pageok
pageok
pageok
Brady Bill Anniversary:

On this day in 1993, President Clinton signed the "Brady Bill." The bill did not accomplish its original objective, as introduced in previous Congresses, of restricting private, non-commercial sales of handguns. Nor was the enacted bill structured, as previous versions had been, so that a police chief could indefinitely delay a handgun purchase.

Much of the support for the "Brady Bill" came from the claim--which was demonstrably false--that the bill would have prevented John Hinckley from buying the guns he used to shoot President Reagan and Press Secretary Jim Brady.

At the signing ceremony, President Clinton emotionally told the story of a friend of his who was an Arkansas gun dealer. The gun dealer sold a firearm to an escaped mental patient, who then murdered six people.

"My friend is not over it to this day," said the President, as the crowd applauded. "Don't tell me this bill will not make a difference. That is not true. That is not true."

"Not true" turned out to be a pretty good summation of the President's story, which he had throughout the 1992 campaign.

The Arkansas Democrat-Gazette (Little Rock) tried to track down the origin of the tale. Back in 1984, an Arkansas man named Wayne Lee Crossley used a .45 pistol and a shotgun to murder four people in a bar. Contrary to the Clinton story, Crossley did not buy the guns himself; he convinced a woman friend to buy the guns for him. The Brady Bill did nothing to prevent people with clean records from buying guns for anyone they want.

When the media started asking for substantiation of Clinton's story the White House stonewalled. But before the no-answers rule was put in force, one White House staffer admitted that the man might just have been treated at a mental institution, rather than having "escaped from a mental hospital." Simply having undergone mental therapy does not legally disqualify a person from owning a gun, under federal law.

While the President spoke movingly about how his "friend is not over it to this day," the dealer/"friend" who sold the guns died several years before Clinton spoke. (Timothy Clifford, "Clinton's Gun Story is a Murder Mystery," (New York) Daily News, Dec. 3, 1993.)

The Brady Bill imposed a five-government-working-day waiting period, during which local law enforcement could check the background of a handgun buyer. In 1998, the waiting period sunset, and was replaced by the National Instant Check System for all retail firearms sales. In 2004, Congress corrected a NICS administrative abuse which had been invented by the Clinton Administration. The "Tiahart Amendment" outlawed the Clinton practice (which had been administratively ended by the Bush administration) of using NICS to compile a national registration database of gun owners.

After the Brady waiting period was passsed in 1993 (and set for expiration in 1998), gun prohibition lobbyists in 1994 successfully pushed for a federal ban on so-caled "assault weapons" (which expired in 2004).

Almost immediately after passage of the "assault weapon" ban, Handgun Control, Inc. (which later renamed itself "the Brady Campaign"), announced "Brady II." Brady II would make permanent the handgun purchase waiting period which was set to expire in 1998, and would limits handgun purchases to one per month. The bill would also require all states to set up handgun licensing systems, with possession of a handgun permitted only to persons who pass federally-mandated safety training. All handgun transfers would be registered with the government.

Brady II would require every owner of a "large" ammunition clip to be licensed the same way that the federal government licenses machine gun owners. Simply to retain the magazines currently owned, a person would have to be fingerprinted, and pay heavy federal taxes. Brady II would also lower the ten-round limit to six rounds. As a result, the owner of a Colt .45 pistol and the standard seven-round magazine for the gun would need to go through the federal machinegun licensing system.

Under Brady II, anyone who owned at least twenty guns or 1,000 rounds of ammunition would be required to obtain a federal "arsenal" license. Licensees would be subjected to three unannounced police inspections per year. Persons who were required to have a license but did not obtain one would of course be subject to whatever enforcement action the Bureau of Alcohol, Tobacco and Firearms deemed appropriate.

For purposes of defining an "arsenal," firearms, firearms parts, and ammunition clips would all count as a "firearm." In other words, if a person owned three rifles, three handguns, two ammunition clips for each gun, and set of disassembled spare parts for the rifles and the handguns, he would have an "arsenal" consisting of at least 20 "guns." A thousand rounds of ammunition also count as a so-called "arsenal." So the hundreds of thousands of target shooters who pick up a pair of bricks of rimfire ammunition for $15 every few months would also become the owners of "arsenals."

Today, the Brady Bill is only a memory, and Brady II is so unfeasible as national legislation that it has not been re-introduced. Various components of Brady II, however, are still being pursued at the state and local level, sometimes successfully.

Wince and Nod (mail) (www):
I'm is favor of reasonable gun laws and regulations. So when are we going to repeal the large number of unreasonable ones, like the prohibition of concealed carry in Kansas?

Yours,
Wince
11.30.2005 1:23pm
therut (mail):
So an arsenal is 20 firearms. Who knew. I see the MSM using the word Arsenal when it is 3 firearms. 1984 comes to mind. Good grief I am sorry but I can never forgive Clinton for his good lying. He is a disgrace to my home state. Kerry would be worse. I think clinto really does not give a dang about firearms it was all political but Kerry is a true believer.
11.30.2005 1:24pm
Jack S. (mail) (www):
I'm curious when we'll actually see some objective arguments from either side of the table.

Kopel cites 2 articles, both written by himself. While self-citation works for the judicial system, there is no objective value to your own writings.

Second, the first article cited also is devoid of any sources. It's merely a series of self-serving conclusions with no objective data to back it up. Example :

In fact, she's been a gun control worker most of her adult life, starting in 1973. This difference is important. If Handgun Control used the earlier date, it would decrease Mrs. Brady's credibility.


Why would this decrease credibility? Maybe she became a little more enraged when her husband took one in the head, but because she may have advocated gun control since 1973 (Can we have proof here?) seems like no reason to discredit her. The conclusion seems to lack support. And isn't this the very sort of technique that the NRA likes to use too? tell only part of the story.

Finally, while I find absurd equating 20 guns with 1000 rounds of ammunition as well, I see no direct quote from Brady II stating as such. That said, I didn't search the internet for the text since isn't that what blogs are for? Make an assertion, with a link to the source that we're asserting?
11.30.2005 1:36pm
Gordon (mail):
While I haven't reviewed the legislative history, I would be quite surprised if the original Brady Bill was made ineffective because it had to be watered down to pass Congress. Then the same people who were happy to see it watered down tell us it is ineffective at its stated purposes.

Everything listed in Brady II seems to me to be eminently reasonable. I would classify less than 20 guns as an "arsenal," but once again you have to set the limit somewhere. It is the equivalent of comparing an owner of a passenger car with the owner of a large freight truck. The freight truck owner must undergo additional inspections and regulations. So too should the owner of an "arsenal."

Also I commend the Clinton administration for acting creatively to create the needed national database of gun owners. Too bad the current administration and Congress won't allow this sensible measure to continue.

What I don't agree with is the concept, followed in other countries, that all this registration will lead to eventual confiscation. That's why we need to have an "historic compromise." The Constitution should be definitively intepreted to protect the right to bear arms and thus bar confiscation. And, as with the use of automobiles and trucks, government should be able to regulate the ownership and use of guns.
11.30.2005 1:41pm
DJB:
Great summary. It made me hate gun control nuts all over again. :)
11.30.2005 2:06pm
Robert Schwartz (mail):
Did Clinton use a story that was less than completly true? I am shattered. That is so unlike him.
11.30.2005 2:09pm
MSG:
DJB said: "Great summary. It made me hate gun control nuts all over again."

Funny, this post had quite the opposite effect on me. It made me realize, once again, how badly our gun regulations have been trashed in the last several years. I don't "hate" gun nuts or opponents of gun control, but I'm certainly frustrated and depressed when confronted with the lengths they will go to to prevent any reasonable debate or effort on gun regulation.
11.30.2005 3:27pm
Dilan Esper (mail) (www):
With respect to the Tiahart Amendment, I believe what the Clinton Administration was doing was holding gun purchase records (not forever, but for several months) just as the government collects all sorts of other records. The truth is, while Kopel apparently thinks gun registration would be the worst thing in the world, to many people, it seems rather ridiculous that while the government can engage in large-scale data mining of bank, internet, telephone, tax, and other records, not only to catch terrorists but also to catch drug dealers and deadbeat dads, it's absolutely verboten to keep a gun purchase record for more than 24 hours. Might it be useful to be able to figure out if a suspected terrorist has purchased any firearms?

I am not saying I am fully on the side of government data miners. Indeed, I'd be inclined to support limitations on the practice to protect civil liberties. What I don't see the point of is a limitation that applies to gun purchases (which actually may bear a stronger nexus to terrorist activity than library borrowings, bank transactions, internet usage, and other such activities) being the one piece of data that the government may not mine.
11.30.2005 3:46pm
Thorley Winston (mail) (www):
Re: Gun Registration

Let me bottom line it for those who think this is a "reasonable" restriction.

The history and the rhetoric of the gun control movement has shown pretty conclusively to the RTKBA movement that mandatory registration -- no matter what promises, assurances, or guarantees to the contrary are offered now - is simply a tool to be used in the future for gun confiscation. Period.
11.30.2005 4:00pm
Passing By:
I thought this blog didn't permit ad hominem attacks. Or is an exception made for public figures?
11.30.2005 4:01pm
RKV (mail):
Gordon and MSG - What part of the 2nd Amendment has been repealed which allows for government regulation of the possession and transportation of arms of any type? Sorry, but no "historic compromise" is possible. Period. The gun owners would be doing all the compromising, and therefore have no incentive to bargain away their rights.
11.30.2005 4:10pm
Thorley Winston (mail) (www):
Gordon and MSG - What part of the 2nd Amendment has been repealed which allows for government regulation of the possession and transportation of arms of any type? Sorry, but no "historic compromise" is possible. Period. The gun owners would be doing all the compromising, and therefore have no incentive to bargain away their rights.


