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A Layman's Guide to Heller (unabridged):
Thanks to Jonathan for noting my Wall Street Journal column yesterday. I was up at 4am and in line at 5am to be number 19 in the Supreme Court bar line. It ended up being sort of fun. The people around me were interesting and when the sun finally rose, I saw lots of people I knew with whom to chat. The argument was well worth attending also. I may comment on it later if I can. Here is me, taken by Gary O'Connor with his IPhone in the near dark:

Heller photo

In the meantime, here is the original version of my op-ed for the WSJ, which ran the requested length of 1200 words. They then found themselves in a space crunch due to some market stories. (What sort of paper do they think they are running?? Where are their priorities??) Consequently, they cut my essay down to 800 words. It is not easy to cut a piece by 1/3, but their editing was skillful and clever. I thought some VC readers would find it instructive to compare the the published version with the original to see how the editors accomplished this, and what they decided to leave on the cutting room floor (Note that the unpublished version is unedited and may contain glitches for the pedants in the crowd):

A LAYMAN'S GUIDE TO HELLER

Today, the Supreme Court will hear oral arguments in the case of Heller v. District of Columbia, a suit brought by several DC citizens contending that the ban on the possession of operable firearms inside one's home violates the Second Amendment. The Circuit Court of Appeals for DC agreed and held the ban to be unconstitutional. However it is decided, Heller is already historic. For the first time in recent memory, the Supreme Court will consider the original meaning of a significant passage of the Constitution unencumbered by its own prior decisions; and the majority and dissenting opinions in this case will be taught in law schools for years to come. Here's a layman's guide the significance of the case—and its limits.

Heller Will be Decided on Originalist Grounds. Among law professors, enforcing the original meaning of the Constitution is highly controversial. Critics of originalism deny that we should be ruled by the "dead hand of the past." They prefer following Supreme Court precedents that may or may not be consistent with original meaning. Any justice who today professes a commitment to originalism is branded a radical; and all Supreme Court nominees are now grilled on their commitment to the doctrine of stare decisis. But what are old precedents if not the "dead hand" of dead justices?

Significantly, then, both sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual "right to keep and bear arms" that "shall not be abridged." In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intentions of the framers of the Second Amendment was to protect the continued existence of "a well regulated militia," the right it protects was limited to the militia context.

So one thing is certain. Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution. Heller reveals that today's debate over originalism is really about whether old nonoriginalist Supreme Court decisions should supercede the Constitution's original meaning when doing so leads to results that nonoriginalists like better.

The Second Amendment Protects an Individual Right. In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called "collective right" of states to preserve their militias—notwithstanding that, everywhere else in the Constitution, a "right" of "the people" refers to an individual right of persons and the Tenth Amendment expressly distinguishes between "the people" and "the states." Beginning in the 1980s, a deluge of scholarship showed why the collective rights interpretation is false.

Now even the District asserts the new theory that, while this right is individual, it is "conditioned" on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won't be based on a "collective" right of the states. This is also true of the approach advanced by U.S. Solicitor General Paul Clement: find an individual right but then still largely defer to the judgment of the District (which is not how the Court protects other individual rights). Still, a ruling upholding an unconditioned individual right to arms and invalidating the ban is unlikely to have much affect on current gun laws. Here's why.

Heller is a Federal Case. Because the District of Columbia is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government. Before a state or municipal gun law can be challenged, the Supreme Court will have to decide that the right to keep and bear arms is also protected by the Fourteenth Amendment, which limits state powers. This conclusion is not forgone.

Nowadays, the Court asks whether a particular rights is "incorporated" into the Due Process Clause of the Fourteenth Amendment, an unpopular doctrine among some conservatives. Of course, after recognizing an unconditioned individual right in Heller, affording it less protection from states than other enumerated rights now receive would be awkward—especially given the overwhelming evidence that the right to keep and bear arms was among the "privileges or immunities of citizens" to which the Fourteenth Amendment refers. Indeed, those who wrote the Amendment were concerned about enabling black freeman and white Republicans in the South to protect themselves from violence, including terrorism by local militias.

Heller Involves a Complete Ban on Operable Firearms in the Home. DC not only bans all handguns, it makes it illegal to possess in one's home any operable firearm. No state has a comparable law; only scattered municipal firearms bans would be immediately threatened. And the Court would still have to decide how much scrutiny to give gun regulations that fall short of complete prohibition. Furthermore, the DC gun ban is only being challenged as it applies inside the home. So a ruling against DC would not immediately affect most laws governing firearms in other venues.

Most Existing Gun Regulations Would Likely Be Upheld. Under current Supreme Court doctrine, even the First Amendment rights of speech and assembly are subject to reasonable time, place, and manner regulations. So too would gun rights. However, because political support for the right to keep and bear arms is so powerful, only gun laws with pretty plausible justifications actually get enacted—e.g., laws against felons owning firearms. Therefore, even if the Court decides to scrutinize federal and state regulations, rightly or wrongly, most would likely be upheld.

Then Why Is Heller So Important? Although the implications of striking down the DC gun ban are limited, a decision upholding an unqualified individual right in Heller would still be significant. For one thing, it would be a vindication of originalism. More importantly, the private ownership of firearms is a hallmark of American liberty. The right to arms is so politically popular, even Democratic candidates for president feel they must support it—albeit only for hunters. Still, while most gun control activists now deny that they favor banning all firearms, their strategy seem to be to incrementally achieve prohibition by a series of statutes and tort suits that raise the costs of gun ownership and undermine the feasibility of using guns in self defense. Once the Supreme Court recognizes an individual right, lower court challenges to pretextual regulations that may not currently be brought may well be allowed.

But gun rights supporters should also be careful what they wish for. While a Supreme Court decision favoring gun rights in Heller might induce more legislative caution before enacting gun laws, it could also allow legislators to shift responsibility for assessing constitutionality to the courts. And supporters of the gun rights groups that have so effectively protected the right to arms might become apathetic thinking the courts would protect them. Now that Heller is before the Court, however, these risks are worth running. To shrink from enforcing a clear mandate of the Constitution—as, sadly, the Supreme Court has often done in the past—would create a new precedent that would be far more dangerous to liberty than any weapon in the hands of a citizen.

Related Posts (on one page):

  1. A Layman's Guide to Heller (unabridged):
  2. Randy Barnett on Heller in WSJ:
Temp Guest (mail):

To shrink from enforcing a clear mandate of the Constitution—as, sadly, the Supreme Court has often done in the past—would create a new precedent that would be far more dangerous to liberty than any weapon in the hands of a citizen.


Weapons in the hands of a citizen are no threat to liberty. Government preventing citizens from having the means to protect life and property is the ultimate threat to liberty.
3.19.2008 11:34am
U.Va. 3L:
Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution.

I don't see how the second sentence follows from the first. Doesn't this just show that both sides thought originalist arguments gave them the best shot at winning? I'm not seeing how originalism's objective propriety is a consequence of Heller being decided on originalist grounds.
3.19.2008 11:35am
Tony Tutins (mail):
The WSJ's skillful editing shows it's atypical among newspapers, because it understands gun issues; the norm would be, for example, to describe a pistol or even a revolver as an automatic weapon. By not caring if they get it right, some journalists seem almost proud of their gun ignorance.

So, what did Justice Breyer really ask yesterday? Today's NYT article says he referred to a Massachusetts law that prohibited keeping loaded weapons in the home because of the risk of fire, analogizing it to DCs handgun ban because both laws promoted safety. As I heard the argument, the law merely prohibited storing gunpowder on upper floors of buildings. What really happened in court? Was the description of the Massachusetts law really bent beyond recognition?
3.19.2008 11:49am
The Ghost of Xmas Past (mail):
Just one question Randy, and be honest:

Were you packin'?

:)
3.19.2008 11:54am
Bama 1L:
I'm with U.Va. 3L. It's quite a reach to claim that the originalist briefs in Heller vindicate originalism generally and thus make some important contribution to the debate over constitutional interpretation. As you point out, both sides made originalist arguments because they had nothing else to work with. I don't see how this speaks to originalism in, for instance, Commerce Clause jurisprudence.
3.19.2008 12:06pm
Martinxyz (mail):
As a non-expert on constitutional methodology (and even less of one on gun law), I'd like to ask a question about the practical role of originalism in Heller.

In many areas of consitutional law there is a very well developed body of precedent (by "very well developed" I mean large and conceptually elaborate, not necessarily correct or well reasoned). This makes it easier to be non-originalist because of the availability of precedent and concepts to work from and harder to be originalist because of claims of settled expectations etc.

Is this less true in the 2d amendment area, and particularly on the base issue of individual gun rights?

For comparison, are there other areas of currently active constitutional litigation with limited precedental development? What jurispurdential approaches are used by practical constitutional litigators in these areas?
3.19.2008 12:06pm
Brett Bellmore:
"So one thing is certain. Whoever prevails, Heller will be an originalist decision."


Well, it's going to claim to be an originalist decision. But if Kennedy's remarks during the oral argument are any guide, there's not much chance of it actually being originalist, since the Justice at the margin simply isn't willing to accept a constitutional right to own assault rifles.

Well, a constitutional right to arms for hunting and self defense isn't too bad, even if it's not what Madison wrote. I just hope the Court is willing to enforce it, instead of just announcing it and then leaving it dead.
3.19.2008 12:10pm
tarpon (mail):
Great article ...
3.19.2008 12:38pm
Uh_Clem (mail):
I'm with U.Va. 3L and Bama 1L.

