TWP - 4, Rights and Stuff

Greetings, loyal minions. I suppose it is time to put some thoughts down on the blog about guns, gun rights, individual rights, and political discourse…

Like any decent person, I was horrified at the mass shooting in Las Vegas. In fact, I can’t imagine anyone who wasn’t. Now, one week removed, we are into the cycle of argument and recrimination. Sadly, this cycle is just that, a cycle. It has phases that are more or less predictable and will eventually come to an end with all sides remaining angry at one another. There are so many reasons for this and to unpack them all is going to take more time than I am willing to spend writing, but I’ll take a shot at addressing some of the broader topics in the public square.

It should be no secret that I am a gun owner and supporter of the Second Amendment. Further, I am a member of the NRA. If that causes you to stop at this point, fine, but I hope that you might proceed a bit further.

Because I am a gun owner and NRA member doesn’t mean that I am part of a monolithic block of Americans. I find that gun owners opinions on various aspects of gun rights will vary between them. In this we (I?) am no different that other Americans that may not agree when we discuss the nature and possible limitations to our rights in our Republic. In one important point of discussion we are unified, we believe that Americans have a right, enshrined in the Constitution, to keep and bear arms.

And we immediately hit the first sticking point in the broader discussion of guns, such as that discussion is able to be had. The Second Amendment does enshrine the right of Americans to keep and bear arms - that is to own guns. There are many people who will parse the wording of the Second Amendment to say that the right exists only as part of an organized militia. Those people, are now, wrong. This particular piece of debate was ended when the Supreme Court of the United States ruled in District of Columbia v. Heller that the right to keep and bear arms was an individual right. This ruling confirmed what I had always believed. And it is the law of the land now.

There are, as one might expect, those who believe Heller was wrongly decided and that they would like to see it overturned. I don’t believe it will be, at least not under the Supreme Court’s current make up. And if Heller is not overturned soon, it will not be overturned.

I am going to take a dangerous turn here to illustrate and illuminate my thinking on this point. My point is that Heller affirms an individual right to keep and bear arms. It is currently the law of the land. As such, it’s authority is shaping our view of the law across the nation. If it is not overturned or limited soon, the hold of that decision will become more a part of the fabric of our legal system and will become less and less able to be overturned. To illustrate this point I will direct you to Roe v. Wade. Roe was decided in 1973. It has been the law of the land forty-four years. During those 44 years attempts to overturn it have been unsuccessful. Many of the attempts to limit the potential scope of the decision have been made, to various degrees success. To be frank, most of those attempts have been unsuccessful. I will posit to you that it will never be overturned and limitations to abortion rights will be minimal.

I use this example to help to frame the way in which the issue of guns is discussed, or not discussed, in America. As a people, many Americans have strong opinions on abortion. These opinions are quite polarized and the two sides mostly talk past each other when they even try to talk. Those who are pro-abortion can always fall back on the legal fact that abortion is legal, and it is enshrined as a right by a decision of the Supreme Court. A right that was not specifically enumerated in text of the Constitution but has been determined to exist nonetheless. Those who are pro-life hope that they can limit this right through legal and judicial means, or have the Supreme Court change its mind. After years of observing, I don’t think the pro-life side will ever get Roe overturned. I also have my doubts that they will ever be successful at limiting the scope of legal abortion.

Now take the Second Amendment. Here is a right that is specifically enumerated in the Constitution. The actual right to keep and bear arms is right there in the text for anyone to read. The right to keep and bear arms doesn’t emanate from a penumbra of another enumerated right. To hear or read many of those who want to restrict the right to keep and bear arms, you wouldn’t know it. This is not to say that all rights are unlimited, there can and ought to be limits on our rights. The first that should jump to your mind is not being able to yell fire in a crowded theatre. But many gun control advocates do want to severely curtail or eliminate the right to own a gun.

