The Civil Right to Bear Arms

Yes, you have the natural right to bear arms for self-defense and other lawful purposes, and in the United States of America, that right has finally been confirmed as a civil right.

It has taken a long, strange journey to get to this point. Never mind that the first battles of the American Revolutionary War were sparked by an attempt to seize American arms. Never mind that the U.S. Constitution was explicitly amended to protect the right to keep and bear arms. Never mind that the U.S. Supreme Court ruled in Dred Scott v. Sandford that if black slaves were recognized as free citizens, they would have the right “to keep and carry arms wherever they went.” Never mind that the racist, slaving traitors who provoked the worst war in American history didn’t hang—but that’s a battle for another day.

In less ancient history, it’s been 14 years since the U.S. Supreme Court finally, reluctantly confirmed that the Second Amendment really did recognize an individual right to keep and bear arms—to own and carry weapons for self-defense and other lawful purposes in other words. Unfortunately, due to a quirk of American jurisprudential history, that fact still had to be incorporated among the several states. Never mind that the U.S. Constitution is still “the supreme Law of the Land.”

Nordyke v. King, an unlikely case about gun shows out of California, suddenly took center stage. For a moment it looked like the litigation would quickly establish incorporation for the Second Amendment right. Hopeful, naïve civil libertarians predicted that the citizens of California and similarly benighted states would win their rights within 18 months—but instead we got an education in en banc review. Instead we saw the lower courts in prohibitionist jurisdictions—where the unrepentant traitors’ bigoted poison had so long festered among otherwise liberal minds—revolt against the plain language of the Supreme Court.

What was supposed to be a quick victory for individual liberties became a long, exhausting and divisive slog through the courts—and even through the White House. Once we did eventually win incorporation in McDonald v. Chicago, constitutionalists, right-to-arms advocates, and civil libertarians lost again and again when we tried to make something meaningful out of the Second Amendment. Coalitions rose and fell, friendships were made and destroyed, and the Supreme Court seemed content to allow the lower courts to ignore its guidance and continue to treat the right to bear arms as “a second-class right.” That is … until today.

In the majority opinion for New York State Rifle & Pistol Association v. Bruen, Justice Clarence Thomas wrote, “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.… New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” Moreover, the ruling insists upon textual and historical analysis alone when determining the constitutionality of any laws regulating the right to arms, negating the “intermediate” approach used by the lower courts so often during the last 14 years.

You have the right to carry firearms for lawful purposes … but under Justice Thomas’s reasoning, licensing regimes and other categorical prohibitions should all fall. Of course, time will tell, and the price to get this far has been steep.

However, for those of you in the six states most affected by today’s ruling, if you worry about “blood in the streets” when law-abiding gun owners are allowed to carry their weapons, you shouldn’t. That fear has always been based on propaganda. After the ruling has been implemented, you won’t notice any difference. In fact, after a few months, you will probably forget all about this … or maybe you will decide to exercise the right yourself.

Terror and Tragedy

I had planned to report on the Ninth Circuit’s en banc decision in Peruta v. San Diego … but then came the horrific events in Orlando. The appellate court denied the right of law-abiding citizens to bear arms in public … while a Muslim terrorist simply ignored such prohibitions in order to murder dozens of people whose homosexuality offended his religion. If you don’t understand why both of these things were constitutionally and morally wrong, then you are a self-deluding fool … or an Islamic terrorist.

Even in shall-issue Florida, the killing still took place in a gun-free zone. Firearms are prohibited in bars and other drinking establishments. Now, given the clientele involved, the victims in this incident were reasonably unlikely to be armed even if weapons weren’t prohibited, but the prohibition certainly did nothing to stop the murderer. Moreover, as he was apparently a licensed security guard, the killer knew full well that his intended victims would be “legally” disarmed.

The outcome might have been different … but probably not.

This isn’t about tactics, political or otherwise. It’s about fundamental principles and natural rights. What we saw both in California and Florida were violations of principles and attempts to suppress rights. Both events should be seen as abhorrent to their own degrees in what was supposed to be an enlightened, egalitarian culture—but I know they won’t.

The American experience came so close to that egalitarian dream, but now that light will fade. Our divisions will widen, our misguided envy and misplaced jealousy will fester, and we will slowly but surely tear ourselves apart. The only real question at this point is the magnitude of our fall.

Rehearing for Peruta and Richards

As suspected from the outset, the U.S. Court of Appeals for the Ninth Circuit has voted to rehear both Peruta v. San Diego and Richards v. Prieto, which had established that California’s handgun-licensing regime was unconstitutional as applied. The earlier victory in these lawsuits came as something of a surprise but was really just the result of a lucky draw for the original three-judge panel. The full court is heavily populated by Democratic appointees, so in all likelihood, the initial ruling will be reversed by this “rare” en banc review.

Civil-rights proponents on the court may have delayed this moment for as long as possible. Many thousands of licenses have been issued for the good cause of self-defense since the original decision, including within the jurisdiction of my former home, Orange County. The jurisprudence from Peruta has also been incorporated into other important right-to-arms cases, most notably Palmer v. D.C., which overturned the capital district’s no-issue law. Nevertheless, the end result was predictable.

When Peruta is reversed and transformed into a copy of the Kachalsky (USCA2), Woollard (USCA4), and Drake (USCA3) rulings, one question will remain. Will the U.S. Supreme Court take up the case and settle the matter constructively? Thus far, the high court has declined to review all of the right-to-carry cases that have come before it, so there is little reason to believe that the same dereliction won’t be visited here.

