Guns

"Second Amendment Law Lessons: Look Beyond the Courts for Freedom"

Excellent advice from Prof. Glenn Harlan Reynolds (InstaPundit), in USA Today.

|The Volokh Conspiracy |

D.C. v. Heller and McDonald v. City of Chicago were important, symbolically and in the long term (because symbolism often matters in the long term). But the concealed-carry revolution, carried on over the last 30 years in state legislatures throughout the country, has been much more practically significant: From about ten states in 1986 in which pretty much any law-abiding adult could get a license to carry a concealed gun (or didn't even a license), we've moved to about forty such states (see the animation below, by Jeff Dege). And with a very few exceptions—mainly Illinois, which went shall-issue as a result of Second Amendment litigation, and perhaps Vermont, which hasn't required a license since a 1903 Vermont Supreme Court state constitutional right to bear arms case—this has stemmed from legislative victories. As Glenn says,

There are two lessons [here]…. One is that courts can't always be counted on. The other is that there are other ways to protect civil rights than filing a lawsuit. Just as Brown v. Board of Education got the desegregation ball rolling, but it took the Civil Rights Act of 1964, a decade later, to really affect institutions, I think it's fair to say that the Heller decision made a difference, but legislation is having more of an actual impact.

[UPDATE: To see an animated version of the item below, click here; I'm not sure why this version doesn't come out animated.]

Advertisement

NEXT: No, President Trump, It's Not 'Treasonous' to Be Chill During the State of Union

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Whatsoever therefore is consequent to a time of war, where every man is enemy to every man, the same consequent to the time wherein men live without other security than what their own strength and their own invention shall furnish them withal. In such condition there is no place for industry, because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.

    1. No good, Martinned. That’s Hobbes. This is Reason.

      Hobbes was an empiricist, schooled by experience. Hobbes reasoned by taking as premises the facts disclosed by history. At Reason?and throughout the libertarian movement?you find theorists, people who suppose reason is chiefly a faculty of the imagination. Reason reasoners begin with axiomatic premises, from which they posit consequent facts. Experience which contradicts their axioms they reject as false observation. Little disturbs either their premises or their conclusions. They are mostly proof against experience.

      See how many gun advocates you can find who have read Leviathan, let alone understood it. See if any among them seem even to notice that Hobbes’ thought works differently than their own?nor would you find many among them to endorse that famous insight you quoted if they did understand it. Quoting Hobbes to a Reason reasoner? Well, let’s just say it’s an effort which experience discourages.

      1. Please explain Hobbes to us simple-minded libertarians. I’m sure that none of us have read foundational works in political philosophy. Please also explain why any of us should accept Hobbes’ political philosophy in light of all of the developments in this field that have unfolded in the 350 years since Leviathan. For instance, please explain why we should accept Hobbes’ view of guns but not, say, his view of the role of the sovereign as above the law (as far as I can tell, Trump would be quite at ease having the position of a Hobbesian sovereign, which I’m sure you couldn’t possibly support). Finally, please explain how the passage you quote shows any relation to empiricism. Hobbes’ state of nature theory (which is what he’s getting at in the passage quoted) is, first, extremely rationalist, and, second, has been thoroughly skewered by writers taking a variety of positions along the empiricism-rationalism divide, such as Locke, Montesquieu, Rousseau, Hume, etc.

        1. On another note, glad to see the extreme generalizations and ad hominems have carried over to Reason from Volokh. Keep it classy, Lathrop.

          1. Here’s another.
            For you to complain of ad hominems is hysterical, considering your recent aggression (unprovoked personal attack).

            See, we libertarians have this thing called the Non-Agresssion Principle,
            And yes, verbal aggression is the same mentality

            Verbal Aggressiveness …A personality trait that predisposes persons to attack the self-concepts of other people instead of, or in addition to, their positions on topics of communication … Verbal aggressiveness is thought to be mainly a destructive form of communication

            1. DJK|1.31.18 @ 9:59PM

              Are you new to the Reason forums? If so, don’t bother engaging. Michael Hihn is a notorious no-true-Scotsman type. Best to ignore his only vaguely topical rants.

              Cyberbullying
              The act of bullying someone through electronic means (as by posting mean or threatening messages about the person online)

              Psychopath
              1. A person suffering from chronic mental disorder with abnormal or violent social behaviour.
              2. The Authoriarian Right
              3. The Authoriarian Left

              Left – Right = Zero

              (That was in defense of documented, obvious aggression)

        2. I’m not up to the task of explaining Hobbes to a libertarian. Maybe nobody is, but if you want to at least take a look at the best explanation available, get Michael Oakeshott’s collection of essays, Hobbes on Civil Association.

