Life After Heller

More lawyers, more guns, some nunchuks, and the 14th Amendment

Brian Doherty | May 5, 2009

In a peculiar but not unprecedented turn of events, an anti-gun control plaintiff lost his case, last month's Nordyke v. King, but nonetheless managed to elicit a groundbreaking pro-gun rights declaration from the Ninth Circuit Court of Appeals.

In deciding that it was OK for California’s Alameda County to bar the possession of guns on county property—a law that quashed a gun show that had long been held on county fairgrounds—the Ninth Circuit affirmed that the Second Amendment does control state and local actions as well as federal ones. That was a step farther than last year's decision in District of Columbia v. Heller, when Supreme Court declared authoritatively for the first time that the Second Amendment did indeed protect an individual right to bear arms. That decision concerned only federal actions.

It’s not unusual for an important gun rights principle to be embedded in a decision upholding a gun law. In fact, that outcome has a positive historical pedigree. The same thing happened in the groundbreaking 2001 Fifth Circuit case, U.S. v. Emerson, where the court declared that the individual right to possess weapons existed in principle (as distinct from some collective right connected with militia membership). But the opinion also said that the particular statute at issue, which barred individuals currently under restraining orders from owning weapons, did not violate the right.

What mattered for the future of gun rights was not whether the plaintiff won his challenge (he didn’t). What mattered was that Emerson created a split in judgment over what the Second Amendment meant among the federal judicial circuits. That laid the groundwork for the Supreme Court to take up the question in Heller. Similarly, what’s most important for the future of gun rights jurisprudence with Nordyke is not whether Alameda County will once again see gun shows on its property (it won’t) but that the decision creates a clear circuit split on whether or not the Second Amendment applies, through what’s called “incorporation” via the 14th Amendment, to state and local actions.

Thus, even though the particular gun show operators who fought Nordyke lost, they won a great victory for the gun rights cause and almost certainly laid the ground for a future Supreme Court case. This year has already seen another federal circuit case, the Second Circuit’s Maloney v. Cuomo, which involves a New York ban on nunchuk possession, declare that the Second Amendment does not apply to states or localities. This has been the standard position on Second Amendment incorporation in the federal courts. The plaintiff in Maloney intends to petition for certiorari from the Supreme Court. The Nordyke plaintiffs can’t, since the particular issue on which they lost, a government’s ability to ban or restrict guns on government property, is not an issue on which there is a circuit split the Supremes need to resolve.

Nordyke’s stroll through the court system was long and twisted and the plaintiffs used a variety of legal arguments to try to overthrow the county’s ban. The line of reasoning by Judge Diarmuid F. O’Scannlain in Nordyke has proved particularly interesting as it has attempted to follow the 14th Amendment’s call that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Elements of the federal Bill of Rights might be said to apply to states and localities in at least two ways, and most of the Bill of Rights has already been thus applied. But until Nordyke, the Second Amendment had been glaringly left out. For non-lawyers, the way the 14th Amendment ended up being parsed in Nordyke, and most other cases, might seem peculiar, but here’s how it went.

O’Scannlain declared that the Second Amendment is not one of the “privileges or immunities of citizens of the United States,” precisely because the right is one of “those general civil rights independent of the Republic’s existence,” and not a peculiar possession of Americans as Americans. Peculiarly, it is too important to be imposed on the states via the 14th Amendment by the "privileges or immunities" clause.

Luckily, there is another way. Though you might think “due process” refers merely to the ways or procedures by which government deals with our rights, courts have come to believe in something called “substantive due process.” The Due Process Clause “guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint,” as explained in 1997’s Washington v. Glucksberg.

Thus, as O’Scannlain wrote in Nordyke, if the Second Amendment right is “fundamental, meaning ‘necessary to an Anglo-American regime of ordered liberty’…then the Fourteenth Amendment incorporates it.” And using reasoning analogous to how trial by jury was incorporated on states and localities in the 1968 Duncan decision, he held that the Second Amendment also must be incorporated.

The decision in Nordyke, much like Heller, laid out in convincing detail that the right of self-defense through weapons protected in the Second Amendment is indeed “deeply rooted in this Nation’s history and tradition....The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty."

Still, since Heller’s outline of that right kept it rooted in self-defense in the home, O’Scannlain nonetheless decided that Alameda County could keep its ordinance banning weapons on county property since that restriction did not unduly restrict the core element of the gun possession right as Heller interpreted it.

While the New York Times would have you believe Heller has had few meaningful after-effects, gun rights scholar David Kopel sums up well how significant the decision has been already:

On the day that Heller was decided, the citizens of five Chicago suburbs, and of Chicago itself, were prohibited from owning guns. Residents of apartments provided by the San Francisco Housing Authority were prohibited from owning any gun. Within 24 hours of the Heller decision, gun rights organizations—including the National Rifle Association (NRA) and the Second Amendment Foundation (SAF)—filed lawsuits against the gun bans.

