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Eric Holder on firearms policy:

Earlier this year, Eric Holder--along with Janet Reno and several other former officials from the Clinton Department of Justice--co-signed an amicus brief in District of Columbia v. Heller. The brief was filed in support of DC's ban on all handguns, and ban on the use of any firearm for self-defense in the home. The brief argued that the Second Amendment is a "collective" right, not an individual one, and asserted that belief in the collective right had been the consistent policy of the U.S. Department of Justice since the FDR administration. A brief filed by some other former DOJ officials (including several Attorneys General, and Stuart Gerson, who was Acting Attorney General until Janet Reno was confirmed)took issue with the Reno-Holder brief's characterization of DOJ's viewpoint.

But at the least, the Reno-Holder brief accurately expressed the position of the Department of Justice when Janet Reno was Attorney General and Eric Holder was Deputy Attorney General. At the oral argument before the Fifth Circuit in United States v. Emerson, the Assistant U.S. Attorney told the panel that the Second Amendment was no barrier to gun confiscation, not even of the confiscation of guns from on-duty National Guardsmen.

As Deputy Attorney General, Holder was a strong supporter of restrictive gun control. He advocated federal licensing of handgun owners, a three day waiting period on handgun sales, rationing handgun sales to no more than one per month, banning possession of handguns and so-called "assault weapons" (cosmetically incorrect guns) by anyone under age of 21, a gun show restriction bill that would have given the federal government the power to shut down all gun shows, national gun registration, and mandatory prison sentences for trivial offenses (e.g., giving your son an heirloom handgun for Christmas, if he were two weeks shy of his 21st birthday). He also promoted the factoid that "Every day that goes by, about 12, 13 more children in this country die from gun violence"--a statistic is true only if one counts 18-year-old gangsters who shoot each other as "children."(Sources: Holder testimony before House Judiciary Committee, Subcommitee on Crime, May 27,1999; Holder Weekly Briefing, May 20, 2000. One of the bills that Holder endorsed is detailed in my 1999 Issue Paper "Unfair and Unconstitutional.")

After 9/11, he penned a Washington Post op-ed, "Keeping Guns Away From Terrorists" arguing that a new law should give "the Bureau of Alcohol, Tobacco and Firearms a record of every firearm sale." He also stated that prospective gun buyers should be checked against the secret "watch lists" compiled by various government entities. (In an Issue Paper on the watch list proposal, I quote a FBI spokesman stating that there is no cause to deny gun ownership to someone simply because she is on the FBI list.)

After the D.C. Circuit Court of Appeals ruled that the D.C. handgun ban and self-defense ban were unconstitutional in 2007, Holder complained that the decision "opens the door to more people having more access to guns and putting guns on the streets."

Holder played a key role in the gunpoint, night-time kidnapping of Elian Gonzalez. The pretext for the paramilitary invasion of the six-year-old's home was that someone in his family might have been licensed to carry a handgun under Florida law. Although a Pulitzer Prize-winning photo showed a federal agent dressed like a soldier and pointing a machine gun at the man who was holding the terrified child, Holder claimed that Gonzalez "was not taken at the point of a gun" and that the federal agents whom Holder had sent to capture Gonzalez had acted "very sensitively." If Mr. Holder believes that breaking down a door with a battering ram, pointing guns at children (not just Elian), and yelling "Get down, get down, we'll shoot" is example of acting "very sensitively," his judgment about the responsible use of firearms is not as acute as would be desirable for a cabinet officer who would be in charge of thousands and thousands of armed federal agents, many of them paramilitary agents with machine guns.

ARCraig (mail):
Christ. It truly is the second coming of Janet Reno.

Obama sure didn't take long to piss on everyone who thought he'd bring actual reform.
11.20.2008 7:56pm
Anonperson (mail):
Leaving aside for the moment whether or not excessive force was used in the Elian case, I don't understand the case for keeping Elian away from his father. A child's only living parent wants the child back. That would seem to be an open and shut case.
11.20.2008 8:04pm
LTEC (mail) (www):
In the NRO article you write: "As in Waco, the people in the household were readily available to authorities, and regularly dealt with them in a peaceful manner. As in Waco, the head of the household showed a willingness to negotiate any problems."

Perhaps you think the FBI firebombed the house in Waco. I don't. I (and many others) think that David Koresh firebombed his own house rather than let the FBI enter. This less than peaceful act shows that the FBI was right to very afraid of Koresh. Their sin here was not to overestimate but rather to underestimate the viciousness of the "head of the household".
11.20.2008 8:08pm
Blackadder (mail):
I don't understand the case for keeping Elian away from his father. A child's only living parent wants the child back.

The reason Elian's father was his "only living parent" was because his mother died getting him to the United States.
11.20.2008 8:19pm
Kazinski:
After seeing this my view remains the same, Republicans certainly should follow their conscience in opposing Holders nomination but they shouldn't attempt to obstruct it. However they should use the hearings to get a full airing of Holder's views on gun control, Marc Rich, Jack Quinn and even Elian Gonzales. Nothing wrong with getting all the information out there.

I will note also that while gun control is a hot button topic here, Instapundit is dinging Holder for being a hawk on the drug war. I doubt its the start of a winning freedom coalition to stop Holder, but its interesting.
11.20.2008 8:20pm
therut (mail):
How can we have an Attorney General who just recently showed total disrespect for our 2nd amendment rights? Why should the citizens trust this man to protect our rights? I see none.
11.20.2008 8:25pm
whit:

How can we have an Attorney General who just recently showed total disrespect for our 2nd amendment rights?


because we have a president-elect who has showed total disrespect for our 2nd amendment rights.
11.20.2008 8:31pm
fortyninerdweet (mail):
blackadder. And how did this change the situation?
11.20.2008 8:32pm
ARCraig (mail):
LTEC- Regardless of what happened later, the whole fiasco stemmed from the needless adrenalin-junkie initial raid. Just wait for the guy to go buy his friggin' groceries. It's not like he was holed up in there.

It's just another example of the frightening problem with unnecessarily aggressive paramilitary police tactics that Radley Balko highlights so excellently in his CATO policy paper Overkill.
11.20.2008 8:33pm
Brett Bellmore:

because we have a president-elect who has showed total disrespect for our 2nd amendment rights.


Technically, we have a president-elect who lied about how much respect he had for our 2nd amendment rights. Granted, informed voters would have known he was lying, but I have to think that the lies must have fooled at least SOME people.

Now that he's won the election, apparently the mask is starting to come off.
11.20.2008 8:39pm
Elliot123 (mail):
"LTEC- Regardless of what happened later, the whole fiasco stemmed from the needless adrenalin-junkie initial raid. Just wait for the guy to go buy his friggin' groceries. It's not like he was holed up in there."

A bit like waiting for David Koresh to go on his morning jog. But, I wonder if the TV people would arranged covereage for a grocery trip or a jogger?
11.20.2008 8:41pm
Jim Farhad:
It's one thing for Pres. Bush, in a foolish effort to impress African-Americans, to hire mediocre if not totally inadequate persons such as Colin Powell and "Condo" Rice.

Why would President-elect Obama possibly hire a gent such as Mr. Holder? Solidarity within the "community?" Sheer spite? Lack of judgement?
11.20.2008 8:41pm
Passing By:
Just curious.... I understand how you can execute an arrest warrant against somebody who is out for a jog, but how do you execute the search warrant for their premises without, you know, going there?
11.20.2008 8:50pm
R Gould-Saltman (mail):
Is it at least possible that neither Obama nor Holder regard the interpretation of the 2nd Amendment as among the top 300 or so most important issues to be addressed by the DOJ at this moment in our history?


Just askin'.
11.20.2008 8:54pm
Brett Bellmore:

But, I wonder if the TV people would arranged covereage for a grocery trip or a jogger?


Doesn't matter, the BATF was handling their own video recording, in hopes of getting some good footage. Pity the way all the tapes came out blank...

Seriously, they not only could have staged a raid when Koresh was out getting groceries or something, they could have simply accepted his invitation to come by peacefully, which was issued when the Davidians discovered a raid was in the works. You know, instead of accellerating their plans for an armed confrontation once the element of surprise was lost?

Perhaps the most damning revelation to come out later, (There's a lot of competition.) was that the BATF had no contingency plan for the Davidians greeting them peacefully; It was going to be a full out, armed assault, guns blazing, even if the Davidians had played proper little sheeple, lying on the floor in the approved posture for an armed government assault.
11.20.2008 8:57pm
notaclue (mail):
R Gould-Saltman, you may be right that Obama &co. do not place a high priority on attacking our 2nd Amendment rights. However, it gives me little relief to think that they can do so any time they wish.
11.20.2008 9:01pm
richard cabeza:
Is it at least possible that neither Obama nor Holder regard the interpretation of the 2nd Amendment as among the top 300 or so most important issues to be addressed by the DOJ at this moment in our history?


Yeah, geez. Give 'em a chance to rape us with their hammer, and then they'll pick up the sickle.
11.20.2008 9:05pm
lostmycookies (mail):
Is anyone bothered by the fact that this guy is CLEARLY a fan of the use of overwhelming force at the discretion of the executive? My gosh, after GWB cleared the way for a tyrant, we have a sycopant as AG. Is this what Obo wants? And if it is, what is Obo?

That Reno is not rotting in a jail cell is proof enough that it's bye bye freedom in the US. Just wait until Comrade Chavez orders the extradition of Exxon Execs, and Holder sends a few hundred storm troopers to round them up, and, ooops, a firefight breaks out....
11.20.2008 9:10pm
wm13:
Although I personally was outraged by the Elian Gonzalez raid, and have not since regarded Janet Reno as a fellow citizen, the polls showed pretty clearly that most Americans don't much like immigrants who argue with the federal government. So this is a loser issue. I would suggest that Republicans concentrate on the Second Amendment, which is much more popular.
11.20.2008 9:11pm
Anonperson (mail):
The reason Elian's father was his "only living parent" was because his mother died getting him to the United States.

I don't see how that changes anything. Is there a legal principle that can be articulated to apply to this?
11.20.2008 9:23pm
Gary Imhoff (mail) (www):
On the other hand, while Holder was active in opposition to Second Amendment rights, he was very, shall we say, restrained in government corruption cases when he was the US Attorney for the District of Columbia. The Washington City Paper wrote a detailed article at the time (March 7, 1997) about his failure to prosecute corruption cases. In 2002, I wrote, "Eric Holder, during his entire three-and-a-half-year term as US Attorney during the last Barry administration, couldn't find a single case of high-level governmental corruption to prosecute — which cynics like me think was his greatest qualification for being named as Deputy US Attorney General in the Clinton Administration."

Gun owners should be nervous about Holder, but corrupt Obama administration officials have nothing to worry about.
11.20.2008 9:26pm
Allan Walstad (mail):
It will be interesting to see whether Obama is willing to squander political capital on efforts to undermine 2A. I almost hope he goes at it full-bore (no pun intended). He'll alienate the pro-gun Democrats (not a null set) in Congress and have at least a chance of setting up an electoral reaction rather similar to 1994.

Obama's "mandate" is not very robust. He's just a smoother-talking, better-looking version of Hillary Clinton who opposed global military interventionism before he was for it. The only reason he got elected is that Bush sold out on so many of the principles he ran on in 2000, too many of the Republicans who should have challenged him just followed along like ducklings, and the GOP nomination dropped bizarrely into the lap of a very weak candidate.
11.20.2008 9:27pm
Gary Imhoff (mail) (www):
For some reason, neither link showed up in my message above, so I'll just give the URL's as text.

The Washington City Paper article by Stephanie Mencimer is at http://www.washingtoncitypaper.com/display.php?id=12207

My quotation is at http://www.dcwatch.com/themail/2002/02-10-23.htm
11.20.2008 9:31pm
Allan (mail):
What makes you all so sure our next Attorney General would not respect a Supreme Court ruling? Are you projecting?
11.20.2008 9:31pm
Tatil:

night-time kidnapping of Elian Gonzalez

Is this coming from a legal blog? Unbelievable... Weren't there numerous court decisons, appeals etc before the government had to do something to enforce these decisions? The family holding the child against his only living parent's wishes was not holed up in that house alone, there was a whole community of people resisting and the local law enforcement agency declined to cooperate with the federal government. In any crown control problem, the law enforcement agencies act with overwhelming force to avoid confrontation.
In any case, without any broken bones or bloody noses, it is a bit too much to call this use of excessive force.

If the same thing happened to an American father, who would be called the kidnappers? I guess I need to add Dave Kopel to the list of people who cannot be trusted to give a level headed analysis.
11.20.2008 9:48pm
Constantin:
Is it at least possible that neither Obama nor Holder regard the interpretation of the 2nd Amendment as among the top 300 or so most important issues to be addressed by the DOJ at this moment in our history?

It's not really their say. The guys who set this thing up put it in the Top Ten of most important issues. The person who swears to defend the Constitution should pay appropriate respect.
11.20.2008 9:56pm
Michael Masinter (mail):
Extensive litigation followed the Elian incident; various plaintiffs claimed excessive force and sued both the on scene officers and Eric Holder, as well as Janet Reno and other supervisory officals. The Court of Appeals upheld the district court's dismissal of the claim against Holder and other supervisory officials for lack of any evidence that he (or they) ordered or were deliberately indifferent to the use of excessive force. Dalrymple v. Reno, 334 F.3d 991 (11th Cir. 2003). The district court permitted the claims against the on scene officers to go forward, and held a six day trial to determine whether any of the on scene officers used excessive force. After hearing evidence of the conditions that prevailed on the street and a full accounht from witnesses of the events, the court found that all force used was reasonable under the circumstances and entered judgment for all defendants. The Court of Appeals affirmed. Dalrymple v. U.S., 460 F.3d 1318 (2006).

Alleging excessive force is easy; all it takes is a keyboard and a blog on which to post the claim. Proving it is altogether different; that requires actual evidence. Finding the cases that adjudicated the claims and found them baseless is quite easy too.
11.20.2008 9:56pm
Richard Aubrey (mail):
It is difficult to imagine anybody voting for O who is particularly concerned about 2A. So, even if a 2A fan says, your guy lied, the response is likely to be, at the most sympathetic, "So?". Most of them will probably want to know why you want a gun, anyway.
11.20.2008 9:57pm
Allan Walstad (mail):

What makes you all so sure our next Attorney General would not respect a Supreme Court ruling?

I'm not sure what the Obama administration will do. But it's pretty well universally understood that Heller, while welcome to supporters of the right to bear arms, could easily turn out be very limited in effect. The administration has a substantial influence over how that plays out. And Obama's choices for key positions would seem to offer a glimpse of where he'll try to go.
11.20.2008 10:05pm
David Warner:
Tatil,

"In any case, without any broken bones or bloody noses, it is a bit too much to call this use of excessive force."

A picture is worth a thousand words.

Obama was never interested in protecting or even acknowledging 2nd Amendment rights. He's an ubertechnocrat and in this case the experts (the police) like their monopoly on armed force.
11.20.2008 10:14pm
David Warner:
Oops, here's the other picture.
11.20.2008 10:16pm
jukeboxgrad (mail):
warner:

A picture is worth a thousand words.


Great idea! Base your argument on a single inflammatory photo, and completely ignore the actual findings by actual courts based on actual evidence, which indicate that the force actually used was actually reasonable, under the actual circumstances.
11.20.2008 10:38pm
jukeboxgrad (mail):
In 2004, the GOP decided it was a good idea, politically, to relitigate the 60s. So they swiftboated Kerry, and this worked (and I realize he opened the door for them to pursue the subject). In 2008, the GOP decided it was still a good idea, politically, to relitigate the 60s. So they made a big fuss about Bill Ayers, and this didn't work.

I think most people have no further patience for relitigating the 60s. And I think most people are similarly uninterested in relitigating Janet Reno, Waco, and Elian Gonzalez. But making a fuss about those things will be a great way for the GOP to remind the country that it's terribly out-of-touch with what most people are concerned about right now.

Also, as far as gun rights, this is an awkward moment, politically. A bunch of bad things have happened, all in the last few weeks. Like this:

Marysville man held in shooting of daughter, 6 … The father of a 6-year-old Marysville girl who was fatally shot at her home Sunday had been drinking double shots of vodka while he cleaned his guns


And this:

An 8-year-old boy died after accidentally shooting himself in the head while firing an Uzi submachine gun under adult supervision at a gun fair.


And this:

A Galveston County boy and his 59-year-old father have both died after police say the teen shot his father and turned the gun on himself during an argument over a fast-food order Sunday.


And this:

An 8-year-old Arizona boy charged with premeditated murder in the deaths of his father and another man shot each victim at least four times with a .22-caliber rifle, methodically stopping and reloading as he killed them, prosecutors said Monday.


So strictly from the perspective of the currents news climate, this is the wrong moment to try to convince the public that it's a good thing that Americans own so many guns. And that we should be afraid of attempts to regulate them.
11.20.2008 10:38pm
Matthew K:
How can any respectable lawyer get this upset over Elian Gonzalez? From the wikipedia:
"After being informed of the decision, Marisleysis said to a Justice Department community relations officer, "You think we just have cameras in the house? If people try to come in, they could be hurt.""
The picture is irrelevant. The Elian case was decided correctly by the courts and his removal from the custody of his Miami relatives was done in a manner that protected the lives of federal agents while not seriously endangering those who were threatening violent resistance to a lawful and just court order.

You don't like Holder on gun rights, fair enough, but keep this honest. Ditto Waco, though that case is more complicated.
11.20.2008 10:56pm
LTEC (mail) (www):
Regarding Waco, I am to understand that the mass suicide/murder only happened because of a previous incident where the FBI (or ATF) was too confrontational?

This same "explanation" crops up quite often in different times and places and contexts, and I'm not buying it.
11.20.2008 11:04pm
Guesty McGuesterston (mail):
"-a statistic is true only if one counts 18-year-old gangsters who shoot each other as "children."

Seriously Kopel, whatever point you may have had is completely lost by this claim (and I read the Barry Law Review piece. It's even less convincing). So you don't care when 18 year olds die. This is where you draw the line. Things are great. The gangbangers are 18, people. Move along, nothing to see here. Guns are off the f-ing charts that's how cool they are.
11.20.2008 11:07pm
PQuincy1:
I used to really enjoy this blog as a location for thoughtful, incisive, and carefully reasoned libertarian and conservative views...views that often made me think twice, though my political inclinations lean the other way.

Now, coming back for some serious reading after getting bored by progressive triumphalism in some blogs and media obsession with cabinet tea leaves, I find -- to my great regret -- that the National Review has apparently colonized the Volokhs. The post above is full of inflammatory language ("gunpoint kidnapping" to describe a [quite possibly improper] law enforcement action], throwaway insults (dismissing youthful firearms victims as 'gangsters', as if you had to be a gang member to be shot), and bizarre scenarios (giving your not-quite-21 year old an heirloom weapon and going to jail).

I'm quite open to serious arguments both about prudent firearms policy, and about the right way to intepret the 2A -- but this post contributed nothing to either. Sorry, much more of this, and other interested but non-kool-aid-drinking readers are simply not going to come back.
11.20.2008 11:13pm
David Warner:
"(and I realize he opened the door for them to pursue the subject)"

The Jukebox has gained self-awareness. Behold: the argument against interest. There will truly be no stopping him now. If a picture's only worth a thousand words, it has no chance against the newly empowered JBGgernaut.
11.20.2008 11:22pm
David Warner:
The only hope is the JBG's evil twin.
11.20.2008 11:25pm
Joe Kowalski (mail):
Sorry for the threadjack, but tangentially related:

Mukasey Collapsed while speaking at the Federalist Society dinner this evening.
11.20.2008 11:42pm
Gaius Obvious (mail):

Also, as far as gun rights, this is an awkward moment, politically. A bunch of bad things have happened, all in the last few weeks.
Far worse has happened with knife crime in a more recent period. Perhaps we need a greater emphasis on bans and registration of knives to keep knives out of the hands of children? The BATFEK perhaps?

Like this:
More than a week after a student’s throat was slashed at Montrose High School, the 14-year-old boy suspected of the act made his first court appearance, via speakerphone, Wednesday and was ordered by a judge to remain in a youth detention facility without bond.
And this:
A grand jury has indicted a Long Island teenager on a charge of second-degree murder as a hate crime in the stabbing death of an Ecuadoran immigrant this month, according to the indictment, unsealed Thursday in Suffolk County District Court.
And this:
A 17-year-old was stabbed to death early Saturday after a fight with another teen outside a downtown cafe.
And this:

A judge will decide the fate of an Oakdale teenager accused of stabbing her newborn daughter to death.
11.20.2008 11:47pm
Anon #319:
Did anyone read anything but the last paragraph?

Holder and Reno may have been able to find better ways to deal with Elian, but that wasn't the only point DK made. (And while he used robust adjectives and verbs, I think his point was to counterpoint a willingness to use firearms and violence to further government but then to deny firearms to people to use for their own legitmate purposes.)

Their position taken in Heller was about as far out as you could get. That should be the most concerning.
11.20.2008 11:53pm
Oren:
Just so I understand, when the CA11 decides that Elian be returned to his father, the DOJ should refuse to give effect to that ruling but, conversely, when the SCOTUS upholds a personal RKBA in Heller, the DOJ should give that full effect. Is that the system?
11.21.2008 12:05am
Oren:
319, the disconnect with Elian is that DK somehow imagines effecting the order of a court of competent jurisdiction to be somehow morally equivalent to kidnapping.

Moreover, if he truly believes that returning Elian was wrong, he should direct his vitriol towards the CA11, not the DOJ charged with enforcing the orders. Unless he thinks that the DOJ had some authority to refuse to carry out that order, in which case, I see no reason that Holder cannot use that same authority to refuse to carry out Heller.

Of course, I think that's absurd, law enforcement is bound to effect court orders whether they like them or not. That is a major component of a basic system of law and order which is either lost on DK (not likely) or he's willing to throw under a bus to make a partisan rhetorical point (perhaps). I'm open to other explanations as well.
11.21.2008 12:18am
subpatre (mail):
By the same 'logic' DOJ personnel --in black uniforms with jackboots, machine guns, and scuttle helmets-- need to storm DC Council and force them to rescind their unconstitutional attempts at violating residents' civil rights. That's the system, right Oren?
11.21.2008 12:22am
Ricardo (mail):
Did anyone read anything but the last paragraph?

Holder and Reno may have been able to find better ways to deal with Elian, but that wasn't the only point DK made. (And while he used robust adjectives and verbs, I think his point was to counterpoint a willingness to use firearms and violence to further government but then to deny firearms to people to use for their own legitmate purposes.)


Huh? People focused on the last paragraph because it's the kind of thing you would expect to see on a website that caters towards to fringe crackpots, not on a website that gets so many visitors because of its insightful legal analysis.

The defining characteristic of government is a monopoly on the use of force except for immediate self-defense. David Kopel, whose bio says he is a former Assistant Attorney General for the State of Colorado, surely knows this. Why would he write something so devoid of legal analysis?
11.21.2008 12:24am
jps:
Can anyone here honestly say being on the wrong side of a relatively close Supreme Court case disqualifies someone from being AG? Then everytime the US lost a Supreme Court, the Attorney General should resign?
11.21.2008 12:30am
Oren:

By the same 'logic' DOJ personnel --in black uniforms with jackboots, machine guns, and scuttle helmets-- need to storm DC Council and force them to rescind their unconstitutional attempts at violating residents' civil rights. That's the system, right Oren?

No, the district court should find those laws to be unconstitutional and issue an injunction against their continued enforcement.

In the almost unimaginable event that DC LEOs continue to arrest the citizens for violations of laws that have already been struck down, then we can discuss sending in the Federal Marshals to effect the court's orders.
11.21.2008 12:37am
Oren:
The defining characteristic of government is a monopoly on the use of force except for immediate self-defense. David Kopel, whose bio says he is a former Assistant Attorney General for the State of Colorado, surely knows this. Why would he write something so devoid of legal analysis?
This is my question -- does he really think the DOJ had any authority to ignore the binding ruling of the CA11 (SCOTUS cert denied) ordering the return of Elian to his father?

I am confident the answer is no, which makes the post even more inexplicable.
11.21.2008 12:41am
therut (mail):
It is not just him being on the wrong side of the case (although that is bad enough). It is his support of oppressive gun control. His idea that gun control helps to reduce crime. His disregard for the innocent to be able to defend themselves aganist violent attack. And I believe he knows better. He just wants to win a fight. He has a disrespect for the average firearm owner. That is my problem with him. He cares little for my LIFE and LIMB. Someone with those attitudes I do not trust to be the cheif law enforcer in the USA. I do not trust him to protect my rights aganist an over reaching government. Just as a minority would not trust a racist to protect their rights, I do not trust a anti-2nd amendment lawyer or politician to protect mine.
11.21.2008 12:46am
Guest12345:
Ricardo,
Huh? People focused on the last paragraph because it's the kind of thing you would expect to see on a website that caters towards to fringe crackpots, not on a website that gets so many visitors because of its insightful legal analysis.

The defining characteristic of government is a monopoly on the use of force except for immediate self-defense. David Kopel, whose bio says he is a former Assistant Attorney General for the State of Colorado, surely knows this. Why would he write something so devoid of legal analysis?


So why don't you give us some legal analysis. Instead of the personal attacks. Seriously cough up. Contribute. Be productive. This "oh I'm so disappointed" tactic is worthless. It might work if you were his mother and he was four. But since you're not his mother and he's not four, maybe you could, like, hold yourself to your own standard? Or maybe you could just go away.
11.21.2008 1:02am
jukeboxgrad (mail):
warner:

The Jukebox has gained self-awareness.


