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Pipe Bombs Unprotected by the Second Amendment:

So holds the U.S. Court of Appeals for the Eleventh Circuit, in United States v. Tagg: "Unlike the handguns in Heller, pipe bombs are not typically possessed by law-abiding citizens for lawful purposes." (There's more, so if you're interested, check out pp. 10-14 of the opinion.)

The general analysis strikes me as right, for reasons I discussed in my article (at least as to the right to bear arms in self-defense, which is all I focused on). But I do think the reasoning in this sentence (from a case quoted in footnote 5) is not quite right:

[W]e cannot conceive of any non-violent or lawful uses for a pipe bomb.

Of course there are non-violent uses for a pipe bomb, uses that would be lawful except for the illegality of pipe bombs. One can have fun blowing them up, quite possibly fun that is relatively safe, much like people have fun with fireworks or with potato guns, or much like people have fun firing guns at pieces of paper, even without any desire to train or to compete. ("[W]e cannot conceive of any ... lawful uses for a pipe bomb" must refer to something more than just the fact that pipe bombs are illegal, or else one could equally well have said it about a total ban on all guns or on handguns, given that possessing them would then no longer be lawful.)

Now it may well be that such entertainment uses of pipe bombs are not socially valuable enough to justify allowing their private possession; that's a plausible argument, and it might even be what the court was driving at. But the court made its argument not by discounting entertainment value, but by pretending that it doesn't exist.

For my criticism of a similar factual error in the First Amendment context (as to the murder manual case, Rice v. Paladin Enterprises), see PDF p. 26 & n.124 of my Crime-Facilitating Speech article. Again, this doesn't necessarily tell us how highly we should value such entertainment. Perhaps it's proper to ban books, weapons, drugs, or whatever else that pose sufficient risk of sufficiently serious harm, if their value seems to consist almost entirely of entertainment. As I said, I do think that pipe bombs are not protected by the Second Amendment or state constitutional right to bear arms provisions (at least by their right to bear arms in self-defense components).

But I don't think that we should find it so hard to "conceive of" people enjoying things that go "Boom!" If some nonviolent use is too frivolous to outweigh the harm that the bad uses cause, say so, but don't assume that such nonviolent uses don't exist.

ruuffles (mail) (www):

Before HULL, PRYOR and FAY, Circuit Judges.
FAY, Circuit Judge:

Clinton, Bush II (his only), Ford. According to fjc, Judge Hull's first name is Frank, but the judge is a woman.
6.30.2009 7:07pm
Monty:
I have never seen a good anwser to the question of how a standard based on weapons typically possessed by law-abiding citizens do anything but slowly contract? How could a new weapon ever be introduced if the government can ban it before introduction, and then argue that it is not a weapon typically possessed by law-abiding? They never had a chance to lawfully posses it.

It would make more sense to look to the weaponry available to the average infrantryman, we are talking about weapons approriate for arming a militaman afterall right? Thus, as technology changes, we look to what the government deems approriate as personal weapons.
6.30.2009 7:20pm
Leo Marvin (mail):

Pipe Bombs Unprotected by the Second Amendment

Another defeat for Joe the Plumber.
6.30.2009 7:37pm
rosetta's stones:
I sleep with a pipe bomb underneath my pillow. Most criminals think the worst they gotta deal with is a hail of 9mm, but if they break into my house, boy are they in for a surprise.
6.30.2009 7:43pm
Joe Kowalski (mail):
I would think that the distinction would follow the lines of "arms" being specifically defined as weapons that can be used while being held by a single person. A pipe bomb is not something someone would want to be holding when used, and thus isn't necessarily an "arm" one would have a right to keep &bear.
6.30.2009 7:54pm
cboldt (mail):
Heh -- another Circuit runs with "Miller was convicted," and "the 1934 NFA was upheld by the Miller case."
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Outcome oriented jurisprudence, all the way. "The Heller Court explained ...," is more honestly stated as "The Heller Court misread ..."
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The citation to Fincher (post-Heller case in the 8th Circuit) shows the power of dicta being converted to binding precedent.
6.30.2009 7:56pm
Kirk:
Leo Marvin wins best-of-thread!
6.30.2009 8:14pm
[insert here] delenda est:
Possibly, the Court meant, or intended, '[legitimate] use in the context of the Second Amendment'. It would be quite reasonable to hold that the Second Amendment has nothing to do with amusing oneself.
6.30.2009 8:35pm
Boose:
“...unlike firearms which may be used for sports, recreation or for collection, pipe bombs have no legitimate purpose."

When did the government get the power to decide what is a legitimate purpose of property?
6.30.2009 8:48pm
rimfire (www):
As a youth fifty years ago, we often did things that would have me in prison today.
My Cousin and I built a muzzle loader that would more correctly be called a small cannon. We tested it on the side of my Uncle's garage using marbles as a load on the theory that they would shatter on impact.
They did, just not on the first wall

We made pipe bombs to, only we called them fishing lures.
We never meant no harm, and had no criminal intent
6.30.2009 8:50pm
ChrisIowa (mail):
Rimfire is much, much older than I am.

When I was in junior high (only 45 years ago) a couple friends and I decided that it was time to graduate from Estes rockets and build our own. It was successful if it were considered a pipe bomb.

There are many things that are less entertaining.
6.30.2009 9:10pm
BeachBumBill (mail):
I guess that I am a literalist when it comes to the 2nd Amendment.

