Opinion Forum

Supreme Court Upholds Gun Rights

June 29th, 2010

Today, the Supreme Court ruled in favor of McDonald in the case McDonald v. Chicago, upholding the applicability of the Second Amendment to the States and giving the federal courts the power to strike down state and local gun control laws deemed unconstitutional under the Second Amendment.

As a staunch supporter of the right to self-defense, I was glad to hear it. But my support of the Second Amendment goes deeper than the right to self-defense against lone criminals. It goes to the heart of who we are as a nation; a nation which, like it or not, was founded in a rebellion against its then-government.

I believe in the Second Amendment not primarily as a necessity for self-defense against criminals (though I care about that too), but as a necessity for self-defense against government. The right to posses an effective means of self-defense is one of the most effective deterrents against tyranny, for what government would dare mount a dictatorial takeover of its citizenry if they knew that to do so would certainly start a war? It is also fundamental in preserving our right against invasion by foreign powers, for what country would dare to invade a nation in which they would immediately be confronted by an enemy with enough privately owned firepower to put a gun in the hands of every adult citizen? Finally, it is essential in preserving our right to “provide new guards for [our] future security,” for I have never forgotten that this nation was Founded in a revolution against government and might (God forbid) someday have to be Refounded again in the same manner:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness — That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, — that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.

— Thomas Jefferson, The Declaration of Independence

The unalienable rights of man are meaningless without the ability to defend those rights against those who would infringe them. Infringement of rights can only be performed through the use of force. Therefore, defense of those rights requires the ability to bring force to bear should it ever be required, which in turn requires a strong defense and liberal interpretation (in the classical sense!) of the Second Amendment. By ensuring that the Second Amendment would apply to the States as well as the Federal Government, the rights guaranteed by the Second Amendment were greatly strengthened. Jefferson, no doubt, would be pleased to know it.

References:

McDonald v. Chicago – syllabus and opinion
McDonald v. Chicago – dissent

Articles written by Brianna Aubin
Tags: 2nd Amendment, Jefferson, self-defense, states, Supreme Court, tyranny
Categories: History, News, Politics | Comments (26) | Home

26 Responses to “Supreme Court Upholds Gun Rights”

Tom Carter | June 29th, 2010 at 5:30 am

As I’ve stated many times, I favor comprehensive and effective gun control. I’ve also written that I think the Heller decision was correctly decided and that the Court would likely soon incorporate the Second Amendment against the states. Some might think those are contradictory positions, but in my mind they’re not. The Second Amendment text and the historical context in which it was written would seem to have been pretty clearly intended to guarantee an individual right to keep and bear arms. At the same time, laws can clearly be constitutionally promulgated to protect people from the unlawful use of firearms. That includes long-standing restrictions on the kinds of firearms that can be privately owned, the manner in which they can be used, and the places in which they can be carried/displayed. McDonald doesn’t change that, although it does give courts the power to strike down extremely restrictive gun control laws like those of D.C. and Chicago.

Would Thomas Jefferson be pleased to know that America is a world leader in gun violence and murder, that shoot-outs often involving teenagers occur regularly on our streets, that children and other innocents are regularly gunned down in the crossfires, that huge numbers of people including children die every year in firearm accidents, that the country is full of pick-up trucks driven by well-armed yahoos sucking on longnecks, and that chubby suburbanites are shopping at Wal-Mart with Beretta ersatz phalluses strapped on their belts? Somehow, I don’t think so.

And this argument that we need an armed citizenry to protect against tyranny and defend ourselves against an overreaching government — every time I encounter it I can’t help laughing. To attempt that argument reveals that one has no concept whatsoever of the force that government can bring to bear when it seriously intends to, and if the military is included in the argument it becomes downright hilarious. The idea that a bunch of overweight, untrained family folks armed with little pistols and a few rifles or shotguns could fight them off is simply ludicrous. This ain’t 1776 any more, folks. Americans’ real defense against tyranny and invasion is the superb government we already have; complain about it all you want, fine-tune it when necessary, fix it when it breaks, and cast votes intelligently. That’s how we defend outselves.

larry ennis | June 29th, 2010 at 7:06 am

Tom
Why do you hold so many of your fellow Americans in such low esteem? At the same time you praise our superb government? Our government is at present a complete disgrace akin to organized crime.
The notion that non-military irregulars are not effective against regular military units isn’t borne out in Afghanistan or Iraq.
As for myself, the thought of another civil war in this country is frightening to say the least.

Brian Bagent | June 29th, 2010 at 9:36 am

Tom, you’re forgetting to include in your hilarity that there are loads of ex-military and ex-cops that would be part of such a resistance, many (most) of them still young and in excellent shape.

