Criticisms of Eugene Volokh’s Framework, Part III

This is the last bit of writing I plan to do on Professor Volokh’s law review article.  See Part I here and Part II here.  I don’t mean these criticisms to take away from the otherwise well thought out and workable framework for the Second Amendment when it comes to self-defense, but I think those of us who spend more time in the issue also need to take part in the conversation.

My final criticism centers around the distinction between short-barreled rifles, and short-barreled shotguns, both of which are restricted by the National Firearms Act of 1934.  Professor Volokh, on page 1488 (Page 46 on PDF), suggests:

Machine guns, short-barreled shotguns, and still more dangerous military weapons (such as surface-to-air missiles or grenade launchers) are outside the scope of “arms,” and may thus be banned. Moreover, such bans do not substantially burden the right to keep and bear arms for self-defense.

Short-barreled or otherwise sawed-off rifles would likely be arms simply because they aren’t materially different from handguns, which certainly qualify as arms. A handgun is just a very short-barreled rifle (some rifles even have pistol grips), and it’s hard to see why a short-barreled rifle would be materially more dangerous than the even more concealable handgun. But for the same reason it’s hard to see why a ban on short-barreled rifles would materially burden the right to keep and bear arms in self-defense, when handguns remain available.

Now, I understand that Heller has largely stuck us with the short-barreled shotgun language, in that the ruling specifically mentions it as not being a protected arm.  Plus, we have Miller, which may not have categorically ruled a short-barreled shotguns outside of Second Amendment protections, at least said that the Court couldn’t just take notice of the fact.  Precedent cuts even more against short-barreled shotguns being protected than machine guns.  So it’s quite useful to find a means, as a matter of court strategy, to distinguish between short barreled rifles and short barreled shotguns, if one is interested in saving short-barreled rifles.

But as a matter of practicality, I’m not convinced there’s any real practical difference between a short barreled rifle and short barreled shotgun, and I think the Court was wrong to include it in its dicta.  There’s not much that can be said about the former that’s not true about the latter.  Professor Volokh argues:

Likewise, short-barreled shotguns are practically more dangerous than the kinds of guns that are in common use among law-abiding citizens, because they combine a lethality close to that of a shotgun—at least at the short distances characteristic of the typical criminal attack—with a concealability close to that of a handgun.

I could easily argue the same thing about a 11.5″ barrel AR-15, and the 11.5 barrel AR-15 retains much of the same lethality as a 16″ barrel AR-15 rifle.  Moreover, the same firepower is available in a pistol version, such as the Carbon 15, which while regulated as an assault weapon in some states, is legal in the vast majority of states, and is regulated as a handgun under federal law.  Does adding a stock make it materially more dangerous?  It could easily be argued that under the stress of a self-defense situation, it makes the defender more likely to hit the attacker than an innocent bystander, because of the increased stability given by the stock. The handgun option on shotguns is not generally available, because under NFA, smooth bore pistols are considered AOWs, and so shotguns with pistol grips have to meet minimum barrel and length requirements.  That hasn’t stopped some manufacturers from thinking the utility is great enough that many people will be willing to comply with the federal requirements.

I think it makes sense to suggest that if handguns are protected, because they are useful for self-defense in the home, that short barreled shotguns and rifles have even more utility, and are only uncommon because of legal restrictions on them.  I can understand why, as a matter of strategy, we might want to distinguish between the two, but I don’t think the case can really be made convincingly.  Portions of the NFA were not adopted for rational reasons, and the original intent of the Act was to place heavy restrictions on handguns.  Heller ruled that out, and I think it was short sighted of the Court to suggest that the other limitations were somehow fine just because they are “longstanding.”   What if the original language for handguns, which later created the AOW laws when it was sloppily removed, had remained in the Act?  Would the Court have had to rule differently in Heller because the restriction was “longstanding” and handguns were uncommon?

While I would like to see machine guns protected by the Second Amendment, I can at least see a clear distinction between machine guns and other types of arms, at least when it comes to the purpose of self-defense.  I can’t see any such distinction for short barreled rifles and shotguns.  If the enhanced lethality of these arms is a problem, then only handguns should have Second Amendment protection.  Otherwise, I fail to see how these items are distinct for the purposes of self-defense from other arms which are protected.  The Supreme Court apparently was not persuaded by the concealability of handguns, so I don’t see why it would be persuaded by such an argument for short barreled rifles and shotguns.