Firearms Law Works-in-Progress Workshop

On Friday, the Center for Firearms Law hosted the first of what we hope will become an annual Firearms Law Works-in-Progress Workshop. The immediate goal was to give scholars—especially those new to the area—a chance to engage with another’s work. More broadly, and in keeping with the Center’s overall mission, our hope was to help build a scholarly community and to broaden and deepen firearms law as a scholarly discipline.

We were fortunate to have several groups of scholars in attendance: those recently entering the field of firearms law (broadly defined), those who have spent years (and in one case decades) writing on firearms law, and those with substantive expertise in other areas of law who are interested in the development of this new field of scholarship.

 

The papers represented a wide range of disciplines and methodologies, including: an empirical investigation of the links between state permitting laws and suicide risk; the sometimes-surprising role of police organizations in gun politics; just war theory and an ethic of Christian handgun ownership; the use of tort law to hold businesses liable for the misuse of guns on their property; and the historical role of the U.S. government in developing the national firearms industry.  Those papers (and others) were divided across four panels throughout the day, and the discussion was so engaging that it spilled over each and every time.

Scholarly programming is a central mission of the Center. Along with the historians’ roundtable at Oxford last month, and our first symposium next month—“The Second Amendment Outside the Home,” which will be published in Law & Contemporary Problems—the works-in-progress workshop represents the kind of engaged scholarly discussion we hope to achieve.




Book Mini-Symposium Part V: The Hard, Simple Truth of Gun Control

There is one, and only one, form of gun control that has been shown to reduce murders: anything that reduces the number of handguns in general circulation. Handguns matter most because they account for at least two-thirds of gun-related murders and about half of all murders. No other affluent nation has anything approaching the level of lethal violence as does the United States. That is the case, quite simply, because other nations rigorously restrict handgun possession. Most so-called commonsense measures that U.S. politicians, and the gun control movement itself, promote have not been shown to reduce lethal violence. Moreover, the regulatory model that both gun rights advocates and gun control advocates support – denying guns to the untrustworthy while allowing the trustworthy to possess them – is patently unworkable. It is, and will always be, impossible to effectively differentiate between the two groups. That is the hard, simple truth about gun control.

That is bad news indeed. In the 2008 case of District of Columbia v. Heller, the U.S. Supreme Court held, for the first time in the nation’s history, that the Second Amendment grants citizens an individual right to possess weapons unconnected to service in the militia, guaranteeing, at a minimum, the right to have a handgun in one’s home. As long as that holding remains the law of the land, gun regulations intended to reduce handgun possession will be unconstitutional.

Did the five justices who comprised the majority in Heller believe, deep down, that their decision did not unduly endanger public safety because commonsense controls were still permissible? If so, much blame must be laid at the feet of gun control organizations, which – in the perpetual hope of short-term victories – have been assuring everyone that all they want, and all that is necessary, are commonsense measures. So timid have gun control organizations become about advocating what is truly necessary that they do not even call themselves gun control organizations any longer, preferring instead to identify themselves as gun safety organizations.

The victories that strategy has produced are few and far between, and truly meaningful victories fewer still. Meanwhile, the strategy has led everyone to abandon – indeed, to not even think about – potentially effective regulation. Here is one measure of just how counterproductive the strategy has been: In 1960, the Gallup Poll reported that 60 percent of Americans favored banning the possession of handguns, except by police and other authorized persons? By the time the Supreme Court decided Heller, that number had fallen to 29 percent.

America can have effective gun control – not today, but someday. Public attitudes change. So does law. But to get there, gun control organizations need to take a longer view and tell the truth: there is medicine that can drastically reduce gun violence in America, but it is strong medicine. Doing that will shift the debate and make discrete but meaningful measures, such as banning high-capacity magazines, appear more moderate, increasing the likelihood of their adoption too.

[Ed. Note: This post is part of a mini-symposium from the contributors to the new book Guns in Law.]