          I will note in passing, however, that your request for explanation misunderstands Hobbes. You absolutely should accept his view that a sovereign is above the law. Why? Because throughout the history of civilization, at least, that has been true as a matter of fact. The ability to exercise at pleasure the constitutive power to make a government defines sovereignty. Any actor constrained by law does not possess that power. The entity in whose name that law is enforced is a more likely candidate, but may also fall short. Sometimes sovereignty decays over time. When it does, governments tend toward disorganization and collapse.

          If any of that seems either confusing or outrageous to you, then I suggest you are probably conflating government with sovereignty. Get in the habit of thinking of them as separate and most of the confusion and some of the alarm will diminish. As a bonus, you will be thinking about the problem more like the founders did.

          1. Thanks for the tip. It seems to be available online here: http://oll.libertyfund.org/tit…..ssociation

          2. You typed a lot, and said a lot of nothing.

            Thanks for nothing!

      2. “Hobbes was an empiricist, schooled by experience. Hobbes reasoned by taking as premises the facts disclosed by history.”
        Umm, no. He reasoned by referencing an IMAGINED pre-history (he is describing a supposed “state of nature,” which, necessarily, precedes writing and therefore precedes “history.” Anthropology was not particularly advanced or scientific in his time, he had no empirical way of knowing whether his theories were true. Empirical advancements since have not been friendly to his theories.

        Empirically, the highest death tolls (that is, the places where lives are “nasty brutish and short”) are associated with just the sort of unchecked sovereign power he extols as necessary.

        1. The new world in Hobbes’ time featured an astounding variety of tribes, peoples, civilizations, using a similar variety of schemes for their governance. Not a few lived lives quite close to what Hobbes describes. Leaving that early time behind, for want of detailed knowledge in many places, tell me which among the Rocky Mountain Indians in North America, for instance, by the early 19th century, had developed civilizations featuring most of those problematic items on Hobbes’ list. It’s not that such things did not exist elsewhere, it is that in places which were not run under a scheme of sovereignty such as Hobbes described, he pointed out the deficiencies with reasonable accuracy.

          It’s also remarkable that in places which were governed under sovereign control, such as much of Central America, European explorers who found them were agog, and sometimes described them as outshining the cities of Europe. There is indeed a good deal in history to support Hobbes’ view of governance, showing both the strengths of the style of government he preferred, and the weaknesses of the style of government he cautioned against.

          1. “The new world in Hobbes’ time featured an astounding variety of tribes, peoples, civilizations, using a similar variety of schemes for their governance. Not a few lived lives quite close to what Hobbes describes.”

            Bullshit. Complete bullshit. As with so many of your pronouncements.

    2. “Hobbes was an empiricist, schooled by experience. Hobbes reasoned by taking as premises the facts disclosed by history.”

      The Hobbsian state of nature is not a historical fact. Hobbes pessimistic view of human nature is not a historical fact. And anyone who believes that an absolute monarch is the best way to secure the peace and prosperity, as did Hobbes, is certainly not basing that opinion on historical fact. When it comes to political philosophy, Hobbes was not an empiricist.

      Thanks for the reminder that your grasp of Hobbes is as lacking as your grasp of Wilson.

      1. The history of monarchs and absolute states, especially those that justify their rule through a monopoly on force, has been to make the lives of their people nasty, brutish, and short.

    3. Ah, memories.

      I became aware of the Hobbesian argument against individual gun rights from G Eyclesheimer Ernst on 4 Oct 1997 through his on-line publication the Firearms Policy Journal. Gilbert Ernest McGill ran the one man Potowmack Institute, and posted as GEErnst, Publius II and G Eyclesheimer Ernst. If you used his real name he went ballistic.

      He did find a lawyer to polish his arguments for an amicus curiae in the Heller case, but lamented that he could not get a lawyer to prepare an amicus out of his thoughts for MacDonald.

      One puzzling statement I read of GEErnst’s (“John Locke’s concept of entering into Civil Society out of the State of Nature”) sent me to Compton’s Encyclopedia.

      John Locke 1632-1704
      “In his Two Treaties of Government, (1690) the English philosopher John Locke suggests that the aim of government is to provide liberty and security, but that the citizens have a right to overthrow the government when it fails to provide either.”

