Reasonable Gun Control

 
“I support the Second Amendment, but I think we should have reasonable gun controls.” This is a line frequently heard from politicians and certain special-interest groups. While it’s often disingenuous—since what the most vociferous gun-control proponents really desire is total prohibition, presumably in the noble but misguided hope of creating a non-violent society—I will nevertheless take the statement on its face for the sake of discussing reasonable gun-control measures.¹

As the U.S. Supreme Court has repeatedly held, all civil rights, no matter how fundamental, are subject to some degree of regulation in a society structured on ordered liberty. The Second Amendment right to keep and bear arms is no different. Furthermore, in D.C. v. Heller, while affirming the individual right to arms for self-defense and other lawful purposes, the high court opined that many longstanding gun-control regulations are presumptively lawful.

This brings us to the fact that most of the reasonable gun controls commonly demanded have already been in place for many years or even decades. However, not all of these regulations have been fully or properly implemented. I will examine each of these reasonable proposals below and offer suggestions for more effective improvement. Some of these gun-control schemes are more reasonable than others and will probably pass constitutional muster in the face of ongoing legal challenges, but some will fail this test and are likely to be stricken.

Background Checks

No one wants guns in the hands of violent criminals or the dangerously insane, so background checks have been federally indicated pursuant to all commercial firearms sales since the Gun Control Act of 1968 and much earlier in many states. Though their actual effectiveness is questionable due to the durable nature of firearms² and the propensity of criminals to acquire their guns via illegal means, the process has become relatively painless with the advent of the National Instant Check System (NICS) in the 1990s, and most transactions can now be cleared or denied within a matter of minutes. Since nearly instant background checks don’t unduly burden the right to arms, they will probably be ruled constitutional if challenged.³

Nevertheless, the system does have its flaws. First, NICS depends on data gathered from a number of sources. When the various agencies responsible for collecting this information fail to input disqualifying criteria, the system may still clear someone who should have been prohibited. Second, due to the high volume of false positives, law-enforcement agencies are unable to investigate denials. While most denials are overturned on appeal, a few are undoubtedly the result of legitimately prohibited persons,⁴ who may then proceed to obtain guns illegally. Both problems can be mitigated with greater attention to accurate and thorough data collection and by improved database integration.

Furthermore, despite the largely successful implementation of NICS, various provisions of the Gun Control Act keep gun sales mired in mid-20th century practices, particularly when interstate transactions are involved. By law, a Federal Firearms License (FFL) is required to deal in firearms, but licensees are restricted to face-to-face transactions with residents of their own states, except when dealing with other licensees. This can actually compromise the security of an interstate transfer, as the firearm must pass through many more hands on its way to the legal buyer, increasing the likelihood that it may be lost or stolen along the way.

There are two possible and relatively easy solutions to this problem, though both would require that the law be amended. First, leveraging the NICS service, outdated residency requirements could be eliminated, allowing any cleared customer to take delivery of a firearm without being forced to first have it shipped to a licensed dealer in the customer’s home state. Second, an existing category of FFL could simply be expanded to include a wider variety of firearms, affording the licensed collector more convenience while exposing him and the community at large to less risk.

These reforms would also have the added benefit of further discouraging undocumented and potentially unlawful private sales, which I will discuss in more detail below.

Registration

We’ve had de facto gun registration at the federal level (as a result of the record-keeping requirements for FFL holders) and de jure registration in several states for many, many years. Though registration is of dubious utility to law enforcement, it has also done little harm to law-abiding gun owners, despite dire predictions from some quarters within the right-to-arms camp. Implementing a standardized federal registration system would work very well in conjunction with the modernized interstate-transfer procedures described above.

That said, there is some evidence from the courts that registration may be deemed unconstitutional. It certainly contradicts the Fourth Amendment right to privacy. Arguably, however, the militia clause of the Second Amendment suggests that the government may have a constitutional interest in understanding the disposition of arms suitable for militia service—and I will discuss which firearms should be considered militia weapons in detail below.