I believe that if you are a law-abiding citizen, then you may possess and use any weapon that you can afford. If you want a howitzer and can find room to shoot it, terrific. If you want to buy an old F-18 with missles, again, no problem. However, if you damage someone or something with your high powered weapon, you pay through the nose, whatever it costs.
6.30.2009 9:27pm
Doc Merlin:
"When did the government get the power to decide what is a legitimate purpose of property?"

As far as I can tell, thats pretty much all government does.
6.30.2009 9:29pm
Bill Poser (mail) (www):
Explosives have many legitimate uses, for some of which pipe bombs may well be a reasonable home-made solution. These include blowing up beaver dams, breaking up boulders, removing stumps, and destroying the burrows of such animals as moles and prairie dogs. It seems like the courts are getting too citified.
6.30.2009 10:15pm
Bill Poser (mail) (www):
Is it not improper for the court to make assumptions, on a matter on which it is obviously inexpert, without witnesses having been called, about a matter of fact such as to what uses pipe bombs may be put?
6.30.2009 10:18pm
David Schwartz (mail):
By this logic, why not ban racist speech? What possible useful purpose does it have?
6.30.2009 10:28pm
SFH:
BeachBumBill (mail):
I guess that I am a literalist when it comes to the 2nd Amendment.

I believe that if you are a law-abiding citizen, then you may possess and use any weapon that you can afford. If you want a howitzer and can find room to shoot it, terrific. If you want to buy an old F-18 with missles, again, no problem.


You must be very strong if you can bear a F-18.
6.30.2009 10:29pm
Anononymous314:
Lawful purposes? The main idea behind the ancient right to keep and bear arms is to enable the people to resist and overthrow tyrannical government. Would such a use be considered "lawful" by the State?
6.30.2009 10:33pm
Bill Poser (mail) (www):

The main idea behind the ancient right to keep and bear arms is to enable the people to resist and overthrow tyrannical government.


Although I am sympathetic to the principle, I am dubious as to the historical basis for this claim. In the ancient sources with which I am familiar, the purpose for keeping arms is self defense and defense of one's property, against both humans animals. I'm not aware of ancient justifications of the right to resist and overthrow tyrannical government.
6.30.2009 10:42pm
BRM:
Judge Frank Mays Hull is indeed a woman.

Couldn't someone use pipe bombs to excavate land they own? Or do their own mining?
6.30.2009 10:45pm
David Schwartz (mail):
Although I am sympathetic to the principle, I am dubious as to the historical basis for this claim. In the ancient sources with which I am familiar, the purpose for keeping arms is self defense and defense of one's property, against both humans animals. I'm not aware of ancient justifications of the right to resist and overthrow tyrannical government.
Fortunately, we don't need to speculate. The second amendment includes its own justification, "A well regulated Militia, being necessary to the security of a free State..."

So, yes, the point is self-defense and defense of one's property. But not by arming the government's army -- because that will result in a State that doesn't stay free.
6.30.2009 10:50pm
MindBuilder:
Joe Kowalski wrote:

I would think that the distinction would follow the lines of "arms" being specifically defined as weapons that can be used while being held by a single person. A pipe bomb is not something someone would want to be holding when used, and thus isn't necessarily an "arm" one would have a right to keep &bear.

Backpack nuclear bombs, chemical weapons, biological weapons, shoulder launched anti-aircraft missiles, anti-tank grenades, and claymore mines, are all readily carried by the individual soldier.

The Second Amendment was originally intended to protect the right to have any type of arms, including at the time: cannons, battleships, truck bombs(wagon loads of gunpowder), and more. At the time, Tench Cox wrote:

Their swords, and every other terrible implement of the soldier, are the birthright of an American.

The Second Amendment is obviously obsolete, as the Heller majority acknowledged. But the majority picked the absurdly circular "in common use" test. The proper test is based on the simple question: Why don't we want chemical weapons sold at the corner gun store? The answer is obviously that we don't want the occasional madman to go buy some and murder a bunch of innocent people. But the court will tolerate the occasional madman going to buy a pistol and killing a bunch of innocent people. What's the difference? The size of the bunch. That's the only difference, and that's what the test should be based on.
6.30.2009 10:51pm
Arturito:
Maybe the Court would have benefited from some research: Just go to youtube and search for "pipe bombs".

Some of these videos revive my old wonder at the fact that I survived past my teens.
6.30.2009 11:24pm
Bill Poser (mail) (www):

Fortunately, we don't need to speculate. The second amendment includes its own justification,


Sorry, no. The question was about "the ancient right". 1791 is not "ancient". You'll need to look a thousand years or more earlier.
6.30.2009 11:57pm
Allan Walstad (mail):
Cases like this highlight the need for the Supreme Court eventually to come to grips with where and on what basis to draw lines. It has to come down to the purpose of 2A. It should not be, as others have pointed out, merely what's in common use or throwaway lines about "no non-violent or lawful uses." Effective weapons tend to be violent, and a Constitutional right can't be interpreted with complete deference to already-passed legislation, not if it is to allow for the possibility of overturning same.

As I've tried to point out in other posts, the "security" of a free state surely includes--and perhaps consists mainly or solely of--the security of all the individuals therein. That is why small arms for self-defense must fall under 2A. The defense against tyranny, whether externally or internally imposed, falls under the same rubric. I believe it is sufficient for that purpose that the population generally possess small arms. I don't have a magic formula for where "small arms" ends.
7.1.2009 12:20am
BeachBumBill (mail):
SFH,

You must be very strong if you can bear a F-18.

