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Choosing A Side

I

I solemnly swear that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.

— California Attorney’s Oath of Office; see California Business & Professions Code § 6067

 

attorney oath photo

New California attorneys being sworn in to practice (not me). Image by brianwc

December 1, 1994, was a very proud day for me. On that day, I stood up before a judge in a courtroom in what then was known as the Central Courthouse of the Los Angeles County Superior Court, raised my right hand, and recited those words. I meant what I said, and thought I was following through by working in impact litigation doing Constitutional test cases — trying to expand the limits of individual rights as against the government.

Many people have recited similar oaths. Many other attorneys, of course. Men and women who join the military. People who take important governmental offices. Not for nothing are these various oaths phrased in the form of promising to support, protect, and/or defend the Constitution. Not a “people,” for we are a nation made up of many people. Not even a “nation,” for we are federalized and have not to this day fully settled the notion of whether we are one polity or many. Most certainly not to a personal sovereign. Kings, even kings that are effectively subordinate to democratic institutions, are not for us.

We are, instead, a nation of laws. Our loyalty and honor is pledged to the law — for the Constitution is first and foremost a law, the supreme law of the land.

It was the proudest day of my young life and if asked or required to do so again, I would freely and gladly recite those words once more in a setting of similar solemnity, formality, and import. But today, I’d better appreciate what it means, having reflected on the realities of fulfilling our Constitutional promises to ourselves frequently and with the benefit of experience actually trying to do it right. As I’ll explain in a little while, I wish that others in our political and legal system had engaged in similar sorts of reflection. Had they, perhaps I’d not be so disgusted with them today.

 

II

[I]t is necessary to balance “the liberty of the individual” and “the demands of an organized society”.

Youngblood v. Romero (1982) 457 U.S. 307, 320 (quoting Harlan, J., dissenting in Poe v. Ullman (1961) 367 U.S. 497, 542).

Rights under our system of laws are not absolute. They often clash with one another, they often clash with the asserted powers of government. This is why we have a hierarchy of laws, to determine if one law conflicts with another. If one law conflicts with a different law on a superior place in the hierarchy, the superior law prevails and to the extent the inferior law conflicts with it, it is a nullity. That is the essence of what Constitutional law is: the Constitution is the highest law of the land, and therefore no other law may contradict it.

The way we have worked out to do this is through the process of judicial review. This, itself, is superficially controversial as some people maintain that judicial review constitutes a sort of usurpation of the legislative power by the courts. I disagree, but need not join that field of battle here. It’s how we’ve done things since 1803 and pretty much every ideological grouping of people in existence is happy enough to go along with this when the result favors their own preferred political agenda.

balancing photo

Image by hans s

To reach a lawyer’s understanding of what it is to “support” the Constitution, one must of necessity undertake a bit of legal education. A deliberate, careful, logical, and literal examination of a sentence in the Constitution reveals, quickly, a substantial zone of ambiguity. Let’s take a right we all at least superficially agree is a cherished, important,and universal one: free speech. To really understand what the right of free speech means in American Constitutional Law is simply not a possible with a reading of the text of the First Amendment alone. All that tells us is that Congress shall not abridge the freedom of speech.

Well, what exactly is that right? Can anyone say whatever they want, anywhere, any time, in any context? No, and indeed the that the answer to that question is no is sufficiently well-known as to not be the particular demesne of lawyers who immerse themselves in Constitutional law, even if the particulars of what sorts of restrictions are Constitutionally permissible are complex and arcane. We know, for instance, that Congress (and by extension of the Fourteenth Amendment, the several states) may impose reasonable time, place, and manner restrictions on speech. You can speak in public, but maybe you can only do so during daylight hours so people can get some sleep. Maybe you can only amplify your voice to a certain point so that others may go about their day in peace. You cannot defame someone free of penalty, nor advocate the violent overthrow of the government, nor incite a riot.

 

III

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Constitution of the United States of America, Amendment II

This sentence, for better or worse, is part of the supreme law of the land. It is part of that instrument to which I have sworn support. The support of a lawyer for such a concept is distinctive: lawyers are uniquely trained in the parsing, analysis, and understanding of laws.

For a rather long period of time, the Second Amendment quoted above went unanalyzed in any substantial way. There were until recently in our history but few people who presented legal disputes that called these words of our highest law into question, few people for whom varying reasonable interpretations of those words mattered. History happened and for the most part, our courts did not address the role of weapons within it. Little surprise, then, that weapons are an integral part of our culture.

The citizen militias of the Revolutionary and Federal eras were the principal instruments of our national defense during the first two generations of our national independence. We were a frontier nation, expanding our borders aggressively (and not without stain to our national honor in the way that we did it) necessitating self-sufficiency for individuals living far away from our urbanized eastern seaboard. We’ve been a nation of hunters and a nation at at least low levels of war  for most of our existence. And though we have never stopped debating the efficacy and wisdom of this social experiment, our modern, urbanized nation deploys the dissemination of personal firearms as a check against the spread of crime.

Not until eight years ago, after I’d already sworn my oath as an attorney, did the United States Supreme Court tackle the interpretation and application of the Second Amendment in any meaningful, comprehensive, and authoritative way until the case of District of Columbia v. Heller (2008) 554 U.S. 570. It’s one of the very best majority opinions the late Justice Antonin Scalia ever wrote, for the depth of its historical and legal research, especially into difficult pre-Revolutionary British common law. I quote extensively here from the majority opinion here, omitting the internal citations:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. … [T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. … [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. … We also recognize another important limitation on the right to keep and carry arms … the sorts of weapons protected were those “in common use at the time.” … We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

* * *

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.

* * *

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns… . But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.

This amplifies the point I made in the previous section that Constitutional rights are important and to be afforded deference, but even in the mind of arch-conservative Antonin Scalia, the individual right explicated by the Second Amendment is not absolute. It is for the political process, then, to find a way to marry the exercise of that individual right into an ordered and lawful, but nevertheless free, society.

When I refer to “reasonable restrictions” on the Second Amendment right, I refer to the sorts of time, place, and manner of usage restrictions, the type-of-weapon restrictions, the sale and licensure restrictions, the restrictions on access to weapons to the mentally ill and those with criminal histories. In other words,

  • Some kinds of weapons are not within the right to keep and bear arms at all (although we know handguns are within the protected category).
  • Laws restricting how you carry a weapon do not by definition prevent you from owning or peacefully using one.
  • Laws restricting where weapons might be — not in government buildings, not near schools, etc. — do not restrict your right to bear arms.
  • Felons and the mentally ill do not have the right to keep and bear arms.
  • You can be lawfully required to get a license, post a bond, pass a test, and register your ownership of the firearm as conditions of selling one or acquiring one.

The last quoted sentence from Heller, however, makes it clear that this a right we are talking about, not a privilege and not a license and not something to be taken lightly simply because its exercise is unpopular (with some people). As a right, it puts certain kinds of activity out of the reach and power of the government.

 

IV

It’s always easy to get people to condemn threats to free speech when the speech being threatened is speech that they like. It’s much more difficult to induce support for free speech rights when the speech being punished is speech they find repellent.

Glenn Greenwald

In the late 1970’s, American Neo-Nazis wanted to march in a parade in Skokie, Illinois, one of Chicago’s suburbs. Skokie was then, and I think it is now, a city with a large Jewish population. Why did they want to do this? “To be assholes” has always seemed about as full and complete an answer as is necessary.

The city resisted granting the Neo-Nazis a parade permit, officially citing threats to public safety that would inevitably result from the planned activity but its politicians wasted no effort to conceal their loud and strenuous disapproval of the Nazis’ message of white supremacy. As is well-known in the lore taught to law schools, typically in Constitutional Law class, the American Civil Liberties Union made what for its leaders was at once a painful and uncomfortable choice, and also an easy one. The ACLU describes the situation thus:

The notoriety of the case caused some ACLU members to resign, but to many others the case has come to represent the ACLU’s unwavering commitment to principle. In fact, many of the laws the ACLU cited to defend the group’s right to free speech and assembly were the same laws it had invoked during the Civil Rights era, when Southern cities tried to shut down civil rights marches with similar claims about the violence and disruption the protests would cause.

ACLU photo

Image by rsgranne

This rather understates the reaction to the decision to take on the case and litigate in favor of the Nazis’ First Amendment rights to have a parade like other, more respectable groups. I had the great privilege as a young lawyer of working directly with the chief litigator of the ACLU Legal Foundation of Southern California, who had himself been a young lawyer while all of this was going on. The ACLU had then, as it does now, attracted funding from a variety of sources most of them well to the political left. Many of the people who were writing checks to the ACLU in the late 1970’s were themselves Holocaust survivors or had close family members who were. Supporting Nazis was intolerable to them, even if legally the Nazis were in the right. To hear my mentor tell it, national lay membership in the organization dropped by an amount approaching 50%, and funding dropped by more than that. Quite literally, the survival of the organization was at stake.

Also as is well-known, the ACLU prevailed, in National Socialist Party of America v. Village of Skokie (1977) 432 U.S. 43. The principal litigator, Burton Joseph, pushed to take the case and made absolutely clear his contempt for the Nazis’ message at the same time he advocated for the government to let them deliver it. It took a while to attract the donors and the members back, but in the long run that case did the organization a world of good: it demonstrated that the ACLU is not always going to take the left-wing side of things, that it will stand on principle against its own members’ preferences and even against its own interests if need be. Civil rights really are for everyone, even people you don’t like. Maybe even especially for people you don’t like. If you are only willing to stand up and support someone else’s civil rights when you like the result, it’s difficult to say that what you’re really supporting is the right or the result. The true measure of whether you support a civil right on its own merit is when you support someone else’s right to do a particular thing that you would rather that person not do.

I’ve got several other personal and political issues with the ACLU which keep me from wanting to join them (specifically, I think it intervenes in electoral politics too much), but the Skokie case stands out as the organization’s finest hour for precisely this reason. It’s a model of legal heroism. We’d all do well to look at it and emulate Burton Joseph in at least this respect: they were willing to stand up for the civil rights of pretty much the most odious people around. They weren’t in it because they wanted the Nazis to have a parade. They were in it because freedom of speech meant something to them. They made good on their oaths.

 

V

The death of one man: that is a catastrophe. One hundred thousand deaths: that is a statistic!

Kurt Tucholsky, German satirist, 1925 (often misattributed to Josef Stalin)

A search of our database reveals that the earliest post on this website is dated January 20, 2009.

Since that date, the number of headline-grabbing heartbreaking mass shootings that have occurred is, sadly, legion. Many times, including the most recent attack in Orlando, we’ve paused our writing about other issues and reflected and mourned and sometimes had nothing much to say and other times vented focused anger at the events.

Here’s the significant mass shootings that I can remember since the date of our earliest post here, with an assist from the Los Angeles Times because, like me, there have been so many you’ve likely forgotten about some of them in the meantime. I’d say don’t be ashamed, but maybe we should be ashamed of that state of affairs.

Some disclaimers: I include information about the nature of the attackers and the weapons used because these are frequent points of discussion following these events, which dovetail to become relevant to my ultimate point for this post. Also intending no disrespect to the slain and their families, I have generally included the shooter in the count of the dead when the shooter was killed during the shooting or its immediate aftermath, whether by law enforcement or by suicide. For our purposes here, a death is a death. Finally, I also don’t purport that these are the only “mass shootings” that have taken place since 2009, and how exactly one defines the term “mass shooting” is far from a settled matter. I’m not entirely sure how the Los Angeles Times picked these, but I think it’s at least six victims from a single sequence of violent activity.

Date Location Killed Injured Type of Attacker Weapon
June 12, 2016 Orlando, Florida 50 54 Married but separated male, Muslim US Citizen, “inspired” by Islamist groups. Sig Sauer MCX, a semi-automatic rifle.
December 2, 2015 San Bernardino, California 14 22 Married Couple, Muslim US Citizen and Pakistani citizen with green card, “inspired” by Islamist groups. Multiple semi-automatic pistols and rifles.
November 29, 2015 Colorado Springs, Colorado 3 9 Divorced male, evangelical Christian US Citizen, likely selected victim at Planned Parenthood clinic motivated by anti-abortion beliefs. AK-47 style” semi-automatic rifle.
October 1, 2015 Roseburg, Oregon 9 9 Single male, secular  US citizen, thought to have white supremacist affiliations. Multiple handguns.
July 16, 2015 Chattanooga, Tennessee 5 3 Single male, Muslim naturalized US Citizen, “inspired” by Islamist groups. Semi-automatic rifle (again, identified as “AK-47 style”) and 9mm handgun. 12-gague shotgun recovered from shooter but unused in attacks.
June 18, 2015 Charleston, South Carolina 9 zero Single white male, Christian US Citizen, “inspired” by white supremacist propaganda Glock 41 .45 caliber handgun.
May 23, 2014 Isla Vista, California 6 7 Single white male, Christian US Citizen Glock 34 handgun, Sig Sauer P225 handgun, knife, automobile
April 2, 2014 Fort Hood, Texas 3 16 Married white male U.S. citizen from Puerto Rico, Christian .45 caliber M&P semi-automatic handgun
September 16, 2013 Washington, D.C. Navy Shipyard 12 3 Single black male US Citizen, lapsed Christian studied Buddhism 12-gauge shotgun, 9mm semi-automatic handgun.
June 7, 2013 Santa Monica, California 5 0 Single male Lebanese-American, Christian (suicide note disclaimed religious motives) AR-15 semi-automatic rifle.
December 14, 2012 Newtown, Connecticut 28 1 Single white male, Christian Bushmaster XM 14-E2S .223 semi-automatic rifle.
October 21, 2012 Brookfield, Wisconsin 4 4 Married black male Jamaican national with green card, Christian Glock .40 semi-automatic handgun.
September 28, 2012 Minneapolis, Minnesota 7 2 Single male U.S. Citizen, Christian Glock 9mm semi-automatic handgun.
August 5, 2012 Oak Creek, Wisconsin 7 3 Single white male U.S. Citizen, Christian (victims were all at Sikh temple, shooter had ties to white supremacist groups) Springfield XD(M) semi-automatic pistol.
July 20, 2012 Aurora, Colorado 12 58 Single white male U.S. citizen, religion unclear at time of attack but converted to Islam after apprehension Smith & Wesson M&P-15 semi-automatic rifle, 12-gauge shotgun, Glock 22 .40 caliber handgun.
April 2, 2012 Oakland, California 7 3 Single male Korean-born naturalized U.S. citizen, presumed Christian .45 caliber handgun, style of firing mechanism not reported.
October 12, 2011 Seal Beach, California 8 1 Divorced white male U.S. citizen, religion uncertain 9mm semi-automatic handgun, .45 caliber semi-automatic handgun, .44 magnum revolver handgun.
January 8, 2011 Tuscon, Arizona 6 11 Single white male U.S. citizen, atheist, targeted U.S. Congresswoman and U.S. District Judge 9x19mm semi-automatic Glock handgun.
August 3, 2010 Manchester, Connecticut 9 2 Single black male U.S. citizen, religion uncertain Ruger SR9 semi-automatic handgun.
February 12, 2010 Huntsville, Alabama 3 3 Married female U.S. Citizen, evangelical Christian 9mm semi-automatic handgun.
November 5, 2009 Fort Hood, Texas 13 32 Single male U.S. Muslim Citizen of Palestinian descent (held rank of Major in US Army at time of shooting) exposed to and debatably inspired by Islamist groups FN “five-seven” semi-automatic handgun.
April 3, 2009 Binghamton, New York 14 4 Divorced male naturalized U.S. citizen of Chinese-Vietnamese origin, religion uncertain 9mm semi-automatic handgun, .45 caliber semi-automatic handgun.

If in this dreadful catalogue you wish to discern a pattern of shooters and weapons, I defy you to do better than “almost all the shooters are men” and “most of the weapons have semi-automatic firing mechanisms.” Indeed, if we were to look at the weapons used, I’d hazard an approximation that more handguns than rifles were employed by these shooters. Beyond that, I don’t see any particular pattern of ethnicity, religion, or race. The shooters look to me like a cross-section of men in America as a whole.

One thing that I can’t really quantify, even in a binary way, is how many of these shooters were mentally ill. Lots, I’m willing to bet, but in some cases the shooters are now dead and thus beyond diagnosis, and in other cases it’s not clear the degree to which actual mental illness as opposed to a buildup of stressors contributed to these murderers’ rampages. I’m not the first person to note that both our government and our culture are really not good at dealing with mental health issues. But I’ll also say that if you think you’re immune from them, or the people who live and work in your community are not going to suffer from them, you’re indulging in a profound delusion.

Nevertheless, the body count grows over time, and all the gun deaths cumulatively stop being tragedies, and start becoming statistics.

 

VI

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

United States v. Carolene Products Co., (1938) 304 U.S. 144, 155 & fn. 4.

So we’ve established that a) Constitutional rights are very important, b) gun ownership is a Constitutional right held by all citizens exercised by very large numbers of Americans with no problems at all, c) a small number of people really shouldn’t have access to guns but do, contributing to hundreds of not thousands of preventable deaths. Presumably, then, we will look to the government to regulate the exercise of this Constitutional right in such a way as to minimize the risks we all must suffer.

Laws regulating, controlling, or otherwise burdening the exercise of rights set out in the first ten amendments to the Constitution, as noted in the famous Carolene Products footnote four above, are subject to two kinds of protections. One applies to generalized rules, and is called the “strict scrutiny test.” The other applies to direct actions with respect to specific individuals, and is called “due process.”

If the government is going to make a rule, a regulation, a law, which prospectively affects everyone’s ability to do something, and that “something” is significantly related to an activity protected by the Bill of Rights, it must meet the “strict scrutiny” test.

There are two parts to the test:

  1. The governmental restriction of the fundamental right must be aimed at fulfilling a compelling governmental interest. “Compelling” is compared to other, less critical sorts of adjectives in different contexts; it is more than “important” and much more than “legitimate.”
  2. The governmental action must be narrowly-tailored, meaning that it must restrict the exercise of the individual right no more than is necessary to achieve the compelling governmental objective. The danger to the government here is overbreadth — if the effects of the policy restrict the exercise of individual rights in a way that does not fulfill the governmental interest, then it is not narrowly-tailored. Alternatively phrased, the governmental action must be the least restrictive means available.
funeral photo

This is why we’re talking about a compelling interest.Image by tomxcoady

In the context of a gun regulation, then, the proponent of a law restricting someone’s ability to buy, own, or make a gun available for use needs to prove that the law in question meets this test. The first prong seems pretty easy. It’s very difficult to say that protecting human life is somehow not a compelling governmental interest. I find it well nigh impossible after having spent the time to put together that awful chart.

So the legal action is going to be in the narrow tailoring, the least restrictive means prong. How will you restrict the rights of Dangerous Dude to get a firearm while allowing me, Trustworthy Law-Abiding Guy, to get one? How can you know, in advance, whether Burt Likko is a Dangerous Dude or a Trustworthy Law-Abiding Guy? The list of things that Justice Scalia broke out as appropriate arenas for reasonable restrictions in the Heller opinion are going to be the Constitutionally safest germs of ideas.

As you develop those ideas, bear in mind: Where and when will Burt Likko encounter these safeguards? How much time, and how much money, and how much bureaucratic effort, and how much intrusion on personal privacy, is it fair to make a Trustworthy Law-Abiding Guy navigate to exercise his right to keep and bear arms? Remember, the resulting system must be designed to restrict the rights of all those Trustworthy Law-Abiding Guys and Gals as little as possible, while still effectively filtering out the Dangerous Dudes and Dudettes.

That’s if you’re engaged in prospective, generalized policy, something we might call “rulemaking.” But there’s another way you might go. Maybe you’re thinking, “Hey, check out that Burt Likko. I think he’s a Dangerous Dude. Maybe he used to be a Trustworthy Law-Abiding Guy, but not anymore. Let’s make sure he can’t buy a gun, and if he has one, let’s find a way to take it away from him.” All you need is some neutral, otherwise-constitutional rule that lets you specifically apply, or “enforce,” your policy against me.

On the enforcement side, you can take away my rights and liberties — if you provide me with due process. Both the Fifth Amendment and the Fourteenth Amendment are explicit that a person shall not be deprived of a liberty interest without due process of law. What does this mean? In essence, here are the things that it boils down to:

  • Advance notice of the charge against, and typically of the penalties if the charge is proven.
  • An opportunity to present evidence relevant to the charge and question witnesses and evidence offered against me.
  • The ability to be represented and assisted by an attorney.
  • A fair hearing on the merits, before an impartial decision-maker, within a reasonable amount of time.
  • Often, but not always, a presumption of innocence and the burden of persuasion resting with the proponent of the restriction on my liberty.

Now, you might be able to prove that for a short time, I have to be relieved of my liberty interest because the danger is just too great. Restraining orders are the way that is typically done in my world. Restraining orders are temporary, and usually of short duration; there must be another hearing after I’ve had a reasonable chance to gather evidence and present my side of the story to see if that restraining order will remain in place.

Think about the most obvious sort of restriction on liberty: imprisonment. You can arrest and jail me for a short time, for some good reasons. I’m a flight risk. I’m dangerous. You need to gather information from my person. But you can’t keep me in prison for a very long amount of time, and indeed have to offer me reasonable bail. I get an arraignment, which tells me what the charges against me are. I get to hire a lawyer. That lawyer gets to cross-examine witnesses and go issue subpoenas to get favorable evidence. There’s an argument before a neutral court. And the prosecution has the burden of proof.

This is really important stuff. Due process is pretty much the whole reason we had the Revolution against Britain way back when. It is the fundamental mechanism protecting against the arbitrary exercise of power by the government. Inescapably, then, if we are going to take away the ability of a particular individual to exercise a fundamental right, we must afford due process to that person.

 

VII

Bad men need nothing more to compass their ends, than that good men should look on and do nothing.

John Stuart Mill

If the very public, very heart-rending deaths I listed in section V represent but one-tenth of one percent of the gun deaths in the United States,1 surely something needs to be done. Surely, something is wrong with our society having so many guns, everywhere, owned by so many people! For solutions to this problem, we look to our policymakers. What we see is this:

housesitin

In the late morning hours of June 22, 2016, about a half dozen members of the House of Representatives, led by Democrat John Lewis of Georgia, and Katherine Clark of Massachusetts, grew frustrated at Republican refusal to schedule a House vote on a bill called the Collins Amendment. This was a law proposed by Susan Collins, a Republican Senator from Maine, mirroring a policy proposal by presumptive Democratic Presidential candidate Hillary Clinton in the wake of the recent Orlando nightclub shootings. Specifically, Clinton proposed, and Collins would have legislated, that if a person were on the “No Fly List,” or the “Terrorist Watch List,” you would not be allowed to buy a gun. Informally it’s referred to as “No Fly, No Buy.”

Now, as I understand it, the Senate had been considering the Collins Amendment when Senator John McCain initiated a filibuster of the law. On June 22, a cloture motion failed, so the Collins Amendment was already a dead letter before anyone took the floor for Representative Lewis’ sit-in. That understanding may be flawed, so feel free to correct me if you have other information about what was going on in the Senate.

Ultimately about sixty Democratic lawmakers, including some Senators, sat down on the floor in the well of the House, or near it. I don’t know if any Republicans joined them, although Senator Collins herself might have. They wound up sitting there for about twenty-six hours before Speaker Ryan got an adjournment through despite the legislators’ repeated tweeting of pictures of themselves with the hashtag #NoVoteNoBreak.

It ultimately got pretty raucous. Republican leadership ordered the C-SPAN cameras turned off; Democrats responded by broadcasting their sit-in on Periscope. In theory, the leadership could have cut off the wi-fi, but didn’t. Following patterns set by the Senate during live speaking filibusters, staffers brought in food and blankets and pillows, and the number of Democrats refusing to conduct business grew. Well, sort of — they seemed to come to order for the Pledge of Allegiance and the invocation and some votes actually got through on other needful areas of legislative activity, like funding Zika virus interdiction and funding the Veteran’s Affairs Department, but the Democrats used paper voting to slow business down. Republicans and Democrats confronted one another; Louie Gohmert got into a shouting match with some of his Democratic counterparts about the responsibility of “radical Islam” for the gun violence; Don Young was just plain ornery and there was some shoving and shouting. Meanwhile, led by Lewis, the Democrats sang “We Shall Overcome” and called out the names of victims of the Orlando shooting.

Eventually, Speaker Ryan got an adjournment through all the noise and chaos, and one by one everyone went home. Congressman Lewis was the last to go.

Well, it was fine political theater. There was yelling, there was singing, there was pizza, there was name-calling and some tough-guy posturing on both sides. Gratefully, Speaker Ryan found a way to not physically eject a genuine civil rights hero from the floor of the Congress. And a lot of Democrats raised quite a bit of campaign money and I bet a lot of Republicans will wind up doing the same.

If you’re on the “No-Fly list,” no one tells you this. There are private entities that purport to know who’s on the list and who isn’t, but they don’t. The government keeps the names on that list secret. Maybe for a good reason, maybe not. If you somehow find out you’re on the “No-Fly list,” there does not seem to be any sort of mechanism by which you can get off it. Being on the “No-Fly list” restricts your ability to, as it sounds like, fly on an airplane and therefore it restricts your ability to travel freely from one state of the Union to another. This, by the way, is another fundamental Constitutional right, just like free speech, gun ownership, and due process. These three things are all the subject of at least three pending legal challenges, two of which are being quarterbacked by lawyers from the ACLU.

The Collins Amendment would piggyback another restriction on another Constitutional right on this already highly-questionable governmental practice. For this, Democrats have invoked some of their most sacred imagery and history.

Republicans and conservatives, many of whom until about Wednesday at 1:00 p.m. eastern time had made substantial political investments in things like demands that the government prevent Muslims from building houses of worship at their own expense on land that they own, who fearmongered their constituents with claims of incipient Sharia law in hotbeds of Muslim activism like Oklahoma, whose presumptive Presidential candidate has made a centerpiece policy platform of excluding Muslims (whether citizens or not) from entering the country; and who continue to lecture the rest of us on the moral imperative to physically torture Muslims suddenly began asking things like:

and pointing out irrelevancies:

So there’s silly political theater going on all around. Meanwhile, both the NRA and the ACLU opposed the Collins Amendment, which tells you something about just how Constitutionally questionable it really is.

 

VIII

It disgusts me, seeing our leaders and thinkers claim to be advocates of the public interest and the Constitution and really all that’s happening is grandstanding on social media. I suppose we could demand that our legislators act like grownups, but all available evidence is that this simply isn’t going to happen. Put me on record for a big ol’ BSDI on that one.

I’m left fantasizing about what responsible legislators might do. It’s a very difficult logical problem, how to square protecting the legitimate rights of law-abiding citizens with the need to protect against deadly gun violence.

Taking the Constitution seriously means admitting that the Second Amendment gives individuals the right to privately own guns. We can’t do something like what Australia did here. Nor can we get around the fact that people can get guns legally, easily, with no red flags going up, and then when their personal psychological circumstances change, a very small number of them are going to do things like what quite a lot of the shooters chronicled above did. Many more will find specific victims and many more will try to suicide.

