means per se validation of pretty much all gun controls that will be tested under such scrutiny. The legislature will always be able to assert a significant governmental interest in preventing crime, reducing the use of police resources, and so on, and will nearly always be able to plausibly argue that it has “weigh[ed] conflicting evidence” in concluding that the law “substantially serves” the interest. (Intermediate scrutiny without deference to legislative weighing of evidence might offer more protection, but that’s not the intermediate scrutiny being applied in this case.) Indeed, the same might even apply to strict scrutiny, except that courts might be more reluctant to read strict scrutiny as essentially eviscerating the right than they are as to intermediate scrutiny (and courts might be more inclined not to defer to legislative conclusions about facts under strict scrutiny).

I discuss this issue in more detail in my Implementing the Right to Keep and Bear Arms in Self-Defense article (pp. 1464-70). But the main point is that verbal distinctions such as significant governmental interest (intermediate scrutiny) vs. compelling governmental interest (strict scrutiny) or even substantially serves (intermediate scrutiny) vs. narrowly tailored (strict scrutiny) are unlikely to make much of a difference. What is likely to make a difference is (1) the degree to which courts do or do not defer to legislative evaluation of the facts, and (2) the degree to which courts say that a core aspect of a constitutional right must be protected regardless of legislative or even judicial judgments about the supposed harm that the right causes. (See pp. 1464-64 for more on that.)