Perhaps you could say that one wears an F-18 and thus 'bears' it. :-)

BBB
7.1.2009 12:49am
Jim at FSU (mail):

Heh -- another Circuit runs with "Miller was convicted," and "the 1934 NFA was upheld by the Miller case."
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Outcome oriented jurisprudence, all the way. "The Heller Court explained ...," is more honestly stated as "The Heller Court misread ..."
.
The citation to Fincher (post-Heller case in the 8th Circuit) shows the power of dicta being converted to binding precedent.

If the SCOTUS doesn't intervene and at least give some guidance on the scope of the 2nd amendment, Heller will be a dead letter within the next 5-10 years. And the main block to that is that the court seems to have gotten stuck on the National Firearms Act (NFA). I think they're so instintively wary of invalidating old federal laws that it's blocking them from seriously evaluating the meaning of the 2nd amendment. I think this is a serious mistake.

The fundamental problem is that the NFA draws a bunch of bright lines right through areas that are pretty obviously protected by the 2nd amendment. For example, why should short barreled rifles be illegal while rifles and pistols are both legal? Is putting a shoulder stock on a pistol really worth punishing with 10 years in prison? Why should an AR-15 (a popular semi-auto rifle) with a 3 round burst capability be illegal while an AR-15 without it is completely legal?

Try and come up with a constitutional justification for most of the provisions of the NFA and you'll realize you can't do it without sounding like an idiot. For example, if you can get the Supreme Court to say that handguns are protected (as in Heller), there's no way they can justify banning short barreled rifles and shotguns.

But the NFA has been around for so long (since the 1930s) that it's become a sort of background scenery- everyone in the shooting sports just accepts that it is there and deals with it. As a result, no one really has begun asking serious questions about the NFA and its irrational line drawing. I think the ATF would get it's panties into a bunch, but the supreme court really should take a hard look at the National Firearms Act. There is a lot of garbage in there that would serve as useful fodder for articulating the bounds of the 2nd amendment.

All this being said, I think things overall are definitely moving in the right direction on the gun issue. The idea of handgun or "assault weapon" bans are pretty much out of the question and there are only a few localities where carrying guns in public is forbidden. I think things will only get better for gun owners over the next 20-30 years.
7.1.2009 1:04am
Jim at FSU (mail):
One thing I should point out is that the F-18 is not a weapon, it's a vehicle. One bears the weapons of an F-18 by flying around in it. Also, vehicle mounted weaponry was well known at the time of the founding in the form of canon-armed frigates. It wasn't controversial then, it shouldn't be now.

From a policy standpoint, the main bar to the misuse of these big systems isn't their illegality (they aren't illegal) it's the fact that they cost millions of dollars. No one who can afford them can afford to misuse them, not even accidentally.
7.1.2009 1:11am
Matthew Carberry (mail):
Why should mere pipe bomb possession, hell, possession of almost anything, be criminalized for private citizens in the first place?

There is a current regulatory structure in place for commercial explosives that seems to do quite well in preventing accident or misuse by demolitions companies.

Regulations on secure safe storage (a pipe bomb is not a "need for immediate personal self-defense" type weapon), transportation and lawful use (must be a safe distance from bystanders, on private property or lawful range, etc)) would accomplish the same public safety goal without the need to preemptively criminalize non-inherently dangerous behavior. Making and safely using improvised explosive devices isn't rocket science.

If someone breaks a reg or does exactly what they can do now and makes one for criminal purposes then punish that behavior at that time.

It's not like the current regulations will stop anyone who wants to use a bomb to commit multiple felonies from doing so. Does anyone really believe one additional felony for making a bomb will deter someone who intends to murder dozens?

It's asinine logic.
7.1.2009 2:37am
cboldt (mail):
-- I think they're so instintively wary of invalidating old federal laws that it's blocking them from seriously evaluating the meaning of the 2nd amendment. --
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Broaching the misconstruction of Miller as it applies to short barrel shotguns/rifles and select-fire small arms opens a huge can of worms. The District and Circuit Courts have been misusing Miller for years, to incarcerate citizens. See too, Ruby Ridge and Waco, each of which was rooted in an NFA violation.
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I predict SCOTUS will let the District and Circuits continue the dirty work of misconstruing Miller. Watch the Hamblen case in the 6th Circuit. Heller gave a helping hand to the misconstruction, by asserting a read of Miller that has it (Miller) upholding the 1934 NFA as applied to short barrel shotguns and M-16's.
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I further predict that the "progress" on 2nd amendment rights will, at most, be SCOTUS holding that individuals may possess a handgun at home, subject to obtaining a government permit. The only protection the 2nd amendment will afford is an outright "ban." Abortions will continue to have more protection that RKBA.
7.1.2009 6:53am
Houston Lawyer:
I would think that any weapon in normal use by our soldiers would be covered by the second amendment. The "pipe bombs" are not generally in possession of the law abiding public argument is completely circular.

In the late 50s my uncle (later a chemist) and his buddies mixed their own gunpowder and set off a bomb behind the jail at midnight on Halloween. No property was damaged, but he would be jailed as a terrorist under current law.

Next they will make potato cannons illegal.
7.1.2009 9:52am
Mikee (mail):
In Texas a spud gun is legal for “pyrotechnic display” uses but not for shooting projectiles. Because projectiles can hit things, but noises and flashes are just good fun. Texas law is quite sane in some ways.

I don’t know the laws about blowing up 2 liter Coke bottles with dry ice, but it sure was loud the one time I did so (many, many, many years ago) as a test for a Chemistry demonstration. Too loud to use indoors, to say the least.