Licensing

Beyond the FFL system described above, there has long been a call to license gun owners. We license drivers after all … or so the argument usually goes. In fact, though, licensing regimes are now present in all states but Illinois—a problem being addressed in the courts right now. Unfortunately, several of the most populous states (including California and New York) still continue to discourage their citizens from becoming licensed, despite having had licensing systems in place for many decades.

Indeed, licensing reform is currently the top priority within the right-to-arms movement, where it is viewed as the gun-control measure offering the single most immediate benefit to public safety. To that end, multiple legal challenges to unconstitutional licensing practices are working their way through the federal courts and will likely reach the Supreme Court within the next two years. The high court is widely expected to rule that while states may regulate when and where their citizens may carry guns for self-defense and other lawful purposes, there must also be a legal mechanism for them to do so that is administered equitably and that doesn’t unduly burden the core right.

I have reported on liberalized or shall-issue licensing before. Whenever and wherever such licensing reforms have been adopted legislatively, there have been exaggerated claims by opponents that gun violence would explode as licensees instigated shootouts for all manner of trivial reasons. Of course, no such thing ever happens. Instead, licensees have proven to be exceptionally law-abiding, and the data suggest that right-to-carry laws contribute to an at least slight decrease in violent crime.

This decrease is due mostly to the deterrent effect of an armed populace. Even though only a tiny fraction of the eligible citizens choose to obtain licenses, would-be attackers are still dissuaded and seek out softer targets. Over time, this effect should become more pronounced as a larger percentage of the population becomes licensed and, hopefully, as other criminal-justice reforms are implemented.

However, I won’t argue that armed citizens are a perfect antidote for episodes of mass murder.⁵ Both are statistically rare, so the likelihood that a licensee will be immediately present when one of these very unusual events erupts is exceedingly small. While the chances that an armed citizen will simply be nearby are significantly higher, licensees are not police officers and are trained to avoid confrontation whenever possible. In any case, the event wouldn’t be recognizable any longer, since the headline would read: “Gunman opens fire in crowded shopping center. Dozens injured.”

Safety Training

Safety and competency training will always be valuable where firearms are concerned. In fact, voluntary safety programs formalized in the 1950s and championed by the National Rifle Association are probably responsible for reducing the rate of fatal firearms accidents to statistical insignificance. Nevertheless, states that don’t include any training as part of their licensing requirements still haven’t seen an increase in accidental shootings, which suggests that stringent training demands would provide little additional benefit to public safety.

That said, any potential training requirements that weren’t unduly burdensome would probably be deemed constitutional. Here again, the Second Amendment provides for a well-regulated militia, and in its 18th-century context, well regulated was understood to mean well trained. To this end, basic firearms safety could reasonably be included in school curricula, possibly helping to reduce accidental shootings even further.

Waiting Periods

Waiting periods have come and gone over the years, but they were sold politically to accomplish two goals. First, waiting periods allowed time to conduct the mandatory background checks, though NICS has essentially obviated this need. Second, they provided a cooling-off period for any gun buyer who might be acting on some temporary murderous impulse, though I’m aware of no correlation between waiting periods and reduced homicides.

In short, waiting periods have probably outlived any utility they may have had. Nevertheless, in California and other states where they remain, there is speculation that at least initial waiting periods for first-time gun buyers would survive constitutional challenge. If this proves to be the case, though, the state may be left in the position to delay access to firearms to those who may legitimately and suddenly develop an immediate need for effective self-defense.

Unfortunately, I see no remedy for this problem, if cooling-off periods are allowed to stand. It may simply be a matter of personal responsibility for those living within an imperfect system. It’s probably too late to buy the fire extinguisher once the fire has already started.

Private Sales

This is the so-called gun-show loophole. While gun shows enjoy no special exemptions, under federal law and in many of the several states, private sales are largely unregulated. Private parties are free to dispose of their own property as they see fit, so long as they aren’t knowingly transferring firearms to prohibited persons or dealing without a license.

For those less familiar with gun laws, you may find the dinner-party loophole somewhat easier to understand. This is the gap in health-and-safety laws that allows you to serve food and drink to your own family or to host a dinner party for friends and associates without having to obtain FDA approval or a conditional-use permit from your county of residence. Closing this loophole would require you to obtain the services of a licensed caterer before dining at home.

