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"We've Lost the Battle on What the Second Amendment Means,"

says the president of the Brady Campaign, a leading gun control group. "Seventy-five percent of the public thinks it's an individual right. Why are we arguing a theory anymore? We are concerned about what we can do practically." The story continues:

If the Supreme Court strikes down the D.C. gun ban, the Brady Campaign is hoping that it will reorient gun control groups around more limited measures that will be harder to cast as infringements of the Second Amendment.

"The NRA [National Rifle Association] won't have this fear factor," [Campaign president Paul] Helmke said.

Bob Cottrol made a similar argument nearly 20 years ago (though he's generally a pro-gun-rights scholar, and probably has a different view than the Brady Campaign about which limited gun control measures are sound).

Related Posts (on one page):

  1. Inaccurate Statement by Brady Campaign's head
  2. "We've Lost the Battle on What the Second Amendment Means,"
jack brown:
75 percent of the public thinks it's an individual right because it is an individual right.

Guns are a funny thing in this country. I'm politically a Green, basically a democratic socialist, but a gun owner and gun rights fanatic nevertheless; so are all of my (left leaning) friends from rural California where I grew up. Maybe because we're from farming families.

I find myself unable to logically and ethically justify handgun ownership (rifles for predators and hunting are something else) but own them nevertheless. Who needs logic when something's fun and counterbalances the tyrannical power of the state?
6.13.2008 3:16am
Maia:

"We are concerned about what we can do practically."

They could always disband!
6.13.2008 3:18am
CDU (mail) (www):
"We are concerned about what we can do practically."


Might I suggest buying a gun, learning how to use it safely and effectively, and encouraging other law abiding citizens to do the same?
6.13.2008 3:32am
J. Aldridge:
This issue really cracks me up...

On one hand, conservatives absolutely hold disdain when the left uses the theory of incorporation to argue for expansive rights beyond what is provided locally. But conservatives have no problem using incorporation on behalf of their beloved 2A!

Incidentally, anyone ever noticed the Fourth Amendment speaks of a "right of the people" as well, and I believed that was the last amendment to be, cough, incorporated?
6.13.2008 3:32am
HerbM (mail):
"We are concerned about what we can do practically."

Guns aren't for everyone, especially the foolish, so perhaps if you were EVER serious about wanting to stop violence (and not guns) then you could lobby for better safety training, maybe like Driver's Ed in the schools.

You could lobby for LOCKING UP THE CRIMINALS who violate your worthless Brady/NICS instead of harassing law-abiding dealers and citizens.

Really: Brady/NICS is literally worthless. Cannot be shown to work and they cost a fortune.

NICS/Brady Background checks simply don't provide any benefits ā€” as counter-intuitive as that might SOUND.

NICS/Brady Background checks are NOT even ENFORCED on CRIMINALS when they violate this law.

None of the CDC, the National Academy of Sciences of Sciences, nor DoJ
were able to find that ANY gun control reduces VIOLENT CRIME, MURDER,
SUICIDE or ACCIDENTS in any significant manner.**

Less than 100 criminals are prosecuted each year for
Brady/NICS violations ā€” and the vast majority of these
are because the authorities needed to arrest or prosecute
a criminal but can't make the real charge stick, or needs a
"predicate felony" for a conspiracy or RICO charge.

Brady/NICS background checks just don't ACCOMPLISH
ANYTHING, they cost BILLIONS, infringe rights, and are NOT
EVEN ENFORCED on criminals.

*Review of the ATF's Enforcement of Brady Act Violations Identified Through the National Instant Criminal Background Check System
Office of Inspector General's (OIG) Draft Report: Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives' Enforcement of Brady Act Violations Identified through the National Instant Criminal Background Check System. A-2004-001
http://www.usdoj.gov/oig/reports/ATF/e0406/final.pdf


**Don B. Kates and Gary A. Mauser, "Would Banning Firearms Reduce Murder and Suicide? A Review of International Evidence" (June 6, 2006). ExpressO Preprint Series. Working Paper 1413.
Cite
Cite

In this connection two recent studies are pertinent. In 2004 the U.S. National Academy of
Sciences released its evaluation from an review of 253 journal articles, 99 books, 43 government
publications and some empirical research of its own. It could not identify any gun control that had
reduced violent crime, suicide or gun accidents.(15) The same conclusion was reached in a 2003
study by the U.S. Centers for Disease Control's review of then-extant studies"(16)

(15) Charles F. Wellford, John V. Pepper, and Carol V. Petrie (eds.),
FIREARMS AND VIOLENCE: A CRITICAL REVIEW
(National Academy of Sciences, 2004). It is perhaps not amiss to note that the review panel,
which was set up during the Clinton Administration, was almost entirely composed of scholars who, to the extent
their views were publicly known before their appointments, favored gun control.
(16) "First Reports Evaluating the Effectiveness of Strategies for Preventing Violence: Firearms Laws" (CDC,
2003)
6.13.2008 5:19am
Smokey:
"WE'VE LOST THE BATTLE ON WHAT THE SECOND AMENDMENT MEANS,"
Translation: "We were unable to change the meaning of 'shall not be infringed'."
6.13.2008 6:26am
Brett Bellmore:

On one hand, conservatives absolutely hold disdain when the left uses the theory of incorporation to argue for expansive rights beyond what is provided locally.


