Friday, April 17, 2009


I’m a Second Amendment fan. It’s the First Amendment continued by other means. Every country inhabited by responsible adults should permit people to have weapons to defend themselves. Better safe than sorry.

Of course, there’s a downside. Some very bad people use guns to do some very bad things. They use guns like assault rifles. It’s hard to know what to do about that. It’s not enough to say “no one needs an assault rifle to hunt or defend his home against burglars.” The Second Amendment is not about deer hunting. It’s about killing people, including not only burglars but storm troopers. Yet, we seem all right with the ban on Tommy guns, not to mention SAMs and other stuff that a serious insurrection would require. The fact is that we can’t let very bad people have insurrection-class weaponry, so we all have to do without it.

That we allow any kind of weapon makes one think “We know what kind of girl you are – now we’re just talking price.” It’s a slippery slope, youbetcha. But there are lots of slippery slopes, and we don’t slide down all of them. We let the government set the highway speed limit at 55 without fear that they would lower it to 5, or 0.

The gun-control slippery slope is interesting, though: it’s more a sliding scale than a slippery slope. Because we don’t let bad guys own machine guns and RPG launchers, the assault weapon is the worst thing we face in quantity. But if enough criminals use assault weapons to commit enough crimes, we’re back where we were with the Tommy gun. It’s not that our standards of freedom are slipping down the slope but that the downside of allowing certain weapons is becoming intolerable where once it wasn’t.

Likewise, the non-dealer exception to the background check law is proving quite porous. Too many non-dealers are dealing, at gun shows primarily, which is why people call the exemption the “gun show loophole.” There seems to be some disagreement about whether that exemption is making a difference in the flow of weaponry to Mexico. Something tells me that if the Mexican cartels had to get their guns somewhere else, they’d get their guns somewhere else. It’s one thing to show that the exemption enables bad guys to get guns here; it’s another to show that ending the exemption will prevent bad guys from getting guns somewhere.

Wackos, on the other hand, are another story. The non-dealer exemption allows people who would fail a background check to evade a background check. That shift in who buys where makes the “insignificant” number of non-dealer sales, well, insignificant. What matters is what percentage of dangerous gun buyers buy through non-dealers. If that number is too high, the exemption has to go.


  1. Larry- How about the Supreme Court getting it right,(and go back to what I believe the founding fathers meant by allowing for a "well armed militia") and allowing for appropriate license laws affecting guns. They got it wrong with their last decision, but maybe during the Obama term, the Court will get some better balance.

  2. Irwin -

    Thanks for the comment.

    If the Court got it right by your lights, what would a state be allowed to do that it is not allowed to do under current interpretation? Does the militia clause permit a state to disarm its population or limit their arms as severely as a "no hand guns" rule would imply? We already have licensing laws, and I support those. What else can the state do?

    Who will raise and regulate the militia, and may the state disarm folks by virtue of the answer to that question? Were the founders trying to stop the Feds from disarming people, so that the states could be in charge? The phrase "Congress shall make no law.." was available for that purpose, but they didn't use it. So maybe disarming the populace was barred, because a disarmed populace cannot form a militia when the need arises.

    I would draw a parallel to the First Amendment's right of expression. The First Amendment is not about your right to "express yourself." That's mere self-indulgence. It's about poltical process - my right to hear what you have to say. As it happens, you are better positioned than I am to know that you are being muzzled, and you are far more likely to care whether that is happening. So the Constitution gives you the right to express yourself. But it doesn't do it to protect your speech so much as to protect my access to it. (I'm not saying that free speech for its own sake isn't a good idea, just that it has no place in organic law, whereas protecting the exchange of information very much does.)

    Likewise, in order for there to be a well-regulated militia, the Constitution gives me the right to own weapons, limited perhaps to the class of weapons that members of a militia might own from time to time. If a state were to decide "we don't need no stinkin' militia," and try to confiscate all firearms, how would the militia clause play into the case? If they can't do that, what can they do?

  3. I scratched my head as to where you were coming from. You like the second amendment as a continuation of the first. I suppose that means that a well regulated militia will uphold first amendment rights against tyranny, if necessary. But I'm not sure you have figured out how, since you concede that there are acceptable limits to what citizens can arm themselves with and, at the same time, concede that they may be insufficient to defeat better armed storm troopers. So, what's left? The second amendment was not intended to protect citizens from burglars, rapists and other common criminals (although, to be truthful, I haven't researched this point). It speaks of a militia, not a posse. But, when we outlaw machine guns and even more lethal weapons, are we not implicitly limiting the alleged purpose of the second amendment to personal defense against criminals, rather than against government oppression? My own view is that the amendment was necessarily confined to the technology of the time -- muskets that could fire a round a minute, at best.

  4. George is right that the Second Amendment has limitations as a bulwark of liberty if, as we agree, heavy artillery can be banned despite it. Nor is that issue technological: even in the eighteenth century, John Q. would not, I believe, have been entitled to own a cannon. Still, modern assymetric warfare suggests that superior firepower is not all its cracked up to be. Sidearms and rifles might well make the difference in a guerilla operation.

    I disagree with the idea that the amendment was limited to flintlocks. I think it applies to anything a militiaman might be called upon to bring with him to duty, adjusted for the technology of the times. (George - do you believe that the Eight Amendment is similarly constrained to contemporary punishments and notions of cruelty?)

    The more interesting issue for me is the link between the justification of the right in the first part of the amendment and the extent of the right in the last. A key notion in my "Fifth Axiom" post is that some rules are what they are because a more philosophically satisfactory rule would have undesired results. Thus, I would ask George what I asked Irwin: What exactly does the militia clause do? What about the militia clause tells us how the right to keep and bear arms is to be interpreted for purposes of knowing whether it's being infringed? To what trusted authority does it give what otherwise unavailable power? (As for burglars, I don't believe the Second Amendment is about that either, but the Griswold court might well have found a gun in the home inherent in the Fourth or Fifth Amendment protections.)

    I'm reading Joseph Ellis's Founding Brothers. Ellis makes much of the colonists' distrust of central government. I suspect that the distrust of the states toward the Federal government was matched by that of the people for their state governments. So who was to regulate the militia? My conclusion is that whoever that was to be, an essential element of the militia's coming into existence was the diffuse ownership of weapons as a guaranty that no one power could render them unavailable at one fell swoop.

    The Second Amendment is in the passive voice. It is not a limitation on Congress. So on whom is it a limitation, and how can any limitation on small arms be consistent with it?


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