Category: 2nd Amendment

Former Governor and Attorney General of California, Jerry Brown, has submitted a brief in the Chicago case favoring incorporation.   How is he expecting to get us all into the hippy concentration camps if we’re all armed?

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.

In part one I looked at Professor Volokh’s assertion that assault weapons bans could be constitutional, because they did not materially interfere with self-defense.  The next issue I will look at, in Professors Volokh’s Seocond Amendment framework, is that of magazine capacity.  Overall, I like Professor Volokh’s framework a lot, but here are some things to think about in regards to magazine capacity:

Large-capacity magazine bans are a closer question.   A gun with a larger than usual capacity magazine is in theory somewhat more lethal than a gun with a 10-round magazine (a common size for most semiautomatic handguns), but in practice nearly all shootings, including criminal ones, use many fewer rounds than that.

A common size in California, where anything that holds more is illegal.  In other states, where there are no such restrictions, larger magazines are the standard, rather than the exception.  Once the federal assault weapons ban disappeared, everywhere else in the country, magazine sizes went back to the way they were before the ban.  That’s what people overwhelmingly choose to buy.  Go into a gun store today, I doubt you’ll easily find a 10 round Glock magazine or a 10 round AR magazine.  They are still produced, and you can find them online, and in shops in border states, but mostly because demand still exists in states like New Jersey, California, and New York, which still limit magazine capacity.

And mass shootings, in which more rounds are fired, usually progress over the span of several minutes or more. Given that removing a magazine and inserting a new one takes only a few seconds, a mass murderer—especially one armed with a backup gun—would hardly be stymied by the magazine size limit. It’s thus hard to see large magazines as materially more dangerous than magazines of normal size.

I think that’s largely correct, so like with assault weapons, we get the dangerousness determination out of the way, and it’s in our favor.  But the reason the restriction has no effect on the attacker is because in most mass shooting situations, the attacker has command of the situation, and is not under any time pressure to perform his reloads.  The Virginia Tech killer reloaded several times during his spree, because for him it was fish in a barrel.  Someone defending themselves is presumably up against someone presenting a deadly threat.  At that point time, pressure and adrenaline come into play, and a quick magazine change might not be so easy, unless one is very well practiced on magazine changes.  Most people who have a gun for self-defense hardly practice them.

I agree with Professor Volokh that a larger magazine capacity does not make a gun materially more dangerous, but that’s not to say that being forced to change magazines in the middle of being attacked is a minor burden.  Stress does remarkable things to your ability to think, perform fine motor skills, and as the defender, you take every advantage you can get.  That’s why police overwhelmingly use larger magazines, and civilians, given the choice, overwhelmingly choose to carry them.

Still, these same reasons probably mean that the magazine size cap would not materially interfere with self-defense, if the cap is set at 10 or so rather than materially lower.  First, recall that until recently even police officers would routinely carry revolvers, which tended to hold only six rounds.  Those revolvers were generally seen as adequate for officers’ defensive needs, though of course there were times when more rounds are needed.

Police departments nearly universally abandoned the revolver for pistols holding 15 or more rounds as soon as they became available in the marketplace.  Suggesting that a few years go they were the standard I don’t think means much without discussing the reason why departments abandoned them as soon as there were viable alternatives.  If magazine capacity is such a minor burden on self-defense, why is it that no department is equipping its officers with reduced capacity sidearms?  Why in states that do not have magazine restrictions does the free market not generally support smaller magazines?

Second, the ability to switch magazines in seconds, which nearly all semiautomatic weapons possess, should suffice for the extremely rare instances when more rounds were needed (though to take advantage of this, the defender would have to make a habit of carrying both the gun and a spare magazine).

He’s correct about the rarity of the situation where you’ll need more than a few rounds, but I’m not sure why that matters.  Violent criminal attacks by one stranger against another are pretty rare to begin with, which is why some people suggest that folks shouldn’t be allowed to carry guns in public at all.  People choose to carry a firearm because they find the burden of doing so to be less than the burden of a very small possibility of being dead or seriously injured.  The Second Amendment would seem to interfere with the government trying to make that choice for its citizens.

