What I Learned in Law School

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.

There’s probably little that I can add to our great national tragedy related to gun violence. I do know how incredibly intellectually dishonest and how incredibly offensive I find it when every Xian minister in America stands up and announces that the tragedy in Aurora, Colorado is due to (take your pick, apparently their nutjob god can’t get his story straight) abortion, feminists, teaching evolution, gay marriage, the end to state-sponsored prayer in public schools, etc., etc., etc. Seriously, there’s basically no daylight between Rick Warren and the Westboro Baptist Church; it’s just a matter of degree and media acceptance.

I will say this. When I was in law school (and it was many, and many a Moon ago) I learned two important rules of statutory construction. These are rules that they teach to lawyers to help them to figure out what various laws and regulations mean.

The first principle of statutory construction that I learned was that you have to read a statue in a way that, if at all possible, comports with the purpose of the statute. Thus, if, at the beginning of the statute, it says that the purpose of the statute is to, for example, protect consumers, you have to try and interpret that statue in a way that, you know, protects consumers. So if one side argues to the judge that the statute must mean X, but X would hurt consumers, and if there is another plausible meaning of the words, say Y, that would protect consumers, the judge should read and interpret the statute in a way that will protect consumers and should adopt Y as the correct interpretation.

The second principle of statutory construction that I learned was that you have to read a statute in a way that, if at all possible, gives meaning to all of the words. This is often stated, in the law, as reading the statute in a way that will not “render” any of the words in the statute as “surplusage.” In other words, you should try not to ignore any of the words that the lawmakers wrote. If there’s a reading that gives effect to all of the words, that’s the one that the judge should select, over a reading that would ignore some of those words.

I’ll add the following: I’m a woman living in the 21st Century. I don’t, for sure, know what the privileged, white, men who wrote our Constitution — who denied the vote to women, who accepted slavery, and who made a lot of compromises — had in their heads. But I do believe that they meant for their Constitution to last and to be read in ways that would make it effective going forward. YMMV.

When those men wrote the Second Amendment to our Constitution, America didn’t have a standing Army, Navy, Air Force (they could never have imagined!), Marines, National Guard, and Coast Guard. We didn’t have a police force in every town equipped with tasers, drones, heat sensors, electronic spies, and the ability to nab your cell phone and entrap your friends. We can argue, as an esoteric exercise, about whether or not all of those abilities are good things, but they are, right now, facts. We, the people, have turned over to the government our need for a “well-regulated militia.”

Here’s what I do know.

I do know that no matter how many guns any one person or group may purchase, if the United States government decides to take you out, they are going to take you out. They will, literally, out-gun you. Until you can, Dune-like, employ the family atomics, (not to mention the family chemical weapons, the family heat sensors, and the family ability to cut off water) and, really, even then, you are not going to hold off the firepower of the United States government, which spends more money on weapons than any other country on the face of the globe. Maybe that’s good; maybe it’s bad. But it’s a fact.

I know that letting every nutjob in America load up on automatic weapons is inimical to the “security of a free state.” People can’t be free if they are constantly at the mercy of an armed nut. Ironically, the reaction to the tragedy in Aurora isn’t to limit the ability of crazies to purchase arms. Instead, theaters are going to limit the freedom of patrons to wear costumes. Let’s be clear: costumes. Costumes don’t kill people. Guns kill people. But we apparently can’t limit the ability of nutjobs to buy guns, so we’re going to limit the ability of free people in a “free state” to wear costumes. Some underpaid usher at a movie theatre is going to decide whether or not your pentacle, or your Goth make-up, or maybe just your beard renders you unable to see a movie. Because we can’t tell nutjobs that they can’t buy automatic weapons. And you can now surrender your bodily freedom and allow, again, some underpaid usher at a movie theatre to grope you in order to allow you into the theatre.

I know that letting every nutjob in America load up on automatic weapons is inimical to “a well-regulated militia.” Ask any police force in America what they think about reasonable gun control and they’ll tell you that they are all for it. There’s nothing “well regulated” about letting every nutjob out there buy all the automatic weapons s/he can buy.

I know that more weapons won’t help anything. Ask the police what they think about the idea that, if there were only more people carrying more weapons into theaters, we’d all be safer. Six people standing up and shooting at each other won’t make the rest of us any safer, nor will it allow the police to apprehend the real crazy. Sure, a nutjob with a knife might kill some people, but I’m way more willing to believe that some heroic people in the theatre might take hir down than I am to believe that a bunch of armed folks with fantasies of Indiana Jones running through their heads are going to make things safer as they stand up and start blazing away at each other, esp. with me in the middle or with me, standing up to run out of the theatre with G/Son.

I know that this has nothing to do with hunting. I’ve eaten meat most of my life. I don’t, personally, have a problem with someone who hunts, for example, a deer or a rabbit or a squirrel, in order to feed hir family. I can’t find a definitive difference between hunting a deer in the woods and killing a cow in a slaughterhouse, at least, no difference that doesn’t favor the hunter. But we need to understand that the Second Amendment has NOTHING to do with hunters. It protects the right of citizens to bear arms in order to allow those citizens to be drafted into a “well regulated militia.” The government already possesses the power, under the Commerce Clause and under its police power, to regulate arms used for hunting.

Similarly, this has nothing to do with you owning a gun to shoot an intruder (who may or may not be a family member; it’s usually a family member). The government already possesses the power, under the Commerce Clause and its police power, to regulate arms used for personal security, as opposed to that of a free state protected by a militia.

Could we please grow up and have an honest discussion about this issue?

Picture found here.

Update here.

