In his dissent in McDonald, signed by three liberal justices, Justice Breyer argues that gun rights deserve little or no judicial protection at least in part because they put lives at risk:
Unlike other forms of substantive liberty, the carrying of arms for that purpose [self-defense] often puts others’ lives at risk…. And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.
This argument ignores social science evidence suggesting that extreme gun bans like those of DC and Chicago cost at least as many innocent lives than they save. Still, gun rights probably do cause at least some deaths that might otherwise have been prevented.
In that respect, however, they are no different from numerous other constitutional rights. Justice Breyer’s argument in McDonald is actually very similar to Justice Antonin Scalia’s dissent in Boumediene v. Bush, where Scalia warned that giving habeas corpus rights to War on Terror detainees “will almost certainly cause more Americans to be killed.” That argument didn’t move Breyer, who voted with the majority to extend those rights. Similarly, the enforcement of Fourth Amendment rights and Fifth Amendment rights allows at least some violent criminals to escape punishment, which in turn leads to some number of murders that might otherwise have been prevented. Pro-lifers certainly argue that the right to abortion kills far more people and in a far more direct way than gun ownership does.
But the really big skeleton in this particular closet is freedom of speech. Political speech and organization by communists, Nazis, racists, radical Islamists, and others has led to vastly more preventable deaths than private ownership of handguns. If the Russian Provisional Government of 1917 had suppressed the Bolshevik Party (as it could easily have done at various times during that year), millions of lives would have been saved. The same goes for the Weimar Republic and the Nazis. Closer to home, many black lives could potentially have been saved if the federal government had suppressed neo-Confederate and segregationist political speech in the South in the aftermath of the Civil War, thereby preventing “Redeemer” forces from regaining political power in the region and suppressing black rights.
One could argue that these other rights don’t endanger lives as directly as guns do. Action, not speech or procedural rights, is what really kills people. Perhaps the life-threatening effects of procedural rights and political speech can be forestalled without restricting these rights themselves. However, one could say the same of guns. As the NRA famously puts it, guns don’t kill people, people kill people.
Whether we are talking about guns, speech, or other rights, there are going to be cases where, as a practical matter, it is impossible to prevent death by measures short of restricting the right itself. For example, allowing Nazi speech in the Weimar Republic may have greatly increased the risk that the Nazis would come to power, by which point it was too late too prevent them from killing large numbers of people. Similarly, once free speech by Redeemers and ex-Confederates allowed them to seize control of southern states, it was politically impossible for the federal government to protect black rights against them – at least not without much greater violence than might have sufficed to prevent the Redeemers from organizing in the first place.
In making these comparisons, I do not mean to suggest that judges should allow severe restrictions on constitutional rights any time there is a plausible argument that doing so might save lives. To the contrary, I think judges should generally avoid doing so. The trade-off between lives and constitutional rights is one better made by the framers and ratifiers of the Constitution than by judges. Moreover, there are often risks to life on both sides. For example, gun ownership for self-defense purposes often prevents violent crime and thereby saves lives. Similarly, strong enforcement of the Fourth Amendment could sometime prevent abusive police behavior that itself endangers lives.
If we allow government to set aside constitutional rights whenever they “put… others’ lives at risk,” we soon won’t have many constitutional rights left. I also object to Breyer’s and Scalia’s more selective invocation of risks to life in cases involving rights for which they have little sympathy, while simultaneously ignoring very similar considerations when the right at stake is one they value more highly.
UPDATE: Breyer tries to limit his argument to “substantive liberty rights,” which may exclude procedural rights such as those protected by the Fourth Amendment or habeas corpus. However, it’s not clear why life-threatening procedural rights should be any more vigorously enforced than similarly risky substantive rights. After all, the purpose of most of the procedural rights is to provide indirect protection for “substantive liberty.” Moreover, as discussed above, freedom of speech is surely a “substantive liberty right,” and it sometimes poses serious dangers to life as well.
UPDATE #2: I should note that Justice Stevens’ separate dissent in McDonald makes a similar argument to Breyer’s (pp. 35-37 of the slip opinion). Thus, all four of the liberal justices have endorsed some form of this reasoning.
UPDATE #3: I should perhaps have pointed out that there is considerable academic controversy about the validity of criminologist Gary Kleck’s estimate, linked above, that there are 2.5 million defensive uses of guns per year in the United States. Some of the conflicting research is summarized here. I suspect that the Kleck estimate is probably overdrawn because of methodological problems such as those discussed here (though see Kleck and Marc Gertz’s response). But even the low-end estimates put forward by some of Kleck’s critics estimate some 100,000 defensive gun uses per year. Philip Cook, a prominent scholar general supportive of gun control, states that the truth is probably somewhere in between the 100,000 and 2.5 million figures, which seems plausible to me. In any event, my purpose is not to endorse any of the specific estimates, but simply to point out that defensive gun uses often do occur and sometimes save lives. Therefore, there are potential risks to life on both sides here.
Kent Scheidegger says:
There is also a passage in Stevens’ opinion that says criminal procedure issues should be exempt from the limiting principles he suggests. His justification for that split is weak, to put it mildly.
Mapp and Miranda have put violent criminals back on the street to kill again. If public safety is a good enough reason to limit to the federal government a right that really is in the Constitution, it is surely a good enough reason to overrule precedents that are complete fabrications.
June 28, 2010, 10:18 pmrequired says:
I don’t buy your speech argument, while speech might lead indirectly to deaths, despite claims about having Proust read aloud to people, speech does not directly kill people. While I suppose you could make a claim that firearms do not directly kill people but the bullets fired from them cause injuries …, that would be be a chain of direct causation and speech which has a direct causal chain to violence is not constitutionally protected (while “take her out and kill her” is speech it would be considered an incitement to violence and unprotected). Not that I buy Breyer’s argument, but your speech comparison seems poorly thought out.
