Reasonable Rights

by Mad Rocket Scientist

Rights.

A lot of ink, both physical & digital, has been spilled discussing the nature of Rights.  Are they natural, inherent, divine, granted, or won?  Are they positive or negative?  What is the relationship of government & society with respect to Rights?  I’ve read a lot on Rights, some of it straightforward, some of it so esoteric or abstract that the few philosophy classes I took in college are inadequate to the task of really understanding it.  But I do have a pretty good handle on how the general population views Rights, which essentially boils down to:

This is something I can do, I don’t have to explain myself, & the bar for saying no is very high.

When politicians & pundits start talking about restricting Rights (something that is relevant in light of the proposed AWB, and the Presidential Kill Power), I try to listen to what is being proposed, & I run a few internal checks against the proposals (something I wish more people did).

What Right is really being limited?

Is this a “feel good” law being rushed due to some high-profile event?  Does the new law sound good because the instigator of the event is unsympathetic?  (A yes answer automatically makes me suspicious of it – I am allowing my emotions to get the better of me; someone is probably making a power grab, or trying to pay off political favors easily).

Is there a metric by which the efficacy of this law can be measured?  Has the person proposing this law, or any other public supporter proposed such a metric?  If not, then should it include a sunset provision?  If so, is it a reasonable metric that could actually be measured?  Does the law provide for data acquisition of that metric (e.g. this law will reduce the rate of X; no one is permitted to track statistics regarding X)?

Has anyone supporting the law attempted to explore unintended consequences, or at least acknowledged (& preferably addressed in a logical manner – instead of just poo-pooing them) the potential problems the opposition has pointed out (assuming the opposition is not being obviously hyperbolic)?

Finally, how would I feel if such a restriction were placed upon any other of my Rights?  Is such a restriction worth it?The last one is important for one reason – any restriction that can be placed upon one Right can form the basis of argument to restrict another.  It may not be politically a good idea, and it might not stand up in court – but then again, it just might.  Since Bush the Lesser – hell, since Nixon – I’ve seen the government decide to do things to some of our Rights that I never thought the public or the courts would stand for & allow, in the name of public safety & the War on Drugs or Terror.

The problem is, most people are utterly clueless regarding the inherent value of a Right (seriously, everyone read that link), and what restrictions currently exist on their Rights, or don’t like (or agree with the existence of) a Right, or find such restrictions of no concern (“They don’t impact me, what do I care?”).  Think the Pro-Security State folks who tell you, “I don’t care if the government knows everything about me, I got nothing to hide.”, while utterly missing the point that it is a Right to not have the government rummaging around in our personal lives, and no justification for it is needed.

Let me say that again – A Right needs no justification.  You don’t have to explain why you want your privacy, it is your Right.  You don’t need to explain why you want a gun, it is your Right.  You don’t need to explain why you wrote or spoke an opinion, or why you attend a church (or don’t), or why you won’t speak to the police, or why you want a lawyer, or why you want to go somewhere, or live somewhere.  It is your Right.

Of course, no Right is absolute.  If they were, the Rights of individuals would constantly conflict, so we place restrictions on Rights in an effort to manage those conflicts.  No slander or libel (tricky things to prove, however), or shouting fire in a theater (although the background on that is interesting).  Religions can not hide illegal acts under their robes, or politicize from the pulpit.  Public assembly is subject to permits so civil services can be notified & prepared, etc.  But what constitutes reasonable restrictions seems these days to be an uncertain thing.  Not everyone cares about certain Rights as much as others, or they believe that restrictions on those Rights would only apply to those people over there.  People who are wealthy and law-abiding don’t have the same view of the weakness of the 4th Amendment as folks living in high crime areas.  Gun owners bristle under regulations non-gun owners see as reasonable, etc.

This is why I try very hard to imagine a proposed restriction on a Right I value (which is all of them, of course).

I had an exchange with Greginak in a previous post, where I asked people to imagine if the laws regarding abortion were similar to the laws regarding firearms.  It’s a valuable exercise, in & of itself; and the abortion debate, in some ways, dovetails nicely with the gun debate, precisely because both involve the clash of personal freedom versus the belief that life is being protected.  You can perform similar exercises with other Rights, such as the 4th (another woefully abused Right).

Now first, I want to make clear, as much as I believe in the 2nd Amendment, I also ardently believe in a woman’s Right to choose (same as I believe in everyone’s Right to marry, etc.).  What I discuss below is me playing Devils Advocate.  If you miss this point & go after me in the comments for being some freak conservative pro-lifer, I will ignore you, or mock you, my mood depending.

So, to begin with, what Federal Laws exist regulating firearms & firearm ownership & usage (since the Bill of Rights was ratified)?

There is the National Firearms Act of 1934 (Full auto weapons, suppressors, & sawed off shot guns require extra background checks & tax stamp), the Gun Control Act of 1968 (must be 21 to own a handgun, no more interstate commerce in firearms except through licensed dealers, prohibited persons defined, banning importing of full-auto weapons), the Firearm Owners Protection Act (no more full-auto except those already in circulation, safe passage act, banning a registry, refined the definition of prohibited persons), Gun Free School Zone Act (no guns near schools except by law enforcement), the Domestic Violence Offender Gun Ban (no firearms for those convicted of misdemeanor domestic violence or under a restraining order), & The Brady Handgun Violence Prevention Act (mandates the background check).

These are just the federal laws.  State laws can vary wildly from next to nothing, to labyrinthine regulations of certain parts, configurations, or even silly stuff, like facing a felony for having an empty magazine, or a bullet on your person without a proper government ID card (such laws are also prosecuted unevenly, with the elite getting a pass, and common folks getting the hammer – states & cities are, by far, usually the worst violators of any of our Rights).

Regarding abortion, since Roe V. Wade, there is one federal law – The Partial Birth Abortion Ban (no partial birth abortions except to save the mothers life).  This law was actively opposed as the first step down a slippery slope toward a total ban.  I know some states have additional laws, some of those quite silly as well.

Now, if Abortion were as regulated as firearms (some of these analogies don’t map exactly, but I’ll do my best):

  • You would need to complete a background check prior to getting an abortion.  If you are a drug user, or if you have a record of prostitution, you are automatically denied.
  • Abortion doctors are heavily regulated & have to keep meticulous written records.  Errors in the forms required by the government could result in the doctor losing his license & possible jail time.  Abortion doctors are subject to surprise inspections at any time (& often are).
  • No morning after pill (AKA the Full Auto Abortion), and the relevant medical technology for abortions is limited to what was available in the US prior to 1986.
  • The pill is heavily regulated.
  • Children may not get abortions.  Not even with parental consent.  Children may not even talk about abortions.  Discussing abortions, or sex, especially in school can result in suspensions, expulsions, and possible criminal charges.
  • You may not cross state lines to get an abortion (so no living in AL & driving to NY for an abortion).
  • Some states outlaw abortion, & prosecute it heavily.  While the federal government has laws protecting women who have had abortions from being prosecuted for it in states that they are just traveling through, certain states still attempt to do it.  The cases rarely make it past federal appeals court (where they are dismissed), but the federal government doesn’t do anything to the abusive states to curb such behavior.
  • A woman can be prevented from getting an abortion if a man makes a reasonable claims to be the unborn child’s father.  Should the paternity test show the man not the father, he faces no consequence, & is not obligated to pay child support.  Should he be the father, the woman is forever banned from getting an abortion.

Living in this world, women would be regularly subjected to seriously regarded opinion & punditry such as:

  • Why do you need an abortion?  Why do you even need birth control?  Just stop having sex if you don’t want to get pregnant.
  • We can not interfere in the states ability to regulate abortions!  No right is absolute.  We know the situation in states like Alabama is bad, what with such an explosion of births.  The inability of the welfare system to keep up & the children starving is unfortunate, but we can not have people recklessly killing their unborn children.
  • Women who have abortions or support the right are sluts & baby killers.
  • We need a registry of all the women who have had abortions!  Many women who have abortions are prostitutes & such a registry would help to crack down on prostitution!
  • Sex education is discouraged, as it may lead to sex, & unwanted pregnancy, which could result in an abortion.  Abstinence only education is the rule.
  • Women should have to look at an ultrasound one month before they can have an abortion!
  • It’s not a big deal, these are just reasonable restrictions, no one is trying to take away your right to an abortion.
  • We need to ban abortions & sterilize all the women who have ever had one!

Now, who thinks any of that is acceptable?

Of course some of you will start by trying to say that some of my examples are not perfect, or good analogies.  And I already admitted that, they aren’t perfect.  But they are instructive.  They show what can happen if a Right is not heavily defended (like someone proposing an ultrasound prior to an abortion, or trying to ban abortion in the case of rape in order to preserve evidence).

For example, would you find a federal, or even state, registry of women who have had an abortion a good idea?  If not, why not?
Does it make any sense that you can not cross state lines to get an abortion?
etc?

Step away from abortion.  Speech is a dangerous thing, as it can set hearts & minds aflame & drive mobs to violent action.  Maybe we should make every blogger, journalist, editor, and public speaker register as such, complete with background check.  If you aren’t registered, you can not speak in any public fashion.

Cults are dangerous.  The Catholic Church has shown that it protects child molesters.  Let’s register religious leaders (with background checks), and only accredited persons can be spiritual leaders.  Oh, and if your sermons get a bit too ‘culty’, you can expect a visit from some federal agents.

I can go on.

Others will say that some Rights are uniquely dangerous, and thus must be subjected to greater restriction.  And I will give you that the 2nd is the most potentially dangerous amongst the Rights we have, enumerated or otherwise.  That does not mean we should restrict it so cavalierly.  It is still a Right, and as such any restriction we place upon it should be done cautiously, carefully, with a clear intention of purpose, and a remembrance that we may be opening a Pandora’s Box that could negatively affect other Rights.

We won’t go wrong by moving slowly & carefully when considering the restriction of a Right.  Our nation was not facing imminent destruction if we did not pass the Patriot Act after 9/11.  We are not facing the mass murder of all our children if we do not pass a new AWB.  Taking away the power of the President to kill without Due Process will not dissolve the Republic.

We will NEVER face chaos by acting with reserve when contemplating our Rights & the restriction thereof.  And we never have to justify not allowing a restriction to pass.

Please do be so kind as to share this post.
Share

202 thoughts on “Reasonable Rights

  1. I don’t disagree with much of what you have said here. I don’t think the gun rights/abortion comparison is good enough to be of use but i don’t really feel like debating that. There is a point that i think gets to some of the nub of disagreements. Let me see if i can make some sense.

    People don’t have to justify their use of Right. Correct. But what i see is people on the pro-gun (PG)side feeling that ends any discussion. Well i guess it does if they want to. So if a generic sport barGSB says “no guns” the PG people feel they are losing a right. I’ll leave aside the obvious point that in most things private business owners can do what they want with their property (yes i know that could lead to all sorts of other arguments). I’ll also leave aside the “that just makes them defenseless sheeple” because its silly. But the GSB owners and patrons make the argument that gun are scary to them. This is where the conversation goes askew. That people are scared ( in some cases that is due to lack of knowledge, in some cases that may be from being victimized by gun violence and guns) is valid and shouldn’t be ignored. Saying “this is my Right” is correct and shouldn’t HAVE to be explained but isn’t in anyway a response, or even showing that they care, about what the people who are afraid think.

