Eugene Volokh on the Low Hanging Fruit

Professor Eugene Volokh looks at the low hanging fruit in terms of laws that are unconstitutional under the Second Amendment. I don’t have much to add, and agree many of the items he mentions ought to be up for consideration. I do want to comment on this, however:

Bans on so-called assault weapons, for instance, strike me as unwise, but they don’t themselves practically interfere with self-defense in a substantial way: people remain free to have guns that are just as effective for self-defense.

Isn’t this the same argument that the District of Columbia made in the Heller case? They were free to ban handguns because the people still had shotguns and rifles as options. Who’s to decide what burdens self-defense in a substantial way? If the vast majority of self-defense incidents only require 0 to two shots, why can’t the state outlaw anything that isn’t a two shot derringer, or a double barrel shotgun? If you use a test like that, it’s no real restraint on government, and requires judges to make decisions they have nearly no expertise to make; what does or doesn’t constitute a substantial burden on self-defense. The common use test, for all its flaws, is far preferable, because then the people get to decide.

10 thoughts on “Eugene Volokh on the Low Hanging Fruit”

  1. Remember, he’s looking for “low hanging fruit” here. That’s not to say other issues are not worthy of repeal, just that some things are _so_ easy as to be nigh unto no-brainers.

    He’s not talking semi-auto “high capacity” handgun vs single-shot bolt-action rifle here, methinks he’s referring to “cosmetic differences only” alternatives. We wasted a LOT of effort in the 10 years of the AWB clamoring for what really was trivial differences (I’m not saying they weren’t worth opposing, just that effort could have been much better spent on, say, overturning the 10-round limit and repealing 922(o) instead).

    Bottom line is “shall not be infringed.” Period. If it infringes, it isn’t valid. EV’s list is just some which are easy to knock off; AW bans are of course worthy of elimination, they’re just going to take more effort than these 10.

  2. I agree with ctd that Volokh is probably referring to cosmetic differences. My right to self-defense is not substantially impacted by whether I can have a shoulder thing that goes up AND a super-stabby bayonet mount AND a folding stock, or if I have to pick two of three. It’s a stupid, irrational law the infringes on the 2nd Amendment, without question. Magazine capacity was the only thing that made an actual difference rising above mild annoyance. The point (for the ban’s supporters) was demonization; going after the deodand to incite political support. It created an official category of targetted firearms, and it didn’t matter that the category made no sense.

    The flaw in the common use test is that many things are not in common use because the government has banned or regulated them out of common use. I’m going to be nervous about that one until the Supreme Court cuts that knot in half.

    1. Well then… It would seem that the “common use” that you cite would be a dead end in that case. If something is regulated/banned so that the common man can’t own them or has trouble owning them legally, that would seemingly constitute interference in deciphering the common use test, making it irrelevant as a deciding factor in a case. Common use really would only apply for an item that the masses would already have a chance at procuring legally. So “common use” to me wouldn’t really apply to NFA items because the $200 tax places a substantial burden that interferes with the test but would not necessarily allow the test to fail. I’m no legal scholar, but it should be argued. But there’s no sense barking up that tree unnecessarily.

    2. Common use is only one prong of the two-pronged test. The second prong is precisely germane to the issue, namely, that arms must have some reasonable relationship to the preservation or efficiency of a well-regulated militia.

      As long as we continue to ignore this fact, the ‘debate’ will continue.

      The two-pronged Miller test is precedent.

      Precedent. Which means that lower courts must adhere to it.

    3. Your observation is correct as far as it goes, but the reality is that full-auto firearms were never in common use, and unlikely to ever be in common use; only a tiny percentage of “enthusiasts” find them “useful” for entertainment purposes. It’s doubtful that the NFA substantially affected this natural phenomenon.

      That aside, a true originalist would argue that “in common use” when the enumeration was written was tantamount to the “ordinary military equipment” relevant to the times.

      Here, Scalia contradicts himself; while accepting Miller’s categorization, he goes on to state “[T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” – DISTRICT OF COLUMBIA v. HELLER (No. 07-290) 478 F. 3d 370, affirmed.

      Therefore the question is answered without even really being addressed. The Court made this distinction (wrongly, in my opinion) in 1939, and stare decisis precludes further argument. Based upon this fact, insisting that the second prong of the Miller test is binding as literally as the first is an argument with a high percentage of winning, given the current makeup of the Court.

      Reality being what it is, we must go with what will win before the Court and not waste time arguing a lost cause.

  3. “The power of the sword, say the minority…, is in the hands of Congress. My friends and countrymen, it is not so, for The powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans. The unlimited power of the sword is not in the hands of either the federal or state governments but where, I trust in God, it will always remain, in the hands of the people.”

    Tench Coxe

    The Pennsylvania Gazette, Feb. 20, 1788.

  4. The court isn’t going to give us machine guns. That was made apparent in the Heller decision. Yes, it doesn’t logically comport with the idea of a common use test. No the court didn’t care.

    The common use test certainly isn’t perfect, but it’s a sight better than judges deciding what does or doesn’t constitute a substantial burden on your right of self-defense. That test puts almost nothing outside of the hands of judges.

    1. Again, prong number two, prong number two, prong number two.

      It is the complete disregard for this ingredient in the Miller Court’s categorization that improperly upholds “assault weapons” bans.

      Add the second prong, and that validation evaporates.

  5. If a jurisdiction can ban guns that are among the most popular and least misused weapons in the nation, then they can ban *anything.*

  6. As I indicated to Professor Volokh in comments on his article, the test has already been established in precedent.

    U.S. v. Miller (1939) created the two-pronged test which, if precedent actually means anything, describes the types of arms that have undeniable protection under the Second Amendment; arms in common use that have some reasonable relationship to the preservation or efficiency of a militia.

    There simply can be no successful argument that so-called “assault weapons” do not meet both prongs if this test, hence banning any of them is facially unconstitutional.


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