As it is, I don’t see any choice for us, under our current laws, but to simply accept this and live with it. All of these things are crimes, of course, but simply making something illegal doesn’t mean it isn’t going to happen. Same-sex sexual encounters were once illegal. Drugs are still mostly illegal. And so is gun violence.

There are things on the Heller list of “reasonable restrictions” that we might try but haven’t. Requiring guns to be stored in safes at gun clubs, like they do in Switzerland, is one idea that I’ve heard and maybe it might help. Not sure if that would fly, but no one’s put it to the test. Not sure if it would work either, but again it’s something of a guess. Thing is, unless there’s a good and easy-to-spot reason to keep someone from buying a gun, our existing laws simply require that we not put really heavy, onerous restrictions on the ability of a person to get a gun. 99.9% of the time, that’s not a problem at all. It’s that .1% of the time that we’re worried about. The price that .1% extracts is so very much to bear.

If you’re really serious about reducing gun violence and you want to respect the Constitution, I’m afraid you’re going to have to do the hardest job of all. You need to amend the Constitution. And you need to do it in a way that respects the fact that a very high percentage of people really do own guns completely responsibly and peacefully. But no one is attempting this in any serious way so far as I can tell. For all his truly admirable history and good intentions, I don’t see Representative Lewis offering any amendments or repeals to this portion of the Constitution. I seem him leading what amounts to a meaningless political stunt, obviously futile from the start, that does not address the basic problem written into the law. Nor am I the only person, even on these pages, thoroughly unimpressed with this demonstration.

On the other side of the aisle, I don’t see a lot of good faith interest in trying to find ways to do things that the Constitution does allow to identify that .1% and keep them from murdering people. When the NRA opposes pre-purchase background checks, it’s difficult to take their claim to want to keep guns out of the hands of bad guys seriously. I don’t want to see the Second Amendment changed to really change anything for people who aren’t ever going to be problems with their guns. But if we’re going to move forward, we need to step beyond arguments about semantics and find a way to cut through the legal conundrum, in a way that is fair to a broad range of people of different interests and backgrounds.

Holy crap, we’re going to have actually talk to and listen to one another.

It’s so easy to despair here. No one seems to care about facts. No one seems to care about the law. Sloganeering is fun. Dialogue is boring and compromise is icky. Everyone is willing to wave around the Constitution when it seems to support their side; but when it gets in the way, it’s suddenly an irrelevancy. That sickens me.

Something needs to change. Amend the Constitution? Well, why not? We haven’t done it all in a generation and we haven’t meaningfully done it since I was an infant. Ultimately those who would use the law to reduce gun violence need to come to grips that there are such things as gun ownership rights — and those who want to exercise those rights need to come to grips with the fact that the law in its current form is not working for us, and we all need to do so in a way that respects the Constitutional process that we all claim to buy into.

Image by Program Executive Office Soldier Notes:

  1. Adding up the list, I find 239 dead and 249 grievously injured people. We can see that the CDC reports that there were 33,636 gun deaths (including suicides) in 2015, and “only” 40 of them appear on the heart-rending chart above. []

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Pseudonymous. Practices Law. Lives in Southern California. Editor-in-Chief of Ordinary Times. Homebrewer. Atheist. No Partisan Preference. Likes: respectful and intelligent dialogue, good wine, and puppies. Dislikes: mass-produced barley pop, magical thinking, and insincere people. Follow him on Twitter at @burtlikko, and on Flipboard at Burt Likko.

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263 thoughts on “Choosing A Side

  1. Yeah, no one wants to amend the constitution. Not for DC statehood, not for guns, not for drugs (note, alcohol required a constitutional amendment, but making pot and other drugs illegal didn’t) Do it the right way or not at all.

    Now, as to background checks/lists. At least in my state, there were extensive controls on buying weapons, now even more so. I once asked a guy about those controls going on 15 years ago. He said the state kept a list of all firearm owners so if the cops roll to an address it pops up on their computers. I have no idea if that’s the case at all, but I decided then that I didn’t want to be on the list any more than necessary. Given the data commercial companies have on the populace (circa 2005) to sell to law enforcement, not to mention the data the feds have, I have no interest adding to that database.

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    • They’d far rather get more profitable stuff from you.
      The only people I know keeping track of guns and stuff were explicitly looking for the paranoid gun enthusiasts. (and it wasn’t for selling to the government, of all people!)

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      • It was more of a WTF that all this info exists and is easily searched and is for sale to LEO. God knows what the Feds have. I have no desire to add, say my finger prints, to the mix.

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        • No idea what the police can or can’t access in the street but when Maryland law changed and I got my HQL I had to identify a regulated firearm purchased under the old regime to be grandfathered out of the training requirements. That supports the assertion that there is some list out there, though I’d imagine it’s kept by the state police. I share your worries that whatever it is could easily be abused.

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    • Yeah, no one wants to amend the constitution.

      I’m one step past that — IMO, no one can amend the Constitution. There are no potential changes of any significance that won’t have at least 13 states in opposition. So instead, we have to slice and dice words. Take last year’s Arizona v. Arizona ballot initiative case. While I was entirely in favor of the outcome, I hate that to reach its decision, the majority had to effectively redefine “legislature” to mean whatever voters in a state choose for their law-making process, not what the word has meant since the Constitution was adopted.

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        • Redefinition is exactly what happened in Second Amendment jurisprudence.
          Prior to 1970, it was generally accepted that the right to bear arms was a right held by the states.
          After about ten years of one of the most successful propaganda campaigns in history by the NRA, the individual right came to be accepted.

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          • So what does the 2nd amendment do if you get to nominate five justices? Just prevent the feds from disarming state militias, which don’t currently exist? Prevent the feds from disarming the national guard? That’s some Slaughterhouse Cases level limiting of the text.

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            • The Justices have a way of actively resisting being defined by the prominent litmus tests.
              Witness CJ Roberts upholding the ACA; Alito comes out as the soft-hearted animal lover on the court (And you know who else loved animals!); Kagan taking the textualist approach in Yates; etc.

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    • See, there’s no Second Amendment in Australia. So they can do stuff like that within their own laws.

      We aren’t in that position here. I’m honor-bound to say that a lot of the gun control proposals being floated now violate the Second Amendment or some other facet of the Constitution and thus oppose them. Thus, my urging that we seriously consider amending the Constitution — cautiously, wisely, and respectfully — but also effectively. I wish I had the language to proffer but I don’t, and it’s going to take dialogue between stakeholders to come up with it.

      It’s not a failure to support the Constitution to suggest that it might be improved through amendment. In some circumstances, advocating amendment may very well be the truest and best way to support the Constitution. I’ve concluded that until and unless we do so, we’re going to be trapped in this endless loop of a) mass killing b) political theater c) legal inactivity.

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      • (Also no first amendment, which I have rather more of a problem with).

        Could we do an “opt-in” trick with guns? Guns must be kept in a gun safe, unless you are on property specifically designated as “unlocked gun land”…[This will include hunting areas, target shooting ranges, and particular people’s private property].

        I’m okay with a bit of a fine if you’re caught in any other area with the gun out of the lockbox. Ten, Fifty bucks. Enough that you could draw if you thought you were in danger, but enough to disincentivize people from openly waving around the gun.

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      • I asked my Aussie relatives about this, and was told that. generally, anyone who wants a gun there can get one.
        Increasing the number of illegal firearms does not, to me, comprise a viable solution.

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        • I was just reading an article the other day on how the NSW PD took something like 9000 guns of the street over the last year or so, and it’s barely a dent.

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          • Our media does a very bad job at analyzing the experience in other countries. It trumpets the success of the measures in Australia and the UK without ever acknowledging the fact that these were countries that never had gun violence problems comparable to the US to begin with. They also seem to conveniently miss the stories you periodically see about how easy it remains to obtain an illegal firearm in major British cities. There was a story I recall from a few years ago where a British gun smith was converting replicas with relative ease then selling them for a few hundred pounds on the street.

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  2. Great piece.

    The one other avenue I see as very feasible is that Clinton is able to nominate enough judges to SCOTUS (that is, two) to overturn Heller. Which is a thing a lot of gun control advocates are counting on.

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      • If Garland gets on the bench, they probably don’t overturn (maybe) But the 4 that were in the minority/replaced those in the minority on both Heller and Citizens United I would bet want to grant cert on another case once they have the votes. (& especially if Roberts, Alito, and Thomas are the only GOP appointed judges left by the time Clinton leaves the White House)

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        • I agree with this. Garland, and likely alternative Srinivasan, are both pretty likely to say “Well, I’d have voted with Stevens on Heller but Heller is settled law by now so I won’t vote to overturn it. Let’s instead look at these carve-outs from the core holding that Scalia wrote about.” (Note that this leaves certain in-the-know gun rights activists condemning Antonin Scalia for being too squishy on the Constitution. Ten thousand spoons, rain on wedding day, etc.)

          So where I’d see gun control Constitutional litigation going on that future projection is down roughly the same path as abortion: the essential right remains in place, but over time the “reasonable restrictions” in Heller get carved a bit wider and a bit more reaching, case by case, over time, the same way the incremental “health and safety regulations” have effectively narrowed but not totally eliminated abortion rights.

          This, however, is only one of many possible future timelines. Another one is if after Clinton wins the election, President Obama withdraws the Garland nomination and says, “Well, the Republicans running the Senate said my successor should get to pick the next Justice, and I guess they’ll get their way,” which is a reasonably likely result if the Democrats take back the Senate. Then Clinton can pick someone more Ginsburg-like than the Breyer-like Garland, and who knows? Maybe Heller falls back in play.

          Or, if we get a black swan and President Trump follows through on his promise to outsource the selection of the next Justice to the Heritage Foundation, we wind up with someone like Raymond Gruender or William Pryor or Thomas Rex Lee. Then we’d be roughly back where we were when Scalia was still on the bench.

          Of course, in the near future we very plausibly can anticipate nominations of potential successors to Justices Kennedy and Ginsburg as well, so, um, yeah, I think whoever the winner of this Presidential election is kind of important.

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          • It seems to me they’re already going down the reasonable restrictions path with declining cert on the recent Connecticut gun case. (And I think they would have had 4 votes for cert had Scalia still been around)

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            • But the folks that brought Heller were looking to expand gun rights. Those same people are still on the look out for test cases, but now so are the people looking to restrict them. It is very much a mirror of Roe V Wade where it comes down to state legislatures repeatedly trying to test the limits of their authority, followed up by repeated challenges of that authority in court.

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      • It doesn’t need to overturn itself. Scalia’s opinion leaves plenty of room for all manner of burdensome regulations. I think Heller was probably a high water mark for the 2nd Amendment in constitutional jurisprudence that can ultimately be read very narrowly (i.e. the state cannot completely ban possession of handguns for self defense in one’s own home). The real fight will always be in state legislatures.

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        • It doesn’t need to overturn itself. Scalia’s opinion leaves plenty of room for all manner of burdensome regulations. I think Heller was probably a high water mark for the 2nd Amendment in constitutional jurisprudence that can ultimately be read very narrowly (i.e. the state cannot completely ban possession of handguns for self defense in one’s own home).

          This is exactly how I feel.

          You have a right to home defense. You have a right to self defense. You have a right to hunting.

          The government cannot impose absurd restrictions on those, and have to let you use ‘common’ methods of that.

          There is literally nothing in there that would require allowing assault-style weapons. Hell, there’s nothing in there that would require allowing *semi-automatic* rifles.

          Reading the decisions, a lot of the decision seemed to be pointedly aimed at the fact that people have to be able *afford* those things, and the DC government, in banning *handguns*, took away the cheapest method. (And made the other methods unworkable.)

          And thus a lot of DC vs Heller seems to fall apart if the government goes after the *most expensive* methods, aka, the goddamn stupid status symbol AR-15s and other super-expensive moddable guns.

          Likewise, what would happen if a government barred all handguns with extendable mags or that held more than 7 bullets, or even made people use revolvers…but provided *a free trade* in for existing handgun to such a handgun? And subsided new purchasers?

          Yes, yes, I’m not sure of what you get if you had a time machine and put that *in front* of the Dc vs. Heller court, but I suspect if you put it in front of a *future* court, they’d happily drive straight through that opening, that your constitutional right to self defense/home defense can be satisfied via *government issued* weapons and all others can be banned.

          And hunting is a whole different thing. Hunting is *already* regulated, and can only take place in certain locations at certain times, so it’s entirely reasonable to have *hunting* weapons remain under lock and key until they can be used.

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          • I’m not following you. My point was only that Heller probably isn’t the watershed for gun rights its occasionally portrayed as, nothing more. Most intelligent gun owners have already caught on to that.

            That there’s no principled distinction between a ‘hunting’ weapon and an ‘assault style’ weapon was explored pretty thoroughly on the other thread. I also don’t see what the proposed handgun trade in program would accomplish.

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              • Fair point. I was thinking in terms of power/shooting functionality. As I gather from your posts you know the magazine issue isn’t just these types of rifles, since it includes most handguns. I look at those as separate matters for purposes of this discussion because they’d be separate laws or separate parts of the same law.

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            • My point was only that Heller probably isn’t the watershed for gun rights its occasionally portrayed as, nothing more. Most intelligent gun owners have already caught on to that.

              Seems to me you’re referring to an enormously small constituent group there. I think the word “intelligent” is doing a lot of work. Like, limiting the pool of intelligent gun rights activists to those who think Heller wasn’t a watershed for gun rights.

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              • I can only speak anecdotally on that. I would just say I find there is a difference between what gets said in debates about gun control and what’s said after a day at the range or driving home from the gun show. The sentiment I run into most is that more court cases are at best, a very risky prospect.

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            • That there’s no principled distinction between a ‘hunting’ weapon and an ‘assault style’ weapon was explored pretty thoroughly on the other thread.

              In the same way there’s no principled distinction between ‘clothing’ and ‘cosplay’, in that no one could actually make any rules that would be able to clearly draw a line. But, regardless, there clearly is some sort of psychological difference, a difference in how we think about them.

              However, what you might not have noticed is that I *didn’t* use the term assault weapons. I said ‘assault-style weapons’. As I said elsewhere, I am talking about the modable, expensive types of guns, like AR-15s, that *actually are not the best guns for any legitimate exercise of rights*.

              I’ve gone into detail about that before, but let me just summarize: Those types are gun are insane for home defense. They are insane for self defense. They are really crappy choices for hunting, and actual hunters will mock you. Yes, you can *use* them for those things, but there are much better, and cheaper, choices.

              Those guns are purchased, and maintained, in what, in the most charitable interpretation, is a *hobby*. They are not used to exercise any right at all.

              And there aren’t any constitutional rights to a hobby.

              Think of it as time and place regulations for speech. Sure, you have freedom of speech, and sure, you might *want* to do that right in the library, but, uh, you can’t do that. The government is perfectly in their rights to insist you stand outside while free-speeching. Likewise, you have a right to home defense, but the government is perfectly within their rights to demand the thing you’re allowed to own to exercise that right *won’t spray bullets through the wall*.

              I also don’t see what the proposed handgun trade in program would accomplish.

              There actually *is* a ‘pattern’ in that list above, although it’s kinda built into the concept of ‘mass shooting’ so it’s hard to see. That pattern is: A lot of bullets were fired. That’s it. That’s the pattern.

              The entire point of what I just listed was reducing the amount of shots without reloading, and decreasing reload speed. So everyone gets the *slowest* possible weapon. (They should be lucky I’m not requiring bolt-action rifles.)

              There are exactly *two* entities on that list that *could* have have been done with a six-shooter revolver. (Barring weirdness like one bullet hitting two people.) And that’s somewhat nonsense, as if we assume that, statistically, at least one-third of shots miss, then literally *none* of those shootings could have been done with a six-shooter. None.

              Now, admittedly, sometimes those mass shooters have a lot of guns. Like that Seal Beach shooting had ‘9mm semi-automatic handgun, .45 caliber semi-automatic handgun, .44 magnum revolver handgun’, and managed to shoot 9 people. The Roseburg, Oregon shooter shot 18 with ‘multiple handguns’.

              So, yes, if the only gun are six-shooter revolvers, five-shot rifles without an expandable magazine, and double barrel shotguns, none of which can be reloaded quickly *at all*, presumable people will carry more of them, but that quickly gets extremely unwieldy! The maximum is probably somewhere around…five total guns?

              That’s a grand total of…30 bullets.

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              • First, I appreciate you laying that out and I think I see where you’re coming from now. I’m going to start by saying I disagree with you on a fundamental principle; that being that mass shootings should be the basis for whatever regulatory scheme is put in place around firearm ownership. Despite the media attention they’re still very rare, and very unrepresentative of what gun violence looks like in America. For me, you’re already starting in the wrong place.

                Regarding assault-style weapons, your opinion about its legitimacy for any given activity is just that, an opinion. I won’t deny that there are people out there who fetishize guns positively who are particularly attracted to the aesthetic, just as I think there are people who fetishize guns negatively who are particularly repulsed by it.

                The AR platform is popular because of its reliability and ease of customization. There are plenty of legitimate activities from target shooting to hunting small game you can use them for. I don’t hunt but I have heard the same sentiment from old school hunters, that using those types of rifles is silly. They are entitled to their opinion but, again, I don’t think any distaste that may or may not exist among a certain cohort of hunters is the sound basis for the policy.

                Regarding self-defense, I would respectfully disagree that these rifles have no place in that role. Just over a year ago Baltimore was consumed in protests and riots due to the death of Freddie Grey (for what it’s worth my sympathies were with the protesters but there were quite a few instances of random violence and destruction). In those types of situations an assault style weapon is well suited for defense of self, home, and property. Yes, civil unrest on that scale is very rare (and I don’t think that’s the only time an AR would be useful for self-defense), but then so are the mass shootings that you’d base your gun control regime around trying to prevent.

                On the issue of rate of fire, I think your position contradicts your implicit belief that self defense is a legitimate reason for firearm ownership. I don’t see how you can say it’s legitimate for a person to have a weapon to defend themselves, but then also say that the only ones they should be able to legally obtain are those with slow rates of fire and minimal ammunition capacity, i.e. those that aren’t necessarily best suited to the purpose. There’s also the more basic issue, of how we get there from here given the large number of semi automatic weapons in circulation and the capacity to create semi automatic weapons using 3-D printing technology. To me, any regime that doesn’t have a good answer for that, isn’t workable, regardless of whether or not is constitutional.

                On the issue of preventing mass shootings, and what might or might not have happened in a particular incident if we exchanged the weapons used by the killer for others, I see that as all speculation. Maybe the person only had revolvers but was able to do similar damage by becoming good with speed loaders. Maybe the person did something with explosives. Maybe there’s no change at all because the person was able to obtain the exact same weapon on the black market (those AK-47’s in the Paris attack last year came from somewhere, after all). This is already a huge post so I don’t want to delve much further but I think we’re barking up the wrong tree when we mistake the means of causing mass murder for the reason episodes of this nature occur.

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                • @whoso-lists-to-hunt:

                  This is mostly off-topic, but this reminded me of a question I’ve often had:

                  The AR platform is popular because of its reliability and ease of customization. There are plenty of legitimate activities from target shooting to hunting small game you can use them for. I don’t hunt but I have heard the same sentiment from old school hunters, that using those types of rifles is silly.

                  Are semi-automatic or automatic weapons more useful for hunting if your main objective is to actually get something for food? I mean, I can understand how some hunters might enjoy the “sport” of using regular rifles. But if it’s an issue of actually getting a kill for food, it seems to me that semi or fully automatic gun would work better or be more efficient. But am I wrong?

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                  • But if it’s an issue of actually getting a kill for food, it seems to me that semi or fully automatic gun would work better or be more efficient. But am I wrong?

                    With an exception for shotguns and birds, you’re wrong. But then, I fell under the influence of my Depression-era Grandpa Cain at an impressionable age. He was a firm believer that a single-shot bolt-action rifle made you a better hunter (which, during the Depression in that part of Iowa, could be the difference between having meat on the table or not). Better at field craft, better at stalking, more patient, and a better marksman. All of which improved your chances of bringing home a deer, or a day limit of squirrels, more than having a second shot instantly available.

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                    • You’ll notice, if you look at them, most semi auto hunting rifles that the included box magazine is 5 rounds.

                      If you haven’t hit your target long before the magazine runs dry, you suck at hunting, & your game is so far out of your sight picture it might as well be in another county.

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                • I’m going to start by saying I disagree with you on a fundamental principle; that being that mass shootings should be the basis for whatever regulatory scheme is put in place around firearm ownership.

                  The guns that actually cause deaths are *handguns*.

                  You will notice I also talk about limiting those.

                  The AR platform is popular because of its reliability and ease of customization. There are plenty of legitimate activities from target shooting to hunting small game you can use them for.

                  Customization of weapons is not a constitutionally protected activity.

                  And there are plenty of ‘reliable’ guns. In fact, the word ‘reliable’ is sorta stupid there. Almost all modern guns are 100% reliable *by themselves*, reliability just becomes an issue in bad circumstances, like dirt or water getting in. That is really only relevant to hunting, so see below. And, regardless, there are plenty of reliable guns. Revolvers, for example, are known for pretty damn reliable as a general class, as are bolt actions. The AR platform is reliable *for a semi-automatic rifle*, which are *not* (Or, at least, were not at one time.) generally reliable as a class.

                  Target shooting is not a constitutionally protected activity. There is a logical argument that you have a right to practice shooting any weapon you can use in a constitutional context, but there is no right to enjoy a day at the gun range with a gun you can’t use in other contexts. (That said, I have no actual objection if *gun ranges* own such weapons and let people play with them.) Target shooting adds no rights to any specific weapon.

                  And hunting, while included as activities that might be constitutionally protected…well, there’s never been *any* decision that actually confirmed that, but, just as relevantly, it’s been *long held* that not only can governments regulate that, but they can even regulate the type of *weapon* used. There are bow hunting seasons, black powder muzzle loaders seasons, etc, and there are guns (Well, calibers) that are outright banned from being used in hunting despite being otherwise legal.

                  If there is some sort of constitutional right to hunting with guns, it appears very *very* narrow as it currently exists. There’s certainly not any right to hunt with a specific type of gun that’s ever been established by the court.

                  Regarding self-defense, I would respectfully disagree that these rifles have no place in that role.

                  People should feel free to use rifles for that. What they shouldn’t feel free to use is rifles with detachable magazines.

                  In those types of situations an assault style weapon is well suited for defense of self, home, and property.

                  Considering it is *literally not legal* to shoot at people to defend property in Baltimore (Or, really, anywhere. Sometimes you’re allowed to brandish a weapon at people, but nowhere, not even Texas, allows you to actually shoot people who are running down the street with your TV.), I find this statement baffling.

                  And, no, as I have pointed out, assault-style weapons *should not be fired in homes*, at least not if there’s anyone else nearby that you *don’t* want to shoot.

                  Likewise, I do not understand how you think they work for ‘self-defense’, by which is traditionally meant ‘walking down the sidewalk’ or ‘sitting in McDonalds’. No, an assault rifles will not come in handy there. Even if that was considered perfectly normal and didn’t cause any sort of problem with surrounding people…the only way to carry a *rifle* is strapped to your back, which renders it *much harder to use* than a handgun.

                  On the issue of rate of fire, I think your position contradicts your implicit belief that self defense is a legitimate reason for firearm ownership. I don’t see how you can say it’s legitimate for a person to have a weapon to defend themselves, but then also say that the only ones they should be able to legally obtain are those with slow rates of fire and minimal ammunition capacity, i.e. those that aren’t necessarily best suited to the purpose.

                  You’re only allowed to use deadly force when people are an actual threat, and you have to stop when they aren’t anymore.

                  Which means, yes, you’re *supposed* to actually judge if they are a threat *between* your use of force.

                  The question isn’t how having a slow rate of fire is legal to restrict people, the question is actually ‘How the hell is it legal for someone to unload an entire 10-bullet magazine into someone, even in self-defense?’. That is not how self-defense is supposed to work.

                  There’s also the more basic issue, of how we get there from here given the large number of semi automatic weapons in circulation and the capacity to create semi automatic weapons using 3-D printing technology. To me, any regime that doesn’t have a good answer for that, isn’t workable, regardless of whether or not is constitutional.

                  …not sure why you’ve started talking about ‘semi-automatic weapons’ all the sudden. While revolvers (for some reason) are often excluded from being called semi-automatic, I did mention I don’t have a problem with rifles with internal, smallish magazines.

                  Anyway, 3D printed weapons are nonsense, because *plastic* weapons are nonsense. They are more a danger to the user than anyone else.

                  Maybe the person only had revolvers but was able to do similar damage by becoming good with speed loaders.

                  No speed loader can *possibly* beat even slightly skilled people with quick-detach magazines. It’s like saying ‘If you ban cars, people will just get really good with bikes’. Well, yes, some people are *really* good with bikes…and any idiot who knows how to operate a car can still go faster.

                  Maybe the person did something with explosives.

                  You may have noticed that large bombings have completely vanished. This is due to the BATFE doing their job, which they started doing in earnest after the bombings of the mid 90s. The last ‘successful’ bombing had to use dumbass pressure cookers, the shittiest bombs ever, but the only ones they could get, and they managed to kill just one and half person per bomb, despite the bombs being in a crowd of people. Those were, in terms of killing power, statically placed *grenades*, not ‘bombs’.

                  Maybe there’s no change at all because the person was able to obtain the exact same weapon on the black market (those AK-47’s in the Paris attack last year came from somewhere, after all).

                  The black market in weapons is not some magical place where weapons appear out of thin air. Most of them, in the US, are stolen, and thus the black market in the US consists of legal guns being sold illegally. Moreover, the black market gets rather tetchy about supporting obvious terrorists and mass shooters. Someone they don’t know shows up, they’re perfectly fine selling them some stolen, legal, handgun. They are somewhat more dubious about selling them an outright illegal weapon that is obviously going to be used to shoot up a place. Not out of any moral grounds, but because that risks their entire business.

                  In fact, looking at the evidence, this is obvious. Howso? Because there are almost no *fully automatic* weapons on the streets of the US. Those are illegal, so they don’t get stolen, and would have to be smuggled in or hacked from existing weapons, and being outright illegal, they are way hotter than the black market wants to deal with.

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                  • Customization of weapons is not a constitutionally protected activity.

                    I’ve never argued that it was, nor did I say hunting and target shooting were. This was in response to your implication that rifles on an AR platform are useless for any legitimate purposes. The contours of what activities involving firearms are constitutionally protected will probably be developing for years as courts interpret Heller and McDonald. If your point was just that there’s no clearly established constitutional right to own an assault style weapon then I agree, no court to date has gone that far, and with the current federal court decisions I’m aware of I don’t think they ever will. That doesn’t mean that bans are effective or desirable.

                    People should feel free to use rifles for that. What they shouldn’t feel free to use is rifles with detachable magazines.

                    Why that arbitrary distinction? Is a person any less shot if they’re shot with a magazine loaded handgun? A revolver? A shotgun?

