Category: Second Amendment

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Feminist Legal Theorizing about the Second Amendment: What Heller Missed

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In my previous post, I suggested that it’s long past time for a feminist analysis of the right to keep and bear arms.  Drawing on my forthcoming article, “Guns, Race, and Sex,” this part follows the Court’s lead in Heller v. McDonald by examining the ratification history of the Second Amendment.

In Heller, the Court split the provision’s text into two parts.  The majority decided that the second (“operative”) clause, supported by the first (“prefatory”) clause, equaled an individual right to possess and carry weapons for self-defense purposes–not limited to militia service.  But closer examination of the Amendment’s terms and the context surrounding its ratification suggests structural purposes extending the individual use of firearms.

Based on their experience dealing with a distant and detached sovereign, among other things, the framers were deeply troubled by the prospect of a standing army.  To them, professional soldiers would be loyal to and help empower central government.  At the same time, they recognized the need for national security.  As a result, the Second Amendment reference to the militia reflects a compromise among the framers to provide for defense, but doing so in a way that would not jeopardize state sovereignty.  Put differently, it’s another check on federal power.  Framers believed that the state’s citizens—local men—would be the best guarantors of peace.  Those men were “the people” the Amendment references, which further suggests that this phrase has structural significance.

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Feminist Legal Theorizing about the Second Amendment: Gun Violence is a Women’s Issue

Thanks so much, Naomi, for inviting me to blog this month.  It’s really an honor and pleasure to participate in the lively discussion on this forum.

Starting today, concealed weapons will be allowed on college campuses in Texas.  Ironically, this new law goes into effect on the solemn anniversary of the state’s largest mass shooting at none other than its flagship institution, the University of Texas.

More guns.  Just what we need.

After all, there haven’t been enough headlines about Black lives lost at the hands of police, or stunning murders of white police officers as they protected Black Lives Matter protesters.

Please forgive my sarcasm. I’m frustrated.  Before this year is out, I’m sure there will be more tragic slayings, more outpourings of grief and recrimination, but still no movement toward sensible reform of gun laws.

And, amidst the din, there is little to nothing coming from feminist legal circles.

Two summers ago, Nation commentator Dani McClain argued that “the murder of Black youth is a reproductive justice issue.”  Her call to action came to mind when I saw the “Mothers of the Movement” during the Democratic National Convention.  The mother of Jordan Davis, who was shot for playing his music too loud, openly hoped for a time when membership in this “club of heartbroken mothers” would shrink.

I had been puzzling over this issue for a while, struck by the no-regulation-no-time stance of the National Rifle Association.  In the context of reproductive justice, many have argued with success that the state’s interest in potential life trumps women’s fundamental interest in bodily integrity (thankfully, with Whole Woman’s Health v. Hellerstedt, the Court finally has drawn a line over which states cannot cross).  Imagine if potential gun buyers had to jump through the same hoops as women seeking abortions. As district court judge Myron Thompson stated in Planned Parenthood v. Strange, the legislature would have “a heck of a lot of explaining” to do.

Hypotheticals aside, it doesn’t take much digging to see the gendered and raced aspects of gun violence.  An August 2015 survey by the Ms. Foundation for Women showed that violence is a top concern for women.  Firearms figure prominently in the domestic violence context.  According to the Pew Research Center, gun owners are predominantly male and white—they are 82 % of firearm owners.

So, in the next three blog posts, I accept McClain’s challenge and apply a feminist analysis to the issue of guns in the nation.  Given the medium, the exploration will be brief; but, I discuss it more fully in a forthcoming article upon which my posts are drawn, “Guns, Sex, and Race:  The Second Amendment through a Feminist Lens,” which will be published in the Tennessee Law Review.

The feminist lens that I’m using is one that is intersectional and rooted in feminist legal practice:  social justice feminism (SJF). SJF emerged from practitioners responding to the calls from women of color and other marginalized women to recalibrate the women’s movement with a focus on their needs.  As my colleague Kristin Kalsem and I have explained, SJF is about uncovering and dismantling social and political structures that support patriarchy, while “recognizing and addressing multiple oppressions.” SJF methodologies focus on historical context, structural inequities, intersecting oppressions and underserved populations.  In so doing, they reveal issues liberal feminism might fail to recognize as having gender implications.

SJF’s historical method looks to the past in order identify the roots of structural inequalities and dismantle them.  In this sense, SJF follows in the footsteps of feminist and critical race theory in seeking to uncover lost histories, elevate the experiences of marginalized people, and reveal how traditional historical narratives mask and perpetuate subordination.

In the posts that follow, I will apply this methodology to the Court’s decisions in Heller v. District of Columbia and McDonald v. Chicago, cases that relied heavily on a so-called originalist telling of history.  However, SJF reveals the context omitted by the majorities in both cases—one that helped lay the foundation for a race-and gender-based social hierarchy.