Setting aside the Second Amendment, why would you trust someone who thinks that the commerce clause grants the federal government this sort of de facto police power in the first place?

But you're right, this "compromise" is no compromise. It's simply a further erosion of existing rights with the "promise" that they won't erode them further in the future (or just not as much).
11.30.2005 4:17pm
RKV (mail):
Dilan Esper - The plain wording of the Constitution itself is enough to justify Kopel's concerns regarding the many clearly unconstitutional gun laws now on the books. If we can't keep our enumerated rights, how the devil are going to keep our unenumerated ones, with or without data mining?
11.30.2005 4:34pm
Brett Bellmore (mail):
IIRC, the Brady bill mk one was sold on the premise that, "this is all we want, honest!", and the ink wasn't dry on it before the already formulated Brady bill mk two surfaced.

I tend to presume people to be honest, and to have benign motives. But it's a rebutable presumtion, and in the case of the gun control movement, it HAS been rebutted, by their own actions, many times. One must be quite ignorant of the history of this movement to ever trust anyone advocating gun control.
11.30.2005 4:52pm
Thorley Winston (mail) (www):
IIRC, the Brady bill mk one was sold on the premise that, "this is all we want, honest!", and the ink wasn't dry on it before the already formulated Brady bill mk two surfaced.


*Sniff* anyone else smelling boiled frog?
11.30.2005 4:55pm
RKV (mail):
Mr. Winston - "Grenouille bouillie" is quite apropos in this instance. We have seen through their rhetoric to the gun grabbers long term plan. Fortunately the tide is turning. I note the sunset of the so-called "Assault Weapon Ban" (aka "the unconstitutional ban on military looking semi-automatic firearms") with pleasure. Also the increase in the number of states with "shall issue" concealed carrry laws over the last 10 years is significant.
11.30.2005 5:04pm
DJB:
I'm certainly frustrated and depressed when confronted with the lengths they will go to to prevent any reasonable debate or effort on gun regulation

You want to strip us of our rights. Why should we be "reasonable" about that? Gun control curtails rights and gives us nothing in return -- not reduced crime, not saved lives, nothing.

The past century has just been one case after another of "oh, be reasonable, just give up a few more gun-related rights and then we'll be happy". Enough, already. It has been clear for decades that the gun control "debate" will never end until guns are entirely banned and the second amendment entirely ignored. Why be reasonable in the face of that? You can't reason with a person whose goal is to strip you of your rights. You can only tell him "no".
11.30.2005 5:29pm
Matt22191 (mail):
Jack S.,

"isn't that what blogs are for? Make an assertion, with a link to the source that we're asserting?"

Do you have a link for that (implicit) assertion? ;-)

(a) OFFENSE- Section 922 of title 18, United States Code, as amended by section 203(a), is amended by adding at the end the following new subsection:

"It shall be unlawful for a person to possess more than 20 firearms or more than 1,000 rounds of ammunition unless the person-- (1) is a licensed importer, licensed manufacturer, or licensed dealer; or (2) has been issued an arsenal license pursuant to section 923(m)."


Gun Violence Prevention Act of 1994, S. 1882, 103rd Cong., s. 204(a) (1994). (You can find it here; I don't know to link directly to the bill.)

Section 921(a)(3)(B) of title 18, United States Code, is amended by striking `or receiver' and inserting `, receiver, barrel, stock, ammunition magazine, or any part of the action'. Id., s 312.

Section 921(a)(3) of title 18, United States Code, the definition of a "firearm" that applies to all of chapter 44 (which includes sections 922 and 923, where the "arsenal" provisions would have been added) reads:

(3) The term "firearm" means
(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;
(B) the frame or receiver of any such weapon;
(C) any firearm muffler or firearm silencer; or
(D) any destructive device. Such term does not include an antique firearm.


(Link.)
11.30.2005 6:49pm
Matt22191 (mail):
Er, "don't know how to link ..."
11.30.2005 6:50pm
Matt22191 (mail):
Gordon,

"It is the equivalent of comparing an owner of a passenger car with the owner of a large freight truck. The freight truck owner must undergo additional inspections and regulations."

It's more closely analogous to treating a guy who owns three motorcycles, one car, a small block 350, a smattering of spare parts and a couple of gas cans the same way we'd treat the owner of a large commercial truck. He can only drive/ride one vehicle at a time, so there's no special reason to suppose that by owning additional vehicles -- let alone parts -- he endangers the public more than if he owned only one. (Who's likely to be more dangerous to the public: The sixty-five year old retiree who owns a large collection of classic cars that he shows and occasionally drives on the weekend, or the seventeen year-old boy who owns one brand-new, 350 horsepower muscle car?) Other than discouraging him and others from owning "too many" cars, motorcycles, parts and accessories, what purpose would it serve to make him get a commercial driver's license, and to treat all his vehicles like commercial rigs?

If you're looking for firearm analogies to commercial trucks, the best ones would be machine guns, destructive devices, short-barreled rifles and shotguns, and "AOWs." In theory, at least, those devices are especially dangerous to the public -- which is why they're very closely regulated under the National Firearms Act, just as commercial trucks are more closely regulated than personal vehicles.

On your second point, exactly what did the Clinton administration achieve by retaining NICS records? I think I'm aware of most of the major arguments for gun registration, although I don't find them persuasive. But the Clinton administration wasn't building a gun registry; it was building a database of people who had been subjects of NICS background checks. They're very different things. As I understand it, the information submitted to NICS does not include any details about the firearm being transferred; it merely indicates handgun or long gun. And NICS checks only apply to firearm transfers by federal firearm dealers (FFLs), while private transfers with no FFL involvement are lawful in the vast majority of the United States. So the old NICS records couldn't have told a user: the identities of all (or even close to all) lawful gun purchasers in a given period; that a specific person did not lawfully purchase a gun (except in a few jurisdictions); who bought a specific gun; what gun(s) a particular person bought (beyond numbers of long guns and handguns, and then only if purchased from an FFL); or whether he still had any of those guns. I'm still rather mystified about what the retention was supposed to accomplish, other than agitating gun owners and creating a list of names of people that a certain segment of society mistrusts and dislikes. Maybe that's the only answer.

Dilan,

Sure, old NICS records might let us determine whether a suspected terrorist purchased a firearm from an FFL, under his own name, six months ago. But please explain how that information would be used. Is it so officers can know that they need to be "more careful" when they arrest the suspected terrorist? Since the absence of a NICS record can't rule out the presence of guns, and terrorists are apt to have things much worse than guns, I'd hope officers would always be as careful as possible when arresting suspected terrorists, regardless of what the NICS records said. Or is it that owning a gun is supposed to be evidence that one is a would-be terrorist?
11.30.2005 6:55pm
Joe Huffman (mail) (www):
I just have one question for people advocating restrictions on personal self defense tools. I've been asking it for years and not one person has given me an answer. "Reasonable" gun control? That's putting your bullets on the target so the holes are only touching instead of completely overlapping.
12.1.2005 12:04am
K.Parker (mail):
Gordon,

So 'creatively' is now a synonym of 'illegally'? Very clever.
12.1.2005 12:04am
corngrower:
OK, everyone. It is called the Bill of Rights. But, read it. It is restrictions on the federal govt. The 2 cnd restricts, bans, forbids, the govt from taking arms from you and me. The bill of rights defines our rights by banning the govt from taking action to usurp the enumerated powers of the people.

I got a compromise for you. Register each and every abortion. I'll register my gun. course, I got the constitution and you got....What?
12.1.2005 9:04am
corngrower:
BYW Clinton made up a story???? Say it aint so!! Like when he talked of church burnings when he was a lad in Arkansas? Cept a church was NEVER torched in Arkansas? Or the story about being a Rhodes Scholor and flying into an airport in NYC and walking into Harlem? Cept the airport he mentioned has NEVER landed an international flight? The geatest President we ever had fabricated the truth? Gotta show me the proof.
12.1.2005 9:11am
countertop (mail):
Got to disagree Joe. Your description of "Reasonable Gun Control" is clearly clouded by your delusions of what is and is not acceptable in a civilized society.

Rather, I would say reasonable gun control is putting your bullets on a target so that they are all overlapping rather than all going through a single hole. For the holes to be "only touching" suggests much more training and practice is required.
12.1.2005 10:02am
Tim:
The reason I get frustrated with this debate (by people on both the right and the left), is that the extreme positions are so ridiculous. Surely everybody on this thread would agreed that gun confiscation, no matter how much some people might want it, would be unconstitutional. On the other hand, hopefully everybody can agree that guns should not be completely unregulated. It is just common sense that very dangerous weapons should be regulated, right?

So rather than screaming "you're going to take my guns" or "guns are evil, let's get rid of them all", why can't there be a reasonable debate in this country about what degree of restrictions and regulations are appropriate?
12.1.2005 10:17am
Andy Freeman (mail):
> why can't there be a reasonable debate in this country about what degree of restrictions and regulations are appropriate?