                    Considering it is *literally not legal* to shoot at people to defend property in Baltimore (Or, really, anywhere. Sometimes you’re allowed to brandish a weapon at people, but nowhere, not even Texas, allows you to actually shoot people who are running down the street with your TV.), I find this statement baffling.

                    I should have been more specific. The context is a business about to be destroyed, in certain instances attached to homes. I agree that it is not legal anywhere I am aware of to shoot someone running away with stolen property.

                    And, no, as I have pointed out, assault-style weapons *should not be fired in homes*, at least not if there’s anyone else nearby that you *don’t* want to shoot.

                    No guns should ever be fired in a home and if you’re at the point where that is happening then obviously things have gone terribly wrong. However what gun precisely is it that you could never miss your target with or which couldn’t theoretically go through dry wall or hit another person? Some ammunition is safer than others (at least in terms of going through walls) but there’s no sure thing. There is nothing unique about assault style weapons in this regard.

                    Likewise, I do not understand how you think they work for ‘self-defense’, by which is traditionally meant ‘walking down the sidewalk’ or ‘sitting in McDonalds’. No, an assault rifles will not come in handy there. Even if that was considered perfectly normal and didn’t cause any sort of problem with surrounding people…the only way to carry a *rifle* is strapped to your back, which renders it *much harder to use* than a handgun.

                    I’m talking about assailants in your home or on your property. Whether or not they’re practicable in other situations is something that could be argued forever but carbines are built with close quarters in mind. Also this issue about other people in the area is hardly unique to these weapons so I don’t know why you keep repeating that. Anyone can miss and harm a bystander with any gun. Just ask the police.

                    You’re only allowed to use deadly force when people are an actual threat, and you have to stop when they aren’t anymore.

                    Which means, yes, you’re *supposed* to actually judge if they are a threat *between* your use of force.

                    The question isn’t how having a slow rate of fire is legal to restrict people, the question is actually ‘How the hell is it legal for someone to unload an entire 10-bullet magazine into someone, even in self-defense?’. That is not how self-defense is supposed to work.

                    This is contrary to what any person trained in self defense will tell you. You shoot the assailant until the assailant is no longer a threat. There is a point under the law where it becomes illegal to continue to use force against a person who was a threat but is no longer. I am unaware of any law (at least in my home jurisdiction) that requires a person to pause and re-evaluate after every shot fired in self-defense.

                    …not sure why you’ve started talking about ‘semi-automatic weapons’ all the sudden. While revolvers (for some reason) are often excluded from being called semi-automatic, I did mention I don’t have a problem with rifles with internal, smallish magazines.

                    I’m talking about them because your original proposal (while admittedly leaving room for ambiguity on this point) suggested banning all handguns except for revolvers. Revolvers are not considered semi-automatic. My point was that signing legislation into law wouldn’t make all of the semi-automatic handguns out there disappear. As for the 3D printing technology, give it some time. There already are weapons out there that are built largely from plastic.

                    No speed loader can *possibly* beat even slightly skilled people with quick-detach magazines. It’s like saying ‘If you ban cars, people will just get really good with bikes’. Well, yes, some people are *really* good with bikes…and any idiot who knows how to operate a car can still go faster.

                    I’m not talking about in a gun fight. I’m talking about a mass shooter, doing what mass shooters do. Go to places with large masses of unarmed people and start shooting them.

                    You may have noticed that large bombings have completely vanished. This is due to the BATFE doing their job, which they started doing in earnest after the bombings of the mid 90s. The last ‘successful’ bombing had to use dumbass pressure cookers, the shittiest bombs ever, but the only ones they could get, and they managed to kill just one and half person per bomb, despite the bombs being in a crowd of people. Those were, in terms of killing power, statically placed *grenades*, not ‘bombs’.

                    I think this assertion is meaningless because it’s impossible to prove or disprove. It’s like saying that we haven’t had another 9/11 style attack involving commercial airliners because the TSA has really gotten their act together. No one knows that. It’s entirely possible that the lack of bombings in the United States is a combination of the fact that there just aren’t that many lunatics out there and blind luck.

                    The black market in weapons is not some magical place where weapons appear out of thin air. Most of them, in the US, are stolen, and thus the black market in the US consists of legal guns being sold illegally. Moreover, the black market gets rather tetchy about supporting obvious terrorists and mass shooters. Someone they don’t know shows up, they’re perfectly fine selling them some stolen, legal, handgun. They are somewhat more dubious about selling them an outright illegal weapon that is obviously going to be used to shoot up a place. Not out of any moral grounds, but because that risks their entire business.

                    In fact, looking at the evidence, this is obvious. Howso? Because there are almost no *fully automatic* weapons on the streets of the US. Those are illegal, so they don’t get stolen, and would have to be smuggled in or hacked from existing weapons, and being outright illegal, they are way hotter than the black market wants to deal with.

                    Like I said before, this is right down the rabbit hole of speculation. I guess no one knows what that black market would look like, and maybe you’re right, there would be some sort of honor among illegal arms dealers regarding who they’re willing to sell to. However that contradicts the experience other countries have with much stricter gun laws. All you have to do is google UK or Australia illegal arms trade. There are plenty of people in those countries who are willing to sell firearms that are completely illegal to whoever has the money. I don’t see any reason to believe that they somehow know the intentions of every person they sell to, or that it would be different here.

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                    • Is a person any less shot if they’re shot with a magazine loaded handgun? A revolver? A shotgun?

                      The *seventh* person is ‘less shot’ if the shooter is shooting with a gun with only six bullets.

                      However what gun precisely is it that you could never miss your target with or which couldn’t theoretically go through dry wall or hit another person?

                      Well, *shotguns* (Firing shot) don’t go through drywall, at least not any reasonable manner. In theory, if you hold them right against the wall and shot, they would make a hole in the other side, and if someone was literally leaning against that wall, they *could* be injured, but practically speaking, from any logical distance you might accidentally hit a wall while aiming at someone (Call it five feet), shotguns do not go through walls.

                      However, I keep saying the term ‘high velocity small caliber’, and for someone who seems to know a lot about guns, you keep sorta skimming over me saying that.

                      While slower, larger bullets *can* go through walls, they lose more momentum, and are more likely to start tumbling and causing less damage. High velocity smaller caliber just cuts straight through them.

                      On top of that…these sort of rifles also are basically *designed* for people to fire repeatedly, very quickly. They have less recoil, they have less trigger tension, they are designed that you can fire more shots than with a traditional rifle. A traditional rifle, a 308 for example, you aim it, you pull the trigger, the person is down before you can aim the thing again and fire. With AR-15 style rifles, you pull, pull, pull, pull, pull, and you’ve put two bullets in them and three through a wall.

                      I’m talking about assailants in your home or on your property.

                      That is called ‘home defense’, not self defense. We have two specific terms here for a *reason*, and, no, we’re not going to keep saying ‘self-defense (outside the home)’. That’s what ‘self defense’ meant in the surpreme court decision, it’s what it means here. Inside a home, it’s ‘home defense’.

                      I’ll assume you’re conceding my point that rifles are pretty stupid for *self* defense, as opposed to home defense, because you can’t actually carry a rifle around ready to go.

                      This is contrary to what any person trained in self defense will tell you. You shoot the assailant until the assailant is no longer a threat. There is a point under the law where it becomes illegal to continue to use force against a person who was a threat but is no longer. I am unaware of any law (at least in my home jurisdiction) that requires a person to pause and re-evaluate after every shot fired in self-defense.

                      Only because we have created devices that shot so quickly that people don’t have to. Which is, as I pointed out, entirely counter to the idea of self-defense.

                      The law does not say you have to pause. However, the law could easily say ‘You have a use a weapon that *forces* you to pause.’. Or, rather, not only could it say that, it actually should, if we believe in what we’ve said about self-defense.

                      My point was that signing legislation into law wouldn’t make all of the semi-automatic handguns out there disappear.

                      …and?

                      As for the 3D printing technology, give it some time. There already are weapons out there that are built largely from plastic.

                      ‘Largely’ because 90% of a gun is, in fact, a grip for people to hold. Asserting we’ll be 3D printing them is like asserting that because a flash drive is mostly plastic, we’ll be 3D printing those soon. No, we won’t, because they have a crucial bit that *isn’t* plastic.

                      If it was possible to make guns entirely out of plastic, criminals would *already make them*, to get them through metal detectors. They would have been doing this for *decades*. Forget crappy 3D printed ones, they’d be making them out of plastic molds and whatnot.

                      I think this assertion is meaningless because it’s impossible to prove or disprove.

                      Erm, no, that’s pretty much what everyone who looks at the issue says: Explosives are much much harder to get than they used to be, and you are very likely to trip over the BATFE while getting them. I’m not going to bother to argue with you over this, but if you think criminals can just switch to explosives, you are wrong…in addition you’re, weirdly, being deliberately stupid, because we both know, and have already said in this discussion, the *actual* problem is normal gun violence of individuals being shot in the streets, not mass shooters. Random gangbangers aren’t going to switch to explosives!

                      Even if the crazy shooters switch to explosives…explosives are, fundamentally, a crappier way to kill people than guns unless you have enough to bring down an entire building. (Again: Two bombs in the Boston Marathon Bombing. In a crowded place. Literally *three* people dead. They could have killed more with a frickin bolt-action weapon.)

                      I guess no one knows what that black market would look like, and maybe you’re right, there would be some sort of honor among illegal arms dealers regarding who they’re willing to sell to.

                      I didn’t say anything about ‘honor’. They don’t want to be involved in mass shootings or terrorism because the police will *track them down and arrest them*. A handgun used in a crime, shrug, could have gotten to the criminal any way. An assault rifle….maybe spend the time tracking that down. An *actually illegal weapon*. Yes. Track that down.

                      But more to the point, illegal weapon dealers sell *legal* weapons. Guns that were either stolen, or purchased from people who stole them, or, hell, purchased entirely legally until that point. But the existence of the weapon is, itself, legal, and it’s often ‘legal’ for the dealer to own. (Well, it might be stolen property, but that’s a much lesser charge than an actual unlawful weapon.)

                      That is what they *do*. That’s how they operate, and they don’t go outside that. You cannot, for example, buy hand grenades. As I pointed out, you can’t buy automatic weapons. You can’t buy RPGs. Yes, in theory, there *are* illegal weapons dealers selling those…and they’re 0.001% of the dealers. They’re the guy that the street guy has to talk to some other guy to maybe see if they can track something down, and it takes a couple of days, and you have to be pretty trusted.

                      You are postulating that the market would *change* to operating either manufacturing or smuggling, as opposed to just continuing to sell *legal* weapons to people who are not allowed to have them. No. The black market is perfectly happy making money off selling handguns to felons, and will happily switch to selling revolvers to felons if that’s all they can get.

                      All you have to do is google UK or Australia illegal arms trade. There are plenty of people in those countries who are willing to sell firearms that are completely illegal to whoever has the money.

                      Um, I just googled ‘Australia illegal arms trade’, and *I* got articles like this:
                      http://www.ibtimes.com.au/cost-illegal-firearms-australia-has-skyrocketed-criminals-now-do-gun-sharing-1378871

                      Ownership of guns is down so much, and they are so hard to get, that criminals are now forced to *share* guns. The cost of guns has *doubled*.

                      Please note that’s after only 15 years of gun control.

                      (‘uk illegal arms trade’, OTOH, seems to have *no* articles about criminals in the UK having guns, because everyone there is talking about illegal arms trade with Saudi Arabia.)

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                      • The *seventh* person is ‘less shot’ if the shooter is shooting with a gun with only six bullets.

                        I get that in a mass shooting situation something that is slower to reload and/or has lower capacity might (and I stress might) in some circumstances result in a lower body count. However, because we’re in agreement that mass shootings really shouldn’t govern how we look at this, I don’t see how that’s relevant to what a person can legally purchase for self defense. The self and home defense issue is what I was responding to.

                        Well, *shotguns* (Firing shot) don’t go through drywall, at least not any reasonable manner. In theory, if you hold them right against the wall and shot, they would make a hole in the other side, and if someone was literally leaning against that wall, they *could* be injured, but practically speaking, from any logical distance you might accidentally hit a wall while aiming at someone (Call it five feet), shotguns do not go through walls.

                        However, I keep saying the term ‘high velocity small caliber’, and for someone who seems to know a lot about guns, you keep sorta skimming over me saying that.

                        While slower, larger bullets *can* go through walls, they lose more momentum, and are more likely to start tumbling and causing less damage. High velocity smaller caliber just cuts straight through them.

                        On top of that…these sort of rifles also are basically *designed* for people to fire repeatedly, very quickly. They have less recoil, they have less trigger tension, they are designed that you can fire more shots than with a traditional rifle. A traditional rifle, a 308 for example, you aim it, you pull the trigger, the person is down before you can aim the thing again and fire. With AR-15 style rifles, you pull, pull, pull, pull, pull, and you’ve put two bullets in them and three through a wall.

                        I think where we differ is on how much the issue of penetrating a wall matters when we’re talking about what should be permitted for home defense. By the time we’re at a point where deadly force is legally justified we’re already talking about a very dangerous situation.

                        I also think you’re discounting why it is people would want a high velocity, small caliber weapon for home defense. It’s precisely because you can get those multiple shots off to stop your assailant in a platform that’s easy to wield. To me that’s a feature, not a bug.

                        I’ll assume you’re conceding my point that rifles are pretty stupid for *self* defense, as opposed to home defense, because you can’t actually carry a rifle around ready to go.

                        Would it be practicable for me, and where I live, and the types of threats that may or may not be out there? No, it’s not something I would chose, but my life isn’t everyone’s life and my circumstances aren’t everyone’s circumstances and I am therefore hesitant to say that it would never be reasonable. I’m also probably the wrong person to ask. Even if I lived somewhere that it wasn’t nearly impossible to carry a handgun legally for self defense it’s not something I have any desire to do.

                        Interestingly, in Maryland it’s legal to openly carry a long rifle but very difficult to obtain legal permission to carry a handgun so under the law in my state there are times where a long gun could be your only option if you feel you really need something.

                        Only because we have created devices that shot so quickly that people don’t have to. Which is, as I pointed out, entirely counter to the idea of self-defense.

                        The law does not say you have to pause. However, the law could easily say ‘You have a use a weapon that *forces* you to pause.’. Or, rather, not only could it say that, it actually should, if we believe in what we’ve said about self-defense.

                        On this we’ll just have to disagree. I think that being able to get those shots off could be essential for self or home defense. Trying to force a slower rate of fire on people who are lawfully using deadly force is not a worthwhile trade-off for me.

                        ‘Largely’ because 90% of a gun is, in fact, a grip for people to hold. Asserting we’ll be 3D printing them is like asserting that because a flash drive is mostly plastic, we’ll be 3D printing those soon. No, we won’t, because they have a crucial bit that *isn’t* plastic.

                        There are already companies out there working on this. Just because they might never match up to a firearm with metal parts doesn’t mean they’ll never get to something capable of firing a few hundred rounds before coming apart.

                        Erm, no, that’s pretty much what everyone who looks at the issue says: Explosives are much much harder to get than they used to be, and you are very likely to trip over the BATFE while getting them. I’m not going to bother to argue with you over this, but if you think criminals can just switch to explosives, you are wrong…in addition you’re, weirdly, being deliberately stupid, because we both know, and have already said in this discussion, the *actual* problem is normal gun violence of individuals being shot in the streets, not mass shooters. Random gangbangers aren’t going to switch to explosives!

                        I think we might be getting into a disconnect because of the numerous topics. My reference to explosives was only about your reference to a mass shooter limited to revolvers and/or very low capacity magazines. I don’t think that explosives would ever be used in what we (sadly) would have to classify as routine criminal violence. I think it might be something that someone determined to cause mass murder for political reasons or due to their own insanity would explore.

                        Regarding the government, to me that’s just an appeal to authority. Of course they say they’re successful at what they do, and maybe they are but no law enforcement protocol is going to catch everything.

                        I didn’t say anything about ‘honor’. They don’t want to be involved in mass shootings or terrorism because the police will *track them down and arrest them*. A handgun used in a crime, shrug, could have gotten to the criminal any way. An assault rifle….maybe spend the time tracking that down. An *actually illegal weapon*. Yes. Track that down.

                        I don’t think I’m the one postulating that the market would change. If the guns they’re selling now that are legal generally but illegal for the particular purchaser become illegal the black market is not going to just stop dealing in those weapons.

                        Regarding Australia and the UK, I don’t want to get too much into link trading (I’m not Australian or British so all information is limited to what I happen to come across), but contradicting the success stories you do also see stuff like this:

                        http://thenewdaily.com.au/news/2015/11/10/australias-secret-gun-problem-exposed/

                        http://www.dailyrecord.co.uk/news/scottish-news/police-reveal-277000-guns-scotland-6529023#FjdEvHzmtOFK6FEz.97

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                        • I also think you’re discounting why it is people would want a high velocity, small caliber weapon for home defense. It’s precisely because you can get those multiple shots off to stop your assailant in a platform that’s easy to wield. To me that’s a feature, not a bug.

                          Lots of people want stupid things. See my ‘We don’t allow people to exercise their constitutional right to free speech by blocking a sidewalk’ comment.

                          There are already companies out there working on this. Just because they might never match up to a firearm with metal parts doesn’t mean they’ll never get to something capable of firing a few hundred rounds before coming apart.

                          As I said, there have been ‘companies working on this’ for decades.

                          Regarding the government, to me that’s just an appeal to authority. Of course they say they’re successful at what they do, and maybe they are but no law enforcement protocol is going to catch everything.

                          The almost complete lack *of* bombings is not proof the government has been successful in stopping bombings?

                          I’m a little baffled at this direction of argument. Bombings have *clearly* gone down. You seem to be asserting that people have moved from mass bombings to mass shootings for…no reason?

                          Well, okay. Even if that is so, I fail to see how that should change anything about trying to have gun control.

                          Even if, with less guns, everyone can just *move back* to bombings, bombings are objectively less dangerous than mass shootings….most of them utterly fail unless there is a *lot* of explosives or a *lot* of planning. Usually both. (Like Oklahoma City.)

                          If the guns they’re selling now that are legal generally but illegal for the particular purchaser become illegal the black market is not going to just stop dealing in those weapons.

                          First of all, yes, the black market will hestitate doing something when something becomes more illegal. As I keep pointing out, currently, illegal arms dealers are basically a *gray* market, not a black market. They’re selling legal things, in an illegal manner. That’s the definition of a gray market, not a black market.

                          However, yes, eventually those guns will be sold. The outright illegal stuff will be too hot to trade on the street, but it will *eventually* get sold. That is not the point.

                          The point is that they will *run out*. Their supply will *go away*. There will stop being *new* guns in the marker, because those guns start out legal. That’s how they get them.

                          Branching into smuggling or manufacturing is just that…starting an entirely different criminal enterprise, or making entirely new connections. It’s not the simple thing of ‘fencing stolen guns’.

                          Hell, considering the size of the US market, a lot of those guns will just stop *being made*, period. The other places they’re ‘legal’ (Or enforcement is so lax that no on cares.) often tend to a) be very poor places where people use cheaper weapons, and/or b) places where people use *fully-automatic* weapons. We’re the only place where super-expensive assault-style semi-automatics even *sell*, as far as I’m aware.

                          Sig Sauer isn’t going to produce a gun that it can’t logically sell anywhere.

                          Regarding Australia and the UK, I don’t want to get too much into link trading (I’m not Australian or British so all information is limited to what I happen to come across), but contradicting the success stories you do also see stuff like this:

                          The Australian link is nonsense. Firearm crime in Australia has been dropping this entire time, and continues to drop. The police have just started charging more crimes. As the article says, the most common charge now is ‘illegally accquired ammunition’. Also, those guns statistics are about *pistols*, aka *legal* weapons. I.e., that’s the illegal gun market doing exactly what I said…selling stolen guns. (Or possibly smuggling *legal* guns in, which is a good deal safer than smuggling in illegal guns.)

                          Australian has banned some weapons, and made everyone register existing ones. The banned weapons…have vanished. The legal guns…still end up on the black market.

                          The UK article…is just plain stupid. If you actually read it, it’s about *fake* guns and deactivated guns that can be ‘converted’ to real guns. Which…no they can’t. It’s idiotic fear mongering.

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              • Military pattern rifles are not insane for home defense, as the carbine style, like the bullpup, was designed to grant soldiers the power & accuracy of a rifle in a design compact enough to be maneuverable in tight quarters (like clearing a building).

                What is insane is spending the money on one & then not getting the necessary training on how to use it in that manner. If you’re not going to get the training, buy a damn shotgun.

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                • I have no problem with a bullpup *design* or other carbines (Beyond the detachable mag), or how a weapon is laid out at all. If someone wants to use a rifle designed for close quarters for home defense, fine. A rifle isn’t the best choice there in my book, but a shorter one makes more sense than a four foot rifle.

                  The reason that the rifles I listed (Which are not carbines, but that’s a bit irrelevant) are insane for home defense is that they are intended to fire a lot of small caliber high velocity bullets, like a 5.56, which is *great* for suppressing fire or shooting through walls when you intend to do that, but are in fact rather horrible for home defense, where you probably *don’t* want to shoot through walls.

                  A lot of carbines, often being designed as military weapons, work that way. That is a specific ‘niche’ that guns are designed to occupy. Small calibre, high velocity, lots of bullets. It is great for war. It is also great for mowing down civilians at a movie theater. It is stupid for home defense, or self defense, and not great for hunting.

                  And thus I feel there is not actually any constitutional protection for such weapons. There is always a better choice for the *constitutionally protected* reasons to own a gun.

                  There are plenty of rifles that are not designed to occupy that niche. There plenty of *carbines* that do not. (Hell, there are apparently 50 caliber *bolt-action* bullpups.)

                  Although note I’m classifying them based on detachable magazine, not the niche. No gun designed to occupy the ‘military suppression’ niche is going to not have a detachable magazine, but the non-rifles that cause problems in society also have that. (Specifically, a lot of handguns.)

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                  • DavidTC:
                    A lot of carbines, often being designed as military weapons, work that way. That is a specific ‘niche’ that guns are designed to occupy. Small calibre, high velocity, lots of bullets. It is great for war. It is also great for mowing down civilians at a movie theater. It is stupid for home defense, or self defense, and not great for hunting.

                    And thus I feel there is not actually any constitutional protection for such weapons. There is always a better choice for the *constitutionally protected* reasons to own a gun.

                    I am not a lawyer, but the purpose of joining a militia (or even having one) is to prepare for war. It seems odd to claim that hunting and home defense are constitutionally protected activities but getting guns which would help your militia prep for war (as opposed to hunting) would not be.

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                    • I am not a lawyer, but the purpose of joining a militia (or even having one) is to prepare for war. It seems odd to claim that hunting and home defense are constitutionally protected activities but getting guns which would help your militia prep for war (as opposed to hunting) would not be.

                      I’ve never seen any gun control law prohibit people from doing *anything* in a militia.

                      I suspect you’re fallen for the weird idea that people can just *start their own* militia, which is not how militias actually work. Those things where a bunch of old white guys run around in the woods wearing camo and holding guns are not militias.

                      A militia is a *government operated* entity that is distinguished from a military by the fact that everyone is part time, instead of a professional soldier. The National Guard calls them ‘citizen soldiers’. (Which is a weird term vaguely implying that professional soldiers aren’t usually citizens.)

                      Nations can also, in time of emergency, *form* a militia out of untrained citizens, but it is not ‘a bunch of people grab guns and call themselves a militia’. It is, instead, the nation(1) *drafting* people.

                      I’ve never seen any gun control law that applied to what weapons you could possess or practice with *in the National Guard*, or in the few state militias that are not part of the National Guard. Considering gun control laws are generally *state* laws anyway, it would be really weird for part of the civilian state law to be telling the state militia that they can’t do certain things. (Surely that should be in the military code!)

                      And I’m all for the idea that the 2nd amendment prohibits the Federal government from barring the states from having militias. In fact, that is literally what *I* think the thing is trying to say.

                      1) It is a somewhat interesting legal question if US *states* have any drafting power. None of them actually has a draft on the books, but could they? The draft is one of those powers of government that is literally mentioned nowhere in the constitution, and would appear to be unconstitutional with a strict reading of the constitution, except everyone agrees it’s not. The US is just assumed to have it because all countries do….or is that all States? Logically, if you can have a military force, you can draft people into that force, right?

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                      • DavidTC:
                        A militia is a *government operated* entity that is distinguished from a military by the fact that everyone is part time, instead of a professional soldier. The National Guard calls them ‘citizen soldiers’. (Which is a weird term vaguely implying that professional soldiers aren’t usually citizens.)

                        My impression from history is a militia could be organized at *any* level, including towns (which today would be villages). Looking for a more structured definition I’ve found…

                        The reserve militia or unorganized militia, also created by the Militia Act of 1903 which presently consist of every able-bodied man of at least 17 and under 45 years of age who are not members of the National Guard or Naval Militia. http://definitions.uslegal.com/m/militia/

                        A. The Colonial Militias

                        …Yet owing to the small British military presence of the time, the colonists soon found the need to establish a military force… The resulting colonial militia laws required every able-bodied male citizen to participate and to provide his own arms. Militia control was very localized, often with individual towns having autonomous command systems.
                        https://academic.udayton.edu/health/syllabi/Bioterrorism/8Military/milita01.htm

                        Put differently, the militia was the people. We’re talking about a time period where the state was exceptionally weak (and the federal state even more so) and it was reasonable to think you’d need to depend on your neighbors for “military” support to deal with Indian invasions, slave rebellions, or even hostile government.

                        DavidTC:
                        I’ve never seen any gun control law prohibit people from doing *anything* in a militia.

                        I think there’s an argument that all federal gun control laws which attempt to prevent private citizens from owning guns are going to seriously impact Militias.

                        I think at best your line of reasoning results in gun control being a state level thing… but if militias really are by definition “all able bodied men” the issue we instantly run into is whether it’s constitutional for a state to outlaw militias other than it’s own.

                        DavidTC:
                        It is a somewhat interesting legal question if US *states* have any drafting power.

                        Sounds like militias were often exactly that. Granted, 4 days of training a year isn’t “full time”.

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                        • Put differently, the militia was the people.

                          I think at best your line of reasoning results in gun control being a state level thing… but if militias really are by definition “all able bodied men” the issue we instantly run into is whether it’s constitutional for a state to outlaw militias other than it’s own.

                          No.

                          It is *incredibly easy* to misunderstand what is meant by ‘all able bodied men over 17’. The law isn’t affirming some sort of status that ‘of course they’re the militia’, the law is saying ‘Those men are in the militia because *the government says they are*’.

                          They were in the militia because the government had drafted them in. That line is literally *the draft*, not some sort of philosophical statement of what militias are.

                          If the government later says they are not in the militia, they are *not*.

                          There is no right, whatsoever, to be in a militia. There is no right to start one, there is no right to join one. It is exactly as legal as starting your own private police department…I mean, yes, you can run around waving guns claiming you’re the police, but you are not, in fact, the police.

