Friday, June 27, 2008

Gun Control and the Second Amendment

DBB writes on the recent Supreme Court ruling on gun ownership.

I'm one of those "leftists" (insofar as this word has any real meaning) who think the private ownership of guns is a Bad Idea. If the Second Amendment came up for repeal (by a new Constitutional amendment), I would support it wholeheartedly. I could give you a ton of arguments — good arguments — why private gun ownership is a Bad Idea.

But I won't, because the Second Amendment is not up for repeal, and until it is, my arguments and beliefs against private gun ownership are completely irrelevant. That's what the Constitution does: It makes the beliefs of the citizenry — even a majority of the citizenry — pretty much irrelevant. My beliefs against private gun ownership are as irrelevant as other people's approval of "under God" and "In God We Trust". I can argue against private gun ownership until I'm blue in the face, give you pages of facts and figures, and any opponent can simply say, "Second Amendment" and win the debate. The argument against private gun ownership is a non-starter.

The Constitution, and the Supreme Court's interpretation of the Constitution, tells me (barring arguing for another amendment) what I new laws I can and cannot argue for; it doesn't tell me what I have to believe is good. Specifically, I cannot argue for laws that simply ignore the Constitution. Maintaining the integrity of the Constitution is vastly more important to me than having my way about eliminating the private ownership of guns.

On the other hand, the Constitution is not holy writ. It tells us what is legal, not what is good. There's no tension whatsoever between my personal opinion that the private ownership of guns is a Bad Idea and my investment in maintaining the integrity of the Constitution.

Leftists and gun-control advocates are typically not quite as stupid as rightists. We can read, and we know what the second amendment says. We know that the laws and regulations we argue for must be compatible with this amendment. Because the words "well-regulated militia" appear in the amendment itself, we believe that regulations and controls on gun ownership are constitutional. There's a great deal of controversy about precisely what sort of regulations and controls are constitutional, but we have a court system precisely to settle this sort of controversy.

A persistent theme in anti-gun-control arguments is a pure non sequitur/slippery slope fallacy. Gun control advocates want at some level to eliminate the private ownership of guns. For many advocates, myself included, this is true. Therefore any position put forward for regulation and control are designed to eliminate private ownership in open defiance of the Constitution. The conclusion simply does not follow from the premise.

This argument ignores two facts. First, gun control advocates are not just against guns because they are guns. Guns cause death, injury and suffering, and we're against death, injury and suffering. Many of us believe that this death, injury and suffering would be best alleviated by eliminating private gun ownership, but we know we can't have that (at least not easily, without a constitution amendment). So we argue for laws that will alleviate death, injury and suffering without eliminating private gun ownership. If some law is compatible with the second amendment, then it's compatible, even if its advocates and proponents have desires and beliefs that are not compatible with the second amendment.

It is the case, of course, that sometimes gun-control advocates do argue for laws that are unconstitutional. Nobody's perfect. Bad arguments are bad in themselves, not by virtue of the desires of their proponents, and we have the Supreme Court to determine that those arguments are bad. And that's how negotiation works: ask for everything, and then give things up. The opposite, ask for a little, then ask for more, never works (as the Democratic party has proven time and again).

This article is not about gun control per se. It's about the role of the Constitution in shaping and limiting law and political discussion. The Constitution governs laws, not opinions, and constrains what laws we can argue for, enact, and enforce, not what ideas and desires we can hold. It is the laws, not the opinions of their advocates, that must fundamentally be judged.

12 comments:

  1. I first want to note that I'm not an NRA nut who thinks that the liberals are going to ban guns - I never thought any such attempt would ever succeed because, as you say, the 2nd Amendment trumps all. So basically that is something that has never entered my mind.

    If it came down to amending the Constitution to ban guns, I think I could only be comfortable with that if it was an across-the-board ban - i.e. police and the military would be gunless as well (though of course the Military could have their guns when on the borders or when abroad - obviously). I'd make no exceptions for the police. Guns would simply be banned within the borders of our nation, period - I could live with that.

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  2. dbb,

    Banning guns in general is a nice idea but here in Ireland we now have the ridiculous situation of unarmed police encountering armed criminals. Give the police guns, they provide at the very least, a formidable deterrent. I have to admit to being a small bit alarmed at the seemingly trigger happy approach some American police seem to take on occasion. They do know that it is possible to fire a single round, right?

