The Commentary
The Gun Control debate.

Wednesday, May 28, 2003  

I didn't count words...

Yeah, when I get on a roll.....

I printed them out so I could peruse for grammatical errors. Eight pages for the first one, eight for the second. Not bad in response to a five page reply.

Sorry about that. Brevity might be the soul of wit, but I've yet to apply it when it comes to philosophy.

"A guy walks into a bar with a parrot on his shoulder...."

Take your time. I'm not going anywhere for a while.

Oh, and I see Blogger is acting up again. Please republish the archives. That might help.

Blogger is irritating, isn't it?

posted by Kevin | 14:01

"That's not a blog. It's a dissertation!"

I just cut and pasted your last two posts into Word and did a word count. Over ten thousand words.

It's going to take me a while to assimilate and write a response...

posted by Jack | 13:03

Sunday, May 25, 2003  

The Blog that Ate Poughkeepsie, concluded:

OK, now that I've expounded in an eight printed page essay on the uncertainty of whether or not the American court system would presently uphold a general ban on firearms, it's time to respond to the rest of your last post. In this one, I will probably once again flog my pet dead horses, assert causal relationships based on circumstantial evidence, and wing off on seemingly unrelated tangents. I will also strive to answer each of your questions, and illustrate to you the significant difference between our two arguments so that we may finally understand each other and:

A) reach a mutually acceptable conclusion,

B) amicably agree to disagree,

C) convert one or the other of us to the other's thinking,


D) descend into acid vitriol and invective, returning us back to where this began.

I have taken some time to thorougly re-read the discussion thus far and have mentally kicked myself for some of the things I wrote that were, upon reflection, not precisely what I meant to say. I intend to be as clear as I possibly can be, so kick off your shoes, open a beer or six, and prepare to sit a while. I have spent a bit of time responding to your posts in a more or less line-by-line manner. I don't think I can do that here and cohesively address the issues.

I will endeavor to avoid being boring, but I will be discussing government - so I'm afraid it may be a lost cause.

Let me begin (finally) by making the following assertions:

Your interest in regards to the public right to keep and bear arms strictly concerns public safety via the reduction of the use of firearms in violent crime through the offices and efforts of legitimate government.

My interest in regards to the right to keep and bear arms is an interest in the behavior of government. The use of firearms in violent crime is a secondary matter.

You want to discuss how to legally control guns so that gun crime can be controlled. I want to discuss how to ensure that the constitutionally guaranteed individual right to arms is not stripped from the people in the name of public safety. As an aside, at length (isn't that a scary thought), I will discuss my beliefs concerning gun control as it relates to firearm-involved violent crime.

This is not me avoiding the question! This is a philosophical adjunct to the way I view the right to arms versus the way you apparently view it. If you cannot grasp my viewpoint, even if only theoretically, then we cannot get anywhere. It is essential.

The British (and Western Europeans in general) appear to view government as a beneficial force, subject to the democratic process and submissive to the rule of law. After the wars of the 20th Century, Western Europeans have apparently concluded that democracy is now in control, and governments will never again descend into the depths reached in the previous Century. In short, you trust that government will do good, making only occasional errors which can be fixed by popular democratic referendum. Americans, at least until recently, have viewed government as a necessary evil that will, if unchecked, slowly and surely rob us of our liberty and reduce us to subjugation. It will do so, in our view, through the natural human apathy towards government (in answer to your question) that the condition of freedom seems to inspire in Man, and the apparent rise of anarchy that leads us to willingly yield our freedoms in return for specious promises of safety. In short, we trust that government will do what it has traditionally done - elevate a few to a position of dominance over the many. It will take power from the People, and vest it in the State.

There's a popular quotation running around gun-rights groups. It's attributed to Alexander Tytler (often Tyler) who was a real 18th century economist and historian who is said to have written a book entitled The Decline and Fall of the Athenian Republic. Unfortunately, I've found no corroborating evidence for the attribution, but what the quotation says embodies our understanding of how democracy works:

"A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves money from the public treasure. From that moment on the majority always votes for the candidates promising the most money from the public treasury, with the result that a democracy always collapses over loose fiscal policy followed by a dictatorship. The average age of the world's great civilizations has been two hundred years. These nations have progressed through the following sequence: from bondage to spiritual faith, from spiritual faith to great courage, from courage to liberty, from liberty to abundance, from abundance to selfishness, from selfishness to complacency from complacency to apathy, from apathy to dependency, from dependency back to bondage."

