Balkinization  

Sunday, December 16, 2012

"new paradigm" or new Constituiton?

Sandy Levinson


Sen. Chuck Shumer (D-NY) was on Face the Nation this morning calling for a "new paradigm" to break the gridlock re passage of sensible gun control legislation.  Rather telling was the fact that no Republican accepted CBS's invitation to appear on the program to discuss the issue.  My own views as to the high unlikelihood of any movement away from the present status quo are contained in a piece published by the (Toronto) Globe and Mail at  http://m.theglobeandmail.com/commentary/america-needs-gun-control-but-a-political-brick-wall-stands-in-the-way/article6458239/?service=mobile.  Whether one is talking about "fiscal cliffs," "debt limit crises," guns, climate change, or anything else, it is clear that our Constitution dooms us to at least two more years of sidestepping any serious confrontation with the issues.  Political "success" is now defined in absolutely minimalist terms, i.e., failing to go over the cliff into a devastating recession and austerity or actually being willing and able to pay lawfully contracted debts.  It's all very sad, but any serious discussion, sooner or later, will have to stop talking about "pardigms" and willingness to compromise and instead talking about why We the People remain so devoted to a constitutional order that may literally be killing us in its own way.

I am allowing comments, but only, I hope, with regard to the Globe and Mail column.  And, frankly, I'm not particularly interested in getting into a substantive debate on the merits of particular kinds of gun control.  Rather, I want to know if anyone disagrees with the basic analysis that nothing is likely to happen given Republican control of the House and the influence enjoyed by gun devotees in the Republican Party.  (I am particularly uninterested in getting into a debate whether events like Newtown would be less likely if every single person were armed.  Maybe that's true, but it's also true that they would be less likely if all private possession of firearms were banned and offenses made subject to strict mandatory punishment.  Neither is remotely likely to happen, so it's really not worth discussing.)



Comments:

I'm confused as to why you think the so-called defective constitution has anything to do with the absence of federal gun-control regulation. Even if the Democrats had the House, it's far from clear that they, or the Senate, would pull the trigger on such legislation, given what happened in 1994, when the Democrats likewise controlled all branches of government and were then severely punished in the next election for the assault-weapons ban.

It's not as if Obama was elected on a mandate to regulate guns. To the contrary, as you yourself say, he was conspicuously silent about the issue. Had he made it an electoral issue in either election, it probably would have cost him votes (though probably not the election, I'll admit).

Ultimately, the NRA is powerful, not because of checks-and-balances, but because it has significant public support and we have elected officials. So, unless you're replacement for the so-called defective Constitution is an unelected monarch, I'm not quite sure what your point is.
 

His point is that opinions and priorities can change, sometimes substantially in a short amount of time and the current structures inhibit versatile adaptability. It has less to do with one issue and more to do with possible policies advanced by legislators or the executive.

H, you rely on the idea that supposed public opinion generalizations (using such close correlations as trends in 1994) are the determining factor in determining public policy and that is the exact point SL is making: the antiquated structures make any type of significant change--from either party, or branch--almost impossible.

I also like your nod toward Obama's lack of a mandate for gun control because it wasn't a campaign staple, yet you rely on the legitimacy of a lobbying group like the NRA. What do you call this dynamic: purchased populism?

T. Roosevelt had threats made against his life for having Booker T. Washington to the White House for dinner. Sometimes public opinion is ill-conceived; sometimes changing hearts and minds is less important than changing policies. Regardless, policies require proper structures in place to function and thus our current dilemma.
 

Sandy, what's blocking the passage of "sensible" gun control legislation is the fact that our legislatures are democratically accountable, and that a hell of a lot of people disagree with you about what's "sensible".

"I don't get my way" does not equal "The system is broken." Sometimes it equals "The system isn't broken".

I'll get to your essay when it's not time to rush off to work.
 

I'm not sure I agree. A horrible event can galvanize public opinion and overwhelm ordinary political expectations.
 

Given the extent of gerrymandering, it's pretty hard to argue that legislatures are "democratically accountable".

"A horrible event can galvanize public opinion and overwhelm ordinary political expectations."

Yes: see 9/11. However, the American system is designed to prevent that from happening, so it's a question whether even something as horrifying as Newtown would overcome that.
 

The Supreme Court is a political institution, because people are people and language is language.
We argue over the meaning of words and we argue from preference and preferences change.

The shootings will have an effect. It's another straw on the camel's back.

