Month: July 2009

Former Governor and Attorney General of California, Jerry Brown, has submitted a brief in the Chicago case favoring incorporation.   How is he expecting to get us all into the hippy concentration camps if we’re all armed?

This is the last bit of writing I plan to do on Professor Volokh’s law review article.  See Part I here and Part II here.  I don’t mean these criticisms to take away from the otherwise well thought out and workable framework for the Second Amendment when it comes to self-defense, but I think those of us who spend more time in the issue also need to take part in the conversation.

My final criticism centers around the distinction between short-barreled rifles, and short-barreled shotguns, both of which are restricted by the National Firearms Act of 1934.  Professor Volokh, on page 1488 (Page 46 on PDF), suggests:

Machine guns, short-barreled shotguns, and still more dangerous military weapons (such as surface-to-air missiles or grenade launchers) are outside the scope of “arms,” and may thus be banned. Moreover, such bans do not substantially burden the right to keep and bear arms for self-defense.

Short-barreled or otherwise sawed-off rifles would likely be arms simply because they aren’t materially different from handguns, which certainly qualify as arms. A handgun is just a very short-barreled rifle (some rifles even have pistol grips), and it’s hard to see why a short-barreled rifle would be materially more dangerous than the even more concealable handgun. But for the same reason it’s hard to see why a ban on short-barreled rifles would materially burden the right to keep and bear arms in self-defense, when handguns remain available.

Now, I understand that Heller has largely stuck us with the short-barreled shotgun language, in that the ruling specifically mentions it as not being a protected arm.  Plus, we have Miller, which may not have categorically ruled a short-barreled shotguns outside of Second Amendment protections, at least said that the Court couldn’t just take notice of the fact.  Precedent cuts even more against short-barreled shotguns being protected than machine guns.  So it’s quite useful to find a means, as a matter of court strategy, to distinguish between short barreled rifles and short barreled shotguns, if one is interested in saving short-barreled rifles.

But as a matter of practicality, I’m not convinced there’s any real practical difference between a short barreled rifle and short barreled shotgun, and I think the Court was wrong to include it in its dicta.  There’s not much that can be said about the former that’s not true about the latter.  Professor Volokh argues:

Likewise, short-barreled shotguns are practically more dangerous than the kinds of guns that are in common use among law-abiding citizens, because they combine a lethality close to that of a shotgun—at least at the short distances characteristic of the typical criminal attack—with a concealability close to that of a handgun.

I could easily argue the same thing about a 11.5″ barrel AR-15, and the 11.5 barrel AR-15 retains much of the same lethality as a 16″ barrel AR-15 rifle.  Moreover, the same firepower is available in a pistol version, such as the Carbon 15, which while regulated as an assault weapon in some states, is legal in the vast majority of states, and is regulated as a handgun under federal law.  Does adding a stock make it materially more dangerous?  It could easily be argued that under the stress of a self-defense situation, it makes the defender more likely to hit the attacker than an innocent bystander, because of the increased stability given by the stock. The handgun option on shotguns is not generally available, because under NFA, smooth bore pistols are considered AOWs, and so shotguns with pistol grips have to meet minimum barrel and length requirements.  That hasn’t stopped some manufacturers from thinking the utility is great enough that many people will be willing to comply with the federal requirements.

I think it makes sense to suggest that if handguns are protected, because they are useful for self-defense in the home, that short barreled shotguns and rifles have even more utility, and are only uncommon because of legal restrictions on them.  I can understand why, as a matter of strategy, we might want to distinguish between the two, but I don’t think the case can really be made convincingly.  Portions of the NFA were not adopted for rational reasons, and the original intent of the Act was to place heavy restrictions on handguns.  Heller ruled that out, and I think it was short sighted of the Court to suggest that the other limitations were somehow fine just because they are “longstanding.”   What if the original language for handguns, which later created the AOW laws when it was sloppily removed, had remained in the Act?  Would the Court have had to rule differently in Heller because the restriction was “longstanding” and handguns were uncommon?

While I would like to see machine guns protected by the Second Amendment, I can at least see a clear distinction between machine guns and other types of arms, at least when it comes to the purpose of self-defense.  I can’t see any such distinction for short barreled rifles and shotguns.  If the enhanced lethality of these arms is a problem, then only handguns should have Second Amendment protection.  Otherwise, I fail to see how these items are distinct for the purposes of self-defense from other arms which are protected.  The Supreme Court apparently was not persuaded by the concealability of handguns, so I don’t see why it would be persuaded by such an argument for short barreled rifles and shotguns.

