The Volokh Conspiracy

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.

In an article today for National Review Online, I detail how “Broadly supported post-Columbine reforms balance gun rights and gun control”:

After the Columbine High School murders, Colorado enacted eight specific gun-law reforms. Three of these reforms are examples of what people usually call “gun control,” and five of them are in the “gun rights” category. But to many Coloradoans, all eight of the measures are cohesive and consistent. They are all based on the same principles: Guns in the wrong hands are very dangerous, and guns in the right hands protect public safety. Colorado strengthened its laws to make it harder for the wrong people to acquire guns and simultaneously strengthened laws to remove obstacles to the use and carrying of firearms by law-abiding citizens. As a whole, the laws embody a compromise that enjoys broad public support; they settled a gun-policy debate that had raged in Colorado for 15 years. The Colorado consensus has already saved lives.

For those of who have been waiting for an English translation of Russia’s arms statutes, your wait is over. Independence Institute intern Margot van Loon is the author of the new Issue Paper, Weapons Laws of the Russian Federation. Here is a synopsis:

• No permission or registration is needed to purchase and carry chemical defense weapons (e.g., tear gas guns) or electric defense devices such as stun guns.
• Citizens have the right to acquire shotguns for self-defense and sport.
• After five years of lawful ownership of a shotgun, a citizen may obtain a permit to purchase and use rifles for sporting purposes.
• An individual may own up to five rifles and five shotguns.
• Handguns are prohibited.
• All firearms must be registered.
• Before obtaining one’s first firearm, one must receive instruction in firearms laws and safety. Every five years, the firearms owner must pass a test demonstrating continuing knowledge of these subjects.
• The first-time owner must also obtain a medical certification that he or she does not have any disqualifying conditions, such as mental illness or alcoholism.
• In order to use a firearm for lawful self-defense, the crime victim must first attempt to give the criminal a warning, if practicable. Defensive use of firearms against women, the disabled, and minors is prohibited, unless they are attacking as part of a gang.

On the whole, the Russian Federation’s arms laws show considerably greater respect for the fundamental human right of self-defense than do the laws of some other European nations, such as the United Kingdom or Luxembourg.

The Russian Federation paper is part of continuing series of research papers from the Independence Institute providing full English translations of the arms laws of other nations. Other papers in this series are:

Colombia’s National Law of Firearms and Explosives. Full translation of the Colombian statutes, along with historical and narrative explanation. By Jonathan Edward Shaw.

Hungarian Weapons Law of May 2004. English translation and explanation, plus Hungarian text. By Crecy Azincourt.

Mexico’s Federal Laws on Firearms and Explosives.  By David Kopel.

If you would be interested in writing a paper for this series, please contact me using the information at the bottom of this page.

This is the subject of my article in a forthcoming symposium issue of the Fordham Urban Law Journal. The article details the political, cultural, social, and legal battles over gun control from the 1920s to the early 21st century. Here’s the abstract:

A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association began to get involved in politics, and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the 20th century, and into the 21st.

Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, at most, allowed as a very limited privilege. Another side asserted that the right to arms was absolute, and that any gun control laws were infringements of that right.

By the time that Heller and McDonald came to the Supreme Court, the battles had mostly been resolved; the Supreme Court did not break new ground, but instead reinforced what had become the American consensus: the Second Amendment right to keep and bear arms, especially for self-defense, is a fundamental individual right. That right, however, is not absolute. There are some gun control laws which do not violate the right, particularly laws which aim to keep guns out of the hands of people who have proven themselves to be dangerous.

In the post-Heller world, as in the post-Brown v. Board world, a key role of the courts will be to enforce federal constitutional rights against some local or state jurisdictions whose extreme laws make them outliers from the national consensus.

Also recently published in SSRN is a very good draft article by David Hardy, analyzing the four opinions in McDonald v. Chicago. As he persuasively shows, the arguments by Justice Stevens and Breyer against enforcing the Right to Keep and Bear Arms against the states would, if taken seriously, cast serious doubt on the legitimacy of enforcing against the states almost everything else in the Bill of Rights.

The first law school textbook on the Second Amendment is now available from Aspen Publishers. The co-author are Nick Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me. Here’s the publisher’s page for the textbook, from which professors can request a free review copy. The book is also available for civilian purchase from Amazon.

We also have our own website for the book. There, you can read the detailed Table of Contents, and the Preface. The website is in an early stage of development; eventually, it will include detailed research guides and topic suggestions for students who are writing seminar papers. If you a professor and one of your students writes a seminar paper which makes a genuine contribution to knowledge about a topic, we invite you to send the us paper for publication on the website.

