Friday, May 23, 2003
The Blog that Ate Poughkeepsie, or:
posted by Kevin |
We Now Get to the Meat of the Debate
"So, the right to bear arms originates with the English Bill of Rights, which states that the people (let's ignore the whole Protestant-only thing) "may have arms for their defence suitable to their conditions, and as allowed by law." Those four words are, rather important, because they call into question the idea that the pre-existing right to bear arms was an absolute one, as you seem to suggest.
I wasn't the one to suggest it - Tucker was. The quotation in the section of Sir William Blackstone's book was entitled "Of the Absolute Rights of Individuals." I grant that the right to arms wasn't "absolute" because it was obviously restricted by the limitations "suitable to their condition, and as allowed by law," but that wasn't the only right listed, either. He also said the right to arms "is indeed a public allowance, under due restrictions, the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. Read that carefully. It makes no distinction between government or criminal "violence of oppression." What Blackstone has said here is that the right to arms is a public allowance. The natural right of resistance and self-defense is the absolute right. The right to arms, to the British, was auxiliary to it, and dependent on British law to maintain it.
What Tucker said was that the right to arms was ...the true palladium of liberty. Not the well-regulated militia. He reiterates Blackstone's statement that The right of self defence is the first law of nature, and goes on to explain that governments throughout history have minimized that right: "...in most governments it has been the study of rulers to confine this right within the narrowest limits possible." Then he goes on to describe how the British, through the use of the clauses "suitable to their condition and degree" and "as allowed by law" had done just that. (And I submit to you that the British government has gone a lot further today. Not only does less than "one man in five hundred" have a gun for self-defense, self-defense is, for all intents and purposes, illegal. Self-defense with a gun absolutely is. Defend yourself, go to jail for assault. You said it yourself. Defend yourself with a gun, go away for a long, long time.)
Thus the American take on it was that right to arms was what was enumerated, not the right to self-defense. If you have the right to arms, the right of self-defense is secure. Without the right to arms, it is not, because that leaves the exclusive use of force in the hands of government and criminals. (But I repeat myself.) This is the critical difference in our world views.
You continue: "It feels to me, like you're arguing against limiting the right to bear arms, whereas, in fact, you're actually artificially extending the right beyond limitations which were originally implied." Because I am arguing against limiting the right to arms. The extension isn't artificial. Limits weren't implied in the English Bill of Rights, they were a given. It's in the Second Amendment those limits were removed - with the intent of preventing that right from being stripped from us as it had been so easily stripped from the British people. (Don't go running off here about "nuclear weapons in your garage," and "RPG's in your basement" and so forth. I'll get to that, I promise.)
You continue: "...it appears to me that, when the Second Amendment was written, the arms possessed by individuals were basically the same as used by armies at the time. In my mind, this again ties in with the whole concept of the Second Amendment having been primarily designed to ensure the continued existence of militia." Well, it would. That's your mindset. But note that I said that Americans also had weapons in some ways superior to those used by the armies of the time. They weren't told "You can't have those. They're not protected by the Second Amendment." They got used, too. Even though they were unsuitable for use in standard military formation, they were quite suitable for "unconventional warfare."
(In answer to your tangential question, America went just over 70 years before we had a real rebellion. The Revolutionary War ended in 1783, and the Constitution was ratified in 1789. The Civil War began in 1861. That one was pretty bad, but it ended pretty much as Jefferson suggested such rebellions should. We haven't had another one. Yet.)
As to the question of equating "rule of law" and "government," you are correct. I overstepped myself. I was in such a hurry to make my "government is force" point that I let my
mouth fingers get ahead of my brain. The Rule of Law is equivalent to government only when the government bothers to follow the law. Monarchies have been notorious for not doing so unless made to by force of arms. Thus the Magna Carta and the English Bill of Rights. (ahem!) The normal squalid dictatorships don't even bother. As one Louis XIV said, "L'etat,c'est moi" - "I am the State." He made the rules, he could change them at a whim. The same held true for Saddam Hussein.
The United States was established with the ideal that it would be a government of the Rule of Law. As Benjamin Franklin put it upon being asked what form of government the recently concluded Constitutional Convention had wrought, "A Republic, if you can keep it." You have to remember at all times, government is made of and run by humans. Henry Louis Mencken wrote:
"The government consists of a gang of men exactly like you and me. They have, taking one with another, no special talent for the business of government; they have only a talent for getting and holding office. Their principal device to that end is to search out groups who pant and pine for something they can't get and to promise to give it to them. Nine times out of ten that promise is worth nothing. The tenth time is made good by looting A to satisfy B. In other words, government is a broker in pillage, and every election is sort of an advance auction sale of stolen goods."
That is a VERY American attitude. People call America a democracy all the time. Even our government officials do, but it was never supposed to be a democracy. It's supposed to be a representative republic, and those representatives were to be chosen from a small and self-selecting pool. The system of elections wasn't intended to be a "one man, one vote" democracy, but a meritocracy where the people making and enforcing the rules had a talent for government. And it worked very, very well for a while. Honestly, the system as it was established has worked well for over 200 years, being that it was constructed in the full knowledge that power both corrupts and attracts the corrupt. Unfortunately, the accumulated crap produced by those whom Mencken described (and he wrote that probably in the early 1930's) is apparently catching up with us. This is nowhere more apparent (if you study this stuff) than in the battle for the right to arms. It has become a litmus test for freedom.
Let me explain. (And pardon me - this is going to take a while, but it directly addresses your question and is the heart of the whole right-to-arms thing.)
You ask: "...let's say a liberal government came to power and wanted to ban gun ownership. It would not be able to, because of the Second Amendment, right?"
That's the question, all right.
Here's how the whole Rule of Law thing is supposed to work in our Representative Republic. There's a set of rules on how the government itself is supposed to be established - division of powers, rules for electing officials, appointing officials, so on and so forth. There's a list of things that the government is prohibited from screwing with, i.e., the Bill of Rights. There's a set of rules laid out in the Constitution for modifying the Constitution as times and conditions change. That modification process is made intentionally difficult, because the need must be great and there must be consensus that the change is necessary. No modifying the foundation of our government on a whim. No 50% +1 vote is sufficient to, say, expel all left-handed redheads from the nation. (Note that this hasn't stopped us from making some bonehead changes, such as Prohibition and the popular election of Senators.)
On legal questions relating to the Constitution and the Bill of Rights, the various courts are supposed to defer to the intentions of the Founders. Thomas Jefferson put it this way in 1823:
"On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
When it comes to the Second Amendment there is no evidence that anything other than an individual right to arms was intended, and abundant evidence that an individual right is what was intended. Court cases dating up to the Civil War and beyond make that apparent. The most illuminative of these cases is also one of the most reviled. It is Scott v. Sanford, better known as "Dred Scott," and it occurred just prior to the Civil War. In fact, it has been called "the match that ignited the Civil War." If you're interested, go look it up. The central theme of the case was whether a slave, having been taken by his owner to a "free" state was, in fact, free. The Supreme Court in the unanimous opinion written by Chief Justice Taney not only said "no," it said that "free" blacks were not and could not be citizens, because:
(Citizenship) "would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State." (My emphasis)
FIFTY-EIGHT YEARS after the ratification of the Constitution and the Bill of Rights, the highest court in the land acknowledged that the right to keep and bear arms was an individual one, and no mention of the militia, well-regulated or otherwise was made. And the court found it necessary to deny all of the rights guaranteed to citizens to free blacks - why? To ensure public safety.
Further, shortly after the war (which was fought in no small part to determine just who "the People" were and was hell on the "public safety") the highest court in the land once again stepped on its penis, allowing the denial of the right to arms to the newly established citizens who had been made such by the 13th Amendment, and who were guaranteed equal protection under the law by the 14th Amendment. In U.S. v Cruikshank the Supreme Court declared not that the Second Amendment protected militias, but:
"The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution." (Remember my first post?) "Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes..."