June 28, 2010, 10:25 pmIlya Somin says:
speech does not directly kill people. While I suppose you could make a claim that firearms do not directly kill people but the bullets fired from them cause injuries
The right at issue is the ownership of guns, not the right to shoot them at innocent people. Ownership of guns, like speech, does not directly kill people, even though both sometimes increase the risk that people will be killed at some point down the line.
June 28, 2010, 10:30 pmJosh Blackman says:
Ilya, I think this argument also works for Miranda and the exclusionary rule. Undoubtedly, Miranda and the exclusionary rule result in many dangerous criminals going free. Surely this creates crime. Yet we accept those results because of the benefits criminal procedure protections yield.
This was addressed at oral arguments (full details here http://joshblackman.com/blog/?p=4758)
JUSTICE SCALIA: There is a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime but the confession can’t be used. We don’t — we don’t resolve questions like that on the basis of statistics, do we?
June 28, 2010, 10:34 pmMR. GURA: That’s correct, Justice Scalia, and as your opinion
-JUSTICE SCALIA: Well, why would this one be resolved on the basis of statistics? If there is a constitutional right, we find what the minimum constitutional right is and everything above that is up to the States. If you want to have, you know — I think we mentioned in Heller concealed carry laws. I mean, those are — those are matter that we didn’t decide in Heller. And you may have a great deal of divergence
from State to State, and on that I suppose you would do statistics, wouldn’t you? Or the legislature would.
required says:
The right at issue is the ownership of guns, not the right to shoot them at innocent people. Ownership of guns, like speech, does not directly kill people, even though both sometimes increase the risk that people will be killed at some point down the line.
A distinction without a difference, the right to speech is not the words themselves, it is merely the right to utter them.
June 28, 2010, 10:42 pmAllan Walstad says:
Throw-away rhetoric, reminiscent of the discredited left-liberal finger-waving about how concealed carry permits mean wild-west shootouts. Carrying of arms by whom puts whose lives at risk? Violent criminals put lives at risk and don’t obey laws against carrying firearms. Carrying of firearms by permit-holding law-abiding citizens is something else.
June 28, 2010, 10:46 pmtheobromophile says:
I don’t mean to be flippant, but isn’t it a moot point? The Founders were well aware that guns killed people (although it was probably harder to hit someone back then, it was also harder to survive a gunshot wound), but put the Second Amendment in the Constitution anyway. The balancing of various upsides and downsides to gun ownership (one other upside that Prof. Somin did not mention is what Judge Kozinski called the “doomsday provision”, IIRC, of allowing citizens to fight a tyrannical government) is already written into the Constitution.
I could understand balancing and such with “cruel and unusual punishment”, as the latter term could plausibly be interpreted to mean that the Justices should examine modern mores, and the former, to psychological and physiological research about the effects of various punishments on the body and psyche. I’m not saying that any of those things are the perfect way to go about Eighth Amendment analysis, but at least it makes some logical sense to interpret that clause in light of science and social science research. The Second Amendment, not so much.
June 28, 2010, 10:46 pmAllan Walstad says:
Oh geez. The right to arms is not the arms themselves but merely the right to have them for defense. Having them does not kill people. Using them to kill people, other than in justified self-defense (or if you work for the government) is illegal.
June 28, 2010, 10:52 pmShelbyC says:
But it’s not like putting other’s lives at risk is some downside of the right, it’s precicely the point of gun ownership. If gun ownship didn’t put lives at risk, it wouldn’t be protected in the Constitution. The framers knew that they were protecting the ability of people to kill each other, when necessary.
June 28, 2010, 10:57 pmShelbyC says:
The distinction between the right to own firearms and the right to shoot firearms at innocent people is a distinction without a difference? Are you sure you meant to type that?
June 28, 2010, 11:02 pmrequired says:
The reductio ad nauseum we are heading towards shows why I think the argument is poorly thought out. Arguing that firearms causing harms directly equates with speech being associated with harms indirectly just doesn’t pass the sniff test. It is not that a good argument cannot be made, one hasn’t yet though, an example argument:
Comparing the 2nd amendment right to bear arms with the first amendment right to speech can lead to the argument that just as certain restrictions on the use of speech (fighting words &c) can pass constitutional muster while preventing the harms caused by harmful use of speech similar restrictions on the harmful use of firearms (shooting innocent people) can pass constitutional muster while being as effective at preventing the harms.
June 28, 2010, 11:18 pmKazinski says:
I think Scalia is being purposely dense here. Rights that are important to progressives are much too important to be left to a statistical test. Rights that are important to conservatives are too insignificant to be settled by statistics, mere speculation about possible harm is sufficient to judicially override the founding fathers and over 200 years of history.
June 28, 2010, 11:22 pmmatt says:
The second amendment doesn’t say anything about guns specifically. It mentions “arms” in general. Yet, you already can’t own any kind of weapon you’d like, and you already can’t own any kind of gun you’d like. So, gun people: either you should object to both of those rules and insist that anybody should be able to own any kind of weapon they’d like, or you should accept the ability of the government to ban certain categories of weapons without violating the 2nd. And if you accept that, why can’t the government then ban all categories of firearms – provided that citizens still have the right to bear arms of some sort – without any constitutional problem.
Since the militia thing is pretty much a historical anachronism, the “self defense” argument is probably the most compelling thing coming from pro-guns types. But you don’t need a gun for self defense; there are plenty of other perfectly useful alternative tools (such as mace or tasers, etc). So, we could allow people to arm themselves for their own protection without allowing them to have lethal handguns (just like we don’t allow them to plant landmines in their front yards, mount artillery on their cars, or otherwise equip themselves like the main character in a first person shooter). Here’s a friendly compromise: What about banning “real” guns and allowing some sort of pistol alternative that only shoots non lethal rubber pellets of something?
June 28, 2010, 11:29 pmRoger McCandypants says:
I think you’re the one with the argument that doesn’t pass the sniff test. Your invocation of the notion of “equating” is nonsense. The principal underlying the comparison is the notion that the exercise of the right leads to harms. You haven’t set forth any explanation for why we should bother to make a distinction between direct and indirect consequences. As long as we’ve decided to worry about consequences when determining the limits of a right, it doesn’t matter whether those consequences are direct or not. Bad consequences are bad consequcnes regardless of whether the bad comes after one step or six.
