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"Sensible Restrictions" on Gun Rights:

A reader writes, responding to various calls for "sensible restrictions" on gun rights:

Anyhow, I propose sensible restrictions on the first amendment! Just sensible restrictions, e.g., the NY Times should not be able to publish anti-terrorist methods, like how the DoJ searches financial records to find terrorists. That's a reasonable restriction, isn't it? The NY Times already admitted that if they had to do it over again, they would sit on the story.

Perhaps if someone such as yourself were to (tongue in cheek) make such a proposal, the media morons might be able to see the problem with "sensible restrictions" on gun ownership — they might then wise up to the bill of goods being sold to them by the Brady brunch.

Well, the trouble with this argument is that there are of course already many sensible restrictions on what speakers, including the press, may say and write. As to the mainstream press, consider libel law, false advertising law, and copyright law. As to other speakers, consider incitement law, fighting words law, threats law, child pornography law, and obscenity law. Consider also restrictions on what government employees may say, including to the press, such as laws that make it a felony to leak income tax records, certain kinds of classified materials, and the like. And consider various content-neutral speech restrictions, such as bans on soundtrucks, laws regulating the time, place, and manner of demonstrations, and the like.

What's more, shifting from the descriptive to the prescriptive, some of us may disapprove of some of the restrictions (for instance, I disapprove of obscenity laws), but I expect that nearly all of us would accept some restrictions on speech. A categorical rule that all speech is protected, with no room for at least some sensible restrictions, would be a pretty poor rule.

Now of course one can argue that certain kinds of supposedly "sensible" restrictions aren't very sensible, for instance because they interfere substantially (and therefore unjustifiably, the argument would go) with people's ability to defend themselves, or because they are unlikely to accomplish anything and thus don't justify even modest interference with self-defense. One can also warn against the tendency to equate "sensible" restrictions with "reasonable" restrictions and there with the "rational basis" test, under which nearly any restriction — including a total ban on all guns — would be constitutional. Finally, one can resist attempts to articulate constitutional tests in terms of "sensible" restrictions -- the way First Amendment law has developed, for instance, is through courts evaluating arguments that some restriction is sensible, rejecting some arguments, and creating more precise constitutional rules (such as the tests for punishable incitement, libel, and the like) for those restrictions that courts agree are indeed sensible.

But it doesn't make sense to condemn in principle all calls for "sensible restrictions," on the theory that we wouldn't or shouldn't tolerate "sensible restrictions" on speech or press or other generally constitutionally protected activity. The law does tolerate some such restrictions, which we think particularly important and sensible. The law should tolerate some such restrictions, even if we think those restrictions should be fairly narrow exceptions to the rule of general protection of speech. American law has never taken an absolutist view with regard to speech protection. So the analogy to speech protections — already generally limited given the fact that different kinds of constitutionally protected activity raise different concerns, and analogies between activities can therefore only go so far — strikes me as a poor way to argue in principle against supposedly "sensible restrictions" on gun rights.

And, as readers of this blog know, I say this as someone who supports constitutional protection for gun rights, has written about state constitutional rights to bear arms, has often noted the possibility that even seemingly modest restrictions may lead to broader ones, and has often noted that many gun restrictions are highly unlikely to work. Consider how weak the argument I quoted above would be to those who support gun rights less than I do.

Happyshooter:
There is no reason for anyone not in the government or the military to have, to own, or to use powerful means of broadcasting.

When the consitiution was written only hand presses were used by the media, so all other types should be banned.

Free speech is a collective right in the constitution, so any government agency may ban any speech at any time, as that is the collective will.

It is not a ban, it is a tax. Before making any public statement you must pay a $200 dollar tax and get signed permission from your local police chief.

No free speech ideas formed after 1986 are allowed, under the free speech protection act.

Anyone with more than one opinion must register with the state and be inspected, as anyone with a arsenal of ideas is a danger to their community.
7.18.2007 2:08pm
vinnie (mail):
Free speech laws are not preemptive. I know I cannot falsly shout fire in a crowded theater. But they don't tape your mouth shut on the way in.
It is against the law to commit a crime with a gun, so we put restrictions on my ability to obtain one.
7.18.2007 2:27pm
LM (mail):

Free speech laws are not preemptive.

