ricketyclick

Chuck Norris, a.k.a. Walker, Texas Ranger, explains that while he, “a black-belt patriot”, could take out a robber with a roundhouse kick, he’d prefer to use a gun:

[Youtube link]

I am not a Chuck Norris fan, because all too often, his stories involve being a Hero who comes in to help those who won’t, or can’t help themselves.

Here, though, he’s not offering to bring either his gun or his feet to protect you. He’s asking you, you personally, to stand up for your right to protect yourself, by checking the actual voting records of politicians who claim to support the right to keep and bear arms.

Bravo, Chuck! This, not your kick, makes you my hero for the day!

Swiped from Tamara K’s Porch.

Pharyngula points to a poll that asks us if we “agree with the Genocide Awareness Project’s stance that abortion is genocide“.

Certainly not! Abortion is the result of an individual’s choice exercised against her own body. Genocide is the result of official government policy against a whole people. (However, forcible abortion can be used as an instrument of genocide.)

The right to an abortion, like the right to keep and bear arms, flows from our right and responsibility to govern our actions by our own consciences, even in matters of life and death. When we abdicate that right to the government, we enslave and degrade ourselves.

===

I’ve had this post mouldering in my Drafts folder for more than a year now. I don’t have time to blow the dust off, much less polish it up, but I really need to get it out where it can be looked at.

I wrote it in response to an email from a family member who is passionate about protecting abortion rights, but aggressive about abolishing the right to keep and bear arms. That may have ever so slightly affected the slant. ["Slant? There's a slant to this blog? Why wasn't I told?"]

Whatever. Here it is, for better and for worse. I’ll very likely come back and clean it up later, when I have a bit more time, and (with any luck) some feedback from both sides.

===

Legal and social context of the right to keep and bear arms (KABA) versus the right to an abortion:

KABA: Directly, the right to own a tool.
Indirectly, the right to use that tool in defense of your life and liberty.
Abortion: Directly, the right to end the life of a human embryo or fetus.
Indirectly, the right to govern your own body and your personal resources as you see fit.

KABA: The legal right to keep and bear arises from English common law, itself based on a primal instinct to defend one’s self and family.
Abortion: The legal right to an abortion is mostly a 20th century innovation. Abortion was forbidden under English common law. However, it appears to have been quietly ignored; and even outright infanticide immediately post-partum, while a felony in common law, is often ignored in practice. [Um, according to my hasty web research. I welcome clarification and correction on this point.]

KABA: Explicitly enumerated in and protected by the Constitution.*
Abortion: Protected by a Constitutional “penumbra” vaguely defined by the Court.

KABA: Applies to all competent, law-abiding adult citizens, at least in theory. “The right of the people…shall not be infringed” is as broad and absolute a prohibition on government interference as exists in the Constitution. In practice, of course, there are many jurisdictions where the right is denied even to retired or off duty military and police personnel.
Abortion: Applies to adult females, even violent felons, non-citizens, and (in some jurisdictions) minor children without parental oversight. In any case, though, only to females. Males, even the fathers, have no legal standing in most jurisdictions.

KABA: Rarely discussed in the classroom, even at the college level. In fact, many public schools effectively forbid discussion.
Abortion: Routine sex-education topic, even in junior high.

KABA: Press coverage is extremely hostile, and often inaccurate and deceptive. Sources who have never handled a firearm and are blatantly ignorant are cited as “experts”.
Abortion: Press coverage is generally sympathetic, although it may be just as inaccurate and deceptive. Sources are often professional advocates, health practitioners, or women who have had abortions. (Of course, the fetuses involved are rarely interviewed, photographed, or even mentioned.)

KABA: Heavily regulated by a hostile, arbitrary, and incompetent federal bureaucracy (the BATFX), and many usually hostile, or at best benign, state and local agencies.
Abortion: Regulated by ordinary medical practice, and many state and local agencies. Depending on jurisdiction, these agencies may be supportive, benign, or hostile.

Self Defense: Sole legal justification is defense against a direct, violent threat. In some jurisdictions, you must make every effort to escape before mounting a potentially lethal defense, even allowing an aggressor to chase you from your home or business.
Abortion: No legal justification required. Personal justification ranges from blocking an imminent threat to the mother’s health, to ending an inconvenient annoyance.

