2nd Amendment – Page 63 – Shall Not Be Questioned

Deja Vu All Over Again

In an earlier post, Sebastian described the story of a Philadelphia restaurant owner who shot two would-be robbers, killing one of them.

This follow up in the Philadelphia Inquirer describes a very similar story in 1993 involving the same man with the same results: two robbers shot, one dead and the other facing attempted robbery and aggravated assault charges.

The first confrontation was on Aug. 15, 1993, when two men walked into a grocery run by Lee’s family at 68th Avenue and Broad Street in East Oak Lane.

Police said at that time that the robbery took place about 8:30 a.m., and that Lee pulled his handgun and fired when he emerged from a back room and saw that one of the men had grabbed his wife by the throat.

A 30-year-old man was pronounced dead at the scene from three gunshot wounds, including one to the head. The second man was found nearby with bullet wounds to the chest and thigh.

The best part is that the law never came down on Mr. Lee for doing the city of Philadelphia a favor. And they’re not doing so again.

The Busy Professor

Eugene Volokh has been pretty busy taking the media to task for some pretty awful coverage of the Parker vs. DC decision. Keep scrolling.

It’s a Sad Statement

It’s kind of sad to me that we’re all rather dumbstruck that a federal circuit court actually ruled that the constitution means what it plainly says to anyone with a basic grasp of the language.Â It would be nice if this wasn’t such, I mean, it shouldn’t be a surprise and a shock, it should be expected.

But in a world where judges view that they should increasingly defer to the legislative bodies, and where conservatives rally against “judicial activism” (at least the activism they don’t like), and liberals think that the commerce clause should mean Congress has the power to legislate against assault, I guess we have to take the occasional acts of sanity from the federal courts with the celebratory tone that such rare and welcome acts justly warrant.

Parker vs. DC

Crap, why does something this big have to happen as I’m about to go on vacation?

SayUncle has all the great details.Â This is fantastic news, really fantastic news. Â But it could have implications. Â Our court strategy has to be very carefully undertaken. Â My worry with the Supreme Court ruling that it’s an individual right is that the courts will be flooded with new second amendment cases, and the circuit courts, as they’ve done with other Court rulings they don’t appreciate, will essentially build lower court precedent to render the second amendment effectively meaningless.

Sure, the government might not be able to outright prohibit firearms, but anything up to that might be just fine by the circuit courts.

It’s About Power, Not Killing

In perusing the left leaning forums, I’ve come across a pretty common argument I hear from them. This is quoted exactly from a forum, but I forgot the copy the attribution, so if I’m stiffing someone, forgive me:

Right. If you want defend your freedom against the government you need rpg’s, high explosives, heavy artillery and anti-aircraft missiles.

You have about as much chance of defending your freedom against the government with your hunting rifle as you would “armed” with a bb gun or beanie babies. You are defending your right to have toys.

Well, this is a commonly used argument that on the surface makes sense, but if you really think about it, it’s not really true. What is true is one thing: if the government wants to kill us all, it can.

But war isn’t really about killing. The mistake the left is making is failing to understand what power is.Â What gives another man power over you? Did you ever stop to think about that? I’m not talking here about the kind of power your wife has over you, when she makes you take out the trash. Or the kind of power your boss has over you, when he demands you get a report in on time. We all accept some modicum of social controls as part of enjoying the benefits of living as part of a society with other human beings.

When I speak of power, I mean what makes you accept that if you do something that displeases society, it will punish you. If you ultimately rejected anyone’s power over you, including the state’s, what’s to stop you? It all boils down to a very simple relationship. Others have power over you because, ultimately, power is derived from an ability and willingness to use violence to make one submit to the will of another, or the will of society as a whole.

The key aim of war is to get other to submit to your political will. Killing is ancillary to that; a way to cause your opponent to pay a price in order to convince him to submit to your will. That’s one reason we failed to win the Vietnam War; because McNamara and his wiz kids forgot that war wasn’t about a body count, it was about political will, and the North Vietnamese had more of that than we did. If we had just intended to wipe out the Vietnamese, we could have easily done so. But we wage war for political reasons, not because we like killing. As Clauswitz said, war is just politics by other means.