Don’t forget the lessons of Vietnam. A land of committed adversaries is unlikely to be conquered. Yellow-dog lies notwithstanding, we killed them at a general rate of 20:1 and yet they kept fighting until we lost our will to do the same.

Go back and read Gage and Cornwallis. Irregulars harassed them at every turn, and it wore on the men and officers alike.

Brianna | June 29th, 2010 at 11:19 am

“Would Thomas Jefferson be pleased to know that America is a world leader in gun violence and murder, that shoot-outs often involving teenagers occur regularly on our streets, that children and other innocents are regularly gunned down in the crossfires, that huge numbers of people including children die every year in firearm accidents, that the country is full of pick-up trucks driven by well-armed yahoos sucking on longnecks, and that chubby suburbanites are shopping at Wal-Mart with Beretta ersatz phalluses strapped on their belts? Somehow, I don’t think so.”

Tom, all of these things happen in Chicago already, and they’ve had a handgun ban for 30 years. You can’t protect people by taking away all their means of self-protection and telling them, “In event of emergency, blow this whistle and the police will come get you.” Police are great guys, but they’re under no obligation to risk their lives, and I can’t carry one around in my pocket. Part of acknowledging that the people govern themselves is acknowledging that the people are ABLE to govern themselves… if they can’t handle the use of arms, if they cannot control themselves, why treat them as though they are capable of self-government at all? Why not just give up, go to the Left and say, “We are helpless rubes and you are infinitely wise, please save us from ourselves.”

“And this argument that we need an armed citizenry to protect against tyranny and defend ourselves against an overreaching government — every time I encounter it I can’t help laughing. To attempt that argument reveals that one has no concept whatsoever of the force that government can bring to bear when it seriously intends to, and if the military is included in the argument it becomes downright hilarious. The idea that a bunch of overweight, untrained family folks armed with little pistols and a few rifles or shotguns could fight them off is simply ludicrous. This ain’t 1776 any more, folks. Americans’ real defense against tyranny and invasion is the superb government we already have; complain about it all you want, fine-tune it when necessary, fix it when it breaks, and cast votes intelligently. That’s how we defend outselves.”

Frankly, this reveals a contempt for your fellow countrymen that I find both astonishing and sad. That you subscribe to the idea of the left that those who “cling to their bible and their guns” are somehow deranged, knuckle-dragging fools is not encouraging.

You also seem to assume that everyone in the police and military would blindly follow orders and break their oaths to defend their fellow citizens and their Constitution, which I highly, highly doubt. If any military or law-enforcement (including ex-military or law enforcement) people reading this haven’t gotten themselves over to Oathkeepers, please do so (yes, that includes you Tom). As for our real defense against tyranny, it is not our government; government is where the tyranny comes from. The defense is in a watchful and informed people, the Constitution, and most especially the First Amendment. So long as we have the ability to speak, peaceful change is possible and armed rebellion is unjustifiable. Once that has been blocked, rebellion becomes both moral and inevitable. Understand that I am not advocating it or calling for it; I’m just setting down the rules as I understand them.

http://oathkeepers.org/oath/2009/03/03/declaration-of-orders-we-will-not-obey/

Tom Carter | June 29th, 2010 at 1:14 pm

You folks are living in a dark fantasy world that must be a really depressing place. It couldn’t be possible that none of you understand the difference between the right-wing nonsense we’re talking about and, for example, the wars in Vietnam and Afghanistan.

I don’t generally hold my fellow Americans in low esteem or feel contempt for them — that would be kind of like displaying a predictable, robotic, unthinking contempt for anyone who’s a liberal or, for that matter, anywhere to the left of right-wing extremism. As far as I’m concerned, contempt and low esteem are reserved for specific individuals who earn it, regardless of their group, race, class, or political ideology.

Brianna | June 29th, 2010 at 3:50 pm

“You folks are living in a dark fantasy world that must be a really depressing place.”

Tom, I’ve believed that the ultimate purpose of the second amendment was the preservation of the right to rebel against government since I learned what the Bill of Rights WAS. I believe it due to the simple fact that this country was founded in a rebellion against oppression and upon the moral right to rebellion against oppression. That’s not fantasy, that’s fact.

“It couldn’t be possible that none of you understand the difference between the right-wing nonsense we’re talking about and, for example, the wars in Vietnam and Afghanistan”

OK, explain to us what the differene would be between a guerilla war of the US Army against the Vietnamese and a guerilla war against the US Army on American soil? Besides the fact that our country is bigger, has more people in it, would be (on the whole) better armed, and would be aided by the fact that massive portions of said Army would desert before they fought their fellow Americans?

