The Commentary
The Gun Control debate.

Saturday, June 21, 2003  

To Continue...

You wrote:

I disagree that the issue is that cut and dried. To me, mention of a "well-regulated Militia" in the Second Amendment places the right to keep and bear arms enumerated therein, into a particular context.
Laurence Tribe's comments do provide food for thought, but like Blackstone and Tucker, he's merely a commentator (just as we are, in this approrpriately-entitled blog).
The fact remains that the commentators who matter in a system based on the rule of law are the judges who make decisions, and the thrust of everything I've written in here is that for the first hundred years following the ratification of the Constitution and the Bill of Rights, the Second Amendment was legally recognized as protecting an individual right to arms outside organized militia duty. However, that right was not free from at least some narrowly constructed restrictions, and the main restriction was the carrying of concealed weapons.

Lest you think the question of carrying a firearm in public is a new one, consider what happened in Tennessee immediately after the Civil War. Because of the surplus of firearms, particularly handguns, in 1870 the Tennessee legislature passed a law prohibiting the carry of most handheld weapons including pistols, but only "pocket and belt pistols." It apparently did not prohibit the carrying of full-sized (and at that time they were quite large) "Army" or "Navy" pistols. The Tennessee Supreme Court took three firearms-related cases simultaneously in 1871 and decided that the State could regulate the manner of carry in public places, but not the ownership of arms. Further, that only certain classes of weapons could be so regulated, and weapons suitable for warfare were protected. In short, if you had an Army or Navy pistol, the state could prohibit concealing it (not that you could) but not prevent you from carrying it in public. So the legislature of Tennessee responded in 1871 by revising the law prohibiting the carry of pistols, making it illegal to carry a
...belt or pocket pistol, or revolver, other than an army pistol, or such as are commonly carried and used in the United States army, and in no case shall it be lawful for any person to carry such army pistol publicly or privately about his person in any other manner but openly in his hands..."
Want to carry a firearm for self-protection? Carry it in your hand at all times. What a law. This is known as "back-door legislation." Get what you want within the letter but not the intent of the law.

Gun control has obviously been a hot topic for quite a while. If you do the research you will find that the overwhelming majority of cases disregard the "well-regulated militia" clause of the Second Amendment as being restrictive of "the right of the people to keep and bear arms." In a nation based on the rule of law, precedent is supposed to be the principle guide.

As to the Dred Scott case, I reiterate: You've thrown the baby out with the bathwater. Indeed the decision was racist, but the underlying reasoning was that the rights of citizens could not be extended to blacks and among those inherent rights was the right to "keep and carry arms wherever they went." If they could be citizens, they had that right along with all the rest. Again, no mention of a militia restriction.

As to the uniformity of gun law across the country (or lack thereof) that is strictly due to U.S. v. Cruikshank - the case that should have "incorporated" the right to arms under the umbrella of the 14th Amendment, but did not. Again, a racist decision that denied blacks (and others) the rights that the 14th Amendment was written to guarantee them. The denial was blatant, but it still stands.

Your understanding of the 1934 NFA is correct, with some caveats. As it was originally written unless you wanted to transport the weapon out of state, or transfer it to another person, you didn't need the paperwork and you didn't have to pay the tax - you were "grandfathered" in. It was passed as a "revenue gathering" measure, and Congress only had the power to tax interstate commerce. This changed in 1968, whereupon all privately owned NFA restricted weapons had to be registered even if they were never going to leave the state in which they resided. In regards to U.S. v. Miller, I'd be interested in your analysis of what it actually meant. You might also want to read Emerson to see what those judges had to say.

The Emerson case was appealed to the Supreme Court and they denied cert. Many pro-control people proclaim that the discussion and the conclusion finding that the right to arms is an individual one is merely obiter dictum and not binding law, but if you read the decision the justices make it clear that finding the right an individual one was required because it was the point of contention argued by both sides. This means that, at least in the 5th Circuit, the right to arms is now legally recognized as an individual right, but the scope of that right remains undefined. The Silviera case has been appealed to the Supreme Court. No decision on a writ of certiorari has been made as yet. At this time, there is no legally recognized individual right to arms in the 9th Circuit.

