So as I start putting down some thoughts on the Supreme Court when I read an oped in LA Times that reminds me of how stupendously different a world their Editorial Board lives in from the one I occupy.
Dean Esmay Kevin D links to the column – which proposes a kind of ‘cap and trade’ be applied to gun deaths, with the gun manufacturers held responsible for the deaths.
In other words, rather than telling gun makers what to do, performance-based regulation would tell them what outcome they must achieve: Reduce deaths by guns. Companies that achieve the target outcomes might receive large financial bonuses; companies that don’t would face severe financial penalties. Put simply, gun makers — whose products kill even when used as directed — would have to take responsibility for curbing the consequent public health toll.
I’ll ignore for a moment the interesting notion that artifacts – rather than those who wield them – are responsible for what is done with them, I’ll suggest that my response as a gun manufacturer would be simple: if you want to solve the problem of crime with guns, arm those who aren’t criminals.
So, let’s embrace their proposal. Let’s hand over gun regulation to the folks from Colt, Springfield Arms – but why limit it to the manufacturers – let’s take all the industry and turn the problem over to them. The management of Gunsite and folks like Massad Ayoob can sit down with the gun manufacturers can devise the new policies and programs around firearms regulation. Mandatory firearms training. Must-carry laws. Castle doctrines widely applied. Re-activation of the Civilian Marksmanship Program in schools.
Let’s give them a decade or two to see how the policies work – after all we’ve let folks like Jeffrey Fagan and Stephen Sugarman set the policies for the last 40 years. Fagan testified against the death penalty to the New York Legislature, and also opposed life without parole for juvenile murderers. Sugarman is a Boalt law professor who believes in applying performance-based regulation to, among other things, salt in prepared food and to fast food with the intent of managing childhood obesity.
No, I don’t seriously envision turning over firearms regulation to the NRA. But it’s honestly just as sensible as the proposal in the Times. More so, possibly.
I’m chuckling just thinking of the look on the Times Editorial staff as the new regulations are announced.
okay… I could go along with your plan!
Just an FYI: Dean Esmay didn’t write the piece you link, I did, Kevin D. I’m a writer a “Dean’s World.” If you look at the article again you’ll see my name and not his.
No worries, it’s a common mistake.
Okay, they’re silly, but at least they’re trying to be nice. Heller sure has taught some people humility in a hurry. I guess an armed society is a polite society.
Hey, for those places that feel that the 2A should be about militia service… bring back the militia! Train them, have them arm themselves, and then deploy them as extra patrols in dangerous urban areas.
Worked in Iraq.
Grim –
“Glenn Reynolds”:http://pajamasmedia.com/instapundit/archives2/021072.php notes that none of the dissenting justices in Heller argued for a “collective rights” interpretation of the 2nd Amendment. Apparently the militia argument is as dead as Saddam Hussein.
The collective rights notion has always been the logical downfall of gun control, and I think it’s the reason why more liberal courts refused for years to rule on the 2nd Amendment.
Turning over gun regulation to the NRA isn’t actually that bad of an idea. Not only do you force the NRA to adopt some realism, but no one has nearly as much incentive to do the job well.
It would work somewhat similarly to letting doctors regulate thier industry.
Now, if we could just get back to letting doctors regulate thier industry, we could probably cut health care costs 20% over night. We could then hold the threat of government regulation over thier heads: “Remember the bad old days when the government micromanaged every aspect of the health care industry. Run a tight ship or we could go back to that.”
Win win for everyone.
More seriously, I suspect the NRA governed firearms regulation would be very strong on requiring firearms training and education courses. Not only does it help ensure that gun accidents would go down – something no one has more desire to see than gun owners – but it would provide the NRA a point of contact with virtually all gun owners, which serves to further thier influence.
Open source regulation. An idea whose time has come again.
Repeat after me: Don’t insure over criminal behavior.
The ‘cap and trade’ system is a means of regulating something that is not traditionally illegal (like CO2 emissions), quite unlike murder. More importantly, its purpose is to find economically efficient levels of pollution. What is the economicly efficient level of murder and does the victim’s economic contributions to society matter? How much is a life worth? Would some murderers (often not the mot rationale people) take some solice and encouragement that their criminal act will provide financial awards fot the next of kin?
Brilliant idea, AL! The editorial you referenced made me furious, but your mental Jujutsu is stronger than mine. I could easily see the NRA expand Project Exile and really make the US a polite society.
