That’s the title of a new article in the Columbia Law Review (the link is just to an abstract, since no PDF is available). The law review asked me whether I could write a commentary for its online supplement (the Sidebar), and I did, here, under the title The First and Second Amendments; the author’s response to my response is here. Here’s the text of my article (for the footnotes, see the version I link to above):
I. The Supposed Analogy to Obscenity Analogies between the First Amendment and the Second (and comparable state constitutional protections) are over 200 years old. District of Columbia v. Heller itself makes them, and they can often make sense.
Such analogies might, for instance, yield the conclusion that (1) most guns (like most speech) are fully protected by the Second Amendment, subject to some restrictions that leave open “ample alternative channels” for effective self-defense, but (2) some narrow categories of valueless or marginal weapons (like some speech) are unprotected. Distinctions between the two Amendments can make sense, too, though I leave them for other articles.
But Guns as Smut does something peculiar: It analogizes a core category of private arms to one of the least protected and marginal categories of speech (obscenity). It’s hard to see any justification for such an analogy, other than a purely instrumental one.
The premise of the First Amendment’s obscenity jurisprudence is that obscenity is historically recognized as one of the “limited areas” of speech that “lack any serious literary, artistic, political, or scientific value,” and are thus “not protected by the First Amendment.” Obscenity, at home or elsewhere, is a marginal category of speech that lacks the full protection that most speech gets. Because of this, selling, buying, and possessing obscenity in public places can be outlawed, and long has been outlawed. Only the special “solicitude to protect the privacies of the life within [the home]” leads to the prohibition on punishment for mere home possession of obscenity.
None of this analysis applies to guns. Possessing guns is traditionally legal. Guns do serve the self-defense value that the Court has found to be embodied in the Second Amendment. And, Heller held, ordinary guns are at the core of “arms,” not on the margin.
Even carrying guns in public places is traditionally legal (though often with license requirements), and serves the constitutional value of armed self-defense. But I need not rely on that: The premise of the Court’s obscenity decisions is that obscenity lacks constitutional value without regard to the place in which it may be present, though it may not be suppressed via intrusions into the home. That premise does not extend to private gun ownership under Heller.
And naturally Guns as Smut’s unsound premise leads to unsound results. If guns were really like obscenity, the government would be free to ban the buying of guns and not just their public possession. Guns as Smut’s conclusion indeed suggests that it “remain[s] unresolved” whether the government could “so restrict[] the commercial availability of guns that only guns in situ in the home, or those made by enterprising amateur gunsmiths, would be beyond regulation”; the Article’s interpretation of Heller “will not, and cannot, provide [an] answer[]” to that question.
Yet Heller expressly holds that the Second Amendment secures an individual right to possess handguns “for the core lawful purpose of self-defense.” Whatever such a right might mean, it must include the right to accomplish that core lawful purpose by acquiring the handgun. No sensible interpretation of Heller can leave the status of that right “unresolved.” And no sensible analogy between the Second and First Amendments can analogize typical privately owned arms to material that the Court has expressly held lacks First Amendment value.
II. The Supposed Analogy to Other Constitutional Rights Guns as Smut also claims that limiting the Second Amendment to the home is supported by a special role for the home “located . . . in ‘the Bill of Rights as a whole.’” Yet most of the rights to which the Article points as support for that proposition apply outside the home as well.
Warren and Brandeis’s (nonconstitutional) “right of determining, ordinarily, to what extent [a person’s] thoughts, sentiments and emotions shall be communicated to others,” a right lost “only when the author himself communicates his production to the public,” isn’t about the home: It would apply equally to thoughts communicated privately outside the home as to those communicated within it. The right “to educate one’s children” is usually exercised outside the home (including in the very cases the Article cites, Pierce v. Society of Sisters and Meyer v. Nebraska). The right to decide “whether and when to have a family” is exercised partly by getting contraceptives (or having abortions) outside the home, again including in one of the very cases the Article cites, Eisenstadt v. Baird. Though the Fourth Amendment has been read as giving extra protection in the home, dozens of cases make clear that it provides substantial protection outside the home as well.
Guns as Smut returns to the Fourth Amendment late in the Article, pointing out how convenient a home-only Second Amendment would be for legislators who wouldn’t have to deal with any possible “fact intensive, arbitrary, and incomprehensible [Second Amendment] doctrine akin to Fourth Amendment search and seizure jurisprudence.” Yes, radically limiting the scope of any constitutional constraint would be convenient for legislators and courts. But fortunately, such a radical limitation (“privacy as smut”?) has not happened with the Fourth Amendment. Despite the difficulties of articulating Fourth Amendment doctrine outside the home, and despite the Amendment’s textual reference to “homes,” courts have not thrown up their hands and concluded that freedom from unreasonable searches and seizures should only cover the home.
Two rights do indeed apply only within the home, or similar places. Guns as Smut points to the Third Amendment, but that Amendment is textually limited to “house[s].” The Article also points to the right to consensual sexual activity, but this just illustrates why analogies between constitutional rights, while often helpful, are often limited. A ban on public sexual activity is, for nearly all people, a modest burden on the right, because it leaves people free to shift to a private place. At most, it makes sex slightly less convenient and less spontaneous. (Exhibitionists might see the restriction as burdensome, but the law doesn’t treat such unusual tastes as deserving of accommodation.)
But self-defense can’t be shifted to a more convenient time or location. You can’t invite a robber back to your place, where you might have a gun available to defend against him, the way you can invite a lover to your place to have sex. To borrow from the First Amendment’s “time, place, and manner restrictions” doctrine, a ban on public sex leaves open “ample alternative channels” through which one can derive the benefit of the right — develop relationships, beget children, and enjoy sex. A ban on public possession of arms does not leave open ample channels to defend oneself when the need arises.
III. The Supposed Historical Arguments for Limiting Gun Rights to the Home Guns as Smut likewise errs in its arguments that the right has historically been seen as limited to the home. To take one example, the Article argues that “Blackstone lumped low or no-value speech acts and the public carrying of firearms in the very same category in his Commentaries: Libel and ‘challenges to fight’ fall just behind riot, unlawful hunting, and ‘riding or going armed, with dangerous or unusual weapons’ as offenses to the public peace.”
Blackstone, though, was writing a brief summary of the Statute of Northampton, which he rendered as “[t]he offense of riding or going armed with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land.” And the Statute was understood by the Framers as covering only those circumstances where carrying of arms was unusual and therefore terrifying.
