Chicago Pols Should Listen To Their Constituents

The gun-grabbers don't listen to conservatives, the National Rifle Association, or even the United States Supreme Court. In their zeal to blame guns for the ever-increasing violence in Chicago, they don't even listen to their own constituents. The Democratic leaders and their liberal supporters still cling to their belief that if only guns were outlawed, the deaths in Chicago would magically cease. But the citizens of Chicago don't believe it anymore.

In a recent poll conducted by Illinois pollster Michael McKeon in Chicago, the locals blamed easy access to guns as the main cause of the spate of violent deaths by a whopping six percent. Yes, you read that right—six percent. Now there's a headline you're not going to see in the Chicago Tribune. Despite all the hype from former Mayor Richard M. Daley, current Mayor Rahm Emanuel, and the Rev. Jesse “Increase the Peace” Jackson, Chicagoans are still capable of separating the wheat from the chaff.

It is such an article of faith for politicians like Emanuel that guns are the cause of violence that he can't even be bothered with addressing the true underlying causes. He is too busy trying to keep the evil folks at Chick-fil-A from coming into town. Rahm: Stop talking and start listening. Here's what your electorate thinks about the accelerating murder-by-gun root causes (aren't Democrats supposed to be deeply concerned about root causes?):

20% blame gangs.
13% blame lack of parental guidance.
12% blame lack of economic opportunity.
8% blame it on the need for more police officers.
7% blame “young people having nothing to do.”
6% blame easy access to guns.
(the remaining 34% blamed various causes at a rate less than 6% or had no opinion)

Even if you add gangs (with guns) and young people (with guns) to guns (alone), you still have only 33% of the population of Chicago blaming guns for the murder rate. But 100% of Chicago Democratic politicians and liberals blame the guns rather than the people using them. Jesse Jackson correctly identifies most of the victims of the violence as black, but is somewhat silent on who most of the perpetrators are. It's easier to blame guns than admit most of the perpetrators are also black. Says Jackson: “Far more African-Americans are killed on our streets than on foreign battlefields. If a foreign foe took these lives, we would mobilize armies and armadas to stop them.” Like Emanuel, Jackson is ignoring the opinion of the 60% who think gun violence is a symptom, not a cause.

Let's get the racist element out of the racial calculation. The numbers in the urban war zones are largely African-American. But it's not from some innate black tendency toward violence. It is covered rather by the “root causes” that the Chicago citizens listed (37% of whom are African-American), and which are encouraged by Democratic/liberal policies—government-dependence, the disintegration of the black middle class and the black family unit, welfare incentives, ungodly high unemployment rates among black youth, and over-tolerance of misbehavior based on white guilt stemming from past racist policies.

The simple fact is that Chicago continues to have some of the toughest gun-ownership laws in the nation, and yet remains a leader in gun-related violence. Chicagoans have figured out that outlaws don't care about gun laws (or any laws, for that matter). More restrictive gun laws won't solve the problem in Chicago. Respect for law will. Enforcement of laws already legitimately on the books and in accord with the Supreme Court Second Amendment rulings is the strong right arm of respect for the law. As long as law-abiding citizens are restricted in their ownership of guns while outlaws are not, the violence in Chicago won't end. Chicagoans have figured that out. The Chicago politicians haven't.

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Time To Buy Gun Manufacturing Stocks

Here’s your hot stock tip for the day. Buy Colt. Buy Smith & Wesson. Buy Ruger. Hell, buy ‘em all. Gun sales are surging dramatically nationwide. Barack Obama has stimulated gun sales. A plurality of people buying guns in the last thirty days say that they are making the purchase now because Obama and Company want to confiscate guns during his next administration.

This is not the first time Obama has unintentionally stimulated the gun business. The “Cheaper Than Dirt Gun Store” in Texas reports that gun sales set a record for February, and only the election of Barack Obama in 2008 came close to producing such record-setting sales. Prior to and during that election, Obama made his disdain for private ownership of guns abundantly clear. He swept into office with majorities in both houses of Congress, equally determined to get guns out of the hands of American citizens.

The US Supreme Court in Washington DC declared that gun ownership was a fundamental constitutional right, then took on a Chicago case which expanded on the earlier decision by declaring that gun ownership is an individual right rather than a collective right occasioned by the necessity of a well-regulated militia. The latter decision also established that the fundamental right was protected from state as well as from federal infringement. Those two decisions make gun-grabbing a lot more difficult since the states and the federal government can no longer infringe on gun ownership for anything less than a compelling state interest rather than the previous and easier test of reasonableness.

Since then, the people have seen just how dedicated the Obama administration is to undoing those two decisions. Operation Fast and Furious appears to be a Keystone Kops attempt by the administration to prove how easy it is for criminals to purchase guns, requiring federal and state intervention in gun ownership. It went horribly wrong, and innocent people died as a result. Worst of all, criminals have always found it easy to purchase guns illegally and didn’t need the help of the federal government to prove it.

Two other factors, aside from the fact that Obama has an “odds-against” chance of being reelected, have spurred the current massive increase in gun purchases. First, Obama has daily proven that the law and the Constitution mean little to him and that he thinks the separation of powers is an impediment to efficient progressive bureaucratic government. So he has increasingly relied on executive orders to circumvent Congress and the courts. There’s plenty of reason to believe that he would use one or more of his czars to start using regulations instead of law to prevent citizens from legally purchasing guns.