While there is much talk about requiring all private firearms transfers to be conducted through the agency of licensed dealers, as they currently are for the most part in California, it’s unclear whether such restrictions would be deemed constitutional. In addition to the Second Amendment, controls on private property also implicate the Fourth, Fifth, and Ninth Amendments. On top of this, such regulations are very difficult to enforce, effectively guaranteeing a low rate of compliance.

A better approach would be to encourage voluntary participation in the national background-check system. Providing private sellers with access to NICS would be well received by the vast majority of gun owners, who are generally eager to follow the law and who would appreciate the extra peace of mind while still avoiding the gross inconvenience of conducting private sales through licensed dealers. While this certainly wouldn’t eliminate all undocumented transactions, it would minimize them to a large extent, allowing law-enforcement resources focused on the illegal arms trade to be targeted more efficiently.

“Dangerous and Unusual Weapons”

In Heller, the Supreme Court explicitly ruled that weapons “in common use” by the people are protected by the Second Amendment, implying in its historical analysis that “dangerous and unusual weapons” could be subject to more stringent controls. However, these terms were left somewhat vague. The specific weapon “in common use” in this case was a personally owned handgun, but which weapons are “dangerous and usual”? And how does this decision square with the only previous Second Amendment ruling, U.S. v. Miller?

In Miller, the high court held that weapons suited for militia service were constitutionally protected. While this ruling may be regarded as partly erroneous due to the incomplete briefing process before the court, at present time, the weapon best suited for militia duty would be a select-fire assault rifle chambered for the 5.56×45mm NATO cartridge—or at the very least a semi-automatic analog thereof. However, select-fire weapons, other fully automatic firearms, and various “destructive devices” have been tightly controlled since the National Firearms Act of 1934 and essentially banned from production for the civilian market since 1986.

If the prohibitions on “dangerous and unusual” military weapons are constitutional, then that leaves us with semi-automatic versions of military rifles as the de facto protected militia weapons “in common use” by the people. However, despite their involvement in only a fraction of gun-related homicides, these are the very same “assault weapons” that so many gun-control proponents would like to see banned.

Now, as I’ve written before, so-called assault weapons are fictitious. The term was used to frighten the uneducated public into support for the federal ban that expired in 2004. A semi-automatic rifle is a semi-automatic rifle, regardless of whichever secondary features it may have—and like millions of other Americans, I own one myself. My modern Kel-Tec SU-16 rifle with its traditionally shaped stock is really no different than a 50-year-old Colt AR-15 with a pistol-grip stock. Both are chambered for the same intermediate 5.56mm cartridge.⁶ Both can accept the same five-, 10-, 20-, 30-, 60-, or even 100-round magazines. And both can fire only one shot for each pull of the trigger.

Therefore, per Heller, semi-automatic rifles are “in common use” and thus constitutionally protected for lawful purposes. They are also the only readily available militia weapons protected per Miller. Unless the prohibitions on more appropriate military-grade weapons are to be relaxed, any bans on semi-automatic “assault weapons” are both pointless and very likely unconstitutional.

Gun-Free Zones

Gun-free zones are a dangerous fiction and should be eliminated immediately. Vague, poorly defined zones have been ruled unconstitutional once before and doubtlessly will be again when an appropriate challenge arises. In the meantime, as we’ve learned tragically and repeatedly, the only guns these zones are free from are those held by law-abiding citizens.

Specific zones are more legally tenable, but to effectively implement truly gun-free zones would require secure perimeters, controlled access points with thorough searches of all incoming traffic, and ubiquitous surveillance.⁷ In other words, we would have to turn these “sensitive places” into prison camps. This would be both impractical in economic terms and antithetical to a free and open society.

Let’s reserve the prison-camp mentality for places where we really have no other choice … such as in actual prisons.

The foregoing gun-control proposals represent what reasonably can and cannot be achieved. Properly implemented, they can provide us with a constitutional and functional right to arms while still allowing both practical and symbolic legal tools for reducing violent crime. Most are already in place and need only minor adjustments to be made more effective.