Book Mini-Symposium Part IV: Good Moms with Guns

Read the headlines: Toddler shoots and kills mother. Police officer’s toddler son kills himself with his father’s service weapon. Toddler kills older sibling despite being trained in gun use.  In addition to killing others, small children suffer accidental self-inflicted gunshots, inadvertently are killed by siblings or playmates, and some are accidentally (or purposely) shot by adults. With facts like these, how could any “good” mom keep a gun in her home? Still others think a “good” mom should have a gun to protect herself and her children and failure to have one is parental irresponsibility.

To understand these seeming contradictions, I interviewed good moms with guns and toddlers. The good moms with guns that I interviewed expressed what I term a “relational right” to their guns. By “relational,” I mean that the guns have come to represent important, primarily male relationships in their lives. There are three archetypical “good moms with guns:” committed; compromising; and convinced. I provide an example of each.

Committed moms with guns

Committed moms had a history of gun ownership prior to marriage and family. Their belief in guns – for protection, entertainment, or hunting – predates their partner (if they have one) and the birth of their children. Tina represents this position speaking about her favorite gun.

I bought an off-the-shelf Ruger 10/22 and stripped it down. The only part of that that I actually used was the action. I put a custom barrel, custom stock, custom sites on it. . . I didn’t actually build the pieces, I bought them all from distributors and vendors.

LB:     Would you ever sell it?

Tina:   No, I would never sell it . . . I shot several competitions with it. I never actually won any awards with that particular one, but it has a lot more meaning to me than any of the rest of them. The rest of them are all pretty much stock, off the shelf firearms that I’ve not altered.

Tina’s shooting competitions represent a time in childhood when she felt particularly close to her father who cheered her on.

Compromising moms with guns

Compromising moms with guns had no history with guns but married a man who had guns or wanted guns. For reasons that they explain, they decided to compromise with their husbands about gun ownership. Harriet told us about her compromise to have guns:

My parents are both heart and lung specialists in hospitals.  And my mom works mainly in the emergency room. . . [so] she’s really only seen guns used for violence. My parents had NO interest in ever owning guns.  I was always raised with, “guns are bad.”

Despite her strong reluctance to own a gun, she fell in love with a gun owner. Harriet told us that when they were combining households she told her then-fiancée:

“So you know, when we get married, your guns aren’t going to be allowed to be in our house.”  And he was like, “no, no.  You are marrying the guns too and they aren’t going to not be in our house.”  And I said, uhh . . . I don’t know how I feel about that.”

Harriet married the man and the guns. They keep an unsecured, loaded weapon in their home.

Converted moms with guns:  Bears and Creepy Dudes

Converted moms had no history of guns prior to marriage or children, but now wouldn’t have it any other way. Again the desire to own a gun is told in terms of a relationship with a man. For Rachel, the man is the imagined “creepy dude.”

I have two guns. The first gun I got was a Ruger Redhawk Alaskan 44 caliber. . . . because I was planning on going on a hiking trip by myself . . . So I got it for two reasons. The first reason was for bears, and the second reason was for creepy dudes. . . Then after I had that for probably six months, I decided I wanted a smaller gun to have for personal protection, after I read more about concealed carry. .  .  just to have on my person, especially since I’m divorced and alone. So I got a nine millimeter Smith and Wesson Shield.

Although she herself has never been the victim of a violent crime, Rachel’s vigilance about creepy dudes has her carrying a weapon most of the time.

Conclusion

This is exploratory research to understand how people who own guns understand their relationship with the objects themselves and those around them. Meaningful conversation about legal restrictions on guns requires understanding and taking seriously these relationships.

[Ed. Note: This post is part of a mini-symposium from the contributors to the new book Guns in Law.]




Book Mini-Symposium Part III: Guns, Interpretation, and Executive-Branch Constitutionalism

This chapter focuses on a relatively unnoticed group of actors in the ongoing story of guns and the Constitution: state and local government officials. These ground-level actors include police officers and sheriffs, mayors, even attorneys general and governors; a focus on these officials, and the sites at which they encounter, respond to, and help shape the meaning of the Second Amendment—from amicus briefs to claims of interpretive autonomy to non-enforcement of state or federal gun laws—can help shed light on how constitutional meaning is made.