The American government was established as a representative republic in order to forestall this possibility, but time has lead us ever closer to true democracy and the fate that quotation predicts. There are those of us who believe our nation has reached a point somewhere between complacency and apathy. Others believe we are in between apathy and dependency. Regardless, we are attempting to oppose the slide down the slippery slope described, and believe that we can avoid or at least postpone as long as possible the eventual destruction of our rights by using the tools given to us by the Founders - the Bill of Rights and the Constitution - and by trying to force the government to strictly adhere to the rule of law - often in opposition to democratic popular opinion. At all times those of us who are not complacent, apathetic, or dependent understand that all three branches of our government, Executive, Legislative, and Judicial, do not always follow the rule of law, and that with each transgression, even minor, the next becomes easier and larger.

Apparently Unrelated Tangent Alert: Thus in America we have the American Civil Liberties Union, which fights to prevent or at least minimize each new transgression against all the rights of the individual guaranteed in the Bill of Rights (with the exception of the right to arms) and a few more that were not enumerated, and the National Rifle Association which works to prevent or at least minimize each new transgression against the individual right to keep and bear arms. (This is not the place to discuss why this split exist, but take my word for it, it does.) The ACLU was founded in 1920 with the mandate it currently has. The NRA was founded in 1871 with the intent to make America a nation of riflemen again. It did not become politicized until 1934 (for obvious reasons). Each organization treats each of the rights it works to protect as theoretical absolutes, with the full knowledge that there are no practical absolute rights. (Thus convicted felons are prohibited from voting and from possessing firearms unless their civil rights have been legally restored.) The purpose of these organizations is to force the government to justify itself when it attempts to pass any new laws restricting our individual rights, and then test the laws that pass against the benchmark of the Constitution and the Bill of Rights in the courts. This is necessary because the checks and balances engineered into the Constitution have proven to be inadequate in the face of the accumulated crap of over 200 years of cutting corners and disregarding the rule of law for convenience, or profit, or zeal, or any other reasons both nefarious and benign. For example, Congress recently passed a campaign finance reform bill that was (to most of us) blatantly unconstitutional in some of its parts. President Bush signed that law, although he admitted he believed that parts of it would be struck down by the courts. And in an interesting twist, the ACLU and the NRA were on the same side in fighting this law.

That's not the way our system of government was designed to work. But it is how democracies function. The law was written so that lawmakers - who, Mencken wrote "...have, taking one with another, no special talent for the business of government; they have only a talent for getting and holding office.", could say to the public "we're doing something about government corruption and the purchasing of elective office!" (whether they actually were or not.) And Bush couldn't veto the bill, as he wants to get re-elected too. Vetoing the bill would be spun as "supporting the corrupt status-quo." So instead of telling the populace "we can't do this because it's prohibited by the Constitution," they went ahead and violated their oaths to "uphold and defend the Constitution", and laid off the blame for overturning the law to the courts who are not answerable to the voting populace - at the present time.

The courts feel the pressure of public opinion. They sometimes share that opinion. Judges are people too. See the US v Cruikshank case I referenced in my last post. But they're supposed to follow the Constitution. That quotation attributed to Scalia? "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."? That may be true, but the reason that the Constitution spells out that Supreme Court justices are appointed for life and that they cannot be removed from the bench is to ensure that the guarantees appearing in the words of the Constitution never lose their effect on government - regardless of whether or not society possesses an abiding belief in them. If society wants to reject those guarantees, they have the amendment process with which to do it. Letting those guarantees die from mere apathy is what the Constitution is there to prevent.

The ACLU has about 330,000 dues-paying members, up 50,000 since 9/11/2001. The NRA has a dues-paying membership of approximately 4,000,000, up from 3 million after the 1994 assault weapons ban passed. I leave it up to you to conclude which constitutionally protected right non-apathetic Americans feel is most at risk.

You wrote: "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." This presumes that the court would find in your favor because it would follow the rule of law. That's an assumption, you'll notice, that I am unable to concur with. I certainly hope the court would, but I don't take it as a given that it will. I've studied enough court cases having to do with the right to arms over the last several years that I fully appreciated Judge Kozinski's comment that: "Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted...But...when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there." When discussing licensing, you hold that getting a license where you have to prove to the government - to its satisfaction - that you won't be dangerous, you know how to use the weapon, and you know how to store it properly, doesn't necessarily reduce that right to a privilege. Again, I must disagree. I have illustrated to you that doing those very things - in the name of public safety - in the end resulted in the confiscation of every modern handgun, and all fully-automatic and semi-automatic weapons with the exception of some shotguns from the law-abiding public. I grant that this was not the intent of these laws, but what does that matter? (Forgive me for the blurb on what weapons are still legal in England. It was late, and I was on a roll, and it just came rolling out.) In short, the government has told its subjects that all those requirements still weren't enough to secure public safety, and that privilege is now gone. Or, conversely, the voting public told the government that all those laws weren't enough, and government was forced - in the name of public safety - to ban all the weapons I listed. (Interesting, though, that said legislation was sitting on an member of Parliament's desk just waiting to run through that body.) The why isn't what's important, the end result is. You disagree with that legislation, but I submit that your chances of getting the law changed are slim to none. My hypothetical might have been farfetched, but your reality is extreme. Government has made it unreasonably impossible to own a handgun, and the courts are no help in restoring what was once, before 1920, a right.

