Nature comes a-calling

Not long ago, I mentioned a bobcat that was shot in nearby Cottonwood after mauling a customer in a local bar. Well, nature's sharp and toothy reality came by for a visit again, this time in the form of a young bear. The bear wandered around the area, took down a goat for supper, and was finally shot by Game and Fish.

I'm sorry the bear was shot, I really am. I don't shoot rattlesnakes if I can just walk around them, and I don't like rattlers half as much as I like bears.

But the bear's fate was sealed about the time it tore a goat into snack-sized pieces and went looking for more.

Verde Sante Fe, the development where the bear was first sighted, is about three miles from my house. It's an odd bit of suburbia surrounded by desert and grazing cattle. I have to pass the development on my way to and from home.

The hills behind the development, into which the bear wandered, are where I used to run my dogs before I picked a spot closer to home. I ride my mountain bike on the jeep roads back there. Those hills are actually nearly unbroken Forest Service land leading straight to my house and the surrounding area. They're absolutely beautiful and full of wildlife.

Basically, we're up close and personal with nature. And, sometimes, nature is hungry.

It's easy for people who live at a distant remove from forest, desert and fur to get all misty-eyed about the denizens of the wilderness. People who actually live here can love the wild every bit as much, but rarely romanticize it to such an unrealistic extent. Ultimately, the animals with which we rub shoulders pose a potential danger to our pets, our livestock, our children and ourselves.

Usually, I put a .22 in my pocket when I run my dogs or take my kid on a hike. But bear ... This week, I traded my popgun for my .357. I hope I don't have to use it. But at least I'll have it handy.

You can trust the TSA with your right to bear arms (can't you?)

The federal government's "no-fly" list of people forbidden to board commercial airliners has been the target of much-deserved criticism. Court documents reveal that the grounds for placing people on the list are "not hard and fast rules" but "necessarily subjective" judgments exercised by squabbling agencies. Getting off the list requires navigating an opaque and reluctantly implemented appeals process or a lawsuit. Even the size of the no-fly list is uncertain, with the Transportation Security Administration insisting that high estimates result from people being denied boarding because they've been confused with names on the list (a distinction without a difference). And now enrollment on that bureaucratic nightmare is poised to become grounds for denying Americans the ability to purchase firearms.

What could possibly go wrong with that scheme?

Would-be gun-owners may be introduced to the arbitrary justice of the no-fly list courtesy of H.R. 2401, the "No Fly, No Buy Act of 2009." Introduced last week by Rep. Carolyn McCarthy, the announced intention of the legislation is "[t]o increase public safety and reduce the threat to domestic security by including persons who may be prevented from boarding an aircraft in the National Instant Criminal Background Check System, and for other purposes."

As Rep. McCarthy puts it in a press release:

The No Fly, No Buy Act uses existing TSA data to update the NICS system with the names of known or suspected terrorists to disqualify them from passing the Brady Background Check.

Rep. McCarthy was elected to Congress on a wave of sympathy over the murder of her husband and injury of her son during a mass murder on the Long Island Railroad. She has dedicated her career to a seemingly obsessive effort to restrict legal access to firearms by civilians (but not by government officials). Her sponsorship of H.R. 2401 adds fuel to charges that McCarthy's hostility to private firearms ownership overrides any concerns she might have about due process or simple justice.

To illustrate just how arbitrary and dangerous inclusion on the no-fly list can be, it's worth looking at revelations from just last fall that Maryland state troopers monitored antiwar protesters and other political activists and included their names on terrorist watch lists. That means people exercising fundamental First Amendment rights were listed as potential terrorists and put in the position of being denied the right to travel by air, among other serious consequences.

With regards to the creation of the list, former FBI agent Jack Cloonan told 60 Minutes:

"I know in our particular case they basically did a massive data dump and said 'Ok anybody that’s got a nexus to terrorism, let’s make sure they get on the list. And once that train left the station, or once that bullet went down range. There was no calling it back. And that is where we are."

The poor quality of the no-fly list, the arbitrary nature of the inclusion of names on the list and its impact on innocent people is no secret, having been covered by mainstream media and litigated in the courts for the past half decade plus. Rep. Carolyn McCarthy and co-sponsor Rep. Steve Israel, both of New York, can't claim that they don't know that the no-fly list is a civil liberties nightmare that serves only to seriously inconvenience people, violate rights and generate headline-grabbing news stories.

So it's fair to conclude that Rep. McCarthy has no problem with the arbitrary denial of individual rights, so long as such denial furthers her crusade against gun ownership.

Thin blue line shields us from an armed and dangerous felon

I've always been dubious about the idea that convicted felons should be stripped of important civil rights even after they've serve their time. That's especially true of non-violent offenders. And it's even more concerning when we're talking about somebody deprived of their rights decades after a crime. (We'll put aside, for the moment, concerns about the crimes that never should have been crimes.)

We have both in a story from Connecticut, ably covered by David Codrea of The Examiner:

And the purpose of the raid? The compelling reason 15 heavily-armed police state ninjas used a battering ram on an unlocked door, assaulted and threw citizens to the ground, put guns to their heads, terrorized a man with a heart condition, destroyed and seized property, and generally trashed the place?

Because a son who "was arrested 34 years ago at the age of 17 with a friend who had forged a check [and] hasn't been arrested since" was living with his gun owner father.

That's right. The ATF pulled a D-Day on a peaceful family because one person dwelling in the home, alongside a gun owner, was arrested 34 years ago.

The kicker? After all that fuss, the ATF confiscated all guns but one. They left behind a loaded Beretta pistol.

If any of this makes sense to you, you have a better insight into cop-think than I ever will.

The Second Amendment -- coming to a state near you

Last summer, when the U.S. Supreme Court recognized what everybody else already knew -- that the Second Amendment protects individual rights -- the battle over the right to bear arms was far from settled. In particular, courts still had to determine if the amendment protected individuals against restrictive state laws, as well as against the federal government. Now, the influential 9th Circuit Court of Appeals has chimed in with a resounding "yes," saying the Second Amendment has the same status as the First and Fourth Amendments in protecting Americans' rights.

What's at issue here is a concept called "incorporation," which is bound to cure insomnia in most people, but means everything in the world of constitutional law. Basically, when the Bill of Rights was originally written, it applied only to the federal government. After the Civil War, the Fourteenth Amendment extended the Bill of Rights' reach to the states, though legal scholars still get into angry tussles over just which clause in the amendment does the heavy lifting (I did mention insomnia, right?): the due process clause or privileges and immunities.

The Supreme Court has also been selective in incorporating the Bill of Rights for reasons that make absolutely no sense whatsoever. Really.

That said, incorporation has been the big question hanging over last summer's decision in D.C. v. Heller, recognizing that the Second Amendment protects individual rights, not some sort of vague communal right.

In a decision released today, in the case of Nordyke v. King (PDF), the 9th Circcuit Court of Appeals takes a big step toward resolving remaining questions about the scope of Second Amendment protections. Writing for the court, Judge Diarmuid O'Scannlain first notes that Heller abrogated the appeals court's earlier holding that the Second Amendment protected only a collective right. He then notes:

[I]f the suspension of trial by jury, taxation without representation, and other offenses constituted the most offensive instances of British tyranny, the ability to call up armsbearing citizens was considered the essential means of colonial resistance. Indeed, the attempt by British soldiers to destroy a cache of American ammunition at Concord, Massachusetts, sparked the battles at Lexington and Concord, which began the Revolutionary War. For the colonists, the importance of the right to bear arms “was not merely speculative theory. It was the lived experience of the[ ] age.” ...

whereas the Supreme Court has previously incorporated rights the colonists fought for, we have here both a right they fought for and the right that allowed them to fight.

Ultimately, and importantly, O'Scannlain writes:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

So, at least for the large region of the country covered by the 9th Circuit -- the entire West Coast, plus Idaho, Montana, Nevada and Arizona -- incorporation of the Second Amendment is a settled issue (unless the Supreme Court says otherwise).

But how extensive are those protections? That's a valid question to ask, given the outcome of Nordyke. While the court incorporated the Second Amendment, it ruled that the plaintiff wasn't protected by that amendment from a local law that essentially bars the presence of guns at gun shows held on public property. While that doesn't strike at the very core of the right to bear arms -- the ability to own weapons for self-defense -- it's not a fringe consideration either.