June 28, 2010, 11:31 pmNunzio says:
Justice Breyer should just let the police kick in the doors of people in high crime areas, stop them on the street, and pull over their cars to search for guns. Most of the violent crimes in Chicago and DC are committed in certain neighborhoods. This would save a lot of lives.
June 28, 2010, 11:31 pmStasik says:
Statistically speaking, the 13th & 14th amendments have directly led to many more deaths than the 2nd amendment can possibly aspire to (just look at the crime rates and demographic makeup of the prison population). Not that any Justice would have the cojones to answer the libs’ ridiculous argument w/an equally ludicrous one, as above.
June 28, 2010, 11:33 pmKazinski says:
It’s telling that there isn’t any argument, in the comments here at least, or even in the dissents about what the original meaning intended with the 2nd, or 14th amendment. Just arguments of why it should be ignored. If it is such common sense that guns are different why not propose an amendment to the Constitution to repeal the 2nd, or modify the 14th so the 2nd is not incorporated? Isn’t that how it is supposed to work? The 18the amendment was determined to be unworkable, and no longer wanted, so it was repealed by the 21st amendment, that is the proper Constitutional procedure. That is if you have the votes, otherwise quit complaining about the people exercising their god given, and constitutionally confirmed rights.
June 28, 2010, 11:46 pmAllan Walstad says:
“required,” I don’t think anyone doubts that restrictions on shooting innocent people can pass Constitutional muster. But leaving out that parenthetical phrase in your comment, you seem to be saying just what many or most of us promoting gun rights have been saying all along, namely, that in seeking limits on the right to bear arms you should treat 2A with the same respect that you would treat 1A and other provisions in the Bill of Rights.
June 28, 2010, 11:55 pmDangerMouse says:
Liberal Judges want to rule, and blog commenters want to comment. I can excuse the commenters who want to entertain this stupid idea. But people like Breyer are despicable because in their effort to cut down the Second Amendment, they end up writing idiotic arguments designed to destroy substantive rights. Foolish, stupid, idiotic man. He is pathetic. He is actually making a case to limit substantive rights clearly written into the Constitution because he doesn’t like the outcomes. It reminds me of this:
June 28, 2010, 11:58 pmJmaie says:
But you don’t need a gun for self defense; there are plenty of other perfectly useful alternative tools (such as mace or tasers, etc).
Against fists or knives, perhaps. Against those carrying guns, not so much.
June 29, 2010, 12:09 amAllan Walstad says:
matt:
One problem with that is that banning real guns will not take them out of the hands of violent criminals. See, in case you hadn’t noticed, criminals don’t obey laws. As with all gun control laws that ban or discourage private gun ownership, the result is that criminals are safer and the rest of us are less safe.
And by the way, the militia is not an anachronism, but the point is moot for the purposes at hand. Individuals have a right to possess effective means of self-defense, including handguns, now fully recognized by the Supreme Court. If you have a problem with that, methinks you just have a problem. Try therapy.
June 29, 2010, 12:10 amAllan Walstad says:
DangerMouse: Cool quote.
June 29, 2010, 12:12 amXD45ACP says:
And with that, let’s stop feeding the troll named “required”.
June 29, 2010, 12:17 amrequired says:
I’m not certain how to respond. In terms of the law, causation is a big deal and distinguishing between direct & indirect (proximate) causation and determining the exact nature of indirect causation tells whether or not a crime has occurred and (often to a different standard) whether or not a tort has occurred. Distinguishing the nature of causation is very important and you cannot just say that all paths leading to harms are equal.
June 29, 2010, 12:26 amLarryA says:
Obviously we need to immediately ban the carrying of guns. Starting with the SCOTUS security detail.
We’ve been running the states-have-different-gun-laws experiment since the 1970s. The outcome is blatantly obvious. Legal gun ownership doesn’t increase crime. Shall-issue concealed carry doesn’t increase violence. Gun control completely fails to reduce either.
Then we can look worldwide over the last century, where we quickly discover that most gun deaths are at the hands of people working with or for governments, with the vast majority of those deaths occurring among disarmed populations.
Sure. Right after we all agree that law enforcement officers should have the same limitations.
Believe me, if there really was a Star Trek phaser that could be set on “stun” to allow for successful non-lethal self-defense, I’d be carrying it instead of a Glock. So would all the cops.
About half of the U.S. law enforcement agencies employ Tasers. The usual protocol is to have one officer with the Taser, and one or two backup officers with guns drawn.
You mean Project Exile?
June 29, 2010, 12:29 amrequired says:
I have no problem with right to keep and bear arms and never have had one (well at least not since I reached the age of speech), what makes you think that? I merely have a problem with the one portion of Ilya’s argument comparing free speech with the right to keep and bear arms not being developed. It is not that there is no argument to be made, but what is given in the original is a simplistic equivalency.
June 29, 2010, 12:45 amDilan Esper says:
But the really big skeleton in this particular closet is freedom of speech. Political speech and organization by communists, Nazis, racists, radical Islamists, and others has led to vastly more preventable deaths than private ownership of handguns. If the Russian Provisional Government of 1917 had suppressed the Bolshevik Party (as it could easily have done at various times during that year), millions of lives would have been saved.
This is quite speculative. (1) You don’t know if the suppression would have worked– often times suppressing speech turns people into martyrs for freedom. (2) You don’t know how bad the Provisional Government would have been. For all you know they might have ended up being just as repressive as the Communists did. (3) You can’t really view Russia in geopolitical isolation. Perhaps Hitler would have honored a pact with a right wing Russian government, as opposed to the hated Communists. I suspect the results of that would have been very bad indeed.
June 29, 2010, 12:53 amAJK says:
As opposed to talk of the consequences of lifting the Chicago gun ban?
