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56 UCLA L. Rev. 1443 (2008-2009)
Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda

handle is hein.journals/uclalr56 and id is 1453 raw text is: IMPLEMENTING THE RIGHT TO KEEP AND BEAR ARMS FOR SELF-DEFENSE: AN ANALYTICAL FRAMEWORK AND A RESEARCH AGENDA Eugene Volokh How should state and federal constitutional rights to keep and bear arms be turned into workable constitutional doctrine? I argue that unitary tests such as strict scrutiny, intermediate scrutiny, undue burden, and the like don't make sense here, just as they don't fully describe the rules applied to most other constitutional rights. Rather, courts should separately consider four different categories of justifications for restricting rights: (1) Scope justifications, which derive from constitutional text, original meaning, tradition, or background principles; (2) burden justifications, which rest on the claim that a particular law doesn't impose a substantial burden on the right, and thus doesn't unconstitutionally infringe it; (3) danger reduction justifications, which rest on the claim that some particular exercise of the right is so unusually dangerous that it might justify restricting the right; and (4) government as proprietor justifications, which rest on the government's special role as property owner, employer, or subsidizer. I suggest where the constitutional thresholds for determining the adequacy of these justifications might be set, and I use this framework to analyze a wide range of restrictions: what restrictions (such as bans on machine guns, so-called assault weapons, or unpersonalized handguns), who restrictions (such as bans on possession by felons, misdemeanants, noncitizens, or 18-to-20-year-olds), where restrictions (such as bans on carrying in public, in places that serve alcohol, or in parks, or bans on possessing in public housing projects), how restrictions (such as storage regulations), when restrictions (such as waiting periods), who knows regulations (such as licensing or registration requirements), and taxes and other expenses. IN TRO DU CTIO N ..................................................................................................................1445 1. A FRAMEWORK FOR THINKING ABOUT CONSTITUTIONAL R IGHTS D OCTRIN E.....................................................................................................1448 A . S cope ..................................................................................................................144 9 1. T ext............................................................................................................1449 * Gary T. Schwartz Professor of Law, UCLA School of Law (volokh@law.ucla.edu). Many thanks to Amy Atchison, Cheryl Kelly Fischer, John Frazer, Wesley Gorman, Gene Hoffman, June Kim, Michael O'Shea, Tammy Pettinato, Stephanie Plotin, Vicki Steiner, C.D. Tavares, Vladimir Volokh, and John Wilson for their help. 1443

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