I don't see the connection. Seems to me to be argument by juxtaposition. Just because both sides in this case are using a particular line of argument doesn't imply that it is correct or preferred in all situations. Or even this one.

I don't get it.
3.19.2008 12:41pm
Eric Muller (www):
Randy, your work in this area has been influential and inspired. It must have been quite meaningful for you to be in attendance.
3.19.2008 12:48pm
Tony Tutins (mail):

For comparison, are there other areas of currently active constitutional litigation with limited precedental development?

No.

The bulk of civil rights law is very different now from the last time the Supreme Court ruled on gun rights. Public schools could offer religious instruction (Not changed till McCollum). Chinese kids were colored, and could be sent to the colored schools without violating equal protection.(Gong Lum v. Rice). Sexually explicit books could still be banned on the grounds they might deprave or corrupt vulnerable youth. In contrast, all that Miller held was that the NFA's requirement of a tax stamp for possession of a sawed-off shotgun did not violate the Second Amendment.
3.19.2008 12:59pm
J. F. Thomas (mail):
The right to arms is so politically popular, even Democratic candidates for president feel they must support it—albeit only for hunters. Still, while most gun control activists now deny that they favor banning all firearms, their strategy seem to be to incrementally achieve prohibition by a series of statutes and tort suits that raise the costs of gun ownership and undermine the feasibility of using guns in self defense.

You're an expert on gun rights and you stoop to this facile, stereotypical and completely untrue characterization of those who support gun control?

I'll just throw out that all gun-rights advocates are all a bunch of survivalist rednecks who just want to arm themselves to the teeth and start a race war.
3.19.2008 1:32pm
psychdoc (mail):
I'll just throw out that all gun-rights advocates are all a bunch of survivalist rednecks who just want to arm themselves to the teeth and start a race war.


That's not true; I don't want to start a race war.
3.19.2008 1:37pm
jheath:
"For comparison, are there other areas of currently active constitutional litigation with limited precedental development?"

There is a sizable body of precedent that says state militia laws can be preempted by Congress. It's a settled issue, entirely consistent with other areas of federalism. So using orginialism to address the question of whether the 2nd Am is a feature of individual rights as opposed to militia law is inane and unnecessary. The 2nd Am is decidely not a feature of militia law, and no meaningful right could be conditioned on state militia laws that can be federally preempted. The law is clear on this, and for the cream of the legal profession to be arguing like theologians over what Madison thought about Daniel Boone's right to hunt is a sorry substitute for legal analysis.
3.19.2008 1:48pm
Kevin P. (mail):

J. F. Thomas:

Randy Barnett:
Still, while most gun control activists now deny that they favor banning all firearms, their strategy seem to be to incrementally achieve prohibition by a series of statutes and tort suits that raise the costs of gun ownership and undermine the feasibility of using guns in self defense.

You're an expert on gun rights and you stoop to this facile, stereotypical and completely untrue characterization of those who support gun control?

You are the gun control supporter who for the longest time defended the mass confiscation of firearms from private homes during Hurricane Katrina. Please excuse us if we remember this when you deny that you want to ban all guns or make ownership of them so difficult that they are practically banned.


I'll just throw out that all gun-rights advocates are all a bunch of survivalist rednecks who just want to arm themselves to the teeth and start a race war.

I am actually a brown skinned immigrant who just wants to arm himself to the teeth. I go shooting from time to time at a rifle range run by a survivalist redneck. He hasn't gotten your message about the race war - perhaps you might want to actually, you know, SPEAK to him about it. In any case, I figure that thanks to being armed to the teeth, I can prevail in any race war or at least sell my life very dearly :-) How about you?
3.19.2008 2:03pm
eyesay:
Temp Guest wrote "Weapons in the hands of a citizen are no threat to liberty." That depends on the citizen and who is nearby. Criminals are citizens, and when criminals have weapons, they are a threat to the liberty of others. Regardless of the merits of Heller v. District of Columbia, the fact remains that thousands of Americans are killed each year with handguns, and many times more injured, and the majority of the persons pulling the trigger were not criminals before they did so. They were children, or angry spouses, or people who tried to protect themselves from an "intruder" who turned out to be a friend or family member with an innocent reason to be there.

This is not to say what the decision in Heller will be or what it ought to be. It is simply to say that guns are dangerous, and many times, people have guns on the theory that having a gun will make them safer, only to find out that their gun was used to kill or injure someone innocent.
3.19.2008 2:12pm
Arkady:

Heller is a Federal Case. Because the District of Columbia is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government. Before a state or municipal gun law can be challenged, the Supreme Court will have to decide that the right to keep and bear arms is also protected by the Fourteenth Amendment, which limits state powers. This conclusion is not forgone.

Nowadays, the Court asks whether a particular rights is "incorporated" into the Due Process Clause of the Fourteenth Amendment, an unpopular doctrine among some conservatives.


I'm looking forward to Justice Thomas's opinion.
3.19.2008 2:12pm
Glenn W. Bowen (mail):

That depends on the citizen and who is nearby. Criminals are citizens, and when criminals have weapons, they are a threat to the liberty of others. Regardless of the merits of Heller v. District of Columbia, the fact remains that thousands of Americans are killed each year with handguns, and many times more injured, and the majority of the persons pulling the trigger were not criminals before they did so. They were children, or angry spouses, or people who tried to protect themselves from an "intruder" who turned out to be a friend or family member with an innocent reason to be there.


probably a strawman to the argument here, but anyway:

the biggest killer of all is car accidents- but that's just the cost of doing business.

children: then, drowning, bicycles

living in a free society involves risk.
3.19.2008 2:19pm
common sense (www):
As far as the Mass powder control law, yes, Justice Breyer tried to use that fire control regulation to justify the DC ban, saying that fires are the same as crime waves. Justice Scalia then jumped in, and pointed out that Mass. wasn't restricted by the 2nd Amend at the time, so the law doesn't really mean anything.
3.19.2008 2:20pm
MXE (mail):
You're an expert on gun rights and you stoop to this facile, stereotypical and completely untrue characterization of those who support gun control?

Prof. Barnett isn't talking about everyone who supports gun control; he's talking about gun control activists. I take that to mean the likes of Brady, VPC, Rosie, etc.

The former two support complete prohibition of at least handguns, and Rosie is on record saying she thinks anyone owning any sort of firearm should be imprisoned. Heck, even Barack Obama expressed support for the idea of banning all semiautomatics.

Okay, so many some of them think you should be able to own a double-barreled shotgun with proper licensing. I don't think calling their agenda basically prohibitionist is all that unfair.
3.19.2008 2:22pm
MXE (mail):
(Sorry, that should be "so maybe some of them" in the last paragraph.)
3.19.2008 2:23pm
Philip F. Lee (mail) (www):
I don't understand:

But gun rights supporters should also be careful what they wish for. While a Supreme Court decision favoring gun rights in Heller might induce more legislative caution before enacting gun laws, it could also allow legislators to shift responsibility for assessing constitutionality to the courts.

Surely you don't think legislators (generally) exercise caution before enacting gun laws today, do you?

If you do, I'd like to see your evidence for caution in NY, MA, MD, CA and the evidence for caution in the Federal legislation for NICS improvement this past year, in the Federal Assault weapons ban and in any other legislation you think caution was exhibited.
3.19.2008 2:35pm
xx:
"Heller reveals that today's debate over originalism is really about whether old nonoriginalist Supreme Court decisions should supercede the Constitution's original meaning when doing so leads to results that nonoriginalists like better. "

I feel like I'm clamoring on with the three commenters who've already addressed this point, but this logic makes no sense.

If everyone is relying on originalism because there is a clean slate precedent wise, all it proves is that everyone defaults to originalism in the absence of precedent. "Nonoriginalists" aren't being inconsistent by failing to follow precedent if there isn't any precedent on point.
3.19.2008 2:47pm
Vinnie (mail):
eyesay:

majority of the persons pulling the trigger were not criminals before they did so.



Would you provide some sources and numbers here?
3.19.2008 3:16pm
Brett Bellmore:
I would dispute the notion that anybody in that court was engaged in "originalism". Some of the amicus briefs could be considered exercises in such, but even Gura was more concerned with getting the Court to uphold SOMETHING, than explicating what the 2nd amendment actually means. The District's efforts could only be considered originalism in the same sense creation "science" is science.
3.19.2008 3:25pm
byomtov (mail):
Still, while most gun control activists now deny that they favor banning all firearms, their strategy seem to be to incrementally achieve prohibition by a series of statutes and tort suits that raise the costs of gun ownership and undermine the feasibility of using guns in self defense.

Whereas gun rights activists are all full of sweet reasonableness on the question of regulations?

I think it's fair to say that there's plenty of extreme views on all sides here.
3.19.2008 3:35pm
Doc W (mail):
J. F. Thomas writes: "You're an expert on gun rights and you stoop to this facile, stereotypical and completely untrue characterization of those who support gun control?"

Actually, the passage you quoted looks to me like a fair assessment of anti-gun activists' current strategy based on observation of their activity. They've been losing in Congress and the state legislatures. For several years now, they (folks like Bloomberg for example) have been pursuing these lawsuits against manufacturers and dealers, even though almost all the suits get thrown out.

