Guns, Pigeonholes and Intellectual Honesty

Quote of the Day:

It is the spirit, and not the form of  law that keeps justice alive.” –Earl Warren

An interesting opinion was handed down yesterday by the United States Supreme Court. By a 5-4 margin, broken down along ideological lines, the Court ruled that Americans have the right to own a handgun which cannot be abrogated by Cities or States in the name of gun control. Conservatives are jubilant, liberals are angry, or so the drivel spewed by the American press would have us assume. Speaking for myself, a liberal thinker disinterested in cheap political labels, I think they got it right. Media, pundits and talkers… oughta know by now, you can’t pigeonhole me.

Because I agree with the Court that the law should have been stricken, don’t mistake me for a “pro gun rights” type. The truth is I hate handguns. From what I’ve read over the years handguns cause exponentially more deaths and injuries from accidental discharge and heat of passion killings by non-criminals than they save in crime prevention. And countries with handgun prohibitions typically have far lower murder rates. I think America’s handgun obsession is misguided at best. However I believe in upholding the Constitution and the rule of law, and that includes the laws I don’t like.

All of our freedoms come with risk. The prohibition against unreasonable searches and seizures puts us at risk of a terror cell keeping itself hidden as it plans attacks. Freedom of speech allows all manner of hateful, traitorous personalities a chance to gain strength through recruitment and intimidation. Freedom of religion means groups like the Moonies and their wingnut newspaper the Washington Times can operate without fear of recrimination. And the right to bear arms allows us the means to go around killing one another in every manner besides self-defense or defense from tyranny. Why some self-professed liberals are able to stomach the risks of some civil liberties but not others is an inconsistency I can’t abide. Our only real option is a constitutional amendment changing the text of Number 2. And we all know that ain’t happening so let’s forget gun control. The people have spoken.*

Ahh, but those devoted acolytes of Limbaugh and Beck, they have their own inconsistencies. This decision was activist! It was an assertion of Federal Control and Superiority! It attacked States Rights! Where are the conservative complaints? One must not, if he is to be intellectually honest, only complain of an abrogation of states rights when the courts rule against their personal views. The decision reached yesterday was a classic case of activism. There has been no longstanding precedent on state action on gun control. The ruling was based mainly on a selective reading of history, a reading thoroughly and effectively challenged in the dissent.

As for those “originalists” among the conservative crowd, the ones who are often heard in times like now when a Supreme Court nominee is being vetted by the Senate, why these originalists and strict constructionists must decry this ruling most loudly. For they believe, unlike Elena Kagan and Thurgood Marshall, that the original Constitution was not a “flawed document.” Do they realize that the original Constitution applied only to the Federal Government and not to the States? That the States, under the original document, could in fact restrict freedom of speech, freedom of religion, and the right to bear arms, for example, in any way they chose? This was a major flaw in the original document. The flaw was corrected not merely by the fourteenth amendment, but by an expansive, some say activist reading of the amendment, that forced the states to afford the same rights for its citizens which the federal government was precluded from restricting. The expansive, activist approach is responsible for the end of Jim Crow and many other forms of discrimination. It wasn’t “strict adherence” to the original flawed document, but it was right and it was just.

The court’s activism yesterday was likewise right, based on overwhelming public opinion in the U.S. and on a broad, expansive, activist view of the Bill of Rights and the 14th amendment.


*I think it would be interesting if some politician came along who said, “I’m a strict constructionist and a patriot. I believe in the Second Amendment, as it is written. The government cannot restrict anyone from owning a gun, ever. However, if you own one you must sign up for the state militia and be subject to being called out for duty at any time.”

About travellinbaen

I'm a 40 year old lawyer living in Ridgeland, Mississippi. I'm several years and a couple hundred miles removed from most of my old running buddies so I started the blog to provide an outlet for many of the observations and ideas that used to be the subjects of our late night/happy hour/halftime conversations and arguments.
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29 Responses to Guns, Pigeonholes and Intellectual Honesty

  1. irvine redd says:

    I was wondering if this would come up in this part of the interwebs. That 2nd amendment is a tricky wicket. My cousin, an avid fan and proponent of guns, and I have had the conversation about gun control many times. My main argument was always that it is far too easy for any individual to purchase a gun. And I was lucky enough to be able to use him as my example. I’ve personally watched him buy a gun like I was watching someone buy a Kit-Kat. The guy had an arsenal in his apartment, for no reason what-so-ever other than his own paranoia.