The other is that he and his gun-grabbing Secretary of State are actively supporting United Nations “arms control” initiatives. Once again, they intend to try to get in through the back door what they couldn’t get in through the front door. Go along with UN gun-grabbing (particularly small arms and handguns), pass a UN resolution, then try to slide a treaty obligation past the Senate in order to bypass the Constitution entirely. It’s highly unlikely that they could succeed in getting the Senate to ratify such a treaty, but they will try mightily. And in that unlikely event, the Supreme Court would be very likely to strike the treaty down for interference with what it has recently declared to be a fundamental constitutional right.

No doubt some of the surge in gun sales is attributable to conspiracy theories and survivalist mentality. But there are plenty of perfectly sane, thinking and fearful Americans who believe that this is no time to risk their family’s safety betting on Obama losing the election and/or abiding by the law or the Constitution if he wins. Hell, the only reason I’m not rushing out to buy a gun is that I already own one and know how to use it (the picture is a .357 Colt Magnum Trooper Mk V revolver, almost identical to my own).

We need to give Obama a round of applause. This is the first stimulus his administration has produced which benefits private enterprise, doesn’t cost the taxpayers a dime, has a proven track record of success, and reinforces instead of diminishing the second item on the Bill of Rights. Take a bow, Mr. President.

On a related note, after this article was originally written, a federal judge in Maryland has struck down the state's handgun permit law. The law allowed issuance or re-issuance of concealed weapons permits only if the applicant could show "good and substantial reason" for needing the permit. The judge proved he understood the Supreme Court decisions which now hold that only a compelling state interest can override the fundamental right to keep and bear arms. The Maryland law did not satisfy that requirement. Put simply, the judge's ruling enhanced the "fundamental rights" issue in the Supreme Court decisions. "One does not need a 'good and substantial reason' to exercise one's First Amendment right to speak freely, nor does one need a 'good and substantial reason' to exercise his Second Amendment right to bear arms." Bravo, Judge.

Food for thought: Once the news of the surge in gun sales gets out in the MSM, how long do you think it will be before Eric Holder starts announcing that gun control is a vital necessity because white folks are buying guns to assassinate the President?
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Gun Hysteria On The Right

At the risk of offending my fellow conservatives and fellow gun-owners, I feel compelled to point out that Second Amendment absolutism is as naive as First Amendment absolutism. Yes, the left has long sought to get our guns out of our hands on multiple pretenses and factual inaccuracies. The old NRA slogan "when guns are outlawed, only outlaws will have guns" remains as true today as when it was first coined.

But some pro-gun advocates need to lighten up and recognize that the government occasionally comes up with a reasonable idea. The FBI recently told military-surplus stores to keep records of bulk purchases of the following items: Weatherproof ammunition or match containers, meals ready-to-eat, night vision devices, high-power flashlights, gas masks, high capacity magazines, and bi-pods or tripods for rifles. The handout to storeowners also advised them to require valid ID from all customers not personally known to them, talk to customers, ask questions, and listen to and observe their responses, watch for people and actions that are "out of place," make note of suspicious statements, people, and/or vehicles, and if something seems wrong, notify law enforcement offices.

As a Second Amendment near-purist, were I a military-surplus/gun store owner, I would be doing exactly those things, with or without instructions from the FBI. But several gun ownership advocates have gone ballistic (pun intended) over the handout. There seems to be a consensus among them that the government has no business advising private businesses to be watchful for potential terrorists or just plain violent criminals. Oath Keepers, a group of former and current military and police members, have sworn not to enforce unconstitutional government orders, and they include this handout as one of those unconstitutional orders. They are advising storeowners not to comply with the FBI handout.

Now I'm as suspicious of the federal government as the next gun-toting, Constitution-loving, Bible-clinging guy. But even I can recognize FBI instructions which are nothing more than plain common sense. Store owners are not being required to become unpaid FBI and anti-terrorism agents. Rather, they are being asked to do what a good citizen in dangerous times ought to do--assist law enforcement in identifying potential danger. Most of the potentially disastrous attacks planned in America since 9-11 have been thwarted first and foremost by alert citizens who reported suspicious activity to law enforcement.

The handout is part of an FBI program to garner public participation in stopping terrorist attacks and criminal violence. It is called "Communities Against Terrorism." The handout includes the following statement: "Preventing terrorism is a community effort. By learning what to look for, you can make a positive contribution in the fight against terrorism. The partnership between the community and law enforcement is essential to the success of anti-terrorism efforts." Again, a common sense statement backed by proof that community awareness is essential to the efforts to prevent terrorist and violent criminal activity.

Could there be an ulterior motive for the handout? You bet there could. The gun-grabbers in the Obama administration want to identify their "enemies" in the gun-owning community. Furthermore, there is a hint of this mentality in the handout, which says: "Consider as suspicious anyone who demands identity privacy or anyone who expresses extreme religious statements, and those who make suspicious comments regarding anti-US or radical theology." Even a good idea can be perverted, but that doesn't make the idea any less good.

The Obama administration is paranoid about "Christian militias" and "Christian extremists" which largely don't exist. But I'd be the first to report an alleged Christian who wants to blow up or shoot people for having different views. Christianity strongly opposes such violence, but like good ideas, religion can also be perverted. So let's face it--the underlying point of the handout is that Muslims attacked the World Trade Center, even if it were true that this was a perversion of Islam. If so, there are a lot of Muslim perverters of Islam. As for Christianity, both Timothy McVeigh and the Oslo terrorist spouted perverted versions of Christianity and both would have been "suspicious" if they had turned up to buy weapons at my gun store.

