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Jews for the Preservation of Firearms Ownership brief in DC v. Heller:

In the Supreme Court handgun ban case, the brief for Jews for the Preservation of Firearms Ownership presents an argument on a highly emotional topic in a very sober and solid manner. Gun bans do not always lead to genocide: Luxembourg bans all guns--and provided the sculpture of the destroyed revolver with a twisted barrel that now adorns the plaza outside the United Nations. The gun-hating government of the Duchy has not attempted genocide against is disarmed subjects. However, as the JPFO brief shows, governments which do perpetrate genocide do work hard to disarm the victims beforehand.

Addressing this argument is something which the anti-gun lobbies have rather conspicuously avoided over the years. In 1995, I participated in a international gun control symposium New York Law School; for my contribution, I wrote a favorable review of JPFO's book Lethal Laws. The staff of New York Law School Journal of International and Comparative Law contacted gun control groups, and solicited an article to counter mine. There were no takers.

While the pro-ban amicus briefs in DC v. Heller do anticipate some of the arguments (e.g., gun control's racist roots, Gary Kleck's figure of 2.5 million annual defensive gun uses) which were expected to be raised by Heller or his amici, none of the pro-ban briefs address the genocide issue. The closest thing to a counter-brief is that of by the Educational Fund to Stop Gun Violence, filed on behalf of a large number of organizations, including several Jewish ones. The brief argues that the Second Amendment could not possibly have been written to protect the means of resistance to tyranny. The EFSGV brief and the JPFO brief both provide evidence from Founding Era writings to support their respective arguments.

Justin (mail):
I'm still waiting from the brief from the One Legged Transgender Midgets for the Second Amendment ;)
2.10.2008 3:18pm
Waldensian (mail):

I'm still waiting from the brief from the One Legged Transgender Midgets for the Second Amendment ;)

No doubt your fellow members in OLTMFTSA asked you to support this effort.
2.10.2008 3:25pm
JosephSlater (mail):
"Gun bans do not always lead to genocide."

Well, glad we cleared that up.
2.10.2008 3:48pm
TRE:
I hope that is 2.5 million defensive uses, not 2.5 average per year.
2.10.2008 3:54pm
Ari (www):
In other news, Gay Unattractive Northern Seljuk Armenian Radical Especially-Gregarious Organized Orderly Demonstrators, or GUNSAREGOOD, today filed a brief with the Supreme Court...
2.10.2008 3:56pm
A.:
No need, however, to blog all the pro-ban briefs. Just mention them in passing, but under no circumstances show both sides of the argument, lest anyone change his mind.
2.10.2008 4:14pm
wuzzagrunt (mail):
....but under no circumstances show both sides of the argument, lest anyone change his mind.

If you have a link to one that makes a persuasive case, without misstating facts, or fudging the history of the Bill of Rights, I'd be interested in reading it.
2.10.2008 4:24pm
pmorem (mail):
No need, however, to blog all the pro-ban briefs. Just mention them in passing, but under no circumstances show both sides of the argument, lest anyone change his mind.

VC is a libertarian leaning blog, and under no obligation to cater to the tastes of authoritarians and statists.
2.10.2008 4:28pm
A.:
Oh, I don't support gun control myself, and I in no way think of VC as "under obligation to cater to the tastes of authoritarians and statists," nor anyone else, for that matter. It's just that this series of ten posts all on one side seems to sell intellectual inquiry short. If Kopel were posting his own arguments I wouldn't expect him to post responses, but since he's just linking to others' arguments, he'd advance the discourse more (and lessen the impression of an absurd echo chamber) by offering both sides.

We aren't really here to teach each other what to say to the enemy, are we? That's silly.
2.10.2008 4:37pm
eyesay:
However, as the JPFO brief shows, governments which do perpetrate genocide do work hard to disarm the victims beforehand.
There are plenty of arguments on handgun ownership policy, including on the proper interpretation of the Second Amendment, and on various theories and practicalities of public policy.

But please. Of all arguments, the idea that it is good public policy in 2008 for lots of Americans to have handguns so that they can oppose tyrannical governments has to be one of the lamest, silliest, most idiotic arguments ever dreamed up.

