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Claremont Institute Empirical Brief in DC v. Heller:

Just-posted: Marc Ayers (of the Bradley Arant firm in Birmingham) and Don Kates have written a Brandeis brief in the Supreme Court handgun brief. The brief is filed on behalf of the Claremont Institute and a group of scholars.

The main theme of the brief is debunking the "more guns, more murder" meme, which pervades the brief of DC and many of its amici. The theme is elaborated in the briefs of the American Academy of Pediatrics, of the American Public Health Association, and of Professors James Alan Fox and David McDowall.

The single largest topic is a 1991 article in the New England Journal of Medicine by Colin Loftin. The NEJM article reported that the DC handgun ban had reduced homicides and the suicide in the District.

The Claremont brief points out that the NEJM article used raw numbers rather than rates, and used the wrong start date for the law (which was delayed by an injunction issued by the D.C. Superior Court). Moreover, when one compares DC to the other 49 largest U.S. cities, or to Virginia and Maryland, the D.C. homicide rate grew worse in comparison to these other jurisdictions. Notably, a meta-study by the National Academies of Science agreed with the critiques of Gary Kleck and Chester Britt that the NEJM article's data were so fragile as to be of no persuasive value; even small adjustments of the start/end date negated the study's findings.

Given shorter treatment in the Kates/Ayers brief is another study which used the circulation of Guns & Ammo magazine as a proxy for gun ownership levels. The study found that higher circulation of Guns & Ammo was associated with higher homicide. This finding is frequently restated in the briefs of DC and its amici as a finding that more guns leads to more murder. Kates/Ayers cite John Lott's article pointing out that during the study period, Guns & Ammo was giving away a huge number of free copies (to maintain circulation numbers), and targeted the give-aways at cities where it was believed that crime was increasing. The circulation of other gun magazines (which were not using G&A's circulation-boosting method) shows no relation to homicide.

Kates/Ayers present extensive data showing that gun density is not related to homicide. For example, since the late 1940s, per capita gun ownership in the U.S. has soared, while homicide rates have fluctuated with little apparent relation to gun density. Likewise, comparative data from Europe show no relation between gun density levels and homicide rates.

DC has argued that its ban on possession of a functional firearm in the home contains an implicit exception for self-defense. Kates/Ayers explore what such an exception might mean, and argue that there is no way for a Court, or a DC resident, to discern the terms of the alleged self-defense exception.

Sean M:
Note the cite of the Volokh Conspiracy on p. 35!
2.7.2008 8:01pm
Kazinski:
The Claremont brief is a waste of time. If the case was about a gun ban in Fargo, ND, it may have been needed, but anybody that has spent anytime at all in DC knows the gun ban didn't do any good, and may have made the situation worse. The Justices just have to go out the door and walk a few blocks to see that the NEJM study doesn't provide any meaningful data.
2.7.2008 8:17pm
juris_imprudent (mail):
The Justices just have to go out the door and walk a few blocks to see that the NEJM study doesn't provide any meaningful data.

You might note that SCotUS "did not take notice" (meaning no one pointed it out to them) that short-barrelled shotguns were used by the military (U.S. v. Miller). No matter HOW obvious, it has to be properly briefed. Then again, you can BET that Stevens will consult his own alternate universe for factual analysis.
2.7.2008 8:37pm
Brian Moore:
Dave really puts the "tit" in "instititute"!

Grrrrrrrr...
2.7.2008 8:42pm
Tim Lambert (mail) (www):
The NEJM article used raw numbers AND rates.
2.7.2008 8:57pm
Visitor Again:
It's Don B. Kates still on the job after all these years. He's one of the attorneys on the brief. I met him briefly in 1969--on a commercial flight from Los Angeles to Houston--and he showed us his guns right there in cabin class while drumming up our support for the right to bear arms. That's 39 years ago, and he'd already been at it for several years before that.
2.7.2008 9:06pm
Thoughtful (mail):
VA: "It's Don B. Kates still on the job after all these years. He's one of the attorneys on the brief. I met him briefly in 1969--on a commercial flight from Los Angeles to Houston--and he showed us his guns right there in cabin class while drumming up our support for the right to bear arms. That's 39 years ago, and he'd already been at it for several years before that."