And as further criticism of the handout, there is the genuine argument and glaring fact that conscientious gun storeowners attempted to report suspicious gun sales to federal authorities who were participating in the disastrous Operation Fast and Furious. They were told by ATF and FBI agents to go ahead and make the sales, move on, nothing to see here. If government agencies choose to ignore reports of suspicious activity, or worse, are actively participating in the suspicious activities, that is a problem quite separate from the purposes of the handout. Congress is already investigating that deadly fiasco.

Can I see that this common sense approach to preventing terrorism could be detoured or perverted by government authorities? Of course I can. But there is a sensible balancing test in the law (and philosophy) which addresses the issue: "Does the utility of the act outweigh the risk of harm?" In this case, I believe it does. And we must remember that the leftist anti-gun Obama administration will not be in power much longer, nor will the prosecution of terrorist activities be in the hands of the highly-politicized Holder Justice Department forever.

The likelihood of innocent civilians being persecuted as a result of complying with the FBI handout is extremely small. I didn't say impossible, just extremely small. Frankly, I'd like to know why a completely upright citizen would need or want multiple semi-automatic weapons and paraphernalia myself. I wouldn't deny him that right, but I'd sure want to do at least a cursory investigation into what his legitimate purposes are and whether they are for purposes of hunting and self-defense or more sinister purposes.

The burden on the government is to prove that the guns are being purchased for unlawful purposes rather than on the citizen to prove he is using them lawfully. That is a legal distinction which does indeed seem to escape the Obama administration. But we must also remember that for now at least, the Supreme Court has upheld the individual right to keep and bear arms pursuant to the Second Amendment. Yet like the exception to the First Amendment that says you can't yell "fire" in a crowded theater, it is likely that there will be exceptions to the Second Amendment rule.

Multiple gun ownership will not be forbidden by one of those exceptions, but multiple gun ownership for purposes which are a clear and present danger to the safety of American citizens likely will be. Still, the FBI handout isn't advocating gun confiscation. It is merely asking for citizen participation in identifying suspicious activity and staving off potentially deadly terrorist and criminal use of deadly weapons. I support the theory completely. It remains to be seen whether I will support the way it is practiced.
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The Agenda Behind The Gun Scandal

Project Gunrunner, Operation Fast and Furious, “Gunwalker.” Take your pick for the name of the federal project which has become a major Obama administration scandal. We previously discussed the scandal itself here and here. The operation was almost Kafkaesque in its planning, implementation, and results.

But now we are beginning to see hints that it may have been equally Machiavellian. Purported to be a sting operation to trace guns to the Mexican cartel bosses, it may have been a stealth gun-control initiative flowing from the White House and its allies in Congress.

The operation was so insane and so deadly that many people began to question why the federal government would involve itself in law-breaking and gun-trafficking at all. We may have gotten the answer yesterday. On Friday, July 15, a group of Congressmen and a Fish and Game official held a press conference to announce a new initiative: “Stop Gun Trafficking and Strengthen Law Enforcement Act.” So far, we know that Operation Fast and Furious involved agents from ATF, DOJ, FBI, DEA and even the IRS putting serious weaponry into the hands of cartel-members. If the proposed act were to pass, those are the same agencies which would be charged with enforcing the act.

At least one wag has suggested that the proposed act be retitled “the Eddie Espinoza Act” in honor of the Democratic mayor of Columbus, New Mexico, who has been convicted of trafficking guns to the Mexican drug cartels. The act is sponsored by Rep Carolyn B. Mahoney (D-New York), Elijah E. Cummings (D-Maryland) and Carolyn McCarthy (D-New York). The mission statement reads: “This act establishes a dedicated firearms trafficking statute to empower law enforcement to keep high-powered firearms out of the hands of dangerous criminals, including Mexican drug cartels.” I’ll leave the irony of that statement to our readers.

The act has very little chance of passing. So why bring it up in the first place? The most obvious reason is to draw attention away from the ever-growing scandal. How can a party that is so obviously concerned with protecting the public and empowering law enforcement possibly be charged with gun-running of its own? It’s a ploy, and a rather weak one at that. But that may not be the only reason.

Another reason, more subtle and more dangerous to the Second Amendment and recent Supreme Court decisions confirming the right of individuals to own firearms is to deflect attention away from President Obama’s recent executive order requiring that multiple gun sales be reported to federal agencies (particularly ATF). The President seems untroubled by the fact that he has no constitutional authority to issue such an order, which is nothing more than another end-run around Congress.

The idea that this administration and its allies in Congress would push a program that endangers the stability of the Mexican government and puts American lives in danger has been routinely pooh-poohed by the left and the mainstream media. But there is emerging evidence that in its zeal to revivify the dying gun-control movement this administration has done exactly that. On top of the big Fast and Furious operation, it now appears that the Tampa office of the ATF allowed nearly 1,000 firearms to be smuggled to the murderous MS-13 gang headquartered in Honduras. Other similar operations are being investigated in Texas and Oklahoma.

Most recently, an e-mail from Mark R. Chait, assistant director for ATF field operations to William Newell has been made public. Newell is the special agent in charge of the Phoenix Field Division of the ATF. The e-mail reads: “Bill—can you see if these guns were all purchased from the same source and at one time. We are looking at anecdotal cases to support a letter on long gun [rifles] multiple sales (emphasis added).” Additional e-mails seem to confirm that ATF and DOJ officials were using Fast and Furious to set the stage for the President’s executive order.

