Second Amendment Challenge

BY Herschel Smith
13 years, 3 months ago

A study of the current public debate (including comments generated from Legislation on High Capacity Magazines) shows that the arguments by pro-gun control advocates generally fall into one or more of three categories.  The first category is hyperbolic, exaggerated and overheated prose.

For example, E. J. Dionne, Jr., writing for The Washington Post, believes that advocates of the Second Amendment hold “peculiar” views, that they are “extremists,” and that their rhetoric has been instrumental in blocking legislation that would have saved lives.

I came to realize, partly from e-mail exchanges with ardent foes of gun control over the years, that the real passion for a let-anything-go approach to guns has little to do with culture or hunting. It is rooted in a very peculiar view of how America has maintained its freedom. Rep. Ron Paul, as is his wont, expressed it as plainly as anyone.

“The Second Amendment is not about hunting deer or keeping a pistol in your nightstand,” the Texas Republican declared in 2006. “It is not about protecting oneself against common criminals. It is about preventing tyranny. The Founders knew that unarmed citizens would never be able to overthrow a tyrannical government as they did. . . . The muskets they used against the British army were the assault rifles of that time” …

The approach to guns, violence and “tyranny” promoted by loud voices on the right has been instrumental in blocking measures that could at least have contained the casualties in Tucson – or at Virginia Tech or Columbine. Extremism in defense of feeble gun laws is no virtue.

Dionne doesn’t really know any of this as we will discuss further, but while the Washington Post attempts to frame their anti-gun views in respectable arguments, a discussion thread at Media Matters (focused on the so-called Second Amendment Remedy) turned quickly into a lambaste of “right wing extremists,” and one commenter weighs in by saying that “the “Second Amendment Remedies” remark is one that even the most hypnotized wingnuts won’t generally defend.”

But Ken Klukowski, a research fellow at Liberty University School of Law, observes:

This right has two purposes. One is so Americans can defend themselves from criminals. Another — talked up by the Tea Party but ridiculed by the liberal elite — is that the Second Amendment protects citizens against our own government.

The Supreme Court declared in its landmark 2008 D.C. v. Heller decision — a decision praised by Rep. Gabrielle Giffords, D-Ariz. — that the Second Amendment was enshrined in the Constitution because when vast numbers of citizens have guns and know how to use them, “they are better able to resist tyranny.”

When serving on the California Supreme Court, now-D.C. Circuit Judge Janice Rogers Brown observed, “political writings of the [Founding Fathers] repeatedly expressed a dual concern: facilitating the natural right of self-defense and assuring an armed citizenry capable of repelling foreign invaders and quelling tyrannical leaders.”

Ninth Circuit Judge Diarmuid O’Scannlain explained the Second Amendment “right contains both a political component — it is a means to protect the public from tyranny — and a personal component — it is a means to protect the individual from threats to life or limb.”

The most sobering words come from Judge Alex Kozinski of the 9th Circuit, who wrote, “the simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people.”

The son of Holocaust survivors, Kozinski continued, “The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies seem today, facing them unprepared is a mistake a free people get to make only once.”

When leftist rhetoric suffers from a refusal to do even the most basic homework, it’s difficult to take it very seriously.  The second category into which much rhetoric seems to fit is one of a fundamentally flawed mechanical understanding of firearms and how they work.

Robert Rector, writing for the Pasadena Star-News, says that he’s ex-Army, but then treats us to this confused set of plans for gun control:

The Second Amendment is a reality. We have the right to keep and bear arms and I do not wish it repealed … I do believe we need to reinstitute the federal assault weapons ban, signed into law by President Clinton and allowed to expire under President Bush. It would, among other things, have prohibited the magazine which allowed the shooter to fire 33 rounds before he was stopped.

I believe we need effective gun control. The right to bear arms doesn’t allow you to own nuclear weapons, surface-to-air missiles or flame-throwers. We should add to that list semi-automatic handguns, super-sized ammo magazines and concealed weapons of any kind.

Rector doesn’t wish the Second Amendment to be repealed, but he wishes to ban semi-automatic handguns, high capacity magazines and “concealed weapons of any kind.”  How exactly one could allow Second Amendment rights and yet ban the ownership of any weapon that could be concealed isn’t explained (or obvious).  Perhaps Rector wants us to return to single action pistols (that aren’t concealable – if there is such a thing), but he justifies this by denying a right to own a nuclear weapon.

The third category into which much of the rhetoric falls is illogical.  Most proponents of a ban on high capacity magazines confuse causation with correlation, and one may include the “excluded middle” in their list of problems.  If high capacity magazines weren’t so readily available, they say, crimes like this wouldn’t occur.  But this hasn’t been demonstrated, and there are other options.  The shooter could simply become skilled at rapid magazine changeout (and see here and here too).  Or perhaps since criminals don’t care about the law, they might choose to steal a high capacity magazine or obtain one on the black market.  Another option might be to become skilled at the use of tool and die equipment and fabricate their own (after all, it’s only a box with a spring).  Yet another option would be to carry two or more handguns, with rounds chambered, so that magazine changeout would be unnecessary.  The reader may be able to come up with more options.