Eyesay: Can you supply a reference for the statement that the majority of people "pulling the trigger" "were children, or angry spouses, or people who tried to protect themselves from an "intruder" who turned out to be a friend or family member with an innocent reason to be there?" Under "children," are you including under-21 members of street gangs? Under "angry spouses," are you including self-defense cases?

I ask, because I was under the impression that a substantial proportion of murderers have violent records, and in fact a significant fraction of victims do too, overall.

Of course, even in cases like some of these campus and mall shootings where the perpetrator did not have a criminal record, it is not at all clear that more gun control legislation would have kept them from getting weapons, but it is quite clear that gun bans can prevent effective self-defense by law-abiding citizens. So your claim, if accurate, is of limited relevance to the public policy issue, and of even more limited relevance to the Constitutional issue.
3.19.2008 3:50pm
DG:
{Whereas gun rights activists are all full of sweet reasonableness on the question of regulations?

I think it's fair to say that there's plenty of extreme views on all sides here.}

You have missed the point. JF Thomas misses the point intentionally, because he's a troll. The point was not that gun control activists are extreme in their views - most activists are. Its that even gun control activists have had to (seemingly) become less abolitionist because gun abolition is not a popular argument, nationally.
3.19.2008 3:54pm
eyesay:
Vinnie: Thank you for asking. Actually, my assertion "majority of the persons pulling the trigger were not criminals before they did so" is true only if suicide deaths are included. Suicide is something that many people care about, but it was misleading on my part to omit the word.

Here is some info from the website of Handgun Control, Inc.:

http://www.bradycampaign.org/issues/gvstats/firearmoverview/
In 2004, 29,569 people in the United States died from firearm-related deaths -- 11,624 (39%) of those were murdered; 16,750 (57%) were suicides; 649 (2.2%) were accidents; and in 235 (.8%) the intent was unknown.

Note that the term "murder" here is not used in a legal sense, but simply to designate cases where one person killed another person not accidentally. I do not know what portion of these "murders" were not criminals before they did so, but I'm confident that most of those committing suicide were not criminals.

Another interesting statistic:
http://www.bradycampaign.org/issues/concealedcarry/
The number of crime victims who successfully use firearms to defend themselves is quite small. According to the FBI Uniform Crime Reports and the Centers for Disease Control, out of 29,569 Americans who died by gunfire in 2004, only 229 were shot in justifiable homicides by private citizens with firearms.

I realize that sometimes, innocent persons may protect themselves from criminals merely by brandishing a weapon, but the fact that only 229 handgun deaths in 2004 were criminals shot in self-defense leads me to question how useful handguns are to ordinary civilians in in protecting themselves from criminals.

Brady Campaign Domestic Violence page
In 2004, 1,159 women were killed by their intimate partners, accounting for over 30% of all murders of women, and of that 1,159, 52% were killed by guns.

That is a lot of people dying because a loved one, regrettably, had a gun and used it in a moment of passion.
3.19.2008 4:21pm
xx:
Eyesay: None of your statistics seem particularly responsive to Vinnie's request. I am guessing that if you identified every person who has committed a crime involving the dischrage of a firearm, at least half of them have committed at least one other crime prior to the gun crime. None of your studies seem to indicate otherwise, though I'd be interested to know if there are studies that actually support your position.
3.19.2008 4:28pm
Brett Bellmore:
<blockquote>
Note that the term "murder" here is not used in a legal sense, but simply to designate cases where one person killed another person not accidentally.
</blockquote>

In other words, defining lawful self defense out of existance.

<i>"but the fact that only 229 handgun deaths in 2004 were criminals shot in self-defense"</i>

Leaving aside the fact that you don't have to kill somebody to defend yourself from them, (Those Brady folks are awfully bloodthirsty, if you ask me.) I hope you're aware that the federal statistics on self defense shootings are seriously screwed up? They're based on initial police reports, not final ajudications. Unless the police decide on the spot to report it as self defense, it gets listed as murder in the federal statistics.
3.19.2008 4:51pm
Doc W (mail):
"Note that the term "murder" here is not used in a legal sense, but simply to designate cases where one person killed another person not accidentally."

So all cases of self-defense killing and justifiable homicide by police are included in the category of "murder?"

"The number of crime victims who successfully use firearms to defend themselves is quite small. According to the FBI Uniform Crime Reports and the Centers for Disease Control, out of 29,569 Americans who died by gunfire in 2004, only 229 were shot in justifiable homicides by private citizens with firearms."

So unless you shoot and kill someone, it doesn't count as a successful defense? If you shoot and wound an assailant it doesn't count? If you shoot and scare the assailant away, it doesn't count? If you display the gun and the assailant runs away, it doesn't count? One may be sure that these things happen vastly more often than 229 times per year. Research by Gary Kleck indicated that guns are used self-defensively over a million times a year.

That is one reason why I have no respect for the Brady bunch and their anti-gun comrades.
3.19.2008 4:51pm
Doc W (mail):
Ok, looks like I'm too slow on the draw to add much to the conversation here.
3.19.2008 4:53pm
Glenn W. Bowen (mail):

Here is some info from the website of Handgun Control, Inc.:


**spit take**

sorry.
3.19.2008 5:36pm
Tony Tutins (mail):
the fact that only 229 handgun deaths in 2004 were criminals shot in self-defense leads me to question how useful handguns are to ordinary civilians in in protecting themselves from criminals.

My cousin openly carried a handgun for thirty years without killing anyone with it. Would you conclude from the lack of slaughter that policemen don't need handguns?

the majority of the persons pulling the trigger were not criminals before they did so. ... I'm confident that most of those committing suicide were not criminals.

First, do you not see the intellectual dishonesty in counting suicides with homicides? Someone who has made up their mind to end their lives seldom takes others with them -- when murder-suicides do occur, these incidents make the news.

Second, although we may deplore the tragic choice of suicide, and although we as a society should be providing help and alternatives, suicide is essentially an exercise of bodily autonomy. Often the choice is rational: the highest suicide rate group among males is men 75 and older. They have lived full lives, and may be facing debilitating or terminal illness. Euthanasia is legal in only one state. In the absence of legalized euthanasia, insisting that elderly men prolong their suffering to die naturally is mere cruelty.

Third, the majority of men choose firearms likely because they are a swift and certain means of suicide.
3.19.2008 5:48pm
Clayton E. Cramer (mail) (www):

The number of crime victims who successfully use firearms to defend themselves is quite small. According to the FBI Uniform Crime Reports and the Centers for Disease Control, out of 29,569 Americans who died by gunfire in 2004, only 229 were shot in justifiable homicides by private citizens with firearms.

I realize that sometimes, innocent persons may protect themselves from criminals merely by brandishing a weapon, but the fact that only 229 handgun deaths in 2004 were criminals shot in self-defense leads me to question how useful handguns are to ordinary civilians in in protecting themselves from criminals.
The problem with these numbers is that:

1. They are based on initial charges. It is quite common for people charged with manslaughter or murder to be freed once the investigation is complete, or at trial. As an example, Time magazine's article "Seven Deadly Days" found only 12 instances of gun self-defense in a week in the whole U.S. But a year later, they came back, and found there were now 26 such instances--because at least 14 of those originally charged with a crime had been found to be defensive. And there were still cases working their way through the courts. I doubt that many of them were going to be found defensive, but it was possible.

2. The FBI's statistics include only justifiable homicides--not excusable homicides--and the FBI is pretty particular about this.

3. The FBI's statistics on this tend to be underreported, because police departments are more focused on crimes than non-crimes.

And as others have pointed out, guns are often used in defensive capacities that don't kill the bad guy. Oddly enough, law-abiding adults tend to shy away from killing a criminal if they can. If you think guns aren't used very often for self-defense, visit the Civilian Gun Self-Defense Blog where we link to every news account that we can find of a civilian using a gun in self-defense. Two incidents so far on March 19; three on March 18;
one on March 17--and remember, these are the ones that came to the attention of the news media.
3.19.2008 5:55pm
Clayton E. Cramer (mail) (www):

Eyesay: None of your statistics seem particularly responsive to Vinnie's request. I am guessing that if you identified every person who has committed a crime involving the dischrage of a firearm, at least half of them have committed at least one other crime prior to the gun crime. None of your studies seem to indicate otherwise, though I'd be interested to know if there are studies that actually support your position.
Most unlikely. The last data that I can find that addresses this question are FBI studies in 1971 and 1975 of those charged with murder. About 40% of those charged had previous felony convictions. About 1/3 of U.S. murders are typically committed by minors (who can't legally buy a gun, and in many states, can't legally possess one). About 5% of U.S. murders in 1991 were by mentally ill persons who had stopped taking their medications.

There are people who suddenly go from normal, law-abiding, mentally health to murderer, but they are pretty exceptional cases.
3.19.2008 5:58pm
Clayton E. Cramer (mail) (www):


The right to arms is so politically popular, even Democratic candidates for president feel they must support it—albeit only for hunters. Still, while most gun control activists now deny that they favor banning all firearms, their strategy seem to be to incrementally achieve prohibition by a series of statutes and tort suits that raise the costs of gun ownership and undermine the feasibility of using guns in self defense.


You're an expert on gun rights and you stoop to this facile, stereotypical and completely untrue characterization of those who support gun control?
You are right: this only described the Clinton Administration, the California Democratic Party, and the lawyers who filed negligent marketing suits--just a bunch of marginalized sorts of no relevance to American politics.


