This article rocks.

“First, I’m suggesting that the political climate makes it such that we don’t debate the merits of the issue. The result is that the fault line separates those who want regulation and those who don’t. Or are you suggesting that case is so plainly resolved that no such discussion is necessary?”

I think that both sides of the debate recognize that there must be some legitimate controls on who can obtain weapons. No one on the gun rights side thinks convicted felons or the mentally ill should be able to obtain firearms.

When I make comments like “the gun looks scary”, I’m generally not making a policy argument. I’m basically saying that those on the gun control side generally have a deficient knowledge of firearms, and it is their lack of knowledge that makes them want to ban them. For example, in the reauthorization of the Clinton Assault Weapons Ban, Congresswoman Carolyn McCarthy was the primary sponsor. One of the provisions in there restricts weapons that are equipped with a “barrel shroud”. When asked what that is, she had no idea. If you can’t articulate a good reason for why you want to regulate something, you probably shouldn’t be doing it.

The reason why the barrel shroud language is in there, by the way, is the idea that weapons with barrel shrouds (which are coverings over the barrel that allow you to steady the weapon by holding the shroud with your non-firing hand – standard on your military style rifles) are generally more used for military, rather than sporting purposes, and the gun control crowd doesn’t think I should be allowed to go deer hunting with an AR-15. Why? Because they can’t understand why anybody would want to have an AR-15.

I think that’s a funny position to be arguing. I can’t for the life of me understand why anybody would want to buy a BMW SUV. That doesn’t mean I’m in favor of banning them.

“whether the lack of regulation allows more guns to make their way into criminal hands thus making society generally more dangerous. This is actually one I should have led with. I don’t know the answer. The idea is that why not erect higher barriers to ownership to decrease production and the overeall number of guns (legal and otherwise) “on the streets.””

I don’t think there is a lack of regulation, frankly, and even if there were, I don’t think the availability of weapons increases crime. At the end of the day, a gun is just a tool. No one argues that the availability of hammers is the cause of our current housing crisis. It’s the intent of the individual that matters. No one picks up a hammer and decides he’s going to build himself a house because he has access to a hammer. The same is true of a gun. No one picks up a gun and then suddenly has the urge to kill someone with it.

My 2nd vs. 1st Amendment arguments focus more on the idea that without the ability to defend ones self that is at the heart of the 2nd Amendment, the 1st Amendment is pretty much worthless. Humanity and dignity are worthless if you’re dead.

“We regulate those activities that are viewed as inherently dangerous for children, like alcohol, driving, etc. … These are things that are kept in or around a home yet are much less dangerous than a gun.”

We regulate them, but we don’t ban them. And we don’t regulate how alcohol can be stored in the home. We also don’t regulate how car keys can be stored in the home.

As for “much less dangerous” than a gun, how do you define dangerous? Alcohol and cars are directly responsible for far more deaths a year than guns.

Speaking of “directly responsible”, it’s time for me to get back to Torts.

As we argued about last night, regulation of certain types of firearms is permissible. I don’t always agree with it, but it’s permissible. What is NOT permissible is the outright banning of them. For example, the Clinton Assault Weapons ban didn’t ban the firearms it regulated. It simply said that some weapons that were manufactured after a certain date couldn’t be sold. Those that were manufactured before were exempt, and could be sold. So it wasn’t an outright ban (even though it was bad policy).

Things like preventing convicted felons or the mentally ill from obtaining access to firearms is good public policy, and not violative of the 2nd Amendment. The Constitution mandates that the government may restrict rights after due process of law.

The best way to regulate firearms is what we already do – prohibit certain classes of people from purchasing or obtaining them, and then ensuring that there are comprehensive background checks. That way you don’t infringe on the rights of law abiding citizens to obtain firearms.

I don’t think you can call any of those shootings “worse” than the other. They’re all bad. They all shouldn’t have happened. I don’t place the blame, however, on the fact that the shooters were able to obtain weapons. I place the blame on the unnecessary restrictions on people to defend themselves that make these sort of events possible. These nutjobs that shoot up schools know they can get away with it because no one else there is armed. If one or two of the students at VA Tech or NIU had been armed, this could have been prevented.

It seems clear, at least to me, that there is absolutely no way to completely gun proof anything. Because of that fact, we should quit trying to do that, and instead we should allow those who are responsible to defend themselves. That’s the best way to solve this problem. We don’t need more gun control laws. They don’t work.

What I have trouble understanding is why – once you’ve accepted this – you think is it impermissible to regulate the ownership of handguns or AK-47’s? Your argument, I think, would be that regulation (in general) is impermissible if it crosses the line to prohibition (because that violates the Constitution).

As far as I can tell, you can regulate firearms in one of two ways: limitations on access, and mechanical limitations on the gun itself. Utilizing the policy options available under either of these, every outcome I can envision is fundamentally prohibitive. If you limit access, you are by definition prohibiting someone from either obtaining a gun or limiting their ability to get a type they want. It you restrict the mechanics (assault rifles, magazine capacity, etc.) you’re also engaging in prohibition.

