Ballots & Bullets

Which would-be presidents are good on gun rights? Dave Kopel rates the candidates.

Comments

[Lamar]

I wish Kopel would have given a hint as to his criteria. It seems to me that a "Record of anti-Second Amendment leadership" doesn't really mean much. Since Kopel completely disregards federalism in his analysis, I'll go ahead and disregard his idiotic list. Yeah, Rudy Giuliani was anti-gun, HE WAS THE MAYOR OF NYC, for chrissakes. Does Kopel have a clue as to Rudy's position on guns at the federal level or in Missouri? Of course not, that would require research.

[Spaking of Ballots...]

As a white liberal running in a majority African American district, Tennessee Democrat Stephen I. Cohen made a novel pledge on the campaign trail last year: If elected, he would seek to become the first white member of the Congressional Black Caucus.

Now that he's a freshman in Congress, Cohen has changed his plans. He said he has dropped his bid after several current and former caucus members made it clear to him that whites need not apply.

"I think they're real happy I'm not going to join," said Cohen, who succeeded Rep. Harold Ford, D-Tenn., in the Memphis district. "It's their caucus and they do things their way. You don't force your way in. You need to be invited."

Cohen said he became convinced that joining the caucus would be "a social faux pas" after seeing news reports that former Rep. William Lacy Clay Sr., D-Mo., a co-founder of the caucus, had circulated a memo telling members it was "critical" that the group remain "exclusively African-American."

Other members, including the new chairwoman, Rep. Carolyn Cheeks Kilpatrick, D-Mich., and Clay's son, Rep. William Lacy Clay, D-Mo., agreed.

"Mr. Cohen asked for admission, and he got his answer. ... It's time to move on," the younger Clay said. "It's an unwritten rule. It's understood. It's clear."

The bylaws of the caucus do not make race a prerequisite for membership, a House aide said, but no non-black member has ever joined.

Rep. Pete Stark, D-Calif., who is white, tried in 1975 when he was a sophomore representative and the group was only six years old.

"Half my Democratic constituents were African American. I felt we had interests in common as far as helping people in poverty," Stark said. "They had a vote, and I lost. They said the issue was that I was white, and they felt it was important that the group be limited to African Americans."

Cohen remains hopeful, though, that he can forge relationships with black members in other ways.

"When I saw the reticence, I didn't want anyone to misunderstand my motives. Politically, it was the right thing to do," he said. "There are other ways to gain fellowship with people I respect."

Cohen won his seat in the 60 percent black district as the only white candidate in a crowded primary field. If he faces a primary challenge next year from a black candidate, as expected, some Black Caucus members may work to defeat him.

A similar situation arose in 2004 after redistricting added more black voters to the Houston district of former Rep. Chris Bell, D-Texas.

Although House tradition discourages members of the same party from working against each other, about a dozen black lawmakers contributed to Bell's opponent, Rep. Al Green, D-Texas, the eventual victor. Even Bell's Houston neighbor, Rep. Sheila Jackson Lee, D-Texas, campaigned against him.

One black member who criticized his colleagues for sandbagging Bell was Cohen's predecessor, Harold Ford.

"You have an incumbent, and you don't support an incumbent? It was inappropriate," Ford told Congressional Quarterly in 2004.

Cohen has won high marks for hiring African Americans. A majority of his staff is African American, he said, including his chief of staff.

[tarran]

Lamar,

you did read the part where he asked people to post additional information/corrections in the comments section right?

I thought Guiuliani was a big wheel in the conference of mayors which were demanding that the Federal govt enforce/pass more gun-control laws since people were smuggling the banned weapons from freer parts of the country (kind of a fugitive slave law in reverse). In fact, I think he was one of the leaders of the charge.

Personally anybody who could advance a jloob Bernard Kerik to any position of responsibility scares me. Kerik played a very important role in the U.S. losing the war in Iraq.

[Pi Guy]

Guns don't kill. Husbands who come home from work early kill.

[Pi Guy]

Sorry. I just had to say that.

[Lamar]

"you did read the part where he asked people to post additional information/corrections in the comments section right?"