I'll just throw out that all gun-rights advocates are all a bunch of survivalist rednecks who just want to arm themselves to the teeth and start a race war.
I don't know any survivalist rednecks at all, and the only people that seem intent on starting a race war these days are people like Rev. Wright. Admittedly, the average NRA member that I know is a professor, so I may not know a typical population. But unlike your imagined survivalist rednecks, the describe you denigrate above describes elected Democrats across America.
3.19.2008 6:08pm
J. F. Thomas (mail):
You are the gun control supporter who for the longest time defended the mass confiscation of firearms from private homes during Hurricane Katrina. Please excuse us if we remember this when you deny that you want to ban all guns or make ownership of them so difficult that they are practically banned.

This is typical of the distortion and mischaracterization of my, and the opinion of so many people who support reasonable and sane gun control laws (you either support no restrictions or you want to ban all guns), that I was complaining about.

I never defended the "mass confiscation" of firearms after Katrina--in fact I stated clearly that it was an overreaction and unwise. I merely complained that the confiscation was blown out of proportion and used as a propaganda tool to push through an extremely stupid piece of federal legislation.

That you characterize the incident as a "mass confiscation" just shows that you have swallowed the lies of the NRA. That you continue to claim that I defended the confiscation shows that you deliberately ignored the point I was trying to make or are too dense to appreciate it.
3.19.2008 6:15pm
galeH (mail):
bymomtov:

Referring to "Gun rights activists [being] full of sweet reasonableness on questions of regulations?"

Well...yes actually. Thank you for noticing. Well (self) regulated armed citizens are also trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent. That is why we are sweet.

You say "I think it's fair to say that there's plenty of extreme viewpoints on all sides here."

Hummmm...Attempting to preserve what was seen at the time of the founding of the republic as a natural right of citizens is an extreme viewpoint? Check.

Attempting to preserve the plain, and historically supported meaning of the 2A, as against a "meaning" invented in the mid-20th century is an extreme viewpoint? Check.

Attempting to preserve a right to self preservation from those who would kill innocents for no reason except greed, rage, indifference, revenge, mental defect, and other irrational traits of murderous thugs is an extreme viewpoint? Check.

Attempting to restrain--by peaceful discussion, rational argument, assembly, and petition--arrogant, fear mongering politicians from taxing, suing, regulating, demonizing, and prosecuting law abiding citizens is an extreme viewpoint? Check.

Attempting to convince others that passing more laws for criminals to ignore, and that do not reduce gun violence, and is an infringement on our 2A rights, is an extreme viewpoint? I think I am beginning to understand. So...Check.

Now that I have seen the light regarding my extreme viewpoints, I shall forthwith make an appointment with an approved re-education specialist.

Don't want to be extreme.

Cordially,

gnholb
3.19.2008 6:43pm
eyesay:
galeH: Do you seriously deny what America would be like if the gun nuts got everything they want?

- No limits on number of guns purchased per month. But one gun is sufficient to not infringe on the right to bear arms, and those buying many weapons each month are likely to have criminal purposes. Law-abiding gun owners would be less safe.

- No background checks, especially at gun shows.

- No record of who bought what.

- No limit on automatic weapons.

- No limit on types of bullets, including hollow-point bullets.

- No limit on caliber.

- No limit on concealed weapons in public.

- No limit on bullet substance. Fill our environment with lead.

That's just off the top of my head. There are people who advocate each and every one of these extreme points.
3.19.2008 8:33pm
Gammer Gurton (mail):
Try this on for size: the deep tap-root of the 2nd Amendment--as we know it today--is the right to privacy.

Ok, Brandeis would be shocked. Scalia too. Likewise, originalists everywhere.

But, if you step into liberal-land, and accept the notion of the privacy-right and the theoretical foundations thereof, the 2nd Amendment takes its rightful place as an important and necessary component of the seamless web of privacy that the Bill of Rights were all about.

You guys can make the technical arguments.

I'm just a simple, barefoot, retired banking lawyer.
3.19.2008 8:45pm
Toby:
eyesay

Yeah, but after I spent all my disposable income on guns for two or thrree months, I'd probably switch to food. Guns are to the certain modern urbanits what sex was to Victorians: shocking, unmentionable, and obsessive.
3.19.2008 8:53pm
Brett Bellmore:

- No background checks, especially at gun shows.

- No record of who bought what.

- No limit on automatic weapons.

- No limit on types of bullets, including hollow-point bullets.

- No limit on caliber.

- No limit on concealed weapons in public.

- No limit on bullet substance. Fill our environment with lead.



Wow, sounds like the America of my childhood. Except you left out the part about minors being able to by ammo in hardware stores, and 20mm anti-tank rifles being advertised mail order in the backs of comic books.

A real hell-hole, I wonder how we survived that insanity?
3.19.2008 9:12pm
Kevin P. (mail):
eyesay:

This is what happens when you get your talking points from the Brady Campaign, failing masters of obfuscation and half truth.


galeH: Do you seriously deny what America would be like if the gun nuts got everything they want?

- No limits on number of guns purchased per month. But one gun is sufficient to not infringe on the right to bear arms, and those buying many weapons each month are likely to have criminal purposes. Law-abiding gun owners would be less safe.

This has been the case in most states forever.


- No background checks, especially at gun shows.

The laws are no different inside a gun show than outside a gun show. Dealers have to conduct background checks. Private citizens selling their own guns don't. Not that criminals obtain guns through background checks, anyway.


- No record of who bought what.

Yes, like criminals keep good records when they buy guns on the black market. In fact, registration requirements have been held to violate the self-incrimination rights of criminals, leaving only law abiding citizens to abide by them.


- No limit on automatic weapons.

Agreed. Have you heard lately about crimes committed with automatic weapons? Have you heard about Mexico and the crimes committed with (completely illegal) automatic weapons there?


- No limit on types of bullets, including hollow-point bullets.

Hollow point bullets are a good thing - they prevent bullets from passing through a target and going out into the street to endanger bystanders. I bet you think that they explode or something.


- No limit on caliber.

The current limit is .50 caliber, enacted in 1968. I am unaware of any crimes committed with higher caliber weapons prior to that (or after that). Are you?


- No limit on concealed weapons in public.

Alaska and Vermont seem to be doing fine in that regard.


- No limit on bullet substance. Fill our environment with lead.

Lead bullets are legal almost everywhere, except if you are actually going bird hunting with shotguns. If you aren't going bird hunting, you are free to own and use lead bullets as much as you want. And the quantity of lead is miniscule.


That's just off the top of my head. There are people who advocate each and every one of these extreme points.

It seems fairly clear that you don't understand much about firearms and their common and historical use in this country. If you combine that with sipping from the Brady bottle, then yes, these "extreme points" will seem extreme to you. Try educating yourself about guns in general and perhaps things will start to look different.
3.19.2008 9:28pm
Glenn W. Bowen (mail):

- No limit on types of bullets, including hollow-point bullets.


oh, Lawdy, hollowpoints... what's the point? do they kill ya deader?

just another hurdle to limit ownership.
3.19.2008 9:55pm
eyesay:
Brett Bellmore: "Wow, sounds like the America of my childhood.... A real hell-hole, I wonder how we survived that insanity?"

In the America of my birth, they didn't necessarily have to provide you with a lawyer in a state case, and they didn't have to tell you that you have a right to remain silent. Cars did not have seat belts, shoulder belts, or airbags. Instead of the rubber stuff we have now, children's playgrounds were paved with asphalt under the monkey bars, where kids hang by their knees and sometimes fall on their heads. Do we want to go back to that?

To answer your question directly: A lot of us didn't survive that insanity. 29,569 Americans died by gunfire in 2004. This is in contrast to civilized countries such as Canada, Japan, the United Kingdom, and almost everywhere else.

In 2002, there were 81 handgun deaths in the United Kingdom, 816 in Canada, and 30,242 in the United States. Source: http://news.bbc.co.uk/2/hi/americas/4636102.stm.

According to conservative Reason online,
http://www.reason.com/news/show/31897.html,

"Japan, where handguns are practically unavailable, had only 29 gun deaths (both murders and suicides) in 1999, while the United States had 26,800 gun deaths in 2000. England, another country with a strict handgun ban, has higher rates of assault and burglary than the United States but a murder rate only one-sixth of ours."

I am not making a constitutional argument or a legal argument. I am making a practical argument. Many people obtain handguns on the theory that this will make them safe. Unfortunately, too many of them a few of them find themselves, or people they care about, at the wrong end of the barrel, or their weapons get stolen and into criminal hands.

If I could go into a time machine back to the drafting of the Bill of Rights, I would argue fervently to omit the Second Amendment. If I were successful, perhaps Abraham Lincoln, James Garfield, William McKinley, JFK, Medgar Evers, Martin Luther King, and RFK would have died of old age.*

The Second Amendment is part of the Constitution. The Supremes will clarify for us in a few months what it means. Whatever they tell us, we have to deal with it. All you hubristic gun-rights advocates out there, I know you have deeply held views on gun ownership, and scholarly research to support your views on the true meaning of the Second Amendment and what the Supreme Court should do. That's fine. I still say, our schools and universities and cities and parks and neighborhoods and homes would all be much safer if we had started on Canada's trajectory with respect to gun ownership. Thanks for listening. You may now resume your worship of firearms.