Where do we sign up?
We do not have a problem with guns in this country. We have a problem with massive cultural decay. Get rid of every gun in the country, machetes will do just fine. Reference Rwanda for starters.
To talk about true solutions is unacceptable, because we get involved with totally non PC topics. Refer to the NYT article on racial distribution of homicide and it becomes blindingly obvious.
Lots of young male minorities are killing one another.
Folks- NOBODY is to control our god given right to bear arms. The Bill of Right affirms that right, it doesnt grant it, and Heller simply reaffirms it.
I dont take this proposal as anything like a modest suggestion. It is nothing more than an end run against the Constitution.
Just imagine applying this standard to other Amendments. Lets hold libraries and bookstores financially (if not criminaly) accountable for the ideas expressed in their works. Kid reads Mein Kampf and becomes a skin head- shut down Borders via financial penalty. Sound reasonable?
Whats astonishing to me is the scurrying the gun grabbers are doing. Theyd be wise to hang back and develop a coherant narrative instead of jumping on the first lunatic rationalizations that come to mind… as in Stevens dissent. The idea that if the government need is good enough it can overrule the constitution in a ‘balancing of needs’ type of regiment is, frankly, scary, and undoubtedly betrays a complete lack of understanding of _just what the Bill of Rights exists to do._ This from a Supreme Court Justice. I bid you consider what applying that to any other amendment could mean.
Mark B.
Actually, far from being appalled by such scenarios, I think the far left has been longing to apply “collective rights” reasoning to the other amendments, though old school liberals have long tried to apply it only to the 2nd.
Applying it to the 1st would mean that free speech is something that belongs to the public, not to individuals. This would open the door to punish all kinds of speech, and punishing people for disagreeing with them is something the left badly wants to do.
So this unanimous rebuke of collective rights in Heller is very good for rights in general, not just 2nd Amendment rights.
AL,
Excellent proposal! I see a straight shooter with upper management written all over ya.
@10 Mark B: Minor quibble, the balancing test was Breyer’s dissent, I believe. And I’d say that sort of incursion on the Bill of Rights has been happening for a while due to the War on Drugs.
Not that it would be any better a policy, but wouldn’t the cap-and-trade scheme for gun deaths work better applied against the _cities_ in which they occurred? Surely a community has to take more responsibility for the culture of violence it produces than the manufacturers of a tool. If Washington D.C. is worried about its citizens shooting each other, why aren’t they implementing some sort of community spirit program to stop that impulse, instead of playing the inevitably losing game of reducing the weapon options those violent offenders can use?
Well, if we made John Deere, International Harvester, Gleaner, CENEX, etc. responsible for farm productivity and set threshold fines, that’d sure stir things up. Might violate a few rights provisions, but it’d definitely be a “great leap forward”… into some abyss.
Were these guys actually published in a refereed journal, or is it just an MSM bid? Pity none of us speaks “crazy.”
“Folks- NOBODY is to control our god given right to bear arms. The Bill of Right affirms that right, it doesnt grant it, and Heller simply reaffirms it.”
Nobody controls our God given right to make a fool of ourselves either, but the Constitution’s recognition of our right to free speach generally isn’t seen as protecting the right to yell, “Fire!” in a theater, to republish a copyrighted work without the author’s permission, or to tell lies about someone.
I believe the majority opinion of the court recognizes the individual right to defend oneself and to bear arms to that end (and other lawful pursuits), but that the majority opinion of that court recognizes certain narrow, targeted, and reasonable restrictions may be imposed on that right.
For example, the opinion outright states that laws which say you forfiet that right if you commit a violent crime would stand under the majority opinion’s test, as would laws that forbid the carrying of arms into sensitive public buildings.
Hense, like it or not, the courts and our legislators will regulate our God god given right to bear arms regardless.
It is far better if those regulations are shaped by people who respect guns than by people who fear them.
I’m all for responcible gun ownership. So instead of fighting each other, the NRA and the legislators should get together to foster an environment of responcible gun ownership.
celebrim, everything you said is correct, and i dont have a problem with the court in these regards at all (ie, reasonable regulation). I was careful not to use the term ‘regulate’ as opposed to ‘control’, which has a different connotation.
In the context of the proposal, we arent talking about reasonable measures that meet a strict standard. We are talking about taking an endrun by putting gun sellers out of business so you cant get a weapon, although you can still technically have one. Its a poison pill.