"I am particularly uninterested in getting into a debate whether events like Newtown would be less likely if every single person were armed"

http://www.sciencedaily.com/releases/2009/09/090930121512.htm

Better to say you don't want to get into an argument over the importance of peer review.


 

Growing up as I did during the long period when the "Washington Consensus" was ascendant, I am struck by how much easier it used to be to have discussions about constitutional change -- we enacted seven constitutional amendments in the 40-odd years between 1932 and 1971, and none in the 40-odd years since (the 27th doesn't really count, given that Congress voted on it in 1789).

The Constitution was no less of a creaky 18th century instrument in 1932 as it is today, but the politics of the Washington Consensus permitted the transformation of government to address the challenges of a modern industrial (and post-industrial) state that became a Superpower in international relations. It is no mere coincidence that we continue to act as a Superpower (some might say hyperactively) because the Washington Consensus on international affairs has not fallen apart – both Congress and the Supreme Court display little willingness to challenge the Executive in its wide-ranging exercise of war powers notwithstanding reasonably express limitations on Executive powers in the Constitution.

It’s difficult for me to see how we can bring about meaningful constitutional change in the absence of political consensus. In particular, there appears to be an increasing divergence of views between the opinion elite (including the remnants of the Washington Consensus) and the public at-large – unsurprisingly, the opinion elite has a much stronger vested interest in the constitutional status quo than does the public, which understandably would prefer to have a government more responsive to the wishes of the public and more accountable for failures of policies or their execution.

Change did occur in the 1930s when a sufficient cohort of the opinion elite joined forces with the public to take concerted action to combat the Great Depression domestically and totalitarian regimes internationally. The vilification of FDR by the forces of the status quo ante is sufficient evidence that the transition was by no means easy or even somehow pre-ordained by the seriousness of the challenges at hand. I still see very little sign, however, that today’s opinion elite think institutional change is necessary, much less constitutional change – a succession of failures of their policies (impeachment of a popular president, inability of the national security community to prevent the September 11 attacks, botched execution of the war in Afghanistan, improvident invasion and disastrous occupation of Iraq, infrastructure design and execution failure in New Orleans and botched emergency relief for Katrina, and near-collapse of the worldwide financial system and ongoing worldwide economic slump) has scarcely troubled them, much less caused them to question in any material way our institutional governance arrangements. And indeed, why should they? The existing institutional arrangements strongly favor the opinion elite, and have enriched them, in no small degree at the expense of the rest of us. Unlike the 1930s, they are not yet afraid that either the American people or some outside power will rise up to wrest away the levers of control and confiscate their wealth, so unlike FDR and his elite backers, they are not yet willing to become “class traitors”, or more accurately they are not yet willing to forego some short-term economic and political interest to accommodate changes that are in their long-term interest. I suspect that this purblind stupidity of the baby boomer generation elites will be marveled at by historians of the future, as we’ll be seen as the Bourbons of a meritocracy of well-credentialed fools.
 

Item:

Sen. Joe Manchin (D-WV), who has earned an "A" rating from the National Rifle Associaton, said Monday that he wants to bring the powerful pro-gun lobby into the imminent discussion on gun control, indicating that he would be receptive to an assault weapons ban that Sen. Dianne Feinstein (D-CA) said she would introduce.

http://livewire.talkingpointsmemo.com/entry/sen-manchin-i-dont-know-any-hunter-who?ref=fpblg

This would be one of those who would usually be there to block legislation that gets 57 votes or such.

Anyway, I don't think "our Constitution" dooms us. I think our constitution, that is, how it is currently applied. The gerrymandering Mark Field cited in the House is not mandated, e.g., it is allowed. "Gun devotees" could hinder things in a better system too.

You said you don't want to talk about gun control but then you end with what is "less likely" and make a claim involving ... gun control. I'd just note there that a supermajority opposes banning "all private possession," and that includes me.

Also, like Chris Hayes last weekend, I oppose MORE strict criminal mandatory policies. That is often the NRA solution -- more imprisonment of the bad sort. We know how that usually goes in the real world.

Anyway, 9/11 did change some things, often to the worse (Iraq, anyone?), so maybe killing twenty or so children will. I simply don't see any easy solution here & think ultimately -- like slavery and other big things -- it won't start in Congress anyhow.
 