In other words, the Bill of Rights didn't protect the rights of individuals against infringement - it protects them against infringement by Congress. The STATES were free to do as they damned well pleased. You had to depend on your fellow citizens for the protection of your rights there.
This was blatantly in opposition to the intent of the 14th Amendment, but because government is made of men, it still flew. And gun control in this country began to take root, fertilized with the manure of racism. State laws prohibiting blacks from possessing firearms were reinstated, and not one was struck down on Second Amendment grounds. The Supreme Court had ruled!
Since that time every other "right of the People" has had a Supreme Court or Appeals Court ruling that has "incorporated" it against infringement by the States - including the 3rd Amendment protection against the housing of troops in peacetime! Only the Second Amendment right of "bearing arms for a lawful purpose", "keep(ing) and carry(ing) arms wherever" we may go has not. And so we have a bewildering patchwork of gun control laws that varies from state to state, and county to county, and county to city, all over the country. Guns are licensed here, they aren't licensed there. You have to get government permission to buy a handgun in some states, but not in others. You aren't allowed to possess a handgun in some cities, but in Vermont there are no laws against carrying concealed at all. No permit required. Not even in Montpelier, the capital.
The Second Amendment was last addressed by the Supreme Court in 1939, after Congress passed the 1934 National Firearms Act - an act that many people believe did infringe on the right to arms. The NFA was passed in response to the general violence and lawlessness caused by that cranial flatulence, Prohibition. The lower federal court judge in the case certainly believed it did, as he dismissed the case against Jack Miller and Frank Layton on those grounds. In fact, what he said was:
"The National Firearms Act is not a revenue measure, but an attempt to usurp police power reserved to the states, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution - "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
The case was appealed directly to the Supreme Court - do not pass through the Appeals Court, go directly to jail. The decision in U.S. v Miller is a beautiful example of the judicial system dodging a bullet, so to speak. Miller and Layton were moonshiners (manufacturers of an untaxed alcoholic beverage) who were arrested by two Treasury agents for the possession and interstate transport of a "shotgun having a barrel of less than eighteen inches" which, under the 1934 National Firearms Act, was illegal unless they had a form with a stamp attached that proved they'd payed the required tax. That law said that if you had a shotgun and wanted to take it across state lines, the barrel had to be longer than 18" or you had to pay the tax. Of course, that "tax" also required you to file an application in duplicate, be fingerprinted and photographed, undergo a background check, and get the permission of the local head of law enforcement. Oh, and the tax was a mere $200. For a $10 shotgun. The same rules held for rifles having a barrel shorter than 16", and for fully-automatic weapons. And the law established a registry of all weapons so taxed.
Now I ask you: was this or was this not what the lower court judge said it was?
(This law is the one that most people think of when they claim that "machine guns are banned" by the federal government, but they aren't banned. Just registered and taxed and heavily restricted. There are states that ban them, but Arizona is not one of them. I know several people who legally own fully-automatic weapons.)
When the case appeared before the Supreme Court, Mr. Miller was nowhere to be found. Apparently he died in the interim, but Mr. Layton was still alive. Either way, neither Mr. Miller nor Mr. Layton was represented by anybody before the Supreme Court. No briefs were filed on their behalf, no evidence was presented to support their case. The prosecution claimed before the Court that Miller and Layton's claim that their Second Amendment rights were voilated was null because neither one of them was a member of a militia. That's the argument you've been making. The Court considered this, but it didn't decide the case on those grounds. It could have done so easily. They discussed the militia question in fervent detail, but never came to a conclusion on it. Instead, the Court decided that Miller and Layton's claim was invalid because:
"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
Which raises the interesting question, "what if they had some evidence?" And the more interesting question, "What if Miller and Layton had possessed a Browning Automatic Rifle instead?" The BAR was standard military equipment for the time, and was also available to the general public since its introduction in 1917.
So, once again, the Supreme Court made a bad decision - in the name of "public safety."
But what's worse is that the lower courts have since interpreted U.S. v Miller to say that there is no individual right to arms outside militia service, and that's a conclusion that cannot be drawn from an honest reading of the case. Since 1939 we've been fighting an uphill battle, and there have been no other cases brought before the Supreme Court. They've dodged every one.
With the door now opened, gun control forces such as the ones that have stripped England of the right to arms expanded the laws to affect not just "those people," but everybody. The good-old-boys who used gun control laws to keep the blacks unarmed now saw those same laws used against themselves. Horrors! And the courts offered no respite. The courts were responsible for this.
But in the last two decades our side has been fighting back, and with growing success. First, we got the legal scholars to actually look at the law. Then they started writing. And getting ostracized by their liberal coworkers, but that didn't stop them. I could quote a number of them, but I'll quote just one - Laurence Tribe. Yale Law School professor, author of the ConLaw text American Constitutional Law and one of Al Gore's lawyers in the last Presidential Election. In the first edition of his textbook, he didn't even mention the Second Amendment, but in the most recent one he has:
"Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist / republican / federalism one: Its central object is to arm 'We the People' so that ordinary citizens can paricipate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes -- not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons -- a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by §1 of the Fourteenth Amendment against state or local government action."
He was villified by other liberals for writing that.
Then there was the recent Fifth Circuit Court of Appeals decision in US v Emerson which did (for the first time since 1939) an "original intent" review of the Second Amendment, (including a thorough review of US v Miller) and which concluded that the right to arms was an individual right. HOWEVER (and I'm finally getting back to the "nukes in the garage / RPGs in the basement" argument):
"Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country."
Halleluja! The right is individual, but not unlimited! The difference is, whatever restrictions (at this time) the FEDERAL government wants to place on the right must be "narrowly tailored specific exceptions or restrictions" and (elsewhere in the decision) due process must be followed in order to deny an individual his rights. In the case of Timothy Emerson, he received due process and the restriction met the "narrowly tailored" requirement test of that court - "albeit likely minimally so".
Now, you would think, we would be able to discuss just what laws were and were not "narrowly tailored" and specific enough to meet the test, but not so! The NINTH Circuit Court of Appeals handed down a decision even more recently that bitch-slapped the Fifth Circuit's decision, although several of the justices disagreed with the majority most eloquently. The Fifth Circuit is based in New Orleans. The Ninth Circuit is based in California. In San Francisco, to be exact. It's the most liberal of all the courts, and the most overturned by the Supreme Court. But there are some justices out of the 25 who still can think, and I'm going to end this post with the words of one of them. (I'd appreciate it if you wouldn't respond to this post, but instead let me come back and continue responding to your last one, as I have been writing and editing now for about
three four hours and have yet to leave page 1 of your post.)
The case is Silviera v Lockyer, and it has to do with California's version of the "assault weapons ban." The Ninth Circuit rejected the claim on the basis that there is no individual right to arms, holding as precedent an earlier case where the Ninth Circuit concluded that this was what US v Miller meant. The case was then appealed to the Ninth Circuit en banc, so that instead of only a three-judge panel, all 25 would hear it. That appeal was rejected on the same grounds. There were FOUR (4) dissenting opinions. This one was, by far, the best:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet...and that “persons, houses, papers, and effects” also means public telephone booths....When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon - a sawed-off shotgun - was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller’s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.
The majority falls prey to the delusion - popular in some circles - that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth - born of experience - is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process. In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to “keep and carry arms wherever they went”). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.
All too many of the other great tragedies of history - Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few - were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.
My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed - where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel’s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The sheer ponderousness of the panel’s opinion - the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text - refutes its thesis far more convincingly than anything I might say. The panel’s labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it - and is just as likely to succeed. (All emphasis in original, most legal references removed for clarity.)
So, in answer to your question "...let's say a liberal government came to power and wanted to ban gun ownership. It would not be able to, because of the Second Amendment, right?", let's just say the jury is still out on that one.