But why should the Second Amendment allow the government to further intrude itself into the same calculus when it comes to what magazine you can equip yourself with?   True, situations requiring more than ten rounds are rare, but the burden of carrying my Glock 19 with 15 rounds in it (which it is designed for) as opposed to 10 is minuscule.  The sensible thing to do in that case is to carry it with the amount of rounds it was designed for.  Carrying an extra magazine is considerably more burdensome, so burdensome I actually find carrying a backup gun to be the easier option.  For women, having to carry an extra magazine or an extra gun is even more of a problem.  This is probably a far more problematic issue for women as it is for men, who generally have more room on their bodies for hiding things.

I don’t see why the Second Amendment would protect a citizen’s right to choose whether or not to carry a gun to defend against violent attack (pretty rare), then on the basis of no finding on the “dangerous or unusual” nature of a 15 round magazine, as opposed to a 10 round magazine, allow the government to regulate the kind magazine one could carry in that gun, especially on the flimsy argument that “Carrying an extra magazine is not much of a burden, and you don’t really need those extra rounds anyway.  But oh yeah, police defending themselves do need them, so better have an exception for them.”

UPDATE: Part III is here.

Eugene Volokh is highlighting his recent law review article detailing a framework in which to think about the Second Amendment in terms of self-defense (he does not go into the resistance to tyrannical government arguments).  I read this in draft, and believe it to be a very thorough and coherent conception of the Second Amendment from the perception of self-defense.  I encourage everyone to take the time to read it (it’s long).  I do, however, have some minor issues with his reasoning as I will lay out over a series of posts.  I will begin with assault weapons.  Let’s start on page 1484 (or 42 on the PDF) of Prof. Volokh’s review:

This is clearest when we look at bans on so-called “assault weapons.” Such bans have been hotly controversial, but the dispute about them is largely symbolic. The laws generally define assault weapons to be a set of semiautomatic weapons (fully automatic weapons have long been heavily regulated, and lawfully owned fully automatics are very rare and very expensive) that are little different from semiautomatic pistols and rifles that are commonly owned by tens of millions of law-abiding citizens. “Assault weapons” are no more “high power” than many other pistols and rifles that are not covered by the bans. Definitions of assault weapons reflect this functional similarity: They often focus on features that have little relation to dangerousness, such as folding stocks, pistol grips, bayonet mounts, flash suppressors, or (for assault handguns but not assault rifles) magazines that attach outside the pistol grip or barrel shrouds that can be used as hand-holds.

It’s therefore hard to see how assault weapons bans would do much to decrease crime, since even a criminal who complies with the ban could easily find an unbanned gun that is as criminally useful as the unbanned gun, and is as dangerous to victims as is the banned gun. The class of assault weapons is indeed not “typical,” at least in the sense of common use. But there is no reason to think that most assault weapons owners have them for criminal purposes. And assault weapons are not more dangerous than the usual gun, which in my view makes them fit within the category of “arms.”

Nonetheless, the availability of close substitutes for assault weapons— the very reason why assault weapons bans are unlikely to work—also makes it hard to see how assault weapons bans would materially interfere with self- defense, at least given definitions such as those in the 1994 federal statute. And the reasons the Court gave for why handgun bans are impermissible—that handguns are “easier to hold and control (particularly for persons with physical infirmities), easier to carry, easier to maneuver in enclosed spaces, [or easier to handle while] still hav[ing] a hand free to dial 911”—do not apply to assault weapons bans: Assault weapons are no more useful for self-defense than are many other handguns, rifles, and shotguns that aren’t prohibited by assault weapons bans. Assault weapons bans might well be pointless, and might offend gun owners who want the freedom to choose precisely what sorts of guns they own. But this need not make assault weapons bans unconstitutional, if the courts focus on whether the law substantially burdens self-defense.

