Cherry Picking Second Amendment Freedoms

Author and commentator Patrick J. Charles seems to be new to HuffPo as they credit him with only one post so far. Based on that one piece, however, it certainly appears that he has the requisite mad skillz in distorting and cherry-picking facts to get on board as a regular anti-2A contributor. He starts out commenting on the upcoming election by doing a little comparing and contrasting between the GOP and Dem platform planks regarding the Second Amendment . . .

For Republicans, the Second Amendment is not limited to the holdings of the Supreme Court decisions District of Columbia v. Heller and McDonald v. City of Chicago, where 5-4 majorities only held that armed self-defense in the home, with a hand gun, is a fundamental right of law-abiding citizens.

Question: why should it be limited to those holdings? The court was presented with extremely narrow lower court rulings, hence the Supremes’ decisions were narrow. Remember that Brown v. Board of Education didn’t spring full-grown from the forehead of a god, but was preceded by a number of cases designed with the eventual goal of desegregation.

In State of Missouri ex rel. Gaines v. Canada SCOTUS ruled that if a state provided a school education for whites it had to do the same for blacks (either through desegregation or providing “separate but equal” facilities). Sipuel v. Board of Regents of University of Oklahoma led to the unanimous ruling that someone could not be denied entry to law school simply because of their race. In the case of Sweatt v. Painter SCOTUS ruled that “separate but equal” facilities actually had to be, you know, equal.

Like Heller and McDonald, each of these cases addressed a narrow question and resulted in narrow rulings. They all were laying the groundwork for the landmark Brown v. Board of Education and no one can seriously argue that the narrow rulings from the narrow questions marked the full extent of minority rights.

Pat continues:

Allegedly, the right to keep and bear arms also “includes the right to obtain and store ammunition without registration,”

First of all Pat, it’s pretty hard to train without shooting (which, BTW, uses ammo) and without ammo a gun is transformed from an extremely safe, highly effective self-defense weapon into a rather clumsy club. And I can hear you saying “Jeez you gun-nuts are paranoid! We aren’t talking about any sort of ban, just some common sense rules that would be a minor inconvenience.”

And you know what Pat? That is exactly what you antis have said about FFLs over the years, so I offer Firearms Commerce in the United States 2011: Exhibit 10 (I have no idea why the ATF called it that) it’s a table of FFLs from 1975 – 2010. Since we are talking about sales here, not manufacturing, I put together the following chart which shows the number of dealers and pawnbrokers combined (the 2^nd and 3^rd columns of the ATF’s table/exhibit):

(I offer my apologies for the fact that Excel 2010 is kicking my ass: I can’t figure out how to get the years on the horizontal axis, so add 1974 to the numbers to get the year.)

So as the number of gun owners and permit holders has skyrocketed over the last 2 decades the number of dealers has dropped from its high of 257,942 in 1993 (point 19) to 54,559 in 2010 for a reduction of almost eighty percent. Now explain to me why we should believe that the antis won’t use bureaucracy to choke off access to ammunition?

a right to self-defense “wherever a law-abiding citizen has a legal right to be,”

omg OMG OMG! You mean a citizen who is peacefully minding his own business, strolling around the mall actually has the right to protect himself? I really can’t see why Pat thinks that’s such a stretch, since there have been more than a dozen rulings by the Supreme Court affirming that an individual has the right to protect himself; from Gourko v. United States and Thompson v. United States where the Court ruled that carrying a weapon for self-defense did not constitute pre-meditation, through Brown v. United States which gave us the classic “[d]etached reflection cannot be demanded in the presence of an uplifted knife.” Alan Korwin has put together an excellent summary of SCOTUS’ self-defense cases.

But getting back to Pat, here is where he’s starts in on his distortions:

Allegedly, the right to keep and bear arms also … [includes] a right to self-defense “wherever a law-abiding citizen has a legal right to be,”

But that’s not what the platform said at all. It does maintain that ammo is protected under Heller and McDonald, but then it states:

We support the fundamental right to self-defense wherever a law-abiding citizen has a legal right to be

Since I’d never accuse Pat of being too stupid to properly parse separate sentences in a paragraph, he must just be lying when he continues:

Allegedly, the right to keep and bear arms also … [includes] the ability to purchase and maintain unlimited ammo clips, and the ability to purchase and maintain assault rifles.

First of all assault rifles are select-fire weapons which are insanely strictly controlled under the National Firearms Act and the Hughes amendment (and even more restricted by the Hughes Amendment which didn’t actually pass but that’s a different post for a different day). But if we assume Pat actually meant to talk about military-style “assault weapons”[1] then once again, that’s not what the platform, you know, really said. The actual words from the platform are:

 We oppose legislation that is intended to restrict our Second Amendment rights by limiting the capacity of clips or magazines or otherwise restoring the ill-considered Clinton gun ban.

