Showing posts sorted by relevance for query "in common use". Sort by date Show all posts
Showing posts sorted by relevance for query "in common use". Sort by date Show all posts

Wednesday, November 18, 2020

A Common Misconception

 As you’ll see in a moment, the latest figures demonstrate that all of the guns and magazines that Biden is hoping to ban are clearly in common use by millions of Americans for a variety of lawful purposes, and squarely fall under the protections offered by the Second Amendment. [More]

And as few "gunpundits" seem to see, no matter how long you give them, "in common use" is not about popularity. It is about "every terrible implement of the soldier," that is, "ordinary military equipment" capable of enabling citizens to prevail in "common defense" battles.  Were it otherwise, withholding new technology from We the People would be all tyrants would need to keep it forever out of "common use."

Kind of like those offensively intolerable “RESTRICTED LAW ENFORCEMENT/GOVERNMENT USE ONLY'' mandates have been designed to do...

I'm wondering when anyone of note and influence will start arguing core purpose...

Thursday, August 14, 2008

Fincher Conviction Affirmed

We affirm the conviction and remand the issue of Fincher’s eligibility for court appointed counsel to the district court for further inquiry...

Accordingly, under Heller, Fincher’s possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use.
So much for the federal courts. So much for "every other terrible implement of the soldier, are the birthright of an American." We all see the "common use" citizen-instead-of-soldier bait and switch fraud here, right?

So much for "shall not be infringed."

Circular logic: We have usurped authority to prevent you from having arms that could threaten our grip on power, so they're not in common use.

Tell me the Founders intended for corrupt judicial decisions to be the supreme law of the land--yet that's what we have, when rulings affirm federal courtrooms are Constitution-free zones. Who are We the People to argue it in court, or to judge the law along with the facts?

There is no "legal" recourse--at least none that will be recognized by those rigging the game. Some will point out that contention is wrong, and argue something ultimately depending on majority rule--as if the hive has a collective claim to your rights.

No, the fraud has been nicely played. But then we knew those in power don't give it up if they don't have to.

More at The Volokh Conspiracy. Commentator Brett Bellmore has it exactly right:
No new innovation can start out "commonly owned", hence the government can ban every new firearm.
It's what I feared when I wrote "Things to Come" back in 2002 for Guns and Ammo (not online and it's copyrighted, so I can't post the entire essay here):
It's been said that a battle isn't won until a man with a rifle occupies the ground. We must keep in mind that someone probably once said the same thing about spears.
[Via Peter G]

Thursday, June 26, 2008

HELLER AFFIRMED



UPDATE: OPINION HERE

UPDATE: Door left open for infringements (you knew they would):
f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
UPDATE: Chicago next?
3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment.
UPDATE: Licensing and registration not deemed infringements (technically, "not addressed"):
Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.

UPDATE: Personal comments:

This is pretty much the outcome most of us expected--an individual rights ruling that leaves the door open for gun control--although at what level remains to be seen. I'm no lawyer and will be interested in seeing what people in the know have to say, but my untutored read on this says the scrutiny question has been dodged.

The other thing that immediately sticks out for me is this business of not addressing licensing and registration--theoretically, that leaves such laws open to future challenge--but here's the thing--there's nothing that says a future court needs to hear such a challenge, and I would expect them to not touch this with a 10-foot pole.

There's one other thing I've been meaning to say, but held off pending the decision: If this had been left up to our "leaders" at the NRA, specifically Wayne LaPierre and Chris Cox, we would not have this ruling.

This case was not initiatedby NRA, and in fact the Association and some well-know names in 2A legal circles attempted to derail it. NRA did not join until after it was clear things were going forward.

We would have been facing the strong potential for an Obama presidency and democrat congress with no ruling, and the almost certain liklihood that new Supreme Court appointments would significantly alter the composition of the court's narrow 5-4 pro-individual rights contingent.

Fairfax apologists can go ahead and accuse me of "attacking" NRA, but it's the truth and they know it. And it's a hell of a thing for any serious gun rights activist to come to grips with.

UPDATE:
Brady Campaign
Our fight to enact sensible gun laws will be undiminished by the Supreme Court’s decision in the Heller case.
Because if we could admit we were wrong, we wouldn't be fanatics.

Violence Policy Center:
...Supreme Court Justice Antonin Scalia has done his part to make sure that, at least in the U.S., the future for his gun industry friends and their lobbying pals is a little bit brighter.
Hell hath no fury...

UPDATE: Guess who agrees with me about Chicago?

UPDATE: Mr. Hardy skims some key points--as always, good insights.

UPDATE: Fenty Foolishness [This update link via Zachary G] :
*First, all firearms must be registered with the Metropolitan Police Department’s Firearms Registration Section before they may be lawfully possessed.

*Second, automatic and semiautomatic handguns generally remain illegal and may not be registered.

*Third, the Supreme Court’s ruling is limited to handguns in the home and does not entitle anyone to carry firearms outside his or her own home...
We knew that, but it's important to hear it from him just so we can see that he's intent on infringing as much as possible. I'd also look at the DC administration to drag their feet to the brink of stonewalling. SCOTUS will be out until October and I'd look at Fenty & Co. to take full advantage of that.

But here's the part that demonstrates what absurd theater this is more than anything I could say:
In addition, although the Court struck the safe storage provision on the ground that it was too broadly written, firearms at home should be kept either unloaded and disassembled or else locked except for use in self-defense in emergencies.
I call on Mayor Fenty to physically demonstrate what that would look like. Any bets on whether any of the "Authorized Journalists" with access to him will press him in a public forum on just how the hell someone would be able to protect themself that way?

UPDATE: This is troubling, pointed out by Uncivil Defense from the footnote on pg. 48 (see "Opinion" link, above):
Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

UPDATE: Yep--expect this to be one of the anti's major new rallying points:
City officials expressed confidence the city would prevail in any court challenge, asserting, among other things, that the 2nd Amendment as part of the Bill of Rights restricts the federal government and does not apply to state and local governments.
Before, it was there's no individual right. Now it's there is, but it doesn't apply to what we can do.
If that's upheld in a liberal appeals venue, SCOTUS would need to agree to hear another 2A case to get it resolved.

Friday, July 06, 2018

Well Regulated

Received via "Comments":
Does the word "regulated" in the 2A mean as used today, to control or direct, or does it mean well equipped? I have been told that at the time of the writing of the Bill of Rights regulated meant well equipped.
Both. Others say precision-adjusted like a clock.

The Militia Act of 1792 specified required gear including:
...a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of powder... 
The Militia clauses in the Constitution calls "for organizing, arming, and disciplining ... and for governing."   Hamilton explains his understanding in Federalist 29.

My key takeaway:
“To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss...Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped…”
In other words, we are entitled to what even modern courts have recognized as "ordinary military equipment" that is "in common use at the time" and "that its use could contribute to the common defense."

Once they show up for militia duty, citizens are subject to discipline. But the equipment they keep and bear in everyday life is not what is "regulated" and, significantly, there is no delegated power to allow for an override of "shall not be infringed."

(I didn't post this as a reply in "Comments" because I require those to stay on the topic being offered for discussion. That and if it were buried beneath a post, it wouldn't get enough eyeballs to be worth the work. I'm happy to try to answer questions, so please use the contact form in the left sidebar.)

Friday, August 15, 2014

Connecticut response to gun law challenge reveals plan to gut Second Amendment

The key point being ducked is that the phrase “in common use at the time” was in reference to the militia component of the Second Amendment, and referred to the expectation that citizen soldiers would muster bearing arms suitable to confront and prevail against professional military forces. Nothing with the passage of time has changed that, except through the deliberate indifference of the government in discharging its duties ensuring that which was once commonly understood as “being necessary to the security of a free State.” [More]
If they succeed, not only will they "legally" be able to deny 19th Century technology to We the People, but forget any future developments, which won't be "in common use at the time" by any but enforcers for the overlords.

