Thursday, May 09, 2013

I feel like Treebeard...

On guns and gun rights, I feel like Treebeard.  I am not entirely on anyone's side, because no one is entirely on my side.

An interesting post, linking to a piece I had not seen

The 2nd AmendmentA 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.

So, "the right of the people to keep and bear arms, shall not be infringed" says clearly that there is in fact an individual right to own guns, not just that states can have militias that are "well-regulated."

But that whole "well-regulated" part means something.  So registration, background checks, responsible storage, and required training...why not?  I'd say the closest analogy is a driver's license.  You can't be told "no, no driver's license for you!"  It's a "shall issue" situation.  But if you misuse, behave dangerously, etc., you lose the license.  And you have to register your car, and have training, and so on.  The state can impose substantial regulations on purchase, ownership, and use of guns.

I'm pretty sure that exactly no one agrees with me.  The NRA-ites want to be able to fight the 82nd Airborne (seriously?), and the anti-gun-ites want to pretend the 2nd Amendment doesn't exist.  (Problem, my lefty friends:  as Sandy Levinson sensibly admits, if you can ignore the 2nd Amendment, you can ignore the 1st, 4th, and 5th Amendments.  They come as a package.)

32 comments:

Clay Stallworth said...

Well, I think you're wrong about being alone. I'm on this side of the argument as well, for exactly the same reasons. I don't see why registration is any different than it is for my car. My car has a registration sticker I pay for each year (no, I don't want to do it) and I have to prove my minimal competence before I'm allowed to use it (thereby endangering others to some degree). I don't relish another tax and another such hoop to jump through, but it is not unreasonable to do so given the seriousness of owner and using a firearm (disclosure - I have one shotgun, one rifle, one pistol and one pellet gun). I think both (of the usual) sides on this issue talk past each other most of the time, because they both have valid points but neither side acknowledges it.

So maybe there are two people with your perspective on the issue.

Anonymous said...

But you don't have to register cars, have a license to own one, etc. Nearly all of the regulations on cars that people mention in this context are regulations on the use of cars in public. They are not required if you simply want to own a car, or drive one around on private property.

The idea that guns are less heavily regulated than cars is uninformed and compares regulations on the use of one good to regulations on the ownership of the other.

John Thacker said...

The NRA fights all restrictions for the same reason that NARAL fights all restrictions (up to and including requiring care for viable live births that occur when a woman went in for a pregnancy), and politicians go along for the same reasons, that people do vote on the issue.

TGGP said...

"Well regulated" didn't mean the same thing back then as it does now, and the amendment doesn't specify that a militia even needs to exist. The clause justifies the amendment, but does not modify it.

MK said...

Guns are like abortion--no one takes it serious intellectually. The "debate" is a hate-fueled clan feud about who can stick a finger deeper into the other's eye: will enlightened liberals stick it to the knuckle-dragging rednecks who all beat their wives, or will the freedom-fighters stick it to the sissy hipster vegans in capri pants at Starbucks? Mad Max 2 was more rational.

Mike said...

What purpose do car licensing regimes really serve? You can't convince me that we have better drivers because of them. Same with all the vehicle licensing, inspections, insurance, etc... Drive down the boulevard of any major city and you will encounter dozens of obvious scofflaws.

Beyond fund raising for government worker salaries, I see no other purpose.

The same would be true of any "reasonable" gun control regime.

Brad said...

I dunno, Munger, this seems like the sane centrist position most everyone I know adheres to, and in this instance is also not far from the gun control policies advocated over the years by a host of democrats (and back in the day, Republicans and the NRA).

Bruce B said...

Looks like at least 2 of the above 7 comments agree with you, as do I, so now we're up 3 people that agree with you. Woo-hoo! Form a PAC!

John said...

I think TGGP's constitutional interpretation is correct, from an original plain public meaning flavor of originalism. The statement of why they're introducing such an amendment no more modifies the amendment than does the preamble create authority for any branch of government outside those specifically delegated.

Now, is there still room for regulation to some degree? I think so...?

Anonymous said...

Driving a car is a privilege--not a right--and is granted by states, not the feds.

Cars kill people but we don't have "car control" because cars can't stop tyranny.

I take issue with registration, background checks, etc. because if there is a military coup for example, do you really want the government having a short list of which citizens are armed (or newspapers publishing the data which just happened a few months ago)? For the record, I own a 9mm that I acquired legally and jumped through all the hoops of getting a concealed carry license and everything is legal.

Better yet, having a concealed carry license means the police know I own a gun and if I get pulled over for any reason my life is much more difficult than if I didn't have it.