How about other loud but innocuous things? Hydrogen balloons set off with a fuse go bang real well. Even powdered sugar or flour can make a cool fireball.

I would argue that harmless noisy fun, performed in a safe manner by sane, non-intoxicated, intelligent persons, is just fun.

Not everyone gets a BATFE license to use Boomerite, but to BOOM legally is indeed fun.
7.1.2009 10:28am
Mikee (mail):
In 1975, as a seventh grade student in a parochial elementary school, I was not at all surprised when Sister Mary John let us make gunpowder for a science show &tell project.

Charcoal, sulfur, and potassium nitrate were hand ground using a mortar and pestle. The resulting blended material was ignited on a sheet of aluminum foil by the good sister, resulting in a fine sparkly display (she knew loose powder burns, rather than exploding).

Every child in the class was delighted and learned something that day.

Is it in any way progress that the above is likely a felony for all involved should they try it today?
7.1.2009 10:38am
Losantiville:
Eugene,

I'm sure that Jewish partisans in the forests of Poland during WWII had lawful uses for pipe bombs. A pipe bomb is just an improvised grenade. Certainly a personal weapon with military uses.

Not purely recreational.

Note to commentators: homemade black powder (it's not an explosive device until it's in a sealed pipe) and cannons are legal and if (cannons are) not designed to fire fixed ammunition they are not restricted by the FFA.

---
Abba recruited Jews for his partisan unit from the Vilna ghetto by telling them "I will not promise you that you will live, I will promise you that you will choose how you will die." In fact, most of his partisans survived the war whereas most of the Jews who remained passively in the Vilna ghetto died. A word to the wise. -- The Avengers : A Jewish War Story by Rich Cohen
7.1.2009 10:54am
oregontrail:
Can someone explain why 2nd amendment protections could possibly apply given that it hasn't been incorporated into the states? This seems to be the question the court should consider, or at least mention, before examining the implications of Heller.
7.1.2009 11:47am
cboldt (mail):
Can someone explain why 2nd amendment protections could possibly apply given that it hasn't been incorporated into the states?
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Two related points. First, the Court may have to address a 2nd amendment argument just because a defendant brought it up. Sometimes defendants bring up weird arguments. Presser asserted that the 2nd amendment protects a right to conduct armed parades on public property, without first obtaining a parade permit (he said the 1st amendment does, too).
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Second, it's possible that a right exists outside of being expressed in an amendment to the federal constitution. In particular, the RKBA may have roots and vitality that persist independently from the US Constitution.
7.1.2009 11:59am
Uh_Clem (mail):
I believe that if you are a law-abiding citizen, then you may possess and use any weapon that you can afford. If you want a howitzer and can find room to shoot it, terrific. If you want to buy an old F-18 with missles, again, no problem. However, if you damage someone or something with your high powered weapon, you pay through the nose, whatever it costs.


So when somebody buys a bunch of shoulder launched surface to air missiles, rents a house in the flight path of O'hare, and puts up banners that say "Death to America" we have to wait until he actually bring down a plane to do anything about it?

Good luck convincing very many people of your viewpoint.
7.1.2009 12:12pm
LarryA (mail) (www):
“...unlike firearms which may be used for sports, recreation or for collection, pipe bombs have no legitimate purpose.
This is the “sporting use” fallacy. The Second Amendment isn’t about fun. Even Heller held it was for self-defense.

This is a pernicious theory, given the gun control argument that recreational values don’t balance the harm that firearms do.
A pipe bomb is not something someone would want to be holding when used, and thus isn't necessarily an "arm" one would have a right to keep &bear.
You could say the same of a hand grenade, but they’re pretty common among infantry soldiers.
Couldn't someone use pipe bombs to excavate land they own? Or do their own mining?
That would not be a good idea. In a pipe bomb the pipe has two purposes, first to contain pressure caused by burning propellant until it rises to the level of an explosion, second to fracture into shrapnel. When using explosives to excavate it would be a lot better to drill a hole and pack the explosive charge in it without a pipe.
The answer is obviously that we don't want the occasional madman to go buy some and murder a bunch of innocent people. But the court will tolerate the occasional madman going to buy a pistol and killing a bunch of innocent people. What's the difference? The size of the bunch. That's the only difference, and that's what the test should be based on.
That’s a rather subjective test, given that the anti-gun crowd draws the line above pointy kitchen knives. I like the People can possess any type device used by local law enforcement standard.
In the ancient sources with which I am familiar, the purpose for keeping arms is self defense and defense of one's property, against both humans animals. I'm not aware of ancient justifications of the right to resist and overthrow tyrannical government.

Sorry, no. The question was about "the ancient right". 1791 is not "ancient". You'll need to look a thousand years or more earlier.
So we can look at history, but not learn from it? How about our own Declaration of Independence? That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. That is exactly how this country came to be.
7.1.2009 12:52pm
pete (mail) (www):
Don't some of the combat manuals the military issues include instructions for making pipe bombs and similar explosives?

That is not entirely on topic since this was about private lawful use, but I think our army expects at least some of its soldiers to know how to make improvised explosives if they need to.
7.1.2009 1:11pm
DennisN (mail):
Don't some of the combat manuals the military issues include instructions for making pipe bombs and similar explosives?


Such manuals have been published, and not being classified, are available for public consumption, although they are not sold by the Gummint. I don't recall the FM number.
7.1.2009 2:16pm
Jim at FSU (mail):

Broaching the misconstruction of Miller as it applies to short barrel shotguns/rifles and select-fire small arms opens a huge can of worms. The District and Circuit Courts have been misusing Miller for years, to incarcerate citizens. See too, Ruby Ridge and Waco, each of which was rooted in an NFA violation.

