Today, Cato is releasing a new study, Tough Targets: When Criminals Face Armed Resistance from Citizens, by Clayton Cramer and David Burnett.  The paper makes use of a news report-gathering project to explore in more detail how Americans use guns in self-defense.

The paper makes many excellent points, but I’ll mention just three here.  First, the average person tends to imagine that these self-defense situations involve criminals getting shot.  Such cases do occur, but the overwhelming number of self-defense cases involve situations where the gun is never fired.  

The second point relates to the first.  The average person usually does not hear about defensive gun cases because news media organizations do not consider the incidents worthy of coverage.  If a burglar runs away from a break-in when he discovers that someone is at the home and is armed, it may only garner a terse mention in the paper, if it makes the newspaper at all.  With no shot fired, no injuries, and no suspect in custody, newspeople typically decline coverage.  The point here is not to criticize the news media’s handling of such incidents–rather it is just to remind readers that we tend to hear about criminals using guns to perpetrate crimes, but we do not hear about many self-defense cases.  In this milieu, it is understandable why many people would develop negative opinions about guns.

Third, when a gun owner does shoot a rapist or is able to hold a burglar at gunpoint until the police arrive on the scene, it is very likely that more than one crime has been prevented.  That’s because had the culprit not been stopped, he very likely would have targeted other people as well.

Gun control proponents stress the idea of harm reduction.  They say the enactment of  firearm regulations will reduce accidents and the criminal use of guns.  But if policymakers are truly interested in harm reduction, they must consider the number of crimes that are thwarted by gun owners.  Each year gun owners prevent a great deal of criminal mayhem–murders, rapes, batteries, and robberies.  Tough Targets gathers dozens and dozens of examples of ordinary people using guns to stop criminal attacks.  The defensive use of guns happens much more often than most people realize.

In addition to the paper itself, we have a new page on the Cato web site that will track, to the extent we can, defensive gun cases around the country.

For more information, listen to a podcast interview with co-author Clayton Cramer, or see related Cato scholarship.

New Cato Study: Tough Targets is a post from Cato @ Liberty - Cato Institute Blog

About a week ago, I wrote that people in western nations need the freedom to own guns just in case there are riots, chaos, and social disarray when welfare states collapse.

Much to my surprise and pleasure, this resulted in an invitation to appear on the National Rifle Association’s webcast to discuss the issue.

As I noted in the interview, I’m just a fiscal policy wonk, but the right to keep and bear arms should be a priority for anyone who believes in freedom and responsibility. And even though I only have a couple of guns, you can see that I’m raising my kids to have a proper appreciation for the Second Amendment.

I don’t think we’ll ever get to the point where we suffer societal breakdown, but I won’t be too surprised if it happens in some European countries. We’ve already seen the challenges faced by disarmed Brits during recent riots in the United Kingdom.

In the NRA interview, I pointed out that law enforcement is one of the few legitimate functions of government, so it is utterly despicable when politicians fail to fulfill that responsibility and also deprive households from having the ability to protect themselves.

Last but not least, watch this video if you want to be inspired about protecting the Second Amendment. Pay close attention around the five-minute mark.

Will You Be Able to Protect Your Family if Politicians Destabilize Society? is a post from Cato @ Liberty - Cato Institute Blog

Three years after the Supreme Court’s  landmark Heller ruling, which declared Washington, D.C.’s gun control laws unconstitutional, city officials keep fighting.  Under pressure from another lawsuit concerning a de facto ban, the city says that guns may now be purchased at the police station.  No details yet on whether residents will have to change into orange jump suits and wait in the holding cells while the police process the paperwork.

More here.

Guns in D.C. is a post from Cato @ Liberty - Cato Institute Blog

That’s the upshot of a recent decision by the Seventh Circuit Court of Appeals in the case of Ezell v. City of Chicago.  This was a challenge to the new regulations the city enacted in the wake of McDonald v. City of Chicago case, which applied the Second Amendment to the states. 

In an attempt to circumvent the Supreme Court’s clear holding, Chicago’s ordinance first mandates that would-be gun owners receive training at a firing range but then prohibits firing ranges from operating in the city.  The court, in a striking opinion by Judge Diane Sykes (put her on your Supreme Court shortlist for the next Republican administration), tells the city to go back to the drawing board.

I won’t go into the details, but the court applied something greater than intermediate (but “not quite strict”) scrutiny and found that Chicago has not presented anything approaching a compelling reason for its restriction.  Here’s an analysis of the opinion by Josh Blackman and some follow-up commentary from Cato associate policy analyst Dave Kopel.

Gratifyingly, Judge Sykes cites the Pandora’s Box article that Josh and I published early last year in the run-up to the McDonald argument (see footnote 11 on page 31).  It’s quite an honor to appear in the same footnote as Randy Barnett, Steven Calabresi, Brannon Denning, Glenn Harlan Reynolds (the Instapundit), and many other noted scholars — including Akhil Amar, who in the wake of our Obamacare debate and bet may not appreciate it as much.

Congratulations to the intrepid Alan Gura (who also litigated McDonald and Heller v. District of Columbia) and to all the citizens of Chicago!