69 responses to “What I Learned in Law School

  1. A couple of thoughts…the NRA was started right after the feds took out the KKK as any kind of powerful group. Hmmm.
    I have always, always been really confused and amazed how the words ‘as part of a well-regulated militia’ just disappear in the gun regulation discussions! Come on! It’s almost like taking a part of a bible phrase and ignoring the rest to get your way…

  2. You hit the nail on the head, Hecate! It really bugs me when people (this is usually in a religious context, such as the outdoor service in Aurora today) say “we’ll don’t know why this happened.” They are of course speaking in the context of the question, “If God (sic) is good, why do bad things happen?” or similar statements and questions. However, on a very concrete level, we DO know why this happened. It happened because people can obtain and use automatic and semi-automatic weapons and ammo, making it possible to kill or maim, for example in this instance, more than 60 people in one minute–and that apparently included reloading or changing weapons. I agree with you about the hunting and self-defense issues. These need to be separated from the automatic and semi-auto issues and maybe we can get some useful legislation.

  3. Amazing. Thank you.

  4. Thank you HecateDemeter! Makes perfect sense to me. We had the Brady bill, after that horrible shooting, and testimony in congress, but they allowed the Brady bill and it’s requirements to lapse, and just last year Gabby Giffords was seriously injured and her aides and innocents killed by another nut, and she had to drop out of Congress as a result of being shot in the head. Then here in Oakland, 7 people were killed by another disgruntled medical student. The answer is not “more guns”! Like the gun nuts suggest. We have PLENTY of those in Oakland, and there are plenty of people dying in the streets from them. No ‘open carry’ or any of that. I am all for strong gun control laws, and perhaps allowing someone to have one at home to protect one’s residence if need be, or who works a dangerous job and comes home late at night. But other than that, the more guns that people have, the more violence or injuries are bound to happen.

    Then you have kids getting into those guns. There is NOTHING safe about them. Those countries who have strict gun laws have far less murders taking place. Or gun accidents for that matter. AND NOBODY but the military or SWAT teams need automatic or semi-automatic rifles. Those are just killing machines! One of the best movies around all this that I saw was what I consider Nicolas Cage’s best role: “Lord of War”. It is a real commentary on this gun business. A real social commentary that did not get alot of press. The gun debate is very parallel to the abortion debate and it seems as if it’s the same two sides that it falls down: the right wing conservatives that push ‘God, guns and gays’ issues(and I’m not talking gay rights but just the opposite, anti-gay strike down every right for us), and also anti abortion, control a woman’s life and womb, and then those who are moderate, liberal, progressive that are for a woman’s right to choose, freedom of religion, and strong gun control. Having a gun does not make someone more American than one who does not have one, but certainly enables someone with one the ability to be a bully to those of us who do not, or a perpetrator. Guns are meant for ONLY one purpose: to kill. Period. They serve no other. And it makes it easy to kill another, or put the fear into another, without the ability to easily fight back against it. The gun is loaded and from a distance a trigger can be pulled. With a knife, one risks it being taken away, and it is a more horrifying way to go, less pull a trigger, shoot, walk away. And hand to hand combat, no weapons, gives everyone a fighting chance to get out of there, putting each person at even greater risk of bodily harm. It’s a theory I have had for years teaching and doing the martial arts. One can defend against another, perhaps even disarm someone with a knife, but it is very, very hard to defend against a gun unless they are up close point blank range and it can be taken away through a restraining hold. But it is immensely risky, and one wrong move,it’s over. Gun violence almost sanitizes murder, in a way by keeping the gun owner from physical risk, like this guy with his combat suit.

    But then, almost every action movie, including Batman, diplomacy is served at the point of a gun.There are countless scenes in countless action movies where the hero dodges barrages of bullets and fights back with his own loaded weapon. Everything is solved at the point of a gun. No wonder Americans are such gun nuts! It’s literally programmed into them, through our movies, as well as the constant second amendment talk.

    I sure hope there is SOME light at the end of this very dark tunnel, where some sense can be talked into politicians to act to actually create policies, with our pressure, to find some solutions to stop these horrors in their tracks.

    Meanwhile, I’m reading at the same time about a Lesbian perpetrated against by 3 men in Lincoln, Nebraska, tied up, carved up with hate words, and left in her house to die while they poured gasoline and lit a fire. And just a few weeks before two Lesbians in Texas were shot at in a park by men, and one died, the other in serious condition. These are crimes committed against my sister community members, and puts fear into EVERY Lesbian throughout the country. When will the perpetrations stop? Not just in public movie theaters, but throughout the nation, and often at the end of a gun by bullying males.

  5. Right on cue: <a href="http://www.syracuse.com/news/index.ssf/2012/07/rochester_man_shoots_and_kills.html&quot;A Rochester man staying in a motel in Old Forge shot and killed his son early this morning thinking his son was an intruder, state police said today.

  6. The utter sham that is courts like the Supremes interpreting the Second Amendment has been with us for some time. As you point out, they are quite willing to violate the cardinal rule of interpretation to white out the entire first clause about militias. Even more ludicrous is a guy like Scalia, who claims to interpret the Constitution as written and as intended in 1789, not only leaving out half of the Amendment, not only writing in the words “hunting” and “self protection,” but also insisting that the founders intended “arms” not to mean muskets but also fully automatic 21st century assault rifles, night vision goggles, anti tank grenades, and probably nuclear and biological weapons if the NRA demands it.

  7. Good article. I’d quibble tho that your argument that the Commerce Clause allows the government to regulate both hunting and personal protection arms is only applicable to interstate gun sales. A state that manufactured it’s own arms would seem to be perfectly free to do whatever it wanted…….

    • The Commerce Clause covers items in intrastate commerce–or even ones not in the stream of commerce at all–that substantially affect interstate commerce. Wickard v. Filburn was a case about wheat grown and used on one farmer’s land, never bought or sold by anyone, but found to be within the scope of the Commerce Clause. Gonzales v. Raich was about home-grown marijuana that was never bought or sold. The Civil Rights Act applies to restaurants that only serve locals and only use goods and equipment from within the state.