I’ll highlight in this short post just two of the examples discussed in the chapter. First, state and local government officials played a perhaps surprising role in both D.C. v. Heller and McDonald v. City of Chicago. In Heller, over 30 state attorneys general filed an amicus brief on the side of the challengers, arguing that the lower court had correctly concluded that the Second Amendment protects an individual right to gun ownership, and that D.C.’s handgun ban was therefore unconstitutional. Their brief also argued—though this question was not presented in Heller—that the Second Amendment applied not just against the federal government and in federal enclaves like D.C., but against the states as well. State and local officials had an even larger footprint as amicus filers in McDonald v. City of Chicago, which squarely presented the question of the Second Amendment’s incorporation. In that case thirty-eight state attorneys general joined a brief in support of the challengers, with a full-throated argument for incorporation. Although the states’ brief reiterated a commitment to basic precepts of federalism, it contended that “the discretion of state and local governments to explore legislative and regulatory initiatives does not include the power to experiment with the fundamental liberties of citizens safeguarded by the Bill of Rights.”

As Justice Stevens noted in dissent, there was something exceedingly strange about these filings: the positions they advocated seemed to run almost directly contrary to the interests of the state filers. As Justice Stevens wrote, “It is puzzling that so many state lawmakers have asked us to limit their option to regulate a dangerous item.” These states, of course, were free under existing law to impose no restrictions on gun ownership or purchase, beyond those imposed by existing law.  But, as the Stevens dissent suggested, under normal circumstances, states typically wish to limit the degree of judicial interference with their operations. In these cases, as in others since, a commitment to a particular vision of the Second Amendment superseded other, largely pragmatic considerations about guns and the community, and about federalism and local self-determination.

Second, local law enforcement officials, in particular sheriffs, have been active participants in debates around the meaning of the Second Amendment for many years. (It was two sheriffs, Richard Mack and Jay Printz, who brought the challenge to the background-check provision in the Brady Bill that resulted in the 1997 case Printz v. United States.) In recent years, a number of sheriffs, some associated with the so-called “constitutional sheriffs” movement in which Mack remains a central player, have asserted a sort of interpretive primacy over the meaning of the Constitution, including pledging not to enforce gun regulations they believe are inconsistent with the Second Amendment—sometimes in the face of clear judicial authority to the contrary.

The chapter ends by noting that over the past few decades, the evolution of the constitutional doctrine that governs the legal regulation of guns has been closely tied to, and in many ways driven by, popular understandings of the Constitution. And, although groups on the other side of gun regulation debates—in particular victims of gun violence and their family members—have articulated an opposing vision of the Second Amendment, they have not always presented their arguments in self-consciously constitutional terms. Perhaps recasting their claims in terms that are more explicitly constitutional—regarding both the limits of Heller and affirmative constitutional interests in a degree of government protection from violence—would constructively impact the next phase of debates about the meaning of the Constitution.

[Ed. Note: This post is part of a mini-symposium from the contributors to the new book Guns in Law.]




Book Mini-Symposium Part II: The Expressive Second Amendment

People keep and carry weapons for all sorts of reasons. What kind of reasons should the law respect? Governments regulate the keeping and carrying of weapons for all sorts of reasons. What kind of reasons should the law reject?

At first, this question seems trivial. In District of Columbia v. Heller, the Supreme Court said self-defense was the “central component” of the Second Amendment.

But the Second Amendment described in Heller and as discussed in American culture and politics doesn’t neatly converge on self-defense as the sole purpose of the Second Amendment. Incarcerated felons, for example, have no right to keep and bear arms, although they retain moral (and it is presumed) legal rights to self-defense. Short-barreled shotguns are essentially illegal because of their frequent use by Prohibition-era bootleggers, even though they could be an ideal weapon for someone with impaired or poor marksmanship.

