Archive for September, 2011

There is No “Market” for Green Energy

Posted by on Sep 21 2011 | energy, Environment, PPC, Taxes

“Solyndra” is the latest word to become synonymous with green energy failure. The Solyndra scandal typifies the consequences of pushing for inefficient renewable energy sources – at whatever cost necessary. Our stance here at the Independence Institute has always been one of “energy agnosticism.” We don’t know what energy sources are the best. That’s why we have markets. Like any other good or service on the planet, energy ought to compete for consumer dollars. If an energy company satisfies consumers wants, they will do well and expand production. If they do not, they will go under. Most businesses that get started go under. It is really difficult to use resources efficiently and create a lasting business in a competitive climate. You know what isn’t difficult though? To lobby government for special privileges, donate to certain political campaigns, then sit back and collect subsidies and protection from competition. That is not a market. And unfortunately, that scenario typifies the green energy industry right now in America.

Solyndra, with its campaign contributions, $535 million in taxpayer guaranteed loans, blatant lies to its creditor (the government, we taxpayers), and finally it’s cowardly exit stage left, is not the exception to the green rule, they ARE the rule. Amy Oliver wants an apology. That’s the least they could do. I want my money back.

The solar industry says it wants competition. Well, it’s difficult to take statements like that seriously when their entire industry is propped up by taxpayer money and special protections. Until the green energy industry takes truly free competition seriously, we can’t take their statements about markets seriously. And don’t try to play the oil and gas subsidy trump card. We’ll take that claim seriously when you guys decide to take subsidies on the scale that oil and gas does. Which would mean a gigantic decline of federal green energy subsidies.

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Kopel on State Reciprocity and the Second Amendment

Posted by on Sep 21 2011 | cato institute, Constitutional Law, federalism, Fourteenth Amendment, guns, Kopelization, Originalism, PPC, Second Amendment, Tenth Amendment, U.S. Constitution

Concealed carry is a hot topic in Congress now with a bill coming out of the House called the National Right-to-Carry Reciprocity Act of 2011 (H.R. 822). This bill would extend conceal carry rights across state lines, allowing a legal gun owner who lives in Colorado to freely move about the country with his or her legal firearm and enter, say Illinois. The bill does not change the law in regards to obtaining a permit in your home state, it only prevents the other 49 states from infringing on your Second Amendment rights upon entering their state. As with all issues Second Amendment, our Dave Kopel weighed in on the issue. On Monday he was featured in the Cato Daily Podcast to discuss H.R. 822 and its implications on gun rights and interstate travel rights.

Perhaps the most interesting part of the podcast occurs when Dave recalls a question he received from Rep. Mike Quigley while giving testimony on 822 in the House subcommittee. Rep. Quigley points out that conservatives in Congress like to talk about states’ rights, but when it comes down to it, states’ rights are merely a convenience issue for them. For example, doesn’t H.R. 822 challenge states’ rights?

You’ll have to listen to the Cato podcast to get Dave’s answer. It’s truly fascinating and extremely insightful.

UPDATE: Here is a link to Dave Kopel on the Amy Oliver radio show this morning talking about this issue. Thanks to 1310 KFKA for the audio!

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Rollie Heath Talks About His Massive Tax Hike

Posted by on Sep 19 2011 | education, Idiot Box (TV Show), PPC, Taxes

My representative up in Boulder and proponent of the latest big tax hike in our state, Rollie Heath, was kind enough to come on my TV show and talk about it. If you haven’t had a chance to watch the show, you can check it out here:

Additionally, last week our complaint against Rollie’s tax hike went public with this Denver Post article. Why would we file a complaint against this $3 billion tax hike “for the children?” Well, watch this video from blogger Kelly Maher and you’ll see why:

Evidently, there are lies, damn lies, and petition gatherers.

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New law school textbook on the Second Amendment and firearms regulation

Posted by on Sep 18 2011 | Casebooks, guns

Very early next year–in time for 2d semester classes in the 2011-12 academic year–Aspen Publishers will publish the first law school textbook on the the Second Amendment. The title is Firearms Law and the Second Amendment: Regulation, Rights, and Policy. The co-authors are Nicholas Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me.

Below the fold is the full Table of Contents and Preface for the book. (Pasting the Word document into the blog format significantly altered many of the indents, line spacing, and outline numbering for chapter subdivisions, so the TOC below does not look exactly like the TOC of the book itself.) Because the textbook is currently in the production process, review copies are not yet available. Indeed, the Aspen website’s promotional page for the book is still several weeks away. However, if you might use the textbook next semester, and would like to see some chapters, just contact any of the co-authors, and we can mail them to you.

The 11 chapters of the printed textbook proceed chronologically, from ancient Rome, Greece, and China, all the way to the post-Heller cases. Four additional, on-line only chapters cover some special topics. Those electronic chapters will be available to all students and professors using the textbook.

Besides being sold as a conventional hardback, Firearms Law will also be available in individual electronic chapters. So if you are teaching a constitutional law course and would like to include a 2 or 3 week unit on the Second Amendment, your students could buy chapter 9 (Heller and McDonald) plus chapter 11 (post-Heller cases in the lower courts). Or if you’re teaching an advanced criminal law class, you might want to have your students buy chapter 8, which covers the modern criminal law of gun control, particularly under the federal Gun Control Act.

