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Gun Rights and Reconstruction:

Charles Lane, author of The Day Freedom Died: The Colfax Massacre, the Supreme Court and the Betrayal of Reconstruction, writes in today's Washington Post about the import of Reconstruction for understanding the extent to which the Constitution protects gun ownership.

During oral arguments on Tuesday, the justices debated what the framers of the Second Amendment intended. The members of the court did not mention Reconstruction. Yet during this period, we the people gave the Union a second "founding" through constitutional amendments abolishing slavery, granting blacks citizenship and enabling them to vote. And, to clarify blacks' newly secured freedom, Congress wrote laws identifying the specific rights of individual U.S. citizens. One of these was the right to have guns.

Before the Civil War, gun ownership was a prerequisite not only of militia service but also of participation in sheriffs' posses and for personal defense. But it was a right for whites only. Southern states forbade slaves to own guns, lest they revolt. (Free blacks, in the North and South, could sometimes have guns under tight restrictions.) After the Civil War, the same Congress that made African Americans citizens through the 14th Amendment considered the antebellum experience and concluded that equal access to arms was a necessary attribute of blacks' new status.

The Freedmen's Bureau Act of 1866 promised that "personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens." This was no theoretical concern. As senators noted during the debate on the bill, many Southern states sought to reimpose legal bans on gun ownership by blacks -- leaving them at the mercy of Klansmen and other white terrorists.

elim:
it's not much different today. supposedly, from this article, there is always a police officer just a 911 call away to save you-the author is living in a dream world. it is willful ignorance.
3.22.2008 6:43pm
MarkField (mail):
For all the ink spilled over the intentions of the Founders in 1791, the evidence from the 14th A has always seemed to me by far the best argument for an individual right to own guns. I don't know why conservatives generally have held back from this argument, but it seems that only liberals like Akhil Reed Amar and Jack Balkin have made it. Why is that?
3.22.2008 6:43pm
Wrinkle-Free Pants (mail):
If you think the pro-Heller briefs haven't detailed the racial aspect of denying an individual gun right, you haven't been reading Volokh Conspiracy.
3.22.2008 6:48pm
Mac (mail):
Fascinating. And, this is about DC. Talk about history repeating itself. Different location same subject.
3.22.2008 7:45pm
PersonFromPorlock:

NAACP to Sue Gun Industry
By Ben Anderson
CNS Staff Writer
12 July, 1999


NAACP President Kweisi Mfume said in a speech at the group's annual convention being held in New York City that the gun industry is responsible for the use or misuse of its products, once in the hands of criminals.

"Easily available handguns are being used to turn many of our communities into war zones," Mfume said. "The fact that the illegal trafficking of firearms disproportionately affects minority communities in this country is indisputable. Urban communities have sadly become so accustomed to the prevalence of firearms in their neighborhoods that they are no longer shocked at the sound of gunfire."

The lawsuit reportedly will seek court orders forcing gun makers to do a better job of monitoring where guns are distributed and it attempt to limit how many guns an individual may purchase at one time.


With friends like that....

I always wondered why the firearms industry didn't respond to NAACP lawsuits about putting "minorities" at risk by instructing their dealers not to sell to them. Perfectly unconstitutional, of course, but what fun to watch the NAACP sputter!
3.22.2008 8:00pm
Clayton E. Cramer (mail) (www):

For all the ink spilled over the intentions of the Founders in 1791, the evidence from the 14th A has always seemed to me by far the best argument for an individual right to own guns. I don't know why conservatives generally have held back from this argument, but it seems that only liberals like Akhil Reed Amar and Jack Balkin have made it. Why is that?
Because you haven't read any of our stuff, I guess. My book For the Defense of Themselves and the State has a whole chapter devoted to it. Halbrook has a whole book on it.
3.22.2008 8:11pm
MarkField (mail):

If you think the pro-Heller briefs haven't detailed the racial aspect of denying an individual gun right, you haven't been reading Volokh Conspiracy.


I'm sure they did (I couldn't read them all). My point is a larger one: the people I saw who first raised this issue and who've supported it for at least 10 years or so are liberals. Most of the conservative discussion I've seen, including here, involves the founding era. If the better argument is based on the 14th A -- and to me, at least, that's VERY clear -- it would seem easy to raise that. But nobody does; all the debates get bogged down in minute details of the 18th C. It seems odd to me.
3.22.2008 8:54pm
Mac (mail):
PersonFromPorlock:

I always wondered why the firearms industry didn't respond to NAACP lawsuits about putting "minorities" at risk by instructing their dealers not to sell to them. Perfectly unconstitutional, of course, but what fun to watch the NAACP sputter!

Brilliant!
3.22.2008 8:55pm
Dennis Nicholls (mail):
I forget the facts in Cruikshank - did that case arise from the facts in the "Colfax Massacre"?
3.22.2008 9:11pm
Mark Robinson (mail):
Dennis Nicholls: I forget the facts in Cruikshank - did that case arise from the facts in the "Colfax Massacre"?

Yes....
3.22.2008 9:24pm
Dennis Nicholls (mail):
It's been 10 years since I read Cruikshank....

I'm surprised that the author of the article didn't at least cite Cruikshank. I recall the facts were about some heavily armed Klansmen going to a lynching who were arrested under a state law. They appealed that they had a right to assemble under the 1st A. and a right to bear arms under the 2nd A. The court tossed them since under the Slaughterhouse cases those amendments weren't binding on state goverment action.
3.22.2008 9:33pm
Dennis Nicholls (mail):

there is always a police officer just a 911 call away to save you


I live in Idaho and there are many beautiful wilderness areas in this state. However, since most of the state is sparsely populated and because of all the mountain ranges, there is NO cell phone coverage in the wild central part of the state. When I have liberal friends from out of state visit, and we go to take hikes in the Sawtooth Wilderness, they cringe as a pull out my revolver, load it, and put it in my fanny pack. They always tell me "we should just dial 911 if there's trouble" to which I reply "pull out your cell phone and tell me about the signal strength here". Generally the shut up after that.
3.22.2008 9:52pm
John Anderson:
Charles Lane article = "... many Southern states sought to reimpose legal bans on gun ownership by blacks -- leaving them at the mercy of Klansmen and other white terrorists."

But, hey, those were racist bans, right? The DC ban does not care about race, gender, disabilities, or even age - it bans across the board!

The 14th, and the Freedmen's Act, are valuable support - but better than the 2nd?
3.22.2008 10:04pm
Wrinkle-Free Pants (mail):
The DC ban does not care about race

The District of Columbia is known as "the Chocolate City".
3.22.2008 10:18pm
Cornellian (mail):
I always wondered why the firearms industry didn't respond to NAACP lawsuits about putting "minorities" at risk by instructing their dealers not to sell to them. Perfectly unconstitutional, of course, but what fun to watch the NAACP sputter!

Unlawful no doubt, but not unconstitutional. The constitution restrains governments, not private entities such as firearms manufacturers.
3.22.2008 10:25pm
Don Meaker (mail):
Thank you Mr. Adler! This is one of the first times that I have seen in popular literature, a consideration of how the 14th Amendment extends the Second Amendment protections to the people, even despite a legitmate state government.

In addition to the usual remedy of the courts, which can be corrupted by jury nullification, suborned witnesses, or threats against the judges, the Congress can itself punish a state from the security of the District of Columbia, if a state does not respect the rights of the people by removing congressional represenation.
3.22.2008 10:34pm
Don Meaker (mail):
As was previously noted in VC, Idaho is one of the few places where one should be able to commit murder and get away with it.

The Yellowstone national park has a portion in Idaho, but the federal juridiction would required the trial to take place in Wyoming. Of course the Constitution forbids trial in one state for a crime committed in another.

So, best protect yourself if you go to the Idaho portion of Yellowstone.
3.22.2008 10:40pm
Harry Eagar (mail):
Cell phones don't work in DC? Who knew?

In have on my desk in front of me a letter written by my great-grandfather in 1876 about how he and my grandfather used their trusty shootin' arns to hold off nightriders in South Carolina.

Of course, the nightriders had their own trusty shootin' arns.

A standoff, I reckon.

I have no strong opinions one way or the other about the 2nd Amendment, but the Walter Mitty fantasies of the gun nuts provide a good deal of amusement.
3.22.2008 10:42pm
wuzzagrunt (mail):
Charles Lane wrote:

Unlike 19th-century rural Americans, we can call on professional police.

In the 19th century, the Sheriff and his deputies could not be counted on to protect the black freedmen, and might very possibly have been among the mob, under Klansmen's hoods. In more recent cases, we've seen the police choosing to leave minorites to fend for themselves. During the Rodney King riots an overwhelmed LAPD executed a "tactical retreat", leaving Korean shop owners to band together to defend their property from the mob. During Brooklyn NY's Crown Hights riots, it has been charged that the NYPD was ordered to "stand down" and the Hasidim were left to their own devices for a time. The latter case appears to be a case of a black Mayor, and a black Police Commissioner, making a conscious choice as to which ethnic minority they were more willing to piss off.