The gun control movement often says "let's try this, and if it doesn't work, we can repeal it" as part of their campaign for the flavor of the month.

Feel free to cite any example of the gun control movement supporting the repeal of a gun control measure that did not reduce crime.

Heck, cite any of the so-called "moderates" doing so.

Yes, there are examples of gun control measures pushed by gun folk.

If you honestly want to try different kinds of gun control, you must be willing to undo things that didn't work.
12.1.2005 10:35am
Andy Freeman (mail):
> Also I commend the Clinton administration for acting creatively to create the needed national database of gun owners.

What are the likely benefits of such a database? What are the costs? What experience supports your claim?

We have state-level databases so your argument should cite experience with those databases or explain why national must be different. Try to not assume anything silly about US borders or illegal manufacturing and smuggling.
12.1.2005 10:41am
corngrower:
Tim

What other enumerated protections from the govt are you willing to regulate? Speech? Maybe the govt can quarter troops in my house as long as its regulated. Can we regulate The free expression of religion? (oops, guess we alredy do that)

Restrict or regulate? You can define it...But I do not want elected pinheads deciding it for me.
12.1.2005 11:01am
Gordon (mail):
RKV: As a gun-rights absolutist, you are part of the problem, not the solution. If gun rights absolutista are unwilling to be reasonable, then I won't be reasonable either. Let's go back to the "militia-only" interpretation of the 2nd amendment, and just wait until the next outrage perpetrated by a lone gunman/domestic terrorist to push public opinion closer towards confiscation. If you are unwilling to be reasonable, the other side will also be unwilling, and I predict that's where we will end up. Maybe not tomorrow, maybe not in five years. But some day.
12.1.2005 11:29am
Gordon (mail):
RKV:

Fortunately the tide is turning. I note the sunset of the so-called "Assault Weapon Ban" (aka "the unconstitutional ban on military looking semi-automatic firearms") with pleasure.

As a gun rights absolutist, do you draw a a line anywhere? Are limits on bazookas unconstitutional? Surface-to-air missiles? Dirty bombs?

I detect ACLU logic here. And I'm glad we have the ACLU around to remind us about our liberties. I just happen to also think they are wrong most of the time and carry things to an illogical and absurd extreme.
12.1.2005 11:35am
RKV (mail):
Gordon - the Constitution defines the missions of the militia in Article 1 Section 8. Quote "To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;" Weapons needed to fulfill these purposes are what are protected. Or are you ready to throw out more of the Constitution without the formality of amending it? To get an idea of what the founders thought about who the militia were and what "well regulated" means in an originalist context I suggest you read the "Militia Act of 1792." http://www.constitution.org/mil/mil_act_1792.htm It says in part "each and every free able-bodied white male citizen of the respective States" shall have a military weapon, ammunition and supplies. I also tend to pretty absolutist about the other rights guaranteed in the Bill of Rights - and am proud to say so.
12.1.2005 11:52am
RKV (mail):
Gordon - I do have and idea about gun control and who should not be allowed to exercise their rights under the Constitution which I consider to be reasonable. How about we restrict the rights of convicted violent felons to own arms, after due process of law - namely conviction by a jury in a court with access to council and right of appeal. That seems reasonable to me. But we do that already you say? Yep. Otherwise we take an enumerated right and make it into a privilege, which it isn't, at least according to our written constitution. Don't like what the Constitution says? Pass an amendment to change it - that is the correct and legal process. Its been done before and will be again, I dare say.
12.1.2005 12:09pm
Kevin Baker (mail) (www):
Gordon wrote:

"Also I commend the Clinton administration for acting creatively to create the needed national database of gun owners. Too bad the current administration and Congress won't allow this sensible measure to continue."

So you would support something like Canada's $2 billion registration fiasco?

Quoting a post by Eugene Volokh, http://volokh.com/2002_10_20_volokh_archive.html#85603351

This is from the Testimony of Charles T. Morgan, Director, Washington Office, ACLU, Hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representations, 94th Cong., 1st Sess., on Firearms Legislation, serial No. 11, pt. 8; the dates are listed on the cover as being May 14, July 17, 23, 24, September 24, and October 1 and 9, 1975 -- the photocopy that I have isn't clear on precisely what day the testimony was given, but I'll try to check when I get back to the office Monday. The testimony starts on p. 2951, and the quote is from p. 2952:
What the administation's and Congressman McClory's bills . . . call for is a whole new set of Federal records. . . .

I have not one doubt, even if I am in agreement with the National Rifle Association, that that kind of a record-keeping procedure is the first step to eventual confiscation under one administration or another.
And this even though Mr. Morgan made clear that "I am in favor of the abolition of handguns" (though he opposed the abolition of long guns).
Registration is useless for anything but taking guns away from the registered owners. Ask the British.

I will not license, I will not register. Period. And apparently neither will a significant quantity of Canadians. And I will strongly oppose anyone who advocates it.
12.1.2005 12:24pm
corngrower:
Gordon;

Go back and get some history. As in, why is the 2cnd ammendment in the Constitution? There is only ONE reason. Just ONE. To give me the ability to protect myself from the GOVERNMENT!

Go crazy. find another reason. It just don't exist.
12.1.2005 3:48pm
markm (mail):
For those who think that "arsenal" restriction is reasonable, I know people who will burn 1,000 rounds in a day at the range. You should fire more than 1,000 rounds to be really proficient with any particular weapon.
12.1.2005 4:18pm
jgshapiro (mail):
corngrower/RKV:

You're not going to be able to protect yourself against the government, repel an invasion or suppress an insurrection with the guns people believe you have a right to own under the 2nd amendment (even assuming the 2nd amendment provides an individual right and you include automatic weapons in the definition of "arms").

The government has tanks and APCs, planes and laser-guided missles, and other sundry weapons (including WMD) that you don't have and never will. With the weapons you have, you may slow them down for 5 minutes if they come after you, but not for much longer. Remember Waco? How long did they last once the government took off the gloves? The same applies to anyone who would get past the military in an invasion. Perhaps you could help suppress an insurrection with your M16, but I'm fairly confident that the Guard and the Army won't need your help.

So what really is the purpose of the 2nd amendment circa 2005? The doomsday scenario of keeping the federal government at bay when the black helicopters start to fly makes no sense in a world where the federal government has state of the art military equipment, and you have a sawed off shotgun.
12.1.2005 6:08pm
Joe Huffman (mail) (www):
Corngrower wrote:

The bill of rights defines our rights by banning the govt from taking action to usurp the enumerated powers of the people.


The U.S. constitution enumerate government powers and guarantees certain individual rights. All rights and powers not enumerated are retained by the states and the people.

Tim wrote:

On the other hand, hopefully everybody can agree that guns should not be completely unregulated. It is just common sense that very dangerous weapons should be regulated, right?


Specious logic. Very appealing at first glance but it turns out that, as near as I can tell, that line of reasoning is false. Check out my Just One Question posting then we can talk about it further.
12.1.2005 6:14pm
jgshapiro (mail):
I neglected to mention, in response to corngrower's posts about the bill of rights, that he conveniently forgets the language in the 2nd amendment about a "well-regulated" militia. Even if "militia" includes every able-bodied person, if we have a right to (well) regulate the militia, doesn't that include the right to require training, registration, etc. for all such persons? Why wouldn't it include the power to prescribe what weapons they could or could not carry?

The 2nd amendment is at war with itself. At worst, from the standpoint of those of us who advocate sensible regulation of guns, "well-regulated" cancels out "not be infringed" and what you have left is an inkblot on the constitution that reads like a rorschach test. At best, from the standpoint of the gun owner, it prohibits only confiscation and would allow just about anything else.

The most interesting part of the debate over the meaning of the 2nd amendment is not the words of the amendment, but the fact that the NRA and likeminded organizations never seems to challenge any regulation on the basis of the 2nd amendment. Their inaction validates the theory that they know they stand on shaky ground when making their legal claims.

Case in point: The voters of San Francisco (or at least 58% of them) passed an ordinance in November 2005 through voter referendum banning handgun ownership within city limits. The ordinance requires all gun owners to surrender their weapons to police by April 1, 2006. The ordinance was predictably challenged within a day or two by a group of gun-rights organizations, but only on statutory grounds [link]. Now, admittedly, there is an argument that the ordinance violates state law which prohibits local regulation of guns. That is why I voted against it: it will cost a lot to defend and will almost certainly be voided. But a sensible litigation strategy by the NRA would also allege a 2nd amendment violation as a backup argument. Yet, no such argument was made. Why not?
12.1.2005 6:37pm
Joe Huffman (mail) (www):
You are using the wrong definition of regulate. You should be using this one.