We already have the most tyrannical American government that most of us have ever lived through. We go through silly, meaningless searches before we board aircraft, where they confiscate our toothpaste, our peanut butter and jelly, and our soft drinks. Our government captures innocent people and sends them off to Syria and Egypt for torture. We have tortured to death innocent Iraqi citizens. Oh, and our Supreme Court ruled that it is perfectly OK to take away someone's property and give it to a private developer.

Has public ownership of handguns done any good to "resist" all this tyranny? Is there any prospect of public rebellion against all this tyranny? If there were any such prospect, would it be a good idea?

Police roadblocks in Florida turned away numerous African American voters on election day, 2000. This state tyranny helped put the current tyrannical regime in power. Does anyone here think the correct response at the time would be for such harassed voters to whip out their handguns and blow the cops away? Puh-lease.
2.10.2008 4:37pm
Waldensian (mail):

No need, however, to blog all the pro-ban briefs. Just mention them in passing, but under no circumstances show both sides of the argument, lest anyone change his mind.

Well, you can always start your own blog.

Meanwhile, there's certainly lots of snark about the somewhat esoteric outfit filing this brief, BUT: I'm waiting for somebody to contradict the substance of the JPFO brief, and particularly this:

...every instance of genocide in the Twentieth Century was preceded by the disarming of a civilian population.
2.10.2008 4:38pm
glangston (mail):
It seems the number of briefs in this case are fairly numerous. Is there a record?
2.10.2008 4:43pm
David M. Nieporent (www):
Police roadblocks in Florida turned away numerous African American voters on election day, 2000.
No, they didn't. There was not a single voter, black or otherwise, "turned away" by "police roadblocks."
2.10.2008 4:43pm
Waldensian (mail):

Has public ownership of handguns done any good to "resist" all this tyranny? Is there any prospect of public rebellion against all this tyranny? If there were any such prospect, would it be a good idea?

You misapprehend the purpose of the Second Amendment. It doesn't protect our right to bear arms to oppose an overreaching executive who is nevertheless willing to leave office at the end of his term. It's there to empower widespread armed resistance only in the true "doomsday" scenario. Judge Kozinski, who coined that description, put this much better than I ever could:

The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
2.10.2008 4:47pm
guest:
David,
Most of the briefs in favor of the petitioners focus on federalism and incorporation. I find the arguments persuasive, in that the amendment was only intended to apply to the federal government. I am not clear as to how this State's Rights interpretation applies to DC. Can you, or someone familiar with the area, explain how DC's police powers compare with those of a state?
I was under the impression that the court would not decide whether to incorporate the amendment in this case because a state was not involved. Is the court likely to address this issue?
Thanks
2.10.2008 4:49pm
great unknown (mail):
eyesay:
Whatever you think about it, the current government rates a "milquetoast" on the tyranny scale. Compare it to truly tyrannical governments, such as the Soviet Hegemony, North Korea, or the FDR regime during WWII.
2.10.2008 5:15pm
eyesay:
David M. Nieporent:
Police roadblocks in Florida turned away numerous African American voters on election day, 2000.
No, they didn't. There was not a single voter, black or otherwise, "turned away" by "police roadblocks."
You can find support for this theory, but it's all lies. Here are reputable sources with the real story.

BBC: Florida's black voters protest

CNN: Florida Secretary of State Katherine Harris defends actions in November election, which includes this:
The panel heard complaints Thursday from black voters in Florida who said they were wrongly turned away from the polls. Many complained that they were intimidated by police roadblocks or found their names wrongly stricken from voting rolls.
William Whiting, a church pastor, said poll workers told him he wasn't registered. Whiting, who said he always votes, said poll workers told him "You are listed as a convicted felon. You are purged from our system. You have lost your civil rights."
"I was slingshotted into slavery," he said.
Thousands of voters listed as convicted felons were taken off Florida's voting rolls before the November balloting, and many, like Howell and Whiting, have complained that they were wrongly included on that list. Others have said they were turned away from the polls because voting registration applications from state motor vehicle offices weren't processed.
2.10.2008 5:19pm
wuzzagrunt (mail):
Waldensian wrote:

Meanwhile, there's certainly lots of snark about the somewhat esoteric outfit filing this brief, BUT: I'm waiting for somebody to contradict the substance of the JPFO brief, and particularly this:


...every instance of genocide in the Twentieth Century was preceded by the disarming of a civilian population.