We will see that kind of thing, and more immediately we will see jurisdictions refusing to approve lawful registrations (NYC has been doing this for years, amongst others) which will surely not stand up to judicial review.
Bottom line- the gun grabbers _will_ try to subvert the Constitution with techniques like these, and it doesnt due to humor them (at least without being humerous, like AL). If you listen to guys like Mayor Daley, they have no intention of allowing this decision to affect their fiefdoms.
Amen to Wilshard at #11. Just ask our friends to the North. Levant, Steyn and others run afoul of Canada’s various Human Rights Commissions are el primo object lessons.
I don’t think _Heller_ is likely to bring about “reasonable” gun regulation. I think its going to legitimize a whole host of regulations that derive from 200 year old rules of city councils. If people talked about the First Amendment the way Scalia discussed the Second Amendment, the Alien and Sedition Acts would be the starting point for discussion.
But what regulation a privy council of elders enacted in 1776 may bear on what the SCOTUS thinks is Constitutional today; it doesn’t really tell us what is reasonable today. But we live in times when people have constitutionalized their arguments, so what is Constitutional is what is permitted; what the Founders would have accepted is what we should receive with thanks from the government.
_If you listen to guys like Mayor Daley, they have no intention of allowing this decision to affect their fiefdoms._
Or worse, he’ll extend his fiefdom to the entire State to get the intended result.
#18 from PD Shaw:
bq. _”But we live in times when people have constitutionalized their arguments, so what is Constitutional is what is permitted; what the Founders would have accepted is what we should receive with thanks from the government.”_
I don’t think these two ideas go together.
Yes, the Supreme Court has constitutionalized everybody’s arguments, and set bounds for legitimacy even outside America, at least in the English-speaking world, where it’s common to at least consider American ideas on what should be done, if only because it’s easy to pull American stuff off the Internet.
The term “diversity” gained a huge boost in usage after Justice O’Connor decided it was the correct rationale for systematic race discrimination in universities, because it was an argument-winner.
And a university tutor a while back told me she was tired of reminding undergraduates that this isn’t America, we don’t have the US Supreme Court, and arguments based on what it said aren’t morally and legally decisive here. (Just important to bear in mind if you ever want the information systems you are setting up to work with Americans operating under American law.)
But that doesn’t mean that “what the Founders would have accepted is what we should receive with thanks from the government.” Far from it. It’s all about the Court, and what the Court does. Unless you think that Roe vs. Wade is all about what the Founders would have wanted, that’s clear.
I have the awful hunch that the gun violence problem will end up being “solved”, and Heller effectively undermined, by lawyers and insurance companies.
No doubt you’ve noticed (and probably laughed at) the more or less standard practice of banks in conceal-carry jurisdictions posting gun-ban notices – as though that’s going to deter an armed bank robber. But deterring criminals isn’t the real reason for gun bans by banks, and for that matter any other businesses. It’s all about avoiding massive liability lawsuits in the wake of a shooting on their property (which, as the logic goes, businesses would effectively be “allowing” to happen by not banning guns), as well as preserving their liability insurance coverage, or at least keeping their premiums from getting jacked way up.
As more and more jurisdictions liberalize their gun restrictions or have them overturned, personal liability insurers are bound to get very nervous about retaining additional millions of armed clients, and (barring new legislation against such a move) will likely force gun owners to choose between their guns and their liability coverage, either by threatening outright cancellation or making the premiums prohibitively expensive. This outcome would amount to gun control without any outright government involvement, which strikes me as far more insidious than anything we had before Heller.
#21 from Joshua:
bq. _”I have the awful hunch that the gun violence problem will end up being “solved”, and Heller effectively undermined, by lawyers and insurance companies.”_
As with California gay marriage, the point is that lawyers as a class are imposing their preferences in ways that do an end run around democracy and finally subvert it. More than three quarters of the money donated this cycle has gone to Barack Obama rather than to John McCain, so you can take Barack Obama’s social preferences as reflecting theirs. They’re not going to stop regardless of what’s in any constitution, and you can’t deal with them in good faith and on a common-sense understanding of what words and promises mean, because they’re lawyers.
But, they didn’t win _Heller_ and they might not win the next fights either. Go the gun lobby, yay the NRA!