Thus, Justice James Wilson — a leading drafter of the U.S. Constitution, and the first prominent American legal commentator — described the prohibition as covering “a man arm[ing] himself with dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour among the people.” This was a nearly literal quote from the leading English commentator Serjeant Hawkins, who also went on,
[N]o wearing of arms is within the meaning of this statute, unless it be accompanied with such circumstances as are apt to terrify the people; from whence it seems clearly to follow, That persons of quality are in no danger of offending against this statute by wearing common weapons . . . for their ornament or defence, in such places, and upon such occasions, in which it is the common fashion to make use of them, without causing the least suspicion of an intention to commit any act of violence or disturbance of the peace. And from the same ground it also follows, That persons armed with privy coats of mail, to the intent to defend themselves, against their adversaries, are not within the meaning of this statute, because they do nothing in terrorem populi.
American benchbooks for justices of the peace echoed this, citing Hawkins, though of course any class-based limitation to “persons of quality” could no longer be sustained. Only public carrying “accompanied with such circumstances as are apt to terrify the people” was thus seen as prohibited; “wearing common weapons” in “the common fashion” was legal. And this is consistent with the pre-Civil-War American legal practice of treating open carrying of weapons as not only legal but constitutionally protected.
IV. Public Gun Possession as Threat to Public Debate? Guns as Smut also argues that “the presence of a gun in public has the effect of chilling or distorting . . . public deliberation and interchange. . . . [E]veryone is deterred from free-flowing democratic deliberation if each person risks violence from a particularly sensitive fellow-citizen who might take offense.”
This is an intriguing speculation. One could also engage in the intriguing rival speculation that people’s ability to defend themselves may support public interchange, by assuring minority speakers that they can protect themselves against violent suppression. Private gun ownership was sometimes used this way during the civil rights era.
But fortunately we don’t need speculation; we have ample experience. In Vermont, people have long been free to carry concealed weapons without a license. In New Hampshire and the state of Washington, law-abiding adults have been legally entitled to concealed carry licenses for over 50 years. Today, law-abiding adults can get such licenses in all states except California, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, and Wisconsin. In many states, such as Arizona, Delaware, and Maine, law-abiding adults may carry guns openly, even without licenses.
Is public debate on balance especially inhibited in any of these categories of states? Is speech in Arizona, Vermont, and Washington less free than in Hawaii, Maryland, or New York, which try to limit the supposed “smut” of guns to the home? I know of no evidence for this, and Guns as Smut doesn’t point to any.
V. Anxiety About Self-Defense Guns as Smut also seems to express concern about public self-defense more broadly.
The Article suggests that early American law was “ambivalent” towards armed self-defense in public. No; there was no doubt at the Framing of people’s right to defend themselves in public using deadly force against murder, rape, or robbery, so long as the use of deadly force was genuinely necessary. (The necessity requirement explains the “duty to retreat” that’s imposed in many states — if one can defend oneself safely without killing, then the killing isn’t necessary.)
Nor did Blackstone “specifically reject[] the Lockean notion that a man had a right to kill an aggressor in public” when it came to genuine self-defense against serious crime. Blackstone expressly said that, “If any person attempts a robbery or murder of another . . . and shall be killed in such attempt, the slayer shall be acquitted,” and likewise for “a woman killing one who attempts to ravish her.” Blackstone’s disagreement is simply with Locke’s assertion that deadly force can be used to resist “all manner of force,” including force other than robbery, rape, or murder. Justice Wilson likewise made clear that homicide was protected “when it is necessary for the defence of one’s person,” and not just for the defense of one’s home.
The Article also argues that terrorist or revolutionary mobs may publicly carry arms under the pretext of self-defense. Yet the legal system has had, and should have, little difficulty distinguishing individual citizens’ permissible legal possession for self-defense from mob action aimed at attacking or terrorizing. Past refusals to suppress some mob action — which left victims to fend for themselves, sometimes with their private arms — have stemmed from deliberate governmental underenforcement of normal criminal law, not from law-abiding citizens’ right to carry guns.
Finally, the Article worries that a right to bear arms outside the home may lead to the constitutionalizing of self-defense law. And indeed the right to bear arms in self-defense has been used as a support for the well-established criminal law of self-defense. Justice James Wilson spoke of this in 1791, and courts have discussed it since (as well as relying on explicit constitutional rights to self-defense mentioned in state constitutions).
But that’s not much of a horrible for Guns as Smut’s parade. Even under the narrow Washington v. Glucksberg test, the Constitution protects unenumerated “fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’” The right to self-defense should indeed qualify under that test, even without support from the Second Amendment. Nor should recognizing such a right cause much change in the law, given that the core of the right — the right to use even deadly force when necessary to protect against the most serious crimes — is uncontroversially recognized by statutes and the common law.
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I have reached my allotted word limit, so I leave the rest of Guns as Smut’s 79 pages to others. Suffice it to say that, whatever sound arguments there might (or might not) be for limiting gun rights to the home, the arguments that Guns as Smut gives do not qualify.
Bruce Hayden says:
I think that smut may be closer to depriving criminals of their right to have guns, or maybe a prohibition against crew served weapons up through aircraft carriers. Or, possibly depriving us of the right to carry guns into a courthouse or airport.
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October 28, 2009, 1:27 pmchris says:
I’d argue that your criticism isn’t fundamental *enough*: never mind the weaknesses of the analogy, the obscenity doctrine itself is one of the biggest pieces of judicial activism ever. There’s absolutely no textual basis for it. It’s upheld *solely* because of the historical accident that certain justices whose philosophy would otherwise lead them to reject judge-created exceptions to the plain text of the Constitution have a sufficiently strong personal animus toward obscenity that they will grasp at any straw in order to smite it (which is also where it came from).
Regardless of what you may think about gun control, either as policy or as constitutional law, analogizing it to groundless, ill-considered, vaguely defined doctrines judicially created ex nihilo seems like a bad idea.
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October 28, 2009, 1:34 pmBryan Willman says:
There is one pretty good analogy. Obscenity and pornography are very very difficult to control, and all sorts of punishments have failed to dissaude people from creating or consuming them.
