More Zero Intelligence from our So-Called “Educators”


Recently proposed legislation in South Carolina would require schools to spend three weeks teaching about why the 2nd Amendment was included in the U.S. Constitution.

See:  http://bearingarms.com/lawmaker-wants-mandate-second-amendment-education-schools/?utm_source=bafbp&utm_medium=fbpage&utm_campaign=baupdate

Three weeks on the 2nd Amendment seems like a bit much, though a three week section on the entirety of the Constitution would be a good idea.  That, however, is not what prompted me to write this. Rather, it’s to comment on the underlying reason for this proposed legislation.

See this article:

http://blog.sfgate.com/sfmoms/2014/08/21/high-school-student-arrested-for-writing-story-about-shooting-dinosaur/

It describes a circumstance which can only be characterized as bizarre in the extreme. For one of his assignments, a 16-year-old high school student wrote a fictional “Facebook-type status report telling something interesting about himself” which read:

“I killed my neighbor’s pet dinosaur. I bought the gun to take care of the business.”

For this, he was taken in by cops for questioning, while they also searched his locker and backpack for guns. None were found.

Police said that the student was “difficult” during questioning, so they arrested him and charged him with disturbing the school. He was also suspended for a week.

His mother said that she “understands the gravity of the situation”, but appears to have been referring to what her son wrote. The real gravity of the situation is that the school and police authorities so flagrantly over-reacted — if I was this kid’s parent, I’d be publicizing this everywhere I could, suing both the school and the police, and doing everything possible to have the school officials fired.

This is just one more example of why zero tolerance = zero intelligence.

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Ongoing Debate re 2nd Amendment & Gun Control


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My earlier post here “Dispelling the Myth that More Guns = More Murders” …

https://freelegaladvice.wordpress.com/2013/01/14/dispelling-the-myth-that-more-guns-more-murders/

… generated considerable discussion among my West Point classmates.  One of them, John Douglas, is also an attorney with whom, on political issues, I more often than not agree.  On this subject, however, he disagrees with both my interpretation of the language of the 2nd Amendment to the U.S. Constitution … discussed in detail at …

https://freelegaladvice.wordpress.com/2012/12/29/what-now-for-the-second-amendment-gun-control/

… and my position on gun control.

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The “plain language” of the 2nd Amendment

In response to my comment that proponents of gun control demonstrate an “inability or unwillingness to read and comprehend the plain language of the 2nd Amendment”, John replied:

… the 2d Amendment has a contradictory construction, a tortured legal history and is notably devoid of “plain language.” The Amendment (in the version ratified by the States) reads, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”  According to gun rights advocates, this Amendment that speaks so highly of regulation clearly prohibits regulation of guns.  Hmmm.  Whatever it might have meant back then or should mean now, “the” meaning is hardly “plain”.

As I have said previously, I believe that the introductory clause to the 2nd Amendment is just that — an introduction which explains the reason for the right which is protected in the second clause, “the right to bear arms”.  The fact that the introduction refers to a “well-regulated militia” implies regulation of the militia (that is, the body of non-military citizens who can be organized, if necessary, for military service), not a limitation on the rights of the individuals who comprise that militia.

I replied to John:

In any event, the “tortured” historical interpretation of the 2nd Amendment came to be only because representatives of the government contorted what is, on its face, clear and unequivocal, so as to make it possible for the government to impose controls which would otherwise have been impermissible.

A detailed explanation of my “plain language” interpretation of the amendment is here:

https://freelegaladvice.wordpress.com/2013/01/04/more-on-the-2nd-amendment-and-gun-control/

John then responded:

I don’t think the tortured history of the Second Amendment is due to ‘contortions by representatives of the government’, but is rather due almost entirely to the amendment’s obtuse wording.  I’m told the former headquarters of the NRA had on the side of the building: ‘THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED.’  That is, of course, only half the amendment.  So far as the NRA and like-minded folk were (and mostly are) concerned, that’s the whole amendment.  Except it isn’t.

The next most important factors in the tortured history would be the historical evolution of gun ownership in the US and the role of gov’t here.  In our early years, the federal gov’t’s role with guns was not particularly controversial.  Early on it mandated musket ownership by all military age males AND regulated that (by requiring regular musters for inspections of the muskets & registration of the same).  Despite what some now argue about prohibitions on regulations on ownership, our Founding Fathers actually altogether prohibited some classes of people from owning guns (such as slaves and even white males who refused to swear allegiance to the country).  We have had many changing alliances and understandings regarding the roles of guns in our society (particularly those that followed the upheaval of the Civil War), which have accompanied the evolving and multifaceted interpretations of the 2d Amend.  The short of it is that neither the wording of the Second Amendment nor the varying historical understandings of it are ‘plain’ or simple.

1792 Militia Act:  It is true that in 1792, Congress passed a law essentially requiring, with some exceptions, all able-bodied white male citizens and residents between the ages of 18 and 45 to acquire and maintain a musket, related supplies and other military equipment.  This law was poorly and unevenly enforced and did not, in fact, prohibit ownership of guns by slaves;  it simply did not require them to have guns.  Restrictions on gun ownership by slaves were imposed in the slave-owning states, but not by federal law.  Of course, under the constitution, slaves were not considered citizens (or even “whole” people, counting as they did under the constitution as only “three-fifths” of a person each), so would not have been covered by the 1792 militia act in any event.

Commentary by St. George TuckerA good indication of what the 2nd Amendment “plainly” meant can be ascertained from the early legal commentaries on the subject.  The earliest known such commentary was written in 1803 by St. George Tucker, whose annotated five volume edition of Blackstone’s Commentaries on the Laws of England contained the observation that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law:

The right of the people to keep and bear arms shall not be infringed … and this without any qualification as to their condition or degree, as is the case in the British government ….”  (emphasis added)

Tucker went on to express the hope that Americans “… never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.”