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FAN 59.1 (First Amendment News) Online Instructions on How to Make 3-D Printable Guns — Protected Speech?

It’s fun to challenge the State to greater and greater levels . . . To challenge it successfully enough leads to its own suicide, its own collapse. . . . There is a certain kind of logic to it, an extreme logic, a fatal startegy.  — Cody Wilson (ReasonTV)

Cody Wilson -- have gun, will publish

Cody Wilson — have gun, will publish

Cody Wilson likes guns, of a certain variety that is. He savors guns of the 3-D printable genre. With Mr. Wilson’s instructions and a costly 3-D printer, anyone can make a “Wiki weapon” or “Liberator” as he tags these plastic guns that can fire deadly bullets. The process is summarized by the “techno anarchist” in this YouTube video (see also 25-minute ReasonTV video interview here).

What does this mean? Well, it “won’t be long before a felon, unable to buy a gun legally, can print one at home. Teenagers could make them in their bedroom while their parents think they are ‘playing on their computer.’ I’m talking about a fully functional gun,” adds New York Times reporter Nick Bilton, “where the schematic is downloaded free from the Internet and built on a 3-D printer, all with the click of a button.” Worse still, says Bilton, “[a]fter committing a crime with a printed weapon, a person could simply melt down the plastic and reprint it as something as mundane as a statue of Buddha. And guns made of plastic might not be spotted by metal detectors in airports, courthouses or other government facilities.” (See May 6, 2015 NYT story here re history leading up to this controversy.)

We’re not interested in making you a machine where you have a more productive life. We’re interested in multiplying the problem. — Cody Wilson (BackChannel, March 11, 2015)

According to a Fox News report, “[w]ithin two days of publishing the blueprints on the Internet, on May 5, 2013, 100,000 people around the world had downloaded them. The goal, Wilson said, was to invalidate the government’s ‘unconstitutional’ hold on gun technology.” Predictably, the government stepped in. The State Department “claimed Wilson violated the International Traffic in Arms Regulations, which ‘requires advance government authorization to export technical data,’ and as a result, could spend up to 20 years in prison and be fined as much as $1 million per violation.”

In October 2014 Wilson revealed his biggest project to date: the Ghost Gunner, a miniaturized [Computer Numeric Control] milling machine small enough to sit on a desktop. It’s thousands of dollars cheaper than big CNC mills [and can be used to make plastic guns] . . . . Defense Distributed sold out a pre-order of 500 machines, collecting nearly $700,000 in the process. Wilson moved back to Austin. By December, Defense Distributed was assembling Ghost Gunners in a new, 1,800-square-foot factory. [Source here]

Wired Magazine branded Cody Wilson as one of the “15 most dangerous people in the world.”

Acting through his 3-D gun printer company, Defense Distributed, the former University of Texas Law School student (he dropped out) has decided to defend his purported Second Amendment rights by way of a First Amendment defense to publish his computer code gun-making instructions. To that end, the 27 year-old Wilson has taken on the State Department by filing a lawsuit charging that the government’s attempts to prevent him from publishing his instructions are an unconstitutional prior restraint of his free speech rights.

  • Name of Case: Defense Distributed v. U.S. Dep’t of State (complaint here)
  • Named Plaintiffs: Defense Distributed & Second Amendment Foundation
  • Complaint filed in: US District Court for the Western District of Texas, Austin Division

The attorneys in the case are:

  1. Alan Gura (he successfully argued Dist. of Columbia v. HellerMcDonald v. Chicago)
  2. Matthew Goldstein, and
  3. Professor Josh Blackman.

Summary of Complaint

Alan Gura

Alan Gura

“Contrary to the Justice Department’s warning that such actions are unconstitutional, Defendants unlawfully apply the International Traffic in Arms Regulations, 22 C.F.R. Part 120 et  seq. (“ITAR”) to prohibit and frustrate Plaintiffs’ public speech, on the Internet and other open forums, regarding arms in common use for lawful purposes. Defendants’ censorship of Plaintiffs’ speech, and the ad hoc, informal and arbitrary manner in which that scheme is applied, violate the First, Second, and Fifth Amendments to the United States Constitution. Plaintiffs are entitled to declaratory and injunctive relief barring any further application of this prior restraint scheme, and torecover money damages to compensate for the harm such application has already caused.”

