I'm is favor of reasonable gun laws and regulations. So when are we going to repeal the large number of unreasonable ones, like the prohibition of concealed carry in Kansas?

Yours,
Wince

I'm curious when we'll actually see some objective arguments from either side of the table.

Kopel cites 2 articles, both written by himself. While self-citation works for the judicial system, there is no objective value to your own writings.

Second, the first article cited also is devoid of any sources. It's merely a series of self-serving conclusions with no objective data to back it up. Example :

In fact, she's been a gun control worker most of her adult life, starting in 1973. This difference is important. If Handgun Control used the earlier date, it would decrease Mrs. Brady's credibility.

Why would this decrease credibility? Maybe she became a little more enraged when her husband took one in the head, but because she may have advocated gun control since 1973 (Can we have proof here?) seems like no reason to discredit her. The conclusion seems to lack support. And isn't this the very sort of technique that the NRA likes to use too? tell only part of the story.

Finally, while I find absurd equating 20 guns with 1000 rounds of ammunition as well, I see no direct quote from Brady II stating as such. That said, I didn't search the internet for the text since isn't that what blogs are for? Make an assertion, with a link to the source that we're asserting?

Great summary. It made me hate gun control nuts all over again. :)

DJB said: "Great summary. It made me hate gun control nuts all over again."

Funny, this post had quite the opposite effect on me. It made me realize, once again, how badly our gun regulations have been trashed in the last several years. I don't "hate" gun nuts or opponents of gun control, but I'm certainly frustrated and depressed when confronted with the lengths they will go to to prevent any reasonable debate or effort on gun regulation.

Re: Gun Registration

Let me bottom line it for those who think this is a “reasonable” restriction.

The history and the rhetoric of the gun control movement has shown pretty conclusively to the RTKBA movement that mandatory registration – no matter what promises, assurances, or guarantees to the contrary are offered now - is simply a tool to be used in the future for gun confiscation. Period.

Gordon and MSG - What part of the 2nd Amendment has been repealed which allows for government regulation of the possession and transportation of arms of any type? Sorry, but no "historic compromise" is possible. Period. The gun owners would be doing all the compromising, and therefore have no incentive to bargain away their rights.

Dilan Esper - The plain wording of the Constitution itself is enough to justify Kopel's concerns regarding the many clearly unconstitutional gun laws now on the books. If we can't keep our enumerated rights, how the devil are going to keep our unenumerated ones, with or without data mining?

IIRC, the Brady bill mk one was sold on the premise that, "this is all we want, honest!", and the ink wasn't dry on it before the already formulated Brady bill mk two surfaced.

*Sniff* anyone else smelling boiled frog?

I'm certainly frustrated and depressed when confronted with the lengths they will go to to prevent any reasonable debate or effort on gun regulation

You want to strip us of our rights. Why should we be "reasonable" about that? Gun control curtails rights and gives us nothing in return -- not reduced crime, not saved lives, nothing.

The past century has just been one case after another of "oh, be reasonable, just give up a few more gun-related rights and then we'll be happy". Enough, already. It has been clear for decades that the gun control "debate" will never end until guns are entirely banned and the second amendment entirely ignored. Why be reasonable in the face of that? You can't reason with a person whose goal is to strip you of your rights. You can only tell him "no".

Er, "don't know how to link ..."

I just have one question for people advocating restrictions on personal self defense tools. I've been asking it for years and not one person has given me an answer. "Reasonable" gun control? That's putting your bullets on the target so the holes are only touching instead of completely overlapping.

OK, everyone. It is called the Bill of Rights. But, read it. It is restrictions on the federal govt. The 2 cnd restricts, bans, forbids, the govt from taking arms from you and me. The bill of rights defines our rights by banning the govt from taking action to usurp the enumerated powers of the people.

I got a compromise for you. Register each and every abortion. I'll register my gun. course, I got the constitution and you got....What?

Got to disagree Joe. Your description of "Reasonable Gun Control" is clearly clouded by your delusions of what is and is not acceptable in a civilized society.

Rather, I would say reasonable gun control is putting your bullets on a target so that they are all overlapping rather than all going through a single hole. For the holes to be "only touching" suggests much more training and practice is required.

> why can't there be a reasonable debate in this country about what degree of restrictions and regulations are appropriate?

The gun control movement often says "let's try this, and if it doesn't work, we can repeal it" as part of their campaign for the flavor of the month.

Feel free to cite any example of the gun control movement supporting the repeal of a gun control measure that did not reduce crime.

Heck, cite any of the so-called "moderates" doing so.

Yes, there are examples of gun control measures pushed by gun folk.

If you honestly want to try different kinds of gun control, you must be willing to undo things that didn't work.

Tim

What other enumerated protections from the govt are you willing to regulate? Speech? Maybe the govt can quarter troops in my house as long as its regulated. Can we regulate The free expression of religion? (oops, guess we alredy do that)

Restrict or regulate? You can define it...But I do not want elected pinheads deciding it for me.

