Random Thoughts on the Second Amendment
If you follow me on Twitter, you will see I have been in the trenches for the last few days defending the second amendment against those who would leave me unable to defend myself and my wife. And yeah, I take it personally. So I thought I would share a few thoughts and knock down some common arguments I have heard against the right to bear arms in addition to my thoughts the other day.

1. Anyone who talks about the Second Amendment in terms of hunting is missing the point. Do you really think the founding fathers would have enshrined the right to hunt in the Constitution? In places where hunting was a matter of survival, there was no need for constitutional protection because no politician would be fool enough to ban it any more than anyone would ban the drinking of ordinary water. In places where it was not necessary for surival, it was too trifling a matter to constitutionalize. The founding fathers had just finished throwing off the shackles of British tyranny and they didn’t do so with sternly worded letters; they did it with guns.

Seriously, the founders believed that one had a God-given right to rebel against tyranny. The Seal of Virginia glorifies the killing of dictators. How do you expect for that to happen without guns?

Big picture, I have long referred to the First and Second Amendments as the rights of rebellion. The founding fathers believed in a moral, but not legal, right to rebel. The doctrine is enshrined in our Declaration of Independence.

But at the same time, no government can legalize its own destruction. There is no legal right to secede or rebel. It is not workable. So one can only appeal to the moral right of rebellion if the government has become tyrannical. And the founding fathers did believe this could happen here. As Franklin quipped, this is a republic, if we can keep it.

But in my opinion the founders did the next best thing. Think about it. If tyranny should arise, we have the right to speak and print to warn people, to call people to arms. We have the right to assemble. And we have the right arm that crowd...

In short we have a have a right to raise an army and arm it. All of that is legal. It is simply that the moment the assembly becomes violent (remember it is a right to peaceable assembly), that it becomes illegal. In other words, preparation for rebellion is legal; but the act of rebellion is illegal and you will have to make the appeal to heaven for the righteousness of it as our founders did in 1776.

Which is not to say that we will need to rebel anytime soon. As I said to someone just this morning, I don’t expect this to happen even once in my lifetime. But as Kozinsky said in my last post, this is a doomsday provision, a last resort to be use in extremis and we cannot afford to meet that situation unprepared—i.e. unarmed.

Incidentally, even the part of the First Amendment that concerns itself with Freedom of Religion might be in part about securing the right of rebellion. As my Constitutional hero Thaddeus Stevens pointed out, tyrants often used religious suppression as a cover for political suppression. If you were a political opponent of the king, and he was Catholic and you were a Protestant, it served as a ready excuse to suppress you.

2. The Battles of Lexington and Concord were prompted by an attempt by the British to take away our arms. Those of us playing Assassin’s Creed 3 were recently reminded of this fact. See? Video games are useful after all!

3. The fact that no one has attempted to overthrow democracy from within, in America, is not proof we don’t need the Second Amendment; it is proof it is working. Like I have repeatedly said, one of the purposes of the Second Amendment is to protect all of the other amendments. And a common response to that argument is that in 200+ years under our Constitution, no serious attempt at creating a dictatorship has ever been tried. I mean okay, maybe Aaron Burr was up to that (maybe, his exactly plans were pretty murky), and there was a brief danger that the military would bully Congress that George Washington famously diffused that could have led to a military junta if Washington hadn’t acted, but by and large no one has tried to make anyone dictator of America or anything horrible like that.

But there is a chicken and egg problem to that argument. Certainly if anyone has the impulse to become Generalissimo of America, they have to recognize that 1) it isn’t likely to work if only because we will rise up against that and 2) he or she is not likely to survive the attempt. So just as more guns lead to less crime, more guns not only protects you in case someone attempts to overthrow the republic as they did in Rome, but it discourages the attempt.

4. Liberals, please stop saying that the Second Amendment is limited to the technology of the times. How many times do I hear liberals say the Second Amendment only applies to muskets? This is particularly funny in one case because the person also maintained that the First Amendment applied to video games. Hey, the founding fathers played Pong, right?

Mind you, I am not putting down the idea of applying the First Amendment or any other part of the Constitution to modern technology. The First Amendment applies to movies, television, radio, CD’s, mp3 players, smart phones, the internet, telegraph and video games and anything else I might have left out of that sort. I think the Fifth Amendment demands that if a man is accused of rape and semen is found at the scene, that DNA testing must be performed. I believe the Federal Government has a right to create an Air Force even though there is nothing about it in the Constitution. And I believe that the Second Amendment is not frozen in the technology of the time in which it was written. That is why it guarantees a right to bear “arms” and not “muskets.”