The boundary of the present inflection point may be growing near, and I can almost see the threads of historical probability coiling just beyond its veil. I’ve said before that we can’t return to that polite middle ground where the disparate factions pretend to ignore each other’s intentions. Outside the inflection point, linear progression becomes hyperbolic change. What that will do to the American nation remains unclear.

A Right-to-Carry Victory in the District of Columbia

Nearly five years ago, the case of Palmer v. D.C. was filed in the U.S. District Court for the District of Columbia. Following the landmark victory in D.C. v. Heller, which overturned D.C.’s ban on handguns in the home, this matter challenged the District’s total prohibition on carrying firearms for self-defense outside the home. Various motions were submitted over the course of the next year, but then the case languished, waiting for a decision on summary judgment. Meanwhile, a variety of other right-to-carry challenges made their way through the courts to their ultimate, conflicting resolutions.

Peruta v. San Diego and its brethren in the Ninth Circuit were the only other major right-to-carry cases that hadn’t been fully resolved, but even they were simply waiting for the final judicial shenanigans to be completed at the appellate level. Palmer was still pending at district court, seemingly consigned to eternal judicial delay. Until today … that is.

Ruling that “the District of Columbia’s complete ban on the carrying of handguns in public is unconstitutional” under any level of judicial scrutiny, the court struck down that ban and enjoined the enforcement of the applicable sections of D.C.’s penal code. The right to bear arms in our nation’s capital has been secured. For today … that is.

Monday may bring appeals and/or new legislation, so the struggle is still far from over.

Decision and Order: Palmer v. D.C.

Drake Declined

The wave has broken far from shore. Today, the U.S. Supreme Court declined to review Drake v. Jerejian, continuing its avoidance of right-to-carry cases. This tacit choice for potential violence is still astonishing even after similar dereliction in the matters of Kachalsky and Woollard, but there is yet hope.

The floodwaters of unrest may inundate the northeast, but if the Peruta decision stands in California, the potential damage may be minimized. The abuses are so longstanding and the geographies so small that the high court’s ersatz federalism might suffice to release enough pressure in the region. Once the people of the West are freed, only somewhat less than 20 percent of Americans will remain under fully prohibitionist regimes.

Avoiding the Question

The U.S. Supreme Court made an unconscionable mistake today. In declining to review the matter of Woollard v. Gallagher, which questioned the constitutionality of requiring “good and substantial” cause for the issuance of a permit to carry a handgun, the high court has signaled with dread certainty that it will do nothing to protect the civil right to bear arms for the nearly 100 million Americans who reside in prohibitionist states. Moreover, this shirking of responsibility will doom the nation at large to suffer the consequences of decades of frustration that must soon be released.

Though several right-to-carry challenges still remain active in the federal courts, we have no reason to expect different outcomes for these cases. Those subjects of California, New York, New Jersey, Massachusetts, Maryland, and the other gun-control bastions are now left with only two choices: flight or defiance.

Stop the Ban on Semi-Automatic Rifles in California

I usually don’t write about prospective legislation in detail, but this example is so egregious that I feel obligated to do so. California Senate Bill 374, which was sent to the Governor last night, would prohibit the trade in all centerfire semi-automatic rifles without fixed magazines beginning next year. Rifles lawfully acquired before this time would be retained by their current owners but would have to be registered as “assault weapons” and would thus also be subject to more stringent transportation and usage restrictions.

The definitions involved are so broad that virtually all self-loading rifles would fall under the new law. This includes not only rifles that merely resemble modern military firearms, such as civilian ArmaLite-Stoner (AR) and semi-automatic Kalashnikov-action (AK) rifles that are currently legal with magazine locks installed, but also many target and hunting rifles from most major manufacturers, not excluding the very popular Springfield M1A rifles (and all other civilian versions of the U.S. M14), the Ruger Mini series, the Kel-Tec SU-16 series, surplus and commercial variants of the U.S. M1 carbine, nor arguably Garand rifles and Simonov carbines (Russian SKS, Yugoslavian m1959, etc.). Hundreds of thousands, if not millions of lawful gun owners would be affected, though many might not realize that fact until they were arrested for possession of unregistered “assault weapons.”

SB 374 appears obviously unconstitutional under the common-use test referenced in D.C. v. Heller, so I don’t expect that it would survive a constitutional challenge in court. Semi-automatic rifles are not more dangerous or unusual than other firearms and, in fact, are very rarely used in violent crime, so there is also no utilitarian justification for the would-be law. Nevertheless, we citizens must still do our part to voice opposition to misguided, unconstitutional legislation.

Therefore, if you value the right to arms and/or the civil rights of your children or possible children, I urge you to contact Governor Brown and encourage him to veto this bill.

Political Hypocrisy and Civil Rights

Last week, my brother and I squabbled via e-mail. I had held up the mirror of political hypocrisy in the form of an opinion piece from the National Review that I shared on Facebook. My brother caught his own reflection, which surprised me, and complained. I called him on it, he took offense, and we were off to the races.

Ironically, I had originally withheld my own comments precisely to avoid offending anyone. You see, if I simply tell someone that he’s wrong, then I’m being insulting, but if I instead try to let him see his own mistakes, then I apparently look condescending … or so I’ve been told. What rhetorical device can I use to make my point without risk of offending or worse yet being ignored?