This goal is politically possible for those who honestly wish to enhance public safety while also protecting our civil rights. The vast majority of gun owners already support these reasonable measures, and none of us expect to win a completely unfettered Second Amendment. What we do not appreciate is continually being blamed for the wrongdoing of the minority of willfully evil and dangerously insane people in this world, and we will certainly no longer tolerate being punished for their crimes.

1. The intellectually honest supporter of reasonable gun control will ultimately find himself in the right-to-arms camp. I should know, because I was that person. While my views have evolved toward libertarianism and away from the utilitarianism implicit in the unreserved support for gun control, that doesn’t change the fact that we will be living with some degree of utilitarian regulation until long after the subject has lapsed into irrelevance.


2. A well-maintained firearm will remain functional for hundreds if not thousands of years, and there are at least 800 million already in circulation worldwide. We will never run out of guns. This is one of many reasons why outright prohibition is an unacceptable proposition.


3. Of course, if background checks are acceptable for the exercise of a fundamental civil right, then arguably they should be applied to other less protected areas as well, such as voting rights, driving automobiles, or the receipt of public benefits.


4. I would argue that there should also be a way for prohibited persons to eventually restore their civil rights. Otherwise, the utilitarian argument dictates that anyone too dangerous to be trusted with a firearm is too dangerous not to be incarcerated.


5. It certainly wouldn’t hurt to allow licensees to go armed in otherwise unsecured “sensitive places.” Existing laws vary widely in this respect.


6. Military assault rifles and their semi-automatic civilian analogs are chambered for intermediate cartridges, more potent than low-powered handgun cartridges but less powerful than the high-powered rifle cartridges used for hunting and long-range precision shooting.


7. Even the strictly enforced gun-free zone only relocates the problem. Instead of a bunch of unarmed victims congregated inside the zone, we would have a bunch of unarmed victims queued up outside the zone waiting to be screened for entry. Either way, the would-be mass killer is presented with a target-rich environment.

Tragically Insignificant

 

In recent days, we’ve seen a tragic rash of murder and mayhem around the globe. Naturally, people react to these shocking events with high emotion, and the usual responses follow. In the United States, we talk about more gun control. In China, they talk about more knife control. But pointless attempts to restrict whatever tools were used to execute the evil intentions are not what I want to examine here.

Some people may blame weapons or poor healthcare or moral decay or video games or certain kinds of music for the apparently increasing frequency of such tragedies, but really none of these things are to blame. Such events—undeniably terrible as they are—are rare outliers. The likelihood that a given individual will fall victim to an occurrence like these is vanishingly small.

However, we live in a world of over seven billion people connected by a global telecommunications network. Not only are the tiny, tiny minorities of willfully evil and/or dangerously insane human beings thus noticeably larger than in past historical eras, but now we learn of their horrific deeds almost instantly. The root problem in this instance is nothing more than mathematically inescapable demographics.

As terrifying and heart-rending as these tragedies are, they are still statistically insignificant events. To base public policy on vain attempts to prevent all such incidents would be to make evil the lowest common denominator of human interaction and would be, as it always has been, a very destructive way to spend our collective grief.

Victory at the Seventh Circuit

Today brought a somewhat unexpected victory on appeal for two right-to-carry cases out of Illinois. The panel at the U.S. Court of Appeals for the Seventh Circuit has ruled that the state’s sweeping prohibition is unconstitutional and has remanded the cases with orders for corrective legislation.

The theoretical and empirical evidence … is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified.… It has failed to meet this burden. The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand … them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment.…

If nothing else, this decision will likely be seen as creating a so-called circuit split, which would generally compel the U.S. Supreme Court to take up a case in order to resolve the inconsistency … while possibly also foreclosing the only-in-the-home defenses used thus far.

Richards v. Prieto at the Ninth Circuit

On Thursday, Alan Gura argued the case of Richards v. Prieto before the U.S. Court of Appeals for the Ninth Circuit. As I have reported previously, this case challenges the constitutionality of discretionary licensing policies in California, specifically the requirement for an applicant to meet subjective standards of “good moral character” and “good cause” in order to be eligible for a license to carry a firearm on his or her person.

