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‘The Language of No Compromise’: Revisiting the Fray

The gun issue in the United States is at once both an interesting and incredibly volatile subject. It requires even the most knowledgeable on the subject choose their words with the meticulousness of a criminal bookie. Otherwise, of course, their enterprises will be thrown wholly into one of the two partisan jails on the issue and there remain in an echo chamber. I claim neither comprehensive knowledge on the subject—though I have shot plenty of guns—nor invaluable pragmatic insight. This is merely an example of how rights talk—stark and unyielding rights talk in this case—leads to a dreary, pessimistic, and anti-social landscape in which we only ever “speak of what is most important to us in terms of rights.”

Which further seems to necessitate nearly every social issue being framed “as a clash of rights.” Conversations circling the topic of guns and gun laws are but one such example. While I think it is most pronounced in this example, the almost inherent impasse created by gun rights discussions are by no means an isolated feature of the gun debate. At this point, nearly all of our political “dialogue” follows the same vacuous, platitudinous, and ultimately Hobbesian rubric: “nasty, brutish, and short.”

As noted in my earlier piece, there seems to be an aversion to speaking about collective responsibility or our duty to other citizens here in the United States. There is relatively little debate over this point, yet immense difficulties arise when we depart from this small plot of agreement. Some say that it is this way and, for good reason, it should remain this way. As in, we are right to frame things in terms of individual rights and shouldn’t talk of collective responsibility. Usually at this point citing slippery slopes or 20th century nightmares that were done all, apparently, in the name of the exact type of collective thinking we just so happened to be talking about here. Others say it is this way but we should derive some better sort of ought from it as Glendon, the author of Rights Talk, hopes.

Regardless of these two distinctions there seems to be some confusion over what Glendon and those who agree with her want, and what people think Glendon and her followers want. Though I am not ready to say that the individualism versus collectivism debate boils down to a mere misunderstanding, there is a significant amount of air to be cleared before we get to the conflict at the bottom. Hopefully, in presenting an example we can see that what Glendon wants can be, in some degree, complementary to people’s right to bear arms while not actually changing or rescinding those rights.

I confess that my only reason for bringing this up again is due to my near obsession with finding compromise or attempting to stake out a middle path.

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Crudely summing up the debate on guns we can say that there are only about three positions, with minor deviations here and there.

The first rallies around the “shall not be infringed” clause of the Second Amendment and believes nothing more need be said on the subject.

The second is a sort of reformist-left position that believes gun laws need to be adjusted or modified to keep up with the times.

The third is the crowd that thinks the amendment should be repealed in toto—also due to “the times.” This last position being the crowd that is often caught hating the present for not being the future.

However, it’s no great secret that the second position usually tends to be a part of the third group just wrapped in a shroud of political realism. In other words, they eventually hope to repeal it, but common and political sense indicates to them that this needs to happen over time and perhaps even slowly.

Per Glendon, there seems to be a fourth position that can be staked out. One that will aim to satisfy the ends for which the the “repeal it” crowd hopes—i.e. reducing gun crime and deaths regardless of what the statistics show—while keeping the Second Amendment’s sacred right enshrined in language that, on a purely semantic reading, admits of no compromise whatsoever. Thus allowing the first group to be satisfied as well.

This, I think, is where the confusion lies. Glendon would not ask that any substantive changes be made to the Amendment at this particular juncture; it is far too heated and divisive a subject to warrant any expedient political action. The moderate understands that any swing one way or the other—right as the position may be—is going to infuriate the other side. Perhaps we will never get to the point where concrete political action is taken. What Glendon wants to do is reframe the conversation so that any and all talk of keeping the amendment, changing the amendment, or repealing it never even comes into the picture.

So to the condescending retort of “it’s my right, you can’t take it away from me” Glendon rightly agrees. But she would also insist that there is more to be talked about. That “more to be talked about” is not, however, strict legal reformism. Rather it is an open-ended discussion about how gun responsibility and safety is a good thing, and that this is the more important half of the Second Amendment. Much to dismay of gun-right absolutists, history is once again not on their side. Though the words of the Amendment might make it seem that way.

Glendon is right to point out that the Founders would have been suspicious of our modern way of talking about rights. Today, rights are “characterized by self-expression and the pursuit of self-gratification, rather than by self-reliance and the cultivation of self-discipline.” Given our situational lack of any civic virtue that was simply taken for granted during our nation’s early years, the founders would have happily pushed through, for example, a law requiring a certain amount of time each month dedicated to training with firearms. In the absence of self-discipline and any concomitant feeling of duty to one’s fellow citizens, this would seem like nothing short of a necessity. The founders were, above all, keenly receptive to felt needs along with their political education. Although a historical and cliche sin, I like to imagine they would agree with my sympathetic rendering of their judgement into modern times. I am often reminded of Burke—a conservative—when people think that their freedoms are boundless and require no restraint, as the Founders would have undoubtedly agreed:

Men qualify for freedom in exact proportion to their disposition to put moral chains upon their own appetites. Society cannot exist unless a controlling power is put somewhere on will and appetite, and the less of it there is within, the more there must be without.

Ironic that staunch defenders of the Second require so much of this “controlling power within” from others on other issues. In other words, the appetite for owning a gun, whether for a felt necessity or otherwise, begins and ends at the buying counter, when we should be fostering a conversation about the seriousness and responsibility that comes with buying a gun and continues as long as one owns the gun. This requires that responsible gun owners decry those who think simply in terms of a ‘right to buy a gun.’ The ones who know that this isn’t even near the entire story that needs to be told.

The sympathetic reader will see that what I am asking for is a change of atmosphere and attitude; not, as it were, a change in the laws. Gun rights advocates need to do a better job of communicating the seriousness of owning a firearm while downplaying the ferociousness with which they defend words on parchment. Yet these people do actually exist: folks like Sam Harris and Scott Reitz come to mind immediately, but there are plenty of others who haven’t made a career out of a romantic attachment to the Second Amendment. What these folks are focusing on, in Glendonian terms, is the second half of the equation; one that needs its importance to be revived. It is what is not said that we should work to defend rather than the easier and much less important task of defending words on a page. Words that will never be repealed without a second civil war.

Yet I am not so naive to think that the “other side” hasn’t contributed to the problem in their own, perhaps even larger, way: the repeal it crowd wishes to entertain no conversation about guns in a Glendonian light either. Their contempt for the words on parchment—and how they’ve seemingly outlived their usefulness—is simply the equal and opposite of those who only defend the words.

Argument and conversation, in other words, needs to be happening in the nuances. Nuances that will never be captured by parading and flaunting the founding fathers’ thoughts on the issue. Thoughts that, as any good historian knows, were never of any uniform opinion on the matter, and thoughts that even better historians know that regardless of what he or she said two-hundred years ago, nothing can speak to us as an absolute authority in the present. At least so much so that we feel we needn’t address the issue ourselves with new insights. Or at least old insights repackaged in a way that seems fit and accommodating.

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As a “call to action,” one might be forgiven for thinking that there is nothing here. Indeed, there is very little in terms of a concrete proposal other than, sadly, to keep the conversational fire alive. I have come to believe, for better or worse, regardless of truth or falsity, that every time a conversation ends abruptly or in flames is to chalk one up to violence. Of course it is not to literally punch someone in the face, but it is to think that problems will be solved by others; someone else, or some authoritative science. We are seeing the seeds of a an attitude that believes that our early and harsh disagreement with someone couldn’t possibly have any long term effects. Other than, of course, if everyone started to do it; then we’d be better off.

Of course my vote doesn’t matter; but our vote does. So too with conversation and political engagement in the trenches: of course our small, unoriginal exploration of political topics doesn’t matter; but as a collective whole it seems like it’s the only thing that does.


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305 thoughts on “‘The Language of No Compromise’: Revisiting the Fray

  1. Before engaging more deeply (which I will), I want to point out that I don’t recall anyone ever saying that the Second Amendment should be repealed. I have never seen any candidate campaigning that Congress should pass a Constitutional Amandment to repeal the Second, and that 3/4 of the states would be also willing to repeal.

    I’ve seen plenty of candidates discuss restrictions (reasonable or not) to gun purchase, or gun carry in public areas. I think several of those restrictions are reasonable, several aren’t, and none qualify in any way as a Proposal for a Repeal of the Seconf Amendment.

    Hence I’m concerned that this piece wrongly frames the discussion, as between maximalist rights vs Second Amendment repealers, Even those in the middle are described as just cunningly disguising their Repeal objective in a shroud of political realism.

    By framing the debate as one between maximalistas and repealers, of both the upfront -but not very visible- or the cunning varieties, any debate on reasonable restrictions becomes imposible. Should I say “I’m in favor of mandatory waiting periods to buy guns” the answer will be “it is well known your real objective is to repeal the Second, so, no to waiting periods, because it’s just a fog curtain. You want to take all my guns away”.

    If anything, me, personally, I want to enforce the whole of the Second Amendment, and develop into law the part about “well regulated Militia” which allows states and the Federal government to, well, regulate.

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      • Locals? Really?

        The Mayor’s platform in your locality includes “Pass a Constitutional Amendment repealing the Second Amendment”? Is it above or below “Reduce pothole repair time to less than three working days”?

        It shows how different Houston is from anywhere else in America. Our Mayor only included the pothole one in his platform

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        • Several state / local officials have stated on the record words to that effect. No it’s not been on a platform or such. It doesn’t need to. It’s used to distinguish themselves from the liberal republicans that run opposite them.

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          • So it’s now “words of that effect”?

            What kind of words are of the same effect as “Congress should pass a Constitutional Amendment and send it to be ratified by 3/4 of the states”? Are they instead suggesting a Constitutional Convention?

            Words like “There should be a waiting period” or “No fly, no gun” (I oppose this one btw) are not the same as “Repeal the Second”.

            If we can’t discuss waiting periods, because the counterparty hears it no different than Repeal! then, yes, any conversation is impossible, not because waiting periods are Repeal! shrouded in the veils of deceit, but because Group number 1 does not recognize the legitimacy of those that do not agree fully with them.

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            • Well you stated: ” I have never seen any candidate campaigning that Congress should pass a Constitutional Amandment to repeal the Second,”

              I said I’d heard local politicians and local citizens say words to that effect, such as “no one needs guns anymore and we ought to get rid of them” or I don’t see any need for anyone to have have a gun”.

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                  • Damon,
                    I don’t consider it all that stupid to ban guns in a city. Then again, I don’t think using a gun to defend yourself is the smartest idea in the world. Three things with a gun: awake, aware there is a threat, and knowledge of where the threat is. Give me a bit of time, and I can take away all three of them. (Carbon monoxide’s a decent “go to sleep” trick, ain’t it?)

                    Lot harder to disarm a steel door than it is to steal someone’s gun.

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              • I don’t see a need for me to have a gun.

                I don’t see a need for any of my friends, family, and neighbors to have guns (except for sport, if they want, properly regulated, with a permit, lessons, paperwork, and safety requirements, so their children don’t kill each other playing cowboys- but nothing in this parenthetical qualifies as a NEED)

                So that’s a lot of people I don’t see they NEEDing a gun.

                How does that signify I “want to Repeal!! The Second Amendment”?

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                  • I’ve done more that study Argentina

                    I’ve sat in the board of an Argentine distribution utility and an Argentine generation company

                    What’s the use of a gun in a bank run? Are you going to kill those customers ahead of you? That’s not how bank runs work. There’s no cash “in branch”

                    So besides Argentinian bank runs, what else you NEED a gun for? Not you WANT one (like for sport or hunting). You need one, like your existence might hinge on it.

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                    • J_A,
                      Ask them what it was like to be in a country without banks. 2001 to be specific (if I have the timeline right). Roving gangs, governmental collapse.

                      It was a good time to be out of the city, with a gun in your hand, and friends to watch your back while you sleep.

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                      • An aunt of mine in Switzerland once asked me if people in Latin America knew grass (as, in the stuff in your yard)

                        I stared at her in disbelief. She said “I guess it’s a silly question, grass is everywhere”. I said “Indeed”.

                        Argentina 2001 was not Mad Max. It was no worse than Athens 2015. it was actually a very popular tourist destination (several friends of mine went at the time) because everything was ridiculously cheap. Like a brilliant steak and wine dinner for four for under ten dollars.

                        And none of my friends was massacred. Not even eviscerated.

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                • If you don’t NEED X, then why do we need to have a RIGHT to X?

                  ETA: To expand, if your perspective is firmly invested in evaluating the lack of a need for something, then it becomes difficult, if not impossible, for you to see good cause for a right to that something to exist. If you can not justify the right, then you have no incentive to protect it, so even if you personally don’t want to repeal it, you have just become a person who won’t both to rise to it’s defense.

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                  • I’d go farther than that: the whole point of having a right to something is that you get to have it even if you don’t/can’t demonstrate a need for it. I mean, I’m an atheist and am not really sure anybody actually needs religion, but, well, that seems like a pretty weak argument for getting rid of people’s right to worship as they please.

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                  • I disagree with your disagreement

                    I’m not saying rights are conditioned on NEED to have. No one NEEDS freedom of expression, or freedom of religion. And yet I wholeheartedly support those, as perhaps the most cherished legacy from the Enlightenment

                    Our learned co-commentator Damon said that when people say that you don’t need a gun, that is just code for Repeal! All I’m saying is that I, personally, don’t need a gun, nor do I know of anyone that actually NEEDS one, and therefore I find the sentence “most people don’t need a gun nowadays” both totally accurate and totally banal. And not tied in any way to Repeal!

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                    • Yes.