I don't agree with your prognosis for legislation (and also unilateral executive actions). The failure of pro-gun GOP legislators to appear on TV is good evidence of the point opposite yours. There is a groundswell of opinion that they do not wish to publicly oppose. I agree with Magliocca. Obama has an historical moment that provides a strategic opportunity. Judging from the caliber of his speech, he is seizing it.
 

I don't really see how the Constitution is to blame for this one.

Absent considerable further decisions from the Court it isn't at all clear that national gun control could be as tight as it ever was consistent with the second amendment. A nationwide regime equivilent to that in place in DC post-Heller (and approved by the DC Circuit) would put us somewhere near Canada.

As for the House Republicans, the House is the part of Congress that would look most like a post-reform legislature. It's the Senate that would be gone.

Certainly there would be some differences, on the margins, from fixing redistricting but not enough to make a difference on this issue, I would think.

We could conceivably go to a parliamentary party list system, but it seems like those systems have even more opportunities for blocking single-issue minorities due to the coalition negotiation process.
 

As a gun owner and a taxpayer who puts me in the sights of the "fair share" rhetoric I see a connecting thread here. One group, I will call liberals, have strong ideas about what they want to do with my earnings and now what is a prudent thing to do with my guns. The targets of those ideas disagree, both because it's there stuff being talked about and because they reject the idea they are part of the problem. Of course guns kill, but not my guns, is the reasoning. Very hard to get past that, especially with the Constitution in the way.
 

Dan

There seems to be quite a bit wrong with your comments. First, most 'liberals' who talk about 'fair share' are also taxpayers, so they are talking about their money as well as yours. Secondly, the nature of any law is to tell some people what they can or cannot do; this is not some exclusive province of liberals. For example, pro-lifers are very keen on telling people what to do with their bodies, and pro-gun folks often argue to control what people do with their stuff (look at the recent laws prohibiting employers from barring guns on their property such as employee parking lots).
 

I'd invite ya'll to think out of the box on this issue. Most gun violence (suicides, mass murders) can be traced to mental illness. Universal, improved access to mental illness treatment. Moreover, if a family member is known to be mentally ill then gun owners should be obligated to secure the weapons under criminal penalty.

The assault weapons ban might be good politics, but ironically a lot of Republicans might go for it because it was pretty ineffective and manufacturers found loopholes. 20 kids getting killed is enough to provoke Congress to act on something. The question is, will it be something effective.
 

"Most gun violence" involves criminal use of guns by people who don't seem to be mentally ill.

Perhaps, we are talking about the mass murder type of things involved in Ct. There, perhaps that is true. On the securing the guns, do we know how the mother (RIP) secured her guns?

She could have done it under lock and key. Her son still might have known where the key was or (if we wish to assume) threatened her & she told him before killing her.
 

Storage method does not make a measureable difference. Surprising, perhaps; I was surprised; I would have predicted the opposite. I would have been wrong. That's why you do research.

Linda L. Dahlberg et al., Guns in the Home and Risk of a Violent Death in the Home: Findings from a National Study, 160 Am. J. Epidemiology 929, 929, 935 (2004).

here
 

That's an interesting study but it studied "Risk of a Violent Death in the Home" so how does it apply to violent death outside of the home by those who could illicitly take the guns outside the home such as thieves or (I'm thinking a small subset) family members of the sort here?
 

Sounds to me like somebody got tired of having an A rating. Maybe he feels like retiring. Well, there probably won't be a shortage of challengers, if he doesn't.

Having read your essay, it seems your fondest hope is that Obama, and the Democratic party, having gained office by vociferously denying any such intention, will use that power to attack a civil liberty you happen to dislike.

You might reflect on the virtue of a cause which can only succeed in a democracy by lying to the voters.

Your problem here isn't the Constitution. Given public opinion in the US, no even remotely representative system of government is going to be able to implement the policies you want. It's not some quirk of governmental structure that's getting in your way, it's public opinion, which has been getting progressively more hostile to your point of view, the longer our national conversation on this topic has gone on.

It's not that we need a conversation, it's that you need to realize we had it, and you lost the argument.

It would also be worth your while to consider a couple other matters:

Black markets represent a floor to how unavailable you can make guns. How's that war on drugs working out for you? I'd say based on that, it's a darned high floor, too.

Getting a momentary legislative majority to enact a law is NOT the same as it being complied with. Especially when a large fraction of the population consider the law an act of tyranny, and won't give up on thinking the policy unconstitutional just because one Justice croaked, and got replaced by exactly the sort of jurist the President had denied wanting to nominate.