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  3. It is exactly because of the large numbers of unjustified (and unprosecuted) police shootings that I would ban guns for the police. If it is a bad idea for people to have guns, then it is a bad idea - I don't make any distinction between the police and the general population - I've seen some pretty scary (and dumb) police with guns.

    Presumably if we ban guns, far fewer criminals will have them. I simply do not trust someone with a gun just because they have a badge or government authority.

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  4. dbb,

    I would share your concerns. Having a badge is no guarantee that you will act in a sensible manner. The problem we have in ireland (particularly dublin) is that there has been a huge increase in illegal guns being used (glocks mainly for some reason). The police are unarmed and essentailly powerless if confronted by an armed criminal. While I agree that it would be ideal if no-one had them I don't think that not giving the to police when the criminals do have them does anything constructive.

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  5. Some of the same arguments are used by those who advocate private gun ownership - that the criminals have them and so citizens need them for defense. The simple fact is, there are very few police officers per capita. Mostly what they do is clean up the mess after a crime has already occurred.

    And most criminals, even those with guns, don't shoot at (or otherwise attack) the police - they run, they ditch their guns and pretend they never had them so as to avoid gun charges.

    There are non-lethal means of taking someone down. The police can always use those. I'm sure there would be a very big investment in such things if the police could no longer carry guns.

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  6. And here I own a gun -- and will own more -- precisely because I don't trust the gun-wielding police. I don't trust them to effectively intervene in time if me and mine are under assault, and I don't trust them not to try to knock down my door and machine-gun my wife because some moron transposed a street number on their no-knock warrant application. But let's face it: I live in a city with an estimated 55,000 active gang members and a police force not terribly known for its public accountability. We are very much on our own.

    But I'm also very aware of the statistics on home defense with a gun. That's why I also keep a baston and a police-issue Maglite under the bed and have my kickboxing coach training me in Arnis.

    Target shooting, for which I use my gun, is a fun and meditative sport. However, I was appalled at how easy it was for me to obtain my Handgun Safety Certificate -- essentially, so long as you don't accidentally kill yourself with your pencil while taking it, you'll pass. I am all for common-sense and rigorous regulations: mandatory safety classes before purchasing, registration and licensing, annual re-qualifications, and severe sentencing enhancements for the use of firearms in the commission of a criminal act. But in their zeal, a lot of California's "safety" regulations were passed without really thinking about consequences.

    For example, SB 489 requires a loaded chamber indicator and a magazine disconnect mechanism on all semiautomatic centerfire handguns (in 2007, it was amended to include rimfires like mine). A magazine disconnect is a fairly sensitive mechanism and can be prone to failure; the complexity it adds to semi-autos makes them less safe by increasing their propensity to jam. The loaded chamber indicator requirement was worded so vaguely that firearms that previously passed safety requirements no longer do so. The result is that these "grandfathered" firearms are still legal to purchase but newer, safer versions are not.

    For example, the 2008 version of the Springfield Armory XD comes with a thumb-safety; however, its loaded chamber indicator (which previously was sufficient) no longer meets the new interpretation of the statute, and so the gun with an added fourth safety (in addition to the internal, trigger, and grip safeties) is unavailable in California.

    To demonstrate how arbitrary that standard is: Ruger's new SR9 9mm semi-auto has a loaded-chamber indicator that pops straight up, is stamped with the words "If this is up the gun is loaded," and has not one but two red-enameled bullet icons stamped on it; this was designed specifically to meet the wording of the California law. And yet this does not meet the new standard as interpreted by CADOJ.

    Precisely because California has attempted to regulate handguns out of existence, without directly taking on the Second Amendment, the safest handguns on the market are not available in California. In this sense, in attempting to make California safer, they have done the exact opposite.

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  7. I should further point out that Heller does not set a standard by which most safety regulations will be overturned, though the NRA (how I hate them!) will be challenging all of them. All Heller really does is take full-scale confiscation off the table. There is some question about open-carry laws now that will have to be adjudicated, as well as certain specific safety regulations that were contained in the DC Handgun Ban (such as keeping rifles or shotguns disassembled in the home and thus totally unavailable for self-defense). Most of the safety regulations (like those I mentioned above) are here to stay, and there is nothing in Heller that could be construed to prevent a state like California from retaining its Assault Weapons Ban.

