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Obama's Support for a Ban on Sales and Transfers of All Semi-Automatic Weapons:

Just wanted to highlight a fact I discuss in more detail in the post below: Sen. Barack Obama's stand on guns is apparently to support a ban on sales and transfers of all semi-automatic weapons.

For those not up on the details, note that this is far broader than the existing bans on fully automatics, or the bans on so-called "assault weapons." Most modern handguns (such as my own Glock 17) are semi-automatic, as are many rifles (such as my Ruger 10/22) and quite a few shotguns. And while the ban would still allow sales of revolvers, bolt-action rifles, pump-action shotguns (such as my Mossberg), and similar guns, there's good reason to think that a broad ban on semi-automatics would lead to still broader bans.

Related Posts (on one page):

  1. Does Barack Obama Have Even More Ambitious Plans for Gun Control?
  2. Obama's Support for a Ban on Sales and Transfers of All Semi-Automatic Weapons:
Anderson (mail) (www):
Campaign pablum. He'd never get it past the Congress.
5.9.2007 8:19pm
therut:
You know the ole saying "Come and get them". Not going to happen. He is a fool. And I do not say that about many people.
5.9.2007 9:06pm
Viscus (mail) (www):
Since Obama is not familiar with firearms, it is perfectly possible that he does not know exactly how broad the term "semi-automatic" is. Before I knew anything about guns, I used to associate "semi-automatic" with "automatic" without realizing that these are very different things and that most guns are in fact semi-automatic.

So, before you go freaking out, I think it would be useful to see if he has the opportunity to clarify his views on this issue. The check mark here might mean very little, based on what he does or does not know about guns.
5.9.2007 9:27pm
c.f.w. (mail):
EV owns a Glock 17, a Ruger 10/22, and a Mossberg shotgun? Stored under lock and key off the house premises I would hope. I have used shotguns to shoot clay pigeons, used the 22 to shoot targets (NRA club, when 11) and used pistols (on army ranges). I would not keep them around the house with ammunition, absent some specific threat. Statistics on suicides, accidents and domestic shootings are too sobering. Those who keep an arsenal with ammo at home, absent specific threats are, in my view, compensating for sense of inadequacy or seriously underestimating threat of unfortunate incidents (suicides, accidents, domestic shootings). The "I plan to shoot a stranger intruding into my home who would otherwise do great bodily harm to me or my family" seems too far fetched to be the basis for keeping a loaded Glock 17 in the bedside table with a wife and kids also in the house. But, it is a free country and young Profs from Russia can do strange things. Hopefully when my daughter goes off to law school at UCLA (potentially) when will not be taught to keep a Glock 17 loaded in the bedside table. If legal, then just imprudent, in my view, especially with mood disorders affecting so many these days.
5.9.2007 9:32pm
Rick Shmatz (mail):
Maybe he is just tired.
5.9.2007 9:33pm
Vinnie (mail):
"Since Obama is not familiar with firearms, it is perfectly possible that he does not know exactly how broad the term "semi-automatic" is."

AND? If he doesn't know he is spouting an uninformed opinion and he should have had better advisers. Not what I look for in a president.
5.9.2007 9:34pm
Viscus (mail) (www):
Vinnie,

This isn't a speech, this is a check mark on a form that does not allow you to give more precise answers.

The point is, we don't really know what Obama's position is. If you want to say he should have better advisors, fine. But I don't think that is really the issue. The issue is: What is Obama's position on guns?
5.9.2007 9:45pm
Dave Hardy (mail) (www):
Those who keep an arsenal with ammo at home, absent specific threats are, in my view, compensating for sense of inadequacy or seriously underestimating threat of unfortunate incidents (suicides, accidents, domestic shootings).

That would be excellent advice for those who do not know firearms safety, or fear they may kill themselves or their spouse. I would suggest that such folks confine their knife purchases to dull kitchen knives if they consider themselves at risk for the latter two categories.
5.9.2007 9:57pm
Andy Freeman (mail):
> Since Obama is not familiar with firearms, it is perfectly possible that he does not know exactly how broad the term "semi-automatic" is.

Since when is relevant knowledge a requirement for passing legislation?

And, it's perfectly possible that he knows exactly what he's saying.

He expressed a position. If it's one that he'd change upon further reflection, let him do so.
5.9.2007 9:58pm
Stamboulieh (mail):
C.F.W.,

I write this sitting on my couch, watching tv, with a holstered Glock 27 (and a Glock 17 nearby... Beautiful gun, eh EV?) on my couch next to my remote.

"Those who keep an arsenal with ammo at home, absent specific threats are, in my view, compensating for sense of inadequacy or seriously underestimating threat of unfortunate incidents (suicides, accidents, domestic shootings)"

I can assure you I'm not compensating for anything, and by being armed as often as I can legally be armed, I am not underestimating anything. I take everything into account when I make a decision. I plan to keep my family safe.
5.9.2007 10:02pm
loki13 (mail):
The debate about guns hass always seemed irrational on both sides, and, quite frankly, should be solved through federalism and reliance on local governments.

People who live in certain environments (New York City, Brookline, Cambridge, for example) have certain conceptions and needs that are best met by restrictive gun laws.

OTOH, I can understand why someone living in Montana would most certainly want their shotgun handy.

I've never understood the 'freedom from government tyranny' angle (on an intellectual level, sure, but the government has long passed the point of King George's troops), but I can understand why different localities have varying needs for different gun laws.

Ignoring the legal history (if only) I would hold an individual rights interpretation for the 2d, but *not* have it incorporated (despite the persuasive research by Prof. Amar re: Reconstruction).
5.9.2007 10:03pm
Viscus (mail) (www):

Since when is relevant knowledge a requirement for passing legislation?