There are valid reasons for not challenging Proposition H on 2nd Amendment grounds. Mostly it's because the 2nd has never been ruled to apply to states, only the Feds. There are other reasons too, but I don't have the time to get into that now. But it's not because the interpretion of the NRA differs from the original intent.
12.1.2005 7:36pm
RKV (mail):
Shapiro - there is so much wrong with your reasoning that it is hard to know where to start. In fact it is probably a waste of my time given your demonstated lack of logic and weak grasp of history, but I will at least make an attempt. You assume (falsely) that I limit the arms which persons have a right to own to hand held automatics. I don't. You do know what a letter of marque is? See Article 1 Section 8, US Constitution. Please don't feed me any falacious arguments about needing a letter of marque to equip a warship with canons. That was not the historical practice at the time of the founding, which ought to be enough to clarify what was intended by the 2nd Amendment. And yes there was (historically) a naval militia. Turns out there was one during WW2 also. As to the 2nd Amendment being *at war with itself" this myth has been debunked so many times it is pathetic that you repeat it. Well regulated in the time and context of the Constitution meant (effectively) - "properly functioning" as in a well regulated clock. See my prior link to the Militia Act of 1792 for details. To repeat it says in part "each and every free able-bodied white male citizen of the respective States" shall have a military weapon, ammunition and supplies. Think how things are done in Switzerland, OK? With respect the San Francisco, the voters there can no more repeal one provision of the US Constitution than they can seceed from our country. Here endeth the lesson.
12.1.2005 8:21pm
ChrisPer (mail):
Why can't we have a reasonable debate?

Because one side is absolutely unreasonable. They attach moral worth to agreement with their prejudice. They take, and take, and take, and pretend that every new taking is the first step to reason.

The reason is that gun control is not, like RKBA fanatics say, 'about control'. It is about showing righteousness. Laws passed can have any effect or none at all, but the proponents do not care. They get their moral righteousness credit, and that is all the reward they need.

In that environment, the opponents of the 'good and the right' are subtly or overtly labelled as hateful people; not that the activists would call them such, oh no. It isn't a hate movement because its NICE people trying to do NICE things.

The psychological mechanisms of gun control activism are the same as racism, the same as all extremisms, and like them are not self-limiting; there is no 'enough'.
12.1.2005 8:33pm
jgshapiro (mail):
RKV:

Your ad hominem attacks make clear that it is your side whose reasoning is illogical -- else, why the vitriol?

I am not speaking only of your views of the 2nd amendment, but of most 2nd amendment proponents. Frankly, I don't care about your views in particular. They have no importance as distinguished from your compadres. Almost no gun rights proponents argue that the 2nd amendment confers a right to weapons more lethal than the handheld variety, and the remainder of such proponents are not taken seriously by pretty much anyone. (Someone arguing that they have a right to own an operational tank would be laughed out of court.) Whether there was a naval militia in WWII is beside the point; do you believe even a conservative court would uphold your right to operate a working submarine in Lake Michigan?

I did not speak at all of letters of marque, so I certainly did not "feed you any fallacious arguments about needing a letter of marque" for any purpose.

Your belief that "well regulated" has the narrow scope you ascribe appears to be wholly your own; I note that you did not provide any citations for this view. If you look online for the standard dictionaries, all of them include definitions of this term that are much broader than you, or Mr. Huffman are willing to acknowledge. See, e.g.:

Cambridge Dictionary
regulate

to control something, especially by making it work in a particular way

Merriam-Webster
regulate

1 a : to govern or direct according to rule b (1) : to bring under the control of law or constituted authority (2) : to make regulations for or concerning
2 : to bring order, method, or uniformity to

American Heritage
regulate

1. To control or direct according to rule, principle, or law. 2. To adjust to a particular specification or requirement: regulate temperature.

Moreover, the normal use of the word regulate would encompass all of the regulations that Congress has proposed in Brady I and Brady II. Certainly the FDA does more than "adjust so as to insure accuracy of operation" when it decides what drugs can be legally sold and with what warnings, etc. The common definitions of "regulate" would encompass any regulation of weapons up to (but excluding) prohibition and confiscation of all weaponry.

Which is ironic, because it is exactly the ordinance that San Francisco passed that could actually be struck down by application of the 2nd amendment -- if "militia" is a reference to an individual right, if the right to bear arms is so fundamental that it justifies applying the 2nd amendment to the states through the 14th, and if state law was not sufficient to invalidate the ordinance on its own. So there is no reason not to argue the 2nd amendment in challenging the SF ordinance unless the very people who publicly claim to believe in a broad scope for the 2nd amendment privately doubt they would win on their arguments in a court of law.
12.1.2005 10:07pm
Brett Bellmore (mail):
JG, you can whip out all the definitions you like, but you're missing a key distinction; It's the militia that gets well regulated, and it's the right that doesn't get infringed. The regulation of the militia doesn't get you your infringements.


So there is no reason not to argue the 2nd amendment in challenging the SF ordinance unless the very people who publicly claim to believe in a broad scope for the 2nd amendment privately doubt they would win on their arguments in a court of law.


On the contrary, we quite publicly doubt that a Supreme court which has denied cert without comment to every single appeal which dared to mention the 2nd amendment during the last 70 years, is about to stop ducking the issue tomorrow. The position of most pro-gun organizations is that it's better to strike down a bad law on side issues such as vagueness, than to feel all rightious about having challenged it on the proper grounds, but have the law stand because the magic words "Second amendment" caused the Supreme court to reject the case.
12.1.2005 11:34pm
jgshapiro (mail):
It's the militia that gets well regulated, and it's the right that doesn't get infringed.

Well, that's an interesting take, but I don't think it washes.

First, if the militia refers to an individual able-bodied adult (and not the collective right to a militia), then it is an individual able-bodied adult who can be regulated in the course of his militia duties. The amendment concedes as much. Since regulation = control, then as long as that control is not so absolute as to swallow the right entirely, it is consistent with the first half of the amendment. So, he can be required to get training before bearing arms, he can be told what arms and ammunition he can and cannot have, he can be required to pass a background check and/or carry a permit, etc. Pretty soon, you have the Brady Act (V.1 or V.2)

Second, you still have to define what arms means. Virtually everyone (implicitly) acknowledges thatthe 2nd amendment does not guaranty an unlimited right to bear any form of arms (nuclear, for example), and yet, virtually everyone acknowledges that it must include the right to own something more potent than a 1789-era musket. So, who decides where the line is? I would suggest the answer is Congress, and their authority lies in their ability to regulate the militia.

Third, and more generally, the first half of the amendment is the predicate for the second half: you cannot interpret the second half without reference to the first. I know that gun rights advocates want to pretend that the first half is mere surplusage, but that doesn't pass the straight-face test. No other amendment included a "whereas" clause, so why would this one if that was all the first half was meant to be?

The position of most pro-gun organizations is that it's better to strike down a bad law on side issues such as vagueness, than to feel all rightious about having challenged it on the proper grounds, but have the law stand because the magic words "Second amendment" caused the Supreme court to reject the case.

That assumes you can only proceed under one argument. But obviously, you can advance alternative theories. So if you don't use the constitutional theory, there must be a reason, and it can't be a good one. [Incidentally, the Supreme Court can duck the issue, but the district court and the circuit court would have a much more difficult time doing the same.]
12.1.2005 11:55pm
RKV (mail):
Shapiro, Your lack of logic shows again. I made NO ad hominem arguments. Asserting that I made one does not in fact prove that I did, representing nothing more than a failed attempt to divert attention from substantive issues. I did say your arguments were in error, both logically and as to historical fact. I proved the same with the plain text of the Constitution itself and with examples from legislation from the founding period. You have said that "virtually everyone (implicitly) acknowledges that the 2nd amendment does not guaranty an unlimited right to bear any form of arms.." This is one of your several unsupported overgeneralizations. You use a modern dictionary to define terms of a 200+ year old document, rather than looking for the meaning in terms of the period when the document was written. My reference to letters of marque proves that private warships were in operation at the time of the founding - that certainly demonstrates private possession of weapons more powerful than the hand carried variety. I could go on, but you want to believe what you want to believe - namely that the 2nd Amendment does not protect an individual right to possess arms irrespective of militia service. This is a case of you fitting the facts to your conclusion, rather than letting the facts determine the conclusion.
12.2.2005 12:35am
jgshapiro (mail):
RKV:

You began your argument with the following statement:

there is so much wrong with your reasoning that it is hard to know where to start. In fact it is probably a waste of my time given your demonstated lack of logic and weak grasp of history

I think that introduction speaks for itself, but since you seem to miss the point, beginning a rebuttal by insulting your opponent demonstrates only that you are either trying to intimidate them or distract the audience. It may not be ad hominem by definition, but It certainly doesn't make what follows any more persuasive. Likewise, dismissing arguments with which you disagree as "pathetic."

As for the specifics of your latest post, I will defer the reader to common experience as to the number of people who share your views of acceptable "arms" that may be owned under the 2nd amendment. It shouldn't be necessary for most readers for me to provide evidence of such commonly recognized beliefs as the view that the 2nd amendment does not allow you to own a tank (or a private warship).

As for the proper source for definitions, you can't have it both ways. If "regulate" is defined as of 1789, than so is "arms," and your right can be limited to arms in existence as of that time. Conversely, if we can accept a modern definition of "arms," than we can accept a modern definition of "regulate." I don't know if your definition of "regulate" circa 1789 is accurate and I don't have the time to research it, but it doesn't really matter: even if you are correct, no court is going to confine the definition of that word as much as you would by reference to such an old and peculiar definition. The term is commonly used today and has been for decades and as so used has a much broader meaning than you (or Mr. Huffman) are willing to concede.

Taking a step further back, the argument that the 2nd amendment allows an unrestricted right to bear arms based on the literal words of the second half of the 2nd amendment is comparable to an argument for 1st amendment absolutism. After all, the 1st amendment says "Congress shall make no law abridging freedom of speech" and has no language preceding it that undermines that very statement, such as "well regulated." Yet, we all know that the courts have rejected 1st amendment abolutist arguments for decades, and it is predictable that they will do the same for 2nd amendment absolutism.