Commentary by William RawleIn 1825, William Rawle, in A View of the Constitution of the United States of America, characterized the second clause of the Second Amendment as a general prohibition against government control of private gun ownership, saying:

No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

Rawle’s comment is particularly interesting in its suggestion that the 2nd Amendment could be relied upon to restrain state laws infringing on the right to bear arms.  This comment presaged the limitation on state power ultimately included in the due process clause of the 14th Amendment, which was not passed until 43 years later.  Section 1 of the 14th Amendment provides in part, “… nor shall any State deprive any person of life, liberty, or property, without due process of law”.

Commentary by Joseph Story:  In 1833, Joseph Story published his Commentaries on the Constitution. As expressed in those “commentaries”, his view the meaning of the Amendment was clear (and “plain”):

The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.  (emphasis added)

In short, one of the primary purposes of the 2nd Amendment was to enable the people to protect themselves, if necessary, against the government.  That objective can hardly be accomplished if the government has the power to constitutionally infringe on the right of those same people to bear the arms needed for that very protection.

It was not, in fact, until after the American Civil War and on into the 19th century that legal scholars and commentary began to call into question whether the 2nd Amendment provided an individual right to bear arms or merely a “collective” right of the people to maintain an armed militia.

And that question, of course, was finally answered by the U.S. Supreme Court in its 2008 decision in  District of Columbia v. Heller, 554 U.S. 570 (2008), the full text of which can be seen here:

http://www.law.cornell.edu/supct/search/display.html?terms=heller&url=/supct/html/07-290.ZS.html

In this decision, the Supreme Court held that the 2nd Amendment does protect an individual right to possess firearms unconnected with service in a militia;  that such weapons may be used for “traditionally lawful purposes”, such as self-defense;  that the first clause of the 2nd Amendment “announces a purpose”, but does not limit the second and operative clause of the amendment;  and that the text and history of the phrase “the right of the people to keep and bear arms shall not be infringed” indicates “an individual right to keep and bear arms”.

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The effects of gun control

John Douglas also took exception to my discussion of the statistical evidence regarding the effects of gun control, saying:

I am also immediately turned off when a gun rights advocate attacks statistics on the effects of gun control with the ‘there is no evidence’ chain of reasoning.  One of the reasons we have limited evidence on the effects of gun possession in the US is the NRA’s successful stifling of research in the area – and, indeed, in the very collection of data upon which research might be done.  At the peak of gun violence in the early 90s, research results were released showing the higher death rates in homes with guns.   (emphasis added)

John then cited two studies funded by the Centers for Disease Control in support of that conclusion, studies the results of which are available at:

http://www.nejm.org/doi/full/10.1056/NEJM199310073291506#t=article

and

http://www.nejm.org/doi/full/10.1056/NEJM199208133270705

The first of these studies addressed homicides in three American counties (Shelby County, TN;  King County, WA;  and Cuyahoga County, OH) during the years 1987 through 1992.  This study notes that more than 24,000 homicides were being committed across the country every year, indicating that approximately 120,000 homicides were committed during the five years addressed by the study.  However, the study actually considered just 420 homicides, or roughly 1/3 of 1% of the total U.S. homicides committed during those years.

Regarding the 420 homicides that were considered, the study noted:

Two hundred nine victims (49.8 percent) died from gunshot wounds. A knife or some other sharp instrument was used to kill 111 victims (26.4 percent). The remaining victims were either bludgeoned (11.7 percent), strangled (6.4 percent), or killed by other means (5.7 percent).

The study ultimately concluded that there was an increased risk of homicide in the home if guns were present (though it is readily apparent that even without guns, if people wanted to kill other people in their homes, there were a variety of other effective means available for that purpose).  However, the study also concluded that there were other factors which were “strongly and independently associated with an increased risk of homicide in the home”, including rental rather than ownership, living alone, previous violence in the home, previous arrest of any resident of the home and drug use in the home.

In fact, four of these five other factors were found to have created a greater increased risk of homicide in the home than did the presence of guns. Use of drugs created an increased risk of homicide that was more than double that of the presence of guns in the home;  previous violence and living in a rental home each created a risk of homicide in the home 63% greater than the presence of guns;  and living alone created a risk of homicide in the home 37% greater than the presence of guns.  The only characteristic that created a lesser increased risk of homicide in the home than the presence of guns was the prior arrest of a resident in the home.

The sample in this study was so small as to be virtually meaningless in the big picture of gun violence and control.  Nevertheless, if taken at face value, it indicates that it is more important, in terms of reducing homicide in the home, to control drug use and violence in the home than it is to control the presence of guns.  In fact, if governmental policy is to be based on this type of statistical analysis, it would also appear to be more important to prohibit people from living alone or renting homes than it is to control the presence of guns.

In other words, this study isn’t very helpful in determining whether or not increased gun controls are useful in preventing homicides in the home or generally.

The second of the two studies John cited addressed 554 in-home suicides in two counties (Shelby County, TN, and King County, WA) over a 32 month period from 1987 to 1990.  Of these suicides, approximately 58% were committed using firearms.

While this study found an increased risk of suicide based on a gun being kept in the home, four other factors were found to have an even higher correlation to increased risk of suicide than the presence of a gun.  Use of prescribed psychotropic medication created an increased suicide risk 7.5 times that created by the presence of a gun; previous hospitalization for alcohol use more than three times;  use of drugs more than double;  and living alone slightly higher than the presence of a gun in the home.  Even failing to graduate from high school had a correlation to an increased risk of suicide that was almost equal to that created by the presence of a gun in the home.

In short, this study is even less useful than the other in determining whether or not greater government control of guns would be appropriate or effective at achieving the desired goals of gun control.

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A straw man argument?

John also took exception to my discussion on another ground:

Finally, and perhaps most egregiously, you set up a straw man argument and, not surprisingly, defeat it, when you claim that gun control advocates are asserting that an increase in the number of guns – irrespective of all other variables – leads to an increase in crimes, especially murder.