  8. Speaking as a citizen of Chardon, Ohio – the scene of one of the more recent school shooting tragedies – I can only say that a gun didn’t make it better, and more guns would have made it worse.

    How about, anyone who sells a gun to anyone that is used to commit a crime (or from whom a family member acquires a gun used to commit a crime) should be legally considered an accessory to that crime? That might make the background checking process a little more interesting.

  9. I know that letting every nutjob in America load up on automatic weapons is inimical to the “security of a free state.”

    What you apparently didn’t learn in law school is that very few people in the United States have automatic weapons, that they’re strictly regulated and have been for many decades, and that that an automatic weapon wasn’t what was used by this nut job. He used a hunting rifle. It might be designed to look like a military rifle, but operationally, it’s not a different weapon than something someone would take deer-hunting.

    So if you want to have an honest discussion, be honest (and also have a clue as to what you are talking about). You have to talk about getting rid of (almost) all firearms.

    • A hunting rifle with a 100 round clip? And you’re serious?

      It’s assholes like you that are getting people killed. What type of hunting requires 100 shots without reloading?

      • Margaret D. Blough

        Also, whether one is hunting for trophy or for food, blasting the crap out of the prey is the last think the hunter wants to do. I’m not a hunter, but I grew up in a rural Pennsylvania school district where hunting was so prevalent we thought we were pretty advanced in only getting the first day of buck season off and not the beginning of antlerless deer season and bow-hunting as well.

  10. HD, I believe that the author is using the term automatic to include semi-automatic and fully-automatic weapons (both types are automatic weapons). The link you supplied applies ONLY to fully-automatic weapons. And, since you want to have an honest discussion, I believe you understood the author’s intentions but posted that link to muddy the waters.

  11. One thing I would like to add is that the language of the amendment clearly undermines the NRA interpretation that guns are a bulwark against state violence against an individual citizen. Not only would that make no sense in the modern world, but the amendment says that a well-regulated militia is “necessary to the security of a free State”. This amendment is about the rights of the states to defend themselves against other (presumably external) enemies. So, you have to completely ignore whose security is supposed to be protected. To emphasize the point: this amendment explicitly protects only the security of the State, not any individual’s security against anything (let alone the power of the state itself since that interpretation appears actually contradictory to the language of the amendment).

  12. Brilliant, as usual. It is your thoughtful and wise approach to these large issues that I appreciate so much. Experience and passion and the ability to articulate what you actually mean–while grinding your teeth in fury and grief–is the mark of a true leader. I honor you for that. And for this strong and reasoned piece.

  13. Gun nuts often claim that the (secret or implied) intent of the Second Amendment was to make armed rebellion possible, since our indepence was a result of that. In reality the success of rebellions often depends on outside assistance from military powers; in the case of our independence, it came from France. Possessing guns does not necessarily give a population the ability to replace its government.

  14. Excellent post. And thanks for the law instruction.

    The origin of the 2nd Amendment is much different than NRA types imagine. The amendment was tied explicitly to state militias. Thanks to your explanation of statutory interpretation I understand why Madison worded the amendment leading with well regulated militia. The discussion only came up in state conventions called to approve or disapprove the Constitution. The discussion was triggered by the Constitutional provision for a federal army. The 2nd amendment became an anachronism by passage of the Militia Act of 1903.

    It’s impossible to have an adult discussion about this issue as long as big private money so utterly controls and corrupts government. There’s just too much money in gun sales and the arms industry financed NRA won’t countenance any limits.

  15. I think HD’s point was that one doesn’t need military-grade weapons to commit a massacre. Charles Whitman, for example, used ordinary hunting rifles in the UT tower shooting. They were powerful weapons, sure, but theoretically any nutcase with a common, small-caliber handgun could open fire in an enclosed public space (i.e. movie theater, fast food restaurant) and do serious damage. So what’s the answer? A total elimination of firearms?

    • “So what’s the answer? A total elimination of firearms?”
      Yeah right. That’s the answer.
      How about this you idiot. Let’s start by banning 100 round clips. Or is that too radical for you?
      There is a whole lotta room between a total ban and some sensible restrictions.

      • Sensible restrictions, sure. Like most Americans I am in favor of a reasonable amount of gun regulation. But my point, again — and congrats on missing it completely — was this: a highly-motivated lunatic can massacre people with any generic, ubiquitous firearm. Revolvers, shotguns, semi-auto pistols, bolt-action carbines, semi-automatic rifles, etc. etc, the results are still the same. It really doesn’t matter if he uses a 100-round barrel magazine or multiple smaller clips (the 100-rounder jammed on the Aurora killer, actually, as cheap plastic ones will).

        But you said this: “‘Let’s start’ by banning 100 round clips”. So, okay, you start with this ban (and bear in mind that a ban would only drive up prices and create a thriving black market; it’s sort of like the War On Drugs — which has made drugs so totally impossible to find)… then what? 31-round clips? 18-round clips? A few of these would be just as effective as a 100-round magazine. Would you ban the scary black ‘assault rifles’* that seem to frighten pampered suburbanites, or semi-auto firearms altogether? If the Aurora killer had used a revolver and shotgun to murder people would that have been more acceptable? Should we ban those too? How far are you willing to go on this? Because short of a police surveillance state you aren’t going to make the guns go away.

        *And FYI: true ‘assault rifles’ are fully-automatic, select-fire machine guns which are heavily regulated. They are not the semi-automatic rifles that get used in rampage-style shootings.

      • I’m willing to ban most if not all handguns, except where proof a definitive need.

        I’m getting pretty radical in my old age. And I own and have owned guns my entire adult life.