Thursday, May 22, 2003
I don't have a position on the police per se. The fact is that, here in the UK, most handguns are illegal. Therefore, waving a handgun that is easily recognisable as a banned weapon (e.g. a Browning, Glock or Beretta) around in public is likely to attract the attention of armed police. The armed police are going to take note of the fact that he is probably breaking the law and decide to take him into custody. They are likely to cover him with their own weapons and order him to drop his gun. If he refuses to do so, and points it at them or at anyone else, they are likely to open fire in order to prevent him from shooting someone.
posted by Jack |
These are facts. It's not an opinion or a position. That is the law in this country and it is well-known. Whether you agree with that law is an entirely different issue and a different argument.
My opinion is that laws should be rigourously enforced in order to protect innocent, law-abiding citizens. Gun crime is a problem in Britain and I'm in favour of a zero-tolerance attitude towards all violent crimes, with very stiff penalties for those who break the law. As the law stands at the moment, if someone in the UK possesses a banned handgun (and you're not a police officer, soldier, etc.), you are breaking the law. Hence, if someone waves a (banned) handgun, or something that is industinguishable from a (banned) handgun around, refuses to put it down when ordered to by armed police and then points it at the police or anyone else, I am highly unlikely to feel any remorse or pity whatsoever if the police put a bullet in him. As far as I'm concerned, the policeman is just doing his job. Why should he risk his or other people's lives in order to avoid shooting someone who's already breaking the law?
Now, if we were talking about American police, or if (most) handguns were not banned under British law, and people had the right to bear arms in Britain, then the situation would be different, because the person waving the handgun around might be perfectly entitled to be in possession of it, in which case, we might be talking about the police killing people who were merely exercising their right to bear arms. But that is not the situation. We're talking about Britain, not America, and (most) handguns are illegal here. That's not a position. It's a fact.
If you have some point to make about 'suicide by police', go ahead. I read the link (I read the story before and didn't have any particularly strong feelings about it, apart from one of scorn for the idiot who shot in the direction of armed police) but I fail to see the relevance, apart from providing an example of what I'm talking about - i.e. people who are stupid enough that their death is of benefit to the gene pool.
posted by Kevin |
My commentary on your position on the police is not yet complete. I'm leading up to something, but it's necessary to lay the groundwork and have you explain you position in detail. My intention was to disconcert you so you would examine your position and articulate it more clearly. I think you've done that adequately so that I can make my point concerning the topic. You'll just have to wait until I have, and then decide if my position has any validity in your world view.
George Bernard Shaw once wrote that "England and America are two nations divided by a common language." I think we need to bear this in mind, here.
When I said "horseshit," it wasn't meant as a personal insult. It was meant in the meaning "I reject your definition." (Hey, I'm an American. We're often criticized for our crudity.) It doesn't fit my world view, and I'm going to try to explain to you why. I just haven't gotten there yet. Note that I did illustrate that the position you took has official sanction from your government. (Did you click the link?)
I doubt seriously I'll have the response up tonight. This is going to take a while. The last one ran six pages in small text, and took the better part of five hours to collate and write. I'll try to be more careful in my wording this time so as not to offend, but cut me some slack. I am not Acidman.
Remember, I'm the one who is defending the position that there is (and should be) an individual right to arms that is far broader that you apparently want to contemplate. On top of that, I'm not only writing for you, but for (hopefully) an interested audience. So drawing you out has to be one of my goals. I note that you've done the same (without being insulting) in your response (though I detect in places a certain snippishness.) That's fine. If we were to discuss this in a droning pleasant monotone it wouldn't be anywhere near as interesting. I am also not William F. Buckley, Jr.
I am enjoying this. I hope you are too, or it's going to end quickly.
I was disconcerted that you portray me as someone who believes that the police should have the right to decide who should be removed from the gene pool and carry out that removal.
posted by Jack |
I am offended that your response to my clarification of what I meant was "That's horseshit". You're ignoring my true intent. Fair enough, I'll excuse you for misunderstanding once, but I think I've made my position crystal clear...
Much Crunchy Goodness
posted by Kevin |
I seem to have offended you. My apologies. That was not my intent. You do understand now why I didn't want to have this discussion in the "comments" section of The Road Not Taken?
It's going to take some time to respond to everything you've discussed here (and some of the things you seemed to have skipped over), bearing in mind that you seem ready to take offense. I, like you, work for a living. So give me a day or two and we'll give it another try.
Remember: In my invitation to debate, I believe I said that I held no illusion that either of us would change positions on this topic.
Just ask yourself one question: Nothing you have written has angered me. Frustrated, yes, but I've not taken offense. You have. Why is that?
Wednesday, May 21, 2003
The longest blog in the world!
So, the right to bear arms originates with the English Bill of Rights, which states that the people (let's ignore the whole Protestant-only thing) "may have arms for their defence suitable to their conditions, and as allowed by law." Those four words are, rather important, because they call into question the idea that the pre-existing right to bear arms was an absolute one, as you seem to suggest. Furthermore, it ties in with the "well-regulated militia" concept and John Adams' comments.
You quote Tucker and I acknowledge that the rights of British citizens to bear arms may have been restricted, but I'm not sure that's entirely relevant. I furthermore question your assertion that "no such limitations" were included in the Second Amendment. I submit that the limitation "as allowed by law" was implied by reference to the pre-existing right, if the right they were referring to was indeed that, as enumerated in the English Bill of Rights.
It feels to me, like you're arguing against limiting the right to bear arms, whereas, in fact, you're actually artificially extending the right beyond limitations which were originally implied. You seem to be saying "Yeah, the Right pre-existed, and here is it's source in the English Bill of Rights, but we're going to ignore this bit here that says 'as allowed by law', because we want to say that it's a blanket right, which shouldn't be limited in any way."
Moving on to the definition of arms, it appears to me that, when the Second Amendment was written, the arms possessed by individuals were basically the same as used by armies at the time. In my mind, this again ties in with the whole concept of the Second Amendment having been primarily designed to ensure the continued existence of militia.
Going off on a little tangent in relation to Jefferson's words, how long has America gone "without such a rebellion"? Under what sort of circumstances would you expect to see US citizens rebel like they did in Massachussetts.
Back on track and your assertion that the "Rule of law" and "government" are interchangeable. I don't think I entirely agree with this, for two reasons. Firstly, it is my understanding that any law which is unconstitutional, may be challenged in the courts and struck down. Secondly, a government which pushes through legislation which is opposed by a majority of the people is likely to find itself out of power at the next election, replaced by a new government which can reverse the unpopular legislation. In addition, the policy of a government may not be in line with the rule of law. For example, let's say a liberal government came to power and wanted to ban gun ownership. It would not be able to, because of the Second Amendment, right? Also, the government controls the federal agencies, like the FBI, and the actions they carry out at the behest of the government (e.g. confiscating weapons) may not be in accordance with the rule of law.
I find the John Adams quote very interesting and I agree with you that "religious" can be dropped. The question I would ask is whether the American public is "a moral people" and whether they do, in fact, oppose anarchy, or whether they are displaying that quality which Jefferson was so worried about - apathy?
On my question of how to prevent criminals from using guns to carry out crimes, you only make the point that banning guns doesn't prevent gun crime. I agree, but I'd rather focus on it, than setting it aside, as, for me, this is a key driver behind this debate.
You raise a good point about private transactions. I guess the sort of licence I'm thinking about is one that licences the licencee to own a gun, rather than licencing them to buy one. It's a given that gunshop owners (or, in fact, anyone else who was selling a gun) would need to see someone's licence before they sold them a gun, because the gunshop owner (or private seller) himself would need to be a licence-holder and would, therefore, have given an undertaking to use, store and handle the guns in his possession in a responsible manner, which would basically prohibit him from selling a gun to someone who didn't have a licence.
As I said, simple registration isn't going to prevent gun crime, so I don't really see the point in keeping track of who owns what weapons. As an aside, I didn't say that ballistic fingerprinting could prevent gun crime, I just said that it might be able to, and made the caveat that the effectiveness and practicality of such an approach were open to question.
