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Librarian
04-07-2009, 12:23 PM
Eugene Volokh, a law professor at UCLA, is blogging on his forthcoming article Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda (http://www.law.ucla.edu/volokh/2am.pdf). Today's bit (http://volokh.powerblogs.com/archives/archive_2009_04_05-2009_04_11.shtml#1239106503) has things like Such protection, of course, makes sense when the right is (at least in part) a right to keep and bear arms in self-defense: Often, people need to defend themselves against robbers, rapists, and killers outside the home and not just in the home. Two-thirds of all rapes/sexual assaults, for instance, happen outside the victim’s home, and half happen outside anyone’s home. The percentages are even greater for robberies and assaults. The ability to defend yourself at home is no substitute for the ability to defend yourself wherever you are. So a ban on carrying weapons outside the home -- especially in places that one practically needs to frequent, such as the streets on the way to work or to buy groceries -- is a serious burden on the right, more so than the ban on handgun possession struck down in Heller (which would have at least left open some possibility of self-defense with shotguns or rifles).

Some states ban unlicensed carrying of loaded weapons, even when they are carried openly, but allow the carrying of unloaded weapons. A few court decisions have upheld such laws on the grounds that they let a would-be defender carry both the weapon and ammunition, and load it when needed. But seconds count when one is attacked, especially in public, where one might not have the warnings that some defenders will often have in the home (the breaking window, the barking dog, the alarm). While loading a gun may take only several seconds, especially if the ordinance allows the carrying of loaded magazines so long as the magazine is outside the weapon, those will often be seconds that the defender doesn’t have.
Worth reading, if academic treatments are to your taste.

DDT
04-07-2009, 12:58 PM
Thanks for the excellent linkage.

tactic101
04-07-2009, 10:58 PM
Volokh is a prodigy. Excellent.

Liberty1
04-07-2009, 11:15 PM
Volokh is a prodigy. Excellent.

Except when I was questioning him on AWs...he believes that bans on AWs with pistol grips, etc... (AR and AK types) are constitutional because you can own other similarly powered rifles (M1 Grand, M1A, hunting rifles etc....) :(

I tried to convince him that .223 AWs with pistol grips are particulary suited for use by women and the handicapped as well as being "in use" by our military forces and that such a ban would substantially burdened the Right. I hope it made sense to him. He is very influential in certain legal circles.

hoffmang
04-08-2009, 12:38 AM
Dr. Volokh seems to have a confirmation bias for his love of handguns and his ambivalence about rifles...

His framework has a couple of major oversights that I'll be addressing with him.

-Gene

Liberty1
04-08-2009, 9:40 AM
Dr. Volokh seems to have a confirmation bias for his love of handguns and his ambivalence about rifles...

His framework has a couple of major oversights that I'll be addressing with him.

-Gene

He also thought a ban on .32 would be constitutional if .38 was allowed :mad: as it didn't substantially burden the right. EV owens a glock for SD but not much else. Someone give him the EBR disease please :)

elenius
04-08-2009, 9:45 AM
Wow, there's lots of bad stuff in there. He thinks all of these may be constitutional:

- AW bans
- High cap mag bans
- Machine gun bans
- Short-barelled rifle or shotgun bans
- Electronically owner-authorized handguns
- Waiting periods
- Registration
- Microstamping
- Licensing

I thought he was our friend...

He does think that loaded open (and perhaps concealed) carry should be broadly protected.

Liberty1
04-08-2009, 10:05 AM
Wow, there's lots of bad stuff in there. He thinks all of these may be constitutional...

I thought he was our friend...

He does think that loaded open (and perhaps concealed) carry should be broadly protected.

From a research stand point he finds that gun laws generally do not work to prevent crime and opposes them on those grounds.

A law being bad policy but not unconstitutional is a separation he makes by comparing RKBA to other Rights and their jurisprudence.

But there is no other Right comparable to the RKBA for self defense or for that matter National/State Defense. As EV even points out in his draft, the right to RKBA in the home is NO substitute for not being able to defend ones self and our country everywhere WE THE PEOPLE are.

And when Americans are attacked in workplace/mall/church shootings, airplanes, or in a Beltran, Russia or Mumbi, India scenario, I want my side arm with me or my select fire M4 and battle rattle in my trunk to fall back to in the latter cases.

elenius
04-08-2009, 10:07 AM
From a research stand point he finds that gun laws generally do not work to prevent crime and opposes them on those grounds.

A law being bad policy but not unconstitutional is a separation he makes by comparing RKBA to other Rights and their jurisprudence.

