What I Learned in Law School: Update

Thanks to Atrios and Quilt Lady, as well as to a whole bunch of wonderful people on Twitter, my essay about the Second Amendment has garnered a number of comments. Rather than answer individually in the comments section of that post, I thought that I’d respond here.

First, although commenter HD didn’t engage on the legal or factual arguments that I made, s/he corrects my use of the term “automatic weapon.” I’m happy to accept the correction, but it’s, as we say in the law, a distinction without a difference. Digby explains that:

With a few keystrokes, the suspect, James E. Holmes, ordered 3,000 rounds of handgun ammunition, 3,000 rounds for an assault rifle[,] and 350 shells for a 12-gauge shotgun — an amount of firepower that costs roughly $3,000 at the online sites — in the four months before the shooting, according to the police. . . .

He also bought . . . a high-capacity “drum magazine” large enough to hold 100 rounds and capable of firing 50 or 60 rounds per minute — a purchase that would have been restricted under proposed legislation that has been stalled in Washington for more than a year.

(emphasis mine).

The only reason anyone needs an assault rifle or to shoot 50 or 60 rounds per minute is to massacre people. Whatever you call that kind of weaponry, I maintain that freely allowing every nutjob in the country to obtain it is inimical to both “a well-regulated militia” and the “security of a free state.”

Jay Alan Babcock suggested that police departments aren’t always as supportive of gun control laws as I impled and provides several examples to support his contention. And I agree that some policemen don’t support gun control. Yet, the Brady Campaign to Prevent Gun Violence did a study and concluded that:

The majority of police chiefs surveyed supported the proposed firearm control policies, including background checks on handgun and long gun purchases, tamper resistant serial numbers, and prohibiting civilians from carrying firearms in a public setting, among many other policies. Most police chiefs (62%) also believed that the government should do everything in its power to prevent handguns from reaching the hands of criminals, even if it makes it tougher for law-abiding individuals to purchase a firearm. . . . In brief, police chiefs support many potential firearm control policies that could save lives and prevent incidents of gun violence from occurring.

Other commenters said here, and in messages to me on Twitter, that it’s hopeless, America won’t do anything, and, anyway, we’d have to ban all guns in order to save lives.

I just won’t accept that we’re doomed to allow incident after incident where, year after year, innocent moviegoers, students, workers, etc. are killed and wounded. Wikipedia notes that the Virginia Tech massacre:

prompted the state of Virginia to close legal loopholes that had previously allowed Cho, an individual adjudicated as mentally unsound, to purchase handguns without detection by the National Instant Criminal Background Check System (NICS). It also led to passage of the first major federal gun control measure in more than 13 years. The law strengthening the NICS was signed by President George W. Bush on January 5, 2008.

That’s the largely rural state of Virginia and that’s Republican President George W. Bush.

So I just won’t accept that America won’t do anything.

And, I don’t agree that we’d have to ban every single gun in America. I think target shooting enthusiasts and hunters can own guns that don’t shoot 50 or 60 rounds per minute. I think we can have reasonable background checks for the people who purchase guns, ammunition, and protective gear. You can call me cynical, but if the Aurora killer had brown skin and was named Mohammed, people would be in an uproar wanting to know how he was able to arm up without being detected by Homeland Security. But the people in Aurora are just as dead and just as wounded, even though the killer has white skin and is named James Holmes.

Finally, I want to thank the many other commenters who offered thoughtful points. The first step in fixing this problem is having an adult discussion about it.

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.

When Pagans Go into the Courthouse

Appropos of the current controversy over the refusal of Arlington, County, Virginia to allow a Wiccan priestess to officiate at marriages, I’ve listed a few basic steps for anyone who finds hirself dealing with government and corporate officials on such matters:

The actions that you take at the beginning of a case, before you’ve hired a lawyer, often have a huge impact on the final outcome. (Full disclosure: I know Literata and consider her a dear friend. My understanding is that she took and is taking the steps outlined below.)

First, and I know that some of you don’t want to hear this, when dealing with government and corporate officials such as, for example, the clerk of a county court, look and act professional.

That means that, for the half an hour or so that you have to deal with this person . . . .

Read the full post here at the Pagan Square.

Picture found here.