Now, you say that "If you have to get permission from the government to do it, it's not a right." Fair enough, but I don't think that getting a driving licence is the same as the government giving me permission to drive a car. The way I see it, a certain standard of driving competence has been set, and anyone who meets that standard is entitled to a driving licence. Note that, here in the UK at least, the only way someone can have their licence taken away from them is through the courts, normally because they've broken the law (speeding, drunk driving, etc.). If I passed my driving test and then the DVLA (Britain's Driver and Vehicle Licensing Agency, which is an agency of the government) refused to issue me with a licence, I suspect that I'd be able to take them to court over it. If the court then ruled (as I believe it would) that I should be granted a licence, despite the DVLA/government not wanting to, then that would mean that possessing a driving licence is a right, as opposed to a privilege. So, I don't believe that requiring someone possess a licence before they be allowed to own guns reduces their right to keep and bear arms to a privilege.
You say that "a RIGHT is what the population believes it is" and that makes sense to me. If the people don't believe that, say, bad dancing is a right, they're not going to object when the government bans bad dancing. So, you're basically worried that Americans are losing the belief that they have the right to keep and bear arms, without restriction, and you're trying to make sure that they keep on believing that. The reason we're having this debate it because I do not believe that the Second Amendment gives US citizens a blanket right to own and carry weapons. I'm not denying the right, I'm merely looking at whether it gives a blanket right, without restrictions. Now, the fact is that restrictions already exist - e.g. bans on concealed weapons and on felons owning guns (have I got that right, or are felons merely barred from buying guns?).
Next, you completely dodge my question, so let me ask you another: "If it were up to you, would you allow a man who was an alcoholic, known to be prone to irrationality and violence when drunk (but who had never been through the judicial system), and who has no experience or competence in weapons handling, to buy a gun?"
You then say that the licensing and training and storage requirements I think are reasonable, but that they didn't stop gun crime in the UK. You're absolutely right. However, where is gun crime higher - the US or UK? In any case, you seem to think that I'm in favour of gun control laws an enacted in the UK. You shouldn't assume.
I've already covered the concept of licencing not equalling permission. I don't think the hypothetically restrictive licencing regime you posit is worth answering. Suffice to say that, if the government makes it unreasonably difficult to obtain a licence, they could be taken to court over it.
After this point, you just seem to be going off on your own tangents (about how many guns are in circulation and how long the US coastline is), asserting some things that are obvious ("it is not logistically possible to prevent the criminally inclined from getting their hands on firearms"), flogging your pet dead horses ("making it more difficult for honest people to get guns") and asserting causal relationships between cause and effect with no supporting evidence whatsoever ("after the 1997 handgun ban, handgun crime skyrocketed". Interesting choice of words, by the way.).
Saying that introducing the sort of licencing regime I'm talking about won't eliminate gun crime is no reason not to do it. You seem to be implying that the answer to gun crime is allowing people to own guns with which to defend themselves. But this is the current situation in the US, and it obviously doesn't work. Let's be clear on this - it doesn't work.
I feel like I'm saying "Right, gun crime's a problem. Criminals find it easy to get guns, how about introducing licencing?" and you're replying, "No! Licencing's a shit idea, won't solve gun crime! We should keep the status quo!".
I want to know how you would solve gun crime. How would you reduce the frequency with which criminals use guns to commit crimes? You say that "The trick isn't cutting off supply, it's cutting off demand", but you leave it there. It's like you're saying "This isn't my problem. I just want my guns and to hell with everything else!"
Next, police and the gene pool. What's happened here is you've extracted a few words from what I wrote, taken them out of context, and you're running away with some argument of your own. You've implied that I'm some kind of Nazi who believes that the police have the right to remove people from the gene pool. I have clarified my position, so that there can be absolutely no confusion, and you respond with "that's horseshit". I'm not going to engage in a debate with you if you continue with this attitude. If you have an opinion/position/point of view, then lay it out and provide the facts, logic and conclusions to support it. Otherwise, we may as well finish this right now.
You wrote: "Now, in Britain, guns are illegal. That is a fact and it is well-known." It probably is, but it's not true. I don't know if you are aware, but rifles, some shotguns, most air guns, and blackpowder muzzle-loading guns (including handguns) are still legal. Very, very restricted, but still legal.*sigh* I don't have the time to qualify every time I mention the word "guns" with an exhaustive, legal definition. I have other, far, far more important things to do. I think my meaning is clear, so stop nitpicking. If you want to challenge my assertion that the Second Amendment doesn't provide a blanket right to own and bear weapons, carry on. If you want to nitpick, I'm not interested.
To answer your hypothetical, the officer is justified in shooting the perp, in order to prevent him from committing murder.
To continue, you say you wouldn't feel safer in England if carrying a gun for self-protection was made legal as it is in most states here. Honestly, I can't blame you, because there's more to it than just carrying a gun. There's a philosophy and mental attitude that goes along with it that has, by all appearances, been taken out of the general population there. Jefferson's fear of apathy writ large, as it were. But you go on to say that if I were able, you would feel safer. That's an interesting twist on what I call the "Guns for me, but not for thee" philosophy. You apparently equate me with the police. (That topic which we need to return to in your response.)I spent a lot of time trying to figure out what the fuck you were talking about here before I realised you'd taken me saying "you" as meaning you, i.e. Kevin.
Let me restate that paragraph to be clearer:
Would I feel safe if people in Britain were only able to own and carry a gun if they were not likely to use the weapon to break the law, competent to handle the weapon amd had given an undertaking to use, store and handle the gun in a responsible manner?
You know something? I think I probably would.
Moving on to your comments about gun owners and being comfortable with guns. Uhm, whatever. Again, I feel that we're going off on a complete tangent, this time on the topic of why guns (excluding rifles, some shotguns, most air guns, and blackpowder muzzle-loading guns (including handguns) *sigh*) got banned in England. I thought I'd made clear why I think that happened and, whether or not you're correct about the voice of gun owners neither confirms nor denies what I'm saying.
Sir William Blackstone's Absolute Right of Individuals exists no more on your fair island. You no longer believe.If you're saying that I, personally, no longer believe, then I have to disagree - I do believe "under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." If you're talking about the British population in general, I would say that the vast, vast majority of Britons would like to see a far, far tougher line on crime, and we're talking about the violence of crime rather than the violence of oppression.
As I said before, I don't think that the solution to the British crime problem is to allow everyone (excepting felons and all other classes of person who are prohibited from keeping arms in the United States of America) to "keep and bear arms" as is the case in the United States. I think that would cause far, far many more problems.
Finally, your concluding questions: "The reason US citizens feel they need to protect themselves against the government stems from their treatment by the British government before the War of Independence, and that British citizens don't feel the same need, because they are subjects of a monarchy, rather than citizens of a republic. What do you think of that? Um, WE were subjects of that same monarchy, and fought a revolution so that we could establish our Republic. What we can't understand is why you think it can't happen to you when it so obviously happened to us.Eh? What? Do you agree with what I said or not? I'm not here to debate whether or not the UK should or can become a republic...
Second: "Why don't the respective levels of gun ownership in the United States, Switzerland and Britain reflect the respective levels of gun crime?"
Well, perhaps you want to discuss things like why guns (rifles, some shotguns, most air guns, and blackpowder muzzle-loading guns (including handguns)) were banned in the UK, "suicide by police" and whether Britons should revolt and establish a republic, but I don't.
THERE'S the sixty-four million dollar question. And the answer is "culture." But that's a LONG essay unto itself, and we have much to discuss in what I've responded to here before we get there.
Let's just go back to the original issue here. I am saying that:
You say that:
- The right enumerated in the Second Amendment is not a blanket right to keep and bear arms without restrictions.
- There are some restrictions already in place in the US - e.g. felons cannot buy a gun and it is not legal to carry a concealed weapon.