Likewise weapons. Things that might be used as weapons are everywhere around us all the time. So failing to recognize the right of the law abiding to carry guns or like weapons in public does NOT “disarm the public square” but rather imposes a severe arms inbalance, in which criminals (who will carry guns anyway), large/strong/fast criminals (who will carry pipes or sticks), and the like, have an overwhelming advantage against the “ordinary” citizen denied a gun or other such weapon.
What in any body of law allows government to impose such an unfair and uneven risk upon citizens, at least while not in a decared war?
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October 28, 2009, 2:15 pmPreferred Customer says:
The analogy between obscenity and crew-served weapons seems reasonably solid to me, as well. It strikes me as a good way to get to the what seems a sensible result without gutting the Second Amendment–strong protections on weapons necessary for self-defense, much weaker protections on larger, more dangerous weapons that have little use outside of an organized military or paramilitary force. Of course, where the line is drawn becomes critically important, so that the unprotected category does not swallow the protected category, but the same is true of obscenity.
As for keeping guns out of airports and courthouses, an obscenity analogy doesn’t really work, but application of a strict scrutiny test likely would. While strict scrutiny is often fatal when applied to speech, presumably there are restrictions on the carriage of firearms that would meet this test.
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October 28, 2009, 2:20 pmPersonFromPorlock says:
EV, it seems to me that the best response would have been a succinct “Do you have a serious argument?”
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October 28, 2009, 2:24 pmTim says:
+1. Are these people braindead?
Is the Columbia Law Review really going to print this crap? How he hell did an enumerated constitutional right ever become so politically unpopular?
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October 28, 2009, 4:56 pmPhatty says:
This is nothing more than an attempot at damage control from the anti-gun crowd. They suffered a defeat in Heller when their “collective right” argument was rejected, and now they are looking for ways to limit the right as much as possible to lessen the impact.
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October 28, 2009, 5:02 pmOrin Kerr says:
Professor Miller’s reply to Eugene struck me as a bit puzzling. If I read the reply correctly, Professor Miller doesn’t actually defend the analogy on which the article is heavily based. In response to Eugene’s argument that the analogy is arbitrary, Prof. Miller responds “fair enough,” and then asks the reader to imagine the article without the analogy. But at least if the abstract is an accurate guide, the analogy is pretty central to the argument. Perhaps the article itself doesn’t rely on it as heavily? I don’t know, as I couldn’t find the full paper online.
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October 28, 2009, 5:12 pmCJColucci says:
I have all sorts of specifically-enumerated, uncontroversial, and even popular constitutionally-protected rights, but I can’t indulge in all of them just anywhere, whenever I feel like it. I predict that most half-way reasonable “time, place, and manner” regulations will be upheld, probably without extended discussion.
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October 28, 2009, 5:15 pmNaG says:
Wait, Miller is a professor? I assumed the article was a casenote by a student, based on the way it read and the quality of its analysis.
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October 28, 2009, 5:19 pmDuffy Pratt says:
Aren’t both the first and second amendments primarily concerned with the preservation of whacking materials?
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October 28, 2009, 5:19 pmSoronel Haetir says:
The real buzz-kill for the guns as smut argument giving plenary authority to locales would be the prohibition of arbitrary and capricious application of rules. If the 2A is incorporated I fully expect that prohibition to make the cut and become one of the major underpinnings of future challenges, especially in NYC and various CA locales.
What I find interesting here, given how much of the country has gone to shall issue or even unregulated concealed carry, these sorts of articles strike me as some sort of desperate attempt to regain ground in a lost cause. From what I’ve seen abortion is far more evenly split. Even in places like CA where gun control is relatively popular the politicians aren’t willing to touch the issue. This leaves control advocates in the untenable position of trying to grow enough of a caucus to remain relevant.
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October 28, 2009, 5:25 pmTim says:
I couldn’t agree more, and I would expect that from the New York Times. But scholars, on a law review? It’s like we’ve lost all standards of scholarship and published anything that someone will write down. It is shocking and embarrassing that they’d attempt to paint ALL 2nd amendment rights into a corner of free speech jurisprudence that in the year 2009, should be overruled anyway.
I wonder what they’d say if the entire obscenity doctrine were overruled. Few legal doctrines are as irrelevant as “obscenity,” save maybe the “fighting words doctrine” which has reached irrelevance once burning a cross in a black family’s yard was declared not fighting words, including by a black justice.
I guess they’re trying to allow some “alternative view” to be expressed by printing Professor Volokh’s sidebar, but honestly, I’m wondering if responding to this was even worth his time. An Ivy League university, it would seem, could not possibly expect such nonsense to be accepted as legitimate scholarship (the guns as smut analogy, I mean. Obviously Professor Volokh’s response is on point as usual.)
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October 28, 2009, 5:45 pmwesley says:
Very nice, I thought. I also read his reply to your response. It was really strange. You’re too focused on the analogy while he’s “talking about the thing itself”; and you’re being “strident” and “mordant” while he’s being thoughtful? I had the opposite reaction.
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October 28, 2009, 5:49 pmLarryA says:
If guns are as illegitimate as an obscene video how come the U.S. government issues so many of them to its employees?
From Miller’s response:
Current polling data shows little support for more gun control. Presidential candidate Obama didn’t claim to respect the Second Amendment because everyone wants gun control. A third of the Democrats in Congress are voting pro gun, and it’s because their constituents demand it.
Actually, only a handful of states ever prohibited the open carry of handguns, and nationwide carrying of long guns outside the home is even less regulated. Forty states now have right to carry concealed laws, passed by legislatures elected by their citizens.
Really? Has Prof. Miller never heard of hunting? Has he never seen a shooting competition? According to the National Sporting Goods Association, since 2006 people in the U.S. spend more money on equipment to hunt and target shoot than they spend on golf, or any other category but exercise equipment. They aren’t doing all of that in their homes.
Hello? The whole point of the obscenity definition is that possession of it is excluded from being a “federal constitutional right.”
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October 28, 2009, 5:52 pmSoronel Haetir says:
Tim,
This is Columbia we are talking about. Smack in the middle of one of the hold out jurisdictions. Probably hoping if they put their fingers in their ears and go “nah nah I can’t hear you” long enough all the guns will just go away.
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October 28, 2009, 6:11 pmwlpeak says:
Huh? Why can’t crew served weapons serve a self-defense role? Or anti-tank weapons for that matter? Doesn’t that depend on where and against what one is defending oneself?
Also, what the heck is a ‘sensible result’ in this context? Shouldn’t the only sensible result be the correct reading and implementation of the 2nd?