The court's rationale isn't especially convincing. Constitutional scholar Eugene Volokh, a professor of law at UCLA, says, "I'm inclined to say that the panel's general analysis on this guns-on-public-property is considerably more cursory and less clear than it ought to be." In short, the court suggests that "open, public spaces" are "sensitive places" like schools or a government buildings, and so restrictions can be placed on the exercise of certain rights, such as the possession of firearms. That's a sweeping statement that could limit weapons possession to private homes and businesses.

It's good to have the Second Amendment incorporated so that it protects us against state and local governments. But we have yet to discover how much protection it will provide.

You know that bobcat story that's been making the rounds ...

... about the wild cat that wandered into a bar in Arizona and mauled a customer? Well, that happened down the road from me in Cottonwood, which is where my wife works, my kid goes to day care and we do most of our shopping. While the story is getting the gee-whiz treatment in the press, animal encounters aren't unusual around here. It's one of the reasons, don't you know, that people in this part of the world tend to carry little gadgets that go "bang" and make wild animals have second thoughts or stop thinking at all.

The bobcat that wandered into the Chapparal Bar turned out to be rabid, which explains why a normally shy animal that keeps to itself would go on a rampage in town, attacking people in three separate incidents.

Of course, one of the guys who got chewed had decided that it was a Kodak moment and put his face near the critter for a snapshot. Or, at least, that's the word around the local hospital.

While we don't usually worry about bobcats, mountain lions are another matter. They frequently wander into Jerome, just up the mountain (and surrounded by forest) or into Verde Villages on the outskirts of Cottonwood (and bordering desert and forest) or into Cottonwood itself (bordering desert and forest) or other parts of the surrounding area. Once among human habitations, they tend to upset folks by snacking on cats and dogs and stalking people.

Occasionally, lions eat a person, though not recently -- around here. There was a non-fatal attack in the southern part of the county last year.

All the settlements around here are really islands of people in a sea of wilderness. We also have black bear living in our wild areas. Lots and lots of coyote, too. There's a coyote pack that comes by my property almost every night, since we're located near the Verde River in prime hunting ground for them. They like to taunt dogs to try to lure them from lighted, protected areas. If the dogs take the bait, you'll likely never see them again.

Coyotes don't often attack people, but when they do, children are the most likely targets (they're tender and bite-size).

This is why, when I take my three-year-old son for a walk, or run my dogs in the desert, I carry a gun. Many people around here do the same. We do it for the same reason we keep water in the car or tote a first-aid kit on hikes: precaution.

Nature is beautiful and we love living in the middle of it. But it keeps trying to eat us.

Juries quietly flip the bird to oppressive laws

In Washington, D.C., a jury ignored a military veteran's obvious violation of the city's draconian gun laws, setting him free with only a slap on the wrist. In LaSalle County, Illinois, a medical marijuana user found with 25 pounds of the plant didn't even get the slap; jurors chatted with him after finding him not guilty. While we can't know for sure, in both cases jury nullification was likely at work as regular people serving an important role in courtrooms exercised their power to quash laws they found repugnant.

Corporal Melroy H. Cort, who lost his knees to an improvised bomb in Ramadi, Iraq, was en route to Walter Reed Hospital from his home in Columbus, Ohio, when his car got a flat. He and his wife, Samantha, pulled over for repairs, at which time Cort, who has a concealed carry permit at home, retrieved his 9mm pistol from his glove compartment and put it in his pocket.

Cort's gun was spotted by somebody who called police, and Cort rapidly gained a rapid education in D.C. notoriously strict firearms laws. He was charged with carrying a pistol without a license, possession of an unregistered firearm and possession of ammunition. He spent the night behind bars for having the nerve to possess a weapon in a city that, while it has improved since its nadir in the 1990s, still has about triple the national average rate of violent crime.

Despite its crime rate, D.C. has done its best to deny residents the right to legally defend themselves. This is the city that was taken to court for its restrictions -- and lost, resulting in the landmark case of D.C. v. Heller, which reaffirmed that the Second Amendment protects the individual right to keep and bear arms. Depite that loss, city laws remain extremely restrictive, and Cort had clearly run afoul of local law.

But an amazing thing happened in court. According to the Washington Post:

After being deadlocked twice, a D.C. Superior Court jury yesterday acquitted a Marine amputee on felony charges of gun possession stemming from an arrest while he was on the way to Walter Reed Army Medical Center. ...

Although acquitting him of the gun charges, the jury found Cort guilty of possessing ammunition, a misdemeanor. He was sentenced to time already spent in the D.C. jail.

It's hard to avoid the conclusion that the jury ultimately saw no benefit in applying the city's tight gun laws to a handicapped man who was just passing through. Maybe they even questioned the overall propriety of the laws. In the end, they rather clearly ignored the law to set Cort free with just a nominal slap on the wrist -- which he plans to appeal.

And that brings us to the case of Loren J. Swift. Swift was arrested during a peaceful encounter at his home with a sizeable quantity of marijuana and plants -- reportedly 25 pounds and 50 pounds, respectively. He had been convicted once before for marijuana possession. A Navy veteran, Swift says he smokes marijuana to relieve pain and alleviate post-traumatic stress disorder, but Illinois does not yet have a medical marijuana law.

Twenty-five pounds of grass, plus plants, in a state where marijuana is strictly illegal. That doesn't sound good for Swift. Except ...

On Wednesday in La Salle County Circuit Court, several jurors shook hands with an emotional Loren J. Swift after finding him not guilty of a marijuana charge that would have sent him to prison. ...

In the courthouse lobby, after the verdict, two male jurors talked and laughed with Swift and his attorney, Randy Gordon; one of the jurors patted Swift on his back. However, one of these jurors refused to admit he was a juror when The Times approached him for comment about the verdict; the other juror didn't deny he was indeed a juror, but nevertheless refused to talk.

Not surprisingly, observers at Swift's trial openly speculated about jury nullification. Once again, it's hard to avoid the conclusion that jurors sympathized more with the defendant than with the law, so decided to ignore what the statute books say.

In doing so, in both cases, justice prevailed. So did liberty.

We don't know what was going through the jurors' heads in the Cort and Swift trials, or whether any jurors were even familiar with jury nullification. But it's not that difficult a concept to invent from scratch, if necessary.

Historically, as President John Adams put it, it has been the juror's "duty ... to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." Unfortunately, you won't come across that quote from Adams in many modern courtrooms. Government officials don't like being second-guessed by the hoi polloi, so the tradition of independent juries has been allowed to wither from neglect. Few jurors ever learn about the traditional power of juries.

But you don't need to know history to have an inkling that the rights of the individual sometimes violate the dictates of the law -- and then decide to come down in favor of individual rights. And individual rights are an endangered species in a nation increasingly hemmed in by laws and regulations that seem to render ever more of our daily activities either mandatory or forbidden. They need as much protection as they can get.

To preserve what's left of our liberty, jury nullification is a good and powerful tool for checking government power. But since it is frequently discouraged by judges and prosecutors jealous of their prerogatives, it's generally exercised on the sly -- often by jurors unaware that they're doing exactly what was originally intended. For that reason, we'll likely never know exactly when nullification is being exercised.

But we can celebrate it when we see it.

The DIY rebuttal to gun control

The Obama administration is off to a good start on civil liberties when it comes to Guantanamo, reviving some hopes of due process and the possibility that arrest by federal agents will less frequently result in people dangling by their thumbs. President Obama is also making the right noises on medical marijuana. But gun owners are more than a bit concerned that their rights will be ridden over roughshod during the next few years. While there's no sure way of heading off government action, it is possible to evade and sabotage the enforcement of restrictive laws. Specifically, gun owners should continue to acquire and distribute the know-how for making their own guns.

Gun owners' concerns may well be justified; President Barack Obama has a history of hostility to private ownership of firearms and Attorney General Eric Holder went so far as to sign on to former Attorney General Janet Reno's amicus brief (PDF) in the case of D.C. v. Heller, opposing the position that the Supreme Court finally adopted: that the Second Amendment to the U.S. Constitution protects an individual right to keep and bear arms. There are already a couple of long-shot gun control measures circulating in Congress, including H.R. 45, a licensing and registration measure.

But laws are only as good as their enforceability -- a lesson that politicians need to take to heart in a country where 42.4% of the population has smoked illicitly cultivated grass decades after marijuana was outlawed, and where Prohibition was a moonshine-soaked failure. If self-defense-rights activists want to preserve their liberty, they need to continue battling in legislatures and the courts, but they should also take steps to make sure that gun laws are unenforceable -- that bans on firearms are countered by the equivalent of homebrew, moonshine and speakeasies.