Mainly a semantical quibble, but most of those murdered, in the examples cited in the JPFO brief, would properly be classified as democide. That does not detract from the point of the the argument, however.
2.10.2008 5:21pm
Shotgun Charlie:
I especially liked the brief from Grass Roots of South Carolina, arguing, essentially, that the Court has not hesitated to find penumbral rights without any textual basis whatsoever and should recognize that, whatever the proper interpretation of the Second Amendment, an individual right to keep and bear firearms should still find constitutional protection.

This brief is clearly a shot across the bow at the liberal wing, and I think it's designed to appeal to them on several levels. Primarily, I think it subtly advances the point that the Court will have a serious political problem if it reads liberal rights INTO the Constitution while reading conservative rights OUT.
2.10.2008 5:59pm
wuzzagrunt (mail):
...most of those murdered, in the examples cited in the JPFO brief, would properly be classified as [victims of] democide.
2.10.2008 5:59pm
A.:
Guns can effectively protect individual citizens against other individual citizens (and, of course, allow them to hurt other citizens or themselves). They can be fun, they can be used to get food, and they can give a false sense of security or masculinity. They cannot be used to effectively resist a state armed with tanks, planes, missiles, etc.

If tyranny does come, there's nothing your pop gun can do about it. Either a) the US army is unwilling to use its arms against civilians, armed or otherwise, or b) the civilians lose. The silly fantasy that the populace is or could be comparably armed to a modern army can't be taken seriously. Life isn't a movie, and you and your buddies aren't Rambo.
2.10.2008 6:15pm
Justin (mail):
You know what genocidal countries also do? They maintain security for their heads of state. Clearly, the Secret Service leads to genocide ;)
2.10.2008 6:22pm
Truth Seeker:
If tyranny does come, there's nothing your pop gun can do about it.

At least 3 of our presidents were killed with a pistol and 2 others wounded.
2.10.2008 6:34pm
dave h:
"If tyranny does come, there's nothing your pop gun can do about it."

So I take it we would have a hard time imagining a modern army finding difficulty suppressing a populace with comparatively lesser firepower...
2.10.2008 6:41pm
The River Temoc (mail):
Gun bans do not always lead to genocide... [However,] governments which do perpetrate genocide do work hard to disarm the victims beforehand.

This argument is well and good when applied to unstable countries. But unless you seriously believe that the U.S. government is itching to perpetrate a genocide, this argument is irrelevant in the context of the United States.
2.10.2008 6:51pm
Dave N (mail):
David M. Nieporent,

We have both been around this blog for quite a while. We both know who the trolls are--and responding to trolls is like wrestling with pigs: you both get dirty and the pigs like it.

I find that it works much better to address thoughtful arguments from others with something to say and to ignore those not worth responding to--and that is particularly true of the trolls.
2.10.2008 7:00pm
DJMoore (mail) (www):
A:
Guns can effectively protect individual citizens against other individual citizens.... They cannot be used to effectively resist a state armed with tanks, planes, missiles, etc.
The JPFO brief mentions how a handful of Jews held off the Nazi army for weeks with a handful of guns.

As I wrote here;, where the government is not yet openly tyrannical, small gestures of resistance, such as individuals defending themselves against police with improper warrants, or small militias ridding themselves of a corrupt county government, constantly corrects the government's tendency to oppress the people, so that outright revolution never becomes necessary.
2.10.2008 7:13pm
Carl in Chicago (mail):

A. wrote:
Guns ... cannot be used to effectively resist a state armed with tanks, planes, missiles, etc.

If tyranny does come, there's nothing your pop gun can do about it.


Perhaps you would try to convince the Afghani mujahideen, which formed an insurgency and fought against the Soviet Union and Afghan governments during the Soviet war in Afghanistan. The Soviet army was, at the time, one of the most modern and technologically advanced military on the planet. This resistance "won" when the Soviets pulled out in 1989.