On the other hand, I don’t take this as a right of an individual to keep and bear a nuclear weapon. It’s not that a nuke isn’t an “arm.” It plainly is. But I do believe in a reasonable limiting principle of constitutional interpretation. The Supreme Court enunciated it in Dartmouth College v. Woodward. The court was discussing whether the Contracts Clause applied to school charters and the Supreme Court ruled that it did. And in doing so it had to ask whether a charter was a “contract” within the meaning of the Constitution against the objection that the Founders never considered that it might apply to that. The Supreme Court brushed that objection aside, declaring that:

It is not enough to say, that this particular case was not in the mind of the convention, when the article was framed, nor of the American people, when it was adopted. It is necessary to go further, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction, so obviously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in making it an exception.

So you have a two tiered test. The first is if you can show that if the founders realized the implications of their words they would have gone and changed what they were writing to exclude it in some fashion. Failing that, if applying the rule is either absurd or mischievous or otherwise undermines the rest of the Constitution, then the courts can carve out an exception

I think a purported right to bear nuclear weapons falls within both tests. I think if you went back in time to the founding and (after successfully convincing them you are actually from the future) you explained to the founders about nuclear weapons, they are extremely likely to have tacked on “except nuclear weapons” somewhere in the Second Amendment.

And even if they wouldn’t, a right to bear nukes does undermine democracy itself and thus is “repugnant to the general spirit” of the Constitution. If a man can build a nuke in downtown Manhattan and threaten to detonate it if he doesn’t get a harem of college cheerleaders or perhaps something more reasonable, like a 32 oz. slurpee, if a man can hold a whole city hostage this way, this is a threat to democracy itself. So I believe the courts are justified in carving out a nuclear exception to the term “arms.”

But I will add that often the very same people who believe I should not be able to own a gun don’t seem terribly worried about Iran having a nuke. Everyone believes that guns should be kept out of the hands of criminals and nutcases. Isn’t the government of Iran both?

5. Historically governments have taken guns away from groups they hated. Did you know that the English have a Bill of Rights? Indeed I suspect many of you educated in America didn’t know this, nor did you know that the British had their own revolution.

If I can go off on a tangent (and since it is my blog, I can), this is a bit of ignored history in America, and I suspect in England, too. The English had their own revolution, called The Glorious Revolution of 1688 where they ran out their king, briefly became a dictatorship and then settled into something close to their current system where parliament runs the show in reality, and the king is largely a figurehead. And in that revolution there are two documents that justified their action: John Locke’s Second Treatise on Government and the English Bill of Rights.

Anyone who reads Locke’s book and the English Bill of Rights, and looks toward our Declaration of Independence and our Bill of Rights will get a sense of deja vous. It’s very much like our founders placed those British documents in a blender and then reassembled them. For instance, the famous preamble to the American Declaration of Independence reads like a Cliff’s Notes version of Locke’s book. Indeed I once ran a “compare documents” function in Word using copies of both and virtually every word in the Declaration of Independence is taken from Locke, with only a few really notable exceptions.

Meanwhile, the English Bill of Rights is divided into two parts. The first is a list of grievances against the King justifying running him out of the country, and the second is a list of rights this newly freed England would guarantee. And if you read the list of grievances, you realize that the founding fathers in America were very intentionally aping the style of their English forefathers, when writing out their list of grievances in the Declaration of Independence.

All of this leads one to a revelation about the founders of America. What they were really doing, in writing their Declaration of Independence, was taking the principles of the Glorious Revolution of 1688 and throwing it back in the faces of those in England who revered that prior revolution. They were saying, “you rightly rebelled against the crown in 1688, but you are as tyrannical over us as the king was over you.”

This leads one to discover the dirty secret of the success of our revolution. We didn’t win the war by kicking the English’s collective behinds, and our greatest ally was not the French. We won the Revolution by convincing the British we were right. This is why, for instance, the Revolutionaries called themselves Whigs and the loyalists Tories; that was the name of the two dominant political parties at the time in England, and the Whigs were associated with the Glorious Revolution and tended to recognize the justice of our cause, and the Tories did not. Our greatest allies, during the Revolution, therefore, was not the nation of France, but the English who decided we had the right of it.

(This also explains why the Federalist party believed in an alliance with England. It was not due to a love of British tyranny, but because they recognized that only half of the country was our enemy during the Revolution.)

Which is all tangential to the point I was getting to, which is to talk about the second half of the English Bill of Rights, which reads very much like the American Bill of Rights, prohibiting the English government from various abuses of power. For instance, it states “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;” which is virtually identical to our Eighth Amendment which states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Aside from an extra “that” and changing “ought” to the more commanding “shall” they are the same.

