ACLU, Alexander Hamilton, Andrew Napolitano, Applied Economics, Assault Weapons, Background checks, Defensive Gun Uses, DGUs, Due Process, Eugene Volokh, Fully-Automatic Guns, Glenn Reynolds, Gun Blame, Gun-Free Zones, Individual Right to Bear Arms, James B. Jacobs, Killing Zones, Mass Shootings, Mizzou, Ninth Amendment, Ordinary Constitutional Law, Pink Pistols, Pulse Nightclub, Rolling Stone Magazine, Second Amendment, Semi-Automatic Guns, Soopermexican, Terror Watch List, Trey Gowdy, Unenumerated Rights, Well-Regulated Militia
Passion for various forms of gun control was inflamed by the tragic murder of 49 patrons (with 53 injured) at the Pulse nightclub in Orlando, Florida in the early hours of last Sunday morning. A man with ties to radical Islam was the perpetrator, but that’s not convenient to the left’s narrative, so scapegoats for the massacre run the gamut from guns to transgender bathroom laws to Christian “intolerance”, as opposed to the intolerance of a bat-shit crazy Islamic extremist. The Soopermexican notes the following:
“It’s really amazing how liberals [sic] are finding a way to blame Christians for the actions of the Orlando terrorist, who was, 1) gay, 2) Muslim, 3) Democrat, and 4) racist. … But then that’s what they did that time when a crazed liberal gay activist tried to shoot up the Family Research Council. Remember that? He literally said he wanted to kill everyone and then ‘smear Chick-Fil-A in the victim’s faces.’“
In case there’s any misunderstanding, I include that quote NOT to denigrate gays, Muslims, or Democrats, but to emphasize the absurdity of blaming Christians for the Orlando shootings. To get a sense of the infectious silliness going around in leftist circles over the slaughter, read this account of a vigil for the Pulse victims held in Columbia, MO by several student organizations near the main campus of the University of Missouri, at which Latino activists scolded the gay activist crowd for being “too white” and for paying insufficient attention to racial issues. Of course, it’s true that many of the Orlando victims were Latino, but after all, the vigil was for them, too, not just the white victims.
The left despises private gun ownership, or perhaps private anything except for their own privileges. Gun-blame feels so compassionate to them, and in this case, it conveniently avoids any mention of the killer’s ethnicity and radical ideology. Agitators say that “assault weapons” must be banned, but they are generally unable to articulate a precise definition. More thorough background checks are another favorite “solution”, but that’s based on an article of faith that such checks would be effective. Without proof that background checks actually work, and there is none, it still seems like a good idea to the “do something” crowd. Then, there are those whose real agenda is to ban guns outright, despite the fact that gun bans are counterproductive and infringe on the rights of law-abiding citizens.
Most of those who wish to ban assault weapons think they are referring to guns that fire repeatedly when the trigger is pulled. In other words, they believe that assault weapons are fully automatic weapons. But fully automatic weapons have been banned in the U.S. since 1934! Semi-automatic weapons require the trigger to be pulled to fire each bullet but load the next bullet automatically. James B. Jacobs of the NYU School of Law gives a fairly detailed description of the distinction between so-called assault weapons and other firearms, which essentially comes down to appearance:
“‘Assault weapons’ are semiautomatic firearms designed to look like military rifles. They are not military rifles—sometimes called assault rifles24—such as the U.S. Army’s M-16 … that can be fired in automatic or semiautomatic mode, or Russia’s AK-47, Germany’s HK G36 assault rifle, and Belgium’s FN Fal assault rifle. In contrast to assault rifles, these semiautomatic look-alikes do not fire automatically. Functionally, they are identical to most other semiautomatics. … Practically all modern rifles, pistols, and shotguns are semiautomatics; non-semiautomatic long guns include bolt action, slide action, and breach loaders; non-semiautomatic pistols are called revolvers.“
Jacobs discusses the futility of a ban on assault weapons and offers accounts of some historical assault weapon bans that were ineffective. Those outcomes were due in part to the flimsy distinction between assault weapons and other guns, as well as the fact that assault weapons are used in a relatively small percentage of gun crimes and in few mass shootings (also see here). This is corroborated by a recent paper appearing in the journal Applied Economics in which the authors report:
“… common state and federal gun laws that outlaw assault weapons are unrelated to the likelihood of an assault weapon being used during a public shooting event. Moreover, results show that the use of assault weapons is not related to more victims or fatalities than other types of guns. However, the use of hand guns, shot guns and high-capacity magazines is directly related to the number of victims and fatalities in a public shooting event. Finally, the gunman’s reported mental illness is often associated with an increase in the number of victims and fatalities.“
Another contention made by ill-informed opponents of gun rights is that mass shootings are never stopped by citizens with guns. That is simply not true, but it is good propaganda because foiled shooting attempts tend to receive much less notice than actual mass shootings. This article by Eugene Volokh provides a list of confirmed incidents in which a mass shooting was averted by a citizen carrying a gun. This situation has its counterpart in the left’s denial that defensive gun uses (DGUs) occur more frequently than gun crimes. DGUs are difficult to count because they often go unreported and may not even require the firing of a shot.