Really? Try to buy some child pornography.
7.18.2007 2:39pm
LM (mail):
Happyshooter,

Glad to see you took EV's smackdown of tortured analogies to heart.
7.18.2007 2:42pm
Daniel Chapman (mail):
Well it was a smackdown of ONE tortured analogy... happyshooter was just pointing out that what passes for a "reasonable restriction" in the 2d amendment context would be laughable in terms of the First.
7.18.2007 2:46pm
Sebastian (mail) (www):
There's quite a lot of folks out there who say "shall not be infringed" means exactly that. If it were true, it would be the only absolute constitutional right we have. I tend to think gun control is pretty useless as a public safety measure, and I view with skepticism any law that purports to make certain goods contraband, but it's a rather absurd argument to suggest that any law pertaining to arms is automatically unconstitutional on its face.

I do tire of what people who favor gun control try to push as "sensible" and "reasonable", because most if it is neither, and while I've never met a gun law that I think is truly effective at its stated purpose, I wouldn't argue they are all unconstitutional.
7.18.2007 2:49pm
Richard Harrington:
I've always thought that comparisons between the 2nd and 1st Amendments were a bit strained. However, I think comparing them to voting rights works well on a couple of levels - in particular since the same people who favor restricting gun rights tend to be those sensitive to voting rights. Historically techniques like poll taxes, closed/secret processes, and tests were used to prevent voting by African Americans. Those are the same techniques proposed to prevent gun ownership. A perfect example years ago was found in California where it was theoretically possible to get a concealed weapons permit, but no police department had copies of the application.
7.18.2007 2:57pm
vinnie (mail):
" Free speech laws are not preemptive.


Really? Try to buy some child pornography."

But I can buy a camera. Having the equipment to make child porn( I suppose even naked kids, I give mine baths) is not a restricted, and there is no presumption that I am a danger for owning one.
7.18.2007 3:01pm
PersonFromPorlock:
At the risk of making a bore of myself (I've posted something similar before), let me trot out my 'sensible' proposal to control gun violence, which takes the form of a letter to the editor that no editor has ever been willing to publish:


To the Editor:

A practical, commonsense way of reducing gun violence -- especially against schoolchildren -- would be a federal law prohibiting, or at least seriously limiting, the interstate reporting of sensational gun crimes like Columbine and Virginia Tech for seven days.

Such a law would not affect local coverage, where there is a need for the immediate dissemination of information, but would make the event 'old news' when it was finally reported nationally and therefore unlikely to get the massive publicity that invites further, copycat violence. Even a small reduction in today's intense coverage of such events might, by not stimulating some potential gunman to action, save lives. Surely the responsible media would be willing to wait a week to save a life.

Experience has shown that 'gun' laws are hard to pass, and harder to enforce because of the easy concealability of firearms. Given the concern of the national media with gun violence and the public nature of 'news', passage and enforcement of this law should be virtually automatic.

Because the proposed publication delay would be short and serve a compelling government interest, it will pass Constitutional muster; the Brady law serves admirably as a precedent here. While the pornographers of violence and their cynical corporate sponsors will raise a smokescreen of First Amendment 'concerns' to protect their profits, the simple fact is that it is as wrong -- and as wrongful -- to hold that the Press Clause protects a media 'right' to lethally endanger the public as it would be to hold that the Religion Clause protects human sacrifice.

I solicit your endorsement of this proposal.

Sincerely, etc.


Needless to say, "Sincerely" somewhat overstates the case.
7.18.2007 3:14pm
Steve2:
Sebastian,
I'm not sure how much mileage can actually come out of saying "shall not be infringed" means no limitations whatsoever without a good understanding of what isn't to be infringed (or limited). In other words, without specifying what "the right to keep and bear arms" entails. Is it the right to keep and bear any number of any kind of weapon, or is it the right to keep and bear exactly two muskets (those are arms, after all). "The plain text only says the right to keep and bear a plural number of weapons, it doesn't say anything about the quality or type of those weapons, and it doesn't say how many you're allowed as long as it's more than one," after all, is a factual statement. So, the government would be not infringing the right to keep and bear arms, but it sure wouldn't make any gun-owners or wanna-be-gun-owners happy. Heck, the government could contract the manufacture of the aforementioned muskets and issue two of them to every citizen, ensuring everyone's ability to exercise their right to keep and bear two firearms, but it wouldn't make anybody happy.