    Just because you have a Right, which you don’t have to justify using, doesn’t mean it may not affect others in some way. Responding to people’s concerns ( agree or disagree, silly or not) by simply repeating “this is MY RIGHT” doesn’t lead to a conversation, isn’t answering the other persons concern or question and only shows concern about yourself. It’s a self-centered response. Most people prefer to stridently state their own views and not to listen to others, but that doesn’t mean its useful.

    None of the above should be interpreted as anything to do with whatever laws we should have.

      Quote  Link

    Report

    • None of the above should be interpreted as anything to do with whatever laws we should have.

      This is the crux of it. People confuse/conflate a desire for good manners with the need to pass a law.

      It’s like smoking restrictions. As a non-smoker, I kind of enjoy smoking restrictions. I like not having to smell it everywhere, or walk through clouds of all the time. I have a real hard time feeling bad for smokers, because, in my opinion, a lot of them were horribly rude about it. Blowing smoke at people, leaving butts everywhere, etc. Kind of brought it on themselves.

      As a libertarian leaning person, however, I think some of the laws go just a bit too far, such as outlawing smoking bars/clubs/etc. We go for the law way too soon, and then, when people don’t behave according to the law, we ask men with guns to come & deal with them.

      Still, a smoker can directly impact me. Their habit has a way of invading my space, and can arguably be called physically harmful to me. A law limiting it can be justified to some degree on those grounds.

        Quote  Link

      Report

      • And the bad habits of most gun owners can’t cause you similar problems?

        I’m reminded that when we were faced with a problem of drunk drivers, we didn’t respond by banning alcohol, we responded with heavy penalties, licensing on sellers, and similar restrictions.

        We didn’t respond that the solution to drunk driving was a beer in the hand of every driver.

          Quote  Link

        Report

        • And how well has that worked for curbing DUIs? I dare say, education about the effects of drinking, the dangers of drunk driving, and early, safe experiences with alcohol do more to create responsible drinkers than DUI laws & licensed sellers.

          Anyway, we have licensed sellers of firearms, and all sorts of heavy penalties for even the most minor of offenses. And yet the problems persist (although they have been going down for the past 20 years, so that’s good!).

          We can keep making things more illegal, or we can backup & try something different. Like start teaching proper respect for firearms.

          Or more importantly, proper respect for life.

            Quote  Link

          Report

  2. Discussing Rights gets you only so far. There is no Right to have lunch at a particular restaurant, and there is certainly a Right to determine whom you wish to do business with. (That guy smells bad; he’s dressed inappropriately. My regular customers aren’t going to be pleased if I let them in. Any objections? Thought not. Oh, exactly the same applies to Those People.) So looked at purely as a matter of Rights, that part of the CRA is clearly an unjustifiable intrusion.

    But that’s not nearly the whole argument, not even the important part of it. We know the history behind the CRA: the shame of what this country used to be like, and the necessity of fixing that. The Right of the individual to discriminate certainly exists, but you know what? To Hell with it.

      Quote  Link

    Report

    • ” there is certainly a Right to determine whom you wish to do business with.”

      Yes and no. This tends to be an area of liberal and libertarian split.

      Generally you are right but there are limitations if a person chooses to conduct their business in a way that discriminates against someone. A restaurant can’t refuse to serve someone because they are black. A real estate agent can’t refuse to sell an apartment in a certain building to someone because the prospective buyer is Jewish.

      I consider these to be good. Many libertarians do not.

        Quote  Link

      Report

    • That is I consider the limitations to prevent discrimination to be good. If a person can’t sell cookies to someone because of that person’s race, religion, ethnicity, nationality, political orientation, that person should not be involved in running a business.

        Quote  Link

      Report

    • It also struck me that much of the problem was also one of zoning, as much as anything else.

      Egg Whites Only Breakfast Parlor not only wanted to refuse service to people of a particular color or darker, it wanted to prevent a restaurant opening up down the street and was able to prevent this restaurant from operating. When African-American folks started boycotting buses that made them sit in the back, they started getting rides to work from friends… and, of course, laws were immediately passed to prevent illegal taxi rides.

      The whole CRA was necessary… but it wasn’t necessary to merely address the problem of people expected to sit at the back of the bus. It was necessary to address the problem of The Authorities using the institution of the law itself as a weapon to make sure that there were no other options available.

      The good law was used to fix the bad laws. It wasn’t an issue of the good law being used to fix the freedoms.

        Quote  Link

      Report

      • Jaybird,

        I think the CRA was necessary for both.

        I was also thinking of the recent story of a bakery in Oregon that refused to bake a wedding cake for a lesbian couple because they were lesbians. I have no problem with a broad-based public accommodation law that says “bake the damn cake” essentially.

          Quote  Link

        Report

          • Yeah, I don’t know where I’d draw the line. I’d probably support the bakery’s legal right (privilege? prerogative?) to refuse to bake a wedding cake especially for the couple, but I would probably support a law that would require the bakery to sell their pre-made cakes to whoever had money and met the facially neutral “no shirt, no shoes [and the like] no service” requirements.

              Quote  Link

            Report

        • To me, it’s a question of whether gay couples are systematically shut out of services. One cake-Baker is one thing, but for the CRA the issue was that it was a lot of establishments shutting non-whites out. Systemic problems requiresystem ssolutions, but some discriminator somewhere doesn’t, really.

            Quote  Link

          Report

          • I agree completely. It’s entirely feasible to go to another baker.

            Similarly, with pharmacists who won’t sell medicines they disapprove of. If it means that your doctor is well aware that he needs to have a prescription filled at Walgreen’s instead of CVS, no harm done. If you go to Walgreen’s and are told that the only one who can help you is John, and he’s on vacation for a month, there’s a problem.

              Quote  Link

            Report

              • Not really, at least not on the birth control front. There are very few cases of “the only pharmacy within x-miles” and since most pharmacies are run by chains that don’t want to lose customers over this, the only way access problems occur is if we force pharmacies to hire people who refuse to do their job.

                On the wedding cake front… I can be convinced that going to another bakery might be a hardship, but I would need it to be demonstrated. I wouldn’t assume it to be systemic. I think the case in Oregon made the news because it’s not. I doubt there would even be an access problem in Utah. Though, in a place like Utah (outside of Salt Lake) you’re going to have a problem getting anti-discrimination laws passed in the first place. You’re more likely to simply find a baker who just wants to get paid.

                  Quote  Link

                Report

          • I think this largely depends on where a couple lives.

            So if a same-sex couple happens to run into a homophobic baker in Manhattan or Brooklyn, no problem.

            If a couple lives in a small town in Eastern Oregon, potentially big problem.

            I’m more sympathetic to seeing most discrimination as systematic.

              Quote  Link

            Report

        • Taking the power away from authorities to discriminate is really the big benefit of the CRA.

          Using it against individuals is merely just a way to make public spectacles of people.

          Honestly, if the cake maker in OR had just said – sorry, all booked up, can’t accept your business – no one would ever know.

            Quote  Link

          Report

            • And now everyone knows he’s a dick.

              As for sussing it out, if a baker lives in a community large enough to have enough gay couples to identify the pattern, I suspect the baker won’t be in business in that town for long, or there will be enough other bakers happy for the business to not matter.

                Quote  Link

              Report

  3. “We are not facing the mass murder of all our children if we do not pass a new AWB.”

    If gun rights are actually a right, intended to limit the power of the state, then concealed carry, stand-your-ground, and other such provisions become much less important, don’t they? It’s moot for me, since I don’t consider gun ownership an inherent right (which is different from saying that all guns should be banned), but this at least would undermine the people who want to bring their guns to bars. After all, there’s always time to stop home and grab your guns before you start the revolution.

      Quote  Link

    Report

    • Gun Rights are about limiting the power of the state, but they are also about the inherent right of self-defense.

      Two healthy 25 year old men can punch each other around all day and probably walk it off after a beer. One of those men up against 2 or more healthy young men, and it starts to move from a boxing match to a beat down. Or one 75 year old man against a 25 year old man is a recipe for an extended hospital stay, or an early grave for the senior citizen.

      A handgun is, currently, the most effective force equalizer we have. It is the most effective, reliable, & versatile tool for defense of self available.

      Hopefully, someday, technology will offer us a better tool, one not so lethal, but still effective at stopping an attack. When that happens, I expect handguns will become passe.

      Until then…

        Quote  Link

      Report

      • Hopefully, someday, technology will offer us a better tool, one not so lethal, but still effective at stopping an attack. When that happens, I expect handguns will become passe.

        Not just passe. More like, no longer defensible as a right.

        The way I see it is this: A person has an inherent right to life–to continue to live. This has two consequences:

        First, the state may not deprive a person of life except under the most egregious of circumstances. There’s a very high bar for justifying the state taking a life.

        Second, the right to live necessarily implies the right to defend your life against attack. Which, in turn, necessarily implies the right to the means to defend yourself. Which, at the current state of technological development implies the right to own a firearm.

        That last step is contingent. If the technology existed and was widely available (i.e. common and cheap enough) to reliably disable an attacker in a non-lethal fashion, e.g. a Star Trek-style phaser on stun, that last step would be to own such a device rather than a lethal firearm.

        If that development occurs then it would become clear that the 2nd amendment is a conferred right rather than an inherent right and the debate could proceed with that understanding. It may still be justified as a political right, but the self-defense angle would be moot.

          Quote  Link

        Report

      • Gun Rights are about limiting the power of the state,

        You sure about that? If so, then even tho handguns might become passe, weapons with higher firepower wouldn’t. But maybe they might. What’s the upper limit? Is there an upper limit on the civilian “right” to possess arms? Suppose that guns themselves become “passe” wrt limiting the power of the states. Then the justification for “arming up” isn’t gun rights anymore, it’s about “limiting the power of the state”.

        So, what “arms” would limit the power of the state if guns themselves became passe?

          Quote  Link

        Report

        • I should add that if all that came to be, justifying the second amendment in terms of “limiting the power of the (domestic) state” would then become pretty ridiculous. I’m not saying it couldn’t be done and that the discussions around the topic wouldn’t be interesting. And heated. I’m just saying they’d be ridiculous.

            Quote  Link

          Report

        • Right now, the rifle is adequate to the need to limit the power of the state. If the power of the state became such that the rifle is inadequate, then some other mechanism would be required. However, I can not imagine a technology sufficient to enable such a condition.

            Quote  Link

          Report

          • It seems you’re conceding the point, tho. You’re saying citizens have a second amendment right to whatever arms are necessary to limit the power of the state, and that’s its justification. I don’t see that argument as sound. At all. Not only from a constitutional pov but from either a conceptual or evidential one. See my comment at the bottom of the thread.

              Quote  Link

            Report

      • Are you assuming only the victims are armed? Facing two two or more armed assailants, even if you’re armed yourself, is probably just as much of a “recipe for an extended hospital stay, or an early grave” as an unarmed beatdown from those attackers, if not more so.

          Quote  Link

        Report

  4. Is there a metric by which the efficacy of this law can be measured? Has the person proposing this law, or any other public supporter proposed such a metric? If not, then should it include a sunset provision? If so, is it a reasonable metric that could actually be measured? Does the law provide for data acquisition of that metric (e.g. this law will reduce the rate of X; no one is permitted to track statistics regarding X)?