    The Court struck down a similar law in D.C., which was created for similar reasons to the Chicago law, for the same reasons as they did here. These two cities have major problems with handgun related violence. In Chicago last year, 258 public school students were shot with 32 of them dying. How are we to stop such things from occurring if we can’t stop people from buying the weapons? For clarification, that’s not a question meant to be argumentative, but actually a serious question that we as a country have to answer.

    Also look at what took place at Virginia Tech a couple of years ago. A stone crazy person bought a weapon, completely legally, and then went on a killing spree. My girlfriend, who recently got her second degree from Tech, was a student there at the time and was on campus when it happened. Her younger sister was in one of the buildings where the killings took place. And they both lost friends to this maniac. This person shouldn’t have been able to gain access to a gun. A psychological exam would have proven that easily. I’ve got many relatives and friends that own guns, and I’ve got no problem with it because I know they’re not about to go on a killing spree.

    Gun rights is a tough issue. And one we’ll never solve.

  2. Mac says:

    Gun restriction is not tough. Gun laws solve nothing. Criminals will get their guns. Now, is there an arguement to be made over guns killing more family members than criminals? Absolutely. But that should be a personal decision and not one legislated by the government.

  3. smilyj says:

    I am for gun rights. I own several myself. But I also dont agree with some of the NRA stances. I dont believe there are reasons to own certain types of guns. I also dont mind waiting for 3 days while my background is checked when buying a gun. I dont believe everyone deserves to own a gun. I wouldnt mind stricter rules as long as there was not a ban on guns altogether. I think maybe a certain category for gun collectors could work for those who wish to own elaborate weapons. And those people should be subject to very strict and detailed checks in order to own those guns. Its kind of like the Arizona law that the right supports. If you arent doing anything illegal or have anything to hide, you shouldnt mind being checked out in order to have such a privilege.

    Also, gun laws wouldnt prevent violence like that at Virginia Tech when its is as easy as clicking on the internet and getting directions on how to build an explosive. Or criminals would just use knives. I guess we could ban those too. Maybe we could also ban sticks.

  4. irvine redd says:

    Well I don’t know about you, but I’d rather have to deal with a knife toting maniac who has to actually get close to me to have any possibility of success, than one with a gun.

    On a note related to guns, in England I found it interesting that the patrol cops didn’t seem to be carrying guns. Whenever I was in the city center, I never saw a cop with a gun. But I did see them kick the holy hell out of a couple drunks who were fighting each other. They just came running down the street and clotheslined them, and then proceeded to “subdue” the two gentleman. It was awesome.

  5. smilyj says:

    Killed with a knife? Or killed with a gun? Hmmmm. I think the key word here is “killed.”

  6. Jessie Lou says:

    Killing with a knife is much more personal to me because you have to get up close to the person. Unless you can point and jab pretty accurately, chances are you will have to actually touch the person, hold on to them and do them in.

    But Smilyj is right – killed is killed – either way if you are on the wrong end you are gone.

  7. tkh says:

    Just curious how they quantified crime prevention as a result of owning a handgun? Was it just crimes stopped by the victim having a hand gun or did they have some formula that took into account that certain people or areas are more prone to have guns in the home and thus have prevented a crime by having criminals go else where.

  8. I can’t believe nobody wanted to talk about states rights.

  9. Mac says:

    What is this “States Rights” you speak of?

  10. Smilyj says:

    I just heard a stat on TV. Granted it was on TV so I’ll only assume it is an accurate statistic. ! out of every 12 crimes involving guns is done so with a licensed weapon. So I dont think gun laws are necessarily helping if the guns that are being used are being obtained illegally anyhow. It doesnt matter how easily someone can buy a gun legally.

  11. Smilyj says:

    That was supposed to 1 out of 12.