And it seems no one tried to highjack THAT plane...
2.7.2008 9:34pm
Vermando (mail) (www):
I have read the respondent's brief and, like the others on this cite, I am impressed. This is a topic which, legally, I am new to, and so I have a question for those who are more informed on this issue than I am:

How are military weapons - a.k.a. real machine guns - dealt with? Gun rights can be fundamental because of rights of self-defense and rebellion, but surely there must be some limit. If these limits destroy the purpose of the protection, though - a.k.a., my shotguns back home doesn't provide help me a bit should the government choose to make up a crime and haul me away - is there a real point in framing the almost insignificant protections afforded by what is left in terms of fundamental rights?

I realize that I am probably throwing up a softie for those familiar with this topic, but as I am new to it and so would appreciate some insight from the wise and experienced audience here. Many thanks.
2.7.2008 11:30pm
Tony Tutins (mail):
Very nice and well written. It addresses well the Loftin Study used in the McDowall and Fox brief, despite the "crack cocaine handgun murder epidemic" that seems to have skipped over all cities besides the District. Kates might have pointed out that peer review of a criminological study by a medical journal is probably as useless as a criminalogy journal's peer review of a new medical procedure. Then McDowall pulls a fast one by suddenly lumping suicides together with homicides. Personally, killing myself should be my decision, not some stranger's. And as usual, the McDowall study concludes that gun control's ineffectiveness can be cured by imposing gun control on every place else.

The APHA brief actually mentions the case-control methodology doctors use to study epidemics, although here the example used is lung cancer deaths. One thing I have found useful in addressing the "2.7" times more likely to be killed by a bullet is to point out that the articles also show renters are more likely to be killed by a bullet than homeowners, and that owning a dog lessens your chance of being a bullet victim (if I remember correctly).

The AAP brief makes a good case for locking up one's gun out of reach of the tots. But, as with cars, chainsaws, cleaning products, and cigarettes, adults should not be limited to child safe products.
2.8.2008 1:09am
Jim at FSU (mail):
Page 22 chart: left and right axes are mislabeled in the legend. Murder rate per 100k is the left set of numbers, guns per person is the right side.

Otherwise very nice.
2.8.2008 2:19am
Nessuno:
Very impressive amicus. With some editing, the authors could reprint it as an article titled "Why everything you think you know about gun control is wrong". It really is a tour de force in deconstructing every public policy argument in favor of gun bans.

I really am eager to see how the court deals with this case. I know I'm biased because I have strong opinions on the matter, but I feel this case will be the true litmus test for the intellectual (and actual) honesty of each of the individual Justices.

Will they continue to assert that gun bans reduce crime, when the amici briefs destroy that idea? Will those Justices who delve into the penumbras to find rock solid rights fail to see a right in the plain language? Will they find that this right, labeled as "necessary" in the text, is nevertheless not "fundamental"?

This case will go a long way in either growing or destroying my faith in the judiciary branch of our government.
2.8.2008 5:02am
Steve in CT (mail):
That's all you've got Tim Lambert? You do such a good job defending any anti gun screed at your own site.
2.8.2008 5:39am
Happyshooter:
Whenever I see anyone print in science or academics who is anti-gun, I am amazed how dishonest and corrupt a percentage of them are.

I am really shocked by how the rest of their professional community lets them get away with it.

Of course, Arming America was the worst example, with fellow liberals in the university world letting him get away with the fraud and even giving him awards until a few conservatives were able to attract media attention because the book was so false.

These examples are just as bad-- but because numbers are involved the evil doers are getting a pass and still professionally respected and held out as examples of scientists.
2.8.2008 9:03am
John (mail):
May I ask, what the hell is expert opinion, supporting either side, that has not been introduced at trial, and subjected to cross examination, doing on the laps of the justices?
2.8.2008 9:21am
Charlie (Colorado) (mail):
John, IANAL, but aren't amici briefs sort of used at discretion? Kinda like when your friend takes you aside and tells you your fly is open and you've got spinach on your teeth, and besides, she's married?

