David Kopel

An analysis of the new legal rules from the Supreme Court's decision about the right to bear arms and the background of the Court's preceding approach to the Second Amendment. The article also analyzes the Bruen concurrences and dissent, and suggests some of the decision's implication for other gun control issues.

“Red flag” laws, or “extreme risk protection orders”, have been enacted in several states. While the idea for these laws is reasonable, some statutes are not. They destroy due process of law, endanger law enforcement and the public, and can be handy tools for stalkers and abusers to disarm their innocent victims. Many order are improperly issued against innocent people.

The Conference of Chief Justices asked the Uniform Law Commissioners to draft a national model red flag law, but the Giffords organization blocked the effort — lest it offer an alternative to the extreme and reckless system being pushed by Giffords and related groups, most notably the Bloomberg entities.

When Confucius was asked what would be the first step if a government sought his advice, he answered, “It would certainly be to rectify the names. . . . If the names are not correct, language is without an object.” Bills that claim to be about “Extreme Risk Protection Orders” are not correct; the bills cover much lower-level risks, or just “a danger.” Likewise, the term “red flag” is dubious because some bills label as dangerous the peaceable exercise of constitutional rights. A more accurate name for these laws is “gun confiscation orders.”

Such orders can be legitimate when fair procedures accurately identify dangerous individuals. Such laws include the following features:

• Petitions initiated by law enforcement, not by spurned dating partners or relationships from long ago.
• Ex parte hearings only when there is proof of necessity.
• Proof by clear and convincing evidence that has been corroborated.
• Guarantees of all due process rights, including cross-examination and right to counsel.
• Court-appointed counsel if the respondent so wishes.
• A civil remedy for victims of false and malicious petitions.
• Safe and orderly procedures for relinquishment of firearms.
• Strict controls on no-knock raids.
• Storage of relinquished firearms by responsible third parties.
• Prompt restoration of concealed carry permits for the falsely accused.
• Prompt return of firearms upon the termination of an order.
• Renewal of orders based on presentation of clear and convincing proof.
• Not allowing time-limited orders to be bootstrapped into lifetime federal prohibition.

Extensive legal research confirmed a Standard Model of the Second Amendment: the Founders’ intended to recognize and protect a preexisting individual right to own and use firearms for self-defense. Although most gun laws will remain constitutional, despite their irrelevance to crime control, the Supreme Court's 2008 decision in District of Columbia v. Heller invalidated the nation's most restrictive law, which had banned the possession of handguns and had banned the use of any firearm for home protection. It remains to be seen whether the Supreme Court will “incorporate” the Second Amendment in the Fourteenth Amendment so that it limits excessively restrictive state and local laws as well. Criminologically, Heller will probably lead to an increase in gun use against home invasions and a possible decrease of such invasions. Unfortunately, specific data about home invasions are not collected, so the results may be impossible to measure.

In this article, I examine each of the state constitutions that contain an arms rights guarantee. For each state, I detail how the state arms right has been interpreted and what implications about the Second Amendment may be drawn from the language of the state provision. Throughout the analysis, several key questions recur:
* When the Second Amendment was written and adopted, was the language chosen already familiar as guaranteeing and individual's right to keep and bear arms, or was the language familiar as protecting the power of states over their own militias?
* Is the phrase "bear arms" a term of art referring exclusively to bearing arms while in militia service, or is the phrase used in its more ordinary sense to encompass bearing arms for a variety of
purposes, such as personal or family defense or sporting purposes?
* When states adopted the Second Amendment verbatim in their own state constitutions, what did this particular language do?
* What is the effect when concerns about standing armies are expressed contemporaneously or even in the same sentence as arms rights language?
* What is the implication when states create explicit exceptions to the right to arms, such as excepting the concealed carrying of weapons, or excepting large assemblies of armed men, or reserving the power to create certain types of gun laws?

Participation in Interpol is in the U.S. national interest. However, Interpol’s practice of allowing its members to transmit diffusions without systematic prior review by Interpol raises serious concerns. The U.S. should work with other democracies to reform Interpol’s diffusion
system and require the U.S. National Central Bureau to report annually on information provided to or received from Interpol about U.S. citizens. Because many Interpol members are not law-abiding democracies, the U.S. should further limit the nations that can access data that it provides to Interpol, protect U.S. citizens and individuals with a U.S. nexus from baseless or politicized Interpol notices and diffusions, and emphasize that continued U.S. support for Interpol depends on Interpol’s scrupulous adherence to its 1956 constitution.

Survey of the the social science and data on leading gun control proposals, including bans on "assault weapons" or magazines, treating lending a gun to a family member like selling a gun to a stranger, and confiscating firearms like Great Britain and Australia did, be catastrophic. The monograph argues that policymakers should make treatment available for persons with serious mental illness, and, when necessary, incapacitate such persons if they are proven to be at grave risk of perpetrating violent crime. Before adding new gun regulations to the legal code, policymakers should remember that several mass
murders in the U.S. were prevented because citizens used firearms against the culprit before the police arrived on the scene.

This article first examines one basis of the symbolic value of guns to some gun owners—as an affirmation of individualism and equality. Next,
the article discusses guns in relation to the rule of law, and how private armed defense is seen as either negating or fulfilling the rule of law in American. Next, the article looks at several aspects of the symbolic roles of gun control: as punishment of a "scapegoat" object, as status conflict, and as the subject of "moral panic." Finally, the growing role of medical researchers as gun control advocates is discussed, with an emphasis on implications of taking a medical, "scientific" approach to resolving a contentious social issue.