  16. If we armed the fetuses, there’d be no more abortions

  17. James E. Powell

    What I learned in law school was that the reasons statutes are enacted, the way that they are written, and the way that courts interpret and enforce them has very little to do with abstract notions like justice, or right and wrong. It’s all about power and who has it.

    How many politicians have lost elections because they supported the NRA and its policy of no restrictions on gun sales or ownership? How many have lost because they went the other way?

  18. I’m not sure about the contention, “Ask any police force…” as it was widely publicized that Missouri’s C&C bill had the support of the St. Louis PD. Police like their guns; they like guns generally. Patrols responding to robbery or home invasion recommend the victim buy a gun. Police don’t bother Tea Party Patriots who march around with guns because they look like themselves (or their dads) in civilian clothes. Police beat the shit out of Occupy protestors because they don’t use guns and look like hippie freaks. Sure, police don’t want to be outgunned by nutjobs, but they’d also kind of like it if we, y’know, took care of business on our own.

    Not that I would agree with them.

  19. This Is Living!

    “I read an article, well, I read the majority of an article online about how every person in America who owns a firearm is secretly a crazy gun nut who wants to build an arsenal so he can take down the Federal Government… What? That’s not a real puppy, that’s too small to be a real puppy!”

  20. You write:

    “Ask the police what they think about the idea that, if
    there were only more people carrying more weapons into
    theaters, we’d all be safer.”

    Funny, I was doing just that at work today, as a cop myself, I was chatting with a group of other SoCal cops about the Aurora shooting and all of us agreed that it was too bad there wasn’t someone else armed in that theater last week.

    Armed citizens have stopped spree killers before. (Google the Appalachian Law School incident, where an armed student stopped the killer by confronting him with a gun of his own; the Pearl, MS, school shooter was stopped when the vice principal retrieved a licensed handgun from the trunk of his car and confronted the perpetrator; and an armed parishioner was able to stop the New Life Church shooter in Colorado Springs before he was able to shoot up the congregation.)

    “Ask any police force in America what they think about
    reasonable gun control and they’ll tell you that they are
    all for it.”

    Not hardly, sister. Cops are pretty much anti-gun control across the board. It’s only the political slaves at the top of the police departments, who have to tow whatever line du jour from the mayor and city council or lose their jobs who are publicly anti-gun ownership.

    So much for what this ‘woman living in the 21st Century knows for a fact’.

    • “Armed citizens have stopped spree killers before.”

      So the obvious answer is to allow 100 round clips to everyone. You’ll only be able to kill a few dozen before hopefully someone can shoot you.

      How’d that work out last week in Colorado?

      God you people are stupid.

      • Apparently the word “obvious” means something different in your language than it does in the English-speaking world.

  21. Very nice arguments about letting all the words have their proper effect. We must also let the grammar speak. “the right of the people to keep and bear arms” is the independent clause, the one that carries the main meaning. The militia clause is there to explain why this obvious right was a Federal issue in the first place. Remember that the founders thought both clauses not only true, but uncontroversial. They could have written “The sky, being blue, the right of the people to keep and bear arms, shall not be infringed.” to the same effect.

    Yes, circumstances have forced us to have a standing army, with reserves, and large police forces, but they are not the militia, and the courts have repeatedly held that they are not. USC10, title 45(?) defines the militia, and it is still what the 1791 definition was: the body of the people, armed for war.

    There’s a process for changing the Constitution, and it is not arguing about it, but amending it. Ideally, anyway; I’m failing to mention the tacit “amendment” process where Congress and the Executive decide that parts of the document are inconvenient and ignore them.

    Common law does provide for not letting nutjobs have weapons, so you have plenty of room to argue about how to implement that. Now, if you will excuse me, I have to perform maintenance on the family nukes 😉

  22. Pingback: Links 7/24/12 « naked capitalism

  23. It is a nit that I pick but one that was enough to stop reading the article right there…the authors of the Constitution could indeed imagine Marines, because the Marine Corps was formed in 1775. In an article talking about carefully considering every word, that oversight sent me straight here and now navigating away.

  24. The fact that we as a nation have created a powerful and extremely well-armed professional standing army at the federal level, isn’t really a compelling argument that individual gun ownership should be limited – as a policy matter at least.

    That said, I generally agree with you about what the second amendment means. It’s really about balancing the power of the state and federal governments. A free state can allow its citizen militia (defined in any manner consistent with the 14th amendment) to keep and bear any arms that the state deems appropriate and federal regulations can’t trump that determination. The second amendment doesn’t create an individual right (the founders knew how to create those, see e.g. Amendment IV), it creates a state right to maintain a well-armed citizen militia as a hedge against federal power.

  25. Without taking a position on gun control, we also need to talk about affordable mental health care accessibility. How many spree killers were deterred because they got help? We’ll never know. The Aurora “joker” is not well. Schizophrenia usually manifests in ones early 20s.

    Tim McVeigh killed a lot of people with fertilizer and gasoline. With a ban on guns, mass killings will still take place. Look for a rise in the use of IEDs.

    Most people agree on the need for gun control. We just cant seem to get a consensus as to “how much.”

  26. When those men wrote the Second Amendment to our Constitution, America didn’t have a standing Army, Navy, Air Force (they could never have imagined!), Marines, National Guard, and Coast Guard. We didn’t have a police force in every town equipped with tasers, drones, heat sensors, electronic spies, and the ability to nab your cell phone and entrap your friends. We can argue, as an esoteric exercise, about whether or not all of those abilities are good things, but they are, right now, facts. We, the people, have turned over to the government our need for a “well-regulated militia.”