I'd pause and reflect, were I you, what you might have expected if, a few years after Brown v Board of Education, the Supreme court had suddenly up and reversed itself, by one vote, and declared the 14th amendment meaningless again. I don't think it would have been pretty. I don't think it would be pretty if you got your way, either.

You're playing with dynamite here.
 

I would like to hear the story behind the fact that Prof. Levinson's op-ed appeared in the Toronto Globe and Mail rather than in a periodical in the United States.

 

Sandy:

After two centuries of neglect, court determination of the scope of the 2A right is very much in its formative stages like the 1A after WWI. Apart from finding a complete prohibition of firearms unconstitutional, I am unsure that the Supremes would do in the future until tested by legislation.

Politically, a supermajority of voters support the right of the law abiding and mentally competent to possess and to a lesser extent carry firearms. We are not a subset of the GOP and we punish elected representatives who attempt to abridge that right. That is why Democrats in Congress have stopped such attempts.

President Obama has no desire to engage in the work of building coalitions to enact legislation. Rather, Obama's MO is to sneak through secret bills and to impose regulatory decrees, neither of which are likely to impose the kind of firearm limits you and others on the left support.

That being said, if someone could figure out a way to keep the mentally ill from obtaining firearms without abridging the right of the law abiding and mentally competent, both a majority of voters and thus our elected representatives would likely support such legislation. The trick is coming up with that idea. Sometimes (actually, most of the time) the blunt tool of government cannot solve a social problem.
 

You're playing with dynamite here.
# posted by Brett : 8:22 PM


Brett, one of your fellow gun freaks just slaughtered 20 small children. This is going to be a tough one for you lunatics to shake off.


 

BB:

There are evil people in the world and your desire to disarm will not protect you.

One trained and armed teacher or safety officer from the local PD could have protected those children.

http://www.volokh.com/2012/12/14/do-civilians-armed-with-guns-ever-capture-kill-or-otherwise-stop-mass-shooters/

"Gun free zones" = kill zones.
 

There are evil people in the world and your desire to disarm will not protect you.

Of course it will. If that kid wasn't carrying guns a couple of 2nd graders could have stopped him.


One trained and armed teacher or safety officer from the local PD could have protected those children.


I suspect most Americans would prefer to get rid of the weapons before they would be willing to see their taxes go up so we can turn our schools into armed camps. However, I might be willing to go along if gun owners were forced to pay a yearly tax to finance that insanity.
 

"Storage method does not make a measureable difference. Surprising, perhaps; I was surprised;"

Perhaps even more surprising, the study does not actually reach that conclusion:

"Whether certain types of guns or storage practices confer greater or lesser risk, or reflect recall and reporting biases when studied, is unclear. Previous research suggests that proxy respondents and nonusers of firearms are not always knowledgeable about the number or types of guns in the household or the storage practice and may be inclined to give socially desirable responses (27–29).

the 95% confidence interval for the adjusted odds ratio for "all guns locked" in table 5 shows an interval of 2.0 to 30.4, which means there is not enough data to reach any conclusion about this from this study.

Other studies, some referred to there, show that safety works and that many people ignore it.
 

Brett's closing sentence in his last comment:

"You're playing with dynamite here."

has to be considered in context and not isolation. The penultimate [still my favorite word] paragraph of his last comment makes reference to Brown v. Board of Education perhaps suggesting that reaction to reversing that decision might be compared to reversing the decision in Heller (although Brett makes no reference to Heller by name). Brown v. Board of Education was a unanimous decision, whereas Heller was 5-4, reading out of the Second Amendment the introductory "Militia" clause. Perhaps one has to go deeper into what Brett has revealed of himself over the years at this Blog and at other blogs. Most recently with the 2012 elections, particularly Obama/Biden v. R-MONEY/R-AYN 2012, it seemed obvious to some of us that Brett was concerned (to put it mildly) with demographic changes that indeed may have been reflected in the results of Obam'as reelection. Post the election, we have a horrendous event in CT from which many of us not directly involved still grieve. Is the context of Brett's closing line in his comment somehow tying in Brown with its attack on discrimination against African American children in public schools and Heller's awakening of the Second Amendment at least for purposes of selfl-defense in the home? Is this part of Sen. Lindsey Grahams's (Cracker, GA) lament during the recent campaign of the lack of enough angry white men? Perhaps one might ask about how to harness these angry white men. Is Brett suggesting an answer?

