Repeater
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imported post
Seems almost like a commentary from Clayton E. Cramer, but instead it's a law review article from the Columbia Law Review.
Volokh comments on this here:
SNIP
None of this analysis applies to guns. Possessing guns is traditionally legal. Guns do serve the self-defense value that the Court has found to be embodied in the Second Amendment. And, Heller held, ordinary guns are at the core of “arms,” not on the margin.
Even carrying guns in public places is traditionally legal (though often with license requirements), and serves the constitutional value of armed self-defense. But I need not rely on that: The premise of the Court’s obscenity decisions is that obscenity lacks constitutional value without regard to the place in which it may be present, though it may not be suppressed via intrusions into the home. That premise does not extend to private gun ownership under Heller.
And naturally Guns as Smut’s unsound premise leads to unsound results. If guns were really like obscenity, the government would be free to ban the buying of guns and not just their public possession. Guns as Smut’s conclusion indeed suggests that it “remain unresolved” whether the government could “so restrict[] the commercial availability of guns that only guns in situ in the home, or those made by enterprising amateur gunsmiths, would be beyond regulation”; the Article’s interpretation of Heller “will not, and cannot, provide [an] answer[]” to that question.
Yet Heller expressly holds that the Second Amendment secures an individual right to possess handguns “for the core lawful purpose of self-defense.” Whatever such a right might mean, it must include the right to accomplish that core lawful purpose by acquiring the handgun. No sensible interpretation of Heller can leave the status of that right “unresolved.” And no sensible analogy between the Second and First Amendments can analogize typical privately owned arms to material that the Court has expressly held lacks First Amendment value.
Guns as Smut also argues that “the presence of a gun in public has the effect of chilling or distorting . . . public deliberation and interchange. . . . [E]veryone is deterred from free-flowing democratic deliberation if each person risks violence from a particularly sensitive fellow-citizen who might take offense.”
This is an intriguing speculation. One could also engage in the intriguing rival speculation that people’s ability to defend themselves may support public interchange, by assuring minority speakers that they can protect themselves against violent suppression. Private gun ownership was sometimes used this way during the civil rights era.
But fortunately we don’t need speculation; we have ample experience. In Vermont, people have long been free to carry concealed weapons without a license. In New Hampshire and the state of Washington, law-abiding adults have been legally entitled to concealed carry licenses for over 50 years. Today, law-abiding adults can get such licenses in all states except California, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, and Wisconsin. In many states, such as Arizona, Delaware, and Maine, law-abiding adults may carry guns openly, even without licenses.
Is public debate on balance especially inhibited in any of these categories of states? Is speech in Arizona, Vermont, and Washington less free than in Hawaii, Maryland, or New York, which try to limit the supposed “smut” of guns to the home? I know of no evidence for this, and Guns as Smut doesn’t point toany.
Seems almost like a commentary from Clayton E. Cramer, but instead it's a law review article from the Columbia Law Review.
Volokh comments on this here:
SNIP
None of this analysis applies to guns. Possessing guns is traditionally legal. Guns do serve the self-defense value that the Court has found to be embodied in the Second Amendment. And, Heller held, ordinary guns are at the core of “arms,” not on the margin.
Even carrying guns in public places is traditionally legal (though often with license requirements), and serves the constitutional value of armed self-defense. But I need not rely on that: The premise of the Court’s obscenity decisions is that obscenity lacks constitutional value without regard to the place in which it may be present, though it may not be suppressed via intrusions into the home. That premise does not extend to private gun ownership under Heller.
And naturally Guns as Smut’s unsound premise leads to unsound results. If guns were really like obscenity, the government would be free to ban the buying of guns and not just their public possession. Guns as Smut’s conclusion indeed suggests that it “remain
Yet Heller expressly holds that the Second Amendment secures an individual right to possess handguns “for the core lawful purpose of self-defense.” Whatever such a right might mean, it must include the right to accomplish that core lawful purpose by acquiring the handgun. No sensible interpretation of Heller can leave the status of that right “unresolved.” And no sensible analogy between the Second and First Amendments can analogize typical privately owned arms to material that the Court has expressly held lacks First Amendment value.
Guns as Smut also argues that “the presence of a gun in public has the effect of chilling or distorting . . . public deliberation and interchange. . . . [E]veryone is deterred from free-flowing democratic deliberation if each person risks violence from a particularly sensitive fellow-citizen who might take offense.”
This is an intriguing speculation. One could also engage in the intriguing rival speculation that people’s ability to defend themselves may support public interchange, by assuring minority speakers that they can protect themselves against violent suppression. Private gun ownership was sometimes used this way during the civil rights era.
But fortunately we don’t need speculation; we have ample experience. In Vermont, people have long been free to carry concealed weapons without a license. In New Hampshire and the state of Washington, law-abiding adults have been legally entitled to concealed carry licenses for over 50 years. Today, law-abiding adults can get such licenses in all states except California, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, and Wisconsin. In many states, such as Arizona, Delaware, and Maine, law-abiding adults may carry guns openly, even without licenses.
Is public debate on balance especially inhibited in any of these categories of states? Is speech in Arizona, Vermont, and Washington less free than in Hawaii, Maryland, or New York, which try to limit the supposed “smut” of guns to the home? I know of no evidence for this, and Guns as Smut doesn’t point toany.