I believe it might be a bit more accurate to say that they're a bit disdainful when the left insists on incorporating rights that aren't explicitly mentioned in the Constitution. (Mind, ignoring the 9th amendment that way IS problematic itself.) I can't recall any conservative complaints about incorporating the right to trial by jury, for instance.

And, of course, anybody ought to have disdain for the doctrine of selective incorporation.
6.13.2008 6:27am
corneille1640 (mail):
Dear Brett Bellmore:

I don't quite understand your point about the 9th amendment. Wouldn't that amendment provide an excuse to incorporate rights that aren't explicitly mentioned in the constitution? After all, it says that the omission of mention of certain rights shan't be construed to deny other rights.
6.13.2008 7:20am
JK:
I believe that "incorporation" was initially mentioned in the context of applying the bill of rights to state government via the "privileges and immunities" clause of the 14th amendment (initially of course the Bill of Rights only applied to the federal government, and states were free to have more restrictive measures).

Aldridge appears to have just been pointing out that this is yet another area where there are no real proceduralists, everyone is results oriented (including the holier-than-thou textualists/originalists).

Of course since these comment sections are filled with faux-Constitutional scholars, "incorporation" was immediately taken to mean "judicial activism," i.e. the interpretation of law (statutes, constitution, etc) in a manner that one disagrees with. So the two topics do have the logical similarity in that they show that there are no, or at least very, very few, real proceduralists.
6.13.2008 7:41am
JB:
Eventually the broad support for gun rights will make the slope from gun licensing to gun confiscation no longer slippery. Then we can pass the only reasonable gun control measure, licensing on a personal basis.

This won't involve licensing individual guns, just like the kind of car you drive isn't on your driver's license. But it will require training and passing a safety test before being allowed to have a gun. The problem with doing that now is that the slope is still slippery, and these licenses will still be used restrictively and as a means of confiscation in times of crisis.
6.13.2008 7:57am
Brett Bellmore:

"Wouldn't that amendment provide an excuse to incorporate rights that aren't explicitly mentioned in the constitution?"


Why, yes. That's why I said ignoring it that way was a problem.


"Eventually the broad support for gun rights ... Then we can pass the only reasonable gun control measure, licensing on a personal basis."



You mean the way the exercise of every other constitutionally guaranteed civil liberty is licensed? Ah, yes, who can forget the free speech test you take at the end of High school... All those people who failed it, and as a result can't talk, are a constant reminder.
6.13.2008 8:19am
AntonK (mail):
Let's call this the post "2nd Amendment" battle for the right to gun ownership. I think the opening salvos of this battle are already being fired across the country. Here in Connecticut, we've just managed to beat back legislation to stamp, and otherwise mark ammunition. Raised under the guise of assisting law enforcement, I think this is more accurately an attempt to legislate ammunition out of existence. Connecticut has also seen a spate of land use lawsuits against shooting ranges. My guess is that this is part of a broader effort attacking gun ownership.
6.13.2008 8:33am
darelf:
You know, Brett, if you're going to use complex constructions like this you're just going to have to get used to 80% of the people not understanding your meaning. People don't come here to think.
6.13.2008 8:36am
J. Aldridge:
Dear corneille1640: The purpose of the 9th was to protect against the very construction you offered.
6.13.2008 8:46am
Tom Cross (www):
You'd think with the 2nd amendment an incorporated right the courts would still allow certain kinds of gun control. Not silly bans on the sale of bayonets, but perhaps there is a compelling government interest in keeping convicted felons from purchasing fire arms and a least restrictive means of achieving that interest?
6.13.2008 8:49am
BruceM (mail) (www):
They should have lost this battle. There's no such thing as a "collective right." Either a right protects you from the government infringing an action or it doesn't. All rights belong to individuals. The whole 2nd Amendment colletive right theory is the biggest left-wing copout in the history of unsupportable legal theories. Who is the jackass who even came up with such a notion? The thing that pisses me off the most is that the left is not supposed to be against rights. That's what the right-wing is supposed to do. The right wants the government to have the power to control the citizens however it sees fit, thus government action trumps 'rights' every time.
6.13.2008 9:00am
J. Aldridge:
JK wrote: "I believe that "incorporation" was initially mentioned in the context of applying the bill of rights to state government via the "privileges and immunities" clause of the 14th amendment"

The house judiciary who adopted the 14th unanimously strikes down that nonsense with their a house report dated Jan. 30, 1871, where Bingham wrote on behalf of the committee that the privileges and immunities under the 14th did not add anything new then what had already existed under the original constitution. This effectively removed all doubt whether the privileges and immunities incorporated the first eight amendments under the 14th.

So, if the P&I's were officially declared to not have been modified under the 14th, what in the world gives anyone the screwy idea the 2A can, through forced construction, be said to incorporated via the 14th?
6.13.2008 9:04am
Brett Bellmore:

but perhaps there is a compelling government interest in keeping convicted felons from purchasing fire arms and a least restrictive means of achieving that interest?


Now, that's an interesting question. I tend to think that laws barring convicted felons from purchasing firearms are, from a policy standpoint, remarkably stupid. Given the existence of an extensive black market in firearms, they only disarm law abiding convicted felons, at the cost of forcing the rest of us to jump through all manner of legal hoops to exercise a basic civil liberty.

But, unconstitutional? No, clearly you can strip somebody of a basic civil liberty as a result of a felony conviction.