RKV:

Fortunately the tide is turning. I note the sunset of the so-called "Assault Weapon Ban" (aka "the unconstitutional ban on military looking semi-automatic firearms") with pleasure.

As a gun rights absolutist, do you draw a a line anywhere? Are limits on bazookas unconstitutional? Surface-to-air missiles? Dirty bombs?

I detect ACLU logic here. And I'm glad we have the ACLU around to remind us about our liberties. I just happen to also think they are wrong most of the time and carry things to an illogical and absurd extreme.

Gordon - I do have and idea about gun control and who should not be allowed to exercise their rights under the Constitution which I consider to be reasonable. How about we restrict the rights of convicted violent felons to own arms, after due process of law - namely conviction by a jury in a court with access to council and right of appeal. That seems reasonable to me. But we do that already you say? Yep. Otherwise we take an enumerated right and make it into a privilege, which it isn't, at least according to our written constitution. Don't like what the Constitution says? Pass an amendment to change it - that is the correct and legal process. Its been done before and will be again, I dare say.

Gordon;

Go back and get some history. As in, why is the 2cnd ammendment in the Constitution? There is only ONE reason. Just ONE. To give me the ability to protect myself from the GOVERNMENT!

Go crazy. find another reason. It just don't exist.

corngrower/RKV:

You're not going to be able to protect yourself against the government, repel an invasion or suppress an insurrection with the guns people believe you have a right to own under the 2nd amendment (even assuming the 2nd amendment provides an individual right and you include automatic weapons in the definition of "arms").

The government has tanks and APCs, planes and laser-guided missles, and other sundry weapons (including WMD) that you don't have and never will. With the weapons you have, you may slow them down for 5 minutes if they come after you, but not for much longer. Remember Waco? How long did they last once the government took off the gloves? The same applies to anyone who would get past the military in an invasion. Perhaps you could help suppress an insurrection with your M16, but I'm fairly confident that the Guard and the Army won't need your help.

So what really is the purpose of the 2nd amendment circa 2005? The doomsday scenario of keeping the federal government at bay when the black helicopters start to fly makes no sense in a world where the federal government has state of the art military equipment, and you have a sawed off shotgun.

I neglected to mention, in response to corngrower's posts about the bill of rights, that he conveniently forgets the language in the 2nd amendment about a "well-regulated" militia. Even if "militia" includes every able-bodied person, if we have a right to (well) regulate the militia, doesn't that include the right to require training, registration, etc. for all such persons? Why wouldn't it include the power to prescribe what weapons they could or could not carry?

The 2nd amendment is at war with itself. At worst, from the standpoint of those of us who advocate sensible regulation of guns, "well-regulated" cancels out "not be infringed" and what you have left is an inkblot on the constitution that reads like a rorschach test. At best, from the standpoint of the gun owner, it prohibits only confiscation and would allow just about anything else.

The most interesting part of the debate over the meaning of the 2nd amendment is not the words of the amendment, but the fact that the NRA and likeminded organizations never seems to challenge any regulation on the basis of the 2nd amendment. Their inaction validates the theory that they know they stand on shaky ground when making their legal claims.

Case in point: The voters of San Francisco (or at least 58% of them) passed an ordinance in November 2005 through voter referendum banning handgun ownership within city limits. The ordinance requires all gun owners to surrender their weapons to police by April 1, 2006. The ordinance was predictably challenged within a day or two by a group of gun-rights organizations, but only on statutory grounds [link]. Now, admittedly, there is an argument that the ordinance violates state law which prohibits local regulation of guns. That is why I voted against it: it will cost a lot to defend and will almost certainly be voided. But a sensible litigation strategy by the NRA would also allege a 2nd amendment violation as a backup argument. Yet, no such argument was made. Why not?

Shapiro - there is so much wrong with your reasoning that it is hard to know where to start. In fact it is probably a waste of my time given your demonstated lack of logic and weak grasp of history, but I will at least make an attempt. You assume (falsely) that I limit the arms which persons have a right to own to hand held automatics. I don't. You do know what a letter of marque is? See Article 1 Section 8, US Constitution. Please don't feed me any falacious arguments about needing a letter of marque to equip a warship with canons. That was not the historical practice at the time of the founding, which ought to be enough to clarify what was intended by the 2nd Amendment. And yes there was (historically) a naval militia. Turns out there was one during WW2 also. As to the 2nd Amendment being *at war with itself" this myth has been debunked so many times it is pathetic that you repeat it. Well regulated in the time and context of the Constitution meant (effectively) - "properly functioning" as in a well regulated clock. See my prior link to the Militia Act of 1792 for details. To repeat it says in part "each and every free able-bodied white male citizen of the respective States" shall have a military weapon, ammunition and supplies. Think how things are done in Switzerland, OK? With respect the San Francisco, the voters there can no more repeal one provision of the US Constitution than they can seceed from our country. Here endeth the lesson.

RKV:

Your ad hominem attacks make clear that it is your side whose reasoning is illogical -- else, why the vitriol?

