Binder-2019 NRA Convention Package

The 22nd Annual National Firearms
Law Seminar
Indianapolis, Indiana
April 26, 2019
Perceiving and Measuring Judicial Defiance of Heller
A Survey of Current Second Amendment Litigation
Never Run Away – From Your Ethics
State Constitutional Arms Provisions
Gun Culture 2.0, or How a Liberal Professor Became an Armed
American
FBI NICS Checks and Appeals
Gun Rights and the Veterans Administration
Firearms Forensics in the Courtroom
Making and Gunsmithing Firearms
Shooting Ranges and the Noise and Environmental Issues They Face
22nd Annual National Firearms Law Seminar
Friday, April 26, 2019
Location: Hyatt Regency Indianapolis
8:00 - 8:20 Registration and Continental Breakfast
8:20 - 8:30 Welcoming Remarks
CAROL FRAMPTON
Law Seminar Steering Committee Chair

Board Member, National Rifle Association of America
Chief of Legal Services for the National Wild Turkey Federation
8:30 – 10:10 SESSION 1
Professor George Mocsary

Southern Illinois University School of Law
A Survey of Current Second Amendment Litigation - including the new U.S.

Supreme Court Case, NYSRPA v. City of New York
David Thompson
Managing Partner, Cooper & Kirk, PLLC
10:10 – 10:20 Networking Break
10:20 – 11:20 SESSION 2 - LEGAL ETHICS
Never Run Away - From Your Ethics
Justice Steven David

Indiana Supreme Court
11:20 – 12:00 SESSION 3
Another Arrow in the Quiver: State Constitutions as Independent Guarantors of

the Right to Keep and Bear Arms
Sarah Gervase
NRA Assistant General Counsel
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______________________________________________________________________________
12:00 – 1:00 SPECIAL LUNCH PRESENTATION
Gun Culture 2.0, or How a Liberal Professor Became an Armed American
Professor David Yamane

Wake Forest University, Department of Sociology
1:00 – 2:45 SESSION 4
Updates on FBI NICS Checks and Appeals
Derek DeBrosse
Partner, Cheshire DeBrosse, P.C./Munitions Law Group
A Primer: Gun Rights and the Veterans Administration
Eliot Peace
Associate, Bradley Arant Boult Cummings LLP

____________
3:00 - 4:40 SESSION 5
Dwight D. Van Horn

Independent Forensic Firearms Examiner, NRA Board Member
Making and Gunsmithing Firearms: Unlicensed Activities, “80% Receivers,” and

3D Printing
Stephen P. Halbrook, Ph.D.

Attorney at Law, Author

_ ______
4:50 - 5:30 SESSION 6
Michael Jean
NRA – ILA Associate Litigation Counsel
____________
5:30 - 7:00 MEET & GREET: POST-COURSE COCKTAIL RECEPTION
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2019 Speaker Biographies
MODERATOR
Carol Frampton. Carol is an NRA Board Member serving several Board committees, including
Legal Affairs and as Chair of the Bylaws and Resolutions Committee and Vice Chair of the
Women’s Policies Committee. She is Chair of the Annual National Firearms Law Seminar
Committee and a Trustee and Vice Chair of the NRA Civil Rights Defense Fund.
Carol is Chief of Legal Services for the National Wild Turkey Federation in Edgefield,
South Carolina. She was former General Counsel to the Association of Fish & Wildlife Agencies
in Washington, DC, pro bono counsel to the Council to Advance Hunting and Shooting Sports,
former counsel for the Michigan United Conservation Clubs (representing 470+ conservation
gun clubs), and former Chief of Legal Services and Legislative Director to the Michigan
Department of Natural Resources.
Carol teaches Wildlife Law and Energy Law and Wildlife at Michigan State University
College of Law in East Lansing, Michigan. She is a member of Safari Club International and the
Boone and Crockett Club. She was the 2017 winner of National Wild Turkey Federation’s Lynn
Boykin Hunting Award and the NRA’s Sybil Ludington Freedom Award. Carol loves to hunt, fish,
and shoot.
SECTION 1
1. Professor George Mocsary. Before joining the faculty of the Southern Illinois University
School of Law as an Assistant Professor, George A. Mocsary spent two years as a Visiting
Assistant Professor at the University of Connecticut School of Law. He entered academia after
having practiced corporate and bankruptcy law at Cravath, Swaine and Moore in New York.
Before that, he clerked for the Honorable Harris L. Hartz of the U.S. Court of Appeals for the
Tenth Circuit.
Professor Mocsary holds a J.D. from Fordham Law School where he graduated first in his
class and summa cum laude. He also served as Notes and Articles Editor of the Fordham Law
Review, and was the recipient of the Benjamin Finkel Prize for Excellence in Bankruptcy and
Fordham Law Alumni Association Medal in Constitutional Law. Before going to law school,
Professor Mocsary earned his M.B.A. from the University of Rochester Simon School of Business
and ran a successful management consulting practice. His consulting clients ranged from the
Office of the Mayor of the City of New York, to JPMorgan Chase, to the private bank Pictet and
Cie in Geneva, Switzerland. Professor Mocsary also holds a B.E. from the Cooper Union Albert
Nerken School of Engineering.
Professor Mocsary is a co-author of Firearms Law and the Second Amendment:

Regulation, Rights, and Policy (Aspen Publishers, 2012), the first casebook on its topic. He has
1
also published in the George Washington Law Review, George Mason Law Review, Fordham
Law Review, and other journals. His work has been cited by the Supreme Court of the United
States.
Professor Mocsary also teaches a Senior Writing Seminar on Firearms Law and the
Second Amendment at the SIU School of Law.
Professor Mocsary’s work on the Second Amendment includes:
LAW JOURNAL ARTICLES
• A Close Reading of an Excellent Distant Reading of Heller in the Courts, 68 DUKE L.J. ONLINE
41 (2018).
• Guns, Bird Feathers, and Overcriminalization: Why Courts Should Take the Second Amendment
Seriously, 14 GEO. J. L. & PUB. POL’Y 17 (2016) (with Robert J. Cottrol)
- cited in Kolbe v. Hogan, 849 F.3d 114, 154 (4th Cir. 2017) (Traxler, J., dissenting).
• Insuring Against Guns?, 46 CONN. L. REV. 1209 (2014) (lead symposium article).
• “This Right Is Not Allowed by Governments That Are Afraid of the People”: The Public Meaning
of the Second Amendment When the Fourteenth Amendment Was Ratified, 17 GEO. MASON L.
REV. 823 (2010) (with Clayton E. Cramer & Nicholas J. Johnson).
- cited in McDonald v. Chicago, 561 U.S. 742, 773 n.21, 776 n.25, 780 (2010).
- cited in Ezell v. City of Chicago, 651 F.3d 684, 702 n.11 (7th Cir. 2011).
• Note, Explaining Away the Obvious: The Infeasibility of Characterizing the Second Amendment
as a Nonindividual Right, 76 FORDHAM L. REV. 2113 (2008).
BOOKS AND SUPPLEMENTS
• FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION, RIGHTS, AND POLICY (2d ed.
2017) (with Nicholas J. Johnson, David B. Kopel & Michael P. O’Shea).
- cited in Illinois v. Chairez, 2018 IL 121417, at 7 n.3 (Ill. Feb. 1, 2018).
• 2015 SUPPLEMENT FOR FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION,
RIGHTS, AND POLICY (2015) (with Nicholas J. Johnson, David B. Kopel & Michael P. O’Shea).
• FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION, RIGHTS, AND POLICY online
chs. 12-15 (2014) (with Nicholas J. Johnson, David B. Kopel & Michael P. O’Shea).
• FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION, RIGHTS, AND POLICY (2012)
(with Nicholas J. Johnson, David B. Kopel & Michael P. O’Shea) (first casebook on firearms law).
- cited in Drake v. Filko, 724 F.3d 426, 441 n.3, 441 n.5, 442 (3d Cir. 2013) (Hardiman, J.,
dissenting).
- cited in Heller v. District of Columbia, 670 F.3d 1244, 1287 (D.C. Cir. 2011) (Kavanaugh,
J., dissenting).
OTHER ARTICLES
• States have a constitutional duty to recognize gun rights nationwide, THE HILL (Dec. 27, 2017),
http://thehill.com/opinion/i nternational/366599-states-have-a-constitutional-duty-to-
recognize-gun-rights-nationwide (with Rafael Mangual).
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• Defying the Supreme Court in Kolbe v. Hogan, LIBR. L. & LIBERTY (Dec. 20, 2017),
http://www.libertylawsite.org/2017/12/20/defying-the-supreme-court-in-kolbe-v-hogan/.
• Are There Guns in Mayberry?, LIBR. L. & LIBERTY (Oct. 17, 2016),
http://www.libertylawsite.org/book-review/arethere-guns-in-mayberry/ (reviewing JENNIFER
CARLSON, CITIZEN-PROTECTORS: THE EVERYDAY POLITICS OF GUNS IN AN AGE OF DECLINE
(2015)).
• Monopoly of Violence, CLAREMONT REV. OF BOOKS, Summer 2010, at 46 (reviewing ROBERT
H. CHURCHILL, TO SHAKE THEIR GUNS IN THE TYRANT’S FACE (2008)).
2. David Thompson is the Managing Partner of Cooper & Kirk and joined the firm at its
founding. Mr. Thompson has extensive trial and appellate experience in a wide range of matters
and has secured victories worth billions of dollars. Mr. Thompson was awarded an A.B. degree,
magna cum laude, from Harvard University in 1991, where he was elected to Phi Beta Kappa. In
1994, Mr. Thompson received a J.D. degree, cum laude, from Harvard Law School.
Mr. Thompson represents the National Rifle Association and individuals in cases around
the country implicating the right to keep and bear arms. He has litigated cases in the United
States Supreme Court, as well as the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth,
Tenth, and Eleventh and DC Circuits and related district courts, as well as numerous state
courts. He successfully challenged both Illinois’ and DC’s ban on the carriage of firearms. Mr.
Thompson also successfully challenged Chicago’s ban on the sale of firearms. He also
represents gunowners in several states in challenges to bans based on magazine capacity and
features of modern sports rifles.
Mr. Thompson also has extensive experience in other areas of constitutional litigation.
Mr. Thompson has litigated numerous cases involving the freedom of speech, civil rights, voting
rights, takings of property, due process, and separation of powers issues. He also has an active
commercial litigation practice.
Mr. Thompson has also served as an adjunct faculty member at Georgetown University
Law Center and a visiting professor at the University of Georgia Law School’s DC campus. The
class he taught most recently is Lawyering in Public, a course focusing on how to litigate high
profile cases. He is also a frequent speaker on trial tactics and has served as an expert witness.
Several major law firms have hired Mr. Thompson to represent their firms.
SECTION 2 – LEGAL ETHICS
Justice Steven David was appointed to the Indiana Supreme Court in 2010. He now
serves as the senior member of the Court. Prior to being named the 106th Justice of the Indiana
Supreme Court, Justice David built a multi-faceted career of private practice, corporate counsel
experience, and stellar service as a military lawyer.
3
Justice David’s 35 years of public service includes 16 years as a trial court judge in Boone
County and 28 years of military service. As Circuit Court Judge, Justice David presided over civil,
criminal, family and juvenile matters. He was the recipient of the coveted Robert Kinsey Award,
awarded to the most outstanding Juvenile Court Judge in Indiana. He served in the United
States Army Judge Advocate General’s Corps, earning the rank of Colonel and holding a Top
Secret SCI security clearance. His service included active and reserve time and two post 9-11
mobilizations, including service in Iraq and Guantanamo Bay Cuba. His dedication to the
military, pro bono services, and the rule of law earned him a number of military and citizen
awards, including the Defense Superior Service Award, the nation’s third highest non-combat
medal.
Justice David is currently an adjunct professor at IU McKinney School of Law and is a

frequent public speaker. In his spare time, he enjoys golfing and participating in triathlons,
marathons, and IRONMAN events. His personal motto is: “WORK HARD, DO GOOD, BE PROUD,
HAVE FUN, and D0 WHAT’S RIGHT.”
SECTION 3
Sarah Gervase has been Assistant General Counsel at the National Rifle Association
since 2006. Gervase advises the NRA and NRA Foundation in a variety of fields, including law
enforcement issues, cyber law and security, trusts and estates, and contracts. Gervase also
drafted the women‘s amicus briefs on behalf of women state legislators in the D.C. v. Heller and
McDonald v. Chicago U.S. Supreme Court cases. Justice Alito cited and quoted her brief in the
McDonald plurality opinion.
Sarah also teaches self-defense at NRA training courses and writes articles for the NRA
Law Enforcement Division’s quarterly newsletter. She was one of two 2012 recipients of the
NRA Executive Vice President’s Excellence Award.
Sarah is a graduate of Harvard, where she was a Harvard College Scholar, and Notre
Dame Law School. She holds a Certificate in Cybersecurity Strategy from Georgetown and is a
Certified Information Privacy Professional CIPP-US, CIPT, and CIPM. Sarah is the proud sister of
Ron Gervase of Gervase Gunsmithing in Arlington, Texas and a Chief of Police in North Carolina.
She enjoys reading, shooting, classical architecture, hiking, cats, and American history. She is a
Patron Life Member of the NRA and a Member of the National Civic Art Society.
LUNCH
David Yamane is Professor of Sociology at Wake Forest University in Winston-Salem,

North Carolina. For the first 20 years of his academic career, he specialized in the sociology of
religion, a field in which he authored, co-authored, or edited 6 books and edited two major
scholarly journals. In a departure from his previous work, Yamane became a student of guns in
2011. He is particularly interested in the new self-defense oriented core of American gun
4
culture that Michael Bane calls "Gun Culture 2.0." His review essay on "The Sociology of US Gun
Culture" is available as a free download at
http://onlinelibrary.wiley.com/doi/10.1111/soc4.12497/full, and he blogs at
https://gunculture2point0.wordpress.com/.
SECTION 4
1. Derek DeBrosse. Derek Andrew DeBrosse is a licensed Ohio attorney with a firearms
legal practice emphasizing in Gun Rights Restoration. Derek began his law practice immediately
after law school in 2008 when he graduated from Regent University School of Law. Derek also
holds a B.A. from The Ohio State University. While Derek’s passion and primary focus is on
rights restoration, his office also offers variety of other firearm-related legal services from NFA
issues to FFL representation. Derek has represented individual, corporate, and grassroots
organizational firearm clients in both Federal and State court.
Before entering law school, Derek served a combat tour of duty with the 1487th
Transportation Company in support of Operation Iraqi Freedom. Derek has received various
military accolades, including the Combat Action Badge, Army Commendation Medal, and Iraq
Campaign Medal. Mr. DeBrosse is licensed to practice in the U.S. Army Court of Criminal
Appeals, U.S. Navy-Marine Corps Court of Criminal Appeals, U.S. Air Force Court of Criminal
Appeals, and the U.S. Court of Appeals for the Armed Forces.
Mr. DeBrosse is a NRA Benefactor Life Member, NRA Golden Eagle Member, NRA
Firearms Instructor, GLOCK Advanced Armorer, and is a member of various other pro-Second
Amendment organizations. In his free time, Derek enjoys tactical firearms training, backpacking,
scuba diving, white water rafting, and anything outdoor-related.
Professionally, Derek also serves as General Counsel of Ohioans for Concealed Carry,
Judge Advocate for the Ohio Combat Infantryman’s Association, and as a Special Assistant
Prosecuting Attorney for the Village of Hartford, Ohio.
2. Eliot Peace. An associate in Bradley Arant’s Tampa office, Eliot Peace is a member of
the Litigation Practice Group. An experienced litigator, he represents business and commercial
clients in complex litigation—across a variety of industries—in state and federal courts across
the country.
He also works with clients facing governmental investigations and litigations, dealing
with whistleblower allegations and qui tam actions. He helps clients navigate compliance and
potential liability under the False Claims Act, Anti-Kickback Statute and other areas of
healthcare fraud and abuse, government contractor fraud and abuse, and white collar criminal
law. He also regularly advises clients on federal and state campaign finance, election, and ethics
law.
5
Prior to joining Bradley, Eliot served as a federal prosecutor and in-house counsel in the
U.S. Air Force JAG Corps. In that role, he regularly advised senior leaders on a variety of issues
and gained extensive experience in all facets of trial practice, ethics, government investigations,
government contracts, and federal regulatory compliance. Before and during law school, Eliot
served as a policy advisor to the governor of South Carolina. He continues his service in the U.S.
Air Force Reserve.
A 2010 graduate of the University of South Carolina School of Law, he served as Chief
Justice of the Moot Court Bar and as Articles Editor for the Real Property, Trust and Estate Law
Journal. Subsequently, he clerked for the Honorable Justice John W. Kittredge on the South
Carolina Supreme Court and the Honorable Timothy M. Cain on the U.S. District Court for the
District of South Carolina. Eliot received his Bachelor of Arts, cum laude, from the University of
Georgia in 2005.
Accolades
• Commissioned Officer Training, distinguished graduate

• Squadron Officer School, distinguished graduate
Professional & Community Activities
• Federalist Society
• American Bar Association
• Veterans of Foreign Wars
• James Madison Institute
• Leaders Fellowship, Class IV
• Holy Trinity Presbyterian Church
• Ferguson-White Inn of Court
You May Not Know
Previously, Eliot taught the law of armed conflict to future U.S. Air Force remotely
piloted aircraft pilots. In 2014, he served as the chief of the litigation support section at Joint
Task Force Guantanamo, Guantanamo Bay, Cuba.
SECTION 5
1. Dwight D. Van Horn. Retired Los Angeles County Deputy Sheriff (1999). Retired after a
law enforcement career spanning 33 years including 6 years active and reserve with the USAF,
Trenton New Jersey Police Department, Hermosa Beach, CA Police Department and the last 18
years as a Deputy Sheriff with the Los Angeles County Sheriff’s Department working the last 14
years as a Forensic Firearms Examiner in the Crime lab. Worked as a contract firearms
Examiner for the Idaho State police and the Washington State Patrol and for the Department of
6
the Navy assisting US Special Forces at Camp Victory and Camp Speicher in Iraq. Currently
working as an independent Forensic Firearms Examiner.
Just starting my 22nd year on the National Rifle Association Board of Directors. Currently
serving on the Executive Committee, The Board of Trustees of the Whittington Center,
Chairman of the Competition Rules and Programs Committee and a member of the Law
Enforcement, Action Shooting and Sport Shooting Committees.
Long time competitive shooter, avid elk and game bird hunter and Trap & Skeet shooter.
Staunch supporter and defender of our Second Amendment Freedoms.
2. Stephen P. Halbrook, Ph.D.
“Stephen Halbrook is an attorney with extensive knowledge of the historical

underpinnings of the Second Amendment and practical knowledge of litigating in this rapidly
evolving area of law. His writings include topics as diverse as Gun Control in the Third Reich and
The Founders’ Second Amendment, and he was heavily involved in Heller and McDonald.” – U.S.
District Judge Michael J. Reagan, in Shepard v. Madigan, 2014 WL 4825592, *7 (S.D. Ill. 2014)
(awarding attorney’s fees in challenge to Illinois carry ban). See further
http://stephenhalbrook.com/.
Legal background and focus
Stephen Halbrook has been engaged in civil litigation and criminal defense since 1978,
particularly regarding constitutional issues involving Federalism and Bill of Rights guarantees.
Represents firearm associations, manufacturers, importers, dealers, and owners in
administrative, civil, and criminal proceedings under federal, state, and local law, with a major
focus on ATF compliance.
Member of Virginia State Bar, District of Columbia Bar, U.S. Supreme Court, U.S. Courts
of Appeals - all circuits, other federal courts.
Testified in U.S. Senate and House Committees on the Sportsmen’s Heritage and
Recreational Enhancement (SHARE) Bill, the Fix NICS Act, numerous other firearm bills, and on
the nominations of Eric Holder and Sonia Sotomayor.
Academic background
Georgetown University Law Center, J.D. (1978); Florida State University, Ph.D.
Philosophy (1972). Assistant Professor of Philosophy 1972-81, George Mason University,
Howard University, Tuskegee University. Senior Fellow, The Independent Institute.
Supreme Court cases litigated
7
Argued Castillo v. U.S., 530 U.S. 120 (2000); Printz v. U.S., 521 U.S. 898 (1997); U.S. v.
Thompson/Center Arms Co., 504 U.S. 505 (1992). Co-counsel in Small v. U.S., 544 U.S. 385
(2005), and for NRA in McDonald v. Chicago, 130 S.Ct. 3020 (2010). Counsel for amici curiae 55
Senators, the Senate President, and 250 Representatives in D.C. v. Heller, 554 U.S. 570 (2008).
Books
Firearms Law Deskbook: Federal and State Criminal Practice (Thomson/West 2018).
Gun Control in Nazi-Occupied France: Tyranny and Resistance (2018).
Gun Control in the Third Reich: Disarming the Jews and “Enemies of the State” (2013).
Also published in German, French, and Portuguese.
The Founders' Second Amendment: Origins of the Right to Bear Arms (2008). Cited in
McDonald v. Chicago.
Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (1998).
New Edition: Securing Civil Rights (2010). Cited in McDonald v. Chicago and DC v. Heller.
That Every Man Be Armed: The Evolution of a Constitutional Right (1984, New Ed. 2013).
Cited in Printz v. U.S.
A Right to Bear Arms: State & Federal Bills of Rights & Constitutional Guarantees (1989).
The Swiss and the Nazis: How the Alpine Republic Survived in the Shadow of the Third
Reich (2006). Also published in German, French, and Polish.
Target Switzerland: Swiss Armed Neutrality in World War II (1998, 2003). Also published
in German, French, Italian and Polish.
Selected Articles
“Firearm Sound Moderators: Issues of Criminalization & the Second Amendment,” 46:1
Cumberland L. Rev. 33 (2016).
“Reality Check: The ‘Assault Weapon’ Fantasy and Second Amendment Jurisprudence,”
14 Georgetown Journal of Law & Public Policy 47-76 (2016).
“New York’s Not So ‘SAFE’ Act,” 78 Albany L. Rev. 789 (2014/15).
“The Empire Strikes Back: D.C.’s Post-Heller Firearm Registration System,” 81 Tenn. L.
Rev. 571 (2014).
“Why Can’t We Be Like France?” 34 Fordham Urban Law Journal, No. 5, 1637 (2012).
8
SECTION 6
Michael Jean received Bachelors of Arts degrees in Criminal Justice and American Public
Policy from Western Michigan University. He went on to law school at the Western Michigan
University – Thomas M. Cooley Law School. During this time, he participated as a guest student
at: the Monash University Law Faculty in Melbourne, Australia; the University of Canterbury
School of Law in Christchurch, New Zealand; the University of Toronto in Toronto, Canada; and
the University of San Diego’s Paris Institute on International and Comparative Law in Paris,
France. He clerked for the Criminal Division of the 3rd Judicial Circuit Court of Michigan in
Detroit, and finished law school as a litigation intern at Safari Club International in Washington,
DC.
He was admitted to the State Bar of Michigan, and joined the Office of Litigation
Counsel at the National Rifle Association of America – Institute for Legislative Action in May of
2012. Since then, he has been litigating wildlife, shooting range, and Second Amendment
matters in state and federal courts, and advising private attorneys and NRA members on
restoration of rights.
9
National Firearms Law Seminar
Section One
Professor George Mocsary
A Survey of Current Second Amendment Litigation – including the new

U.S. Supreme Court Case, NYSRPA v. City of New York
David Thompson
Guns, Bird Feathers, and Overcriminalization:
Why Courts Should Take the Second
Amendment Seriously
ROBERT J. COTTROL* AND GEORGE A. MOCSARY**

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
I. LEVELS OF SECOND AMENDMENT DEBATE . . . . . . . . . . . . . . . . . . . 21

A. A History Revised . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
B. A Jurisprudence Underdeveloped . . . . . . . . . . . . . . . . . . . . 24
i. From Cruikshank to Miller . . . . . . . . . . . . . . . . . . . . . . 24
ii. From Miller to Heller . . . . . . . . . . . . . . . . . . . . . . . . . . 26
iii. Heller and Beyond . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
II. UNDERENFORCEMENT OF THE SECOND AMENDMENT: RECONSIDERING

THE CONSEQUENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
A. “Assault Weapons”—the Quintessential Demonization
Campaign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
B. Overcriminalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
INTRODUCTION
It is our pleasure to participate in that hardy perennial, a debate on the Second
Amendment and what should be our national policy or policies on gun control
and gun ownership. Our commission, as we understand it, is to discuss how
rigorously the courts should enforce the Second Amendment. At one time, less
than a decade ago, we had a very different debate, a debate about the very
meaning of the constitutional provision that states: “A well-regulated Militia,
being necessary to the security of a free state, the right of the people to keep and
* Harold Paul Green Research Professor of Law, and Professor of History and Sociology, The
George Washington University. A.B., Ph.D., Yale University, J.D., Georgetown University Law Center.
** Assistant Professor, Southern Illinois University School of Law. Fordham University School of
Law, J.D., summa cum laude, 2009; University of Rochester Simon School of Business, M.B.A., 1997.
The authors would like to thank John Marshall Cottrol II, Bob Dowlut, David B. Kopel, David
Karpis, Sharee S. Langenstein, Mark Overstreet, and Christopher Zealand for their valuable insights
and feedback. The authors are also grateful to Jacob Kirk and Jennifer Paulson for their excellent
research, and to David Stoddard for his excellent research and editing. © 2016, Robert J. Cottrol and
George A. Mocsary.
17
18 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 14:17
bear Arms, shall not be infringed.”1 Powerful voices in the media, the academy,
and the legislative and judicial branches of our government argued that this
constitutional amendment, alone among the other provisions of the Bill of
Rights, was essentially meaningless as a vehicle that might protect the rights of
American citizens or others who might live under the jurisdiction and authority
of the United States.2 Did the Second Amendment guarantee the right of
individuals to have arms, in part for purposes of self-defense, or did it simply
protect a right, largely undefined by its champions, for states to maintain
militias, or perhaps for members of the organized militia to have arms? Those
questions were at least temporarily answered as a matter of positive law by the
Supreme Court’s two twenty-first century Second Amendment decisions Dis-
trict of Columbia v. Heller3 and McDonald v. City of Chicago.4 The current
holdings of the Supreme Court say that the amendment which states in its
operative language that “the right of the people to keep and bear arms shall not
be infringed,” actually was meant to protect from government infringement the
right of the people to keep and bear arms. Both had narrow support with five
supporting justices and four dissenters. Both decisions have been called mis-
takes and have been subject to calls for reversal from, among others, Justice
Ruth Bader Ginsburg and former Justice John Paul Stevens.5 But the decisions
still stand, and, it should be added, they have a great deal of popularity with the
American people, protesting jurists and academics notwithstanding.6
On March 21, 2016, the Supreme Court issued a decision which strengthened
the precedents put forward in Heller and McDonald. In a per curium decision in
the case of Caetano v. Massachusetts, the Court vacated the judgment of the
Massachusetts Supreme Judicial Court and remanded the case for further exami-
nation consistent with Heller.7 The Massachusetts court held that stun guns
were not protected by the Second Amendment because they employed a technol-
ogy unknown at the time of its adoption.8 Caetano confirmed the decisions in
1. U.S. CONST. amend. II.

2. See, e.g., Warren Burger, The Right to Bear Arms, PARADE MAG., Jan. 14, 1990, at 4.
3. District of Columbia v. Heller, 554 U.S. 570, 591 (2008) (holding that the Second Amendment
protects an individual right to arms for purposes of self-defense, independent of militia service).
4. McDonald v. City of Chicago, 561 U.S. 742, 749 (2010) (holding that the Second Amendment
was incorporated and restricted the states as well as the federal government).
5. Interview by John Hockenberry with Ruth Bader Ginsburg (Sept. 16, 2013) (transcript archived at
http://perma.cc//SW5Q-26WT); John Paul Stevens, The Five Extra Words that Can Fix the Second
Amendment, WASH. POST (Apr. 11, 2014), https://www.washingtonpost.com/opinions/the-five-extra-words-
that-can-fix-the-second-amendment/2014/04/11/f8a19578-b8fa-11e3-96ae-f2c36d2b1245_story.
html?utm_term⫽.c8e994121b17.
6. Robert J. Cottrol, Second Amendment: Not Constitutional Dysfunction, but Necessary Safeguard,
94 B.U. L. REV. 835, 840–41 (2014).
7. Caetano v. Massachusetts, 136 S. Ct. 1027, 1028 (2016) (per curiam).
8. Id. at 1028. On July 6, 2016, Ms. Caetano was formally exonerated: the charges against her were
dropped, she was formally found not guilty, and the record was sealed. Eugene Volokh, Charges
Dropped in Caetano v. Massachusetts Second Amendment Stun Gun Case, VOLOKH CONSPIRACY (July 7,
2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/07/07/charges-dropped-in-
caetano-v-massachusetts-second-amendment-stun-gun-case.
2016] GUNS, BIRD FEATHERS, AND OVERCRIMINALIZATION 19
Heller and McDonald that the Second Amendment protected a right of individu-
als against infringement by state authorities. Caetano also broke new ground by
indicating that the Second and Fourteenth Amendments protected arms that
employed new technologies and, implicitly, given that Ms. Caetano used her
stun gun outside her home, that the right to bear arms extended outside the
home.9 The details of the case are perhaps less important than the fact that a
unanimous Court, including Justices Ginsburg and Stephen Breyer, who had
dissented in Heller, and Justice Sonia Sotomayor, who had joined the dissent in
McDonald, joined the per curium decision.
But how rigorously should these decisions be enforced? What levels of
scrutiny should the courts adopt to deal with the new regime recognizing
constitutional limitations on the regulation of arms? Which arms are protected?
In which venues? These and related questions can be answered in part by
surveying the terrains over which Second Amendment battles, and firearms
policy more generally, have been waged. One is a constitutional-historical
landscape, in which the debate has gone back and forth over the original
meaning and subsequent judicial interpretations of the Second Amendment.10
More perceptive students of the subject have also realized that the original
meaning and subsequent interpretations of the Fourteenth Amendment—
particularly the relation between that amendment and the application of the Bill
of Rights to the states—is of particular interest to those concerned with the
Constitution and what it says about the citizen’s right to arms.11 Another
battlefield has been the courts, especially in recent years since Heller and
McDonald became law. Here, the constitutional-historical debate is the founda-
tion onto which policy arguments and empirical claims are layered.
We will review both the historical-constitutional and jurisprudential debates.
But we also want to do something more. There has been one potential battle that
has been left un-joined, one bit of contestable territory that has not been well
explored in the ongoing debate on the Constitution and firearms policy. This
under-explored landscape links lessons from the constitutional and empirical
debates and combines them with some of the most fundamental questions raised
in criminal law: Who should we punish? Why? What is the role of proportional-
9. Id.; see id. (Alito, J., concurring) (describing Ms. Caetano’s encounter with her violent ex-
boyfriend). Caetano addresses the former point by noting that Heller held that “the Second Amendment
‘extends . . . to . . . arms . . . that were not in existence at the time of the founding.’” Id. at 1028. Before
Caetano, however, one might have read Heller as referring only to gunpowder arms.
10. There is an extensive literature on the history of the Second Amendment. We will not attempt to
enumerate it here. Three book-length treatments have been especially influential: SAUL CORNELL, A
WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN AMERICA (2006);
STEPHEN P. HALBROOK, THE FOUNDER’S SECOND AMENDMENT: ORIGINS OF THE RIGHT TO BEAR ARMS (2008);
and JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF ANGLO-AMERICAN RIGHT (1994).
11. See, e.g., AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 48–52, 83–88
(1998); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF
RIGHTS 24, 43, 52–56, 74, 138–41, 164, 170, 203 (1986). See also Robert J. Cottrol & Raymond T.
Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309,
342–49 (1991).
ity in punishment?12 Should the state’s approach to malum prohibitum (wrong

because the state has deemed them so, often for transient policy reasons)13
crimes be different from its approach to malum in se (inherently evil)14 crimes?
What should we do when a utilitarian objective of the criminal justice system,
deterrence for example, can only be achieved through the infliction of punish-
ments that are grossly disproportionate and, indeed, at the end of the day,
unjust?15 These elementary questions usually occupy and vex first-year law
students during their first weeks studying criminal law. These issues are often
forgotten or only dimly remembered as part of an early first-year hazing ritual
before the criminal law class gets down to the serious business of defining the
elements of crimes and learning a bit about the Model Penal Code and contempo-
rary penal statutes. As the student progresses to take criminal procedure in
subsequent years, and perhaps take advanced courses in criminal law and
procedure, and later still goes on to a career as a prosecutor or defense attorney,
the memory of these early “philosophical” or “policy” discussions in the first
weeks of the first year of law school become even more dim, clouded by the
practical business of day-to-day prosecution or defense of criminal defendants.
Yet these fundamental questions also have a bearing on how vigorously the
courts should enforce the Second Amendment. If the historical debate provides
a key to the legitimacy of the individual rights interpretation of the Second
Amendment at the heart of Heller and McDonald, and the criminological debate
provides an important guide to the likely consequences of rigorous or lax
enforcement of the constitutional provision, an examination of the most funda-
mental criminal law questions might be the key to understanding whether
firearms regulations can have unintended or counterproductive consequences.
To what extent does stricter firearms legislation increase public safety, or to
what extent does it create a new class of victimless crimes? Does such legisla-
tion end up shifting the burden of crime reduction from career criminals to
peaceable citizens? These too are issues that must be considered within the
context of the Second Amendment’s enforcement. Among other issues, we
argue that the question of Second Amendment enforcement has to be linked to
our longstanding concerns with overcriminalization and its consequences.16
12. See, e.g., Stephen Smith’s discussion of proportionality and moral blameworthiness as essential
elements in constructing a system of criminal justice in, Stephen F. Smith, Proportionality and
Federalization, 91 VA. L. REV. 879, 880–88 (2005). See also Alice Ristroph, Proportionality as a
Principle of Limited Government, 55 DUKE L.J. 263 (2005) (discussing proportionality as a limitation
on the power to punish).
13. A malum prohibitum offense is one that “is a crime merely because it is prohibited by statute,
although the act itself is not necessarily immoral.” BLACK’S LAW DICTIONARY 1103 (10th ed. 2014).
14. A malum in se offense “is inherently immoral, such as murder, arson, or rape.” BLACK’S LAW
DICTIONARY 1103 (10th ed. 2014); see infra text accompanying notes 128–133.
15. Ristroph, supra note 12, at 279–84.
16. See, e.g., Sanford H. Kadish, The Crisis of Overcriminalization, 374 ANNALS AM. ACAD. POL. &
SOC. SCI. 157 (1967); Ekow N. Yankah, A Paradox in Overcriminalization, 14 NEW CRIM. L. REV. 1
I. LEVELS OF SECOND AMENDMENT DEBATE

The historical-constitutional and jurisprudential developments of Second
Amendment discourse suggest attempts to establish decidedly revisionist ac-
counts of the nature of the American right to arms. This Part discusses some of
these efforts to steer each strand of the debate.
A. A History Revised
There is an all too facile narrative that has developed in the wake of the
Court’s rulings in Heller and McDonald. It argues that there had been a
universal and longstanding understanding that the Second Amendment did not
protect the right of individuals to keep and bear arms, but only the right of states
to maintain militias or for members of the organized militia to keep and bear
arms. According to this narrative, the traditional understanding only changed,
and helped produce the Court’s decisions in Heller and McDonald, because of
vigorous advocacy by the National Rifle Association. The NRA’s efforts were
joined in the 1990s, the story goes, by legal scholars eager to explore a then
largely uncharted territory in the field of constitutional law. This explanation for
Heller and McDonald has been taken up by distinguished members of the legal
academy, including Erwin Chemerinsky, Dean of University of California,
Irvine School of Law School. Dean Chemerinsky informs us, without citing any
cases, that “[f]rom 1787 until 2008 the Court said that the Second Amendment
protects only a right to have firearms for militia service. But in District of
Columbia v. Heller (2008) the Court struck down a thirty-five-year-old District
of Columbia ordinance prohibiting private possession of handguns.”17 Simi-
larly, Harvard Law School professor Cass Sunstein authored an article entitled
How the Gun Lobby Rewrote the Second Amendment also arguing that the
individual rights view of the amendment was of recent vintage, owing more to
the activism of the NRA than the original understandings of the amendment and
subsequent Supreme Court cases.18
The idea of a private right to arms only recently discovered by an activist
Court prodded by a political interest group is at sharp variance with the
historical record. Our best evidence indicates that the men who wrote, debated,
and ultimately adopted the Constitution, including the Bill of Rights and the
Second Amendment, saw a necessary connection between the private ownership
of arms and the citizen’s ability to serve in the militia. A century before the
adoption of the American Constitution, the principle that the law protected the
(2011); Ellen S. Podgor, Introduction Overcriminalization: New Approaches to a Growing Problem,

102 J. CRIM. L. & CRIMINOLOGY 529 (2012).
17. Erwin Chemerinsky, 10 Lessons from Chief Justice Roberts’ First 10 years, ABA JOURNAL (Sept.
30, 2015, 8:30 AM), http://www.abajournal.com/news/article/chemerinsky_10_lessons_from_chief_
justice_roberts_first_10_years/.
18. Cass Sunstein, How the Gun Lobby Rewrote the Second Amendment, BLOOMBERG VIEW (Oct. 7,
2015, 2:56 PM), http://www.bloombergview.com/articles/2015-10-07/how-the-gun-lobby-rewrote-the-
second-amendment.
citizen’s right to own arms was stated as a political principle in the English Bill
of Rights of 1689. That English Bill of Rights, which was a statute, not a part of
a constitution, contained a provision protecting the right of Protestants to own
arms.19 In the rough English colonies of seventeenth- and eighteenth-century
America, regular police and military forces were rare. The defense of colonies
from external enemies and internal law-breakers was accomplished by armed
citizens formed into militias and posses. The Framers were well aware of this
history and the fact that militias had played a significant part in the rebellion
against English rule. The armed population, or at least the armed population of
adult white men, constituted an inchoate militia, one that was familiar with the
arms of the day from private pursuits, hunting, and self-defense. This force
could be called upon for the defense of the community. It was also seen as a
potential hedge against a government that might overstep its authority and turn
tyrannical. This notion of the population at large as an inchoate militia that
could aid in the common defense and also resist potential tyranny was well
known to the framing generation and was indorsed by James Madison, Alexan-
der Hamilton, and other champions of the new constitution.20
The earliest legal commentaries also saw the Second Amendment as protect-
ing the right of individuals to their private weapons. One of the most important
early commentators on American law and the American Constitution was
Virginia jurist St. George Tucker. Tucker edited the first American edition of
Blackstone’s Commentaries, a series of discussions on the common law of
England. Blackstone in his Commentaries discussed the right to have arms at
English law. Tucker compared the English right to arms, as outlined by Black-
stone, with its American counterpart. Tucker pointed out that the American right
was more robust and that it, unlike the right in England, was not hampered by
game laws that Tucker argued had effectively disarmed much of the English
population. Published in 1803, Tucker’s Blackstone provides one of the most
authoritative examples of how the Constitution, including the Second Amend-
ment, was viewed as a legal document in the infancy of the nation’s constitu-
tional history.21
If the generation that proposed, debated, and ratified the Constitution and its
first ten amendments gave every indication that it saw “the right to keep and
bear arms” as a right of individuals related to, but not limited by, militia service,
the Reconstruction-era Republicans who placed the Fourteenth Amendment into
the Constitution indicated that they intended that their addition would make the
right to keep and bear arms, along with the other provisions of the Bill of
19. Bill of Rights, 1 W. & M., sess.2, c.2 (1689) (Eng.).

20. THE FEDERALIST NO. 29, at 183 (Alexander Hamilton) (The Heritage Press 1945); THE FEDERALIST
NO. 26, at 319 (James Madison) (The Heritage Press 1945).
21. BLACKSTONE’S COMMENTARIES WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS, OF THE
FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA IN FIVE VOLUMES,
VOL. 1, 143 n.41 (St. George Tucker, ed., Philadelphia, William Young Birch and Abraham Small,
1803).
Rights, binding on the states. The prevailing constitutional doctrine before the
Civil War had been that the Bill of Rights only protected citizens from infringe-
ments by the Federal Government, not violations of basic rights by the states.
But the struggle against slavery and the limitations on the rights of abolitionists
to speak out against “the Peculiar Institution” before the War of the Rebellion
had caused many Republicans to believe that the rights guaranteed by the Bill of
Rights had to be protected against actions by both the states and the federal
government. If the violations of the right to speak or publish were not enough to
convince most Republicans that basic rights needed to be protected against
infringement by state governments, the Black Codes passed in the wake of the
Civil War helped persuade others that federal protection—constitutional protec-
tion—was needed. The Black Codes were legislative enactments passed in the
Southern states in 1865 and 1866. They prescribed a number of legal disabilities
for the newly freed black population.22 For many northern Republicans, the
most odious of these were prohibitions on blacks owning arms. The prospect
that the white South, composed of former Confederate soldiers and their
sympathizers, would remain armed while the black South, many of whom were
Union Veterans, would be disarmed by law enraged many Republican members
of Congress. One of them, Representative Sidney Clarke of Kansas, during
debates on the Civil Rights Act of 1866, expressed the views of many Republi-
cans on the need to protect the right of the freedmen to have arms, a right he
saw as quite distinct from service in the militia:
Who, sir were those men? Not the present militia, but the brave black soldiers
of the Union, disarmed and robbed by the wicked and despotic order. Nearly
22. For example, Mississippi passed the following:

Sec. 1. Be it enacted,. . .That no freedman, free negro or mulatto, not in the military service of
the United States government, and not licensed so to do by the board of police of his or her
county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife, and
on conviction thereof in the county court shall be punished by fine, not exceeding ten dollars,
and pay the costs of such proceedings, and all such arms or ammunition shall be forfeited to
the informer; and it shall be the duty of every civil and military officer to arrest any freedman,
free negro, or mulatto found with any such arms or ammunition, and cause him or her to be
committed to trial in default of bail.. . .
Sec. 3. If any white person shall sell, lend, or give to any freedman, free negro, or mulatto any
fire-arms, dirk or bowie knife, or ammunition, or any spirituous or intoxicating liquors, such
person or persons so offending, upon conviction thereof in the county court of his or her
county, shall be fined not exceeding fifty dollars, and may be imprisoned, at the discretion of
the court, not exceeding thirty days.. . .
Sec. 5. If any freedman, free negro, or mulatto, convicted of any of the misdemeanors
provided against in this act, shall fail or refuse for the space of five days, after conviction, to
pay the fine and costs imposed, such person shall be hired out by the sheriff or other officer, at
public outcry, to any white person who will pay said fine and all costs, and take said convict
for the shortest time.
1865 Miss. Laws 166 (Nov. 29, 1865). For more, see NICHOLAS J. JOHNSON, DAVID B. KOPEL, GEORGE
MOCSARY & MICHAEL P. O’SHEA, FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION, RIGHTS, AND
POLICY 290–92 (2012).
every white man in [Mississippi] that could bear arms was in the rebel ranks.
Nearly all of their able bodied colored men who could reach our lines enlisted
under the old flag. Many of these brave defenders of the nation paid for their
arms with which they went to battle. And I regret, sir, that justice compels me
to say, to the disgrace of the Federal Government, that the “reconstructed”
state authorities of Mississippi were allowed to rob and disarm our veteran
soldiers and arm the rebels fresh from the field of treasonable strife. Sir, the
disarmed loyalists of Alabama, Mississippi and Louisiana are powerless
today, and oppressed by the pardoned and encouraged rebels of those states.23
The concerns expressed by Clarke and other Republican members would find
their way into the debates over the Fourteenth Amendment, which, among other
purposes, was designed to ensure the Constitutionality of the Civil Rights Act of
1866. The debates over the Fourteenth Amendment in the Thirty-Ninth Con-
gress give strong evidence that the supporters of the new constitutional provi-
sion intended the Privileges or Immunities Clause to protect citizens from state
infringements of rights guaranteed by the Bill of Rights.24
B. A Jurisprudence Underdeveloped
Second Amendment jurisprudence has taken place in three eras. The first
began shortly after the Civil War, when southern whites felt threatened by the
new class of Freedmen, and it continued through an era of labor and immigrant
unrest. The second began with the passage of the National Firearms Act of
1934, which heralded an era of ever-increasing trust in government protection.
The third began when the Supreme Court confirmed in District of Columbia v.
Heller that the Second Amendment protected an individual right to keep and
bear arms for self-defense.25
i. From Cruikshank to Miller

As the history of the Second and Fourteenth Amendments provides little
support for the notion that the Constitution was not meant to protect the right of
individuals to have arms, the Supreme Court’s earliest examinations of the topic
also support an individualist reading of the Second Amendment. That individual-
ist reading had only a limited effect because the Supreme Court in the nine-
teenth century was willing to give only a very limited acknowledgement of the
full scope and effect of the Fourteenth Amendment. The first case alleging a
violation of the Second Amendment was brought, ironically enough, by the
23. THE RECONSTRUCTION AMENDMENTS’ DEBATES 209 (Alfred Avins, ed., 1967).
24. Jonathan Bingham, who authored the Section I of the Amendment, which included the Privileges
or Immunities Clause, and introduced it before the House of Representatives and Jacob Howard, who
introduced the Amendment in the Senate and explained the meaning of the Privileges or Immunities
Clause before the upper chamber. CONG. GLOBE, 39th Cong., 1st Sess. 1088, 2765 (1866); CONG. GLOBE,
42d Cong., 1st Sess. app. 84 (1871).
25. See supra note 3 and accompanying text.
federal government. In United States v. Cruikshank, federal authorities brought

charges against William Cruikshank and his associates for violating the civil
rights of a number of black men in Louisiana.26 The charges were brought under
the Enforcement Act of 1870, which had been passed in order to allow federal
prosecutions for violations of the civil rights of the newly freed Negro popula-
tion and also to protect the rights of white unionists in the South. Among the
charges brought against Cruikshank and his associates were that he and his mob
of followers had violated the rights of a group of black men to peaceably
assemble and to keep and bear arms. The black men were going to the polls and
they were armed, anticipating possible attack from a hostile white mob.
The Supreme Court, in its examination of the Federal Government’s charges,
overturned the convictions of Cruikshank and the others on the grounds that
Congress did not have the power to criminalize deprivations of constitutional
rights committed by private citizens. The First and Second Amendments, accord-
ing to the opinion authored by Chief Justice Morrison R. Waite, protected
Americans from acts of Congress—infringements by the Federal Government.
Cruikshank was part of a broader process by which the Supreme Court in the
1870s and 1880s was about the business of blunting the constitutional revolu-
tion that the Fourteenth Amendment was meant to be. That amendment was
clearly meant to revise antebellum notions of race and status, notions that were
encapsulated in Dred Scott v. Sandford, in which Chief Justice Roger B. Taney
reasoned that blacks, slave or free, could not be citizens because citizenship
“would give to persons of the negro race . . . the right . . . to keep and carry
arms wherever they went,” along with other “individual rights.”27 The Four-
teenth Amendment was also intended to redesign American federalism by
requiring the states to respect basic rights of their citizens. This was a repudia-
tion of the view the Supreme Court had put forward in Barron v. Baltimore, an
1833 case in which the Court held that the Fifth Amendment, and, by implica-
tion, other sections of the Bill of Rights, were not limitations on state govern-
ments.28 Finally, the Fourteenth Amendment, like its counterparts the Thirteenth
and Fifteenth Amendments, was designed to make Congress a major player in
the enforcement of the new constitutional order. This reflected the view of many
in the Reconstruction-era congresses that the Court had made fatally flawed
decisions in Barron and Dred Scott.29
A series of Supreme Court decisions helped to quash much of this Constitu-
tional Revolution in the nineteenth century. Cruikshank30 in 1875 and later the
26. JOHNSON ET AL., supra note 22, at 299.

27. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417, 450 (1857), superseded by constitu-
tional amendment, U.S. CONST. amend. XIV.
28. Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).
29. See Clayton E. Cramer, Nicholas J. Johnson & George A. Mocsary, “This Right Is Not Allowed
by Governments that Are Afraid of the People”: The Public Meaning of the Second Amendment when
the Fourteenth Amendment Was Ratified, 17 GEO. MASON L. REV. 823 (2010).
30. United States v. Cruikshank, 92 U.S. 542 (1875).
Civil Rights Cases31 in 1883 put strict limits on Congress’s ability to enact
protective legislation under the authority of the Fourteenth Amendment. The
Slaughterhouse Cases of 1873 stripped the new Amendment’s Privileges or
Immunities Clause, the provision that was meant to apply the Bill of Rights to
the states, of any effective meaning.32 The Second Amendment would also fall
victim to this judicial counter-revolution. In the 1886 case of Presser v. Illinois,
the Supreme Court held that the Second Amendment only restrained the federal
government, not the states.33 Curiously enough, Justice William Woods, Press-
er’s author, also stated that the states, putting the Second Amendment aside,
could not disarm their populations because doing such would deprive the
government of its reserve militia—the population at large.34
Presser would have profound consequences for the development of a jurispru-
dence concerning the right to arms in federal courts. Most gun control measures
historically have been enacted by the states rather than the federal government.
The doctrine that the Second Amendment only limited the Federal Government
therefore meant that federal courts were not asked the hard questions concern-
ing which kinds of regulations were consistent with a constitutional right to bear
arms.35 Judicial scrutiny of the Second Amendment would be limited to exami-
nations of a relatively limited set of federal laws, not the broader universe of
state and local firearms regulations. The Supreme Court’s next major encounter
with the Second Amendment was in hearing a challenge to the National
Firearms Act of 1934 (NFA), the federal government’s first national gun-control
measure.
ii. From Miller to Heller

Before District of Columbia v. Heller confirmed in 2008 that the Second
Amendment guaranteed and codified a preexisting individual right to keep and
bear arms,36 the U.S. Supreme Court had last directly addressed the Second
Amendment in the 1939 case of United States v. Miller.37 Jack Miller was
caught in possession of a sawed-off shotgun in violation of the NFA.38 Reject-
ing the district court’s holding that the Act violated the Second Amendment, the
Court held,
31. The Civil Rights Cases, 109 U.S. 3 (1883) (holding that Congress lacked authority under the
Fourteenth Amendment to outlaw private racial discrimination).
32. The Slaughterhouse Cases, 83 U.S. 36 (1873).
33. Presser v. Illinois, 116 U.S. 252 (1886).
34. Id. at 265.
35. State courts had, however, examined the question in detail, especially in the nineteenth century.
With very rare exceptions, they held that individuals possessed a right to arms. They differed, however,
in the scope of the right. See JOHNSON ET AL., supra note 22, at 251–74, 321–39 (excerpting and citing
cases and providing commentary).
36. District of Columbia v. Heller, 554 U.S. 570, 592 (2008).
37. United States v. Miller, 307 U.S. 174 (1939); George A. Mocsary, Explaining Away the Obvious:
The Infeasibility of Characterizing the Second Amendment as a Nonindividual Right, 76 FORDHAM L.
REV. 2113, 2113–14 & n.4 (2008).
38. Miller, 307 U.S. at 175.
In the absence of any evidence tending to show that possession or use of a

“shotgun having a barrel of less than eighteen inches in length” at this time
has some reasonable relationship to the preservation or efficiency of a well-
regulated militia, we cannot say that the Second Amendment guarantees the
right to keep and bear such an instrument. Certainly it is not within judicial
notice that this weapon is any part of the ordinary military equipment or that
its use could contribute to the common defense.39
Reviewing historical sources, the Court said,
[T]he Militia comprised of all males physically capable of acting in concert

for the common defense. “A body of citizens enrolled for military discipline.”
And further, that ordinarily when called for service these men were expected
to appear bearing arms supplied by themselves and of the kind in common use
at the time.40
The Court remanded for further proceedings.41 Although Miller is a confus-

ing opinion which the Heller Court criticized as “virtually unreasoned,”42 a few
basic points are readily ascertainable: First, if one assumes that “common
defense” is a militia-only undertaking, Miller is fairly read as requiring some
connection between the militia and the weapon in question. Second, if the Court
believed that the arms-bearing right belonged to states rather than to individu-
als,43 it would not have remanded the case to determine whether the militia-
connection requirement of its holding was satisfied.44 Third, the Court did not
hold that the NFA’s regulation of short-barreled shotguns was per se
constitutional.
39. Id. at 178.

40. Id. at 179.
41. Id. at 183.
42. Heller, 554 U.S. at 624 n.24; see also Transcript of Oral Argument at 62, District of Columbia v.
Heller, 554 U.S. 570 (2008) (No. 07-290) (Justice Anthony Kennedy referring to Miller as “deficient”).
43. It is worth noting on this point that the Court adopted the second of the government’s following
two arguments in the case:
First, it argued that the Amendment “gave sanction only to the arming of the people as a body
to defend their rights against tyrannical and unprincipled rulers” and “did not permit the
keeping of arms for purposes of private defense.” Thus, the right was “only one which exists
where the arms are borne in the militia or some other military organization provided for by
law and intended for the protection of the state.” Second, the government argued that “the
term ‘arms’ . . . refers only to those weapons which are ordinarily used for military or public
defense purposes and does not relate to those weapons which are commonly used by
criminals.”
Mocsary, supra note 37, at 2136–37 (quoting Brief of the United States at 12, 15, 18, United States v.
Miller, 307 U.S. 174 (1939) (No. 38-696)) (internal citations omitted).
44. See Nelson Lund, Heller and Second Amendment Precedent, 13 LEWIS & CLARK L. REV. 335,
338–39 (2009).
Three years after Miller, the U.S. Court of Appeals for the First Circuit
addressed a Second Amendment challenge to the Federal Firearms Act45 (FFA)
in Cases v. United States.46 The court acknowledged that, under Miller, “the
federal government . . . cannot prohibit the possession or use of any weapon
which has any reasonable relationship to the preservation or efficiency of a
well-regulated militia.”47 Yet in its next breath, it refused to apply an “outdated”
Miller ostensibly for fear of allowing militia weapons into potentially criminal
hands, stating that “some sort of military use seems to have been found for
almost any modern lethal weapon.”48
The same year, the U.S. Court of Appeals for the Third Circuit likewise
rejected a Second Amendment challenge to the FFA in United States v. Tot.49
The court stated that the Second Amendment “was not adopted with individual
rights in mind, but as a protection for the States in the maintenance of their
militia organizations against possible encroachments by the federal power.”50
Yet this position was at odds with both Miller51 and Supreme Court precedent
holding that the federal government had plenary power over the militia.52 The
court concluded with the policy statement that “[t]he social end sought to be
achieved by this legislation, the protection of society against violent men armed
with dangerous weapons, all would concede to be fundamental in organized
government.”53 Although the FFA was “stringent,” the court held, it was not “so
oppressive and arbitrary” that it “infringe[d] upon the preservation of the
well-regulated militia protected by the Second Amendment.”54
A mere three years after Miller, then, federal appellate courts were already
fomenting a fear that any serious enforcement of the Second Amendment might
45. The FFA regulated what one might today think of as “ordinary” firearms rather than what some
consider more unusual weapons like machine guns and short-barreled shotguns that are still regulated
by the NFA. Compare National Firearms Act of June 26, 1934, ch. 757, 48 Stat. 1236 (amended 1954),
with Federal Firearms Act of June 30, 1938, ch. 850, 52 Stat. 1250 (repealed 1965).
46. Cases v. United States, 131 F.2d 916 (1st Cir. 1942).
47. Id. at 922.
48. Id. The court applied what was essentially an intent-based test to conclude that Cases’s firearm
possession was not protected because he was neither affiliated with a military organization nor was his
possession of his firearm at the time of his arrest in a nightclub connected with private preparation for
military service. Id.
49. United States v. Tot, 131 F.2d 261 (3d Cir. 1942), rev’d, 319 U.S. 463 (1943).
50. Id. at 266.
51. See supra text accompanying notes 37–38, 41–43.
52. See Selective Draft Law Cases, 245 U.S. 366, 374–83 (1918) (holding that Congress has the
authority to abolish a state militia by bodily incorporating it into the federal army); Martin v. Mott, 25
U.S. (12 Wheat.) 19, 28–33 (1827) (holding that the President has the power to call the militia from
state control into federal service); Houston v. Moore, 18 U.S. (5 Wheat.) 1, 24 (1820) (holding that
federal militia legislation preempts state legislation); see also Perpich v. Dep’t of Defense, 496 U.S.
334, 352–54 (1990) (holding that state militias may be called into federal service over state objection).
53. Tot, 131 F.2d at 271. The court ultimately rested its opinion on the principle that it was
reasonable to forbid dangerous individuals, like the defendant, who had previously been convicted of a
violent crime, from possessing firearms, and that such a regulation did not “infringe upon the
preservation of the well regulated militia protected by the Second Amendment.” Id. at 266–67.
54. Id. at 267, 271.
lead to an increase in crime. In the coming decades, courts would continue to

avoid Miller’s militia-connection standard. Some avoided even addressing an
asserted militia nexus by maintaining that the right belonged to states.55 Others
fell further into the trap that the framers feared—that of giving government a
monopoly on the tools of violence, and the federal government in particular a
monopoly on military power56—by resigning themselves to the view that state
militias had effectively become federal entities that lost any connection to the
Second Amendment when the Dick Act created the National Guard.57 Until
Heller’s forerunners began a reversal,58 former Harvard Law School Dean
Roscoe Pound’s 1957 vision of a judicial forcing of even a militia-centric
version of the Second Amendment into desuetude had become the status quo.59
iii. Heller and Beyond

District of Columbia v. Heller addressed a claim that the District of Colum-
bia’s ban on keeping a handgun in the home for self-defense was unconstitu-
tional.60 In holding that it was,61 the Court’s analysis strongly implied that the
Second Amendment also protected arms bearing outside the home. Significantly,
a complete analysis of Heller’s reasoning must account for the Court’s
● noting that “the need for self-defense is most acute” in the home,
implying that it is acute elsewhere;62
● listing a number of “longstanding” “presumptively lawful” arms-bearing
regulations, including “longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the carrying
of firearms in sensitive places such as schools and government build-
ings, or laws imposing conditions and qualifications on the commercial
sale of arms,” without sanctioning a general ban on public carrying,
suggesting that some regulation of arms-carriage outside the home was
not presumptively lawful;63
55. United States v. Warin, 530 F.2d 103, 105–06, (6th Cir. 1976); see United States v. Oakes, 564
F.2d 384, 387 (10th Cir. 1977).
56. See Mocsary, supra note 37, at 2117, 2149, 2155–56, 2169.
57. United States v. Hale, 978 F.2d 1016, 1019 (8th Cir. 1992); United States v. McCutcheon, 446
F.2d 133, 135–36 (7th Cir. 1971); see supra note 51 and accompanying text.
58. The retreat began with United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), which declared
that the Second Amendment guaranteed an individual right to arms even absent a militia connection,
and continued with Parker v. District of Columbia, 478 F.3d 370, 379 (D.C. Cir. 2007), cert. granted
sub nom. District of Columbia v. Heller, 554 U.S. 570 (2007).
59. ROSCOE POUND, THE DEVELOPMENT OF CONSTITUTIONAL GUARANTEES OF LIBERTY 90–91 (1957).
60. Heller, 554 U.S. at 573.
61. Id. at 635. The Court also invalidated a D.C. law requiring that any firearm kept in the home be
rendered inoperable. Id.
62. Id. at 628 (emphasis added).
63. Id. at 626–27 & n.26 (emphasis added); see Michael P. O’Shea, Modeling the Second Amend-
ment Right to Carry Arms (I): Judicial Tradition and the Scope of “Bearing Arms” for Self-Defense, 61
AM. L. REV. 585, 617 (2012).
● holding that the Second Amendment protects an “individual right to

possess and carry weapons in case of confrontation” in a world where
most confrontations are not limited to the home, and it is all but
impossible for one not to leave home;64
● disaggregating the right to keep arms from the right to bear—or carry—
arms, which carrying is unlikely to refer to the home, especially given
that keeping naturally refers to one’s home;65
● relying on nineteenth century state case law that held that the right to
bear arms mandated the legality of either concealed or open public carriage.66
A thorough reading of Heller, therefore, strongly suggests that the Supreme

Court believed that the right to arms extended outside the home.
After McDonald v. Chicago declared that the Second Amendment protected a
fundamental individual right against state encroachment,67 litigation over the
scope of the right began in the lower courts. Notwithstanding Heller’s implica-
tions, courts have, at best, mildly confined government regulation of public
carry to a “may issue” permitting regime.68 At worst, they have outright defied
decades of fundamental-right jurisprudence. Of the three cases to reach federal
Courts of Appeal and hold that the challenged ban on public carry was
unconstitutional, Moore v. Madigan, Peruta v. County of San Diego, and Palmer
v. District of Columbia, only Moore resulted in the implementation of a “shall
issue” permitting system.69 Despite reluctantly acknowledging Heller’s implica-
tions in an intellectually honest manner and striking down Illinois’s ban on
public carriage, Moore explicitly sanctioned a may-issue regime.70 It was
through the political process that shall-issue concealed carry was ultimately
enacted in Illinois: A coalition71 of state legislators from Southern Illinois
insisted on both a shall-issue licensing system and statewide preemption of
local law to the contrary. They threatened not to pass any remedial legisla-
tion meeting Moore’s requirements, which would have resulted in open
carry throughout the state once Moore’s self-imposed 180-day stay of its
mandate expired.
64. Heller, 554 U.S. at 592 (emphasis added); see O’Shea, supra note 63, at 610–11.
65. Heller, 554 U.S. at 584.
66. Id. at 626; O’Shea, supra note 63, at 616.
67. McDonald v. City of Chicago, 561 U.S. 742, 767 (2010).
68. “May issue” licensing systems grant state or local government officials discretion to grant
permits to carry concealed weapons only to those who demonstrate a “need” more heightened than a
general need for self-defense. “Shall issue” systems require government officials to grant licenses to all
applicants who, typically, must pass a background check and successfully complete a firearm-safety
class.
69. Palmer v. District of Columbia, 59 F. Supp. 3d 173, 183 (D.D.C. 2014), appeal dismissed,
Palmer v. District of Columbia, No. 14-7180, 2015 WL 1607711 (D.C. Cir. Apr. 2, 2015) (mem.);
Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014), reh’g en banc granted, 781 F.3d 1106
(9th Cir. 2015); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).
70. Moore, 702 F.3d at 941.
71. The coalition was bipartisan, with Democratic legislators supplying the critical votes.
Peruta and Palmer did not fare so well. Peruta also recognized Heller’s
implications in striking California’s may-issue system, as applied by the San
Diego County Sheriff to require a specific, imminent threat against the indi-
vidual.72 The Ninth Circuit granted en banc rehearing. The en banc court upheld
California’s law, holding that even if either concealed or open carry had to be
permitted, plaintiffs challenged only the concealed-carry permitting system,
which, standing alone, was constitutional, and that the court did not have to
consider California’s ban on open carry.73 Yet, as the dissent points out,
California completely banned open carry, even licensed open carry, after plain-
tiffs’ initial challenge had been ruled on by the district court.74 Whereas
plaintiffs had a plausible mode to exercise their constitutional right to public
firearm carriage when they filed, that opportunity was foreclosed during the
pendency of their and the government’s appeals.75 The en banc majority was
unconcerned with these developments.
Palmer struck the District of Columbia’s ban on public carry. In its wake, the
District enacted a may-issue statute that required a permit applicant to demon-
strate, “at a minimum, . . . a special need for self-protection distinguishable
from the general community as supported by evidence of specific threats or
previous attacks that demonstrate a special danger to the applicant’s life . . . .”76
A lawsuit challenged the new regime, and the same district judge who decided
Palmer enjoined the new law.77 The District appealed, and the U.S. Court of
Appeals for the District of Columbia Circuit lifted the injunction.78 The D.C.
Circuit vacated the District Court’s injunction, and on remand, the District
Court found the injunctive relief was not warranted.79 Another appeal has been
filed.80
Other challenges lost outright.81 Drake v. Filko, the most defiant of these
cases, merits further discussion. At issue was New Jersey’s may-issue statute
requiring applicants for carry permits to show a “justifiable need to carry a
handgun,” by showing an “urgent necessity for self-protection, as evidenced by
specific threats or previous attacks which demonstrate a special danger to the
72. Peruta, 742 F.3d at 1152–56.

73. Peruta v. Cty. of San Diego, 824 F.3d 919, 927–28, 941–42 (9th Cir. 2016).
74. Id. at 950–52 (Callahan, J., dissenting).
75. Id. at 950–51.
76. D.C. Code § 22-4506(a) (2014).
77. Wrenn v. District of Columbia, 107 F. Supp. 3d 1 (D.D.C.), vacated, 808 F.3d 81 (D.C. Cir.
2015).
78. Wrenn v. District of Columbia, 808 F.3d 81 (D.C. Cir. 2015).
79. Wrenn v. District of Columbia, No. CV 15–162 (CKK), 2016 WL 912174 (D.D.C. Mar. 7, 2016).
80. Notice of Appeal, Wrenn v. District of Columbia, No. 16-7025 (D.C. Cir. Mar. 15, 2016).
81. Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) (upholding New Jersey’s “justifiable need”
requirement); Woolard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) (upholding Maryland’s “good and
substantial reason” requirement); Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013) (holding that
public carry “does not fall within the scope of the Second Amendment’s protections”); Kachalsky v.
Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012) (upholding New York’s “proper cause” requirement),
cert. denied sub nom. Kachalsky v. Cacace 133 S.Ct. 1806 (2013).
applicant’s life that cannot be avoided by means other than by issuance of a

permit to carry a handgun.”82 The U.S. Court of Appeals for the Third Circuit
first held that public carriage fell outside the scope of the Second Amendment’s
protection because the justifiable-need requirement was longstanding.83 Yet
even if Heller’s presumption of legality is based on the longstanding nature of a
regulation—a questionable assertion because Heller did not say that longstand-
ingness drove the presumption84—the Drake majority made no serious effort to
address plaintiffs’ arguments rebutting the presumption. It first, without address-
ing Heller’s analysis, dismissed plaintiffs’ argument that either open or con-
cealed shall-issue carry had to be permitted.85 It then concluded that the two
states’ restrictive laws were longstanding on the ground that New Jersey’s and
New York’s similar statutes had been in effect since 1924 and 1911, and that the
felon-in-possession bans sanctioned by Heller were enacted in the same era.86
But as the Drake dissent points out, New Jersey allowed open carry until 1966,
and “felon-in-possession laws have historical pedigrees that originated with the
founding generation.”87 The majority made no effort to explain away these
complications.
The Drake majority then performed what it termed “intermediate scrutiny”
analysis,88 but which closely resembled rational basis review. Under the Third
Circuit’s version of intermediate scrutiny, the state bears the burden of showing
that a given regulation does “not burden more [conduct] than is reasonably
necessary”89 in attempting to achieve its stated end. Most significantly, the court
relied entirely on the “predictive judgment of New Jersey’s legislators” that
limiting issuance of carry permits would enhance public safety.90 This predic-
tive judgment was based on “no evidence at all.”91 The majority attempted to
absolve the state from its burden by stating that, at the time that the statute in
question was passed, Heller had not yet declared the Second Amendment to be
an individual right, and that the legislators therefore could not have been
expected to know that they should marshal evidence to support their predictive
judgment.92 But a governmental entity may present, and a court may consider,
evidence outside the legislative record when evaluating a law’s constitutionality,
as was the case in another Second Amendment decision on which the Drake
82. Drake, 724 F.3d at 428.

83. Id. at 431–34.
84. District of Columbia v. Heller, 554 U.S. 570, 626–27 & n.26 (2007).
85. Drake, 724 F.3d at 433; see id., 724 F.3d at 449 (Hardiman, J., dissenting); supra text
accompanying note 68.
86. Id. at 433–34; see supra text accompanying note 63.
87. Drake, 724 F.3d at 448–50 (Hardiman, J., dissenting).
88. Id. at 435.
89. United States v. Marzzarella, 614 F.3d 85, 98 (3d Cir. 2010); Drake, 724 F.3d at 436 (citing
Marzzarella, 614 F.3d at 98). Other Circuits require a “substantial fit.” Drake, 724 F.3d at 436 n.14.
90. Drake, 724 F.3d at 437.
91. Id. at 454 (Hardiman, J., dissenting); see id. at 437–38 (citing no evidence supporting the
predictive judgment).
92. Id. at 437–38.
majority relied heavily.93 The court failed to explain why it was acceptable for
New Jersey not to present evidence to support the continued justifiability of its
prohibition.
The Third Circuit’s actions are equivalent to a court upholding, after the
ratification of the Fifteenth Amendment,94 a ban on freed slaves’ voting that was
passed before that amendment’s ratification on the ground that the legislature
that enacted the ban did not know at the time that such bans would eventually
be constitutionally prohibited. Such undercutting of Supreme Court precedent
and complacence in the face of legislative over-regulation of a fundamental
right suggests that something other than a desire to control crime is at issue, as
discussed next.
II. UNDERENFORCEMENT OF THE SECOND AMENDMENT:

RECONSIDERING THE CONSEQUENCES
Underenforcement of the Second Amendment as a constitutional norm has
produced serious distortions in the criminal-law system by enabling the overcrimi-
nalization of the malum prohibitum offense of firearm possession. This Part
describes the tactics used to make the distortions possible and the distortions’
effects on ordinary peaceable citizens.
The vast majority of existing and proposed gun laws consist of some type of
possessory offence. This has the potential to turn otherwise law-abiding, but
unknowing or overburdened, firearm owners in to status criminals. Yet these
offenses are an additional layer on top of those which already regulate the ways
in which guns may be misused—murder, rape, armed robbery, and the like are
(and should be) heavily sanctioned, and they often carry greater penalties when
committed with a firearm.95 It is difficult to imagine that one undeterred by the
sanctions for these crimes would be deterred by the potential penalty imposed
by a possessory offence with a much lower chance of detection.
Indeed, firearms, unlike many other items subject to bans, have traditional
lawful and legitimate uses, like enabling self-defense, preventing crime, and
93. Marzzarella, 614 F.3d at 100 (relying on a post-enactment study to determine whether a statute
was a reasonable fit with the legislature’s intent to prevent gun violence); see Nixon v. Shrink Mo.
Gov’t PAC, 528 U.S. 377, 393–95 (2000) (considering third-party evidence where “Missouri does not
preserve legislative history”); Randall v. Sorrell, 548 U.S. 230, 253–56 (2006) (considering post-
enactment research and expert testimony developed specifically for litigation); United States v. Carter,
750 F.3d 462, 467–68 (4th Cir. 2014) (relying on post-enactment evidence to assess the merits of a
Second Amendment claim); Moore v. Madigan, 702 F.3d 933, 937–41 (7th Cir. 2012) (same); United
States v. Reese, 627 F.3d 792, 802–04 (10th Cir. 2010) (same); United States v. Yancey, 621 F.3d 681,
686 (7th Cir. 2010) (same). The Drake majority cited Marzzarella twenty-three times.
94. The Fifteenth Amendment provides in relevant part that “[t]he right of citizens of the United
States to vote shall not be denied or abridged by the United States or by any State on account of race,
color, or previous condition of servitude.” U.S. CONST. amend. XV § 1.
95. Compare, e.g., 720 ILL. COMP. STAT. 5/11-1.20 (criminal sexual assault), with 720 ILL. COMP. STAT.
5/11-1.30 (aggravated criminal sexual assault).
keeping harmful wild-animal populations in check.96 They also have positive

values associated with them, like civic duty, self-sufficiency, self-discipline, and
sportsmanship.97 This has been recognized by both the U.S. Supreme Court, and
by the District of Columbia Court of Appeals in striking down a D.C. ordinance
making it a felony to be present in a motor vehicle knowing that it contained a
firearm:
[G]iven the “long tradition of widespread lawful gun ownership by private

individuals in this country,” the recent definitive recognition of a Second
Amendment right to possess guns for self-protection, individuals (especially
visitors from other jurisdictions) who do not happen to be well-versed in the
intricacies of the District’s firearms laws may not see anything wrong in the
presence of a gun or realize that the local law may proscribe its possession or
transportation.98
96. The last item in this list may be counterintuitive to some. Yet to farmers, ranchers, states, and
others whose economic well-being and safety are affected, controlling wild animals is exceedingly
important. See, e.g., GA. DEP’T. OF NATURAL RES., AN ASSESSMENT OF THE DEER POPULATION ON JEKYLL
ISLAND, GEORGIA AND THE MANAGEMENT IMPLICATIONS 12–13 (2011), http://www.savejekyllisland.org/dnr_
deer_management_plan.pdf (stating that deer overpopulation was resulting in deer attacks on humans,
vehicle collisions, landscaping damage, and other problems, and promoting sharpshooting and hunting
as the preferred and cost-effective ways to control the number of deer); William F. Allan & Joann K.
Wells, Characteristics of Vehicle-Animal Crashes in Which Vehicle Occupants Are Killed, 6 TRAFFIC
INJURY PREVENTION 56, 56–59 (2005) (reporting that vehicle-deer collisions cause about 200 deaths and
$1.1 billion in property damage per year); State Wildlife Bounty Laws by State, BORN FREE USA,
http://www.bornfreeusa.org/b4a2_bounty.php (last visited Mar. 5, 2014) (listing state bounties on
harmful animals). And then there are wild pigs, which are notoriously destructive and have led some
states to adopt liberal hunting policies where they are concerned. See, e.g., Damage by Pigs, MISS.
ST. UNIV. (June 27, 2013), http://wildpiginfo.msstate.edu/damage-caused-by-pigs.html (estimating
annual agricultural and environmental damage at $1.5 billion); Rules for Shooting Feral Swine,
M ICH . D EP ’ T N ATURAL R ES ., http://www.michigan.gov/dnr/0,4570,7-153-10370_12145_55230-
230093—,00.html (last visited Feb. 17, 2014) (explaining that Michigan allows the year-round
shooting of wild pigs).
97. See, e.g., President Theodore Roosevelt, Sixth Annual Message to Congress (Dec. 6, 1906) (“We
should establish shooting galleries in all the large public and military schools, should maintain national
target ranges in different parts of the country, and should in every way encourage the formation of rifle
clubs throughout all parts of the land. The little Republic of Switzerland offers us an excellent example
in all matters connected with building up an efficient citizen soldiery.”); President Theodore Roosevelt,
Seventh Annual Message to Congress (Dec. 3, 1907) (“While teams representing the United States won
the rifle and revolver championships of the world against all comers in England this year, it is
unfortunately true that the great body of our citizens shoot less and less as time goes on. To meet this
we should encourage rifle practice among schoolboys, and indeed among all classes, as well as in the
military services, by every means in our power. Thus, and not otherwise, may we be able to assist in
preserving the peace of the world. Fit to hold our own against the strong nations of the earth, our voice
for peace will carry to the ends of the earth. Unprepared, and therefore unfit, we must sit dumb and
helpless to defend ourselves, protect others, or preserve peace. The first step—in the direction of
preparation to avert war if possible, and to be fit for war if it should come—is to teach our men to
shoot.”).
98. Conley v. United States, 79 A.3d 270, 285 (D.C. 2013) (quoting Staples v. United States, 511
U.S. 600, 610 (1994) (internal citations omitted)).
The Supreme Court has also held that the AR-15 rifle, the nation’s most
commonly owned style of rifle,99 was not of such “quasi-suspect character” that
it would be acceptable to dispense with a mens rea requirement in a statute
making it illegal to own one that fired more than one round per trigger pull.100
Nevertheless, many legislators and gun-control organizations endeavor to
demonize both firearm owners and certain types of firearms. It is easier to
convince the public that disfavored individuals and objects should be targeted
by regulation. The next section discusses an example of how mass demoniza-
tion of some semi-automatic rifles and their owners has been implemented in
the public sphere. The section following the next discusses overcriminalization.
A. “Assault Weapons”—The Quintessential Demonization Campaign

Possession of most semi-automatic101 rifles is not regulated by the federal
government or the states. Some states require permits for semi-automatic pistol
possession, and most require it for carrying. Some semi-automatic firearms,
however, have been designated “assault weapons”102 by a number of states and
localities and thus regulated or banned. The first point to note is that assault
weapons are not machine guns; they function identically to other semi-
automatic rifles. Yet they have been demonized, along with their owners, via
decidedly underhanded tactics.
In the mid-1980s Josh Sugarmann of the Violence Policy Center found that
neither Americans nor the media were interested in banning handguns. A
staunch gun-control proponent, he searched for “a new topic in what has
become to the press and public an ‘old’ debate.”103 He came up with the term
“assault weapon” and reasoned that:
Assault weapons—just like armor-piercing bullets, machine guns, and plastic

firearms—are a new topic. The weapons’ menacing looks, coupled with the
public’s confusion over fully automatic machine guns versus semi-automatic
assault weapons—anything that looks like a machine gun is assumed to be a
machine gun—can only increase the chance of public support for restrictions
on these weapons.104
99. NRA-ILA, Not Quite All “The Facts” About the AR-15. https://www.nraila.org/articles/20131108/
not-quite-all-the-facts-about-the-ar-15 (“[T]he AR-15 is ‘America’s most popular rifle’ . . . based upon
recent firearm manufacturer reports showing that between 300,000 and 500,000 AR-15s are made
annually for sale to the public . . . . Americans own about five million AR-15s”) (quoting Brian Jones,
Another AR-15 Rampage? Here Are The Facts About America’s Most Popular Rifle, BUS. INSIDER (Nov.
1, 2013 3:08 PM), http://www.businessinsider.com/assault-rifle-weapon-ar-15-2013-11).
100. Staples, 511 U.S. at 618–19. Mr. Staples’s AR-15 sometimes fired more than one round per
trigger pull because of a defect.
101. A semi-automatic firearm fires one cartridge with each pull-and-release of the trigger.
102. “Assault rifle” is a related term.
103. Josh Sugarman, Violence Policy Ctr., Assault Weapons and Accessories in America (1988), http://
www.vpc.org/studies/awacont.htm (click on “Conclusion” hyperlink).
104. Id. (emphasis added).
His strategy of relying on the public’s confusion to further his agenda

worked.105 Seven states, the District of Columbia, and a few localities106
regulate or ban so-called assault weapons and the federal government regulated
them from 1994 to 2004.107 Firearms are characterized as assault weapons
based almost entirely on having external attachments—like a vertical grip; a
metal covering over the barrel to reduce burns; or a muzzle attachment that
reduces the recoil, the flash of light associated with firing a rifle, or both—that
do not change how the gun operates.108 The few covered features that a criminal
shooter might use during a crime, like the ability to accept a bayonet, are non
sequiturs—criminal bayonetings are unheard of.109
After Connecticut made its assault-weapon ban stricter in the wake of the
atrocity at Newtown, Connecticut, one of this Article’s authors was interviewed
by local media for his opinion on the new law.110 Referring to the law’s
Sugarmannesque “physical characteristics test,” he opined that the law should
be unconstitutional because the test banned weapons based on arbitrary fea-
tures.111 The Governor’s office replied that: “There’s something unique about
these weapons. [1] They’re lightweight, [2] designed for military purposes, and
[3] can fire a lot of bullets very quickly.”112 Anyone with a basic understanding
of firearms, as one would expect the Governor’s Undersecretary for Criminal
105. See Bruce H. Kobayashi & Joseph E. Olson, In Re 101 California Street: A Legal and
Economic Analysis of Strict Liability for the Manufacture and Sale of “Assault Weapons”, 8 STAN. L. &
POL’Y REV. 41, 43 (1997). This is not the first time that a class of weapons has been demonized. In the
1960s it was bolt-action military surplus rifles. In the 1970s it was handguns. In the 1980s it was
“Saturday night specials.”
106. The states are California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, and New
York. The localities include Chicago, Illinois; Cook County, Illinois; Highland Park, Illinois; Gary,
Indiana; East Chicago, Indiana; New York City; and Boston.
107. 18 U.S.C. § 922(v), amended by Public Safety and Recreational Firearms Use Protection Act,
1994, Pub. L. 103–322, § 110102(c), 108 Stat. 1796, 1996, repealed by Pub. L. 103–322 § 110105(2),
108 Stat. 1796, 2000.
108. CONN. GEN. STAT. § 53-202a (2013). Although some of these attachments are useful to persons
using firearms for lawful self-defense, there is no evidence that such attachments increase a criminal’s
ability to commit a crime. A flash suppressor, for example, and as the name implies, suppresses the
muzzle flash that occurs when a gun is fired. A barrel shroud prevents a firearm’s operator from being
burned by a firearm’s potentially hot barrel. Neither assists materially, if at all, in the typical criminal
shooting where the shooter may not fire many rounds, may not expect to survive the encounter, and is
typically out in the open during the day rather than shooting from the cover of darkness. One might
argue that these features are functional because some users will prefer them to others. But this is true of
any physical feature on any firearm. A user will use the gun with which he or she is most comfortable
because of stature, arm length, and the like, and can afford. The point is that the bullet fired from the
weapon is no more dangerous than the bullet fired from a weapon without the proscribed features.
109. Internet searches on google.com and duckduckgo.com for “criminal bayoneting” and “bayonet-
ing” yielded no crimes committed by bayonet.
110. Hugh McQuaid, Challenges Mulled as Gun Bill Becomes Law, CTNEWSJUNKIE (Apr. 4, 2013),
http://www.ctnewsjunkie.com/archives/entry/challenges_mulled_as_gun_bill_becomes_law/.
111. Id. He also correctly noted that a northeastern court would not likely strike the law. Shew v.
Malloy, 994 F. Supp. 2d 234, 239 (D. Conn. 2014); Hugh McQuaid, Second Challenge To CT’s New
Gun Law Filed, CTNEWSJUNKIE (May 22, 2013), http://www.ctnewsjunkie.com/archives/entry/
second_challenge_to_cts_new_gun_laws_filed/.
112. McQuaid, supra note 110.
Justice Policy113 to have, will recognize the falsity in this statement: (1) Physics
dictates that adding a piece of metal to the rifle—like a barrel shroud, vertical
pistol grip, or bayonet mount—will make it heavier; (2) the firearms in question
are in fact not the machine guns used by the military, but rather semi-automatic
weapons with selected demonized features;114 and (3) the banned weapons can
fire as rapidly as they could without the banned features. The Governor’s office
has, therefore, indirectly admitted that its law, at best, will not affect the results
of unlawful shootings.115
Some are willing to go further, demonizing assault weapon owners. The
rhetoric ranges from asserting that “there is no legitimate use for these weap-
ons”116 to suggesting that “the only people who use them are mass murder-
ers.”117 This is by definition false. The AR-15 style of rifle, which is on
practically every assault-weapon list, has been owned by several million per-
fectly law-abiding Americans since it became available to the public in 1963.118
Demonizing firearms and their owners makes it possible to target them with
criminalization tactics that decent people would not ordinarily consider accept-
able, as the next section discusses.
B. Overcriminalization
Gun-control laws have a tendency of turning into criminals peaceable citizens
whom the state has no reason to have on its radar. This suggests that the motive
for these laws is more a kind of cultural imperialism than a real hope that the
measures they seek to impose will reduce crime. They are malum prohibitum
offenses119 that ostensibly seek to prevent already-prohibited secondary con-
duct120 and sometimes impose penalties greater than those for heinous malum in
113. Id.
114. See supra text accompanying notes 101–07.
115. The law may in fact cause criminals to use lighter weapons, working against the Governor’s
office’s stated goals of restricting lightweight weapons.
116. Press Release, Office of Sen. Chuck Schumer, Warner, Dewine, And Chafee Join Feinstein &
Schumer In Effort To Renew Assault Weapons Ban (Feb. 24, 2004), https://www.legistorm.com/stormfeed/
view_rss/391373/member/85.html.
117. Debate Between Rep. Wiliam McColluym and Sen. Charles Schumer, Lifting the Ban?, PBS
(Mar. 21, 1996), available at http://www.freerepublic.com/focus/news/1033940/posts; see, e.g., 159
CONG. REC. S2717 (daily ed. Apr. 17, 2013) (statement of Sen. Menendez) (“There is simply no
rationale for having these weapons on our streets—unless your intent is to inflict terror and destruction
and mass casualties.”); BRADY CENTER TO PREVENT GUN VIOLENCE, ASSAULT WEAPONS: “MASS PRODUCED
MAYHEM” (2008), available at http://www.bradycampaign.org/sites/default/files/mass-produced-mayhem.
pdf (“[W]hy should civilians be allowed to wield these weapons of war?”); see generally id.
It should be noted that so-called assault weapons are used in a small fraction of criminal shootings.
CHRISTOPHER S. KOPER ET AL., JERRY LEE CENTER OF CRIMINOLOGY, AN UPDATED ASSESSMENT OF THE
FEDERAL ASSAULT WEAPONS BAN: IMPACTS ON GUN MARKETS AND GUN VIOLENCE, 1994–2003, at 2 (2004),
available at https://www.ncjrs.gov/pdffiles1/nij/grants/204431.pdf (“AWs were used in only a small
fraction of gun crimes prior to the [1994] ban: about 2% according to most studies and no more than
8%.”).
120. See supra text accompanying note 95.
se offenses.121 The statutes are often easy for the unknowing to violate, and they
impose exceedingly harsh penalties.
Federal law makes it illegal for felons, those under indictment for felony
charges, domestic-violence misdemeanants, users of controlled substances, adju-
dicated “mental defectives,” illegal aliens, dishonorable dischargees, renouncers
of US citizenship, and some under restraining orders against intimate partners,
to possess firearms.122 These are, for the most part, uncontroversial. It is
nevertheless unnerving that citizens, on average, apparently commit three felo-
nies per day,123 and that the mean felon-in-possession sentence is in almost all
years greater than five years imprisonment.124 Some at the Bureau of Alcohol,
Tobacco, Firearms and Explosives consider it the agency’s “‘bread-and-butter’
violation.”125
The Migratory Bird Treaty Act provides what is almost a caricature of how
easy it is to become a federal felon. The act outlaws, inter alia, the possession,
sale, and barter of any bird, or feather thereof, covered by the Act.126 The
penalty for feather possession is a strict-liability misdemeanor, while the pen-
alty for knowingly bartering a feather is a felony punishable by up to two years’
imprisonment and $2,000.127 The Act’s mens rea requirement refers only to “the
putative offender’s actions rather than to the legality of those actions,” leaving
“no room for ignorance of the law.”128 In other words, a husband and wife who,
walking down the street on a lazy Sunday morning pick up two interesting
feathers, shed by a bird in flight that no longer needs them, become subject to
misdemeanor indictment. If they find that each likes the other’s feather more
than the one that he or she picked up, and they exchange feathers, they become
subject to felony indictment, a lifetime firearm ban, and several years in prison
if they possess a gun.
Although federal law does not generally mandate firearm registration,129

122. 18 U.S.C. §922(g) (2010).
123. See HARVEY SILVERGLATE, THREE FELONIES A DAY: HOW THE FEDS TARGET THE INNOCENT (2011).
124. 18 U.S.C. § 924; Kevin A. McDonald, Felon in Possession Sentencing Under The Federal
Guidelines, Considering State Sentences, 36 SETON HALL LEGIS. J. 106, 129 (2011).
125. McDonald, supra note 124, at 108 (quoting JAY DOBYNS & NILS JOHNSON-SHELTON, NO ANGEL:
MY HARROWING UNDERCOVER JOURNEY TO THE INNER CIRCLE OF THE HELLS ANGELS 10 (2010)).
126. 16 U.S.C. § 703.
127. 16 U.S.C. § 707.
128. United States v. Pitrone, 115 F.3d 1, 7 (1st Cir. 1997); accord United States v. Engler, 806 F.2d
425, 431–36 (3d. Cir. 1986); United States v. Gayhart, 827 F. Supp. 2d 736, 738 & n.1 (E.D. Ky. 2011).
The Courts of Appeals are not in complete agreement about the constitutionality of the Act’s lack of a
scienter requirement. See, e.g., United States v. CITGO Petroleum Corp., 801 F.3d 477, 488–89 (5th
Cir. 2015) (agreeing with the Eighth and Ninth Circuits that that the Act addresses only intentional
behavior and rejecting the views of the Second and Tenth Circuits to the contrary). Although this split
among the courts focuses primarily on the Act’s restrictions on “kill[ing]” or “tak[ing]” a migratory
bird, rather than its prohibitions on “sell[ing]” or “barter[ing],” it does suggest that courts are concerned
about the overcriminalization of activities covered by the Act. 16 U.S.C. §§ 703, 707.
129. Most notably, fully automatic weapons, short-barreled rifles and shotguns, silencers, and
weapons like grenades “deemed destructive” devices must be registered with the Department of the
some states and localities do. Registration is usually required only for handguns
and so-called assault weapons, but some jurisdictions, like New York City,
require registration of all firearms.130 Others, like Massachusetts, mandate
registration of firearm owners.131 Anyone who does not register becomes a
status criminal upon coming into possession of a firearm, with potentially
appalling consequences. Massachusetts, whose Fox-Bartley Law imposes a
mandatory one-year sentence for unlicensed carriage of a firearm, provides a
stark example.
In 1986, Sylvester Lindsey was sentenced to a mandatory one-year prison
term for carrying a handgun that he used to defend himself from a knife-
wielding attacker after that attacker, a convicted felon, had previously threat-
ened him and attacked him with a knife.132 The jury found him guilty of
unlawful carrying of a firearm.133 The Supreme Judicial Court first held that the
defense of necessity was not available to Lindsey because the previous attacks
and threats were not immediate enough to warrant them.134 But it then noted
that “[t]he threat of physical harm was not a general one,” that Lindsey may
have saved his life by using his gun to defend himself, and that he was an
upstanding citizen, but that the courts had no choice but to imprison him for a
year.135 Three years later, a Massachusetts trial court, unhindered by a mandatory-
sentence requirement, imposed a suspended sentence on a 44 year-old man for
twice raping an eight-year-old girl.136 Similar sentencing for rapists (including
child rapists) and violent attackers continues in Massachusetts.137 A legal
regime that is willing to imprison a disfavored Lindsey while allowing child
rapists to be free strongly suggests that, at least for some,
Treasury. 26 U.S.C. § 5841. Some states prohibit possession of such weapons. E.g., 720 ILL. COMP. STAT.
5/24-1(a)(7).
130. E.g., N.Y.C. ADMIN. CODE § 10–131 (mandating registration of all firearms).
131. MASS. GEN. LAWS ch. 140, § 129B (requiring would-be owners to obtain a firearm identification
card).
132. Commonwealth v. Lindsey, 489 N.E.2d 666, 669 (Mass. 1986).
133. Id. at 666.
134. Id. at 667. It “became a real and direct danger once again,” according to the court, when the
defendant was attacked the second time. Id. at 669.
135. Id. at 669.
136. See Richard Kindleberger, Ruling in Beverly Assault Case Leaves Scars, BOS. GLOBE, Mar. 26,
1989, at 25.
137. E.g., Alyssa Dandrea, Massachusetts Man Sentenced in Franklin Pierce University Sexual
Assault, SENTINELSOURCE.COM (Apr. 29, 2015), http://www.sentinelsource.com/news/local/massachusetts-
man-sentenced-in-franklin-pierce-university-sexual-assault/article_039f98b9-4fe5-5c4b-a66a-2618
d061a4f8.html (suspended sentence for misdemeanor sexual assault and second-degree felony assault);
Rape Victim Sues Massachusetts for Forcing Her into Relationship with Attacker, RT.COM (Aug. 22,
2013), https://www.rt.com/usa/rape-victim-sues-massachusetts-855/ (suspended sentence for child rap-
ist); Regional Digest, WORCESTER TELEGRAM & GAZETTE, Sept. 5, 2008, at B2 (probation and monitoring
for two counts of indecent sexual assault and battery; probation and monitoring for indecent assault and
battery on a person 14 or older, rape of a child with force, and statutory rape of a child).
Gun control is a moral crusade against a benighted barbaric citizenry. This is

demonstrated . . . by the ineffectualness of gun control in preventing crime,
and by the fact that it focuses on restricting the behavior of the law-abiding
rather than apprehending and punishing the guilty . . . . Gun owners are
routinely portrayed as uneducated, paranoid rednecks fascinated by and prone
to violence . . . .
When columnist Carl Rowan preaches gun control and uses a gun to defend
his home, when Maryland Gov. William Donald Schaefer seeks legislation
year after year to ban semiautomatic “assault weapons” whose only purpose,
we are told, is to kill people, while he is at the same time escorted by state
police armed with large-capacity 9mm semiautomatic pistols, it is not simple
hypocrisy. It is the workings of that habit of mind possessed by all superior
beings who have taken upon themselves the terrible burden of civilizing the
masses . . . .138
For Mr. Lindsey, the relatively new adage of preferring to be judged by twelve
than carried by six became all too real.
New York’s SAFE Act is close to a worst-case scenario for gun owners. It is
best known for its assault-weapon ban, but it also makes it illegal both to own
magazines capable of holding more than ten rounds of ammunition and to load
such magazines with more than seven rounds.139 There is an exception, how-
ever, to the seven-round limit for shooting-sports participants140 that illustrates
the elitist underpinnings of much of modern gun control: The law makes it a
felony to load eight or more rounds into a magazine to defend oneself at
home,141 while completely accommodating the playing of a game.142 An official
from the Governor’s office remarked of the Act’s recently enacted registration
requirement that “[m]any of these assault-rifle owners aren’t going to register;
we realize that,” and he acknowledged “widespread violations” of the law.143 In
the process of acknowledging that its law will not work, in other words, the
Governor’s office also acknowledged that it was prepared to turn the otherwise-
138. Jeffrey R. Snyder, A Nation of Cowards, 113 PUB. INT. 40, 46–47 (1993).
139. N.Y. PENAL LAW § 265.00(23), 265.37 (McKinney 2013).
140. Id. § 265.20.7-f.
141. Id. § 265.37.
142. Cf. Michael P. O’Shea, The Steepness of the Slippery Slope: Second Amendment Litigation in
the Lower Federal Courts and What It Has to Do with Background Recordkeeping Legislation, 46
CONN. L. REV. 1381, 1401 (2014). In rare fashion, the U.S. Court of Appeals for the Second Circuit
declared this provision of the Act unconstitutional because “New York has failed to present evidence
that the mere existence of this load limit will convince any would-be malefactors to load magazines
capable of holding ten rounds with only the permissible seven.” N.Y. State Rifle and Pistol Ass’n v.
Cuomo, 804 F.3d 242, 264 (2d Cir. 2015).
143. Fredric U. Dicker, Hit Us with Your Best Shot, Andy!, N.Y. POST (Jan. 21, 2013), http://
nypost.com/2013/01/21/hit-us-with-your-best-shot-andy/; see also George A. Mocsary, Insuring Against
Guns?, 46 CONN L. REV. 1209, 1259 (2014) “Many firearm owners fear registration because they
believe that it is a prerequisite to firearm confiscation . . . . Such a concern is understandable given the
admissions to this effect by proponents of . . . gun control, and that ‘[t]he progression from registration
to confiscation has occurred both domestically and internationally.’”
law-abiding owners of an estimated one million of these demonized weapons144

into status criminals.
A few additional examples characterize the overcriminalization problem. In
2006 Corporal Melroy Cort, a veteran of the United States Marine Corps, was
arrested for having an unregistered pistol in the District of Columbia. Cort lost
both his legs as a result of injuries suffered from an improvised explosive
device145 during his third tour of duty in Iraq. He was confined to a wheelchair.
He was going to Walter Reed Army Hospital in the District of Columbia, and he
had a permit to carry his pistol in his home state of Ohio. According to Cort, his
commanding officer had advised him that he could bring the pistol from Ohio to
D.C. as long as he put the pistol in Walter Reed’s armory upon reaching the
facility. The firearm was discovered after Cort and his wife got a flat tire and he
pulled into a repair shop. Reluctant to leave the gun alone with the repair shop
crew, Cort put the weapon in his jacket pocket. Someone saw this and called the
police. Cort was arrested.146
Cort was charged with three counts of carrying a pistol without a license,
possession of an unregistered firearm, and possession of ammunition. The D.C.
Attorney General’s Office, which handles prosecutions for local offenses in
Washington, had the discretion not to prosecute or to prosecute only on misde-
meanor charges. It decided to charge the disabled veteran with a felony. The
consequences of a felony conviction would have meant not only time in prison
but also the loss of his veteran’s benefits. Cort was assigned a public defender
who advised him to plead guilty. Fortunately, the gravely wounded Marine
decided to represent himself. In his own words: “I wasn’t going to plead guilty
and lose everything.” At trial the judge ordered him to stick strictly to the facts
of his arrest and his possession of the pistol. Cort nonetheless managed to get
enough of the surrounding information—his good record, his permit, his wounds
in the service of his country—to the jury. It probably helped that Cort was in a
wheelchair. If the police, the prosecutors and the judge could not see rank
injustice when it stared them in the face, twelve ordinary citizens could. The
jury acquitted Cort on all charges except for the misdemeanor of illegally
possessing ammunition. The prosecutor’s attempt to, in effect, destroy a decent
man, who had been confused about the law’s requirements and who had lost far
too much in the service of the nation, had failed. Cpl. Cort returned to his wife
and three-month-old daughter in Ohio.147
Ronald Dixon was also a veteran. Unlike Cort, but similar to most veterans,
his service did not result in life altering injuries. Mr. Dixon, a Jamaican
immigrant, had served in the Navy and later went on to a civilian career as a
computer engineer. In 2003, he moved from Florida to New York City, bringing
144. Id. The Act prohibits disclosure of the number of weapons registered.
145. Improvised explosive devices are commonly referred to as IEDs.
146. Keith Alexander, Marine Amputee Acquitted on Gun Possession Charge, WASH. POST (Jan. 14,
2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/01/13/AR2009011302840.html.
147. Id.
with him a pistol he had owned in the southern state. New York City has highly
restrictive licensing requirements with what are, for many, prohibitive fees to
own a gun in one’s dwelling. These fees are combined with a review and
approval period that frequently takes six months or more to run its course. The
whole process is designed to make it prohibitive for ordinary citizens to own
firearms for self-defense, even in the home. Despite Heller and McDonald, the
U.S. Court of Appeals for the Second Circuit sanctioned this regime of restric-
tive firearms regulation as constitutional.148
On Saturday, December 14, 2002, Dixon shot and wounded Ivan Thomp-
son—a burglar who had, according to press accounts, a fourteen-page rap sheet
including burglary and larceny. Thompson broke into Dixon’s house at 7:30
A.M. while Dixon’s twenty-three-month-old son and eight-year-old daughter
were sleeping. The shooting was justified. Indeed, then Brooklyn District
Attorney Charles Hynes declared, “Clearly he [Dixon] was justified in shooting
this burglar, and the burglar is going to get as much jail time as we can get
him.” Despite this, the New York prosecutor was determined to prosecute Dixon
for illegal possession of a pistol. Initially the Brooklyn District Attorney wanted
Dixon to accept a plea bargain and serve four weekends in New York’s
notorious and dangerous Rikers Island prison, a deal that Dixon turned down.
The case gained notoriety on the conservative talk show circuit, including on
Fox News’s then popular “Hannity and Colmes” show, which featured a debate
format between a conservative and liberal news commentator. Dixon was finally
allowed to plead guilty to disorderly conduct and serve a three-day sentence.
The agreement ensured that Dixon would not have a criminal record. If New
York’s strict laws concerning simple possession of a pistol in the home were
designed to prevent violent criminals from getting their hands on dangerous
weapons, in Mr. Dixon’s case they ensnared a man who even authorities
recognized was exercising the most basic of human rights, defending his home
and family. The media hue and cry, the publicizing of an obviously absurd
application of the law, probably played a key role in preventing an egregious
miscarriage of justice.149
Our final example involves the New Jersey case of Shaneen Allen. Ms. Allen
is a black mother of two young children who worked as a phlebotomist.150 A
resident of Philadelphia, Ms. Allen had a Pennsylvania permit to carry a pistol.
In October of 2013, she was driving in Atlantic County, New Jersey, when she
was stopped by a police officer for an unsafe lane change. She informed the
officer that she had a pistol in the car and that she had a Pennsylvania permit.
148. Kwong v. Bloomberg, 773 F.3d 160, 168 (2d Cir. 2013).
149. Patrice O’Shaughnessy, Gun-Ho for Brooklyn Dad: Intruder Shooter’s New Hero to Many, N.Y.
DAILY NEWS (Feb. 2, 2003), http://www.nydailynews.com/archives/news/gun-ho-brooklyn-dad-intruder-
shooter-new-hero-article-1.666088; Neil S. Friedman, No Criminal Record for Canarsie Dad Who Shot
Burglar, CANARSIE COURIER (Jun. 26, 2003), http://www.canarsiecourier.com/news/2003-06-19/TopStories/
010.html.
150. A phlebotomist is a medical technician who specializes in drawing blood.
She was arrested for violating New Jersey’s strict gun control laws under which
almost no ordinary citizens get licenses to carry firearms.151
Shaneen Allen’s mistake was believing that her Pennsylvania permit, like her
driver’s license, would be valid in other states. It was not, and as we all learned,
even before first year criminal law, “ignorance of the law is no excuse.” But
Allen’s case should give one pause about applying that ancient maxim too
rigorously. Perhaps in some dark, distant past, the maxim made perfect sense.
Crimes consisted of actions that were universally (the efforts of our undergradu-
ate anthropology instructors notwithstanding) regarded as evil. The law, using
Latin, called such crimes malum in se, inherently evil.152 The law could quite
reasonably say that a defendant did not have to consult the penal code to realize
that murder, rape, or robbery were crimes. And the defendant’s claim that he
was ignorant of the prohibitions against such actions could reasonably and
summarily be dismissed. But crimes which are simply malum prohibitum?153
One state requires that authorities issue permits to carry pistols to all individuals
who do not have disqualifying felony records, another employs a very restric-
tive licensing regime essentially depriving all but an elite few of the privilege of
carrying firearms for self-protection, while a third state allows firearm carriage
without any permit. Confusion in this regard is not the kind of malicious intent
that should qualify for a felony conviction.
Atlantic County prosecutor Jim McClain, however, was not receptive to
Allen’s mistake-of-law excuse. Nor was he inclined to go easy on the mother of
two who had no prior criminal record. McClain had the option of recommend-
ing that Allen be placed in a diversionary program for first time offenders of
victimless crimes. If placed in that program, she could have avoided jail time.
Instead, McClain was going forward with a prosecution that would have
resulted in a three-year prison sentence for Ms. Allen. That sentence would have
caused the devastating loss of her children and her job.154
Yet McClain was not always so unaccommodating toward defendants to
diversionary programs. When Baltimore Ravens Running Back Ray Rice punched
and knocked-out his wife in an Atlantic City Hotel, McClain was willing to let
the NFL player enter a diversionary program and avoid prison. For the Philadel-
phia medical technician and mother who misunderstood what her permit al-
lowed, the New Jersey prosecutor was inclined to be less charitable.155
151. Radley Balko, Shaneen Allen, Race and Gun Control, WASH. POST (Jul. 22, 2014), https://
www.washingtonpost.com/news/the-watch/wp/2014/07/22/shaneen-allen-race-and-gun-control/.
154. Id.
155. Radley Balko, Prosecution of Shaneen Allen Moves Forward, WASH. POST (Aug. 7, 2014),
https://www.washingtonpost.com/news/the-watch/wp/2014/08/07/prosecution-of-shaneen-allen-moves-
forward/; Glenn Harlan Reynolds, Carrying a Gun Worse than Beating Your Wife, USA TODAY (Aug.
10, 2014), http://www.usatoday.com/story/opinion/2014/08/10/ray-rice-shaneen-allen-gun-column/
13862831/.
A statement by one New Jersey gun control advocate, Brian Miller, gives an
indication that one reason for the harsh application of the state’s gun control
statute is pure deterrence divorced from balancing considerations of justice or
proportionality, or even a strong connection between applied means and desired
ends:
Fortunately, the notoriety of this case will make it less likely Pennsylvanians
will carry concealed and loaded handguns in New Jersey, thereby making
them and the Garden State safer from gun violence.156
The Shaneen Allen story would ultimately have a happy ending, but once
again that happy ending had at least as much to do with the case’s notoriety and
political considerations as it did with safeguards built into the law. The case
attracted nationwide media coverage. That coverage undoubtedly caused Dis-
trict Attorney Jim McClain to reconsider allowing Allen to participate in the
diversion program. On April 2, 2015, Governor Chris Christie pardoned Sha-
neen Allen. To what extent the pardon was motivated by Governor’s Christie’s
efforts at the time to get the Republican nomination for president, and to what
extent it was prompted by the merits of the case, will probably never be fully
known. In any event, the Philadelphia mother’s ordeal was over.157
Some observers might argue that we should be able to count on a certain
amount of reasonable behavior on the part of law enforcement charged with
applying the law. Police and prosecutors presumably have discretion precisely
because we want them to concentrate their efforts on dangerous criminals, not
people who have committed otherwise harmless technical violations of the law
or, worse, people who have made legal mistakes through inadvertent errors. As
the preceding examples illustrate, the record in many firearms-restrictive jurisdic-
tions indicates a willingness to zealously prosecute—and indeed attempt to
destroy the lives of—essentially peaceable citizens caught up in technical
violations of firearms laws. Whether these efforts are motivated by a genuine—
although in our view misguided—concern for public safety, or by the fact that
police and prosecutors see peaceable citizens as easy targets that can allow law
enforcement agencies and District Attorney’s offices to pad both arrest and
conviction records, we cannot say. In any event, the failure of the Courts to
robustly enforce Second Amendment rights has left ordinary citizens, who live
their lives with no intent to harm others and who have not taken any actions that
have brought or threaten injury to their fellow citizens, vulnerable to the full
weight of the criminal justice system.
156. Balko, supra note 151.

