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An Empirical Liberty Framework for Debating Gun Control

Those in favor of gun control repeatedly proclaim that something must be done to stop gun violence, to include repealing the Second Amendment. At the same time, those who defend a robust interpretation of the Second Amendment believe that the right stipulated in that Amendment needs to be broadened, not lessened. The debate between the two groups is explicitly a debate about gun control, however underlying this parley is the inevitable conflict of the rights of the collective and the rights on the individual. This tension that exists between those in favor gun control and those in favor of the right to keep and bear arms is an exemplar of the internal conflict between the manifestations of the foundational rights of life, liberty, and the pursuit of happiness, and the external tension between the freedom of individual and the freedom of the collective, i.e. the state. There is no perfect solution to the problem of legitimately competing rights, and I propose no such solution. Yet, as gun control measures are submitted to the American people, it is necessary to have a method to evaluate them, one that will avoid the emotionalism that animates rhetoric on both sides of this debate.

I propose that we think through competing rights claims, while also carefully and impartially assessing the evidence with an Empirical Liberty Framework. Doing this as a two-step process means that we would recognize that there should not be any restriction on an individual right unless there is compelling empirical evidence for another right to restrict it. The demand for empirical (i.e. statistical) evidence is not a utilitarian criterion, but rather a dispassionate way to evaluate the policy ramifications of gun control proposal with respect to individual freedom.

The Empirical Liberty Framework stipulates the primacy of the rights of individual and defends the Constitution’s provisions in a clear way without rejecting collective rights reflexively. The recourse to statistical evidence is salient since it helps mediate between two conflicting individual rights, or between individual and collective rights. Further, the empirical nature of the framework allows those who take seriously the individual’s rights to dialog about gun control with someone who does not share his philosophical viewpoint. Echoing this, the RAND Corporation recently released The Science of Gun Policy: A Critical Synthesis of Research Evidence on the Effects of Gun Polices in the United States, which states that agreement cannot be made on gun control policies “unless decisionmakers can draw on a common set of facts based on transparent, nonpartisan, and impartial research and analysis” (p. 3). Hence, the logic of the Empirical Liberty Framework is to work toward a science of gun policy, where the right-to-self-defense is preeminent.

There are a myriad of suggestions for types of gun control, which can roughly fall into three classes: (1) restrictions on firearms and their accompaniments (e.g. banning so-called “assault rifle” or “high-capacity” magazines), (2) restrictions on who gets to use firearms (e.g. age or mental health limitations), and (3) restrictions on where firearms can be carried or used (e.g., concealed carry permits or “Gun Free Zones”). The often substantial differences between the three classes and within each class speaks to the danger of being reflexively “for” or “against” gun control. For example, one could consistently argue for strong mental health curtailments of gun ownership for particular individuals, while supporting no general restrictions on any semi-automatic rifle.

Further the empirical evidence on the effects of the regulative host of gun control varies by the specific type of policy, which should also give one pause to demand gun control without thought or care to the civil liberties being infringed upon. Ergo, assessing the plethora of gun control proposals demands a consistent evaluation method like the Empirical Liberty Framework. I will consider two gun control proposals that are currently being discussed as exemplars and evaluate them under this framework. All gun control laws and proposals can be assessed in the following manner.

Gun Control Proposal One. Raising the age to purchase rifles (or at least certain types of rifles, i.e. so-called assault rifles) to 21. This proposal is a new one and it is due to the murderer in Parkland, Florida being nineteen years old. Handguns are already generally banned by the Federal government for purchase by anyone under 21.

Under the Empirical Liberty Framework this is a clear restriction of the liberty of adult Americans who as a group have committed no crime, no infraction, pose no danger to anyone else, and have a desire to have a firearm (to include for self-defense), and so should be opposed unless there is overwhelming empirical evidence to support it. Further, individuals in this age group can be in the military and police, yet would not be allowed to privately own a weapon they are trusted by the public to use. While this is already mainly the case with handguns, this proposition would further add to the arbitrary gradations of legal adulthood: the age of consent, to get married, to drive, to vote, to buy tobacco, to buy alcohol, to gamble, to purchase firearms, or to even be on one’s parents insurance can be any number of ages between 16 and 26.