----

*And by changing history, I would never be born, oh, the paradoxes of time travel.
3.19.2008 11:08pm
ReaderY:
One of the interesting things at the end of the Heller argument was the discussion about how to interpret, and whether to jettison, Miller. In 1939, the kinds of weapons citizens typically kept at home for self-defense were the same as the kinds of arms militia forces typically used, so there was no need to distinguish the two concepts. But today the kinds of arms used in militia-style forces have advanced significantly: assault rifles and machine guns are the weapons of choice today, from the U.S. National Guard to the militia-style forces that fought in wars from Vietnam to Afghanistan and Iraq.

So Miller is interrupted as protecting the kinds of weapons typically used in a contemporary militia-style force, then there's no way of avoiding interpreting the Second Amendment as protecting machine guns. On the other hand, if it is interpreted as protecting the kinds of weapons private citizens typically have around, as Justice Scalia suggested, machine guns could be excluded as atypical.

The difficulty, however, is that machine guns are atypical precisely because the United States has no militia. In countries with universal military service, like Switzerland and Israel, machine-gun possession is routine. If a state were to organize a functional contemporary militia, machine guns would be essential. It would seem clear that if a federal ban on machine guns were interpreted as applying to a state's organized militia and prohibiting state militia members from possessing them, it would interfere in a major way, essentially rendering a state militia militarily ineffective.

Thus, it seems to me that in order to justify a federal ban on machine gun possession, the court has to abandon an interpretation of Miller which closely couples the type of weapons permitted with the type that would be militarily useful to a typical militia. It either has to say that the kind of weapons an organized state militia has a right to have are higher-grade than the kinds that a private individual can possess, or it has interpret the Second Amendment in a way that renders militias effectively impotent, limited to hunting rifles and (possibly) handguns, unable to possess the kind of weapons that have made modern militias forces that standing armies have had to reckon with, and which have sometimes defeated them.
3.19.2008 11:22pm
A. Zarkov (mail):
eyesay:

"Japan, where handguns are practically unavailable, had only 29 gun deaths (both murders and suicides) in 1999, while the United States had 26,800 gun deaths in 2000. England, another country with a strict handgun ban, has higher rates of assault and burglary than the United States but a murder rate only one-sixth of ours."


Scotland, which has British gun control, has a higher murder rate than the US. We can play this game of comparative statistics forever. You seem to believe that somehow guns can induce an otherwise law-abiding person to murder. How can that be? Moreover it's misleading to compare murder rates between and among countries without looking at who does the murdering. In the US blacks have about 8 times the murder rate as whites. If you want to compare US versus English or US versus British murder rates you need to break down the figures by race. Murder rates also vary with age. You must adjust for demographics and race to make valid comparisons.
3.19.2008 11:50pm
Clayton E. Cramer (mail) (www):

galeH: Do you seriously deny what America would be like if the gun nuts got everything they want?

- No limits on number of guns purchased per month. But one gun is sufficient to not infringe on the right to bear arms, and those buying many weapons each month are likely to have criminal purposes. Law-abiding gun owners would be less safe.
If your objection is that there are people who unlawfully transfer firearms to get around gun control laws, I would agree that this is a problem. Indeed, it will be easier to get approval for a national requirement that all firearm transfers be recorded once the gun control nuts stop pushing for registration as a step towards confiscation.

I agree that few people need to buy dozens of guns a month. But there are circumstances where it might be appropriate to buy two or three guns in a month, for example, after a flood or fire destroyed your home--and "one gun a month" makes that impossible.

- No background checks, especially at gun shows.
Again: gun control nuts are the major impediment to a sensible gun registration law.

- No record of who bought what.
And you think that the criminal underground is obeying those laws?

- No limit on automatic weapons.
Why do you care what weapons a law-abiding, mentally healthy adult buys? Which worries you more? The law-abiding adult with an automatic weapon? Or a convicted felon with a .22 rifle?

- No limit on types of bullets, including hollow-point bullets.
Why is this a problem? California doesn't even ban hollow-point bullets.

- No limit on caliber.
And why is this a problem? I know people that own cannon without any legal problems--even in California.

- No limit on concealed weapons in public.
As others have noted, Alaska and Vermont aren't having a problem with this. And many Northern states had no restrictions on concealed weapons until the beginning of the 20th century. Those laws were often explicitly passed as part of racist efforts.

- No limit on bullet substance. Fill our environment with lead.
Relative to the bigger toxins in our society, lead is nothing.


That's just off the top of my head. There are people who advocate each and every one of these extreme points.
Doubtless. And these are the sort that call the NRA and me a bunch of sellouts to the gun control movement.
3.20.2008 12:18am
Clayton E. Cramer (mail) (www):

In the US blacks have about 8 times the murder rate as whites.
And yet without question, blacks don't have greater access to guns than whites. If anything, blacks are disproportionately in places with restrictive gun control laws (New York, D.C., California, Chicago).
3.20.2008 12:34am
wuzzagrunt (mail):
There are other cultural factors that have to be considered, as well. Back in the days when firearms were similarly unregulated in England and the US, the American murder rate was still many times higher than that in Britlandia.

If you want to count suicide-by-firearms in "civilized" countries like Japan, you must also consider the overall suicide rate among the Japanese. In 2003, there were over 34,000 suicides in Japan--and that is a country with approximately 1/2 the US population. I'll give you a moment to let that number sink in. Japanese police also have far broader powers than their American counterparts. A criminal suspect in Japan has very few rights as Americans know them.

Canadians own quite a large number of firearms per capita, and still maintain a comparatively low crime rate. Likewise Switzerland.
3.20.2008 12:50am
eyesay:
A. Zarkov (mail): "Scotland, which has British gun control, has a higher murder rate than the US." Would you kindly supply an Internet reference for that? And just how hard is it to obtain a gun, legally or illegally, in Scotland?

"You seem to believe that somehow guns can induce an otherwise law-abiding person to murder. How can that be?"

Well, not exactly. I believe that, because there are so darned many handguns in America:
* Criminals who would otherwise not have guns, do have guns, and use them to threaten in the commission of other crimes, and to kill.
* Many of the persons who use guns to commit suicide might not do so, and might emerge from their self-murderous depressions, if guns were not available.
* Children find their parents' guns, don't realize they are loaded, and injure or kill themselves and others.
* Fights that would otherwise be fistfights become deadly gunfights.
* Individuals that would prove their manhood in other ways, prove their manhood with guns, to deadly effect.
* Men and women kill their spouses and lovers in moments of anger, which they would not be likely or able to do with other weapons.

Does that answer your question?

There are tons of anecdotal data, and some actual statistics to support these contentions, some of which can be found on Handgun Control's website.

Again, I acknowledge that none of this is a Constitutional or legal argument. I also acknowledge that at least on occasion, some Americans have brandished a weapon and thereby avoided being a crime victim. It is not a completely black-and-white argument, but on balance, I believe we would have been better off without the Second Amendment, but, regrettably, it is here for us to deal with.
3.20.2008 12:51am
A. Zarkov (mail):
eyesaY:

"No limit on types of bullets, including hollow-point bullets."


What's your problem with hollow points? Police departments use hollow points and they are legal in places like California. Some people object to civilian use of hollow points because the 1899 Hague Convention bans expanding bullets in warfare. The two applications are very different. In warfare you generally prefer to wound an enemy soldier because his wound dissipates the enemy's resources. Stopping power is not necessarily a paramount objective. On the other hand, stopping power is paramount in the defensive use of civilian firearms. You don't want to just wound an attacker you want to stop him from killing you or someone else. A wounded attacker could be even more dangerous. Unlike warfare you don't want the bullet to pass through the attacker and hit an innocent person. Some target ranges even ban full metal jacket ammunition. If we had a reliable method of stopping an attacker without the use of lethal force, the defensive use of firearms would serve no legitimate purpose. In the meantime we have to make do with what he have.

You should study up on firearms. Start with Wikipedia. I think if you knew more about the subject, you might not buy into the facile arguments from organizations like Handgun Control.
3.20.2008 12:58am
eyesay:
Clayton E. Cramer wrote, "In the US blacks have about 8 times the murder rate as whites. And yet without question, blacks don't have greater access to guns than whites. If anything, blacks are disproportionately in places with restrictive gun control laws (New York, D.C., California, Chicago)."

A significant fraction of the U.S. who want a gun can obtain one, somehow, legally or illegally. So, effectively, blacks can obtain guns about as easily as whites, regardless of where they live. The problem experienced in cities and places that are trying to control guns is all those other @#$%^!!! places run amok by gun nuts opponents of rational and sane policies that would limit the availability of guns.
3.20.2008 1:00am
Waldensian (mail):

I agree that few people need to buy dozens of guns a month. But there are circumstances where it might be appropriate...

Whoah there. Whacky premise alert.

It doesn't matter whether you or anyone else thinks I "need" to buy dozens of guns a month. Your perception of my "need" is no basis to deprive me of the liberty to do anything, much less engage in the constitutionally protected behavior of keeping and bearing arms.

Maybe I don't think many people "need" to drive an SUV, live in a 20,000 square-foot house, watch American Idol, or eat Cheetos.

But this is America. They can do what they want.

And that's true even though there's no constitutional amendment protecting Cheeto consumption.

As usual, Shakespeare said it best.
3.20.2008 1:08am
Don Meaker (mail):
Excuse me for mentioning the law on this blog.
Title 10, Section 311 makes all men between 18 and 45 members of the unorganized militia. Further, female nmembers of the National Guard are members of the Organized militia. Former officers remain members of the militia until they are 65.

