search
top

Quick Thought on Substantial Burden Analysis

Professor Eugene Volokh is famously known for liking substantial burden analysis when it comes to the Second Amendment, particularly when it comes to deciding the constitutionality of magazine bans.

I came across an interesting statistic this morning that got me thinking. According to a Pew Poll released earlier in the year, the typical American reads five books a year, just like a typical self-defense shooting only involves two shots. For the sake of argument, it would not be too substantial a burden on a person’s First Amendment right to limit the number of books Americans can buy in one year to twenty-five books.

We could take this substantial burden analysis a step further, and suggest that since the average person learns to read and write at about age seven, and the average person lives until approximately 78 years of age, it would be hardly a substantial burden on a person’s First Amendment right to limit the size of private library to 1775 books. No person may own more than 1775 books.

And why would this not be constitutional? After all, it’s possible to limit magazine sizes to ten rounds, and the consequence if someone runs out of ammunition during a violent attack are far more severe than a person just not being able to buy as many books as they would like, or have large libraries of books at their private residences. Running out of books is surely a lesser problem than running out of ammunition at a critical juncture!

UPDATE: One might argue there’s no governmental interest, but suppose it’s saving trees? You can have as many e-books as you want, but you’re strictly limited in paper books. The surplus books can be recycled and put back in to supply existing paper needs.

23 Responses to “Quick Thought on Substantial Burden Analysis”

  1. Bitter says:

    “From my cold, dead hands” applies just as much to my Kindle. If it ever disappears, I’ll know where to look now, dear. :p

  2. The Jack says:

    Oh!

    Don’t forget the need for a book registry, and to make it so books can only be exchanged at your local library.

    We don’t want to have a pipeline of “ghost books” where people have more than their fair share do we?

  3. Ed says:

    Hey wait eBooks are “ghost books” and need to be banned.

    • Matt says:

      eBooks are the “smart guns” of the book world.

      • Exactly. If there’s ever a problem with e-books, proper authorities can activate their book jammers and remove the particular book from your reader.

        http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html?_r=0

        • Geodkyt says:

          Especially since Congress DOES have the Constitutional authority to make laws to regulate and defend copyrights:

          The Congress shall have Power. . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
          — (Article 1, Section 8, Section 8)

          Congress has far more explicit and enumerated Constitutional authority to regulate the First Amendment than it does the Second.

  4. Ish says:

    We should also restrict dangerous books to government experts, like Congressional researchers or agents of the Bureau of Alchohol, Tobacco, and Libraries. They are the only ones, that I know of, trained to comprehend complex literature.

    No civilian needs a book with more than 250 pages, written in or translated from a foreign language, written before 1934, or a host of other dangerous features of subversive assault literature,

  5. AndyN says:

    Our esteemed Secretary of State says that climate change is a national security issue. Trees suck earth destroying carbon out of the air. Killing trees for the no better reason than pleasure reading is surely a bigger threat to society than a guy in NY owning an unregistered Marlin 25.

    Does that “typical self defense shooting involves 2 shots” statistic include cops who shoot at scary looking people and family pets? Because if it does, from the reports of police shootings that make the news, I’d have to say that cops are badly skewing the average. I bet we could bring that average down to 1 if we made cops trade in their Glocks for wheelguns.

  6. Bubblehead Les says:

    On that same thread, how about we limit Lifetime Voting to, say 10 times? For ALL Elections? Wonder how the Pols would like that?

  7. Roberta X says:

    So, you’ve never seen the dining room or attic at Roseholme Cottage, have you? …Let’s just say that on sheer numbers, Tam and I have a couple orders of magnitude greater interest in the First Amendment than the Second — and we’re gung-ho as can be for the Second. :)

  8. Joethefatman™ (@joethefatman1) says:

    1775? Dang, I’d be looking at a reeducation camp life sentence. I’ve at least 2X more books than that just in my hallway. Never mind the rest of the house.

  9. P.M. says:

    “substantial burden” analysis is one of those things that IN THEORY might make sense in some Second Amendment cases; there really are such things as de minimis burdens. E.g. you have to throw in a cheesy dime store cable lock inside the box with new gun purchases. Superfluous but hardly equivalent to the SAFE Act or New York’s carry permit laws.

    The problem is just that, as so often before in this rodeo, it turns out federal judges cannot/will not apply that concept with a modicum of seriousness or understanding. And Volokh didn’t help matters much by thinking a 10 rd magazine limit isn’t a substantial limitation. And he’s a gun owner! Only a Californian gun owner could be off base in that way.

    In sum: Volokh is wrong about “substantial burden” and it has proven not to be a viable doctrine for the Second Amendment. It wasn’t completely ridiculous idea from the outset. It just flopped in practice because judges can’t be trusted to apply it correctly.

    He should learn from experience and jettison it in future writings.

  10. Patrick Henry, the 2nd says:

    Yep, the substantial burden test is a terrible one for fundamental rights. Applied to the first amendment it would lead to terrible rulings we all would dismiss. And the problem with Volokh’s analysis is he gets so much wrong with general gun situations. “Ten rounds are common.” “Until recently police used revolvers and they were considered adequate”. I mean come on!!

  11. Jeff O says:

    You are going to have to limit the availability of individual parts of a book too: make paper hard to get, because we don’t want anyone printing 3D books, and limit the glue supply to those who can show a substantial need. Huffing book glue is a nefarious crime! We are going to have an arguement over at which point does a book become a book… Is it when you apply a spine? Wrap the cover in leather? Maybe it’s when you get the first word in print!

    Excellent comparison Sebastian!

  12. Old NFO says:

    Substantial burden analysis when applied in such a ‘narrow’ construct, like 2A is a flawed method. You can restrict n+1 ways to the point that any analysis will yield the desired answer without consideration of minimally determined ‘outliers’… e.g. the average hit rate/rounds fired in a defense situation. (I ‘think’ that ratio is something like 2/12)…

  13. Kevin P. says:

    Another governmental interest in reducing the number of books in a household is that they become a flammable hazard. The house may burn down before firefighters get there.

Trackbacks/Pingbacks

  1. Undue Burden Analysis | hogewash - […] a copy of Mother Jones or Time with more than ten pages. Sebastian has an excellent piece over at…
top