The Volokh Conspiracy

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.

The December 2012 issue of The Atlantic features a lengthy article by Jeffrey Goldberg, “The Case for More Guns (And More Gun Control).” Though written before the Newton massacre, the article is quite timely and relevant — and provides much food for thought.

The VC’s own David Kopel was among those Goldberg interviewed for the piece. Dave also had an op-ed in the WSJ this past week, on “Guns, Mental Illness and Newtown.” It’s also worth a read.

A third article worth considering is James Alan Fox’s “Top Ten Myths about Mass Shootings.” Fox is a criminologist and his article is seems quite pragmatic and sober (albeit sobering as well).

Judge Posner’s opinion for a 2-1 panel of the 7th Circuit. Illinois is the only state which forbids gun carrying in public as a matter of law. There is no provision for the issuance of licenses for concealed carry, or for open carry. Both are banned. There are some exceptions for particular activities (e.g., while hunting), and for persons with a special occupational status (e.g., licensed security guard, some government officials).

According to the Supreme Court, 1791 (year of ratification) is the crucial year for the Second Amendment’s original meaning. The usual suspects (Saul Cornell, etc.) claim that there was no generally recognized right to carry in 1791. But the “Supreme Court rejected the argument. The appellees ask us to repudiate the Court’s historical analysis. That we can’t do. Nor can we ignore the implication of the analysis that the constitutional right of armed self defense is broader than the right to have a gun in one’s home. . . .A right to bear arms thus implies a right to carry a loaded gun outside the home.”

“And one doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.” Besides English precedents about restrictions on carrying in certain places or in certain ways were not general prohibitions. Discussion of frontier conditions, and observation that today,

Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.

Judge Posner then surveys the social science evidence about gun carrying, and concludes that it is, on net, indeterminate, and besides that, irrelevant:

In sum, the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law. . . . Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts. 554 U.S. at 636. If the mere possibility that allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban,  Heller would have been decided the other way, for that possibility was as great in the District of Columbia as it is in Illinois.

The State cannot win the case by showing a mere rational basis for the law. Another 7th Circuit case, Skoien, upheld the federal gun ban for convicted domestic violence misdemeanants, and in doing so used intermediate scrutiny, and required the government to produce lots of empirical evidence. In the instant case, the government “would have to make a stronger showing” than in Skoien, since the Illinois carry ban applies to everyone, whereas Skoien involved “a class of persons who present a higher than average risk of misusing a gun.”

“Remarkably, Illinois is the only state that maintains a flat ban on carrying ready-to-use guns outside the home, though many states used to ban carrying concealed guns outside the home, [James] Bishop [Note, “Hidden or on the Hip: The Right(s) to Carry After Heller,” 97 Cornell L. Rev. 907 (2012)], supra, at 910; David B. Kopel, “The Second Amendment in the Nineteenth Century,” 1998 BYU L. Rev. 1359, 1432–33 (1998)—a more limited prohibition than Illinois’s, however.” Illinois offers no evidence why it has some unique need to ban gun carrying; if Illinois’s carry ban were such a great idea, then at least one or two states would have emulated it.

Reiterates Heller’s exceptions: “children, felons, illegal aliens, lunatics, and in sensitive places such as public schools.” Notes with approval that some states sensibly require that an applicant for a handgun permit establish his competence in handling firearms.

In Kachalsky v. Westchester County, the 2d Circuit recently upheld NY State licensing law that requires a carry permit applicant to prove that he suffers from some unique or unusual threat.  Posner chides the 2d Circuit for re-opening historical issues that were settled by Heller. But “Our principal reservation about the Second Circuit ’s analysis.” Posner writes, “is its suggestion that the Second Amendment should have much greater scope inside the home than outside simply because other provisions of the Constitution have been held to make that distinction.” In support, the 2d Circuit cited Lawrence v. Texas. Posner replies: “Well of course—the interest in having sex inside one’s home is much greater than the interest in having sex on the sidewalk in front of one’s home. But the interest in self-protection is as great outside as inside the home.”