Today, the residents of San Francisco public housing can own guns in their homes. In four of the five Chicago suburbs (Morton Grove, Evanston, Wilmette, and Winnetka), the handgun bans have been repealed.

Moving forward, a series of interesting and potentially game-changing new legal challenges have been launched in Heller’s wake. A sampling of a few:

Comments

The Angry Optimist|5.5.09 @ 6:50PM|#

Someone didn't close a tag.

hmm|5.5.09 @ 6:57PM|#

Any comment or insight on the new Montana law?

|5.5.09 @ 7:32PM|#

DC v. Heller didn't expand gun rights, it rolled back an unconstitutional infringement of those rights.

-jcr

Elemenope|5.5.09 @ 7:37PM|#

DC v. Heller didn't expand gun rights, it rolled back an unconstitutional infringement of those rights.

Plato lives.

|5.5.09 @ 7:42PM|#

It hardly takes a Platonic, other-worldly conception of rights to recognize that individual human beings need and are entitled to possess the means to defend themselves from physical aggression.

Elemenope|5.5.09 @ 7:52PM|#

Where does the entitlement reside?

|5.5.09 @ 7:57PM|#

It doesn't "reside" anywhere. If you want to create a political order that allows individuals to defend their lives and property (and there's a whole host of reasons why you should), you need individual gun rights. If you're interested in other kinds of politics, ones more similar to Plato's brand of collectivism for instance, then you may be able to make a case for denying the existence of gun rights altogether.

Elemenope|5.5.09 @ 8:14PM|#

It doesn't "reside" anywhere.

The ontological principle: Everything that exists exists somewhere.

If you want to create a political order that allows individuals to defend their lives and property (and there's a whole host of reasons why you should), you need individual gun rights.

That doesn't follow. One could approximately as easily argue that a regime could simply make possession of a gun a death penalty offense (making the cost prohibitively high for anyone, including a criminal, to possess one), thus making it not a necessity to own a gun for defense of self and property because nobody else, including those that would presumably threaten you, has one.

Or a person could instead of owning a gun study ninjitsu. Or invest in moats and pit traps. Certainly a state could just as easily legalize and make available such defense activities in lieu of legalizing gun ownership.

|5.5.09 @ 8:21PM|#

LMNOP, you've forgotten the most important principle: good, bad...I'm the guy the with the gun.

|5.5.09 @ 8:26PM|#

The ontological principle: Everything that exists exists somewhere.

Okay, where does truth exist?

One could approximately as easily argue that a regime could simply make possession of a gun a death penalty offense (making the cost prohibitively high for anyone, including a criminal, to possess one), thus making it not a necessity to own a gun for defense of self and property because nobody else, including those that would presumably threaten you, has one.

Except that the point of gun ownership is to protect against all forms of aggression, not just other people with guns. And given the impracticality of banning all knives and blunt objects, or generally just being a big badass dude, firearms serve as the best equalizer yet invented. No point in rebutting with "pepper spray" because it's useless against a tyrannical government, one of the potential sources of aggression.

Don't know how my landlord would feel about me rigging up a moat or pit traps in my little apartment. He'd probably draw the line at boiling buckets of tar, though.

Elemenope|5.5.09 @ 8:45PM|#

Okay, where does truth exist?

Truth is not an object, it's a descriptive term for a correspondence relationship. As such, "truth" doesn't exist, but "truths" (about given propositional sentences) do. "Truth" as it is used grammatically is a collective object for the theoretical set of all possible true propositions. We create grammatical fictions all the time that do not correspond with real objects. Take the noun "nothing", for example. It's a grammatical cipher in place of a real object.

Except that the point of gun ownership is to protect against all forms of aggression, not just other people with guns. And given the impracticality of banning all knives and blunt objects, or generally just being a big badass dude, firearms serve as the best equalizer yet invented.

This is a better argument, though it still fails to support your earlier claims of necessity. I would concede that contingently, there is no better equalizer currently. However, if a better equalizer were invented tomorrow, then guns would immediately lose that status and this argument would crumble.

No point in rebutting with "pepper spray" because it's useless against a tyrannical government, one of the potential sources of aggression.

So's a gun, practically speaking. Many people together with many guns, working in concert...maybe. But one person with their trusty Remington? Not so much.

Jordan|5.5.09 @ 8:48PM|#

Or a person could instead of owning a gun study ninjitsu. Or invest in moats and pit traps. Certainly a state could just as easily legalize and make available such defense activities in lieu of legalizing gun ownership.