157. Prosecutor: Shaneen Allen Can Enter Diversion Program, ASSOCIATED PRESS (Sept. 25, 2014),
available at http://nj1015.com/prosecutor-shaneen-allen-can-enter-diversion-program/; Charles C. W.
Cooke, Governor Christie Pardons Shaneen Allen, NAT’L REVIEW (Apr. 2, 2015), http://www.nationalre-
view.com/corner/416383/governor-christie-pardons-shaneen-allen-charles-c-w-cooke.
CONCLUSION
The criminalization tactics discussed herein are not a recent discovery. Queen
Elizabeth I, in a 1600 proclamation, said that guns were being carried by
“common and ordinary persons traveling the highway,” whom she equated with
“ruffians & other lewd and dissolute men.”158 In 1415, crossbows were de-
nounced as nefarious weapons of highwaymen, and Kings Henry VII and Henry
VIII banned them for all but the wealthy; the Swiss, meanwhile, treated the
crossbow as an iconic weapon of national independence.159
It is no justification to point to an absolute number of firearm injuries to
support the notion that banning private gun ownership would make everyone
safer. There is a great deal of disagreement among experts about the effect of
private firearm ownership on unlawful shootings and crime deterrence.160 The
frequency of firearm accidents is miniscule when compared to deaths and
injuries from other sources or to the size of the American population.161
158. 3 TUDOR ROYAL PROCLAMATIONS 218 (Dec. 21, 1600).

159. JOHNSON ET AL., supra note 22, at 82.
160. Notable works finding that private firearm ownership has beneficial effects include JOHN R.
LOTT, JR. MORE GUNS, LESS CRIME (3d ed. 2010) (finding that private firearm ownership leads to less
crime); Gark Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of
Self-Defense with a Gun, 86 J. CRIM. L. & CRIMINOLOGY 150 (1995) (estimating 2,549,862 defensive
gun uses (DGUs) per year). On the other side are Ian Ayres & John J. Donohue III, Shooting Down the
“More Guns, Less Crime” Hypothesis, 55 STAN. L. REV. 1193 (2003); Philip J. Cook, Jens Ludwig &
David Hemenway, The Gun Debate’s New Mythical Number: How Many Self-Defense Uses Per Year?,
16 J. POL’Y ANALYSIS & MGMT. 463 (1997) (expressing skepticism about the accuracy of Kleck and
Gertz’s DGU estimate, but acknowledging that their methodology was sound). Other experts find that
private firearm ownership has very little effect on crime. E.g., Carlisle E. Moody & Thomas B. Marvell,
The Debate on Shall-Issue Laws, 5 ECON J. WATCH 269 (2008) (finding that the only statistically-
significant long-term effect of liberalizing concealed carry only is to reduce assaults). See also JOHNSON
et al., supra note 22, at 911 (collecting sources).
161. In 2010, the U.S. population was about 309.3 million. U.S. CENSUS BUREAU, U.S. AND WORLD
POPULATION CLOCK, http://www.census.gov/popclock/ (last visited Oct. 16, 2015). The following table
shows the number nonfatal and fatal of firearm accidents, incidents, and self-harm in 2010:
Nonfatal Fatal Total
Accidents 14,161 20% 606 2% 14,767 14%
Self-Harm 4,683 6% 19,392 62% 24,035 23%
Assaults 53,738 74% 11,078 36% 64,816 63%
Total 72,542 100% 31,076 100% 103,618 100%
Nonfatal Injury Reports, 2001–2011, CENTERS FOR DISEASE CONTROL & PREVENTION, http://webappa.cd-
c.gov/sasweb/ncipc/nfirates2001.html (last visited Apr. 15, 2014) (select either “Unintentional,” “As-
sault—All,” or “Self-Harm”; then select “Firearm”; and finally select “2010” and “All Ages”); Fatal
Injury Reports, National and Regional, 1999–2010, CENTERS FOR DISEASE CONTROL & PREVENTION,
http://webappa.cdc.gov/sasweb/ncipc/mortrate10_us.html (last visited Apr 15, 2014) (select either “Un-
intentional,” “Homicide,” or “Suicide”; then select “Firearm”; and finally select “2010” and “All
Ages”).
By way of comparison, falling accidents caused 9,146,026 injuries and 26,009 deaths. Nonfatal
Injury Reports, 2001–2011, CENTERS FOR DISEASE CONTROL & PREVENTION, http://webappa.cdc.gov/sasweb/
ncipc/nfirates2001.html (last visited Apr. 15, 2014) (select either “Unintentional,”; then select “Fall”;
Evidence also conflicts on whether firearm availability causes more suicides or

merely shifts suicides from other sources to firearms.162
With such little clarity, there is no compelling justification for deploying the
power of the state, via possessory offenses with draconian penalties, against
individuals who want to defend themselves and their families, and who have
done no other wrong. This is doubly true in a world where a felony conviction
can destroy one’s life, not to mention the lives of one’s family members who
may find themselves without a breadwinner or, worse, in foster care. The laws’
collateral effect is to inhibit positive gun ownership without impacting the
negative—proponents and opponents of gun control agree that criminals will
not heed firearms restrictions.163
Firearms laws thus fall more harshly on peaceable citizens willing to defend
themselves than on violent criminals. The state is able to enact these kinds of
malum prohibitum offenses because their targets have been demonized to the
point where it is possible to treat them as something less than full citizens.
and finally select “2010” and “All Ages”); Fatal Injury Reports, National and Regional, 1999–2010,
CENTERS FOR DISEASE CONTROL & PREVENTION, http://webappa.cdc.gov/sasweb/ncipc/mortrate10_us.html
(last visited Apr 15, 2014) (select “Unintentional”; then select “Fall”; and finally select “2010” and “All
Ages”).
162. Compare, e.g., Gary Kleck, TARGETING GUNS, FIREARMS AND THEIR CONTROL 275–79 (1997) with
Harvard School of Public Health, Firearm Access Is a Risk Factor for Suicide, http://www.hsph.harvard-
.edu/means-matter/means-matter/risk (collecting research suggesting a link between firearms availabil-
ity and suicide rates) (last visited Oct. 19, 2015). “[P]rivate firearms ownership is almost completely
illegal in Japan, and is heavily restricted in Russia, but each of these countries has a per capita suicide
rate more than double that of the United States.” JOHNSON et al., supra note 22 (citing WORLD HEALTH
ORG., Suicide Rates (per 100,000) by Country, Year and Gender (2003), http://www.who.int/
mental_health/prevention/suicide/suiciderates/en/).
163. Cf. Mocsary, supra note 143, at 1229 n.125, 1262 (2014) (discussing expert agreement that
criminals would not heed a mandate to register or insure their firearms).
A Survey of Current Second Amendment Litigation – including the new U.S.
Supreme Court Case, NYSRPA v. City of New York
By
David Thompson
Since the Supreme Court’s two landmark pronouncements on the topic of Second
Amendment jurisprudence in District of Columbia v. Heller, 554 U.S. 570 (2008), and
McDonald v. City of Chicago, 561 U.S. 742 (2010), litigation in the lower courts over the scope
and implications of those decisions has coalesced around a number of discrete issues. In my
remarks, I will focus on four major types of firearm restrictions that have been repeatedly
challenged in the lower courts and continue to generate significant disagreement and
controversy: (1) restrictions on carrying firearms outside the home, (2) bans on the purchase,
sale, or manufacture of certain semi-automatic firearms and firearm magazines capable of
holding more than a certain number of rounds (generally ten or fifteen), (3) laws banning adults
between the ages of 18 and 21 from purchasing firearms, and (4) special taxes imposed on the
purchase of firearms or ammunition. I will also discuss New York State Rifle and Pistol
Association, Inc. v. City of New York, a case in which the U.S. Supreme Court recently granted
review to consider the constitutionality of restrictions that New York City imposes on the
transportation of firearms.
I. Right to Carry.
The vast majority of States—41 or 42, depending on how you count—largely respect the right to
bear a firearm in public, limiting that right at most through imposing background-checks or
training requirements. Two types of regimes have emerged among these states: permitless-carry
regimes, sometimes called “constitutional carry,” in which law-abiding citizens may carry
firearms outside the home without obtaining a license or permit from the government to do so;
and right-to-carry regimes, in which a citizen must obtain a license or permit to carry a firearm
in public, but can obtain a carry permit simply by meeting certain objective criteria, such as
demonstrating basic firearm proficiency or passing a criminal history check.
A few States, however, attempt to deny most of their citizens the right to carry firearms. Two
jurisdictions—Illinois and the District of Columbia—have attempted to ban carrying arms in
public entirely. Both of those bans have been struck down by the courts. As the Seventh Circuit
Court of Appeals reasoned with respect to Illinois’s ban, Heller establishes that the Second
Amendment “confers a right to bear arms for self-defense, which is as important outside the
home as inside.” Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012). Accordingly, to allow a
ban on carrying firearms in public, a court would have “to repudiate the [Supreme] Court’s
historical analysis.” Id. at 935. The Seventh Circuit declined to do that. And Illinois elected not
to ask the Supreme Court to repudiate its own analysis in Heller, either: upon losing before the
Seventh Circuit, Illinois did not to ask the Court to review the case, potentially based on the
judgement that the Court would likely agree that its ban on public carriage was flatly inconsistent
1
with the right to bear arms. See also Palmer v. D.C., 59 F. Supp. 3d 173 (D.D.C. 2014) (striking
down D.C.’s carry ban).
Other states have experimented with laws that stop short of banning the bearing of arms outright,
but effectively limit that right to small percentage of law-abiding citizens. Several jurisdictions
require any applicant for a license to carry a firearm to prove that they have a “good cause” or
“proper reason”—such as some unique self-defense need—to bear arms. Because most people
haven’t, for example, received documented death threats, the result of these laws is to make it
effectively impossible for ordinary citizens to bear arms in self-defense.
These types of “proper reason” restrictions have been enacted in some form or another in 8 or 9
States, and they have been the subject of frequent litigation. My firm challenged D.C.’s version
of the “proper reason” requirement, and in a recent, important decision, the D.C. Circuit Court of
Appeals held the District’s restriction unconstitutional. Wrenn v. District of Columbia, 864 F.3d
650 (D.C. Cir. 2017). After examining the history of the Second Amendment and the Supreme
Court’s decision in Heller, the court concluded that “the Amendment’s core generally covers
carrying in public for self-defense.” Id. at 659. It rejected D.C.’s theory that it was exempt from
the Second Amendment because of its urban character, finding instead that the Amendment’s
“protections today don’t give out inside the Beltway.” Id. at 661. And because the District’s
“proper reason” requirement “is necessarily a total ban on most D.C. residents’ right to carry a
gun in the face of ordinary self-defense needs,” the D.C. Circuit concluded that it was flatly
unconstitutional under Heller’s interpretation of the Second Amendment. Id. at 666. Like Illinois
did after the Seventh Circuit decision, the District ultimately decided not to ask the Supreme
Court to review the D.C. Circuit’s decision striking it’s “proper reason” law down.
Outside of the Seventh Circuit and D.C. Circuit, however, the results in the courts have been
mixed with respect to these types of laws. The First, Second, Third, and Fourth Circuits have
upheld these types of “may issue” restrictions. Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018);
Drake v. Filko, 724 F.3d 426 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865 (4th Cir.
2013); Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012). And litigation in the
Ninth Circuit on this issue has been ongoing and has not yet played itself out to conclusion.
California’s “may issue” regime was initially held unconstitutional by a three-judge panel, but
the Ninth Circuit reheard the case en banc and upheld California’s law on the basis that because
the plaintiffs had only challenged California’s restrictions on concealed carrying—not open
carrying—the only question at issue was whether concealed carrying, viewed in isolation, was
protected by the Second Amendment—which, the en banc court concluded, it was not. Peruta v.
County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc). Subsequently, when plaintiffs
challenged Hawaii’s similar “may issue” restriction on open carrying, another panel of three
judges struck Hawaii’s law down as unconstitutional. Young v. Hawaii, 896 F.3d 1044 (9th Cir.
2018). But recently the Ninth Circuit again agreed to rehear the case en banc. That rehearing
proceeding is currently stayed pending the Supreme Court’s decision in the New York State Rifle
& Pistol Association case, discussed below.
So far, the Supreme Court has declined to wade into the right-to-carry controversy. In the Ninth
Circuit Peruta case, the plaintiffs petitioned the Supreme Court for review, and while the Court
denied the petition, two Justices—Justices Thomas and Gorsuch—dissented from this decision,
stating that the Ninth Circuit’s decision “is indefensible” and that the Court should have granted
2
review. Observers have generally thought that the Court has been waiting to hear a case on this
issue until there is a “split” between the circuit courts—with at least one final decision on both
sides of the question whether these “proper reason” laws are unconstitutional. There was no split
when the Court declined to review the Ninth Circuit case; but now, given the D.C. Circuit’s
ruling striking down the District’s restriction, there is a split, and the issue is primed for the
Supreme Court’s consideration. My firm currently has a petition before the Court in a case
challenging New Jersey’s “may issue” law, Rogers v. Grewal, which presents the Court with the
opportunity to take up the issue and resolve the split.
II. Bans on Semiautomatic firearms and standard-capacity magazines.
Another issue that has confronted the lower courts in the wake of Heller is the constitutionality
of bans on certain firearms or ammunition magazines that are alleged by some to be especially
dangerous or harmful. Several jurisdictions have banned the purchase, sale, or possession of so-
called “assault weapons”: a gerrymandered category of semi-automatic firearms that possess
certain largely cosmetic features such as a “pistol grip” or “telescoping stock”. These and other
jurisdictions have also imposed a handful of bans on the purchase, sale, or possession of so-
called “large capacity” ammunition magazines, which they define as magazines capable of
holding more than an arbitrary number of rounds (generally 10 or 15).
The history of banning the firearms and magazines in question began at the federal level, when
Congress in 1994 banned a class of so-called “assault weapons”—identified either by specific
make and model or by the possession of a certain number of enumerated features—as well as
magazines capable of holding more than 10 rounds. The federal ban was enacted with a 10-year
sunset provision. The ban was not shown to have had any substantial impact on crime, and
Congress allowed it to expire in 2004.
Following the expiration of the federal ban, a number of jurisdictions enacted their own bans on
the firearms in question, the magazines, or both. Plaintiffs have challenged many of these bans,
and as with the right-to-carry litigation, the results have so far been mixed. In Heller v. District
of Columbia (“Heller II”), for example, a divided panel of the D.C. Circuit upheld the District of
Columbia’s ban on popular semi-automatic firearms and magazines capable of holding more
than ten rounds. 670 F.3d 1244 (D.C. Cir. 2011). The majority found it “clear enough in the
record that semi-automatic rifles and magazines holding more than ten rounds are indeed in
“common use,” as the plaintiffs contend,” and it assumed that the bans “do impinge upon the
right protected by the Second Amendment.” Id. at 331. However, the majority weighed the laws
under only “intermediate scrutiny,” based on its conclusion that the bans do “not effectively
disarm individuals or substantially affect their ability to defend themselves.” Id. at 332. And it
upheld the bans under that analysis, concluding that “the District has carried its burden of
showing a substantial relationship between the prohibition of both semi-automatic rifles and
magazines holding more than ten rounds and the objectives of protecting police officers and
controlling crime.” Id. at 334. Then-Judge Kavanaugh dissented. Rather than intermediate
scrutiny or any of the ordinary “tiers of scrutiny,” he would have applied “Heller’s history- and
tradition-based test,” asking only whether the ban on semi-automatic firearms and magazines
“have not traditionally been banned and are in common use by law-abiding citizens.” Id. 1270,
1284 (Kavanaugh, J., dissenting).
3
Other federal courts have essentially adopted the analysis—and conclusions—of the majority in
Heller II, rather than then-Judge Kavanaugh’s text-and-history test. The Second Circuit, for
example, upheld laws from New York and New Jersey banning both the firearms and magazines
in question in a combined opinion in New York State Rifle & Pistol Association, Inc. v. Cuomo
804 F.3d 242 (2d. Cir. 2015). The Second Circuit acknowledged that “[e]ven accepting the most
conservative estimates,” the firearms and magazines banned by New York “are ‘in common use’
as that term was used in Heller.” Id. at 255. And like the Heller II majority it thus “assume[d] for
the sake of argument that these commonly used weapons and magazines are typically possessed
by law-abiding citizens for lawful purposes”—placing them within the scope of the Second
Amendment’s protections, under Heller’s approach. Id. at 257. But despite determining that the
firearm and magazine ban “implicate[s] the core of the Second Amendment’s protections by
extending into the home” and imposes “a serious encroachment on the Second Amendment
right,” id. at 258, 259, the court concluded “that intermediate, rather than strict, scrutiny is
appropriate,” id. at 260. And, again like the majority in Heller II, it upheld the bans under that
standard, deferring to the States’ public-safety justifications with little-to-no independent
analysis. Id. at 263–64. Based on similar reasoning, the Third Circuit likewise recently upheld a
decision denying a preliminary injunction of New Jersey’s ban on 11-plus-round ammunition
magazines, concluding that the law was subject at most to intermediate scrutiny and that it
survived scrutiny because it “reasonably fits the State’s interest in promoting public safety.” 910
F.3d 106, 118, 119 (3d Cir. 2018).
Other federal circuit courts have upheld similar laws under more idiosyncratic analyses. In
Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015), the Seventh Circuit upheld the
City of Highland Park, Illinois’s similar ban on so-called “assault weapons” and “large capacity”
magazines under a three-prong test of its own creation that looked to “whether a regulation bans
weapons that were common at the time of ratification or those that have some reasonable
relationship to the preservation or efficiency of a well regulated militia, and whether law-abiding
citizens retain adequate means of self-defense,” id. at 410 (citations and quotation marks
omitted). Portions of this test are in obvious tension with the Supreme Court’s Heller decision.
Looking to whether citizens “retain adequate means of self-defense” because they may possess
other firearms that are not banned mirrors an argument that the Court deliberately rejected in
Heller: “that it is permissible to ban the possession of” a class of firearms—handguns, in that
case—“so long as the possession of other firearms . . . is allowed.” Heller, 554 U.S. at 629.
Likewise, while Highland Park focuses on whether the banned firearms “were common at the
time of ratification,” 784 F.3d at 410, contradicts Heller’s teaching that any suggestion “that only
those arms in existence in the 18th century are protected by the Second Amendment” is so
meritless that it “border[s] on the frivolous,” 554 U.S. at 582. The Fourth Circuit has also upheld
a ban on semi-automatic and 11-plus-round magazines under an analysis that is in significant
tension with the Heller opinion. While Heller indicates that the Second Amendment extends to
all firearms “in common use” by law-abiding citizens, 554 U.S. at 627, in Kolbe v. Hogan, the en
banc Fourth Circuit carved out a category of common firearms that it held are categorically
unprotected by the right to keep and bear arms, firearms that it described as “ ‘like’ the M16,” or
“most useful in military service.” 849 F.3d 114, 136, 137 (4th Cir. 2017) (en banc).
As in the right-to-carry context, not all the federal courts have decided against challenges to
these types of bans. In the Ninth Circuit, the U.S. District Court for the Southern District of
California preliminarily enjoined California’s ban on 11-plus-round magazines, concluding that
4
even if the ban was subject to only intermediate scrutiny, the State had failed produce evidence
sufficient to justify the magazine ban. Duncan v. Becerra, 265 F. Supp. 3d 1106, 1112 (S.D. Cal.
2017), aff’d, 2018 WL 3433828 (9th Cir. July 17, 2018). A panel of the Ninth Circuit affirmed
this opinion, id., and the district court is currently engaged in further proceedings on the
constitutionality of the ban. Moreover, in those Circuits that have upheld bans on the firearms
and magazines in question, the decisions have not always been unanimous. In addition to then-
Judge Kavanaugh’s dissent in Heller II, the Third Circuit’s decision upholding New Jersey’s ban
was disputed by a lengthy dissent from Judge Bibas, see Association of New Jersey Rifle &
Pistol Clubs, 910 F.3d at 126 (Bibas, J., dissenting); likewise, the Seventh Circuit sustained
Highland Park’s ban only over a dissent from Judge Manion, see Friedman, 784 F.3d at 412
(Manion, J., dissenting). The Fourth Circuit’s decision in Kolbe was even more contentious: the
panel that first heard the appeal reversed the district-court decision upholding Maryland’s ban,
and ordered a remand for the application of strict scrutiny. Kolbe v. Hogan, 813 F.3d 160 (4th
Cir. 2017). The en banc court reheard the case and vacated the panel’s decision, affirming the
district-court decision sustaining the ban—but only over a four-judge dissent authored by Judge
Traxler. 849 F.3d at 151 (Traxler, J., dissenting). And while the Supreme Court declined to
review the Seventh Circuit’s decision in Friedman, Justice Thomas, joined by Justice Scalia,
dissented from that decision, arguing that the panel majority’s analysis could not be squared with
Heller and “relegate[ed] the Second Amendment to a second-class right.” Friedman v. City of
Highland Park, Ill., 136 S. Ct. 447, 450 (2015).
Once again, the Supreme Court has so far declined to consider the constitutionality of these
firearm and magazine bans. Litigation continues, however, and it is possible that the Court’s
decision in the New York State Rifle and Pistol Association case, discussed below, will clarify
the standard of scrutiny that applies in Second Amendment challenges and bring some clarity to
this muddled area of law.
III. Restrictions on the rights of 18-21 year-old adults.
A third front in the Second Amendment wars concerns the rights of law-abiding adults aged 18-
21 to acquire firearms for lawful purposes including self-defense. Federal law bans most firearms
dealers from selling handguns to adults under the age of 21. The Gun Control Act provides: “It
shall be unlawful for any [federally] licensed importer, licensed manufacturer, licensed dealer, or
licensed collector to sell or deliver … [a handgun] to any individual who the licensee knows or
has reasonable cause to believe is less than twenty-one years of age.” 18 U.S.C. § 922(b). It
further provides that “a licensed importer, licensed manufacturer, or licensed dealer may sell a
firearm to a person who does not appear in person at the licensee’s business premises … only if”
the person signs a sworn statement attesting “that, in the case of any firearm other than a shotgun
or a rifle, I am twenty-one years or more of age.” Id. § 922(c)(1).
The Act also defines who must obtain a federal firearms license subject to these requirements—
and who may sell firearms without doing so. Any person who “engage[s] in the business of
importing, manufacturing, or dealing in firearms” must obtain a federal firearms license (“FFL”).
Id. § 922(a)(1)(A). And the Act makes it illegal “for any person [other than a licensed dealer] to
transfer, sell, trade, give, transport, or deliver any firearm to any person … who the transferor
knows or has reasonable cause to believe does not reside in … the State in which the transferor
resides.” Id. § 922(a)(2)(5).
5
The combined effect of the Act is thus as follows: an FFL cannot sell a handgun to any person—
either within the State or across state lines—who is under 21. And no-one—not even a family
member or a friend—can sell a handgun to someone under 21 across state lines. Accordingly, an
adult under the age of 21 who wants to buy a handgun—what the Supreme Court in Heller
described as “the most popular weapon chosen by Americans for self-defense in the home,” 554
U.S. at 629—has two options: buy it from a private seller, such as a family member or friend,
within the state; or convince someone to give you one as a gift. Moreover, in some jurisdictions
even these options are curtailed. Florida, for example, recently enacted legislation in the wake of
the Parkland tragedy that bans 18-to-21-year-olds from purchasing a firearm of any kind—
including long guns—from anyone—including family members or private sellers.
These age-based bans have been challenged, but they have generally been upheld. My firm
challenged the federal ban in a case arising out of Texas, for instance, which went up to the Fifth
Circuit. But that court upheld the federal law. It applied a two-step framework for reviewing
Second Amendment claims: “the first step is to determine whether the challenged law impinges
upon a right protected by the Second Amendment”; “the second step is to determine whether to
apply intermediate or strict scrutiny to the law, and then to determine whether the law survives
the proper level of scrutiny.” National Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco,
Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir. 2012). The court resolved the Second
Amendment claim at the second step, holding that “the challenged federal laws trigger nothing
more than ‘intermediate’ scrutiny,” and concluding that the laws “pass[] constitutional muster”
under that standard. Id. at 205, 207. The Fifth Circuit’s decision was not uncontroversial,
however; seven of the Firth Circuit’s 15 judges would have reheard the case en banc, and six of
them joined a detailed dissent from denial authored by Judge Edith Jones, who argued that the
panel’s analysis did not “take seriously Heller’s methodology and reasoning” and consisted of
merely “rummaging through random ‘gun safety regulations’ of the 18th century and holding
that these justify virtually any limit on gun ownership,” and that the federal age-ban did not pass
even intermediate scrutiny, properly applied. National Rifle Ass’n, Inc. v. Bureau of Alcohol,
Tobacco, Firearms, & Explosives, 714 F.3d 334, 336, 339, 346–47 (5th Cir. 2013) (Jones, J.,
dissenting from denial of rehearing en banc).
We have also challenged Florida’s age-based ban, but that litigation is currently embroiled over a
subsidiary issue raised by the case: whether the nineteen-year-old woman who is challenging the
law may do so anonymously, to preserve her from the risk of public opprobrium, intimidation,
and death threats that she would almost certainly suffer were she publicly associated with this
high-profile litigation. The district court denied our motion to proceed anonymously this past
spring. We are currently appealing that decision to the federal Eleventh Circuit.
IV. Firearm and ammunition taxes.
A fourth area of Second Amendment controversy concerns the efforts of a growing number of
jurisdictions to impose special taxes or fees on the purchase of all firearms, ammunition, or both.
Seattle, WA has imposed one of these “gun taxes” since 2016; Cook County, Illinois, has
similarly taxed all firearm purchases since 2012, and ammunition purchases since 2015; and after
the recent elections, a rash of firearm and ammunition taxes have been proposed in States and
cities throughout the Nation. Importantly, these taxes all share two features: (1) they are imposed
only on firearm and ammunition purchases (they are not general sales taxes); and (2) the funds
6
they generate go into the jurisdiction’s general revenue, or fund programs that would otherwise
be funded by general revenue; the funds do not merely pay for the expenses of a licensing
scheme governing firearm use or possession.
This makes these taxes suspect under the general jurisprudence governing the taxation of
constitutionally protected conduct. It is uncontroversial that the right to keep and bear arms
obviously must protect the right to acquire arms suitable for keeping and bearing and the
ammunition necessary for firing them—else a State could enact a de facto ban on possessing
firearms by prohibiting anyone from buying firearms or the ammunition they need to operate
them. See Jackson v. City & Cty. of S.F., 746 F.3d 953, 967 (9th Cir. 2014); United States v.
Marzzarella, 614 F.3d 85, 92 n.8 (3d Cir. 2010); Association of N.J. Rifle & Pistol Clubs, Inc. v.
Grewal, 2018 WL 4688345, at *9 (D.N.J. Sept. 28, 2018); Duncan v. Becerra, 265 F. Supp. 3d
1106, 1117 (S.D. Cal. 2017), aff’d, 742 Fed. App’x 218 (9th Cir. 2018) Radich v. Guerrero,
2016 WL 1212437, at *7 (D. N. Mar. I. Mar. 28, 2016); Illinois Ass’n of Firearms Retailers v.
City of Chicago, 961 F. Supp. 2d 928, 930, 938 (N.D. Ill. 2014). And in other areas of
constitutional jurisprudence, it is also well settled that law-abiding citizens cannot “be required
to pay a tax for the exercise of . . . a high constitutional privilege.” Follett v. Town of
McCormick, 321 U.S. 573, 578 (1944). That follows directly from the recognition that, as put by
Chief Justice Marshall nearly two centuries ago, the “power to tax” is “the power to destroy.
M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819).
In multiple, diverse doctrinal areas, the courts have thus scrutinized—and struck down—taxes
imposed on constitutionally protected conduct. The most familiar context involves activities
protected by the freedom of speech, such as the publication of newspapers or magazines. In
Grosjean v. American Press Co., for instance, the Supreme Court struck down a state tax on the
publication of advertisements in newspapers or magazines, which, it concluded, amounted to “a
deliberate and calculated device in the guise of a tax to limit the circulation of information.” 297
U.S. 233, 250 (1936). Recounting the centuries-long history of such abusive “taxes on
knowledge” and their condemnation by the pioneers of free speech in England and early
America, the Court held the tax unconstitutional under the First Amendment. Id. at 245–50.
More recently, in Minneapolis Star & Tribune, the Supreme Court struck down a state tax on the
paper and ink used by newspapers based on similar reasoning. 460 U.S. 575, 585–89 (1983); see
also Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 228 (1987).
The courts have also held unlawful taxes and fees that burden the free exercise of religion. In
Murdock v. Pennsylvania, 319 U.S. 105 (1943), and Follett v. Town of McCormick, 321 U.S. 573
(1944), for example, the Supreme Court struck down local licensing fees on door-to-door
salespersons as applied to evangelists selling religious tracts. The Court compared these
licensing fees to “a tax [on a preacher] for the privilege of delivering a sermon,” and concluded
that “[a] state may not impose a charge for the enjoyment of a right granted by the federal
constitution.” Murdock, 319 U.S. at 112, 113. In like form, the courts have held unconstitutional
fees with no indigency exception that are imposed on standing for and voting in elections. E.g.,
Lubin v. Panish, 415 U.S. 709 (1974); Harper v. Virginia State Bd. of Elections, 383 U.S. 663
(1966).
Although these decisions rest on different constitutional provisions, a single overarching

principle unites them: “[a] state may not impose a charge for the enjoyment of a right granted by
7
the federal constitution” absent a compelling justification. Murdock, 319 U.S. at 113. Litigation
challenging the special taxes and fees imposed on firearm and ammunition purchases argues that
this same principle must also apply in the context of the Second Amendment, forbidding
discriminatory taxation that singles out the purchase of firearms or ammunition protected by the
right to keep and bear arms. My firm is currently litigating a challenge to Cook County’s firearm
and ammunition taxes, for example, in Illinois state court. Although the trial court upheld the
taxes, we are currently appealing that decision to state appellate court. As governments continue
to turn to taxation to impose costs on gun owners, litigation over this issue will only grow in
importance.
V. New York State Rifle and Pistol Association, Inc. v. City of New York.
Finally, I will close my remarks by discussing the implications of the Supreme Court’s recent
cert. grant in the New York State Rifle and Pistol Association case.
The only way an ordinary, law-abiding resident of New York City can lawfully possess a
handgun is by obtaining a “Premises License” under 38 RCNY § 5-02. And even with such a
license in hand, the law-abiding resident is categorically barred by Section 5-23 of Title 38 of the
City’s rules from removing the licensed handgun “from the address specified on the license”
except in two narrow circumstances. The licensee may transport the handgun “to and from an
authorized area designated by the New York State Fish and Wildlife Law” for the purpose of
hunting. Id. § 5-23(a)(4). And “[t]o maintain proficiency in the use of the handgun,” the licensee
may also transport his handgun to “an authorized small arms range/shooting club” within city
limits. Id. at § 5-23(a)(3). But according to the Plaintiffs challenging these restrictions in the New
York case, there is only one such shooting range open to the public. The upshot of New York’s
restrictions is thus to severely restrict the ability of its residents to maintain proficiency in using
their firearms—all while discriminating against out-of-state businesses in favor of the shooting
ranges operating within city limits. Furthermore, New York residents cannot transport a handgun
to a second residence outside the City, perversely forcing them to leave their handguns
unattended in their homes when traveling outside the jurisdiction.
I think it is likely that the Supreme Court will strike down New York’s restrictions, but the
implications of such a decision are currently unclear. My hope is that the court will identify the
correct framework for analyzing Second Amendment challenges and the proper mode of analysis
that the courts must apply when considering them. If so, by this time next year each of the issues
discussed above will probably still be enmeshed in active litigation— so be sure to come back
next year.
8
Section Two
Never Run Away – From Your Ethics
Justice Steven David

Never
Run From Your Ethics!
Away
Justice Steven David, Indiana Supreme Court 1
Justice Steven H. David
steven.david@courts.IN.gov
Office (317) 232.2547
Cell (317) 224.4293
Room 321, Indiana State House
200 W. Washington Street
Indianapolis, IN 46204
N
R
BASIC FIREARMS 101

N
ACTION-STOCK-BARREL
A

N
R
ETHICS- PROFESSIONALISM-CIVILITY

BE PASSIONATE NOT EMOTIONAL
R
A

N
R
ALWAYS MAYBE NEVER
8
N
R
HAVE A SAFE PLACE.
USE IT!

EDUCATE-NOT- ALIENATE
R
A

N
HIGH ROAD ALWAYS
A
Jus tice Steven Davi d, Indiana Supreme Court 12

N
R
DON’T COME ANY CLOSER OR I’LL….

THE RECORD IS
ALWAYS ON-
EVEN WHEN IT’S OFF.

R
A

GETTING ALONG IS NOT WRONG
R
A

HUMILITY?
N
EVER HEARD OF IT BEFORE?
A

N
R
BE TOLERANT

N
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BE TALLER THAN THE RANT

N
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GOD FORBID YOU ARE EVER WRONG

TWO PARTIES ONE OATH
R
A

WELLNESS
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A

BE INFORMED NOT INFLUENCED
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SUPER STUPID

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AR-15 AND ME
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LESSONS LEARNED
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Jus tice Steven Davi d, Indiana Supreme Court 34
Never
Run From Your Ethics!
Away
Justice Steven H. David
steven.david@courts.IN.gov
Office (317) 232.2547
Cell (317) 224.4293
Room 321, Indiana State House
200 W. Washington Street
Indianapolis, IN 46204
Questions

Section Three
Another Arrow in the Quiver: State Constitutions as Independent

Guarantors of the Right to Keep and Bear Arms
Sarah Gervase
Another Arrow in the Quiver: State Constitutions as
Independent Guarantors of the Right to Keep and Bear
Arms
April 26, 2019
Sarah Gervase
Assistant General Counsel
Office of the General Counsel
National Rifle Association of America
Telephone: (703) 267-1256
Email: sgervase@nrahq.org
1
Table of Contents
Introduction .................................................................................................................................................. 3
State Constitutions – What Good are They? ................................................................................................ 4
Jury Instructions and Trial Shenanigans.................................................................................................... 8
Recommended Sources ............................................................................................................................ 9
Where to Bring a State Constitutional Claim? ............................................................................................ 10
Current and Recent Challenges Based Upon State Law.............................................................................. 12
Delaware ................................................................................................................................................. 13
Vermont .................................................................................................................................................. 15
State Constitutional Right to Hunt and Fish Provisions .............................................................................. 16
Appendix - State Constitutional Right to Keep and Bear Arms Provisions ................................................. 18
2
Introduction
Most Americans - including attorneys - think exclusively of the 2nd Amendment
contained in the federal Bill of Rights when they think of constitutional protection of the right
to keep and bear arms. In fact, our nation currently has 45 right to keep and bear arms
guarantees, 44 of which are in state constitutions and independent of the Second Amendment.
Four states already protected the right to keep and bear arms by 1791. Other arms protections
were written nearly contemporaneously with the federal Second Amendment, others decades
later, while some within the last 30-40 years. Almost all speak of an individual, not a collective,
right to keep and bear arms for self-defense.
The Founders always planned for the states to be the bulwarks of freedom. To give you
a taste of how one viewed the constitutional system, Thomas Jefferson always favored states’
rights against what he called the “confederacy” of states, of more local than state control, and
of individual rights foremost. He pushed for the federal constitution’s Tenth Amendment that
limited federal power in favor of state power. He wrote in 1800 that “a single consolidated
government would become the most corrupt government on earth,” and when New England
states threatened secession near the end of his first term as president, he noted it was an
“incalculable evil” but wrote “[w]hether we remain in our confederacy, or break into Atlantic
and Mississippi confederacies, I do not believe very important to the happiness of either part,”
and, “separate them if it be better.”
Look at even the Declaration of Independence. All references were made to the
separate states and the word “nation” was explicitly dropped from the document so that the
heading of the final version was “The unanimous Declaration of the thirteen united States of
America.” Richard Henry Lee, seconded by John Adams, introduced the resolution in June 1776
by declaring that “That these United Colonies are, and of right ought to be free and
independent States.” And nowhere do the words “nation” or “national” appear in the
Constitution. The Constitution’s drafters used the term the “United States” only because they
could not reconcile the disagreements between the anti-Federalists and Federalists.
We are all familiar with the case of Marbury v. Madison from 1803. Some critics claim
that Chief Justice Marshall invented the concept and power of judicial review in the opinion.
However, even before the Constitution was written, at least seven state supreme courts had
invalidated their own state’s laws as contrary to their state constitutions. The state supreme
courts were the first to use judicial review. And several of the delegates to the Constitutional
Convention of 1787 had experience as attorneys with these state supreme court decisions.
Chief Justice John Marshall was simply following the example of states and their judicial review.
To put this into further perspective, remember that the Fourteenth Amendment wasn’t
adopted until 1868, almost 80 years after the federal Constitution came into being. Until then,
3
state protection (or failure to protect) of individual liberty was the only game in town. And
even then, it took several more decades for the U.S. Supreme Court to start extending the Bill
of Rights to the states through incorporation. The individual states were intended to be the
foremost protectors of individual liberty, and for most of our nation’s history, they were.
State Constitutions – What Good are They?