None of the past cases need be dredged up and reconsidered. They'd just have to stop enforcing those idiotic laws going forward. Yeah, it basically overturns Miller, but Heller overturned 90 percent of how Miller was construed over the past 60 years anyway. At least it seemed to at the time.

bunch of shoulder launched surface to air missiles, rents a house in the flight path of O'hare, and puts up banners that say "Death to America"

Restricting ownership of shoulder launched weapons near airports seems like it would pass strict scrutiny. Also, I don't think that anyone seriously meant we should do away with the NFA restrictions on explosive rockets and arty- keep them legal but require background checks and registration. I'm talking about getting rid of the bans on pistols with shoulder stocks, "unsporting" shotguns, smoothbore pistols, and the various other categories that pretty much instafail any coherent vision of the 2nd amendment's scope.

This is the “sporting use” fallacy. The Second Amendment isn’t about fun. Even Heller held it was for self-defense.

I almost forgot about this. It appears that despite Heller's clear self defense wording, a lot of the judiciary is still stuck in the old pre-Heller days of guns being unprotected if they either aren't "sporting" or they aren't "connected to militia duty." In other words, nothing is protected, right-asserting party automatically loses. And this is going to continue unless the Court renders guidance on the scope of the 2nd amendment. And soon.

This is exactly what's at work in the grenade pipe-bomb case- pipe bombs are obviously non-mass-produced fragmentation grenades. There's nothing functionally different between an ordinary grenade that is issued to every infantryman and a pipe bomb, which is basically just a the same thing with a less efficient explosive filler and a less user friendly trigger/fuse. The starting point should be that grenades are protected and then the government should have to prove that its restrictions pass the 3 part strict scrutiny test.
7.1.2009 2:20pm
Phatty:
@oregontrail

The reason the 2nd Amendment applied in this case is because a federal law was at issue, not a state law. Thus, it made no difference whether the 2A is incorporated against the states.

I have never seen a good anwser to the question of how a standard based on weapons typically possessed by law-abiding citizens do anything but slowly contract? How could a new weapon ever be introduced if the government can ban it before introduction, and then argue that it is not a weapon typically possessed by law-abiding? They never had a chance to lawfully posses it.
The common-use test is deeply flawed, but that is what happens when judges use results-oriented reasoning to formulate a test. For whatever reason, Justice Scalia (and possibly others in the Heller majority) is not a fan of machine guns and was concerned that by finding the 2A protected an individual right unconnected to a militia the Court would be opening the door to legalizing machine guns. Based on Miller, the logical test would be the 2A protects firearms that are commonly used by individuals in the military. Because the standard firearm used by members of the military today is a machine gun, Scalia did not want to use that test and had to come up with something different. So, he came up with the common use test, under the assumption that machine guns wouldn't qualify because they are not in common use (despite the fact that counsel for D.C. told him during oral argument that machine guns are commonly owned by citizens).
7.1.2009 2:25pm
cboldt (mail):
-- ... but Heller overturned 90 percent of how Miller was construed over the past 60 years anyway. --
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Only the "individual" vs. "collective" rights construction. The bottom line, the constitutionality of the 1934 NFA as applied to short barrel shotguns and select-fire firearms was upheld by the Heller majority, in direct contradiction to what the Miller case actually says.
7.1.2009 2:38pm
Brett Bellmore:
<blockquote>
That’s a rather subjective test, given that the anti-gun crowd draws the line above pointy kitchen knives.
</blockquote>

Take a look at England: They draw the line <i>below</i> pointy kitchen knives. Not going after them yet is just a tactical decision, to be revisited if they make some progress.
7.1.2009 3:15pm
CJColucci:
The starting point should be that grenades are protected and then the government should have to prove that its restrictions pass the 3 part strict scrutiny test.

Perhaps no one has noticed, but this is the preferred post-Heller stealth tactic of those who would like to get rid of the 2d Amendment entirely. Once you convince a substantial part of the population that the Second Amendment, properly construed, means that, then Constitution-sized majorities will say the Hell with it.
7.1.2009 3:52pm
ohwilleke:
Maybe somebody blows up pipe bombs for fun (or would) and maybe somebody hunts Buffalo with pistols, but both are exceedingly rare.

Also, can you "bear" a "pipe bomb," an issue separate and apart from the issue of whether it is pertinent to the core self-defense right recognized in Heller?

Most people personally handling a pipe bomb while detonating it, lose their arms.
7.1.2009 4:23pm
zippypinhead:
Next they will make potato cannons illegal.
Been there, done that. At least in D.C. There was even a Washington Post article while Heller was pending that discussed how, under D.C. law, a PVC-pipe and hairspray "spudzooka" is a prohibited "destructive device." Although when I tried to search for the article on the Washington Post's website, one of the "sponsored results" ads was for a company that specializes in manufacturing this particular type of weapon of mass spudstruction.

Maybe this ought to be Alan Gura's next lawsuit?

(link is to p.3 of the Feb. 19, 2008 WaPo article - scroll down to the discussion of the interaction between the MPD Firearms registration office and the "spudzooka team" from the uncivilized wilds of Manassas, Virginiatucky).
7.1.2009 4:26pm
Leo Marvin (mail):
Ah yes, the old slippery slope from kitchen knives to pipe bombs.
7.1.2009 4:50pm
Curious Passerby (mail):
Judge Frank Mays Hull is indeed a woman.