Pat already admitted that Republicans believe the Second Amendment actually means what it says and isn’t limited to the narrow holdings in the Heller and McDonald rulings so if we follow their logic, why wouldn’t such an expansive right include the ownership of “assault-weapons” or even, for that matter, assault-rifles (I know, different post for a different day)?

Likewise why should I be limited in the number of magazines I can buy to feed my various semi-autos? I want to have lots of mags so I don’t have to waste range time reloading them. I can sit in front of the idiot-box and easily load 500 or 1,000 rounds with a LULA tool so that when I hit the range I can work on my shooting skills instead of my loading skills. As for mag size why should I be limited to a certain number of rounds in a mag? Aside from practical limitations that is; I have seen 100-round banana mags for AKs, I really don’t think anything bigger would work. Heck I think I’ll stick to 5 20-rounders instead of that monster.

But anyone who followed the “bullet-button” the brouhaha in California knows that the true agenda of antis like Pat is to ban any weapon that can be rapidly reloaded, period. Even with mag sizes limited to 10 rounds the CA crowd was horrified that you could swap mags quickly and easily.

Pat finishes up his explication of the Second Amendment portion of the GOP platform with:

All and all, Republicans see the Second Amendment as a means to enable “Americans to defend their homes and communities.”

Well put them up against the wall and shoot them down like the traitorous dogs they are! How dare Republicans think that people can and should be responsible for their own safety and that of their communities? The fact of the matter is, however, that ultimately people are responsible for their own safety. I have heard antis argue that this is what the police are for, but in case after case, from Riss v. City of New York through Warren v. District of Columbia to the more recent Castle Rock v. Gonzales, the courts have uniformly ruled that the police, while tasked with protecting society at large are not liable if they fail to protect individuals. Indeed in Castle Rock v. Gonzales the court held that even though CO state law required police to arrest someone who violated a restraining order they could not be held liable when their failure to obey this law resulted in the murder of three children.

Author John Longenecker has come up with a superb analogy in this regard; citizens as first responders. I am not a doctor, but when I was a Boy Scout I learned CPR and mouth-to-mouth resuscitation (now called “rescue breathing” I guess). This does not make me a doctor or EMT, but it does mean that I can keep someone alive until the professionals arrive. And the more people you have who are CPR trained, the more likely it is that someone suffering heart failure will survive long enough for “the professionals” to take over.

Phew! That’s the first two paragraphs of Pat’s piece; from here he goes into the Dem’s Second Amendment plank:

For Democrats, the Second Amendment is acknowledged as an “important part of the American tradition” that includes the “right to own and use firearms.” However, unlike Republicans, the Democrats perceive the Second Amendment as being “subject to reasonable regulation.” It is the Democratic Party’s hope that there can be “an honest, open national conversation about firearms” and the “terrible consequences of gun violence.”

I have no problem with putting reasonable regulations in place regarding the Second Amendment. I don’t think that politicians, bureaucrats or cops should be imprisoned for any term of more than 10 years or fined more than $100,000 (just like any other civil rights violation under 18 USC §242) for violating (i.e. infringing) or attempting to violate, someone’s Second Amendment rights. Of course if the violation led to the death, kidnapping (i.e. “wrongful arrest”), attempted kidnapping or sexual abuse (i.e. strip search) of a citizen exercising their rights I would set the maximum term at life with no possibility of parole.

Of course I am pretty sure that Pat and the Dems who penned the platform had something different in mind for their “reasonable” restrictions. And you know what? If they want to say that anyone who commits murder with a gun (or any other instrument) should spend their life in prison, I’m okay with that. If they think that someone who commits armed robbery with a gun (or any other dangerous instrument) should receive a 10-year “sentence enhancement”, I’m okay with that.

If, however, they want to mandate locking up your guns, or banning certain kinds of weapons based on cosmetics, or limit magazine sizes, or calibers, or price all because someone might use a gun for something bad, then no I am NOT okay with that! Let me put it simply; if your stupid mala prohibita law is designed to prevent “something bad” from happening then I do not consider it a “reasonable restriction”.