The textbook will have an accompanying Teacher’s Manual. We are currently finishing that up, and aim to have it available before the Fourth of July. (It’s free for professors who get a review copy, and forbidden for anyone else.)

Besides the 11 chapters in 1,008 pages of the printed book, there will also be four more on-line only chapters, available to purchasers of the printed book. These chapters will be: 12, Social science about firearms policy. 13, International law. 14, Comparative law. 15, A detailed explanation of firearms and their function. (Chapter 1 of the printed book provides a brief explanation of firearms and their function; the on-line chapter will go into much greater detail [e.g., what is a lever action gun?], and will have illustrations and photos.)

Finally, Firearms Law is the first law school textbook to be the subject of a podcast series. The published podcasts are: Chapter 3, The Colonies and the Revolution. Chapter 2, Antecedents of the Second Amendment: From Confucius to the British Whigs. Chapter 1, An introduction to firearms laws and firearms function. As the summer progresses, we will be adding more, and some chapters may have more than one. Thus far, all the podcasts are interviews of me, but as we make our way through the book, other co-authors will also appear in the podcasts.

Yesterday the Canadian Senate voted 50-27 to abolish the long gun registry. Bill C-19 received unanimous support from Conservative Senators, and some support from Liberals. The bill had previously passed the House of Commons. It became the law of the land today, with the Royal Assent of Canada’s Governor-General.

The bill does not change Canada’s registration system for handguns, which has been in effect since the 1930s. Nor does it change the registration system for certain long guns which have been classified as “prohibited” or “restricted” weapons. Likewise unchanged is Canada’s complicated and burdensome system for licensing gun owners, which was created by a Liberal government in the 1990s.

The registration changes, however, are monumental. Registration records for seven million ordinary long guns are to be destroyed. The government of Quebec has announced that it while file suit to attempt to obtain custody of the 1.5 million registration records pertaining to citizens of Quebec.

Ever since the regime of Prime Minister Pierre Trudeau in the 1970s, gun control in Canada has been primarily a culture war campaign against the “masculine” values of rural Canada, and as a means of demonstrating the dominance of Canada’s urban New Class.

To this day, the foremost public justification for all forms of gun control is Gamil Rodrigue Gharbi (who changed his name Marc Lépine). Gharbi/Lépine was the son of an alcoholic, wife-beating, child abuser who had immigrated to Canada from Algeria. In 1989, he murdered 14 women (13 by gunshot, one by stabbing), and wounded 8 women and 4 men in the engineering building of a school affiliated with the University of Montreal. An incompetent response by police dispatchers to the 911 calls gave Gharbi/Lépine the opportunity to murder at leisure.

In The Montreal Massacre (gynergy books, 1991), Quebec feminists describe their outrage, and demanded the rehabilitation of masculinity, whose (allegedly) misogynist pro-death culture is based on aggressive sports, violent entertainment, and the penetration of women during sexual intercourse.

Canada’s leading public proponent of gun control, Prof. Wendy Cukier, had previously proclaimed that in Canada, gun control is a one-way street; once restrictions are imposed, they are never lifted. This was never entirely accurate; popular demand forced the removal of some long gun restrictions that had been imposed during the World Wars. But the removal of a major peacetime anti-gun law truly does signal a new era in Canadian right to arms politics.

Efforts to repeal the long gun registry lasted 17 years, and they finally succeeded in part because the majority of Canadians have concluded that the registry was a colossal waste of money,  of no value in crime control, and a pointless invasion of privacy.

Globally speaking, the repeal of the registry is the most important gun policy event of the last year. As the United Nations works towards a final draft of an Arms Trade Treaty this year, the Canadian public’s rejection of registry adds to the challenges of the global gun control organizations which want the Treaty to include gun registration requirements.

An article in Forbes profiles Saskatchewan MP Garry Breitkreuz, whose tireless work was essential to the repeal.  Breitkreuz, incidentally, had started out as a supporter of registration, and changed his mind after studying the evidence about whether it would help reduce crime. Kudos also to the Canadian Sport Shooting Association, to Canada’s National Firearms Association, and especially to the late David Tomlinson, who passed away in 2007, and who for over three decades was the Founding Father and leader of Canada’s right to arms movement.

Canadian gun owners know that much more needs to be done to undo the damage caused the kulturkampf which Trudeau began, and which has burdened Canadians with laws that do nothing to enhance public safety, but whose purpose and effect is to harass and persecute law-abiding gun owners. Bill C-19 is a good first step, and a monumental one.