Clearly, some element other than the costs and benefits of armed self-defense influences decisions about gun rights and policy. I think an additional element is the expressive component of the Second Amendment – the signaling and symbolic nature of gun use and regulation.

People own and carry guns for reasons other than personal protection. Blind citizens have obtained carry permits to demonstrate their independence. Youth have carried guns as symbols of maturity, respect and power. Others own or carry firearms to betoken membership in a select or self-conscious cultural group, or to assert their integration into a wider political community.

Correspondingly, governments may want to regulate guns for expressive reasons. They may want to express disapprobation, quite aside from the actual risk a person may present (prohibiting non-violent felons from gun possession for life would be an example of this). They may want send signals to avoid dangerous norm-cascades (prohibiting carrying weapons during a state of emergency, for example, to prevent armed citizens from descending on the one working gas station).

What does the Second Amendment have to say about these expressive issues? As an initial matter, it is apparent that there is nothing facially unconstitutional about government using law for expressive purposes. Constitutional rights are often regarded as “trumps,” in the words of Ronald Dworkin. Individuals use them to gainsay majoritarian choices about good policy.

But, as many scholars acknowledge, the rights-as-trumps model does not accurately reflect American constitutional practice. Rights are, at least in part, created to allow individuals and groups to produce public goods, broadly conceived, and to facilitate development and maintenance of institutions to supply these goods. Some of those goods may be safety, common defense, education, functioning markets, responsive politics, etc.

The Second Amendment shields individuals from rules that prevent development of these kinds of public goods, or from rules whose effects are so severe that society cannot organize to produce these kinds of goods. Put another way, the expressions the Second Amendment are meant to forbid, and the expressions the Second Amendment are meant to protect, are inextricably linked with the kinds of common goods and institutions the right is meant to generate and to accommodate.

[Ed. Note: This post is part of a mini-symposium from the contributors to the new book Guns in Law.]




Book Mini-Symposium Part I: Militias, Bearing Arms, and the Forgotten Language of Eighteenth-Century Rights

Although most modern Americans could easily dispense with the militia clause of the Second Amendment, eighteenth-century Americans generally believed that the preamble’s affirmation of the necessity of a well-regulated militia was far more important than asserting a right to keep and bear arms. Indeed, most of the first state constitutions did not even mention the right to bear arms.  Additional evidence of this view may be found in Federalist William Rawle’s comments on the meaning of the Second Amendment in A View of the Constitution of the United States. Rawle described the right to bear arms as a corollary of a well-regulated militia.

This conception is almost the exact opposite of the way most modern gun rights advocates view the matter. In modern gun rights ideology the right to bear arms makes possible a citizen militia, so the militia is an ancillary of the right to keep and bear arms.  Most members of the Founding era saw matters differently: because a well-regulated militia was necessary to the security of a free state,  they insisted, the right of the people to keep and bear arms had to be protected.

A closer look at the two first state declarations of rights is instructive. Virginia, the first state to draft a declaration of rights, did not expressly protect the right to bear arms. Instead, Virginia asserted: “that a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that Standing Armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.”  The militia was set against the danger of a standing army and the need for the military to be subordinate to civilian authority. This was the classic Whig conception of the militia.

In a separate provision Virginia also affirmed: “that all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”  The recasting of the Lockean trinity of life, liberty, property in this text suggests that the idea of individual self-defense was not seen as identical to either the right to bear arms or the preservation of a well-regulated militia.  Modern gun rights ideology, including the majority opinion in District of Columbia v. Heller, have blurred these distinct concepts together, effectively rewriting the original conception of Second Amendment in light of post-eighteenth century changes in American thinking about gun rights.

Turning to the second declaration of rights drafted after Independence, the Pennsylvania Declaration of Rights, the idea of the right to bear arms is clearly expressed: “that the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.” As was true for Virginia, Pennsylvania linked the militia with the traditional Whig fear about standing armies.