    This, for me, is always one of the biggest issues. If we say “We want a law to help children to read!”, then we should be able to say something like “only 80% of children in 3rd grade read at a 3rd grade level!” and then “this law will make it so that 93% of children in 3rd grade read at a 3rd grade level!”

    Then we can pass the law, run the numbers for a couple of years, and see whether 93% of children in 3rd grade read at a 3rd grade level.

    If 88% of them do, we can have an interesting conversation about that. If 95% of them do, we can have an interesting conversation about that. If 72% of them do, we can repeal the law and go back to the old way.

    And this basic template can (AND SHOULD) be applied to pretty much every single “Something ought to be done about Bad Thing!” problem we have.

      Quote  Link

    Report

      • There shouldn’t be. Generally.

        But there’s really nothing from preventing you from doing all sorts of stuff to tackle problems that are or aren’t measurable using all sorts of intervention methods.

        Once you start getting The Law involved, though, you’re raising the bar a bit, I’d say. Because now you really *ought* to have a method to measure whether or not you’re accomplishing anything.

        At the very least, you should be willing to plant a flag upon some sort of “this is a failure” goalpost.

          Quote  Link

        Report

        • There should be a mild-to-moderate bias against action. Closer to mild by my lights but your mileage very legitimately will vary.

          But it’s less clear to me that it’s desirable that there be a bias toward an assumption that if a law is to work, it will work over a timescale that is well-estimated on the front end.

          This is not a blanket argument against sunsets; you can simply say, look we only want to try this means for so long, and we know that by sunsetting it after X years, we’re foreclosing the possibility that the effects would have come (perhaps with tinkering rather than retreat) closer to 2X years down the line, or become measureable then rather than by X. You can say you know all that, and still just want the measure in place for X years, regardless. That’s fine.

          Just so long as we don’ represent that we know that a good assessment of whether the desired results were not on their will always have been possible at enactment plus X years, at least (in my view) for X’s that are likely to satisfy the folks who most want to make sunsetting the norm in the first place.

          And just to give a benchmark, for a lot of laws, in my view 1o years is right in that range where it’s very right to want to do an assessment, but still too uncertain to declare failures with any confidence. You’re foreclosing the possibility of a lot of down-line results if every law ends after ten years without showing certain results IMO. Which, if you know that’s what you’re doing, is fine. Maybe all you’re interested in is quick, dramatically successful initiatives.

            Quote  Link

          Report

  5. As an example of the ill conceived ideas you talk about, there’s this.

    Seven states – California, New York, Connecticut, Maryland, Massachusetts, Pennsylvania, and Colorado – have, in the past month, introduced bills to have gun owners put their money where their mouth is: liability insurance for their firearms, codifying that responsibility if their firearms are used incorrectly – used by children who find them, by criminals who easily steal them; by people to whom they sell them without requiring a background check.

    The point is to pass legislation to hold gun owners financially responsible for whatever damages are caused by their firearms, and to make the penalties severe enough that the required gun-insurance would be virtually unaffordable.

    This idea fails on so many levels that I hardly know where to begin.

    For one, to find someone liable for an act committed by a third party, when the only connection between the final act and the person being sued is that the person being sued was the victim of a crime, requires a jury to conclude that the person who was robbed is somehow responsible for a murder committed by a guy who bought a gun from a street dealer who bought a gun from a gun thief, etc. Jurors aren’t that stupid, and would know it’s the same as suing a carjacking victim for a murder later committed by the carjacker.

    Second, if you did manage to establish such a law and get juries to go along with it, you’d establish plenty of precedents whereby you could successfully sue crime victims for just about anything. For example, I could steal your car, wreck it, and bill you for my hospital stay plus anguish and mental suffering, and fully expect to not only win, but to bankrupt you. The gun insurance bills are also intended to address gun owners who legally sell their guns to someone who later turns out to cause a problem, and the precedent would also mean that if you sold your laptop to someone who later used it in child porn or bank hacking, you’d be liable for damages. These are not good precedents, and if such bills pass we’ll be at the mercy of juries to show a little common sense.

    Third, insurers already provide firearms coverage, usually as part of standard homeowner policies, covering theft, damage, liability, accidental use, and wrongful death. You can save some on premiums by having a nice gun safe. The NRA and many other firearms organizations already provide extensive coverage for everything from theft to accidental discharge. Gun owners already carry insurance, which would probably come as a shock to the clueless state legislators, so if insurance was the magic bullet that will cure gun crimes, it should’ve already done so.

    Fourth, the proponents of such legislation are hoping that the insurance markets will put gun ownership out of reach because of the premiums. This won’t actually work under any scenario because there just isn’t that much gun crime that a sane jury would hold a gun owner liable for, and if they started passing on huge and frequent awards, raising insurance to unaffordable levels, then such laws would be struck down under Heller because they would be serving as an unconstitutional back-door gun ban. The insurance companies likewise couldn ‘t let insurance rates reflect the real risks of gun ownership because of the vast disparity between a gun owned in a high-crime inner city neighborhood and a farm or suburban gated community. Insurance companies who tried to let their rates reflect such difference would be sued under anti-discrimination laws, just as mortgage lenders were.

    Fifth, some of the proponents are looking to such measures to force gun-owners to keep their guns locked up in a safe or stored in a bunker somewhere, with the idea that any gun owner who didn’t would face massive financial exposure because a jury would find they didn’t “properly” secure their firearms, and are thus responsible for whatever a criminal ended up doing with them. But the USSC also found under Heller that part of owning and bearing arms is having those arms available for actual use when needed. Otherwise the 2nd Amendment is just a right to own a title to a gun locked in a vault somewhere instead of a right to bear an actual arm as commonly understood. The Court said that doesn’t cut it, either.

    And finally, if you could somehow get such a legal and insurance structure in place and functioning, the criminals would quickly see the big glaring flaw in shifting liability to victim’s insurance companies. It would go like this:

    Red is in a gang, and Blue is in a rival gang. Red figures out that he can drive out to the suburbs and steel a .22 pistol from William Van Vorhees IV and use it to shoot blue in the leg. Blue claims he has no idea who shot him, but since William Van Vorhees’ stolen gun was left at the scene, Blue sues William IV and his insurance company for $500,000, and of course wins because that’s the framework of the proposed insurance legislation.

    Then Blue, having won his ridiculous court case, drives out to the burbs and steels a .32 from Fredrick Lincoln Potterdam III and uses it to shoot Red in the leg, returning the favor and dropping the gun at the scene. Red claims he has no idea who shot him, but sues Fredrick, Fredrick’s estate, and Fredrick’s insurance company for $500,000 – and of course wins. After that, each member of Red’s gang shoots someone in Blue’s gang and vice versa, and then Red and Blue decide to franchise their operation and take it nationwide. Soon they realize they don’t even need to run the risk of steeling rich people’s guns because they can just steel the guns from their own fresh-faced gang recruits, who can’t be discriminated against in either purchasing or insuring a gun. It’s a license to print money.

    We get more gun thefts, more shootings, and have created a thriving and unbelievably lucrative criminal enterprise in gun thefts and staged shootings. There’s no way for insurance investigators to stop it because absent the actual shooters, there’s no one committing a crime (other than getting shot in the leg for truck loads of government mandated cash payouts). But the victim was the victim of a crime anyway, so they’d still keep getting the payouts.

    Even if the insurers establish complicity of the gang recruits (and rednecks, and everybody else), the perps don’t have any money for the insurance company to go after because they’re poor-as-dirt gang members whose only other employment option was holding up liquor stores or selling crack.

    If the insurance companies raise their gun-insurance costs to cover the expenses of this enterprise, gun ownership is overly burdened and the insurance requirements would be struck down under Heller. If they try to focus their costs on the most at-risk groups their insurance rates would be struck down as discriminatory, just like housing laws and lending policies. The only option would be to spread the costs of the new criminal enterprise across everyone who carries home, car, and health insurance. Everybody loses except people who steal guns and shoot people, who make out like bandits.

    All this makes me think that there’s no coherent thought behind such legislation, other than childlike magical thinking and perhaps the notion that firearm insurance would require proof of firearm insurance, another way to generate a paper trail on guns that weren’t otherwise tracked or registered. But just as car insurance doesn’t have to be tied to the particular car, the already existing firearm insurance coverage covers the person, and even many people here who don’t own guns are probably already covered under their homeowners policies. So it’s a solution without a problem, and a solution that will cause huge, new problems if the legislation is to have the intended, dire consequences to gun owners.

    Sorry if that’s a little long, but many of these simplisitic and ill-conceived suggestions have complex ramifications. Others simply don’t work, and thus the rebutals to them are shorter.

      Quote  Link

    Report

      • But doesn’t the proposal do the exact opposite of holding gun owners financially liable? Without insurance, the lawsuits would be coming out of the gun owner’s own pockets. With insurance, Travelers or Allstate is taking the hit for their oopsie. That’s why gun owners already carry liability insurance.

        When it makes more sense for legislation to do the exact opposite (ban liability insurance for firearms to make gun owner’s personally responsible!) for it to have the intended consequences, isn’t it a sign that the proposal really wasn’t given much thought at all? Isn’t the fact that the legislation is based on a falsehood, the idea that gun owners aren’t insured, a sign that no research was done to see if there’s even a real problem, or whether the proposed magical solution was already in place, and has been for a century or so?

          Quote  Link

        Report

    • If a gun owner hasn’t kept his guns safely so that a third party was able to get them then liability insurance is reasonable. So if Bob keeps a stack of guns on coffee table, Tim comes in and takes one to commit a crime, than Bob has some legal culpability for not safeguarding his guns. Thats the theory at least. I have no idea how much crime or problems comes from people not safeguarding their guns.

      Personally I do know one guy who was able to commit a murder because he took a loaded unlocked openly available gun from a family members house. I’ve known one small child who was able to accidentally fire a gun because the adults weren’t watching and had loaded guns without locks or in safes. Luckily the 5 year old didn’t hit the 2 year old next to him.

      Essentially liability insurance is aimed at improving gun safety. You may not agree or like it, but it does actually have a valid purpose.

        Quote  Link

      Report

      • So if my car is stolen because it happens to be an older model that is easily hotwired, and then used in the commission of a felony (it was driven through a farmers market), am I responsible because I failed to own a Club, or store it in a garage?

          Quote  Link

        Report

    • Our laws and juries already have such liability covered. It’s called gross negligence, and in many cases such acts are also a criminal offense (letting a known felon gain access to a firearm, providing a firearm to a felon, providing a firearm to someone knowing they intend to use it criminally, etc).

      Lawyers already love to file such lawsuits when they’re warranted. This new legislation is trying to take things to another level, for another purpose, demonizing gun-owners by holding them responsible as a class of people and trying to work around their rights with onerous and clever legal tricks, much like keeping blacks from voting in the South with poll taxes or literacy tests. All our rights are harmed when a government tries such tricks (“You can vote as long as you pay the $20,000 insurance fee against getting electrocuted in the polling booth, along with passing a test of written Sanskrit.”) This is how legislatures behave when they’re intent on controlling and limiting freedoms otherwise promised in the Bill of Rights.

        Quote  Link

      Report

      • And the way to deal with known potential liability is through insurance. Works for cars and all sorts of professionals who have to carry malpractice insurance. Heck the NRA would make a ton of m0ney being an insurance provider. Think of it….Gold Jerry Gold.

          Quote  Link

        Report

      • The NRA already is an insurance provider. Pull up their webpage and you get to see all the cool insurance benefits for their members.

