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Scholars and the Second Amendment:
Jonathan links to Adam Liptak's story today in the New York Times on the Second Amendment and the role playing by "liberal" academics in attaining acceptance for the individual rights reading. He also links to Jack Balkin's comments diminishing the role of academics and crediting the popular constitutionalism of the gun rights political movement. There's more than enough credit (or blame) to go around.

First, I think there is no question that the acceptance of the individual rights interpretation by Sandy Levinson in his 1989 Yale Law Journal article, The Embarrassing Second Amendment, followed by Bill Van Alstyne, Akhil Amar and Laurence Tribe thereafter played an enormous role in legitimating the individual rights position and undercutting the ad hominems used by gun control folks that the individual rights position was a figment of the NRA's heated imagination. (For example, see the notorious law review article, Gun Crazy, which initially induced me to write a response that became my first Second Amendment article in the Emory Law Journal). In this sense, I agree with the thrust of the Times column that the endorsement of the individual rights position by these well respected "liberal" scholars was crucial to the growth in acceptance of this view. And it forced those opposing the individual rights position to step forward with reasoned arguments, as they have in another important part of the story that the Times omits (more on this below).

Second, I think Jack Balkin is perfectly right that the sustained and effective political pressure on behalf of gun rights has been more important than academic research, especially in preserving that freedom in the absence of any constitutional protection. Political activity also provided the impetus for the Democrats' retreat from challenging basic gun rights (at least rhetorically) after the 2000 election. Indeed, so powerful has been the political protection of gun rights that one wonders whether they would be weakened rather than strengthened if and when the Supreme Court affirms an individual rights reading. (See below on this also).

What the story leaves out, of course, are the prodigious efforts of those "libertarian" and "conservative" constitutional scholars who did much of the heavy lifting when it comes to the original meaning of the Second Amendment AND the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. And this scholarly effort was pioneered by nonacademics.

No one did more to revive the individual rights position than gun rights activist Don Kates. Indeed, Levinson credits Kates' influential 1983 Michigan Law Review article, Handgun Prohibition and the Original Meaning of the Second Amendment, with changing his mind about the Amendment. Another prolific nonacademic author and litigator is Steve Halbrook. In addition to his Second Amendment scholarship, Halbrook's path-breaking work on the Fourteenth Amendment, Freedman, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, has yet to be answered, to my knowledge, by any scholar on the other side. (It would not surprise me if I missed something here as it has become hard to keep up with the burgeoning literature in this field.) Indeed, it was anticipated by "liberal" constitutional scholar, Michael Kent Curtis in his important 1986 book, No State Shall Abridge. Another early nonacademic scholar was David Hardy.

The writings by these nonacademic are as scholarly as those by any academic I know, and predated by several years the involvement of academics. A bit later, very important work was done by my nonacademic co-blogger Dave Koppel. More recently, Clayton Cramer played an important role in debunking the Michael Bellisiles fraud.

But the research of professors such as Joyce Lee Malcolm, Glenn Reynolds, Robert Cottrol, Eugene Volokh, Brannon Denning, and many others was absolutely crucial to whatever success the individual rights position has enjoyed.

(As you will tell from my linking, much of the scholarship on both sides of this debate can be found here. I apologize in advance to the many writers who have contributed importantly to the scholarly literature whom I have failed to mention.)

I was a relative latecomer to this issue with my 1996 Emory Law Journal article, Under Fire: The New Consensus on the Second Amendment, co-authored with Don Kates. This article's reference to the "new consensus" on the Second Amendment predates the recent scholarly pushback against the individual rights position, thereby negating the existence today of any scholarly consensus. My most recent 2004 piece in the Texas Law Review, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, replies to this reformulation of the pro-gun-control position as an individual right conditioned on participation in an organized militia.

This last point highlights the other significant development omitted by the Times: the concerted scholarly response to the individual right scholars, most of which is centered around the 2000 Symposium on the Second Amendment: Fresh Looks, in the Chicago-Kent Law Review, and the Second Amendment Research Center at Ohio State run by Saul Cornell.

In the 2002 case of Silveira v. Lockyer, Judge Stephen Reinhardt relied heavily on this scholarship in the first attempt at a truly "originalist" opinion by a federal court of appeals to reject an individual rights interpretation. (Judge Reinhardt also relied on the now-discredited work of Michael Bellesiles, and the opinion now in the Federal Reporter is revised to omit these references. The Ninth Circuit still has the original version online here.) Silveira was decided in the wake of the 2001 Emerson decision in the Fifth Circuit that had endorsed an individual rights position on originalist grounds, and relied heavily on the scholarship noted above.

