Digital Commons Network^™

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel

David B Kopel

The Second Amendment protects the operation of businesses which provide Second Amendment services, including gun stores. Although lower federal courts have split on the issue, the right of firearms commerce is demonstrated by the original history of the Second Amendment, confirmed by the Supreme Court in District of Columbia v. Heller, and consistent with the Court's precedents on other individual rights.

The History Of Firearm Magazines And Magazine Prohibitions, David B. Kopel

David B Kopel

In recent years, the prohibition of firearms magazines has become an important topic of law and policy debate. This Article details the history of magazines and of magazine prohibition.

Because ten rounds is an oft-proposed figure for magazine bans, Part I of the Article provides the story of such magazines from the earliest sixteenth century onward. Although some people think that multi-shot guns did not appear until Samuel Colt invented the revolver in the 1830s, multi-shot guns predate Col. Colt by over two centuries.

Especially because the Supreme Court’s decision in District of Columbia v. Heller considers whether arms are …

The First Amendment Guide To The Second Amendment, David B. Kopel

David B Kopel

How courts do and should use First Amendment doctrines when deciding Second Amendment cases.

Knives And The Second Amendment, David B. Kopel, Claytom E. Cramer, Joseph P. Olson

David B Kopel

This Article is the first scholarly analysis of knives and the Second Amendment. Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.

There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.

Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., …

Mexico's Gun Control Laws: A Model For The United States?, David B. Kopel

David B Kopel

This article explicates Mexico’s constitutional right to arms and Mexico’s main gun-control statute, the Federal Law of Firearms and Explosives (Ley Federal de Armas de Fuego y Explosivos). Along the way, the article notes various proposals to move U.S. gun laws in a Mexican direction.

Part II of this article is an English translation of the Mexican constitution’s guarantee of the right to arms, as well as predecessor versions of the guarantee.

Part III explains the operation of Mexico’s gun-control system and provides some historical and statistical information about gun ownership and gun smuggling in Mexico.

Part IV describes some …

The Great Gun Control War Of The Twentieth Century--And Its Lessons For Gun Laws Today, David B. Kopel

David B Kopel

A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association began to get involved in politics, and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the 20th century, and into the 21st.

Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, …

The Right To Arms In The Living Constitution, David B. Kopel

David B Kopel

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect …

Human Rights And Gun Confiscation, David B. Kopel

David B Kopel

This Article addresses a human rights problem which has been generally ignored by the advocates of firearms confiscation: the human rights abuses stemming from the enforcement of coercive disarmament laws.

Part I conducts a case study of the U.N.-supported gun confiscation program in Uganda, a program which has directly caused massive, and fatal, violations of human rights. Among the rights violated have been those enumerated in Article 3 (“the right to life, liberty and security of person” ) and Article 5 (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”) of the Universal …

The Human Right Of Self-Defense, David B. Kopel, Paul Gallant, Joanne D. Eisen

David B Kopel

The United Nations Human Rights Council has declared that there is no human right to self-defense. Moreover, the Council has ordered all governments to enact very restrictive gun laws (more severe than those of Washington, D.C., or New York City, for example), and has declared that failure to enact such laws constitutes a human rights violation. Further, the HRC states that it is a human rights violation for a government to allow person to use a firearm in self-defense against a rapist or other criminal who is not attempting homicide.

This Article critically examines the HRC's claims by analyzing the …

The Catholic Second Amendment, David B. Kopel

David B Kopel

At the beginning of the second millennium, there was no separation of church and state, and kings ruled the church. Tyrannicide was considered sinful. By the end of the thirteenth century, however, everything had changed. The Little Renaissance that began in the eleventh century led to a revolution in political and moral philosophy, so that using force to overthrow a tyrannical government became a positive moral duty. The intellectual revolution was an essential step in the evolution of Western political philosophy that eventually led to the American Revolution.

The Religious Roots Of The American Revolution And The Right To Keep And Bear Arms, David B. Kopel

David B Kopel

This article examines the religious background of the American Revolution. The article details how the particular religious beliefs of the American colonists developed so that the American people eventually came to believe that overthrowing King George and Parliament was a sacred obligation. The religious attitudes which impelled the Americans to armed revolution are an essential component of the American ideology of the right to keep and bear arms.

The Evolving Police Power: Some Observations For A New Century, David B. Kopel, Glenn Harlan Reynolds

David B Kopel

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.

All The Way Down The Slippery Slope: Gun Prohibition In England And Some Lessons For Civil Liberties In America, David B. Kopel, Joseph Olson

David B Kopel

Whenever civil liberties issues are contested, proponents of greater restrictions often chide civil liberties defenders for being unwilling to offer moderate concessions. Frequently, persons advocating restrictions on civil liberties claim that the "moderate" restriction will not infringe the core civil liberty. When rights advocates raise the "slippery slope" argument, they are criticized for being excessively fearful. The goal of the article is to refine our understanding of "slippery slopes" by examining a case in which a civil liberty really did slide all the way down the slippery slope.

The right to arms in Great Britain was entirely unrestricted at the …

Clueless: The Misuse Of Batf Firearms Tracing Data, David B. Kopel

David B Kopel

Sometimes the Bureau of Alcohol, Tobacco and Firearms traces the registered sales history of a gun which was used in a crime, or which has been seized by the police. Traced guns are not representative of the broader universe of crime guns. Accordingly, drawing public policy conclusions based on tracing data is unwise.

Taking Federalism Seriously: Lopez And The Partial-Birth Abortion Ban, David B. Kopel, Glenn Harlan Reynolds

David B Kopel

In United States v. Lopez, the United States Supreme Court struck down the federal Gun Free School Zones law as not within congressional power to regulate interstate commerce. This article examines post-Lopez jurisprudence regarding the permissible scope of federal criminal law. Analyzing a wide variety of federal criminal laws challenged in post-Lopez cases (including arson, robbery, gun possession, drugs, violence against women, and abortion clinic disruption), the article shows how courts have followed or evaded Lopez. Studying the proposed federal ban on partial birth abortions, the article suggests that the ban is not a lawful exercise of Congress' interstate commerce …

Preventing A Reign Of Terror: Civil Liberties Implications Of Terrorism Legislation, David B. Kopel, Joseph Olson

David B Kopel

Domestic terrorism is not a reason to abrogate constitutional rights, argues this 101-page paper, which discusses the 1996 omnibus federal terrorism bill, and other terror proposals. Topics include: scope of the terrorism problem; Britain's mistaken response to terror; use of the military in law enforcement; the Internet; militias; wiretapping; the FBI; and federalizing local crime.