In Heller Justice Scalia adopted the modern gun rights view of this text, arguing that it unambiguously asserts an individual right to bear arms and that this right was synonymous with the individual right of self-defense.  One problem with this claim is that Pennsylvania also separated the Lockean trinity of life, liberty, and property, from the right to bear arms.

Another piece of textual evidence cutting against Scalia’s interpretation is the inclusion of a provision of a right not to bear arms. Protecting a right for conscientious objectors such as Quakers, Moravians, and Mennonites not to be forced to bear arms is hard to reconcile with Heller’s conceptualization of the right to bear arms as modern individual right. The idea of forcing someone to bear arms in individual self-defense is absurd.

Moreover, the history of the constitutional struggle over religious exemptions in Pennsylvania shows that “bearing arms” was not understood to be a synonym for “carry a gun” as Scalia argued in Heller. Pennsylvania allowed those religiously scrupulous about bearing arms to pay a fine instead of serving in the militia. For Quakers, the most militant pacifists in Pennsylvania, this compromise was unacceptable.  Any support for the militia, including  paying for substitutes, paying fines, or even paying for non-military supplies was a violation of Quaker faith.  Thus, a Quaker might bear a gun in many circumstances:  Quakers’ firms manufactured arms and Quakers even worked as gun smiths, but the one thing a Quaker might not do was serve in the militia. So contrary to Scalia, bearing a gun and bearing arms were not synonymous. Indeed, carrying a flag or a drum in a militia unit, either on a muster field  or in battle, would have violated the Quaker peace testimony, and been viewed by the community as an impermissible example of arms bearing. By contrast, using a gun to rid their own fields of critters and pests, an agricultural necessity, would have not posed any problem. Quakers were religious pacifists, not vegetarians, something Scalia’s account confuses.

Although the first declarations of rights drafted after Independence have often been quoted in the modern Second Amendment debate, they have seldom received the careful attention they deserve.  When read in context, these early legal texts do not support the simplistic claims so often made about the “original meaning” of the Second Amendment.  The time has come to free these texts from the ideological distortions wrought by the modern debate over gun rights and gun control and understand them as part of an eighteenth century debate over rights that shares little with our modern conflicts over the proper role of guns in a free society.

[Ed. Note: This post is part of a mini-symposium from the contributors to the new book Guns in Law.]




Book Mini-Symposium: Guns in Law

We’re happy to announce another mini-symposium on the blog. This time, we have pieces from the contributors to the book Guns in Law, a collection of articles published this year by the University of Massachusetts Press and edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey. The contributors will summarize the main themes of their essays in the book, and we’ll be sharing these posts this week and next. I’ll update this introduction with links once the posts are all published. [Updated with links]

The book explores the changing meaning of guns and the methods to address gun violence. As the editors note, “Like other rights, gun rights are embedded in a continuing struggle over the boundaries of permissible regulation and permissible uses of guns.” This struggle continues unabated, notwithstanding the Supreme Court’s announcement in 2008 that the Constitution protects the right of law-abiding citizens to keep and carry firearms for self-defense. With contributions from historians, legal scholars, and sociologists, the volume exposes the rift in contemporary American society over the appropriate role of guns in public (and private) life.

For our mini-symposium, we have pieces from many of the contributors, including:

  • Saul Cornell, The Changing Meaning of the Right to Keep and Bear Arms: 1688-1788[Link here]
  • Darrell Miller, The Expressive Second Amendment. [Link here]
  • Katherine Shaw, Guns, Interpretation, and Executive Branch Constitutionalism. [Link here]
  • Carl T. Bogus, The Hard, Simple Truth About Gun Control. [Link here]
  • Laura Beth Nielsen, Good Moms with Guns. [Link here]

The book is an excellent look at an increasingly relevant aspect of firearms law.




