President Obama And The Rhetoric Of Rights

Today the President of the United States gave a speech about gun control measures. I don't intend to critique those measures. Nor do I mean to critique his rhetoric about gun violence. I do intend to critique his language about rights, because how our leaders discuss rights can have a powerful impact on how Americans understand rights.

Here we go.

Now, I want to be absolutely clear at the start. I have said this over and over again — this also becomes routine. There is a ritual about this whole thing that I have to do. I believe in the Second Amendment. It is there, written on the paper, it guarantees a right to bear arms. No matter how many times people try to my words around, I taught constitutional law, I know a little bit about this.

The President is invoking my Trope Eight, appeal to the authority of a law professor. Here's the problem: law professors have a habit of taking what they think the law should be and portraying it as what the law is. There are many principled law professors who make a sincere effort to avoid such disguised advocacy. But the fact that the President is a law professor doesn't make his views on the contours of rights reliable.

I get it. But I also believe we can find ways to reduce gun violence consistent with the Second Amendment. I mean, think about it — we all believe in the First Amendment, the guarantee of free speech. But we accept that you cannot yell "fire," in a theater. We understand there are some constraints on our freedom in order to protect innocent people.

Here the President invokes two tropes. There's Trope Three, "rights aren't absolute." This is perfectly true. Moreover, at the risk of calling down ten thousand butthurt commenters, there's no colorable basis to view the Second Amendment as absolute when courts have recognized exceptions to the rights conferred in other amendments. The Supreme Court only very recently recognized that Second Amendment rights are individual rights, and jurisprudence exploring the boundaries of those rights is therefore decades behind.

But observing that rights aren't absolute doesn't establish that any given law is constitutional. It's at best a start to the discussion, not an end.

The President also invoked my least favorite trope, Trope Two, "shouting fire in a crowded theater." He didn't even fully invoke it, only mentioning "fire in a theater," calling to mind a malicious effort to disrupt a showing of Glitter or something. The important thing is that the trope is just a rhetorical flourish used to repeat that not all speech is protected, culled from a case in which the Supreme Court contemptibly approved of jailing a man for protesting the draft in World War One. It's a throwaway line from a case that is now universally recognized as wrongly decided. It's a line about rhetoric, not law. Using it doesn't send the signal "I will propose principled, text- and history-based exceptions to the rights conferred by this amendment." It signals "exceptions to rights can be shaped by the whims of the majority and by the fears of the moment." That's a foolish message in this instance.

We cherish our right to privacy, but we accept that you have to go through metal detectors before being allowed to board a plane. It's not because people like doing that, but we understand that is part of the price of living in a civilized society. And what's often ignored in this debate is that the majority of gun owners actually agree — a majority of gun owners agree that we can respect the Second Amendment while keeping an irresponsible, lawbreaking feud from inflicting harm on a massive scale.

Here the President is again invoking "rights are not absolute" with another example. And it's a terrible example. The TSA offers security theater, not security. When we give up our right to privacy to be groped and scanned, we're giving it up so that politicians can say they are doing something, not to make ourselves safer. It's therefore a poor comparison to use to support a gun control program already being criticized as mere window-dressing.

The President also offers an appeal to the masses, citing the constitutional wisdom of a majority of gun owners. I should find a First Amendment example and add that to my trope list. Rights protect us from the majority; they aren't curtailed by the views of the majority, thank God.

All of us should be able to work together to find a balance that declares the rest of our rights are also important. Second Amendment rights are important, but there are other rights that we care about as well. And we have to be able to balance them, because our right to worship freely and safely — that right was denied to Christians in Charleston, South Carolina.

And that was denied Jews in Kansas city, and that was denied Muslims in Chapel Hill and Sikhs in Oak Creek. They had rights too.

Our right to peaceful assembly, that right was robbed from moviegoers in Aurora and Lafayette. Our inalienable right to life, and liberty and the pursuit of happiness, those rights were stripped from college kids in Blacksburg and Santa Barbara, and from high- schoolers in Columbine, and from first graders in Newtown.

Here the President is invoking the Second Amendment equivalent of Trope Five, saying that Second Amendment rights must be balanced with other rights. If he said that about the First Amendment, I'd say he's flat wrong. Is he wrong with respect to the Second Amendment? That's too big a question for this post. I'll just point out that it's rhetorical move that you should notice — that the proposition that we determine individual rights by balancing them with other interests is not true of at least some rights and not self-evidently true about Second Amendment rights.

The President's invocation of the rights of crime victims is a variation on the "balancing" trope. He accomplishes it by deliberately conflating different meanings of the word "rights." A constitutional right — like the one recognized by the Second Amendment — is a right to be free of government interference, a negative right. The right not to be subjected to criminal behavior by non-government actors is something else. It's not just invoked as a negative right — that is, President Obama isn't saying "you have the right to sue the estates of the killers because you had the right not to have your loved ones murdered by them." It's an ambiguous kind of positive right — the purported right to have the government do something to other people. In that sense it's like a right not to be offended, which must necessarily be enforced by the government silencing people who offend you. It's also familiar to criminal defense lawyers, who have seen it in the guise of "victim's rights."

What do you have the right for the government to do to support your right not to be attacked by crazed killers? I submit that there's no way to tell, and that the purported right impacts many parts of the constitution. Does your right not to be killed mean you have a right to demand that the government prevent me from having a gun, because (as I've discussed openly) I fight depression? Does your right to life create an obligation for the government to sentence criminals to longer sentences and not to let them out on parole? Does your right to life mean that more mentally ill people should be involuntarily confined and treated? I don't know, and I don't think that you know, either — because I think the right to have the government do things to other people for you is made up.

How broad is the individual right recognized by the Second Amendment? I don't know. I don't pretend to be a Second Amendment scholar, and we're starting nearly from scratch with the analysis. I suspect that the courts will find that the Second Amendment doesn't let you do whatever you want in connection with weapons, that it allows some forms of regulation of their ownership and use, and that both gun control advocates and Second Amendment advocates won't like the result.

But rights matter. The way we talk about them matters. You can't engage in unprincipled analysis of one amendment and expect it won't impact our rights under another amendment. The President's rhetoric was moving and heartfelt and, as a matter of what policy should be, ably argued. But it wasn't a good discussion of rights.

Last 5 posts by Ken White

Comments

  1. Zrakoplov says

    One thing you have to give Obama: when it comes to lying convincingly on television, he is better than Bill Clinton.
    In a private exchange with John Lott, Obama said, "I don’t believe people should be able to own guns.”
    So everything else he says means nothing.

  2. Sad Panda says

    @Zrakoplov:

    He has a personal opinion that differs from what his job requires of him, therefore everything he says means nothing. Under that analysis, can you point to an individual who's words *do* mean something? I'm pretty sure anyone with a job above the level of fry cook is likely to disagree with some part of what their work entails.

  3. says

    because I think the right to have the government do things to other people for you is made up.

    It would be fairer to say that government doing things to other people for you is the very purpose of government.

    Rights are constraints which God, Nature, the Founders, or We (choose your poison) have imposed upon that power for the benefit of individuals rather than the collective We.

  4. says

    With the exception of the bit about "fire in a theater", which was as awful as it is routine, I'm pretty strongly inclined to disagree with this assessment. Most importantly, I think the idea that there's no such thing as positive rights is not one which is by any means universal in American politics. Further, this analogy seems very bad:

    "le. In that sense it's like a right not to be offended, which must necessarily be enforced by the government silencing people who offend you."

    Well, yeah, I suppose that's true. Except here we're talking about the government restraining people who physically injure or kill you, which is about as widely accepted a legitimate function of government as there is. Indeed, here it seems like you're actually falling into one of the most common and dangerous pro-censorship tropes yourself, in that you're equating speech and violence. You're doing this to argue against a government responsibility[1] to protect people from violence, which just makes it all the weirder too me.

    The rest of it is, sure, truisms, but aside for some janky comparisons with free speech rights, the fact is that we're not talking about free speech, we're talking about an individual right to keep and bear arms. My layman's understanding is that there's a lot less jurisprudence on those rights than there is on free speech.[2] Resorting to truisms, as Obama did, seems a lot more appropriate here than when talking about free speech, where I gather that there's a very extensive body of law providing for a very robust set of protections.

    [1] I'd contend that people who believe in positive rights generally believe those rights create an obligation or responsibility for the government to fill them.

    [2] It's really just two SCOTUS decisions, the oldest about a decade old, with some lower court decisions referring to them as precedent, right?

  5. Chris says

    This is exceedingly well thought out and written, and contacts sharply with CNN's coverage which (from what I saw over lunch) seemed to focus solely on President Obama having shed tears while speaking about Sandy Hook.

  6. Moebius Street says

    Pillsy says

    Except here we're talking about the government restraining people who physically injure or kill you,

    That's not quite right. I mean, everyone really does accept this much. But it's not what Pres Obama is driving for. The goal of gun control is the restraint of people that you believe might have the potential to physically injure or kill you. That seems analogous to a particularly virulent form of prior restraint, and is very much a no-no in First Amendment circles.

  7. Mike says

    I think your fire in the theater thing is overblown here. Regardless of the reprehensible source of the quote, the First Amendment really doesn't protect someone's right to falsely shout fire in a public theater, does it? Using it to generally say "there are limits" is different from saying, you can't shout fire in a theater so you can't say racial slurs on campus.

    On the other hand, I'm a lot more upset about the positive rights in the later part. None of those people he mentions was deprived of their rights to worship, assemble, or [the aconstitutional] right to life, liberty, etc., because it wasn't the government acting on them. It's a fundamental part of Con Law that deprivation of rights requires state action. Maybe I wouldn't have minded so much if he hadn't prefaced this by describing himself as a Con Law prof, but playing fast and loose with these things isn't right. And I say all that as a diehard Obama supporter.

  8. Nate077 says

    How is it that whenever someone invokes the "fire in a theater" trope, they always fail to mention that it's origin has nothing to do with fires in theaters. Sending people to jail for daring to criticize forced government conscription hardly seems like something that should be cheered as prudent.

    @Mike: I'm not sure if it does or not, but I think it should be protected. Someone who shouts fire in a theater is acting like an asshole, but a reasonable person upon hearing that there is a fire in a theater is expected to be able to restrain themselves from stampeding over others in order to escape.

  9. xtmar says

    @Sad Panda

    True, but as people rise in authority they have more freedom to convert their beliefs into action, and there are few jobs with more freedom in this respect than the leader of an organization. While Obama is nominally restricted in various ways by legalities and tradition, the ever increasing deference to the imperial presidency and the occasional naked power grab have greatly weakened the strength of these restraints. Thus, the President is one of the people who should be viewed with the most suspicion when there is a difference between his public rhetoric and his private beliefs.

  10. pharniel says

    That's not quite right. I mean, everyone really does accept this much. But it's not what Pres Obama is driving for. The goal of gun control is the restraint of people that you believe might have the potential to physically injure or kill you. That seems analogous to a particularly virulent form of prior restraint, and is very much a no-no in First Amendment circles.

    This is where we're going to get into things that the 1st and 2nd amendment cover and how they are written. They are categorically different things. An absolutionist reading of the 2nd amendment produces far different results than an absolutionist reading of the 1st due the nature of what each regulates.

    Or rather, you can't be blind and drive a car. It's considered a public safety issue. Recent state level actions suggest you can purchase ammunition and a firearm while blind because the government regulating who can and cannot own a firearm is prior restraint. We get the 'suggest' because various states allow blind people to purchase firearms.

    The 2nd amendment is about owning arms – literally tools designed to murder other human beings – in order to support the capacity to quickly mobilize an ad-hoc military force.

    The 1st amendment is about the government not restricting what people can say, who or what they can worship, state sponsorship of religion and The People having a right to petition the government for redress, even if that petition is "a number of us show up on the government's doorstep" – and even then the last right is qualified "peaceably assemble"

    While 'peaceably assemble' can be frustratingly vague the qualification "..a well regulated militia.." is just fuckall worse from a 'is this a violation of the constitution' perspective.