In a lengthy position paper, The Case for Domestic Disarmament, the Communitarian Network presents a forceful law-and-policy case for a gun-free America.
This Article evaluates and responds to Domestic Disarmament and
the Communitarian Network's gun prohibition agenda. In addition
to discussing Domestic Disarmament, this Article considers David C. Williams's Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, which calls for a somewhat different communitarian approach to gun policy. Williams argues that (1) the Second Amendment poses no impediment to any form of gun control on
individuals, and (2) in the long term, the government should revive
the "well regulated Militia"' and encourage citizen proficiency with
arms and participation in communal defense organizations.
Part I of this Article provides an overview of communitarianism
and the Communitarian Network and summarizes the argument of
Domestic Disarmament. Part II inquires into whether domestic disarmament is enforceable and what communitarian problems may be raised by enforceability issues. Part III sketches a variety of possible solutions to the American gun dilemma, including the communitarian militia proposals of Williams." Part IV briefly reviews the contribution that
firearms ownership may make to public safety, and Part V closely scrutinizes Domestic Disarmament's conclusion that the Second Amendment presents no barrier to firearms confiscation.

One of the most significant trends of federal law enforcement in the last fifteen years has been its militarization. The logical, perhaps inevitable, consequence of that militarization was seen in the disaster at Waco, Texas, resulting in the deaths of four federal agents, and seventy-six other men, women, and children.
In this article, we use the Waco tragedy as a starting point to examine the militarization of federal law enforcement, and similar trends at the state and local level.
Part Two of this article sets forth the details and rationale of the Posse
Comitatus Act--the 1878 law forbidding use of the military in law enforcement.
Part Three explicates how that Act was eroded by the drug war in the 1980s. The article then discusses how the drug exception to the Posse Comitatus Act was used to procure major military support for the Bureau of Alcohol, Tobacco and Firearms (BATF) raid against the Branch Davidians-even though there was no real drug evidence against them-and how the drug exceptions to the Posse Comitatus Act have made such abuses endemic.
Part Four examines the fifty-one day FBI siege of the Branch Davidian
residence, with a focus on the destructive role played by the FBI's Hostage Rescue Team, an essentially military force which has proved counterproductive in a civilian law enforcement context.
In Part Five we look at the problem of groupthink, its role in the Waco
tragedy, and the importance of keeping groupthink-prone institutions-like the military-out of law enforcement.
Finally, Part Six offers a broader view of the problem of the militarization of federal law enforcement. We examine the proliferation of federal paramilitary units and federal efforts to promote the militarization of state and local law enforcement. After explaining the direct connection between the drug "war" and law enforcement militarization, we propose numerous statutory remedies to demilitarize
law enforcement.

This article lets the nineteenth century legal community speak for its elf by dealing with the treatises and cases of the century, as well as Congressional and political debates. There is a great
deal to learn from what the nineteenth century had to say about the Second Amendment. Most importantly, we can resolve whether the Second Amendment has historically been considered to protect an individual right . Additionally, an examination of the Second Amendment in the nineteenth
century provides useful guidance about what types of gun control are constitutionally permissible.
Part II of this article analyzes the Second Amendment scholarship of the three great constitutional treatises of early nineteenth century—St. George Tucker’s American Blackstone, William Rawle’s A View of the Constitution of the United States of America, and Joseph Story’s Commentaries on the Constitution of the United States—as well as some lesser commentators from the 1830s, 1840s, and 1850s. Part II also includes a study of Justice Story’s dicta about the Second
Amendment in the 1820 case Houston v. Moore.
Part III addresses nineteenth century state constitutions and state case law regarding the right to arms. These constitutional texts and their judicial interpretation offer valuable insights into the meaning of the Second Amendment .
The Civil War is the subject of Part IV, which discusses Dred Scott, the writin gs of anti-slavery human rights activists and the confiscations of arms before and during the War.
Part V deals with the aftermath of the Civil War, including Congressional debates about the infringements by unreconstructed Southern states of the freedmen’s right to arms; the Fourteenth Amendment ; and the Supreme Court’s Cruikshank decision. Part V concludes with a discussion of the growth in labor unrest, restrictive gun laws aimed at labor agitators, and the Supreme Court’s Presser decision.
Scholarly commentators of the later nineteenth century are the subject of Pa rt VI. Thomas Cooley is the giant of this period, but there were also more than a dozen other constitutional treatises from the period, as well as the first law review articles on the right to arms.
Part VI I brings the article to the fin-de-siècle, by looking at two Supreme Court cases mentioning  the Second Amendment in dicta; it also peeks a head into the early twentieth century at the most important Second Amendment “states’ right” ruling—the Kansas case of Salina v . Blaksley. Part VII also examines the implications that  he nineteenth century records have for modern firearms policy, and for the scholarship of David Williams and Carl Bogus.
The Conclusion discusses which modes of Second Amendment analysis are plausible and which modes are implausible in light of the nineteenth century’s Second Amendment interpretation.

I would like to thank David Yassky for his well-written response to my
article. In my article in this symposium, I suggested that readers who think that the 1939 Miller case was the beginning and end of the Supreme Court’s Second Amendment jurisprudence should broaden their view by studying everything that the Supreme Court has said about the Second Amendment.
David Yassky, in reply, gives both me and the Supreme Court too much credit for creativity, and for inventing novel approaches to the Second Amendment. Let’s start by discussing the credit that I do not deserve.

