Criticisms of Eugene Volokh’s Framework, Part I

Eugene Volokh is highlighting his recent law review article detailing a framework in which to think about the Second Amendment in terms of self-defense (he does not go into the resistance to tyrannical government arguments).  I read this in draft, and believe it to be a very thorough and coherent conception of the Second Amendment from the perception of self-defense.  I encourage everyone to take the time to read it (it’s long).  I do, however, have some minor issues with his reasoning as I will lay out over a series of posts.  I will begin with assault weapons.  Let’s start on page 1484 (or 42 on the PDF) of Prof. Volokh’s review:

This is clearest when we look at bans on so-called “assault weapons.” Such bans have been hotly controversial, but the dispute about them is largely symbolic. The laws generally define assault weapons to be a set of semiautomatic weapons (fully automatic weapons have long been heavily regulated, and lawfully owned fully automatics are very rare and very expensive) that are little different from semiautomatic pistols and rifles that are commonly owned by tens of millions of law-abiding citizens. “Assault weapons” are no more “high power” than many other pistols and rifles that are not covered by the bans. Definitions of assault weapons reflect this functional similarity: They often focus on features that have little relation to dangerousness, such as folding stocks, pistol grips, bayonet mounts, flash suppressors, or (for assault handguns but not assault rifles) magazines that attach outside the pistol grip or barrel shrouds that can be used as hand-holds.

It’s therefore hard to see how assault weapons bans would do much to decrease crime, since even a criminal who complies with the ban could easily find an unbanned gun that is as criminally useful as the unbanned gun, and is as dangerous to victims as is the banned gun. The class of assault weapons is indeed not “typical,” at least in the sense of common use. But there is no reason to think that most assault weapons owners have them for criminal purposes. And assault weapons are not more dangerous than the usual gun, which in my view makes them fit within the category of “arms.”

Nonetheless, the availability of close substitutes for assault weapons— the very reason why assault weapons bans are unlikely to work—also makes it hard to see how assault weapons bans would materially interfere with self- defense, at least given definitions such as those in the 1994 federal statute. And the reasons the Court gave for why handgun bans are impermissible—that handguns are “easier to hold and control (particularly for persons with physical infirmities), easier to carry, easier to maneuver in enclosed spaces, [or easier to handle while] still hav[ing] a hand free to dial 911”—do not apply to assault weapons bans: Assault weapons are no more useful for self-defense than are many other handguns, rifles, and shotguns that aren’t prohibited by assault weapons bans. Assault weapons bans might well be pointless, and might offend gun owners who want the freedom to choose precisely what sorts of guns they own. But this need not make assault weapons bans unconstitutional, if the courts focus on whether the law substantially burdens self-defense.

I disagree.  Prof. Volokh does an excellent job of outlining why so-called assault weapons are neither more dangerous or unusual than other types of firearms, but I think his conclusion that easy substitutes are available overlooks an important factor, and a factor that I do not think should be readily discounted by the courts.  The courts ought to categorically reject any substitution arguments, in determining the burden on self-defense, because substitution arguments will invariably overlook the multitude of factors that go into determining which gun is right for someone.  It’s a complex equation that the courts ought not intrude themselves into, once the dangerousness argument has been dealt with.  Let me tell you a tale of two rifles.

One of the most popular semi-automatic rifles on the market is the SKS.  I can hardly think of any of the gun safes I know that doesn’t have at least one, and they are becoming increasingly popular for hunters on a budget in states that allow hunting with semi-autos.  While in some states, they are banned in certain configurations, the SKS remains cheap and popular because they are considered “curios” under federal law, they can be imported into the country largely in tact from surplus stocks in Eastern Europe.  They require no additional work to comply with federal or most state laws once they are imported.  A decent rifle can be had for under 200 US dollars in most gun shops.

In contrast, we can look at the semi-automatic Kalashnikovs.  A decade ago, most of these rifles could be had for around 300 dollars.  By all rights, the Kalashnikov should be no more expensive than the SKS, but is because manufacturers can’t import them legally, but have to do a great deal of assembly in the United States, with American made parts, to get around the import restrictions.   In fact, due to increasing restrictions by the federal government in importation of receivers, under the still standing importation ban instituted under the first Bush Administration, the price of these has risen to more than 600 dollars, since it’s forced manufacturers to do more of the work here.   They are now, because politicians and bureaucrats have deemed them “assault weapons”, out of the price range for a lot of individuals who lack the means the buy them.

As tempting as it might be to argue, because the SKS is available, and cheap, it’s a reasonable substitute for the Kalashnikov, that overlooks several factors.  For one, the Kalashnikov takes a detachable magazine, which has a lot of advantages for self-defense.  Chief is that the magazine can be stored already loaded, separate from the firearm, eliminating the need to store the rifle loaded.  It also allows for quicker reloading, if necessary, or if a magazine fails.  There are conversions for the SKS to give it a detachable magazine, but they make the gun less reliable, and make it illegal in a few states.  Second, the Kalashnikov is much shorter than the SKS, which makes it more convenient to store, and makes it easier to maneuver around tight corners.  More importantly, perhaps, the shorter rifle makes it harder for an assailant to grab.  The pistol grip on a Kalashnikov makes it easier to wield for most people, and particularly easier to wield by someone who has arthritis of the hands, or who perhaps isn’t quite strong enough to get a firm grip on a standard rifle stock.  Along that same vein, the Kalashnikov is also lighter, and easier to mount accessories to.