And since when is a citizen prohibited from commissioning their own warship? To whom else does one issue letters of marque? Just sayin...
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October 28, 2009, 6:14 pmOrin Kerr says:
Tim Nuccio:
I realize you have extremely strong personal views about what the law should be here, but I’m not entirely sure why you think the article was so bad except for how far it was from your personal views. Among other things, I don’t think the article is actually available online, so I’m not sure how you know that the article is so bad without apparently having read it. Or is it available somewhere that I have missed?
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October 28, 2009, 6:22 pmA. says:
Tim’s position on the deterioration of legal scholarship is based, of course, on the full, deep knowledge of the law that being a COLLEGE SENIOR affords him. Heh.
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October 28, 2009, 6:46 pmTim says:
Professor Kerr:
I’m not sure what your point is here. You’re not sure why characterizing an enumerated constitutional right, that the Supreme Court of the United States has already ruled guarantees an individual right to firearms ownership as one that should be assessed by the obscenity doctrine is completely ridiculous?
I’ll usually entertain debate on nearly anything, but I thought even a casual observer could tell how ridiculous this argument is. The standard for obscenity is so high that it is practically irrelevant to nearly any case where the First Amendment is even remotely useful as a defense. These people want to characterize ALL exercise of the second amendment right (however it may be defined in the future) into the most extreme of all speech cases, and that seems reasonable to you?
This isn’t just a bad argument, it is a ridiuclous one. Professor Volokh was nice enough to assume it had at least some legitimacy and respond to it like any academic would–reasonably. But any casual observer who has read D.C. v. Heller + has some sort of understanding of First Amendment case law has to think this is just a big joke.
It doesn’t matter if you call this an “undue burden,” an “unreasonable restriction” or that it is not “narrowly tailored to a compelling government interest.” Comparing ALL exercise of the Second Amendment to time, place, and manner restrictions is an invalid argument.
As Professor Volokh points out, argument from analogy can be very useful–especially when comparing such a well established right (1st amendment) to one that lacks such case law (2nd Amendment). But any analogy must bear some reasonable relationship between the purpose for the Framers’ reason for writing it down and the exercise that the court allows under its doctrine.
Even under rational basis scrutiny (and assuming Heller’s precedent), regarding guns as obscenity and restricting their ownership, possession, and use to such limited locations as the home (where they are useless except in the most extreme of circumstances) is ridiculous. In the pre–Heller world, the discussion might be very different.
Can you imagine if all of our “freedom of the press” or “freedom of religion” were restricted to the home?
Perhaps it’s my personal opinion that the entire obscenity doctrine is outdated, unjustified, and should be overruled that is driving this rant. Or perhaps I ought to spend more time trying to equate “obscenity” with “bearing arms.” But until then, I think I’m on pretty hard ground in saying that this isn’t just a bad analogy, it’s totally ridiculous.
Or better yet, let’s apply “contemporary community standards” to firearms. What the hell could that possibly mean? Flintlocks for the cities of Chicago, San Fransisco, and New York, ordinary revolvers for Baltimore and New York, standard semi-autos for Milwaukee, Memphis, and Reno, and AK-47s and AR-15s for everybody else? Who decides? Are we really going to claim such would be an objective standard? Of course not.
No matter how you phrase such restrictions, they come to absolutely absurd conclusions. As if the obscenity doctrine isn’t bad enough for trying to analyze forms of self-expression, I cannot possibly fathom how stupid it’d be to apply the same reasoning to the right to keep and bear arms. I’d even go as far to say that you’d be hard pressed to get the current nine to declare anything “obscene” that didn’t violate some other law. This is the year 2009. If the stuff that any 12 year old boy can find with a google search isn’t “obscene,” no contemporary community standard could be sufficiently conservative to declare something obscene, short of using that of some small village in Iran or the Amish as the standard. And if that were the standard for all of the United States, the First Amendment would be useless and irrelevant.
If you have specific questions as to why I think this is an absolutely ridiculous argument, or would like to probe me for further ranting on why some attempt to grasp at straws and marginalize our Second (or First, for that matter) Amendment rights, feel free to comment further here, or email me via the links on my blog.
I’d be glad to debate with you on the substantive issues if you’d like to make an argument. Let’s leave ad hominem to the high schoolers. Especially when you hide behind a single initial, without an email or a website yourself. Why don’t you send me an email and we’ll hash this out? Or if you prefer, pick a topic and I’ll research it and blog it myself and you can leave your comments, and I’ll let them stand–unmoderated.
You have made my point in much fewer words. That’s what I got out of this argument, too. “Oooh, there’s one category of speech that remains unprotected. Let’s just characterize ALL firearms ownership in that category, and we can keep our fingers in our ears forever!!!” That’s what it sounded like to me.
Kuhn’s philosophy of science said that there are two types of science...“normal science,” where paradigms are presumed true, and “scientific revolution” where paradigms are abandoned when a new paradigm fits the facts better and becomes worthy of adoption.
It’s time that our philosophy of the Second Amendment undergo a revolution. Our gun rights can no longer be marginalized by foolish arguments by this one.
I’m ashamed to say that I will never be attending such a renowned law school as Columbia. But I swear that when I do attend some law school, which will be next year, and if and when I am afforded the opportunity for my scholarship to grace the pages of its law review, I will never publish something as ignorant, foolish, and misinformed as this analogy.
I hope I’ve made my point, as I’ve had a few too many beers to be engaging in any sort of analytical thought. Either way, I feel that I could personally abandon everything that I think about the Second Amendment and still find this analogy absurd. Professor Kerr doesn’t think so (because he’s obviously read my work on the 2A and knows that I’m a strong supporter of gun rights). But I think anyone who believes that this is not an objectively ridiculous argument errs. And I’d be willing to debate anyone, scholar or layman, on this theory of legal interpretation.
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October 28, 2009, 10:56 pmloki13 says:
Um, Tim, not to put to fine a point on it, but Heller is a (how shall I say it) somewhat recent decision. While it certainly dovetails nicely with the a priori beliefs of most of the VC community, and is the product of a great deal of academic and legal work in the past twenty years, it is also a revolution in the way the Second Amendment is viewed. It wasn’t very long ago... not so long ago at all, in fact, when the view in Heller would be controversial– in fact, wouldn’t be accepted by even the most conservative members of the Court (see also, Burger). Not to mention it was a 5–4 decision.