However, since this will be ignored anyway, I may as well expound on the issue, since I already did most of the work for my brother’s benefit. My words will be out here in the wilderness at least.

Now, the point of the National Review piece was about hypocrisy in the treatment of civil rights, namely conflicting support or defense for discouraging the right to arms through gun-control laws and discouraging the right to vote through voter-authentication laws. If restrictions are justified on one of these to avoid certain perceived harms, then they must also be justified on the other to avoid its perceived harms. Put simply, it is hypocritical to insist on unfettered exercise of one right that may cause harm but demand restrictions on another right that may also cause harm.

My brother, of course, simply denied the equivalency, which is what disappointed me and angered him. After all, guns are bad, right? They’re just used to murder people. But votes are good. They’re used to help poor people get welfare benefits and affordable health care. Never mind that votes have been responsible for far more murders than have privately held firearms.…

I contend that the issues are very much equivalent in that important and/or fundamental civil rights are implicated in both examples. In fact, the methodologies of restriction are eerily similar, so I would argue that the voter-authentication efforts have been informed by the history of gun-control legislation. The next step might be to require background checks prior to each election, since felons are also prohibited from voting.

I could make a case for why the electoral franchise is too widely available, but that isn’t my point here and implicates too many other tangential issues. For the sake of this argument, I accept that voter disenfranchisement is a bad thing, assuming that easy access to ballots correlates to increased rates of voter fraud no more than easy availability of firearms correlates to increased rates of murder. In other words, let’s assume that there is no real problem for voter-authentication laws to solve.

I recognize these voter-authentication laws for what they really are (just like I recognize gun-control laws for what they really are). Though I could make a good-faith argument that these laws are wise and benevolent and not disenfranchising at all—like a right to arms limited just to your own home, you aren’t really disenfranchised as long as you can still vote between 1:30pm and 2:00pm in the state capital on election day—I suspect that they are less about preventing electoral fraud than they are about discouraging casual voters. Casual voters are the only group who will respond to get-out-the-vote drives, so these laws will undercut the effectiveness of such drives and thus threaten the political power of the party that most relies upon them.

I’ve seen with my own eyes just how easy electoral fraud can be, but I will oppose these voter-authentication laws and support the inevitable legal challenges. Assuming the laws are eventually stricken, the resulting jurisprudence can be used against very similar gun-control laws. In the same manner, again assuming victory for the pro-rights argument, the jurisprudence that results from the ongoing right-to-arms litigation will eventually be used to protect and expand other civil rights. What weakens one weakens all, and what strengthens one strengthens all.

And this is why I wish that I could win “liberals” over on the right to arms and “conservatives” over on private morality issues, but if I can’t convince my own brother of the importance and interdependence of all civil rights, then whom can I convince?

A Friend for Woollard

I’m no lawyer, but I doubt that I could construct a stronger legalistic argument in support of the right to carry a handgun under the Second Amendment than that presented in the Cato Institute’s amicus brief to the U.S. Supreme Court advocating its review in the matter of Woollard v. Gallagher. The high court must take up this case and settle the underlying constitutional question. To do otherwise would be to shirk its duty and expose the entire body of our civil rights to potential abuse under the same methods used to deny the right to bear arms.

A Right to Carry for Illinois

In Illinois, the legislature has enacted a shall-issue concealed-carry licensing bill over Gov. Pat Quinn’s veto. This brings the state into compliance with the orders from U.S. Court of Appeals for the Seventh Circuit in the Moore and Shepard cases. Illinois thus becomes the final state to provide some legal means for the people to exercise their right to bear arms under the Second Amendment.

Accordingly, Attorney General Lisa Madigan has moved to dismiss Moore and Shepard as moot under the new law and will not petition the U.S. Supreme Court to review these cases. That will leave one right-to-carry case, the matter of Woollard v. Gallagher from Maryland, presently ready for the high court’s attention. Cases out of California, New Jersey, and Hawaii are still waiting for decisions from their respective appeals courts.

With Illinois’ narrow no-issue example mooted, the Supreme Court will have to accept one of these challenges to may-issue licensing schemes … if it intends to rule on the right to carry at all.

Mr. Kashalsky Doesn’t Go to Washington

The U.S. Supreme Court has declined to review the matter of Kashalsky v. Cacace, which unsuccessfully challenged the constitutionality of New York’s discretionary handgun-licensing regime. There are several more right-to-carry cases in the queue, so the rank speculation is that the high court would prefer to hear one of those examples instead, since the justices have already telegraphed their intent to review further Second Amendment litigation in the near future. However, the danger inherent to avoiding Kachalsky lies in the timing. The longer these important issues go undecided, the more likely that longstanding frustration will turn into anger … and anger into defiance or even violence.

In other words, we’ve moved frighteningly closer to constitutional crisis.

A Loss for Woollard

Regressing to the mean, the U.S. Court of Appeals for the Fourth Circuit has reversed the district-court decision in what is now Woollard v. Gallagher. Ruling for the state, the court held that while Maryland’s requirement of “good and substantial reason” for a permit to carry a handgun in public does burden the right to bear arms under the Second Amendment, it is still “constitutionally permissible.” However, as Eugene Volokh notes, “a constitutional right that can be trumped in nearly all its applications, under whatever level of scrutiny, is not really a right.”