It's the means chosen where the rubber hits the road. Given the relatively low utility of such laws, the means chosen would have to be really, really non-restrictive to meet any balancing test that starts from the presumption that this is a fundamental liberty, not a mere privilege.

Maybe kill off NICS, and start tattooing felons on conviction?
6.13.2008 9:06am
Archon (mail):
Here's the straight talk about liberals and guns.

Liberals hate guns because when you lawfully keep and bear it you can effectively protect yourself from criminals. If you take away the gun, then you become reliant upon someone else for protection like the government police department.

Liberals hate self reliance and thus transfer that hate to guns. They would rather citizens rely on a government service (the police) for protection instead of taking it into their own hands.

The hatred of the individual and self reliance fuels most failed liberal social policies (welfare, social security, and food stamps are also good examples.)
6.13.2008 9:22am
corneille1640 (mail):

Dear corneille1640: The purpose of the 9th was to protect against the very construction you offered.

I'm afraid I (still) don't understand (perhaps because I'm neither an expert on the constitution nor a lawyer). From my (admittedly uninformed) standpoint, the construction I offered seems quite intuitively attuned to what the 9th amendment says. However, the 9th has always perplexed me, so if I'm wrong in my interpretation of it, I'd like to know why.
6.13.2008 9:48am
Houston Lawyer:
If the Left will give up incorporation for every limitation placed on state governments, the right would give it up with respect to the 2nd Amendment. But we still want to repeal Federal restrictions on gun ownership.

I can't imagine the courts giving up all of that jurisdiction that they have assumed over the last several decades.
6.13.2008 9:50am
David M. Nieporent (www):
On one hand, conservatives absolutely hold disdain when the left uses the theory of incorporation to argue for expansive rights beyond what is provided locally.
No, they don't. "Conservatives" -- that is, some conservatives -- disdain when the left uses the theory of emanations and penumbras to argue for expansive rights beyond what is provided in the constitution. There are virtually no conservatives who are upset about incorporation. (Some conservative legal theorists believe that it should have come through the P&I clause rather than the DP clause, but that's not the same as challenging the idea that the constitution protects rights against state encroachment.)

And of course, none of that has anything to do with the DC gun ban, which doesn't require incorporation in order to be struck down.
6.13.2008 9:53am
Ben P (mail):

"WE'VE LOST THE BATTLE ON WHAT THE SECOND AMENDMENT MEANS,"

Translation: "We were unable to change the meaning of 'shall not be infringed'."


I think you're wrong here. Look at the second part of what he said.

"hoping that it will reorient gun control groups around more limited measures that will be harder to cast as infringements of the Second Amendment."


They Lost the battle to define the meaning of "the right of the people to keep and bear arms"

NOW they're seeking to change the meaning of "Shall not be infringed"
6.13.2008 9:59am
David M. Nieporent (www):
The house judiciary who adopted the 14th unanimously strikes down that nonsense with their a house report dated Jan. 30, 1871, where Bingham wrote on behalf of the committee that the privileges and immunities under the 14th did not add anything new then what had already existed under the original constitution. This effectively removed all doubt whether the privileges and immunities incorporated the first eight amendments under the 14th.
I'm not quite sure what theory of jurisprudence holds that a single House committee can perform the role of the judicial branch of the United States government. Whatever the meaning of the 14th amendment, it isn't to be found by reading a committee report written several years after both houses of Congress and 3/4 of the states ratified it.

(And perhaps you're misinterpreting that report, because Bingham is well known for saying that the P&I are to be found in the first eight amendments to the constitution.)
6.13.2008 10:07am
AnonLawStudent:
corneille1640,

One of the objections to inclusion of a Bill of Rights at the time of the framing is that it would be interpreted as expressio unius est exclusio alterius (the express mention of one thing excludes all others). The Ninth Amendment was intended to eliminate this interpretation. Judge Bork, among others, has criticized application of the Ninth Amendment because it provides no basis for judges to ascertain what rights it covers, and thus can be interpreted to cover whatever the judge-of-the-day happens to think it means. Wikipedia has a fairly decent entry on it.
6.13.2008 10:08am
darelf:

They Lost the battle to define the meaning of "the right of the people to keep and bear arms"

NOW they're seeking to change the meaning of "Shall not be infringed"


What's sad is that they have precedent to expect that SCOTUS is perfectly willing to change the obvious meaning of words and phrases in the Constitution to suit their political/personal desires.
6.13.2008 10:11am
Archon (mail):
The sky wouldn't fall if the doctrine of incorporation was suddenly overruled. That would just mean that state courts would go back to interpreting their own state constitutions.
6.13.2008 10:17am
Elliot Reed (mail):
The commenters who are using the "correct" interpretation of the Second Amendment as an explanation for public opinion are just being silly. The public is just as ignorant of Constitutional matters as it is about everything else. But it doesn't surprise me that the gun control movement has lost the battle on this one. The individual rights view is how the language of the Second Amendment most naturally reads to a layperson, and the notion of "collective" rights is otherwise unfamiliar to the American public. The collective rights view would be hard to justify to the public even if it were actually correct (which IMHO it is not).