To which I say, anyone who contends that reducing the number of guns in the possession of law-abiding citizens will reduce violent crime and murder is also necessarily claiming that an increase in the number of guns will have the opposite effect.  If you don’t contend that reducing the number of guns in the possession of law-abiding citizens will reduce violent crime and murder, then what is the purpose of imposing new laws and regulations designed to accomplish that goal?

John added:

I’m sure there are a few ill-informed fringe gun control advocates who think that way, but no reasonable proponents do.  We all have to recognize that violence levels have many causes. 

And to that I say, exactly.  And that is in fact the primary point of my opposition to the reflexive response of so many that simply imposing stricter gun controls will substantially reduce or even eliminate violent crime.  Interestingly, the two studies cited by John above actually support the conclusion that there are other factors which are much more important, at least with respect to deaths in the home, whether homicides or suicides, than the mere presence in the home of firearms.

John also disagreed with the statistical analysis I presented in “Dispelling the Myth …”, suggesting that the best comparison regarding prevalence of guns and murder rates is not between the U.S. and countries such as Mexico and Honduras, but “comparable” countries like Canada (even though Canadians have no rights comparable to those granted to Americans by the 2nd Amendment).  He notes that Canada is 31st in “homicide rate” (below the U.S., which is 14th), while the U.S. has a homicide per 1000 guns rate that is  7 times that of Canada.

And yet, the overall homicide rate in the U.S. (4.8 per 100,000 people in 2010) is just 3 times that of Canada;  meaning, of course, that Canadians are easily finding other ways, in the absence of ready access to guns, to kill each other.  Just as Americans would if they did not have access to guns.

There are other considerations which must be accounted for in any comparison between the American and Canadian gun-related and overall homicide rates.  For example, while it is true that the homicide rate is higher in the U.S., the overall difference in the rate of violent crimes, including homicides, has decreased, as the rate of violent crimes dropped faster in the U.S., during the 1990’s and 2000’s, than it did in Canada.

Other factors have a significant impact on the relative homicide rates for reasons that are largely unrelated to access to or possession of guns.  The U.S. has more cities with large, concentrated populations, and cities almost invariably have higher murder rates than rural areas, even in countries with strict gun controls and relatively rare private gun ownership.  The U.S. also has substantially more and a higher rate of both gang activity and drug related crime than does Canada; each of these criminal activities contribute disproportionately to the rate of gun-related homicides.

Elimination of the “insane war on drugs” and adoption of social policies designed to reduce gang activity would each do more to reduce the “gun-related” homicide rate in the U.S. than any of the proposed “gun control” measures.

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Conclusion

John wrapped up his comments by saying:

As for the effects of gun control, I harbor no illusions that implementing even draconian restrictions would quickly alter our level of gun violence, since we are awash in guns and it would take decades to ‘drain the swamp’.  The modest restrictions on gun ownership that have been implemented here and there in the past, and that are likely in the future here, are mostly band-aids on a large open wound and will have at most a modest effect on gun violence.  To me, that’s sad, but that is the political reality. 

However, despite my pessimism on what can be done in the US, I stand by what I regard as the clear balance of evidence in regard to the relationship between the level of violence and the prevalence of guns.  When you compare countries with comparable levels of development and comparable social structures, the ones with much lower levels of gun ownership have much lower levels of gun violence.

And I stand by my own analysis in this regard, though I have to agree with the ultimate extrapolation of John’s concluding comment.  That is, there can be no doubt that if there were no guns in the U.S., there would be no gun violence in the U.S.  That, however, is not really the point, as we are never going to have a society in which there are no firearms, nor would or should we want to have such a society.

Furthermore, neither I nor John have addressed the issue of gun control from the perspective of those who have actually used guns in defense of themselves, their homes and their loved ones.

Or why and under what possible future circumstances the availability of firearms for such protection be desirable, if not essential, to the survival of not only individuals, but our society as a whole.

I will address both of these subjects in future discussions here.

“Lies the Government Told You”


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I just finished listening to the audio book, “Lies the Government Told You” by former New Jersey Superior Court Judge Andrew P. Napolitano and highly recommend it.  In fact, this is a book that every American should read (or listen to the audio version of).  In it, Judge Napolitano discusses the many ways in which the US federal government has deceived and continues to deceive the American People as it arrogates unto itself more and more power, diminishing in the process both individual liberties and the power of the states.

Judge Napolitano concludes his compelling discourse with a bold and detailed statement of what We The People must do to rectify this situation and reverse the federal government’s ongoing and increasing power grab.  To whet your appetite, I am going to quote the concluding paragraphs of the book in full:

We will need a major political transformation in this country to rid ourselves of persons in government who kill, lie, cheat, and steal in our names. We will need to recognize some painful truths.

First, we must acknowledge that through the actions of the government we have lost much of the freedom that we once all thought was guaranteed by the Constitution, our laws, and our values. The lost freedoms have been cataloged in this book and need not be restated here. In sum, they are the loss of the primacy of the individual’s inalienable rights and the concept that government is limited in its powers. We have lost the diffusion of power between the states and the federal government. We have lost a federal government that stays within the confines of the Constitution.

Second, we must recognize that we do not have a two-party system in this country; we have one party, the Big Government Party. There is a Republican version that assaults our civil liberties and loves deficits and war, and a Democratic version that assaults our commercial liberties and loves wealth transfers and taxes.

Third, we must acknowledge that there is a fire in the bellies of millions of young people who reject both wretched visions of the Big Government Party. These millions of young folks need either to form a Liberty Party or to build on the libertarian base in the Republican Party by banishing Big Government conservatives, neocons, and so-called social conservatives who want to use government to tell others how to live their lives back to the Democratic Party from whence they came.