As usual, you're making inscrutable statements that I'm not nearly clever enough to decode. Hopefully there are people here who are picking up your wavelength, but I'm not part of that group.

The only hope is the JBG's evil twin.


Now you're comparing me to Glenn Reynolds? You were being less incivil when you called me a jackass.
11.21.2008 1:06am
jukeboxgrad (mail):
gaius:

Perhaps we need a greater emphasis on bans and registration of knives to keep knives out of the hands of children?


There are lots of reasons why your comparison is asinine, but here's one. You gave this many examples of knives doing damage because they were in the hands of people who were truly "children" (i.e., younger than a teenager): zero. Whereas I cited two recent examples of an 8-year old using a gun to kill people (himself, in one instance). Can you show us the news story about the 8-year old who stabbed himself to death? Extra credit if it happened in the last few weeks.

And here's another reason why your comparison is asinine: knives have many practical and essential uses in an ordinary household. Knives are used on a daily basis for food preparation, and are indispensable for this purpose. On the other hand, most households don't use guns for food preparation (unless you live in a place like Wasilla, I guess). Running a household devoid of knives is fundamentally more challenging than running a household devoid of guns (unless you live in a place like Baghdad, I guess).

By the way, nuclear weapons don't kill people. People do. If you could go to nukes.com and order a small nuclear device that would put you in a better position to defend your family compound in, say, Waco, then shouldn't you be able to do so? After all, it's a kind of "arms," right? And which part of 2A says it's only talking about "arms" that use gunpowder rather than plutonium?

Remember, if suitcase nukes are outlawed, then only outlaws will have suitcase nukes.
11.21.2008 1:06am
jukeboxgrad (mail):
guest:

why don't you give us some legal analysis


That was already done, when Oren asked this question:

does he really think the DOJ had any authority to ignore the binding ruling of the CA11 (SCOTUS cert denied) ordering the return of Elian to his father?


I notice no one has answered.

Seriously cough up. Contribute. Be productive.


Good idea. Maybe you can do your part by answering Oren's question.
11.21.2008 1:12am
MisterBigTop:
"This "oh I'm so disappointed" tactic is worthless. It might work if you were his mother and he was four."

Quite true. Libs are used to that tactic working. Just look at the Supreme Court and Justice Kennedy.
11.21.2008 1:15am
Ricardo (mail):
So why don't you give us some legal analysis. Instead of the personal attacks. Seriously cough up. Contribute. Be productive. This "oh I'm so disappointed" tactic is worthless. It might work if you were his mother and he was four. But since you're not his mother and he's not four, maybe you could, like, hold yourself to your own standard? Or maybe you could just go away.

Michael Masinter in the comments above already gave references to the relevant court cases that examined the question of whether the Elian Gonzales operation was lawful or not. That would presumably be a starting point for someone who is truly interested in the legal issues surrounding the case rather than regurgitating talking points heard on 1990s talk radio. If the court decided incorrectly, it would be important and interesting to hear why. Nobody has offered such an explanation, though.
11.21.2008 1:17am
Seriously?:
"Holder played a key role in the gunpoint, night-time kidnapping of Elian Gonzalez."

I expect more from the VC. What's next, tales of the Obama recession that started on 11/5/08?

Kopel if you want to channel Rush wait till he's gone.
11.21.2008 1:25am
The River Temoc (mail):
The person who swears to defend the Constitution should pay appropriate respect.

Heller had not been decided when Mr. Holder filed the amicus brief, how did expressing his view of the second amendment as a collective right, which he viewed as the law of the land at the time, dis the constitution?

By this logic, no one can ever file a contentious amicus brief in a constitutional law case, because they run the risk of dissing the constitution.

It's also quite revealing that you think arguing a principle of constitutional law EX-ANTE is dissing the constitution. Doesn't that kind of, er, dis the first amendment?
11.21.2008 1:35am
Libertarian1 (mail):
IANAL If a case were argued before SCOTUS involving 2nd Amendment rights would Holder be obligated, based on Heller, to defend the rights articulated by Scalia in his decision?
11.21.2008 1:35am
Gene Hoffman (mail) (www):

Can anyone here honestly say being on the wrong side of a relatively close Supreme Court case disqualifies someone from being AG?

I do worry when the next AG was diametrically on the wrong side of an enumerated right in the bill of rights.

Would you support an Attorney General who wrote an Amicus brief stating that the First Amendment guarantee of free speech didn't apply to the internet because bloggers aren't "the people" or the founders didn't envision the rapid fire capability of webservers?

I would certainly expect that John Yoo's writings would raise some eyebrows should he be in consideration for AG in the future.

-Gene
11.21.2008 1:38am
Kazinski:
I think for once Jukeboxgrad and I are in total agreement, we both want Obama (and Holder) going after everybodies guns. We want the "assault" rifle ban re-authorized, we want the gun show loophole closed, we want a total ban on gun stores within 5 miles of a school or a park, and we want Heller overruled (OK may that is a little too far). And of course we both want the Republicans to take back the house and maybe the senate in 2010. Or maybe that's just my goal, but I want it bad enough for the both of us.

Believe me I'm going to be calling both my Senators (Murray and Cantwell) and telling them to push hard for gun control, I might even cut them a check to get on their radar. I can't wait. While I'm at it I'm going to let them know that 1$ a gallon gas tax isn't high enough, after all I was paying $2 more a gallon just a few months ago, $3 is the minumum gas tax I'll accept, after the carbon tax of course.
11.21.2008 1:42am
Latinist:
Look: gun control really is a hotly contested issue. NRA types tend to act as if a few people who happened to get into positions of power have some weird obsession with taking guns away from people; but in fact, there are a lot of people in this country who are in favor of gun control laws, want more of them, and would be upset if Obama had picked an AG who was against them. That being the case, is it really a shocking betrayal of blah blah blah that he picked an AG who's pretty strongly in favor of gun control?

(Also -- and I'm asking out of pretty deep ignorance here -- were there a lot of plausible AG picks who were bigger on 2nd-Amendment rights? My sense is that the kind of people who end up as AGs tend to skew more in favor of gun control.)
11.21.2008 2:23am
Tony Tutins (mail):
I don't suppose Obama could "reach across the aisle" and pick Fred Thompson as AG?
11.21.2008 2:37am
Tony Tutins (mail):

there are a lot of people in this country who are in favor of gun control laws, want more of them, and would be upset if Obama had picked an AG who was against them. That being the case, is it really a shocking betrayal of blah blah blah that he picked an AG who's pretty strongly in favor of gun control?

No, no more than if McCain picked an AG who had spent his career trying to overturn Roe v. Wade. A lot of people in this country believe abortion is murder, after all, but who would settle for limiting people's reproductive freedoms as much as possible.
11.21.2008 2:41am
Fury:
jukeboxgrad:

So strictly from the perspective of the currents news climate, this is the wrong moment to try to convince the public that it's a good thing that Americans own so many guns. And that we should be afraid of attempts to regulate them.


The issue is not that Americans own so many guns, the issue in two of the articles you cite is negligent discharge. In the first article you cite (father shooting daughter), the father had a previous instance of a negligent discharge. The article also notes that the father indicated "he had both a license and a permit to carry concealed weapons." We see if that in fact is the case.

The same for the second case (boy shot in head while firing machine-gun). The article states "it is legal in Massachusetts for children to fire a weapon if they have permission from a parent or legal guardian and are supervised by a properly certified and licensed instructor."

There are legitimate reasons to own firearms. None of those reasons reduce the necessity to handle firearms safely, which in the case of two of the incidents you report, was not performed. In the other cases, if Americans believe that more regulation would help prevent those sorts of fatalities, it would be interesting to know the content of those proposed regulations.
11.21.2008 3:29am
Gaius Obvious (mail):
And here's another reason why your comparison is asinine: knives have many practical and essential uses in an ordinary household. Knives are used on a daily basis for food preparation, and are indispensable for this purpose. On the other hand, most households don't use guns for food preparation (unless you live in a place like Wasilla, I guess). Running a household devoid of knives is fundamentally more challenging than running a household devoid of guns (unless you live in a place like Baghdad, I guess).
Not so "asinine" after all:
Doctors' kitchen knives ban call

A&E doctors are calling for a ban on long pointed kitchen knives to reduce deaths from stabbing.

A team from West Middlesex University Hospital said violent crime is on the increase - and kitchen knives are used in as many as half of all stabbings.

They argued many assaults are committed impulsively, prompted by alcohol and drugs, and a kitchen knife often makes an all too available weapon.

The research is published in the British Medical Journal.

The researchers said there was no reason for long pointed knives to be publicly available at all.
Once you start frittering away human rights in the name of "the children" you may find it difficult to find a sane place to stop.
11.21.2008 3:36am
JEM:
Tony - can you please define "limiting people's reproductive freedoms as much as possible"? That sounds an awful lot like one of those portmanteau-phrases like "people of color", it carries whatever the speaker wants it to carry.

What are "reproductive freedoms"? The freedom not to have sperm meet egg? I'm inclined to think that only a fairly small fraction of those who oppose availability of abortion would then take that so far as to oppose all useful forms of contraception. Or are you conflating "reproductive freedom" into "sexual freedom"? After all, homosexual sex has nothing to do with reproduction.

I guess it all depends on whose oxen are being gored. Relative to what I regard as my critical personal freedoms I see Mr Holder as less of an evil than Rep Waxman and what I presume the Obama administration's attitude toward my operation of powerful hydrocarbon-fueled vehicles for fun.
11.21.2008 3:44am
Sua Tremendita (mail):
Thanks, Serenity Now.
11.21.2008 3:44am
JEM:
Tony - can you please define "limiting people's reproductive freedoms as much as possible"? That sounds an awful lot like one of those portmanteau-phrases like "people of color", it carries whatever the speaker wants it to carry.

What are "reproductive freedoms"? The freedom not to have sperm meet egg? I'm inclined to think that only a fairly small fraction of those who oppose availability of abortion would then take that so far as to oppose all useful forms of contraception. Or are you conflating "reproductive freedom" into "sexual freedom"? After all, homosexual sex has nothing to do with reproduction.

I guess it all depends on whose oxen are being gored. Relative to what I regard as my critical personal freedoms I see Mr Holder as less of an evil than Rep Waxman and what I presume the Obama administration's attitude toward my operation of powerful hydrocarbon-fueled vehicles for fun.
11.21.2008 3:45am
Hucbald (mail) (www):
The guy's obviously a pathological liar, which is an affliction more common among lawyers than the general public because that's what many lawyers do for a living: Bear false witness - defense attorneys defend the guilty, and prosecutors prosecute the innocent. It's hardly possible to maintain any honor as a human being if your job requires you to lie (Am I the only one who thinks calling lawyer-judges, "Your Honor" is the hight of hypocrisy?).

My favorite lie of his was in the Gonzalez affair, when he said they didn't change their original plan to seize the boy peacefully when they sent the jackbooted thugs in... because they still did it "just before dawn" as they originally planned. What abject scum this man is.

I swear to God, the last seven words virtually every lawyer will hear on judgement day are, "Ignorance of the law is no excuse."
11.21.2008 5:50am
Brett Bellmore:

Can anyone here honestly say being on the wrong side of a relatively close Supreme Court case disqualifies someone from being AG? Then everytime the US lost a Supreme Court, the Attorney General should resign?


Sure: If the losing side had awful enough arguments for ignoring an explicitly guaranteed constitutional right, then not only does being on that side disqualify you to be AG, the fact that it was ONLY 5-4 serves as an indictment of 4 Supreme court Justices. Holder wasn't arguing in the Heller case for 'reasonable regulation', he was arguing for the complete extinction of a civil liberty exercised and treasured by tens of millions. There's a lot of support in this country for some gun control, (Just like there is for some censorship...) but not very much for the ultimate degree of it Holder and the Heller minority wanted.
11.21.2008 6:16am
whit:

Can you show us the news story about the 8-year old who stabbed himself to death?


for pete's sake. more kids die in the bathtub and backyard pools then from guns.

neither a bathtub nor a pool is a right mentioned in the constitution, unlike gun ownership.

now is NOT the time to start spouting about the right to bathtubs and backyard pools. ban bathtubs from the home (kids can take showers) and backyard pools, and you will save more kids' lives than by banning guns. not to mention that it is a lot easier to ban pools (easy to detect) and bathttubs, then it is to ban guns. and no constitutional issues.

do it for the children!
11.21.2008 7:12am
PersonFromPorlock:
Oren:

This is my question -- does he really think the DOJ had any authority to ignore the binding ruling of the CA11 (SCOTUS cert denied) ordering the return of Elian to his father?

If the DOJ's position is that the decision is unconstitutional then it has authority - in fact, responsibility, under the President's oath to "...preserve, protect and defend the Constitution of the United States," to ignore it.

Under the separation of powers, the courts have no power to bind the Executive; the Congress may remove a President for failing to respect a court order but that's a power of Congress.
11.21.2008 7:23am
Santiago Valenzuela (mail):
As far as "Why isn't it a clear case to bring Elian Gonzales back to his father?", I would imagine that sending a child back to a communist hellhole qualifies as child abuse.

The elder Gonzales should have gotten an open invitation to flee to the US and claim custody - here, or anywhere else in the western world, but not cuba or any other dictatorship - and until then, custody would default to his closest relatives.

I don't know the legal principle involved - not like this kind of case comes up often - but that is the argument I would have made. It is the only principled stand for the young Gonzales' life - to live as a free man and not a slave to the state.
11.21.2008 7:36am
rancher (mail):
The Elian Gonzalez case goes to the heart of the foundation of one's value system. Despite all the legal gyrations that supposedly justified this action by Reno and Holder, they were really acting out on their belief system using the masquerade of the courts. The state has no problem whatsoever taking children from their parents through CPS if they fear the children are at risk. Sending children to Castro's hell hole to "be with his father" constitutes at risk and a callous disregard for the child. That Reno and Holder did not see it this way explains who they are and what they will do in the future. I'm sorry so many cannot see this. If you support them, you support their value system.
11.21.2008 7:37am
Michael Edward McNeil (mail) (www):
So when Larry Tribe (hardly a National Review type) criticizes the seizure of Elian Gonzalez as being Constitutionally bogus, he's just being off the wall?

As Tribe wrote in the New York Times:
[P]artisan squabbling over these caricatured views threatens to obscure a vital question: Where did the attorney general derive the legal authority to invade that Miami home in order to seize the child? […]

Under the Constitution, it is axiomatic that the executive branch has no unilateral authority to enter people's homes forcibly to remove innocent individuals without taking the time to seek a warrant or other order from a judge or magistrate (absent the most extraordinary need to act). […]

[N]o judge or neutral magistrate had issued the type of warrant or other authority needed for the executive branch to break into the home to seize the child. The agency had no more right to do so than any parent who has been awarded custody would have a right to break and enter for such a purpose. […]

The Justice Department points out that the agents who stormed the Miami home were armed not only with guns but with a search warrant. But it was not a warrant to seize the child. Elian was not lost, and it is a semantic sleight of hand to compare his forcible removal to the seizure of evidence, which is what a search warrant is for.
11.21.2008 7:59am
Ryan Waxx (mail):
Technically, we have a president-elect who lied about how much respect he had for our 2nd amendment rights. Granted, informed voters would have known he was lying, but I have to think that the lies must have fooled at least SOME people.


Except that in this context, being an "informed voter" by your definition would have to be a person who did NOT rely on the mainstream media, who did their best to "provide context" to the record he had on the subject... by ignoring it when they could or reprinting his campaign press releases on the subject instead.

More bluntly, if you listen to and trust the MSM, you are not an informed voter. Not to mention a fool.
11.21.2008 8:40am
Bizarro Latinist:
Look: abortion really is a hotly contested issue. PP and NARAL types tend to act as if a few people who happened to get into positions of power have some weird obsession with taking abortion away from people; but in fact, there are a lot of people in this country who are in favor of abortion control laws, want more of them, and would be upset if Obama had picked an AG who was against them. That being the case, is it really a shocking betrayal of blah blah blah that he picked an AG who's pretty strongly in favor of abortion control?
11.21.2008 8:56am
Daedalus (mail):
Is this really the "CHANGE" that the people voted for ?????
11.21.2008 8:57am
David Warner:
Sua Tremendita,

"Thanks, Serenity Now."

Ditto. Would that you had more influence, and were around in 1975.
11.21.2008 9:31am
John Steele (mail):

jukeboxgrad (mail):
In 2004, the GOP decided it was a good idea, politically, to relitigate the 60s. So they swiftboated Kerry, and this worked (and I realize he opened the door for them to pursue the subject). In 2008, the GOP decided it was still a good idea, politically, to relitigate the 60s. So they made a big fuss about Bill Ayers, and this didn't work.
...
So strictly from the perspective of the currents news climate, this is the wrong moment to try to convince the public that it's a good thing that Americans own so many guns. And that we should be afraid of attempts to regulate them.
11.20.2008 10:38pm

First you can denigrate the Swift Boat group all you want, the fact remains that these are people who served with kerry in Vietnam and expressed their views of the man and his "accomplishments."

Second, it might be worth noting that while these incidents were going on 50+ million gun owners did NOT misuse their firearms. I fail to understand why you and the facist left think that it is appropriate to punish me for the errors of others.

Two of the cases cited were clearly parental msiconduct and the parents should be punished to the full extent of the law for endangering their children. In all likelyhood those children would have had serious injuries in any event even absent firearsm.

The other two incidents are clearly disfunctional families and the firearm merely provided a tool to execute crimes that would have occured sooner or later anyway. In a democracy we do not supervise people, or at least in the democracy our Founders created. But the left would have that change.
11.21.2008 9:31am
Ryan Waxx (mail):
I think most people have no further patience for relitigating the 60s.


I'm not sure what reaction most people would have to your pet label for *GASP* mentioning when a politican who wants your trust has been involved in some pretty unconsionable acts. I bet you won't be tut-tutting about people wanting to "relitigate the '00s" if a future repuiblican tries to appoint Dick Cheney to a cabinet position.

(cites a bunch of news articles with children shooting themselves)

So strictly from the perspective of the currents news climate, this is the wrong moment to try to convince the public that it's a good thing that Americans own so many guns.


Of course. And I'm sure that certain people in certain newsrooms will ensure that such news climates occur that are favorable to gun control policy positions that they just accidentally happen to support.

I will however grant you that none of the kids in your links bayonetted themselves to death. Proof positive that the assault weapons ban is protecting us even now!
11.21.2008 9:41am
Sarcastro (www):
Someone should start a rumor Obama plans to outlaw the internal combustion engine. Dealers would be packed with people buying up cars before they become illegal!

Auto bailout achieved!
11.21.2008 9:44am
limaxray:

for pete's sake. more kids die in the bathtub and backyard pools then from guns.


And let's not forget the thousands of children that lose their lives every year to those horrible plastic shopping bags. Where is our federal government in banning those?

The argument of 'look at all these stories of where innocent people died because of guns' is incredibly dishonest and nothing more than empty hype. These arguments take the whole thing out of context - both from all of the other ways that significantly more people meet an untimely end, and from the significantly more cases where firearms are used in a productive manner. I personally find that once you put these 'factoids' in context, most people tend to shy away from gun control.
11.21.2008 9:44am
Michael B (mail):
"Is it at least possible that neither Obama nor Holder regard the interpretation of the 2nd Amendment as among the top 300 or so most important issues to be addressed by the DOJ at this moment in our history?"

300? Well, we can all be assurred it won't occur this very moment.

What we positively know is Holder's and Obama's history when it comes to contra 2nd Amend. initiatives. What we positively know, as exampled in the primary post herein, is that that history includes facile assumptions and arrogations, in turn reflective of more exercised and more sophistical assumptions and arrogations by a variety of jurists.

What we can reasonably and responsibly assume is that Obama learned from some of Clinton's mistakes (e.g., gays in the military immediately upon assuming office) and is much more likely to persue a gradual and gradually eroding set of initiatives rather than any immediately divisive set of initiatives.

I.e. I'm not reassurred in the least.
11.21.2008 9:56am
Ryan Waxx (mail):
The argument of 'look at all these stories of where innocent people died because of guns' is incredibly dishonest and nothing more than empty hype.


Hey... no fair linking gun control to Obama with secret code language!
11.21.2008 9:56am
Crust (mail):
Jim Farhad:
It's one thing for Pres. Bush, in a foolish effort to impress African-Americans, to hire mediocre if not totally inadequate persons such as Colin Powell and "Condo" Rice.

Why would President-elect Obama possibly hire a gent such as Mr. Holder? Solidarity within the "community?" Sheer spite? Lack of judgement?
Believe it or not, people sometimes hire an African-American for reasons independent of skin color, you know, because they think the candidate is the best person for the job. Is it really impossible that Bush (and Cheney who ran the transition team) thought that Colin Powell would make a great Defense Secretary and Condi Rice a great NSA advisor (and later SOS)? Ditto with Obama and Holder. Orin Kerr already expressed support for this choice. Would you impute a racial motive to him also?
11.21.2008 10:00am
Crust (mail):
Sarcasto:
Someone should start a rumor Obama plans to outlaw the internal combustion engine.
Orin already tried pretty much that. (Well, not quite, but close.)
11.21.2008 10:06am
Oren:

If the DOJ's position is that the decision [in Heller] is unconstitutional then it has authority - in fact, responsibility, under the President's oath to "...preserve, protect and defend the Constitution of the United States," to ignore it.

Under the separation of powers, the courts have no power to bind the Executive; the Congress may remove a President for failing to respect a court order but that's a power of Congress.

Does the executive have the power to gore your ox as well? If Obama confiscates all your guns, and the courts order the return (see Nagin's asshattery) does he have the authority to ignore them because his view of the constitution is at odds with the courts?

Would anyone really want to live in a constitutional system that places that kind of power with the executive, knowing full well that it will be used both by executives that you agree with and ones that you don't agree with?
11.21.2008 10:07am
PubliusFL:
jps: "Can anyone here honestly say being on the wrong side of a relatively close Supreme Court case disqualifies someone from being AG? Then everytime the US lost a Supreme Court, the Attorney General should resign?"

If he actually argued that the right to keep and bear arms is a collective right, he wasn't just on the wrong side of a relatively close Supreme Court case. All 9 of them accepted that the right is an individual one. The collective right theory has no credibility anymore.
11.21.2008 10:10am
Oren:

That Reno and Holder did not see it this way explains who they are and what they will do in the future. I'm sorry so many cannot see this. If you support them, you support their value system.

What if I support the position that the DOJ is obligated to give effect to the binding rulings of Art III courts without prejudice? That is to say, I believe that Reno and Holder had the duty to return Elian to his father even if they disagreed with it.
11.21.2008 10:15am
wyswyg:
NRA types tend to act as if a few people who happened to get into positions of power have some weird obsession with taking guns away from people; but in fact, there are a lot of people in this country who are in favor of gun control laws, want more of them, and would be upset if Obama had picked an AG who was against them. That being the case, is it really a shocking betrayal of blah blah blah that he picked an AG who's pretty strongly in favor of gun control?





That's funny, funny stuff. Because before the election the Obama supporters here scoffed at the very idea that anyone in the Democratic party was seriously interested in killing off gun rights. We were told that only paranoid right-wing nuts would even suggest such a thing. That in the unlikely event it were ever attempted, Bill Of Rights defenders such as your own good selves would stand side by side with us in opposition.

And now all of a sudden it's "well of course we Dems want to outlaw gun ownership"!
11.21.2008 10:15am
wyswyg:
What if I support the position that the DOJ is obligated to give effect to the binding rulings of Art III courts without prejudice?



I'd tell you that you are nuts. The other branches of government do not exist to act out the courts whims.

And of course, the Clinton administation got the court ruling it sought. It's not like they were ever taking the "gee, we have no interest in this but we have to do what the courts tell us" attitude which you attribute to them.
11.21.2008 10:20am
Oren:
Also, on a rhetorical note (as in, a note pertaining to rhetoric), perhaps I should start referring to everyone that disagrees with my preferred views on substantive due process as being "against the 14A"? I mean, if they don't read that amendment exactly the way I do that must make them enemies of the 14A because they really secretly just want to destroy it. Imagine if no one thought that we could just have a reasonable disagreement about the scope of that protection but had to reflexively label everyone that disagrees with us as implacable tyrants ex ante.

Does that sound productive?
11.21.2008 10:21am
wyswyg:
If Obama confiscates all your guns, and the courts order the return (see Nagin's asshattery) does he have the authority to ignore them because his view of the constitution is at odds with the courts?





You are assuming that we don't have the authority to ignore Obama when he tries to do something unconstitutional.

The persistent failing of the left is that it sees the world as made up of the three branches of government. The people are merely passive clay to be molded as those three branches see fit.

We will have the right to keep and bear arms regardless of what the courts or the executive or the legislature say.
11.21.2008 10:26am
wyswyg:
The phrase "substantive due process" appears nowhere in the 14th amendment, so at a minimum we can tell you that you don't have the foggiest idea what you are talking about.
11.21.2008 10:29am
josh:
Having read David Kopel's post thoroughly, I have concluded that he is going to be PISSED when Eric Holder becomes Attorney General for the United States.
11.21.2008 10:31am
Sarcastro (www):
wyswyg's plan of individual Constitutional interpretation is awesome. Who needs centralized consensus of societal principles anyway?

I know I plan to start disobeying all laws passed pursuant to Wickard starting today!

And also shooting jack-booted thugs for America!
11.21.2008 10:33am
Ryan Waxx (mail):
Don't blame us if they haven't covered the concept of natural rights yet in eighth grade for you, Sarcastro.
11.21.2008 10:43am
Joe Gator (mail):
Jukeboxgrad



There are lots of reasons why your comparison is asinine, but here's one. You gave this many examples of knives doing damage because they were in the hands of people who were truly "children" (i.e., younger than a teenager): zero. Whereas I cited two recent examples of an 8-year old using a gun to kill people (himself, in one instance). Can you show us the news story about the 8-year old who stabbed himself to death? Extra credit if it happened in the last few weeks.