When Don and I claimed the existence of a "scholarly consensus," we defined this carefully as a consensus of constitutional scholars who had written on the Second Amendment (as opposed to most scholars who taught constitutional law but did no work on this subject). Thanks to this recent pushback, there is no longer a scholarly consensus and a "liberal" Supreme Court Justice could well follow Judge Rienhardt's lead in rejecting the individual rights interpretation.

Judge Reinhardt's opinion highlights a generally neglected facet of this debate. It is conducted almost exclusively on originalist grounds, even by nonoriginalists such as Judge Reinhardt. While all who criticize the individual rights position on originalist grounds are themselves nonoriginalists, Michael Dorf is a rare writer on the Second Amendment who expressly defends a nonoriginalist approach to the issue.

One question this raises for me is the role that has been played by the debate over the meaning of the Second Amendment in the rise of originalist interpretation. Indeed, in my case, I was drawn to originalism in important part by my own work on the original meaning of the Ninth and Second Amendments that I had began writing well before I was an originalist myself. I started to wonder why I cared so much about original meaning while rejecting originalism as a method of interpretation.

Several other interesting questions are raised by the remarkable political success of the gun rights movement noted by Jack Balkin: Would gun owners be better off or worse off if the Supreme Court does recognize an individual right to arms? Or would the federal courts then consistently uphold gun laws, as the Emerson court did, thereby weakening the right in practice? And would the supposed constitutional "protection" of gun rights also weaken the impetus for the very political efforts that have actually protected gun rights? Would gun control enthusiasts be shrewd to embrace the individual rights interpretation of the Second Amendment as away of taking some of the political steam out of those who oppose most gun controls?

To be clear, I strongly support the constitutional protection of gun rights under the Second and Fourteenth Amendments. But I also acknowledge that, while ruling out confiscation and prohibition, the protection of these rights allows "reasonable" regulation in the same manner as the First Amendment does not rule out reasonable time, place, and manner regulations of speech and assembly. What an individual rights reading of the Second Amendment does require is meaningful scrutiny of any proposed regulation that purports to be a safety measure but is really designed to place an undue burden on the exercise of a fundamental rights, especially those that are not narrowly tailored to their purported public safety rationales. (It also requires an appropriate interpretation of the "police power" of states by which to gauge the appropriate purpose of any gun law; that is, the protection of the rights of others.) Yet the allegedly strong constitutional protection of the freedom of speech did not stop the Supreme Court from upholding shocking restrictions of the political speech that is at the heart of the First Amendment in the name of "reasonable campaign finance reform."

Would the same thing happen to gun rights, while weakening political opposition to unreasonable gun controls? Or would the constitutional protection of gun rights increase the legitimacy of the gun rights position and thereby enhance its political power?

Because I do not think we can ever know the answer to these questions in advance, I favor the judicial protection of all constitutional liberties and let the resultant political chips fall where they may.

Related Posts (on one page):

  1. Scholars and the Second Amendment:
  2. How Liberals Saved the Second Amendment:
BruceM (mail) (www):
It should be pointed out that the entire portion of the 5th Cir.'s Emerson decisions regarding an individual right to keep and bear arms is dicta (as pointed out by the concurring judge).
5.6.2007 3:21pm
frankcross (mail):
Excellent review, though I always thought of Don Kates as a liberal. I don't know him, but I thought his early focus was on the importance of gun rights for black equality, which seemed like a liberal spin on the whole question.
5.6.2007 3:26pm
Randy Barnett (mail) (www):
Frank, good point about Don. Yes, he does indeed consider himself a conventional ACLU-type liberal. So too, I believe, is Dave Koppel, but I am not sure of this. I suppose I included Don in the narrative where I did because he is a nonacademic (unlike the liberal academics discussed in the Times article), and also because, like Dave, he favors gun rights on policy grounds, in contrast with the academics discussed in the Times article whose constitutional heresy on the Second Amendment contradicted their policy preferences.
5.6.2007 3:38pm
Mark Field (mail):
If I were a gun owner, I'd be at least as worried about the abortion decisions. If Carhart represents the Court's view of what is not an "undue burden", then the extent of regulation is likely to be much more intrusive than some might expect.
5.6.2007 4:21pm
Andrew Okun:
A couple of questions.

If the courts adopt an individual rights interpretation, does the whole first clause vanish? Would it effectively be "the right to keep and bear arms shall not be infringed."? Presumably, machine guns will remain illegal, but under what theory?