Today the U.S Court of Appeals for the D.C. Circuit released a divided opinion in Heller v. D.C. . In this case, Dick Heller (of the Supreme Court’s Heller decision) is challenging the Firearms Registration Amendment Act of 2008 (FRA), a statute adopted by the District of Columbia in response to the Supreme Court’s decision invalidating the District’s prior gun controls. Whereas Heller had prevailed in the D.C. Circuit before, this time he was not so lucky. The panel majority, consisting of Judges Ginsburg and Henderson, largely rejected his challenge to D.C.’s ban on some semi-automatic rifles and new gun-registration requirements. Judge Kavanaugh wrote a lengthy dissent.

Reichskristallnacht was 72 years ago. Stephen Halbrook’s 2009 article in the St. Thomas Law Review details the close connection between the disarmament of the German Jews and what came next. From the conclusion:

Over a period of several weeks in October and November 1938, the Nazi government disarmed the German Jewish population. The process was carried out both by following a combination of legal forms enacted by the Weimar Republic and by sheer lawless violence. The Nazi hierarchy could now more comfortably deal with the Jewish question without fear of armed resistance by the victims.

It may be tempting to argue that the possession of firearms by the German Jews would have made no difference, either in the 1938 pogrom or later in the Holocaust, when the majority were deported and then eradicated in death camps. Yet this fatalistic view ignores that the Nazis themselves viewed armed Jews as sufficiently dangerous to their policies to place great emphasis on the need to disarm all Jews. In 1938, it was by no means certain that Jewish armed resistance movements could not develop, and even less certain that individual Jews would not use arms to resist arrest, deportation, or attacks by the Nazis.
...
Consistent adherents of a “Never Again!” policy – which assumes that what has happened in history, could again happen – would seek policies to help ensure that it does not indeed occur again.

That brings us back to Alfred Flatow. [The article provides a case study of Flatow, a Jewish veteran of the German army, who competed for Germany in the 1896 Olympics.] What if he – and an unknown number of other Germans, Jews and non-Jews alike – had not registered his firearms in 1932? Or if the Weimar Republic had not decreed firearm registration at all? What if the Nazis, when they took power in 1933 and disarmed social democrats and other political enemies, or when they decided to repress the entire Jewish population in 1938, did not have police records of registered firearm owners? Can it be said with certainty that no one, either individually or in groups small or large, would have resisted Nazi depredations?

One wonders what thoughts may have occurred to Alfred Flatow in 1942 when he was dying of starvation at the Theresienstadt concentration camp. Perhaps memories of the 1896 Olympics and of a better Germany flashed before his eyes. Did he have second thoughts, maybe repeated many times before, on whether he should have registered his revolver and two pocket pistols in 1932 as decreed by the Weimar Republic? Or whether he should have obediently surrendered them at a Berlin police station in 1938 as ordered by Nazi decree, only to be taken into Gestapo custody? We will never know, but it is difficult to imagine that he had no regrets.

An official with Puerto Rico’s Justice Department has announced that the Department will propose changes in the island’s firearms laws, to bring them into line with Heller and McDonald. However, two of the proposed changes appear to be unconstitutional:

Torres said the measures will include a requirement that shooting ranges keep logs of how much ammunition their members use and cap the number of bullets each client can fire in target practice at 500 per year....

The House legislation under analysis would require gun clubs to maintain logs that include information relative to the quantity and caliber of the ammunition that shooters use onsite. It would revoke licenses from any such business that does not comply with the legislation....

The measure will also limit the quantity of weapons that a person can possess to take to a gun club.

The round-by-round registration requirement would be enormously burdensome to shooting ranges, and beyond the practical ability of many clubs to implement. The ban on target practice (beyond 500 rounds per year) is contrary to public safety; firearms owners should be encouraged to practice with their firearms, so that they will be more skilled in using them for self-defense, hunting, or any lawful purpose. While courses to achieve basic competence may only involve firing a few dozen rounds, more advanced courses, which might take several days, can easily exceed 500 rounds per person. Moreover, going the range on one’s own once a month, and firing, say 100 rounds at each practice session, is a good way to improve one’s abilities.

The First Amendment equivalent would be a limit on hour many hours a year a person could spend reading at a private library.  

A similar issue is being litigated in Chicago, where a new law mandates that gun owners have safety training, including range time, but prohibits the operation of shooting ranges within the city–even though indoor ranges are well-established and safe throughought the rest of the nation, including in New York City.