Certainly this means that the right to weapons in military calibers (say long guns in .30/40, .30/06, 7.62x51, 5.56x45, 12 gauge, and even 7.62X39 (issued to special forces on covert missions) and 7.62x54R (issued to US soldiers sent to Murmansk and Vladivostok during WWII) would be protected. Regulations which affect such weapons should be subject to strict scrutiny. A similar list of pistol caliber rounds would be .45 Colt, .45ACP, .36 Colt, .38 Special, and 9mm Parabellum.

Further, the 14th Amendment applies federally guaranteed rights to citizens of the several states.

Article 1 grants Congress the power to grant letters of Marque and Reprisal. This power presumes the private possession of crew served weapons, such as a ship armed with cannon. Private posession of similar land based weapons would also be protected, and state or local regulations of such weapons would inhibit the exercise of this congressional power, and should also be subject to strict scrutiny.
3.20.2008 1:09am
Waldensian (mail):

I also acknowledge that at least on occasion, some Americans have brandished a weapon and thereby avoided being a crime victim.

I am one of those people. I'm quite certain I prevented a person from robbing me or worse. Perhaps MUCH worse. No shots were fired.

These aren't just random anecdotes or faceless statistics we're dealing with here. I'm the NRA, so to speak.
3.20.2008 1:14am
A. Zarkov (mail):
eyesay:

"A. Zarkov (mail): "Scotland, which has British gun control, has a higher murder rate than the US." Would you kindly supply an Internet reference for that? And just how hard is it to obtain a gun, legally or illegally, in Scotland?"

Circa 2002, on the Interpol Website, I found the homicide rate for Scotland, and it was something like three times the rate in the US. A few years later I noticed that they blocked off the public from seeing that kind of data. You could try WayBack. It's hard to find data for the individual parts of the United Kingdom. As far as I know gun laws are uniform throughout the UK.

As for your speculations about guns and homocide, they are just that. I don't see why criminals couldn't still get all the guns they wanted even if we banned them. Narcotics are banned, but are still readily available. I don't think you realize that a small machine shop can produce guns. Even if we put all the firearm manufacturers out of business, demand would create the supply.

If you want to allow speculation, I will assert that guns have a deterrent effect on crime. We would have more home invasions if criminals were not fearful of getting shot. The UK has a much higher rate of home invasions than the US. Criminals say that they worry about getting shot from an armed victim. But how do we count the crimes that don't happen because they have been deterred? Should we stop polio vaccination because there are no cases?
3.20.2008 1:18am
Fred Garvin (mail):
* Criminals who would otherwise not have guns, do have guns, and use them to threaten in the commission of other crimes, and to kill.

Cocaine is banned, yet it is still prevelent in society, illegal migration of people, and a whole host of "threatening" thingies enter society. I fail to see the reason why firearms would be left out of this list. With that, who will maintain access to those illegal firearms when you restrict honest, good people from acquiring them?

* Many of the persons who use guns to commit suicide might not do so, and might emerge from their self-murderous depressions, if guns were not available.

How do you plan to stop them from hanging themselves, drowning themselves, slicing wrists, jumping off tall buildings, or assisted suicide?


* Children find their parents' guns, don't realize they are loaded, and injure or kill themselves and others.

I don't have the statistic on that. Unless this is just anectodal testimony, then I'd have to respond with my own: every gun owner I know are the most responsible, attentive, concerned, and very aware of the level of commitment it takes to be a gun owner. In fact, I consider them model citizens that should be emulated, not demonized. For those of them that do have children, all are very restrictive about their storage and use.

* Individuals that would prove their manhood in other ways, prove their manhood with guns, to deadly effect.

Does the 75yr old woman who thwarts her would be attacker's aggression count as "proving her manhood"?

* Men and women kill their spouses and lovers in moments of anger, which they would not be likely or able to do with other weapons.

Yeah, because no kitchens have knives, garages don't have chainsaws, and driveways have cars that are not functional. hmmmmmf.


Your delusional logic to want to feel secure completely flies in the face of my right to protect my person and property.
3.20.2008 1:20am
eyesay:
Waldensian: Nice to meet you. I am someone who was threatened and pistol-whipped with a semiautomatic handgun, which wouldn't have happened to me in a comparable neighborhood in Japan.

Kevin P. and Clayton E. Cramer: News flash: Alaska and Vermont are very different from Washington, D.C., in many ways.
3.20.2008 1:22am
Don Meaker (mail):
eyesay:

So you assert that the inability of gun control law to work in some cities or states means that it would surely be more effective, and also good policy when applied to the entire country. This is called reinforcing failure.

http://www.cdc.gov/nchs/data/gis/atmaphom.pdf is a source for murder rates at various locations. Note how highly restricted possession of guns seems correlated with high rates of murder. On the other hand, the madness that you associate with easy availability of firearms doesn't seem to affect people so much where firearms are easily available. That tends to invalidate your argument that the trigger pulls the finger.
3.20.2008 1:26am
Don Meaker (mail):
OOPs. US soldiers were sent to Murmansk and Vladivostok during WWI. Not World War II.

Note to Self: Proofread.
3.20.2008 1:33am
A. Zarkov (mail):
eyesay:

"Kevin P. and Clayton E. Cramer: News flash: Alaska and Vermont are very different from Washington, D.C., in many ways."

Tell me what difference between DC and Vermont accounts for their disparity in homicide rates? Do you think it's the buildings and concrete that causes the killings?
3.20.2008 1:35am
Clayton E. Cramer (mail) (www):

Kevin P. and Clayton E. Cramer: News flash: Alaska and Vermont are very different from Washington, D.C., in many ways.
Yup. Suggesting that what's wrong with D.C. might have more to do with those "many ways" than with gun control.
3.20.2008 1:37am
Clayton E. Cramer (mail) (www):

Waldensian: Nice to meet you. I am someone who was threatened and pistol-whipped with a semiautomatic handgun, which wouldn't have happened to me in a comparable neighborhood in Japan.
Nor would you have been robbed at knifepoint in Japan, or beaten to a pulp, either. But that's because Japan's violent crime rate with ALL weapon types is very low. Hint: it's something to do with a culture that encourages conformity and self-discipline.
3.20.2008 1:38am
Clayton E. Cramer (mail) (www):

A significant fraction of the U.S. who want a gun can obtain one, somehow, legally or illegally. So, effectively, blacks can obtain guns about as easily as whites, regardless of where they live. The problem experienced in cities and places that are trying to control guns is all those other @#$%^!!! places run amok by gun nuts opponents of rational and sane policies that would limit the availability of guns.
So you are admitting that gun control laws don't work very well at discouraging people from obtaining guns. And your solution is more gun control laws that you admit don't work very well.

Pretty obviously, gun control laws work well at stopping some people from obtaining guns: the ones who aren't generally the problem with guns.
3.20.2008 1:41am
Clayton E. Cramer (mail) (www):



I agree that few people need to buy dozens of guns a month. But there are circumstances where it might be appropriate...

Whoah there. Whacky premise alert.

It doesn't matter whether you or anyone else thinks I "need" to buy dozens of guns a month. Your perception of my "need" is no basis to deprive me of the liberty to do anything, much less engage in the constitutionally protected behavior of keeping and bearing arms.
My point was not that such laws make sense, but that even if, for purposes of argument, there might be a legitimate concern about people who buy dozens of guns a month for resale to criminals, "one gun a month" still infringes on completely rational, legitimate, and appropriate purchasing.
3.20.2008 1:42am
Clayton E. Cramer (mail) (www):

I also acknowledge that at least on occasion, some Americans have brandished a weapon and thereby avoided being a crime victim.
Yes, on occasion. The surveys range from about 80,000 uses a year to 2.45 million uses a year. Read this blog; I'll lean towards the surveys that are in the hundreds of thousands.
3.20.2008 1:46am
A. Zarkov (mail):
"Hint: it's something to do with a culture that encourages conformity and self-discipline."

Absolutely. Moreover punishments for crimes in Japan are draconian. I suspect that Japanese communities throughout the world also have a low level of crime. It's actually ironic given Japan's Bushido cultural. I guess aggression is channeled into highly disciplined activities.
3.20.2008 2:19am
Tony Tutins (mail):
No limits on number of guns purchased per month. But one gun is sufficient to not infringe on the right to bear arms, and those buying many weapons each month are likely to have criminal purposes.

The law does not affect those who buy weapons every month as much as it affects those who want to buy more than one firearm at a time. First, realize that there are a multitude of firearms serving a multitude of purposes, from pocket pistol to plinker to hand cannon. Some shotgun sports require four "calibers" of shotgun to be used. Rifles are available in calibers ranging from rabbit to elephant.

Second, realize that gun stores, like other retailers, have "sales," where bargains tempt the purchaser to buy more than one item at a time. A new .40 pistol for dad, a ladysmith for mom, and a buckmark for each of the boys could add up to five at a time. Imagine if there were a "one bicycle a month " plan. Surely no one needs more than 12 bicycles a year, right?

Third, dealers are required to report "those buying many guns a month" to the federal government. Specifically, if you buy more than one handgun in a five day period, the dealer sends a Form 3310 to whatever they call the ATF these days.

- No background checks, especially at gun shows.

I have no personal problem with dealers running an instant background check to make sure the buyer is not a prohibited person, because they can eat the cost as part of doing business. But individuals should be able to sell their personal firearms to individuals without running background checks, especially to relatives or friends.

