Free Speech and Guns

Legal superstar Eugene Volokh on the Bill of Rights in 2010

Eugene Volokh & Ted Balaker from the July 2010 issue

(Page 3 of 4)

Those laws apply even when the conversations are in a public place, even when they’re on a nonconfidential matter, even when one of the people in the conversation is doing the recording, and even when the conversation is with government officials, including police officers. The Massachusetts Supreme Judicial Court rejected a First Amendment challenge to a criminal prosecution in such a case several years ago. I think that’s very bad. I think it’s very important that we be able to gather information this way, especially concerning interactions with police officers but also in other situations, such as when we’re being blackmailed or something along those lines, where the recording could be our only way of clearing ourselves.

The law varies a lot from jurisdiction to jurisdiction. In many states, it’s OK to record a conversation so long as one party agrees. So if you’re talking to someone and you want it recorded, you can record it without getting the other person’s permission. In some states, you need the permission of all the parties when the conversation is confidential communication or private communication, and often the law is not clear about what that means. In a few states, you need the permission of all the parties without any such qualifier.

In those states, if you are recording a conversation with a police officer who is trying to arrest you because you want to prove that it’s a bad arrest, that itself is a crime. I think that’s going way too far. If you’re going to have laws that restrict recording even when one party agrees, and I’m not sure we should have such laws, you need to have some pretty clear exceptions for recording things in which nobody has any legitimate privacy interest. Police officers have no legitimate privacy interests in their conversations with citizens, and in those cases there is a very important interest in gathering information.

reason: We have a series at reason.tv called Nanny of the Month. One month we picked the Alabama Supreme Court for upholding a state ban on selling sex toys. You said we shouldn’t have done that. Why?

Volokh: As I understand it, when you say “nanny,” you mean somebody who is restricting people’s liberty, supposedly for their own good, but without any attention to what they themselves want. I think that it’s right to take to task government officials who act as nannies in this way. It’s the job of legislators to impose only those legal rules that are genuinely necessary to protect individual liberty or some very important social interest.

But that’s not the job of judges. The job of judges is to follow the law and to enforce the law. It’s far from clear to me that the Alabama Constitution and the U.S. Constitution protect the right to have sex toys. One could argue that they should, but it’s perfectly reasonable for a court to say: “Look, there’s nothing in our Constitution that interferes with legislative judgment here. This could be a silly law, it could be an illiberal law, it could be a nanny law, but it’s not our job to act as protectors against the nannies. The protectors against the nannies should be other legislators and the voters. If you don’t like the nannies in the legislature, vote them out. Our job is to strike down only those laws that violate the Constitution, not the laws that we simply think are unreasonable or excessive or too nannyish.”

reason: So by definition, judges can’t be nannies?

Volokh: Judges can be nannies when it comes to creating legal rules. Historically in the Anglo-American legal system, many basic legal rules of contract, of property law, of tort law, even of criminal law, have been created by judges. The earliest restrictions on private sexual contact were actually judge-made rules. Likewise, a lot of tort law rules are judge-made rules. So judges could be nannies if they set up tort law rules that are unduly paternalistic—for example, that protect people so much from ordinary hazards that they drive useful products off the market or interfere with private actions in an excessive way.

But there the judges are themselves making the rules. When somebody is making the rules, you can ask if they’re being a nanny or not. When somebody’s deciding whether somebody else is authorized to make the rules, the question is different. It becomes what the proper role is for the judiciary, as opposed to the legislature, in making these rules.

reason: What are the implications of the 2008 Supreme Court case District of Columbia v. Heller for gun control?

Volokh: The Supreme Court held in D.C. v. Heller that the Second Amendment secures, among other things, an individual right to keep and bear arms, including handguns, in self-defense. But 44 state constitutions have a specifically guaranteed right to keep and bear arms, and at least 40 of them have been interpreted as securing an individual right to keep and bear arms in self-defense. The state courts in those states have applied those provisions, so we have a pretty good idea of what happens in court when there’s no dispute about whether there’s an individual right to keep and bear arms in self-defense.