Justice Scalia refers to the slippery slope in some of his decisions, but not in Heller. But Heller may turn out to be a landslide.

I don't know which stage of grief I am in. But time does heal many wounds. And humor helps the healing process. (See Norman Cousins, "Anatomy of an Illness," 1979.) Daily Kos [yes, I stop there frequently] recently provided a link to Sandy's fellow Texan Molly Ivins' "Taking A Stab At Our Infatuation With Guns" from the Seattle Times, published on the Ides of March, 1993. Perhaps this column of her's should have been filed as a brief in Heller. Molly left us too soon but she provided us over many years of her journalism with the ammunition of the First Amendment's Speech/Press Clauses that did not kill anyone. Who can forget her summation of George W. with the moniker "Shrub."

Context matters.
 

OOPS! Correction: "Sen. Lindsey Graham (Cracker, S. Car.)" GA has enough problems. Sorry.
 

"14th amendment meaningless again"

Brett is back to the racial references. As Scalia noted during the McDonald orals (which I re-listened to last night), most states protect gun rights. CT protects gun rights.

Even if the 2A was repealed, guns rights would not be "meaningless." It would not be the same situation as the segregationist South. Even THEN the 14A wasn't "meaningless" before Brown.

BTW, the legalization of heroin isn't coming any time too. The war on drugs is bad but making heroin legal [or guns even the conservative senator from WVA is wary about] for regular access is not something people want either. So, if you want to use another comparison to wake up the liberals, that might not help THAT much in this context.
 

edit: "most people" don't want legalized heroin or would not be appalled or think (rightly so) that the 2A will be "meaningless" if certain guns are banned or rather only allowed in certain special cases like in hunting areas.

But, to recall, Brett thinks Heller is weak tea, so its allowance of many regulations is of only limited value. I would think that even now he thinks the 2A is woefully underprotected, even by Scalia, Alito and Thomas.
 

interesting take by krugman on the matter
http://krugman.blogs.nytimes.com/2012/12/15/whistling-past-the-gun-lobby/
 

Krugman knows even less about firearms and the people who own them than he does about macroeconomics. May all the congressional Dems running for reelection in 2014 follow his advice.

(Before bb or shag observe that Krugman is an economist, the man won his Nobel in international trade, has never worked in macroeconomics and regularly displays his comprehensive ignorance of the topic on TV and in the NYT.)
 

Blankshot, he's not commenting on firearms or economics. He commenting on polling data. Something about which he, and pretty much anyone on the planet who is not a regular viewer of Faux News, knows more about than you.


 

Let's observe that our yodeler is a DUI legal specialist in the Mile High State (of mind) and not an economist. But our yodeler qualifies for a "No-Balls" prize in Chutzpah. Perhaps in his idyllic lily white (mostly) mountain fortress-community his self-defense concern is with those in the CO urban areas that voted for Obama and carried CO into the blue. Alas, those dreadful demographics and how he might thin out those ranks.

Further with our yodeler's rant challenging Krugman's credentials, perhaps our yodeler is of the Mary Matalin School of Economics that advised Dick Cheney and the latter's sock puppet Shrub, that dynamic duo that in 8 years blew the Clinton surplus and ended with the Great Recession of 2008, with a couple of unpaid tax cuts and two wars in between.
 

bb:

What polling supports the amazingly ignorant Mr. Krugman's comment:

...the pro-gun fanatics are basically the kind of people who think that Obama is a Kenyan socialist atheistic Islamist, and the urban hordes are coming for their property any day now. People, in other words, who already vote 100 percent Republican — and lose elections.

Diarrhea of the mind and mouth.
 

Diarrhea of the mind and mouth.
# posted by Bart DePalma : 4:28 PM


lol

Mitt Romney is going to win in a landslide!!!
 

These poll numbers are great news for John McCain!!

lol

Diarrhea, indeed, you putz.
 

bb:

Translation: Neither you nor Krugman have any polling data and you were lying.
 

No, Baghdad, the polling is pretty clear. Gun nuts vote exclusively for people who lose elections. And the polling is only going to get worse for you now that a fellow gun nut has slaughtered a bunch of small children.
 

