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Radio Debate on the Second Amendment:

From 10:06 to 11 Pacific this morning, I'll be on KPCC-FM (89.3), a local public radio station, talking about the Second Amendment with the host, Larry Mantle, and Erwin Chemerinsky, who'll be on the other side. (Someone else will be filling in for Erwin after the half hour.)

The show will be taking listener calls, so if you'd like to call (at 866-893-KPCC [5722]), please do. The program is also available on live streaming audio.

Dilan Esper (mail) (www):
Chemerinksy's position seems ridiculous. He says it might be an individual right, nonetheless it is subject to reasonable regulation, and the DC statutes are reasonable because of an analogy to property rights and the fact that the government can prohibit the possession of property despite the existence of property rights.

But property rights are a lot different than a specific provision that says you have the right to keep arms. That doesn't seem consistent with the view that the government can prohibit you from keeping arms at all.

This is why, if you think that the DC gun ban is constitutional, you almost certainly need the collective rights view. If the 2nd Amendment does not create an individual right, then a ban is constitutional. But if the 2nd Amendment protects an individual right, the only thing that you have left in defense of the DC gun ban would be an argument that very light scrutiny is all that is required and limiting people to keeping unloaded shotguns is reasonable.
11.21.2007 1:46pm
W. J. J. Hoge:
If the government can prohibit my possession of a firearm without infringing on my Second Amendment rights, could it not also prohibit my possession of a Bible without infringing on a First Amendment right? Both items are merely property.
11.21.2007 2:05pm
Ralph Phelan (mail):
Remind me again why people put so much effort into helping Chemerinsky keep his new job?
11.21.2007 2:20pm
Dilan Esper (mail) (www):
Remind me again why people put so much effort into helping Chemerinsky keep his new job?

If having ever made an unpersuasive argument were a disqualification for becoming a law school dean, there would be very few people eligible for the position.
11.21.2007 2:35pm
Cornellian (mail):
Presumably the government must have some ability to regulate the possession of firearms. No one seems to dispute, for example, that the government could prohibit a convicted murderer from owning firearms even though that's a restriction on firearms ownership. The problem with just saying the government can impose reasonable regulation on firearms possession is what is the scope of the term "reasonable?" I'd have to see some basis for determining the content of that term other than "what seems reasonable to 5 Supreme Court justices" before I could sign on to that approach.
11.21.2007 4:00pm
Pius XXX:
КПСС-FM? Cali's awesome... :)
11.21.2007 4:22pm
Dilan Esper (mail) (www):
Presumably the government must have some ability to regulate the possession of firearms. No one seems to dispute, for example, that the government could prohibit a convicted murderer from owning firearms even though that's a restriction on firearms ownership. The problem with just saying the government can impose reasonable regulation on firearms possession is what is the scope of the term "reasonable?" I'd have to see some basis for determining the content of that term other than "what seems reasonable to 5 Supreme Court justices" before I could sign on to that approach.

That problem exists with any level of scrutiny short of a total prohibition on something. And as you said, a total prohibition on any firearms regulation isn't supported by anyone, including the NRA. (Plus, in truth, even total prohibitions just shift the argument; Justice Black styled himself a First Amendment absolutist but then had a narrow attitude about what constituted "speech" and what didn't.)

I don't think there is a snowball's chance in hell that the Supreme Court adopts strict scrutiny in the 2nd Amendment context, but even if it did, judges who wanted to uphold gun controls would be able to find that they were necessary to serve compelling state interests. Similarly, the Court could adopt rational basis review and judges who wanted to strike them down could find that they were irrational.
11.21.2007 4:42pm
Cornellian (mail):
Well yes, there's a certain elasticity in the "levels of scrutiny" approach as well, but at least we have the benefit of a lot of case law that gives one a rough idea of how things will go in 14th Amendment equal protection cases. It's hard to predict how "reasonable regulation of gun ownership" would turn out as it's hard to analogize that to equal protection. "Reasonable" could encompass nearly anything or nearly nothing.
11.21.2007 5:46pm
Kazinski:
A Supreme Court that defines nude dancing and flag burning as speech should narrowly define reasonable regulation. Now that doesn't mean no regulation, for instance the courts have held that a 4 foot buffer between nude dancers and patrons is reasonable; I'm not aware of any test cases but a court may well find that a requiring a permit and possession of a fire extinguisher, and banning the use of accelerants is a reasonable regulation for flag burning.

How would this reasonable regulation apply to guns is of course undefined, they may well require trigger locks, training, etc. I got a feeling that even if the supreme court finds and individual right, they'll allow the authorities to make it inconvenient to exercise that right, but well short of an outright ban.
11.21.2007 5:51pm
JunkYardLawDog (mail):
If they find an individual right to keep at one's home. The next case will be over mandatory as opposed to discretionary issuance of permits to bear those arms. After all its "keep and bear".

Many states have moved in the past 20 years to a mandatory permit to carry system, which removes from local politicians the right to play games by approving permits for their buddies and those who guard the property of the rich, and dening permits to the middle class and poor and not connected to the politically powerful. If the Supremes actually uphold the constitution (as opposed to issuing yet another unconstitutional decision) then someday all states should be forced to a mandatory permit to carry system.

Mandatory systems can require background checks, training, etc., but it must be done on an objective basis as opposed to the subjective whims of some bureaucrat.