I disagree.  Prof. Volokh does an excellent job of outlining why so-called assault weapons are neither more dangerous or unusual than other types of firearms, but I think his conclusion that easy substitutes are available overlooks an important factor, and a factor that I do not think should be readily discounted by the courts.  The courts ought to categorically reject any substitution arguments, in determining the burden on self-defense, because substitution arguments will invariably overlook the multitude of factors that go into determining which gun is right for someone.  It’s a complex equation that the courts ought not intrude themselves into, once the dangerousness argument has been dealt with.  Let me tell you a tale of two rifles.

One of the most popular semi-automatic rifles on the market is the SKS.  I can hardly think of any of the gun safes I know that doesn’t have at least one, and they are becoming increasingly popular for hunters on a budget in states that allow hunting with semi-autos.  While in some states, they are banned in certain configurations, the SKS remains cheap and popular because they are considered “curios” under federal law, they can be imported into the country largely in tact from surplus stocks in Eastern Europe.  They require no additional work to comply with federal or most state laws once they are imported.  A decent rifle can be had for under 200 US dollars in most gun shops.

In contrast, we can look at the semi-automatic Kalashnikovs.  A decade ago, most of these rifles could be had for around 300 dollars.  By all rights, the Kalashnikov should be no more expensive than the SKS, but is because manufacturers can’t import them legally, but have to do a great deal of assembly in the United States, with American made parts, to get around the import restrictions.   In fact, due to increasing restrictions by the federal government in importation of receivers, under the still standing importation ban instituted under the first Bush Administration, the price of these has risen to more than 600 dollars, since it’s forced manufacturers to do more of the work here.   They are now, because politicians and bureaucrats have deemed them “assault weapons”, out of the price range for a lot of individuals who lack the means the buy them.

As tempting as it might be to argue, because the SKS is available, and cheap, it’s a reasonable substitute for the Kalashnikov, that overlooks several factors.  For one, the Kalashnikov takes a detachable magazine, which has a lot of advantages for self-defense.  Chief is that the magazine can be stored already loaded, separate from the firearm, eliminating the need to store the rifle loaded.  It also allows for quicker reloading, if necessary, or if a magazine fails.  There are conversions for the SKS to give it a detachable magazine, but they make the gun less reliable, and make it illegal in a few states.  Second, the Kalashnikov is much shorter than the SKS, which makes it more convenient to store, and makes it easier to maneuver around tight corners.  More importantly, perhaps, the shorter rifle makes it harder for an assailant to grab.  The pistol grip on a Kalashnikov makes it easier to wield for most people, and particularly easier to wield by someone who has arthritis of the hands, or who perhaps isn’t quite strong enough to get a firm grip on a standard rifle stock.  Along that same vein, the Kalashnikov is also lighter, and easier to mount accessories to.

I think it’s also reasonable to argue that the right to keep and bear arms also must include the right to practice with them, and with the Kalashnikov being available in many more calibers than the SKS, it offers advantages in that regard.  The firearm I can find the most ammunition for right now is my 5.45x39mm Kalashnikov.  It’s one of the few rounds that’s still cheap and relatively available.  I don’t shoot my SKS as much because the ammunition it takes is harder to come by right now.

It’s quite easy to suggest that the courts can consider the substitution argument, which from the comfort of the bench, seems to be a tempting game to play.  But it’s not so easy if the proffered substitute doesn’t work for a specific individuals needs, limitations, stature, etc.  What works best for the individual should be left to the individual.  That is, after all, why it’s an individual right, is it not?  Once the courts dispose of the “dangerous and unusual” argument when it comes to semi-automatic rifles, that’s where the analysis should end.  If semi-automatic rifles are judicially noticed as being useful for self-defense, then the Second Amendment should protect their ownership in any configuration that may suit a specific individual need.  To do otherwise would be doing the Second Amendment rights of a great many Americans a grave disservice.

UPDATE: Part II is here.

UPDATE: Part III is here.

Let’s say that a future government has decided to incarcerate wrong thinking people into “reeducation camps,” to try to get people thinking right, and to quietly “take care” of all those who can’t be rehabilitated.  Free speech is suppressed, the media made an arm of the state, and the government refuses to stand for free and fair elections.  In that situation, most people would recognize the government has forfeited any claim to legitimacy.  We fought a World War, and a risky, expensive, and protracted cold war against such governments.  Most people, I would wager, would agree such a government ought to be resisted, and violently if necessary.  But I have to question how some view the form that would take on.