===

Consequences of exercising the implied right to use a weapon in self defense, or the direct right to have an abortion:

Self Defense: Very often, merely displaying the tool ends the threat, and there is no injury or death at all.
Abortion: Exercising the right inherently involves killing the embryo or fetus.

Self Defense: Target is typically a career criminal with a long history of lawlessness and violence who is deliberately threatening the shooter.
Abortion: Target is, excuse me, there is no other word, an innocent, and is not in any way responsible for the problem. On the other hand, at least for abortions in the first two trimesters, the target doesn’t have anything resembling a human brain, either. It is not self-aware, and does not have a conscience. It is innocent in the sense an earthworm or minnow is innocent (although even those creatures have mature, functioning brains).

Self Defense: Bystanders may be accidentally injured or killed. Such incidents are closely investigated, and the shooter is typically criminally responsible and civilly liable.
Abortion: Accidental abortions are called “miscarriages”, and can result from both preventable and non-preventable causes. Either way, they are typically not investigated by law enforcement. Only the mother and the affected fetus are involved. However, abortions are used to terminate “accidental” pregnancies, which often result from careless sex.

Self Defense: Self-defense decisions are made in the face of extreme threats, such as rape or death, and must be instant and instinctive. Weapons owners should, as part of their training, carefully think through the issues and decide under what circumstances they will employ lethal force, in order to act appropriately when the crucial moment comes.
Abortion: At puberty, girls should be presented with the facts and advised to carefully think through the issues. In any event, however, if an unexpected pregnancy occurs, the mother typically has hours, even days or weeks, to think things through and consult with family, friends, counselors, physicians, and, it is to be hoped, the father.

Self Defense: Merely displaying your weapon to an attacker (”brandishing”) can result in a police investigation, possible jury trial, and fine or imprisonment. As for actually putting a bullet in someone? Always, if the act comes to official notice, there is at least a police investigation, possibly resulting in life in prison, even execution.
“Every bullet comes with a lawyer attached.”
“Better to be judged by twelve than buried by six.”
Abortion: In most jurisdictions, abortion is a private, privileged matter between a woman and her doctor. Often, not even the father (or, for older minors, the parents) have standing. Under most circumstances, the matter never comes to the attention of law enforcement.

===

The asymmetry can balanced in two ways: relax constraints on the right to keep and bear arms, or tighten constraints on the right to an abortion. I strongly favor the former.

===

* In fact, the Second Amendment protects one of the two tools mentioned by the Constitution.

Pop Quiz: what’s the other? Hint: Not obstetrical forceps or curette.

Show ▼

Heller, the Supreme Court’s first ever in-depth look at the Second Amendment, may come out today.

[Update]Immediately after posting, I clicked over to SCOTUSblog, and discovered that today’s opinions have been released, and Heller is not among them.

There are seven remaining opinions. SCOTUS has said more will be released Wednesday. It’s very likely that at least one decision, likely Heller, will come out Thursday. Sigh. [/update]

Probably not, though. There are ten cases left for release this term. The Court is likely to space them out over several days. and Heller will likely be left for last. See Alan Korwin’s Page Nine email #48:

The Heller decision could actually come later than June 23, the widely anticipated last scheduled day of proceedings for the session. The Court can add days to its calendar for additional decisions if it needs to, but these would typically come before the end of the week (June 27). Absolutely no way to know for sure until they act.

Lead attorney Alan Gura pointed out in an email to me (6/19/08) that the Court still has ten decisions left to issue, including three biggies, so it’s highly likely they will add days to the calendar.

My conjecture: The decision must be signed and sealed now for at least days if not weeks, to allow for proofing, typesetting, printing, binding, pre-mail activity, web prep, syllabus draft, etc. My guess is they would rather release it at the end, so the national hub bub doesn’t impinge on other work they have. Requests for interviews, phone calls from friends and close associates, shouting in the press, a ton of activity can be expected, might as well finish off the term first, no?

[Page 9 is also a blog, although these particular observations do not seem to be there. Here's a link to an article linking in turn to the articles he wrote back in March, when oral arguments were made. Korwin is the author of the Gun Laws of America series.]