The elderly and infirm can't practice martial arts, and even most healthy people will require years of study to become proficient. And you can't take moats and pit traps with you.

hmm|5.5.09 @ 9:07PM|#

A few people with trusty "remingingtons" did pretty well. The assertion that one does not matter is wrong. People do not exist alone as individuals. The ability of a society to defend itself relies on the rights of the individual to do so. Hence the individual right to own the most recent means of equalization. The Colt 1911! Or maybe an AR 15 or two.

|5.5.09 @ 9:19PM|#

It hardly takes a Platonic, other-worldly conception of rights to recognize that individual human beings need and are entitled to possess the means to defend themselves from physical aggression.

In fact, the second amendment recognizes "THE right to keep and bear arms", which means that the right is pre-existing.

-jcr

|5.5.09 @ 10:06PM|#

H&R -- come for the guns, stay for the retarded navel-gazing bullshit.

</|5.5.09 @ 10:41PM|#

Everybody wants to be the new joe.Thank God neu mejican isn't stinkin' up the joint auditioning for the part.

Dr. Rumack|5.5.09 @ 11:00PM|#

Elemenope, Graphite:

I just want to tell you both good luck. We're all counting on you.

|5.5.09 @ 11:03PM|#

I have doubts that gun rights, or rights described the need for "human beings . . . to possess the means to defend themselves from physical aggression" are "natural" rights. I think that you have the natural right to life, and the natural right to defend your life, but I have my doubts that you have a natural right to any particular *means* of defending your life.

But, I have no doubt that said rights are "'deeply rooted in this Nation's history and tradition,' and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed.'" Washington v. Glucksberg, 521 U.S. 702, _____ (1997). Such rights are therefore fundamental for the purposes of the due process clause of the fourteenth amendment, and should be incorporated against the states.

Anonymous|5.5.09 @ 11:07PM|#

but I have my doubts that you have a natural right to any particular *means* of defending your life.

I'll accept that premise. Private property rights already protect my firearm, except when the government decides to infringe those rights.

In fact, unlike the situation in Britain where self-defense with a bat after already being beat bloody is prosecuted, US self-defense infringement more often does take the form of property right infringement.

Anonymous|5.5.09 @ 11:11PM|#

(For more information on the state of self-defence in Britain, Samizdata has some anecdotes.)

|5.5.09 @ 11:21PM|#

Come on, lay off of LMNOP. He's a philosophy student; you can't blame him for wanting to talk philosophy.

|5.5.09 @ 11:34PM|#

Hi, how are you today? Allow me to invite you to a cougar dating community ____ Cougarster. C om ____ It's where mature women and men who like them can meet.

cuernimus|5.5.09 @ 11:37PM|#

If you have to use the "natural rights" argument to defend the 2nd Amendment, you have lost the debate. When your opponent is a hoplophobic atheist who is assured that his or her personal beliefs are the most correct, you will not get far by stating that your rights are either given to you by a god or that they somehow exist outside the realm of laws. You would be much more successful if you took your opponents other beliefs (feminism, racial/income equality) and then showed how gun control laws harm these individuals the most (women/their children who are beaten to death by spouses, poor minorities have the least access to police and guns and are thus at the most risk).

Come on, lay off of LMNOP. He's a philosophy student; you can't blame him for wanting to talk philosophy.

Actually, I think a lot of the posters here lack the reading comprehension necessary to realize that LMNOP isn't a gun banning liberal but is instead just a pedant sharpening peoples arguments.

Hi, how are you today? Allow me to invite you to a cougar dating community ____ Cougarster. C om ____ It's where mature women and men who like them can meet.

I think Naga actually posts more during the day, try again later.

Anonymous|5.5.09 @ 11:40PM|#

You would be much more successful if you took your opponents other beliefs (feminism, racial/income equality) and then showed how gun control laws harm these individuals the most (women/their children who are beaten to death by spouses, poor minorities have the least access to police and guns and are thus at the most risk).

Yes, let's abandon the philisophical basis for the Bill of Rights. Dead old white men, right? In this brave new world of relativism, only the Oppressed have Rights. Shall we rally under the Arc tonight, Pierre? Bring your red flag!

|5.5.09 @ 11:41PM|#

Rumack:

I think the thread is on Otto Pilot

Elemenope|5.5.09 @ 11:59PM|#

Actually, I think a lot of the posters here lack the reading comprehension necessary to realize that LMNOP isn't a gun banning liberal but is instead just a pedant sharpening peoples arguments.

:-)

I would add to that an explicit formalization of my method (because I'm a pedant!):

I believe "A".

Everyone around me says "A".

Narcissus/Echo dialogues are not only really fucking boring but also do not help to explicate "A".

So I says to everyone I says "B".