Chicago Still Disrespects Second Amendment is a post from Cato @ Liberty - Cato Institute Blog

Because we care about individual liberty here, we think you should be able to engage in self-defense to protect that liberty (and your life, if it comes to that).  That includes the right to armed self-defense, of course, a right that becomes all the more important when encountering potential assailants who are stronger and/or more numerous than you.

Indeed you might recall from the legal fight to guarantee an individual right to keep and bear arms, that my colleague Tom Palmer once fended off some anti-gay marauders by just showing them that he had a gun.

And now we see that same story play itself out, except the would-be victim scared off a homophobic gang by merely maintaining the impression that he had a gun:

The situation could have gone either way: I could end up beaten or dead, or we could all go our separate ways.

All I could think to do was to get to my backpack and find my phone. As I fumbled for the phone, I heard one of them say, “Does he have a gun?”

So I kept my hand in my backpack, allowing them to wonder whether I was reaching for a gun. Then a couple of them started to run away, and the others soon followed. I got back on my bike and pedaled as fast as I could out of there.

When I got home, I began to reflect on what had happened, and more disturbingly what could have happened. I am in contact with the LGBT unit of the police department to file a report. But I’ve thought a lot about the turning point of the situation — the fact that one of them thought that I might have a gun. None of them said, “There’s a law against antigay hate crimes!” That wasn’t the deterrent. It was the possibility that I might have had a gun that saved my life Friday night.

It’s unfortunate that the people Mr. LaSalvia encountered are around — whatever their motivations — but would we be in a better world if people like him couldn’t imply the potential for armed self-defense?

Of course, in DC, Chicago, and many other places — which, after the recent Supreme Court rulings, must allow guns to be kept at home — it’s still illegal to carry a gun (open or concealed).  If the thugs Mr. LaSalvia ran into knew the local gun regulations (as many professional criminals do) and accurately gauged their target as a law-abiding citizen, they would have known that he was bluffing. 

Is that what gun-control proponents — many of whom I surmise strongly support gay and women’s rights — want?

(H/t: Lindsay Charles)

Even Imaginary Guns Save Lives is a post from Cato @ Liberty - Cato Institute Blog

It’s good news for residents of Washington, D.C., that Wal-Mart is planning on opening four stores in the District. Yet Washington Post columnist Robert McCartney reports today on one curious source of opposition:

“There’ll probably be a lot of shoplifting going on. They’ll need a lot of security,” Terriea Sutton, 35, said.

Brenda Speaks, a Ward 4 ANC commissioner, actually urged blocking construction of the planned store in her ward at Georgia and Missouri avenues NW partly because of that risk. Addressing a small, anti-Wal-Mart rally at City Hall on Monday, Speaks said young people would get criminal records when they couldn’t resist the temptation to steal.

Of course, that’s a rationale for banning all stores, not just Wal-Mart. Perhaps we should isolate these youths and consign them to abject poverty, so they’ll never be around anything worth stealing.  (A Wal-Mart spokesman commented that with regard to crime, “there is no more concern over these District locations than any other store locations.”)

Or we could recognize that Wal-Mart helps pull people out of poverty.  As Obama economic adviser Jason Furman reminds us:

Wal-Mart’s low prices help to increase real wages for the 120 million Americans employed in other sectors of the economy. And the company itself does not appear to pay lower wages or benefits than similar companies, or to cause substantially lower wages in the retail sector…

[T]o the degree the anti-Wal-Mart campaign slows or halts the spread of Wal-Mart to new areas, it will lead to higher prices that disproportionately harm lower-income families…

By acting in the interests of its shareholders, Wal-Mart has innovated and expanded competition, resulting in huge benefits for the American middle class and even proportionately larger benefits for moderate-income Americans.

Wal-Mart could do even more good for District residents if these four new stores sold guns.  That would quintuple the number of firearms retailers in the District, make self-defense affordable for low-income residents, and might just add some lobbying heft to the campaign to roll back D.C.’s ridiculous gun regulations.

Wal-Mart Could Help DC in More Ways than One is a post from Cato @ Liberty - Cato Institute Blog

In my post on Brian Aitken’s plight, I discussed New Jersey’s draconian gun laws and how a law-abiding citizen can become a victim of overbroad laws. New Jersey gun laws weren’t always so bad, but overcriminalization warped them into their current unconstitutional state.

This trend is a staple of modern legislative activity. Every time a politician says that we must pass a new law to “get tough on crime” and that their pet legislation ought to be passed “for the children,” it’s a sure indicator that the rule of law is about to take another body blow. Take, for instance, the crusade against sexting that threatens to make foolish teenagers into sex offenders. Or the proposed federal cyberbullying act, which aims to turn teens into federal felons, in spite of the fact that there is no federal juvenile justice system. New Jersey gun laws jumped the shark a long time ago and haven’t looked back.

The same is true with federal “honest services” fraud. In the words of one former lawmaker who fed the overcriminalization beast only to see it turn on him:

When I served in Congress, I vigorously opposed any expansion of federal agency authority. All too often, however, I exempted the Justice Department from my efforts because I wanted to give law enforcement the power it needed to keep our country safe from dangerous individuals. After enduring a years-long investigation into crimes my wife and I did not commit, and after watching the outrageous prosecution of Kevin Ring, I have serious doubts about whether I was wise to faithfully support the Justice Department. I strongly encourage the new Congress to examine the guidance and leeway the Department gives to federal prosecutors, and to refrain from passing any new vague criminal laws which seem to invite the worst prosecutorial abuse.