Do folks really believe that if the proverbial shit were to hit the fan, that the people will prevail by the people bringing out their privately owned tanks, RPGs, anti-tank missiles, artillery, mortars, F-16s, helicopter gunships, surface-to-air missiles, to fight and defeat a modern army, or even part of one, on its own terms in conventional military operations?  I would posit that warfare has changed a great deal since 1776, and even if the courts agreed the Second Amendment protected all of these things, it would be entirely symbolic and meaningless.  Very few people could afford them, or even if they could afford them, they wouldn’t own such things in large enough numbers to make any real difference.

This is not to say that I think the Second Amendment’s purpose of enabling people to resist a criminal government is completely obsolete, just that it’s not going to happen the same way it did in 1776, only with modern weapons.  Any resistance to a criminal government in the modern age will take conventional small arms, explosives, information, intelligence, and will.  Small arms we have to ensure are protected under the Second Amendment.  Explosives are impossible to control in such a situation, and will be available no matter what laws regulate them under a legitimate government.  Intelligence and will are organizational qualities that are unrelated to arms.  Hell, I would argue that the ability to tinker with model airplanes is more important to the modern concept of “militia” than knowing the principles of artillery, and knowing RF communication principles far more important than knowing logistics.

In the history of 20th century warfare, this has played out more than a few times.  The Vietcong engaged in an extensive and largely successful guerrilla campaign, with only what their fighters could carry on their backs.  In fact, the fatal mistake of the Vietcong was to come out of the jungle, and fight an offensive against the U.S. military on conventional terms.  Militarily, Tet was a defeat for the VC, and it destroyed them as a fighting force.  But Tet broke the American will, and in that sense was not a failure.  It is, however, a harsh lesson what happens when a guerrilla force tries to fight a conventional army on its own terms.

What I advocate here is not an extinction of the original purpose of the Second Amendment, but to emphasise that the priority has to be on protecting conventional small arms.  I don’t think whether destructive devices are protected or not really makes all that much difference in the overall scheme of things.  The nature of modern warfare has not made the Second Amendment’s “defense against tyrannical government” obsolete, but it has changed the equation enough that appeals to how things were in 1776 aren’t much use in figuring out how it would be applied in a modern context.

It is important, I think, to come up with legal distinctions between certain types arms, protected by the Second Amendment, and other types of arms, which are unprotected.  Even most people who believe in a very broad reading of the Second Amendment would generally agree the Second Amendment protects no right for someone to have a nuclear, chemical or biological weapon of mass destruction.  Even if there is not agreement among Second Amendment activists about where the boundary ought to be, we can at least agree that there is a boundary, and distinctions must be made between arms that are protected, and those that are not.

The Second Amendment constructed by Heller protects the right of self-preservation, or more precisely, the tools necessary to exercise the right of self-preservation.  Under that kind of interpretation, the courts would examine the device’s utility for that purpose, when seeking to discover whether it is an “arm” in the scope of the Second Amendment.  It would seem unlikely that destructive devices of an explosive nature would be possessed for such a purpose.  But as I’ve said before, I don’t think the courts can just consider self-preservation under normal circumstances, but must also consider extraordinary circumstances, to determine whether a particular arm is useful for self-defense, and should fall under Second Amendment protection.  In the case of a .50 BMG vs. a pipe bomb or grenade, I think a distinction can be made.

The first distinction is that a .50BMG most definitely is useful for personal self-defense, in that it is a discriminate weapon, that can be aimed at a threat, and can disable that threat.  A grenade is not so discriminate.  It has to be lobbed a certain distance in order not to injure the thrower, and is only very generally discriminative, in that the shrapnel it sends in all directions does not distinguish between friend and foe, and can cause considerable collateral damage to property.

