Is the right to carry firearms established in Bruen the same kind of intellectual legerdemain the Court rejected in Dobbs?
Democracy and Distrust
Ballooning scandals at the IRS, government snooping, and the run on ammunition are the main topics of conversation at the range these days. It’s illuminating to hear people outside the chattering class talk about checks and balances, ammo shortages as a barometer of discontent and looming tyranny. Tyranny especially, used to be the cry of black helicopter conspiracy theorists. It signals something when regular folk, will say the word and talk unselfconsciously about how to define it and what to do about it. Although worries about tyranny run through the Second Amendment they were submerged in D.C. v Heller. There the Supreme Court emphasized the individual self-defense component of the preexisting right to arms, and backed into tyranny by explaining how concern about arming the militia of the whole fueled the codification of the existing right to arms. The Second Amendment preserves the militia of the whole – i.e. the armed citizenry – partly as a check against tyranny.
But how, in our mature republic, do we define tyranny? Judge Alex Kozinski, a clear thinker from the Ninth Circuit, says this. “The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”
Put that way, tyranny seems a bit too grand to describe the government shenanigans now occupying the news. But that does not mean there is no reason to worry.
Our system is built on the principle that it is wise and proper to distrust state power, way before it comes to tyranny. Our constitution enshrines this theme by diluting power, separating it into components and devolving it out to state and local governments. Many people care little about these power limiting principles, and complain that they are a burden to “getting things done”. The massive regulatory state they say is an essential fact of life.
Maybe so. But that does not diminish the reasons for distrusting the state. To the contrary. It actually enhances them. And it generates more pedestrian grounds for distrust that everyone should appreciate.
Consider the administration’s reaction to the unfolding IRS scandal. The President’s explanation/excuse, at least the one made for him, is that the federal government is so vast that is impossible for the boss really to know what is going on. Many disbelieve this, and are now making the case that the IRS policy of going after conservatives was a quite natural outgrowth of the administration’s unsubstantiated intimations of wrong doing by people with different views. We will see how that plays out.
But let’s not lose sight of the initial excuse, because it raises an illuminating question. What do you call a big, extraordinarily powerful thing – so large, that the guy in charge can’t really control it? The answer is “hazard”.
We do not embrace hazards. We quite naturally fear them. Some will object that fear is too strong here. Replace fear with distrust if you like. And softer still, consider simply how our hulking regulatory state, invites worries about the pedestrian sins of hubris and incompetence.
Hubris thrives when politicians are on the stump, proposing to fix a whole new set of things, or fixing some earlier fixes that didn’t quite work. They make grand promises to do what everyone really knows cannot be done. We expect this during campaign season and hopefully discount it.
But campaign hubris carries massive inertia that infects serious work of legislating. In the firearms context, this hubris is evident in policies that say if you give us more authority, we can keep you safe. Many people embrace this as one of the basic expectations of civilization. This is what the state ought to do. But the state has never been the exclusive answer here.
Consider a parallel theme that no one yet has attempted to refute. Our principles of self-defense confirm that within some window of imminent threats, the state is structurally incompetent. This is an area where as a matter of physics government cannot act. It is remarkable then, how often public officials simply ignore this disability, talking only about public solutions and ignoring the vital role of individual self-help. (Equally remarkable is how many people are willing to depend solely on the state to for personal security even though they would consider it pure folly to rely on the state for lesser things like economic well-being.)
The most charitable explanation for policy makers who exhibit this brand of hubris is the affliction that Ross Perot criticized back in 1992 with the quip that Washington is filled with people who think that “if they said it, it means that they did it.” The upshot is that state hubris – the habit of the political class to overpromise and under deliver – counsels distrust.
Intertwined with government hubris is shameless incompetence. This is demonstrated regularly on CSPAN, though it is often appreciated only by people who know the details of the often plausible sounding pontifications from the floor of the house and senate. But when you think about it, who could possibly know what one really needs to know in order to make sound decisions about the massive pile of things Congress attempts to control.
On gun issues this incompetence is illustrated by the work of two supposed congressional leaders on firearms policy – legislators whose statements about the things they propose to regulate leave one thinking… well, you make up your own mind.
First is Carolyn McCarthy who demonstrated that neither outrage or grief are a substitute for knowledge and sound thinking in an interview where Tucker Carlson probed her reasons for proposing legislation to ban “barrel shrouds”. He started by asking her what they were. She evaded, stumbled and then guessed, “I believe it’s a shoulder thing that goes up”.
Worse perhaps, is representative Diana DeGette of Colorado who recently explained the logic of banning detachable box magazines this way. “What’s the efficacy of banning these magazine clips? I will tell you that these are ammunition. They’re bullets. So the people that have these now, they’re going to shoot them. If you ban them in the future, the number these high-capacity magazines is going to decreased dramatically over time because the bullets will have been shot there won’t be any more available.”
Some savvy media sleuth discerned that this was just silly, and extracted a follow-up from the Congresswoman’s office, explaining, “The congresswoman has been working on the high-capacity assault magazine ban for years[emphasis mine] and has been deeply involved in the issue; she simply misspoke in referring to ‘magazines’ when she should have referred to ‘clips’ which cannot be reused because they don’t have a feeding mechanism.” Ahhh … ok.
Smart people cast worried glances when Jesse Jackson was running for president back in the 80’s and started talking about “ozones” in a way that demonstrated his belief that the regulated air pollutant was some kind of endangered species. Many of those people loved Jesse, but his gaff signaled that he couldn’t be taken seriously on the important progressive issue of environmental protection. Maybe smart people are now bemoaning the demonstrated ignorance of legislators who would lead the charge on firearms policy. But that assumes people think that the details actually matter.
Many people don’t care about the details of such things because, as I discussed in my last post, their actual agenda is different, broader that what they are saying. That’s just the way it is with supply controls. Representative McCarthy, didn’t know what a barrel shroud was, because like others renditions of the bad gun formula, it’s a meaningless distinction. Banning “dangerous” guns means really means banning all of them. It’s just you can’t say that out loud right now.
Still, wouldn’t it pay to put up a better front? You would think that spokeswomen for the bad gun formula would at least avoid absurdities that illuminate their broader unspoken agenda. The failure on this score is explained by the broader reasons that we properly distrust the state.
With their hands in so many things, even the geniuses in Washington have a hard time maintaining a basic level of competence on countless things they propose to regulate. And for the lesser souls, even on things that they really seem to care about … well, see above.