This is just the tip of the iceberg. For more on overcriminalization, take a look at Tim Lynch’s book, In the Name of Justice, or Harvey Silverglate’s Three Felonies a Day.

Overcriminalization Incentives is a post from Cato @ Liberty - Cato Institute Blog

While everyone is focused on the battle to see which party will control the House and/or Senate, there are several issues that voters will directly decide that deserve close attention. Here are nine initiatives that I’ll be watching next Tuesday.

1. Imposing an income tax in the state of Washington - This is the one I’ll be following very closely. I have a hard time thinking that voters would be dumb enough to impose an income tax, but the Pacific Northwest is a bit crazy on these issues. Oregon voters, for instance, approved higher tax rates earlier this year.

2. Stopping eminent domain abuse in Nevada - This initiative is very simple. It stops the state from seizing private property if the intent is to transfer it to a private party (thus shutting the door that was opened by the Supreme Court’s reprehensible Kelo decision).

3. Marijuana legalization in California - Proponents of a more sensible approach to victimless crimes will closely watch this initiative to see whether Golden State voters will say yes to pot legalization, subject to local regulation. (David Boaz and Juan Carlos Hidalgo already have commented on the implications of this vote)

4. Strengthen rights of gun owners in Kansas - If approved, this initiative would remove any ambiguity about whether individuals have the right to keep and bear arms.

5. Protecting health care freedom in Arizona - For all intents and purposes, this is a referendum on Obamacare. I’m hoping that it will pass overwhelmingly, thus giving a boost to the repeal campaign. There’s apparently a similar initiative in Oklahoma, but it hasn’t gotten as much attention.

6. Reducing benefits for bureaucrats in San Francisco - If one of the craziest, left-wing cities in America decides to require bureaucrats to make meaningful contributions to support their bloated pension and health benefits, that’s a sign that the gravy train may be in jeopardy for bureaucrats all across the nation.

7. Making it easier to increase government spending in California - The big spenders want to get rid of the two-thirds requirement in the state legislature to approve a budget. This would pave the way for even bigger government in a state that already is close to bankruptcy.

8. Reducing the sales tax in Massachusetts - The entire political establishment is fighting this proposal to roll back the sales tax from 6.25 percent to 3 percent, and pro-spending lobbies are pouring big money into a campaign against the initiative, so you know it must be a good idea.

9. Controlling benefits for bureaucrats in Louisiana - The initiative would require a two-thirds vote to approve any expansion of taxpayer-financed benefits for government employees.

Nine Key Ballot Initiatives to Watch is a post from Cato @ Liberty - Cato Institute Blog

In my last two posts I described how the New York Times misunderstands the Constitution and highlighted Reason’s great new article comparing conservative and libertarian theories of constitutional interpretation.  Well, now I have a chance to put those topics together, in response to yesterday’s big front-pager entitled “Court Under Roberts Is Most Conservative in Decades.”

Times Supreme Court reporter Adam Liptak — generally a sharp and honest broker — surveys some new political science literature and concludes, among other things, that since John Roberts became Chief Justice five years ago, the Court has been moving (modestly) to the right and is now “the most conservative one in living memory.”  Ed Whelan debunks both of these empirical claims at NRO’s Bench Memos blog — I disagree with Ed on some legal issues, not least unenumerated rights, but his fisking is worth a read – and I want to add two broad points.

First, the claim that “all” (or even most) judicial decisions can be assigned an ideological value is simply laughable.  Are all decisions favoring criminal defendants, unions, and people claiming discrimination or civil rights violations ”liberal” while those favoring prosecutors, employers, and the government “conservative” (as the scholars who maintain the database maintain)?  What about union members suing unions or large corporations suing each other?  What if the criminal defendant is a Fortune 500 CEO (like Conrad Black and Jeffrey Skilling in this past term’s ”honest services fraud” cases)? What about “reverse” racial discrimination claims like those at issue in Ricci v. DeStefano (the New Haven firefighters case)?  What about an oil company suing the EPA?  A financial services company suing the SEC (or vice-versa)?

And what about civil rights claims involving the Second Amendment, or the Fifth Amendment’s Takings Clause, or the right to earn an honest living? Are those not ”real” civil rights claims?  What if it’s poor people losing their houses to a big developer who promises a town it will create jobs and increase tax revenues?  What if it’s black hair braiders who can’t set up their shops without passing haridressing license exams requiring expertise only with white hair styles?  What if it’s women who want to buy and carry handguns to defend themselves on their walks home in a dangerous neighborhood?  Attempts to code such cases — like attempts to decide them based on “empathy” or support for the “little guy” – are bound to fail.

Second – and this ties together all the criticisms – the labeling of decisions (and courts!) as “conservative” and “liberal” ultimately boils down to results-based analysis that equates law with politics.  The liberal political position is to favor abortion rights, separation of church and state, gun control, wealth redistribution, economic regulation, and racial preferences, and to disfavor the death penalty.  It is then obvious that court rulings against those positions must be “conservative.”  Add in the fact that the researchers performing all these analyses –and reporters writing about them — are themselves quite “liberal” and it becomes all the more alarming when the Supreme Court moves in a “conservative” (= wrong) direction.