Not because I care about "B", but because I care about "A", or more specifically, how both "A" as an idea interacts with "B", but also how people who hold "A" deal practically with the assertion of "B" (a two-for-the-price-of-one experiment).

If the defenders of "A" eviscerate "B", I understand how to defend "A" better. If the defenders of "A" fail to eviscerate "B", I need to reevaluate my stance towards both "A" and "B".

And either way, I gain a better understanding of the people who tend to hold "A" as true.

Elemenope|5.6.09 @ 12:03AM|#

If you have to use the "natural rights" argument to defend the 2nd Amendment, you have lost the debate. When your opponent is a hoplophobic atheist who is assured that his or her personal beliefs are the most correct, you will not get far by stating that your rights are either given to you by a god or that they somehow exist outside the realm of laws.

As a hoplophilic* Atheist who has no idea whether in the end I'm really right or not, I' have to agree with cuernimus completely on this. If your object is to convince people, you have to do it on their terms (using frameworks they use and understand and agree with). To demand instead to use your own is to guarantee a stupendously high rate of failure.

* (No, not that way, Epi.)

Dr. Rumack|5.6.09 @ 12:11AM|#

Elemenope, Graphite:

I just want to tell you both good luck. We're all counting on you.

cuernimus|5.6.09 @ 12:24AM|#

Yes, let's abandon the philisophical basis for the Bill of Rights. Dead old white men, right? In this brave new world of relativism, only the Oppressed have Rights. Shall we rally under the Arc tonight, Pierre? Bring your red flag!

It's great that you believe in the philosophy behind the Bill of Rights, but a lot of people you are going to be arguing with (who will be voting on YOUR rights) haven't even read the Constitution, much less John Locke. So convince them on their own level, then recommend that they read up on their history, but don't expect them to agree with you (and vote accordingly) when they have no fucking clue what you are talking about.

I just want to tell you both good luck. We're all counting on you.

Surely you can't be serious.

|5.6.09 @ 12:33AM|#

(No, not that way, Epi.)

Mm'kay, dude.

So convince them on their own level

For many, their "level" is that of irrationality and emotion. I have dealt with people like this--nice, pleasant people who I liked, yet irrational. It is virtually impossible to get them to change their opinion, because their belief is essentially religious in nature.

Honestly, with these types, it doesn't matter what approach you take. It's like attempting to convince a truly religious person that Satan (insert any dark lord of choice here) isn't a bad guy. Ain't. Gonna. Happen.

Believe me, I've tried. Several different arguments, in fact. I gave up.

|5.6.09 @ 12:34AM|#

I am serious. And stop calling me Surely.

|5.6.09 @ 12:36AM|#

Oh, and guys, "Dr. Rumack" is an Airplane! joke. Leslie Nielson's character.

|5.6.09 @ 12:37AM|#

Damn you Graphite!

|5.6.09 @ 12:37AM|#

Looks like I picked the wrong week to quit amphetamines.

Ted Striker|5.6.09 @ 12:55AM|#

Believe me, I've tried. Several different arguments, in fact. I gave up.

You need to take a different tact altogether.

Morris|5.6.09 @ 1:13AM|#

"So many guns, so few brains"--Sam Spade

Morris|5.6.09 @ 1:16AM|#

Sorry, it was Philip Marlowe.

|5.6.09 @ 1:29AM|#

Oh man! If you would have waited just one day longer you could have included the grand daddy of all Ca/9TH CIRCUIT/2nd Amend. law suits (THE RIGHT TO BEAR SUIT) just released today: PRESS RELEASE HERE http://www.calguns.net/calgunforum/showthread.php?t=180923

"BELLEVUE, WA and REDWOOD CITY, CA - The Second Amendment Foundation, The Calguns Foundation and three California residents today filed a lawsuit seeking to vindicate the right to bear arms against arbitrary state infringement.

Nearly all states allow qualified law-abiding citizens to carry guns for self-defense, but a few states allow local officials to arbitrarily decide who may exercise this core Second Amendment right. In the action filed today, Plaintiffs challenge the policies of two California Sheriffs, in Sacramento and Yolo counties, who reject the basic human right of self defense by refusing to issue ordinary people gun carry permits. Of course, violent criminals in the impacted counties continue to carry guns without police permission..."

El Guapo|5.6.09 @ 1:50AM|#

I have the unalienable individual, civil, Constitutional, and human right of every man, woman, and responsible child to obtain, own, and carry, openly or concealed, any weapon-rifle, shotgun, handgun, machinegun, anything-any time, any place, without asking anyone's permission.

That's how I live my life. Why don't y'all do the same?

Elemenope|5.6.09 @ 2:05AM|#

Believe me, I've tried. Several different arguments, in fact. I gave up.

