pageok
pageok
pageok
Northwestern U.L.Sch. 2009 Firearms Law & The Second Amendment Symposium:

To be held this Saturday, 9 a.m. to 3 p.m. Cosponsored by the Northwestern University Law School chapter of the Federalist Society and the NRA Foundation.

Panel 1 is 9-10:30, on "Second Amendment Law and the Practicioner." Speakers are Christopher Conte, Richard Gardiner, Ken Hanson, and Willam Howard.

Panel 2 is 10:45-12:15, "The Second Amendment and Constitutional Interpretation." Speakers are Nelson Lund, Allen Rostron, and me. I will be speaking about the Second Amendment in the Living Constitution.

The final panel is "The Scope of the Second Amendment," with Nicholas Johnson, Michael O'Shea, and Clayton Cramer, 1:30-3.

Some recent interesting scholarship by the panelists includes:

Rostron: Incrementalism, Comprehensive Rationality, and the Future of Gun Control, Maryland Law Review, Vol. 67, No. 3, 2008--an explanation of how federal gun laws have been created incrementally, with the resulting product not being particularly coherent or rational. Cease Fire: A 'Win-Win' Strategy on Gun Policy for the Obama Administration, Harvard Law & Policy Review, Vol. 3, No. 2, 2009. Obama should say that he will support new legislation which advances gun control AND gun rights. Roston provides a menu of gun control choices which he argues will have little if any effect on law-abiding gun owners, plus a list of gun rights proposals which have been offered in Congress recently. A bill which contains items from both Column A and Column B would best reflect American public attitudes, he argues.

O'Shea: The Right to Defensive Arms After District of Columbia v. Heller, 111 West Virginia Law Review 349 (2009). Outstanding explanation of the civic vs. personal firearms right strands in Miller and Heller, and the implications of Heller's decision to give priority to personal use.

Lund: Heller and Nonlethal Weapons, Hastings Law Journal, Forthcoming. Heller's "common use" test for permitted arms could allow a government to stifle innovative firearms. (The O'Shea article also addresses this issue.) The Court should abandon the "common use" dicta, and instead apply the principle of Kyllo v. United States that the Constitution keeps up with technological development. This is particularly important in light of new non-lethal defensive arms which may become available.

Cramer: Gun Control: Political Fears Trump Crime Control, Maine Law Review, 61:1[2009] 57-81. Great Britain's Firearms Act of 1920 was mainly enacted in response to fears of political unrest, involving suffragettes, trade unionists, Irish, and (especially post-WWI) Commununists and the lower classes in general.

Johnson: Imagining Gun Control in America: Understanding the Remainder Problem, Wake Forest Law Review, Vol. 43, 2008. Even without the impediment of Heller, many supply-side gun controls could be nearly impossible to implement effectively. Proposals regarding registration, special restrictions on gun shows, gun rationing (e.g., "one gun a month"), ballistic fingerprinting, and smart guns are examined in light of the remainder problem.

Houston Lawyer:
What, no women on the panel?
9.8.2009 4:10pm
J. Aldridge:
I don't think woman were allowed to keep and bear arms. Most every state allowed them to own guns and use them.
9.8.2009 4:18pm
J. Aldridge:
^^^But of course that can't be the reason :-)
9.8.2009 4:29pm
Soldier of Fortune:
The Court should abandon the "common use" dicta, and instead apply the principle of Kyllo v. United States that the Constitution keeps up with technological development. This is particularly important in light of new non-lethal defensive arms which may become available.

I have always thought the term "non-lethal weapon" was an oxymoron. While such weapon may hinder an immediate attack, the criminal will still live to attack someone else. But I agree that the "common use" dicta should be ignored. Every citizen should be able to possess whatever arms are currently carried by an individual member of the infantry, such as the following: bayonet, M-4 Carbine, M-9 Pistol, M-16/M-4/M-14 Rifles, M203 Grenade Launcher, M240B Machine Gun, M-249 Squad Automatic Weapon, M-24 Sniper Weapon, M-40A1/M107/M110 Sniper Rifles, M-1014 Joint Services Combat Shotgun, MP-5 Submachine Gun, AT-4 Anti-Tank Weapon, Mk-23 pistol and all hand grenades.