    And that's the factual context, let alone the political context – Dominated by people who want to ban 'assault weapons' based on a variety of 'features' of a weapon – some vague and pointless as fuck (under rail mount) and others that are potentially incredibly important (large capacity magazines – shooters are vulnerable while reloading and several mass shootings have been stopped when the shooter was talked while reloading). People who have been victims of mass shootings or have empathy for those who have who want to do something.

    This is countered by a gun lobby controlled mass that sees any attempt to study, discuss or suggest that everyone and anyone should not just have the right to own weapons but that everyone should have the right to carry them wherever and whenever they want. This group will not even let us *study* what restrictions might work or not, does not allow (by statute) the CDC to study gun violence and considers even asking questions is considered 'treason'.

    So yeah…good luck with that 'reasoned debate'.

  11. pharniel says

    @ xtmar

    True, but as people rise in authority they have more freedom to convert their beliefs into action, and there are few jobs with more freedom in this respect than the leader of an organization. While Obama is nominally restricted in various ways by legalities and tradition, the ever increasing deference to the imperial presidency and the occasional naked power grab have greatly weakened the strength of these restraints. Thus, the President is one of the people who should be viewed with the most suspicion when there is a difference between his public rhetoric and his private beliefs.

    Much like the 'activist judges' this is the result of the legislative branch abandoning responsibility. They have, should they desire, many tools and powers to rein in an executive branch out of control and the ability to pass clear and precise laws that are not unconstitutional on their face. The legislative branch has chosen not to use those powers and the state needs to run anyway – so the other two branches are left doing the heavy lifting in the absence of congress doing…anything really. They can't even pass a budget reliably let alone confirm appointments.

    That this lack of action and failure to govern dovetails nicely with the political plank of government can't do anything and doesn't work is not an accident.

  12. Jesus says

    Sort of a long view, the government is attempting to remove rights bit by bit. Any time i hear a politician speak, I know he is working towards increasing his power. This especially true when the politician is (metaphorically) standing on a pile of bodies.

  13. GuestPoster says

    I just wish to thank whatever imaginary being might be listening for at least one solid, decent sounding legal post on the internet, by somebody who is, at the very least, not a radical lefty, which admits and understands that the 'individual right' to bear arms is an incredibly new construct in US law.

    Whether it should always have been so is a debate one can have. But it quite simply was not until Heller – and it wasn't until the most recent idiocy of the NRA that people really began to pretend otherwise.

    As for the limitations allowed to the second amendment – I think the major problem is that it's simply not comparable to other 9 of the original 10 amendments. I mean, ignoring that the wording and punctuation make Heller blatantly incorrect (and hopefully likely to be overturned OR making the amendment get amended to say something different), it is the only amendment in the constitution that, when exercised, dramatically increases the chance of death for those around the exerciser every single time. When the right to free speech leads to increases like that, we tend to restrict it. We limit the right to religion to not include sacrificing on altars. Amendments 3, 4, and 5 all explicitly explain how the government (ie: the people) can bypass them. 6 through 10 are similarly unlikely to result in imminent danger, and if they were, I doubt many would hesitate to consider the activity in question to be a reasonable restriction. 2 is an absolute right (by the text), with no way to bypass, and in reality introduces danger to the lives of everybody within miles when used.

    Does that make it a bad amendment? Not my point. But it does seem like that should qualify it for some sort of consideration. There's a reason people so consistently use false equivalences to defend the 'right to bear arms' – there are no ACTUAL equivalences. No other understood right leads to that much death.

  14. GuestPoster says

    @Nate077:

    Probably for the same reason they so frequently misuse that Franklin quote to the effect of: those who would sacrifice essential liberty for temporary safety deserve neither. Out of context, the fire quote makes sense – it would potentially hurt a lot of people to shout 'fire!' and cause a panic in a crowded space with limited exit possibilities. Similarly, the Franklin quote, out of context, sounds reasonable – to forever trade a freedom that matters for a tiny bit of security that'll be gone in a month or so is a bad deal.

    But that doesn't change that the judge was explaining why war protesters should be jailed, or that Franklin was explaining why it was a stupid idea to allow a rich guy to make a one-time donation to the government rather than taxing him as was good and proper. The actual story doesn't make the point folks want to make, even while an out-of-context quote does. And honestly? Most americans don't know the actual history anyways – they ONLY know the soundbite. And that's as true for 3 day old history as it is for 3 century old stuff.

  15. Carl Pham says

    I think what some commenters are missing in noting that the purpose of government is to act on other people for your benefit is that it does not do so in support of any putative "positive rights." The distinction is important: a "right" is something very near absolute, as high a priority as we can get in this vale o' tears. It's a statement that such-and-such good for the individual is so important that we abandon (or nearly always abandon) any of the conventional balancing tests* of his individual good versus someone else's good, or even everyone else's good. That's the key distinction of a right: my right to life is so important that even if it would raise the GDP by 10% this year, and cause amazing prosperity and joy to 300 million Americans, it would be wrong to trade one for the other, or even to contemplate trading it and ask what the balance would be.

    You can certainly argue that defending me from other violent people is one of the most central duties of government, but fulfilling duties is not the same as respecting rights — which is the core philosophical confusion at issue. Balancing is routinely and reasonably part of fulfilling duties. It would be absurd to suggest the government is required to spend all of its tax money, if necessary, defending me from violent criminals, or required to impoverish the nation. We balance my good against the good of others, quite reasonably. A right is different precisely because the government may not (or almost never may) consider balance when respecting it. That is also why "positive" rights make no sense, because "positive" rights necessarily require balance if they are not to become absurd, as Ken White points out here (e.g. should the government impoverish the nation to feed me, extend my life, protect me). A "negative" right doesn't give this problem, because it requires only forbearance, the lack of action, and so it cannot do harm to others, or cost them — meaning reduce their utility below the existing status quo — and there is therefore no harm or cost to balance. At worst, inaction forecloses some future you've imagined which is much brighter if action is taken — but the absence of a theoretically possible future profit is not the same as a certain future loss, Washington budget accounting bullshit notwithstanding.
    ———–
    * I don't mean balancing between rights, where rights necessarily conflict. I mean balancing between mere goods. Of course, if you believe in "positive" rights, you are doomed to balancing all over the place, all the time, and the distinction between a right and a good becomes pretty much null.

  16. xtmar says

    @pharniel

    I agree in large part, but some of it is that the executive has decided to interpret Congressional lack of action as authority to proceed under its own discretion, rather than a decision by Congress to leave things as they are.

    You can see this clearly in the context of immigration. Cubes has passed a set of immigration laws, but most people think they should be reformed, either to be laxer out more stringent. However, because nobody can generate a decent consensus about what to do nothing gets done, which some people, including the President, see as a signal that Congress is broken and that he should act on his own authority. However, I think it's better viewed as a signal that immigration is a fraught issue on which there are deep divides, and thus Congress prefers to keep the status quo in place, mangled as it is, rather than make changes to it.

  17. Moebius Street says

    Pharniel and GuestPoster still aren't seeing the prior restraint distinction – my owning a gun has ZERO impact on your safety. We can't meaningfully talk about an increase in danger to you until I pick up that gun and point it at someone.

    So I'm keeping a gun – it's sitting in my house right now. And I occasionally bear it as well, since I have a carry permit. Contra GuestPoster's comment "when exercised, dramatically increases the chance of death for those around the exerciser every single time", as I sit here in front of my computer typing this, the fact that I'm exercising my 2A rights by keeping a gun in my home is not coming anywhere close to increasing danger to those around me. And the vast majority of other gun owners are similar.

  18. Total says

    It's a throwaway line from a case that is now universally recognized as wrongly decided. It's a line about rhetoric, not law. Using it doesn't send the signal "I will propose principled, text- and history-based exceptions to the rights conferred by this amendment." It signals "exceptions to rights can be shaped by the whims of the majority and by the fears of the moment." That's a foolish message in this instance.

    Oh yeesh. The entire American public is aware of the case and how it was wrongly decided? Please — it's like George Washington cutting down the cherry tree. People know what that means and there are only about eight historians persnickety enough to come along and complain that Washington didn't really cut down the tree. Don't be one of those folks. Obama's reaching for a bit of cultural knowledge to make a point, and for that it works perfectly fine.

    A fair amount of the rest of your analysis runs into the same larger issue illustrated above: Obama's a better writer and speaker than you are an analyst of same (Like here: We cherish our right to privacy, but we accept that you have to go through metal detectors before being allowed to board a plane. He's not invoking the TSA in the minds of people listening, he's invoking 9/11, and you missed it.)

  19. Jhanley says

    Guestposter,
    "the wording and punctuation make Heller blatantly incorrect"

    I'm not a gun owner and I do have some background in constitutional law. Would you care to explain rather than simply assert?

  20. Jhanley says

    I didn't realize that getting scanned at the airport was the price of a civilized society. So civilization would collapse if we taking pictures through people's clothes?

  21. Moebius Street says

    @Jhanley – yes, it also irks me that Obama strawmanned this point. I mean, it's no longer as simple as a metal detector, as it implies. He elides the parts about the pornoscanners and the groping.

  22. AH says

    @Jhanley: Yep, you heard it here first! Never mind that any number of times it's been tested, getting weapons past that checkpoint is a joke. If I wasn't being groped every time I take a flight all of civilization would collapse.

  23. Jordan says

    @pharniel

    This is countered by a gun lobby controlled mass…

    I love that you follow up this bit by bemoaning a lack of reasoned debate.

  24. DRed says

    Obama's reaching for a bit of cultural knowledge to make a point, and for that it works perfectly fine.

    Amen. There are, what, 100,000 people in the country who could tell you where that line is from and have an opinion on the correctness of the decision. It is a well worn trope, but to the extent it signals anything to your average person on the street it's that the speaker is about to propose a limitation on a right.

  25. DRed says

    I mean, it's no longer as simple as a metal detector, as it implies. He elides the parts about the pornoscanners and the groping.

    And the bit about none of it really working to make the public safer.

  26. says

    @Ken White:

    How do you determine what rights your right to life gives you, with respect to what the government is obligated to do to me?

    I sit down and think about the sort of things that you might do which could threaten my life, and what it would cost for the government to put a stop to them, and whether the government doing them would violate any of your rights. Then I make use of the political process laid out in the Constitution, and the rights guaranteed by it, to try to get the government to do the things to you that I think it is obligated to.

    You, of course, are absolutely entitled to use those same processes and rights to try to stop the government from doing any of those things to you, or to try to get it to do other things to me that you think are necessary to protect your rights.

    I'd say that the best first step for both of us is to do more or less what we're doing now, and try to convince people that we have the right of it (while, ideally, being at least somewhat open to others convincing us that we're wrong). That's why I think it's so important that the Constitution provides such strong protections for freedom of speech.

  27. Low-Grade Coolant says

    So, for the first part of that, I was nodding along. Good, good analysis about rhetoric… and then… "you don't have a right for the government to do anything to other people."

    @Ken White, I think you missed the part where the purpose of the Leviathan has been to procure security against our foes and derive order from the Hobbesian state of nature, and that has been the basis on which pretty much all modern governments were formed. "The right to have the government do things — shooty things — on your behalf" is the entire point. Yes, yes, there has also been much noise about self-determination and all that rot — which we won by violence and maintained by violence. Seriously, you're in America, did you forget your history? Nowadays, we use diplomacy a bit more often than we did before, and hopefully we will continue along that trend, but that doesn't mean that the Constitution or any law or so-called "right" has any power that does not in the end derive from the authority of the barrel of a gun.

    If the government does not have the authority to kill or detain people in the name of protecting me, then it should be dissolved, because then we have neither military nor police force who are capable of legally acting on their charges, and no law we make is anything but airy exhortations because there is no one making sure it happens, and your entire profession has neither power nor ability to restrict power, aside from what charisma and suasion Nature and Nurture have arrogated to you. I think almost everyone can agree that the government should be charged to use a lighter touch in essentially every respect of exercising its authority, and should be charged to bother less people about less things, and that we might even find some current exercises of its authority unconstitutional if we were to seriously look at them, but we are still in the end debating and choosing where and when to point a gun.

  28. Ted H. says

    @total

    Obama's reaching for a bit of cultural knowledge to make a point, and for that it works perfectly fine.

    to demonstrate his, and the 'culture's,' ignorance of rights and constitutional law.