The more things change; the more they stay the same.
3.22.2008 10:55pm
H Bowman, MD:
elim, I hope you never need to depend on timely police presence summoned by a 911 call.

When seconds count, the police are only (at best) minutes away.

Response times in (say) the city of Los Angeles for an emergency 9-1-1 call average more than 5 minutes, even in very nice, expensive neighborhoods, and can reach 20 to 30 minutes regularly in other neighborhoods.

In rural areas (I live in rural northern Arizona right now) the response time for either of the two deputy sheriffs on duty on any given night (in a county of 8100 sq miles and 165,000 people) can be over an hour - if nothing really bad is going on somewhere else (like a traffic accident on the interstate).
3.22.2008 11:03pm
wuzzagrunt (mail):
Harry Eagar wrote:

I have no strong opinions one way or the other about the 2nd Amendment, but the Walter Mitty fantasies of the gun nuts provide a good deal of amusement.



Better, I believe, a nation of Walter Mittys, than A Nation of Cowards.
3.22.2008 11:05pm
Harry Eagar (mail):
Are you saying anyone who opposes gun control is a coward?
3.22.2008 11:11pm
wuzzagrunt (mail):
Harry Eagar wrote:
Are you saying anyone who opposes gun control is a coward?

I linked to an essay by that title. You are under no obligation to agree with any bit of it. Take from it what you will.
3.22.2008 11:19pm
Dilan Esper (mail) (www):
To answer Mark Field's question, the reason conservatives don't spend that much time on the 19th Century is because they have boxed themselves in with their stupid rhetoric (adopted solely because they hate substantive due process as applied to social issues) about originalism being the only proper constitutional interpretative theory. Thus, you can only use the 19th Century stuff on the incorporation issue, not the right to bear arms itself.

If conservatives would admit that constitutional interpretation is more complicated than original intent, they could strengthen the claim for a right to bear arms. Of course, they'd also have to stop advocating the constitutionality of laws that throw gay people in jail, and perhaps the latter is more important to them.
3.22.2008 11:34pm
Scaldis Noel:
Dilan,

Can you name even one conservative that "(advocates) the constitutionality of laws that throw gay people in jail" to support what is essentially a blanket statement about conservatives in general? I'm sure you'll come up with one or two names and claim that they've advocated it. They will either be nuts that any mainstream conservative would immediately reject, or you will need to misconstrue what a mainstream conservative actually said.

The sad thing is that you probably have such a distorted view of what conservatives believe, that you actually are convinced that they all "advocate the constitutionality of laws that throw gay people in jail." Such silly statements really diminish the likelihood that anyone will take your arguments seriously.
3.23.2008 12:24am
wuzzagrunt (mail):
Dilan Esper wrote:

To answer Mark Field's question, the reason conservatives don't spend that much time on the 19th Century is because they have boxed themselves in with their stupid rhetoric (adopted solely because they hate substantive due process as applied to social issues) about originalism being the only proper constitutional interpretative theory.

I certainly can't speak for all conservatives, but I are one. For many it is more about not ceding to the courts the power to amend the Constitution--rather than the people and their elected representatives--than it is about putting homosexuals and potheads in prison.
3.23.2008 12:34am
Cornellian (mail):

I certainly can't speak for all conservatives, but I are one. For many it is more about not ceding to the courts the power to amend the Constitution--rather than the people and their elected representatives--than it is about putting homosexuals and potheads in prison.


I believe that ship sailed when they put liberty in the constitution alongside property.
3.23.2008 1:03am
A. Zarkov (mail):
"Response times in (say) the city of Los Angeles for an emergency 9-1-1 call average more than 5 minutes, ..."

Ha. I made a 911 "my life is in immediate danger" call to the Oakland Police and they didn't show. I called again and the operator told me they were too busy. Finally after an hour two policemen showed up. I later found out Oakland had put my neighborhood on a low priority for responses. Years later an ex-Oakland cop told me in a bookstore that he quit in disgust at how poorly the department served the public.
3.23.2008 1:23am
33yearprof:
Liberal double-think in action. After discussing the importance of guns to Black freedmen and the cowardice of the 1876 Supreme Court in denying an effective individual right to arms, Lane concludes:
Firearms pose threats to modern-day urban dwellers -- crime, suicide, accidents -- that may outweigh any self-defense they provide. Unlike 19th-century rural Americans, we can call on professional police.

In the D.C. gun case, the Supreme Court should find that local governments may enact reasonable and necessary restrictions on dangerous weapons.


The conclusion is "politically correct" in twenty-first century terms and, undoubtedly the only reason the WaPo published his piece, BUT totally at odds with the first 90% of Lane's commentary. It comes as a real discordant surprise. No Black in Colfax or among those Whites later trying to gain justice for them would want any local government holding any power to restrict the possession of firearms by responsible citizens. If anything, they'd all support the concept of "more guns, more Liberty."

Just this week a woman was killed in urban Southern California WHILE she begged a 911 operator to send help. It was true in 1781 and in 1876, is today, and always will be that when the criminals come for you, YOU are the only "police" there will ever be "on the scene." The choice is to dial 911 and die or protect yourself and survive.
3.23.2008 1:33am
Elliot Reed (mail):
If conservatives would admit that constitutional interpretation is more complicated than original intent, they could strengthen the claim for a right to bear arms.
Wow, that ship sailed a long time ago. The new originalism is all about "original public meaning" or "original public understanding". The difference between those and the original intent theory is just as stark as (and pretty closely analogous to) the difference between the "intent of the legislature" and "new textualist" theories of statutory interpretation.

I'm not very closely read on this subject, but I presume the law &economics people have their own theory of Constitutional interpretation. If you were going to argue that we really ought to be reading the contemporary equivalent of Social Statics into the Constitution, that would be a conservative interpretive theory, but would bear little resemblance to any form of originalism.
3.23.2008 1:41am
Brett Bellmore:
Dilan, got news for you: Original intent is perfectly consistent with thinking the 14th amendment matters. (Originalists are aware the Constitution can be amended, they simply insist that the courts can't do it.) Mind, it does demand incorporation via the privileges and immunities clause rather than substantiative due process, but that's no big deal.
3.23.2008 2:15am
Eugene Volokh (www):
Scaldis Noel asked: "Can you name even one conservative that '(advocates) the constitutionality of laws that throw gay people in jail' to support what is essentially a blanket statement about conservatives in general?"

Maybe I'm missing something -- what about Justices Rehnquist, Scalia, and Thomas in Lawrence v. Texas? They didn't advocate the wisdom of such laws, but they expressly advocated their constitutionality, no?
3.23.2008 3:07am
Gene Hoffman (mail) (www):
I'm amused but not surprised that this topic usually leaves the story of the Deacons for Defense and Justice out. The Colfax Massacre may have been reconstruction, but blacks using arms to secure their civil rights was a mid 1960's phenomenon as well.

I'm sure glad that the DC Chief of Police isn't corruptible like the Colfax Sheriff or the Sheriff of Jonesboro, Louisiana. Looking the other way while oppression happens is just as rare as government employees digging through presidential candidates confidential information...

-Gene
3.23.2008 3:57am
jim47:
Dilan Esper:

If I recall correctly, conservative thinker Harry Jaffa engaged in a debate with Robert Bork on the pages of National Review over a decade ago in which he argued for both substantive due process and an originalism that valued reconstruction evidence, especially the place of the Declaration of Independence in the thinking of the reconstructors. My understanding is that he was also a vocal critic of the holding in Lawrence on interpretive grounds.

Jaffa comes off in the debates as more of a historian than a legal thinker, but the examples still seems to refute both the point that conservatives universally avoid reconstruction, and the idea that such a decision is made only to comport with a position on gay issues.
3.23.2008 6:37am
Letalis Maximus, Esq. (mail):
EV:

I think you mean the "Court" rather than the "court." But I quibble.

Harry Eagar:

Methinks there would not have been a stand-off had your grandfather and his friends not had "shooting arns" with which to hold off the nightriders. And it is possible that with no grandpa, there would be no...well...you. Walter Mittys, indeed.

At any rate, presuming from your statements that you are black, you might find the following interesting:

http://www.guncite.com/journals/cd-recon.html

http://www.guncite.com/journals/cd-reg.html

Enjoy.
3.23.2008 9:28am
Letalis Maximus, Esq. (mail):
Oops. That shoulda been JA instead of EV. Don't know if JA shoulda known about capitalizing Court when speaking of the Supreme Court. Sorry.
3.23.2008 9:31am
Jonathan H. Adler (mail) (www):
LM --

I do capitalize "Court" when speaking of the Supreme Court, but either Lane or the Post did not, and I reproduced the Lane passage as it was published.