Her father must have wanted a son, like Obama's mom Stanley's dad.
7.1.2009 5:59pm
New Pseudonym:

Next they will make potato cannons illegal.


When they make potato cannons illegal, only potatoes will have cannons.

And ancient can mean only twenty years old (ancient lights) or thirty (ancient documents) or possibly old enough to be recorded in the Domesday Book (ancient desmene). Two out of three isn't bad for 1791.
7.1.2009 6:23pm
Dilan Esper (mail) (www):
Perhaps no one has noticed, but this is the preferred post-Heller stealth tactic of those who would like to get rid of the 2d Amendment entirely. Once you convince a substantial part of the population that the Second Amendment, properly construed, means that, then Constitution-sized majorities will say the Hell with it.

I'd put it a bit differently, but yes, there's an immense danger of overreach among many gun rights advocates here. Generally, the right to own a gun for your own protection (the right recognized in Heller) is very popular (and justifiably so).

But one of the strongest arguments that anti-Heller forces have is the same sort of slippery slope concern that often is deployed by gun rights advocates-- that all kinds of dangerous weapons that are the province of criminals and terrorists are going to get swept within the right Heller recognized.

Let me put it this way-- no American court is ever going to recognize a constitutional right to own a pipe bomb. And interpretative theories that do not come to grips with that fact are not going to work.
7.1.2009 6:34pm
Jim at FSU (mail):
Then we need interpretive theories that look deeper than the labels that the media assigns to weapons. If a scary name is all it takes to move a weapon outside the protection of the 2nd amendment, then we've already lost.

Criminals choose weapons from largely the same pool of gear as the law abiding citizenry. Terrorists and freedom fighters similarly mimic the equipment of LE and military services. At the end of the day, criminals and terrorists are far out numbered by law abiding gun owners. That criminals are choosing to avail themselves of certain weapons doesn't automatically mean they are deserving of prohibition.

Our framework needs to look at the harms sought to be prevented (presumably people running around setting off pipe bombs) and then examine the approach the government has taken to remedy that harm. Is the remedy narrowly tailored? Was it the least restrictive remedy that could have been used?

I personally think that restrictions on grenades, bombs and other area-effect weapons are very likely to pass such a test, but it isn't the test the court applied in this case. I'm not sure they applied any test at all. And I think that's what the post was originally about.
7.1.2009 8:28pm
Dilan Esper (mail) (www):
I personally think that restrictions on grenades, bombs and other area-effect weapons are very likely to pass such a test

You aren't going to get to such a test, because courts are not going to implement strict scrutiny for pipe bomb laws any more than they are going to invalidate them. (And for purposes of this discussion, I will assume past the question of whether gun rights advocates are ever going to get a strict scrutiny test applied for any aspect of the 2nd Amendment.)

To make an analogy here, it's kind of like a First Amendment zealot arguing that of course child porn laws are going to be found constitutional, because they are necessary to further a compelling state interest. Um, no, you don't understand-- actual child porn was inevitably going to be found to be unprotected speech, and we weren't under any scenario going to be subjecting child porn laws to strict scrutiny, even if they would pass it.

There's a lot of Pollyanna on the gun rights side, folks who don't seem to realize that there is a range of possible interpretations of the Second Amendment that courts might adopt and that interpretations that establish a constitutional right to possess things like bombs and the like do not fall within that range. That's the reality, and you have to come up with a plausible, reasonable interpretation that doesn't end up extending constitutional protection to things that courts aren't going to want to extend protection to.
7.1.2009 9:02pm
Kahr40 (mail) (www):

In the ancient sources with which I am familiar, the purpose for keeping arms is self defense and defense of one's property, against both humans animals. I'm not aware of ancient justifications of the right to resist and overthrow tyrannical government.


That would be the human animals running the tyrannical government.
7.1.2009 10:52pm
Jim at FSU (mail):

You aren't going to get to such a test, because courts are not going to implement strict scrutiny for pipe bomb laws any more than they are going to invalidate them.


Courts do not work that way.

You formulate the test.
Then you apply the test.
Then you get the result.

You're starting from the result and saying that the test isn't worth bothering with because it's a foregone conclusion that pipe bombs always lose.

FINE, pipe bombs lose. But you still have to show your fucking work. You have to give us a test that can be applied to any weapons law and arrive at the result something like "all handguns, rifles and shotguns protected, all pipe bombs not protected."

But the problem is that any sane test (that doesn't give judges near limitless discretion) that you apply to current federal law (let alone CA or DC law) is not going to result in the status quo because there's no coherent logical basis underlying current federal gun laws. A lot of the stuff you look at and it's either nonsensical or inconsistent with other federal gun laws. Short barreled rifle/shotgun regs are a prime example.

Over the past 80+ years they've added a law here a law there and a lot of it makes no sense unless you go into a very detailed political explanation of the time period when each piece of gun control was passed. Public policy was not a factor in formulating 99 percent of these laws.

For example, the 68 GCA was motivated by a mix of fear of armed blacks mixed with protectionism.
* The general idea behind the FFL system that was established in the late 60s was to make it easier for localities to choke off the supply of firearms by forcing them to travel through a limited number of businesses. Since it isn't permissible to make laws saying "black can't have firearms" they instead made laws wherever large numbers of black people lived saying "no one may have firearms."
* Anyone familiar with the pistol or semiauto rifle importation regulations will know exactly what I mean by protectionism. It's a law that blatantly forces gun manufacturers to set up shop in the US or not sell anything here. It's the reason glocks ship to the US with adjustable sights and serrated triggers- those are target shooting features to make the glock a "sporting arm."