Meanwhile, we wait to see whether the U.S. Supreme Court will take up Kachalsky v. Cacace and if Illinois will petition the same for review of its loss in Moore v. Madigan.

Right-to-Carry Litigation in Summary

While the police finished murdering each other in southern California, and the President prepared “massive” proposals for the Congress, the case of Piszczatoski v. Maenza [now Drake v. Jerejian, 1/09/14] was argued before the U.S. Court of Appeals for the Third Circuit. With an en banc review of the decision in Moore v. Madigan looking unlikely, a victory in Piszczatoski would deepen the circuit split created by the loss in Kachalsky v. Cacace and thus make the conflicting jurisprudence even more difficult for the U.S. Supreme Court to avoid reviewing. Here is a summary of the major right-to-carry cases for those keeping score.

Kachalsky v. Cacace	New York	Lost on appeal at USCA2.
Moore v. Madigan	Illinois	Won on appeal at USCA7.
Palmer v. D.C.	D.C.	Won at U.S. District Court.
Drake v. Jerejian	New Jersey	Lost on appeal at USCA3.
Peruta v. San Diego	California	Petitioned to U.S. Supreme Court.
Richards v. Prieto	California	Lost on rehearing at USCA9.
Woollard v. Gallagher	Maryland	Lost on appeal at USCA4.

There is a host of other right-to-arms cases that are working their way through the federal court system, but this is the vanguard litigation. A historical turning point is at hand, though some people can’t or won’t see the important civil-rights implications at work here. Few people need to carry guns, they argue, but then very few people needed to abort pregnancies … or to marry the spouses of their choice … or to ride at the front of the bus.

On High-Capacity Magazines

It always pains me to point out the obvious, so I omitted mention of so-called high-capacity magazines from my recent comments on reasonable gun control. However, much of the latest gun-control discussion (including President Obama’s own disingenuous remarks) has focused on the notion of limiting magazine capacities. Therefore, I am forced to point out the obvious.

Limiting magazine capacities for firearms would be difficult both practically and constitutionally. I will deal with the constitutional side first, since that may be less obvious for those who haven’t studied the history of gun control or U.S. constitutional law. To begin, though, we must define just what exactly a high-capacity magazine is—and that is a big part of the problem in itself.

An ammunition magazine is a device for feeding cartridges into a repeating firearm.¹ The capacity of that magazine will vary depending on the type and size of the gun and the size and weight of its ammunition and will generally be limited by how reliable and convenient it is in normal use. What is high capacity for one firearm may be low capacity for another. For example, magnum revolvers commonly have five- to eight-round cylinders, mid-sized semi-automatic pistols are often designed for 15-round magazines, and many small-bore rifles (such as the AR-15) are usually equipped with 20- or 30-round magazines.

In D.C. v. Heller, the U.S. Supreme Court established a common-use test for firearms protected by the Second Amendment. Since the guns described in the above example are all in common use for lawful purposes, their standard magazines will most likely be ruled protected as well. For what it’s worth, this fact may leave true high-capacity magazines constitutionally vulnerable.

What are “true high-capacity magazines”? These are the gimmicky and awkward products designed to separate gun owners from their money. They may hold scores and scores of cartridges, but they push the material limits of the magazines themselves and the endurance limits of the shooter, making them both unreliable and uncomfortable. In fact, the failures of such magazines appear to have foreshortened some recent mass-murder incidents—which leads off on a tangent that I will probably explore in the future.

Setting the Constitution aside, controlling high-capacity magazines is impractical, because doing so is essentially impossible. An ammunition magazine is little more than a box with a spring inside of it. Any high-school dropout could make one in his mother’s basement, and in a few more years, so-called 3D printing will enable anyone to manufacture all the necessary components save the steel springs. In other words, the technology is too simple to control without sending our civilization back to the Stone Age.

This is also why existing and proposed magazine restrictions bother me mostly for their idiocy. In California, it is currently illegal to manufacture or sell magazines with greater than 10-round capacities. While this law is effectively unenforceable and has no impact on violent crime, law-abiding citizens such as myself dutifully follow it, but I offer this detail with a caveat. I may have no personal or immediate need for high-capacity magazines, but should such need develop, I expect that they will be easy enough to come by.

Now for your bonus tactical argument! Why are high-capacity magazines actually good for lawful defense but mostly irrelevant to criminal offense? The gun-control theory goes that when a would-be mass killer stops to reload, his potential unarmed victims have an opportunity to tackle him safely, but this is the exception rather than the rule.² When faced with imminent violence, those not properly prepared or trained to respond in kind will naturally tend to flee or hide, leaving the murderer with ample time to reload or switch weapons. On the other hand, the defensive shooter is already in the fight by definition. Her attackers will be pressing their assault and not cowering or running, so she won’t have the luxury of calmly reloading her weapon with another low-capacity magazine.

Magazine limitations are pointless and probably unconstitutional and like other unreasonable gun-control schemes hinder only law-abiding citizens and not the violent criminals they supposedly target.

1. It’s worth noting that repeating firearms (capable of more than one shot before reloading) have been around for nearly 700 years, though they didn’t become economical to manufacture widely until the mid-19th century.