UPDATE: See similar case in Maryland.

Friday, September 08, 2006

Can Gun Control Reduce Violence?

[Yesterday, I posted a quote from Preston K. Covey, Ph.D. Professor Covey has graciously authorized WarOnGuns to post his entire presentation, to use his words, "in the spirit of 'pass the ammunition'."

This currently appears nowhere else on the Internet, and I am grateful to Professor Covey for allowing me to present it here. How rarely do we see an academic speaking plainly to legislators about the folly of "gun control"? This is good stuff--much of which even an ornery absolutist like me can agree with--and deserves to be disseminated far and wide. I hope you will agree and help to do so by sharing the url to this post. This is one smart man, and his perspectives make us think.--DC]


Can Gun Control Reduce Violence?

What Do We Know? What Do We Need to Know?
Commonsense Logic & Ethics for Evaluating Policy Options

Cases in Point: Restricted Purchases & Permissive Carry Laws

presented to

The Pennsylvania Senate Judiciary Committee Hearing on Urban Violence

August 10, 2006
Pittsburgh, PA

by
Preston K. Covey, Ph.D.
Director, Ethics, History, & Public Policy Program
Department of Philosophy
Carnegie Mellon University

Preston received his B.A. (Psychology) and Ph.D. (dual, in Philosophy and in the Humanities Graduate Program)from Stanford University, and is a tenured Associate Professor of Philosophy, Founding Director of the Center for the Advancement of Applied Ethics, and Director of the inter-departmental Ethics, History, & Public Policy Program at Carnegie Mellon University, where he teaches courses in ethics, law, public policy, and conflict resolution as well as issues of criminal justice and violence in American society.

Preston served for a decade as a fully sworn Special Deputy Sheriff detailed to the Firearms Training Staff of the Sheriff’s Reserve of Allegheny County PA, on the Board of Directors of the National Institute of [Law Enforcement] Ethics, and currently serves as a deadly-force and officer-survival training consultant for Team One Network, a national consortium of law enforcement firearms and use-of-force trainers (www.teamonenetwork.com).

He is a member of the American Society of Criminology, the Academy of Criminal Justice Sciences, the Institute of Criminal Justice Ethics, the Society for Risk Analysis, the Risk Assessment & Policy Association, the Association for Conflict Resolution, the International Wound Ballistics Association, and the Institute for Research on Small Arms in International Security.

Preston served on the Ethics Committee of the American Society of Law Enforcement Trainers (ASLET) from 1994-2000 and has served on the following committees of the International Association of Law Enforcement Firearms Instructors (IALEFI): Firearms Training Standards Committee, Instructor Criteria Committee, Safety Committee, and Ethics Committee. He has been a member of ASLET and IALEFI since 1990 and 1991, respectively.

In 1994, Preston was elected by the IALEFI Board of Directors to Life Member (a service award, the fourth in the history of IALEFI) for outstanding service to law enforcement firearms and lethal force training.

He is Editor and co-principal author of IALEFI's Standards and Practices Reference Guide for Law Enforcement Firearms Instructors and (with 600 hours of certified training himself) served for over a decade as an instructor in lethal threat management and the judicious use of deadly force by police officers and civilians.

Recent publications and research projects include a book entitled Gun Control: For & Against (invited by Rowman & Littlefield), the articles on Gun Control in The Encyclopedia of Applied Ethics (Academic Press, 1997) and The Encyclopedia of Ethical Issues in Politics & Media (Academic Press, 2000), and the articles on Self-Defense--Legal Issues, Self-Defense—Reasons for Gun Use, and The ‘Sporting Purposes’ Test (an analysis and principled critique of the 1994 federal ‘assault weapon’ ban) in Guns in American Society: An Encyclopedia of History, Politics, Culture, and the Law, Gregg Lee Carter, Editor (ABC-CLIO, 2002).

Introduction

Mr. Chairman and members of the committee, I thank you for the opportunity to address this panel.

I hope to provide perspective for your important public service on the evaluation of policy options addressing urban violence.

Guns figure prominently in urban violence, so gun control is high profile.

But there are ‘101’ types of interesting gun control. (I provide a typology --and the controversies attending them-- in my article on Gun Control in The Encyclopedia of Ethical Issues in Politics & the Media Academic Press, 2000.)

Briefly today, I focus on just two types: RESTRICTIVE and PERMISSIVE

and relevant examples of each type: RESTRICTIVE PURCHASE LAWS
and PERMISSIVE CARRY LAWS


To set the stage: Three Keynotes

It ain’t what we don’t know that’s the problem. It’s what we know that ain’t so.
-- a paraphrase of Josh Billings/Mark Twain/Will Rogers/Artemus Ward [origin disputed]

It’s easy to lie with statistics, but easier to lie without them.
-- Frederick Mosteller
(Founder of Harvard’s Statistics Department & premier pioneer of applied stats in public affairs)

The great enemy of the truth is very often not the lie -- deliberate, contrived, and dishonest -- but the myth -- persistent, persuasive, and unrealistic.
-- President John F. Kennedy

What we don’t know is indeed a big problem.

But what we think we know that ain’t so corrupts public inquiry into what more we need to know.

My students complain that statistics can be used to “prove” anything you want.

They learn to be more discerning -- to discern that among contrary research findings some are damn well better than others.

First, fair warning about where I’m coming from:

Commonsense Logic & Ethics for Evaluating Policy Options

Commonsense is a commodity that’s commonly available, but not often enough availed.

Guns in our society are commonly available.

Violence --criminal violence-- is too often availed.

It seems commonsense to think that the incidence of violence correlates with the availability of guns and would be reduced by restricting gun availability.

At your committee’s Philadelphia hearing, Police Commissioner Johnson proclaimed [quote]:

“I think the availability of guns is the real problem.”

Commonsense --more strenuously deployed-- shows us that it’s not that simple.

For starters, it depends on what we mean by “availability.” This is not some silly semantic gamesmanship like Clinton’s “Well, it depends on how you define ‘sex’.”

Pennsylvania has more guns & more carry licensees per capita than any other state. Yet – if Philadelphia is subtracted from the equation— our state’s homicide rate is as low as Western Europe’s and our violent crime rate is lower than England’s.

Quantity of guns and quantity of violence are NOT simply or uniformly correlated.
----------
My Value, Fact, & Policy seminar at Carnegie Mellon frames the commonsense logic of how facts and values are inter-related in the evaluation of policy and the commonsense ethics of debating policy options.

Sub-titled Violence in America, the seminar addresses inter-related issues of crime control, drug control, & gun control. Our basic interest is in questions like:

“Is this a good policy?” “What do we need to know to decide or judge?”
and –equally important-- “How should we vote when we don’t know?”

Logic tells us that we can’t answer the question “Is this a good policy?” without answering the logically prior question “GOOD FOR WHAT PURPOSE?”

Ethics tells us that in honest controversy our duty is to hark to the best evidence available --the best research delivered by the best methods and the best authorities.

I’ll illustrate these imperatives with policies of interest to the committee:

RESTRICTIVE GUN PURCHASE LAWS

The bad news is that there’s enough equivocal research out there to confuse the unwary, such that we often can’t know “beyond a reasonable doubt” the very best options --or best combination of options-- for reducing violence, even gun violence.

The good news is that there’s enough unequivocal evidence to keep debate honest and to distinguish good firearms policy from bad in a lot of cases -- by a “preponderance of the evidence” if not, indeed, “beyond a reasonable doubt.”

Let’s take a couple examples of restrictive purchase laws for illustration:
----------
The 1994 Ban on So-Called ‘Assault Weapons’ & High-Capacity Magazines

Was this a good policy? That depends on the purpose for which it’s evaluated.