                      @j_a
                      Think of it more like signalling. People who actually try to think about rights in a serious fashion understand that need has nothing to do with rights. They understand that these work exactly like pillsy says.

                      Sadly, most people don’t seriously think about rights, so needs & rights are much more tightly linked in their minds. Hence if there is no compelling need, there is no cause for a right. Conversely, if there is a need, then there absolutely should be a right (see HealthCare).

                      Ultimately, when evaluating rights and whether or not there is cause to protect them, the question of need should be largely avoided.

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                • “How does that signify I “want to Repeal!! The Second Amendment”?”

                  It doesn’t, assuming your are telling the truth. But others have used it (i have personal knowledge) and the DID mean it. But, you don’t think a lot of people need a gun, and I’d venture to say that your position is more like “very few if any” need a gun. Ergo, you support restricting my decisions on what I need because you think your view is better/superior. I don’t care what you think or do personally, it’s when you start effecting me with your actions that matters.

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          • I think there’s dicta from Scalia himself, PBUH, that the Seconf Amendment does not extend to ownership of nuclear weapons.

            With respect to weapon storage, zoning is a municipal competency, unless preempted by the state. It’s perfectly consistent with subsidiarity that a municipality would impose a ban on storing and using nuclear weapons inside municipal limits.

            Or are you one of those big government people that want to centralize everything?

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            • Heller speaks to the sorts of weapons that are ordinarily used by a large number of people. There was never a right to privately own artillery, for instance; though this was perhaps tolerated in some places (for small cannon) few people ever did and such weapons are not very practical for personal defense or hunting so were never hugely popular for anyone but an enthusiast. So we’re pretty much speaking of “small arms” within the scope of Heller: handguns, rifles, and shotguns.

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              • While there may not be a right, per se, to own artillery, it’s actually not very tightly regulated. Mostly because cannon are expensive, not very portable (relative to a personal firearm), and are very much a niche hobby.

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              • But the Second Amendment doesn’t speak of hunting, or sport, or defending homes against burglars. It is not “A well regulated hunting season, being necessary to the recreation of a free state, ….”

                Thus, reading war weapons out of the Second Amendment is just Scalia PBUH making things out of thin air. Small cannons are part of a well regulated militia, too.

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                • I think, more to the point, that if you take the militia clause as defining the sorts of weapons that “arms” is supposed to encompass for individual ownership, automatic rifles, machine-guns and grenades should all be legal since they all have a very clear purpose for a militia. In point of fact, all of these are very heavily restricted, and there is little apparent interest from pro-gun folks in changing that.

                  I don’t think this is a particularly useful argument when it comes to setting policy, because I don’t think it’s that meaningful that our understanding of the scope and purpose of the Second Amendment is different from the people who wrote and ratified it. Others, of course, disagree.

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                  • There’s might be good arguments, including good Constitutional arguments why grenade ownership can be heavily regulated, by I don’t think that “because the Founders were all thinking solely about hunting when they wrote “a well regulated militia” is not it.

                    My point is that “well regulated militia” is there for a reason, it is the objective itself of the Second Amendment.

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                    • By the way, the Swiss model is more likely what the Founders had in mind when they wrote the Second Amendment (*). An obligation of all citizens to train in the militia AND an obligation for all trained citizens to have their own, very regulated, arms at home.

                      (*) Swiss mercenaries was probably the main export product of the cantons since the Late Middle Ages, all the way to the French Revolution (they are mentioned in Hamlet). The tradition continues today in the Vatican’s Swiss Guard

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                      • Agree-ish. Mainly because the founders were not excited about the idea of standing armies. How those militias would be “regulated” was something for the states to decide (Brother Dave has written quite a lot about this, and while I’m not fully sold on his thesis, it has considerable merit).

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                    • And my point is that regardless what the Founders were thinking about, or even the words they wrote, the modern Second Amendment is much more about protecting the right of individuals to own handguns for personal defense than anything else. The whole line of thought that led to the Second Amendment (and the now almost entirely forgotten Third Amendment) isn’t really operative any more, because the country as a whole long ago gave up its suspicion that having a large standing army poses a dire threat to individual liberty and property.

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                      • the modern Second Amendment is much more about protecting the right of individuals to own handguns for personal defense than anything else.

                        That was the scope of Heller, but it’s not the scope of modern Second Enders. Right now they may not be entirely clear on the upper limits of what constitutes “arms” and so on, but in my view the fundamental motivation is to prevent restrictions on owning (at least) all guns. IOW, it’s not about hand guns accept insofar as handgun restrictions are a focal point: they’ve been imposed and overturned.

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                        • Right, but Heller and McDonald are, I think, really important parts of how the Second Amendment is understood [1], and there’s also the fact that gun rights advocates tend to be very concerned about their ability to defend themselves from crime. As for the upper bound, I really do disagree–there seems to be little appetite for loosening restrictions on automatic weapons, for instance.

                          [1] Which is my big problem with the decisions, since they seem to provide very little guidance for legislators who are trying to figure out what is Constitutional beyond, “You can’t totally ban people having handguns in their home.”

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                          • but Heller and McDonald are, I think, really important parts of how the Second Amendment is understood

                            Only in the sense that they constitute decisions identifying the scope of the 2A by according an affirmative right derived therefrom. But that has little to do with how 2A is “understood”, seems to me.

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                • Certainly, the text of the Second Amendment does not speak to concerns like this. The text of the First Amendment does not speak to defamation or espionage, either. Defamation and treason are accomplished through acts of communication, which would seem to be protected by rights of speech and press. Yet there is little controversy that these things can be regulated to prohibition (by way of rendering defamation an actionable tort in legal claims and by way of criminalizing treason) without violation of the First Amendment. The category of speech is interpreted to be beyond the reasonable construction of that portion of the Constitution: whether you get there by way of purporting to attain an understanding of the original public meaning of the phrases used, an understanding of the raw meaning of the text, or by way of balancing out the public policy concerns embodied by this law, no one credible suggests that these things are First Amendment protected conduct.

                  So why should we look at the Second Amendment any differently? The right to keep and bear arms is, on the text alone, seemingly absolute, but other absolute rights like speech and publication are not, in practice, absolute. Indeed, the Second Amendment openly speaks of “regulation” where the First Amendment uses even more absolute language against abridgement.

                  Moreover, what’s a “war weapon”? A weapon that a soldier would typically use in times of war? This would include a wide variety of handguns, rifles, and shotguns (used extensively during the Great War IIRC), close cognates of which are widely owned and regularly used by civilians for civilian purposes. We’re back to the “define ‘assault rifle'” problem here.

                  Point being: the text will take us far. But especially when we have sparse, general, and politically-softened language, we simply cannot dispense with human judges whose job it is to interpret and apply that text in given situations. If it wasn’t Scalia pulling something out of the air, it might have been Breyer or Ginsburg someone else on the bench doing it. Perhaps you’d have preferred it been Ginsburg. Others surely would say, if it had to be someone at all, Scalia was the best possible choice. I say, someone has to make that call, and that’s inherently how our system of law works.

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                    • More charitably, judicial restraint. “We don’t need to decide more to resolve Heller other than that a complete ban on all handguns for all people in all circumstances is unconstitutional.” Therefore, that’s all they really decided.

                      But there’s also another reason, aside from squeamishness: what William F. Brennan called “the Rule of Five.” (Go ahead and make a flat palm with one hand, spreading your fingers wide, the way Justice Brennan did it when he talked about this.) In order to get anything out of the Supreme Court, you’ve got to get five people to agree on it. And while it may seem superficially that they break down into ideological blocs, the truth is each one of them is an individual who has their own take on things. The more broad and sweeping a statement is, the less likely you’re going to get five of your Sister or Brother Justices to be willing to sign off on it.

                      I can give both of those answers without getting to my question back to you: what do you mean by a “general, perhaps even fundamental, interpretation”? Because my third point is that a lot of the dicta/preliminary reasoning found in Heller gives exactly the sort of intellectual framework I think you’re looking for: what, in broad and theoretical terms, do these words mean? Heller uses a largely historical lens to answer that question, but if you just skip to the holding, you’re going to miss it. It may be the case that Heller is that interpretation you crave; if not, maybe you can suggest some sort of cognate for some other Constitutional right that I could look at — say, the way Washington v. Glucksberg defines the right of substantive due process as an exercise of a fundamental individual right which is “deeply rooted in the nation’s history and traditions”.

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                      • Thanks Burt.

                        My answer – squeamishness – actually cuts two ways. One, that the court isn’t going to go beyond the merits of any particular case involving 2A, but also that from their pov the a fundamental, general resolution to the issue might resolve to political issues that aren’t strictly within the Court’s purview to affirmatively determine.

                        On the other hand, I imagine that the number of SC decisions regarding the 1A, and the 4A, 5A … are orders of magnitude greater than decisions regarding the 2A. I could be wrong about that, but (if not) then the dearth of decisions regarding its scope strikes me as interesting (if not noteworthy).

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                      • As I understand it, Heller itself was, in fact, a rather sharp turn for SCOTUS. It’s not like Heller’s the latest in a long line of movement on the 2nd Amendment.

                        There hadn’t been much on that for decades, and Heller was a departure from the previous status quo, which had gone more or less unchallenged since what, roughly 1900 or so?

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                        • 1939, actually. United States v. Miller, 307 U.S. 174. Congress can require that particular kinds of long guns be taxed, marked, and registered without unconstitutionally infringing on the right to keep and bear. Not a super illuminating case for the issues raised by the OP specifically (are we going to actually listen to one another?) or the contemporary gun rights debate more generally (to what extent ought we regulate gun ownership?).

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                          • The OP? The one that started with “If this is your position, you’re a liar, so I will tell you what your real position is”? Poisoning the well a bit, I think. (Perhaps that’s not what he meant, but that’s how it’s read. And he’s talking about MY position in this case. There’s no point in arguing in a case where your own side gets strawmanned into the basic assumptions).

                            The whole thing with Heller was that, prior to that, you had what — a century or more of Second Amendment being seen as a collective, not individual right? Where there wasn’t a single case that challenged that notion making it to SCOTUS?

                            The notion of the second amendment as an individual right — as settled law by SCOTUS decision — is about 6 years old.

                            Prior to that, it had been settled since the Civil War (if not earlier) that there was no individual right, just a collective right by each State.

                            And I think that the relative newness of Heller, and the lengthy precedent it overturned, IS kind of relevant to the debate. SCOTUS has gotten it wrong before, and this was a pretty large sea change in Second Amendment law.

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                              • However, it’s no great secret that the second position usually tends to be a part of the third group just wrapped in a shroud of political realism. In other words, they eventually hope to repeal it, but common and political sense indicates to them that this needs to happen over time and perhaps even slowly.

                                Glendon’s point, not the OP’s but a lot of the OP rests on that being true, because he continues on talking about the binary set (“ALL GUNS/NO GUNS”).

                                Which makes much of it, you know, pointless if you don’t buy into that binary set. And kind of insulting if you are the people that are supposedly sekretly “NO GUNS” and just pretend otherwise.

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                              • I sure did. It’s stated right there in black and white:

                                However, it’s no great secret that the second position usually tends to be a part of the third group just wrapped in a shroud of political realism. In other words, they eventually hope to repeal it,

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                  • I’ll divide my response in two parts:

                    Part A:

                    I agree one hundred percent with every single word you just said

                    Part B:

                    We agree that the First Amendmentcan be regulated. So can the Fourth (shame). Etc. Reasonable regulation of the Second shouldn’t be this controversial. But Adrian’S Group One refuses any regulation whatsoever, because Repeal!!. So if there is a break in the discourse about gun rights, I don’t think it comes from those of us that, allegedly, only want to shroud our nefarious Repeal! plans in the mist of obfuscation.

                    And Part C of 2:

                    Replacing sport and hunting and self defense against burglars as the objective of the Second Amendment, might be the correct thing to do given the reality of the world today. But it’s not Originalism. It’s Living Constitutionlism (*)

                    (*) Im a Living Constitutionalist. I find that a Constitutional interpretation doctrine that requires us to think “what would your reasonable XVIII century person do, abstracting any changes since then (or since the end of the Civil War)” robs the Constitution from the flexibility to adapt itself to changed circumstances. A Constitution that requires us to arrange our lives according to XVIII century principles will soon be a scrapped Constitution.

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                  • In many ways, the precise reach of the Second Amendment is beside the point. As a political matter, in no place larger than a municipality is it possible to enact something that would violate the current judicial understanding of the Second Amendment, or any refinement of it we are likely to see.

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            • “t’s perfectly consistent with subsidiarity that a municipality would impose a ban on storing and using nuclear weapons inside municipal limits.”

              Yeah, but that’s really not what the municipality is doing. It’s a political statement. Takoma Park isn’t a place you’d store or use nukes.

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              • “Yeah, but that’s really not what the municipality is doing. It’s a political statement. Takoma Park isn’t a place you’d store or use nukes.”

                Why not? What makes Takoma Park a place where nukes CANNOT PHYSICALLY be stored?

                If they can be stored, but they won’t, the only reason it is that a political decision was made not to. Why is the municipality not allowed to make such a political decision? If the Takoma Park municipality declared itself “nuke friendly” would you also criticize it as a political statement? Would you also say nuke friendly Takoma Park is not a place where nukes will be stored?

                Perhaps the citizens of Takoma Park feel strongly about nukes in the area, and the municipality is reflecting their constituents.

                The Charlotte municipality made a decision that reflected their community. Instead of focusing on voting the council people out at the next election, people that disliked the decision just said “well, it sucks to be you. That’s a political statement and I’m reverting that decision.”