- No record of who bought what.

Why would this be necessary? Assume everyone is armed, and act accordingly. Registration merely facilitates confiscation, as our British and Australian friends learned.

In fact, the British and Australian confiscations demonstrated the unfair and irrational nature of gun control statutes: First, a psychopath commits a sickening mass murder. (In the British case, a frustrated pedophile shot up a primary school full of children.) Second, in reaction to the act of a lone psychopath, the gun rights of all are restricted or eliminated, including the most sane, law-abiding, and responsible gun owners.

- No limit on types of bullets, including hollow-point bullets.

Hollowpoints allow smaller guns to do the work of larger guns.

- No limit on caliber.

And why would there be?

- No limit on concealed weapons in public.

I think requiring training for those who want to carry concealed is reasonable.

- No limit on bullet substance. Fill our environment with lead.

Lead can be harvested from ranges, and is negligible in hunting environments. More lead leaches off old paint or thrown tire weights.
3.20.2008 2:28am
Jagermeister:
Peer reviewed studies by criminologists have long established that firearms are a instrumentality of violence - in murder, in suicide, in rampages, and in other violent crime. In these classes, restriction of access to firearms leads to substitution, with virtually no effect on murder rates, suicide completion rates, or other violent crime rates. People seem quite inventive in finding equally lethal means to accomplish their ends.

The only class of firearms related deaths that is impacted by firearms bans is accidental deaths. The rate of accidental deaths due to firearms is so low as to be inconsequential. More young children die from drowning in bathtubs and buckets than from firearms (not counting as "children" those out dealing drugs on the street, as the Brady campaign does).

The real consequences of the gun-control fight are to waste time and resources attacking a means while ignoring the root causes of violence. I hold gun control enthusiasts responsible for the high rates of violence in certain sections of the United States, because by their assignment of responsibility to the inanimate object they prevent any rational discussion or fruitful efforts to reduce root causes of crime and depression. Gun control advocates, mostly "progressives", agitate for gun bans, pat themselves on the back, and go home crowing about having "done something" for the underprivileged or the mentally ill.

By the time an average criminal uses a firearm, they have had numerous encounters with the "justice" system, which for various reasons has failed to deal with their increasing criminality until it rises to the level of death or mayhem. I don't have the numbers off the top of my head, but the Bureau of Justice Statistics (I think that is the entity within the DOJ) has all kinds of stats, and I think you can find it there.

Another factoid which I recall, but for which I can't readily find the cite, is that the overwhelming majority of people involved in death or injury by firearms, (either as victim or perpetrator), of all causes (murder, suicide, etc), have a history of substance abuse. If I recall correctly, substance abuse is the number one correlate for involvement with a firearm death or injury. Please note that substance abuse also correlates highly with death or injury by other means.

Guns are the symptom - not the cause - and as long as gun control advocates concentrate on the symptom - like using cosmetics on a sick person - they ignore the causes of violence - and allow the disease to progress unchecked.

Allowing poor people to defend their lives or their property would be a much more meaningful step towards bringing normalcy to their lives. And seeing that the mentally ill are identified and treated, even if against their will, would do more to save their lives.

I think gun control advocates have a lot more blood on their hands, and a lot more lives to answer for, than supporters of an individual right to self defense.
3.20.2008 2:55am
David Schwartz (mail):
It's funny that people keep arguing that if we acknowledge an individual right, we suddenly have to reject a whole host of reasonable restrictions. Yet we recognized a right to an abortion without a right to an abortion a second before birth. We recognized a right to freedom of speech without a right to drive down the road at 3AM blaring music at 120dB.

I don't think there's much dispute that:

1) Age limitations, provided they allow everyone over 18 to buy and own guns, can be reasonable. (And most people think 21 is fine.)

2) Limitations preventing felons or those with an active history of mental illness can be reasonable.

3) Environmental laws, provided they don't significantly encumber the ability to hunt and defend yourself, can be reasonable.

4) Biological weapons, nuclear weapons, and the like can be heavily restricted.
3.20.2008 5:19am
Waldensian (mail):

My point was not that such laws make sense, but that even if, for purposes of argument, there might be a legitimate concern about people who buy dozens of guns a month for resale to criminals, "one gun a month" still infringes on completely rational, legitimate, and appropriate purchasing.

I sit corrected, my apologies. I suppose I'm simply hyper-annoyed by the old "why do you need?" argument, and I tend to see it everywhere.
3.20.2008 10:57am
Waldensian (mail):

Waldensian: Nice to meet you. I am someone who was threatened and pistol-whipped with a semiautomatic handgun, which wouldn't have happened to me in a comparable neighborhood in Japan.

Good thing you weren't in Scotland, where you likely would have been stabbed to death.

I sit in my office about 30 feet from a coworker who, within the last 6 months, used his lawfully possessed handgun -- carried pursuant to a concealed carry permit that required training and a criminal background check -- to prevent a carjacking (of his car, with him in it).

No shots were fired. No statistics were affected. The criminal involved was almost certainly already in violation of any number of firearms laws, and would be unaffected by any new gun control measures.

And if gun control advocates had been successful in years past, and had kept a gun out of the hands of my law-abiding coworker, they might well have his blood on their hands.
3.20.2008 12:06pm
Aramaic:
You wrote: "Any justice who today professes a commitment to originalism is branded a radical."

Uh, that doesn't seem to jive with reality. If anything, a justice (or judge) who supports an evolving notion of constitutional law is decried as an "activist judge."
3.20.2008 12:48pm
markm (mail):
J.F. Thomas:

I never defended the "mass confiscation" of firearms after Katrina--in fact I stated clearly that it was an overreaction and unwise. I merely complained that the confiscation was blown out of proportion and used as a propaganda tool to push through an extremely stupid piece of federal legislation.

That you characterize the incident as a "mass confiscation" just shows that you have swallowed the lies of the NRA. That you continue to claim that I defended the confiscation shows that you deliberately ignored the point I was trying to make or are too dense to appreciate it.

J.F., just how many guns do you think it takes to be a "mass confiscation"?
3.20.2008 1:50pm
Sean Siekkinen:
I just got around to downloading the .MP3 and listening to the arguments this morning, so I'm entering the fray late and I apologize if my question has already been addressed.

How and why did the Justices and advocates almost completely avoid discussion of the practical effects of strict handgun regulations such as the District's, as illustrated by the various statistics permeating almost every brief filed in this case? I was very surprised to hear so little empirical discussion because these statistics (whichever you believe) seem to speak directly to the question of reasonableness.

The Court seemed to decisively cut right to the heart of the matter by acknowledging and embracing the the intermediate ground of some individual right necessarily subject to "reasonable" restrictions (and as one of the advocates mentioned toward the end of his argument, EVERY constitutional right is subject to some sort of reasonable restriction). Given that everyone seems to concede that the issue here boils down to whether or not the District's regulation is "reasonable," why spend so much time on the originalist/textualist arguments? Once you apply originalist/textualist principles and conclude that a reasonableness test applies, you're necessarily beyond the strictures of originalism and textualism in interpreting what is reasonable in present day.

A few of the Justices repeatedly asked "What's so unreasonable about the District's ban?" The easy answer from Heller's perspective seems to be that it is unreasonable because prohibiting hand guns in homes bears absolutely no rational relationship to the purported goal of decreasing gun violence.

The statistics cited in a couple of the briefs (I forget which ones, because I skimmed through at least a couple dozen of them) indicate that DC's handgun ban has not had any effect at all in decreasing gun violence, and in fact gun violence has slightly escalated since the ban was enacted. Looking beneath the statistics, this result appears at least somewhat intuitive because the only people who will be dissuaded from possessing guns by the prohibition are law abiding citizens. Criminals won't think twice about violating the ban. Perversely, the District's handgun ban only seems to effect potential crime victims by preventing them from defending their homes.

Of course, the rejoinder to this argument is that by eliminating all legal handguns, the prohibition makes it harder for criminals to obtain illegal handguns through theft. But the statistics don't bear this out - gun violence has not gone down at all the decades since the District enacted this ban. It is pretty clearly a failed experiment. A handgun ban can only help to reduce crime if it actually makes it harder for criminals to obtain guns illegally. The only way that's going to happen is with a flat-out national ban on production and ownership, and even then it will take many years for the number of guns already out there to percolate out of homes and off the streets.

Why wasn't this seemingly simple and straightforward argument stated by Heller's counsel? Or did I miss it at some point?
3.20.2008 2:37pm
J. F. Thomas (mail):
J.F., just how many guns do you think it takes to be a "mass confiscation"?

Something like 200 guns in total were confiscated from people (where no crime was charged) after Katrina. The N.O. Police Dept. claims that the total number of guns they secured post Katrina was around 700 (that number is disputed by various parties). Most of the guns authorities collected were from flooded homes and businesses, not confiscated from citizens, law-abiding or otherwise. You may disagree, but I think it is perfectly reasonable for the police to secure abandoned firearms in such a situation. I don't consider taking guns from a couple hundred people that only happened for a couple days to be a "mass confiscation" especially under the circumstances. The city was under a mandatory evacuation order and the police were trying to force the residents to leave--they weren't specifically going door to door looking for guns. They were saying "you have to leave, we are not going to physically force you to leave, but if you don't, we are going to make you hand over your guns."
3.20.2008 2:52pm
J. F. Thomas (mail):
Why wasn't this seemingly simple and straightforward argument stated by Heller's counsel?

