Tag: Second Amendment

Taxing Guns

Policymakers across the nation have recently adopted new taxes on guns. As expected, these policies are controversial. Supporters believe the taxes will increase the cost of weapons, decrease sales, and provide the revenue necessary to fund the costs of gun violence across America. Critics, by contrast, argue the taxes are nothing more than poll taxes and will drive the market for weapons underground.

Lost in the debate is the fact that gun taxes have been on the books for over a century. Congress adopted the first of such taxes during World War I to address the nation’s extraordinary wartime revenue needs. Since then, policymakers at every level of government have added more taxes, creating a capacious system of modern gun taxation in the process.

Despite the significance of guns in America and the increasing role that taxes play, no study has systematically analyzed the underlying reasons for and against the laws or, more importantly, offered a detailed framework for recognizing the rights and responsibilities of gun ownership. In this Article, we begin to fill this surprising gap in the extant literature. We review three theories of public finance and find that all provide useful ideas for improving our system of firearm taxation. We argue that one approach, however, provides the best framework for shaping gun tax policy in the future: the Pigouvian theory of taxation. We explain how and why legislators should pursue Pigouvian taxation, and we outline policies for improving the nation’s approach to taxing guns.

* Thomas Griffith is the John B. Milliken Professor Emeritus of Law and Taxation at the University of Southern California Gould School of Law.

† Nancy Staudt is currently serving as the vice president of innovation at the RAND Corporation and the Frank & Marica Carlucci Dean at the Pardee RAND Graduate School. The views, opinions, findings, conclusions, and recommendations contained herein are the author’s alone and not those of RAND, the Pardee RAND Graduate School, or its research sponsors, clients, or grantors. We would like to thank Lee Epstein, Mitu Gulati, Kim Krawiec, and participants in many workshops, including at Duke Law School, Florida International University College of Law, Missouri State University, and Washington University School of Law, for helpful comments and suggestions. We also thank Tara Katelyn for her excellent research assistance and Sara Hubaishi for her excellent “Bluebooking” skills.

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The Wild West: Application of the Second Amendment’s Individual Right to California Firearm Legislation – Note by Forrest Brown

Note | Constitutional Law
The Wild West: Application of the Second Amendment’s
Individual Right to California Firearm Legislation
by Forrest Brown*

From Vol. 92, No. 5 (July 2019)
92 S. Cal. L. Rev. 1203 (2019)

Keywords: Second Amendment

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In its landmark District of Columbia v. Heller decision, the Supreme Court announced that the Second Amendment guarantees an individual right of the people to bear arms. Although Heller answered a long-standing question about the Second Amendment’s meaning, there remain issues to be settled. One of the most pressing—and the main topic of this Note—is the proper method of review and application of this individual right. Without guidance on these issues, several circuit courts have followed different approaches. Although opportunities to provide some clarity have come before the Supreme Court, so far, it has denied certiorari.

This Note will not opine on the merits of the individualist or collectivist approaches to the interpretation of the Second Amendment, as this question has been answered conclusively in Heller. Instead, this Note will provide a suggested framework for the application of this individual right to keep and bear arms, and will progress as follows. Part I will offer a contextual history of the Second Amendment. Part II will make the case for why clarity on this issue is so desperately needed and is punctuated by a discussion of the Second Circuit’s particularly troubling application of the right. Part III will offer a proposed framework that, if adopted by the Supreme Court, can resolve the questions posed in Part II. Part IV will apply the framework to California concealed carry regulations. Finally, Part V will apply the framework to a new California law that is likely to make its way to the Ninth Circuit soon, thus allowing the Supreme Court to clarify Second Amendment jurisprudence further.

*. Senior Submissions Editor, Southern California Law Review, Volume 92; J.D. 2019, University of Southern California Gould School of Law; B.A., Economics & Accounting 2015, University of California, Santa Barbara. My deepest appreciation goes to Professor Rebecca Brown for her guidance, the editors of the Southern California Law Review for all of their hard work, and my family and friends for their continued support.

 

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Packing Heat: Judicial Review of Concealed Carry Laws Under the Second Amendment – Note by Kevin Behne

From Volume 89, Number 6 (September 2016)
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The regulation of firearms is one of the most volatile policy issues in the United States. Virtually every effort to regulate—or deregulate—the accessibility or usage of firearms raises dueling concerns of public safety and individual rights. Federal courts are no exception to the controversy, offering a microcosm of the broader public debate. The Supreme Court’s sharply divided decisions in District of Columbia v. Heller and McDonald v. City of Chicago are illustrative of the point; while Heller established the Second Amendment right to keep and bear arms in the individual context, and McDonald extended the right as fundamental and binding on the states, the decisions did little to fix the scope and magnitude of the newly created right, leaving it open to spirited debate. In the wake of the two decisions, lower courts have been left to grapple with how far and with what rigor to scrutinize state and local laws that may burden the right to keep and bear arms.