JHA
3.23.2008 10:31am
Jonathan H. Adler (mail) (www):
Mr. Field --

As noted upthread, one reason why some conservatives don't spend more time on the 14th Amendment and Reconstruction in trying to interpret the 2nd Amendment is probably because much (though certainly not all) of the relevant material relates to incorporation through the 14th Amendment. See, e.g., Sen. Howard's remarks introducing the Amendment. If, as Howard suggests, one purpose of the Amendment was to bar states from violating the rights enumerated in Amendments I-VIII, we still have to figure out what those rights are and what they protect. Thus, it does not necessarily eliminate the need to figure out what "the right of the people to keep and bear arms" protects. It depends on whether one believes that the 14th Amendment adopted a different meaning of the 2nd Amendment than was adopted in 1791.

JHA
3.23.2008 10:43am
Tony Tutins (mail):
the federal juridiction would required the trial to take place in Wyoming.

Do federal courts have exclusive jurisdiction over crimes committed in National Parks? Otherwise, the case could be tried in an Idaho state court, because it has general jurisdiction.

I made a 911 "my life is in immediate danger" call to the Oakland Police and they didn't show.

I was trying to locate on sfgate.com the melancholy story of a man in SF who was killed even though he had called 911 a half hour previously. Instead I found the story of the son of pro-gun control State Senator Bruce McPherson, who was shot and killed by an armed robber duo who targeted couples out strolling on dates.

Open carry is no longer allowed in Calif due to the intimidation factor of Black Panthers drilling with their rifles, back in the 60s.

The 14th Amendment "republished" the 2nd and other amendments, as detailed in The Racist Roots of Gun Control.
3.23.2008 11:32am
Letalis Maximus, Esq. (mail):
JA:

Thanks for the explanation. However, using proper Blue Book form, should not the double indented quote from Charles Lane have been preceded by a colon at the end of your introductory sentence?
3.23.2008 11:48am
MarkField (mail):

It depends on whether one believes that the 14th Amendment adopted a different meaning of the 2nd Amendment than was adopted in 1791.


Yes, this is exactly the crux of the issue. If conservatives don't believe it did, then I haven't seen that expressed; maybe it's implicit in the continued emphasis on 1791. If they do believe those in 1868 had a different understanding -- whether on this right or any other -- then they should help develop the historical understanding and flesh out the consequences of that change.
3.23.2008 11:57am
PersonFromPorlock:
Incidentally, if you regard gun control as a Good Thing, couldn't its application to 'minorities only' be justified as affirmative action? To give minority populations a chance to catch up to (catch down to?) the majority population's gun-death rate?
3.23.2008 12:00pm
Cornellian (mail):
It depends on whether one believes that the 14th Amendment adopted a different meaning of the 2nd Amendment than was adopted in 1791.

Suppose we say that the primary purpose of the 14th Amendment was to prevent states from infringing on rights protected by the Bill of Rights. Suppose the framers of the 14th Amendment had a different understanding of what the 2d Amendment meant than the framers of the original bill of rights. Theoretically that difference shouldn't have any significance for an originalist as to the meaning of the 2d Amendment, since it's only the original understanding of the 2d Amendment that counts. But in that case, what is "incorporated" in the 14th Amendment, what the framers of the 2d Amendment thought the 2d Amendment meant, or what the framers of the 14th Amendment thought the 2d Amendment meant?
3.23.2008 1:02pm
David E. Young (mail) (www):

For all the ink spilled over the intentions of the Founders in 1791, the evidence from the 14th A has always seemed to me by far the best argument for an individual right to own guns.


The fact is that the evidence from the Founding Era about the individual rights nature of the Second Amendment is overwhelming.

There is new research, a book entitled The Founders' View of the Right to Bear Arms, that was cited a total of seventeen times to the Supreme Court in various pro-Heller amicus briefs and in the respondent's brief. The Founders' View contains considerable new information never before mentioned about the Second Amendment's development and purpose.

This new history of the Second Amendment comes from the editor of The Origin of the Second Amendment, the document collection that was cited over a hundred times in the Emerson decision from the Fifth Circuit Court of Appeals.

The fact is that there are a lot of people opposed to gun control who are not up to speed on all of the historical information that is actually available right now about the Second Amendment.

Whether the Supreme Court justices will look at any of this new material is an open question. One thing is for certain, none of the justices is interested in producing an opinion that can easily be shown to be contradicted by everwhelming and directly relevant historical evidence.

For information on The Founders' View of the Right to Bear Arms, go to the link on this page: http://www.secondamendmentinfo.com
3.23.2008 1:02pm
wuzzagrunt (mail):
Eugene Volokh wrote:

Scaldis Noel asked: "Can you name even one conservative that '(advocates) the constitutionality of laws that throw gay people in jail' to support what is essentially a blanket statement about conservatives in general?"

Maybe I'm missing something -- what about Justices Rehnquist, Scalia, and Thomas in Lawrence v. Texas? They didn't advocate the wisdom of such laws, but they expressly advocated their constitutionality, no?

Correct sir. There are a lot of stupid laws that are constitutional. Anti-sodomy statutes--many of which applied to heterosexuals--may well be idiotic, but idiotic and unjust laws are less a threat to liberty than the SCOTUS amending the Constitution on its own initiative. Some things were intentionally left to the states, and to the people, to muck up.

PersonFromPorlock wrote:

Incidentally, if you regard gun control as a Good Thing, couldn't its application to 'minorities only' be justified as affirmative action? To give minority populations a chance to catch up to (catch down to?) the majority population's gun-death rate?

You must be scads of fun at parties. Remind me to invite you to my next.
3.23.2008 1:57pm
Cornellian (mail):
Correct sir. There are a lot of stupid laws that are constitutional. Anti-sodomy statutes--many of which applied to heterosexuals--may well be idiotic, but idiotic and unjust laws are less a threat to liberty than the SCOTUS amending the Constitution on its own initiative.

There are certainly plenty of stupid, constitutional statutes around, not to mention stupid executive actions, but I suspect you'll have a hard time convincing the imprisoned targets of such statutes that their liberty is at greater risk from the statute under which they are imprisoned than the supreme court decision ruling that the statute was an unconstitutional infringement on liberty or some other constitutional provision.
3.23.2008 2:08pm
Stephen Roth (www):
I've never seen this answered satisfactorily:

If the second amendment's right to bear arms has nothing to do with a well-regulated militia, why is the militia clause there at all?
3.23.2008 2:09pm
YYY (mail):
I'm way out of my league here, but, does the term "Minute Men" mean anything to you?
3.23.2008 2:22pm
Elliot123 (mail):
If I have a gun in the house, and someone is trying to break in, and I call 911, what do I do then? Can someone from the anti-gun side advise what I should do as I wait for police to respond?

If I shout a warning that I have called 911 and the police are on the way, and the intruder persists in breaking in, is it OK to shout that I have a gun?

If he still breaks in, and confronts me in my den with a knife, what is the recommended response?
3.23.2008 2:29pm
Tony Tutins (mail):

If the second amendment's right to bear arms has nothing to do with a well-regulated militia, why is the militia clause there at all?

If the Constitution does not secure the right to keep and bear arms as one of the Blessings of Liberty, why is the prefatory We the People sentence there at all?
3.23.2008 3:36pm
wuzzagrunt (mail):
Cornellian wrote:

There are certainly plenty of stupid, constitutional statutes around, not to mention stupid executive actions, but I suspect you'll have a hard time convincing the imprisoned targets of such statutes that their liberty is at greater risk from the statute under which they are imprisoned than the supreme court decision ruling that the statute was an unconstitutional infringement on liberty or some other constitutional provision.


Same-same for anyone falsely convicted of violating a perfectly rational law, under the most scrupulous procedural and evidentiary rules. I've no doubt I would be happy to have the court make new law to set me free from prison, in such a case, but the liberty interests of a specific individual cannot necessarily be used as the basis for a uniform system of justice. No general rule will ever be able to preclude the possibility of individual injustice.

I'd like to see the death penalty go away, but there are established rules for how that gets done. Best, IMO, that we stick to them.
3.23.2008 3:54pm
Kukulkan:
Tony Tutin:

"Open carry is no longer allowed in Calif due to the intimidation factor of Black Panthers drilling with their rifles, back in the 60s."

Check out
3.23.2008 3:59pm
Harry Eagar (mail):
Letalis said:
'At any rate, presuming from your statements that you are black'

No, white. The great-grandfather who stood off the white nightriders was a racist white man, but he disliked the Klan. In fact, later, once he swore his oath of allegiance and got his civil rights back, he became one of the 'Glorious Eight' who returned South Carolina to white supremacy.

