The 10 most practically significant — yet potentially legally vulnerable — restrictions on availability of guns for self-defense

There are many gun control laws in the United States, and people have lots of constitutional arguments for or against them. But which of those laws actually (1) substantially interfere, as a practical matter, with self-defense, and yet are (2) practically vulnerable? Bans on so-called assault weapons, for instance, strike me as unwise, but they don’t themselves practically interfere with self-defense in a substantial way: people remain free to have guns that are just as effective for self-defense. Bans on gun possession by people who have recent violent felony convictions do practically affect lots of people, but they will pretty clearly be upheld, given the language on the subject in D.C. v. Heller.

In this post, I want to avoid both these categories — the restrictions that, for all their pluses or minuses, don’t much interfere with self defense, and the restrictions that are pretty clearly constitutional under current caselaw — and then look at the most practically significant of the remaining laws. Here is a list that I came up with.

1. Restrictions on gun carrying in public places in CA, DC, DE, HI, MA, MD, NJ, NY, RI, which affect outside-the-home self-defense by over 50 million people. (I include CA, DC, and HI here, so long as the decisions striking down the gun carrying restrictions in those jurisdictions are still on appeal.)

2. Restrictions on handgun ownership by 18-to-20-year-olds in many states, which affect self-defense by likely about 5 million or more people. (I don’t count the federal law here, since it can be avoided legally, and with relative ease, by buying from someone who isn’t a professional gun dealer — such a sale is legal even if that person knows the buyer is 18 to 20; compare subsections (b) and (d) of 18 U.S.C. § 922.)

3. Restrictions on handgun carrying by 18-to-20-year-olds in many states, which even more seriously affect outside-the-home self-defense (since long guns aren’t easily available substitutes for carry purposes).

4. The federal restriction on gun possession by legal nonresident aliens, which affects likely about 1 million people, including many who are here for years to study or to work. (Many legal nonresident aliens are here on work visas that let them work in a particular job.)

5. Restrictions on handgun carrying or (in a few states) possession by legal aliens, resident or otherwise, in those states that impose such limits and in which the limits haven’t yet been struck down (whether on Second Amendment grounds or Equal Protection Clause grounds).

6. Restrictions on gun possession in people’s apartments within some government-owned housing, whether public university dorms or public housing.

7. Restrictions on gun possession by felons whose convictions are minor enough, or long enough ago, but which are in jurisdictions where restoration of civil rights is hard or impossible (since some courts have expressed a willingness to reconsider that, see e.g., United States v. Moore, 666 F.3d 313, 320 (4th Cir. 2012); United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010); United States v. Duckett, 406 Fed. Appx. 185, 187 (9th Cir. 2010) (Ikuta, J., concurring); United States v. McCane, 573 F.3d 1037, 1049-50 (10th Cir. 2009) (Tymkovich, J., concurring); cf. Britt v. State, 681 S.E.2d 320 (N.C. 2009) (holding that a nonviolent felon whose crime was long in the past regained his state constitutional right to keep and bear arms); Baysden v. State, 718 S.E.2d 699 (N.C. Ct. App. 2011) (same).)

8. Restrictions on gun possession by those with old records of mental illness, but who have been credibly pronounced to no longer be mentally ill, but who live in jurisdictions where restoration of gun rights in such situations is hard or impossible.

9. License fees for gun possession or handgun possession in those jurisdictions that impose hefty fees — the jurisdictions I’ve heard mentioned in this list are New York City, Massachusetts, and New Jersey — at least as to those people for whom those fees are big money.)

10. Similar license fees for concealed carry licenses, again as to those people for whom those fees are big money.

I might be missing some restrictions that affect a comparable number of people, and of course the size of the affected group is often hard to measure. (For instance, how many people are disqualified from gun possession by (a) having domestic violence misdemeanor convictions that (b) are long enough ago that a court might conclude the person’s Second Amendment right trumps the government interest in continuing to disarm the person?) Still, I think this is a good starter list, and it has some items on which I think most people haven’t much focused.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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