I am not speaking only of your views of the 2nd amendment, but of most 2nd amendment proponents. Frankly, I don't care about your views in particular. They have no importance as distinguished from your compadres. Almost no gun rights proponents argue that the 2nd amendment confers a right to weapons more lethal than the handheld variety, and the remainder of such proponents are not taken seriously by pretty much anyone. (Someone arguing that they have a right to own an operational tank would be laughed out of court.) Whether there was a naval militia in WWII is beside the point; do you believe even a conservative court would uphold your right to operate a working submarine in Lake Michigan?

I did not speak at all of letters of marque, so I certainly did not "feed you any fallacious arguments about needing a letter of marque" for any purpose.

Your belief that "well regulated" has the narrow scope you ascribe appears to be wholly your own; I note that you did not provide any citations for this view. If you look online for the standard dictionaries, all of them include definitions of this term that are much broader than you, or Mr. Huffman are willing to acknowledge. See, e.g.:

Cambridge Dictionary
regulate

to control something, especially by making it work in a particular way

Merriam-Webster
regulate

1 a : to govern or direct according to rule b (1) : to bring under the control of law or constituted authority (2) : to make regulations for or concerning
2 : to bring order, method, or uniformity to

American Heritage
regulate

1. To control or direct according to rule, principle, or law. 2. To adjust to a particular specification or requirement: regulate temperature.

Moreover, the normal use of the word regulate would encompass all of the regulations that Congress has proposed in Brady I and Brady II. Certainly the FDA does more than "adjust so as to insure accuracy of operation" when it decides what drugs can be legally sold and with what warnings, etc. The common definitions of "regulate" would encompass any regulation of weapons up to (but excluding) prohibition and confiscation of all weaponry.

Which is ironic, because it is exactly the ordinance that San Francisco passed that could actually be struck down by application of the 2nd amendment -- if "militia" is a reference to an individual right, if the right to bear arms is so fundamental that it justifies applying the 2nd amendment to the states through the 14th, and if state law was not sufficient to invalidate the ordinance on its own. So there is no reason not to argue the 2nd amendment in challenging the SF ordinance unless the very people who publicly claim to believe in a broad scope for the 2nd amendment privately doubt they would win on their arguments in a court of law.

It's the militia that gets well regulated, and it's the right that doesn't get infringed.

Well, that's an interesting take, but I don't think it washes.

First, if the militia refers to an individual able-bodied adult (and not the collective right to a militia), then it is an individual able-bodied adult who can be regulated in the course of his militia duties. The amendment concedes as much. Since regulation = control, then as long as that control is not so absolute as to swallow the right entirely, it is consistent with the first half of the amendment. So, he can be required to get training before bearing arms, he can be told what arms and ammunition he can and cannot have, he can be required to pass a background check and/or carry a permit, etc. Pretty soon, you have the Brady Act (V.1 or V.2)

Second, you still have to define what arms means. Virtually everyone (implicitly) acknowledges thatthe 2nd amendment does not guaranty an unlimited right to bear any form of arms (nuclear, for example), and yet, virtually everyone acknowledges that it must include the right to own something more potent than a 1789-era musket. So, who decides where the line is? I would suggest the answer is Congress, and their authority lies in their ability to regulate the militia.

Third, and more generally, the first half of the amendment is the predicate for the second half: you cannot interpret the second half without reference to the first. I know that gun rights advocates want to pretend that the first half is mere surplusage, but that doesn't pass the straight-face test. No other amendment included a "whereas" clause, so why would this one if that was all the first half was meant to be?

The position of most pro-gun organizations is that it's better to strike down a bad law on side issues such as vagueness, than to feel all rightious about having challenged it on the proper grounds, but have the law stand because the magic words "Second amendment" caused the Supreme court to reject the case.

That assumes you can only proceed under one argument. But obviously, you can advance alternative theories. So if you don't use the constitutional theory, there must be a reason, and it can't be a good one. [Incidentally, the Supreme Court can duck the issue, but the district court and the circuit court would have a much more difficult time doing the same.]

RKV:

You began your argument with the following statement:

there is so much wrong with your reasoning that it is hard to know where to start. In fact it is probably a waste of my time given your demonstated lack of logic and weak grasp of history

I think that introduction speaks for itself, but since you seem to miss the point, beginning a rebuttal by insulting your opponent demonstrates only that you are either trying to intimidate them or distract the audience. It may not be ad hominem by definition, but It certainly doesn't make what follows any more persuasive. Likewise, dismissing arguments with which you disagree as "pathetic."

As for the specifics of your latest post, I will defer the reader to common experience as to the number of people who share your views of acceptable "arms" that may be owned under the 2nd amendment. It shouldn't be necessary for most readers for me to provide evidence of such commonly recognized beliefs as the view that the 2nd amendment does not allow you to own a tank (or a private warship).

As for the proper source for definitions, you can't have it both ways. If "regulate" is defined as of 1789, than so is "arms," and your right can be limited to arms in existence as of that time. Conversely, if we can accept a modern definition of "arms," than we can accept a modern definition of "regulate." I don't know if your definition of "regulate" circa 1789 is accurate and I don't have the time to research it, but it doesn't really matter: even if you are correct, no court is going to confine the definition of that word as much as you would by reference to such an old and peculiar definition. The term is commonly used today and has been for decades and as so used has a much broader meaning than you (or Mr. Huffman) are willing to concede.