While I am happy for your certainty, perhaps a little less certainty would serve you well if you’re going to law school next year.
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October 29, 2009, 12:02 amTim says:
I not only agree with your point, but there is a 4,000 word paper on my blog that analyzes the collective rights opinion (that was prevalent pre-Heller).
I will also point out to you that even Professor Lawrence Tribe believes in some understanding of the Second Amendment as an individual right. In fact, some scholars have theorized that it was the change in scholarly opinion on the Second Amendment that influenced the Heller decision.
I do agree that Justice Burger had a very different view than the modern view of the Second Amendment that he expressed publicly. I’ll also point out that the issue was never analyzed by the Court during his tenure. With that said, I do think you make a legitimate point. We have a long way to go on Second Amendment jurisprudence. And I welcome the future analyses of scholars and judges who wish to make legitimate arguments free of shoving their hands in their proverbial ears.
Like I pointed out in the Kuhn analogy, we are in a time of “legal revolution” with respect to the Second Amendment. I find it fascinating and interesting.
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October 29, 2009, 12:53 amBubba Jensen says:
For the guns/smut analogy to even be offered for debate wouldn’t it logically have to apply uniformly to everyone? It seems that the proposal the Mr Miller is making is that citizen guns are obscene and must be kept in private, but government guns are not and thus, are not subject to any restrictions? So, using the analogy it would be unlawful for a citizen to speak obscenities in public, but it’s perfectly OK for the President, member of Congress, police officer, etc to use that same speech wherever and whenever they want? I agree with others. It’s ridiculous.
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October 29, 2009, 4:11 amCarl Donath says:
Constitutional protection of crew-served weapons owned by citizens is far more analogous to protecting the massive crew-served printing presses of The New York Times. Nobody contends that publication of newspapers should be entirely under the control of the government; neither should heavy arms, and for the same reasons.
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October 29, 2009, 8:46 amObserver says:
And your comment, is based, of course, on the full, deep, knowledge of the law that being an ANONYMOUS INTERNET POSTER affords you? Heh is right.
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October 29, 2009, 8:55 amCarl Donath says:
The analogy to obscenity better parallels small arms which are so unwieldy or unreliable as to have no practical application, yet which are still purchased and enjoyed simply for their visceral weirdness+lethality or extreme low cost. I’m thinking of oddities such as the .45/70 revolver, AR15 pisols, and “jam-o-matic” pot-metal supercheap handguns — all of which have practically no viable place in “security of a free state”, yet which still enjoy 2nd Amendment protection as the interpretation of the Bill Of Rights must be to make such protections as expansive as possible, not tightly limit them.
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October 29, 2009, 8:58 amAssistant Village Idiot says:
Observer wins the thread.
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October 29, 2009, 9:07 amDjDiverDan says:
Professor Miller lost me completely when he referred to “Professor Volokh’s occasionally strident response.” I saw nothing at all “strident” in the response — it was measured, logical, persuasive, and completely lacking in any personal or ad hominem attacks on Miller’s article. And frankly, even ignoring the issue of whether the analogy of guns to smut is apt or inapt, Miller’s response completely ignores the central point that self-defense is at the very core of the individual right under the Second Amendment; if, as Miller contends, the Government can restrict or even eliminate the right as soon as one leaves the front door of his or her home, then the phrase “shall not be infringed” becomes pretty meaningless.
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October 29, 2009, 11:26 amGordo says:
Standard handguns and hunting-type rifles and shotguns are clearly not “smut.” But I think the “smut” analogy certainly applies to a whole class of weapons, from nuclear warheads, down to “dirty bombs,” bazookas, hand grenades, fully-automatic machine guns, and semi-automatic machine guns. Such weapons were (and hopefully are) traditionally banned from ownership by individuals, just as smut was banned. They arguably serve no legitimate individual self-defense interest, just as smut arguably serves no legitimate free speech interest.
So while the article may be overly broad, the analogy of certain “over-the-top” weapons to smut is valid.
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October 29, 2009, 12:09 pmGordo says:
Perhaps because, unlike the “enumerated constitutional right” of free speech or freedom of religion or freedom from having troops quartered in my house at peacetime, the freedom for you to carry around any ol’ damn weapon you please means that you can use it to snuff out my life on a public street without a second thought.
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October 29, 2009, 12:14 pmGordo says:
For “limiting the damage” read “trying to prevent someone carrying around a weapon from snuffing out their life on a whim.”
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October 29, 2009, 12:15 pmGordo says:
Your statement makes a lot of sense. Which is why the 2nd amendment absolutists will attack it without mercy. They are nothing more than the ACLU of the 2nd amendment.
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October 29, 2009, 12:17 pmGordo says:
And New York City is now one of the safest in the U.S.
There may not be a correlation, but at the least it’s an interesting “coincidence.”
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October 29, 2009, 12:19 pmK-Romulus says:
NYC is “one of the safest in the US” because of the staggering number of warrantless stop and frisks and/or active arrest warrants or criminal summonses outstanding at any given time. I did the numbers, and it was about one in seven NYC residents either (1) stopped and frisked on the street without charge, or (2) subject to a pending criminal warrant or summons (a small portion resulting from the stop and frisk).
NYC gun laws have been pretty consistent since 1911, so that road is a dead end.
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October 29, 2009, 12:29 pmGordo says:
One more comment, and then I’ll shut up (for now). Tim, as for your complaint about low law review standards of scholarship, law reviews are often used to make unusual, sometimes outlandish, legal arguments. While I think Guns as Smut may make some outlandish legal arguments, on the face of it, as I stated above, the analogy may make some sense for “outlandish” modern weapons.
And many law reviews have been printed articles by scholars, some of them Volokh Conspiracy contributors, waxing nostalgic for a return to pre-1937 jurisprudence on the Commerce Clause and 14th amendment economic substantive due process issues. While I consider the practical results of such nostalgia (bye bye social security, medicare, labor laws, zoning, etc.) outlandish, the articles are nonetheless quite interesting and thought-provoking, and worthy of publication in a law review.
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October 29, 2009, 12:34 pmTim says:
Gordo:
Perhaps because, unlike the “enumerated constitutional right” of free speech or freedom of religion or freedom from having troops quartered in my house at peacetime, the freedom for you to carry around any ol’ damn weapon you please means that you can use it to snuff out my life on a public street without a second thought.