Of course the crucial difference between the English Bill of Rights and the American one is that the English Bill of Rights was simply that: a bill. It was just another law, which could be undone by passing another law and has been so undone. By comparison, the American Bill of Rights is part of a Constitution that cannot be easily changed.

Anyway, circling around to my point, buried in the English Bill of Rights is their version of the Second Amendment: “That the subjects which are Protestants may have arms for their defence [sic] suitable to their conditions and as allowed by law[.]” As I joked repeatedly on Twitter, this is surely done because they liked Catholics better than Protestants, right?

And of course that is not the case. The fathers of the Glorious Revolution were infected with some anti-Catholic bigotry, which is why they included that limitation.

Likewise, in the American South after the Civil War the KKK and the Red Shirts and like-minded organizations set about making sure black people were disarmed using means that were formally legal and otherwise (the KKK was a terrorist organization, after all). This was not done for their benefit but so they could be more easily reduced to a state barely distinguishable from slavery—indeed often so they could be literally returned to slavery.*

Which kind of bleeds into my next point...

6. You can’t always trust the government to defend you. First, let us recognize a long and sad history of the unequal protection of the law by law enforcement, particularly aimed at African Americans and other minorities. The evidence that the police can be infected with racism is rifle and championed primarily by prominent liberals. For instance, Public Enemy once decried the alleged slowness of emergency response in black communities by declaring that 911’s a Joke. I don’t know if it is true or not, but how does one argue that simultaneously the cops don’t care as much about protecting your life and property while claiming that no one should be able to protect your life and property but the same police? I wonder if Al Sharpton will answer that question.

And of course that ignores the history of police brutality and racist violence by the police. I think it is particularly hard to explain to Rodney King why he should trust the police to protect his life...

Yeah, I am sorry if I part ways with my conservative brethren on that, but there is no justification for all of what you see in that video. And while I don’t endorse riots, I understand the deep frustration that drove them. They were saying, “we got it on video and you still won’t do anything about it?”

Yeah, I can’t relate to that at all.

And while I am fully convinced that OJ Simpson killed Nicole Brown Simpson and Ron Goldman, I am equally convinced that Mark Fuhrman was racist as all get out, and screwed up that prosecution as a result. So why should your safety be left solely in the hands of someone who might hate you for the color of your skin?

Now in all of that I don’t want to sound like I think the police are all evil or anything like that. I believe the vast majority of the police are good and honorable people who strive to provide the best protection for all of the citizens under their watch. But it has to be remembered, sometimes the police are bad or negligent.. Consider for instance the facts in the case of Castle Rock v. Gonzales.

The Supreme Court held in that case that even if the woman could establish that the police failed to enforce the TRO, that they were under no obligation to enforce it and thus she couldn’t sue them. Which I think is the wrong decision, but it means as a matter of law, the police don’t have to protect you. And in Ms. Gonzales’ case that is exactly what appears to have happened.

And even if the police are being as diligent as they can be, you still can’t one hundred percent depend on them. First it is a cliché to say that when seconds count the police are minutes away, because it is true. The average police response time is six minutes, during which a lot of evil can happen. Second, even when you feel rightfully threatened by someone, there can be problems with proof. If a person threatens you, but it is solely your word against his, the courts might not believe you. And of course there are situations where you know a person is dangerous but they have not been stupid enough to make an actionable threat.

Like I said most cops do their best, but they can’t be everywhere and see and hear everything, nor do I think most people would want them to. So there will always be a gap, a space where the law is not able to reach, where you have no choice but to defend yourself. And that leads to my next point.

7. A gun is a great equalizer. Back in my Patterico days I wrote a post about disabilities and gun ownership. Let me quote from that extensively:

And gun ownership by the handicapped also taps into another big philosophical belief I have about the handicapped. In a very real way, humanity is the disabled species. Think about it. Compared to other species, we are slow, weak, blind and deaf; we have little sense of smell, our teeth and “claws” are weak, etc. If left naked in the wild we would be easy supper for the other animals out there. And yet we dominate the planet for one simple reason: our brains. And those brains have allowed us to create tools that in turn makes up for our deficiencies. So we can’t run as fast as a cheetah, but we invented motor cars that allowed us to move even faster and for long periods of time. We can’t see like an eagle, so we invented the telescope and can see things no other creature can. Our brains haven’t just leveled the playing field between animal and man, but in fact gave us a critical advantage over them which is why we rule this planet and no longer have any natural predator (except ourselves).