Basically, I think effort to explain why "the right to keep and bear arms" means something more than "the right to keep and bear two, but no more than two, muzzle-loading smoothbore muskets" is going to be more effective than any amount of effort to explain why "shall not be infringed" means "no restrictions whatsoever", since "no restrictions whatsoever" can't kick in until you've demonstrated the unstated assumption of "right to keep and bear any number of any type of firearm in any condition."

Daniel Chapman,
Doesn't it make sense for the regulation of one Amendment's rights to be laughable in the context of another Amendment's rights? I mean, I'd laugh at someone if they tried to tell me that exercising one Amendment's rights always takes the same form as exercising another Amendment's rights ("I plead the 13"? Ha!). Unless the form and nature of the rights and their exercise are similar, I don't think it makes sense to say any regulation on those rights should be similar.

And, as always, while the noun it modifies is "militia" rather than "right" (unless 1780s syntax was weirder than I think it is and the modern text would be "Because a militia is necessary to the security of a free state, the well-regulated right to keep and bear arms shall not be infringed"), I wonder what impact the "well-regulated" in the text has.
7.18.2007 3:14pm
uh clem (mail):
I tend to think gun control is pretty useless as a public safety measure, and I view with skepticism any law that purports to make certain goods contraband...

Really?

So you think regulations on biohazards (e.g. anthrax), radioactive materials, "powerful" weapons like shoulder launched SAMs, etc are pretty useless as a public safety measure?
7.18.2007 3:22pm
Rick Shmatz (mail):
I think there is an better comparison between the Second Amendment and the other Amendments.

I rarely hear the argument that the prohibition against unreasonable searches and seizures, or right to counsel, etc., is not an individual right based on the fact that it's application may prevent some criminals from being convicted. In those rare instances when the argument is brought up, it can be set aside by merely saying "but its a constitutional right", or "the founders already balanced the respective interests."

When arguing about the second amendment, however, those against the individual rights perspective ALWAYS argue consequences. "X amount of children died last year from handguns".

Do you ever hear "1 million convictions were overturned last year because of 4th (or 5th, 6th) Amendment rights"?
7.18.2007 3:25pm
Ian Argent (mail) (www):
"Well-regulated", in this context, does not mean "subject to government regulation". It means, more or less, "accurate and disciplined". A clock that would be said to be "well-regulated" at the time would be one that kept excellent time.

A "well-regulated" militia would be capable of hitting what it aims at, and in good discipline and capable of taking orders.

As for "powerful" weapons, the Constitution (in the main text) contemplates private ownership of heavy weaponry (at least in the context of privateering; look up letters of Marque and Reprisal).

All that said, I'm more or less in favor of limiting unregulated ownership of arms to small-arms; though I don't know how you could define that easily.
7.18.2007 3:37pm
Orielbean (mail):
How about the worthlessness of the term "sensible"? I can't make any sense of it.
7.18.2007 3:39pm
Jeff Dege (mail):
What are "sensible" restrictions on the Right to Keep and Bear Arms?

I look back to the Dissent of the Minority of the Convention, Of the State of Pennsylvania, Dec. 12, 1787:


the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game, and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals;


From my point of view, any sensible restriction must be one applied to a particular individual, through due process, because of the acts or behavior of that particular individual.

Laws forbidding convicted felons from possessing guns? No problem. Laws forbidding guns to individuals found (through due process) to be a risk to themselves and others? No problem. (The problems lie in the application of due process, whether our mental health procedures provide appropriate protections, not in whether it is appropriate to disarm those who have been found to be a risk to society.)

But laws that forbid people from possessing guns, not because of what they have done, but because of what we fear that others might do? I don't see how that can be considered justified in a free society.
7.18.2007 3:44pm
Crunchy Frog:

A "well-regulated" militia would be capable of hitting what it aims at, and in good discipline and capable of taking orders.