We have done a 180. For the past several decades, most scholars and litigators have
viewed the federal Constitution as the primary guarantor of individual rights. Federal courts,
not state courts, are there as the foremost protector of those rights. That has been true,
especially since the Warren Court.
But there are several factors creating renewed interest in state constitutions as
individual and independent guarantors of rights. The most recent is the perception among
those on the left to view the U.S. Supreme Court as foreclosed to them. Right or wrong,
litigators and activists on the left largely see the new Supreme Court as far less likely to be
receptive to their cases. That perception will only increase if President Trump has the
opportunity to replace another justice who had been more judicially inclined to favor certain
arguments. President Trump is changing lower federal courts as well, though with less fanfare
and national press attention. To those who view the federal courts as unfriendly, state courts
and state constitutions will be the only place to go.
Justice Brennan may be the most influential commentator noting the importance of
state constitutional right and their key role in protecting individual liberties. His two widely-
cited law review articles are must reading for anyone interested in the issue. 1 Of Justice
Brennan’s many arguments in favor of a renewed focus on state constitutional protections, his
first was that we fail to maximize the benefits of our federalist structure when the federal
constitution is seen as the foremost, and perhaps only, guarantor of individual liberty.
In more recent decades, though, scholars on both sides of the political and judicial
philosophy spectrum have written of the diminished respect, if not avoidance entirely, of state
constitutional protections and the role of state court judges in protecting individual liberties. 2
This “chronic underappreciation of state constitutional law,” as Judge Jeffrey Sutton of the Sixth
Circuit calls it in his book published last year, has led to a system dominated by the federal
judiciary instead of the independent and state constitutional-based system the founders had
envisioned. (If you’re interested more in the topic, I highly recommend reading Judge Sutton’s
1
William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians
of Individual Rights, 61 N.Y.U. L. Rev. 535 (1986); William J. Brennan, Jr., State Constitutions and the
Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).
2
See several law review articles by G. Alan Tarr, including G. Alan Tarr, State Constitutional Design and
State Constitutional Interpretation, 72 Mont. L. Rev. (2011); Ann Althouse, How to Build a Separate
Sphere: Federal Courts and State Power, 100 Harv. L. Rev. 1485 (1987).
4
book - 51 Imperfect Solutions: States and the Making of American Constitutional Law - as well
as the many law review articles he has written on the topic.)
Most commentators note the missed opportunities and the infrequency with which
litigants raise state constitutional claims. 3 If lawyers do raise state constitutional claims, they
may also raise federal claims and give short shrift to their state constitutions, or they may raise
the state claims only as a last resort.4
And one key point to remember is that the federal Constitution is a floor and not a
ceiling. State Constitutions may, and frequently do, provide greater protection for individual
liberties. 5 We’ll see that in the Delaware firearms cases to be discussed in a few minutes, but it
applies across the board to other constitutional liberties as well, particularly in search and
seizure and “right to privacy” cases. For example, the Kentucky Supreme Court invalidated its
state homosexual intercourse statute under the Kentucky Constitution’s protections of privacy
and equal protection in 1992, 11 years before Lawrence v. Texas at the U.S. Supreme Court.
And in 1975, the Alaska Supreme Court held that individuals have a right to keep and use small
amounts of marijuana in their homes under the state’s constitutional right to privacy. 6
3
James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761 (1992) and
James A. Gardner, What Is a State Constitution?, 24 Rutgers L.J. 1025 (1993).
4
Daniel Gordon, Superconstitutions Saving the Shunned: The State Constitutions Masquerading as
Weaklings, 67 Temp. L. Rev. (1994)
5
But see Erwin Chemerinsky, Two Cheers for State Constitutional Law, 62 Stan. L. Rev. 1695, 1700
(2010), noting that because state constitutional protections are so rarely invoked, “many states do not
have a tradition of using state constitutions to provide rights greater than that in the United States
Constitution.”
But, here is some strong, protectively jealous language from the Supreme Court of South Dakota in a
search and seizure case: “There can be no doubt that this court has the power to provide an individual
with greater protection under the state constitution than does the United States Supreme Court under
the federal constitution ... This court is the final authority on interpretation and enforcement of the
South Dakota Constitution. We have always assumed the independent nature of our state constitution
regardless of any similarity between the language of that document and the federal constitution.
Admittedly the language of Article VI, § 11 is almost identical to that found in the Fourth
Amendment; however, we have the right to construe our state constitutional provision in
accordance with what we conceive to be its plain meaning. We find that logic and a sound regard for the
purposes of the protection afforded by S.D.Const., Art. VI, § 11 warrant a higher standard of protection
for the individual in this instance than the United States Supreme Court found necessary under the
Fourth Amendment.” South Dakota v. Opperman, 27 N.W.2d 673 (S.D. 1976), on remand from the U.S.
Supreme Court.
6
Judge Sutton gives two other examples in his 51 Imperfect Solutions book. The first is forced
sterilizations in the early part of the 20th century. Prior to Buck v. Bell in 1927, several state courts had
held their state forced sterilization laws unconstitutional under their state constitutional rights to due
process or equal protection. Sadly, after the U.S. Supreme Court decision, most state courts “fell in line”
with it, even when interpreting their own state’s constitutional protections. Judge Sutton’s other
example is the Fourth Amendment and the exclusionary rule. Prior to Mapp v. Ohio, many states had
5
As of today, we again have a U.S. Supreme Court that is willing to take up Second
Amendment cases. That’s great, and everyone is justifiably excited.
Still, the Supreme Court is not going to take every Second Amendment case that is
petitioned for cert. It may take only a handful within the next decade. Keep in mind that the
Supreme Court has been hearing First Amendment and Fourth Amendment cases for decades
(mostly since the early 20th century), but there is no lack of upcoming cases in those areas.
Furthermore, even a direction from the Supreme Court that lower courts must use strict
scrutiny will not resolve every question that arises. Again, look at what has happened with
other express protections in the U.S. Bill of Rights. And even though President Trump has had
great success nominating and confirming federal judges, there is no guarantee that you will get
a good panel that does not treat the Second Amendment as a second-class right.
Nor does strict scrutiny mean that most firearms laws will be held unconstitutional. We
have seen that already on the state level with state constitutional provisions that expressly call
for strict scrutiny review. More generally, though, the myth that the strict scrutiny standard of
review is “strict in theory and fatal in fact” has been largely discredited in case law studies. One
analysis done in 2006 by a noted anti-Second Amendment scholar showed a relatively high
survival rate for strict scrutiny cases in the federal courts between 1990 and 2003.7 Looking at
the First Amendment in particular, the study found that 59% of religious liberty burdens, 33% of
freedom of association burdens, and 22% of free speech restrictions were upheld during those
years. Which government passed the law matters as well. In this study, 50% of laws passed by
the federal government and analyzed under strict scrutiny analysis survived strict scrutiny,
while 29% of those passed by a state and 17% by local governments did so.
Look too at the case law from Louisiana after Louisiana added an express strict scrutiny
review requirement to its constitution in 2012. (Louisiana has the most developed case law of
all the states that now have such a strict scrutiny constitutional provision.) In State v.
Draughter, 130 So. 3d 855 (La. 2013), the Louisiana Supreme Court upheld the state’s felon-in-
possession statute. In State v. Eberhardt, 145 So. 3d 377 (La. 2014), the state supreme court
upheld a similar facially and as applied challenge to the state’s felon-in-possession statute. And
in 2014, the Louisiana Supreme Court in State v. ex. rel. J.M., 144 So. 3d 853 (La. 2014), a
criminal case involving a juvenile delinquency proceeding and laws regulating the concealment
of a weapon and the possession of a handgun by a juvenile, held that the legislature maintained
either adopted the exclusionary rule through legislation or via court decisions interpreting their states’
own search and seizure laws. These states led the way and spoke earlier than did the U.S. Supreme
Court interpreting the requirements of the federal Fourth Amendment. And after Leon, in which the
U.S. Supreme Court adopted a “good faith” exception to the exclusionary rule, twenty states rejected
such an exception under their own state constitutions.
7
Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal
Courts, 59 Vand. L. Rev. 793 (2006).
6
the ability to pass laws regulating the carrying of concealed weapons, finding that the “right to
keep and bear arms, like other rights guaranteed by [the] state constitution, is not absolute,”
and that “a long history, a substantial consensus, and simple common sense” are sufficient
evidence for even a strict scrutiny review. In conclusion, the court wrote that “the drafters and
ratifiers [of the 2012 constitutional amendment] did not intend to invalidate the existing law
restricting the carrying of concealed weapons, or to restrict the legislature’s authority to pass
laws on that subject.”
Right now, 3 states have constitutional provisions that expressly call for strict scrutiny
review of any laws touching on the state’s right to keep and bear arms – Louisiana, Missouri,
and Alabama. Iowa is in the works. 8 The NRA will continue to push to pass these in other
states where there is a chance of success, as such provisions could be useful in attacking a
whole host of state laws and regulations.
Still, even under strict scrutiny review, states will presume the constitutional validity of a
statute. State courts will be highly deferential to legislatures and challengers have a heavy
burden. In most state courts, every presumption will be made in favor of a statute’s or
ordinance’s constitutional validity. Know that going in.
Still, as of now, state courts have invalidated under their state constitutions at least 21
state statutes or local ordinances restricting the right to keep and bear arms. That’s a decent
number, considering how relatively few firearms statutes and ordinances were on the books in
the early part of our nation’s history and their historical unenforcement against people of
means. When restrictions were enforced, typically in a criminal setting, it was against those
who could not afford counsel and who were not yet afforded one by the state. They either
didn’t challenge their convictions or did pro se and lost. State courts have the potential – in
some states – to increasingly hold their own state laws as violations of their state constitutions
and to fill in the gaps left by the U.S. Supreme Court and its interpretation of the Second
Amendment.
Another key point is that the U.S. Supreme Court frequently looks at how state supreme
courts have interpreted similar state constitutional provisions to inform and illuminate its
interpretation of the federal Constitution. Justice Scalia did that in Heller. Looking at sources
and examples from the founder’s era, Justice Scalia recognized “[t]he most prominent examples
are those most relevant to the Second Amendment: Nine state constitution provisions written
in the 18th century of the first two decades of the 19th,” that referred to the bearing of arms
outside of an organized militia. That was the same interpretation adopted by pre-Civil War
8
An amendment to the Iowa Constitution was set to go before the voters in 2020, but the Iowa
Secretary of State failed to publish the required notifications in Iowa newspapers. The proposal will now
be delayed at least 2 years, but will likely be on the ballot in 2022. The proposed 2020 amendment
read: "The right of the people to keep and bear arms shall not be infringed. The sovereign state of Iowa
affirms and recognizes this right to be a fundamental individual right. Any and all restrictions of this right
shall be subject to strict scrutiny."
7
state courts of those state constitutional provisions, Scalia noted. D.C. v. Heller, 554 U.S. 570,
584-586 (2008). Justice Alito pointed to the thirteen state constitutional provisions passed
before 1820 as part of his answer to whether the right to keep and bear arms is “deeply rooted
in this Nation’s history and tradition” in McDonald v. Chicago, 561 U.S. 742, 769, 770 (2010).
He recognized as well that by 1868, 22 of the 37 states had state constitutional provisions
explicitly protecting the right to keep and bear arms. Id. at 777.
One final point. You may get a bad decision from a state court. However, an
unfavorable decision from a state court is easier to correct than is one from the federal level.
Amending state constitutions is of course easier than amending the federal Constitution, and
many states have elected judges than can be voted out. And if you lose, better to lose small.
State decisions cover a smaller jurisdiction and affect fewer individuals than do federal
decisions.
Jury Instructions and Trial Shenanigans
We have seen criminal cases in which prosecutors have tried to imply that the mere
possession of a firearm points to additional proof of guilt. Defense attorneys should object to
such attempts, and in such cases should argue for a jury instruction that jurors may not draw an
adverse inference from the mere possession of a firearm. Include something along the lines of:
“Mr. Jones has a right to and is entitled to possess a firearm under the constitution of our state
and under the United States Constitution.”
This has come up in several cases, though State v. Rupe, 683 P.2d 571 (Wash. 1984) is
probably the best known. In that case, the defendant possessed a CAR-15 rifle that he used for
hunting. The rifle had nothing to do with the murder, and yet the jury heard evidence of the
rifle. The defendant was sentenced to death. The Washington Supreme Court invalidated the
death sentence on that ground, writing in part:
Constitutionally protected behavior cannot be the basis of criminal punishment.

…The State can take no action which will unnecessarily “chill” or penalize the
assertion of a constitutional right and the State may not draw adverse inferences
from the exercise of a constitutional right.
…
Defendant’s behavior – possession of legal weapons – falls squarely within the
confines of the right guaranteed by Const. art. 1, § 24. Defendant was thus
entitled under our constitution to possess weapons, without incurring the risk
that the State would subsequently use the mere fact of possession against him in
a criminal trial unrelated to their use.
Another interesting case is U.S. v. Hitt, 981 F.2d 422 (9th Cir. 1992). Hitt was prosecuted
for possessing an unregistered machine gun. The key question was whether the rifle would
indeed fire on full auto. Hitt’s expert witness testified that it fired only on full auto in the
government’s test, not his, because some of the internal parts were worn, dirty, or defective.
8
To show this, the government introduced a photo of the rifle allegedly showing the clean and
operational rifle. On appeal, the 9th Circuit noted:
Unfortunately, the photograph showed nothing of the gun’s interior. All the jury
could see was the outside, and not very well at that, as the gun occupied only a
small part of the 4” x 6” photograph. The rest was taken up by about a dozen
other weapons – nine other guns, including three that looked like assault rifles,
and several knives – all belonging to Hitt’s housemate. Hitt objected to
admission of the photograph under Fed.R.Evid. 403, but the district court
overruled his objection.
…
At the same time, the photograph was fraught with the twin dangers of unfairly
prejudicing the defendant and misleading the jury. It showed a dozen nasty-
looking weapons, which the jury must have assumed belonged to Hitt. The
photograph looked like it was taken at Hitt’s residence: The guns were laid out in
an obviously residential room; the jury knew Hitt was arrested at home; the
photograph was talked about in the same breath as two others identified at trial
as having been taken in Hitt’s bedroom. Moreover, there was no one else the
jury could have suspected of owning the guns. Hitt’s roommate, who in fact
owned all the other weapons, wasn’t even mentioned during Hitt’s trial.
Inferring that all the weapons were Hitt’s wasn’t just a plausible inference; it was
the only plausible inference.
Once the jury was mislead into thinking all the weapons were Hitt’s, they might
well have concluded Hitt was the sort of person who’d illegally own a machine
gun, or was so dangerous he should be locked up regardless of whether or not
he committed this offense. Rightly or wrongly, many people view weapons,
especially guns, with fear and distrust. Like evidence of homosexuality …, or of
past crimes … photographs of firearms often have a visceral impact that far
exceeds their probative value … The prejudice is even greater when the picture is
not of one gun but of many.
Recommended Sources
Several Second Amendment scholars have written on the history and importance of
these state right to keep and bear arms provisions. I cannot give them all justice in these brief
written materials or in my oral presentation. For those more interested in the topic, however, I
recommend the following articles and books as great starting points:
Articles
For what I believe was the first article written on the topic that contains a thorough
discussion of early case law, see Robert Dowlut and Janet A. Knoop, State Constitutions and the
9
Right to Keep and Bear Arms, 7 Okla. City U. L. Rev. 177 (1982)9; Robert Dowlut, The Right to
Keep and Bear Arms in State Bills of Rights and Judicial Interpretation, 5 J. On Firearms & Pub.
Pol’y 153 (1993) 10; David B. Kopel, What State Constitutions Teach About the Second
Amendment, 29 N. Ky. L. Rev. 827 (2002)11; David B. Kopel and Clayton E. Cramer, State Court
Standards of Review for the Right to Keep and Bear Arms, 50 Santa Clara L. Rev. 1113 (2010)12;
for an article focusing on state supreme court decisions dealing with municipal bans or controls
on modern sporting rifles in Colorado, Ohio, and Oregon, see David B. Kopel, Clayton E. Cramer,
and Scott G. Hattrup, A Tale of Three Cities: The Right to Bear Arms in State Supreme Courts, 68
Temp. L. Rev. 1177 (1995) 13.
Books
First and foremost, see Stephen Halbrook’s A Right to Bear Arms: State and Federal Bills
of Rights and Constitutional Guarantees (1989). There are chapters of material on state arms
protections and state histories in Firearms Law and the Second Amendment: Regulation,
Rights, and Policy, 2nd Edition, the law school textbook written by Nicholas Johnson, David
Kopel, George Mocsary, and Michael O’Shea, all who have spoken at this Seminar or are here
this year. It is a law school textbook so it isn’t cheap, but used copies are available on Amazon
and it is a wonderful resource. Stephen Halbrook also has a chapter on state jurisprudence in
his Firearms Law Deskbook published by Thomson Reuters. This book too is well worth the
investment and should be on the shelf of every attorney who practices firearms law.
Where to Bring a State Constitutional Claim?

This section will be brief. No one wants to relive their civil procedure days from law
school and this is a somewhat unsettled area of law that will depend upon how unique a
challenged state statute is, the specific wording of the state constitutional provision, the federal
circuit in which the state is located, future federal case law on the Second Amendment, and a
series of other factors. Know only that the question has to be asked if you are considering a
constitutional claim based upon your state’s right to keep and bear arms provision. Arriving at
the best answer for your unique circumstances will require some research and thought on your
part.
Overall, though, the answer is to file in state court, and to file a state constitutional
claim alone with no Second Amendment claim attached. If you have what you think is a good
claim under your state arms provision, and you think you might have a good panel of state
judges, bring it in state court. There’s no need to complicate matters (see below for more
9
Available for free download at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2549207
10
Available here: https://constitution.org/2ll/2ndschol/105saf.pdf
11
Available here: http://www.davekopel.org/2A/LawRev/WhatStateConstitutionsTeach.htm
12
Available for free download at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1542544
13
Available here: http://www.davekopel.org/2A/LawRev/ThreeCities.htm
10
discussion), and there is some risk that a federal court would give significantly less attention to
your state level claim, or could interpret your state constitutional provision as sparingly as it has
the Second Amendment. Even though a federal court’s interpretation of a state constitutional
provision is non-authoritative and nonbinding – only state supreme courts have final authority
to interpret their state constitutions even if the federal and state constitutional provisions are
exactly the same – you still do not want a negative interpretation of your state constitution on
the books.
What happens if you bring both a state constitutional claim and a federal constitutional
claim in state court? You have introduced a federal question into a state level claim, so the
defendants could remove the case to federal court. 28 U.S.C. § 1441(b)
That’s what we saw in the Morton Grove litigation. Morton Grove, Illinois, a suburb of
Chicago, passed a handgun ban in 1981. The Illinois constitution had been rewritten in 1970
and had added an express provision guaranteeing an individual right to keep and bear arms.
Moreover, the state convention to amend the constitution had raised the issue of a handgun
prohibition but had affirmatively voted for the new RKBA provision, effectively rejecting such a
ban.
The prospects for a win looked good at the state level but terrible at the federal level.
However, the race to the courthouse was won by a case filed in state court that contained both
Illinois Constitutional claims and Second Amendment claims. Morton Grove was able to
remove the case to federal court because of the federal claim. There was a federal judge there
waiting to pounce. The district court majority found not only that the Second Amendment
didn’t preclude a handgun ban, but that the Illinois constitutional right to arms didn’t forbid it
either. The 7th Circuit affirmed by a 2-1 vote. Those opinions were on the books by the time a
case with only a state constitutional claim made it to the Illinois Supreme Court. In that case,
the Illinois Supreme Court upheld the handgun ban in a 4-3 decision. Lawyers who worked on
the state case believe that, had the Illinois Supreme Court considered the ban originally,
without the district court and court of appeals having already chimed in, there would have been
one more judge on the Illinois Supreme Court willing to find the ban unconstitutional.
It is possible to bring both a state constitutional and federal constitutional claim in

federal court. The federal court, however, could decline to exercise supplemental jurisdiction
over the pendent state constitutional claim (“abstention”). And under 28 U.S.C. § 1367, the
supplemental jurisdiction statute, the federal court could refuse jurisdiction over the state
constitutional claim if it “raises a novel or complex issue of State law,” if “[i]n exceptional
circumstances, there are other compelling reasons for declining jurisdiction,” or it if meets
another reason listed in the statute. That could come up with some right to keep and bear arms
challenges. Federal courts have comity concerns and may simply not want to tackle a state
constitutional claim that a state’s own courts could resolve.
There are a couple paths a federal court could take if it abstains from deciding a state
constitutional claim brought together with a federal constitutional claim. The federal court
11
could abstain entirely and force plaintiffs to initiate the suit in state court and go through the
full state court litigation system. That could take years and hold the federal claim in abeyance
in the meantime. Or the federal court could certify the question of the state constitutional
provision to the state court of last resort without the need for trial and appeals on the state
level. Either way, you end up back in state court where you could have been in the first place.
Current and Recent Challenges Based Upon State Law

We are going to look in depth at two recent state constitutional challenges involving the
right to keep and bear arms in Delaware and Vermont. The cases in Delaware were successful.
The challenges in Vermont are pending as of early March 2019. Both are instructive.
** It is vitally important to realize that state level constitutional challenges will not be
successful in some states and should not be brought. For one, some states do not have right to
keep and bear arms provisions – California, New York, New Jersey, Maryland, Minnesota, and
Iowa (for now) do not. And Massachusetts’ highest court has interpreted its state arms
provision as protecting only a collective right. In those states, you have no choice but to rely on
the federal courts and how the U.S. Supreme Court will interpret the Second Amendment and
apply it to the states through the 14th Amendment.
And states with constitutional provisions will interpret them using different
methodologies. Some states will use strict scrutiny review as they do for other explicitly
protected rights in their constitutions. Others will use rational basis even though they view the
right as fundamental. Others will bow to a state’s “police power” and uphold any regulation
the court deems reasonable. Know your state.
** Know your state’s judges. As we have seen far too often, many judges on both the
state and federal levels are not fond of the right to keep and bear arms. Some hate the very
idea of it, and many more shut down their brains when they are forced to decide these cases.
Some may be lazy, and may simply want to imitate what federal courts have done with the
Second Amendment rather than look closely at what their own state constitutions require. And
finally, Judge Sutton notes that some state courts may simply “lack the necessary fortitude” to
enforce what their constitutions require. That may be especially true in cases in which a state
right to keep and bear arms provision should provide greater protection than federal courts
have said the Second Amendment does.
Keep in mind that 20% of the state’s highest courts have mandatory appellate
jurisdiction. If you are in one of those states, you are guaranteed review by your state’s
supreme court.
** Be willing to put in the work. You may have to do some digging and mining into your
state’s history - especially its constitutional history - in order to put forth the strongest
12
argument. That could include convention minutes and debates and other sources that go back
decades or to the 19th and 18th centuries. Some courts may ignore such sources, but if you look
at the state constitutional cases that have been successful, they all include such history.
** Be mindful and realistic. Your client may think he has the next big Second
Amendment winner at the U.S. Supreme Court that will enhance liberty throughout the entire
nation. And all lawyers fantasize about arguing that case. The truth is, your odds of getting to
the U.S. Supreme Court are slim to none and you may have a better chance of success in
arguing a state level claim in state court. If so, that’s what you go with. A win on the state level
protects this fundamental liberty in your state and could also influence the U.S. Supreme Court
in a case further down the road.
Delaware
Delaware is great example of a state constitutional right to bear arms provision

providing a greater protection of the right to keep and bear arms than the Second Amendment
does – at least for now. Remember, as of the date of this Seminar, the Supreme Court has not
expressly stated that the Second Amendment protects the right to bear arms outside the home.
Heller and McDonald, as well as some earlier case law, certainly imply that – and the NYSRPA
case and other cases in the pipeline will give it the opportunity to do so, but as of today, the
Supreme Court hasn’t issued a decision on that direct question. The Delaware Supreme Court
has done so in relation to its own constitution.
The first case to look at is Doe v. Wilmington Housing Authority, 88 A.3d 654 (Del. 2014).
The plaintiffs were residents of low-income housing provided by a non-profit state agency.
Their leases provided that residents were prohibited from using or displaying any firearms on
their properties or would face eviction. The residents sued under the Second Amendment and
Article I, Section 20 of the Delaware Constitution, the state’s right to keep and bear arms
provision.14 The McDonald decision came down while the federal case was pending, so the
housing authority amended its policies slightly. The residents revised their Complaint to
challenge parts of the new policy. The District Court upheld the limitations under the Second
Amendment, and as far as the Delaware Constitution went, wrote only that “[t]here is scant
judicial authority interpreting Delaware’s constitutional right to bear arms, and none is directly
relevant to the issue now before this Court.” The plaintiffs appealed to the Third Circuit, which
certified the following questions to the Delaware Supreme Court – whether the new policy,
which prohibited residents from displaying or carrying a firearm in common area except under
limited circumstances, and whether the new policy’s requirement that residents have available
for inspection a permit, license, or similar documentation on them when there was reasonable
cause to believe that the law or policies were being violated – offend the Delaware
Constitution? Francis Pileggi, who is here today, argued the case in the Delaware Supreme
Court.
14
The plaintiffs filed in state court, but the defendants were able to remove the case to federal court
because of the Second Amendment claim.
13
The Court - unanimously - started its opinion well: “We begin by noting that the
Declaration of Rights in the Delaware Constitution has not always been interpreted identically
to the counterpart provisions in the federal Bill of Rights.” And this Court was not going to be
lazy. It went on to quote another case for the proposition that “Delaware judges cannot
faithfully discharge the responsibilities of their office by simply holding that the Declaration of
Rights in Article I of the Delaware Constitution is necessarily in ‘lock step’ with the United States
Supreme Court’s construction of the federal Bill of Rights.”
The Court went on to identify the list of nonexclusive factors the Delaware Supreme
Court uses to determine whether one of its state constitutional provisions is substantively
identical to an analogous provision in the U.S. Constitution. I am not going to describe them all
here because their discussions are lengthy and may not be directly on point in your state, but
you can read them for yourself in the court’s decision available at:
https://caselaw.findlaw.com/de-supreme-court/1660565.html. They are from a concurring
opinion in a New Jersey Supreme Court case, Hunt v. State, 450 A.2d 952, 962 (N.J. 1982).
According to the Court, these factors “provide a framework to determine whether a state
constitutional provision affords an independent basis to reach a different result than what
could be obtained under federal law.”
The seven non-exclusive factors are: (1) textual language, (2) legislative history, (3)
preexisting state law, (4) structural differences, (5) matters of particular state interest or local
concern, (6) state traditions, and (7) public attitudes. Your state may not have a list like this, or
the list may not be exactly the same, but you should familiarize yourself with these factors
regardless if you ever consider bringing a state constitutional claim.
The Court’s decision after that is not long, but it does describe some of the unique
history in Delaware and Delaware’s right to keep and bear arms provision enacted only in 1987.
The Court concluded that Delaware’s provision is a source independent from the Second
Amendment. And even though the Court used only intermediate scrutiny, it found both of the
challenged restrictions in the WHA policy overbroad and that they burdened the right to bear
arms more than is reasonably necessary. Both are unconstitutional under the Delaware right to
keep and bear arms. The Third Circuit adopted this opinion.
The next case to look at is Bridgeville Rifle & Pistol Club v. Small, 176 A.3d 632 (Del.
2017). 15 (Francis Pileggi argued this one too.) This was a challenge to two regulations adopted
by state agencies that resulted in a near total ban of firearms in Delaware’s states parks and
forests. The challenge was brought in state court using only the Delaware right to keep and
bear arms. Here, the Court built on its previous decision in Doe, but spent even more time than
Doe did discussing Delaware’s historical right to arms and the history behind its constitutional
RKBA provision enacted in 1987. And even though the Court used intermediate scrutiny, it did
note that “one might legitimately argue that we need not apply any level of scrutiny” because
15
The entire 143 page opinion can be found at: https://law.justia.com/cases/delaware/supreme-
court/2017/15-2017.html.
14
the regulations didn’t just infringe, but destroyed “the Core Section 20 right of self-defense for
ordinary citizens.” In a 3-2 decision, the Court found that the regulations “eliminated entirely,
or virtually entirely” a fundamental right under the Delaware Constitution and that the agencies
didn’t have the authority to enact those regulations in the first place.
After Bridgeville, state agencies promulgated new regulations banning firearms in what
they designated as sensitive areas within parks and forests. These “sensitive areas”
designations were again challenged under Delaware’s right to keep and bear arms. (Francis
Pileggi for the hat trick.) Here too, the Court found those designations burdened the
fundamental right to self-defense more than was reasonably necessary and so therefore did not
survive intermediate scrutiny. Delaware State Sportsmen's Assn. v. Garvin, 2018 Del. Super.
LEXIS 438 (Kent County Superior Court, Oct. 11, 2018). 16
Vermont
On April 11, 2018, the Vermont Governor signed into law Senate Bill 55 that limited
future magazine purchases to those of only 10 rounds, increased background checks on private
gun sales, raised the minimum age of purchase for a firearm from 18 to 21 with certain
exceptions, and prohibited the sale and possession of bump stocks. Until that point, Vermont
had had few firearms restrictions to be challenged, so there is very limited case law on the
Vermont Constitution’s right to keep and bear arms provision. There are currently two
challenges filed in state court alleging violation of the state’s right to keep and bear arms
provision. Both cases will make it to the Vermont Supreme Court, as there is no intermediate
court of appeals in the state.
The first case was filed on behalf of the Vermont Federation of Sportsmen’s Clubs, the
Vermont State Rifle & Pistol Association, Inc., two FFLs, and three individual Vermont residents.
David Thompson, who spoke earlier today, is assisting local counsel on it. This suit is
challenging only the magazine ban. For a timeline and links to all the documents in the case,
see the Sportsmen’s Clubs’ website here: https://www.vtfsc.com/lawsuit.
The challenge is brought under Chapter I, article 16, enacted in 1777 as part of the
Vermont Constitution – “That the people have a right to bear arms for the defence of
themselves and the State -- and as standing armies in time of peace are dangerous to liberty,
they ought not to be kept up; and that the military should be kept under strict subordination to
and governed by the civil power.” The Complaint goes through Vermont’s long history of
firearms possession and use, even before Vermont chose to join the United States in 1791, and
including the stories of the Green Mountain boys, two of the principal political figures in the
founding of Vermont and its history of gaining independence against the State of New York and
16
The opinion is available here: https://law.justia.com/cases/delaware/superior-court/2018/n18c-05-
047-jjc.html.
15
then Great Britain. It cites an article by Stephen Halbrook (who will speak later today) that
details the history of Vermont’s right to keep and bear arms provision – The Right to Bear Arms
in the First State Bill of Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts, 10
Vt. L. Rev. 255 (1985). It cites other historical works and unique Vermont history. It cites State
v. Rosenthal, 75 Vt. 295 (1903) in which the Vermont Supreme Court held a carry permit
requirement unconstitutional and “inconsistent with and repugnant to the Constitution and the
laws of the state.”
The Amended Complaint is only 18 pages in length and it is only a Complaint, so it does
not flesh out all the arguments that subsequent filings will. It is a great example of how to
introduce arguments in a Complaint – without going overboard as some Complaints do – and I
would encourage attorneys who are considering similar claims to read it.
Oral arguments on the State’s Motion to Dismiss were held on February 12, 2019 and a
decision is expected soon, though it is not expected that the Court will dismiss the case.
The other challenge, also brought in state court and on state constitutional grounds, is
filed on behalf of the Gun Owners of Vermont, Inc. This is a challenge to all the provisions of
S.55. The last action in this case was the state’s Motion to Dismiss filed in late November 2018.
You can read the filings in that case on Gun Owners’ website here:
http://gunownersofvermont.org/gun-owners-of-vermont-legal-defense-fund/. Briefly, the
State is arguing that, “to the extent any of these provisions implicate the Article 16 right,” they
survive review because they are justified by Vermont’s compelling state interest in protecting
residents from gun violence and impose only an incidental burden, at most, on the right to use
a firearm in self-defense. Additionally, those under 21 do not have a fundamental right to buy
retail firearms under Article 16 so that requiring them to complete an approved safety course in
order to do so is substantially related to the state’s interest in protecting the public safety.
The State is making another key argument in its Motion to Dismiss. Vermont is
asserting that the plaintiff chose not to challenge Vermont’s statute under the federal Second
Amendment because the plaintiffs know such a claim would fail under established Second
Amendment case law. Moreover, the State believes that the plaintiff cannot carry its “burden
of providing an explanation of how or why” the Vermont Constitution “affords greater rights
than the federal constitution.” According to Vermont, the state constitutional provision is
analogous to the Second Amendment and should be interpreted so. We’ll see.
State Constitutional Right to Hunt and Fish Provisions
16
As of today, 22 states guarantee the right to hunt in their state constitutions. Vermont’s
language is the oldest and dates back to 1777. 20 others have passed language since 1996 –
Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Minnesota,
Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas,
Virginia, Wisconsin, and Wyoming. (The right to hunt in the colonies and early states was
considered universal but not expressly enshrined in most state constitutions.) Many of these
state provisions were passed overwhelmingly by state voters. For example, Mississippi passed
its constitutional right to hunt and fish in 2014 with 88% percent of voters in favor. 80% of
Alabama voters in 2014 voted to strengthen its state’s language. Alaska has strong case law.
California and Rhode Island have language in their constitutions protecting the right to fish, but
not to hunt. Other states have considered adding such express provisions to their constitution
or will in the future. Still more states mention hunting in their right to keep and bear arms
provisions.
States that have these express right to hunt and fish constitutional provisions have
strong hunting traditions. Other states that don’t have such provisions but who have equally
strong hunting traditions – New York, Pennsylvania, and Ohio, for example – also have more
challenging current political backgrounds. It is simply more difficult to get these provisions
passed there.
Still, the movement to add these provisions is a reaction to what hunters view as a
threat to their rights and pastimes. The number of hunters is declining in many areas, and
there are more restrictions on hunting in many others. Development of land from farmland
and forests to housing and industrial use, reserving land for other recreational activities like
hiking and off-roading, as well as the pressures of animal rights groups are also concerns.
All those are genuine threats to hunting and fishing that will likely only increase in
future years. These provisions may become important and could become bases for challenges
to future hunting and fishing regulations, as well as to challenges to ranges and other shooting
facilities where hunters can practice their shooting skills. As of today, though, they just haven’t
done much. And for the purposes of the right to keep and bear arms, they will not by
themselves trump laws regulating firearms possession and ownership. For example, don’t
expect a court to invalidate a felon firearms prohibition on the basis of felons having the right
to hunt under their state constitutions.
For those wishing to read more, please see The Constitutional Right to Hunt: New
Recognition of an Old Liberty in Virginia, Stephen P. Halbrook, 19 Wm. & Mary Bill Rts. J. 197
(2010), available at https://scholarship.law.wm.edu/wmborj/vol19/iss1/5. This article contains
a good discussion of a Circuit Court opinion that looked at Virginia’s right to hunt in the context
of a hunting preserve that wanted to operate a sporting clays facility on its land but was denied
a conditional use permit for the facility. For a perspective from an animal and environmental
law professor opposing these amendments, see A Solution in Search of a Problem: The Difficulty
with State Constitutional ‘Right to Hunt” Amendments, Stacey Gordon, 35 Pub. Land &
Resources L. Rev. 3 (2015), available at https://scholarship.law.umt.edu/plrlr/vol35/iss1/4/.
17
Appendix - State Constitutional Right to Keep and Bear Arms
Provisions
Mr. Robert Dowlut was the first to compile this list of state constitutional provisions in
the 1980s and to write about their importance. I cite several of Mr. Dowlut’s articles in the
main body of these written materials.
18
Others have since updated the list and created other compilations, including one by
date. To read the provisions in the order in which they were enacted, and not by state, please
see Professor Eugene Volokh’s timeline at
http://www2.law.ucla.edu/volokh/beararms/statedat.htm. That list was compiled in 2006 and
so does not contain recent updates.
The list below are my updates through early March 2019. I have included some
additional case law compiled by Mr. Dowlut and Professor Volokh where appropriate.
** Please note that the case law I have included are mostly winning cases. Of course,
there have been plenty of state constitutional claims that have not been successful. See Arnold
v. City of Cleveland, 616 N.E.2d 163 (Ohio 1993), which upheld the ban on the possession and
sale of “assault weapons” in Cleveland. (Ohio passed state preemption in 2006). An attorney
thinking of bringing a state constitutional challenge must study those losing cases as well.
Alabama: (a) Every citizen has a fundamental right to bear arms in defense of himself of
herself and the state. Any restriction on this right shall be subject to strict scrutiny.
(b) No citizen shall be compelled by any international treaty or international law
to take an action that prohibits, limits, or otherwise interferes with his or her fundamental
right to keep and bear arms in defense of himself or herself and the state, if such treaty or
law, or its adoption, violates the United States Constitution. Art. I, § 26 (passed in 2014 as a
state ballot measure with a vote of 72.50% in favor, 27.50% against)
1819: That every citizen has a right to bear arms in defense of himself and the state.
Art. I, § 26 (enacted 1819, art. I, § 23; spelling changed from "defence" to "defense" in 1901).
[Self-defense right explicitly protected.]
Alaska: A well-regulated militia being necessary to the security of a free state, the right of
the people to keep and bear arms shall not be infringed. The individual right to keep and
bear arms shall not be denied or infringed by the State or a political subdivision of the State.
Art. I, § 19 (first sentence enacted 1959, second sentence added 1994).
[Individual right explicitly protected; provision enacted in 1994 when the individual right to
bear arms was generally understood as aimed at protecting self-defense.]
Arizona: The right of the individual citizen to bear arms in defense of himself or the State
shall not be impaired, but nothing in this section shall be construed as authorizing individuals
or corporations to organize, maintain, or employ an armed body of men. Art. II, § 26 (enacted
1912).
19
Arkansas: The citizens of this State shall have the right to keep and bear arms for their
common defense. Art. II, § 5 (enacted 1868, art. I, § 5).
1864: “That the free white men of this State shall have a right to keep and to bear arms for
their common defense.”
1861: “That the free white men and Indians of this State have the right to keep and bear
arms for their individual or common defense.”
1836: "That the free white men of this State shall have a right to keep and to bear arms for
their common defence." Art. II, § 21.
[Self-defense right protected, Arkansas Game and Fish Com'n v. Murders, 327 Ark. 426 (1997)
and Wilson v. State, 33 Ark. 557 (1878), which invalidated on state constitutional grounds a
statute prohibiting the carrying of arms except while travelling or on one’s own premises.]
California: No provision.
Colorado: The right of no person to keep and bear arms in defense of his home, person and
property, or in aid of the civil power when thereto legally summoned, shall be called in
question; but nothing herein contained shall be construed to justify the practice of carrying
concealed weapons. Art. II, § 13 (enacted 1876, art. II, § 13).
People v. Nakamura, 62 P.2d 246 (Colo. 1936) – found a state statute prohibiting unnaturalized
foreign-born residents from possessing firearms unconstitutional under the state right to keep
and bear arms guarantee.
City of Lakewood v. Pillow, 501 P.2d 744 (Colo. 1972) – struck down a local ordinance limiting
the possession and carrying of firearms as overbroad under the state right to keep and bear
arms guarantee.
People v. Dewitt, 275 P.3d 728 (Colo. Ct. App. 2011) – indicates that the Colorado arms
provision secures a broad right that could be applicable even to felons with recent convictions.
Connecticut: Every citizen has a right to bear arms in defense of himself and the state. Art. I,
§ 15 (enacted 1818, art. I, § 17). The original 1818 text came from the Mississippi Constitution
of 1817.
Rabbitt v. Leonard, 413 A.2d 489 (Super. Ct. 1979) – in a handgun licensing case, the court
noted that under the Connecticut Constitution, a citizen has a fundamental right to bear arms
in self-defense and a “liberty interest which must be protected by procedural due process.”
20
Scott Ennis et al. v. Dannel P. Malloy, 2018 WL 6721778, at *3 (Conn. Super Ct. Nov. 30, 2018).
This was a challenge by a disabled Connecticut resident to Connecticut’s 2013 ban on some
modern sporting arms, including those with features he would find most useful, and magazines
that hold more than 10 rounds.
“Our Supreme Court has interpreted the language of article first, § 15, to be
limiting. More particularly, our Supreme Court has stated that the language
‘demonstrates that the bearing of arms is not valued in and of itself, but only as a
means to particular ends … [Also,] it clearly indicates what purposes are not
accorded explicit constitutional protection: the bearing of arms for any purpose
other than defense of one’s self or the state.’ (Emphasis in original.) Benjamin v.
Bailey, 234 Conn. 455, 464, 662 A.2d 1226 (1995). … Citizens do not have carte
blanche in the selection of a weapon for self-defense. ‘The constitution does not
guarantee the right to possess any weapon of the individual’s choosing for use in
self-defense.’ (Emphasis in original.) Id., 465. ‘[A]s long as our citizens have
available to them some types of weapons that are adequate reasonably to
vindicate the right to bear arms in self-defense, the state may proscribe the
possession of other weapons without infringing on article first, § 15.’ (Emphasis
added.).”
One paragraph later, the Connecticut Supreme Court noted that “[a]dditionally,” the 2nd
Circuit had upheld the statute against a Second Amendment challenge using intermediate
scrutiny. The Connecticut Supreme Court therefore used a federal court’s interpretation
of the federal Second Amendment as instructive on how to interpret its own state
constitution.
Delaware: A person has the right to keep and bear arms for the defense of self, family, home
and State, and for hunting and recreational use. Art. I, § 20 (enacted 1987).
See the cases discussed earlier, as well as Griffin v. State, 47 A.3d 487 (Del. 2012). Delaware
citizens have a right to bear arms for defense of themselves, their families, and their homes.
The right is not absolute, but it does protect at least the right of a citizen to carry a concealed
deadly weapon in his home, and the defendant was entitled to an appropriate jury instruction.
Florida: (a) The right of the people to keep and bear arms in defense of themselves and of
the lawful authority of the state shall not be infringed, except that the manner of bearing
arms may be regulated by law.
(b) There shall be a mandatory period of three days, excluding weekends and legal
holidays, between the purchase and delivery at retail of any handgun. For the purposes of
this section, "purchase" means the transfer of money or other valuable consideration to the
retailer, and "handgun" means a firearm capable of being carried and used by one hand, such
as a pistol or revolver. Holders of a concealed weapon permit as prescribed in Florida law
21
shall not be subject to the provisions of this paragraph.
(c) The legislature shall enact legislation implementing subsection (b) of this section,
effective no later than December 31, 1991, which shall provide that anyone violating the
provisions of subsection (b) shall be guilty of a felony.
(d) This restriction shall not apply to a trade in of another handgun. Art. I, § 8 (sections (b)-
(d) added in 1990).
1968: "The right of the people to keep and bear arms in defense of themselves and of the
lawful authority of the state shall not be infringed, except that the manner of bearing arms may
be regulated by law." Art. I, § 8.
1885: "The right of the people to bear arms in defence of themselves and the lawful
authority of the State, shall not be infringed, but the Legislature may prescribe the manner in
which they may be borne." Art. I, § 20.
1868: "The people shall have the right to bear arms in defence of themselves and of the
lawful authority of the State." Art. I, § 22.
1865: Clause omitted.
1838: "That the free white men of this State shall have a right to keep and to bear arms for
their common defence." Art. I, § 21.
[Self-defense right protected, Alexander v. State, 450 So.2d 1212 (Fla. App. 1984).]
Georgia: The right of the people to keep and bear arms shall not be infringed, but the
General Assembly shall have power to prescribe the manner in which arms may be borne.
Art. I, § 1, ¶ VIII (enacted 1877, art. I, § XXII).
1868: "A well-regulated militia being necessary to the security of a free people, the right of
the people to keep and bear arms shall not be infringed; but the general assembly shall have
power to prescribe by law the manner in which arms may be borne." Art. I, § 14.
1865: "A well-regulated militia, being necessary to the security of a free State, the right of
the people to keep and bear arms shall not be infringed." Art. I, § 4.
[Self-defense right protected, McCoy v. State, 157 Ga. 767 (1924).]
Hawaii: A well regulated militia being necessary to the security of a free state, the right of
the people to keep and bear arms shall not be infringed. Art. I, § 17 (enacted 1959).
[No decision about whether self-defense right is protected.]
Idaho: The people have the right to keep and bear arms, which right shall not be abridged;
but this provision shall not prevent the passage of laws to govern the carrying of weapons
concealed on the person nor prevent passage of legislation providing minimum sentences for
crimes committed while in possession of a firearm, nor prevent the passage of legislation
providing penalties for the possession of firearms by a convicted felon, nor prevent the
passage of any legislation punishing the use of a firearm. No law shall impose licensure,
registration or special taxation on the ownership or possession of firearms or ammunition.
Nor shall any law permit the confiscation of firearms, except those actually used in the
22
commission of a felony. Art. I, § 11 (enacted 1978).
1889: "The people have the right to bear arms for their security and defense; but the
Legislature shall regulate the exercise of this right by law." Art. I, § 11.
[Self-defense right protected under both the Idaho constitution and the Second Amendment, In
re Brickey, 70 P. 609 (Idaho 1902).]
Illinois: Subject only to the police power, the right of the individual citizen to keep and bear
arms shall not be infringed. Art. I, § 22 (enacted 1970).
[Self-defense right protected, Kalodimos v. Village of Morton Grove, 470 N.E.2d 266 (Ill. 1984).]
People v. Chairez, 2018 IL 121417, *48 (2018). The Illinois Supreme Court has taken a broad
view of the core right. Here, it struck down a statute prohibiting the carrying or possession of a
firearm within 1,000 feet of a public park. The statute “prohibits the carriage of weapons in
public for self-defense, thereby reaching the core of the second amendment.”
Indiana: The people shall have a right to bear arms, for the defense of themselves and the
State. Art. I, § 32 (enacted 1851, art. I, § 32).
1816: That the people have a right to bear arms for the defense of themselves and the
State, and that the military shall be kept in strict subordination to the civil power. Art. I, § 20.
[Self-defense right protected, Kellogg v. City of Gary, 562 N.E.2d 685 (Ind. 1990), in which the
Indiana Supreme Court wrote in a civil rights claim for violating the right to bear handguns:
“The right of Indiana citizens to bear arms for their own self-defense and for the defense of the
state is an interest in both liberty and property which is protected by the Fourteenth
Amendment to the Federal Constitution ... This interest is one of liberty to the extent that it
enables law-abiding citizens to be free from the threat and danger of violent crime.”
Civil suits can also lead to analyses of a state’s right to keep and bear arms provision. In one
1980 case out of Indiana in which a plaintiff sought to obtain a carry permit, the Indiana Court
of Appeals stated:
Our Art. 1, Sec. 32, is worded differently than the Second Amendment. It states simply
and plainly,
"The people shall have a right to bear arms, for the defense of themselves and the
State."
It is well settled that we are to presume that constitutional language was carefully
chosen to express the framer's intention… The words used are to be taken in their
general and ordinary sense. …
23
Moreover, the constitutional debate over this section underscores the framers' intent
that two purposes, rather than one, were served by the section. Thus, the introduction
to one stage of debate opened with the following,
"The twelfth section, providing that no law should restrict the right of the people to
bear arms, whether in defense of themselves or of the state, next came up in order." 2
Debates in Indiana Convention 1850, at 1391.
We think it clear that our constitution provides our citizenry the right to bear arms for
their self-defense. Furthermore, in Matthews v. State, supra, our Supreme Court held
that if it is determined under IC 35-23-4.1-5 that the applicant has met the conditions of
the statute, the superintendent has no discretion to withhold the license. 148 N.E.2d
337.
In Schubert's case it is clear from the record that the superintendent decided the
application on the basis that the statutory reference to "a proper reason" vested in him
the power and duty to subjectively evaluate an assignment of "self-defense" as a reason
for desiring a license and the ability to grant or deny the license upon the basis of
whether the applicant "needed" to defend himself.
Such an approach contravenes the essential nature of the constitutional guarantee. It