But you can’t simply code cases, tally up votes, and call it a day.  Is there no difference between a vote to uphold restrictions on partial-birth abortion and one to overturn Roe v. Wade?  Is voting one way because of stare decisis the same as voting that way because you think the underlying precedent is correct?  Is a vote to overturn the Slaughterhouse Cases and revive the Privileges or Immunities Clause the same as one to “incorporate” via the Due Process Clause?

And what about all those unanimous and “odd bedfellow” cases — the ones where Justices Scalia and Ginsburg are on one side and Justices Breyer and Alito on the other?  Are Scalia and Ginsburg simply more “liberal” when it comes to the Sixth Amendment’s Confrontation Clause?  Is a judge who votes to strike down economic regulations while also recognizing a broad right to habeas corpus just a “moderate” (or perhaps “confused”)?  Or is that judge simply a “libertarian” as a matter of public policy?

While we’re at it, look at the First Amendment.  How do you account for the leading pro-free speech justices the last 20 years being Kennedy, Thomas, and Souter?  Is a vote allowing a statute that criminalizes certain kinds of disfavored speech “liberal” or “conservative”?  (If you have a ready answer, contrast what you think about hate speech laws with what you think about anti-pornography laws.)

Put simply, law matters.  Judges are not super-legislators voting on their preferred policy positions; they have different jurisprudential theories, some of which lend themselves more to “liberal” political results, some less, but hopefully it’s the Constitution and statutes that ultimately lead to those results over the long term.

In short, Adam, c’mon, covering the judicial branch is not like covering the political branches.  You know the difference between the Court and Congress so don’t allow your readers to think there isn’t one.

Is the Supreme Court Conservative? is a post from Cato @ Liberty - Cato Institute Blog

That’s the message of my recent op-ed in the Daily Caller. New York City Mayor Michael Bloomberg’s initial reaction to the McDonald v. City of Chicago decision was to say that McDonald would have no impact on government’s ability to keep guns “out of the hands of criminals and terrorists.” This was a reference to legislation that Bloomberg supports that would allow the federal government to bar anyone the Attorney General thinks is a terrorist from purchasing a firearm. Not convicted of a crime in support of terrorism — that would make them a felon and already unable to purchase or own a firearm. No, being suspected of activity in support of or preparation for terrorism means you get the same treatment as if you were a convicted felon or had been involuntarily committed to a mental institution. So much for due process.

While D.C. v. Heller is the relevant decision (the AG’s double secret probation list is a federal, not state action), the premise of this legislation needs to be refuted. The proposition that guns and gun ownership are uniquely dangerous such that the right to keep and bear arms must be treated as a second-class provision of the Bill of Rights is willfully blind of the other instances where society accepts risk by safeguarding liberty in the face of foreseeable hazards. Justice Stephen Breyer embraced this misguided concept –– that the right to keep and bear arms is an enumerated, but non-fundamental, right that deserves a lesser degree of protection than the rest of the provisions of the Bill of Rights — in his McDonald dissent.

I counter that notion in this podcast:

Related thoughts from Ilya Somin here.

Liberty Requires Risk is a post from Cato @ Liberty - Cato Institute Blog

The Supreme Court ruled last week that state and city governments must respect the individual right to bear arms that is guaranteed by Second Amendment to the U.S. Constitution. This ruling does not necessarily invalidate all gun control laws, but it will likely mean the demise of outright bans and restrict significantly the ability of states and cities to impose other kinds of controls.

Advocates of gun control have decried the ruling because they believe guns cause crime and that gun control laws, by gun reducing gun availability, reduce crime. Regardless of the constitutional questions, however, both arguments for controls are flawed.

Many crimes do not require an armed perpetrator, and numerous weapons can substitute for guns (knives, baseball bats, fists, bombs, chains, shivs-the list is endless). Even if guns encourage or facilitate crime, guns potentially prevent crime by giving criminals reason to worry that victims might shoot back. In addition, gun controls cannot make guns disappear; they can only attempt to reduce availability via regulation, taxation, or prohibition. Those with illegitimate purposes, however, can circumvent such policies by borrowing or stealing a gun, or purchasing one on the black market.

Existing evidence indicates that the availability of guns plays a small role in causing crime and that gun control does little to reduce crime. Numerous countries have widespread gun ownership but low crime or violence rates; other countries have strict gun control laws but abundant guns and substantial violence. Police stations, army barracks, and rural households have high gun prevalence but little crime. Simply stating that guns automatically lead to high levels of crime is facile.

In addition, gun controls have costs, both for individuals and for society.

Many people derive a benefit from owning guns. Some enjoy collecting, others like hunting or target-shooting, and others want guns for self-defense. Controls raise the costs of gun ownership, thereby harming legitimate users. The costs of many of these controls are mild-a three-day waiting-period to buy a gun, for example, imposes small costs on those with legitimate reasons to own a gun. Yet such controls do little to deter illegitimate uses, so they also have minimal benefits.