If legislation is on the table, sometimes politicians will delve into the specifics more and educate themselves. Is this a requirement? I suppose not. One could vote for a bill without any knowledge. But to the extent that they do this, who cares what their positions are anyway. Right? =)


And, it's perfectly possible that he knows exactly what he's saying.


And it is perfectly possible, and likely, that he does not. Many people who don't know about guns get confused by the term "semi-automatic." If you don't believe me, why don't you ask some people who don't know about guns what they think of "semi-automatic" weapons. The term sounds scary -- most people do not realize that most guns are in fact semi-automatic.


He expressed a position. If it's one that he'd change upon further reflection, let him do so.


It is in fact unclear whether the check mark here should be interpreted as a "position" or not. Further, your use of the phrase "further reflection" assumes there has been any reflection at all, as opposed to ignorance concerning the meaning the term "semi-automatic."

That said, I agree that it would be nice if Obama clarified his position on this issue. We don't know what it is.
5.9.2007 10:04pm
Ak:
"That said, I agree that it would be nice if Obama clarified his position on this issue. We don't know what it is."

Sure we do. He checked the box saying he supports a ban on semiautomatic weapons. Semiautomatic is not a highly technical term; I'm no gun nut and I know what it means. It's possible that he doesn't know what it means and will change his answer (although I think you're doing him a disservice - I find it hard to believe most politicians haven't had certain elements of the gun debate pounded into them), but for now the presumption is that he did, in fact, mean what he said.
5.9.2007 10:08pm
Viscus (mail) (www):

I've never understood the 'freedom from government tyranny' angle (on an intellectual level, sure, but the government has long passed the point of King George's troops), but I can understand why different localities have varying needs for different gun laws.


If the Iraq war shows anything, even the U.S. military, as advanced and sophisticated as it is, would have great difficulty containing an insurgency (especially since one would imagine their would be quite a few defections from within the ranks of the military). I do not think that gun rights are completely impractical as a means of reigning in government if their was a coup or other extreme event which overturned democracy. On the other hand, the probability that we would ever be reduced to fighting our own government if it stepped away from democracy is practically nil.

More realistically, gun rights are useful against criminals. Gun control in NYC or Boston kind of sucks if you are on a mob hitlist. =)

Bu
5.9.2007 10:09pm
loki13 (mail):
Viscus,

For places like Boston and NYC, it comes down to a cost/benefit ratio. In densely populated urban areas, voters should be allowed to make the choice that the costs associated with certain types of gun ownership (automatic, semi-, handgun, concealed permit etc.) outweigh the benefits. In short, the demos has determined that the costs of crime, suicide, and medical associated with guns outweigh the benefits of self-defense, and that if you are the unfortunate on the mob hitlist, you will have to seek government protection.

This may be unsatisfying to many people out there, but it's how democracy usually works.

OTOH, I also have no problem with the people determinig that there is a right to concealed permits and automatic-fire weaponry, if that is appropriate for the locale.

I firmly believe that the Federal government shouldn't regulate such matters, but leave it to the internal mechanisms of the state (and this is from a pro-Wickard guy).
5.9.2007 10:19pm
Viscus (mail) (www):
loki13,

As a liberal who thinks you can't just read the Second Amendment out of the constitution, I don't agree with you. If a city banned all guns, what exactly would be the meaning of the Second Amendment in that city? If the Second Amendment is interpreted as protecting the rights of the national guard, doesn't that render is meaningless? Are you saying that unlike practically the rest of the Bill of Rights, that the Second Amendment isn't going to be incorporated against the states?? I am not comfortable with that position.

Constituttional rights are not determined by simple cost/benefit ratios. (Where, by the way, costs and benefits are extremely difficult to assess.)

I respect your position, but I disagree with it. Further, if you ask me, Democrats are hurt very badly by the gun issue. I think we should stop losing elections on this issue and focus on the rest of our agenda. That said, limited measures to control the damages caused by guns should of course be on the table. But total bans are a bad idea and unconstitutional to boot.
5.9.2007 10:28pm
loki13 (mail):
V-

As referenced in my first post, I believe the 2d Amedment should apply to the Federal Govt, and not be incorporated (we have selective incorporation). This is a normative position, as opposed to a reasoned position- I think that the 14th was meant to incorporate the entirety of the BoR (other than the 9th and 10th) through PorI, but since we have selective incorporation, that's my normative view.

Anyway, if the 2d is not incorporated, states and localities would be free to regulate. Even if it was incorporated, we would need a judicial framework to analyze firearms restrictions (similar to time/place/manner for the 1st... would there be an ample alternatives... like gun ranges in a city that otherwise banned... who knows?)

As for Democrats being hurt by the issue- I agree. People who are pro-gun are often single-issue voters; people who favor gun restrictions rarely are. Being pro-gun control *does* hurt badly in national elections, as it can turn off potential voters without attracting anyone. On the local level, however, while that trend exists, I believe it is less determinative.

Again- Rural Montana and Urban Boston are very different. Gun issues are best left to the people of the states who can determine their own needs, as opposed to a 'one size fits all' mandate from Congress.
5.9.2007 10:37pm
c.f.w. (mail):
Gun proponents sitting around with weapons, but not compensating for anything, never seem to be women.

At any rate, the country has say 50 million hand guns. Banning them does nothing helpful, without a buy back, which ain't going to happen any time soon. So Dems at the federal level are well advised, in my view, to say let the locals decide on reasonable regulations (safety devices, etc.).

Those who need weapons to make themselves feel whole, like Reynolds, are folks the US is just going to need to live with for at least 50 years or so (reasonable life of handgun).
5.9.2007 10:59pm
Vinnie (mail):
"For places like Boston and NYC, it comes down to a cost/benefit ratio. In densely populated urban areas, voters should be allowed to make the choice that the costs associated with certain types of gun ownership (automatic, semi-, handgun, concealed permit etc.) outweigh the benefits. In short, the demos has determined that the costs of crime, suicide, and medical associated with guns outweigh the benefits of self-defense, and that if you are the unfortunate on the mob hitlist, you will have to seek government protection."