would supplant a right with a mere administrative privilege which might be withheld
simply on the basis that such matters as the use of firearms are better left to the
organized military and police forces even where defense of the individual citizen is
involved.
Schubert v. DeBard, 398 N.E.2d 1339, 1341 (Ind. Ct. App. 1980).
Iowa: No provision yet, but see footnote 8 in the main body of these written materials.
Kansas: Individual right to bear arms; armies. A person has the right to keep and bear arms
for the defense of self, family, home and state, for lawful hunting and recreational use, and
for any other lawful purpose; but standing armies, in time of peace, are dangerous to liberty,
and shall not be tolerated, and the military shall be in strict subordination to the civil power.”
Art. I, § 4 (enacted in 2010 after a ballot measure in which 88.2% versus 11.7% voted for the
amendment).
1859: “The people have the right to bear arms for their defense and security; but
standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the
military shall be in strict subordination to the civil power.” Art. I, § 4.
A 1905 decision, City of Salina v. Blaksley, 83 P. 619 (Kan. 1905), had interpreted the 1859
provision as protecting a collective right only, not recognizing an individual right to arms.
Subsequent case law, but before the 2010 change to the constitution, was negative as well,
though the court in City of Junction City v. Mevis, 601 P.2d 1145 (Kan. 1979) did strike down a
24
local ordinance as overbroad because it essentially criminalized the possession of a firearm
anywhere in the city except in a person’s home or place of business.
Kentucky: All men are, by nature, free and equal, and have certain inherent and inalienable
rights, among which may be reckoned: ...
Seventh: The right to bear arms in defense of themselves and of the State, subject to the
power of the General Assembly to enact laws to prevent persons from carrying concealed
weapons. § 1 (enacted 1891).
1850: "That the rights of the citizens to bear arms in defense of themselves and the State
shall not be questioned; but the General Assembly may pass laws to prevent persons from
carrying concealed arms." Art. XIII, § 25.
1799: "That the rights of the citizens to bear arms in defense of themselves and the State
shall not be questioned." Art. X, § 23.
1792: "That the right of the citizens to bear arms in defense of themselves and the State
shall not be questioned." Art. XII, § 23.
Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (Ky. 1822). This was the first state court decision
finding a statute unconstitutional under the state’s right to keep and bear arms provision.
It found a statute prohibiting the concealed carry of a weapon unconstitutional under the
state’s right to keep and bear arms provision.
Louisiana: The right of each citizen to keep and bear arms is fundamental and shall not be
infringed. Any restriction on this right shall be subject to strict scrutiny. Art. I, § 11 (enacted
in 2012 after a state ballot measure was approved by voters 73.45% in favor, 26.55% against).
1974: The right of each citizen to keep and bear arms shall not be abridged, but this
provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed
on the person. Art. I, § 11.
1879: "A well regulated militia being necessary to the security of a free State, the right of
the people to keep and bear arms shall not be abridged. This shall not prevent the passage of
laws to punish those who carry weapons concealed." Art. 3.
[Self-defense right protected, State v. Chaisson, 457 So.2d 1257 (La. App. 1984).]
Maine: Every citizen has a right to keep and bear arms and this right shall never be
questioned. Art. I, § 16 (enacted 1987 in reaction to the state’s Supreme Court decision in
State v. Dennis Friel, 508 A.2d 123 (Me. 1986) holding that the right secured by the 1819
provision was limited to “the common defense” only. The 1986 Friel court also held that the
Second Amendment was inapplicable to the case.)
1819: "Every citizen has a right to keep and bear arms for the common defence; and this
right shall never be questioned." Art. I, § 16.
[Self-defense right protected, State v. Brown, 571 A.2d 816 (Me. 1990) while still upholding a
felon in possession conviction and writing that the constitutional provision does not prevent
reasonable regulation of the constitutionally granted police powers. The lower, Superior Court
25
had concluded that there was no rational relationship between the possession of a firearm by a
person previously convicted of a nonviolent felony and a threat to public safety.]
The Brown Court looked at the State Attorney General’s explanation for the amendment to the
constitutional provision, “common sense,” and how other courts had read their arms
provisions. The Court interpreted the 1987 amendment, which deleted the words “for the
common defense” as evidence only that the amendment was intended to transform a collective
right to bear arms into an individual right.
Maryland: No provision.
Massachusetts: The people have a right to keep and to bear arms for the common defence.
And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained
without the consent of the legislature; and the military power shall always be held in an exact
subordination to the civil authority, and be governed by it. Pt. 1, art. 17 (enacted 1780).
[Interpreted as a collective right only, Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976).]
Michigan: Every person has a right to keep and bear arms for the defense of himself and the
state. Art. I, § 6 (enacted 1963).
1850: "Every person has a right to bear arms for the defense of himself and the state." Art.
XVIII, § 7.
1835: "Every person has a right to bear arms for the defence of himself and the State." Art.
I, § 13.
People v. Yanna, 824 N.W.2d 241 (Mich. Ct. App. 2012) – state statute prohibiting possession of
tasers and stun guns is unconstitutional under both the Michigan constitutional right to keep
and bear arms and the Second Amendment.
People v. Zerillo, 189 N.W. 927 (Mich. 1922) – part of a statute making it a crime for an
unnaturalized foreign-born resident to possess a revolver without permission by the sheriff is
contrary to the state’s right to keep and bear arms provision.
Minnesota: No provision.
Mississippi: The right of every citizen to keep and bear arms in defense of his home, person,
or property, or in aid of the civil power when thereto legally summoned, shall not be called in
question, but the legislature may regulate or forbid carrying concealed weapons. Art. III, § 12
(enacted 1890).
1868: "All persons shall have a right to keep and bear arms for their defence." Art. I, § 15.
1832: "Every citizen has a right to bear arms in defence of himself and of the State." Art. I,
§ 23.
26
1817: "Every citizen has a right to bear arms, in defence of himself and the State." Art. I, §
23.
Missouri: That the right of every citizen to keep and bear arms, ammunition, and accessories
typical to the normal function of such arms, in defense of his home, person, family and
property, or when lawfully summoned in aid of the civil power, shall not be questioned. The
rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be
subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights
and shall under no circumstances decline to protect against their infringement. Nothing in
this section shall be construed to prevent the general assembly from enacting general laws
which limit the rights of convicted violent felons or those duly adjudged mentally infirm by a
court of competent jurisdiction. Art. I, § 23 (enacted after a 2014 state ballot measure
approved by 60.95% of voters in favor, 39.05% against).
1945: That the right of every citizen to keep and bear arms in defense of his home, person
and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but
this shall not justify the wearing of concealed weapons. Art. I, § 23.
1875: "That the right of no citizen to keep and bear arms in defense of his home, person
and property, or in aid of the civil power, when thereto legally summoned, shall be called into
question; but nothing herein contained is intended to justify the practice of wearing concealed
weapons." Art. II, § 17.
1865: "That the people have the right peaceably to assemble for their common good, and
to apply to those vested with the powers of government for redress of grievances by petition or
remonstrance; and that their right to bear arms in defence of themselves and of the lawful
authority of the State cannot be questioned." Art. I, § 8.
1820: "That the people have the right peaceably to assemble for their common good, and
to apply to those vested with the powers of government for redress of grievances by petition or
remonstrance; and that their right to bear arms in defence of themselves and of the State
cannot be questioned." Art. XIII, § 3.
Montana: The right of any person to keep or bear arms in defense of his own home, person,
and property, or in aid of the civil power when thereto legally summoned, shall not be called
in question, but nothing herein contained shall be held to permit the carrying of concealed
weapons. Art. II, § 12 (enacted 1889).
Nebraska: All persons are by nature free and independent, and have certain inherent and
inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to
keep and bear arms for security or defense of self, family, home, and others, and for lawful
common defense, hunting, recreational use, and all other lawful purposes, and such rights
27
shall not be denied or infringed by the state or any subdivision thereof. Art. I, § 1 (enacted
1988).
Nevada: Every citizen has the right to keep and bear arms for security and defense, for lawful
hunting and recreational use and for other lawful purposes. Art. I, § 11(1) (enacted 1982).
New Hampshire: All persons have the right to keep and bear arms in defense of themselves,
their families, their property and the state. Pt. 1, art. 2-a (enacted 1982).
New Jersey: No provision.
New Mexico: No law shall abridge the right of the citizen to keep and bear arms for security
and defense, for lawful hunting and recreational use and for other lawful purposes, but
nothing herein shall be held to permit the carrying of concealed weapons. No municipality or
county shall regulate, in any way, an incident of the right to keep and bear arms. Art. II, § 6
(first sentence enacted in 1971, second sentence added 1986).
1912: "The people have the right to bear arms for their security and defense, but nothing
herein shall be held to permit the carrying of concealed weapons." Art. II, § 6.
City of Las Vegas v. Moberg, 485 P.2d 737 (N.M. Ct. App. 1971) – carry ordinance as it relates to
open carry is unconstitutional under the state’s right to keep and bear arms provision.
New York: No provision.
North Carolina: A well regulated militia being necessary to the security of a free State, the
right of the people to keep and bear arms shall not be infringed; and, as standing armies in
time of peace are dangerous to liberty, they shall not be maintained, and the military shall be
kept under strict subordination to, and governed by, the civil power. Nothing herein shall
justify the practice of carrying concealed weapons, or prevent the General Assembly from
enacting penal statutes against that practice. Art. 1, § 30 (enacted 1971).
1876: "A well-regulated militia being necessary to the security of a free State, the right of
the people to keep and bear arms shall not be infringed; and, as standing armies, in time of
peace, are dangerous to liberty, they ought not to be kept up, and the military should be kept
under strict subordination to, and governed by, the civil power. Nothing herein contained shall
justify the practice of carrying concealed weapons, or prevent the Legislature from enacting
penal statutes against said practice."
28
1868: "A well-regulated militia being necessary to the security of a free State, the right of
the people to keep and bear arms shall not be infringed; and, as standing armies, in time of
peace, are dangerous to liberty, they ought not to be kept up, and the military should be kept
under strict subordination to, and governed by, the civil power." Art. I, § 24.
1776: "That the people have a right to bear arms, for the defence of the State; and, as
standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and
that the military should be kept under strict subordination to, and governed by, the civil
power." Bill of Rights, § XVII.
Self-defense right protected, State v. Kerner, 107 S.E. 222 (N.C. 1921) – struck down a pistol
carrying license and bond requirement under the state’s right to keep and bear arms provision.
In Kerner, the North Carolina Supreme Court discussed the criteria for which arms are
constitutionally protected in the state:
To him [the ordinary private citizen] the rifle, the musket, the shotgun, and the
pistol are about the only arms which he could be expected to “bear,” and his
right to do this is that which is guaranteed by the Constitution. To deprive him
of bearing any of these arms is to infringe upon the right guaranteed to him by
the Constitution.
North Carolina also has some good case law on rights restoration and its state arms
provision. In Britt v. State, 681 S.E.2d 320 (N.C. 2009), the North Carolina Supreme
Court held that the state’s felon prohibition was unconstitutional as it applied to the
plaintiff who had a non-violent felony conviction 40 years earlier and nothing since. In
Baysden v. State, 718 S.E.2d 699 (N.C. Ct. App. 2011), the North Carolina Court of
appeals held that the state’s ban on possession of guns by a felon violates the North
Carolina Constitution’s right to bear arms provision as to someone with two over-30-
year-old nonviolent felony convictions. These cases suggest that as-applied challenges
brought by people with very old felony convictions might indeed succeed in some states
if they are brought under state constitutional provisions and the Second Amendment. If
a felon’s rights are restored under state law, that should also lift the federal ban on that
individual’s gun possession. 18 U.S.C. § 921(20).
North Dakota: All individuals are by nature equally free and independent and have certain
inalienable rights, among which are those of enjoying and defending life and liberty;
acquiring, possessing and protecting property and reputation; pursuing and obtaining safety
and happiness; and to keep and bear arms for the defense of their person, family, property,
and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not
be infringed. Art. I, § 1 (enacted 1984).
Ohio: The people have the right to bear arms for their defense and security; but standing
armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military
29
shall be in strict subordination to the civil power. Art. I, § 4 (enacted 1851).
1802: "That the people have a right to bear arms for the defence of themselves and the
State; and as standing armies, in time of peace, are dangerous to liberty, they shall not be kept
up, and that the military shall be kept under strict subordination to the civil power." Art. VIII, §
20.
[Self-defense right protected, Arnold v. Cleveland, 616 N.E.2d 163 (Ohio 1993).]
In re. Reilly, 31 Ohio Dec. 364 (C.P. 1919) – struck down an ordinance that made it unlawful for
any person to act as a special guard during industrial disturbances or strikes without the prior
consent of the director of public safety and posting a bond. The case contains one of my
favorite lines in a right to keep and bear arms case: “This ordinance is so manifestly invalid and
unconstitutional that none of the extremest presumptions as to the validity of legislation
enactments can serve to redeem any phase of it.”
Oklahoma: The right of a citizen to keep and bear arms in defense of his home, person, or
property, or in aid of the civil power, when thereunto legally summoned, shall never be
prohibited; but nothing herein contained shall prevent the Legislature from regulating the
carrying of weapons. Art. II, § 26 (enacted 1907).
Oregon: The people shall have the right to bear arms for the defence of themselves, and the
State, but the Military shall be kept in strict subordination to the civil power[.] Art. I, § 27
(enacted 1857, art. I, § 28).
[Self-defense right protected, State v. Hirsch, 114 P.3d 1104 (Ore. 2005).]
State v. Kessler, 614 P.2d 94 (Or. 1980) – the Oregon right to arms includes those hand-carried
weapons commonly used by individuals for both personal defense and military defense. As a
result, the defendant’s possession of a billy club in his home is protected by the Oregon right to
keep and bear arms provision. Extended in State v. Blocker, 630 P.2d 824 (Or. 1981) for
possession of a billy club outside the home.
Extended again to the possession and carrying of a switchblade outside the home in State v.
Delgado, 692 P.2d 610 (Or. 1984), in which the Oregon Supreme Court wrote: “At one time the
single-action, single-shot handgun was carried by many men for defense. Did the development
of the double-action feature of the handgun or the addition of the revolving cylinder which
enabled one to fire the gun several times without pausing to reload, as a matter of law,
transform the handgun from a defensive weapon to an offensive weapon? Obviously, the gun,
both before and after such changes, could be used for either defense or offense.”
30
Barnett v. State, 695 P.2d 991 (Or. Ct. App. 1985) – based upon previous case law, the state
conceded that part of statute prohibiting the possession of a blackjack is unconstitutional under
the state right to keep and bear arms provision.
State v. Stevens, 833 P.2d 318 (Or. Ct. App. 1992) – defendant could not be convicted of
carrying a switchblade concealed within his own home without violating Oregon’s right to keep
and bear arms provision.
Pennsylvania: The right of the citizens to bear arms in defence of themselves and the State
shall not be questioned. Art. 1, § 21 (enacted 1790, art. IX, § 21).
1776: That the people have a right to bear arms for the defence of themselves and the
state; and as standing armies in the time of peace are dangerous to liberty, they ought not to
be kept up; And that the military should be kept under strict subordination, to, and governed
by, the civil power. Declaration of Rights, cl. XIII.
[Self-defense right protected, Sayres v. Commonwealth, 88 Pa. 291 (1879).]
Rhode Island: The right of the people to keep and bear arms shall not be infringed. Art. I, §
22 (enacted 1842).
[Self-defense right protected, Mosby v. Devine, 851 A.2d 1031 (R.I. 2004). The state’s historical
use of the phrase “bear arms” relates to military service and the common defense, though that
connection “does not undermine the individual right to ‘keep’ arms in one’s home or in his or
her place of business. It is the keeping of arms that is the sine qua non of the individual right”
under the state constitution. Emphasis in original. Still, the handgun carry licensing scheme
falls under a reasonable legislative regulation of weapons under the state’s police power.]
South Carolina: A well regulated militia being necessary to the security of a free State, the
right of the people to keep and bear arms shall not be infringed. As, in times of peace, armies
are dangerous to liberty, they shall not be maintained without the consent of the General
Assembly. The military power of the State shall always be held in subordination to the civil
authority and be governed by it. Art. 1, § 20 (enacted 1895).
1868: "The people have a right to keep and bear arms for the common defence. As, in
times of peace, armies are dangerous to liberty, they ought not to be maintained without the
consent of the general assembly. The military power ought always to be held in an exact
subordination to the civil authority, and be governed by it." Art. I, § 28.
[Right treated as an individual right, apparently aimed at least partly at self-defense, State v.
Johnson, 16 S.C. 187 (1881)].
South Dakota: The right of the citizens to bear arms in defense of themselves and the state
shall not be denied. Art. VI, § 24 (enacted 1889).
[Self-defense right protected, Conaty v. Solem, 422 N.W.2d 102 (S.D. 1988).]
31
Tennessee: That the citizens of this State have a right to keep and to bear arms for their
common defense; but the Legislature shall have power, by law, to regulate the wearing of
arms with a view to prevent crime. Art. I, § 26 (enacted 1870).
1834: "That the free white men of this State have a right to keep and to bear arms for their
common defence." Art. I, § 26.
1796: "That the freemen of this State have a right to keep and to bear arms for their
common defence." Art. XI, § 26.
[Self-defense right protected, State v. Foutch, 34 S.W. 1 (Tenn. 1896).]
Smith v. Isenhour, 43 Tenn. 214 (Tenn. 1866) – found a gun confiscation statute
unconstitutional under the state right to keep and bear arms provision.
Glasscock v. City of Chattanooga, 11 S.W.2d 678 (Tenn. 1928) – struck down city ordinance that
prohibited the carry of a pistol as overbroad.
Another case that you will see frequently cited as the most important Tennessee right to keep
and bear arms case is Andrews v. State, 50 Tenn. 165 (Tenn. 1871). Here is some of its broad
language:
“The right to keep arms, necessarily involves the right to purchase them, to keep
them in a state of efficiency for use, and to purchase and provide ammunition
suitable for such arms, and to keep them in repair. And clearly for this purpose,
a man would have the right to carry them to and from his home, and no one
could claim that the Legislature had the right to punish him for it, without
violating this clause of the Constitution.
But further than this, it must be held, that the right to keep arms involves,
necessarily, the right to use such arms for all the ordinary purposes, and in all
the ordinary modes usual in the country, and to which arms are adapted, limited
by the duties of a good citizen in times of peace; that in such use, he shall not
use them for violation of the rights of others, or the paramount rights of the
community of which he makes a part.”
Texas: Every citizen shall have the right to keep and bear arms in the lawful defense of
himself or the State; but the Legislature shall have power, by law, to regulate the wearing of
arms, with a view to prevent crime. Art. I, § 23 (enacted 1876).
1868: "Every person shall have the right to keep and bear arms in the lawful defence of
himself or the State, under such regulations as the legislature may prescribe." Art. I, § 13.
1845: "Every citizen shall have the right to keep and bear arms in lawful defence of himself
or the State." Art. I, § 13.
1836: "Every citizen shall have the right to bear arms in defence of himself and the
republic. The military shall at all times and in all cases be subordinate to the civil power."
32
Declaration of Rights, cl. 14.
Jennings v. State, 5 Tex. App. 298 (Tex. Ct. App. 1878) – found unconstitutional under the Texas
right to keep and bear arms provision a law requiring the forfeiture of a pistol after a
misdemeanor conviction.
State v. Duke, 42 Tex. 455 (Tex. 1875) – in discussing what types of firearms are constitutionally
protected, the Texas Supreme Court wrote: “The arms which every person is secured the right
to keep and bear (in the defense of himself or the State, subject to legislative regulation), must
be such arms as are commonly kept, according to the customs of the people, and are
appropriate for open and manly use in self-defense, as well as such as are proper for the
defense of the State.” This was an expansion of a previous Texas Supreme Court case that said
the right protected those arms “as are used for purposes of war.” English v. State, 35 Tex. 473
(Tex. 1872).
Utah: The individual right of the people to keep and bear arms for security and defense of
self, family, others, property, or the state, as well as for other lawful purposes shall not be
infringed; but nothing herein shall prevent the legislature from defining the lawful use of
arms. Art. I, § 6 (enacted 1984).
1896: "The people have the right to bear arms for their security and defense, but the
legislature may regulate the exercise of this right by law."
Vermont: That the people have a right to bear arms for the defence of themselves and the
State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be
kept up; and that the military should be kept under strict subordination to and governed by
the civil power. Ch. I, art. 16 (enacted 1777, ch. I, art. 15).
[Self-defense right protected, State v. Rosenthal, 55 A. 610 (Vt. 1903). See the earlier
discussion of current litigation in Vermont for more on Rosenthal.]
Virginia: That a well regulated militia, composed of the body of the people, trained to arms,
is the proper, natural, and safe defense of a free state, therefore, the right of the people to
keep and bear arms shall not be infringed; that standing armies, in time of peace, should be
avoided as dangerous to liberty; and that in all cases the military should be under strict
subordination to, and governed by, the civil power. Art. I, § 13 (enacted 1776 without explicit
right to keep and bear arms; "therefore, the right to keep and bear arms shall not be infringed"
added in 1971).
In DiGiacinto v. Rector & Visitors of George Mason Univ., 704 S.E.2d 365 (Va. 2011), the Virginia
Supreme Court wrote that “the protection of the right to bear arms in Article 1, § 13 of the
33
Virginia Constitution is co-extensive with the rights provided by the Second Amendment.” A
Virginia Attorney opinion from 2011 echoed that. 2011 Va. AG LEXIS 35.
Washington: The right of the individual citizen to bear arms in defense of himself, or the
state, shall not be impaired, but nothing in this section shall be construed as authorizing
individuals or corporations to organize, maintain or employ an armed body of men. Art. I, §
24 (enacted 1889).
State v. Spiers, 79 P.3d 30 (Wash. App. 2003) – part of state statute prohibiting ownership of a
firearm while free on bond for a serious offense unconstitutional under the Washington right to
keep and bear arms provision.
West Virginia: A person has the right to keep and bear arms for the defense of self, family,
home and state, and for lawful hunting and recreational use. Art. III, § 22 (enacted 1986).
State ex rel. City of Princeton v. Buckner, 377 S.E. 2d 139 (W. Va. 1988) - the statutory
prohibition against carrying a dangerous or deadly weapon is overbroad and violative of the
state’s right to keep and bear arms provision.
Wisconsin: The people have the right to keep and bear arms for security, defense, hunting,
recreation or any other lawful purpose. Art. I, § 25 (enacted 1998).
[Self-defense right protected, State v. Fisher, 714 N.W.2d 495 (Wis. 2006).]
State v. Hamdan, 665 N.W.2d 785 (Wis. 2003) – state concealed carry statute was
unconstitutional as applied to defendant.
State v. Herrmann, 873 N.W.2d 257 (Wis. App. 2015) – state statute prohibiting possession of
switchblades was unconstitutional as applied to defendant under both the Wisconsin
constitution and the Second Amendment.
Wyoming: The right of citizens to bear arms in defense of themselves and of the state shall
not be denied. Art. I, § 24 (enacted 1889).
[Self-defense right protected, State v. McAdams, 714 P.2d 1236 (Wyo. 1986).]
34
Special Lunch Presentation
Gun Culture 2.0, or How a Liberal Professor Became an Armed

American
Professor David Yamane

Received: 16 November 2016 Accepted: 16 May 2017
DOI: 10.1111/soc4.12497
ARTICLE
The sociology of U.S. gun culture

David Yamane
Department of Sociology, Wake Forest

University Abstract
Correspondence Despite the fact that a robust culture centered on the legal owner-
David Yamane, Department of Sociology, ship and use of guns by law‐abiding gun owners exists in the United
Wake Forest University, Winston‐Salem, NC States, there is no sociology of U.S. gun culture. Rather, the social sci-
27109, USA.
entific study of guns is dominated by criminological and epidemiolog-
Email: yamaned@wfu.edu
ical studies of gun violence. As a corrective to this oversight, I outline
what a sociology of U.S. gun culture should look like. In the first sec-
tion, I give a brief history of U.S. gun culture from the founding era
through the 1960s. Guns began as tools of necessity in the colonies
and on the frontier, but evolved into equipment for sport hunting and
shooting, as well as desired commodities for collecting. The second
section examines these recreational pursuits which formed the core
of U.S. gun culture for most of the 20th century. Although recreation
remains an important segment, the central emphasis of U.S. gun
culture has gradually shifted to armed self‐defense over the course
of the past half‐century. The third section examines the rise of this
culture of armed citizenship, what I call “Gun Culture 2.0,” the
current iteration of the country's historic gun culture. I conclude
by suggesting important avenues for future research.
1 | I N T RO DU CT I O N
The world today is awash in a sea of small arms in the hands of civilians, with the United States leading the way by a
considerable margin. Although there is no official registry of firearms, the Small Arms Survey estimated that there are
270 million civilian owned firearms (and counting) in the United States., including handguns, rifles, and shotguns
(Graduate Institute of International Studies, 2007). Two decades ago, Wright (1995, p. 64) observed that there is
“nearly one gun for every man, woman, and child in the country.” This remains true today, as the size of the population
and the civilian gun stock have grown together.
Despite the fact that “gun ownership is normative, not deviant, behavior across vast swaths of the social
landscape” (Wright, 1995, p. 64), there is no sociology of guns, per se. Most research examines guns in connection
with crime and violence, either from a criminological (Harcourt, 2006) or public health perspective (Hemenway,
-------------------------------------------------------------------------------------------------------
This is an open access article under the terms of the Creative Commons Attribution‐NonCommercial‐NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited, the use is non‐commercial and no modifications or
adaptations are made.
© 2017 The Authors. Sociology Compass Published by John Wiley & Sons Ltd.
Sociology Compass. 2017;11:e12497. wileyonlinelibrary.com/journal/soc4 1 of 10

https://doi.org/10.1111/soc4.12497
2 of 10 YAMANE
2004). As a corrective to this oversight, I take my cue from Wright (1995) and use the scant sociological literature on
the legal use of firearms by lawful gun owners to outline what a sociology of U.S. gun culture should look like. I focus
here exclusively on the U.S. because it has more guns than any other country and appears unique in the world in hav-
ing a strong cultural association of guns with personal identity and national values—i.e., in having a gun culture (Cook
& Goss, 2014, p. 155; Wright, Rossi, & Daly, 1983).
In the first section, I give a brief history of U.S. gun culture from the founding era through the 1960s. Guns began
as tools of necessity in the colonies and on the frontier but evolved into equipment for sport hunting and shooting, as
well as desired commodities for collecting. The second section examines these recreational pursuits which formed the
core of U.S. gun culture for most of the 20th century. Although recreation remains an important segment, the central
emphasis of U.S. gun culture has gradually shifted to armed self‐defense over the course of the past half‐century. The
third section examines the rise of this culture of armed citizenship, what I call “Gun Culture 2.0,” the current iteration
of the country's historic gun culture. I conclude by suggesting important avenues for future research.
2 | U.S . GUN C ULTURE: A BRIEF H ISTO RY
In “America as a Gun Culture,” historian Richard Hofstadter (1970) remarked on—more accurately, he lamented—the
uniqueness of the United States “as the only modern industrial urban nation that persists in maintaining a gun culture.”
In Hofstadter's account, U.S. gun culture is rooted in the reality of widespread, lawful possession of firearms by a large
segment of the population. He recognizes that guns as material objects are central to the construction of any gun
culture. Without guns, there is no gun culture. But in itself, this is a trivial statement. What is crucial to explain is
how people understand and use guns, as well as how guns themselves change over time, both responding to and
facilitating different understandings and uses (Haag, 2016; Kohn, 2004).
Guns were a significant aspect of the social history of the U.S. from the outset (Winkler, 2011). As Cramer
(2006, p. 236) argues, “Gun ownership appears to have been the norm for freemen, and not terribly unusual for free
women and at least male children, through the Colonial, Revolutionary, and early Republic periods.” Of course, guns
then were not as plentiful or as loaded with symbolism as they would come to be. The 19th century shift from craft
to industrial production, from hand‐made unique parts to machine‐made interchangeable parts, dramatically increased
manufacturing capacities, and gun manufacturing played a central role in this development. And like other mass
produced commodities, the guns had to be sold to the public; where markets for them did not already exist, they
had to be created (Haag, 2016). As the nation developed, so too did gun culture.
“What began as a necessity of agriculture and the frontier,” Hofstadter (1970) observed, “took hold as a sport and
as an ingredient in the American imagination.” Hunting became not only a source of food but a dominant form of
recreation for many, and casual target shooting competitions were commonplace on the frontier in the 19th century.
At midcentury, Schützenbünde—fraternal shooting clubs—flourished in many cities with sizable German populations
including New York, Cincinnati, Milwaukee, and San Francisco (Gilmore, 1999). These realities in the United States,
and the organization of rifle/target shooting organizations in England and Canada in the 1850s and 1860s, make
the founding of the National Rifle Association (NRA) in 1871 more understandable (Gilmore, 1999; Hummel, 1985).
The NRA has played a significant role in promoting America's gun culture since its founding in 1871, beginning with
its efforts to promote rifle marksmanship through long‐range shooting competitions. Although better known today for
its political activities, for over 100 years, the NRA has overseen rifle and pistol target shooting competitions at Camp
Perry, Ohio, known as “The National Matches” (Hummel, 1985). These marksmanship events represent on the
national and expert level a type of recreational shooting enjoyed by thousands of gun owners across the country.
Into the 20th century, hunting continued to be an important part of U.S. gun culture, particularly in the South, but
in rural areas of other regions of the country as well, and among urban‐dwellers looking for some escape from city life
(Marks, 1991). Especially as part of socialization into hunting, receiving a “real” rifle became seen as a rite of passage
from boyhood into manhood (Littlefield & Ozanne, 2011). The gun industry also promoted guns as objects of (typically
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masculine) desire through the mass advertising that was increasingly embraced by corporate America to fuel con-
sumer capitalism. Gun collecting as an avocation and business arose in the early 20th century in conjunction with this
evolution away from a purely utilitarian view of guns (Haag, 2016).
As the citations in this brief section suggest, sociologists have been noticeably absent in historical studies of U.S.
gun culture. This is unfortunate because, as Tonso (1982) suggested decades ago, understanding Americans' contem-
porary attachment to guns would benefit from understanding the roots of its attachment historically. As the following
section on contemporary studies of hunting, target shooting, and collecting as recreational activities demonstrates,
sociologists continue to ignore significant aspects of U.S. gun culture today.
3 | R E C R E A T I O N A L G U N CU L T U R E
Writing in the mid‐1990s, Wright (1995, p. 64–65) observed that most guns in America are “owned for socially innocuous
sport and recreation purposes,” and therefore, that “gun ownership is apparently a topic more appropriate to the sociol-
ogy of leisure than to the criminology or epidemiology of violence.” A 1978 survey of gun owners found that 71 percent
owned them for leisure purposes (hunting, target shooting, and collecting) (Wright et al., 1983, p. 60). Twenty years later,
an ABC News/Washington Post poll similarly found that nearly two‐thirds of the respondents cited recreation as the
main reason they owned a firearm, including 49 percent hunting, 8 percent target/sport shooting, and 4 percent collecting
(Pew Research Center, 2013). The 2015 National Firearms Survey allowed respondents to name multiple primary reasons
for firearms ownership and found that 40% named hunting, 34% collecting, and 28% sporting use (Azrael, Hepburn,
Hemenway, & Miller, 2016). Unfortunately, only a handful of scholars have considered gun culture as a form of recreation
akin to other “collective passionate avocations” (Gillespie, Leffler, & Lerner, 2002, p. 286) like swing dancing, adult league
tennis, and birding. There is, however, good reason to see a large part of gun culture as “serious leisure” (Stebbins, 2001).
The concept of “serious leisure” was pioneered by Stebbins (2001), who initially distinguished between casual
leisure and serious leisure. Casual leisure involves mundane activities that require little specialized training, while
serious leisure is complex and specialized and requires a greater level of commitment and training (Anderson & Taylor,
2010, p. 36). Unlike casual pursuits such as watching TV, activities involving guns tend toward serious leisure because
of the cost and the dangers of firearms, as well as the amount of time and effort necessary to master their use.
As with other serious leisure pursuits, gun culture grew over the course of the 20th century. The previously noted
transformation of hunting from a necessity of survival to a sporting pastime was amplified with the broader rise in
leisure activities in the 20th century, as work days and hours shrank and income (and consumer credit) grew. Although
many still hunt in order to harvest game meat, not many people in the U.S. hunt for subsistence (Grandy, Stallman, &
Macdonald, 2003). Kellert (1988) argues that over the course of the 20th century a “utilitarian” attitude toward hunt-
ing has declined. An increasing proportion of hunters can be characterized as “sport hunters”—those who enjoy being
outdoors with others and displaying their skills—and “nature hunters”—those who hunt to participate in nature for
“inner‐directed, virtually mystical, reasons” (Wright et al., 1983, p. 59).
Although the proportion of the U.S. population that hunts has declined, millions of Americans still hunt and in
some locations hunting is sufficiently normative that public schools close on the opening day of hunting season.
Unfortunately, sociologists have not seriously studied recreational motivations for hunting, perhaps because, like
much of the non‐hunting population, they do not approve of hunting for non‐utilitarian, sporting reasons
(Grandy et al., 2003). It would be an enormous benefit to our understanding of gun culture for someone to
ethnographically study animal hunters in the way Fine (1998) studied the culture of mushroom hunters.
Slightly more research has been conducted on sport shooting and collecting as part of recreational gun culture.
Kohn (2004) uses the phrase “gun enthusiasm” to characterize the orientation of the sport shooters she studied
ethnographically in the San Francisco Bay Area. Kohn (2004, p. 9) argues, “At its most basic, gun enthusiasm is an
enjoyment of and enthusiasm for firearms. Gun enthusiasts, like enthusiasts of any kind, take pleasure in the handling
and use of the object of their pleasure.” In other words, they approach shooting as a form of serious leisure. One
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shooter interviewed by Stenross (1990, p. 59) explained his enjoyment of shooting by comparing it to another popular
but less stigmatized recreational pursuit, golfing. “It's my day off, people might ask if I play golf. Well, I don't play golf, I
shoot. ‘Shoot what?’ That upsets their world. Shoot what! Most people don't understand that it can be a sport.” In fact,
the shotgun sport known as “sporting clays” is often called “golf with a shotgun.” In sporting clays, the participant
moves from station to station and shoots at clay targets that are thrown from different locations and in different
directions, much like a golfer moves from hole to hole, each of which is different.
Treating target shooting like any other legitimate leisure pursuit, a recent online survey utilized a 35‐item Leisure
Motivation Scale (LMS) and a 34‐item Leisure Satisfaction Scale (LSS) to understand what gets and keeps target shooters
involved in the activity. In terms of motivations, the highest rated reasons were “because it is fun” (mean of 4.83 out of 5),
“to improve my marksmanship” (4.78), and “to challenge my abilities” (4.50). Factor analysis of the responses to the LMS
identified six underlying components: escapism (34% of explained variance), social interaction (9.6%), self‐actualization
(7.9%), physical activity (6.2%), efficacy/skill (5.2%), and family history (3.9%) (Martin, Murray, O'Neill, MacCarthy, &
Gogue, 2014, pp. 212‐13).1 Escapism included such items as “to relax” and “to relieve stress and tension,” characteriza-
tions of shooting guns that could be very foreign to those outside gun culture. In terms of the satisfaction target shooters
derive from their activity, “it is fun” (mean of 4.83 out of 5) and “I like it” (4.66) are the two most widely embraced
responses. Factor analysis of the LSS survey responses identified eight components: self‐actualization (37.3% of explained
variance), social interaction (7.2%), respite (5.7%), physical benefit (5.2%), connection (4.5%), technical (4.1%), and hedonic
pleasure (3.8%) (Murray, Martin, O'Neill, & Jason Gouge, 2015, pp. 9–10). These quantitative data reinforce Kohn's (2004)
and others' qualitative data on the pleasure and enjoyment people get from their participation in this aspect of gun culture.
In addition to shooting, gun collecting is also understood as a form of serious leisure. Of the 14 gun collectors,
Stenross (1990, p. 60) interviewed, most owned at least 30 guns, and four owned 100 or more. While target shooters
and hunters see guns as useful for particular purposes, and anti‐gun people sees them as implements of death, gun
collectors see guns as “aesthetic objects” to be understood and appreciated like other collectables (Stenross, 1994,
p. 30). The pleasure of collecting firearms comes from an appreciation of their beauty, the craftsmanship that goes into
making them, and their connection to history (Stenross, 1990, p. 61; Anderson & Taylor, 2010, p. 44). Indeed, like
those who collect stamps or other material objects, gun collectors often see themselves as “curators” of history,
helping to preserve valuable objects for the future (Stenross, 1994, p. 31).
Unlike some others who engage in serious leisure, however, the objects of shooters' and collectors' enthusiasms
are frequently associated with emotional and physical pain. They therefore have to negotiate the stigma associated
with guns—a stigma which is not applied to coins or stamps (Stenross, 1990, p. 62). This reminds us that categorizing
something as a form of leisure does not mean it is normative. Recreational drug use, shooting pool, and sexual
“swinging” have historically been seen as “disreputable pleasures” or “morally controversial leisure” (Olmsted, 1988,
p. 277). Gun collecting, target shooting, and hunting have all been viewed through this lens.
Gun avocationists find themselves having to give “dignifying accounts” of their use of guns to justify owning and
using them (Stenross, 1990; Taylor, 2009). Hunters, for example, highlight the ethics of killing an animal appropriately
(“quickly and cleanly”) and of harvesting the meat, horns, and hide rather than allowing them to go to waste. Here,
they draw a strong contrast to their cosmopolitan critics who are morally compromised because they are more distant
from the sources of their food (Tonso, 1982). Target shooters emphasize the calmness, discipline, and self‐control
required and cultivated by shooting (Stenross, 1990, p. 59). Taylor (2009) highlights how gun collectors must use
impression management techniques to negotiate the stigma of engaging in a leisure pursuit involving “morally contro-
versial products” (Olmsted, 1988, p. 278). Those who own cars and drink alcohol are rarely blamed for drunk driving
generally, but gun owners are sometimes made to feel partially responsible for the very existence of gun violence. So
gun enthusiasts have to rationalize their avocations so as to distance themselves: “I know that guns are used as
weapons to kill people every day. Those aren't my guns. The world is safe from my collection. I own over 100 guns”
(Anderson & Taylor, 2010, p. 49). Those attracted to these avocations are often called “gun nuts.” Some gun collectors
coopt the “nutty” characterization of those so obsessed with firearms and characterize themselves as such, but in the
sense of being quirky—like a professor or stamp collector can be nutty (Stenross, 1990, p. 61).
YAMANE 5 of 10
Hunting, target shooting, and collecting continue to be important aspects of U.S. gun culture today and merit
further investigation by sociologists. At the same time, the center of gravity of U.S. gun culture has shifted over the
course of the past half‐century from recreational shooting to armed self‐defense, from “Gun Culture 1.0,” America's
historic gun culture that Hofstadter described, to “Gun Culture 2.0.”2
4 | T HE R I SE OF G UN CUL T UR E 2 .0
Gun Culture 2.0 is centered on armed self‐defense, or what I call the culture of armed citizenship. The concept of
armed citizenship recognizes the large and growing number of people in the United States who are exercising their
rights as citizens to carry firearms in public for self‐defense. Although, as we have seen, the motivations for gun
ownership are complex, the majority of gun owners today—especially new gun owners—point to self‐defense as
the primary reason for owning a gun. In a 1999 ABC News/Washington Post poll, 26 percent of respondents cited
protection as being the primary reason for owning a gun; by 2013, that proportion had grown to 48 percent (Pew
Research Center, 2013). Hunting, target/sport shooting, and gun collecting together declined by a roughly equal
amount. More recently, the 2015 National Firearms Survey found 63% of respondents indicated “protection against
people” to be a primary reason for owning a firearm (Azrael et al., 2016). Significantly, a 2013 Washington Post/ABC
News poll found more Americans saying that having a gun in the house makes it a safer place to be (51%) than a more
dangerous place to be (29%) (Clement & Craighill, 2013). This view extends outside the home, as well. A 2015 Gallup
Poll found a majority of Americans (56%)—including 50% of women and 48% of non‐gun owners—believe that if more
Americans carried concealed weapons, the country would be safer (Newport, 2015). These statistics are reflective of
the changing legal structure governing the carrying and use of firearms for self‐defense. The dramatic liberalization of
gun laws over the past four decades reflects and facilitates the development of Gun Culture 2.0.
In the early republic, no special licensing was required to bear arms, either openly or concealed. But beginning
with Kentucky in 1813, there was a movement in several southern states to ban the carrying of concealed weapons
in public (Cramer, 1999). In time, these prohibitions spread from the south to the rest of the United States. This
“restricted era” of gun carry continued through the 1970s, but over the last four decades, there has been dramatic
shift toward the liberalization of concealed carry laws (Patrick, 2009). The dominant movement in concealed carry
legislation has been toward state passage of what have come to be known as “shall issue” laws (Grossman &
Lee, 2008). From 1980 to 2013, 38 states passed these laws that require state or local authorities to issue a permit
to any applicant that meets the objective statutory criteria if no statutory reasons for denial exist. The issuing
authority's discretion over subjective criteria like the “good moral character” or “good cause” of the applicant is
removed from the process. Two hundred years after Kentucky banned the carrying of concealed weapons in public,
state or local governments in all 50 states must have (according to court decisions) some provision in place for issuing
permits to citizens allowing them to carry concealed firearms in public, though nine states maintain more restrictive
“may issue” laws under which the issuing authority is not required to issue a concealed carry license but may issue
one at its discretion.
As concealed carry laws have been liberalized, the number of concealed carry permit holders have grown consid-
erably. The Government Accountability Office estimated that there were at least 8 million active permits to carry
concealed handguns in the United States at the end of 2011 (GAO, 2012). This amounts to at least 3.5 percent of
the eligible U.S. population (adults who are legally allowed to possess guns). The portion of individual state popula-
tions with a concealed carry permit varies but shall issue states like Georgia (600,000 permits, 11.5%), Iowa
(243,000 permits, 10.9%), and South Dakota (62,000 permits, 10.6%) have the highest rates in the country. It would
surely surprise many to know that one out of every 10 adult citizens in these states is potentially legally armed in
public, not to mention 3 to 4 out of every 100 Americans overall.
This lawful carrying of firearms for legal purposes has received very little attention from sociologists, who have
largely ceded the topic to criminologists. Criminologists have examined aggregate levels of legal gun carrying using
6 of 10 YAMANE
data on the number of concealed carry permits issued in different jurisdictions. These studies tend to find that the
political orientation of a locality matters (more Republican, more permits), as do shifts in racial composition (more
racial minorities move in, more permits), and population density (more suburban, more permits) (Costanza & Kilburn,
2004; Thompson & Stidham, 2010). Although these studies are suggestive, the names of individual permit holders are
not generally matters of public record, leaving scholars to analyze aggregated administrative data on permits. Estab-
lishing causality is difficult and the ecological fallacy looms large.
A more common approach has been to use statistical analysis of survey data to understand the individual decision
to carry a firearm. As in studies of gun ownership more generally, these studies often identify demographic correlates
of gun carrying such as age, gender, and region of residence (Bankston, Thompson, Jenkins, & Forsyth, 1990). More
sophisticated studies try to capture additional subjective or situational factors, emphasizing fear of crime and history
of criminal victimization, as well individual beliefs in self‐protection, as principle motivators (Kleck & Gertz, 1998).
While helpful, the strong emphasis on individual decision‐making without understanding the broader cultural context
within which that decision makes sense is a limitation of these studies.
Fortunately, two recent studies by sociologists have taken a more qualitative approach to studying concealed
carry permit holders. In Citizen Protectors: The Everyday Politics of Guns in an Age of Decline, Carlson (2015) examines
the decision to carry a gun in public in a wider context. Carlson's study of gun carrying (both legally open and
concealed) in the Detroit, Michigan metro area is based on 60 interviews with male gun carriers and observations
of firearms training, shooting ranges, activist events, and Internet gun forums. She understands the decision to carry
a gun as a response to a very broad pattern of socio‐economic decline, the feelings of economic and physical insecu-
rity it produces, and related concerns about crime and police ineffectiveness. Carlson sees gun carrying for men as
being strongly connected to their cultural conceptions of masculinity. The socio‐economic “age of decline” Carlson
identifies has affected men in particular and their role as breadwinners, so male gun carriers reassert their relevance
as men by identifying themselves as “citizen‐protectors” (her term, not theirs). Emphasizing the connection between
the cultural ideal of personal responsibility and a broader conception of citizenship—what Kohn (2004) calls the
“citizen soldier”—gun carriers as citizen‐protectors are morally upstanding citizens exercising their historically
masculine duty to protect their families and others.
Stroud's (2016) Good Guys with Guns: The Appeal and Consequences of Concealed Carry follows closely on the heels
of Carlson's study. It is based on open‐ended interviews with 36 concealed handgun license holders in Texas as well as
observation of Texas concealed handgun license (CHL) courses and gun ranges. Rather than focusing on situational
factors like fear of crime in one's immediate environment or a past history of criminal victimization, Stroud looks at
the broader cultural meanings of concealed carry for Texas CHL holders. Her male respondents drew on ideal images
of masculinity in emphasizing the need to protect their families and to compensate for lost strength due to age as
motivations for concealed carry. Stroud's female respondents, by contrast, emphasized a need to protect themselves
(rather than their families) and felt empowered to do so because guns are “equalizers” that compensate for strength
differences between women and their male victimizers. What both male and female CHL holders have in common,
Stroud concludes, is their embrace of a cultural ideal of personal responsibility.
Carlson and Stroud can be profitably read together for their similarities and differences. Both seek to understand
why average citizens in the United States today feel the need to carry a firearm in public. Both find answers not
primarily in the practical utility of guns as tools of self‐defense but in the symbolic value of guns to individuals in
particular social circumstances. For Carlson, gun carrying says “I deserve to be treated with dignity as a law‐abiding
citizen.” For Stroud, it says “I am a good guy.” Carlson situates gun carrying in the context of social insecurities created
by postindustrial economic decline and neoliberal policy ascendance. Stroud sees it primarily through the lens of
gender, racial, and class inequality, though implicates neoliberalism in her conclusion. Significantly, both argue that
white male gun carriers in the suburbs are motivated by emasculation (due to economic marginalization for Carlson
and physical decline for Stroud), as well as race‐based fears of crime.
Carlson and Stroud provide an excellent starting point for sociologists studying Gun Culture 2.0, the non‐criminal
culture of armed citizenship at the core of U.S. gun culture today. But as with recreational gun culture, much more can
YAMANE 7 of 10
be done to understand this important and emergent social phenomenon. In the final section, I consider some future
directions for the sociology of U.S. gun culture.
5 | FUTURE DIRECTIONS
Compared to the criminology and epidemiology of gun violence, the sociology of U.S. gun culture has lagged consid-
erably behind. Decades ago, Stenross (1990, p. 56) observed that those who only associate guns with violence and
crime cannot understand why people use guns “for fun,” sociologists included. There is no doubt that ignorance of
and bias against guns is common in the discipline. Kohn (2004, p. ix) discusses the considerable hostility she
encountered from academic colleagues when she was researching guns in the 1990s. Although less hostile, when I tell
colleagues today that I am studying “gun culture,” they routinely hear me saying “gun violence” or “gun control.” As
gun culture remains a significant social reality, sociologists would do well to pay more attention to it. I conclude,
therefore, with three suggested directions for future research.
5.1 | Focus on Social Practices

Gun culture is part of the broader American culture, so obviously reflects some of its dominant themes (Kohn, 2004).
This is as true of Gun Culture 2.0 as it was of Gun Culture 1.0. Carlson (2015), Stroud (2016), and Melzer (2009) have
shown this, particularly the way that gender ideology shapes gun ownership and use. But understanding gun culture
only as reflecting broader ideas and ideals—about gender, race, freedom, rugged individualism—is too limited. We also
need to understand gun culture on its own terms, especially the practices that constitute it. Being a part of gun culture
is not simply about holding a particular set of beliefs but involves participation in a particular social world (Shapira,
2013). Kohn (2004) approaches gun culture this way, but more solidly ethnographic work like hers is necessary.
The social world of gun culture is shaped by broader social institutions including the legal system, economy, and
technology, and these requires greater attention as well. For example, the widespread practice of legally carrying a gun
in public was facilitated by the movement for shall issue concealed carry laws. The growing practice of concealed carry
that is facilitated by these laws also creates a number of new challenges for the individuals who do so, as well as for
the broader social worlds (other people, spaces, and places) in which they do so. These challenges are individually and
collectively addressed through the developing culture of armed citizenship—both the “hardware” of material culture
like guns, accessories, and other products, as well as the “software” of ways of thinking, legal frameworks, and the
development of relevant abilities.
5.2 | Focus on Wider Social Worlds

Related to the focus on social practices is greater attention to the wider social worlds in which gun owners participate.
According to Stebbins (2001, p. 54), “Serious leisure participants typically become members of a vast social world, a
complex mosaic of groups, events, networks, organizations, and social relationships.” The same is true for participants
in both recreational and self‐defense gun culture. America is not just a “Gun Show Nation” (Burbick, 2007), it is a
nation of gun clubs, training classes, shooting events, network meet‐ups, and gun collectors and shooters associations.
Although Taylor (2009) and Kohn (2004) have captured small slices of this reality on the recreational side, and Carlson
(2015) on the self‐defense side, this aspect of gun culture has not been adequately studied to date.
5.3 | Focus on Marginalized Populations

Although the predominance of socially privileged (white, heterosexual, and middle class) men among gun owners
suggests the importance of masculinity in studying gun culture, sometimes this focus has come at the exclusion of
gun owners who come from marginalized populations. Two decades ago, McCaughey (1997) studied women's armed
8 of 10 YAMANE
self‐defense classes as part of her pioneering study of “physical feminism.” Despite the expansion of such classes and
of women's gun ownership more generally—part of the rise of Gun Culture 2.0—no one has yet followed McCaughey's
lead. Similarly, the Pink Pistols, an LGBTQ organization founded in response to hate crimes, remains unstudied. And
we know very little about legal concealed carry by those who are most likely to be victims of criminal gun violence,
African Americans living in urban areas.
In promoting the sociological study of U.S. gun culture, I do not mean to suggest that criminological, epidemiolog-
ical, or public health approaches to the study of guns are unimportant. Rather, because the vast majority of guns will
never be used to commit crimes and the vast majority of gun owners will never commit or be victims of gun violence,
they simply offer a partial perspective. To the extent that efforts to mitigate the harmful effects of guns require a
collective response—including (perhaps especially) law‐abiding gun owners—understanding U.S. gun culture in its
various dimensions is an important step forward.
ENDNOTES
1
It is important to recognize that those characteristics that are most universally embraced also explain the least amount of
variance in scale scores because they do not themselves vary. This is true of both the “skill” component in the LMS scale
and the “hedonic pleasure” component in the LSS scale.
2
Terms I borrow from gun journalist Michael Bane.
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Thompson, J. A., & Stidham, R. (2010). Packing heat in the tar heel state: A county‐level assessment of concealed carry
permits. Criminal Justice Review, 35(1), 52–66.
Tonso, W. R. (1982). Gun and society: The social and existential roots of American attachment to firearms. Washington, DC:
University Press of America.
Winkler, A. (2011). Gunfight: The battle over the right to bear arms in America. New York: Norton.
Wright, J. D. (1995). Ten essential observations on guns in America. Society, 32(3), 63–68.
Wright, J. D., Rossi, P. H., & Daly, K. (1983). Under the gun: Weapons, crime, and violence in America. New Brunswick, NJ: Aldine
Transaction.
10 of 10 YAMANE
David Yamane is Professor of Sociology at Wake Forest University. He is author or editor of seven books, mostly
in the sociology of religion. In a recent departure from his previous work, Yamane has begun studying guns, par-
ticularly the rise of Gun Culture 2.0—the emerging culture of armed citizenship in the United States. He blogs at
GunCulture2point0.com.
How to cite this article: Yamane D. The sociology of U.S. gun culture. Sociology Compass. 2017;11:e12497.
https://doi.org/10.1111/soc4.12497
Section Four
Updates on FBI NICS Checks and Appeals
Derek DeBrosse
A Primer: Gun Rights and the Veterans Administration
Eliot Peace
N.I.C.S.
• The National Criminal Instant Background Check
System
– NICS is located at the FBI’s Criminal Justice Information
Services Division, Clarksburg, WV – unless a state elects to
use a Point of Contact (POC)
– A national system that checks available records on persons
who may be disqualified from receiving firearms.
– Developed through a cooperative effort of FBI, ATF, state
and local agencies
Purpose
• NICs is a way for Federal Firearms Licensees
(“FFLs”) to determine whether a firearms
buyer is not eligible to purchase a firearm.
• NICs was mandated by the Brady Law, and is
administered by the FBI (beginning in 1998).
History of NICS
• Prompted by the attempted assassination of President Reagan the BRADY Act was
enacted forming NICS.
• November 30, 1993 Brady Handgun Violence Protection Act is enacted – Public
Law 103-159
– Named after James Brady, WH Press Secretary to Ronald Reagan who was seriously wounded
– Amended the gun control act of 1968
– Interim Period of 5 day waiting period for handguns
• Transfers to unlicensed individuals
• Only applied to states without an acceptable alternate system of conducting background checks on
handgun purchasers
• Effective 2/28/94 – 11/30/98
• NICS officially launched November 30, 1998
– Permanent provisions apply to ALL firearms
• Letters to all FFLs were issued on or about October 1998; Can be found at atf.gov/rules-and-
regulations/brady-letters-ffls
History of NICS
• Since 1968, it was unlawful for licensees to sell firearms to persons who
• (1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding o ne year;
• (2) is a fugitive from justice;
• (3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Ac t (21 U.S.C. 802));
• (4) has been adjudicated as a mental defective or has been committed to any mental institution;
• (5) who, being an alien—
• (A) is illegally or unlawfully in the United States; or
• (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term i s defined in section
101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
• (6) who has been discharged from the Armed Forces under dishonorable conditions;
• (7) who, having been a citizen of the United States, has renounced his citizenship;
• Despite the existence of these "prohibited" categories, prior to enactment of the Brady Bill in February 1994, there was only one Federal
requirement aimed at preventing persons who fit in these categories from purchasing a firearm: the buyer had to complete the ATF Form 4473.
Prior to February of 1994, buyers certified their name and residence, and stated that they did not fall within a “prohibiting ” category. In States that
did not have an instant background check system, permit procedure or waiting period for firearms purchases, the licensee exam ined this form and
made a determination as to whether the buyer had filled it out correctly. If so, the licensee then made an over -the-counter transfer of the handgun
or other firearm.
History of NICS
• In 1996, additional categories of “prohibited persons” were added
to the GCA:
• (8) Anyone that is subject to a qualifying domestic protective order
(via 1994 “Violence Against Women Act” ("VAWA") and Domestic
Violence Offender Gun Ban, Title 18, United States Code, Section
922(g)(8) - “Lautenberg Amendment.”)
• (9) Anyone who has been convicted of a “misdemeanor crime of
domestic violence” (added in 1996 by the Domestic Violence
Offender Gun Ban, Title 18, United States Code, Section 922(g)(9) -
“Lautenberg Amendment.”)
NICS by the numbers
• Since the effective date of the Brady Act on February 28, 1994, through December 31, 2015, nearly 197 million
applications for firearm transfers or permits were subject to background checks and more than 3 million
applications (1.5%) were denied.
• 1999 - Of the approximately 8.6 million applications to transfer firearms in 1999, about 204,000 (2.4 percent )
were rejected. The rejection rate among state or local POCs was 3.0 percent; at the federal level it was 1.8
percent. State POCs have access to more detailed criminal history records than the FBI, and more than two -thirds
of the U.S. population are in the 26 states that do their own background checks for handguns .
• 2007- 1.6% of the 8.7 million applications for firearm transfers or permits were denied by the FBI (66,817) or by
state and local agencies (69,000). In 2007, the denial rate for applications checked by the FBI (1.3%) was lower
than the rate for checks by state and local agencies (2.0%). Among all state agencies, denial rates ranged from over
4% to less than 1%.
• 2015 - Nearly 17 million applications for firearm transfers were received in 2015, up from an estimated 15 million
in 2014. About 1.4% of the nearly 17 million applications for firearm transfers or permits in 2015 were denied:
about 107,000 by the FBI and about 119,000 by state and local agencies.
Who Administers NICS
• NICs is administered by the FBI in 30 states.
• In the other 20 states, FFLs initiate NICS checks through the state
point of contact (“POC”), which serves as an intermediary between
an FFL and the federal databases checked via NICs.
• For states with POCs, some conduct background checks for all
firearms transactions (“Full POC States”) while some require FFLs to
contact the state POC for handgun transactions and the FBI for long
gun transactions (“Partial POC States”). And, in some states with
POCs, all pawn redemptions are run through the FBI.
Mechanics
• A potential buyer completes Section A of ATF Form 4473.
• The FFL initiates a NICs check by phone or computer (via FBI NICs E-Check at
www.nicsezcheckfbi.gov), entering in certain identifying information from the
4473.
• The identifying information is run against three databases:
• National Crime Information Center (“NCIC”) – Contains data regarding protection
orders, active warrants, and immigration violations.
• Interstate Identification Index (“III”) – Contains criminal history records.
• NICs Index – NICs-specific database that collects information from various federal,
state, local and tribal agencies related to prohibited persons.
• The databases generally contain information regarding conditions that would
render a firearms buyer a “prohibited person” under the Federal Gun Control Act.
Certain federal, state, and local agencies provide the information in NICs.
Mechanics Continued
• Generally, within minutes, NICs responds with a “proceed”, a “deny”, or a “delayed”.
– If NICs states “proceed”, the transfer can take place.