If the Issa/Grassley hearings on Operation Fast and Furious produce more hard proof of this collusion, there should be multiple criminal prosecutions. Barack Obama seems to want desperately to establish government by Presidential decree to speed up his leftist agenda and anti-gun initiatives. It is conceivable that in this case, government by fiat has already cost the lives of too many Americans. It’s time to return legislative power to Congress and true power to the people whom Obama is failing to protect. An unarmed citizenry is a vulnerable citizenry. Selling guns to murderous criminals in order to disarm American citizens is a travesty of unimaginable proportions.

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Gun Control And Swiss Suicides

Most liberals tell us they don’t hate guns, and they have no plans to confiscate yours. They just want to stop the “destructive effects” of guns, by which they mean “gun crime.” But is that true? What just happened in Switzerland says it isn’t.

Switzerland has a lengthy gun tradition. For at least 800 years now, the Swiss have drafted virtually every able-bodied male into the army. As part of their service, they’ve kept their weapons at home. And when they left the service, they were allowed to keep their weapons. Thus, it’s not uncommon for Swiss families to have rifles, pistols, and even fully automatic machine guns in their homes. Current estimates say there are two million guns in Switzerland, a land of only eight million people.

Since we “know” guns cause crime, Switzerland must be a killing zone, right? Actually no. Gun crime in Switzerland is virtually nonexistent. It’s so low they don’t even bother keeping official statistics on gun crime. It is, in fact, lower than the gun crime rate in Japan, which absolutely bans guns. Switzerland ranks as the fourth safest country in the world and its violent crime rate is 1/100th that of England.

That means Switzerland must have strong gun control laws, right? Actually, no. Gun sales by the Swiss government are registered. BUT gun sales from one individual to another are regulated only in five of the twenty-six cantons. Retail gun dealers do not keep records of over-the-counter transactions, nor are such transactions reported to the government. So why do groups like the Brady Campaign claim the Swiss are heavily regulated? Because Switzerland proves that (1) the presence of guns does not cause crime and (2) the absence of gun control does not cause crime.

Despite the almost nonexistence of any gun harm in Switzerland, an international coalition of leftist groups recently tried to pass a law to take guns away from Swiss homes and require they be kept in armories. Sanity prevailed and the initiative lost: 20 of 26 cantons rejected the initiative, as did 56.3% of the population (it had to be approved both by the people and the cantons to pass).

So what was the gun groups’ ostensible reason for pushing this imitative? Gun suicides. According to these groups, Switzerland has the highest level of gun suicides in Europe. But is that a legitimate claim? Consider this.

1. Switzerland’s suicide rate is not appreciably higher than the rest of Western Europe, and is significantly lower than Eastern Europe. So there’s no logical reason to think guns contribute to Switzerland’s suicide rate.

2. Nor is gun suicide a serious problem. Switzerland has about 1,500 suicides each year, with about 340 (23%) of those involving guns. But this represents only 0.00425% of the population.

3. Suicide is acceptable in Switzerland. Indeed, Switzerland has become infamous for “suicide tourism” because you have a right to assisted suicide in Switzerland if you are “suffering from an illness that inevitably leads to death, or from an unacceptable disability.” In other words, you don’t even need to be suffering yet, when you decide to off yourself. Several people have used this law to kill themselves long before they began displaying symptoms of diseases. So logically, if there’s nothing wrong with committing suicide at the nearest suicide booth, then why is it suddenly a crisis when guns are used?

This is the real issue. Gun control groups have created a pretext. That have seized upon something they would otherwise consider acceptable when guns aren’t involved and they’ve spun this into a crisis that requires almost every household in Switzerland to hand in their guns, even though this "crisis" involves only 340 people a year, i.e. less than 0.00425% of the population -- 1 out of every 25,000 people (three people per NFL stadium). And to make this number sound large, they’ve compared it against other countries in a way that makes it sound large, even though overall suicide rates in Western Europe are fairly similar. . . and the slight increases in Switzerland and Denmark can be accounted for by assisted suicide.

What this tell us, is that there is a real dishonesty among the gun control crowd, the same dishonesty that has them lying about the level of gun control in Switzerland because Switzerland puts the lie to all of their claims. And what they're trying to do with this initiative is to eliminate the world's most obvious example that guns don't kill people, liberal permissive culture kills people.

Finally, let me point out the other side of the equation which the gun groups conveniently ignore. Do you really think Switzerland is the fourth safest country in the world by accident? Or do you think the possession of these weapons by everyone has a role in that? And if that’s the case, ask yourself two questions: (1) how many of those 340 suicides will actually be stopped by this, and (2) how many of those 8 million people will die as victims of crime once they’re disarmed?

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Supremes Get Guns Right, Reasoning Wrong

Just in case you're wondering why I picked that particular gun to start a post on the recent Supreme Court decision on gun ownership, it just happens to be my own handgun--a Colt .357 Magnum Mark V Trooper. I can't keep up with Dirty Harry, since I'd get a hernia carrying his .44 Magnum.

On June 28, the United States Supreme Court expanded the individual gun ownership right it found in the Heller federal jurisdiction to the states in McDonald vs. Chicago. The onerous gun ownership laws in Chicago were nearly identical to those struck down in Washington DC as a result of Heller. But the latter decision involved only gun ownership and possession in federal jurisdictions, and we had to await the McDonald decision to find out if the high court would expand the right to state jurisdictions.