That's because you are trying *arguments*. For the irrational, a story-telling tack is more effective. For a person who is against guns because "they're dangerous", you need to paint a picture in their minds of a plausible circumstance in which not having a gun would put their child/spouse/friend at risk. In such cases, painting the picture effectively is more important by far than the conclusion following logically from the premises because, as you say, they are immune to logic.

All that they need to remember from the picture you paint is that there are dangerous people out there, they all have guns, and the cops are too far away to be relied upon to help.

|5.6.09 @ 2:35AM|#

Where does the entitlement reside?

The right to defend oneself exists in each individual. When survival is at stake, any perfectly reasonable person will use the best means available to defend life or anything else he deems as valuable, regardless of any rules to the contrary. In such a circumstance, the consequences of violating any rule are insubtantial.

That doesn't follow. One could approximately as easily argue that a regime could simply make possession of a gun a death penalty offense (making the cost prohibitively high for anyone, including a criminal, to possess one), thus making it not a necessity to own a gun for defense of self and property because nobody else, including those that would presumably threaten you, has one.

People commit offenses punishable by death every day, so it does not follow that gun possession would be eliminated if it were a capital offense. Government could presumably pose a threat to the individual, so we would have to their guns as well. And let's not forget foreign threats; although, it would seem difficult to prevent them from possessing guns if we were unarmed.

The fundamental problem with the notion of gun control is the assumption that the effective prohibition of gun possession is possible. The genie is out of the bottle, so to speak. To prevent the possession of firearms, you would need to effectively prohibit fire, steel, and/or basic chemicals. And even then, clever people would find subsitutes.

(any errors in HTML tags are the result of the influence of an irresponsible quantity of Negra Modelo)

Elemenope|5.6.09 @ 3:38AM|#

People commit offenses punishable by death every day, so it does not follow that gun possession would be eliminated if it were a capital offense.

Very few people commit offenses punishable by death. It is logical to assume that as the marginal cost of an activity is increased sharply, one is likely to see less of that activity, and concomitantly it is very likely that crimes involving guns would drop to *nearly* zero if possessing a gun were a crime punishable by death.

The fundamental problem with the notion of gun control is the assumption that the effective prohibition of gun possession is possible. The genie is out of the bottle, so to speak. To prevent the possession of firearms, you would need to effectively prohibit fire, steel, and/or basic chemicals. And even then, clever people would find substitutes.

Most people are not clever, and the overall policy purpose would be achieved (i.e. most people would not have firearms, those that did would be basically ineffective, and very very few people would be *both* clever enough to own a gun and *stupid* enough to commit a capital crime by possessing one unless they were engaging in something for which risk of death is a worthy exchange).

|5.6.09 @ 7:43AM|#

H&R -- come for the guns, stay for the retarded navel-gazing bullshit.

Let's don't forget the masturbatory thought exercises, although it's probably more like having Rob Liefeld draw a picture of Truth.

MNG|5.6.09 @ 7:45AM|#

"Except that the point of gun ownership is to protect against all forms of aggression, not just other people with guns. And given the impracticality of banning all knives and blunt objects, or generally just being a big badass dude, firearms serve as the best equalizer yet invented."

I don't think this is a good argument, unless you assume that in aggression circumstances the party in the right is usually the one that needs an equalizer. It's like an argument that says "we need to have access to guns because some of us are pussy wimps." I mean, we don't want to equalize things for the aggressor (he could have a gun and the victim who otherwise could kick his ass may not).

To me the argument against gun control has always been about this: the vast majority of people who own guns don't harm anyone with them, ever. We have laws already against doing bad things with guns. But mere ownership is not in itself a bad thing, and given most people that fall into that class don't ever do bad things it's wrong to go after mere ownership (I think the same can be said of carrying as well). It's like the craigslist thing: the vast majority of people who use it don't use it to do anything wrong, why restrict it because of the few people who do? Have laws to punish the people who do when they do and leave the law abiding alone...

MNG|5.6.09 @ 7:51AM|#

I actually agree with LMNOP though that if we had strict gun control laws then
1. Less people would own them
2. Less people would die due to gun inflicted wounds

But I also think we would have a situation in which a huge slice of the population would have something they derived a great deal of satisfaction from having and using a thing deprived from them, many of whom could say it was a part of their cultural heritage, and these people would never have contributed to number two above. I know it sounds trite but we would have many less people dead if we banned cars and had mass transit for folks too, but that seems wrong to me as well. Most people that own cars use them responsibly and many derive a great deal of utility from owning/using them. Why deprive them of that because of the fraction that do not? We have laws to deter the use of them that we object to.