I will be discussing the Puerto Rico proposal at 11:20 p.m. ET tonight on NRA News.

Just published on-line this morning is the above Backgrounder from the Heritage Foundation. My coauthors are Theodore Bromund  and Ray Walser, of Heritage. We argue that the CIFTA gun control convention, which was drafted by the Organization of American States, and which President Obama has urged the Senate to ratify, would harm First and Second Amendment rights. We suggest that the convention offers no practical benefits to the United States.

Does much more than just impose background checks small-scale vendors at gun shows. Details here, in this article I wrote for the Saturday Denver Post.

Before District of Columbia v. Heller, the 1939 decision United States v. Miller was the Supreme Court’s leading decision on the Second Amendment. Miller was, to put it mildly, obliquely written. As Michael O’Shea has detailed, the opinion seems mainly concerned with whether the gun in question was a militia-type weapon, which would suggest that the decision is congruent with a well-established line of state right to arms cases (some of which were cited in Miller) that all persons had a right to arms, but that the right only encompasses militia-type arms (and not, therefore, Bowie knives or other arms associated with disreputable brawlers). However, Miller is not clearly written, and over the subsequent seven decades, there was much dispute about its meaning. The disputes were almost inevitable, in that Miller is terse and oblique, and, except for a history of the early American militia, provides almost no explication or analysis.

At the oral argument in Heller, Justice Kennedy noted that Miller “kind of ends abruptly.” In the Heller decision, the Court observed that Miller was “virtually unreasoned.” Many scholars have wondered what Justice McReynolds was trying to do by writing such an opinion.

The Heller Court pointed out that many lower courts had “overread” Miller. A recent post on the Legal History Blog provides some evidence that legal scholars may also have overread Miller, for Miller may not have been written to mean much at all, other than perfunctorily upholding the National Firearms Act against a facial challenge. The post highlights Barry Cushman’s 2003 University of Chicago Law Review article Clerking for Scrooge. Cushman’s article reviews the 2002 book The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR’s Washington.

Since high school, John Knox had been star-struck by the Supreme Court Justices, attempting to strike up correspondences with them, sending them birthday greetings, and so on. After graduating from Harvard Law School, Knox landed a clerkship with Justice James McReynolds for the 1936-37 term. McReynolds preferred to work out of his D.C. apartment, rather than in the Supreme Court’s then-new building. Knox’s role was secretarial. Knox later wrote: “I appreciated his anti-New Deal view and agreed with it, but that was the only thing I could possibly agree with him on. He was selfish to an extreme, vindictive, almost sadistically inclined at times, inconceivably narrow, temperamental, and heaven knows what. All of his employees lived in a reign of terror and were crushed under foot without any hesitation on his part.”

More relevantly for Miller, McReynolds “found great difficulty in expressing himself in writing and, sadly enough, was genuinely lazy.” In the September of the clerkship, Knox had dinner at the home of Mr. and Mrs. Edward Everett Gann. The Ganns were well-connected in Washington; Mrs. Dolly Gann was the sister of Herbert Hoover’s Vice-President, Charles Curtis (1929-33). Mr. Gann was a friend of McReynolds, and accidentally caught McReynolds in a tryst with a woman. Knox recalled Gann’s words: “I concluded finally that he is not really interested in the work of the Court any more. He’s old, evidently bored with life and would probably retire now if he could do so without letting other conservatives on the Court ‘down.’”

While McReynolds was remarkably even-tempered when President Roosevelt announced his Court-packing plan in 1937,

McReynolds appears to have been equally if not more greatly irritated by the amount of work he had to do in the spring of 1937. One of McReynolds’s defining characteristics, on Knox’s account, was sloth. . . . Nor was Knox impressed with the amount of time McReynolds put into the preparation of those opinions he actually did write. The first opinion of the term went through only two drafts, and McReynolds spent only about three and one-half hours working on it, including the hour he had spent studying the briefs of the case before he had begun his dictation. He devoted only slightly more time to his second opinion. Laboring over opinions in a “scholarly” manner was apparently not Mac’s style.

McReynolds was upset when he was assigned the dissent in an important labor law case (Anniston Manufacturing Co v Davis), which he knew would have to be long. His dawdling delayed the release of the opinion, eventually leading the other dissenters to come to his apartment to try to help him get the opinion done. McReynolds finally decided “he was going to employ the ‘paste and shears’ method, quoting verbatim from lower court opinions excerpted in the briefs rather than composing his own prose.”