Among legal scholars, it is undisputed that the Supreme Court has said almost nothing about the Second Amendment. This article suggests that the Court has not been so silent as the conventional wisdom suggests. While the meaning of the Supreme Court’s leading Second Amendment case, the 1939 United States v. Miller decision remains hotly disputed, the dispute about whether the Second Amendment guarantees an individual right can be pretty well settled by looking at the thirty-five other Supreme Court cases which quote, cite, or discuss the Second Amendment. These cases suggest that the Justices of the Supreme Court do now and usually have regarded the Second Amendment “right of the people to keep and bear arms” as an individual right, rather than as a right of state governments.
Part I of this Article discusses the opinions from the Rehnquist Court. Part II looks at the Burger Court, and Part III at the Warren, Vinson, and Hughes Courts. Part IV groups together the cases from the Taft, Fuller, and Waite Courts, while Part V consolidates the Chase, Taney, and Marshall Courts.

A review of state and federal courts decisions on the scope of state police powers suggests that the shift from the more restrictive sic utere principle to the more open salus populi principle may be reversing, with courts -- at least in cases involving sex and marriage -- taking a much more skeptical view of government objectives and justifications.

In this article, we examine Miller v. Texas to see how far the American and Texas criminal justice systems have, or have not, evolved since 1894 in the context of a highly-publicized shooting of a police officer in alleged self-defense. Today's American legal community tends to think of itself as vastly more enlightened than it was in the bad old days of the 1890s, but we suggest that things have not progressed quite as far as the American legal community might claim.

Advocates of firearms prohibition and other restrictive laws often state that every year around the world, five hundred thousand people are killed by small arms and light weapons (SALW)—most of which are owned by civilians. The statistic of half a million people killed by “firearms” or by SALW is the most widely cited statistic by advocates of international weapons control. Such advocates promise that disarming civilians will dramatically reduce these deaths.
When one carefully examines the data behind the “500,000” factoid, however, the issue appears more complex. First of all, the data simply does not support the “half a million” factoid. This myth has gained strength through repetition, but following the claim to its origin leads to the same observation that Gertrude Stein made about Oakland: “there is no there there.”
Moreover, the simplistic agglomeration of all SALW into a single total, with all deaths in that total presumed to be caused by overabundance of firearms in civilian hands, evades consideration of essential policy issues on firearms control. For example, how many deaths from “armed conflicts” are the result of aggression against civilians by governments and government agents? How many of these deaths result from resistance to government abuse by innocent citizens fighting to protect their human rights? How many deaths from homicides and suicides in “peaceful” countries would have been prevented if civilian access to small arms could be reduced, or even eliminated?

“Micro-disarmament” is a term of art in the small arms prohibition community, referring to the disarmament of the civilian population in a particular country. Advocates of micro-disarmament argue that the success of micro-disarmament in particular countries demonstrates that reducing or eliminating the prevalence of firearms reduces violence. Micro-disarmament successes are touted as proof of the desirability of ever-broader campaigns to disarm civilian populations worldwide. This article examines six case studies of micro-disarmament: Cambodia, Bougainville, Albania, Panama, Guatemala, and Mali.
In each of these six countries, we argue, micro-disarmament has failed or has not been nearly as successful as firearms prohibitionists have claimed. We suggest that the emphasis on disarming civilians as the key to peace is mistaken, because, as these six case studies demonstrate, true and lasting peace must be based on protection of human rights. When human rights are secure, violence will diminish; conversely, when human rights are denied, many people will refuse to surrender the tools necessary to defend their lives and liberties.1

In this article, we survey state constitution right-to-arms cases from 1822 to the present, and explicate some analytical techniques for federal courts addressing Second Amendment cases. Because no law review has ever published an in-depth analysis of the full scope of state cases, this article fills some of the gap.
Part II studies the antebellum cases, Part III the post-bellum nineteenth century cases, Part IV the early twentieth century cases, and Part V the cases since World War II.
But first, in Part I, we offer some broad analysis of standards of review, and discuss Adam Winkler's Michigan Law Review article that proposed "reasonableness" as the Second Amendment standard of review.

This Article provides the first legal biography of Senator Lyman
Trumbull, one of the most important lawyers and politicians of the
nineteenth century. Early in his career, as the leading anti-slavery
attorney in Illinois in the 1830s, he won the cases constricting and then
abolishing slavery in that state; six decades later, Trumbull represented
imprisoned labor leader Eugene Debs in the Supreme Court, and wrote
the Populist Party platform. In-between, Trumbull helped found the
Republican Party, and served three U.S. Senate terms, chairing the
judiciary committee.
One of the greatest leaders of America’s “Second Founding,”
Trumbull wrote the Thirteenth Amendment, the Civil Rights Act, and the
Freedmen’s Bureau Act. The latter two were expressly intended to
protect the Second Amendment rights of former slaves. Another
Trumbull law, the Second Confiscation Act, was the first federal statute
to provide for arming freedmen. After leaving the Senate, Trumbull
continued his fight for arms rights for workingmen, bringing Presser v.
Illinois to the U.S. Supreme Court in 1886, and Dunne v. Illinois to the
Illinois Supreme Court in 1879. His 1894 Populist Party platform was
a fiery affirmation of Second Amendment principles.
In the decades following the end of President James Madison’s
Administration in 1817, no American lawyer or legislator did as much
as Trumbull in defense of Second Amendment. Yet Lyman Trumbull had
little personal interest in firearms, and never considered the Second Amendment to be one of his major issues. So how did Lyman Trumbull
become the leading Second Amendment lawyer of the time? His lifelong
cause was the “poor who toil for a living in this world.” When
Trumbull examined America in the nineteenth century, he saw that the
rights of the toilers could always be trampled, unless they had the right
to arms, individually and collectively.
The story of Lyman Trumbull’s career begins in the Age of Jackson
and ends with Trumbull’s protégé, William Jennings Bryan, winning the
Democratic presidential nomination in 1896. It is a story of a man who
changed political parties five times, while holding fast to his
fundamental principle of free labor. Even today, “The Grand Old Man
of America” continues to shape our understanding of constitutional
liberty.