If the first clause still counts, what happens to "well-regulated" and "militia"?

If "well-regulated" doesn't that leave us where we are now politically not too far from where we are now, with governments able to pass licensing and regulation as long as they don't ban outright?

If "militia" still means something, would we expand on the logic of the 1939 decision, where the federal government can't take away a gun if it is useful to a militia? Would that mean the feds could regulate saturday night specials, truly a personal weapon, but could not stop someone owning a bradley fighting vehicle or an M240, decidedly useful for a militia?
5.6.2007 4:36pm
Sebastian (mail) (www):
It's certainly one of my concerns in regards to using the courts to secure second amendment rights, that, even if Parker goes to the Supreme Court and prevails, that the circuit courts will construe the decision so narrowly as to uphold all but the most onerous restrictions in any subsequent case brought before the federal courts.

I don't see if having anything but a positive effect on the political debate. I think most of us will still fight proposals like registration (even though I think it would probably be constitutional), and other schemes. It would also relieve us from having to fight some of the political battles we have to deal with today. I think having the Supreme Court rule it's an individual right will be a powerful political blow to the gun control organizations. Getting backed up against the Bill of Rights is not where I'd want to be, if I were in their shoes.

The biggest risk I see is gun owners suddenly starting to feel "safe", and leaving organizations that have been effective at preserving their rights, not realizing that there will still be many (constitutional) ways for anti-gun groups to make life difficult for us.
5.6.2007 5:40pm
Christopher Fotos (mail) (www):
Is your Texas Law Review aricle (Is the right to keep and bear arms conditioned etc. (pdf) just an excerpt--is that the practice there, just the first three pages? Just when it was getting interesting....
5.6.2007 5:43pm
glangston (mail):
If the 2nd is individual, what level of scrutiny will it attain, strict scrutiny, or the level it seems to barely cling to now, rational basis (or not so rational, as the case may be). " Shall not be infringed" portends strict scrutiny
5.6.2007 5:47pm
Mark Field (mail):
To follow up on my previous post regarding "undue burden", I think that adoption of that test for the 2d A may well result in a Cold War standoff of Mutually Assured Destruction for liberals and conservatives. Here's how I see it developing.

When a phrase like "undue burden" gets used by the Court, it eventually must define the term in some fashion in order to give guidance to the lower courts. I foresee, therefore, a jurisprudence of "undue burden".

Now, what will happen if this "undue burden" standard gets applied to both abortion and gun control? In abortion cases, liberals will want it defined very narrowly in order to create as broad a right as possible. Conservatives will take the opposite approach. On gun issues, however, the positions will reverse. Liberals will want a broad interpretation, conservatives the narrow one. Each side will hold the other hostage to a favored right.
5.6.2007 6:02pm
rothmatisseko (mail) (www):
A reasonable Second Amendment is better than a neutered one. I should be able to carry in D.C.

And if you need a cache of weapons to fight the government, I doubt you'll care if your guns are illegal.
5.6.2007 6:03pm
Pub Editor:
Professor Barnett,

Thank you for collecting this research and these links on one page.

Good post.

(Now back to studying for the Securities Reg final; arghhh...)
5.6.2007 6:09pm
rlb:
Andrew Okun: Well-regulated is (was?) a term of art; it means something like "in good working order"- like, "a well regulated clock keeps perfect time." "Militia" just refers to the body of citizens of capable of military service. The amendment protects the well-regulated militia by preventing the government from disarming the people. The people's right to arms is protected regardless of whether an individual is a member of the militia, or whatever the character of the individual's arms. If you think about it, this makes sense: a 12-year-old boy with a single-shot .22 is neither a member of the militia nor using a militia-type weapon, but his years of shooting it will no doubt contribute to the "well regulated militia" when he comes of age. An old lady with a "Saturday night special" makes a commerce-clause-can-regulate-chewing-gum contribution to the arms industry that keeps them solvent and producing arms that contribute to the "well regulated militia." Maybe she'll leave it to one of her grandkids when she passes, who will later become an officer...

The introductory clause does help with interpretation of the operative clause in one respect, though. Someone might be tempted to make a Scalia-esque "arms kept and borne in 1791" argument, but for the fact that a "militia" of today can't be well-regulated, nor can it "secur[e] a free state" with muskets and muzzle-loading cannon. The Second Amendment is one of the few provisions of the Constitution that clearly has an "evolutionary intent."

