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Prof. Glenn Reynolds (InstaPundit) on How Courts Should Address Individual Right-to-Keep-and-Bear-Arms Claims,

in Guns and Gay Sex: Some Notes on Firearms, the Second Amendment, and "Reasonable Regulation" (forthcoming in the Tennessee Law Review).

This is a very important issue, whether or not the Supreme Court holds that the Second Amendment secures an individual right — after all, at least 40 state constitutions secure an individual right to bear arms, and they'll remain relevant with regard to those states' gun control laws regardless of the Court's Second Amendment decisions; and Glenn is one of the nation's leading right-to-bear-arms scholars. If you're interested in the subject, I highly recommend his piece, which also has the merit of being only 12 pages long. For a link to the article to which Glenn is responding, see here.

Crunchy Frog:
The problem is, "reasonable regulation" is a very slippery term, and subject to the whims of appelate jurists everywhere. Until there is a sufficient body of case law built up, expect a never-ending sequence of circuit splits. The Supes are going to be digging themselves out of this hole for a long time.
11.19.2007 2:46pm
arbitraryaardvark (mail) (www):
The "reasonable regulation" perspective of the gun-banners is supported by many state court interpretations of state right to keep and bear provisions, but these don't provide the best model for how SCOTUS should interpret the 2nd Amendment.
Some state provisions, like Tennessee's, announce a right to bear arms but give it away to the legislature in the next sentence.
Many state courts that fail to treat state rtkba provisions with strict scrutiny or as an absolute bar, do so because this is the general way they look at their state constitution's bills of rights, construing them as merely hortatory, or only as authorizing rational basis review which is already available anyway under the 14th Amendment, except as to clauses that parallel federal provisions, where they have federal precedents to follow. The clauses I've looked at closest, the right to free and open elections found in most state constitutions, are rarely given anything close to strict scrutiny.
A minority rule is that state constitutions actually mean something, and should be enforced. Wasson v Kentucky was a pioneer case on gay rights that Tennessee and Lawrence later followed.
The typical state court, if there were no first amendment, would allow "reasonable regulation" of bibles. If the gun banners want to point to state constitutions as a model, they need to find states that strictly construe the rest of their state bill of rights, but allow reasonable regulation of arms, where the text suggests an absolute bar or strict scrutiny. There might be such states - Glenn and Eugene and David know the case law better than I do. But such states would be a minority, not the general rule.
The Second Amendment's "infringe" standard sounds to me like strict scrutiny or an absolute bar, rather than a window for a reasonableness standard. Is there legitimate scholarship suggesting otherwise? On the other hand, the Second does not protect keeping and bearing of arms, but protects "the right" to keep and bear. So it would be possible to find historical limitations on what was meant by the right, analogous to obscenity and libel exceptions to the right to free speech.
11.19.2007 3:14pm
33yearprof:
On the other hand, the Second does not protect keeping and bearing of arms, but protects "the right" to keep and bear.


If this makes a difference, we lawyers deserve the low repute in which the public holds us.

This sounds correct, though.
The Second Amendment's "infringe" standard sounds to me like strict scrutiny or an absolute bar... .

After all, the Framers were educated men and they knew how to express different concepts with different words. For example, the 1st Amdt. says "respecting, prohibiting, and abridging," the 4th says "unreasonable," while the 2nd says "infringed." In 1822 they still remembered the strength of the phrase "shall not be infringed." Thus the Kentucky Supreme Court declared
Whatever restrains the full and complete exercise of that right [to keep and bear arms], though not the destruction of it, is forbidden by the explicit language of the constitution.
11.19.2007 4:38pm
uh clem (mail):
Anybody got a list of cases in state court where a an individual right to bear arms has been used to declare a law unconstitutional?

This is a serious question - at the national level the RTKBA advocates have been long on rhetoric and short on litigation. At the state level, where in 80% of states the individual interpretation is quite explicit, is there the same lack of enthusiasm for litigation? Or am I just unaware of the case law?
11.19.2007 4:39pm
UW2L:
The title of the article (two great tastes that taste great together) gives new meaning to the joke about "the right to arm bears."