The Similar Debates Over Gun Rights and Abortion

Arguments about the right to keep and bear arms and the right to reproductive autonomy share a number of similarities. And, shortly after Heller, Judge J. Harvie Wilkinson underscored similarities in the how Court’s decisions in Roe and Heller removed controversial political issues from the realm of democratic choice, in what Judge Wilkinson thought improper and unjustified ways. The similarities in both rights debates have always stood out to me.

Although the symmetry is not perfect, it seems to me that there are some core arguments around both gun rights and abortion rights that mirror each other:

  • Opponents of the right view the Supreme Court’s description of the right to be textually unmoored from what the Constitution says (penumbras, etc., on the one hand; well-regulated Militia, on the other);
  • Even scholars sympathetic to the contested right criticize the Supreme Court’s rulings discovering the right;
  • Opponents claim the right was imposed on the country on the basis of Justices’ policy values and political preferences, not on the basis of proper legal (however defined) reasons;
  • Opponents strongly believe the exercise of the right has the potential to kill people;
  • Proponents strongly believe restricting the right has the potential to kill people, especially the rights-holder;
  • Proponents perceive the right as constantly under attack from lawmakers who don’t understand or appreciate the right because they are out of touch with, or hostile to, the people who exercise it;
  • Proponents view the ability to exercise the right, even if they never need to do so, as fundamental to their autonomy and necessary in a free society;
  • At the same time, both sides generally acknowledge that the state has legitimate interests in imposing some regulations on the activity at issue; and
  • Laws regulating the right are often *designed* to make exercise of the right more difficult because policymakers passing those laws often believe the harms of exercising the right outweigh the benefits.

Consider the following argument, made by a distinguished jurist, and see if the right at issue is immediately apparent. I’ve edited and paraphrased the argument so that it retains the same meaning as the original, but omits reference to the particular right at issue; this, to me, underscores the similarities in arguments about both rights.

As to this type of activity, there’s a strong argument that the Supreme Court should “allow breathing room for reasonable state regulation.” Just as the state has a legitimate interest in regulating other activities related to health and safety, so too it has such an interest here. And, as a matter of first principles, the debate over whether a state should prohibit the conduct at issue confronts lawmakers with a hard choice. But by holding that the Constitution forbids a total ban, the Supreme Court “took from state lawmakers the authority to make this choice.” Since it’s already done that, the Court certainly shouldn’t expand an approach that limits state regulatory decisionmaking to any greater degree. Indeed, it would be a “suffocating approach” for courts to strike down regulations “based on flimsy and unsupported factual assumptions,” like unquantified claims that regulations increase the cost of exercising the right; after all, scores of routine regulations increase the costs of certain activity, and “[n]o doubt there are instances in which these cost increases burden the exercise of constitutional rights.”

These are arguments that Justice Alito made about abortion regulations in a 1985 memo he wrote about upcoming abortion cases while working in the Solicitor General’s office. It seems to me that one could make those exact arguments about gun regulations, using the same reasoning Justice Alito applies to abortion. (See, e.g., Kwong v. Bloomberg, upholding New York’s firearm license fees and noting that “plaintiffs have put forth no evidence to support their position that the fee is prohibitively expensive”).

I suspect that many of the similarities reflect the deep cultural and moral disagreements that surround the rights to reproductive autonomy and to keep and bear arms. In some cases, members on both sides of both debates hold their views as deeply as articles of faith, even though the issues tend to energize the exact opposite sides of the political spectrum.

There are surely other similarities I haven’t recited here, and such similarities are among the reasons that many commentators, including Stacey Sobel, Nicholas Johnson, Melanie Kalmanson, and Jessica Lujan (and probably many others) have proposed using the Court’s reproductive-autonomy jurisprudence to flesh out Second Amendment doctrine. Judge Wilkinson’s noted displeasure with both Heller and Roe similarly sees a parallel in two sets of doctrine.