                          People quoting ‘all able bodied men’ are basically doing the same thing as pulling out their selective service card and claiming it gives them the right to form their own military. No, it doesn’t.

                          (And, yes, I’m aware that thanks to *decades* of people misusing the term, often private armies are, in fact, called militias at this point. But that is *not* what the term meant when the 2nd amendment was written.)

                          And states can, indeed, outlaw other militias beside its own. Well, it couldn’t outlaw a hypothetical Federal one, obviously, but it could outlaw any from political divisions below it. How do I know this?

                          Because political divisions below the state do not *actually exist* in the US. They are merely states playing around with themselves. Legally, states can create and dissolve those things randomly, as they see fit. (As people who have come under ’emergency city manager laws’ have rapidly discovered.)

                          Cities, counties, boroughs, whatever, have no legal rights beyond what the state grants them. I’m unaware of any state constitution that says otherwise. This is unlike the states, which *do* have some level of sovereignty and do have some rights WRT the Federal government.

                          If the state doesn’t like some town’s militia, they not only can they dissolve that militia, they could order the town to dissolve the militia instead, or they could just dissolve *the entire town*.

                          Whether or not a locality can form a militia in the *absence* of any specific state law allowing or banning such a thing is an open question. As is whether or not they can *currently* draft people into it. Yes, I’m aware they *used* to be able. But our ideas of appropriate government power have changed over the years. I suspect they could only get away with that during an actual invasion.

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                          • First let me say you make seriously good arguments. Logical, sensible, and I had to chew on them for a while. Very well done sir.

                            DavidTC:
                            Cities, counties, boroughs, whatever, have no legal rights beyond what the state grants them. …

                            Agreed.

                            DavidTC:
                            Put differently, the militia was the people.

                            They were in the militia because the government had drafted them in. That line is literally *the draft*, not some sort of philosophical statement of what militias are. If the government later says they are not in the militia, they are *not*. There is no right, whatsoever, to be in a militia. There is no right to start one, there is no right to join one.

                            Also true… but that needs expanding.

                            Culturally I think people then could NOT have related to the concept of not needing a militia, nor would they have been able to relate to the militia not needing every warm body. The state government was that weak, and the federal gov even weaker. Having said that, I think legally this is fine.

                            But I don’t think it takes us where you want. Even if you don’t have the Constitutional right to create or join a militia, even if militias don’t currently exist, what we’re talking about is whether or not you have the Constitutional right to have militia-worthy weapons, and this is expressly called out in the 2nd AM in the affirmative.

                            A big part of the militia, and thus the 2nd AM, was preventing/dealing with a tyrannical government. Obviously, misuse of those sorts of weapons also leads to these mass killings. On a side note, all the (non-drug, non-family) mass killings we’ve had in the last century don’t add up to one bad year with a tyrannical government.

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                            • A big part of the militia, and thus the 2nd AM, was preventing/dealing with a tyrannical government. Obviously, misuse of those sorts of weapons also leads to these mass killings. On a side note, all the (non-drug, non-family) mass killings we’ve had in the last century don’t add up to one bad year with a tyrannical government.

                              This is in many ways what the Swiss is about. There is a utility in having a significant percentage of the population familiar & proficient with modern arms, in order to serve as a last line of defense should the active duty and reserve forces fall, or be otherwise occupied.

                              Of course, here in America we don’t have any formal structures to ensure that not only is the population armed, but that it is consistently trained in any fashion whatsoever. Rather than providing even the most basic training, we’ve basically given up any pretense of anything resembling a militia by taking the approach of, “Get yourself a rifle, if the fit hits the shan and we don’t have any real soldiers to send, well, good luck!”

                              Nowadays, between GCA extremists who don’t want anyone except cops to have a gun outside of a military base, and GRA extremists who see any government attempt to regulate anything as a prelude to confiscation or a backdoor ban, any hope of reviving the militia of old, even in the most basic sense, is a lost cause.

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                              • Since we have Admiral Pacific and Atlantic protecting us pretty well we really don’t have need of a militia. It might be a nice idea in some ways it just doesn’t fit. Anyway we have so many people walking around in camo nowadays (not bdu’s or flight suits) it almost feels like we are a quasi military state.

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                                • The oceans do present a significant logistical challenge to any invading force, but not an insurmountable one, given sufficient motivation.

                                  But yeah, the lack of well armed and contentious neighbors, coupled with big damn bodies of water, does, IMHO, make us look inward for enemies, rather than outward.

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                                  • yeah given the motivation and tech we could be invaded by sea. However if that was a real danger, then high tech weapons likes lots and lots of planes, missiles, subs would be what we would be looking for.

                                    Funny: in the 90’s i was working for a homeless shelter and we were wandering around at night looking for street kids which was part of our job. There was a big flash of light which puzzled us all but it wasn’t’ all that odd. Evidently a meteor hit a couple hundred miles north of Anchorage. Cool. Well about a half hour later some of the radio stations were inundated with people calling in afraid that one big flash was a sign of an invasion on AK in the winter by either Iraq or Russia.

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                                    • As fascinating as high tech warfare is, ultimately you have to have boots on the ground if you want to hold territory (unless you just decide to practice genocide), and that is where all the expensive toys tend to lose. I mean, if it was all about planes and ships and tanks, our casualty lists from 2001 onward would all be training accidents.

                                      Still, this is all academic, no one will be trying an invasion of the North American continent anytime soon, the cost would far outweigh any significant gain.

                                      PS Seriously, Iraq attacking AK? What the hell are people smoking up there? I could understand thinking it was Russia, if you were especially paranoid, but Iraq?

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                                  • The oceans do present a significant logistical challenge to any invading force, but not an insurmountable one, given sufficient motivation.

                                    There have been several notable invasions of American soil in US history.

                                    The war of 1812, by our neighbor to the north, England. (Wait, is that right?)

                                    The Civil War, by, uh…our neighbor to the south?

                                    The Mexican–American War, by our actual neighbor to the south.

                                    The Spanish–American War, by Spain via Cuba…although I’m not sure any American territory actually ended up in Spanish hands during that. (I’m not sure the Spanish even knew what the hell was going on during that.)

                                    All of those are notable in the fact that the launching point of invasion were…places immediately adjacent to us. The farthest away was Cuba. (And likewise there were plenty of fights with Native Americans, who did apparently sometimes win. They had snuck in under the cover of night and had been living in the borders of our country from the very start! …wait, this history book seems a bit biased.)

                                    But technically, the Phillipines were part of America (Not that we cared about them.) when they were invaded by Japan. Likewise, Japan landed on some uninhabited parts of Alaskan islands, which, in a way, means they invaded the continental United States across an ocean, in the strictest technical sense.

                                    However, it seems like it would be nearly impossible to actually hold and control any part of the US from across the ocean. Their motivation doesn’t really matter if supply lines are too long. To invade the 48 contiguous states, you’d basically have to hold another country first, either Mexico or Canada.

                                    With Canada, you’re either you’re invading *way* too close to the US (People forget that Canada barely has a west coast.), and you’ve solved nothing at all with your supply lines, or you’re invading the frozen parts of Canada, which is a bit like invading Russia in the winter, if Russia was made of ice floes and polar bears instead of roads. The best best would be trying to make it down the Gulf of Saint Lawrence, try to establish a beachhead in Quebec.

                                    With Mexico…your best bet is to seize the west coast of that, and try to go up the coast. But there the Baja Peninsula sorta screws you up, sticking out there like that. It has few roads on it, and is hard to move on, so you either use it and hope you can keep it, or you have to go around it. And, maybe you can get to LA, or even make your way up the coast and get all of California…but what next? You’ve got a mountains *and* a desert between you and the rest of the US! Yes, you can go via the south, avoid the mountains, but you still have the desert. A desert, which it should be pointed out, is full of military bases with experimental long bombers. Oops.

                                    The other option is the Gulf of Mexico, but, honestly, a patrol between US and Cuba, and Cuba and Mexico, is almost trivial.

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                                    • I’m not a genius military strategist by any means, but if an invading force could somehow occupy or disable, say, the Pacific Fleet, and they could manage to capture and control the LA harbor (I’d go for LA & Seattle if possible), one could satisfy portions of the logistics problem just by looting the port.

                                      Still, an invasion of the US would (absent some kind of science fiction) necessarily rely heavily on the logistics train being supplied from local resources, which is (IIRC) what Napoleon & Hitler both figured they’d do with Russia, and both of them learned to their horror that the Russians were more than willing to deny them those resources.

                                      Pretty sure we’d do something similar.

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                              • Oscar Gordon: Of course, here in America we don’t have any formal structures to ensure that not only is the population armed, but that it is consistently trained in any fashion whatsoever.Rather than providing even the most basic training, we’ve basically given up any pretense of anything resembling a militia by taking the approach of, “Get yourself a rifle, if the fit hits the shan and we don’t have any real soldiers to send, well, good luck!”

                                Nowadays, between GCA extremists who don’t want anyone except cops to have a gun outside of a military base, and GRA extremists who see any government attempt to regulate anything as a prelude to confiscation or a backdoor ban, any hope of reviving the militia of old, even in the most basic sense, is a lost cause.

                                A militia is probably pointless, but under what situations would I need a gun? Economic Collapse? (Say, if the political class decides to use hyper inflation to deal with the debt). My city becomes a very high crime area and for some reason I can’t move? I’m targeted by a stalker?

                                My expectation is that I’ll see whatever is coming a year or more out, and as long as I have the right to buy a gun, I don’t actually need to do so right now. However if the GCA extremists look like they’re going to win then I’d need to get armed while I can.

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                            • I think the “prevent a tyranny” argument fails a bit unless you want to say Javelins, Stingers, grenades, mortars, .50 cals, mines, etc. are all fine for everybody to own to their hearts content. Yeah there are a few that go that far but if you really want to give the peeps an option to fight the gov they gotta be able to take down helo’s and pop armored vehicles.

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                              • greginak:
                                I think the “prevent a tyranny” argument fails a bit unless you want to say Javelins, Stingers, grenades, mortars, .50 cals, mines, etc. are all fine for everybody to own to their hearts content. Yeah there are a few that go that far but if you really want to give the peeps an option to fight the gov they gotta be able to take down helo’s and pop armored vehicles.

                                Generally speaking a country’s army can deal with any one city, but needing to deal with all of them is a big enough problem that a political solution will be found. If it takes the real army to impose order, then that had better be the exception, not the rule.

                                The inflammatory way to phrase that is “the holocaust would have looked very different if the Jews had been armed”. If we want to limit history to 1950+, then worldwide we’ve averaged about 4 genocides a decade, that’s roughly a 2% chance per country per decade, or each country has a 50% chance of one every 350 years or so.

                                These numbers are really, really stark and one sided. Even if “prevent a tyranny” only works half the time, it’s STILL worth losing a hundred people a year.

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                                • I agree with your first paragraph. The second one very much not so. That is some bad history. The Jews were a tiny minority, if they were armed they would have been killed just the same. They were widely outnumbered. In fact it was a murder by a jew of a nazi that provoked serious reprisals. If the Jew had been armed they would have been considered an even greater danger. It was a truly noble fight in the Warsaw ghetto for the jews to fight back in 44. And they got slaughtered while putting up a good fight.

                                  You know stats don’t work like that. They are meaningless, you can’t calculate the chance country will be a dictatorship in that crude fashion. That is for Spock or Hari Seldon, but in real life it doesn’t work like that.

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                                  • greginak:
                                    The Jews were a tiny minority, if they were armed they would have been killed just the same. They were widely outnumbered. In fact it was a murder by a jew of a nazi that provoked serious reprisals. If the Jew had been armed they would have been considered an even greater danger.

                                    Where they existed they tended to exist in numbers, and I don’t understand this ‘an even greater danger’ line of thought. Are you suggesting the Jews were safer because they weren’t armed?

                                    greginak:
                                    It was a truly noble fight in the Warsaw ghetto for the jews to fight back in 44. And they got slaughtered while putting up a good fight.

                                    13,000 Jews died there, another 57k were sent to death camps. The ZOB (the larger of the two resistance groups) had 220 hand guns (many home made), one machine gun, and a few rifles. They had very little in ammunition. There were 2,090 Nazis (source: wiki).

                                    So there were roughly 10 Nazis for every Jewish gun, and perhaps more Nazis than Jewish bullets.
                                    The Jews had the manpower for 300x as many guns (more if we count quality).
                                    This is not an example which shows guns don’t matter, just the opposite.

                                    greginak:
                                    You know stats don’t work like that. They are meaningless, you can’t calculate the chance country will be a dictatorship in that crude fashion. That is for Spock or Hari Seldon, but in real life it doesn’t work like that.

                                    Interestingly NPR was just talking about a time capsule of Jewish letters from… I think 1930. They had no clue what was coming. Ask someone in 1950 to predict which 20 countries are going to have genocides in the next 50 and I don’t think he can. Or for that matter, predict which 20 countries are going to have genocides over the next 50 years.

                                    “Random” isn’t a good word but genocide is a lot more common and less predictable than we like to think. Further that’s just the extreme of tyranny. There’s lots of lesser situations where one could reasonably want a militia-worthy gun.

                                    If we include failed states, wars, lack of law enforcement, or other situations where the government loses control over it’s monopoly on violence then it’s a LOT greater than 2% a decade. The Ferguson riots were the exception in this country, not the rule, but that’s of small comfort if it’s your house being burned or your life on the line.

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                                    • To clarify. The nazi’s blamed jews for many things. Jews became the scaprgoat for the Stab in the Back narrative of the loss of WW1 and there was plenty of anti-semitism floating around to make jews seem like they were a mortal threat to the German state. This is completely clear from nazi propaganda from the 30’s and 40’s. If Jews had lots and lots of guns the nazi’s would have just had another reason to ramp up their fear ie. “jews are evil mongrels, corrupting our country and mussing our pure blood and they are arming themselves to over throw us in line with all their bankers.” The propaganda rights itself. Instead of just a simple Kristalnacht the nazi’s would have gone in harder and bloodier and would have felt completely justified in doing so. Any retaliation by jews would have just been more excuse to send in tanks or whatever. If jews had been armed it would have changed nothing in general. They weren’t safer w/o guns, they were only safe outside of germany and then europe.

                                      fwiw, my moms GP’s were polish jews and had relatives who were killed in teh Holocaust. This not just some twaddle i haven’t thought about. It is related to my history.

                                      I’m in no way calling for guns to be taken away. I’m fine with gun ownership although i’m sure i want different regs than you. I think the tyranny is coming aspect is a weak argument that relies to much on paranoia and slippery slope arguments. If we want to avoid tyranny we need a hellava lot more than just a lot of guns.

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                                      • I think, back in the day, before telephones & TV & radio, tyranny was an issue. As communication becomes more varied and easier, the threat becomes harder to imagine. Or rather, getting to a place where a small group of elites could hope to seize political power and exercise it in such a way as to incite violent rebellion is a hard sell, because that would require very precise control of all the communication networks to prevent word getting out about abuses. It would also require very tight control of the military and all the various police departments, which is a very tall order, as well as a complete collapse of the middle class into poverty. It’s not impossible, mind you, but it would require a degree of ideological driven cooperation unlike anything we’ve ever seen.

                                        We all just like to argue with each other way too much.

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                                      • greginak:
                                        fwiw, my moms GP’s were polish jews and had relatives who were killed in teh Holocaust. This not just some twaddle i haven’t thought about. It is related to my history.

                                        My wife’s home town lost 80% of it’s population, 12k out of 15k. I’ve no clue how many Germans it took to make that happen… perhaps just a handful. But if Warsaw had 1 handgun for every 2k Jews (200-ish from a population that started at 400k), then presumably the number of guns would have been close to zero, so “a handful” would have been all it took.

                                        greginak:
                                        To clarify. The nazi’s blamed jews for many things. Jews became the scaprgoat for the Stab in the Back narrative of the loss of WW1 and there was plenty of anti-semitism floating around to make jews seem like they were a mortal threat to the German state. This is completely clear from nazi propaganda from the 30’s and 40’s. If Jews had lots and lots of guns the nazi’s would have just had another reason to ramp up their fear ie. “jews are evil mongrels, corrupting our country and mussing our pure blood and they are arming themselves to over throw us in line with all their bankers.” The propaganda rights itself. Instead of just a simple Kristalnacht the nazi’s would have gone in harder and bloodier and would have felt completely justified in doing so.

                                        All of this is true.

                                        greginak:
                                        Any retaliation by jews would have just been more excuse to send in tanks or whatever. If jews had been armed it would have changed nothing in general. They weren’t safer w/o guns, they were only safe outside of germany and then europe.

                                        You’re assuming an unlimited number of tanks/soldiers that they can put anywhere. Germany enlisted as many men as they could, they created as many tanks as they could, etc. They had to make trade offs. If it takes 20x as many soldiers to do things, then some things just don’t get done. Or alternatively, if the Nazis really were willing to divert tanks/soldiers from the front line to deal with every small town etc (and they might have been), then they would have lost the war sooner.

                                        greginak:
                                        I’m in no way calling for guns to be taken away. I’m fine with gun ownership although i’m sure i want different regs than you. I think the tyranny is coming aspect is a weak argument that relies to much on paranoia and slippery slope arguments. If we want to avoid tyranny we need a hellava lot more than just a lot of guns.

                                        IMHO the 1st AM has done more than the 2nd to avoid a tyranny. At the same time we’ll never know of ugly paths avoided because the people in charge decided it’d be more trouble and risk than it was worth.

                                        The problem with calling it “a weak argument that relies to much on paranoia” is it’s happened several dozen times in the last century. Humans aren’t good at evaluating small percentages that probably won’t happen in their lifetime but care large impacts. That’s why the lottery works so well.

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                                        • yeah humans aren’t good with low probability events. That feels like just as much a support for what i’m saying as what you are. I think to avoid a tyranny guns are far down the list, maybe in the top 10 though. It depends on the culture and democratic institutions and free press. Australia isn’t likely to ever be a tyranny for a variety of cultural and gov process reasons regardless of gun laws. Same for the US. Of those countries that fell to tyranny how many fell from liberal democracy to tyranny. Maybe weimer germany but that was a very short term democracy with a long history of autocratic rule.

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                                          • The lesson of Rome, or for that matter, Star Wars: Revenge of the Sith, is that democracies create bureaucracies, run into trouble, and turn to strong men.

                                            We’re about to elect to the Presidency either an openly corrupt (to a mind-numbing level) Democrat who really should have been arrested years ago or a Demagog anti-immigrate strong-man Republican who shouldn’t be running for office at all. Both of them believe in the Imperial Strong-man Presidency.

                                            And this is in a time where we *aren’t* dealing with anything especially serious.

                                            In the easily foreseeable future we’re going to have serious problems with the debt and paying for all these things we’ve promised. All of the possible answers are painful, poorly handled this could make conditions right for a despot.

                                            Or to put it differently, I don’t see how the chances of a despotic government in the decade after next isn’t at least 2%.

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                                            • Oh my…oh my…Hillary should have been arrested???? Sorry no. That is ridiculous. Aside from that she is a run of the mill centrist Dem. There is no tyranny coming from there. You may not like centrist D’s but that is not a dictatorship in the making. Even Trumpy, as bad as he is, wouldn’t end up a dictator. He could tons of damage but democratic institutions are far to strong to fall to him.

                                              You keep breaking stats. You can’t calculate percentages like that. They are meaningless. In fact its silly when Spock does it and Spock is, you know, fricking Spock.

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                                              • Go google “Clinton Cattle Futures”, read the wiki (which makes her worthy of being arrested right there), then understand The Clinton Foundation (TCF) is the modern version of that. They have collected roughly 2 Billion (with a ‘B’) dollars, those donating is a who is who list of people who’d want to bribe the Sec of State. Why does Blackwater, when they’re not out there killing/protecting people, think The Clinton Foundation is a worthwhile ‘charity’ to invest in?

                                                She, Bill, and TCF are worth hundreds of millions of dollars. My assumption is the people paying them think they’re worth the money. So… what is it that they’re doing that is worth hundreds of millions of dollars?

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                                        • Taking out a tank with a handgun or a rifle is going to be hard to do. It’s worse with the idea of taking out airplanes.

                                          If we want private arms to be able to defend against the government, we need to give higher caliber weaponry to the populace.

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                                          • I seriously doubt they used tanks. Tanks are expensive, Germany had a limited number, if they’d needed tanks to deal with every tiny town then the Holocaust wouldn’t have been as total.

                                            The Government has the resources to send the tanks+army in to deal with any one town, kill any one person, etc. That’s very difference from being able to send the army into every town.

                                            More guns turns the Jewish uprising in Warsaw into the Polish uprising in Warsaw. In both cases the Nazis ‘won’, but in the later it was really, really expensive, took a long time, resulted in lots of dead Nazis, etc. The Jews killed 17 Nazis, the Poles killed 8000.

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                                • When has “prevent a tyranny” ever worked, anywhere?

                                  Part of what makes tyranny tyrannical, is that it cultivates an armed majority, not minority.

                                  It wasn’t just a tiny band of heavily armed Nazis vs a vast unarmed populace, any more than it was a tiny band of Bolsheviks or a tiny group of Fascists, Khmer Rouge, Hutus/ Tutsis or anything else.

                                  Tyrannies work by being popular with a majority.

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                                    • The American Revolution?

                                      It wasn’t a tiny band of armed rebels overwhelming a large majority; the Revolution, like most revolutions, only got traction when a sufficiently large number of people became too large to suppress, that is, when the armed majority became small enough to be contested.

                                      And they didn’t win until they gathered a regular army that could stand its ground against the opposing force.

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                                    • “When has “prevent a tyranny” ever worked, anywhere?”

                                      “The American Revolution comes to mind.”

                                      The American revolution wasn’t predicated on preventing tyranny. Hell, all those folks knew exactly what they were getting in to when they came to colonies governed by Britain. They walked in to what they subsequently viewed as tyranny and then fought their way outa it.

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                                      • Stillwater:
                                        The American revolution wasn’t predicated on preventing tyranny. Hell, all those folks knew exactly what they were getting in to when they came to colonies governed by Britain. They walked in to what they subsequently viewed as tyranny and then fought their way outa it.

                                        The 13 colonies were founded in 1607(ish), the Revolution was in 1776. While they certainly had immigration they also had a lot of growth from people having kids.

                                        …a higher proportion of the population reached reproductive age, and that fact alone helps to explain why the colonies grew so rapidly. https://en.wikipedia.org/wiki/Thirteen_Colonies

                                        Ignoring that, the Revolution largely came from Great Britain (GB) changing the rules. GB colonies would be run with the purpose of enriching GB’s economy. Thus the Tea Act of 1773, which led to cries of “No Taxation without representation”, The Boston Tea Party, and ultimately the revolution.

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                                      • I’ve said this before, but fighting against tyranny usually isn’t going toe to toe with the army or the national guard, often it’s just the government deciding, “This thing here, this is none of our business, we are going to pretend it’s not happening.”

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                                        • but fighting against tyranny usually isn’t going toe to toe with the army or the national guard, often it’s just the government deciding, “This thing here, this is none of our business, we are going to pretend it’s not happening.”

                                          I don’t understand that last bit, but there is a large faction of people who think taxes are tyranny. And that social programs are tyranny. And standardized tests in schools are tyranny. And that Elites are tyranny. And that Pres. B.H.Obama is tyranny.

                                          Of course, if coercion is the defining criterion of what constitutes tyranny (think about it!), then pretty much any law or regulation enforceable by gummint constitutes tyranny. And perhaps even more!

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                                            • True. I don’t know what your meaning of the word is tho. :) Seems to me that from a practical pov, a person could hold one of two beliefs about whether our federal gummint is engaging in tyranny. The first would be that bad policy is not viewed as a form of tyranny and changes are sought thru the legislative process. The second would be that bad policies are viewed as a form of tyranny even if those policies could be changed via the legislative process. A lot depends on what constitutes “bad policy” of course, but a lot depends on a person’s priors wrt the role government plays in society. Eg., there is a not-insubstantial group of people who think any form of government (with the power to enforce laws) constitutes a tyranny, and other folks who hold views down a continuum to only certain sorts of government practices constitute tyranny. ANd so on to folks who do not view any government actions (in a democratic society based on the rule of law, etc) as an expression of tyranny.

                                              The point being, if a person holds the view that government is fundamentally tyrannical institution at its core without consideration of pragmatics or practicality, then resistance to government and its correlated policies is fundamentally just (or justified). But to “resist” via the electoral/legislative process seems inconsistent – to me, anyway – with the concept of tyranny, a concept which sorta logically excludes political solutions to enact change leaving only the extra-political action to achieve its goals.

                                              There’s a logical problem in there, seems to me.

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                                              • I was thinking more along the lines of Jim Crow.

                                                Take Ferguson for example (& how many places like it in the US). I’m betting the feds were not truly aware of what was going on there, but somebody above the municipality knew about it and either failed to take action, or otherwise report it. So the minority population was being effectively oppressed by the Justice system and no one really cared.

                                                Now that oppression was, for lack of a better word, soft, in that it leveraged neutral systems in a non neutral way, but the same could happen under harder oppression, if, say, the police had a habit of beating every black suspect & claiming they resisted, or of arresting every black man involved in a fight with a white person, regardless of who started it, etc.

                                                Ideally the feds would intervene, like they occasionally do now, but they could just turn a blind eye, which I think they also do unless the public forces the issue front & center.

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                            • But I don’t think it takes us where you want. Even if you don’t have the Constitutional right to create or join a militia, even if militias don’t currently exist, what we’re talking about is whether or not you have the Constitutional right to have militia-worthy weapons, and this is expressly called out in the 2nd AM in the affirmative.

                              Militias do exist. The National Guard is one, a force made of all the individual state militias. Some states have other militias.

                              And just asserting that’s what the 2nd amendment says does not make it true.

                              The only Supreme Court decision we’ve had that affirmed any sort of individual right to firearms did so on the basis of self-defense, home defense, and hunting. It was *completely silent* on any sort of right to defend against an invasion. (Or, to pick another popular one, to overthrow a tyrannical government.)

                              And the courts have never weighted in on the right of anyone to own ‘militia-worthy weapons’, or what that would mean…well, actually, they have. They were perfectly fine with *automatic* weapons being banned.

                              Militias, being a *military force*, would generally require *military* weapons. Fully-automatic ones. RPGs. Tanks. That sort of thing. People…are not allowed to have those.

                              There seems to be this huge disconnect as to what the courts have said the 2nd amendment says, and what people *think* they’ve said it says. DC v. Heller didn’t magically make everything the anti-gun-control people were saying true.

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                              • Well, self defense automatically gives you the right to defend against an invasion as long as a state of war exists. You just don’t have a right to demand an organized force take you on as a member.

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                              • DavidTC: Militias do exist. The National Guard is one, a force made of all the individual state militias. Some states have other militias.

                                A militia which doesn’t store their weapons at home and which presumably wouldn’t take me. This is an effort to move the 2nd AM from being an individual right to being a state’s right. “the people” is a phrase used over and over in the Bill of Rights and it’s always referring to individual rights, there are other phrases for state’s rights.