Connecticut has, relatively speaking, strong gun regulations. It outlaws "assault" weapons, whatever those are, and requires registration to have handguns. The Newtown shooter's guns were lawfully owned and registered to his mother. He tried to buy his own guns but could not because he couldn't satisfy the Conn. legal requirements. So what additional or different regulations is the author here talking about? What reforms are those really mean Republicans (and rural Democrats) blocking that would make a difference?

Megan McCardle made the excellent point the other day that the only conceivable gun "regulation" that would have prevented the Newton killings and would prevent another event like that would be the complete prohibition of private guns. Of course, that would require (a) repealing the 2nd Amendment and (b) confiscating the 300 million private guns in the US. Neither seems remotely likely, for a variety of reasons.

As far as I can see, all the talk about more or different gun "regulation" is just talk intended to make the talker feel better about himself.
 

Megan McCardle made the excellent point the other day that the only conceivable gun "regulation" that would have prevented the Newton killings and would prevent another event like that would be the complete prohibition of private guns.

That is not true. He could not have butchered all those children with a musket. At most he only gets 1 or 2.
 

This comment has been removed by the author.
 

We have A rated NRA senators talking about possible legislation that is not a "complete prohibition of private guns" and the realization that any legislation is not a panacea is more common sense than "excellent point."

Connecticut has a middle of the road system of laws. As to handguns, curiously the NRA-ILA page says handguns don't need to be registered (permit is needed to purchase).

http://www.nraila.org/gun-laws/state-laws/connecticut.aspx

As to assault weapons, those possessed before 10/93 are allowed. Also, the particular weapons used here were "purchased the weapons legally over a three-year period," so I guess the law doesn't apply there.

http://openchannel.nbcnews.com/_news/2012/12/18/15997539-authorities-establish-timeline-of-gun-purchases-in-connecticut-school-shooting

As to muskets, no need to go back to 18th Century firearms. Any number of weapons wouldn't have been as lethal. Numerous gun owners have ridiculed the need to have all the guns she owned. No need to ban all private gun ownership there.

The article cited noted:

"Federal agents have been examining records at the ranges to see if Adam Lanza had been practicing his marksmanship in the months leading up to the attack, which could indicate that he had planned the massacre well in advance of carrying it out."

This and other details might help determine if there was something more that could have been done. Again, any use of the law in this context can only do so much, but can be of some value, like any laws against illicit conduct.
 

That's an interesting study but it studied "Risk of a Violent Death in the Home" so how does it apply to violent death outside of the home

Good question! Exercise for the student: find the existing research, see to what extent we can answer such a question, where we can reasonably extrapolate, and summarize.

Or you could just carp, and demonstrate how little you care about the facts.

The choice is yours.
 

No need to ban all private gun ownership there.

# posted by Joe : 12:52 AM


I wouldn't ban all private guns. You could have a musket. You could use it for self defense, and it's appropriately Constitutionally approved.
 

jpk, you cited a study to address something, made a big deal about how you did the research & it wasn't really on point. With respect, own up to it. The "exercise" is yours. You brought it up. :)
 

Talking about muskets while using the Internet is a bit ironic.
 

Talking about muskets while using the Internet is a bit ironic.
# posted by Joe : 10:08 AM


Because I have about the same chance of killing a classroom full of children with a musket as I do if I post about it on the internet?
 

This comment has been removed by the author.
 

"Connecticut has, relatively speaking, strong gun regulations. It outlaws "assault" weapons, whatever those are, and requires registration to have handguns. The Newtown shooter's guns were lawfully owned and registered to his mother."

Your third sentence contradicts the first.

"Megan McCardle made the excellent point"

This phrase is oxymoronic.

Essentially no one is calling for a ban on all guns. The demand is mostly for restrictions on the capacity of the magazines and clips. AFAIC, you can have all the single shot, bolt action rifles you wish to own.
 

Joe,
Scalia says the Constitution refers to muskets but not modern weapons. By that language the press means print and paper.
 

"Scalia says the Constitution refers to muskets but not modern weapons. By that language the press means print and paper."

Where does he say this? He does say:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

BB, just as the complications of modern day communication doesn't warrant limiting use to a quill pen, we don't use merely 18th Century weapons in this country.

As Mark Field notes, no need to ban all guns, or even limiting things to muskets, which is not actually a serious thing. It "essentially" would in the real world amount to a gun ban.


 

I misread Delong's satirical post a few months ago.
I've haven't followed Scalia on the 2nd.

Damnit.
 