I believe private citizens should be able to fight the 82nd Airborne. Si vis pacem, para bellum--if you want peace, prepare for war. The 82nd Airborne doesn't bother private citizens and the only way to ensure it stays that way is through strength. An armed society is a polite society. The government has proven time and time again it can't be trusted from the seige on Ruby Ridge where snipers were given unconstitutional rules of engagement against private citizens 20 years ago to the recent Rand Paul filibuster on using drones to assassinate Americans.

I'm not some paranoid gun nut and I don't regularly carry, but I do live in the real world and to ignore the threat of government coercion is naive. There is and always will be evil in the world and it is stopped with bullets, not words.

Brad said...

Indeed sir, it is only you and your 9mm that is preventing the 82nd airborne from bothering private citizens.

I'll take you at your word about not being a gun nut, but delusional I'm not so sure about...

Anonymous said...

Brad--I'm small potatoes with my 9mm, but if my neighbor wants to buy an assault rifle or otherwise he should be able to. If he wants to build an arsenal that is his prerogative and unless he is infringing on the rights of others I don't give a hoot. How am I delusional? You haven't refuted anything I've said.

Anonymous said...

You can read the supporting documents, but in the original use of the words, "Well Regulated" meant that they practiced and were good at it. The emphasis of "regulation" was to "make regular" e.g consistent - being a good shot - not controlled by the government.

Jeff Roumm said...

I'm with MK. This isn't a policy debate, it's a street fight. Neither side is really aiming to secure our rights or protect the children or whatever platitudes they might trot out, it's simply to win.

My only rooting interest is in heavy casualties (metaphorical!) on both sides.

Zachary said...

A well regulated what? Oh. A well regulated MILITIA. The right to keep and bear arms is a separate clause. Regulate the militias all you want. My right to bear and keep arms SHALL NOT be infringed.

Jason said...

I had to re-watch your video on externalities to frame this, so here goes.

The 2nd Amendment is precisely about the individual's right to "bear" arms. It does not limit the government's ability to affect the production, sale, or taxation of arms before the individual ownership. (I would imagine legal precedence has answered this, but I am ignorant to that.)

The 2nd Amendment battle is largely an externalities issue. And so the first natural response is a Pigovian tax which is known to be imperfect.

Maybe the answer to Pigovian taxes is to not try to set the "perfect" tax. Maybe it should just be ridiculously expensive. And maybe just a rebranding.

Granted this is only valid on new sales at regulated vendors, but how about a Pigovian "Discount"?

When you purchase a new firearm, it is the Price+$5000. If you register your ownership at the point-of-sale, the $5000 is discounted. You are well within your 2nd Amendment right to anonymously, and possibly without any background checking, bear any firearm available, but you will not receive the $5000 "Discount". (I also suggest cash.) If you ever wish to register your firearm, you can receive a 100% return your $5,000 by filling out a line on your 1040.

Positives would be a)Raise the price of anonymously and criminally held firearms very quickly, b)Reduce "Straw" purchases, c)Provide a reason for lawful owners to report the loss of an anonymously held firearm d)The anonymity is transferable

Negatives would be a)Reduction in newly manufactured firearms(Lost jobs, scarcity) b)Increased prices of all firearms due to scarcity c)Fraud in the IRS reporting

Reduce the laws surrounding firearms, they're just proxy taxes.

John said...

Practical question about that plan: I assume it'd have to be collected like a sales tax to remain anonymous (onus on the seller). Compliance is going to be a big problem since the tax rate is competing with two different impulses. Too low and you don't discourage anonymous purchases. Too high and you push more purchases underground entirely.

John said...

Sorry, that ended up being more of a comment than a question.

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John said...

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Captain Profit said...

The way I read the 2nd amendment, the militia part is the justification, IE, since the state gets to be armed, so do you.

Jason said...

@John

There is already prolific un-reported sales, both legal and illegal.

The tax is explicitly known to be both imperfect and onerous, but anonymity is allowed.

If I sell you my anonymous firearm and you wish to keep it that way, just hand me $5000 to cover my cost of anonymity.

Jason said...

I also believe retail gun dealers are already subject to onerous federal compliance. (and may like it that way)

Gordon said...

For the record, I'm not a gun owner nor am I likely ever to be one. I think the terms "well regulated" and "security" in the 2nd amendment leads to some assumptions that may or may not be valid. "Well regulated" could be taken to mean that regulations are only valid if they come from government officials. But I will point out that officials derive their power from the people. "Security" could be taken to mean security against some sort of organized military. But it could also mean security against anyone who threatens the life and liberty of other individuals.

In 1992, the L.A. police abandoned the responsibility for providing security to the residents of Koreatown and the residents there formed their own militia.

In 2012 following Hurricane Sandy, Mayor Bloomberg abandoned his responsibility for providing security to the residents of the Rockaways area. Residents there formed their own security force.