Then we need a political fever that consumes the careers of all in government who voted for the Patriot Act, the illegal wars in Iraq and Afghanistan, the TARP and stimulus programs, the federal takeover of education, spying on Americans without warrants, and all other unconstitutional monstrosities that have tethered lovers of liberty to Washington, D.C.

We should abolish the federal income tax, prohibit eminent domain, impose term congressional limits, make Congress part-time, return the power to elect senators to State legislatures, abolish the Federal Reserve system, and prosecute for malfeasance any member of Congress who cannot articulate where the Constitution authorizes whatever he or she is voting for or who has voted for any law that he has or she has not certified under oath that he or she read and fully understands. And we must reject the nice smiles and easy ways and seductive promises of anyone in government who lies to us.

The Big Government Party crowd is obviously not afraid of lying or being caught in a lie. Its members do not fear their own lawlessness or our loss of freedom. They only fear the loss of their own power. So let’s use that fear against them. Jefferson understood and articulated this best when he wrote: “When the people fear the government, there is tyranny. When the government fears the people, there is liberty.”

If we fear our own government, if we accept its deceptions, its lies to us, if we take no action to redress them, our freedoms are doomed.

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For Judge Napolitano’s personal website, see here:

http://www.judgenap.com/

For Judge Napolitano’s biography, see here:

http://www.judgenap.com/bio/

The “Lies the Government Told You” page of the judge’s website is here:

http://www.judgenap.com/books/lies-the-government-told-you/

The Advocates for Self-Government on Guns & Gun Control


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For excellent articles presenting the Libertarian perspective on guns & gun control, see the current issue of The Liberator Online, published by The Advocates for Self-Government, here:

http://us2.campaign-archive1.com/?u=8f8d44f1fc10bd074f648a4de&id=f71e617efd&e=16f5dddde4

“Assault Weapons” Ban(d-aid)

Aside


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Following up on my previous post on this subject, which is at …

https://freelegaladvice.wordpress.com/2012/12/29/what-now-for-the-second-amendment-gun-control/

John R. Lott, Jr., in a January 17th Wall Street Journal article, provided an excellent review of the ineffectiveness of the so-called “assault weapons” ban of 1994:

http://online.wsj.com/article/SB10001424127887323468604578245803845796068.html

The long and the short of it is, that “ban” was worthless in accomplishing its supposed purpose.  Lott cites a 2004 study which concluded, “”we cannot clearly credit the ban with any of the nation’s recent drop in gun violence. And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence.”

Commenting on current proposals by President Obama and Senator Diane Feinstein to once again ban “assault weapons”, Lott echoes a point I made in my earlier blog post linked above, stating, “… they continue to mislabel the weapons they seek to ban.”

As I said in that earlier post, there really is no such thing as an “assault weapon” and those weapons likely to be “banned” by any new legislation are not truly “military-style” weapons at all.  As Lott says, no self-respecting military would ever go into combat using the semi-automatic weapons available for sale to civilians.

“Assault weapons” were defined in the 1994 legislation based on appearance, rather than function.  Any weapon that does not require reloading after each shot is a “semi-automatic” weapon — which really means nothing more or less than that one pull of the trigger fires one bullet.  Which pretty much means every modern firearm, pistol, rifle or shotgun.

Unfortunately, neither the executive orders already signed by Obama nor whatever new “assault weapons” ban is ultimately enacted are likely to accomplish the desired goal of reducing or eliminating incidents of mass murder or even reduction of the murder rate in the US.

The reason, of course, is that neither the number of guns nor their accessibility to law-abiding citizens is the underlying cause of murderous incidents (the two most common motivators being mental illness and simple revenge).  Stricter gun control addresses neither of those motivators, nor any of the other social factors which often play into handgun murders (such as gang violence, drug turf wars, armed robberies and other possession/use of firearms by criminals).

Dealing with gun related murders by enacting an “assault weapons” ban or otherwise imposing stricter gun control laws is analogous to treating a gunshot wound by taping a band-aid across the entry point and ignoring the internal damage caused by the bullet.

Trashing the 1st & 2nd Amendments in Tennessee


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James Yeager is the owner of Tactical Response, a weapons training center in Camden, Tennessee.  His business trains people in weapons use and tactical skills — a sign on door of the business warns that the staff is trained to kill.

In response to reports that the Obama administration might take executive action to impose additional restrictions on individual rights under the 2nd Amendment, Yeager posted a You Tube video in which he said, among other things, “I’m telling you, if that happens, it’s going to spark a civil war, and I’ll be glad to fire the first shot,”

In response to Yeager’s comments — and in blatant violation of both the 1st and 2nd Amendments — the Tennessee Department of Safety & Homeland Security suspended Yeager’s carry permit.  TDS&HS Commissioner Bill Gibbons said in a news release announcing the suspension, “The number one priority for our department is to ensure the public’s safety. Mr. Yeager’s comments were irresponsible, dangerous, and deserved our immediate attention. Due to our concern, as well as that of law enforcement, his handgun permit was suspended immediately. We have notified Mr. Yeager about the suspension today via e-mail. He will receive an official notification of his suspension through the mail.”

Perhaps the “number one priority” of the TDS&HS ought to be upholding the 1st and 2nd Amendments of the US Constitution.  And perhaps Commissioner Gibbons ought to be more concerned about upholding the oath of office he took upon assuming control of his department, in which he swore to “support the constitutions of Tennessee and the United States”.

This suspension is clearly and unequivocally a violation of Yeager’s 1st Amendment right to free speech.  As decided by the United States Supreme Court in the 1965 Brandenburg v. Ohio case, the government cannot punish an individual who engages in “inflammatory speech” unless it is directed to inciting, and is likely to incite, “imminent lawless action“.

Yeager’s comments were unquestionably “inflammatory”.  Nevertheless, they are constitutionally protected against punishment by the State of Tennessee by the 1st Amendment, as applied to the states through the 14th Amendment.