Logic says that the purpose for which anything is evaluated dictates the criteria by which it must be evaluated --and the kind of evidence needed to evaluate whether it achieves a given goal.

The ban was good for inciting pre-ban purchase & hording of banned items
--an unintended pre-ban effect

It was good for skyrocketing the price to lawful buyers of pre-ban items
--a collateral cost (intended or not) to law-biding citizens

It was good for making advocates & believers feel good when it passed
--a partisan benefit irrelevant to the common good

It might have been good for softening-up middle-roaders for further bans
--an ulterior purpose of some gun-ban advocates:

As Charles Krauthammer frankly wrote in The Washington Post (4/5/06):
"Passing a law like the assault weapon ban is a symbolic - purely symbolic - move . . . Its only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation. . . The real steps, like the banning of handguns, will never occur unless this one is taken first."
But was it good for its vaunted pretext, for the purpose of reducing violence

--in particular, reducing the quantity of harm from gun violence?

The good news on this critical question is that we have state-of-the-art mandated-by-law government-sponsored research on the ban’s effects; for example:

The National Research Council 2005 report Firearms & Violence: A Critical Survey, available from the National Academies Press, Chapter 4 Interventions Aimed at Illegal Firearm Acquisition, pp.96-97, citing C.S. Kopper & J. Roth. 2001: The impact of the 1994 federal assault weapon ban on gun
violence outcomes .... Journal of Quantitative Criminology Volume 17, Issue 1 and
The impact of the 1994 federal assault weapon ban on gun markets .... Journal ofQuantitative Criminology Volume 18, Issue 3.

The bad news is that the answer --on the best available evidence-- is NO, the ‘assault weapon’ ban had no discernible effect respecting its ultimate goal: reducing criminal violence --even criminal gun violence.

More specifically, it had no effect on the crucial OUTCOMES OF INTEREST
--the very rationale for banning so-called ‘assault weapons’—to wit:

THE QUANTITY OF HARM from criminal gun violence --in particular, THE RATE OF MULTIPLE-WOUND & MULTIPLE-VICTIM SHOOTINGS.

There are many interesting tactical reasons for this, but three major factors are:

(1) that the ban’s long-gun targets figured in only a small fraction of criminal violence in the first place,
(2) SUBSTITUTION of non-banned repeating firearms which provide comparably lethal firepower for all criminal purposes, and
(3) residual availability because of the vast quantity of banned items already in lawful and illicit circulation.

The research cited also doubts that the ban had any effect in its proximate goal of reducing the availability of the banned items to criminals. But the ban’s effect on criminal markets is academic and beside the point, insofar as the ban had no discernible manifest effect on the quantity of harm from criminal violence.

On the other hand, the ban imposed blanket restrictions and appreciable costs on law-biding citizens for ten years.

Basic ethics says that the benefits of any policy for the common good must outweigh –or counter-balance-- the costs or harms to innocent law-biding folk.

Restrictions on the liberty of the law-abiding require counter-balancing benefit.

But the ‘assault weapon’ ban had NO demonstrable benefits to the commonweal. Except, of course, for the lessons learned from this expensive ten-year experiment.

Sure, we can learn by mistakes. But at what cost? And at whose expense?

Some think that the lack of evidence of benefit just shows that the gun ban/the experiment wasn’t restrictive enough, comprehensive enough, or allowed to continue long enough. That’s mere speculation –of the kind that advocated the ban.

OK. But how far are we justified in experimenting --with no evidence, merely on speculation, and at a stiff cost to the vast law-biding populace-- in order to try to control a fractional criminal element? (Counter-terrorism is a separate issue.)

Of course, the burden of justification is less when the cost to the law-biding is less.

Putting aside blunt-instruments and blanket prohibitions on legitimate interests like gun bans, what about more modest, less invasive purchase restrictions that try surgically to target the criminal cancer in the body politic? For example:

Background Checks For the Purchase Of Handguns

Background screening is a prime example of a low-burden purchase restriction. (Today --with instant background checks-- waiting periods are a separate issue.)

Is this a good policy? Good for what?

The Brady law’s proximate goals and effects are to prevent people with criminal records from acquiring handguns from lawful gun shops, to cut off one source for criminal gun acquisition, and –presumably-- thereby raise the cost of guns to criminals.

A policy that raises the cost of guns to criminals is arguably good enough
-- provided that the cost to law-biding buyers is negligible (e.g., a few minutes wait and low risk of a false-positive in the NCIS with resultant false denial or arrest).

The ultimate goal of supply-side restrictions on the law-biding surely should be demonstrably to reduce both criminal gun availability and criminal gun violence. But these outcomes –for point-of-sale background screening alone-- are extremely difficult –if arguably unnecessary-- to demonstrate . . .

. . . because many other illicit sources make guns available to criminals: e.g., theft, robbery, fraudulent retail purchases, finding corrupt licensed gun dealers willing to ignore the law, and ‘straw buyers’ (who buy guns legally to sell illegally to others).

This brings us to a much debated purchase restriction:

The One-Gun-a-Month Limit

Is this a good policy?

When we debate this question (for a city, county, or state):

Logic requires us to identify the policy’s express and tacit, perhaps various PURPOSES for which it is to be evaluated –especially its proximate and ultimate goals respecting the common good (as well as its ulterior partisan motives);
and
Ethics requires us to seek the best available evidence of its actual OUTCOMES respecting its benefits for the common good --as well as its collateral costs or harms to legitimate interests of the vast law-biding, tax-paying public.

There are several candidate goals for one-gun-a-month purchase limits:

A. Political kudos for publicly addressing the problem of gun violence, which is certainly compatible with --although it does not ensure:

B. Cut off one source of criminal gun acquisition (multi-gun proxy buyers), which is certainly compatible with --although it does not ensure:

C. Reduce the embarrassing number of crime guns retrieved in other cities or states that are traced to one’s home city or state as the point of first purchase, which is certainly compatible with --although it does not ensure:

D. Reduce overall gun availability to criminals, which is difficult to demonstrate given all the other criminal sources and criminals’ ingenuity in creating supply where there’s demand

Then there are the ultimate goals of greatest public (as versus political) interest:

E. Reduce criminal gun violence, which might result from D, but neither D nor E follow from achieving the other goals (A, B, or C)

F. Reduce overall criminal violence, certainly the Gold Standard of outcomes:

If reducing criminal gun violence does not reduce overall criminal violence, we need to rethink “What, after all, is the good of the purchase restriction?”

Another crucial question: Which of these several goals –if achieved according to the best available evidence— are necessary or sufficient to justify the policy?

Surely, at the least, reducing criminal GUN violence is a necessary outcome for a GUN control policy.

Some states have implemented one-gun-a-month limits. So there’s available research on this policy’s performance record.

Take Virginia, an instructive example on what we need to know and consider in debating such a policy for any specific jurisdiction –city, county, or the whole state.

The evaluation of outcomes from Virginia’s 1993 one-gun-a-month limit is nicely summarized and referenced in

The National Research Council report Firearms & Violence: A Critical Survey, Chapter 4, Interventions Aimed at Illegal Firearm Acquisition, pp.93-94.

(See also Chapter 9, Criminal Justice Interventions to Reduce Firearm-Related Violence, on collateral policies or alternatives to restricting legal purchases: tough policing of gun dealers as well as the proxy buyers who sell to criminals – more vigorously exploiting under-enforced existing laws.

This kind of intervention strategy has been called Pulling Levers: coordinating federal, state and local resources to pull every available legal lever to target suspicious dealers and multi-gun buyers for investigation, and –if warranted-- vigorously prosecute them, fully enforcing existing law.)

The NRC’s assessment makes a crucial point [quote]:

“. . . in order for this intervention to workin the sense of reducing violence – not only must the intervention make it more difficult for criminals to get new guns but also the substitution possibilities must be limited.