I live in a republican state. It will always be republican. If jesus showed up on the democratic ticket he would not stand a chance. What if we did a cost benefit analysis of free speech in my state? What other rights go under this microscope? Compelling people to testify against themselves would save millions of dollars and probably a quite a few lives.

"I've never understood the 'freedom from government tyranny' angle (on an intellectual level, sure, but the government has long passed the point of King George's troops"

They don't teach history in law school? Ever hear of
The Battle of Athens, Tennessee?
5.9.2007 11:03pm
Clayton E. Cramer (mail) (www):

Statistics on suicides, accidents and domestic shootings are too sobering. Those who keep an arsenal with ammo at home, absent specific threats are, in my view, compensating for sense of inadequacy or seriously underestimating threat of unfortunate incidents (suicides, accidents, domestic shootings).
In short, there's so little crime that gun ownership is irrational. Yet crime is the argument in favor of gun control. Something's wrong with this picture.

I've lost count of the number of people that my wife and I have known over the years who have been victims of forced entry, rape, murder, and mayhem--and often with non-guns, such as the kid by wife went to high school with who was beaten to death with a roofing hammer by burglars. A cousin of my wife, after the charming gentlemen finished raping her, stuffed a broken bottle inside her vagina.

Live in your little fantasy world, but don't force the rest of us to live in it. The real world of California was way too violent.
5.9.2007 11:05pm
Clayton E. Cramer (mail) (www):

People who live in certain environments (New York City, Brookline, Cambridge, for example) have certain conceptions and needs that are best met by restrictive gun laws.

OTOH, I can understand why someone living in Montana would most certainly want their shotgun handy.
Except those of us that live in places with effectively no gun control seldom have a need for a gun. Those of you who live in places with very strict gun control, for odd reasons, occasionally need a gun.

I won't claim that gun control laws make crime rates worse. But it does seem that gun control is the preferred liberal alternative to actually solving the crime problem. That it doesn't work for that purpose never seems to matter.
5.9.2007 11:08pm
Guest85 (mail):
c.f.w.,

Your slurs about masculinity aren't adding much to the conversation. I'd appreciate if you can express your position in a way that doesn't attempt to demoralize an opposing viewpoint, rather than present a related argument.

Has Obama never faced a direct question about the gun issue during an interview? How can that be so far in the game?
5.9.2007 11:16pm
loki13 (mail):
Vinnie,

Did you read my post? If it is a Constitutional right that is not incorporated, it binds the Federal Government, not local Governments. cf. the 7th (right to jury in civil trial), the 5th (grand juries), 8th (excessive bail), perhaps the 3d (not the state has been quartering troops in your linen closet).

If you feel that it is a right, have it protected in your State Constitution, as many do.

As for the Battle of Athens... wow... look, the reason why insurgents are doing oh so well in Iraq is that our military is at least partly constrained by the essential character of our Democracy and human rights. Should we ever have a dictatorship, I don't think our pistols and handguns and semi-automatic weapons will do much good against a well-trained military unencumbered by such niceties, who are truly able to decimate (in the technical sense of the term) the local population. As I mentioned, I understand the concept intellectually, I just believe that the rule of law and civilian control of the military have proven more effective for the preservation of our democracy than the 2d Amendment.
5.9.2007 11:20pm
juris_imprudent (mail):
That would be excellent advice for those who do not know firearms safety, or fear they may kill themselves or their spouse. I would suggest that such folks confine their knife purchases to dull kitchen knives if they consider themselves at risk for the latter two categories.

Not to mention gasoline and matches.

Perhaps the state could arrange to have someone drop by the house on a daily basis to ensure the proper meds are taken as well.
5.9.2007 11:22pm
Clayton E. Cramer (mail) (www):

The "I plan to shoot a stranger intruding into my home who would otherwise do great bodily harm to me or my family" seems too far fetched to be the basis for keeping a loaded Glock 17 in the bedside table with a wife and kids also in the house.
Let's see. Kevin and Debbie were a couple I knew who lived in Culver City. One night, three guys smashed through their front screen door, beat Kevin to a pulp, tied him up, and forced him to watch as they took turns raping Debbie. When they were done, they took everything they had--including things of no economic value, such as wedding pictures. Their marriage survived, but barely.

Six months later, Kevin found out that LAPD hadn't bothered to run the fingerprints that they had taken against the FBI's files. It wasn't an important enough crime.

A couple of years later, there was another couple I knew who lived not far from Kevin and Debbie, named Guy and Roberta. Guy and Roberta woke up to find three guys standing over them. They had knives out, and demanded money. Guy went with two of them to another room to find something of value, in the hopes that they would leave. At this point, the one left in the bedroom tried to rape Roberta, and she screamed. Guy fought back, and was stabbed seven times. What probably saved his life was that one of the thugs pulled out a gun, and Guy stopped fighting. Guy spent several weeks in the hospital, running up a $30,000 hospital bill (no insurance). Guy and Roberta now own shotguns, for some reason.

My wife went to high school with a young man who came home after school. Inside, he found that his 12 year old sister had already gotten home. The two burglars had raped and strangled her. He put up a fight, and they beat him to death with a roofing hammer. Yes, it was a closed casket. There are limits to what can be done with that kind of damage.

Even in Idaho, there are occasionally break-ins. When I was living in Boise, my neighbor became aware that someone had forced entry into the house, and was in his daughter's room. By the time he had his rifle out and loaded (big mistake), the intruder was headed down the stairs.

