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Is Losing Big Better Than Losing Small?

Other bloggers have linked Publicola’s post about the dangers of compromise, so you might have seen it already. I had to wait until I had time to address it. Publicola is argues the no-compromise position, but he’s always been a reasonable fellow, and willing to make arguments instead of flinging insults, so I respect him for that. His post is probably one of the best defenses of the no-compromise position I’ve read:

In the short term it seems to help by lessening the damage done by a law, but in the long run it makes a law harder to repeal or have ruled unconstitutional. Further it makes intensifying the effects of a law by further additions over time more plausible.

Read the whole thing. One thing I would point out is that the courts weren’t much of an option for us until 2008 for federal gun laws, and not until 2014 for state gun laws (at least in federal court). So prior to 2008, or at least prior to the retirement of Sandra Day O’Conner, the courts were never going to rule anything unconstitutional on Second Amendment grounds because they didn’t have the votes for it.

But that’s not to say it’s a bad point Publicola makes. I’d feel a lot better challenging a five round limit in court than a fifteen round limit, because the five round limit is more apparently unreasonable. But I still wouldn’t feel good about either, because I know what arguments the other side will make and how federal judges mostly think about the issue. For the foreseeable future, the courts are a crapshoot when it comes to challenging gun control. If the courts are ever stronger defenders of Second Amendment rights, I think this point will be completely valid, and it might make sense to remain obstinate, knowing the courts will more likely have your back with a more intrusive law.

I’d also concede that when we accepted the position of instant background checks, we made our position for arguing against expanding them more difficult. We absolutely did. But by the same token, it’s hard to see how we’d be better off as a community if we had been stuck with 7-day waiting periods, as the original Brady Bill originally wanted, or been stuck with the local police, given later non-commandeering doctrine development by the courts, compiling their own registries using the background check applications as originally envisioned by the early versions of the Brady Bill. It’s also difficult to see how we’d have been better off with an assault weapons ban with a one-feature test, no sunset, and a five round magazine limit (which is what they wanted, originally). Most of the current “Gun Culture 2.0” never could have developed and flourished under those circumstances, and a lot of people would have moved on.

The ultimate problem with the argument is that it assumes everyone stay outraged and angry, and will keep fighting. Some will, no doubt, but many won’t. They will exit the gun community. More importantly, their kids will likely not be part of it. With the right law, they can destroy or heavily curtail the gun culture. Look at New Jersey, for instance. Most of their worst New Jersey gun control laws date back in 1960s, and while there are still impassioned people fighting over there, for the most part New Jersey’s laws have succeeded in destroying their gun culture to the point where they are pretty much at the mercy of the legislature. California and New York are also in the same boat. I don’t think the gun culture in any of those states is better off for having lost big.

19 Responses to “Is Losing Big Better Than Losing Small?”

  1. DevsAdvocate says:

    Here’s my question: up to date, very little of gun legislation on the Federal Level has been of “compromise”, but more akin to being forced upon us.

    How about this: What if we trade Universal Background Checks (in some form) for a repeal of the more annoying NFA provisions (silencers, SBS, SBR, and autos)? Or trading universal checks for an elimination of the pseudo gun registry the ATF operates by removing firearm type and serial numbers from the 4477?

    Thoughts?

    • Sebastian says:

      The problem is that UBC = universal registration. You have to figure out a way to deal with that before that’s something you can concede to get something else. Also, I don’t think there’s currently any willingness in Congress to touch the NFA, and if there was, silencers would come first. I would not suggest trading UBS, even one without registration would be a good deal for any of those things. I would not trade that for, really, anything short of gutting the Gun Control Act.

      • Kirk Parker says:

        I’m not in favor of DevsAdvocate’s proposal, necessarily, but what part of it didn’t you understand? It was trading accepting UBC’s for sales in exchange for getting rid of having to specify exactly what was being bought.

        Actually that might not be a bad tradeoff, all the NCIS says is “this person is OK to buy a firearm” and all the record searches at the feds’ end can show is “somebody asked if this person was OK to buy a firearm”.