Oral Arguments

The Parable of the Old Refrigerator

Let’s say you have a spare refrigerator in your garage. It keeps a few extra beers cold for you, just in case you might need them on short notice. If that old refrigerator starts to cost you so much that you have to borrow money to pay your electricity bill each month, what would you do about it? Would you demand a salary increase from your employer to cover the difference? Or would you simply dispose of the costly relic, maybe even selling it for a little extra cash?

Perhaps you would just keep that old refrigerator and borrow more and more money to keep it running—because, you know, you might need those cold beers someday.

Kachalsky Loses at the Second Circuit

Predictably, the U.S. Court of Appeals for the Second Circuit has upheld the ruling of the lower court in the matter of Kachalsky v. Cacace. As usual, the court misapplied the McDonald decision, interpreting the Supreme Court’s ruling that the right to bear arms described by the Second Amendment is “most notably for self-defense within the home” to mean that the right exists only within the home. A certiorari petition is expected.

Meanwhile, appeals continue to move forward in other circuits. Oral arguments are scheduled on Dec. 6th for several other right-to-carry cases, including California’s Richards v. Prieto.

Democratic Rule in California

While the mainstream media were tripping over themselves to call President Barack Obama’s re-election, a perhaps even more important event went largely unnoticed. On Nov. 6th, the Democratic Party won commanding majorities in both the California Assembly and Senate, effectively completing a takeover of the state’s government. This electoral victory has been a few decades in the making but wasn’t quite unexpected.

Until the late 1980s, California often leaned to the Republican Party. However, the demographic changes that accompanied the state’s rapidly growing population began to deliver more and more state and federal offices to Democratic contenders. Instead of rallying and trying to build new relevance for themselves, the Republicans struck a nefarious political bargain with their rivals. Using self-serving legislative redistricting procedures, both parties carved out safe, unassailable electoral enclaves for themselves. In this manner, the Republicans preserved some political power in the California Legislature and the U.S. House of Representatives, even while they steadily lost representation in statewide offices.

After a series of fierce statewide initiative battles, the voters approved a new commission that would take control of the redistricting process away from the Legislature. These reforms were expected to produce competitive elections, and they certainly have. I suspected that the Republicans would lose seats, but I am slightly surprised that their defeat was this thorough this quickly.

The Democrats will now have a supermajority in the Legislature. Previously, the Republican minority had been able to hold off many proposed tax increases, since the state constitution requires a two-thirds majority to pass such legislation. All the while, though, the Democrats have argued that higher taxes are desperately needed to solve California’s fiscal problems, and the people have seemed to agree, approving taxation initiatives (at least when ostensibly aimed at the rich) on a fairly regular basis.

The people of California have spoken, so who am I to stand in their way any longer? Maybe we really can tax and spend ourselves into prosperity, so let’s get to the business of soaking the rich—whoever they may be. If they don’t like it, they can just move to some benighted flyover state.

Like it or not, the Democratic Party owns California now … and all its problems.

Taxation and Revenue

Though it has become politically irrelevant and I am now committed to soaking the rich until California blooms or burns or at least until I have my share of the spoils,* I have been asked why I previously “voted against my job” and opposed tax increases, so I will answer that question as a final nod toward fiscal wisdom and responsibility.

In the simplest terms, tax rates are not directly proportional to tax revenues. Beyond a certain point, higher tax rates will actually result in reduced revenues as the economy declines in response to the rising costs and as overburdened taxpayers find ways to avoid or evade taxes. Of course, the reverse is also true. To an extent, lower tax rates can allow for economic growth that increases tax revenues in the long term.

Stated another way, if the private sector prospers, then the public sector will prosper in turn. If the public sector demands too much from the private sector, and the private sector suffers as a result, then the public sector will also suffer in the end.

I don’t know where we are on the curve, but I’m fairly certain it is somewhere beyond the point of revenue maximization. That was my pragmatic reason for opposing higher taxes.

*Apparently, it’s greed only if you make more than $250,000 per year.

Republicans and Abortion

As I was enjoying a hamburger and a beer, I overheard a conversation about politics from the next table. “I tend to agree with the Republicans on economics and taxes,” one young man said, “but I would never vote for a Republican because of the abortion issue.”