But there is no other Right comparable to the RKBA for self defense or for that matter National/State Defense. As EV even points out in his draft, the right to RKBA in the home is NO substitute for not being able to defend ones self and our country everywhere WE THE PEOPLE are.

And when Americans are attacked in workplace shootings, airplanes, or in a Beltran, Russia or Mumbi, India scenario, I want my side arm with me or my select fire M4 and battle rattle in my trunk to fall back to in the latter cases.

Right. But he doesn't think your select fire M4 is protected by the 2A.

Liberty1
04-08-2009, 10:08 AM
Right. But he doesn't think your select fire M4 is protected by the 2A.

That's when Gene enters stage right :thumbsup:

Nevermore
04-08-2009, 10:45 AM
Except when I was questioning him on AWs...he believes that bans on AWs with pistol grips, etc... (AR and AK types) are constitutional because you can own other similarly powered rifles (M1 Grand, M1A, hunting rifles etc....) :(

I tried to convince him that .223 AWs with pistol grips are particulary suited for use by women and the handicapped as well as being "in use" by our military forces and that such a ban would substantially burdened the Right. I hope it made sense to him. He is very influential in certain legal circles.
I've been following his blog for quite some time, and I think it's important to remember that while he's considered an expert in numerous legal areas, including the Second Amendment, he's an academic. Academic papers tend to explore hypothetical questions, not advocacy.

While I haven't read the above article (yet), keep in mind that he's giving his expert legal opinion on what he believes may be found constitutional -- it's not necessarily his personal opinion, but his professional one. So when the DOJ asks him, 'Based on Heller, would regulation X pass Constitutional muster?' (e.g. CA's handgun roster), he might say 'Yes, I believe this Supreme Court, in light of Heller, would say that states may pass such a regulation or law.' He's not necessarily saying that he would want such a ban to pass -- only that he believes that it would be upheld. In fact, if he believes it's a bad idea, he'll say so in his blog and list reasons why.

There's a large gulf between what academics write about -- which is often pin-point hairsplitting -- and advocacy, which is what most Calgunners look for. In one post, the commenter notes that he believes one caliber might be banned if another, comparable one, remains legal. That's him saying, 'Based on existing statutes, case law, and my understanding of it, this is likely to be Constitutional'. Again, not necessarily his personal opinion but his reading of it.

M. Sage
04-08-2009, 5:46 PM
Right. But he doesn't think your select fire M4 is protected by the 2A.

Which is patently absurd.

Didn't merchantmen sail with cannon back in the day? I'd put that forth as an argument that even light artillery is covered under the 2A.

I do know that there was some privately-owned field artillery used in the Revolution.

hoffmang
04-08-2009, 10:06 PM
Again, not necessarily his personal opinion but his reading of it.
I worry that more of his personal opinion imbues his research than even he may be aware of.

-Gene

Mulay El Raisuli
04-09-2009, 6:47 AM
Which is patently absurd.

Didn't merchantmen sail with cannon back in the day? I'd put that forth as an argument that even light artillery is covered under the 2A.

I do know that there was some privately-owned field artillery used in the Revolution.


And I would agree 100% with you. Certainly, what's happening of the Horn of Africa shows the need for such.

The Raisuli

elenius
04-09-2009, 7:24 AM
I worry that more of his personal opinion imbues his research than even he may be aware of.

-Gene

Yeah, I don't really believe in the "objectivity" of social sciences. Arguments for any point of view can be made to look "scientific" enough to fit in some journal.

Librarian
04-09-2009, 8:50 AM
From the first in his series about his 2am paper:

http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1238002485 - minors

Note that here, as in future posts, I use the scope / burden / reducing danger taxonomy I mention in the Introduction, and discuss at length in Part I of the article. (Short version:
Scope arguments for restricting a right, which I think are often quite strong: 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.

Burden arguments for restricting a right, which I also think are often quite strong: 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.

Reducing danger arguments for restricting a right, which I find troublesome for reasons I discuss at pp. 20-31: 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.

Do read the comments on the selections. EV responds to some of those, and the purpose of this exercise is to help make his paper stronger.

But it certainly is an academic, law-professor's expression.

GuyW
04-09-2009, 9:36 AM
I worry that more of his personal opinion imbues his research than even he may be aware of.

-Gene

...almost always the case, at some level. One can read academics who write, "I used to think...", but what changed? Often, it was merely their acceptance of what their reason told previously them...
.

.

GuyW
04-09-2009, 9:38 AM
"...that doesn’t rise to the level of unconstitutionally “infring[ing]” the right."

Says he, as he blythely redefines "Infringe".
.