    Indeed, we had to. The founders may have had a well-founded mistrust of standing armies (or maybe not), but their notion that state militias could provide the first line of national defense was debunked by the War Of 1812, in which America’s weekend irregulars and barely-there Federal forces managed to lose Detroit and barely escape the razing of Washington D.C. by British professional soldiers. (It’s simultaneously ironic and unironic that the United States’ best successes came at sea and on the Great Lakes–ironic, because the British had the best navy in the world; unironic, because even if Congress didn’t want to pay for ships and sailors, what they did pay for was a bunch of professional seamen well acquainted with the complex tools of fighting at sea–almost the exact opposite of a militia).

    And the question of whether or not state militias could take up arms against the Federal government was pretty conclusively resolved by the American Civil War, or one would have thought so, at least. It’s a bit pathetic that the states most opposed to gun regulation and receptive to the idea that their citizens need guns “against tyranny” overlap with the states that seem to have forgotten that time they got their butts kicked for armed insurrection.

    It is hard to believe that if the founders could have foreseen the following twenty-to-eighty years, they would have even bothered with the Second Amendment. It was obsolete almost as soon as it was ratified. Indeed, in setting up the militia-oriented defense regime they did, it’s almost as if they’d forgotten their own recent history: American irregulars performed rather badly against British regulars and could have done much worse if it hadn’t amused the French and Dutch to lend support to the rebel colonies long enough for the British public to become fatigued by the whole thing.

    And now it’s an albatross around our necks, it seems.

    Thank you for the post, by the way, which is excellent.

    • David Marjanović

      That general distrust of standing armies was widespread among 18th-century intellectuals. In particular, one consideration was that a standing army would make it too easy to create a dictature, especially a military dictature*.

      Somehow I don’t think the state militias are what has prevented this from happening in the US.

      * While the Founding Fathers of course had no experience with 20th-century military dictatures, they knew things like Oliver Cromwell and the Roman “soldier emperors” very well.

  27. “But we need to understand that the Second Amendment has NOTHING to do with hunters. It protects the right of citizens to bear arms in order to allow those citizens to be drafted into a ‘well regulated militia.'”

    Um, no. See District of Columbia v. Heller, and McDonald v. Chicago.

  28. I thought the idea of a “well regulated militia” was what that General (Washington, I think) wanted (secretly, since he didn’t participate too much, overtly, in the writing of the constitution) due to the fact that those “Americans” who fought with him, (though, they knew how to shoot) were not “well regulated” and were in a lot of cases more of a detriment than an asset in the fight against the “well regulated” Englishmen.

  29. Much as I believe the US needs tougher gun laws, the example of a relatively civilized and peaceful Europe suggests that it is indeed people who kill people, not guns. There is something terribly wrong in this country, among which the ubiquity of guns and the high murder rate no matter what weapon is used are symptoms. Why are so many Americans so seriously disturbed, and why do they think killing a lot of strangers will make them feel better? Why do so many cling so desperately to their guns? Why do irresponsible politicians ensure their popularity by proposing conceal and carry laws? Why are British police so lightly armed while US police, funded by laws meant to stop terrorists, arm themselves with more and more weapons and armor when they encounter peaceful protestors? Why does the US have the second largest prison population in the world? This is a very sick country. Why?

    • David Marjanović

      Why are British police so lightly armed

      They were armed much more heavily till guns were practically outlawed. Since then, since even the outlaws don’t have guns, the police doesn’t need them anymore either. That’s why.

      Why does the US have the second largest prison population in the world?

      Because the US has relinquished one of its duties as a country, as an organization, and outsourced much of the prison system to private, for-profit corporations. Those corporations then lobby for, say, three-strikes laws, possession of traces of pot to be punished by prison sentences, and all that rot.

      This is a very sick country. Why?

      Vicious circle that includes lack of information.

  30. your cover of law school is retarded. plenty of lawyers in america will tell you the one thing you should learn in law school is that the law is merely a smokescreen. it’s a tissue of lies. what’s important is the history of man. all laws reflect the history of human beings. The u.s. is no longer a colony of england because it rebelled against a tyrannical government operating from a distant land and imposing excessive taxes.

    your point that just because the u.s. government is all powerful, runs a giant empire with atomic weapons , can destroy all ‘domestic’ militias, an operates without impugnity all over the 50 states with leadership based in DC—only operates to buttress the underlying point that documents of law, like the magna carta and constitution of the united states, documents containing the spirit of the law, exist because organized tyranny recurs like clockwork in human history. men of conscience , men who write about injustice to find common cause with fellow human beings seeking only freedom from persecution——–organize the ‘law’ into a set of docuements meant as a guide, as inspiration , for other men hoping to one day throw off the violent oppression of tyranicall governments.

    your whole tome about gun control ignores the natural imbalance between tyranicall governments and the rights of individuals to legall own modern hand guns , rifles, and right to organize men with weapons.

    it is the height of irony that those liberals who for years have been decrying the unjust aggression of the u.s. military to occupy foreign countries for OIL and naked power, are the same people who blindly and thoughtless yearn for the domestic u.s. government to take away the last vestiges of physical protection , and the rights of STATE citizens to organize into State Miliitias . Criminals cannot resist tyranny, organized groups of men at least have a chance at checking the powers that be.

    The notion that a foolish tragedy like that in colorado can be used to simply brush away the greater context of history, all because of your legalese interpretation, is simply another self delusion that lawyers and ‘security’ minded sheep fall into because they have no greater ability to filter out the nonsense of daily life and focus on the wisdom of centuries.

    please, next time you feel threatened, go back into your house, and wait for the cops to take care of things. next time you feel the government is spying on you or overtaxing you, simply file your complaint with the local court, because as we know the judicial system is incorruptible and held completely independent because of our impregnable system of checks and balances.

    shakespeare said “the first thing we do, we kill all the lawyers”. there’s a reason, because lawyers killed common sense.

