Tag Team: A Dangerous Right

Looks like Saul Cornell and Dennis Henigan have gotten together to disparage the Second and Fourteenth Amendments in this months edition of the National Law Journal. Saul Cornell argues the 14th Amendment has no problem with disarmament, as long as it’s done equally:

There are some facts that are beyond dispute. Although there is ample evidence that the 14th Amendment was widely understood to bar the selective disarmament of blacks by Southern governments, there is absolutely no evidence to suggest that anyone believed that the 14th Amendment prevented the states from passing neutrally applicable gun regulations designed to promote public safety.

The argument would seem to be that because the post-reconstruction courts effectively eviscerated the 14th Amendment, so that Jim Crow could properly imposed on the South, that of course means there was never intended to be any right-to-bear arms, by blacks or anyone. This strikes me as a weak argument given our modern understanding of the amendment, and just so there’s no misunderstanding about the case which Saul Cornell cited, you can read about it here.

Backing up Saul Cornell is Dennis Henigan, who says that guns are such a menace to society that it justifies essentially ignoring, or largely ignoring, one tenth of the Bill of Rights:

There is at least one respect in which the new right to have guns is vastly different than other rights. A wealth of empirical evidence shows that the exercise of the right to possess guns increases the risk of harm to individuals exercising the right, to their families and to the community at large. However the Court decides the incorporation question, its discussion of Second Amendment issues in McDonald and its future Second Amendment jurisprudence must recognize that the Second Amendment is, indisputably, the most dangerous right.

I don’t know about that Dennis. Ideas can be some of the most dangerous things humans can generate, and speech is the primary mechanism by which these ideas are spread. I mean, how many people did this idea kill?  Or this one? How long did this idea relegate a significant portion of the American population to second class status? This man’s speech and a set of box cutters killed 3000 Americans and dragged us into a decades long war.

Gun are potentially dangerous. No one denies that. But it’s bad ideas, conveyed by speech, that’s responsible for the worst humanity has to offer. In this country, we protect speech, of both good and bad ideas, in the belief that the best way to counter bad ideas is to challenge them with good ones. Does that always work? We accept a lot of risk allowing free speech in society, and most Americans, including me, wouldn’t have it any other way. If the best defense against bad speech is good speech, maybe it’s not too far of a stretch to suggest that the best defense against bad guys with guns is more good guys with guns. Why is that so alien to our constitutional framework?

19 thoughts on “Tag Team: A Dangerous Right”

  1. Cite, or it didn’t happen Henigan.

    Show me peer-reviewed, published in reputable journals, confirmed by other researchers, studies that support your claims of (statistically significant) “empirical evidence” or STFU and GBTW.

    I’ll wait, I have to catch up on my Tolstoy anyway…

  2. Cite away and be damned; not negotiable. All rights are dangerous; that’s why we made a list. If a million a year were dying because someone found a way to abuse a right, that right would still be mine. “Science” is meaningless here.

    The Fourth and Fifth cost the taxpayers billions a year, for all those warrants, documents, trials, juries — really, there’s a significant saving available there. And some guilty go free!
    That’s dangerous!

    Let us run these utilitarians out by the most efficient means available (see, that’s a Mill joke).

  3. I agree, the right is the right. Fiat Justitia Ruat Caelum.

    My point was that he is trying to make a utilitarian argument to sway the uninformed, but can’t even do that when pressed. He loses both deontologically and empirically.

  4. There’s a big difference between the tangible object gun and the intangible speech and ideas.

    I got a big kick out of Mr. tough-talk Carberry saying STFU because there were no citations. Then thirdpower pointed out there were, but of course they don’t count because they’re, “Almost universally funded by the Joyce Foundation.” I wonder what that “almost” means.

  5. MikeB can’t figure out what ‘almost’ means.

    Not surprising. He has admitted he can’t tell facts from fallacy as well.

    But he considers reports funded by groups w/ political agenda’s to be more legitimate that groups like the FBI, BATFE or CDC because they’ve been bought off by the NRA.

    Right MikeB? Isn’t that what you claimed?

  6. Also Sparky is getting that whole “Rights” thing a bit confused.

    The right to keep and bear arms just grants me the RIGHT to keep and carry guns. I have to get off my ass and supply myself with said guns. The constitution simply states that the government is not allowed to get in my way on this issue.

    Of course the nanny-staters now are talking about the “Right” to Healthcare, which means all health-care is “Free” and provided.

    Which of course is bullshit.

  7. There’s a big difference between the tangible object gun and the intangible speech and ideas.

    You tell me I should take you seriously, but are still doing the exact same thing I called you out on months ago: finding any difference at all between the compared quantities and simply stating that the difference exists, as though the observation dismisses the comparison.

    A gun is made out of metal and plastic, and an idea is made out of electricity and neurotransmitters. This dismisses the observation that both can be extremely dangerous, but that a free society doesn’t arbitrarily restrict others’ choices out of fear of getting hurt?

    In other words: Yes, there’s a difference. That’s what makes it an analogy. If you couldn’t point to a difference between them, it’d be a tautology.