David Blue: If it makes you feel any better Americans do from time to time look to Australian law, like the secret ballot. And American Courts do look at times to what other common-law countries have done (primarily Britain).
It probably won’t please you though that the _Heller_ decision provides philosophical support for _Roe v. Wade_ since the most conservative members of the court embraced the view that not all rights are enumerated or defined in the Constitution, but may pre-exist it.
PD Shaw, this thread is not about Roe.
But I’ll indulge you for a moment. I think I missed the part where the Heller opinion waved any hands regarding “emanations” and “penumbras”.
Rights pre-existing and unenumerated are indicated by much writing by the founders and their forebears and contemporaries, and even by (dare I mention it?):
bq. Amendment IX
bq. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Roe‘s “emanation / penumbra” stuff, on the other hand, is IMO just bizarre invented shibboleths. If abortion is precisely a matter of privacy, and both are a fundamental right not enumerated, have the decency to say so plainly, Mr Justice Blackmun (et al).
Beyond that, it appears that in Roe they thought they could execute a Solomonic baby-division (intentional ironic wording mine) by coming up with a “practical” dividing line for personhood, though they didn’t call it that: -third trimester- “The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests.”
Regardless, this isn’t a thread about Roe. I regret my own contribution to this thread’s derailment, and plead that others not do likewise.
Edited to correct my error regarding the actual text of the decision.
_”As with California gay marriage, the point is that lawyers as a class are imposing their preferences in ways that do an end run around democracy and finally subvert it.”_
The reason we have constitutional protections is precisely to limit the power of the _majority._ The vast majority of the time, consitutional protections being upheld will thwart the will of the majority. Otherwise, it wouldn’t be likely to be a law anyway, almost by definition in a republic. I suppose Heller is the exception that proves the rule, which may be why many liberals are confused by it. Courts don’t often uphold the clear will of the majority _and_ defend constitutional protections at the same time.
Lawyers as a class are heavily invested in this election; they’re what Obama’s “grassroots” are rooted in. They are the clerical class of the coming political theocracy.
@21: Actually, I think the stats show that, on average, folks who obtain CCW permits commit fewer crimes than even law enforcement personnel. It’d be pretty hard to justify any such liability blackmail, and would leave a nice, safe, enriching market open to any insurance company interested in making easy money.
David Blue:
bq. _”As with California gay marriage, the point is that lawyers as a class are imposing their preferences in ways that do an end run around democracy and finally subvert it.”_
#25 from Mark Buehner:
bq. “The reason we have constitutional protections is precisely to limit the power of the _majority_.”
If that were the only point, a dictator would serve as well, or better.
The majority must not be lorded over either. And rule by judges and by lawyers routinely abusing the law to impose their class sentiments on a law-abiding majority is out of keeping with that.
#25 from Mark Buehner:
bq. _”The vast majority of the time, consitutional protections being upheld will thwart the will of the majority. Otherwise, it wouldn’t be likely to be a law anyway, almost by definition in a republic.”_
By that definition what you have is not a republic, or at best it is one in great danger, because very often the will of various elites prevails, and none more dangerously to democratic rule that the legal elite.
#25 from Mark Buehner:
bq. _”I suppose Heller is the exception that proves the rule, which may be why many liberals are confused by it. Courts don’t often uphold the clear will of the majority and defend constitutional protections at the same time.”_
What they do, too often, is impose their own preferences.
_”If that were the only point, a dictator would serve as well, or better.”_
The body of the Constitution is designed to prevent an acculation of power by a dictator. The Bill of Rights is to prevent the tyranny of the majority. The Federalist and anti-Federalist papers explore this nicely.
_”The majority must not be lorded over either. And rule by judges and by lawyers routinely abusing the law to impose their class sentiments on a law-abiding majority is out of keeping with that.”_
Judicial activism cannot occur in a vacuum. At some point the electorate has to be held accountable for the presidents that appoint judges and the Senators that approve them, as well as legislature for not 1.either crafting the laws tightly or 2.not impeaching judges that step out of bounds or 3.changing the consitution.
That isn’t to say judicial activism isnt a problem, it certainly is. But it seems a more convenient political punching bag than an obsticle that should be overcome.
The gun manufacturers could very easily start the process of stopping gun violence. By shutting down.
What a clever, nuanced, worthy post. I think it’s your best ever, Mr Christian. …Not.