This isn't exactly reinventing the wheel. Underground weapons manufacturing is a major business in places as far apart as the Philippines and Pakistan. VBS.tv offers a fascinating video tour of firearms and ammunition manufacturing and sales under remarkably crude conditions in the tribal areas of Pakistan. In the market there, gunsmiths turn out everything from muzzleloaders to hand-crafted Lewis guns and AK-47s in facilities less well-equipped than the average American home workshop.

So, where do you start? Well, you need plans, of course. You could copy an existing firearm, like those Pakistani craftsmen do, or like the World War II-era Polish resistance and pre-independence Israelis did when they churned out vast quantities of Sten guns. Or you could acquire plans purposely created for home manufacturing. Yes, they exist. And one of the better known sources for such plans is Philip A. Luty.

Probably the best endorsement for Luty's designs is that at least one of them works. We know it works because he went to prison in Britain for building a working copy from the design he published in the book, Expedient Homemade Firearms: The 9mm Submachine Gun. The book was written as a rejoinder to the British government's restrictive laws regarding firearms, and the powers-that-be didn't appreciate the rebuttal.

The time behind bars seems to have just ticked him off, since Luty, now free, is the proprietor of The Home Gunsmith Website, which offers several free plans for simple, improvised firearms. The site also offers plans for more complicated weapons for sale. And should the authorities get clever and decide to restrict ammunition ... well, Luty now offers a book for sale on how to improvise that, too.

It should be noted that, given Luty's ex-con status and the relatively close scrutiny under which he certainly operates these days, his more-recent designs have probably not been test-fired as diligently as the original. So, caveat emptor.

The point here isn't that setting up underground firearms bazaars is an adequate substitute for living with a government that knows its limits and respects our rights. It's that the means exist for rendering restrictive laws impotent and pointless. Short of turning your basement into a reproduction of the Ayalon Institute, the best use for simple gun plans may be to mail them to members of Congress as evidence that Americans are prepared to short-circuit their most draconian efforts. Imagine how much grief and blood could have been spared if pre-Prohibition legislators had been buried under such a weight of homebrew recipes that they'd conceded the point that a ban on alcoholic beverages was destined to fail.

Well, OK. Such an effort is unlikely to elicit rational thought in the minds of government officials. But it's a low-cost approach that just might have some effect. And the effort would help in developing and distributing effective plans that would ensure the ultimate failure of legal restrictions on the means for self defense.

Besides, it's just pretty nifty to have plans for building your own submachine gun.

Below, a video demonstration of a homemade .22-caliber pistol.

Prohibitionists scheme to create a black market in ammunition

Hobbled by the Supreme Court decision in D.C. v. Heller, recognizing that individuals have a constitutionally protected right to keep and bear arms, gun control advocates are roaming the land with virtual lightbulbs over their heads. "Ah ha," they say. "You can have your guns, but we'll control your ammunition." Well, they're not the first to think of the idea, and they won't be the first to discover that "banning"' isn't synonymous with "eliminating."

California already has a law requiring firearms to include "microstamping" technology -- basically, firing pins that imprint traceable information on fired cases. The Brady Campaign wants to turn that into a national mandate (PDF). A group called Ammunition Accountability plans to go a step beyond, laser-engraving all bullets with serial numbers at the factory that could then be traced to purchasers in registered transactions. Laws to that effect have been introduced in 18 states, though none have yet passed. And, of course, some folks just want to ban ammunition altogether and convert firearms into decorative wallhangings.

There are, as you might guess, a few problems with these schemes.

Leave aside the cost of redesigning guns with mocrostamping technology and the challenge of replacing the roughly 270 million non-compliant guns already in circulation and in the hands of people not necessarily inclined to cooperate. Let's say you get it done. There is the added problem that few criminals are prone to purchasing their guns and ammunition in legal transactions requiring them to show their identification. Purchasing either a microstamping gun or laser-etched ammunition in a black-market transaction renders the encoded data useless.

Microstamping has the added flaw of being easy to defeat by swapping out the firing pin or by scraping off the stamping elements with a file. An old knife sharpening stone was used to remove the engraving in about one minute in an experiment (PDF) conducted by George G. Krivosta, of New York's Suffolk County Crime Laboratory. Krivosta said the technique could be performed with "no special equipment or knowledge needed."

So if your hypothetical criminal who shops for the tools of his trade at Wal-Mart does knock over liquor stores with a gun registered to his name, he can defeat microstamping with a rough stone.

The information contained in laser-engraved bullets would be harder to evade -- if they were purchased in registered transactions. But criminals can use ammunition that pre-dates the requirement. They can use stolen ammunition or ammunition purchased on the black market. Or they can use handloaded ammunition made in a commonly available press produced by one of several companies.

Which means that any effective ammunition control scheme would have to ban handloading and (as a failed Pennsylvania bill did) the possession of pre-law ammunition. So any ammunition control scheme, to be effective, inevitably edges toward a ban on ammunition.

Which raises the ultimate question: How effective could an ammunition ban be?

That brings us back to my earlier comment: They're not the first to think of the idea, and they won't be the first to discover that "banning"' isn't synonymous with "eliminating."

It's not that an ammunition ban or severe restriction would have no effect -- it would change things. Recreational shooting would be severely curtailed or destroyed entirely. If you effectively ban shooting, people won't shoot where you can hear or see them. They'll keep their guns and ammo cached out of sight. So a harmless pastime would suffer.

But the people who supposedly concern the government -- criminals, terrorists and political opponents of the powers-that-be -- really wouldn't feel a hit at all. Criminals only need a limited supply of ammunition to pursue their chosen vocations, as do terrorists. Those with political motivations are likely to posess stockpiles of ammunition with lifespans measurable in, at least, decades. And all three categories are willing to go outside the law for what they need.

And manufacturing ammunition isn't that hard. Just ask the Israelis about the Ayalon Institute. That's the name of the illicit factory in which Israeli guerrillas manufactured 40,000 rounds of 9mm ammunition per day to feed the submachine guns they made in another facility for their fight against British authorities. Under threat of the death penalty, the facility was built underground, with a functioning laundry overhead to conceal the operation.

Emulating the Ayalon Institute, the clever folks who currently build meth labs and submarines to smuggle cocaine could certainly knock off enough rounds to feed the black market appetite for ammunition. Especially in a country where making ammunition at home is considered a hobby and reloading equipment is already widely available. Illegal manufacture would be simple. That is, assuming enough couldn't be stolen from military and law-enforcement channels to satisfy demand.

And that's assuming a total ban. Tight restrictions would mean that recreational shooters use registered rounds while criminals stick with black-market ammo.

Look, I mentioned meth labs and cocaine smugglers above. Decades after outlawing drugs, we've accomplished little other than driving the drug trade underground and making it violent and corrosive. Prohibitions result not in compliance, but defiance. There's no reason whatsoever to think that controlling ammunition will be more effective than restrictions on other things that rub some set or other of control freaks the wrong way. People will find ways around any ban, especially for those criminal purposes about which the authorities are supposedly most concerned.

If illicit drug deals have turned dangerous and socially disruptive, just wait until the underground trade is in weapons and ammunition.

It's a blast from the past with New York's gun control laws

I've written before about how, when I was a New York City resident, I tired of the endless, intrusive and insulting process of applying for a pistol permit. Disgusted, I purchased a banned "assault weapon" on the black market. What I haven't written is that I also bought two pistols without a permit or registration -- perfectly legally. It was a purchase that would probably have never taken place without the perverse incentives inevitably created by restrictive laws.

For years, I stayed away from this topic because there was a nice, under-the-radar loophole in the law and I felt no need to rock the boat. It's still there, but it's not under the radar any more. The law allows for the red-tape-free purchase and possession of "antique firearms" and replicas thereof. That means guns in obsolete calibers for which ammunition is no longer manufactured. It also means muzzleloading hunting rifles. Most importantly, it includes cap-and-ball revolvers of the sort used around the middle of the 19th century. As the New York State Police Website puts it:

The Penal Law definition of antique firearm is generally applied to muzzle loading black powder firearms, but also applies to pistols or revolvers "that use fixed cartridges which are no longer available in the ordinary channels of commercial trade".

Muzzle loading pistols or revolvers do not have to be registered on a pistol permit if the owner never intends to fire them.

If they are possessed in a loaded condition or are simply possessed simultaneously with the components necessary to make them fire, they must first be registered on a valid pistol permit.

Note: Should a manufacturer begin to produce ammunition for a pistol or revolver for which ammunition had not been available previously, that weapon no longer meets the criteria of an antique weapon and is required to be registered. A pistol or revolver, regardless of age, when possessed with the ammunition necessary to make it discharge, is required to be registered.