    The entire American public is aware of the case and how it was wrongly decided?

    The point is that those who study and read law nearly universally recognize this, and it's astounding that Obama would utter utter such idiocy in the same breath as he invoked his con law prof bona fides.

  29. Bloviator says

    @ Total
    "A fair amount of the rest of your analysis runs into the same larger issue illustrated above: Obama's a better writer and speaker than you are an analyst of same…"

    I would argue that the President is better at rhetoric, and specifically sophistry. You're right that those statements about metal detectors and make fast and easy connections in people's minds. On the other hand, it is better that we know what those words really mean, because making those fast and easy connections are also a great way to make a person stop thinking critically. Ken's just asking us to put these words into a current context and really think about what it means, not just what the POTUS wants it to mean:

    We cherish our right to privacy, but we accept that you have to go through scanners, be subject to pat downs, random interrogations, all of them practiced ineffectively before being allowed to board a plane, as long as you're not on a secret list preventing you from boarding in the first place.

    I mean, think about it — we all believe in the First Amendment, the guarantee of free speech. But we accept that you cannot yell "fire," in a theater, except that this argument was used to justify imprisoning someone who peacefully protested a war. We understand there are some constraints on our freedom in order to protect innocent people, but please don't think about whether or not those constraints will be appropriate of even effective.

    Both examples are times where rights have been taken, and since giving them back is becoming exceedingly rare, we should be skeptical about giving them up.

  30. says

    The goal of gun control is the restraint of people that you believe might have the potential to physically injure or kill you.

    That's quite true. It's hardly limited to gun control, though, since it also applies to landmine control, chemical weapon control, surface-to-air missile control, car control, and so on.

    That seems analogous to a particularly virulent form of prior restraint, and is very much a no-no in First Amendment circles.

    Well, yeah, but we're talking about a whole other Amendment here, one which protects a very different set of rights, for a different set of reasons. I just don't see much use in drawing analogies to the First Amendment, and think that equating speech with violence (and offense with death or injury) is going to do much more to play into the hands of censorious asshats than it will do to protect an individual's right to own firearms.

  31. GuestPoster says

    @JHanley:

    a) Do realize that those body-imagers are not metal detectors, which is what he cited, and which is a fairly minimal invasion of privacy compared to the porno-scanners in exchange for a fairly large increase in catching things that probably shouldn't be on planes (ie: guns).

    b) "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." Note the punctuation and wording. The final comma separates the phrase 'the right of the people to keep and bear Arms' from the phrase 'shall not be infringed'. Given the structure of the sentence, 'the right of the people' is the ONLY part that cannot, gramatically, be acted on by 'shall not be infringed'. The comma that separates them makes that true. Meanwhile, 'being necessary to the security of a free State' lacks a subject – we can tell that from the words 'being necessary', as being (the verb) isn't acting on anything in that clause. This leaves 'A well regulated Militia' as the ONLY part of the sentence that could possibly be logically and gramatically linked to 'shall not be infringed', with the other two clauses describing what 'a well regulated Militia' is according to the author. None of this has anything to do with what one would like it to mean, or what the founding fathers in their myriad writings and speakings said they had hoped it would end up as – it is the simple text and grammar of the sentence.

    @Moebius: and you are missing the reality of the situation. Your gun DOES make me less safe. Now, the reduction in safety drops, dramatically, as distance increases – probably something along the lines of gravity, if one cared to really fit a curve to it, and unless you just happen to be next door, or down the block, the reduction in my safety is nearly zero from your gun… but then it's rather higher from somebody else's. Critically, it turns out that the probability of being shot when there are zero guns available is zero – it's simply impossible. The probability goes up as more guns become available. It goes up further as more people become willing to use guns that are available. It goes up yet more as people are willing to steal guns, or willing to fire guns in areas where another human exists within 2 miles, or what have you. This is well studied and proven at this point – the existence of weapons decreases the level of safety for those around them in a statistically significant and meaningful amount. The same arguments, of course, remain true of knives, grenades, nuclear bombs, and leather belts coated in broken glass – but none of those have the combined availability and lethality of conventional firearms, and so we can pretty safely avoid considering them in depth.

    You may be ok with endangering those around you, or you may wish to continue to pretend that you do not.. But it really doesn't change that you DO endanger everybody around you by owning your weapon, and that they may take issue with this, and rightly so. This is, again, simply the reality of the situation, and it is a reality not shared by the other rights defined in the first 10 amendments. You are, indeed, trying to make a prior restraint distinction – but you're making a false equivalence to do it. Gun ownership (and use) really, really, really, really is entirely different from speech.

  32. goatlegs says

    Wherein Ken attempts to Fisk an Obama speech, ends up flailing about discussing framing and messaging minutiae, but does manage to carefully re-stuff some old strawmen.

  33. pharniel says

    @Moebius Street

    Pharniel and GuestPoster still aren't seeing the prior restraint distinction – my owning a gun has ZERO impact on your safety. We can't meaningfully talk about an increase in danger to you until I pick up that gun and point it at someone.

    Or clean it improperly, or someone in your household uses it improperly. The failure state of speech is hurt feelings. The failure state of an accidental firearm discharge is a piece (or pieces) of metal thrown through the surroundings. You sitting on your couch saying whatever you want never gets to me if I'm not there unless you are unreasonably loud. You having a firearm accidentally discharge has the potential to directly impact your neighbors unless you happen to live on a large plot in an uninhabited area.
    Someone having a firearm in their home introduces entire sets of potentially fatal failure states to those around them.

    So I'm keeping a gun – it's sitting in my house right now. And I occasionally bear it as well, since I have a carry permit. Contra GuestPoster's comment "when exercised, dramatically increases the chance of death for those around the exerciser every single time", as I sit here in front of my computer typing this, the fact that I'm exercising my 2A rights by keeping a gun in my home is not coming anywhere close to increasing danger to those around me. And the vast majority of other gun owners are similar.

    Studies continue to show the risk of suicide increases dramatically for firearm owners. We're not really allowed to produce any other studies because, again, by law studying firearm violence is blocked by the people tasked with studying health in this country. I'm not sure you can so easily dismiss that claim.

  34. Brian Z says

    @GuestPoster

    So comma parsing means:
    'A well regulated Militia shall not be infringed'?

    Brilliant! Now tell me: What does the third amendment mean?

    No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

  35. Jordan says

    We're not really allowed to produce any other studies because, again, by law studying firearm violence is blocked by the people tasked with studying health in this country

    You and every other public health professional on the planet are perfectly free to study gun violence.

  36. Guy Who Looks Things Up says

    @Moebus Street

    So you're a Good Guy With a Gun who will never, ever misuse it because you have no capacity whatsoever for evil and never, ever misinterpret another person's intentions.

    If you believe that you're denying your own humanity.

  37. Jhanley says

    Guestposter,

    You're putting a lot of weight on late 18th century punctuation which was not fully standardized and that by today's standards makes for an entirely incoherent sentence (similar to something my students might write). And your explanation leaves the middle clause–the right of the people to keep and bear arms–floating in space, disconnected from th

    More plausibly the well-regulated militia part is explanatory of purpose. It's like a "Wherefore" in a resolution. It's odd, being the only amendment that has such an explanatory clause.

    As to metal detectors, that's fine, we can go with that. So civilization will collapse if we don't have metal detectors at airports? I'm still a bit dubious.

  38. Abu Nudnik says

    It needs to be said again and again that rights are not given, guaranteed, or protected by any document. Those would be privileges.

  39. None Given says

    "Gun ownership (and use) really, really, really, really is entirely different from speech."

    I agree. Gun ownership is more important than speech.

  40. Moebius Street says

    @NoneGiven – I think we can make a good argument that 2A is more important.

    1A says "Congress shall make now law…"
    2A says "…shall not be infringed [period]".

    The wording of 2A seems a lot more absolutist to me. Not that any court recognizes this, but it's what I get from the text.

    @GuestPoster

    Your gun DOES make me less safe. Now, the reduction in safety drops, dramatically, as distance increases

    If we're going to follow this logic, why can't I fret that your presence, as another human potentially carrying deadly viruses and bacteria, makes me less safe? If it weren't for the population pressure, all these people in close proximity, the chances of spreading ebola or H1N1 flu or something is impacted. I'm guessing that in rough order of magnitude, the danger that I pose in either case is equivalent (my chances of gun homicide are lower than the baseline because I have no mental health problems, no criminal record, etc.).

    I don't think you can reasonably block me from a state that, on its own, doesn't pose any danger. You're worrying about actions – intentional or accidental discharge of a weapon – but trying to prevent those actions by banning a status, one which is a necessary state to exercise a right that most people agree (sorry for appeal to popularity :) ) is a natural right: the right to defend oneself.

  41. says

    @Moebius Street:

    If we're going to follow this logic, why can't I fret that your presence, as another human potentially carrying deadly viruses and bacteria, makes me less safe?

    Fret all you want. What action do you think your fretting (or, more precisely, the risk you're fretting over) would justify the state taking? How might it affect the rights of others if it took that action?

    To be slavishly literal-minded, what if the state made it illegal for GuestPoster (and everybody else) to carry vials full of deadly viruses and bacteria around unless they were careful to transport them safely? Would that be OK?

  42. says

    @Moebius Street:

    I don't think you can reasonably block me from a state that, on its own, doesn't pose any danger. You're worrying about actions – intentional or accidental discharge of a weapon – but trying to prevent those actions by banning a status, one which is a necessary state to exercise a right that most people agree (sorry for appeal to popularity :) ) is a natural right: the right to defend oneself.

    Apologies for the double reply; this seemed important on second reading and I didn't want you to think I was strawmanning you.

    You may well be right. I'd think it's especially likely that you're right if you're an adult with a clean criminal record, for instance, and if that's the case I think it's great if you want to exercise your right to own a firearm. It's a pretty safe assumption that you're not going to shoot the place up either intentionally or unintentionally. If, on the other hand, you had a history of knocking over liquor stores, I would be pretty damned uncomfortable with you owning a gun because you'd have already demonstrated you can't be trusted with them.

    The actual gun control policies involved here are about the steps the government can take to make sure that you can buy a gun while Mr Armed Robbery cannot, and to what steps the government can take to prevent people with histories of mental illness from owning guns. (I gotta say, I am not entirely sanguine about the mental illness part myself.)

  43. FYTW says

    @pharniel:

    We're not really allowed to produce any other studies because, again, by law studying firearm violence is blocked by the people tasked with studying health in this country.

    Yes. And the reason why the people tasked with studying public health in this country are, by law, blocked from studying firearm violence is because, beginning in the 1980s and 1990s, the CDC adopted a political/editorial position of hostility to private firearms ownership, and began using its research budget to fund anti-gun junk science (such as the infamous Kellerman "2.7 times" study) and agitprop (such as Injury Prevention Network newsletters advocating for the picketing of gun manufacturers, and for campaign finance reform "to weaken the gun lobby’s political clout").

    In other words, the people tasked with studying public health in this country acted, with respect to this subject, like political activists rather than dispassionate researchers, and so Congress yanked their funding.

  44. WhangoTango says

    @pillsy:

    "What action do you think your fretting (or, more precisely, the risk you're fretting over) would justify the state taking?"

    I think maybe you've forgotten that you're the one who started this conversation, with "…here we're talking about the government restraining people who physically injure or kill you, which is about as widely accepted a legitimate function of government as there is."

  45. WhangoTango says

    And the discussion of "positive" and "negative" rights is missing Ken's actual point, which is that we are–yet again–seeing a Certain Type of reasoning being applied in a discussion of Constitutional rights and their free exercise. And that if we were talking about the First Amendment, or the Fourth, or the Sixth, everyone would say "that's clearly wrong!", but this is about zomgevilguns and so everyone's nodding their heads and saying "yes, that's very true".

  46. Zrakoplov says

    @pillsy No, the quote was taken directly from John Lott himself during a radio interview. But I can guess that you don't believe Mr. Lott anyway. Gun people always lie, don't they?

