Geo. Mason Univ. symposium
GMU had its symposium on Saturday, which they said they hoped would be the first but not the only such conference. I was a bit groggy, since I was jet-lagged three hours, the catering service had failed, and hence there was no coffee. I'll just list what I remember as major points:
Steve Halbrook discussed the Seegers case, challenging the DC gun law, and which was dismissed on claims the plaintiffs had no standing. DC Circuit affirmed, altho four judges (including a fellow named John Roberts) voted for rehearing en banc. He's either filed or will file a petition for cert. (I forget now which). Standing claim will include the theory that I've blogged earlier, a modification of aesthetic standing used in enviro cases.
Joyce Malcolm discussed the loss of the right to self-defense in Britain. The case of Tony Martin was of course a topic -- he's a farmer who, after being burglarized six times with no results from the police, shot two burglars coming up the stairs of his home. He was sentenced to life for killing one and ten years for killing the other. The surviving burglar got, I think, three years, and is now suing him (with the gov't helping to pay the burglar's attorney). The BBC has a website on self defense which counsels that if you bump into a burglar in the dark and hit him with a crowbar (about the best tool you're allowed to have) once, you can argue to the jury (note the assumption you will be tried for it) that you used excessive force (note the assumption there) in a panic, and they might let you off. But do not, repeat not, hit him a second time, or you're surely sunk.
As the British statutes prohibit carrying *anything* with the purpose of self-defense, you can be convicted of an arms law violation for carrying a walking stick (if not obviously needed for walking), etc, and people have been so charged.
British TV had a poll on what law the people most want enacted, and a member of Parliament had pledged to introduce whatever won. The clear winner was a bill to allow use of any force not grossly disproportionate, in defense of one's home. The MP refused, saying this was appalling.
She noted the effect: British crime is skyrocketing, and you are now six times more likely to be mugged in London as in NY City.
Randy Barnett had some interesting thoughts. If the RTKBA were recognized as a constitutional right, it would still be subject to some regulation. Probably most would be reviewed under "strict scrutiny," where the gov't must prove the law serves a compelling gov't interest, and is narrowly tailored to serve that interest without fall-out in other areas of the right involved. The fact that gun control advocates fight against application of this standard suggests to him that in fact they do not ultimately want reasonable regulation, or only laws that serve a compelling interest and are tailored to do that. He added that most federal regs now would probably pass that test -- but only because gun owners, thru the political process, have protected their rights in most cases. He noted that an activity really can't be outlawed, or tightly regulated, if it is widespread, due to political opposition. Attempts to restrict smoking by law only came about after most Americans stopped smoking. Thus we have the paradox that government can only act against a perceived "problem" if it is a small one!
Speaking for "the other side" was Saul Cornell. Unfortunately, he spoke on the first panel, when our problems with caffeine deprivation were worst. I do recall he argued a theory which was a variation on collective right, namely it is an individual right to serve the state in a militia. (The same as collective right in terms of result, but called an individual right. I guess this means that everyone has a right to serve in the Nat'l Guard whether the Guard wants them or not. Maybe we could get a gay triple amputee, 65 yrs old, to try to enlist and test it). He cited the 1776 Penn. Declaration of Rights, which referred to a right to bear arms for defense of themselves and the state, pointed out that the Pa Const. referred to bear arms in the militiary sense (conscientious objectors can be exempted from bearing arms). Where this gets us on "keep" arms may be another question.
UPDATE: Saul Cornell just emailed me the following:
Sorry we did not get a chance to chat more at the conference. I think it is important to note that the keep and bear formulation only emerges after Pennsylvania. While some read keep and bear as keep and/or bear I read it as keep and bear those arms necessary to meet the legal obligation to serve in the militia. If we recreate an 18th century style militia then that might well mean everyone gets an M-16-like weapon. This would be one obvious difference between a civic conception and the modern collective rights view. I also think the civic conception makes domestic disarmament less likely since it is harder to imagine how you could have an 18th century style militia if you had a British style policy regarding firearms. Clearly there was broad agreement among Americans that British style game laws were not consistent with the American conception of the right to keep and bear arms. [DTH note: the British Game Act of 1671, repealed in relevant part after the 1688 Declaration of Rights, forbade anyone with less than a certain value of property to own a gun].