Barry Loberfeld|5.6.09 @ 8:55AM|#

How to talk to both liberals AND conservatives about the 2nd Amendment.

bcr229|5.6.09 @ 9:27AM|#

Heller II was filed in DC earlier this year. It challenges several points in the gun control laws that DC passed last December, including California's "approved handgun roster", and the ban on semi-automatic rifles.

More information is available at http://www.hellerfoundation.org/ (please excuse the site format - Mr. Heller is maintaining it himself, and he's not a web developer by trade).

|5.6.09 @ 10:13AM|#

I think that you have the natural right to life, and the natural right to defend your life, but I have my doubts that you have a natural right to any particular *means* of defending your life.

What we need here is a clear and widely accepted definition of "rights".

There is a wide spectrum of definitions to choose from. The talking past each other on this issue is mostly from people who have different definitions. They are literally talking about different things.

On one end of the spectrum is a "natural rights" approach, where the rights are Platonic entities that exist independently of people's acceptance or recognition of them. Modern folk have a hard time with Platonism, for a variety of reasons.

At the other end of the spectrum is the legalistic positivism, which actually goes back to Oliver Wendell Holmes, where rights don't exist unless you can actually exercise them because the State both recognizes and respects them. This tends be deeply unsatisfactory, as you wind up with the conclusion that you have no rights that the State doesn't grant to you.

|5.6.09 @ 10:15AM|#

I don't think this is a good argument, unless you assume that in aggression circumstances the party in the right is usually the one that needs an equalizer.

I think it goes without saying that the victim of aggression needs an equalizer/effective means of self-defense, MNG. I'm not sure why you think the argument for gun rights as an essential element of effective self-defense requires any recognition of a "right" an aggressor to use guns wrongfully.

Joel|5.6.09 @ 10:39AM|#

H&R -- come for the guns, stay for the retarded navel-gazing bullshit.

:-)

I don't know much about Plato, nor care very much about what some court says. I carry weapons because the ability to mount an effective defense is part of the mandate of any fully-mature creature, and because I'm a scrawny worn-out specimen of my species and any thug could beat the shit out of me.

Also because I want to. My magazines are full, and any thug - uniformed or otherwise - who wants to argue with my erudite philosophical bullshit should keep it in mind. How's that for libertarian navel-gazing?

MNG|5.6.09 @ 11:05AM|#

Dean
You misunderstand me. Guns can shift the advantage that would naturally be there for the physically more capable of two combatants, but it can shift it for the morally worthy party (a gun in the hand of a person being attacked without provocation) or in favor of the morally unworthy (a robber who pulls a gun on a bigger, stronger victim). This is why saying we need guns because they shift the natural advantage is not a good argument.

Kreel Sarloo|5.6.09 @ 11:15AM|#

...if we had strict gun control laws then
1. Less people would own them
2. Less people would die due to gun inflicted wounds

Neither of those necessarilly follow.

Britain's traditionally very low homicide rate has steadily increased since the first gun control laws were passed in the 1880s. It is, of course, still low, but the trend is upwards even though individual years may see

Fluctuations in the USA's traditionally rather high homicide rate have followed trends other than gun control laws (prohibition, both alcohol and drugs, seem to have some affect) except that no gun control law has ever seen a reduction in homicide rates (unless there was a trend already underway in that direction) after being passed.

No correlation seems to be able to be found for gun control laws and homicide rates. Mexico and Jamaica with extremely strict laws have among the highest rates in the world while Switzerland, whose gun laws rank with some of the least restrictive US states*, has a even lower rate than the UK.

*although this is changing due to EU pressure.

Kreel Sarloo|5.6.09 @ 11:16AM|#

...the trend is upwards even though individual years may see reductions.

|5.6.09 @ 11:27AM|#

MNG-

Elemenope's argument is pure speculation. Reality says otherwise.

|5.6.09 @ 11:38AM|#

Actually, there is a very clear boundry of what the line is for gun control. The right to keep and bear arms is not open for interpretation. What can be regulated is how and when those arms can be used. Self defense, hunting, target shooting and other legal uses can not be prohibited, but having an ordinance against the indiscriminate discharge of a firearm is lawful.

So it is not whether or not one can have firearms, but under what conditions they may be used. Making their use totally illegal (ie, in self defense) would not be legal.

This same principle applies for almost everything. One can own an automobile, but they can not just go out and race all over the place.

jg6|5.6.09 @ 12:24PM|#

"1. Less people would own them
2. Less people would die due to gun inflicted wounds"

You say that as if either of these is automatically a Good Thing.

I want to see more intended victims armed.

I want to see more intended victims help their victimizers die due to gun-inflicted wounds.