“The idea that a bunch of overweight, untrained family folks armed with little pistols and a few rifles or shotguns could fight them off is simply ludicrous.”

Sorry Tom, but that sounds an awful lot like contempt for those who “cling to their bibles and guns” to me.

Dan Miller | June 29th, 2010 at 3:53 pm

I consider gun rights to be very important; not because I think they can be used effectively to fight off an oppressive government but because they are guaranteed by the same Constitution which guarantees freedoms of speech and religion and which prescribes a form of government still well fitted to the needs of United States; to the extent that one freedom is diminished, all others are also potentially subject to similar fates.

Some forms of gun control are necessary. Convicted violent criminals should not be allowed to have them, folks who use or even possess them while in the commission of crimes should suffer severe penalties as a consequence, prisoners and detainees in jails and inmates in lunatic asylums should not be permitted to have them and neither should people in court being tried for criminal offenses. There are other limitations which appear to be necessary as well. However, the further we go down the sometimes appealing garden path toward diminishing gun rights and toward increased governmental control over our lives in other respects the less secure are all of our remaining freedoms.

I have never owned a firearm more significant than a BB gun, and don’t want one. I do take a lively interest in the freedoms of speech, religion and all the rest and understand only one way in which one of them can be diminished legitimately without also diminishing the others: if the Constitution is outdated, amend it using the procedures for which it provides. Don’t whittle away at it with a dull knife, likely to excise more important things than most of us would appreciate.

Tom Carter | June 29th, 2010 at 4:45 pm

Brianna, I’m not going to participate in a discussion about the U.S. military fighting American citizens on American soil. I find even typing that sentence repugnant. What do you think about that could lead you to something like that?

Dan, I mostly agree. People do have the right to keep and bear arms under the Constitution, and now it applies to state and local governments as well. I’d support an amendment to repeal the Second, but that’s never going to happen, and that’s fine. However, we do have to continue to have rational and reasonable controls on firearms, and the McDonald decision permits that. The discussion is going to be over what kinds of controls and restrictions. State and local governments have the power to legislate as their people want them to, and they can take local conditions into consideration. Personally, I’ll always favor more control rather than less, and I’d like to see some serious effort made to get illegal guns out of circulation.

Dan Miller | June 29th, 2010 at 5:11 pm

Tom,

Permit me to offer a bad example of what to do. Here in Panama, registration of firearms is required; possession without registration is a criminal offense and can result in substantial fines and significant jail time. The registration process now takes over a year and there are all sorts of bureaucratic hoops through which it necessary to jump. Meanwhile, those intent upon using firearms criminally have don’t mind breaking the law and have easy access to them. Violent crime, particularly in the urban areas, is quite high.

There are many places here where there are no police able to respond to armed invasions of people’s homes and if there are any they usually have no vehicles to get there. The nearest police station to our finca is about thirty – forty minutes away by car, if one is available and if it has good tires and four wheel drive. We have not been burgled yet and live so far away from “civilization” that it is much easier to burgle others. Still, we have four dogs who spend the nights inside (otherwise a burglary attempt would be preceded by the use of poison meat), a spray bottle of ammonia and a BB pistol which at five or ten meters looks pretty real. With luck, I might be able to hit a barn door were it not moving very fast. It would be worse than useless against someone with a real firearm. Legislation has recently been introduced to classify BB guns as firearms, making even their possession without registration a criminal offense.

I suspect that there are similar places in the United States where police protection is inadequate; it would not surprise me if some of them were in urban areas.

There may be solutions, but for the reasons stated in my earlier comment, I find them generally quite suspicious.

Brian Bagent | June 29th, 2010 at 5:14 pm

Tom, it would take more than repealing the 2nd amendment, unless you wish to ignore the 9th and 10th amendments as well. It would take an amendment to repeal the 2nd as well as ban them.

The point that all of this folderol over the 2nd amendment misses is that we do not need the 2nd amendment to be able to exercise our right to arms.

Here’s an excellent article that explains it. We Don’t Need to Steenkin’ 2nd Amendment

Brianna | June 29th, 2010 at 5:23 pm

“Brianna, I’m not going to participate in a discussion about the U.S. military fighting American citizens on American soil. I find even typing that sentence repugnant. What do you think about that could lead you to something like that?”

What do I think about that could make me consider the possibility of the Army being used to quell insurrection? The police being told to confiscate guns from law-abiding citizens after Katrina (you want repugnant? That was repugnant), the possibility of the collapse of the dollar, and the increasingly collectivist outlook of the government and the citizenry, mostly. More and more people seem to think these days that almost anything can be justified, provided you can come up with a plausible explanation for why it is “for the general welfare.” That is what leads me to think something like that.

