[clue-talk] Heller

[Jed S. Baer]

On Thu, 03 Jul 2008 11:22:19 -0400
Angelo Bertolli wrote:

> Jed S. Baer wrote:
> > On Wed, 02 Jul 2008 10:28:16 -0400
> > Angelo Bertolli wrote:
> >
> > There's a major philosophical problem with your argument. We have the
> > legal doctrine here of "innocent until proven guilty". The state has
> > no power (or shouldn't, but it's been creeping up on us for years) to
> > take action against someone without probable cause. That's why we
> > have the search warrant processes we do.
> 
> Yes, there is a conflict between preventing crime and assuming 
> innocence.  It's in every aspect of our law.  If they can let these
> guys off so easily, then you also have to get rid of "intent
> distribute" assumption just because someone has more than a bag of
> weed.  The truth of our society is that there are different degrees of
> "innocent until proven guilty" already in place and it's inconsistent.
> I actually don't smoke pot, but it still bothers me that you can lock
> someone up for having some weed because you can assume they were going
> to sell it even when you didn't catch them selling it, while they find
> a trunk full of assault weapons and can't do anything about it.

I'm no fan of the war on (some) drugs, but the Right to Keep and Bear
Arms is an enumerated Right. As explained in the Heller ruling, and
numerous treatises on the subject, self defense is a fundamental human
right, and predated the existence of the U.S. Constitution. The 2nd
Amendment recognizes it, and prohibits the government from infringing
upon it. The way the 2nd Amendment recognizes it is by protecting one
particularly effective means of self defense. I've already mentioned how
having this so-called "trunkful" of arms isn't notable. Absent other
reasonable cause, the state has no justification for doing anything.

BTW, you do know that the term "assault weapon" is a term made up by some
legislators, and has no practical relation to the functional aspects of
any firearms? Minor aside, but that term has, since the passage of the
"assault weapons" ban in 1994, been hyped ad nauseaum by the media to
create an aura of fear in the populace. To illustrate how meaningless
this is, note that in some jurisdictions where police have been issued
AR-15 type rifles, they're referred to as "patrol rifles". Same gun, but
no longer scary.

Whatever degree of differences exist between presumptions of innocence in
various contexts, that's a problem with our legal system, not with guns.

> No, I don't blame inanimate objects for decisions made by government.  
> But that's what we're talking about really anyway.

Well, then why do you still argue for them as creating suspicious
circumstances that the government should do something about?

> I thought about that, but the way the story was presented and the fact 
> that there are armor-piercing bullets made me think they must have
> known these guys were up to no good.  There has to be a way to come up
> with some criteria to prevent people from performing these kinds of
> crimes when they're caught beforehand, while still allowing reasonable
> people to maintain a gun in their home, don't you think?

Now you're arguing for some way to impose prior restraint? For evidence
of how the government would administer such a program, take a look at
the no-fly lists. What criteria would you establish? There are already
prohibitions on gun ownership for people who have been adjudicated
mentally incompetent. How do you propose to predict who will be "up to no
good". Remember that I've already mentioned that, absent the improvised
explosives, nothing mentioned in the Wikipedia article you referenced is
particularly notable. Hell, years ago, it wasn't considered strange at
all for people to purchase dynamite at the hardware store. For example,
farmers would use dynamite to blow up tree stumps. 

The simple truth is that there are a lot of things that some number of
people will find "suspicious". That's why we already have safeguards in
place, such as the procedures for obtaining warrants. It's antithetical
to the idea of Liberty to sanction a person's behavior without probable
cause.

> > The "wild west" argument has been debunked time and again. It comes
> > from the movies and TV, which like to portray the "wild west" with
> > lots of shootouts because that's exciting.
> 
> No, it's not really about the shootouts.  Sorry if I inadvertently gave 
> people that impression.  It's more about the frontier attitude, fending 
> for yourself, and not having the government around.

And that's exactly what we need more of. I'll take as much "not having
the government around" as I can get. This "frontier attitude" that you
seem to be deriding was responsible for an enormous amount of progress in
this country. I'll take self-sufficiency and ambition over government
control any day of the week.

> But if you find a bunch of folks carrying around steel core bullets, 
> don't you think at least that could be restricted?  I'm only advocating 
> reasonable restrictions, and I think at least some gun rights activists 
> go too far.  But I do have to say that they and the NRA are pretty 
> smart:  don't give an inch and you won't let anyone take a mile.

I see no reason to restrict steel-core bullets. Why do you think there's
something about them that needs restriction? The prevalence of ammunition
using steel-core .30 call bullets has pretty much nothing to do with any
supposed armor-piercing capabilities. What happened was that for many
years, surplus 7.62x39 cartridges (.30 inches is 7.62mm) was dirt cheap,
so shooters bought a lot of it for plinking and target shooting. As I've
already mentioned, this sort of ammunition isn't particularly notable for
effectiveness against typical body armor worn by cops, compared to other
rifle cartridges.