So if all restrictions are prohibitive, and if prohibition violates an individual’s Constitutional rights, what are we left with? Does that mean that you can’t prevent a convicted felon from owning a firearm because it violates his constitutional rights? How about an alcoholic? What about keeping someone who is licensed to carry from bringing into a bar?

As Daniel Lazare put it rather succinctly in a 1999 article in Harper’s on the subject:

“[Once you agree that] the amendment does confer an individual right to bear arms . . . its very presence makes effective gun control in this country all but impossible.” (You can read the entire article here.)

In the same article, he goes on to note that:

“Because we have chained ourselves to a premodern Constitution, we are unable to deal with the modern problem of a runaway gun culture in a modern way. Rather than binding society together, the effort to force society to conform to the dictates of an outmoded plan of government is tearing it apart. Each new crazed gunman is a symptom of our collective—one might say our constitutional—helplessness.”

As if confirmation was needed as to the validity of that statement, I should point out that this article was written in the aftermath of the Columbine Massacre. It could have just as easily been written after Virginia Tech or the most recent tragedy at Northern Illinois University. They’re both perhaps worse, because the weapons used to perpetrate the crimes were purchased legally.

And here we sit, trapped between history and cold reality of the AK-47.

There are several arguments at play here.

First, I’m suggesting that the political climate makes it such that we don’t debate the merits of the issue. The result is that the fault line separates those who want regulation and those who don’t. Or are you suggesting that case is so plainly resolved that no such discussion is necessary?

Second, the substantive issue is the extent to which the state ought to be able to restrict use of firearms without infringing on the right to own one not whether a TEK-9 should be legal? The TEK-9 argument is merely an example (and an admittedly poor one that), but that’s by no means the fundamental issue. Sure, the look of a firearm is not the best of reasons to ban a gun, but surely appearance is a factor in policy making that cuts both ways here, right? You want the appearance of a gun to deter something (i.e. theft or attack) while you don’t want the appearance of a gun to incite more fear than it otherwise would have (i.e. when the law abiding homeowner with a more “tame” looking gun surrenders to man with “mean” looking gun because he assumes it has the capability of inflicting more harm). Perhaps this mitigates in favor of allowing mean looking guns on the balance. But it’s a factor nonetheless that a policymaker ought to weight.

Third, I inferred but never really stated another issue here: whether the lack of regulation allows more guns to make their way into criminal hands thus making society generally more dangerous. This is actually one I should have led with. I don’t know the answer. The idea is that why not erect higher barriers to ownership to decrease production and the overeall number of guns (legal and otherwise) “on the streets.”

Third, here are some thoughts to your individual policy arguments:

“Registration is bad for a variety of reasons which we can get into, but suffice it to say, there’s a pretty solid public policy rationale for wondering who is armed and who isn’t.”

Who is doing the wondering? Are you suggesting that the state should be left wondering whether someone is a gun owner? Or the would-be attacker? The type of home invader you would be shooting in the first place is hardly likely to be looking through lists of registered gun owners. Even if he did, isn’t that a deterrent to home invasion and theft?

1st vs 2nd amendments… While I can see your point on the 2nd vs. 1st amendments, I would say the freedoms embodied in the First are just as fundamental to a democratic system and are among the rights identified in the Founders’ writings as part of the Natural Law. In fact, I would argue that our notion of humanity and dignity relies on the ability of the individual to express himself freely. Framed in that light, I might actually make your argument in reverse, namely, that the 2nd amendment was constructed to ensure the survival of the 1st.

“Trigger locks”… If I grant your argument on trigger locks, the question remains whether the state should restrict how guns are stored in the home. We regulate those activities that are viewed as inherently dangerous for children, like alcohol, driving, etc. These are things that are kept in or around a home yet are much less dangerous than a gun. Perhaps this is a solution in search of a problem (given numbers of gun deaths), but on its face it seems reasonable to argue over.

I’ll leave it there for now. I’m still thinking…

The argument is generally whether TEK-9s SHOULD be banned, not whether they CAN be banned. Frankly, I don’t think they should, because the primary motivation behind banning them is that they look scary. That’s bad public policy.

As for the First Amendment vs. Second Amendment argument, I don’t disagree with you that there is some hypocrisy there. But at the same time, the 2nd Amendment is protecting a fundamental, natural right – the right to self-defense. The First Amendment, while very important, isn’t an issue of life and limb.

Registration is bad for a variety of reasons which we can get into, but suffice it to say, there’s a pretty solid public policy rationale for wondering who is armed and who isn’t.

Trigger locks are a bad idea because a gun that’s not accessible or usable is just a hunk of metal.

We can go into these issues in more detail if you want.