While I don’t advocate single-issue voting, it’s very clear that many voters do make their decisions based on a candidate’s position on just a handful of key issues. In this example, the Republican Party sacrifices untold millions of votes in its dogged opposition to a certain private medical procedure. The Democratic Party makes a similar sacrifice in its quixotic pursuit to suppress the right to arms.

I wonder what the electoral results would be if the major parties didn’t squander potential votes on pointless wedge issues.

Who Built That

It annoys me to no end when “conservatives” take Barack Obama (or Elizabeth Warren) out of context. When the President said “you didn’t build that,” he was clearly, if clumsily, talking about infrastructure (roads, bridges, etc.). Indeed, most business owners didn’t directly finance the baseline infrastructure that services their businesses.

It annoys me just as much when “liberals” fail to recognize such remarks as the claptrap and political flimflam that they are. While even ardent libertarians acknowledge that government can and perhaps should have an important role in developing and coordinating infrastructure projects, the fact is that very little of our tax revenues go toward public infrastructure.

Even when stretching the imagination, no more than three to six percent of the federal budget was allocated to infrastructure in FY 2012. The numbers are a little more favorable when we combine state and federal spending, but infrastructure still accounts for only a small sliver of the pie. Most of the pie goes to welfare and “defense.”

When the people complain about taxes, they aren’t talking about infrastructure … and when the President talks about raising them, neither is he.

The Patient Protection and Affordable [sic] Care Act

Now that ObamaCare has won the day at the Supreme Court, we can talk about outcomes. Yes, you must gamble with your health. Don’t want to place a bet? Then pay the tax man. Oh, yeah, President Obama said that he wanted to raise taxes only on rich people. You know, just the ones who make over $250,000 per year? Well, guess again.

What I wanted was less expensive health insurance. What we got instead was “universal” coverage, delivered in such a ham-fisted manner that costs will almost certainly rise for the average consumer. As if the $15,000+ I gamble away each year weren’t enough, how can my rates not go up when I’ll have to help cover the bets for those with long odds and for those who don’t even want to play the game?

How do we solve a problem caused by taxation and government interference? With even more taxes and interference, of course! Brilliant.

Ending a Heated Debate

I must confess that the debate over anthropogenic global warming (climatic change for those of you who’ve shivered through recent summers) has been entertaining. The only thing more amusing than human arrogance is even more human arrogance. Be that as it may, I think the time has come to end the debate.

For the record, human activity obviously affects the global climate. Of course, everything affects the global climate, so that information is not terribly instructive. Where do human influences rank among the various factors? Only the arrogant can provide a definitive answer. However, we should still acknowledge that solar output and orbital dynamics generally have the greatest impact on climatic cycles—an important fact that I will return to shortly.

Since it’s the popular thing to do, I’ll go ahead and assume that anthropogenic climatic change is a bad thing and that we should probably do something about it. Now, though, I will buck the trend and dismiss the mainstream solutions as atmospheric alchemy. Arbitrarily reducing carbon-dioxide emissions over the short term will have a very small effect on global temperatures and will be prohibitively expensive.

Rather than spending hundreds of billions or even trillions of dollars for minimal benefit, why not spend only tens of billions on mitigation efforts and on general economic development? As Bjørn Lomborg has cogently argued, focusing on these goals would have a much greater positive effect at only a fraction of the cost. (Dr. Lomborg is also rightly critical of proposed cap-and-trade schemes, which are ripe for corruption.) Yeah, that’s just wishful thinking.

So let’s spend a bunch of money on prevention, but let’s use science instead of alchemy. That brings me back to the sun, since controlling insolation would be the most cost-effective method of regulating global temperatures. Several “geoengineering” schemes have been proposed to accomplish this goal, but one stands above the rest.

A constellation of solar reflectors in orbit could shade the Earth and reduce global temperatures in a dynamic and very controllable manner. Such a system could probably be developed and deployed for the price of a low-budget manned Mars landing (around $50 billion). Ongoing maintenance of the infrastructure should cost significantly less than that. This would keep us within Dr. Lomborg’s suggestion of cost-effective solutions without the more politically difficult challenge of defeating the institutionalized corruption that stands in the way of his more noble goals.