Ted Nugent once famously stated, "I come from Detroit, where we're not any more violent than anywhere else. We're just better [expletive] shots."
7.18.2007 3:46pm
vinnie (mail):
So you think regulations on biohazards (e.g. anthrax), radioactive materials, "powerful" weapons like shoulder launched SAMs, etc are pretty useless as a public safety measure?

Ever hear of the radioactive boy scout?


http://www.dangerouslaboratories.org/radscout.html
7.18.2007 3:51pm
uh clem (mail):
Ever hear of the radioactive boy scout?

Yes, I read the original Harper's article when it came out half a dozen years ago.

But please, let's not adopt the nihilistic attitude that since laws aren't 100% effective at stopping the targeted behavior that it's useless to have laws at all.
7.18.2007 4:11pm
Dilan Esper (mail) (www):
"' Free speech laws are not preemptive.


"Really? Try to buy some child pornography.'

"But I can buy a camera. Having the equipment to make child porn( I suppose even naked kids, I give mine baths) is not a restricted, and there is no presumption that I am a danger for owning one."


True enough, and obviously, there are strict limits on prior restraints, but at the same time, if the government had reliable information that you were going to use that camera to create child pornography, do you really think that the government could not go into court and get an injunction?
7.18.2007 4:22pm
vinnie (mail):
"True enough, and obviously, there are strict limits on prior restraints, but at the same time, if the government had reliable information that you were going to use that camera to create child pornography, do you really think that the government could not go into court and get an injunction?"

That is my point. The government doesn't need reliable information of my intent to keep me from owning a gun. In fact I must prove I am worthy by undergoing an NCIS check. There are limits on the type of gun I can buy.
7.18.2007 4:35pm
Steve in CA (mail):
PersonfromPorlock,

I don't think that letter has much impact anymore, since there's no longer any such thing as "local" or "interstate" coverage, what with every newspaper and tv station being on the Internet now.
7.18.2007 4:50pm
Fub:
Steve in CA wrote at 7.18.2007 3:50pm:
I don't think that letter has much impact anymore, since there's no longer any such thing as "local" or "interstate" coverage, what with every newspaper and tv station being on the Internet now.
I think Canada has a longstanding law permitting government to embargo broad coverage of certain public trials or even other newsworthy events. But I think it has been laughingstock among Canadians for years also.
7.18.2007 5:08pm
PersonFromPorlock:

I don't think that letter has much impact anymore, since there's no longer any such thing as "local" or "interstate" coverage, what with every newspaper and tv station being on the Internet now.

Well, obviously, one of the sensible requirements of my sensible plan would be to prevent the media from endangering the public by reckless use of the internet! But that's OK because the media would still be able to provide local coverage through non-internet means. No station in Colorado needs to tell listeners in Florida that something's happened. ;^)
7.18.2007 5:46pm
Matthew Kelley (mail):
"Historically techniques like poll taxes, closed/secret processes, and tests were used to prevent voting by African Americans. Those are the same techniques proposed to prevent gun ownership. A perfect example years ago was found in California where it was theoretically possible to get a concealed weapons permit, but no police department had copies of the application."

This example is more akin to federal drug laws than voting rights. Selling narcotics was completely legal for some years so long as you paid the federal tax on doing so. All you had to do was fill out the requisite forms, which were never even printed.
7.18.2007 6:00pm
Andrew Okun:

A "well-regulated" militia would be capable of hitting what it aims at, and in good discipline and capable of taking orders.


I think this is an artful dodge around the term well-regulated. It is true that a well-regulated watch is one well made to keep time and not one under external control, but the term "well-regulated militia" does not occur in a watch-repair manual, but in a Bill of Rights delineating government powers and refers not to a small piece of machinery but armed forces. The idea that the clause does not mean "we should have an armed populace, but under reasonable control of civil authority" but rather, "we should have an armed populace, but government shall have no right to control it under any circumstances as long as it can effectively kill what it aims at" is a bit silly.

Plus, you say a well-regulated militia is one that, inter alia, is "capable of taking orders." From whom? Whichever way you slice it, a well-regulated militia is going to involve civil authority.
7.18.2007 6:49pm
Andy Freeman (mail):
> "well-regulated militia" does not occur in a watch-repair manual, but in a Bill of Rights

It also appears in other documents written at roughly the same time. The meaning there is "not under external control".

