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What if Heller had turned out the other way?
Prof. Nick Johnson asks the question, in the Wake Forest Law Review. His points are practical rather than legal ones. (1) The only supply-side gun control that would have a chance of affecting crime is a ban and confiscation, all this toying around with assault weapons and similar issues is mere symbolism that affects nothing. (2) Anyone who thinks a ban and confiscation would work is delusional.
Some really interesting figures at pp. 854-55: gist of them is that, looking at the question worldwide, no one -- Indians, French, Mexicans, Germans -- complies even with modest controls.
Hat tip to Don Kates....
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Take a look at Shotgun news this week
Clayton Cramer discusses this very issue
Don't worry, Dan. Mikey Vanderbough is talking about it ... at length.
Symbolism is important. Banning this category of firearm or that innoculates the public into accepting that the government has the power and will to ban certain firearms. Once you have the frog in the pot of water, it is no great feat to simply turn up the heat. Banning this category of firearm or that also has the added advantage of dividing gun owners against each other: Fudds versus Machine Gun Guys, etc. A house divided against itself cannot stand.
"Don't worry, Dan. Mikey Vanderbough is talking about it ... at length."
So did the Founding Fathers.
As I read this, I had one nagging thought; he falls into the common trap of believing that the police are above human vices and corruption. In an environment where guns are outlawed and any private ownership of a firearm is illegal, the police will still have their guns. The saying that power corrupts is far more truthful than it is trite, and being the only guy on the block (and the city) who can lawfully carry a gun would raise the “power” of the individual officer exponentially. Police officers are not super humans devoid of common impulses and desires, gun crime would still exist only it would exist among a fellowship that is known to accept bad behavior with its ranks, and often is willing to cover it up.
If not guns, then other arms used by criminals to commit crime. So banning guns could never provide the desired result.
Taking of private arms by the government was the immediate reason the Revolutionary War started. To take away the means of self-defense for peaceable people resulted in the voluntary human action of thousands of individuals because they understood it would be better to risk death than become slaves to the British government.
The government elites of our time should also note that there are many individuals in the current "standing armies" of military and police that would not want to become slaves to government either. The U.S. Constitution might mean more to them than mear words.
It should never be forgotten that the immediate incident that precipitated the Revolutionary War was General Gage's attempt to confiscate arms at Lexington, MA.
Sorry Joe ... you just said that. My apologies.
It should never be forgotten that the immediate incident that precipitated the Texas War for Independance from Mexico was the attempt to conficate arms (a cannon) at Goliad, Texas.
Meet with a flag with a cannon and a star with the words 'Come and take it".
The "Come and take it" flag now being sold with a AR15 on it as well as other weapons.
The Libs as always never believe anyone is serious but themselves.
If Heller had gone the other way, the 2nd Amendment would officially be a feature of militia law, which it has never previously been. The amendment would then protect a state power to define militia composition and authorize citizens to arm themselves. The states could then create 50 different standards of militia enrollment and arming, in apparent contravention of Art I Sec. 8 cl.15 and 16, and in contravention of every bit of caselaw pertaining to those clauses.
JHEATH makes a good point -- I think that Glenn Reynolds has an article somewhere about that very issue -- that giving the states total control of the militia would have consequences liberals wouldn't like. States could have their own Air Forces and Navies, nuclear weapons, etc. States could make their own determinations of what arms their citizens could own, nullifying NFA '34, etc.
This is the article I'm refering to: Glenn H. Reynolds & Don B. Kates, Jr., The Second Amendment and States' Rights: A Thought Experiment
The states don't have control over "the militia." If I recall the law review articles on that issue correctly, every single time a state has sued the federal government over that issue, the state has lost.
Every. Single. Time.
No, what they've lost over is trying to sue over the use of the National Guard, which isn't really the militia, but is instead a mixed State/Federal force that is armed, equipped, paid, and trained primarily by the Feds, but can be used by the State for some purposes (but if used by the States, the States have to reimburse the Feds for their pay).