“That is, comparably harmful guns cannot be available from comparably accessible sources.” [All emphases in quoted material are mine.]

One such source is multi-gun proxy buyers in neighboring jurisdictions that do not have a one-gun-a-month limit.

This is the problem of ‘leakage’ from less restrictive states into more restrictive states, and a reason that advocates urge national legislation, to ensure uniform suppression of a crime-gun source like proxy buyers.

Before the 1993 passage of its one-gun-a-month law, Virginia had been one of the leading source states for crime guns recovered in northeastern cities.

The NCR cites research that, using BATF trace data, showed the following:

In the first 18 months after the law was implemented, the quantity of guns recovered in the northeast that were traced to Virginia was greatly reduced, from 35 percent before the law was implemented to 16 percent.

The NCR further notes [quote]:

“This study indicates a change in the origin of traced crime guns following the change in the law.

“. . . the law change had an effect.

“The Virginia legislature may ... have achieved its goal of reducing the role of the state in the interstate illegal gun trade.

However, [the ultimate purpose of the law—reduction in violence] may have been undermined by a substitution of guns first purchased in Virginia to guns first purchased in other states.

An important question not addressed by this study is whether the law change affects the ultimate outcome of interest

--the quantity of criminal harm committed with guns—

or even the intermediate questions of the law’s effects on the number of guns purchased or owned.”

The NRC highlights the crucial question of what we need to know (what research needs to be done) in order to conclude whether a one-gun-a-month limit is a good policy for purposes of

reducing the quantity of harm from overall criminal violence
or at least
reducing the quantity of harm from criminal gun violence

It’s doubtful that a single state will or can pay the freight for the requisite research to justify a one-gun-a-month limit by demonstrably ensuring these outcomes.

But, there are more modest goals, such as

reducing a state or city’s contribution to illegal gun trafficking.
The Inquirer reported that in written testimony to the Philadelphia hearing, Camden, New Jersey’s mayor cited ATF trace data showing that
the percentage of guns recovered in Camden that originated in Pennsylvania increased from 23 percent in 2000 to 40 percent in 2004,

while the percentage of recovered guns originating in New Jersey decreased from 23 percent to 16 percent.
The mayor apparently implied that New Jersey’s stricter law was responsible.

But new stricter law in Pennsylvania --or fewer guns illegally trafficked from Pennsylvania-- will not ensure that criminals in New Jersey acquire fewer guns.

The Inquirer also reported testimony at the Philadelphia hearing to the effect that
gun dealers must keep a log and report multi-gun purchases to the ATF, so repeat multi-gun buyers suspected of proxy buying are identifiable
and
gun dealers to whom an inordinate quantity of crime guns are traced are readily identifiable for investigation and prosecution under existing law;
so
we don’t need a new law restricting liberty and legitimate commerce to crack down on the real culprits: scofflaw gun dealers & proxy buyers.
Is a one-gun-a-month limit justifiable for the singular purpose of reducing the quantity of Pennsylvania or Philadelphia guns illegally circulating interstate?

Regardless of whether a decrease in this illegal trafficking would result in
a decrease in the quantity of harm from criminal gun violence?

Ethics says that when we debate the goodness of a restriction on law-biding citizens for any purpose, especially for any purpose short of demonstrable violence reduction

--indeed, whenever we debate the justifiability of restrictions on the basis of
their vaunted but merely speculative benefits--

we need to take fair assiduous account of the costs to the innocent and law-biding.

The onus of justification, the burden of proof and persuasion is on those who advocate limiting the liberty and legitimate commerce of law-biding citizens

– at least to the standard of “a preponderance of the evidence.”

I do not mean summarily to preclude the justifiability of one-gun-a-month limits.

This would be as impudent and irresponsible as dismissing the legitimate interests of law-biding folk who want to be able –sometime-- to purchase more than one gun a month or of those folks whose livelihood relies on lawful gun sales.

My intention is to underscore what we need to know, what evidence needs to be adduced, and what interests need to be weighed and balanced in that justification.

Finally, a couple remarks and research references on a controversial subject likely thrown to the committee every now and then when folks get all in a sweat about all bloody hell breaking loose if other folks are allowed to carry guns in public places (or when criminal homicide rates spazz-upward in our murder capitals, like Philly).

We’ve looked at the impact of restrictive gun controls on violence. Let’s consider:

PERMISSIVE CONCEALED CARRY LAWS

Are these laws good policy? We put this policy to the same commonsense tests:

Good for what purpose? What’s the evidence?

Alternative policies on concealed carry of a loaded gun on one’s person are:

A. PROHIBIT it, with no provision for licensing. (Four states do so.)

B. ALLOW adults with no criminal record (resident or non-resident) to carry
guns as a state constitutional right, no license required. (Two states do so.)

C. LICENSE adults to carry, but only with a state issued or recognized permit.

1. DISCRETIONARY / ‘MAY ISSUE’ LICENSING (as old as New York’s notoriously arbitrary Sullivan law of 1911 --eight states, I believe, still abide this regime, but movements to defect to mandatory licensing are afoot):

The licensing authority (county or local --policy can vary radically across intra-state jurisdictions) may issue or deny permits at their discretion.

Besides being subject to summary denial, applicants must give (and often document) ‘good reason’ or evidence of ‘special need’ (like routinely carrying a lot of money or valuables or being a high-profile VIP). Wanting effective means of self-protection against criminal threat by itself does not qualify, unless the issuing authority chooses to so allow it.

Discretionary licensing is well documented to be arbitrary, prone to inequity,
political cronyism and rank bias. Why so many states have changed to:

2. MANDATORY / ‘SHALL ISSUE’ LICENSING (adopted by 36 states):

As with drivers’ licenses, the licensing authority must / shall issue a carry permit –without question or discretion—to any qualified person.

Mandatory licensing is more permissive than discretionary regimes, which are intently more restrictive in the types and numbers of people licensed.

Qualifications for a carry permit include age (21 usually) and passing a criminal background check. States may also require such as the following:
a class and written exam on gun and deadly force law, a gun safety course, a gun-handling or marksmanship operator’s test (and Texas requires a conflict management course).
Again: Is this a good policy? Good for what? What’s its justification?

For example, is it good for the purpose of reducing criminal violence
–a focal concern of this hearing?

The justification of permissive carry laws illustrates more boldly than previous examples the two essential foundations for justifying public policy:

1. SCIENTIFIC: MATTERS OF FACT

For example: The best available evidence that the policy benefits the commonweal --at fair cost-- by demonstrably reducing overall criminal violence --or at least that the policy occasions no demonstrable increase in criminal violence or harm.

2. MORAL: MATTERS OF VALUE / INTEREST-BALANCING

For example: Self-preservation, self-protection, and – in the gravest extreme—self-defense against imminent and lethal criminal threat are our most fundamental human interests and moral rights –without which all others are –for all practical purposes-- meaningless.

Having available the most effective means of self-defense is –by parity— as fundamental a human interest and moral right as any.

This is especially true because --while it is the mission of our police to protect and serve—we cannot expect the impossible of our police. Let’s briefly consider:

The Question of Police Protection

Statutory and historic case law recognize this brute fact of social life, harking to the commonsense moral maxim: ‘OUGHT’ IMPLIES ‘CAN’

This means that we shall not hold agents responsible –or liable to penalty—for failing to perform a dutiful action when it is demonstrably beyond their ability.

The Superior Court in the notorious case of Warren v. District of Columbia (1981) reflected the law of the land:
"'[T]he fundamental principle [is] that a government and its agents are under no duty to provide . . . police protection, to any particular individual citizen.'

. . . The duty to provide public services is owed to the public at large, and, absent a special relationship between the police and an individual, no specific legal duty exists."
As individuals, we cannot –practically or legally—rely on police protection because our police cannot –practically or fairly—be expected to be everywhere they’re needed at once or in the nick of time.

