Guns as smut

Law professor Eugene Volokh pens a rebuttal to yet another tiresome anti-gun law review article, this time one that seeks to analogize guns to smut (obscenity):

Analogies between the First Amendment and the Second (and comparable state constitutional protections) are over 200 years old. District of Columbia v. Heller itself makes them, and they can often make sense.

Such analogies might, for instance, yield the conclusion that (1) most guns (like most speech) are fully protected by the Second Amendment, subject to some restrictions that leave open “ample alternative channels” for effective self-defense, but (2) some narrow categories of valueless or marginal weapons (like some speech) are unprotected. Distinctions between the two Amendments can make sense, too, though I leave them for other articles.

But Guns as Smut does something peculiar: It analogizes a core category of private arms to one of the least protected and marginal categories of speech (obscenity). It’s hard to see any justification for such an analogy, other than a purely instrumental one.

The premise of the First Amendment’s obscenity jurisprudence is that obscenity is historically recognized as one of the “limited areas” of speech that “lack any serious literary, artistic, political, or scientific value,” and are thus “not protected by the First Amendment.” Obscenity, at home or elsewhere, is a marginal category of speech that lacks the full protection that most speech gets. Because of this, selling, buying, and possessing obscenity in public places can be outlawed, and long has been outlawed. Only the special “solicitude to protect the privacies of the life within [the home]” leads to the prohibition on punishment for mere home possession of obscenity.

None of this analysis applies to guns. Possessing guns is traditionally legal. Guns do serve the self-defense value that the Court has found to be embodied in the Second Amendment. And, Heller held, ordinary guns are at the core of “arms,” not on the margin.

Even carrying guns in public places is traditionally legal (though often with license requirements), and serves the constitutional value of armed self-defense. But I need not rely on that: The premise of the Court’s obscenity decisions is that obscenity lacks constitutional value without regard to the place in which it may be present, though it may not be suppressed via intrusions into the home. That premise does not extend to private gun ownership under Heller.

And naturally Guns as Smut’s unsound premise leads to unsound results. If guns were really like obscenity, the government would be free to ban the buying of guns and not just their public possession. Guns as Smut’s conclusion indeed suggests that it “remain[s] unresolved” whether the government could “so restrict[] the commercial availability of guns that only guns in situ in the home, or those made by enterprising amateur gunsmiths, would be beyond regulation”; the Article’s interpretation of Heller “will not, and cannot, provide [an] answer[]” to that question.

Yet Heller expressly holds that the Second Amendment secures an individual right to possess handguns “for the core lawful purpose of self-defense.” Whatever such a right might mean, it must include the right to accomplish that core lawful purpose by acquiring the handgun. No sensible interpretation of Heller can leave the status of that right “unresolved.” And no sensible analogy between the Second and First Amendments can analogize typical privately owned arms to material that the Court has expressly held lacks First Amendment value. ...

Read the rest of Professor Volokh's rebuttal here, as he rips apart the asinine guns-as-smut argument. What a ridiculous premise -- that the arms protected by the Second Amendment deserve no more protection than that afforded obscenity under the First Amendment. That is, none at all (obscenity is not protected speech). Are there no lengths that these collectivist pukes will not go to try to destroy the parts of the Constitution that they don't like? Ok, it's a rhetorical question -- the collectivist abhors individual liberty, and will do anything to eradicate it.

Heller and the Triumph of Originalist Judicial Engagement

Alan Gura, lead plaintiffs' attorney in last year's historic Heller Supreme Court decision, has written a law review article responding to Judge J. Harvie Wilkinson's criticism of Heller as an example of judicial activism.

From the abstract:

Judge J. Harvie Wilkinson criticizes the U.S. Supreme Court’s landmark decision in District of Columbia v. Heller through the lens of post-Roe judicial conservatism, a doctrine that exalts judicial deference to the political branches above the interest in individual liberty. But that vision is incompatible with the sort of judiciary the Framers established, and Wilkinson’s prescription does not lay out neutral guidelines for use of the judicial power. In Heller, the Supreme Court acted exactly according to Constitutional design, enforcing a fundamental right against recalcitrant political forces. Not just conservatives, but all Americans, should rejoice in the decision.

Read the law review article here.