      Thomas Hobbes 1599-1679
      “Hobbes held that the natural state of humans is constant war with one another; their lives are “nasty, brutish, and short.” . . . . From self-interest, people make peace and obtain security inasmuch as they delegate total power to the state–that is, ultimately to the monarch. Once that happens, the monarch’s decrees are absolute…. Hobbes concluded that rebellion against the state breaks society’s basic contract and is punishable by whatever penalty the monarch may exact …”

    4. “no place for industry, because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society”

      Is this supposed to describe the United States today?

      1. Think of it as a warning: a society where every man goes around armed to the teeth, thinking of everyone else as potentially his mortal enemy, “without other security than what their own strength and their own invention shall furnish them withal”, that’s not liberty. That’s just nasty, brutish, etc.

        1. Thanks for your concern, but that description bears little resemblance to the United States in which I actually live. So much for Mr. Lathrop’s empiricism.

            1. My state has had shall issue CCW for 55 odd years. What’s your sense of how much more time before the Bad Things start happening?

      2. Is this supposed to describe the United States today?

        No, but it wasn’t a bad description of parts of North America, South America, or Africa during Hobbes’ lifetime. If you read this as Hobbes attempting to describe what happens if people go armed, you miss the point. For Hobbes, it’s a description of what happens in the absence of a government with an effective sovereign. The parade of horribles are consequences of that, not its cause.

        I suggest it’s relevant now?and thank Martinned for noting it?because libertarians, because preppers, because insurrectionists, because resisters to gun controls, so often cast government, as tyranny?all ongoing in the United States today. And indeed government at least potentially relieves citizens of the public vices Hobbes describes. In so doing there is a promise?a promise repeatedly vindicated by history, by the way?that organization of people through government is a better alternative for personal security and prosperity than encouraging self reliance, armed or otherwise. Hobbes is listing what you throw overboard if you choose self-reliance instead.

        And please note, what you learn from history, you do learn empirically. It was Hobbes reliance on history which was the basis of his empiricism, and which set him apart from political theorists among his contemporaries.

        1. Hobbes made shit up. Who cares what he thinks. You like him because he fits your viewpoint, but its all bullshit. None of it is relevant.

          We don’t need government. That’s clear from ACTUAL history, not made up history.

  2. the GIF isn’t animated – I’ve seen a similar one that shows the changes through the years, and I suspect that’s what you meant to post

    1. Here’s a link to one version of it: https://goo.gl/h1UwX

      I think it probably came from here originally: https://goo.gl/IF0FWl (This page also shows all the static ‘frames’ which can be useful depending on one’s needs).

      (I had to use a URL shortener to get around the ’50 characters/word limit in the Reason comment board.)

      1. You can get around the 50 character limit by using anchor tags. You can google for HTML anchor tags, or use this template of individual characters (it’s tricky getting some of them into comments to show as the characters themselves, rather than just typing them).

        Less-than (shift-comma)
        The lower case string (with space, without quotes) “a href=”
        A double quote (“)
        The link, as https://xyz.com etc.
        A second double quote (“)
        Greater-than (shift-period/full-stop)
        The text you want to be a link
        Less-than (shift-comma)
        Forward slash (/)
        The single lower case letter “a”
        Greater-than (shift-period/full-stop)

        Now I’ll see if I can get the visual representation down (edit button FTW!)

        < a href="https://xyz.com">Your arbitrary text < /a>

        1. SPOOKY. I just did the same thing on a Reason page, for the first time in maybe a year — but more the link, blockquote, bold and italic

  3. To date, in the matter of the right to keep and bear arms, legislation has had more of an actual impact than litigation. But in other matters pertaining to Hohfeldian privileges and immunities, the march of progress eventually faltered, only to be bolstered by legal rulings, e.g. as exemplified in Griswold v. Connecticut, Roe v. Wade, Lawrence v. Texas, and Obergefell v. Hodges. As seen in the issues pertaining to sexuality, partisan advocacy of, and resistance to, claims that involve perceived conflicts of public morals or concerns of public safety, builds up into a blockage liable to resolution only through legislation from the bench. And as manifested in the aforementioned examples, such legislation tends to rest on the shoddiest of rationales, conjuring the mysteries of human life from penumbral judiciary morasses.

    1. such legislation tends to rest on the shoddiest of rationales, conjuring the mysteries of human life from penumbral judiciary morasses.