Besides being unable to demonstrate that a ban on high capacity magazines would effect the desired outcome, it is a particularly ghoulish and creepy argument anyway to say that it’s okay for a shooter to kill ten people in a crowd (the proposed limit on magazine capacity), but greater than ten deaths is not acceptable.  The threshold is completely arbitrary and totally capricious.

One may add to the list of logical fallacies ad hominem insults and an appeal to authority (the genetic fallacy).  The leftists are especially crowing about alleged gun rights advocates supporting the proposed ban on high capacity magazines.  Vice President Dick Cheney may be open to the idea, although he doesn’t explain what he thinks it will accomplish.  And Peggy Noonan even recommends that Obama pursue the idea, while observing that the GOP likely won’t fight it in the Congress.

What civilian needs a pistol with a magazine that loads 33 bullets and allows you to kill that many people without even stopping to reload? No one but people with bad intent. Those clips  were banned once; the president should call for reimposing the ban. The Republican Party will not go to the wall to defend extended clips. The problem is the Democratic Party, which overreached after the assassinations of the 1960s, talked about banning all handguns, and suffered a lasting political setback. Now Democrats are so spooked they won’t even move forward on small and obvious things like this. The president should seize the moment and come out strong for a ban.

Of course, Noonan gives us yet another problematic argument, i.e., assuming that the Constitution is discussing needs rather than rights.  The road down which she turns is a dastardly one indeed, since Noonan may be not able to convince an empowered government that she needs an automobile for travel or a computer for writing her commentaries.

So here is a challenge – a Second Amendment challenge.  Give us an argument by which we may conclude that a ban on high capacity magazines (or semi-automatic handguns) is constitutional and will effect the desired outcome.  Do so without using hyperbolic, exaggerated language and without insults, and make it demonstrably logical in its construction.  In all of my study I have yet to run across such an argument.

Prior: Legislation on High Capacity Magazines

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  1. On January 23, 2011 at 8:39 pm, Burk said:

    Hi, Cap’n-

    Thanks for a cogent rundown of the argument. I think Mr. Rector makes more sense that you claim, but anyhow, let me provide what you seek.

    I will accept your rationale as articulated by Mr. Klukowski- that tyranny is the prospect which the Second amendment, at least by its modern interpreters, seeks to prevent. The implicit rationale is that no matter how up-armed the state may be, a determined populace with small arms is capable of overthrowing that imagined tyrrany. In view of our problems in Afghanistan and elsewhere, this is not far-fetched.

    Yet, the first question that comes to mind is- where is the evidence? Did the Tunisian revolution require a population bandoleered with small arms? Only if you call cell phones small arms! Ditto for every single progressive revolution in the last few decades. People power has been the empirical mode of revolution, not armed conflict. The ability of the Afghans to expel the Soviets stands as a counter-case, and what was its desiteratum? Anarchy followed by theocracy, followed by international terrorism. Would the green revolution in Iran been more fortunate with small arms? I sincerely doubt it, because the government was willing and able to escalate as needed.

    Fine- let us nevertheless accept that small arms are a practical method of overthrowing tyranny. There is still some work to do, however. We need to define exactly which arms lend themselves to such a last-ditch constitutionalism, while not lending themselves to widespread anarchy and impaired health outcomes. The founder’s mention of a “well-regulated” militia is a clue. They weren’t going around handing out guns to blacks, for example. They were not handing out guns to all and sundry. Cannons were probably not a matter of private purchase. They had implicit gun control due to the cost of guns, the skill involved in their use, and their lack of concealment (due to their size).

    Now we face a totally different landscape- easily concealable guns that can be used by anyone and bought by anyone with the most modest means. Overthrowing tyranny would involve motivated people who could obtain and bear arms in the face of some obstacles. It would not (or should not) involve people who obtain guns on a lark, at their local walmart, with neither forethought nor afterthought. From these premises, one can easily argue that handguns, for instance, have no necessary role in this right at all. While certainly useful to all sorts of conflicts, they are not necessary to fulfill the aim of furnishing citizens with plenty of (hunting) arms while at the same time providing an anti-tyranny reserve force. They aren’t even very accurate.

    The relevant arms are closely related to you premises, and not all arms fit the bill- not even all small arms.

  2. On January 23, 2011 at 8:49 pm, Herschel Smith said:

    You didn’t do what I requested in the final paragraph of the article, Burk. Interesting perspective, but not germane.

  3. On January 23, 2011 at 9:06 pm, Mr. Mark said:

    In a nation of reality-show addicts, I don’t have much faith in logic or reason getting through to people. Some people default to individual freedom and some people default to a nanny-state lifetime subscription. Those who readily choose individual freedom will tend to be receptive to logic and reason as such people normally do their own thinking. Those who readily choose to be controlled by a nanny-state will resist logic and reason as they seldom trust their own decision-making ability, preferring to leave that to others.