2. The garden-variety violent criminal needs to fire only a couple shots while trying to murder a rival gang member.

Reasonable Gun Control

 
“I support the Second Amendment, but I think we should have reasonable gun controls.” This is a line frequently heard from politicians and certain special-interest groups. While it’s often disingenuous—since what the most vociferous gun-control proponents really desire is total prohibition, presumably in the noble but misguided hope of creating a non-violent society—I will nevertheless take the statement on its face for the sake of discussing reasonable gun-control measures.¹

As the U.S. Supreme Court has repeatedly held, all civil rights, no matter how fundamental, are subject to some degree of regulation in a society structured on ordered liberty. The Second Amendment right to keep and bear arms is no different. Furthermore, in D.C. v. Heller, while affirming the individual right to arms for self-defense and other lawful purposes, the high court opined that many longstanding gun-control regulations are presumptively lawful.

This brings us to the fact that most of the reasonable gun controls commonly demanded have already been in place for many years or even decades. However, not all of these regulations have been fully or properly implemented. I will examine each of these reasonable proposals below and offer suggestions for more effective improvement. Some of these gun-control schemes are more reasonable than others and will probably pass constitutional muster in the face of ongoing legal challenges, but some will fail this test and are likely to be stricken.

Background Checks

No one wants guns in the hands of violent criminals or the dangerously insane, so background checks have been federally indicated pursuant to all commercial firearms sales since the Gun Control Act of 1968 and much earlier in many states. Though their actual effectiveness is questionable due to the durable nature of firearms² and the propensity of criminals to acquire their guns via illegal means, the process has become relatively painless with the advent of the National Instant Check System (NICS) in the 1990s, and most transactions can now be cleared or denied within a matter of minutes. Since nearly instant background checks don’t unduly burden the right to arms, they will probably be ruled constitutional if challenged.³

Nevertheless, the system does have its flaws. First, NICS depends on data gathered from a number of sources. When the various agencies responsible for collecting this information fail to input disqualifying criteria, the system may still clear someone who should have been prohibited. Second, due to the high volume of false positives, law-enforcement agencies are unable to investigate denials. While most denials are overturned on appeal, a few are undoubtedly the result of legitimately prohibited persons,⁴ who may then proceed to obtain guns illegally. Both problems can be mitigated with greater attention to accurate and thorough data collection and by improved database integration.

Furthermore, despite the largely successful implementation of NICS, various provisions of the Gun Control Act keep gun sales mired in mid-20th century practices, particularly when interstate transactions are involved. By law, a Federal Firearms License (FFL) is required to deal in firearms, but licensees are restricted to face-to-face transactions with residents of their own states, except when dealing with other licensees. This can actually compromise the security of an interstate transfer, as the firearm must pass through many more hands on its way to the legal buyer, increasing the likelihood that it may be lost or stolen along the way.

There are two possible and relatively easy solutions to this problem, though both would require that the law be amended. First, leveraging the NICS service, outdated residency requirements could be eliminated, allowing any cleared customer to take delivery of a firearm without being forced to first have it shipped to a licensed dealer in the customer’s home state. Second, an existing category of FFL could simply be expanded to include a wider variety of firearms, affording the licensed collector more convenience while exposing him and the community at large to less risk.

These reforms would also have the added benefit of further discouraging undocumented and potentially unlawful private sales, which I will discuss in more detail below.

Registration

We’ve had de facto gun registration at the federal level (as a result of the record-keeping requirements for FFL holders) and de jure registration in several states for many, many years. Though registration is of dubious utility to law enforcement, it has also done little harm to law-abiding gun owners, despite dire predictions from some quarters within the right-to-arms camp. Implementing a standardized federal registration system would work very well in conjunction with the modernized interstate-transfer procedures described above.

That said, there is some evidence from the courts that registration may be deemed unconstitutional. It certainly contradicts the Fourth Amendment right to privacy. Arguably, however, the militia clause of the Second Amendment suggests that the government may have a constitutional interest in understanding the disposition of arms suitable for militia service—and I will discuss which firearms should be considered militia weapons in detail below.

Licensing

Beyond the FFL system described above, there has long been a call to license gun owners. We license drivers after all … or so the argument usually goes. In fact, though, licensing regimes are now present in all states but Illinois—a problem being addressed in the courts right now. Unfortunately, several of the most populous states (including California and New York) still continue to discourage their citizens from becoming licensed, despite having had licensing systems in place for many decades.

Indeed, licensing reform is currently the top priority within the right-to-arms movement, where it is viewed as the gun-control measure offering the single most immediate benefit to public safety. To that end, multiple legal challenges to unconstitutional licensing practices are working their way through the federal courts and will likely reach the Supreme Court within the next two years. The high court is widely expected to rule that while states may regulate when and where their citizens may carry guns for self-defense and other lawful purposes, there must also be a legal mechanism for them to do so that is administered equitably and that doesn’t unduly burden the core right.

I have reported on liberalized or shall-issue licensing before. Whenever and wherever such licensing reforms have been adopted legislatively, there have been exaggerated claims by opponents that gun violence would explode as licensees instigated shootouts for all manner of trivial reasons. Of course, no such thing ever happens. Instead, licensees have proven to be exceptionally law-abiding, and the data suggest that right-to-carry laws contribute to an at least slight decrease in violent crime.

This decrease is due mostly to the deterrent effect of an armed populace. Even though only a tiny fraction of the eligible citizens choose to obtain licenses, would-be attackers are still dissuaded and seek out softer targets. Over time, this effect should become more pronounced as a larger percentage of the population becomes licensed and, hopefully, as other criminal-justice reforms are implemented.