Justice Scalia's dictum seems to allow the personal ownership of Stinger SAMs, RPGs, hand grenades and fully automatic H&K rifles, all individually carried weapons in modern armies. They are not of course allowed to civilians in the USA or anywhere else.
 

BB, just as the complications of modern day communication doesn't warrant limiting use to a quill pen, we don't use merely 18th Century weapons in this country.

# posted by Joe : 1:57 PM


No shit. 20 small children would still be alive today if we did. And you can't provide a single good reason why we should not limit access to the same "arms" that were in use at the time the Constitution was written.
 

James Wimberley, the opinion separately says that particularly dangerous guns of various types can be banned even if such guns would in some fashion be useful for militia use. It is unfortunate, imho, that people don't actually use Heller against "no limit" gun advocates, since it supports lots of regulation.

BB, I'm not Bart, so you can tone it down a tad. If we only allowed single shot handguns or the sort of rifles used to hunt squirrels, to exaggerate a tad, we wouldn't have the heavy firepower weapons available that killed the children.

Since we are not only going to allow muskets, it is actually a bit offensive (it's time for reality here) to pretend we will only allow muskets. Muskets were badly crafted unwieldy guns using 18th Century technology. There is a middle path between them and the assault weapons that Feinstein wishes to ban.

[BTW, good piece by Laurence O'Donnell on how Ronald Reagan supported the assault weapon ban.]
 

Joe, the technology of the "arms" is completely irrelevant. The Constitution says "arms". Muskets were the "arms" at that time.
 

By the way, if you think that restricting access to muskets is the same as a "real world" gun ban, it means that you think the founders did not believe we should all be carrying guns. Muskets would be just as effective for hunting and self defense today as they were in the 1700s.
 

you cited a study...it wasn't really on point

You know, you're absolutely right, except you're wrong.

I couldn't cite a research study on whether dropping an object in your back yard would cause it to fall to the ground. That is because there is no research study that dropped an object in your back yard.

I could cite some research on the behavior of other dropped objects in other locations. If you prefer to call that "not on target" be my guest. However your carping does not put me on the hook to find a closer study.

That would be up to you. Or you can just complain; that's an option, just not an impressive one.
 

One reason the exact study you're looking for may not exist:

because some folks fear the facts
 

Joe, the technology of the "arms" is completely irrelevant. The Constitution says "arms". Muskets were the "arms" at that time.

The 1A says "speech" and "press." We don't just limit those things to the technology at the time even though changing technology seriously altered how they work in practice. This includes regulating "true treats" like want ads for abortion providers w/o banning the Internet as a whole.

It is very well relevant. The idea is honor right in question & we don't do that by only using 18th Century technology. We factor in changing technology, including how squirrel shooters using better technology than muskets are okay.

---

jpk, not only did the person you directly responded to point out the limits, the study involved home use of weapons. The concern here is use outside of the home, in particular. There very well are studies that study use of guns outside the home. Not doing the research, not sure if any covered storage issues.

But, before being holier-than-thou about doing research, which was gratuitous, you really should find a study more germane. Again, the study is of limited value, but doesn't actually refute the person. Putting aside one study alone is only a single data point.
 

You too are absolutely right, except you're wrong.

Neither you nor he have cited research. You get no complaint on other's citations.

One study is not one data point; you will find most studies including this one collect more data than one point.

The person was not refuted; the point was.

The "limits" in question simply support my assertion: the study found no measureable difference.

Your opinions on gratuity are duly noted and are no substitute for facts.
 

The 1A says "speech" and "press." We don't just limit those things to the technology at the time even though changing technology seriously altered how they work in practice. This includes regulating "true treats" like want ads for abortion providers w/o banning the Internet as a whole.

Joe, it's all about intent. According to every gun nut I've heard the intent was to allow for self defense and hunting. You can hunt and self defend with a musket just as effectively today as you could in the 1700s. The idea that "it's 2012 so we have the right to carry more modern weapons" is complete bullshit.
 

Lesley Stahl: We have heard that a half million children have died. I mean, that's more children than died in Hiroshima. And, you know, is the price worth it?

Secretary of State Madeleine Albright: I think this is a very hard choice, but the price--we think the price is worth it.
----

http://livingunderdrones.org

Killing civilians, killing children.