If you want to argue that "well-regulated militia" meant "under govt control" when the Bill of Rights was written, feel free to provide the cites.

Suppose, for the purposes of argument, that the meaning then was "not under govt control". Under what rule of law can we conclude that it now means "under govt control"? Does that rule apply to other phrases or is the 2nd amendment special?
7.18.2007 7:06pm
Sebastian (mail) (www):
So you think regulations on biohazards (e.g. anthrax), radioactive materials, "powerful" weapons like shoulder launched SAMs, etc are pretty useless as a public safety measure?

I said skeptical of such regulations making contraband, not that I was always opposed to it, no matter how absurd the outcome. I recognize there are overwhelming public safety concerns for restricting some items, but they have to be pretty overwhelming. To me, it's only justified when the object a) has no common lawful use b) is inherently dangerous to the community, not just dangerous if misused.

And yes, I do think restrictions on shoulder launched SAMs are mostly useless. If a terrorist wants access to one, it's not that difficult. Africa is littered with them. I think SAMs fall into the category of items that can be restricted, but I also think that any terrorist who wants to get a hold of one will have no problem.
7.18.2007 7:13pm
Sebastian (mail) (www):
Steve2:

Because the language says the right to keep and bear arms. It doesn't say the right to keep and bear a single arm, or two arms. It uses the plural, which would imply you can own as many as you want. Should restrictions on the number of arms people can keep and bear be constitutional? It seems to me no. If the purpose of the clause is to have an armed citizenry, from which a "well-regulated militia" can be drawn, then such a restriction would limit the number of armed men available. I could arm and equip at least three or four other men, who may not have arms themselves. This happened in the revolution as well, so it seems to me that the founders never would have envisioned the second amendment as allowing for that kind of restriction on ownership, and the language doesn't really support it.
7.18.2007 7:20pm
Ian Argent (mail) (www):
I'm not expressing myself as well as I could here. What I was trying to get at is that the meaning of "well-regulated" as understood by the Framers was not the same thing we would understand it to be today. And, in fact, militias could be (and were, from time to time) organized without input from the government. The line between Militia and Vigilante wasn't all that well defined at the time.

Also, the BoR does not "delineate government powers" so much as "limit government powers". It doesn't say what the government can do - it says what the government cannot do. And the 2nd amendment is even more awkwardly worded to permit the government to raise militias that it is to prohibit it from disarming "the people" (a phrase understood everywhere else in the Constitution to refer to individuals as a group).
7.18.2007 7:33pm
Brett Bellmore:
I think you're missing an important point, Andrew: Whatever the heck it means to "well regulate" a militia, the right isn't the militia's, it's the people's. The militia only comes into it as an explaination as to why it's so important that the right not be infringed.

Even if the explaination were total BS, or somehow obsolete, that wouldn't repeal the amendment's mandate, which isn't phrased to be contingent on the government continuing to agree with the sentiment stated in that preface.
7.18.2007 7:33pm
Spartacus (www):
Please folks, all the debate about the meaning of "well regulated," "Militia," "free state," "keep and bear," "arms," "the People," and the amendment as a whole has been well treated in numerous places, among them U.S. v. Emerson, Randy Barnett's excellent article in the Tex. L.R, Eugene's forthcoming article on the meaning of "free state," linked to elsewhere on this blog, as well as the Parker decision itself, among other places. Before debating endlessly the meanings of these terms, study up a little in order to step into the relevant context.
7.18.2007 7:36pm
ATRGeek:
Personally, I think the most useful analogies to firearms are vehicles and drugs. So it might be useful to think about what we would consider sensible regulations with respect to vehicles and drugs, and then apply a similar logic to firearms.
7.18.2007 7:49pm
LM (mail):

" Free speech laws are not preemptive.


Really? Try to buy some child pornography."

But I can buy a camera. Having the equipment to make child porn( I suppose even naked kids, I give mine baths) is not a restricted, and there is no presumption that I am a danger for owning one.