Ben P—I think that's rather like arguing that the First Amendment prohibits any restriction on speech whatsoever, including time, place, and manner laws. The second amendment, like the other individual-rights provisions of the Constitution, no doubt allows some restrictions on gun rights. The question is the extent of the permissible restrictions.
6.13.2008 10:25am
jazzed (mail):
"We've Lost the Battle on What the Second Amendment Means"

I find it inspiring that people are pushing novel interpretations of our laws and constitution for a number of reasons. It emphasizes why we need certain types of judges to review these novel interpretations. The intellectual rationales in support of various positions are eye-opening and thought provoking. The procedural mechanisms for review are intricate and reliable. Whether any final legal opinion and order is held with great disdain or not, this whole process is breathtaking if we reflect on the many meanings of what's happening.
6.13.2008 10:25am
Paul Milligan (mail):
I love the smell of complete capitulation in the morning :-)

They're reduced to hoping for things like 'It will only apply to federal enclaves' IOW 'there is no 2nd Amendment except on Federal land', a complete non-starter.

Then, in the same hopeful dying gasp, they try 'Handguns can still be banned as long as long guns are still allowed' coupled with 'We need to ban big nasty super-deadly assault weapons', which by their cosmetic definitions are merely 'black long guns', IOW, their same old tired' ban all guns', just broken down into different segments one at a time, but with the same end result.

Next thing on their list to try - 'As long as muzzle loaders are allowed, all other guns may be banned. Ands BTW, SUPPLIES for muzzle loaders will also be banned, but that's not guns, that's supplies, so it's OK'.
6.13.2008 10:34am
therut:
They are back where they began. Ban handguns. Not gonna happen when CCW by far the law of a large majority of states. They have lost but give them a few more millions, a fawning MSM, Rev. Pfliger and JJ and ole AL a few more marches for "Justice" and a little more time to realize their end is near. One of my greatest desires may come true before the end of the month. I plan a party and to waste some ammo having fun.
6.13.2008 10:42am
John Neff:
At the time the bill of rights was being drafted there was a general suspicion of peacetime standing armies not under the civilian control. My impression is that today liberals are more concerned about the insufficient civilian control of the military than conservatives.

In colonial times and for some years after Indian raids were a continuing threat and the locally organized militia had to be able to respond quickly and that meant members of the militia had to keep their weapons in their homes or on their person.

It became clear that the militia lacked organization, training and their officers were often of low quality and as a consequence they usually lost when they fought a trained standing army. Even though there was and still is suspicion of a peacetime standing army we have one with the National Guard as a backup.

We have a 100 million or more privately owned firearms in the United States and most of them will never cause any problems. Most of the problems occur when the firearm is used by an untrained person, a person who is intoxicated or by a criminal. My view is that the untrained and intoxicated users are as big a threat as the criminals.
6.13.2008 10:46am
Aultimer:
Any constructive ideas (collective or individual) for people who both:
1. Don't want to own a gun, and
2. Don't want to be the victim of crime committed by gun owners?
6.13.2008 10:49am
whit:

The thing that pisses me off the most is that the left is not supposed to be against rights. That's what the right-wing is supposed to do. The right wants the government to have the power to control the citizens however it sees fit, thus government action trumps 'rights' every time


that is only true if you listen to left wing propagandists. iow, it's a complete crock
6.13.2008 10:49am
Ben P (mail):

Ben Pā€”I think that's rather like arguing that the First Amendment prohibits any restriction on speech whatsoever, including time, place, and manner laws. The second amendment, like the other individual-rights provisions of the Constitution, no doubt allows some restrictions on gun rights. The question is the extent of the permissible restrictions.


I was just arguing the semantic point really.

I oppose many gun control laws, but primarily because I have yet to see any convincing evidence they actually achieve their goals. (Generally reducing crime and reducing violence)

Even if the second amendment were not in the constitution I would feel the same way, but I think if anything the second amendment requires significantly more respect than the tenuous connection that exists between crime rates and gun laws.
6.13.2008 10:52am
Virginian:

I find myself unable to logically and ethically justify handgun ownership (rifles for predators and hunting are something else) but own them nevertheless.


Let me help you. Handguns are for the two-legged predators.
6.13.2008 10:54am
whit:

Now, that's an interesting question. I tend to think that laws barring convicted felons from purchasing firearms are, from a policy standpoint, remarkably stupid. Given the existence of an extensive black market in firearms, they only disarm law abiding convicted felons, at the cost of forcing the rest of us to jump through all manner of legal hoops to exercise a basic civil liberty.



as a policy matter it's stupid. that's cause there are a fair amount of cheesy felonies and/or non-violent felonies on the books.

conviction for robbery, or burglary, sure.

tax fraud, felony shoplift, etc. is another story.
6.13.2008 10:55am
Ben P (mail):
Continuing because I hit enter before my post was done.

The Brady Bill was a good example of this. Regarding the "Assault weapons ban" all it really did was ban largely cosmetic features on certain weapons that were infrequently used in crime (compared to handguns that is), and raised the price on a few others by restricting the supply to pre-ban weapons.
6.13.2008 10:55am
Adam J:
Aultimer- Yep, live somewhere with a low violent crime rate, that's what I do.
6.13.2008 11:01am
Glenn W. Bowen (mail):

"The NRA [National Rifle Association] won't have this fear factor," [Campaign president Paul] Helmke said


...the bait hides the hook; beware.


I find myself unable to logically and ethically justify handgun ownership (rifles for predators and hunting are something else) but own them nevertheless.


tell that to a seventy year old woman who lives alone- you know, an old lady who can't rack a pump shotgun, let alone pick it up and handle the recoil.

all you have to do is think about a quarter of an inch deeper.
6.13.2008 11:01am
Ben P (mail):

I find myself unable to logically and ethically justify handgun ownership (rifles for predators and hunting are something else) but own them nevertheless.