As for having “an honest, open national conversation about firearms”? I would absolutely love that. Let’s start with the VPC’s list of “Concealed Carry Killers”, shall we? Clayton Cramer does a masterful job deconstructing their list, including the fact that in only 86% of the incidents can it be confirmed that the “killer” actually had a PTC[2]. Indeed, he documents that 5% of the total “killers” assuredly did not have a permit at the time of the “killing”. He also points out that the VPC has included in their list eight “killings” that were later deemed justifiable with another 21 incidents of likely self-defense which have not been resolved (for example, they list the Zimmerman/Martin case with Zimmerman listed as the “killer” even though all the current evidence points to him being the victim).

Read the report through when you get a chance, it will give you plenty of ammunition to shoot down the next anti who tries to present these lies in “an open and honest conversation.”

Next we could work with the VPC on their “License to Kill” reports which used data from the Texas Department of Public Safety to smear permit holders by listing all of the different crimes folks with a PTC had been arrested for. Oddly enough the vast majority of these accusations consist of raw numbers, not percentages or rates. This probably has something to do with the fact that, as reported in an editorial from the San Antonio Express-News, annual arrests for adult male Texans is fourteen times higher than for permit holders while arrests for violent crimes are five times higher than in the general population. The one solid statistic that I could find in the VPC report stated:

From 1996 to 2000, Texas concealed handgun license holders were arrested for weapon-related offenses at a rate 81 percent higher than that of the general population of Texas, aged 21 and older. These weapon-related offenses include arrests for 279 assaults or aggravated assaults with a deadly weapon, 671 unlawfully carrying a weapon, and 172 deadly conduct/discharge firearm.

This sounds pretty bad until you root around and find that the vast majority of these arrests for “weapon-related” offenses were for things like failure to conceal (at the time a misdemeanor in TX) or carrying in a prohibited location. So what the VPC is essentially saying is that because people with a driver’s license are arrested more frequently for DUI than unlicensed drivers, all licenses should be cancelled. Yeah, nothing really open or honest about that.

Pat continues:

What makes this political divide interesting is the manner the political parties are touting the Second Amendment. The Republicans see their interpretation of arms bearing as “antedat[ing] the Constitution and… confirmed by the Second Amendment.” In other words, Republicans view the Second Amendment and their entire platform as restoring the Founding Fathers’ values.

I can’t speak to their entire platform, but as to the Second Amendment part; yes that is correct. The right to self-defense (i.e. keep and bear arms) antedates the Constitution, the Magna Carta, Hammurabi’s Code, the Bible, written language, hell it even antedates spoken language because even animals have the right to defend themselves!

Meanwhile, the Democrats platform asserts progressive American values that they believe are in line with the issues and problems we face today. This includes addressing the problem of gun violence, with Democrats hoping to strengthen background checks, close purchasing loopholes, and devise “commonsense improvements” that protect the community at large.

“Objection Your Honor! Defense is assuming facts not in evidence.” At least that is how they would handle it on one of those cop/courtroom TV dramas because neither “strengthening background checks” nor “closing purchasing loopholes” has ever been shown to be effective at “addressing the problem of gun violence”. And what is one of the “commonsense improvements” that the Dems are pushing? Why reinstating the assault weapons ban of course. After all, crime skyrocketed when it was allowed to lapse in 2004, right? Didn’t it? Um, guys?

Of course it didn’t. And while they may talk about “reinstating” the Clinton-era AWB what they mean is passing an entirely new and much more restrictive ban. I can’t find her proposed bill on her website, but in a press release dated 7/29/12 Sen. Feinstein stated that the manufacture and sale of “an AR-15-style semiautomatic assault rifle” like the one used in Aurora, would be banned. Specifically “[t]he manufacture and sale of these weapons … would have been prohibited under the assault weapons ban.”

So DiFi and here minions want to ban the weapon which, according to ATF figures cited by the NRA, constitutes eight percent of our total firearms production and twenty-two percent of rifles produced for domestic use. Is she insane?!?! Gun manufacturing is one of the very few bright spots in our current economy and she wants to destroy almost a tenth of their business because their product is scary?!?

I have been unable to locate any “new” proposed legislation, but H.R. 6257 (the Assault Weapons Ban Reauthorization Act of 2008) does indeed specify banning the Colt AR-15. In fact along with the AR-15 it would ban “all models” of the Avtomat Kalashnikov, the FN/FAL, FN/LAR, FNC, UZI and Galil, Beretta Ar70, M-9 through M-12, Steyr’s AUG and the Tec-9. Not only does it ban these weapons specifically but it also bans “any of the[se] firearms, or copies or duplicates of the firearms in any caliber”.

So much for a “reauthorization”.