In Brandenburg, a per curiam (unanimous) decision, the court said, “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”  (emphasis added)

Because comments were conditioned on uncertain future events (“if that happens”), they cannot be taken as “inciting or producing imminent lawless action” and cannot be “likely to incite or produce such action”.  As the Brandenburg court also noted, “The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.”  (emphasis added)

In unlawfully punishing Yeager for the exercise of his 1st Amendment rights, the state of Tennessee has also “infringed” on Yeager’s 2nd Amendment right “to keep and bear arms” — a constitutional “two fer”, if you will.

Yeager has since revised his You Tube video to remove some of the more inflammatory comments.  He is now referring all questions about the situation to his attorney and intends to pursue a legal review of his license suspension.

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The Huffington Post article about Yeager’s diatribe is here:

http://www.huffingtonpost.com/2013/01/10/james-yeager-start-killing-people-obama-gun-policy_n_2448751.html

The MSNBC post regarding the suspension of Yeager’s handgun carry permit is here:

http://www.msnbc.msn.com/id/50429293

The Tennessee Department of Safety and Homeland Security website is here:

http://www.tn.gov/safety/

The Wikipedia article on Brandenburg v. Ohio (which discusses the Supreme Court 1st Amendment decisions on this issue which preceded Brandenburg) is here:

http://en.wikipedia.org/wiki/Brandenburg_v._Ohio

The Brandenburg decision is available on Justia.com here:

https://supreme.justia.com/cases/federal/us/395/444/case.html

More on the 2nd Amendment & Gun Control


 

My December 29th post “What Now for the 2nd Amendment and Gun Control?” …

https://freelegaladvice.wordpress.com/2012/12/29/what-now-for-the-second-amendment-gun-control/

… motivated a lengthy and somewhat contentious email conversation among my West Point classmates.  There are several aspects of that conversation which I will address in my blog over the next few days, starting with some perceptive and pertinent comments and questions by Terry Atkinson.

First, Terry commented:  The logic behind the belief that the 2d amendment’s protection of an individual’s right to own arms is limitless eludes me. If one truly believes that, as Jim states fairly unequivocally in his blog discussion, then it must follow that ‘arms’ such as M109 howitzers  enjoy the same protection as handguns or semiautomatic weapons. It seems to me, however, that the logic would also cover such weapons as nuclear weapons and, let’s say, B-1 bomber delivery systems. If, indeed, you all belief that, it seems to me that your logic fails the common sense test.  I can’t imagine any country that allows its citizens unfettered access to say nukes, thousand pound bombs, napalm canisters, sarin gas canisters, cobra gunships with flechette rockets, or any number of mass-killing weapons would last.

Actually, my “strict construction” view of the 2nd Amendment does not envision a “limitless” right to own weapons.  In fact, a strict construction reading of the amendment’s language makes clear that it does not apply to modern warfare weapons such as howitzers, nukes and bombers.

A thorough analysis of the 2nd Amendment requires a thorough review and understanding of the amendment’s language and what that language meant at the time it was ratified.  To be a “strict constructionist”, one must strictly construe the entirety of the particular constitutional provision being discussed.  Therefore, to respond to Terry’s first point, it is primarily necessary to understand what the term “to keep and bear arms” meant when the 2nd Amendment was ratified in 1791.

First and most important, what did the word “arms” mean at that time?  Historical commentary and arguments both for and against the adoption of this amendment make it clear that by “arms”, the author of the Bill of Rights (James Madison), and those who voted to ratify it, meant weapons that were neither designed for military use nor typically put to such use.  By “arms”, the amendment was intended to refer to personal weapons, such as pistols, rifles and shotguns.  It clearly was not intended to refer to military-style, 18th century artillery pieces and, by analogy, cannot now be thought to refer to the 21st century successors to such military weapons.

The phrase “to keep and bear” arms confirms this interpretation.  To “keep … arms”, of course, means nothing more than to be able to have them in one’s possession.  At the writing of the 2nd Amendment, “to bear” meant “to carry”.  Although that term is now somewhat archaic, it clearly refers to weapons which an individual could carry with him on his person.

Thus, the phrase “to keep and bear arms” meant (and means) that the government cannot infringe “the right of the people to have and carry personal weapons such as pistols, rifles and shotguns”.

This would currently exclude from constitutional protection such weapons as fighter aircraft, naval ships and weapons, artillery pieces, napalm, nukes & other bombs, as well as even such lesser weapons as 50 caliber machine guns, shoulder mounted rocket launchers, flamethrowers, hand grenades and most other military-style weapons.

The US Supreme Court holding in District of Columbia v. Heller, 554 U.S. 570 (2008), reached the same conclusions.  The court in Heller said that the previous Supreme Court decision United States v. Miller, 307 U.S. 174 (1939), did not “limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes”.  The court went on to find support for this conclusion in what it called the “historical tradition” of prohibiting the carrying of  “dangerous and unusual” weapons.

Terry’s second comment:  If you don’t believe that nukes and these other weapons enjoy the protection of the 2d amendment, then it seems to me you are recognizing a limitation to the amendment — a limitation that does not appear to be written into the ‘strict constructionist’s’ reading of the amendment. Logic then suggests that there ARE limits to the constitutional right based on ‘reasonableness’ or current conditions or changing societal mores or something. If true, it seems to me the issue is no longer whether the 2d amendment prevents the government from restricting arms ownership but rather a question of where the line of reasonableness is drawn. This, IMO, is an entirely different argument and one that I can understand.

As should be clear from my preceding comments, I do not believe that nukes and other military weapons are protected by the 2nd Amendment.  I disagree, however, with Terry’s conclusion that this implies a “limitation” on the 2nd Amendment’s protections.  Rather, my “strict construction” interpretation of that amendment is that such weapons were not then and were never intended to be covered by the 2nd Amendment.  A true “strict construction” of the amendment still leads to the conclusion that the government cannot infringe on “the right of the people to keep and bear arms”, within the original meaning of that language.  This reading has nothing to do with “reasonableness”, current conditions or changing societal mores.

