Changing circumstances and firearms lethality

[Volokh, Eugene]

	There are important theoretical questions about when a court
should read a constitutional amendment more narrowly because of changed
circumstances (or for that matter about whether the continued acceptance
of the individual right to bear arms in self-defense over two centuries
of state constitutionmaking should affect the analysis).  But I have a
factual question:  Do we have any reason to think that firearms
lethality has indeed increased since 1791, at least with respect to the
guns that were at issue in Heller (handguns)?  

	To be sure, handguns are now higher capacity; but medical care
has also progressed dramatically.  In particular, handgun assault wounds
seem to be fatal these days in 15%-20% of all instances in which someone
is hit.  Do we know what the fatality rate was for comparable firearms
wounds in 1791?  It's far from clear that it was materially lower.  (Of
course, if one wants to use as a denominator firearms assaults, which
would require us to consider the fraction of the time that someone is
actually hit, that's fine, too -- it's just that this would be even
harder to calculate.)

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Rosenthal, Lawrence
> Sent: Saturday, April 18, 2009 9:50 AM
> To: Calvin Johnson; Raymond Kessler; John Bickers;
conlawprof at lists.ucla.edu;
> firearmsregprof at lists.ucla.edu
> Subject: RE: Mass weapons is the original rationale.
> 
> Professor Johnson's post raises an interesting question about
originalism as an
> interpretive methodology.  Heller is certainly correct that the Second
Amendment
> reflect a policy judgment about the costs and benefits firearms, but
that judgment
> was made at a time at which crime rates were high, police departments
as we
> know them today did not yet exist, most persons lived in rural areas
in which they
> had to depend on themselves for self-defense, threats from unstable
groups were
> often present (hostile Native Americans, bands of unemployed
marauders), and
> firearms were of limited lethality.  Isn't it reasonable to question
whether even the
> dead hands who made that judgment would find it applicable to
contemporary
> urban america, in which police protection is pervasive, firearms are
much more
> lethal, and are often used by criminal gangs to enforce territorial
drug and gang
> monopolies that destabilize (even terrorize) entire communities?
(much more on
> this at http://papers.ssrn.!
>  com/sol3/papers.cfm?abstract_id=1245402)
> 
> I do not mean to suggest that we can just declare the Second Amendment
> obsolete and remove it from the Constitution, but I do wonder whether
an
> argument that a policy judgment made under quite different
circumstances in 1791
> should remain binding today without doing a good deal of what Larry
Lessig called
> "translation" so that it is not seriously distorted when applied in
contemporary
> circumstances.  Heller itself said we had to "translate" so that the
Second
> Amendment was applicable to more than just 1791-vintage firearms, but
if we
> perform that act of translation, don't we need others as well if we
are not to distort
> the original "policy judgment"?
> 
> Larry Rosenthal
> Chapman University School of Law
> 
> ________________________________
> 
> From: conlawprof-bounces at lists.ucla.edu on behalf of Calvin Johnson
> Sent: Fri 4/17/2009 7:51 PM
> To: Raymond Kessler; John Bickers; conlawprof at lists.ucla.edu;
> firearmsregprof at lists.ucla.edu
> Subject: Mass weapons is the original rationale.
> 
> 
> I favor original intent of particular puritfied kind.  Members of the
militia duly
> signed on my hold their flintlocks so as .  The thing that is nice
about flintlocks is
> that before rifling, you could nto hit the broad side of a barn so you
needed a
> whole companyto have shot at doing damage.  the telling rationale is
that the arms
> within the original meaning of duty to bear arms worked only within a
militia and
> did nto function to support individual loonies working alone.
> 
> ________________________________
> 
> From: conlawprof-bounces at lists.ucla.edu on behalf of Raymond Kessler
> Sent: Fri 4/17/2009 5:36 PM
> To: 'John Bickers'; conlawprof at lists.ucla.edu;
firearmsregprof at lists.ucla.edu
> Subject: RE: Types of weapons protected by 2nd Amend.
> 
> 
> 
> Very true, but we have to start somewhere--unless you have a crystal
ball.  I
> noted that this was dicta.  Arguably, nothing is ever a settled
question. The