I think it’s also reasonable to argue that the right to keep and bear arms also must include the right to practice with them, and with the Kalashnikov being available in many more calibers than the SKS, it offers advantages in that regard.  The firearm I can find the most ammunition for right now is my 5.45x39mm Kalashnikov.  It’s one of the few rounds that’s still cheap and relatively available.  I don’t shoot my SKS as much because the ammunition it takes is harder to come by right now.

It’s quite easy to suggest that the courts can consider the substitution argument, which from the comfort of the bench, seems to be a tempting game to play.  But it’s not so easy if the proffered substitute doesn’t work for a specific individuals needs, limitations, stature, etc.  What works best for the individual should be left to the individual.  That is, after all, why it’s an individual right, is it not?  Once the courts dispose of the “dangerous and unusual” argument when it comes to semi-automatic rifles, that’s where the analysis should end.  If semi-automatic rifles are judicially noticed as being useful for self-defense, then the Second Amendment should protect their ownership in any configuration that may suit a specific individual need.  To do otherwise would be doing the Second Amendment rights of a great many Americans a grave disservice.

UPDATE: Part II is here.

UPDATE: Part III is here.

10 thoughts on “Criticisms of Eugene Volokh’s Framework, Part I”

  1. I rather like your argument, yet again we get to the NFA: forward grips on pistols and stocks on pistols. One way or another the NFA is going to need a serious looking at by the courts.

  2. So if I understand Volokh correctly, bans on so-called “assault weapons” are arbitrary and capricious, yet bans on “assault weapons” are still constitutional? It seems to me that his substitution argument is nothing more than a restatement that “assault weapon” definitions are arbitrary and capricious.

    In other words, AW bans are arbitrary and capricious, yet that is also why AW bans don’t violate the 2nd Amendment! That’s crazy talk.

  3. And another thing…

    The common use factor is rapidly becoming a non-issue with so-called “assault-weapons”, thanks to the the Obama inspired great gun buying panic of 1998-1999.

  4. Gentlemen, this convoluted complexity of trying to determine which guns are legitimate for the citizen to keep for self-defense is exactly why we should believe the Second Amendment means what it says: my right to militia arms to secure my State’s freedom from national tyranny, abuse, and usurpation cannot in any way, shape or form be regulated by the national government! This is not a theory; this is not an “argument;” this is a fact of supreme law, period! When I read the Second Amendment, I find there is absolutely no mention of self-defense! So why go there? All this dissembling by the various branches of the central government about a so-called Second Amendment right to self-defense is simply a tactic to usurp and undermine State sovereignty and power for the unconstitutional enhancement of the national government. Our Founders would not stand for such abuse of national power. We would not be celebrating this day if they did. Let us stop playing their game with their ball according to their unconstitutional rules. Let us read the exact words of the 2A to them over and over and over until they get it right! They have no argument! We have black and white print to PROVE our position. Let’s use it!
    Happy Freedom Day!

  5. Regarding the vacuous “substitution arguments”:

    “It is no answer to say, as petitioners do, that it is permissible
    to ban the possession of handguns so long as the
    possession of other firearms (i.e., long guns) is allowed.”

    dicta from DC v Heller, 2008

  6. I’m with Arnie.
    I read the Second Amendment as recognizing my right to have whatever personal arms, for whatever purpose (excepting to deprive others their rights), in whatever number, caliber, configuration, etc., as I deem prudent or desirable. Neither the State nor anyone else has any authority to dictate otherwise.
    Molon Labe
    Up yours.

  7. Thank you, B, for the affirmation.
    Just to be clear, I can prove the Second Amendment prohibits all regulation of personal possession of arms by the national government, but I cannot make that claim with any confidence regardng State regulation. The Bill of Rights was written to protect our unalienable rights, and our States’ sovereign powers from abuse, usurpation, and infringement by a tyrannical CENTRAL (read national or “federal”) government, not to protect citizens from their State governments, nor to limit or restrict State powers. That was the job of State Constitutions. The Fourteenth Amendment is of questionable import on this issue, as courts have danced around a maze of convoluted theories on employing it against State powers, fabricating new theories decades after its ratification.
    But the real threat is the national government. The Founders knew that, and that is why we must insist that the literal meaning of the Second Amendment be absolutely enforced against ALL Federal regulations on civilian possession of arms!
    But while we are talking that talk, prudence demands that we also purchase and store all the militia arms and ammo we can reasonably afford because, gentlemen, history hath shewn that tyrants do not surrender power without a fight!
    Let freedom reign!

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