Tom, lots of the things I think about are repugnant to me. This entire economic and political situation we are in is repugnant to me. But the only evil thought is the refusal to think. I have a duty to myself to be intellectually honest. I can’t refuse to consider a possibility simply because I think it’s repugnant.

I sure as hell hope that the idea of a guerilla war against our own armed forces is repugnant to as many people as possible. The more of our military members who find it repugnant and who would rather die than do it, the less likely it becomes that it will ever happen.

Brian Bagent | June 29th, 2010 at 5:55 pm

Dan, a quick response time to an emergency call is about 4 or 5 minutes in urban areas in big cities in the US. My quickest ever response to an in-progress felony (from the time the 911 operator answered the phone to the time I got where I was going) was about 80 seconds, and I was only about a block down the street from where the call originated.

The police cannot physically protect anyone unless they happen to be standing next to that person. It is for that reason that the United States Secret Service forms a human wall around the President when he moves – if he needs them, he won’t have the time to wait for them to come running from their offices. And at that, he has a half dozen or so SPECIALLY TRAINED agents guarding him.

Furthermore, there is NO LEGAL OBLIGATION FOR THE POLICE TO PROTECT ANYONE. There isn’t a moral obligation, either.

Tom Carter | June 30th, 2010 at 2:01 am

Brian, in regard to the 2nd, 9th, and 10th, I agree with you. If the Constitution were amended to remove the 2nd Amendment, gun control would be the business of the states unless the federal government legislated. However, my choice would be for the wording of the 2nd to be changed, making the right to keep and bear arms clearly subject to legislative restriction. However, neither of these things is going to happen, and that’s OK with me. Even after McDonald and Heller, there’s adequate room for government at all levels to impose reasonable controls over firearms, even though it won’t go as far as I would like.

One thing we need to keep sight of is the fact that we’re not talking about a natural right — that’s perfectly clear from the long list of constitutional controls and restrictions that already apply to weapons and firearms. Quick-draw McGraw’s right to pack heat when he takes his kids to McDonald’s isn’t a right even under the 2nd, as the Court has made clear. The right to have a weapon at home for self-defense (which doesn’t mean it has to be a pistol specifically) is fine with me, although there should be some legal requirements for how the weapon is stored and how easily it might be accessed and fired by children, drunks, and miscellaneous fools.

d | June 30th, 2010 at 7:55 am

Tom,i used to agree with you,but lately,have changed a little. When my husband worked nights,I was afraid. In our rural area,the sheriffs dept. has to come from a town,about 24 miles from us,no townpolice will come here. You are lucky if they come at all,but if they do, it usually takes over an hour,get the picture? My husband,being a hunter has rifles,shotguns,etc. I have him put them up,so no children can access,in a gun cabinet. Smart,right? Well,a neighbor was robbed,and the culprits sat at the end of my driveway, to commit this crime. I while alone,with a locked up,unloaded,rifle-type gun,felt weak,and unable to defend myself,let alone,my tiny granddaughter,depending on me to save her. I,now understand the want of a pistol,for defense. How much quicker could I save myself and others,with a handgun,loaded,but hidden? I opted for a baseball bat,being afraid more for the safety of curious children,who are impossible to keep your eye on at every second. I do,however,understand the urge to have a pistol and to keep it close. I do,however, know that a lot of children are killed,or wounded with parents guns. We will always have guns,in our house with or without legal consent,for snake,and predator control,b ut they are locked up. Don’t misunderstand,my husband can get out that gun and be ready to protect,in a few seconds,just not me.I think we need some gun control,I hate to see guns at walmart,too. Not all carrying them are fat and out of shape,but peoples’ tempers do flare,espially at walmart.:)
I do have to agree with Brianna,on one point,our military would assuredly not fight their relatives and friends,but that did not stop the civil war,huh?

d | June 30th, 2010 at 8:13 am

As you can see, I borrowed Larry’s proof reader for my last statement.Sorry,Larry.

Brian Bagent | June 30th, 2010 at 8:45 am

Tom, in absence of the 2nd amendment (well, even with the existence of it), what specific constitutional authority does the federal government have to ban any of them? The interstate commerce clause implies, well, commerce. A banning, or severe restriction, would necessarily mean an absence of commerce.

Finally, I would add that the founders believed, and wrote, that the #1 reason the they believed it a natural right was in defense against tyranny in government, specifically the federal government. Madison said that very thing in Federalist #46.

