The Volokh Conspiracy

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.

So explains John Lott, in an opinion column for Foxnews.com. Not a surprising result. The McDonald v. Chicago amicus brief I wrote for the International Law Enforcements Educators & Trainers Association (and other law enforcement organizations, and criminologists) showed that after Chicago enacted its handgun ban, its violent crime rate rose sharply. Pre-ban, Chicago had a violent crime rate 1.12 times greater than the violent crime rate of the 24 other largest cities. (That is, Chicago’s violent crime rate was 12% higher than that of the 24 other cities.) Post-ban, Chicago’s crime rate soared immediately, and remained 67% higher than the other large cities. The possibility that Chicago’s sudden and long-standing deterioration compared to other large cities is less than 1 in 100,000. Details are presented at pages 17-22 of the brief, and the appendices.

On Tuesday I testified before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. My 24-page written testimony is here. The video of the subcommittee hearing is about and hour and 45 minutes. Nearly all members of the 21-member attended the hearing, and used their opportunity to ask 5 minutes worth of questions. Most of the questions posed to George Mason Law’s Prof. Joyce Malcolm, Philadelphia Police Commissioner Charles Ramsey, and me, were quite thoughtful. Some congressional hearings are just a form of kabuki theater, but in Tuesday’s hearing, Representatives of both parties, and on both sides of the gun issue, seemed to be sincerely trying to learn more. The bill currently has 243 House co-sponsors.

Filed earlier this week by Stephen Halbrook, in the case of Williams v. Maryland. In short, Maryland bans all handgun transportation or carry without a permit, and has a permitting process which formally declares that it will deny permits to almost everyone. As the petition explains, “the Maryland State Police, the Maryland Handgun Permit Review Board, and the Maryland courts have consistently interpreted these provisions [state regulations] to require the applicant to document, typically with police reports, that he or she has been the victim of assaults, threats, or robberies, except for applications involving certain occupations.”

Williams was peaceably transporting his handgun from his girlfriend’s home to his own home. He has been convicted, and sentenced to a year in prison. The state’s highest court, the Maryland Court of Appeals, rejected Williams’ Second Amendment challenge, because, supposedly, the Heller and McDonald affirmations of a general right to carry handguns (except in “sensitive places”) is mere dicta which the Maryland court will not follow unless a future U.S. Supreme Court cases formally announces “we meant what we already said.”

As Halbrook points out, “When the Framers intended that a provision of the Bill of Rights related to a house, they said so. [3d and 4th amendments.] They did not recognize a limited right to keep and bear arms only in one’s house. Despite this plain textual reference prohibiting infringement on the right to ‘bear arms,’ the Maryland court argued that the right need not be recognized at all because this Court has not decided cases directly on point. ‘But general statements of the law are not inherently incapable of giving fair and clear warning .. . .’ United States v. Lanier, 520 U.S. 259, 271 (1997).2 [note 2:] ‘The easiest cases don’t even arise. There has never been . . . a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal]
liability.’ Id.”

Further, Heller’s right to carry language is not dicta, according to McDonald: “our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” As Halbrook points out, this inescapably “implies a right to bear arms outside the home (even if not quite as ‘notably’ as in the home).”

Williams had not applied for a permit, which would have been futile in light of Maryland’s established policy of permit denials. The Maryland Court of Appeals held the Williams therefore lacked standing to challenge the statute. Halbrook responds:

This is completely unfounded given Petitioner’s criminal conviction. Under this Court’s precedents, it is not a requirement for standing to challenge an allegedly unconstitutional permit requirement that one must apply for the permit and be denied. A long line of cases have invalidated permit requirements to exercise First Amendment rights in which the defendants who were convicted did not apply for permits. One of the more recent cases is Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 156 (2002) (invalidating permit requirement even though “Petitioners did not apply fora permit.”).

...

even if there were some general requirement for Petitioner to submit an application in order to challenge the permit statute, that requirement would be eliminated here under the doctrine of futility. This court has made it clear in various contexts that litigants are not required to perform a futile act. See,
e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 625-26 (2001) (where limitations imposed by wetland regulations were clear, and there was no indication
that kind of use sought by landowner would have been allowed, court did not require submission of “futile applications” with other agencies);

 Eugene Volokh’s analysis of the Maryland ruling is here.