How often do Americans engage in gun self-defense against intruders? Over at Civilian Gun Self-Defense blog, we record every news item that we can find. This link will take you to 587 home invasion news stories where someone inside used a gun in self-defense. Here are 285 residential burglary incidents (the bad guy apparently didn't know that there was someone home).

Live in your fantasy if you want, but that's what it is.
5.9.2007 11:24pm
juris_imprudent (mail):
In densely populated urban areas, voters should be allowed to make the choice that the costs associated with certain types of gun ownership (automatic, semi-, handgun, concealed permit etc.) outweigh the benefits.

Should they also be allowed to make choices about what kind of neighbors are permitted to buy in their neighborhoods? How about what church everyone attends? Or who they are allowed to bring into their bedroom?

After all, that is the way democracy works, no?
5.9.2007 11:26pm
loki13 (mail):
Clayton,

I don't necessarily disagree with you. If I was dictator of the world, there are many laws that have been passed that I would change. A lot of laws have made my life more inconvenient, and sometimes more dangerous.

But that's a democracy. I believe we have certain fundamental civil liberties that cannot be infringed upon. I don't feel gun ownership is one of them (at the State level). I just don't feel strongly about it one way or the other- I don't own a gun, but my father was an avid hunter and I grew up with guns in my house, so I see both sides of the issue.

I don't believe the Federal Government should pass laws regarding gun ownership. If you want gun ownership enshrined as a fundamental right, either have it placed in your State Constitution...

...or have a Constitutional Amendment that applies the 2d (this time without that whole 'militia stuff' so we don't confuse future generations) to the States.
5.9.2007 11:28pm
Clayton E. Cramer (mail) (www):

I don't necessarily disagree with you. If I was dictator of the world, there are many laws that have been passed that I would change. A lot of laws have made my life more inconvenient, and sometimes more dangerous.

But that's a democracy. I believe we have certain fundamental civil liberties that cannot be infringed upon. I don't feel gun ownership is one of them (at the State level). I just don't feel strongly about it one way or the other- I don't own a gun, but my father was an avid hunter and I grew up with guns in my house, so I see both sides of the issue.
So you agree that states have the authority to prohibit abortion? Democracy, and all that.

Fascinating: a right that is explicitly there, "the right of the people to keep and bear arms" isn't a fundamental civil liberty, but abortion and homosexuality (both of which were criminal matters in 1789 and 1868) are fundamental civil liberties. This is why I can't take liberals seriously--their amazing ability to ignore rights that are explicit, and find rights that are, at best, implied.
5.9.2007 11:34pm
loki13 (mail):
Should they also be allowed to make choices about what kind of neighbors are permitted to buy in their neighborhoods

We do that. They're called restrictive covenants and equitable servitudes. As long as they don't violate Equal Protection (you may have heard of that case), they're perfectly fine. Another way to do that is to only offer houses at a certain price point in your neighborhood, which discrimnates bassed on wealth (not covered by EP).


How about what church everyone attends?

Nope. Can't do that. 1st applies to the States (no matter what J. Thomas would have you believe), so the people of a state can't vote to force you to attend a church.


Or who they are allowed to bring into their bedroom?

Marriage has been read to be a liberty right (bringing someone to the bedroom) and States are allowed to have reasonable regulations regarding marriage (syphillis tests, for example).

Those are all pretty silly examples. I could as easily say, "Can you be forced to wear a seatbelt while driving?" The legal analysis should be:
1. Does the 2d Amendment protect an individual or a collective right?
-I believe it protects an individual right.
2. Is the 2d Amendment incorporated?
-I believe it shouldn't be, which means it would not apply to the States.
3. If it is incorporated, what then?
-A judicial framework would have to be built to analyze restrictions on gun ownership, probably starting with allowing everything that was allowed during the passage of the 14th (incorporation time) and then any 'new' devices would be subject to a test that weighs the government interest with the burden it creates, with the end result being some convulted system similar to the 1st time/place/manner test (narrowly tailored, ample alternatives, content based/neutral et al).
5.9.2007 11:41pm
juris_imprudent (mail):
loki

Could I have a copy of the constitution from your universe? The one where democracy is paramount (except when you decide that it isn't).
5.9.2007 11:44pm
loki13 (mail):
Clayton,

1. I did not air my views on abortion. You assume too much.
2. Again (for the umpteenth time) I am not ignoring the text. It applies to the *Federal Government*. It is in the *Federal* Constitution. It does not explicitly apply to the States, and since we have selective incorporation, I do not believe it should be.

If we ever re-do our jurisprudence in the area, and overrule Cruikshank and Slaughterhouse and go to the original PorI and complete incorporation, then the 2d would certainly apply tp the States. But I don't think most conservatives would like to open that can of worms.
5.9.2007 11:45pm
juris_imprudent (mail):
It does not explicitly apply to the States, and since we have selective incorporation, I do not believe it should be.

OK, tell me what "supreme law of the land" means, even absent the 14th Amdt, and how that wouldn't be binding on the states.
5.9.2007 11:46pm
Nellie:
One problem with the notion that different geographical areas should make and enforce their own local firearms laws is that many people do not spend all their time in one place. But you are restricted, by federal law, to purchasing a handgun in your place of legal residence.

If your legal residence is in a city or state that outlaws handguns, you have no legal means by which to purchase a sporting or defensive pistol to use in the rural area where you have a vacation home. You have no legal mean to acquire a sporting pistol appropriate for whatever shooting discipline you prefer if that firearm is illegal where you maintain your legal residence -- even if you never intend to tranport it to that city or state. Right now, for example, Massachusetts residents who would like to participate in cowboy action shooting cannot, because single action revolvers are illegal in Massachusetts. They cannot purchase one in New Hampshire and store it securely at a gun club there. Maryland residents are severely restricted in the pistols they can purchase, again, even if they can arrange for secure storage in Virginia. New Jersey residents will be in the same situation when the "smart gun" law goes into effect; they cannot purchase and store sporting pistols in Pennsylvania.