    This kind of childish anti-logic is why I stopped reading your blog, man.

  8. The only reason they’re pushing this argument is that they perceive Illinois has a constitutional weakness in its bill of rights. (See, now that the Heller case shows that someone in DC might be somewhat friendly to liberty, states’ rights are suddenly an issue.)

    And they’re not wrong to pick this strategy, since Section 22 of the Illinois Bill of Rights is basically self-canceling. However, disarmament also requires violation of rights such protection from self-incrimination, protection from illegal searches and seizures, guarantee of trial-by-jury (before you’re punished again), as well as general hostility toward life and liberty, and an unconstitutional and absolutist permanent barring of rights should some minor contraband rule be broken.

    I certainly enjoy the fact that Alan Gura is making arguments completely consistent with his last case, while the disarmers scramble to assemble the slipshod utilitarian argument in whichever manner they feel will deceive the audience.

  9. Mike, you addlepated ass, the right to keep and bear arms is not a right to be handed a gun any more than the right to freedom of expression is a right to a server, a PA system or a printing press.

    Right of self-defense, right of free expression, both are intangibles; the means to exercise either right is a concrete reality, a physical thing.

    Your own cowardice does not justify restricting other people’s freedoms, any more than my prissiness means you shouldn’t be able to by the kind of sick, twisted porn you are so fond of.

  10. Mike,

    Those studies have fundamental procedural issues.

    Kellerman doesn’t actually conclude what Brady claims it does (for one it counts only deaths, not crimes prevented without violence) and there are correlation /= causality problems with Cook and Hemenway (for example the CDC study quite clearly shows that there is no demonstrable causal relation between lawful possession and crime rates).

    Thus the request for “peer-reviewed, published in reputable journals, confirmed by other researchers, studies that support your claims of (statistically significant) “empirical evidence””.

    Merely rehashing flawed and contradicted partisanly developed nonsense does not a sound empirical argument make. Henigan relies on most people not reading the studies and their critiques.

  11. All rights are “dangerous” to some point of view or another. Freedom of religion is dangerous to those who believe that we must worship their particular deity, or else. Freedom to assemble is dangerous to those who would terrorize us singly.

    The list goes on and on and on: someone, somewhere, wants to lay an invalid claim at our feet in the face of our rights..

    If there weren’t dangerous, they wouldn’t be useful.

  12. Roberta, You say we’re talking about the right to self-defense, but we’re not. We’re talking specifically about gun rights, the right to bear arms. You’re the big 2nd Amendment champion, do I have to quote it to you?

    Elmo, You say that’s why you quit reading my blog. Maybe, or maybe you’re just like some of the others and can’t accept someone disagreeing with you.

  13. My point.

    Sebastian makes a strong analogy, and you answer with a trivial quibble.

    I point out the faults in that quibble, and you answer with a contentless ad hominem.

    You’ve stopped giving any reason to take you seriously.

  14. http://www.snowflakesinhell.com/2010/02/19/heeding-gods-call-protest-gun-shop-this-weekend/#comment-57676

    You say here: “I say, reasonable people can indeed have honest dialogue with no evidence at all. They can easily talk about controversial issues, especially ones in which conflicting “proof” is offered on both sides.

    Sometimes it’s less honest to insist upon proof instead of admitting obvious conclusions.”

    What’s hilarious is not only have you abandoned facts and evidence (because they disprove your ideas), but it appears you’ve also abandoned the “Honest Dialog” that you claim to champion.

  15. Could it be helpful if we were to check State laws written right after the 14A was ratified to see if any States passed laws infringing the general (I. E., non-discriminate) right to bear arms. If that were possible and practicable, I should think it would shed some light on the validity of Cornell’s conclusion?

    If say Illinois passed a non-discriminating restrictive handgun law in 1869, and it was never challenged by the courts, then I think Cornell may have a point. If, however, such a law was passed and struck down, Cornell would be toast.

    Absent such obvious examples, either argument becomes debatable.

    Stephen Halbrooke (sp?) wrote a wonderful book on the South’s gun laws after the War for Southern Independence and I seem to recall they all discriminated against freedmen and the 14A was proposed by Sen. Bingham as a remedy to that discrimination.
    This would seem, on the surface anyway, to support Cornell’s claim. Support, but not prove!

    An important point that Cornell misses, though, is that if he is correct, that the 14th does not require that unalienable rights must be recognized by the States, but only that any rights that the States choose to recognize must be equally recognized for all persons regardless of race, then every Supreme Court decision striking down State and local laws on pornography, school prayers, etc., must be overturned because the States could simply not recognize an unalienable right to free speech and religion, as well as arms, as long as it wasn’t discriminatory on the basis of race. I think Mr. Cornell would wince at that logical and inescapable conclusion to his argument. .


  16. mikeb: sure, lets see if you can get it right. And I still say the right to keep and bear arms is as “abstract” as the right to express yourself freely.

    Also, you’re still a jerk with vile habits. Liking it in Italy?

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