                For the record, I’m not a fan of states or municipal rights. I would federalize much more than what is currently federalized. But you can’t be selectively in favor of subsidiarity on an ex-post basis, depending on the decision that was made.

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          • These sorts of things are principally political signalling, or messaging to the Federal government and the population at large if you will. They have little to do with anything that might actually affect public policy. There are so few nuclear power plants (even the small-scale experimental ones used for research rather than generation) that an ordinance saying “we won’t have one built here” is basically cost-free; there is no legal way a municipality can prevent the Federal government from placing nuclear weapons where it wills (I speak of legality and primacy of Federal power here; a municipality may gather enough political pull to win a dispute in Congress but that’s a case-by-case thing).

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            • Burt Likko: These sorts of things are principally political signalling, or messaging to the Federal government and the population at large if you will.

              That is exactly my point responding to @j_a ‘s comment about Mayors who say stuff about repealing the 2nd amendment instead of fixing potholes.

              Local governments do these silly ‘sense of the council’ resolutions all the time.

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          • What does that mean? No nuclear weapons storage? No commercial nuclear reactors? No transport of nuclear waste? No small scale reactors for producing isotopes used for a variety of things? No medical tests using radioactive tracers? No americium smoke detectors?

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              • Boulder is the only Colorado city on Wikipedia’s list of places that have passed such ordinances. They restrict themselves to nuclear weapons, and exclude anyone who is doing weapons work as an employee of the federal or state government. As I read the statute, taking up a hobby of writing code to simulate nuclear weapon designs or parts thereof (eg, the shock wave from shaped conventional explosive charges in implosion weapons) might be illegal. Depends on how the phrase “intended for production” is interpreted.

                Following Project Rio Blanco in 1973, Colorado added an initiated provision to the state constitution requiring that detonation of nuclear devices in the state receive prior approval by a vote of the people.

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    • I don’t think anything you’re saying contradicts anything I’m talking about. Focusing on the “well-regulated” part was my whole point. And when I was framing the conversation about guns, I was framing it from the citizens‘ perspective; not politicians. In my experience – which hasn’t been long necessarily, but being in both blue and white collar areas – most peoples‘ opinions are right around the three positions with minor deviations here and there. Forgive me for perhaps being too general.

      However, like most of our issues, I do think the gun debate is already or is heading toward a maximalist versus repealers situation… I’m more than happy to be proven wrong, and our political machinery (whatever that means) may in fact stifle this divide further.

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      • But Group Number 1 rejects that Well Regulated Militia has any meaning whatsoever, and claim it does not modify anything afterwards. Hence, for them, any regulation Is unconstitutional.

        I reject the concept that regulation is the same as Repeal. I also think there are too many handguns in America, very few of them protecting anybody (I don’t have one and I don’t feel I need protection), but a lot of them hurting and killing innocents through inappropriate management.

        And I appreciate ithat Damon is going to intervene when he witnesses a gun user behaving wrecklessly. Regretfully he never seems to be around when toddlers play with their dad’s gun. Come on, Damon, you are slacking :-)

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        • Generally I don’t hang out with idiots, and I don’t hang out with idiots with guns. I also don’t associate with terrible drivers or drivers who text while driving. It’s “unsafe”.

          I was at a cook out once and we were shooting skeet. There were a lot of guys who didn’t shoot much or had never. We were all lined up along a line with several folks deep in the queue. I was third and watched the guy in front of me load his shotgun while the barrel was pointed at the head of the guy in front of him (who was doing the actual shooting). I called attention to this to the guy loading up, talked about where his safety was, proper muzzle control, not loading up before being on the firing line, etc. and spend the next hour or two playing “range master”. I did my part.

          But if you’ve got a gun in your house and curious kids, you’re on your own. Every time my young niece and nephew came over to visit EVERYTHING secured and out of reach: phones, breakables, electronics, everything.

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    • First off, I want to say, “Damnit Adrian, I have work to do, and you go ahead and fire up this boiler!”

      @j_a

      This:

      If anything, me, personally, I want to enforce the whole of the Second Amendment, and develop into law the part about “well regulated Militia” which allows states and the Federal government to, well, regulate.

      Is often a nasty bone of contention. It really depends on how you read “well regulated”. Some read that as, “we can regulate the right such that it is practically impossible to exercise the right”, others (such as myself) see it as speaking to the need of citizens to not only understand and practice firearms safety, but also to maintain proficiency. Taking it further, we could also talk about a more social aspect (a militia being more than one person, after all).

      IIRC the understanding of “well regulated” at the time of the writing of the constitution was one of trained & drilled. Even the hard core absolutists accept this definition, and their only concern is that someone would try to demand an active duty military level of training & drilling (which is unreasonable for most private citizens).

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  2. “As noted in my earlier piece, there seems to be an aversion to speaking about collective responsibility or our duty to other citizens here in the United States. There is relatively little debate over this point, yet immense difficulties arise when we depart from this small plot of agreement”

    Really? Maybe that’s because people don’t see it as worth debating? I sure don’t. My “responsibility” to the public, generally, is not to commit crimes….and to be more precise, not to commit crimes that harm other individuals. I see no other responsibility to anyone else, other than the ones I take on voluntarily.

    Of course gun responsibility and safety are good things, and any responsible person is going to weight the advantages / disadvantages of firearm ownership/storage/safety/defensive use/whatever differently, but that is a personal issue, not a societal issue. And as a responsible person, if I see someone being careless with a firearm, I’m going to want to step in because I understand the impact of an accident, but I don’t expect ,nor require, society to do so, especially by people who have no knowledge or experience on the topic.

    “Yet I am not so naive to think that the “other side” hasn’t contributed to the problem in their own, perhaps even larger, way: the repeal it crowd wishes to entertain no conversation about guns in a Glendonian light either. Their contempt for the words on parchment…” Yeah, I’ll sit down and chat when these people pull back from bans and actually want to talk….and demonstrate their commitment to do so first. Until then, there’s no need for dialogue. Fool me once, shame on you. Fool me twice, shame on me.

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    • Ah yes, you’re the one who hated my first piece too! haha

      I guess our difference lies here: you believe most issues, such as this one, aren’t worth debating because the other side refuses to engage too. But I believe, perhaps a bit too optimistically, that someone’s got to give. And by give I do not mean give in, but rather engage and converse with the other side.

      It’s a difference in which I have no way of showing how or why your view is misguided or unnecessarily harsh; I can only put forward my belief that refusing to engage or converse at even the tiniest of conversational levels is far more damaging to things than any law. That might be too bold a statement, but you probably see my point.

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      • “Ah yes, you’re the one who hated my first piece too! haha”

        No, I didn’t hate it. I disagreed with it. If my tone conveyed “hate” to you, you have my apologies.

        “I guess our difference lies here: you believe most issues, such as this one, aren’t worth debating because the other side refuses to engage too.” I’m happy to debate most issues, but this issue generates polarity AND the opposition has been very disingenuous, frankly, outright lying, about their goals. I’ll engage with these people, as I said above, when they move first and demonstrate with actions that move. Like maybe repealing my states recent more restrictive “assault weapon” ban. “Cause you know, all those $3K assault rifles are being used by the crooks in the street.

        Is my position harsh? Sure. How many times do you have to extend your hand, or watch others do the same, only to have it slapped back or get betrayed on the agreement you made?

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  3. I’m unclear on what policy problem the suggested approach–of asserting a collective responsibility around responsible firearm use–is intended to address. It’s not that there aren’t any policy problems associated with firearms, obviously, as most of the US’ very large [1] number of homicides are committed firearms, and they also account for a huge number of suicides. In both instances, though, the problem appears to boil down to people intentionally using firearms to kill other people or to kill themselves.

    Accidental firearm deaths are very rare given how many firearms are out there. They could all go away tomorrow and the contours of the issue would shift barely an inch.

    [1] Relative to other developed nations.

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    • I see your point, but I wasn’t necessarily equating the promotion of gun safety and responsibility with a reduction in accidental firearm happenings. I was more talking about the necessity of a conversation that doesn’t end in “it’s my right to own a gun” or “it’s my right not to be afraid every time I go to a movie..”

      The conversation, given that we can get past this nonsensical rights talk, would no doubt broaden the horizons of the conversation to include other things – the things you’re talking about. Mental health, civic duty, or even ideas like private companies that mandates their members to train a certain amount… Things that set the dialogical bar a bit higher than what we have. The exact same rubric can be seen with the abortion debate, though people are beginning to break out of that now too.

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      • Even getting past rights talk–sensible or otherwise–you’re still left with the fundamental problem that lots of people have guns and want to keep those guns, and with no small amount of justification view their gun ownership as a positive thing for them that imposes no costs on anybody else, and that other people having guns imposes no costs on them. A lot of this is because these people live in rural environments where guns are useful for all kinds of reasons, and violent crime is not much of an issue.

        Other people have no guns, see no benefit to having guns, and feel, often but not always justifiably, that they are at an unacceptably high risk of being shot. These people often live or work in urban environments where there is a lot of crime, and don’t a lot of use for a gun.

        Stripping away the “rights” language does not, in this instance, do much to point a way to a solution. People on both sides feel like they’re being asked to pay a significant cost for someone else’s benefit.

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  4. Per Glendon, there seems to be a fourth position that can be staked out. One that will aim to satisfy the ends for which the the “repeal it” crowd hopes—i.e. reducing gun crime and deaths regardless of what the statistics show—while keeping the Second Amendment’s sacred right enshrined in language that, on a purely semantic reading, admits of no compromise whatsoever. Thus allowing the first group to be satisfied as well.

    How is this supposed to happen? There is always some sort of half-hearted commitment from the NRA to improving mental health services after a mass shooting but that half-hearted commitment disappears quickly and gets replaced with wild and wrong conspiracy-theories that accuse Democrats of staging massacres like Sandy Hook. Plus you run into the problem that the right-wing hates funding things like mental health services.

    I do think a full repeal of the Second Amendment is a non-starter and also impossible. But it seems clear to me that the gun nuts want nothing more than no compromise. They don’t want to respect the boundaries and norms of liberal areas where carrying a gun in public is a no go. They refuse to do anything but keep a maximalist position for their damned masculinity compensation toys. They seem to insist on making everyone love guns as much as they do.

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  5. How do we deal with the Jim Cooley’s of the world?

    https://www.washingtonpost.com/national/guns-and-sodas/2016/09/17/805e0db4-79e9-11e6-bd86-b7bbd53d2b5d_story.html

    It seems to me that believing you need an AR-15 to go to Wal-Mart and buy soda is being a few cards short of reason and rationality. The chances of being attacked by terrorists at a Wal-Mart in suburban Atlanta are slim to none. How did this man go from not needing guns to needing them all the time?

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    • Why do we need to do anything about Jim Cooley?

      The open carry folks are loons and fools, but they’re not the ones responsible for the gun crime. The argument against them always comes down to the fact that they’re flaunting their 2A rights in a way that gun control advocates find offensive. In other words, it’s culture war.

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      • The problem is we don’t trust them to not be using open carry as a way of conveying an implicit threat, since many of them do exactly that–see the practice of bringing rifles to protests in front of mosques.

        This is actually an area where ‘s suggestion might help a little. The best way to deal with loons and fools being loons and fools in a legal fashion are cultural.

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      • Because I think Jim Cooley is more likely to kill someone with his gun than he is to be killed by terrorists at Wal-Mart. He is also more likely to kill someone with his gun than he is for being a hero and stopping terrorists with his gun.

        And frankly I am not cool with that.

        Now the death would probably be because of negligence rather than malice. The guy doesn’t seem to know good gun safety based on how he lets the gun rattle around in his van. But I am still not cool with that.

        And yes, his idea of a terrorist attack at a Wal-Mart in suburban Atlanta is unrealistic and should not be indulged or coddled. Man needs to get a grip on reality and statistics.

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        • Because I think Jim Cooley is more likely to kill someone with his gun…

          Great. You think he’s likely to do something so he must be a threat.

          Would you happen to have any actual evidence that open carry folks have any increased likelihood to commit gun crimes?

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          • Would you happen to have any actual evidence that open carry folks have any increased likelihood to commit gun crimes?

            You’ve already stipulated that he’s a loon and a fool. People who do crazy and foolish things with firearms often pose a danger to themselves and others, and, well….

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            • As far as I know there is no IQ qualification for bearing arms and, even with much stricter psychological screening rules in place, I’m pretty sure that it would take more than some random guy’s internet comment to get someone diagnosed with psychological problems.

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              • I’m not saying there’s an existing legal avenue for taking his gun away or even prohibiting him from carrying it into the local Kroger’s to protect himself from the Whole Wheat Bandit. I’m agnostic about legal restrictions on open carry [1].

                I am saying that has plenty of justification for being alarmed by him and others like him.

                [1] I’m all for legal concealed carry, BTW.

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                • Saul can be concerned all he wants. Just like some other guy can be concerned every time he sees a brown person looking suspicious or concerned that gay marriage will have us on the road to Sodom. Without evidence, though, none of this meets the bar for justification.

                  [1] I’m all for legal concealed carry, BTW.

                  This is a good example of being more concerned with how things appear than how things are. In most places where open carry is legal, it is illegal to conceal carry without a specific licence. In other words, the law tends to consider people carrying concealed weapons to be a greater threat than people open carrying.

                  There is a reason for this.

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                    • What sort of a threat does having a hunting rifle imply again?
                      Because, if I’m not mistaken, that motherfucker can shoot you without needing to be seen.

                      “Oh, Hai, I haz a gun!”
                      “Yeah, but if you’d meant to shoot me, you’d have shot before I could shoot back.”