And here's another reason why your comparison is asinine: knives have many practical and essential uses in an ordinary household. Knives are used on a daily basis for food preparation, and are indispensable for this purpose. On the other hand, most households don't use guns for food preparation (unless you live in a place like Wasilla, I guess). Running a household devoid of knives is fundamentally more challenging than running a household devoid of guns (unless you live in a place like Baghdad, I guess).



How about swimming pools? Little kids drown in swimming pools all the time, much more often than they shoot themselves with their parents guns. Should we fill in all the swimming pools with concrete? Erect fences around all lakes, rivers, streams, oceans? After all, its for the children. There isnt even an amendment granting the right to construct a swimming pool in one's backyard.
11.21.2008 10:44am
Sarcastro (www):
Ryan Waxx is right. As a mere babe, the idea of everyone defending their personal interpretation of natural rights worries me. I can't imagine why.
11.21.2008 10:47am
Richard Aubrey (mail):
wy.
I think the dems' point on this issue combines the two responses I predicted plus the usual suffix.
Smart people: "Your guy lied about gun control".
Dems. "So? And what do you want guns for anyway? Too late, chump."
11.21.2008 10:47am
Oren:
wyswyg said:

You are assuming that we don't have the authority to ignore Obama when he tries to do something unconstitutional.

We will have the right to keep and bear arms regardless of what the courts or the executive or the legislature say.

So, supposing that I believe that the Federal government has no power to ban the personal consumption of cocaine (a plausible legal argument, given that an amendment was required to effect prohibition). Does that mean I have the authority to ignore the DEA when they come to break down my door?

Suppose in an alternate reality where Roe v. Wade wasn't decided, but I believed that the 14A protects a right to terminate early-term abortions. Do abortion doctors in this parallel world have the authority to ignore unconstitutional restraints on their rights?

I mean, ultimately, I could decide that any freedom that I hold dear is protected by the constitution and assert sweeping authority to ignore any instrument of the state that dares claim otherwise. Truly then, we are not a nation of laws.
11.21.2008 10:52am
Latinist:
Look: abortion really is a hotly contested issue. PP and NARAL types tend to act as if a few people who happened to get into positions of power have some weird obsession with taking abortion away from people; but in fact, there are a lot of people in this country who are in favor of abortion control laws, want more of them, and would be upset if Obama had picked an AG who was against them. That being the case, is it really a shocking betrayal of blah blah blah that he picked an AG who's pretty strongly in favor of abortion control?

Wow. A Bizarro me. I have truly Arrived (though as a non-Superman fan, I feel sort of unqualified to respond).
Anyway, Bizarro me, you're quite right (perhaps I should say "you is quite wrong," but that sort of thing would get tedious pretty fast, I think). If Bizarro Obama, over there in Bizarro America, won as part of a pro-life party, I don't think he's doing anything dishonest by appointing a pro-life AG. We still have a pro-life president in normal America; I don't know his AGs' views on abortion, but I'm willing to bet that Ashcroft, at least, was pro-life. Yes?
11.21.2008 10:52am
Michael Masinter (mail):
In answer to Mr. McNeil, who quotes Professor Tribe at 7:59, here's Timothy Noah's explanation from Slate (the referenced documents no longer appear on the Miami Herald website).

Slate Magazine
chatterbox
How About Reading That Elián Warrant?
Timothy Noah
Posted Tuesday, April 25, 2000, at 1:35 PM ET


Unlike many opinions flung about during the past few days, Tribe's does not seem to be colored by an ideological animus against the Clinton administration. Moreover, Tribe is a respected legal expert. In this instance, though, Tribe doesn't seem to have done his homework.

The Miami Herald has posted on its Web site a copy of the search warrant in question. (To read it, click here.) Contrary to what Tribe writes, it is "a warrant to seize the child." In what appears to be standard boilerplate, the warrant says that "there is now concealed a certain person or property, namely (describe the person or property)," at which point the following words have been inserted: "the person of Elian Gonzalez, date of birth December 8, 1993, a native and citizen of Cuba." The warrant goes on to say that the U.S. Immigration and Naturalization Service is authorized to search for Elián at the González home. The warrant is signed by U.S. magistrate Robert Dube.

The Herald has also posted various supporting documents submitted to the court when the INS was seeking the warrant. Chatterbox is no legal expert, but the documents seem to suggest that the court didn't act rashly when it granted the warrant. In this memorandum, for example, the INS points out that as of April 12, when the INS revoked Lázaro González's temporary custody of Elián (Elián was, and remains, an illegal alien), Lázaro's refusal to turn over Elián was in contravention of U.S. law. To wit:

Federal Rule of Criminal Procedure 41(b) provides that a warrant "may be issued under this rule to search for and seize any ... (4) person for whose arrest there is probable cause, or who is unlawfully restrained. [Italics Chatterbox's.] Lazaro Gonzalez's retention of the custody of Elian is unlawful because it is contrary to the INS order of April 12, 2000, and without the consent of Juan Miguel Gonzalez.

You can argue that the INS doesn't get to decide what U.S. law is, but you can't argue that a U.S. magistrate doesn't get to decide what U.S. law is. Dube, after reading this memo, approved the warrant.

http://www.slate.com/id/1005186/
11.21.2008 10:53am
Oren:

The phrase "substantive due process" appears nowhere in the 14th amendment, so at a minimum we can tell you that you don't have the foggiest idea what you are talking about.

Ah, I can see I'm wasting my time here. If you seriously think that legal doctrine adopted by dozens of SCOTUS judges over the course of decades is not, at the very minimum, debatable then we are lost. You are like the one guy on the highway that complains that everyone else is driving the wrong way.
11.21.2008 10:56am
Latinist:
Because before the election the Obama supporters here scoffed at the very idea that anyone in the Democratic party was seriously interested in killing off gun rights.

I don't know who said that (I didn't). Now Obama certainly claimed that he, as president, didn't intend to further limit gun rights[1]. And as far as I know, that hasn't changed. What he has done is decide on an AG; that AG, like many people, has opinions on a variety of issues; on the specific issue of gun control, he, like most Democrats (and especially the Democrats most likely to become AG, I suspect), is in favor of it. But neither Holder nor Obama, as far as I know, has actually expressed any intention of taking away anyone's guns in the coming administration. If they pass a new gun-control law, or significantly change existing enforcement practices, then pro-gun rights types will certainly have a legitimate complaint.

[1] Also, to be fair, Obama pretty significantly misrepresented his earlier views on gun control. But, naughty as that is, it doesn't seem very relevant to this discussion.
11.21.2008 11:00am
AntonK (mail):
And here's Eric calling for "reasonable restrictions" on internet speech
11.21.2008 11:00am
Yankev (mail):

It is his support of oppressive gun control. His idea that gun control helps to reduce crime. His disregard for the innocent to be able to defend themselves aganist violent attack. And I believe he knows better.
I don't for a moment think he knows better. I grew up amonmg gun control advocates, and until I was in my late 30s or early 40s, I thought gun control was a terrific idea. My relatives, school teachers, and others did too, and not one of them thought that they were in any way leaving citizens defenseless against crime, tyranny or invasion, or setting the country up for dictatorship.

I later realized that disarming the law abiding does not reduce crime, and leaves defenseless those who cannot count on the police being there when needed. Most gun control advocates that I have met disagree, and think that civilian gun ownership increases the chance of accident, crimes of passion, or the ever popular Hollywood meme of the homeowner's gun being used against her by a criminal. In part they believe these things because of limited experience, and because they do not know (or at least do not realize they know) civilians who are capable of using firearms safely, responsibly and competently, or whose circumstances require them to take steps for their personal safety.

But they do not know they are wrong. I have no reason to think Eric Holder is any different. Perhaps naive, wrong headed, elitist, and willfully ignorant, but not insincere.
11.21.2008 11:08am
Latinist:
I'd also like to reiterate my earlier question: is there some plausible AG candidate who gun-rights types would have liked more? So far the only suggestion I've seen on this post was Fred Thompson, and I mean, come on.

More generally, is there any AG candidate who would have had any chance of a really welcoming reception by Volokh Conspiracy commenters? I suspect not: my sense is that prosecutors and such tend not to be libertarians (and certainly not civil libertarians), for pretty unsurprising reasons. But I don't have any data or experience to back that up, so people should feel free to correct me.
11.21.2008 11:09am
Enki:
I have never posted here, but I do read this site often, and usually really enjoy the banter and - although I'm no libertarian - the well thought-out libertarian explication.

what doesn't fit, however, is the rabid and unreasonable arguments about the 2nd amendment. it's almost as if, to those here, the 2nd is the ONLY part of the constitution. while I understand and appreciate those who wish to protect their right to keep and bear arms, a view which I share, by the way, I am a little flummoxed by the bold statements of such an apparently learned crowd. According to many here, the "individual right" guaranteed by the 2nd amendment is "obvious" and - shockingly - time honored.

this couldn't be further from the truth. the 2nd was seen as protecting a collective right tied to membership in militias for nearly 150 years by just about every court that addressed the question. in fact, before Heller, only two federal courts ever called it an individual right - both within the last 4 years (5th circuit in Emerson, DC circuit in Parker - which became Heller when it went up to the SCOTUS).

disagreeing with Holder on this issue is one thing. Calling it so obviously wrong, however, is completely disingenuous. His view was THE view for the majority of our country's judicial history (originalists beware!). it was only recently that courts began to take the view that "the people' refers to individuals rather than a collective body. WHY? perhaps because without that view, the 2nd amendment is effectively moot. that's because "the people" are now incapable of physically fighting back government tyrrany (A La Blackstone), and because militias are (outside of Kansas) a thing of the past.

I do not doubt the wisdom of Heller, and who knows, maybe Holder sees it too. then again, maybe Holder sees what I see - that Heller was not a "confirmation" of some long held right, but a dramatic reversal of the historical view of the second amendment.

doesn't anybody wonder why most state constitutions explicitly grant an individual right to keep and bear arms? perhaps that is the result of two (well founded) understandings; that firearm regulation is largely a matter of STATE law, and that the 2nd Amendment, as written, does NOT explicitly grant such an individual right.
11.21.2008 11:10am
Oren:

I'd tell you that you are nuts. The other branches of government do not exist to act out the courts whims.

Of course not, they exist to fulfill the will of the voters. There are, however, limits on what actions they can take in furtherance of those goals -- limits that are decided by courts pursuant to their power under Art III to decide cases and controversies arising under the Constitution of these United States.


And of course, the Clinton administation got the court ruling it sought. It's not like they were ever taking the "gee, we have no interest in this but we have to do what the courts tell us" attitude which you attribute to them.

I never meant to attribute that attitude towards them at all. I just meant to say that the ruling of an Art III court of competent jurisdiction to be absolutely binding on them, irrespective of their attitude towards that ruling.
11.21.2008 11:11am
Oren:
I didn't want to get into it, but Yankev is right. Gun control is a stupid idea, but its not so stupid that reasonable people cannot believe it in earnest.
11.21.2008 11:13am
wyswyg:

Suppose in an alternate reality where Roe v. Wade wasn't decided, but I believed that the 14A protects a right to terminate early-term abortions.



There is no 14th amendment right to an abortion.

There is a 2nd amendment right to keep and bear arms. It's written there in plain English in black and white.

No, you do not have any justification to say that the words "due process" in the 14th translate to "there is a right to abortion and gay marriage".

Yes, it is insane to pretend that the words "the right of the people to keep and bear arms shall not be infringed" mean anything but what they say.

Why do totalitarianism lovers like you feel the need to call yourselves libertarians? Your use of language is straight out of 1984.



legal doctrine adopted by dozens of SCOTUS judges over the course of decades


I'm not even slightly interested in "legal doctrine adopted by dozens of SCOTUS judges over the course of decades". I care about the law, which is something which the courts spend most of their time undermining.

A person who keeps insisting that we all bow down before the preposterous proclamations of a handful of bureaucrats as they say things which quite clearly are at odds with the Constitution is a person who is no friend of liberty.
11.21.2008 11:14am
Oren:
wyswyg says "There is no right to abortion".
Holder says "There is no right to KBA".

You don't see the perfect symmetry of the situation, do you?
11.21.2008 11:22am
Oren:
Also, it's not necessary for my hypo for the 14A, as interpreted objectively to protect an abortion. All that's needed is that the abortion doctor thinks that it does.
11.21.2008 11:23am
10ksnooker (mail):
The FBI was confident about the danger to David Koresh that they brought the local TV station camera crew and reporters to film the gun bust. The fix was in and the deal was to prove on TV that more gun laws were needed. Clinton had a plan, and now the same Obama minions are going to be in charge of it again.

Like today, we need more gun laws -- Anyone know why? It seems that other than the drug dealers fighting over territory in the inner cities and the drug wars on the border, the rest of the country seems to not fixing. Gun show loophole, just proves you haven't been to a gun show in the last 10 years.

Riddle me this, why can you define socialism as pushed by the Democrats thusly -- Raise taxes, fund socialism and gun control. anyone want to take shot, read 'Heller' for clues.

CCW issuance was supposed to do what to America? Anyone remember the leftists clichés?
11.21.2008 11:24am
wyswyg:
Gun control is a stupid idea, but its not so stupid that reasonable people cannot believe it in earnest.




It is a stupid idea which is also blatantly unconstitutional, you hater of liberty.

How intellectually dishonest do you have to be in order to conjure up all sorts of "rights" which are not in the constitution based on a two word phrase, while at the same time stubbornly refusing to admit the unmistakable reality of the 2nd amendment?

Let's call a spade a spade here. If you wanted to believe that there is a "right" in the Constitution to kill all the memebers of a certain ethnic group, you could justify that to yourself also. Because you start with your desired outcome and work from there. The actual Constitution is merely a piece of origami paper for you to fold into whatever takes your fancy, and words mean whatever you find it convenient for them to mean at any instant.
11.21.2008 11:24am
KM2 (mail):

Guesty McGuesterston:
"So you don't care when 18 year olds die. This is where you draw the line. Things are great."



Only if you assume that he only cares about the deaths of children. I haven't seen evidence to support that position. What he is pointing out is the mendacity of Holder and others who distort and misrepresent simple facts to support their positions. To get the 12-13/day number one has to cling to 1993, the year in which gun-related deaths reached their all time peak about (30% higher than today), and define children as anyone under 21, a fiction that would classify a large percentage of our armed forces as children.


Jim Farhad:
"It's one thing for Pres. Bush, in a foolish effort to impress African-Americans, to hire mediocre if not totally inadequate persons such as Colin Powell and "Condo" Rice."



So a decorated 4-star general who earned an MBA, served as a White House Fellow and later as National Security Adviser and Chairman of the Joint Chiefs of Staff is a priori "mediocre, if not totally inadequate" to be selected as Secretary of State, as is am acknowledged expert in Soviet and Eastern European affairs with a PhD in political science, who served as Provost of one of the top universities in the country, as Soviet affairs expert on the National Security Council, and later as National Security Adviser? Damn, but you've got really high standards. Is there anyone living who could meet those standards, particularly anyone being considered by the President Elect?
11.21.2008 11:26am
Oren:

It is a stupid idea which is also blatantly unconstitutional, you hater of liberty.

How intellectually dishonest do you have to be in order to conjure up all sorts of "rights" which are not in the constitution based on a two word phrase, while at the same time stubbornly refusing to admit the unmistakable reality of the 2nd amendment?

Read my blog posts, I have always supported the 2A protections for an individual RKBA.
11.21.2008 11:28am
Oren:

Because you start with your desired outcome and work from there. The actual Constitution is merely a piece of origami paper for you to fold into whatever takes your fancy, and words mean whatever you find it convenient for them to mean at any instant.

Of course. That's why we have instituted a system of government among men to better protect our liberty -- because our subjective interpretations are often biased.

Now, you are the one that says I can take my origami constitution, fold it up and use it as a shield to start shooting FBI agents when they enforce the actual constitution (at least insofar as they act within its bounds).

I think you've made my case.
11.21.2008 11:30am
wyswyg:

it's not necessary for my hypo for the 14A, as interpreted objectively to protect an abortion. All that's needed is that the abortion doctor thinks that it does.



No, you niwit, it is needed for the 14th amendment to actually mention abortion, and to give some clue that laws are not to be passed restricting it. As you clearly have NOT noticed, the 14th amendment does neither one of these things.

Failing those conditions, your doctor is on equally good grounds in robbing banks.


Why do you persist in this fiction that words have no meaning? Who taught you this nonsense?
11.21.2008 11:31am
Sarcastro (www):
It's clear to me that my original idea of everyone personally interpreting the Constitution is dead wrong.

Only wyswyg really has the intelligence and cold objective reason to know what the Constitution means.

Citizens can feel free to disobey unconstitutional government action, so long as they check with wyswyg first. He'll be like some sort of awesome Supreme Judicial Guy.

How has this country survived for so long without him?
11.21.2008 11:31am
Oren:
(Side note, can someone point to where I misled wyswyg into thinking I support gun control and disagree with Heller. I've searched this thread and I can't find a single statement that even begins to give that impression. Funny being called a hater of liberty over an issue where I actually agree with him).
11.21.2008 11:32am
KM2 (mail):

Guesty McGuesterston:
"So you don't care when 18 year olds die. This is where you draw the line. Things are great."

Only if you assume that he only cares about the deaths of children. I haven't seen evidence to support that position. What he is pointing out is the mendacity of Holder and others who distort and misrepresent simple facts to support their positions. To get the 12-13/day number one has to cling to 1993, the year in which gun-related deaths reached their all time peak about (30% higher than today), and define children as anyone under 21, a fiction that would classify a large percentage of our armed forces as children.


Jim Farhad:
"It's one thing for Pres. Bush, in a foolish effort to impress African-Americans, to hire mediocre if not totally inadequate persons such as Colin Powell and "Condo" Rice."

So a decorated 4-star general who earned an MBA, served as a White House Fellow and later as National Security Adviser and Chairman of the Joint Chiefs of Staff is a priori "mediocre, if not totally inadequate" to be selected as Secretary of State, as is am acknowledged expert in Soviet and Eastern European affairs with a PhD in political science, who served as Provost of one of the top universities in the country, as Soviet affairs expert on the National Security Council, and later as National Security Adviser? Damn, but you've got really high standards. Is there anyone living who could meet those standards, particularly anyone being considered by the President Elect? Certainly nobody I've heard mentioned for AG or State.
11.21.2008 11:32am
Oren:

No, you niwit, it is needed for the 14th amendment to actually mention abortion, and to give some clue that laws are not to be passed restricting it. As you clearly have NOT noticed, the 14th amendment does neither one of these things.

Failing those conditions, your doctor is on equally good grounds in robbing banks.

Why do you persist in this fiction that words have no meaning? Who taught you this nonsense?

Of course. That's the entire point. If every citizen can assert for himself whatever rights he can convince himself that the constitution provides, then the words really have no meaning.

Now I'm really confused, because I thought that was my point -- the constitution doesn't mean anything if every individual gets say it means whatever he thinks it means.
11.21.2008 11:36am
jukeboxgrad (mail):
kaz:

I think for once Jukeboxgrad and I are in total agreement, we both want Obama (and Holder) going after everybodies guns


Are you and your little straw man having fun? Maybe you should get a room somewhere. Make it a big one, since it's you and a bunch of little straw men.

Try paying attention to what I actually said. I said that the current news environment makes this a bad moment politically for the GOP to make a big fuss about gun rights. That's a statement about political strategy, not a statement about the merit of gun rights, or about whether or not I "want Obama (and Holder) going after everybodies guns."

If you have a substantive response to what I actually said, you should let us in on the secret and tell us what it is.

And of course we both want the Republicans to take back the house and maybe the senate in 2010.


Keep dreaming. This particular soapbox you decided to jump on will have great appeal in the 22% of the nation's counties that shifted toward the GOP this year. So when you discuss your aspirations regarding "the house" and "the senate," presumably you mean "the house" and "the senate" of Appalachia. Because that's the only part of the country where McCain did better than Bush.

(In that link, click on tab #2. For more detail, see here, and click on "Voting shifts.")

And this particular soapbox will also be a great way for the GOP to signal to the rest of the country that the GOP is still pandering to the same group that just brought it such electoral success. A group that is unduly preoccupied with "god, guns + gays." So I encourage you to keep up the good work.

As latinist suggested, not every voter lives in fear that the ghost of Reno is going to suddenly appear and confiscate their Uzi.
11.21.2008 11:37am
jukeboxgrad (mail):
fury:

The issue is not that Americans own so many guns, the issue in two of the articles you cite is negligent discharge


The two things you want to separate are inextricably connected. A society that owns lots of cars is more likely to have a problem with people getting hurt by cars. Therefore we try to address this problem with various forms of regulation. A society that owns lot of guns (and we do) is more likely to have a problem with incidents of "negligent discharge." Especially to the extent that gun ownership is unregulated. Therefore rational people read the kind of headlines I posted and ponder the possibility that a certain amount of gun regulation might actually be a good thing.
11.21.2008 11:37am
jukeboxgrad (mail):
gaius:

Not so "asinine" after all


I challenged to you present an instance of an 8-year old stabbing himself to death. In the absence of such an example, the comparison you made is indeed asinine.

Instead of dealing with the challenge, you're ducking and trying to change the subject. How predictable.

Once you start frittering away human rights in the name of "the children" you may find it difficult to find a sane place to stop


Is it also part of my "human rights" to arm myself with a suitcase nuke? Another reasonable question that you're ducking. The question is theoretical today, but the time will come when it's no longer theoretical.

What about arming myself with poison gas? After all, I'm willing to promise to use it very carefully.
11.21.2008 11:38am
Sarcastro (www):
Oren it was when you said reasonable people could support gun control. Aid and comfort to such enemies of liberty means wyswyg had to smoke you out, dead or alive.
11.21.2008 11:38am
jukeboxgrad (mail):
whit:

more kids die in the bathtub and backyard pools then from guns


Like knives, and unlike guns, bathtubs are essential to the normal operation of a household. Especially because a tub is the easiest way to wash a kid.

This distinction is not that complicated. Why are you ignoring it?

And backyard pools are indeed pretty dangerous, which is why they are often regulated. "A swimming pool is 14 times more likely than a motor vehicle to be involved in the death of a child age 4 and under." And "in California, drowning is the number one cause of accidental death for children 1-4 years of age." I think most little kids who drown do so in a pool, not a bathtub: "67% of all drowning deaths occur in their own backyard pool, spa or hot tub."

Aside from all that, are you sure your statistical claim is even correct? Because "in 2004, there were 3,308 unintentional drownings in the United States." Meanwhile, "in a single year, 3,012 children and teens were killed by gunfire in the United States, according to the latest national data released in 2002."

So your claim ("more kids die in the bathtub and backyard pools then from guns") appears to be simply wrong. (Unless you think 90% of the people who drown are kids, which seems very unlikely.)

gator:

Little kids drown in swimming pools all the time, much more often than they shoot themselves with their parents guns.


As I have pointed out, it's not clear that your numbers are correct. And as I have pointed out, pools are indeed regulated in many places, and for good reason. Why aren't you campaigning to end those regulations? Why should my town have the right to tell me that my backyard pool requires a fence?
11.21.2008 11:38am
jukeboxgrad (mail):
steele:

you can denigrate the Swift Boat group all you want, the fact remains that these are people who served with kerry in Vietnam and expressed their views of the man and his "accomplishments."


This is the wrong place to relitigate SBVT, but they made statements that were "dishonest and dishonorable." Look into who said that.

A scrupulously documented reference that thoroughly dismantles the SBVT nonsense is here.

By the way, O'Neil is a liar. He told Nixon he was "in Cambodia," and then later wrote "no one could cross the border."

while these incidents were going on 50+ million gun owners did NOT misuse their firearms


Most cars are never involved in an accident, but we still see fit to regulate all of them.

In all likelyhood those children would have had serious injuries in any event even absent firearsm.


An 8-year old shot himself in the head with an Uzi. If he was "absent firearsm," what would have been the cause of his "serious injuries?" Did he have an alternate plan to clobber himself with a baseball bat?

the firearm merely provided a tool to execute crimes that would have occured sooner or later anyway


When the most effective available tool is only a club or a knife, the consequences tend to be somewhat less dire, immediate and irreversible.

In a democracy we do not supervise people


You mean I can legally hand my kid the car keys and tell him to go off on a high-speed joyride? I had no idea. Thanks for letting me know. Then again, you might actually have such a "democracy" in your county. Let me know where it is, so I can steer clear.
11.21.2008 11:38am
jukeboxgrad (mail):
ryan:

I'm not sure what reaction most people would have to your pet label for *GASP* mentioning when a politican who wants your trust has been involved in some pretty unconsionable acts.


If you're "not sure," that can only mean you have no idea what happened on 11/4. Because we did indeed find out "what reaction most people would have" to McCain's attempt to relitigate the '60s via Bill Ayers.

And are you referring to the "unconsionable acts" that Obama was "involved in" when he was roughly 8 years old?

I bet you won't be tut-tutting about people wanting to "relitigate the '00s" if a future repuiblican tries to appoint Dick Cheney to a cabinet position.


Duh. The problem has to do with bringing up something that happened forty years ago. I'll be watching carefully to see what happens "if a future repuiblican tries to appoint Dick Cheney to a cabinet position" in 2048.

I'm sure that certain people in certain newsrooms will ensure that such news climates occur that are favorable to gun control policy positions that they just accidentally happen to support.