This rare (in New York) oasis of relative freedom in a sea of overregulation survives in the Empire State largely because nobody ever had much reason to take notice. Criminals don't need to mess with loose gunpowder, percussion caps, lead bullets and grease. They just go to the black market and buy whatever modern weapons suit their fancy. So, frankly, does most everybody else. The usual estimate of illegal firearms in New York City is two million, as jaded urbanites apply the same attitude to gun control that has seen them through Prohibition, vice laws, the war on drugs and the rest of the regulatory state. But for people squeamish about illicit transactions and just looking for some insurance to keep in the nightstand, a cap-and-ball revolver might well do the job.

And there are some very nice working reproductions of Civil War-era guns available at very reasonable prices.

The opportunity for self defense provided by the muzzleloading exception to New York's byzantine gun laws has long been a matter of quiet understanding. The gun shop in which I purchased my (modern) pistol and started the legal paperwork for a permit so I could take the thing home had a small display case facing the main case of modern weapons. The smaller case contained modern reproductions of Colt, Remington and similar revolvers of the sort that won the West before anybody thought of wrapping the stuff that goes "bang" in a copper or brass tube to make it easier to handle. These revolvers take longer to load than their descendants, but once loaded, they function pretty much like today's guns.

While would-be gun buyers (inevitably) fumed over the hassle and expense of getting a modern weapon within the rules set by New York City (where the powerful are given special consideration for permits -- or bodyguards), these blast-from-the-past alternatives sat there, offering another option. Nobody said anything, but ... There can't be that many Civil War buffs in Manhattan.

I didn't buy my cap-and-ball guns at the store, because the frustration set in while I was at home. Besides, I wasn't going to pay New York prices if I could help it. So I mail-ordered what I wanted with no fuss.

Of course, New York's legal exception applied only so long as the guns were kept as paperweights. Bring ammo into the picture and the "loophole" goes away. But once you have the iron at home, what do the authorities know? And with my strictly under-the-table "assault weapon" purchase, I wasn't pretending to be law-abiding. In fact, I was on a sock-it-to-the-state tear.

So I bought percussion caps and bullets too. Gunpowder was another matter. It wasn't hard to find, but it was a tad more regulated than lead balls and I didn't want to raise any red flags. I actually improvised my own at first (it worked fine) before buying the real stuff outside the city.

And there I was, well-heeled with little fuss.

Oddly enough, I chuckled over the matter with a few Europeans about a year after the fact, and a Hungarian told me that the law was almost identical back in his home country. He said he knew plenty of people who didn't want to bother with the authorities or the black market, but who were packing like it was 1859. (A quick check reveals that Hungarian law still parallels New York antique-gun regulations.)

Unfortunately, last year, one of the twisted control freaks who infest elected offices in and around New York City got his knickers in a bunch over the antique-gun exception. In one of those statistical rolls of the dice, a New York State trooper was wounded with a black-powder rifle around the same time some guy was found with a muzzleloader on a college campus. That's two incidents in a state of 20 million people. In terms of things worth worrying about, that should have ranked up there with sewer gators coming up through your toilet and biting you on the ass. But this is New York. Assemblyman Michael N. Gianaris decided that antique guns are a threat to the public safety.

Ironically, Gianaris touts his Greek heritage in the first line of his official biography. The Greek government admits that the country's not-so-submissive population of fewer than 11 million people own 1.5 million illegal guns. You gotta wonder how Gianaris would fare in the old country.

So far, Gianaris's attempt to disarm the 19th century (and its admirers) hasn't gone anywhere. That's probably because of the loud screams raised by New York's many museums and historical reenactors, who fear felony charges for any mistakes they may make while licensing and registering their extensive collections of wall-hangers.

Welcome to our world.

But Gianaris and some breathless press coverage about "deadly" black-powder guns have let the cat out of the bag. New Yorkers may or may not continue to be able to arm themselves with the finest defense technology available to Ulysses S. Grant, but they're no longer operating under the radar.

Besides, New Yorkers have better options. Until the law changes for the (less restrictive) better, one way or another, that sizeable minority of New York City residents who want to exercise the right to self defense can take advantage of one of the better black markets in the country. Really, anything is offered for sale -- much of it at pretty good prices. Most people looking for a gun in that city -- and unwilling to subject themselves to the intrusion, expense and arbitrary permit withdrawals of the legal process -- do exactly that.

In all things, liberty finds a way around the law.

But it's still interesting to reflect on the weird holes in the law left by yet another effort to impose draconian restrictions on disfavored activities and objects by government officials who know what they don't like -- even if they don't understand it in the least. Overregulation always produces defiance and illicit markets. But sometimes it also produces oddities, like new life for antique technology.

Beware of well-armed Europeans

The Times of London recently carried an interesting report about the public response to a violent terrorist attack.

[T]wo such anarchists, lately come from an attempt to blow up the president of France, tried to commit a robbery in north London, armed with automatic pistols. ... Londoners, however, shot back – and the anarchists were pursued through the streets by a spontaneous hue-and-cry. The police, who could not find the key to their own gun cupboard, borrowed at least four pistols from passers-by, while other citizens armed with revolvers and shotguns preferred to use their weapons themselves to bring the assailants down.

If you're scratching your head, that's because the newspaper description is of an incident in 1909. At the time, the UK had no restrictions on private firearms ownership to speak of. People owned guns and carried them in public.

If you wonder what the crime rate was like with all of those well-armed Brits wandering around ... Well, there were about 9.6 murders per million people (PDF) in 1900. That dipped over the years, to a low of 6.2 per million in 1960 -- and then rose to over 14 per million by the end of the 20th century.

The strict gun control laws that we associate with Britain today really began with the red scares of World War I and were implemented thereafter, with handguns finally banned in 1997. So the murder rate seemed to first dip and then soar even as gun laws grew ever-tougher.

Which isn't supposed to be how it works in disarmed Europe, is it?

Well, European countries certainly have lower -- often, much lower -- murder rates than the U.S., but we tend to exaggerate their disarmed status. That's because most mainstream media comparisons of gun ownership dwell on official figures. How many guns Americans legally own vs. how many Germans legally own. That makes sense to American eyes, because most guns here are perfectly legal. That's exactly what gets gun control advocates so hot and bothered when they start crunching numbers. They want guns further restricted and made less common.

But less common isn't always what you get. Those official gun ownership numbers actually compare apples and oranges. That's because Europeans own an awful lot of guns outside the law. As of 2003, according to the Geneva-based Small Arms Survey (PDF), "Contrary to widely-accepted national myths, public gun ownership is commonplace in most European states." The survey adds, "public officials readily admit that unlicensed owners and unregistered guns greatly outnumber legal ones."

Even the 2003 figures may understate how unofficially well-armed European scofflaws are. The Small Arms Survey reported 350,000 unregistered guns in Greece in 2003. Two years later, the Greek government upped that figure -- to 1.5 million.

In countries with relatively loose gun laws -- like Finland -- most guns are legally held, as in the U.S. In countries with restrictive laws, like Germany, most guns are held illegally. Either way, people who want to own guns seem to go ahead and do so, no matter what the authorities want.

The result, in countries with tough laws, like the UK, is that you might have more than twice as many firearms owned in the shadows as out in the open. In France, more than five times as many guns are held illegally as legally.

So, Europeans are not so disarmed.

Why does this matter?

Well, if your population turns to supporting black markets, the logic of those illicit markets prevails. Once the mechanisms for satisfying demand move beyond the reach of the law, they acknowledge few limits. Again, from the Small Arms Survey 2003:

European criminals appear to be switching to heavier armaments. Instead of less capable revolvers, they increasingly have fully automatic pistols. Instead of hunting weapons, police are more commonly recovering sub-machine guns. Even larger weapons appear irregularly, illustrated when British police seized heavy machine guns and a mortar in March 2001.

With that booming underground market in place, you didn't think criminals were going to confine themselves to a few pocket pistols, did you?

And as illegally well-armed as many Europeans are, they're just not in a position to use those weapons against the armed bad guys the way the Londoners of 1909 were. Carrying a pistol in Edwardian times was a right, and chasing down a criminal was a civic duty. Doing the same these days carries a long prison sentence. The modern German gun owner may well use an illegal pistol to defend himself against a murderer -- after all, arrest is better than death. But he has good reason to resist the good samaritan urge to race around the corner to assist a stranger.