However, I won’t argue that armed citizens are a perfect antidote for episodes of mass murder.⁵ Both are statistically rare, so the likelihood that a licensee will be immediately present when one of these very unusual events erupts is exceedingly small. While the chances that an armed citizen will simply be nearby are significantly higher, licensees are not police officers and are trained to avoid confrontation whenever possible. In any case, the event wouldn’t be recognizable any longer, since the headline would read: “Gunman opens fire in crowded shopping center. Dozens injured.”

Safety Training

Safety and competency training will always be valuable where firearms are concerned. In fact, voluntary safety programs formalized in the 1950s and championed by the National Rifle Association are probably responsible for reducing the rate of fatal firearms accidents to statistical insignificance. Nevertheless, states that don’t include any training as part of their licensing requirements still haven’t seen an increase in accidental shootings, which suggests that stringent training demands would provide little additional benefit to public safety.

That said, any potential training requirements that weren’t unduly burdensome would probably be deemed constitutional. Here again, the Second Amendment provides for a well-regulated militia, and in its 18th-century context, well regulated was understood to mean well trained. To this end, basic firearms safety could reasonably be included in school curricula, possibly helping to reduce accidental shootings even further.

Waiting Periods

Waiting periods have come and gone over the years, but they were sold politically to accomplish two goals. First, waiting periods allowed time to conduct the mandatory background checks, though NICS has essentially obviated this need. Second, they provided a cooling-off period for any gun buyer who might be acting on some temporary murderous impulse, though I’m aware of no correlation between waiting periods and reduced homicides.

In short, waiting periods have probably outlived any utility they may have had. Nevertheless, in California and other states where they remain, there is speculation that at least initial waiting periods for first-time gun buyers would survive constitutional challenge. If this proves to be the case, though, the state may be left in the position to delay access to firearms to those who may legitimately and suddenly develop an immediate need for effective self-defense.

Unfortunately, I see no remedy for this problem, if cooling-off periods are allowed to stand. It may simply be a matter of personal responsibility for those living within an imperfect system. It’s probably too late to buy the fire extinguisher once the fire has already started.

Private Sales

This is the so-called gun-show loophole. While gun shows enjoy no special exemptions, under federal law and in many of the several states, private sales are largely unregulated. Private parties are free to dispose of their own property as they see fit, so long as they aren’t knowingly transferring firearms to prohibited persons or dealing without a license.

For those less familiar with gun laws, you may find the dinner-party loophole somewhat easier to understand. This is the gap in health-and-safety laws that allows you to serve food and drink to your own family or to host a dinner party for friends and associates without having to obtain FDA approval or a conditional-use permit from your county of residence. Closing this loophole would require you to obtain the services of a licensed caterer before dining at home.

While there is much talk about requiring all private firearms transfers to be conducted through the agency of licensed dealers, as they currently are for the most part in California, it’s unclear whether such restrictions would be deemed constitutional. In addition to the Second Amendment, controls on private property also implicate the Fourth, Fifth, and Ninth Amendments. On top of this, such regulations are very difficult to enforce, effectively guaranteeing a low rate of compliance.

A better approach would be to encourage voluntary participation in the national background-check system. Providing private sellers with access to NICS would be well received by the vast majority of gun owners, who are generally eager to follow the law and who would appreciate the extra peace of mind while still avoiding the gross inconvenience of conducting private sales through licensed dealers. While this certainly wouldn’t eliminate all undocumented transactions, it would minimize them to a large extent, allowing law-enforcement resources focused on the illegal arms trade to be targeted more efficiently.

“Dangerous and Unusual Weapons”

In Heller, the Supreme Court explicitly ruled that weapons “in common use” by the people are protected by the Second Amendment, implying in its historical analysis that “dangerous and unusual weapons” could be subject to more stringent controls. However, these terms were left somewhat vague. The specific weapon “in common use” in this case was a personally owned handgun, but which weapons are “dangerous and usual”? And how does this decision square with the only previous Second Amendment ruling, U.S. v. Miller?

In Miller, the high court held that weapons suited for militia service were constitutionally protected. While this ruling may be regarded as partly erroneous due to the incomplete briefing process before the court, at present time, the weapon best suited for militia duty would be a select-fire assault rifle chambered for the 5.56×45mm NATO cartridge—or at the very least a semi-automatic analog thereof. However, select-fire weapons, other fully automatic firearms, and various “destructive devices” have been tightly controlled since the National Firearms Act of 1934 and essentially banned from production for the civilian market since 1986.

If the prohibitions on “dangerous and unusual” military weapons are constitutional, then that leaves us with semi-automatic versions of military rifles as the de facto protected militia weapons “in common use” by the people. However, despite their involvement in only a fraction of gun-related homicides, these are the very same “assault weapons” that so many gun-control proponents would like to see banned.

Now, as I’ve written before, so-called assault weapons are fictitious. The term was used to frighten the uneducated public into support for the federal ban that expired in 2004. A semi-automatic rifle is a semi-automatic rifle, regardless of whichever secondary features it may have—and like millions of other Americans, I own one myself. My modern Kel-Tec SU-16 rifle with its traditionally shaped stock is really no different than a 50-year-old Colt AR-15 with a pistol-grip stock. Both are chambered for the same intermediate 5.56mm cartridge.⁶ Both can accept the same five-, 10-, 20-, 30-, 60-, or even 100-round magazines. And both can fire only one shot for each pull of the trigger.