Heck, if the Court followed the abortion model-- the government could require you to jump through a few hoops but ultimately it wouldn't be able to stop you from getting a 50-megaton nuke. Four Justices would say that the government has to buy nukes for anyone who wants them. It'd be a huge deal if the Court allowed the government to tell you how you could take your nuke into Times Square: enclosed trailers are okay, but Soviet-parade-style flatbeds with "DEATH TO AMERICA" painted on the side may be regulated...

As a practical matter, though, recognizing the individual right to keep and bear arms as protected by the Constitution would absolutely be a good thing. Instead of the courts saying "what right?," and ending the discussion there, they'd have to actually explore the scope of the constitutional protection-- I doubt the Supreme Court could shut it all down with one decision. More litigation means more public interest and activism, and ultimately more victories.
5.6.2007 7:08pm
K Parker (mail):
glangston,
" Shall not be infringed" portends strict scrutiny
One would think so, but then again I used to think "Congress shall make no law" was pretty obvious, too.

Thus, I'm with those who think a pro-individual-rights decision will be a good thing, but it won't end the debate--we'll still need to be vigilant to keep our rights from being chipped away.
5.6.2007 7:19pm
Dave Hardy (mail) (www):
As far as the beginning of the process, I can remember, 'cuz I was there!

1974, I brought out an article in Chi-Kent L Rev. At that time there were, oh, half a dozen articles in print over the last 20 years, mostly student notes or bar journal articles without much depth at all.

1976 or 77, Dave Caplan published. Don Kates came in, too, tho I can't remember when. I know I met him at the Second Amendment Foundation's first symposium, which in 77 or 78, so he was already busy then. I think I met Steve Halbrook at its second symposium, so he must have been in the field then, too. Joyce Malcolm joined in around 78-79, I think. We were all busily researching and swapping manuscripts , trying to build up a scaffolding, as it were; there were few enough of us to where you could easily copy off an ms. and send it to everyone who was writing in the field. Then there were some folks who brought out one or two pieces in this early period -- Bob Dowlut, Jan Knoop, Richard Gardiner spring to mind.

From 74 to 1983, that was it. We were all bringing out articles, but in the lesser known reviews. The highest-ranking review we got into was probably Joyce's piece in Hastings Con Law Quarterly. The material was out there, Steve being esp. prolific, but even after nine years of writing it wasn't being recognized in serious circles. Don was the only legal academic among us; Joyce was a prof. of history, the rest of us weren't profs of anything.

Then in late '83, Don Kates got out his Mich Law Review piece and the dam started to break. None of us realized it at the time, of course. It was "hey, Don got into a big-name review! Cool!"

(Another historical note: one of the Mich L. Rev. editors assigned to work on the piece found it, and the right to arms, extremely interesting. He was Dave Kopel).

Funny part from the early days is -- I can still remember who discovered what. Tench Coxe's article -- that was Steve Halbrook's discovery. Lord Somers' notes on the 1688 Bill of Rights -- I found it in the Library of Congress. Just about everything else about the 1688 Bill -- Joyce Malcolm. 14th Amendment -- Steve Halbrook.

You'd read thru other folks' manuscripts to see what new discoveries had been made. The factual underpinnings that today are old hat --OK, we all know about Tench Coxe and Somers' notes and the removal of "guns" from the Game Act after the 1688 bill -- back then were exciting discoveries.
5.6.2007 7:46pm
Andrew Okun:
Now, what will happen if this "undue burden" standard gets applied to both abortion and gun control? In abortion cases, liberals will want it defined very narrowly in order to create as broad a right as possible. Conservatives will take the opposite approach. On gun issues, however, the positions will reverse. Liberals will want a broad interpretation, conservatives the narrow one. Each side will hold the other hostage to a favored right.

I think justices of all persuasions are quite capable of taking some concept like undue burden and finding it to be loose and pliant on one issue and narrow on another.
5.6.2007 8:02pm
wuzzagrunt (mail):
Dave Hardy: thanks to you and all the others for the good work. One thing that has always intrigued me is how and when the script got flipped and gun control became an issue for "liberals". It seems that anti-black, anti-immigrant, and anti-bolshevik/anti-anarchist reactionaries were the originators of the earliest restrictions on gun rights. How and when did liberals take ownership of the issue? Has anyone analyzed that part of the history of the gun control movement?
5.6.2007 8:31pm
Jim Rhoads (mail):
Not only libertarians believe that the Constitution is primarily designed to be a written protection from government control over the individual, not for government control over the individual

This post and the articles it features demonstrates that proposition.
5.6.2007 8:52pm
juris_imprudent (mail):
A.O.,

Presumably, machine guns will remain illegal, but under what theory?