    • David Marjanović

      Get over it, it’s a fact: you can’t fight against the US government and hope to win.

      Calling it common sense that you could doesn’t make it true either. Even killing all the lawyers with your “legall own modern hand guns , rifles, and right to organize men with weapons” won’t change that.

      Stop being in denial.

  31. I’m a lawyer too (also with grandchildren) and as progressive as they come. But as the person above me just pointed out the second amendment is the anti-tyranny amendment. I totally agree that this is not the self-defense amendment. I certainly don’t want six people shooting at each other in a theater.

    But as you so aptly point out, the United States has the strongest military on the planet and we are a hair-breadth away from a police state. The first amendment is now used for propaganda for the police state. The fourth amendment is now a joke. The fifth amendment is not in much better shape. The Bill of Rights is in serious jeopardy.

    Corporations now own the government, the media, the economic system and much of the country. Mussolini described fascism as the merger of corporate and governmental power. We certainly meet Mussolini’s definition.

    Laws are passed daily making a fascist police state more probable than the day before. If ten years from now we go full bore Nazi Germany, if all of the weapons specifically designed for killing people (not those for hunting) are taken out of our hands, how will we resist? I cringe when I hear statements from the police about how they think we all ought to be unarmed. They are already brazen as hell. Many are downright sociopathic.

    I have never owned a gun. But the irony is the weapon I would want most to make some credible deterrent against a fascist police state is one I most surely can’t have. I would like a stinger missile. Something capable of taking out a tank or a drone. Of course I have no chance of that. Our founding fathers not only had guns, they also had private frigates with cannon. And they had cannon in their militias. And they took on the strongest empire of the era and won.

    Many of the government’s weapons are useless in a revolutionary situation. We still have a credible deterrent with all the guns in hands of the people, but we actually need more that are capable of taking out tanks and aircraft, to be a really credible deterrent.

    If we really don’t want nut jobs killing people with automatic weapons, I think a far better course would be to vastly improve our mental health system rather than to try to regulate guns. If we spent one thousandth of what we spend on the military on making sure that those with mental disorders are identified and effectively treated and getting the truly desperate the financial help they need, I doubt there would be much of a call for regulation of guns.

    • David Marjanović

      If ten years from now we go full bore Nazi Germany, if all of the weapons specifically designed for killing people (not those for hunting) are taken out of our hands, how will we resist?

      If they’re not taken out of your hands, how will you resist?

      Under Saddam, every man who considered himself one owned an AK-47 and knew how to use it. Saddam’s army, police and so on simply outgunned everyone else; no rebellion against him ever succeeded; few ever even started.

      All you can do is nonviolent. Keep raising a stink. Keep protesting aloud. Keep voting. Keep making sure your vote is in fact counted (something that’s handled head-explodingly sloppily in the USA).

      And they took on the strongest empire of the era and won.

      With lots of help from the French army. The king of France was ready to do pretty much anything to annoy the Brits.

  32. September 30, 2009
    Penn Study Asks, Protection or Peril? Gun Possession of Questionable Value in an Assault
    News Release
    Those possessing gun in assault situation 4.5 times more likely to be shot than those not possessing one


    PHILADELPHIA – In a first-of its-kind study, epidemiologists at the University of Pennsylvania School of Medicine found that, on average, guns did not protect those who possessed them from being shot in an assault. The study estimated that people with a gun were 4.5 times more likely to be shot in an assault than those not possessing a gun.
    The study was released online this month in the American Journal of Public Health, in advance of print publication in November 2009.

    “This study helps resolve the long-standing debate about whether guns are protective or perilous,” notes study author Charles C. Branas, PhD, Associate Professor of Epidemiology. “Will possessing a firearm always safeguard against harm or will it promote a false sense of security?”

    What Penn researchers found was alarming – almost five Philadelphians were shot every day over the course of the study and about 1 of these 5 people died. The research team concluded that, although successful defensive gun uses are possible and do occur each year, the chances of success are low. People should rethink their possession of guns or, at least, understand that regular possession necessitates careful safety countermeasures, write the authors. Suggestions to the contrary, especially for urban residents who may see gun possession as a defense against a dangerous environment should be discussed and thoughtfully reconsidered.

    A 2005 National Academy of Science report concluded that we continue to know very little about the impact of gun possession on homicide or the utility of guns for self-defense. Past studies had explored the relationship between homicides and having a gun in the home, purchasing a gun, or owning a gun. These studies, unlike the Penn study, did not address the risk or protection that having a gun might create for a person at the time of a shooting.

    Penn researchers investigated the link between being shot in an assault and a person’s possession of a gun at the time of the shooting. As identified by police and medical examiners, they randomly selected 677 cases of Philadelphia residents who were shot in an assault from 2003 to 2006. Six percent of these cases were in possession of a gun (such as in a holster, pocket, waistband, or vehicle) when they were shot.

    These shooting cases were matched to Philadelphia residents who acted as the study’s controls. To identify the controls, trained phone canvassers called random Philadelphians soon after a reported shooting and asked about their possession of a gun at the time of the shooting. These random Philadelphians had not been shot and had nothing to do with the shooting. This is the same approach that epidemiologists have historically used to establish links between such things as smoking and lung cancer or drinking and car crashes.

    “The US has at least one gun for every adult,” notes Branas. “Learning how to live healthy lives alongside guns will require more studies such as this one. This study should be the beginning of a better investment in gun injury research through various government and private agencies such as the Centers for Disease Control, which in the past have not been legally permitted to fund research ‘designed to affect the passage of specific Federal, State, or local legislation intended to restrict or control the purchase or use of firearms.’”

    This study was funded by the National Institutes of Health. The authors are also indebted to numerous dedicated individuals at the Philadelphia Police, Public Health, Fire, and Revenue Departments as well as DataStat Inc, who collaborated on the study.