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                    • I’m not sure what you’re disagreeing with. People carrying concealed weapons are a greater threat to public safety than people open carrying. There is no open carry gun crime wave. People who want to do other people harm generally don’t telegraph their intent.

                      Again, you can be concerned with appearances or consider those appearances threats all you want. Just like the bigot can consider a Middle Eastern man an implicit terrorism threat or a black man an implicit crime threat. That’s absolutely your right. Luckily, we live in a country that tends to give greater weight to an individuals right to be than with some other individual’s concern with appearances.

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                      • There have been quite a few people carrying guns and knives around here, openly. With intent to use them — and some have actually stabbed people.

                        Thing is? Cops get called when you do that in the city.

                        You can’t assess the “open carry crime wave” because It’s going to happen in places where criminals wont’ be spotted.

                        Biker gangs open carry a lot, I’d wager.

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                      • People who want to do other people harm generally don’t telegraph their intent.

                        But people who want to intimidate people and keep them in line do telegraph their ability to cause harm all the time. Indeed, that’s more or less the definition of the word “intimidate”. This intimidation is obviously the point for quite a few of the open carry idiots.

                        You can argue that it should be legal–I’ve seen reasonable arguments to that effect–but why should I believe it’s in any way appropriate?

                        Just like the bigot can consider a Middle Eastern man an implicit terrorism threat or a black man an implicit crime threat.

                        Are you seriously equating, “being black or Arab,” with, “carrying a gun in the supermarket”?

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                        • Fine. Show me some proof that most people who open carry are trying to intimidate other people. Open carry activists aside, who I do wish would just go away, most people who open carry are just people for whom a sidearm or rifle just isn’t that big a deal.

                          The problem is that we end up playing this circular logic game where some people find guns intimidating, so anyone carrying a gun is trying to intimidate.

                          Are you seriously equating, “being black or Arab,” with, “carrying a gun in the supermarket”?

                          No. I’m not. I’m pointing out that people find their own reasons to feel threatened and those reasons are almost always more about stereotypes and prejudices than they are about sober, reasonable threat assessments.

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                          • The last time I saw someone carrying a longgun, he was engaged in illegal activity at the time, and I felt quite threatened even though he probably wasn’t going to shoot me even if my idiot mom walked up to him and said “hunting season starts tommorrow.” (we were on land he wasn’t to be hunting on, anyway).

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                          • Because I am talking about open carry activists…? The whole “open carry activists aside” thing is exactly the problem, and a lot of the people who’ve attracted attention by going strapped to Target or wherever are indeed open carry activists, and to outside observers, people open carrying in places where they usually don’t open carry are extremely hard to distinguish from open carry activists.

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                          • Show me some proof that most people who open carry are trying to intimidate other people.

                            Seems to me that would require “proving” the psychological intent of open carriers, which is impossible, short of inconclusive subjective first person reports (eg. “are you trying to intimidate people?” “No. No I’m not.” QED!)

                            This is one area where inference to the best explanation makes sense. Openly carrying in public, as opposed to concealed, seems best accounted for as a form of signalling, one that includes intimidation as a fundamental component.

                            I’m pointing out that people find their own reasons to feel threatened and those reasons are almost always more about stereotypes and prejudices than they are about sober, reasonable threat assessments.

                            You’re speaking about open carry folks here, right?

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                          • jr,
                            when someone points a gun at you and tells you to “move along home now” — yeah, that’s a threat. Do I really need to find news articles about the Open Carry Militia (not its real name) right down the street from me? They are out to intimidate drug dealers, in the main.

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                      • In many cases people do loudly demonstrate their intent to do harm before doing so. This is in domestic violence cases, which make up a lot of the violence in the us. The abusers threaten for a long time, often escalating before the final act of violence.

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                        • OK. Tell me what that has to do with open carry.

                          I am really not trying to be unreasonable here. Show me some evidence that open carry is responsible for a significant number of gun crimes and I will support laws restricting it. Until then, and you can call me crazy, maybe we should focus our efforts on getting guns out of the hands of criminals.

                          I am happy to be proven wrong, but the focus on open carry seems almost entirely preoccupied with cracking down on people who dare to flaunt something that other people think should be barely tolerated, if at all.

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                          • I was just responding directly to this point you made
                            “People who want to do other people harm generally don’t telegraph their intent.”

                            That just isn’t true. People who commit violence in relationships, the hardcore types, threaten loudly and long, often with guns far before they act out. Lots of violent people do telegraph their intent.

                            I wasn’t speaking to open carry and i won’t muddy the waters with my views on that here.

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                        • This is where we bring up stuff like Castle Rock vs. Gonzales (and maybe Warren vs. District of Columbia and perhaps even DeShaney v. Winnebago County).

                          The government has officially said “we are not obliged to protect you”.

                          So when “The abusers threaten for a long time, often escalating before the final act of violence.”, the question is “should the threatened victim be allowed to arm him or herself?”

                          If the answer is “I don’t want the threatener to be armed!”, that’s all well and good. But it’s not the question.

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                  • Where else in the developed world do people feel the need to carry around AR-15s on day to day activities? Which of America’a peers feel the same way?

                    As far as I can tell, the answer is no one or nearly no one. Maybe Israel.

                    I don’t understand why we should normalize the Jim Cooleys of the world and their worldview or be totes cool with them. Just cause it lets glibertarians and right-wingers say “suck it liberals”?

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            • Where did JR stipulate that he’s a loon and a fool? There you going imaging what people said again. Maybe you can provide a quote?

              Besides how does safely openly carrying a firearm pose a danger to others, except maybe in their imagination?.

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              • notme:
                Where did JR stipulate that he’s a loon and a fool?There you going imaging what people said again. Maybe you can provide a quote?

                Right here:

                j r: The open carry folks are loons and fools, but they’re not the ones responsible for the gun crime.

                As for the threat, when a crazy idiot decides to advertise that they can kill you at any time for any reason or no reason, I think it’s pretty sensible to be threatened. This obviously doesn’t apply to every open carry situation, but it sure does when they show up at a protest or just wander around the drug store with it.

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                • Wow you finally found a quote instead of imagining one.

                  So a person in a car next to you implies that they can run you over and kill you? Maybe only in your fevered imagination. A person with a gun slung over their shoulder and which isn’t pointed at anyone isn’t a threat.

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                  • On two occasions, you defended employers discriminating against black job applicants in the absence of any evidence that those specific applicants committed a crime. First time:

                    notme:
                    Exactly, if you can’t vet folks then don’t take the chance of hiring them. I guess that’s a negative liberals didn’t account for.

                    Second time:

                    notme: Employers don’t owe back people a job. If they choose to put themselves at a competitive disadvantage that’s not the employer’s problem.

                    In both instances, to be clear, you were responding to posters talking about an increase in discrimination against black applicants following the implementation of “ban the box” policies. If defending employers who discriminate against black applicants simply on the assumption that they’re criminals, and then blaming it on those applicants isn’t racist, then nothing is.

                    Following ‘s admonition yesterday, I was content to let this drop. But I’m not going to remain silent while you continue to lie about me.

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    • He isn’t breaking the law so I don’t see a problem. Just bc it offends your liberals sensibilities isn’t a good reason to sanction him. Besides, talking about “needs” doesn’t really have a place in a discussion of rights. I never hear liberals talking about a “need” for free speech.

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            • Your quote says “harmed”, but the article shows that he neither aimed at her or hit her, her dog, nor any property of hers.

              At worst, he gave her a fright, which is apparently the same thing she did to him. (Clowns? Really? A crime wave of clowns… I think we can safely say that isn’t a representative situation widely applicable.)

              No one was actually harmed. That’s the best example you’ve got? A man on his own property, in an area experiencing an actual threat, with no injuries to either side?

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              • At worst, he gave her a fright,

                He violated her rights, which is the definition of “harm” in rightsese, by unjustly threatening her with physical violence.

                which is apparently the same thing she did to him.

                No, she didn’t “give” him a fright. He was frightened, tho: “According to the citation, Tingle said he was scared for his family because of recent criminal activities involving clowns.” You’re trying to equate the perception of two “wrongs” – one rational and justified, one irrational and effing crazy – on the grounds that both people felt equally afraid!

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                • “unjustly threatening her ”

                  The next quoted portion disproves the characterization “unjustly”. Past actions can only be judged on the basis of the information known by the person at the time. He was frightened, his fright had a valid basis, his reaction was appropriate (read: “justified”) to the perceived threat.

                  “Rightsese” ??? Are you reading out of an obscure dictionary or just making things up? “Harm” has a meaning: http://www.merriam-webster.com/dictionary/harm

                  Read them all, even the synonyms, and you won’t find “frightened” in there anywhere. No harm was inflicted on either. At best, you can try to argue for some version of “emotional pain and suffering” based on the fear, but that’s a subjective measure based strictly on the fear actually experienced, not its objective validity, which means both have equal claim to it. Your argument thus fails both ways.

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                  • One party was frightened by clowns and confused a dog-walking woman wearing an afghan with one of those evil things, and experienced a real fright!

                    The other party was walking her dog when a person fired a round from a rifle with the express intent of giving her a real fright!

                    One person was harmed, the other is a lunatic.

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          • Can we count the people shot by police in open carry states because they had a gun?

            Is open carry only a thing until the police decide to arrest you, in which case it because a justification for you getting shot?

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            • Has this happened? Like, serious question. The only one I can think of that comes close is the guy in MN who was shot while reaching for his wallet after informing the officer he had a permit & was armed.

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              • All the time.

                Tamir Rice? Ohio’s open carry. The justification for his shooting was the fact that he was holding a gun (well, toy gun). That was sufficient.

                Oh hey, another one — John Crawford, shot in a Walmart while holding an air rifle.

                We can’t go a week here without the cops shooting someone, usually black, with the justification of “He had a weapon”.

                How can you have “open carry” — how can it be a real thing — when open carrying can get you shot by the police?

                I don’t even….look, you know this. People get shot by cops all the time for having a gun in their hands, for having a gun in their holster, for possibly having a gun in their car, for having a gun-shaped glove lying in suspicious proximity…..

                For all the screaming about the naughty liberals and their secret plans hidden behind seemingly simply regulations, you’d think the guns-rights folks would be far more concerned with the fact that, unless your skin is pasty, carrying a gun just means police have a built-in excuse if anything happens.

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                • Sorry, you are right. I was thinking about open carry activists, etc.

                  And to be fair, lots of gun rights activists do have an issue with the fact that melanin enhanced people can’t open carry, either because the police will shoot them, or some other person will make a 911 call that sounds very bad (both Tamir Rice & John Crawford were killed in large part thanks to a 911 call that was either hysterical (Crawford) or was not properly conveyed to the police (Tamir)).

                  To further your point, I’ve heard many stories of white people openly carrying, or carrying concealed and being noticed, who are then reported as “a man with a gun”. They all got to tell their story after their encounter with the police.

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                  • To further your point, I’ve heard many stories of white people openly carrying, or carrying concealed and being noticed, who are then reported as “a man with a gun”. They all got to tell their story after their encounter with the police.

                    But, of course, even being questioned by police for carrying a gun is a violation of basic rights. :)

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                  • “And to be fair, lots of gun rights activists do have an issue with the fact that melanin enhanced people can’t open carry”
                    Really?
                    Seriously, this isn’t snark. The NRA has an appalling history of silence in cases where the exact same situation race-reversed would have thousands protesting. Even on this site, which for the ‘tubes is a bastion of peace and freedom, even in this thread, the usual suspects are lining up in formation(*) to give the usual apologetics.
                    I’m trying to think of a single example where an open-carry advocate spoke up about racial disparities, even in the immediate aftermath of one of the recent tragedies. And I can’t.
                    And that ties in to the OP. If they actually cared about community, or consensus, or reaching out – they would.

                    (*) It’s not a very good formation, mind you – despite all the promises, the militia doesn’t do enough drilling on the village green to be well-regulated anymore. Unlike the above, this was snark.

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                    • First, let’s remember that the NRA doesn’t speak for all gun owners. There are something like 40M gun owners, and the NRA has 5M members. Additionally, a good % of that 5M are lifetime members, who may have become lifetime members back before the NRA started losing it’s damn mind, and are not happy with the direction it’s taken.

                      Additionally, the NRA, even if it wasn’t off the rails in many ways, has backed itself into something of a corner with regard to police, in that it aligned itself pretty tightly with police interests long before police shootings started to get the level of public scrutiny they have in the past few years. I’d love it if they put some more distance between themselves and LE, but I understand that doing so would cost them dearly.

                      As to your question, remember my stance on police violence. Most of the gun owners I know and talk to share a similar view (largely because Doubting Thomas’ like us are not very welcome among people who bleed blue). So I undoubtedly have a selection bias at play, but I know a lot of gun owners, and the ones that strongly believe in gun rights have serious concerns with how the police treat minority gun owners who are lawful. The deaths of John Crawford & Philando Castile shook a lot of them. Before that, there was the case of Erik Scott in Las Vegas.

                      Also, the circumstances around Scott, Crawford, & Rice are troubling because it’s pretty clear from these cases that while the police over-reacted*, a big part of the police reaction for the last two was due to information from a 911 caller. In the Crawford case, we have video evidence from store cameras that the 911 caller was outright lying, but no such evidence exists for Rice (although since the caller did tell 911 that he thought the gun was probably fake, I’m willing to believe the caller did not want to illicit an extreme response from the police). Couple that with talking heads telling people to call the police with reports of “a man with a gun”, no matter what that person is doing, and you got a lot of gun owners questioning a lot of long held beliefs regarding the ‘rightness’ of police shooting a person with a gun.