An orbital sunshade may sound like science fiction, but it makes a lot more sense than mucking about blindly with complex atmospheric chemistry. Insolation could be decreased or increased as needed, allowing for long-term climatic regulation (and other potential benefits). Combined with ongoing pollution controls, a soletta program would provide an elegant and permanent solution to the problem of global warming.

So the debate is over. If you want to control the climate, control the amount of sunlight that reaches the planet’s surface. Doing so would cost a fraction of other less effective solutions.

Self-Defense, the Right to Arms, and the Concealed-Carry Revolution

The video I’ve shared is from a recent Cato Institute policy forum on self-defense and “stand your ground” laws. Though fairly long, it provides solid historical, political, and legal analysis, so I encourage everyone to watch. As you might suspect, I disagree in part with the last commentator,¹ but I still think he made valid points about the application of the law and the possible need for further guidance. After all, if “stand your ground” laws were a reaction to the misapplication of other statutes by prosecutors, are they not at risk for misapplication themselves? Absent political motives, the mere fact that relative experts disagree on the meaning of these laws suggests there is yet a degree of ambiguity, but that is a matter for legislators and judges to resolve.

As noted in the video, the adoption of such affirmative self-defense statutes has followed the proliferation of right-to-carry laws throughout the country. However, many if not most people are still largely unaware of this quiet revolution, both because the laws encourage or even require the concealed carry of firearms and because the mainstream media usually does their best to ignore the laws once they’ve been passed.² Naturally, there is a long and troubling history behind the right-to-carry movement, and I can touch on that only briefly here.

In A.D. 1986, only a handful of states would readily issue licenses to common citizens. In the rest of the country, the carrying of firearms was either broadly prohibited or the licensing authorities had almost unlimited discretion in issuance. This was the legacy of the two-pronged gun-control efforts³ of the 1920s and ’30s, which were ostensibly intended to combat the dramatic increase in violent crime that accompanied alcohol prohibition.

That began to change when Florida became the first state in recent decades to adopt a shall-issue statute, which required the licensing authority to issue licenses to all applicants who were not legally disqualified. Florida’s concealed-carry law became a model for reform, and by the mid-1990s, over half of the United States had enacted similar shall-issue statutes. The causes have not been widely explored, but I think that they will prove clear enough once this chapter of history is written.⁴

Opposition to the shall-issue movement has been and continues to be fierce, and in each case it has usually taken several years for liberalized concealed-carry legislation to make it through state legislatures and past gubernatorial vetoes. Without fail, opponents have warned of dire consequences should the reforms pass into law. Blood would run in the streets, they assured, as minor disputes and disagreements escalated into shootouts. Invariably, though, such grim outcomes have failed to materialize, and violent crime has continued to decline⁵ as right-to-carry laws have continued to expand.

Today, all but a handful of states enjoy shall-issue licensing or better. California, New York, and several other “liberal” states still maintain discretionary, may-issue regimes, while Illinois is the only state with no licensing system. Legislative reform is unlikely in these gun-control strongholds, so multiple constitutional challenges are now making their way through the federal courts.

The U.S. Supreme Court is widely expected to hear one or more of these cases within the next two years.

1. I am far, far more worried about misconduct by the police and prosecutors than I am about the potential that a criminal might “get away with it” here or there.


2. After vigorously campaigning against a right-to-carry reform, the news media seem to conveniently forget about the topic, except for occasional “investigative” pieces designed to expose or embarrass licensees. Here is a recent exception to that rule. “New Fashion Wrinkle: Stylishly Hiding the Gun.” The New York Times (2012).


3. These efforts resulted in the National Firearms Act of 1934, which sought to regulate firearms at the federal level via taxation (since the federal government was presumably bound from direct infringement on the right to keep and bear arms by the Second Amendment), and the “uniform acts,” which sought to control guns at the state level (since state governments were presumably not bound by the Second Amendment). In practice, though, the various prohibitions on concealed firearms found within the uniform acts were mostly used to disarm “undesirable” people (i.e., minorities and immigrants), and that was probably a large part of the true intent behind them. Otherwise law-abiding white citizens were generally unaffected for several decades, and the wealthy and influential could always count on getting licenses or at least special consideration in the event of any embarrassing incidents.


