Pistol grip pump

I should have remembered that gun control is one of those topics that once you get into it on a blog, you have to stay awhile. So what the heck -- I'll jump in with both feet about what I think reasonable gun policy (not just the politics of gun control, which was the subject of my previous post) would be.

Let's start with the Second Amendment. It's fun to tweak absolutists with the "well regulated militia" language in the amendment, but what I really think is that neither side of the Second Amendment debate has a terrific legal argument. At the same time, the amendment says its purpose is to ensure a "well regulated militia," but it also pretty clearly says the right to keep and bear arms shall not be infringed. Frankly, this thing was written before the American tradition of bringing all of the tools of statutory construction to parse the language of a law within an inch of its life -- the Framers knew what they meant but I doubt they expected people would be looking at the same language more than 200 years later in the context of personal firepower far more deadly than anything that existed back then.

Gun enthusiasts point out that the fact that firepower has gotten more deadly should be irrelevant -- after all, the First Amendment doesn't limit free speech to printing out broadsides on eighteenth century printing machines. I actually think this argument is pretty damn good, especially because it rejects the so-called "original intent" approach to interpreting the Constitution. (My view of the "original intent" is that the purpose of the Second Amendment was to insure an armed white militia would be available to put down slave rebellions and kill Indians, purposes that are no longer considered legitimate, but if I am not going to rely on "original intent" arguments in other areas of law I won't here either.) So what does that mean? Everyone can have their own personal nuclear weapon, leading to an extremely polite society -- and if a few nutcases destroy a few million people because they can't handle the responsibility of maintaining their nuclear arsenal, that's just the price of freedom?

Of couse not, that would be crazy -- as even Alan Keyes has said. OK, but what that means is that just like in the case of the First Amendment, there are going to be limits to this constitutional freedom. And once you have made that jump, arguing about where the line should be drawn -- should "assault weapons" be banned, and just what is an "assault weapon" anyway? -- becomes a question of policy, not of high constitutional politics.

As I said in my last post (and in the comments), I moved away a long time ago from the idea that heavily arming ourselves is the best route (or even a very good route) for self-determination for communities of color in America. And I realize that this is staking out a particular position in the debate over empowerment for people of color that can be highly controversial. But in rejecting what I call the "urban badass" view of empowerment, I am listening to the wisdom of grandmothers and others in the community who don't like the toll guns are taking -- from stray bullets, stupid crimes and massacres by maniacs -- and who point out, following Dr. King, that nonviolence can be the most effective way to create permanent positive change.

No, I don't believe that we can ever eliminate the toll from guns -- this isn't an island country like Britain or Japan, and even if we somehow were able to impose a total gun ban (which will never happen) we couldn't stop the flow of guns over our borders any more than we can stop the flow of anything or anyone else. So if you want to live in a gun free society you are going to have to relocate. We can make bullets more expensive or make it harder (never impossible) for people to get the most deadly guns, but we can never get guns off the street completely.

But ultimately, I think that laws regulating the availability of guns do less damage to freedom than the alternative most people suggest, which is ever-tougher sentences for gun crimes. (Which has led to the ridiculous situation where buying a TEC-9 is legal, but possessing a TEC-9 (correction: a Glock pistol) while selling marijuana leads to a 63-year sentence.) I don't see how giving more power to the prison-industrial complex makes us more free -- or helps communities of color, who continue to bear the brunt of biased law enforcement. Better to just make it harder to get hold of firearms in the first place.

So to me, the best gun policy is not a lot more stringent than the one reflected in the assault weapons ban, regulating gun show sales, and the like -- maybe a tax on ammunition for the types of weapons that are more likely to be used just for killing people. I'd actually be in favor of rolling back sentences for crimes involving guns, because I don't see how keeping people in prison for ever-longer periods is helping us in any way. Neither a total gun ban, which simply could never happen in this country, nor a society where everyone can carry any weapon they want, has any appeal to me.

(Title to this post inspired by Rage Against The Machine.)

Comments

[Ralph]

Do people that sell pot really carry Tech 9's? Things must have changed. When I bought pot (a long, long time ago), dealers mostly sat around listening to Pink Floyd.

The government should never be in the business of determining the instruments by which the people can make a change. I don't own a gun, but I think you have a right to--largely unhindered--no matter your ethnicity.

[Colorado Luis]

Actually, it was only a Glock pistol -- demonstrating an even more egregious imbalance. The point is to ask those who say the answer is tougher laws on "crimes involving guns" if this is really what they want.

[Ralph]

Drugs and guns don't mix. Rage and guns don't mix either. I've never seen pot induce rage.

The point, and I think we agree on this, is that judges need more discretion.

[Mark]

Interestingly, rural areas with low crime rates almost always have a higher ratio of gun ownership than high homicide urban areas. For example, rural Texas has lots of guns and few homicides.

I just don't see gun control having ~any~ effect lowering crime.

[Colorado Luis]

Like I said, I don't go in for "intent" arguments, and I most emphatically am not a Federalist. Really, though, the stuff in your link would support the idea that the Framers never intended people to have particularly deadly weapons -- they had a Napoleonic-era conception of the militia. It's some scary shit that they viewed people as kind of inherently subject to being called to service of the state, without the need for any kind of debate over whether there should be a draft. I don't think resort to the Federalists' thoughts helps the cause of unregulated gun ownership one bit.