When the Supreme Court for the first time recognized the existence of an individual right to bear arms in District of Columbia v. Heller in 2008, I warned that the decision might well end up giving gun owners very little new protection against regulation:

The Supreme Court may have endorsed an individual right under the Second Amendment to bear arms. But
the District of Columbia certainly isn’t leaping to implement that right.....

History shows that mere judicial recognition of a right doesn’t guarantee that the right will get meaningful protection. It is especially unlikely if the right is supported by jurists on only one side of the political spectrum. Judicially recognized rights also can get short shrift if the Supreme Court defines their scope narrowly.

To the delight of some and the distress of others, both these factors may limit the impact of the newly recognized individual right to bear arms.

Earlier this year, McDonald v. City of Chicago ruled that the Second Amendment applies to state governments as well as the feds. Nonetheless, it is far from clear that the ruling will have much effect. McDonald left intact Heller’s expansive list of “presumptively lawful regulatory measures,” which includes restrictions on the sale of guns, bans on carrying guns in “sensitive” locations, bans on ownership by felons (which in most states includes a wide range of people who have not been convicted of any violent crime), and others.

A recent ABA Journal [HT: Josh Blackman] article on lower court decisions applying McDonald and Heller seems to bear out my prediction:

Proponents hailed Heller and McDonald as setbacks for gun control advocates. They predicted a shift in gun policy throughout the country.

But so far it hasn’t happened that way. While there have been challenges throughout the country to local, state and federal gun laws, few have been successful.

In fact, critics of the decisions say the cases have failed to provide a concrete framework to help lower courts determine the constitutionality of challenged gun control laws.....

As I predicted, mere judicial recognition of the existence of a right doesn’t necessarily lead to meaningful protection for it. Such protection is particularly unlikely when a substantial part of the judiciary (most liberal judges) is hostile to the very idea that this right deserves protection at all.

This doesn’t mean that Heller and McDonald will be completely without effect. The two decisions do ensure invalidation of laws that completely forbid gun possession in the home or come very close to doing so. They thereby forestall any potential move towards total gun prohibition, though such an outcome was improbable anyway, given the political power of gun owners and the NRA. The rulings also have an important symbolic value.

Finally, it’s certainly possible that the Supreme Court will hear more cases in this field and eventually impose tougher scrutiny on gun laws. However, any such move seems unlikely in the near future. With the four liberal justices categorically opposed to Heller and McDonald in the first place, whatever protection gun rights get will track the lowest common denominator of what the five conservatives can agree on. It seems to me unlikely that all five will agree on any high level of scrutiny. Indeed, the list of exceptions in Heller is probably a roughly accurate barometer of the level of protection that can get five votes in today’s Court.

UPDATE: I suppose I should note the obvious point that lower court litigation over Heller and McDonald is far from over, and it’s still possible that some lower court judges will apply these decisions more aggressively than has happened to this point. But the dominant trend so far suggests that such cases are likely to be the exception rather than the rule.

Peruta v. San Diego is one of several cases challenging sheriff misapplication of California’s concealed handgun carry licensing statute. The case features Chuck Michel as lead attorney for plaintiffs. The case does not assert that California’s statute requiring a license to carry a concealed handgun for protection is unconstitutional. Rather, the argument is simply that the statute specifies that licenses should be issued to qualified applicants (training, good moral character) who have “good cause.” Pursuant to Heller, lawful self-defense is not only good cause, it is the best possible cause. The case has already survived a motion to dismiss.

Along with Prof. John Eastman, I filed an amicus brief on behalf of the Independence Institute, Law Enforcement Alliance of America, Doctors for Responsible Gun Owners, and the Center for Constitutional Jurisprudence. The arguments are:

 I. The case can be decided without a standard of review, because near-total prohibition of a constitutional right is never constitutional.
II. A “reasonable” regulation is one that does not eliminate the exercise of a right, but instead is narrowly tailored, is based on a significant government interest, and leaves ample alternatives.
III. The state court cases approvingly cited in Heller expressly affirm the right to carry.
IV. Twentieth century state courts decisions affirm the general right to carry for lawful self-defense.
V. McDonald specifically addresses and prohibits mass deprivation of the right to bear arms.

The more I participate in discussions on the constitutionality of the indivdiual mandate, the more it feels to me like a replay of last year’s discussions on the Privileges or Immunities Clause on the road to McDonald v. City of Chicago.