This speaks to a certain inconsistency that is inherent in all schemes that restrict freedom, where the government mandates a sliding scale of maturity. The incongruity of there being a suggestion to lower the voting age to 16 contemporaneously with calls to increase the age to buy rifles to 21 offers a jarring paradox. This inconsistency is unfortunately a symptom of the way that civil liberties are treated like social programs in the United States: privileges that can be given or taken away by the Leviathan’s mercurial whim, rather than viewing them as fundamental constitutional protections.

As of the 2010 Census, there were over 12.2 million Americans who fall within this age group of 18-20 year-olds. It is certainly no small thing to restrict a constitutional right of this many people. So, we should demand evidence that would suggest this manifest restriction of liberty be offset by a dramatic improvement in public safety.

Of the 34 mass shootings in the United States since 1949 that have resulted in the murder of at least eight people, the mean age of the perpetrators is 33.4 years with a median of 31.5 years. More specifically, there have been 11 shootings where the perpetrators used assault rifles, with a mean age of 30.4 years and a median of 28 years. Further, only three of the 12 murderers were under 21 years of age at the time of their crimes, viz. two nineteen year-olds and a twenty-year old.

It would be fair to ask why the eighteen year-olds are being punished when there has not been one 18 year-old that has used an assault rifle in a mass murder. An even better query: why propose denying over six million women a constitutional right when there has been precisely one woman who has committed a mass murder of eight or more with any gun, and her partner in crime was her husband. (One of the two 2015 San Bernardino terrorists has this malign distinction.) Precisely zero women of any age have been the sole murderer in a mass shooting. Empirically there is greater justification for banning all men from buying firearms, than there is for a ban based on an arbitrary age limit. Yet, even the capricious Leviathan is cognizant that this violation of individual rights cannot hide behind the curtain of public safety, though high school students being used as props is perhaps the advent of a sheer curtain.

The discussion of descriptive statistics regarding minimum age requirements in the last two paragraphs is helpful, and a discourse with inferential statistics is even more fruitful. RAND’s The Science of Gun Policy in its efforts to prove a synthesis of research evidence with respect to minimum age gun control draws the following conclusions in Chapter 12:

  • “Minimum age requirements for purchasing a firearm have uncertain effects on total homicides and firearm homicides” (p. 154).

  • “Minimum age requirements for a firearm have uncertain effects on total homicides and firearm homicides” (p. 155).

  • “Minimum age requirements for purchasing a firearm have uncertain effects on mass shootings” (p. 157)

Thus, the evidence for all three of these relationships regarding age requirements are inconclusive based on the current academic studies. (For the effects of the minimum age requirements on suicide and unintentional firearms deaths see Chapter 12 of the RAND report as well.)

Gun Control Proposal Two. Gun-Violence Restraining Order. Recently debated by David French and Jacob Sullum, a Gun-Violence Restraining Order (GVRO) or an Extreme Risk Protection Order (ERPO) legislation allows law enforcement officers, family, or household members to petition a court to keep guns away from a dangerous person for a short period of time. The due process protections that are built into domestic violence restraining orders are similar to those in a GVRO. To be clear this is not the same as what the President seemingly has advocated, a GVRO must always respect the due process of the Fifth and Fourteenth Amendments.

Gun Control Proposal One ran afoul of the Empirical Liberty Framework since it restricts the freedoms of millions due to the terribly evil actions of the few, and there is no conclusive evidence that such age restrictions reduce the number of murders. This proposal focuses on only those who are a danger to themselves or others, and so avoids the speculative utilitarianism that reflexively stacks the deck in favor of right-to-life claims without considering the competing rights-to-self-defense claims. In addition to protecting the inherent right to self-defense, a GVRO also respects due process of the individual. To iterate, a GVRO works on a case-by-case basis with regard to the due process of each individual, while a blanket ban on the on the sale of firearms to 12.2 million people as desired by Proposal One is done on such a large scale, that the violation 12.2 million people’s due process goes by apathetically unnoticed.

There are numerous examples of the Leviathan failing in its obligation to protect its citizens with respect to mass shootings: individuals passing background checks who should not have, the FBI knowing of the violent tendencies of individuals yet do nothing to stop them, etc. So one way for the adult citizen to protect himself and others is by being able to have a gun (assault rifle or otherwise) and another way for the adult citizen to protect himself and others is being able to have a way to stop one of these would-be murderers with the use of a GVRO from having a firearms since the Leviathan is often too incompetent to be able to do so on his own. This illustrates that the GVRO is not actually a tool of the Leviathan to suppress individual liberty like an assault rifle ban, but rather another weapon of the free individual to defend himself against evil. In other words, the GVRO is a way to recognize the right-to-life of the individual as well as the right-to-safety of the state while at the same time upholding the rights of self-defense and due process. This formulation hints at the strength of the framework: by giving the individual the right to defend himself both with a firearm and a GVRO, he is able to assist with both the right-to-life and the right-to-safety.