Nevertheless, the end result is, with respect to military style weaponry, the same and it appears that Terry & I agree that the government can constitutionally restrict individual access to, or possession and use of, such weapons.

Terry’s third point was in the form of a question, and a very good one, at that:  Where in the 2nd amendment or constitution for that matter does it state that the rights stated therein do not cover persons who have committed crimes or are diagnosed with mental illnesses? My “strict interpretation” of the Constitution tells me that anyone can own a weapon whether they have a criminal past or not. Isn’t that right?

Answering this question requires further analysis — initially, what governmental action would “infringe” on the individual’s right to bear arms?  Or, in simpler terms, what did (does) the word “infringe” mean?

The oldest definition I can find is from Webster’s Dictionary of 1828, which likely reflects fairly closely what the word meant in 1791:

1.     To break, as contracts; to violate, either positively by contravention, or negatively by non-fulfillment or neglect of performance. A prince or a private person infringes an agreement or covenant by neglecting to perform its conditions, as well as by doing what is stipulated not to be done.
2.     To break; to violate; to transgress; to neglect to fulfill or obey; as, to infringe a law.

With this meaning of “infringe”, a “strict construction” interpretation of the 2nd Amendment would be that the government cannot “break or violate” (or perhaps “deny”, as in “neglect to fulfill”) “the right of the people to have and carry personal weapons such as pistols, rifles and shotguns”.

What the 2nd Amendment itself does not address, however, and what must then be considered both in terms of the contemporaneous understanding of what the amendment meant and what it must be understood to mean now is whether or not, and if so, how a particular person can lose his constitutional rights, including his “right to keep and bear arms”.

Although neither the Bill of Rights nor the Constitution proper address that possibility, there are constitutional provisions which provide guidance in this regard.  Article I, section 8,  and Article III, section 3, empower Congress to define certain federal crimes and to establish the punishment to be imposed for violations thereof.  Article III, section 2, and Article IV, section 2, acknowledge that the states have the authority to define crimes and punishments.  Furthermore, it is clear that all of the Founding Fathers of this country, and probably the vast majority of the populace, recognized that the government could revoke even the “inalienable rights” of the people by fining, imprisoning or, in extreme cases, executing those who violated the laws of the country or the states.

Clearly, the right to “life, liberty and the pursuit of happiness” could be forfeited by those who committed crimes.  There is neither any logical reason nor any historical interpretation by which it could be concluded that the 2nd Amendment “right to keep and bear arms” was somehow exempted from forfeiture as a result of a sufficiently serious criminal conviction.  Nor is there any logical reason to conclude that this right cannot now be forfeited for the same reason.

Thus, as a general proposition, a person who has committed a sufficiently serious (felony) crime no longer has a right to keep and bear arms to be infringed.  And governmental restriction of that person’s access to firearms or other weapons would not violate the 2nd Amendment.

I do have personal reservations about the constitutionality of the extensions of this concept being enacted by some states, including denial of access to firearms based on misdemeanor criminal convictions, such as domestic violence.  That, however, is really a subject for a separate discussion at another time.

With respect to the remainder of Terry’s question in this regard, the issue of denying 2nd Amendment rights to people suffering from mental illnesses is constitutionally troublesome.  There is nothing in the Constitution by which it can be inferred that either the federal or state governments have lawful authority to revoke the rights of a person due to mental illness.

Nevertheless, it was common practice in the 1700s and early 1800s for local government to confine the mentally ill to either jails or poorhouses.  Since the Constitution does not otherwise address the issue, it must be understood in the context of the times.  The implication of this historical perspective, of course, is that the mentally ill could, on that basis alone, lose some or all of their “rights”.  Presumably, Madison and those who ratified the Constitution and the Bill of Rights, were aware of this common practice and had it in mind when formulating and ratifying those documents.

Therefore, a strict construction of the 2nd Amendment would also require that it be understood in that context.  Which means that the mentally ill, like convicted felons, can be thought of as not having any 2nd Amendment right to be infringed by governmental action.

There are, of course, other issues with respect to the 2nd Amendment, such as whether or not licensing requirements and concealed carry restrictions are constitutional or whether it is constitutionally permissible to restrict the carrying of weapons into certain places (such as public buildings).  And there is the question of whether gun control is a meaningful and effective way of dealing with the problem to begin with.  I will address some of these issues in future blog posts.

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The full 157 page opinion of the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), is available here:

http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

The Supreme Court decision in United States v. Miller, 307 U.S. 174 (1939), is available here:

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html

Congressman Ron Paul is a Voice of Reason …


 

… in a political landscape otherwise devoid of common sense and constitutional acumen.  It is too bad, indeed, that Paul (Rep TX) is retiring.

On his website the week after the Sandy Hook murders, Paul addressed the issues of gun control and personal “security” in a post entitled “Government Security is Just Another Kind of Violence”.

He concluded his comments as follows (bold emphasis added:

“…do we really want to live in a world of police checkpoints, surveillance cameras, metal detectors, X-ray scanners, and warrantless physical searches?  We see this culture in our airports: witness the shabby spectacle of once proud, happy Americans shuffling through long lines while uniformed TSA agents bark orders.  This is the world of government provided “security,” a world far too many Americans now seem to accept or even endorse.  School shootings, no matter how horrific, do not justify creating an Orwellian surveillance state in America.

“Do we really believe government can provide total security?  Do we want to involuntarily commit every disaffected, disturbed, or alienated person who fantasizes about violence?  Or can we accept that liberty is more important than the illusion of state-provided security? Government cannot create a world without risks, nor would we really wish to live in such a fictional place.  Only a totalitarian society would even claim absolute safety as a worthy ideal, because it would require total state control over its citizens’ lives.  We shouldn’t settle for substituting one type of violence for another. Government role is to protect liberty, not to pursue unobtainable safety.