Summary of Contents





Editorial Note





Chapter 1. A Brief Introduction to Firearms and Their Regulation

Chapter 2. Antecedents of the Second Amendment

Chapter 3. The Colonies and the Revolution

Chapter 4. The New Constitution

Chapter 5. The Right to Arms, Militias, and Slavery in the Early Republic and Antebellum Periods

Chapter 6. Reconstruction and Beyond






Chapter 7. A New and Dangerous Century

Chapter 8. Between Miller and Heller: The Second Amendment in the Modern Era

Chapter 9. The Supreme Court Affirms an Individual Right to Arms

Chapter 10.  The Right to Arms after Heller

Chapter 11.  Firearms Policy and Status: Race, Gender, Age, Disability, and Sexual Orientation


Table of Cases

Table of Statutes and Constitutions

Table of Authorities






Chapter 12.  Social Science on Guns and Self-Defense

Chapter 13.  International Law

Chapter 14.  Comparative Law

Chapter 15.  Detailed Explanation of Firearms and Ammunition






Editorial Note





Chapter 1

A Brief Introduction to Firearms and Their Regulation


A.  The Parts of a Firearm and Ammunition

B.  Firearm Features

  1. Firing Mechanism
  2. Ammunition Feeding
  3. Safety Devices
  4. Firearm User Safety

C.  The Major Types of Firearms

  1. Handguns
    1. Semi-Automatic Pistols
    2. Revolvers
    3. Legitimate Uses of Handguns
    4. Criminal Uses of Handguns
  2. Rifles
    1. Bolt-Action
    2. Semi-Automatic
    3. Lever-Action
    4. Single-Shot
    5. Characteristics of Rifles
    6. Legitimate uses of rifles
    7. Crime with rifles
  3. Shotguns
    1. Shotgun Shells
    2. Types of Shotguns
    3. Legitimate Uses of Shotguns
    4. Crime with shotguns

D. Modern Gun Control Laws

  1. Purchasing a Gun from a Commercial Dealer
  2. Purchasing a Gun from Other Persons
  3. Purchases in Various Locations
  4. Gun Registration
  5. Keeping the Gun at Home
  6. Target Shooting
  7. Hunting with a Gun
  8. Carrying a Gun for Protection
    1.  At Home, or in Your Place of Business
    2. In your automobile
    3. In Public Places
  9. Local laws

10. Using a Gun for Self-defense

E.  Gun Control Controversies Today

Appendix: The Right to Arms in State Constitutions



Chapter 2

Antecedents of the Second Amendment


A.  The Early Far East

  1. Confucianism

The Analects of Confucius


  1. Taoism        

Tao Te Ching

Wen Tzu

The Master of the Hidden Storehouse


B.  Ancient Greece and Rome

1. Greece

  1. Greek law
  2. Plato vs. Aristotle
    1. Plato
    2. Aristotle

Aristotle’s Constitution of Athens, ch XV

  1. Rome

Corpus Juris

C.  Judeo-Christian Thought

  1. Jewish Thought
  2. Early Christian Thought
    1. The Sermon on the Mount
    2. The Final Instructions to the Apostles
    3. The Arrest of Jesus
    4. Paul’s Letter to the Romans
    5. Other Early Christian Writings
  3. Medieval Christian Thought
    1. John of Salisbury’s Policraticus
    2. Thomas Aquinas

D. Second-millennium Europe

  1. Italian Influence

Cesare Beccaria, An Essay on Crimes and Punishments, ch. 40

  1. England
    1. Magna Charta
    2. English statutes

     Assize of Arms

     Statute of Northampton

     Gun and crossbow control

  1. Castle Doctrine Cases
  2. Hue and Cry, the Militia, the Glorious Revolution, and the Declaration of Right
  3. Blackstone
  4. John Locke, Jean de Barbyrac, and John Adams

John Locke, Second Treatise of Government

  1. Novangelus



Chapter 3

The Colonies and the Revolution


A.  Firearm Control in the Colonies

  1. Early Arms Mandates
    1. Colonial Statutes Mandating Arms Possession




New York    


New Jersey

New Hampshire

North Carolina



  1. Colonial Statutes Mandating Arms Carrying




Rhode Island


South Carolina


  1. Statutory requirements for Arming Free Servants and Children
  2. Early Firearm Regulation and Prohibition
    1. Safety Regulations
    2. Limits on Gun Sales to Indians
    3. Gun Restrictions on Blacks
    4. Sporadic Disarmament of Dissidents

B.  Firearms, Self-Defense and Militias in Pre-Revolutionary America

  1. The Boston Massacre Trial
  2. A Colonial View of the English Right to Arms

E.A. [Samuel Adams], Boston Gazette, Feb. 27, 1769

  1. C. Religion, Arms, and Resistance

Jonathan Mayhew, A Discourse Concerning Unlimited Submission and Non-Resistance to the Higher Powers: With Some Reflections on the Resistance Made to King Charles I and on the Anniversary of his Death