Another mistake is the continued advocacy for “gun-free zones” (such as the Pulse nightclub) within which even guards are not allowed to carry firearms. Andrew Napolitano rightly labels these “killing zones”.
More stringent background checks are another favorite solution of gun-rights opponents. However, actual background checks have done nothing to stop the most vicious mass shootings that have occurred over the past few years. This is another testament to the naiveté of relying on government to protect you, in this case, a government information system. Sheldon Richman has explained the futility of background checks thusly:
“… people with criminal intent will find ways to buy guns that do not require a check. Proponents of background checks seem to think that a government decree will dry up the black market. But why would it? Sales will go on beyond the government’s ability to monitor them. Out of sight, out of government control. … Thus the case against mandating ‘universal’ background checks withstands scrutiny. This measure would not keep criminally minded people from acquiring guns, but it would give a false sense of security to the public by promising something they cannot deliver.“
Advocates of assault weapon bans and wider background checks are inclined to characterize gun rights supporters as paranoid. As Volokh explained last year, however, there is strong reason to believe that the pro-gun lobby has correctly assessed the motives among the opposition as more extreme. Volokh notes that an ineffectual ban, like the 1994-2004 assault weapon ban and many other gun bans internationally, cannot outweigh the interests of society in protecting a basic liberty.
And as to basic liberties, Rolling Stone offers a wonderful illustration of the left’s disregard for individual rights and constitutional protections in an angry missive to gun rights supporters: “4 Pro-Gun Arguments We’re Sick of Hearing“. The author not only holds the Second Amendment in distain: vogue left-think has it that the entire Constitution is tainted because the framers were unable to agree on abolition 230 years ago (at a time when slave ownership was commonplace among the aristocracy). The fact that many of the founders were sympathetic to abolition makes little difference to these critics. They say the Constitution is not a legitimate framework for governance, despite its extremely liberal point of view on issues of individual rights. Apparently, Rolling Stone would be just fine with abrogating the free speech rights of gun advocates.
Over the past 20 years or so, case law has increasingly viewed the Second Amendment as “ordinary constitutional law“, meaning that it protects individuals’ right to bear arms. The “well-regulated militia” limitation written into the Second Amendment is no longer accepted by the courts and most legal scholars as a limitation on individual rights. The militias it references were state militias raised from the civilian population, and the armaments they used were generally owned by the same civilians. In any case, there is no time limitation imposed on gun ownership by the Second via that clause. An earlier discussion of these issues was provided by Eugene Volokh in “The Commonplace Second Amendment“.
All this is quite apart from the Ninth Amendment, which states that nothing in the Constitution should be interpreted as limiting rights that are unenumerated. That would include self-defense, and ownership of a gun for that purpose is well advised. The Wikipedia entry on the Ninth Amendment says:
“One of the arguments the Federalists gave against the addition of a Bill of Rights, during the debates about ratification of the Constitution, was that a listing of rights could problematically enlarge the powers specified in Article One, Section 8 of the new Constitution by implication. For example, in Federalist 84, Alexander Hamilton asked, ‘Why declare that things shall not be done which there is no power to do?’“
In other words, we do not derive our rights from government or the majoritarian passions of the moment.
Finally, the debate in Congress this week has centered on whether individuals on the FBI’s Terrorist Watch List should be denied the right to purchase a gun. That might seem like a no-brainier, but it raises legitimate concerns about civil liberties. There are about 700,000 people on that list (some reports put the number much higher), many of them U.S. citizens; some of them are there by mistake. Individuals on the list have not been convicted of a crime and are therefore entitled to due process under the Fifth and Fourteenth Amendments. Watch Rep. Trey Gowdy’s passionate defense of due process to a DHS official this past week. When the ACLU and congressional republicans agree on the tyrannical nature of a restriction like this, you just can’t dismiss it out-of-hand. Such a change in the law cannot be justified without a fast and effective process giving citizens on the list a right of challenge.
The left is bereft of competence on the matter of guns, gun rights and the Constitution generally. They consistently demonstrate a dismissive view of individual liberties, whether that involves guns, religion, property, speech or due process. The tragedy in Orlando deserves more than ill-informed, knee-jerk conclusions. The most productive approach to terror risks involves individuals able to protect themselves and help watch out for others. That’s consistent with the position of the gay gun-rights group Pink Pistols. More power to them!