        This is but another example of how the existing proposals seem to have no remote connection to reality.

          Quote  Link

        Report

        • So the NRA can reap the benefits of mandated insurance. So where is the problem with mandated insurance. There is an obvious difference between voluntary and mandated insurance. Hell i’m not even sure if i’m for it, but i can clearly see a valid reason for it instead of the knee jerk denial of any reason.

            Quote  Link

          Report

          • It’s because the gun owner is being held liable for the criminal act of another.

            If my gun is stolen, that is a felony, whether or not my gun was in a safe, or on my kitchen table. They had to commit a crime to get my gun.

            Now if I gave it to them, or left it out with a wink & a nod as I left for the grocery store, that is different.

            The insurance scheme George is railing about is one that starts with the assumption that because I own a gun, if it falls into the wrong hands, there was a wink & a nod involved.

              Quote  Link

            Report

            • I think its about not keeping guns safely. If a gun is stolen then report it and it isn’t an issue. If you left a gun out and a kid got it then insurance is there to cover the liability and to prod you to keep your guns safely. George is railing to rail. I personally don’t’ have a problem if someone wants to own 129 guns, but i do think it is reasonable and not in any way limiting a right to do things to encourage safety. Insurance just might be a way to do that.

                Quote  Link

              Report

              • Anyone with 129 guns already has them insured out the wazzoo, along with a huge gun safe. Where I live, walk-in gun safes aren’t that uncommon. As for ordinary folks, they’re already covered under their homeowner’s insurance, something apparently not suspected by these state legislatures, or something not cared about because they’re thinking of some bizarre, different form of insurance.

                One intention might be a push towards requiring floor or wall mounted gun safes, something renters can’t legally install, and thus a back-door way to ban guns only for the poor and minorities, which is the usual intent of gun bans anyway.

                It’s a case of “Let’s make up an imaginary problem and pretend to fix it.”

                  Quote  Link

                Report

                  • Liability insurance covers you for your mistakes against someone else. Or, in the extreme, covers another whom you willingly allowed to use your property (say, if you let your friend drive your car & he gets into an accident).

                    The liability George is suggesting covers you for someone elses criminal acts with your property, property they acquired via another criminal act. So if your friend steals your car, you can not be held liable because you are not a willing participant in the event chain.

                    George is suggesting that the insurance the states are mandating would pay out to a victim of a gun crime that was injured with your gun, even if the gun was stolen, even if you reported it stolen.

                      Quote  Link

                    Report

                    • I said above if a gun is stolen and you report it, then it shouldn’t be an issue. In this case LI is about making sure your own guns are safe and reasonable safe from being used by a child. We can debate specifics about how LI could work which is fine. There are obviously some dumb ways to do. I think there are likely smarter ways to do it, just like with everything in the world.

                        Quote  Link

                      Report

                    • Excuse me if I chime in quickly on the risk management side of this (not the efficacy of the policy issue).

                      It’s true that you are not *required* to keep liability insurance for your car that protects you if someone steals your car and causes a third party loss. But don’t take that as a sign that you cannot be held liable for those damages; you can. Most comprehensive (comprehensive in the colloquial sense) car insurance packages however, DO have third party liability coverage.

                      You actually do have a tremendous amount of potential liability if a dangerous product that you own is stolen and used to cause injury or damages – and this absolutely includes guns. When you purchase a gun you are assuming a legal responsibility to keep it out of potentially dangerous situations; if you do not then you are absolutely liable for the financial damages.

                      If a jury can be convinced that you did not take reasonable steps to secure your weapon before it was stolen, an injured party might very well expect some or full compensation from you.

                        Quote  Link

                      Report

                    • I know lawsuits against gun makers were made illegal in the 2000’s. Because it should be a right gun makers shouldn’t be sued or something. Well that was something the NRA wanted and won. It seems hard to justify on a legal basis or frankly any basis other then “don’t sue gun makers”. Are there similar laws against suing gun owners? I have no idea. Are there special hurdles to overcome? It seems like the gun industry has received extra special protections.

                        Quote  Link

                      Report

                    • Well, as mentioned in the link, what is sought is also “codifying that responsibility if their firearms are used incorrectly – used by children who find them, by criminals who easily steal them; by people to whom they sell them without requiring a background check.

                      It’s the state that isn’t requiring a background check, not the gun owner, and of course the gun owner doesn’t even get proof that he ran a background check (it’s done over the phone), and the FBI purges their audit logs after a fairly short period. So by the time some criminal event occurs involving the purchaser, even the FBI wouldn’t be able to verify that the owner had or had not run a background check. He can’t prove whether he ran a check or not, nor can the FBI prove that they turned down the request for purchase, or even if such a request was made. Lawyers are going to have a field day with that one.

                      Also, the database the FBI uses is a mess and many millions of people who should be on the banned list are not, due again to states and federal agencies who can’t get their act together and supply the required information. Gun owners will probably be held financially responsible for those failures, too.

                        Quote  Link

                      Report

                    • I think there’s a push to make the records permanent. One of the reasons they weren’t is that it used to take up physical storage space and there are millions of checks per month. However, given the problems with the database and federal record keeping in general, I’m not sure that the FBI’s failure to find a record in their archives could be taken as proof that the request wasn’t made, and any good defense attorney would put the entire NCIS records system on trial every time such a case was brought.

                      And then you’ve still got the problem that if it was so important for the gun owner to run a background check, why isn’t he actually required to run a background check? We still don’t require the police to run a background check of the people who buy guns at police auctions.

                      Heck, the head of the Phoenix BATF office sold a pistol (one that is illegal for anyone other than military and law enforcement to possess) over the Internet to a Mexican drug cartel member (as near as anyone can tell. It was recovered at a cartel crime scene in Mexico). He also purchased it illegally by putting an invalid address on the BATF form required for purchasing a firearm from an FFL. He got promoted. One set of rules for them, and one set of rules for the rest of us.

                      Ironically, under Feinstein’s proposed assault weapons ban, the psycho LA cop terrorizing the city would be one of the few people who could legally purchase an AR-15 with an extended magazine.

                      And of course if they make buying and selling firearms too legally onerous, they’ll be surprised to find that gun folks are perfectly willing to stop selling guns completely and just indefinitely lease them to each other with nothing but handshakes, rendering half of firearms regulations completely moot. Things like that happen when laws are so unworkable by common folks that black markets spontaneously form.

                        Quote  Link

                      Report

                    • RTod – Thanks for the clarification, that was a twist on liability I was not aware of. I’m curious why such a legal danger is not more widely known?

                      George – last I checked, an FFL is required to keep all the Form 4473 they use for background checks, so a seller should be able to go back to the FFL who ran the check & request the form. I’m not sure what happens to said forms if the FFL loses his license or dies or goes out of business.

                        Quote  Link

                      Report

        • The NRA would certainly sell more insurance, and gun owners would thus be less responsible about keeping their firearms secured because “they’re insured,” but other than that, what would the legislation accomplish in its weak form? Well, absolutely nothing, other than having some irresponsible inner-city gun owner (and probably gang member) represented by a team of high-priced insurance attorneys instead of a public defender.

          But part of the intent of its proponents is to make the insurance unaffordable by expanding the concept of “liability”, and I’ve already covered a host of bad outcomes with that idea, such as tearing up the foundations of our tort system and establishing precedents like bankrupting you because the guy you sold your car to got a DUI and killed someone two years later (you should’ve known he was a drinker just by looking at him, and thus you’re at fault for his accident). So you’d have to buy car insurance at the same rates as the worst driver you could possibly sell to. And of course your car would have to be insured not only against theft, but against being stolen and used to ram three blocks worth of luxury cars parked at the Oscars, etc. You’d be personally liable for all those damages, too.

          Basically, the suggestions would produce a lot of collateral damage and brilliant new insurance scams and gun crimes, but do absolutely nothing to reduce violence. As Otter said in “Animal House” – “I think that this situation absolutely requires a really futile and stupid gesture be done on somebody’s part!”

            Quote  Link

          Report

          • ” Well, absolutely nothing, other than having some irresponsible inner-city gun owner (and probably gang member) represented by a team of high-priced insurance attorneys instead of a public defender.”

            Well there you go. i think you have said more than you intended.

              Quote  Link

            Report

          • George, I love what you do, but this

            and gun owners would thus be less responsible about keeping their firearms secured because “they’re insured,”

            is really great. If even insurance promotes the wrong kind of incentives, then there’s just no way to make the world right.

              Quote  Link

            Report

            • I know i get in all sorts of accidents just BECAUSE i have insurance. Screw anything else…i’m insured baby.

              You’ve never seen anything like the hellscape that is the Allstate parking garage at 5 PM, after the day’s customers have signed their contracts, and engaged in a winner-take-all demolition derby to the exit ramp.

              It makes Road Warrior look like Driving Miss Daisy…just a fiery mass of twisted metal, burning plastic, oily smoke and shattered glass….the tangled, overlapping screams of the dying emanating from the wreckage, pleading with their suddenly-absent gods – or anyone, anyone at all – to give them the sweet release of a quick merciful death…the only reply, the whooshing roar of convected heat blasting off concrete, and flames rising, to an indifferent and inky sky…oh, the humanity…

                Quote  Link

              Report

            • Think how much more carefully you’d drive if the likely result of any accident was losing your house, along with your savings. One of the reasons we have car insurance is because without it, driving is too freaking stressful, every minute on the road screaming “you break it, you bought it.”

              Americans employ 200,000 car insurance agents and spend about $100 billion a year for it (by some industry estimates, about $80,000 per person over their lifetime). They wouldn’t do this if they weren’t getting some enormous emotional relief from it, no matter what state laws dictate. About the only people who drive without insurance (which is much, much cheaper) are people who really don’t have many assets to lose, which simply created “uninsured motorist coverage” for the rest of us.

              Without car insurance, most of us would drive like grandmothers (except for teens and drunks) and would rarely venture out, lest someone hit us and the witnesses get it all wrong.

              Thus my assertion that without liability insurance coverage for their firearms, most gun owners would be even more careful about their storage and use, and that this legislation really has the incentives completely backwards.

                Quote  Link

              Report

              • Think how much more carefully you’d drive if the likely result of any accident was losing your house, along with your savings.

                Dude. Someone can only their house if there’s a determination in court regarding fault and damages. And it’s only because of that process that insurance companies are a part of the game.

                  Quote  Link

                Report

    • But just as car insurance doesn’t have to be tied to the particular car…

      Point of pendantry: Car insurance definitely is tied to a particular car. I’ve lived in eight separate states and the VIN has always been listed on the policy. It’s also tied to the owner(s)/drivers to set the rates but also covers a friend if you should loan her that vehicle.

        Quote  Link

      Report

      • You can also get what’s known as “non-owners car insurance”, which is car insurance without any particular car, available from most insurance agents. I recently met a girl who had to get such a policy to keep from losing her driver’s license, as she’d been busted for driving someone else’s car without insurance, didn’t own a car of her own, and had to prove she’d gotten car insurance to keep her license. It’s a bit like car-rental insurance that covers a driver through the year instead of rental-by-rental, but it doesn’t cover collision or theft, just liability. It also covers you no matter whose car you drive, and we should really require all car thieves and car jackers to carry such policies, since they can’t know beforehand what kind of liability limits and deductibles are on the vehicle they’re stealing, potentially opening them up to some personal liability in the event of an accident during a high-speed police chase.