The potentially significant cost of mild controls is that they evolve into strict controls. A century ago no country had substantial controls on gun ownership, yet most now have strict controls or virtual prohibition. If gun control becomes prohibition, the potential for adverse effects is large. Prohibition creates black markets, which means violent dispute resolution, corruption of judges and police, and disrespect for the law. Such outcomes are easily worse than any negatives of guns themselves.

The most significant negative of gun control is distracting attention from policies like drug prohibition that play a far larger role in generating crime. So long as policy generates a demand for crime, policy can do little to reduce crime.

Critics of the Supreme Court’s decision, therefore, have no cause for worry. If the ruling prevents many or most gun control laws, that will be good for everyone.

C/P at psychologytoday.com

Gun Control Advocates Should Applaud the Supreme Court is a post from Cato @ Liberty - Cato Institute Blog

I still haven’t finished reading the full 214-page opinion, but a few points to add to the statement I made yesterday:

• Justice Alito’s plurality opinion, joined by the Chief Justice and Justices Scalia and Kennedy, is a tight 45-page discussion of the history of the right to keep and bear arms and how it relates to the Court’s “incorporation” doctrine under the Fourteenth Amendment’s Due Process Clause.  No excess verbiage, no policy arguments, and, notably, no denial or disparagement of the Privileges or Immunities Clause — just denying to take up the issue in light of the long line of Substantive Due Process incorporation.
• Justice Thomas provides a magisterial 56-page defense of the Privileges or Immunities Clause, resurrecting a long-beleaguered constitutional provision.  While he doesn’t cite Keeping Pandora’s Box Sealed, Josh Blackman and I are proud to have tracked quite closely the arguments Thomas makes.  Note that without Thomas’s vote, there is no majority extending the right to keep and bear arms to the states.  That means P or I is relevant and enters the casebooks and Court precedent.
• The dissents by Justices Stevens and Breyer, respectively (the latter joined by Justices Ginsburg and Sotomayor), rest almost exclusively on pragmatic arguments.  They seem to think that the right to keep and bear arms is an inconvenient part of the Constitution in our modern (particularly urban) age.  This may or may not be correct as a matter of policy or social science — the evidence I’ve seen seems to point against them — but it’s irrelevant to the legal analysis.  If the dissenting justices wish to propose a constitutional amendment, I would welcome the ensuing debate.  As it stands, however, their arguments are disturbingly devoid of principled constitutional interpretation.  Note also that neither dissent goes into privileges or immunities analysis, though Justice Stevens argues that the Clause’s meaning is “not as clear” as the petitioners (our side) suggest.
• Relatedly, both Justice Stevens and Justice Breyer invoke but misunderstand the infamous Footnote Four of the 1937 Carolene Products case, which bifurcated our rights, privileging political rights over economic liberties and property rights and deferring to the legislative branches when at all possible.  One of the points Footnote Four made, however, was that enumerated rights have to have the strongest possible constitutional protection: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.”  The Second Amendment, then, if anything has to have at least as much protection as the right to privacy and other unenumerated rights.
• Finally, it is startling that not only does a fundamental constitutional right hang by a one-vote thread, but its application to the states is similarly tenuous.  There but for the grace of God goes any right — and any limitation on government power.  As I said yesterday, “Thank God that vote is Justice Thomas’s.”

For more McDonald reaction, see Josh Blackman’s remarkable series of blogposts.

A Few More Points on McDonald is a post from Cato @ Liberty - Cato Institute Blog

Today Politico Arena asks:

What are the political implications for Democrats and for the Kagan hearings of today’s Supreme Court gun decision?

My response:

The Supreme Court’s decision today that the Second Amendment applies against the states cannot be helpful to Democrats in the upcoming elections or to Elena Kagan in her confirmation hearings. Most Court-watchers expected the decision to come out as it did, yet the dissent by the Court’s four liberals speaks volumes. How could other rights in the Bill of Rights be good against the states, but not this right? Given the quality of their argument, the conclusion that the Court’s liberals are picking and choosing their rights on political grounds is inescapable.

And that issue will arise in the Kagan hearings, given some of her past statements about the Second Amendment. Will it block her confirmation? Probably not, given the numbers. But the discussion should illuminate the issue for the voters, and that’s good.

Democrats, Kagan, and the Second Amendment is a post from Cato @ Liberty - Cato Institute Blog

Today is a big victory for gun rights and a bigger one for liberty.  The Supreme Court has correctly decided that state actions violating the right to keep and bear arms are no more valid than those taken by the federal government.

It could not have been otherwise: the Fourteenth Amendment, coming on the heels of the Civil War, says clearly that never again would the Constitution tolerate state oppressions, and that all individuals possess certain fundamental rights.  It is equally clear that the right to keep and bear arms is one of those deeply rooted fundamental rights, not least because the Framers thought so highly of it as to enumerate it in the Second Amendment.

Still, Justice Alito’s plurality opinion leaves a lot to be desired, in that his ultimately correct conclusion rests on a dog’s breakfast of Substantive Due Process “incorporation” doctrine that arose only because the Privileges or Immunities Clause was strangled in its crib by an 1870s Supreme Court that refused to reconcile itself to the changes in constitutional structure wrought by the Fourteenth Amendment.  Justice Thomas’s response to this tortured attempt to fit a square fundamental right into a round procedural guarantee is the right one: “I cannot accept a theory of constitutional interpretation that rests on such tenuous footing.”