    We see it in subjects far beyond 2nd Amendment rights. It shows up in the debate over anthropogenic climate change, the debate over approaches to transportation security, and the debate over how to deal with the threat of terrorism in general.

    In the debate over anthropogenic climate change, we see people who demand economically-damaging policies on the basis of a purported scientific consensus – seeking to replace the scientific method with something akin to viewer-voting in a reality TV show. “Lot’s of ‘scientists’ believe it so it MUST be true…” Once upon a time, lots of “scientists” thought that the sun orbited the Earth, too. Where they right? Doesn’t look like it.

    In the debate over transportation security, advocates for intrusive security measures aimed broadly at all travelers seem mesmerized by the perceived omnipotence of a Big Government Agency. “I mean, if they got a whole agency of the United States Government and lots of suburbans an sunglasses they’ve gotta be right…right?” Wrong. (Google the terms: Detroit Underwear Father Warned)

    In the debate over countering terrorism in general, we have seen a debate rage with incredible intensity among American officers and academics over how to best conduct counterinsurgency in Afghanistan. Less attention seems to have been paid to IF we ought to be doing counterinsurgency there in the first place. Again and again, the coinistas point to books by other coinistas and say, “See, see, see…HE said we ought to do it this way and HE is an EXPERT.” Meanwhile, where exactly is Ayman al-Zawahiri? Remember him? He was second in command (and now promoted, I presume) of al Qaida and was somebody we sent troops there to go and get before this turned into a meals-on-wheels, nation-building, armed-UNICEF operation to prop up the government of a kleptomaniac who threatens to turn-Talilban on us everytime he gets under-medicated.

    There are those who think for themselves, and then there are the masses of people who bleat.

  4. On January 24, 2011 at 12:14 am, jewishodysseus said:

    Herschel, I’m so glad you pointed out that “who NEEDS so many shots?” argument. This always-malicious attack was best demonstrated by William Shakespeare, in King Lear, Act 2, Scene 4, where the King confronts his daughters who suddenly had eliminated half of the Court he had retained for himself after handing over power to the daughters:


    Those wicked creatures yet do look well-favour’d,
    When others are more wicked: not being the worst
    Stands in some rank of praise.

    I’ll go with thee:
    Thy fifty yet doth double five and twenty,
    And thou art twice her love.


    Hear me, my lord;
    What need you five and twenty, ten, or five,
    To follow in a house where twice so many
    Have a command to tend you?


    What need one?


    O, reason not the need: our basest beggars
    Are in the poorest thing superfluous:
    Allow not nature more than nature needs,
    Man’s life’s as cheap as beast’s: thou art a lady;
    If only to go warm were gorgeous,
    Why, nature needs not what thou gorgeous wear’st,
    Which scarcely keeps thee warm. But, for true need,–
    You heavens, give me that patience, patience I need! ”

    The King, of course, was eventually reduced to a hunted refugee in a hovel, which is exactly the condition the Left wants for American citizens. But they won’t go quietly if they are well-armed.

  5. On January 24, 2011 at 2:53 pm, Harold said:

    And if anyone doubts that th 2nd amendment can be used to overthrow government, Battle of Athens 1946. That is Athens in Tennessee, USA.

  6. On January 25, 2011 at 4:26 pm, TS Alfabet said:

    May I also point to a corollary of what Herschel said that the Left not only eschews logic, history and common sense, but throws in hypocrisy to boot.

    Consider good Professor Piven who has openly called for the kind of rioting and violence seen in Greece as a means for liberals to get their policy preferences acted upon in this country.

    Yes, it is perfectly harmless and OK for liberal professors to advocate violence and death, but it is completely out of bounds for Americans to provide themselves with the means of protection against those threats.

  7. On January 25, 2011 at 5:34 pm, scott s. said:

    I don’t know when it came into effect, but my state (Hawaii) has had an absolute ban on “large capacity” (> 10 round) magazines capable of being used in handguns. The ban did not prevent the largest mass-shooting in Hawaii history, the so-called “Xerox shooting” where 7 were killed by disgruntled employee using a Glock 9 and multiple magazines. I’ve never understood the rationale for 10 rnd ban — what makes that a magic number? Your typical full size double-stack 9 will easily take a 14 or 15 rnd mag within the grip, and the “legal” mags are the same size, just blocked at the bottom 1/3. I can see that the 30 rnd mags in a 9 seem kind of pointless — never used one but they seem to me to make a pistol kind of hard to manage. OTOH, a 30 round mag on a rifle seems like no big deal. I’ve shot the 25 rounder on a Ruger 10-22, and it was fun, which seems to be the main point of the 10-22.

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You are currently reading "Second Amendment Challenge", entry #6038 on The Captain's Journal.

This article is filed under the category(s) Federal Firearms Laws,Firearms,Second Amendment and was published January 23rd, 2011 by Herschel Smith.

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