The courts in those states strike down the most aggressive and restrictive gun control laws and uphold a great many other laws that are seen as mere regulations rather than prohibitions on keeping and bearing arms. That’s been true for almost 200 years, ever since state supreme courts in the early 1800s started upholding bans on concealed carry of guns. Those were the first in a major wave of gun control laws in America.

So what I think will happen, even if the Supreme Court holds in the coming Chicago case that the right to keep and bear arms applies to state and local governments, is that if there’s a total gun ban or total handgun ban, that will be struck down. Possibly some other laws will be overturned as well: maybe total bans on carrying guns, maybe bans on possessing guns in public housing complexes.

But bans on so-called assault weapons, various waiting period laws, licensing and registration laws—I think courts are going to say those are permissible regulations rather than total prohibitions. I think a lot of these laws are pretty foolish. The bans on so-called assault weapons are a classic example—even some of the pro–gun control forces have acknowledged that such laws have virtually no effect on crime because they ban guns based on aesthetic features rather than any practical difference between the banned guns and allowed guns. But generally speaking courts will leave legislatures with a great deal of discretion in enacting those laws so long as they don’t substantially burden the ability to own some useful guns for self-defense purposes.

reason: Does media coverage have a big impact on how people view guns?

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Suki|6.15.10 @ 4:00AM|#

Good morning reason!

The Red Baron pan pizza ad with Hillary Clinton removing her sunglasses is creepy.

|6.15.10 @ 7:10AM|#

"I think even libertarians recognize certain kinds of speech ought to be restrictable—death threats, for example"

Define 'restrictable'.
If you mean being held to account after the fact then yes, to a point. But that is the edge of a very slippery slope.

If you mean prior restraint then hells no.

WTF|6.21.10 @ 1:37PM|#

How do you impose prior restraint on a death threat?

The point is whether a person who makes a legitimate death threat can be prosecuted for his speech.

☼|6.15.10 @ 7:17AM|#

Volokh: I think most Americans support free speech. They just have different visions of what speech should be free.

We have moved beyond mere speech and have begun to make laws regulating Americans' thoughts. Hate-crimes legislation is the most egregious example, but now you are presumed guilty of an offense, or at least suspicious, by the kind of sign you wave at a political rally.

Suki|6.15.10 @ 7:33AM|#

The atmosphere of hate continues. I am shocked that CNN hasn't called them angry white teaparty supporters yet.

Untermensch|6.15.10 @ 8:32AM|#

They won't do that, because everybody knows (and by this I mean that everybody thinks they know) that the Tea Partiers love the military, no matter what else they may dislike. So folks sneaking on base to shoot military folks don't fit their predetermined narrative of the Tea Party. Now if it were a couple of whites trying to sneak into a Nation of Islam compound with guns, the link to the Tea Party would have been made within about 2 milliseconds.

Rich|6.15.10 @ 9:04AM|#

"'rifle-type' weapons"

That's a new expression. To me, anyway.

Suki|6.15.10 @ 9:26AM|#

That is how I heard the Times Square "angry white dude against healthcare" named Mohammed's pistol described.

The pictures from some of the news stories showed AR looking magazines.

Alan Vanneman|6.15.10 @ 7:34AM|#

"It’s not news if a gun is used the way most guns are used, which is somebody breaks into somebody else’s home, the homeowner takes out a shotgun and pumps it, and the burglar hears that familiar sound and runs away."

Does Mr. Volokh have even the slightest shred of data to support that statement? How often does this happen? Ten times a year? Five? I'd say that the way most handguns are used is for target practice and fantasy. Are you talking to me? Are you? Are you talking to me?

☼|6.15.10 @ 7:43AM|#

If a shotgun pumps in the woods and no one is there to hear it, does it still make a sound?

Suki|6.15.10 @ 9:27AM|#

I think AV is trying to out do the Weigel thread from yesterday.

AlmightyJB|6.15.10 @ 7:48AM|#

More then 4 or 5

http://www.guncite.com/gun_control_gcdguse.html

Warty|6.15.10 @ 7:57AM|#

This is even dumber than the normal shit you spew, Vanneman. Shut the fuck up already.