This Article details the legal, cultural, and political history of the right to arms in Colorado in the nineteenth century. The Article pays particular attention to the period between 1858, when mass settlement began with the gold rush, and 1876, when Colorado achieved statehood. When Colorado became the thirty-eighth state, Coloradans chose to adopt a constitution whose right to arms guarantee was stronger than any other state. The choice stemmed in part from pre-statehood conditions, when the settlers had to rely on their own resources for defense against a myriad of dangers. Right from the start, Coloradans established a vigorous and enduring tradition of self-government and self-defense. In the Colorado view, the right to arms is an inherent, inalienable human right, which is protected by legitimate governments, but not created by government. Accordingly, the Article extensively describes the exercise of the right to arms by Colorado Indians. Not only were their rights guaranteed by the 1876 constitution, they had vigorously exercised their natural right to arms since long before the constitution was adopted.

This Article describes the process for deciding Second Amendment cases, as set forth by the Circuits of the United States Courts of Appeals. The focus of the Article is how the circuit courts analyze Second Amendment cases. In the eight years since the Supreme Court decided District of Columbia v. Heller,  the  circuit  courts  have  collectively  worked  out  a  Second  Amendment methodology. Although there are differences among the circuits, and sometimes  among  panels  within  the  same  circuit,  the  methodology  described 
below has become standard, albeit not universal.
We have examined every post-Heller circuit case, including the unpublished ones. The cases are listed in the Appendix by circuit. We occasionally  cite  state  court  and  federal district  court  cases  that  are  especially illuminating.
Part I summarizes the key legal rules from Heller. Part II does the same for McDonald  v.  Chicago,  which  holds  that  the  Second  Amendment  right  is enforceable  against  the  states. 
Part  III  enumerates  the  various  rights  that  are  included within the Second Amendment, in addition to the home defense right which was at issue in Heller.
Part IV explicates the Two-Part Test nearly every circuit  has  adopted  for  analyzing  Second  Amendment  issues.  Part  V  explains how the circuits have wrestled with Heller’s ambiguous language about certain “presumptively lawful” gun controls, and how that language has been applied to the Two-Part Test.
Part VI examines in detail the application of Step One of the Two-Part Test—namely, whether something is part of the Second Amendment right as traditionally understood. Part VII summarizes the different  ways  courts  have  treated  the  Second  Amendment  outside  the  home,  such  as  whether  bearing  arms  in  public  places  passes  or  fails  Step  One. 
Part VIII  examines  the  first  decision  that  must  be  made  under  Step  Two  of  the Two-Part  Test:  which  level  of  heightened  scrutiny  to  use. 
Part  IX  describes how  various  levels  of  heightened  scrutiny  are  applied  in  Second  Amendment  cases.  Among  the  topics  is  how  consideration  of  alternative  measures  (which  infringe less of the right) is less stringent in intermediate scrutiny. In conclusion, Part X summarizes all the elements of the  Circuit Courts’ Second Amendment doctrines.

The Waco disaster represented just one of many ways in which the federal government and some state or local law enforcement agencies have been curtailing American rights and liberties in the name of “wars” against crime, drugs, and terrorism. Thus, when we wrote about Waco in 1997, our concluding chapter and first appendix were geared toward having “no more Wacos.” The reforms we proposed were based on numerous other law-enforcement abuses noted by us and others during the final decades of the twentieth century. So, in addition to looking at what may have been learned about Waco in the past twenty years, and whether law enforcement has changed, it is important to see whether law enforcement—for that matter, the U.S. Congress, the President, and his advisors—learned anything about how to fight crime without undermining the U.S. Constitution and killing innocent people.
So in this article, we first summarize information that was learned after the 1997 publication of our book. We then analyze how law enforcement, especially federal law enforcement, has or has not changed since Waco.

Eric Ruben and Joseph Blocher’s empirical investigation makes a major contribution to scholarship by providing a wealth of data about post-District of Columbia v. Heller Second Amendment litigation. The article’s many tables of interesting data deserve praise. The article’s only major weakness, in my view, is a repeated assertion that is not supported by and is in fact inconsistent with the data.
Ruben and Blocher contend that the Second Amendment is not being underenforced by lower courts. They even defend the federal circuits that are most commonly charged with underenforcement: the Second, Fourth, and Ninth. The data in the article are inadequate to support a conclusion that the Second Amendment is being fully enforced. Indeed, looking at the actual, final results of major cases reveals a serious problem of underenforcement in some jurisdictions. For example, in some circuits, the right to bear arms is not merely underenforced; the right is nullified.