Moreover, Posner writes, the main purpose of Kachalsky’s inside/outside distinction was to justify intermediate scrutiny for restrictions on guns outside the home. In Madigan, “our analysis is not based on degrees of scrutiny, but on Illinois’s failure to justify the most restrictive gun law of any of the 50 states.” [Study tip for law students: 3-tier scrutiny doesn't explain everything. If a government prohibited everyone from speaking out loud in public places, a court does not need to use strict or intermediate scrutiny to decide if the ban is constitutional. Blanket bans on speaking in public places are per se void, and so are blanket bans on bearing arms in public places.]

Judge Posner addresses the concern of 4th Circuit Judge Harvie Wilkinson [US v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011)] that delineating the constitutional boundaries of the right to bear arms takes judges into “a vast terra incognita.” Posner agrees, but points out that the new world “has been opened to judicial exploration by Heller and McDonald. There is no turning back by the lower federal courts.”

The Illinois carry ban is illegal. The Court’s mandate will be stayed for 180 days, “to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.”

In state elections, the most important vote this November will be in Louisiana. A referendum there would significantly strengthen protection of the right to keep and bear arms in the state, and would set a very significant national precedent.

Before the Civil War, the Louisiana Constitution did not mention a right to arms. The Louisiana Supreme Courts, however, viewed the federal Second Amendment as directly applicable to state government. So in State v. Chandler (1850), the court held that the Second Amendment protected a general right to carry arms, but that a legislature could ban concealed carry.

A new state constitution, adopted in 1879, provided: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed.” La. Const., art. 3. The first sentence is, of course, nearly verbatim from the Second Amendment.

A century later, firearms prohibitionists had convinced some courts to reinterpret the Second Amendment so as to make it practical nullity. Supposedly, the Second Amendment right was not an individual right, but instead a “state’s right” or “collective right”–which meant that individual gun ownership could be entirely outlawed. Because the Louisiana Constitution’s language so closely paralleled the Second Amendment, there was a danger that a Louisiana court could interpret the state constitutional language to protect nothing at all. Indeed, some courts in other states had already done so, regarding state law language that copied the Second Amendment.

So in 1974, the Louisiana constitutional right was strengthened, with new language: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of concealed weapons.” La. Const., art. I, sect. 11. The new language made it indisputable that the state constitution’s right to arms was an individual right, belonging to each citizen.

Unfortunately, Louisiana’s Supreme Court, like some other courts of the late 1970s, was hostile to the right to arms. According to a 1977 Louisiana Supreme Court decision, “The right to keep and bear arms, like other rights guaranteed by our state constitution, is not absolute. We have recognized that such rights may be regulated in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one.” State v. Amos 343 So.2d 166, 168 (La. 1977).

It was unexceptional for the court to observe that the right to arms is no more “absolute” than any other right. But the court went much further, and essentially stripped the Louisiana arms right of any meaningful judicial protection. According to the Amos court, any form of gun control was constitutional, as long as it was “reasonable.”

In 2001, the Louisiana Supreme Court affirmed a lower court ruling that held: “The right to bear arms is established by the Second Amendment to the United States Constitution and Article I, § 11 of the Louisiana Constitution. The State of Louisiana is entitled to restrict that right for legitimate state purposes, such as public health and safety.” State v. Blanchard, 776 So.2d 1165 (La. 2001). The Blanchard court cited Louisiana state and federal cases from 1986 through 1999 for this proposition.

So Blanchard adopted an even weaker standard of right to arms protection than had Amos. Under Blanchard, any restriction is alright so long as the government has a “legitimate” purpose.  Blanchard‘s legitimate purpose test copies one prong of the weakest standard of judicial review, the “rational basis” test, which was originally created for Fourteenth Amendment Equal Protection cases. Under this test, every law is constitutional so long as the government has a “legitimate” purpose, and the law has a “rational” connection to that purpose.