- The fact that US citizens have been allowed to keep and bear arms largely without restriction, has probably contributed to the high level of gun crime in the US.
- Allowing citizens to keep and bear arms largely without restriction does not appear to reduce gun crime (i.e. the "self-defence" argument).
- Banning handguns does not appear to reduce gun crime (as evidenced by the situation in Britain).
- British gun control laws are needlessly restrictive.
- The British criminal justice system is far too lenient on criminals and fails to recognise the right of the victim to fight back against criminals.
I respond that:
- The right to keep and bear arms is necessary to allow citizens to defend themselves against oppressive government.
- Citizens should be allowed to keep and bear arms to defend themselves against criminals.
posted by Jack |
- Citizens should organise themselves in militia in order to provide a defence against oppressive government.
- Empirical evidence shows that allowing people to keep and bear arms does not appear to reduce gun crime.
posted by Jack |
I am putting together a reply, it's just that I've got a job and other commitments, so I'm unable to do it as quickly as I'd like... Watch this space, as they say! :-)
Tuesday, May 20, 2003
I Knew I Was Going to Enjoy This!
posted by Kevin |
As you said, let's get to it.
You ask: "So, the right to keep and bear arms was a right, before the Second Amendment was drafted. I have two questions. Firstly, is that right enumerated in any older document or writings?" Why, yes! It was first enumerated in the English Bill of Rights in 1689, to wit:
"That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law."
If you go read the whole thing, you'll note that the Founders
plagiarized borrowed heavily from the English Bill of Rights when writing our own. Now, what did the English right to arms mean?. Well, Sir William Blackstone wrote a Commentaries on the Laws of England in 1765, a multi-volume set of books on English law that was highly thought of by the legal and political professionals of his day. So highly, that the fourth edition was published in 1770. He had this to say about the right to arms in the section titled "Absolute Rights of Individuals" (spelling modernized because today we use "s" instead of "f" in our printing):
"THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." (Emphasis is mine)
Well, there you have it: "suitable to their condition and degree," "such as are allowed by law," "under due restrictions." Seems reasonable, right? Well, after the U.S. was established and the Constitution and Bill of Rights was passed, we got our own Sir William Blackstone in the person of St. George Tucker, who wrote his own version of Blackstone's Commentaries in 1803, only on American law, which he titled, in deference, Blackstone's Commentaries, but it has since become known more popularly as "American Blackstone". In it, St. George Tucker discusses the Second Amendment in direct relation to the English Bill of Rights guarantee:
"This may be considered as the true palladium of liberty. . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty." (Again, the emphasis is mine.)
Thus when our Founders wrote the Second Amendment, no such limitations were placed, so that the ABSOLUTE right of the individual could not be similarly stripped through legal maneuvering.
So, the right to arms, for means of self-defense and defense against oppression was originally enumerated by the English, but the government as early as the 1800's had managed to use the wording of the law to severely restrict that "absolute right of individuals."
You next asked (facetiously, I'm certain): "Secondly, I'd like the place that right in context by asking what was the definition of "arms" at that time? For example, I'm guessing that fully-automatic machine guns didn't exist." Why no, they didn't. However, the military arms of the day was the Brown Bess smoothbore flintlock musket, used by both sides. Americans, however, also used the Kentucky rifle and similar long-arms during the Revolutionary War. The British in fact protested the use of these rifles because American militiamen would shoot from behind cover at distances far in excess of the capabilities of the Brown Bess, and our men targeted officers deliberately. That wasn't cricket back then.
What many people are not aware of, however, is that some individuals owned their own cannon and ran artillery companies as part of the militia. Private individuals owned and ran cannon-armed privateers. This was crushingly expensive, as you can imagine, so it was comparitively rare (and you can draw a parallel to the people who today in the States own fully-automatic weapons, which are very expensive.) So the individuals of that day were armed with the same weaponry as the British Army, and in some ways some of the arms, particularly the rifled weapons, were superior. (Unless you wanted to stand shoulder-to-shoulder and slug it out at 50 yards.) It has been argued that the British attempted to respond in kind with the Ferguson rifle, but Ferguson was killed early on and it went nowhere.
However, your "point" that fully-automatic weapons didn't exist at the time of the writing of the Bill of Rights has been brought up before by many people, and it has been addressed by many. The best response I have found is this short FlashMedia film. Remember, we're talking about a RIGHT here.
I'm glad you agree that the Second Amendment was written as a final protection for "the People" against the State, and the John Adams quote is a good one. He's right, but I think you've missed the point - the militia needs to be (in his opinion) subject to some legal control, else anarchy could ensue. But your example of the DC "snipers" isn't a militia running around loose, it's two twisted individuals. And remember, not all the Founders were of the same mind. Prior to the ratification of the Constitution and Bill of Rights there was an uprising in Massachussetts called Shay's Rebellion over (what else) excessive taxation. It's interesting, you should read up on it. Anyway, Thomas Jefferson (writer of the Declaration of Independence and 3rd President) wrote a rather famous letter to a friend in which he discussed the uprising rather admiringly:
the British ministry have so long hired their gazetteers to repeat and model into every form lies about our being in anarchy, that the world has at length believed them, the English nation has believed them, the ministers themselves have come to believe them, & what is more wonderful, we have believed them ourselves. yet where does this anarchy exist? where did it ever exist, except in the single instance of Massachusets? and can history produce an instance of a rebellion so honourably conducted? I say nothing of it's motives. they were founded in ignorance, not wickedness. god forbid we should ever be 20 years without such a rebellion. the people cannot be all, & always, well informed. the past which is wrong will be discontented in proportion to the importance of the facts they misconceive; if they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. we have had 13. states independant 11. years. there has been one rebellion. that comes to one rebellion in a century & a half for each state. what country before ever existed a century & half without a rebellion? & what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? let them take arms. the remedy is to set them right as to facts, pardon & pacify them. what signify a few lives lost in a century or two? the tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. it is it's natural manure."
Jefferson, apparently, wasn't too worried about anarchy (or capitalization.) He was worried about apathy.
As to removing the words "government and", why bother? "Rule of law" and "government" are interchangeable. The rule of law is enforced by government. In fact, when you boil it down, government is the imposition of order by force or the implied use of force. And traditionally, governments have been jealous of retaining the sole "legitimate" use of force. (But I'll come back to that later.)
Your interpretation of Adams's quotation may be correct, but Adams was hardly the last word on the topic, as the Jefferson quote illustrates. Yes, if people start wholesale shooting up the countryside then anarchy will be the result. But it was John Adams who wrote:
"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
A moral and religious people (I would drop the "religious" as I believe it impossible to be religious in the meaning Adams had and not be moral, but it is possible to be moral as he meant it, and not religious) would not stoop to anarchy. They would oppose it.
Your next question: "How do you prevent criminals from using guns to carry out crimes, whether it be murder, robbery, muggings, whatever?" Well, it would appear that you and many in favor of gun control believe that restricting the rights of the law-abiding when it comes to firearms somehow prevents murder, robbery, muggings and whatever. However, according to FBI statistics, a firearm is only used in about 18% of violent crime. A lot of murder, robbery, muggings and whatever take place with no firearms at all. And making machine guns, semi-automatic rifles and shotguns, and all handguns illegal hasn't seemed to make a dent in England's incidents of these crimes, has it? If I recall correctly, the recent gunning down of two young women was accomplished with a fully-automatic weapon, and they've been banned in England since the 30's. So it would appear that "prevent(ing) criminals from using guns to carry out" these crimes isn't accomplished by gun control, is it? Let's hold off on discussing this further, as we've still got a LONG way to go.