Murders  in  Newtown,  Connecticut,  and  elsewhere  have  spurred public  debate  about  reforming  mental  health  laws.  This  Article  proposes  reforms,  which  will  better  protect  the  public,  including  the  severely mentally ill, while preserving the due process rights of everyone.
About  18  percent  of  all  murders  are  perpetrated  by  persons  suffering  from  severe  mental  illness.  For  mass  attacks  against  strangers, the  percentage  is  far  higher.  Severe  mental  illness  also  plays  a  major role  in  many  other  violent  crimes,  often  through  secondary  effects  of the  illness,  such  as  unemployment.
Absurdly, there are three times more persons with severe mental illness in jails and prisons today than there are in psychiatric hospitals. Often,  the  people  who  end  up  in  penal  institutions  had  previously sought mental health treatment, but could not get it. The most necessary  reform,  from  a  public  safety  viewpoint,  is  the  provision  of  sufficient funding so that voluntary treatment is available for the severely
mentally  ill.
Only  a  small  minority  of  severely  mentally  ill  people  is  dangerously  violent.  For  them,  involuntary  commitment  to  inpatient  or  out-patient  programs  can  be  life-saving  for  them  and  for  other  persons. Today, more than one-quarter of the current state-to-state variation in murder rates can be explained by differences among involuntary commitment  laws,  with  broader  commitment  standards  correlating  with
lower  murder  rates.
This  Article  does  not  recommend  weakening  any  due  process protections currently in place for involuntary commitments. The Article does recommend removing the requirement in some states that an involuntary commitment based on serious danger may only take place when  the  danger  is  “imminent.”
Nothing  in  the  statute  books  matters  if  persons  who  know  about an obvious danger fail to act. The killers at the Aurora movie theater and  in  Tucson  both  could  have  been  committed  under  the  existing laws  of  their  states,  but  officials  at  the  University  of  Colorado  and  at Pima Community College failed to inform anyone about their dangerously  mentally  ill  ex-students.
Part  I  provides  the  definitions  for  the  mental  illnesses  that  are the  subject  of  this  Article.  Part  I  also  provides  estimates  of  the  numbers  of  people  in  the  United  States  who  suffer  from  these  illnesses.
Part  II  examines  the  data  about  the  relationship  between  severe mental  illness  and  violent  crime.  Severe  mental  illness  does  significantly raise the odds that a person will perpetrate a violent crime. But most often, the increased risk is not from the immediate effect of the illness itself (such as hallucinations or delusions) but rather from otherfactors—such as developing a substance abuse problem, or being victimized—for  which  the  seriously  mentally  ill  are  at  particularly  high risk.  As  Part  II  explains,  seriously  mentally  ill  people  are  much  more likely to be crime victims than to be crime perpetrators, and the large majority of people who are seriously mentally ill never perpetrate violent  crimes.
Part III examines the data on serious mental illness and homicide, especially mass homicide. At this extreme end of the criminality spectrum,  the  association  between  untreated  severe  mental  illness  and mass  murder  is  overwhelming.  The  fraction  of  perpetrators  who  are severely  mentally  ill  is  grossly  disproportionate  to  the  small  percentage  of  the  population  with  severe  mental  illness.
Part IV explains current statutory and case law about when a person  may  be  deprived  of  the  constitutional  rights  to  arms,  based  on alleged mental illness. The federal Gun Control Act of 1968 imposes a lifetime firearms prohibition for any person who has been adjudicated mentally  ill.  More  recently,  due  process  protections  have  been  some-
what  improved,  especially  for  persons  who  had  a  problem  decades ago,  and  who  have  fully  recovered.
Part V details the depressing results of the de-institutionalization movement  of  the  latter  part  of  the  twentieth  century.  Today,  prisons and  jails  house  far  more  seriously  mentally  ill  people  than  do  mental institutions.
Part VI describes the social science research showing that broader  laws  on  civil  commitment  have  a  large  effect  in  reducing homicides.  Part  VI  also  explains  that  the  number  of  available  mental health  beds  (for  either  voluntary  or  involuntary  treatment)  is  grossly insufficient.  Fixing  the  problem  will  require  a  great  deal  of  spending; the  spending  would  be  cost-effective  in  the  long  run,  due  to  reduced
crime  and  other  maladies.
Part VII explains the history of constitutional standards regarding civil  commitment,  and  recent  statutory  reforms  in  Virginia  and  Wisconsin. We argue that states which currently require “imminent” danger  for  a  mental  health  commitment  should  remove  the  imminence requirement, but should not weaken the due process requirements for
short-term  or  long-term  commitments.
Part VIII describes the mental health issues and the commitment laws  which  could  have  been  used  for  the  perpetrators  of  four  recent, notorious  mass  murders:  at  the  Washington  Navy  Yard,  Tucson,  the Aurora  theater,  and  Newtown.  In  at  least  two  of  the  cases,  existing state  laws  could  have  authorized  a  commitment,  but  the  people  who knew  about  the  danger  failed  to  act.
Part  IX  summarizes  state  experiences  with  a  relatively  new  form of  commitment:  involuntary  outpatient  commitment  (IOC).  Rather than being held in a mental institution, a person may be ordered by a court to undergo outpatient treatment. For some mentally ill persons, IOC works well, and is a less restrictive alternative to inpatient
commitment.

This Article surveys nineteenth century laws and cases that restricted arms ownership based on age. We analyze the nineteenth century statutes and cases through the lens of five federal Circuit Court of Appeals cases involving restrictions on the Second Amendment rights of young people.
Part II examines Rene E., a First Circuit case. Because Rene E. relied on nineteenth century cases, Part II analyzes those cases.
Part III is the Fifth Circuit’s NRA v. BATF, which cited nineteenth century statutes, some of which had led to the cases that Rene E. cited. So, Part III reviews the statutes.
Parts IV, V, and VI each have shorter discussions of the other leading Circuit cases: NRA v. McCraw (5th Cir.) (carry permits); Horsely v. Trame (7th Cir.) (parental permission for gun license), and Ezell v. Chicago (7th Cir., “Ezell II”) (ban on persons under 18 using firing ranges).
Because this Article focuses on post-Heller circuit court cases and their use of history, there are certain topics that we do not address. First, we discuss the Supreme Court’s Second Amendment decisions only to the extent that they are discussed by the circuit opinions. Second, we do not discuss the history of colonial and Early Republic militia statutes. Those statutes typically set the minimum age for militia service at sixteen, although by the end of the eighteenth century the minimum age federally and in most states had been raised to eighteen. Third, we do not discuss contemporary gun control laws, except to the extent that particular laws are at issue in the circuit cases we analyze. All of the topics that we do not examine in this Article will be reviewed in depth in an Article in the next issue of this Journal.