LarryA|5.6.09 @ 2:20PM|#

One could approximately as easily argue that a regime could simply make possession of a gun a death penalty offense (making the cost prohibitively high for anyone, including a criminal, to possess one), thus making it not a necessity to own a gun for defense of self and property because nobody else, including those that would presumably threaten you, has one.

Picture an 80-year-old woman in a wheelchair. Most of the people who would threaten her don't need a gun to do so. A firearm is the one and only tool that would give her the means to resist. That's a "necessity."

Or a person could instead of owning a gun study ninjitsu.

In a wheelchair?

Or invest in moats and pit traps.

Totally useless outside your own property, and if you have to get through them in a wheelchair not very effective.

Certainly a state could just as easily legalize and make available such defense activities in lieu of legalizing gun ownership.

See "nunchuks." States that ban firearms have a dismal record of encouraging, or even allowing, other self-defense tools.

Where does the entitlement reside?

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.

but I have my doubts that you have a natural right to any particular *means* of defending your life.

But I don't doubt you have a right to the most effective means.

It is logical to assume that as the marginal cost of an activity is increased sharply, one is likely to see less of that activity, and concomitantly it is very likely that crimes involving guns would drop to *nearly* zero if possessing a gun were a crime punishable by death.

Look south. In Mexico possession of a single .22 rimfire cartridge is punishable by a long term in a Mexican prison, arguably a harsher punishment than death. Crimes involving guns up to and including 60mm grenade launchers are rampant.

Most people are not clever, and the overall policy purpose would be achieved (i.e. most people would not have firearms, those that did would be basically ineffective, and very very few people would be *both* clever enough to own a gun and *stupid* enough to commit a capital crime by possessing one unless they were engaging in something for which risk of death is a worthy exchange).

Like any black market?

I don't think this is a good argument, unless you assume that in aggression circumstances the party in the right is usually the one that needs an equalizer.

A pretty valid assumption. Eighty-year-old women in wheelchairs don't usually pick on 20-something criminals.

Guns can shift the advantage that would naturally be there for the physically more capable of two combatants, but it can shift it for the morally worthy party (a gun in the hand of a person being attacked without provocation) or in favor of the morally unworthy (a robber who pulls a gun on a bigger, stronger victim). This is why saying we need guns because they shift the natural advantage is not a good argument.

Then add the point that gun control is far more likely to prevent the first instance than the second. London's black market is flooded with all kinds of firearms, for sale or rent to the "morally unworthy."

Jon|5.6.09 @ 8:55PM|#

The 9th Circuit's decision (re incorporation) is great but I sincerely doubt Heller will prove to be the watershed case Doherty expects. Saying that the Second Amendment protects an individual right to own and possess firearms and saying that this right applies *IN FULL* to the states are two different things. The 2nd Amend. certainly is not alone among rights in the Bill of Rights to not be incorporated. For instance, the Grand Jury requirement in the 5th does not apply to the states. Nor does the 7th Amendment (right to jury in civil cases).

Note that Scalia, who penned the majority opinion in Heller, has publicly stated that he thinks that substantive due process is a judicially created enterprise not found in the Constitution (and thus dubious). Moreover, Justice Thomas--about as states' rights as they get--will have to reconcile this should he decide that the 2nd applies to the states.

Maybe the Supreme Court will take this (I doubt it--it is statistically very unlikely, for one), but Heller was a 5-4 decision and incorporation would propose to widely expand rights beyond Heller.

|5.7.09 @ 2:15PM|#

The Nordyke decision was a somewhat mixed victory for the Second Amendment because they still ruled that the County (LA county?) could forbid gun shows on the county fair ground for no other reason than that they wanted to. The 9th called this "reasonable" (a term well liked by Obama) as I understand it.

Anyway, I particularly sympathize with the following pessimistic comment to the blog article which tracks very well with current anti-gun efforts, is not too far from the truth in some states now, and would fit in very nicely with Obama's endorsement of "2nd Amendment rights subject to reasonable restrictions" :

http://armsandthelaw.com/archives/2009/04/nordyke_v_king_2.php#comments

"Anyway, though I welcome this decision (Nordyke), I stand by my earlier prediction that even formal incorporation will not do RKBA (Right to Keep and Bear Arms) much good in the lower courts. Even this decision points the way: RKBA is to be quietly euthanized by balancing tests. Effigies representing the ghost of RKBA will be paraded in courtrooms from time to time but they will always remain silent, of course.

In every case, whatever gun restriction is being challenged will be upheld as "reasonable."