Furthermore, I do believe that the 2nd amendment protects an individual right to bear arms, but that that right can be regulated, so your statement about "what [I] want to believe" just means you haven't read my postings very carefully. My view is that the use of the term "militia" doesn't matter because "well regulated" (almost) cancels out "not be infringed" and the most that can be said for it is that it prohibits Congress from enacting a total ban on ownership of weapons and ammunition and/or confiscation of the same, but probably does nothing more.

If there is someone out there who has a better argument as to why I am wrong, absent the posturing and invective of RKV, I would be glad to hear it, but I haven't seen it yet. Moreover, the actions (or more accurately, the inaction) of the NRA in challenging laws such as the SF ordinance on constitutional grounds leads me to believe that they are privately not so confident of their legal standing on this issue.
12.2.2005 3:35am
RKV (mail):
Shapiro as always your projection is showing. You accuse me of starting off insultingly, when you are the one who started with false claims of ad hominem attacks. So you won't bother to fact check on definitions either. Typical. When you get to a copy of the Oxford English Dictionary give it a try. Or you could go http://www.lectlaw.com/files/gun01.htm. I quote in part -though I doubt you will be bothered to read it all given past performance.
The Oxford English Dictionary gives the following examples of usage for the term "well regulated": 1709: "If a liberal Education has formed in us . . . well-regulated Appetites, and worthy Inclinations." 1714: "The practice of all well regulated courts of justice in the world."1812: "The equation of time . . . is the adjustment of the difference oftime, as shown by a well-regulated clock and a true sun dial." ... One definition of the word "well" in the Oxford English Dictionary is
"satisfactorily in respect of conduct or action." One of The Oxford English Dictionary definitions for the term "regulated" is "b. Of troops: Properly disciplined." The one example of usage is: "1690: Lond. Gaz. No. 2568/3 'We hear likewise that the French are in a great Allarm in Dauphine and Bresse, not having at present 1500
Men of regulated Troops on that side.'" The Oxford English Dictionary, Second Edition (Clarendon Press, Oxford 1989).


So your line of argument about "well regulated" cancelling out the "not-infringed" part of the 2nd Amendment is all speculation and lack of study of the historical context on your part. I have demonstrated that a well regulated militia is an effective one, able to perform its combat mission under the control of authority. In any event the plain text of the amendment secures the right to the people and not to the militia. I have offered up several examples of how your willingness to restrict the right are not supported by the text or the history, and you have chosen to ignore them (i.e. use of private warships in the revolution and the Militia Act requirement of all male citizens to own a military rifle). You persist in describing as "invective" what are in reality arguments based on facts. Of course this position is necessary to get to your real objective, which is the justification of restrictions on the 2nd Amendment, which are inconsistent with original intent.
12.2.2005 8:59am
Gordon (mail):
RKV: Even if we accept your definition of "well-regulated" from the 18th century as controlling, the federal (or state) government is thereby allowed to require registration of guns and mandatory gun safety training for their owners and users (once again, as with motor vehicles). For the militia to be "well-regulated" it must be well-trained in the use of firearms, and able to perform its missions under the control of authority.

To ensure, therefore, that the guns in possession of our "militia" (armed citizens) are well-regulated, the government must know who has them and must know that those who have them are trained in their proper care and use. And that includes not only training in how they can be used to shoot and kill an "enemy," but how they can be stored so as to deter gun thieves and protect the children of the gun owner from accidentally (or purposefully) shooting themselves or others. And that includes anger management training for the gun owner, so that he or she doesn't decide to shoot their spouse over an adulterous affair, or cold mashed potatoes, or a missing paycheck.

It also includes mandatory background checks, since a "well-regulated" militia of citizens shouldn't include felons, minors, and those who have demonstrated misuse of firearms in the past.

So I applaud your definition of "well-regulated." It helps make the case for those of us who are neither gun rights absolutists, nor gun prohibition absolutists.
12.2.2005 11:45am
RKV (mail):
As usual you miss the point Gordon, and of course the miss follows your desired trajectory. No surprise there. The peoples rights are not to be infringed, which does not allow licensing or training requirements for the people to keep or bear arms. It does require organization and training for the militia members and units. Read a bit more history before you draw conclusions as to intent.
12.2.2005 1:01pm
Gordon (mail):
Actually, RKV, I'm just trying to relate the dependent clauses in the 2nd amendment with the main sentence.

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.

The standard gun controllers' view of this language is to read the main sentence exclusively in light of the dependent clauses and say that the only right conferred by the 2nd amendment is the right for a state to have its own national guard units.

On the other hand, you and other gun rights absolutists read the dependent clauses as completely independent thoughts.

In fact, the best way to read the 2nd amendment is 1) the right of the people to keep and bear arms shall not be infringed, and 2) the reason this right is bestowed is that a well-regulated militia is necessary to the security of a free state.

And since a "well-regulated" militia is one that is disciplined and ready to fight in a professional manner, it is incumbent for the State to know who has the weapons (registration) and ensure that those who have the weapons know how to use them and avoid misuse of them (training).

But it doesn't allow the State to confiscate weapons. This would make a hash out of the 2nd amendment.

Now, policy arguments are a whole different matter. If you want to argue that mandatory national registration and training is bad policy and shouldn't be legislatively enacted, go right ahead. I just object to your claim that mandatory national registration and training would be unconstitutional.

It's "historic compromise" time, folks. Step up to the plate.
12.2.2005 1:50pm
RKV (mail):
In light of the view of people like Hamilton (see Federalist 28 and 29) your "historic compromise" is nothing short of a betrayal.
If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.


12.2.2005 2:17pm
Gordon (mail):
Well then, RKV, it's all-out (political) war, isn't it?

Good luck.
12.2.2005 3:24pm
jgshapiro (mail):
I have demonstrated that a well regulated militia is an effective one, able to perform its combat mission under the control of authority.

You haven't demonstrated anything, only asserted it. But even if we acept your assertion, the qualifiers 'effective' and 'under the control of authority' support my conclusion, not yours. An effective militia member is one that is trained, so a training requirement would be consistent with the amendment. A militia that is under the control of authority is one where the authority can tell each member what weapons he must or cannot have, what ammunition he must or cannot have, to register his weapon, etc. A militia where every member possessed different weapons, different ammunition, had widely different training, etc. would not be very 'effective.'

None of the regulations contemplated by Brady I or II would be inconsistent with the concept of an effective militia under the control of authority (which, by the way, is a concept equivalent to the modern definition of 'regulate').

As for text and history, I refer to to United States v. Miller, 307 U.S. 174 (1939), the only useful discussion of the 2nd amendment from the Supreme Court. In that opinion, the court said:
The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
That statement makes clear that the second half of the amendment is dependent on the first. Moreover, the court also stated:
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
That statement makes clear that some types of weapons are not protected by the 2nd amendment.

Miller, a case that predates WWII, makes clear what no gun rights absolutist can bring themself to admit: that the 2nd amendmnt allows reasonable regulation of weapons, so long as that regulation does not amount to a ban or confiscation of all weapons or the practical requivalent of the same (e.g., the ban of all ammunition, a large tax on all guns, etc.).

Even Prof. Volokh has admitted as much in his testmony before the Subcommittee on the Constitution:
While the evidence that the right is an individual right is extremely strong, the precise scope of the right is a matter of considerable debate . . . Thus, recognizing that the Second Amendment secures an individual right tells us little about most moderate gun controls, for instance background checks, waiting periods, or modest restrictions on the kinds of brands that may be marketed. I don't know how these laws should be treated; I suspect that many would be upheld, like many modest speech restrictions are upheld despite the existence of the First Amendment.
There is no real question that the Brady Acts are constitutional, which is why the NRA did not challenge them on 2nd amendment grounds. Whether they were, or would (even with modifications) be *effective* in improving public safety is an entirely different conversation.
12.2.2005 3:58pm
Walter:
So jgshapiro, by your logic of personal guns vs. the US Military, the US will win the war in Iraq because the terrorists are just using small weapons (where as the US has all sorts of big weapons).

I'm glad that you see that the US must win in Iraq because it has the weapon advantage.
12.2.2005 6:41pm
jgshapiro (mail):
Walter:

You are changing the discussion over to a policy argument, from a legal one. But to address your point, here are some questions for you:

1. How long did the folks in Waco last once the government got tired of waiting around? Koresh &Co. had quite an arsenal and the military was not even involved (Posse Comitatus). What about the Freemen? How long did they last?

2. How many people die every year due to gun-related violence as compared with the benefit of being able to launch an insurgency if the President and the JCS decide to turn the military against us (and the military follow them)?

3. What is the likelihood that in this day and age (as compared with the 1700's when the federal government and a federal military were new entities) the military would follow an order to turn against the people? If it did, don't you think enough service members would change sides so that your right to own militia-style arms would be irrelevant (because you would have access to much more potent arms)? Or do you think that folks who serve in the armed forces are so brainwashed that they would universally support the takeover?

4. Would the requirements of the Brady Act (background check, etc.), or a requirement for training and/or permitting gun owners, or a requirement for gun locks, or intelligent triggers, etc. prevent an American insurgency from resisting a military takeover of the United States?

5. If you accept the premise that a local militia could resist federal oppression, in some form or another -- who controls the local militia (as distinguished from the Guard)? Do you really trust anyone with a weapon to decide for themselves when to take up arms against our own elected government?