Simeon Howard, A Sermon Preached to the Ancient and Honorable Artillery Company in Boston

C.  The British Crackdown

  1. The Coercive (Intolerable) Acts and the Powder Alarms
  2. Disarmament Orders from London
  3. The Import Ban
  4. Calls for Defiance: Patrick Henry and the South

Patrick Henry, The War Inevitable, Speech at the Second Revolutionary Convention of Virginia

  1. Defiance in Practice and the Independent Militias

D. Arms and the American Revolution

  1. Gun Confiscation at Lexington & Concord
  2. Gun Confiscation in Boston
  3. Declaration of Causes of Taking Up Arms

The Declaration by the Representatives of the United Colonies of North America, July 6, 1775

  1. Falmouth Destroyed
  2. The Declaration of Independence

The Declaration of Independence

  1. Thomas Paine on Self-Defense, Resistance, and Militias
  2. Gun Confiscation and Smuggling Reprised
  3. The Militia, the Continental Army, and American Marksmanship

E.  The Articles of Confederation

F.  The Right to Arms, Standing Armies, and Militias in the Early State Constitutions and Statutes

South Carolina


New Jersey




North Carolina


New York



New Hampshire


Rhode Island



Chapter 4

The New Constitution


A.  Standing Armies, Militias, and Individual Rights—The Constitutional Convention of 1787

B.  Ratification of the Constitution




New Hampshire


Virginia Ratification Message

Resolution of Virginia’s Proposed Amendments

New York

North Carolina

Resolution of North Carolina’s Proposed Amendments

Rhode Island

C.  Commentary During the Ratification Period

  1. The Federalist Papers

The Federalist No. 29 (Alexander Hamilton)

The Federalist No. 46 (James Madison)

  1. Tench Coxe
  2. Other Federalists

D. The Second Amendment

  1. The Second Amendment’s Path Through Congress
  2. Commentary on the Second Amendment

E.  Post-Ratification

  1. The Militia Acts

First Militia Act of 1792

Second Militia Act of 1792

  1. St. George Tucker
    1. Tucker’s Blackstone
    2. Tucker’s Early Lecture Notes

F.  Federal and State Military Forces of Today

  1. The United States Armed Forces
  2. The National Guard
  3. State Defense Forces
  4. The Unorganized Militia



Chapter 5

The Right to Arms, Militias, and Slavery in the Early Republic and Antebellum Periods


A.  Militias as a Military and Political Force in the Post-Revolutionary Period

  1. The Crisis of 1798-99
    1. The Federalist Program
  2. The Kentucky and Virginia Resolutions
  3. Fries’s Rebellion

Robert H. Churchill, Popular Nullification, Fries’s Rebellion, and the Waning of Radical Republicanism, 1798-1801

  1. The War of 1812

B.  Antebellum Case Law on the Right to Arms Under State and Federal Constitutions

  1. A right to carry weapons openly for self-defense

Nunn v. State

  1. The “civilized warfare” test: militia weapons only?

Aymette v. State

  1. A collective “right of sovereignty” subject to legislative discretion?
  2. The use of antebellum state court decisions to interpret the Second Amendment

C.  Weapons Control and Southern Culture

D. The Right to Arms and Slavery

State v. Newsom

Robert J. Cottrol & Raymond T. Diamond, “Never Intended to Be Applied to the White Population”: Firearms Regulation and Racial Disparity—The Redeemed South’s Legacy to a National Jurisprudence?

E.  Antebellum Legal Commentary on the Right to Arms

  1. William Rawle
  2. Joseph Story

The Second Amendment in Story’s Familiar Exposition

Houston v. Moore 



Chapter 6

Reconstruction and Beyond


A.  The Initial Southern Response to Black Freedom

  1. The Black Codes



Landry Parish, Louisiana


  1. The Ku Klux Klan and Other Extra-legal Suppression of Freedmen

B.  The Congressional Response: The Fourteenth Amendment, the Freedmen’s Bureau Acts, and the Civil Rights Act

Thirteenth Amendment

Civil Rights Act of 1866

Second Freedmen’s Bureau Act

Fourteenth Amendment

United States v. Cruikshank

C.  Labor Agitation and the Repressive Response

Presser v. Illinois

D. Nineteenth Century Commentary

  1. Chief Justice Thomas M. Cooley

Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union

Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America

  1. Other Commentary

Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes

Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes (2d ed.)

E.  Late Nineteenth Century State Laws and Cases

Andrews v. State

State v. Wilburn

The Postbellum Experience in Arkansas

State v. Duke

City of Salina v. Blaksley 

F.  State Constitutions at the Turn of the Century

G. The Self-Defense Cases






Chapter 7

A New and Dangerous Century


A.  Immigration, Labor Unrest, and Alcohol Prohibition

Patsone v. Pennsylvania

People v. Nakamura

B.  The Federal Government Begins To Act

National Firearms Act of 1934

Federal Firearms Act of 1938

Sonzinsky v. United States

United States v. Miller

C.  National Firearms Act Regulation Today

Machine guns

Short barreled rifles

Short barreled shotguns.