And in no area has our brains been more critical in making up for our physical deficiencies than in combat. Now we might suspect a few tough souls like Chuck Norris or Todd Palin** could take on a grizzly bear with their bare hands, but for most of us, if we don’t have a gun we are SOL (and from my understanding, even with a gun they are hard to kill). Our only option is to run.

So to tell a disabled person that they can’t use artificial help goes directly against the grain of what we have done as humans. For instance, I have difficulty writing by hand. But it only affects my ability to write by hand, so I buy a computer and I am rendered “normal.”

Likewise, Mr. Boyd has cerebral palsy. I have known people with that condition and it almost certainly impairs his ability to win a fistfight. I’m not saying he can’t do it, but it’s almost certainly harder. Now, the anti-gun approach would tell him tough and that he would just have to remain defenseless and hope that if someone attacks him that he cops get there in time. But the second amendment allows him to say, “screw that,” and defend his own life and safety as need be.

Now yes, obviously there are some disabilities that make it unacceptably dangerous to carry a gun. We should at all times be reasonable about this and I expect as Mr. Boyd writes about this as promised, he will describe how he and others can safely operate a gun. And I would be surprised if a blind man can ever safely operate a gun. But at the same time we shouldn’t be too quick to assume a person should not own a gun.

Likewise, the same can be said for women facing down their attackers. Now I am enough of a egalitarian to believe that there are women who can beat a man in a fistfight. But let’s face it, it takes an unusually weak man or an unusually strong woman to do it. The average woman doesn’t have much of a chance. Even if a woman has a knife and the man has bare hands, one needs strength to drive a knife into another and women would still have a hard time fighting back.

But if you put a gun in her hand, and her chances get much better. You make sure she is well trained in their use, and they improve even more so.

This applies particularly to the subject of abused women. First as I noted before, most wife- and girlfriend-beating takes place in private, where the only witnesses are the victim and the perpetrator. So there is a proof problem involved in such cases. And even if you gather enough proof to get a restraining order, they don’t usually stop the abuser. Which is not to say an abused woman shouldn’t get restraining orders; they provide useful legal clarity should an altercation occur and they do occasionally deter the pig. But they aren’t some kind of magic force field that will save most women from an abusive ex. And a gun is no guarantee of their safety either; but it gives them a fighting chance.

On a related note, many liberals say that gun ownership should be limited to revolvers and not allow for semi-automatics that use clips. These are people who have apparently never fired a gun. In all bluntness, my wife has tried both and she is physically incapable of firing a revolver with any kind of accuracy. This is because a revolver requires more hand strength than a semi-automatic. As a result you have to squeeze the gun harder to pull the trigger and thus it is harder to keep it steady as you do. But she is a great shot when using our semi-automatic. :-) The same can probably be said for those with certain handicaps.

And even if you are a burly man, and don’t have compassion for those who are weaker who would like to defend themselves, too, let’s not forget that you can be outnumbered. If four men are breaking into your home, I don’t care how strong you are, you are not likely to win that fight without a gun. And that is assuming they are unarmed.

Indeed this possibility deflates the argument that you will never need a so-called assault rifle for self-defense. Liberals often argue that such weapons are only designed to kill large numbers of people, as though it is impossible to need to defend yourself against a large number of people. If four criminals are trying to break into your home, and they are armed, an assault rifle might be the difference between life and death.

8. Finally, it is the anti-gun left that is paranoid, not the pro-gun right. The left loves the demonize gun owners as just a bunch of crazies sitting in their basements ruminating on black helicopters and the like. But as I outlined above, there are many rational reasons to believe that individuals should be armed to defend themselves and as a rule I found my fellow gun owners to be imminently rational.

“We don’t want the wild west” is a frequent refrain by liberals. The irony is that the wild west was not what most people imagine. As Cracked demonstrates in a gloriously deflating article the west was not really that violent at all:

The Insanity:

A gloriously mustached man sits at a card game in an old saloon, surrounded by cowboys and surprisingly fresh-faced prostitutes. He looks up, and notices that the player opposite him is hiding an extra card up his sleeve. He calls him on it, the word yellow is pronounced as 'yeller,' and pretty soon they're facing off in the city square. There's a long moment before the cheater moves for his hip holster, but he's not fast enough. Quick as lightning, the gambler draws his revolver and shoots the cheat dead between the eyes.

The cowboys and prostitutes go back to their drinks, well-accustomed to this sort of random violence, as the man nonchalantly twirls his pistol and says: "Guess he couldn't read my poker face."

