Second Amendment Challenge

A study of the current public debate (including comments generated from Legislation on High Capacity Magazines) shows that the arguments by pro-gun control advocates generally fall into one or more of three categories. The first category is hyperbolic, exaggerated and overheated prose.

For example, E. J. Dionne, Jr., writing for The Washington Post, believes that advocates of the Second Amendment hold “peculiar” views, that they are “extremists,” and that their rhetoric has been instrumental in blocking legislation that would have saved lives.

I came to realize, partly from e-mail exchanges with ardent foes of gun control over the years, that the real passion for a let-anything-go approach to guns has little to do with culture or hunting. It is rooted in a very peculiar view of how America has maintained its freedom. Rep. Ron Paul, as is his wont, expressed it as plainly as anyone.

“The Second Amendment is not about hunting deer or keeping a pistol in your nightstand,” the Texas Republican declared in 2006. “It is not about protecting oneself against common criminals. It is about preventing tyranny. The Founders knew that unarmed citizens would never be able to overthrow a tyrannical government as they did. . . . The muskets they used against the British army were the assault rifles of that time” …

The approach to guns, violence and “tyranny” promoted by loud voices on the right has been instrumental in blocking measures that could at least have contained the casualties in Tucson – or at Virginia Tech or Columbine. Extremism in defense of feeble gun laws is no virtue.

Dionne doesn’t really know any of this as we will discuss further, but while the Washington Post attempts to frame their anti-gun views in respectable arguments, a discussion thread at Media Matters (focused on the so-called Second Amendment Remedy) turned quickly into a lambaste of “right wing extremists,” and one commenter weighs in by saying that “the “Second Amendment Remedies” remark is one that even the most hypnotized wingnuts won’t generally defend.”

But Ken Klukowski, a research fellow at Liberty University School of Law, observes:

This right has two purposes. One is so Americans can defend themselves from criminals. Another — talked up by the Tea Party but ridiculed by the liberal elite — is that the Second Amendment protects citizens against our own government.

The Supreme Court declared in its landmark 2008 D.C. v. Heller decision — a decision praised by Rep. Gabrielle Giffords, D-Ariz. — that the Second Amendment was enshrined in the Constitution because when vast numbers of citizens have guns and know how to use them, “they are better able to resist tyranny.”

When serving on the California Supreme Court, now-D.C. Circuit Judge Janice Rogers Brown observed, “political writings of the [Founding Fathers] repeatedly expressed a dual concern: facilitating the natural right of self-defense and assuring an armed citizenry capable of repelling foreign invaders and quelling tyrannical leaders.”

Ninth Circuit Judge Diarmuid O’Scannlain explained the Second Amendment “right contains both a political component — it is a means to protect the public from tyranny — and a personal component — it is a means to protect the individual from threats to life or limb.”

The most sobering words come from Judge Alex Kozinski of the 9th Circuit, who wrote, “the simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people.”

The son of Holocaust survivors, Kozinski continued, “The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies seem today, facing them unprepared is a mistake a free people get to make only once.”

When leftist rhetoric suffers from a refusal to do even the most basic homework, it’s difficult to take it very seriously. The second category into which much rhetoric seems to fit is one of a fundamentally flawed mechanical understanding of firearms and how they work.

Robert Rector, writing for the Pasadena Star-News, says that he’s ex-Army, but then treats us to this confused set of plans for gun control:

The Second Amendment is a reality. We have the right to keep and bear arms and I do not wish it repealed … I do believe we need to reinstitute the federal assault weapons ban, signed into law by President Clinton and allowed to expire under President Bush. It would, among other things, have prohibited the magazine which allowed the shooter to fire 33 rounds before he was stopped.

I believe we need effective gun control. The right to bear arms doesn’t allow you to own nuclear weapons, surface-to-air missiles or flame-throwers. We should add to that list semi-automatic handguns, super-sized ammo magazines and concealed weapons of any kind.