“Our freedoms as Americans preceded gun control laws, the TSA, or the Department of Homeland Security.  Freedom is defined by the ability of citizens to live without government interference, not by safety. It is easy to clamor for government security when terrible things happen; but liberty is given true meaning when we support it without exception, and we will be safer for it.

Paul is likely the most Libertarian nationally prominent member of either major political party.  I would have enthusiastically supported him for President this year … and will do so in 2016 if he chooses to run.

For the full text of Congressman Paul’s article “Government Security is Just Another Kind of Violence“, see:

http://paul.house.gov/index.php?option=com_content&view=article&id=2037:government-security-is-just-another-kind-of-violence&catid=64:2012-texas-straight-talk&Itemid=69

What now for the Second Amendment & Gun Control?


 

In the aftermath of the Sandy Hook Elementary School murders in Newtown, CT, there has once again been an outcry for increased restrictions on individual access to firearms in the United States.

As I have said before …

https://freelegaladvice.wordpress.com/2008/06/26/supremes-uphold-individual-handgun-ownership-right/

… when it comes to the Second Amendment (as well as the rest of the Constitution), I am a strict constructionist.  The Second Amendment says that the “… the right of the People to keep and bear Arms, shall not be infringed.”  See Notes 1 & 2 below.

To me, in the absence of an amendment to the Constitution modifying its terms, the Second Amendment means that the government (federal directly and state/local through the Due Process Clause of the 14th Amendment) has no authority to “infringe” (per Merriam-Webster online Dictionary:  “to encroach upon in a way that violates law or the rights of another”) on the right of individuals to keep and bear arms.  Period.  Not handguns.  Not rifles.  Not shotguns.

Not even “assault weapons”, regarding which, by the way, there really is no such thing.  When the federal government passed the so-called “Assault Weapons Ban” in 1994, Congress had to make up a definition of what constituted an “assault weapon” within the meaning of the law.  See Note 3 below.

And, as just one example of how virtually meaningless that definition was, the law defined any semiautomatic rifle with a pistol grip and a bayonet mount as an “assault weapon”, but excluded from the definition a semiautomatic rifle with just a pistol grip.  Go figure.

Now, you might be tempted to say (and I would agree) that any fully automatic weapon should be considered an “assault weapon”.  But, you should also be aware that fully automatic weapons have been heavily regulated, controlled and restricted since 1934 (think Prohibition era gangsters).  Never mind that there is nothing in the Second Amendment which can be interpreted to mean that the federal government has lawful authority to infringe on the right of individuals to “keep and bear” even fully automatic “arms”.  The average law-abiding citizen simply cannot legally obtain, much less “keep and bear”, fully automatic weapons.

What then, you ask, of semi-automatic weapons (like the Bushmaster .223 rifle used by the Newtown nutball) — aren’t they “assault weapons”?  Some people would say so.  However, a “semi-automatic” weapon is one which fires only one round each time the trigger is pulled, but reloads the next round automatically.  Well, guess how revolvers work — when you pull the trigger, the cylinder rotates and reloads the next round automatically, then fires;  when you pull the trigger again, the cylinder rotates and reloads the next round automatically — “semi-automatic”, by definition.

In fact, virtually every modern handgun is “semi-automatic”.  Are they all “assault weapons”?  I submit not.

So, any “assault weapons” ban that might be enacted going forward will have the same problem that the 1994 ban (which was largely ineffective in accomplishing its presumed objective and therefore allowed to expire in 2004) had — how to define the weapons being “banned”.  See Note 4 below.

And what about high capacity magazines?  Doesn’t the fact that a semi-automatic weapon can be loaded with a 30 shot magazine make it an “assault weapon” worthy of being banished?  Not really.

An accomplished gunman utilizing a weapon like the Bushmaster can aim and effectively fire 30 rounds in perhaps 15 seconds.  So, let’s say 30 shot magazines are banned and the maximum allowed is just 10 rounds.  Okay.  This same accomplished gunman can eject an empty magazine and load a new one in 5 seconds, less if he’s really good at it.  So, to fire the same 30 rounds will take 3 magazines, having to reload twice in the process.  Thus, the total time to fire 30 rounds will be 15 seconds to aim and fire plus 10 seconds to reload the two magazines.  Total 25 seconds.  Would this have any meaningful effect on the likely outcome of a shooting incident like Sandy Hook?  Not very likely.

So, what should be done to increase gun control in the US?

I submit, contrary to the hue and cry currently being raised by some, nothing.

The belief that increased restrictions on private ownership of guns will reduce gun violence in the United States is, essentially, wishful thinking.  Connecticut has some of the most restrictive gun control state laws in the country.  The guns used by the Sandy Hook lunatic were legally obtained and owned by his mother.

I have read many claims that we need gun control laws like those in effect in most European countries, where the homicide rates are (generally) lower than that in the US.  However, the single worst civilian mass shooting in history occurred in a country with some of the most restrictive gun ownership laws and regulations in the world.  On July 22, 2011, another demented individual attacked a summer camp on a Norwegian island, killed 69 people and wounded 110 (55 of them seriously).  See Note 5 below.

Norway’s homicide rate prior to that event was .6 per 100,00 population (compared to the US rate of 4.2).  And yet … and yet …  See Note 6 below.

A far better way to reduce the homicide rate in the US would be to end the “insane war on drugs”.

Apparently, we as a society learned absolutely NOTHING from the lessons of the failed policies of Prohibition.  According to the US Department of Justice, Bureau of Justice Statistics, nearly 20% of all violent crimes are committed by drug addicts to obtain money for drugs.  Legalize and regulate all drugs and you eliminate most of these violent crimes (and perhaps as many as 50% of all property crimes, as well).  See note 7 below.