Next you discuss licensing and registration. Good of you to note that with the existing system the government could begin compiling a registration list if it wanted to. It is currently restricted by law from doing so, but there is some circumstantial evidence that it's being done anyway. However, in the name of full disclosure, I feel it necessary to introduce you to the latest buzzword flying around in gun control circles here, the "gunshow loophole" - AKA, private transactions. In most of the states (but not all) there is no restriction on the sale of private property, namely firearms, in the state of residence. Here in Arizona I am free to sell to or buy from anyone who lives here. I am restricted, if I sell a weapon to someone in another state, to running that transaction through a licensed dealer in the recipient's state, but I can sell to or buy from my next door neighbor freely. Unfortunately, there's no way (legally) for me to run a background check on anyone. Only licensed dealers are able to use that system. So, if I want to be a good citizen, I can run the sale through a dealer, but it will cut into my sale price, as he will want some $ for his troubles. What most people don't understand is that guns are so plentiful here that used guns aren't worth all that much. If I sell something, I'm almost certain to take a loss on it already. There is no incentive to lose any more. I could also sell it directly to the dealer, but he has to make a profit, so he cannot give me as much as I could get on the open market. This secondary market is what essentially makes a registration list useless. You can know who bought the gun from the dealer, but after that all bets are off. It could literally be ANYWHERE, and we've been doing this since the start of the country. There's an estimated 250,000,000 firearms in circulation in this country, and no one knows (or could know) who has what.
I'm glad that you understand that "simple registration isn't going to prevent gun crime", but I cannot understand why you think that "ballistic fingerprinting" could. (I fully agree, let's not take up that subject now!) I do object to your assertion: "The reason cars are registered is so that, if someone does something illegal with one (e.g. a hit'n'run), an onlooker can record the registration plate." This is nitpicking, but the reason cars are registered is for TAXATION. The use of license plates for identification of a crime vehicle is a side benefit.
Next question: "...how do you differentiate between privileges and rights, and at what point does a privilege become a right?"
Answer to the first part: If you have to get permission from the government to do it, it's not a right.
Answer to the second part: Wrong question. The question is, "at what point does a right become a privilege?" Once government acquires power it almost never releases it, and force is often required to make it release it.
I wrote an essay a while back entitled "What Is a Right?" It's posted on my blog if you want to read it, but after I wrote it I found a quotation that boils it down to a paragraph (I'm pretty wordy, if you haven't noticed.) The quote is attributed to Supreme Court Justice Antonin Scalia, but I haven't been able to verify it. Regardless, it's accurate and I'll post it here:
"To some degree, a constitutional guarantee is like a commercial loan, you can only get it if, at the time, you don't really need it. The most important, enduring, and stable portions of the Constitution represent such a deep social consensus that one suspects if they were entirely eliminated, very little would change. And the converse is also true. A guarantee may appear in the words of the Constitution, but when the society ceases to possess an abiding belief in it, it has no living effect. Consider the fate of the principle expressed in the Tenth Amendment that the federal government is a government of limited powers. I do not suggest that constitutionalization has no effect in helping the society to preserve allegiance to its fundamental principles. That is the whole purpose of a constitution. But the allegiance comes first and the preservation afterwards."
In short, a RIGHT is what the population believes it is, and what I'm fighting for is the maintenance of that belief. England lost that belief, if it ever really had it, shortly after it was enumerated in 1689. America still retains it, but it's been badly mauled.
Next question: "If it were up to you, would you allow a man who was an alcoholic, known to be prone to irrationality and violence when drunk, and who has no experience or competence in weapons handling, to buy a gun?" If he is "known to be prone to irrationality and violence" then he's most likely been through the judicial system more than once. In which case his right to a firearm is most likely rescinded. This is another thing that most people don't understand. Gun crimes are committed by criminals in the overwhelming majority. These people have criminal records long before they use a gun. So they aren't eligible to walk into a gun store and buy a gun. If you weren't aware, the background check law is a fairly recent one nationwide (some states had that type of law prior to the Federal one). The government likes to claim that the law "stopped" 200,000, 400,000, 600,000 (depends on the time of day, I guess) "prohibited persons" from buying a gun. Well, no. It kept them from getting one at a gun store, but it didn't keep them from getting one on the street. And why? Because the government didn't go pick up these criminals who signed a confession form when they tried to buy the gun from the dealer. When you fill out that form you have to answer a series of question before the dealer will run the background check. If you answer any of the questions such that you are automatically disqualified, he will tell you to move along and not run the background check. But if you lie (and you must, in order for the check to be run) you've just committed a felony, and signed your name to it.
When asked why the Justice Department didn't prosecute more of these people (and they prosecuted essentially none at all) Janet Reno's response was that they had no intention to because enforcing that law would "clog the court system." Well, GEE! Howabout we comb the records and just pick up the known violent ones who were also stupid enough to try to get a gun from a dealer? Wouldn't that have been helpful?
You go on to describe the licensing and training and storage requirements you think reasonable. But I submit, the UK tried that, and it didn't prevent Dunblane. It didn't prevent those two young women from being gunned down by a hoodlum with a submachinegun. All it's done is reduce the number of people willing to jump through the hoops so that they can own a gun legally. It appears to me and to people like me that St. George Tucker was right. Essentially, you've been there and done that. We don't need to follow your example. We've see how effective it was.
As to the competency question, if you don't "give someone a gun unless they're competent with it" how do they develop competency? You advise that they must pass a (government administered) competency test. But once again, this presumes that the government will bestow that blessing on the populace. They can, as I pointed out, make it ridiculously difficult to do. "Competency examinations are held on the third Tuesday of each even-numbered month at the Army shooting range between the hours of 10:00PM and 10:20PM. You must get an appointment prior to taking the exam." Appointments are backlogged for six months, and civilians aren't allowed on the base after 6:00PM, appointment or not. Again: If you must get government permission, IT'S NOT A RIGHT.
Next question: "...it is the federal government that people are thinking about when they talk about requiring protection from the government. Would you say that is the case?" Generally, yes. The Second Amendment was based on the general idea that the FEDERAL goverment was the boogeyman, and would be opposed by the sovereign states. Since the Civil War, however, that's blurred a bit. Each state's National Guard (the "organized militia" as defined by U.S. Code) is, in fact, a creature of the Federal government. Your point?
On to self-defense. You write: "I can't help feeling that you've dodged the point I'm trying to make...I'm saying that attention should instead be focused on removing the threat from criminals, but you seem to be overlooking this point." Well, I don't think I was, but let's address this again. You're not addressing removing the threat (of armed) criminals, you're addressing the question of how to disarm criminals through the mode of making it more difficult for honest people to get guns. And that method has been proven a failure.
This is, pure and simple, a question of logistics and economics. There are two components to the gun market: the legitimate, and the illegitimate. In a free market like the U.S., the legitimate market is HUGE, and the criminal market is relatively small (remember, only about 18% of violent crime involves a firearm). You can, through market forces, affect the LEGITIMATE market, but those forces will have much less of an effect on the illegitimate market. In fact, the market forces can even have a reverse effect on the illegitimate market. England illustrates this, for after the 1997 handgun ban, handgun crime skyrocketed. I have read numerous reports that gang members have taken to carrying guns as "fashion accessories," and that shootings are occurring over minor incidents. And remember, England had only sixty-five THOUSAND legally owned handguns at the time of the ban, and they were all turned in. England, Wales, and Scotland have uniform gun laws, and they're on an ISLAND for jebus's sake. The United States has over sixty-five MILLION handguns currently in circulation, and we have two very porous borders in addition to untold miles of unguarded coastline.
In short, it is not logistically possible to prevent the criminally inclined from getting their hands on firearms if they want them. The absolute most you can accomplish is the disarming of the law-abiding. England did that. The results have not been pretty. And the English are, by and large, not a violent people taken as a whole. Americans are much more violent. I shudder to think what would happen here if our criminals had nothing to fear from their victims. The trick isn't cutting off supply, it's cutting off demand. How do you make them not want them? No one is addressing that question.
Next, the police, the gene pool and "suicide by cop."
You wrote "I am not saying that the police should be allowed to remove people from the gene pool. The fact is that, in the context I'm speaking about, police don't remove people from the gene pool; they remove themselves."