Yeah, I posted something there, at your request. Now I feel dirty for participating in such a poorly researched farce. BTW: I'm not a Rudy fan, so don't pin that bullshit on me. I'm merely saying that we don't know his position. If you think his position is the same as 15 years ago while schmoozing mayors, well, there's a bridge I have for sale, special price.

[Jennifer]

Stephen I. Cohen made a novel pledge on the campaign trail last year: If elected, he would seek to become the first white member of the Congressional Black Caucus.

Sounds like he did indeed "seek" to join the Caucus, though they didn't let him in.

[joe]

Wait a minute, bub.

"Mixed: Sen. John McCain (R-Ariz.)(mostly positive record, except for lead sponsorship of two terrible bills: McCain-Lieberman...and McCain-Feingold, the campaign speech restriction law which significantly affects right-to-arms groups"

Using this logic, I could assign McCain a "mixed" record on campaign finance reform, based on the fact that M-F "significantly affects" groups that advocate in favor of campaign finance reform.

That's some serious shoe-horning right there.

[Karl]

Lamar -
"...completely disregards federalism in his analysis...". Why is the support for the second a federalist issue? Is it for the 1st? How about the 4th? What if Rudy had advocated "Separate but equal" as the mayor of a small southern town? Would Kopel be wrong to bring that up as an indicator of his stance on civil rights? How about if advocated door to door searches on main street for drugs? Would that have no bearing on how he would act vis the 4th in a federal capacity?

I honestly don't get your 'federalism' problem on this issue.
-Karl

[Lamar]

Karl: You would agree that regulation of firearms has traditionally been a subject of state law, correct? If you can't see a difference between unrestricted guns in NYC as opposed to in Kansas, then why am I wasting my time? I am pro-gun, but there are places where guns are incredibly dangerous. Are you not familiar with the transformation of NYC under Giuliani? Does his experience in NYC mean that he favors gun restrictions in Eustis, FL? Somehow I doubt it, and there's where federalism comes in.

All the other rights you listed are not affected by population density.

Federalism works because we don't have to have some BS, one-size-fits-all gun law. Therefore, any attempt to assess a politician's stance on the Second Amendment fails when it omits discussion of federalism and gun rights.

[karl]

Lamar - I was not a aware that the Bill of Rights (at least the 2nd) had a population density amendment. Even ignoring the fact that Guiliani has called for federal control because of the claim that lax laws in neighboring states were undermining his local gutting of the Bill of Rights (I believe, feel free to correct that misconception), you can not pick and choose which parts of the Bill of Rights are subject to Federalism and which are not. Your position amounts to "I think New York is better because Guiliani restricted guns, therefore, I can ignore the 2nd Amendment". Careful, someone may come up with a very good reason why the 1st needs to be restricted in certain locales and you will not have a leg to object on.

I guess my basic question is why must we discuss federalism in the context of the 2nd, but not the others? Or does it all come down to you think there are mitigating factors that allow the restriction of firearms under the auspices of federalism, but not other aspects of the Bill of Rights? Or do would you have no problem with applying the same reasoning to the 1st Amendment?
-K

[Kwix]

Lamar,
Population as a factor? How is NYC different than D.C.? Well, let's see, DC only has a population of 500k people and hand guns are completely illegal, yet it ranked 13th highest in terms of murders for the U.S. in 2005 yet cities with larger populations and far more liberal gun laws ranked lower on the list (Miami(58),LA(76),Las Vegas(92)) and NYC didn't even make it into the top 100 despite Bloomberg having the riens for the previous four years.

As for Federalism, the 2nd guarantees that the RTKBA shall not be abridged and the 10th amendment makes it applicable to the entire nation. Sorry but your Federalism argument is bunk. If Guliani wouldn't abide by the Constituion as governor, I sure as hell doubt he will do it as Prez.

[VM]

joe - ssssshhhhhh. they'we hunting wabbits.

karl: simply a talking point.

[Lamar]

Karl: You were not aware that the Second Amendment had a population density requirement? I would say it falls within the "well regulated" language of the amendment and the "well regulated" language is why Giuliani didn't really "gut" the Bill of Rights (he gutted the BoR on many issues, but guns I think he did OK). So, what constitutes "well-regulated"? I don't know for sure, but I know that a federal, one-size fits all isn't appropriate. As to the other amendments, none of them say that the rights they protect or people exercising them should be "well regulated."