In one respect, I do hear what you are saying. This case is first and foremost about overturning an unconstitutional ban on ordinary handguns. Indeed, an insurgency armed only with handguns would be quite challenged in overcoming a tyrannical government with a modern standing army. But truth be told, arms protected by the 2A are certainly not limited to handguns...

But in another respect, the JPFO brief lays out some fo the broad and underlying principles embodied by the 2A, and hits precisely at what some might argue to be the very "bottom line" reason for why civilian populations must remain armed. In as much as we in America are "fat and happy" with our football, MTV, and enormous wealth, and in a real sense out of touch with some of the horrific realities of humankind elsewhere, this aspect of the 2A has been ignored for a long, long time. The brief by the JPFO is thus a reminder, and a warning, and it's only proper that the warning ought to be heard and understood by the Supreme Court and by the people at large, and heeded accordingly.

From the opening argument of the brief:

"...the simple truth - born of experience - is that tyranny thrives best where government need not fear the wrath of an armed people." (Judge Kozinski dissenting in Silveira v. Lockyer, 9th Circuit Court, 2003)

"This simple observation by Judge Kozinski encapsulates the core issue that forms the basis and the essential nature of the Second Amendment."

Claims that "it can't happen in the United States" or "if it happened in the United States, the people could not resist the military" do not in any way dismiss or even belittle the point made in the brief....that this idea is the core issue that forms the basis and the essential nature of the Second Amendment.

If anything, it should be a stark reminder that we have strayed dangerously far from the very intent and purpose of the Second Amendment. It's a travesty that we are even arguing whether or not the Second Amendment really "means anything", when we should be arguing about how best to go about fulfilling it's critically important purpose.
2.10.2008 8:07pm
Arkady:

A. wrote:
Guns ... cannot be used to effectively resist a state armed with tanks, planes, missiles, etc.

If tyranny does come, there's nothing your pop gun can do about it.


Perhaps you would try to convince the Afghani mujahideen, which formed an insurgency and fought against the Soviet Union and Afghan governments during the Soviet war in Afghanistan. The Soviet army was, at the time, one of the most modern and technologically advanced military on the planet. This resistance "won" when the Soviets pulled out in 1989.


Uh, see Charlie Wilson's War -- in the end, they had more than mere popguns. In fact, initially they were being slaughtered because the CIA was them with (mere) Lee Enfields. Not very effective against Hinds.
2.10.2008 8:29pm
Arkady:
That should be "supplying them with"
2.10.2008 8:30pm
wekt:

A:
Guns can effectively protect individual citizens against other individual citizens.... They cannot be used to effectively resist a state armed with tanks, planes, missiles, etc.

Yeah, that's why our modern military totally destroyed the Iraqi insurgency and that country is at peace now. Oh wait...

If rebelling citizens were geographically separated from those who would accept despotic rule, then it would be simple for a modern military force to crush every single rebel. However, if the patriots are intermixed with the rest of the general populace, then the advantage of modern military equipment is greatly reduced.

Also, if regular guns are insufficient to oppose a standing army equipped with tanks, then that's an argument that bazookas are protected by the Second Amendment.
2.10.2008 9:43pm
DJMoore (mail) (www):
There is, I think, a difference between people defending their home nation against invaders, and citizens defending themselves against fellow citizens attempting oppression. It's not the job of the unorganized militia to invade Canada, but discourage domestic oppression, repel invaders, and provide a pool of trained riflemen for the regular military.
2.10.2008 10:08pm
DJMoore (mail) (www):
Oh, and I meant to say:

Absolutely, Wekt: this does indeed argue for eventually accepting small tactical weapons in civilian hands (although I think we're a long, long way from the court case establishing that, if it ever is). Bazooka, grenades, and the like can only do a very limited amount of damage compared to, say, an anthrax aerosol or a jet bomber.
2.10.2008 10:12pm
federal farmer (www):

Guns can effectively protect individual citizens against other individual citizens (and, of course, allow them to hurt other citizens or themselves). They can be fun, they can be used to get food, and they can give a false sense of security or masculinity. They cannot be used to effectively resist a state armed with tanks, planes, missiles, etc.