The US is the largest arms exporter in the world. We have the largest military in the world.

http://www.tomdispatch.com/blog/175338/
An empire of military bases

http://www.tomdispatch.com/blog/175617/
The Secret Building Boom of the Obama Years

Liberal American howling over guns on American soil is like American howling over torture of American citizens while ignoring the torture by Americans of foreigners. The history of The School of the Americas is not news and it was not news when Abu Ghraib was.

"Kill em all let god sort em out"
Support the troops

US laws refer to US citizens because states exist and need to function. But the blind moralizing of American liberals is just appalling. That's stupidity, the banality, of Erik Loomis's rants is that to be anything but a moral relativist he should be screaming for the head of every president that ever was, and for every graduate of West Point. Valerie Plame is a liberal hero, but if you want to play the priest every employee of the CIA should be in jail.
 

This comment has been removed by the author.
 

"it's 2012 so we have the right to more modern rights is bullshit"

You're making Scalia's argument about everything but guns. That was DeLong's point in his satire.
And gun rights activists (now SCOTUS) make reference to self-defense in the context of the Framers. There's no record of self-defense being discussed at that time.

I'll repeat:
http://www.sciencedaily.com/releases/2009/09/090930121512.htm

Sep. 30, 2009 — In a first-of its-kind study, epidemiologists at the University of Pennsylvania School of Medicine found that, on average, guns did not protect those who possessed them from being shot in an assault. The study estimated that people with a gun were 4.5 times more likely to be shot in an assault than those not possessing a gun.

The study was released online this month in the American Journal of Public Health, in advance of print publication in November 2009.
“This study helps resolve the long-standing debate about whether guns are protective or perilous,” notes study author Charles C. Branas, PhD, Associate Professor of Epidemiology. “Will possessing a firearm always safeguard against harm or will it promote a false sense of security?”

I miss the old days when the ACLU had no position on gun rights. It's a political fight how we interpret a vague text.
 

"The "limits" in question simply support my assertion: the study found no measureable difference."

no, it did not and if you read the paper the conclusion is: ""Whether certain types of guns or storage practices confer greater or lesser risk, or reflect recall and reporting biases when studied, is unclear. Previous research suggests that proxy respondents and nonusers of firearms are not always knowledgeable about the number or types of guns in the household or the storage practice and may be inclined to give socially desirable responses"

"unclear:" There is insufficient evidence from that study data to conclude anything.
 

D. Ghirlandaio: In a first-of its-kind study...

Can you say junk science?

The study authors do not distinguish between situations like being ambushed in a drive by shooting while carrying a gun in your waistband and home defense.
 

Bart, are you a Blood or a Crip?
 

Maybee it's because I'm from Europe and therefore don't know that much about the US, or maybee I just have the outside observers insight.

Either way, I fail to see why the US is considered a "Democracy". To me, a two party state isn't that much different from a one party state.

How can a mere two parties possibly represent 300 million people? Whereas in any other democracy on the planet you usually have at least half-a-dozen parties (the British being the only other exception that comes to mind).

I don't think it's possible.

I think that political power is so far removed from ordinary people that it is basically a nation of the elite, by the elite and for the elite. The "elite" in this case being the usual suspects - people with money and power.

Ordinary people don't seem to count for much. As evidence I submit the CIA world fact book. Compare the US to western european countries like France or Germany and the US looks like some Banana Republic in comparison.

Infant mortality and similar basic indicators are just utterly nuts for what is supposed to be a developed country.

The US is the only nation I know of that does not have a national health care system - despite the existence of what I understand is overwhelming public support for it. All this private crap is just that, crap. And it shows in the statistics.

Also, that constitution of yours was a fine document - when it was written. I think it holds alot of things that are still relevant today. However, the fetishistic reverence it is held in, bordering on religious fanaticism is frankly disturbing.

Nothing made by man is perfect, certainly no political document that is inevitably the result of endless compromise. It has served well for many years, but for the sake of the american people and the well being of the entire nation - and not just america - but the well being of the entire world - it is time to move on and either replace it or improve it.

America needs actual democracy.

Everything I've seen coming from across the Atlantic so far indicates that all this stuff about guns, gays and what not is just a smoke screen for the real issue. The fact that what little democracy there was has been undermined and power has been concentrated into the hands of a unelected powerful few.

The entire nation has regressed politically to the days when the aristocracy ruled and the serfs suffered and nobody cared because they didn't matter.

I can't emphasize enough how important it is that you fight for true democracy. Everything is at stake and you don't even realize it. Good luck! You are going to need it...
 

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