> Constitution ultimately only means what 5 Justices on the Court say it
means.
> Personally, I don't care what the NRA's position is.  Yes there are
civilian analogs
> of M-16's but, except in rare cases, civilians can buy only
semi-automatics.  Are
> semi-automatic "assault rifles," protected by the 2nd amendment? I
think there are
> enough in circulation to make an argument that they are in common
use.  Do they
> play a large role in violent crime? No.   Is there any good evidence
that the
> temporary ban on them reduced gun violence?   No. Most serious gang
bangers
> have moved up to fully automatics like AK-47's. (I discussed the
Mexican situation
> elsewhere)   My personal opinion, however, is that they are not a good
choice for
> home defense.
> 
> Part of the problem in this country, as you and others note,  is that
nobody trusts
> their ideological opponents.  We have become polarized.  We have
winner-take-all
> and scorched earth politics.  Each side demonizes the other (see DHS
report on
> right-wing extremism).  Too much kulturkampf and not enough rational
policy
> making.  Why don't we call a truce?  The left will stop attacking gun
and private
> property rights if the right will stop attacking gay marriage,
abortion, etc.
> Unfortunately, hypocrisy is rampant with regard to rights. Each side
has its
> favorites and attempts to punish, stigmatize and demonize  its
enemies.  The ball
> is in Obama and Pelosi's court.  Will they introduce new draconian gun
control
> legislation (which IMHO is unnecessary) and enflame the right or try
to build some
> trust and consensus in this country?  If people would bother to
examine the
> research literature, they would see that there is no solid consistent
evidence that
> gun availability has a caus!
>  al relationship with the homicide rate.  There is no consistent solid
evidence that
> any gun control measure has worked.  If that's not what it is about,
what is it
> about? It's primarily about emotion, status politics  and kulturkampf.
> 
> I wish I could continue this debate next week, but my job keeps
getting in the way.
> Please carry on in my absence.
> 
> 
> 
> Ray Kessler
> 
> Prof. of  Criminal Justice
> 
> Sul Ross State Univ.
> 
> 
> 
> 
> 
> From: John Bickers [mailto:bickersj1 at nku.edu]
> Sent: Friday, April 17, 2009 4:28 PM
> To: Raymond Kessler; conlawprof at lists.ucla.edu;
firearmsregprof at lists.ucla.edu
> Subject: RE: Types of weapons protected by 2nd Amend.
> 
> 
> 
> "There seems to be some confusion among the public and some posters as
to the
> types of weapons protected by the 2nd Amend."
> 
> ___________________________________
> 
> 
> 
> But, respectfully, Prof. Kessler, that really isn't a settled
question, is it? You are of
> course correct that Justice Scalia's opinion acknowledges limits, but
it is not at all
> clear (to me, at least) that such language ever binds anyone.  Recall
that in his
> dissent in Grutter, Justice Scalia himself made this very observation:
the Court's
> announcement of a principle does not really tell us where the limits
to that
> principle are.
> 
> 
> 
> As Prof. Volokh pointed out earlier in this thread, many of the
advocates of gun
> rights do not trust their ideological opponents.  The NRA is wary of
even
> seemingly inoffensive government actions because they see in them
merely the
> camel's nose under the tent.  I might be so bold as to point out that
the same
> unease is shared by opponents of gun rights; I have heard some fear
that a right
> to handguns today might lead to a right to automatic weapons tomorrow.
> 
> 
> 
> Indeed (although I am in the camp of neither adversary in this
struggle), I think
> Justice Scalia's mention of an M-16 is at least puzzling.  The
civilian variants of
> that particlur weapon are, I believe, fairly common.  Many on this
list will know
> better than I whether the NRA takes the position, after Heller, that a
reinstatement
> of the "assault weapons ban" is unconstitutional as opposed to merely
a bad policy
> choice.  Such weapons are actually quite effective for the right of
confrontation
> spelled out in Heller, and are significantly easier to bear (for those
of us not the
> Governor of California) than a handgun like a Desert Eagle.
> 
> 
> 
> Heller is no more the end of the legal discussion regarding the Second
> Amendment than Brown was the end of the Equal Protection discussion.
> 
> 
> 
> John Bickers
> 
> Salmon P. Chase College of Law
> 
> Northern Kentucky University
> 
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