You wrote: "I don't think that getting a driving licence is the same as the government giving me permission to drive a car." No? Get caught driving a car on a public street without one. That may sound flippant, but it's the truth.

Then you ask: "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?".


If his right to arms has not been restricted through due process of law, YES. (Note, however, that one of the disqualifying questions on the BATF form 4473 that he must fill out in order to purchase a firearm from a dealer is whether he abuses drugs or alcohol. But he might honestly believe that he does not. A lot of alcoholics are like that.)

That's the problem with rights. They come with corresponding responsibilities, but some human beings will abuse their rights and abrogate those responsibilities. And here is where your side and my side have the greatest difference of opinion. The fact that some people will, inevitably, abuse their rights and abrogate their responsibilities is not sufficient cause to restrict or reject those rights wholesale. Abrogation of the responsibilities correspondent with the right to arms means that some people are killed and injured with weapons. Restriction of the right to arms, even up to elimination, doesn't change that. At most it changes the quantity and the demography of the victims. As Judge Kozinski pointed out: "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." He was talking about the majority of the justices on the 9th Circuit bench, but he might as well have been talking about the majority of the public.

You wrote: "Saying that introducing the sort of licencing regime I'm talking about won't eliminate gun crime is no reason not to do it.", and "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!' ".

No, I'm saying that introducing licensing is the first step in making a right a privilege, and is the first step in the probable eventual elimination of that privilege. Whether or not it will affect gun crime is irrelevant to me. I also happen to believe:

1: Licensing is impossible to implement here;

2: Licensing would be a huge boondoggle an order of magnitute or more larger than it has become in Canada;

3: Licensing won't affect the ability of criminals to get guns; and

4: Licensing, in the end, would not only not eliminate gun crime, it would have no positive effect at all.

Those are all reasons not to do it, and maintain the status quo as it relates to the right to arms.

I have to ask: Is there any evidence that licensing adversely affected the ability of criminals to get guns in England. Any? And has prohibition of handguns prevented the lowest level of street thug from getting a handgun? That was the point of my apparently tangential rant about the number of guns in circulation here and our borders. You admit that these laws "didn't stop gun crime in the UK." They not only didn't stop them, they didn't prevent a massive increase. (This is a rhetorical question. I know you answered it at the end of your last post. I'm just reinforcing the point. The above relates to licensing here, not as you suggest it should be done in England. That's addressed below.)

You wrote: " seem to think that I'm in favour of gun control laws an (sic) enacted in the UK. You shouldn't assume." I'm not assuming. You have said that you didn't agree with the handgun ban. You have said that you don't think registration affects gun crime. But you are in favor of licensing and storage laws.

You wrote: "You seem to be implying that the answer to gun crime is allowing people to own guns with which to defend themselves." No. I'm stating that not allowing people to own guns with which to defend themselves aids those criminally inclined whether those criminals are armed with a firearm or not. And whether those who are criminally inclined are petty criminals or government officials.

You wrote: "But this (allowing people to own guns with which to defend themselves) is the current situation in the US, and it obviously doesn't work. Let's be clear on this - it doesn't work."

Let's be clear on this - it does work - when it's actually practiced. There have been a number of studies concerning the frequency of annual defensive gun useage in the United States. The highest range generally published has been 2.5 million annually. But the lowest estimate is 108,000. That's 295 defensive gun uses a day. In the vast majority of these cases, no shot is fired. On top of that, I think you misunderstand the the composition of gun ownership in America. The majority of gun owners in America don't have a gun for self-protection, or at least that's not the primary reason they own a gun. Most gun owners here have them for sport. They own a shotgun or a rifle or a target or hunting handgun. They might have a handgun for defense, but they don't carry it - it stays at home in a safe or drawer or closet, and it's probably not even loaded. Most people - gun owners included - believe that the government is responsible for keeping them safe. The number of gun owners who actively, willingly keep a gun for self defense is quite small.