    The Obama/Liberal view on guns (or weapons in general) can be summarized easily: you are a slave to the government, and slaves are never allowed to own or possess weapons that would threaten the master.

  47. AH says

    @pillsy: You do know that it's already illegal for a felon to purchase, own, or possess a gun, right?

    My non-lawyerly understanding is that this is unequivocally acceptable because due process has occurred before the liberty is revoked.

  48. GuestPoster says

    @Pillsy

    There's also the simple fact that we, ya know, require vaccinations for students in school for EXACTLY the reason that a person being a germ factory is harmful to others, even if it is simply their 'state of being'. When people are even more sick, we curtail their freedom of travel and quarantine them, as we did during the Ebola outbreak. If sick, you get treated, or sequestered, or otherwise dealt with. And it doesn't need to be a physical illness, or one that you have any control over – if mentally ill, you may well be forcibly confined to a mental hospital for the rest of your life, with no trial, and no hope of change. And it doesn't need to be a direct danger to others – if you have asthma, you can't join the military, because you might have an attack and put your fellows at risk during a hazardous moment. You can be much less dangerous, statistically, than a single gun owner with no known criminal proclivity, and yet the threat you pose will be treated as exactly that – a threat to the public welfare.

    That's the thing about guns, which is born out in this conversation as elsewhere – those who most fervently support them make false equivalences because there are exactly zero good comparisons to make. There isn't a single other thing in the US that is that deadly and that poorly dealt with. Those who support reducing gun ownership and use rights may well be wrong, but at least they're able to make honest arguments to support their positions. Heck, even the 'good guy with a gun' argument is entirely flawed – every single criminal in the existence of forever was a law abiding citizen… until they weren't.

    The second amendment is mutually incompatible with every other right even hinted at in the constitution – it is utterly impossible to exercise free speech, or religion, or prevent soldiers from quartering in your house, or demand a jury trial over a matter of $27.15, when somebody points a lethal device at you and suggests that they want their way… or else. It was guns that decided the limits of the tenth amendment. Support the second amendment as written, or as now imagined by Scalia et al. Or fight against it as written, or as currently imagined. Love it or hate it. It really is an entirely different beast than the rest of the constitution, and deserves consideration in that light. There are no equivalences to be drawn, there is nothing else in American life that comes close to the right to own and operate a device designed specifically to end life with little or no monitoring or regulation. It needs to be discussed on its own, not as a stand-in for some other pet issue.

    As has sometimes been said – the beginning of an honest conversation is admitting that facts matter. And the facts are that guns are not speech. They are not cars. They are not disease. They are not religion, or nudity, or money. They are instruments of death – that is their designed and intended purpose.

  49. says

    @WhangoTango :

    I think maybe you've forgotten that you're the one who started this conversation, with "…here we're talking about the government restraining people who physically injure or kill you, which is about as widely accepted a legitimate function of government as there is."

    Nope. It just appears that Moebius Street offered that as an attempted rebuttal to that line of argument, and I'm hoping they'll clarify why they think that particular example is so obviously absurd.

    @WhangoTango:

    And that if we were talking about the First Amendment, or the Fourth, or the Sixth, everyone would say "that's clearly wrong!", but this is about zomgevilguns and so everyone's nodding their heads and saying "yes, that's very true".

    I don't think that's necessarily the case, especially not if we're talking about the Fourth Amendment. Maybe it should be, I suppose, but the idea that people are going to think any specific new provision for searching people or seizing property is going to automatically be illegitimate just doesn't track with my experience at all.

  50. Jordan says

    The second amendment is mutually incompatible with every other right even hinted at in the constitution – it is utterly impossible to exercise free speech, or religion, or prevent soldiers from quartering in your house, or demand a jury trial over a matter of $27.15, when somebody points a lethal device at you and suggests that they want their way

    This is fundamentally dishonest. The second amendment does not grant the right to point a gun at others.

    They are instruments of death – that is their designed and intended purpose.

    And yet, strangely enough, millions of people use them everyday without injuring another human being.

  51. says

    @AH:

    You do know that it's already illegal for a felon to purchase, own, or possess a gun, right?

    Yes, I was bringing it up because that's a particularly popular gun control measure, and one which the background check system the President was tweaking via XO is intended to enforce. And it seems that one of the reasons that it's popular is, indeed, the sense that the need for a felony conviction provides due process protections, though I don't know if the courts have ever ruled on the matter.

    That being said, if someone suggested that convicted felons shoud, say, lose their rights to speak freely, I'd flip right the heck out over it, and I expect everybody here would flip out right beside me. Different rights work differently.

  52. says

    @GuestPoster:

    The second amendment is mutually incompatible with every other right even hinted at in the constitution – it is utterly impossible to exercise free speech, or religion, or prevent soldiers from quartering in your house, or demand a jury trial over a matter of $27.15, when somebody points a lethal device at you and suggests that they want their way… or else.

    This is very silly. Second Amendment rights aren't incompatible with every other right just because they facilitate certain kinds of criminal activity. That kind of argument proves way, way too much because it actually does, ironically enough, apply to lots of other rights as well.

  53. says

    If any of the anti-gun-rights people here are genuinely interested in understanding why pro-gun-rights folks are so intransigent about what at first sight might seem "reasonable" restrictions, my essay "Destroying the Middle Ground" might prove illuminating. It explores what history might look like if the First Amendment had been treated like the Second:

    http://esr.ibiblio.org/?p=4912

  54. Sky Thibedeau says

    Those who would ignore or overturn the Second Amendment would surely do away with the Thirteenth.

  55. Dants says

    There are already innumerable laws and regulations related to gun use and ownership, so I reject your implication that we don't have enough.. We have too many.

    As for suicide…interesting liberals think it is a right, until it comes to suicide by gun. Suicide by doctor for living too long, etc…oky doky. Also interesting that suicide in Japan is quite high, with virtually no guns. Franky, suicide isn't a consideration for or against gun ownership.

  56. max says

    law professors have a habit of taking what they think the law should be and portraying it as what the law is.

    In fairness to law professors I have noticed that when a law professor (or actually anyone) states what the law is, many listeners have a habit of hearing it as the speaker stating their belief in what the law should be. I am not certain which came first, but it makes it very hard to argue for changing the law when a statement of what the law is now must be followed by a 2-hour disclaimer about how that statement is not an endorsement of the status quo and you really would rather be tying to find a good alternative, but all your time for the issue has been spent talking about how you aren't supporting the law-as-it-is.

  57. Alpheus says

    I would like to make a couple of observations.

    First, it has been alleged that one of the purposes of government is to protect individuals from violence. On the contrary: courts have consistently found that the police have no obligation to protect any one person. They only have a general obligation to protect everyone collectively.

    This effectively means that it's each individual's responsibility to defend themselves.

    Second, this notion that the damage to free speech is just hurt feelings ignores the long history of death, ranging from angry mobs to revolutions, civil wars, and even world conflict. Indeed, what would the world be like without John Locke's treatises on government, or Uncle Tom's Cabin, or the Communist Manifesto, or Mein Kampf, just to name a handful of documents that have changed the world, for better or for worse?

  58. ElSuerte says

    Posts like this one are why I want Ken to have my babies!

    Seriously though, I appreciate that you had a paragraph about the intersection of mental illness and gun rights. That prohibition was one of the things that kept me from getting help for my depression for a long time. Even though I didn't own a gun at that point in time, I didn't want to needlessly give up a constitutional right.

  59. says

    GuestPoster: To add to Jhanley's comments, I question your reliance on punctuation not just because 18th century punctuation wasn't standardized, but because the Second Amendment itself lacks standardized punctuation. The states ratified different versions with varied comma placement (and capitalization/spelling differences, omitted for brevity).

    No commas (New Jersey): "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."

    One comma (South Carolina, Pennsylvania, New York, Rhode Island): Add a comma after "State".

    Two commas (Maryland, North Carolina): Add commas after "State" and "Arms".

    Three commas (Delaware): Add commas after "Militia", "State", and "Arms".

    (The remaining ratifying states, New Hampshire, Virginia, and Vermont, didn't spell out exactly what version they ratified.)

    You get the point: comma number and placement varied widely in what states ratified as the Second Amendment. No one consequently questioned the validity of the Second Amendment. So it's wrong to ascribe meaning to comma placement in any particular form of the Second Amendment (let alone to select the sole comma placement scheme that, under modern interpretation, could conceivably apply "shall not be infringed" against the "well regulated Militia").

  60. Dylan says

    It's posts like these that make me suspect that the notion of "rights" is just the wrong way to analyze anything ever. I don't claim to really understand what is exactly meant by the idea of a "right," but that's probably because it's just code for vague metaphysical hand waving. Does the right to bear arms apply to nuclear weapons? See how the question doesn't make sense? Because the guys who wrote it couldn't have imagined nuclear weapons, so there's just no meaningful way to apply that axiom to the question. So a few judges decide the answer they want and make up a rationale and call it scholarship. Which, fine, what else are you going to do? But the whole idea of things being rights just makes that process harder.

    I guess I also wish that people would complain about the awful wording of the constitution more often. None of this would be an issue if these guys hadn't decided to hard code vague crap like the second amendment into the constitution. Regardless of how you come down on guns, you have to admit the wording is god awful.

  61. noddin0ff says

    Was enjoying the post until you slid solidly from reason into rhetoric

    "The TSA offers security theater, not security. When we give up our right to privacy to be groped and scanned, we're giving it up so that politicians can say they are doing something, not to make ourselves safer. "

    While I tend to agree with your general assessment of the effectiveness of the TSA, the argument is rhetorical and it's dismaying to see you use rhetorical argument to critique perceived rhetoric…

  62. WhangoTango says

    @pillsy:
    "the idea that people are going to think any specific new provision for searching people or seizing property is going to automatically be illegitimate just doesn't track with my experience at all."

    Apparently you haven't been following the discussions over wiretapping and metadata collection, then, because the objections to those activities come directly from the Fourth Amendment.

    "It just appears that Moebius Street offered that as an attempted rebuttal to that line of argument, and I'm hoping they'll clarify why they think that particular example is so obviously absurd."

    They did, in their first response to you. It's the bit about "prior restraint". Look that up; it's a term with a specific meaning in relation to Constitutional law.

  63. deadrody says

    As has sometimes been said – the beginning of an honest conversation is admitting that facts matter. And the facts are that guns are not speech. They are not cars. They are not disease. They are not religion, or nudity, or money. They are instruments of death – that is their designed and intended purpose.

    And yet, here you are being completely dishonest.

    Cars are more deadly than guns. By far. Yet you exclude them because death is not their intended purpose.

    Alas, the same is true of guns. Before the advent of gun laws, there was FAR less gun violence because their intended purpose is self defense and the PREVENTION of violence.

    That's like saying the only intended purpose of atomic bombs is utter and complete destruction. And yet, the only two ever used were used to end a war and prevent millions of deaths. And then the thousands of other atomic weapons – at least on the part of one side, and in most cases both sides – to PREVENT nuclear annihilation.

    Yes, facts and language matter. You would do well to abide by your own advice.

  64. ThatThirstyRando says

    This is well studied and proven at this point – the existence of weapons decreases the level of safety for those around them in a statistically significant and meaningful amount. The same arguments, of course, remain true of knives, grenades, nuclear bombs, and leather belts coated in broken glass – but none of those have the combined availability and lethality of conventional firearms, and so we can pretty safely avoid considering them in depth.

    I agree. We should enact common sense knife control laws.

    After all, every single kitchen in America contains multiple of them, and they "decrease the level of safety for those around them in a statistically significant and meaningful amount" by their mere existence. Think of how unsafe Williams-Sonoma stores must be!

    I understand you tried to wave away this obvious consequence of your argument by saying that knives lack the "combined availability and lethality of conventional firearms" but I am unable to see how that statement is sustainable. As 13% of homicides in the USA are via knife, the decrease in "level of safety" resulting from their existence sure seems "statistically significant and meaningful" to me.