The situation was way more complicated than the simplified version we have inherited.

Gene referred to the Deacons. I hadn't heard of the Deacons before, but as I read this thread I am reminded of another group of non-whites who used their 'shooting arns' to intimidate white southerners.

I don't know a written history of this story, but I got it from my Dad (a white antiracist who was doing business in the neighborhood when it happened). This would have been in the late '50s, early '60s.

The Klan was agitating around Lumberton, N.C., and held a cross-burning one night. Suddenly, they became aware that their little group was surrounded by a much bigger group of armed men, who turned out to be members of the Lumbee Indian tribe.

The white guys skedaddled.

Turns out, though, the Lumbees were not using their Second Amendment rights to make a statement on behalf of racial equality. They were aggrieved that the Klan was lumping them in with the local African-Americans.

My granddad, the one who stood off the nightriders in '76, later was a witness in a north Georgia murder case against the Klan. During the 13 months between indictment and trial, he slept with a loaded rifle on the floor beside his bed and a loaded and cocked pistol in his hand.

In his memoirs, he wrote that the Klan never attepted anything against him during that time, but he nearly shot his neighbor, who came home drunk and was fumbling at the wrong door.

I have mixed feelings about firearms.
3.23.2008 4:02pm
Elliot123 (mail):
"I have mixed feelings about firearms."

I'd say most people do. We see they are necessry for protection against violence, but wish it weren't so.
3.23.2008 4:29pm
MarkField (mail):

The fact is that the evidence from the Founding Era about the individual rights nature of the Second Amendment is overwhelming.


If it were that overwhelming, we wouldn't be having these debates. There is "overwhelming" agreement on the age requirement for Presidents and on the number of Senators. There's no "overwhelming" evidence on most of the provisions in the Constitution.

I note that, other than Prof. Adler, nobody has yet addressed the substantive issue I raised: why are conservatives so resistant to relying on the 14th A? Is it because, as Dilan said and I suspect, that they are desperate to avoid the consequences of that reasoning on other rights?
3.23.2008 4:59pm
David E. Young (mail) (www):


The fact is that the evidence from the Founding Era about the individual rights nature of the Second Amendment is overwhelming.


If it were that overwhelming, we wouldn't be having these debates.

These debates prove that those debating disagree. They may also prove that those debating like to debate or that those debating can make a living at debating. They do not prove that those debating are familiar with all of the historical evidence available.

The point of my post was to inform those obviously interested in the Second Amendment that there is a lot more historical information available than is widely known, even among those who consider themselves the most knowledgeable and pro-gun, and that it is available in a new book that has been cited to the Supreme Court in the Heller case.

While you can drag a horse to water, you cannot make it drink.
3.23.2008 5:53pm
wuzzagrunt (mail):
David E. Young wrote:

While you can drag a horse to water, you cannot make it drink.

Some horses are apparently unwilling to admit that they've drunk their fill--if it weakens the argument for their preferred policies.
3.23.2008 6:12pm
JustAGuest:
Re: from Stephen Roth:
"I've never seen this answered satisfactorily:
If the second amendment's right to bear arms has nothing to do with a well-regulated militia, why is the militia clause there at all?"

Ans. - To clarify, the Second does not mention "the militia", it mentions "a well-regulated militia". There's a difference between "the something" and "a something". The militia clauses in the USC discuss "the militia" - i.e. armed individuals, not normally in public service, acting under the direction and authority of a valid public official. The militia clauses discuss something specific (hence the use of the definite article "the" preceding "militia"), the Second discusses a general concept (hence the use of the indefinite article "a", preceding "militia"). The Second mentions "a ... militia", because the Founders thought an armed populace better able to resist despotism than an unarmed populace. (You may agree with that belief or not). Also see EV's article on the meaning of the term "a free state".
3.23.2008 6:16pm
Tony Tutins (mail):

They were aggrieved that the Klan was lumping them in with the local African-Americans.

Not surprising. Lumbees are widely believed to be of mixed white, black, and native american ancestry. They are akin to the Melungeons. David Lynch's Blue Velvet is set in Lumberton by the way.
3.23.2008 6:48pm
zippypinhead:
Turns out that Lane's op ed piece was a Saturday warm-up for a very favorable review of his book on the Colfax massacre in today's WaPo. If nothing else, WaPo certainly takes care of its own...

Lane's non sequitur of laying out a good Reconstruction-era example supporting the individual right to keep and bear arms, but with a politically-correct anti-Heller coda grafted on the end, was anything but subtle. The ending was jarring enough that I wonder if some editor added it to make sure that the conclusion of the staffer's piece matched the newspaper's official editorial position?

Tho it will be fun to read cites to Lane's book in the first post-Heller Second Amendment incorporation case...

Incidentally: not surprisingly the quality of comments on Lane's piece on Volokh is vastly higher than on the Post's own reader comment page. Go figure...
3.23.2008 7:57pm
omarbradley:
Mark Field,

Plenty of conservatives have mentioned the 14th amendment in relation to the 2nd. In fact, many of the briefs submitted to the Court did just that so I'm sure the Justices are aware of it. In perhaps the most famous amici, that of the Senate, the House, and the VP, written by Stephen Halbrook, the Freedmen's Act and the history of the 14th amendment is listed prominently.

If you actually read the DC Opinion, Silberman even cites Dred Scott, where Taney refers to the individual right to arms and how if Scott was a citizen then the BOR would apply and he'd have a right to arms in the territory.

So, the issue of the 14th amendment is well known and is prominent in the briefs.

In Heller it isn't as crucial because the 14th amendment doesn't apply in the case and because in an oral argument you only get 30 minutes and can't focus on everything.

I suspect that if a case arises that challenges a state regulation, say Chicago's ban on guns, you will see the 14th amendment featured much more prominently than it has been in the Heller case.
3.23.2008 10:10pm
John Skookum (mail):
Stephen Roth:

If the second amendment's right to bear arms has nothing to do with a well-regulated militia, why is the militia clause there at all?

A well-educated electorate being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed.
3.23.2008 10:30pm
Harry Eagar (mail):
Whatever the Framers expected, we Southerners now have several centuries experience with firearms. I've been a newspaperman for 43 years (not all in the South), and here's my recollection of the kinds of firearms stories that have occurred within my various circulation zones:

1. Number of family members shot to death by angry, drunken, frustrated family men: hundreds.

2. Number of hunters shot to death in drunken hunting accidents: dozens.

3. Number of cops shot to death by armed householders during no-knock drug raid at wrong address: 1.

4. Number of robbers shot by armed householders defending the ol' manse: 0.
3.23.2008 10:53pm
subpatre (mail):
Harry Eager said "here's my recollection of the kinds of firearms stories that have occurred within my various circulation zones . . ."

Since reputable statistics show your proportions are backwards, this anecdote merely serves as (further) anectdotal evidence of media bias. Good show old chap!
3.23.2008 11:11pm
Clayton E. Cramer (mail) (www):

I'm sure they did (I couldn't read them all). My point is a larger one: the people I saw who first raised this issue and who've supported it for at least 10 years or so are liberals. Most of the conservative discussion I've seen, including here, involves the founding era. If the better argument is based on the 14th A -- and to me, at least, that's VERY clear -- it would seem easy to raise that. But nobody does; all the debates get bogged down in minute details of the 18th C. It seems odd to me.
That's only because recent discussion of the topic has been tied to the D.C. case--where incorporation doesn't apply. Considering how often I and other conservatives have cited Rep. John Bingham's reading of the first eight amendments as what the Fourteenth Amendment was supposed to imposed on the states, I must conclude that you just haven't read much material on this subject by conservatives. When I used some of this material in a book that was published in 1994, it wasn't even particularly new.

Remember that conservatives don't object to incorporation. We object to selective incorporation (which has no originalist basis at all). We object to incorporation that projects modern sensibilities and beliefs onto 1868. No one in 1868 thought that "equal protection" protected the right to have homosexual sex; it isn't even clear that it would have been understood to protect a right to have sex outside of marriage, since most states (perhaps all states?) had laws such as current Idaho Code 18-6603, which prohibits sex outside of marriage, and to my knowledge, every state had a law similar to Idaho Code 18-6605, which bans the "crime against nature."

Not every law that is constitutional makes sense. If I were a member of the state legislature (and there is a chance that this may be the case if I win the state senate primary in May), and I had a chance to vote for repeal of 18-6605, I would certainly do so. But the U.S. Constitution does not mandate that stupid laws are necessarily unconstitutional.
3.24.2008 12:39am
33yearprof:
Harry Eagar posted:
4. Number of robbers shot by armed householders defending the ol' manse: 0.


That's as it should be.