I cannot figure out how this situation is constitutional (but I'm not a lawyer) because the federal law that restricts handgun purchases to your state of legal residence has the effect of allowing the legislature of one state to enact laws that affect their residents' actions when they are out of state and can have no conceivable effect on the state that enacted the ban.
5.9.2007 11:56pm
loki13 (mail):
juris-

You're kidding, right? Supremacy has nothing to do with incorporation.

The Bill of Rights originally didn't apply to the states. (Barron v. Baltimore etc.) Why? We trusted the States, not the Federal Government.

The 14th Amendment was passed to incorporate the BoR during Reconstruction. (You will get a debate over this- the Supreme Court explicitly held it did not do so through PorI, and some commenters believe it wasn't supposed to... but they're wrong *grin*)

Some Justices (J. Black) believed in total incorporation (Amendments 1-8 would all be applied to the States), but the view that prevailed was selective incorporation. As it stands, the following Amedments have not been incorporated (held to apply to the States) in whole or in part:
2d (not viewed in incorporation context that I know of)
3d (never came up)
5th (partly incorporated)
7th
8th (partly incorporated)

Does this clear things up for you?
5.10.2007 12:00am
Rick Wilcox (www):
loki, can you give reasoning for why you don't think the 2nd Amendment isn't or shouldn't be incorporated? So far you're making this lovely argument of "The 1st is incorporated, but the 2nd isn't" which seems to be nothing more than the way you'd like things to be.

I'd like to know how Restrictive Covenants and Equitable Servitude determine "what kind of neighbors are permitted to buy" into neighborhoods. And the idea of "discrimnat[ing] based on wealth" is laughably disingenuous.
5.10.2007 12:12am
Rick Wilcox (www):
Addendum to my previous post:
I see you posted your reasoning while I was typing my post. I'll let others deal with the questions therein.
5.10.2007 12:13am
Clayton E. Cramer (mail) (www):

2. Again (for the umpteenth time) I am not ignoring the text. It applies to the *Federal Government*. It is in the *Federal* Constitution. It does not explicitly apply to the States, and since we have selective incorporation, I do not believe it should be.

If we ever re-do our jurisprudence in the area, and overrule Cruikshank and Slaughterhouse and go to the original PorI and complete incorporation, then the 2d would certainly apply tp the States. But I don't think most conservatives would like to open that can of worms.
Actually, I would love to do so, primarily because that was what both opponents and proponents of the 14th Amendment understood it to mean. I'll take my chances with the Bill of Rights consistently applying to the States. The alternative is the current "selective incorporation" scheme which has no rhyme or reason to it. It was basically whatever a majority of the Court felt were rights that they wanted to apply to the states, and there is no real theory for why some clauses apply and some do not.
5.10.2007 12:22am
juris_imprudent (mail):
We trusted the States, not the Federal Government.

Madison didn't. And it wasn't really a matter of trusting one over the other (although I suppose the Anti-Federalists felt the way you do) - it was a matter of what the federal govt was empowered to do (in the Constitution proper) and what was left to the states. If in fact the Constitution and Bill of Rights were not the supreme law of the land, how can ANY amendment make such a claim? The 14th Amdt was about dealing with states that were reluctant to re-construct. [And were in fact able to subvert the 14th for quite a while - Jim Crow ring any bells?]

Does this clear things up for you?

Yes, you really don't have any principles, and you just accept whatever the status quo is.
5.10.2007 12:23am
Clayton E. Cramer (mail) (www):

Some Justices (J. Black) believed in total incorporation (Amendments 1-8 would all be applied to the States), but the view that prevailed was selective incorporation. As it stands, the following Amedments have not been incorporated (held to apply to the States) in whole or in part:
2d (not viewed in incorporation context that I know of)
3d (never came up)
Actually the 3rd Amendment has been found to apply to the states, in a bizarre, completely inappropriate use involving National Guardsmen who were brought in to replace prison guards in New York in the early 1980s, and were given the prison guards' residences at the prison.

You should be aware that a number of state supreme courts have found that the Second Amendment applies to the states. Some, such as Georgia and Louisiana may have done so without much thought because they had no state constitutional provision. Others, such as Idaho, Montana, and Texas found that the Second Amendment as well as the state provision applied to the state. You may find my book For the Defense of Themselves and the State (Praeger Press, 1994) educational on this count.
5.10.2007 12:26am
lyarbrou (mail):
C.F.W.,

"Those who need weapons to make themselves feel whole, like Reynolds, are folks the US is just going to need to live with for at least 50 years or so (reasonable life of handgun)."

Your post indicates clearly you don't like guns (and probably gun owners) very much. However, your assumption that guns can't be stored safely if a home has children is clearly false. I have guns, a gun safe and a pistol safe by my bed. I have found the Inprint pistol safe to be well designed and to work perfectly. It is based on fingerprint identification and the gun can be made available within 1-2 seconds. It can also be programmed for more than one user.

http://gunsafestore.com/inprint.htm

The only fault I can find with professor Volokh is that he should consider using a bit more gun. I suggest the 0.40 caliber Glock 23 for the home and the 0.40 caliber Glock 27 for concealed carry with Hornady TAP 155 grain hollow-point ammo. I have used Hornady ammo for hunting purposes and have found it to perform perfectly. I assume their personal defense ammo will perform in a similar manner in the unlikely event that its use is required.


lyarbrou
5.10.2007 12:26am
loki13 (mail):
Rick,

You can discrimnate based on wealth (not a discrete and insular minority). Restrictive convenants and equitable servitudes (same thing, in many ways, but legally different).. think of them in terms of a condo assn. You can have a RC on your property that requires you to never have a basketball hoop. That's fine. You could also have a RC on your property that requires you to sell only to people with a net worth of $1 million or more. That's also fine (and would determine what kind of neighbors move in).