OK, I get it. Those incidents didn't really happen. They were manufactured by the ee-vil emm-ess-emm. And it's obvious that only a biased editor would consider those stories fit to print.

I will however grant you that none of the kids in your links bayonetted themselves to death


It's not just that none of the kids I mentioned "bayonetted themselves to death." It's that no one can show an instance anytime, anywhere, of an 8-year old kid stabbing himself to death. Which indicates that the comparison gaius made is asinine.
11.21.2008 11:38am
jukeboxgrad (mail):
km:

a decorated 4-star general who earned an MBA, served as a White House Fellow … acknowledged expert in Soviet and Eastern European affairs with a PhD in political science, who served as Provost of one of the top universities in the country


The people you're describing are obviously pointy-headed elitists. Better to put government in the hands of folks who know how to butcher a moose.
11.21.2008 11:38am
cboldt (mail):
Enki: -- I do not doubt the wisdom of Heller ... I see - that Heller was not a "confirmation" of some long held right, but a dramatic reversal of the historical view of the second amendment. --
.
Schizophrenic. You see what you want to see, and disregard the rest.
11.21.2008 11:39am
Sagar:
Sarcastro:
... I can't imagine why.


may be because your focus is more on trying to be cute &funny than on being logical and intelligent?
11.21.2008 11:39am
Oren:

Oren it was when you said reasonable people could support gun control. Aid and comfort to such enemies of liberty means wyswyg had to smoke you out, dead or alive.

Ah, I got it. He's like Greenwald in that respect -- civility towards those I disagree with is tantamount to apology for their sins. Funny that the far left and the far right should be so similar in that respect.
11.21.2008 11:40am
wyswyg:
That's why we have instituted a system of government among men to better protect our liberty -- because our subjective interpretations are often biased.



Dear God, you are stupid. You are the one defending biased subjective interpretations which clearly have no basis in law. You are the one defending the overthrow of our "system of governemnt" and its replacement with oligarchy. While pretending to defend liberty, no less!


you are the one that says I can take my origami constitution, fold it up and use it as a shield to start shooting FBI agents when they enforce the actual constitution



Your dishonesty is staggering. I never said any such thing.

Unless you think that the "actual constitution" is not the actual constitution. Given your Brave New World mentality, that possibility cannot be discounted.
11.21.2008 11:40am
Ryan Waxx (mail):
It's clear to me that my original idea of everyone personally interpreting the Constitution is dead wrong.

Only wyswyg really has the intelligence and cold objective reason to know what the Constitution means.


Congratulations Sarcastro on your nic change. You are now known as "Strawmano", since very few of your posts actually use sarcasm (don't blame me, blame that fascist Webster for forcing everyone to use his definition) yet nearly all involve some sort of strawman.

Enjoy!
11.21.2008 11:41am
wyswyg:

civility towards those I disagree with is tantamount to apology for their sins.



This statement might make a little sense, if you were not one those people whose sins you were apologizing for.
11.21.2008 11:43am
Seamus (mail):
wyswyg says "There is no right to abortion".
Holder says "There is no right to KBA".

You don't see the perfect symmetry of the situation, do you?


You mean the way the right to keep and bear arms is explicitly set forth in the Second Amendment, and the right to obtain an abortion is explicitly set forth--nowhere? Yep. Perfectly symmetrical.
11.21.2008 11:45am
Sagar:
Oren:
...Would anyone really want to live in a constitutional system that places that kind of power with the executive, knowing full well that it will be used both by executives that you agree with and ones that you don't agree with?


the obvious answer is a big NO. However, can't we apply the same principle to the Judiciary as well? At least we can remove the pols from executive and legislative branches if we don't agree with their performance. What recourse do we have against judges when they are wrong?
11.21.2008 11:47am
Enki:
Cbolt:
Schizophrenic. You see what you want to see, and disregard the rest.


putting aside the glib remark and the misuse of "schizophrenic", i'd be happy to start quoting caselaw if you wish, but that seems a bit... hmm... ivory tower arrogant? at any rate, you may have missed the part about how i support heller and, moreover, am in general agreement with the individual rights view. my only beef is with the tunnel-visioned criticism of Holder...

the "blackstone" view that gun rights are an individual right were patently rejected by our founders and endorsed by the antifederalists - including the pennsylvania minority. the founders were interested in protecting the state's rights to control their militias (leaving some congressional control in Article I), and the 2nd amendment reflects that idea.
of course, the founders also assumed that most americans already had a gun, which is part of the whole individual right interpretation we have today. but that is a RECENT development in the law, not something old and longstanding. there is a reason why 11 out of the 13 states, after the bill of rights was passed, IMMEDIATELY adopted more liberal gun rights in their state constitutions.

but hey.
11.21.2008 11:49am
wyswyg:

A society that owns lot of guns (and we do) is more likely to have a problem with incidents of "negligent discharge." Especially to the extent that gun ownership is unregulated. Therefore rational people read the kind of headlines I posted and ponder the possibility that a certain amount of gun regulation might actually be a good thing.




Your "rational people" don't seem to be very intelligent, as these is no obvious connection between gun regulation and "negligent discharge". Unless of course your gun regulation" is just another way of saying "gun banning", which it is.

Leaving me to wonder once again why you leftists can never tell people your agenda in plain and honest English.
11.21.2008 11:51am
Passerby:
The VC jumped the shark with the Palin posts. Everything is downhill from there.
11.21.2008 11:51am
Crust (mail):
Oren:
He's like Greenwald in that respect -- civility towards those I disagree with is tantamount to apology for their sins.
That was Orin's polemical characterization of Greenwald's position. But as Greenwald puts it:
I haven't argued, and don't believe, that discussions of these matters should be driven by invective rather than reason. That's a transparent and ludicrous strawman Kerr creates in order to depict himself as doing nothing more than defending substance-based discourse and to depict my argument as a demand that commentators dispense with substance in favor of "invective." That's not what I believe or what I do. Passion and substance aren't mutually exclusive.
11.21.2008 11:52am
Paul A'Barge (mail):
Quick. Someone get Orin Kerr some smelling salts. I see a fainting spell coming on.
11.21.2008 11:53am
Ryan Waxx (mail):

If you're "not sure," that can only mean you have no idea what happened on 11/4. Because we did indeed find out "what reaction most people would have" to McCain's attempt to relitigate the '60s via Bill Ayers.


Because your pet theory is the only possible explanation for Obama winning? Are you serious?

And are you referring to the "unconsionable acts" that Obama was "involved in" when he was roughly 8 years old?

Please read your own post before replying, since you were the one who listed them. Thank you.

OK, I get it. Those incidents didn't really happen. They were manufactured by the ee-vil emm-ess-emm. And it's obvious that only a biased editor would consider those stories fit to print.


Please point out where I said that the stories were made up. Oh, that's right - I didn't. News climates are not the same as news stories... and the distinction between the two is obvious to anyone who has an adult's understanding of how some news stories are selected over others in several phases of news gathering (reporter dispatch, reprinting from other papers, weather to trust certain sources, etc). A national news media organization has great power to shape the flow of news, within certain limits.
11.21.2008 11:57am
wyswyg:
"there is a reason why 11 out of the 13 states, after the bill of rights was passed, IMMEDIATELY adopted more liberal gun rights in their state constitutions"

The state constitutions mirrored the language in the Federal constitution in most respects. It's not true to say that they adapted "more liberal gun rights".

As for your argument that "if the states put right-to-bear-arms provisions in their own constitutions, it proves that there was no such Federal right", .... duh.

At the time the the Bill of Rights was written it was understood to apply to the Federal government. Even the First Amendment was not binding on the states. Your failure to understand this point does not inspire confidence in your understanding of these issues.

For the record, I think that "incorpration doctrine" is a crock. But if the SCOTUS insists on going down that road then simple logical consistency requires them to incorporate all of the BOR.

Nothing was more pathetically amusing than watching the left suddenly and belatedly discover an interest in Federalism with Heller. Nobody has been a more eager assassin of federalism than you guys.
11.21.2008 12:03pm
cboldt (mail):
Enki: -- at any rate, you may have missed the part about how i support heller --
.
I saw you say you didn't doubt it's wisdom, and the part where you characterize it as a dramatic reversal from what the founders intended. The two points of view are incongruous; unless you advocate radical departure from the founders in construction and application of the constitution.
.
I disagree with your point of view as to what the founders held regarding the right of the people to keep and near arms, am not amenable to being persuaded to adopt your position, any more than you are willing to adopt mine. I say we part as adversaries on the point, and leave it at that.
11.21.2008 12:05pm
I Am In Your Home (mail):
Sarcastro wins as usual. Anyway...

I think 2A does protect an individual right. But a few things:

1. The language is not black and white, clear, or unambiguous. The phraseology of this Amendment is peculiar (unlike any other Amendments). Does the prefatory clause delimit the ONLY purpose, or merely just describe the primary or most important one? What is a militia? What is well-regulated? What are arms? What is "the people" (LOWER CASE "p")? There is a reason this Amendment has been debated for centuries - there is not a single, obvious construction.

2. For all those textualists and literalists who scream that the 2A obviously 100% protects an "individual right," where is the word "individual" there? (Some grammarians argue that "people" is a collective noun; others say it's merely a pluralization of "person."). Why the prefatory clause? Is the right conditioned on membership (or the possibility of membership if needed) in a (or "the") militia?

Why doesn't the Amendment simply say: "The right of a person to keep and bear arms shall not be infringed"?

It's easy to ignore the complexity of this issue, and say that it's black and white and clear and obvious.
11.21.2008 12:07pm
wyswyg:

the obvious answer is a big NO. However, can't we apply the same principle to the Judiciary as well? At least we can remove the pols from executive and legislative branches if we don't agree with their performance. What recourse do we have against judges when they are wrong?


I predict that this question will be met, as usual, with either no answer or with an evasive and dishonest one which attempts to change the subject.
11.21.2008 12:07pm
Thomass (mail):
A: Devastating summary of the guy
B: I saw a everyday production car with lame looking ground effects and a wind wing on the trunk on the way to work. If you need to explain why ‘assault rifle’ is a meaningless term to someone with an open mind I suggest having a picture of a Toyota in slide 1 labeled ‘car’ and a car like the one I mention as slide 2 ‘assault car’. ;)

Cheers
11.21.2008 12:08pm
Crust (mail):
On the lighter side, here's David Brooks on the academic background of Obama's picks so far:
If a foreign enemy attacks the United States during the Harvard-Yale game any time over the next four years, we’re screwed.
11.21.2008 12:08pm
jukeboxgrad (mail):
wys:

these is no obvious connection between gun regulation and "negligent discharge"


Really? Do you also claim there's no connection between traffic regulations and motor vehicle accident rates? Because the logic is comparable.
11.21.2008 12:09pm
jukeboxgrad (mail):
ryan:

Because your pet theory is the only possible explanation for Obama winning?


I sincerely hope that the rest of the GOP follows your lead and learns nothing from what just happened.

Please read your own post before replying, since you were the one who listed them.


You're being completely incoherent. What "them?" You made reference to "some pretty unconsionable acts." It seems that you were talking about things that happened when Obama was 8. If that's not what you were talking about, then what were you talking about?

how some news stories are selected over others


You're implying that the stories I cited should not have been "selected" (i.e., printed). Really? Why? You're also implying that some other important story was suppressed. Really? Tell us about it. Surely someone outside the ee-vil emm-ess-emm (like Rush or Sean) would be able to tell you what it is.
11.21.2008 12:10pm
jukeboxgrad (mail):
wys:

Nothing was more pathetically amusing than watching the left suddenly and belatedly discover an interest in Federalism with Heller. Nobody has been a more eager assassin of federalism than you guys.


I guess you must think that the GOP behavior re Schiavo was something other than an "assassin of federalism."
11.21.2008 12:10pm
Enki:
cbolt
not sure if we're so different. I am no originalist, and if that wasn't clear before, let me make that clear now. to me, Heller represents a very well timed departure from the originalist view that the second amendment, as originally envisioned by the founders, is rather moot and must be re-interpreted in light of modern circumstances.

to wit: the founders saw the value in citizen/state militias, as a check against tyranny. that those militias would be completely useless without those citizens' ability to keep and bear arms is patently obvious.

today, well that situation is a relic of the past, and relegated to history channel documentaries on musket-weilding revolutionaries. the most reasonable use of firearms today, therefore, would be for self defense - the precise reason advanced by Heller. the Court agreed, and while the opinion advanced in that case is a baldfaced attempt to tie that notion to the original view of the founders, that effort is, in my book, unnecessary. the right to keep and bear arms is important but for much different reasons today than it was back in the 18th century. i see nothing wrong with that.
11.21.2008 12:12pm
Fury:
jukeboxgrad:

The two things you want to separate are inextricably connected. A society that owns lots of cars is more likely to have a problem with people getting hurt by cars. Therefore we try to address this problem with various forms of regulation. A society that owns lot of guns (and we do) is more likely to have a problem with incidents of "negligent discharge." Especially to the extent that gun ownership is unregulated. Therefore rational people read the kind of headlines I posted and ponder the possibility that a certain amount of gun regulation might actually be a good thing.

Understood. But in the two cases of negligent discharge you cited in your post, the articles make mention of there already being firearms regulation.

And as noted in my initial post, in the other cases you cite, if Americans believe that more or initial regulation would help to reduce such fatalities, it would be interesting to know the content of the proposed regulations.
11.21.2008 12:16pm
B Dubya (mail):
Sometime after 20 January 09, the Democrat Exectutive branch of the United States government, through one of the armed bureaus within the Justice Department, will kill by gunfire, explosives or fire, citizens of the United States who will be engaged in practices or activities which, while constitutionally protected, will be prohibited by this government executive. I predict that this will happen at least once before the 2010 mid-term elections. There may be more than one such occurrence, but this Executive will employ the threat of deadly force against citizens who are not classified as felons from day one of the administration. It is a certainty, made more so by the continued accumulation of Clinton staffers into the cabinet and agencies.
Remember, tolerance for these people only extends to the things they find tolerable. Everything else threatens them and they will kill because of it.
11.21.2008 12:17pm
Tony Tutins (mail):

I know I plan to start disobeying all laws passed pursuant to Wickard starting today!

I'm way ahead of you buddy. I bought some winter wheat seeds from the garden store on Tuesday, (as a "cover crop," shhhh) and I'm planning to plant them tomorrow.

this couldn't be further from the truth. the 2nd was seen as protecting a collective right tied to membership in militias for nearly 150 years by just about every court that addressed the question.

This would be true if enki had put a colon instead of a period after "truth." The idea that the Second Amendment did not protect an individual right to bear arms didn't get off the ground until the mid-1930s, helped along by the oracle-like decision in Miller. The collective rights interpretation did not really get rolling until US v. Tot, 131 F.2d 261, in 1942. So there are some 66 years of error, before the USSC weighed in this year; about the same span of time between Plessy v. Ferguson and Brown v. Board of Education.

you can't argue that a U.S. magistrate doesn't get to decide what U.S. law is.

Is a U.S. magistrate even an Article III judge? I thought they were just gatekeepers for real judges. In any event, any such decision would not be final, because any Federal trial court judge's interpretation of U.S. law is subject to appellate review.
11.21.2008 12:23pm
Sarcastro (www):
1. At least half the time, I manage to be both cute AND intelligent! Like a dolphin!

2. Damn! My name isn't a perfect description of what I do! I'd better change it! And that Crust guy better be crunchy delicious!

3. By exaggerating people's arguments I in no way point out fallacies in their comments! I'm just being mean.
11.21.2008 12:26pm
Sarcastro (www):
And I like JBG's collection of anecdotes with no statistical causal link. Anecdotes make good science and even better policy!
11.21.2008 12:27pm
wyswyg:

I guess you must think that the GOP behavior re Schiavo was something other than an "assassin of federalism."



I guess that you, one of the more imbecilic commenters to be found anywhere on the known interwebs, are unaware that the so-called "GOP behavior re Schiavo" was bi-partisan. Even your sainted One supported what you call "the GOP behavior".

Apart from that minor problem, there is the more major problem that there is nothing new about the Feds getting involved in issues involving people being put to death. Why, I'd think that even you were aware that death row convicts were allowed to petition their cases all the way to SCOTUS, and that the Feds have been known to intervene to re-prosecute murder cases which failed at the state level. So it's just typical dishonesty on your part to suggest that the Schaivo matter represented some unprecented action against federalism.

None of which is a defense of anti-federalist actions on my part. I'm merely pointing out the absurdity of people such as you pretending to the guardians of its sacred flame. You adore anti-federalist activity as a general rule, as long as it's the service of your cause.
11.21.2008 12:31pm
Sarcastro (www):

one of the more imbecilic commenters to be found anywhere on the known interwebs

Okay, that has a decent amount of win in it.
11.21.2008 12:33pm
Joe Gator (mail):
Jukebox,

I never said I was against ALL FORMS of regulations. The guy your boy Obama is tabbing for AG argues that there is no individual right to own a gun, big difference. Rational regulations are okay, although I would love to see their content.
11.21.2008 12:33pm
wyswyg:

Damn! My name isn't a perfect description of what I do! I'd better change it!



How about you learn a new trick? This one was amusing for about five seconds several months ago.
11.21.2008 12:34pm
cboldt (mail):
Enki: -- not sure if we're so different --
.
We are polar opposites on this issue.
11.21.2008 12:38pm
wyswyg:
Really? Do you also claim there's no connection between traffic regulations and motor vehicle accident rates?

In order for you to claim some connection between gun regulation and accidental discharges, you would have to cite some studies which show that, e.g state A which has "greater regulation" also has a lower incidence of this problem than state B, which has less regulation.

Since you did not that do, and cannot do that, you are simply engaging in your customary activity of emoting furiously while pretending to be engaged in rational debate.
11.21.2008 12:39pm
wyswyg:

the founders saw the value in citizen/state militias, as a check against tyranny. that those militias would be completely useless without those citizens' ability to keep and bear arms is patently obvious.

today, well that situation is a relic of the past



I disagree with both your proposition and with your conclusion. That was not the sole purpose of the right to bear arms. And that purpose is as valid today as it ever was.
11.21.2008 12:46pm
cboldt (mail):
-- In order for you to claim some connection between gun regulation and accidental discharges --
.
I read the links provided by jokeboxgrad, and noticed that at least one of the deadly discharges was by a military-trained, licensed CCW holder. QED, even trained and regulated people can't be trusted with firearms outside of a combat zone.
11.21.2008 12:46pm
Enki:
CBolt
fair enough. i was under the impression that you supported an individual right to bear arms, which I do as well. Perhaps we are different in how we come to that conclusion, which is fine, and I do not decry your point of view (on originalism or whatever one wants to call it) at all even if I dont' agree with it. but results are, well awfully real-world, and as much as I enjoy the intellectual banter, we do not live in the case law, we live in the real world.
11.21.2008 12:47pm
Sarcastro (www):
[wyswyg I find arguing sincerely on the internet to be tiresome most of the time. This spices it up for me, and others seem to like it some as well. If I may say, it is better than adding petty insults to all who disagree with you.

If you find my usual persona tiresome, on to un-sarcastic substance then. My understanding of your core thesis in this thread is "textualism is all we need. This clearly means no substantive due process, and a strong Second Amendment. Anyone who thinks otherwise hates liberty! "

First, it's pretty bold to claim you know your way is so very right anyone who disagrees is some kind of tyrant.

Second, pure Constitutional textualism itself is pretty unworkable. Think of First Amendment jurisprudence without any reasonable restrictions!

Thirdly, it's not like 2A text is an exceptional model of clarity compared to the other Amendments. Why do you think the Proffs here keep delving into it's history? What counts as "arms?" For that matter, what's up with that odd preamble?]
11.21.2008 12:49pm
Bitter Voter:
If I recall correctly, Heller was not a "close case" on the legal theory pushed by Holder and the other pro-D.C. Attorneys General in their amicus brief in support of the ban, i.e., the so-called "collective rights" theory of the Second Amendment. Not a single justice embraced the notion that the Second Amendment protects a collective right, rather than an individual right.

The split was on the nature and scope of the individual right to keep and bear arms and whether the ban was inconsistent with that right.

And yes, an ardent supporter of such a thoroughly discredited theory should be disqualified from serving as Attorney General of the United States. This is particularly so, given that one of the primary reasons the right in question was recognized in and protected by the constitution was to protect against the potential dangers of a tyrannical federal government.

A federal government attorney inclined to undermine one of the fundamental constitutional checks on abusive federal power, on such a flimsy legal basis, should not be put in charge of a federal agency that is both directly responsible for enforcing individual civil rights and that, more importantly, has the capacity to be one of the greatest abusers of federal power.
11.21.2008 12:52pm
cboldt (mail):
-- i was under the impression that you supported an individual right to bear arms, which I do as well. --
.
-- ... the 2nd Amendment, as written, does NOT explicitly grant such an individual right. --
.
I have to admit, when dealing with a person who holds inconsistent positions, that there will agreement on some points. I do support an individual right to bear arms, and I don't support bastardizing the Constitution, which you apparently do in order to get the outcome you prefer.
11.21.2008 12:59pm
GainesvilleGuest (mail):
Mr. Kopel,

Great post. I know there are many ways the AG will affect firearms freedom in this country, many through non-public means that most of us without significant government experience are not aware of. If you are so inclined, a post on the potential harm Eric Holder could do to gun rights would be very informative
11.21.2008 1:05pm
Railroad Gin:
If only Elian's relatives in Miami had joined Al-Qaeda, then some of the posters here might see the governmental abuse issues raised by that raid. The whole point of it was to short-circuit perfectly legitimate issues that were being litigated. If there's one thing everyone of all political stripes on this site should agree with its that all legal remedies should be exhausted before calling out the Gestapo.

The argument that plaintiffs suing over Elian (or Waco) lost is a non-starter. By that standard, Japanese internment camps didn't violate anyone's rights. There was also a question as to whether Elian's father actually had lawful custody and if he did whether he truly wanted Elian to return to Cuba. There was a lot of forum shopping and other gamesmanship by Reno's DOJ. Its misleading to say that CA11 said Reno was right. All they said was that she had discretion, not that she was bound to do what she did or that she was correct in her discretion. If the justification is Reno's discretion, then its fair game to criticize her exercise of discretion and that of her cronies such as Holder.

The same is true of the Terry Schiavo matter. I don't see how that's germane to Holder. But it amazes me how many people on a site like this just buy into the leftist spin and won't at least acknowledge that these issues were more complicated than "a boy should be with his father" and other mindless mantras.
11.21.2008 1:09pm
I Am In Your Home (mail):

Thirdly, it's not like 2A text is an exceptional model of clarity compared to the other Amendments.


There you go again, "bastardizing the Constitution"!

The text has only one possible interpretation. Case closed!
11.21.2008 1:11pm
Enki:
cbolt
ahh that was my mistake then, the part you just quoted was, admittedly, poorly phrased by me. or more specifically, poorly emphasized. instead of "NOT explicitly" I should have said "not EXPLICITLY". regardless of how simple some think the 2nd amendment is, it's really a poorly drafted, grammatically unclear statement that doesn't really "explicitly" do anything. as a result, it's subject to interpretation. that is really all I meant. judging by the years and variety of cases that have attempted to do this, there's only one thing that IS clear - that the amendment is unclear.

that Heller sheds some light on that is a good thing. that it did so through this tortured analysis to attempt tie it to some originalist view not-before-adduced by earlier courts seems a bit unnecessary, but hey. the whole "derivate" business is particularly amusing (especially in light of the colloquoy between Scalia and the SG during oral argument, but I digress), but again it doesn't seem necessary to me.

why couldn't the court simply say, hey the 2nd amendment used to mean something when we had militias and needed armed citizens to serve in them. but today we have the national guard and no more state militias, but we have other, just as important, but perhaps not considered by the founders, needs for people to lawfully be able to have guns. so the 2nd protects these rights too, even if those weren't necessarily contemplated by the founders. want a gun to protect self? you have that right, subject to reasonable regulation (hehe).

i see nothing wrong with that. i see no reason to torture ourselves into trying to squeeze reasonable law into some sage-like view of the past, when in reality we are living today.
11.21.2008 1:13pm
Enki:
cbolt
ahh that was my mistake then, the part you just quoted was, admittedly, poorly phrased by me. or more specifically, poorly emphasized. instead of "NOT explicitly" I should have said "not EXPLICITLY". regardless of how simple some think the 2nd amendment is, it's really a poorly drafted, grammatically unclear statement that doesn't really "explicitly" do anything. as a result, it's subject to interpretation. that is really all I meant. judging by the years and variety of cases that have attempted to do this, there's only one thing that IS clear - that the amendment is unclear.

that Heller sheds some light on that is a good thing. that it did so through this tortured analysis to attempt tie it to some originalist view not-before-adduced by earlier courts seems a bit unnecessary, but hey. the whole "derivate" business is particularly amusing (especially in light of the colloquoy between Scalia and the SG during oral argument, but I digress), but again it doesn't seem necessary to me.

why couldn't the court simply say, hey the 2nd amendment used to mean something when we had militias and needed armed citizens to serve in them. but today we have the national guard and no more state militias, but we have other, just as important, but perhaps not considered by the founders, needs for people to lawfully be able to have guns. so the 2nd protects these rights too, even if those weren't necessarily contemplated by the founders. want a gun to protect self? you have that right, subject to reasonable regulation (hehe).

i see nothing wrong with that. i see no reason to torture ourselves into trying to squeeze reasonable law into some sage-like view of the past, when in reality we are living today.
11.21.2008 1:13pm
Enki:
ack, sorry for the double post.
11.21.2008 1:15pm
cboldt (mail):
-- it's subject to interpretation. that is really all I meant. judging by the years and variety of cases that have attempted to do this, there's only one thing that IS clear - that the amendment is unclear. --
.
You and I are polar opposites on the historical meaning and function of the amendment, as it pertains to protecting an individual, personal right. The amendment and its history are not unclear, and not all that complicated. Those who promote "it's not clear" tend to obfuscate, mislead, and otherwise engage in intellectual dishonesty to come out in the "no individual right under the founder's view" camp.
.
That the liars have produced volumes of writing is no surprise. The stakes couldn't be much higher, and there is great value to those who deign to rule, to disarming the public.
11.21.2008 1:27pm
Ryan Waxx (mail):
In 2004, the GOP decided it was a good idea, politically, to relitigate the 60s. So they swiftboated Kerry, and this worked (and I realize he opened the door for them to pursue the subject). In 2008, the GOP decided it was still a good idea, politically, to relitigate the 60s. So they made a big fuss about Bill Ayers, and this didn't work.