Those of you who have read my legal posts in the past may remember that I consider the reasoning behind a court decision to be as important, if not more important, than the actual majority opinion itself. And the McDonald decision is one of those landmark cases that reached a result I strongly approve of using legal reasoning with which I almost entirely disagree. Using the wrong reasoning to get the "right" result usually leads to years of litigation over matters which were not intended to relate to the decision, and also often erode or alter the very right the decision purports to protect.

As an example of what I mean, when I was teaching constitutional law, I used to wake up the nodding students by stating "Brown v Board of Education was wrongly decided." Since I taught in liberal schools in multiethnic and multiracial arenas, that always got their attention. The automatic assumption upon hearing that statement was "this guy believes that Southern militant racial segregation should have continued unabated." Nope. But it gave me the opportunity to teach them that sometimes a Supreme Court decision creates as much confusion as it resolves.

The high Court in Brown could [and should] have ended public school racial segregation once and for all, simply and effectively, by deciding on the basis that "the Constitution forbids the government to discriminate on the basis of race, creed, color, national origin, or prior condition of servitude." Period. But the Court felt it had to make a grandiose statement, and used the words of [then] ACLU lawyer Thurgood Marshall: "Separate is inherently unequal." That's not an announcement of law--it's a social opinion, based on no solid ground other than "it sounds right," and litigation that has next-to-nothing to do with racial discrimination has flowed from that one statement ever since.

The decision which indeed did end racial segregation in the public schools, at least eventually, raised all kinds of wonderful legal playthings for lawyers to fool with right up to today. There used to be a lot of schools which were boys schools and girls schools. But separate is inherently unequal, isn't it? So most public schools separated by sex were banned, and the concept worked its way up through the college and university levels. Severely handicapped children need special care, whether the handicap is physical, mental or both. There used to be many caring school districts which made special arrangements for those children and put them into separate classrooms and provided separate accommodations for them. But, let's not forget, separate is inherently unequal. So we've gone through years of litigation and "mainstreaming" of the severely handicapped into regular classrooms.

And of course, sports were affected as well. Not only did the girls get a promise of equal treatment and equal financing of sports with the guys, Congress even felt it necessary to clarify the Supreme Court's clarifications by passing Title IX, aka the "males and females are exactly alike" statutes.

We are probably going to see much of the same thing after McDonald. The High Court decided that the right to keep and bear arms is an individual right enforceable against the states and municipalities as well as the federal government. So far, so good. The majority justices rejected dissenting Justice Breyer's argument that "there is no popular consensus that the right is fundamental." The majority held that "we have never held that a provision of the Bill of Rights applies to the States only if there is a 'popular consensus,' and we see no basis for such a rule."

In another odd twist of liberal logic, Breyer (this time joined in dissent by Justice Stevens) opined that "the Court should not interfere in this particular area of state versus federal government relationship." This comes from the same justices who have time and again written decisions in which "federalism" always means "complete control of the legal field by the central government in D.C." The majority's counter-argument was straightforward and clear: "Incorporation of the Second Amendment right will to some extent limit the legislative freedom of the States, but this is always true when a Bill of Rights provision is incorporated. Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights." Yet liberal jurists can find, without much effort, that the Constitution protects homosexual marriage, but can't see that a fully expressed right such as the Second Amendment should apply universally.

Justice Stevens went so far as to say "the relationship between the Bill of Rights' guarantees and the States must be governed by a single, neutral principle." Uh, yeah. And that's exactly what this decision appears to do. It doesn't create some new mystical right found in a constitutional umbra, penumbra or emanation. It merely says that one of the ten basic rights specifically announced by the Founders and applied to the states after the Civil War is so basic as to require enforcement at all levels of government.

OK, so how could I find fault with any of that? For the same reason that Clarence Thomas is my favorite justice. We got where we conservative gun owners wanted to be, didn't we? But did we get there the right way? Thomas thinks not, and again I agree with him. Four of the five justices found that the Fourteenth Amendment required incorporation of the Second Amendment for the states as well as the federal government on the basis of the Due Process Clause. Justice Thomas (and I) respectfully disagree. In his opinion concurring with the majority result, Justice Thomas again pressed the issue of incorporation based on the Privileges and Immunities Clause rather than Due Process.

Until the Warren Court made mincemeat of the words, "due process" meant the same thing it had meant to the Founders, which is to say "procedural due process." Every poor, black, rural nonentity was guaranteed that the courts would treat him in exactly the same way they would treat a rich, white, urban power broker. The Warren Court took the obscure and rarely previously used "substantive due process" concept and made it the order of the day. As opposed to using clear wording and clear intent as it actually exists in the Constitution, it now became the duty of justices to find ways to guarantee the "right" outcome based not on law and precedent, but on their own personal opinions of what the Constitution should have said.

Under Thomas's reasoning, any clear right that is guaranteed by the Constitution and applicable to the federal government must also be incorporated for the states in order to protect the privileges and immunities of every citizen equally. Group rights and "how things ought to be" don't enter into the formula the way substantive due process opinions do. If a citizen of Washington DC enjoys the right to own his own gun because of the Second Amendment (Heller), then a citizen of the municipality of Chicago, state of Illinois must enjoy those same privileges and immunities (McDonald).

