Doug Berman at SLP has challenged Head Conspirator  Eugene Volokh’s acceptance in our latest edition of lawprof mud-wrestling.  Eugene, who has been tracking the atrocity of lower-level court decisions post-Heller, proffers an alternative view of the proper way to address the issue of a crime committed by a person who, at the time, has a gun.

It seems to me that the Washington Supreme Court’s rule — requiring some connection between the possession and the crime, to distinguish unprotected use of a gun in crime (even if the gun isn’t fired or brandished) from protected possession of a gun even when a crime is in progress — is a sensible way of reading the Second Amendment as well; and as best I can tell federal law would be consistent with such a rule, because it already includes this sort of “nexus” requirement. But in any case, the deeper point is that some of these novel Second Amendment questions aren’t novel right-to-bear-arms questions, because state courts have dealt with them under many of the 40 state constitutional provisions that clearly secure an individual right to keep and bear arms in self-defense.

To summarize (or really to snarkily recharacterize), this is the “some sorta, kinda connection of some sort, but short of firing or brandishing” rule.  Since this would be unwieldy to speak or write, it should be hereinafter referred to as the “SSKCOSSBSOFOB Rule.”  I hope that helps.

Doug takes issue with Eugene’s proposal.

The problem I have with this idea is that, if one really believes in a true right to “keep and bear arms,” why should any keeping of a gun be deemed an “unprotected use” leading to an enhanced sentence unless and until the gun is fired or brandished or otherwise actively and directly used as part of a crime? 

Doug analogizes this with the exercise of another fundamental constitutional right, free speech, with a tenuous connection to the commission of a crime, and questions why that, like possession of a gun, shouldn’t result in an enhancement.  Doug also questions how one exercises this right when the tipping point between constitutional right and crime is so tenuous.

These ideas lead me to wonder whether and how “chilling” or “undue burden” doctrines that have often been applied in the First Amendment and other contexts might extend to the Second Amendment.  If a person is under constant fear that his (otherwise lawful) possession of a gun could lead to a massive sentence increase if he even gets in a bar fight, won’t persons be (unduly) chilled from exercising their constitutional rights to keep and bear arms?

I think Doug recognizes something that Eugene’s analysis does not.  Eugene has still not wrapped his arms around the idea that if gun possession is a fundamental right, then it must be viewed as are other constitutional rights, provided all people, good or bad, felons or virgins, citizens or illegals.  We are still so used to thinking of the possession of a gun by “bad people” as criminal that we can’t quite seem to grasp or accept the real consequence of Justice Scalia’s decision. 

From a practical point of view, Eugene’s test, the “SSKCOSSBSOFOB Rule,” presents a bit of a problem.  We like bright-line tests, where we know when someone has crossed the line and engaged in criminal conduct,  We don’t like tests that are vague and leave it up to individual judges to decide where the line is drawn.  Not only do we lack the ability to properly advise clients, but we look pretty darn foolish trying to pronounce such an ill-conceived acronym (what were you thinking, Eugene?).

I’m glad to see that Doug has continued to hold his other lawprofs’ feet to the fire on this. 

Of course, as I have said in many prior posts, I seriously doubt that courts (or even vocal gun right advocates) will ever work through all the implications of taking and protecting Second Amendment rights seriously for everyone and not just for “preferred individuals.”  This suggests that in the gun arena, like in so many others, advocates seek principally to protect rights for people they like, not for those they don’t.

That’s the bottom line.  Now that the proponents of the individual right to keep and bear arms got their wish, it’s time to live the hard consequences of intellectual integrity.