In part one I looked at Professor Volokh’s assertion that assault weapons bans could be constitutional, because they did not materially interfere with self-defense.  The next issue I will look at, in Professors Volokh’s Seocond Amendment framework, is that of magazine capacity.  Overall, I like Professor Volokh’s framework a lot, but here are some things to think about in regards to magazine capacity:

Large-capacity magazine bans are a closer question.   A gun with a larger than usual capacity magazine is in theory somewhat more lethal than a gun with a 10-round magazine (a common size for most semiautomatic handguns), but in practice nearly all shootings, including criminal ones, use many fewer rounds than that.

A common size in California, where anything that holds more is illegal.  In other states, where there are no such restrictions, larger magazines are the standard, rather than the exception.  Once the federal assault weapons ban disappeared, everywhere else in the country, magazine sizes went back to the way they were before the ban.  That’s what people overwhelmingly choose to buy.  Go into a gun store today, I doubt you’ll easily find a 10 round Glock magazine or a 10 round AR magazine.  They are still produced, and you can find them online, and in shops in border states, but mostly because demand still exists in states like New Jersey, California, and New York, which still limit magazine capacity.

And mass shootings, in which more rounds are fired, usually progress over the span of several minutes or more. Given that removing a magazine and inserting a new one takes only a few seconds, a mass murderer—especially one armed with a backup gun—would hardly be stymied by the magazine size limit. It’s thus hard to see large magazines as materially more dangerous than magazines of normal size.

I think that’s largely correct, so like with assault weapons, we get the dangerousness determination out of the way, and it’s in our favor.  But the reason the restriction has no effect on the attacker is because in most mass shooting situations, the attacker has command of the situation, and is not under any time pressure to perform his reloads.  The Virginia Tech killer reloaded several times during his spree, because for him it was fish in a barrel.  Someone defending themselves is presumably up against someone presenting a deadly threat.  At that point time, pressure and adrenaline come into play, and a quick magazine change might not be so easy, unless one is very well practiced on magazine changes.  Most people who have a gun for self-defense hardly practice them.

I agree with Professor Volokh that a larger magazine capacity does not make a gun materially more dangerous, but that’s not to say that being forced to change magazines in the middle of being attacked is a minor burden.  Stress does remarkable things to your ability to think, perform fine motor skills, and as the defender, you take every advantage you can get.  That’s why police overwhelmingly use larger magazines, and civilians, given the choice, overwhelmingly choose to carry them.

Still, these same reasons probably mean that the magazine size cap would not materially interfere with self-defense, if the cap is set at 10 or so rather than materially lower.  First, recall that until recently even police officers would routinely carry revolvers, which tended to hold only six rounds.  Those revolvers were generally seen as adequate for officers’ defensive needs, though of course there were times when more rounds are needed.

Police departments nearly universally abandoned the revolver for pistols holding 15 or more rounds as soon as they became available in the marketplace.  Suggesting that a few years go they were the standard I don’t think means much without discussing the reason why departments abandoned them as soon as there were viable alternatives.  If magazine capacity is such a minor burden on self-defense, why is it that no department is equipping its officers with reduced capacity sidearms?  Why in states that do not have magazine restrictions does the free market not generally support smaller magazines?

Second, the ability to switch magazines in seconds, which nearly all semiautomatic weapons possess, should suffice for the extremely rare instances when more rounds were needed (though to take advantage of this, the defender would have to make a habit of carrying both the gun and a spare magazine).

He’s correct about the rarity of the situation where you’ll need more than a few rounds, but I’m not sure why that matters.  Violent criminal attacks by one stranger against another are pretty rare to begin with, which is why some people suggest that folks shouldn’t be allowed to carry guns in public at all.  People choose to carry a firearm because they find the burden of doing so to be less than the burden of a very small possibility of being dead or seriously injured.  The Second Amendment would seem to interfere with the government trying to make that choice for its citizens.

But why should the Second Amendment allow the government to further intrude itself into the same calculus when it comes to what magazine you can equip yourself with?   True, situations requiring more than ten rounds are rare, but the burden of carrying my Glock 19 with 15 rounds in it (which it is designed for) as opposed to 10 is minuscule.  The sensible thing to do in that case is to carry it with the amount of rounds it was designed for.  Carrying an extra magazine is considerably more burdensome, so burdensome I actually find carrying a backup gun to be the easier option.  For women, having to carry an extra magazine or an extra gun is even more of a problem.  This is probably a far more problematic issue for women as it is for men, who generally have more room on their bodies for hiding things.

I don’t see why the Second Amendment would protect a citizen’s right to choose whether or not to carry a gun to defend against violent attack (pretty rare), then on the basis of no finding on the “dangerous or unusual” nature of a 15 round magazine, as opposed to a 10 round magazine, allow the government to regulate the kind magazine one could carry in that gun, especially on the flimsy argument that “Carrying an extra magazine is not much of a burden, and you don’t really need those extra rounds anyway.  But oh yeah, police defending themselves do need them, so better have an exception for them.”

UPDATE: Part III is here.