  2. Scott Connors says:

    My objection to compromise is that it’s never really been a compromise, but more of a “if you give up this now, we won’t take that–until later, when we can.” It’s never a case where they give up something to get something, as for trading universal background checks for national recognition of concealed carry licenses, or a ban on semiautomatic “assault weapons” for a repeal of the Hughes Amendment _and_ the CLEO signature, with no transfer tax on semi-auto only versions and a limit on how long they have to complete the transfer, to give two hypotheticals. Instead, they take two steps forward and one step back.

    • DevsAdvocate says:

      I would say 2 steps forward and 1 step sideways. Universal background checks, when done right, don’t do much to hurt us. But if we can get something out of the deal moving our goals forward, then its a net win.

  3. Dave says:

    The potential issue with trying to make a trade is that we would get punked like we did in ’86 when FOPA passed. Rather than try to horse trade, we should be 1) pressuring NRA-ILA and 2) trying to get single issue “patches” attached to critical bills like Sen. Coburn did with the NPS gun ban repeal. We have the votes for reciprocity, there is zero excuse acceptable for it not passing both houses this year. At a very minimum, we need strong federal protection from the communist regimes that require possession permits and don’t grant non residents permits.

    In fact, there is a tangible benefit to focusing our attention on legislation, rather than the courts. Some of circuits only acknowledge Heller & McDonald as supporting a limited right to keep arms, only within the home and a right to bear some arms only in the home. Others have read the rulings more completely and not been so petulant. Gun cases in the 2nd & 4th circuits for example are going to fail because these circuits have not accepted their collectivist view of 2a was wrong. By working on the laws we can leave less and less wiggle room for the courts to rule badly.

    I think if I were living in one of the extra-American fiefdoms I would find it a tough sell that my 2.0 gun group compromised away my rights, but on the other hand if the original legislation passed, I’d probably feel worse off. Most of us are selfish, and actually want to live through some improvements in our lifetime. If you live in MD, NJ, NY, MA, your perspective on improvements is how much of your “right” you lose every year. If you live in a state like AZ or VA where there are active 2.0 gun groups, there is usually some kind of improvement over the years. They may be minor improvements or tweaks, but they keep rolling.

    I think sebastian’s point is one size fits all isn’t a recipe for success everywhere. I don’t think extra-American states will rejoin the union in our lifetimes. If you think that NY or NJ will have a change of heart about allowing you to transport firearms through their states without federal action I would love to hear your plan for making it happen.

  4. Kevin says:

    Iirc, almost all those laws are the result of compromises. One ‘reasonable’ step at a time they lost everything.

    • Sebastian says:

      New Jersey lost most everything in 1966, which is when the permit to purchase and FID card regime was put in place. We didn’t really lose New Jersey one reasonable step at a time. It was lost in several key, big losses which served to frustrate people out of gun ownership.

  5. Patrick says:

    I’ve been involved in “all or something” negotiations where they offered to modify a state bill to just ban “This Evil Thing” instead of pretty much everything. If you know me, you know the details.

    I am proud to say that every single stakeholder told them we’d rather them force a complete ban on us, than for us to give any ground. There were groups big, small and huge in that room that day, and not a one of us talked it over or even considered the choice.

    The lawmakers were surprised, and they went ahead and banned everything.

    So chalk me up in the Publicola camp. It took a few years to get there, but here I am.

    • Sebastian says:

      But what’s the strategy beyond that? Court challenge?

      • Dave says:

        our 2.0 culture doesn’t have an answer, strategy or working tactic for this yet, that’s part of the problem. Anyone can talk about working to pragmatically move the ball forward or call the pragmatic ball movers “weak kneed compromisers” but the problem is that as you alluded to earlier, once you destroy the gun culture, you destroy the ability to fight effectively on a state political level. There aren’t enough pro-gun bodies left in MD, NJ, NY to even make a difference in all but a nail biter vote.

        The only viable way to ever in our lifetimes lawfully carry a loaded firearm in New Jersey is national reciprocity with criminal penalties for state actors violating the law. These regimes are never coming back willingly. Court challenges in these states are doomed to failure. The local and US district courts are made up of the locals who have a special relationship with the government because they are PART OF the government. Lots of court judges at all levels will bend over backwards to uphold government prohibitions, even to the point of approving of outright perjury. Read US vs. Lofton.