It was the time and the opportunity to overturn the findings in the Slaughterhouse Cases of the late 1800s, restore the full and clear meaning of the privileges and immunities clause, and undo the damage done by the activist judicial supremacy advocates using substantive due process as their excuse to legislate from the bench. Those of us who advocate this plan of restoration are very vocal and very determined, but we are also still a small minority in the legal community, as evidenced by the four conservative justices who still found it necessary to incorporate the Second Amendment via the Fourteenth using due process as the basis rather than privileges and immunities.

On the less weighty side of the decision, I also feel I should point out that Obama appointee Sonia Sotomayor, as one of the dissenting justices, turned out to be both the legal ignoramus and liar that many of us warned she would be. During her confirmation hearings, she responded to a direct question on the subject by stating that she believed that Heller established once and for all that gun ownership was a fundamental right guaranteed to individuals, not just to groups (such as militias). But she joined in the dissent which said "I can find nothing in the Second Amendment's text, history, or underlying rationale to protect the keeping and bearing arms for private self-defense purposes."

Aside from the fact that those words are just plain wrong, there is the minor matter of the fact that "self-defense" is only one of the reasons for the guarantee--the major other reason being the right of the citizen to oppose by force of arms an oppressive government. The minority, including Sotomayor, dissented largely by stating that rather than limit the discussion simply to whether Heller should be extended to the states, Heller should just be overturned. I hope our conservative Republicans on the Senate Judiciary Committee keep that in mind while vetting Elena Kagan during her confirmation hearings. Kagan wonders whether the military should have guns--imagine what she thinks about individuals having that right.
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The Great Gun Shouting Match. . . er, Debate

Readers ask, Commentarama delivers: today, we talk about guns. The problem with the gun debate is that it is dominated by misinformation and myth, and is fought on emotion and false reasoning. Let’s cut through it all and talk about the facts.

The Anti-Gun Arguments

At first glance, the pro-gun people seem paranoid. Every time someone suggests some reasonable restriction to make guns safer, they start screaming about this being the proverbial nose under the tent for the eventual banning of guns. But there is a very rational basis for their fear. Many on the left are seeking to ban guns. Indeed, it doesn’t take long to run an internet search to find groups dedicated to banning guns. Or take, for example, Sen. Dianne Feinstein (D-Calif), who stated:

“If I could have gotten 51 votes in the Senate of the United States for an outright ban, picking up every one of them, Mr. and Mrs. America turn them all in, I would have done it. I could not do that. The votes weren’t there.”

Many of the anti-gun groups talk openly about incrementalism, eliminating guns one step at a time. Other groups, like the Brady Campaign, are dishonest about their motives. They specifically state that they are not opposed to gun ownership, but then advocate the banning of almost every type of gun and the enforcing of such restrictions that gun use would be virtually unattainable by average citizens.

And why do they want to ban guns? In many ways, guns, like cars, represent a boogey man for the left. A gun is power. Leftists do not believe that individuals should be trusted to exercise power. They believe that only the state and its panels of experts should be allowed to exercise power. Thus, allowing individuals to retain such power is anathema to leftists, particularly because the power afforded by guns is the power to hold off or to make timid the state, which the left thinks should be free to call the shots.

But leftists rarely frame the debate in this manner because that’s a losing proposition in America. Thus, they argue instead that guns are dangerous. They note particularly that “automatic weapons” and “assault weapons” are menaces to society and particularly the police. They argue that guns cause crime -- particularly mass killings, and that gun ownership is unsafe because it leads to accidental death and suicide. Most of these arguments are myth.

Debunking The Myths

Sadly, what most people know about guns comes from Hollywood, and Hollywood is about as inaccurate as you can get when it comes to guns. And these inaccuracies are mindlessly repeated by reporters, who get much of their information from anti-gun groups. The myth of the automatic weapon and the assault weapon are the two largest of these inaccuracies.

The “Automatic” Weapon Myth

One of the biggest myths regarding guns is the myth of the “automatic weapon.” An automatic weapon is a firearm that discharges multiple bullets when you pull the trigger. If you accept the image offered by Hollywood or the media, everyone has an automatic weapon and they are using them in street fights every day. Nothing about that image is true.

The National Firearms Act of 1934 placed restriction on the ownership of automatic weapons. These included background checks and registration of owners. In 1968, it became illegal to import automatic weapons. In 1986, the Firearms Owners’ Protection Act of 1986 made it illegal to manufacture automatic weapons. Since the passage of the 1934 Act, only a handful of people have been killed with automatic weapons.

What the media is really talking about are “semi-automatic” weapons. A semi-automatic weapon discharges only one bullet per pull of the trigger, just like a revolver. It does not “spray” bullets.

Nevertheless, anti-gun groups routinely describe semi-automatic weapons as “spraying” bullets. For example, the Brady Campaign states in their FAQs that “semi-automatic assault weapons are designed to be spray-fired from the hip.” Similarly, every Hollywood criminal or villain uses automatic weapons to randomly spray bullets everywhere. Watch any news report and you will hear about the latest criminal to use or carry an “automatic” weapon. These reports often end with pleas from the reporter to ban such evil weapons because cops just can’t compete with the guys who can “spray” hundreds of bullets per second. This is all false.

The “Assault” Weapon Myth

The second biggest myth regarding guns is the myth of the “assault weapon.” The anti-gun groups and the media love to attack “assault weapons,” which are typically described as identical or nearly identical to military weapons. And if you listen to the media, these are the weapons of choice for criminals. But again, this is all myth.