The doomsday scenario made sense when the 2nd amendment was written, but not so much today. Then, people were paranoid of centralized federal control and of a centralized military, because of their experience with the British. So, the 2nd amendment was a safeguard, as well as a warning to those in power.

Today, the principal reasons most people own weapons are self-defense (from criminals, not from the government), hunting, recreation and perhaps, as part of a collection. In none of those circumstances do you need to own a working machine gun, armor-piercing bullets or a private warship. In none of those circumstances would the kind of restrictions I have been discussing prevent you from reaching your objectives (self defense, recreation, etc.). I'm just sugesting some cost-benefit analysis here.
12.2.2005 9:27pm
Matt22191 (mail):
jgshapiro,

I find it ironic that you'd assert, on this particular blog, that "I know that gun rights advocates want to pretend that the first half is mere surplusage, but that doesn't pass the straight-face test." I say that because our gracious host, the Conspirator-in-Chief, addressed the issue of the meaning of the "first half" (the justification clause) in his 1998 N.Y.U. L. Rev. article entitled The Commonplace Second Amendment. Here are some excerpts:

"The Second Amendment, unusually for constitutional provisions, contains a statement of purpose as well as a guarantee of a right to bear arms. This unusual attribute, some argue, is reason for courts to interpret the Second Amendment quite differently than they interpret other constitutional provisions — perhaps to the point of reading it as having virtually no effect on government action.

"My modest discovery is that the Second Amendment is actually not unusual at all: Many contemporaneous state constitutional provisions are structured similarly. Rhode Island's 1842 constitution, its first, provides

'The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .'

***

"These provisions, I believe, shed some light on the interpretation of the Second Amendment:

1. They show that the Second Amendment should be seen as fairly commonplace, rather than strikingly odd.
2. They rebut the claim that a right expires when courts conclude that the justification given for the right is no longer valid or is no longer served by the right.
3. They show that operative clauses are often both broader and narrower than their justification clauses, thus casting doubt on the argument that the right exists only when (in the courts' judgment) it furthers the goals identified in the justification clause. 8
4. They point to how the two clauses might be read together, without disregarding either.

***

"I believe the justification clause may aid construction of the operative clause but may not trump the meaning of the operative clause: To the extent the operative clause is ambiguous, the justification clause may inform our interpretation of it, but the justification clause can't take away what the operative clause provides. And because we know that operative clauses may be at times broader and at times narrower than justification clauses, we should accept that the two clauses will sometimes point in different directions."

I commend the full article to you.

You also say,

An effective militia member is one that is trained, so a training requirement would be consistent with the amendment.

If by "training requirement" you mean "a requirement that the militia train," you're right. Congress clearly has the power to "regulate" the militia "well" by compelling it to train. But this flows not from the Second Amendment, but from Article I, section 8's grant of the power "[t]o provide for organizing, arming, and disciplining, the militia ... reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." (By the way, I think the term "disciplining" here means, essentially, establishing standards for training, not, "making general rules of conduct and enforcing obedience to them." I think the latter authority comes from the power "To make rules for the government and regulation of the land and naval forces ..." which is also in Article I, section 8.)

But if by "training requirement" you mean, "a requirement that one undergo (militia) training before he may keep and bear arms," your conclusion doesn't follow at all. The grant in the operative clause of the Amendment guarantees a right of "the People." The phrase "the People" has one, consistent meaning in the Bill of Rights: each individual who is a member of "the People." Congress has no obligation to prescribe training for the militia, as Prof. Volokh notes in his article. In fact, Congress doesn't require the militia to train and, as I understand it, never really has. It has the power to do so, but no obligation. If the individual right secured by the operative clause of the Amendment depended upon Congress doing something that it has no obligation to do, it would be no "right" at all.

A militia that is under the control of authority is one where the authority can tell each member what weapons he must or cannot have, what ammunition he must or cannot have, to register his weapon, etc.

The Article 1, section 8 power to organize, arm and "discipline" the militia certainly must include the power to tell each militia member that he must have a certain weapon, and a certain type and amount of ammunition for it. It probably includes the power to require him to provide the weapon and ammunition; there is colonial precedent for such requirements, as noted by the Miller court. (Few things would tickle me more than if Congress were to pass a law requiring each member of the militia to buy an AR-15 and a basic load of ammunition. It seems to me that such a law is pretty clearly within the power of Congress, and the reaction in some quarters would be wildly entertaining. Not that it could happen in today's America, of course, but a boy can dream.)

And if Congress may require militia members to arm themselves, it certainly also may require them to prove compliance with that requirement, e.g., by appearing at musters and submitting to inspection of themselves and their arms. (This would be tantamount to a limited form of registration.) There's also ancient precedent for that sort of thing — as noted by, again, the Miller court.

But as to your claim that the "well-regulated militia" clause permits Congress to ban all guns except those that it prescribes for the militia, or to require registration of guns, I see several problems.

First, the Bill of Rights does not grant Congress powers; it restricts powers granted elsewhere. We can debate whether and how (if at all) the "well-regulated militia" clause is supposed to limit the operative clause of the Second Amendment, but it is clear that the clause is not a grant of power to create a militia and/or to regulate it "well." We must look elsewhere for that power.

Once again, the relevant grant of power is in Article 1, section 8, which permits Congress "[t]o make rules for the government and regulation of the land and naval forces." Now, this power does include the ability to restrict the individual constitutional rights of members of those forces. But, without knowing for sure, I hope that that power is limited to cases where it serves some important military goal. And we should be especially skeptical of regulations that purport to affect the rights of members of the militia when not in active service; if such regulations were broadly permissible, we could arbitrarily subject the entire citizenry to military discipline and turn the country into a police state.

So for example, a unit commander may order a soldier to perform duties that require him to violate his Sabbath, even though this infringes his right to freely exercise his religious beliefs, because the alternative could well be chaos in the ranks. But I would hope that the Constitution doesn't permit a commander to order his soldiers not to attend church services while they're off-duty. (I know that when I commanded Marines, I certainly never believed that my power over them extended that far.) And I would very much hope that the Constitution wouldn't permit militia leaders — or Congress — to order militia members not to attend church, or not to engage in political speech, or not to petition the government for redress of grievances, while they're not only off-duty, but not even in active service. Reading the power to "regulate" the militia that broadly would utterly gut the Bill of Rights.

But if we shouldn't tolerate those sorts of far-reaching regulations, neither should we tolerate regulations that restrict the individual constitutional right of militia members to keep and bear their private arms, except where directly related to some important military goal. So it's perfectly valid for Congress to require soldiers, or members of the militia in active service, to carry certain weapons and only those weapons when they're in on duty. But general regulations against keeping and bearing their private arms while they're not even in active service? General regulations requiring them to register their private arms in the name of "regulating" the militia? Absurd.

Shifting gears, your explanation for why gun rights organizations like the NRA do not push Second Amendment arguments at every possible opportunity, while facially plausible, doesn't merit the certainty with which you proclaim it. The author of the post to which this comment thread is appended has outlined a much more persuasive explanation for why that might be so. An excerpt:

"Robert Cottrol, a professor of law and history at George Washington University, is author of several law review articles on the Second Amendment, editor of the three-volume book Gun Control and the Constitution, and coauthor of the new book Brown versus Board of Education: Caste, Culture, and the Constitution. He strongly supports the Second Amendment as a fundamental human right, particularly for racial minorities who are persecuted by racist government, or who are denied effective police protection. Cottrol argues that the pro-right model for gun-rights litigation "should be the NAACP's highly successful litigation strategy in Brown v. Board of Education. The NAACP took the time to:

1) raise the legal foundation by bringing the appropriate case; 2) get the precise circumstances and plaintiffs to get best posture before the court; and 3) wait until they had the right court."'"

Litigation strategy encompasses a lot more than merely knowing that you're right on the merits. The fact that you may know you're right doesn't mean the court will find in your favor. (Wasn't Dredd Scott right on the merits? Wasn't Homer Plessy?) If you're a cause lawyer with a long-term goal who believes that the courts are biased against your cause, and are likely to reject a constitutional claim that would help your cause, you may decide to refrain from making that claim until you think you have the right court. Otherwise, you may accomplish nothing more than to create (or further entrench) bad precedent. This doesn't reflect lack of confidence in your claim; it reflects lack of confidence in the courts. There's a difference.
12.2.2005 10:04pm
jgshapiro (mail):
Matt:

I appreciate your thoughtful response.

First, I don't pretend to have read everything Prof. Volokh has written on this topic, but I think the language in U.S. v. Miller contradicts what he says and what I think you are saying when you discuss the operative clause vs. the justification clause. Remember, Miller said quite clearly (after quoting Article i, Section 8) that "With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." Miller also said that you don't have the right to own a sawed-off shotgun because it has no value in a militia.

I don't believe that the justification clause provides power by itself to Congress to pass gun control measures for the purpose of regulating the militia. But I find it impossible to read the jusitification clause fairly without concluding that it assumes that Congress already has that power and that it is *not* the purpose of the operative clause to eliminate it.

Therefore, I read the clauses together to mean that Congress can regulate the militia, but cannot completely eliminate the right of the people to bear arms for purposes of being part of a militia. That reading is consistent with Miller. A reading that allows private ownership of non-militia arms is not only inconsistent with Miller, but begs the question of why the justification clause exists.