I'm a little dubious about Reynolds' claim that courts are suspicious about legislatures' motives and will readily "second guess" the stated purpose of a law, at least where the law is otherwise valid and where the legislative history doesn't reveal some great conspiracy to pass an officially innocuous law motivated by bad faith. And I'm a little worried about courts imputing bad motive to lawmakers in order to reach the result they (the courts) want when otherwise they can't get to that result (as I read "where such second-guessing is necessary to protect a textually secured right" - it seems to suggest questioning, even making up, legislative motivation as a last-ditch resort).
11.19.2007 4:58pm
Tony Tutins (mail):
Reynolds has a tough row to hoe. In Quilici v. Morton Grove, a 7th circuit panel observed that the Illinois Constitution made the right to keep and bear arms subject to the police power, thus the village's total ban on handgun ownership was a reasonable restriction. Later, in the early 80s, the City of Chicago, which had required handgun owners be registered, quit taking new registrations.
11.19.2007 6:28pm
Dilan Esper (mail) (www):
I don't think there really is a textual warrant for strict scrutiny (the Second Amendment expressly contemplates regulation of the militia and arises from a history where there was a right to keep and bear arms but the government has the right to call up the militia, organize it, discipline it, and direct its activities).

But I would further note that strict scrutiny (let alone an absolute prohibition) is fantasyland for gun rights advocates. It is simply never going to happen.
11.19.2007 7:55pm
Eugene Volokh (www):
Tony Tutins: The Illinois Constitution's right to bear arms is unusually narrow: It expressly says, "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed" -- no other provision expressly makes the right subject to the police power.
11.19.2007 8:01pm
Glenn Reynolds (mail) (www):
Eugene is right that Illinois is a departure. As I mention in the linked piece, though, the "police power," properly understood, isn't synonymous with "whatever the legislature wants." More on that here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=963197
11.19.2007 9:40pm
CrazyTrain (mail):
Glenn-- Glad to see you in the comments. Wonder why you don't have comments on your site; scared that it will reveal the true nature of your readership?
11.20.2007 12:53am
GetReal (mail):

Glenn-- Glad to see you in the comments. Wonder why you don't have comments on your site; scared that it will reveal the true nature of your readership?

Probably to avoid whiners posting irrelevant comments.
11.20.2007 8:41am
Steve in CT (mail):
Dilan, one common misperception seems to be that 'well regulated' has the same meaning today as it did back in the 18th century. In contrast to where we would define it as meaning 'limited by government regulations (laws)', they were using one of the military definitions. One is listed below, others include properly equipped or well trained.

Well Regulated

The Random House College Dictionary (1980) gives four definitions for the word "regulate," which were all in use during the Colonial period and one more definition dating from 1690 (Oxford English Dictionary, 2nd Edition, 1989). They are:

1) To control or direct by a rule, principle, method, etc.

2) To adjust to some standard or requirement as for amount, degree, etc.

3) To adjust so as to ensure accuracy of operation.

4) To put in good order.

[obsolete sense]

b. Of troops: Properly disciplined. Obs. rare-1.

1690 Lond. Gaz. No. 2568/3 We hear likewise that the French are in a great Allarm in Dauphine and Bresse, not having at present 1500 Men of regulated Troops on that side.


http://tinyurl.com/2j6em6
11.20.2007 11:35am
Dilan Esper (mail) (www):
Steve, I am aware of the argument made by the NRA types that "well regulated" doesn't actually mean that the government can regulate the militia. I don't really buy that (partly because I am not wedded to original understanding, but also partly because "disciplining" the troops potentially INCLUDES regulating their keeping and bearong of arms), but I also don't think it matters, because even if the power to regulate isn't included in the term "well regulated", it is included in the term "milita".

The history of militias at the time of the enactment of the Second Amendment is that the government had the power to organize them, discipline them, call them up, train them, keep track of them, arm them, and send them into battle. In other words, the Second Amendment protects the right to keep and bear arms against a backdrop of unquestioned state power to regulate the militia. A person who wants to argue, for instance, that gun registration is unconstitutional would have to explain how it really would have been illegal for the government in the 18th century to take a census of adult males (i.e., members of the militia) and find out what guns they kept and bore so that the resources of the militia could be effectively marshalled during an emergency.

A lot of gun rights types have a vision of what they would LIKE the Second Amendment to do, i.e., strike down all gun control favored by the left while leaving intact regulations not opposed by the right (e.g., restrictions on felons owning guns, etc.). But that's not what the Second Amendment actually does. Lots of things that drive the NRA bats are clearly permitted, even though the provision certainly protects an individual right.
11.20.2007 6:14pm