– If NICs states “deny”, it cannot.
– If NICs states “delayed”, the transfer cannot proceed for three business days (not counting the date of the
NICs check), unless NICs subsequently states “proceed”. If three business days pass, and NICs has not stated
“deny”, then the firearm may be transferred. However, sometimes NICs will state “denied” after the third
business day, in which case the FFL must notify NICs.
• A NICs response is valid or 30 days (beginning on the day after the NICs check is initiated). So, if a
buyer completes Section A of the 4473 and a NICs check is run on July 1, 2019, the buyer leaves
before the response comes back, and NICs states “proceed”, the FFL can transfer the firearm to the
buyer using the NICs check until July 31, 2019. After than, the FFL must run a new NICs check.
• States can have more stringent background check laws. For example, waiting periods. An FFL must
follow state law waiting periods.
Mechanics Continued
• Example: State X is acting as a point of contact for NICS checks. State law requires the licensee to wait 10 days,
rather than 3 days, for a response to the background check prior to transferring a firearm. Because State law
provides a 10 day period before a licensee may transfer a firearm, the licensee may not transfer the firearm until
10 days have elapsed since conducting the background check.
• Example: State X is acting as a point of contact for NICS checks. State law allows a licensee to transfer a firearm 24
hours after conducting a NICS check and receiving a “delayed” response. Although State law would permit a
licensee to transfer a firearm 24 hours after receiving a “delayed” response, the licensee must comply with Federal
law which requires the licensee wait 3 business days prior to transferring a firearm where the licensee has not
received notice the transfer would be prohibited.
• Example: The law of State X provides for a 5 day waiting period before a handgun may be transferred by a
licensee. An individual completes an ATF Form 4473 for the purchase of a handgun, a NICS check is conducted,
and a “proceed” response is given by NICS. Although the licensee received a “proceed” response, the licensee
must comply with the State waiting period, and the licensee may not transfer the firearm until the State 5 day
waiting period has elapsed.
• (Source: https://www.atf.gov/firearms/qa/does-licensee-who-conducts-nics-check-have-comply-state-waiting-
periods-transferring).
When NICS is not required
• Where the transferee presents a valid state permit/license from the Licensee’s state AND the state permit or
license is recognized by ATF as a qualifying alternative to the background check requirement. ATF is continually
adding and removing states to this approved list. So, Licensee should periodically review the ATF website
(www.atf.gov) to determine the status of these permits/licenses. Out of state permits/licenses do not meet this
exemption, even if the other state document is recognized by ATF or the states have established reciprocity.
However, Licensee will always run a NICS check on permit holders. The reason is that many states do not void the
permit/license when a transferee becomes prohibited, and an employee may mistakenly accept a non -valid
permit/license.
– FFL Clients should be wary of risks involved
• For the return of a repaired firearm to the person from whom it was received. Although a Form 4473 and NICS
check are not required in this instance, the Licensee will check the DENIED and DELAY files to determine if the
person is prohibited. If the person was DENIED, the Licensee will not return the firearm to the individual. If
DELAYED on a pending transfer, the Licensee will await a PROCEED before returning the firearm.
• For the Sale of a firearm to a LE agency or a LE officer for official duties, if the transaction meets the specific
requirements of 27 CFR § 478.134,
When NICS is not required
• For the transfer of a replacement firearm of the same kind and type to the person
from whom a firearm was received. However, the Licensee will check the DENIED
and DELAYED files to determine if the person is prohibited. If the person was
DENIED, the Licensee will not transfer the firearm to him. If DELAYED on a pending
transfer, the Licensee will await a PROCEED before transferring the firearm.
• The transfer of a firearm that is subject to the National Firearms Act (“NFA”), if the
transfer was pre-approved in writing by ATF on a Form 4. If this transfer is
combined with sale of any other firearm on a single Form 4473, a NICS check is
required, and Licensee will conduct one. It is important to note that NFA firearms,
unlike Gun Control Act (“GCA”) firearms, can be transferred to a “Trust”. In these
instances, the persons approved to receive the firearm for the trust will be named
in the trust document that ATF approved, and attached to the Form 4.
Security
• October of 1998 Attorney General published
regulations on privacy and security of NICS
information
• Not to be used to establish a firearm registry
• Per Title 28, Code of Federal Regulations, Part
25.9(b)(1), (2), and (3), the NICS Section must destroy
all identifying information on allowed transactions
prior to the start of the next NICS operational day.
2007 NIAA
• NICS Improvements Amendments Act of 2007 (NIAA) – Public Law 110-180 (Signed into law January
8, 2008)
– “To improve the National Instant Criminal Background Check System, and for other purposes”
– Prompted primarily by the Virginia Tech Shooting
• Despite mental illness was able to successfully pass NICS
• Under the Gun Control Act of 1968, it was illegal for Cho to purchase the firearms; however, the Commonwealth of
Virginia had not submitted his disqualifying mental health adjudication to NICS. At least as of the time of enactment of
the NIAA, different states had different standards for record-keeping and reporting and, typically, mental health and
substance abuse records were not reported.
• The NIAA seeks to address the gap in information available to NICS about such prohibiting mental health adjudications
and commitments and other prohibiting backgrounds. Filling these information gaps will better enable the system to
operate as intended to keep guns out of the hands of persons prohibited by federal or state law from receiving or
possessing firearms
• Under the NIAA, Congress authorized federal grants to states to assist them in determining which individuals are eligible
to purchase and possess firearms and to aid them in supplying accurate information to federal databases.
2007 NIAA
• Section 102(a) of the NIAA imposes, as a first condition on a first source of federal grants, a condition that states
must provide to the Attorney General a “reasonable estimate, as calculated by a method determined by the
Attorney General” of state’s records subject to the Act’s completeness requirements.
• Section 105(a)(1) of the NIAA imposes, as a first condition on a second source of federal grants, a requirement for
states to certify to the Attorney General that the state had implemented a “relief-from-disabilities program” under
which an individual who, pursuant to state law, had been adjudicated mentally defective or had been “committed
to a mental institution” could apply “for relief from the disabilities imposed” by 18 U.S.C. § 922(g)(4).
• Further, similar to the federal relief-from-disabilities program, Section 105(a)(2) of the NIAA imposes, as a second
condition on the second source of federal grants, a requirement that states “shall grant the relief” if “the
circumstances regarding the disabilities . . . and the person’s record and reputation, are such that the person will
not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be
contrary to the public interest.”
• Still further, Section 105(a)(3) of the NIAA imposes, as a third condition on the second source of federal grants, a
requirement the state programs must permit an individual “whose application for the relief is denied to file a
petition with the State court of appropriate jurisdiction for a de novo judicial review of the denial.”
• Roughly half the states have created grant-eligible relief-from-disabilities programs.
2007 NIAA - STATES
• FOR STATES: The NIAA has provisions that encourage states to meet
specified goals for completeness of the records submitted to the
Attorney General on individuals prohibited by federal law from
possessing firearms. The records covered include automated
information needed by the NICS to identify felony convictions,
felony indictments, fugitives from justice, drug arrests and
convictions, federally prohibiting mental health adjudications and
commitments, domestic violence protection orders, and
misdemeanor crimes of domestic violence. The Act provides for a
number of incentives for states to meet the goals it sets for greater
record completeness
2007 NIAA - STATES
• First, the Act allows states to obtain a waiver, beginning in 2011, of the National Criminal
History Improvement Program's (NCHIP) state matching requirement for NCHIP grants, if
a state provides at least 90 percent of its records identifying the specified prohibited
persons.
• Second, the Act authorizes a separate grant program to be administered consistent with
NCHIP, for state executive and judicial agencies to establish and upgrade information
automation and identification technologies for timely submission of final criminal record
dispositions and other information relevant to NICS checks. Up to 5% of the grants may
be reserved for Indian tribal governments and judicial systems.
• Finally, the Act provides for discretionary and mandatory Byrne grant penalties for non -
compliance with record completeness requirements: During the 2-year period beginning
3 years after the date of enactment of the Act, up to 3% may be withheld in the case of
less than 50% completeness; during the 5-year period beginning 5 years after the date of
enactment of the Act, up to 4% may be withheld in the case of less than 70%
completeness; thereafter, 5% must be withheld in the case of less than 90%
completeness (although the mandatory reduction can be waived if there is substantial
evidence of the state making a reasonable effort to comply)
2007 NIAA - FEDERAL
• IN THE FEDERAL SYSTEM: The NIAA creates an independent
statutory obligation for federal agencies to report records
identifying prohibited persons to the Attorney General no less than
quarterly. It also requires federal agencies that issue prohibiting
mental health adjudications or commitments establish a program
under which a person subject to such an adjudication or
commitment can apply for relief from his or her firearms disability
according to standards under 18 U.S.C. § 925(c). Additionally, the
Act provides that a prohibiting adjudication or commitment issued
by a federal agency or department may be nullified in certain
instances by a qualified set aside, expungement, release from
mandatory treatment, or other specified means.
2007 NIAA – MENTAL HEALTH
• CHANGE TO THE MENTAL HEALTH PROHIBITOR: Prior to the NIAA,
section 922(g)(4) was effectively a lifetime prohibition on
possessing firearms by any person "who had been adjudicated a
mental defective or who has been committed to a mental
institution." The Act, however, provides that when relief is granted
under a federal or state relief from disabilities program that meets
the requirements of the Act, or when certain automatic relief
conditions are met with respect to persons federally adjudicated
or committed, the event giving rise to the mental health disability
is "deemed not to have occurred" for purposes of the federal
firearm prohibition.
2007 NIAA – MENTAL HEALTH
• Before the enactment of the NICS Improvement Act, a person’s adjudication as a
mental defective or commitment to a mental institution was effectively a lifetime
prohibition. The NIAA incorporates provisions to address concerns about the
permanence of, and effect of, this prohibition, as well as to promote the sharing of
this information for use in NICS. As of December 2017, 31 states had certified relief
programs in place that were approved by the ATF.
• The NICS does not maintain a database of medical records or information on
mental health diagnoses or treatment plans. When a record of a person prohibited
from possessing a firearm as a result of mental health issues (i.e., a person who
has been involuntarily committed to a mental institution or adjudicated a "mental
defective" by a court, board, or other lawful authority) is entered in the NICS
Indices, the entry contains only a name, other biographic identifiers (e.g., date of
birth), and codes for the submitting entity and prohibited category. The NICS
Indices does not contain medical records or medical information.
Fix NICS Act of 2018
• U.S. Senator John Cornyn (R-TX) and others introduced the Fix NICS
Act, responsive to the mass shooting at the First Baptist Church in
Sutherland Springs, Texas, to ensure federal and state authorities
complied with existing law and accurately reported relevant
criminal history records to the National Instant Criminal Background
Check System (NICS).
• It was learned that the perpetrator Kelley was prohibited by law
from purchasing or possessing firearms and ammunition due to a
domestic violence conviction in a court-martial while in the United
States Air Force (USAF). The USAF failed to record the conviction in
the FBI National Crime Information Center database, which is used
by NICS to flag prohibited purchases.
• Just as the NIAA encouraged and incentivized states to
report of relevant records, the Fix NICS bill also
incentivizes states to improve their overall reporting.
The Fix NICS goes further and penalizes federal
agencies who fail to properly report relevant records.
• Fix NICS was enacted into law on March 23, 2018, as
part of the Consolidated Appropriations Act, 2018
signed as Pub.L.115-141.
• Section 602(F) of Fix NICS, “Accountability for Federal Departments and
agencies,” amends Section 103 of the Brady Act (34 U.S.C. 40901) to
require semiannual certification and reporting by the head of each Federal
Department or agency indicating whether the department or agency is in
compliance with the record submission requirements.
• Section 602(G) requires Implementation Plans to be developed no later

than 1 year after the date of enactment (i.e., March 23, 2019), with the
head of each Federal department or agency coordinating with the
Attorney General to establish a plan to ensure “maximum coordination”
and “automated reporting or making available of records to the Attorney
General, as required, and the verification of the accuracy of those records
during a 4-year period specified in the plan.
• Section 602(G) further imposes Benchmark requirements with annual benchmarks to enable the
Attorney General to assess implementation of the plan, including (I) qualitative goals and
quantitative measures; (II) measures to monitor internal compliance, including any reporting
failures and inaccuracies; (III) a needs assessment, including estimated compliance costs; and (IV)
an estimated date by which the Federal department or agency will fully comply with record
submission requirements.
• Section 602(H), “Accountability” requires the Attorney General to prepare and publish a
semiannual report that discloses (i) the name of each Federal department or agency that has failed
to submit a required certification under Section 602(F); (ii) the name of each Federal department or
agency that has submitted a required certification, but failed to certify compliance with the record
submission requirements; (iii) the name of each Federal department or agency that has failed to
submit an implementation plan; (iv) the name of each Federal department or agency that is not in
substantial compliance with an implementation plan; (v) a detailed summary of the data, broken
down by department or agency, contained in the certifications submitted; (vi) a detailed summary
of the contents and status, broken down by department or agency, of the established
implementation plans; and (vii) the reasons for which the Attorney General has determined that a
Federal department or agency is not in substantial compliance with an implementation plan.
• Section 602(H), “Noncompliance penalties,” states that, for
each of fiscal years 2019 through 2022, each political
appointee of a Federal department or agency that has
failed to certify compliance with the record submission
requirements, and is not in substantial compliance with an
implementation plan, shall not be eligible for the receipt of
bonus pay, excluding overtime pay, until the department
or agency — (i) certifies compliance with the record
submission requirements; or (ii) achieves substantial
compliance with an implementation plan.
• The Brady Act (34 U.S.C. 40901(g)), “Correction of erroneous system information,”
previously required the Attorney General, upon receipt of a request from a
prospective transferee to correct, clarify, or supplement records of the system with
respect to the prospective transferee, to “immediately consider the information,
investigate the matter further, and correct all erroneous Federal records relating to
the prospective transferee and give notice of the error to any Federal department
or agency or any State that was the source of such erroneous records.” Section
602 of Fix NICS, amends this requirement to explicitly define that the Attorney
General, not later than 60 days after the date on which the Attorney General
receives such information, must determine whether or not the prospective
transferee is the subject of an erroneous record and remove any records that are
determined to be erroneous.
• Any experiences with this problem prior to the law change?
• Section 603 of Fix NICS, “Reauthorization of NICS Act Record Improvement Program” amends
Section 103 of the NIAA (34 U.S.C. 40912) is amended by inserting a “Domestic Abuse and Violence
Prevention Initiative” to establish, for each of fiscal years 2018 through 2022, a priority area under
the NICS Act Record Improvement Program (NARIP) for a Domestic Abuse and Violence Prevention
Initiative that emphasizes the need for grantees to identify and upload all felony conviction records
and domestic violence records. The Attorney General may use not more than 50 percent of the
amounts made available under this subsection for each of fiscal years 2018 through 2022 to carry
out the initiative and shall give a funding preference under NARIP to States that have established an
implementation plan under section 107 and will use amounts made available under this
subparagraph to improve efforts to identify and upload all felony conviction records and domestic
violence records no later than September 30, 2022.
• Section 604 of Fix NICS, “Reauthorization of the National Criminal History Improvement
Program,” a State grant program for criminal justice identification, information, and
communication, amends Section 102 of the Crime Identification Technology Act of 1998 (34 U.S.C.
40301) to require “identification of all individuals who have been convicted of a crime punishable
by imprisonment for a term exceeding 1 year.”
• Section 605 of Fix NICS, “Improving information sharing with the States,” amends Title I of the
NIAA of 2007 by adding Section 107, “Implementation plan,” requiring the Attorney General to
establish within one year of the date of enactment of Fix NICS, in coordination with and for each of
the States and Indian tribal governments, a plan to ensure maximum coordination and automation
of the reporting or making available of appropriate records to the National Instant Criminal
Background Check System and the verification of the accuracy of those records during a 4-year
period specified in the plan.
• Section 605 of Fix NICS further imposes “Benchmark requirements” to enable the Attorney General
to assess the implementation of the plan, including (1) qualitative goals and quantitative measures;
and (2) a needs assessment, including estimated compliance costs.
• Section 605 of Fix NICS further requires a “Compliance determination,” mandating that the
Attorney General determine whether each State or Indian tribal government has achieved
substantial compliance with the benchmarks included in the plan not later than the end of each
fiscal year beginning after the date of the establishment of an implementation plan.
• The Attorney General is also required, under Section 605, to disclose and publish (A) the name of
each State or Indian tribal government that received a determination of failure to achieve
substantial compliance with an implementation plan under subsection (c) for the preceding fiscal
year; and (B) a description of the reasons for which the Attorney General has determined that the
State or Indian tribal government is not in substantial compliance with the implementation plan,
including, to the greatest extent possible, a description of the types and amounts of records that
have not been submitted; and (2) if a State or Indian tribal government described in paragraph (1)
subsequently receives a determination of substantial compliance, shall (A) immediately correct the
applicable record; and (B) not later than 3 days after the determination, remove the record from
the website of the Department of Justice and any other location where the record was published.
• Of course, Section 605 includes incentives. For each of fiscal years 2018 through 2022, the
Attorney General shall give “affirmative preference” to all Bureau of Justice Assistance
discretionary grant applications of a State or Indian tribal government that received a
determination of substantial compliance for the fiscal year in which the grant was solicited.
VAF & APPEALS
• Appeal challenges individual denial
• VAF (Voluntary Appeal File) is to fix erroneous denials going forward
• NICS does not allow FBI to keep personal information without
permission 28 CFR 25.9
• VAF gives NICS permission to keep the person’s information-28 CFR 25.10(g).
• Previously had to submit two applications
• As of 2018 any requests for VAF seems to also be treated as what they are
calling a “firearm challenge”
• When considering applying have two options: 1. Preemptory VAF
when don’t have an NTN. 2. VAF after denial.
• Number 1 is safest option but often takes longer.
VAF & APPEALS
• Applications consists of: Application form, fingerprint card, release, and legal
memo
• Our memos include factual bullet points of conviction then specific analysis of
firearms rights under both state and federal law.
• FBI website says processed in order they are received-not true
• We have submitted some that get approved in 1 month-others have taken 3+ years.
• Per the FBI website they are processing applications from 2016 currently
• FBI website also says they will no longer provide updates on applications
• FBI has given us conflicting wait times
• At one point in October 2015 appeals/VAF stopped being processed
completely when all 70+ examiners pulled to review initial NICS checks.
• This is when wait times started to get out of hand
VAF & APPEALS
• We have even had some applications lost by FBI after receiving
letters acknowledging receipt.
• VAF results: Denial, Approve but not UPIN, or UPIN issued
(Unique Personal Identification Number)
• Have not noticed any consistency between approval with no UPIN and
approval with UPIN.
• Unfortunately still don’t always get it right, as we have had to
overturn erroneous VAF denials, which has no official process.
• Even after a UPIN is issued in rare cases there will still be delays
/denials.
• We have had this happen to a client or two
Sources
• ATF.gov
• FBI.gov
• Bjs.gov
• THANK YOU TO MY TEAM:
• My law partner Clay Cheshire
• Attorney Michael Truman
• Attorney Bill Pegg
VOLUNTARY APPEAL FILE (VAF) APPLICATION U.S. Department of Justice
Date of application:____________________________
Federal Bureau of Investigation
Criminal Justice Information Services Division
Please fill out the following information: (* Denotes Mandatory Information)
*** THIS APPLICATION MUST BE ACCOMPANIED WITH A COMPLETED FINGERPRINT CARD ***
OMB No: 1110-0043
NOTE: If you are interested in applying for the VAF, please ensure you read and sign the Applicant’s Statement on the
reverse side of this application. An application cannot be processed without an original signature.
*Last Name *First Name Middle Name Cadence
Social Security Number *State of Residence Telephone Number
*Date of Birth *Place of Birth *Gender *Race

*Month *Day *Year (State)
1 American Indian or Alaskan Native
Male 2 Hispanic or Latino
3 Black or African American
4 Asian
Female 5 Native Hawaiian or Other Pacific Islander
6 White or Caucasian
7 Unknown
Height Weight Eyes Hair *Country of Citizenship
*MAILING ADDRESS (for receiving correspondence): *REASON FOR APPLICATION:
OTHER LEGAL NAMES -

Last Name First Name Middle Name Cadence
NOTE: THIS IS NOT AN APPEAL BROCHURE.
HOWEVER, THIS APPLICATION CAN BE
USED TO INITIATE AN APPEAL ALONG WITH
Alien Registration Number (*mandatory if Miscellaneous Numbers APPLYING FOR THE VAF. IF YOU WANT TO
Country of Citizenship is other than US) (Military ID, Driver’s License) INITIATE AN APPEAL, PLEASE PROVIDE THE
NICS TRANSACTION NUMBER ON THE
BOTTOM OF THIS APPLICATION.
FOR MORE VAF INFORMATION:
Customer Service 1-877-FBI-NICS (324-6427)
Telecommunications Device for the Deaf (TDD)
1-877-NICS-TTY (6427-889)
Additionally, if you have denied transactions you would like for the NICS Section to place under appeal along with your VAF
application, you must provide the NICS Transaction Number(s). NTN(s):
OMB No: 1110-0043
Brady Act Requirements

the NICS Section cannot retain a record of the oveturned into the VAF. Entry into the VAF will not
The Brady Handgun Violence Prevention Act appeal. If the record is not able to be updated, the automatically result in a proceed response on
of 1993 (Brady Act), Public Law 103-159, was signed purchaser continues to be denied or delayed, and if that subsequent purchases. A complete NICS check
into law in November 1993, requiring Federal individual appeals the decision the documentation must is still required and will result in a denial if
Firearms Licensees (FFLs) to request background be resubmitted on every subsequent appeal. additional prohibitive information is discovered.
checks on individuals attempting to purchase a The NICS Section is required to destroy any records
firearm. The permanent provisions of the Brady submitted to the VAF upon written request of the
For this reason, the Voluntary Appeal File
Act, which went into effect on November 30, 1998, individual. Additionally, if the NICS Section
(VAF) has been established. This process permits discovers a disqualifying record on the individual
required the U.S. Attorney General to establish the
applicants to request the NICS maintain information after their entry into the VAF, the NICS Section may
National Instant Criminal Background Check System
about themselves in the VAF to prevent future erroneous remove the individual’s information from the file.
(NICS) that any FFL may contact by telephone or by
denials or extended delays of a firearm transfer.
other electronic means for information to be suppilied
immediately on whether receipt of a firearm by a APPLICANT’S STATEMENT:
prospective transferee would violate Section 922 (g) Application Process
I give the information on my VAF application
or (n) of Title 18, United States Code, or state law. voluntarily with the understanding that if my
Under this process, individuals have the
The FBI developed the NICS through a option to supply the NICS Section with information such application is successful, I will be entered into the
cooperative effort with the Bureau of Alcohol, Tobacco, as name, date of birth, social security number, and any Voluntary Appeal File (VAF), maintained by the
Firearms and Explosives (ATF) and local and state law other identifying numbers using the VAF application FBI Criminal Justice Information Services
enforcement agencies. The NICS is designed to Division’s National Instant Criminal Background
included in this brochure to request entry into the file.
respond to background check inquiries to provide Check System (NICS) Section. I understand if at
The individual’s signature under the applicant’s
FFLs with an immediate response as to whether the any time I wish to be removed from the VAF, I can
statement is required to give the NICS Section
make a request in writing to the NICS Section to
transfer of a firearm can proceed or if more research permission to retain the information in this file. be removed. I also understand if the NICS Section
must be completed to make a determination if the Documents that may clarify records or prove identity discovers a disqualifying record after my entry
transfer would violate state or federal law. (e.g., fingerprint cards, court records, pardons, etc.) will into the VAF, the NICS Section may remove my
The NICS, which is operated by the FBI be entered in the VAF along with the descriptive information from the file.
Criminal Justice Information Services (CJIS) information from the application. This application, a set
Division’s NICS Section, is a national name check of rolled fingerprints and any supporting documentation
system that queries available records in the National should be sent to the following address:
__________________________ __________
Crime Information Center (NCIC), the Interstate
SIGNATURE DATE
Identification Index (III), and the NICS Index to
determine if prospective purchasers are disqualified Federal Bureau of Investigation
A signature is required on the above applicant’s statement.
If the required signature is absent, the application cannot
from receiving firearms. Criminal Justice Information Services Division
be processed and will be returned to the applicant as
National Instant Criminal Background Check System
insufficient. This brochure with original signature and
original fingerprint card must be returned by mail only.
Voluntary Appeal File Voluntary Appeal File
Post Office Box 4278

Under the Paperwork Reduction Act, a person is not required to respond to
A final rule was published by the Department a collection of information unless it displays a valid OMB control number.
Clarksburg, WV 26302-4278
The FBI Criminal Justice Information Services (CJIS) Division’s National
of Justice in The Federal Register, outlining the Instant Criminal Background Check System (NICS) Section tries to create
following changes. Per Title 28, Code of Federal forms and instructions that are accurate, can be easily understood, and
Regulations, Part 25.9(b)(1), (2), and (3), the NICS which impose the least possible burden to you to provide us with
After reviewing the application and fingerprint information. The estimated average time to complete the application is 5
Section must destroy all identifying information on card and validating the materials submitted by the minutes, 2 hours for fingerprinting, and 25 minutes for mailing for a total
allowed transactions within 24 hours of notification applicant, the NICS Section will enter successful of 2.5 hours. If you have comments regarding the accuracy of this estimate,
or suggestions for making this form simpler, you can write to the FBI CJIS
to the FFL. If a potential purchaser is delayed or applicants into the VAF. The applicant will be Division’s NICS Section, Post Office Box 4278, Clarksburg, West Virginia
denied a firearm and successfully appeals the decision, notified by mail if their application qualifies for entry 26302-9922.
XXXXXXX
A Primer: Gun
Rights and the VA
April 26, 2019
©Bradley Arant Boult Cummings LLP Attorney-Client Privilege.

Overview
 Background
 Process
 Success Story
 Developments
BACKGROUND
Brady Bill
 Created the National Instant Criminal Background
Check System (NICS)
 18 U.S.C. § 922(d)(4)
 Prohibits individuals adjudicated “mental defectives” from
purchasing firearms
 State and federal agencies report individuals

adjudicated as “mental defectives” to NICS
The VA and the Brady Bill
 VA financial incompetency determination
 38 C.F.R. § 3.353(a)
 Definition of mental incompetency. A mentally
incompetent person is one who because of injury or
disease lacks the mental capacity to contract or to
manage his or her own affairs, including disbursement
of funds without limitation.
 VA appoints fiduciary
 38 C.F.R. § 3.353(b)(2)
 Can appeal to Board of Veterans Appeals
 VA NICS
 Beneficiaries determined to be financially incompetent

are reported to NICS
 Beneficiary is deprived of Second Amendment rights

solely based on whether the beneficiary can administer
his own VA benefits
 NO public safety determination

Total* 171,083
"Mental Defectives" Reported to NICS by
VA 167,815 Federal Agencies
DOJ 2,156
Other 762
DHS 343
DOD 5
HHS 2
HUD 0
VA Other Federal
SSA 0
*December 2016
NICS Improvement Acts of 2007
 Requires federal agencies to develop programs to
allow beneficiaries to request relief from Brady Act
requirements
 NICS Relief Program

 Program administered by the VA to comply with NIAA
THE PROCESS
Options
 Reconsideration of Incompetency Determination

 NICS Relief Program
Reconsideration of Incompetency
Determination
Step 1: Appointment as Beneficiary’s Representative
 Complete VA Form 21-22a
Step 2: Request Beneficiary’s File
 Submit request to the VA under FOIA and Privacy Act
Step 3: Review Claim File & Gather Additional
Supporting Evidence
 Evidence of ability to conduct financial affairs
 Credit report
 Bill payment history
 Loan status
 Savings or retirement account balances
 Any supporting medical evidence
 Character witness statements

 Affirm ability to manage finances
 Beneficiary
 Spouse and/or fiduciary
 CPA
Step 4 – Reconsideration of Incompetency
Determination
 Request the VA reverse its financial incompetency

determination
Step 5 – Await VA Determination
 If VA grants relief
 VA will notify FBI/NICS
 FBI will remove beneficiary from NICS
NICS Relief Program
 Complete VA Form 21-22a
Step 2: Request Beneficiary’s File
 Submit request to the VA under FOIA and Privacy Act
Supporting Evidence
 Evidence of ability to conduct financial affairs
 Credit report
 Bill payment history
 Loan status
 Savings or retirement account balances
 Any supporting medical evidence
 Character witness statements

 Affirm ability to manage finances
 Beneficiary
 Spouse and/or fiduciary
 CPA
Supporting Evidence
 Additional requirements
 Statement from all character witnesses indicating the
beneficiary is not a threat to himself, family, community
 Mental health assessment
 Criminal history background check
Step 4 – NICS Relief Program
 Request relief from NICS

 Does not reverse financial incompetency determination
 Fiduciary remains appointed
Step 5 – Await VA Determination
 If VA grants relief
 VA will notify FBI/NICS
 FBI will remove beneficiary from NICS
SUCCESS STORY
DEVELOPMENTS
Veterans 2d Amendment Protection Act
 Rep. Phil Roe (TN-1)
 H.R. 1181
 Supported by
 American Legion
 VFW
 AMVETS
 NRA
 Rearing before judge or magistrate
 Determine if threat to himself or others
 Passed House of Representatives in 2017
Veterans Second Amendment Rights Restoration Act of 2018
 Sen. Chuck Grassley (IA)

 S. 2386
 Substantively similar to H. 1181
 Referred to Committee on Veterans’ Affairs
Sources of Authority and Additional Information
 National Firearms Act of 1934, codified at 26 U.S.C. § 5801
 Gun Control Act of 1968, codified at 18 U.S.C. § 921
 Brady Handgun Violence Prevention Act, Pub. L. No. 103–159
 NICS Improvement Amendments Act of 2007, Pub. L. 110-180
 18 U.S.C. § 922(d)(4), (g)
 38 C.F.R. § 3.353, Determinations of Incompetency and Competency
 Veterans Administration Fast Letter 10-51 (2014).
 Board of Veterans’ Appeals Decision No. 1016976 (BVA May 6, 2010)

QUESTIONS?
Restoring a Veteran’s 2d Amendment Rights
Application for Restoration of Fiscal Competency with the Department of Veterans Affairs and
Removal from the National Instant Criminal Background Check System
Background:
The Brady Handgun Violence Prevention Act of 1993, Pub. L. No. 103–159 (Brady Act), prohibits
certain individuals from purchasing firearms, including those determined to be “mental defectives”
by state and federal agencies. The Brady Act also created the National Instant Criminal Background
Check System (NICS), commonly referred to as the “no-buy” list.
In processing applications for benefits, the Department of Veterans Affairs (VA) rates certain veteran
beneficiaries as “incompetent” and incapable of administering their own benefits, which results in the
appointment of a fiduciary to administer those benefits. See 38 C.F.R. § 3.353. The VA has
determined these beneficiaries qualify as “mental defectives” under the Brady Act. The VA
automatically reports the veterans to NICS, resulting in the deprivation of their 2d Amendment
rights.
This checklist is designed to assist pro bono attorneys appeal the incompetency determination and/or
request removal from NICS on behalf of veterans who wish to exercise their 2d Amendment rights.
□ Complete VA Form 21-22a, Appointment of Individual as Beneficiary’s Representative

(https://www.va.gov/vaforms/form_detail.asp?FormNo=21-22a)
− Complete Blocks 1–7A

− Block 7B: check the “Attorney” box
− Complete Blocks 8–11 as appropriate
− Beneficiary must sign Block 12
− Attorney must sign Block 16
□ Mail or fax VA Form 21-22a to the VA
− Fax: 844-531-7818
− Mail: send to the appropriate Regional Office for your beneficiary
(https://www.benefits.va.gov/benefits/offices.asp)
Step 2: Request the Beneficiary’s File
Submit a request to the VA under the Freedom of Information Act (FOIA) and Privacy Act to
access the beneficiary’s entire VA claim file, including medical records, claim information,
VA decision records, fiscal competency determination records, and correspondence
□ Draft FOIA/Privacy Act Request Letter
− Sample language:
1
I am writing on behalf of my client, NAME. I have included VA Form 21-22a,
Appointment of Individual as Beneficiary’s Representative, with this letter.
Please consider this a request for NAME’s files maintained by the Department of
Veterans Affairs (VA) pursuant to the Privacy Act, 5 U.S.C. § 552, and the
Freedom of Information Act (FOIA), 5 U.S.C. § 552a, as well as 38 C.F.R.§1.550
and 38 C.F.R. § 1.577. Consistent with the requisite timelines, please provide all
documents contained in his entire file or files, including, but not limited to service
records; service medical records; post-service medical and treatment records;
correspondence between the VA and NAME; internal VA correspondence
regarding NAME’s claim, claims, claim status; and any other documents relating
to his claim.
□ Mail 1 to Department of Veterans Affairs

Claims Intake Center
PO Box 4444
Janesville, WI 53547-4444
Fax: 844-531-7818
− VA Form 21-22a may also be enclosed with the FOIA/Privacy Act request
Step 3: Review Claim File and Gather Additional Supporting Evidence
□ Gather evidence from beneficiary

− Evidence of ability to conduct his/her own financial affairs
o Credit report
o Bill payment history
o Status of mortgage and/or other loans (vehicles, credit cards) as applicable
o Savings or retirement accounts records, including balance and frequency of
deposits
o Any medical evidence that will support the request
− Character witness statements 2
o Beneficiary. The beneficiary’s statement should describe the beneficiary’s

involvement in his/her own financial affairs and, if applicable, those of the
family.
The beneficiary’s statement should outline the evidence submitted, describing the
beneficiary’s history of paying bills on time, absence of delinquent accounts,
home ownership status, record of timely paying taxes, and absence of overdraft or
1
The VA authorizes accredited attorneys to access beneficiary records in an electronic format.
However, this process can be onerous and time-consuming. For additional information on
accreditation and electronic access, see https://www.va.gov/ogc/accreditation.asp and
https://www.va.gov/OGC/docs/Accred/HowtoApplyforAccreditation.pdf.
2
Note: the VA does not require character witness statements to be sworn declarations or affidavits,
though using sworn statements may assist the VA in assessing the declarant’s credibility.
2
non-sufficient funds notices, as well as his/her general control over the family
finances.
o Spouse. If applicable, the spouse’s statement should describe the beneficiary’s

contributions to managing his/her own financial affairs, as well as the evidence
submitted. The spouse’s statement should affirm the beneficiary is able to
manage his/her VA benefits without the aid of a fiduciary.
The spouse’s statement should indicate how long he/she has known the
beneficiary and his/her basis for knowledge of the beneficiary’s ability to manage
VA benefits.
o Fiduciary, if not the spouse. The fiduciary’s statement should describe the
beneficiary’s contributions to managing his/her own VA benefits and state the
assistance of a fiduciary is no longer needed.
The fiduciary’s statement should indicate how long he/she has known the
beneficiary, as well as the basis for his/her opinion.
o CPA or other financial professional. If the beneficiary employs a CPA or other

financial professional, a statement from this individual could be helpful.
o Additional statements. As applicable, collect character witness statements from

any other helpful source, including clergy, law enforcement, employers, friends,
or other family members. The statements should identify the individual, to
include complete contact information, and describe person’s relationship with the
beneficiary and frequency of contact. The individual should attest to the
beneficiary’s good reputation.
− Special note for requests under Option 2, NICS Relief Program (described in detail
below)
o Statement from the beneficiary’s primary mental health physician. Requests

under the NICS Relief Program require a statement from the beneficiary’s
primary mental health physician. The statement must assess the beneficiary’s
current and past (5-year period preceding the request) mental health status,
specifically whether the beneficiary has ever been a danger to himself/herself or
others, and whether he/she would be a danger if the VA granted relief. The
assessment underlying the statement must be conducted during the 90-day period
immediately preceding the relief request.
o All character witness statements must indicate whether the beneficiary has a
reputation for violence and whether the beneficiary would be a danger to
himself/herself if the VA granted relief, and the beneficiary purchased a firearm.
o The VA will also obtain a criminal history report as part of the NICS Relief
Program.
3
After gathering evidence, the attorney must help the client choose between two potential courses of
action:
− Option 1: Request Reconsideration of the Incompetency Determination

− Option 2: NICS Relief Program
Step 4 - Option 1: Request Reconsideration of Incompetency Determination
For this option, the attorney is requesting the VA reverse the incompetency determination
and remove the fiduciary. A beneficiary may request a re-evaluation of his/her ability to
manage VA benefits at any time. If the incompetency determination is reversed, the VA will
request the beneficiary’s name be removed from NICS.
□ Draft letter requesting reconsideration.

− This option does not require a specific VA form or process
− Clearly request reconsideration and describe the supporting documentation
− Enclose the supporting documentation, including character witness statements
□ Mail or fax the entire package to the VA

− Fax: 844-531-7818
− Mail: send to the appropriate Regional Office
Step 4 - Option 2: NICS Relief Program
The NICS Improvement Amendments Act of 2007 (NIAA) requires the VA to administer a
program that allows beneficiaries the opportunity to request relief from the reporting
requirements imposed by the Brady Act. In contrast to Option 1, pursuing this option requires
the beneficiary to undergo an additional mental health assessment and a criminal history
background check. Note, this option does not automatically reverse an incompetency
determination and will not necessarily result in the removal of the fiduciary.
□ Draft letter explicitly requesting relief

− This option does not require a specific VA form
− Clearly request relief from the Brady Act requirements under the NICS Relief Program
− Describe the supporting documentation, including character witness statements
o Include the statement from the primary mental health physician
− Clearly indicate the beneficiary is not a threat to himself/herself, his/her family, and/or the
community at large

− Fax: 844-531-7818
− Mail: send to the appropriate Regional Office for the beneficiary
Step 5: Await the VA’s decision.
4
− If the VA grants the relief requested, the VA will notify the Department of Justice, which
will then remove the beneficiary’s name from NICS.
− May take up to 60 days
Sources of Authority and Additional Information:
National Firearms Act of 1934, codified at 26 U.S.C. § 5801
Gun Control Act of 1968, codified at 18 U.S.C. § 921
Brady Handgun Violence Prevention Act, Pub. L. No. 103–159
NICS Improvement Amendments Act of 2007, Pub. L. 110-180
18 U.S.C. § 922(d)(4), (g)
38 C.F.R. § 3.353, Determinations of Incompetency and Competency
Veterans Administration Fast Letter 10-51 (2014).
Board of Veterans’ Appeals Decision No. 1016976 (BVA May 6, 2010)
5
Restoring a Veteran’s 2d Amendment Rights
□ Complete VA Form 21-22a, Appointment of Individual as Beneficiary’s Representative

(https://www.va.gov/vaforms/form_detail.asp?FormNo=21-22a)
□ Mail or fax VA Form 21-22a to the VA

− Fax: 844-531-7818
− Mail: send to the appropriate Regional Office for your beneficiary
Step 2: Request the Beneficiary’s File
□ Draft FOIA/Privacy Act Request Letter
□ Mail to Department of Veterans Affairs

Claims Intake Center
PO Box 4444
Janesville, WI 53547-4444
Fax: 844-531-7818
Step 3: Review Claim File and Gather Additional Supporting Evidence
□ Gather evidence from beneficiary

− Evidence of ability to conduct his/her own financial affairs
− Character witness statements (beneficiary, spouse, fiduciary, financial advisor)
− Include statement from mental health provider if pursuing NICS Relief Program
Step 4 - Option 1: Request Reconsideration of Incompetency Determination
□ Draft letter requesting reconsideration.

− Fax: 844-531-7818
− Mail: send to the appropriate Regional Office
Step 4 - Option 2: NICS Relief Program
□ Draft letter explicitly requesting relief

− Fax: 844-531-7818
− Mail: send to the appropriate Regional Office for the beneficiary
Step 5: Await the VA’s decision. If the VA grants the relief requested, the VA will notify the
Department of Justice, which will then remove the beneficiary’s name from NICS.
Section Five
Dwight D. Van Horn
Making and Gunsmithing Firearms: Unlicensed Activities, “80%

Receivers,” and 3D Printing
Stephen P. Halbrook, Ph.D.

DWIGHT D. VAN HORN
ABSTRACT FOR 2019
FIREARMS LAW SEMINAR
My talk today will include the microscopic examinations of discharged ammunition components,
distance determination examinations and a couple of common firearms myths. There are many
other duties that the Firearms Examiner performs, serial number restoration, firearm operability,
trajectory analysis and reconstruction to name a few.
The field of Firearms Identification is often, incorrectly, referred to as Ballistics. Ballistics is its
own science and deals with how a cartridge interacts with a firearm, internal ballistics, how the
bullet acts in flight, exterior ballistics and how the bullet acts when it strikes an object, terminal
ballistics. Ballistics is not something commonly explored in the normal course of criminal
investigations.
Firearms Identification is actually a sub-set of the broader area of Toolmark Examination; did
that screwdriver pry open that screen door, did that pair of bolt cutters cut that lock, etc. The
area that consumes most of a Firearms Examiner’s time in the lab is microscopic examinations of
discharged bullets and cartridge cases, attempting to find if evidence from a crime scene has
more than one source and if firearms are submitted in the case, to see if the recovered evidence
matches the submitted firearms. The examination consists of looking for matching individual
striation patterns or impression marks on bullets and cartridge cases. These examinations look at
the accidental characteristics that are left behind during the manufacturing of various
components of the firearm. As MANY tests have shown, these accidental characteristics on each
one of these components is unique to that particular component. In conjunction with many
firearms and tool manufacturers over many years and the Association of Firearm and Tool Mark
Examiners, consecutively manufactured parts, barrels, firing pins, screw drivers blades and
cutting tools, just to name a few have been examined to determine if the accidental
characteristics left behind in the manufacturing process are unique, and they are. These
characteristics may then be transferred to the bullets, cartridge case, screen doors or hasp and
possibly enabling the Firearms Examiner to determine if the evidence matches the firearm or the
tool.
The examination can produce three results, positive, negative and inconclusive. A positive result
is rendered when there is an overwhelming amount of agreement between the accidental
characteristic on the items under examination. A negative opinion is rendered when there is a
distinctly different pattern displayed on the two items. An inconclusive result is rendered when
there is something less than an overwhelming amount of agreement in the characteristics on the
items. These ARE subjective opinions based on the experience and knowledge of the Firearms
Examiner. These decisions are reached after a deliberative and thorough examination. I believe
that now all crime labs in the country require that all examinations, in all forensic disciplines,
require peer review before reports are issued by the lab, an excellent practice.
1
Distance determination testing is conducted when the firearm muzzle to target distance of
gunshot residue patterns is in question. (This gunshot residue testing is not the same testing
conducted to determine if someone discharged a firearm.) Essentially, the same distance
determination testing is done for shot patterns with shotguns. Both cases require the actual
firearm in question and the same make and caliber of ammunition used in order to accurately
reproduce the powder or shot patterns. Generally, the pattern of gunshot residue and shotgun
pellets increase in diameter and decrease in density as the distance between the muzzle and the
target increase. This testing is usually requested by an investigator when the evidence of the
powder or shot pattern does not jibe with the story offered by the subject or witnesses. ANY
opinion offered on distance determination of powder and shot patterns without conducting
comprehensive distance determination testing is worthless.
2
PICTURE LEGEND
1. Modern comparison microscope
2. Barrel rifling profiles, conventional left, Glock type, right
3. Bullet comparison
4. Damaged bullet comparison
5. Image of non-matching comparison
6. Breechface of Glock pistol
7. Firing pin and breechface impression of Glock pistol
8. Conventional firing pin impression
9. 82mm mortar firing pin impression
10. Mortar firing pin impression comparison
11. Cartridge being chambered
12. Comparison of chamber mark.
13. View of breechface, extractor and ejector
14. Ejector mark comparison
15. Extractor mark comparison
16. Rifle magazine.
17. Magazine signature.
18. Revolver discharge, note bullet.
19. Hard contact diagram.
20. Hard contact gunshot over bone.
21. Contact muzzle impression to soft tissue.
22. Close range gunshot residue pattern, about 6 -9”.
23. Intermediate range gunshot residue pattern, about 12-18”.
24. Distant gunshot residue pattern, greater than 24”
3
CURRICULUM VITAE
DWIGHT D. VAN HORN
FORENSIC FIREARMS EXAMINER
Forensic Firearms Services Phone: (208) 772-6703

1761 E. Foxborough Ct. Fax: (208) 772-7903
Hayden, ID 83835 Cell: (208) 699-1808
E-Mail: ddvanhorn@roadrunner.com
EDUCATION AND TRAINING:
1979 Mercer County Community College, Trenton, NJ – A.S. Degree, with Honors
1980 F.B.I./P.O.S.T./N.R.A. Firearms Instructor Certification, San Bernardino, CA
1980 Field Training Officer Course, College of the Redwoods, Eureka, CA
1985 Basic criminal Investigation Course, L.A.S.D.
1985– 1987
Successfully completed an extensive two-year Firearms and Toolmark Examiners
training course as established by the Association of Firearms and Toolmark Examiners.
1985 Law Enforcement Armorers Course, Lassen College, Susanville, CA
1986 Recognition and Operation of Soviet Bloc Firearms, U.S. Army Aggressor Command
1987 Beretta Pistol Armorers, Course, L.A.S.D.
1989 Glock Pistol Armorers Course, Virginia Beach, VA
1989 A.F.T.E. Training Seminar, Virginia Beach, VA
1989 F.B.I. Gunpowder and primer Residue Course, Quantico, VA
1989 Wound Ballistics Seminar, Letterman Army Hospital, San Francisco, CA
1991 A.F.T.E. Training Seminar, Houston, TX
1991 Remington Armorers Course, Houston, TX
1992 F.B.I. Crime Scene Investigation Course, Quantico, VA
1993 Assault Weapons Identification Course, Orange County, CA
1994 International Wound Ballistics Seminar, Sacramento, CA
1994 Double Action Pistol Armorers Course, Lassen College
1995 Full Automatic Firearms Course, Lassen College
1995 Ruger Firearms Armorers Course, L.A.S.D.
1995 Colt M-16/AR-15 Armorers Course, Jackson, MS
1996 Heckler & Koch Armorers Course, Jackson, MS
1996 A.F.T.E. Training Seminar, Milwaukee, WS
1996 Smith & Wesson Sigma Armorers Course, Jackson, MS
1997 Sig-Sauer Pistol Armorers Course, Jackson, MS
1998 International Wound Ballistics Assn. Seminar, Los Angeles, CA
2006 Smith & Wesson Revolver Armorers Course, Springfield, MA
2006 Smith & Wesson Pistol Armorers Course, Springfield, MA
2006 Springfield Armory Museum Tour, Springfield, MA
2008 Colt Traveling Museum, Spokane, WA
2008 FBI Gunpowder and Primer Residue Course, Spokane, WA
Total training hours 4,760
1
SEMINARS:
1981 Revolvers vs Semi-Auto Pistols as Police Sidearm

1982 Evaluation of Soft Body Armor
1983 Firearms Training Liability
1984 Armor Piercing Ammunition
1985 Establishing a firearms Training Program
1986 Analysis of Police Shooting Situations
1987 Conversion Training, Revolver to Semi-Auto Pistols
1988 Law Enforcement Rifle Training
1988 Introduction to Smith & Wesson 3rd Generation Pistols
1989 Conversion Training, Revolvers to Semi-Auto Pistols, Advanced Techniques
1991 Sub-machinegun Training for Law Enforcement
2015 National Firearms Law Seminar, Nashville, TN
STUDY GROUPS:
1985 Sierra Bullet Co. – Manufacturer of Bullets