Successful crime requires that the criminal DOMINATE the victim long enough to get the murder/rape/robbery/assault accomplished. Thus death or injury often results when the victim resists (or not).

A successful DGU (defensive gun use) occurs when the criminal runs away. In fact, that's the most desirable result (and the most frequent). The assailant's running away leaves no one dead or injured. There is no body to provide a statistic.

This is true because almost all successful DGU's are not reported to the police. The victim justifiably believes that the police will just "f**k with them" for endangering the criminal. The victim knows that the police will neither prevent the crime, stop the crime once started, nor catch the assailant (unless the victim can provide the criminal's name, address, and phone number). If you don't need an official report for your insurance company and aren't hurt, there is nothing to gain by calling 911 except possible hassle. So victims don't.
3.24.2008 12:41am
Harry Eagar (mail):
Newspapers don't get all their information from police reports, you know.

Subpatre's notion that somehow newspapermen overlooked hundreds of corpses of dead home invaders just shows how airy this whole debate is.

The slaughtered families were real enough.
3.24.2008 12:52am
YYY (mail):
HE-

"4. Number of robbers shot by armed householders defending the ol' manse: 0."

Go to this website and lookup the state(s) you live(d) in.

http://www.nraila.org/ArmedCitizen/
3.24.2008 1:00am
Steve Nelson (mail):
Harry Eagar - it would appear that the point of your 9:33 post is that guns do more harm than good, therefore, they should be banned or heavily regulated regardless of the language of the 2nd Amendment. While that is certainly a position that reasonable people can argue for or against, it sidesteps the issue of whether there exists a constitutional right to keep and bears arms.

Furthermore, this sort of thinking leads to such comparisons as "maybe bathtubs should be banned, since, according to the CDC, the number of children accidentally drowned in them every year exceeds that of the number of children fatally shot. Perhaps we should require demonstrated proficiency in the safe and effective use of bathtubs by citizens before they are allowed to possess and use same."

My point being that we do not (should not?) determine the constitutionality of any particular object, right or action based on whether it is a net positive for society. That criterion can and maybe should be used when crafting a constitution or amending it, but not in interpreting it.
3.24.2008 2:05am
Mark Robinson (mail):

My point being that we do not (should not?) determine the constitutionality of any particular object, right or action based on whether it is a net positive for society. That criterion can and maybe should be used when crafting a constitution or amending it, but not in interpreting it.


Thank you!

Mark
3.24.2008 2:38am
Gene Hoffman (mail) (www):
Harry,

Statistics show that media coverage of mass shootings like Columbine leads to copycat killings so surely you must support limits on the press and the freedom of speech to limit them, right?

Something tells me that you don't care to have the Federal Camel's nose under your tent...

-Gene
3.24.2008 5:06am
Acksiom (mail) (www):
Again:

Since the firearms suicide rate in the usa has consistently been 1.5 times the firearms homicide rate for many years now (see WISQARS Fatal Injuries: Mortality Reports), I personally would like to know why the proponents of self-defenselessness aren't doing more about outreach towards the suicidal.

Since they claim to be motivated by public safety and the prevention of tragedies, then simply by the raw data alone they should be investing 3/5ths of their resources in that area.

And when one includes the possible decrease in firearm homicides of others by suicidal aggressors, the case for prioritizing suicide outreach over anti-gun legislation becomes even more compelling.

So why is outreach towards the suicidal apparently not being at all addressed and funded by the firearm criminalizers?

I also find myself wondering why Harry Eagar did not include this, the MOST prevalent kind of firearms death tragedies, in his list.

I mean, it's not as though it hasn't previously been pointed out to him.
3.24.2008 5:54am
Gaius Obvious (mail):

4. Number of robbers shot by armed householders defending the ol' manse: 0.


Go here and scroll down to the section "Latest Armed Self-defense News Stories." There you will see about 100 stories from the latest 10 days involving armed householders defending their homes.
3.24.2008 7:12am
Gaius Obvious (mail):
Oops. I forgot the link to the "Latest Armed Self-defense News Stories."

Here it is.

https://www.keepandbeararms.com/default.asp
3.24.2008 7:13am
RKV (mail):
Re: suicide by firearm. One word - substitution. There's more than one way to kill ones' self, and countries like Japan (where there are essentially no private firearms) have higher suicide rates per capita than the US. Banning firearms to reduce suicide is a useless endeavor, because the suicidal can and will easily find other means.



Of course banning firearms is what's desired by the gun-grabbers, not reducing suicide or crime. They want a government monopoly on arms. Other Americans recognize that this is a bad idea, and was purposely denied the government in our founding documents. I found the following recently, and think that even in the 1700s Andrew Fletcher had the right of it...

"And not only that government is tyrannical, which is tyrannically exercised; but all governments are tyrannical, which have not in their constitution a sufficient security against the arbitrary power of the prince.
3.24.2008 8:40am
PersonFromPorlock:
Gene Hoffman:

Harry,

Statistics show that media coverage of mass shootings like Columbine leads to copycat killings so surely you must support limits on the press and the freedom of speech to limit them, right?


GH, my stock letter, sent to many publications but never published, for some reason:
To the Editor:

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

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

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

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

I solicit your endorsement of this proposal.

Sincerely, etc.


;^)
3.24.2008 9:13am
wuzzagrunt (mail):
A 7 day "cooling off" period. Certainly, such a common sense regulation would not violate the constitutional guarantees of freedom of the press. To delay is not the same thing as to abridge.

How about a "one gun story per month" law? After all, nobody needs to report on dozens of shootings at one time. It's a time/place/manner restriction....right?
3.24.2008 11:05am
The Unbeliever (mail):
Good ideas, wuzzagrunt. And surely a Constitutional protection for 18th century newspapers, with their limited means of firing off bulle-- I mean, editorials, was not intended to protect semi-automatic 21st century weapons of public opinion, like the Internet!
3.24.2008 12:04pm
whit:
"The victim justifiably believes that the police will just "f**k with them" for endangering the criminal"

rubbish,.

i was with you until there.

ime, the exact opposite is true.

most cops are more than happy when homeowners blow away a burglar or otherwise lawfully use a firearm in defense of home.

not supported by my experience at all
3.24.2008 1:03pm
Kevin P. (mail):
Another site that tracks incidents of lawful self defense with guns:
http://www.claytoncramer.com/gundefenseblog/blogger.html
3.24.2008 1:26pm
Kevin P. (mail):
Harry Eagar (mail):

Whatever the Framers expected, we Southerners now have several centuries experience with firearms. I've been a newspaperman for 43 years (not all in the South), and here's my recollection of the kinds of firearms stories that have occurred within my various circulation zones:

...

4. Number of robbers shot by armed householders defending the ol' manse: 0.


Here's one for you:
Elderly Tucker man kills intruder


If a DeKalb County home invasion suspect thought an elderly Tucker couple would make an easy target Tuesday night, he thought wrong.

Now the suspect is dead, and DeKalb police say the 81-year-old homeowner will not face charges for shooting and killing the man.


Mr. Eagar, perhaps you were only looking for what you wanted to see. I suspect that this is common in your industry.

And note that this incident of defensive gun use is unusual in that the perp ended up dead. Many or most DGUs don't end with gunfire - the brandishing of the gun is sufficient to persuaded the perp to seek easier victims elsewhere.
3.24.2008 1:33pm
Erik S. Jaffe (mail) (www):
I would note that the Amicus Brief for the Institute for Justice, which I authored, spends almost all of its space discussing the history of the Fourteenth Amendment as it bears upon the interpretation of the Second Amendment, and makes the argument that the later amendment indeed would modify the earlier amendment to the extent that it had a different or more individualistic view of the right to bear arms as among the privileges and immunities of national citizens. And, as an aside, I suspect I would be categorized as "conservative" by those grousing about what conservatives do or do not think, though I would categorize myself more of a libertarian if I had to pick a label.
3.24.2008 2:47pm
Elliot123 (mail):
"Mr. Eagar, perhaps you were only looking for what you wanted to see. I suspect that this is common in your industry."

Well, maybe we should accept this is the first time in 43 years? Are newspaper people really that ignorant of events?
3.24.2008 3:13pm
Harry Eagar (mail):
I said, 'within my circulation zone.'

You guys are comparing national totals with local totals.

Pick any county you like and run my 4 examples.

You're not going to find more robber deaths than child deaths in any one of them. Ever.

You're cherrypicking.

As for the outraged armed citizenry using their firearms to defend democracy, since the Revolution there's been exactly one example: the Battle of Athens, 1946. It had its opera bouffe aspects, but it was real. However, it was dynamite, not guns, that prevailed in that one.

I'd feel more comfortable moving among armed men if I didn't think most of them were juvenile fantasists. And drunks.