As far as the NRA goes, they've given plenty of inches. The difference in
how people perceive the NRA depends, I suppose, on the point of view of
the observer. From the anti-gun angle, they're portrayed as this 800 lb.
gorilla standing in the way. From the Liberty angle, they appear to be
effective in some cases, but willing to compromise. They actually tried
to keep the Heller case out of the courts. Yes, they're large,
well-funded, and well-connected. But they've been pretty soft in some
areas.

> Is there any limit that you think is "appropriate" for bearing
> weapons? Your philosophy seems to indicate that the government should
> make no judgment whatsoever in deciding how much "armament" a person
> can have. I could pretty much just replace "armor-piercing bullets"
> with "grenades" in your argument (here and in general) and it would
> remain consistent.  I won't be able to really argue with your
> philosophy if this is the case, because it's hard to argue with someone
> who has a consistent philosophy but a difference of opinion.  But,
> there is a reality to whether or not the average citizen needs steel
> core bullets or not.

If you read the various Federalist papers, and other writings by
Founding-era people, it's quite clear that the ultimate intent of an
armed citizenry is the ability to throw off a tyrannical government.
Obviously, that's what had just happened in the War of Independence. The
Heller ruling even mentions this in a few places. Granted, the example of
Afghanistan vs. the Soviet attempt at occupation demonstrates that a
determined populace can resist a tyrannical opressor with even limited
means, I prefer that the government be sufficiently cowed by the degree
of civilian armament that it's kept in check.

The strongest reason for the people to retain the right to bear arms is,
as a last resort, to protect themselves against tyranny in government.
 --Thomas Jefferson

Does the government fear us? Or do we fear the government?  When the
people fear the government, tyranny has found victory. The federal
government is our servant, not our master!
 -- Thomas Jefferson

Oponents of the Right to Keep and Bear arms are always bringing up the
"nuclear option". Even in the guise of something else, such as tanks,
howitzers, the .50 BMG, or grenades, the intent is the same. It's a scare
tactic. The scare tactic preys upon the tendency of the brain to shut
down the logical thought process and go into a reactive mode. This has
been the subject of research. Instead, we should examine the
philosophical basis, and the facts.

For the philosophical basis, I'll just point to Francis W. Porretto, who
answers the question quite nicely.

http://www.eternityroad.info/index.php/weblog/single/intentions_purposes_and_rights/

For my part, within the bounds of his explanation, I think that the
purpose of the armed citizen as a bulwark against tyranny is best served
when the citizen is armed to at least a level of parity with what is
standard infantry issue in the armed forces.

> A friend of mine told me recently that guns should be allowed in the 
> country and banned in the city.  I don't know if that's realistic.  We 
> don't exactly control the borders to cities.  Sometimes laws have to be 
> made with a realization of what's enforceable.

It's entirely unrealistic. Take the example of D.C., which has several
times in the past been the "murder capital of the country" when the
number of murders is express as a per-capita figure. Are citizens more in
need of the means of self-defense in high- or low-crime areas? When you
look at crime rates, crime tends to be higher in large cities. Chicago
comes to mind as well, with some of the strictest gun laws in the nation.

This country vs. city argument stems from a misunderstanding of the 2nd
Amendment. We see this misunderstanding when politicians come up with the
idiotic statements of saying they support people's right to hunt. The
Right to Keep and Bear Arms has nothing to do with hunting. Had someone
suggested to the Congress at the time of the debate about the Bill of
Rights that the people's ability to hunt needed protection, I suspect it
would have been dismissed with derision, because nobody at that time
would have conceived that the government would ever interfere with it. In
fact, there was objection to the need for the entire Bill of Rights,
because the concept at the time was of a government restrained to the
specific functions enumerated in the Constitution. What more protection
was needed? As we have learned since, much more than we got.

I think that Scalia answered your question about enforceability quite
well. p. 62-63 of the Heller ruling:
[quote]
The very enumeration of the right takes out of the hands of government
-- even the Third Branch of Government -- the power to decide on a
case-by-case basis whether the right is really worth insisting upon. A
constitutional guarantee subject to future judges’ assessments of its
usefulness is no constitutional guarantee at all. Constitutional rights
are enshrined with the scope they were understood to have when the people
adopted them, whether or not future legislatures or (yes) even future
judges think that scope too broad.
[end quote]

The question of enforceability seems to me to fall into the cas-by-case
category.

> Personally, I do think the government should play a role in judging
> what level of armament a person can own, and under what conditions.
> The purpose of government is to provide safety and order.  This might
> be an unpopular statement that will make you completely disregard
> everything I say, but government by it's nature is at least some level
> of Marxism.

We can debate the purpose of government until the cows come home.
Whatever the scope of that purpose, in the U.S. there are restrictions,
codified in the Consitution. The government may not overstep those
restrictions. The Heller ruling, correctly, did not hold that some
purpose of the state could override the fundamental protections of the
2nd Amendment. In fact, Scalia rejected such arguments (not strongly
enough, IMHO, but he's got the robe and I don't) -- presumably, the 4
Justices joining in the opinion agree.

jed