Because the reasonableness of a policy does not necessarily depend on the results. Also, causation is a very tricky thing to prove. If you look at crime statistics for cities with and without strict gun control, you really can't draw much of a conclusion. Dallas and Chicago have basically equivalent crime rates. New Orleans is much worse than DC (or any other city for that matter). New York is one of the safest large cities in the country. Hawaii, which has strict gun control laws, has one of the lowest violent crime rates, but then again so do Wyoming and Vermont.
3.20.2008 2:59pm
Tony Tutins (mail):

Why wasn't this seemingly simple and straightforward argument stated by Heller's counsel?

Because the reasonableness of a policy does not necessarily depend on the results.

Right. Plus it concedes that the right to own a gun is not a fundamental right, because it would admit that gun regulations should be subject only to rational basis review. Advocates generally don't start out by conceding their strongest positions. "Reasonable" is a loaded word in the civil rights context. Allowing priests and ministers into public schools to teach their young congregants is certainly reasonable; in fact this is the practice in most European countries. However it was held to be a violation of the Establishment Clause some sixty years ago.
3.20.2008 3:20pm
Sean Siekkinen:
Because the reasonableness of a policy does not necessarily depend on the results.

Well, not necessarily. Granted. But whenever the question is whether some restriction on an individual right is "reasonable," the inquiry inevitably looks to the purpose of the restriction. The government will claim, "We need to restrict an individual's right to do X because of A, B, and C," where A, B, C may be things like public safety or some other individual right that conflicts with X. But if the restriction does not, in fact, rationally promote A, B, or C, then it is unreasonable.

In cases like these, it is not rare for courts to find concrete results relevant if and when solid empirical numbers exist to reflect the results. In this specific case, the empirical numbers seem pretty solid. The causal relationship (or lack thereof) between banning handguns in the home (X) and decreasing violent crime (A) is not all that "tricky"; Heller's attorney should have been able to portray it as non-existent. This is because the relevant comparisons aren't between different cities. Rather, the relevant comparisons are year-to-year gun violence statistics from the District. As some of the briefs noted, these statistics indicate that the handgun ban hasn't had any effect at all on gun violence.

But even if you choose to ignore the tangible results of the ban, there is still the intuitive argument that, statistics aside, a ban on handguns in the home cannot rationally be expected to have any effect on criminals, who by definition ignore the law and will have no trouble continuing to obtain guns illegally from neighboring municipalities.

All in all, I don't see how you can ignore this inquiry if the question boils down to reasonableness.
3.20.2008 3:24pm
Sean Siekkinen:
Plus it concedes that the right to own a gun is not a fundamental right, because it would admit that gun regulations should be subject only to rational basis review. Advocates generally don't start out by conceding their strongest positions.

I completely agree with this. But by the end of the respondent's argument, it seemed pretty clear which way the Justices were leaning. And especially when he got hit with the direct question: "Tell us why this ban is unreasonable?" (which implicitly assumes rational basis review), I think he should have done a better job of directly responding to the question -- of course with an "assuming arguendo" caveat reserving the broader fundamental right argument.
3.20.2008 3:32pm
Turk Turon (mail):
eyesay:

Studies in Los Angeles, Chicago, Philadelphia, Washington, DC and Charlotte, NC have found a very strong statistical association between homicide and a record of arrest. Across the United States, 70% of homicide victims (repeat: victims) have arrest records. It varies somewhat, depending on which study, where it was done, who did it and what criteria they used. For example, in a study in The New England Journal of Medicine, 70% of victims of drive-by shootings were documented members of violent criminal street gangs. In Chicago, the police prepare an annual Homicide Report and the number of victims with arrest records is 60-65%, depending on the year. In Philadelphia, 70% of homicide victims had traces of recent illicit drug use. (To do some research, start by Googling: Kellermann, NEJM)

If a nationwide report could be prepared, it would probably show that close to 80% of American homicide victims are felons, or fugitives, or have arrest records, or juvenile records or documented gang histories.

Some criminologists say that the predominant story of homicide in America is "criminals killing other criminals". Not that there aren't unspeakable tragedies out there, and too many of them. But if we could just find a way to stop thugs from murdering each other, homicide would cease to be such a serious problem in the U.S.

Comparisons with England don't account for the fact that gun crime, per capita, in England, is actually higher now than it was one hundred years ago, when there were no gun laws at all, and thousands of Londoners went about their daily business with pistols in their pockets. (Google: Tottenham Outrage, Joyce Lee Malcolm)

And in Japan, where civilian possession of firearms is practically non-existant, the suicide rate is often twice what it is here in the U.S. (Google: Cathy Young, When Liberals Lie About Guns)

Do some personal research. Drill down to the base data. Decide for yourself. Don't take anyone's word for it.
3.20.2008 5:33pm
Jim Archer:

Do you seriously deny what America would be like if the gun nuts got everything they want?

- No limits on number of guns purchased per month. But one gun is sufficient to not infringe on the right to bear arms, and those buying many weapons each month are likely to have criminal purposes. Law-abiding gun owners would be less safe.

- No background checks, especially at gun shows.

- No record of who bought what.

- No limit on automatic weapons.

- No limit on types of bullets, including hollow-point bullets.

- No limit on caliber.

- No limit on concealed weapons in public.

- No limit on bullet substance. Fill our environment with lead.

That's just off the top of my head. There are people who advocate each and every one of these extreme points.



"Gun nuts"? So you can't make your point without denigrating those you debate with?

My question is, how are you defining the term extreme? The positions you claim are "extreme" are, in fact, the positions of almost all jurisdictions in the US. Consider this:

- Only two states (I think) still have limitations on the number of guns a person may purchase each month. North Carolina recently repealed this limitation, citing it as ineffective as a crime prevention measure. A few cities have this restriction, but overall, very few jurisdictions nationwide have such a restriction.

- Very few states enforce background checks on private sales, at a gun show or otherwise.

- Most states don't track who bought what. In RI is is specifically outlawed. The Federal government is not supposed to maintain such records beyond a few weeks either.

- Full auto firearms are heavily restricted. I'll give you that one, but keep in mind that only a small minority of states outlaw class III firearms. If not for the federal restrictions making them so expensive (due to artificially reduced supply) I expect they would be common.

- Currently only armor piercing ammo is restricted. New Jersey bans the carrying, although not the mere possession or use at home, of hollow point ammo. In fact, HP ammo is considered safer because it is less likely to come out the other side of the person it hits. There are almost no restrictions on its use outside the military.

- There are very few restrictions on caliber. Some states ban .50 BMG but most don't.

- 48 of the 50 states allow carrying concealed weapons to various extents, 40 of these issue permits on a non-discretionary basis. Here in RI people with a permit may carry "anywhere within the state." Many states allow the carrying of a concealed handgun in your car without a permit. Overall, there are relatively few restrictions on concealed carry accross the US.

- Almost all bullets contain lead. Other than shot, in very few places, I don't think lead is restricted in ammo.

To my mind, a position would be "extreme" if it is rejected by an overwhelming majority of the rest of us. The positions you cited above as extreme, with one exception, are in fact well accepted nationwide. So much so, that it would be fair to say opposing these positions is extreme.

So please tell us why the positions you listed above are "extreme"?

Also, I have also noticed that you have, several times, relied on the rhetoric that gun control laws are "sane" and derive from "common sense." The same analysis can apply. Are you prepared to say that the large majorities of jurisdictions in the US are not sane because they have rejected these so-called sane laws? As for "common sense," although many things, in many disciplines, initially seem intuitively sensible, some study and examination often reveals otherwise.
3.21.2008 3:51am
C. Norris (mail):
To eyesay:

You post: "Brady Campaign Domestic Violence page
In 2004, 1,159 women were killed by their intimate partners, accounting for over 30% of all murders of women, and of that 1,159, 52% were killed by guns."

However, these "gross" statistics fail to mention the criminal or mental history of either spouse, nor does it provide information on the levels of intoxication or drug influence of murdered and murderer. Therefore, as a statistic for the composition of public policy regarding guns in general, it has little utility and is at best anecdotal.

"That is a lot of people dying because a loved one, regrettably, had a gun and used it in a moment of passion."

This is nothing more than the attempt to shift guilt onto the the "not guilty" because those with an immediate and personal knowledge of the suicidal failed to act in time. The phenomenon of the "Dunblane Massacre" in Scotland is a perfect example of guilt shifting. Since the perpetrator of that horror killed himself, there was no one left to hate and punish. Furthermore, not unlike the university shootings in the US, the shooter had behavior on record in depositories that were privy to the gun permitting authorities that would have prohibited his "keeping and bearing" a firearm under then existing UK law. The public then demanded "someone be punished" and someone was: the law abiding and qualified gun owner in the UK. Guilt was shifted from the government not doing its job onto the innocent. This type of "mass punishment is un-American. It's one reason why we aren't "British". Think "Tea Party".

In one post you wish for a "Time Machine" to transport you to the ratification of the 2nd Amendment to plea for its exclusion from the Bill of Rights. Would you use this same "Time Machine" to attend the Wash D.C. council meeting in 1974 and inform them that if they ban handguns that, for whatever reasons or dynamics, murders will not decrease as a result and are most likely to increase. Do you not then shoulder the guilt for some of those murdered who would still be with us today had they been able to adequately defend their lives? Go wash your hands, "eyesay", they too have the blood of the innocent upon them.
3.21.2008 3:47pm