Later...
You're being completely incoherent. What "them?" You made reference to "some pretty unconsionable acts." It seems that you were talking about things that happened when Obama was 8.


Lets see... exactly one of those three happened when Obama was 8. Do not force me to quote your own posts again. It sets an entire new standard for obsfucation.
11.21.2008 1:28pm
Jack Okie (mail):
Since the rights enumerated in the Bill of Rights are NATURAL RIGHTS, not conferred by any government or state, it seems to me the Second Amendment's prefatory clause attempts to provide context for the specific mention of the right in the Bill of Rights. Since natural rights are universal rights, they apply at all times and places: The hunter-gatherers of pre-history, the Greeks, Romans, Jews in the Warsaw ghetto - all had the right to keep and bear arms. What seems to be lost in the discussion on this thread is that "to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed". So it doesn't matter what the courts, Congress or the Executive say, I do, and in fact must if I am a free man, decide for myself what my rights are. After all, they're MINE. If my interpretation puts me in conflict with the government, then I have to decide what to do about it. At this point, especially after Heller, I would expect any attempt to impose serious gun control to result in a memorable push-back.
11.21.2008 1:31pm
I Am In Your Home (mail):

The amendment and its history are not unclear, and not all that complicated.


Wow. Thanks for this conclusive summary.

I don't know ANY topic in history that is not unclear and not complicated.

By "its history" do you mean "the history I make up in my head"?
11.21.2008 1:49pm
Bitter Voter:
Admittedly, the collective rights theory acquired at least the aura of credibility. But, again, this appears to have been not so much a matter of credible legal analysis as the product of the strong desire of such people that their normative expectations be realized, the effects of comity and stare decisis in the lower federal courts which entrenched the theory, and, especially, because of the failure of the Supreme Court to take up the issue for so many years.

It was only more recently that the collective rights theory was widely debunked by legal scholars.

So, the criticism of Holder is not simply that he was against recognition of an individual right to arms or that he was pushing a legal theory that not a single member of the Supreme Court found credible, but that his animosity (or indifference) to the right, or constitutional limits on federal power generally, was so great that he would not even give the theory an honest and objective fresh look when it came time to do so.
11.21.2008 1:51pm
Ryan Waxx (mail):
I don't know ANY topic in history that is not unclear and not complicated.


Well sure, if you are the type of personality that gives equal time to flat-earthers and roundish-earthers, I can see how it could be complex for you.

But if you do things like... I don't know... RESEARCH the subject, it becomes fairly clear.
11.21.2008 1:53pm
Bitter Voter:
We can debate whether the "collective rights" theory advocated by Holder in his Heller amicus brief was ever a "credible legal theory." The failure of any of the nine justices to take the theory seriously does, however, support those who have argued all along that the co-called collective rights theory was nothing more than a fig leaf to cover up the normative policy conclusion of various federal officials and judges (and many others) that individuals should not have a right to own and possess guns.

Admittedly, the collective rights theory acquired at least the aura of credibility. But, again, this appears to have been not so much a matter of credible legal analysis as the product of the strong desire of such people that their normative expectations be realized, the effects of comity and stare decisis in the lower federal courts which entrenched the theory, and, especially, because of the failure of the Supreme Court to take up the issue for so many years.

It was only more recently that the collective rights theory was widely debunked by legal scholars.

So, the criticism of Holder is not simply that he was against recognition of an individual right to arms or that he was pushing a legal theory that not a single member of the Supreme Court found credible, but that his animosity (or indifference) to the right, or constitutional limits on federal power generally, was so great that he would not even give the theory an honest and objective fresh look when it came time to do so.
11.21.2008 1:54pm
Enki:
cbolt
well on that point we disagree. that it took the courts over 200 years to finally come to the conclusion that you believe was there all along may be the best proof, not that it's the only proof. but nevertheless, to me that's all rather moot, though it may be interesting to discuss (as is all history). the one thing for sure is, there are very few notes on the debate about the 2nd amendment (as compared to the rest of the constitution). it's hardly discussed. we don't have much guidance on what exactly the framers actually thought, at least not directly. we know that they all revered blackstone, but they didn't adopt blackstone's language - they went for something quite different in fact. probably to our collective benefit (pun intended). but that's really just intellectual masturbation. the bottom line is, the jurisprudence has "evolved", and the Heller decision was the correct result. not sure if the hand-wringing is all that necessary.

but as for your appeal for less obfuscation and misleading explnanations, I think we can come to agreement there. I completely agree that some gun-rights opponents have engaged in this sort of behavior from time immemorial (as have some gun-rights proponents, lets be fair here). I also think that the 'collective rights' view had some merit for some time, but it no longer does. I also think that the majority in Heller, while coming to the right result, did so through just that sort of obfuscation, when it was (in my humble opinion) not necessary.
11.21.2008 1:56pm
Bitter Voter:
Sorry for the double post - missing the first paragraph in my first cut and paste from Word. Eugene, are we ever going to get a spell checker for commnts?
11.21.2008 2:01pm
Affe:
And that, kids, is what you get when you have Catholic-type interpretive structures in a country where the majority is used to Protestant-type interpretive structures.
11.21.2008 2:01pm
Oren:
the obvious answer is a big NO. However, can't we apply the same principle to the Judiciary as well? At least we can remove the pols from executive and legislative branches if we don't agree with their performance. What recourse do we have against judges when they are wrong?

You can elect a President and Senate that will nominate and confirm different judges.


Is a U.S. magistrate even an Article III judge? I thought they were just gatekeepers for real judges. In any event, any such decision would not be final, because any Federal trial court judge's interpretation of U.S. law is subject to appellate review.
Correct. In the Elian case, the magistrate's ruling was upheld both by the district court and the CA11, then denied cert by SCOTUS. That makes it final.
11.21.2008 2:01pm
Oren:
First, it's pretty bold to claim you know your way is so very right anyone who disagrees is some kind of tyrant.
Bold is not the word I would use for this type of self-aggrandizing solipsism. It requires an active belief that everyone else in the world is unprincipled but expects everyone else in the world to believe that you are principled -- it fails even the most basic test of reflectivity.
11.21.2008 2:04pm
cboldt (mail):
-- Wow. Thanks for this conclusive summary.
I don't know ANY topic in history that is not unclear and not complicated.
By "its history" do you mean "the history I make up in my head"?
--
.
Plonk. You, jokeboxgrad, and a few others aren't worth the time it takes to prepare a response to. Talk amongst yourselves.
11.21.2008 2:20pm
J. F. Thomas (mail):
Since the rights enumerated in the Bill of Rights are NATURAL RIGHTS

What gave you that idea? double jeopardy and the right to a jury trial (civil and criminal) and indictment by a Grand Jury are natural rights? Eminent domain is a natural right?

What the hell are you smoking?
11.21.2008 2:33pm
Ryan Waxx (mail):
Some of the rights in the Bill of Rights are indeed intended to protect natural rights. But not all of the Bill is focused on natural rights, nor are all natural rights included in the bill.
11.21.2008 2:40pm
Ryan Waxx (mail):
Eugene, are we ever going to get a spell checker for comments?


Sure. Its called FireFox or Opera. Though I must admit to not always taking advantage of that feature...
11.21.2008 2:43pm
Sagar:
Oren:
You can elect a President and Senate that will nominate and confirm different judges.


so, now that we elected a different President and Senate, are we going to remove the current judges and confirm different judges?

next, i guess you will be telling us about how we can influence the congress to impeach judges ...
11.21.2008 2:58pm
Ryan Waxx (mail):
so, now that we elected a different President and Senate, are we going to remove the current judges and confirm different judges


Actually, yes. Maybe not the supremes, but the democrats' policy of starving the judicial branch of judges will now pay off as they can absolutely pack the courts, tilting it towards their special brand of activism... er I mean protecting special rights that should have been included, er I mean always were a part of the constitution.
11.21.2008 3:07pm
James Gibson (mail):
Enki, I think the point is it took the court almost 100 years to argue its way back to the view it held for the first 100 years, that it was an individual right. As Holder would note, the AG office has only held the collective rights view since the 1930s when Homer S. Cummings (AG for FDR) first postulated the collective right argument in his Brief for the Miller case. For years after that the idea laid dorment until Katsenbach (AG for LBJ) resurrected it and made it the official policy. Katzenbach was also a signator to the Brief with Reno and Holder. Thus, the real push that it was a collective right only began in the mid-60s and thus only lasted forty years.

As it is, the people pushing Collective right are today now pushing that the 2nd amendment isn't the only collective right in the bill of rights. The Brady campaign argued before the SCOTUS hearing that every right in the first 10 amendments is actually collective in nature. It would be interesting if Holder also supports this new interpretation of the Bill of rights.
11.21.2008 3:07pm
eyesay:
Railroad Gin: "But it amazes me how many people on a site like this just buy into the leftist spin and won't at least acknowledge that these issues were more complicated than 'a boy should be with his father' and other mindless mantras."

Oh my. A motherless boy should be with his father is now just leftist spin and mindless mantra. Who are really pro-family, liberals or conservatives, and who just bloviate about it?

I think that for any of us who have spouses and children, if our spouse took our six-year-old child to an enemy foreign country and died on the way, we would raise bloody hell over any obstruction to the rightful return of our boy. This is neither spin nor mantra.
11.21.2008 3:17pm
Public_Defender (mail):
Seizing Elian Gonzalez was an act of courage and devotion to the law on the part of Reno and Holder, especially given the uproar enforcing the law would cause to a politically sensitive community at a politically sensitive time.

The gun control arguments are fair game, but Kopel goes into bizzaro conspiracy-theory territory with the Elian Gonzalez garbage. A group of people were illegally holding a child. They had lost their fight to take custody from the child's father. Essentially, they were little better than lawless kidnappers.

When you hold a child illegally, refuse to return him to lawful authorities, and refuse all requests for peaceful compliance with the law, you leave the government no choice other than to use force. When you barricade yourself into your house and fill it and surround it with wackos, you greatly increase the force needed. When you make it clear that you can attract droves of wackos to physically resist, you give the government no choice but to conduct a surprise raid at an odd hour.

It's a tribute to the professionalism of the raid that no one got hurt. By requiring the government to use force, the family had created a dangerous situation.

As to Tribe's ignorant comments about the lack of the warrant, the general counsel for the INS conclusively demonstrated that they had the authority two days later in a letter to the editor:



Laurence H. Tribe (Op-Ed, April 25), in writing about our successful effort to reunite Elian Gonzalez with his father, asserts that our actions were not authorized because our search warrant ''was not a warrant to seize the child.''

Before entering the home last Saturday, the agents obtained a warrant from a magistrate judge authorizing them to search ''the residence of Lazaro Gonzalez'' and to seize ''the person of Elian Gonzalez . . . a native and citizen of Cuba.'' As a result, the agents had all the legal authority they needed to do what they did.

The warrant was authorized by Federal Rule of Criminal Procedure 41(b), which provides that a warrant may be issued to search for and seize any person ''who is unlawfully restrained.'' That rule is intended to permit just the type of action taken here: entry to recover a child or other person being held without legal justification.

As is well known, Elian was ''unlawfully restrained'' by his great-uncle because the Immigration and Naturalization Service had revoked Elian's parole, terminated his great-uncle's right to care for him temporarily, and directed his great-uncle to return Elian to the immigration service so that he could be reunited with his father. Nonetheless, for nine days, the great-uncle refused to surrender Elian. Consequently, the agents' entry and recovery of Elian was pursuant to a warrant and unambiguously lawful.

BO COOPER
General Counsel, Immigration and Naturalization Service
Washington, April 26, 2000



As to the use of guns, the government had no way of knowing whether there were guns in the house. Mr. Kopel, would you expect cops to gamble that there were no guns? That would just have been stupid.

Given my job, I'm often skeptical of the government's use of force, but here, I don't see any realistic way could the government have extracted Elian from the home without such force. Mr. Kopel, how do you think the government should have returned Elian to his Dad?
11.21.2008 3:21pm
cboldt (mail):
-- I think that for any of us who have spouses and children, if our spouse took our six-year-old child to an enemy foreign country and died on the way, we would raise bloody hell over any obstruction to the rightful return of our boy. --
.
Heh. "Enemy foreign country." Like the East Germans escaping to enemy West Germany. I doubt those parents voluntarily clamored like hell to get their kids back into the Commie bloc, although they might have under orders from the Communist government. Not saying you wouldn't prefer to be on the East German side, mind you.
11.21.2008 3:29pm
RPT (mail):
"JBG:

The people you're describing are obviously pointy-headed elitists. Better to put government in the hands of folks who know how to butcher a moose."

She has broadeded her repertoire to include turkey slaughter.
11.21.2008 3:39pm
Railroad Gin:
If the family was guilty of anything it was custodial inteference not kidnapping. Lets tone down the rhetoric. If I tried to escape the iron curtain or slavery with my child and died along the way I would hope my child's mother would have enough sense not to ask for the child to be returned to slavery. And if she did, I would hope that the powers that be had enough sense not to take her request at face value. Maybe Elian's father truly wanted him returned and maybe he didn't. What I'm objecting to is everyone buying the Clinton/Castro spin hook, line and sinker without even acknowledging the possibility that this wasn't the case.

Perhaps, after the Supremes had denied cert. and the family still refused to turn Elian over I could see the raid as being justified. But not before. The case was still working its way through the court system. This is an historical fact. And again, the decision to turn Elian over to the INS was based on Reno's political calcualtions about what was best for the Clinton Administration, not the best interests of the child. There are times when we sever parental rights because it is in the best interests of the child. Maybe keeping a child from being returned to slavery warrants this and maybe it doesn't. But at least acknowledge there' an issue.

Endlessly repeating "a boy should be with his father" or trying to steal conservative themes about family values addresses none of these concerns and so yes, it is a mindless mantra.
11.21.2008 3:39pm
jukeboxgrad (mail):
fury:

in the two cases of negligent discharge you cited in your post, the articles make mention of there already being firearms regulation


I understand, but so what? There are still many ways to react to the circumstance. For example, it's rational to consider the possibility that there are problems with the way those existing regulations are written, communicated or enforced.

And your correct observation (that there are some existing regulations) has nothing to do with my original point. My original point is that these recent headlines (seemingly more than usual) make this an inopportune moment, politically, for the GOP to make a big fuss about guns.

if Americans believe that more or initial regulation would help to reduce such fatalities, it would be interesting to know the content of the proposed regulations


It's not hard to imagine all sorts of regulations what would have the effect of reducing the kind of incidents I cited. Whether any given regulation is wise, or constitutional, is a separate question. But if one strictly had the goal of making incidents like these less common, it's not hard to imagine how to do that. For example, a law could prohibit children below a certain age from handling certain classes of weapons. The law might only apply in certain places (like a public place). It also might have certain exceptions (like a shooting range facility that's certified for safety by the local police, or an outdoor area that's open for hunting). Or the law could make exceptions for kids who have passed a certain training program (maybe run by the local police, or certified by the police).

It's easy to think of lots of possibilities. You seem to be implying otherwise, and I don't understand why.
11.21.2008 3:49pm
jukeboxgrad (mail):
sarcastro:

I like JBG's collection of anecdotes with no statistical causal link. Anecdotes make good science and even better policy!


What I thought was clear in my original comment, and what I am now explaining for roughly the third time, is that I wasn't trying to make a point about deriving policy from anecdotes. I was making a point about politics, timing, and PR.
11.21.2008 3:49pm
jukeboxgrad (mail):
wys:

the so-called "GOP behavior re Schiavo" was bi-partisan


Most Ds in the House (who voted) voted No. 97% of Rs in the House (who voted) voted Yes. (174 reps were absent.) And in the Senate, "there were three Senators present for the 'unanimous' vote." All Rs. So you have a very loose concept of "bi-partisan."

Even your sainted One supported what you call "the GOP behavior".


He "supported" it only in the sense of failing to show up on Palm Sunday to intervene. And he later said this was a mistake. So you have a very loose concept of "supported."

it's just typical dishonesty on your part to suggest that the Schaivo matter represented some unprecented action against federalism


It's just typical dishonesty on your part to suggest that I said the Schaivo matter represented some "unprecented" action against federalism. That's not what I said. I said it was action against federalism. Are you really trying to suggest it wasn't? If so, that's just more typical dishonesty on your part. Just like your dishonesty in trying to suggest that it was not primarily a GOP initiative. And let's remember why it was done: because it was "a great political issue."

In order for you to claim some connection between gun regulation and accidental discharges, you would have to cite some studies which show that, e.g state A which has "greater regulation" also has a lower incidence of this problem than state B, which has less regulation.


Here:

American children are more at risk from firearms than the children of any other industrialized nation. In one year, firearms killed no children in Japan, 19 in Great Britain, 57 in Germany, 109 in France, 153 in Canada, and 5,285 in the United States.


And here:

The United States has by far the highest rate of gun deaths -- murders, suicides and accidents -- among the world's 36 richest nations, a government study found. The U.S. rate for gun deaths in 1994 was 14.24 per 100,000 people. Japan had the lowest rate, at .05 per 100,000. … The study used 1994 statistics supplied by the 36 countries. Of the 88,649 gun deaths reported by all the countries, the United States accounted for 45 percent … The study found that gun-related deaths were five to six times higher in the Americas than in Europe or Australia and New Zealand and 95 times higher than in Asia.

Here are gun-related deaths per 100,000 people in the world's 36 richest countries in 1994: United States 14.24; Brazil 12.95; Mexico 12.69; Estonia 12.26; Argentina 8.93; Northern Ireland 6.63; Finland 6.46; Switzerland 5.31; France 5.15; Canada 4.31; Norway 3.82; Austria 3.70; Portugal 3.20; Israel 2.91; Belgium 2.90; Australia 2.65; Slovenia 2.60; Italy 2.44; New Zealand 2.38; Denmark 2.09; Sweden 1.92; Kuwait 1.84; Greece 1.29; Germany 1.24; Hungary 1.11; Republic of Ireland 0.97; Spain 0.78; Netherlands 0.70; Scotland 0.54; England and Wales 0.41; Taiwan 0.37; Singapore 0.21; Mauritius 0.19; Hong Kong 0.14; South Korea 0.12; Japan 0.05.


In places with fewer guns, fewer people get shot. Not hard to grasp.
11.21.2008 3:49pm
jukeboxgrad (mail):
cboldt:

I read the links provided by jokeboxgrad, and noticed that at least one of the deadly discharges was by a military-trained, licensed CCW holder. QED, even trained and regulated people can't be trusted with firearms outside of a combat zone.


I once read a story about how an airplane crashed, even though the pilot was highly trained and regulated. Therefore we shouldn't bother training and regulating pilots. QED.
11.21.2008 3:49pm
jukeboxgrad (mail):
ryan:

exactly one of those three happened when Obama was 8. Do not force me to quote your own posts again. It sets an entire new standard for obsfucation


The obfuscation is all yours. What "those three?" You made reference to "some pretty unconsionable acts." You still haven't told us what "acts" you're talking about. Why are you dodging that simple question?

It seems that you were talking about things that happened when Obama was 8. If that's not what you were talking about, then what were you talking about?
11.21.2008 3:49pm
jukeboxgrad (mail):
eyesay:

I think that for any of us who have spouses and children, if our spouse took our six-year-old child to an enemy foreign country and died on the way, we would raise bloody hell over any obstruction to the rightful return of our boy.


But Elian's dad had the bad judgment to live under Castro, which means the dad isn't entitled to get his boy back. And which means that we know better then the dad what's good for the boy. Just like we knew better than Schiavo's husband what's right for Schiavo. This is what's known as "family values."
11.21.2008 3:50pm
jukeboxgrad (mail):
rpt:

She has broadeded her repertoire to include turkey slaughter.


If so, I'm not sure it's a smart move, politically. Shifting to turkey-butchering and away from moose-butchering sounds a little gay to me. Almost French, even.
11.21.2008 3:50pm
Sarcastro (www):
[jukeboxgrad I see your original post, and I apologize for mischaracterizing your comment.

And I'm not sure, but I think the French are cool now, after Sarkozy.

Turkey-butchering is still super gay, though, unless done in truly epic quantities. Like a turkeygeddon 2008 or something.]
11.21.2008 4:03pm
JM Hanes:
Enki:

"there is a reason why 11 out of the 13 states, after the bill of rights was passed, IMMEDIATELY adopted more liberal gun rights in their state constitutions."

I'd note the circular reasoning here for starters. You characterize state constitutional provisions as "more liberal" than federal provisions, and then cite the provisions thus described as proof that federal provisions were less liberal than state provisions. I would also suggest that the unstated, and unsupportable, implication here seems to be that the states sought to assert a right which would otherwise by excluded by the language of the 2nd amendment.

At the same time, you ignore the indisputable reason for gun rights language to be separately iterated by individual states. The Bill of Rights restricts only federal incursions on the right to bear arms. 2nd amendment rights are hardly the only rights which are commonly and explicitly protected (as opposed to defined as your argument necessarily implies) in state constitutions.

You state that: "the founders saw the value in citizen/state militias, as a check against tyranny. that those militias would be completely useless without those citizens' ability to keep and bear arms is patently obvious."

Circularity again ensues, when you apparently take the modern absence of state militias expressly designed to check potential tyranny as evidence that such checks are, themselves, simply appendix-like relics of the past, and proceed to presume that the founders would agree. If we are to rely on such speculation, I'd suggest that the founders might see the need to empower individuals as all the more compelling. So too, the very fact that we can no longer assume that every citizen has a musket to wield in his own defense would seem to argue more, rather than less, strongly for protecting the right to bear arms of individuals who do.

What you have really relegated to the past is the concept of government as the primary vehicle of tyranny, against which vigilence must be constantly and robustly exercised. To say that you are no originalist hardly does justice to your dismissal of the single, most powerful, generating force that shaped our founding documents.
11.21.2008 4:08pm
JM Hanes:
Oren:

"In the almost unimaginable event that DC LEOs continue to arrest the citizens for violations of laws that have already been struck down, then we can discuss sending in the Federal Marshals to effect the court's orders."

With apologies for not taking the time to google up the individual in question, I believe an upper echelon DC official expressed an intention of doing just that.
11.21.2008 4:17pm
Tony Tutins (mail):

Here are gun-related deaths per 100,000 people in the world's 36 richest countries in 1994: United States 14.24; Brazil 12.95; Mexico 12.69;...

In places with fewer guns, fewer people get shot. Not hard to grasp.

Culture matters far more than gun laws do. More people are killed by hands and feet alone in the US than by all methods in most of the countries in the list. Note, further that Mexico's draconian gun laws do not prevent its high rate of "gun-related deaths." Finally, half of America's "gun-related deaths" are suicides, the bulk of whom are elderly white males. Most suicides can be prevented; people who believe they have something to live for seldom commit suicide.
11.21.2008 4:47pm
Public_Defender (mail):

If the family was guilty of anything it was custodial interference not kidnapping.

I don't know about Florida, but that would still be a crime in many states.

Bottom line: Holder (and the rest of the Clinton DOJ) had the courage to take an enormous political risk in order to do the right thing. Their actions defused a dangerous situation caused by a lawless mob without anyone getting hurt.
11.21.2008 4:48pm
Oren:

With apologies for not taking the time to google up the individual in question, I believe an upper echelon DC official expressed an intention of doing just that.

If that official does, in fact, ignore a lawful order of the court, he should be held in contempt until such time as he complies. If that requires sending in Federal Marshals (doubtful), so be it.

I see no reason that a modern-day George Wallace should be allowed to stand in the way of our constitutional rights. Apparently, wyswyg thinks differently (at least insofar as the court dares to interpret the constitution in a manner inconsistent with his preferred outcome).
11.21.2008 5:00pm
Oren:

The Bill of Rights restricts only federal incursions on the right to bear arms. 2nd amendment rights are hardly the only rights which are commonly and explicitly protected (as opposed to defined as your argument necessarily implies) in state constitutions.

Irrelevant. The 14A makes any restrictions on Congress automatically coterminous with restrictions on the States.
11.21.2008 5:01pm
Sarcastro (www):
[Oren not all restrictions. Jury trials, for instance.]
11.21.2008 5:07pm
JM Hanes:
jukeboxgrad

"Are you and your little straw man having fun?"

You're certainly having fun with yours!

Cars are not constitutionally protected; nor are suitcase nukes, other WMD, or pools, bath tubs, and knives, for that matter which are all available for regulation, whether sensible or not.

"Relitigating the 60's," however, is as pseudo-legal LOL funny as the rest of your timeliness straw men are beside the point.
11.21.2008 5:07pm
Oren:


so, now that we elected a different President and Senate, are we going to remove the current judges and confirm different judges?

next, i guess you will be telling us about how we can influence the congress to impeach judges ...