So Europeans still own their guns and they may even carry them, but they reserve their use for rare circumstances.

That Times description of a 1909 "hue and cry" was written by Richard Munday, a British firearms scholar who contrasted the century-old incident with the helplessness of Mumbai residents during the recent terrorist attack. India has suffered under strict gun control laws since the 19th century, leading Gandhi to lament, "Among the many misdeeds of British rule in India, history will look upon the act depriving a whole nation of arms as the blackest.”

In India, as elsewhere, people probably own a relatively large number of guns beyond the approval of the law. But under threat of prosecution and imprisonment, armed Mumbai residents certainly stayed at home to defend their families, leaving strangers to fend for themselves against the terrorists who openly used their illegal guns.

That's the end result of unenforceable laws for you. You get all the downside of whatever it is you're trying to restrict, but none of the benefits.

Plaxico Burress not alone in ignoring gun laws

New York Giants wide receiver Plaxico Burress accidentally shot himself with his own gun while nightclubbing in Manhattan. For his troubles, he received not just the medical treatment he needed and the public shaming he deserved (for lousy gun handling), but a fine and suspension from his team and the possibility of spending 15 years behind bars because the gun isn't licensed in New York City. Quietly, I suspect lots of New Yorkers sympathize with the unfortunate football player.

In carrying an unlicensed handgun, Burress is in good company. New York City politicians, protected by phalanxes of taxpayer-funded guards and politically awarded permits to carry weapons, impose some of the toughest gun laws in the country on the people over whom they rule. Even long guns require permits and registration, and the handgun permitting process is an ordeal that takes months and money and requires applicants to submit to a fair share of abuse from officials on the off chance they'll be approved. Even then, the city has been known to arbitrarily yank already issued handgun permits just to reduce the numbers on the streets.

Not surprisingly, many New Yorkers have chosen to acquire the means for self defense outside of official channels. While crime rates in the city are low now compared to years past, some neighborhoods are better than others, and some people are more at risk than their neighbors. Even the wealthy can be targets, if they don't hide, like Mayor Bloomberg, behind bodyguards. The International Herald Tribune reports, "Burress has not spoken publicly about what possessed him to pack a gun, but some have speculated that he was carrying it for safety reasons after teammate and fellow wide receiver Steve Smith was robbed at gunpoint three days earlier after being driven to his town house in a chauffeur-driven car." So owning and carrying a weapon has potential benefits, whether or not officials approve.

Nobody knows how many unlicensed guns are in New York City, but the running estimate for years has been two million. I come from a family that owned guns in the city for generations before I finally applied for a handgun permit in the mid-1990s so that I could shoot at the range. After I was "out" as a gun owner, I was approached repeatedly be people who assumed (correctly) that I'd be sympathetic to their armed-and-underground status and were, often, curious as to how they could "get legal." Some were longtime city dwellers who'd packed illegally since the Sullivan Act was young, others were new to the city, carrying iron from back home. All were curious as to the process for reducing their legal exposure while retaining their ability to defend themselves.

I told them not to bother. It's not worth the hassle and expense to "get legal," just to wonder if the cops will decide to cull you from the roles of permit-holders one day, or kick in your door because you forgot to renew on time.

I'm obviously not the only person to come to that conclusion. New York has responded not by making its laws less intrusive and easier to follow, but by toughening penalties. The potential hit for being caught in possession of loaded, unlicensed gun is now 15 years, up from seven not too long ago. It's also a felony conviction.

But the potential hit from not being able to defend yourself and your family against bad guys is being dead. It's hard to trump that with prison time.

And authorities require medical staff to report any patients that come through their doors with gunshot wounds, the better to enforce the law (similar reporting requirements are in place elsewhere and may also apply to other situations, such as child abuse). Mayor Bloomberg is quite cross that doctors and nurses at New York-Presbyterian Hospital Weill Cornell didn't immediately snitch on Burress to the cops.

Here's a newsflash: Doctors' and nurses' first priority is saving lives, not dropping a dime. I know many medical personnel, and they're often quite adept at selective blindness, deafness and short-term memory loss. They want the sick and injured to seek their help, not fear them. They're also not always impressed by the wisdom of the law.

In the end, toughening penalties for violating laws that offend people's sense of liberty, justice and common sense doesn't actually improve the viability of those laws. Instead, it widens the gap between how politicians want people to behave, and how those people actually live their lives. It also encourages popular contempt toward government and the law.

That contempt is probably a good thing. But less fortunate are the victims produced along the way, including athletes threatened with a decade or more behind bars for the "crime" of injuring themselves.

Eric Holder, not so great on guns and ganja

You can probably toss out those fondly held hopes for drug-law reform under the incoming Obama administration. Eric H. Holder, Jr., President-Elect Barack Obama's choice for Attorney General, is undoubtedly a competent nominee with significant Justice Department experience under his belt, but he's an enthusiastic supporter of drug prohibition even when it comes to simple marijuana possession. And if you were bitterly clinging to Obama's professed support for the Second Amendment, let the scales fall from your eyes. The likely AG-to-be is a long-time opponent of the right to bear arms.

Before he became Deputy Attorney General under Janet Reno in 1997, Holder was United States Attorney for the District of Columbia. In that office, he complained to the Washington Post that laws against marijuana in the nation's capital were too lenient.

U.S. Attorney Eric H. Holder Jr. said in an interview that he is considering not only prosecuting more marijuana cases but also asking the D.C. Council to enact stiffer penalties for the sale and use of marijuana.

"We have too long taken the view that what we would term to be minor crimes are not important," Holder said, referring to current attitudes toward marijuana use and other offenses such as panhandling.

The Washington Times reported on his charges that D.C.'s repeal of mandatory minimum sentences was "misguided" and his plans to make marijuana distribution a felony. He proposed "setting minimum sentences of 18 months for first-time convicted drug dealers, 36 months for the second time and 72 months for every conviction thereafter."

Holder is just as hostile to firearms possession as he is to the use of marijuana. As Deputy Attorney General, he put forward Clinton administration proposals for imposing draconian restrictions on private individuals who want to sell a gun or two from their personal collections at gun shows and flea markets. "Under our proposal, Brady background checks would be required for all guns that are sold at gun shows, even if the gun is sold by a vendor who is not licensed."

Even after he left government, Holder signed on to former Attorney General Janet Reno's amicus brief (PDF) in the case of D.C. v. Heller, opposing the position that the Supreme Court finally adopted: that the Second Amendment to the U.S. Constitution protects an individual right to keep and bear arms. The brief Holder signed explicitly asserted, "The Second Amendment does not protect firearms possession or use that Is unrelated to participation In a well-regulated militia."

After the Supreme Court rendered its pro-individual-rights decision earlier this year, Holder objected that the ruling "opens the door to more people having more access to guns and putting guns on the streets."

But what about enforcement? Can we at least expect a reprieve from the midnight raids by paramilitary squads that have resulted in injury and death for too many minor offenders, police officers and even innocent bystanders?

Don't count on it. After the violent raid by armored U.S. marshals to seize six-year-old Elian Gonzalez from his relatives and return him to Cuba, Eric Holder was one of the Justice Department officials called on the carpet to explain their actions to the U.S. Senate. Holder defended the raid to Tim Russert, despite his earlier denial that the Justice Department would try to forcefully seize the boy in the dark of night, saying, "We waited 'til five in the morning, just before dawn."

Drug warrior, gun grabber and fan of tear-gas-fueled paramilitary raids to resolve child custody disputes. That's Eric Holder, our new Attorney General.

Is there any upside to Holder's nomination?

Yes, there is, though Holder's positives are in areas that are less likely to directly affect most Americans than his negatives. Holder has, thankfully, criticized the Bush administration's affinity for warrantless wiretapping and for the use of torture against terrorism suspects -- or at least the outsourcing of such abuse to countries that have fewer scruples and legal restrictions than the United States. He told the American Constitution Society (video here):

Our needlessly abusive and unlawful practices in the ‘War on Terror' have diminished our standing in the world community and made us less, rather than more, safe.

He also said:

I never thought I would see the day when our Justice Department would claim that only the most extreme infliction of pain and physical abuse constitutes torture, and that acts that are merely cruel, inhuman or degrading are consistent with United States law and policy.

That will be a welcome change from the attitude prevailing in the current administration, though it doesn't completely offset the new almost-AG's distinct downside.

Maybe they should ban private homes, too

As gun rights columnist David Codrea writes in his own take on this issue, "Across the nation, gun sales are up. The cause is attributed to fear over what new citizen disarmament edicts a Barack Obama presidency will bring."