A hundred years of Westerns have taught us that this is how you lived and died in the Wild West. The quicker draw lived to gun-fight another day. It was essentially a roving single elimination rock, paper, scissors tournament that didn't end until you were dead.

But in Reality...

How many murders do you suppose these old western towns saw a year? Let's say the bloodiest, gun-slingingest of the famous cattle towns with the cowboys doing quick-draws at high noon every other day. A hundred? More?

How about five? That was the most murders any old-west town saw in any one year. Ever. Most towns averaged about 1.5 murders a year, and not all of those were shooting. You were way more likely to be murdered in Baltimore in 2008 than you were in Tombstone in 1881, the year of the famous gunfight at the OK Corral (body count: three) and the town's most violent year ever.

Sorry to break it to you folks, but pretty much every western you have ever seen is full of it. The article goes on to explain why we believe it and the short version is it started because, as Johnny Rotten once said, “tourists have money”—that is towns discovered that gullible tourists loved to hear those stories. It was an early civic version of gangsta rap, which I am convinced is equally full of crap.**

And then we continued to believe it, because as a fantasy it is frakking cool. Seriously, look at that picture on the right! Even decades later, that is just plain cool.

But as a reality there is simply no way people would have allowed things to be so continuously out of hand. It’s fun to play in the world of Red Dead Redemption, but it wouldn’t be fun to live there and thinking that world is realistic is as silly as believing Grand Theft Auto--where you can kill twenty cops and only pay a fine if you are caught--is true-to-life.

But it all reflects a deep paranoia on the part of the left. If we all have guns we are going to shoot each other over stupid crap, just like in those really cool Clint Eastwood movies. On a similar note, I have pointed out several times that if people are armed they might stop such massacres very early on and save dozens of lives. That seems to be a no-brainer to me, but this has actually led some liberals to argue that ordinary people having guns would have made things more dangerous to innocent bystanders, because ordinary citizens would fire recklessly or something.

I think that regular people, if they are armed, will generally only draw their weapon when they have a rational reason to fear for their lives or the lives of others. I think that they will generally only fire if they are left with no choice, and I think that they will generally take care that they only hit their intended target. I expect them to practice with and maintain any guns they own. On the other hand, many on the anti-gun left believe that ordinary people will generally start killing people at the slightest provocation, will shoot when unjustified and will not take the care to make sure they hit only what they intend to. Who exactly are the paranoid ones?

A while back I wrote about the depressing real life heroism we saw at the Ft. Hood, which was, ridiculously, a gun-free zone. We might also remember Victoria Soto, one of the true heroes of Sandy Hook, another gun-free-zone. Let’s let her sister describe what she did:

It came as no surprise to Carlee and Victoria’s mom that her daughter died trying to save kids.

“She was truly selfless,” Donna Soto said of her 27-year-old “Vicki,” who was shot trying to shield her first-graders from madman Adam Lanza’s assault.

Vicki ushered her tiny charges away from the door of Classroom 10 as Lanza, 20, descended. She ordered them into a closet, but six of the panicked kids got out — and Vicki dived to save them as Lanza trained his rifle on them. They all died.

“She would not hesitate to think to save anyone else before herself and especially children,” Soto’s mom told CNN. “She loved them more than life, and she would definitely put herself in front of them any day, any day, and for any reason.”

“So it doesn’t surprise anyone that knows Vicki that she did this.”

You should indeed read the whole thing and pay tribute to her bravery. But I can’t help thinking to myself, imagine if she had a gun and knew how to use it. Run that scenario through again. Maybe she could have shot back. Maybe we wouldn’t be praising her for dying for her kids, but for ending the rampage or at least making him back off and finding an easier target. And maybe the honors we are rightfully pouring on her would not have been posthumous.

Or maybe we don’t have to speculate. Consider as a counter-example, the shooting at a theater in San Antonio on Sunday night. Liberals cited this as another example of why we need to prohibit guns, but Sooper Mexican caught the real story with this superbly written headline: “Crazed Gunman Stopped from Movie Massacre by ‘Gun-Free Zone’ Sign... Oh wait. No, a woman SHOT him.” You can read what he wrote about it, here but by all indications it appears that another serious massacre was about to occur when the gunman was shot.

Which is not to say good people with guns will never be shot. Of course sometimes they will be taken by surprise, or just won’t be as good as their opponents. But having a gun at least gives them a fighting chance. Victoria Soto didn’t have that, so all she could do is try to shield her students with her own body. It’s heroic, but it might not have been necessary if her state allowed her to keep a gun in school.