Taking a step further back, the argument that the 2nd amendment allows an unrestricted right to bear arms based on the literal words of the second half of the 2nd amendment is comparable to an argument for 1st amendment absolutism. After all, the 1st amendment says "Congress shall make no law abridging freedom of speech" and has no language preceding it that undermines that very statement, such as "well regulated." Yet, we all know that the courts have rejected 1st amendment abolutist arguments for decades, and it is predictable that they will do the same for 2nd amendment absolutism.

Furthermore, I do believe that the 2nd amendment protects an individual right to bear arms, but that that right can be regulated, so your statement about "what [I] want to believe" just means you haven't read my postings very carefully. My view is that the use of the term "militia" doesn't matter because "well regulated" (almost) cancels out "not be infringed" and the most that can be said for it is that it prohibits Congress from enacting a total ban on ownership of weapons and ammunition and/or confiscation of the same, but probably does nothing more.

If there is someone out there who has a better argument as to why I am wrong, absent the posturing and invective of RKV, I would be glad to hear it, but I haven't seen it yet. Moreover, the actions (or more accurately, the inaction) of the NRA in challenging laws such as the SF ordinance on constitutional grounds leads me to believe that they are privately not so confident of their legal standing on this issue.

RKV: Even if we accept your definition of "well-regulated" from the 18th century as controlling, the federal (or state) government is thereby allowed to require registration of guns and mandatory gun safety training for their owners and users (once again, as with motor vehicles). For the militia to be "well-regulated" it must be well-trained in the use of firearms, and able to perform its missions under the control of authority.

To ensure, therefore, that the guns in possession of our "militia" (armed citizens) are well-regulated, the government must know who has them and must know that those who have them are trained in their proper care and use. And that includes not only training in how they can be used to shoot and kill an "enemy," but how they can be stored so as to deter gun thieves and protect the children of the gun owner from accidentally (or purposefully) shooting themselves or others. And that includes anger management training for the gun owner, so that he or she doesn't decide to shoot their spouse over an adulterous affair, or cold mashed potatoes, or a missing paycheck.

It also includes mandatory background checks, since a "well-regulated" militia of citizens shouldn't include felons, minors, and those who have demonstrated misuse of firearms in the past.

So I applaud your definition of "well-regulated." It helps make the case for those of us who are neither gun rights absolutists, nor gun prohibition absolutists.

Actually, RKV, I'm just trying to relate the dependent clauses in the 2nd amendment with the main sentence.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The standard gun controllers' view of this language is to read the main sentence exclusively in light of the dependent clauses and say that the only right conferred by the 2nd amendment is the right for a state to have its own national guard units.

On the other hand, you and other gun rights absolutists read the dependent clauses as completely independent thoughts.

In fact, the best way to read the 2nd amendment is 1) the right of the people to keep and bear arms shall not be infringed, and 2) the reason this right is bestowed is that a well-regulated militia is necessary to the security of a free state.

And since a "well-regulated" militia is one that is disciplined and ready to fight in a professional manner, it is incumbent for the State to know who has the weapons (registration) and ensure that those who have the weapons know how to use them and avoid misuse of them (training).

But it doesn't allow the State to confiscate weapons. This would make a hash out of the 2nd amendment.

Now, policy arguments are a whole different matter. If you want to argue that mandatory national registration and training is bad policy and shouldn't be legislatively enacted, go right ahead. I just object to your claim that mandatory national registration and training would be unconstitutional.

It's "historic compromise" time, folks. Step up to the plate.

Well then, RKV, it's all-out (political) war, isn't it?

Good luck.

So jgshapiro, by your logic of personal guns vs. the US Military, the US will win the war in Iraq because the terrorists are just using small weapons (where as the US has all sorts of big weapons).

I'm glad that you see that the US must win in Iraq because it has the weapon advantage.

jgshapiro,

I find it ironic that you'd assert, on this particular blog, that "I know that gun rights advocates want to pretend that the first half is mere surplusage, but that doesn't pass the straight-face test." I say that because our gracious host, the Conspirator-in-Chief, addressed the issue of the meaning of the "first half" (the justification clause) in his 1998 N.Y.U. L. Rev. article entitled The Commonplace Second Amendment. Here are some excerpts:

"The Second Amendment, unusually for constitutional provisions, contains a statement of purpose as well as a guarantee of a right to bear arms. This unusual attribute, some argue, is reason for courts to interpret the Second Amendment quite differently than they interpret other constitutional provisions — perhaps to the point of reading it as having virtually no effect on government action.

"My modest discovery is that the Second Amendment is actually not unusual at all: Many contemporaneous state constitutional provisions are structured similarly. Rhode Island's 1842 constitution, its first, provides

'The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .'

