Tuesday, February 12, 2013

Softer Tyranny

Or: How even a 2nd Amendment Defender Can Fall For the Left's Lies

In piece on Law.com, Robert Levy, co-counsel to Dick Anthony Heller (of District of Columbia v Heller) posits that: "Reasonable persons should be able to fashion reasonable restrictions—a framework for gun control in the aftermath of Newtown—without violating core Second Amendment rights."

With due respect to the counselor, he has bought in to many of the left's lies.  Rather than take down each of the specific proposals (which would be pointless anyway, as he provides them in a "pros and cons" format), I'm going to point out some flaws in his premises.

1) "The (2nd Amendment) is not absolute."
As co-counsel to Dick Anthony Heller, I was a vigorous advocate for the right to possess firearms for self-defense. But I understand, as does every rational individual, that the right is not absolute. The Second Amendment does not guarantee a 12-year-old's right to possess a machine gun in front of the White House when the president is walking on the lawn.

Okay, first lets fight that straw-man.  No 12-year-old is (in current culture) going to carry a machine gun in front of the White House at any time- the President being present or otherwise.  Of course the absurd is absurd.  That said, why would a 12-year-old not have a "right to possess a machine gun" other than being a minor in the first place?  Let's put this another way- granted that a 12-year-old should being carrying a gun unsupervised anyway, does a 30-year-old have a "right to possess a machine gun?"

This leads directly into this line: "the right is not absolute."  If that were the case, it wouldn't be a "right."  It would be a "privilege."  The authors of the 2nd Amendment, however, called the ownership and usage (to Keep and Bear) of weapons a "Right."  Rights are, by their definition, absolute.  I have an absolute right to defend my Life.  I have an absolute right to determine my own destiny.  I have an absolute right to accumulate property.  And you will notice that liberty and property (or the more genteel "pursuit of happiness") do not receive the same treatment that the right to self defense does.  The right to self defense is declared sacrosanct: "Shall Not be Infringed."

2) Magazine Size Limits
Firearms experts note that murderers can easily load a second or third magazine in a matter of seconds. Accordingly, limiting magazine size to, say, 10 rounds will not have much practical effect. Perhaps so; but that would also mean individuals trying to defend themselves would not be seriously hampered by a 10-round limit. They too could reload very rapidly.

This is one of "pros and cons" arguments, but it bears special attention.  The point he misses (either willfully or coincidentally) is that those two situations are very different. 

A murderer (say, in an elementary school) is going to have lots of people running away and (importantly) darned few trying to attack him.  Seconds, in an actual fight, are a very long time.  An active shooter isn't in a fight, though.  So a mass shooter has lots of time to reload.  Unless people have suddenly become able to outrun bullets, however, their victims are not going to benefit overmuch from those seconds.

The Korean shop owner, or a woman in her own home, facing multiple assailants is in a distinctly different situation.  There, they are not the aggressor.  As such, even the seconds (~1 - 2) it takes (even longer if you're in California, and so can't have normal one-button magazine releases), can be all the time it takes from the last shot you fired until the first of those (remaining) "multiple assailants" can actually get to you.  So where the seconds are a luxury our mass shooter has, they are not available for someone engaged in fending off multiple assailants.

3) Legalize drugs.
The single most effective option—which is not being discussed at all—would result in a huge reduction of gun violence: Legalize drugs.

No, no it wouldn't.  First off, no one (rational) is considering some gang member or drug dealer who gets shot because of a drug deal gone bad a "victim" of gun violence.  Outlaws are outside the law; they'll find something to fight about anyway.  And it completely ignores (as in: does not even address) the problems inherent in legalizing drugs, especially in our current culture. 

Responsible gun owners already know that guns and alcohol do not mix.  People who are into drugs are not going to be "responsible gun owners" (for the most part), and may not grasp the wisdom inherent in not mixing guns and drugs.

It also assumes that the drug cartels will suddenly "go legit."  No.  Most narco-terrorists are using the "narco" part simply to fund their other activities.  Those activities will still require funding.  Even if drugs are no longer a viable avenue of funding, they'll find something else that is.  So unless you're going to legalize everything (and I mean everything) then you're not going to end drug-related gun violence by legalizing drugs.  You might change it into "Soccer game-fixing related violence," or any number of other things.  But the violence will continue.

4) "Mental Health."
I've already addressed this one, actually.  Who determines who is mentally incompetent to possess a firearm?  How long do those determinations last? 

Now, to be fair to Mr. Levy, he is "on our side" on this one.  My problem is not with him, and he sides with 2nd Amendment advocates, on balance, in his piece.  The majority of his opinion is well formed and well founded.  But if we do not address these points, and expose them as faulty premises and ideas, we will never completely win the argument.  Until we have won the argument, gun owners will be forced to defend their rights every few years, and potentially in a more hostile political/cultural environment than we have currently.


  1. Nice post-
    I had some of the same thoughts when I read this piece. In particular reference to the mental health side of things- one factor I never see discussed is the time factor in predicting violent behavior. If a person is rushing toward you, spewing spittle and swinging fists, you can reasonably predict he is going to commit violence. But try predicting accurately whether any one given individual will commit violence "at some point" in the next 24 hours, or next 2 weeks, or next 12 months. And are we really contemplating incarceration on the basis of what someone might do?