Vinny, you're changing the subject. The response, if your argument were relevant, is that there's no preemptive restriction on buying pig iron, carbon, furnaces, lathes, etc., even though you could forge your own steel and build an M-16.

But that's beside the point. Your original argument was that speech laws are not preemptive, but gun laws are. Gun laws (preemptive and otherwise) generally apply to the thing, i.e., the gun, not to the raw materials for making it. The regulated thing in the speech example is the kiddie porn, which is preemptively regulated, not the raw materials for making it, which obviously are not.
7.18.2007 8:04pm
whit:
"Personally, I think the most useful analogies to firearms are vehicles and drugs. So it might be useful to think about what we would consider sensible regulations with respect to vehicles and drugs, and then apply a similar logic to firearms"

why? neither vehicles, nor a right to drive are mentioned in the constitution

neither drugs, nor the right to use them are mentioned in the constitution

the right to keep and bear arms IS in the constitution

vehicles and drugs can't be analogized to guns anymore than they can be analogized to speech - not very much at all
7.18.2007 8:17pm
Bruce Hayden (mail) (www):
Personally, I think the most useful analogies to firearms are vehicles and drugs. So it might be useful to think about what we would consider sensible regulations with respect to vehicles and drugs, and then apply a similar logic to firearms.
Except that there is no Constitutional right to a vehicle or to take specific drugs. The closest there might be that a vehicle is implicit in the right to travel. But still, that is a stretch, esp. since motorized vehicles were not available when the Bill of Rights was enacted, but guns were.
7.18.2007 8:22pm
KeithK (mail):

Except that there is no Constitutional right to a vehicle or to take specific drugs. The closest there might be that a vehicle is implicit in the right to travel. But still, that is a stretch, esp. since motorized vehicles were not available when the Bill of Rights was enacted, but guns were.


I agree that vehicles aren't a good analogy for guns. But the fact that motorized vehicles weren't available in 1791 is no more relevant than the fact that there were no automatic rifles in the Revolutionary age. There were vehicles (horse and buggy) back then just like there were single shot, smooth bore muskets.
7.18.2007 8:44pm
dwlawson (www):
Here are sensible restrictions on the Second Amendment:

Shall not fire a gun in a crowded theatre.
Shall not commit murder with a gun.
7.18.2007 8:52pm
vinnie (mail):
You cannot buy child porn in part because of the prior criminal act of the child porn being made.

Question: Can you legally buy animated child porn? Written child porn?
I actually don't know. Not my thing.

I do know I can't buy an MP7. (A submachine gun made in 2001 and after)
7.18.2007 8:52pm
Andy Freeman (mail):
> I think the most useful analogies to firearms are vehicles and drugs.

While that's a commonly expressed opinion, it's not clear that it makes any sense.

The problems associated with vehicles are rarely the result of intentional actions. (Assuming, for the purposes of this argument, that drunk drivers don't actually intend to get into accidents, even though they usually intended to drive and be drunk.)

The problems with guns are almost always the result of intentional actions.

To put it another way, we don't expect the driver's licensing system to block folks who want to drive get-away cars. Why should we think that competence-testing would address with-gun murder?

Note that folks who can't legally drive can legally own cars. That's not the case with gun ownership - should it be?

Also, we don't ban any cars. We merely say that only cars that meet certain qualifications (or met them at some time) can be driven on public roads. And, when a vehicle is not on a public road, it can be driven by anyone.
7.18.2007 9:28pm
Ian Argent (mail) (www):
Gun control doesn't prevent gun crime, though - see Great Britain. And to the extent that it reduces it, other methods of violence replace it. Focusing on the tool hasn't worked. The best kind of gun control is criminal control.
7.18.2007 9:37pm
Andy Freeman (mail):
I didn't mention that there's another difference between vehicles and guns. No one has seriously tried to use vehicle or driver's licensing as a back-door ban or a "first step". The same can't be said for guns.

There's also good faith when it comes to vehicles. We can try something and if it doesn't work, there's a reasonable chance that it will be repealed. With guns, the "regulators" vehemently defend restrictions that have proven useless wrt discouraging "bad use". (The absolute worse that you can say about CCWs is that they have no bad effect, yet they're vigorously opposed.)