Fortunately, gun control has not been politically popular in Louisiana in recent decades. So even though the state’s courts have essentially nullified the constitutional right to arms, Louisiana’s firearms statutes are not, in general, oppressive.

In the November 2012 referendum, Louisiana citizens will be given the opportunity to remedy the wrong decisions in Blanchard and Amos. Voters can adopt new constitutional language: “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.”

If adopted, the referendum would make two direct changes:

1. For the first time in Louisiana, concealed carry would be constitutionally protected. This makes sense, because in the 21st century (unlike in the 19th), concealed carry is most common way that Louisiana citizens exercise their right to carry handguns for lawful protection. Like most other states, Louisiana has a statutory system by which concealed carry permits are issued under fair and objective standards.

2. The judicially-imposed “legitimate purposes” test (the weakest test) of judicial review would be replaced by the strongest test: strict scrutiny. Under “strict scrutiny,” the burden of proof is reversed; the government bears the burden of proving that a gun control law is constitutional. To pass strict scrutiny, a law must be proven to serve a “compelling state interest” (not merely a “legitimate purpose”). Even if the law does advance a compelling state interest, the law is constitutional only if the government additionally proves that the law is “narrowly tailored” and is the “least restrictive means” to advance the compelling state interest.

Louisiana would be the first state to write the “strict scrutiny” standard into its constitution. This would become the model in other states for significantly strengthening protection of their own constitutional right to arms. So it is unsurprising that the proposed amendment is strongly supported by the National Rifle Association, the Louisiana Shooting Association, and Gov. Bobby Jindal, who is the most pro-right to arms Governor in Louisiana history, and a national leader on the issue.

Surprisingly, some people in Louisiana are opposing the Amendment on the grounds that it supposedly promotes anti-gun laws. For example, at this website, the author remains invincibly ignorant, even when the facts are patiently explained an attorney from the Louisiana Shooting Association. The website author wants to live in a world of absolute rights. Be that as it may, Louisiana today is not a state of absolute rights; it is a state where the right to arms essentially does not exist, as a matter of state constitutional law, as mis-interpreted by state courts. The amendment would remedy the misinterpretation, and make it drastically harder for future courts to uphold anti-gun laws.

A victory for the Louisiana referendum will profoundly strengthen the right to arms in Louisiana, and have significant positive effects nationally. A defeat would validate the actions of previously Louisiana judges in recent decades who deigned that the right to arms was unworthy of judicial protection.

Earlier today, I filed an amicus brief in Woollard v. Gallagher, currently scheduled for an expedited hearing around October 23 before the Fourth Circuit. The case is an appeal from the decision of the federal district court that Maryland’s granting of handgun carry permits only to persons who can prove a specific, imminent threat is unconstitutional. The winning lawyer in the case below was Alan Gura, representing Raymond Woollard and the Second Amendment Foundation.

The brief is filed on behalf of the  two major professional associations of police firearms trainers: the International Law Enforcement Educators & Trainers Association (ILEETA); and the International Association of Law Enforcement Firearms Instructors, Inc. (IALEFI). Also joining the brief are Professor Clayton Cramer, and the Independence Institute.

Here’s the Summary of Argument:

Strong protection of the constitutional right to the licensed carry of handguns for lawful self-defense does not interfere with police efficacy in cracking down on illegal gun carrying.
Data from law enforcement agencies shows that persons with carry permits are far more law-abiding than the general population. Assertions that licensed carry harms public safety are based on false data from a gun prohibition group.
The case can be resolved without need for a standard of review, because the near-complete suppression of an enumerated constitutional right can never be constitutional.
Maryland law, like the laws of states which generally comply with the Second Amendment, leaves ample discretion for denial of permits to unsuitable applicants, and allows denials for many reasons other than felony conviction.
Upholding the decision of the district court would be consistent with precedent in other states protecting the constitutional right to bear arms.