So it’s with that idea in mind that the founding fathers understood the value of an armed citizenry. Who can blame them? They had just defeated the most powerful military on the face of the planet. How many people of Boston do you think would have said, “You’ll never defeat the British Army. And even if you could, you’ll certainly never defeat the Royal Navy. Just look at what they have?” And let’s face it, if the Royal Navy had just decided to open fire and shell Boston after blockading Boston Harbor in June of 1774, I suppose there wouldn’t have been much the city could have done to survive. But the British crown did not want bodies, it wanted submission.

In our country today, the crown is the state, and it has planes, tanks, rockets, nuclear weapons, submarines, and all manner of deadly weaponry. But those are instruments of killing, and while they can translate into political power, they are not political power in and of themselves. If the government wishes to force us to submit to its will, rather than just merely killing us all, eventually someone has to get out of that plane, submarine, or tank and come shove a rifle in my face. When one talks of power between humans, that’s what it really boils down to.

What the founding fathers meant to protect, when they wrote the second amendment, was not a guarantee against getting myself killed by my government. They had just fought a war where a lot of that went on, and they knew better. What they meant to preserve was someting else; if on the day that an unlawful government came to stick rifles in our faces, demanding submission, that we could point them right back and say “NO!”.

It was Patrick Henry who exclaimed on the floor of the House of Burgesses in 1775:

It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace– but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

The second amendment is not meant to be an indivdual guarantee against death, it’s about us, as a free citizens, being able to choose to say no; the freedom to choose to risk death, and rather than submit to an unlawful government, to fight it.

This is what the left of today fails to understand, and a big part of the reason I find their philosophy repugnant. Given that war is about political will rather than body counts, there’s a reasonably good chance that a body of armed people, collectively saying “NO!”, and backing it up with force of arms, will be enough to deter any government that might forget who they work for, and what constitution they are supposed to operate under.Â A lot of individuals might perish in such a process, true, but the second amendment was meant to guarantee that we, as free Americans, always had a choice of whether or not to go gently into that good night.

And that folks, is why I’m a gun nut.

Glad Remington Doesn’t Act This Slowly

According to David Codrea, the FAA has retracted its collective rights statement.Â How long ago was it that we pointed this out?Â Â The sad part is, they probably acted with light speed in government terms.Â It’s good news though, because it means it was the FAA not being aware of the administration’s position, rather than the administration deliberately retreating from the earlier position.

Being Full of Crap Is Dangerous

According to Clifford M. Herman, over at the Seattle Post Intelligencer, bowing down to the NRA is dangerous. Let’s take a look at what he has to say:

The arguments favoring the private ownership of handguns in this country are based on two myths.The first myth is that the Second Amendment to the Constitution guarantees private citizens the right to own handguns.

The fact is this. The Second Amendment, in its entirety, states “A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The National Rifle Association has succeeded brilliantly and cynically in convincing the public that the amendment consists only of the part that follows the comma.

You should check your facts, because most of the recent scholarship out on the second amendment has rejected this model and embraced an individual rights view. Even liberal scholars, such as Larry Tribe have embraced an individual rights model of the Second Amendment.

The second myth is that every private citizen needs a handgun to protect his loved ones and property against intrusion by burglars. This is a pernicious untruth. As a longtime trauma surgeon at Harborview Medical Center, the main center for treatment of all kinds of wounds and injuries, I cannot recall a single patient who had been shot by the resident of a private home while attempting to burglarize it. I believe my surgical colleagues would agree with that assessment. It is far more likely that a young boy finds a loaded handgun in his parents’ bedside table and either he or a playmate gets shot while playing with it.