But I think there’s another distinction between the two.  One can imagine a .50BMG being useful in a period of temporary civil disorder, such as a hurricane or an earthquake, where an ability to disable a vehicle, or shoot through cover, could mean the difference between self-preservation and being dead. One can also imagine a grenade, for instance, being useful for fending off multiple attackers.  In either temporary, or a more lasting civil disorder, both could be useful.  But obtaining a precision rifle, such as a .50BMG rifle, is probably going to be very difficult during civil unrest.  Obtaining explosives is easy, as the ingredients to create them would be readily available even in the event of civil breakdown.  In that instance, I think it’s not unreasonable to suggest that banning the manufacture or possession of pipe bombs does not run afoul of the Second Amendment, because under ordinary circumstances, they aren’t useful for self-defense, and under extraordinary circumstances, in the absence of law and order, they would be available.  I think that likely strengthens the government’s case that the burden on self-defense is minimal.

Of course, this very fact makes the effectiveness of the law suspect, at best, since it wouldn’t be hard for those with criminal intent to make them under normal circumstances, but this isn’t an argument about what makes for good public policy, but about what is constitutional.  When it comes to that, I’m willing to accept a Second Amendment that doesn’t cover destructive devices, if their exclusion makes the federal courts more likely to offer stronger protections to other small arms.  The burden created on my ability to defend myself is minimal, and even for those who argue that the Second Amendment is meant to guard against tyrannical government, let’s face it, under those kinds of circumstances, pipe bombs aren’t going to be hard to come by.

Eugene Volokh has a summary of the ruling from the 11th circuit.  Eugene Volokh speaks of the entertainment value also, but a pipe bomb is a destructive device.  You can have plenty of fun with things that go boom without making a destructive device.  Just ask Joe.  Of course, this is ignoring the “defense from tyrannical government” argument, which I think is important, but I think the government should have power to regulate explosive ordnance, or other items that have little use for self-defense, and pose an inherent risk to the community, no matter how responsible a person is.

I’ve seen this mistake made many times. Since most of you guys don’t follow me on Twitter, I thought I would hijack Sebastian’s blog while he’s driving to work to “re-Tweet” this reminder to a wider audience.

RT @APStylebook: Capitalize references to the U.S. Constitution with or without the U.S. modifier: The president said he supports the Constitution.

I’m blown away by a comment over at Robb’s, from someone who is not a supporter of our cause:

You think the anti-Obama stuff is a kick because you live in a redneck area that supports that kind of thing. I think it’s nutty and out of touch because I live in area more consumed by the Iran elections. No one here cares about guns.

One reason I’m not wrapped up in it is because I think it will end tragically, and I find that to be depressing. These protests and demonstrations only continue until the regime musters the will to put it down. That they haven’t is probably because the political elite that rules Iran are using the situation to jostle for power among themselves. Once the new arrangement is worked out, and it won’t be a liberal arrangement, they’ll squash the protesters like the Chinese did at Tiananmen Square.

It takes more than rocks and harsh language to get rid of a regime who’s willing to kill its own people to preserve itself. I think this regime is willing to do that. Anyone who is “consumed by the Iran elections” should give a shit about guns, because they are about to see what a people with no guns does in the face of a government that has them.  Submit or die.  Those are your two choices.  An armed population doesn’t guarantee you won’t end up doing the latter, but it can absolutely prevent the former form being a choice, and the people just might end up taking out enough of the totalitarian thugs that they run out of men to send.

The only way things will end well for Iranian liberals is for the regime to split, and for half the men with guns to stop taking orders from the government.  I’ve seen no indication of this happening yet in Iran.

I’m not sure how much practical significance this is going to have, but at least some federal courts are willing to recognize that the Second Amendment has consequences.  Basically, the court is demanding a jury instruction in § 922(g)(9) cases that allow a defendant to assert that “that the individual charged under § 922(g)(9) posed no prospective risk of violence.”  This doesn’t really legalize anything, just gives your attorney more options in arguing your defense before a jury.

We’re going to be very hard pressed to ask the courts to solve all our problems with gun rights, as they will be reluctant to stand up for Second Amendment rights for wife beaters.  My problem with Lautenberg has always been more that it was retroactively applied, rather than only applied to new convictions.  I think it should be found unconstitutional on that ground.