I gave up hunting when I was 17 when it suddenly dawned on me that all the people I hunted with were always drinking. Seemed like a bad idea, since confirmed by my newspaper experience.
3.24.2008 4:20pm
PersonFromPorlock:
Unbeliever:

...semi-automatic 21st century weapons of public opinion....

The preferred term-of-art is "assault press."
3.24.2008 4:20pm
Gene Hoffman (mail) (www):
Harry,

Did you give up driving when you realized those drunks drove too? Cars kill an order of magnitude more people in your reporting area than guns.

-Gene
3.24.2008 4:39pm
A.C.:
I thought the real purpose of having guns in homes and small businesses was deterrence. You hardly ever hear of criminals invading occupied homes in the US, and in most parts of the country they don't invade many occupied businesses either. That may be because a fair number of householders and small business owners have guns available, but nobody knows for sure which ones.

Therefore, the sensible criminals who are out to make a profit will hit a place when no one is there. The idiots and addicts may not show this kind of restraint, but I'm not sure you can deter them in any case.
3.24.2008 4:39pm
Elliot123 (mail):
"I gave up hunting when I was 17 when it suddenly dawned on me that all the people I hunted with were always drinking. Seemed like a bad idea, since confirmed by my newspaper experience."

I gave up believing reporters for the same reason.
3.24.2008 4:43pm
Clayton E. Cramer (mail) (www):

Pick any county you like and run my 4 examples.

You're not going to find more robber deaths than child deaths in any one of them. Ever.

You're cherrypicking.
I suspect that is because most defensive uses of guns don't involve killing someone. Decent people use the minimum force required. In addition, the CDC's data on legal interventions is based on initial reports--which understate by at least half such killings by civilians.

Nonetheless: for 1979-1998, there were 6,258 legal intervention firearms deaths in the U.S.

Centers for Disease Control and Prevention, National Center for Health Statistics. Compressed Mortality File 1979-1998. CDC WONDER On-line Database, compiled from Compressed Mortality File CMF 1968-1988, Series 20, No. 2A, 2000 and CMF 1989-1998, Series 20, No. 2E, 2003. Accessed at http://wonder.cdc.gov/cmf-icd9.html on Mar 24, 2008 3:36:48 PM

A lot of those are police officers, without question. But it isn't clear to me that it is a majority of those being cops. At Civilian Gun Self-Defense Blog, we link to dozens of items a month--and these are just the ones that get media attention.

By comparison, for ages 0-14 (the next age group is 15-19, so includes legal adults) over the same period, there were 4,755 firearms accidental deaths.

Centers for Disease Control and Prevention, National Center for Health Statistics. Compressed Mortality File 1979-1998. CDC WONDER On-line Database, compiled from Compressed Mortality File CMF 1968-1988, Series 20, No. 2A, 2000 and CMF 1989-1998, Series 20, No. 2E, 2003. Accessed at http://wonder.cdc.gov/cmf-icd9.html on Mar 24, 2008 3:38:11 PM


I'd feel more comfortable moving among armed men if I didn't think most of them were juvenile fantasists. And drunks.

I gave up hunting when I was 17 when it suddenly dawned on me that all the people I hunted with were always drinking. Seemed like a bad idea, since confirmed by my newspaper experience.
Sounds to me like you have allowed your bad choices of friends to prejudice you pretty severely--to the point where you have fantasies about gun accidents killing children being vastly more common than justifiable homicides.
3.24.2008 4:44pm
percheron:
I think we've reached the point of competing prejudices here. (For the record, I don't think alcohol and firearms mix, either.)

Harry, thanks for being civil and fairly evenhanded, even if your personal experiences have led you to vastly different conclusions than mine.

(And even if I am a juvenile fantasist, that alone doesn't make me reckless, irresponsible, violent or even unsafe. ;-) )
3.24.2008 5:22pm
Harry Eagar (mail):
Well, lessee, Professor Cramer. 20 years times 3,000 counties divided by 6,258 gives an annual rate per county of about 0.1.

Hardly an epidemic.

And, Professor Cramer, I never said anything at all about gun accidents killing children. Go back and check. I only mentioned distraught fathers slaughtering their families. When I think of firearms in the home, that's the first image that comes to mind, not burglars.

The citation of suicides is problematic, too, since most people who work with suicide intervention (that I know) seem to think that guns lead to a lot more successful suicides than most any other method.

And the Battle of Athens is the most problematic of all for the argument that a nation armed to the teeth is, for that reason alone, better than one not so armed.

The good citizens of McMinn County were not better armed in 1946 than they had been in 1938. Something had intervened during the interim. They had become more politically conscious.

None of my opinions and experiences about firearms has any relevance to the constitutional problem, but here is my final thought: I don't know that the constitutional background of the 1780s has any real relevance now to what society ought to do in the 2000s.

Think about "West Side Story," written 50 years ago. The gangs were armed with zip guns, chains and knives. No self-respecting hoodlum would arm himself with a zip gun today, and maybe most of them never even heard of one.

Cars, airplanes and firearms are a lot cheaper and more reliable than they ever have been before. The United States Marines can no longer count on "civilizing them with a Krag" in backward ports as they could before the advent of the universal AK47.

When I was a young reporter, there were a lot of stories about people who came alive out of firearms affrays because of misfires. Now there's a story you seldom see any more.

Times change. Firearms change.

And, percheron, you're right, except I worry a little about fantasists creating in their minds situations that require/justify resort to shooting.
3.24.2008 10:13pm
Clayton E. Cramer (mail) (www):

20 years times 3,000 counties divided by 6,258 gives an annual rate per county of about 0.1.

Hardly an epidemic.
No, but then again, the possession of guns at home does have a deterrent effect. And the children killed in gun accidents is also hardly an epidemic, in spite of the media hype about it.


And, Professor Cramer, I never said anything at all about gun accidents killing children. Go back and check. I only mentioned distraught fathers slaughtering their families. When I think of firearms in the home, that's the first image that comes to mind, not burglars.
How often does that happen? Domestic violence (men killing their wives, and somewhat less often, women killing their husbands) does happen, but "slaughtering their families" (implying they killed their children as well)? That's pretty unusual. I read stories about it, but this is hardly a daily occurrence--and maybe not even a monthly occurrence in a country of 300 million people.


The citation of suicides is problematic, too, since most people who work with suicide intervention (that I know) seem to think that guns lead to a lot more successful suicides than most any other method.
They may think this, but they are incorrect. Kleck's Point Blank, table 6.2 shows the percentage of "successful" suicides by method: guns are close to 90%, but hanging is 80%, car exhaust is about 75%, drowning just a little less than car exhaust.

Drugs and cutting tend to be very low success rates--but there is also reason to think that many of these are cries for help, rather than serious attempts at suicide.

Popular perception is that guns are 100% successful--when they aren't. Even shots to the head are surprisingly ineffective (except at leaving someone a permanently disfigured mess).

In any case, the DC experience demonstrates the ineffectiveness of gun control for dealing with suicide. Processing Loftin's NEJM data with correction for population decline shows an impressive 11.6% decline in suicide rates after the 1976 gun control law--but a 4.5% increase in non-gun suicides. The net change was a statistically insignificant 1.5% decline in total suicides. In short, people intent on killing themselves seem to find methods of killing themselves.

I would prefer that people intent on suicide take a long, long deep breath, make some calls--and put down the gun, razor, car keys, or rope. Unless they are one of a very small number of people who are facing a life sentence for child molestation, or an agonizing terminal illness, suicide doesn't make sense.

Back in 1989, Time magazine did a propaganda piece called "Death by Gun" in which they tried to find pictures and details of every gun death in the U.S. for one week in April. While many of the suicides were pointless tragedies, I was surprised at how many of them, in a sad way, made sense. I almost made a category for "psychologists and psychiatrists who committed suicide rather than face child molestation charges" because it was so common. And there were a number of old people, dying of very painful cancers, who decided it was better to get it over with all at once. Tragedies, but somewhat understandable.
3.24.2008 11:34pm
Clayton E. Cramer (mail) (www):

None of my opinions and experiences about firearms has any relevance to the constitutional problem, but here is my final thought: I don't know that the constitutional background of the 1780s has any real relevance now to what society ought to do in the 2000s.
Darn straight! That First Amendment protection for freedom of the press has no "real relevance" to modern "assault media."
3.24.2008 11:35pm
Clayton E. Cramer (mail) (www):

I never said anything at all about gun accidents killing children. Go back and check. I only mentioned distraught fathers slaughtering their families. When I think of firearms in the home, that's the first image that comes to mind, not burglars.
And you fail again.

All children 0-14 intentionally murdered with firearms 1979-1998 (which includes not just "fathers slaughtering their families" but some gang members killed by other gang members) for the whole U.S. comes to 6,818.