This would be news to Dr. Gary Kleck, criminologist at Florida State University, who’s studies estimate about two and a half million defensive gun uses annually, the vast majority of which do not result in anyone being shot. Most criminals break off the attack when confronted with someone prepared and willing to defend themselves. The truth is there are many of these types of defensive uses around the country every day, if you had ever bothered to look.

Those are the two myths responsible for the ubiquitous presence and use of handguns in Seattle and elsewhere in this country. They attest to the ignorance of our citizens and our laziness in not even reading and learning the history of the Second Amendment to our Constitution.

I’m sorry sir, but it is you who are the lazy and ignorant one, not us. It’s not exactly a good way to persuade folks by claiming that of people who simply don’t agree with you. Honestly, it makes you look like an arrogant prick. Handguns are ubiquitous and present in our country because Americans, whether you accept it or not, have a constitutional right to keep and bear arms to defend themselves and their families. Read what the founders have to say about the subject, and you’ll understand why you are wrong. People aren’t ignorant just because they choose to make the wise decision not to rely on the police, who can’t always be everywhere when some criminal chooses us as his mark.

The obvious truth is that only police and other law-enforcement officials should be allowed to have handguns in this country. Private citizens have no legitimate use or need for them, and they should be barred from possessing them. Period

So do you want to pay to have the police follow me around everywhere? No? Then don’t be so arrogant as to presume to make choices for me when it comes to my own personal security. Stick to medicine doc. Leave the gun subject to the people who actually know what the hell they are talking about.

“The Courtâ€™s door should be knocked only with the utmost seriousness and preparation.”

So says Steven Halbrook in his latest law review article.Â I was going to say something about this but, damn you Geekwitha45, you took the words right out of my mouth.Â The money quote form the law review is

While there is room for optimism, one presents a Second Amendment case before the Supreme Court with great risk. New rights are discovered with extra-legal phraseology like â€œliberty of the person both in its spatial and more transcendent dimensions,â€67 and explicit rights â€“ to include core political speech68 â€“ are swept away. The first case the Supreme Court takes on the merits of the individual-collective rights issue will be critical. This area of the law is no exception to the precept that the Courtâ€™s door should be knocked only with the utmost seriousness and preparation.

Go read what Geekwitha45 has to say! Â I don’t really have much to add.

In Search of the Second Amendment – A Review

So this afternoon, while I was waiting for the battery to my 18V cordless circular saw to charge, after it died on me in the middle of a cut, I decide to watch Dave Hardy’s documentary, In Search of the Second Amendment. My impression is that the documentary is well done and is interesting to watch even if you’re not a total gun nut. If you know anyone who is interested in history, or on the fence about gun control, I would recommend this video. You will certainly walk away with from it with a greater appreciation of the Second Amendment as one of the palladiums of our liberties than you might have had before.

One quote in the documentary, from Glenn Reynolds, stuck in my mind particularly:

One of the interesting things about the gun control debate, is that in a way it’s sort of a litmus test for what people think about their fellow citizens in general. My own sense is, that Americans tend to respond well to crisis, and generally can be trusted to try to do the right thing.

Which is exactly why I think this issue matters so much to me. What you think about the right to keep and bear arms says a lot about what you think in general. For instance, I think folks like Wayne Fincher, and the Arkansas Militia, are a little whacked.Â But I completely trust them to have automatic weapons, and believe it is their right to have them.Â And to peaceably assemble, and freely assocate with other folks of the same mind. I don’t think it any different than folks getting together over coffee and discussing the benefits and problems of markism. Both aren’t my kind of thing, but it’s their right as free Americans.

Glenn is absolutely right. To accept the right to bear arms is to accept an entire philosphy about one’s relationship to one’s government and fellow citizens, and I will always come down on the side of treating people like adults rather than children, even if that means getting it wrong with some people.

The other positive thing about Dave’s docuementary is that it gets well spoken, educated individuals in front of the camera talking about a subject that many people wronly associate with ignorant and unedcated whackjobs.Â Don Kates is compelling discussing his civil rights background, and there is a lot of discussion about the unsung role that arms played in the civil rights movement.

