Law: The Incredibly Inexact Science

Law: The Incredibly Inexact Science

I'm writing a law review article concerning the standards of review used by state courts with respect to the right to keep and bear arms at the moment. I'm just astonished, as I go back through the stack of decisions that I used for my book For the Defense of Themselves and the State how really astonishingly careless many of these decisions were--from the 19th century, and from the 20th century. It's even worse when you start to look up the precedents that they cite--with no apparent awareness that they are often citing contradictory precedents to prove their point. It isn't at all unusual to find cases that cite one set of decisions to prove that there is no right to concealed carry, and another set of decisions to prove that their is no right to open carry--with no awareness that the "no right to concealed carry" decisions often directly say that concealed carry can be prohibited only if open carry is allowed (or vice versa).

The standard of review aspects are even uglier. A lot of the decisions (especially in the 19th century, but even in the 20th century) do consider the right to keep and bear arms an absolute right--one that cannot be denied in public places. Other decisions use various "balancing of interests" approaches, whereby if some legitimate public purpose is in conflict, such as public safety, then the right can be regulated. But it is astonishing how sloppy many of these decisions are about this. How important does the public interest have to be? I can understand arguments for a variety of approaches, but many of these decisions can't seem to ever quite express what that standard is.

Some argue that the regulation must be "reasonable" without ever giving an example of unreasonable. Some argue that the right can be regulated, but not abolished. My favorite are the decisions of the Tennessee and Arkansas Supreme Courts, which both ruled that the legislature couldn't prohibit carrying pistols--but could require them to be always carried in the hand, at all times. Talk about the most dangerous possible mode of carry!