He's right. The New York Times reports, "[s]ales of handguns, rifles and ammunition have surged in the last week, according to gun store owners around the nation."

How much?

Says the Times:

Nationally, rifle and handgun sales surged 17 percent, for example, in May, compared with May 2007, according to Federal Bureau of Investigation figures. That was before Mr. Obama had clinched the Democratic nomination. Sales then fell and were essentially flat by September compared with the year before, even as the campaign heated up, before rising 14 percent in October. November figures were not yet available.

The ultimate boost to retail sales may turn out to be higher. Britain's Sky News reports that one large retailer saw a remarkable jump in purchases of firearms. "Cheaper Than Dirt sold a million dollars in guns in October, more than double the normal amount."

News reports uniformly acknowledge that fears of the incoming Obama administration's attitude towards firearms regulation are behind the workout cash registers are getting in gun shops across the country. While President-Elect Barack Obama has said he agrees with the Supreme Court that the Second Amendment protects an individual right to bear arms, his announced policy proposals suggest a very narrow interpretation of that right. Obama's transition Website, Change.gov, contained the following language before the page was yanked offline [Note: It is still in the Google cache here]:

Address Gun Violence in Cities: As president, Barack Obama would repeal the Tiahrt Amendment, which restricts the ability of local law enforcement to access important gun trace information, and give police officers across the nation the tools they need to solve gun crimes and fight the illegal arms trade. Obama and Biden also favor commonsense measures that respect the Second Amendment rights of gun owners, while keeping guns away from children and from criminals who shouldn't have them. They support closing the gun show loophole and making guns in this country childproof. They also support making the expired federal Assault Weapons Ban permanent, as such weapons belong on foreign battlefields and not on our streets.

Not surprisingly, given the new president's enthusiasm for restoring the so-called "assault weapons ban," military-style semi-automatic rifles appear to be the hottest sellers around the country.

This shouldn't be a surprise. In 1995, after the original assault weapons ban was passed under the Clinton administration, 60 Minutes co-host Leslie Stahl said of the impact of the ban, "it made 1994 the best year for gun sales in a generation and the best year for the sales of assault weapons ever."

This isn't a phenomenon confined to firearms, nor is it specific to Americans. Gay and lesbian couples rushed to marry before voters went to the polls and approved Proposition 8, banning same-sex marriages in California. When the Chinese government hinted that it might cap car registrations in Beijing, sales of new automobiles jumped by 30%.

That suggests a healthy disdain for restrictive laws on the part of people who want to go about their lives in ways that politicians disapprove. What government officials should have learned by now is that the best way to put more of anything into circulation is to suggest that you're going to attempt to use the law to restrict its availability. People will then rush to acquire that which is about to be forbidden.

And we can credibly assume, looking at history, that people rushing to beat a ban to the punch don't plan to give up what they've just acquired once a new law comes into effect.

Wormtown on the cutting edge with proposed knife ban

Politicians in the city of Worcester, Massachusetts -- Wormtown, to those of us who attended college there and ruined our hearing listening to punk bands at Ralph's -- propose to ban the possession in public of knives with blades longer than 1.5 inches. The ban follows a rise in after-hours stabbings among the city's bar- and club-goers from 85 in 2006 to a projected 148 this year. (Strange but true: a popular New England regional band of the 1980s was called Rash of Stabbings.) The idea seems to be that if you forbid the carrying of sharp pieces of metal, the people committing the mayhem will slap themselves on the forehead and say, "Oh hell, I guess I can't commit attempted murder tonight cuz I might get fined for carrying a pocket knife."

If that doesn't strike you as a convincing line of reasoning, that's probably because you're working your brain a bit harder than the members of the Worcester city council. And if you saw that 1.5-inch limit, went to measure your own knives and discovered that the shortest knife in your collection doesn't make the ... err ... cut, you realize that the law isn't just doomed to fail, it's also so overreaching as to cover just about anything useful with an edge.

But the fact that the law is unlikely to deter actual criminals and goes too far is overshadowed by the rationale for posing such a strict ban that's likely to scoop up people going about perfectly innocent business. According to District 3 Councilor Paul P. Clancy Jr:

“We have a zero tolerance for these weapons in our schools and now we need to extend it out into the community,” Mr. Clancy said. “This is an ordinance the council needs to pass. It will make it a safer community for all.”

That's right, the knife ban is based on the same mindless zero-tolerance policies that have sent middle-school kids to jail for writing scary stories and gotten them strip-searched for possessing ibuprofen. Schools have had such excellent results with draconian restrictions on everything from behavior to expression to drugs to weapons that a city is now going to emulate policies that have become standard radio and blog fodder for condemnation and ridicule. Knives are bad, mmmkay?

But some people -- actually, a lot of people -- need knives to go about their jobs, pursue hobbies, or for recreational activities like fishing, camping and hunting. Are they supposed to chew through twine and rope?

Well, I guess that depends on whether the police officer who stops you with an illicit blade feels his spidey senses tingling, or whether his hemorrhoids are acting up, or whether he likes your kind of people.

While some councilors were concerned about the impact of the ordinance might have on those who carry such knives for personal use or recreation, District Attorney Joseph D. Early Jr. assured the councilors it would be targeted primarily at the after-hours bar and nightclub crowds where there has been an outbreak of knife-related violence.

He emphasized that the police would have a lot of discretion in enforcing the law to assure that people aren’t wrongly caught up in its net.

Translation: To find out if it's OK to carry a knife to your job, give it a try. If you end up on the wrong end of an arrest, you guessed wrong!

You know, I have the feeling that DA Early and his buddies are probably pretty safe carrying their cigar cutters to the office, but that the law might be enforced just a bit more stringently against regular folks on the street.

And that's a big problem.

Look, aside from the wisdom of any given rule, to be able to stay on the right side of the law you have to know where that right side begins and ends. A draconian law that is tempered only by the whims of its enforcers means that everybody is subject to arrest if they displease the authorities. That's not the way free societies work.

Ultimately, as we've discovered in our schools, zero-tolerance regimes end up as a free hand given to officials. Laws that insanely restrictive are no laws at all -- they're just absolute grants of power to the people with badges and government paychecks. Stay on their good side, and they'll exercise discretion in your favor; cross them and you're done. Ultimately, under the sort of law contemplated in Worcester, there is no way to stay legal; staying out of trouble requires currying favor -- or entirely avoiding that jurisdiction.

I guess I won't be visiting Ralph's anytime soon.

Who's afraid of Obama the gun banner?

The inevitable rise of President-for-Life Barack Obama will soon unleash his Stalinist hordes to ransack the gun cabinets of the nation and ravish Red America's newly disarmed womenfolk (and menfolk too, I guess, since Obama gets the bulk of the gay vote). That seems to be the nightmare keeping gun-rights advocates awake at nights. On Gunbanobama.com, the NRA-ILA warns that "Obama would be the most anti-gun president in American history."

There's some truth to those warnings. That is, Obama is rather anti-gun. Sure, sure, he says he supports the Second Amendment. But he also endorsed the D.C. ban on handguns. That makes Obama's support for gun rights about as thoroughgoing and enthusiastic as Anthony Comstock's regard for free speech.

But that doesn't mean that America will be disarmed under an Obama presidency, even if that's how the hypothetical new chief executive wants to expend his political capital. For starters, law just doesn't matter as much as people think when it comes to how people live their lives.

Honestly, I come from at least three generations of illegal gun owners in New York City (I now live within the law in Arizona, so don't think you're going to drop a dime, you tattletale). I say "at least" because I don't know for sure about my great-grandfather, but he owned a popular speakeasy. If he didn't keep unregistered weapons, the Sullivan Act would have been one of the few laws he obeyed. In fact, the gun laws are so byzantine and arbitrary that many New Yorkers have stopped trying to comply.

The result? Nobody knows how many illegal guns are in the city, but the most common estimate is two million shared among a population of about eight million. That's far more illegal guns than legal guns.

The city's meddling class likes to blame the black-market trade on looser rules and scofflaw dealers in other states. But even a professional busybody like Mayor Michael Bloomberg should have learned some basic economics from the financial news network he owns. Demand will always find a supply.

That's the case in Germany, where the German police union estimates that the country's 82 million people own twenty million illegal firearms -- above and beyond the legal weapons in private hands.