***

"These provisions, I believe, shed some light on the interpretation of the Second Amendment:

1. They show that the Second Amendment should be seen as fairly commonplace, rather than strikingly odd.
2. They rebut the claim that a right expires when courts conclude that the justification given for the right is no longer valid or is no longer served by the right.
3. They show that operative clauses are often both broader and narrower than their justification clauses, thus casting doubt on the argument that the right exists only when (in the courts' judgment) it furthers the goals identified in the justification clause. 8
4. They point to how the two clauses might be read together, without disregarding either.

***

"I believe the justification clause may aid construction of the operative clause but may not trump the meaning of the operative clause: To the extent the operative clause is ambiguous, the justification clause may inform our interpretation of it, but the justification clause can't take away what the operative clause provides. And because we know that operative clauses may be at times broader and at times narrower than justification clauses, we should accept that the two clauses will sometimes point in different directions."

I commend the full article to you.

You also say,

An effective militia member is one that is trained, so a training requirement would be consistent with the amendment.

If by "training requirement" you mean "a requirement that the militia train," you're right. Congress clearly has the power to "regulate" the militia "well" by compelling it to train. But this flows not from the Second Amendment, but from Article I, section 8's grant of the power "[t]o provide for organizing, arming, and disciplining, the militia ... reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." (By the way, I think the term "disciplining" here means, essentially, establishing standards for training, not, "making general rules of conduct and enforcing obedience to them." I think the latter authority comes from the power "To make rules for the government and regulation of the land and naval forces ..." which is also in Article I, section 8.)

But if by "training requirement" you mean, "a requirement that one undergo (militia) training before he may keep and bear arms," your conclusion doesn't follow at all. The grant in the operative clause of the Amendment guarantees a right of "the People." The phrase "the People" has one, consistent meaning in the Bill of Rights: each individual who is a member of "the People." Congress has no obligation to prescribe training for the militia, as Prof. Volokh notes in his article. In fact, Congress doesn't require the militia to train and, as I understand it, never really has. It has the power to do so, but no obligation. If the individual right secured by the operative clause of the Amendment depended upon Congress doing something that it has no obligation to do, it would be no "right" at all.

A militia that is under the control of authority is one where the authority can tell each member what weapons he must or cannot have, what ammunition he must or cannot have, to register his weapon, etc.

The Article 1, section 8 power to organize, arm and "discipline" the militia certainly must include the power to tell each militia member that he must have a certain weapon, and a certain type and amount of ammunition for it. It probably includes the power to require him to provide the weapon and ammunition; there is colonial precedent for such requirements, as noted by the Miller court. (Few things would tickle me more than if Congress were to pass a law requiring each member of the militia to buy an AR-15 and a basic load of ammunition. It seems to me that such a law is pretty clearly within the power of Congress, and the reaction in some quarters would be wildly entertaining. Not that it could happen in today's America, of course, but a boy can dream.)

And if Congress may require militia members to arm themselves, it certainly also may require them to prove compliance with that requirement, e.g., by appearing at musters and submitting to inspection of themselves and their arms. (This would be tantamount to a limited form of registration.) There's also ancient precedent for that sort of thing — as noted by, again, the Miller court.

But as to your claim that the "well-regulated militia" clause permits Congress to ban all guns except those that it prescribes for the militia, or to require registration of guns, I see several problems.

First, the Bill of Rights does not grant Congress powers; it restricts powers granted elsewhere. We can debate whether and how (if at all) the "well-regulated militia" clause is supposed to limit the operative clause of the Second Amendment, but it is clear that the clause is not a grant of power to create a militia and/or to regulate it "well." We must look elsewhere for that power.

Once again, the relevant grant of power is in Article 1, section 8, which permits Congress "[t]o make rules for the government and regulation of the land and naval forces." Now, this power does include the ability to restrict the individual constitutional rights of members of those forces. But, without knowing for sure, I hope that that power is limited to cases where it serves some important military goal. And we should be especially skeptical of regulations that purport to affect the rights of members of the militia when not in active service; if such regulations were broadly permissible, we could arbitrarily subject the entire citizenry to military discipline and turn the country into a police state.

So for example, a unit commander may order a soldier to perform duties that require him to violate his Sabbath, even though this infringes his right to freely exercise his religious beliefs, because the alternative could well be chaos in the ranks. But I would hope that the Constitution doesn't permit a commander to order his soldiers not to attend church services while they're off-duty. (I know that when I commanded Marines, I certainly never believed that my power over them extended that far.) And I would very much hope that the Constitution wouldn't permit militia leaders — or Congress — to order militia members not to attend church, or not to engage in political speech, or not to petition the government for redress of grievances, while they're not only off-duty, but not even in active service. Reading the power to "regulate" the militia that broadly would utterly gut the Bill of Rights.

But if we shouldn't tolerate those sorts of far-reaching regulations, neither should we tolerate regulations that restrict the individual constitutional right of militia members to keep and bear their private arms, except where directly related to some important military goal. So it's perfectly valid for Congress to require soldiers, or members of the militia in active service, to carry certain weapons and only those weapons when they're in on duty. But general regulations against keeping and bearing their private arms while they're not even in active service? General regulations requiring them to register their private arms in the name of "regulating" the militia? Absurd.