If tyranny does come, there's nothing your pop gun can do about it. Either a) the US army is unwilling to use its arms against civilians, armed or otherwise, or b) the civilians lose. The silly fantasy that the populace is or could be comparably armed to a modern army can't be taken seriously. Life isn't a movie, and you and your buddies aren't Rambo.


How to use the vast might of the US Army against an guerilla insurgency? Would you task a jet fighter to bomb my Chicago neighborhood to take out one of my neighbors?

I many ways, the US Army has priced itself out of the market. A great many of the weapons they have would be useless.

I think you suffer from a failure of imagination. Such failures have proven disastrous historically.
2.10.2008 11:44pm
Truth Seeker:
unless you seriously believe that the U.S. government is itching to perpetrate a genocide, this argument is irrelevant in the context of the United States.

It doesn't have to be itching. The second amendment needs to be protected for our children's children's children.
2.11.2008 1:02am
gifted:
The point with the larger weapons is discrimination. I can be much more careful about who I'm blowing up with a bazooka, but anthrax doesn't limit itself very well. A militia weapon must be able to be used efficiently, and only against legitimate targets. Anthrax or nukes don't fill this position, but small artillery or even the jet bomber do. As you go up, it gets harder to discriminate between your legitimate target, and collateral damage. It also becomes much harder for a small, roughly organized militia to efficiently use them.
2.11.2008 1:30am
Elmer:
A well-written brief.

I've been quite busy lately, and had a preference to read the briefs later, if at all, but Mr. Kopel's admonishments not to comment without reading the briefs forced me to delay attending to my own affairs. Though his admonitions seem reasonable, their disparate impacts on the busy and other classes should not be tolerated.
2.11.2008 2:01am
K Parker (mail):
A
Either a) the US army is unwilling to use its arms against civilians, armed or otherwise
And you really think that the presence of zillions of small arms in civilian hands couldn't possibly have any effect on this?
2.11.2008 2:14am
Benjamin Coates (mail):
The River Temoc:

But unless you seriously believe that the U.S. government is itching to perpetrate a genocide, this argument is irrelevant in the context of the United States.

Who says it has to be the US government? There are (almost certainly overblown) claims of organized gang violence in Los Angeles being used for intentional "ethnic cleansing" of Blacks living in mostly-hispanic neighborhoods; The idea that one of the many small, poorer ethnic/cultural/whatever groups that live in LA might be targeted for extermination by another, and the powers that be deciding that it'd be politically easier to pretend the victims are all gang members or something and let it happen isn't terribly far fetched.
2.11.2008 6:13am
Brad Ford (mail):
"The brief argues that the Second Amendment could not possibly have been written to protect the means of resistance to tyranny."

What do they think it was written to do?
1. Make sure we can all go hunting?
2. Make sure Rhode Island can have a "militia."
3. Ensure there were 10 amendments in the Bill of Rights.
2.11.2008 8:36am
Random3 (mail):

I think you suffer from a failure of imagination. Such failures have proven disastrous historically.


Exactly. Small arms in the hands of the people are extremely effective when used to "resist a state armed with tanks, planes, missiles, etc." There are plenty of historical examples of where this has proven true.

One reason for this is that it always requires boots on the ground to subdue and control a country's population. Another is that many soldiers - certainly in the U.S. armed forces - will just not follow orders that require them to essentially commit mass murder. "Say, LT - take your planes and missles and destroy Rochester, will you? The people there are becoming a nuisance what with all of their small arms."
2.11.2008 8:37am
martinned (mail) (www):
L.S.,

I was, for entirely unrelated reasons, reading Dennis v United States (341 US 494), and I came across this little nuggett in the Chief Justice's opinion:


"The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a "right" to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence. The question with which we are concerned here is not whether Congress has such power, but whether the means which it has employed conflict with the First and Fifth Amendments to the Constitution."