  65. Jamie says

    This was a disappointingly obtuse article. From a legal standpoint you're probably 95% correct (though arguing that a law professor isn't a good authority on legal matters is… amusing at best. I guess my physics professor isn't a good authority on matters of physics either? Using that argument you could get any sort of evidence thrown out of a case because you're relying on an "expert" telling you that the evidence is what it is and says what it says and according to you experts can't be trusted!), but basically what you did is take a speech that was designed to quickly communicate a legal situation that's so complicated that many people with advanced degrees in the subject don't agree with each other with a bunch of laypeople and complain that it wasn't 100% accurate and therefore Brobama sucks.

    If you want to complain about something, complain about how he's using executive orders to change the way online transactions work rather than using them as he could, to close certain military bases which may (or may not) be holding people without a trial because they're "too dangerous to try." Complain about the way he has aggressively attacked marijuana dispensaries or how he has been generally poor in negotiating with congress. Lots of legitimate reasons he's a C+ president at best. This speech? One of the reasons he's a D president at worst.

  66. Argentina Orange says

    @ pharniel

    The failure state of speech is hurt feelings.

    There is a radio station in Rwanda that would disagree.

  67. Dennis Nicholls says

    Ken, it's good to include a short statement in such articles about WHY the courts are just now litigating the meaning of the 2nd Amd. There were essentially no gun control laws as such prior to 1968. Earlier gun control laws during slavery and Jim Crow were of the ilk of "blacks can't have guns". The NFA of 1934 was created to put a transfer tax on mobster-preferred guns so they could be prosecuted for tax evasion. The 1968 act was the first gun control law of general applicability. Hence all gun control law challenges are of relatively recent vintage.

  68. Cyto says

    Moreover, at the risk of calling down ten thousand butthurt commenters, there's no colorable basis to view the Second Amendment as absolute when courts have recognized exceptions to the rights conferred in other amendments.

    OK Ken, I'll bite. This is fundamental beef with legal scholars. Because of the expediency of having a government that actually functions the way we want it to, we operate from legal precedent and "stare decisis", even when these directly contradict the black letter of the law. Leaving aside the arguments about the nature of the constitution granting rights vs natural rights, with the rights protected under the bill of rights there is clear and unambiguous restrictions on the government's reach.

    In the case of the second amendment, it clearly prevents the government from placing any restrictions on weapons. While I think everyone agrees that this is terrible public policy in the modern age, that's what the law says. So not only are these new proposals clearly and unambiguously unconstitutional, so are all of the restrictions that everyone supports – like restrictions on automatic weapons or hand grenades or artillery. The amendment is perfectly clear – it lists absolutely no exceptions, so without further amendment the constitution prohibits all federal interference in people's ownership of weaponry.

    The same could be said for pretty much everything in constitutional law. We have the widely accepted obscenity exception to free speech. Except that there are no caveats whatsoever to the protection on free speech. It doesn't really matter if you "know it when you see it", "shall make no law" is clear and absolute. If you want "unless I find it obscene", then you need an additional amendment to add that caveat. The same is true for the second amendment with all of the perfectly obvious restrictions that we'd like on people keeping and bearing arms.

    It isn't really pedantry to expect that people who interpret the law for a living would actually look to the black letter law first, before looking to further interpretations in prior decisions by the courts. When the law states clearly and unambiguously that gun ownership is a protected right, "but I think it is really, really important to restrict those rights" is not a legal argument. It is a policy argument that should be employed in the amendment process.

    But I fully recognize that I'm tilting at windmills. Nobody is the least bit interested in going with what is actually written in the constitution over "compelling governmental interest", because it is highly impractical – particularly at this stage. Still, it would be nice if everyone involved publicly acknowledged that "constitutional" has no meaning any more and that we govern based on "what the jurists on the court think is good policy".

  69. Fred Mant says

    " but we understand that is part of the price of living in a civilized society. "

    Actually, getting screened for guns and other weapons as we board our flight is the price we pay for living in an UNCIVILIZED society.

    What a baffoon.

  70. Lagaya1 says

    That "crowded theatre" bit is so trite. Is there really anything you could yell in the theatre without getting arrested? Try yelling "Allah" just once and see what happens.

  71. Dylan says

    @deadrody

    That's like saying the only intended purpose of atomic bombs is utter and complete destruction.

    Wow, that's some powerful stupid right there. It says it. Right in the name it says it. "Mutually assured…."

    The idea that nukes prevent destruction (total) destruction at all rests on some assumptions of human psychology that are dubious at best.

    Also this

    And yet, the only two ever used were used to end a war and prevent millions of deaths.

    Is some serious gymnastics. I hope you stretched, or you'll be feeling that one tomorrow. (Also, millions? Nope.)

  72. Mike L says

    This criticism strikes me as pedantic and uncharitable; I didn't understand Obama as purporting to make a legal argument that there is a constitutional right to not have other people own guns. I took him to be saying that the right to bear arms is not absolute, and that in determining the contours of that right we need to consider the tradeoffs. Both of these are noncontroversial. Yes, he used the word "right" a little loosely, but I think that is attributable more to rhetorical license and the audience he was addressing than bad faith or lack of intellectual rigor.

  73. Brian Z says

    The founders didn't know about nukes but they definitely knew about cannons. Does anyone know of any good founding-era writings, laws, or debates which could shed light on whether they considered warships or artillery pieces to be either (a) categorically the same as "arms" and/or (b) subject to restriction. I'll keep in mind that things may be ambiguous or contradictory (the generation that gave us the First Amendment was also the generation that gave us the Alien and Sedition Acts).

    On a related note, does anyone know the history of regulation of explosives and whether that was considered contentious in a 2A way? Pre-1850s powder caches, or post-1850s high explosives?

  74. Guy Who Looks Things Up says

    @Fred Mant

    If you're going to call somebody a buffoon, you shouldn't misspell it.

    It makes you look stoopid.

  75. tweell says

    @Dylan

    A simple exercise that us stupid people came up with, a superintelligence like you should have no problem. Name the countries that have been invaded while having nuclear weapons. Name some countries that have been invaded that didn't have nuclear weapons. Extra credit: name a country that gave up their nuclear weapons and were subsequently invaded.

    If it's crazy but works, it isn't crazy.

    I find your mind limited in mental gymnastics. Here's a primer from a stupid person to help. Look up Operation Downfall, the invasion of Japan. Wikipedia has a decent article, and you can head directly to the predicted casualty section. If that doesn't horrify you, then think about the alternate Navy proposal, to starve Japan out. I've talked to some Japanese friends who went through WWII (yeah, I'm old as well as stupid) and they believed that ten million dead would be the lowest Japanese total before capitulation. After the surrender, the US started feeding Japan, and it took over a year before the food ration went up from 1500 calories to 1800 calories.

  76. pharniel says

    @ThatThirstyRando says

    I agree. We should enact common sense knife control laws.

    After all, every single kitchen in America contains multiple of them, and they "decrease the level of safety for those around them in a statistically significant and meaningful amount" by their mere existence. Think of how unsafe Williams-Sonoma stores must be!

    You know that most states do, in fact, have extensive laws about knives. How long one can be to carry concealed, which features are always illegal no matter what (gravity opening being one of the most common), the maximum length that can be carried openly.

    @Alpheus says

    I would like to make a couple of observations.

    First, it has been alleged that one of the purposes of government is to protect individuals from violence. On the contrary: courts have consistently found that the police have no obligation to protect any one person. They only have a general obligation to protect everyone collectively.

    This effectively means that it's each individual's responsibility to defend themselves.

    The state's job is to provide security and protect my property, including my life. This is so basic a function that libertarian's consider it the only legitimate function of government. If the State is not doing that what, exactly, is the purpose of the state? nothing. it serves no function.
    Moreover if the state is not providing a secure environment and instead every individual has to protect themselves you have a massive waste of resources that prevent prosperity. Look to Somalia, Iraq or any of the other 'failed states' to see what the 'everyone has to protect themselves' ideology gets you – stability, security and predictability are the foundation to a functioning economy and society. You won't buy property if it's just going to dissapier randomly. There's nothing to invest in if people can just wander by and take your stuff.
    What you have when a state no longer provides security of persons or property is a lawless wasteland where the only 'rights' possible derive from having the largest army present.

    Second, this notion that the damage to free speech is just hurt feelings ignores the long history of death, ranging from angry mobs to revolutions, civil wars, and even world conflict. Indeed, what would the world be like without John Locke's treatises on government, or Uncle Tom's Cabin, or the Communist Manifesto, or Mein Kampf, just to name a handful of documents that have changed the world, for better or for worse?

    Speech can inspire people to go out and kill people. Speech causing death is a mult-order consequence.
    A weapon, by design, kills people as it's primary function. A weapon killing someone isn't a failure state. It isn't someone doing something 'incorrect'. It is someone using the tool as intended by the designer.

    All failure modes for arms derive from 'A thing designed to kill someone….'
    Failure modes from speech derive from 'A thing that is designed to convey information.."

    If a guy at a radio station can rile people up to commit a genocide you have far bigger problems than the guy at the radio station spouting hate.
    If a guy with a firearm can randomly murder multiple people in a short amount of time that's just the weapon functioning as designed.

    If you can't understand why 'An Armed Society is a Polite Society' is inherently a form of group censorship via intimidation then there's nothing to really talk about.

    And that, in a nutshell, is the conflict between the first amendment and the second.
    Everyone armed to the teeth and capable of killing each other if they don't like what you say, or what god you worship, or how you worship, or that you went to a clinic offering the 'wrong' kind of services.

    Hell, we don't even need to look at failed states for your desires, look to the cyberpunk genre.
    The corporations run everything because the government provides no protection so any large property owner will need to have a military force to protect their property. The constitution says nothing about limits to corporate power so now you're back to having warlords and their courts CEOs and their boards. And it's not like we've not been on the brink of that before. Guilded age yo.

  77. Psmith says

    "Everyone armed to the teeth and capable of killing each other if they don't like what you say, or what god you worship, or how you worship, or that you went to a clinic offering the 'wrong' kind of services. "
    You sure do pass briskly over the part where the victims were unarmed, and that, when the perps were stopped, armed men did the stopping.

    @Dennis, eh, there were restrictions at the state level (Sullivan Act, various prohibitions on concealed carry) before the NFA.

    @Brian Z, it's worth noting that many warships (equipped with cannon) of the colonial era were privately owned; see https://en.wikipedia.org/wiki/Privateer#United_States

  78. Dan Weber says

    Some posters seem to think things would me much more convenient without a Constitution. After all, we still have the political process.

  79. Argentina Orange says

    @pharniel

    Hell, we don't even need to look at failed states for your desires, look to the cyberpunk genre.

    If you have to openly resort to fiction to support your argument, perhaps you should reconsider supporting your argument.

  80. Justin S. says

    @pharniel

    The state's job is to provide security and protect my property, including my life. This is so basic a function that libertarian's consider it the only legitimate function of government. If the State is not doing that what, exactly, is the purpose of the state? nothing. it serves no function.

    The State's job is to protect and perpetuate itself. Individuals– such as you and me– are expendable.

    Also, it is fundamentally incapable of proactively protecting more than a minuscule fraction of its citizens from random threats. (State-on-State conflicts are another matter, but see again: "protect and perpetuate itself" and "individuals… are expendable.")

    If you want proof, goad someone into attacking you and see if the State interferes before you come to harm. (I would suggest walking around a bad neighborhood until someone attacks you, but that has a lower probability of causing an attack.)

  81. Brian Z says

    @pharniel

    And that, in a nutshell, is the conflict between the first amendment and the second. Everyone armed to the teeth and capable of killing each other if they don't like what you say, or what god you worship, or how you worship, or that you went to a clinic offering the 'wrong' kind of services.

    I think you've again conflated a right to own firearms with a right to act in a lawless manner. Regardless of one's "capability," if the government vigorously investigates, prosecutes, and punishes those who use their firearms lawlessly (i.e. murdering another because they go to the wrong church), society is protected. I fail to see the tension between the first and second amendments.

    Yes, this is a more reaction vice proactive government–by design. This is why there were comparisons to 1A prior restraint.

  82. Alpheus says

    Moreover if the state is not providing a secure environment and instead every individual has to protect themselves you have a massive waste of resources that prevent prosperity. Look to Somalia, Iraq or any of the other 'failed states' to see what the 'everyone has to protect themselves' ideology gets you – stability, security and predictability are the foundation to a functioning economy and society.