AlmightyJB|6.15.10 @ 8:03AM|#

For an inexpensive membership in the NRA you can get a monthly magazine that documents a small sampling of these stories across the US, of guns being used for self-defense every month. You can be excused for thinking otherwise since as pointed out in this article you'll never see these stories in the media. In Ohio when the CCW laws were passed to allow CCW, the local Columbus Dispatch tried to convince all that Ohio would become the wild west, with high noon gunfights in the streets. Hasn't happened. Now under discussion is loosening the law to allow carry in places that serve alcohol as long as the carrier isn't drinking and also to allow those with a permit to not have to lock up their gun while transporting it in their car. This same paper did a front page story on this last Sunday were they warned (I'm not making this up) about people twirling their guns on their finger while driving down the freeway. They also failed to mention the provision that allowed restaurants and bars to post signs which would prevent permit holders from carrying in their establishments. That's just sad but typical.

|6.15.10 @ 8:55AM|#

[They also failed to mention the provision that allowed restaurants and bars to post signs which would prevent permit holders from carrying in their establishments. That's just sad but typical.]

A minor inconvienence. such signs are meaningless in a legal sense. Unlike smoking in a restaurant, carrying a weapon in one isn't illegal in open carry states. The management could refuse to serve you at their discretion, as they could if you were intoxicated, etc., but they cannot use the power of the state to enforce their ban. Remember WalMart posting the red signs with the pistol enclosed in the cirle with the slash across it? Remember how they changed their "policy" after hearing from gun entheusiasts and instruction from prosecutors that carrying on WalMart property wasn't a crime?

Suki|6.15.10 @ 9:30AM|#

In Virginia and some others, carrying a firearm into a place with the no-guns sign is trespassing. So is failing to leave when asked if you carry open.

Sounds like a crime to me.

T|6.15.10 @ 9:34AM|#

Depends on the state. The proper signage does have an enforceable legal meaning in Texas. I don't know about Ohio law, though.

The Libertarian Guy|6.15.10 @ 10:21AM|#

Did Vanemann say something?

Solanum|6.15.10 @ 8:09AM|#

Amazon customer reviews of "Sherlock Holmes and the Giant Rat of Sumatra"

A laughable attempt to take advantage of the Holmesian's desire for new adventures. Giant Rat indeed...must be a reference to the author. Please..Please...Please..don't waste your money. Fortunately I borrowed a copy from the Library. After two chapters I started skimming and finally threw the book aside in disgust.

Solanum|6.15.10 @ 8:11AM|#

I have read many, many books on Sherlock Holmes by many varied authors, but never have I read a book that was so convoluted and confusing. I finished it, but still can't quite put into words exactly what the story was about. The story line was so unbelievable that it left me angry that I wasted my time on this book. It lacked suspense, instead it went for the absurd story line. I will be interested to see what other Sherlock Holmes fans think of this book.

WTF|6.21.10 @ 1:45PM|#

It seems evident that A. Vanneman has not done any research whatsoever.

First, it doesn't take much effort to do a little searching on the Internet to find many, many stories every day of law-abiding citizens using legally-owned guns in legitimate self-defense. There are entire web sites devoted to compiling such stories. The unfortunately reality is that they tend to not be as exciting as drug gangs having shootouts in the street with cops, so the MSM generally doesn't pick them up.

Second, a lot of these incidents never are reported to "the authorities" anyhow - e.g., guy is walking out of the bowling alley at midnight closing time; as he's walking to his car, a couple thugs start walking towards him, yelling things and making threats. He pulls and brandishes a firearm and informs them they had best leave him the fuck alone. They take off. End of story. The dude goes home. Even if he reported it, the police aren't going to do squat about it, much less would they be able to.

Third, there have been many studies done on the defensive use of firearms in the U.S., compared to their criminal, offensive, use.

Depending on whose numbers you choose to believe, firearms are used defensively somewhere between about 350,000 and 2.5 million times per year in the U.S. Keep in mind that there are an estimated 200 million or so firearms in private ownership in the U.S.

A study done by the Dept. of Justice (if I'm recalling correctly) under the Clinton administration essentially concluded that firearms were used defensively about eight times more than they were used criminally during the time period the study examined.