Only Justice Thomas grapples with the original meaning of the Fourteenth Amendment, surveying the rich history of the terms “privileges” and “immunities” to find that the right to defend oneself is part and parcel of the inalienable rights we all possess—and indeed it is “essential to the preservation of liberty.”  The Framers of the Fourteenth Amendment—the most important “Framers” in this context—plainly deemed this right “necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery.”  All arguments to the contrary lack legal, historical and even philosophical basis.

And so it is a very good thing, again for liberty, that the Court needs Thomas’s fifth vote to rule as it does: while the plurality declines to reconsider the old and discredited Privileges or Immunities precedent, Thomas’s clarion call for a libertarian originalism provides a step on which to build in future.

Finally, as we celebrate the belated recognition of a precious right—the one that allows us to protect all the others—we must be shocked and saddened to see four justices (including Sonia Sotomayor, who at her confirmation hearings suggested she would do otherwise) standing for the proposition that states can violate this right at will, checked by nothing more than the political process.  This is a nation of laws, not men—a republic, not a pure democracy—and thus it is disconcerting to see, as we do time and time again with this Court, that the only thing separating us from rule by a crude majoritarian impulse is one vote.  Thank God that, in this case, that vote was Justice Thomas’s.

The Court Restores a Fundamental Right is a post from Cato @ Liberty - Cato Institute Blog

Just as Tuesday’s primary elections were good news for libertarians, they were bad news for Elena Kagan.  Now that Arlen Specter (D-R-D-PA) will never again face an electorate, we will be able to see his true colors, whatever they are – this should be interesting! — on the Senate Judiciary Committee.  Blanche Lincoln (D-AR), assuming she wins her June 8 primary run-off (having to tack left to do so), will be a possible vote against Kagan so she can show skeptical Arkansans that she’s not an Obama-Reid-Pelosi rubber stamp.  And Rand Paul’s trouncing of establishment candidate Trey Grayson in the Republican primary should strike fear into the hearts of all senators running for re-election this fall (or even 2012) such that they refuse to accept pablum from a judicial nominee’s testimony.

The above races, combined even more notably with Scott Brown’s victory in Massachusetts in January, reinforce that voters are upset with Washington and they ain’t gonna take it any more.  Put simply, this fall’s election is shaping up to be a repeat of 1994 — except now we have protesters, the Tea Party movement, actively opposing every type of government expansion, bloat, and “stimulus” emanating from the federal government.  Elena Kagan will still get confirmed but she will face tough questions about the limits on government power; a 59-seat majority is nothing to sneeze at, but her confirmation margin is eroding every day.

Turning to one aspect of Kagan’s record that will get some attention in coming weeks, Ken Klukowski of the American Civil Rights Union argues that the nominee “confirms that President Obama’s gun-control agenda is to create a Supreme Court that will ‘reinterpret’ the Second Amendment until that amendment means nothing at all.”  Now, even though Ken and I have tangled before, I have no doubt that Obama is not the best president ever for the defense of the natural right to keep and bear arms for self-defense.  Still, Ken’s claim here that Kagan’s decision not to file a brief on behalf of the United States in McDonald v. City of Chicago indicates that she is anti-gun rights is specious.

Doug Kendall of the Constitutional Accountability Center — a progressive group that nevertheless has the intellectual integrity to support the application of the right to keep and bear arms via the Privileges or Immunities Clause — has a detailed refutation to these allegations:

As one of two lawyers who met with General Kagan on behalf of the petitioner, Otis McDonald, to request that she file a brief in support of McDonald, I can say first hand that this assertion is nonsense.  It is also worth pointing out, as I do below, that Klukowski’s post has important factual distortions in it.

As has been reported in the press, I joined McDonald’s lead counsel, Alan Gura, in a meeting with General Kagan and her staff to ask the Solicitor General to file a brief in support of McDonald and incorporation, against the City of Chicago.

From the outset, it was clear to me that McDonald was a difficult case for the Obama Administration, and that we therefore faced a decidedly uphill battle in seeking support from the United States.

On the incorporation question, there is also the fact that the Solicitor General’s Office has a tradition of not weighing in on incorporation cases at all, regardless of where it may stand on the merits of the case.  As former Solicitor General Erwin Griswold explained in a 1970 Supreme Court brief, the outcome of incorporation cases is rarely of direct interest to the federal government, while “fundamental considerations of federalism militate against executive intrusion into the area of State criminal law.”  Noting that incorporation cases often arise from questions surrounding state criminal procedure, Griswold indicated that the Solicitor General’s Office was particularly wary of getting involved in a potentially vast number of cases in which criminal defendants sought to expand the procedural protections of the federal Due Process Clause.

General Kagan gave us an entirely fair opportunity to state our case, and the decision by her office to refrain from filing a friend-of-the-court brief in this case tells us nothing meaningful about Kagan’s views on the Second Amendment.

In short, as Josh Blackman says, Kagan had plenty of reasons not to file a brief in McDonald and her decision not to says absolutely nothing about her views on the right to keep and bear arms. Again, I have no doubt that Elena Kagan, being a standard modern liberal, is no friend of the Second Amendment.  But the evidence Ken Klukowski purports to marshal is no evidence at all.