If you have not, you probably ought to read a very good piece from Meredith Dake-O’Connor at The Federalist. I want to cite two of her “6 Reasons Your Right-Wing Friend Isn’t Coming To Your Side On Gun Control.” They are reasons 1 and 6. Here they are:

1. We Rarely Get to Come to the Conversation in Good Faith
The most destructive, divisive response when dealing with Second Amendment advocates is the notion that we aren’t on your side of the issue because we “don’t care” about the tragedy and loss of life. Two years ago at Christmas I had a family member, exasperated that I wasn’t agreeing about gun control, snarl, “It appears that if your [step] daughter was killed because of gun violence you wouldn’t even care!”

I’ve seen journalists, politicians, and friends in recent days say something to the effect of “If children dying (in Newtown) won’t change their minds, nothing will!” The obvious implication is that we are unmoved by the loss of life.

It is a true dehumanization of Second Amendment advocates to think that we didn’t see the events unfolding in Las Vegas and have the same ache deep in our souls. That we, too, haven’t read the memorials of those who gave their lives for others and silently cried over our computers or phones. We felt it, and we hurt, and some of us even died or were heroes and rescued others. As hard as it may be to imagine, a person can watch this, ache, hurt, and be profoundly affected by these events and not change his or her position on the Second Amendment.

You may be thinking that the right-wing kneejerk response to assume that progressives just want to confiscate guns is also a denial of coming to the table in good faith. You would be right. However, I suggest assuming progressives just want to ban guns, or some other policy, is not equivalent to thinking, “If you really cared that people died you would agree with me.”

6. We Really Do Consider Owning Firearms a Right
I view the Constitution and the Declaration of Independence as declaring the intrinsic and inalienable rights of life, liberty, and the pursuit of happiness. And I believe the framers knew that liberty is only achieved when the citizenry is known to keep tyrannical government, and those who would do me harm, at bay. My favorite explainer on citizens and their relation with tyrannical government is James Otis’ “Rights of the British Colonies” essay, but many like to use Hamilton’s Federalist Paper No. 29.

Beyond that, part of having liberty is personal safety from harm. Outside of the grace of God, I am the one primarily responsible for my safety, because I am able to be responsible for my safety. While I view the government’s primary responsibility the safety of its citizens, I am first responsible for my safety. Further, because I am able to be responsible for my safety, I have a duty as a good citizen to be prepared to protect others who cannot protect themselves. This is part of liberty. And the primary way I can ensure my liberty is by owning a firearm (and voting for those in favor of limited government—but that’s another debate).

Second Amendment advocates truly view owning a firearm as an intrinsic right and a must to preserve liberty. It has nothing to do with hunting. It has nothing to do with hobbies. That’s why when discussions of firearms that aren’t meant for hunting come into the debate you don’t see many advocates conceding they aren’t needed. Further, it’s the primary reason we seem unwilling to budge on this policy when tragedies occur. Evil acts don’t cancel out a law-abiding citizen’s rights.

So many gun control advocates are begging for a conversation on this issue, and it’s unfortunate they don’t see the Second Amendment advocates as willing to engage. I find it hard to have an honest and vulnerable conversation about a deeply held right when the starting point is often challenging my motives while coming from a place of ignorance on firearms. If you’re really looking to win over your gun-loving friend, try reading up on firearms, dumping anti-NRA talking points, and assume her or she is equally committed to preventing these evil acts.

I agree very strongly with Ms. Dake-O’Connor in this. It is hard, almost impossible in fact, to have a discussion about guns in America when one side denies that owning guns is a right, and furthermore starts the discussion from the position of “we must do something” and “something” is restricting your rights.

This is a good a time as any to address that favorite trope of “if there is a right to own a gun, it would be a flintlock or other gun available in 1787.” This particular point upsets me greatly. More than it should really. If you put forth this argument are you also willing to apply it to the First Amendment? Your free speech rights are perfectly secure, as long as they are only exercised in a way that they would have been in 1787… Published paper broadsheets? Protected speech! Talking to your neighbor face to face? Protected speech! Internet? Not protected speech. Talking on the telephone, radio, or TV? Not protected speech. Is that really the heart of the argument? It would seem you have to believe the people who wrote the Constitution didn’t know that flintlocks were improvements on hand-cannons, which were better than crossbows, which were better than a regular bow, which was an improvement over a thrown spear, which was better than a thrown rock. I really wish we could retire this whole line of “argument.” And by the way, I will direct you to my previous point on the dangerous issue of abortion. If your right to bear arms were to be restricted to an 18th century firearm, do you want your abortion to be an 18th century affair as well?