                      Which is why you don’t hear a lot yet from that crowd unless you sit down and talk to them, because they are realigning their thinking, and after so many years of thinking one way, you don’t just flip a switch.

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                • Tamir Rice? Ohio’s open carry. The justification for his shooting was the fact that he was holding a gun (well, toy gun). That was sufficient.

                  Wrong. The cops were told by the 911 dispatch that there was a report of someone with a gun who was pointing it at people. That is assault not open carry. Very different things

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                              • They wouldn’t need a sound recording, they’d just need a video that shows the cops shooting the kid before they could say “drop the gun” and a person could reasonably be expected to hear and comply.

                                How long before the car stopping was there before the kid was shot?

                                Short enough that the defense in the trial relied heavily on stills rather than on video?

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                                      • THey said no commands given.

                                        The video showed such a rapid sequence of events that there is no plausible scenario in which the command was given and Rice was given an opportunity to comply.

                                        Weigh all that against testimony of the shooter… who has a VERY vested interest in one particular narrative.

                                        See? I can make a case. What’s yours? “Because the cop said so”? Statist.

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                                        • Back in the 90’s, Rob Liefeld was the big thing. His art was atrocious, of course, and he was a horrid writer… but he captured a special something with his atrocious art that made him popular enough to mock relentlessly.

                                          Anyway, one of his go-to action shots was to show people in motion of some sort while giving a speech. Like, jumping out of a tree to hit someone, jumping off of a roof to hit someone, jumping from the ground into the air to punch someone, that sort of thing.

                                          Well, he got mocked for the speeches. They weren’t speeches like “AAAAARGH” or “YAAAAAAA” or “Hulk Smash!” or the like, but “I will revenge my father’s honor by attacking you for what you have done!” as the guy falls 12 feet.

                                          Like, dude, there’s only so many seconds of air time between you and him and you have enough time for “I will rev” before you get there.

                                          Anyway.

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                                          • I mentioned once before that we now have research on how long the brain takea to process auditory input AND how long the body takes to respond to brain commands. There is a range but my understanding is that children can take as long as 7 seconds to get their body to “listen”. Now maybe that is for a 7-year-old and not a 12-year-old. And there is a range, with some people being faster than others. But IF a command was given, it’s quite possible Rice was literally incapable of following it in the time alotted.

                                            It’d be nice if this research were part of police training and incorporated into policy. Absent an imminent threat, maintain distance and allow X seconds for compliance. Something like that.

                                            I said the same thing in the Michael Brown case. Why roll up hot? Park 10 yards away and use your bullhorn to give a command. Wait a few seconds. What’s the rush? It’s not like he had a hostage. I mean, Jesus, a little self-control and a 12-year-old has a shot at a bar mitzvah.

                                            “Maybe if Rice showed better self-control…!”

                                            Yes, let’s expect more from children than “trained” adults with authority to kill.

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                                            • “Absent an imminent threat…”

                                              I’m curious about this phrasing. On this thread already “open carry in a public space” has been defined by at least one poster as inherently “threatening”. In the Tamir Rice case, I hear Tamir actually pointed the weapon in the direction of the cop upon his arrival. Given that the officer did not know Rice’s age or that the weapon wasn’t an actual firearm, that boils down to “suspect is pointing a gun at me”… which is about as imminent a threat as can possibly be imagined.

                                              You imply that the officer’s training or judgement was deficient, but that is an unsupported assertion. He responded appropriately in accordance with the information he had at the time. You cannot reasonably expect someone who deals with violent criminals on a regular basis to grant them the first shot when all available indicators say they will take it, injuring or killing the officer involved. It is one thing to expect that our police be heroes, it is another thing entirely to demand that they be martyrs.

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                                                • I took a look, all I can tell is his right arm looked like it was going up before he got shot (and the left arm wasn’t, as it would be for a “hands up” posture). At that low detail I can’t even guess if he was reaching for or holding anything in that hand. Given the angle, I’m not even sure the cop could actually see the hand either.

                                                  There definitely wasn’t time for any yelled instructions, much less compliance. That said, the car door did open before the shot, so the car was stopped.

                                                  It’s a tragic misunderstanding. The cause though lies primarily with the miscommunication en route to the scene, not the realities of split-second response to ambiguous situations, not by Tamir or by the cop. This one got screwed up by the dispatcher, but both sides of the usual debate seem to be fixated on the people in the video. That’s just vividness bias (and/or confirmation bias for those who made up their minds before even looking into the facts).

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                                                  • No this is police escalating a situation which, in any sane world, would not have ended in a child’s death.

                                                    Within a few seconds of aggressively driving up on Rice he was shot by a cop who should never have been on the force. But his hand may (may!) have raised slightly, thereby justifying his death.

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                                                  • I had a comment get eaten that dealt with that very issue.

                                                    Dispatch fucked up. But why isn’t it customary (or, if it is customary, why didn’t this cop) ask for more identifying info? If you are sent to a scene with no more knowledge than “black male with a gun”… how useful is that? Wouldn’t you want to know approximate age? Height? Build? Type of weapon? Not only for identification purposes but also to make a tactical approach? I would think you’d approach a tall, muscular 30-year-old armed to the teeth differently than a short, skinny pre-teen who is probably holding a pop gun. So why didn’t dispatch offer this? And why didn’t the cop ask for it?

                                                    Is “black male with a gun” sufficient? It increasingly seems so.

                                                    You jump to the point of discussing heat-of-the-moment snap decisions. But when did the heat-of-the-moment begin? Why couldn’t the cops have kept a distance that would have greatly reduced their risk and used their bullhorn to engage Rice? Was he holding people hostage? Was there a crowd of people in immediate harm’s way? Nothing we’ve seen suggests that.

                                                    So, yes, there seem to have been a series of missteps along the way. None of which I’ll attach active, intentional animus to (racial or otherwise). But the vast majority of these were committed by the police. And yet… the court system tells us nothing wrong happened here? How can that be? How many “tragic misunderstandings” do the cops get?

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                                              • I’ve pointed out that a number of dead bodies say the police find open carry in a public space inherently threatening, even when it’s a 12 year old.

                                                I mean “he’s got a gun” was literally their justification, except for the times it was “I thought he had a gun” or “I thought he was going for a gun” or “he might have had a gun in them illegal cigarettes” or “See this glove here? Gun”.

                                                Which leaves us in a weird place were we’re told on one side that publicly carrying your AR-15 is just exercising your Second Amendment rights and if you find that threatening, it’s because you’re afraid of guns and what you need is to be around guns a lot more — but we’re shown police shooting people based entirely on the gun (or possibility of having one) even absent a single other threatening move.

                                                Like the poor sap who had a gun he planned to buy at a Walmart, or the guy who had the misfortune of reaching for his wallet like the officer asked….

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                                                • “I’ve pointed out that a number of dead bodies say the police find open carry in a public space inherently threatening”

                                                  You’ve ignored the operative difference. The civilian open carrying in public enjoys the presumption of innocence from other civilians, both because he hasn’t shown hostile intent and because you, as a fellow civilian, are not an automatic target for violence by him. The criminal suspect, on the other hand, is by definition under the presumption of hostile intent toward all and the officer automatically a target for violence by criminals.

                                                  Intent and motive matter. A total stranger has little reason to hurt random other civilians. Even mass shooters are usually targeting people they know and who know them. A criminal though always has motive to harm a cop trying to make the arrest. So a civilian-civilian encounter operates under a fundamentally different risk calculation than a cop-suspect encounter. The same expectations can’t be applied to both.

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                                                  • I don’t even know where to START with how wrong that is.

                                                    Do you think everyone the police have shot under the “He had/maybe had/could have had a gun” were “hostile criminals”? Or that the police had any reason to believe so?

                                                    They’ve shot people during routine traffic stops, for obeying the officer’s instructions. They’ve shot people because OTHER people deemed them “hostile” because they simply had a gun.

                                                    Your entire thesis requires the ability to mentally divine, at a class, who is a “hostile criminal” and who is not — or granting police the belief that EVERYONE they encounter is a hostile criminal.

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                                                    • Where to start? Perhaps “how” would have been a better question because you not only failed to address the argument, you didn’t even demonstrate that you understand it.

                                                      1. If the police are called in any official capacity then by definition the other party is a criminal suspect.

                                                      2. A criminal suspect by definition is presumed hostile to the person conducting their arrest. The motive to harm an officer is a given.

                                                      3.a Assessing threat on the fly accurately is precisely the reason people keep demanding more training for officers, is it not? Which means that they implicitly expect exactly this capability of any officer. You’ve trapped yourself on the horns of a dilemma: if you insist that this isn’t a possible expectation of an officer you’ve invalidated the very solution suggested, If you accept that it is possible you’ve also accepted that such a well trained officer is a reliable authority as to the response appropriate given what he knows at the time.

                                                      3.b By definition anyone a cop is arresting is being treated as a criminal. Given that gun rights are being discussed I’m going to assume you’re at least somewhat familiar with the numbers involving officers shot with their own weapon after they tried to handle the arrest with physical force alone. That tactic gets cops killed. According to the courts themselves, a police officer’s first responsibility is self defense, second to put the suspect in front of a jury, thirdly protection of life, and fourthly protection of property (technically speaking, those last two are actually optional). Quite literally, the well-being of the suspect is legally secondary to minimizing risk to the officer while taking the suspect(s) into custody. You can disagree with whether it should be that way (I certainly disagree with it), but that is the way the system is deliberately designed to work. More importantly, that’s the way that tends to keep those rookie officers prone to mistakes alive long enough to learn from experience and then make fewer mistakes (which minimizes the risk for both parties).

                                                      4. “Everyone the police shot…” is a blatant argument ad absurdum. Yes, they have every right to respond to hostility with whatever force seems necessary, yes they have every reason to treat any ambiguity in the situation as a probable threat, no, the situation won’t always turn out to have been as objectively threatening as it subjectively seemed in the moment.

                                                      5. Police aren’t perfect. They are human, not divine, and mistakes will happen and some small percentage of those mistakes will end in the death of a suspect, an officer, a bystander, or some combination of all of the above. Most officers will go the entire career without ever firing a shot, so it’s a bit much to expect perfection when that first time finally comes along. Sad to say, but the average violent criminal has far more practice at initiating and winning violent confrontations than the average cop does. Giving the perp the first move just places the officer at an even greater disadvantage. For obvious reasons, our system attempts to give our officers what advantages it can. More practically, being a little rougher than turned out to be necessary usually just costs money, whereas not being forceful enough can cost the officer’s life.

                                                      6. All solutions are imperfect, this one merely the least so of those tried thus far. Medical malpractice and mistakes cost far more lives annually (black and otherwise) than police mistakes, yet I haven’t heard anyone demand the removal of doctors from their communities. Likewise, legal gun owners have one of the lowest crime rates of any demographic in America. So if you are afraid of cops or open carry you are demonstrably allowing your emotion to overrule your reason and ignoring the many many people more likely to harm to than they. If so, you have no one but yourself to blame for your fear. It certainly isn’t deserved by those against whom you direct it.

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                                                        • Given cops have been trained to view EVERYONE as a potential threat, that means that the mere act of being observed by a cop changes your state from “citizen exercising his second amendment right, only crazy people scared of guns would find that worrisome” to “potentially hostile criminal who can be shot because the presence of a gun raises his threat level to the point where the cop can’t take chances”.

                                                          Joking aside, it’s pretty funny how magic cops are in his argument.

                                                          Two people see a man with a gun. the one with the gun of his own and the badge is the one allowed to see that “as a threat”, whereas the civilian (armed or not) is apparently just being a foolish ninny if he does.

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                                                      • “1. If the police are called in any official capacity then by definition the other party is a criminal suspect.”

                                                        This gives anyone with a phone and the finger dexterity to dial 9-1-1 the ability to bestow upon anyone of their choosing the title of “criminal suspect”.

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                                                      • 1. If the police are called in any official capacity then by definition the other party is a criminal suspect

                                                        And thus a threat. It’s only by the generous willingness of the police to accept unnecessary danger that a guy walking his dog off the leash is allowed to live.

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                                                      • “I’m going to assume you’re at least somewhat familiar with the numbers involving officers shot with their own weapon after they tried to handle the arrest with physical force alone.”

                                                        I’m not. Please enlighten me.

                                                        “Quite literally, the well-being of the suspect is legally secondary to minimizing risk to the officer while taking the suspect(s) into custody. You can disagree with whether it should be that way (I certainly disagree with it), but that is the way the system is deliberately designed to work.”

                                                        You realize much of the criticism being levied is at “the system”?

                                                        “Medical malpractice and mistakes cost far more lives annually (black and otherwise) than police mistakes, yet I haven’t heard anyone demand the removal of doctors from their communities.”

                                                        What’s easier: holding doctors accountable for malpractice or cops accountable for fatal mistakes?

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                                                        • https://ucr.fbi.gov/leoka/2015/officers-feloniously-killed/felonious_topic_page_-2015

                                                          Start there. I believe people understand matters better when they do their own research.

                                                          “You realize much of the criticism being levied is at “the system”?”

                                                          Yes. Some of that criticism is valid, some is not, some of the changes proposed are potentially beneficial, some likely harmful, and some pointless. I’d be quite happy to transition to a discussion of how the system can be improved. That said, the people involved can only be judged under the standard prevailing at the time of the incident.

                                                          “What’s easier: holding doctors accountable for malpractice or cops accountable for fatal mistakes?”

                                                          Cops, without question. They receive far more public scrutiny, the investigations are usually criminal rather than civil, and the consequences when wrongdoing is found are generally much more severe than simply an increase in the perpetrator’s insurance. If medical malpractice injury and deaths routinely generated headlines and protests the way arrests gone bad do we would be having a very different national conversation right now.