This lag-phase is a positive factor. If you want to change judicial philosophy in such an extreme way (extreme in the sense of different from current), then you should have to muster large enough majorities for large enough periods of time. There is an implicit bias in the system towards cautious, incremental change that serves us well. It's fine if the House and Senate blow back and forth according to the political winds, but the courts should move slower and according to some time-average.

In fact, this is precisely what the GOP did to the Warren Court after the 60's -- Republicans occupied the oval office 28/40 years and moved the courts significantly to the right (a good thing, IMO, since the Warren Court was too far left even for my tastes).
11.21.2008 5:08pm
Fury:
jukeboxgrad:

(refers to study on gun deaths in world's richest nations - n.b. study is:

Krug EG, Powell KE, Dahlberg LL. Firearm-related deaths in the United States and 35 other high- and upper-middle income countries. International Journal of Epidemiology 1998;27(2):214-221.


"In places with fewer guns, fewer people get shot. Not hard to grasp"

That statement is not supported from the study by Krug, Powell and Dahlberg. The study did not examine the number of guns in each nation, and that information needs to be known to determine which country has fewer guns, more guns, guns per capita, in total, etc.
11.21.2008 5:11pm
Oren:

[Oren not all restrictions. Jury trials, for instance.]

One exception that proves the rule. Here's hoping the 2A doesn't become the second.

For the most part, incorporation has been routine.
11.21.2008 5:11pm
whit:

Culture matters far more than gun laws do. More people are killed by hands and feet alone in the US than by all methods in most of the countries in the list. Note, further that Mexico's draconian gun laws do not prevent its high rate of "gun-related deaths." Finally, half of America's "gun-related deaths" are suicides, the bulk of whom are elderly white males. Most suicides can be prevented; people who believe they have something to live for seldom commit suicide.



culture also matters (significantly) for suicides.

the japanese have a much higher suicide rate than the US.

their suicides rarely are done by guns since so few japanese have access to guns.

japanese americans also have high rate of suicide.

and since they have access to guns, they tend to use them fairly frequently in suicide.

it's a cultural thing that is the primary factor in suicides. guns are merely a convenient means in the US. in japan, they aren't.

whether or not they use a gun (oooooh.. gun violence), they are equally dead.
11.21.2008 5:17pm
JM Hanes:
Oren:

Enki was asserting the relevance of nearly contemporaneous state constitutions, but perhaps it would have been clearer if I had used the past tense. The 14th Amendment was a post Civil War addition.
11.21.2008 5:23pm
PubliusFL:
Jack Okie: "At this point, especially after Heller, I would expect any attempt to impose serious gun control to result in a memorable push-back."

Don't expect an attempt to impose serious gun control right away. They just got the frog to jump into the pot by electing Obama. Next step is to turn the heat up just a little bit.
11.21.2008 5:45pm
I Am In Your Home (mail):

I don't know ANY topic in history that is not unclear and not complicated.


Well sure, if you are the type of personality that gives equal time to flat-earthers and roundish-earthers, I can see how it could be complex for you.


Whether the Earth IS round or IS NOT round is not a question of history - it is a question of current fact.

The historical question of HOW the earth was formed and WHY it was (and is) round (or an 'oblong spheroid' if you may) is certainly complicated.

Moreover, if the 2A's language is so simple and obvious and black and white, then why is such "RESEARCH" even necessary?
11.21.2008 6:21pm
Robert WCR (mail):
Guesty Mcguesterson said:
Seriously Kopel, whatever point you may have had is completely lost by this claim (and I read the Barry Law Review piece. It's even less convincing). So you don't care when 18 year olds die. This is where you draw the line. Things are great. The gangbangers are 18, people. Move along, nothing to see here. Guns are off the f-ing charts that's how cool they are.


Only scumbags have sympathy for gangbangers while advocating disarming the potential victims of those gangbangers.
11.21.2008 7:35pm
R7 (mail):
jukeboxgrad said:
By the way, nuclear weapons don't kill people. People do. If you could go to nukes.com and order a small nuclear device that would put you in a better position to defend your family compound in, say, Waco, then shouldn't you be able to do so? After all, it's a kind of "arms," right? And which part of 2A says it's only talking about "arms" that use gunpowder rather than plutonium?


If it was possible for small groups to easily obtain (thru the black market)or manufacture nukes, the national government would cease to exist. The nation-state would fracture into thousands of sovereign micro-states. The national government's law enforcers would be detered (or massacred) from enforcing its laws and taxes. Without the taxes, the nation-state's goverment collapses. This might happen near the end of the twenty-first century.

Right now, nukes are very hard to manufacture and maintain. So today, only nation-states have them. They are quite useful to small nation-states because it allows them to deter larger more powerful nation-states.
11.21.2008 7:46pm
R7 (mail):
Sarcastro said:
Who needs centralized consensus of societal principles anyway?


Trying to force such a centralized consensus on factions with mutually hostile and contradictory value systems isn't sustainable in the long run, especially as we head further into the twenty-first century. The end result is civil war.

Such a concept might be obsolete by the end of the twenty first century. see earlier post.
11.21.2008 7:57pm
Tmack (mail):
Orwin did you read Kopel's post?
Holder doesn't know what the second amendment means, and when you consider how simple it is, it is obvious, OBVIOUS, he feigns understanding of the law, like most lawyers do. He is just lucky he is black, so he gets a pass by pc, mediocre Washington.

BTW: My father went to Harvard law and he practiced law, not preached it.
He said, "Those who can do, those who can't teach and those who can't do and can't teach become law professors."
11.21.2008 8:07pm
Sarcastro (www):
[R7 many society has a loyal opposition faction, who disagree but won't take up arms to overthrow the society. It isn't antithetical to societal sustainability at all.

as for everybody getting nukes, I don't see much evidence that this is nigh. End were it to become the case, I suspect society's survival instinct would lead to some sort of social or technological adaptation/innovation to meet such a threat. C.f. the machine gun and WW-I.]
11.21.2008 8:08pm
Sarcastro (www):

when you consider how simple it is

So simple you get over 200 posts discussing it's interpretation!
11.21.2008 8:09pm
R7 (mail):
enki said:
disagreeing with Holder on this issue is one thing. Calling it so obviously wrong, however, is completely disingenuous. His view was THE view for the majority of our country's judicial history (originalists beware!). it was only recently that courts began to take the view that "the people' refers to individuals rather than a collective body. WHY? perhaps because without that view, the 2nd amendment is effectively moot. that's because "the people" are now incapable of physically fighting back government tyrrany (A La Blackstone), and because militias are (outside of Kansas) a thing of the past.


Helpful hint, this is the twentyfirst century not the twentieth. "militias are a thing of the past"? The technological and political trends disagree.
11.21.2008 8:16pm
R7 (mail):
Sarcastro said:

R7 many society has a loyal opposition faction, who disagree but won't take up arms to overthrow the society. It isn't antithetical to societal sustainability at all.


True, but I think if a country has one faction that believes in subjugating another faction (and vice versa), it isn't going to be sustainable. That's what happens when one puts to much power into the central government of a highly diverse nation-state. Do you think merging the populations of Israelis and Palestinians into a single state is advisable? I noticed that many politicians who support gun bans are also lenient towards gangbangers who cause most of the violence. Wonder why?


as for everybody getting nukes, I don't see much evidence that this is nigh. End were it to become the case, I suspect society's survival instinct would lead to some sort of social or technological adaptation/innovation to meet such a threat. C.f. the machine gun and WW-I.


Yeah, it was important for me to add the phrase "might be" when it comes to small groups getting nukes. Nukes right now are hard to manufacture and maintain. As for bioweapons and nanite weapons.......

Its true that there will likely be social and/or technological adaptations to survive in such a world. A nation-state with dense urban cities, classic army and police battalions will probably not be one of them.
11.21.2008 8:35pm
cboldt (mail):
-- Its true that there will likely be social and/or technological adaptations to survive in such a world. A nation-state with dense urban cities, classic army and police battalions will probably not be one of them. --
.
I predicted on 9/11 that the government would act in a direction that was opposite to "helpful," in that it would advocate and drive toward protecting centralized production coupled with distribution, and a roughly "uniform" or centralized control system. Not to say that centralized production coupled with distribution is bad, in fact I think it is awesome and good. But it's also a weakness, and should be supported with a parallel system, at least useful for short term (e.g., 1-10 year) sustainability in case the centralized control and production is compromised.
.
But instead of exhorting the public toward learning some self-sufficiency skills and neighborhood or community organizing, the public was encouraged to look to Washington for solutions.
.
This action by government/education/press "leaders" (and they literally are, the people follow) was easily predictable on the basis of the hubris, arrogance, and status that these "leaders" self-accord. If the public ever figures out how badly their personal resources have been mis-managed, they are going to be really pissed off.
11.21.2008 8:46pm
Sarcastro (www):
[R7 agreed re: our current society would have to change if nukes become common. Nanite weapons don't keep me up at night as of yet, though.

I still disagree that even a subjected faction is sustainable, or has been historically. The process of subjugation is tricky, but once you're a generation in it's pretty easy. Slaves are the obvious example. Greece and Rome had them throughout their long runs, and I think America would still have them and be doing fine if we were a direct democracy.

Though that strays from my original point about centralized societal principles being needed for a society, since subjugation is not a necessary condition for such principles to function.]
11.21.2008 8:47pm
cboldt (mail):
-- Right now, nukes are very hard to manufacture and maintain. --
.
Will probably be ever so. It takes large amounts of energy to refine the essential raw material. More risk in the existing stockpile being taken from the hands that presently control it, than from new (non-nation-state) hands making a separate stockpile.
11.21.2008 8:53pm
jukeboxgrad (mail):
sarcastro:

I apologize


Thanks.

the French are cool now, after Sarkozy


Good point. "French" isn't nearly half the epithet it used to be, back in the good old days of "freedom fries." That darn Sarkozy. He's hip. No wonder Palin was eager to chat with him. A little too eager.

Turkey-butchering is still super gay, though, unless done in truly epic quantities.


I think I spoke too soon about this. I hadn't seen the original story. Actually, I think commenting on the "levity" of feeding live turkeys into a turkey-killing apparatus is admirably ungay. And very popular: it's the top video on youtube today. Over a million views in about 24 hours.

Palin is a major media phenomenon, and not necessarily in a good way. I'll say it again: she is headed for her own reality show.
11.22.2008 12:24am
jukeboxgrad (mail):
hanes:

Cars are not constitutionally protected


I know. I didn't say they were. Speaking of straw men. But the policy issues are nevertheless comparable. We should and would object to excessive vehicle regulation even though it's not a constitutional issue. Likewise for "pools, bath tubs, and knives." And we should also be concerned about the other extreme: under-regulation.

nor are suitcase nukes, other WMD


Those things are "not constitutionally protected?" Really? I already asked this question: which part of 2A says it's only talking about "arms" that use gunpowder rather than plutonium? Or other clever substances, like, say, mustard gas?

By the way, I completely agree with those who have pointed out that nukes are very hard to make, and will be for a long time. But the basic premise of the question is still valid and relevant.

which are all available for regulation


You're implying that guns, because they are "constitutionally protected," are not "available for regulation." Really? The National Firearms Act was passed in 1934. It's definitely "regulation," and it's definitely about firearms. Was it struck down? I hadn't heard.
11.22.2008 12:24am
jukeboxgrad (mail):
fury:

That statement ["in places with fewer guns, fewer people get shot"] is not supported from the study by Krug, Powell and Dahlberg. The study did not examine the number of guns in each nation, and that information needs to be known to determine which country has fewer guns, more guns, guns per capita, in total, etc.


You are correct about what "information needs to be known." And you are correct that this information ("guns per capita") is not in the Krug study. But I didn't say it was, and it doesn't need to be, because it's readily available elsewhere, like here. And what you see is that both measures (guns per capita and gun-related deaths per capita) are highly correlated, and that we are very high on both scores.
11.22.2008 12:24am
jukeboxgrad (mail):
whit:

guns are merely a convenient means in the US. in japan, they aren't. whether or not they use a gun (oooooh.. gun violence), they are equally dead.


The key word is "convenient." When lots of people have convenient access to tools that are very effective at causing death, more people (themselves and others) end up dead. So they don't end up "equally dead," because people intending to cause death (to themselves and/or others) are somewhat more likely to fail when access to extremely effective tools is not quite so "convenient." And this might be appealing if one's basic perspective is truly 'pro-life.'
11.22.2008 12:25am
whit:

The key word is "convenient." When lots of people have convenient access to tools that are very effective at causing death, more people (themselves and others) end up dead. So they don't end up "equally dead," because people intending to cause death (to themselves and/or others) are somewhat more likely to fail when access to extremely effective tools is not quite so "convenient." And this might be appealing if one's basic perspective is truly 'pro-life.'



except that's rubbish. you are entirely missing the point. japanese americans don't commit more suicide because they have "CONVENIENCE" here.

they have easy access to guns here, not at all in japan.

the difference is in the means .

convenient guns don't make people commit suicide any more than it makes people commit homicide.
11.22.2008 3:08am
jukeboxgrad (mail):
whit:

convenient guns don't make people commit suicide any more than it makes people commit homicide


Do you have any proof to support that statement? International suicide rates are here. International gun ownership rates are here. I realize that correlation and causation are not the same thing. And the correlation is far from perfect. Nevertheless, there seems to be some connection. So I wonder if you have any data contrary to this, aside from the instance of Japan. They seem to be kind of an exception, because, as you pointed out, they have a lot of suicide even though they don't have a lot of guns.

You see something similar when you look at US states. Suicide rates by state are here (pdf). Gun ownership rates by state are here. States with lots of guns (per capita) tend to have lots of suicide (per capita).

convenient guns don't make people commit suicide any more than it makes people commit homicide


It turns out that "higher rates of gun ownership correlate with higher homicide rates." So I wonder if you have any data to support these various statements you're making.
11.22.2008 11:58am
bacchys (mail):

Why doesn't the Amendment simply say: "The right of a person to keep and bear arms shall not be infringed"?

It's easy to ignore the complexity of this issue, and say that it's black and white and clear and obvious.

I think it's because the First Congress (Madison especially) didn't foresee the likelihood that Congress would one day seek to restrict the private ownership of arms.

Among the issues the Federalists had to contend with in arguing for the ratification of the Constitution was the charge that the militia clauses would empower the Federal government to abolish the state militias. The purpose of the Second Amendment is clearly to protect the militias. It even says so. But the means lit upon is where the disagreement comes in. Madison wanted to protect the states' militias without subtracting from the powers the Constitution delegates to Congress- including the powers over the militia.

How to protect the ability of the states to have militias without ending Congress's powers to regulate, organize, arm, and call them to Federal service? By guaranteeing that the source of the militia (the people) could possess arms suitable to that purpose.

Holder and the other collectivists are wrong. Their concept of a collective right is unworkable and nonexistent outside this special theory of the Second Amendment. It's a clever way of saying that you can have a right but never exercise it.
11.22.2008 1:58pm
Tony Tutins (mail):

higher rates of gun ownership correlate with higher homicide rates.

I couldn't find a publicly accessible version of this article to critique. Hemenway, like Drs. Kellermann and Wintemute, is hardly a disinterested observer.
11.22.2008 2:06pm
Fury:
jukeboxgrad:

"You see something similar when you look at US states. Suicide rates by state are here (pdf). Gun ownership rates by state are here. States with lots of guns (per capita) tend to have lots of suicide (per capita)."

You can make that assertion, but there are some red flags which should make folks cautious when comparing suicide rates and gun ownership rates using the data you cite. The data for suicide rates by state lists no year or source for the data. The data for "states with lots of guns (per capita)" has the following disclaimer:

"Caution: Annual fluctuations in state levels combined with often relatively small populations can make these data highly variable. The use of several years’ data is preferable to conclusions based on single years alone."
11.22.2008 3:02pm
jukeboxgrad (mail):
tutins:

I couldn't find a publicly accessible version of this article to critique.


It's publicly accessible, just not for free. But the press release for the study is here, and the abstract is here. Some interesting related information is here, here and here.

Hemenway, like Drs. Kellermann and Wintemute, is hardly a disinterested observer.


If you can find a study showing a contrary result, done by someone you consider "a disinterested observer," hopefully you'll tell us about it.
11.22.2008 3:33pm
jukeboxgrad (mail):
fury:

The data for suicide rates by state lists no year or source for the data.


The source is listed, but just not in an obvious place. You need to find this related page, which links to WP here:

Gun Ownership by State

In 2001 the Behavioral Risk Factor Surveillance System (BRFSS) in North Carolina surveyed 201,881 respondents nationwide, asking them, "Are any firearms now kept in or around your home? Include those kept in a garage, outdoor storage area, car, truck, or other motor vehicle." Here are the results.


The BRFSS is part of CDC. More info on the BRFSS is here.

The use of several years’ data is preferable to conclusions based on single years alone


Looking at more data is almost always going to be "preferable" to looking at less data. But the data I showed is still sufficient to form some tentative conclusions. Especially in the absence of contrary data. Do you have any?
11.22.2008 3:33pm
juris_imprudent (mail):
enki,

the opinion advanced in that case is a baldfaced attempt to tie that notion to the original view of the founders, that effort is, in my book, unnecessary. the right to keep and bear arms is important but for much different reasons today than it was back in the 18th century. i see nothing wrong with that.

Your 'book' is incorrect. The founders were familiar with Blackstone's Commentaries which clearly included a right to self defense. Owning guns was never just about the militia. Owning guns is really more of a prerequisite for a militia. But gun ownership then and now has never been about just one thing.
11.22.2008 4:54pm
juris_imprudent (mail):
JBG sez In places with fewer guns, fewer people get shot. Not hard to grasp.

Yet Mexico has draconian gun laws and has almost as many gun deaths as the U.S. Switzerland has guns in more homes then the U.S. and has less gun deaths. How about you think rather than just swallowing propaganda?
11.22.2008 4:57pm
Fury:
jukeboxgrad:

Looking at more data is almost always going to be "preferable" to looking at less data. But the data I showed is still sufficient to form some tentative conclusions. Especially in the absence of contrary data. Do you have any?

No, and have not looked for contrary data. Just wanted to caution VC readers regarding the data being cited
11.22.2008 6:07pm
whit:
jbg, even within the US, cultural differences are what matters with suicide rates, NOT gun ownership.

japanese americans - high

african americans - much lower

etc.

some european countries also have higher suicide rates than the US and much lower gun ownership rates.

switzerland has high ownership rates and low homicide rates (and also MUCH lower crime rate than england, which has much lower gun ownership rates).

mexico has low gun ownership rates (and nearly impossible to get a permit to carry) and high homicide rates, etc.

first of all, correlation of course =/= causation. more importantly, as long as you don't cherry pick stats, there really are plenty of examples that counter yer claim that more guns = more suicides.

on a city by city basis, there are tons of cities (seattle for example) with high gun ownersip and in a right to carry state, with relatively low homicide rates and cities with low gun ownership in "may issue" states with much higher homicide rates.
11.22.2008 6:48pm
jukeboxgrad (mail):
juris:

Switzerland has guns in more homes then the U.S. and has less gun deaths.


If you want to have a conversation about this (or anything else), getting your facts straight would be a good start. The US has this many guns per 100 residents: 90. Switzerland has this many: 46. So please document your claim that "Switzerland has guns in more homes then the U.S."

And the firearm-related death rate (per 100,000 population in one year) in the US is 10.0. In Switzerland it's 6.4. So yes, it has "less gun deaths," in a manner that's remarkably proportional to the rate of ownership.

That US rate (10.0) is the highest rate of any industrialized nation. All the following nations have a lower rate (most of them are much lower): Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Hong Kong, Ireland, Israel, Italy, Japan, Netherlands, New Zealand, Norway, Portugal, Singapore, South Korea, Spain, Sweden, Switzerland, and Taiwan.

To find a higher rate, you have to look at developing countries, like Brazil and Mexico. And their rates are only somewhat higher than ours, not radically higher.

Mexico has draconian gun laws and has almost as many gun deaths as the U.S.


Yes, Mexico has a particular problem with gun violence, where a relatively small number of guns are doing a large amount of shooting. So what? When you look at statistics, you're always going to find various exceptions, for all sorts of obvious and non-obvious reasons.
11.22.2008 9:15pm
jukeboxgrad (mail):
whit:

even within the US, cultural differences are what matters with suicide rates, NOT gun ownership


It's a matter of common sense that cultural differences have a big effect on violence, including homicide and suicide. But you've done nothing to document your claim that gun ownership rates are not also an important factor.

switzerland has high ownership rates and low homicide rates


I already posted the numbers comparing them and us. The ratios are proportional.
11.22.2008 9:15pm
R7 (mail):
Demographics not gun ownership determines homicide rates. Compare Washington D.C., New Orleans (before Katrina), Philadelphia,PA with Dillsburg,PA and Idaho and Hawaii.

http://www.ojp.usdoj.gov/bjs/homicide/tables/urbantab.htm
11.22.2008 11:08pm
R7 (mail):
Another thing is that today as mentioned by earlier posters, if the black market itself is somehow magically extinguished, if the demand for guns by criminals is still there, machine shops (today, fablabs) would supply them. Gun control is obsolete.
11.22.2008 11:14pm
Tony Tutins (mail):
If you can find a study showing a contrary result, done by someone you consider "a disinterested observer," hopefully you'll tell us about it.

Hemenway's position is "Guns 'r' bad, mmmm'kay?" He, along with Kellermann, wants to prove that firearms possess a magic totem effect which bends the minds of their owners, causing them to kill themselves and their loved ones. Saying one should attempt to prove the opposite is farcical.


Switzerland has guns in more homes then the U.S. and has less gun deaths.


If you want to have a conversation about this (or anything else), getting your facts straight would be a good start. The US has this many guns per 100 residents: 90. Switzerland has this many: 46. So please document your claim that "Switzerland has guns in more homes then the U.S."

The statistic under consideration is guns per residence. If you want to drag guns per capita into the discussion, you're going to have to compare number of people per residence, as well as national gun-buying habits. The frugal Swiss likely do not indulge their gun-buying habit as much as we spendthrift Americans.

Yes, Mexico has a particular problem with gun violence, where a relatively small number of guns are doing a large amount of shooting. So what? When you look at statistics, you're always going to find various exceptions

So, statistics that prove your thesis are valid, while those that disprove it are outliers and can be discarded.
11.22.2008 11:28pm
R7 (mail):
11.22.2008 11:41pm
R7 (mail):
Speaking of suicide rates:

Japan: male 36.5 female 14.1

U.S.: male 17.6 female 4.1

From the World Health Organization, surely a Reich-Wing organization right? Right? Must be Japan's higher gun ownership rate than America's among its ordinary citizens. Yup, that's it.

That aside, how does a gun ban actually prevent a gangsta homey from aquiring a gun?
11.22.2008 11:51pm
Litigator (mail):
Michael you know damn well that the excessive force cases ny neighbors are not the issue . The issue is the jackbooted fascism of disregarding the 11th circuit and many other laws to seize Elian at gunpointon Good Friday. This opinion is shared by constitutional scholars Dershowitz and Tribe.

" As the April 23, 2000 edition of the Media Research Center's CyberAlert noted at the time, Andrew Napolitano of Fox News charged that the early-Saturday seizure of the then 6 year-old Gonzalez from those who were taking care of him flagrantly disobeyed a ruling of the 11th Circuit Court of Appeals.

In response to a question from Fox News anchor Jeff Asman, Napolitano said the following (bolds are mine throughout this post):


The order issued by the 11th Circuit Court of Appeals four days ago .... said once the INS chooses the guardian, and the INS chose Lazaro Gonzalez (Elian's paternal great uncle — Ed.) to be the guardian, and an application for asylum has been made by the guardian, the INS can not change the guardian and that's exactly what they did here."

Asman: "So is this executive overreach?"

Napolitano: "This is more than executive overreach. This is contempt of the circuit court of appeals order. This is a high class kidnapping is what it is, sanctioned by no law, sanctioned by no judge..."


In an interview later that morning, Napolitano left Holder speechless (also available in the fourth item at this link):

Napolitano: Tell me, Mr. Holder, why did you not get a court order authorizing you to go in and get the boy?

Holder: Because we didn't need a court order. INS can do this on its own.

Napolitano: You know that a court order would have given you the cloak of respectability to have seized the boy.

Holder: We didn't need an order.

Napolitano: Then why did you ask the 11th Circuit Court of Appeals for such an order if you didn't need one?

Holder: [Silence]

Napolitano: The fact is, for the first time in history you have taken a child from his residence at gunpoint to enforce your custody position, even though you did not have an order authorizing it.


Earlier in that interview, as noted in a different CyberAlert item on the same day, Holder showed that he wouldn't admit the truth, even when in plain sight:

Napolitano: When is the last time a boy, a child, was taken at the point of a gun without an order of a judge. Unprecedented in American history."

Holder: "He was not taken at the point of a gun."

Napolitano: "We have a photograph showing he was taken at the point of a gun."

Holder: "They were armed agents who went in there who acted very sensitively..."


Here is the Pulitzer Prize-winning photo taken by Alan Diaz of the Associated Press depicting how Elian Gonzalez was "was not taken at the point of a gun" (larger picture is at link):

Someone should ask Barack Obama if he is at all bothered by Mr. Holder's inability to even recognize when someone is being taken at gunpoint, and how, among all the possible Attorney General candidates out there, Mr. Holder was still deemed so deserving to be nominated as the nation's highest law enforcement official.
Above from Newsbusters

You might also look into the fact that Holder was reprimanded for using his prosecutorial office to indict a citizen who CRITICIZED him. (Popa case)

Looking more and more FASCIST every day
11.23.2008 12:40am
jukeboxgrad (mail):
r7:

Compare Washington D.C., New Orleans (before Katrina), Philadelphia,PA with Dillsburg,PA and Idaho and Hawaii.