In short, suck it, Mr. Vanneman.

MJ|6.15.10 @ 7:43AM|#

"...it’s perfectly reasonable for a court to say: “Look, there’s nothing in our Constitution that interferes with legislative judgment here. This could be a silly law, it could be an illiberal law, it could be a nanny law, but it’s not our job to act as protectors against the nannies. The protectors against the nannies should be other legislators and the voters. If you don’t like the nannies in the legislature, vote them out. Our job is to strike down only those laws that violate the Constitution, not the laws that we simply think are unreasonable or excessive or too nannyish.”

That's as good an explanation for what it means to NOT be a judicial activist as any.

Kolohe|6.15.10 @ 8:15AM|#

Yes, I agree. This was well said by Volokh.

|6.15.10 @ 4:02PM|#

Gotta disagree here. Judicial activism is making law from the bench, not nullifying an unconstitutional law. The first is positive in nature and the second negative. The US constitution specifically mentions this power "The judicial Power shall extend to all Cases, in Law", this is judicial review.
Judges and juries are supposed to determine not just whether someone is guilty of violating an existing law, but also if that law is in itself what the people see as needed to protect their person and property.
Judicial activism, rather than ensuring that those properly elected to make the laws assumes unto itself this power and thus bypasses the people.
Judicial review is a check against the government using it's power to violate the rights of the people, and against the majority oppressing the minority.
Clearly anyone using the power of the government's essential monopoly of force and the accompanying strength of it's large organization and perceived legitimacy to compel private behavior which does no harm to person or property violates the US constitution's 9th amendment and the Alabama constitution's like section 36, along with section 35.
I will agree that technically it was the legislature and not the court doing the nannying, but is the one supporting nannying any less the nanny?

|6.16.10 @ 2:14PM|#

"judicial activism" are decisions one doesn't agree with.

Warty|6.15.10 @ 8:09AM|#

In the United States one of the biggest exercises in false consciousness the world has ever seen – people gathering in their millions to lobby unwittingly for a smaller share of the nation's wealth – has become the playmaker in Republican primaries.

Warty|6.15.10 @ 8:13AM|#

It strikes me that in the US the greater opportunities lie not in confronting the Tea Party movement but in turning it. As its mixed responses to Sarah Palin and Ron Paul show, it remains fluid and volatile. There's an opening here for trade unionists to move in and agree that an elite is indeed depriving working people of their rights, but it is not an intellectual elite or a cultural elite or a liberal elite: it is an economic elite.

I do enjoy a little English foofery with my Marxism in the morning.

Kiwi Dave|6.15.10 @ 10:22AM|#

Dude, it's Moonbat himself, what do you expect?

|6.15.10 @ 9:46AM|#

"false consciousness" a giveway expression that tells you everything you need to know about the person that uses it seriously.

Most of us dont' want to rob anyone. If my neighbor has a bigger house than me, I don't want the government to take his house and give it to me, or his car or his bank account. This is the feeling that liberals don't understand and regard as stupid.

When the majority of the population are the kind that think the nation's wealth should be given to them because they deserve it, we will all be poor.

First I'll demand that the supermarket give me free food. Maybe I'll just demand that prices be reduced by 50%. Then I eat all the food. Now I need more food. I go to the supermarket. It's empty. How did that happen?

I want a house. I'll get Congress to give me this guy's house. Now its mine. But I can't fix the house or pay anyone else to fix it. So I need the guy's bank account too. But then the money runs out. I can't make more money. What do I do now? The house is falling down around me.

I want Congress to pass a law that my employer must pay me an income of $75 K a year. Next day, my employer is gone. The money better come from somewhere.

mr simple|6.15.10 @ 8:19AM|#

My sense is also that people who use guns in movies use them much more successfully than guns are actually used in real life. The fact is that, especially under combat conditions, it is very hard to hit somebody the first time around.

So you're saying the A-Team tv series was more realistic than I originally thought.

AlmightyJB|6.15.10 @ 8:38AM|#

You are correct

http://www.nytimes.com/2007/12/09/weekinreview/09baker.html

|6.15.10 @ 10:42AM|#

Front sight, surprise trigger break.