    Therese S. Richmond, PhD, CRNP, School of Nursing; Dennis P. Culhane, PhD, School of Social Policy; Thomas R. Ten Have, PhD, MPH, and Douglas J. Wiebe, PhD, both from the School of Medicine, are co-authors.

  33. Both the “well regulated militia” and the “security of a free state” phrases make it clear that the intention of the Second Amendment is to protect the right of citizens to own military weapons. The second amendment is not about target shooting, or hunting, or even about protecting one’s home against intruders. It is about the right of citizens to possess the kind of weapons that are used on the field of battle. One can argue that this is a silly and outdated idea, or that it was never a good idea in the first place, but I personally would disagree with that. Some people also, and quite seriously, argue that freedom of religion is a silly and outdated idea because nowadays all right-thinking rational people realize that religion is a form of mental illness. Both Sam Harris and Richard Dawkins have made this argument explicitly.

    Also, one should exercise a bit of caution when talking about “the privileged white men who wrote the Constitution”, when in fact the subject at hand is the Bill of Rights. The Bill of Rights came in response to a genuine popular outcry “from below”. And one of the reasons why the popular movement demanding the specific enumeration of the rights of individual citizens had to be listened to was because the citizenry was armed (and recall that the Constitution and the Bill or Rights came into existence during the same period that saw the French Revolution break out – in other words the possibility of a second, more radical Revolution in America was quite real).

    Far from being a reflection of the process of legally validating the power and privileges of a minority, the Bill of Rights was part of a very different dynamic, which eventually included the 13th, 14th, 15th, 17th, 19th, 24th and 26th amendments, all of which expanded the rights of those who were not among the privileged and the powerful. Hopefully one day yet another Amendment will be added to that list!

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  35. Did they not teach how constitutional amendments work in law school?

    ” The government already possesses the power, under the Commerce Clause and under its police power, to regulate arms used for hunting.”

    Let’s stipulate for the moment that Commerce granted some ability to regulate arms (I’m not so conceding, but just for the sake of an argument, let’s pretend that it does). The Commerce Clause was in the original document.

    The 2nd Amendment is just that – an amendment. When there is conflict between the original document and an amendment, the amendment wins, because it’s specific purpose is to alter the original document.

    So when the choice is “the gov’t can regulate arms” or “the right to keep and bear arms shall not be infringed”, the 2nd Amendment has supremacy over the original document.

  36. I have never read such a load of crap in my life. What a bunch of panty waisted sissies. Just because you are afraid of guns doesn’t make those of us who aren’t nut jobs. I have guns for all sorts of reasons. Members of my family that were in New Orleans during Katrina would have been stripped of everything they owned and murdered where they lived had it not been for the firearms they owned. That is one reason to own guns. Others are as numerous as those of you who have no ability or will to take care of themselves in dangerous situations. You spout the same old tripe about children endangered by guns and other such crap, when in fact there are 100 children killed or maimed in car accidence to every one hurt or killed by a gun. The real nut jobs are people who think government is here to protect you or man is somehow becoming kinder and gentler. Nothing has changed in human nature and never will. The veneer of civilization is only a thick as two days without food and water. You go with the hope that man is intrinsically good, I’ll keep my guns.

    • Just because you are afraid of guns doesn’t make those of us who aren’t nut jobs.

      Yeah, actually it does. I hope that any responsible gun owner has a healthy respect for what his weapon is capable of, and a diligent fear of the consequences of mishandling it while cleaning or operating it. As for being on the other end of it: I don’t care whether you’re armed or not, being afraid of a gun pointed at you is a perfectly rational response to, you know, having a gun pointed at you.

      Your response reminds me of those rats afflicted by Toxoplasma gondii. T. gondii is a parasite that spends part of its life cycle inside rodents and part of its life cycle inside cats. Now, obviously, there are some issues with getting from one place to the other, so here’s the nasty clever thing T. gondii does to get from rat to cat: it infects the rat’s brain and rewires it so the rat’s instinctive fear response to cat piss is replaced by a great love and joy of cat piss. So when one of these rats comes near, say, a litter box, instead of doing the smart and rational thing (if you’re a rat) and high-tailing it the other way, an infected rat loiters and saunters around–“Hey, wow, this place smells great!“–and that’s where the rat happens to be when the cat comes back to take a leak. Which is typically bad for the rat. Entertaining for the cat. Excellent and destiny-fulfilling for T. gondii.

      I’m not saying you’re infected by mind-altering protozoa, Luxtexente. And it isn’t really a metaphor. The point, rather, is that a rat avoiding feline urine isn’t a lesser rat for it–indeed, he’s far more likely to remain an intact rat. Fear isn’t an insult, it’s often a perfectly sensible way to react to something.

      Now, that doesn’t necessarily mean one flees the object of fear. Rats should flee cats, yes, but this is because rats are small and relatively less-pointy than cats are, etc. But one should at least exercise caution. Perhaps one owns a gun because one is a hunter–and hunting can be a useful, necessary, socially productive, environmentally helpful activity; but one should, nevertheless, be appropriately afraid of the tools. One should be aware of where the weapon is pointed, whether the weapon is on safety or armed, whether the weapon is well-maintained and properly cleaned, where other hunters in the vicinity are, etc., etc. One does so because one is afraid, both for oneself and for one’s fellows. One does not want to shoot himself in the foot, or accidentally kill or injure another hunter. One has the proper respect for the lethality of the instrument he uses.

      Honestly, Luxtexente, I’m not just afraid of guns. I’m also afraid of you, whoever you are.