First, the idea of the “assault weapon” is actually a nonsensical concept. Under Federal law, what distinguishes an assault weapon from a regular weapon is largely cosmetic. For example, does it have a bayonet mount (I dare anyone to find the last causality from a bayonet charge in the United States), does a rifle have a pistol grip, or is the gun a copy of another weapon that is fully automatic. In other words, does it look like (not function like) something that the military would use. Of all the items listed, the one that does actually increase the performance of the gun is the inclusion of a “high capacity” magazine. This would presumably give the gun an advantage over other guns that need to be reloaded more often. But that advantage is slight when you consider how long it takes to reload a gun (even revolvers have autoloaders that allow all six/eight chambers to be reloaded simultaneously).

Secondly, and more importantly, the idea that these are the weapon of choice for criminals is simply wrong. According to the Bureau of Alcohol, Tobacco, Firearms and explosives (ATF), prior to the “assault weapons ban”, assault weapons were used in only 4.8% of gun crimes. After the ban went into effect, this percentage fell to 1.6% of gun crimes.

Similar percentages were found by law enforcement agencies throughout the country. For example, Connecticut found that only 198 of 11,002 firearms confiscated were “assault weapons.” Florida found that only 17 of 7,500 firearms used in crimes were “assault weapons.”

Despite this verifiable fact, various newspapers across the country reported that “assault weapons” were used in 10% of all gun crimes.

Moreover, gun-control advocates, such as Denver Police Chief Ari Zavaras, continued to state: “assault weapons are becoming the weapons of choice for drug traffickers and other criminals,” even though only 14 of the 1,248 weapons then in the custody of the Denver police were assault weapons. That’s 0.6%. And of those 14, only one had been used in a crime of violence.

Anti-gun groups also claim that police officers are being gunned down by assault weapons. This too is a myth. Between 1975 and 1992, of the 1,534 police officers murdered in the line of duty in the United States, only 16 were killed by assault weapons. Of this, the Journal of California Law Enforcement noted:

“It is interesting to note, in the current hysteria over semi-automatic and military look-alike weapons, that the most commons weapon used in the decade to murder peace officers was that of the .38 Special and the .357 Magnum revolver.”

Prevalence of Gun Crime

The anti-gun groups also would have you believe that guns are the tool that allow people to commit guns (some actually think they cause the temptation). But these claims are illogical, are not supported by the statistics, and ignore the benefits that guns provide.

Guns Are Not “The” Cause Of Crime

What percentage of crimes involve guns? If we are to believe the media or Hollywood, all criminals are armed and most use their guns. But a Department of Justice study found that only 36% of criminals convicted of homicide, robbery or assault were armed with a firearm. That’s right, only 36%.

According to DOJ, in 2007, there were 445,000 robberies in the United States, but only 154,000 of those involved a firearm. There were 157,000 aggravated assaults involving a firearm, and another 574,000 that involved some other weapon or no weapon at all. Clearly, crimes occur without the temptation of guns.

Even for murders, where guns were more prevalent, only 10,123 of the 16,929 murders that took place in 2007 involved a firearm of any sort (including shotguns).

And while that may sound like a lot, consider this: First, because of the size of our population, this means that only 1 in every 29,635 Americans will be murdered with a gun. Moreover, to put this into perspective, there are 2.5 million deaths in the United States annually. The 10,123 gun deaths represent 0.4% of the total deaths in the United States. This would place gun murders 43rd on the list of causes of death in the United States behind such other causes of death as diarrheal diseases, maternal conditions, malaria, measles, falls, drownings, and poisonings.

Defensive Use

Further, you need to weigh these deaths against the defensive benefits of gun ownership. Anti-gun groups routinely omit these benefits from their discussions, or try to claim that there are no such benefits. Yet, that is another myth.

Criminologist Gary Kleck co-authored a comprehensive study of defensive gun use. Examining FBI and DOJ data, he concluded that “defensive gun uses by crime victims are three to four times more common that crimes committed with guns.” Another study for the Justice Department found that 34% of felons had “been scared off, shot at, wounded or captured by an armed victim” and that 40% of felons had “decided not to do a crime because they knew or believed that the victim was carrying a gun.”

Indeed, the banning of guns has been shown to increase crime, including murder. When England banned private gun ownership in 1996, crime rates skyrocketed. According to American Enterprise Institute economist John Lott, an examination of information released by the British Home Office showed that the violent crime rate rose 69% following the gun ban (with murders increasing 54%). Interestingly, in the five years prior to the ban, such crimes had been falling consistently.

A county by county examination by Lott of crime rates in the United States, found that right-to-carry states experienced (on average) lower rates of violent crime (27% lower), murder (32% lower), robbery (45% lower) and aggravated assault (20% lower) than states with more restrictive gun laws. Other studies conducted at Vanderbilt University, SUNY Binghamton, Claremont-McKenna College, George Mason University, and the College of William and Mary, have supported Lott’s findings.

Mass Shootings

Anti-gun groups also point to mass shootings, particularly at schools, as evidence that guns are dangerous. But here’s what they don’t tell you. First, many of these shooting sprees could have been stopped if any of the victims had been armed. Secondly, these shooting sprees are very rare. Indeed, while these are highly emotional events, they are statistically insignificant. In the last 10 years in the United States, there have been seven shooting sprees at schools that resulted in three or more deaths. Interestingly, there were only five such shooting in the 23 years before that. This indicates some change in society that should be addressed. But before you blame guns for that change, consider that in the same ten year period that saw seven such shooting in the United States, there were six such shooting sprees in gun-banned Europe, with generally higher body counts.