        Insurance agents would probably be happy to do all liability coverage that way (except for the existence of teens in those evil sports cars), since a driver with even a hundred cars can still only drive one vehicle at a time, but to tag a vehicle requires proof that the particular vehicle is insured, which gets back to VIN numbers. Given that most people only own one or two cars, it’s just simpler to do it like we do. For the Jay Lenos of the world, insuring the person would certainly be simpler for everybody.

          Quote  Link

        Report

        • Okay. I hadn’t ever heard of that kind of “driver’s” insurance before. I find it a bit odd, since as a commercial driver, if I was caught driving my employer’s vehicle without the requisite insurance (just imagine the insurance on a big truck!) the citation actually goes to the owner of the truck. I suppose it could vary by state, though.

          Basically, I’m held responsible for stuff that’s under my control, as it should be. Things like speeding or staying within weight limits. I suppose I could be held responsible for driving a vehicle without an insurance card, but I couldn’t be held responsible if that insurance had lapsed without my knowledge. (At least I hope not.)

          And I’m sure Jay Leno gets a multi-car discount. A big one.

            Quote  Link

          Report

  6. Can I suggest that two strands of thought in your piece quickly come into direct conflict with one another. The first strand “a right needs no justification” quickly comes into tension with “no right is absolute”. The “no right is absolute”, in my mind, creates all sorts of boundaries to rights. As you state, rights come into conflict with one another. A variety of values are taken into balance: public safety, bodily integrity, self-defense, etc., etc. Altogether, one has to situate a particular right in a whole field of potential rights that are given greater or lesser precedence. For those more skeptical of gun rights, precedence is given to those other rights (and values). So I wouldn’t attribute the disagreements to “clueless[ness] regarding the inherent value of a Right” as you do. There’s a perfectly legitimate debate about the relative value of certain rights as they relate to other rights.

    When one says “I have a right to X” in a community, you are beginning a discussion. It is a thesis statement in a justification which follows. Why do you have a right to X? What the consequences for yourself and others of recognizing this right? To me, that’s where the real work of the arguments lay, not in the rights claim. The rights claim on its own doesn’t get you very far. Given we live in a self-governing political community, one has to engage in the ongoing work of convincing others why we ought to respect, recognize, give deference to, this or that particular right. (Especially since as a matter of raw power, the community can force the individual to obey.)

    Lastly, gun control over the last three decades in the US has not proceeded cavalierly, incautiously, without care, or without clear intention of purpose (to borrow from your closing warning on restricting rights). If you’re arguing in a free society the burden of proof tends to favor liberty, rights, freedom, and all that good stuff. Then I agree. But that point doesn’t get you very far when these laudable values are in conflict and we have to get down to particular conflicts.

      Quote  Link

    Report

    • You got a lot going on in 3 paragraphs, I’ll give you that. I’ll see if I can address this adequately (& please, don’t assume I am focused solely on gun rights).

      Justification – I don’t have to give an explanation as to why I exercise a right, as long as I am exercising it within the established bounds & limits. Limits that are established with regard to the rights of others (i.e. managing the conflicts) are legitimate, and if I wish to exercise a Right beyond those limits, I need to justify it (e.g. justifiable homicide). However, if we are telling people we need to limit a right, we, those who wish to limit, have to justify to new restriction.

      This is the discussion that must be had, and I feel that far too often, it isn’t. Politicians change the landscape of our rights too quickly (for their own reasons), we fail to realize what we’ve lost, we fail to hold them accountable, and we are often the poorer for it.

      When one says “I have a right to X” in a community, you are beginning a discussion.

      I’m starting from, “this discussion has been had & the results are laid out in the Constitution & the BOR”. So if I claim to have a Right to Privacy, I don’t need to have a discussion as the validity of that Right, as it is established in law. If you want to limit my Right to Privacy – NOW we have to have a discussion.

      Finally, gun control has, & has not. Or rather, I should say that a lot of gun laws exist, mostly at the regional level, that make no sense & have no significant efficacy. Even at the federal level, some of the laws were passed without much obvious thought as to how they would help (the AWBs being the perennial favorite example of a jumble of useless regulations that have no impact on the problem being addressed). Others, like the Brady law, had a clear goal, & one could argue a net positive effect.

        Quote  Link

      Report

      • this discussion has been had & the results are laid out in the Constitution & the BOR

        The problem is that the Constitution is unclear. Both Heller and McDonald were 5-4 Scotus rulings. The arguments are a finely balanced thing, as a political matter, if one Supreme Court justice tips the balance this way or that. As the recent, lengthy thread here on US Constitution interpretation shows, there’s significant disagreement over interpretation and emphasis. Furthermore, that disagreement isn’t only located on the constitutional level. Even accepting those two rulings as settling the matter, there’s still a great deal of latitude for government to shape contours of firearms ownership – as evidenced by the discussion elsewhere in this thread over insurance and assigning liability.

        I don’t have to give an explanation as to why I exercise a right, as long as I am exercising it within the established bounds & limits.

        The dispute is precisely over the bounds and limitations of the right. What bounds and limitations, if any, should the community advance with regard to: gun ownership, abortion, privacy, speech… But you can’t dismiss people with alternative perspectives on the bounds and limitations by just calling them clueless – or at least, you’re unlikely to mount a convincing case on that basis. Just to be clear, I’m not saying while your out buying a firearm I can saunter up to you and say, “Justify yourself to me.” I’m saying that as a matter of lawmaking, rights and (crucially) their relationship to one another are far from self-evident. When confronted with a rights claim on that lawmaking level it is entirely legitimate for the community to demand justification.

        On acting too hastily, on US post-9/11 policy responses I think you have a point, stock-taking of the Patriot Act, targeted killing, and the AUMF, all appropriate. With respect to gun control however, there has been little evidence of national level action moving too quickly to control gun violence. The AWB was permitted to lapse, we’ve had at least half a dozen outrageous mass killings in recent memory, and the regular level of gun violence in the US is unlike almost every other developed country. (Also, I’d note that because the US has so many jurisdictions that make their own rules, regional regulations may be useless because they are regional not because the regulation itself isn’t effective.) Taken together, the US has been slow as molasses in demanding justification from gun rights proponents why the present regime should continue as is (once again, even allowing for Heller and McDonald).

          Quote  Link

        Report

  7. When the Bill of Rights was adopted, women did not have the right to vote. People owned slaves. Slaves also did not have the right to vote or to many other freedoms, yet they did have some rights; their owners were not, for instance, allowed to murder them (though that was pretty gray in how it was applied on the ground.) Women were counted as a full person in the census, but slaves were only counted as 3/5 a person. Eventually that ended, and the right to own slaves was no longer a right, the right to vote was extended to former slaves, and even to former slaves who were female.

    So the very notion of ‘right’ is a changing thing, it reflects the time and how the body politic comprehend ‘we the people.’ Today, we recognize that women have the right to control their bodies; that a pregnancy does not have more rights then her own right to herself. That peeves a lot of people, who thing a fetus has more rights then the fetus’s creator has. (And if you don’t think that woman’s the creator, try growing yourself a baby without a woman to do it for you.) If you want the King James wording, as the baby’s creator, she endows the fetus with rights by opting to host it for the time required for it to turn into a person. She endows the rights.

    Guns were for a ‘well regulated militia.’ We forget those words. A militia is organized; they drill, they’re prepared to be called for duty. The ‘well’ part of performance lacked; there was a lack of sufficient weapon, a lack of skill, a lack of discipline. So communities created armories for control of weapon quality. Still didn’t work too well. So they created standing armies; and that, by my light, is the ‘well regulated militia.’ That’s the right to bear arms. And I know that will peeve a lot of you, every bit as much as my suggesting a woman endows rights on a fetus by deciding to bear it.

    So to compare gun regulation to abortion regulation is silly. Deciding to bear a child is a right, an inalienable right. But it’s also an active decision that a woman makes because her right to control her body, to the privacy of deciding with her doctor, supercedes the fetuses rights; she has to endow those rights by opting to carry through with the pregnancy.

    The right to bear arms, on the other hand, was expressly for a well-regulated militia, an idea of how to provide national defense for a new and impoverished nation. Actions on the ground as the nation grew proved this idea was inadequate for national defense. Last I looked, the bozos out arming up before Obama takes their guns away were not a militia, and are hardly well regulated. They’re afraid of their own shadows, and think a gun protects them. Personally, I think they’re idiots. But their well armed; about 21% of the population now owns enough weapons to army all the population. They’re so frightened, they’re in an arms race. It’s sickening.

      Quote  Link

    Report

      • I found it based on a presumption that liberals want to prevent gun ownership, yet I really don’t know any liberals who feel that way. I do know a lot of liberals who think many gun owners are out right dangerous and crazy in their demands for totally unfettered gun rights. We face ever rising levels of gun violence.

        Since Newtown, there have been well over 1,000 people who’ve died by a gun. Guns play large in the coercion and fear and threat that women in abusive relationships face. And there seems to be a large group of people who think a gun is necessary to protect themselves, a failing of logic that truly boggles my mind.

        I don’t think liberals want to take away people’s right to own a gun; but we don have a right to discuss the whys and wherefores and whos and whats and how manys of it; between the increasing gun violence in public places and the still way-to-high threats in the home that too many women face, the ongoing urban guns violence, including lethal force used by police officers, it’s an important discussion. A concern-trolling liberal who starts out by implying liberals want to take guns away doesn’t impress me very much; it is not rooted in any reality I see on the ground.

        And FYI, I’m pretty unhappy with the NY law; but not because of gun restrictions, but because of the requirement on mental health providers to report; this is sticky ground, a potential violation of doctor/patient confidentiality, and most mental health patients are only a threat to themselves.

        But here’s the deal: Restrictions on gun ownership does not equal removing the right to own a gun. That dog don’t hunt.

          Quote  Link

        Report

        • who think a gun is necessary to protect themselves,

          Many of who have protected themselves with a gun.

          I can not imagine living in the constant state of fear that you appear to live in Zic.

            Quote  Link

          Report

          • I’ve never needed a gun to protect myself, and I’ve been in some pretty high risk areas. I’ve stared down the business end of a gun twice, and I’m still standing. I didn’t back down either; partly because I’m fairly peevish about such things.

            I can see situations, and I know of people in those situations, where carrying a gun might be prudent.
            But making pistols as common an accoutrement as belt buckles seems to be an undesirable goal for a society.

            But then, I’m one of those people that hates pistols generally, though I believe rights for rifles should be expanded from the present.
            I don’t care for guns myself. I heart crossbows.

              Quote  Link

            Report

            • I’m not a huge fan of handguns for carry myself, either. They are heavy, noisy, inaccurate, under-powered, and uncomfortable. And those small crossbows take too long to reload. Although something like this could be interesting.

              But, as I’ve pointed out before, until technology gives us a self-defense tool as reliable & effective as a handgun, that is what we are stuck with.

              Seeing technology like the Taser shotgun round gives me hope that we may get there.

                Quote  Link

              Report

          • I can not imagine living in the constant state of fear that you appear to live in Zic.

            But I don’t live in a constant state of fear. And I know up-close and in person what fear feels like. No, to me, it’s you who think you’re only safe if you have a gun that live in a constant state of fear, and that does make me quite fearful; not of you, but for you. That gun, it’s like a drug, you think it makes you strong and invincible.