(at 501)

I can remember having, in the past, parsed the Constitution for arguments supporting this very position, and it's too bad I didn't know of this precedent at the time.
2.11.2008 9:54am
yankev (mail):

There are (almost certainly overblown) claims of organized gang violence in Los Angeles being used for intentional "ethnic cleansing" of Blacks living in mostly-hispanic neighborhoods; The idea that one of the many small, poorer ethnic/cultural/whatever groups that live in LA might be targeted for extermination by another, and the powers that be deciding that it'd be politically easier to pretend the victims are all gang members or something and let it happen isn't terribly far fetched.
One southern US town (I forget the name) used the 2A to respond effectively to KKK intimidation in the 1950s. The Klan used to drive thru the black section of town and terrorize people. The local minister, with the support of the NRA, organized a rifle club through the Civilian Marksmanship Program. Through the NRA, he enrolled his church members, armed them with subsidized military surplus rifles (Garands if I recall) and trained them. When the Klan drove through and saw black men armed with rifles defending the neighborhood, the night rides came to an end.

Does anyone at VC remember the year or the name of the town?
2.11.2008 9:57am
CWuestefeld (mail) (www):
@The River Temoc:

unless you seriously believe that the U.S. government is itching to perpetrate a genocide, this argument is irrelevant in the context of the United States.

We'll just invoke the seldom-used "pause" control on the Bill of Rights, setting this right aside until it's obvious that we'll need it. I'm sure that those in charge at the time will be happy to change it back to active status so that we can go and reclaim the weapons we handed in.
2.11.2008 10:26am
Arturo (mail):
...no "right" to armed rebellion "where the existing structure of the government provides for peaceful and orderly change" Every tyranny has an election or other "structure" of peaceful and orderly change, but the unarmed don't dare use it...

"No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence." Without any evidence of an act of preparation or perpetration, can mere possession of a gun be a made a criminal "act" of "intention" to overthrow the government by force and violance?

Soldiers with families known and interspersed within a rebelling civilian population may know better than to be even suspected of having fired on civilians local or elsewhere.
2.11.2008 11:09am
wpeak (mail) (www):
On the recurring argument that 2nd amendment arms could not resist a tyranny:

I think this imagining that the 82nd or 1st Cav will be facing down a mob of hunters is very poorly conceived.

First, I would not use Iraq, et al, as an example as it could be argued we are using restraint there that a tyrant might forgo.

That having been said, a Tyrant would find the size of the task, 3.79 million square miles (9.83 million km²) and with over 300 million people, daunting. To so thinly spread ones troops would make them very vulnerable to attack.

The solution would be to either pull all troops out of foreign deployment and or greatly and rapidly increase their size. (Something a volunteer Army might take exception to) Or go with a police state.

Now it should be clear that police vs 2nd amendment weapons are a different matter. US citizens are often better armed and trained than the police. The scenario is both more likely and better for the citizens cause.
2.11.2008 12:22pm
J. F. Thomas (mail):
One southern US town (I forget the name) used the 2A to respond effectively to KKK intimidation in the 1950s. The Klan used to drive thru the black section of town and terrorize people. The local minister, with the support of the NRA, organized a rifle club through the Civilian Marksmanship Program.

Since this was a regular occurence in towns throughout the south in the '50s, for something like this to have happened (the resistance) would have been extraordinary indeed. Remember, about 500 people a year were being lynched in this country--and that was the documented cases.
2.11.2008 1:15pm
Vinnie (mail):
But unless you seriously believe that the U.S. government is itching to perpetrate a genocide, this argument is irrelevant in the context of the United States.


Wouldn't be the first time. We are actually pretty good at it.
2.11.2008 1:27pm
MXE (mail):
But unless you seriously believe that the U.S. government is itching to perpetrate a genocide, this argument is irrelevant in the context of the United States.

No, that is incorrect. Read Prof. Volokh's paper about slippery slopes. The question is not irrelevant just because the currently government is benevolent.

Once the right is stripped away, it becomes easier for any future government to perpetrate such crimes.

Would you repeal the 1st Amendment because (and I think this is correct) the current government has a lot of respect for freedom of speech?
2.11.2008 1:30pm
Jeff the Baptist (mail) (www):
Since this was a regular occurence in towns throughout the south in the '50s, for something like this to have happened (the resistance) would have been extraordinary indeed. Remember, about 500 people a year were being lynched in this country--and that was the documented cases.