June 29, 2010, 1:06 amyankee says:
It’s all particularly speculative since no ban on all guns is at issue in this case. What’s at issue is a total ban on handguns and certain registration requirements for other firearms. The total ban on handguns is sure to be struck down, but which of the registration requirements will survive is unclear.
There are also a lot of things you can do to restrict handguns short of a total ban. What restrictions Chicago will ultimately be allowed to do is anyone’s guess, though Anthony Kennedy’s guess is the only one that matters.
June 29, 2010, 1:59 amcustard says:
Possibly one of my favorite quotes of all time. A Man for All Seasons probably did more to inspire my respect for the rule of law than anything.
June 29, 2010, 2:02 amjack burton says:
Those who pushed the 18th Amendment had dreams of utopia. Get rid of demon rum and the world will be a better, safer place. It didn’t work out as they had planned.
So what eventually happened? American society, knowing full well that alcohol existed for the sole purpose of getting people drunk… that many weak-minded people would misuse alcohol… that homes would be lost, children abused, jobs lost, lives lost, tens of thousands of more car wrecks, and Bowery Bums roaming the streets, still passed the 21st Amendment giving back to Americans the individual freedom to choose what they would do.
Our fathers and grandfathers knowingly considered and accepted the “collateral damage” well worth the price of freedom.
How can we do any less?
June 29, 2010, 2:08 amyankee says:
Hooray for tautologies!
On a more serious and less sarcastic note, restrictions on guns keep them out of the hands of criminals by making them more expensive and difficult to obtain. At the margin, this will prevent some would-be gun-toting criminals from obtaining them. This won’t be perfectly effective in preventing criminals from getting guns any more than laws against murder are perfectly effective in preventing murder, but it will prevent some criminals from getting guns.*
Gun restrictions also prevent criminals from getting guns by preventing otherwise law-abiding people from turning into criminals. An otherwise law-abiding person who would be lead to commit murder with a gun as a crime of passion (say, a man who discovers his wife in bed with another man) may well be deterred from violence if he has to fight hand-to-hand rather than just grabbing a gun and shooting it.
Of course, gun bans also reduce the risk associated with crime by making it less likely the victim is armed, which in turn induces more crime. But that is a different point.
I am not a supporter of gun control laws (I don’t really care about this issue at all) but this “gun restrictions do nothing to keep guns out of the hands of criminals” argument is silly.
*This effect is probably very small in a single small area like the city of Chicago, where guns can be carried across the city limits without restriction. A nationwide gun ban would do much more to keep guns out of the hands of criminals since they’d have to be manufactured in secret or smuggled across the border.
June 29, 2010, 2:30 amStephen Lathrop says:
Wait a minute. Seems to me that for some time we have been operating on the assumption that free speech has a net positive effect. If you want to argue in terms of innocent lives, free speech means fewer innocent lives lost. Does anyone have logic or evidence to the contrary?
The situation is not so clear for guns. Common sense understanding of depression, accident, passionate anger, intoxication, mistaken identity, deadly resolution of otherwise non-life-threatening situations, increasing the supply of guns available to criminals, all suggest that having more guns around may increase the toll of innocent lives lost—even after innocent lives protected are subtracted from the total.
Statistical evidence correlating state-by-state gun prevalence with gun homicides seems to lend some credence to the common-sense supposition. I recognize that there are arguments on both sides. I don’t find the statistical arguments of gun rights advocates at all convincing, however much I sympathize otherwise. And as a long-time hunter and 9-time serial gun owner I do sympathize, but not without limit.
Of course, the right to keep and bear arms ought to be respected. Its political purpose to arm citizens against tyranny fully justifies it, and justifies some collateral damage as well. But speech and gun rights are different. Gun rights are ABOUT taking lives. We all understand that some situations justify that, others don’t. The notion that you can’t burden gun rights with the reasonable intention of reducing innocent lives lost gets no support from the notion that you can’t burden free speech. Speech is NOT about taking lives, even if it might lead in some cases to that result.
If you put the political argument aside, and argue instead for the self-defense right of gun bearing, then you really do expose yourself to a reasonable statistical argument. Given convincing statistics to make the case, how could the right to protect innocent life be furthered by measures which can be shown to have the opposite effect?
Even if the net effect shown statistically turns out to be positive, why shouldn’t any collateral damage be reduced? Even if the principal issue turns out to be the political one, why shouldn’t collateral damage be reduced? The questions answer themselves. Reasonable restrictions to protect innocent life make sense for gun rights in a way that they do not make sense for other rights.
The intention ought to be to maximize the benefits the right is designed to protect, and minimize the damage necessary to secure the right.
June 29, 2010, 3:32 amBrett Bellmore says:
I agree. Even it this were a valid argument, it’s an argument which should only be advanced by somebody who is writing a constitution, not by a judge. The decision as to whether this right was prudent has already been made, and nobody asked Breyer’s opinion.
June 29, 2010, 6:07 amGlenn Bowen says:
Living in a free society involves risk.
June 29, 2010, 7:31 amPersonFromPorlock says:
“You provide the pictures and I’ll provide the war.”
June 29, 2010, 8:19 amStan says:
This really is a logic fail. Speech that takes lives, eg. fighting words, conspiracy to commit murder, accessory, treason, tortious speech, is not protected from punishment. It’s also unpersuasive because Somin can’t come up with a single example from the United States.
June 29, 2010, 8:38 amHouston Lawyer says:
Yet Justice Breyer doesn’t seem to have an issue with the 1 million or so lives terminated each year through abortion. So cry me a river for the hand full of people killed by law abiding citizens each year with fire arms.
June 29, 2010, 9:13 amPLaw says:
You got a cite to back that up? I can think of a couple outliers right off:
1) Assuming places with more lax gun laws have more guns than places with stricter gun laws, compare say, Vermont (virtually no state restrictions on gun ownership) to Washington D.C. (lots of restrictions). I’m pretty sure Vermont has fewer homocides per firearm or per capita.