Shifting gears, your explanation for why gun rights organizations like the NRA do not push Second Amendment arguments at every possible opportunity, while facially plausible, doesn't merit the certainty with which you proclaim it. The author of the post to which this comment thread is appended has outlined a much more persuasive explanation for why that might be so. An excerpt:

"Robert Cottrol, a professor of law and history at George Washington University, is author of several law review articles on the Second Amendment, editor of the three-volume book Gun Control and the Constitution, and coauthor of the new book Brown versus Board of Education: Caste, Culture, and the Constitution. He strongly supports the Second Amendment as a fundamental human right, particularly for racial minorities who are persecuted by racist government, or who are denied effective police protection. Cottrol argues that the pro-right model for gun-rights litigation "should be the NAACP's highly successful litigation strategy in Brown v. Board of Education. The NAACP took the time to:

1) raise the legal foundation by bringing the appropriate case; 2) get the precise circumstances and plaintiffs to get best posture before the court; and 3) wait until they had the right court."'"

Litigation strategy encompasses a lot more than merely knowing that you're right on the merits. The fact that you may know you're right doesn't mean the court will find in your favor. (Wasn't Dredd Scott right on the merits? Wasn't Homer Plessy?) If you're a cause lawyer with a long-term goal who believes that the courts are biased against your cause, and are likely to reject a constitutional claim that would help your cause, you may decide to refrain from making that claim until you think you have the right court. Otherwise, you may accomplish nothing more than to create (or further entrench) bad precedent. This doesn't reflect lack of confidence in your claim; it reflects lack of confidence in the courts. There's a difference.

1. How long did the folks in Waco last once the government got tired of waiting around? Koresh &Co. had quite an arsenal and the military was not even involved (Posse Comitatus). What about the Freemen? How long did they last?

Not long. But this is a specious argument. The Branch Davidians and Freemen were small groups that were known to the government, in a fixed location. This gave away the initiative (a fixed defense always does), which allowed law enforcement to mass superior man- and firepower, and move when they were ready. That's always a losing proposition. But if you imagine that's how a generalized insurrection in the U.S. would work, you haven't really thought much about this. It is entirely possible to fight larger, better-equipped forces if you stay mobile, fade into the background when not actually engaging the enemy (either by blending into the civilian population or, in a full-time guerilla organization, by hiding in places where you're very hard to find), retain the initiative, and attack when and where you are able to achieve temporary superiority. That worked very well for the Viet Cong for a number of years. It was only when they massed and fought as conventional infantry during the Test Offensive, exposing themselves to the full fury of American firepower, that we were able to militarily defeat them. That's the model for an insurrection in the modern age -- not the Branch Davidians or the Freemen (who, in any event, didn't really want to fight). Imagine 20,000,000 people with guns living normal lives 29 days a month, and working on the government in small, anonymous groups the other one day a month -- all over the country. Think about it. I believe that prospect has real deterrent power. If those 20,000,000 people are just another 20,000,000 disarmed, helpless sheep, it's not nearly as intimidating a prospect.

2. How many people die every year due to gun-related violence as compared with the benefit of being able to launch an insurgency if the President and the JCS decide to turn the military against us (and the military follow them)?

That's impossible to say. (And don't forget that there are plenty of benefits to private gun ownership, regardless of what you think of the doomsday scenario. An awful lot of crimes are deterred or prevented because of privately owned guns.) But considering that violence by states against their own citizens killed far, far more people around the world in the 20th century than did violence by ordinary criminals, I place significant value on the ability to launch an insurgency. The poor black Africans in Darfur sure could use a rifle apiece right now.

3. What is the likelihood that in this day and age (as compared with the 1700's when the federal government and a federal military were new entities) the military would follow an order to turn against the people? If it did, don't you think enough service members would change sides so that your right to own militia-style arms would be irrelevant (because you would have access to much more potent arms)? Or do you think that folks who serve in the armed forces are so brainwashed that they would universally support the takeover?

You make some pretty perceptive points here. (Of course I'm biased. I've also come up with these arguments; thus, they must be evidence of a first-rate mind. ;-) ) Speaking again as a former Marine, I think you underestimate the power of groupthink. For every sergeant or captain who's ready to help a group of "concerned citizens" get into an armory or ammo supply point, there'll be many more waiting to turn him in. Universal support? No, of course not. But "universal" support isn't required. There are an awful lot of people who'll go along with a great deal more than you might imagine. (Out of curiosity, do you know how many soldiers or law enforcement officers refused to go along with interning the Japanese on the West Coast in W.W.II? I don't -- but I'll bet it was a tiny proportion, and I'd say the odds are decent that none did.) But that aside, would-be despots throughout history have always been aware of the military as a potential threat, and the smart ones have always found ways of minimizing that threat. Stalin used the brute force approach, and shot or imprisoned nearly every officer with a hint of ability or initiative. It worked pretty well. Others have found equally effective, if less direct, methods. You believe this country has somehow become too civilized for such things. I believe no country is ever too civilized for such things. I think human history provides far more support for my position.