Second, it is the operative clause that allows a person to bear arms (by preventing the government from restricting that right). Therefore, your statement that "neither should we tolerate regulations that restrict the individual constitutional right of militia members to keep and bear their private arms, except where directly related to some important military goal" seems backwards to me. You are assuming that a person has a right to bear private arms divorced from his militia role, but the amendment and Miller read otherwise. Your right to own arms is directly related to your militia duties. That's why you don't have a right, under Miller, to own a private stash of sawed-off shotguns: they have no value to the militia.

I don't see the analogy to first amendment rights, or to your ability or justification as a Marine commander in ordering your troops to do something, or refrain from doing something under the first amendment. The first amendment is not contingent on a justification clause, let alone one related to maintaining a militia. So outside of the context of the militia, where you might need to curtail some first amendment rights in some circumstances, there would be no cause or authority to limit first amendment rights when your troops acted privately. Here, though, the very right we discuss is connected to the militia. So outside of that context, there really is no right.

[If the first amendment said something on the order of "political speech being necessary for the election of good government, Congress shall make no law . . ." our first amendment jurisprudence would be much different. I doubt there would be any protection for commercial speech or for indecent speech outside of politics. It doesn't, so free speech rights protect more than just political speech. Think about it. Even if you believe that political speech is what the first amendment was trying to protect, the absence of a justification clause has lead to a very broad right -- but still not a right as absolute as you appear to believe that the 2nd amendment provides.]

Third, Miller was decided in 1939. I could be wrong here, but I cannot recall any prominent cases being fought on 2nd amendment grounds in the last two decades and I have not seen any citations to them (apart from the recent competing dicta from the 9th and (I think) 5th circuits). So if the reason the NRA hasn't raised this issue is that they are pursuing a go-slow strategy, it can best be described as go-VERY-slow. What progress have they made? What laws are they waiting for? (They did not challenge Brady I, the assault weapons ban, the armor-piercing bullet ban, the SF ordinance, any of the 'may' issue statutes, etc.). Inquiring minds want to know!
12.2.2005 11:48pm
Matt22191 (mail):
1. How long did the folks in Waco last once the government got tired of waiting around? Koresh &Co. had quite an arsenal and the military was not even involved (Posse Comitatus). What about the Freemen? How long did they last?

Not long. But this is a specious argument. The Branch Davidians and Freemen were small groups that were known to the government, in a fixed location. This gave away the initiative (a fixed defense always does), which allowed law enforcement to mass superior man- and firepower, and move when they were ready. That's always a losing proposition. But if you imagine that's how a generalized insurrection in the U.S. would work, you haven't really thought much about this. It is entirely possible to fight larger, better-equipped forces if you stay mobile, fade into the background when not actually engaging the enemy (either by blending into the civilian population or, in a full-time guerilla organization, by hiding in places where you're very hard to find), retain the initiative, and attack when and where you are able to achieve temporary superiority. That worked very well for the Viet Cong for a number of years. It was only when they massed and fought as conventional infantry during the Test Offensive, exposing themselves to the full fury of American firepower, that we were able to militarily defeat them. That's the model for an insurrection in the modern age -- not the Branch Davidians or the Freemen (who, in any event, didn't really want to fight). Imagine 20,000,000 people with guns living normal lives 29 days a month, and working on the government in small, anonymous groups the other one day a month -- all over the country. Think about it. I believe that prospect has real deterrent power. If those 20,000,000 people are just another 20,000,000 disarmed, helpless sheep, it's not nearly as intimidating a prospect.

2. How many people die every year due to gun-related violence as compared with the benefit of being able to launch an insurgency if the President and the JCS decide to turn the military against us (and the military follow them)?

That's impossible to say. (And don't forget that there are plenty of benefits to private gun ownership, regardless of what you think of the doomsday scenario. An awful lot of crimes are deterred or prevented because of privately owned guns.) But considering that violence by states against their own citizens killed far, far more people around the world in the 20th century than did violence by ordinary criminals, I place significant value on the ability to launch an insurgency. The poor black Africans in Darfur sure could use a rifle apiece right now.

3. What is the likelihood that in this day and age (as compared with the 1700's when the federal government and a federal military were new entities) the military would follow an order to turn against the people? If it did, don't you think enough service members would change sides so that your right to own militia-style arms would be irrelevant (because you would have access to much more potent arms)? Or do you think that folks who serve in the armed forces are so brainwashed that they would universally support the takeover?

You make some pretty perceptive points here. (Of course I'm biased. I've also come up with these arguments; thus, they must be evidence of a first-rate mind. ;-) ) Speaking again as a former Marine, I think you underestimate the power of groupthink. For every sergeant or captain who's ready to help a group of "concerned citizens" get into an armory or ammo supply point, there'll be many more waiting to turn him in. Universal support? No, of course not. But "universal" support isn't required. There are an awful lot of people who'll go along with a great deal more than you might imagine. (Out of curiosity, do you know how many soldiers or law enforcement officers refused to go along with interning the Japanese on the West Coast in W.W.II? I don't -- but I'll bet it was a tiny proportion, and I'd say the odds are decent that none did.) But that aside, would-be despots throughout history have always been aware of the military as a potential threat, and the smart ones have always found ways of minimizing that threat. Stalin used the brute force approach, and shot or imprisoned nearly every officer with a hint of ability or initiative. It worked pretty well. Others have found equally effective, if less direct, methods. You believe this country has somehow become too civilized for such things. I believe no country is ever too civilized for such things. I think human history provides far more support for my position.

4. Would the requirements of the Brady Act (background check, etc.), or a requirement for training and/or permitting gun owners, or a requirement for gun locks, or intelligent triggers, etc. prevent an American insurgency from resisting a military takeover of the United States?

Background checks in which the records are destroyed immediately? No, it wouldn't. But can you assure me they'll always be destroyed immediately? They wouldn't be as useful to a budding police state as a gun owner licensing scheme, but they'd still be useful.

A training requirement/permitting requirement is problematic for two reasons. First, it would provide our hypothetical police state with a handy list of people with the ability to resist, and perhaps the inclination. Remember what I said about fading into the background? Very hard to do if your name is on a list. Furthermore, to the extent that a training requirement was made incrementally more stringent until it becames effectively made it impossible for most people to obtain a permit, over time it would significantly degrade the ability of an insurgency to resist an American police state. (A slippery slope concern? Yes, many gun owners worry about such things. Why shouldn't we? The prohibitionists have publicly stated that theirs is an incremental strategy.) People who don't know how to use guns probably don't make very effective insurgents. I suspect they're also probably much less likely to consider that sort of resistance a practical option in the first place. Gun locks and intelligent triggers have far more to do with the practical ability to defend oneself against routine crime than with the doomsday scenario.

5. If you accept the premise that a local militia could resist federal oppression, in some form or another -- who controls the local militia (as distinguished from the Guard)? Do you really trust anyone with a weapon to decide for themselves when to take up arms against our own elected government?

We already trust anyone with a weapon to make that decision -- have from the very beginning -- the government hasn't fallen yet. And I don't think it'll be a serious threat as long as the government continues to be reasonably responsive to the will of the people. Ballots are better than bullets, as the saying goes. But what happens if ballots cease to be available -- a possibility you don't seem to take into account? Adolf Hitler was elected. Hugo Chavez was elected, and I'm pretty sure the Venezuelan people will live to regret it. Jean-Bertrand Aristide was elected. Vladimir Putin was elected; is Russia closer to or further from being a liberal democracy as a result? In short, what is the basis for your assumption that elected governments can't turn despotic?

If that ever becomes a real prospect in this country, I hope an armed insurgency will be a real enough prospect to make the government see reason. If it isn't, then I hope there'll be enough people willing to take up arms against our own elected government. And I think they'll be able to figure out when it's time. As to who would lead such an insurgency, there are lots of possible answers. I'm a big believer in spontaneous orders. Americans don't need to be told how to get a thing done, once they decide it needs doing.

Today, the principal reasons most people own weapons are self-defense (from criminals, not from the government), hunting, recreation and perhaps, as part of a collection. In none of those circumstances do you need to own a working machine gun, armor-piercing bullets or a private warship. In none of those circumstances would the kind of restrictions I have been discussing prevent you from reaching your objectives (self defense, recreation, etc.). I'm just sugesting some cost-benefit analysis here.

There's a lot in that last paragraph I'd like to respond to, but not tonight.
12.3.2005 12:00am
jgshapiro (mail):
Matt:

I only have time for a quick response to your last post. I guess it comes down to this: I don't believe that the United States could go the way of Nazi Germany, Stalinist Russia, Maoist China, etc. We have too many checks and balances, too much culture surrounding democracy, too much media (even more now with the Internet and blogs) for the federal government to get away with a military or military-backed putsch.

Can you imagine George W. Bush deciding he did not want to step down after 8 years? Declaring himself president for life? Do you really believe if he gave an order for the JCS to send troops to back him up they wouldn't look at him like he was a madman? I don't mean to pick on Bush in particular; the same applies to any president.

When you consider all of the checks and balances we have, between the three branches of government, the armed forces being divided between five services (plus the Guard), the inculcation of democratic values in the four service academies, the power of impeachment, the 25th amendment, the media, etc., etc., the idea that something could happen where a militia would be needed to resist it seems not only fanciful but downright fantasy.