                                                          It truly boggles me that racism in trauma response, racism in pain management, and the generally inferior quality of medical care in predominantly black communities isn’t treated as the more significant issue.

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                                                          • I’d be quite happy to transition to a discussion of how the system can be improved.

                                                            The first step in doing so is to acknowledge that 1) violence committed by the police was inappropriate, regardless of the standards or situation prevailing at the time, and 2) that the public has a right to know everything that factors into an act of violence by the police that the public calls into question.

                                                            Cops, without question. They receive far more public scrutiny, the investigations are usually criminal rather than civil, and the consequences when wrongdoing is found are generally much more severe than simply an increase in the perpetrator’s insurance.

                                                            Oh, BS. Police investigations into their own are almost always obscured, officers have rights during those investigations that are not extended to common citizens, officers are rarely charged with a criminal complaint as a result of said investigations (hence they are not usually criminal rather than civil), and even if an officer is found at fault, but the DA declines to prosecute, usually the result is that the officer is fired, and any civil judgement is paid out of taxpayer money, not an insurance policy the officer pays for. And we haven’t even touched upon how a fired officer can often have the union get him his job back, and if not, he almost never loses his credentials, so he can just get a job at another department (since discipline records rarely follow an officer the way malpractice judgements can follow a doctor).

                                                            Seriously, a lot of the issues with the system of policing we have could be addressed with officer liability insurance. Officers are the ones who are TRAINED, the public is not, hence the officers have a greater responsibility and obligation to the public to be as careful and cautious as possible. This is something that a minority of officers either lose sight of, or never learn, and the problem with the system isn’t that such officers exist, it’s that the system does nothing to weed them out, and instead actively protects them, thus giving unstated support to such behavior.

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                                                  • A cop makes a bad judgment and blames BLM. Well isn’t that a convenient target for her blame. It wasn’t her own fault it was the fault of group that just happens to be unpopular with cops. Is it possible her explanation is just a little convenient for advancing a political point.

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                                                    • “A black man makes a bad judgment and blames the cops. Well isn’t that a convenient target for his blame? It wasn’t his own fault, it was the fault of a group that just happens to be unpopular with black men. Is it possible his explanation is just a little convenient for advancing a political point?”

                                                      Rule of thumb, don’t bother advancing an argument that undercuts your own side as bad or worse than your opponent. It’s not exactly a coincidence that BLM went from demanding mandatory vest cams for officers to demanding no vest cams after the precincts that mandated them saw a 93% drop in complaints against officers. Sure, it probably forced a few bad apples to clean up their act, but those numbers strongly suggest that it also stopped a lot of fraudulent complaints that were being made against officers. It’s hard to maintain public outrage against cops when they have video proof they didn’t do wrong, but actually were assaulted by violent suspects resisting lawful arrest.

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                                                      • “It’s not exactly a coincidence that BLM went from demanding mandatory vest cams for officers to demanding no vest cams after the precincts that mandated them saw a 93% drop in complaints against officers.”

                                                        Cite?

                                                        Also, you can’t just swap out “cop” with “black man”. One of those groups is an arm of the government given wide latitude with the use of force. The other… isn’t. If a black man… or damn near any person… has a “tragic misunderstanding” and shoots someone, he’s almost assuredly going to jail. Or will at least stand trial to determine if he ought to.

                                                        When cops make those same mistakes, they rarely face charges and even more rarely go to jail.

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                                                  • You also clearly missed my point.

                                                    I’m not saying cops never risk their lives.

                                                    But you can’t have it both ways. You can’t say, “We have to shoot first and ask questions later because our lives are at risk.”

                                                    No. Shooting first and asking questions SUBSTANTIALLY REDUCES THE (ALREADY EXAGGERATED) risk officers face.

                                                    Either you are willing to put your life on the line or you aren’t. It is either/or. If you actively avoid putting your life on the line, your justification for doing so can’t be because your life was on the line.

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                                        • So witnesses say something different, that doesn’t make it the truth despite what you seem to think. We know witnesses in the Eric Brown case lied about the police’s actions.

                                          A statist? Oh, that really hurts. I may cry. Boo hoo.

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  6. My biggest problem with this line of inquiry is that it rests on assertions: the assertion that we have an aversion to talk about collective responsibility and the assertion that rights and responsibilities ought to coexist in the same political and ethical framework. And I am not seeing much actual support for either.

    As noted in my earlier piece, there seems to be an aversion to speaking about collective responsibility or our duty to other citizens here in the United States.

    If this is true, then why I am continually encountering arguments doing the very thing to which you claim we have an aversion? I consistently see arguments from law and order folks/security hawks that the collective responsibility of combating crime and securing national security ought to temper how seriously we take individual privacy and procedural rights. I consistently see social conservatives arguing that our collective moral responsibilities ought to supersede LGBT and women’s rights. And I consistently see progressives that our collective social responsibilities ought to trump individual economic rights. (And no, this list is not meant to be exhaustive)

    This is merely an example of how rights talk—stark and unyielding rights talk in this case—leads to a dreary, pessimistic, and anti-social landscape in which we only ever “speak of what is most important to us in terms of rights.”

    And as Jason pointed out before, I believe on your earlier post, if you want to argue that rights and responsibilities are or ought to be natural complements, then you are going to have to do the work to show that. So, yes when you say things like the bit above, I have a tendency to reflexive push back against this assertion, because this sort of talk is almost always a preface to a discussion of how and why my rights ought to be proscribed for some greater good.

    By way of example, is anyone who is supportive of same sex marriage or LGBT rights more broadly take the social conservative seriously when he makes an argument that the individual right to be in a relationship with whomever he or she wants is fine, but that we ought to be thinking about the social landscape, things like the sanctity of marriage or the importance of keeping children safe, when we determine how far those rights ought to extend? It’s pretty clear that the attempt to seed the conversation with concerns about families and the welfare of children is an attempt to put the defenders of individual rights on their back feet before the conversation even begins.

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    • It might be that I didn’t do the work I needed to in my last piece but I thought it was a clear that the talk of rights and responsibilities both coexist in other nation’s constitutions and coexisted as a “given” in the early days of the republic. Couldn’t I just put you on the defensive and ask you the reverse? Namely, what support do you have for thinking there’s a separation?

      The problem I have with those who put forth the rhetoric of collective responsibility is that they are usually doing so in a way in which they want some thing, some law or policy codified. The point being, that collective responsibility one way or the other isn’t a bad thing – it’s what we should be talking and arguing about – but that if the end goal is some concrete, often premature change to parchment for the sake of impatience, I’m not going to be on board.

      Regarding your last point, I’m not sure there’s much to say that’ll quell your uneasiness. The person who doesn’t take the social conservative seriously is the problem I’m talking about. Because it’s not simply a matter of rights for the LGBT community, they ought to be entertaining these outside-the-laws conversations as well. My position – not at all to toot my own horn – indicts everyone. The fact that the individual rights person is put back on their toes with talk like this doesn’t mean the individual rights person has no ground to stand on… seems to me like a personal problem then a universal one. I have no problem talking about individual rights even when who I’m engaging with is setting the terms. But maybe I misread that last point? Sorry if I did.

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      • This goes to a more fundamental issue:the lack of a concept of commonwealth in the American Constitutional framework.

        There are no inherent duties towards the commonwealth in our system. There are not even communal rights in the constitution. Only individual rights, in tension with each other.

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        • There are “powers reserved to the States respectively, or to the people” and “other[ rights] retained by the people”. I read these, especially the later, as advice that the Constitution be updated from time to time as conflicts are discovered. This, needless to say, is not the American habit. The Reconstruction amendments and the 19th, 23rd, and 24th are the only ones I would really count as such updates.

          I think the Constitution would be much improved by a (non-exhaustive) list of powers reserved to either the States or the people. If nothing else, it would force people to abandon perpetual “states rights” debates that serve as proxies for other things.

          But you’re right that there’s no discussion of “duties” anywhere, and I’m glad of it. Such talk smacks of the draft and things like it.

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      • Couldn’t I just put you on the defensive and ask you the reverse? Namely, what support do you have for thinking there’s a separation?

        I guess you could, but that wouldn’t make much sense. Generally, the person positing a connection between two things has the burden of offering some evidence for that connection.

        The person who doesn’t take the social conservative seriously is the problem I’m talking about. Because it’s not simply a matter of rights for the LGBT community, they ought to be entertaining these outside-the-laws conversations as well.

        This tells me that we may just have irreconcilable differences, because I don’t think the burden lies on the individual to justify his rights against the prejudices and fears of others.

        I am perfectly happy to have conversations about the nature and form of individuals’ responsibilities to each other and how that might manifest in the form of collective responsibilities. My problem, as I said, is that in trying to tie this to rights, you are invariably asserting a specious connection. Rights don’t abrogate responsibilities anymore than gay marriage is a threat to the family or my right to privacy is a threat to national security. And just about the only time anyone tries to make those arguments is in the course of trying to severely limit rights.

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    • By way of example, is anyone who is supportive of same sex marriage or LGBT rights more broadly take the social conservative seriously when he makes an argument that the individual right to be in a relationship with whomever he or she wants is fine, but that we ought to be thinking about the social landscape, things like the sanctity of marriage or the importance of keeping children safe, when we determine how far those rights ought to extend?

      Okay, first of all, I really wish people would stop using the phrase ‘sanctity of marriage’, because ‘sanctity’ has approximately a dozen different concept there. Not only has *this* country had secular marriages forever, but marriages have never, ever, been regarded as only religious in the Western world(1), so do not have ‘sanctity’ in that sense.

      But, anyway, as someone who *does* think about the *importance* of marriage and the importance of keeping children safe, we *should* think about those things with regard to same sex marriage and LGBT rights. AND WE DID.

      The problem was, from the *very beginning*, when the idea of gay marriage first showed up in the public site, let’s call it 1995, there was no possible way that allowing people from marrying who they wanted to marry would harm marriage. In fact, as I have argued before, restricting gay marriage that *actually did* harm marriage.

      That premise never even made sense to start with. ‘Why does could gay marriage cause harm?’ ‘Because God doesn’t like gay stuff!’ There never was any actual chain of logic that could result in any sort of harm.

      And I as I’ve said before, most liberals would have been fine in 1995 if gay *adoption* had waited a decade or so until we saw how it worked…there already were plenty of children being raised by gay couples to run the experiment. (Perhaps allowing gay *spousal* adoption so people could still adopt their step-children, but disallowing a couple to adopt an unrelated child.)

      See, the problem with your example is that social conservative *didn’t actually listen to any facts* about how what the other people want *did not cause any harm*. In fact, *they still aren’t*.

      Whereas gun actually *do* result in a lot of harm. Now, it is possible that gun regulation would cause *more* harm, but a) It doesn’t seem to in other places, b) the only way to test that would be to, you know, do it, and c) gun advocates are *really determined* to make sure it’s very hard to even study this thing.

      One of the sides here is *actually* concerned about collective moral responsibilities. One of the sides, not so much.

      1) The requirement that people get married *in front of* a priest was a power grab by the church, which was sick of people marrying ‘in secret’…because it *used* to be that people just said they were married, because that is how marriage always has, and still does, work. (This is why we currently require *witnesses*.) And even then, people were still married, they just weren’t *recognized* as married by the church.

      Marriage is, conceptually, not what people think it is, it’s not some that happens via the power of God or the state or anything. Marriage is something that two people agree to, and they *are* married. (It is, if you will, a verbal contract.) The rest of it is formally declaring it to the world. A priest does not *make* two people married, he *pronounces* them married, and ‘pronounce’ just means ‘formally announces’. He is stating aloud *what he just witnessed*, not making it happen. (Or, if you want to be technical, two people are ‘married’, in the philosophical sense, the moment they say their vows, not when they are ‘pronounced’ married.)

      There is not only no such thing as ‘sanctity of marriage’ in the religious sense, there literally has never been such a thing. The church *eventually* came up with a bunch of trappings for their self-assigned duty of ‘watching people get married’, and a lot of people seem to *now* think that’s some holy ceremony that is God-ordained and has always existed and used to be the only way to get married…but now we *now* ‘allow’ people to get married outside of that…but in reality this is a complete misunderstanding of the history of the concept of marriage.

      The fact a lot of social conservatives *didn’t understand* that a lot of gay people were *already* married, and all *they* were doing was demanding the government (and, in theory, society) refuse to recognize their marriage, makes them unique unqualified to even talk about this issue. Same with the completely idiotic idea of ‘civil unions’, which meant the *government* was going to call someone’s marriage something else.

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      • FWIW, there were several US Churches that happily married gay couples well before the State would recognize it.

        Unsurprisingly, no one got all upset that their religious ceremonies weren’t being recognized by the State, and no one got all angry that their religious freedoms were being trampled.

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  7. I think Saul touches on the unspoken issue that there are a shockingly large number of people in America who have a deeply disturbed and irrational relationship to guns.
    The guy in that piece, for example, who is unfortunately not an isolated case.

    While there are plenty of sober hunters and target shooting enthusiasts, they aren’t really the ones provoking the debate.

    Its the 3% gun nuts who insist on carrying rifles to WalMart or pistols to Starbucks that I focus on.

    Their relationship towards guns reflects a seriously damaged and unhealthy attitude towards us, their fellow citizens. All the fevered talk of (nonexistent) rampant crime, the hysterical dark warnings of (imaginary) tyranny and revolution…

    This isn’t about guns is it?