Same as today - interstate commerce. Though arguably (and in an honest court), Miller would preclude the '86 prohibition and the '34 regulatory regime.

If the first clause still counts, what happens to "well-regulated" and "militia"?

Nothing. The militia still technically exists, though not for any practical purpose. We have accepted a military establishment that would astound our countrymen of the late 18th century.

...with governments able to pass licensing and regulation as long as they don't ban outright?

Licensing may be a bit more iffy, but registration is probably constitutional though still ill-advised. I can register a 500hp automobile, so why not the equivalent firearm? The problem is this wouldn't achieve any end desired by gun control proponents.

Would that mean the feds could regulate saturday night specials, truly a personal weapon

No, because a "SNS" is a side-arm, something officers have carried for a long time (and many enlisted as well). You are aware of the etymology of "SNS" are you not?
5.6.2007 8:59pm
Dave Hardy (mail) (www):
One thing that has always intrigued me is how and when the script got flipped and gun control became an issue for "liberals". It seems that anti-black, anti-immigrant, and anti-bolshevik/anti-anarchist reactionaries were the originators of the earliest restrictions on gun rights. How and when did liberals take ownership of the issue? Has anyone analyzed that part of the history of the gun control movement?

I don't think it has been. Obviously in the Reconstruction period, gun rights were a "liberal" issue. Going forward to the 1890s, Teddy Roosevelt was the biggest gun nut ever to win the White House, and by standards of the time was liberal (and regarded by his opponents as downright left).

The role-reversal would date to the early 20th century... when gun control became seen as a form of "reform," particularly geared to needs of the large cities. Both are those are favored issues to traditional liberals. That period saw first the Sullivan Act in NY, and then the Uniform Pistol Act as a milder counterproposal that was adopted in many states, esp. in the NE. (Some of the UPA's provisions seemed geared to a population that feared guns. A gun dealer could not have firearms visible thru a window from the street, and any purchased gun must be securely wrapped before leaving the premises, and of course CCW permits, all of which serve to keep guns out of sight).

Clayton Cramer has documented how much of the gun laws of the period were driven by fears of newly-arrived immigrants, anarchist-types, etc. I think Joyce Malcolm has documented the same with the British gun controls of the same period.

The big push of course comes in the 60s, and by then the gun control issue is securely in the liberal camp, and opposition to it solidly in the conservative camp. I think the two reinforced each other. That is, liberal support was reinforced by the perception that the opposition was their stereotypical conservative: a pigheaded, probably rural, redneck who could care less about the needs of minorities and the inner city.

It might be worthwhile studying the gun issue in detail over the period 1960 to 1965 in that light. In 1960 it was really a non-issue. In 1965, it was one of the biggest national issues, and a solidly liberal one. (Altho pushed by Tom Dodd, who was quite conservative on most things ... in this case, tho, he started out trying to give the gun mfrs of his state what they wanted, and were paying him for -- to outlaw cheap foreign rifle imports, and shut down the interstate mail order houses. Before GCA 68 you could buy by mail order, and foreign guns were cheap, and it was really killing the domestic mfr's profits). Might even be that the assassination of JFK helped make it a solidly liberal issue... if Eisenhower had been killed instead, it might have been less of a liberal monopoly.
5.6.2007 9:00pm
33yearprof:
The social control, non-crime related origins of British gun control laws are clearly laid out in Joseph E. Olson and David B. Kopel, All the Way Down the Slippery Slope: Gun Prohibition in England and Some Lessons for Civil Liberties in America, 22 Hamline Law Review 399 (1999).
5.6.2007 9:49pm
big dirigible (mail) (www):
What strikes me is that writeups like this still make a big deal of "scholarly" vs. "other" work. But as we know from the scholastic academy's ridiculous performance during the Bellesiles disaster, academic quality control is vastly overrated. Now of course the "history" and "legal" academies are different beasts; but still, a general faith in officially sanctioned scholarship seems misplaced. Work of good quality is of good quality wherever one finds it, and work of poor quality is of poor quality no matter how scholastic its origins.

(All this is easy for me to say, as my own fields are scientific.)

I'm also a bit bemused by the equation of restrictions on the 1st and 2nd Amendments. "Jackbooted thugs" don't normally bust into domiciles to investigate violations, real or imaginary, of 1st Amendment restrictions. Parallels between the two Amendments tend to be misleading.