Since the Supreme Court’s 2008 decision in District of Columbia v. Heller, lower courts have analyzed diverse Second Amendment issues. One question is whether young adults—that is, persons aged 18-to-20—have Second Amendment rights. This article suggests that they do. Indeed, under Heller’s originalist methodology, this is an easy question.
Part I examines what the Supreme Court has said, explicitly and implicitly, about the Second Amendment rights of young adults.
Parts II and III survey colonial and founding-era sources. Part II begins with a glossary of various terms that were used in militia statutes. These show some of the arms and accoutrements that Americans were required to possess. The various items illustrate that the right to arms does not include only firearms and ammunition. The right also includes, for example, edged weapons and gun-cleaning equipment. Part II also describes the arms culture of early America, where it was a point of national pride that people were trained to arms “from their infancy.”
Part III then surveys all the militia statutes from the earliest colonial days through 1800. The survey pays particular attention to two issues. The first is the age for militia service or for other forms of mandatory arms possession. As the statutes demonstrate, arms possession was mandatory for militiamen and for other categories of people. In some colonies, for example, every head of a house, regardless of gender, had to possess arms. So did men who were too old for militia service. The most common ages for mandatory militia service were from 16 to 60. But by the end of the eighteenth century, the militia mandate had been narrowed in most states to 18 until 45 or 50.
The second issue in Part III is the types of arms that militiamen—and the many other people required to possess arms—were supposed to own. Part III tracks the evolution of these laws, as they become more specific about requiring various accoutrements—such as gun cleaning equipment, holsters, and ammunition storage devices—and the laws’ attempts to ensure that the public possesses modern arms.
Part IV describes federal laws regarding the ages for arms possession. These include the 1792 statute making 18-year-olds into members of the federal militia (as they are today, by statute), the 1968 Gun Control Act setting age limits on purchases in gun stores, and the 1994 federal law restricting handgun possession by persons under 18.
Part V covers the five leading post-Heller federal circuit court cases on age limits for exercising Second Amendment rights. Two of these cases relied heavily on cases and statutes from the nineteenth century; thus, in the course of discussing the cases, we survey the nineteenth century developments. By the end of the century, a substantial minority of states that placed some restrictions on handgun acquisition by persons under 21.
Finally, Part VI describes some of the present-day state laws that limit firearms acquisition or possession by young adults (18 to 20). Part VI also considers various past and present age limits in American law for different activities, such as voting, vices (e.g., alcohol, gambling), marriage, and the right to keep and bear arms.
In conclusion, this article finds that there is some historical precedent for extra regulation for handgun acquisition by young adults, and very little for extra restrictions on long gun acquisition. Pursuant to Heller, extra regulations for young adults may be permissible, but prohibitions or quasi-prohibitions are not. The Second Amendment rights of young adults include a core right affirmed in Heller: acquiring and keeping a handgun in the home for lawful self-defense.

Where may the government prohibit the bearing of arms? In District of  Columbia v. Heller, the U.S. Supreme Court offered a short answer: “in  sensitive places such as schools and government buildings.” This Article  examines the historical foundation and the modern application of the  sensitive places doctrine.

Heller’s terse “sensitive places”  dicta was part of a list of three types of “presumptively lawful  regulatory measures.” The Court promised that “there will be time enough  to expound upon the historical justifications for the exceptions we  have mentioned if and when those exceptions come before us.”

Since  the 2008 Heller opinion, the Court has not elaborated on the meaning of  “sensitive places.” Thus, lower courts have been required to find their  own answers.

This Article is the first to analyze the full scope  of the sensitive places doctrine. Part I examines English history,  starting with a 1313 law that forbade bringing arms to Parliament.  Protecting government deliberation from violent interference is the core  of the sensitive places tradition.

Part II looks at colonial  America and the Founding. Several colonial and early state laws  safeguarded government deliberation by barring arms from courts or  polling places. Some scholars have argued that in England and Early  America, arms carrying was prohibited everywhere. Parts I and II address  that argument.

Part III covers the nineteenth century, when more  states enacted laws for protection of government deliberation. A few  states enacted laws against carrying arms at most public or private  gatherings.

Part IV surveys the twentieth century and the pre-Heller portion of the twenty-first.

Post-Heller  precedent is covered in part V, as courts have tried to decide what  places are “like” schools and government buildings.

Finally, Part VI consolidates the rules of the “sensitive places” doctrine, based on text, history, tradition, and precedent.