Elena Kagan, Super Tuesday, Tea Parties, Guns is a post from Cato @ Liberty - Cato Institute Blog

As I previously noted, one of the areas where enforcement of the right to keep and bear arms will impact states and localities is in the carrying of handguns, either open or concealed. Until then, handgun carry proponents will be forced to comply with state laws that mandate open carry where concealed handgun permits are not issued or are only issued to those who happen to have fame, money, or political connections.

Wisconsin is one of two states with no provision for concealed carry (Illinois is the other). Frank Hannon-Rock, a member of Wisconsin Carry, a pro-gun rights organization, was arrested for open carrying on his front porch. He filed suit and was recently awarded $10,000 by a federal district court.

This parallels (but does not equal) the experience of Danladi Moore, an open carry advocate in Virginia who has been harassed repeatedly by Norfolk police. Moore’s case is worse; he is black, and police behavior took a predictable turn:

Danladi Moore – whom the city paid $10,000 in July to avoid litigation after being stopped by police for suspected weapons violations – was charged with trespassing at the downtown entertainment complex Tuesday night…

Moore said a friend who was with him at Waterside also was carrying a gun and also had challenged police when asked to leave. He said his friend, who is white, was not charged.

Given the racist origins of gun control and the positive role that firearms played in the civil rights movement, you would think that this sort of thing would be frowned upon.

Open Carry Victory is a post from Cato @ Liberty - Cato Institute Blog

I recently appeared on the Patt Morrison Show in southern California opposite Paul Helmke of the Brady Campaign to Prevent Gun Violence in a segment that begs the question of what gun control laws will look like if the Supreme Court incorporates the Second Amendment with the McDonald v. Chicago case. The audio of the program is here, but the issue merits a more detailed discussion than I could get into on the radio.

The litigation over the boundaries of the Second Amendment in the District of Columbia previews the kinds of gun laws that will face court scrutiny.

First, certain restrictions on the purchase of firearms will likely be overturned. California maintains a “safe gun roster” of handguns that manufacturers have successfully submitted for safety testing. Following the Heller decision, the District adopted California’s roster. The roster is very specific, and handgun models are certified “safe” right down to the color. The District rejected applications to register two-tone guns, discontinued models, and guns not on the California roster. Three plaintiffs filed suit, alleging that this policy violated constitutional protections against irrational administrative regulations. The District relented, expanding its roster to include the “safe handguns” listings for Maryland and Massachusetts.

California courts are likely to reach similar conclusions. The Calguns Foundation has a plaintiff who wants to register a Glock handgun. The state has certified the right-handed but not the ambidextrous version, and the Calguns plaintiff was born without a right arm below the elbow. This compelling case, along with others parallel to the DC plaintiffs, will force California to open up its roster.

Second, jurisdictions will be forced to allow some form of handgun carry, either open or concealed. Outright bans on concealed carry cited in cases from the mid-1800’s come from a time when it was assumed that only brigands carried handguns concealed, and it was an unquestioned right of the people to carry arms openly wherever they went. States and localities will not be able to delete the right to bear arms from the right to keep and bear arms.

My colleague Tom Palmer is currently litigating this issue in the District of Columbia (complaint here), and states will have to confront the plain text of the Second Amendment and clear historical recognition of a right to be armed outside the home.

California allows open carry as long as the handgun is unloaded, but Los Angeles and other jurisdictions in the state refuse to issue concealed handgun permits. California will probably opt for concealed carry when push comes to shove. Public views have shifted to an “out of sight, out of mind” mentality, and concealed carry is the rule in most states. A California police officer recently put a comment up on Facebook that proposes intimidating open carriers with violence. “Haha, we had one guy last week try to do it! He got proned out and reminded where he was at and that turds will jack him for his gun in a heartbeat!” Turds indeed.

This brings us back to the Starbucks controversy that prompted the radio segment. Gun control proponents asked Starbucks to ban firearms from their coffee shops, and gun rights activists asked that they continue their current policy of following the law of the jurisdiction where each franchise is located.

The call-ins to the radio show expressed a willingness to boycott Starbucks if it keeps its “follow the law” policy, but that’s a rationale to boycott gas stations, grocery stores, and restaurants across the nation. If self-defense scares you that much, the best advice is to stay home. Or venture out and be a good victim.

Callers also expressed concerns about off-duty cops brandishing guns while intoxicated, and this is something we should take seriously. As I’ve said before, no magical powers accrue to a sworn officer. That’s a great case for barring everyone from carrying and drinking in public, law enforcement officers included. Federal law does this – the Law Enforcement Officers Safety Act allows current and retired law enforcement officers to carry concealed nationwide but requires that they not be under the influence while doing so. The same can’t be said for some state laws that make law enforcement officers a higher class of citizens than everyone else. Virginia allows retired law enforcement officers from any jurisdiction to imbibe while armed, but citizens with concealed handgun permits must transition from concealed carry to open carry when entering an establishment that serves alcohol for on-premises consumption. Better to treat permit holders and officers alike, and allow carry in restaurants but bar alcohol consumption while armed.