The same moral maxim that exculpates the government for not always being ABLE to protect each and every one of us, demurs as follows:

Since we cannot –as a matter of fact and law—individually rely on police protection, the government must allow us –each and individually-- effective means for defense against criminal violence.

Note that I am NOT invoking:

The Second Amendment Right ‘To Keep and Bear Arms.’

I’m not going to respond to the ninny-natting against the Second Amendment as protecting an individual right –which the vast preponderance of authoritative scholarship has long shown it to be. See, for example:

Barnett & Kates, Under Fire: The New Consensus on the Second Amendment. Emory Law Journal (Fall 1996).

Granting that the Second Amendment protects an individual right will not by itself settle the issue of its scope or what restrictions it does or does not forbid. See:

Appendix C in the NRC’s report, The Implications of an Individual Right Interpretation of the Second Amendment.

We don’t need to get into Constitutional-legalistic disputes to recognize the more fundamental moral right to self-defense and to effective means for self-defense . . .

. . . because this moral imperative precedes –and supervenes-- positive law.

England –which now, with its blanket gun ban, enjoys the very highest rate of violent crime among western industrial nations— no longer recognizes the right to self-defense as a basis for allowing guns for defense.

This is ironic, because it defies England’s own William Blackstone –also an inspiration to our Founding Fathers—who (in his Commentaries on the Laws of England) insisted that the law recognize two kinds of ‘natural’ rights
“Primary rights” like “the free enjoyment of personal security”
and
“Auxilliary rights,” inseparable from the protection of primary rights

--“like access to 'courts of law,' and, so, too . . . 'the right of having and using arms for self-preservation and defence.'
(See William Van Alstyne, The Second Amendment and the Personal Right to Arms.
Duke Law Journal. 43 (April 1994): 1247-1248 [italics added].)

Some will always carp that this stuff about guns for self-protection is outdated, “anachronistic,” not fitting in today’s world, even “uncivilized” and worse.

I prefer evidence to opinion --what the best research says about:

The Effectiveness of Guns for Self-Defense Against Criminal Violence
&
The Impact of Permissive Carry Laws on Violent Crime

I’ll make this story short in the form of factoids and argument from authority.

(For the interesting details, see the National Research Council’s review of the research; Kates & Kleck, Armed: New Perspectives on Gun Control, Amherst NY: Prometheus Books, 2001; Lott,, MORE GUNS, LESS CRIME: Understanding Crime & Gun-Control Laws, Second Edition, Chicago: University of Chicago Press, 2000. For my own, briefer, supportive analysis --which there’s not time for here-- you can email me at covey@andrew.cmu.edu.)
• The National Crime Victimization Survey has indicated that some 80 percent of Americans, at some time in their lifetimes, will be a victim of violent crime.

What about the frequency & effectiveness of defensive gun use?

Kleck’s pre-eminent research on guns and violence has shown that:

• Guns are used 99 percent of the time to stop a criminal threat without killing or wounding the criminal (Kleck, Targeting Guns, 1997: 164). WHY? Common sense: defensive gun use –like offensive gun use-- most often compels compliance.

• Gun-armed defenders fare up to 2.5 times better than victims who do not resist or victims who resist in other ways or victims who resist with other weapons.

• There are an estimated 2 million+ defenses a year with 300,000 lives saved. But other estimates posit a tenth of Kleck’s. That would be ‘only’ 30,000 lives saved!

What about the effect of permissive carry laws on criminal violence?

• John Lott’s pioneering study of the effects of shall-issue carry laws in all 3054 counties of the U.S. for 15 years (1977-92) found that rates fell as follows:

murder by 7.65%, rape by 5.2%, robbery by 2.2%, aggravated assault by 7%

• Lott’s sophisticated econometric research methodology has been criticized, but his study has been replicated by the NRC, which –with sanctimonious caution-- concludes that the contest among the research & methodologies is too close to call.

• The NRC report is excessively agnostic. See Appendix A, entitled Dissent, by Marvin Wolfgang –arguably our pre-eminent living criminologist.

• What’s indisputable: Permissive carry laws do not increase criminal violence.

• Permit revocations are recorded by law in Florida & Texas; in their first years:

-The violent crime rate of Florida licensees was 24 ten thousandths of a percent.
-The violent crime rate of Texas licensees was 9 ten thousandths of a percent.
(Offending rates exceedingly lower than those for the state populations at large.)

As the Aussies say, No worries, mate! Permissive carry laws are good policy:

1. They do no harm, interdict criminal violence, and save lives.

2. They enable the most fundamental of moral rights, self-defense.

APPENDIX A

At the Senate Judiciary Committee’s Philadelphia hearing, Philadelphia Police Commissioner Johnson proclaimed:

“I think the availability of guns is the real problem.”

Freedom of opinion is alive and well (for better and worse, even in my classroom).

BUT inquiring minds want to know what our government officials actually know.

(Off-hand opinions are a dime a dozen. More is expected from public officials.)

I’m sure that Police Commissioner Johnson was quoted out of context and that --in context and after due consideration-- he has helpful knowledge (beyond off-hand opinion) to share from his distinguished professional career, his invaluable experience in the law enforcement trenches, and his privileged position in government.

I would like to know what the Police Commissioner of our Commonwealth’s murder capital thinks about the following facts from the State Police website www.psp.state.pa.us/ --as well as what he knows about what these facts mean about any correlation between criminal violence and the ‘availability’ of guns in our Commonwealth (the most gun-rich-per-capita state in the USA). I selected sample stats on 8/9/06 for violent crimes that often involve criminal gun misuse:

City of Philadelphia 2005 PAUCR rates per 100,000 population

criminal homicide 25.6 [off the charts of the national average]
assault 2599.5
robbery 683.6

City of Pittsburgh 2005 PAUCR rates per 100,000

criminal homicide 6.9 [kissing distance of the national average]
assault 1035.6
robbery 177.4

Armed-to-the-teeth counties clear of our Commonwealth’s murder capital
enjoy criminal violence rates lower than most western European nations.

WHAT --PRECISELY-- DOES GUN ‘AVAILABILITY’ HAVE TO DO WITH THE RATES OF CRIMINAL VIOLENCE ANYWHERE?

APPENDIX B

I do not presume that busy state senators have the time to read all the research that avid constituents throw at them.

But, in case there are Pennsylvania Senate Judiciary Committee staff persons with inquiring minds and the time to invest in some of the best scholarship on issues regarding what GUNS and GUN CONTROL have to do with CRIMINAL VIOLENCE, here’s a selective list of eminent resources:

• The National Research Council, Firearms and Violence: A Critical Review. 2005. (National Academies Press at http://www.nap.edu/catalog/10881.html).

• Samuel Walker, SENSE AND NONSENSE About Crime and Drugs – Fifth Edition (Belmont CA: Wadsworth, 2001).

• John R. Lott, Jr., MORE GUNS, LESS CRIME: Understanding Crime & Gun-Control Laws -Second Edition (Chicago: University of Chicago Press, 2000). The most comprehensive and econometrically rigorous (yet readable as well as controversial) research on guns, crime and violence to date, with an overview of the field and Lott’s responses to his critics.

• Gary Kleck, Targeting Guns: Firearms & Their Control (New York: Aldine de Gruyter, 1997). An update of Point Blank: Guns & Violence in America, which won the American Society of Criminology 1993 Hindelang Award for the best book in criminology within three years.

• Gary Kleck and Don B. Kates, Armed: New Perspectives on Gun Control (Amherst NY: Prometheus Books, 2001).

• David B. Kopel, The Samurai, the Mountie, & the Cowboy: Should America Adopt the Gun Controls of Other Democracies? (Buffalo NY: Prometheus Books, 1992). American Society of Criminology Book of the Year.

• Alfred Blumstein and Joel Wallman (Eds.), The Crime Drop in America. (New York: Cambridge University Press, 2000.)