Prof. Johnson give serious credit to gun lobbying groups for preventing the use of a non-legislative regulatory scheme to accomplish what could not otherwise be legislated (think environmental regulations here).
"The gun lobby is one of the significant participants in the regulatory process. Indeed, the NRA might be the biggest player on the field, and it maintains a direct line of communication with its constituency. Its funding comes substantially from grassroots, diehard gun owners. The single-issue-gun-rights voter, receiving constant mail and email communications from the NRA, Gun Owners of America, or the Second Amendment Foundation, is less likely to be snookered by rulemaking in the shadows." p. 867.
James:
Fair point. I think, though, that the cases go back farther than the creation of National Guard. I could be mistaken on that recollection, though.
James, I wrote "the" law review article about federal preemption of state militia powers, and pace Glenn Reynolds, no "thought experiment" is needed -- the caselaw actually exists. One simply needs to test the "militia" 2nd Am theory against the militia caselaw affecting federal/state powers. This seems an obvious thing to do, but for some reason people find it counterintuitive.
In _Heller_, J. Scalia at pp27 wrote that a right cannot be made contigent on membership in an entity from which Congress can exclude citizens.
In response, J. Stevens at dissent pp.19 note 20 wrote that in his opinion the states can define militia enrollment in contravention of federal law. Had _Heller_ gone the other way, this remarkable proposition would have had the Court's imprimatur.
My article was "Exposing the Second Amendment" 79 U.Det. Mercy L.R. 39 2001.
JNH
> more gun controls but they are ignorant of the possible costs and dangers.
What makes you so sure that gun banners think that violent resistance to gun confiscation is a bug?
I'm pretty sure that many gun banners would welcome the excuse to have the state rid them of such troublesome people. In fact, that possibility is one of the reasons why some of them push gun control.
Note that the troublesome people would be demonized by "all good people" and said demonization would be largely successful, especially at first.
I'm pretty sure that many gun banners would welcome the excuse to have the state rid them of such troublesome people.
The above is why they are ignorant.
I wouldn't like haveing people who can hit a groundhog at 600 yards fighting mad at me. And those are just a small fraction of the shooters that are out there.
Plus they are assumming that the police will be willing to conficate guns. What percentage of the police will do that. Especially after it is proven to be dangerous.
As I said the gun banners are ignorant of the dangers.
I only had a brief chance to scan the article, but the scan seems to indicate that the author believes that the issue goes no deeper than the opportunity for enhanced, and possibly draconian gun control, and explores what the consequences of such policies might be. (If I am mistaken, I apologize.)
I submit that a perverse Heller ruling would have had much, much deeper significance. (We would reach such significance for many reasons, for example, finding that the first amendment did not prevent the Establishment of a state religion, etc)
To whit, it would have been the first domino.
People would eventually conclude that since the Second had failed, the Bill of Rights had finally and unambiguously fallen.
That domino would then tip onto the Constitution itself, and given that the Constitution was (and arguably is) largely conditioned upon the protections of the Bill of Rights, it wouldn't be unreasonable to conclude, however reluctantly, that the Constitution's moral validity had been vacated.
Without the Constitution, there is no Republic, or legitimate basis for any Federal authority.
From there, we would have to decide whether we could fall back on the Articles of Confederation, or to the Several States, or just start duking it out amongst ourselves, across incoherent (regional? cultural?) lines.
Not a pretty scene, at all.
No matter how far down that chain of reasoning the general mass of people would go, enough would follow it such that "business as usual" would no longer be feasible.
The alternative to this, of course, would be to skip all that and confirm the course we're apparently set upon, in which the meaning of the Constitution is selectively dismissible, on whatever politically expedient basis presents.
Perhaps, that would be a tenable basis for a reasonably free nation, for a while at least.
But that nation would be an impostor, and it's claim to the heritage of the USA would be that of the degenerate, foppish son.
>>I'm pretty sure that many gun banners would welcome the excuse to have the state rid them of such troublesome people.
>The above is why they are ignorant.
Huh? They think that they'd win and they're not going to be doing the fighting. That's a pretty good plan.