Just for the record:

No matter what the Court actually says, it cannot decide whether or not I have the right to arm myself with deadly force. I do, the Constitution plainly says that I do, and it was the intent of the Founders that ordinary citizens be able to understand in some detail what their government is allowed to do. The Court can only decide whether or not the Government recognizes that right, and, by extension, whether or not the Government still considers itself bound by the Constitution.

My predictions: The D.C. Circuit decision will be upheld, and the D.C. laws in question will be voided. That’s all. There will not be strong guidance on setting a standard of review, simply a finding that the D.C. laws are  infringing under any standard.

Nevertheless, as Korwin said in March, “Whatever direction the Court provides, D.C. will end up as a model for the rest of the nation, and the Pandora’s Box is open.”

Nor will there be broad declarations of the meaning and breadth of the Second, other than possibly torpedoing once and for all the “collective” interpretation that it only protects the power of the several states to raise militias (non-binding musings in dicta notwithstanding).

The author of University Diaries, UD, will be going to a gun show, and plans to contact someone about a trip to the range.

She compares two extreme viewpoints there.

First Amitai Etzioni, a GW sociologist:

If one holds, as most studies do, that guns provide more danger than protection, and notes that other democratic societies greatly limit private gun ownership, one is naturally troubled by the threat that the new scholarship may help to overturn a strong and long-established endorsement of gun control laws by the Supreme Court. With so much at stake, should scholars refrain from conducting studies that might have grave unsettling social consequences?
… Would my colleagues put on their web site a study that demonstrating how to make the Ebola virus in a kitchen sink? Would they publish ways to make nerve gas in one’s basement? As I see it, when the results of a publication may well be fatal on a large scale, great weight should be given to social prudence.
… [M]y good colleagues in law schools [should] consider whether they should devote themselves to an academic pursuit other than undermining the Supreme Court rulings that have rendered gun control possible and legitimate…

To her credit, UD:

…finds Etzioni’s analogies — an individual in possession of a gun is a deadly virus, a nerve gas — as well as his aristocratic conviction that the possibly correct reading of one of our nation’s more important documents ought to be kept from ordinary American citizens, pretty stunning.

Stunning indeed, not least because Etzioni is comparing Second Amendment scholarship, not guns, to Ebola and nerve gas. We’ll assume ignorance, not malice, to be behind his comments about “most studies” and “a strong and long-established endorsement of gun control laws by the Supreme Court”.

Second, she cites GW law professor Robert J. Cottrel, who says:

[A] society with a dismal record of protecting a people has a dubious claim on the right to disarm them…. [I]t is unwise to place the means of protection totally in the hands of the state….

[T]he ultimate civil right is the right to defend one’s own life…. [W]ithout that right all other rights are meaningless.

Both of these quotes are from NRA websites; UD is not relying on one sided sources. She is honestly and thoroughly investigating guns and the Right to Keep and Bear.

Whatever conclusions she comes to, whether she elects to become a gun owner or not, she will have honestly earned her opinion, and I for one will respectfully listen to whatever she has to say.

[Series note]

I didn’t realize this was going to turn into a series. I’ve retitled the posts so far, but have left their URLs untouched so as not to break any existing links. Note that my numbers are not consistent with UD’s.

Posts in this series:

Prof Meets Gun 4: UD Visiting Gun Show, Range (this post)

Prof Meets Gun 3: On Scholars Visiting Gun Ranges

Prof Meets Gun 2: Gun Range Visit & Gun Answers

Prof Meets Gun 1

I was finally moved to look up “certiorari” while reading the Congressional Research Service report on “District of Columbia v. Heller: The Supreme Court and the Second Amendment“. A quick skim shows that it’s a useful summary of a few key past Circuit and Supreme Court decisions. The most interesting part is the “Analysis and Conclusion”, the last page and half, which examines the implications of several possible decisions.

it seems likely that the decision will be drafted in a manner that is narrowly and specifically tailored to the District’s uniquely restrictive firearm registration and possession regulations. This approach would presumably leave lower courts with scant guidance on the proper standard to apply in reviewing less restrictive gun control laws.97 Concordantly, it is unlikely that any individual rights holding would be drafted so broadly as to implicate any existing federal firearm laws. The Supreme Court and the appellate courts (including the Fifth Circuit in Emerson) have affirmed the broad authority of Congress to regulate firearm possession on numerous occasions, and there is little evidence to indicate that these provisions would be found to be constitutionally problematic under any individual right standard the Court might delineate.