• Robert J. Cottrol (Ed.), Gun Control and the Constitution: Sources and Explorations of the Second Amendment (New York: Garland Publishing, 1994).

• Nicholas J. Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, Rutgers Law Journal (Fall 1992).

Friday, January 23, 2015

The Wrong Damned Argument

"The firearms here are without question some of the most commonly used. One out of nine guns sold since the invention of AR-type rifles is an AR rifle." [More]
Fine, but that's tangential to the core "common use" issue.

The function of the militia, defined as “all males physically capable of acting in concert for the common defense [and] bearing arms supplied by themselves and of the kind in common use at the time,” was — and is — to field citizen soldiers. And these citizens bore arms that were suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles. They came with the intent to match and best a professional military threat.

From U.S. v. Miller, the court looked for "“some reasonable relationship to the preservation or efficiency of a well regulated militia [or] that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”

Why isn't lawyer James Vogts reminding the judges of that?  And why don't they already know it?

Or do they?

Tuesday, January 09, 2018

In Common Use

Amicus Brief on California Confiscation of Standard Magazines [More]
He does reference militia use, which is good.  My layman's concern is that arms "in common use" by the military are what need to be definitively recognized.

I'd like to see this Kolbe brief repurposed for Duncan.

[Via Michael G]

Sunday, February 10, 2008

Guest Editorial: "Awkward"

So, When Should We "Shoot the Bastards?"
by Mike Vanderboegh

9 February 2008

(More along the line of grim thinking inspired by
government misconduct in the Olofson case.)

When the 23rd Regiment was finally back in Boston after the ordeal of April 19, adjutant Frederick Mackenzie wrote in his diary, "I believe the fact is, that General Gage was not only much deceived with respect to the quantity of military stores said to be collected at Concord, but had no conception the rebels would have opposed the King's troops in the manner they did." -- General John Galvin, The Minutemen, Pergamon-Brasseys, 1989, page 244.

"Where to draw the line?"

"America is at that awkward stage. It's too late to work within the system, but too early to shoot the bastards." - Claire Wolfe, 101 Things to Do 'Til the Revolution

Libertarian Wolfe made her famous observation above in the mid-nineties. Now here we are more than ten years later, even more isolated and politically disenfranchised, and we must ask the question: how far do we have to go to get past "awkward?"

History never exactly repeats itself and thus is an imperfect guide. Studying history "we see through a glass, darkly." Still, there are patterns in history that deserve our close attention, so we may better understand how to act in the present and to enable us to better predict the future. Through history, we understand that no idea, bad or good, ever truly dies. We are also shown that people, being human, repeat the mistakes of their ancestors, over and over again. Indeed, there is no one blinder than a historical amnesiac.

So when we consider the question suggested by Claire Wolfe, that is, when are we past the awkward stage and into the day of "shooting the bastards," we must consult history for examples to guide us. I offer firstly a lesson in waiting too long from William Sheridan Allen's outstanding study, The Nazi Seizure of Power: The Experience of a Single German Town (Franklin Watts/Grolier, 1984):

And yet, one has to ask the question, what happened to those who had sworn resistance? What happened to the Reichsbanner, which had repeatedly asserted, in the years before Hitler came to power, that when the expected Nazi coup came they would be able to defend the Republic? In Northeim, at least, the Republic was destroyed without a single blow struck in its defense. The Reichsbanner, with all its plans for instant mobilization, had its members struck down one by one, its leaders imprisoned, beaten, hounded from their jobs and their homes without any resistance from the organization as a whole. Perhaps the basic reason for this was that there was no Nazi coup d'etat. Instead there was a series of quasi-legal actions over a period of at least six months, no one of which by itself constituted a revolution, but the sum of which transformed Germany from a republic to a dictatorship. The problem was where to draw the line. But by the time that line could be clearly drawn, the revolution was a fait accompli, the potential organs of resistance had been individually smashed, and organized resistance was no longer possible. In short, the splendid organization was to no avail; in the actual course of events it was every man for himself. (Allen, p. 191)

Even after reading Allen's work, I have often wondered why the German opposition just laid down without a fight. Back in the nineties, I was talking to Aaron Zelman of Jews for the Preservation of Firearms Ownership, and one of us (I recall it was him, he thinks it was me) made this observation: "If every Jewish and anti-Nazi family in Germany had possessed a Mauser rifle, 20 rounds of 7.92mm ball and the will to use it, Adolf Hitler would have been an obscure footnote to the history of the Weimar Republic." True enough, whoever said it. But as Grant Hammond observed about Colonel John Boyd's seminal theories of warfare:

"There is another trinity in Boyd’s strategic catechism as well. It is a concern for what he lumps together as moral-mental-physical aspects of opponents. Most definitions of war define them as contests in physical violence. Boyd sees them mainly as moral struggles won as much by mental as physical prowess. But he sees the complex—moral-mental-physical—as a single entity, a synthesis that can be broken down analytically but must be understood as a composite whole. It matches another Trinitarian composite, that of people first, ideas second and things third. This happens to be the opposite of the way most militaries approach problem solving by focusing on technology, platforms and weaponry first, ideas about their employment second and people—who are largely interchangeable and ultimately, are expendable—third. This way of thinking has little utility in Boyd’s Way and in fact, may be the seed of many a defeat." (Source: Grant T. Hammond, The Essential Boyd, found at http://www.belisarius.com/modern_business_strategy/hammond/essential_boyd.htm)

Many Americans, especially us small "r" republicans, take heart when we recall that the American citizenry possesses more small arms than most of the world's armies put together. And as Clausewitz observed, in military affairs quantity DOES have a quality all its own (just ask any Korean War veteran about his first experience with a Chinese human wave assault). Still, as Napoleon insisted, "The moral is to the physical as three is to one." We cannot be protected by our possession of a hundred million rifles if we lack the will use them. Iraq was an armed society, yet the Saddam dictatorship had little trouble tyrannizing that country for decades. And it cannot be doubted that there are many American gunowners who would, at the first command of an American tyranny, turn in their weapons simply because they are "law-abiding" people who "don't want any trouble" -- simply because, in fact, they have forgotten what it is to be free. They have grown used to doing what the government tells them to do. And perhaps that was the problem with the Weimar republicans:

The Northeimer Reichsbanner itself was ready to fight in 1933. All it needed was an order from Berlin. Had it been given, Northeimer's Reichsbanner members would have carried out the tested plan they had worked on so long -- to obtain and distribute weapons and to crush the Nazis. But (the local Reichsbanner) would not act on its own. The leaders felt that single acts would come to grief, would possibly compromise the chance when it finally did come, and would, in any event, be a betrayal of discipline. They felt that their only hope was in common action, all together, all over the Reich. Hadn't (their national leaders) said that only a counterattack should be made? So they waited and prayed for the order to come, but it never did. And while they waited the Nazis began tracking them down, one by one. (Allen, p. 191)

The Germans, wholly indoctrinated in obeying orders, were incapable of acting without them. Because their would-be tyrants represented "the government" and cloaked their wolfish actions in "legal" sheepskin, because their own "leaders" could not or would not give the order, they all ended up in a concentration camp -- leaders and followers -- without ever having struck a blow. I am again reminded of Boyd's "moral-mental-physical" dynamic by this observation of Allen's:

"This situation, where even heroism was denied the men of the democratic Left, came about in no small measure because of the failure of the Social Democrats to understand the nature of Nazism. Just as their basic premise in the years before Hitler came to power was the erroneous assumption that the Nazis were essentially Putschists who could not possibly attract a mass following, so their basic premise after Hitler came to power was the equally erroneous assumption that his would be a government similar to the others of the Weimar period." (Ibid, p. 192)

Because of their inability to see the enemy for what he really was (and if ever there was an enemy who delighted in shouting his intentions to the rafters it was Hitler) they went straight from the "awkward stage" to the concentration camps without ever firing a shot.

