Author: Sebastian

Eugene Volokh takes a look at a decision in California State Court of Appeals that rules .50 calibers are not constitutionally protected.  I think the state court’s analysis of the commonality of these types of arms is deeply flawed, as they are indeed “common” and not any more “dangerous” than other firearms that the State of California has not seen fit to ban.

I also don’t think one can take a self-defense approach to the Second Amendment that only considers self-defense under average circumstances.  A Barret M82, or an AR-15 may, under a state of civil order, not be ideal firearms for self-defense under most circumstances.  But what about a state of civil disorder?  I don’t think self-defense under extreme circumstances can be so easily dismissed.

As I’ve argued, like Professor Nelson Lund has also, that any analysis done under Heller’s common use test has to also consider police use.  Does a .50BMG pass this test?  I think it would be hard to argue they are common in police arsenals, though some exist.  But I would also argue that it is not especially dangerous, compared to other small arms.

After reading the opinion from the 7th circuit, in between sessions of trying not to crash virtual helicopters, I sense a lot of the infleunce of Judge Posner in the opinion.   Judge Posner wrote an unfavorable article bout Heller not too long after the decision, that appealed to the same arguments we see in the opinion:

The differences in attitudes toward private ownership of pistols across regions of the country and, outside the South, between urban and rural areas, are profound (mirroring the national diversity of views about gay marriage, and gay rights in general, as well as about abortion rights). A uniform rule is neither necessary nor appropriate. Yet that is what the Heller decision will produce if its rule is held applicable to the states as well as to the District of Columbia and other federal enclaves.

Heller gives short shrift to the values of federalism, and to the related values of cultural diversity, local preference, and social experimentation. A majority of Americans support gun rights. But if the District of Columbia (or Chicago or New York) wants to ban guns, why should the views of a national majority control?

But Heller made it pretty clear this wasn’t just about the right to own a gun, but protected a right to “use arms for the core lawful purpose of self-defense.”  This isn’t really about the right to own a piece of recreational equipment, it’s about the right to protect one’s own life.  What greater natural right can you name other than the right of self-preservation?  In fact, the word “self-defense” appears one hundred fifty six times in the opinion, and has been swept aside by the Seventh Circuit.  Why?  The opinion mentions self-defense, but seems to imply that self-defense could be considered a privilege created through statute.   Volokh has some extensive discussion around that topic too.

From Eugene Volokh.   I’m particularly interested in this footnote in Heller:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.

I was discussing with some other bloggers yesterday whether or not we’ll get incorporation.  I’m optimistic that we will, and this particular footnote is at least a little glimmer of evidence that perhaps we have a majority for incorporation as well.  I think the trick will be moving this case forward as quickly as we can, to cement that.  Incorporation is the keystone of this whole process.  Once we have that, we can argue about the boundaries of where the right begins, end and where government is allowed to exercise power.   But if the amendment can never be applied to the states, it will be a useful boundary on federal power, but strategically not nearly as valuable for our movement.

Brian Darling thinks that Sotomayor has some questions to answer during her confirmation.  I would agree.   She needs to explain her position on the Second Amendment.  Dave Kopel has more on Sotomayor as well.