2) Australia is a great example of what happens when firearms are banned. In 1996, Australia banned all handguns and a number of “quick-shooting” long-guns (e.g. semi-autos, pumps, etc.). After the gun ban went into effect, violent crime went up.
Everytime a gun restriction is removed, people cry that blood will run in the streets because more guns means more violence. It is a “common-sense supposition.” Reality, however, shows such cries are (almost?) always wrong.
June 29, 2010, 9:15 amDon says:
And, murder, armed robbery, etc. are already against the law, and no one says that committing a crime using a firearm should not be punished.
All that most gun rights supporters like myself say is that the government should not be able to prevent me from purchasing, owning, or using a firearm (as long as I use it in a legal manner).
You are correct, speech that takes lives can be punished after the fact. Similarly, use of firearms that takes lives can be punished after the fact as well. However, just as you cannot ban the purchase of computers since they could be used to commit treason, create tortiuous speech, fighting words, etc., nor should you be able to prevent the purchase or posession of firearms.
To not see that to me is the true logic fail.
June 29, 2010, 9:34 amyankev says:
Assuming of course that you are not outnumbered, outweighed, outmatched in size, strength, ennurance, coordination or fighting skill. Guns were not called equalizers for nothing.
June 29, 2010, 10:03 amyankev says:
Ah, but that was before the federal governmnent recognized its responsibility to provide health care for everyone who lives in the United States, and al U.S. citizens living abroad. Next time we won’t ban alcohol by constitutional amendment, but by regulatory fiat in order to keep health care costs down. We haven’t learned all that much in the past 90 years or so.
June 29, 2010, 10:11 amGaunilo says:
Does this line of reasoning remind any else of the logic used in censorship and pornography cases in the past? I can’t remember the exact wording, but the gist was that nothing should be allowed that would corrupt the “weakest sisters among us.”
If we can’t allow words that could damage the weak, we can’t allow guns if they would allow the most unstable among us to do harm.
June 29, 2010, 10:13 amJoe Hooker says:
Back to the history books, professor! The federal government did restrict speech in the South well after the end of the Late Unpleasantness. In one of the more notorious examples a newspaper editor, William McCardle, was arrested by federal troops and hauled before a military commission in 1869, well after the end of the shooting. Since Congress then suspended habeas corpus, he had no recourse. Heavy-handed actions like this simply increased white resentment of Reconstruction. Did it save any lives? Doubtful.
June 29, 2010, 10:16 amKatahdin says:
I note that much of the local violence seems to be associated with drugs, and I suggest a nationwide ban on recreational drugs. That way criminals won’t be able to obtain drugs to sell, because they’d have to be manufactured in secret or smuggled across the border.
And if we think the U.S. has problems, look at Mexico – you’d think if any country would outlaw drugs and restrict private ownership of firearms, they would.
June 29, 2010, 10:19 amtheobromophile says:
It would also be a consideration for Congress or a constitutional convention, if they were trying to amend the Constitution. It’s valid for countries that have constitutions which do not speak to keeping and bearing arms. I just don’t think – and I’m glad to see that others join the opinion – that it’s a valid inquiry for a member of the Supreme Court.
June 29, 2010, 10:23 amAmphipolis says:
Has Breyer become pro-life?
June 29, 2010, 10:30 amAllan Walstad says:
yankee:
A lot of empty ridicule has been directed at “When guns are outlawed, only outlaws will have guns.” That it’s a tautology, i.e., a matter of pure logic, doesn’t make it any less relevant. If violent criminals break the law to get guns, then making guns illegal only removes a prime instrument of self-defense from the law-abiding.
My comment, to which you were responding, specifically had to do with banning guns, not restrictions in general. It’s conceivable that some sorts of restrictions might be beneficial, although the track record of gun control laws offers little encouragement in that regard. The NRA has always supported permanent illegality of gun possession by adjudicated violent felons; if they’re caught with a gun, they go to jail. That’s a restriction, and one with which I do not completely agree. It ought to be possible for someone to live down their past. If you rob a liquor store at 21, serve your time, and stay out of trouble, the law shouldn’t require you to be defenseless as an elderly great-grandparent of 75 years age.
June 29, 2010, 10:41 amrequired says:
Really, if I say that phrase some of the people who hear it will die merely from the hearing? How could you write such a thing knowing that it could kill people? If you want to argue that my assertion is incorrect look for an example of someone who had a heart attack or stroke or similar upon hearing surprising news, “and the winner at two-hundred-and-thirty-seven-to-one is …” is a phrase which might actually kill someone.
June 29, 2010, 10:50 amJaimeInTexas says:
At what point, in these uSA, then, did gun ownership, possession, and bearing became the danger that liberals (for some unknown reason to me) claim it to be? Why is the 2nd amendment, according to liberals, the only exception in the Bill of Rights, that only the 1st, 3rd through 10th apply to individual rights?
June 29, 2010, 10:58 amTexEd says:
A minor mystery (at least to me) is why the Chicago Tribune has published each week the weekend shooting/death record. Are they fighting with Daley, do they favor gun rights or is there another reason? As part of the captive media, the only reason I can think of for the Trib to publish this data (“56 shot, 3 dead, no one in custody”) is the numbers are much, much worse. Why would the CPD even release such information for publication? And, if it’s release is required, why wouldn’t Chicago do to it what they will do to gun “permits” (if it is a right, why do I need a permit?), make it so administratively burdensome that it will not happen?
June 29, 2010, 11:39 amrb1971 says:
I’m in favor of sensible gun control, and even I find Breyer’s argument unpersuasive in the extreme. As noted by others, certainly freedom of the press in a time of war could have a much more direct effect on a higher number of people (civilians am military), and on an individualized basis things like warrant requirements would be implicated as well.
Heck, even not being required to bunker troops in your house could cause them to die of exposure, right?
June 29, 2010, 11:40 amArthur Kirkland says:
Many resisted this argument during the years-long panic when government secrecy, surveillance, detention and torture (and similiar issues) were being debated. Is it making a comeback in some circles?