Note that we spend publid money on sex and vehicle safety and occasionally competence training yet the mere mention of the same for guns causes fits.

Gun owners who know both gun and vehicle laws will overwhelmingly take vehicle-like laws for guns because that would be a significant roll-back. Regulators who make the "let's treat guns like cars" argument usually start back-pedaling when they see what that would actually entail.
7.18.2007 9:37pm
Doc (mail):
Steve2— In military manuals of the era of the constitution, "well-regulated" was a common term, and it meant "well-armed" and "trained". In other words, a "well-regulated militia" was one which had modern arms in good condition, and could use them effectively in combat".
7.19.2007 5:56am
Doc (mail):
Steve2-- In military manuals of the era of the constitution, "well-regulated" was a common term, and it meant "well-armed" and "trained". In other words, a "well-regulated militia" was one which had modern arms in good condition, and could use them effectively in combat".
7.19.2007 5:56am
ATRGeek:
Whit and Bruce,

I was not trying to answer the question of whether the Constitution allows for sensible regulation of firearms. Rather, I was suggesting a process for determining what would count as sensible regulations.

Andy,

First, I don't think it is factually correct that harmful events involving firearms are almost always the result of intentional acts. At a minimum there are pure accidents, and I would also include intentional acts of violence were the intent to actually do the amount of harm caused by the firearm was lacking. So, for example, in a number of "bar fight" scenarios, an intentional assault with a firearm may turn into a homicide even though the person had not formed the intent to kill.

Second, I think there is good reason to believe that for something like intentional homicides (murders), regulating firearms is not really going to address the problem. In other words, if you really want to murder a particular person, something like firearm regulations probably are not going to be sufficient to stop you, because there are plenty of lethal alternatives (including, for that matter, vehicles and drugs). So, I agree--we shouldn't expect something like competence testing for firearms to stop murders, and generally I don't think we should expect firearm regulations to stop murders.

Third, I think there are valuable lessons to be learned from the fact that we do not ban the ownership of "dangerous" vehicles, and that we make distinctions between the use of vehicles on public roads and in other spaces (racetracks, dragstrips, rally courses, etc.). Similarly, I think we should look with skepticism on total bans on the ownership and use of various types of "dangerous" firearms, and rather might think about regulations that would limit the use of particularly dangerous firearms to something like firing ranges.

Fourth and finally, I am not suggesting that those who propose gun regulations are always trying to be "sensible". Again, I am just trying to introduce a process for determining what sensible firearm regulations might look like, and as you point out and as I have agreed, the results of that process might often be used to criticize various regulatory proposals.
7.19.2007 7:45am
rarango (mail):
As usual, I find myself in a quandry: libertarian, avid hunter, ex-military and proficient in the use of many firearms up to and including the M1 Tank. But I would prefer that many types of firearms be kept out of public hands. It seems to me the issue is striking the right balance, and a word like "ssensible," while imprecise is still useful. Doesnt the "reasonably prudent man" test make any sense in this context?
7.19.2007 12:15pm
Andy Freeman (mail):
> First, I don't think it is factually correct that harmful events involving firearms are almost always the result of intentional acts.

We can look at the numbers. The number of fatal accidents is decreasing towards 1000/year if it hasn't gotten there yet. (There's some evidence that some accidents are actually "the family won't get insurance if we call this suicide". On the other side, there's some reason to believe that some hunting accidents are games gone wrong. Maybe they balance out, so we'll go wih the official numbers.) Murders are a long way from 10k and there are even more with-gun suicides.

Armed robbery and assault are intentional acts - each one is far more common than accidents (including non-fatal).

> I would also include intentional acts of violence were the intent to actually do the amount of harm caused by the firearm was lacking.

If anything, people believe that guns are more deadly than they actually are.

The "bar fight" folks tend to have a history of violence. Given that, I think that it's more accurate to say that the best that you can say about them is that they don't care. The reality is probably "sort of hope, but not really putting a lot of effort into it, and got 'lucky'." (We reward "I didn't intend to kill him", so I discount such statements as self-serving.)