Each year in the US, roughly 30,000 people die in firearms-related incidents.  More than half of these are suicides and perhaps 5% accidents.  Of the roughly 40% that are homicides (12,000 or so each year), more than 1000 are committed in “drug wars” (usually between rival drug sellers in “turf wars” over drug sales territories).  Eliminate the “insane war on drugs” and you eliminate drug wars and their associated homicides.  See Notes 8 & 9 below.

And, while I agree with the NRA that posting an armed guard in every school would discourage individuals from choosing schools as targets for their murderous rampages (when was the last time we had a mass murder in a government building, courtroom or airport with armed guards and security checkpoints?), I do not favor this approach for both economic (excessive costs) and personal liberty reasons.  See note 10 below.

We should not be teaching our children to live in fear.  And, as horrific as were the events in Sandy Hook, the occasional occurrence of such events is one of the prices we pay … and must pay … to live in a truly free society.

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Note 1:  The full text of the Second Amendment is:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  The introductory clause, in my view, is not a restriction or limitation on the right protected by the amendment, but rather is the explanation for that right.

Note 2:  Anyone who thinks that modern circumstances have obviated the necessity of individual gun ownership to protect a “free state”, need only read One Second After by William Forstchen, described here:

http://www.onesecondafter.com/

And, if you think his book is science fiction and farfetched, see the Wikpedia article on EMP:

http://en.wikipedia.org/wiki/Electromagnetic_pulse

And this Heritage Foundation article about Congressional hearings on the subject:

http://blog.heritage.org/2012/09/11/congressional-hearing-raise-emp-awareness-now/

Note 3:  For a good discussion of “assault weapons” and the 1994 ban, see:

http://www.washingtonpost.com/blogs/wonkblog/wp/2012/12/17/everything-you-need-to-know-about-banning-assault-weapons-in-one-post/

Note in particular this comment:  “Did the law have an effect on crime or gun violence? While gun violence did fall in the 1990s, this was likely due to other factors. Here’s the UPenn study again: “We cannot clearly credit the ban with any of the nation’s recent drop in gun violence. And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence.”

Note 4:  For another, radically different, view of why gun violence (and crime in general) fell during the 1990’s, read the book Freakonomics: A Rogue Economist Explores the Hidden Side of Everything by Steven Levitt and Stephen J. Dubner.  In chapter 4 of this book, the authors make a compelling argument that the single most important factor in the drop in crime was the Supreme Court decision in Roe v. Wade and the legalization of abortion in the US.  This is a subject worthy of a more extensive discussion, which I will consider for a future post here.

In the meanwhile, see:

http://www.freakonomics.com/blog/

and:

http://en.wikipedia.org/wiki/Freakonomics

Note 5:  Regarding the mass murder in Norway, see this Wikipedia article:

http://en.wikipedia.org/wiki/2011_Norway_attacks

Note 6:  I recently received an email from a West Point classmate who made the claim that the homicide rate in the US is “more than double every other Western County”.  He did not clarify his definition of “Western country”, but unless you limit “Western countries” to North America north of the US-Mexican border, he is just wrong.  For a full list of the world homicide rates by country, see:

http://en.wikipedia.org/wiki/List_of_countries_by_intentional_homicide_rate

There you will see that not only is our murder rate not “double every other Western country”, it is not even the highest in North America (not even second highest, actually, as both Mexico at 16.9 per 100,000 population and Bermuda at 12.3 have higher murder rates than the US at 4.2).

I also think Caribbean, Central and South American countries would be considered “Western”.  All 21 countries in the Caribbean have murder rates equal to (one country — Martinique) or greater than that of the US.  Eight Caribbean countries have murder rates five times or more than that of the US.  Jamaica’s murder rate (52.2) is more than 12 times that of the US.

All seven Central American countries have murder rates higher than that of the US.  Honduras has a murder rate of 96.6, 23 times that of the US.

Eleven of the 13 South American countries have murder rates higher than that of the US (Venezuela topping that list at 45.1)

Even in Europe (often cited as an exemplar for gun control which should be followed by the US), there are 8 countries which have higher murder rates than the US.  Only Western and Southern Europe have murder rates consistently lower than ours and not even all of those are as small as half that of the US.

Oddly, one of those (Switzerland at 0.7) has one of the highest per capita gun ownership rates in the world (4th behind the US, Serbia and Yemen).  For per capita gun ownership worldwide, see:

http://en.wikipedia.org/wiki/Number_of_guns_per_capita_by_country

Compare that list to the national murder rates and you will see that there is virtually no correlation between the two.  In fact, see this interesting article from the Harvard Journal of Law & Public Policy which posits that there is actually more of a negative correlation:

http://www.law.harvard.edu/students/orgs/jlpp/Vol30_No2_KatesMauseronline.pdf

One startling example noted in this study:  Luxembourg, which has such complete gun control that “handguns are totally banned and ownership of any kind of gun is minimal” has a murder rate (9.01) more than double that of the US.

Note 7:  For the US Department of Justice, Bureau of Justice Statistics, article on “Drugs and Crime Facts”, see:

http://bjs.ojp.usdoj.gov/content/dcf/duc.cfm

Note 8:  For a good article on “drug war” homicides, see:

http://narcosphere.narconews.com/notebook/bill-conroy/2012/03/drug-war-related-homicides-us-average-least-1100-year

Note 9:  For the Libertarian Party’s discussion on why we should end the “insane war on drugs”, see:

http://www.lp.org/news/press-releases/libertarian-party-40-years-is-enough-end-the-drug-war

Note 10:  “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”  —- Benjamin Franklin, Memoirs of the life and writings of Benjamin Franklin (1818).

Supremes Uphold Individual Handgun Ownership Right


In a major victory for the rights of individuals, the U.S. Supreme Court today held in a 5-4 decision that the 2nd Amendment to the U.S. Constitution does indeed protect the right of individuals to “bear arms” even if they are not part of a “well-regulated militia”.

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