I’m not sure where you made the connection here. Are you convinced that my lawful carrying of a firearm makes murder legal? Because I think it’s pretty clear to the law abiding, anyway, that while I have a right to self defense (whether armed or not), going armed does not provide any authority to ‘snuff out (your) life on a public street,’ or violate any of your rights for that matter. My purpose for going armed is to protect rights, not to violate them. Furthermore, we’ve come to accept a society where the government has thousands of armed men on the street every day. What of that? It seems to me that any civil society in which government officials regularly go armed must respect the rights of its citizens to do the same.
The analogy does make a lot of sense when compared to the First Amendment in this instance, however. I do have the right to say unpopular things on the street. But “fighting words” or “inciting immediate lawless action” does not have the same First Amendment protection. With that said, the Court has already ruled that “We’ll take the fucking street later” is not inciting immediate lawless action, merely because the word “later” is used.
Similarly, merely allowing me to go armed where not prohibited hasn’t incited any crime. It is a fact, actually, that in the overwhelming majority of these United States, I can lawfully go armed with my firearm concealed or not, and such behavior is entirely legal. Surely if you had a legitimate concern that I was going to snuff out your life by doing so, you would petition your legislatures to change the law and place greater restriction on me doing so, but actually, the trend has been the other way–to allowing citizens to lawfully go armed in most of our society. Over the last 30 years, the number of shall-issue and unrestricted carry states has increased substantially (in the case of unrestricted, it’s gone from 1 to 2, but shall issue is far more popular than it was even 20 years ago).
So, even presupposing that in the year 2009, there are forms of expression sufficiently “obscene” that the Court would call them so, I fail to see how the majority of lawful CCW license holders are doing anything that could be compared to the smut that the Court has called “obscene.” Nor have the consequences that you suppose (death of innocent people) been a problem for the law abiding CCW license holder. So if you could reconcile my Second Amendment rights with your irrational fear that the free exercise of them would result in some sort of harm to you, it’d be greatly appreciated. Until then, I’m going to safely go armed anywhere where lawful, so that I may defend my life and my family, should the worst happen.
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October 29, 2009, 1:20 pmTim says:
What is a semi-automatic machine gun? What definitions are you using to define it?
I can tell you that right now, there exists no federal ban on any semi-automatic machine gun (if they are defined as a belt fed, small arms caliber that fires one round with each operation of the trigger). In fact, I’ve read a lot of so-called assault weapon’s bans, and I can’t recall a semi auto M1919 ever being on the list, or containing most of the features necessary to trigger the ban. So I’d really like to hear an explanation of what you mean by “semi-automatic machine gun” and if (and if so, why) they ought to be banned. They are owned lawfully, and as far as I know, they can be owned lawfully even in some of the most gun unfriendly states (like my home state of Illinois, for example, which bans short barreled rifles, short barreled shotguns, silencer, and other “evil” weapons).
Neither hand grenades nor fully automatic machine guns are banned at the federal level either, and never have been. This is a myth. They are heavily regulated by the National Firearms Act, but they certainly are not banned and the ATF says that there are over 150,000 legally owned machine guns in the United States. Prior to 1986, nearly anyone who was not a felon could legally buy one if he was willing to pay the tax.
These types of firearms, but especially semi-automatic rifles, are among the most useful and effective of all self-defense weapons. If these were labeled as “smut” firearms and declared void of Second Amendment protection (that is, if the common infantry weapons of our military and those throughout the world) were banned, the Second Amendment would be without its core primary purpose. Really, though, those who perpetuate the idea that this stuff can and should be banned are merely waging a war on technology. Semi-automatic rifles have been used since WW II by our Soldiers in war. They are used because they work better than what came before them, which were repeating rifles that had to be manually operated between shots. And although we killed the enemy quite effectively in the first World War with 5 shot, repeating bolt action rifles, I can’t see any reasonable purpose why the Second Amendment’s protection, however narrow, would be restricted only to technology that is, as of today, nearly 100 years old. I suspect you are onto something (that someone will make this argument before a court in my lifetime). But I fail to see how, if the Second Amendment means anything at all, that the most basic infantry arms will be declared outside its scope, even under rational basis scrutiny.
I know that politically, there is a lot of pressure to call this a “war” on “assault weapons.” But when more carefully considered, it is merely a war on technology. I don’t think anybody but the most extreme of people in Congress have ever proposed a total ban on all firearms, and indeed even some of the most restrictive western countries still allow some firearms ownership, even those where they confiscated and destroyed handguns (Australia, U.K., etc.). And so if the courts are going to draw a line in the sand on this war in technology, I’m very curious as to why it’d be drawn to where most important meaning for the Second Amendment is essentially gone.
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October 29, 2009, 1:23 pmGordo says:
Hello Tim, I admit to having a visceral aversion to all weapons that could be used to easily kill me (and yes, that includes knives). But as a lawyer, I am quite happy that the illogical claim that the 2nd amendment does not confer an individual right to “bear arms” has been dealt a mortal blow by the Heller decision.
I do have a fundamental disagreement with your assertion that the primary focus on arms allowed by the 2nd amendment should be on arms that are more effective at killing other human beings. The focus should be on arms that are necessary to defend oneself. And I would further argue that the focus must be on arms that are necessary to defend oneself on an individual basis, not on arms that are needed to allegedly counter the actions of some future hypothetical tyrannical government. Going that direction lies civilizational and societal madness.
I see lots of posts on these threads from what I characterize as “2nd amendment absolutists” who recognize no restriction on firearms possession, claiming that it is some sort of “natural right” that prevents even a sensible registration and licensing scheme for concealed weapons carry. I hope you are not one of these 2nd amendment absolutists.
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October 29, 2009, 2:51 pmNick B says:
gordo:
I recommend having a clue about guns before talking about them, much as I’d recommend to all “gun control” proponents. Also, it sounds like you have unrelated issues, you might want to consider recusing yourself.
Nick
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October 29, 2009, 3:44 pmMarc says:
The most dangerous weapon out there is the automobile.
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October 29, 2009, 3:48 pmTim says:
The Second Amendment’s primary purpose has nothing to do with self defense at all. The purpose for the Second Amendment is the protection of our liberty through violent revolution, if necessary.
Instruments of war are precisely what were intended to be used for this purpose. Just as the First Amendment was designed as an instrument of dissent towards the government, the firearms of their era, too were intended to be protected so that if their use was necessary, either in defense of our land from invasion or against our government to protect the Constitution, they would have the means to do so. You call this, “civilizational and societal madness” whereas the Framers, themselves revolutionaries, called it “liberty.”