As Second Amendment doctrine moves forward, courts will likely continue looking for other rights’ frameworks to use in shaping the law. The Supreme Court might have a chance to do that in NYSRPA, the first Second Amendment case for which it has granted cert in almost a decade. But New York recently changed the challenged law, which may end up mooting the case. Perhaps another of Justice Alito’s 1985 observations might bear on the resolution of NYSRPA: a federal court should not be “so eager to overturn” certain types of regulations, or “so deeply suspicious of [a particular] legislature” it views as hostile to the right “that it insist[s] on reviewing and invalidating laws no longer on the books.”




Hofeld on International Responses to Mass Shootings

The Minnesota Journal of International Law recently published a comparative paper from Zachary Hofeld, Studying Abroad: Foreign Legislative Responses to Mass Shootings and Their Viability in the United States.

From the Introduction (footnotes omitted):

As difficult as they are to relive, the horrors of Newtown, Orlando, Las Vegas, and Parkland conceal a horrifying truth: mass shootings–incidents in which four or more individuals are shot and killed (not including the shooter)–are on the rise in the United States. They are occurring more frequentl and have become more deadly. Yet following each unspeakable tragedy, as cries for reform grow increasingly shrill, gun sales rise and legislatures stonewall. Meanwhile, in other developed countries, news-grabbing public mass shootings have powered reform– and with positive results. . . . .

America’s struggle with gun violence is no secret. Some scholars argue that Congress should adopt laws and policies that have successfully limited mass shootings elsewhere. Regrettably missing from this line of research, however, is rigorous evaluation of these measures’ viability–both empirically and legally–in the United States.

This Note seeks to fill that gap by examining developed countries’ legal response to widely-publicized mass shootings and evaluating the viability of those responses, practically and legally, in the United States. Part I supplies the background for this analysis, accomplishing three tasks. First, it provides a general overview of civilian gun laws globally, categorizing different approaches to gun regulation. Second, it tells the story of Australia’s, Germany’s, and Great Britain’s response to gun massacres, highlighting the impetus for reform, the legal response, and, to the extent possible, the effectiveness of the response. Third, returning home, the section provides an overview of U.S. gun law, including both Second Amendment jurisprudence and the federal-state, two-tiered gun regulation system. Part II considers whether the legislative solutions adopted in Australia, Great Britain, and Germany could work in the United States, analyzing, first, whether they address actual shortcomings in U.S. gun law and, second, whether they would comport with the Second Amendment. The Note concludes that despite calls to adopted legal approaches successful abroad, most of these solutions likely are nonviable in the United States because they either do not meaningfully address shortcomings in U.S. gun law or are unlikely to pass constitutional muster. Often, measures that would likely be effective are the ones that would likely fail Second Amendment scrutiny, while measures that would likely pass constitutional muster are the ones that likely would not effectively address the issue, thereby putting the drive to solve this problem on a collision course with the Second Amendment.




What’s in a name? The Evolution of the Term “Gun”

The 1828 edition of the American Dictionary of the English Language (which Justice Scalia cited in District of Columbia v. Heller when he defined “arms,” “keep,” “carry,” and “militia”) defined “gun” as “[a]n instrument consisting of a barrel or tube of iron or other metal fixed in a stock, from which balls, shot, or other deadly weapons are discharged by the explosion of gunpowder. The larger species of guns are called cannon; and the small species are called muskets, carbines, fowling pieces, &c. But one species of fire-arms, the pistol, is never called a gun.”

The Repository of Historical Gun Laws suggests that the italicized portion of this definition was widely accepted throughout the 19th century and into the early 20th century – laws from Connecticut (1835), San Francisco (1849), Chicago (1873), New Haven (CT) (1881), Massachusetts (1882), Rhode Island (1883),  Michigan (1883), New Jersey (1885), St. Louis (1887), Utah (1905), North Carolina (1913), and South Carolina (1923) all differentiate between guns and pistols.