You wrote: "...where is gun crime higher - the US or UK?" Yes, I realize this is also a rhetorical question, but it deserves an answer. It's higher in the U.S., where it has been higher ever since the country was founded, regardless of the fireams laws or lack thereof in each of the two nations. But the UK now has higher violent crime rates than the U.S. - only in homicide do we lead. (And boy, do we lead.) Our non-firearm homicide rate is greater than most European countries entire homicide rate. However, in the nine years from 1991 through 2000 our homicide and violent crime rates trended down - a trend unaffected by any new gun control laws. England's trended up - a trend unaffected by any new gun control laws, unless you want to accept the circumstantial evidence that the 1997 handgun ban explained the acceleration in the violent crime trend after that date. (English homicide rates didn't noticeably accelerate, but the percentage committed with handguns increased.)

You wrote: "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!' " Sorry about that, but as I illustrated above, I was discussing the right to arms - crime is a secondary topic to me.

As to "how to solve gun crime" - it would take just about as long to cover that topic as I have already spent writing these responses. Suffice it to say, "gun control" isn't the way. Not only isn't it the way, but down that path lies failure, because "gun control" isn't "gun crime control." If nothing else, England's pursuit of that path proves that. That $64 million question to which "culture" is the answer, as I stated, would be a LONG essay. The topic I invited you to debate was, as your original post titled it, "The Right to Bear Arms" not "gun crime." The two are not equivalent. Yes, the availability of firearms to the criminally inclined makes gun crimes easier to commit, but it doesn't cause those crimes to be committed. This is not a semantics game. Armed violent crime is extremely high in cultures where guns are illegal to possess and ostensibly difficult to acquire. Armed violent crime (as you noted) is extremely low in cultures where every male of military age has a fully-automatic rifle in his closet. Armed violent crime is not a function of gun availability. It's a function of culture as defined by Webster's: "the customary beliefs, social forms, and material traits of a racial, religious, or social group." We have the level of violent crime our society will tolerate. What a society will tolerate depends on what it, as an entity, perceives is being done to combat that crime. So far "gun control" has provided a lot of smoke and noise, but no actual improvement. And, I believe, English society is again about to its limit of what it will tolerate. Last time it reached that limit it banned handguns. I understand that the latest ideas being brought forward by members of the government are limiting trial by jury and reduction of the protection against double-jeopardy. I don't know about you, but I find those ideas chilling.

You'll note they aren't considering reinstating the right of self-defense.

And now, police and the gene pool.

In your first post you posited that you had no problem with police killing someone who waved a weapon around and wouldn't put it down when ordered to. Then you called it "suicide" - a position your government has now taken officially - although it is possible that the police could disable and disarm such a person without killing them. Regardless, you're OK with the idea that if someone wants to exhibit that kind of behavior, then the State (in the form of the police) can "remove them from the gene pool." Your words. I then asked you if, were you physically assaulted and at apparent risk to your life or health, you thought the police should be allowed to kill that perpetrator. You again answered "yes." I submit to you, then, that you do believe that the police should have the power to kill apparently dangerous criminals. This doesn't make you a Nazi. It makes you a realist. The fantasy I objected to was you saying that the police killing someone who was an apparent danger was "suicide." It's not. It's justifiable homicide. Words mean things.

You have further clarified your position, saying:

"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."

In other words, if people in Britain were able to own and carry guns for self-defense, given that they had proven to government that they were trustworthy, then they too would have the power to remove criminals from the gene pool. They should also be allowed to practice justifiable homicide.

I applaud your position. I even agree with your position insofar as it concerns carrying for self-defense. And more than 34 states in this country agree with that position, including Arizona. We don't have a blanket right to carry concealed. As I wrote in my opening post:

"The question of carrying weapons in order to defend oneself is an interesting one, as the earliest court cases involving the right to arms discussed this very topic. The conclusion of the majority of those cases was that laws prohibiting concealed carry were constitutionally OK, but laws prohibiting OPEN carry were not."

The right to carry openly has been (in my opinion unconstitutionally) restricted in many places. Challenges to these restrictions have been defeated in court, and public opinion has changed to the point that open carry now often generally causes concern among the public. (You still see it occasionally in Arizona, but it's rare.) But open carry has been largely replaced with shall-issue concealed-carry laws. The position of the right to arms as a theoretical absolute has yeilded to the reality that rights cannot be, in practice, absolute. These laws are not uniform, but they generally hold these things in common: You must not be a "prohibited person." You must undergo an extensive background check to prove this. You must attend a class that will inform you of your rights and responsibilities regarding the use of lethal force, and you must show familiarity and at least minor skill in the use of a handgun. Do these things and the state must issue you a license to carry. There is no test for "need."