Centers for Disease Control and Prevention, National Center for Health Statistics. Compressed Mortality File 1979-1998. CDC WONDER On-line Database, compiled from Compressed Mortality File CMF 1968-1988, Series 20, No. 2A, 2000 and CMF 1989-1998, Series 20, No. 2E, 2003. Accessed at http://wonder.cdc.gov/cmf-icd9.html on Mar 24, 2008 10:38:48 PM

This is just a bit higher than the legal intervention killings with firearms. Tragedies? Sure. But the idea that defensive killings are tiny compared to these domestic violence tragedies is simply false.
3.24.2008 11:43pm
33yearprof:
Harry,

There are few/no dead burglars because American burglars choose to burglarize empty homes (because they fear getting shot). See Wright &Rossi's 1986 book. Those who try it anyhow are virtually all run off by the sight of a gun in the defender's hands. Only the most persistent home invaders are shot (and most still run away to be caught at the hospital).

So, as I said earlier:
A successful DGU (defensive gun use) occurs when the criminal runs away. In fact, that's the most desirable result (and the most frequent). The assailant's running away leaves no one dead or injured. There is no body to provide a statistic.
Or to justify calling the police or even to provide a newspaper story.
3.24.2008 11:52pm
Harry Eagar (mail):
Well, I took the trouble once, when I was working in Iowa, to tot up the home invasion body count.

(The motivation, in this case, was not about firearms but about claims of a racial disparity in home invasion deaths -- either side.)

For Central Iowa, over a period of about a decade, there were four murders of householders by home invaders; no slayings of home invaders by householders.

A representative sample? I dunno. That's what happened where I was working.
3.25.2008 12:01am
Clayton E. Cramer (mail) (www):
Perhaps central Iowa back then was less worried about home invaders. Here's the home invaders collection from Civilian Gun Self-Defense Blog. Of course, the good guys don't always kill the invaders. (That's 802 different incidents over the last five or so years.)

And here's 382 residential burglary incidents. The distinction is that "home invasion" means that the bad guys knew someone was home, and intended to break in on people.
3.25.2008 12:26am
Elliot123 (mail):
"I don't know that the constitutional background of the 1780s has any real relevance now to what society ought to do in the 2000s."

Harry,

Which of the below items from the 1780s now lack relevance?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
3.25.2008 12:39am
33yearprof:
Harry Eager posted:
Well, I took the trouble once, when I was working in Iowa, to tot up the home invasion body count.

The point of both of my earlier postings is that "body count" is not relevant to the incidence of successful DGU's. Having a gun makes it LESS likely that you'll be injured, LESS likely that an assailant will be injured, and LESS likely that the encounter will generate any newspaper report or statistics.

Many incidents will be deterred and a great many (I'd estimate close to 99%) that occur will end with the assailant fleeing the scene before completing his crime. There will be no reports to alert even a watchful reporter like yourself.

No newspaper reports is not the same as no successful DGU's.
3.25.2008 1:21am
whit:
"They may think this, but they are incorrect. Kleck's Point Blank, table 6.2 shows the percentage of "successful" suicides by method: guns are close to 90%, but hanging is 80%, car exhaust is about 75%, drowning just a little less than car exhaust. "

true also note several countries where guns are nearly completely unavailable (japan, etc.) have higher suicide rates than we do. guns DO make suicides easier.

but the reality is that people who REALLY want to go through with it are usually successful.

"Drugs and cutting tend to be very low success rates--but there is also reason to think that many of these are cries for help, rather than serious attempts at suicide. "

women, fwiw, depending on you define "attempt" attempt suicide FAR more often than men, but men commit it far more than women

if you include even the lamest examples like the obligatory bottle of tylenol and such women attempt close to 10X as often

but these aren't REAL suicide attempts. they need to GET real.

if you really want to do it, there are many near foolproof ways, gun or not.

for example - go the corner drug store buy a 3cc syringe and some insulin (both over the counter here) and have at it.

nearly 100% success rate unless somebody finds ya quick

no gun needed.

these teenage girls who cut their wrists with butter knives cause little johnny told them he doesn't love her any more are not bona fide attempts, and even where guns are available these parasuicidal people won't use them
3.25.2008 1:41am
Harry Eagar (mail):
Clayton Cramer on March 24:

'How often does that happen? Domestic violence (men killing their wives, and somewhat less often, women killing their husbands) does happen, but "slaughtering their families" (implying they killed their children as well)? That's pretty unusual. I read stories about it, but this is hardly a daily occurrence--and maybe not even a monthly occurrence in a country of 300 million people.'

The Maui News on March 23:

COLUMBUS, Ga. (AP) --Police in western Georgia have determined that a father whose body was found in a wooded field next to those of his three children shot them then himself.

The Maui News on March 25:


IOWA CITY (AP) — A woman and her four children were found dead in their home Monday morning, and police later found a sixth body in a burning, wrecked van owned by her husband — a former bank executive who had been charged with embezzlement. . . .
Initial alerts said there had been a shooting at the home, but Kelsay said further investigation shows the deaths could have been the result of some other trauma. . . .
''I'm not certain that a firearm was ever involved. Nobody reported hearing any shots fired,'' Kelsay said.

+++++

I'm going to go out on a limb and guess that maybe a firearm was involved in Iowa.
3.25.2008 3:32am
Elliot123 (mail):
Those are good examples of men killing families. And I'd agree there probably was a gun involved. So, here's my question. In 43 years as a reporter, how come you couldn't just as easily find even one example of someone using a gun to shoot a home intruder?
3.25.2008 11:27am
Clayton E. Cramer (mail) (www):
I'm shocked to see two examples of men murdering their families on such a short period of time. Perhaps I am projecting my own love for my family onto others. Still, my point stands: there are a lot of successful uses of guns to stop home invasions and burglaries--and there are a lot of other uses also. Over the last five years (not quite five years), we've put up 3389 incidents on the Civilian Gun Self-Defense Blog. Remember: there are vast numbers of incidents that never get reported to the police, or where local media don't consider it worthy of reporting.
3.25.2008 12:46pm
Harry Eagar (mail):
My example was a little unfair. The cluster was fortuitous.

The family slaughter story used to be one of the South's many peculiar institutions. These stories were much more common 50 years ago.

I cannot demonstrate it but suspect one reason they have declined is that the economic desperation and isolation of the rural southern father has declined since then. Certainly his access to firearms hasn't changed much.

Elliott, I dunno. Because it almost never happens? Anyhow, never happened within the catchment area where I was reporting and editing. Not even once.

It recently and notoriously happened twice to the same householder in Dallas, but I'm not working in Dallas.

Over the years, I've reported on quite a few firearms deaths in homes, for all kinds of crazy reasons. The very first crime story I ever reported, when I was still a teenager, involved a 14-year-old whose father was 'chasing his mother around the house.' The boy got out the family 12-gauge, hid behind a door and gave his father both barrels in the back as his parents finished another lap. I never found out whether this was an even-up event that prevented the death of the wife or an example of overreaction that led to an otherwise unnecessary death because firearms were handy.

When I asked the sheriff if he was going to charge the boy, his reply was, 'Hell, no. I'da done the same thing myself.' There wasn't even an inquest.

We don't overlook corpses, you know. If there'd been an example, we'd have reported on it.

'Remember: there are vast numbers of incidents that never get reported to the police, or where local media don't consider it worthy of reporting.'

True, if we don't hear about it, we don't report it. You are incorrect though that we wouldn't consider such a story worthy of reporting. In most cases, I think we would. If it were more solid than someone hearing a stealthy sound, pulling his trusy roscoe out of the bedside table, noisily racking in a round and then noticing that the sound didn't recur. (That last is a recapitulation of several versions of 'incidents' I have seen people relate, proudly, on Internet gun threads. Not the kind of story I'd invest any time in reporting, though. Show me at least a cut window screen.)

Some of the claims on this thread have been hilarious, such as that the reason burglars don't enter occupied homes is that they fear the householders' guns. Maybe they do. But the reason they don't enter occupied homes is that they don't want to be seen. Sheeesh.
3.25.2008 3:14pm
whit:
"Some of the claims on this thread have been hilarious, such as that the reason burglars don't enter occupied homes is that they fear the householders' guns. Maybe they do. But the reason they don't enter occupied homes is that they don't want to be seen. Sheeesh."

simply not true.

compare for example, countries like switzerland (where most homeowners are armed) VERY VERY VERY low occupied burglary rate. england MUCH higher. US much lower than england. you can look at the rate of firearms ownership in a society and occupied burg's. the correlation is very close.

also, in places that have criminalized gun possession, occupied burgs have gone up.

compare state to state. as a cop in hawaii, we had WAY more occupied burgs (especially of tourists) cause nobody had guns. they'd walk RIGHT in while thye were asleep. if they woke up, oh well.

seriously. that almost NEVER happens in the seattle area.

i realize this is somewhat anecdotal, but switzerland, the UK etc. are hardly the only examples.

also NUMEROUS interviews of burglars who have stated they don't do occupied burgs PRIMARILY because they don't want to get shot.

seriously. have you ever interviewed a burglar? that's been my experience and i have read of numerous others with the same experience.
3.25.2008 4:47pm
Elliot123 (mail):
"Elliott, I dunno. Because it almost never happens? Anyhow, never happened within the catchment area where I was reporting and editing. Not even once."