In addition to the extensive scope of the gun control provisions that are at issue, the unique constitutional status of the District itself will likely contribute to a decision that leaves many open questions even if the Court affirms an individual right interpretation.

(Via Say Uncle.)

The best we can expect, I think, is that the Court will find that the 2nd does indeed protect an individual right, and that the D.C. statutes unacceptably infringe that right, but will not establish tests which Federal laws applied to the states, or state or local laws, must pass. Nor will they set a “standard of review”, that is, how strictly courts should hold the Second Amendment. (The usual standards are “strict scrutiny” or “rational basis“.) This will crack, but not break, the seventy year old judicial ice. It will take two or three more Supreme Court decisions on Federal gun laws in the states, and the most egregious state and local laws (Chicago is often cited as a likely target) before laws start being broadly challenged.

As I’ve said before, the worst is that the Court upholds the D.C. laws. This would flatly declare that the Federal Government no longer considers itself bound by the Constitution, something many of us already suspect. I think this is very unlikely.

[edited for clarity]

Today marks the start of the American Revolution at Concord and Lexington–The Shot Heard Round The World, “the crack of terrible dawn“. Crittendon has Gen. Gage’s orders to destroy the colonial militia, Paul Revere’s account of his ride, and numerous “sworn accounts” of the ensuing action.

Orders from Gen. Thomas Gage to Lieut. Col. Smith, 10th Regt. Foot, 18 April 1775:

Having received intelligence, that a quantity of Ammunition, Provisions, Artillery, Tents and small Arms, have been collected at Concord, for the Avowed Purpose of raising and supporting a Rebellion against His Majesty, you will March with a Corps of Grenadiers and Light Infantry, put under your Command, with the utmost expedition and Secrecy to Concord, where you will seize and distroy all Artillery, Ammunition, Provisions, Tents, Small Arms, and all Military Stores whatever. But you will take care that the Soldiers do not plunder the Inhabitants, or hurt private property.

It can’t be repeated often enough: the opening shots of the American Revolution were fired over gun control.

Capt. John Parker, Lexington Militia, alleged remarks at Lexington:

Stand your ground. Don’t fire unless fired upon, but if they mean to have a war, let it begin here.

There will be no celebration here in Texas. I can find no mention searching The Houston Chronicle’s website. Nothing at NPR.

Mark it yourself by going to Crittenden’s, and reading some of the accounts.

Doc Russia clarifies the Second Amendment with a clever bit of substitution:

while we may not like what the second amendment says inn some places, we cannot choose to quote “a well-regulated militia” while we ignore “shall not be infringed,” or vice versa. I think that we have been focusing too much on the word militia, and too little on well-regulated. After all, what would be the difference between a well-regulated militia, and a poorly-regulated one?

Training.

It was a revelation to me, and when it occurred to me, I was actually a little pissed that it had not occurred to me earlier. Why are even gun banners okay with cops carrying guns? Because they are trained to do that. Why is a seventeen year old flying gang colors with a machine gun terrifying, but the same seventeen year old with a machine gun is reassuring when he wears the uniform of a US Marine? Because the Marine is trained to use the machine gun, and the uniform is the outward sign of that training.

Think about it. The militia was a group of unpaid citizens who volunteered to go through the training necessary to bear arms in the field against aggressors. To shorten this, let us substitute “militia” for “an armed body of citizen volunteers.” If we now apply “well-regulated” to mean “training,” the second amendment seems to become somewhat clearer.

“A trained, armed body of citizen volunteers, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

…

So, how would this play out in [D.C. v. Heller], should the Supremes decide to rule along these lines? Well, it would be a simple matter of saying that whatever requirements the states place upon what the lowest level of training one must have to carry a gun as a public servant is, then that is the level which allows a public citizen to carry the same gun.

The more that I think about it, the more I like this idea, for several reasons.