How can this be? Doesn't Germany have strict gun laws? Well ... yes. But laws are only as good as compliance, and people tend to comply only with laws that don't make them gag. In Gun Control and the Reduction in the Number of Arms (PDF), Dr. Franz Csaszar, professor of criminology at the University of Vienna, wrote in 2000, "Non-compliance with harsher gun laws is a common event." Referring specifically to Germany, Csaszar found, "In Germany the general registration of long guns was enforced in 1972. The existing stock was estimated at between 17 and 20 millions, while only 3,2 million guns have been registered within the legally set period."

Germany's black market keeps the supply of guns flowing, mostly from Eastern Europe, according to the Small Arms Survey, to satisfy continuing demand -- despite the law.

Flipping the bird to gun-banners is a popular game around the world. Csaszar estimated that compliance with Australia's ban on semi-automatic rifles and shotguns may have gone as high as 20%, Canada's ban on "military-style" rifles pulled in from 3% to 20% of targeted guns, depending on the model. When Austria banned pump-action shotguns, only 10,557 were surrendered or registered out of 60,000 in private hands.

What about something closer to home?

In Can Gun Control Work? (Studies in Crime and Public Policy), James B. Jacobs, Warren E. Burger Professor of Law and Director of the Center for Research in Crime and Justice at New York University, wrote:

In Boston and Cleveland, the rate of compliance with bans on assault rifles is estimated at 1%. Out of the 100,000 to 300,000 assault rifles estimated to be in private hands in New Jersey, 947 were registered, an additional 888 rendered inoperable, and 4 turned over to the authorities. In California, nearly 90% of the approximately 300,000 assault weapons owners did not register their weapons.

None of this should be all that surprising. Jacobs points out that many gun control advocates are among the first people to admit that drug laws are unenforceable. As he says, "Does the drug war not cast doubt on schemes for gun prohibition or stringent regulation?" Why should gun laws be different?

What this all means is that if Barack Obama is elected the next president of the United States, and if he's fibbing and plans to seize private guns or seriously restrict the ownership of firearms, he's likely to be about as successful at targeting guns as the government has been at eliminating the use of marijuana in this country. He won't succeed because, if you're a gun owner, you almost certainly won't obey. If you're a gun control advocate, Obama-the-banner will ultimately be left standing with his pants around his ankles because his efforts will have about as much effect on your stubbornly armed brother-in-law as Nancy Reagan's just-say-no scolding had on your college dope habit.

That's not to say that the law can't do damage. It can impose fines, send people to prison and make Americans increasingly hostile toward the government. I won't minimize the damage to lives that implies.

But that's government as usual -- pointless, repressive intrusions into people's lives without actually changing the way people live.

Gotcha! Gun laws snare controversial writer

Prolific writer Peter Manso, author of, among other books, biographies of Norman Mailer and Marlon Brando, has been indicted on a dozen firearms charges by a Massachusetts grand jury and faces years in prison.

Did he brandish a gun in public? Threaten a neighbor with a drive-by shooting?

No, the guns were all stored, quite securely, in his locked and alarmed home. In fact, police discovered the weapons only when they responded to a burglar alarm while the writer was away. Either the guns were in plain view -- evidence that Manso expected no legal trouble for their possession -- or else, as Manso's attorney alleges, "Truro police searched Manso's house illegally while responding to the alarm." (The Times of London reports they were "in a cupboard.")

The mindboggling criminal charges for mere possession of inanimate objects are reported by the Boston Globe as follows:

Manso was indicted on charges of illegally possessing a large capacity weapon (a Colt AR-15 assault rifle), four counts of illegally possessing loading devices for that weapon, three counts of illegally possessing firearms, one count of illegally possessing ammunition, and three counts of improperly storing a firearm, according to a spokeswoman for Plymouth prosecutors.

The most serious charge, illegally possessing the assault rifle, carries a minimum sentence of 2 1/2 years in prison and a maximum of 10 years in prison. No date has been set for Manso's next court hearing.

The main problem seems to be that Manso's Firearms Identification Card expired after the passage of new legislation in 1998 -- previously, FIDs lasted a lifetime; now they expire every six years. The new law has caused endless problems in the Bay State, since authorities have not been very effective about informing gun owners of the change. As the Globe reports, "In July 2002, a State House committee found that thousands of Massachusetts residents were probably unaware that they needed to renew fire identification cards."

The "assault rifle" is a separate issue, since that's just outright illegal in Massachusetts. Still, Manso is in good company in its possession. In Can Gun Control Work?, James B. Jacobs, Director of the Center for Research in Crime and Justice at New York University, reported that Boston's assault weapons ban has enjoyed a rousing compliance rate of about 1%. Challenged by a law that seems purely arbitrary and unnecessarily restrictive (banned assault weapons are mechanically indistinguishable from many perfectly legal firearms), large numbers of Americans simply shrug their shoulders and symbolically tell legislators to go fish.

Of course, heavy-handed law enforcement is nothing new to Massachusetts. When I went to college there in the 1980s (Clark University in Worcester, if you must know), the string of ominous billboards along the highway as you crossed the border was a running joke: Speed Limit Strictly Enforced, Possession and Use of Radar Detectors Illegal, Gun Laws Strictly Enforced ... "Abandon All Hope Ye Who Enter Here" would have been a fitting final warning, followed by a roadblock and a vigorous strip-search.

But a potential decade in prison for merely possessing a mechanical device is more than a joke: it's a deprivation of a man's freedom for doing nothing that caused any harm to people or property.

Manso claims that he's been maliciously targeted by the police because of his controversial work on a new book that casts a skeptical look at the work of local authorities in investigating the murder of a writer named Christa Worthington. I don't know whether there's any truth to his claim, but the sort of technical charges he faces lend themselves to such abuse. The more intricate and technical the law becomes, the harder it is to understand, respect and abide by. It's irresistably tempting for many people to ignore the law's sillier restrictions, and all too easy to unwittingly fall behind in paperwork -- at the cost of years behind bars if a local official wants to be by-the-book about such things.

And, of course, offending local officials then comes to carry a hefty penalty in terms of selective enforcement of arcane law.

Strictly speaking, the recent Heller decision should have made these charges impossible. By finally recognizing that the Second Amendment protects an individual right to bear arms, the Supreme Court ostensibly put the right to bear arms on the same footing as the right to free speech -- and you can't require people to get a license to speak their minds, nor can you ban high-capacity printing presses. But we're still exploring the full implications of that decision, and Heller was worded loosely enough that it may permit restrictions of the sort that we would never permit to be applied to any other individual right.

So Peter Manso faces a potential life sentence (he's 67) for doing no harm to anybody by violating laws that few respect and even fewer understand and thereby making himself vulnerable to officials who may be out to get him.

In a free country, that's not how the law is supposed to work.

Candidate ratings don't reveal much about the next president

With the Democratic National Convention in full swing and the Republicans eagerly awaiting their turn, political silly season has officially commenced. That means it's time for everybody with an axe to grind to rate the candidates' positions on issues near and dear to their hearts. Based on those positions, and by peering into crystal balls and divining the future from the entrails of sacrificial animals, we then forecast the candidates' likely performance in the White House.

There's just one problem with this approach: It's crap.

I've played this game before, myself, assessing presidential candidates' sensitivity to concerns about free speech, privacy, due process, the right to bear arms, etc. for the online publisher that employed me in 1996 and 2000. I skipped 2004, though that year might have proved a bit easier than most.

My 2000 comparison is no longer available online, but I remember digging through the stances taken by Bush and Gore (as well as Harry Browne, Ralph Nader and Patrick Buchanan) and concluding that, when it came to the two big contenders, the difference was more a matter of emphasis than overall impact. That is, Bush might be terrible on reproductive freedom, but he was decent on guns, while Gore sucked eggs on the right to bear arms but supported a woman's right to choose.

But that was before 9/11.

Y'see, all those positions the candidates take mean very little until they've actually been tested and had to make some hard choices. When President Bush was put to the test, it turned out that legal niceties like due process, privacy and the humane treatment of prisoners didn't matter to him much at all. But we had no way of knowing that until he was put in a position to respond to a crisis.

Does that mean a theoretical President Gore would have been better? It's hard to believe that any serious contender for the U.S. presidency would have been worse than George W. Bush, but we'll never really know. After all, in his pre-prophet-of-environmental-doom incarnation, Gore was part of the administration that produced many of the legal proposals that were later taken off the shelf and plugged into the PATRIOT Act.

But Gore was later critical of the PATRIOT Act, so maybe he had second thoughts.

Or maybe not being in power gives you a different perspective than when you're the head honcho.