In addition to the Fourth Circuit’s Woollard case, there are major cases on the right to bear arms currently pending before the Seventh Circuit and the Ninth Circuit. There may a good possibility that at least one of them will eventually be heard by the Supreme Court, perhaps in the 2013-14 term.

Eugene Volokh’s post below discusses a dissent by the Ninth Circuit’s Judge Reinhardt in a capital sentencing case. Judge Reinhardt accurately states that carrying a gun is a Second Amendment right, to make the broader point that carrying a gun is not, in itself, illegitimate behavior. Judge Reinhardt could have strengthened his opinion by citing two cases in which the U.S. Supreme Court reversed capital convictions because the district court had improperly treated gun carrying as evidence of malign, homicidal intent.

The first of these is Gourko v. United States, 153 U.S. 183 (1894). John Gourko was 19 year old Polish immigrant.  He lived with  his brother Peter in a mining camp in the Choctaw Nation, in what was then the federal Indian Territory of Oklahoma.  Peter Carbo, another Polish immigrant, aged 45, has dispute with them over certain loads of coal, which he claimed the Gourko brothers had filched. According to a witness, Carbo threatened “to shoot John like a dog.” Carbo was easily capable of violence; he weighed 200 pounds, was very strong, and was considered dangerous. John Gourko, weighing 130 pounds, was considered delicate “and was deemed a quiet peaceable boy.”

One holiday, Carbo confronted John Gourko near a post office, shaking a fist in his face, and screaming at him. Witnesses feared the Carbo would kill John on the spot. About half an hour later, there was a confrontation between Carbo and John Gourko in a billiard hall. They argued, and then went outside. Gourko fired his pistol once over Carbo’s head, then twice to the body, killing him.

The Supreme Court’s opinion was written by Justice John Marshall Harlan. Justice Harlan noted that Gourko’s act might have been lawful self-defense, but that was not the precise issue as the case had come to the Supreme Court. Instead, the question was the validity of District Judge Isaac Parker’s instructions to the jury about the difference between premeditated murder and manslaughter. Judge Parker had told the jury that Gourko’s carrying of a handgun could be considered evidence of premeditated intent to kill, even if the carrying was purely for self-defense.

Justice Harlan, writing of a unanimous Court, disagreed: “the jury were not authorized to find him guilty of murder because of his having deliberately armed himself, provided he rightfully so armed himself for purposes of self-defense, and if, independently of the fact of arming himself, the case tested by what occurred on the occasion of the killing was one of manslaughter only.”

Justice Harlan’s sympathy for Gourko may have had some basis in Harlan’s own life. When Harlan was a young man, his cousin (also named John Harlan) was prosecuted for killing a local character who, Justice Harlan later recalled, “advanced upon John as if to attack him.”  John Harlan (the cousin, not the future Justice) drew a pistol and killed the attacker. During and after the trial, which resulted in an acquittal on grounds of self-defense, the deceased’s “gang” had well-known intentions to kill cousin John Harlan at the first opportunity. Thus, John Harlan (the future Justice) and two other men kept a constant guard on their cousin; during this time, the two men and the future Justice “were heavily armed.”  Justice John Harlan was also personally familiar with non-criminal reasons for carrying firearms, being an avid hunter and target shooter, and a commander of the Kentucky militia during the Civil War.

Gourko’s conviction and death sentence were reversed, and he was granted a new trial. He pled guilty to manslaughter, and was sentenced to four years in prison.

The second case is Thompson v. United States, 155 U.S. 271 (1894):

Thompson was decided in the term following Gourko, and it too came from District Judge Parker’s court.  Thomas Thompson was a 17 year old Creek Indian farmboy. Half a mile away lived Charles Hermes, who made threats to kill Thompson if Thompson came near the Hermes farm.

One afternoon, Thompson was sent to deliver a bundle to a woman who lived a few miles away. The only road went by the Hermes farm. Passing by the farm, Thompson got into a heated argument with Hermes, who repeated his threats to kill Thompson.