So if it is the right of Americans to own guns, what then do we do about gun violence? There again, we’ve hit a very sticky wicket. I can’t tell you how many times I’ve had discussions that all boil down to me talking about reasonable restrictions on purchasing guns, and the person I’m talking to throwing up their hands in disgust because that will not prevent all gun violence. Should I just go full Sadiq Khan on guns and declare that mass shootings are “part and parcel” of living in America and we all have to learn to live with it? On the face of it that seems to be a pretty awful thing to say. But at some level it might be what we have to say.

I feel I have to state that we might have to deal with mass shootings in America, just as we are having to live with terror attacks around the world, because I am not willing to seriously curtail the rights of law abiding Americans. There is never going to be a foolproof system that will prevent a person wanting to do violence with a gun and who can legally acquire a gun from doing so. I am all for strict enforcement of the existing laws that can prevent those who should not be able to get guns from getting them. I also would be amenable to the restriction of transfers of guns between private citizens. (NB: I think there could be a system whereby a dealer who can run a background check for a nominal fee can be used to make sure transfers between non-related people don’t result in someone who shouldn’t have a gun getting one.) The fact remains that there has never been a foolproof system for preventing bad, even evil, things from happening. There will not be one on this issue either.

This is as good a place to address a proposal put forward by a great number of people. I’ve read about proposals to insure that anyone on a “terror watch list” to not be able to buy a gun. This seems like a reasonable proposal on its face, but it is rife with difficulties. It doesn’t actually take suspicion of terrorist ties to get on a terror watch list. Having a similar name to a terrorist could be enough. Posting something to Facebook or Twitter (or your blog) could get you on a watch list. A whole range of items can get you on a watch list. The big problem is discovering you’re on a watch list, and then getting off of it. I think it is bad policy to restrict a person’s Constitutional rights without a judicial hearing with due process to make it happen. Again, just like I have stated a number of times already in this missive, would you apply this standard to other Constitutional rights? Are you okay with having a person’s right against search and seizure to be restricted or eliminated because they were on a terror watch list? How about their right to free speech or religion? I am not. Neither am I okay with restricting access to a gun because someone is on a watch list.

So have I thrown up my hands and said that there is nothing we can do about gun violence? In some sense I have. Don’t think I don’t feel awful about it either. While we can’t stop every violent act committed with a gun, there are things we can do on the periphery to start to address some of the causes of gun violence. The recent and oft quoted op-ed piece by Leah Libresco entitled “I used to think gun control was the answer. My research told me otherwise.” is a good starting point. Many gun control advocates point to Great Britain and Australia as places where gun control and confiscation was enacted to some success. However, if you’ve read some of the linked pieces I’ve provided here, they are not analogous situations at all. First off, neither of those countries has a written Bill of Rights that specifically and clearly states that there is a right to keep and bear arms. Rights in Britain and Australia are more able to be changed by a law passed by their Parliaments. They don’t have the same tradition, or Constitution, that we do. Believe it or not, that makes it a hugely different matter.

This post has been, at so many levels, a sad and unfulfilling exercise. I make no apology for my support of the Second Amendment, and for the Bill of Rights, and the Constitution more broadly. But, after an atrocity is committed it is hard to feel like a full-throated statement of support is the proper thing to do. But it IS the proper thing to do. It is when it is most difficult to support your rights as an American that those rights need the most support. I strongly support the First Amendment, and I believe it is being severely and sometimes violently curtailed on college campuses across the country. I believe that the power of the police and state is expanding and our rights under the Fourth and Fifth Amendments are being diminished. It is in this time that we must stand up for our rights and fight that they not be reduced.

No matter what the costs may be.

Carry on.

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