The process of stopping “gun violence” (so called) has already been started. Most guns owned in the US have never, and (we may extrapolate) will never, hurt or kill anyone. QED.
On the other hand, one can make a workable (deadly) firearm with about $10 worth of hardware store parts.
So the process you appear to recommend (or were you being ironic?) would never finish stopping “gun violence…” until hardware stores, or perhaps possession of material objects, were also utterly eliminated. The latter idea suggests one could also stop “gun violence” by simply eliminating the human race outright.
Most gun owners never hurting or killing anyone doesn’t completely stop “gun violence” either, of course.
Easier to stop swimming pool violence (if that’s what one ought to call “deaths inflicted by swimming pools”) — satellite verification is straightforward, filling them with concrete is a simple matter, etc.
How about the ammunition, Nortius? Of course, you are then going to say that the perps could cast their own bullets, make their own gunpowder… Well, if they are prepared to do all that then perhaps they deserve their kills.
One thing that I am pretty sure of is that very few Americans are conscious of, or care about, the effect of a buoyant civilian trade in lethal weapons within the USA on firearm deaths elsewhere.
Where do all the illegal guns on Britain’s streets come from? Or all the guns that the IRA used, for that matter?
Actually, I am in favour of the sentiments expressed in the Second Amendment. Unlike some, I am in favour of all of them. Including the first part.
I’ve got some suggestions.
End car violence. Permit nobody to own, possess or use potentially deadly vehicles, especially high-lethality SUV “assault vehicles”. Commit the car makers to results based incentives, including strong negative incentives, with no control of anything except their own output, which in effect they will have to reduce, and reduce, and reduce. Do this in a way that drives people crazy with rules disputes that lawyers will profit by managing. (I do not say “resolving”.)
This would be real reform. Vehicle violence dwarfs gun violence.
End 4th of July violence. Permit nobody to have any firecrackers of any kind, or drink, or celebrate anything in any way. Have an elaborate system, of performance based monitoring that will in effect require this, while creating lots of supervisory rules disputes to enrich and empower lawyers.
This would have the additional benefit of driving home to people that they are not independent. Where King George failed, lawyers and the nanny state have succeeded.
End excessive litigation. Make layers accept blame for every time somebody wants to sue somebody or act in a vexatious manner. Set performance targets towards a non-litigious society, and severely penalize lawyers as a class when they fail to meet them. Organize lawyer supervision duty in the same way we no organize jury duty, to maximize popular input.
That might be fun, and a worthwhile experiment.
At least it would have the merit that unlike with the previous three schemes, including the anti-gun scheme, those supervising the system wouldn’t be predators with a profit incentive to make the system burdensome.
bq. How about the ammunition, Nortius? Of course, you are then going to say that the perps could cast their own bullets, make their own gunpowder…
Or trade for them with corrupt cops and armorers, or smuggle them in from somewhere.
bq. One thing that I am pretty sure of is that very few Americans are conscious of, or care about, the effect of a buoyant civilian trade in lethal weapons within the USA on firearm deaths elsewhere.
One thing I am pretty sure of is that the UK’s incredibly buoyant knife assault rate has very little to do with the USA’s trade at all; and I’m pretty sure those count as lethal weapons. Another is that if the gun laws in the UK, etc. worked at their borders, whatever the US did or didn’t do would be moot.
bq. Actually, I am in favour of the sentiments expressed in the Second Amendment. Unlike some, I am in favour of all of them. Including the first part.
Me too. Did you know that many of the Continental (US Revolutionary forces’) capital ships of the line, and most all the cannon except for those captured (e.g.) at Fort Ticonderoga were privately subscribed and owned?
However, I draw a practical line well before nukes and ICBMs, and have a personal distaste for chem and bio weapons.
The whole concept of “Gun” violence is a crock. I don’t care 2 cents about “gun violence” per se, it’s violence violence that I find troubling.
Explain to me, if you might, how the decision falls back on the God-given rights endowed on the citizens of this great nation, but these rights are only self-contained and self-evident as evidenced by the literati of the day? While I truly believe if there were to be a more regulated, efficient, and deadly product that the average homeowner might purchase than the colonial “arm” or it’s offspring, the keeper of the manse should be able to keep it and use it, is this right God-endowed or Darwinian? If someone uninvited enters the home, what government would dare limit the response of it’s constituents? Please, Stevenites, explain this to me?