First Amendment claims 

  1. Defendants’ prepublication approval requirement is invalid on its face, and as applied to Plaintiffs’ speech, as an unconstitutional prior restraint on protected expression.
  2. Defendants’ prepublication approval requirement is invalid on its face, and as applied to Plaintiffs’ speech, as overly broad, inherently vague, ambiguous, and lacking adequate procedural protections.
  3. Defendants’ prepublication approval requirement is invalid as applied to Defense Distributed’s posting of the Subject Files, because Defendants have selectively applied the prior restraint based on the content of speech and/or the identity of the speaker.
  4. Defendants’ interruption and prevention of Plaintiffs from publishing the subject files, under color of federal law, violates Plaintiffs’ rights under the First Amendment to the United States Constitution causing Plaintiffs, their customers, visitors and members significant damages. Plaintiffs are therefore entitled to injunctive relief against Defendants’ application of the prior restraint.

 

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UCLA Law Review Vol. 61, Issue 2

Volume 61, Issue 2 (January 2014)
Articles

Negotiating Nonproliferation: International Law and Delegation in the Iranian Nuclear Crisis Aslı Ü. Bâli 232
Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing Jonathan Hafetz 326
Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection Daniel Schwarcz 394

 

Comments

California’s Unloaded Open Carry Bans: A Constitutional and Risky, but Perhaps Necessary, Gun Control Strategy Charlie Sarosy 464
Exclusion, Punishment, Racism and Our Schools: A Critical Race Theory Perspective on School Discipline David Simson 506

 

 

 

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Kentucky: Boy, 5, Kills Sister, 2

That’s not my headline.  It was in the New York Times earlier this month, in the section where the paper provides short blurbs about what is happening around the country.

My youngest daughter is in kindergarten.  Here is a list of some of the things that she either cannot do or is not allowed to do: cross a busy street by herself; pour milk from a full gallon jug; ride in a car without a booster seat; and tie her shoes (I know . . . she’s working on that one).  She is, however, a highly capable kid.  So it might be fairer to her if I listed some of what she can do:  get herself ready for school; ride her bike around the block; make her bed; use a variety of electronic devices that begin with an “i”.

But regardless of whether the list is of “cannots” or “cans,” it does not square with this statement from the county coroner in Kentucky:

 Mr. White said that the .22-caliber rifle had been kept in a corner and that the family had not realized a bullet was left inside it. “It’s a Crickett,” Mr. White said, referring to a company that makes guns, clothes and books for children.  “It’s a little rifle for a kid,” he said, adding, “The little boy’s used to shooting the little gun.”

I grew up in a small Wisconsin town.  At my high school, so many teachers and students were absent on the first day of deer season that school might as well have been cancelled.  Today some of my close relatives keep hunting rifles in their closets.  So while I absolutely do not want to suggest that I know anything about the family that suffered this terrible tragedy, I am familiar with the kind of culture in which a .22-caliber rifle is put in a corner.

Which is not to say that I wasn’t jarred by the phrase “a company that makes guns, clothes and books for children.”  Or that I expected, when I visited Crickett’s website, to see child-sized guns in bright blue and pink.   And watch out Joe Camel, because Crickett’s mascot is a jolly green frog sporting a rifle, boots, and a hunting cap.

Footbinding, smoking, drunk driving—these are all legend among law and norms scholars.  But with few exceptions, almost no one talks about trying to change gun culture through the sort of small, incremental changes that have made such a difference elsewhere.  Certainly it is daunting to even think about how to spark change.  And it’s also true that those whose ideas would make a difference would only receive posthumous gratification, because change might not actually be realized until my kindergartener has great-grandchildren.

But Boy, 5, Kills Sister, 2.

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Stanford Law Review, 64.1 (2012)

Stanford Law Review

Volume 64 • Issue 1 • January 2012

Articles
The Right Not to Keep or Bear Arms
Joseph Blocher
64 Stan. L. Rev. 1

The Ghost That Slayed the Mandate
Kevin C. Walsh
64 Stan. L. Rev. 55

State Sovereign Standing:
Often Overlooked, but Not Forgotten

Kenneth T. Cuccinelli, II, E. Duncan Getchell, Jr.
& Wesley G. Russell, Jr.
64 Stan. L. Rev. 89

Establishing Official Islam?
The Law and Strategy of Counter-Radicalization

Samuel J. Rascoff
64 Stan. L. Rev. 125

Lobbying, Rent-Seeking, and the Constitution
Richard L. Hasen
64 Stan. L. Rev. 191

Note
Bringing a Judicial Takings Claim
Josh Patashnik
64 Stan. L. Rev. 255

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Federalism and the SAGs’ Brief in McDonald

A few weeks ago, before I got caught up with finishing the semester and creating an exam, I wrote up a post exploring the role of State Attorneys General (SAGs) as agents of popular constitutionalism. In it, I asked whether that role is complicated by whatever obligations SAGs have to represent the interests of the states qua states, as opposed to the interests of “the people.” I used the SAGs’ McDonald v. City of Chicago amicus brief as an example, since it argued for incorporation of the Second Amendment and therefore seemingly against the interests of the states, while advocating a right that three-quarters of the American people support. Since I’m presently trying to avoid grading the aforementioned exam, now seems like a perfect time to revisit the first of those premises — namely, that the argument for incorporation in McDonald cannot be justified on the basis of state interests. The SAGs themselves argued that it could, though I have a hard time seeing how.