                                DavidTC: The only Supreme Court decision we’ve had that affirmed any sort of individual right to firearms did so on the basis of self-defense, home defense, and hunting. It was *completely silent* on any sort of right to defend against an invasion.

                                Then the Supremes are turning their eyes away from what it says. The 2nd AM makes no mention of hunting or home defense, it does however go over ‘security of a free State’ and ‘militia’.

                                Constitutional rights should be as broad as possible (thus free speech covers the internet), not as narrow as possible.

                                2ND AM: A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

                                DavidTC: Militias, being a *military force*, would generally require *military* weapons. Fully-automatic ones. RPGs. Tanks. That sort of thing. People…are not allowed to have those.

                                Militias, back in the day, stored only some of their weapons at home. You don’t keep a cannon or other heavy weapons in your bedroom, nor are you able to “bear” them. However if you want to argue that the Constitution allows for “the people” to “have” any weapon they can “bear” then that’s fine.

                                DavidTC: There seems to be this huge disconnect as to what the courts have said the 2nd amendment says, and what people *think* they’ve said it says.

                                When the court overturned Plessy v. Ferguson they didn’t change what the Constitution “said”. The correct way to allow gun control to the degree the left wants is to argue for, and then get rid of, the 2nd AM.

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                                • This is an effort to move the 2nd AM from being an individual right to being a state’s right. “the people” is a phrase used over and over in the Bill of Rights and it’s always referring to individual rights, there are other phrases for state’s rights.

                                  Actually, you’ve hit upon a really obscure thing I’ve pointed out before, and you are, in fact, exactly wrong there. Whenever the constitution or bill of rights uses ‘The people’, it *always* is talking about a collective right or power.

                                  There are three uses of in the Constitution/amendments about ‘the people’ electing Representives and Senators, which is obviously a reference to them collectively. And ‘We *the People* of the United States…’, which is obviously collective. Here are the less obvious ones:

                                  The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

                                  Note this is governmental powers, not rights. *Powers* that the government could have do not sit in individual people! If the US government hasn’t passed a law, or the State government hasn’t passed a law, then the *people* have the power to pass a law. Not, like, some random guy.

                                  The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

                                  This…doesn’t tell us anything at all.

                                  So let’s look at the remaining two instances, the ones I think you mean:

                                  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of *the people* peaceably to assemble, and to petition the Government for a redress of grievances.

                                  Notice the only rights listed of the *people* are to peaceable assemble and petition…those are, quite literally, the *group* rights.

                                  In fact, they’re a *expansion* of the previous rights. Congress cannot stop individual freedom of speech, and it can’t stop a group of people getting together to talk. Congress cannot stop individual freedom of press, and it can’t stop a petition created and signed by multiple people. It can’t stop those things at the individal level, and then it can’t stop them at the group level. (Yes, I know that speech has blurred into press and petition at this point, and assemble is considered a bit different, but the founding fathers didn’t foresee the internet.)

                                  The government is banned from doing things to individuals, and then the general *group* rights are asserted.

                                  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

                                  And, yet again, we get two separate things. It’s backwards this time, but it’s the same thing.

                                  The right of the people to be secure in their persons, houses, papers, and effects is a *general principle* about how the government should operate. You’ll notice it talks about *unreasonable* searches and seizures, not any sort of specific lines in the sand. It’s a general statement how the American people, *as a whole*, should be treated.

                                  And next, there is a specific thing nailing down one way that should work in practice, for individuals. (Well, for individuals and places, I guess.)

                                  In summary: *Every* *single* *time* the constitution bans the government placing a restriction on *any and all* human beings, it says something like ‘Congress shall make no law’ or ‘Excessive bail shall not be…’ or ‘No Person shall be convicted of Treason…’ or ‘the accused shall enjoy the right to a speedy and public trial’.

                                  It’s either forbidding ‘congress’ from doing something, or it’s just outright saying it ‘this thing shall not exist’.

                                  Or, in one notable instance, ‘No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.‘ No *person*. Person. Singular. Not ‘The People shall not be convicted…

                                  In fact, there’s a *lot* of ‘person’ and even ‘persons’ in the constitution, with all sorts of individual rights attached to them. And there is not a single individual right distributed to people via ‘the *people*’. Not a single, solitary one.

                                  That is because ‘the people’, as the first line of the constitution literally says, is the collective group.

                                  Except, apparently, in the second amendment.

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                                  • The Bill of Rights (i.e. the ten passed at the same time, skipping the ones which don’t mention ‘the people’ and #9 which we agree is a mess).

                                    Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

                                    Amendment II: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

                                    Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

                                    Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

                                    RE: #10
                                    DavidTC: Note this is governmental powers, not rights. *Powers* that the government could have do not sit in individual people! If the US government hasn’t passed a law, or the State government hasn’t passed a law, then the *people* have the power to pass a law. Not, like, some random guy.

                                    It means if the federal or state governments hasn’t passed a law, the people can simply do it. It isn’t a world where everything not specifically allowed by the state is forbidden for the people, rather everything that isn’t expressly forbidden is allowed. Further, notice it mentions both “the States” and “the people” like they’re different entities.

                                    RE: 1
                                    DavidTC: Notice the only rights listed of the *people* are to peaceable assemble and petition…those are, quite literally, the *group* rights.

                                    Assemble is hardly something which can apply to the states, and “petition” is certainly something you can do, individually, to a court. According to legal-dictionary a ‘petition’ is A written application from a person or persons to some governing body or public official asking that some authority be exercised to grant relief, favors, or privileges. http://legal-dictionary.thefreedictionary.com/petition

                                    RE: 4
                                    DavidTC: The right of the people to be secure in their persons, houses, papers, and effects is a *general principle* about how the government should operate.

                                    It’s not an individual right? Can we collectively be secure without any of us individually being so? Or perhaps the State has the right to be secure in it’s house?

                                    RE: 2
                                    Trying to argue it’s a ‘collective’ right would be fine if you were also claiming the people could use it collectively without the government’s permission.

                                    I can assemble with my friends without the government’s permission.
                                    I can petition the government or a court without the government’s permission.
                                    I am secure in my house, without the government’s permission.

                                    I can bear a gun… when exactly? If I join the government’s military? Effectively you’re trying to claim the 2nd AM has no effect at all. That it’s not worth the paper it’s written on, and that couldn’t have matched what the people who voted on it thought they were doing.

                                    The typical person back when the 2nd AM was passed would have been a farmer (90% rural back then), and farmers like guns. They would have lived within a day or two’s ride of dangerous animals, indians, etc. They’d just lived through a repressive government where the common man had picked up his guns and overthrown the government. They’d also seen the French-Indian war between 1754–1763.

                                    From that description, imho The Constitution was amended by anti-government gun-nuts, or at least that’s what they’d be today.

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                                    • This is sort of an aside, but a long time ago I read a very persuasive book effectively arguing that the bill of rights circumscribed federal power as it applies to state power, not individual rights. And if that’s right – and I’m not saying it is, of course, just that it’s worth thinking about – the second amendment prevented the federal gummint from infringing on the right to bear arms (for yadda etc) BUT allowed that states could. Same for free speech or free exercise and so on: the constitution was silent on whether a state could restrict speech (for example) but was clear that the federal gummint couldn’t.

                                      Along those lines it’s interesting to me that Heller was a challenge to Washington D.C.’s gun laws, since DC is part of the federal gummint and not a state.

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                                      • Considering that the second was pulled from the Virginia Declaration of rights that pre-dated the Declaration of Independence, it wasn’t defending against a federal power, because there wasn’t one established at the time.

                                        It’s kinda comical also in that when it mentions ‘free State’ it actually meant free State.

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                                        • I’m having deja vu about our recent Mancur Olsen discussion…

                                          The thesis of the book was that the Bill of Rights circumscribed federal power as it relates to state power, not individual rights. Which means that a state could, or could not, formally accord those rights to an individual. So I think we’re all square at this point, yes? Virginia made a choice to include 2A language in its state constitution, and the federal constitution prohibited the fedrul from infringing on it, right?

                                          Maybe I don’t understand your argument*.

                                          *Does it involve “natural law”?

                                          Adding: I perhaps forgot to mention that the thesis of the book – that the bill of rights was limited to limiting federal power as it relates to state power is that it (the thesis) cuts across all the major “isms” people invoke. None of them are spared!

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                                            • Joe,

                                              What does the creation date in Virginia have to do with the thesis under discussion? We’re talking about the Fedrul Constitution here, and its scope as it relates to the States. Not when Virginia mighta done whatnot for whatever reason.

                                              IOW, in this discussion, the constitutional framework is a distinct issue from Virginia’s framework since the entire thesis is that the Bill of RIghts was a restriction on federal power impinging on state power.

                                              So the thesis is still intact.

                                              Unless you’re gonna go Natural Law…

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                                        • Joe Sal,

                                          Here’s the text of the 1776 Virginia provision relating to “the right to bear arms”:

                                          “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.”

                                          Which is pretty dang consistent with what I said above – that the protections included in the US constitution were a state right enshrined therein: that the federal cannot infringe upon the right of a state to maintain a militia. Nowhere in that provision is there a right accorded to individuals to gun ownership, tho, let alone unregulated gun ownership.

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                                          • We are talking about the Virginia Declaration of Rights adopted June 12, 1776?

                                            Before the Declaration of Independence July 2, 1776
                                            Before the Articles of Confederation November 15, 1777
                                            Before the United States Constitution September 17, 1787
                                            Before the Bill of Rights was introduced June 8, 1789

                                            There wasn’t anything other than a rag tag bunch of free states at that time. No federal government to protect from. As it is mentioned in numerous places the Virginia Declaration and constitution relied heavily on the English Bill of rights, which where it mentions right to bear, it mentions subjects, as in individual subjects.

                                            Also mind that this was an era when kegs of gunpowder were being shipped around in the back of wagons. The thought of banning individuals from guns would have looked a special kind of stupid.

                                            I may unpack militia another time.

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                                            • Joe Sal: The thought of banning individuals from guns would have looked a special kind of stupid.

                                              Yes, and what would have looked equally stupid was the founding generation putting that decision in the hands of a centralized power it didn’t trust. They would have enshrined it at the state level and told the federal government to pound sand (or done worse if need be).

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                                              • What’s also sorta silly is the thought that individuals could be banned from guns, rather than guns banned from individuals. It’s one of those weird locutions zealots employ from time to time, according rights to inanimate objects. Like, for example, “the rights of property”. (One of which is to be owned, apparently.)

                                                Adding: more substantively, I agree with you that a fundamental motivation for the 2A was the State’s distrust and apprehension in agreeing to a federal constitution. I mean, that seems pretty clear to me given the historical record.

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                                                • Stillwater:
                                                  What’s also sorta silly is the thought that individuals could be banned from guns, rather than guns banned from individuals. It’s one of those weird locutions zealots employ from time to time, according rights to inanimate objects. Like, for example, “the rights of property”. (One of which is to be owned, apparently.)

                                                  Adding: more substantively, I agree with you that a fundamental motivation for the 2A was the State’s distrust and apprehension in agreeing to a federal constitution. I mean, that seems pretty clear to me given the historical record.

                                                  You know those zealots. When they can’t find an explicit right in the Constitution, they complain. When the can’t find an explicit right but see language they can use to argue for a explicit right that corresponds to their worldview, they turn into the great Living Constitutionalists of all while claiming to fly the flag of the Founding Generation, which none of them do.

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                                              • Well at the state level when the 2A was still in the Virginia Declaration of Rights there was still the concept of a ‘provincial congress of a free state’. It is a pretty good assumption as to what ‘civil power’ was pointing to, but hell no, some other bastards had big ideas.

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                                                • Joe Sal:
                                                  Well at the state level when the 2A was still in the Virginia Declaration of Rights there was still the concept of a ‘provincial congress of a free state’. It is a pretty good assumption as to what ‘civil power’ was pointing to, but hell no, some other bastards had big ideas.

                                                  Establishing something at the state level is fine. I get that, and it’s my belief that the founding generation valued a well-armed populace given recent history.

                                                  Lest we forget, the Constitution created a system of dual sovereignty that did not exist under the Articles of Confederation. Each of the sovereign states that ratified it agreed to transfer sovereignty they had previously retained to a newly formed federal sovereign: “We the People of the United States”. Much of the controversy in the ratification debates wa about how much power they were allegedly transferring, with some saying only what’s explicitly listed in the Constitution (Federalists) and some saying all of it (anti-Federalists).

                                                  It’s a states-rights centric view of the Constitution, as it should be. Hell, one of the primary reasons for a Bill of Rights was the lack of an explicit limitation on federal power like what they had before Six states proposed amendments to the Constitution as part of their ratification statements. (MA, NY, NH, NC, RI, VA). All but New York had what would become the Tenth Amendment first. Amendements V through VIII deal with the individual and rightly so but that’s nothing like the individual rights view that developed in the latter part of the 20th Century, a time when the relationship between the federal governments and state governments changed to the point where the federal government was in effect supreme. That arrangement did NOT exist during the Founding era IMO.

                                                  Therefore, I’m of the view that the belief that something was done at the federal level because of what was done at the state level is more a function of modern thinking than what actually transpired during the Founding era, an arrangement where the federal and state governments were almost co-equals.

                                                  If the founding generation felt that an armed populace was important and wanted to enshrine an individual right to bear arms, they could (and I think some did). It wouldn’t have mattered what the federal government thought because it was outside the realm of its power.

                                                  Besides, if you’ve been through the Federalist papers, you’ll notice that the entities perceived to play the most important role in safeguarding the liberties of the people were the states. This was known as interposition.

                                                  It’s not that I don’t support the Heller decision, I do. I just think that the modern way of looking at the Constitution greatly distorts the debate. I guess we have the lawyers to thank for that ;)

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                                          • Which is pretty dang consistent with what I said above – that the protections included in the US constitution were a state right enshrined therein: that the federal cannot infringe upon the right of a state to maintain a militia.

                                            Well, sorta. The right to have a militia isn’t really a ‘state right’ per se, or if there is one already existed implied by the constitution. We don’t need the 2nd amendment for that.

                                            The US government doesn’t really have to ‘take away’ guns from a militia…it can just fail to provide them in the first place!

                                            Duties of the US in the US constitution:
                                            To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

                                            Likewise:
                                            To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

                                            If the Federal government didn’t want a state to have a militia it could just *seize* the militia and keep it under their control!

                                            The 2nd amendment is, as far as I can tell, intended to stop the Federal government from *not funding* a state militia, and then cleverly *barring civilians from having their own weapons* to use in it.

                                            Whereas with the 2nd, even if the Federal government funds a militia, and then federalizes it, and takes everyone’s weapons away…the state can just dissolve the militia and form a *new* militia, with people bringing their own weapons. At which point the Federal government can try to Federalize that new militia, and at that point we’re probably in open war.

                                            Aka, it was less about a ‘right of a militia’ and more about a state’s *ability* to defend itself by making a militia if the US government tried to pull something.

                                            Yes, that sounds insane, but there are a lot of weird paranoid things that happened at the time. The idea that the Federal government might ‘sell out’ a state to a foreign government by dismantling their armed forces and allowing an invasion was not crazy. It’s why the states are still in charge of who is *in* them, and promotion of officers, with the idea that militias would be more loyal to their state if the Federal government tried anything. (Which was proven true in the civil war.)

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                                            • David,

                                              If the Federal government didn’t want a state to have a militia it could just *seize* the militia and keep it under their control!

                                              Actually, the purpose of the 2A, at least in significant part, was intended to prevent that very thing from happening, seems to me. Granted, the whole issue is a bit murky, not because there aren’t clear arguments one way or the other, but because there are clear arguments running at cross purposes.

                                              The 2nd amendment is, as far as I can tell, intended to stop the Federal government from *not funding* a state militia, and then cleverly *barring civilians from having their own weapons* to use in it.

                                              I think that issue is also subject to dispute, at least in terms of scope. In the event that militias were required to fight a territorial war in defense (or expansion!) of the United State’s borders, especially in the absence of a standing army, the task of coordinating that territorial defense fell on the federal gummint. So personally I don’t see any shenanigans in the provisions you quote: they’re restricted to “national emergency” situations.

                                              Aka, it was less about a ‘right of a militia’ and more about a state’s *ability* to defend itself by making a militia if the US government tried to pull something.

                                              Yes! The two parts are linked though: the presumption at the time of ratification was that states DO have the right to defend themselves against federal shenanigans, so the “right” of a state to a militia was codified in the constitution.

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                                      • Exactly, and this is what Burt is saying.

                                        Heller established the right as individual with regard to the federal government, so federal regulation of the right has to meet strict scrutiny. McDonald incorporates that definition to the states, so they too have to apply strict scrutiny, but only with regard to the state Constitution, so if a state Constitution has very narrow gun rights, that state can regulate the right more heavily.

                                        Do I have that right, ?

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                                        • Incorporation of a Federal right to a state by way of the Fourteenth Amendment means that a state may afford more individual freedom than is mandated by the Federal Constitution, but it may not afford less.

                                          The Second Amendment provides that there is a fundamental right of an individual to keep and bear a firearm. The Second Amendment neither prohibits nor mandates regulation of that right.

                                          So a state may regulate the gun ownership right differently than does another state, and it must comply with its own Constitution, but no state may regulate to such a degree that it impinges upon the boundaries of the Federal right, which is held by individuals. Under the existing Constitutional scheme and caselaw interpreting it, there must be a meaningful and reasonable opportunity for most people to acquire, keep, and peacefully use the sorts of firearms that are considered “normal” for use in “normal” ways by law-abiding people.

                                          What sorts of weapons and uses that means is, for the time being, mostly indeterminate. As to type of weapon, some kind of handgun, most shotguns, and some kind of long rifle. Likely protected uses include defense of premises both from wildlife and human intruders, hunting, and recreational target practice at ranges.

                                          Beyond that, it’s very hard to say what’s Constitutionally protected and what isn’t. Semi-automatic firing mechanisms? I don’t know. Clip size, quick-load mechanisms? I see no guidance in the Constitution. I’m also unclear as to whether particular kinds of grips, stocks, sights, barrel shrouds whether aesthetic or practical, loading mechanisms, or a large variety of other features are included or excluded.

                                          Seems to me the Constitution, as interpreted by the Supreme Court, does permit (but again, does not require) mandatory registration of ownership and transfers, taxes on transfers, some sort of pre-purchase background check, some sort of pre-purchase waiting period, and a variety of rules regarding storage and transport.

                                          But, these rules may not be so onerous as to substantially burden the ability of a citizen to peacefully keep and use the weapon. What that means with specificity is, as of yet, indeterminate. A lot of people are very uncomfortable with this indeterminacy, but sorry, that’s quite often the way the law really works.

                                          I don’t know if that is an agreement with you, , or with . But that’s how I read the foundational law on this subject until and unless the Second Amendment is modified through the Article V process.

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                                          • Under the existing Constitutional scheme and caselaw interpreting it, there must be a meaningful and reasonable opportunity for most people to acquire, keep, and peacefully use the sorts of firearms that are considered “normal” for use in “normal” ways by law-abiding people.

                                            “normal” for use in *normal* legal ways or “normal” for use in *constitutionally-protected* ways?

                                            The latter is basically the argument that I’ve been making. Namely, that the government can basically focus gun ownership *around the existing protected rights*, and leave all other ‘uses’ essentially out of the cold. Or, more specifically, allow ownership of weapons based mostly on how useful they are to those purposes.

                                            I.e., you can own the sorts of gun that are designed and commonly used for (and legal) for hunting. You can own the sort of guns are designed and commonly used for self defense. You can own the sort of guns are designed and commonly used for home defense.

                                            And essentially all other *types* of guns can be banned, or restricted. (And the government might have to replace guns currently being used for the ‘wrong purpose’ with better guns for those purposes.)

                                            Or, in other words, imagine this situation:

                                            ‘I would like to own that AR-15.’

                                            ‘For what constitutionally-protected use?’

                                            ‘Self defense’

                                            ‘It is not actually legal to walk around with a gun in your hand, you’d have to strap this to your back, and thus that is a crappy gun for the purpose of self-defense. We don’t let you have it for that. We recommend a handgun, which you can keep in a holster and access quickly.’.

                                            ‘Home defense’

                                            ‘AR-15s, as long rifles, are hard to maneuver in a home, and on top of that an AR-15 will penetrate walls. We won’t let you have it for that. We recommend a handgun or a shorter shotgun, depending on your skill level.’

                                            ‘Hunting’

                                            ‘It is not legal to hunt with that rifle in this state.’

                                            ‘Gun range’

                                            ‘Not a constitutionally-protected use’

                                            ‘…so what purpose can I have it for?’

                                            ‘Literally no purpose. There is no constitutionally-protected use that this gun, or even this entire category of gun, is very good at, so you can’t own it. You have to buy a different sort of gun.’

                                            Likely protected uses include defense of premises both from wildlife and human intruders, hunting, and recreational target practice at ranges.

                                            Ah, see, the courts didn’t say anything about gun ranges. I think a reasonable argument there is that people have a constitutional right to practice stuff they are constitutionally allowed to do.

                                            But gun ranges don’t *add* any sort of guns to “normal”, even if it’s currently normal to use them *there*. (After all, while not exactly ‘normal’, there are actually a lot of gun ranges where you can fire fully-automatic weapons.)

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                                            • DavidTC: ‘It is not actually legal to walk around with a gun in your hand, you’d have to strap this to your back, and thus that is a crappy gun for the purpose of self-defense. We don’t let you have it for that. We recommend a handgun, which you can keep in a holster and access quickly.’.

                                              Problems:
                                              1) At best, IMHO the anti-gun movement would offer this as a “compromise”, pocket it, and then keep pressing for less and less useful guns. Their actual position is no guns for anyone and this would just be a step along that way.

                                              2) Preventing invasion seems like it would be a constitutionally protected activity. If this seems unlikely, then you don’t live on the Texas border and need to worry about drug gangs or people smuggling. At the time of the 2ndAM, everyone lived on the border.

                                              3) There are situations where you’d need to defend yourself against more than one person. Armed gangs, the gov losing control, etc. This country has seen riots even in the last few years. If I live in downtown Ferguson and I want to keep mobs from burning down my home and business, then yes, a AR-15(ish) seems reasonable. Hunting weapons aren’t going to work if the other side shoots back.

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                                              • At best, IMHO the anti-gun movement would offer this as a “compromise”, pocket it, and then keep pressing for less and less useful guns. Their actual position is no guns for anyone and this would just be a step along that way.

                                                Darkmatter, do think there are rational positions people coule reasonably hold in the space between “no guns for anyone, ever!” and “citizens should be able to possess whatever weapons the government does!”?

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                                                • Stillwater: Darkmatter, do think there are rational positions people coule reasonably hold in the space between “no guns for anyone, ever!” and “citizens should be able to possess whatever weapons the government does!”?

                                                  I regard myself as a somewhat neutral, disinterested party. I don’t own a gun, I’ve fired one once when I was a 13 year old boy scout, every member of my somewhat-large family is the same.

                                                  I can picture the Gun-Rights-Advocates being fine with more restrictions, i.e. fewer guns. I’m pretty sure they think the mentally ill, criminals, etc shouldn’t be armed. Very seldom do I see them argue for “whatever weapons the government has”. Heavy military weapons are already illegal.

                                                  I’ve never heard the Gun-Control-Advocates being fine with fewer restrictions, i.e. more guns. I have seen multiple high level politicians admit “no guns” is their actual desired policy choice. Take two silly-extreme cases:

                                                  1) In Orlando we had 300 victims watch the shooter reload probably a dozen times in a gun free zone. The victims are mostly young men so some are going to be current/former military/law enforcement. These types of shooters kill until someone else with a gun steps in (and normally they kill themselves then although this one didn’t). And more guns is clearly a bad thing. Totally unthinkable. Apparently in the context of an active shooter, everyone is safer if the active shooter is the only person who has a gun (if I point that out either the conversation ends or they’ll actually try to justify why that is, in fact, true).

                                                  2) A young pretty woman has an obsessive stalker, who the police have arrested for stalking her and who was found with a rape kit in his trunk. She wants a gun she can carry with her… and again this is totally unthinkable. Clearly she’s the one who has mental issues, everyone is safer if she’s unarmed. She can just call campus police (who openly admit they can’t protect her because they don’t have the man power to consistently walk her everywhere).

                                                  IMHO the two sides aren’t equally guilty of failing to reach compromises. When are more guns the answer? When are fewer guns the answer? IMHO the bulk of the GCA movement actually is standing on that fringe caricature you mentioned.

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                                              • roblems:
                                                1) At best, IMHO the anti-gun movement would offer this as a “compromise”, pocket it, and then keep pressing for less and less useful guns. Their actual position is no guns for anyone and this would just be a step along that way.

                                                …that is not how constitutional rights work.

                                                Or, to put it another way: I don’t care what sort of thoughts you have about where things are going. US law exists in the framework of the constitution.

                                                You don’t get to stop constitutional things from happening by saying ‘later, the people pushing this will later want *un*constitutional laws’. So? If they do, then the court will either agree with those laws, in which case the laws are, in fact, constitutional, or they will not and the laws will be struck down.

                                                You can sit there and be paranoid about what is going to happen. I don’t give a damn.

                                                2) Preventing invasion seems like it would be a constitutionally protected activity. If this seems unlikely, then you don’t live on the Texas border and need to worry about drug gangs or people smuggling. At the time of the 2ndAM, everyone lived on the border.

                                                Oddly, I sorta agree with you that ‘defense of state’ maybe should probably be one of those purposes that people can own a gun for. But the court notable *didn’t* include that in DC v. Heller! That list was just self-defense, home defense, and hunting.

                                                Ignoring the court’s list for a second, if we go look at *state* constitutions at the time of the 2nd amendment, almost all of them had the right to bear arms, but explicitly *only* had it ‘for the purpose of common defense’ or ‘for the purpose of defense of state’. (And then *some*, but not all, of them added ‘the purpose of self defense’.(1))

                                                So it seems like, maybe, ‘defense of state’ should be included right next to ‘defense of self’ and ‘defense of home’ that the courts said people have a right to own guns for the purpose of that…

                                                …eeeexcept, traditionally, defending the state isn’t something that individuals do, whereas those are things *are*.

                                                This gets back to my assertions that this wasn’t intended to be an individual right to start with. People were allowed to be generally armed, to generally protect the state via militias.

                                                Now that we *are* saying it’s an individual right…well, ‘defense of state’ doesn’t really work as an individual right, so it sorta got left out.

                                                1) A right own a gun for ‘self defense’ was actually very, very contentious in early America. There were a lot of worries that armed people would start fights and then use the fight as justification for self defense and kill people. Or harass people until those people took a swing at them, and then shoot them. Good thing we’ve totally figured out a way around *that* happening, eh? Right? We actually did figure that, and didn’t just pass laws that would allow people to start fights and then kill the other party?

                                                (I am being told that we did figure that, by creating a duty to retreat…and then we decided to pretend that wasn’t important and people should just be able to kill anyone attacking them, regardless if they could have gotten away. Hrm.)