And speaking as a resident of Massachusetts, I'd like to point out that it's premature to talk about the triumph of the individual rights interpretation. 'Round here in the "shot heard 'round the world" state, it hasn't triumphed yet. In fact the entire state took a huge step into an imaginary leftoid utopia in 1998. It's grim.
5.6.2007 10:01pm
Dave Hardy (mail) (www):
Now of course the "history" and "legal" academies are different beasts; but still, a general faith in officially sanctioned scholarship seems misplaced. Work of good quality is of good quality wherever one finds it, and work of poor quality is of poor quality no matter how scholastic its origins.

I'd agree with the latter point. With the former, remember that attorneys are the only profession trained to fight with each other. Law profs tend to be less conflict oriented, but it's still a field where conflict is seen as healthy. The way the historians rallied around Bellesiles when he was attacked, with evidence that was quite clear, was, to my eyes, disgraceful.

Compare what was for decades constitutional dogma: standards of review break down into strict scrutiny and rational basis. There were Supreme Court justices who wrote that that was all hogwash, even as the remainder of the Court followed it, and the Court later evolved a third standard, which in turn has been labelled hogwash by some.
5.6.2007 10:54pm
David P. (mail):
I don't think it would matter much day-to-day for gun owners if the Second was finally readmitted to the Bil of Rights. The thing that keeps my firearms-ownership and -use rights intact isn't 'the intent of the founders', it's a humungous and potent political pressure lobby. As long as the NRA (GOA, JPFO, et cetera) exists and can shape elections ten times as effectively as the Hoplophobe Lobby, my rights will be at least as well-protectedwhen people must admit that they exist as they are now, when people claim they don't.

Andrew, did you know that in almost half of American states, private citizens CAN and DO own machine guns? or that howitzers (or other types of cannon, as well as grenade launchers, flamethrowers, sound-suppressed weapons, and sawed-off shotguns) are also legal for purchase and peacable enjoyment? Or that there's no law at all against owning a Brad, or your choice of other military armored vehicle, and that people do collect and restore old tanks, APC's et cetera?

It seems to me that your Doomday Scenario has been a fact on the ground for decades, and nobody seems to have noticed...
5.6.2007 11:29pm
Jim FSU 1L (mail):
What I'm hoping for is Parker getting certiorari granted or better yet hearing oral arguments just as the 08 elections hit.
5.6.2007 11:35pm
David M. Nieporent (www):
DavidP:

The NRA isn't a potent lobby because the organization hires smart people; it's a potent lobby because it represents a lot of people worried about their gun rights, and hence it can deliver money and votes. If gun rights are not endangered, it may lose that constituency and hence that ability to deliver, at which point it loses its clout.

(Of course, that's not guaranteed; the abortion lobby has managed to thrive for decades in which Roe wasn't threatened, and even to make abortion an issue in races in which abortion isn't an issue, like local races. A clever advocacy group can cause people to fear even when there's nothing to fear.)

It depends in part on what the Supreme Court says, how strongly, and by how many votes. If there's a 9-0 vote in favor of an individual right, which says that the government needs a compelling interest before it can impose any regulations, that's very different than a 5-4 vote for individual rights which implies that virtually any restriction short of an outright ban will be upheld.
5.7.2007 1:17am
Gordo:
As a person who supports responsible gun ownership, and is saddened by the horrific toll guns take on our nation, I would be very happy if, in a "historic compromise," gun banners accepted that the 2nd amendment bars prohibition of standard firearms in individual ownership. Then, with that off the table, we can have responsible gun ownership just has we have responsible vehicle ownership through mandatory training and licensing programs and registration.

Yes, I know that's too much to ask from the gun rights absolutists of the NRA.
5.7.2007 1:43am
steveH (mail):
Gordo,

It's not the "gun rights absolutists of the NRA" who have taken firearm safety training and shooting clubs out of American high schools and colleges.

As for "mandatory [motor vehicle] registration", it's nothing more than state revenue enhancement, and only applies if you're going to operate the vehicle on public highways.

Sort of like issuing CCW permits for public concealed carry, compared to no permit requirement for carry on private property.

Or did you miss the memo?
5.7.2007 2:08am
Unix-Jedi (mail) (www):
Gordo:

gun banners accepted that the 2nd amendment bars prohibition of standard firearms in individual ownership.

First problem: I wouldn't believe them if you could monolithically get "gun banners" to... negate themselves and agree not to ban. We've been there before. NYC, Chicago, CA (state and the country) for the oft-cited cases of "registration" with promises that confiscation/police action is of course, never, never intended. Never, won't happen.

just has we have responsible vehicle ownership through mandatory training and licensing programs and registration.