So if you have anyone in your life who is on the fence about the second amendment, or the subject of gun control, I would order them a copy of the docuemtnary and watch it with them.Â It’ll present the subject in a way they’ve probably never experienced, and might even get them to change their minds.

Great job Dave!

The Courts Are Stacked Against Us

David Codrea has been tracking the unfortunate circumstance of Wayne Fincher, who was arrested for illegally manufacturing and possessing a machine gun, with the purposes of raising the constitutional question of whether there’s an individual right to keep and bear automatic weapons. Let me just say that I have a lot of respect for Mr. Fincher for caring enough about our rights to risk federal prosecution in order to try to win them back, but I have to question the wisdom using this method, because the courts, quite honestly are stacked against us, and going to court is a risky, risky proposition, even if you’re the perfect case with the perfect defendant. As much as I hope Mr. Fincher ends up winning his case, I suspect there’s going to be federal prison time in his future.

Unlike Mr. Fincher, judges these days are not brave people. They tend to be very reluctant to throw our laws that have been enacted by Congress. There’s a presumption of constitutionality the courts make, that any law Congress passes, and the president signs, must be constitutional, and therefore the burden is on the citizen to prove otherwise. But before you can even have standing to raise this issue, you have to be prosecuted. This is the path that Mr. Fincher has taken.

Mr. Fincher was prosecuted in Arkansas, which is in the 8th Federal Circuit, where the collective rights model is the controlling law. The judge in that case will not, and in Fischer’s case, has decided, not to allow him to raise 2nd amendment arguments during his trial. This is standard procedure in trials when the district justice is controlled by precedent from the higher circuit court. Fischer will be able to raise the issue on appeal, but the deck will be stacked against him. He’d have to convince the court to overturn one of their previous rulings. In all likelihood, the court will refuse to hear the appeal if it’s based on the second amendment. But what if they do?

The other big problem with using this case to get the courts to recognize the second amendment, is how big of a leap you’re asking the courts to take. The Supreme Court has never plainly stated the Second Amendment protects an individual right to bear arms. They have implied it in dicta, but there is no example of any federal law being invalided under second amendment grounds. We don’t really want the first case being taken before The Court to involve a machine gun in possession of someone the prosecution will have an easy time painting as a whacked out, subversive militia type (I’m not saying this is right or accurate, just that’s what the prosecution will do). We really don’t want this to happen in a circuit court that’s already hostile to the second amendment. A case like this would even be a leap in the 5th circuit, which so far is the only federal circuit that recognizes the second amendment as protecting an individual right. And remember that the 5th’s circuit’s ruling didn’t help out Dr. Emerson any, the Lautenberg restrictions on his right to bear arms were upheld as constitutional. Courts generally will not take major leaps of faith, and getting at least one of the circuit courts to even say that the second amendment protected an individual right was a major step in the right direction. But the next challenge has to be a baby step up from that. DC’s near total prohibition on firearms is probably a decent step, but even that might be asking for too much, and it’ll be easy for the courts to dodge the issue based on standing unless someone steps up and agrees to be prosecuted. Mr. Fincher has boldly settled the standing issue in his case, but I think it’s the wrong case in the wrong circuit for getting the second amendment recognized by the courts.

I don’t want to be misunderstood, I think the second amendment protects Mr. Fincher’s right to possess a machine gun, and I would refuse to convict if I were on the jury, but we have to be very careful about using the courts, because we can damage our cause in a serious way if we’re not prudent. I really do hope Wayne Fincher doesn’t end up in a federal prison, but I suspect he will. We do need to people like him that are willing to put so much on the line, but we have to be careful, and we have to understand how the courts work and how judges think, and take that into account when working toward our goals.

UPDATE: Wayne Fincher was found guilty of the charges against him after a very brief deliberation by the jury. I should also say that pissing off the presiding judge also is not a very good strategy to use in court. Check out this post over at Smallest Minority, which has a lot more really good information and commentary on the case. Looks like we’ll be adding Smallest Minority to the blogroll.