Soon enough there will be no lawful (that is "reasonably restricted") way to have a gun unless you inherit it from someone who bought it before 1968. That's assuming you can even get a personal-firearms-possession-license-- the license fee will be 10% of your Form 1040 Line 38 Adjusted Gross Income, and your license may be refused or revoked anytime without notice on the "reasonable" whim of any sheriff, police chief, or deputy State attorney. You'll have to store your gun at all times, other than your reasonably-allowed (single) annual trip to the (only) State-licensed shooting range, disassembled in a government approved floor safe (which you must remove if you ever sell or vacate your home), subject to warrantless surprise inspections four times yearly (inspection fee $350 per inspection). Also you will have to pay a $200 fee to re-register each gun annually (with confiscation and possible prosecution for unlicensed possession the punishment for late renewal).

Your credit card, supermarket affinity card, and bank records will be provided to the Brady Campaign and if you ever purchase beer, liquor, cigarettes, red meat, Kraft cheese, or Hostess Twinkies (or attend a boxing match) the Brady bunch will report you to the State Attorney's office which will revoke your personal firearms possession license, then immediately indict you for unlawful possession.

Reasonable restrictions on ammunition will limit you to buying or reloading one box of 50 or fewer cartridges in any 13-month period. Of course you'll have to order cartridges or components 3 months in advance since both bullets and cases must be individually engraved with your Social Security Number plus a unique serial number and the propellant must contain 1% taggants marked with your personal firearms possession license number. Anyway, you won't need much ammo because you will be reasonably restricted to firing it at the state's (only) licensed shooting range, where range staff must count and log by serial number all of the ammo in your bag on the way in, and again on the way out, so the State has a reasonable record of which cartridges you fired lawfully. During warrantless surprise inspections of your licensed gun safe you will have to produce all unfired cartridges which State records indicate you ought to possess. If any are missing you will be presumed (rebuttably, of course) to have fired them unlawfully. You will be tried on one count for each missing component (case, bullet, propellant charge, primer) of a cartridge, for each day it was missing (that is, since it was last logged by personnel at the (only) State-licensed shooting range, unless you confess to unlawfully firing it or leaving it where a child could take it on a specific date prior to the date the inspectors discovered you could not produce it) but the maximum penalty for each count will be just 360 days, so you will not be entitled to a jury trial-- none of the "missing ammo" charges against you will be "felonies," even though the penalty upon conviction on all counts will be decades in prison.

There is no end to the parade of "reasonable" restrictions antigun fanatics will dream up and write into law. As soon as an appeals court lets any restriction pass as "reasonable" the underlying Constitutional right has been thrown down the cloaca maxima.

Posted by: Boadicea at April 20, 2009 04:10 PM"


By the wayRe: "Elemenope | May 5, 2009, 7:52pm
Where does the entitlement reside?"

This is anthropomorphism and as such is a logical fallicy. Only beings can "reside".

Justen|5.8.09 @ 6:30AM|#

Natural rights exist in any case where the 'natural' circumstance, without intervention by others, is the default. I have a natural right to live; unless you kill me, I am alive. I have a natural right to my personal affects; absent thievery, there is nothing to deprive me of them. I have a natural right to travel; absent restraint, I am empowered to move. I have a natural right to my own thoughts; absent you to dictate to me what is and is not appropriate, my mind may wander in any direction it pleases.

I do not have a natural right to kill others; this interferes with their natural right to life. I do not have a natural right to take from others; this interferes with their natural right to their property. I do not have a natural right to imprison; I do not have a natural right to dictate to others what they may think or believe (though I certainly have a natural right to orate at length about my own beliefs).

I have a rational right to defend my natural rights. If I may not fight back against a murderer, a thief, or an enslaver, my right is destroyed by his simple disregard for it, and in practicality it ceases to exist in the presence of any evil. A rational right therefore derives from a natural right. Any right which is neither natural nor rational is probably a privilege.

My right to own a gun, therefore, is a natural right and irrevocable. My right to fire it is a rational right, subject to circumstance. Taking my justly acquired gun violates my rights; telling me I may not fire it may or may not violate my natural right. Intent and circumstance are everything, the object is both irrelevant and untouchable in any case by any presumed 'right' of the state.

Justen|5.8.09 @ 6:36AM|#

As far as the decision in this case, I guess it hinges on whether you consider public property free land, wholly owned by each individual, or whether you consider it community property divisibly owned in part by each individual. In the latter case it is the community's right to decide democratically what may and may not be done on it, assuming democratic process is the most rational and fair way to dispense of jointly owned property.

These guys can still have a gun show on any private piece of property presumably; if they don't like what the county wants done on the fairgrounds, they can pool their money and rent a large ranch for the same purpose.

|5.13.09 @ 10:12PM|#

The gun control movement has to use fraud to bolster its case. Sometimes it uses arguments that are quite silly, such as this one:

//rhrealitycheck.org/reader-diaries/2009/05/09/gun-control-is-a-reproductive-justice-issue-some-thoughts-mothers-day?page=1