How about justifying them because they're merely a tool?

I got into this argument with someone in a different post before.

I see no need to logically and ethically justify gun ownership. The base idea on property in this country (and western societies in general) is that you can own whatever property you want. If the government wants to prohibit you from owning certain property, it may be possible for them to do so, but there's restrictions on the extent to which they may do it, and those are tied into the justifications for the restriction.

When it's sitting unloaded in a safe a gun is really no different from a hammer or a drill or a machete or something. It's merely a piece of metal that could be put to various uses at some point in the future. Some of those uses might be illegal, most are legal and many are useful and or fun. If you want to outright prohibit me from possessing that piece of metal you have to show in some way that the mere existence of it is such a harm to society that it can't be remedied in a less intrusive way.

Regarding guns, that evidence simply isn't even close to conclusive.
6.13.2008 11:02am
wfjag:

Aultimer:
Any constructive ideas (collective or individual) for people who both:
1. Don't want to own a gun, and
2. Don't want to be the victim of crime committed by gun owners?


Move to Idaho or one of the other places where most of the people own guns, know how to use them, and are willing to use them against criminals whether protecting themselves or others. You benefit from a herd effect type of protection and the fact that criminals generally stay away from such places (or become Darwin award winners, if not smart enough to do so). But, when dealing with neighbors like that, just be sure to be polite at all times.
6.13.2008 11:15am
Sammy Finkelman (mail):
The problem here is that the true history and true meaning of the second Amendment has bene lost. The word people also occurs in the teneth Amendment and the preanble to the Constitution and it indicates some sort of extra-legal collective.
6.13.2008 11:20am
Andy Freeman (mail):
> But it will require training and passing a safety test before being allowed to have a gun.

Why?

We don't have problems that would be addressed by a safety test. We also don't have problems that would be addressed by a marksmanship test (perhaps with the exception of big city police, but that's a different problem). (You can, as they say, look up the numbers. It's less than 1k/year fatal accidents and we know that a significant fraction are suicides or covered-up murders. For example, it's impossible to clean a loaded gun.)

We do have a with-gun crime problem, but those are intentional acts (hence teaching people how to avoid unintended consequences, ie safety, is irrelevant) and we don't want the perps to be more competent.
6.13.2008 11:42am
Andy Freeman (mail):
> 2. Don't want to be the victim of crime committed by gun owners?

The most effective thing that you can do is to not associate with violent people. (Note - I didn't write gun owners.) Acquaintance provides opportunity and motive. And yes, that may include your dealer. (And, if you do have a dealer, ask yourself if many dealers would be averse to selling guns or if their supply chain wouldn't be able to get them, regardless of the law. Notice how few guns it takes for the amount of crime we have compared to the amount of product in the drug trade.)

Don't be a cabbie or work in a convenience store, fast food restaurant, or diner. It also helps to not live in high crime areas.

And, insist that violent people stay locked up for a long time, at least until their 40s. Violent crime, regardless of method, is mostly a young person's gig. People who commit with-gun violent crime work up to it. If they're warehoused before then, they don't get the chance.

All of these measures also reduce your risk of other violent crime.
6.13.2008 12:19pm
darelf:

> But it will require training and passing a safety test before being allowed to have a gun.

Why?


This likely isn't his meaning, but for me the point is that it is not just the right, but the responsibility of able citizens to have the means and reasonable training to defend themselves and their communities.

I would suggest that all "of age" citizens who are able be required to show minimum proficiency with both rifles and handguns.
6.13.2008 12:21pm
CDU (mail) (www):
Aultimer wrote:
Any constructive ideas (collective or individual) for people who both:
1. Don't want to own a gun, and
2. Don't want to be the victim of crime committed by gun owners?


The number of crimes committed using firearms by people who legally own guns is pretty minuscule. This is pretty obvious when you consider that anyone convicted of a felony cannot legally own a gun and most violent crime is committed by recidivist offenders. If you want to reduce crime, don't let violent felons out of jail.
6.13.2008 12:57pm
LarryA (mail) (www):
This won't involve licensing individual guns, just like the kind of car you drive isn't on your driver's license. But it will require training and passing a safety test before being allowed to have a gun.
Not a good analogy. You don't have to have a driver's license to purchase a car or use it on your own property. The driver's license allows you to drive on public streets.

With guns we already have that in almost every state: The concealed handgun license or its equivalent. The concealed carry system needs tweaking (national reciprocity and consistent carry rules) but it's there.
Any constructive ideas (collective or individual) for people who both:
1. Don't want to own a gun, and
2. Don't want to be the victim of crime committed by gun owners?
Make friends with the (legal) gun owners.
6.13.2008 1:23pm
Kirk:
Jack Brown,
I find myself unable to logically and ethically justify handgun ownership
Really? The current self-defense tool par excellence and you can't think of any justification for it?

And what's all this "incorporation" talk? Current Supreme Court holding is that the 2nd isn't incorporated against the states (for no good reason, I agree with Brett) whereas at least my state constitution gives my right-to-arms even more protection than the 2nd does anyway.

Aultimer,

As an addition to what Andy Freeman has already said: don't go to bars in the evening.


Brett and whit,

Would allowing violent felons to regain their firearm rights after a successful crime-free probation of non-trivial length be a workable compromise?
6.13.2008 2:00pm
Aultimer:

Aultimer wrote:

Any constructive ideas (collective or individual) for people who both:
1. Don't want to own a gun, and
2. Don't want to be the victim of crime committed by gun owners?