I'm sorry, but that's horseshit. You're playing semantic games. I can't blame you for it, though, as your government is doing it officially, but I cannot agree. Here we euphemistically refer to that as "suicide by cop," but it's still recorded the same as if a citizen or a cop shoots a criminal during the commission of a crime - it's called "justifiable homicide."
Let me ask you a hypothetical: You are accosted in a parking lot by a man with a knife who says "your wallet or your life!" By some miracle, the cops show up, but he grabs you and holds the knife to your throat threatening to kill you if the cops don't leave. He cuts you just so they know he's serious. He has you in a position where the police can't physically get to you, but one officer is able to get behind you. Would that officer be justified in shooting the perpetrator? If so, why? If not, why not?
You wrote: "Now, in Britain, guns are illegal. That is a fact and it is well-known." It probably is, but it's not true. I don't know if you are aware, but rifles, some shotguns, most air guns, and blackpowder muzzle-loading guns (including handguns) are still legal. Very, very restricted, but still legal.
You continue: "So, I hope I've made it clear that I do not believe that the police 'should be allowed to remove other people from the gene pool' or that 'the police be the sole arbiters of whom is a suitable candidate to remove from the gene pool'. Any questions on that?" Yes. And that question above addresses it. I'll be interested in reading your response.
You wrote: "I believe that innocent people should be able to go about their lives without fear of violent crime." I believe that's unrealistic. I don't think it should be in the forefront of your mind, but perfect safety is not an attainable goal. You can be safe, or you can be free, but you can never count on both at the same time. I think the level of risk should be minimal, though. And that's something I find really fascinating when it comes to the comparison between England and the U.S. According to British, U.S. and International Crime Victimization Survey data, it's actually more dangerous to live in England & Wales than in the U.S. on average. You have higher violent crime ratings on burglary (especially "hot" burglary - when the victims are at home), robbery, and assault than we do. One report I read indicated that you were six times more likely to be mugged in London than in New York City. Perhaps that has to do with the English judicial system coddling criminals, but I cannot help but believe that it also has to do with laws that force people to be submissive victims. You said it yourself: "I should have the right to kick the shit out (an assailant) and drag him to the nearest police station by his hair. Unfortunately, if I were to do so, I'd probably end up getting prosecuted for assault." You probably would. There are numerous laws in place for that, and they've been used with media coverage. But here in the states you'd probably get a pat on the back from the arresting officer, and at worst you'd go before a grand jury and be set loose.
Of course, here you'd still be subject to a civil suit, but things aren't perfect anywhere.
To continue, you say you wouldn't feel safer in England if carrying a gun for self-protection was made legal as it is in most states here. Honestly, I can't blame you, because there's more to it than just carrying a gun. There's a philosophy and mental attitude that goes along with it that has, by all appearances, been taken out of the general population there. Jefferson's fear of apathy writ large, as it were. But you go on to say that if I were able, you would feel safer. That's an interesting twist on what I call the "Guns for me, but not for thee" philosophy. You apparently equate me with the police. (That topic which we need to return to in your response.)
Then you said something I really found amusing. You wrote: "I don't think that, just because you don't actually own a gun, you can't voice an opinion on gun control." Hell, I never said that. What I said was that gun owners had no effective voice in parliament. Non-owners were heard in strident numbers. But to answer your statement, let me offer you one of my absolute favorite quotes:
"Basically, I figure guns are like gays: They seem a lot more sinister and threatening until you get to know a few; and once you have one in the house, you can get downright defensive about them. - Teresa Nielsen Hayden
That's it exactly. People fear what they do not know, and they are told to fear guns, so they do. Except for those of us who know them, and know that what the general public is being told is purest manure. Gun owners are demonized both here and there, so our voices are not heard unless there's enough of us to be loud enough. There are an estimated 60-80 MILLION gun owners in this country. It's estimated that between 25% and 40% of households contain at least one firearm. Only about four million of us are members of the National Rifle Association. But our voice is heard. We still believe in the individual right to arms, so that right still lives to some extent. The critical mass of gun owners in England, Scotland, and Wales was gone. Their voices were not heard, and Sir William Blackstone's Absolute Right of Individuals exists no more on your fair island. You no longer believe.
Finally, your concluding questions: "The reason US citizens feel they need to protect themselves against the government stems from their treatment by the British government before the War of Independence, and that British citizens don't feel the same need, because they are subjects of a monarchy, rather than citizens of a republic. What do you think of that? Um, WE were subjects of that same monarchy, and fought a revolution so that we could establish our Republic. What we can't understand is why you think it can't happen to you when it so obviously happened to us.
Second: "Why don't the respective levels of gun ownership in the United States, Switzerland and Britain reflect the respective levels of gun crime?"
THERE'S the sixty-four million dollar question. And the answer is "culture." But that's a LONG essay unto itself, and we have much to discuss in what I've responded to here before we get there.
Monday, May 19, 2003
Sorry, Kevin, you posted on Friday after I'd left work, and I was wearing green this weekend, so wasn't online.
Right, let's get to it. I'm not going to quote wholesale, because people can just check the previous post.
On the subject of the Consitution enumerating, rather than granting pre-existing rights, I have been enlightened. I hadn't realised that. So, the right to keep and bear arms was a right, before the Second Amendment was drafted. I have two questions. Firstly, is that right enumerated in any older document or writings? Secondly, I'd like the place that right in context by asking what was the definition of "arms" at that time? For example, I'm guessing that fully-automatic machine guns didn't exist.
On the subject of the Second Amendment being designed to as a final protection for "the People" against the government, I have no fundamental disagreement. I think that through history, there have been many instances of governments oppressing their citizens and given how the United States came into being, it makes sense that the Founders would want to ensure that their hard-fought freedom would be safe from such an oppressive government in the future.
You quote Samuel Adams, so I think it's only appropriate to counter with a quote from his second cousin, along with an interpretation of his words' meaning, which I found on this page, which Acidman originally pointed me at.
To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.
Now, I would actually suggest that the words "government and" be deleted from that interpretation, because Adams doesn't actually say that militia should be controlled by the government and it's not logical that militia whose purpose is to ensure that the People are protected from the government, should be controlled by that very same government.
- John Adams, A Defence of the Constitutions of the United States 475 (1787-1788)
John Adams recognizes the fundamental right of citizens, as individuals, to defend themselves with arms, however he states militias must be controlled by government and the rule of law. To have otherwise is to invite anarchy.
The point here is that Adams is effectively saying that the only use for arms should be either in individual self-defence or as part of a militia. To allow otherwise is to invite anarchy "so that liberty can be enjoyed by no man". This is an important point, because Adams is saying that if people start using arms for purposes other than these two (and I'm setting aside hunting and target-shooting for the time being), then the freedom which the right to keep and bear arms is supposed to protect, shall be threatened. The best example of this that I can think of is the sniper in the DC suburbs whose campaign of terror made people scared to go outside. His anonymous and implicit threat of death restricted their liberty. So, what do you do? How do you prevent criminals from using guns to carry out crimes, whether it be murder, robbery, muggings, whatever?
On to the subject of registration, licencing and competence with weapons. First of all, let's set aside the registration issue. You mention that people buying guns have to fill out a government form, whether or not the government actually collates and records that info is irrelevant - it appears that they could if they wanted to. Besides, having thought about the subject a bit more, I've concluded that simple registration of firearms isn't going to prevent gun crime. The reason cars are registered is so that, if someone does something illegal with one (e.g. a hit'n'run), an onlooker can record the registration plate, which can be used to trace the individual gun. The only type of registration that might help prevent gun crime would be the mandatory recording of the ballistics rifling pattern of each weapon - kind of a fingerprinting process which would allow bullets recovered from crime scenes to be matched to a weapon. The effectiveness and practicality of such a scheme are open to debate, but I think that it's a separate debate to this one, so let's forget it.