A significant fraction of murders are the end point in repeated and escalating violence involving the parties. (Acquaintance gives both opportunity and motive.) It's reasonable to believe that they intended to go where they were headed.
7.19.2007 12:37pm
Andy Freeman (mail):
> rather might think about regulations that would limit the use of particularly dangerous firearms to something like firing ranges.

It would be nice to see some evidence that such firearms exist. You know - actual problems.

For example, one might believe that automatic weapons or extreme long range weapons might qualify but nothing in our actual experience with such weapons supports that belief. (I've heard that extreme long range weapons have been disallowed for hunting in certain jurisdictions, but that was due to a "you don't have to stalk, you can just sight-in from a mile away" ethic.)
7.19.2007 12:44pm
ATRGeek:
Andy,

In the end, I think the relative frequency of various forms of firearm harm actually doesn't matter, at least if you are not talking about trying to ban firearms entirely (which I agree is unlikely to count as a sensible regulation if the analogy is vehicles). As I noted, in murder cases where the homicide is "the end point in repeated and escalating violence involving the parties" and it is "reasonable to believe that they intended to go where they were headed" it is unlikely that any firearm regulations will prevent the harm from occurring. But that just means firearm regulations shouldn't be geared to trying to deal with that problem.

In other cases of homicides and serious injuries involving firearms, however, and probably including a substantial number of suicides, the instrumentality can matter. On that subject, you wrote, "If anything, people believe that guns are more deadly than they actually are." That is probably correct for some firearms, because it turns out that your chances of surviving being shot with a lot of firearms in many places on your body are pretty good.

On the other hand, this very much depends on the firearm, which is basically a matter of physics: the more destructive energy the firearm conveys to your body, the more likely it is that any given shooting will lead to serious injury or death. So, for example, you would much rather get shot in the upper leg by a .22 than a .44 (and would usually rather get shot by a handgun than a hunting rifle, and so on).

All that may help us craft some sensible lines when it comes to regulating firearms--but first, of course, we would have to agree on the basis for such regulations.
7.19.2007 12:59pm
vinnie (mail):


There is no basis for those regulations. Shot placement is more important than bullet energy except on the extreme ends.
.22 rimfire to the head VS a .44 magnum to the upper leg. The rimfire is more deadly.

.50 BMG to the upper leg would be closer to the same mortality rate.

Its pretty clear to me that the founders meant for the people to have the same weapons as the government.
7.19.2007 10:49pm
Andy Freeman (mail):
> we would have to agree on the basis for such regulations.

My goal is profitable reduction in illegitmate violence. Profitable is important - the benefits received should exceed the costs incurred.

What others do you have in mind?
7.19.2007 11:20pm
vinnie (mail):
"My goal is profitable reduction in illegitmate violence. Profitable is important - the benefits received should exceed the costs incurred."

How about an armed trained citizenry? Gun safety in lower grades, marksmanship, then anti terrorism and crime in high school in the civics curriculum?
7.19.2007 11:43pm
Andy Freeman (mail):
> On the other hand, this very much depends on the firearm, which is basically a matter of physics: the more destructive energy the firearm conveys to your body, the more likely it is that any given shooting will lead to serious injury or death.

While it's a matter of physics, it isn't a matter of simple physics.

For example, the momentum transfer (being shot is an inelastic collision) of even the heaviest small arms is less than what one gets walking into a wall. The kinetic energies aren't that impressive either.

Wound physiology is very complex. It isn't always monotonic in ways that you might expect. Organs move in some situations but not others. Infection can be important. Blood loss is highly variable. The result is that you can't predict much from things likek bullet mass and velocity, or even shape and composition.
7.20.2007 12:15am
vinnie (mail):
Ok, While we are on the subject of reasonable restriction. If "the right of the people to keep and bear arms shall not be infringed" isn't an "absolute right". What is?
7.20.2007 12:52am
vinnie (mail):
I guess I still have some questions. Do we restrict speech or punish the abuse of free speech. I can restrict my son to the yard with a fence or tell him he will get punished for leaving the yard.
There is nothing that you can't say, you may be punished for saying it though.
The speech is free, its misuse is punishable.
This is not the case with guns. Some guns are not legal to own.
7.21.2007 4:23pm