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Constructive “Keeping” and the Second Amendment

Eugene Volokh recently linked to an interesting case involving the Second Amendment rights of people who share a home with someone barred from possessing guns. The case’s result seems to turn on the fact that the prosecution simply failed to show that the defendant intentionally helped her boyfriend (a felon) possess her gun. But it also raises interesting questions about what counts as “keeping” and “bearing” for the purposes of the Second Amendment, particularly as those concepts relate to criminal liability for constructive possession.

Inasmuch as debates about the Second Amendment concern its text, they tend to focus on terms like “well regulated Militia,” “the people,” “the right,” and “Arms,” with the definitions of “keep” and “bear” essentially following along with one’s preferred reading of the Amendment’s purpose. If the Amendment is about protecting militias from disarmament, then “keep and bear Arms” is a unitary phrase with a military meaning. If it’s about an “individual” right to self-defense (or something else), then “keep” and “bear” mean simply “have” or “carry,” as the Court held in Heller.

Since Heller, much attention has been given to what types of “the people” have Second Amendment rights, and what types of “Arms” they can bear. But the meanings of “keep” and “bear”–even now that they’ve been redefined as “have” or “carry”–also raise complicated questions, which don’t seem to have attracted the same amount of attention. What amount of control must I exert over a gun in order to assert that I am “keeping” it for Second Amendment purposes? Presumably it doesn’t have to be on my person or even in my immediate control, or else keeping and bearing would mean the same thing, and I wouldn’t have a Second Amendment right to store my guns in an attic or a shed.

Is constitutional “keeping” (i.e, “having”) simply analogous to “possession” in criminal statutes? The concepts are certainly closely related, since a felon’s loss of the right to keep includes a loss of the right to possess. That suggests possession is at the very least a subset of keeping. And if that is so, is there some version of “constructive keeping” akin to constructive possession? Knowledge and intent to control a gun are usually treated as essential elements of constructive possession under state and federal criminal law. That makes sense, given the mental state requirements we generally have in criminal statutes. But does that necessarily mean that they are also essential elements of “keeping” for Second Amendment purposes?

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State Attorneys General and Popular Constitutionalism

David Pozen recently published his second article on judicial elections in the pages of the Columbia Law Review. In the first, “The Irony of Judicial Elections,” 108 Colum. L. Rev. 265 (2008), he explored the “new era” of judicial elections and discussed the tradeoff between those elections and the traditional role of the judiciary. In the new piece, “Judicial Elections as Popular Constitutionalism,” 110 Colum. L. Rev. 2047 (2010), he investigates the linkages between judicial elections and popular constitutionalism. In reading it, I couldn’t help but wonder if there’s another set of actors at the state level who are also highly relevant to the enterprise of popular constitutionalism: the state attorneys general.

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Another possible reason for the LAT story on NRA v. Chicago

pistolOver at the conspiracy, Eugene Volokh points out an odd fact — while the L.A. Times gives rather extensive coverage to the recent NRA v. Chicago, it gave no coverage at the time to Nordyke v. King, which was a California case. Eugene offers a few possible rationales for this difference:

To be sure, there are possible explanations: Today’s story was by the Times’ Supreme Court reporter, and this case is more likely than the Ninth Circuit case to go to the Supreme Court, for reasons I described here. The underlying controversy in the Seventh Circuit (a handgun ban) is more likely to interest people than the underlying controversy in the Ninth Circuit (a ban on gun possession on county property). And it’s made higher profile by the controversy about Judge Sotomayor’s participation in the Second Circuit’s no-incorporation decision.

At the same time, the broad legal issue — whether state and local governments are bound by the federal right to bear arms — is the same. The Ninth Circuit decision was the one that created the circuit split, and it did tee things up for the Court to consider the Second Circuit’s incorporation case (again, discussed here) — perhaps not perfectly, but still in a way that strikes me as newsworthy. The Ninth Circuit decision is the one that suggests some gun laws may be unconstitutional, which seems to me a pretty newsworthy matter. And the Ninth Circuit case was more local than the Seventh Circuit case.

(In comments, VC readers seem to mostly be of the opinion that the story shows a concerted editorial campaign to promote gun control through skewed news reporting.)

I’d suggest another possible reason — there’s a man-bites-dog aspect of the story which Eugene doesn’t mention; and no, it’s not the cheesy “wow, Republican judges can rule against gun rights” factor. Rather, it’s the fact that incorporation was widely expected to have an easier road than this. Read More