This Article examines past and present systems requiring that a person receive permission before buying or borrowing a firearm. The Article covers such laws  from  the  eighteenth  century  to  the  present,  which  have  traditionally  been rare in the United States. The major exceptions are antebellum laws of the slave states,  and  laws  of  those  same  states  immediately  after  the  Civil  War  that  forbade gun ownership by people of color, unless the individual had been granted government  permission.  Today  “universal  background  checks”  are  based  on  a system  created  by  former  New  York  City  Mayor  Michael  Bloomberg  and  his “Everytown” lobby. Such laws have been enacted in several states and proposed as  federal  legislation.  Besides  covering  the  private  sale  of  firearms,  they  also cover most loans of firearms and the return of loaned firearms. By requiring that almost  all  loans  and  returns  be  processed  by  a  gun  store,  these  laws  dangerously  constrict  responsible  firearms  activities,  such  as  safety  training  and  safe storage. Massachusetts, Connecticut, and California are among the jurisdictions that  have  enacted  less  restrictive  legislation  creating  controls  on  private  firearms  sales  without  inflicting  so  much  harm  on  firearms  safety.

According  to  the Colorado  Constitution:  “The  general  assembly
shall  provide  that  after  the  year  eighteen  hundred  and  seventy-six  the electors  of  the  electoral  college  shall  be  chosen  by  direct  vote  of  the people.”The Colorado Constitution  is  the  only  state  constitution  that guarantees the right to the people to direct election of presidential electors.

In 2019, the general assembly enacted a statute to violate that right.
Under the statute, Colorado’s presidential electors would not be directly
elected by the people of the Colorado. Instead, they would be appointed by a state  official.  The  state  official would  make  the  appointment  based  on votes in other states, rather than on the direct vote of Coloradans.

In other words, even if the majority of the Colorado voters voted for
electors pledged to candidate A, the Secretary of State would nevertheless appoint  electors  pledged  to  candidate  B if  candidate  B had a  plurality of votes nationwide.

Part  I  of  this Article describes constitutional  rules  for  choosing
presidential electors, as provided by the U.S. Constitution and the Colorado Constitution.

The Colorado Constitutional rules for electors are contained in the
Constitution’s Schedule. Part II explains that the Schedule is and always has been a  legally  enforceable  element  of the  Colorado  Constitution. The Schedule’s text says so, and so has the Colorado Supreme Court.

Part  III  examines whether  the  National  Popular  Vote Interstate
Compact(by which Colorado electors would be appointed by a state official) violates  the Colorado  Constitution  guarantee  of  direct  election  of  the presidential electors. This Article argues the National Popular Vote Compact plainly violates the text of the Colorado Constitution.

The en banc Ninth Circuit on March 24 held by a seven-to-four vote that the Second Amendment right does not encompass open handgun carriage. The decision in Young v. Hawaii complements the Circuit’s 2016 en banc Peruta v. San Diego, which held that concealed carry is categorically outside the Second Amendment. Thus, according to the Ninth Circuit, a State may ban both open and concealed carry. There is no right to bear handguns. Carrying arms in public for defense is “not within the scope of the right protected by the Second Amendment.” Four judges dissented, in an opinion written by Judge Diarmuid O’Scannlain.

Most revealing about Young’s lengthy majority opinion is how it selectively cites the sources on which it relies.
Part I of this Article examines Young’s treatment of Supreme Court precedents. Part II reviews the Ninth Circuit’s description of English law; Part III American colonial law, and Part IV subsequent American law. Part V discusses the Ninth Circuit’s argument that bearing arms may be banned to respect State and local sovereignty.

This Article examines all reported state court cases involving the right to arms during the first century following ratification of the Amendment in 1791. The Article cases, and details the procedural postures and facts, not only the holdings. With three important exceptions from Illinois in 1879, none of the right to arms cases appears to have arisen as a test case: they were ordinary criminal or civil cases in which lawyers raised right to arms issues. The Article closely examines how the Supreme Court integrated the nineteenth century arms cases into Heller
and McDonald to shape modern Second Amendment law.
Part I briefly explains two English cases which greatly influenced American legal understandings. Semayne’s Case is the foundation of “castle doctrine”—the right to home security which includes the right of armed self-defense in the home. Sir John Knight’s Case fortified the tradition of the right to bear arms, providing that the person must bear arms in a non-terrifying manner.
Part II examines American antebellum cases; these are the cases to which Heller looked for guidance on the meaning of the Second Amendment.
Part III looks at cases from Reconstruction and the early years of Jim Crow through 1891. As with the antebellum cases, the large majority of post-war cases are from the Southeast, which during the nineteenth century was the region most ardent for gun control. The heart of gun control country was Tennessee and
Arkansas; courts there resisted some infringements of the right to arms, but eventually gave up. Heller and McDonald did not look to the Jim Crow cases as constructive precedents on the Second Amendment.

This Article examines all reported state court cases involving the right to arms during the first century following ratification of the Amendment in 1791. The Article cases, and details the procedural postures and facts, not only the holdings. With three important exceptions from Illinois in 1879, none of the right to arms cases appears to have arisen as a test case: they were ordinary criminal or civil cases in which lawyers raised right to arms issues. The Article closely examines how the Supreme Court integrated the nineteenth century arms cases into Heller
and McDonald to shape modern Second Amendment law.
Part I briefly explains two English cases which greatly influenced American legal understandings. Semayne’s Case is the foundation of “castle doctrine”—the right to home security which includes the right of armed self-defense in the home. Sir John Knight’s Case fortified the tradition of the right to bear arms, providing that the person must bear arms in a non-terrifying manner.
Part II examines American antebellum cases; these are the cases to which Heller looked for guidance on the meaning of the Second Amendment.
Part III looks at cases from Reconstruction and the early years of Jim Crow through 1891. As with the antebellum cases, the large majority of post-war cases are from the Southeast, which during the nineteenth century was the region most ardent for gun control. The heart of gun control country was Tennessee and
Arkansas; courts there resisted some infringements of the right to arms, but eventually gave up. Heller and McDonald did not look to the Jim Crow cases as constructive precedents on the Second Amendment.