It seems that your visceral reaction is more similar to unpopular speech (that which you don’t like) or even offensive speech. Of course, any analogy of say, my handgun on my hip to unpopular speech (say, the KKK marching in Skokie, Illinois, for example) would find that speech clearly within the First Amendment’s protection. It should be evident to any lawyer as you claim yourself to be, that it is precisely this type of “offensive,” dissenting, unpopular speech that requires the most constitutional protection, just as when people like you have “visceral” reactions, my Second Amendment right to bear arms needs protection.
Redefining the Second Amendment to “self defense” from “defense of liberty,” whether it be from invasion or from a domestic enemy fails to understand the core reason for why we have a Second Amendment to the Constitution. Calling me a “Second Amendment absolutist,” and freely assuming that a “registration and licensing scheme” is “sensible” goes too far as well. Discussion of whether CCW ought to require a license or not is a separate issue from this discussion. Once the scope of the right is defined, it will be for courts to decide if such a “scheme” was “sensible.” But since I’ve already stated that I have a license, it should be clear that I am not willing to break the law, even if we presuppose that I did believe the license scheme was an unreasonable restriction on my right to bear arms. This discussion begs another question for you, however. My home state does not issue licenses to anyone–they are not available. Do you think this infringes on my right to bear arms? If we presuppose this an acceptable exercise of my Second Amendment rights, and if I’m willing to submit to, as you suggest, a, “sensible registration and licensing scheme,” does that obligate the government, upon my submission to such a scheme, to issue me a license? If it refuses, or the legislature refuses to create such a system, are my rights being violated? Or is it merely a right to keep arms, but not one to bear arms as well? I’m not exactly sure how, even if your licensing scheme were considered legally acceptable (either satisfying a reasonable restriction if rational basis scrutiny were accepted, not creating an “undue burden,” or satisfying the strict scrutiny doctrine if the Second Amendment ends up adopting that), a total ban on my right to bear arms could ever be upheld. In the words of Chief Justice Roberts, “What’s reasonable about a total ban?”
The real issue here is whether lawful concealed carry outside of the home is analogous to “obscenity,” which can be prohibited anywhere except in the most private of places, the home, though, not whether CCW licenses are constitutional, which so far as I know has never been challenged. I think it’s pretty evident from a perusal of the First Amendment caselaw that only a fool or a madman would suggest that any exercise of whatever rights are afforded by the Second Amendment outside of the home are analogous to obscenity.
Perhaps all these wasted words were carefully summed up by Professor Volokh quite effectively in his sidebar, “It’s hard to see any justification for such an analogy, other than a purely instrumental one.”
Indeed.
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October 29, 2009, 4:53 pmTim says:
I thought this worthy of response as well.
I never claimed, generally, that law reviews lack standards of scholarship. Quite contrarily, I have found them informative in my own work on issues, whether constitutional or in other areas of law where an explanation, or better yet, a forward looking picture of future litigation. With nothing more than my computer right where I sit, I can dial up Lexis, type in a legal topic, and immediately download articles on topics limited by only my imagination. Surely the ability for me to do so is a benefit that I would not soon give up. When my mother went to law school, research was much more difficult than today, where I have this at my fingertips from my home.
If you read carefully, what you are claiming are “outlandish” weapons are used by law enforcement, our military, competitive target shooters, hunters, and recreational shooters on a daily basis in this country. The most popular rifle in America is the AR-15–precisely within the scope of weapons that you are calling outlandish. If you expect me to accept your position, my suggestion to you is that firearms that are of the most common action, calibers, and configuration not be what you choose to label outlandish. To use this worn out analogy, you are trying to suggest that Hustler magazine and my daily newspaper are not only the same, both are “outlandish” and “obscene.” Surely some standard must be articulated in the future when these issues are decided, but I find it very hard to believe that the legal rule that will come out of all this litigation will be that the most popular arms used in our society are not covered by the Second Amendment. We might as well declare newspapers outside of the First Amendment’s protection if we were going to do that.
Arguing that cases were wrongly decided and that we should return to an older legal doctrine with an extensive textual basis is a totally different story. I am not dismissing your point outright, but I do think that the Professors on here who are publishing things that suggest that they’d prefer a narrower interpretation of the commerce clause, or privileges and immunities incorporation, for example, are making a case with far different than if future Second Amendment jurisprudence were carved out (as a new issue for the courts) full of precedents that marginalize the right. As Scalia said in Heller, “what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” The Second Amendment might not mean much today, but to suggest that in the future, some court will narrow it to nothing is intellectually dishonest. It’s not the same thing as asking for a certain line of cases (the New Deal, for example) to be overruled because they were wrongly decided, and providing evidence. Your comparison is false.
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October 29, 2009, 5:28 pmGlen says:
You lost me (and every other mentally stable person) there.
Hysteria makes a bad argument. Really bad.
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October 30, 2009, 1:58 amKirk Parker says:
Tim,
Just a bit of personal advice to you: if you want to be read more, write less. I know it takes longer to boil what you have to say down the the barest paragraph or two, but I’m sure I’m not the only one whose reaction to seeing a comment that goes on for screenfulls (on my high-resolution monitor!) is just to skip ahead to the next comment.
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October 30, 2009, 10:20 amGordo says:
I guess these guys don’t know what they are talking about. Or maybe it’s you.
http://www.thefirearmblog.com/blog/2009/09/08/sg-43-semi-automatic-goryunov-7-62x54r-for-sale/
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October 30, 2009, 11:33 amTim says:
And those are regulated how? I’m pretty sure if I had the money, they’d be more than happy to sell me one. Anyone can own that. And it’s useless other than a conversation piece.
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October 30, 2009, 12:44 pmGordo says:
Tim, I would argue that such guns do not belong in the hands of private individuals, and should be considered the 2nd amendment equivalent of “smut.”
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October 30, 2009, 4:10 pmCarl Donath says:
Gordo, a “semi-automatic machine gun” is an oxymoron.
A “machine gun” is by definition automatic.
“Semi-automatic” is by definition not automatic.
A “semi-automatic” version of a “machine gun” is a semi-automatic, it is not an automatic and is therefor not a machine gun. It may have been automatic at one point, or may be modeled after a machine gun, but the functionality has been altered such that it is no longer automatic and now is within a different category (semi-automatic). Use of the example given shows misunderstanding on your part, not theirs.