Kwix: How is NYC different than DC? First, you answered your own question. DC is a podunk little hamlet compared to NYC (500,000 people? How quaint!). Second, it really doesn't matter the similarities because gun control could work in one town and not in another, even statistically identical cities. My whole point is that local communities should decide what works for them, not the US Congress. The only thing communities can't do is ban guns, and NYC hasn't done that. But I refer you to the "well regulated" language. It isn't mere surplusage.

[Karl]

Lamar - What constitutes well regulated? "Well regulated" != "Controlled by the Mayor of NYC". In the language of the day "Well regulated" == "Well trained".
-K

[Lamar]

Karl,
I honestly don't know what "well regulated" means. If it means "well trained" then we have a problem with training people to use guns and any issue with training lends more importance to the militia aspect of the amendment. I'm not in favor of giving more importance to the militia business. What does "well trained" mean? (Too bad it doesn't mean "well aimed") I think gun rights for all will be preserved if we leave regulations up to the locals, with assurances that guns will not be regulated out of existence. I know you are pro-gun across the board, and I'd rather have people like you around than anti-gun people, but I also give credit to Rudy G. for cleaning up the place, and gun laws were a part of that.

[Gilbert Martin]

"well regulated" only applies to people in the militia - as per the dependent clause of that sentence that comprises the 2nd Amendment. But the right to keep and bear arms is "of the people" as per the independent clause of the sentence.

And, by defintion, nothing in an independent clause is dependent on anything in a dependent clause.

[mediageek]

"Does his experience in NYC mean that he favors gun restrictions in Eustis, FL? Somehow I doubt it, and there's where federalism comes in."

Lamar, if Rudy truly believes that gun control should be a state-level issue, please post links to his statements asking that the Gun Control Act of 1968 and National Firearms Act of 1934 be repealed.

Surely he has also called for defunding the section of the BATFE that is in charge of prosecuting federal "gun crimes" as well.

[mediageek]

Lamar, I'm still waiting.

[joe]

'"well regulated" only applies to people in the militia'

The militia is the people, armed. Otherwise, there would be no connection between having a "well regulated militia" and allowing the people to keep and bear arms.

It's an odd amendment. What other entry in the Bill of Rights contains a justification for why that right exists? What other amendment gives with one hand and takes away with the other?

[Josh]

Where does the 2nd 'take away'?

[joe]

What other amendment states openly that the right it protects is subject to regulation, right in the same sentence that grants the right?

We don't read, "Well-regulated discourse over political matters being necessary to a free society, freedom of speech shall not be abridged."

We don't read, "The well-regulated disposition of military personnel in private homes being necessary for the maintenance of a free nation,..."

But in the 2nd, the language of the amendment itself - and not only the backstory, but the amendment itself - states that the regulation of the bearing of arms is not only consistent with the right to bear arms, but the very reason why that right was included in the Bill of Rights.

None of the other amendments are nearly so wishy-washy.

[joe]

An enduring principle of Constitutional Law is the doctrine that there are no wasted words in the Bill of Rights. Every word adds meaning.

The fact that this amendment, uniquely, includes a description of its ultimate purpose - a purpose which includes the formulation of the armed public as a well regulated entity - has some meaning. The amendment as written means something different than if it simply read, "The right to keep and bear arms shall not be infringed."

[Joe Madison]

The right of the people to keep and bear arms shall not be infringed, provided that a well-regulated militia is necessary to the security of a free state.

[Jennifer]

I took the word "militia" to mean "army." In other words, "Since we'll need to maintain an army to keep the peace, we'll make sure the people are allowed to have weapons, too." We have to have an army, but that can certainly be abused so let's make sure they are not the ONLY ones allowed to have weapons.

[joe]

Jennifer,

The militia was not meant to be a counterweight to the army, but to replace it. The founders abhored standing armies, and thought that replacing it with a citizen's militia would provide all of the military force we needed.

They turned out to be wrong about that, as the militias were routed in the War of 1812, and we went back to having a real army after that.

[joe]

Lamar,

Is there any reason to conclude that the word regulate means something different in "well-regulated militia" than it does in "regulate commerce between the states?"