                                                3) There are situations where you’d need to defend yourself against more than one person. Armed gangs, the gov losing control, etc. This country has seen riots even in the last few years. If I live in downtown Ferguson and I want to keep mobs from burning down my home and business, then yes, a AR-15(ish) seems reasonable. Hunting weapons aren’t going to work if the other side shoots back.

                                                As I will say again, there is no constitutional right to shoot people who are going to burn down your stuff. None. Even the right to ‘home defense’ is working off the assumption that you will be killed when discovered, which is not really what you seem to be talking about.

                                                It might be *legal* to do that in certain places, but that doesn’t mean there’s a *right* to it, and thus the government *must* let you have a gun in order to stop it.

                                                Moreover, I feel I must point you keep going back to Ferguson, and inventing these hypothetical situations where protesters were breaking into and setting fires to businesses with attached houses. They, uh, were not. And there were *no* fatalities, and the only injuries appear to be on the police by protesters, or on ‘protesters’ (Or people near them.) by the police. There’s no record of protesters attacking non-police.

                                                That seems like a *really* weird example to keep using. ‘I might have to shoot *large amounts* of people in defense of my life during an event that literally no one got killed during, and it appears all civilian injuries were caused by the police.’

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                                                • “It might be *legal* to do that in certain places, but that doesn’t mean there’s a *right* to it, and thus the government *must* let you have a gun in order to stop it.”

                                                  This here is a problem. The left or ‘social’ folks will ignore individual rights and tell you the social constructs ‘let’ you have permission. Complete horseshit!

                                                  If you have some measure of individual constructs like what ‘self preservation’ should look like and someone is approaching you with the obvious intent on murdering you, you don’t fuck around with social constructs.

                                                  You reach for whatever individual constructs/means you have to defend yourself or insure your survival (even if that construct is turning around and running like a bat outta hell). To depend on an outside social construct is repeatedly one of the most ignorant things that humans often do.

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                                          • What I find most interesting about incorporation is that while there is a strong historical case that the framers of the 14th Amendment had Barron v Baltimore in its gunsights, it took until the 1950’s or early 1960’s for incorporation to find its way into constitutional doctrine, largely done through Footnote Four. Still, in practice, incorporation, especially with the 2nd Amendment, gets messy.

                                            Starting shortly after Slaughterhouse and going all the way to the 1930’s, state laws scrutinized on federal constitutional grounds were doneso under due process and nothing more. Did a law meet or exceed the state’s authority?

                                            Meyer v Nebraska was a much cleaner decision than Griswold v Connecticut yet both dealt with privacy.

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                                    • It means if the federal or state governments hasn’t passed a law, the people can simply do it. It isn’t a world where everything not specifically allowed by the state is forbidden for the people, rather everything that isn’t expressly forbidden is allowed.

                                      That…is not what ‘powers’ means.

                                      Assemble is hardly something which can apply to the states

                                      Because the states and the people are two different things. The states are sovereign entities collected under a union, and the people are…people. (That term ‘people’ is pretty clearly defined in the preamble.)

                                      The states, incidentally, *do* have the right to assemble…it’s called a constitutional convention. ;)

                                      and “petition” is certainly something you can do, individually, to a court.

                                      Well, you’re wrong a little, right some, and then the entire thing is a typo. ;)

                                      First, a filing in court was not called a petition at that time of the constitution. The right to petition is from England, where people had the right to petition both the King and Parliament. And it was generally expected to be a group thing. (In fact, there were specific rules to *limit* the number of people that could sign a petition, under the charge of inciting a riot!)

                                      That said, Blackstone seems to think it is an individual right, that an individual had the right to petition the legislature. So….maybe I’m wrong…wait, let’s check the origin of this.

                                      Here is what the Virginia Ratifying Convention (The signatories in VA who didn’t want to sign without a bill a rights added, and actually came up with most of it.) proposed *originally*:

                                      That the people have a right peaceably to assemble together to consult for the common good, or to instruct their Representatives; and that every freeman has a right to petition or apply to the legislature for redress of grievances.

                                      So what I’m actually inclined to say is…yes, you’re right, the right to petition the government (Or, at least the legislature) is indeed an individual right (Well, a right of every freeman, at least.)…and some sort of weird shortening and merger accidentally put it as a right of ‘the people’ instead. Probably because they were intending the mirroring I pointed out and didn’t notice it didn’t make sense. Oops.

                                      Still less stupid a mistake than allowing an infant foreign vice president, something the constitution also allows.

                                      It’s not an individual right? Can we collectively be secure without any of us individually being so?

                                      We could collectively be secure with *most* of us being secure, if that’s what you’re actually asking.

                                      But let’s flip this around. The constitution says that warrants must be signed by a judge and follow due process. That’s it. Is it okay for the government to write a law saying ‘It is now illegal to possess air.’, allowing warrants to be be issued on literally every single person and every plot of land and every object? I mean, that follows the actual literal rules of ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’

                                      No, it’s not okay, because in addition to the *rules the government is locked into*, there is a general principle stated that people are supposed to be secure *in general* against that sort of thing.

                                      Now, we currently have a habit of just *inventing* these general rights. For example, almost no one disagrees that the internet is covered by freedom of speech and press, despite the fact the text doesn’t say that, as a *general principle*.

                                      But that’s because we’re used to operating under those general principles. The people who demanded the bill of rights couldn’t see the future, or know we’d think that way. They put some very explict individual rights in there, but they also put collective rights in there and all sorts of general terms like ‘speedy trial’ and ‘cruel and unusual punishments’, as general principles that we would hopefully be smart enough to take as general ideas about how things should work, even if they didn’t put in a timeframe for ‘speedy’ or a list of prohibited punishments.

                                      Trying to argue it’s a ‘collective’ right would be fine if you were also claiming the people could use it collectively without the government’s permission.

                                      Collective rights aren’t necessarily things that are used ‘collectively’, they’re things that *generally* are rights, that should exist for society in general. (EDIT TO CLARIFY: …while perhaps not existing for every individual person in society.) However, that does not change your point, in that you want to know when, exactly, the 2nd amendment rights can be exercised despite the government opposing such use. (Which is the definition of ‘rights’, after all. We wouldn’t need to demand the government not infringe them if the government was fine with them!)

                                      And for that, we end up in several tangled little problem. The reason that it’s a collective right isn’t important because it would mean anything about the Federal government. (I would normally agree entirely with the idea that the Federal government should not be restricting the right to bear arms, except in small specific ways.) The fact it’s a collective right is is important for *incorporation*.

                                      Because, the 2nd amendment, at the time it was written, *did not bind the state governments in any way*. The intent of the law, as I see it, was to keep the *Federal* government from disarming militias, or disarming men who would be called to *form* militias, even if not actively in one.

                                      While it wasn’t specifically worded as a protection for the states, in practice, that’s what it was, allowing states keep their militia, and possible militias, from being disarmed.

                                      The state government could do *whatever the hell they wanted* WRT gun regulation. Most of them had parts in their constitutional having a right to bear arms…but only for the common defense. And another half added self-defense in there. None of them had any sort of unrestricted right to bear arms. (Please note these were *rights*, aka, the minimum level. States, could, of course, allow people to have guns in other situations also, even if people had no ‘right’ to that.)

                                      So, to recap, the way this was supposed to go: The Federal constitution stops the government from banning any arms, because the state governments might want to use those things in militias. The state constitutions *sometimes* seem to think only militias were a reasonable justification for a right to have guns, and sometimes also granted a right for them for self defense. (Again, that’s what the constitution of the state demanded as a *minimum*, state law could allow them for whatever.)

                                      Got that?

                                      So you want an example of the 2nd amendment working, here is a hypothetical: The US government, in 1950 or whatever, not liking the rumblings coming from the South before the civil war, attempts to ban private ownership of firearms. Gun owners sue, waving the state law that says all able bodied men are members of the militia, saying this is clearly an attempt to disarm Southern militias. The court agrees, and the right is affirmed. (Whether or not the Federal court would *actually* rule that way at that time is an interesting question.)

                                      And then the 14th amendment came along, and somehow the 2nd amendment got incorporated also, despite the fact no one had really ever suggested that owning a gun outside a militia was *actually* a right. The entire 2nd amendment was *supposed* to basically be ‘The ability to control guns is entirely a state right, we’re not allowed to mess with that up here’, and ended up being something states had to follow also, so *no one* could control guns.

                                      Except the courts haven’t actually said that.

                                      —–

                                      But I think, perhaps, this entire discussion is pointless. I don’t *agree* the 2nd amendment is an individual right, or that it was supposed to be…but I do know DC v. Heller happened, and there is *now* some sort of individual right to gun ownership for self defense and home defense. (And hunting, somehow, despite the fact that’s restricted severely in many ways? That doesn’t make much sense to me. Logically, no one has a right to kill presumably government-owned wild animals.)

                                      In other words, trying to convince me is pointless. I don’t think it’s the right interpretation of the 2nd, but it *is* the current interpretation.

                                      Which is why everything I’ve proposed is intended to work within that framework: A complete and total *tracking* of firearms, (No one has ever suggested any sort of right to *anonymous* gun operation!), and restrictions on what *kind* of firearms can be used for those constitutional protected rights, based mostly on reload speed. (And if you want guns for *militia* purposes, which the court was oddly silent on, that’s what armories are for.)

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                                      • dark-matter It means if the federal or state governments hasn’t passed a law, the people can simply do it. It isn’t a world where everything not specifically allowed by the state is forbidden for the people, rather everything that isn’t expressly forbidden is allowed.
                                        DavidTC: That…is not what ‘powers’ means.

                                        It’s one of ‘powers’ definitions in legal-dictionary.: Powers: The right, ability, or authority to perform an act. http://legal-dictionary.thefreedictionary.com/power

                                        dark-matter Assemble is hardly something which can apply to the states
                                        DavidTC: Because the states and the people are two different things.

                                        We’re talking about whether or not ‘the people’ refers to states’ rights.

                                        DavidTC: We could collectively be secure with *most* of us being secure, if that’s what you’re actually asking.

                                        What I’m asking is if being secure in my house is a right I have as an individual. Despite trying to relabel this as a ‘general principle’ the clear answer is ‘yes’.

                                        DavidTC: and some sort of weird shortening and merger accidentally put it as a right of ‘the people’ instead.

                                        I think that completes the set. Are there any references to ‘the people’ in the Bill of Rights that are not exceptions or mistakes? As far as I can tell, the Bill of Rights consistently uses ‘the people’ when it’s talking about individual rights. And this is after using the most restrictive syntax possible, it’d be real easy to claim freedom of speech links to ‘the people’ in the first AM, etc, etc.

                                        DavidTC: Because, the 2nd amendment, at the time it was written, *did not bind the state governments in any way*.

                                        Other than the 2ndAM, what other parts of the Bill of Rights get that carve out?

                                        DavidTC: I don’t *agree* the 2nd amendment is an individual right, or that it was supposed to be…

                                        The people that voted this thing in were gun owners. If we try asking that segment of today’s society what they think of the 2nd, imho they’re not going to agree with you. You and I have a lot of respect for the State and the State’s power, the people who voted in the 2nd would not because by modern standards theirs was a failed state (the State didn’t have a monopoly on the use of violence).

                                        DavidTC: However, that does not change your point, in that you want to know when, exactly, the 2nd amendment rights can be exercised despite the government opposing such use.

                                        As far as I can tell, a good sum up of what you said was: ‘If your State gov opposes this right, “Never”.’

                                        DavidTC: Which is why everything I’ve proposed is intended to work within that framework: A complete and total *tracking* of firearms, (No one has ever suggested any sort of right to *anonymous* gun operation!)

                                        What compelling gov interest is there in tracking, and what sort of tracking was done back in the day? Keep in mind that criminals already don’t bother with background checks, so this is only going to effect law abiding citizens.

                                        To be fair I can picture legit gov interests… but this seems like a first step in confiscation. That’s especially true if you’re openly claiming you don’t see an individual right, are just waiting for the Supremes to dismantle the 2ndAM, and want to ban entire classes of weapons.

                                        DavidTC: (And if you want guns for *militia* purposes, which the court was oddly silent on, that’s what armories are for.)

                                        This is nonsense considering you’re also claiming I don’t have the right to start or join a militia.

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                                        • It’s one of ‘powers’ definitions in legal-dictionary.: Powers: The right, ability, or authority to perform an act. http://legal-dictionary.thefreedictionary.com/power

                                          You’ve managed to flip the definitions of powers around *within* the same amendment.

                                          You’re trying to argue that that line gives people, for example, let’s say, the right to jaywalk *unless* the Federal government or state…banned it? Wait, that’s not what it says. It says that the people have the powers if the state or Federal government is not *delegated those powers*.

                                          The Federal government cannot jaywalk. The state government cannot jaywalk. It really seems unlikely they can be delegated the ‘power’ to jaywalk, or that that makes any sense at all.

                                          The ‘powers’ being talked about in the tenth amendment are *powers of the government*, not ‘actions of people’.

                                          This isn’t actually under debate. This is pretty well settled as constitutional law what ‘powers’ in that amendment means. Hell, it’s what the word ‘power’ means *in the entire constitution*. ‘The Congress shall have Power To…

                                          (Which *specific* powers are and are not delegated to the Federal government is under debate, and has been for some time, and it depends on how you define ‘general welfare’ and ‘interstate commerce’, but the actual meaning of the word ‘powers’ there are not.)

                                          I’m not going to have a damn ‘constitutional basics’ class.

                                          We’re talking about whether or not ‘the people’ refers to states’ rights.

                                          Dude, literally the paragraph *before* this you have a line saying that the states have powers, and if the states don’t use those powers the people have them.

                                          Clearly ‘the people’ are not the same as a state.

                                          The people are the people who live in the states. ‘We the People of the United States of America’. (Something which, I’ve noticed, you’ve completely ignored that it can’t *possibly* be a reference to individuals. Individual people are not creating a government in the preamble…the abstract concept of ‘the people’ are.)

                                          What I’m asking is if being secure in my house is a right I have as an individual. Despite trying to relabel this as a ‘general principle’ the clear answer is ‘yes’.

                                          Erm, no, it’s not. If you had a *right* to be secure in your home, the US government couldn’t infringe on it without a court order…but it *can*. For example, in emergency situations, or mass evacuations.

                                          Other than the 2ndAM, what other parts of the Bill of Rights get that carve out?

                                          I guess I *am* going to have a ‘constitutional basics’ class.

                                          For the record: NONE of the bill of rights applied to the states, except sorta the 10th. None. At all. The states were not required to follow any of them until the 14th amendment passed, and that fact, though based off the 14th, wasn’t actually decided until the 1940s.

                                          Hell, New Hampshire had a frickin state religion until 1877. And a bunch of other states almost as long. Not as some sort of weird accidental oversight of the law, or because no one challenged it…but because it was literally entirely legal at the time. The 1st amendment did not restrict *state* laws. (Most states had something like freedom of speech and press in their constitution.)

                                          What compelling gov interest is there in tracking, and what sort of tracking was done back in the day?

                                          First of all, there doesn’t *have* to be a compelling government interest in that. The government needs a compelling interest to infringe on a right, not to make a list of people using that right.

                                          However, um, there were *all sorts* of firearm registrations in the period after the revolutionary war. There were mandatory censuses conducted door-to-door by state governments in the 1700s and 1800s. The purpose of that was a) to make sure people were armed, and b) to allow the government to *seize* those firearms…not so much as to keep them out of the owner’s hands, but to use them *in* various wars.

                                          Hell, during the Revolutionary war, they went door-to-door and seized the guns of people who refused to change their alleigency from England. Granted, that wasn’t ‘America’ doing that, but whatever.

                                          Additionally, uh, I hate to break it to you, but there *already is* tracking of weapons…that are sold via gun dealerships. There’s no any logical way that could be constitutional but remanding people register private transfers couldn’t. Likewise, there is already tracking of certain *types* of guns, like fully-automatic weapons, no matter how transferred.

                                          That’s especially true if you’re openly claiming you don’t see an individual right, are just waiting for the Supremes to dismantle the 2ndAM, and want to ban entire classes of weapons.

                                          You seem to begging the question there.

                                          If the 2nd amendment is ‘dismantled’ (By putting the interpretation back to what it was before DC v. Heller), than registration cannot *possibly* be unconstitutional.

                                          You can’t just only accept outcomes of the courts when you *like* them. I’m not running around claiming that seizing all guns would be constitutional, as it is clearly not. I’m arguing the 2nd is not *supposed* to mean that, but I accept the reality of the courts saying otherwise…and what they have *actually* said, not what the pro-gun people seem to think the decision says. (Namely, that people have an individual right to guns for specific purposes.)

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                                  • I think dark at least has a pretty good grasp that ‘the people’ in the context of the second is about individuals. In the Declaration of 1689 the ‘bear arms’ part was actually referring to subjects, as in individual subjects.

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      • Given how reluctant the SCOTUS is to overturn itself, even when it was horribly wrong, that is a lot to hope for.

        This is actually a really huge question.

        It’s only fairly recently that SCOTUS justices have been fairly definitely sorted along fairly clear ideological lines, where you can expect voting on politically salient cases to fairly consistently match the expectations of the political coalitions that led to their nominations,confirmations. (You can thank Justice Souter’s grossly failing to meet those expectations for a major acceleration of that process since the 90s.) It’s also only fairly recently that the Court fell into a roughly equal distribution between liberals and conservatives (the familiar “five-four split” – not much of a split in bowling terms, but here, yes).

        It’s ALSO the case that prior to the Obama(-Clinton?) years, conservatives had managed to put together something of a working majority on the Court, and made some pretty significant strides toward the broad set of goals set out by the judicial conservative movement that’s been the legal academy’s/legal politics’ most vital political force since the ’70s or 80s. AND, these strides have been especially accelerated since the installation of the younger President Bush’s nominees, so, again, only quite recently.

        AND it’s the case that much of this was not really, REALLY at play until the death of Justice Scalia, because conservatives (of different kinds) still held a majority on the Court, and would have through the next president’s term – unless, well, unless what happened with Scalia – happened. But it did, and now it all very much is at play. If Clinton wins, the Court stands to undergo a fundamental ideological shift (assuming the Senate returns to something like the precedent for how it dealt with nominations in divided government that it operated by since, well, I actually have no idea. Let’s say the 1980s just to be safe).

        Obviously not saying things people don’t know here. But this is where your question really comes in, . I actually don’t think a new Liberal Court will be particularly hesitant to overturn Court precedent in general. It’s an unparalleled political opportunity (to right legal wrongs, they would argue!), and could be fleeting, and it’s one the left has rarely, arguably never, enjoyed in recent times. But I’m curious to see what factors will cause them to move with more or less abandon. Will it look better or worse to overturn recent precedent, compared to older precedent? Will it make the Court seem erratic and too obviously political to overturn decisions from 5, 4, 2 terms ago? Some of those decisions are the ones the Left will be most eager to attack (though not exclusively). But in fact, the older a precedent is, the more weight it is thought to have in the law (is that not roughly true, counsellor @burt-likko?).

        Will there be something of a temporal sweet spot for the vulnerability of the precedents of conservative jurisprudence? I’m very interested to see how this works…

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  3. The No-Fly list, as currently constituted is a stain on our national honor. But there’s no way politically to touch it. I think Susan Collins knows all this.

    I’m too cynical by half. I suspect that her motives were to call attention to what a monstrous clusterfuck the No-Fly List, in its current state, is, not to introduce new restrictions to gun ownership.

    Of course, you could reform the No-Fly list, and bring in some due process, at which point it would entirely appropriate to restrict the ability to own guns to people on the list.

    Oh, and yeah, I pretty much agree with everything else, Burt. Very well done.

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    • The no-fly list combined with the assassination list is worse.

      Given our form of government and constitution, both lists should be public (or at the very least, known to the people on them) with full process to contest the judgement. Even people we want to assassinate should have the right to challenge their assassinate status – unreservedly so if you are a citizen.

      Regarding guns and restraining orders… there’s a certain logic to it; but it seems to me you would have to radically change the nature of securing restraining orders if it were to carry with it an abridgment of constitutional rights. Might be worth it, but seems it would have to carry a higher burden of proof plus the ability for the person being restrained to more vigorously contest. In the world of unintended consequences, it might even escalate violence.

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      • I can’t speak to most states but here in California most civil harassment and DV restraining orders do contain a provision requiring surrender of firearms. There’s even a special order specifically requiring that in other cases.

        Now, if the retaining order isn’t later proved up, you get your guns back, and were were usually talking a period of about a week between the initial order and the contested hearing.

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        • Interesting… is this strictly enforced? Do officers go to the home of the restrainee and search? Seems that the proviso to surrender and the actual surrendering might be somewhat in the realm of wishful hoping? But not having been on either side of one, I’m going on gut feeling vs. research… so appreciate the correctives.

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        • you get your guns back

          That’s how it’s supposed to work. In some jurisdictions, you may as well write them all off, because you’ll spend more in time & legal fees getting a judge to order LE to return the property than they’ll likely be worth, and the judiciary & legislatures don’t seem eager to adequately punish LE that play that game.

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  4. Great essay Burt.

    There are also a lot of times when my lawyer side makes it hard for me to get along with my fellow liberal friends because they want something that is rather popular but clearly unconstitutional. The latest example is the campaign to pass a law that bans companies from photoshoping models. I get why this is popular on my side but it is also clearly unconstitutional on its face.

    That being said, rights are not unlimited as you point out and there is nothing in the legal oath that says lawyers can’t argue for changes or modifications on what is perceived to be constitutional or not. Lawyers do this all the time. The Heller court left room for regulation and the side that supports gun control has a right to fight for the regulations they want. The terrorist watch-list might be a bad example of a regulation but there are others that are good. I think a 72 hour cool-off period is a good idea. If women have a waiting period for getting abortions, why shouldn’t one exist for gun purchases.

    But it seems to me that gun ownership is becoming more and more of a cultural issue as well. Specifically it seems to be a very urban v. rural issue (but not completely). The New Yorker article that someone posted yesterday in Tod’s thread is illustrative. Fewer Americans own guns but those Americans tend to own a lot of guns. Guns sales seem to spike after mass shootings and mainly in rural areas for some reason.

    The big issue is that I do think the NRA has a very Cavalier attitude towards mass shootings and sees them as acceptable collateral damage for unlimited gun rights.

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    • Oh, not becoming, it’s a full bore cultural issue. That was, IMHO, a big part of the NRA strategy. People fight for their culture like nothing else. It’s why Gun Rights groups can mobilize constituents at the drop of a hat. Every little thing is portrayed as attacking the culture of responsible gun ownership, and no one seems to have a really good way to counter that*.

      *One of the things GRA do is take people who are on the fence to the range, teach them to shoot in a safe, responsible, and fun manner. If people have a good time shooting, and feel a sense of accomplishment at being able to hit a target, they’ll have positive associations with the experience and the right. So far, what the GCA crowd seems to have is stuff like this (which was mocked by linking to videos of young children enjoying themselves at the range).

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      • I think the kid video thing also shows another big cultural divide between the sides.

        The guy claiming PTSD was kind of silly but the my 7 year old girl can fire an AR-15 is not going to do anything but preach to the choir. One of the non-gun control arguments that the left has been discussing recently and especially since Orlando is the role that toxic masculinity plays in violence whether it is rape or mass shootings or something else.

        The laughing at the liberal reporter strikes me as exactly the kind of toxic masculinity that liberals despise and find so dangerous. The guy is taking a very narrow frame to what masculine behavior is and saying any guy that does not meet his narrow definition does not count as a man. That definition seems to be that real men are rural and into guns at least.

        I don’t think that is going to convince anyone.

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        • While in the responses to that article, I’ve seen examples of that kind of toxic masculinity, the main thrust was more one of, “My God man, you are an adult! This is something a child can, and does, do.”

          In his effort to portray firing an AR-15 as terrifying, he damaged his own credibility, and while there will be some who don’t see that as an issue, to others who aren’t invested in his brand, it’ll hurt him, and there is a good chance they’ll see it as nothing more than pearl clutching. What will he write about next, the horrors of butchering game or livestock?

          Now, had he written about firing a medium or large bore hunting rifle, he’d have more credibility, since those can be painful and a bit intimidating the first time you do it, which is why most people new to shooting start off on smaller caliber weapons, like a .22LR, or the .223/5.56 (things I learned to shoot when I was 10). Learning how to shoulder a weapon and set your stance to handle recoil is important and it’s difficult to do if you are dreading the recoil of a larger weapon.

          I get that not everyone enjoys shooting, and I get that even a small caliber rifle is loud, and has a recoil, and there are people who don’t enjoy that experience. I know lots of people like that. But those people are not talking about how horrific that experience was through a national platform, making specious claims to experience PTSD, in a transparent attempt to sway public opinion regarding it. Hell, to be honest, it’s those last two things that irk me so. Claiming PTSD because of it, and then using that singular experience to try and sway public opinion.

          He certainly has the right to write about it, but everyone else then gets to point out that his experience is hardly representative, and he obviously has an agenda in doing so.

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          • While I was mentally composing the OT, I went out to lunch with several of the other lawyers in my firm. One of the name partners here is a man about twenty years older than me. He fought the Viet Cong for just over a year and has been fighting the demons he brought home with him from that fight for just over thirty years.

            So we take our seats at the restaurant and there’s another fellow, ten years or so older than our name partner, who recognizes him. Hey, how are you doing, that sort of stuff. Then the guy leans over to our partner and says, “Hey, I just got a CCW and the cop said I needed to have a good criminal defense lawyer on speed dial. Do you know anyone?”

            My colleague’s reply was, “Yeah, I had a CCW for about ten years after I got back home. Watch yourself with that thing, hear?”

            Dude with CCW: “Well, it’s just there as a last resort. You know, I’m a deacon at my church.”

            My Colleague: “I’m telling you, it becomes the only resort. You run into a bad guy, you’re going to know that the situation can end with you ending him. Makes you either back down or makes you use the piece. No other choices. Unless he sees the piece, and then he uses it on you.”

            Dude with CCW: “But there could be a guy just walks in and opens fire in my church!”

            Our partner holds up his hands in the “no foul” pose. “Hey, I’m not telling you what to do. This was my experience. The guy you want is Joe Schmoe, his office is down in the Valley. Good luck with that CCW.” Dude with CCW continues to mutter about how he wants to defend his congregation, but the conversation is essentially over at that point — and on a much less politic note than we’re used to ending such interactions.

            As I read it, the whole point of the conversation was the dude fishing for praise for getting a CCW, bragging that he had the CCW, and not getting the feedback he wanted. Is this “toxic masculinity?” I’d say it was closer to “Massive insecurity” but maybe that’s my prejudices creeping into my armchair diagnosis.

            I couldn’t find a place to fit this little vignette into the intellectual structure of the essay, which is already really long. But believe you me, my witnessing that exchange was bumping around in my mind rather a lot as I wrote the OP.

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            • My Colleague: “I’m telling you, it becomes the only resort. You run into a bad guy, you’re going to know that the situation can end with you ending him. Makes you either back down or makes you use the piece. No other choices. Unless he sees the piece, and then he uses it on you.”

              This.