    Yes, I would agree that a failed state is one that cannot provide a secure environment. At the same time, you cannot count on the State to protect you. It's impossible: there are simply too many people, and too many people who wish to do you harm, and not enough police officers to go around (and if there were, we'd be in a de-facto police state).

    I would go further, and point to a failed State that actively supresses the right of people to own arms: Mexico. Right now, drug lords and corrupt police and soldiers run rampant, and they all have arms despite what the law says, yet it's very difficult for individuals to get arms to legally protect themselves; when they do, it's at the whim of government to ignore them. (I heard recently that government officials have led some community leaders into a false sense of security, so they could confiscate and arrest people who have arms; I don't know if this is true or not, though, so take it with a grain of salt.)

    You would have us believe that the United States, with its heavily armed society, is a "failed state", but if it is, I'd shudder to think of what kind of "successful state" we'd become, if we were to just adopt Mexico's gun laws…

  83. says

    @pillsy:
    "the idea that people are going to think any specific new provision for searching people or seizing property is going to automatically be illegitimate just doesn't track with my experience at all."

    Apparently you haven't been following the discussions over wiretapping and metadata collection, then, because the objections to those activities come directly from the Fourth Amendment.

    That doesn't track well with my understanding (which may well be inaccurate), which was that the recent wiretapping issues were not focused on Fourth Amendment violations. AIUI, the FISA law was passed to restrict wiretapping of calls that crossed the US border after the courts found that the government does not need a warrant to tap such calls–i.e., that the Fourth Amendment doesn't apply.

    If that's the case, it's another reason to highlight the political process–because it's an important way of protecting rights that aren't protected by the Constitution, or at least that the courts say aren't in protected by the Constitution.

    It seems to me that there's a pretty good chance that the Supreme Court will end up saying that assault weapon bans are constitutional. Assault weapon bans are, well, stupid, and provide essentially no benefit[1] to public safety while pointlessly inconveniencing gun owners and banning lots of innocuous or purely cosmetic features. Nonetheless, the courts often fail to rule the way you would like.

    If that happens, gun rights advocates could just throw up their hands and say, "Oops, I guess the right to keep and bear arms just doesn't cover AR-15s. Never mind." Or they could work to get rid of the bans in any number of other ways. Which would you prefer?

    "It just appears that Moebius Street offered that as an attempted rebuttal to that line of argument, and I'm hoping they'll clarify why they think that particular example is so obviously absurd."

    They did, in their first response to you. It's the bit about "prior restraint". Look that up; it's a term with a specific meaning in relation to Constitutional law.

    Yeah, and that specific meaning is, AFAIK, only applicable to restrictions on freedom of expression. I've never heard of it being used in any other context.

    [1] There might be a benefit to magazine size limits during mass shootings, but mass shootings are already extremely rare and the benefit is likely to really marginal.

  84. ThatThirstyRando says

    You know that most states do, in fact, have extensive laws about knives. How long one can be to carry concealed, which features are always illegal no matter what (gravity opening being one of the most common), the maximum length that can be carried openly.

    It's a good thing that your argument is about the mere existence and possession of the objects creating additional danger, then?

    In case this is unclear to you :

    1) you are calling for the prohibition of possession of guns because they increase danger through their mere existence
    2) this applies to knives too
    3) but you are not calling for the prohibition of possession of knives

    I am quite familiar with the (not "extensive") laws surrounding knives and how nonsensical they are when viewed as a sum. For example, some states ban knives over a certain length if the blade is fixed, while other states ban such knives only if they do NOT fold. Many states provide no restrictions whatsoever on knives as weapons.

    Regardless of any of these regulations, a knife or other blade that is a mere 1.5 inches long can be used to fatally slice someone. If the existence of such objects passively created the danger you ascribe to them, the world (including, for example, the kitchen of a grade school cafeteria) would be a very dangerous place indeed.

  85. says

    @Dan Weber:

    Some posters seem to think things would me much more convenient without a Constitution. After all, we still have the political process.

    This makes as much sense to me as saying, "Some posters seem to think things would be much more convenient without a Constitution. After all, we still have the Bill of Rights." The Constitution itself lays out a political process! You can use it to defend your rights and expand your freedoms! It's not easy, but it beats the alternative.

    Indeed, that's how we got where we are in the first place. The Courts only adopted the interpretation that the Second Amendment is about an individual right to keep and bear arms seven years ago. Now that individual right is front and center, even when a lame duck Democratic President who's made gun control a major priority delivers a speech calling for more gun control.

  86. En Passant says

    Jesus says January 5, 2016 at 1:25 pm:

    Sort of a long view, the government is attempting to remove rights bit by bit. Any time i hear a politician speak, I know he is working towards increasing his power.

    This. A thousand times.

    To any ambitious politician, bureaucrat, or other government official, the rights of ordinary citizens are nothing but a nuisance and speedbump on the road to realizing their ambitions for more power and control. Citizens with fewer rights are smaller speedbumps.

    They will say whatever serves their ambition. Whether their words are true or false is coincidental.

  87. En Passant says

    ThatThirstyRando says January 6, 2016 at 4:52 pm:

    Regardless of any of these regulations, a knife or other blade that is a mere 1.5 inches long can be used to fatally slice someone. If the existence of such objects passively created the danger you ascribe to them, the world (including, for example, the kitchen of a grade school cafeteria) would be a very dangerous place indeed.

    Exactly.

    Those who fervently decry the very existence of guns do not even recognize that penknives and kitchen knives can kill. Guns are their totemic objects, imbued with magical powers to kill by merely existing. If only the totems were made taboo, then all murder would cease.

  88. AnonGuy says

    A simple question, because many are confused by punctuation:

    "A well balanced breakfast, being necessary to the start of a healthy day, the right of the people to keep and eat food, shall not be infringed"

    Who has the right to food? A well balanced breakfast or the people?

    I am constantly perplexed by those who have difficulty with this, particularly in light of the writings of Jefferson and Madison.

  89. ravenshrike says

    Given that Obama has praised Australian gun laws on multiple occasions, a model that is the textbook definition of mass confiscation, the idea that Obama does NOT want to take our guns is not merely naive, but outright delusional. In any case, at 330 million plus weapons and counting, with Obama being the most successful gun salesman for new owners in decades, the idea that people would allow confiscation, even if a law was 'deemed passed', is the height of absurdity.

    More importantly, outside of an over 90% drop in the general availability of guns in the US, there is not a gun control law that would ever reduce gun violence. Certainly none of the laws proposed following the mass shootings would have stopped any of the mass shootings in question. The funniest part is when people talk about the gun show loophole when none of the mass shooters utilized said 'loophole' to obtain their firearms.

  90. Matthew House says

    Disclaimer. I own guns, I repair guns, I teach people to shoot guns, I have held an FFL, and I have bought/sold/repaired guns for a living. I have an obvious bias, and I'm just gonna put that right out front.

    That being said.

    The 'intent' of the Founders with regard to the ownership of firearms is in no way obscure. The amount of correspondence both public and private between the founders about the intent and function of the second amendment is, quite literally, into actual -pounds- of paper.

    The intent is clear. Private ownership of weapons, ranging from handheld firearms to -freaking cannons- was explicitly permitted, and actively encouraged.

    "But Mr. House, the Founders never invisioned assault rifles that shoot 300 round clips of magazines that go through 50 schools with a shoulder thing that goes up…"

    Bullshit. The puckle gun was a thing. the giradoni held -30 rounds-. As much as a modern ar-15, and almost as deadly.

    The entire purpose of the second amendment is anti tyranny…

    "But nobody could take on the government with rifles, we've got tanks-n-stuff!"

    And yet, a bunch of 7th century, dirt poor goat farmers with no supply chain, no money, and rusty-ass AK-47s have been holding their own against the department of defense since before I could buy beer. (I turned 21 in 1991).

    Furthermore, if you think a native population armed with just pistols and determination couldn't lay waste to an occupying army, you don't understand -anything- about asymetrical warfare. Hell, a determined populace could wipe out an army with access to gasoline and matches.

    People wail about 'it'll make me less safe'.There are -so many- things that kill more people a year than guns. So. Many. Cars, for starters. And yet, we don't here any wailing about those.

    As far as regulations… there are something like 20,000 different laws regarding guns. They are some of the most heavily regulated things in America.

    You cannot (legally) buy a gun over the internet, without an FFL

    You cannot (legally)-sell- a gun over the internet, without an FFL

    You -may- sell a gun to another private individual, in person, but -only- if;

    1. You are physically in your state of residence.

    2. the buyer is in your state of residence,

    3. -and is also a resident of that state-.

    So, if you live in texas, and I live in maine, you can't (legally) sell me a gun. period.

    That's just a tip of the iceberg. There are -reams- of regulations about who can buy, who can sell, who can do what kinds of repairs.

    For example, you can do gun repairs on a class 3 FFL( reseller/dealer) but if you do gun refinishing, you have to have a class 7 FFL( manufacturer), and if you reload your own bullets, and you sell -even one-, you must have a third, different license… the list goes on..

  91. joshua says

    i agree that government has a compelling interest in protecting its citizens. however, to use this to limit gun ownership is disingenuous. to do so would lead you to virtually ignore the 2nd amendment as an individual right and render it as null and void. going that route also suggests that by violating a person's rights, you can protect others, which seems to undermine the idea of having rights at all. to put it somewhat indelicately, there is no constitutional right for you to not get killed, but there is a 2nd amendment. even if you interpret it as a compelling government objective, you don't get to do so in violation of specifically mentioned rights. not to mention that there already exists practical ways to prevent unstable people, etc. from obtaining guns and that no matter how many laws you pass, you'll never keep bad things from happening completely. it's an emotional argument disguised as a logical appeal.

  92. Visser Three says

    'Bullshit. The puckle gun was a thing. the giradoni held -30 rounds-. As much as a modern ar-15, and almost as deadly.'

    And neither are similar to modern wearponry.

    'And yet, a bunch of 7th century, dirt poor goat farmers with no supply chain, no money, and rusty-ass AK-47s have been holding their own against the department of defense since before I could buy beer. (I turned 21 in 1991).'

    One, there's nothing '7th Century' about the Islamic militants.

    And two.

    They have not managed to topple the Department of Defense, have they? They have managed to 'hold their own,' yes. But the way they did it relies a lot on the fact that the infrastructure that the US needs to defeat them doesn't exist for us to utilize, and their goals are unrelated to our efforts to stop them. They want to kill innocent people until the other innocent people DEMAND a change. I hope that isn't the goal that anyone is envisioning for defense against the government.

    Their methodology is not to topple a government to get their demands enforced. They have (until ISIL/ISIS/DAESH) consistently used tactics of, well, terrorism. The intention of Islamic Radicals has been to cause pain and fear in the countries who they want to meet their demands. It is a hostage situation. If the US government became a tyranny and its opponents used the same tactics as Islamic radicals to fix that, by attacking civilian targets in order to spur the civilian populace to demand its government accede to their demands, I would support the tyrants because they will at least not shoot me if I follow the law, compared to the revolution which would shoot me regardless unless I signed up.

    Do you really think that we could topple the US government in an armed civilian uprising, without military hardware? The best one could ask for is what the terrorists have been doing – Survive by continuously replenishing manpower via aggressive recruitment drives, potentially with a leadership that manages to stay hidden by living in 'friendly' areas willing to conceal them where the government won't think to look.

    Now, I think it's quite obvious what the founding father's intent is. Their intent is for us to hold another revolution if things go topsy turvy. But their intent was also for us to own slaves, and we stopped doing that, too. I have no belief, at all, that a civilian force could topple the US government if necessary.

    What I do think, is that we should ask what the situation calls for. It's not that I tend to support the 2nd Amendment on the grounds that I think it will protect me. I support it on the grounds that I remain unconvinced that the good outweighs the bad. Most people who own guns use them recreationally. I believe recreation is a positive good in and of itself.

  93. Matthew House says

    'Bullshit. The puckle gun was a thing. the giradoni held -30 rounds-. As much as a modern ar-15, and almost as deadly.'