After delivering the bundle, Thompson, realizing that the only road home was the road that ran by the Hermes property, borrowed a Winchester rifle.

As Thompson rode home, Hermes’ sons called out to him. One of the sons, Charles Hermes, started towards a gun that was propped on a fence. Thompson, believing that Charles Hermes intended to kill him, shot Charles Hermes first, and then fled on horseback.

Charged with murder, Thompson pleaded self-defense. In the Thompson trial, Judge Parker instructed the jury that the jury was free to conclude that Thompson had provoked the trouble, and therefore lost his right to self-defense; according to Judge Parker, Thompson could be viewed as the instigator of the confrontation because he had armed himself and returned to a place where he knew Hermes would be.

Similarly, the judge instructed the jurors that to the effect that they should not convict Thompson of manslaughter, rather than murder. By arming himself, Thompson had shown the kind of deliberation and premeditation which amounts to murder.

Quoting at length from the Gourko case, the Supreme Court unanimously reversed Thompson’s conviction because of the defective jury instructions. Merely being armed, and traveling by the only road available could not possibly be considered evidence that Thompson wanted to provoke trouble, or that he intended to kill Hermes, the Court said.

Concluded the Court: the trial court’s error “is in the assumption that the act of the defendant in arming himself showed a purpose to kill formed before the actual affray. This was the same error that we found in the instructions regarding the right of self-defense, and brings the case within the case of Gourko v. U.S., previously cited, the language of which we need not repeat.” Thompson was freed, and was not retried.  The unanimous opinion was written by Justice George Shiras, Jr.

Gourko and Thompson are among The Self-Defense Cases, a set of decisions from 1893-96, plus the later Brown v. United States, 256 U.S. 335 (1921) (Holmes, J.) (“Detached reflection cannot be demanded in the presence of an uplifted knife.”). These are the cases in which develop the no duty to retreat rule, which we today sometimes call “Stand Your Ground.” As Justice Harlan wrote in Beard v. United States, 158 U.S. 550, the victim of a violent attack

was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

(Emphasis added.) The cases are discussed in my article  The Self-Defense Cases: How the Supreme Court Confronted a Hanging Judge in the Nineteenth Century, 27 Am. J. Crim. L. 294 (2000) (cited in United States v. McElhiney, 275 F.3d 928, 935 n.2 (10th Cir. 2001)). The article contains the citations for all the quotes in this Post.

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.

Earlier today, Maryland federal district Benson Everett Legg decided the case of Woollard v. Sheridan. Plaintiffs on the case  are Robert Woollard and the Second Amendment Foundation. The lead attorney for plaintiffs is Alan Gura, the winning attorney in D.C. v. Heller and McDonald v. Chicago.

As explained in the district court’s Dec. 2010 ruling, rejecting a motion to dismiss:

Plaintiff Woollard initially obtained a handgun carry permit after he was assaulted by an intruder in his home in 2002. The permit was renewed in 2005. At that time, the intruder had recently been released from prison, providing a “good and substantial reason” for Woollard to carry a firearm. In 2009, Woollard again sought to renew his permit so that he could carry a handgun for self defense. MSP Secretary Sheridan denied Woollard’s application, however, because Woollard failed to provide sufficient evidence “to support apprehended fear.”

At issue in the case is the Maryland statute which says that the Secretary of the State Police can issue a carry permit if  the applicant “has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.” Md.Code Ann., Pub. Safety § 5-306(a)(5)(ii).

In today’s decision on the merits, the “good and substantial reason” requirement was ruled to violate the Second Amendment. The court held that the Second Amendment right is not limited to self-defense in the home. It also includes the militia and hunting. None of the Second Amendment rights can logically be confined solely to the home: “In addition to self-defense, the right was also understood to allow for militia membership and hunting. To secure these rights, the Second Amendment‘s protections must extend beyond the home: neither hunting nor militia training is a household activity, and ‘self-defense has to take place wherever [a] person happens to be’.”