All for personal defense, of course.
9.8.2009 5:04pm
Oren:

Every citizen should be able to possess whatever arms are currently carried by an individual member of the infantry

So between 1961 and 1971, individuals in the US should have been allowed to possess the Davy Crockett?
9.8.2009 5:09pm
Mikeyes (mail):
What about the children incorporation? Will that be included in the symposium and what is your take on it?
9.8.2009 5:17pm
Kharn (mail):
Oren,
The Davy Crocket was ordnance, not an arm.
9.8.2009 5:25pm
Oren:
Kharn, I don't think the Second Amendment allows the government to allow arms but ban all munitions.
9.8.2009 5:48pm
matt (mail):
I can't tell if Soldier of Fortune is kidding or not, but I think I've posted here before that I think a decent starting place for line-drawing on 2A-protected arms would be those suitable for an individual rifleman in a body of modern infantry. That's enough to keep the militia effective, oppressive governments nervous, and individuals able to protect themselves and their communities.

It's easy to put rifles, pistols, and SMGs on the protected side, and high explosives and crew-served weapons on the other side. Squad-level weapons like the squad light machine guns (M240B, M249, PKM, etc) I'd drop in a restrictable-but-not-bannable gray area, along the lines of the current class III process.

Plenty of room for fancy lawyerin' there, but I can't accept that the founders would have been too accepting of the federal government banning the populace from owning the standard infantry rifle of the standing army.

-m@
9.8.2009 6:07pm
Soldier of Fortune:
So between 1961 and 1971, individuals in the US should have been allowed to possess the Davy Crockett?

No, because it was operated by a three-man crew.
9.8.2009 6:07pm
Peter Colter (mail):
As a matter of history, "destructive devices" including ordnance such as howitzers were first regulated by the 1968 gun control law. However "howitzer crime" or "bazooka crime" had not been major problems. Thus the real world consequences of the deregulation of heavier weapons would in all probability be minimal.
9.8.2009 10:34pm
wfw:
Restrictions of crew-served weapons are arbitrary and ahistorical. The 2nd says nothing about them, unless you interpret "bear" to mean arms portable by one person - again, arbitrary and ahistorical. We know that in the Revolutionary period crew-served weapons were owned and used by private citizens, both on land and at sea, and that the government itself not only allowed it, but depended on it.

Recall that the troops Gage sent from Boston to Concord were sent to confiscate a stash of artillery and related supplies, not the farmer's personal guns.
9.8.2009 11:22pm
Oren:
Line drawing is drudgery.
9.9.2009 12:00am
matt d (mail):
Peter Colter and wfw are certainly correct as a matter of history and original meaning. I suppose I am guilty of a pragmatic streak here; what I propose is only a little freer in my mind than what we already have, but is within the realm of possibility from the supreme court. Ain't no way, no how, the supreme court within our lifetimes would require the protection of, e.g., man-portable nuclear weapons in private arsenals.

It's a great deal closer to the correct meaning of the 2A than Scalia's "in common use" test, which I'd have to say was a pretty indefensible bit of results-based judging.

-m@
9.9.2009 12:09am
Larrya (mail) (www):
Roston provides a menu of gun control choices which he argues will have little if any effect on law-abiding gun owners, plus a list of gun rights proposals which have been offered in Congress recently.
Roston's gun control "menu" includes the majority of the Brady Wish List, laws that have repeatedly been rejected by most state legislatures. Collectively they would institute national gun registration, the holy grail of gun control.

Some of his gun rights proposals, like widespread reciprocity, are largely in place in many, if not most states. (With my Texas CHL I can carry in 30 states.) Some of them are ridiculously limited, as in restoring D.C. gun rights, allowing employees at the Bureau of Prisons to store their guns when they get to work, and allowing military veterans to register firearms they acquired before 1968. Some, like national park carry, have already passed.

What Rostow fails to acknowledge is that the Democratic gains in 2008 are dependent on gun rights. The main reason gun control isn't being pushed in the current Congress is that at least a third of the Democratic members are voting pto-gun.
9.9.2009 4:42pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.