1985 Davis Custom Guns – Custom Gun Builder
1985 Pioneer Broach – Manufacturer of Rifling Tools
1986 Starline Brass Co. – Manufacturer of Cartridge Cases
1986 A.M.T. Firearms – Manufacturer of Firearms
1986 Jennings Firearms – Manufacturer of Firearms
1987 Mi-Wal Ammunition Co. – Re-manufacturer of Ammunition
1988 Calico Firearms – Manufacturer of Firearms
1988 Bar-Sto Barrels – Manufacturer of Pistol Barrels
1988 Pro-Load – Manufacturer of Ammunition
1989 Raven Arms – Manufacturer of Firearms
1990 A.T. Custom Gunworks – Custom Gun Builder
1990 I.A.I. Firearms – Manufacturer of Firearms
2010 Buck Knives – Knife Manufacturer
2015 CCI/Speer- Center Fire ammunition, Rimfire ammunition and Primer production
2018 Ponsness Warren – Reloading press manufacturer
PROFESSIONAL EXPERIENCE:
1988 - Present Technical Advisor to Entertainment Industry

1999 - Present Independent Firearms Examiner
2009 – 2010 Deployed, Baghdad, Iraq, Firearms Examiner, BAE
Systems
2007 - 2008 Contract Firearms Examiner, Washington State Patrol
2004 - 2008 Contract Firearms Examiner, Idaho State Police
1985 - May 1999 Deputy Sheriff/Firearms Examiner – L.A.S.D.
2
1983 - 1985 Part Time Gunsmith – The Davis Co., Anaheim, CA
1983 - 1984 Firearms Instructor – L.A.S.D.
1981 - 1999 Los Angeles Co. Sheriff’s Dept.
1980 - 1981 Range Master/Field Training Officer, Hermosa Beach P.D.
1979 - 1981 Hermosa Beach Police Dept.
1973 - 1979 Trenton, N.J. Police Dept.
1965 – 1968 New Jersey Air National Guard
1968 - 1969 United States Air Force
1969 – 1971 New Jersey Air National Guard
Final Rate – Sergeant E-4, Security Police
LICENSURES AND CERTIFICATIONS:
California Peace Officers Standards and Training – Advanced Certificate

California Peace Officers Standards and Training – Certified Instructor
New Jersey Police Training Commission – Certified Peace Officer
F.B.I/P.O.S.T./N.R.A. – Certified Firearms Instructor
NRA High Master Classification Pistol Shot – Revolver and Semi-Auto Pistol
NRA Distinguished Police Revolver Medal Holder
NRA Revolver 1490 Club
NRA Distinguished Police Semi-Auto Pistol Medal Holder
Distinguished Member – Association of Firearms and Toolmark Examiners
PROFESSIONAL SOCIEITIES:
Association of Firearms and Toolmark Examiners, Distinguished Member, Former Chairman,

Wound Ballistics Video Committee, Former Member, Safety Committee
International Wound Ballistics Association, former member, defunct 2002
Southern California Firearms Examiners Study Group, former member
California DOJ Ad Hoc Assault Weapons Identification Committee, 1989 – 1990
National Rifle Association, Benefactor Member, Member, Board Of Directors, Member of The
Executive Committee, Member of the Whittington Center Board of Trustees, Chairman
Competition Rules and Programs Committee, Member Action Shooting, Law enforcement and
Sport Shooting Committees California Rifle and Pistol Association, Life Member, Former
Chairman, Law Enforcement Committee, Member, Legal Committee. California Police Pistol
Association, Life member, Former President. Police Marksman Association, Life Member
PUBLICATIONS:
1984 “Rapid Revolver Reloading”, Police Marksman Association Magazine

1990 “Metallic Ballistic Fragments: M.R.I. Safety and Artifacts”
Co-Author, Radiology Journal
1998 “Use of Step Drill For Recovering Bullet Evidence From Vehicles”, AFTE Journal
3
PRESENTATIONS, LECTURES AND TRAINING PROVIDED:
As a regular part of my duties with the L.A.S.D. Crime Lab, lectures on all aspect of firearms
identification and investigation, firearms and ammunition were frequently presented to the
following groups;
California District Attorney’s Association

Los Angeles County District Attorney’s Office
Los Angeles County Public Defender’s Office
Los Angeles County Council’s Office
Harbor Bar Association
Los Angeles County Coroner’s Office
Los Angeles County Sheriff’s Department
California Highway Patrol
Other Los Angeles County and State of California Law Enforcement Agencies
To date, have trained 6 other individuals as Firearms Examiners.
As part of my deployed duties, provided training in Firearms Identification and crime scene
investigation to the following groups;
USA Special Forces including Green Berets and Rangers

USA, USAF, USN and USMC EOD technicians
USA and USAF Military Police
Provost Marshalls Office
USA, USN and USAF JAG officers, Prosecution and Defense
Iraqi Police Advisors and Law Enforcement Professionals (American LEOs assisting Iraqi Police
& Army)
Iraqi Army Judges
Iraqi Civilian Judges
Iraqi Police
LOCATIONS WORKED:
Have worked prosecution, defense and plaintiff cases for clients in Alaska, California, Colorado,
Idaho, Ohio, Michigan, Minnesota, Mississippi, Montana, South Dakota, Texas, Washington,
West Virginia, Wyoming and Canada.
4
COURT TESTIMONY:
Qualified as a Firearms Expert, for the Prosecution and the Defense on more than 400
occasions in Federal, Superior and Municipal Courts, Grand Juries and Coroner’s
Inquests in Los Angeles, Ventura, Kern and San Diego Counties in California.
Washington County, Oregon. Ada, Blaine, Bonneville, Bonner, Boundary, Canyon,
Caribou and Minidoka Counties in Idaho. Minnehaha County, South Dakota, Asotin
County, Washington. Natrona County, Wyoming.
5
GENERAL FEE SCHEDULE AND EXPENSE POLICY FOR
FORENSIC FIREARMS SERVICES
Dwight D. Van Horn Phone: (208) 772-6703

1761 E. Foxborough Ct. Fax: (208) 772-7903
Hayden, ID 83835 Cell: (208) 699-1808
E-Mail: ddvanhorn@roadrunner.com
EFFECTIVE January 1, 2019
• RETAINER: Normally, a minimum retainer of $2,500.00 must be received prior to working the
case or reviewing documents. The retainer may be negotiable after initial consultation with the client.
The retainer is also required if the client declares Forensic Firearms Services, with or without their
permission, as an expert witness to the court or opposing counsel. Preliminary telephonic discussions
of potential cases are welcome and there is no charge for this service. The retainer will be credited
toward work completed with the first $750 as non-refundable in the event the matter is resolved or
settled after Forensic Firearms Services is retained, but before completing the work requested. Other
than initial consultation and brief telephone conversations, no work will be performed prior to receipt
of full payment of the agreed upon retainer.
• HOURLY RATE: $175.00 Per Hour for the following professional services rendered, consultation,
report writing, research, site inspections, reconstructions, travel time, preparation for court and
telephone conferences in excess of 30 minutes. Travel time is calculated portal to portal from the
actual time of departure and arrival. These rates apply to work performed Monday – Friday 9:00AM
– 5:00PM. Any work or meetings specifically requested by the client to be performed outside of
these hours or on holidays will be billed at $265.00 per hour.
• DEPOSITIONS AND COURT TESTIMONY: The fee for depositions and court testimony is
$250.00 per hour with a two hour minimum. The client is responsible for payment of travel time,
portal to portal, at the rate of $175.00 Per Hour. This also includes preparation and “waiting time”
prior to and following testimony. Payment of the minimum fee, plus estimated travel time, must be
received from deposing counsel prior to the start of and /or continuation of the deposition. It is the
client’s responsibility to notify opposing counsel of the deposition fee.
• OUT OF AREA SERVICES, TESTIMONY OR DEPOSITIONS: These services are $2,500.00

PER DAY. They include all work performed outside a 250 mile radius of Coeur d’Alene, Idaho.
Travel, lodging, meals and other incidental expenses are the responsibility of the party
requesting the services. Generally, travel expenses are payable in advance, unless otherwise
agreed upon.
• INVOICES: Itemized invoices submitted to the client are payable within 30 days of receipt. The
statement may include incidental expenses for materials used or contracted services pertaining to the
instant case. NOTE: PLEASE MAKE CHECKS PAYABLE TO DWIGHT D. VAN HORN
AND MAIL TO THE ABOVE ADDRESS. All work may cease on a case, including reports and
court testimony, when an unpaid balance exceeds forty five (45) days. It is the responsibility of the
client to pay the invoice upon receipt and not to request that the payment be delayed until funds are
received by the client from some other source. The client is identified as the law firm representing
either the defendant or plaintiff, NOT the party or parties that they represent as legal counsel for this
particular action. It is understood that the client and Forensic Firearms Services are entering into a
professional relationship and the client is solely responsible for payment of all professional services.
MAKING AND GUNSMITHING FIREARMS:
UNLICENSED ACTIVITIES,
“80%RECEIVERS,”
AND 3D PRINTING
STEPHEN P. HALBROOK, Ph.D.
Attorney at Law
April 26, 2019
STEPHEN P. HALBROOK, PH.D.
ATTORNEY AT LAW
SUITE 403
3925 CHAIN BRIDGE ROAD
FAIRFAX, VIRGINIA 22030
TELEPHONE (703) 352-7276 protell@aol.com

FAX (703) 359-0938 www.stephenhalbrook.com
Civil litigation & criminal defense since 1978. Focus on firearms law and constitutional
issues involving Federalism and Bill of Rights guarantees. Represent firearm associations,
manufacturers, importers, and owners in administrative, civil, & criminal proceedings under
federal, state, & local law. ATF classifications, compliance, and FFL revocations.
Member of Virginia State Bar, D.C. Bar, U.S. Supreme Court, U.S. Courts of Appeals –
all circuits. Testified in U.S. Senate & House Judiciary Committees – SHARE Act, Fix NICS,
Bump Stocks. Georgetown University Law Center, J.D. (1978); Florida State University, Ph.D.
Philosophy (1972). Assistant Professor of Philosophy 1972-81, George Mason, Howard,
Tuskegee Universities. Senior Fellow, The Independent Institute.
Supreme Court practice: represented majority of members of Congress as amici curiae in

Heller v. D.C. (2008). Co-counsel for NRA in McDonald v. Chicago (2010). Argued and won:
Castillo v. U.S. (2000) (right to jury trial in GCA issue in Waco case); Printz v. U.S. (1997)
(Brady mandates to States); U.S. v. T/C Arms (NFA). Co-counsel in Small v. U.S. (2005)
(foreign convictions in GCA). Numerous federal & state appeals argued.
Books
Firearms Law Deskbook: Federal and State Criminal Practice (Thomson/Reuters 2018).
The Founders’ Second Amendment (updated ed. 2019). Cited in McDonald.
Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (1998). New Edition:
Securing Civil Rights (2010). Cited in Heller and McDonald.
Gun Control in Nazi-Occupied France: Tyranny and Resistance (2018).
Gun Control in the Third Reich: Disarming the Jews and “Enemies of the State” (2013).
Also in German, French, Portuguese.
That Every Man Be Armed (1984, 2013). Cited in Printz.
A Right to Bear Arms: State & Federal Bills of Rights (1989).
The Swiss and the Nazis (2006). Also in German, French, Polish.
Target Switzerland (1998, 2003). Also in German, French, Italian, Polish.
Articles (selected). See www.stephenhalbrook.com.

“Firearm Sound Moderators,” 46:1 Cumberland L. Rev. 33 (2016).
“Reality Check: The ‘Assault Weapon’ Fantasy,” 14 G’twn J. L. & Pub. Pol. 47 (2016).
“New York’s Not So ‘SAFE’ Act,” 78 Albany L. Rev. 789 (2014/15).
“Why Can’t We Be Like France?” 34 Fordham Urban Law J., No. 5, 1637 ( 2012).
TABLE OF CONTENTS
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. GUN CONTROL ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Unlawful Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Licensing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
“Willfully” Engaged in the Business Without a License . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Metaphysics of “Frame or Receiver”: 80% or 100%? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Manufacturer’s or Dealer’s License? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ATF Ruling 2009-1: Camouflaging or Engraving Isn’t Manufacture . . . . . . . . . . . . . . . 13
ATF Ruling 2009-2: Installing Drop-In Replacement Parts Isn’t Manufacture . . . . . . . 14
ATF Rul. 2010-10: Dealer-Gunsmith May Work on Firearms for a Manufacturer . . . . 16
ATF Ruling 2015-1: Providing Equipment to Work on Blanks is Manufacture . . . . . . . 17
Prohibition on Improper Guidance Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Firearm marking requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
II. STATE PROHIBITIONS ON MATERIAL FOR

AND MAKING OF UNMARKED FIREARMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
New Jersey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
III. 3D PRINTED FIREARMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

International Traffic in Arms Regulation (ITAR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Defense Distributed v. U.S. Department of State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Defense Distributed v. Gurbir Grewal, Attorney General of New Jersey . . . . . . . . . . . . 26
Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Federal Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
New Jersey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Are “80%” or “unfinished” receivers illegal? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Introduction
A federal firearms manufacturer’s license is required to engage in the business of

manufacturing firearms. No license is required to make a firearm for personal use or otherwise
when not engaged in the business. Issues arise regarding unlicensed activities that may or may
not constitute engaged in the business, including gunsmithing under a dealer’s license, what
constitutes a frame or receiver, what is an “80% receiver,” and 3D printing of guns. Gun Control
Act provisions, ATF rulings, and judicial decisions are analyzed below. In addition, some states
prohibit unmarked firearms and materials used to make such firearms. The issue of 3D printed
guns began with whether blueprints may be distributed on the internet and has evolved into
legislation to ban such guns other than as made by licensed manufacturers.
I. GUN CONTROL ACT
Definitions
18 U.S.C. § 921(a)
(3) The term “firearm” means (A) any weapon (including a starter gun) which will or is
designed to or may readily be converted to expel a projectile by the action of an explosive; (B)
the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any
destructive device. Such term does not include an antique firearm.
(11) The term “dealer” means (A) any person engaged in the business of selling firearms
at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making
or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a
pawnbroker. The term “licensed dealer” means any dealer who is licensed under the provisions
of this chapter.
(21) The term “engaged in the business” means –

(A) as applied to a manufacturer of firearms, a person who devotes time, attention, and
labor to manufacturing firearms as a regular course of trade or business with the principal
objective of livelihood and profit through the sale or distribution of the firearms manufactured; .
..
(C) as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who
devotes time, attention, and labor to dealing in firearms as a regular course of trade or business
with the principal objective of livelihood and profit through the repetitive purchase and resale of
firearms, but such term shall not include a person who makes occasional sales, exchanges, or
purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells
all or part of his personal collection of firearms;
(D) as applied to a dealer in firearms, as defined in section 921(a)(11)(B), a person who
devotes time, attention, and labor to engaging in such activity as a regular course of trade or
business with the principal objective of livelihood and profit, but such term shall not include a
person who makes occasional repairs of firearms, or who occasionally fits special barrels, stocks,
1
or trigger mechanisms to firearms;
(22) The term “with the principal objective of livelihood and profit” means that the intent
underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and
pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms
collection: Provided, That proof of profit shall not be required as to a person who engages in the
regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism.
Unlawful Acts
18 U.S.C. § 922
(a) It shall be unlawful –

(1) for any person –
(A) except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the
business of importing, manufacturing, or dealing in firearms, or in the course of such business to
ship, transport, or receive any firearm in interstate or foreign commerce;
(k) It shall be unlawful for any person knowingly to transport, ship, or receive, in
interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial
number removed, obliterated, or altered or to possess or receive any firearm which has had the
importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time,
been shipped or transported in interstate or foreign commerce.
(p)(1) It shall be unlawful for any person to manufacture, import, sell, ship, deliver,
possess, transfer, or receive any firearm –
(A) that, after removal of grips, stocks, and magazines, is not as detectable as the
Security Exemplar, by walk-through metal detectors calibrated and operated to detect the
Security Exemplar; or
(B) any major component of which, when subjected to inspection by the types of x-ray
machines commonly used at airports, does not generate an image that accurately depicts the
shape of the component. Barium sulfate or other compounds may be used in the fabrication of
the component.
(2) For purposes of this subsection –
(A) the term "firearm" does not include the frame or receiver of any such weapon;
(B) the term "major component" means, with respect to a firearm, the barrel, the slide or
cylinder, or the frame or receiver of the firearm; and
(C) the term "Security Exemplar" means an object, to be fabricated at the direction of the
Secretary, that is -
(i) constructed of, during the 12-month period beginning on the date of the enactment of
this subsection, 3.7 ounces of material type 17-4 PH stainless
steel in a shape resembling a handgun; and
(ii) suitable for testing and calibrating metal detectors . . . .
2
Licensing
18 U.S.C. § 923
(a) No person shall engage in the business of importing, manufacturing, or dealing in

firearms, or importing or manufacturing ammunition, until he has filed an application with and
received a license to do so from the Attorney General.
(i) Licensed importers and licensed manufacturers shall identify, by means of a serial
number engraved or cast on the receiver or frame of the weapon, in such manner as the Attorney
General shall by regulations prescribe, each firearm imported or manufactured by such importer
or manufacturer.
Penalties
18 U.S.C. § 924
(a)(1) . . . whoever – . . .
(D) willfully violates any other provision of this chapter,
shall be fined under this title, imprisoned not more than five years, or both.
3
“Willfully” Engaged in the Business Without a License
The Supreme Court's decision in Bryan v. United States, 524 U.S. 184 (1998), sought to
resolve the meaning of the willfulness requirement, but the decision leaves questions unresolved.
It held that the prosecution must prove that the defendant knew his conduct was unlawful, but
not that he was aware of the particular licensing requirement. The trial court erred in instructing
the jury that the defendant need not have known that his conduct was unlawful, but the error was
harmless under the facts there. It was clear enough that the defendant in Bryan knew that his
overall conduct was unlawful--he used "straw purchasers," who made false statements when
purchasing firearms; he filed the serial numbers off of the firearms; and he resold the firearms on
Brooklyn street corners known for drug dealing. Id. at 189.
To prove a "knowing" violation in §924, evil intent need not be shown. However, more is
required to show "willfulness": "The jury must find that the defendant acted with an
evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful."
Id. at 193.
The Court adopts the principle of Ratzlaf that it must be proven that "the defendant acted
with knowledge that his conduct was unlawful," id. at 192, but then adds about whether the
defendant must know the particular provisions of the law involved: "The danger of convicting
individuals engaged in apparently innocent activity that motivated our decisions in the tax cases
and Ratzlaf is not present here because the jury found that this petitioner knew that his conduct
was unlawful." Id. at 195. Thus, holds Bryan, "willfulness" in §924(a) "does not carve out an
exception to the traditional rule that ignorance of the law is no excuse; knowledge that the
conduct is unlawful is all that is required." Id. at 196.
But what about the situation where the defendant did not know that any of his conduct
was unlawful? Would ignorance of the licensing requirement then be an excuse? As Bryan notes,
"FOPA was enacted to protect law-abiding citizens who might inadvertently violate the law." Id.
at 195. In any event, the Court held that it was error to instruct the jury that the government is
"required to prove that he [the defendant] had knowledge that he was breaking the law." Id. at
199.
As Justice Scalia's dissent so artfully asks: "Everyone agrees that §924(a)(1)(D) requires
some knowledge of the law; the only question is which law?" Id. at 202. For Scalia, it would be
enough "if the defendant is generally aware that the actus reus punished by the statute--dealing in
firearms without a license--is illegal." However, the majority sets no limits to which law the
defendant must know he is violating. The "law" violated might be not just the filing off of serial
numbers, but double parking his car on Brooklyn street corners. "Once we stop focusing on the
conduct the defendant is actually charged with (i.e., selling guns without a license), I see no
principled way to determine what law the defendant must be conscious of violating." Id. at 202-
03.
Given these unanswered questions, the majority opinion in Bryan might be seen as the
4
beginning rather than the end point of resolution of the issue. It is apparent that the appellate
courts will have to refine Bryan and to apply it to other provisions with the willfulness
requirement.
5
Metaphysics of “Frame or Receiver”:
80% or 100%?
The term "firearm" means a "weapon ... which will or is designed to or may readily be
converted to expel a projectile," and also "the frame or receiver of any such weapon." 18 U.S.C.
§ 921(a)(3). Both the "designed" definition and the "may readily be converted" definition apply
to a weapon that expels a projectile, not to a frame or receiver. A frame or receiver is not a
"weapon," will not and is not designed to expel a projectile, and may not readily be converted to
expel a projectile.
Consistent with that reading, United States v. McMurty, 24 Fed. Appx. 594, 596 (7th Cir.
2001), upheld a jury instruction that "a firearm means: any weapon which will expel a projectile
by the action of an explosive; or any weapon which is designed to expel a projectile by the action
of an explosive; or any weapon which may be readily converted to expel a projectile by the
action of an explosive; or the frame or receiver of such weapon."
That case involved a defective semiautomatic pistol in which a round could not be loaded
into the firing chamber from the magazine, but could be loaded directly into the firing chamber,
and it would fire. The court held that it was permissible to instruct the jury with the above four
definitions on the basis that "where there are several acts upon which a jury could convict, a
general instruction listing all of the possible acts under which the jury can convict is
permissible." Id. at 596.
ATF's regulatory definition, 27 C.F.R. §478.11, provides: "Firearm frame or receiver.

That part of a firearm which provides housing for the hammer, bolt or breechblock,1 and firing
mechanism, and which is usually threaded at its forward portion to receive the barrel."
A district court held: "There is nothing ambiguous about the regulation. To qualify as a
receiver, a part must provide 'housing for the hammer, bolt or breechblock, and firing
mechanism.' ... Those are the only mandatory elements." United States v. 1,100 Machine Gun
Receivers, 73 F. Supp. 2d 1289, 1292 (D. Utah 1999), judgment aff'd, 9 Fed. Appx. 815 (10th
Cir. 2001). To put it more colloquially: “A receiver is similar to the chassis of a car. It houses the
operational parts that make a gun fire, much like a chassis houses the engine, transmission and
other mechanisms necessary to make an automobile operate. The parts typically housed by a
receiver are the gun's firing mechanisms--hammer, bolt, trigger, sear, and firing pins.” Id. at
815.
However, the court also suggested that the regulation's language does not require "that a
receiver must also be able to receive a barrel, by threading or some other means …." Id. at 1291.
1
"Breechblock. The locking and cartridge head supporting mechanism of a firearm that
does not operate in line with the axis of the bore." Glossary of the Association of Firearm and
Toolmark Examiners (2nd Ed. 1985), 21.
6
In referring to "which is usually threaded at its forward portion to receive the barrel," the
regulatory definition uses "usually" to refer to "threaded," because there are other ways to attach
a barrel. The definition of a frame or receiver should be read to include the element that "its
forward portion ... receive[s] the barrel," whether threaded or not. That reading would be
consistent with the ordinary definition. "[T]he government has furnished us with a glossary
published by the Associations of Firearms and Toolmark Examiners, which defines 'receiver' as
'[t]he basic unit of a firearm which houses the firing and breech mechanism and to which the
barrel and stock are assembled.'" Id. at 1292.
The above raises issues concerning the status of receivers which are made in two parts,
and of raw material which is only partially machined with receiver features.
Some rifles have receivers consisting of two parts. For instance, AR15 type
semiautomatic rifles have an upper receiver and a lower receiver. As explained in a 1971
Treasury memorandum about the M16 machinegun receiver, which also applies to the AR15
semiautomatic receiver:
The M-16 receiver is fabricated in two parts, and the Enforcement Division has
determined that the lower portion should be considered the receiver …. Both parts
were necessary to function as a "frame or receiver" in a machine gun. I can see
some difficulty in trying to make cases against persons possessing only the lower
part of a receiver, but insofar as the licensing, serial numbering, and special
occupational tax requirements are concerned, I feel that this is the only practical
solution.2
There would indeed be "difficulty in trying to make cases against persons possessing
only the lower part of a receiver," and indeed there does not appear to be any reported decision
of such a prosecution. The statute defines firearm to include "the frame or receiver," not just half
of a frame or receiver. Moreover, referring to ATF's definition in §478.11, the upper receiver,
not the lower receiver, provides housing for the bolt, the breechblock (the bolt carrier functions
as such), and the firing pin and certain other parts of the firing mechanism. The upper receiver,
not the lower receiver, is threaded at its forward portion to receive the barrel.
While ATF considers the AR15 lower receiver to be the "receiver," it considers the FN
FNC upper receiver to be the "receiver." ATF Ruling 2008-1 explains:
The FNC rifle consists of two major assemblies, the upper assembly and the
lower assembly. The lower assembly houses the trigger, hammer, disconnector,
safety/selector, and an automatic trip lever in the automatic version. It also
incorporates a pistol grip and a magazine release. The upper assembly houses a
2
CC:ATF-12,736, Subject: M-16 Receivers, Internal Revenue Service, Department of the
Treasury (March 1, 1971).
7
barrel that is attached to the upper assembly by means of a barrel extension. It
also houses the bolt carrier with gas piston affixed, gas tube and handguard, bolt,
operating rod and spring. The two assemblies are mounted together with a front
and rear takedown pin. Since 1981, ATF has classified the lower assembly as the
receiver for purposes of the GCA and NFA.
ATF has reconsidered its classification of the lower assembly of the FNC rifle as
the receiver. The upper assembly of the FNC rifle is more properly classified as
the receiver. The upper assembly of the FNC rifle houses the bolt and provides a
connection point for the barrel. Moreover, the upper assembly is classified as the
receiver on similar types of firearms, to include other FN rifles, such as the FN
FAL and FN SCAR.
Similarly, the frame or receiver of semiautomatic pistols actually includes both the
(lower) receiver and the slide. Referring to the definition in § 478.11, the slide, not the lower
receiver, provides housing for the breechblock (the slide functions as such; no bolt exists), the
firing pin, and certain other parts of the firing mechanism. The slide, not the lower receiver,
receives the barrel (which is usually not threaded). Again, there appears to be no case law
addressing this issue.
As noted, a second issue is whether raw material which is only partially machined with
receiver features – the so-called “80% receiver” – may constitute a "frame or receiver." There
are occasions in which ATF has obtained search warrants and instigated prosecutions on that
basis. The statute refers to "the frame or receiver of any such weapon," not to partially-machined
raw material which would require further milling, drilling, and other fabrication to be usable as a
frame or receiver.
Referring to ATF's definition in § 478.11, an unfinished piece of metal is not a "part" that
"provides housing" (in the present tense) for the hammer, bolt or breechblock, and other
components of the firing mechanism, unless and until it is machined to accept these components.
The definition does not include raw material that "would provide housing" for such components
if further machined. Nor may it be said that such piece of metal "is ... threaded at its forward
portion" so that a barrel may be installed.
The mail order purchase of AK-47 receiver flats, pieces of flat metal containing holes and
laser perforations, was the subject of United States v. Prince, 593 F.3d 1178 (10th Cir. 2010),
cert. denied, 560 U.S. 973 (2010). The purchaser consented to an interview at his premises by
ATF agents, who obtained incriminating evidence of various violations and obtained a search
warrant.
ATF Firearms Enforcement Officer Adam Galbraith had testified that the flats had holes
that allowed the attachment of a barrel through the use of a trunnion and the installation of a
hammer and trigger, and also had laser cuts that allowed the flats to be placed in a bench vice
and bent, using bare hands or a tool such as pliers. Id. at 1182. The district court suppressed the
8
evidence on the basis that a receiver flat is not a firearm frame or receiver:
[T]he court simply does not believe that a flat piece of metal with laser
perforations and holes constitutes a "receiver," i.e., a "firearm." Rather, the flat
piece of metal is somewhat akin to a piece of paper with lines drawn on it as a
guide to make a paper airplane. Although making the paper airplane might be the
intended use, it is not an airplane until it is properly folded. Until that time, it is a
patterned piece of paper. Simply put, this court has no evidentiary or legal basis
for holding that a flat piece of metal with laser perforations and some holes
constitutes, ultimately, a "firearm." It may become part of a firearm at some point,
but not until further work has been accomplished to allow it to secure the stock,
chamber, barrel and other parts. Until that time, it is not even a true component of
a firearm, only a potential component of a firearm.
Id. at 1183.
The Tenth Circuit reversed the order suppressing the evidence. Stating that it need not
decide whether the flats were firearms, it upheld probable cause for the search warrant based on
the consensual interview, inculpatory statements by the defendant, and items observed by the
agents that appeared to be contraband. Id. at 1188. When the case was remanded for trial, the
government did not pursue any charge that the receiver flats were firearms. The defendant was
convicted of manufacturing marijuana and making false statements to a firearms dealer, and
acquitted of using a controlled substance while possessing a firearm. Id. at 1161.
In sum, based on the statutory text, the regulatory definition, and common parlance,
where a frame or receiver as designed is in two parts, both parts should be present for the items
to constitute a frame or receiver. Moreover, the terms "frame or receiver" should not be
considered to include partially machined pieces of metal which are not capable of being put
together with the other parts to assemble a firearm, and which would require further milling and
drilling to constitute a true frame or receiver.
CAUTION: These conclusions are based on the plain definitions. ATF has pushed the
envelope and regards “frame or receiver” to be far more expansively. There are severe negative
incentives to follow ATF guidance for purpose of license revocation, criminal prosecution, and
forfeitures. Courts may defer to ATF opinions, despite deference rules being inapplicable in
interpretation of criminal statutes. Where a decision is made to challenge such positions, the
language of the statute and the regulatory definition provide significant support.
9
Manufacturer's or Dealer's License?
ATF takes the position that a dealer who assembles barrels onto firearms, shortens
barrels, or otherwise alters firearms must obtain a manufacturer's license and cannot operate
merely under a dealer's license. Given the definitions of "firearm," the "manufacturer" of a
firearm would be the person who makes a complete weapon or a frame or receiver thereof. A
person who fits a barrel to an already-manufactured frame or receiver would seem to be a
gunsmith-dealer, not a manufacturer.
Despite the statutory provisions, the final regulations promulgated following passage of
the Firearms Owners' Protection Act of 1986 included the following: "Manufacture. This term
and the various derivatives thereof shall include making, putting together, altering, any
combination of these, or otherwise producing a firearm." 27 C.F.R. § 178.11 (1988), 53 Fed.
Reg. 10,491 (1988). The only explanation for this new definition was as follows: "A definition
of the term 'manufacture' has been added to § 178.11 which is consistent with the definition of
the term 'make' in Part 179." 53 F.R. 10,482. (These sections are now renumbered as 478.11
and 479.11.)
However, the Part 179 regulations were promulgated pursuant to the National Firearms
Act, Chapter 53 of the Internal Revenue Code, 26 U.S.C. §§5801 et seq. 26 U.S.C. §5845(i),
which was repeated in 27 C.F.R. §179.11, provides: "The term 'make' and the various derivatives
of such word, shall include manufacturing (other than by one qualified to engage in such
business under this chapter), putting together, altering, any combination of these, or otherwise
producing a firearm."3 The terms "putting together" and "altering" make sense there because, for
instance, to "make" a shotgun with a barrel less than 18 inches (see §5845(a)(1)) would include
the "altering" of a long barrel shotgun by sawing off part of the barrel.
In a challenge to the definition of "manufacture" in Part 178 C.F.R., the U.S. District
Court for the District of South Carolina held: "With respect to the definition of 'manufacture'
contained in 27 C.F.R. §178.11, the court declares this regulation to be arbitrary and capricious
and unlawful, and, therefore, sets it aside pursuant to 5 U.S.C.A. §706, and enters a permanent
injunction against its enforcement by defendants ... ."4 The Fourth Circuit noted: "The
government does not appeal the district court's invalidation of that portion of 27 C.F.R. §178.11
defining the term 'manufacture.'" National Rifle Ass'n v. Brady, 914 F.2d 475, 478 n.2 (4th Cir.
1990).
In response to the above, ATF announced that it had "amended regulations in 27 C.F.R.
3
The Part 178 regulation was not consistent with §5845(i) because the former deleted the
parenthetical clause, which excludes manufacturers from the definition.
4
Judgment, National Rifle Ass' n v. Brady, Civil Action No. 2:88-2518, at 2 (D. S.C.,
Aug. 16, 1999), aff' d in part & rev' d in part, 914 F.2d 475, 478 n.2 (4th Cir. 1990).
10
part 178 in accordance with decisions by the United States District Court for the District of
South Carolina and by the United States Court of Appeals for the Fourth Circuit." T.D.
ATF-313, 1991 ATFQB-3, 27; also in 56 F.R. 131 (July 17, 1991). Acknowledging that the
definition had been set aside by the court, the final rule provided: "Section 178.11 is amended by
removing the definition for the term 'Manufacture.'" T.D. ATF-313, 1991 ATFQB-3, 28, 30.
For the above reasons, a dealer's license should encompass a person engaged in the
business of fitting barrels to receivers and other gunsmithing, and of selling such firearms. The
plain language of the law does not require such person to have a manufacturer's license.
Despite having its regulation defining "manufacture" as "altering" invalidated, ATF

continues to maintain that position. In a "Frequently Asked Questions" document for
manufacturers, ATF states:
Generally, a person should obtain a license as a manufacturer of firearms if the

person: 1) is performing operations that create firearms or alter firearms (in the
case of alterations, the work is not being performed at the request of customers,
rather the person who is altering the firearms is purchasing them, making the
changes, and then reselling them); 2) is performing the operations as a regular
course of business or trade; and 3) is performing the operations for the purpose of
sale or distribution of the firearms.5
ATF has continued to allege that such activities require a manufacturer's license. In
Broughman v. Carver, 624 F.3d 670 (4th Cir. 2010), a licensed dealer bought complete firearms
actions (frames or receivers with internal parts) and rifled barrels from other licensees, and then
threaded and chambered the barrels to fit the actions, blued the actions, and made wooden stocks
which he fitted to the actions and barrels. The court held that, despite §921(a)(11), the licensee
was engaged in "manufacture" and required such license.
Ignoring that the "dealer" definition authorized the activity described therein, the court
appealed to a dictionary definition and stated: "That the totality of Broughman's custom rifle
building may fall under the 'dealer' definition does not exclude him from being a 'manufacturer'
within the meaning of the Act because he meets that classification as well." Id. at 676. It added
that "if Broughman only repaired firearms, fitted new stocks on rifles, or interchanged choke
barrels, he would fit the definition of §921(a)(11)(B) 'dealer' but not that of a §921(a)(10)
'manufacturer.'" Id.
This disregarded that the "firearm" had already been manufactured when the frame or
receiver was produced and the serial number and manufacturer's name were placed thereon. If
everyone who added parts thereafter to the frame or receiver was a "manufacturer," each one
would be required to stamp its own serial number, manufacturer's name, and place of
5
http://www.atf.gov/firearms/faq/manufacturers.html (visited July 20, 2016).
11
manufacture on the firearm. A single firearm could end up with a dozen manufacturer's names
inscribed thereon, an absurd result. Recognizing that, ATF encourages each person who alters a
firearm in its expanded, but changing definition of “manufacture” to obtain a non-marking
variance in order that firearms will not have multiple manufacture markings and can be traced
without confusion.
12
ATF Ruling 2009-1:6
Camouflaging or Engraving Isn’t Manufacture
Any person who engages in an activity or process that primarily adds to or changes a firearm's
appearance, by camouflaging a firearm by painting, dipping, or applying tape, or by engraving
the external surface of a firearm, does not need to be licensed as a manufacturer under the Gun
Control Act. Any person who is licensed as a dealer/gunsmith, and who camouflages or engraves
firearms as described in this ruling does not need to be licensed as a manufacturer under the Gun
Control Act. Any person who is engaged in the business of camouflaging or engraving firearms
as described in this ruling must be licensed as a dealer, which includes a gunsmith, under the
Gun Control Act.
Camouflaging refers to a patterned treatment using a variety of different colors that enables a
firearm to blend into a particular outdoor environment. This typically involves painting, dipping,
or applying a tape over the firearm's wood and/or metal parts.
Engraving firearms is a process in which a decorative pattern is placed on the external metal of a
firearm primarily for ornamental purposes. The engraving can be cut by hand or machine, or
pressed into the metal. There are other engraving techniques that cut designs into firearms, such
as checkering or scalloping.
Halbrook comments
Based on the above, ATF's position appears to be that a firm that camouflages or
engraves a firearm after it has been shipped from the original manufacturer does not need a
manufacturer's license. However, if the manufacturer subcontracts with another firm to do the
blueing, camouflaging, or engraving, that firm apparently needs a manufacturer's license, despite
what the Act defines as a "firearm" already having been manufactured. ATF Ruling 2009-1
almost concedes as much by stating: "Performing a cosmetic process or activity, such as
camouflaging, that primarily adds to or changes the appearance or decoration of a firearm is not
manufacturing…. Likewise, external engravings are cosmetic in nature and primarily affect only
the appearance of a firearm."
6
https://www.atf.gov/firearms/docs/ruling/2009-1-firearms-manufacturing-activities-cam
ouflaging-or-engraving-firearms/download.
13
ATF Ruling 2009-2:7
Installing Drop-In Replacement Parts Isn’t Manufacture
Any person who installs "drop in" replacement parts in or on existing, fully assembled firearms
does not manufacture a firearm, and does not need to be licensed as a manufacturer under the
Gun Control Act. A "drop in" replacement part is one that can be installed in or on an existing,
fully assembled firearm without drilling, cutting, or machining. A replacement part, whether
factory original or otherwise, has the same design, junction, substantially the same dimensions,
and does not otherwise affect the manner in which the weapon expels a projectile by the action
of an explosive. Any person who is licensed as a dealer, which includes a gunsmith, and who
installs "drop in" replacement parts in or on existing, fully assembled firearms as described in
this ruling does not need to be licensed as a manufacturer under the Gun Control Act. Any
person who is engaged in the business of installing "drop in" replacement parts in or on existing,
fully assembled firearms as described in this ruling must be licensed as a dealer, which includes
a gunsmith, under the Gun Control Act.
Persons may buy "drop in" replacement firearm parts to replace worn or broken original factory
parts. Replacement parts, such as barrels, triggers, hammers, and sears have been designed so
that they can be dropped in to replace existing parts on fully assembled firearms. A "drop in"
replacement part is one that can be installed in or on an existing, fully assembled firearm (not
solely a frame or receiver) without drilling, cutting, or machining.
Halbrook comments
The premise of the ruling is that installation of drop in parts does not "alter" the firearm:
"Installing 'drop in' parts in or on existing, fully assembled firearms, whether factory original or
otherwise, does not result in any alteration to the original firearms so long as they are
replacement parts." Yet the definition of "manufacture" to include "alter" was explicitly
invalidated by the courts.
Moreover, ATF Ruling 2009-2 proceeds to note: "The term 'dealer' is defined by 18
U.S.C.A. 921(a)(11) and 27 CFR 478.11 to include any person engaged in the business of selling
firearms at wholesale or retail, or repairing firearms or making or fitting special barrels, stocks,
or trigger mechanisms to firearms." In repairing, making, or fitting firearms and such parts, a
gunsmith is not limited to installing drop in parts, but may also engage in drilling, cutting, or
machining. Fitting a special barrel may require filing or machining or may just drop in, and the
gunsmith may not know what is required until commencing the task.
Thus, while correctly stating that a manufacturer's license is not needed for installing
drop in parts, the ruling would unduly limit what §921(a)(11) explicitly allows under a dealer's
license: "any person engaged in the business of repairing firearms or of making or fitting special
7
https://www.atf.gov/file/55466/download.
14
barrels, stocks, or trigger mechanisms to firearms," as well as "any person engaged in the
business of selling firearms at wholesale or retail."
15
ATF Rul. 2010-10:8
Dealer-Gunsmith May Work on Firearms for a Manufacturer
[A]ny person licensed as a dealer-gunsmith who repairs, modifies, embellishes, refurbishes, or

installs parts in or on firearms (frames, receivers, or otherwise) for, or on behalf of a licensed
importer or licensed manufacturer, is not required to be licensed as a manufacturer under the
Gun Control Act, provided the firearms for which such services are rendered are: (1) not owned,
in whole or in part, by the dealer-gunsmith; (2) returned by the dealer-gunsmith to the importer
or manufacturer upon completion of the manufacturing processes, and not sold or distributed to
any person outside the manufacturing process; and (3) already properly identified/marked by the
importer or manufacturer in accordance with Federal law and regulations.
To facilitate inspection and ensure that ATF can determine that a licensed dealer-gunsmith is not
engaged in the business of manufacturing firearms for his own sale or distribution without a
manufacturer's license, licensees may take the following steps:
(1) maintain a copy of the current, active license of all contracted licensees;
(2) maintain a copy of the contract and all instructions for gunsmithing services rendered;
(3) maintain a copy of the invoices for gunsmithing services;
(4) timely and accurately reflect all firearms acquisitions and dispositions consistent with the
contract for gunsmithing services rendered; and
(5) in the case of a licensed dealer-gunsmith, maintain required bound acquisition and
disposition records for all gunsmithing activities separate from other dealer's records.
Unless licensees take these steps, ATF may presume that a particular dealer-gunsmith is engaged
in his own business of manufacturing firearms for sale or distribution without a manufacturer's
license, and take corrective administrative or other enforcement action.
Halbrook comments
However, administrative and enforcement action, such as license revocation or criminal

prosecution, must be based on violation of the statute or regulations, not a mere ruling. Copies of
licenses, contracts, instructions, and invoices are not records required to be kept by the statute or
regulations and are not subject to ATF inspection.
8
https://www.atf.gov/firearms/docs/ruling/2010-10-manufacturing-operations-maybe-perf
ormed-licensed-gunsmiths-under/download.
16
ATF Ruling 2015-1:9
Providing Equipment to Work on Blanks is Manufacture
ATF Ruling 2015-1 opines that a manufacturer's license is required for a person "engaged
in the business of performing machining, molding, casting, forging, printing (additive
manufacturing) or other manufacturing process to create a firearm frame or receiver, or to make
a frame or receiver suitable for use as part of a 'weapon ... which will or is designed to or may
readily be converted to expel a projectile by the action of an explosive,' …." That applies to a
business that allows others "to perform manufacturing processes on blanks or incomplete
firearms (including frames or receivers) using machinery, tools, or equipment under its dominion
and control …."
The ruling states that a person may obtain castings or machined/molded or other
manufactured bodies (aka "blanks" or "80% receivers") and perform minor drilling and
machining activities in or on the fire control area or other critical areas sufficient to create a
frame or receiver. However, "it generally requires substantial additional machining before it can
accommodate fire control components such as a trigger, hammer, or sear and be used to expel
projectiles." That raises the issue of how it can be considered to be a frame or receiver under
ATF's own definition: "That part of a firearm which provides housing for the hammer, bolt or
breechblock, and firing mechanism, and which is usually threaded at its forward portion to
receive the barrel." The term "provides" is in the present tense, and does not refer to future
operations that make it capable of so providing.
That issue arises regarding the ruling's example of an AR-15 type receiver that is
machined with common power tools to be an alleged frame or receiver, "yet incapable of being
assembled into a weapon that will expel projectiles." The ruling adds that a person may take a
blank or such "frame or receiver" to a licensed dealer-gunsmith or machine shop, which would
use its own equipment, such as a Computer Numeric Controlled (CNC) machine, to make an
actual frame or receiver capable of use in a weapon. The ruling distinguishes ATF Ruling
2010-10, which opined that a licensed gunsmith may conduct manufacturing operations on an
already-marked firearm it does not own for a manufacturer or importer, to which it is returned.
Such activity could include "specialized finishing of functional frames or receivers" that are
already suitable for use in assembly of a weapon.
ATF Ruling 2015-1 next states that "manufacturing" includes the machining of a blank
into a frame or receiver or of "taking any of the steps to make an existing frame or receiver
functional." For an AR-type firearm, that includes removal of material from the cavity so that
fire-control components may be installed. The ruling adds that "when a licensed gunsmith takes
in a frame or receiver to perform machining or other manufacturing process, that gunsmith
9
https://www.atf.gov/firearms/docs/ruling/2015-1-manufacturing-and-gunsmithing/downloadhttp
s://www.atf.gov/file/11711/download.
17
'distributes' a firearm to the customer upon return because that manufacturing activity results in
the making of a different 'frame or receiver' and also a 'weapon ... which will or is designed to or
may readily be converted to expel a projectile' …." That is a break with ATF's longstanding view
that a gunsmith who works on a customer's firearm (which includes a frame or receiver) and then
returns it to the very same customer has not engaged in "distribution" of a firearm.
Finally, the ruling includes within its scope the mere making available by a gunsmith or
machine shop of its machinery, tools, or equipment, and the providing of instruction, to a person
to use to make an operable firearm from raw materials, blanks, unfinished frames or receivers
and/or other firearm parts. Even though the customer provides the material and manipulates the
machine or other equipment to make the firearm, the ruling asserts that the entity that provides
the machinery is a manufacturer who has "distributed" a firearm to the customer and who thus
must be licensed as such, keep the required records, and mark the firearm. This is an
unprecedented expansion of what it means to engage in the business of manufacturing firearms.
18
Prohibition on Improper Guidance Documents
Memorandum Signed by Attorney General Jeff Sessions, Nov. 16, 2017.10

(Excerpts)
. . . These principles and rules include the fundamental requirement that agencies regulate only
within the authority delegated to them by Congress. They also include the Administrative
Procedure Act's requirement to use, in most cases, notice-and-comment rulemaking when
purporting to create rights or obligations binding on members of the public or the agency.
But guidance may not be used as a substitute for rulemaking and may not be used to
impose new requirements on entities outside the Executive Branch. Nor should guidance create
binding standards by which the Department will determine compliance with existing regulatory
or statutory requirements.
It has come to my attention that the Department has in the past published guidance
documents or similar instruments of future effect by other names, such as letters to regulated
entities that effectively bind private parties without undergoing the rulemaking process.
The Department will no longer engage in this practice. Effective immediately, Department
components may not issue guidance documents that purport to create rights or obligations
binding on persons or entities outside the Executive Branch (including state, local, and tribal
governments). To avoid circumventing the rulemaking process, Department components should
adhere to the following principles when issuing guidance documents:
• Guidance documents should identify themselves as guidance, disclaim any force or

effect of law, and avoid language suggesting that the public has obligations that go beyond those
set forth in the applicable statutes or legislative rules.
• Guidance documents should clearly state that they are not final agency actions, have no
legally binding effect on persons or entities outside the federal government, and may be
rescinded or modified in the Department's complete discretion.
• Guidance documents should not be used for the purpose of coercing persons or entities
outside the federal government into taking any action or refraining from taking any action
beyond what is required by the terms of the applicable statute or regulation.
• Guidance documents should not use mandatory language such as “shall,” “must,”
“required,” or “requirement” to direct parties outside the federal government to take or refrain
from taking action, except when restating – with citations to statutes, regulations, or binding
judicial precedent – clear mandates contained in a statute or regulation. In all cases, guidance
documents should clearly identify the underlying law that they are explaining.
10
https://www.justice.gov/opa/press-release/file/1012271/download.
19
• To the extent guidance documents set out voluntary standards (e.g., recommended
practices), they should clearly state that compliance with those standards is voluntary and that
noncompliance will not, in itself, result in any enforcement action.
20
Firearm marking requirements
Federally-licensed firearm manufacturers and importers are required to mark firearms

with serial numbers and other identifying marks. A firearm made by a person who is not a
licensed manufacturer or importer is not required to be marked. The only exception is that a
firearm as defined by the National Firearms Act is required to be marked regardless of the status
of the maker. 26 U.S.C. §5842(a).
The general statutory requirement is set forth in 18 U.S.C. §923(i) as follows: “Licensed
importers and licensed manufacturers shall identify, by means of a serial number engraved or
cast on the receiver or frame of the weapon, in such manner as the Attorney General shall by
regulations prescribe, each firearm imported or manufactured by such importer or manufacturer.”
It is an offense to destroy the manufacturer's serial number, although the statute does not
explicitly make it a crime to destroy the other markings. Section 922(k) provides: “It shall be
unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign
commerce, any firearm which has had the importer's or manufacturer's serial number removed,
obliterated, or altered or to possess or receive any firearm which has had the importer's or
manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped
or transported in interstate or foreign commerce.”
ATF maintains that any entity that alters or works on a firearm must obtain a
manufacturer's license. Since several firms may do so--e.g., one firm makes the receiver, others
install or fit certain parts, and yet another does the bluing--potentially multiple "manufacturers"
would all be required to put their markings on each firearm. To avoid this rather absurd
consequence of considering all such firms to be manufacturers, ATF grants variances which
waive marking requirements for specific licensees in the process. See ATF, Guide to Requesting
Marking Variances (2008).11
11
https://www.atf.gov/resource-center/docs/marking-variancespdf/download.
21
II. STATE PROHIBITIONS ON MATERIAL FOR
AND MAKING OF UNMARKED FIREARMS
California
Cal. Penal Code § 29180

§ 29180. Manufacture or assembly of firearm; application for unique serial number or mark of
identification; affixing number or mark to the firearm; requirements for firearms without a serial
number; prohibitions and penalties
(a) For purposes of this chapter, “manufacturing” or “assembling” a firearm means to fabricate
or construct a firearm, or to fit together the component parts of a firearm to construct a firearm.
(b) Commencing July 1, 2018, prior to manufacturing or assembling a firearm, a person
manufacturing or assembling the firearm shall do all of the following:
(1) Apply to the Department of Justice for a unique serial number or other mark of identification
pursuant to Section 29182.
(2)(A) Within 10 days of manufacturing or assembling a firearm in accordance with paragraph
(1), the unique serial number or other mark of identification provided by the department shall be
engraved or permanently affixed to the firearm in a manner that meets or exceeds the
requirements imposed on licensed importers and licensed manufacturers of firearms pursuant to
subsection (i) of Section 923 of Title 18 of the United States Code and regulations issued
pursuant thereto.
(B) If the firearm is manufactured or assembled from polymer plastic, 3.7 ounces of material
type 17-4 PH stainless steel shall be embedded within the plastic upon fabrication or
construction with the unique serial number engraved or otherwise permanently affixed in a
manner that meets or exceeds the requirements imposed on licensed importers and licensed
manufacturers of firearms pursuant to subsection (i) of Section 923 of Title 18 of the United
States Code and regulations issued pursuant thereto.
(3) After the serial number provided by the department is engraved or otherwise permanently
affixed to the firearm, the person shall notify the department of that fact in a manner and within a
time period specified by the department, and with sufficient information to identify the owner of
the firearm, the unique serial number or mark of identification provided by the department, and
the firearm in a manner prescribed by the department.
(c) By January 1, 2019, any person who, as of July 1, 2018, owns a firearm that does not bear a
serial number assigned to it pursuant to either Section 23910 or Chapter 44 (commencing with
Section 921) of Part 1 of Title 18 of the United States Code and the regulations issued pursuant
thereto, shall do all of the following:
(1) Apply to the Department of Justice for a unique serial number or other mark of identification
pursuant to Section 29182.
(2) Within 10 days of receiving a unique serial number or other mark of identification from the
department, the unique serial number or other mark of identification provided by the department
shall be engraved or permanently affixed to the firearm in accordance with regulations
prescribed by the department pursuant to Section 29182 and in a manner that meets or exceeds
the requirements imposed on licensed importers and licensed manufacturers of firearms pursuant
to subsection (i) of Section 923 of Title 18 of the United States Code and regulations issued
22
pursuant thereto.
(3) After the serial number provided by the department is engraved or otherwise permanently
affixed to the firearm, the person shall notify the department of that fact in a manner and within a
time period specified by the department and with sufficient information to identify the owner of
the firearm, the unique serial number or mark of identification provided by the department, and
the firearm in a manner prescribed by the department.
(d)(1) The sale or transfer of ownership of a firearm manufactured or assembled pursuant to this
section is prohibited.
(2) Paragraph (1) does not apply to the transfer, surrender, or sale of a firearm to a law
enforcement agency.
(3) Any firearms confiscated by law enforcement that do not bear an engraved serial number or
other mark of identification pursuant to subdivision (b) or (c), or a firearm surrendered,
transferred, or sold to a law enforcement agency pursuant to paragraph (2) shall be destroyed as
provided in Section 18005.
(4) Sections 26500 and 27545, and subdivision (a) of Section 31615, do not apply to the transfer,
sale, or surrender of firearms to a law enforcement agency pursuant to paragraph (2).
(e) A new resident to the state shall apply for a unique serial number or other mark of
identification pursuant to Section 29182 within 60 days of arrival for any firearm the resident
wishes to possess in the state that the resident previously manufactured or assembled or a firearm
the resident owns, that does not have a unique serial number or other mark of identification.
(f) A person, corporation, or firm shall not knowingly allow, facilitate, aid, or abet the
manufacture or assembling of a firearm pursuant to this section by a person who is within any of
the classes identified by Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing
with Section 29900) of Division 9 of this code, or Section 8100 or 8103 of the Welfare and
Institutions Code.
(g) If the firearm is a handgun, a violation of this section is punishable by imprisonment in a
county jail not to exceed one year, or by a fine not to exceed one thousand dollars ($1,000), or by
both that fine and imprisonment. For all other firearms, a violation of this section is punishable
by imprisonment in a county jail not to exceed six months, or by a fine not to exceed one
thousand dollars ($1,000), or by both that fine and imprisonment. Each firearm found to be in
violation of this section constitutes a distinct and separate offense. This section does not preclude
prosecution under any other law providing for a greater penalty.
New Jersey
N.J.S. 2C:39-9
k. Purchasing firearm parts to manufacture a firearm without a serial number. In addition
to any other criminal penalties provided under law, a person who, with the purpose to
manufacture or otherwise assemble a firearm and without being registered or licensed do so as
provided in chapter 58 of Title 2C of the New Jersey Statutes, purchases or otherwise obtains
separately or as part of a kit a firearm frame or firearm receiver which is not imprinted with a
serial number registered with a federally licensed manufacturer or any combination of parts from
which a firearm without a serial number may be readily manufactured or otherwise assembled,
but which does not have the capacity to function as a firearm unless manufactured or otherwise
23
assembled is guilty of a crime of the third degree. Notwithstanding the provisions of
N.J.S.2C:1-8 or any other law, a conviction under this subsection shall not merge with a
conviction for any other criminal offense and the court shall impose separate sentences upon a
violation of this subsection and any other criminal offense.
As used in this subsection, “firearm frame or firearm receiver” means the part of a
firearm that provides housing for the firearm's internal components, such as the hammer, bolt or
breechblock, action, and firing mechanism, and includes without limitation any object or part
which is not a firearm frame or receiver in finished form but is designed or intended to be used
for that purpose and which may readily be made into a firearm frame or receiver through milling
or other means.
24
III. 3D PRINTED FIREARMS
International Traffic in Arms Regulations (ITAR)
22 C.F.R. §121.1. Munitions List.
Category I--Firearms, Close Assault Weapons and Combat Shotguns

(a) Nonautomatic and semi-automatic firearms to caliber .50 inclusive (12.7 mm).
(b) Fully automatic firearms to .50 caliber inclusive (12.7 mm).
(c) Firearms or other weapons (e.g. insurgency-counterinsurgency, close assault weapons
systems) having a special military application regardless of caliber.
(d) Combat shotguns. This includes any shotgun with a barrel length less than 18 inches.
(e) Silencers, mufflers, sound and flash suppressors for the articles in (a) through (d) of
this category and their specifically designed, modified or adapted components and parts.
(f) Riflescopes manufactured to military specifications (See category XII(c) for controls
on night sighting devices.)
(g) Barrels, cylinders, receivers (frames) or complete breech mechanisms for the articles
in paragraphs (a) through (d) of this category.
(h) Components, parts, accessories and attachments for the articles in paragraphs (a)
through (g) of this category.
(i) Technical data (as defined in §120.10 of this subchapter) and defense services (as
defined in §120.9 of this subchapter) directly related to the defense articles enumerated in
paragraphs (a) through (h) of this category. Technical data directly related to the manufacture or
production of any defense articles enumerated elsewhere in this category that are designated as
Significant Military Equipment (SME) shall itself be designated SME.
Technical data means, for purposes of this subchapter: 22 C.F.R. §120.10(a).