And when I said ammo taxes, I did pretty clearly say "maybe" -- it's something to look into. But aren't AK-47s (and Uzis) still illegal under the import ban imposed under Papa Bush? I thought it's only US-made assault weapons that are OK. That's why I've avoided using the AK as an example in these posts.

[Colorado Luis]

Well you could go on all day about the differences between the First and Second Amendments -- like the fact that the First says "Congress shall pass no law abridging" the various freedoms, while the Second says nothing of the sort. Obviously if the Framers wanted to say there could be no laws abridging the right to bear arms they knew how to say that. So I guess Congress can pass laws abridging the right to keep and bear arms -- it's all part of having a "well regulated militia." See, I told you its fun to tweak people with that.

But really, I think the argument that the Constitution should be interpreted as allowing a right of armed rebellion is the weakest of all Second Amendment arguments. So does it become unconstitutional for the government to fight back? I seem to recall some people saying the Constitution isn't a suicide pact.

[Publicola]

The constitution isn't a suicide pact my ass. The very concept of such a document defining specifically the powers of government while acknowledging the Rights necessary for a free people to actively resist that government is the political equivilent of putting a knife to the government's throat & saying" behave or else".

The suicide pact line is often used by authoritarians or statist who don't have a solid justification for infringing upon a freedom.

Getting back to the subject though, I'm one of those absolutists who does get tweaked whenever the militia clause is brought up - not because it's kryptonite ot us, but because it shows a pre-adolescent level of comprehension when brought up in the usual context. The usual contex is because the militia clause exists then only the state sponsored militia cannot be disarmed by the government. In essence this negates the keep & bear arms clause as if it didn't exist.

It's a simple two part construction; an explanatory clause followed by an operative clause. The explanatory does not mute or alter the operative - it merely clarifies the intent. It was not an uncommon construction back then & contrary to your assertion it does prohibit any prior restraint based gun control laws. & especialy those laws which touch upon martial arms (which is a bit misleading as all arms have martial value).

For the Framers not comprehending the firepower that would develop, this is not entirely accurate. No, I don't think they envisioned machine guns using self contained cartridges, but the point of the 2nd amendment was to ensure that the people (i.e. you & me) had access to the same types of arms used by the soldier (& nowadays cops would be included). It's about balancing the power of the ommon people with the power of the government. I doubt they'd say we went too far as long as government has the monopoly of force it does. & for what it's worth, I do recall seeing some ads for hand grenades, cannons & other implements of the soldier in early 19th century papers. Surely if they were worried baout the people having too much power they would have attempted to intervene back then - perhaps by first taking away the privately owner cannons that were used in the War of Independence.

As to your thoughts about slightly increasing gun contorl while lessenign prison time - I can see you're not enamored by Heilein. For the non-confrontational crimes I agree that the sentences should be lighter. Hell, I think the non-confrontational crimes (i.e. prior restraint based laws) should be taken off the books. After all, they conflict with the constitution anyway (someone needs to tattoo that on Hickenlooper's forehead). But the confrontational &/or violent crimes need to have a stiff sentence - not to rehabilitate anyone, but to deprive someone who would make such an error in judgement of the oppurtunity to repeat his mistake.Kid who has a joint & a pistol on him? let him go. Kid who robs a liquor store at gunpoint? 20 years minimum with no parole.

& about race & guns - most of the prior restraint based gun control we have at the state level is no more than the last of the Jim Crow laws, but oddly enough acceptable sociably. That should speak volumes in favor of abolishing them. But the pragmatic side is this: while the NAACP did some good work form the 20's through the 70's, it was the black man with a shotgun that stopped the Klan - not a writ. Any people who fear oppression (as well as more generalized crime) should take responsibility fo rtheir own defense. Black people disavowing guns makes as much sense to me as a jew in the 30's hitch=hiking to Auscwitz. (& I use black people as an example - through in whatever minorty label you wish & I think the point will be the same.)

Black people should arm themselves, as should white people & hispanic people & asian people (which the latter group doing so [with evil "assault weapons" no less] is the main reaosn why korean businesses survived that turmoil in California a few years back). But nt so much becuase tomorrow we'll all have to take it to the streets, but because it provides the most effective detrrent to resorting to that.

King & others used non-violence effecively. but there are limited circumstances which allows that. Besides, you can always remain non-violent while armed. It's much harder to become violent after you've been disarmed.

[Colorado Luis]

That Article 1, Section 8 reference is a good one -- definitely relevant. But it only reinforces the argument that the purpose of the Second Amendment is not to ensure that people have to ability to rebel against the government -- if anything, it is to permit the government to crush insurrection.

The premise of your experiment to recast the 1st Amendment completely misses the point. The point is that the Framers deliberately chose different words in the two amendments, which suggests that the amendments should be interpreted differently. If they were the same, then they should be interpreted the same. You don't read these provisions in a vacuum -- which is why the Art. I, Sec. 8 reference is a good one.