Therefore, per Heller, semi-automatic rifles are “in common use” and thus constitutionally protected for lawful purposes. They are also the only readily available militia weapons protected per Miller. Unless the prohibitions on more appropriate military-grade weapons are to be relaxed, any bans on semi-automatic “assault weapons” are both pointless and very likely unconstitutional.

Gun-Free Zones

Gun-free zones are a dangerous fiction and should be eliminated immediately. Vague, poorly defined zones have been ruled unconstitutional once before and doubtlessly will be again when an appropriate challenge arises. In the meantime, as we’ve learned tragically and repeatedly, the only guns these zones are free from are those held by law-abiding citizens.

Specific zones are more legally tenable, but to effectively implement truly gun-free zones would require secure perimeters, controlled access points with thorough searches of all incoming traffic, and ubiquitous surveillance.⁷ In other words, we would have to turn these “sensitive places” into prison camps. This would be both impractical in economic terms and antithetical to a free and open society.

Let’s reserve the prison-camp mentality for places where we really have no other choice … such as in actual prisons.

The foregoing gun-control proposals represent what reasonably can and cannot be achieved. Properly implemented, they can provide us with a constitutional and functional right to arms while still allowing both practical and symbolic legal tools for reducing violent crime. Most are already in place and need only minor adjustments to be made more effective.

This goal is politically possible for those who honestly wish to enhance public safety while also protecting our civil rights. The vast majority of gun owners already support these reasonable measures, and none of us expect to win a completely unfettered Second Amendment. What we do not appreciate is continually being blamed for the wrongdoing of the minority of willfully evil and dangerously insane people in this world, and we will certainly no longer tolerate being punished for their crimes.

1. The intellectually honest supporter of reasonable gun control will ultimately find himself in the right-to-arms camp. I should know, because I was that person. While my views have evolved toward libertarianism and away from the utilitarianism implicit in the unreserved support for gun control, that doesn’t change the fact that we will be living with some degree of utilitarian regulation until long after the subject has lapsed into irrelevance.


2. A well-maintained firearm will remain functional for hundreds if not thousands of years, and there are at least 800 million already in circulation worldwide. We will never run out of guns. This is one of many reasons why outright prohibition is an unacceptable proposition.


3. Of course, if background checks are acceptable for the exercise of a fundamental civil right, then arguably they should be applied to other less protected areas as well, such as voting rights, driving automobiles, or the receipt of public benefits.


4. I would argue that there should also be a way for prohibited persons to eventually restore their civil rights. Otherwise, the utilitarian argument dictates that anyone too dangerous to be trusted with a firearm is too dangerous not to be incarcerated.


5. It certainly wouldn’t hurt to allow licensees to go armed in otherwise unsecured “sensitive places.” Existing laws vary widely in this respect.


6. Military assault rifles and their semi-automatic civilian analogs are chambered for intermediate cartridges, more potent than low-powered handgun cartridges but less powerful than the high-powered rifle cartridges used for hunting and long-range precision shooting.


7. Even the strictly enforced gun-free zone only relocates the problem. Instead of a bunch of unarmed victims congregated inside the zone, we would have a bunch of unarmed victims queued up outside the zone waiting to be screened for entry. Either way, the would-be mass killer is presented with a target-rich environment.

Kachalsky Loses at the Second Circuit

Predictably, the U.S. Court of Appeals for the Second Circuit has upheld the ruling of the lower court in the matter of Kachalsky v. Cacace. As usual, the court misapplied the McDonald decision, interpreting the Supreme Court’s ruling that the right to bear arms described by the Second Amendment is “most notably for self-defense within the home” to mean that the right exists only within the home. A certiorari petition is expected.

Meanwhile, appeals continue to move forward in other circuits. Oral arguments are scheduled on Dec. 6th for several other right-to-carry cases, including California’s Richards v. Prieto.

Republicans and Abortion

As I was enjoying a hamburger and a beer, I overheard a conversation about politics from the next table. “I tend to agree with the Republicans on economics and taxes,” one young man said, “but I would never vote for a Republican because of the abortion issue.”

While I don’t advocate single-issue voting, it’s very clear that many voters do make their decisions based on a candidate’s position on just a handful of key issues. In this example, the Republican Party sacrifices untold millions of votes in its dogged opposition to a certain private medical procedure. The Democratic Party makes a similar sacrifice in its quixotic pursuit to suppress the right to arms.

I wonder what the electoral results would be if the major parties didn’t squander potential votes on pointless wedge issues.

Self-Defense, the Right to Arms, and the Concealed-Carry Revolution

The video I’ve shared is from a recent Cato Institute policy forum on self-defense and “stand your ground” laws. Though fairly long, it provides solid historical, political, and legal analysis, so I encourage everyone to watch. As you might suspect, I disagree in part with the last commentator,¹ but I still think he made valid points about the application of the law and the possible need for further guidance. After all, if “stand your ground” laws were a reaction to the misapplication of other statutes by prosecutors, are they not at risk for misapplication themselves? Absent political motives, the mere fact that relative experts disagree on the meaning of these laws suggests there is yet a degree of ambiguity, but that is a matter for legislators and judges to resolve.

As noted in the video, the adoption of such affirmative self-defense statutes has followed the proliferation of right-to-carry laws throughout the country. However, many if not most people are still largely unaware of this quiet revolution, both because the laws encourage or even require the concealed carry of firearms and because the mainstream media usually does their best to ignore the laws once they’ve been passed.² Naturally, there is a long and troubling history behind the right-to-carry movement, and I can touch on that only briefly here.