(1) Information, other than software as defined in §120.10(a)(4), which is required for the
design, development, production, manufacture, assembly, operation, repair, testing, maintenance
or modification of defense articles. This includes information in the form of blueprints,
drawings, photographs, plans, instructions or documentation.
(2) Classified information relating to defense articles and defense services;
(3) Information covered by an invention secrecy order;
(4) Software as defined in §121.8(f) of this subchapter directly related to defense articles;
(5) This definition does not include information concerning general scientific,
mathematical or engineering principles commonly taught in schools, colleges and universities or
information in the public domain as defined in §120.11. It also does not include basic marketing
information on function or purpose or general system descriptions of defense articles.15
22 C.F.R. §120.11(a). Public Domain
Public domain means information which is published and which is generally accessible or
available to the public:
(1) Through sales at newsstands and bookstores;
25
(2) Through subscriptions which are available without restriction to any individual who
desires to obtain or purchase the published information;
(3) Through second class mailing privileges granted by the U.S. Government;
(4) At libraries open to the public or from which the public can obtain documents;
(5) Through patents available at any patent office;
(6) Through unlimited distribution at a conference, meeting, seminar, trade show or
exhibition, generally accessible to the public, in the United States;
(7) Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily
in published form) after approval by the cognizant U.S. government department or agency (see
also §125.4(b)(13) of this subchapter);
(8) Through fundamental research in science and engineering at accredited institutions of higher
learning in the U.S. where the resulting information is ordinarily published and shared broadly in
the scientific community.
Defense Distributed v. U.S. Department of State
Relying on the national defense and national security, the Fifth Circuit upheld the denial
of a preliminary injunction on public-interest and balance-of-harm grounds in a challenge to a
State Department opinion that posting technical data of 3D printing and CNC milling files for
the construction of gun parts on the internet constitutes an unlawful export of such data. Defense
Distributed v. United States Department of State, 838 F.3d 451 (5th Cir. 2016), reh. en banc
denied, 865 F.3d 211 (5th Cir. 2017). The dissenting opinion would have found the injunction
warranted on First Amendment grounds, noting that the government was censoring "unclassified,
lawful technical data about guns, which will impair discussion about a large swath of
unclassified information about firearms and inhibit amateur gunsmiths as well as journalists."
838 F.3d at 476 (Jones, J., dissenting).
A settlement agreement in the case was entered into after publication of proposed
rulemaking of transfer of export regulation of civilian firearms from the Department of State to
the Department of Commerce, under which export of the subject technology would not be
restricted.12 The technical data at issue was approved for public release under existing
regulations.13 No liability was admitted, although the government agreed to pay the plaintiffs
$39,381 in exchange for dismissal of the lawsuit with prejudice.
Defense Distributed v. Gurbir Grewal, Attorney General of New Jersey
12
Settlement Agreement, Defense Distributed v. U.S. Department of State, June 29, 2018.
https://www.exportlawblog.com/docs/Defense%20Distributed%20Settlement%20Agreement.pdf
(visited July 17, 2018.)
13
See 22 C.F.R. § 125.4(b)(13).
26
Complaint (D. N.J., excerpts14)
1. Defense Distributed promotes the Second Amendment’s individual right to keep and
bear Arms by publishing digital firearms information. The digital firearms information that
Defense Distributed publishes constitutes an important expression of technical, scientific,
artistic, and political matter. It lies at the heart of both the First Amendment and Second
Amendment. It belongs in the public domain.
3. Attorney General Gurbir Grewal denies any right to share computer files containing
digital firearms information. He denies any right to do so via the internet, the mail, or any other
publication method. But Grewal does not just deny these rights abstractly. He blatantly abridges
them in violation of the Constitution.
4. With a torrent of civil and criminal enforcement actions, Grewal is conducting a

censorship campaign that expressly targets Defense Distributed’s publication of digital firearms
information and expressly targets its audience. If anyone dares to share the information deemed
illicit, Grewal swears that he “will come after you." This state official wants so desperately to
abridge the Second Amendment's right to bear Arms that he will do so by blatantly abridging the
First Amendment's freedom of speech.
49. On July 26, 2018, Grewal issued Defense Distributed a formal ceaseand-desist letter.
A copy is attached to this complaint as Exhibit D.
50. Grewal's July 26, 2018, cease-and-desist letter commanded Defense Distributed to
cease publishing its digital firearms information: "You are directed to cease and desist from
publishing printable-gun computer files for use by New Jersey residents." It repeatedly declared
Defense Distributed's publication of digital firearms information to be a violation of New Jersey
law. It said that publication "violates New Jersey's public nuisance and negligence laws." . . . It
ended by delivering another command backed by a threat of punishment: "As the chief law
enforcement officer for New Jersey, I demand that you halt publication of the printable-gun
computer files. Should you fail to comply with this letter, my Office will initiate legal action
barring you from publishing these files before August 1, 2018."
14
https://www.courthousenews.com/wp-content/uploads/2019/02/guns.pdf.
27
Legislation
Federal Bills
H.R. 6649, 2017 CONG US HR 6649 (August 3, 2018)
Mr. Deutch (for himself, Ms. Wasserman Schultz, Mr. Schneider, and Mrs. Carolyn B. Maloney
of New York) introduced the following bill; which was referred to the Committee on the
Judiciary
SECTION 1. SHORT TITLE.
This Act may be cited as the '3D Printed Gun Safety Act of 2018'.
SEC. 2. FINDINGS. . . .
SEC. 3. PROHIBITION.
Section 922 of title 18, United States Code, is amended by adding at the end the following:
'(aa) It shall be unlawful for any person to intentionally publish, over the Internet or by means of
the World Wide Web, digital instructions in the form of Computer Aided Design files or other
code that can automatically program a 3-dimensional printer or similar device to produce a
firearm or complete a firearm from an unfinished frame or receiver.'.
S 3304, 2017 CONG US S 3304 (July 31, 2018)
Mr. Nelson (for himself, Mr. Schumer, Mrs. Feinstein, Mr. Blumenthal, Mr. Markey, Mr.
Menendez, Mr. Van Hollen, Mr. Brown, Ms. Klobuchar, Mrs. Murray, Mr. Murphy, Mr. Reed,
Mr. Booker, Mr. Schatz, Mr. Casey, Ms. Hirono, Mr. Kaine, Mrs. Gillibrand, Ms. Harris, Mr.
Leahy, Mr. Carper, Ms. Smith, Ms. Baldwin, Mr. Sanders, Mr. Whitehouse, Ms. Warren, Ms.
Duckworth, Mr. Coons, Ms. Hassan, Mr. Merkley, and Mr. Cardin) introduced the following
bill; which was read twice and referred to the Committee on the Judiciary
[same language as above]
New Jersey
N.J.S. 2C:39-9. Manufacture, transport, disposition and defacement of weapons and dangerous
instruments and appliances
l. Manufacturing or facilitating the manufacture of a firearm using a three-dimensional printer. In
addition to any other criminal penalties provided under law it is a third degree crime for:
(1) a person who is not registered or licensed to do so as a manufacturer as provided in chapter
58 of Title 2C of the New Jersey Statutes, to use a three-dimensional printer or similar device to
manufacture or produce a firearm, firearm receiver, magazine, or firearm component; or
(2) a person to distribute by any means, including the Internet, to a person in New Jersey who is
not registered or licensed as a manufacturer as provided in chapter 58 of Title 2C of the New
Jersey Statutes, digital instructions in the form of computer-aided design files or other code or
instructions stored and displayed in electronic format as a digital model that may be used to
program a three-dimensional printer to manufacture or produce a firearm, firearm receiver,
magazine, or firearm component.
28
As used in this subsection: “three-dimensional printer” means a computer or computer-driven
machine or device capable of producing a three-dimensional object from a digital model; and
“distribute” means to sell, or to manufacture, give, provide, lend, trade, mail, deliver, publish,
circulate, disseminate, present, exhibit, display, share, advertise, offer, or make available via the
Internet or by any other means, whether for pecuniary gain or not, and includes an agreement or
attempt to distribute.
m. Covert or undetectable firearms. Any person who manufactures, causes to be manufactured,
transports, ships, sells or disposes of any covert firearm as defined in subsection hh. of
N.J.S.2C:39-1 or any undetectable firearm as defined in subsection ii. of N.J.S.2C:39-1 is guilty
of a crime of the third degree.
29
Are “80%” or “unfinished” receivers illegal? | Bureau of Alcohol, Tobacco, Firearms a... https://www.atf.gov/firearms/qa/are-“80”-or-“unfinished”-receivers-illegal
1 of 2 2/15/2019, 3:07 PM
Section Six
Michael Jean
Shooting ranges and the noise
and environmental issues they
face
Michael Jean
Associate Litigation Counsel
National Rifle Association of America – Institute for Legislative Action
Overview
• Common-law nuisance
• Range Protection Acts
• Federal environmental statutes
Common-Law Nuisance
Nuisance Per Se v Nuisance In Fact
• “A nuisance per se … is a nuisance in itself,” such as a “house of
prostitution.” It is a question of law.
• A nuisance in fact becomes a nuisance by virtue of the
surrounding circumstances. It is a question of fact.
• “[A] range is an otherwise lawful use that may become a
nuisance [in fact] depending upon the circumstances.”
Yates v. Kemp, 979 N.E.2d 678, 683-84 (Ind. Ct. App. 2012) (citations omitted).
Common-Law Standard
• The noise must cause “actual physical discomfort to persons of
ordinary sensibilities.”
Smith v. W. Wayne Cty. Conservation Ass’n, 158 N.W.2d 463, 468, 470 (Mich. 1968);
Yates, 979 N.E.2d at 682–83 (Indiana only requires a showing of “inconvenience,
annoyance, or discomfort. Noise may be a nuisance if it is unreasonable in its degree.”).
• Courts consider “the character, volume, time[, location] and
duration of the noise and ‘all the facts and circumstances of the
case.’”
Id.; see also Traetto v. Palazzo, 91 A.3d 29, 33-34 (N.J. Super. Ct. App. Div. 2014).
• ‘‘‘The time and locality [are] given the greatest consideration.’’’
Id.
Ranges are rural in nature
• “[T]he more residential the area, the less noise is tolerable.”
Id.
• “[F]irearm ranges … by their nature are almost exclusively
situated in rural areas.”
Miller v. Hill, 785 N.E.2d 532, 544 (Ill. Ap. Ct. 2003).
Other Considerations
• What is area zoned for? Agricultural? Commercial? Residential?
• Is hunting allowed in the area?
• How frequent are competitions held at the range?
Smith, 158 N.W.2d at 471
• The MI Supreme Court held that a range in (1) an area zoned for
agricultural use, (2) where hunting takes place, and (3) only held
competitions a few times a year was not a nuisance.
Id.
Full-Auto Rule
• “Regardless of the frequency or location, automatic weapon fire
on a neighbor’s land would cause discomfort or annoyance to an
ordinary reasonable person.”
Kolstad v. Rankin, 534 N.E.2d 1373, 1380 (Ill. Ap. Ct. 1989).
Suburban Sprawl and Range
Protection Acts
Changing Landscapes
• Historically ranges have always operated in less populated areas.
• Suburban sprawl changed the landscape by bringing more
people to those areas who, in turn, brought nuisance claims.
• The states responded by passing range protection acts that
limited range liability for noise.
David G. Cotter, Shooting Sports Versus Suburban Sprawl—Is Peaceful Coexistence
Possible? 15 T.M. Cooley L. Rev. 21 (1998).
Coming-to-the-Nuisance Doctrine
• Can you bring a nuisance claim if you moved to next to a pre-
existing range under common law?
• Jurisdictions are split on this.
• Some say it is not a defense or estoppel.
• Some say “it is one of the factors considered in determining
whether or not a nuisance exists.”
Jerry Harmon Motors, Inc. v. Farmers Union Grain Terminal Ass’n, 337 N.W.2d 427,
431 (N.D. 1983) (citing 42 A.L.R.3d 344 (Originally published in 1972)); see also
Cheboygan Sportsman Club v. Cheboygan Cty. Prosecuting Attorney, 858 N.W.2d
751, 758 (Mich. Ct. App. 2014).
Components to Range Statutes
• (1) Must meet the statutory definition of a range; and
• (2) Must comply with the statutory standards or be
grandfathered in.
• If so, then the range is protected from noise-based nuisance
actions.
See chart of Range Statutes; See also Cheboygan Sportsman Club, 858 N.W.2d at 754
(statute protects from noise-based actions).
Statutory Definition of Range
• It is generally the use of the property that matters.
• “[B]ecause MCL 691.1541(d) defines a ‘sport shooting range’ as
‘an area designed and operated for the use of ’ various sport
shooting activities, a shooting range owner’s commercial
purpose for operating a shooting range is irrelevant.”
Addison Twp. v. Barnhart, 845 N.W.2d 88, 92 (Mich. 2014).
Compliance with Statutory Standards
• New noise and safety standards put in place in the statute; or
• Must be in compliance with local noise ordinances by a certain
time.
The NRA Range Sourcebook
• Some states adopt provisions of the NRA Range Sourcebook as their
safety standards.
See, e.g., Mich. Comp. Laws Ann. § 691.1541(a).
• The 2012 edition of the Sourcebook is 627 pages.
• But courts have construed the Sourcebook as “discretionary” and
“advisory.”
Addison Twp., 845 N.W.2d at, 94.
• “[F]failure to comply with every provision of the [Sourcebook] does
not effectively refute the evidence that defendant’s shooting range
was in compliance with the [sourcebook].”
Id.
Other Noise Standards
• Arizona law requires the
range to measure the sound
at peak time—20 feet from
the nearest residence.
• The sound must be less than
64 decibels.
Ariz. Rev. Stat. Ann. § 17-602
Being in Compliance with Local
Ordinances at a Specific Date
• What if there are no ordinances?
• Two courts have said that you cannot be in compliance with local
noise/zoning ordinances when there aren’t any.
Gray v. Barnhart, 601 A.2d 924 (Pa. Commw. Ct. 1992); Yates, 979 N.E.2d 678 (Both
abrogated by statute 1998 Pa. Legis. Serv. Act 1998-130 (S.B. 56) 2013 Ind. Legis. Serv.
P.L. 289-2013 (H.E.A. 1563)).
• Two courts have said that you are in compliance when there are
no local ordinances.
Jenkins v. Clayton, 542 SE.2d 503 (Ga. 2001); Sara Reality, LLC v. Country Pond Fish &
Game Club, Inc., 972 A.2d 1038 (N.H. 2009).
Certain-Remedy challenges
• ‘“Every person shall find a certain remedy in the laws for all
injuries and wrongs which he receives….”’
Miller, 785 N.E.2d at 542–43 (quoting Ill. Const.1970, art. I, § 12)
• Ranges protection statutes have withstood certain-remedy
challenges because they only limit noise-based actions, not all
actions against ranges.
Id.
Environmental Statutes
Overview
• Background on Environmental Law
• Toxic Substances Control Act (TSCA)
• Clean Water Act (CWA)
• Resource Conservation and Recovery Act (RCRA)
• Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA or Superfund)
• State Statutes
Background on Federal Environmental
Statutes
• Environmental law has its origins in common-law public
nuisance.
See, e.g., Missouri v. Illinois, 200 U.S. 496 (1906) (Missouri alleged that Illinois was
polluting its water to the point that it was causing typhoid outbreaks downstream in
Missouri.).
• States were hesitant to pass their own environmental statutes
because they didn’t want to hinder their agricultural and
manufacturing industries.
• After a few environmental catastrophes, Congress passed
legislation. (The Clean Water Act was passed in response to the
Cuyahoga River catching on fire.)
Aspects of Environmental Statutes
• Purpose of the statute
• What triggers the statute/elements
• Key definitions
• Exemptions and defenses
• Prohibitions and Liabilities
Toxic Substances Control Act
(TSCA)
15 U.S.C. §§ 2601-2629
TSCA’s Purpose
• “The overall purpose of the Toxic Substances Control Act was to
… protect humans and the environment from the dangers of
toxic substances.”
Rollins Envtl. Servs. (FS), Inc. v. St. James Par., 775 F.2d 627, 632 (5th Cir. 1985); Envtl. Def.
Fund, Inc. v. Envtl. Prot. Agency, 636 F.2d 1267, 1271 (D.C. Cir. 1980) (TSCA “is generally
designed to cover the regulation of all chemical substances.”).
Triggering TSCA
• There must be (1) a “chemical substance”
• (2) that the EPA “has a ‘reasonable basis to conclude presents or
will present an unreasonable risk of injury to health or the
environment.”’
Trumpeter Swan Soc. v. E.P.A., 774 F.3d 1037, 1039 (D.C. Cir. 2014) (quoting 26 U.S.C. §
2605(a)).
• Once TSCA is triggered, the EPA can promulgate rules regulating
the manufacture and use of the chemical substance.
26 U.S.C. § 2605(a).
TSCA’s Key Definition
• “Chemical substance” has a broad definition, but cartridges and
shells are exempt.
15 U.S.C. § 2602(2)(v).
Spent Lead
• Lead cannot pose a threat to the environment until it enters the
environment. The ammunition must be spent (or escape through
the manufacturing process).
• “Given that bullets and shot can become ‘spent ’ only if they are
first contained in a cartridge or shell and then fired from a
weapon, petitioners have identified no way in which EPA could
regulate spent bullets and shot without also regulating cartridges
and shells—precisely what section 3(2)(B)(v) prohibits.”
Trumpeter Swan Soc., 774 F.3d at 1043 (holding that the EPA lacks jurisdiction to
regulate cartridges and shells under TSCA).
The Clean Water Act
(CWA)
33 U.S.C. §§ 1251-1387
CWA’s Purpose
• “The objective of [the CWA] is to restore and maintain the
chemical, physical, and biological integrity of the Nation’s
waters.”
33 U.S.C. § 1251(a).
CWA Elements
• The CWA prohibits discharging pollutants into navigable waters
from a point source without a National Pollutant Discharge
Elimination System (NPDES) permit.
Simsbury-Avon Preservation Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 215 (2d.
Cir. 2009); see also Potomac Riverkeeper, Inc. v. National Capital Skeet and Trap Club, 288
F. Supp. 2d. 582, 585 (D. Md. 2005) (all citations omitted).
Discharge of Any Pollutant
• “The term ‘discharge of a pollutant’ … means (A) any addition of
any pollutant to navigable waters from any point source….”
33 U.S.C. § 1362(12) (emphasis added).
• “Munitions” are one of many items listed in the statutory
definition of “pollutant.”
33 U.S.C. § 1362(6); Metacon Gun Club, Inc., 575 F.3d at 215.
Navigable Waters
• “The term ‘navigable waters’ means the waters of the United
States, including the territorial seas.”
33 U.S.C. § 1362(7).
• Waters of the United States include navigable waters and their
tributaries.
Benjamin v. Douglas Ridge Rifle Club, 673 F. Supp. 2d 1210, 1215 (D. Or. 2009) (citation
omitted); see also The Daniel Ball, 77 U.S. 557, 563 (1870) (Navigable waters “are
susceptible of being used, in their ordinary condition, as highways for commerce.”).
• It does not include waters that have been filled with CWA
permits from the Army Corps of Engineers.
Metacon Gun Club, Inc., 575 F.3d 199 at 217.
Adjacent Wetlands
• SCOTUS has had a hard time trying to determine if wetlands are
“waters of the United States”: it went 4-1-4 in Rapanos v. United
States, 547 U.S. 715 (2006), with Justice Kennedy issuing a
concurring opinion.
Kennedy’s concurrence in Rapanos is
controlling
• When SCOTUS cannot from a majority, the ‘“holding ... [is the]
position taken by those Members who concurred in the
judgments on the narrowest grounds.”’
United States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007) (joining the Seventh and
Ninth Circuits in adopting Kennedy’s concurrence in Rapanos).
Kennedy’s Significant Nexus Test
• “[T]o constitute “‘navigable waters’” under the Act, a water or
wetland must possess a ‘significant nexus’ to waters that are or
were navigable in fact or that could reasonably be so made.”
Rapanos, 547 U.S. at 759 (2006) (Kennedy, J. concurring).
• A wetland has a “significant nexus” if, ‘“either alone or in

combination with similarly situated lands in the region, it
significantly affects the chemical, physical, and biological
integrity of other covered waters more readily understood as
“navigable.”’”
Robison, 505 F.3d at 1218.
Waters of the U.S. Regulatory Definition
• The EPA and Army Corps of Engineers are currently in the
process of repealing the 2015 regulatory definition of waters of
the United States and returning to the pre-2015 definition.
See Proposed Rule 82 Fed. Reg. 34899 (July 27, 2017); see also 33 C.F.R. § 328.3(a)
(Corps definition); 40 C.R.R. § 240.3(o) (EPA definition).
Point Source
• “The term ‘point source’ means any discernible, confined and
discrete conveyance, including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure, container, rolling
stock, concentrated animal feeding operation, or vessel or other
floating craft, from which pollutants are or may be discharged.”
33 U.S.C. § 1362(14) (emphasis added).
Shooting Ranges Are Point Sources
• “The whole purpose of the [range] is to ‘discharge pollutants’
[i.e., munitions] and shattered clay targets. In fact, within the
shotfall zone, no other activity occurs. Furthermore, the facility
is certainty ‘discernible, confined and discrete.”’
Stone v. Naperville Park Dist., 38 F. Supp. 2d 651, 655 (N.D. Ill. 1999).
Humans Are Not Point Sources
• First, the statute lists several “physical structures” that don’t
resemble humans.
• Second, the statute’s definition of point source would be
meaningless if it were interpreted so broadly to include humans.
United States v. Plaza Health Labs., Inc., 3 F.3d 643, 646 (2d Cir. 1993).
• Nonpoint-source discharges are subject to state regulation.
Metacon Gun Club, Inc., 575 F.3d at 219-20; see also 33 U.S.C § 1329.
Nonpoint-Source Runoff
• Runoff that enters waters is generally considered a nonpoint
source discharge.
Metacon Gun Club, Inc., 575 F.3d at 220.
• But “surface runoff, which is collected or channeled by man” is
discharge from a point source.
40 C.F.R. § 122.2.
• A backstop could be a point source if ammo is escaping and
entering waters.
Metacon Gun Club, Inc., 575 F.3d at 222-24.
NPDES Permits
• The EPA and most state environmental agencies issue NPDES
permits.
33 U.S.C. § 1342(a)-(b).
• NPDES permits set “effluent limitations,” which are restrictions
on the quantity or rate that pollutants can be discharged from
point sources into waters of the U.S.
33 U.S.C. §§ 1311, 1362(11).
CWA Exemptions
• There must be “a ‘state of ether continues or intermittent violation’ of
the [CWA].’” Actions cannot be brought for ‘“wholly past’ violations.”
Connecticut Coastal Fishermen’s Ass’n v. Remington Arms Co., Inc., 989 F.2d 1305, 1311 (2d
Cir. 1993).
• A range that was permanently closed and removed all of its equipment was
exempt under the CWA.
Id. at 1312.
• A range on Maryland DNR property that was closed until the DNR could certify
that it was in compliance with the CWA was exempt.
Potomac Riverkeeper, Inc., 388 F. Supp. 2d at 585.
• But an Illinois court found that voluntary succession of shooting activities
during the NPDES permit-application process was not enough to avoid an
injunction.
Stone v. Naperville Park Dist., 38 F. Supp. 2d 651, 656 (N.D. Ill. 1999).
CWA Civil Liabilities
• The CWA “does not dictate injunctive relief for any violation of
its permit provisions.”
• “Instead, Congress envisioned courts exercising equitable
discretion ‘to order that relief it considers necessary to secure
prompt compliance with the act.”’
Stone, 38 F. Supp. 2d at 656.
CWA Criminal Penalties
• First-time knowing offenders can get up to $50,000 “per day of
violation, or by imprisonment for not more than 3 years, or by
both.”
33 U.S.C. § 1319(c)(2).
• Negligent offenders get are punishable by up to half of those
figures.
33 U.S.C. § 1319(c)(1).
Resource Conservation and
Recovery Act
(RCRA)
42 U.S.C. §§ 6901-6992k
RCRA’s Purpose
• “RCRA’s primary purpose is to ‘reduce the generation of
hazardous waste and to ensure the proper treatment, storage,
and disposal of that waste … “to minimize the present and future
threat to human health and the environment.”’”
Benjamin v. Douglas Ridge Rifle Club, 673 F. Supp. 2d 1210, 1220-21 (D. Or. 2009) (quoting
Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996)).
• “RCRA establishes a ‘cradle-to-grave’ regulatory structure for the

treatment, storage and disposal of solid and hazardous wastes.”
Connecticut Coastal Fishermen’s Ass’n, 898 F.2d at 1313.
RCRA’s Regulatory Citizen-Suit Provision
• This allows suits against anyone “who is alleged to be in violation
of any permit, standard, regulation, condition, requirement,
prohibition, or order which has become effective pursuant to this
chapter.”
42 U.S.C. § 6972(a)(1)(A) (emphasis added). (This generally means the provisions in
RCRA Subtitle C, 42 U.S.C. §§ 6921-6939e. It has the same present-action requirement as
the CWA.)
• Because ranges don’t require permits and are outside the scope
of the regulatory definition of solid waste, a suit cannot be
brought under this provision.
Metacan Gun Club, Inc., 575 F.3d at 206-09 (affirming dismissal).
Imminent and Substantial
Endangerment Suits
• Citizens can also bring suit against any “contribut[or] to the past or
present … disposal of any solid or hazardous waste which may present
an imminent and substantial endangerment to health or the
environment.”
42 U.S.C. § 6972(a)(1)(b). This standard is “nearly identical” government enforcement actions
brought under 42 U.S.C. § 6973(a). Metacon Gun Club, Inc., 575 F.3d at 206.
• They can be brought against ‘“past or present’ RCRA offender.” But
“the endangerment must be ongoing.”
Connecticut Coastal Fishermen’s Ass’n 989 F.2d at 1316.
• This Section “became operative upon enactment without need for the
promulgation of regulations.”
United States v. Waste Indus., Inc., 734 F.2d 159, 168 (4th Cir. 1984).
Disposal
• “RCRA defines ‘disposal’ as the ‘discharge, deposit, or placing of
any solid … or hazardous waste into or on any land or water….”’
Metacan Gun Club, Inc., 575 F.3d at 210 (quoting 42 U.S.C. § 6903(3)).
• “Disposal is the affirmative act of disposing of a substance as
waste and not the productive use of the material.”
Benjamin, 673 F. Supp. 2d at 1221-22; but see Potomac Riverkeeper, Inc., 388 F. Supp. 2d
at 587 (‘“[D]isposal’ does not require ‘active human conduct”’; ‘“washout,”’ ‘“the
carrying away of solid waste by waters,”’ can be a disposal.)
Hazardous Waste Is a Subset of Solid
Waste
• “The term ‘hazardous waste’ means a solid waste” that causes
“illness” or poses a “hazard to human health or the
environment.”
42 U.S.C § 6903(5); Connecticut Coastal Fishermen's Ass'n, 989 F.2d at 1313 (“Under
RCRA ‘hazardous wastes’ are a subset of ‘solid wastes.”’).
• Lead is hazardous if it exceeds 5.0 mg/L.
40 C.F.R. § 261.24; Connecticut Coastal Fishermen’s Ass’n, 989 F.2d at 1317 (holding that
the waste was hazardous because a study found the concentration of lead in sediment
around the range exceeded the regulatory level, and the ducks in the area had high
levels of lead in heir blood and tissue).
RCRA’s Solid Waste “Dichotomy”
• “RCRA has an ‘Alice in Wonderland’ air about it.… ‘[S]olid waste’
plainly means on thing in one part of RCRA and something
entirely different in another part….”
• Regulatory claims get the “narrower” regulatory definition of
solid waste. Imminent and substantial endangerment claims get
the “broader statutory definition.”
Metacan Gun Club, Inc., 575 F.3d at 206.
• The Ninth Circuit does not recognize this distinction and only
uses the broader statutory definition.
Benjamin, 673 F. Supp. 2d at 1222
Solid Waste Statutory Definition
• “The term ‘solid waste’ means any … discarded material … from
… commercial … operations, and from community activities….”
42 U.S.C. § 6903(27).
• Shooting ranges generally are commercial operations or
community activities.
Discarded Material
• RCRA does not define “discarded material,” and the legislative
history does not help determine when a product “ha[s] served
[its] intended purpose.”
• The court deferred to the EPA’s amicus brief: “materials are
discarded because the have been ‘left to accumulate long after
they have served their intended purpose.”’
• But the court did not “decid[e] how long materials must
accumulate before they become discarded.”
Id. 1316.
Solid Waste Regulatory Definition
• The regulatory definition further requires that the solid waste be
discarded and “abandoned.”
40 C.F.R. § 261.2; Connecticut Coastal Fishermen’s Ass’n, 989 F.2d at 1316.
• Shooting ranges generally do not require RCRA permits because
spent ammunition does not fall under the narrower regulatory
definition of solid waste: ammo is being used as it is intended,
not ‘“abandoned by being disposed of….’”
Metacan Gun Club, Inc., 575 F.3d at 206-09 (affirming the dismissal of the regulatory
claim under Rule 12(b)(6)).
“May Present an Imminent and
Substantial Endangerment”
• Congress used “may,” indicating that it wanted a broad
application of the statute.
Metacan Gun Club, Inc., 575 F.3d at 210.
• ‘“[I]mminency’ requires a showing that a ‘risk of threatened
harm is present.”’
Id.
• “Substantial” means “serious.”
Id.
• ‘“[E]ndangerment’ means threatened or potential harm.”
Id. at 210.
Imminent and Substantial
Endangerment Remedies.
• Clean-up costs are not available under RCRA.
Meghrig v. KFC W., Inc., 516 U.S. 479, 485–86 (1996).
• There are civil and criminal penalties that can be as high as
$50,000 per day of the violation and five years in prison.
42 U.S.C. § 6928.
Abatement Orders
• RCRA gives courts jurisdiction to “restrain any person” who is
contributing to an imminent-and-substantial endangerment.
42 U.S.C. § 6972(a)(2).
• “In other words, the court can grant affirmative relief, if
necessary, to abate an imminent and substantial
endangerment.”
Price v. U.S. Navy, 818 F. Supp. 1323, 1325 (S.D. Cal. 1992), aff’d, 39 F.3d 1011.
Comprehensive Environmental
Response, Compensation, and
Liability Act
(CERCLA or Superfund)
42 U.S.C §§ 9601 et seq.
CERCLA’s Purpose
• CERCLA’s “purpose [is] to [1] ensure the prompt and effective
cleanup of waste disposal sites, and [2] to assure that parties
responsible for hazardous substances bore the cost of remedying
the conditions they created.”
Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1455 (9th Cir. 1986).
CERCLA’s elements
• The site is a “facility” under 42 U.S.C. § 9601(9);
• There has been an actual or threatened release of a hazardous
substance from the site;
• The release has caused the plaintiff to incur “response costs”;
and
• The defendant is a “responsible party” under 42 U.S.C. §
6907(a).
Kamb v. U.S. Coast Guard, 869 F. Supp. 793, 797 (N.D. Cal. 1994); Otay Land Co. v. U.E.
Ltd., L.P., 440 F. Supp. 2d 1152, 1159 (S.D. Cal. 2006), vacated sub nom., 338 F. App’x 689
(9th Cir. 2009).
Facility
• “The term ‘facility’ means … any site or area where a hazardous
substance has … come to be located; but does not include any
consumer product in consumer use….”
42 U.S.C § 9601(9).
• Lead is a hazardous substance in any amount under CERCLA
regulations.
40 C.F.R. § 302.4; A & W Smelter & Refiners, Inc. v. Clinton, 146 F.3d 1107, 1110 (9th Cir.
1998); Otay Land Co., 440 F. Supp. 2d at 1160-61.
Consumer Product in Consumer Use
• Courts are split on whether lead shot used at range is a
consumer product in consumer use.
Compare Otay Land Co., 440 F. Supp. 2d at 1160-61 (holding that spent lead ammo at a
range is a consumer product in consumer use) with Otay Land Co., LLC v. U.E. Ltd., L.P.,
15 Cal. App. 5th 806, 827-30 (Ct. App. 2017) (holding that a commercial range is not a
consumer product in consumer use).
Release
• The main issue is whether the substance was emitted into the
environment.
Sycamore Indus. Park Assocs. v. Ericsson, Inc., 546 F.3d 847, 852–53 (7th Cir. 2008) (citing
42 U.S.C. §§ 9601(8), (22)) (holding that asbestos that never escaped from a building was
not released because it never entered the environment).
• “Release” has “substantial overlap” with “disposal” under the
responsible party analysis.
Id.
Incur Costs
• The Plaintiff must incur the cleanup costs.
• A court-appointed referee who was selling property that was
used as a shooting range brought a CERCLA claim that was
denied because the true owners of the property, not the referee,
paid for the clean up.
Kamb, 869 F. Supp. at 796, 799.
Responsible Parties
• (1) current owners or operators of a facility;
• (2) former owner or operator of a facility at a time of hazardous
substance disposal;
• (3) persons who arranged for disposal or treatment of hazardous
substances at a facility; and
• (4) persons who accepted hazardous substances for transport to
disposal or treatment facilities.
Otay Land Co., 440 F. Supp. 2d at 1159 (citing 42 U.S.C. § 6907(a)).
CERCLA’s 4 Defenses
• (1) an act of God
• (2) an act of War
• (3) an act or omission by a third party
• (4) any combination of the above
42 U.S.C. § 9607(b)(1)-(4).
• “[T]he statutory defenses are exclusive.” CERCLA does not
“permit[] equitable defenses.”
California ex rel. California Dep't of Toxic Substances Control v. Neville Chem. Co.,
358 F.3d 661, 672 (9th Cir. 2004) (collecting authorities).
CERCLA Liabilities
• (A) all costs of removal or remedial action incurred by the
United States Government or a State or an Indian tribe not
inconsistent with the national contingency plan;
• (B) any other necessary costs of response incurred by any
other person consistent with the national contingency plan;
• (C) damages for injury to … natural resources, including the
reasonable costs of assessing such injury…; and
• (D) the costs of any health assessment or health effects study.
42 U.S.C. § 9607(a)(4)(A)-(D) (emphasis added); see also 40 C.F.R. §§ 301 et seq.
Avoiding Liability Under these
Statutes
The EPA Best-Practices Manual
• The EPA has a manual for managing spent lead ammunition at
shooting ranges, which can help avoid liability under federal
laws.
• Control and contain the lead bullets—backstops and shot-fall zones
• Prevent lead migration—adjust pH level of the soil and control runoff
• Remove and recycle lead—raking, vacuuming, or reclaiming
• Keep records
https://www.epa.gov/lead/best-management-practices-lead-outdoor-shooting-ranges
State Statutes
State Statutes
• States tend to have statutes that are similar to federal
environmental statutes.
• They also have their own statutes that tend to get similar
analysis.
See, e.g., Citizens for a Safe Grant v. Lone Oak Sportsmen's Club, Inc., 624 N.W.2d 796,
806 (Minn. Ct. App. 2001) (affirming dismissal of claim under Minnesota Environmental
Rights Act because plaintiffs provided no evidence that spent lead ammunition was
actually harming the environment.)
The End
State Shooting Range Statutes
State Statute
Alabama Ala. Code § 6-5-341
Alaska Alaska Stat. §§ 34.75.010 et seq.
Arizona Ariz. Rev. Stat. §§ 17-601 et seq.
Arkansas Ark. Code §§ 16-105-501 et seq.
California Cal. Civ. Code § 3482.1
Colorado Colo. Rev. Stat. § 25-12-109
Connecticut Conn. Gen. Stat. § 22a-74a
Delaware Del. Code Ann. tit. 10, § 8142
District of Columbia None
Florida Fla. Stat. § 790.333
Fla. Stat. § 823.16
Georgia Ga. Code Ann. § 41-1-9
Hawaii None
Idaho Idaho Code Ann. §§ 55-2601 et seq.
Illinois 740 Ill. Comp. Stat. 130/5
Indiana Ind. Code § 14-22-31.5-5
Iowa Iowa Code § 657.9
Kansas Kan. Stat. Ann. §§ 58-3221 et seq.
Kentucky Ky. Rev. Stat. Ann. §§ 237.200 et seq.
Louisiana La. Rev. Stat. Ann. § 30:2055.1
Maine Me. Rev. Stat. tit. 17, § 2806
Me. Rev. Stat. tit. 30-A, § 3011
Maryland Md. Code Ann., Cts. & Jud. Proc. § 5-403.1
Md. Code Ann., Envir. § 3-401
Massachusetts Mass. Gen. Laws ch. 214, § 7B
Mass. Gen. Laws ch. 269, § 12E
Michigan Mich. Comp. Laws §§ 691.1541 et seq.
Minnesota Minn. Stat. §§ 87A.01 et seq.
Minn. Stat. § 116.07
Mississippi Miss. Code. Ann. § 95-13-1
Miss. Code. Ann. § 17-25-15
Missouri Mo. Rev. Stat. § 537.294
Montana Mont. Code Ann. §§ 7-5-2109 et seq.
Mont. Code Ann. § 27-30-101
Nebraska Neb. Rev. Stat. §§ 37-1302 et seq.
Neb. Rev. Stat. § 14-102
Nevada Nev. Rev. Stat. § 40.140
Nev. Rev. Stat. § 202.450
New Hampshire N.H. Rev. Stat. Ann. § 147-B:9
N.H. Rev. Stat. Ann. §§ 159-B:1 et seq.
New Jersey N.J. Stat. Ann. §§ 13:1G-21.1 et seq.
New Mexico N.M. Stat. Ann. § 17-8-1
New York N.Y. Gen. Bus. Law § 150
North Carolina N.C. Gen. Stat. § 14-409.45
North Dakota N.D. Cent. Code § 42-01-01.1
Ohio Ohio Rev. Code Ann. §§ 1533.83 et seq.
Oklahoma Okla. Stat. tit. 63, § 709.2
Oregon Or. Rev. Stat. §§ 467.131 et seq.
Pennsylvania 34 Pa. Cons. Stat. §§ 2507 et seq.
35 Pa. Stat. Ann. §§ 4501 et seq.
Rhode Island 11 R.I. Gen. Laws § 11-47-62
South Carolina S.C. Code Ann. §§ 31-18-10 et seq.
South Dakota S.D. Codified Laws §§ 21-10-28 et seq.
Tennessee Tenn. Code Ann. § 13-3-412
Tenn. Code Ann. § 39-17-316
Texas Tex. Civ. Prac. & Rem. Code Ann. §§
128.001 et seq.
Tex. Health & Safety Code Ann. § 756.045
Tex. Loc. Gov't Code Ann. §§ 229.001 et seq.
Tex. Loc. Gov't Code Ann. § 250.001
Utah Utah Code §§ 47-3-101 et seq.
Vermont Vt. Stat. Ann. tit. 10, §§ 5227 et seq.
Virginia Va. Code Ann. § 15.2-917
Washington None
West Virginia W. Va. Code § 61-6-23
Wisconsin Wis. Stat. § 895.527
Wyoming Wyo. Stat. Ann. §§ 16-11-101 et seq.
MISSION STATEMENT
Established in 1990, the NRA Foundation, Inc. is a 501(c)(3) tax-exempt

organization that raises tax-deductible contributions in support of a wide
range of firearm-related public interest activities of the National Rifle
Association of America and other organizations that defend and foster the
Second Amendment rights of all law-abiding Americans. These activities
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For more information:
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The 22nd Annual National Firearms

8:00 - 8:20 Registration and Continental Breakfast

8:20 - 8:30 Welcoming Remarks

Law Seminar Steering Committee Chair

8:30 – 10:10 SESSION 1

Perceiving and Measuring Judicial Defiance of Heller

Professor George Mocsary

A Survey of Current Second Amendment Litigation - including the new U.S.

10:10 – 10:20 Networking Break

10:20 – 11:20 SESSION 2 - LEGAL ETHICS

Never Run Away - From Your Ethics

Justice Steven David

11:20 – 12:00 SESSION 3

Another Arrow in the Quiver: State Constitutions as Independent Guarantors of

Gun Culture 2.0, or How a Liberal Professor Became an Armed American

Professor David Yamane

1:00 – 2:45 SESSION 4

Updates on FBI NICS Checks and Appeals

A Primer: Gun Rights and the Veterans Administration

2:45 – 3:00 Networking Break

Firearms Forensics in the Courtroom

Dwight D. Van Horn

Making and Gunsmithing Firearms: Unlicensed Activities, “80% Receivers,” and

Stephen P. Halbrook, Ph.D.

4:40 – 4:50 Networking Break

Professor Mocsary is a co-author of Firearms Law and the Second Amendment:

Professor Mocsary’s work on the Second Amendment includes:

LAW JOURNAL ARTICLES

SECTION 2 – LEGAL ETHICS

Justice David is currently an adjunct professor at IU McKinney School of Law and is a

David Yamane is Professor of Sociology at Wake Forest University in Winston-Salem,

• Commissioned Officer Training, distinguished graduate

Professional & Community Activities

You May Not Know

2. Stephen P. Halbrook, Ph.D.

“Stephen Halbrook is an attorney with extensive knowledge of the historical

Legal background and focus

Supreme Court cases litigated

Gun Control in Nazi-Occupied France: Tyranny and Resistance (2018).

“New York’s Not So ‘SAFE’ Act,” 78 Albany L. Rev. 789 (2014/15).

Perceiving and Measuring Judicial Defiance of Heller

Professor George Mocsary

A Survey of Current Second Amendment Litigation – including the new

ROBERT J. COTTROL* AND GEORGE A. MOCSARY**

I. LEVELS OF SECOND AMENDMENT DEBATE . . . . . . . . . . . . . . . . . . . 21

II. UNDERENFORCEMENT OF THE SECOND AMENDMENT: RECONSIDERING

1. U.S. CONST. amend. II.

ity in punishment?12 Should the state’s approach to malum prohibitum (wrong

I. LEVELS OF SECOND AMENDMENT DEBATE

(2011); Ellen S. Podgor, Introduction Overcriminalization: New Approaches to a Growing Problem,

19. Bill of Rights, 1 W. & M., sess.2, c.2 (1689) (Eng.).

22. For example, Mississippi passed the following:

i. From Cruikshank to Miller

federal government. In United States v. Cruikshank, federal authorities brought

26. JOHNSON ET AL., supra note 22, at 299.

ii. From Miller to Heller

In the absence of any evidence tending to show that possession or use of a

Reviewing historical sources, the Court said,

[T]he Militia comprised of all males physically capable of acting in concert

The Court remanded for further proceedings.41 Although Miller is a confus-

39. Id. at 178.

lead to an increase in crime. In the coming decades, courts would continue to

iii. Heller and Beyond

● holding that the Second Amendment protects an “individual right to