The number of crimes committed using firearms by people who legally own guns is pretty minuscule.

Nice dodge. Those who want to avoid being victims don't get to choose whether the guns involved are legally owned.

To adamj and wfjag -

Move? Is that really the best you can do? You realize some people might not want to move, or be able to afford it, right?

For the record, I live in a safer place than most people and have one or more firearms locked up in my home. But I realize that not everyone does, or can.
6.13.2008 2:08pm
whit:

Would allowing violent felons to regain their firearm rights after a successful crime-free probation of non-trivial length be a workable compromise?



i'm not categorically against it, but certainly no advocate for it.

i think in the entire scope of 2nd amendment issues, violent felons recovering their gun rights is not exactly up there on my list.

i'm not saying it should never happen, but ...
6.13.2008 3:03pm
JK:
Wow, the level of intellectual dishonesty on both sides of this debate is staggering. Do people really believe that the plain language of 2nd Amendment unquestionably means that there is a right to own all forms of modern weaponry with no licensure, registration, oversight or restrictions? That strikes me as just as stretched a reading as the "collective right" nonsense.

I tend to think that gun control is, generally speaking, bad policy (and has been in essentially all historical examples), but I just can't swallow this 2A absolutist crap. If you succeed in getting 2A interpreted like this, it's going to result in that amendment ultimately getting repealed. It seems to me your time would be better spent trying to convince people that gun control is a bad idea rather than pushing to nominate judges that will strike regulations with broad public support.

The constitution is a good breakwater against reactionary lawmaking, but it is a poor long term wall against popular policy.
6.13.2008 3:25pm
cjwynes (mail):

This issue really cracks me up...

On one hand, conservatives absolutely hold disdain when the left uses the theory of incorporation to argue for expansive rights beyond what is provided locally. But conservatives have no problem using incorporation on behalf of their beloved 2A!

Incidentally, anyone ever noticed the Fourth Amendment speaks of a "right of the people" as well, and I believed that was the last amendment to be, cough, incorporated?


I can think of only one prominent example in recent decades in which a conservative argument was made against applying the incorporation doctrine to something, it was Thomas' dissent in Newdow. That opinion was based on his conclusion that the Establishment Clause was a federalism provision (reserving a right to the states), and not a provision relating to individual rights, and therefore should not have been incorporated under the logic of the cases that had developed the incorporation doctrine. He had his reasons that were specific to that amendment's history, and not part of some broader view rejecting the incorporation doctrine across the board.

If the court accepts any of the interpretations of the 2nd amendment whereby it would be considered merely a federalism provision, then it will be pretty clear that there is no individual right to gun ownership. In that event, I expect it would not and should not be incorporated.

BTW, incorporating the 4th amendment did not necessarily require incorporating the judicially-crafted exclusionary rule as the proper remedy, and IIRC they were not incorporated in the same case. In fact, not all federal remedies in this area have been forced upon the states. I suppose if you consider a broad, sweeping exclusionary rule to be an essential part of the 4th amendment, you could argue the incorporation is still not complete in some sense. I think you'll find there's some opposition to the exclusionary rule (myself included), but not alot of opposition to the incorporation of the 4th amendment minus that particular remedy.
6.13.2008 3:50pm
Elliot Reed (mail):
JK--I basically agree.
I oppose many gun control laws, but primarily because I have yet to see any convincing evidence they actually achieve their goals. (Generally reducing crime and reducing violence)
Sure. I have yet to be convinced that permitting gun ownership reduces violent crime either, which is why I don't care about this issue. I have more important things to worry about.
6.13.2008 3:53pm
Brett Bellmore:

Brett and whit,

Would allowing violent felons to regain their firearm rights after a successful crime-free probation of non-trivial length be a workable compromise?


While I have SEVERE problems with "felony inflation", keep in mind that my objection to the current laws barring gun ownership by released felons focuses on the imposition on non-felons inherent in the futile efforts to enforce these laws. I don't see how your proposed compromise addresses this at all.
6.13.2008 3:59pm
Dan Hamilton:

I tend to think that gun control is, generally speaking, bad policy (and has been in essentially all historical examples), but I just can't swallow this 2A absolutist crap. If you succeed in getting 2A interpreted like this, it's going to result in that amendment ultimately getting repealed.


Please. Do you really think that all those NFA weapons out there are never used in crimes because they are registered?
The NFA weapons out there run from a MAC hose to Armed Planes, Tanks, Naval Guns (6"), 88FLAKs, and stuff that would send a gun control beliver into screeming fits. Those have been out there for 60+ years. Criminal use? I believe one MAC hose owned by a police officer.

You are doing the same exact thing as the gun controllers when they say that concealed carry will mean the wild west and blood in the streets. And it NEVER happens.

The 2ed means everything but NBC. Because NBC is no good for fighting the government or invaders. It is also no good for self defense. Anything else, if you can afford it, have fun.

Watch some of the machine gun meet videos (Dillion, others) just to see what is out there. You would be supprised.
6.13.2008 4:07pm
Kirk:
Brett,

Say more, then. Do you object to a simple background check to find out if a proposed purchaser is in fact a felon, or dangerously mentally ill? Or do you have something else in mind? Because the former is about all I'd willingly tolerate, and scrap all the pointless waiting periods (beyond that needed for the background check to be actually made), one-handgun-a-month restrictions, FOID cards, phony "assault-weapon" and magazine capacity restrictions, and all the rest.
6.13.2008 5:48pm
JK:
Dan, I can't make heads or tails out of your post. You quoted me saying that I think that gun control is generally a bad, and then you tried to convince me of that point.

