Posted by Eugene Volokh:
*Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical
Framework and a Research Agenda*:
http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1238001528
I now have a pretty clean copy of [1]this forthcoming UCLA Law Review
article of mine, and I thought I'd post it and invite comments.
There's still some time (though not a lot) to make corrections, so
please let me know about any errors you find. My one request is that
before you respond to some of the items I note below, you look at the
relevant parts of the article to see whether that response has already
been taken into account.
I expect the article will not entirely please either gun rights
maximalists or gun rights minimalists. For instance, I conclude that
bans on so-called "assault weapons" -- bans that I think are entirely
pointless -- are probably constitutional; not every bad idea is an
unconstitutional idea, even where constitutional rights are involved.
At the same time, I argue that there should be a right to carry loaded
weapons in public (except for a few places). Even if one accepts the
correctness of Heller's conclusion that concealed carry can be
restricted, your right to keep and bear arms for self-defense must
generally include your right to have those arms where self-defense is
needed, not just to have them at home when you're out on the street.
Whether this idiosyncratic (moderate? extremist in different
derections?) position on the constitutional questions (on the policy
questions, I'm generally skeptical of gun restrictions) is right or
wrong is for you to judge. But I thought I'd note it so that people
know what to expect.
Note also that the first part of the article proposes a general
analytical framework that can also help think through existing
doctrine for some other constitutional provisions -- I hope that will
be useful even for people who aren't at all interested in the right to
keep and bear arms.
In any case, here is the Introduction:
The Second Amendment, the Supreme Court has held, secures an
individual right to keep and bear arms for self-defense. Whether or
not the federal right will be applied to the states, at least 40
state constitutions secure a similar right. How should courts
translate this right into workable constitutional doctrine?
([2]Click here to show the rest of the Introduction.)
In this Article, I offer a few thoughts towards answering this
question (chiefly in Part I), and apply those thoughts to some areas
in which the question will need answering (chiefly in Part II). I
sometimes offer my views on how particular gun rights controversies
should be resolved, but more often I just suggest a structure for
analyzing those controversies and chart an agenda for future research.
In particular, I argue that the question should not be whether federal
or state right-to-bear-arms claims should be subject to �strict
scrutiny,� �intermediate scrutiny,� an �undue burden� test, or any
other unitary test. Rather, as with other constitutional rights,
courts should recognize that there are four different categories of
justifications for a restriction on the right to bear arms.
1. Scope: A restriction might not be covered by the constitutional
text, the original meaning of the text, the traditional understanding
of the text�s scope, or the background legal principles establishing
who is entitled to various rights.
2. Burden: A restriction might only slightly interfere with
rightholders� ability to get the benefits that the right secures, and
thus might be a burden that doesn�t rise to the level of
unconstitutionally �infring[ing]� the right.
3. Reducing Danger: A restriction might reduce various dangers (in the
case of arms possession, chiefly the dangers of crime and injury) so
much that the court concludes that even a substantial burden is
justified. This is where talk of intermediate scrutiny or strict
scrutiny would normally fit, though, as Part I.C argues, such labels
likely obscure more than they reveal.
4. Government as Proprietor: The government might have special power
stemming from its authority as proprietor, employer, or subsidizer to
control behavior on its property or behavior by recipients of its
property.
Paying attention to all four of these categories can help identify the
proper scope of government authority. For instance, even if some kinds
of gun bans are presumptively unconstitutional, under something like
�strict scrutiny� or a rule of per se invalidity, it doesn�t follow
that lesser restrictions must be judged under the same test.
Conversely, the conclusion that certain kinds of restrictions should
be upheld even when they might not pass muster under a demanding form
of review, shouldn�t lead courts to entirely reject that demanding
review for all restrictions.
Breaking down the possible elements of the constitutional test into
these categories can also tell us which analogies from one restriction
to another are sound. For example, if the limitation on possession of
guns by minors is a matter of scope -- stemming from the background
legal principle that minors� constitutional rights are narrower than
adults� rights -- this would suggest that the validity of bans on
possession by minors offers little support for bans on possession of
handguns by 18-to-20-year-olds. On the other hand, if the limitation
is a matter of the danger posed by ownership by relatively immature
people, then the analogy between under-18-year-olds and
18-to-20-year-olds becomes more plausible.
And laying out these categories can help us notice and evaluate
analogies to other constitutional rights. Many of the disputes that
arise in the context of gun control debates are similar to disputes
that arise in other fields, such as free speech, abortion rights,
property rights, and more. Consider, for instance, debates about
whether the presence of ample alternative means for self-defense
should justify a restriction on one means, whether gun possession may
be taxed, or whether waiting periods are constitutional. Understanding
exactly why these types of restrictions are upheld or struck down
elsewhere can inform the discussion about whether they should be
upheld or struck down where gun rights are involved.
* * *
A few notes on the limitations of this Article: First, let me repeat
that this Article offers a framework for gun rights, and a research
agenda for further inquiry about the constitutionality of some
particular gun controls. It does not offer an exhaustive analysis of
each regulation, or an answer about which ones are sound. But I hope
the framework, and some brief sketches of how the framework would
apply in each area, will prove useful to those who are working on such
questions.
Second, the Article focuses solely on the right to keep and bear arms
for self-defense. The constitutional provisions I discuss may have
other components, for instance a right to keep arms that would deter
government tyranny, or in seven states a �right to keep and bear arms
... for hunting and recreational use.� But those components are left
for other articles.
Third, the Article tries to discuss the right to bear arms under both
the federal Constitution (whether or not the right is eventually
incorporated against the states) and under state constitutions. But
state constitutions often have different wording and different
histories: For instance, a general discussion of whether waiting
periods are constitutional says little about the Florida
right-to-bear-arms provision, which expressly authorizes a three-day
waiting period. Nonetheless, broadly discussing a multistate law of
the right to bear arms -- or of search and seizure, civil jury trial
rights, and other constitutional rights -- can be helpful, so long as
we recognize that there may be significant differences among states
that override any general theoretical framework we develop.
([3]Hide most of the Introduction.)
References
1. http://www.law.ucla.edu/volokh/2am.pdf
2. file://localhost/var/www/powerblogs/volokh/posts/1238001528.html
3. file://localhost/var/www/powerblogs/volokh/posts/1238001528.html
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