Returning to RAND’s The Science of Gun Policy one last time: background checks that take into account such things as restraining orders and mental status (Chapter 3) seem to offer moderate evidence of reducing gun violence. This gives some inferential evidence that a GVRO’s flexibility to deal with people who are known to be violent and/or mentally ill, given that it respects due process, is a type of gun control that the Empirical Liberty Framework will allow.

Individual rights such as self-defense are not absolute even in a vacuum, and when individual rights are forced to bump into another in nature, there needs to be guiding principles that respect the individual as well as the collective rights of the polity. The Empirical Liberty Framework does this by a rational evaluation of the given proposal, with the following consequences. First, most gun control laws and regulations should be rejected, i.e. most gun control is like Proposal One (limitation of the rights of a group) rather than Proposal Two (limitation of the rights of an individual). Second, the framework elucidates the danger of automatically placing a collective right over an individual right, since individual rights are so entwined, that the restriction on one (e.g., gun rights), will inescapably lead to the restriction of others (e.g., due process).

In the age where “As a such and such I feel offended” by or a “devastating meme” apparently counts as a damning, conclusive argument, it is imperative that there is a way to evaluate policies in a consistent methodological way that respects individual liberty. Above I have demonstrated how the Empirical Liberty Framework applies to two types of gun control, but without loss of generality, these same two criteria can be applied to any policy whether gun control, abortion, tariffs, or anything else.

Reader Discussion

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on March 21, 2018 at 10:38:07 am

Brendan Patrick Purdy "stipulates the primacy of the rights of individual and defends the Constitution’s provisions in a clear way without rejecting collective rights reflexively." He so stipulates while invoking "the foundational rights of life, liberty, and the pursuit of happiness," as he mentions "the external tension between the freedom of individual and the freedom of the collective, i.e. the state."

There are a couple problems here.

First of all, to conflate community well-being with "the state" is jarring, although I do recognize the issue of the progressive centralization of power in the USA.

More important, to say "life, liberty, and the pursuit of happiness" while stipulating "the primacy of the rights of individual" is an Orwellian transmogrification of the meaning of the Declaration of Independence.

The Declaration's phrase "unalienable rights" was coined by Francis Hutcheson early in the 18th century. According to Hutcheson (as echoed by Burlamaqui -- ''rights that cannot be renounced" and by John Adams -- "general principles of Christianity"), unalienable rights correspond to our duties of piety and benevolence (the two basic commandments of Jesus Christ), and this is the pathway toward happiness. For Hutcheson's basic approach to happiness, see the very first section of his "Short Introduction to Moral Philosophy," which was studied by John Adams and at the College of Philadelphia (where Benjamin Franklin was a trustee) in the years leading up to the Revolution. Online at http://oll.libertyfund.org/titles/hutcheson-philosophiae-moralis-institutio-compendiaria-1747-2007

In other words, acting on your unalienable right to the pursuit of happiness presupposes active concern for the well-being of your neighbors and of society as a whole. Of course, as was routinely observed at the time, there are concentric circles of benevolence: immediate family, extended family and neighbors, one's local community, etc. extending progressively outward toward all of humanity.

As I have mentioned before, the Declaration's repeating of Cumberland's and Burlamaqui's phrase "pursuit of happiness" needs to be interpreted in light of the actual anti-Lockean Congressional definition of happiness, written by John Adams and approved by Congress in the original May 1776 independence resolution. See "The May Resolution and the Declaration of Independence" at http://startingpointsjournal.com/may-resolution-declaration-of-independence/

All this, in my mind, is the foundational context for interpreting the Second Amendment's prohibition on Congress from infringing on the individual's right to bear arms. As John Dickinson repeated in the 1760s, there is no happiness without security of property, and it seems clear that the individual's right to bear arms was originally intended in part as a check against the potential for tyrannical, confiscatory acts by an over-reaching, distant central government (with Parliament's Stamp Act as an example that drove the point home). But back in the day, a militiaman's rifle was also the tool that he used to bring back a deer or a turkey for the dinner table. Technology has changed, and a "well-regulated militia" has morphed into the National Guard. Perhaps, in addition to the individual right to bear arms, there is the question of how much federal versus state control there should be over the National Guard.