AlmightyJB|6.15.10 @ 2:03PM|#

I'm with ya

Michael Ejercito|6.15.10 @ 1:08PM|#

Well, in the TV show they were trying to avoid being wanted for murder or other unlawful homicide. It was bad enough that the Army CID was going after them for bank robbery and desertion.

Barry Loberfeld|6.15.10 @ 9:11AM|#

From here:

The conservative who proclaims himself "pro-Second Amendment" elicits only the same response as a self-designated "pro-Second Commandment Christian": What about the other nine? Can the conservative who mocks others as "hiding behind" the First (or Fourth or whichever) Amendment himself find refuge from the gun prohibitionists in the Second? Does he imagine he can level the Bill of Rights but leave the Second Amendment standing? How can one who repudiates the importance of the other amendments then justify the importance of the Second, whose raison d’être is the defense of those amendments? The answer: He is utterly oblivious to his own incoherence and hypocrisy. Thus, Ann Coulter fumes that if liberal judges "interpreted the Second Amendment the way they interpret the First Amendment, we'd have a right to bear nuclear arms by now." And what exactly does that deserve -- other than a rim shot? This: If conservatives "interpreted the Second Amendment the way they interpret the First Amendment," even the National Guard wouldn't have guns.

Steve Smith|6.15.10 @ 3:00PM|#

"Legal Superstar"?!? Insty's a blogging superstar, or at least was awhile back, but it's not like he's considered within the legal community to be an important legal thinker. Even among legal conservatives, he's considered to be much closer to an Andrew Napolitano or a Nancy Grace than an Alex Kozinski or Richard Posner.

Steven Smith|6.15.10 @ 4:16PM|#

STEVEN SORRY FOR CONFUSE VOLOKH WITH GLENN REYNOLDS. STEVEN PET CHUPACABRA RECENT PASS AWAY, SO STEVEN BEEN DISTRACTED AND SAD. STEVEN REGRET ERROR.

LarryA|6.15.10 @ 5:47PM|#

Whether or not they do, it is quite clear that despite all the hopes of the gun control movement that coverage of mass shooting incidents would lead to a groundswell of support for gun control, it hasn’t happened.

Probably because people started noticing that almost all the active shootings were occurring in “gun-free” zones, and the few that occurred where concealed carry was legal usually ended as soon as the shooter encountered a licensee.

Despite these high-profile incidents, support for gun control has declined rather than increased.

I’d say “because of.” The Virginia Tech shooting was the inspiration for Students for Concealed Carry on Campus. The New Life Church incident got a lot of pastors thinking about “what if.”

Meanwhile, according to NextMark’s Mailing List Finder, the “Brady Campaign to Prevent Gun Violence Donors/Members Mailing List” is for sale, and the membership of the organization is down to 50,581.

RyanXXX|6.15.10 @ 10:34PM|#

Interesting of how there's no mention of King Obama's decree that he may kill American citizens with no trial, warrant, or due process of any kind (as long as they have a funny-sounding Arab name).

|6.16.10 @ 2:18PM|#

ryan makes it sound like obama's picking names outta the phone book.

|6.16.10 @ 7:59PM|#

No offense, but why do do we tend to relay on Russian ex-patriots to describe free speech in America? Couldn't it be easier to suggest that the matter is under continual discussion? I think so.

WTF|6.21.10 @ 1:51PM|#

Look, there’s nothing in our Constitution that interferes with legislative judgment here. This could be a silly law, it could be an illiberal law, it could be a nanny law, but it’s not our job to act as protectors against the nannies. The protectors against the nannies should be other legislators and the voters. If you don’t like the nannies in the legislature, vote them out. Our job is to strike down only those laws that violate the Constitution, not the laws that we simply think are unreasonable or excessive or too nannyish.

Which basically was Justice Stewart's dissent in Griswold v. Connecticut, and to an extent, Black's also. And we see how far that got.

Of course, it is interesting to see how that argument is applied, depending on what the issue is and whose ox is being gored.

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|6.23.10 @ 10:54PM|#

> Since 1994 he has taught law at UCLA.

ULCA is an anagram for ACLU

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