    And neither are similar to modern wearponry.

    And your comment and (painfully) out of context quote completely ignores the first half of my statement. Which was that the argument that the Founders never could have envisioned anything like modern small arms is untrue. And if the Founders were perfectly capable of envisioning things like 30 round self-loading rifles (because such things, or things -very much like them-, already existed.), then they would have certainly voiced those objections, -if they had any-. The Founders were a chatty bunch, and not shy of making their opinions known.

    You attribute to me a position I do not hold, and then proceed to argue against it. Fail.

    'And yet, a bunch of 7th century, dirt poor goat farmers with no supply chain, no money, and rusty-ass AK-47s have been holding their own against the department of defense since before I could buy beer. (I turned 21 in 1991).'

    One, there's nothing '7th Century' about the Islamic militants.

    Oh, but there is -much- that is 7th century about the islamists. But, in the interests of not wasting time, I'll let this one pass.

    And two.

    They have not managed to topple the Department of Defense, have they? They have managed to 'hold their own,' yes. But the way they did it relies a lot on the fact that the infrastructure that the US needs to defeat them doesn't exist for us to utilize, and their goals are unrelated to our efforts to stop them. They want to kill innocent people until the other innocent people DEMAND a change. I hope that isn't the goal that anyone is envisioning for defense against the government.

    Their methodology is not to topple a government to get their demands enforced. They have (until ISIL/ISIS/DAESH) consistently used tactics of, well, terrorism. The intention of Islamic Radicals has been to cause pain and fear in the countries who they want to meet their demands. It is a hostage situation. If the US government became a tyranny and its opponents used the same tactics as Islamic radicals to fix that, by attacking civilian targets in order to spur the civilian populace to demand its government accede to their demands, I would support the tyrants because they will at least not shoot me if I follow the law, compared to the revolution which would shoot me regardless unless I signed up.

    Do you really think that we could topple the US government in an armed civilian uprising, without military hardware? The best one could ask for is what the terrorists have been doing – Survive by continuously replenishing manpower via aggressive recruitment drives, potentially with a leadership that manages to stay hidden by living in 'friendly' areas willing to conceal them where the government won't think to look.

    Now, I think it's quite obvious what the founding father's intent is. Their intent is for us to hold another revolution if things go topsy turvy. But their intent was also for us to own slaves, and we stopped doing that, too. I have no belief, at all, that a civilian force could topple the US government if necessary.

    What I do think, is that we should ask what the situation calls for. It's not that I tend to support the 2nd Amendment on the grounds that I think it will protect me. I support it on the grounds that I remain unconvinced that the good outweighs the bad. Most people who own guns use them recreationally. I believe recreation is a positive good in and of itself.

    You're amazing. You proceed to demonstrate that you really -don't- know how asymmetrical warfare works, and follow it up with conflating gun ownership with slave ownership. Then, for a trifecta of… something, you go on to argue that the only reason to own firearms is -recreational-.

    I'm sorry, I don't think we can have a rational discussion.

    This would be like me (who's knowledge of legal matters extends to 'we have laws, and courts' and everything past that is pretty murky) attempting to educate our host Ken White, on the finer points of jurisprudence(I'm not even sure that's the right word).

    It's just not going to work out, because everything you think you know is wrong. And you're convinced that your ignorance is just as good as my knowledge. I don't say this to be mean, or insulting. I think Ad Hom arguments are lame at best, and pathetic at worst. I'm sure you're a fine person.

    You're just arguing from a position of ignorance that's so vast, I'm not qualified to educate you. And since you're convinced that you're right, I -can't- educate you, even if I was qualified.

    Which is one of the -huge- problems we have with gun control laws in America. They're written by people who -don't know anything about guns-. Seriously, it's like watching people who have been blind since birth, try to legislate color.

    Anyhow, I hope this message finds you well, and that you enjoy all life has to offer.

  94. Jordan says

    Whether the Founding Fathers could have anticipated modern weapons or not is irrelevant. They couldn't have anticipated the internet either. Do you want to argue that the government is free to shutdown popehat.com?

    This is why they included a process for amending the Constitution.

  95. Bill says

    @Matthew House: Well said.

    The problem with the gun rights debate is that the anti-gun side argues in bad faith. They often don't know the existing state of regulations, and if they do, they don't particularly care. They make outrageous claims about gun ownership and then support those claims with dubious statistics–such as by including suicide rates of gun owners, as if a.) owning a gun makes you want to kill yourself, and b.) a person shooting himself with a gun is the same type of thing as a person walking into a crowded theater and opening fire. They lie about their ultimate motivations, to wit the confiscation of civilian firearms. I could go on.

    I would respect the argument more if they were honest. It might look something like this: "I believe that the only people who should be allowed to own firearms are police. Guns scare me when they're in the hands of other, un-uniformed people, and I dislike the cultural associations of gun ownership. I can't prove that making guns more difficult to legally obtain would make me safer, but it would make me feel better, and on that basis I'm not particularly interested in any evidence or reasoning that might contradict my viewpoint."

    At least that would be honest, and it would save time.

  96. pharniel says

    @Bill
    That's a mighty fine set of stawmen you've got there as equally disingenuous as your fictitious 'anti-gun' side. Especially since the only 'onerous requirement' in my state is to walk into a store and walk out with a 12 gauge and not look sketchy enough that the owner decides to run an optional background check.
    Maybe some of us who don't believe in 2nd amendment absolutism think that it doesn't make sense that you can cash-n-carry weapons but have to take a class to drive a car.
    Maybe some of us think that you don't need a 150 round drum mag to hunt or repel a home invader.

    Where I'm sitting I don't see any new restrictions, all I see are the old ones getting torn down in the name of 'respecting this traditional American right' and any suggestion that we place any restriction on firearm ownership met with 'you want to abridge an absolute right!'

    @Psmith
    You greatly underestimate the value of 'surprise' and your, or an average person's, ability to react to it. Even the those dedicated to "a good guy with a gun is the only thing that stops a bad guy with a gun" can't figure out a way to make it work. It doesn't matter if your armed to the teeth if your guns are in your holster and you are attacked by someone with a weapon you're done. The only way to prevent this is to be in a state of hyper awareness assuming any interaction could be an ambush or end in violence or live in a society where violence isn't common and people don't feel the need to be armed to protect themselves. Everyone owning a weapon isn't going to provide the second.

    @matthew House
    I think you really should look into the history of times people tried popular uprisings against the US government or even just corporations when the government gave 0 fucks about the civilian damage. Including the use of private armies and bombers and the abridgement of nearly every other right. 'Armed resistance to the state' worked out just as well once it was only ethnic cleansing on the table .

    I'd say go back a bit further and talk to the first nations people about attempting to resist the government by arms, but Wiki says the Indian Wars go up through 1924. And that's the US government who at least always goes "aw shucks, we might have messed up." Look how armed insurrection worked for other parts of the world.

    The only reason asymmetric warfare works is the people you're fighting don't want to inflict casualties on the civilian population. Once 'kill them all, god will know his own' is on the table it doesn't work.

  97. Matthew House says

    That's a mighty fine set of stawmen you've got there as equally disingenuous as your fictitious 'anti-gun' side. Especially since the only 'onerous requirement' in my state is to walk into a store and walk out with a 12 gauge and not look sketchy enough that the owner decides to run an optional background check.

    Annnd that's not true. At all. That background check you assert is optional? It is not optional. Hasn't been optional since, well. the 80's at the very least. I would know, -because I used to legally sell guns for a living-. No 4473 form, no NICS check, no sale. Period. End of story. Stop making stuff up.

    Maybe some of us who don't believe in 2nd amendment absolutism think that it doesn't make sense that you can cash-n-carry weapons but have to take a class to drive a car.
    Maybe some of us think that you don't need a 150 round drum mag to hunt or repel a home invader.

    Maybe you don't need a lot of things either… How would -you- feel about some 'censorious asshole' sifting through your life, and picking and choosing for you? Me? Not so much.

    Where I'm sitting I don't see any new restrictions, all I see are the old ones getting torn down in the name of 'respecting this traditional American right' and any suggestion that we place any restriction on firearm ownership met with 'you want to abridge an absolute right!'

    Name a restriction on the ownership of guns that has been torn down, removed, or elimnated. Just one. On Ownership. I'll wait.

  98. Matthew House says

    To be clear, yes, there have been easing of restrictions on the carrying of firearms. But that's not ownership.

    There have also been changes on the ownership of certain firearm accessories.

    However, State level firearms law, and Federal level firearms law are wildly different.

    Beingn current on federal laws is easy. The only really significant change in the last 20 years was the expiration of the Clinton Assault Weapons Ban.

    State laws are all over the place. Some states are becoming more restrictive, some less. It's a full time job to keep track of that, and I don't intend to try.

    Best rule of thumb is that New York, California, New Jersy, Mass, Washington DC, Illianois, and Hawaii are all places where gun ownership is rife with danger.

    For example, did you know that having an empty .22 shell casing in your possession without the required (And hard to get) permits in Mass is a felony?

    An expired .22 casing is worthless. You can't even reload them.

    And yet, they're more illegal to have on your person than hard drugs.

  99. Brian Z says

    The safety of our nation is at stake here! When are we finally going to discuss common-sense curfew laws? Surely we were not meant to have unlimited access to public areas! Why can people not acknowledge how much safer we'd be? How many more must suffer under cover of darkness before reasonable restrictions can be enacted?

  100. says

    @Joshua:

    i agree that government has a compelling interest in protecting its citizens. however, to use this to limit gun ownership is disingenuous. to do so would lead you to virtually ignore the 2nd amendment as an individual right and render it as null and void.

    This seems quite wrong. For example, there is widespread support, or at least acceptance, of some limitations on gun ownership, such as prohibiting convicted felons from owning them and virtually banning automatic weapons. I'm not saying that there aren't very strong arguments for why the Second Amendment isn't being violated in the first case, because the prohibition comes following due process.[1]

    I'm much less clear on why people don't mind the second, but I suspect it's a mix of a lack of perceived utility for the weapons in question, a sense that the ban has always been there and there's no loss aversion,[2] and a possibly even a shared belief that they really do pose a danger to public well beyond that posed by semi-automatic weapons.

    In any event, even if you disagree with those restrictions, having them doesn't render the Second Amendment null and void. The Second Amendment would still preserve people's freedoms to do a ton of things with guns that they really want to be able to do.

    [1] This is why the President's idea of prohibiting gun ownership to people on the "No-Fly" list is such an absolute shit idea, and should be opposed strenuously even by people who think there's no such thing as an individual RKBA. I really appreciated Mr White's previous post on this, even though I think his current one is a bit of a bust.

    [2] This maybe seems also to follow, legally, from the part in Heller about "common use", but I gotta say I thought that part of the decision was weird and confusing and seemed kinda circular.

  101. TheLizard says

    @Pharniel

    I don't typically comment here, but I thought it was worth doing to point out one (of the many) factual errors in your post.

    "This group [gun lobby] will not even let us *study* what restrictions might work or not, does not allow (by statute) the CDC to study gun violence"

    I understand that the anti-gun fear mongering propaganda has lead to misrepresenting this issue (as well as many others), but there is no such restriction on the CDC. In fact, the CDC has spent upwards of $700,000 on such studies in recent years.

    What the statute actually says is that taxpayer money cannot be used by any agency for political advocacy. That, to me, is a GOOD rule. Without it, it would allow whichever party holds executive power spend millions to produce all manner of reports and studies and marketing materials which advocate only THAT party's position.

    We already have enough of that kind of taxpayer supported propaganda as it is (agencies skirt the rule by using NGOs and awarding grants). It should stay in place, and possibly be strengthened.

  102. Matthew House says

    I'm much less clear on why people don't mind the second, but I suspect it's a mix of a lack of perceived utility for the weapons in question, a sense that the ban has always been there and there's no loss aversion,[2] and a possibly even a shared belief that they really do pose a danger to public well beyond that posed by semi-automatic weapons.

    Please define what you -think- a 'semi-automatic weapon' is.