Accidental Discharge

Anti-gun groups also like to point to “accidental discharges.” They will throw out statistics like the one that firearm related deaths for children in the United States are nine times higher than in the 25 other industrialize countries. Yet, they don’t tell you that almost all of those 25 countries ban gun ownership. And the number of accidental gun deaths pales in comparison to other accidental deaths. Each year, around 1,500 people die from gun accidents. This doesn’t even rate in the top 100 causes of death in the United States. And if guns were as dangerous as claimed, you would think that with 300 million of them floating around the US, these numbers would be much, much higher.

Suicides

Anti-gun groups also like to point to gun suicides. Yet, many of the same people who point so accusingly to gun suicides, also support euthanasia. Blaming the gun for something they think is already acceptable is at best disingenuous.

Moreover, their statistics are garbage. There are around 30,000 suicides each year in the United States. Of those, approximately 12,000 (40%) involved firearms. However, the anti-gun groups claim, only 30% of Americans own guns. Thus, gun suicides are over-represented. Ergo, guns cause suicides. However, this assertion wrongly assumes a causal link that cannot be shown. Indeed, one would assume that there would be a preference for guns as a suicide method because they are 90% effective when used for suicide, as compared to other methods like jumping from high places which is only 34% effective. Ergo, guns do not make people suicidal, suicidal people prefer guns. Further, ownership does not mean access, unless you assume that gun owners all live alone. Thus, the entire basis for this claim is bogus at the outset.

The Philosophical Case For Guns

So what is the pro-gun case? Pro-gun groups make three arguments (excluding the Constitutional issue discussed below). The first is that guns are merely tools, like hammers, knives or a box of dynamite. Blaming guns for gun crime is as intellectually wrong as blaming money for theft or fertilizer for the Oklahoma City bombing. It is the human actor who is at fault, not the product. Further, arguments that guns are inherently unsafe are also irrational as all products are inherently unsafe to one degree or another. Intellectually, this argument is correct. Though, it must be noted that such an argument does not justify the continued existence of guns, if their dangers are outweighed by their benefits.

The second argument is that guns are “the great equalizer.” They protect the weak from the strong. Many years ago, in discussing the issue of women in combat, the Commandant of the Marine Corp told a very annoyed Patsy Schroeder (D-Mars), that “the average American male can kill the average American female with his bare hands in under a minute.” With a gun, those odds are evened. This argument goes hand in hand with the idea that individuals have a natural right to defend themselves.

The counter argument to this claim is that people with guns are more likely to be the victims of gun death. But such claims are false (and irrelevant). First, these claims typically include suicides. Secondly, they fail to account for the adverse selection problem, where people who live in dangerous locations are more likely to buy guns to protect themselves -- thus, it is not the gun causing the crime. And third, they never factor in the defensive benefits of guns.

The final argument is that guns protect the people from their government. When a government knows that it could meet armed opposition if it tries something truly evil, like rounding up certain citizens, governments are reluctant to engage in such activities. It is no coincidence that one of the first things totalitarian regimes do is to round up firearms. Indeed, this was the primary reason the Founders included the Second Amendment: their belief that a disarmed populous is helpless to resist a government and to prevent it from turning tyrannical.

The counter arguments to this typically point out the level of gun crime and/or demonize people who make this argument as militia nuts. But as seen above, the crime statistics are vastly overstated, the image the anti-gun groups try to promote of guns is false, and demonization is the lowest form of argument and should be dismissed out of hand.

The Constitution

Finally, we come to the question of the law. This is really the only theory that matters.

The Second Amendment to the Constitution guarantees the right to bear arms. For years, the left argued that this right extends only to state sponsored militia. Yet, only 20% of the population accepted that view. Seventy-three percent believe this Amendment guarantees the right of individuals to own guns.

More importantly, however, the Supreme Court now agrees with the people. In District of Columbia v. Heller, the Court held that the Second Amendment protects an individual’s right to possess a firearm for private use.

However, contrary to what many pro-gun groups claim, this right is not absolute. Indeed, the absolute position asserted by many pro-gun groups does not make sense when examined closely. For example, if no government regulation were allowed with respect to guns, then wardens could not keep prisoners from own guns, and the police could not legally disarm suspects.

And, in any event, the Supreme Court has rejected this argument in Heller:

“like most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . [This decision] should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

This is indeed typical of all rights. Even the most fundamental rights are subject to regulation. The question is the level of scrutiny that will be applied to the regulation. Some regulations are reviewed only on a “rational basis” test. Under this standard, if the government can come up with a rational reason for the regulation, the Court will uphold it. But more fundamental rights are typically examined under a “strict scrutiny” or “compelling interest” test, where the state must show that it has a compelling interest in the regulation and that it could not have achieved those results by imposing some lesser restriction (the regulation must be narrowly tailored).

At this point, the Supreme Court has not chosen the level of scrutiny that will apply to gun regulation. Instead, the Court found that the District of Columbia’s regulations in Heller were illegal under any of the possible levels of scrutiny. So this issue remains to be addressed in the future, although the court made it clear that such regulations could not interfere with the right of self-defense (the reason it rejected the District’s requirement for trigger locks). Thus, I suspect that the Court will eventually need to adopt the stricter standard.

Thoughts?

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