As you have pointed out, for the law to mean anything, it must be applied equitably. I would add to that that for the constitution to mean anything, we must follow the original intent of the framers of it in both spirit and letter. It is insufficient to suggest that simply because times have changed that original intent should no longer apply. To borrow language from the founders, there is a host of proofs which deny this position, not the least of which is Article V of the constitution itself. Madison et al well recognized that times would change, and that to remain meaningful that the constitution would have to change. Therefore they gave us a process by which it could be literally amended. A federal judge, nor even a host of them, even if they are on the supreme court, has any authority to elicit meanings which were never intended. Neither does the federal legislature.

Wasn’t it Federalist author and 1st chief justice John Jay that wrote that where the constitution is silent, no federal authority exists? That policy was followed nearly perfectly for about 140 years, up through the 1930s. I can’t find a cite for this, but I’m pretty sure it was Jay that said it.

We can look back and not like things the USSC did throughout our history (decisions of the Taney court come to mind), but they all did what they swore to do on their oaths. Not so any more.

Brian Bagent | June 30th, 2010 at 9:36 am

Doris, if children being shot accidentally were as common as suggested, it wouldn’t be much news. It is newsworthy because it is so rare. Newsworthy events are those things that fall outside the common order. A child being shot certainly falls outside that common order of things.

In compiling data on shootings, both from the standpoint of the victims as well as the actors, it is frequently pointed out that we are much more likely to be shot by someone we know than by someone we don’t know. While this is partly true, what you are not told is that rival gang members know each other, frequently rather well.

Normal, law-abiding citizens like you are know mostly other normal, law-abiding citizens, so when you see that statistic touted, you think about people that you know that might possibly shoot you, and draw the conclusion that anybody could do it. You may know a few hoodlums that could, but most of the people you know would never. If you wouldn’t, and most of the people you know are like you, it’s generally safe to assume that they wouldn’t, either.

I think what normal, law-abiding people see as people shooting people they know is generally adequately covered by our statute on manslaughter. By dff, manslaughter in this state is the same as murder (the intent is the same – to kill, unjustifiably), but the motivation for it arose out of some suddenly inspired passion or anger (like walking in on your spouse in the midst of a carnal act). According to http://www.texastribune.org/library/data/texas-prisons/crimes/manslaughter/81/, there are about 750 people in Texas prisons that have been convicted of manslaughter. The only meaningful thing we can extract from that is that for a state with a population of greater than 20 million, manslaughter doesn’t seem to be a very big problem.

Involuntary manslaughter, a similar crime, has about 214 inmates throughout Texas. Again, for a state of 20M+, not a big problem.

Criminally negligent homicide shows 112 inmates.

As evidenced by these numbers, shooting people we know, or people being accidentally killed are not very big issues in this state. In a free society (even in a tyrannized society), these are not common occurrences.

There is no way for anyone, no matter how well-intentioned, to extrapolate that there is any sort of national crisis. There are far too many murders for my liking, but depriving private citizens of the right to own pistols will only serve to increase the number of murders while probably having a minimal effect on the number of manslaughter, inv. manslaughter, and crim. neg. homicide cases in this society.

Tom Carter | June 30th, 2010 at 2:23 pm

Statistics are interesting things, no doubt, but more interesting is the way people respond to them.

Over 3,000 children (including teens) are killed by guns annually. Of that number, just under 200 are accidental killings. Those are small numbers, and in terms of statistics they don’t mean much, unless one of the kids happens to be yours. Those deaths are caused by parents or other adults who handle guns irresponsibly or fail to properly secure them.

Contrast that with the highly publicized and media-driven hysteria over stranger abductions of children. That happens somewhere between 100-150 times a year in the U.S. It’s even less frequent than accidental gun killings of children and is statistically less likely to happen than being struck by lightening.

In the first case, supporters of gun rights like the NRA play down gun killings of children as much as they can in furtherance of their political agenda. In the second case, a smaller problem, politically correct hysteria prevails, mostly because there’s no powerful political lobby working to keep the problem low-key.

Think about it: thousands of children could be saved from a tragic early death if we had better control over guns and less worship of some kind of archaic wild west society that never was.

O tempora, o mores.

Brian Bagent | June 30th, 2010 at 6:23 pm

Tom, kids dying is a bad thing. Us losing our freedom because a handful of idiots cannot responsibly exercise theirs is a worse thing by far.

Dan Miller | June 30th, 2010 at 7:41 pm

Assume, ridiculously, for a moment that private possession of all weapons potentially more lethal than spit-balls and bare fists were to be made unlawful and that possession carried a penalty of ten years in federal prison. Assume further that all owners of properly registered firearms were to comply.