I didn't take much of a position on what arms control is or is not a good idea. What I did say is that the plain language of the 2nd Amendment simply doesn't necessarily mean unrestricted access to all modern weaponry. Frankly I don't have a well thought out position on whether as a matter of policy individuals should be able to purchase tanks, but I do think that it's nuts to conclude that the plain language of the 2nd Amendment unquestionably protects the right of an individual to purchase a tank.

Maybe there are reasonable interpretations of the 2nd Amendment that provide a right to purchase a tank, but there are certainly other reasonable interpretations of the plain language that grants a right that does not include tank ownership. That's the problem (or one of them) with textualism (and to a lesser extent originalism): the plain language of the Constitution (or any document) simply isn't as clear as the theories proponents would like to believe.
6.13.2008 5:51pm
Smokey:
Aultimer:
Any constructive ideas (collective or individual) for people who both:
1. Don't want to own a gun, and
2. Don't want to be the victim of crime committed by gun owners?
1. Program 9-1-1 on your cell phone speed dial, and
2. Carry your lucky rabbit's foot at all times

Because maybe the cops will be having a donut right around the corner, and will respond in under 2 minutes.

[BTW, I assumed you meant illegal gun owners in #2 above. Because legal gun owners are almost never a problem. Ever. You'd be more likely to be struck by lightning.]

Now that I gave a flip answer to your question [& I was just kidding], I might as well continue on in the same vein:

FIREARMS REFRESHER COURSE:

1. An armed man is a citizen. An unarmed man is a subject.
2. A gun in the hand is better than a cop on the phone.
3. Colt: The original point and click interface.
4. Gun control is not about guns; it's about control.
5. If guns are outlawed, can we use swords?
6. If guns cause crime, then spoons make Rosie fat.
7. "Free" men do not ask permission to bear arms.
8. If you don't know your rights you don't have any.
9. Those who trade liberty for security have neither.
10. The United States Constitution (c) 1791. All Rights Reserved.
11. What part of "shall not be infringed" do you NOT understand?
12. The Second Amendment is in place in case the government ignores the others.
13. 64,999,987 legal firearm owners killed no one yesterday.
14. Guns only have two enemies: rust and politicians.
15. Know guns, know peace, know safety. - No guns, no peace, no safety.
16. You don't shoot to kill; you shoot to stay alive.
17. 911 - government sponsored Dial-a-Prayer.
18. Assault is a behavior, not a device.
19. Criminals love gun control -- it makes their job safer.
20. If guns cause crime, then matches cause arson.
21. Only a government that is afraid of its citizens tries to control them.
22. You only have the rights you are willing to fight for.
23. Enforce the "gun control laws" we already have -- don't make more.
24. When you remove the people's right to bear arms, you create slaves.
25. The American Revolution would never have happened with gun control.


Rules For A Gunfight:

1. Bring a gun. Preferably, bring at least two guns. Bring all of your friends who have guns.
2. Anything worth shooting is worth shooting twice. Ammunition is cheap - life is expensive.
3. Only hits count. The only thing worse than a miss is a slow miss.
4. If your shooting stance is good, you're probably not moving fast enough or using cover correctly.
5. Move away from your attacker. Distance is your friend. (Lateral and diagonal movement are preferred.)
6. If you can choose what to bring to a gunfight, bring a long gun and a friend with a long gun.
7. In ten years nobody will remember the details of caliber, stance, or tactics. They will only remember who lived.
8. If you are not shooting, you should be communicating, reloading, and running.
9. Accuracy is relative: most combat shooting standards will be more dependent on "pucker factor" than the inherent accuracy of the gun. Use a gun that works EVERY TIME. "All skill is in vain when an Angel blows the powder from the flintlock of your musket."
10. Someday someone may kill you with your own gun, but they should have to beat you to death with it because it is empty.
11. Always cheat, always win. The only unfair fight is the one you lose.
12. Have a plan.
13. Have a back-up plan, because the first one won't work.
14. Use cover or concealment as much as possible.
15. Flank your adversary when possible. Protect yours.
16. Don't drop your guard.
17. Always tactical load and threat scan 360 degrees.
18. Watch their hands. Hands kill. (In God we trust. Everyone else, keep your hands where I can see them.)
19. Decide to be aggressive ENOUGH, quickly ENOUGH.
20. The faster you finish the fight, the less shot you will get.
21. Be polite. Be professional. But, have a plan to kill everyone you meet.
22. Be courteous to everyone, friendly to no one.
23. Your number one option for personal security is a lifelong commitment to avoidance, deterrence, and de-escalation.
24. You can't miss fast enough to win.
25. The only purpose of a hand gun is to fight your way back to the rifle you should not have dropped in the first place.