        But part of the problem is getting our side to not be scared of the big bad congress. Some of our 2.0 groups not only eschew anything to do with congress, but actively try to undercut efforts like national reciprocity. The favorite disinformation tool these “so called” pro gun people employ is insinuating federal control over permits, requirements or issuing rules.

        Can we retrocede states back to England? We may as well. I would love to divorce NJ & NY to start with. I’d be willing to bet that if we gave the effort half a chance, we could get at least 30 states. :-)

    • RAH says:

      Most of us do not like to break the law. Why? Because it is easy to arrest us individually. Hard to arrest all of the people in a big rally.

      As one of the Founders said if we do not stay together we will be hanged separately.

      However I was surprised and proud of the Bundy Ranch confrontation. The Bundy’s were in violation of the law. Yet they called loudly and got a response and then the confrontations started verbally. Finally the release of the cattle came under armed people facing down the police and the Feds.

      This was classic case of “I will not Comply”

      The people won in that instance. I am waiting for the individuals to be identified adn slowly arrested . Yet it has not ahppened yet.

  6. Dr. No says:

    No. No compromise. No give. No relaxation. Fight like your life depends on it (because sooner or later it will). If they get one thing, they’ll just come around for the rest later, until they’re able to have someone knock on the door and confiscate.

    As I recall, there is something about not infringing on something or other in that pesky Bill of Rights. Must only be if you’re in a militia or whatever…

  7. Publicola says:

    Sebastian,
    Actually I’m not reasonable – I just haven’t had enough time to fling insults – but I do have a window around next Wednesday noonish penciled in where I plan to mention people with restraining orders that won’t let them within 50 feet of a petting zoo ;)

    I don’t think the gun culture would have evaporated if we fought hard & lost big back in the 90’s. I know you can’t see it, but methinks you’re looking at the gun culture as something recent, whereas I see it as simply the current form of the scots-irish culture. Jersey’s gun culture didn’t disappear – it moved. & how many millions in New York are willfully disobeying the Safe Act?

    Nor do I think that the judiciary or legislature or executive is our only recourse. I think disobedience has it’s place, especially when there’s nothing civil about it.

    This is a 2 front war, so to type. There’s the legal battles (courts, legislatures, etc) & the cultural battles. We’ve been winning on the cultural front & winning big. It’s the legal stuff hat’s been a hassle. I think a lot of gunnies confuse the two at times. Culturally we’d be just as strong and vibrant, if somewhat more clandestine, even if we lost bigger than we have so far on the legal front.

    But the idea that DevsAdvocate posited, that, “Universal background checks, when done right, don’t do much to hurt us.” is pure poison. Even when done “right” they do hurt us. If we’re to stop an expansion of background checks we have to go after the prohibited persons list. & we have to start with educating gun owners about the evil that such a list entails, that it does no good & it does do immeasurable harm, pragmatically as well as in principle.

    You asked about the strategy. It begins with education. Teaching folks, especially the fence sitters but also the folks ostensibly on our side, that a prohibited persons list is not cool. Public opinion supports background checks? Well we have to change public opinion then. It won’t be easy or quick & we will see losses along the way, but in the long term having that solid foundation will give us something to build upon, as opposed to what we’re doing now, which is whacking at a expansion here or a rewording there. From that reinforced base winning in the legislatures & courts will be easier, as we’ll already have won the culture.

    I know it’ll be hard for folks like you to swallow, but the principled approach really is the pragmatic approach if you look at things over the course of decades. Come on Sebastian – join us Absolutists – we not only have cookies, but they’re made with yummy trans-fat :D

    • Alpheus says:

      Now that I think about it, you may be right about the culture…but if there hadn’t been a fight against the assault weapon ban when it wasn’t originally passed, then we would probably have it to this day. Part of the compromise made was to introduce a sunset provision. When that provision came due, President George W. Bush promised to sign a renewal if Congress had passed it.

      At the time, would Congress have passed a repeal of the law, had there not been a sunset? Would President Bush have signed it into law? The answer to both of these questions, I suspect, is very likely to be “No!”. And I don’t see any Congress/President combination since the original ban that would have been willing to repeal the assault weapons ban.