              I have my CPL, and before I got it, I thought long and hard about that choice. I eventually came down on the side of “You win 100% of the fights you never get into.” I got nothing to prove, so while I keep the permit current, I only “use” it when I’m out in the wilderness on a hike. Where I live, the chances of needing a gun about town are vanishingly small, such that I might as well be anxious about random meteors hitting me.

              That said, I won’t judge another person who thinks they need to carry, I would just offer similar advice. If you feel like you need to carry, that’s fine, but think long and hard about what you would do should a confrontation arise, because you don’t want to be wondering what to do in the moment.

              This is one of the reasons I do think people who want a CPL/CCW should have to get range and scenario training . The only exception I would make is for people who have a protection order. For them, the order would stand in for a permit until either the order expired, or, should it be made permanent, until they could complete the training requirements to get a CPL (within a reasonable time frame). But overall, I doubt most people honestly think about what they would do, besides being the hero of their own fantasy. Some scenario training is a great way to make them realize they aren’t Odin’s own Gunslinger, and get them thinking about it soberly.

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              • It’s all fine and good to ask for training, but what if the guy still can’t hit the broad side of a barn?
                *I do know someone who used a gun in urban combat. DC was a bit scary in the 1990’s.

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            • There’s a line in pro gun circles about understanding the magnitude of what you are doing. I’ll share an ancedote. A gf of mine was complaining about rash of home break ins in her neighborhood. She said “i’m getting a gun”. I said “are you prepared to kill someone in your house and deal with the social, legal, physic consequences? Be damn sure you are before you pull the trigger.” She said yes. “Are you prepared to see a dead body and to have your daughter see that too?” No she said. “Then don’t get a gun”.

              You gotta own the decision. That decision is often life altering not only for the other guy but for you as well. MAKE DAMN WELL SURE YOU’VE THOUGHT THAT THROUGH.

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        • As points out, “toxic masculinity” is not a well-defined term, as opposed to “toxic conflict,” which is a term I learned in both Negotiations class and Conflict Management; i.e., conflict is “toxic” when it is relational or based on identity issues.
          But I believe your statement could use unpacked a bit, ; as this illustrates quite clearly the conservative principle-driven aim from the liberal position-based view.

          You call this guy’s “masculinity” “toxic” because you happen to disagree with him.
          Disagreement doesn’t make him “wrong;” it makes him different.

          Granted, I am no gun enthusiast. My position on firearms is somewhat hard to pin down with traditional labels, as it favors restrictions in some instances, e.g., within municipalities, and lifting restrictions in others, e.g., that even felons should be permitted to hunt, within daylight hours, provided someone vouch for them, and the person so vouching accompany them on the hunt.
          So, there’s a short insight into my own personal position on the matter, which is why I typically stay out of such discussions.
          I know I’m not going to change anyone’s mind, and no one is likely to change mine.

          Now, back to what you see as “masculinity,” which could, perhaps more accurately, be described as “bravado” or “swagger.”
          Frankly, I see the Left writ large attacking “masculinity” a lot these days.
          One fine example is the recent meme that one in four college-age females will be sexually assaulted at some point during their time as an undergrad, and this is known as “college sexual assault.”
          Yet, if you actually look at the data set this comes from, you will find that over half of these “sexual assaults” occur off-campus.
          You will also find that less than 25% of respondents account for over 80% of these “sexual assaults.”
          I’m not saying to has to do with the clothes she was wearing– but it probably has something to do with the people such persons choose to hang around with.
          Further, the study’s authors use the term “unwanted sexual contact,” which covers something like someone grabbing your butt at a party and not knowing who it was, which, though churlish, could hardly be viewed as fit for branding a person a “sex offender” and placing them on a public registry for the rest of their lives.

          I’m getting a bit off-topic here with my illustration, and so I would like to return to the main point.
          This man has a right to be who he is, even if I disagree with him.
          Which is sort of what the OT was saying about the neo-nazi march.
          And I would rather him be allowed to be who he wants to be, even if he is an total asshole for doing so, rather than twist ill-chosen descriptors into knots with which to bind him and restrain his precious freedoms.

          Which is why gun control is doomed to failure anyway:
          It is far more effective to create better people rather than better laws.
          More people chopped with hatchets is not the answer.

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          • Now, back to what you see as “masculinity,” which could, perhaps more accurately, be described as “bravado” or “swagger.”
            Frankly, I see the Left writ large attacking “masculinity” a lot these days.
            One fine example is the recent meme that one in four college-age females will be sexually assaulted at some point during their time as an undergrad, and this is known as “college sexual assault.”

            The fact that you yourself are associating sexual assault with masculinity is particularly telling in this instance, at least from certain perspectives.

            Yet, if you actually look at the data set this comes from, you will find that over half of these “sexual assaults” occur off-campus.

            And? If kindergarten children are injured at a water park are they less kindergarten children than they were before?

            You will also find that less than 25% of respondents account for over 80% of these “sexual assaults.”
            I’m not saying to has to do with the clothes she was wearing– but it probably has something to do with the people such persons choose to hang around with.
            Further, the study’s authors use the term “unwanted sexual contact,” which covers something like someone grabbing your butt at a party and not knowing who it was, which, though churlish, could hardly be viewed as fit for branding a person a “sex offender” and placing them on a public registry for the rest of their lives.

            Newsflash: Unwanted sexual contact is sexual battery. If I slap you in the back of the head, that’s battery. It’s not churlish, it’s criminal. And so is grabbing or smacking someone’s ass without consent. Probably misdemeanor in most jurisdictions and unlikely to be charged let alone convicted unless it’s part of a multiple count proceeding but criminal nonetheless. The fact that you think otherwise is, in fact, exactly the problem. And it’s not the “Left’s” problem, it’s yours.

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      • So far, what the GCA crowd seems to have is stuff like this (which was mocked by linking to videos of young children enjoying themselves at the range).

        That’s idiotic.You know what else is loud? Rock concerts. Action movies. Jackhammers. None of them cause any sort of psychological problems. (Hearing loss, on the other hand…)

        And people are damn right to complain about his use of the term PTSD, which is a real actual condition, and is caused by *trauma* and the brain being reprogrammed where the experience of the trauma is moved from declarative memory to procedural memory (Where actual *experiences* do not generally belong.), at which point they sorta become out of control of the victim. (At least, it’s what current thought is)

        Humans are really good at learning how to do things without any sort of conscious effort. We *suck* at unlearning those things (‘Remembering how to ride a bike’ without having done it for decades is *literally* a cliche.) …especially when what we have ‘learned to do’ is ‘remembering trauma’, which isn’t even ‘doing a thing’!

        PTSD is not ‘I felt irritable for a few hours’. Something which, in fact, I suspect *didn’t even happen*. The guy just made it up. Randomly doing a new activity for an hour is not going to cause that as any sort of psychological effect. (As opposed to just being *annoyed* he was doing something he didn’t like to do.)

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        • As I’ve mentioned before, my wife has/had PTSD (not sure if you ever really recover as opposed to just learning ways to cope) from a horrific head on collision we were in years ago. For her, a trip to the range was honestly triggering (noise & smell – airbag accelerant has a similar odor to gun powder), so his claim to PTSD, as specious as it obviously was, kinda pissed me off.

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    • I was mostly with you until you brought the NRA into it. They have powerful influence on the hill but I don’t think it has much to do with why sales spike or even why it’s a cultural issue. Sales spike because people who see firearm ownership as a right are worried it’s about to be taken away or greatly restricted. GCAs may in some instances pay lip service to the right to bear arms but I think it’s clear that most don’t really believe it or are so ignorant about firearms and related policy that their intentions don’t really matter.

      The problem is a trust deficit. I’ve said before that their are new restrictions I’d be willing to live with but I find it impossible to distinguish between GCAs who really believe there’s an important political right at stake and those who see every regulation as a means of frustrating the exercise of a right that they don’t believe anyone should actually have. I mean, would you say NARAL’s cavalier attitude about the poorly run abortion clinics that are out there is somehow related to the pro choice movement’s hostility to new regulation on clinics that provide abortions? I think you’d rightly say such a claim is absurd.

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      • Saul Degraw: The big issue is that I do think the NRA has a very Cavalier attitude towards mass shootings and sees them as acceptable collateral damage for unlimited gun rights.

        I don’t own a gun myself so I mostly don’t view myself as having a dog in this race, but after every mass shooting we see a bunch of policy “solutions” that wouldn’t have prevented the shooting and are pretty openly one step further towards disarming everyone. Admittedly that’s not the plan for this year but it does seem to be the world view fueling it.

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  5. “New California attorneys being sworn in to practice (not me). ”

    You mean you don’t have full sleeve tattoos. That’s a shame ;)

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  6. Burt,

    Would making the production of guns illegal violate the Constitution? As a layman, it doesn’t seem that it would: you could still buy and sell guns already “in circulation”, buy from overseas (barring restrictions on that), and own and posses the guns you already own.

    I’m not actually proposing this, I’m just trying to understand how the parsing of the language works. The Constitution speaks of the individual’s right to keep and bear arms. It doesn’t seem to say anything of anyone — individually or collectively — having a right to produce them. But barring production seems to go pretty far towards restricting keeping and bearing. So how does that work?

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    • Heller and its progeny are silent on this. The Second Amendment doesn’t speak to it in any direct or obvious sort of way as far as I can tell.

      Now, you might get some other kinds of challenges to a firearms manufacturing ban: what comes to mind immediately for me is whether that constitutes a regulatory taking and thus violates the Fifth Amendment. What can one do with a gun factory when one isn’t allowed to make guns anymore? If there’s an answer to that question that is economically viable, then I don’t see a Constitutional problem.

      Probably still not a great political move, though.

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      • Oh, I agree. Guns provide an easy(ish?) opportunity to explore the relationship between the right to have and the right to possess, a relationship which is not limited to the gun industry.

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      • Politically, the first hurdle is, “Where do cops & soldiers get their guns from?” While it is common for nations, including the US, to purchase weapons from other nations, telling the country that all firearms have to come from overseas suppliers is a hell of political hill to die on. No nation would want to be dependant upon another for their arms.

        Aside from that, weapon smuggling into the US would explode, as would a vigorous cottage industry in shop built arms (see: Khyber Pass).

        It’s an interesting thought experiment, though.

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        • I didn’t consider the cops and military thing. Ideally, the cops would have far fewer guns but that is probably an even BIGGER political non-starter.

          Again, I have no interest in actually pursuing or supporting such legislation. I just wanted to riff of Burt’s (outstanding, which I neglected to say) breakdown of how the actual texts of the laws and various decisions pertaining to the law work in practice.

          Of course, pulling too hard on this thread quickly reveals myriad ways the government can curtail our rights through roundabout ways. “You can still protest in the square… it just sucks for you that bull horns, oaktag, and Sharpies are all illegal now.” “Of course you are entitled to representation! It’s just a damn shame that the bar costs $20M to take and we now have a lawyer shortage. We’ll get you a PD in, oh, 10 years? Shoulda thought about that before you jaywalked!” “We’re not quartering troops! We simply used eminent domain to turn your house into a military base.”

          Wait… that last one might have actually happened. Ugh…

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  7. Will H.:
    Redefinition is exactly what happened in Second Amendment jurisprudence.
    Prior to 1970, it was generally accepted that the right to bear arms was a right held by the states.
    After about ten years of one of the most successful propaganda campaigns in history by the NRA, the individual right came to be accepted.

    The typical person back when the 2nd AM was passed would have been a farmer (90% rural back then), and farmers like guns. The typical person would have lived within a day or two’s ride of dangerous animals, indians, etc. They’d just lived through a repressive government where the common man had picked up his guns and overthrown the government.

    This is not a description of someone who would be in favor of central government control over guns, any more than it’s a description of someone who would be in favor of central government control over speech or assembly.

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  8. Sir,

    First of all, good article, you seem to be fact driven which is a good thing.

    On the other side of the aisle, I don’t see a lot of good faith interest in trying to find ways to do things that the Constitution does allow to identify that .1% and keep them from murdering people. When the NRA opposes pre-purchase background checks, it’s difficult to take their claim to want to keep guns out of the hands of bad guys seriously.I’m not with the NRA but it’s very easy to see “pre-purchase background checks” become “no one, ever”. Given how difficult some members of government want to make it to have a gun, it’s difficult to believe the gov will administer this in good faith. One of the big purposes of rights is to prevent government abuse.

    As I see it, we have four, mostly unrelated problems.

    1) Suicide. Note it’s somewhat dishonest to include suicide in with gun crime because other countries which are gun free have similar suicide rates.
    Solutions: Not sure we have one.

    2) Thug on thug crime.
    Solutions: End the war on drugs. Maybe ‘stop and frisk’ in some areas.

    3) Mass murder by nuts.

    This is so rare it really shouldn’t be driving the discussion, but somehow it is. We don’t have a solution. A ‘background check’ wouldn’t have stopped the last guy (a professional security guard who has passed mental health checks), nor anyone who is willing to plan things for months/years. IMHO it’s worth pointing out that disarming the victims with these ‘gun free’ zones seems counter productive.

    4) Government sponsored mass murder.

    One government run genocide can easily be thousands of years worth of these others, hundreds of thousands if we exclude suicide and drug crimes. Our own government probably can’t be trusted over that period of time, and has committed crimes probably worth the name ‘genocide’ within the last few centuries.

    Yes, the gov has an army, yes, armed citizens can’t stand up to it… but so what. If the gov needs the army to deal with every small hick town then it’s lost right there.

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    • “2) Thug on thug crime.
      Solutions: End the war on drugs. Maybe ‘stop and frisk’ in some areas.”

      I think this will help but won’t solve the problem completely. A lot of fights can be territorial and over other issues. There is also the matter of collateral damage. Just because someone is in a poor and crime-ridden neighborhood does not mean that they are collateral damage.

      “3) Mass murder by nuts.

      This is so rare it really shouldn’t be driving the discussion, but somehow it is. We don’t have a solution. A ‘background check’ wouldn’t have stopped the last guy (a professional security guard who has passed mental health checks), nor anyone who is willing to plan things for months/years. IMHO it’s worth pointing out that disarming the victims with these ‘gun free’ zones seems counter productive.”

      I think this one depends on perceptions and how we define gun massacres.

      http://www.vox.com/a/mass-shootings-sandy-hook

      According to the article, there have been 1002 mass shootings since Sandy Hook as of June 14, 2016. That seems like an epidemic to me. The article hedges though and states:

      “Are mass shootings increasing? It depends on which definition you use.

      Using one common definition — shootings at a public place in which the shooter murdered four or more people, excluding domestic, gang, and drug violence — they appear to be getting more common, according to an analysis from Harvard School of Public Health researchers.

      But not everyone agrees with this definition. Northeastern University criminologist James Alan Fox, for example, defines mass shootings more widely, as any shooting in which at least four people were murdered. Under those terms, mass shootings don’t appear to be increasing.”

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      • Saul Degraw:
        Matter
        “2) Thug on thug crime.
        Solutions: End the war on drugs. Maybe ‘stop and frisk’ in some areas.”

        I think this will help but won’t solve the problem completely. A lot of fights can be territorial and over other issues. There is also the matter of collateral damage. Just because someone is in a poor and crime-ridden neighborhood does not mean that they are collateral damage.

        Without the war on drugs, street gangs become the gangs of “West Side Story” again, where the gang leader wants to drop and get a real job so he can have a girl.

        Saul Degraw:
        Matter
        “3) Mass murder by nuts.

        I think this one depends on perceptions and how we define gun massacres.

        According to the article, there have been 1002 mass shootings since Sandy Hook as of June 14, 2016. That seems like an epidemic to me. The article hedges though and states:

        You’re mixing your numbers. Your first quote, Vox’s article claims 1002 mass shootings (300 a year or so), but that includes domestic incidents, drug crimes, and even injuries. But the Harvard School of Public Health’s definition results in basically 2 a year. IMHO the moment we mix our various problems we end up with distorted views of what’s going on and why because the drug war’s numbers are so great. I’m good with talking about Orlando and how to reduce it, but Orlando was stunningly rare.

        In Orlando, the shooter passed various background checks, mental health checks, might have planned his crime for years (if the FBI is right about him not being gay), and basically kept reloading until someone else with a gun forced him to retreat (we don’t have a total number of bullets he fired yet, but I expect it’s going to be in the hundreds).

        The only thing I see to work with there is getting rid of these fake “gun free” zones. This was a crowd of young men, some of them are going to be current/former military/law enforcement.

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        • Without the war on drugs, street gangs become the gangs of “West Side Story” again, where the gang leader wants to drop and get a real job so he can have a girl.

          Please become a regular commenter.

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        • Without the war on drugs, street gangs become the gangs of “West Side Story” again, where the gang leader wants to drop and get a real job so he can have a girl.

          That was hyperbole, yes? Great image, though.

          The War on Drugs (note capitalization) seems to generally be dated from 1971 (Nixon’s press conference), and seems to have metastasized into large scale violence (say plus two sigma compared to baseline criminal violence over 1960-1970) in the early 80s. If those date periods were not roughly what you had in mind, please clarify what you did have in mind.

          There is quite a history of rather nasty street gangs at various times pre-1971, though I can’t think of any post-1933, which is apparently about when history began (that’s not a gripe at you, O most honored embodiment of 27% of the mass-energy of the observable universe, but a general gripe).

          (n.b. skipping over the War on Ethanol period here – for one thing, the fact that the War on Ethanol was not internationalized made for different dynamics: of course the 20s and earlier 30s were a relatively low globalization period in the US in general compared to post-1971)

          Please note that I am not disagreeing with your underlying thesis. But isolated subpopulations plus certain urban conditions alone seem to be close to a sufficient cause for street gangs (e.g. MS-13 started out as a more or less defensive gang for the Salvadorans in Pico Union against other pre-existing gangs). But illegal drugs certainly provide superb fuel for street gang growth and metastasis.

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          • scott the mediocre: That was hyperbole, yes?Great image, though.

            Not exactly hyperbole. West Side Story (WSS) is the world of 1957, and the gangs had no way to earn money. They owned a few street blocks but there was no way to monetize that. Fights were for “honor”, but losing a street corner didn’t cost the gang hundreds of thousands of dollars of income per year. Win or lose the fight, in a few years they’re going to age out of the gang.

            The War on Drugs changed all that (and I’m fine with it starting in 1971). Being the top gang member means you’re probably the richest person in the neighborhood. The way to get rich was to own territory, of course fist fights turn into gun fights (and everyone has the money for guns).

            scott the mediocre:
            There is quite a history of rather nasty street gangs at various times pre-1971, though I can’t think of any post-1933, which is apparently about when history began (that’s not a gripe at you,

            I agree, we saw this before with Prohibition.

            scott the mediocre:
            O most honored embodiment of 27% of the mass-energy of the observable universe

            Yep, that’s me. :)

            scott the mediocre:
            …isolated subpopulations plus certain urban conditions alone seem to be close to a sufficient cause for street gangs (e.g. MS-13 started out as a more or less defensive gang for the Salvadorans in Pico Union against other pre-existing gangs).But illegal drugs certainly provide superb fuel for street gang growth and metastasis.

            If Prohibition is our model, and it should be, after making drugs legal the violent, illegal players will try to stay around. They’ll do protection, etc and we’ll be 50+ years getting rid of them.

            However “staying around” doesn’t change that they’ll have to take a massive pay cut, and the level of violence will go way, way down because every street corner won’t be worth killing over. The drug dealer vs. drug dealer wars will stop (and when you have millions or billions of dollars fueling it, “war” is probably the right word).

            Further these are all trends which feed on themselves. Dealers in other countries (or ours) will have far less money to corrupt the legal/political system, so dealing with them will be easier, the richest guy (role model) in the neighborhood won’t be a criminal, etc.

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            • Thanks for the very substantive reply. Also, thanks for your efforts to keep the galaxies gravitationally bound. If it weren’t for you, your evil twin would really be screwing the pooch – expansion is accelerating enough as is.

              In case it was not clear, I largely agree with your point. The present policy set, i.e. predominantly a low level war/counterinsurgency on some elements of the supply chain of certain drugs, could be expected to produce roughly the results it has, although I think the US has managed to outsource the worst effects to Mexico, Colombia, Peru, etc. That’s part of why I find the evolution of MS-13 interesting.

              BTW, have you read any of Mark Kleiman’s (UCLA) drug policy writing? If so, I’m interested in your opinion.

              I was actually thinking of street gangs pre-Prohibition where monetization of turf wasn’t, seemingly, a large aspect, but yet which did not have the aging out effect to straight life you mention; in the US case particularly the gangs in the Five Points and the Bowery, and also gangs like the (Parisian) Apache. But on rethinking, the Apache probably are a poor (though interesting) counterexample since while organized they weren’t particularly territorial AFAIK.

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              • You’re very welcome, and I don’t think I’ve read Mark Kleiman, certainly not his books. And agreed we outsource the worst effects of this mess, drug gangs can rival governments for their resources and power in parts of the world, especially at a city level.

                RE: Pre-Prohibition gangs.
                I’m not sure what undid the Bowery_Boys and their rivals the “Dead Rabbits”. Making the Irish white? The Car? Publically funded and control fire departments?

                My bet is effective rule of law and the creation of a functional legal system. Given this is roughly 1800 to 1850, we’re also talking about a time before the political/legal system got it’s act together. If the political system doesn’t offer protection, you’ll make one that does even if it’s “illegal”.

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        • I am not sure that I follow. Is ending the war on drugs really that attainable as an improvement? We might be seeing some movement on marijuana but only a few people on the left and libertarian fronts are extending this to other drugs. There are still plenty of Americans who firmly believe in the war on some people who use some drugs with the fervor of Chris Christie.

          Same with “stop and frisk.” Plenty of people still believe in it as a crime-fighting policy.

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  9. Dark Matter: Without the war on drugs, street gangs become the gangs of “West Side Story” again, where the gang leader wants to drop and get a real job so he can have a girl.

    Many people off the Internet still want the War on Drugs to continue though. The more aggressive police tactics have a lot of political support even though you wouldn’t know this if you spend a lot of time on certain blogs or reading certain authors. The War on Drugs might be winding down but it is going to be a very slow one.

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    • LeeEsq: Many people off the Internet still want the War on Drugs to continue though. The more aggressive police tactics have a lot of political support even though you wouldn’t know this if you spend a lot of time on certain blogs or reading certain authors. The War on Drugs might be winding down but it is going to be a very slow one.

      Sure, but imho it’s more realistic to think ending the war on drugs would work than it is to expect drug dealers to submit to background checks.

      Discussions about gun control SHOULD be discussions about the war on drugs because that’s the biggest number we can actually do anything about. Yes, the issue is politics, and that normally gets blamed for most lack-of-gun-control, but most gun-control attempts aren’t workable on the face of it (which is a real part of why the NRA is so successful at stopping them).

      Orlando, combined with Sandyhook, showcase pretty well the lack of use of background checks and/or sanity checks. One passed everything, the other would have failed so killing someone and taking her guns was part of the plan.

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  10. Both of yo haven’t really presented any evidence that your position is anything more than precautionary hypothosizing.

    How often do people really get into home defense fire fights with military pattern rifles as opposed to shotguns, handguns, or other hunting rifles?

    How often does overpenetration during a self defense shooting result in a realized hazard to someone (we know it does during criminal action, but I would argue that such shooters have no thought, conscious or otherwise, toward what is beyond their target)?

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  11. “[I]t is necessary to balance “the liberty of the individual” and “the demands of an organized society”

    So if I read that last paragraph correctly Burt, you are choosing the demands of an organized society over the liberty of the individual. This is why I am no longer a believer in the 2nd. It was built as a social construct to protect some basic ideas of individual construct.
    No surprise that social law and precedents continues to over run the individual constructs. I think the ‘shall not be infringed’ was a warning, but in the end it doesn’t matter. Constitutional republics will not hold individual liberties intact. It will take a much stronger type of republic to avoid that particular type of cancer.

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    • I’ve noticed the phrase “social construct” rather a lot in the past two weeks or so. It seems to be a subtle disparagement of whatever it is that’s getting the label attached to it. “Gun Ownership Rights” are a “social construct.” “Public safety” is similarly also a “social construct,” it seems to me. Is this a way of dismissing, or at least deprecating, the concern over a “social construct”? Or is it a way of elevating a “social” construct over an “individual” one?

      The phrase feels today like the term “epistemology” did about two years ago. For about two months back there, I often found myself on the receiving end of accusations that I had not “done my epistemology,” or in the alternative that I hadn’t not done it enough. Therefore, I didn’t really know what anything was and my argument could be set aside.

      The charge of epistemological deficiency seemed to come more frequently, although not exclusively, from right-of-center (“right,” “center,” and “left” being, themselves, social constructs) thinkers. I’m not sure if that label applies to you or appeals to you, , and I don’t make such an accusation in your case.

      But I do see that it’s become something of a fad to throw this phrase around. And I’m not sure what identifying something as a “social construct” is supposed to signify.

      I am sure of one thing, though: we can’t socially deconstruct bullets out of people.

      For the record, I don’t see myself in this essay to be “choosing the demands of an organized society over the liberty of the individual.” As I see it, I am 1) seeking a way to Pareto-optimize the competing values of safety and liberty, 2) insisting that the policy chosen to achieve that end be consistent with the rule of law, 3) pointing out that the fundamental law prohibits some policy choices that might move us closer to Pareto optimization, and 4) further pointing out that amendment of the fundamental law is likely a necessary but not sufficient condition for that Pareto optimization to occur.

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      • Well Burt, I do hope you notice I never used the word epistemology when commenting in your regards, or to anyone that I recall. Before I was using moral alignments a lot, but it didn’t cover some of the other things I wanted to discuss when bringing forth ideas.

        In discussions with left anti-authoritarians I noticed the furniture they base their ideas on are different than mine. They actually prefer to build their furniture on societal constructs. Where I prefered building my furniture on my own constructs. There is actually not much reaching across the aisle there.

        You can Pareto-optimize all ya like, just don’t be surprised when you put it in public policy and start knocking on peoples doors, that there individual constructs have their own optimization system. I mean as far as social furniture is concerned a lot of anger comes from having to live with a 15’x15′ coffee table in the middle of the damn room to start with.

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  12. , et. al.

    Here’s what I got so far:

    Heller establishes that the 2A is an individual right, be it self defense or sporting purposes, etc.. McDonald tells the states that they have to respect it as an individual right as well (if the particular state constitution doesn’t do that already). The 2A establishes a link to firearm ownership being key to militia activity as it was understood to exist at the time.

    So, given that mass shootings have an outsized socio-psychological effect, there is value in trying to curb them; the legislatures and/or courts could take this approach & I think it would pass constitutional muster (I’m not saying we should do this, I’m just saying I doubt the courts would have issue with it – I’m spitballing here folks, feel free to take this apart):

    Manual action rifles (break/bolt/lever/pump/cylinder), because they serve a normative personal defense/sporting purpose, remain largely unregulated (beyond age and criminal history restrictions).