Why does this matter? Statutes that only prohibited guns during this time period may have implicitly included an exception for pistols. Several such laws appear on the Repository, and while they may merely be examples of oversight or poor draftsmanship, there are signs that the omission was intentional. For instance, there is consistency in the use of “gun” in isolation: nearly all of the laws that mention guns but not pistols address hunting. Perhaps in such cases though it was unlawful to carry guns, it was lawful to carry pistols as they were not hunting weapons. Furthermore, several states that enacted laws only addressing guns enacted laws addressing both guns and pistols in the same year. In 1863, Delaware enacted a hunting law stating that “any gun . . . used with the consent or knowledge of the owner thereof, shall be forfeited and may be seized, condemned and sold as hereinafter provided.” That same year, Delaware enacted another law prohibiting specified persons from possessing “a gun, pistol, sword or any other warlike instrument.” Similarly, in 1880, Georgia enacted a hunting law stating that it was “unlawful for any person or persons to hunt with a gun by fire-light.” Also that same year, Georgia enacted another law that addressed “any person who shall intentionally point or aim a gun or pistol.” Similarly, New Jersey enacted a statute in 1901 that used the terms firearms and guns in separate clauses of the same sentence. Perhaps this is an example of colloquialism slipping through; however, this statute, like the others, also used the term “gun” in relation to hunting.

The New Jersey statute brings up another question. Where does the term “firearm” fit into all of this? The Repository suggests that at the very least, a pistol, though not always considered a gun, was regarded as a firearm. A statute from 1885 out of New York, for example, addressed the carrying of “any pistol or other firearms of any kind.” But was a gun a type of firearm? The answer to that question is less clear.

The syntax of several laws indicates that a gun was regarded as a type of firearm. When pistols, guns, and firearms are listed together on the Repository, the most common phrasing is “gun, pistol or other firearm.” You can see this with minimal variation in New Jersey (1885), Fresno (CA) (1896), Utah (1905), North Carolina (1913), and South Carolina (1923). Now, admittedly, that construction is ambiguous. It could be that the term “firearm” applies only to the term “pistol.” If that is true, then the term “gun” presumably refers to a separate category of weaponry. However, another interpretation is that “other firearms” applies to both “gun” and “pistol.” Laws out of Georgia (1847) and Arizona (1907) support this theory, as both read “gun or other firearm” (with slight grammatical differences).

The same dictionary that launched this discussion, however, supports the argument that the terms gun and firearm referred to distinct, though overlapping, types of weapons. The American Dictionary of the English Language from 1828 defines “firearm” as “[a]rms or weapons which expel their charge by the combustion of powder, as pistols, muskets, &c.” Though it expressly includes pistols, the definition also does not describe the same range of weaponry as the definition of “gun.” While the term gun encompasses canons as well as smaller species of guns such as muskets, the definition of “firearm” only includes examples weapons that could be carried. The definition of “firearm” does not say that the examples are comprehensive, however the examples do indicate a difference between the terms. As does the fact that neither entry refers to the other.

Regardless of whether guns were once considered firearms, at least one thing is clear: the definition of “gun” has evolved. Present-day dictionaries, such as the Oxford Dictionary, no longer exclude pistols from the definition of “gun.” Some do, however, limit the definition of “firearm” largely to weapons that are “small and portable, [such] as a pistol, rifle, shotgun, or musket.” Such definitions are consistent with the analysis of the 1828 definition of “firearm” above. Furthermore, if guns once were considered a subgroup within the category of firearms, then at some point it seems the roles reversed: The Oxford American Dictionary and Thesaurus (Second Edition, 2003), for instance, defines a firearm as “a gun, especially a pistol or rifle.”

While present-day dictionaries may offer some clarity, many questions remain. Why did the definition of “gun” initially exclude pistols? Why did it change, and when did it change? If this analysis is correct, how might it impact the way we analyze laws from the 18th and early 19th century?

[Ed. Note: This post about gun laws in the Center’s Repository of Historical Gun Laws is written by Center research assistant Catie Carberry. This post, like the Repository, is exemplary and not exhaustive.]