June 29, 2010, 11:58 amArthur Kirkland says:
If anyone knew that, they knew wrong. Moderate alcohol consumption is more healthful than abstinence; moderate drinkers live longer and more healthful lives than teetotalers. Drinking one or two servings of (preferably good) beer or wine is one of the better practices one can adopt.
June 29, 2010, 12:03 pmmatt says:
So what, then, if they all pull out their own shiny new handguns? Do you need a grenade or a machine gun to “equalize” the situation? We could let the personal arms race continue like this ad nasuem, or we could chose to draw the line somewhere we consider reasonable. The point on contention is which side of the line handguns are on. Maybe I’m assuming too much: most pro gun people do have a limit on what’s reasonable, right? Where do you draw your own line for personal weapon ownership? How much is too much? I’m curious.
I agree with you guys when you say that criminals might be emboldened if they know that the target has no gun. But likewise, people with guns might be emboldened if they know they have gun in their pocket – they might be more likely to engage in dangerous/reckless behavior. Both of these effects are worth consideration. Criminals would probably prefer a world in which they didn’t have to worry about getting shot and killed by their victims. But wouldn’t we all prefer a world in which people didn’t shoot each other over arguments and altercations, etc?
Furthermore, gun control laws seem to work well enough when it comes to keeping small machine guns and other such weapons out of ordinary criminals’ hands. Why should handguns be any different? If criminals are rational types, they could be discouraged by laws that, for example, punish robbery with a gun more severely then robbery without one.
If you want to argue that that kind of deterrence doesn’t work, go back to a world with guns: if criminals are not rational agents, then why would they think about whether or not a potential victim has a gun? They won’t conduct a detailed cost/benefit analysis that considers the probability that their victim has a gun in the first place. But, hell, maybe some criminals are hyper-rational, in which case criminals will just get their own guns… Is a world where most criminals and some “normal” people have guns really better than a world in which almost no-one has a gun? (I’ll even allow that some criminals might somehow get their hands on guns – but they would probably be those involved in serious organized crime and they’d probably use their guns to shoot mostly other criminals, and not ordinary citizens. That’s how it goes down in Japan anyway.)
Finally, Allan, have you ever “had a problem” with a Supreme Court ruling? Did you seek therapy on those occasions?
June 29, 2010, 12:12 pmGordo says:
Just as we shun those who hide irresponsible, amoral, even evil behavior behind a “right”, such as the right to free speech (see, e.g. Bolsheviks, Nazis, etc.), so we may have to shun those who hide irresponsible, amoral, even evil behavior behind a 2nd amendment right to “bear arms.”
This means:
1) shunning neighbors who irresponsibly display firearms in their homes, by keeping your children away from their children and posting a sign in the public right of way in front of their homes, “warning, irresponsible gun possession inside this home.”
2) verbally confronting morons doing “open carry” in their nearby Starbucks, asking them pointedly (assuming they are male, which they, surprise, surprise, almost always are) what sort of sexual inadequacies they are trying to cover up with their holsters.
3) using your first amendment rights to loudly and confrontationally picket gun shows.
Any other ideas?
June 29, 2010, 12:37 pmCalAttnyKen says:
Magna carta freed men, Sam Colt made ‘um equal.
You dont bring an “alternative tool” to a gunfight, son.
June 29, 2010, 12:52 pmKen Arromdee says:
Gordo: Have you done this for Bolsheviks and Nazis yet? If not, why?
(I might also add that Phelps doesn’t picket funerals by going right in the face of the people at the funeral; he’s not allowed to by law. He keeps his distance. You don’t generally have the right to force an unwilling audience to listen to your speech.)
June 29, 2010, 12:54 pmiowan2 says:
I have not seen any talk about the existance of the 2cnd. To protect myself. But not from a person. To protect myself from the government. All most everyone ignores the only single reason forr the 2cnd. To protect the people from the government
June 29, 2010, 12:56 pmRoger McCandypants says:
That’s a shallow response that comes close to a non-response. The fact that, for instance, tort law is concerned with direct and proximate causes is irrelevant.
Remember, you want to talk about consequences as a limiting principle on constitutional rights. Tell me why we should smuggle in, for instance, tort law. Tell me why would shouldn’t simply evaluate consequences.
A death is a death regardless of whether it’s a one-step death or a six-step death.
June 29, 2010, 12:59 pmlgm says:
I have to quibble with this:
It is wrong both ways. First, the federal government could have stopped the suppression of blacks in the south by enforcing ordinary laws against things like murder. The period directly after the Civil War showed this. Second, given federal government tolerance of lawlessness against blacks (the KKK, etc.), suppressing campaign speech probably wouldn’t have made much difference.
June 29, 2010, 1:20 pmKatahdin says:
Let’s try a thought experiment: imagine, if you can, that you are a rapist or mugger. You are well armed – with a full auto M-16, say (we’re exploring the outer bounds here). You have a thing for blondes, and you followed a suitable lady home from the supermarket. You return at 0200 and jimmy a window, making enough noise that her miniature Pomeranian starts yapping its fool head off. As you head upstairs, she confronts you with a little pipsqueak of a gun – a lousy 38 Special snubnose. Now, you spend a lot of time at the range, you’re a great shot, and have a 30 round magazine. She is trembling so bad she’ll probably miss, but determined enough that she isn’t going to surrender without a fight.
Do you head up the stairs? Let loose a long burst in her direction?
Right. The bottom line is that, unless you’re into necrophilia, your plans for the evening are way off track. You can kill her, but that’s not what you want. You can charge up the stairs, but her marksmanship problem gets easier the closer you get, and getting hit will be really awkward to explain at the ER later. And while you think about things, the clock is ticking – she may have already called the police.
And I think, in the real world, real crooks do the math, and leave in a hurry.
If crooks were rational, they wouldn’t be holding up 7-11s. It pays worse than the minimum wage.
Get your permit and start carrying. Get some training. Consider that your opponent gets to shoot back. I think you will find the gun in your holster makes your more cautious, not less, because you’ll be more aware of how quickly and badly things can go wrong.