Look up the Deacons for Defense and Justice for examples of how the civil rights movement was not only about passive resistance, but also armed active resistance as well.
2.11.2008 1:51pm
Tony Tutins (mail):
I was hoping there would be more than one USCA case to cite on this.
2.11.2008 2:00pm
Floridan:
"How to use the vast might of the US Army against an guerilla insurgency? Would you task a jet fighter to bomb my Chicago neighborhood to take out one of my neighbors?"

I think the history of mankind gives no evidence that this could not happen -- the U.S. military has had no hestitancy to use such tactics in Iraq, nor in other wars.

Obviously this is not confined to the U.S.; just look at the collatoral deaths in conflicts in any number of hotspots, from Palestine to Chechnya to Sri Lanka.
2.11.2008 2:29pm
Dave2L (mail) (www):
There is pretty clearly some failure to understand basic causality principles here. That pre-genocidal governments have aften tried to disarm their population before committing genocide is not evidence of causality. If the US were intent on committing genocide, I doubt they would be that concerned with what the Supreme Court had to say about it.
2.11.2008 3:28pm
wuzzagrunt (mail):
Dave2L, all examples of disarmament leading to democide do not point to the mass murderers sweeping the country of private arms before filling mass graves. I know of no serious historian who suggests that the Weimar Republic had intentions of exterminating the Jews when it began restricting firearms. A weak (or excessively nervous) government disarms the populace in order to preempt political violence, and protect itself and its citizens. The safety of the citizenry is most likely an afterthought--if it is considered at all. Brother Dave Kopel has persuasively made the case that this--and not crime prevention--was the motivation for England's initial flirting with gun control.

A does not always lead to B, but this can create an hospitable environment in which incipient tyrants may gather their forces.
2.11.2008 4:21pm
bonhomme (mail):
J.F.Thomas is completely and utterly wrong about the numbers of lynchings in the U.S. The Tuskegee Institute is probably the very best resource there is for information about the history and numbers of lynchings here in the United States. They list eight lynchings total in the fifties (years 1950-1959 inclusive). No year ever has as many as 500 lynchings. 1892 was the worst year with 230 lynchings (69 white 161 black). In the years 1882 - 1964 there were a total of 4,742 lynchings (1,297 white and 3,445 black). Link.These numbers almost certainly do not record every single lynching done, but it represents the best information to be had. Shame on you J.F.Thomas for your poor misrepresentation of an already damning and disgraceful part of U.S. history.
2.11.2008 4:41pm
Tony Tutins (mail):

That pre-genocidal governments have aften tried to disarm their population before committing genocide is not evidence of causality.

Facilitating genocide is indeed not the same as causing genocide. Similarly, being over 7 feet tall doesn't make you play in the NBA; it just helps.

Germany had a relatively short tradition of firearms ownership. The Weimar registration laws were "reasonable regulation" as Chemerinsky would put it. After Germany was defeated, even the police were disarmed. Germans did not regain the ability to own firearms until 16 years after the war.
2.11.2008 6:09pm
gifted:

First, I would not use Iraq, et al, as an example as it could be argued we are using restraint there that a tyrant might forgo.

That having been said, a Tyrant would find the size of the task, 3.79 million square miles (9.83 million km²) and with over 300 million people, daunting. To so thinly spread ones troops would make them very vulnerable to attack.


I've heard it said that an insurgency in this country would make Iraq look like a cakewalk. We don't have people willing to blow themselves up, but we have a lot of creative and inventive people who would find ways. This isn't so much the size of the country, as the nature of the people and the division that have persisted. Once everything falls apart, we'll be fighting each other only stopping to kill any feds getting in the way. If someone manages to kill the chaos before it gets going, it might not be very bad, but that would be very tricky.
2.11.2008 6:31pm
federal farmer (www):

I think the history of mankind gives no evidence that this could not happen -- the U.S. military has had no hestitancy to use such tactics in Iraq, nor in other wars.


US bombing Iraq or Vietnam is nothing like US bombing US.