So some of it is going to have to go.
7.2.2009 12:53am
cboldt (mail):
Courts do not work that way.
.
They aren't supposed to, but in 2nd amendment jurisprudence, that's exactly how they work. Outcome-oriented jurisprudence, logic and honesty go out the window.
7.2.2009 7:16am
zippypinhead:
They aren't supposed to, but in 2nd amendment jurisprudence, that's exactly how they work. Outcome-oriented jurisprudence, logic and honesty go out the window.
Well, as much as I hate to admit it, cboldt and Dylan pretty much nailed this point. If you don't believe that general Second Amendment doctrine is going to be judicially developed by courts that have one eye on the end result at all times, please re-read Justice Scalia's dicta about machineguns in Heller (and all the strategic twisting he did of Miller to come up with the useful-in-future-cases "common use" test).

If you want to create durable, pro-RKBA Second Amendment doctrine through the courts, you need to realize that in the short-term, pushing agendas like gun rights for felons, or for the unrestricted right to possess pretty much anything covered by the NFA (including pipe bombs) could end up being extremely counterproductive in the long run. Or to put it differently, it's best to follow a rule every toddler eventually learns: if you try to run before you can walk, you're going to end up falling flat on your face.
7.2.2009 12:54pm
Dilan Esper (mail) (www):
FINE, pipe bombs lose. But you still have to show your fucking work. You have to give us a test that can be applied to any weapons law and arrive at the result something like "all handguns, rifles and shotguns protected, all pipe bombs not protected."

Jim, I suspect that such a test will evolve out of Scalia's in common use test, and that such a test is in fact the Second Amendment's only hope-- because the alternative is going to be that Heller gets overruled as unworkable and replaced with a test that renders the Second Amendment inoperative.

But "pipe bombs survive strict scrutiny" isn't going to fly.
7.2.2009 1:20pm
LorenW:
But I don't think that we should find it so hard to "conceive of" people enjoying things that go "Boom!" If some nonviolent use is too frivolous to outweigh the harm that the bad uses cause, say so, but don't assume that such nonviolent uses don't exist.



1/2 the reason people watch Mythbusters is to see them blow things up! That's Entertainment!
7.2.2009 2:50pm
cboldt (mail):
-- If you want to create durable, pro-RKBA Second Amendment doctrine through the courts, you need to realize that in the short-term, pushing agendas like gun rights for felons, or for the unrestricted right to possess pretty much anything covered by the NFA (including pipe bombs) could end up being extremely counterproductive in the long run. --
.
The 1934 NFA, 1968 GCA, Lautenberg amendment, etc. have been rendered fully constitutional, period, after Heller turned Miller inside-out. Federal Courts forbid arguing the point (presenting the Miller case) to the jury, and this has (post-Heller) been upheld by the Circuits. I believe that the federal courts will find nearly all current and future restrictions, qualifications and limitations to be permissible, rejecting only those that are outright bans.
.
I don't think arguing against any particular restriction, qualification or limitation will be counterproductive. I think the pipe-bomb defendant was making a reasonable argument, and I don't think that his doing so creates any risk of setback as to any other restriction, qualification or limitation.
.
While I don't think the arguments would be counterproductive, I think arguing to a court that a restriction, qualification or limitation on RKBA is unconstitutional is an exercise in futility. The Courts are going to continue to uphold legislated limitations on RKBA.
7.2.2009 3:30pm
CJColucci:
I don't think arguing against any particular restriction, qualification or limitation will be counterproductive.

The arguments won't be counter-productive unless they win. If a court rejects the argument that the Second Amendment protects pipe bombs, nothing happens. If courts start ruling that it protects pipe bombs, flame throwers, and the like, then the Second Amendment itself, not its interpretation, will be put into question.
7.2.2009 4:36pm
Dilan Esper (mail) (www):
I believe that the federal courts will find nearly all current and future restrictions, qualifications and limitations to be permissible, rejecting only those that are outright bans.

Cboldt, here are some examples of restrictions short of outright bans that I could see falling post-Heller:

1. Bans on guns in public housing.
2. Assault weapons bans (especially where the characteristics that result in a weapon being defined as an assault weapon have little to do with dangerousness).
3. Stripping the right away from criminals convicted of non-violent offenses. (I think that the gun rights advocates are barking up the wrong tree with respect to domestic violence; those laws are probably going to get upheld. But how about if, say, a fully rehabilitated ex-con who was convicted of bank fraud seeks a restoration of his Second Amendment rights in a state that bars all felons from ever possessing a firearm? I could see such a challenge winning.)
4. Very aggressive trigger lock, storage, and similar requirements that have the effect of potentially disabling the gun when it is needed.
5. Jurisdictions that make it basically impossible for a citizen to carry EITHER openly or concealed.

There may be others; these were just things I thought of off the top of my head.
7.2.2009 4:39pm
zippypinhead:
how about if, say, a fully rehabilitated ex-con who was convicted of bank fraud seeks a restoration of his Second Amendment rights in a state that bars all felons from ever possessing a firearm? I could see such a challenge winning
Assuming incorporation, of course. Although there's a similar Federal issue with Congress' defunding of DOJ/BATFE operations to restore rights per the relief from disabilities procedures of 18 U.S.C. §925(c).