By the way, since IANAL, what the hell is a Brandeis brief?
2.8.2008 9:34am
Kevin P. (mail):
There is a significant typo on page 18, line 4: (850,000 guns per 100,000) should be 85,000. The table that comes afterwards is correct and should illustrate the typo to any numerically literate person. However, if there still is time, it might be best to correct and resubmit.
2.8.2008 9:49am
Clayton E. Cramer (mail) (www):

The NEJM article used raw numbers AND rates.
Sorry, but the Loftin study used DC's raw counts of homicides (not murders) and suicides per month to make its claim. They claimed to have looked at vital statistics data to see if there was any population change between the before and after periods, and claimed that they didn't see any evidence of it. But the population was 15% lower in the after period than in the before period.
2.8.2008 10:00am
Clayton E. Cramer (mail) (www):

One thing I have found useful in addressing the "2.7" times more likely to be killed by a bullet is to point out that the articles also show renters are more likely to be killed by a bullet than homeowners, and that owning a dog lessens your chance of being a bullet victim (if I remember correctly).
My recollection of that study was that renting or having a dog were HIGHER risk than owning a gun. Not because renting or having a dog is intrinsically dangerous, but because people living in rough neighborhoods, with fear of attack, tend to be poor, black, and own dogs for protection.

It is rather like correlating the ownership of hypodermics and insulin with having diabetes. There's no question that the correlation is strong--but insulin doesn't cause diabetes.
2.8.2008 10:04am
Clayton E. Cramer (mail) (www):

It's Don B. Kates still on the job after all these years. He's one of the attorneys on the brief. I met him briefly in 1969--on a commercial flight from Los Angeles to Houston--and he showed us his guns right there in cabin class while drumming up our support for the right to bear arms. That's 39 years ago, and he'd already been at it for several years before that.
It has a lot to do with his work as a civil rights attorney in the early 1960s, where it wasn't paranoid to be carrying a gun, because there were bad people quite prepared to kill you for registering black people to vote.

Don is a unique character. My first sight of him on TV, he had a parrot on his shoulder.
2.8.2008 10:07am
Clayton E. Cramer (mail) (www):

By the way, since IANAL, what the hell is a Brandeis brief?
Named after the attorney (and later Supreme Court justice) who popularized the idea that the courts should look at the social consequences of their decision, rather than rely simply on what the law requires.
2.8.2008 10:09am
Clayton E. Cramer (mail) (www):
Vermando asks:

How are military weapons - a.k.a. real machine guns - dealt with? Gun rights can be fundamental because of rights of self-defense and rebellion, but surely there must be some limit. If these limits destroy the purpose of the protection, though - a.k.a., my shotguns back home doesn't provide help me a bit should the government choose to make up a crime and haul me away - is there a real point in framing the almost insignificant protections afforded by what is left in terms of fundamental rights?
Back in 1934, when the House Ways & Means Committee was discussing what became the National Firearms Act of 1934 (which is origin of the federal law regulating machine guns, short-barreled shotguns and rifles, silencers, and a few other oddities), one member of the committee asked why the Department of Justice was proposing such a complex scheme involving registration and a transfer tax, instead of an outright ban on private ownership? (This was borrowed from the Harrison Narcotic Act--the first federal regulation of opiates.)

Both the Attorney-General and Asst. Attorney-General--who were supporters of the bill--explained that Congress lacked Constitutional authority to do so, because of the Second Amendment. And that's the basis on which U.S. v. Rock Island Armory (C.D.Ill. 1991) was decided--and why the federal government decided not to appeal a criminal case there, when they lost.

There is no question in my mind that machine guns, like other "arms" (that which one person can pick up and carry as a weapon) are protected by the Second Amendment. It is legitimate to regulate possession and purchase to keep prohibited persons for getting them--but such regulation must conform to strict scrutiny.

There is a compelling governmental interest in keeping deadly weapons out of the hands of violent criminals (although we might argue about whether non-violent felonies should be included, and at what level a violent misdemeanor qualifies), those found to be mentally ill or defective, and those whose loyalty is not to the U.S.

But such a law must be narrowly tailored to that purpose, and must not be overbroad. Perhaps more importantly, which is more dangerous? A convicted felon with a .22 rifle? Or a law-abiding, mentally healthy adult with a machine gun?