  12. Alexis de Toadville says:

    A couple of points. (1) The fact that one can kill a person with a knife does not equate the instrument with a gun. You can kill some one with a nerf ball if you apply it effectively to the right place on a body, but it would be a very difficult task just as killing with a knife is generally more difficult than killing with a gun, which accounts for the fact that you don’t hear about many drive-by knifings. Rational people and presumably rational laws can treat different instruments of death differently. Hopefully, grenade launchers and dynamite would be severely regulated while baseball bats and knives would not. Regarding the 2nd Amendment, two hundred years of jurisprudence held that the amendment protected the States’ right to have a militia and did not prohibit the States from reasonably regulating individual firearm ownership. The people “have spoken?” If they wanted to speak to the issue, they could always do so through their elected representatives at the state and local level. But the recent Supreme Court decision changed that, albeit with some kind of loophole alluded to in Justice Alito’s opinion. (2) A bone-picking point, if I may. It was the Bill of Rights (Amendments 1 thru 10) that originally applied ONLY to the National Government, not the Constitution as a whole. There are many restrictions that apply to the States in the original Constitution. States were barred from coining money, entering into treaties, alliances, and confederations, passing ex post facto laws, taxing imports, declaring war, and making laws which impair the obligations of contracts, to name a few, in Article 1, Section 10. Morevoer, the Full Faith and Credit Clause, Privileges and Immunities Clause, Extradition Clause, and Fugitive Slave Clause, all found in Article IV, imposed various restrictions on the States . Then there is the Supremacy Clause (Article VI) which, according to John Marshall, deprived the States of the power to “retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress.” (Sorry, I’ve tried to expunge the teacher in me, but so far to no avail.)

  13. Jessie Lou says:

    Professor ADT – oh, how I wish you had been my teacher! I’m now thinking up ways to kill with a nerf ball – choking comes to mind.

  14. smilyj says:

    I dont believe you can kill with a nerf ball.

  15. smilyj says:

    I would also correctly assume that almost all drive-bys are committed with guns that are obtained illegally. So it wouldnt matter how regulated they are. Sort of like drugs, They are banned, regulated, and so forth. But I dont think that really makes it any less difficult for people who want them to get them.

  16. Alexis de Toadville says:

    Oh ye of little faith. Read here of recall of lethal Nerf football. It was on Fox News, so you know it has to be true:,2933,109989,00.html

  17. Alexis de Toadville says:

    Love the Michael Vick signature.

  18. Alexis de Toadville says:

    Smilyj, I’m not trying to make your argument for you, but did you intend to write “But I don’t think that really makes it any less difficult for people who want them to get them?” Wasn’t your point that regulation doesn’t make it any MORE difficult to get them (drugs, guns, or whatever)? By the way, there are lots of people in jail who probably would disagree with you.

  19. Mac says:

    I’m with Smiley. Gun laws only apply to the law abiding. What do you think gun abolition will accomplish?

  20. irvine redd says:

    Well I’ll say this, since the comparison to drugs was brought up. The laws in place can help stop you from getting drugs. In the words of Chris Farley in Billy Madison, “I know, from experience dude.”

    If there weren’t laws in place, I could walk down to the Eastern Convenience Store and get a bag of weed. But I can’t. So I don’t have any.

  21. “Gun laws have failed.”

    A classic overgeneralization. However, I GENERALLY agree.

    de Toad brings up, among his excellent points, one of my favorites, relating to the above overgeneralization–is there a point “guns” can be banned? And where is the line? Semi-automatics? Assault rifles? Mortars? SAM’s? Tanks? Fighter planes? ICBM’s?

    If you believe the line is at any of these places, we’re no longer “discussing what you are, we’re just haggling over the price” to quote my all time favorite punchline.