If you have a RC that prohibits you from selling to black people, as was common in the South, however, it is not judicially enforceable, so you would be able to sell it to a black buyer despite the RC.

So, uh, how about that Obama? Getting back on topic, I think if it was just a checklist, I'd at least give him the chance to articulate his position. Then again, gun ownership is not even on my radar for important issues in the Presidential election... so I wonder if he just put down the 'standard' Democratic response. Does he have a position paper on gun rights?
5.10.2007 12:26am
Clayton E. Cramer (mail) (www):


We trusted the States, not the Federal Government.



Madison didn't.
As much as I would have preferred that Congress follow Madison's lead, it is clear that the First Congress saw the Bill of Rights as limiting only the federal government. When the 14th Amendment was passed, Congress understood the privileges and immunities clause to impose the first eight amendments on the states.
5.10.2007 12:28am
PubliusFL:
"Should we ever have a dictatorship, I don't think our pistols and handguns and semi-automatic weapons will do much good against a well-trained military unencumbered by such niceties, who are truly able to decimate (in the technical sense of the term) the local population."

You don't normally go from rights-respecting democracies to military dictatorships willing to decimate their own population overnight. Private weapons ownership is most useful in the in-between stages.
5.10.2007 12:36am
juris_imprudent (mail):
...it is clear that the First Congress saw the Bill of Rights as limiting only the federal government.

Funny though that passage of the Fugitive Slave Act (of 1793) was considered binding. Oh, and those early Congresses passed the Alien and Sedition Acts too - apparently they didn't think the 1st was actually binding on them, let alone the states.

Admittedly, it is my opinion that the supremacy clause meant what it said, just as the commerce clause [did/]does. So much for my opinion.
5.10.2007 12:37am
gattsuru (mail) (www):
it is clear that the First Congress saw the Bill of Rights as limiting only the federal government.


I've always wondered about that. Yes, they ignored the limitations from the Bill of Rights (for the Federal government as well as the State), but that's the very reason they came up with the thing in the first place.
Given the text of the 10th amendment -- that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people" -- there are potential readings that would have caused incorporation on its own. The powers not delegated to the United States by the Constitution, nor prohibited by the it [the Constitution] to the States...

It's not actually read as such, and I'm sure there's a good grammatical reason such is the case, but it still seems strange to me.
5.10.2007 12:39am
gattsuru (mail) (www):
"Should we ever have a dictatorship, I don't think our pistols and handguns and semi-automatic weapons will do much good against a well-trained military unencumbered by such niceties, who are truly able to decimate (in the technical sense of the term) the local population."


A single sniper rifle would have been remarkably effective in preventing Hitler's rise to power, or stopping his events once they began.
5.10.2007 12:40am
loki13 (mail):
Clayton,

We do agree on this, then- the jurisprudence surrounding the 14th should be revisited, and there would be total incorporation. In that case, I would be for the application of the 2d Am. on the States, in an individual rights capacity (I do try to be consistent). I am surprised at your agreement on this- the 13th &14th, in addition to incorporation, empowered the Federal Govt. to do many other things (hence Cruikshank) that are contrary to pricnciples of Federalism.

As for the 3d-- wow. I tried to do a survey of modern 3d amendment jurisprudence. Sparse pickings. I found an article trying to apply it to the Endangered Species Act (I hope they were joking... but I don't think they were). All my sources indicate that it was unincorporated by the S. Ct. and had not been addressed (why the 3d? I'm strange that way)

As for the State Supreme Courts- that is interesting, and I did not know it, but it has little or no bearing on the incorporation. Until the S. Ct. resolves the split in circuits (esp. between the 5th and 9th), the 2d remains unincorporated. I do plan on looking up your research, as it is new to me.

Note to juris-
Supremacy is for enumerated powers. Within its sphere, the Federal Govt. is supreme. The BoR was a limiting device for the Federal Govt., not the States, because when the Constitution was ratified, the fear was that the FG would trample civil liberties (feal of centralized power), not the trustworthy states. The Civil War changed that. I am glad it did.

As for the States subverting the 14th- I respectfully disagree. The 13th &14th as implemented by the FG was incredibly successful until Cruikshank (S. Ct.) gutted them. Once the S. Ct. interpreted the 13th and 14th to meaninglessness in Slaughterhouse, Cruikshank, &Plessy, there was no enumerated power by which the FG could enforce Reconstruction (and the activist court at the time was knocking down a great deal of other Congressional legislation as exceeding the Commerce clause).
5.10.2007 12:42am
Vinnie (mail):
Again (for the umpteenth time) I am not ignoring the text. It applies to the *Federal Government*.

Ok, I am a recovering redneck so please 'splaine why the first amendment says:"congress shall make no laws" and the second uses the words "shall not be infringed"?
anybody?
5.10.2007 12:42am
loki13 (mail):

Oh, and those early Congresses passed the Alien and Sedition Acts too - apparently they didn't think the 1st was actually binding on them, let alone the states.


Who was President when the A&S was passed?
Adams.
What part was he?
Federalist.
And the judiciary was stocked with?
Federalists.

In a historical context, the Federalist Congress (1st check for Constitutionality) passed the A&S Act that was signed by the Federalist President (2d Check for Constitutionality) so that Republican/Democrats could be prosecuted by the Federalist judiciary (3d Check for Constitutionality). While there was a lot of grumbling about the act's Constitutionality (the Va. and Ky. legislatures passed resolutions calling the A&S acts 'unconstitutional'), this was prior to any Act of Congress ever being ruled unconstitutional.... and with the judiciary stacked, it wasn't going to happen.