I suspect that if the gun control movement finally gets a stake through its heart, we might be able to move forward with some sort of general firearms license. Issued by the federal government would be a violation of federalism, but such a license would verify the status and identity of the person, and would allow the licensee to buy or sell a gun anywhere in the U.S. (not just in his state of residence), and to carry a gun anywhere in the U.S. (with a few obvious exceptions such as jails, courthouses, airport sterile areas). And it wouldn't matter what type of gun, including a machine gun. It isn't the type of gun that matters; it is the type of person holding the gun that matters.
2.8.2008 10:21am
Gramarye:
Charlie wrote:
By the way, since IANAL, what the hell is a Brandeis brief?
A Brandeis brief is a brief that emphasizes facts more than law, generally with the aim of attacking the law indirectly when the prevailing legal doctrine is based on conventional wisdom or factual assumptions rather than exclusively on prior common law or statute. The original Brandeis Brief case, Muller v. Oregon (1908), was decided during the Lochner era when all labor regulations were constitutionally suspect. The burden of proving the law passed muster was on the law's defenders. Brandeis came up with the Brandeis brief basically as a way of carrying that burden, and started a long trend (and more than a few courses) regarding using social science to reinforce legal arguments.
2.8.2008 10:30am
Kevin P. (mail):
Clayton, thanks for posting about the interesting U.S. v. Rock Island Armory case.

I read the case and it seems to say that in that federal circuit, the federal government cannot prosecute anyone for possessing an unregistered post-1986 machine gun? Kewl...

Of course, most state laws unfortunately pre-condition the lawful possession of NFA items upon their being registered with the feds. So I guess that with the exception of New Hampshire (which has no laws about machine guns at all), state laws would still effectively forbid the unregistered possession of post-1986 machine guns.

Politically speaking, how difficult would it be sneak a repeal of 922(o) into some Congressional Act or the other? In the Defense Appropriations Act to promote the industry? There is so much stuff that gets sneaked in, it seems nobody would really notice.
2.8.2008 11:14am
ClosetLibertarian (mail):
juris_imprudent,

You are referring to the Miller case about shotguns, right? Or do you think that issue will come up in Heller?

I think that issue will be ignored for now.
2.8.2008 11:30am
Gramarye:
Vermando wrote:
How are military weapons - a.k.a. real machine guns - dealt with? Gun rights can be fundamental because of rights of self-defense and rebellion, but surely there must be some limit. If these limits destroy the purpose of the protection, though - a.k.a., my shotguns back home doesn't provide help me a bit should the government choose to make up a crime and haul me away - is there a real point in framing the almost insignificant protections afforded by what is left in terms of fundamental rights?
Perhaps not, but the whole point of the respondents' brief is that the prefatory clause does not limit or negate the operative clause. Therefore, there's more reason than just the preservation of the right to rebel (which IMHO is actually by far the weaker justification for a robust individual right to keep and bear arms in modern America).

For rebelling against the Republic--well, first, don't--but second, even machine guns aren't going to help, and I doubt any of the respondents are seriously going to argue for a robust, private, individual right to keep and bear stealth bombers, aircraft carriers, and nuclear warheads. The right to defend one's home and family, however, is also a fundamental right (or at least, it would be hard to argue against it ... I don't think the Supreme Court has actually held this, and "fundamental right" is something of a term of art, but the point is going to be hard to argue if ever placed squarely in play), and one that can be served by weapons well short of what one would need to topple the government.
2.8.2008 11:41am
Tony Tutins (mail):
I really like our government, and would help stop anyone who tried to topple it, but I can't help pointing out that small-arms-equipped Palestinians and Iraqis are doing a respectable job fighting a foe equipped with tanks and aircraft. For further examples of the effectiveness of small arms in combat, read the reports of the UN committees advocating strict limits on small arms sales. As one example, they point out how the IRA armed themselves at gun shows held in the U.S.
2.8.2008 12:02pm
SJE:
Based on the facts presented, shouldn't DC attempt to ban Guns and Ammo magazine instead of handguns?
2.8.2008 12:19pm
Clayton E. Cramer (mail) (www):

I read the case and it seems to say that in that federal circuit, the federal government cannot prosecute anyone for possessing an unregistered post-1986 machine gun? Kewl...
Not quite. The decision was with respect to a machine gun manufacturer who made guns after the 1986 cutoff date, and then backdated their records. Because the government chose not to appeal, this isn't binding precedent.