> I wouldn't like haveing people who can hit a groundhog at 600 yards fighting mad at me. And those are just a small fraction of the shooters that are out there.
The confiscators can come at their convenience. When are you going to go to ground and how long can you afford to stay?
As a result, the vast majority of confiscations will be ambushes.
> Plus they are assumming that the police will be willing to conficate guns. What percentage of the police will do that. Especially after it is proven to be dangerous.
We already have police who are willing to do dangerous work. Some will demur, but some will sign up because their fellow officers died. The "gun squads" will be the path to advancement.
Good Point Andy, Folks in the New England States fit this profile, and NJ and CA and some other places as well.
He also missed theft from military and police as avenues of an alternate source for the black market. There's been quite a bit of that going on, most especially related to "assault weapons" in California.
Whole "behind the razor wire" parking lots of some LEO offices in California have been broken into and their ARs, M-4s, and Shotguns taken away in the night. I don't reckon the people that took them intend to hand them in because they're "illegal".
On the rebellion/bad things will happen/ point, I did not ignore it. Its just that I have made it many times before. I made it in print More than 15 years ago See e.g., Nicholas Johnson, Beyond the Second Amendment: An individual right to Arms Viewed Through the Ninth Amendment" 24 Rutgers Law Journal 1(1992) see particularly pages 64-75 (you will know a ninth amendment right when you tread on it).
Also in many contexts, I have argued that the cumulative impact of episodes of citizen resistance has a constraining effect on use of government power domestically.
Many times when making these arguments, I am preaching to the choir. The Wake Forest article is one I hope will impact the view of people who instinctively do not support gun rights. It focuses on obvious rational bets and decisions that are easy to emphathize with. It restricts the question to the specific dynamic of crime control. Implicit in the theoretical removal of Heller, is that the assumed value of political violence (one of the plain virtues of the Second Amendment)is removed. So the basic message is whatever you think about the Second Amendment, it is a waste of time to attack Heller.
Thematically, the rebellion point always has seemed to me harder to capture. It presents a basic collective action problem that is hard to simulate or project as a matter of theory. The tipping point would be different for everyone. Some people say they would resist, but if the law were implemented and they were left alone, would they go picking a fight and if so, preciely when. If the law were mainly implemented in high crime areas, disarming people you didn't like anyway, how many people would go picking a fight out of principle? If there were no organized citizen's movement, would you go out alone and pick a fight where you would be outgunned. If the feds knocked on your door and your wife and kids were right there in the room would you fight it out right there. These and a thousand other scenarios make it hard do present violent resistance as a set of predictable decisions.
Sure, I expect American's would resist gun confiscation with force. But when where and how that would play out would be impacted deeply, held convictions about freedom, manhood, natural law, the nature of our republic of countless American citizens. Trying to tell that story in detail by laying out a series of prompts and bets (as the article did in its limited context) would be like trying to bottle a hurricane.
The writer hits almost all points.
BUT he never considers the idea that the gun owners might rebel. A very BAD mistake. With any confiscation there will be some who will NOT comply when the BATF or police come to get the guns. The BATF and police KNOW this, which means that they will use max force and dynamic entry. This will lead to deaths even among those who would comply. This in turn will lead to more determined use of force against confiscation. At some point Gun Owners will feel that it is useless to fight the BATF and Police at the point of confiscation and start to fight the BATF and Government directly. This is rebelion. Everything gets bloody from there.
To ignore the posibility of rebelion over gun confiscation is to ignore the elephant in the room.
Only lawyers and professors would do that.
Since this is a Law review article the author is both.
The real danger needs to be talked about. The Libs want more gun controls but they are ignorant of the possible costs and dangers. Unless people such as the author start talking about the elephant in the room the ignorant Libs will never understand the danger until it hits them upside the head and then it is far far to late.
The author seems to believe that the only thing that can happen if confiscation comes is that guns will be turned in or that guns will be hidden. WRONG, there is a third possibly. Guns will be USED as was intended by the 2ed. That he does not discuss this shows his ignorance.