[Jennifer]

Joe, why do you think the founders then spoke of the right of the "people" to bear arms, rather than the right of the "militia?"

[joe]

Joe Madison, if there was a meaning you meant to convery with your paraphrase of my paraphrase, I must admit that it went over my head.

I assume you aren't arguing that since we no longer need a militia for the security of our state, we no longer enjoy the right to keep and bear arms.

[joe]

Jennifer,

Perhaps because it would be redundant to talk about the militia bearing arms? The People + Arms = the Militia. Saying the people have the right to bear arms is saying they have the right to constitute a militia.

[joe]

Well, it means other things, too - the people can individually bear arms, and thereby do things that have nothing to do with being in a militia.

It also makes it clear - well, as clear as anything related to this poorly-written legalese can be - that the militia cannot just be the chosen few deputized by the government (that would be a standing army), but has to be constitued by the People as a whole.

[Mathematica]

joe,

"What other amendment states openly that the right it protects is subject to regulation, right in the same sentence that grants the right?"

But, as you stated in your next two examples, it does not in fact regulate the right, but rather the outcome that is desired. The right to bear arms is not regulated, a well-regulated militia is necessary.

[Single Issue Voter]

How are the candidates (other than anti-freedom Richardson and McCain) on cockfighting?
I'm serious. I have decided to make this my "single issue".
I would expect anyone who supports legal cockfighting would also agree with my position
on the Second Amendment as well as other libertarian issues.

[perilisk]

Re: Federalism

While Giuliani's support for gun control in urban settings may not indicate support for national gun control, he is still likely to draw on his personal experience when dealing with these issues, and his personal experience is as the mayor of a large NE metropolis. Moreover, insofar as he will likely retain a great deal of loyalty to said metropolis, and as "freer parts of the nation" undermine the attempts of pro-gun-control states to protect their citizens (in their eyes) by ensuring that any New Yorker with a car can become a gun smuggler (if for nothing other than personal use), he will probably be sympathetic with the imposition of a national standard.

Re Militias:
I do believe that the right to protect one's life from immediate violence can only be supplemented by society, not delegated away (any more than you can sell yourself into slavery). To allow otherwise is to cut at the foundation of freedom, as revolutionary violence, while ideally never used and often good for no one, still remains the people's "mutually assured destruction" option against a repressive government.

At the same time, actively asserting one's right to life through lethal violence (i.e., blowing someone away) causes issues for one's community -- police investigations, potential legal action etc. Insofar as using violence to protect people's rights is a police function, I think that gun owners should at least be held to the level of professionalism required of police officers (from reading Balko's blog, it would seem this isn't nearly as harsh a demand as it might seem in an ideal world).

I also wouldn't be opposed to requiring them to join an emergency civilian police force (a "militia" of sorts, but geared toward individual protection, not miltiary defense). Moreover, I think it's in the interests of gun rights activists to do so -- I hear very few gun control actvists going full Brit and demanding that we disarm the police or military (which is somewhat odd given how many of them regard cops and soldiers as fascists intent on perpetrating unjust violence without fear of punishment or retailiation). When you, a non gun owner, can rely on your gun owning neighbors to protect you from violence and crime (while acting as professionally as the fuzz), you suddenly have an indirect stake in gun rights/gun control legistation. This particularly holds in communities where the "real police" are themselves either highly unprofessional, corrupt, bigoted against the communities they police, or simply unwilling or unable to get involved in crimes in progress until well after the fact.

Re "regulation":
From the Online Etymology Dictionary: "In U.S. history, applied to local posses that kept order (or disturbed it) in rural regions c.1767-71."
Same source, for regular: "1387, from O.Fr. reguler, from L.L. regularis "continuing rules for guidance," from L. regula "rule," from PIE *reg- "move in a straight line"
Same source, for militia: "Sense of "citizen army" (as distinct from professional soldiers) is first recorded 1696, perhaps from Fr. milice. In U.S. history, "the whole body of men declared by law amenable to military service, without enlistment, whether armed and drilled or not" (1777)."