Destructive devices

“Any other weapons”

The NFA transfer procedure     

D. Miller’s Aftermath: The Shrinking Second Amendment

Cases v. United States

United States v. Tot

E.  Armed Citizens and the Second World War

  1. The United States
  2. The United Kingdom



Chapter 8: Between Miller and Heller: The Second Amendment in the Modern Era


A.  The Second Amendment in the Lower Federal Courts

United State v. McCutcheon

Stevens v. United States

Cody v. United States

United States v. Brimley

United States v. Warin

United States v. Hale

B.  Six Decades of Cryptic Supreme Court References to the Second Amendment

  1. The Right to Arms as a Liberty Interest?

Poe v. Ullman

  1. Defining Terms Used in the Second Amendment

United States v. Verdugo-Urquidez

Muscarello v. United States

  1. Gun Control and the Limits of Federal Power.

United States v. Lopez

Printz v United States

Exercise: The Firearms Freedom Acts

  1. Felons and the Right to Arms

Lewis v. United States

C.  The Social and Political History of the Right to Arms Between Miller and Heller

The calm before the storm

Racial tensions

Comprehensive National Gun Control

The Rise of the Modern Gun Control Movement and the Revolt at the NRA

Handgun prohibition

The NRA Counter-offensive, and the Growing Sophistication of the Gun Control Lobby

George H.W. Bush

The Clinton Era

The Re-emergence of the Second Amendment

Columbine and the 2000 Election

The Great American Gun War Winds Down

D. Federal Regulation of Firearms in the Modern Era

  1. The Challenge of Defining Specially Regulated Firearms

United States v. Thompson/Center Arms Company

2. Regulation of Retail Sales of Conventional Firearms

a. Regulation of buyers

National Rifle Association of America Inc. v. Reno

United States v. Moore

b. Regulation of sellers

United States v. Biswell

3. Private Sales, Private Manufacturers: The Secondary Market and Gun Shows

Scope v. Pataki

Chow v. Maryland

4. “Sporting Use” as a Marker of “Legitimate” Firearms

Gilbert v. Higgins

5 . Policing of Illegal Guns

Terry v. Ohio

Staples v. United States

6 . Litigation Against the Gun Industry and the Legislative Response

City of New York v. Beretta U.S.A. Corp

7. Regulation of Firearms Designated “Assault Weapons”

Springfield Armory, Inc. v. City Of Columbus

8. Regulation of Interstate Transportation of Firearms

Revell v. Port Authority of New York & New Jersey

Torraco v. Port Authority of New York & New Jersey

E.  On the Threshold of an Individual Right to Arms: Full Engagement of the Second Amendment by the Fifth and Ninth Circuits

United States v. Emerson

Silveira v. Lockyer



Chapter 9

The Supreme Court Affirms an Individual Right to Arms


A.  The Supreme Court Affirms an Individual Right to Keep and Bear Arms Against Federal Infringement

District of Columbia v. Heller

B.  The Supreme Court Incorporates the Right to Keep and Bear Arms Against the States

McDonald v. City of Chicago

Comment: Modes of Constitutional Interpretation



Tradition and History

Emerging Awareness

Stare decisis



Popular Constitutionalism

Good Policy Results

Judicial Activism and Judicial Restraint

Exercise: Harm in the Speech Context

Exercise: Constitutional Drafting



Chapter 10

Firearms Policy and Status:

Race, Gender, Age, Disability, and Sexual Orientation


A.  Firearms Policy and the Black Community

Brief for NAACP Legal Defense & Educational Fund, Inc. as Amicus Curiae Supporting Petitioner, District of Columbia v. Heller

Brief for Congress of Racial Equality as Amicus Curiae Supporting Respondent, District of Columbia v. Heller

B.  Gender

Brief for National Network to End Domestic Violence, et al. as Amici Curiae Supporting Petitioner, District of Columbia v. Heller

Brief for 126 Women State Legislators and Academics as Amici Curiae Supporting Respondent, District of Columbia v. Heller

C.  Age and Physical Disability

Brief for American Academy of Pediatrics et al. as Amici Curiae in Support of the Petition for Writ of Certiorari, District of Columbia v. Heller,

Brief for Southeastern Legal Foundation, Inc., et al. as Amici Curiae Supporting Respondent, District of Columbia v. Heller

D. Sexual Orientation

Brief for Pink Pistols, et al. as Amici Curiae Supporting Respondent, District of Columbia v. Heller,

Exercise: Subjectivity in Forming Policy Views

Exercise: Empirical Assessments, Personal Risk Assessments, and Public Policy



Chapter 11

Applying the Affirmed Right to Arms 


A.  The Aftermath of Heller in the District of Columbia: Intermediate Scrutiny

Heller v. District of Columbia (Heller II)