And note that 18 U.S.C. §921(20) already exempts from the felon-in-possession disability white collar criminals convicted of an antitrust or similar "business practices" felony. There's probably an argument that the the legislative distinction between "business practices" felonies charged under Title 15 (where the antitrust and securities laws are found) versus the identical conduct charged under Title 18's wire fraud, bank fraud, etc., statutes fails under a heightened standard of review.
7.2.2009 6:00pm
Dilan Esper (mail) (www):
Oh, here's another one:

6. Certain sorts of "gun free zones". I suspect the courts will uphold security perimeters in sensitive places like courthouses (for obvious reasons), airports, etc. But some jurisdictions may very well have local equivalents of the gun-free school zones statute that was struck down on federal power grounds in Lopez. This may very well play out in a similar manner to "special needs" searches like sobriety checkpoints in the 4th Amendment context-- where there is a specific security need shown, a perimeter may be upheld, but where there is nothing more than a general interest in crime control, it may get struck down.
7.2.2009 6:24pm
cboldt (mail):
-- some jurisdictions may very well have local equivalents of the gun-free school zones statute that was struck down on federal power grounds in Lopez. --
.
You are aware that Congress rewrote the GFSZ Act following the recipe set out in the Lopez decision. The basis for Lopez was a commerce clause deficiency, since cured with the words "or affecting."
.
There have been GFSZ Act convictions post-Lopez.
.
In short, the Courts are not offended by the principle of gun-free school zones. The only offense (to the Courts) was that the statute recited a need for the weapon itself to have been in interstate commerce. That deficiency cured, prosecutions resume.
7.2.2009 6:51pm
Dilan Esper (mail) (www):
cboldt, the issue now is the 2nd Amendment, not the Commerce Clause. And I am saying-- quite tentatively-- that I suspect, post-Heller, that "gun free zones" are going to run into some 2nd Amendment problems if they don't relate to a particular showing of a security need.
7.2.2009 6:54pm
cboldt (mail):
-- I suspect, post-Heller, that "gun free zones" are going to run into some 2nd Amendment problems if they don't relate to a particular showing of a security need. --
.
Good point, and I hadn't considered Lopez in that light. So, I looked at Lopez for clues. The Lopez decision itself accepts the power of the government to create "safe zones," and was more concerned with difficulty in applying overlapping fed/state zones of potentially differing size.
The tendency of this statute to displace state regulation in areas of traditional state concern is evident from its territorial operation. ... In some communities no doubt it would be difficult to navigate without infringing on those zones. Yet throughout these areas, school officials would find their own programs for the prohibition of guns in danger of displacement by the federal authority unless the State chooses to enact a parallel rule.
US v. Lopez

Not to say the feds would reject a challenge to GFSZ on 2nd amendment grounds, but I see no indication whatsoever of a fed inclination to be against any restriction short of an outright, blanket ban on all handguns, rifles and shotguns.
7.2.2009 7:34pm
Dilan Esper (mail) (www):
Didn't Thomas concur in Lopez and indicate that he thought the case might raise Second Amendment issues?
7.2.2009 8:41pm
cboldt (mail):
-- Didn't Thomas concur in Lopez and indicate that he thought the case might raise Second Amendment issues? --
.
I linked the Lopez case above, within the blockquote. To the first part of your question, "yes," Thomas did concur. As to the second part, my read of his concurring opinion finds only a jurisdictional argument. I don't see any hint that a GFSZ is inappropriate as a matter of police power, only that it is inappropriate to impose from the federal level.
7.2.2009 9:12pm
cboldt (mail):
Thomas discussed the 2nd amendment in a concurring opinion in Prinz v. US, 521 U.S. 898 (1997). I read more "jurisdictional limitation" into his statements in Prinz, than I read a limitation of the power of state governments.
If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme [here, a background check requirement imposed on the states by the feds], at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections.
7.2.2009 9:28pm
pintler:

2. Assault weapons bans (especially where the characteristics that result in a weapon being defined as an assault weapon have little to do with dangerousness).


That's an interesting question. Here's a couple of thoughts:

1)I sometimes compete in a match format called 'PPC'. It essentially makes a match out a police qualification test - from the holster, varied ranges, left/right barricade and notably, reloading on the clock. It's the same course of fire whether you use an auto or revolver, but the scores are reported separately. The revolvers usually win. You could say that that is because autos are restricted to loading 6 rounds per magazine, but...

2)I have taken defensive shooting courses where people had autos ranging from 8 to 19 round magazines. Some of the people with 19 round magazines were very good, and some of the people with 8 round guns were not so good, but overall my sense was that the people with smaller capacity guns put more holes near the center of the target faster than people with large capacity guns.

So what makes one gun more dangerous than another? In terms of physical characteristics, my sense is that considerations of capacity and caliber are insignificant compared to the competence of the shooter, and you can hardly outlaw good marksmanship.

With rifles, people talk about 'high power' (which is a bit silly if you're ever seen a .223 and 30.06 cartridge next to each other), pistol grips, flash hiders, and bayonet mounts. It seems unclear that crooks armed with e.g. a lever action 30-30 would be particularly disadvantaged.

There is a psychological argument - that someone with an AK is more likely to commit a crime than someone with a 30-30, because that's what they saw used in a movie, or because they read at vpc.org that AKs were exceptionally deadly or whatever. It would be analogous to arguing that people with mag wheels or racing stripes are more prone to accidents (not that cars with racing stripes are over represented in wrecks, but that people driving sporty cars are more dangerous than if they had to drive Volvos).

I think Dilan is right; post Heller all this stuff needs to be decided. I hope the decision is based on data rather than assumptions.
7.2.2009 11:08pm

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