            It doesn’t.

              Quote  Link

            Report

            • To me, personally? No. I own guns, I have a carry permit, but I rarely carry, and usually only in the wilderness.

              I too, am intimately acquainted with fear, & I learned personal courage years before I ever owned or carried a gun.

              You seem, to me (& maybe I’m reading you wrong) to be more concerned with the gun, then the potentially violent will behind it.

                Quote  Link

              Report

          • I can not imagine living in the constant state of fear that you appear to live in Zic.

            Hmm, does that really work? I’m reminded of just before the invasion of Iraq, when I was arguing against it, and somebody accused me of being afraid of the evil terrorist Mooslims. My point was that I didn’t think we needed to invade Iraq in part because I wasn’t afraid, not of the terrorists, not of Mooooslims, not of Iraq. Whereas my strong impression was that this other guy was very afraid of them, hence felt the need to invade and kick their asses before they could hurt us.

            I wonder if someone who feels the need to carry a gun–a right which I support, I want to emphasize–actually lives in a state of a higher level of fear than someone who doesn’t feel the need to carry a gun.

            That could be weak arm-chair psychologizing, so I just toss it out there as a maybe, not a claim.

              Quote  Link

            Report

    • I think I understand where you’re coming from.
      I just want to point out that those arguments fall short in a number of ways (provided I understand correctly).

      I’ve been reading through injunction law. I found a place in the Illinois Compiled Statutes where the father of a child can file for a temporary restraining order & preliminary injunction to prevent the aborting of his child.
      That is, the father has a recognized property right in this.

      Also, Illinois recognizes that procreation is a right. Thus, every incarcerated prisoner must be permitted to procreate, even if they’re in for life.

      I have a cousin that suffered a number of miscarriages. Finally, they hired a “carrier,” and she now has twins.
      How does this thing about “only between a woman and her doctor” pair up to such circumstances?

      The right to abortion is founded on the right to privacy. It’s not even a Constitutional right, but a matter of common law.
      With the movement towards making government the sole health care provider in the US, how does a right to privacy extend to medical records when it can be shown that the gov’t then has an inherent interest in perusing those records?

      You see, technology continues to develop at a very rapid pace. And so, I believe it is in fact “reasonably foreseeable” that the day will soon dawn when the unborn may be removed from one mother to be placed into another, or into some machine to incubate it.
      At that time, should the use of the machine or technique be a requirement, or does this remain solely an issue privacy?

      While I am generally pro-life (I favor a good many restrictions), I would like to see abortion preserved as an extraordinary option. I don’t believe the current framework permits that.
      And that’s why it’s necessary to think past those things.

        Quote  Link

      Report

      • Not unrelated is the issue of:
        Should doctors be permitted to leave gauze, a wristwatch, or an ipod in a patient in the course of a surgical procedure?

        Regardless of whether it sounds like a terrible thing or not, the fact of the matter is that, in most circumstances, we’re ok with that.

        But it is important to note that there are things that might transpire between a doctor and a patient where privacy interests are outweighed by other interests.

          Quote  Link

        Report

      • (While the things expressed were my honest take on both gun rights and abortion, given the storm and the Feb. craze, as dhex would say, totes cray, I was practicing my ‘strident’ voice.’ Please don’t tell anyone I do such things.)

        I totally agree; changing technology and changing mores will, once again, change our view of rights. In the 1800’s, I could take herbs to end an unwanted pregnancy, and until about the 4th month, that was my unspoken right, it was outside the purview of medicine (other then doctors wouldn’t give such herbs, but doctors had relatively little to do with actual women’s stuff, then, too,) and outside the purview of men. Modern medicine pushed the date of my right to opt in or out back to conception, followed by development of contraception. That right to privacy does, in fact, give me the right to decide if I want to endow a fetus with rights.

        Just as changing times changed my rights — to vote, to control my reproduction, they also changed the ‘well regulated militia.’ It’s been interpreted to mean a right to bear arms without relationship to the militia; and like my right to be pregnant or not pregnant, particularly in the early months, has changed with medical technology (and as you pointed out, will likely change again,) I have not problem with revisiting the well regulated part of the 2nd.

        But there’s one huge aspect of comparing gun rights to women’s rights that really sticks in my craw. Men, who’ve typically benefitted and used guns, have a long long history of recording their reasons and whys and wherefores. Women? Not so much. There’s no Federalist paper on women’s rights in American society. There wasn’t a woman in the room. Our voices, our choices are pretty much a blank in history.

          Quote  Link

        Report

        • By current legal definition, the Militia is every able-bodied person between 18 & 45.

          Well -regulated is, by definition, trained in the use of arms. I think that is correct. And I’ve gone on record many times saying that gun owners should be required to get training.

            Quote  Link

          Report

          • MRS, if you want to use a contemporary definition of “militia”, you’re effectively conceding zic’s point, since the definition you’re accepting doesn’t include a requirement or even a presupposition that individuals are able to provide their own arms.

            If you accept the current definition, then there is no purpose for justifying a “citizens” right to bear arms since those are provided by government.

              Quote  Link

            Report

            • I think that the right at present has extended beyond what might be inclined to glean from the text of it– and that’s a good thing overall.
              I really don’t care to go all originalist on the Second because of my cherished First and Fourth. (although expanding the Second doesn’t seem to have much effect on the Fourth)

                Quote  Link

              Report

              • Will, as a purely academic exercise I’ve been wondering about alternative justifications for the right to own guns. Part of this is motivated by the belief that the second amendment doesn’t accord or even justify a basic right to own weapons. I wonder if the fourth amendment – “The right of the people to be secure in their persons, houses … shall not be violated” – can get the job done, especially if we construe “secure” broadly enough to include an affirmative right to own certain tools for defensive (security) purposes. That is, the amendment isn’t merely a limitation on the exercise of federal power.

                I’m just thinking out loud here. Consider it idle speculation rather than a well thought out proposal.

                  Quote  Link

                Report

        • Sorry about your storm & Feb. craze. Hope everything perks up right and proper for you pretty soon.

          I forgot to add:

          I think that the issues you raised up with women & slaves are more properly viewed in the context of an ever-increasing definition of “persons” in the legal sense; i.e. subject to suit.
          In that view, municipalities should also be included, though from the opposite end of the spectrum.

          States & state actors (for the most part) are still not “persons.”
          Hopefully, that will change at some point.

            Quote  Link

          Report

          • Possibly good to suggest that the change in definition of person matters, does lead credence to abortion restriction if you can fix ‘person’ to a few cells.

            But there are other areas of change that don’t depend on personhood.

            Those personhood things are just the attention grabbers; I used them to grab your attention to point out the force of change.

              Quote  Link

            Report

            • Of course.
              Generally, the movement has been toward ever greater rights for ever more people.
              Even with such things as the Patriot Act, it’s a good sign that they have to go all the way back to Adams to attempt to justify it.

                Quote  Link

              Report

  8. Regarding the post you linked to about the inherent value of a right, here are some quotes:

    ” Let’s start with this: The citizen’s right to possess firearms is a fundamental political right. The political principle at stake is quite simple: to deny the state the monopoly of armed force. This should perhaps be stated in the obverse: to empower the citizenry, to distribute the power of armed force among the citizenry as a whole. The history of arguments and struggles over this principle, throughout the world, is long and clear. Instituted in the context of a revolutionary struggle based on the most democratic concepts of its day, the Second Amendment of the United States Constitution is perhaps the clearest legal/constitutional expression of this principle, and as such, I think, is one of the most radical statutes in the world.

    Thus, although [the second amendment] incorporates all these perfectly legitimate “sub-political” activities, it is not fundamentally about hunting, or collecting, or target practice; it is about empowering the citizen relative to the state.

    You advocated for measurable effects of proposed legislation in the OP yeah? So let me ask you this: are there any measurable reductions the power of the US government as a result of the second amendment? We have one of the most well armed, well trained, tactically proficient domestic police forces on the planet. We have SWAT teams breaking down doors in no-knock raids, kids getting shot (by suicide) in the back of police cars, pepper spray and tazers flying around at the slightest instigation.

    Do you really think the second amendment is limiting the Gummints “monopoly of armed force”?

    Or could it be, to use language from the linked writer, the inverse: that a population crazy about guns has increased the use of lethal force by cops far beyond what it would have been otherwise?

    It seems to me that the whole premise accepted by the author is that the second amendment is justified by the ability of citizens to “deny” the state this power. It seems quite obvious to me that it hasn’t. And doesn’t. Does that mean the second amendment isn’t justified?

      Quote  Link

    Report

        • Yes, as the final check against the 4th being ignored.

          I should add that our police, while maybe tactically proficient (police training is horribly spotty and nowhere close to the standards of the army or USMC), are limited in number & in their ability to act.

          They are also always the ones who choose where & when to strike, and they always strike with overwhelming force. While tactically, this gives them an advantage in the confrontation they initiate, the reality is that they are not even remotely trained to counter an attack. They have neither the skills, nor the mentality. Case in point, the LAPD hunter. He has, AFAIK, killed one other cop, but threatened to hunt more.

          The reaction of the LAPD? Gun down a number of innocent people because they freaked.

          Our police are not soldiers, as much as they like to think they are, as much as they like the toys & trappings of soldiers, they aren’t even in the same league as soldiers.

          But that does beg the question, why are the police using military hardware & stormtrooper tactics? Is it because of gun-rights supports & enthusiasts? Or is it because of drug gangs & cartels? The “arms race” Zic mentions above was started by the government, by creating the drug war, & arming police to fight it.

          As I’ve said before, people tend to take their cue from the police when deciding what weapons to own.

            Quote  Link

          Report

          • As I’ve said before, people tend to take their cue from the police when deciding what weapons to own.

            That doesn’t answer, or even address, any of the questions initiated in the OP. Your suggestion is that causally people respond to the cops when determining what weapons they choose to own. That has nothing to do with rights, or pragmatics, or potential harms … justifications, the legitimate exercise of an established right, etc.

            It just begs the question.

              Quote  Link

            Report

                • I do. Not as much as an Army or Marine Infantry NCO or officer, but I’ve picked up a bit over the years.

                  In short, our police are not proficient in military tactics. Or rather, they are kind of proficient in one very specific type of military tactic – that of the ambush/raid on a soft target.

                  Against a soft structure with unprepared defenders, they can enter with overwhelming force & generally secure the structure in short order. However, training across departments is spotty at best, pre-deployment intelligence is often a joke (they enter without actually doing due diligence & invade the wrong place, or drop flash-bang grenades on sleeping children, etc.) trigger discipline is often horrible (people who were sleeping and are just waking up get shot, sudden noises cause stray shots that kill innocents, etc.), and they face almost zero consequences of a bad raid, so they have no incentive to get better at it. And on the rare occasion when a cop is wounded or killed during a raid, either by a defender, or another cop, they act as if the whole community had better mourn, & they had out medals like candy.

                  If the Army or the USMC had the screw-up rate in the Middle East that our police do, they’d be roasted alive on the news, and more often than not, they are hitting hard targets with armed & ready defenders. The Infantry takes losses, lots of them.

                    Quote  Link

                  Report

                • MRS, maybe this is worth saying clearly: I’m opposed to the militarization of the domestic police force. And I’m opposed to the militarization of the citizenry. I think one has a lot to do with the other. I don’t know which one comes first.