Would that significantly diminish the numbers of deaths and injuries caused by firearms? Would the numerous gangs, rampant in many parts of the United States, intent upon establishing and maintaining their respective territories and maximizing their profits from drug importation and/or distribution abide by the new law despite their failure to abide by existing laws? Would non-gang affiliated folks who rob convenience stores, gasoline stations and private homes see the light and be dissuaded?

I’m doubtful that they would. Are there any reliable statistics (often an oxymoron) comparing the unlawful deaths and injuries caused by currently lawfully owned firearms and those caused by firearms unlawfully owned and/or used? Or on the numbers of deaths and injuries prevented by the possession and/or use of currently lawful firearms?

Tom Carter | July 1st, 2010 at 4:31 am

Dan, you’re making what is probably the strongest point that can be made by opponents of gun control. The argument goes, if guns are illegal, only criminals will have guns. It’s a good argument, but unfortunately for gun advocates, it gets buried in discussion of loss of largely imaginary rights and nonsense about citizens protecting themselves against tyranny, being prepared in case we ever have to mount an armed revolt against the federal government, and being ready to blow away the government’s black helicopters when they land on the lawn.

Let’s refine the point to start with — this isn’t about banning “all weapons potentially more lethal than spit-balls and bare fists.” The discussion should center on handguns, those lethal little devices manufactured for the primary purpose of killing people. Granted, if handguns were not available, there would always be a few people who would manage to do violence with long guns, knives, baseball bats, rolling pins, etc. But without handguns, the number of deaths from violence would dramatically fall because other weapons aren’t so easily hidden, carried without being noticed, employed beyond the reach of one’s arm, or accidentally discharged by children playing with them.

So, if there were a law banning handguns (except for a very few obvious exceptions like the military, police, and trained/vetted security personnel), as I believe there should be, in the near term only criminals would have handguns. That’s a fact. However, as time went on and the possession, distribution, and sale of illegal handguns earned violators a lengthy prison term, the general availability of handguns would begin to significantly diminish. Then, as every handgun encountered by police was confiscated and destroyed, the availability would begin to dramatically decrease because there would be progressively fewer handguns in circulation to replace them. Over time, our society would be virtually free of this deadly scourge. Failing to outlaw handguns because criminals would continue to have them for a while is a classic case of sacrificing the good because the perfect can’t be immediately achieved.

The concern about loss of rights if handguns are banned is specious. Let’s compare, for example, freedom of speech with the right to keep and bear arms. Freedom of speech is almost absolute. However, it’s clear that certain speech can be prohibited — the classic example is Oliver Wendell Holmes’ “falsely shouting fire in a theater” (Schenck v. U.S., 1919). Similarly, the right to keep and bear arms is not absolute, and by long-standing precedent it’s subject to very many limitations. Citizens can’t keep and bear functional automatic weapons, mortars, grenades, landmines, howitzers, chain guns, antitank rockets, antiaircraft missiles, shotguns with shortened barrels, silencers (in some circumstances) — the list of constitutionally banned firearms and explosive weapons is long indeed. Just like the prohibition against “falsely shouting fire in a theater” can be seamlessly applied to falsely shouting fire in a church or a football stadium, banning handguns would be a constitutionally easy addition to the already long list of illegal and dangerous firearms and weapons.

Beyond the obvious problems with claiming a violation of rights and asserting the need to be ready for revolution, opposition to banning handguns can’t be validly based on the need for home protection because other legal weapons are readily available and more effective. The real basis for objections to banning handguns is grounded in a uniquely American myth about cowboys, gunfighters, and a wild west that never was, plus an unhealthy macho affinity for packin’ heat.

As to your point about statistics, that’s difficult. You can find about anything you want, but one fact emerges bright and clear for those who are willing to see it — eliminate handguns, and American society will be much less deadly, much more peaceful, and far fewer innocent victims will die.

Dan Miller | July 1st, 2010 at 10:31 am

Tom, I have to concede that you know a heck of a lot more about firearms than I do. I have also to agree with you that the focus should be on handguns (pistols), rather than firearms in general. I also concede that in a perfect world, no civilian would have any need for handguns. It is my understanding, never having owned either, that a shotgun capable of firing at least twice without reloading would be preferable to a pistol for home defense; it takes a lot more skill and practice to fire a pistol effectively than to fire a shotgun effectively. Obviously, carrying a shotgun around in a car or when out for a stroll would be difficult, and I don’t have a solution for that problem. Perhaps a can of pepper spray would suffice.