Of course, most state laws unfortunately pre-condition the lawful possession of NFA items upon their being registered with the feds. So I guess that with the exception of New Hampshire (which has no laws about machine guns at all), state laws would still effectively forbid the unregistered possession of post-1986 machine guns.
I believe Idaho also has no laws on the subject.

Politically speaking, how difficult would it be sneak a repeal of 922(o) into some Congressional Act or the other? In the Defense Appropriations Act to promote the industry? There is so much stuff that gets sneaked in, it seems nobody would really notice.
No, it would be noticed.
2.8.2008 12:20pm
Clayton E. Cramer (mail) (www):

For rebelling against the Republic--well, first, don't--but second, even machine guns aren't going to help, and I doubt any of the respondents are seriously going to argue for a robust, private, individual right to keep and bear stealth bombers, aircraft carriers, and nuclear warheads. The right to defend one's home and family, however, is also a fundamental right (or at least, it would be hard to argue against it ... I don't think the Supreme Court has actually held this, and "fundamental right" is something of a term of art, but the point is going to be hard to argue if ever placed squarely in play), and one that can be served by weapons well short of what one would need to topple the government.
I agree that rebelling against the government is unlikely to be successful unless there are millions of other Americans prepared to risk their lives as well. As the Declaration of Independence observes, people are inclined to put up with some injustice rather than overturn a government for light and transient reasons. Of course, there are circumstances so awful that there isn't really any question as to whether to do so or not.

But it is not necessary for everyone to have sophisticated weapons outside the definition of "arms" to accomplish this mission. To some extent, the more people you have, the less impressive the weapons have to be.

If 2/3 of the population is on your side, and willing to risk upsetting the authorities, it may not even taken violence.

If 30% of the population is prepared to risk death, they could do it with hunting rifles. Tank crews have to come out of their tanks at some point, and I suspect that the Air Force might stop taking orders to bomb cities to suppress the rebellion.

If 5% of the population is prepared to risk death for their cause, those assault weapons and even full automatics would be sufficient to make many parts of America no-go zones for the government.

If it is you and a few thousand other fanatics (think of the Weather Underground), you probably do need stealth bombers and nuclear submarines. But this is getting perilously close to the definition of insanity: a minority of one.
2.8.2008 12:28pm
Thoughtful (mail):
"There is a compelling governmental interest in keeping deadly weapons out of the hands of...those whose loyalty is not to the U.S."

If one of the primary motivations of the 2nd amendment was to protect against tyranny, it would be strange to require "loyalty...to the U.S." as a prerequisite to its use.
2.8.2008 1:25pm
SJE:
I, too, noticed the "compelling government interest in keeping weapons out of the hands of ... those whose loyalty is not to the US." How would one decide what is sufficient loyalty? Good point.

I note that the argument, however, is not an argument for a blanket ban that DC has, but for some rational means of restricting ownership. DC could achieve that goal through less restrictive means.

I am guessing that current laws tend to restrict guns from criminals, which would include terrorists. I am hoping that if Osama Bin Laden applied for a concealed carry permit, he would be denied. :)
2.8.2008 1:38pm
Clayton E. Cramer (mail) (www):

"There is a compelling governmental interest in keeping deadly weapons out of the hands of...those whose loyalty is not to the U.S."

If one of the primary motivations of the 2nd amendment was to protect against tyranny, it would be strange to require "loyalty...to the U.S." as a prerequisite to its use.
Loyalty to the U.S. isn't the same as loyalty to its government--or at least, so I was repeatedly told during the Vietnam War by antiwar activists.

I agree that there is some room for difficulty on this. Current federal law prohibits U.S. citizens who have renounced their citizenship from purchasing firearms. This is the Lee Harvey Oswald Memorial firearms disability.
2.8.2008 1:49pm
Clayton E. Cramer (mail) (www):

I, too, noticed the "compelling government interest in keeping weapons out of the hands of ... those whose loyalty is not to the US." How would one decide what is sufficient loyalty? Good point.