I don't know a single serious "gun rights" activist who wouldn't consider that to be a "Powerball Lottery-type win" for the rights side. So I don't know anybody who would seriously argue against it.

Treating guns like we do cars? With nationwide reciprocity, safe passage, "Full faith and credit?"

Please don't throw me in that briar patch!
5.7.2007 2:08am
Gene Hoffman (mail) (www):
The worry that a SCOTUS ruling in favor of Parker would be to the long term detriment of the the pro gun policy position ignores a couple of serious implications of the actual ground game over at least the next 10 years.

1. The majority of states already have relatively strong individual rights in their constitutions with only a couple having been damaged by their supreme courts. North Carolina is a state with a strong individual right regardless of federal questions.

2. Parker doesn't incorporate via the 14th. As a California resident (No RKBA and the home base for Silviera) Parker is only half the battle.

However, I do think there are some interesting places that this can and will all go. Machine guns will likely become shall issue. Also, there is a huge change for the 9 states that aren't shall issue CCW based on the word "bear" in the Second Amendment (post incorporation.) So called Assault Weapons bans are certainly toast over the long haul.

-Gene
5.7.2007 3:24am
PersonFromPorlock:
So, did the civil rights movement peter out after Brown? After the Civil Rights Act of 1964? The Voting Rights Act of 1965? I suspect that the 'gun rights movement' will survive success at least as well.
5.7.2007 8:04am
David M. Nieporent (www):
Randy, did Herz ever respond to your devastating critique of his Gun Crazy article?
5.7.2007 9:34am
whit:
"horrific toll guns take on our nation"

this comment shows the inherent bias. guns don't take a toll on anybody or anything. neither do vehicles, bathtubs, swimming pools, etc. all of which are associated with many many deaths.

people's careless use or misuse of same leads to deaths.

i know this seems simplistic, of the "guns don't kill people, people kill people" mentality, but it is true and it is helpful when digesting this issue.
5.7.2007 12:18pm
Clayton E. Cramer (mail) (www):
It is certainly true that once upon a time, gun control tended to be the cause of what might have been called "conservatives" at the time. But I think the major determinant of whether a particular group supported gun control was who was in charge. This paper by me that no one will publish shows that fear of Bolshevik revolution is what caused Britain's 1920 Firearms Act--and some of those who supported it in the Cabinet, just a few years earlier, had encouraged Ulster Irish to arm themselves to fight back against the government, which was believed about ready to grant Ireland independence (and force Ulster to be part of it). If you have confidence that the government represents your interests, and will continue to represent your interests, you tend not to be as afraid of the government having a monopoly on deadly force.

There's also a cultural component as well, however. Liberals tended to identify with gun control from the 1960s onward because three of their great icons were killed by gunfire: John Kennedy; Robert Kennedy; Martin Luther King, Jr. I also suspect that one of the reasons that liberals grabbed onto gun control as much as they did was because the problem of gun violence (and non-gun violence as well) is overwhelmingly black. (It is quite common for 40-50% of U.S. murders to be blacks killing other blacks.) For a lot of liberals, they would have to ask, "What in the heck is wrong in the black community, especially after we spent all this money on the Great Society? It is almost like our wonderful efforts made things worse! And that can't be!" It was easier to blame guns.
5.7.2007 12:31pm
Clayton E. Cramer (mail) (www):

As a person who supports responsible gun ownership, and is saddened by the horrific toll guns take on our nation, I would be very happy if, in a "historic compromise," gun banners accepted that the 2nd amendment bars prohibition of standard firearms in individual ownership. Then, with that off the table, we can have responsible gun ownership just has we have responsible vehicle ownership through mandatory training and licensing programs and registration.

Yes, I know that's too much to ask from the gun rights absolutists of the NRA.
1. The NRA is usually not the absolutist wing of the gun rights movement.

2. I guarantee you that if gun control advocates settled for gun regulation equivalent to automobile regulation, most gun rights activists would spend about ten milliseconds debating the point before agreeing.

My Idaho driver's license is good in every state, and every Canadian province. I would love to have every American state recognize my concealed carry permit.

I can buy a car in any state, regardless of where I am a resident. I can only buy a handgun in my home state, and only under very limited conditions can I buy a long gun in a contiguous state.

There are no horsepower limits on cars, and what safety regulations there are are consistent nationally. I can drive my Corvette anywhere, and not worry about being pulled over, arrested, and my Corvette confiscated because it is capable of violating the speed several times over. Gun owners in California, New Jersey, Massachusetts, and New York would love for guns to be regulated like cars.

I can buy as many cars as I want (and can afford), without waiting periods or background checks, in any state.