So the militia power seems more likely to be used by a few loonies who just don't like the way the laws have evolved (e.g., tax protesters, white supremecists) or by people with paranoid fantasies (e.g., the black helicopter set), then by any legitimate need to mount a Nazi resistance movement circa 1941. Again, a cost-benefit analysis.
12.3.2005 12:33am
Matt22191 (mail):
JG,

Yes, I do believe that the operative clause is independent of the justification clause. Rather than crib Eugene some more, I'll just suggest again that you read his article it its entirety. He addresses your objections.

The view that the operative clause is not dependent on its justification is entirely consistent with Miller. Pay very careful attention to what the Miller court did and did not say. It never inquired whether Miller and Layton were members of the militia, or whether they were performing militia duties at the time of their arrest. If the court had believed that the right applied only in the context of militia membership or actual militia service, those would have been central issues in the case. Instead they were non-issues.

What the court did ask was, "is this the type of arm that the Amendment guarantees a right to keep and bear?" And it never moved beyond that question to a substantive discussion of the right -- not because it held that sawed-off shotguns aren't a protected arm (it didn't), but because it said it didn't know the answer to the initial question. ("It is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.") That's an entirely different issue. It's akin to asking, in the context of a free speech case, "is this speech"? If not, then the free speech clause -- although it concededly protects an individual right -- does not apply.

What the Miller court held was that a type of weapon that "has some reasonable relationship to the preservation or efficiency of a well regulated militia," i.e., that a weapon that "is any part of the ordinary military equipment or that ... could contribute to the common defense," is the sort of weapon that the Second Amendment guarantees a right to keep and bear. (And by the way: although arugments from authority are fine for litigation, outside that context I don't think it's wise to fetishize the Supreme Court's view of the Constitution. I hope we're discussing here what the Amendment actually means, which may not be the same thing as what the Supremes say it means. It's not as if the Court has never been wrong.)

I'm afraid I don't share your optimism about the possibilities for despotism in the U.S. I take a much longer view of things. "Can [I] imagine George W. Bush deciding he did not want to step down after 8 years? Declaring himself president for life?" No. But some president thirty years from now, when my children are my age? Or thirty years beyond that? I have no idea what the world will look like then.

"The militia power seems more likely to be used by a few loonies ... then by any legitimate need to mount a Nazi resistance movement ... Again, a cost-benefit analysis."

It seems to me that your cost-benefit analysis here takes into account only probabilities. You need to factor in costs. The loonies you fear may have a higher probability of occurring than does doomsday, but they're likely to do a lot less harm, too.

"the absence of a justification clause has lead to a very broad right -- but still not a right as absolute as you appear to believe that the 2nd amendment provides."

I don't think I've said how "absolute" I think the right to keep and bear arms is. No accident there; concluding that it's an individual right that does not depend on its justification clause is easy. Answering the myriad issues that conclusion raises, isn't. (That probably has to do with why the Court has ducked the Amendment for so long.) But I do think your conception of it is unjustifiably narrow.
12.3.2005 3:42am
Ross Levatter (mail):
While I think Matt has done an outstanding job of responding to Mr. Shapiro, I'd just like to add I find it totally credible that, in the event, for example, of another 9/11 a week or a month before the next Presidential election, Mr. Bush might find himself "compelled" to put the election on hiatus while pushing through PATRIOT-like restrictions on civil liberties that could easily secure his position indefinitely. Meanwhile, I'll also note that, if one had to, in 1900, guess which European nation would be rounding up Jews three decades hence, Germany, with its culture and liberal traditions, would likely not have been the first choice.
12.3.2005 11:54pm
jgshapiro (mail):
It seems to me that your cost-benefit analysis here takes into account only probabilities. You need to factor in costs. The loonies you fear may have a higher probability of occurring than does doomsday, but they're likely to do a lot less harm, too.

If you assume that there is a 1/1000 of 1% chance (0.00001) of a military takeover, is that worth the danger of arming the loonies? After all, once you concede a right for an individual to own arms, and if you further assert that he can own almost any kind of arms, and if you further proclaim that he cannot be required to register the arms, obtain a permit, submit to a waiting period, etc., then it is likely that arms will fall into the hands of people who are not equipped to handle them, emotionally or otherwise. You can only deny them arms if they have already committed a felony when they want to buy them. That's a big chance to take based on a small risk of a great harm occurring.

The harm I fear has actually occurred in this country, relatively recently -- school shootings, subway shootings, etc. -- while the harm you fear has not even come close to happening here. If you think the chance of such a harm is larger than I suggest, it gets us back to the question of how likely is the doomsday scenario, really?

I don't think I've said how "absolute" I think the right to keep and bear arms is. No accident there; concluding that it's an individual right that does not depend on its justification clause is easy. Answering the myriad issues that conclusion raises, isn't.

Well, I agree that it is an individual right; I don't think I have said otherwise. And I agree that it does not 'depend' on its justification clause, but I also believe that the operative clause is limited by the justification clause in the sense that the latter informs the scope of the former. So maybe we actually agree, or the difference is not worth discussing.

In any event, this discussion began with reference to the Brady Act and other similar restrictions, and I think you would have to take a fairly absolute view of the 2nd amendment to conclude that any of these restrictions would violate the 2nd amendment.
12.4.2005 5:07am
Matt22191 (mail):
Test.
12.4.2005 2:00pm
Matt22191 (mail):
Ah, good; the thread is still open! (Comment threads here automatically close after a certain period. I found out the hard way once.)

"[t}this discussion began with reference to the Brady Act and other similar restrictions, and I think you would have to take a fairly absolute view of the 2nd amendment to conclude that any of these restrictions would violate the 2nd amendment."

Well, yes, it did begin with Brady. But my purpose in pointing out what I see as the flaws in your understanding of the Second Amendment argument has been not so much to argue that I think your conclusions about the constitutionality of Brady or Brady II are wrong; as I said, I think those concrete policy questions can be very hard. Rather, my point has been primarily that I think some of your underlying beliefs about the meaning of the Second Amendment, e.g., the import of the term "well-regulated," are wrong. (I, too, see it as "informing" the meaning of the operative clause -- but in a much less radical way than you.) It may still be possible to reach your conclusions starting from what I would consider a correct view of the general meaning of the Amendment. But I think we'd have to come to some agreement about the basics before we could have that discussion.

And don't forget that there has been a significant policy component to this discussion. I joined with a response to this comment of yours, in which you told Walter, "[y]ou are changing the discussion over to a policy argument, from a legal one," and proceeded to make several policy arguments. So don't assume that just because I've argued in favor of some policy, I necessarily think the Second Amendment incorporates that policy into its meaning, and absolutely prohibits anything that might in any way interfere with the policy.

"The harm I fear has actually occurred in this country, relatively recently -- school shootings, subway shootings, etc."

I thought we were discussing your fear that "a few loonies who just don't like the way the laws have evolved(e.g., tax protesters, white supremecists) or [] people with paranoid fantasies (e.g., the black helicopter set)" would "take up arms against our own elected government." The fear of common criminal use of firearms seem to me to be a somewhat different matter.

"[T]he harm you fear has not even come close to happening here."

Some folks might dispute that. Even if those folks are complete loons, it's not necessarily true that we'd know if the harm I fear had come close to happening. That's the problem with deterrence: Unless it fails, it's very hard to know if it's working. But even if you're right, and the U.S. never has been close to becoming a police state, mightn't that have something to do with the fact that the American people are armed to the teeth?

"If you assume that there is a 1/1000 of 1% chance (0.00001) of a military takeover, is that worth the danger of arming the loonies?"

Again, it depends not only on how likely you consider that military takeover, but what you consider its likely costs. Just for example: we could sustain the current annual number of homicides for thousands of years before it would exceed the number that died of Soviet democide. And that doesn't even take into account the value of intangibles like, er, liberty.

I'm not trying to bait you into further argument; I think we've probably reached an impasse. We obviously have significant differences on some very fundamental issues. I just wanted to clarify these points a bit more. I've enjoyed the conversation. It's rare that one of these doesn't devolve into name-calling. Thanks.
12.4.2005 3:00pm
jgshapiro (mail):
The fear of common criminal use of firearms seem to me to be a somewhat different matter.

The loonies I refer to might act unilaterally against innocents (Colin Ferguson) or they might act unilaterally against government targets (Timothy McVeigh). (Yes, I realize McVeigh used explosives, but why give people like him access to more lethal weapons? It's harder to build a working bomb than to buy an assault rifle.) The end result is the same -- dead innocents. The only difference is the motive, and perhaps the number of dead.

But even if you're right, and the U.S. never has been close to becoming a police state, mightn't that have something to do with the fact that the American people are armed to the teeth?

Well, I guess we'll never know. It certainly did not deter Lincoln from taking the actions referenced in your link. But deterrance as a justification has no bounds if you ignore the risk and focus solely on theoretical harm. What wouldn't you allow to deter the equivalent of Soviet demicide? Private ownership of tanks? Nuclear weapons?

I think the risk you fear is too unlikely, and requires too much power in uncontrolled hands to effectively resist. To truly resist a military takeover, you would have to allow weapons that are just not safe in the hands of any Joe Sixpack without a felony conviction. I certainly would not leave it Kos to decide whether to take up arms against the Bush administration!

So, I guess we are indeed at an impasse. But I agree that it's been a fun conversation.
12.5.2005 5:01am