In both cases, the issue is whether the Supreme Court will adopt limitations on the scope of government power that are greatly desired by libertarians and supported from an originalist perspective, but that Supreme Court doctrine hasn’t shown any particular sign of adopting as a a matter of constitutional law. In both cases, much of the commentary in favor of the limitation seems aimed at fostering a sense of the legitimacy of those limitations with the hope that this will make it more likely for the Supreme Court to adopt them. In both cases, I find myself at odds with my co-bloggers on the likelihood that the Supreme Court would take that step — with my co-bloggers seeing it as a quite realistic possibility, and me seeing it as extremely unlikely. (In both cases, I saw it from the outset as a likely 8-1, with only Justice Thomas on board.) And in both cases, many commenters are extremely passionate about what they believe the correct constitutional answer must be — with commenters seemingly lining up in the same way on the two issues.

There are differences, of course. The debate over McDonald was more for law geeks than the public: It concerned the likelihood an argument would win in a known case, not even the result in that case, and it lacked the broad political movement that exists over the individual mandate. Still, I can’t avoid the sense of deja vu.

It was delivered in late June to the Second Amendment Task Force, a group of Republican Senate aides. (Unfortunately, the Senate’s protocals of partisanship prevent organizations like this from having aides from both parties.) My presentation is here (22 minutes). The presentation by Hans Von Spakovsky, Senior Research Fellow at The Heritage Foundation, is here. And Stephen Halbrook’s presentation is here.

Available here. See paragraphs 19-28 for description of which parts of Chicago’s legal regime are being challenged. The National Rifle Association is helping with the funding of the case, but is not a party. Lead attorney is Charles Cooper, so it is certain that the presentation of the plaintiffs’ arguments will be outstanding.

[youtube]http://www.youtube.com/watch?v=1ffBXm7kJkk[/youtube]

A wonderful song at all times, and especially around Independence Day, especially this year.

“The Battle Cry of Freedom” was written during the Civil War, and sung by Union troops going into battle. This video pays tribute to Ulysses Grant, the General most responsible for winning the war for the Union. Elected President of the U.S. in 1868 and re-elected in 1872, U.S. Grant vigorously enforced federal civil rights laws to protect the freedmen. Not until Lyndon Johnson in 1963-69 would an American President work with such determination for civil rights. After leaving the White House, Grant served as the 8th President of the National Rifle Association.

The National Rifle Association’s brief in McDonald v. Chicago quoted President Grant:

Subsequently, President Grant issued a report on enforcement of the Civil Rights Act which noted that parts of the South were under the sway of the Klan, which sought “to deprive colored citizens of the right to bear arms,” and to reduce them “to a condition closely akin to that of slavery * * *.” Ex. Doc. No. 268, 42nd Cong., 2d Sess., 2 (1872).

The brief  likewise quoted a report from General Grant about the conditions in Mississippi which had helped convince Congress of the necessity of the Fourteenth Amendment, to make the Second Amendment applicable to all state and local governments:

“The statute prohibiting the colored people from bearing arms, without a special license, is unjust, oppressive, and unconstitutional.” Cong. Globe, 39th Cong., 2d Sess., 33 (1866).

McDonald v. Chicago brings the United States an important step closer to accomplishing a central purpose of the Fourteenth Amendment: making all of the Bill of Rights applicable to every state and local government in America. It was a national tragedy that the Supreme Court essentially nullified much of the Fourteenth Amendment for so long. It is a national blessing that America’s many civil rights organizations were able, over the long term, to revitalize the Fourteenth Amendment, and change the Supreme Court from a nullifier of the Amendment into an enforcer of the Amendment.

In the discussion of the McDonald case a few weeks ago, I posted a link to Philip Hamburger’s manuscript, Privileges or Immunities. His forthcoming article, which will be published by the Northwestern Univ. Law Review, is now online in a version that may be cited and quoted.

In the National Law Journal, Tony Mauro has an article on the possible impact of the petitioner’s tactical decision to focus on the Privileges or Immunities Clause in McDonald v. City of Chicago. I think it’s just too early to know, as the decisions haven’t been written yet. If I had to guess, though, my guess would be that the three significant effects of that decision were (a) to revive interest in the original meaning of the 14th Amendment among court watchers, (b) to give Paul Clement 10 minutes of oral argument time, and (c) to get our readers nice and toasted from playing the the J. Aldridge/Bingham drinking game.