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John Schmeeckle
on March 21, 2018 at 11:06:57 am

I didn't see where you took up the issue of "gun free zones" (which I call "victim enrichment areas"). You listed initially but make no rational analysis of an area that has gobs of data available to recommend against such things. Is there a part 2?

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Wes Howard
on March 21, 2018 at 12:21:42 pm

Thank you for your discussion. I think the issue is public safety and not the individual rights against the state (some gun owners are claiming defense against the "deep" state, whatever that means). Gun violence is a infringement on the right of individuals to live and this violation of human rights is ignored by the gun rights crowd. In much of my reading, there were references to "peaceable" people having rights to gun ownership in early writings, and in varying localities restrictions were in place. The argument for absolute individual gun rights is disingenuous, and as Justice Scalia wrote in DISTRICT OF COLUMBIA ET AL. v. HELLER:

"“Like most rights, the right secured by the Second Amendment is not unlimited…” It is “… not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

“Nothing in our opinion should 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.”

“We also recognize another important limitation on the right to keep and carry arms. Miller (an earlier case) said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”

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Daniel Slaby
on March 21, 2018 at 13:16:48 pm

The empirical approach must take certain historical facts into account, the most significant being that the 2A was originally intended to apply only to the national government and did not interfere with an individual state legislating on the matter (subject to its own constitution, of course) as it saw fit. Had progressives not been so eager to destroy that structure that they might apply selected prohibitions against state governments, there would now be no question that any state could ban any firearm it liked. The attempt to create a filter called "rights essential to ordered liberty" as a basis for selection of which amendments were to now apply to states was doomed to fail and frankly was a judicial fraud. Progressives have always been short-sighted. All that matters is getting the result they want NOW, "by any means necessary" as they like to say. It was and still is useless to point out to them the likely future consequences of their preferred methods. "Slippery slope," they scoff; yet what is the entire gun control issue today but the result of a slide down a slippery slope made possible by progressive short-sightedness?

But if you are going to import the Bill of Rights into state law, then you are bound to honor the principle behind those rights. There is no need for any sophisticated balancing of right v right. The enumerated rights were intended as outright prohibitions on government action, whether such a prohibition would at all times be considered wise or not. The national government being a designedly limited government, the Founders did not actually have to think through the consequences of that prohibition applying to all levels of government nationwide. (Of course, according to our monstrous hindsight-driven tort law standards, the Founders would be found negligent, probably grossly negligent, for not having addressed the "reasonably foreseeable" likelihood that one day the 2A would be incorporated against the states).

So I see no need to make complex what is in fact simple. No data analysis is required. We will stipulate that guns are involved in many murders. We will decline to engage in quantifying or otherwise assessing those murders against the numerical value of self-defense. We will simply note that the Founders intended an absolute prohibition on national government action, and that intent is automatically incorporated against the states along with the text.

We might also consider adopting into our analytical framework a measure of more recent vintage--the "existential test." This standard for assessing the necessity for government action was enunciated by our 44th President when confronted with demands that the government act more aggressively to prevent Islam-inspired murders. We were advised that said murders did not pose an existential threat to our nation, so that more aggressive government action was uncalled for. Based on this very new and progressive-endorsed standard, the case for further regulation or prohibition of firearms appears to be quite weak.

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QET
on March 21, 2018 at 13:57:55 pm

The debate between the two groups is explicitly a debate about gun control, however underlying this parley is the inevitable conflict of the rights of the collective and the rights on the individual. This tension that exists between those in favor gun control and those in favor of the right to keep and bear arms is an exemplar of the internal conflict between the manifestations of the foundational rights of life, liberty, and the pursuit of happiness, and the external tension between the freedom of individual and the freedom of the collective….

A curious, and ironic, aspect of gun control debates: People often discuss the right to bear arms as an individual right, and the right to be free from gun violence as a collective right. But functionally, these dynamics are reversed.

Thanks to guns, the US would be a famously hard place for anyone to overrun. This arguably makes American society more stable. The circumstances under which that society would be conquered are hard to fathom, and the degree of resistance any occupying force would face would be large.

