I'm a supporter of gun rights, but surely there's nothing that odd
about people being afraid of law abiding citizens with guns (and even more so
about convicted felons with guns). The case for gun control is on balance not,
in my view, supported by the facts, but it is surely plausible. It's not
ridiculous to worry that the presence of a gun might escalate an argument into
a shootout, and in fact while the great bulk of homicides are committed by
people with some arrest record, many are not committed by people with a felony
conviction record.
To be sure, other devices, such as alcohol and cars, are used in about
as many killings of innocent bystanders as are guns. But people are also
afraid, and rightly so, of misuse of alcohol and cars, and in fact there are
many regulations -- many plausible, some good, some silly -- of the use of both.
Of course, driving a car and drinking alcohol aren't constitutional
rights, and having guns is, not just under Heller and the original meaning of
the Second Amendment, but also under at least 40 state constitutions. But that
doesn't tell us that much about what constitutes infringement on the right.
That gun rights can be regulated though not prohibited has been a nearly
universal refrain in state court decisions on the right to bear arms for the
last two centuries. Many have gone way too far in upholding even serious
burdens on the rights, but it's hard to claim that there's any support in
American legal tradition for the proposition that gun rights (or speech rights
or freedom from search and seizure or many other rights) are absolute, even for
law-abiding citizens. So we can't just assume that people have a
constitutional right to possess some particular kinds of guns, and ask why
people are afraid of others' exercising that right.
Eugene
> -----Original Message-----
> From: [email protected] [mailto:firearmsregprof-
> [email protected]] On Behalf Of Raymond Kessler
> Sent: Thursday, June 04, 2009 8:17 AM
> To: Volokh, Eugene; [email protected]
> Subject: RE: Volokh: California Court of Appeal Upholds Ban
>
> In addition to being very unrealistic, the ranch sniping hypo is one of
> those 1 in a 100 million cases that, for better or worse, the law usually
> doesn't deal with. It is very difficult to write a statute or
> constitutional provision that can cover every conceivable exercise of a
> claimed right. Further, Heller seems to be limited to "weapons in common
> use." .50 cal. Rifles are not in common use. Further the Court assumes that
> certain types of persons (e.g. convicted felons) could have their rights
> limited. Is this hypo symptomatic of the "parade of horribles" and scare
> tactics about the 2nd Amend? See, for example Bogus' article in Syracuse
> Law review arguing that Heller romanticized insurrection (59 SYLR 253)and
> Dorf's fear (59 SYRLR 225) that dangerous felons will be allowed to carry
> concealed weapons on NY city streets. Every time a state enacts a concealed
> carrying licensing scheme someone claims the streets will soon be running
> with blood. Why are some people so afraid of law abiding citizens with
> guns? Why are some people so afraid of other who exercise a constitutional
> right?
>
> Ray Kessler
> Prof. of Criminal Justice
> Sul Ross State Univ.
>
>
> -----Original Message-----
> From: [email protected]
> [mailto:[email protected]] On Behalf Of Volokh, Eugene
> Sent: Wednesday, June 03, 2009 11:33 PM
> To: [email protected]
> Subject: RE: Volokh: California Court of Appeal Upholds Ban
>
> Hmm -- how realistic is it to expect that one will be sniped at from
> a distance where a .50 caliber rifle will reach, but other rifles (recall
> that the state law doesn't keep you from having other rifles) won't?
>
> Eugene
>
> > -----Original Message-----
> > From: [email protected] [mailto:firearmsregprof-
> > [email protected]] On Behalf Of rufx2
> > Sent: Wednesday, June 03, 2009 9:13 PM
> > To: [email protected]
> > Subject: RE: Volokh: California Court of Appeal Upholds Ban
> >
> > Eugene- Person or persons sniping at your house from the property line of
> > your ranch and you can't use a .50 in defense? Wait for them to come
> closer
> > and use your Heller-Approved handgun?
> > {Cf pdf pages 27 & 37}
> > -----Original Message-----
> > From: [email protected]
> > [mailto:[email protected]] On Behalf Of
> > [email protected]
> > Sent: Wednesday, June 03, 2009 3:01 PM
> > To: [email protected]
> > Subject: Firearmsregprof Digest, Vol 67, Issue 2
> >
> > ------- Original Message --------
> > Subject: [Volokh] Eugene Volokh: California Court of Appeal Upholds
> > Ban
> > on .50-Caliber Rifles Against Second Amendment Challenge:
> > Date: Wed, 3 Jun 2009 00:19:39 -0400
> > From: [email protected]
> > To: [email protected]
> > ...
> > I can't speak to the wisdom of a .50-caliber ban, but this seems to be
> > a sensible interpretation of Heller's test for what "arms" are
> > protected. Moreover, as I argue in my forthcoming [2]Implementing the
> > Right to Keep and Bear Arms in Self-Defense article, this is also
> > consistent with a sensible interpretation of the right to keep and
> > bear arms in self-defense. In my article, I argue that Heller's
> > "typically possessed by law-abiding citizens for lawful purposes" test
> > is flawed. But, among other things, I argue that the right to bear
> > arms for self-defense shouldn't be seen as infringed by restrictions
> > that don't materially interfere with the right to self-defense; and a
> > ban on .50-caliber rifles doesn't materially interfere with
> > self-defense (see PDF pages 12-19 and 48, as well as PDF pages 37-42
> > for the discussion of interpreting the scope of "arms" post-Heller).
> >
> > This doesn't speak, of course, to the right to keep and bear arms for
> > other reasons, such as deterrence of government tyranny and the like.
> > But I leave that questions to others (much as the Court did in
> > Heller); writing 100+ pages on the right to bear arms in self-defense
> > is enough for me.
> >
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>
> _______________________________________________
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