4. Would the requirements of the Brady Act (background check, etc.), or a requirement for training and/or permitting gun owners, or a requirement for gun locks, or intelligent triggers, etc. prevent an American insurgency from resisting a military takeover of the United States?

Background checks in which the records are destroyed immediately? No, it wouldn't. But can you assure me they'll always be destroyed immediately? They wouldn't be as useful to a budding police state as a gun owner licensing scheme, but they'd still be useful.

A training requirement/permitting requirement is problematic for two reasons. First, it would provide our hypothetical police state with a handy list of people with the ability to resist, and perhaps the inclination. Remember what I said about fading into the background? Very hard to do if your name is on a list. Furthermore, to the extent that a training requirement was made incrementally more stringent until it becames effectively made it impossible for most people to obtain a permit, over time it would significantly degrade the ability of an insurgency to resist an American police state. (A slippery slope concern? Yes, many gun owners worry about such things. Why shouldn't we? The prohibitionists have publicly stated that theirs is an incremental strategy.) People who don't know how to use guns probably don't make very effective insurgents. I suspect they're also probably much less likely to consider that sort of resistance a practical option in the first place. Gun locks and intelligent triggers have far more to do with the practical ability to defend oneself against routine crime than with the doomsday scenario.

5. If you accept the premise that a local militia could resist federal oppression, in some form or another -- who controls the local militia (as distinguished from the Guard)? Do you really trust anyone with a weapon to decide for themselves when to take up arms against our own elected government?

We already trust anyone with a weapon to make that decision -- have from the very beginning -- the government hasn't fallen yet. And I don't think it'll be a serious threat as long as the government continues to be reasonably responsive to the will of the people. Ballots are better than bullets, as the saying goes. But what happens if ballots cease to be available -- a possibility you don't seem to take into account? Adolf Hitler was elected. Hugo Chavez was elected, and I'm pretty sure the Venezuelan people will live to regret it. Jean-Bertrand Aristide was elected. Vladimir Putin was elected; is Russia closer to or further from being a liberal democracy as a result? In short, what is the basis for your assumption that elected governments can't turn despotic?

If that ever becomes a real prospect in this country, I hope an armed insurgency will be a real enough prospect to make the government see reason. If it isn't, then I hope there'll be enough people willing to take up arms against our own elected government. And I think they'll be able to figure out when it's time. As to who would lead such an insurgency, there are lots of possible answers. I'm a big believer in spontaneous orders. Americans don't need to be told how to get a thing done, once they decide it needs doing.

Today, the principal reasons most people own weapons are self-defense (from criminals, not from the government), hunting, recreation and perhaps, as part of a collection. In none of those circumstances do you need to own a working machine gun, armor-piercing bullets or a private warship. In none of those circumstances would the kind of restrictions I have been discussing prevent you from reaching your objectives (self defense, recreation, etc.). I'm just sugesting some cost-benefit analysis here.

There's a lot in that last paragraph I'd like to respond to, but not tonight.

JG,

Yes, I do believe that the operative clause is independent of the justification clause. Rather than crib Eugene some more, I'll just suggest again that you read his article it its entirety. He addresses your objections.

The view that the operative clause is not dependent on its justification is entirely consistent with Miller. Pay very careful attention to what the Miller court did and did not say. It never inquired whether Miller and Layton were members of the militia, or whether they were performing militia duties at the time of their arrest. If the court had believed that the right applied only in the context of militia membership or actual militia service, those would have been central issues in the case. Instead they were non-issues.

What the court did ask was, "is this the type of arm that the Amendment guarantees a right to keep and bear?" And it never moved beyond that question to a substantive discussion of the right -- not because it held that sawed-off shotguns aren't a protected arm (it didn't), but because it said it didn't know the answer to the initial question. ("It is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.") That's an entirely different issue. It's akin to asking, in the context of a free speech case, "is this speech"? If not, then the free speech clause -- although it concededly protects an individual right -- does not apply.

What the Miller court held was that a type of weapon that "has some reasonable relationship to the preservation or efficiency of a well regulated militia," i.e., that a weapon that "is any part of the ordinary military equipment or that ... could contribute to the common defense," is the sort of weapon that the Second Amendment guarantees a right to keep and bear. (And by the way: although arugments from authority are fine for litigation, outside that context I don't think it's wise to fetishize the Supreme Court's view of the Constitution. I hope we're discussing here what the Amendment actually means, which may not be the same thing as what the Supremes say it means. It's not as if the Court has never been wrong.)

I'm afraid I don't share your optimism about the possibilities for despotism in the U.S. I take a much longer view of things. "Can [I] imagine George W. Bush deciding he did not want to step down after 8 years? Declaring himself president for life?" No. But some president thirty years from now, when my children are my age? Or thirty years beyond that? I have no idea what the world will look like then.

"The militia power seems more likely to be used by a few loonies ... then by any legitimate need to mount a Nazi resistance movement ... Again, a cost-benefit analysis."