    It might also be noted that in state-by-state comparisons, the data consistently shows that neither the anti-gun folks nor the Second Amendment absolutists are correct. Consistently what matters on gun crime is how well states do in preventing guns from reaching those who aren't supposed to have them (felons, parolees, children); similarly gun accidents are related to how knowledgeable in safe-storage one is.

    According to Mark Kleiman, a professor of public policy -- and a Califorina liberal -- by taking the confiscation of the table, this might actually clear the way to making laws that do matter easier to enforce:

    "There's simply no evidence that keeping guns out of the hands of those currently eligible to own them under Federal law (adults with no felony convictions, no domestic-violence misdemeanors or restraining orders, and no history of involuntary commitment for mental illness) reduces the level of criminal violence. Nor is there evidence that allowing anyone who can pass a background check and a gun-safety course to carry a concealed weapon increases the level of criminal violence. All that matters is keeping guns away from people who demonstrably shouldn't have them. Present law does that, but the gun lobby has done many things to make that law impossible to enforce."

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  8. James, a lot of what you're saying makes sense. My personal beliefs notwithstanding, I'm completely willing to take confiscation (as well as laws intended to make handguns unavailable to those who can use them sensibly and safely) off the table.

    One problem, though, is the 3/4 cake problem: If gun-control advocates are willing to take a middle position before coming to the table, then a "compromise" will split the difference between a moderate position, and the extremist position (no regulation at all) of the NRA and other gun-rights advocates.

    So the offer to take direct and indirect confiscation off the table has to be conditional upon gun-rights advocates taking zero (or effectively zero) regulation off the table.

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  9. I know I'd be fine with that, and there's a substantial majority of gun owners who probably are on the same page. I really do think that one of the best ways to deter gun crime would be to create incredible penalties for using them in the commission of a crime. Sort of like hate-crime enhancements, with the bonus of not being thought-crime.

    My big problem with a lot of gun-safety advocates is the same one I have with a lot of environmentalists: if it sounds good, they'll throw their weight behind something, even if its practical effects are nil to negative. Can you imagine? I want my next handgun to be the XD-45, and I can't buy the new one whose only difference to the one legal in California is that it has a FOURTH safety. Ridiculous.

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  10. All I can say in response to your post is "Good for you."

    And (I hope) I am not just saying that because I own lots of guns.

    Most gun owners are not really opposed to reasonable regulation and safety requirements. But they share my suspicion that the "regulation" is just the first step down the slippery slope. I'd bet if there could be a magic deal struck that would require licensing and training of all owners with the understanding that there would not be even more restrictive laws for 50 years or something that most gun owners would go for it.

    In any event, there is so much that can be done to reduce crime and shootings without engaging in the battle over guns and I hope the debate moves in that direction.

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  11. When the bill of rights was being debated many asked what was intended by a "well regulated militia". Here's what the proponents of the bill of rights said:

    "I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."
    --George Mason, Virginia Convention

    "A militia, when properly formed, are in fact the people themselves..." -- Richard Henry Lee

    "The people are not to be disarmed of their weapons. They are left in full posession of them."
    -- Zachariah Johnson

    "And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms"
    -- Samuel Adams

    "The constitutions of most of our States assert that all power is inherent in the people; that … it is their right and duty to be at all times armed;"
    -- Thomas Jefferson

    "Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?"
    --Patrick Henry

    "The supposed quietude of a good man allures the ruffian; while on the other hand arms, like laws, discourage and keep the invader and plunderer in awe, and preserve order in the world as property. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside … Horrid mischief would ensue were the law-abiding deprived of the use of them."
    -- Thomas Paine

    "Firearms stand next in importance to the constitution itself. They are the American people's liberty teeth and keystone under independence … from the hour the Pilgrims landed to the present day, events, occurences and tendencies prove that to ensure peace security and happiness, the rifle and pistol are equally indispensable … the very atmosphere of firearms anywhere restrains evil interference — they deserve a place of honor with all that's good."
    -- George Washington

    The amendment even specifically states "the right of the people to Keep and bear Arms shall no be infringed."

    Also I'm willing to bet that any argument you have against handgun ownership could be made against knife ownership or car ownership. Of course your a socialist so I'm sure you wouldn't mind the government stepping in and telling you how to live and what you can and cannot own.

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  12. Just Another Gun Toting Liberal: You've completely missed the point of my essay. Perhaps you should consider repeating the third grade to improve your reading comprehension skills.

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