The internal quotation, by the way, is from Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009). Based on judicial citations, the Volokh article appears to be by far the most influential post-Heller  article on the Second Amendment.

The Maryland carry license law was not “narrowly tailored,” says the Woollard opinion. Moreover, “A citizen may not be required to offer a ‘good and substantial reason’ why he should be permitted to exercise his rights.” Rather, “The right’s existence is all the reason he needs.”

The case is headed to the Fourth Circuit, which has a mixed record on Second Amendment issues. From there, Woollard could be the case in which the Supreme Court chooses to tell recalcitrant lower federal courts that Heller and McDonald really do mean what they say: that the Second Amendment includes the right to carry, albeit not in “sensitive places,” and the government may, if it wishes, require that carry be open rather than concealed.

The SAF press release is here, and a terse AP story is here. Congratulations to Alan Gura and to SAF President Alan Gottlieb!

A few weeks ago, the New York Times reported that the NY Police Department was working with the Department of Defense on a remote firearms detector. According to the article, the detectors are  presently effective at a 3 to 5 meter range at finding guns that are being carried concealed. The objective is to improve the detectors so that they work from a distance of 25 meters.

Commentators, what do you think of this? Does is raise Fourth Amendment concerns? Second Amendment issues? Any other constitutional or policy questions?

According to the New York Times, the answer seems to be “yes.” An article in yesterday’s Times by Michael Luo collects some anecdotes about misbehavior by a few licensees in North Carolina. The Times article has some numbers in it, and it provides the number of North Carolinians with carry permits (240,000). After a thorough search of North Carolina records, the Times finds that about 1% of permitees were convicted of something, other than a traffic offense, over the past five years. Of these 2,400 convictions, by far the largest group is “nearly 900 permit holders were convicted of drunken driving, a potentially volatile circumstance given the link between drinking and violence.”

“Drunk driving” (which, I would guess, the Times uses as a shorthand for lesser offenses such as driving while impaired) is a serious crime in itself. But just because a woman has three glasses of wine with dinner at a restaurant, and then gets caught in a police checkpoint, doesn’t make her some “potentially volatile” person who is going to murder somebody in an inebriated rage.

In any large population (e.g., 240,000) there will be at least a small percentage who over a period of time are found guilty of some crimes. This does not mean that that population as a whole is dangerous. It would have been useful to compare the conviction rates of North Carolinians who have carry licenses with the convictions rates of those who do not. I suspect that the non-licensee crime rate would be much higher, especially for violent gun crimes.

In a 2009 article in the Connecticut Law Review, I collected data from Minnesota, Michigan, Ohio, Louisiana, Texas, and Florida. (The state data begin on page 564 of the article.) The data show that concealed carry licensees are much more law-abiding than the general population, and that the rate of gun misuse of any sort (let alone having something to do with violence in  public place) is less than one in one thousand.

Instapundit collects some other responses to the Times‘ effort to foment hysteria and prejudice against the persons who exercise the constitutional right to carry firearms for lawful protection.

[This post was corrected in response to reader comments, including the fact that I wrongly wrote that the Times had not reported the total number of licensees.]

Regarding Eugene Volokh’s post below about an NYU L. Rev. article, “The People” of the Second Amendment: Citizenship and the Right To Bear Arms. I just scanned the article, and there appears to be only a single footnote which directly cites any state statutes from before 1800. Note 125, accurately cites standard statutory compilations from Massachusetts and Connecticut for laws against selling firearms to Indians. Although the author is apparently unaware that by 1661 (Connecticut) and 1688 (Massachusetts) the laws were changed to allow gun sales (and even gun carrying in towns) by friendly Indians. The article suffers very severely from its near-exclusive reliance on secondary sources for the pre-1800 period, especially since some of those sources are highly tendentious.