I don't think we're talking about a substitute army to do the bidding of Congress and the president -- such an item would be throughly out of a place in a set of ten restrictions placed on Congress, presumably to prevent the colonies from having simply gained their own king to oppress them. In all likelihood, it was to reassure the people that they would retain the capacity for violent revolution should Congress take a turn towards tyranny. I strongly suspect that to "secure a free state" did not refer to the security of a particular state, assumed to be free, but rather securing the ability to live under a free state by retaining the ability to replace an unfree state with a free one.

That being the case, the option to diminish the capacity for violent revolution should not be on the table, as it would be as greatly in the interest of an oppressive government to exercise such an option as to have the option to suppress the speech of its critics, throw them in jail without a trial, or deny them the right to vote.

[juris imprudent]

Is there any reason to conclude that the word regulate means something different in "well-regulated militia" than it does in "regulate commerce between the states?"

Aside from the fact that "regulate" today is recognized to have four different meanings/uses? The two less common uses today are the ones that may be most appropriate to understanding those two references: the former to make accurate, and the latter to "put in good order" (or alternatively, to regulate as to standardize).

[Gilbert Martin]

"well regulated" only applies to the function of an ORGANIZED militia when it is acting in it's capacity as a militia.

The right "of the people" to keep and bear arms is not to be "well regulated".

The interpretation that gun ownership is not an individual right began with 20th century historical revisionists. There is no question that the founding fathers considered it an individual right. There are plenty of quotes from them on the subject that make that abundantly clear. Quotes such as the following from Samuel Adams at the Massachusetts Constitutional ratification convention: "The said Constitution [shall] 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."

[Sam Adams Drinker and Gun Owne]

Quotes such as the following from Samuel Adams at the Massachusetts Constitutional ratification convention

Sam Adams, brewer and patriot.

[jkp]

Who the hell is David Kopel?

[wayne]

Joe,

Since, in your interpretation of the 2nd the whole purpose of the amendment is to allow for and create a militia that is in fact an army, does that mean that the people should in fact be armed with the latest military weapons? Should we be allowed (even encouraged) to own (egads) assault weapons, and RPGs and surface to air missiles, and tactical nuclear devices?

[wayne]

One lesson to take from this when writing the next constitution is to only address one topic at a time, i.e.

2. The right of the people to keep and bear arms shall not be infringed.

2a. The congress shall ensure a well requlated militia.

[Lamar]

Mediageek: I have yet to see a recent quote from Giuliani on the issue. Of course, the GOP controlled the government for years and didn't repeal the Gun Control Act of 1968 or the National Firearms Act of 1934. Does this mean that the GOP is anti-Second Amendment?

[joe]

Gilbert,

I'm not arguing the "group right" interpretation - I actually agree that the 2nd amendment does protect an individual right. My point is that the inclusion of the "well-regulated" language makes it clear that the founders themselves believed that a degree of regulation could be introduced without infringing on that right.

wayne, "Since, in your interpretation of the 2nd the whole purpose of the amendment is to allow for and create a militia..." As I've just explained, I don't accept your premise.

[Gilbert Martin]

"My point is that the inclusion of the "well-regulated" language makes it clear that the founders themselves believed that a degree of regulation could be introduced without infringing on that right."

No it does not make any such thing clear. As I said "well regulated" only relates to the functioning of the ORGANIZED militia when it is acting in it's capacity as a militia. It does NOT apply to being able to "regulate" the right of the people to keep and bear arms. As I said before the "well regulated" phrase is in the dependent clause of the sentence and the right "of the people" is in the independent clause of the sentence. By definition and according to the rules of English grammar, nothing in an independent clause of a sentence is dependent on anything in a dependent clause of that sentence.

[dhex]

keep in mind that while nyc has some of the oldest gun laws on record (1911) up until the early 70s kids were still bringing their rifles on the subway for high school shooting classes and competitions.

it's a strange place in this regard.

[mediageek]

"Mediageek: I have yet to see a recent quote from Giuliani on the issue. Of course, the GOP controlled the government for years and didn't repeal the Gun Control Act of 1968 or the National Firearms Act of 1934. Does this mean that the GOP is anti-Second Amendment?"

Nice attempt at distraction, but the Republicans haven't been making noises about how gun control should be left up to the states.