At what cost does American society achieve this social advantage of stability? At the cost of individual lives. We pile up our dead at a rate that astonishes and appalls the citizens of every other industrialized nation. We pay a tax for our stability—and the tax is imposed unevenly, in flagrant violation of due process of law.

In short, the collective benefit of living in a land that is basically unconquerable is paid for by a huge and unending violation of individual rights. Though our gun policies, we daily choose to sacrifice individuals in service of a social goal. The Communist Manifesto could not have designed a clearer outcome.

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nobody.really
on March 21, 2018 at 14:16:24 pm

I share Purdy’s enthusiasm for data-driven policy analysis. But were data is lacking, the law provides a substitute—called the burden of proof.

Typically the law asks the proponent of a policy to provide information supporting the policy. But sometimes the law permits that burden to be shifted. If, for example, a party prohibits access to data, the trier of fact can draw an inference that the data would support an outcome that is contrary to the party’s interest.

The final chapter of the research paper, “The Science of Gun Policy” observes that the US has invested vastly less in acquiring data regarding gun deaths than it has in investigating pretty much any other type of death. The study reports at pp. 310-11:

Federal funding for research on gun-related mortality is far below the levels for other sources of mortality in the United States. Stark and Shah (2017), for instance, found that federal gun violence research funding is just 1.6 percent the amount predicted based on federal funding for other leading causes of death. With this federal inattention comes a corresponding deficit in research: Stark and Shah (2017) also found that the volume of research publications on gun mortality was just 4.5 percent of what would be expected based on publication volume for other leading causes of mortality.

The federal government previously supported a more robust program of research examining firearm violence and policy. In the 1990s, the CDC was sponsoring millions of dollars of research on firearm violence, until researchers found that having a gun in the home was associated with an elevated risk of firearm homicide for members of the household. This finding was viewed by some as a one-sided attempt to manipulate the gun policy debate.
In an effort led by the National Rifle Association (Cagle and Martinez, 2004), a sufficient proportion of Congress was persuaded to adopt the Dickey Amendment in 1996, cutting $2.6 million of funding from the CDC, an amount equal to what its injury prevention center had been spending on gun violence research. The Dickey Amendment also introduced new language forbidding the CDC from advocating or promoting gun control. This language did not explicitly prohibit all research on gun violence or gun policy, but concern that any gun research could be viewed as advocacy has led the CDC to avoid supporting gun policy research lest it invite a budget adjustment like that in 1996 (Kellermann and Rivara, 2013).

Congress has included Dickey Amendment language in each CDC appropriations bill since 1996. Moreover, in 2012, similar language was added to an appropriations bill for the National Institutes of Health in the Consolidated Appropriations Act of 2012 (Pub. L. 112-74).

Research on firearm policy and violence prevention has since declined dramatically. According to a report by the advocacy organization Mayors Against Illegal Guns, by 2012, CDC funding of gun violence research had declined 96 percent since the mid-1990s, and academic publishing on gun violence fell 64 percent from 1998 to 2012 (Mayors Against Illegal Guns, 2013; Alcorn, 2016). Although comparable numbers of people die in car crashes and by firearm suicides and homicides, federal investment in traffic safety research funding is more than 270 times greater than in firearm violence research (Mayors Against Illegal Guns, 2013).

Now, if the NRA believed that research would reveal that gun control policies are useless, why would the NRA oppose conducting the research? The very fact that the NRA seeks to suppress this research is, by itself, testimony about the NRA’s belief about what the research would reveal.

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nobody.really
on March 21, 2018 at 15:15:15 pm

"...found that federal gun violence research funding is just 1.6 percent the amount predicted based on federal funding for other leading causes of death. "

What are we now going to protest against *study inequality*?
Why assume that all causes of injury / death MUST be allocated the proper proportionality?

"The very fact that the NRA seeks to suppress this research is, by itself, testimony about the NRA’s belief about what the research would reveal."

Come now, dear boy, are you now asserting that the Rand data is erroneous; or are you simply trying to malign the NRA. Absence of evidence, i.e. lack of *enough* studies, is not sufficient in itself to successfully color the motives of another party. Unless, of course, you believe that the following provides sufficient statistical proof to justify the diminution of one's 2A rights:

"In the 1990s, the CDC was sponsoring millions of dollars of research on firearm violence, until researchers found that having a gun in the home was associated with an elevated risk of firearm homicide for members of the household. This finding was viewed by some as a one-sided attempt to manipulate the gun policy debate."