    What the 3% are talking about is how they view me, and you, and the rest of the American citizenry. We are the swarms of looters and criminals and traitors that they intend to focus their guns on.

    When someone looks out over American society and prepares for war and insurrection, its tough to have a calm reasoned discussion about Burkean restraint.

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    • Has gun ownership been on a particular trend? (Increasing, decreasing, more or less staying the same?)

      Has crime been on a particular trend? (Increasing, decreasing, more or less staying the same?)

      Is there any reason to believe that these are connected if they aren’t both doing the exact same thing?

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        • No one has proven that. But violent crime is decreasing despite increased firearms ownership*, which gives lie to the idea that more ownership will lead to more crime.

          *numbers on how many new firearm owning households there are compared to how many current owners are just adding to the safe are sketchy at best. I wouldn’t answer a pollster honestly about my firearms, and I know a lot of other people feel the same way.

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            • I’m afraid they see me no longer as a fellow citizen but an enemy.

              Now *THIS* is where the meat of the argument is.

              So I’m guessing that you see “let’s disarm these people” as the most reasonable course of action?

              Personally, I think that this will confirm their suspicions of you.

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                  • The problem here is that their argument casts doubt on their commitment to continue to not hurt anybody. “It’s totally safe for me to own a gun and if you disagree, I’ll shoot you with it!” is an argument that refutes itself.

                    I don’t think it’s precisely the message they’re trying to send, but it’s close enough that it’s hardly surprising that it’s the message that a lot of people receive.

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                    • “It’s totally safe for me to own a gun and if you disagree, I’ll shoot you with it!”

                      Except that isn’t even close to the message.

                      The message is that the only real reason you want to disarm a person (who has not demonstrated themselves to be a threat) is so that agents of the state won’t be opposed by lethal force when they bring violence against peaceful people with whom they have a political disagreement.

                      In short, it’s not that gun owners want to be able to shoot people they disagree with, it’s that they want to make sure that if those people they disagree with try to use the power of the state to silence them, the police will risk injury or death in the process.

                      Yes, it’s extreme and a bit paranoid. Still, there is a logic to it. It’s like a bee stinger. If you don’t bother the bee, it won’t sting you. But if you wanted to remove all the bee stingers (by some act of God), then one has to assume it’s because you want to harm the bees without risk.

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                      • I disagree.

                        It’s not the message that most of them intend to send [1], but a lot of the time the message one intends to send is not the message the listener hears. And, really, I don’t think liberal listeners who hear this message are being particularly crazy or wrong-headed when they do so–even if we exclude the really crazy folks, there’s a lot of overlap between people who think they need guns to protect themselves against “tyranny” and people who say Obamacare or gay marriage are “tyranny”.

                        [1] Though I absolutely believe that there’s a substantial enough minority of people who do believe it to worry me a bit.

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                        • If the message I believe I’m sending is, “I am not interested in harming anyone who isn’t trying to harm me.”, and the message you are hearing is “I want to be able to harm you if I disagree with you.”, perhaps we have a fundamental disconnect we need to address.

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                            • Depends on the person, but generally, folks on the right don’t ascribe much harm to fear. Physical violence, yes. Economic harm, certainly. Psychological harm gets into wibbly wobbly territory because it’s hard to objectively quantify.

                              So if a person says, “you frighten me”, and I am not trying to frighten that person, or anyone in particular*, that’s a problem, because it requires person A to conform to person B’s prejudices to an unreasonable degree.

                              *As a big bald guy, I get this a lot, especially if I’m in a foul mood.

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                              • I think you are vastly understating the way many on the right talk about fear, especially when the context is the use of lethal force in self-defense. This has mostly been limited to police, but not entirely.

                                However, there certainly are people on the right who argue that legal gay marriage constitutes harm, or that the individual health insurance mandate constitutes harm, often using overheated language. The main reason to assume that they aren’t arguing that Obamacare or Obergefell constitute reasons to start shooting up the place is that of charity–and I think it’s correct at least 99 times out of 100. But charity is in pretty short supply when these conversations happen.

                                This leaves aside the ones I describe as “the real crazies”, who are, I think, a lot more influential, and perhaps more numerous, than a lot of reasonable center-right people believe, even after the rise of Trump.

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                                • First, in case it isn’t abundantly clear, I have serious concerns over police use of force in response to perceived, rather than realized threats. Likewise, I fully support gay marriage and never found arguments against worth a damn.

                                  That said, in both police violence and gay marriage, the arguments attempted to articulate manifest harms that they were afraid of. Police do get targeted and killed simply because they are police and have a social, if not legal, obligation to engage with dangerous elements. Gay marriage is perceived as an existential threat to an important social institution and support for that threat has grown. As such, it isn’t fear itself that is the issue, but a manifest threat (however unlikely it may be).

                                  The fact that I own a firearm, or have a carry permit, should be of no concern to you. I have neither said not done nothing that could even remotely be construed as a threat toward you. So if you were to demand that the state strip me of my arms because you were afraid I might, someday, for some reason you can’t really articulate, pose a threat to you over a social or political disagreement, I’d have to wonder if you need to seek professional help.

                                  PS You may have noticed I don’t argue much for open carry. While I do agree with that a person who is not actively threatening people should not be seen as a threat (Americans are increasingly bad at risk assessment), I have to give some ground to context. Out in the wilderness or on the farm/ranch, people openly carrying a firearm is no cause for alarm. In urban areas, given indiscriminate gang shootings and nutjobs on a spree, I can understand why open carry causes anxiety.

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                                  • So, speaking of disconnects between messages sent and messages received…

                                    I have no interest in stripping you of your right to own a gun, or to carry it concealed. Neither are choices I would make, but I expect that you have a much clearer understanding of your own situation than I do, and think you deserve a lot of freedom in adapting to it as I see fit. The idea that by doing so, you would pose a threat to me never crossed my mind.

                                    Are there some people who legally own guns who talk about guns and political violence in ways that make me wish that they didn’t own guns? Well, to be blunt, the answer is, “Yes,” but that wish is hardly grounds for stripping them of their First or Second Amendment rights. I’d rather ten murderers go free than send an innocent person to prison–it seems silly to draw the line at a mouthy jackass with a gun who is probably just a little too wound up in his own personal “Wolverines!” LARP.

                                    I do think, however, that these people are taking exactly the wrong tack if they want to persuade people who are ambivalent about, or opposed to, civilian gun ownership to change their minds. The drive towards gun control is heavily rooted in fears of violence, and a feeling of unsafety. A lot of gun rights advocates choose lines of argument that, either by accident or design, make people feel less safe.

                                    This seems counterproductive to me. However, “Lots of people make counterproductive arguments when they argue against gun control,” is not any sort of argument for gun control.

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                              • Following meeting my boss’s husband, she told me that their conversation about her co-workers after the party went something like this:

                                “You met Jaybird and Maribou, right?”
                                “Was that the Harley Davidson guy?”
                                “… That’s what you got out of your interaction with him?”

                                In any case, to address your point, a side that is capable of assigning moral culpability to harm and creating such things as “microaggressions” is playing this game very, very well.

                                Unfortunately, this can also be compared to the whole police officer “I was in fear for my life!” testimony given after (see 2015/2016). They’re also playing the game pretty well, of course.

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                              • And yet, significant parts of the population who aren’t big bald white guys have to do exactly this every day of their lives because if they don’t they will get at a minimum harassed and at a maximum shot to death. And most people on the right think that’s just peachy.

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                      • “It’s totally safe for me to own a gun and if you disagree, I’ll shoot you with it!”

                        Except that isn’t even close to the message.

                        The message is that the only real reason you want to disarm a person (who has not demonstrated themselves to be a threat) is so that agents of the state won’t be opposed by lethal force when they bring violence against peaceful people with whom they have a political disagreement.

                        Interestingly, from where I sit you’re both right.
                        In neither case was that the message that was intended to be sent.
                        In both cases, that was the message that was received.

                        It’s another Gossage-Vardebedian problem, and this one isn’t funny.
                        Words are being exchanged, and solemn nods are given all around – but our axioms are different enough that no real communication actually took place.
                        And that also ties into the OP. This whole process will continue as long as both sides consider the other untrustworthy. Which is difficult, because both sides – within the framework in which they work – have every right to believe that the other actually does have malice aforethought.

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        • Are you asserting that crime is decreasing because of increased gun ownership?

          Not exactly.

          I’m saying that crime numbers are independent of gun ownership numbers and people who are arguing that we need to address gun ownership in order to address “crime” haven’t shown their work.

          Because, from here, it looks like crime numbers exist completely independently of gun ownership numbers.

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          • It’s not completely independent, but it’s hopelessly intertangled.
            Also, since this is reality, we can’t run enough double-blind tests controlling for individual variables in order to establish statistical significance.
            We don’t know, and we can’t know. It’s not zero and it’s not the primary driving factor. Beyond that – eh….

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      • Has gun ownership been on a particular trend? (Increasing, decreasing, more or less staying the same?)

        IIRC, the percentage of households owning a gun has been on a steady downward trend, however the number of guns per household has been going the other way.

        In effect, gun ownership is concentrating. Fewer owners, who own a lot more guns.

        (As an anecdote, my father-in-law now owns over a dozen guns. Prior to about 10 years ago, he owned three (two rifles and a shotgun, for hunting). He’s bought exactly one gun in the last 25 years. He’s simply inherited a great many, as he’s really the only one that hunts, so everyone keeps giving him their hunting rifles and shotguns. Some of that concentration revolves around the decreasing number of hunters and not over idiots with their own armories For When the Revolution Comes).

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        • I’ve not seen any numbers on household percentages but only gun sales numbers and how they’re through the roof.

          If this primarily happening among people who are buying an 8th or 9th gun, I’m not sure why the whole gun ownership thing is being seen as a problem that needs addressing.

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          • Google is always your friend.

            Generally speaking gun owning households has dropped from a high in the mid 90s (a high that wasn’t that far above the 70s numbers, like a point or three) down about 10 to 15 points in the last 10 to 12 years.

            By anyone’s numbers, gun ownership by household was steady in the 70s and 80s, ticked up a hair in the early 90s, then saw a giant drop-off after.

            There’s some argument over the actual size of the drop, but not that there was a double digit drop.

            However, over this time gun sales increased. If fewer households owned guns, but more guns were sold, then clearly the people buying guns already HAD guns and wanted more guns. (Even if gun ownership was steady this would have to be true). The numbers on concentration suggest something like half the private guns in America are owned by less than 5% of the population.

            I suspect that’s one reason that some gun owners have become so extremist. Going from 50% or so to 35% or so in 12 years? Going from majority to minority is a painful process. Add in all the mass shootings and you have a situation where the minority gun owners are going to have less and less pull over the majority non-gunowners.

            Given the gun ownership rate among adults is somewhere between 1 in 4 and 1 in 3 and falling (the poor NRA has had to resort to “Gun owners don’t like to admit they have guns, so they lie to pollsters” at times).

            They’re a shrinking minority, so they’ve doubled down on gun rights absolutism because they’re afraid (rightly or wrongly) that the majority is going to disapprove of them having all those guns. Which of course leads to them stocking up on MORE guns to fight the inevitable majority, while talking about how they’ll fight the majority, which makes the majority think they’re crazy, which makes them feel more persecuted….

            It’s an ugly little spiral.

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    • the hysterical dark warnings of (imaginary) tyranny and revolution…

      This from the person who claims that if elected Trump will be a second Hitler, with repeated references to cattle cars.

      Maybe they’re carrying thier guns openly because it pisses off elitist snobs like you and Saul. You think that people with cushy office jobs like you have every right to mock “rednecks” but as soon as the people you hate stat fighting back it becomes an imminent riot.

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  8. Interesting piece but I do have a few quibbles.

    First of all, as the US was formed by many distinct cultural imigrations, the laws as written were not intended to be communal, but were intended to protect the individual from the gov’t, as shown by enumerating what the gov’t can do, along with broadly outlining what an individual’s rights were. This shows up in many areas other than the 2nd, such as our current kerfuffle over SCOTUS appt’s. In other words, to prevent any single group or region from gaining too much power. Not to provide some sort of communal aspect to society.

    Secondly, “Given our situational lack of any civic virtue that was simply taken for granted during our nation’s early years, the founders would have happily pushed through, for example, a law requiring a certain amount of time each month dedicated to training with firearms.” You are going to have to do a bit of work to show this is, as there is much work done to show that this is not necessarily the case.

    Thirdly, it is simply untrue that 2nd amendment supporters don’t support gun safety and training. Opponents of the 2nd may hate the NRA, but they have long had a comprehensive gun safety program, along with a specific childs safely program.

    As I have shown above, the desire to get where you want to go, societally, is already in place. What is left is for the proponents of bans to realize that they are the ones being disingenuous.

    This is the essential Is/Ought problem.

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    • First: Agreed. That was my entire point in the first review/piece I wrote. I am not denying that the rights were enumerated for a certain purpose and subsequently lacked any communal aspect. I’m not sure that’s contradictory to anything I said. I understand what the purpose and point of our rights focused constitution.

      Second: In my opinion, the “crisis of modernity” – if I can be dramatic for a second – is that traditional forms of societal under structures are rapidly disappearing, and that was my only point in saying that the founders would have found it necessary to pass a law given that those moderating institutions aren’t here any longer as they were back then. No church, no community, no neighborhood, etc. Of course I am taking a bit of license here in saying ‘the founders would have…’ No one really knows what they would have done.