  103. WDS says

    @MHouse,

    I've enjoyed your comments in this thread and it is obvious to me that you know a lot about guns. I'm curious though, what in @pillsy's statement made you think he doesn't understand what a semi-auto weapon is. The context of his statement seems to me to indicate that he understands the difference between a full auto and semi-automatic.

    It was the "There is wide spread support … of some limitations" lead-in that bothered me.

  104. says

    @Matthew House:

    Please define what you -think- a 'semi-automatic weapon' is.

    A semi-automatic weapon is a weapon that fires a single bullet every time you pull the trigger; I believe that there's a technical requirement that the weapon uses the energy from one shot to load another round into the chamber. Many handguns and quite a few rifles are semi-automatic. Outside of some misconceived laws ("assault weapon bans") that linger at the state or even municipal level, they aren't generally restricted more than any other kind of firearm.

    This is in contrast to automatic weapons, that can fire multiple rounds with a single pull of a trigger. Automatic weapons are tightly controlled by the federal government, and IIRC under the laws of many states.

    Generally speaking, Second Amendment activists fight against restrictions on semi-automatic weapons tooth and nail, while being pretty relaxed about the long-standing restrictions on automatic weapons.

    In order to have some confidence that I'm going from my own knowledge and understanding, all of the above was written without reference to other sources. Please feel free to highlight any mistakes.

  105. pmike says

    Not sure I agree when you say the TSA analogy is poor because it's a show. I think it's actually pretty good because it's a show. Restricting your ability to defend yourself so that someone will have less access to something to hurt you with isn't all that far from frisking a 10 year old who left a soft drink pouch in their backpack to keep terrorists from blowing up the plane.

  106. AnonGuy says

    Adding to Pillsy and Mr. House above, I think it would amaze most citizens to find out that the "Assault Rifle Ban" failed to ban automatic weapons in entirety…yes, that is correct, only certain semi-automatic weapons.

    In fact, the market for fully automatic weapons spiraled and many are in the hands of speculators and investors/trusts…it would be interesting to find out how many are in the investment portfolios of those trying to ban semi-automatic weapons. Many of these weapons are now worth $100K+ when sold, and it is strange to me that while trying to ban semi-automatic weapons, there is never any discussion of banning fully automatic ones.

  107. Matthew House says

    @Pillsy

    No, that's pretty much a spot on definition of semi-automatic. My apologies, most people who use the term semi-automatic when talking about banning guns, usually have -no freaking idea- what semi-automatic means.

    So, good on you, Sir.

    I've had a long day, beating a 1999 Jeep Cherokee into submission, so I'm a bit wrung out. I may bow out until tomorrow, or at least until the ranger candy kicks in.

  108. says

    @Matthew House:

    Yeah, I'm not a gun person, but I do like trivia and technology. I stay away from guns because I'm both klutzy and extremely absent-minded: I'm dead certain that I'd wind up starring in one of those articles about a gun owner who shot themself in an improbably boneheaded way within a week.

    Just to be clear, outside of robust criminal background checks (more robust than what we have now), I can't really think of any new gun control measures I support. I think there's a reasonable argument for checks for mental illness, but those raise a lot of concerns about medical privacy and due process, and I worry they'd be ultimately counterproductive by (further) stigmatizing mental illness and deterring gun owners from getting needed treatment.

    In an ideal world I think I'd support mandatory safety training for gun owners, but in this world it's too much of an excuse to dick gun owners around, and it seems like the recentish push for voluntary safety training has done a good job at keeping accidental firearm injuries and deaths under control.

    I mostly just disagree with Mr White (and evidently many gun rights advocates) about appropriate ways to discuss gun rights. I don't think the framing chosen by the President is a particularly bad one, nor one where the deck is stacked in favor of gun control.[1] I also think the actual Second Amendment right to keep and bear arms, as interpreted by the Supreme Court, is pretty narrow, at least compared to the right to free speech, and may even have a bit of a deference to majority opinion built into it.[2]

    Also, I think the actual debate around gun control and gun rights is just ultra-shitty, even by the debased standards of American politics.

    [1] Obviously he's engaging in advocacy, but his emotional appeals and descriptions of his favored policies as "common sense" are just ordinary bread-and-butter politics, of the sort used by people of all ideological stripes to promote all sorts of policies.

    [2] Of course, just because a given gun control measure may be constitutional hardly means it's a good idea.

  109. WDS says

    @pillsy

    "What's wrong with the lead in"

    In any discussion of rights, a lead in that starts like yours did, is usually followed by some ridiculous suggestion for other restrictions. Yours was not, but the lead in still made me cringe. Granted that lead in is better than "I support Free-Speech but,".

  110. WDS says

    @AnonGuy

    "Adding to Pillsy and Mr. House above, I think it would amaze most citizens to find out that the "Assault Rifle Ban" failed to ban automatic weapons in entirety…yes, that is correct, only certain semi-automatic weapons."

    You are right that the "Assault Rifle Ban" did nothing with Automatic weapons. That was because they were already so restricted, that it made no sense even in pure "Anti-Gun" peoples minds to try to add additional restrictions. Congratulations on making a statement that is in fact true, but yet conveys a message that is about as far from the truth as possible.

  111. says

    @WDS:

    In any discussion of rights, a lead in that starts like yours did, is usually followed by some ridiculous suggestion for other restrictions. Yours was not, but the lead in still made me cringe. Granted that lead in is better than "I support Free-Speech but,".

    That's all true. I'm just going to argue that's a good thing. Unlike, "I'm a big supporter of free speech, but calling the Springfield City Council 'a bunch of buttheads' goes too far!", it's actually a perfectly consistent, and very plausibly honest, statement. If you think a right is pretty narrow, of course you're going to be fine with ridiculous new restrictions.

    It's also a perfectly good starting point for a conversation, because it highlights the area of disagreement and makes it pretty easy to explore where your interlocutor might be making bad assumptions.

    Then again, it might actually be true, in which case you can discuss why the restriction is ridiculous even if it isn't unconstitutional[1] (or why it infringes on even the narrow rights in question). "Everything that's not forbidden is compulsory," is maybe the worst possible way to read the restrictions on state power laid out by the Bill of Rights.

    [1] That's why I keep harping on AWBs: probably constitutional, definitely stupid.

  112. Matthew House says

    @Pillsy –

    Good Morning!

    Yeah, I'm not a gun person, but I do like trivia and technology. I stay away from guns because I'm both klutzy and extremely absent-minded: I'm dead certain that I'd wind up starring in one of those articles about a gun owner who shot themself in an improbably boneheaded way within a week.

    In which case, no gun for you. And that's fine. I will aggressively defend your right to choose for yourself. What I won't stand for is people trying to choose for me.

    Just to be clear, outside of robust criminal background checks (more robust than what we have now), I can't really think of any new gun control measures I support.

    They're.. pretty robust. the National Instant Check System is tied into everything short of psych records, because HIPPA.

    I think there's a reasonable argument for checks for mental illness, but those raise a lot of concerns about medical privacy and due process, and I worry they'd be ultimately counterproductive by (further) stigmatizing mental illness and deterring gun owners from getting needed treatment.

    I agree. We need to de-stigmatize mental illness. It's the only way people are going to get the treatment they need. Also, just because one is mentally ill, does not mean one is dangerous or violent.

    In an ideal world I think I'd support mandatory safety training for gun owners, but in this world it's too much of an excuse to dick gun owners around, and it seems like the recentish push for voluntary safety training has done a good job at keeping accidental firearm injuries and deaths under control.

    -every- restriction is claimed as 'reasonable' and within a couple of years, someone is using it to try to deprive someone of their rights, with malice aforethought.

    I mostly just disagree with Mr White (and evidently many gun rights advocates) about appropriate ways to discuss gun rights. I don't think the framing chosen by the President is a particularly bad one, nor one where the deck is stacked in favor of gun control.[1] I also think the actual Second Amendment right to keep and bear arms, as interpreted by the Supreme Court, is pretty narrow, at least compared to the right to free speech, and may even have a bit of a deference to majority opinion built into it.[2]

    President Obama is a damned liar, more so than most. Pretty much everything in his most recent executive order is already law or policy. So his EO is basically a large wad of bullshit.

    Also, I think the actual debate around gun control and gun rights is just ultra-shitty, even by the debased standards of American politics.

    Yes it is. And the fault is bluntly on the side of those in favor of gun control. You want people to play nice? Stop allowing them to do things like calling me a murderer, comparing me to child molesters, posting my address in the paper under the bullshit excuse of 'gun safety' when they're really just trying to shame me at least, and get me robbed and murdered at worst.

    And most of all? Stop. Lying.

  113. says

    What I won't stand for is people trying to choose for me.

    That was ultimately what pushed me away from gun control a while back. I think, on average, owning a gun is probably a pretty bad idea, but individuals are much better situated to judge whether their circumstances are typical than I am. And even if they misjudge, rights aren't only about letting people make the right decision.

    Also, I gotta say, the general impulse to resent it like hell when you're told you have to give up something important to you because of the way some other assholes used it is one I tend to empathize with.

    President Obama is a damned liar, more so than most. Pretty much everything in his most recent executive order is already law or policy. So his EO is basically a large wad of bullshit.

    On the one hand, I don't really agree with your take (in that I thought he was clear enough that the changes are minor tweaks of existing practice, as is appropriate for an EO), I think that just laying out the details of how he's wrong–or I am–is a really straightforward way to proceed. The basic setup of the speech isn't a bad way to discuss the issues at stake, even if the underlying reasoning is wrong or dishonest.

    That's not because I agree overall with him, either. His ongoing insistance on tying background checks to the "No Fly" list is awful and appalling.

    You want people to play nice? Stop allowing them to do things like calling me a murderer, comparing me to child molesters, posting my address in the paper under the bullshit excuse of 'gun safety' when they're really just trying to shame me at least, and get me robbed and murdered at worst.

    A lot of gun control advocates are supreme assholes. They don't view the potential costs of gun control as costs at all–they have no use for guns themselves, and assume that the only people who want them are members of the other team, and view crapping on members of the other team as a bonus.

    If I had any idea how to get them to stop, believe me, I would.

  114. joshua says

    @pillsy

    "i agree that government has a compelling interest in protecting its citizens. however, to use this to limit gun ownership is disingenuous. to do so would lead you to virtually ignore the 2nd amendment as an individual right and render it as null and void."

    "This seems quite wrong."

    you're right. i worded it poorly. what i meant was that if you use public safety as the only reason, it immediately begs the question, what is the limiting factor?, since wouldn't banning all guns further that same objective? there has to be something unique about what supposed cure you're offering beyond protecting the public i think, or taken to its logical conclusion, the second amendment is more a privilege than a right.

  115. Careless says

    b) "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." Note the punctuation and wording. The final comma separates the phrase 'the right of the people to keep and bear Arms' from the phrase 'shall not be infringed'. Given the structure of the sentence, 'the right of the people' is the ONLY part that cannot, gramatically, be acted on by 'shall not be infringed'. The comma that separates them makes that true. Meanwhile, 'being necessary to the security of a free State' lacks a subject – we can tell that from the words 'being necessary', as being (the verb) isn't acting on anything in that clause. This leaves 'A well regulated Militia' as the ONLY part of the sentence that could possibly be logically and gramatically linked to 'shall not be infringed', with the other two clauses describing what 'a well regulated Militia' is according to the author.

    hahahaha congratulations at the worst attempt at that I've ever seen

    We're not really allowed to produce any other studies because, again, by law studying firearm violence is blocked by the people tasked with studying health in this country

    You're lying.

  116. Careless says

    There isn't a single other thing in the US that is that deadly and that poorly dealt with.

    /facepalm

    The second amendment is mutually incompatible with every other right even hinted at in the constitution

    Yes, Moebius having a gun is keeping you from not having soldiers quartered in your house.

    Good lord, I'm going to have to save my brain cells by not reading any more of GuestPoster's posts.

  117. Joe B. says

    The part that bugged me about this speech is when he said "I believe in the second amendment, its right there on the paper" ( I may be paraphrasing slightly). It seemed as if he was invoking the sheet of paper as the justification of the right. Society may be the guarantor, the sheet of paper may be the record, but it seems as if he is saying that the right to bear arms is derived from a sheet of paper.

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