      Besides, how can we be opposed to a law if we don’t fight it, tooth and nail, when it is proposed? That fighting is ultimately going to cause some weakening of bills to happen, because some representatives and senators are going te be representing places that wouldn’t support a full-on ban, but will be willing to support something less stringent.

      • Sebastian says:

        Even if we didn’t have it today (and given how hard it is to repeal bad legislation, we probably would, that would have been the big fight of the 2000s) and we’d never have PLCAA, which would mean all those lawsuits that now get tossed in early stages would be bankrupting the industry.

        And I’d note that NRA still opposed the AWB. They did not go neutral on it even with friends in Congress making changes to make it less awful. We are all very lucky that AWB had a sunset clause, and was only a two feature test. It would have been a culture killer otherwise. Those who think that gun owners would keep fighting at the same intensity underestimate how apathetic your average gun owner really is.

        I am absolutely not saying you don’t fight a bill tooth and nail. What I am saying is using the process to make the bill less awful, if you can swing it, is preferable to getting your movement killed. There are bills bad enough that they will kill the gun culture. GCA ’68 as it was originally passed (prior to FOPA) was, based on anything I’ve heard from people who were part of that fight, came dangerously close to killing off the gun culture.

        • Alpheus says:

          While I certainly sympathize with the idea that “if we don’t water down a bad law, people are going to want to repeal it” attitude, I’m not convinced it works that way all the time, for a number of reasons. (The first of which is the fact that legislation is so darn difficult to repeal!)

          I think this would work if we were the ones making laws…but we aren’t. It’s easy to say that everyone in the NRA shouldn’t compromise, and often they don’t…but it’s the legislators that are making the laws, and deciding what compromises are going to be made…and they are going to make compromises based on what they think their constituents want.

          And as I see it, if we as a culture fight a given law, and that opposition waters down the law to the point that squishy legislators decide to pass it, it’s difficult to see how this is much different from deciding to compromise in the first place–but the difference comes from engagement: direct opposition to the law vs accepting it, and allowing it to be passed as-is.

          To me, the latter would signal that we’re Ok with a law being passed, and I can’t help but wonder how we’d even have a leg to stand on if a time came later to repeal it. After all, if the law was so bad to begin with, we should have fought it then, right? So why would we bring it up again, now that it’s been in effect for a while?

          So, in theory, I’m convinced hard-nosed “take it or leave it” is the best policy, but in practice, being hard-nosed is going to result in compromise, even when I don’t like it….

  8. Chip says:

    Compromising with the bad gets you more of the bad.

    We should compromise nothing. The right to self-defense is a basic human right. It is not only bad to compromise re: the immediate consequences of a particular law, but is also bad philosophically and strategically in the long-term.

    I think that after the Sandy Hook massacre, Connecticut would have been much better off if the pro-gun politicians had not watered the bill down, and instead kept the bill as draconian as the anti-gun folks wanted it. Let those folks go on record as supporting gun confiscation. Show the world what the anti-gun folks actually want. This isn’t the way that politicians normally do things … but that would have been the correct strategy to take, IMO.

    Compromising with anti-gun forces means that the “frog is still boiling slowly” and that the anti-gun folks win again. We don’t win anything when we try to compromise with the antis. Their idea of compromise is not “we get something we want, and you get something you want.” It’s “we get part of what we want, and we’re kind enough to not take everything we want all at once … you don’t get anything.”

    If 10 rounds is an acceptable limit, why isn’t 9? Or 8? Or 7? If “military style” weapons can be banned, why not ALL semi-automatic firearms? If everyone undergoes a background check, why not shred the 4th & 5th amendments while we’re at it so we can ensure compliance?

    Just look at what’s happened in the UK …

    The gun bans haven’t worked, so they are going after knives and will probably continue to go after anything that can possibly be used as a weapon. They are obliterating any legal concept of armed self-defense. There is no reason to expect that they will ever stop, and there’s no reason to expect that the anti-gun folks here will not try to do the same thing.

    THEY WILL NOT STOP. That’s the bottom line. We cannot let them continue.

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