I note that the argument, however, is not an argument for a blanket ban that DC has, but for some rational means of restricting ownership. DC could achieve that goal through less restrictive means.

I am guessing that current laws tend to restrict guns from criminals, which would include terrorists. I am hoping that if Osama Bin Laden applied for a concealed carry permit, he would be denied. :)
1. The Revolutionary state governments did prohibit not only gun ownership, but holding office, filing lawsuits, and transferring land, to those that were not prepared to swear a loyalty oath to the Revolutionary government. I don't have a problem with that. (Some people have a problem with that when applying for university teaching jobs.)

2. Most states require you to be either a citizen of the U.S., or a permanent resident, in order to possess a firearm, or to get a concealed carry permit. Again, this would certainly survive strict scrutiny. There is a compelling interest in making sure that someone obtaining a firearm isn't likely to flee the country after committing a crime, or is like a character from an episode of 24!

3. As mentioned above, the current law on this question of loyalty is the Lee Harvey Oswald Memorial firearms prohibition.
2.8.2008 1:53pm
Clayton E. Cramer (mail) (www):
The authors of the brief asked me to thank those of you who caught typos; the brief is being corrected and resubmitted.
2.8.2008 2:40pm
Sam Draper (mail):
I don't think a tyrannical US government would have an easy time stopping a mass revolution. Nuclear bombs, guided missile cruisers and the like are completely worthless at fighting an insurgency. You need boots on the ground, and the feds don't have enough of them. There are only 100,000 or so federal LEOs and 1.4 million in the active duty military, plus another 1.4 million in the reserves. That is less than 3 million people under arms.

Military theory says you need to outnumber insurgents by 8 to 12 to one to achieve victory. There are only like 20,000 insurgents in Iraq, and we didn't have a handle on that until we got the ratio right with the surge. There were about 400,000 Viet Cong; we only had about 1.5 million US and South Vietnamese troops in country, with a predictable result.

There are like 80 million gun owners in the United States. How do you control that? Even if only 10% of them will fight, it would be an impractical task. That would be 4,000 Iraqs or 200 Vietnams all at the same time.

I know it is silly to talk about such things, but imposing tyranny on the United States is unlikely in part because it would be impossible.
2.8.2008 4:34pm
Kevin P. (mail):

Clayton E. Cramer:
The authors of the brief asked me to thank those of you who caught typos; the brief is being corrected and resubmitted.

Cool, glad to be of help :-)
2.8.2008 4:57pm
SJE:
Clayton:
My point is that if DC wants to argue compelling government interest as a basis for its blanket ban, there is a less restrictive means to acheive the same end, and therefore its argument fails for the purpose it was employed.

I do think, however, that question of loyalty to the US is a sticky question. There is clearly a good argument for the Oswald Amendment etc. However, what sort of "loyalty" could the government require before purchasing a handgun. In view of the recent fad of calling everyone who opposed Bush a "traitor," I ask what degree of dissent etc is allowed before you are no longer "loyal"
2.8.2008 5:26pm
federal farmer (www):

There were about 400,000 Viet Cong; we only had about 1.5 million US and South Vietnamese troops in country, with a predictable result.


Not to mention the fact that you can't carpet bomb our own country.

No, I think it is the reverse...I think it's the government that doesn't stand a chance.

It's not like the insurgents won't look like the non-insurgents. I doubt any will wear different colored uniforms.
2.8.2008 5:39pm
Clayton E. Cramer (mail) (www):

However, what sort of "loyalty" could the government require before purchasing a handgun. In view of the recent fad of calling everyone who opposed Bush a "traitor," I ask what degree of dissent etc is allowed before you are no longer "loyal"
I agree that this is a sticky question. But disagreement with Bush about the war didn't get anyone called a traitor (at least, not by anyone who mattered). When you claim that 9/11 was a U.S. attack on itself, or that the Bush Administration allowed the attack to have an excuse for war, or that Jews called in sick that day because they were warned in advance, or make the claim that the U.S. invaded Afghanistan in order to benefit U.S. oil companies--that's treasonous.