People may kill and injure people, but guns appear to be a weapon of choice. In the United States alone, there are over 32,000 firearm-related deaths annually and an additional 78,000 persons are injured as a result of interpersonal firearm violence. While a significant portion of the casualties are attributable to suicides, accidents, law enforcement, or self-defense, an appreciable portion are the product of criminal activity. Although exact numbers are difficult to ascertain, the Department of Justice estimates that each year, approximately 470,000 persons become victims of a crime committed with a firearm. But perhaps the most visible manifestations of gun violence are “mass shooting” incidents, drawing substantial media coverage and public concern. These variables, among others, animate concerns of public safety, giving rise to policy arguments for more stringent regulations of firearms.

 

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The New York Safe Act: A Thoughtful Approach to Gun Control, or a Politically Expedient Response to the Public’s Fear of the Mentally Ill? – Postscript (Note) by Matthew Gamsin

From Volume 88, Number 2 (January 2015)
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This Note will first review the historical development of gun-control laws in the United States, including those referred to by the Supreme Court as “longstanding prohibitions on the possession of firearms by . . . the mentally ill.” It will then analyze the extent to which the SAFE Act differs from such longstanding prohibitions and whether the Act is constitutional. Finally, this Note will consider whether, regardless of its constitutionality, the SAFE Act is an appropriate legislative response to gun violence or whether a recent proposal by a group of national experts on mental illness and gun violence might be more effective and more likely to pass constitutional muster.

 

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“McDonald Does Dallas”: How Obscenity Laws on Hard-Core Pornography Can End the Nation’s Gun Debate – Note by John Korevec

From Volume 88, Number 1 (November 2014)
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The dialogue on guns in the United States tends to fall toward one of two extremes—“everyday, guns kill good people” or “everyday, guns kill bad people.” The debate becomes a battle of values between two groups with two very different, yet very passionately held worldviews. Even legal scholarship cannot immunize itself from devolving into normative discussions founded on what the law should be, rather than providing analysis of what the law actually is. Unfortunately, a more targeted discussion arising directly out of Second Amendment jurisprudence is particularly difficult, as the U.S. Supreme Court has provided very limited guidance on the types of gun regulations that can pass constitutional muster.

 

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Essays: Second Amendment Penumbras: Some Preliminary Observations – Article by Glenn Harlan Reynolds

From Volume 85, Number 2 (January 2012)
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The Second Amendment to the Constitution is now part of “normal constitutional law,” which is to say that the discussion about its meaning has moved from the question of whether it means anything at all, to a well-established position that it protects an individual right, and is enforceable as such against both states and the federal government in United States courts. The extent of that individual right has not yet been fully fleshed out, and, of course, will (like other items of normal constitutional law) occasion disagreement on one issue or another into the foreseeable future.

Nonetheless, now that the right has achieved a measure of concreteness, it has begun, like other parts of the Bill of Rights, to cast its shadow across the law. And if the core of the shadow—or umbra—remains a bit unclear, what of the edge or penumbra? In this brief Essay, I will discuss some possible penumbral aspects of the Second Amendment, as it may be applied in the future. I will also discuss its possible interaction with other (up to now, at least) “underenforced” constitutional rights, and consider whether the normalization of the Second Amendment might imbue those rights with additional force. I will conclude with some guidelines, or at least suggestions, for further research.

 

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Second Amendment Standards of Review: What the Supreme Court Left Unanswered in District of Columbia v. Heller – Note by Jason T. Anderson

From Volume 82, Number 3 (March 2009)
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In June 2008 the Supreme Court issued its opinion in the case of District of Columbia v. Heller, its first directly concerning the Second Amendment since 1939. Heller involved a series of D.C. laws that had the effect of banning the possession of handguns. At the narrowest level, the Court was deciding whether a ban on handguns violated the Second Amendment; however, the broader issue facing the Court concerned the fundamental meaning of the Second Amendment: does the amendment protect a collective or individual right to bear arms? To that question, the Court answered the latter, thus ending an at-times heated debate among legal scholars and those on both sides of the gun control debate. But the Court left the door open for a new debate to begin in the Second Amendment context: what standard of review applies to legislation that restricts an individual’s right to bear arms? Writing for the majority, Justice Scalia noted that “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to “keep” and use for protection of one’s home and family’ would fail constitutional muster,” and—unapologetically—failed to identify which standard the majority was using in this case. Justice Breyer’s dissent chided Scalia for this move, claiming that this failure to be more specific “throw[s] into doubt the constitutionality of gun laws throughout the United States.”

 

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