That privilege has resulted in documented successful defensive gun uses where criminals have been "removed from the gene pool." Further, the percentage of people who have subsequently performed criminal acts such that lost them their permits or even resulted in jail time is far below the percentage of police officers who are convicted of crimes. In short THIS DOES WORK. But in every state where it is proposed, opponents predict blood in the streets. Shootouts over traffic accidents. People gunned down over sale items at the shopping center. They decry "more guns on the streets are not what we need!" These dire predictions never come true. You'd think after the 3rd or 6th or 10th state enacted this type of law, the opponents would learn, but they don't. The end result of these laws is a discussion of whether or not they actually contributed to a decline in violent crime. Every. Single. Time. It's not "the solution," but it's not a problem either.

But we also have people who do not possess concealed-carry permits who have used firearms to defend themselves against criminal attack. You want to make sure that everyone who has a gun has a permit. We only require those who go out in public with a concealed weapon for self-defense have one. Defending your home or place of business (in most jurisdictions) doesn't require government permission. (In some jurisdicitions, such as Washington, D.C. it is all but prohibited - and D.C. is the murder capital as well as the the nation's capital. That is, unless Chicago - where handguns are also banned - has retaken the title.) Here we have struck an uneasy balance - the right of the individual to keep arms is still alive. The right to bear them is somewhat legally restricted.

Regardless, your idea to allow licensing so that the English can have guns for self-defense has a snowball's chance in hell of making it through Parliament. Your culture won't permit it.

In conclusion, I'm going to address your list:

1: The right enumerated in the Second Amendment is not a blanket right to keep and bear arms without restrictions.

Hopefully I've answered this question. It's treated as one for each and every new attempt to infringe on it, and each new infringement should have to pass strict legal scrutiny to A) determine if that restriction is sufficiently narrow and limited, and B) ensure that due process has been met. That is not, in actuality, what has happened historically.

2: 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.

See above. Some restrictions are, from a constitutional perspective, defensable. Some restrictions are not. The courts have been of little use in protecting the rights of individuals when it comes to the right to arms. We are now seeing evidence that the pendulum is swinging back, but we have yet to determine just how far it's going to go. We have great hopes for an upcoming case.

3: 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.

The level of gun crime is the result of our culture. You can say that it's part of America's "gun culture," but I don't think that's useful or even true. America's traditional gun culture was one of personal responsibility and defense of society. There's a new gun culture that has infected America and England that emphasises the use of firearms over minor disagreements. The level of gun crime here is accepted as a cost of our freedom, largely because the vast majority of gun crime is limited to a small percentage of our culture. In that small percentage, gun crime is epidemic. The same holds true in England, but to a smaller extent.

4: Allowing citizens to keep and bear arms largely without restriction does not appear to reduce gun crime (i.e. the "self-defence" argument). Also restated as: Empirical evidence shows that allowing people to keep and bear arms does not appear to reduce gun crime.

Again, it might not reduce gun crime, but it stops somewhere between 108,000 and 2.5 million crimes annually here. My personal opinion is that the number is in the mid to high hundred-thousands. But even 108,000 is not insignificant. As I've said, I shudder to think what would happen if our right to self-defense was eliminated.

5: Banning handguns does not appear to reduce gun crime (as evidenced by the situation in Britain).

Neither did banning fully-auto and semi-auto weapons.

6: British gun control laws are needlessly restrictive.


7: 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.

Absolutely. I've got to nit-pick again, though. "Fails to recognize?" No, that right has been legally rejected. Deliberately.

8: Citizens should organise themselves in militia in order to provide a defence against oppressive government.

Here in America, that option is not really available. Forming a militia with the express purpose of "defending against oppressive government" draws the gimlet eye of the FBI, along with Dan Rather and a 60 Minutes television crew. See the Michigan Militia. People who do this make the citizens nervous. Plus, many states have laws against private militias. They took John Adams's quote to heart. What most of us would actually prefer is that more of us would stop being apathetic so that the few of us who are armed in the face of government oppression won't be forced to some day make Winston Churchill's decision:

"Still, if you will not fight for the right when you can easily win without bloodshed, if you will not fight when your victory will be sure and not so costly, you may come to the moment when you will have to fight with all the odds against you and only a precarious chance for survival. There may be a worse case. You may have to fight when there is no chance of victory, because it is better to perish than to live as slaves."

Finally, you asked me "Under what sort of circumstances would you expect to see US citizens rebel like they did in Massachussetts"? I don't know for sure. I don't have a handle on just how apathetic our citizens really are. But if they try to implement a wholesale confiscation of weapons, I predict it's going to get very, very ugly.

posted by Kevin | 07:05