We'd have to sink pretty low to get to the stage where we'd carpet bomb our own cities...oh I guess that *is* the point isn't it?
2.11.2008 6:50pm
M. Au-Lim:

One southern US town (I forget the name) used the 2A to respond effectively to KKK intimidation in the 1950s. The Klan used to drive thru the black section of town and terrorize people. The local minister, with the support of the NRA, organized a rifle club through the Civilian Marksmanship Program. Through the NRA, he enrolled his church members, armed them with subsidized military surplus rifles (Garands if I recall) and trained them. When the Klan drove through and saw black men armed with rifles defending the neighborhood, the night rides came to an end.

Does anyone at VC remember the year or the name of the town?

Monroe, NC, 1957. The man you're thinking of Robert F. Williams

Background of the incident
Biography
2.11.2008 7:45pm
gifted:
We also mustn't forget the "Battle of Athens, Tennessee."
2.11.2008 11:16pm
TruePath (mail) (www):
Huh?

Implicitly the argument here is that hitler engaged in horrible genocide and that (unconvincingly) that somehow a right to bear arms might have prevented/lessened the horror of the holocaust. But this is a policy argument based on an event which hadn't happened when either the 2nd or 14th amendments were passed. Presumably the only way one could feel this sort of consideration could be relevant to the constitutional question is by adopting some sort of living constitution type view that is extreme enough to urge judges to directly weigh policy considerations.

Sure in theory this might be a fully general argument but given the explicit mention of the Jews in the warsaw ghetto and german occupied territories in the context of who is writting the brief puts the holocaust front and center, a fact your title implicitly acknowledges. Even if you believe this kind of policy consideration is relevant this brief seems a clear cut example of an argument whose prejudicial value overwhelms it's probative value. Effectively this brief is the (subtler, more sophisticated) equivalent of the child of a rape victim asking a supporter of choice for rape victims, "Do you think we would be better off if I had been aborted?" That is it doesn't compell so much via logic but by making the other side feel bad about forcefully debunking the argument.

In particular I think part of the reason why anti-gun lobbys haven't convincingly responded is that the the best (policy) counter argument is that even if the holocaust suggests gun ownership would reduce deaths in a genocide the probability of this happening again multiplied by the number saved makes it insignificant compared to the effect on criminal violence. However, because of the personal emotional nature of the issue this kinda sounds mean and dismissive of jewish suffering during the holocaust.

However, the brief doesn't even give good reasons to believe that gun ownership reduces the harms of genocide. Noting that those with guns were more likely to survive the holocaust than those without no more demonstrates that more guns would minimize genocidal harms than the observation that people with lots of money are less likely to starve during famine argues for the government to print lots more money. Not only is there the general worry about correlation vs. causation (those with guns may just have been more motivated/active/scared) but the armed resistance of some members of a minority in a potential genocide might very well generate a backlash worsening/speeding up the ethnic cleansing.

Also I think there are important distinctions this brief misses. Namely that while i think the framers clearly designed the 2nd ammendment to protect against tyranny they may have had the tyranny of the king over his people in mind not that of the people over the people. Also that genocide in 1st world democracies like germany (or hypothetically the US) is more likely to occur by the gradual revocation of rights rather than immediate ethnic conflict as one saw in Rwanda. Given that any minority in the US that is at risk of genocide would have it's right to bear arms taken away far in advance how could this right protect them against genocide?. If the idea is that they would violently resist the removal of their gun rights why wouldn't they do that now if the supreme court decides against gun rights?
2.12.2008 12:52am
K Parker (mail):
Yankev,

As Jeff the Baptist points out, The Deacons for Defense has quite a lot to say on the general subject, though it doesn't deal (as far as I can remember) with the specific incident you have in mind. Plus, didn't Condoleeza Rice talk about her father participating in an armed self-defense group?

TruePath,

Surely your opening word/sentence/paragraph says it all.
2.12.2008 3:29am
federal farmer (www):

Namely that while i think the framers clearly designed the 2nd ammendment to protect against tyranny they may have had the tyranny of the king over his people in mind not that of the people over the people.


Not much of a history buff are you?
2.13.2008 12:48am
TruePath (mail) (www):
Huh, the framers clearly worried about the tyranny of the majority but it isn't clear to me that they thought force was the way to resist this.
2.15.2008 12:45pm