Concerning the "Assault Weapons Ban", it's one of the few weapons laws that have been passed by the Federal government. Given the tone of the Courts over the last 50 years, fighting it there was considered to be a useless effort, and not much was done anyway because the law as written is pretty toothless. It didn't "ban" very much. We still want to see it sunset in September of 2004, as it's scheduled to do.

As to your question of "are liberals pro- or anti-gun control?" I think I need to refer you to a Steven Den Beste piece that discusses the paradigm shift in what the word "liberal" currently means. "Liberal" today typically means "Revolutionary Statist," (read the Den Beste piece to understand) and they are overwhelmingly pro-control. (But then the Republicans are largely "pro-control," just not with the fervor of the Democrats - because both parties are, at heart, statist.)

You said you find it interesting to explore "the obsession with the right to keep and bear arms." It is interesting. In my particular case I tie that right in with the behavior of government as understood by the Founders, and in keeping with Tytler's chronology. I think that when or if Americans willingly surrender that right, we will have descended into dependency, to be followed shortly by bondage. I think a lot of gun-owning Americans believe this, but (like Acidman) aren't able to verbalize it well.

You mention "the anti-establishment feeling which appears to be associated with that obsession." Again, it's a question of whether or not you trust that government is a benevolent, a benign, or a malignant thing. I'm of the opinion that it's malignant and needs to be watched very, very closely. You'll find that the majority of gun-rights supporters feel this way. Given the history of government vis-a-vis the Second Amendment, we feel entirely justified in this belief.

Next you mention "the apparent failure of the pro-gun movement to consider the consequences of poorly-regulated gun ownership." I think that's mostly a matter of perception, aided by the propaganda of those on the control side. Is some regulation good and needful? Certainly, but we've been shown the slippery slope, and we feel like we're standing on the edge of the precipice, in handcuffs, wearing skis. My personal position is to oppose any and all new gun control legislation - no matter how good it might sound - until I get a guarantee from the Supreme Court that the right to arms is individual, is protected against state infringment, and won't be further stripped piecemeal from us. Each "next step" proposed by supporters of gun control appear to me and those like me as just another stroke in the death-by-a-thousand-cuts strategy they have undertaken. We don't fail to consider the consequences, we just feel that all the "compromise" so far has come from our side, and we're through "compromising" our rights away. The consequences are of less concern to us than the loss of the right. It doesn't help at all when you find out that the laws passed that actually might do some good aren't being enforced anyway. The "failure" of these laws is always used as the excuse for the "next step" legislation. (e.g.: the "Brady Background Check" and the proposed "Brady II" legislation, for example.)

You asked: "Do you think that perhaps that timeline is inevitable, that, like Shakespeare's seven ages of man, civilisations must go through that type of cycle and that parallels can be drawn between this and what Jefferson was thinking when he said that 'the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants'?" Yes. I think that Jefferson was afraid that we would descend into apathy, dependency, and bondage. He hoped we'd remain vigilant, even if (or possibly because) it meant that there would be armed insurrections from time to time. To him, that wasn't anarchy, it was enthusiastic involvment in self-government. Apathy meant being told what to do by the three thousand tyrants one mile away, rather than the one tyrant three thousand miles away, and doing it.

This question is interesting:
You raise an interesting issue when you decide that you cannot trust the courts to follow the rule of law. Surely if that is the case, then the entire foundation upon which the United States was founded is crumbling?
No, it isn't. Not trusting the courts is a realistic assessment of what happens when you put humans into positions of power. Some will abuse that power. It's a given. Some will do it out of perfidy, and some out of the best of intentions. I don't honestly think that the Taney Court thought that their decision in Dred Scott was evil. They thought they were right. Supreme Court Justice Louis Brandeis (1856 - 1941) is often quoted, and these are two of my favorites having to do with this topic:
Experience teaches us to be most on our guard to protect liberty when the government's purposes are beneficent.