B.  The Aftermath if McDonald in the City Of Chicago: Historical Inquiry, Then Nearly Strict Scrutiny Toward The Core

Ezell v. City of Chicago

Exercise: Pressing the Edges of the Abortion Analogy

C.  An Alternative Methodology: Substantial Burden

Nordyke  v. King

D. The Presumptive Legitimacy of Disarming the Untrustworthy: Analogizing From Heller

United States v. Skoien

E.  The Second Amendment and the Gun Control Act of 1968

United States v. Marzzarella

Exercise: Soldiers and Second Amendment Scrutiny

F.  Guns In Common Use and the State Courts

People v. James

G. Child Access Prevention Laws

Commonwealth  v. Runyan

H.      The Right to Bear Arms and Carrying Handguns for Self-Defense

Peruta  v. County of San Diego

Exercise: In-state Concealed Carry

I.   Regulating the “Terror Gap”

Exercise: The Right to Bear Arms vs. Terrorism Concerns

J. Gun Regulation, Local Autonomy, and Urban Violence

Exercise: Adapting the Right to Bear Arms to Local Circumstances

K. Tyranny Control as a Justification for the Modern Right to Bear Arms

Silveira v. Lockyer

Exercise: Litigation Strategies and Ethics on Controversial Topics



Table of Cases

Table of Statutes and Constitutions

Table of Authorities








Chapter 12

Social Science on Guns and Self-Defense



Chapter 13

International Law


A.  Modern human rights treaties and other documents

  1. United Nations General Assembly Resolution on the Definition of Aggression
  2. African Charter on Human and People’s Rights
  3. European Convention on Human Rights

B.  International Gun Control Treaties and Documents

  1. Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects
  2. UN Human Rights Council on the international right of gun control
  3. Nairobi Protocol
  4. Organization of American States

CIFTA. Convención Interamericana Contra La Fabricación Y El Tráfico Ilícitos De Armas De Fuego, Municiones, Explosivos Y Otros Materiales Relacionados.

C.  The Founders of International Law

  1. Francisco de Victoria
  2. Francisco Suárez
  3. Hugo Grotius
  4. Samuel Pufendorf
  5. Emmerich de Vattel

D. Genocide

Antonio Cassese, The Various Aspects of Self-Defence

David Kopel, The Genocide Convention and the Right to Arms to Resist Genocide

E. A Global Second Amendment?



Chapter 14

Comparative Law


A.  National Constitutions

  1. Constitutional Rights to Arms




  1. Constitutional right of self-defense
  2. Constitutional self-defense against tyranny
  3. Constitutional security against home invasion

B. Comparative Studies

Franklin E. Zimring & Gordon Hawkins, Crime is Not the Problem: Lethal Violence in America

Martin Killias

David B. Kopel, Carlisle Moody & Howard Nemerov, Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations

C. United Kingdom in Modern Times

D. Japan

E. Nazi Germany

F. Switzerland



Chapter 15

Detailed Explanation of Firearms and Ammunition


A.  A Brief Introduction to the Parts of a Firearm

B.  Ammunition

  1. Bullet
  2. Case
  3. Primer
  4. Gun Powder

C.  Firearm Features

  1. Firing Mechanism
  2. Magazine
  3. Safety Devices
  4. Firearm User Safety

D. The Major Types of Firearms

  1. Handguns
    1. Semi-Automatic Pistols
    2. Revolvers

                          i.          Single Action Revolvers

                        ii.          Double Action Revolvers

  1. Legitimate Uses of Handguns
  2. Criminal Uses of Handguns
  3. Rifles
    1. Bolt-action
    2. Semi-Automatic
    3. Lever-action
    4. Single-shot
    5. Characteristics of Rifles
    6. Legitimate uses of rifles
    7. Crime with rifles
  4. Shotguns
    1. Shotgun Shells
    2. Types of Shotguns
    3. Legitimate Uses of Shotguns
    4. Crime with shotguns
  5. Specialty Types of Firearms And Accessories
    1. Muzzleloaders
    2. Machine Guns
    3. Silencers or Suppressors
    4. Armor-piercing Ammunition
    5. Air Guns
    6. Paint Guns
    7. Non-gun Arms





While this book proceeds chronologically, we expect that many users will approach the material out of sequence. Indeed, we have done so in our own classes. For example, it can be very effective to launch right into contemporary gun-law issues by starting with the Supreme Court’s major cases on the Second Amendment, District of Columbia v. Heller, and McDonald v. Chicago in Chapter 9, followed by chapter 11 for post-Heller issues. It is also effective to assign the chapters covering the 17th and 18th century in conjunction with coverage of Heller and McDonald. This approach illuminates the originalist historical analysis in both cases. The most relevant original materials for Heller (from English origins to the first decades of American independence) appear in Chapters 2 through 5. The original materials relevant to the Fourteenth Amendment are in Chapter 6.

The book is sufficiently modular to accommodate instructors who wish to use particular chapters as part of more general courses, e.g., criminal law, constitutional law, or jurisprudence. For example, someone teaching criminal law might use Chapters 7 and 8 (covering the main federal gun control statutes) for a discrete segment on firearms violations. The treatments of Heller and McDonald in Chapter 9, and the material on standards of review in Chapter 11, are a nice vehicle for examining various general modes of constitutional decision-making. The material in Chapter 10 is a good choice for showing how the perspectives of divergent communities can affect assessment of legal and constitutional issues.