To summarize the information from Chapter 3 of my forthcoming textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen Publishers, available in late Jan. 2012) regarding American law pre-1800:

Women: No restrictions. Of course they did not serve in the militia. Laws requiring “householders” (whether or not they were in the militia) to have arms were common, and these usually included a woman who was the head of the house (e.g., a widow).

Free blacks: Some states had no restrictions, some states had bans on their owning guns. Free blacks served in some state militia, not in some other states, and in some states policies changed depending on military necessity. They were excluded from the federal militia by the Second Militia Act of 1792.

Slaves: Several states banned gun ownership, or allowed ownership only with the master’s permission.

Poor whites: To claim that they were excluded from gun ownership or from militia service is absurd. There were absolutely no property or wealth restrictions on gun ownership, nor on service in the militia. To the contrary, many states had programs to supply poor people with guns (“public arms”) for militia service, if they could not afford their own. Further, the laws requiring householders to be armed often required that the household provide arms to adult male servants. State laws also required that when an indentured servant finished his or her term of service, the master must provide the former servant with “freedom dues” so that the servant could begin independent life. The freedom dues were specified set of goods; in Maryland, Virginia, and North Carolina, freedom dues for male servants included a firearm. In short, the state laws of the 17th and 18th centuries in America were generally prescriptive about gun ownership by poor people, and the prescriptions were to put guns into the hands of the poor.

The author of the NYU article asserts that “arms bearing was considered congruent to voting, holding public office, or serving on juries.” That’s incorrect for “bearing” in the sense of carrying a gun for personal use, since there were no wealth, sex, age, or citizenship restrictions on carrying. And the claim is even more incorrect if “bearing” is meant in the restrictive sense of “bearing for militia service.” Militia laws always mandated service by all males (except, sometimes Blacks or Indians) in a certain age range. Period. The only exemptions were for specified professions (e.g., clergy). Militia duty was generally required starting at age 16 or 18 (which was before voting eligibility). Indeed, during the end of the 18th century and the early 19th century, one of the standard,successful, arguments for broadening the franchise by eliminating the property requirement for voting was that anyone who served in the militia deserved to vote. E.g., “Let every man who fights or pays, exercise his just and equal right in their election.” Thomas Jefferson letter to Samuel Kercheval, July 12, 1816.

Catholics: In Maryland, temporarily barred from gun ownership during the French & Indian War.

Dissenters: During the Revolution, there were plenty of instances of confiscating guns (sometimes with compensation) for militia use from people who would not take a loyalty oath to the new nation, or who would not serve in the militia (this included plenty of religious pacifists in Pennsylvania). During the early theocratic days in Massachusetts, 75 supporters of the religious dissident Anne Hutchinson were disarmed.

The author’s thesis is that illegal aliens and legal non-resident aliens should be allowed to own guns. Part of his argument is to construct and then criticize the supposedly historical “gendered,and class-stratified understanding of persons permitted to own guns.” The author could have made a stronger historical argument for his position if he had accurately described the gun laws of 17th and 18th century America.

By a vote of 272 to 154. (The vote on the motion to recommit was 161 to 263). On the final vote, 44 Democrats voted in favor, and 7 Republicans voted against. H.R. 822 now goes to the Senate. In the previous Congress, a broader bill on interstate carry was narrowly defeated by a filibuster led by Sen. Charles Schumer. Of course whether the bill ever comes up for a vote in the Senate is up to Majority Leader Harry Reid.

In September, I testified before the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security, in support of the bill. My testimony focused mainly on the Congress’s constitutional authority to pass the bill under the powers granted by section 5 of the 14th Amendment. Among the explicit purposes of the 14th Amendment was to give Congress the power to enact legislation protecting the right to interstate travel, which is one of the Privileges or Immunities of citizens of the United States. My written testimony is here. A video of the subcommittee hearing is here. And here’s short podcast on the subject, with Cato.

HT to Shall Not Be Questioned for coverage of the day’s voting, in which all hostile amendments were defeated.