It seems to me that your cost-benefit analysis here takes into account only probabilities. You need to factor in costs. The loonies you fear may have a higher probability of occurring than does doomsday, but they're likely to do a lot less harm, too.

"the absence of a justification clause has lead to a very broad right -- but still not a right as absolute as you appear to believe that the 2nd amendment provides."

I don't think I've said how "absolute" I think the right to keep and bear arms is. No accident there; concluding that it's an individual right that does not depend on its justification clause is easy. Answering the myriad issues that conclusion raises, isn't. (That probably has to do with why the Court has ducked the Amendment for so long.) But I do think your conception of it is unjustifiably narrow.

It seems to me that your cost-benefit analysis here takes into account only probabilities. You need to factor in costs. The loonies you fear may have a higher probability of occurring than does doomsday, but they're likely to do a lot less harm, too.

If you assume that there is a 1/1000 of 1% chance (0.00001) of a military takeover, is that worth the danger of arming the loonies? After all, once you concede a right for an individual to own arms, and if you further assert that he can own almost any kind of arms, and if you further proclaim that he cannot be required to register the arms, obtain a permit, submit to a waiting period, etc., then it is likely that arms will fall into the hands of people who are not equipped to handle them, emotionally or otherwise. You can only deny them arms if they have already committed a felony when they want to buy them. That's a big chance to take based on a small risk of a great harm occurring.

The harm I fear has actually occurred in this country, relatively recently -- school shootings, subway shootings, etc. -- while the harm you fear has not even come close to happening here. If you think the chance of such a harm is larger than I suggest, it gets us back to the question of how likely is the doomsday scenario, really?

I don't think I've said how "absolute" I think the right to keep and bear arms is. No accident there; concluding that it's an individual right that does not depend on its justification clause is easy. Answering the myriad issues that conclusion raises, isn't.

Well, I agree that it is an individual right; I don't think I have said otherwise. And I agree that it does not 'depend' on its justification clause, but I also believe that the operative clause is limited by the justification clause in the sense that the latter informs the scope of the former. So maybe we actually agree, or the difference is not worth discussing.

In any event, this discussion began with reference to the Brady Act and other similar restrictions, and I think you would have to take a fairly absolute view of the 2nd amendment to conclude that any of these restrictions would violate the 2nd amendment.

Ah, good; the thread is still open! (Comment threads here automatically close after a certain period. I found out the hard way once.)

"[t}this discussion began with reference to the Brady Act and other similar restrictions, and I think you would have to take a fairly absolute view of the 2nd amendment to conclude that any of these restrictions would violate the 2nd amendment."

Well, yes, it did begin with Brady. But my purpose in pointing out what I see as the flaws in your understanding of the Second Amendment argument has been not so much to argue that I think your conclusions about the constitutionality of Brady or Brady II are wrong; as I said, I think those concrete policy questions can be very hard. Rather, my point has been primarily that I think some of your underlying beliefs about the meaning of the Second Amendment, e.g., the import of the term "well-regulated," are wrong. (I, too, see it as "informing" the meaning of the operative clause -- but in a much less radical way than you.) It may still be possible to reach your conclusions starting from what I would consider a correct view of the general meaning of the Amendment. But I think we'd have to come to some agreement about the basics before we could have that discussion.

And don't forget that there has been a significant policy component to this discussion. I joined with a response to this comment of yours, in which you told Walter, "[y]ou are changing the discussion over to a policy argument, from a legal one," and proceeded to make several policy arguments. So don't assume that just because I've argued in favor of some policy, I necessarily think the Second Amendment incorporates that policy into its meaning, and absolutely prohibits anything that might in any way interfere with the policy.

"The harm I fear has actually occurred in this country, relatively recently -- school shootings, subway shootings, etc."

I thought we were discussing your fear that "a few loonies who just don't like the way the laws have evolved(e.g., tax protesters, white supremecists) or [] people with paranoid fantasies (e.g., the black helicopter set)" would "take up arms against our own elected government." The fear of common criminal use of firearms seem to me to be a somewhat different matter.

"[T]he harm you fear has not even come close to happening here."

Some folks might dispute that. Even if those folks are complete loons, it's not necessarily true that we'd know if the harm I fear had come close to happening. That's the problem with deterrence: Unless it fails, it's very hard to know if it's working. But even if you're right, and the U.S. never has been close to becoming a police state, mightn't that have something to do with the fact that the American people are armed to the teeth?

"If you assume that there is a 1/1000 of 1% chance (0.00001) of a military takeover, is that worth the danger of arming the loonies?"

Again, it depends not only on how likely you consider that military takeover, but what you consider its likely costs. Just for example: we could sustain the current annual number of homicides for thousands of years before it would exceed the number that died of Soviet democide. And that doesn't even take into account the value of intangibles like, er, liberty.

I'm not trying to bait you into further argument; I think we've probably reached an impasse. We obviously have significant differences on some very fundamental issues. I just wanted to clarify these points a bit more. I've enjoyed the conversation. It's rare that one of these doesn't devolve into name-calling. Thanks.