In A.D. 1986, only a handful of states would readily issue licenses to common citizens. In the rest of the country, the carrying of firearms was either broadly prohibited or the licensing authorities had almost unlimited discretion in issuance. This was the legacy of the two-pronged gun-control efforts³ of the 1920s and ’30s, which were ostensibly intended to combat the dramatic increase in violent crime that accompanied alcohol prohibition.

That began to change when Florida became the first state in recent decades to adopt a shall-issue statute, which required the licensing authority to issue licenses to all applicants who were not legally disqualified. Florida’s concealed-carry law became a model for reform, and by the mid-1990s, over half of the United States had enacted similar shall-issue statutes. The causes have not been widely explored, but I think that they will prove clear enough once this chapter of history is written.⁴

Opposition to the shall-issue movement has been and continues to be fierce, and in each case it has usually taken several years for liberalized concealed-carry legislation to make it through state legislatures and past gubernatorial vetoes. Without fail, opponents have warned of dire consequences should the reforms pass into law. Blood would run in the streets, they assured, as minor disputes and disagreements escalated into shootouts. Invariably, though, such grim outcomes have failed to materialize, and violent crime has continued to decline⁵ as right-to-carry laws have continued to expand.

Today, all but a handful of states enjoy shall-issue licensing or better. California, New York, and several other “liberal” states still maintain discretionary, may-issue regimes, while Illinois is the only state with no licensing system. Legislative reform is unlikely in these gun-control strongholds, so multiple constitutional challenges are now making their way through the federal courts.

The U.S. Supreme Court is widely expected to hear one or more of these cases within the next two years.

1. I am far, far more worried about misconduct by the police and prosecutors than I am about the potential that a criminal might “get away with it” here or there.


2. After vigorously campaigning against a right-to-carry reform, the news media seem to conveniently forget about the topic, except for occasional “investigative” pieces designed to expose or embarrass licensees. Here is a recent exception to that rule. “New Fashion Wrinkle: Stylishly Hiding the Gun.” The New York Times (2012).


3. These efforts resulted in the National Firearms Act of 1934, which sought to regulate firearms at the federal level via taxation (since the federal government was presumably bound from direct infringement on the right to keep and bear arms by the Second Amendment), and the “uniform acts,” which sought to control guns at the state level (since state governments were presumably not bound by the Second Amendment). In practice, though, the various prohibitions on concealed firearms found within the uniform acts were mostly used to disarm “undesirable” people (i.e., minorities and immigrants), and that was probably a large part of the true intent behind them. Otherwise law-abiding white citizens were generally unaffected for several decades, and the wealthy and influential could always count on getting licenses or at least special consideration in the event of any embarrassing incidents.


4. I contend that the right-to-carry revolution developed as a response both to the equalized enforcement practices reached in the 1970s and ’80s and to the political successes of the national gun-control movement from 1968 to 1994. Note that the number of shall-issue states had almost doubled within two years of the enactment of the federal ban on “assault weapons.”


5. The FBI’s Uniform Crime Reports show that homicides (gun related and otherwise) have continued to decline from 2006 to 2010. Firearms-related homicides specifically dropped from 10,225 to 8,775. More guns on the street simply do not correlate to—let alone cause—more violence.

Ever the Rush to Judgment

In all very numerous assemblies … passion never fails to wrest the sceptre from reason.

–James Madison

It has been a bitter few weeks in the struggle for human freedom, not so much because of actual setbacks or defeats—though we’ve had those too. Instead, we’ve seen the usual political opportunism that attends controversial events but this time in the ugly company of both popular disregard for the constitutional separation of powers and the emotionally expedient disrespect for fundamental American legal principles, such as due process of law and the presumption of innocence. For me, this is always a painful reminder of how little the people understand or value liberty.

My disappointment is the greater, because it is my own friends and colleagues whom I cannot sway in the face of salacious hearsay spread by the mainstream media. These are otherwise intelligent individuals who profess desire for “social justice” but have let their own emotions and prejudices blind them. Now, in fits of vengeful rage, they would forsake the social and legal barriers that preserve and defend actual justice in a rush to condemn people and events about which they are not properly informed.

It’s moments like this when my own resolve weakens. If reason will always face defeat at the hands of passion, why continue the pretense of debate? Why not abandon the polite, legalistic contest for ordered liberty and hoist the black flag of bloody revolution? Or somewhat more mildly, should I simply surrender to the unhappy idea that to live free means to live as an outlaw—or at least to live as an outsider within a society ruled by the mob’s caprice?

No. I am not ready to retire from the battle of ideas just yet. Important victories for civil rights are in the offing, even if they seem perpetually two years away at the moment.

An Early Victory in Maryland

While judicial shenanigans continue to delay California’s early right-to-arms challenges and defeats in other cases are being appealed in New York, Colorado, New Jersey, Massachusetts, and Illinois, an early and unexpected victory was announced today for the case of Woollard v. Sheridan at the U.S. District Court for Maryland. Like many of the other cases, Woollard challenged the constitutionality of discretionary permitting schemes. In this instance, however, the court ruled that Maryland’s law “impermissibly infringes the right to keep and bear arms.…”

Maryland’s attorney general has announced his intention to appeal.