                    Quote  Link

                  Report

                    • Professionalism implies that they take responsibility for their mistakes, & make it right. Something a great many PDs are reluctant to do.

                      Militarization refers to the fact that the Pentagon hands them old military hardware & money to buy other military hardware. When tiny towns in NH are assembling SWAT teams & buying Armored Personnel Carriers, we have a militarization problem.

                        Quote  Link

                      Report

                  • If I get a chance (in my infinite spare time), I’ll see if I can assemble a timeline of public militarization. I have an idea as to how it progressed, but I want to see if I can find some stats or studies on the subject.

                      Quote  Link

                    Report

                    • Not WWII, it started later than that. The guns used in WWII were, once they were replaced by the M-14 in 1957, stockpiled & are now available as good, old, reliable hunting & home defense rifles.

                      The police didn’t start getting large caliber handguns & AR-15s/M-16s until much later. The AR-15 wasn’t even available to the public until the early 60’s.

                        Quote  Link

                      Report

          • But that does beg the question, why are the police using military hardware & stormtrooper tactics? Is it because of gun-rights supports & enthusiasts? Or is it because of drug gangs & cartels? The “arms race” Zic mentions above was started by the government, by creating the drug war, & arming police to fight it.

            It started with the Civil War.

            But I don’t buy that it’s the war on drugs driving it now; either. Not the arms race. It’s the constant fear mongering that liberals are going to take away our guns that sends folks in droves to add a new weapon the arsenal, and when they get there, they’re sold the newest citizen-version of military gear, then they go home and show their buddies, who also figure liberals are going to take away their guns, and so go out to get the newest military gear before the liberals have a chance to act.

            It’s fucking spiraling out of control, with 21% of the population owning enough guns to arm everyone. That’s about five guns per gun owner; and there’s lots and lots of gun owners who only own a hunting rifle or two. So we’re talking personal arsenals owned by a very small and fearful segment of the population.

              Quote  Link

            Report

            • And I would add that the ongoing fear that liberals are going to take our guns away is pretty good evidence that gun owners may well know they need to be restrained; that their behavior verges on being addictive.

                Quote  Link

              Report

              • Not really. it’s evidence of a major cultural disconnect. Quite frankly, if the hunters weren’t at least a little concerned, I’d question their sanity.

                City folk get tired of everybody getting killed in driveby shootings, and innocents getting killed when people decide to go “hunt the black men in da city”.

                Rural folks understand that, even if they think that their right to protection trumps the cityfolk’s right to a safe neighborhood.

                  Quote  Link

                Report

                • As I linked somewhere else in this thread, there are numerous quotes of politicians making public statements regarding gun confiscation.

                  It’s not a paranoid fear when they keep making noise about it.

                    Quote  Link

                  Report

          • “But that does beg the question, why are the police using military hardware & stormtrooper tactics? Is it because of gun-rights supports & enthusiasts? Or is it because of drug gangs & cartels? The “arms race” Zic mentions above was started by the government, by creating the drug war, & arming police to fight it.”

            I want to push back on this notion a little. While I am no supporter of the war of drugs, the way you phrase the issue sort of begs the question (right, back at you ;)). While arming (and worse, militarizing) police is mostly in response to gangs and the drug trade,* the reason for this is because the US had both a large number of guns on the streets, and relatively easy access to guns. Said another way, the US has the most militarized police force because we have the best armed gangs. Other developed countries had similar, though less severe (thank god), drug wars. Even with these similar policies the militarization of the police never went as far nor as deep a it did in the US, in large part because they populations are less well armed (though race is an interesting lens to view this through as Europe has started to become more militarized perhaps in part because of terrorism/ethnic and racial tension, while in the US race might have played a role in the leeway we give police when combating crime).

            It’s a self-reinforcing spiral created by an an approach to criminal justice which seeks ‘safety’ at any cost, coupled to culture that ‘wants’ easy access to guns.

            *We also just have a better armed populace, so things like domestic disputes can sometimes lead to police arriving to a drunk/angry/both individual waving a gun.

              Quote  Link

            Report

        • Interesting.
          The Fourteenth wasn’t in place at the time of the Fourth; none of the Bill of Rights applied to the states.

          Terribly sorry, but I’m thinking in several different directions at once, and can’t complete the thought at present. (though I can say those thoughts tend to take two broad categories: the historical and contemporary)

            Quote  Link

          Report

    • Now I can’t find it (sorry, tired, sick baby = no sleep for me), but I recall you asking, if the government is so powerful that riflemen are not an effective check against it, is the 2nd valid?

      Or something like that.

      To me, this question has a binary set answer. Either :

      A) The forces at the governments disposal are such that riflemen are ineffective at thwarting a government run amok & putting down such a rebellion would be trivial.

      or

      B) Riflemen would be effective.

      If A, then the government is confident in it’s power, it has nothing to fear from riflemen, and since long guns are so infrequently used in crimes, it has no honest justification in attempting to limit then.

      If B, then government attempts to limit long gun ownership is specifically because they recognize the threat such weapons & men mean to their power, & are afraid of it.

      Truth be told, as impressive & as mighty as our military is, it could not stop an actual rebellion, nor could the police. I can explain in detail if you’d like.

      But lets, for the moment, assume it could. This sets up an interesting question. Given all the power our politicians have assumed for themselves, the Rights they’ve trampled, & all the atrocities they have committed, why have we not yet risen up to throw them down (I have a theory, but I’m curious to hear yours)?

        Quote  Link

      Report

      • The argument in the above comment was a little different than that. It was focusing on the linked author’s claim that the second amendment is justified as the according a political right to own guns as a check against the governments monopoly on force. My counter argument was that if that were the case, then is there any evidence of the second amendment actually achieving its ostensible purpose. It seems to me that as a matter of observation, we have a one of the most well armed and well trained domestic police forces in the world. And certainly more well armed and trained than even a few decades ago. And I made that argument in light of the author’s claim that the second amendment “denies” the state that monopoly power.

        Well, maybe it’s true in principle that armed citizens could act as a check on the use of government power, but in practice it seems to me that the opposite is the case. The more armed up citizens are, the more armed up the state becomes. So in practice, the second amendment – according to the justification assumed in arguendo – isn’t justified.

        Could the possession of guns by citizens act as legitimate force to constrain state power? Well, yes and no. I don’t think the possession of guns or armed rebellion can constrain the legitimate authority of government to pass and enforce particular laws, since that authority is based on a conception of the rule of law and not force.

        It could constrain the illegitimate exercise of governmental authority, but if government has no legitimate authority to pass and enforce certain types of laws and the only response is armed rebellion, then we’ve already conceded that our nation is no longer constrained by the rule of law. So the use of armed force won’t, at that point, constrain government’s legitimate authority, just it’s illegitimate use of force. And at that point, anything goes.

          Quote  Link

        Report

        • Ahhh, I see where you are coming from.

          In that case, should the government become illegitimate, & the citizenry has to defend itself against such force, is it not prudent for the common citizenry to have some means of defense readily available (i.e. where they don’t have to raid government armories?).

          Or, think of it this way, the agents of the government, the people who would be carrying out acts of illegitimate force against the people, currently live among the people. If the people are armed, then before a government could go completely off the rails, it would have to pull those agents & their families to safety, or risk them becoming targets of opportunity to an armed & rebelling population.

          The most incredible weapons are just hunks of inert materials without people to guide them & a logistics chain to support them. If only the government has weapons, then those agents & the supply chain can be protected. If the population is armed, it becomes a much stickier problem.

          I’ve seen this scenario worked in more detail, somewhere…

          (And another citation needed – I’m starting to feel like Wikipedia)

            Quote  Link

          Report

  9. Dude, you laid out a good case and I encourage you to submit more GP’s. You’re a good writer.

    BUT, I thought it was a bit ironic that you attempted to compare gun laws with abortion restrictions, implying that the former are so much more odious than the latter. How they compare depends, of course, a great deal on where you live, but just consider what it would be like to buy a gun in Kansas if the two were really similar:

    There would be exactly one licensed firearm dealer in the state (waaaay over on the eastern end) and that’s kinda dodgy since the last guy that ran the store was gunned down in church by a rabid anti-gun nut. (And the shooter’s now a kind of folk-hero to some, natch.)

    You need two visits to the store with a waiting period. (Remember, it’s waaaay over on one end of the state.) So that part actually exists, as opposed to your implication that it would be so onerous if that were to somehow happen.

    Each time you went to the gun store you had to pass through a gauntlet of protesters screaming epithets like “baby-killer” at you, praying for your soul, and displaying gruesome pictures of murder victims.

    If you find you need or want a gun, but wait a couple weeks too long, you’re prohibited from ever purchasing that gun.

    In some places you have to submit to a deeply probing personal examination designed to discourage you from purchasing the gun.

    Visiting a neighboring state to purchase your gun isn’t a viable option because they all have restrictions that are just as bad or worse (i.e., OK, MO, NE. Colorado may be okay, but have you seen what you have to drive through to get to Denver?)

    Anyway, your piece seems to imply that gun buyers have this incredible morass to wade through while women seeking an abortion have it easy-peasy, nice and easy, and, ‘My! Can you imagine if it were reversed?’ In reality, it’s just the opposite.

      Quote  Link

    Report

      • From Kansas. About 150 miles of nothin’ starting at the border. Plus however much more nothing you had to drive through to get that far.

        Granted, in a big truck I’ll take the drive from the east through the plains over the drive from the west over Loveland Pass any day. That’s just a pain in the a**.

          Quote  Link

        Report

        • I’ve been snowed out of Vail pass in June. Three times. In May even more. And there’s been many many times I’ve gone over that damn pass in full-blown white-out with 4-6 inches of snow on the road, visibility at about 30 feet, and I’m glad they didn’t put the gates down.

          I hear ya. If you gotta drive to Denver, come from the east.

            Quote  Link

          Report

          • I’ve driven from Denver to LA via Albuquerque more than once to avoid Loveland and Vail in the winter. It adds at least a hundred miles, maybe more, but it can be well worth it. (Flagstaff usually isn’t too bad.)

              Quote  Link

            Report

          • I came out of the mountains into Denver on a motorcycle once. Most nerve wracking ride ever. Didn’t help that it was driving rain, the interstate was crowded, everyone was doing highway speeds, and my damn kickstand switch kept shorting out, causing the bike to die, then rev back to life, then die again, over & over.

            Got into Denver, found cover, fixed the switch, and just shook from the adrenaline for about half an hour.

              Quote  Link

            Report

            • I came down off Wolf Creek pass in the far right lane during a hail storm once upon a time. It was in May, I think. I was in the outside (cliff warning!) lane but the tilt of the road – thankfully – was to the left. The hail was so thick my truck hailo-planed across three lanes – two of them oncoming – into the gravel on the opposite side shoulder. I coughed a few times, checked my pants for leakage, and cracked open a beer. The conditions were too intense to drive sober.

                Quote  Link

              Report

    • Thank you! I’ll try, but it’s hard to find time to write with a 9 month old boy running around (or, at least desperately trying to figure out how to run around…).

      The state laws & situations are too varied to capture properly, which is why I stuck with just the federal laws.

      When it comes to gun laws, states like New York, New Jersey, & Massachusetts have some of the most nit-picking asinine laws. Stuff like, technically, in MA, if you were from out of state, & went to a gun range in MA with a friend, and got a piece of spent brass stuck in a pocket of your coat, and a cop found it, you’d be facing a felony charge because you did not have a MA firearm permit.