However, we do not live in a perfect world. You say,

Failing to outlaw handguns because criminals would continue to have them for a while is a classic case of sacrificing the good because the perfect can’t be immediately achieved.

This assumes a fact thus far not in evidence, that perfection can ever be achieved. Violent home intrusions do occur, and it is often difficult to get immediate police assistance.

You say,

The argument goes, if guns are illegal, only criminals will have guns. It’s a good argument, but unfortunately for gun advocates, it gets buried in discussion of loss of largely imaginary rights and nonsense about citizens protecting themselves against tyranny, being prepared in case we ever have to mount an armed revolt against the federal government, and being ready to blow away the government’s black helicopters when they land on the lawn.

I think that the need for citizens to have firearms for that purpose approaches zero; that said, it seems at least possible the the mere possibility of an armed insurrection, with all of the problems likely incident to one, might serve a useful purpose of avoiding one. Assume for a moment that those who “cling to their guns and bibles” may have a point. Let’s also assume that the military would be called out to put down an armed insurrection — by some people with firearms and some with matches to set cars and other things on fire — and that it would obey orders — something not altogether clear to me. In that case, it seems reasonable also to assume that rules of engagement similar to those in effect in Afghanistan would apply and that the military would try very hard to avoid civilian casualties; I can think of no reason why that ROE would apply in Afghanistan but not in the United States. If so, the mere presence of armed civilians could possibly diminish the conflict.

Suppose there were laws banning all handguns, including the now antique pistol carried by grandpa in WWI or WWII and displayed in a glass case. Would such laws apply to it? Be that as it may, rightly or wrongly, it strikes me that many of those who “cling to their guns and bibles” would not willing surrender either and would disobey. How would the law be enforced? Search and seizure based on probable cause?

Would the miscreants who fail willingly to turn in their handguns be prosecuted criminally and perhaps jailed? If so, the already overburdened judicial system and penal system would be even more severely taxed.

Still, lets assume that these problems were to be overcome and that large numbers of handguns presently in the U.S. were confiscated and destroyed. Wouldn’t the seemingly limitless supplies of handguns available overseas come into the country, as do drugs the possession and sale of which are criminal? They continue to enter and our various law enforcement agencies don’t do a very effective job of curtailing their importation.

Why not simply impose harsh mandatory criminal penalties on those who actually use handguns and other firearms in the commission of crimes and those who even though not personally armed particulate in the crimes? Such laws are already on the books and should not impose substantial burdens, at least on the judicial system.

Brian Bagent | July 1st, 2010 at 11:40 am

Dan said Why not simply impose harsh mandatory criminal penalties on those who actually use handguns and other firearms in the commission of crimes and those who even though not personally armed particulate in the crimes? Such laws are already on the books and should not impose substantial burdens, at least on the judicial system.

Precisely.

And as you also pointed out, there is the sticky problem of actually enforcing a ban on handguns. I will not peacefully give mine up.

Tom, your incredulity surprises me. I know you’ve heard of the Warsaw Ghetto uprising, where a handful of untrained and poorly armed Jews held a division or more of wehrmacht at bay for more than a month. True enough that the NAZIs ultimately burned the ghetto to the ground in order to solve that “problem,” but the fact reamins that resistance was made possible at all by the guns (several of which were pistols) and the willingness to employ them.

BTW, there’s a phrase that accurately describes the condition where only the police and military have guns: police state.

You have another enormous problem. Confiscating all handguns, and prosecuting those who don’t willingly turn theirs in, constitutes pretext arrest and prosecution. Criminal law that is just seeks to punish those that have quantifiably injured someone else, either physically or fiscally, or both. There is no ethical authority for the state to bring me harm when I have injured no one.

The desire to have an orderly state does not supersede my right to live my life as I see fit, provided I do not harm anyone in the living of that life. Owning guns, including pistols and revolvers, is a life as I see fit to live it. You, or even a group of like-minded people, have neither ethical nor moral authority to dispossess me of my handguns. In order to do that, you, or your proxies, are going to have to initiate force against me. That makes you, or your proxies, a bully. It epitomizes an ends-justifying-the-means mentality, and is the antithesis of freedom. You may think it better for society, but bollocks to that because it isn’t better for me, and I am a part of society. You are in no position to decide what is best for me.

As Dan pointed out, drop the hammer on those who intentionally and knowingly, or even negligently, misuse handguns. People that initiate force against others deserve to be segregated from civilized society for a long time.

Tom Carter | July 1st, 2010 at 12:04 pm

Dan, to respond to a couple of points:

Souvenir weapons are fine if they’re definitively disabled. That’s been the case for a very long time.