      Allow me to educate you on the Constitution. Especially the Ninth Amendment. I’ll go slow

      ALL rights are limits on government. The Founders wanted a perpetual Constitution because the Articles lasted only 18 years. There was sincere fear that enumerated rights might be considered the only rights … and the Declaration’s premise ALREADY had unenumerated rights. “… AMONG those rights are Life, Liberty, etc.
      And the Declaration is the PHILOSOPHICAL basis of a “just” government.

      They KNEW they could never assume all possible future abuses, so a perpetual constitution needed an open-ended mechanism to DEFINE those rights from unforeseen abuses. The 9th incorporates the Declaration’s unalienable rights ? which are now called “fundamental” rights in the law and rulings.

      ONLY the Judiciary can perform this function, because only the other two branches can abuse our rights. . Checks and Balances. So the Authoritarian Right , by denying Judicial Review, claims we have NO constitutional protection from ANYTHING …. because THEY want to abuse someone’s rights … originally blacks, now gays ? to “justify” their rejection of equal rights.

      You now have nowhere to go … unless you deny THREE co-EQUAL branches AND Balance of Power, AND checks and balances.

      Cont’d

      1. 2 of 2

        So If you say judges “invented” a right, poor phrasing, but THAT’S THEIR JOB. Tell me how the Founders could have assumed gay marriage. It had to appear, and then be banned, and THEN decided if it’s a protected right
        .
        That’s the ONLY way it can be done — Law then Judgment, THEN a right (supported by the Constitution)
        Disagree? Fine, Simoply explain how we can have a right to something that does not exist.

        IT’S IN THERE. The 14th Amendment FORBIDS states to deny equal treatment under the law. And it’s the 9th which empowers the courts to decide. Whoever told you gay marriage is not in the Constitution is lying about BOTH those amendments. Shamelessly

        P.S. You do know, I assume, that Justice Scalia’s Heller ruling also confirmed the Miller ruling (1939) that the Second Amendment protects only such weapons in common use at the time, and thus took to Militia duty … essentially what we now call hunting rifles.

        Scalia, a strict textualist, spent some words explain why the Militia phrase can be read that way — and “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.” In other words, such prohibitions were embedded in the culture our Founders lived in.

  4. It just doesn’t matter. This is a situation where the legislation has had no effect on the way people behave.

  5. Of course, as a resident of California, you are aware that under current circumstances neither legislative nor judicial behaviors are supportive of the recognition of gun rights.

  6. I have an issue with how Wisconsin is depicted in the graph above. While Wisconsin enacted a shall issue concealed carry license law in 2011, Wisconsin at all years covered in the animation had unrestricted (no license needed) legal OPEN carry. Yes, prior to 2011 concealed carry was strictly prohibited in Wisconsin, but open carry with no license is and has always been legal.

    1. PS: I believe Texas and Alaska also have/had legal unlicensed right to open carry for all years depicted in the animation.

      Personally, I consider it highly misleading for an animated graphic labeled as “right to carry” to depict states with unrestricted open carry as “no carry”)

      1. PS: I believe Texas and Alaska also have/had legal unlicensed right to open carry for all years depicted in the animation.

        Your belief is mistaken. It is still illegal to openly carry a handgun in Texas without a license, see Texas Penal Code 46.02, and it only became legal to carry one with a license in 2016.

    2. Michigan also had open carry prior to the passage of it’s shall issue law. But that passage was still an advance, because if you were open carrying, you were subject to false claims by hostile police that you were “brandishing”, or that you illegally concealed your gun if a jacket swung past it.

      Since the police were given the benefit of the doubt in both these cases, in reality you could only open carry in rural areas that were gun friendly, without being subject to legal peril.

  7. Wisconsin is a traditional open carry state and that has never licensed the right to openly carry a weapon. The pane of the image served above is in error.

    1. True, but for much of that time open carry would get you a disturbing the peace charge. My favorite definition of disturbing the peace came from the police chief of the City of Oshkosh who when asked what it means replied with something like “Anything we want it to.”

    2. There’s a lot of confusion about that. Including among LEOs. For example, Milwaukee’s police chief explained how he directed his officers to “take down” anybody openly carrying a gun (and that was after concealed carry was implemented and after the state Attorney General reiterated for the nth time that openly carrying is perfectly lawful in Wisconsin).

      Flynn on Guns

  8. Can you even a license, bruh?

  9. Georgia went to shall issue in 1976. This map uses the date of an unofficial opinion published by Ga’s Attorney General as the start date instead of the date the law was enacted.

  10. Concealed carry is of no use to me, I don’t carry a purse or wear a dress.

Please to post comments

Comments are closed.