Thinking and Acting before Feeling.

Now, contrast the behavior of the Germans to that of our Founding Fathers. This is best illustrated by reading Gordon S. Wood's The Creation of the American Republic, 1776 - 1787:

In the American Revolution, Wood wrote, "there was none of the legendary tyranny of history that had so often driven desperate people into rebellion. The Americans were not an oppressed people; they had no crushing imperial shackles to throw off. In fact, the Americans knew they were probably freer and less burdened with cumbersome feudal and hierarchical restraints than any part of mankind in the eighteenth century. To its victims, the Tories, the Revolution was truly incomprehensible. Never in history, said Daniel Leonard, had there been so much rebellion with so 'little real cause.' . . . The objective social reality scarcely seemed capable of explaining a revolution . . .

As early as 1775 Edmund Burke had noted in the House of Commons that the colonists' intensive study of law and politics had made them acutely inquisitive and sensitive about their liberties. Where the people of other countries had invoked principles only after they had endured 'an actual grievance,' the Americans, said Burke, were anticipating their grievances and resorting to principles even before they actually suffered. 'They augur misgovernment at a distance and snuff the approach of tyranny in every tainted breeze.' The crucial question in the colonists' minds, wrote John Dickerson in 1768, was 'not, what evil HAS ACTUALLY ATTENDED particular measures -- but what evil, in the nature of things, IS LIKELY TO ATTEND them.' Because 'nations, in general, are not apt to THINK until they FEEL, . . .therefore nations in general have lost their liberty.' But not the Americans, as the Abbe Raynal observed. They were "an 'enlightened people' who knew their rights and the limits of power and who, unlike any people before them, aimed to think before they felt."

(Source: Gordon S. Wood, The Creation of the American Republic, 1776-1787, UNC Press, 1969, pp. 3-5)

The Founders were people who believed in "preserving the spirit of resistance." To take Abbe Raynal's words to their conclusion, the Founders aimed to think AND act before they felt. Unlike the Germans, their "awkward stage" ended at Lexington green, and ultimately led to liberty. In the light of recent events such as the Olofson case, it seems plain that our own "awkward stage" may be perilously close to drawing to an end. There are those who still insist that such unconstitutional outrages perpetrated under color of law deserve nothing more than verbal condemnation or further attempts at legal redress in a "justice" system rigged against us (as if these thugs pay attention to the law anyway). Used to inaction and afraid of even voicing the threat of justifiable self-defense, these timid souls, these "summer soldiers and sunshine patriots," would have us wait for true tyranny before acting. This was not the way of the Founders. They understood that tyranny is best strangled in its unholy infancy, before it becomes a raging beast. They understood the threat, they prepared to meet it and, in the end, they defeated it. The Germans of the 1930s did not, and they were devoured.

I say we would do well to emulate the Founders rather than the Germans, to think and ACT before we feel, when it will be too late. This is important not only for those Americans who wish to remain free, but for those on the other side who unthinkingly seek to rob us of our freedoms and for those in the middle who (ignoring the Law of Unintended Consequences) sit idly by, content to watch the destruction of the American republic on television while thinking it has nothing to do with, and can have no effect upon, them. If we small "r" republicans do nothing else, we should let the rogue elements of our own government know that in addition to outnumbering them, we still preserve the spirit of resistance, despite have been marginalized politically by the two major parties. Perhaps, if everyone understands that, the Redcoats (now wearing black raid gear) will not once again blunder and unknowingly march out from Boston into an unexpected but perfectly predictable butchery contest.

By our words, our preparations, our training and our actions we, the armed citizenry of the Republic of the United States of America, still have the opportunity to convince them of our unyielding determination to remain free. It may be our last best hope to preserve uninterrupted both our God-given liberties and the domestic peace we have come to love too much. While it is better to be "awkward" than to be dead, it is better still to die fighting than to be enslaved without a fight. Just ask the Germans of the Weimar Republic. So THINK and ACT before you FEEL. The Founders did.

Mike Vanderboegh
PO Box 926
Pinson, AL 35126
GeorgeMason1776@aol.com

More About Mike Vanderboegh at WarOnGuns

Friday, February 01, 2008

Ourselves Alone

A Guest Editorial
by Mike Vanderboegh


"Still, let us not be complacent. Should private interest fail today and public purpose thereafter, what rough beast, its hour come round at last, may be slouching toward Washington to be born?" -- Arthur Schlesinger, Jr., paraphrasing Yeat's "The Second Coming" in The Cycles of American History, 1986.
"The falcon cannot hear the falconer": The Politics of 2008

Small "r" republicans -- folks who believe in the original intent of the Founders as expressed in the Declaration of Independence and the Constitution of the United States, the rule of law, free markets, private property rights and the right to keep and bear arms -- are not going to be represented in this presidential election. There is nothing new about that. What is new is that the GOP candidate will likely feel he owes absolutely nothing to the conservative base of his own party. Of course, the antipathy is mutual and many of us will not vote for him in either the primaries or the general election.

Not that McCain and the party elite think we have any choice. The Candidate's mother was doing some "straight talk" of her own a few days ago during this exchange with C-SPAN's Steve Scully.

Scully: "How much support do you think he has among the base of the Republican Party?
Roberta McCain: "I don't think he has any. I don't know what the base of . . . maybe I don't know enough about it, but I've not seen any help whatsoever."
Scully: "So can he then go on and become the nominee of this party?"
Roberta McCain: "Yes, I think holding their nose they're going to have to take him."
Well, I don't know about y'all but I ain't holding my nose while voting for GOP sellouts ever again. As Hugh Hewitt told the Associated Press, "Senator McCain is a great American, a lousy senator and a terrible Republican. He has a legislative record that is not conservative. In fact, it is anti-conservative." Dubya at least went through the motions and pretended to be one of us. McCain glories in spitting in our face and expects us to like it.

American Conservative Union Chairman David A. Keene said there's little possibility of reconciliation. "The overt hostility he has demonstrated toward conservatives as a movement and toward their leaders is one impediment," he said. Mr. Keene said that on a "half dozen issues, from taxes to the Second Amendment to the Constitution, McCain has yet to clear up his flip-flops. He claims to be a conservative, but thinks that the federal government should be used to achieve whatever is his goal of the day, even to restricting boxing. He claims he isn't, but operationally, he's a statist."

New Jersey Republican National Committeeman David Norcross, who ran the 2004 Republican National Convention in New York, said Mr. McCain's nomination will hurt the Republican Party. "Basically, he has no use for it and has no sense of what it is all about," he said. "John McCain thinks politics is all about the individual." (Source, Washington Times, Jan 31, 2008, "McCain Savors Momentum" by Stephen Dinan)

And one other thing about John McCain that bears mentioning. He is one vindictive SOB. Arizonans who know him best say that if you cross him, he will stick it to you, even if he has to wait years to sharpen the knife. So we are expected to hand the keys to the Oval Office to this guy who despises us, who sneers at our principles, at a time when the Democrats, not the GOP, will control the House and Senate? On the altar of the false god "bipartisanship," McCain will no doubt find that there is little of our money and few of our rights that cannot be sacrificed for "the greater good."

Now some folks believe in the quixotic campaign of Ron Paul. Paul will likely end up as the best funded Libertarian candidate ever, after he finishes raising all the money he can during the GOP primary season. What this will accomplish, beyond allowing him to pitch his political points to a larger but still largely tone-deaf voting public, is beyond me. He will certainly split some of the vote with the GOP, even though many of us small "r" republicans will not vote for McCain anyway as we have had it up to here with the continual lies and sellouts over the past 14 years by the woefully misnamed "Republican" party.