I thought this was supposed to be about Guns, not ConLaw 101?
5.10.2007 12:50am
loki13 (mail):
Vinnie,


The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
(part edited out)
But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.


That's Marshall in Barron. Can't make it any more clear than that. Until the 14th, the BoR did not apply to the States. Today, only some of the BoR apply to the States. The 2d has not been incorporated by the S. Ct. Clayton (and others) would like it to be incorporated. I would only have it incorporated if it was part of total incorporation (all of the BoR is incorporated).
5.10.2007 1:01am
Bee:
I hate to be a doomsday party-pooper, but I highly doubt an Obama presidency would waste any energy on enacting a total ban. EV forgets that a presidential run 'tis the season to drop politically unviable position (see Romney re: abortion), and there's no doubt that a total gun ban would energize the conservative base far more than any Democratic one. Gun control simply is not an animating issue for Obama and his supporters (hence the difficulty finding much material on it), and barring better evidence this is a fear that outstrips reality.

That being said, I'm curious if EV and others are willing to apply the same standard to people like Gulliani? Or do fellow Republicans get the wink-wink treatment?
5.10.2007 1:05am
therut:
C.F.W. ----------is soooo out of touch.. I am female and guess what I have my loaded Kimber .45 sitting right here on my desk as I type. Before it was here it was on the couch where I was watching T.V. It is soon to be in the bathroom while I shower then off to bed the gun and I go for a peaceful secure time of sleep then tomorrow it will be snug in my designer carry purse while I travel to work. While at work it will be well concealed on my person. Imagine all that taking place in the land of the free and the home of the brave--------including WOMEN.
5.10.2007 1:16am
Mark Field (mail):
juris_imprudent, please take loki's word here. What he's telling you about the original effect of the BoR and incorporation is basic con law doctrine and not particularly controversial.


Ok, I am a recovering redneck so please 'splaine why the first amendment says:"congress shall make no laws" and the second uses the words "shall not be infringed"?
anybody?


I'm not sure what your question is here. The real analogy between the two amendments is between the 2d and that part of the 1st which says "shall not be abridged". These two phrases are clearly weaker than "make no law", and they both leave open the likelihood that courts will apply a balancing test to laws passed regulating speech or guns.

To see how this works for speech, remember that Congress passed the Sedition Act on the theory that it didn't "abridge" existing rights. Lots of other laws similarly pass muster, e.g., laws against fraud or libel.
5.10.2007 1:16am
Sebastian (mail) (www):
c.f.w.:

Gun proponents sitting around with weapons, but not compensating for anything, never seem to be women.

I'll be sure to relay this observation to my girlfriend, who sleeps with a loaded SIG 239 in her nightstand. But I guess she's compensating for something too?
5.10.2007 1:20am
Clayton E. Cramer (mail) (www):

Funny though that passage of the Fugitive Slave Act (of 1793) was considered binding. Oh, and those early Congresses passed the Alien and Sedition Acts too - apparently they didn't think the 1st was actually binding on them, let alone the states.
Fugitive Slave Act was within federal authority. See where Congress is authorized to pass laws for the return of those "bound to service" (which included not only slaves both also apprentices and indentured servants).

The Alien Act was clearly within Congressional authority, and that's not usually in dispute.

The Sedition Act is often given as an example of an unconstitutional statute, but I'm not sure that it was. The Sedition Act prohibited false or defamatory statements about the government or its officers, no different from the criminal libel laws of the time (and that a few states still have and occasionally enforce). What was unconstitutional was not the Sedition Act itself, but that Federalist judges and juries convicted people for statements that were not false.
5.10.2007 1:42am
Vinnie (mail):
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Ok here is my question:"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,"
is an injunction to congress.

"the right of the people to keep and bear arms, shall not be infringed." Is an injunction. Against EVERYBODY? Congress? The author proved that they were capable of sorting congress out from the rest of the rabble but didn't see fit to narrow this. Did they mean the feds? the state? Joe the guy that runs the snack bar? WHO? WHY? I have read some historical documents that confirmed that everybody "shall not infringe"
What does it mean?

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.
5.10.2007 1:44am
Dave Hardy (mail) (www):
As for the 3d-- wow. I tried to do a survey of modern 3d amendment jurisprudence. Sparse pickings.

Well, *I* coauthored two articles on it. There is not an obscure constitutional nit that shall go unpicked, while I live!

The only bill of rights provision that was outmoded by the construction industry. The French invented barracks in the 17th century, but the English were tight on funding and didn't build them in the colonies.

Barracks were quite an advance, if only because if the town was attacked in the middle of the night, the officers didn't have to run around trying to remember which men were at whose house. And in time of peace, didn't have to worry about them raiding their host's liquor supplies, raping his daughter, and deserting. When recruiting practices consisted of raiding the local jails, and swindling the local barflies into enlisting while drunk, there was the problem of quality control. "The Grenadiers: We're Looking For A Few Bad Men."
5.10.2007 2:03am
juris_imprudent (mail):
I admit to holding a somewhat Hamiltonian view of the Bill of Rights. Now, he was wrong that the federal govt would naturally limit itself (since it had not been granted the power to impose itself in those spheres), but he was also right that we would ultimately end up in exactly this kind of argument (plus the esoteric notion of selective incorporation) about what is covered by the BoR and what isn't. Obviously my reading is historical, and not legal.

Congress chose to ignore the 1st Amdt prohibition almost before the ink was dry. And as loki points out, a compliant judiciary (sound familiar) went along. So much for the theory of restraint on the federal govt. It would be a long time indeed before such an action (federal law invalidated by overstepping an enumerated right) prevailed.
5.10.2007 2:10am
JohnS:
c.f.w.

