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October 28, 2009

Interesting debate over "Guns as Smut" thanks to Columbia Law Review

The October 2009 issue of the Columbia Law Review has an interesting article by Darrell A.H. Miller, which is titled "Guns as Smut: Defending the Home-Bound Second Amendment." Here is a synopsis:

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms.  But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for “future evaluation.”  This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment right to keep and bear arms for self-defense the same as the right to own and view adult obscenity under the First Amendment — a robust right in the home, subject to near-plenary restriction by elected government everywhere else.

In addition, the Sidebar feature or the CLR has this commentary about the article from Eugene Volokh.  His response, which is titled simply "The First and Second Amendments," makes this key point:

The premise of the Court’s obscenity decisions is that obscenity lacks constitutional value without regard to the place in which it may be present, though it may not be suppressed via intrusions into the home.  That premise does not extend to private gun ownership under Heller.

And naturally Guns as Smut’s unsound premise leads to unsound results.  If guns were really like obscenity, the government would be free to ban the buying of guns and not just their public possession.

Professor Miller gets in a final word through this short Sidebar reply.

UPDATE:  Folks can access the full draft of "Guns as Smut" at this SSRN link.

October 28, 2009 at 12:55 PM | Permalink

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Comments

Except that Heller already said that arbitrary and capricious application of rules is out of bounds. If the 2A is incorporated I fully expect that requirement to be included and to be one of the major litigation props against NYC and many California locales.

I also don't see the 40+ states that have shall issue or no permit requirement for concealed carry reverting any time soon. Also, as I've said before it will be interesting to see if the open carry cases from the 1800s are still considered good law if the 2A is incorporated.

Posted by: Soronel Haetir | Oct 28, 2009 1:23:16 PM

SCOTUS has allowed possession of obscenity but still allows regulation of sale of obscenity. If you follow this logic to Heller, people could have any guns they want in their home, but the state could still ban the sale and transfer of said guns.

Posted by: . | Oct 28, 2009 1:41:20 PM

Interesting but completely inaccurate. There are two conditions to arms in the 2nd Amendment. Keep and BEAR. Bear would not mean simply to own as that would be redundant. Bear means to carry or transport, as in someone bearing gifts. You don't bear gifts by leaving them at home do you? So, yeah, nice try at once again limiting freedom in a supposed "free country".

Posted by: foo | Oct 29, 2009 11:28:15 AM

About time the guns were ruled to be required to keep at home. Too mamy rednecks with guns on the streets as it is. They can't seem to read the "militia" part in the 2nd.

Posted by: gunshowonthenet | Oct 29, 2009 12:02:27 PM

Rednecks with guns on the streets? How incredibly ignorant. Maybe you should research what the militia actually is instead of making yourself look foolish.

Posted by: foo | Oct 29, 2009 12:19:04 PM

Rednecks are not the ones you should worry about on the streets. Most of the rednecks I know and I know a few all are licensed with the CCW. That is more than I can say about your street gang thugs.

North Carolina

Posted by: Anon | Oct 29, 2009 6:49:34 PM

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