What precisely does that mean? - "an elevated risk"? From what, 1 in 100,000 to 1.1 in 100,000? Let us remember that suicide is often included under gun homicide statistics in many studies. I suspect that if one were to conduct a study on the presence of opioids in the home, we would also find an "elevated risk"; of hammers? and kitchen knives?

Nope, that claim is not backed by the data - or rather, the data is insufficient to allow one to draw a proper conclusion on the assertion and more importantly - what is, or ought to be done about it?

Now i have to go tune-up my Abrams Tank that adorns my front yard.

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gabe
on March 21, 2018 at 17:34:17 pm

We have to remember that America doesn't have to be one large country with a uniform legal code like China. We can be several different countries with their own laws based on their own conceptions of liberty based on their values, like in Europe.

Just as Sweden, Britain, and Italy don't have the same conceptions of liberty, so they remain different countries that continue to trade with each other in peace. So California, Utah, and Pennsylvania could all be different countries that continue to trade with each other in peace.

Just as North Korea, Saudi Arabia, and South Africa will never share the same conceptions of liberty as America, so California and Texas will never share the same political culture.

That's why we allow people to immigrate, so they can go to the place where a majority share their political views, or at least flee from a country where a majority don't share their political views.

Muslims will never accept separation of church and state, progressives will never accept the right to keep and bear arms, and Chinese will never accept freedom of speech. So they live in different countries from Protestants (in the case of Muslims) and classical liberals (in the case of progressives).

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stickshexanhammerandsickle
on March 21, 2018 at 23:28:43 pm

Let us remember that suicide is often included under gun homicide statistics in many studies.

You are correct. One issue with Professor Purdy's proposal is that it seems to suggest that use of statistics and objective data will depoliticize discussions about gun control. This is wrong. While the data themselves may be objective and politically neutral, interpretation of them is not. These interpretations become political weapons and are as likely to support a dogma as they are an argument. To take a relevant example, interpretation of data regarding the races of those disciplined by schools has led to policies that are suspected of giving the Parkland shooter unconscionable leeway in expressing his psychological demons.

The main problem with discussions of firearm violence is that the process is hyper-politicized, and positions assessed according to political advantage. Each interest group thinks that their particular position should have priority in deriving solutions. this has destructive consequences, This is obvious in, for example, the failure of government agencies, either through poor policy, incompetence, misplaced priorities or otherwise that let, at a minimum, the Ft. Hood shooter, the Aurora theater shooter, the Virginia Tech shooter, the Pulse Nightclub shooter and the Parkland shooter evade the apparatus that should have stopped them. Yet, scrutiny of such failings is downplayed, so as not to distract from more politically desirable outcomes. Firearms rights activists want solutions that do not involve firearms; mental health advocates do not want to discuss solutions that may engender presumptions about the mentally ill; government officials do not want to have to make uncomfortable decisions that may lead to political peril. This approach is unhealthful and unhealthy. Firearms rights activists should consider what it would be like for an Aurora policeman to enter the dark Century 16 theater, not knowing how many gunmen were inside, or who or where they might be and try to sort out the good guys with a gun from the bad guy with a gun. Mental health advocates should consider that there is a sub-population that have traits that suggest a risk of mass murder, and that pretending otherwise has tragic consequences. Politicians should understand that the issues are not merely those of rights, but also of practicalities, unpopular virtues, and the limits of force.

The "gun debate" is somewhat unique in that it proceeds almost entirely in the setting of the Dunning Kruger effect. People who know nothing about firearms think they know everything about firearm policy. People who know nothing about mental health think they know how to prevent events that result largely from mental illness. People who know nothing about the role of self defense think they know everything about public safety. Lots of people are experts in what everyone else should give up or put up with.

There is a significant amount of willed ignorance surrounding mass killings. Once everyone has selected their hobbyhorse they just want to ride. On October 1, 2017, Stephen Paddock killed 58 people and wounded 851 others. This is well known. Four days later there was an incident in the Brazilian municipality of Janaúba. There are two fundamental questions:

1.) Are you aware of this incident? and
2.) If not, why not?