This article examines the implications of treating guns like consumer products. First, it compares the regulatory treatment of guns to that of two other consumer products associated with a large number of deaths: automobiles and alcohol. The article suggests that, statistically speaking, automobiles and alcohol are at least as dangerous as guns. Yet were we to treat guns like automobiles or alcohol, we would have to remove most gun restrictions because guns are already regulated much more strictly than automobiles or alcohol.

Next, the article examines several particular proposals for “treating guns like consumer products.”  These proposals include censoring gun advertising, imposing certain design modifications on firearms (including “smart gun” mandates), and banning handguns--actions to be accomplished by administrative decree rather than by legislative choice. The articles suggests that the censorship proposals aim simply to silence one side of a controversial policy debate; that the proposed design modifications would increase firearms accidents and impair life-saving defensive firearms uses; and that banning handguns is too momentous a decision to be undertaken by unelected administrators.

Finally, the article argues that firearms should be treated like other consumer products, such as newspapers and books, which are all protected by the Bill of Rights and by state constitutions.

For the last several decades, the United States and Canada have enjoyed robust scholarly inquiry into the law and policy issues regarding gun control and gun rights. Yet in the United Kingdom, scholarly attention to firearms policy has been almost nil. 4 As a result, the definitive history of the right to arms guarantee in the 1689 English Bill of

Currently, the United Nations is drafting an Arms Trade Treaty to impose strict controls on firearms and other weapons. In support of hasty adoption of the Treaty, a UN-related organization of Treaty supporters is has produced a report claiming that armed violence is responsible for 740,000 deaths annually. This Article carefully examines the claim. We find that the claim is based on dubious assumptions, cherry-picking data, and mathematical legerdemain which is inexplicably being withheld from the public. The refusal to disclose the mathematical calculations used to create the 740,000 factoid is itself cause for serious suspicion; our own calculations indicate that the 740,000 figure is far too high.

Further, while the report claims that 60% of homicides are perpetrated with firearms, our review of the data on which report claimed to rely yields a 22% rate. The persons responsible for the report have refused to release their homicide calculations, or any other calculations.

This Article also shows how a narrow focus on restricting firearms ownership continues to distract international attention from life-saving, viable solutions. We propose some practical alternatives which have already saved lives in war-ravaged areas.

Published in NYU Journal of Law & Liberty, volume 5 (2010), beginning on page 672.

The international gun prohibition movement seeks to severely restrict of eliminate the possession of firearms by non-state actors. This article argues that the prohibition on arms possession by non-state actors is contrary to the fundamental principle that the people, not the government, possess the sovereignty. The article examines the relationship between arms possession and sovereignty in several contexts: ancient Greece, Cambodia, Japan, China, East Timor, Bougainville, Niger, Angola, Zimbabwe, Uganda, the Warsaw Pact, and Bosnia.
Published in Texas Review of Law and Politics, volume 8 (2004), beginning on page 373.

The article details Jewish law attitudes towards self-defense and defense of others. Sources examined include the Torah (the first 5 books of the Bible), the Talmud, and Jewish law commentators.
Published in Penn State Law Review, volume 109 (2004) beginning on page 17.

Using case studies from Latin America, Kenya, and Zambia, this article examines the claim of gun prohibition advocates that the presence of small arms is a cause of economic underdevelopment. The article also details the harmful effects of UN policy regarding malaria and AIDS in the Third World.
Published in Engage. Volume 6, number 1, pages 85-100 (2005).

Many twenty-first century Americans believe that they have a God-given right to possess arms as a last resort against tyranny. One of the most important sources of that belief is the struggle for freedom of conscience in the United Kingdom during the reigns of Elizabeth I and the Stuarts. A moral right and duty to use force against tyranny was explicated by the Scottish Presbyterians George Buchanan and Samuel Rutherford. The free-thinking English Christians John Locke and Algernon Sidney broadened and deepened the ideas of Buchanan and Rutherford. The result was a sophisticated defense of religious freedom, which was to be protected by an armed people ready to resist encroachments on their natural, sacred liberties. The principle that right to arms is the ultimate guarantor of the right to free exercise of religion is one reason why the First and Second Amendments are placed next to each other in the American Bill of Rights.
Published in Bridges, Vol. 12, Nos. 3/4, Fall/Winter 2005, beginning on page 291.

Closely examining the Darfur, Sudan, genocide, and making reference to other genocides, this Article argues that the genocide prevention strategies which are currently favored by the United Nations are ineffective. This Article details the failures of targeted sanctions, United Nations peacekeepers, and other antigenocide programs. Then, this Article analyzes the Genocide Convention and other sources of international human rights law. Because the very strong language of the Genocide Convention forbids any form of complicity in genocide, and because the Genocide Convention is jus cogens (meaning that it prevails over any conflicting national or international law), this Article concludes that the Genocide Convention forbids any interference, including interference based on otherwise valid laws, against the procurement of defensive arms by groups which are being victimized by genocide.
Published in Notre Dame Law Review, volume 81 (2006), beginning on page 1275.

In "Guns and Violence: The English Experience." Joyce Malcolm tells the story of the arms possession, arms control, and violent crime in England from the Middle Ages through the end of the twentieth century.
Guns and Violence tells a remarkable story of a society’s self-destruction, of how a government in a few decades managed to reverse six hundred years of social progress in violence reduction. The book is also a testament to the amazing self-confidence of British governments; Labour and Conservative alike have proceeded with an extreme anti-self-defense agenda, although the agenda has never had much supporting evidence beyond the government’s own platitudes.