Thus far, both Rudy Giuliani and Howard Dean have made such claims. Therefore I contend that if they truly believe this, they would support either scaling back the enforcement powers of the BATFE, and/or liberalizing other federal gun laws.

[mediageek]

"I'm not arguing the "group right" interpretation - I actually agree that the 2nd amendment does protect an individual right. My point is that the inclusion of the "well-regulated" language makes it clear that the founders themselves believed that a degree of regulation could be introduced without infringing on that right."

Joe, I think that you're somewhat confused in that you're applying a contemporary meaning to the term "well-regulated" rather than the meaning of the phrase at the time of the BOR being authored.

At the time, "well-regulated" was used to mean that something was maintained to be in good working order.

As such a "well-regulated militia" would be one that is properly equipped and trained. Were I a true 2nd Amendment zealot, I could argue that this means the government has an obligation to issue military-grade small arms to the populace at large, as well as offer training.

[Lamar]

Mediageek: I'm not trying to distract anybody. I'm just pointing out that you are holding Giuliani to a standard that his party, the GOP, doesn't even live up to.

You are correct that the GOP hasn't been making noises about leaving gun regs up to the states. They have actually federalized some areas of gun control, i.e., President Bush's "Project Safe Neighborhoods" transfers the prosecution of gun crimes from states to the federal government.

Rudy Giuliani will probably lose the GOP nomination because he tends to have practical solutions. Practicality seems to be the fatal flaw in GOP candidates.

[Lamar]

[mediageek]

"I'm not trying to distract anybody. I'm just pointing out that you are holding Giuliani to a standard that his party, the GOP, doesn't even live up to."

Here's the deal:
I hold no delusions about the Republican party being particularly pro-rights.

However, if I'm to believe that Giuliani is going to suddenly be pro-gun, he better start genuflecting right now.

If someone who has a history of anti-gun policies wants to convince me that he's had a serious change of heart, then it's going to take more than a few warmed-over statements to convince me that they're not just jockeying for votes.

[joe]

"As I said "well regulated" only relates to the functioning of the ORGANIZED militia when it is acting in it's capacity as a militia. It does NOT apply to being able to "regulate" the right of the people to keep and bear arms."

Says you.

"As I said before the "well regulated" phrase is in the dependent clause of the sentence and the right "of the people" is in the independent clause of the sentence."

That sentence is so mangled, I'm not sure the rules of English grammer even apply. It's like non-Euclidean geometry. God bless writing by committee.

[joe]

What's the matter, Lamar, cat got your tongue?

mediageek,

That was one, but not by any means the only or even the predominant, use of the term "regulated" at the time. They had regulations issued by the government as we understand them today, and referred to them as such.

[joe]

Also, mediageek, why are you so certain that the Mayor of New York was being honest when he supported gun control when holding public office in New York, but is pandering when taking a different stance in a national election?

A local or state politician arguing for local and state gun regulation is perfectly consistent with a belief that gun regulation is a local or state, rather than federal, issue.

[mediageek]

"It does NOT apply to being able to "regulate" the right of the people to keep and bear arms."

Says you."

So, how exactly does one go about regulating a right that shall not be infringed?

"That sentence is so mangled, I'm not sure the rules of English grammer even apply. It's like non-Euclidean geometry. God bless writing by committee."

Joe, Eugene Volokh disagrees. Many laws at the time had "justification clauses" in them. I will defer to his authority on the topic.

[mediageek]

"Also, mediageek, why are you so certain that the Mayor of New York was being honest when he supported gun control when holding public office in New York, but is pandering when taking a different stance in a national election?"

It's a clich?, but actions do speak louder than words.

There's also that whole thing where Rudy attempted to sue several gun manufacturers into oblivion, too.

On top of that, Giuliani made noises in an attempt to get other states to institute stiffer gun control laws. (Though not nearly to the same extent that Bloomberg has.)

[Lamar]

"Is there any reason to conclude that the word regulate means something different in 'well-regulated militia' than it does in 'regulate commerce between the states?'
"

(1) Article I and the Bill of Rights were written three years apart and are two separate documents. Is there any reason to believe that the word regulation means the same thing?

(2) Unless there is a list of definitions, I will always use the definition most appropriate to the context.