Who decides when something is outrageous enough to present for our attention? Is there nothing that the incident of October 5, 2017 could teach us about our policies, about who and what we get outraged about and what we think and feel when such events have no political value, but only effect because we are human?
Does it have nothing to teach us about those atrocities that, whether they involve a firearm or not, erupt in our midst? If it does, why doesn't everyone know about it? Why don't we discuss what caused it and what might be done about it?

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z9z99
on March 22, 2018 at 08:55:34 am

Federalism is a theory with definite appeal; indeed, this was the dominant policy regarding gun regulation until Heller.

But in that decision, the Court concluded that the nation needed a common concept of liberty regarding guns, and overturned conflicting state and local regulations. Which is also a theory with definite appeal--but, clearly, very different appeal.

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nobody.really
on March 22, 2018 at 10:25:38 am

Yep!

Here is a question:

Wasn't it inevitable, however, that the Court would ultimately be compelled to *incorporate* the Second Amendment as it had previously *selectively* incorporated other parts of the BOR?

How could they not?

It seems to me that Federalism died as soon as "incorporation" became the goal of SCOTUS and interestingly enough, it may be that 2A incorporation was destined once Footnote Four announced "fundamental rights"
How can the 2A not be fundamental?

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gabe
on March 22, 2018 at 10:46:00 am

1. No, courts have not found that the 14th Amendment's due process clause incorporates all of the Bill of Rights to be applied to the states. For example, I don't know of any court ruling that the 14th Amendment incorporates the 5th Amendment right to an indictment by a grand jury, or the 7th Amendment right to a jury trial in civil lawsuits.

2. Moreover, prior to Heller the 2d Amendment was widely read to restricted the fed's ability to disarm state militias. It was unclear that this amendment was intended to restrict a state's discretion to disarm its own militia, so it would have made no sense to incorporate it.

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nobody.really
on March 22, 2018 at 23:05:36 pm

"The debate between the two groups is explicitly a debate about gun control, however underlying this parley is the inevitable conflict of the rights of the collective and the rights on the individual."

This is a category error. The collective doesn't have rights - only individuals have rights. In particular, the State has no rights. Its only function is to protect the rights of individuals.

"There is no perfect solution to the problem of legitimately competing rights, and I propose no such solution"

Another category error. There are no legitimate competing rights. A right is the obligation of others to eschew interference in peaceful pursuits by others. If what you're doing isn't harming, or threatening to harm, others, you have the right to continue that pursuit. Further, where others are interfering with your peaceful pursuits, you have the privilege, right, and perhaps even the obligation, to end that interference with whatever means are available, necessary and sufficient.

"...as gun control measures are submitted to the American people, it is necessary to have a method to evaluate them, one that will avoid the emotionalism that animates rhetoric on both sides of this debate."

That's not hard at all. As the 2nd Amendment affirms, but does not create, the right of free citizens to bear arms is absolute. "Shall not be infringed" is crystalline.

I could continue, but frankly, legal empiricism is a sham, subject to the winds of change blowing through the judiciary, Congress and the electorate. It's pretty much the definition of democracy - two lions and a lamb discussing what to have for dinner.

However, the presentation of facts to persuade the hoplophobes that their case is weak is useful, so please, do continue with that.

Kurt

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Kurt
on March 23, 2018 at 13:10:19 pm

Understand your points of *emphasis* BUT to say that the 2A "was widely read" highlights only mid-20th century 2A jurisprudence and may not cover the entire historical record. Indeed, it has been argued that Scalia (and others) based their Heller decision upon that very historical record and original understanding and NOT the *widely read* version of later courts.

" It was unclear that this amendment was intended to restrict a state’s discretion to disarm its own militia, so it would have made no sense to incorporate it."

Agreed; yet the very same may be said for the P&I and EP clauses of the 14th - at least according to its principal author, Sen Bingham and supported by later Court decisions.
MY point was simply this: If the Black Robes could see fit to incorporate other elements of the BOR and succeeding amendments, why would they not then incorporate the 2A. And yep, it may be a stretch to use Footnote Four, as I doubt the Robed Ones actually contemplated this BUT the distinction "artifice" created by Footnote Four would seem to eventually induce the Court to recognize that the 2A is (and ought to be) *fundamental. There is nothing inconsistent in Heller with either the concept of incorporation or the aspirational impulse of Footnote four.

I'm jus sayin', brudda!!!

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gabe
on April 08, 2018 at 19:27:04 pm

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