A lot of VC readers who have followed McDonald v. City of Chicago were quite disappointed last week by what they saw as the Supreme Court’s likely unwillingness to revisit the Privileges or Immunities Clause. At oral argument, the Justices seemed focused on the practical problems of reviving PorI, not on whether such a revival was correct. None of the Justices who spoke seemed particularly interested in how a normatively proper constitutional theory applied to the case. A lot of readers were thinking, “What’s the point of the Supreme Court if they’re not committed to getting it right as a matter of first principles?”

These certainly are fair criticisms. But it seems to me that if you really want to change things, you should direct at least part of your criticism to the Constitution itself — specifically, Article II, Section II. This section explains how people get on the Supreme Court: the President nominates, the Senate confirms, and the President then appoints. In other words, Supreme Court Justices must be nominated, confirmed, and appointed by politicians.

When politicians are responsible for determining who gets a significant power, they are not likely to favor someone who they think will exercise the power of the office in unexpected ways. They generally won’t want someone who will follow a theory to radical implications. Indeed, they probably won’t want “theorists” at all. They’ll want people who exercise the power of the office with a sense of consequences, of cause and effect, and of the realities of institutional power. That is, practical people. And that means that the Justices we’re likely to get are likely to have that sense, and are unlikely to be the kind of purists who will follow theories even if it leads to radical implications.

I’m not saying this is a good or a bad thing. Opinions differ, and it’s beyond the scope of this post. My point is only that it’s the system the Constitution gave us. The Framers bestowed responsibility upon politicians for nominating and confirming Justices, and that choice means that the Justices we’re likely to get are likely to be more practical people than constitutional theorists. So if you’re disappointed that the Justices are not committed enough to constitutional first principles, it is of course fair to criticize the individual Justices, and the broader legal culture. But I think at least part of your criticism should be directed to the Framers for giving responsibility to politicians for who ends up a Justice.

Given Randy’s earlier response to my initial prediction on how the Court might respond to Alan Gura’s Privileges or Immunities argument, I was hoping Randy might weigh in with his thoughts on the McDonald oral argument.  I am pleased to see that he has.  In this morning’s post, Randy writes:

Hey Orin. Given that you insist you have no expert view on the original meaning of the Privileges or Immunities Clause, how do you know that Richard L. Aynes, Jack M. Balkin, Steven G. Calabresi, Michael Kent Curtis, Michael A. Lawrence, William Van Alstyne, Adam Winkler (none of whom are dreaded libertarians, so far as I know) and my reading of the Privileges or Immunities Clause is wrong? And doesn’t the failure of the justices who were obviously hostile to the Privileges or Immunities argument to ask any question challenging the accuracy of this reading strongly confirm its correctness as a matter of original meaning? Had there been a hole in that claim, do you think Justice Scalia would have hesitated to mention it to puncture the originalist analysis of “the professoriate”? Hearing none, can we take this claim of original meaning as presumptively established and go on from there?

Two responses:

First, to be clear, I have never argued, and I don’t know, that Randy’s view of the original public meaning of the Privileges or Immunities Clause is wrong. I love legal history, but I’m not a trained legal historian who has gone through all the original materials myself. And as best I can tell, legal historians simply disagree on the question. Given that, I can read their works with interest and sometimes get a vague sense of what seems more or less plausible. But self-awareness requires me to admit upfront that I have no deep insight into who is right or wrong. (As an aside, I find this particularly frustrating in my area of Fourth Amendment law: If you care about legal history, as I do, but are not a trained historian — and the historians in the field disagree amongst themselves — you’re left uncertain as to the answers to questions that you would really like to know. But I guess that’s just one more entry on the long list of things I wish I knew, but don’t.)

Randy’s second question is whether the absence of the Justices trying to poking holes in his view at oral argument “strongly confirm[s] its correctness as orignal public meaning” and indeed “presumpively established” its correctness. With all due respect to Randy, I don’t think it does. As best I can tell, the Justices didn’t ask any questions about the original public meaning of the Privileges or Immunities clause not because they all saw Randy’s views as correct, but because they saw the question as beside the point. Based on the transcript, it seems that the Justices clearly had it in mind to incorporate the Second Amendment via Due Process, and they thought the Privileges or Immunities arguments were a bit of an oddity. Presumably that’s why the Justices took the extraordinary step of giving Paul Clement 10 minutes of the Petitioner’s oral argument time. Only Justice Scalia really engaged with the PorI issues, and that was mostly to express his view that stare decisis forecloses the inquiry. Given that the Justices’ attention was elsewhere, I don’t think we can read their silence on the issue as a strong sign of their views — assuming that they have views of the original public meaning of PorI, which may or may not be the case.