Progress in Nordyke

The panel the case has been remanded to has asked for supplemental briefs speaking to the standard of review that ought to be used. Eugene Volokh also speaks of standards of reviews, addressing the SNBI crowd:

The trouble is that “shall not be infringed” doesn’t resolve much until we figure out what it means to “infringe” a right. […]

And I think as a general matter this is probably the right interpretation of the constitutional provisions. But in any event, it seems unlikely that courts will take an absolutist view towards the right to bear arms, to the point that any regulation of any possession of any arms in any place will be seen as an “infringement.”

Now this having been said, I’m happy to argue against restrictions that really are infringements; I discuss some in this article. But it’s not enough just to say “shall not be infringed,” especially when we’re in an area — such as government control over government property — where some degree of government restrictions have long been accepted in many areas.

The trick is to get the Courts to carve out a broad right. While I have some minor and specific disagreements with Professor Volokh in his paper Implementing the Right to Keep and Bear Arms, it provides the best context I’ve seen to date for thinking about the issue. It’ll be very interesting to see what the 9th Circuit has to say about this.

15 thoughts on “Progress in Nordyke”

  1. Sebastian,

    Just wanted to say “thanks” for pushing great content on the blog. It is a great one stop shop for a quick update on the latest legal events… We appreciate it!


  2. The Second Ammendment was obviously intended primarily to protect the ownership of military rifles. This means that automatic rifles are protected.

    If these rifles are considered more dangerous than ordinary firearms, well, we have the NFA that provides a much greater level of control of them than most other firearms. The overwhelming rarity of murders committed with legally owned MGs since 1934 demonstrates.

    I would be happy to keep the provisions of the NFA for protection against criminal misuse of NFA firearms, if the MG registery was re-opened.

    Right now, only a relatively well-off person can easily afford a modern military rifle. That’s clearly unconstitutional.

  3. I think the Second Amendment should protect automatic firearms, but the odds of that getting a stamp of approval from the Courts are pretty slim. I’d be happy just to get all semi-autos protected.

  4. I still don’t understand how they can argue that bans on certain types of weapons are fine because they aren’t in common use; the reason they’re not in common use in the first place is because they were banned.

    Were all lawyers members of the Tautology Club in law school?

    It also seems to imply that if every new weapons system were banned from civilian ownership immediately upon development, there wouldn’t be any problems; after all, it was never in common use.

  5. The funny thing is that fully-automatic guns *are* in common use! They are standard-issue arms to the United States military; thus, they should be easily obtainable by the unorganized militia. The only thing that prevents them from being in “common use” is a blatantly unconstitutional ban.

    I’m with Sebastian in the belief that full-auto ought to be legal. I’m not convinced of their utility–I’ve been convinced that we’re better off learning to aim our shots, than to “spray and pray”–but as long as full-auto and its cousins (eg, three-round-bursts) are available to our military, they ought to be available to the unorganized militia–us, as individuals–as well.

  6. I’ve argued that the common use test must include an examination of police use. A bit later, Law Professor Nelson Lund argued the same thing. The problem with using a military test is that the Supreme Court has ruled the Second Amendment right is centered around self-defense. I don’t believe they would entertain the notion that the Second Amendment had to enable the formation of private armies and allowed the keeping of offensive military equipment. Maybe this is incorrect historically, but it’s what we are stuck with.

    But the police presumably keep and bear arms for self-defense in the same manner as citizens. So if the police find machine guns useful for self-defense, then clearly they should be protected for civilians, right? The question then is, how common are fully automatic firearms among police forces?

  7. You could make an argument that SWAT teams are a distinct type, and less common form of police use. Granted, the more they use SWAT the harder that gets. But the point of it is to give a way for the Court to see the unworkability of it’s logic. That doesn’t mean you win, but maybe you win something when they try to resolve it.

  8. I have a feeling that Concealed Carry is going to be ruled a privilege, not a right, much like Driver’s Licenses.

  9. Heller and McDonald both cited cases where concealed carry could be banned because open carry was legal.

  10. I’m pretty sure that the vast majority of Police Dept and Sheriffs Office stock at least one Full Auto or Select Fire weapon. At the price any .gov pays for them, why not? They’re cheap, when you don’t have to deal with NFA issues.

  11. The trick is to get the Courts to carve out a broad right.

    That’s only half the trick. The other half is to get them to carve out an equally broad definition of “infringe.” These days, the word “infringe” connotes “encroach on.” Two centuries ago, the meaning was more along the lines of “destroy.” Cf. “frangible” bullets. Same root.

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