It really says quite a bit about how little the Bush Administration was willing to do against political enemies that they didn't do anything but call them names. Compare their behavior in wartime to what the Lincoln Administration did (arresting members of the Maryland legislature to prevent them from voting), or the Roosevelt Administration (locking up more than 100,000 people, mostly U.S. citizens, because of their race)--and it really shows you how restrained Bush was.
2.8.2008 7:31pm
Charlie (Colorado) (mail):
Clayton, Gramarye, thanks for the info.

I wonder how many years you have to read Volokh before you can sit for the Bar?
2.8.2008 7:32pm
Clayton E. Cramer (mail) (www):

There are only 100,000 or so federal LEOs and 1.4 million in the active duty military, plus another 1.4 million in the reserves. That is less than 3 million people under arms.
More important than just the raw numbers is that an armed population fighting back will change the attitudes of those government employees.

If you are given an order that you find detestable--or perhaps even blatantly illegal--will you obey it? Let's say that your sergeant is behind you, and you know that refusing to open fire will get you least court-martialed--perhaps worse, if the government has been taken over by Hitlerian sorts. If you are shooting at unarmed peasants, the only real risk is your commander shooting you or having you court-martialed.

If you are shooting at peasants that can shoot back, the balance of terror has changed. If you are at roughly equal risk of death either way, at least some of the soldiers or LEOs will change sides, and do the right thing.

This isn't just theory, either. Events like this happened in some American cities during the Great Railway Strike of 1877. National Guard units in some cases refused their orders to fire on non-violent strikers; in a few cases, they actually turned over their weapons to the strikers. Regular Army units in West Virginia actually withdrew from a fire fight with armed strikers because the strikers had repeating rifles; the Army didn't. My book For the Defense of Themselves and the State (Praeger Press, 1994) has a number of such examples.
2.8.2008 7:37pm
Clayton E. Cramer (mail) (www):

I wonder how many years you have to read Volokh before you can sit for the Bar?
California used to allow paralegals to take the Bar exam--and enough passed that they finally changed to law to require you to go to law school first. What can we do to reduce competition?
2.8.2008 7:38pm
Charlie (Colorado) (mail):

When you claim that 9/11 was a U.S. attack on itself, or that the Bush Administration allowed the attack to have an excuse for war, or that Jews called in sick that day because they were warned in advance, or make the claim that the U.S. invaded Afghanistan in order to benefit U.S. oil companies--that's treasonous.



Clayton, really? It's defined in the Constitution that treason "shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

I might buy sedition, but treason? Seems a long stretch.
2.8.2008 7:40pm
Clayton E. Cramer (mail) (www):


Clayton, really? It's defined in the Constitution that treason "shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

I might buy sedition, but treason? Seems a long stretch.
What exactly would you call making the claim that 9/11 was a U.S. government conspiracy to start a war? Is there anything that gave more aid and comfort to our enemies?
2.8.2008 8:16pm
Gramarye:
Clayton, Sam Draper, others, particularly vis-a-vis these sentiments:
If 2/3 of the population is on your side, and willing to risk upsetting the authorities, it may not even taken violence.

If 30% of the population is prepared to risk death, they could do it with hunting rifles. Tank crews have to come out of their tanks at some point, and I suspect that the Air Force might stop taking orders to bomb cities to suppress the rebellion.

If 5% of the population is prepared to risk death for their cause, those assault weapons and even full automatics would be sufficient to make many parts of America no-go zones for the government.

If it is you and a few thousand other fanatics (think of the Weather Underground), you probably do need stealth bombers and nuclear submarines. But this is getting perilously close to the definition of insanity: a minority of one.


You're making a fundamental and dangerous assumption here. You're assuming that the government would have absolutely no more manpower available five minutes into such a conflict as it had at the start, and that 100% of the armed citizenry would be fighting against the government, not with it.

It would have to be a tyrannical government indeed to prompt such universal opposition. Our own history suggests that national loyalties are not so hard to simply forsake, and that the distinction between loyalty to the government and loyalty to the state (or "the country") is either unexamined or examined and rejected by a fair number of the populace. When the calls went out for volunteers to fight the Civil War, it wasn't like the government was suddenly starved of manpower; quite the reverse, in fact. Underhanded tactics like conscription of newly arrived immigrants didn't start until later. Remember how Tennessee got its nickname?