      • You actually ended your discourse well. It is respect not fear. People that think guns are the problem are afraid. The issue is proper training and healthy respect. I really don’t disagree with your concerns, that is why I teach gun safety classes. I am just over people trying to disarm people because they are afraid. And you really have nothing to fear from me. I always know where my gun is pointed. I have only had to raise a firearm in self defense once and did not have to shoot the perpetrator. But if fear keeps someone from hurting me or mine so be it. Leave me and mine alone and all will be well with them. But man is not intrinsically good and if the really bad ones need to fear someone to do right, that works.

  37. David Marjanović

    What a bunch of panty waisted sissies. Just because you are afraid of guns doesn’t make those of us who aren’t nut jobs.

    Trying to insult people by calling them women, on the other hand – that makes you a nutjob.

    Members of my family that were in New Orleans during Katrina would have been stripped of everything they owned and murdered where they lived had it not been for the firearms they owned. That is one reason to own guns.

    That’s a complete failure of the US as a country! I’m told that in the US, if it’s a “good neighborhood”, the police come half an hour after you call them, and if it’s a “bad neighborhood”, they never show up at all; where I come from, the police is there in five minutes after you call.

    Why do you even have a country, a government, when it doesn’t work any better than anarchy?

    You go with the hope that man is intrinsically good, I’ll keep my guns.

    Try anxiety meds instead. Whoops, you can’t afford them, because your failure of a country can’t even provide health insurance for you. Too bad!

    • Rather be a nut job than a coward. But whatever you want to be is entirely up to you. Good luck with that.

    • Calling everyone who owns a firearm a nutjob is of course of the highest intellectual character and very much an argument of the highest magnitude. Thank you for using your intellectual prowess for setting me straight. I no longer have a desire to call you an intellectually inferior, moronic baffoon. Thank you.

  38. If you don’t like my country then don’t live here. I’m quite sure we can do without you. If you don’t like what we are here in this country go back to your obviously more successful country. I’m sure they’d love to have you back.

  39. Read the works of Jefferson who said every government should be overthrown every 20 years so that the government will always fear the people. Do you think our government fears it’s people now? The 2nd amendment was not written for the evolution of guns (Side note our founding fathers did see innovations in weapons as we do now flintlock to muskets. less than 50 years after that the gattlen gun) Our forefathers if they had Phasers would still have written the 2nd amendment. It was written to STOP A TYRANNICAL GOVERNMENT FROM OPPRESSING THE PEOPLE. But be a sheep – let the government tell you what to do. As for the other countries who do not allow their people to carry, here is a fact that you anti-gun people leave out THEY DO NOT HAVE POLICE BRUTALITY LAWS EITHER. A cop can beat you to death and will not be sued. So Lets give the cops that power and allow them to beat pot smoken liberals to death with out being sued and I will give up my guns. I dare anyone to go to another country NOT America light (AKA Europe) and really see the world for what it is. It is easy to be a saint in heaven. The day that men like Hitler, are no longer born will be the day we can actually give up guns and I will gladly do so. But until that day I will be the man who protects your liberal views, and your freedoms from people like that. And do not forget People with GUNS protect you when you do not have the courage to do it yourself.

    • But until that day I will be the man who protects your liberal views, and your freedoms from people like that. And do not forget People with GUNS protect you when you do not have the courage to do it yourself.

      Thank you for your kind offer, but please don’t bother yourself on my account. No, seriously. Don’t. Really. You and your guns are just going to get someone killed. Probably yourself. Possibly me. I really think you versus the government is going to look a lot less like John Wayne and a lot more like Paul Newman and Robert Redford. Anyway,I’m really fine worrying about my liberal views without you getting yourself outgunned by the local police.

      Who, by the way, will claim Eleventh Amendment immunity against your estate’s lawsuit. Just sayin’.

      • the government is actively paying people , propogandists to post things online , to post comment, supporting government power and statism.

        gun control is one of the biggest of all issues. every govenrment from communist to ultra capitalist wants to increase its own power. it is a law of nature. institutions exist to empower themselves by paying their leaders more money and to employ more people and expand the groups power.

        when it comes to internet postings and ‘articles’ and news about gun control you can bet money is being spent on propoganda. many people will read this and then say, but HEY the NRA is doing this in favor of guns. yes, thank god that we are still in a position where this country’s government has not made the NRA illegal.

        America is a nation of indiviuals and families. It is not a government , it has a government. the government is NOT the best protector of the people, civic groups and the public interest activities of non-governmental institutions protect the people from rapacious oligarchs and government thugs. Not the other way around. the statists out there who recommend that an ultra-capitlist government or communist government should have as much power as is possible to repress ‘trouble makers’, these people would have their govenrnment commit genocide in the name of the ‘people’. it always works this way. statists versus rational individuals who are organized violence by government against people—whatever the ‘rational’.

        please, i invite any of you on this board to begin arguing about how gun control has nothing to do with statism. That would be like arguing how nuclear weapons treaties have nothing to do with warfare and statecraft.

      • I know I shouldn’t, but… I have to….

        I just wanted to know, tesla, how I could get my hands on some of that government propaganda money. Is there, like, a secret post office box I can send a writing sample to? Or do I just have to wait until I get abducted by a SpecOps team in a black helicopter and then drop hints to my captors that I have a couple of years’ blogging experience, one published short and a folder of possible samples/submissions on my laptop that could be added to a public Dropbox folder or converted to RTF and e-mailed? (Also can convert to DOC if that’s a preferred e-subs format.) And do you know if you get paid by the hour, the word, per submission or is it a salaried position (and if so, what GS-rating do you start at)? Also (because this is important), do you get full Federal health and retirement benefits or are you treated as a contractor/subcontractor to fend for yourself?

        Thanks in advance for the heads-up about this exciting job opportunity!

  40. fear attracts fear; violence begets violence. There is no death. only lessons. We just transition.

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