      I appreciate local solutions to local problems, but at this point, they are just being asses to people.

        Quote  Link

      Report

    • Actually, I know someone who had an abortion in Kansas. (a Mo. resident in the KC area)
      It’s not that difficult.
      Go in one day for the exam and to pick up the information sheet, and go back the next for the procedure. That’s it.

        Quote  Link

      Report

      • Doesn’t this presuppose some of the issues raised by Rob–like not living across the state from the clinic, having a car, having a work/family schedule that allows you to take the time off, etc.?

        I mean, I think our right that for many people these aren’t insurmountable hurdles, but for some they certainly could be.

          Quote  Link

        Report

        • Actually, no.
          There’s an old saying:
          Make up your mind, and you ass will follow.
          None of those “hurdles” is insurmountable.
          You ever see what it’s like to file a section 1983 suit in a federal court to enforce your constitutional rights?
          It’s a lot of work, yes; but those “hurdles” are not “insurmountable” (so sayeth the Court).

            Quote  Link

          Report

          • Insurmountable was a poor word choice. I was more responding to your saying “it’s not that difficult.” So if it helps, change the last sentence to read, “I think your right that for many people it’s not that difficult, by for some is certainly could be.”

              Quote  Link

            Report

                    • Stillwater,

                      I am not an expert on this, but here’s my general understanding.

                      For a long time there wasn’t much. The Supreme Court hadn’t taken cases on the issue for forever and a day (I’m not sure if they were declining them or if such cases just didn’t come their way), and I think that’s why the issue wasn’t much considered by law profs–without much legal controversy, it didn’t draw their attention, and wasn’t fertile ground for a law prof to try to make a scholarly name for themselves. (Specifically, the last relevant case was 1939, U.S. v. Miller, and it was widely believed that the Court had taken a collective rights approach in that case (I’m not sure that interpretation was actually correct, and am dubious the Court made any real statement about collective v. individual rights in that case, but that gets into some technical arguments that aren’t quite relevant, so I’ll not pursue them here.))

                      As the issue began to heat up politically–not sure on the timing here, but perhaps the Reagan shooting and Brady Bill may have played a role (and I’m open to correction on that)–it became worthwhile for legal scholars to look at. And slowly there developed some general agreement, although probably not unanimous, that the collective right interpretation didn’t really hold.

                      For one thing, it would be unique in being a collective, rather than an individual, right, among the other specific rights in the Bill of Rights. So some fairly specific language would be necessary to demonstrate it was meant as a collective right. And the militia language actually isn’t specific enough. It’s explanatory language, not limiting language. It says, “here’s why we’re ensuring this right,” rather than saying, “this right applies to you if and only if…”

                      There’s also the argument that the right to keep arms was long established in the English Common Law as a natural right (and natural rights are inherently individual), going as far back as pre-gun, bow-and-arrow days. And when the U.S. became independent we kept the English Common Law as our heritage, and to a very large extent still do (it’s not uncommon for the federal courts to cite English law from before the Revolution).

                      So a collective rights reading requires an approach that’s both ahistorical and at odds with our understanding of the other rights in the Bill of Rights.

                      One useful and readable argument is given here, by UCLA law prof Eugene Volokh.

                      I want to make my position clear here. I support 2nd Amendment rights because they’re 2nd Amendment rights, e.g., within the first 10, the Bill of Rights. As I was discussing with a colleague today, if there was no 2nd Amendment, I’m not sure if I would support one or not. If the 2nd Amendment was, say, in the teens instead of #2, I’m not sure if I would oppose recall or not. So I’m neither a very strong gun rights supporter nor a very strong gun rights opponent. I’m very uncertain on the issue, so my statements about the law profession’s interpretation here is not meant as advocacy in any one direction or another.

                        Quote  Link

                      Report

                    • More specifically, isn’t it that you oppose 2nd Amendment repeal because of its placement in the list of amendments, while being somewhat ambivalent about the substance/nature of the particular right (i.e., is it a natural right that the Amendment merely protects or not, and if not, do you want, on the merits, constitutional law establishing it?) that (according to some/most interpretations) it protects? I mean, presumably, we all “support” all the rights created/protected by the Constitution, inasmuch as, as long as they’re good law, we want the law to be enforced…

                        Quote  Link

                      Report

                    • Even with a different roster, SCOTUS is often reluctant to overturn itself. In the past decade, I’ve seen a lot of SCOTUS decisions intentionally crafted as narrowly as possible, often with some incredibly twisted legal wranglings, in order to avoid overturning a previous decision, much less two. And there are, I believe, two more 2nd Amendment cases working their way to the Court right now.

                      In short, I wouldn’t hold your breath or give up sex waiting for that to happen. I mean, it could, but you’d need a pretty significant shift in the roster.

                        Quote  Link

                      Report

                    • The Roberts Court has been an exception of course: the two gun cases were in opposition to a century’s worth of similar decisions, and Citizens United was as unprecedented as it was unwarranted. Practically speaking, you’re right: they’re unlikely to be overturned, but I don’t feel a narrow decision from a belligerently ideological Court means that I need to consider the 2nd an individual right myself.

                        Quote  Link

                      Report

                    • the two gun cases were in opposition to a century’s worth of similar decisions,

                      Not exactly. There just weren’t that many 2nd Amdt. decisions, the last one, as I understand, having been in 1939, and not much before that. Check out the Legal Information Institute’s (Cornell University) 2nd Amdmt. page. It’s pretty thin, compared to, say, their 1st or 14th Amdmt. pages.

                      And by the way, the Legal Information Institute is a resource everyone should know about. Full decisions, including concurrences and dissents, for all SCOTUS decisions since some time in the ’90s, and lots and lots of historically important decision. And totally 100% non-partisan.

                        Quote  Link

                      Report

                    • Case in Point:

                      During the run-up to the McDonald v. Chicago case, it was assumed the case would go to McDonald, but there was a lot of speculation around how the case would go. Would the court find for McDonald under Due Process, or would they man up and essentially overturn Cruikshank.

                      Cruikshank was a horrible ruling, that basically gutted the 14th Amendment in an effort to perpetuate the Jim Crow laws of the time. It is widely regarded by many to be one of the worst decisions ever handed down from the Court, and AFAIK, none of the current members of the court find it to be good law. Yet, when the time came, the court punted, left Cruikshank intact, & found for McDonald under Due Process.

                      To any of the lawyers out there: If I got this wrong, please let me know.

                        Quote  Link

                      Report

  10. I’m not even going to touch the abortion / gun comparison, except to say that your arguments are significantly weakened by the fact that a gun that took nine months to ship is still a gun.

    But your statement a right needs no justification is ambiguous.

    Your invocation of a right needs no justification – that’s the point of its being a right. But the existence of a right very much needs justification. They’re not handed down from $divinity, they’re decided on by people, on the basis of whether their creation is justified.

    So, when dealing with discussions of putting restrictions on rights it’s important to acknowledge what you’re debating is probably actually removing the right – turning it into a privilege (with the possible exception of placing rights in a hierarchy: Right X can trump Right Y without making Y not-a-right)

      Quote  Link

    Report

    • As I said up stream a bit, we are starting from different places.

      The time to justify a right is when it is codified. Once it is codified, say, in a constitution or a BOR, or a SCOTUS decision, it no longer needs justification to exercise the right.

      That is where I am starting from.

      If we are seriously discussing altering a right, in the original code (e.g. amending the constitution), then we need to revisit the justification.

        Quote  Link

      Report

      • But here we circle back: the 2nd was codified, the ‘well regulated militia’ bit.

        Historically, that didn’t work out as planned, so they went to public armories and standing armies; but they failed to recodify the 2nd. And now, we’ve got the public armed but not the well regulated militia, so the other half isn’t working out too well, either.

        Again, change is the norm; responding the facts on the ground, not theoretical notions that might or might not achieve a goal.

          Quote  Link

        Report

      • Once it is codified, say, in a constitution or a BOR, or a SCOTUS decision, it no longer needs justification to exercise the right.

        And I vociferously disagree. Standing assumptions should ALWAYS be questioned.

        The founding fathers talked about guns, in the context of single-shot machinery that took a long time to reload; their most practice marksmen were able to fire 3 rounds per minute at best, but with a cost of quickly tiring.

        Fast forward to today, and we have guns that can fire amazingly fast, with an amazing number of bullets before a reload is required. And we have instances of severe violence in society using them.

        The NRA’s solution is “a good guy with a gun.” This makes about as much sense to me as saying that the solution to drunk driving is a beer in the hand of every driver.

          Quote  Link

        Report

        • Not sure why everyone seems to missing this point, but I will try again.

          Once codified, a right needs no justification. This means I don’t have to explain why I am choosing to exercise my right. You can’t take me to court & force me to justify the exercising of my right. I don’t have to explain to anyone why I choose to post on a blog. It is my right (as long as the blog admins welcome me).

          The wisdom of a right may be questioned, but until it is altered, it is what it is legally, socially understood to be.

            Quote  Link

          Report

          • Once codified, a right needs no justification. This means I don’t have to explain why I am choosing to exercise my right. You can’t take me to court & force me to justify the exercising of my right.

            So no judge would ever have cause to question why a man in the middle of an acrimonious divorce involving a restraining order was trying to buy a gun…

              Quote  Link

            Report

            • Ah, well, see, you said the magic words:

              Restraining Order (see Domestic Violent Offender Gun Ban).

              While under a restraining order, said man is prohibited from possessing or purchasing a gun. Why? Because he did something phenomenally stupid & became violent (you almost have to to be on the wrong end of a RO, unless you are stupid and don’t oppose it). We have already limited the right to own firearms to people who have demonstrated the ability to control their temper enough to avoid criminal charges.

                Quote  Link

              Report

  11. Let me say that again – A Right needs no justification.

    I think, right here, I find disagreement.

    The right to vote is something that has been justified time and again. The requirements to vote have been changed, suffrage has been expanded.

    The right to gun ownership is something that was discussed and debated quite vociferously, as was the context for doing so (the original draft of the 2nd amendment had the words “in defence of the state” appended to the “right to bear arms”).

    Any discussion of a “right” needs to be justified; we need to justify how we expect the right to be used, and we need to define the context in which the right exists or may be taken away, and we need to define the point at which exercise of a “right” tramples upon another human being’s existence and must therefore be truncated.

      Quote  Link

    Report

    • This is awesome sauce.

      These good Americans are prudently getting ready to protect themselves.

      It has always been sensible for good citizens to own and carry firearms for lawful protection against violent criminals who prey on decent people.

      During the second Obama term, however, additional threats are growing. Latin American drug gangs have invaded every city of significant size in the United States. Phoenix is already one of the kidnapping capitals of the world, and though the states on the U.S./Mexico border may be the first places in the nation to suffer from cartel violence, by no means are they the last.

      That’s one major asshole fear mongering coward. Please excuse my language. Be he makes me afraid, though not of the folk he intends.

      Cowards.

        Quote  Link

      Report

    • The propensity of pundits & politicians to use fear to drive political change is one of the most disgusting habits of late.

      Of course, the populations willingness to embrace that fear is just as bad…

        Quote  Link

      Report

Leave a Reply

Your email address will not be published. Required fields are marked *