Instructors interested in particular policy topics, such as gun shows, import restrictions, handgun carry permits, or “assault weapons,” will find sections covering them. Of course, the index will also highlight discrete treatments of such topics.

The Notes & Questions in the book frequently raise forward-looking issues and core questions that relate to current controversies. Some of the Notes & Questions are designated “Connection Questions” (CQ) to indicate their relevance to cases or topics in other chapters.

While the American debate on gun rights typically uses “the Second Amendment” as a shorthand for those rights, much of the legal history, and many of the contemporary legal battles, involves state constitutions. Today, 44 state constitutions have right-to-arms provisions. The book covers the state right-to-arms issues in depth, both for their intrinsic importance, and because the state cases sometimes provide guidance or background for understanding the Second Amendment. Because state issues appear throughout the book, readers should use the Table of Statutes and the Index to find all the material on any particular state.


An Overview of the Book

Chapter 1 explains how firearms function, and describes the major types of firearms. Chapter 1 also outlines the general scope of modern American gun laws, including variations among the states. The Chapter includes an Appendix of state constitutional provisions on the right to arms. The next nine chapters tell, in generally chronological order, the story of the development of gun regulation and gun rights in the United States.

The Second Amendment right to arms is widely viewed as a historical successor to the English right to arms, which was codified in the Declaration of Rights of 1689. Chapter 2 examines the historical and political background of the English right and English gun laws. It also explores the religious and philosophical background of the ideas of armed self-defense and a citizen militia. The chapter begins early Chinese philosophy, then covers ancient Greece and Rome, Judeo-Christian perspectives, medieval thought, and the Renaissance.

Chapter 3 examines the American colonial experience and the American Revolution. Colonial militias were important military and political institutions, and the militia regulations provide insight into the early understanding of the public and private roles of arms possession. The chapter also covers the British efforts to confiscate American firearms and gunpowder that played a major role in precipitating the American Revolution. Finally, the chapter covers the War of Independence and form of U.S. government before 1789.

Chapter 4 discusses the framing of the U.S. Constitution and its Bill of Rights. Ratification of the U.S. Constitution in 1789 created a more active and powerful federal government; among those new powers were direct federal control over the militia. The Bill of Rights was added to the Constitution in 1791, including a Second Amendment that affirmed the necessity of a well regulated militia, and recognized the right of the people to keep and bear arms. Chapter 4 examines the debates over the Constitution’s ratification, the drafting history of the Second Amendment, and the way the American right to arms was viewed by the earliest constitutional commentators.

Chapter 5 covers the first seven decades of the new republic. This period saw an evolution of the American understanding of both the role of militias and of the individual right to arms. The chapter starts with the political crisis of 1798-1800 that brought several states to the brink of armed resistance to the Federalist political agenda. The War of 1812 displayed both strengths and weaknesses of American militias. Chapter 5 also chronicles a significant transition in the direction of gun regulation in America. While colonial and revolutionary era gun control laws were mainly concerned with forcing people to own and carry guns, by the 1820s laws prohibiting people from carrying concealed guns and knives began to emerge, particularly in the South. These laws gave rise to the first judicial opinions addressing the scope of permitted regulation under the right to arms guarantees in the federal and state constitutions. The predominant view of the courts of this period was that the constitutional right to arms included an individual right to carry common weapons for self-defense, although legislatures could regulate the right. Many courts for example concluded that legislatures retained the power to prohibiting the concealed carrying of weapons. The Southern states continued the colonial practice of enacting highly restrictive laws prohibiting the ownership or carrying of guns by slaves and, sometimes, by free blacks, setting the precedent for broader restrictions after the Civil War. Abolitionists invoked the Second Amendment to complain about the disarmament of Free Soil settlers in Kansas in the 1850s, and to argue that the slavery and the Second Amendment were incompatible.

Chapter 6 begins with the period following the Civil War, proceeds through Reconstruction, and ends at the turn of the 19th century. In this period, the Fourteenth Amendment was adopted to protect individual civil liberties against state interference—and especially to combat abuses of newly freed slaves and their supporters. The Chapter offers examples of the many sources suggesting that the Amendment was intended to secure the individual liberties guaranteed in the federal bill of rights (including an individual right to arms for self-defense) against state infringement by state and local governments. The Chapter also tracks the decline of Reconstruction, and the failure of the initial promise of the Fourteenth amendment. Material includes the decisions by the U.S. Supreme Court narrowly interpreting the Fourteenth Amendment, rendering it of little value as a guarantor of individual liberties; adoption by the Southern states of restrictive laws of the Jim Crow era; and affirmation by Southern courts of increasingly restrictive (and often racially discriminatory) regulation of firearms—particularly the carrying and ownership of inexpensive handguns. As labor unrest grew in the North, some states prohibited mass armed parades, and the Supreme Court upheld such bans in Presser v. Illinois. The Court was, however, quite protective of armed self-defense by individuals, in “The Self-Defense Cases” which arose in federal territories. 