In most states, if the car never leaves private property, I don't need to register or license it. Quite a number of East Coast residents would love for guns to be that loosely regulated.

In most states, I don't need a license to drive a car on private property. I only need a license to drive a car on public streets--analogous to concealed carry licenses.

To my knowledge, there is not a single state that allows officials to make arbitrary decisions about who gets a driver's license, and who doesn't. To my knowledge, there is not a single state where "campaign contributions" or outright bribery plays a role in deciding who gets a driver's license. Gun owners in California, New York, Massachusetts, and New Jersey would love for licensing to be this fair and open.
5.7.2007 12:52pm
Spartacus (www):
I would be very happy if, in a "historic compromise," gun banners accepted that the 2nd amendment bars prohibition of standard firearms in individual ownership. Then, with that off the table, we can have responsible gun ownership just has we have responsible vehicle ownership through mandatory training and licensing programs and registration.

Although it has been addressed, and the inherint bias is evident, let me add: what exactly are "standard firearms"? As pointed out above, machine guns, and more are legally owned in a majority of states; this is quite "standard." ALso, I am not required to have a license or registration to own a car or use it on private property. Neither are automobiles a constitutionally protected right. Even granting (which I am reluctant to do) CCLs, why should I need (by analogy to cars) a license or reg to own a gun in my own home, or shoot it on my property? Really, the analogy just fails on too many levels.
5.7.2007 1:39pm
Clayton E. Cramer (mail) (www):
Gene Hoffman writes:

However, I do think there are some interesting places that this can and will all go. Machine guns will likely become shall issue. Also, there is a huge change for the 9 states that aren't shall issue CCW based on the word "bear" in the Second Amendment (post incorporation.) So called Assault Weapons bans are certainly toast over the long haul.
Correct if I am wrong, but I believe that federal machine gun licensing is already required if you aren't in a prohibited category. Some states are discretionary on issuance, and everywhere you have to get the appropriate state or local official to sign off that your acquisition of a machine gun won't break any state or local laws--and there are attorneys who regularly get writs of mandamus to get state and local officials to sign off on these applications.

If the courts eventually incorporate the 2nd Amendment against the states (as they certainly should do), every state will be shall issue on carry permits, at a minimum. and yes, assault weapon bans would be toast.
5.7.2007 2:04pm
Ken Willis (mail):
The National Firearms Act of 1934 requires all machine guns to be registered with the ATF [now BATFE] and a transfer tax paid. The stock of legally owned machine guns is frozen at the current level because the Volkmer-McClure Act of 1986, known as the Gun Owners Protection Act, imposed an outright ban on private possession of machine guns.

That is why an M-16 that you could legally own will be at least 21 years old and might cost you 20 grand, while your local office of the Small Business Administration, or a two-man police department in a small village, or any other type of government agency, could buy a brand new one for about 800 bucks.
5.7.2007 2:59pm
Ken Willis (mail):
Further to the above, it depends on where you live as to whether you could buy a legal machine gun even if you were willing to pay the price because in order to register it with the BATFE you need your local sheriff or police chief to sign the paper work.
5.7.2007 3:03pm
M. Simon (mail) (www):
We still have a militia in America and it has performed rather well when called on.

Remember Flight 93.
5.7.2007 6:25pm
Spartacus (www):
Ken Willis's posts above should demonstrate that the NFA combined with the GOPA must be unconstitutional under any reasonable reading of the 2d Amdt. that recognizes an individual right to militia weapons. If having to pay $20,000 for a 25 year old weapon as you only option to try to arm yourself like a well regulated militiman isn't infringment, then it seems only an absolute ban could be.
5.7.2007 11:14pm
Clayton E. Cramer (mail) (www):

Ken Willis's posts above should demonstrate that the NFA combined with the GOPA must be unconstitutional under any reasonable reading of the 2d Amdt. that recognizes an individual right to militia weapons. If having to pay $20,000 for a 25 year old weapon as you only option to try to arm yourself like a well regulated militiman isn't infringment, then it seems only an absolute ban could be.
That provision actually was ruled unconstitutional in U.S. v. Rock Island Armory (C.D.Ill 1991). The attorney representing the defendant used the House Ways and Committee hearings on NFA34 to show that everyone--including the AG and Asst. AG who were pushing the bill--knew that a complete ban on new manufacture or possession would be exceeding the federal government's authority under the interstate commerce clause, and the 2nd Amendment.

The government, unsurprisingly, chose not to appeal that decision to the appellate level.
5.7.2007 11:37pm