That might be interesting to do, except that the link you provided doesn't show data for those places. Maybe you had in mind a different link.

Gun control is obsolete


Then presumably any government efforts to impose gun control are no cause for concern.

Speaking of demographics: Towns in Idaho. Washington D.C. Crime rates in U.S.


Those links are not that helpful, because they show raw data, without normalizing it on a per capita basis. Therefore comparisons are hard. But I still notice some interesting things. Boise has 198,212 people, and 127 rapes. DC has 581,530 people, and 182 rapes. That means the rate in Boise is more than twice as high. What do you make of that? What does it tell us about "demographics?"

Must be Japan's higher gun ownership rate than America's among its ordinary citizens.


Gun ownership is not the only factor that influences homicide and suicide rates. I already acknowledged that. But nice job with the straw man.

how does a gun ban actually prevent a gangsta homey from aquiring a gun?


You already told us that "gun control is obsolete," which means that anyone can get what they want, so what's the point to even discussing the effect of "a gun ban?" Because it's going to make no difference to anyone, right?
11.23.2008 1:15am
jukeboxgrad (mail):
tutins:

Saying one should attempt to prove the opposite is farcical.


What's "farcical" is assuming that anyone would accept your claims even though you're providing this much data to back them up: none whatsoever.

The statistic under consideration is guns per residence.


Except that no one has provided any data regarding "guns per residence." So it's not "under consideration." It's just part of a claim someone made without providing any data to back it up. If you have any data regarding "guns per residence," let's see it. If you don't, then calling it something "under consideration" is pretty pointless.

If you want to drag guns per capita into the discussion


It's not a question of what I "want to drag … into the discussion." It's that data for guns per capita is readily available (for both Switzerland and the US, as well as a bunch of other places). And data for "guns per residence" is not. I have this quaint notion that it's a good idea to focus on data that's actually available, rather than data that magically popped out of someone's imagination.

statistics that prove your thesis are valid, while those that disprove it are outliers and can be discarded


When most of the numbers point in one direction, and one or two numbers point in another direction, then it is indeed appropriate to treat them as "outliers" and discount them. That's common sense, not brain surgery.
11.23.2008 1:15am
jukeboxgrad (mail):
litigator:

In response to a question from Fox News anchor Jeff Asman, Napolitano said the following


According to Andrew McCarthy of NR, Napolitano is "moronic." So using him as an authority doesn't help your credibility.
11.23.2008 1:15am
Litigator (mail):
Jukebox:
Napolitano is not the authority , nor is McCarthy.m Holder convicts himself. You are trying to divert attention from the issue I raised, which is that there is ample evidence that Holder is just as contemptuous of civil liberty and the Constitution as was Reno, Clinton, Bush, Chertoff, Cheney etc
I linked a video of Holder LYING, saying Elian was taken witout guns and with Sensitivity. Napolitano was CORRECT in refering to the photo, which speaks for itself. Please also note the Popa case, where Holder chose to criminally prosecute someone who INSULTED him. Sounds like more and more erosion of freedom to me.
11.23.2008 2:11am
jukeboxgrad (mail):
litigator:

Napolitano is not the authority , nor is McCarthy.m Holder convicts himself.


You cited Napolitano saying various things that have nothing to do with the photo. So you did indeed present him as a legal authority.

I linked a video of Holder LYING


Do you understand the difference between "LYING" and making a mistake? And you didn't link a video. Your post contains this many links: zero. What you did is grabbed a bunch of text you found elsewhere, and pasted it in without telling us exactly where you got it, and without providing any links at all. Why did you say you "linked a video?"

What you gave us is a Tom Blumer Newsbusters article that can be found here and here (some minor differences in the text indicate that you used the former version). And a close look shows us how dishonest Blumer is. He does not quote the complete exchange between Napolitano and Holder. And he does not provide a link to the complete exchange between Napolitano and Holder, either in text form or video form. So you are completely wrong when you claim you "linked a video." You provided no links whatsoever, and the article you grabbed your text from also provided no links to any video, or a transcript of the video.

The relevant video is here. A transcript of the exchange is here. Please note these key words, said by Napolitano:

I don't know if you can see our screen


Napolitano and Holder were not in the same place. Napolitano had a photo, and presented it to the viewers, but Holder could not see the photo. And Napolitano admitted that he understood that Holder could not see the photo ("I don't know if you can see our screen").

This interview happened just a few hours after the event. Holder had not yet seen the photo. Napolitano decided to take advantage of this fact and play gotcha.

Now pay attention to what Blumer said:

Holder showed that he wouldn't admit the truth, even when in plain sight … Someone should ask Barack Obama if he is at all bothered by Mr. Holder's inability to even recognize when someone is being taken at gunpoint


Blumer is indicating that the photo was in Holder's "plain sight." Trouble is, it wasn't. And Blumer seems interested in misleading us on this point, because nowhere does he include the key words by Napolitano ("I don't know if you can see our screen"), and nowhere does he give us a link to let us find those words. Instead, Blumer implies that Napolitano showed the photo to Holder, and then Holder denied what was in the photo. Trouble is, that's not what happened. Napolitano showed the photo to us, but Holder had not yet seen it, and could not see it while being interviewed by Napolitano.

Now let's turn back to what you said:

I linked a video of Holder LYING


Really? Let's review some basic facts:

A) You linked to nothing whatsover
B) Your source, Blumer, linked to no video whatsover
C) Your source, Blumer, linked to no full transcript of the conversation
D) There is no "video of Holder LYING." There is video of Holder describing what he understood had happened, just a few hours after it happened, and prior to seeing that photo.
E) You quoted Blumer falsely implying that Napolitano showed the photo to Holder. Trouble is, that's not what happened. The photo was visible to viewers, but not visible to Holder.

You, Blumer and Napolitano are all roughly equal in credibility.
11.23.2008 3:27am
Litigator (mail):
Poor poor Jukebox. Links, shminks....Thank you for cleaning that up for me. Now we can all see that indeed Eric Holder denied the use of guns, and said the armed thugs were sensitive in seizing Elian. He lied. He knew better. He just did not think he would get caught, becuase he did not know that there were photos, since every effort had been made to prevent same including an attack by the jackboots on members of the press. The fact still remains that Holder and Reno acted in defiance of the 11th Circuit and conducted an unconstitutional commando raid. Alan Dershowitz and Lawrence Tribe support my position. Holder additionally abused his prosecutorial powers and had a person arrsted and tried for insulting him. He also issued the pardons for CLinton's criminal friends, and filed an amicus brief in the Heller case asserting that gun rights are collective. He is a fascist, and unfit for the office of ATtorney General. You cannot refute these basic points, no matter how many little nits you pick. I am not distracted by your tactics, and I suspect most here are not either.
11.23.2008 3:57am
Mike Vanderboegh (mail):
"How many Clintonista gungrabbers can dance on the head of an Obama pin?"

Many, it would seem. It would also seem to me that much of the back-and-forth above misses the point. To quote the sage philosopher queen of the hip left, Oprah Winfrey, "If someone shows you who they really are, you should believe them." To the gunnies above who argue with liberals about what actually happened at Waco, just refer them to Mike McNulty's documentaries and move on. To those who argue about what's in an Elian photo, I would refer them to Wright's Razor, a derivation of Occam's Razor: "There are some things in life so obvious, so factually unchallengeable, that if you have to explain them to somebody, the stupid sonofabitch will never get it anyway."

Ergo, you are wasting your time arguing with antigunners when you should be preparing to meet the thugs that are once more suiting up to come to a neighborhood near you. Forget Elian and forget the Davidians. What are YOU going to do in the immediate future to protect YOUR family and YOUR liberty?

Mike Vanderboegh
III
GeorgeMason1776@aol.com
11.23.2008 7:54am
Oren:

The fact still remains that Holder and Reno acted in defiance of the 11th Circuit and conducted an unconstitutional commando raid. Alan Dershowitz and Lawrence Tribe support my position.

Exactly wrong.
11.23.2008 11:04am
Litigator (mail):
Dershowitz: Clinton-Reno Acted 'Lawlessly'



NewsMax.com. Tuesday April 25, 2000; 5:16 PM EDT

Renowned Harvard law professor Alan Dershowitz defended President Clinton against all comers when he was charged with lying in Sexgate. He even testified on Clinton's behalf during the House Judiciary Committee's impeachment hearings. But in a Monday night interview with Fox News Channel's Paula Zahn, he said the Clinton administration acted "lawlessly" when they seized six-year-old Elian Gonzalez from the home of his Miami relatives, calling it "a dangerous day for all Americans." Just hours after Dershowitz made his remarks, constitutional law professor Lawrence Tribe echoed his Harvard colleague, writing in Tuesday's New York Times that Attorney General Janet Reno did not have the legal authority to conduct Saturday's predawn assault on the Gonzalez home.
But it was Dershowitz's comments that should be causing the White House the most agitation, coming as they do from a reliable Clinton ally.

Appearing on Zahn's Fox show, "The Edge," the professor got into a heated debate over Elian with former Arizona Senator Dennis DeConcini.

After Zahn gave him the floor, the onetime Clinton defender minced no words:

DERSHOWITZ: They should have gotten a court order. They should have sought to hold the family in contempt. And if the family refused to comply with the court order, then they could have issued contempt citations and arrested the family. But I have a reason why they didn`t go for a court order. They didn`t go for a court order because they knew they couldn`t get one.

ZAHN: Why?

DERSHOWITZ: And they acted lawlessly they couldn`t get one because the 11th circuit had already turned down their request for a court order, and the family would have argued that giving the child over to the father, at this point, would moot the case in the 11th circuit because, predictably, within a few days, Greg Craig will come out with a hand-scrawled little note from Elian saying he now withdraws his application for asylum. This is established to really confirm the terrible precedent that the administration can act without court approval and break into the home of an American citizen. You know, the picture of Elian smiling is the picture of the day, but the picture of the gun-toting INS agent coming into the house is the — is going to be the precedent, the picture in the history books. It`s a dangerous day for all Americans.

ZAHN: Mr. DeConcini, you have long supported the idea of reuniting the little boy with his father. Was this the way to do it?

DECONCINI : Well, unfortunately, it was the only way to do it. I was a prosecutor before elected to the Senate. I`ve great respect for Mr. Dershowitz. He`s testified before the Judiciary Committee many, many times, and the commissioner also. But being a law enforcement official, you have to enforce the law. The INS and the Justice Department had the right to do what they did. Even the 11th circuit confirmed that in their decision just last week. So there was...

ZAHN: Now, didn`t Mr. Dershowitz say they couldn`t do that?

DECONCINI: No, they could do that. And the law provides that they could do what they did. Now, unfortunately, when you have to enforce the law, whether it was against Orville Faubus in Arkansas or Wallace in — in — in other states, you have to enforce the law, even if you disagree with what the people may believe. I know many of those Cuban-Americans. I worked with them for years, and they`re good people, and they wanted to do what they thought was right. But it is — became a political issue here, and I don`t think anybody disputes that now, that that`s what happened. And Janet Reno had to do what the law gave her permission to do...

DERSHOWITZ: But the big difference...

DECONCINI: ... and that was to reunite that son and that father. And anybody who is a father or a grandfather or a parent can understand the importance of doing that and not letting that boy be exploited any further than he already was.

ZAHN: Well, Alan — Alan is a father. Jump in there.

DERSHOWITZ: I`m a father and a grandfather, but let me tell you, Senator — I have enormous respect for you, too, as you know. But the difference between the Faubus case and the other cases, in all of those cases, they came with a court order. What happened is they went to court. The issue was resolved favorably to the government by a court. The great danger is when the administration, without a court order, can take the law into their own hands.

(CROSSTALK)

DECONCINI: Alan, they had the law on their side.

DERSHOWITZ: They had a statute, but...

DECONCINI: They had a statute that Congress gave them authority to do that. And that`s what they were acting on.

DERSHOWITZ: But the 11th — they went into the 11th circuit and asked specifically...

DECONCINI: And the 11th circuit — but the 11th circuit didn`t say that they could not follow the law.

DERSHOWITZ: They didn`t say...

DECONCINI: As a matter of fact, the 11th circuit said they could.

DERSHOWITZ: No, they didn`t. I read the opinion and...

DECONCINI: Yes, they did.

DERSHOWITZ: No, what the 11th circuit...

DECONCINI: I did, too.

DERSHOWITZ: The 11th circuit simply didn`t...

ZAHN: All right, gentlemen...

DERSHOWITZ: ... refrain from giving...

ZAHN: ... I`m going to have to...

DERSHOWITZ: ... them that.

ZAHN: I`m going to have to play mediator on the other side of this break. If you would, please stand by.

All Rights Reserved © NewsMax.com

http://www.cubanet.org/CNews/y00/apr00/26e3.htm
11.23.2008 11:14am
pintler:

If you can find a study showing a contrary result, done by someone you consider "a disinterested observer," hopefully you'll tell us about it.


In general, on any subject involving firearms policy in modern America, I find anything by Gary Kleck to be the definitive source. In particular, I recommend his 'Point Blank: Guns and Violence in America'. I have a stat degree, and IMHE Kleck is far and away the best source. Fair warning - his writings aren't slanted polemics - they are impeccably researched, well cited, great examples of careful science, and therefore ... dry as toast :-)
11.23.2008 11:16am
jukeboxgrad (mail):
pintler:

Gary Kleck


Thanks for the tip.
11.23.2008 11:53am
jukeboxgrad (mail):
litigator:

Eric Holder denied the use of guns


What he actually said is this:

He was not taken at the point of a gun.


Is that the same thing as completely denying "the use of guns?" Of course not. So yet again, you mislead and distort.

he did not know that there were photos


Holder obviously knew the officers were armed. A few hours after the event, at the moment that Napolitano was playing 'gotcha' with him in an interview, he probably didn't know exactly what the arms were, and whether they were concealed or visible, and whether they were pointing up, down, or sideways. If the officer in the photo had been holding the weapon vertically instead of horizontally, then your photo would be pointless, and you wouldn't be making a fuss about it. Big deal.

Links, shminks


Let's review. You said this:

I linked a video of Holder LYING


I proved that your statement is false, in multiple ways. You linked nothing, and you linked no video, and your source (Blumer) linked no video, and there is no video of "Holder LYING," and you quoted someone (Blumer) who is obviously interested in distorting the truth of what actually happened when Napolitano interviewed Holder.

no matter how many little nits you pick


The fact that Napolitano did not actually show the photo to Holder is not a 'little nit.' The bogus idea that Holder saw the photo is central to Blumer's attempt to discredit Holder. And that's why you and Blumer both suggested that Holder actually saw the photo, even though he didn't.

The liar is you. You obviously have no interest in getting your facts straight, and you have no interest in taking responsibility for spreading misinformation. Only a fool would take you seriously.
11.23.2008 12:15pm
R7 (mail):
Jukeboxgrad said:

Then presumably any government efforts to impose gun control are no cause for concern.


Except for turning people into paper criminals for spurious reasons. So again, how does a gun ban stop gangsta homeys from getting a gun?

Jukeboxgrad said:

You already told us that "gun control is obsolete," which means that anyone can get what they want, so what's the point to even discussing the effect of "a gun ban?" Because it's going to make no difference to anyone, right?


Gun ban discussions are just that, pointless. That means your attempts to justify gun control are just spurious. All they do is turn ordinary gun owners into paper criminals. So again, how does a gun ban stop gangsta homeys from getting guns? Why do you want to turn gun owners (not the yo, yo, yo gangstas) into paper criminals?

Jukeboxgrad said:
Boise has 198,212 people, and 127 rapes. DC has 581,530 people, and 182 rapes. That means the rate in Boise is more than twice as high. What do you make of that? What does it tell us about "demographics?"


Boise 2.7 murders per 100,000, D.C. 29 murders per 100,000. We're talking about death by weapons remember? A husband doesn't need a weapon to commit marital rape.

So.... How does a gun ban stop gangsta homeys from getting a gun?

So Jukeboxgrad, you don't think Holder was lying when he said that the agents didn't take Elian at gunpoint?

Since gun control is pointless (prove to me machineshops and fablabs don't exist today, prove that desktop fabricators are impossible), why would people like jukeboxgrad want to make gun owners paper criminals?
11.23.2008 1:28pm
R7 (mail):
jukeboxgrad said:
The bogus idea that Holder saw the photo is central to Blumer's attempt to discredit Holder. And that's why you and Blumer both suggested that Holder actually saw the photo, even though he didn't.


So Holder is an ignorant fascist who is oblivious to his own actions and that of his own little finks? Yaaaaaaaay!

After all, an ignorant fascist is sooooo much better than a lying fascist. Happy dreams.

How does a gun ban stop gangsta homeys from getting guns? Why do you want to turn gun owners into paper criminals?
11.23.2008 1:50pm
Tony Tutins (mail):

It's not a question of what I "want to drag … into the discussion." It's that data for guns per capita is readily available (for both Switzerland and the US, as well as a bunch of other places). And data for "guns per residence" is not.

Using the data you have, however irrelevant to the poinnt you're trying to make, is the streetlight fallacy. The set-up will be familiar to most readers. Here's the ending:

Finally, after fifteen minutes,the statistician's keen sense of logic got the best of him. He walked across the lot to jukeboxgrad and asked, "Why in the world are you looking for your key under the street light? You lost it back in the far corner of the lot by your car!"

Jukeboxgrad slowly got to his feet and muttered angrily, "I KNOW, BUT THE LIGHT IS MUCH BETTER OVER HERE!!"


I know gun aficionados who have more guns than my wife has handbags, or pairs of shoes. In fact, this shows the irrelevance of items per capita when the issue is households with at least one item. Compare the number of shoes per woman in Metro Manila during the heyday of the Imelda Marcos. The mean number of shoes per Filipina was, say 100, while the median number of pairs of shoes was more like two.
11.23.2008 4:26pm
Oren:

and the family would have argued that giving the child over to the father, at this point, would moot the case in the 11th circuit because, predictably, within a few days, Greg Craig will come out with a hand-scrawled little note from Elian saying he now withdraws his application for asylum.

Elian Gonzales never had an application for asylum in the first place. That is what the magistrate said when he ruled that the Miami relatives had no authority to file one on his behalf, let alone in direct contravention of the stated desires of a living parent.

Now, perhaps you could lobby to change the law so that non-custodial relatives can file for asylum on behalf of underaged children against the wishes of their parents. That was not the law at the time and continues to not be the law.
11.23.2008 4:37pm
Tony Tutins (mail):

Now, perhaps you could lobby to change the law so that non-custodial relatives can file for asylum on behalf of underaged children against the wishes of their parents.

Why did the case of Walter Polovchak turn out completely differently? Son was able to stay in America, against the wishes of his father, instead of returning to Communist country (Ukraine).
11.23.2008 5:28pm
Oren:
Polovchak wasn't a minor when he was granted asylum, but rather dragged out court proceedings for 6 years.
11.23.2008 6:32pm
Public_Defender (mail):
Litigator,
Many people, including Dershowitz and Tribe, spoke well before the government had set forth the basis for extracting Elian from that mob. See the INS letter I posted above. If you can refute that, fine, but posting comments made by ignorant people immediately after the crisis proves nothing.

Dershowitz's comments prove only that he doesn't think enough before he opens his mouth.
11.23.2008 7:04pm
Kevin P. (mail):
The great strawman here is JBG's focusing on "gun deaths" and presenting that statistic as the definitive representation of homicide and crime rates. This is a common trick of gun control advocates. In reality, homicides and violent death in any country can be broken down into the following categories:

1) Total homicide (gun and non-gun)

2) Homicide by gun
2a) Suicide by gun
2b) Justifiable homicide (self-defense) by gun
2c) Murder or manslaughter by gun

3) Homicide by non-gun
3a) Suicide by non-gun
3b) Justifiable homicide (self-defense) by non-gun
3c) Murder or manslaughter by non-gun

Other violent crimes not amounting to death can also be broken down in a similar manner.

Sensible crime policy should focus on the items (2c) and (3c). Instead, gun control advocates prefer to cherry pick item (2) instead, since that gives them the scariest numbers, and helps to show the US in a bad light. You will note that they ignore item (3) altogether. In reality, there are many countries where non-gun homicides outnumber gun homicides. In JBG's comparison, they will be shown in a favorable light compared to the US. This is very much intentional. It is doubtful if the victims felt any better that they were bludgeoned, stabbed or strangled to death.

So a complete understanding of guns and crime has to include non-gun crime as well, and preferably, not just homicide, but all violent crime. When you actually do this, the US disappears as an outlier and actually is shown to be a moderately safe country. It still leads in homicide but other violent crime rates are quite comparable to the rest of the modern world. In the US, nearly 70% of homicide victims happen to fall into one or more of these groups: They have their own history of criminal behavior; they are involved in using or trading illegal drugs, or they associate with the previous persons. While nobody should lose their life just because they live on the edge, if you avoid these behaviors, you will reduce your risk of being murdered by 70%.

Suicide is something that will exist regardless of the instrument used to commit it, and is usually the end result of years of depression, other mental illness, bad health, financial problems and other chronic circumstances that make life seem hopeless. Nobody commits suicide on a whim just because they found a gun. They had already made some kind of decision to end their life. The US has a moderately low suicide rate compared to many other countries, despite the widespread presence of guns.
11.23.2008 8:36pm
Kevin P. (mail):
Note that I don't expect to persuade Jukeboxgrad of anything. JBG is an extreme liberal partisan who is always right. He should really start his own blog and be among true believers.

However, the rest of the readership should be aware of how a case can be presented in a one-sided manner while pretending that another side doesn't exist at all. This is very common with gun control advocates and MSM news coverage of gun-related issues: focus on cherry-picked stories of carnage, ignore that the other side even exists, and above all, systematically ignore the fact that lawful gun ownership does save lives, prevent crimes, and benefit society in general.
11.23.2008 8:43pm
mandee (mail):
The constitution of the United States of America states that the citizenry be afforded the right to bear arms and the Supreme Court upheld that amendment. Why shouldn’t hard working people be able to protect themselves? Protection isn’t for the elite only.
11.23.2008 10:00pm
jukeboxgrad (mail):
r7:

you don't think Holder was lying when he said that the agents didn't take Elian at gunpoint?


I see you have no comprehension of the difference between a lie and a mistake. And if so, then I guess you're prepared to admit that Bush "was lying" when he said Saddam had WMD.

So Holder is an ignorant fascist who is oblivious to his own actions and that of his own little finks?


No. Holder is someone who didn't know if the weapons were being held horizontally or vertically. Because that simple difference makes all the difference in the world, with regard to the emotional impact of the photo, and with regard to the meaning of the words "point of a gun." And the tantrum you're having relies on precisely that photo, and precisely those words. It also relies on pretending that Napolitano showed Holder the photo, even though Napolitano didn't show Holder the photo.

By the way, are guys who sign up to do dangerous work for our government "little finks" all the time, or just when they're following orders that you don't like?
11.23.2008 11:06pm
jukeboxgrad (mail):
tutins:

this shows the irrelevance of items per capita when the issue is households with at least one item


You haven't shown "the irrelevance of items per capita." You've explained why you think a better measurement would be items per household. Trouble is, no one has presented any data with regard to items per household. Using data that's available, even though it's imperfect, is still better than using data that doesn't exist at all.

Claiming that B is superior to A is definitely not the same thing as proving that A is "irrelevant." Especially if you can get your hands on A, but you can't get your hands on B.

Criticizing the data I presented doesn't get you very far unless you can come up with something better. You haven't. You're telling us about something you think would be better, if you could get your hands on it. So please let us know when you manage to do that.

By the way, items per capita is a very good proxy for items per household, unless we think that household size in Switzerland is radically different than household size in the US. Can you think of any reason why that would be so? I can't.
11.23.2008 11:06pm
jukeboxgrad (mail):
kevin:

He should really start his own blog


What makes you think I don't have my own blog? Because I don't pimp it here?
11.23.2008 11:06pm
Oren:

The constitution of the United States of America states that the citizenry be afforded the right to bear arms and the Supreme Court upheld that amendment. Why shouldn’t hard working people be able to protect themselves? Protection isn’t for the elite only.

Yup, but do we really have to label anyone that doesn't believe the exact same thing as "haters of liberty". Hmm, actually, it depends. If they believe in fewer gun rights than we do, they are liberty-haters. If they believe in greater gun rights (RPGs, SAMs), they are gun-nuts.
11.23.2008 11:21pm
R7 (mail):
Jukeboxgrad said:
No. Holder is someone who didn't know if the weapons were being held horizontally or vertically. Because that simple difference makes all the difference in the world, with regard to the emotional impact of the photo, and with regard to the meaning of the words "point of a gun." And the tantrum you're having relies on precisely that photo, and precisely those words. It also relies on pretending that Napolitano showed Holder the photo, even though Napolitano didn't show Holder the photo.


By the way, are guys who sign up to do dangerous work for our government "little finks" all the time, or just when they're following orders that you don't like?


I am sure that Adolph Eichmann's finks were signing up for "dangerous work" as well. Maybe you shouldn't try to subjugate people's individual rights, it's dangerous.

jukeboxgrad said:
o. Holder is someone who didn't know if the weapons were being held horizontally or vertically. Because that simple difference makes all the difference in the world, with regard to the emotional impact of the photo, and with regard to the meaning of the words "point of a gun." And the tantrum you're having relies on precisely that photo, and precisely those words. It also relies on pretending that Napolitano showed Holder the photo, even though Napolitano didn't show Holder the photo.