The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
The foundation isn't crumbling, but it isn't of solid, unbroken granite, either. This question of trust was addressed in our Declaration of Independence:
Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.
We accept some corruption, and some bad court decisions because "mankind are more disposed to suffer, while Evils are sufferable, than to right themselve by abolishing the Forms to which they are accustomed." We still trust that the system can work like it's supposed to. When we no longer have that trust we will have reached the point at which it is our right and duty to "throw off such Government." And then we'll need our arms.

Another interesting point:
...the simple fact is that people do not feel the need to take steps to protect themselves against the government.
How do you feel now that Blair has, apparently with the stroke of a pen, eliminated the 1,400 year-old position of Lord High Chancellor? That's a pretty major move to make without consulting either Parliament or the populace, isn't it? And what about joining the EU fully? Does the general public have a say in that? Does the Queen?

You wrote:
The way I see it, there are certain limitations placed on these rights, for public safety, such as the speed limit. Such limits are placed on rights when people consistently fail to exercise their rights responsibly and, unfortunately, in today's society, here in the UK and, I believe, in the US, people are increasingly failing to exhibit a sense of responsibility.
Interesting that you should put it that way, as ex-President (I love saying that) Bill Clinton said something very similar back when he was having the Housing and Urban Development people run inspections of public housing projects for the possession of firearms:
What's happened in America today is, too many people live in areas where there's no family structure, no community structure, and no work structure. And so there's a lot of irresponsibility. And so a lot of people say there's too much personal freedom. When personal freedom's being abused, you have to move to limit it. That's what we did in the announcement I made last weekend on the public housing projects, about how we're going to have weapon sweeps and more things like that to try to make people safer in their communities. So that's my answer to you. We can have -- the more personal freedom a society has, the more personal responsibility a society needs, and the more strength you need out of your institutions -- family, community and work. From MTV's "Enough is Enough" show.
Americans don't like being told that their "personal freedoms" are being limited by government - for our own good, of course. We beleive in the illegality of "prior restraint" and in the concept of due process. That's what our written constitution is supposed to protect against.

I would further object to your characterization - at least as it concerns the right to arms - that "people are increasingly failing to exhibit a sense of responsibility." Accidental gunshot injury is at an all-time low, while the number of firearms in private hands is at an all-time high. Homicide rates are down to levels not seen since the 1960's. Our other violent crime rates are down too. I don't consider suicide to be a "failure to exhibit a sense of responsibility" The problem we have here is the same problem you have there - a small minority of our population is more than willing to criminally shoot other people. Restricting the rights of the entire population because a tiny minority doesn't "exhibit a sense of responsibility" is an anathema to me. Preventing the majority of people from defending themselves with firearms because that tiny minority (whom you cannot disarm) misuses firearms is so wrong it almost cannot be an innocent error.

You conclude:
Why is society changing in this manner? Well, that's the question, and I have some very vague ideas about discipline, sense of duty and other qualities which I associate with the military, Which, given that Switzerland still has compulsory military service, is one of the reasons I find it interesting that the respective levels of gun ownership in the United States, Switzerland and Britain don't reflect the respective levels of gun crime.
Discipline, sense of duty, and other qualities represent culture - and the primary difference between the U.S. and the UK is that in America we've always been a "salad bowl." The "melting pot" meme has largely been an ideal not realized. We've always been a nation of immigrants and children of immigrants, and as a result the friction between cultures has been a large component of the forces causing violence. Our history of slavery and subsequent oppression of blacks didn't help a bit either. Remember, our civil-rights movement really only made significant progress in the 1960's - fairly recently. Regardless, we have been and will continue to be a pretty violent nation because we don't share one culture. The Swiss do, and that culture is quite rigid. I think that you'll find that one measure of the rigidity of a culture is its crime rate, and another is its suicide rate. If it has a low crime rate and a high suicide rate, it's quite rigid. If the crime rate is moderate, but suicide is low, it's a relaxed culture. (This assumes, of course, that the culture is not completely chaotic as, say, Haiti is.) Japan and Switzerland are examples of two cultures that are rigid. England used to be, but you've suffered an onslaught of immigrants that are not interested in integrating into the dominant culture. Friction results. The same holds true for many Western European nations right now.

Well, I hope you enjoy your holiday, and I hope you return to pick up this discussion. It's been entertaining thus far.

posted by Kevin | 03:08