Anyone who uses the term in earnest has proven himself ignorant of the subject, and should either recuse himself or be ignored. Ignorance is not viable grounds for making policy.
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October 30, 2009, 5:13 pmGlen says:
That pretty much puts you in the lunatic fringe, opposite not only the U.S. Supreme Court, but just about anyone else with a smidgen of knowledge about guns and the law — with the exception, of course, of out-and-out gun banners.
In all seriousness, your comments border on the pathological. You may be a practicing attorney, but that does not make you immune from disease. There are effective and recognized treatments for specific phobias; desensitization therapy is typically effective in more than 75% of cases. But engaging any professional assistance would be more helpful than continuing to make irrational and combative online postings.
And congratulations for finding a link to a blog that employed the non sequitur “semi-automatic machine gun.” It’s on the Internet, so it must be true.
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October 30, 2009, 10:57 pmDAH Miller says:
Notwithstanding his disagreement with the title and analysis of my piece, I venture that Professor Volokh and I would agree in this much:
(1) The 2dA guarantees a personal right to KABA enforceable as Constitutional law;
(2) The 2dA contemplates some kind of natural right to revolution;
(3) The 2dA protects a legal right to KABA to use should people want to exercise a natural right to rebellion,
(4) The 2dA protects a legal right to KABA for self-defense (although we differ on scope).
Where Professor Volokh and I may disagree is that I take Justice Scalia & the Heller majority seriously when they say “no balancing of 2d Am rights.”
To me, this means that Scalia’s approach to the 2dA is about categories. Something is a 2dA “arm”; something is 2dA “bearing” — Just like in the First Amendment some things fall within the definition of 1st Am. “speech” and some things (like obscenity) do not.
Scalia suggests we look to history to find what Second Amendment “arms” are; we look to history to find what Second Amendment “bearing” is. Just as we look to history to determine what 1st Am. “speech” is.
My view of the history reveals a lot of ambivalence about “bearing” outside the home; esp. during Reconstruction. (Others clearly disagree how ambivalent). And because of this lack of definitive history, public bearing of arms is not clearly “bearing” in a Second Am. sense, any more than some things (like obscenity) outside the home are “speech” in a First Am. sense.
Further, Heller includes all these 2d Am. exceptions (no guns for felons, the insane, in sensitive places, etc.) None of these exceptions seem to work with Scalia’s categorical approach. In fact, they invite the balancing the Court said it shouldn’t do. (i.e. does government interest in protecting children outweigh the teacher who needs a gun to defend herself against a stalker?).
If that’s the case, then a bright line rule, as with the First Amendment obscenity doctrine, seems to be the solution that best fits with the Heller methodology. Guns in the home are (generally) 2d Am “bearing;” guns outside the home are not. Obscenity in the home is 1st Am. “speech,” obscenity outside the home is not.
The 2d Am. is just a floor, state constitutions and laws, and Congress can offer more protection if they want. I just set the floor far lower than where Professor Volokh (and many others) understand it to rest.
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October 31, 2009, 1:19 amRegolith says:
Like Tim, I’d argue that those type of arms are exactly what the founding fathers intended to protect through the second amendment.
The 2nd Amendment, at it’s core, is the portion of the constitution that allows us to enforce the social contract between the citizens and the government.
In order to enforce a standard contract, as between two citizens, we look to the courts, who enforce their rulings primarily through the threat of violence. After all, if you refuse to follow the court’s rulings and don’t go through the various appeals processes you can be held in contempt of court, at which point the court forces you through violence or threat of violence (forcible incarceration being one of the preferred methods) to comply.
However, we have no higher court to enforce the social contract between ourselves and the government as there is no higher governing body that can legitimately do so. Therefor, we must be able to force the government to bend to our will if it violates the social contract, and that cannot be accomplished if the government has a monopoly on violence. And if the government is vastly better armed than the citizenry, it doesn’t completely need to outlaw all guns in order to effectively have a monopoly. All it needs to do is outlaw the newer, more effective models that allows greater rates of fire, range and accuracy.
That being said, I do believe that the government has a legitimate purpose in disallowing the possession of certain weapons like nuclear warheads, chemical and biological weapons, and some forms of heavy ordnance because the indiscriminate nature of such weapons vastly outweighs their usefulness for enforcing the contract. However, small arms such as machine guns are most certainly within the the realm of arms that should be protected.
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October 31, 2009, 4:41 amJoe says:
I’d think a better comparison, fwiw, would be between guns and having sex. At least then, we are talking about protected conduct, not something (obscenity) which is deemed not protected at all though some other right (privacy) might protect it in a backdoor method (no pun intended). Sex is particularly protected at home, but we buy things (e.g., contraceptives) as part of its expression and the right in various respects is protected outside the home as well.
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November 1, 2009, 12:09 pmBobDoyle says:
Good job Tim!
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November 1, 2009, 10:33 pmJust4 says:
I think that the carry of arms in public (pistol holstered, rifle slung) would be speech and that to carry in hand in a threatening manner (an AR-15 pistol has a carry handle for a reason) with no threat present would most likely be the obscenity. Other than that, any analogy here is completely without merit.
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November 2, 2009, 1:06 pmMike says:
I applaud Tim for his well thought out and constructive arguments instead of ad-hominem attacks and fear mongering arguments.
You can also go further and look at history beyond just the laws themselves. King George tried to confiscate civilian arms (and a particular attempt at seizing a weapons cache in Lexington, MA) sparked the Revolutionary War. The 2nd Amendment was put in place to ensure that the government could never legally attempt to disarm the people again. Furthermore it intended for civilians to keep the same weapons in their home that they would use in a local militia (note: the National Guard is NOT a militia and the traditional definition of a militia in 1776 was any able bodied man capable of bearing arms which was EVERYONE). Therefore we can conclude that the “militia” term in the 2nd Amendment actually adds more evidence to the fact that the amendment protects an individual right. Infantry weapons in modern times would mean a select fire (capable of fully automatic fire) AK or AR15 type rifles and I don’t see any reason that law abiding citizens should be restricted from owning such weapons. If the police and other law enforcement can carry these weapons why can’t the people? Are these people inherently more trustworthy than anyone else? Of course not
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November 3, 2009, 1:06 pm