Chapter 7 examines the early twentieth century. In this period, gun control for individuals expanded beyond the South, as Northern states, concerned about the labor movement and unassimilated immigrants, adopt a variety of handgun control laws. The Chapter also marks the emergence of the first Federal gun control laws. In the 1930s, the federal government imposed regulation on commercial gun sales. The most significant of these was National Firearms Act of 1934 (NFA), which severely restricted ownership of a few classes of firearms viewed as unusually dangerous, such as machine guns and short shotguns. Chapter 7 is anchored by the Supreme Court’s treatment of a Second Amendment challenge to the NFA in United States v. Miller. Miller is a short and ambiguous opinion that declared that exercises of the Second Amendment right had to have a “reasonable relationship” to the maintenance of a well-regulated militia in order to be protected. For decades afterward, there was argument about whether Miller meant that the type of gun had to be suitable for a militia in order for it to be protected by the Second Amendment, or whether the individual had to be in a militia in order to have Second Amendment rights.  After Miller, lower federal courts began to develop a state-government-focused conception of the Second Amendment that gave little or no credence to individual challenges to federal or state gun regulations.

Chapter 8 is the longest chapter in this book. It covers the balance of the 20th century. The scope of federal firearms regulation grew dramatically in this period, with the passage of several major statutes, including the federal Gun Control Act of 1968, the Firearms Owners Protection Act of 1986, and the federal “assault weapons” ban that was enacted in and which expired in 2004. The Chapter offers a detailed treatment of the various issues that arise under the modern statutes and accompanying regulations, the vast majority of which remain valid even after the Supreme Court’s 2008 affirmation of the individual right to keep and bear arms in District of Columbia v. Heller. During the late 20th century, lower federal courts rejected any version of a Second Amendment right that would impose meaningful limits on gun regulation. However, the tenor of judicial treatments of the issue began to change towards the end of the century, as scholarly and political debates bolstered the individual rights theory. The Chapter includes section of social and political history that elucidates the most important bills, statutes, controversies and political battles of the period. This history provides important context for the Supreme Court’s ultimate affirmation of the individual right to arms.

Chapter 9 is dedicated to the landmark decisions in District of Columbia v. Heller and McDonald v. Chicago. In these decisions, a five-Justice majority of the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms for self-defense; that the Second Amendment right is a fundamental right made fully applicable against the states by the Fourteenth Amendment; and that handgun bans violate the Second Amendment.

Chapter 10 examines issues of gun rights and gun regulation from the special perspectives of race, gender, sexual orientation, and disability. The materials are mainly drawn from the amicus briefs filed in Heller by a variety of interest groups.

Chapter 11 addresses the aftermath of Heller and McDonald. This chapter covers several of the most important constitutional questions left unanswered by the two Supreme Court decisions, and how these topics are being addressed by state and federal courts. While, as Chapters 5 through 7 showed, state court case law on state right to arms provisions has been developing for almost two centuries, serious doctrinal development of the Second Amendment began only after Heller. Courts today are grappling with issue such as the standard of review, what types of arms are protected, and the right to “bear” arms in public places. Students and professors who want to explore gray areas in emerging legal doctrine will find Chapter 11 of particular interest.

The printed textbook ends with Chapter 11, but owners of the printed book have free access to three additional on-line chapters. These chapters are:

Chapter 12. Social science about the benefits and harms of firearms possession and use.

Chapter 13. International gun control law, from sources such as the United Nations, the Organization of American States, and other treaties and international law documents. The Chapter also covers the “Classical” period of international law, in which philosophers such as Grotius, Puffendorf, Vattel, Victoria, and Suárez built the foundations of international law partly by extrapolating from general principles of the rights and the limits of personal self-defense.

Chapter 14. Comparative gun control laws. Examining the gun laws of several nations, including Canada, the United Kingdom, Japan, Nazi Germany, Switzerland, and South Africa.

Chapter 15. While Chapter 1 provided an introduction to the different types of firearms and ammunition, and how they function, this Chapter covers the same topic in greater depth and detail. It includes many illustrations and diagrams.

While the on-line chapters are available through a locked website maintained by Aspen Publishers, there is also a free, public, website for this textbook, This public website provides numerous additional resources, including suggested topics for student research papers, a comprehensive list of published law review articles and ALR Annotations on arms-law topics, and links to numerous Internet resources on firearms law and policy.


Publishing Student research

Many students will use this book in upper-level classes in which they will write research papers. The public website offers some ideas for paper topics, as well as bibliographical and resource guides to help you get started.

Because Second Amendment doctrine is still in an early stage of development—especially in comparison to its closest analogue, the First Amendment, in which doctrinal development began in the 1930s—there are many opportunities for law student papers to make a genuine contribution to legal knowledge and analysis. If you write a good paper for your class, send it to us for consideration for publication on the public website.

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Opinion is Opinion, News is News

Posted by on Sep 16 2011 | Economics, Economy, Media, PPC, Taxes

Senior fellow and super-economist Dr. Paul Prentice recently wrote a letter to the editor that was published in the Colorado Springs Gazette. In it, he raises two important points: one, that there is a meaningful difference between opinion and news. Second, that there are more schools of economics out there than just Keynesian and ultra-Keynesian. His letter was in response to a Gazette cover story titled, “Economists Support Obama Plan.” As you might imagine, the article presented as news the idea that all of today’s economists (that are worth a darn) believe that Obama’s jobs plan is good and will help turn the economy around. This is where Dr. Prentice points out his two key points.