The inevitable Democrat winner of the general election will see in us nothing but "domestic enemies" of their regime, and they will have the advantage of all the freedom-destroying, tyranny-enabling legislation and precedent of the Bush Administration to turn upon us. Which "terrorists" do you think Hillary will use the PATRIOT Act against?

Politically, come Inauguration Day 2009, we are going to be very, very lonely republicans.

"Things fall apart": The Economics of 2009

"There Ain't No Such Thing As A Free Lunch."
-- Robert Heinlein, The Moon Is a Harsh Mistress, 1966
Randall Forsyth, writing in Barrons on 22 January 2008, says "WELCOME TO THE CRASH OF 2008". Whether future historians write of a crash or not, the American recession coming down the road at us is likely to be more severe than anything we've seen in modern memory since the Great Depression. The subprime fiasco and the bursting of the credit bubble have yet to shake completely out. "Stimulus packages" and Fed rate cuts do little or nothing to address the systemic infections.

Indeed, a blogger writing at bigpicture.typepad.com calls the Fed interest rate cut of 75 basis points "a shot of penicillin to a cancer patient" demonstrating "a none-too-faint whiff of panic" by Bernanke and Co. which he believes will merely aggravate the problem in the credit markets, not settle it. We will see, say many analysts, the proof of the old dictum, first enunciated by Army General and economist Leonard P. Ayres in 1946 and more famously popularized by Robert Heinlein twenty years later in his novel The Moon Is A Harsh Mistress: "There ain't no such thing as a free lunch" which is often reduced to the acronym "TANSTAAFL":

"3) TANSTAAFL: The free lunch crowd (a/k/a Long & Wrong) has been chanting for Fed cuts. However, these are not without consequences, as Inflation remains a pernicious threat. Here's a question: What goes to $5 a gallon first - Milk or Gasoline? How about $6?" (Source: http://bigpicture.typepad.com/comments/2008/01/a-whiff-of-pani.html)
So what will we face economically on that inauguration day of 2009? Millions are expected to be evicted from their homes by then. Foreclosures in California are reported as of the last quarter of 2007 to be up over 500% over the same period in 2006. It may be ten times that by January 2009. If the recession is a deep and a long one as seems likely, we will soon see strikes of union members broken by employers using illegals as strike-breakers. What will the Democrat pols who will be in control do then? Which of their constituencies will they side with? Both? None? And who will the unemployed and dispossessed middle class blame for their misery? How will our society, riven by competing economic interests, racial identity politics and old grievances previously papered over by affluence, how will it react to sudden impoverishment? Not well. Not well at all.

"The center cannot hold": The Rule of Law in 2010

And what scapegoats will be found to harness the natural resentments of the economically distressed? What political diversions will be deemed expedient to prevent blame from being assigned to the political mandarins? Is there a Reichstag Fire or another Oklahoma City bombing in our near future? For the rule of law, having been tattered by unpunished government misdeeds such as Waco and Ruby Ridge in the last decade of the 20th Century and shredded by the elites looking the other way on illegal immigration in this first decade of the 21st Century, is just about discredited. And there will be even more forces pulling at the essential glue of the republic around the next turn in the road.

By July, we should have a Supreme Court decision in the Heller DC gun ban case. This will tell us if the Black Robes consider us as citizens with the inalienable right to arms or as serfs who may be disarmed at will. The Bush administration, pusillanimous on the 2nd Amendment from the beginning, has now given us a brief in that case which manages to take both sides at the same time. In addition, we have agencies like the ATF who have long had a habit of ignoring law and precedent, soaring to even greater heights of bureaucratic misdeeds, framing law-abiding gun owners whose weapons accidentally malfunction on charges of making and transferring illegal machine guns. (See my essay "Who Shall Guard the Guards" at the waronguns blogspot regarding the shocking case of US v. Olofson.)

And when the majority of the population comes to the conclusion that we no longer are governed by the rule of law, but by the whims of men; when we begin to believe that we can no longer expect a fair trail and that the law no longer protects the innocent; then some of us are going to conclude that the law no longer protects our oppressors (who act under color of law) either. We will be, as Yeats put it:

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.
--W.B. Yeats, The Second Coming
Who then can we count on? Ourselves Alone.

Too long our Irish hearts we schooled
In patient hopes to bide,
By dreams of English justice fooled
And English tongues that lied.
That hour of weak delusion's past-
The empty dream has flown :
Our hope and strength, we find at last,
Is in OURSELVES ALONE.
-- "Sinn Féin" (Ourselves Alone) by "Sliabh Cuilinn" (John O'Hagan), 1845
Sinn Féin is an Irish-language phrase whose literal translation is "ourselves" or "we ourselves," but is most often rendered in English as "Ourselves alone." A political slogan used by Irish nationalists in the late 19th and early 20th century, it advocated Irish national self-reliance, expressed the yearning for an independent Irish republic and even included the revival of the Irish language. Its earliest use was to describe individual political radicals unconnected with any party but who shared the dream of Irish independence and republicanism.

Does that not now describe us small "r" republicans of the present-day American republic? We find ourselves at the end of this first decade of the 21st Century faced with the uncomfortable reality of becoming a despised and oppressed minority in our own country, unrepresented by any party. We are thus bereft because we (and our principles) have been sold out by both major parties. We didn't leave them, they left us. And in the process, they also turned their backs on the oaths they took to uphold and defend the Constitution. They did. We didn't. And where does that leave us? On whom may we rely for our future liberty and safety? Why on ourselves, alone.

We should not, at this juncture, worry about forming a political party of our own. Whatever effort we expend in that direction (and I know this will be instantly rejected by the Libertarian and Constitution party loyalists as well as the Paul supporters of all stripes) will be ineffective, swamped by the tidal wave of history which is about to engulf us. Our enemies (that is to say the enemies of the Founders' republic) will have the whip hand at national politics for the foreseeable future. What we have to do is to make arrangements ahead of time to give them pause and make them find reasons to stay that whip hand, lest they lose it.

The first imperative for all of us, ourselves alone, is to recognize that each of us has a piece of the overall picture and to begin making practical alliances that strengthen and protect us all. Entrepreneurs, home schoolers, gun rights advocates, tax reformers, Internet free speechers, Minutemen, libertarians, Christians, fully informed jury and common law advocates -- all have allowed themselves to be divided by little things when it is the big things that threaten us all. For example, most Libertarians differ with Christians on the sanctity of life, but they can certainly agree that the Bill of Rights guarantees the rights of all to speak without being strangled by leftist "hate speech" codes.

In a period of economic hardship, societal breakdown and political repression, we can overcome our individual weaknesses and mold our individual strengths into common bonds that protect us -- bartering skill for skill, farm produce for community security, and above all, realizing a common determination that protecting the rights of individuals is the best guarantor of the rights of all. Collectivists, including government bureaucrats and street gang leaders, are individual cowards when confronted by free people who refuse to be victims and who are numerous enough, organized enough and well armed enough at the point of contact to make the bureaucrat (or the street gang leader) doubt that they can accomplish their depredation without cost to themselves.

We have more power on the local and state levels than we know. Certainly our enemies fear us or they would not have been seeking to disarm us these past 40 years. Once we are able to stand up, ourselves alone, and survive the coming challenges to our liberty and property, we may be ready for a political party to consolidate our demands for a revived American republic and a restored Constitutional rule of law. Until then, we should abandon national politics that we are fated by events to lose and put all our efforts into standing together on a local and state level, counting only on ourselves alone to maintain our liberty and property. The GOP can go the way of the Whigs, or to the Devil, whichever suits them. To paraphrase the Mexican bandit leader in Treasure of the Sierra Madre, "We don't need no stinking national party buttons."

It will not be easy or pretty, but with faith in God and the help of our fellow American citizens, we can prevail. We have only to look to ourselves alone for our security and not to the false promises of the rigged game of national politics.

Mike Vanderboegh
PO Box 926
Pinson, AL 35126
GeorgeMason1776@aol.com