Says the "Dog"
11.21.2007 6:11pm
JunkYardLawDog (mail):
It should also be noted that states who move to mandatory permit to carry systems experience a decrease in crime rates.

Says the "Dog"
11.21.2007 6:13pm
Kazinski:
Dream on Dog,
As far as I know, no court has ever found a right for concealed carry based on the 2nd amendment, it has always been granted explicitly either in the state constitution or by statute.
11.21.2007 6:26pm
JxR:
One of the gun control laws that has been suggested as perhaps being reasonable, is registration of all guns.

If the court upholds the individual right view, isn't there enough precedent on other rights, that such registaion would have to be free to the registrant?
11.21.2007 6:28pm
Tom Bosworth (mail) (www):
If the provison that no handgun may be possessed in DC which was not registered in 1976 is struck down, what effect, if any, would that decision have on the fed law prohibiting possession of any Class 3 (full auto) weapon which was not registered by 1986?
11.21.2007 6:42pm
Dilan Esper (mail) (www):
The next case will be over mandatory as opposed to discretionary issuance of permits to bear those arms.

Aren't you eliding the difference between open carry and concealed carry? "Bearing arms", in 1791, meant bearing them openly, right?
11.21.2007 6:43pm
Clayton E. Cramer (mail) (www):

Aren't you eliding the difference between open carry and concealed carry? "Bearing arms", in 1791, meant bearing them openly, right?
No. There are no laws against concealed carry in the United States until Kentucky's 1813 statute, struck down in Bliss v. Commonwealth (Ky. 1822) for violating the Kentucky Const. provision. See my book Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999).

You can even make a weak argument based on the common law prohibition on carrying arms to the terror of the people that concealed carry was more protected than open carry.
11.22.2007 12:38am
Brooks Lyman (mail):
"Bearing arms" may have meant openly in 1791, and even today (or at least in the past few years), in some western states, open carry is allowed while concealed carry is not. But in many places, people are so unaccustomed to open carry that they become fearful when they see someone other than a uniformed policeman or soldier carrying a handgun openly in a holster.

Here in MA, a License to Carry means concealed carry, whether on one's person or in a gun case; open carry other than on one's own property, or while hunting or on a shooting range can lead to revocation of one's license. And since in MA, one needs the license to even possess a gun (why do you think we have a rising crime rate here?) at home, losing the license means losing your guns.
11.22.2007 12:38am
Clayton E. Cramer (mail) (www):

One of the gun control laws that has been suggested as perhaps being reasonable, is registration of all guns.

If the court upholds the individual right view, isn't there enough precedent on other rights, that such registaion would have to be free to the registrant?
You can make an argument that registration doesn't infringe on the rights of the law-abiding. There were various attempts to record how many guns are present in communities in preparation for war, and of course, there are mandatory gun ownership laws as well.

There aren't really any gun registration laws in 1791. There isn't even any clear way to identify who a gun belongs to, except by detailed descriptions of names carved into stocks, and little quirks of the design. My book Armed America gives examples of the struggles that some of the colonies go through trying to enforce the various gun control laws of the time because of this.

However: most people don't realize that while gun registration is reasonable regulation, the Supreme Court has already ruled that convicted felons, psychotics, and anyone else who can't legally own a gun is exempt from gun registration. Haynes v. U.S (1968) found that punishing people who can't lawfully own a gun for failing to register a gun violates their Fifth Amendment right against self-incrimination. The only people that mandatory gun registration applies to are those who aren't the problem.
11.22.2007 12:44am
Steve in CT (mail):
Kazinski, I think the Dog was implying that any firearms laws that pass the scrutiny test should be equally applied across the population. Laws that exist in cities like NYC only allow handguns for the rich and/or famous. Shall issue type concealed carry mandates that permits be given out to any law abiding citizen after fulfilling the application process. Laws requiring registration or permits to own a firearm should require proof on the states part that an individual should not be allowed to purchase or own.

On another note, can anybody put forth a good argument for how registration will reduce crime? At best, if you require firearm registration every time a firearm is sold, including private sales, you will only learn who the last lawful owner was. This may allow prosecution if the last owner illegally sold the firearm, but how many crimes might that prevent? The only purpose I can see for registration is so the government knows where they are when they decide to come pick them up. Again, that would only work for those law abiding citizens who purchase them thru the proper channels, not criminals.
11.22.2007 3:26am
Clayton E. Cramer (mail) (www):

On another note, can anybody put forth a good argument for how registration will reduce crime? At best, if you require firearm registration every time a firearm is sold, including private sales, you will only learn who the last lawful owner was. This may allow prosecution if the last owner illegally sold the firearm, but how many crimes might that prevent?
The only way in which registration might actually make a difference is to prosecute people for unlawful transfers of firearms. I think that if done consistently, with heavy fines for those who do so, it might discourage unlawful transfers, since I presume that most of those doing so are financially motivated.

What concerns me is the potential for later confiscation. A clear statement that the government does not have the authority to disarm the general population might make registration and a requirement for all guns to transferred with a paperwork trail more tolerable. And the agitation for banning guns, or trying to bankrupt the manufacturers, has to stop.
11.23.2007 10:27am
NickM (mail) (www):
Registration would have actual beneficial use if the government were operating a militia. It helps to know what each person called up can be expected to bring with him.

Nick
11.24.2007 5:48pm