Setting aside registration leaves licencing and competence. First of all, I'd like to make a comment about your point that the right to own and bear arms is a right, whereas driving a car isn't. If it isn't a right, then what is it? For the purposes of this post, let's take Acidman's answer - "It's a privilige." (sic). Now, bearing in mind that the right to bear arms isn't conferred by the Constitution, but merely affirmed by it, how do you differentiate between privileges and rights, and at what point does a privilege become a right?
I think that what we need in this are is common sense. So, setting aside the right to own and bear arms for one moment, let's posit a situation. If it were up to you, would you allow a man who was an alcoholic, known to be prone to irrationality and violence when drunk, and who has no experience or competence in weapons handling, to buy a gun? I don't for one moment believe that the founding fathers intended for the Second Amendment to allow people to own or bear a weapon who common sense would dictate should not be allowed to, do you?
Now, what I'm thinking about here is a licence which is required in order to be able to buy a weapon, that will be indicative of three things. Firstly, that the holder is not likely to use the weapon to break the law. Secondly, that they are competent to handle the weapon. Thirdly, that they have given an undertaking to use, store and handle the gun in a responsible manner.
The first is effectively already part-way there, in the manner in which it's checked whether a gun buyer is a felon or not. You could expand it to allow objections. For example, the police might object to a gang-member with a string of misdemeanours to his name, being given a licence. Yeah, fine, he's not a felon, but again, let's go back to common sense - if it was up to you (and setting the right to bear arms aside for a moment), would you let such a person walk out of a shop with a gun? Now, this is an area I haven't thought a huge amount about, but I would say that the decision over whether to grant a licence to a person against whom objections were raised, should be made by someone who is independent and has good judgement. A judge springs to mind as an obvious candidate.
The second (competency) is, to me, common sense. Don't give someone a gun unless they're competent with it. For example, the British Army has a weapons handling test, in which you show that you are competent with, say, a pistol. So, why not introduce the same idea in civilian life. You raise a very good point that "the government could make getting that license more and more difficult until it didn't give out any licences at all". I reckon that the way of preventing that might be to say that the level of civilian competency should be the same as that in the military. Of course, I'm not actually familiar with the level of competency in the US Army...
The third, that the licence-holder has given an undertaking to use, store and handle the gun in a responsible manner, is just there to ensure that people know not to leave a loaded revolver on their car seat while they go shopping, that they don't leave it accessible to children, that they don't start waving it around during an argument after a minor traffic accident - that sort of thing.
Out of interest, while reading various web pages and articles about this subject, I have gained the impression that there is a perceived separation in people's minds between the federal and local governments, and that it is the federal government that people are thinking about when they talk about requiring protection from the government. Would you say that is the case?
Moving onto the subject of self-defence, I can't help feeling that you've dodged the point I'm trying to make - i.e. saying the people needs guns to defend themselves against criminals who have guns is not a reason in and of itself, to allow people to carry guns (whether it be concealed or open). I'm saying that attention should instead be focused on removing the threat from criminals, but you seem to be overlooking this point.
Next we have a significant misunderstanding. In response to my comments about the police shooting dead people who refuse to put down weapons, you write:
What Jack has done here is separate out the police - people who should be allowed to remove other people from the gene pool - from the general public, who should not. [...] Why should the police be the sole arbiters of whom is a suitable candidate to remove from the gene pool?Stop.
I am not saying that the police should be allowed to remove people from the gene pool. The fact is that, in the context I'm speaking about, police don't remove people from the gene pool; they remove themselves.
Let me explain. I'm a great fan of the Darwin Awards. In this life, we deal with certain facts. For example, it is a fact that buses travel on roads, at speed. It is also a fact that buses can't stop on a sixpence and that being hit by a bus is a good way of injuring or killing oneself. Hence, I believe that stepping out onto a road in front of a speeding bus is pretty stupid and, anyone who does that, not only deserves that they get, but has actually improved the gene pool by removing themself and their stupidity from it. I'm not saying that buses or bus drivers should be the arbiter of who should be removed from the gene pool, I'm merely saying that someone who's stupid enough to step in front of one, deserves what they get.
That's where I'm coming from.
Now, in Britain, guns are illegal. That is a fact and it is well-known. So, waving around a gun or something that is indistinguishable from a gun is probably going to attract armed police who will tell you to put it down. If you don't put it down and, instead, point it at them or anyone else, they are authorised and likely to open fire at you. It doesn't matter whether you agree with this policy or not, it doesn't matter whether you think it's fair or not. It's a fact. So, if you point a gun or something that is indistinguishable from a gun, at armed police, there's a good chance you will die. In other words, it's a very stupid (or suicidal thing to do) and if you're that stupid, your death improves the gene pool by removing you from it.
Once again, let me reiterate: It doesn't matter if you believe British citizens should be allowed to carry guns or that the police should not shoot people who point guns at them. That's the law and those are the rules laid down for the police. If you want to change them, you need to start a campaign, write letters, get involved in politics, etc., not start exercising what is, in Britain, a non-existent right to bear arms.
So, I hope I've made it clear that I do not believe that the police "should be allowed to remove other people from the gene pool" or that "the police be the sole arbiters of whom is a suitable candidate to remove from the gene pool".
Any questions on that?
Returning to the debate, let me make some comments about the crime situation in the UK. I believe that the government is too easy on criminals. I've begun to think about whether the death sentence should be reintroduced in Britain. I believe that the justice system should impose penalties and punishments which would prove a real deterrent to those who would threaten violence against innocent people. I don't believe that prisons should be comfortable or that criminals should receive lenience because they had a deprived upbringing or any of that bullshit. I believe that innocent people should be able to go about their lives without fear of violent crime.
We have a problem here in the UK with our laws and the justice system, which places too much onus on the rights of the criminal. If someone tried to mug me and threatens me with violence if I refuse to hand over my wallet, I should have the right to kick the shit out of him and drag him to the nearest police station by his hair. Unfortunately, if I were to do so, I'd probably end up getting prosecuted for assault.
Now, for me the key question is: Would I feel safer if it was made legal in the UK to own and carry guns in the same way as it is in the US, that is, if anyone could walk into a gun shop and, upon the production of a suitable piece of ID and, given that they didn't have a criminal record, be able to buy a gun and ammunition?
The answer is that I don't think I would. That's not to say that I accept the status quo.
Would I feel safe if you were only able to own and carry a gun if you were not likely to use the weapon to break the law, competent to handle the weapon amd had given an undertaking to use, store and handle the gun in a responsible manner?
You know something? I think I probably would.
Moving on to your final paragraph, you suggest that it was by gradually increasing the limitations on gun ownership that the British Parliament "reduced the number of law abiding gun owners in England and Wales to the point that they had no effective voice in Parliament that allowed the ban to be passed". I don't agree with this. I don't think that, just because you don't actually own a gun, you can't voice an opinion on gun control.
I think that the main driver behind the ban on guns was political expediency, shaped by public opinion which was in turn, fuelled by the tabloid newspapers. I have great concerns about the ability of the electorate in this country to use their vote intelligently. I think that the Dunblane massacre was regarded as a tragedy by everyone, that the tabloid newspapers seized on the incident as a reason to start media campaigns against guns, in order to sell more papers to normal people who were horrified by the massacre and ended up believing everything the papers published, which led to a public opinion which was pandered to by a government for reasons of popularity.
The problem is, that's democracy! Or, at least, our flavour of democracy.
Now, I want to introduce two things to the debate.
The first is an idea. I'm kind of just throwing this out there without really checking into the facts and background, but here we go: The reason US citizens feel they need to protect themselves against the government stems from their treatment by the British government before the War of Independence, and that British citizens don't feel the same need, because they are subjects of a monarchy, rather than citizens of a republic. What do you think of that?
The second is something that's been puzzling me: Why don't the respective levels of gun ownership in the United States, Switzerland and Britain reflect the respective levels of gun crime?
posted by Jack |