As for the ‘shoot each other over arguments’, the experiment has been tried, over and over, in 40 odd states so far, and an upsurge of shootings hasn’t happened even once. Why do you think CCW in some new state will be different?
June 29, 2010, 1:21 pmyankev says:
I choose not to draw the line on the side that favors the strong over the weak and the young over the elderly.
That’s negotiated with my wife on a case by case basis depending on the state of our finances at any given time. Which is as it should be.
June 29, 2010, 1:24 pmVirginian says:
The problem with your argument is that this stuff just doesn’t happen. We have run this “experiment” for 25 years. And guess what…the blood has not “run in the streets” as predicted by the anti-gunners.
June 29, 2010, 1:25 pmVirginian says:
“Many” believe that (1) the federal government’s war powers are much, much greater than its domestic law enforcement powers, (2) combatants captured in a war zone have fewer (as in none) constitutional rights than, say, citizens of Chicago, and (3) much of what you call torture is not torture.
June 29, 2010, 1:32 pmjack burton says:
Yes… I am aware of that… I was merely poking a finger in the eye of those who claim that the sole purpose of a gun is to kill people. If they are going to acknowledge that booze has significally other important aspects then they have to do the same for guns (if they want to be consistent, which is not always a concern for gun controllers.)
June 29, 2010, 1:33 pmjack burton says:
Please allow me, sir, to express my deep admiration of the sexual appendage you are evidently able to deploy for self-defense in place of a gun. You must be very proud. I am certain every lady you know feels safer in your presence than with nearly any other man.
I admit that my own, personal penis is pitifully inadequate for self-defense purposes.
It appears that you would prefer that women should be left defenseless, since they are anatomically unsuited for it. Plus, it makes them so much easier for you to subdue.
It’s also apparently a true belief of yours that the elderly and handicapped, regardless of size, do not deserve the right to self-defense, since their wang-fu will likely be inadequate for a variety of reasons. You obviously think that we don’t need such human rubbish, anyway.
I admit, I’ve always found it disturbing that the police and military, being unable to find recruits of your mighty dimensions, instead must brand them as the puny weaklings they are by issuing handguns and rifles.
Congratulations to you again, and I am sure we will hear more of your exploits as you defend your self, your family, your neighbors, and your nation with your wee-wee..
I implore you to post the resulting news pictures.
June 29, 2010, 1:40 pmKatahdin says:
Longer than that – Washington state adopted a shall issue permit system in 1961.
June 29, 2010, 2:08 pmShelbyC says:
And they can post one in front of yours saying “Safe Home. No gun possession here.”
June 29, 2010, 2:19 pmArthur Kirkland says:
(1) The United States has not declared war in decades, which is unfortunate, because undeclared wars tend to proceed and end badly.
(2) How many of the Guantanamo detainees (let alone people kidnapped in Italy or other countries, or at JFK) were captured by American soldiers in a war zone, and how many were purchased from bounty hunters or accepted from score-settlers? The answer might be relevant to the question: How many detainees have been convicted of anything, and how many have been released without explanation?
(3) That should have been decided in court some time ago.
June 29, 2010, 2:22 pmArthur Kirkland says:
The analogy seems apt. Alcohol beverages are fine products which, because of its inherent risks, require special and sometimes intense regulation. Guns (and a number of other weapons) are, in my judgment, similar.
June 29, 2010, 2:25 pmVirginian says:
Thanks. I have always thought that Florida was the first one.
June 29, 2010, 2:32 pmVirginian says:
Thanks for the laugh. That was great.
I really get a kick out of people like Gordo. He believes that gun owners are incredibly dangerous and likely to snap at any time, killing dozens at the least provocation. But he is not afraid to “verbally confront” them.
June 29, 2010, 2:37 pmmiket says:
heh. The sign you suggest might work better than the security monitoring signs to inhibit burglaries and home invasions. And, at the same time, I would put up this sign to refer those wishing to break-in to a home you seem to approve of.
June 29, 2010, 2:54 pmmiket says:
That is so true. When I started carrying it was a very sobering experience. Even after having 40+ years of safe firearm experience, carrying a concealed weapon that were I to misuse in any way could have repercussions ranging from loss of the right to even own a firearm to death gave me extreme pause. I still carry and practice regularly, but my personal feeling is that if I ever have to use my pistol I had better be extremely certain that the circumstances justified even its display.
June 29, 2010, 3:04 pmMark Jones says:
And I’d reply, “My handgun is a penis substitute. If I could kill bad guys at 20 feet with my penis, I wouldn’t need the handgun. Any other stupid questions?”
Yeah, the relentless mocking of hoplophobes like you.
June 29, 2010, 4:05 pmLarryA says:
Any examples?
Britain passed a series of gun control laws starting in the late 1990s. They have “progressed” so far as to be banning pointy kitchen knives. Crime rate, way up. You can buy a 9mm semiauto on the London black market for less than you can get the same gun at a Texas gun show. Or you can simply rent it for the evening for much less.
Note that Britain is an island.
As for manufacturing, there’s a thriving underground firearms cottage industry in northern India. After all, it is 19th century technology.
So I presume you, like most obnoxious anti-gun people I encounter, don’t really think gun-owners are dangerous? It always amazes me that so many folks are perfectly willing to verbally assault me, thus displaying complete confidence that a gun-toting concealed handgun licensee won’t react the way they portray with their gun-owner stereotypes.
Visited Mexico lately?
Law-abiding individuals have the right to keep and bear anything law enforcement officers have regular access to. They specifically have the right to keep and bear current infantry small arms, as they would need if called up for militia duty. Ideally, they should be trained (well regulated) for militia duty.
My History of Concealed Carry. Florida was the first shall-issue concealed carry law where the media hit the fan.
June 29, 2010, 4:11 pmAllan Walstad says:
matt: If you’re still out there, sorry about the “therapy” barb.