Aaaagh! My eyes are LIARS! I guess that was a dastardly photoshop then!

You still haven't answered the questions:

Since gun control is pointless (prove to me machineshops and fablabs don't exist today), why would people like jukeboxgrad want to make gun owners paper criminals?
11.23.2008 11:52pm
R7 (mail):
How would gun bans stop yo yo yo gangsta homeys from getting guns, jukeboxgrad?
11.23.2008 11:55pm
jukeboxgrad (mail):
Here are some interesting things we now know about r7:

- In deference to Godwin, he thinks that people who work for the Border Patrol are comparable to "Eichmann's finks"
- He doesn't understand the difference between a lie and a mistake.
- He likes talking about "yo yo yo gangsta homeys."

Thanks for that helpful information.
11.24.2008 12:27am
JM Hanes:
jukeboxgrad:

"But the policy issues are nevertheless comparable. We should and would object to excessive vehicle regulation even though it's not a constitutional issue."

If there's a constitutional constraint on the one hand and not the other, the policy issues are not comparable. Comparing attitudes does nothing to clarify the question.

"You're implying that guns, because they are 'constitutionally protected,' are not 'available for regulation.' Really?"

No, not really. I'm implying they are not available for unfettered regulation. I take your point on the definition of arms, however.

"Yes, Mexico has a particular problem with gun violence, where a relatively small number of guns are doing a large amount of shooting."

Should we assume that you have both the data establishing that case in Mexico, and the data establishing that such patterns do not exist in the U.S.? The distribution of gun ownership would seem to be at least as salient as per capita generalizations, and perhaps dispositive. Among other demographic groups, I don't know any hunters, for example, who do not own multiple guns, and I suspect the U.S. has more hunters per capita, as well as more guns, than Switzerland, don't you? Distribution & usage data alone could alter the picture you're painting beyond recognition.

"Using data that's available, even though it's imperfect, is still better than using data that doesn't exist at all."

Are you really sure you want to stick by this assertion? While drawing conclusions from non-existent data is generally frowned upon, just listing even the most dangerously erroneous conclusions based on imperfect data would be a daunting project. I would also note that despite tipping your hat to the correlation/causation fallacy, you don't hesitate to conflate the two.

"horizontally or vertically"

LOL! And the definition of is is?
11.24.2008 2:33am
cboldt (mail):
Tony Tutins: --irrelevance of items per capita when the issue is households with at least one item. --
jokeboxgrad: --You've explained why you think a better measurement would be items per household --
11.24.2008 6:20am
cboldt (mail):
International Homicide Comparisons includes "% Households with guns" for some countries.
.
It appears some lefty partisans are anxious about a Holder nomination for reasons unrelated to Holder's choice to facilitate gun grabbing.
11.24.2008 6:33am
Public_Defender (mail):

Here are some interesting things we now know about r7:

- In deference to Godwin, he thinks that people who work for the Border Patrol are comparable to "Eichmann's finks" . . . .

One of Holder's strongest cards is the wackiness of some of his attackers.
11.24.2008 6:58am
Enki:
been gone a few days, but I'll attempt to be clearer than I have apparently been, bearing in mind that I am mindful that I may be wrong about some of these things. that is one of the wonders of public debate.

I went back and read some of the old case law and yes, the notion of "collective rights" is a relatively modern view that started, it appears, in the period just before Miller was decided. Miller itself, however, does not answer the collective/individual question. as someone (with apologies to whom in particular, I don't remember everyone who commented) mentioned earlier, the 2A is more about limiting what the government may do vis a vis restricting ownership than regulating it in particular. Miller basically said that the government can ban sawed off shotguns, that they are not the kinds of guns protected by the 2A. not much more from that case.

as far as the founding period and the relevance of state constitutional guarantees, I clearly did not articulate my point well at all there, so I apologize. At the time it was written, again as was pointed out above by someone more articulate than I, the 2A was meant to restrict the power of congress. but the 2A also did something else - it declared, unambiguously, the importance of state militias, and to that end only limited congress' power to restrict gun ownership because that restriction may threaten liberty by neutering state militias. in response, state governments - most of them (and it holds true today) - set forth broad rights to bear arms (perhaps closing the loop opened by the 2A). it's not circular, at least not from a theoretical point of view, it's simply a question of scope. the 2A has a limited scope BECAUSE the power was to be granted to the states. to that end, the scope of the 2A is extremely narrow (restricting congress) and that is precisely what the founders wanted. my only point is that gun regulation is really a matter of state law.

PS taking the view that the other rights in the BOR should be viewed collectively is a bad idea. I am of the opposite opinion - that they all (perhaps with the exception of the 9th) should be viewed as individual rights. the 2A is different because of its posture - it recognizes a state right as well as an individual right. the prefatory clause makes incorporation anachronistic, because it's not necessary to incorporate. the 2A protects both states and individuals from federal intrusion.

also, not sure who mentioned it, but guerrilla forces are not the same as well regulated state militias. that there are no state militias anymore, in the sense contemplated by the founders, should be axiomatic at this point. this is, in my opinion, the most important reason why the 2A should be viewed as protecting an individual right to keep and bear arms. without that view, the amendment dies. the collective view, because of its necessary tie to a state militia, while arguably closer to what the founders envisioned (emphasis on "arguably"), no longer has any relevance. that is why I think the outcome of Heller is the correct one.
11.24.2008 10:44am
cboldt (mail):
-- Miller basically said that the government can ban sawed off shotguns, that they are not the kinds of guns protected by the 2A. not much more from that case. --
.
No. It didn't do that. Miller says that the indictment could be struck down if a shotgun with a barrel length less than 18 inches "has some reasonable relationship to the preservation or efficiency of a well regulated militia." If the record had contained evidence that the weapon in question was or had been used by the military, the indictment would have remained quashed, and the section of the NFA that requires payment of a fee in order to possess a short barrel shot gun would have been struck down as an unconstitutional infringement.
.
Separate from that correction, there is much confusion (and you are just one of many in this regard) about what constitutes "a militia." The popular conception is that "the militia" is only that part of the population that becomes organized and armed under a sort of military purpose. But "the militia" also includes able-bodied citizens who are not "in service."
.
The word "militia," like the phrase "habeas corpus," is commonly mistaken to imply much more than it actually does.
11.24.2008 11:54am
Enki:
I know what the 2nd militia act says - able bodied men between the ages of 18 and, I think, 45. but it's up to the states to regulate them, that's the whole point - that the militias are NOT regulated at all by the feds. so if a state chooses NOT to regulate its militia, well then there is no 'well regulated militia' in that state. I'm not sure how many states currently regulate militias, but I can think of two that still have statutory authority - georgia and kansas. I know Kansas still has an active state militia, and if I remember correctly Georgia's militia is considered "sedentary". there may be more states than that, those are the two that I am aware of. I also know that some states have authorized local bans on weapons (the case, I believe, is village of morton grove, and I think it's 7th circuit but I'm not in a great spot to double check). again, these are state laws that are not subject to 2A analysis. still, even active militias wouldn't serve the same function they did 200 years ago.

you're right on Miller, it's the 'Reasonable relationship' test that's important in that case. still, Miller did not resolve the collective/individual question, and many collective rights folks erroneously cite that case as a collective rights case. but it isn't.

thing is, as much as I enjoy the discussion, the 2A isn't exactly my biggest worry. it limits congress' power and no matter who is prez, there won't be some massive rounding up of weapons. I would be far more concerned with how our justice dept approaches the 4th amendment - after all, there are searches/seizures daily, and considering how the jurisprudence has evolved away from protecting against such intrusions, i'd be far more concerned about that. the 2A is far more theoretical than practical, despite the fact that you may have just spit your coffee out on your keyboard after reading that. i realize it's important to many people, but the so-called 'threats' to its existence are theoretical and, IMHO, unfounded. One would think Heller would have proven that.
11.24.2008 3:02pm
R7 (mail):
Jukeboxgrad said:

- In deference to Godwin, he thinks that people who work for the Border Patrol are comparable to "Eichmann's finks"

If it walks like a duck..........

- He likes talking about "yo yo yo gangsta homeys."


Wouldn't the primary generators of street violence in the U.S. be relevant to this discussion?

Looks like jukeboxgrad is refusing to answer these rather easy questions:

How would a gun ban stop a gangsta homey from getting a gun?

Since gun control is pointless (prove to me machineshops and fablabs don't exist today), why would people like jukeboxgrad want to make ordinary gun owners paper criminals?
11.24.2008 4:08pm
R7 (mail):
Seems to me jukeboxgrad doesn't see anything wrong with this photo. Since gun control is pointless, what sort of motivation would drive people like jukeboxgrad to go after ordinary gun owners?
11.24.2008 4:15pm
cboldt (mail):
-- the 2A isn't exactly my biggest worry. it limits congress' power and no matter who is prez, there won't be some massive rounding up of weapons. --
.
The 4A isn't exactly my biggest worry. It limits congress' power and no matter who is prez, there won't be some massive searches and/or seizures.
11.24.2008 4:30pm
R7 (mail):
Oh look, it looks like jukeboxgrad tried to make a convoluted defense of an Alaskan state trooper that tasered a little kid.

This seems to shed some light on his attempts to defend all sorts of state abuse. So, what would be his motivation to go after ordinary gun owners, hmmm? It's already been determined that gun control is pointless.
11.24.2008 5:17pm
JM Hanes:
Enki:

"I would be far more concerned with how our justice dept approaches the 4th amendment - after all, there are searches/seizures daily, and considering how the jurisprudence has evolved away from protecting against such intrusions, i'd be far more concerned about that."

I emphatically agree, although I think that "persons, houses, papers, and effects" appear to be more and more narrowly defined under pressure from what looks like every 21st century quarter. When there's general concensus that our collective defense requires the preemption of potentially cataclysmic attack, not simply ex post facto law enforcement, the definition of what is reasonable and what is not changes dramatically. Enforcement agencies are not the only entities which benefit from the resulting elasticity at the expense of individual protections.

While amending the U.S. Constitution is perhaps too fraught an endeavor. I would like to see a push for comprehensive national legislation, and for amending state constitutions to include broad restraints on violations of privacy. The need for explicit recognition of a right to privacy seems increasingly compelling, not just in terms of law enforcement searches or the physical confines of a domicile, but in regard to both official and commercial intrusions at every level from computer hard drives, to communications to data collection, tracking and sharing.

Given the current likelihood of more appointees to the Supreme Court who are willing to consider "evolving" attitudes towards things like capital punishment, such state centered initiatives could utlimately prove useful in a federal context regardless of the national legislative status quo -- which to date consists mostly of piecemeal protections which are more temporary impediment than substantive obstacle to well organized special interests (think Digital Rights Management, for example).

In what strikes me as interesting, if not telling, fashion, such initiatives would certainly highlight the ideological tension between social conservatives' disdain for the infamous "penumbra of privacy" (as it relates not just to abortion issues but to reproductive issues from stem cells to sex education) and poltical conservatives' commitment to limiting the purview of government and empowering the individual. Privacy issues are also not unrelated to the keeping and bearing of arms, it seems to me.
11.24.2008 6:14pm
cboldt (mail):
-- When there's general concensus that our collective defense requires the preemption of potentially cataclysmic attack, not simply ex post facto law enforcement, the definition of what is reasonable and what is not changes dramatically. ... Privacy issues are also not unrelated to the keeping and bearing of arms, it seems to me. --
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Those notions roll together, and it won't take but a few "DC Sniper," mall, or school incidents in order to transform the public's idea of "reasonable" privacy against the government, as it pertains to the possession of firearms, to crystallize at NONE. Registration is required now, for certain types of infantry arms, and there aren't many steps before registration will be "reasonable" for any and all devices capable of firing a projectile.

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At some point, the public will be talked into not trusting itself with weapons of deadly force. The notion is today seen as uncivilized, quaint, or an American anachronism that should be disposed of, post haste. Under Heller, there is no right to bear arms outside of the home, and the right to keep is allowed only if one meets the edicts of the controlling government agencies.
11.24.2008 6:33pm
R7 (mail):
cboldt said:
Those notions roll together, and it won't take but a few "DC Sniper," mall, or school incidents in order to transform the public's idea of "reasonable" privacy against the government, as it pertains to the possession of firearms, to crystallize at NONE. Registration is required now, for certain types of infantry arms, and there aren't many steps before registration will be "reasonable" for any and all devices capable of firing a projectile.


Nearly all such shootings occurred in "gun free" zones. The solution is either to allow concealed carry permit holders to carry in those places or hold such "gun free" zones liable to lawsuits if the zone's security arrangements are negligent.


-- When there's general concensus that our collective defense requires the preemption of potentially cataclysmic attack, not simply ex post facto law enforcement, the definition of what is reasonable and what is not changes dramatically. ... Privacy issues are also not unrelated to the keeping and bearing of arms, it seems to me. --


If such cataclysmic attacks were possible (you're assuming WMD right?) by small organizations, the Nation-state would cease to exist. The small organizations would effectively become sovereign micro-states. Talking about what policy a nation-state should take by then would be irrelevant. This was already discussed earlier on this thread.
11.24.2008 8:02pm
cboldt (mail):
-- you're assuming WMD right? --
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I was quoting JM Haynes, and in my follow-on, i referred specifically to non-WMD "cataclysms" of sniper, mall and school shootings. So, no, I wasn't assuming WMD.
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I also wasn't making a value judgement or efficacy prediction. I was speculating as to the nature of government encroachment, spurred in part by public outcry and public fear of guns. I think our society is weak, and ripe for the pickins.
11.24.2008 8:14pm
R7 (mail):
cboldt said:
I was quoting JM Haynes, and in my follow-on, i referred specifically to non-WMD "cataclysms" of sniper, mall and school shootings.


They are hardly cataclysms, an armed bystander or two could've stopped them in their tracks (note the Colorado Church shooting, it could of been hundreds of people dead if it weren't for an armed bystander). Such so-called cataclysms are possible mainly due to "gun free" zones with inadequate security. Some of the morons in the power-structure even establish "gun free" zones with no security thinking that the sign itself will be obeyed by crooks. I guess you were stating a case of a regulation creating a problem that breeds more regulation that creates more problems in need of even more regulations!
11.24.2008 10:54pm
jukeboxgrad (mail):
cboldt:

Tony Tutins: --irrelevance of items per capita when the issue is households with at least one item. --
jokeboxgrad: --You've explained why you think a better measurement would be items per household --


You seem to be trying to say that I'm idiotically failing to understand that tutins is talking about "households with at least one item." And that for some arbitrary reason I'm talking, instead, about "items per household." As if it was my idea to define the data in those terms. Trouble is, it wasn't. It was tutins' idea. You apparently didn't notice that he started this particular tangent by saying this:

The statistic under consideration is guns per residence. If you want to drag guns per capita into the discussion, you're going to have to compare number of people per residence, as well as national gun-buying habits.


So it's not my fault that he can't make up his mind regarding whether he wants to talk about "guns per residence" or if he wants to talk about "households with at least one item." Because both those formulations came from him, not me.
11.25.2008 4:40am
jukeboxgrad (mail):
hanes:

And the definition of is is?


You're suggesting that the position of the gun doesn't matter. Really? The famous photo is here. That photo has already been referenced in this thread about five times. Some people seem to think it's quite useful and important. R7 has gotten to the point of citing it in almost every comment.

Imagine another photo, with the weapon pointing at the floor, instead of at the child. Are you claiming the photo would still have the same emotional impact, and the same political utility? Really?
11.25.2008 5:00am
jukeboxgrad (mail):
Let's trace that back a little further. This little subthread really started when juris_imprudent said this:

Switzerland has guns in more homes then the U.S.


I challenged that statement. Then tutins chimed in, defending juris_imprudent. That's when tutins dragged in the idea of "guns per residence."

Anyway, thanks to a link provided by cboldt, we can finally answer the original question. What we see here is that in the US, % households with guns is 39%. In Switzerland, the figure is 27.2. So the statement made by juris_imprudent is false. Presumably juris_imprudent will now apologize for making a false statement, and tutins will apologize for suggesting that I was wrong to challenge the statement.
11.25.2008 5:13am
cboldt (mail):
-- You seem to be trying to say that I'm idiotically failing to understand that tutins is talking about "households with at least one item." --
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"Idiot" is a charitable takeaway, which is not what I intended.
11.25.2008 6:51am
cboldt (mail):
-- I guess you were stating a case of a regulation creating a problem that breeds more regulation that creates more problems in need of even more regulations! --
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In combination with a gun-phobic gullible weak public and an elite that intends to effectively disarm the public via force of unconstitutional law. And when that runs out, see amendment to the constitution. Large swaths of the constitution have already been rendered meaningless by various combinations of legislation, enforcement, and court pronouncements. I don't see any sign of reversal to that trend. In particular, I don't take Heller as a sign of reversal to that trend.
11.25.2008 7:01am
jukeboxgrad (mail):
cboldt:

"Idiot" is a charitable takeaway, which is not what I intended.


My "takeaway" from your remark is that you lack the integrity to admit that I caught you making a silly mistake.
11.25.2008 8:40am
jukeboxgrad (mail):
And that you prefer to engage in misdirection by following one cheap shot with another cheap shot.
11.25.2008 8:45am
cboldt (mail):
-- My "takeaway" from your remark is that you lack the integrity to admit that I caught you making a silly mistake. --
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Your takeaway, as with most of your "analysis" and debate, is dishonest. Your charge against me is just another in a long line of jukeboxgrad-perpetrated falsehoods.
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You wouldn't know integrity if it bit you on the ass. But you are one of the most entertaining and persistent liars on the internet.
11.25.2008 9:49am
cboldt (mail):
I'll spell it out, on the unlikely possibility that you are an idiot, in addition to being a clever and dishonest hack.
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When I put the two quotes back to back, Tutins' "households with at least one item" and your "items per household," I was not intimating that you were an idiot. I was intimating that you were obfuscating deliberately, choosing the characterization that best suited your frame of reference by deliberately ignoring the frame of reference that Tutins clearly expressed. [If jukeboxgrad wants to drag guns per capita into the discussion ... but irrelevance of items per capita when the issue is households with at least one item.]
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Further, I did not intend "jukeboxgrad is an idiot" as the takeaway. Since what I am saying is an expression of my intention, it is impossible for it to be a "mistake," let alone a silly one.
11.25.2008 10:05am
Enki:
CBoldt:
The 4A isn't exactly my biggest worry. It limits congress' power and no matter who is prez, there won't be some massive searches and/or seizures.


ahh another (not so) clever glib remark that says nothing.

but here's the thing. every time the police stop someone (let alone arrest him/her), the 4th amendment comes into play. think about that. if a cop stops you and asks you for ID, you are subject to a seizure that must be reasonable. now many times, the stop is probably reasonable, but the sheer volume of unreasonable searches and seizures absolutely dwarfs any threat to your precious right to tote your glock 9. it's not even close. and considering the trend over the last 30-odd years making the warrant requirement the exception rather than the rule, i'd say your glib remark misses the mark entirely. there ARE masses and masses of searches and seizures, every single day. in my line of work, i spend more time buried in the 4th amendment than anywhere else (crim defense). in fact i'm working on a motion right now dealing with a pretty heinous act of police overreaching.

if there is any threat to liberty, it's the power of the police to invade our 'persons, homes, papers, and effects', and not some abstract paranoia about your right to possess your hunting rifle. the 2A is interesting, and i'd even say it's important, but is it pressing? hardly. what the cops do daily to many of us is far more prescient, and as far as this nations "top cop" is concerned, a far more important question to ask him, IMHO.
11.25.2008 10:35am
JM Hanes:
R7:

"If such cataclysmic attacks were possible (you're assuming WMD right?) by small organizations, the Nation-state would cease to exist. The small organizations would effectively become sovereign micro-states."

Only if you're using the term "state" in some peculiarly metaphorical way. Whether I was referring to a suitcase nuke or a plane aimed at a building is beside the point. What's important is that in reaction to such perceived threats we have radically altered our mandate to law enforcement. Preventing crimminal acts is an entirely different imperative than identifying criminals and bringing them to justice ex post facto, and it requires a very different set of tools and authorities.

Crimminalizing intentions, the non plus ultra of prevention, is a vast slippery slope. Ferreting out what are essentially thought crimes virtually requires a whole range of preemptive searches. You can't connect the dots required to establish putatuve, prospective intent unless you've been collecting potentially useful or potentially connected dots of every ilk. Once granted the necessarily invasive powers, any idea that they will be used in pursuit of high crimes alone, or that the dots/data acquired can be effectively fenced off defies both experience and imagination. Even if the pre-9/11 wall between agencies were not now the stuff of infamy, it could not have survived our advancing technological interdependence for long.

Prevention is the battlefield where security interests and civil liberties collide, and absent the clarity of any explicit right to privacy, civil liberties will inevitably lose. I would also argue that this is the fundamental context in which we should be examining the question of whether terrorist acts should be defined as crimes, per se, or acts of war. I fear we will pay dearly for having turned that matter into a polticial football. It seems to me that the proponents of treating terrorism as a "law enforcement" issue are, ironically, inviting the very depredations on civil liberties that they believe they are defending.
11.25.2008 11:21am
cboldt (mail):
-- ... not some abstract paranoia about your right to possess your hunting rifle. the 2A is interesting, and i'd even say it's important, but is it pressing? hardly. --

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What separates paranoid abstraction from legitimate concern is government overreach. You don't see government overreach as against the 2nd, but you do as to the 4th. Bully for you. Maybe I have a legitimate concern that a violation of the 4th will be used to bootstrap a violation of the 2nd.

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I respect your focus being on the 4th, and disrespect your low level of concern about the 2nd. Your focus is certainly understandable in light of your work.
11.25.2008 12:11pm
Enki:
haha. the motion i'm currently working on, if we win (unlikely given the climate), would be to keep the gun evidence out. still, 922 and 924 and some provisions of the tax code dealing with registration have all been affirmed (mostly on commerce or tax/spend grounds, but also on the occasional 2a challenge) pretty much universally (well since congress fixed the GFSZA after lopez). i suppose that my only answer to your concern is that you have a clear friend in the courts, and if congress does overreach in some area, the courts have done what they do to the benefit of gun owners (again, isn't Heller a pretty good indicator of this? and even before that, lopez?).

that's simply not the case with the 4a, and despite some odd recent cases, even the 9th circuit is pretty permissive to the cops. even if your concern about the 4a as a bootstrap for restricting 2a rights were founded - and considering most people think its ok to prohibit felons from possessing weapons, by far the provision used the most to restrict possession, that position is questionable - the jurisprudential problem is with the 4a, not with the 2a. in other words, the 2a has some nice favorable RECENT case law, while the 4a is in the exact opposite situation.
11.25.2008 12:52pm
cboldt (mail):
-- i suppose that my only answer to your concern is that you have a clear friend in the courts, and if congress does overreach in some area, the courts have done what they do to the benefit of gun owners (again, isn't Heller a pretty good indicator of this? and even before that, lopez?) --

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I think the courts (and Congress) are about as supportive of the 2nd amendment, as they are of supportive of the 4th. The Lopez decision is rather a hollow "victory," in light of the subsequent commerce-clause adjustment by the Congress to get around the SCOTUS decision. So, I guess we both have "a clear friend in the courts," in case Congress overreaches in some area.

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Further, in light of how the Courts have misconstrued Miller over the years, I have no illusion as to the level of honesty of our government when it comes to respecting/supporting the rights of the people. Heller is not a victory for the 2nd, any more than Miller was.
11.25.2008 2:31pm
Oren:

Seems to me jukeboxgrad doesn't see anything wrong with this photo. Since gun control is pointless, what sort of motivation would drive people like jukeboxgrad to go after ordinary gun owners?

Nobody interested in law and order sees anything wrong with government enforcement of court orders (last I checked, still not optional). Subpoena placeo quod libet?
11.25.2008 3:50pm
Oren:
Actually, a better latin translation would be "subpoena a bene placito" (subpoena at your pleasure).
11.25.2008 3:50pm
Enki:
you know, I've been thinking about this discussion a bit (in between crafting something far more real world vis a vis government overreaching), and I'm wondering what exactly congress has done that has you so up in arms. [with the caveat that if you live in DC you have a perfectly legitimate beef].

Gun regulation is largely a matter of state law. the feds prohibit minors and felons from possession guns (garnering very little opposition even from NRA types), prohibit all of us (minus the grandfathered owners) from possessing machine guns (a little more opposition, but still not much), and all of us from possessing guns within 1000 feet of a school (probably the most opposition). that's it. that's all the possession restrictions. in addition, the feds require registration in a national database, and require us to register and pay taxes on "prohibited weapons and explosive devices".

those are far less restrictive than most state laws (unless you live in georgia or virgnina), which interestingly enough, I don't hear a lot of complaints about (except from new yorkers). of course, these same federalist society folks find themselves in a bit of a theoretical bind there - gun rights or states rights? hmmmmm.

in contrast, there are countless congressional and executive acts, state and federal, that impact the 4th amendment on a daily basis. i'd say it's 70 or 80 percent of the work that I do, and that's just one person. there are several 4th amendment cases every term at the SCOTUS, and one 2nd amendment case every 70 or so years. to say one is at least litigated more is rather obvious (and may not truly reflect the state of things, i do realize that). but there's a practical reason for that too - because it impacts more lives, more often. it's more prescient for all of us.

the threats against our right to keep and bear arms are more theoretical than real, and far more likely to come from the state government than the feds. the threats against our right to be secure against unreasonable searches and seizures are very real and in fact happen every day to countless people. sure, it's important to protect all rights, but RE Holder, well the 4th matters whereas the 2nd is smoke/mirrors.
11.25.2008 4:35pm