More to the point, because at least at the moment, most people do not feel that America is such a tyrannical regime (even with the vitriolic hatred of the Bush administration from many quarters), nor is it on the verge of becoming so, even if there were historical merit to the "right to rebel" argument, historical merit and contemporary merit are arguably distinct here. I'm speaking here of both legal and political strategy. When you say that the right to keep and bear arms guarantees the right to resist tyrannical government, what many hear, even many on the fence, is "we need guns so we can shoot cops." That really doesn't sound like a persuasive argument, and quite honestly, since that flows from contemporary opinion and experience, it's not something you can counter with historical evidence about the purpose of the Founders in drafting the Second Amendment. Putting the emphasis on the right of self-defense puts the onus on a gun opponent to show how either that right does not exist or that firearms don't serve it. That is a much weaker position to be in than defending the right of the government to maintain order (never mind itself) against rebellion; after all, while guaranteeing the right to keep and bear arms, the Constitution also gives the government the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." (Emphasis added.)

If there were ever to be armed resistance to the current government, it would have to take what you obliquely referenced in your "30% scenario" above, and then more: the American military not just refusing to target the insurgency, but joining it. Of course, then you've got the nightmare of all nightmares: the American military turning its weapons on itself, the prospect of military rule by one side or the other once the fighting ended, however it ended, and war on our own soil by the only military capable of taking ours on in a no-holds-barred contest: ours.

The Iraqi analogy is weak. If Iraq were no farther than Mexico, the situation would be very different. If Iraq were a subpart of the U.S.--say, like the newly declared independent nation of Lakotah--the situation would be even moreso, both in terms of what the public would support and what the military would be able, logistically, to accomplish.
2.9.2008 11:04am
Jack Newman (mail):
A point not yet noted: there is not one soldier sworn to protect the government. The oath commits us to "preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic...", which does not always mean support the government. I would expect any government (in this country) that actually had as much as 10% of the population taking up arms against it to also be facing at least a portion of the military, with another large portion refusing to enter combat. I have great faith in the courage and honor of our military leaders.
I carry a pistol to protect myself and, when I can see the right, others from persons who would do harm. I maintain, and practice with, long arms to protect myself and my Constitution from persons or governments who would do harm. I consider these two purposes to be sufficient reason for the second ammendment.
2.9.2008 2:00pm
Clayton E. Cramer (mail) (www):

You're making a fundamental and dangerous assumption here. You're assuming that the government would have absolutely no more manpower available five minutes into such a conflict as it had at the start, and that 100% of the armed citizenry would be fighting against the government, not with it.

It would have to be a tyrannical government indeed to prompt such universal opposition.
Yes. If it wasn't a tyrannical government of that severity, I suspect that few people would rise up in rebellion against it. Things have to be really bad before revolution becomes an appropriate response: police arresting people in the middle of the night, who then disappear, and family and friends can't contact them; mass roundups of political dissidents; confiscation of weapons (which would likely be the first step for obvious reasons); that sort of thing.
2.9.2008 5:21pm
federal farmer (www):

The Iraqi analogy is weak. If Iraq were no farther than Mexico, the situation would be very different. If Iraq were a subpart of the U.S.--say, like the newly declared independent nation of Lakotah--the situation would be even moreso, both in terms of what the public would support and what the military would be able, logistically, to accomplish.


It would likely not be a separate little sub-area. You are making the mistake of thinking geographically. Resistance would come from ordinary people in all 50 states. You can't carpet bomb a whole county to get the 10% of the people that are rebels. If you did, you'd find yourself facing a much higher percentage of rebels in other areas.

It is not a pretty sight and it is the job of statesmen to keep it from happening. Too bad there are so few of them around anymore.
2.9.2008 6:39pm
Vinnie (mail):
It is not a pretty sight and it is the job of statesmen to keep it from happening. Too bad there are so few of them around anymore.





A statesman is a politician who's been dead for 15 years."
—Harry Truman
2.12.2008 4:44pm