I don't recall the exact details but I've read that in the 1960's, civil rights activists formed an armed security force to protect the witnesses in the killing of a black teenager. The activists did not trust the official police force.

So the question is whether the 2nd amendment was meant to cover such situations. If so, then how much power do you grant the local, state, or federal governments in regulating arms?

enoriverbend said...


Per your comment about ignoring the 1st as well as the 2nd, for any proposed gun control or restriction measure, I tend to think of what it would look like applied to the freedom of press or religion. It does help to clarify things somewhat.

So if you want to charge me a $5000 tax for a handgun, would you want to charge me $5000 tax for having the temerity to start a blog or newsletter? Do you think this would be constitutionally permissible?

If you want to limit my gun magazines to, say, a capacity of 10 bullets, does freedom of the press only apply if I have a maximum of 10 readers for my newspaper?

If you think individuals only have the freedom to possess muskets, since muskets were the primary firearm in the 1700's, do you also think freedom of the press only applies to broadsheets and newspapers and not TV, radio, or the Internet?

If the state can require you to get state-approved training before getting a firearm, can it require you to get state-approved training before writing an opinion column or a blog entry?

As history shows very well, religion and speech can be at least as dangerous as firearms. (If you doubt this, the history of the Rwanda genocide would be instructive.) I see no particular reason to support restrictions on firearm owners that I would oppose when applied to a free press or a religious sect.






BR said...

Hasn't Vietnam, Afghanistan, etc shown that regular folks with comparatively unsophisticated weaponry can actually do okay against the US Military?

Politics Debunked said...

To understand the militia reference it is useful to consider Madison's initial draft of the Bill of Rights which included an example justification for the 1st amendment:

http://www.usconstitution.net/madisonbor.html
"Madison's Introduction of the Bill of Rights

The text here presented can be found in The Annals of Congress, House of Representatives, First Congress, 1st Session, pp 448-460....
The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable....

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

It just happened that the example reason for the 1st amendment got cut, but not the one for the 2nd. It in no way constrains the protection to be only arms used for the militia, but merely provides it as an example justification for it: to keep a well-trained (i.e. regulated, it didn't mean government-regulation) populace ready in case it was needed.

Consider an alternative wording for part of the 1st amendment done using the structure of the 2nd:
"A well functioning press, being necessary to the operation of a free state, the right of the people to keep and use pens, shall not be infringed."

Politics Debunked said...

People tend to be under the impression things like background checks are innocuous. However most people won't bother with a background check they know they will fail, so almost everyone taking one expects to pass. Not surprisingly almost every person who failed a background check turns out to have failed it due to a mistake, like having the same name as a felon, as this article explains:

http://www.thefreelibrary.com/Background+check+errors+are+common.-a0263358942
"Lott explained that "the National Instant Criminal Background Check System (NICS)... accidentally flags many law-abiding people, stopping those who simply have the same name as a prohibited individual from buying a gun." Lott also noted that, after reviewing the numbers for 2009, 93 percent of the initial 71,010 denials were found to be okay to purchase a gun."

Though the article explains that going further the error rate turned out to be even higher. Unfortunately it requires time and perhaps legal expense to overturn a mistake, if you can afford it. People sometimes purchase guns due to a safety concern, like a death threat. People waiting for the ability to legally purchase a gun have been killed by the person they feared. It may be rare, but so is any benefit from the program since criminals just get guns on the black market, e.g. from criminal friends who haven't yet been convicted of anything and can buy guns.

Any widely desired item will create a black market, which tends to lead to an increase in crime to enforce it. Many gun restrictions merely lead to increased black market activity, and hurting innocent people depriving them of effective self defense. Our legal system is built around the concept of going out of our way to avoid harming the innocent, yet not in this case.

John D. said...

I wish we could ignore the 16th amendment.

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Anonymous said...

The one thing that cracks me up is that the 2nd amendment was written when guns took 2-3 minutes to fire a single bullet. So mass murder wasn't a real issue back then. And again, law abiding citizens don't need gun control. Criminals and mentally unstable people DON'T ABIDE BY THE LAWS. So gun control is propaganda. During prohibition alcohol fueled crime, violence, and corruption. The more you tell people "you can't do this because we say so" the more they will want to do it. Think about your teenage years and all the shit you did when your parents said no. Think about marijuana. Anyone can grow it, smokers are generally non violent individuals...but the govt made it illegal. Poof! There's crime and violence and drug dealers and murders over marijuana. People trying to make it stronger to sell better, competition causes murder in some cases. Maybe we should create less of a demand for guns, maybe we need to bust gun trafficking, maybe the solution is to regulate govt involvement.