4. I contend that the right-to-carry revolution developed as a response both to the equalized enforcement practices reached in the 1970s and ’80s and to the political successes of the national gun-control movement from 1968 to 1994. Note that the number of shall-issue states had almost doubled within two years of the enactment of the federal ban on “assault weapons.”


5. The FBI’s Uniform Crime Reports show that homicides (gun related and otherwise) have continued to decline from 2006 to 2010. Firearms-related homicides specifically dropped from 10,225 to 8,775. More guns on the street simply do not correlate to—let alone cause—more violence.

Ever the Rush to Judgment

In all very numerous assemblies … passion never fails to wrest the sceptre from reason.

–James Madison

It has been a bitter few weeks in the struggle for human freedom, not so much because of actual setbacks or defeats—though we’ve had those too. Instead, we’ve seen the usual political opportunism that attends controversial events but this time in the ugly company of both popular disregard for the constitutional separation of powers and the emotionally expedient disrespect for fundamental American legal principles, such as due process of law and the presumption of innocence. For me, this is always a painful reminder of how little the people understand or value liberty.

My disappointment is the greater, because it is my own friends and colleagues whom I cannot sway in the face of salacious hearsay spread by the mainstream media. These are otherwise intelligent individuals who profess desire for “social justice” but have let their own emotions and prejudices blind them. Now, in fits of vengeful rage, they would forsake the social and legal barriers that preserve and defend actual justice in a rush to condemn people and events about which they are not properly informed.

It’s moments like this when my own resolve weakens. If reason will always face defeat at the hands of passion, why continue the pretense of debate? Why not abandon the polite, legalistic contest for ordered liberty and hoist the black flag of bloody revolution? Or somewhat more mildly, should I simply surrender to the unhappy idea that to live free means to live as an outlaw—or at least to live as an outsider within a society ruled by the mob’s caprice?

No. I am not ready to retire from the battle of ideas just yet. Important victories for civil rights are in the offing, even if they seem perpetually two years away at the moment.

Ideological Consistency

I have a series of philosophical posts that I’ve been typically lax in completing. While continuing to delay that work, I will explain another concept that informs my thinking. That is ideological consistency, a notion I have mentioned many times in passing elsewhere.

Ideological consistency should be a simple concept to understand. Very plainly, it means keeping one’s philosophical ideas consistent with each other, even when that requires accepting related aspects that one may dislike. For example, opposing censorship while personally disliking “offensive” content would be ideologically consistent.

Nevertheless, many people clearly struggle with this concept and cling to contradictory philosophical positions. Such people are ideologically inconsistent. This is one of the major problems within American politics—a problem exacerbated by the fact that all political discourse must be jammed through the constraints of our artificial two-party system.

Both Republicans and Democrats suffer from ideological inconsistency. Republicans who want a strong national defense but smaller government and lower taxes are not ideologically consistent. Democrats who support the right to privacy but want universal gun registration are not ideologically consistent. These are but two examples of many.

Ideological inconsistency creates internal instability that often makes a given political goal much more difficult, if not impossible to achieve.

“I can have my own life now.”

Last night, my seven-year-old daughter quietly wrote a letter attempting to declare her independence from her mother.

I am immensely proud of her for putting her thoughts into written words and for being partly correct in her judgment, but I also feel profoundly old.

An Early Victory in Maryland

While judicial shenanigans continue to delay California’s early right-to-arms challenges and defeats in other cases are being appealed in New York, Colorado, New Jersey, Massachusetts, and Illinois, an early and unexpected victory was announced today for the case of Woollard v. Sheridan at the U.S. District Court for Maryland. Like many of the other cases, Woollard challenged the constitutionality of discretionary permitting schemes. In this instance, however, the court ruled that Maryland’s law “impermissibly infringes the right to keep and bear arms.…”

Maryland’s attorney general has announced his intention to appeal.