  22. Alexis de Toadville says:

    I’m sorry, but where did I advocate gun abolition? Make an argument if you please, disagree with my post if you like, but don’t put words in my mouth. Now I see why TB has to make his “don’t pigeonhole me” statement. If I think that States have the constitutional authority to license and regulate automobiles, I am not proposing that cars be abolished. And as for the statement that “gun laws only apply to the law-abiding,” one could say that about any laws. Tax fraud laws apply only to those who don’t cheat on their taxes? As to the assumption that drive-by shootings are committed with guns “obtained illegally. So it wouldn’t matter how regulated they are.” So what should we do therefore? Deregulate them? Make those weapons legal? Make it easier for the drive-by shooters to obtain their street sweepers? Is it not a good thing that gangbangers committing drive-by shootings might possibly be prosecuted on gun charges when there is insufficient evidence to convict them of a specific shooting? Do we have to wait for a Clint Eastwood character to sacrifice his life a la “Gran Torino” to get at these thugs? Al Capone went to prison for tax evasion, not murder. The Klan Kluckers who killed Goodman, Schwerner, and Chaney went to prison for violating the victims’ civil rights, not murder. No, I am not in favor of the abolition of guns, but my question for you is: are you in favor of the abolition of gun laws or laws regulating possession of “arms?” Laws which prohibit gun possession by mentally incompetent persons, convicted felons, and minors? Laws which ban firearms from school campuses and athletic fields? Laws which keep machine guns and RPGs off the open market? Laws regulating possession of explosives?
    When RPGs are outlawed, only outlaws will have RPGs.

  23. Mac says:

    I would not care if they did away with all gun restrictions except one. The background check is a good thing. Other than that, you should be able to buy any weapon you choose. Including RPG’s, tanks and the whole lot. I would probably draw the line at nuclear weapons. 🙂 My reasoning is this. If I want to kill you, I am going to find a way to kill you. Hell, a little time on Ebay and a quick trip down to the feed store and diesel fuel pump and I can wipe out your entire neighborhood. This is an extreme view, I am aware. But I do find it hypocritical to say “yea, you can have a handgun but not a shotgun”. Guns today are prefired with the spent shells given to the gun buyer. The gun is entered into the system and if it is ever used in a crime, it can be traced back to the owner. Assuming all owners of the gun were law abiding citizens. 🙂 Surely they can keep track of an RPG or a Sherman Tank. Anywho, I realize I am rambling so let me just end by saying this. Gun laws inconvenience one group of people. Lawful people. So what is the point?

  24. Mac says:

    And I do apologise for pigeonholing you.

  25. Mac says:

    Sorry, was just re-reading your questions and I didn’t really address the last ones. I am not really in favor of the federal govt regulating much of anything. If an individual state wished to make some restrictions on where you could and could not carry a weapon, I would probably be ok with it.

  26. Alexis de Toadville says:

    Mac, I appreciate your honesty and your apology. A few points, though:
    -Methinks you may have misunderstood my major point, which goes back to TB’s discussion of the recent Supreme Court decision, that point being that the States (not the Feds) have, or before this decision had, the power to regulate firearm ownership, possession, usage, etc. -Btw, would you do away with hunting regs? Abolish deer season? Repeal laws banning hunting over a baited field? Would it be open season on game animals as well as human beings? –The restrictions I mentioned in my last post were mostly State restrictions.
    -I am not for banning shotguns, btw, except maybe the sawed-off variety.
    -Yes, I agree, your view is extreme. I just hope your view is not as widespread as I fear it is.
    -I don’t understand the logic behind “if I want to kill you, I will find a way,” therefore do away with virtually all legal restrictions on firearms, weapons, and explosives ownership/possession.
    -Criminals with easier access to even more dangerous weapons (everything but nuclear weapons “probably”) is not a happy prospect. I guess everyone would have to strap on automatic weapons to venture out into what would quickly become Beirut in the 80s, or worse, a latter-day Hobbesian state of nature where life for man would indeed become “solitary, nasty, brutish, and short.”

  27. Jessie Lou says:

    I see why IR loved it when ya’ll would debate in your class.

  28. Smilyj says:

    As I had mentioned, I do not think all firearms should be available to people. And I also stated that I do not mind if it is a little more difficult to acquire a gun. I know noone on here is advocating banning firearms but there is a large segment of society that wants just that.

    On a lighter note, I have often wondered how great it would be if everyone carried tasers like they carried six shooters in the old west. (Or Hollywood’s Old West). You would have your tasers strapped to your legs like a gun fighter. When ever you had disagreements or conflicts, the duelists would simply walk off the required paces and have at it. What a great way to solve arguments. Too slow? You get tasered. You lose the argument. There were many times when I look back that I could have tasered TB’s ass. Oh I dare to dream.

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