      Third: It seems that the gun safety part of the giant that is the NRA is sort of a secondary importance. This may just be my perception, but we are more so inundated with the “taking guns away is not the answer” side of things as opposed to the gun safety part. Maybe just a matter of emphasis; I might be splitting hairs…

      And I disagree about your last point if only slightly. My reading of the early republic would make it so that both sides are being disingenuous. That is, the one’s who want to ban it and those who think their rights are reigned in by nothing and are totally absolute. Rights, as you zoom closer and closer in, are not nearly as concrete as one would think.

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      • Thanks for the reply
        The problem I have initially is that, while you agree with the idea of individual rights, you seem to take a strange step towards a communalism that is only assumed as part of the original intent of our legal basis. I don’t think that communalism is bad, per se, but that it is not a part of the base makeup of our laws. In other words there is no mechanism to create this aspect of society. And in trying to create it out of whole cloth one steps on what others conceive of as essential rights.

        As for the what the NRA is supposed to be and do, their mission is to protect the rights of gun owners. That they feel safety is important also says how much they are willing to step away from the stated mission to incorporate it. This could change drastically if there weren’t such virulent attacks on what they feel is a basic right, but as long as there is that attack, they need to expend their energy as they feel.

        As to both of ours last point, and this might be like your feeling regarding the NRA and safety, I have seen far too much camel’s-nose behavior from the anti side that any disingenuousness appears greater on that side.

        The “crisis of modernity” is, in my opinion, social structures that are being destroyed/not built fast enough. This is solely the factor of having a society that isn’t communal on a level that you would like, but rather individualistic by necessity, trying to fit so many interpretations of society together.

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          • Well, the problem with that is what one person considers a “bug” another considers a feature. The constitution provides a clear path for updating (the amendment process) but ensures that to follow this the support must be overwhelming. Right now, there is very little trust in how the other side would update to remove the “bug.”

            For instance, as I have left the left to become more libertarian, there are many things I would do that the progressives would find horrific, such as repeal the 17th, “corruption” be damned. That was a “bug” that I don’t think should ever have been fixed.

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            • I have never understood the rationale that it’s better to have senators selected in back rooms by state legislators no one knows about instead of by the people of the state.

              At least Ted Cruz had to pretend to care about me as a Texas voter. A Ted Cruz selected by part time state representatives no one knows nothing about, at the behest of who knows who? May Amaterasu deliver us.

              So what’s your rationale?

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              • I’m equally curious.
                When people get all het up over something most of us consider an obscure relic, it makes me wonder what sort of things they imagine would result.

                How would the world be a better place if legislatures selected senators?

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                • And you’re at least an amateur historian? From voters to state legislature to US Senate provides a first-rate filtering mechanism to ensure that privileged property owners’ interests will be given strong (essentially primary) consideration. (The Civil War was a power struggle between two groups of property owners, one where finance and industry dominated, one where chattel slavery dominated.) It took creation of a bunch of western states without entrenched local property owners’ interests — or at least, local property owners who couldn’t outbid the eastern powers — to to subvert that system.

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                • There’s an argument to be made that, when you’re designing a government*, you should avoid having a group of much bigger than a small village picking a single representative, on the grounds that humans can’t really deal with larger populations. Big districts create problems for rep selection on the voter side and balancing constituent interests on the rep side.

                  That gets unwieldy fast, but you can have the “villages” into larger districts for common government, with a district government about the same size as any particular village consisting of the village representatives. Then you have the district council pick a common representative in the same way** (presumably from among their own, but possibly an outsider). At that point, you’re limited only by time – you need to be able to have these cascading elections fast enough that your top level government can actually meet, while still giving people who make up the lower levels time to become acquainted with each other. I’d be surprised if you could govern more than ~10^6 people under this scheme, and it’d probably be really slow to respond to changing times. It also doesn’t account for the fact that not everyone has time to pay attention to political goings-on in great detail, but a lot of systems have trouble with that.

                  But! All that said – the original idea of the two houses was that the House of Representatives was a proxy for the people as people, and the Senate was a proxy for the people aggregated into states. If that’s what you’re trying to do, it makes sense to have the government of the state pick senators, rather than the people directly. With direct election, you just have “legislators with more (voting) power” and “legislators with less (voting) power”, with the more-power group in theory being longer term as well. The result is that state-ness isn’t encouraged – everyone’s under of this single government, with its various sub-governments, instead of being under one of several governments that are joined under a broader meta-government.

                  The senate as it is currently allocated is also horribly disproportionate, which badly needs justification when they represent the people of their states (who just happen to live there) rather than the states themselves.

                  * Full disclosure: I have a great love for designing systems of all kinds, and could go on for hours about almost anything that can be expressed as a set of rules with a purpose.

                  ** This was the original function of the Electoral College, minus the part where they do other things too.

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                  • “The senate as it is currently allocated is also horribly disproportionate, which badly needs justification when they represent the people of their states (who just happen to live there) rather than the states themselves.”

                    The concept of the states themselves is a historical anachronism that comes from a time when “the next state” was days of traveling, and something most people never ever saw in their lives.

                    But today, there is very little difference between the states, and even less between the way people live in the different states (AK being a notable exception, HI probably too, due to geography and climate). We all use the same products, buy them in the same stores, do essentially the same jobs, in the same way says, and share the same cultural memes. If I show you a picture of a street in America you probably won’t be able to tell me where is it taken: Whereever it is taken there will be a gas station, a McDonald, a Starbucks, and a school zone traffic sign in the picture.

                    The idea that there is a WI or a TX or a NJ way to do math, or accounting, or insurance, or milk processing, or fighting crime, is obsolete. We don’t need fifty intermediate governments repeating each other, and in the process creating confusion and corruption. We could perfectly function with municipalities and a Federal government (after all, most of the significant things your state do for you, like highways, they do it through federal grants)

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                        • I always figured this was hard to do just on the basis of technical details. Canada would have to give up too much, eg a single-payer health insurance system that is generally well regarded. Mexico is on the other end — when you add up all things that states are required to do, the price tag is hefty.

                          Among the mandatory things are unemployment insurance and SNAP (food stamps). With these come requirements for the computer systems to accept federal data used in eligibility tests and to allow federal audits. There are only a handful of companies in the business of writing the code for such systems, and they charge high prices. In discussions of rural movements to create separate states away from the urban/suburban areas, I usually rais the point that it’s expensive to be a state.

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                          • All that is true (by the way, Mexico does have computers, and probably unemployment insurance too) but it’s nitpicking.

                            I don’t see what is the value that states bring to the table in the second decade of the XXI century. I understand that if I moved from Texas to, let’s say, Indiana, I would have to change my drivers license, I would pay state taxes but my property taxes would drop, I would have to change insurance provider and my premium would go up or down for no apparent reason. Other than that, there’s going to be little difference in my life (yes, it will be colder, too).

                            But I don’t understand why.

                            Why does Indiana health insurance have to be different at the margins than Texas? What does Indiana do for Indianans that should be different that what Texas does for Texans? Why can’t we pick a state at random (Indiana is fine, I don’t care) and make the whole country, except perhaps AK and HI follow Indiana rule books.

                            Most of my contact with the government ends being with the city or with the federal government (including the ten years long highway interchange project being built one mile away). I don’t need the states, which are the most opaque, least responsive, most corrupt, least active, of all governmental levels in the USA.

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                        • Technically, Canada could try to argue its way into the USA without the USA doing anything.

                          The Articles of Confederation say they can can sign *that*, joining the original ‘United States of America’.

                          And, in the new constitution, as there literally is no list of people who *are* allowed to join the new union, the presumption must be that the entities that are allowed to join are the ‘United State of America’, so if Canada becomes part of the original USA, it can join the current USA.

                          This all hinges on the idea that the original United State of America was never properly dissolved…which is itself an interesting legal question.

                          In fact, there was a bit of a kerfluffle about that at the time, because the *old* government constitution could only be changed by unanimous consent, whereas the *new* government constitution supposedly came into effect when nine states signed, which could have caused utter madness if one or two of the states refused to sign and claimed the old union was still in place. (Luckily, none of them did.)

                          But, to directly speak to the issue of dissolving the old government…while the old government seemed to *accept* the new government, even to the extent of the Continental Congress setting when the *new* Congress* would meet (Which does not seem to legally make any sense at all!), they never actually *formally* dissolved the thing, so it still, in theory, exists, and it is hypothetically possible for Canada to argue their way in merely by signing that piece of paper.

                          And then they can sign the US constitution and join the new USA…although they might not need to do that because because nine states have already ratified the constitution, so Canada might get immediately ‘upgraded’. (Canada, not being a member at the time, is not needed to sign for unanimous consent, which is good, because otherwise they could try to retroactively argue the current USA doesn’t exist.)

                          And now everyone can imagine a Mission Impossible-style movie plot as Canada tries to break into the National Archives and sign those pieces of paper to join the USA. You’re welcome.

                          Of course, by ‘Canada’, a much smaller area of land was meant than what is *currently* Canada, so that’s an interesting legal discussion, too.

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                • I’m all for restraining populist clowns. They can de dangerous.

                  But at least they need to be on the open. My concern is the dangerous and opaque people that can hijack the system without even running.

                  For instance, the problem with the mechanics Guy explains upthread

                  “with a district government about the same size as any particular village consisting of the village representatives. Then you have the district council pick a common representative in the same way** (presumably from among their own, but possibly an outsider).”

                  Is that for me to become District representative or higher, I don’ need to get a village to vote for me. I only need to convince BY ANY MEANS WHATSOEVER a majority of a roomful of people.

                  Carrying a roomful is not hard, and is not expensive. It probably costs less than a Senatorial campaign.

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              • @j_a
                The job of a Senator is not to represent you, it is to represent the state. Now, you might see that as a distinction without a difference, but to me that is another world of responsibility, especially when confronting the power of the federal gov’t. Which is the point of our system.

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                • I understand the theoretical distinctions.

                  I doubt that “represent the states” means much in today’s society. What would be “representing the state” that it’s different from “representing the people of the state”. Can you give me a couple of examples?

                  Note than in my preferred scheme, the whole concept of states beyond an administrative geographical division (like the French Departments) would go away.

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                  • Guess it depends on whether or not you think the whole “individual laboratories of democracy” has any continued value? If you don’t, then why bother with any real concept of federalism. If you do, then the job of the senator is to represent the interests of the state government, as separate from the interests of the people.

                    This isn’t a foreign concept, governments have to keep in mind a much bigger and longer picture than the individual, so it makes sense to have representatives keeping the interests of the state government in mind.

                    Of course, that theoretical idea still has to account for the reality, which is the fact that the selection of senators was rife with political fighting and cronyism/old-boys networking.

                    All that aside, the job of senator is one that enjoys a great deal of incumbent protection, thanks to the long term. If senators want to act as was originally intended, they can without much fear of being voted out, absent doing something phenomenally stupid around election time.

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                    • In practice, going back to state’s appointing senators would basically….allow the deliberate gerrymandering of Senate seats.

                      Because State Leg’s are gerrymandered to heck and gone, but the borders of a state can’t be redrawn just because you hold the Leg for a bit.

                      Bluntly, direct election of Senators probably represents your state slightly better than letting a gerrymandered State Leg pick them.

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                    • I don’t believe that the “laboratories of democracy” or “voting with your feet” has much meaning in a society where our place of employment is the key element in our lives. I’d like to live in Massachusetts because I like Romneycare (I have family there, it saved my cousin’s life), but it’s unlikely it will happen because I, like most Americans, have to follow my career.

                      SSM is a good example. It was nice when some states passed it. But it was mostly symbolic because the Federal definition of marriage ruled the vast majority of marriage benefits. Then came Windsor, and suddenly it didn’t matter if your state didn’t allow SSM. Do adestimation wedding and You had 90% of the package, even if you lived in a Mobile, AL.

                      There’s a lot of little ways that states can affect your life, for better or worse, but the key word is little. I dare any “states as laboratories of democracy” supporter here explain to me what their states health insurance regulations are, and why those are better or worse than Indiana’s.

                      Hell, I’m sure most people have no clue in what ways their life in Indiana is different from the lives of people in Kansas.

                      If I said to you “you can’t move to Kansas. It’s different, you won’t feel at home. They are different there, with different laws” you would think I’m crazy. If I said “You can’t move to Nicaragua, it’s different there. The laws are different” you would think I might have a point.

                      What I’m trying to say is that the USA is a homogeneous country now, and that the small differences between the states are now more of a hindrance than a welcome feature.

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                      • I know some of this will probably come off as ignorant, or snarky, or both. I apologize in advance.

                        Scotland and England have shared a national government for longer than there has been a US. Despite that, the central government has found it necessary to cede increasing amounts of control to Scotland over the last few decades. Scotland and England disagree strongly on issues like how much to spend on the poor, energy, and immigration. It is relatively easy to find states and/or regions of the US with a population share comparable to Scotland’s share of the UK population that disagree just as strongly with the other parts of the country on those same issues, and others.

                        Put another way, the US is no more homogeneous than the UK, and possibly less so. For every person I know who has followed their career across the country and stayed there — inevitably this involved moving from one metro area to another, never between rural areas — I know another who discovered they didn’t like living there and found a way to move their career “back home”. In many of those cases, perhaps most, the important differences between “there” and “back home” were social — the majority attitude towards some issues — more than physical geography.

                        I agree that many states are too small to go their own way on many issues (also that state boundaries are often drawn in ways that split obvious communities with common interests. I suspect that there’s also an effective maximum size on how big a country can be and not suffer from regional frictions that require devolution. The US needs something in between Washington, DC and Denver in political scope, but I don’t see any way to get there.

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                        • I agree largely with everything just said, but I’ll give @j_a his due that there are a lot of state level regs that probably could, or should, be normalized across, if not the whole country, at least large regions.

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