Clayton seems to have presented many cases of people shooting invading crooks, and they also appear to have been reported in various newspapers. Would you be willing to reveal what portions of the country are covered by the various circulation zones from which you draw your samples?

An area that has hundreds of people shot by angry, drunken, frustrated family men, while having nobody shot by a homeowner deserves attention. If you are correct, and if your circulation areas are larger than metropolitan Mayberry, there may be some very interesting lessons to be learned. Would you be willing to reveal the regions covered by your various circulation zones?
3.25.2008 4:49pm
Elliot123 (mail):
Harry,

I really only intended to ask the question once in the above.
3.25.2008 4:51pm
Harry Eagar (mail):
whit, I'm working in Hawaii now. We do have quite a few cases of burglars creeping in hotel and condo rental rooms, but I cannot recall very many where they burglarize occupied residents' houses. Some, but not a great many. No more than in other, more heavily armed states where I've lived.

Much easier to steal stuff out of unoccupied cars at the beach.

Elliott, I've worked for newspapers in Raleigh, N.C., Norfolk, Va., Des Moines, Iowa, and, now, Maui, Hawaii. The Raleigh paper attempted to cover the eastern part of the state (one of my first jobs was editing the country correspondents), and the Iowa paper covered the entire state.
3.25.2008 5:04pm
Clayton E. Cramer (mail) (www):

Some of the claims on this thread have been hilarious, such as that the reason burglars don't enter occupied homes is that they fear the householders' guns. Maybe they do. But the reason they don't enter occupied homes is that they don't want to be seen. Sheeesh.
Which do you think is more worrisome to a burglar? Arrest? Or getting shot to death?

Yes, this is a trick question, because prisoners have been asked this question some years back. And they indicated that they were far more worried about being shot than arrested.
3.25.2008 5:40pm
jamesfreddyc (mail):
Harry Eagar: ..."True, if we don't hear about it, we don't report it. You are incorrect though that we wouldn't consider such a story worthy of reporting. ...Some of the claims on this thread have been hilarious, such as that the reason burglars don't enter occupied homes is that they fear the householders' guns. Maybe they do. But the reason they don't enter occupied homes is that they don't want to be seen. Sheeesh."

I am one of the +400,000 CCW permit holders here in Florida. I am the guy that is holding the door open for you at the gas station, the guy eating dinner with his wife at the table next to you in the resturaunt, the one standing behind you at the grocery store checkout line, and the guy along with his wife whom, just like a fire-escape plan for the home, have an emergency plan for a potential assailant that could potentially cause us physical harm or even death. And yes, if a potential assailant intends to harm or kill us, we will kill them back with more force than what they could ever bear.

Do we (my wife and I) live in constant paranoia? Absolutely not. Actually the opposite. Because we both carry firearms, train in the use of those firearms, and are prepared to defend our persons, property, and family... We live a much more comforatble life, something about having the knowledge and preparedness that brings a sense of calm —- difficult to describe.

What I can say for certain is that because of the many SERIOUS responsiblities that come with carrying a concealed firearm, it forces us to be better people. Better citizens. If we wish to maintain the ability to carry, we must refrain from abusing drugs and alcohol, not participate in fits of anger that could lead to violence, and tend to WANT TO follow the laws that decent societies set.

I find it terribly appalling when "journalists" elaborate and embelish their "reporting" when the subject is firearms. So often, thier stories project the subliminal question, "why do we need guns at all?".

...I just wish that the media could tell the whole story. Rape, murder, robbery, and physical harm are stopped by people who have made it their personal responsibility to protect themselves and their property with the one tool that gives the advantage to the good, honest citizens of this country.
3.25.2008 5:50pm
whit:
"whit, I'm working in Hawaii now. We do have quite a few cases of burglars creeping in hotel and condo rental rooms, but I cannot recall very many where they burglarize occupied residents' houses. "

correct. as i said, it's mostly tourists because they KNOW tourists don't have guns. almost no tourists have guns.

people who live in hawaii DO have guns, just not as much as some mainland locales.

"Some, but not a great many. No more than in other, more heavily armed states where I've lived. "

right. hawaii is not DC. there are plenty of armed locals in hawaii. but not da tourists, brah

"Much easier to steal stuff out of unoccupied cars at the beach. "

yes. big time fun at makena and kamaole beach park when i was there.
3.25.2008 5:58pm
Elliot123 (mail):
"Elliott, I've worked for newspapers in Raleigh, N.C., Norfolk, Va., Des Moines, Iowa, and, now, Maui, Hawaii. The Raleigh paper attempted to cover the eastern part of the state (one of my first jobs was editing the country correspondents), and the Iowa paper covered the entire state."

It's very instructive to look at Clayton's Civilian Self Defense Blog. There are about fifty North Carolina cases where guns were used in self defense. The blog provides links to the local media web site so one can read a first hand account. Take a look. It's hard to reconcile those news stories with your claim.

On August 13, 2007, NBC17 in Raleigh/Durham/Chapel Hill reported:

Wayne County Sheriff's Department officials said Antione Logan Chestnut, 19, of Dudley was shot to death after he and two other men broke into a home in the Dudley community at about 12:30 a.m.

There were two adults and four small children -- ages 4, 5,5 and 8 -- at the home at 2546 Old Mount Olive Highway at the time.

According to officials, Chestnut, Kayloe Lemont Middleton, 25, and one other man broke through a front door, ransacked the home and held the people inside at gunpoint.

Police said Chestnut fired at someone in the home. The resident shot back multiple times, killing Chestnut.
3.25.2008 6:15pm
Mark Robinson (mail):

Some of the claims on this thread have been hilarious, such as that the reason burglars don't enter occupied homes is that they fear the householders' guns. Maybe they do. But the reason they don't enter occupied homes is that they don't want to be seen. Sheeesh.


Hummm, let's see.. The rate of burglary when someone is home, about 13 percent (US) the same rate in Britain is over 50 percent. So, you are saying that burglars in Britain do not care if they get caught?

Mark
3.25.2008 7:39pm
Harry Eagar (mail):
Getting caught? Being shot?

Do you guys ever go to trials?

They don't go into occupied homes because, whether the householder is armed or not, if somebody sees 'em, they're not going to get away with that TV.

Of course, if they're crazy with meth or something, all bets are off.

The policeman five doors down the street from me was burglarized three times. Go figure.
3.26.2008 3:39am
Elliot123 (mail):
Harry,

You didn't know about the uses of guns for home defense in the various circulation zones where you worked as a newspaperman for 43 years. You told us they didn't exist. We can see from the citations privided by Clayton that you were wrong

Now you tell us about the motivations of the burglar because you have gone to trials. This doesn't inspire credibility based on experience at either trials or newspapers. Is it possible your opinions are not grounded in fact, but rather reflect an ideology?

I wouldn't dispute that a burglar is concerned with being identified. It is certainly seems a reasonable factor that the burglar might use in evaluating a target. However, do you deny that the burglar may also be dissuaded from a target because he fears an armed person is inside? If so, why?
3.26.2008 12:08pm
Harry Eagar (mail):
No, I don't deny that they would if they thought about it.

I just don't believe they think about it very much. Reasoning from A to B to C isn't a strong point for most of them.

They tend to start out pretty stupid and their mental acuity isn't improved by alcohol and drugs.

Also, since it almost never happens that a burglar is shot, they never get the 'burnt my finger' lesson that burglarizing armed householders is dangerous. I think literate people such as those who post at VC vastly overestimate the range of information that burglars operate with.
3.26.2008 4:01pm
Elliot123 (mail):
"No, I don't deny that they would if they thought about it."

That's an interesting observation about burglars. They think about being identified, but don't think about getting shot. I'd agree many are not too smart, but I'd suggest that concern about identification also requires a bit of A-B-C type reasoning.
3.26.2008 4:39pm
Big Bill (mail):
It seems so bizarre that the NAACP would blame the evil white man for selling guns to black folks. Am I the only one that remembers May Day, 1967 and the invasion of the California State Capitol by a fully armed contingent of the Black Panthers?

Huey enthroned
Panthers in the legislature
the Sac'to Bee account

And now the NAACP wants to disarm black men and sue white men for arming them. Go figure.
3.26.2008 9:56pm