Now United States v. Miller becomes easier to understand. All eight Justices (Douglas, then new to the Court, did not participate) have voted in conference to uphold the statute. The lower court opinion is a mere conclusory assertion. Miller’s attorney did not even brief or argue the case, but instead told the Court to rely on the Department of Justice brief. (We now know that the district court judge, the local U.S. Attorney, and, perhaps, the defense attorney, were colluding in order to bring the weakest possible case to the Supreme Court, in order to affirm the National Firearms Act.)

So imagine you’re Chief Justice Hughes. Given that you have to assign McReynolds a majority opinion from time to time, Miller is the perfect case. The Court is unanimous, meaning that McReynolds will not be burdened with responding to dissenting arguments. Indeed, since the case is uncontested, writing the majority opinion would be especially easy. McReynold’s product in Miller was consistent with his lazy and slapdash approach. Perhaps the other Justices, while recognizing that there was room for improvement in the opinion, decided not to press McReynolds for changes, lest McReynolds fail to get around to making any revisions, and thereby further delay the progress of the Court’s business.

All of the opinion-writing Justices in District of Columbia v. Heller took their work much more seriously than McReynolds apparently took his work in Miller, and so both the majority opinion and the two dissents directly and carefully addressed many of the important Second Amendment questions which McReynolds had conspicuously ignored.

That’s the topic of my new article, for a forthcoming issue of Cardozo Law Review de Novo (the on-line supplement to Cardozo’s printed journal). The article will be part of a symposium issue on McDonald v. Chicago.

Here’s the abstract for my Cardozo article:

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

“Living constitutionalism” should be distinguished from “dead constitutionalism.” Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect constitutional rights. Under a “dead constitution,” judges simply impose their personal values, and nullify parts of the Constitution which they do not like.

When living constitutionalism is taken seriously, the case for the Second Amendment individual right to own and carry firearms for self-defense is very strong. In the 19th century, almost all legal commentators and courts, as well as the political branches and the public, recognized the Second Amendment as guaranteeing such a right.

In the 20th century, some elements of the legal élite asserted that the Second Amendment guaranteed no meaningful right. But this view was never accepted by the public or by the political branches. Congress repeatedly enacted laws to protect Second Amendment rights. In the states, right to arms constitutional provisions were added or strengthened, and many statutes were enacted to defend and broaden the right, especially in the last several decades. Opinion polls showed that the public always believed in the Second Amendment right.

As Jack Balkin has elucidated, the ability of groups such as the NRA (or the ACLU or NAACP) to mobilize constituencies, persuasively communicate their constitutional vision to the public, and influence the political process in favor of the appointment of sympathetic judges is a major force which shapes our living constitution.

From an originalist standpoint, the living constitutionalism of the Second Amendment had a positive influence, in that the social and political forces which living constitutionalism celebrates finally convinced the Supreme Court to stop ignoring the Second Amendment. Living constitutionalism does not always lead back to enforcement of original meaning, but in District of Columbia v. Heller, it did.

For discussion of Judge Benjamin Cardozo’s viewpoint on  self-defense, see pages 15-17 of the California and Nevada district attorneys’ amicus brief in McDonald.

UPDATE: The repeal just passed 2d reading by a vote of 164 to 137! The bill now proceeds to a committee for public hearings. The Canadian Conservative Party has 143 Members of Parliament, so the bill attracted over 20 votes from members of other parties–significantly more than had been expected by Canadian political commentators. Today is a good day for Liberty.

Will take place in the Canadian House of Commons today, at approximately 5:30 p.m., Eastern Time. Bill C-391 is a private member’s bill  (by Candice  Hoeppner of Portage—Lisgar, Manitoba) to repeal Canada’s failed and extremely expensive long gun registry.

Background information about the registry is available in this short presentation from Prof. Gary Mauser, a magazine article by Mauser, and in Mauser’s journal articles on the politics and efficacy of the registry, and in some articles I have written about Canada.

For the last two decades, Canada has been the test bed of the international gun prohibition movement. Repressive ideas from Canada have been exported around the world by the international gun prohibition lobby, which is vastly better at international coordination than the other side.

Repeal of the Canadian registry would, accordingly, be of tremendous global significance. Repeal would also shatter the claim by the Canadian gun prohibition lobby that gun control in Canada is an irreversible ratchet.

If the House votes for repeal today, then there will be committee hearings on Bill C-391, followed by another vote in the House, followed by Senate consideration.

You can follow a webcast of the House of Commons by going here.