It’s unclear what the patchwork of gun laws across the nation will look like in ten years, but Eugene Volokh gives a framework for analysis in this article. Cato held an event the day before oral argument of the McDonald case, and our brief is available here. Ilya Shapiro and Josh Blackman discussed the application of the Privileges or Immunities Clause in this excellent article, and provided some post-argument commentary.

Gun Control After McDonald is a post from Cato @ Liberty - Cato Institute Blog

This morning the Court heard argument in McDonald v. Chicago, the case asking whether the right to keep and bear arms extends to protecting against actions by state and local governments.  Just as importantly, it asked whether the best way to extend that right would be through the Due Process Clause of Privileges or Immunities Clause of the Fourteenth Amendment (because the Second Amendment doesn’t apply directly to the states).

From the initial questioning through the end, it was quite clear that those living in Chicago — and, by extension, New York, San Francisco, and other places with extreme gun restrictions — will soon be able to rest easy, knowing that they will be able to have guns with which to protect themselves.  Unfortunately, the Court did not seem inclined to adopt the arguments propounded by petitioners’ counsel Alan Gura (and supported by Cato) that the Privileges or Immunities Clause was the way to go.   Chief Justice Roberts expressed reluctance at having to overturn the 1873 Slaughterhouse Cases and other justices joined in concerns over how activist judges would use the Clause if the Court revived it — even if that were the path that hewed more closely to the constitution’s true meaning.

This turn of events is unfortunate because reviving the Privileges or Immunities Clause, far from giving judges free reign to impose their policy views, would actually tie them closer to the text, structure, and history of the Constitution.  As it stands now — and as it seems will be the case after McDonald is decided — many of our most cherished rights are protected only to the extent that judges are willing to label them as sufficiently “fundamental” to warrant such protection.  That is an unprincipled jurisprudence and one that hurts the rule of law.

In short, it is a shame that the Supreme Court seems to be wasting a perfect opportunity to bring constitutional law closer to the Constitution.  It is an even greater shame that it is wasting this chance to use guns to protect liberty.

Gun Rights Secure, Liberty Less So is a post from Cato @ Liberty - Cato Institute Blog

In this NPR story Nina Totenberg gives both sides their say.  But twice she refers to the people advocating Second Amendment rights as “gun advocates” (and once as “gun rights advocates”). That’s not the language NPR uses in other such cases. In 415 NPR stories on abortion, I found only one reference to “abortion advocates,” in 2005. There are far more references, hundreds more, to “abortion rights,” “reproductive rights,” and “women’s rights.” And certainly abortion-rights advocates would insist that they are not “abortion advocates,” they are advocates for the right of women to choose whether or not to have an abortion. NPR grants them the respect of characterizing them the way they prefer.

Similarly, NPR has never used the phrase “pornography advocates,” though it has run a number of stories on the First Amendment and how it applies to pornography. The lawyers who fight restrictions on pornography are First Amendment advocates, not pornography advocates.

And the lawyers who seek to guarantee our rights under the Second Amendment to the U.S. Constitution should be called Second Amendment advocates, or advocates of the right to self-defense, or civil liberties advocates. Or even “gun rights advocates,” as they do advocate the right of individuals to choose whether or not to own a gun. But not “gun advocates.”

Civil Liberties Advocates, Not ‘Gun Advocates’ is a post from Cato @ Liberty - Cato Institute Blog

Tomorrow the Supreme Court will hear oral argument in McDonald v. Chicago — the Second Amendment case with implications far beyond gun rights.  The Court is quite likely to extend the right to keep and bear arms to the states and thereby invalidate the Chicago handgun ban at issue, but the way in which it does so could revolutionize constitutional law.

In response to the oppression of freed slaves and abolitionists in southern and border states after the Civil War, the Fourteenth Amendment’s drafters sought to protect individual rights from infringement by state and local governments.  The amendment’s Due Process Clause and Privileges or Immunities Clause provided overlapping but distinct protections for these rights.  The Court decided in the 1873 Slaughter-House Cases, however, that the Privileges or Immunities Clause only protected Americans’ rights as national, not state, citizens.  This reactionary holding eviscerated the clause, rendering it powerless to protect individual rights from state interference.

McDonald provides the Court an opportunity to overturn the Slaughter-House Cases and finally restore the Privileges or Immunities Clause to its proper role as a check against government intrusion on individual rights.  Doing so would secure Americans’ natural rights, such as the freedom of contract and the right to earn an honest living, without enabling judges to invent constitutional rights to health care or welfare payments.  For a more detailed discussion of McDonald’s potential implications, and how the Court should rule, see my recent op-ed here.

I will also be participating in several public events this week on McDonald, the Fourteenth Amendment, and firearm regulation.  Today at 4:00 p.m., I will be speaking at a Cato policy forum, which will be broadcast live on C-SPAN and which you may watch online here.  Tomorrow at 3:30 p.m., I will participate in a post-argument discussion of McDonald at the Georgetown University Law Center, which event is cosponsored by the Federalist Society and the Georgetown Journal of Law and Public Policy (where Josh Blackman and I recently published a lengthy article on the subject).  And on Wednesday at noon, I will be participating in a Cato Capitol Hill briefing on McDonald and the future of gun rights at the Rayburn House Office Building, room B-340 (more information here).

Using Guns to Protect Liberty is a post from Cato @ Liberty - Cato Institute Blog