Supply-side restrictions and gun control

From a law review article entitled Imagining Gun Control in America: Understanding the Remainder Problem by Professor Nicholas Johnson, published in the Wake Forest Law Review:

Now that the Supreme Court has ruled in District of Columbia v. Heller that the Second Amendment prohibits general disarmament, the temptation is to view Heller as the central obstacle to effective gun controls. This is a mistake born of our failure to confront the incoherence of supply-side controls pre-Heller. While Heller technically prohibits the supply-side ideal, supply-side rules are, and long have been, blocked by structural barriers rooted in the nature of our armed society—viz., 300 million guns tightly held by people who believe they are uniquely useful tools.

Two things are foreseeable. First, supply regulations on the edges of Heller will have only symbolic effect because Heller plainly bars laws intended to cut supply to zero. Second, because Heller formally blocks the supply-side ideal, its trajectory will be the focus of political and constitutional warfare. Underlying this will be the mistaken perception that, with sufficient political shift and Heller nullified, supply controls still might work in America. Understanding the structural barriers to supply controls will help us avoid that mistake.

This Article will illuminate those structural barriers by removing, theoretically, the constitutional impediment of Heller and the political impediments to the supply-side ideal. Assume, therefore, that Heller is reversed or explained away. Assume further that the political barriers to sweeping supply controls are overcome. Now imagine gun control in America.

Part I elaborates on the supply-side ideal as the foundation of our most ambitious gun control proposals. Part II explains the primary structural challenges to the supply-side ideal and introduces the remainder problem as a peculiarly American obstacle to supply controls. Part III presents the remainder problem and the defiance impulse as both cultural and physical phenomena that block supply-side rules. Part IV evaluates a series of familiar gun control proposals in the context of the structural (and incidentally constitutional) barriers to supply-side regulation. [footnotes omitted]

Read the article here.

Shall-issue laws and crime

Another academic article on the relationship between shall-issue concealed carry laws and crime. Via Volokh:

A new article has recently appeared in a peer-reviewed journal on the issue of whether "shall issue" right-to-carry concealed weapons laws ([requiring] authorities to issue concealed-weapons weapons to anyone who applies without a criminal record or history of mental illness). The article, found here, concludes that such laws are generally beneficial.

The article, written by Carlisle Moody and Thomas Marvell, rebuts the 2003 article in the Stanford Law Review by Ian Ayres and John Donohue. Ayres and Donohue found (contrary to the seminal work of John Lott and David Mustard) that shall-issue laws actual lead to an overall increase in crime. ...

The original Ayers and Donohue article can be read here.

The Moody and Marvell article can be read here.

Obama's attempt to destroy the Second Amendment

From a Pajamas Media article by noted pro-gun attorney David Hardy:

During Obama’s tenure, the Joyce Foundation board planned and implemented a program targeting the Supreme Court. The work began five years into Obama’s directorship, when the Foundation had experience in turning its millions into anti-gun “grassroots” organizations, but none at converting cash into legal scholarship.

The plan’s objective was bold: the judicial obliteration of the Second Amendment.

Joyce’s directors found a vulnerable point. When judges cannot rely upon past decisions, they sometimes turn to law review articles. Law reviews are impartial, and famed for meticulous cite-checking. They are also produced on a shoestring. Authors of articles receive no compensation; editors are law students who work for a tiny stipend.

In 1999, midway through Obama’s tenure, the Joyce board voted to grant the Chicago-Kent Law Review $84,000, a staggering sum by law review standards. The Review promptly published an issue in which all articles attacked the individual right view of the Second Amendment.

In a breach of law review custom, Chicago-Kent let an “outsider” serve as editor; he was Carl Bogus, a faculty member of a different law school. Bogus had a unique distinction: he had been a director of Handgun Control Inc. (today’s Brady Campaign), and was on the advisory board of the Joyce-funded Violence Policy Center.

Bogus solicited only articles hostile to the individual right view of the Second Amendment, offering authors $5,000 each. ...

Go read the article here. Having served as an editor on law review during my law school days, I can say that the arrangement of having an outsider edit an issue would be quite unusual. Having all articles in a "theme" issue, particularly on a topic as contentious as gun-control or the Second Amendment, reflect only one side of the argument with no opposing viewpoints would also be highly unusual.