All the economists quoted in the story come from one school of economic thought, one school among many, who believe in Keynesian economics. The only dissent mentioned in the story is from ultra-Keynesians who didn’t think it goes far enough.

He went on to point out that good newspapers know the difference between opinion and news. He mentioned that the Wall Street Journal also presented some opinions about Obama’s jobs plan, but that in the Journal, they did it a bit differently…

The difference is the Wall Street Journal published these where they belong, on the editorial page, while the Gazette presented theirs where they didn’t belong, on the front page.

See the difference?

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Kopel on the Patriot Act

Posted by on Sep 15 2011 | Civil Rights, Counter-Terrorism Policy, Kopelization, PPC, Terrorism

Our resident Constitutional Law and Second Amendment expert Dave Kopel weighed in on the hot issue of personal liberty vs. national security in this issue of La Voz (Colorado’s #1 Hispanic publication). With the passing of the 10th anniversary of 9/11 just days ago, the Patriot Act has taken center stage once again. Take a look at what Dave thinks about the national security measures we’ve taken in the last 10 years.

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Rollie Heath on Devil’s Advocate This Friday

Posted by on Sep 15 2011 | Idiot Box (TV Show), PPC, Taxes

Want to spend this Friday night watching two guys argue about taxes? Then tune into the Independence Institute’s public affairs television show Devil’s Advocate as host Jon Caldara is first joined by State Senator Rollie Heath to discuss Prop 103, which would raise income and sales taxes in Colorado. Then stay tuned for the second half of the show as Mac Macsovits sits down to talk about the work of the Mile High Down Syndrome Association. That’s Friday at 8:30PM on Colorado Pubic Television 12. Re-broadcast Monday at 1:30PM.

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Congressional hearing on interstate handgun carry reciprocity

Posted by on Sep 14 2011 | congress, federalism, Fourteenth Amendment, guns, McDonald v. City of Chicago, Right to carry

On Tuesday I testified before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. My 24-page written testimony is here. The video of the subcommittee hearing is about and hour and 45 minutes. Nearly all members of the 21-member attended the hearing, and used their opportunity to ask 5 minutes worth of questions. Most of the questions posed to George Mason Law’s Prof. Joyce Malcolm, Philadelphia Police Commissioner Charles Ramsey, and me, were quite thoughtful. Some congressional hearings are just a form of kabuki theater, but in Tuesday’s hearing, Representatives of both parties, and on both sides of the gun issue, seemed to be sincerely trying to learn more. The bill currently has 243 House co-sponsors.

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Investigative Journalism 2.0

Posted by on Sep 13 2011 | PPC, Taxes, Transportation

It’s no secret the cost of investigative journalism is becoming prohibitive in the 21st century. Gone are the days when newspapers employed investigative teams to dig up dirt on politicians and wasteful government. Sure you can blame the Internet, but you’d have to confess that the Internet simultaneously killed the old investigative journalist guard and replaced it with the new, more nimble Internet investigative guard. Now anyone who has a cheap netbook, Internet connection, and a hot tip can play investigative journalist. (Thanks WordPress!) Unfortunately, publishing great scoops on your own website doesn’t automatically mean that it will get the attention that it probably deserves. This is one advantage the old media and it’s decimated force of investigative journalists still has on us. Therefore, when Independence Institute investigative journalist Todd Shepherd breaks something on our Independence Investigates website, he is delighted when the old media picks up on it. And sometimes, when old media echoes a breaking investigation loud enough, real changes occur in the real world.

Let me give you an example.

In February of this year, Todd broke a rather sickening story about sex offenders registering addresses with the state at locations of state-subsidized child care providers. Take a look at the original report here. Chuck Plunkett of the Denver Post reported on Todd’s investigation that same day – on the virtual pages of the Post. Sure enough, five months later the state removed 12 daycare providers from the registry thanks to Todd’s investigation. No doubt Chuck’s write-up in the state’s largest newspaper helped give legs to Todd’s work, which lead to the subsequent action by the state to rectify the situation. This is but one example of how new media and old media help each other.

Let me present you with the latest example. This Sunday Todd broke a story showing emails from CDOT employees discussing possible gas tax hikes and new taxes on fuel efficient vehicles. The next day, semi-old media picked the story up on their website. The prolific Michael Roberts of the Westword echoed Todd’s story on the Latest Word. You’ll notice in Michael’s piece that he gives a lot of love to the Independence Institute as well (look at our logo in all its glory). This kind of exposure is great for us. And great for new media in general.

A big thanks needs to go out to the Denver Post and publications like the Westword for reporting on our investigations. We have a harder time effecting change without you guys. And of course, thanks to Todd Shepherd for continually breaking huge stories. Taxpayers, ratepayers, and fans of transparency owe a lot to your work.

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AP, Fox31 Reporters Join Me

Posted by on Sep 12 2011 | Idiot Box (TV Show), Politics, PPC

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