Yes, people who possess, sell, or distribute handguns would be prosecuted and, if convicted, jailed. Search and seizure would of course be based on probable cause and, when appropriate, with warrants.

I don’t mean “perfection” in a literal sense, that there would be absolutely zero illegal handguns in the country. But it could be approached to an acceptable degree.

I don’t think there’s a “seemingly limitless” supply of handguns in the world. If there is, it’s probably based mostly in the U.S. If handguns were illegal in the U.S., of course attempts would be made to smuggle them in. But I don’t think it would be logical to just give up because we can’t protect our borders and enforce our customs laws — we certainly can, if government ever chooses to do it.

I have a fairly easy answer to the problems of currently overcrowded prisons — release all the people now incarcerated for relatively minor drug offenses, don’t send any more to prison, legalize most recreational drugs and tax the hell out of them, and treat drug abuse like we treat alcohol abuse. But that’s a different discussion….

Again, I don’t want to get into a discussion about armed insurrection and/or revolution in the U.S. Absurd propositions (not referring to anything you said, Dan) don’t admit to logical argument.

Your last paragraph is my default position if handguns aren’t to be outlawed (which I know they won’t be). Use of a handgun in the commission of a felony should be a very serious additional offense (as it already is in some jurisdictions) resulting in serious jail time. But I have to ask you — how’s that working out so far?

Final point: Describing some conservatives as people who “cling to their guns and bibles” is not a phrase I’ve ever used, nor will I ever use it. Not that I don’t think there’s sometimes some truth in it; it’s just awkward and difficult to use without indicting folks who don’t deserve it.

Dan Miller | July 1st, 2010 at 1:00 pm

Tom, I realize that you did not use the phrase “people who cling to their guns and their bibles” and did not intend to suggest that you had. As I have seen the phrase used it has generally been in a pejorative sense by some on the left and by others as mocking those who use it. I don’t much care for it, and accordingly enclosed it within quotation marks.

I agree that a lot of court congestion could be reduced and lots of space in jails could freed by legalizing some drugs and taxing them at very high rates; I understand that under taxes newly imposed or proposed a pack of cigarettes in New York City is to cost $10.00. The tax revenues would be helpful if governments could figure out useful, rather than dumb, things to do with them and smoking would probably be reduced (pardon me for a second while I fill and light my pipe). Would such taxes lead to entrepreneurial opportunities for black-market operators? I suspect they would, with corresponding increased in crime, some of it violent. Still, it would probably be a useful experiment and I favor it; on a state rather than federal level.

The United States is not the only place where firearms can be manufactured, and if there is sufficient demand it will probably be met. Even Venezuela, which can’t competently produce much of anything worthwhile, might get into the act; having purchased various things in Venezuela, I learned first hand that quality control is non-existent. If there are to be handguns, I would prefer that the harmful stuff come out the proper end.

Tom Carter | July 1st, 2010 at 1:14 pm

Brian, we’ve been over this thing about the Warsaw Ghetto Uprising before, a long time ago. Again, you’re mischaracterizing it. The fighting lasted just under a month, involving about 750 or maybe up to 1,000 ghetto residents. They received a small amount of support from the Polish underground, including some limited attacks on Germans outside the ghetto walls. They were poorly armed, with pistols, some rifles, grenades, and IEDs and other homemade explosives. The Germans committed about 2,000 troops (certainly not a division) to the effort every day, and of course they were armed will a full range of military weaponry. 300 Germans were killed, and 7,000 Jews were killed — a staggering loss ratio of 23 to 1. Those who didn’t survive died soon in concentration camps. This was the largest uprising of Jews during the Holocaust, and it accomplished nothing, other than having some symbolic value. In the larger context, 6 million Jews were murdered, helpless against the power of states. What, exactly, do you think this example adds to the absurd proposition that there could be an armed insurrection in the U.S., in the first place, and that it could have any chance of success, in the second place?

The definition of a police state is obviously not based on who does and does not have handguns.

Sorry, but “pretext arrest” does not mean what you seem to think it means, at least not by any definition I can find. It certainly doesn’t have any bearing on this discussion, much less create an “enormous problem.”

When you say “criminal law that is just seeks to punish those that have quantifiably injured someone else,” following your logic, it’s also not just to have laws against possession of illegal drugs or anything else the law prohibits. Is that what you mean?

As for all the other libertarian stuff….

Your use of the word “incredulity” is apparently intended to be an insult of some sort related to ignorance or naivete. What the word actually means, however, is being unwilling to admit or accept what is offered as true or, maybe, religious disbelief or lack of faith (you can look it up). A dull barb that bounces off the intended target is best not flung.