Rector doesn’t wish the Second Amendment to be repealed, but he wishes to ban semi-automatic handguns, high capacity magazines and “concealed weapons of any kind.” How exactly one could allow Second Amendment rights and yet ban the ownership of any weapon that could be concealed isn’t explained (or obvious). Perhaps Rector wants us to return to single action pistols (that aren’t concealable – if there is such a thing), but he justifies this by denying a right to own a nuclear weapon.

The third category into which much of the rhetoric falls is illogical. Most proponents of a ban on high capacity magazines confuse causation with correlation, and one may include the “excluded middle” in their list of problems. If high capacity magazines weren’t so readily available, they say, crimes like this wouldn’t occur. But this hasn’t been demonstrated, and there are other options. The shooter could simply become skilled at rapid magazine changeout (and see here and here too). Or perhaps since criminals don’t care about the law, they might choose to steal a high capacity magazine or obtain one on the black market. Another option might be to become skilled at the use of tool and die equipment and fabricate their own (after all, it’s only a box with a spring). Yet another option would be to carry two or more handguns, with rounds chambered, so that magazine changeout would be unnecessary. The reader may be able to come up with more options.

Besides being unable to demonstrate that a ban on high capacity magazines would effect the desired outcome, it is a particularly ghoulish and creepy argument anyway to say that it’s okay for a shooter to kill ten people in a crowd (the proposed limit on magazine capacity), but greater than ten deaths is not acceptable. The threshold is completely arbitrary and totally capricious.

One may add to the list of logical fallacies ad hominem insults and an appeal to authority (the genetic fallacy). The leftists are especially crowing about alleged gun rights advocates supporting the proposed ban on high capacity magazines. Vice President Dick Cheney may be open to the idea, although he doesn’t explain what he thinks it will accomplish. And Peggy Noonan even recommends that Obama pursue the idea, while observing that the GOP likely won’t fight it in the Congress.

What civilian needs a pistol with a magazine that loads 33 bullets and allows you to kill that many people without even stopping to reload? No one but people with bad intent. Those clips were banned once; the president should call for reimposing the ban. The Republican Party will not go to the wall to defend extended clips. The problem is the Democratic Party, which overreached after the assassinations of the 1960s, talked about banning all handguns, and suffered a lasting political setback. Now Democrats are so spooked they won’t even move forward on small and obvious things like this. The president should seize the moment and come out strong for a ban.

Of course, Noonan gives us yet another problematic argument, i.e., assuming that the Constitution is discussing needs rather than rights. The road down which she turns is a dastardly one indeed, since Noonan may be not able to convince an empowered government that she needs an automobile for travel or a computer for writing her commentaries.

So here is a challenge – a Second Amendment challenge. Give us an argument by which we may conclude that a ban on high capacity magazines (or semi-automatic handguns) is constitutional and will effect the desired outcome. Do so without using hyperbolic, exaggerated language and without insults, and make it demonstrably logical in its construction. In all of my study I have yet to run across such an argument.

Source. See the original for links






Boxer to Introduce "Common-Sense" Concealed Firearms Act of 2011: "U.S. Senator Barbara Boxer (D-CA) today announced that next week she will introduce the Common-Sense Concealed Firearms Act of 2011, which would require all states that allow residents to carry concealed weapons in public to have minimum standards for granting permits. Senator Boxer said, "The tragic events in Tucson earlier this month are a reminder of why we need common-sense gun laws. This measure will establish reasonable permitting standards for Americans who wish to carry concealed firearms. According to a recent poll, more than 60 percent of respondents believe there should be a reasonable permitting process for those who wish to carry concealed firearms. Senator Boxer's legislation would require all states that allow residents to carry concealed weapons to establish permitting processes that would include meaningful consultation with local law enforcement authorities"


Gun rights supporters decry ATF nominee: "Three days before the mass shooting in Tucson reignited the gun-control debate, the White House renominated a Chicago law enforcement official whose actions have riled the gun rights movement to head the country's firearms enforcement agency. Andrew Traver — who would head the Bureau of Alcohol, Tobacco, Firearms and Explosives— leads the agency's Chicago office, where he has been tagged an anti-gun zealot by some gun rights advocates who oppose his nomination."