First, it actually clarifies the constitution, instead of either taking sides on an issue, or kicking the can down the road. Second, it is consistent with the rest of the constitution in its tradition of setting up powerful interests in competition with each other. So, you have a state which must reconcile what it will allow its citizens to do, and then holding its own agents to the same standards. So, this effectively eliminates the possibility that the state governments will say that it’s okay for their cops and political allies to defend themselves, but the average citizen cannot. Along the same lines, it will help to diminish the growing ‘us versus them’ mentality in many police departments where they hold cops to one standard, and “civilians” to another (never mind the fact that unless you are subject to the UCMJ, you are a civilian). It also eliminates the ridiculous situation where a retired combat veteran MP is not allowed to own a gun, but the city dog catcher, who has had no formal firearms training, can.

This solution also allows for the individual states to decide what requirements are appropriate for them, and does not force Hawaii to conform to the same standards as Texas, which is also consistent with the manner in which the constitution was written with strong states’ rights.

…

This training threshold would be the highest standard that the state could impose upon the individual, as anything more would be considered unreasonable. The State would of course retain the ability to loosen its requirements for citizens, and may, indeed, not have any requirements, should it so choose.

[Emphasis and minor spelling and grammar editing mine.]

Want to talk about “reasonable regulation”? This is what it looks like. Gun-grabbers often talk about how you have to be trained and licensed to drive a car, but guns are “completely unregulated”. [Scare quotes on that last because, of course, in most jurisdictions it's simply not true--and in some jurisdictions, such as D.C., New Jersey, and Chicago, it's scarily not true.]

Here’s my take on militia training. I should emphasize that this training must be also be available to adults, for those who didn’t take the suggested high school course.

Also, as noted in my militia article, passing this level of training must not be a prerequisite of home firearm ownership. Disabled persons have the right to defend themselves from their wheelchairs or even beds. Nevertheless, I think it’s reasonable to impose legal training requirements, and possibly even a very minimum range requirement. (If you can’t hold your aim on a target seven yards away, sorry, but you are a hazard to your neighbors. Otherwise, this is a good goad to acquiring your license before being confined to your bed.)

Of course, while age or infirmity might disqualify from active militia service, your right to arm yourself in your home must never be revocable except by due process–which means jury trial, not some pissant administrative hearing that takes place out of your notice.

===

In his previous article, Doc Russia makes it clear why we must be free to arm ourselves:
Youtube Video Link

Kevin at The Smallest Majority puts up the go-to post for the judicial history of the Second Amendment.

Washington D.C. versus Heller will be argued before the Supreme Court later this month, the first case in almost seventy years to explicitly pit a law against the Right to Keep and Bear Arms. Kevin lays out how the question even comes up.

All you folks who think the slippery slope is inherently a fallacy, this is the existence proof that the slope exists, and works as advertised.

Go. Read. As you hold yourself a free citizen, this is mandatory. There will be no more important Supreme Court case in your lifetime. There may be worse cases to come, laws and rulings that take bigger and bigger bites out of your freedom, but if things do go bad, this is the case that will start the avalanche.

This is it. This is the case wherein the U.S. may finally and fully cut itself loose, and declare the Constitution mere guidelines, a mere road sign, not foundation and framework.

Note well: If the Supreme Court fails to fully uphold Heller the Constitution, it is time to buy guns, not to give them up; time to dig guns up, not to bury them; time to remind Those Who Would Rule who their bosses are. Either the Court holds the line, and gives us firm ground to stand on, or the Great Contract is null and void. The Constitution binds the Government, not us.

If the Court will not defend our rights, then it’s our job.

[update]
Lauren Buechner and Fritz Ernemann at Cornell have an excellent, and to my eye, well-balanced summary of the main points in Heller, as put forth in some of the key briefs before the Court.

It is flawed in its first paragraph by naming the respondent as Joseph Heller (the Catch-22 novelist) and not Dick Heller (the security guard who is trusted with a firearm when guarding people more important that you or I, but not in his own home). I’m sure I’m not the only person to email the authors asking for a correction, and I trust the error will be fixed soon.

Turk Turon caught the mistake over at Of Arms and the Law.

[update]
I emailed Buechner and Ernemann, and they have fixed the name problem. They are taking the confer v. protect controversy seriously and are reviewing their position, but at this point believe their usage is consistent with the Court’s, and they do not intend to slant their discussion one way or another on the main points.

C. Cannon and D. King have both posted what I believe to be a reasonable argument for “confer” in the discussion thread at Arms and the law.