That should help.
6.13.2008 5:57pm
Elliot Reed (mail):
Maybe there are reasonable interpretations of the 2nd Amendment that provide a right to purchase a tank, but there are certainly other reasonable interpretations of the plain language that grants a right that does not include tank ownership. That's the problem (or one of them) with textualism (and to a lesser extent originalism): the plain language of the Constitution (or any document) simply isn't as clear as the theories proponents would like to believe.
I agree with you about the 2nd Amendment, but not about textualism/originalism. No legal theory provides a definite, unambigious answer to all legal questions. Nor have I ever seen an advocate of any theory, except maybe laypeople who have no idea what they're talking about, claim that their theory does answer all questions. It's not really a criticism to point out that textualism regularly underdetermines individual cases since every theory of legal interpretation shares this property.

FWIW, I am not an advocate of textualism, whether statutory or constitutional. I am not a believer in grandiose unifying theories.
6.13.2008 6:27pm
Elliot Reed (mail):
Assault is a behavior, not a device.
Actually, assault is either (a) an attempted battery, (b) the intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm, or (c) an act by defendant with the intent of creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff's person, and that does in fact cause such apprehension.

Back to BarBri . . .
6.13.2008 6:37pm
Russ (mail):
I have yet to be convinced that permitting gun ownership reduces violent crime either...

Read John Lott.
6.13.2008 6:51pm
Brett Bellmore:

Do you object to a simple background check to find out if a proposed purchaser is in fact a felon, or dangerously mentally ill?


I have to think there's a better way to do it, which places almost all the burden on that tiny fraction of the population we're trying to identify, instead of the vast majority of people who aren't felons or dangerously mentally ill. A tattoo, or wrist bracelet, or something of the sort, to identify people in the denied class. If you're going to identify people who can't safely be permitted to possess weapons, and leave them walking around free, perhaps they ought to be identifiable WITHOUT a call to the federal government?

The problems with NICS are well known to gun owners: The system can be used to compile a list of gun owners, it can be shut down to block gun purchases nation-wide. Databases of denied individuals can be arbitrarily added to, and difficult to be removed from. (No fly list, anyone?) I suspect these problems are viewed in certain quarters as more of features than bugs.
6.13.2008 6:53pm
Kirk:
perhaps they ought to be identifiable WITHOUT a call to the federal government?

OK, that's certainly a reasonable desire.
6.13.2008 7:12pm
whit:

Actually, assault is either (a) an attempted battery, (b) the intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm, or (c) an act by defendant with the intent of creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff's person, and that does in fact cause such apprehension.




actually... if you want to get snarky, you aren't correct either ... since it depends on jurisdiction.

in WA state, an assault IS a battery, since there is no such crime as "Assault and Battery". i arrest people for Assault when they punch somebody.

on the other hand, your above definition in (1) would be attempted assault, not assault.

and that's a behavior, not consistent with your definition.

so, again... it depends.
6.13.2008 10:52pm
Clayton E. Cramer (mail) (www):

Do people really believe that the plain language of 2nd Amendment unquestionably means that there is a right to own all forms of modern weaponry with no licensure, registration, oversight or restrictions?
You would have a hard time finding any 2nd Amendment scholars who make that argument. Don Kates and I are working on a paper right now addressing some of those questions. And we aren't the first to do so.
6.14.2008 12:03am
zippypinhead:
Coming late to this thread is liberating in a sense because a lot of the comments have already touched on my thoughts.

But one striking thing about Helmke's statement is just how much he sounds like he's setting up the anti-gun movement to take advantage of the type of strategy adopted by some of the pro-life forces years ago at the peak of the pro-abortion movement: use incrementalist tactics, exploit any weaknesses at the margin, take advantage of your opponent's complacency, and most importantly, bide your time. Add to this strategically exploiting the PR "benefits" of any future firearms tragedies to sway public opinion, and in a generation or so, Helmke and his fellow travelers may still be able to achieve at least some big chunks of their agenda.

Or, to put it differently, the Supreme Court's Heller decision won't be a final victory for pro-Second Amendment forces, but just the beginning of a new and very different front in the ongoing war against a very determined enemy. The nature of this war will depend on a lot of things we don't know yet (e.g., whether the Court adopts the SG's invitation to adopt "intermediate scrutiny"), but a war there will be.
6.14.2008 7:48am
Brett Bellmore:
The nice thing is that a Heller win doesn't give Helmke any new weapons to fight with. He doesn't have to give up and go away, he'll still have some options, but there won't be anything he could do after that decision that they weren't doing all along. Whereas a win for Heller adds all sorts of arrows to the pro-gun quiver.

The interesting thing to watch will be the ACLU. Their position on the 2nd amendment has always been intellectually indefensible, driven more by the need to avoid pissing off anti-gun donors, (And avoid associating with the sort of people who'd flock to the ACLU if it DID defend the 2nd amendment!) but the Supreme court finally putting an end to that 'collective right' nonsense would put them in a very difficult position to defend.
6.14.2008 9:09am
Mike G (mail) (www):
Aultimer-

Looking at US cities, you find that about 90% of shooters and 80% of "victims" are convicted felons in shootings where death results. I've seen no less than 4 major US cities within 3% of those numbers, and can't imagine there's much more of a swing. Every once in a while, you get a little girl hit by a stray bullet or an armed robbery gone wrong, but for the most part, not being a criminal engaged in criminal activity is your #1 best way to not get lethally shot, statistically.

I do not know if these numbers would be similar if non-lethal shootings were incorporated, but generally speaking, the answer you called a "dodge" is not, IMHO. Picking your associates is the very best by-the-numbers way to not get shot, seeing as the felons (who do most of the shooting) are de facto "owners of illegal guns."
6.14.2008 6:12pm