    Semi-auto rifles with fixed[1] magazines can be regulated the same as manual action rifles, as long as the magazine holds 10 rounds[2] or less. Semi-auto rifles with push button detachable magazines can be regulated similarly to full auto weapons as far as the background check goes, but without the production date ban. Additionally, since semi-auto rifles with such detachable magazines would be more strongly linked to militia service, as opposed to personal-defense or hunting, they have to be stored at an armory[3]. They can be signed out for range time, but they are stored at the armory.

    The purpose here, if we are serious about the whole militia relationship, is to allow citizens to own and become familiar with modern military arms without having to be actively in service. Even though the likelihood of the militia being needed is very small, the laws are still on the books, as unused as they are.

    Handguns would follow a similar pattern[4], especially if they could ideally be replaced with effective non-lethal options.

    And in the interest of fairness, I’d extend the same restrictions to all LEOs. Their service weapons stay at the station. Iff they carry an off-duty sidearm, it has to conform to civilian requirements.

    [1] These would be magazines that require either the firearm to be partially disassembled to swap out the magazine, or that would have a retention mechanism that would require effort that goes beyond pushing a button and slamming a new magazine into the well (like a spring clamp, or a thumb screw retention, etc – something that would be challenging to do one handed without looking at things).

    [2] Arbitrary number, but 10 rounds is probably a good value. If we have the data, we could look at how many rounds are discharged during a civilian self-defense shooting and see if an average can be determined. We would not want to to necessarily look at police shootings, since if there is more than one officer shooting, the number of rounds fired tends to increase through a type of sympathetic psychology.

    [3] An Armory would have a minimum security requirement, but need not be a government facility. The local gun store or range could function as one, as could a bank safety deposit vault (I could probably easily store a broken down rifle in one of the medium to large boxes you commonly find in a bank). Honestly, the more the better, as it would not only make it difficult to execute a mass confiscation (word would get out pretty quick), it would also reduce the value in trying to rob one, unless you were looking for a specific item). Buying a restricted rifle would require showing proof of membership with an armory, and allowing for the seller to confirm said membership in some manner. This would act as a barrier to an impulse shooter, which has been shown to serve as a relatively effective deterrent.

    [4] Magazines that are harder to swap, mostly. Quick swap magazines styles would be stored at the armory.

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    • Interesting. I’m of two minds about the militia part of the 2A. It seems like the 2A was all about militias so i don’t think it refers to an individual right. However i have no problem with the individual right to own a gun. Why? Well being an evil liberal type i think we need to A) consider what the 2A means now and militias just aren’t’ relevant in almost any non-apocalyptic situation. B) People should be able to buy and own what they want in general and with some limitations and C) the 2A does infer that people, individually, might sure as heck use guns and part of that falls into the Penumbra of a right. So it may not directly say any individual can own a gun but that is pretty close.

      So toss most of the militia stuff in the bin as far as i’m concerned.

      I think the biggest issue is the love of righteous violence in the US. And fear…lots and lots of fear. That fear is pushed by both sides of the debate so any solution would entail the Pro-gun side spending a few years saying “calm the F down, violence is down, your guns are safe, toting your glock into Chipolte is stupid….chill” And the pro gun control crowd could use some of the same dialogue with ” violence is down, chillax”. Yeah in general violence is high in the US and we would all be better off if people mellowed and that would be where i would start. Not going to happen of course.

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      • Interesting. I’m of two minds about the militia part of the 2A. It seems like the 2A was all about militias so i don’t think it refers to an individual right.

        You’re absolutely right and you won’t find a single person here capable of producing clear evidence that the founding generation intended to elevate a private right to gun ownership to a federal constitutional matter. It’s almost amusing to read some of the commentary above when you think about the founding generation and its fear of centralized power.

        I get it. In order to satisfy those that feared federal tyranny, that same federal government they deeply distrusted was going to guarantee the right to bear arms as a check against itself. Forget the fact that the Constitution is a limited grant of power and all the people of each state had to do to preserve their individual right to bear arms was to not grant that power to the federal government in the first place (which they didn’t).

        The vulgar half-interpretation of the Second Amendment may as well be the right’s version of the General Welfare Clause. Neither position requires any thought and both ignore history. Oh well.

        However i have no problem with the individual right to own a gun.

        Me neither. Heller reached the right conclusion on the wrong constitutional grounds. A gun is personal property and a private matter. If only those that champion privacy rights the most could recognize the possibility here.

        Penumbras…noooooooooooooooooooooooooo!

        I won’t hold my breath.

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        • I took away two things from your response. The part about me being absolutely right ( you’re very perceptive) and i’m glad someone appreciated my tossing out a penumbra.

          But anyway, most arguments about the constitution might as well be religious proof texting of the bible. So much projection and interpretation and assumptions and Ouija board reading of the True Intentions of the Sainted Founding Father’s. Yeah the Big C is important but it doesn’t and can’t instruct us on every single position on every issue we face.

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          • I knew you’d appreciate that :D

            A couple of points to this:

            But anyway, most arguments about the constitution might as well be religious proof texting of the bible. So much projection and interpretation and assumptions and Ouija board reading of the True Intentions of the Sainted Founding Father’s. Yeah the Big C is important but it doesn’t and can’t instruct us on every single position on every issue we face.

            Not to get BSDI here, but, well…BSDI. One side may to elevate the Framers to some god-like status but the other will use the vague language of the text or the fact that the Framers understood common law to justify a reading of the Constitution that gets you to post 1937 Commerce Clause jurisprudence. They’re just as incorrect and I explained why here. Note that the argument for a strict interpretation had nothing to do with elevating the Framers to any status.

            I mention the importance of history in the Heller case because it’s claimed that Scalia held true to the historical record. He didn’t. Stevens did in the dissent.

            Still, the law in question was in my opinion an arbitrary and unconstitutional exercise of the police power. Preventing people from defending themselves in the home in a reasonable fashion serves no valid public purpose whatsoever. I’m glad the law got struck down.

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            • Oh yeah very much BSDI. Every one makes of the Big C what they want and claims they have the correct interpretation. It can be thorny because so interpretations are plausible and some are straight from the cracker factory. But no matter what it says that will only every get us so far in discussion of current policy or positions. We need to figure it out for ourselves instead of thinking every answer is in the Ol C Dawg.

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              • Oscar Gordon:

                So that leaves us with the Fed not have much power to do something, but the states having a relatively free hand?

                I’d say that both the federal and state governments can regulate firearms very broadly and that the federal constitutional remedies are limited at best. Of course, it’s all academic when the rubber hits the road given the way this debate seems to go.

                For the record, I don’t think I’ve thought twice about how many firearms law abiding citizens possess. If you have enough land and want to shoot a fully automatic AK-47 at your pleasure, have at it.

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        • @burt-likko

          Given the result & the language used in the very recent Texas abortion clinic case, did the court strengthen rights protections when it comes to access by the states, or just re-walk old ground?

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  13. DavidTC:
    1) At best, IMHO the anti-gun movement would offer this as a “compromise”, pocket it, and then keep pressing for less and less useful guns. Their actual position is no guns for anyone and this would just be a step along that way.

    …that is not how constitutional rights work.

    You’re correct only as long as it’s 5-4 court. Over turning Heller is pretty clearly part of the plan, the conservative media claims Garland fits that description. Or to put it differently, if you were President, would you appoint Justices who would overturn Heller?

    DavidTC:
    Now that we *are* saying it’s an individual right…well, ‘defense of state’ doesn’t really work as an individual right, so it sorta got left out.

    Interesting read of this.

    DavidTC:
    1) A right own a gun for ‘self defense’ was actually very, very contentious in early America. There were a lot of worries that armed people would start fights and then use the fight as justification for self defense and kill people. Or harass people until those people took a swing at them, and then shoot them. Good thing we’ve totally figured out a way around *that* happening, eh? Right? We actually did figure that, and didn’t just pass laws that would allow people to start fights and then kill the other party?

    It’s been 200+ years. How often has this been a problem?

    DavidTC:
    Moreover, I feel I must point you keep going back to Ferguson, and inventing these hypothetical situations where protesters were breaking into and setting fires to businesses with attached houses.

    …I think you’re thinking of someone else. Ferguson is an example of the gov losing control, it’s not an example where mass murder was needed to defend yourself (although setting on fire dozens of buildings in a tiny community is coming ‘right’ up to that line). On the other hand, my wife’s unarmed home town did have 80% of their population murdered (12k out of 15k) by the Nazis.

    But claiming these examples are ‘hypothetical’ is an effort to have the gov decide how much self defense you’re allowed. You seem willing to allow the personal use of a gun at all, but that seems unusual. In practice I’d expect if we let the gov decide how much self defense you’re allowed, the answer will be ‘not a gun’. It’d be like letting a group of pro-life advocates decide whether you’re ‘allowed’ an abortion.

    While we’re on the subject of how much self defense is allowed, what do you think of ‘gun free zones’?

    DavidTC:
    They, uh, were not.And there were *no* fatalities, and the only injuries appear to be on the police by protesters, or on ‘protesters’ (Or people near them.) by the police. There’s no record of protesters attacking non-police.

    You mean other than the guy who was shot in the head and his corpse set on fire. :)
    https://en.wikipedia.org/wiki/Ferguson_unrest#cite_note-Joshua_burned-131

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    • Dark I must say it’s been good having you around lately. I think David is making some pretty major errors, I don’t know what constitutional law class a lot of these folks are taking, but they probably should spend more time on the issue of individual consent. Individual consent is what constitutions, governments, nation states, laws are built upon. Far too many people are under the notion that social constructs are dominant or in control of individual constructs. They have it backwards.

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      • Joe Sal:
        Dark I must say it’s been good having you around lately.

        Thank you.

        Joe Sal:
        …pretty major errors, I don’t know what constitutional law class a lot of these folks are taking…

        Now there you (and others) have me at a disadvantage. My background is math/logic (thus the name) and not law.

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      • Joe Sal: Individual consent is what constitutions, governments, nation states, laws are built upon. Far too many people are under the notion that social constructs are dominant or in control of individual constructs. They have it backwards.

        The Constitution wasn’t founded on individual consent nor could it be.

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        • Thanks for that catch. I’ll need to add a layer of clarity to fix the above. The correction should read:

          Individual consent is what legitimate constitutions, legitimate governments, legitimate nation states, legitimate laws are built upon.

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    • It’s been 200+ years. How often has this been a problem?

      Erm, Trayvon Martin, for example? Even in the most *kind* interpretation of what happened, it involved an armed man following a person around until that person, unsure what was going on and why someone was following them, attacked them.

      There’s actually a whole bunch of discussion of *exactly this sort of thing* that the founding fathers had about self defense laws, and it’s why some of them, and some states, didn’t include self defense as any sort of ‘right’…because it was entirely possible to place yourself in a way where you were justified in using force against another person. All you have to do is harass a person until they took a swing at you.

      The duty to retreat is *supposed* to help deal with that. It’s not perfect, but it helps. But then we have states deciding to not require that, either in law, or having it in law but not requiring it in practice.

      If you’re asking how it mattered 200+ years ago…a duel is *literally structured* to give the winner a claim of ‘self defense’. That is the *entire point*. You turn around, you see the guy is about to kill you, you can legally shoot him.

      In some places that was outlawed, in some places not, but eventually, the courts decided to change the interpretation of ‘self defense’ to no longer include ‘situations where two people have agreed to kill each other’ regardless of the law.

      …I think you’re thinking of someone else. Ferguson is an example of the gov losing control, it’s not an example where mass murder was needed to defend yourself

      It’s not an example of where *any* murder was needed to defend yourself, so, as I pointed out, I have no idea why you keep using that as an example.

      On the other hand, my wife’s unarmed home town did have 80% of their population murdered (12k out of 15k) by the Nazis.

      First, I feel I should point out that the Nazis doing something is the literal *opposite* of the government losing control.

      Second, I feel I should point out that ‘Defending yourself from the government’ is something I literally am refusing to accept as any sort of argument. It’s gun-lobby gibberish. Here is the sole statement I will make: The Nazis have bombs, and if that city had offered resistance in the form of gunfire, they would have bombed the city flat. Q.E.D., debate is finished on that topic of discussion.

      But claiming these examples are ‘hypothetical’ is an effort to have the gov decide how much self defense you’re allowed.

      The government *does*, literally, decide how much self defense you are allowed. I mean, that is literally how all existing laws about self-defense work. You can only escalate to lethal force if you fear for your life, for the most obvious example.

      You seem willing to allow the personal use of a gun at all, but that seems unusual.

      I do not think you know what the world ‘unusual’ means, but if you’re trying to make the argument that the majority of Americans think people shouldn’t be able to defend themselves with guns, you are a) wrong, and b) making *exactly the opposite* argument you want to be making a democracy.

      In practice I’d expect if we let the gov decide how much self defense you’re allowed, the answer will be ‘not a gun’.

      Why the hell do you think that?

      Every single state in the US has laws allowing self defense. And you realize that the current interpretation of the 2nd, which stated a constitutional right to self defense, happened in *2008*, right? Before that, there’s absolutely no constitutional obligation to have laws allowing self defense. (Technically, there wasn’t after that, either. Just because it works as a constitutional defense in court doesn’t require *laws* allowing it.)

      You keep saying really weird things that are extremely hard to follow. Making weird assumptions about what the American people want, or the governments want, or how laws actually work.

      And, look…I don’t like to accuse people of basically repeating propaganda, but that’s really what you keep doing. Just weirdly slipping into wrong understanding of things….understandings that are basically things the gun-lobby has completely made up and aren’t actually how anything is.

      Note I’m not saying that because you’re pro-gun, I’m saying that because your framework of how things actually are is just…weird.

      You mean other than the guy who was shot in the head and his corpse set on fire.

      There is no evidence whatsoever that had anything to do with the unrest at all. (Despite crazy and easily disprovable conspiracy theories claiming he had testified as a witness.) In fact, while it doesn’t prove anything, ‘shot and burned and then put in a car’ is a pretty weird way for rioters to kill people, which is more like ‘shot or beaten to death and then left in the street’.

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      • Jesus people!

        Start bringing out stats & cites or let it go already. I have seen more rhetoricals, hypotheticals, and outright BS in this conversation, how about someone starts providing actual, authoritative evidence, or I’m gonna label you both Kim2 & Kim3.

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        • Oscar Gordon:
          Jesus people!

          Start bringing out stats & cites or let it go already.I have seen more rhetoricals, hypotheticals, and outright BS in this conversation, how about someone starts providing actual, authoritative evidence, or I’m gonna label you both Kim2 & Kim3.

          You’re going to find someone produce historical evidence for the individual rights view of the 2A before that happens, especially from that side.

          Love the Kim2 comment. LOL

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          • -Lt. Frederick MacKenzie of the Royal Walsh Fusiliers:
            “These fellows were generally good marksmen, and many of them used long arms made for Duck-shooting.”

            -Sure, no historical evidence ‘militia’ (as used in the 2A text) were exercising ‘individual rights’ purposed guns during the time the Virginia DOR or 2A was created.

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        • …I have absolutely no idea what you think is *uncited* in my post.

          Let’s go from the top…don’t think I need to explain anything about Trayvon Martin, so, starting with: self-defense was somewhat debatable purpose for a right to bear arms during the founding of this county.

          Here’s, perhaps, a useful cite:
          http://www.americanbar.org/publications/insights_on_law_andsociety/14/fall-2013/natural-rights–common-law–and-the-english-right-of-self-defens.html

          There is a reason that *some* state constitutions have the right to bear arms ‘for the defense of themselves and the state’, while others have ‘defense of the state’ as the sole reason. (Also note that while that cite doesn’t mention it, as time went on, state constitutions shifted from the purpose of the right to bear arms from ‘always having common defense and sometimes having self defense’ to ‘always having self defense and sometimes having common defense’.)

          However, I can’t seem to find what I was *reading* when I posted that, which was a state-constitution level argument about whether or not the state should include ‘defense of self’ *in* their bill of rights, on the grounds that it might be interpreted as barring the state from restricting *any* action that might be defined as ‘defense of self’. I.e., the state could not mandate a duty to retreat, which is something that keeps showing up in the laws all the way back to English common law. I was thinking it was Virginia, but now I can’t find it. Sorry.

          As for dueling being an intent to use self-defense laws….self defense was traditionally *how* the winner in a duel defended himself in court…although that was such a winning argument that winning duelists, in practice, were not charged with anything. I don’t have any cite that says this is on purpose, in fact, I’ve never seen any thing making that argument, probably because it’s a bit obvious…it would be a mighty strange coincidence that people merely *randomly* did things that got *coincidentally* codified into traditions that made their otherwise illegal killings into self defense!

          And it still is! Killing someone during a duel, *even to this day*, could be classified as self defense under the law in some places, although it might fail under the ‘getting the other person to attack you first so you can kill them’ test that self defense generally has now. (Maybe not. Depends on how ‘getting them to attack you first’ is defined in practice.)

          But that’s not how we outlawed dueling. We outlawed dueling by making agreeing to and participating in a duel *itself* be a felony…so killing someone during a duel is, oops, felony murder. (And that lets us arrest participants even if no one is injured. And arrest the ‘seconds’. And even arrest people *before* a duel if we find out about it.)

          What’s next…People weren’t killed during the Ferguson unrest (Except that, yes, a body was discovered during that time that seems completely unrelated and would be for the ‘unrest’ to cause a death.) so killing people wasn’t need for self-defense because no self-defense was needed. I don’t have a way to cite a lack of dead people.

          The Nazi stuff is kinda obvious, don’t think I need to cite Nazis having city-leveling bombs…

          The government does decide how much self defense you are allowed. Not sure if you want a cite, but here’s Georgia’s:

          ‘A person is justified in threatening or using force against another person when, and to the extent that, he/she reasonably believes that such threat or force is necessary to defend himselfYherself or a third person against the other’s imminent use of unlawful force. A person is justified in using force that is intended or likely to cause death or great bodily harm only if that person reasonably believes that such force is necessary to prevent death or great bodily injury to himself/herself or a third person or to prevent the commission of a forcible felony.’

          So not really sure what you’re looking for there.

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      • DavidTC:
        All you have to do is harass a person until they took a swing at you.

        When it comes to gov policy, especially for things like self defense, there are no perfect, cost free, solutions. Which brings us back to my question, “how often is this a problem”? Other than Martin (who got shot for more than taking a swing), I can’t think of any. I.e. if we’re interested in reducing deaths, my expectation is this was an extreme exception and really shouldn’t be driving police, much less used as an excuse to reduce constitutional rights.

        DavidTC:
        On the other hand, my wife’s unarmed home town did have 80% of their population murdered (12k out of 15k) by the Nazis.
        First, I feel I should point out that the Nazis doing something is the literal *opposite* of the government losing control.

        The gov has the responsibility to protect you, that’s why we have police. They can fail in that deliberately (Tyranny) or from a loss of control (incompetence, failed state).

        DavidTC:
        Second, I feel I should point out that ‘Defending yourself from the government’ is something I literally am refusing to accept as any sort of argument. It’s gun-lobby gibberish.

        It’s math. 12k a year gun homicides (which includes the drug war). So the holocaust balances roughly 1000 years of gun related homicides, and there’s no history of any gov remaining stable and good on that time frame. Take the drug war off the table and we’re looking at tens of thousands of years of balance, and even that is an understatement because we’re assuming gun control could prevent most all those homicides.

        If we exclude the Nazis as extreme outliers which won’t happen again, then we have the Japanese whose body count may have been higher. If we exclude both of them we have dozens of other examples, leading to a back-of-the-envelope worldwide chance of roughly 2% per decade of something of this scale. This excludes failed states, wars, and Communism’s charming habit of making mistakes which starve or otherwise kill millions of their citizens.

        If we only want to look at the US, then we have the KKK (which was often run out of the local sheriff’s office) and our treatment of the Indians as examples of government abuse.

        The really concerning thing when we look worldwide is many/most are only obvious with hindsight. No one in 1920’s Germany would have predicted 1940. The implication is we can go from normalcy to nightmare in just a decade or two.

        DavidTC:
        Here is the sole statement I will make: The Nazis have bombs, and if that city had offered resistance in the form of gunfire, they would have bombed the city flat.

        You say that like it’s a bad thing. Being “bombed flat” is FAR better than being sent to a death camp, lots of places were bombed flat.

        Unless what you really meant was the full weight of the Nazi army would have been brought to bear… but the full weight of the army simply can’t be put on every hick town.

        DavidTC:
        You seem willing to allow the personal use of a gun at all, but that seems unusual.
        I do not think you know what the world ‘unusual’ means…

        My bad, I spliced together two sentences and got one which was less than clear. You seem to believe that the 2ndAM doesn’t give a personal right to a gun, but you also seem willing to live with Heller and see utility for people to have firearms for personal defense. I.e. although you hit the radar as a Gun Control Advocate you also seem sensible, rational, and not an extremist. Problem is as far as I can tell this is unusual for GCA.

        DavidTC:
        …but if you’re trying to make the argument that the majority of Americans think people shouldn’t be able to defend themselves with guns, you are a) wrong, and b) making *exactly the opposite* argument you want to be making a democracy.

        We just had 50 people die in a ‘gun free zone’, how many were able to ‘defend themselves with guns’? And is the political response that we need more rights for Americans, or fewer?

        DavidTC:
        In practice I’d expect if we let the gov decide how much self defense you’re allowed, the answer will be ‘not a gun’.
        Why the hell do you think that?

        Chicago gun laws. DC gun laws. The various ‘gun free’ shooting zones which end up in the news occasionally. Taylor Woolrich’s experience http://www.inquisitr.com/1394954/gun-control-rule-at-dartmouth-college-denies-taylor-woolrich-protection-from-stalker-with-rape-kit/

        DavidTC:
        Every single state in the US has laws allowing self defense. And you realize that the current interpretation of the 2nd, which stated a constitutional right to self defense, happened in *2008*, right? Before that, there’s absolutely no constitutional obligation to have laws allowing self defense. (Technically, there wasn’t after that, either. Just because it works as a constitutional defense in court doesn’t require *laws* allowing it.)

        This would give me a lot more confidence if the Supremes had voted 9-0 rather than ‘all liberals adamantly opposed’ 5-4. If the Court had been 4-5 (one more liberal), would DC have been able to ban handguns outright and require any firearm kept in the home be kept “unloaded, disassembled, or bound by a trigger lock or similar device…this was deemed to be a prohibition on the use of firearms for self-defense in the home.” https://en.wikipedia.org/wiki/Firearms_Control_Regulations_Act_of_1975

        I look at 4 Supreme Court Justices being just fine with DC’s laws (or presumably ones going further) and I question what ‘self defense’ will mean after we get more Supremes that think like them. I also look at all the dead in Orlando and question what their ‘right’ to self defense meant in practice.

        DavidTC:
        You keep saying really weird things that are extremely hard to follow.

        I’m an Engineer, I get that a lot.

        DavidTC:
        You mean other than the guy who was shot in the head and his corpse set on fire.
        There is no evidence whatsoever that had anything to do with the unrest at all.

        They had 20 murders in the last 12 years. If it’s not connected it’s one heck of a coincidence. http://www.city-data.com/crime/crime-Ferguson-Missouri.html

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        • It’s math. 12k a year gun homicides (which includes the drug war). So the holocaust balances roughly 1000 years of gun related homicides, and there’s no history of any gov remaining stable and good on that time frame. Take the drug war off the table and we’re looking at tens of thousands of years of balance, and even that is an understatement because we’re assuming gun control could prevent most all those homicides.

          I have no idea what sort of math this is supposed to be. The holocaust would not have magically been stopped with victims owning guns.

          Let me quote Alan E. Steinweis, history professor:
          ‘The Jews of Germany constituted less than 1 percent of the country’s population. It is preposterous to argue that the possession of firearms would have enabled them to mount resistance against a systematic program of persecution implemented by a modern bureaucracy, enforced by a well-armed police state, and either supported or tolerated by the majority of the German population. Mr. Carson’s suggestion that ordinary Germans, had they had guns, would have risked their lives in armed resistance against the regime simply does not comport with the regrettable historical reality of a regime that was quite popular at home. Inside Germany, only the army possessed the physical force necessary for defying or overthrowing the Nazis, but the generals had thrown in their lot with Hitler early on.’

          Or let me point out, in actual history, Jews *did* have guns after they realized what was going on:
          https://en.wikipedia.org/wiki/Ghetto_uprising

          They…did not actually help. In fact, there’s almost no examples of anything that could even vaguely be a ‘victory’ there…in a few, limited circumstances a few of them escaped.

          If we exclude the Nazis as extreme outliers which won’t happen again, then we have the Japanese whose body count may have been higher.

          Erm, the Japanese body count is mostly Chinese. And you seem to know a lot more about Chinese gun control pre-WWII than the internet, which doesn’t know anything at all. I would suspect that, regardless of any laws, the normal Chinese peasant in WWII had no *money* to buy a gun.

          If we exclude both of them we have dozens of other examples, leading to a back-of-the-envelope worldwide chance of roughly 2% per decade of something of this scale. This excludes failed states, wars, and Communism’s charming habit of making mistakes which starve or otherwise kill millions of their citizens.

          Yes, because guns are extremely useful in fighting against economic policies that create starvation. All those people in the USSR without food should have started shooting local government officials, that would have solved the problems of a direct economy not knowing how to distribute food.

          And it’s not like people with guns fighting against government tyranny got them *into* that problem in the first place. It’s not like Russia had some sort of people’s rebellion that implemented that government to start with…oh, wait, nevermind.

          If we only want to look at the US, then we have the KKK (which was often run out of the local sheriff’s office) and our treatment of the Indians as examples of government abuse.

          It’s always amazing when people want to cite the KKK as some sort of argument *against* gun control and how people can stand up for their rights against government oppression.

          The KKK is what you *get* when an armed population decides to ‘stand up for their rights against government oppression’. That was, literally, their entire point of existing. The fact they were able to subvert local governments doesn’t somehow make them a government tool, it makes the government a tool of *them*.

          Here is the problem with the complete nonsensical direction this argument is:

          The government is not some magical separate entity doing things the people do not want. The people *wanted* Hitler. The people *wanted* the Holocaust. The people *wanted* the KKK. The people *wanted* the government to get rid of Indians.

          Tyrants do not come to power because the people are unable to stop them. Tyrants come to power because *the people want them to have power* and are willing throw away the rule of law for that.

          You have, as a basic underpinning of how you think, seem to think that the governments might be doing something that the people oppose, and the people should be able to fight back. This seems to inform everything you think on this topic.

          But the problem is, and actual history bears this out, there is almost never a conflict between the two, and, whenever there is, the *people* are almost always wrong-ish morons and it’s the *government* that is behaving rationally! It’s why we build things like the Senate and the courts, to isolate the government from the (to be frank) often insane leaps and flops of the population into dumbness.

          But, sometimes the people win, and you get…dictatorships.

          That is the *general* history of the world. Governments, be they bad or good, tend to want *stability*, and that includes ‘not suddenly doing a bunch of things to piss off their population’. It’s their *population* that suddenly wants crazy things, and the government usually resists. Sometimes that population manages to vote in crazy people, sometimes that fails and the population revolts, instead, and the crazy peo