As for all your hypotheticals, I agree with those who have pointed out that we have lots of experience with handgun permits, and the experience should sooth your concerns.
June 29, 2010, 5:00 pmPersonFromPorlock says:
Yes, but where there’s gun control there’s almost always ‘mace, taser, etc’ control. And knife, rock, and club control, too. This is because gun control isn’t about guns, it’s about the average American being an irresponsible fool who’s harmless only when helpless, a position that’s hard to square with her also being a responsible voter and a member of the sovereign People.
That’s why gun control is such an issue for Liberals: it’s the living embodiment of the contempt with which they view ordinary people.
June 29, 2010, 6:31 pmLeon from Lexington says:
This is the very thing that sours a lot of us to the legal profession in whole. You spend days chopping, dicing and pureeing it all down to the most infinitesimal and abstract point.
While all along we common folk with common sense ask the most pertinent question of it all, “What part of ‘shall not be infringed’ do you not understand?”
What is so hard about grasping those 4 words? Sheesh!
June 30, 2010, 12:16 amDoctor Gator says:
“In his dissent in McDonald, signed by three liberal justices, Justice Breyer argues that gun rights deserve little or no judicial protection at least in part because they put lives at risk:
“”Unlike other forms of substantive liberty, the carrying of arms for that purpose [self-defense] often puts others’ lives at risk…. And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.”"
Breyer is saying the 2nd amendment is unjust and should not be enforced. He is not saying that the majority miss interprets The Amendment.
June 30, 2010, 12:51 amSarcastro says:
The telepathis conservative strikes again? How will liberals plot and be all evil when their very secret contempt for ‘ordinary people’ is laid bare by these brave psychics?
June 30, 2010, 2:06 amSarcastro says:
Because the ONLY way to interpret A2 is as a blanket right to self defense. Anything else, and you’re evil like Breyer.
June 30, 2010, 2:08 amThe Redwoodman says:
Liberals aren’t evil. They just have contempt for the ability and wisdom of others in running their own lives. You don’t need telepathy. You can take a look at every initiative liberals care about. That’s why they love the welfare state. That’s why they love government run healthcare. They get to feel superior and moral by regulating how others conduct their affairs which liberals know they would screw up otherwise. The ability to defend yourself through the use of firearms of course is a problem. The only way this could be rational would be if those exercising that right were competent. As all good liberals know the common people are not competent. They need good hearted liberals to guide them in every aspect of their lives.
A good liberal needs to tell me how I get medical care, what foods I can eat, what methods of self defense are permissible, what kind of transportation I can use, whether or not I can smoke, what kinds of energy I am permitted to utilize and that an unborn child is actually a non viable tissue mass that can be thrown in a bio trashbag. It’s for my own good after all.
June 30, 2010, 5:57 amThe Redwoodman says:
But Sarcastro perhaps with the issue of the right to bear arms something else more fundamental comes into play. I’ll play telepath again for you and make this evil statement: Liberals hate gun ownership because they themselves feel so inadequate when it comes to self defense issues. Many have never handled a firearm. They wouldn’t know where to begin. Liberals regard themselves as smarter than the common man. How could it be that the common man knows how to defend himself and his familiy and a good minded liberal has to rely on others or become a victim? It is sooo unfair!
The old axiom goes that a conservative is a liberal that has been mugged. Sure it’s trite but it remains true. Liberals run from reality and its consequences for as long as they can. Unfortunately it ends up catching them eventually. If they survive many experience a change as was seen after 9/11. Liberals try to tell themselves that their ignorance and inability is actually a virtue. Only icky rednecks, soldiers and personal protective details for enlightened liberals carry firearms. Such people are ignorant and not good for much else. Someday a utopia will be ushered in by liberal ideas and such things won’t be necessary. Until then liberals will have to passionately defend the virtue in being a victim (as least as it pertains to others). It’s not so bad. Liberals live their entire lives that way and look how great they turned out.
June 30, 2010, 6:20 amcraig says:
Gordo says:
“Any other ideas?”
Sure. Euthanize leftist pussies like Gordo, for the good of the Republic.
Gordo would be quivering in his Birkenstocks if he ever turned his Prius into the 7-11 parking lot and came face-to-face with a ghetto gangbanger openly carrying. He would sooner wet himself than make comments about said gangbanger’s penis.
See, at bottom he knows the RKBA community consists of law-abiding citizens who do not pose a danger to him. He is liberated by this knowledge, and that’s why he’s a punk. He’s the exact equivalent (hell, he may be one of them too) of those atheists who attack all Christians as latent terrorists and Christianity as the oppressor of all that is good, but know better than to say anything about Moslems because they’ll cut off your head.
June 30, 2010, 8:50 amyankev says:
And more recently, breakable beer mugs and bar glasses.
June 30, 2010, 9:16 amSarcastro says:
The Redwoodman: speaking for liberals so they don’t have to! After all, they might provide reasons that aren’t venal for their positions, and we know that’s wrong – reasonable people can’t disagree with me, only neurotic cowards can.
June 30, 2010, 11:18 amThe Redwoodman says:
Sarcastro: Still sputtering and fuming in denial of the patently obvious! Liberals speak their desires all the time Sarcastro. Actions which trash individual liberty and responsibilty aren’t always obvious. However the last 18 months have proven that sometimes they are. Or perhaps you have a well thought out explanation as to how the policy initiatives of the American Left don’t stomp on the individual liberty of American Citizens? At least explain how the disregard of this administration and Congress to the clear wishes of the majority of Americans demonstrates some kind of respect for the ability of the common person to make decisions regarding their own affairs? Start with something easy like Obamacare.
July 1, 2010, 8:54 amLiberty Requires Risk | Think Tank West says:
[...] Related thoughts from Ilya Somin here. [...]
July 23, 2010, 3:25 pmConsistency | Think Tank West says:
[...] That’s not a consistent interpretation of the First Amendment, but Breyer’s record of consistency isn’t very good when constitutional rights may put lives at risk. [...]
September 16, 2010, 1:40 pm