Next Pat rolls up his sleeves and dives in to history, citing the 1689 English Declaration of Rights (That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law), Blackstone , the Statute of Northampton (which “prohibited the ‘wear[ing] or carry[ing] any Guns, Dags or Pistols charged’ in the public concourse”),  and various other (English) legal writings from the early 18^th century. He does not, however, cite a vast and varied group of writings from the era; the actual writings of the Founders themselves.

Putting aside that glaring exception Pat reasons that with all of these precedents the Founders would have been amenable to “reasonable restrictions” on the right to keep and bear arms. What strikes me is Pat’s intellectual arrogance when he decides that the Founders really didn’t mean what they said, seeming to believe instead that with all of these “reasonable restrictions” cited in English law what the Founders really wanted was a similarly limited privilege and were just careless when they wrote the Second Amendment.

I pick up the thread of Pat’s narrative here:

Still, even if we ignore the historical evidence and demote the Statute of Northampton to a mere prohibition against carrying “dangerous or unusual weapons” among the public concourse, it is within the legislature’s purview to decide which weapons are in fact “dangerous” and should be regulated, limited or prohibited.

See what I mean about intellectual arrogance? Pat assumes that what the Founders really meant to put in the Bill of Rights was the Statute of Northampton but goofed and wrote the actual Second Amendment instead. Silly Founders.

Then Pat trots out the old “more powerful weapons” shibboleth:

Just pause to consider this historical fact: an average eighteenth century rifleman could discharge two rounds per minute, giving a company of thirty riflemen the power of 60 rounds of ammunition per minute. Today, a number of firearms easily exceed this. It cannot be logical for eighteenth century law to prohibit the carrying of a charged single shot pistol, but for the Republican platform to assert an “antedated” constitutional right to publicly carry a firearm that carries six, 12, 15 or more shots today.

The other day one of the Armed Intelligentsia reminded me of the Girandoni air rifle. This rifle was a .46 caliber weapon which saw service with the Austrian army from 1780 to 1815. According to Phil Schreier (senior curator of the National Firearms Museum) it could very accurately fire its ball through a 1-inch pine board at 100 yards, held 22 balls which could be fired in 30 seconds and could fire 40 times before starting to lose muzzle velocity. So actually, Pat, assuming tubed ball to speed reload, a company of 30 riflemen would have the power of twelve-hundred rounds per minute. But heck, what’s two orders of magnitude plus a factor of two between friends, right?

So much for the old “more powerful weapons” meme.

As for the “logical” aspects of banning a single shot pistol, that was in ENGLAND! The Founders fought a bloody Revolution to get away from England and wrote an entire Constitution and Bill of Rights to get away from English law. So what is not logical is your insistence that the Founders really intended to repeat all the mistakes in English law and government instead of starting fresh.

The point here is not that public gun prohibitions are the definitive answer to solving or ending gun violence.

Well that’s good because, aside from the fact that the freedom to own and carry the weapon of your choice is a natural, fundamental, and inalienable human, individual, civil and Constitutional right — subject neither to the democratic process nor to arguments grounded in social utility[3], they aren’t any sort of answer or solution.

There may be some truth to the argument that more guns in the hands of properly trained, law-abiding citizens deter crime.

That’s mighty big of you to admit that Pat, seeing as how the vast majority of peer-reviewed studies document that fact.

Instead, the point is that public gun regulations to preserve order and prevent public injury are part of our Anglo-American tradition, and it is a subject that has always been regulated by the legislatures in the interest of the common good.

There are lots of things which can be claimed to have “preserv[ed] order and prevent[ed] public injury”, been a part of “our Anglo-American tradition” and had “always been regulated by the legislatures in the interest of the common good.” Thanks like slavery, Jim Crow laws, segregation, women’s coverture, debt peonage . . . all of these qualify under Pat’s guidelines but I would argue that none of them are good things.

 It is for this reason that the Republican’s laissez-faire interpretation of the Second Amendment is worrisome. Not only does it seemingly foreclose an open and honest discussion on the dangers of gun violence, but it implies an armed society facilitates law and order, not government order.

And there we have it: The real reason antis hate gunnies is that we oppose government order and favor of law and order. Oh, and how does believing that the Second Amendment means what it says preclude open and honest discussions of, well, anything?

Pat finishes up by once more trying to turn the Founders into his sock puppets:

And if this is the Republican platform on guns, the Founding Fathers are shaking their heads at the Republicans and nodding in support of the Democrats push for “an honest, open national conversation about firearms.”

See my earlier comments about anti-gunner style openness and honesty in the gun debate and then answer me this: Why would a party platform supporting the Bill of Rights as written and adopted by the Founders cause them to shake their heads? Perhaps it is the idea that rights so basic were so controversial that someone needed to write them down to ensure their support?