Those who need weapons to make themselves feel whole, like Reynolds, are folks the US is just going to need to live with for at least 50 years or so (reasonable life of handgun).

You should add at least 100 years to that estimate. Many firearms from the Civil War era are entirely safe to use, though their rarity makes them more valuable as historical objects. A firearm made in this century and stored away from dripping water might well remain safely functional for much longer.
5.10.2007 3:23am
K Parker (mail):
c.f.w., that's an amazing rant. Too bad you've bought into the totally bogus "guns are more dangerous to their owners" nonsense, but if you think that self-defense rarely occurs then perhaps you should get out a bit more often (virtually, at least).

Loki13,
People who live in certain environments (New York City, Brookline, Cambridge, for example) have certain conceptions and needs that are best met by restrictive gun laws.
Really? Oh yeah, I forgot--in NYC the police have a positive, legal obligation to protect every citizen, don't they?
5.10.2007 3:32am
Joel Rosenberg (mail) (www):
The notion that the cost-benefit analysis argues in favor of making gun possession illegal in high-density urban areas doesn't seem to be born out by anything except dogma. The problem in urban areas doesn't seem to be with people who, say, have carry permits.

As to the notion that the burglar in the bedroom is so unlikely a possibility that nobody should have a gun handy to protect themselves in that eventuality, that's unpersuasive to, among others, me -- as I've had the burglar in the bedroom, and he was frightened off by my announcement that I was going to go get my gun and kill him. (See http://ellegon.com/features/data/burglary )

It is, of course, unlikely that that will happen to me again; then again, I'm also unlikely to need my seatbelt in an auto accident, again; I'll buckled up, anyway.
5.10.2007 8:46am
Bruce Hayden (mail) (www):
The notion that the cost-benefit analysis argues in favor of making gun possession illegal in high-density urban areas doesn't seem to be born out by anything except dogma. The problem in urban areas doesn't seem to be with people who, say, have carry permits.
I agree with this, and in a post on the next thread, suggest that the reason for this is that the same liberals control both the inner city political machines and support strong gun control (for everyone else, but, of course, not for those running the machines). What is important is not the logic, but the power. This is where they have the power to implement their politics here.
5.10.2007 10:35am
Joel Rosenberg (mail) (www):
Seems likely, which is why those of us who live in big cities dominated by a liberal political machine (say, Minneapolis) are fortunate when there's state-level preemption. I have no doubt that the Minneapolis City Council would love Chicago-style handgun bans; as it is, there's not a damn thing that they can do on the subject.
5.10.2007 12:10pm
Mark Field (mail):

"the right of the people to keep and bear arms, shall not be infringed." Is an injunction. Against EVERYBODY? Congress? The author proved that they were capable of sorting congress out from the rest of the rabble but didn't see fit to narrow this. Did they mean the feds? the state? Joe the guy that runs the snack bar? WHO? WHY? I have read some historical documents that confirmed that everybody "shall not infringe"
What does it mean?


There is good historical evidence that the BoR was originally intended to restrict only the federal government, not the states. The SCOTUS took this view in Barron v. Baltimore (1833). The provisions of the BoR were not enforced against the states before the Civil War (or for some time thereafter).

There is also good historical evidence that the drafters of the 14th A intended it to incorporate the BoR and apply them to the states. The SCOTUS has done this, but only selectively. They've picked and chosen which rights get applied to the states. So far, the Court has never held that the 2d A applies to the states. There is one case (Cruikshank) which said in dicta that it did not. For this reason, there is debate whether (a) the 2d A protects an individual right, and (b) it protects that right against infringement only by the feds or by the states also.
5.10.2007 12:34pm
juris imprudent (mail):
The provisions of the BoR were not enforced against the states before the Civil War (or for some time thereafter).

In fact, prior to the Civil War even the federal govt was not proven constrained by the BoR. Only two Congressional Acts were knocked down by SCOTUS prior to the Civil War: the Judiciary Act in Marbury v. Madison and the Missouri Compromise in Scot v. Sanford, and neither on the basis of a BoR provision. Perhaps Congress didn't feel it possessed the overweening power it does today, or perhaps no one had the resources to pursue a case to such a conclusion, or perhaps the Court was utterly deferential to Congressional perogative. It wouldn't be until 1914 that the BoR actually limited federal action.

A little ironic isn't it, that the BoR should have been tested against state power before federal.
5.10.2007 1:44pm
Clayton E. Cramer (mail) (www):
Mark Field writes:

So far, the Court has never held that the 2d A applies to the states. There is one case (Cruikshank) which said in dicta that it did not.
Cruikshank was a difficult case, because the persons who infringed on the right to keep and bear arms were operating under color of authority, but were not truly a government agency (unless you consider the Klan murdering a bunch of freedmen and then taking away their guns a government agency). The same decision also found that because this dispute involved a non-federal election, that other rights that we now recognized as limitations on the states did not apply, either, such as freedom to peaceably assemble.

There are two other cases where the Supreme Court refused to apply the 2nd Amendment to the states. Presser v. Illinois (1886), upheld an Illinois statute that prohibited an organized armed march by members of a labor union, who had gotten tired of corporate goon squads terrorizing them and their families.

Miller v. Texas (1894) ruled that it did not apply to a Texas statute that was the basis for the attempt to arrest Miller that led to his shooting a cop. Miller's core crime that sent the police after him involved having a black wife. As the Court made clear, the other protections of the Bill of Rights didn't apply to state law, either, and in any case, Miller had failed to raise the issue at trial, so he couldn't raise it on appeal.

What is really funny and sad at the same time is how liberal gun control advocates spent most of the 1970s citing cases that let Klansmen murders off, allowed corporate goons to terrorize labor unionists, and upheld a conviction for murder for someone whose crime that led to a confrontation with police was to love a black woman.
5.10.2007 5:14pm