Candidates can certainly telegraph their future performance, but the message is often mixed -- and we tend to see what we want to see. Woodrow Wilson, whose administration was perhaps the most abusive of individual rights in American history, wrote for decades in favor of greatly expanding the power of the presidency. But Wilson is also known for saying, "Liberty has never come from Government. Liberty has always come from the subjects of it. The history of liberty is a history of limitations of governmental power, not the increase of it."

Which was the real Wilson? We only found out when he started throwing critics of his administration into prison.

Francis Biddle, FDR's Attorney General, remarked as the government was sticking Japanese-Americans into concentration camps, "The Constitution has never greatly bothered any wartime president."

And "war" tends to get interpreted rather broadly by politicians; wars on poverty, drugs and terror can become justifications for nasty actions -- all just for the duration of the "emergency," of course.

With Barack Obama and John McCain, we have two presidential contenders who have served their political careers as legislators -- one person among many. We really don't have the slightest idea how they'll act when placed in positions of executive power. Will the ultimate winner of the White House wield his vast power as an angel or a monster? I suspect that even he doesn't know.

In the days to come, you'll see plenty of ratings of the candidates' stances on a variety of issues, including those involving the preservation of at least a modicum of liberty in this fading republic. But don't expect those comparisons to be much of a guide to how the next president will ultimately behave when put to the test.

Phoenix: Not so free, not so unfree

Phoenix isn't a terrible place when it comes to personal freedom. It's not so great either, despite Arizona's overstated Wild-West reputation.

Reason magazine's Radley Balko raised a fuss in Chicago with his column in the Chicago Tribune taking that city to task for "treating its citizens like children" with a variety of nanny-state interventions into everything from sex laws to booze restrictions to firearms regulations that are designed to turn local politicians' obsessions and bugaboos into punishable offenses.

The full article from which Balko drew, rating 35 cities according to semi-scientific rankings of the various city governments' treatment of personal freedom, is available on Reason's Website. The cities are assessed on the environment they provide for personal autonomy in the areas of: Sex, Tobacco, Alcohol, Guns, Movement, Drugs, Gambling and Food/Other.

Chicago came in dead last, setting itself up for its public excoriation. Las Vegas, with a generally laissez-faire attitude toward matters that draw political and legal attention elsewhere, ranked first.

I note that Phoenix, the metropolitan behemoth of Arizona, ranks a mediocre 14. With its middle-of-the-road status, the city doesn't even rate a full text analysis of its advantages and disadvantages. The magazine merely notes: "If harassment of suspected illegal immigrants were measured in this list, the stomping grounds of Maricopa County Sheriff Joe Arpaio would rank dead last."

I've written plenty about Sheriff Joe's shenanigans, so I can't disagree.

Reason's rankings are a welcome tool for assessing the livability of America's many and various jurisdictions by a variety of criteria. Measures of economic freedom are relatively easy to come by, but attempts to assess local openness to gays and lesbians, personal choice on smoking, drug laws, the ability to defend yourself within the law and other measures of the breathing room to live in a given area according to your own preferences are rare.

In fact, it's interesting to cross-reference, say, the Pacific Research Institute's U.S. Economic Freedom Index (full document here in PDF format) with Reason's rankings. Chicago's miserable last-place personal freedom ranking correlates depressingly with Illinois's overall 46 (out of 50) rank among the states for economic liberty.

Las Vegas, the top dog for personal-freedom, is located in pretty-good twelfth-ranked Nevada for economic liberty.

But the best bargain may be Denver, ranked third for personal freedom, and nestled comfortably in second-place Colorado, for economic liberty.

(Phoenix, ranked a mediocre 14 out of 35 for personal freedom, does a bit better on economics, given Arizona's slot at 11.)

Of course, rankings are only snapshots; you need to see what direction a jurisdiction is going, or you're at risk of moving to a garden of freedom just in time to watch it transform into a gulag. As David Harsanyi notes in Reason's write-up of Denver:

Often the relevant question isn’t where you are but where you’re headed. And Denver, alas, is moving in the same godforsaken direction as the rest of the country. Safety, economic and social “justice,” the children, the environment, the pets (unless we’re talking about pit bulls, a breed banned from city limits)—all of them trump individual freedom. ...

Denver is one of the freest cities in the country? That’s dreadful news for the rest of you suckers.

Oh well. Reason is going to have to repeat these rankings on a regular basis, so we have a better idea of how our homes, current and prospective, fare. It just might be better to stay in a town ranked at 14 that stays at 14 than it would be to move to a burg that starts off good and then slides, heartbreakingly, down the scale.

How tightly can you regulate a right?

The U.S. Supreme Court may have finally recognized the right to bear arms as protected by the Second Amendment, but the D.C. city government seems determined to put the concept of "constitutionally protected right" to the test. Mayor Fenty's wish-list of proposed regulations are certainly preferable to the outright ban on handguns the city imposed for 32 years, but they seem a bit more restrictive than you'd expect to be permissible for the exercise of a right rather than a privilege.

The proposed legislation has four main components:

1. Continues to ban handguns in most places but creates an exception for self-defense in the home. The handgun ban remains in effect, except for use in self-defense within the home. Sawed-off shotguns, machine guns and short-barreled rifles are still prohibited.

2. Requires the Metropolitan Police Department to perform ballistic testing on handguns and makes such testing a registration requirement. The Chief of Police will require ballistics tests of any handgun submitted for registration to determine if it is stolen or has been used in a crime. Also, to serve as many residents as possible, the Chief will limit registrations to one handgun per person for the first 90 days after the legislation becomes law.

3. Clarifies the safe-storage and trigger-lock requirements. The legislation modifies existing law to clarify that firearms in the home must be stored unloaded and either disassembled secured with a trigger lock, gun safe, or similar device. An exception is made for a firearm while it is being used against reasonably perceived threat of immediate harm to a person within a registered gun owner’s home. The bill also includes provisions on the transportation of firearms for legal purposes.

4. Clarifies that no carry license is required inside the home. Residents who legally register handguns in the District will not be required to have licenses to carry them inside their own homes.

You mean D.C. residents won't be prosecuted if they take their locked or disassembled pistols from the living room to the bed room? Oh joy!

Requirements for actually registering that piece of iron you've been stashing (there's an amnesty provision) or plan to purchase are ... convoluted and detailed. For example:

1. Provisions for registering a handgun purchased for self-defense in a District residence.

a. A District resident who seeks to register a handgun must obtain an application form from MPD’s Firearms Registration Section and take it to a firearms dealer for assistance in completing it.

b. The applicant must submit photos, proof of residency and proof of good vision (such as a driver’s license or doctor’s letter), and pass a written firearms test.

c. If the applicant is successful on the test, s(he) must pay registration fees and submit to fingerprinting. MPD will file one set of fingerprints and submit the other to the Federal Bureau of Investigation for analysis and criminal background check.

d. MPD will notify the applicant whether all registration requirements are satisfied. At that point, the applicant returns to the Firearms Registration Section to complete the process and receive MPD’s seal on the application.

e. The applicant takes his or her completed application to a licensed firearm dealer to take delivery of the pistol. If the dealer is outside the District, the dealer transports the pistol to a licensed dealer in the District to complete the transaction.

f. The applicant takes the pistol to the Firearms Registration Section for ballistics testing. When testing is complete, the applicant may retrieve the pistol and take it home.

The proposed rules actually remind me of the current New York City restrictions, which I navigated a decade ago with the help of a hired middleman and a fair amount of money that went to unknown uses (greased palms, I assumed). New York's rules are explicitly designed to discourage gun ownership -- although they just discourage legal gun ownership and leave most folks outside the law.

I would expect New York's rules to be challenged in the wake of Heller, with D.C. to follow if it adopts Fenty's scheme.

Chicago, where you do what you're told

The windy city gets raked over the coals for its poor treatment of personal freedom in a Chicago Tribune OpEd written by Reason magazine's Radley Balko. A taste:

Chicago reigns supreme when it comes to treating its citizens like children (Las Vegas topped our rankings as America's freest city). Chicagoans pay the second-highest cigarette tax in the country, and the sixth-highest tax on alcohol. Chicago has more traffic-light cameras than any city in America (despite studies questioning their effectiveness), restricts cell phone use while driving, and it's quickly moving toward a creepy public surveillance system similar to London's.

Don't miss the multitude of comments attached to Balko's article,  many belonging to two general threads: one applauding the restrictions because they make Chicago more in tune with the poster's values and preferences (my taste, now mandatory); the other pointing out that a heavily regulated city gives the folks in charge unparalleled opportunities for shaking downs folks who violate or want to violate the rules.

The column is based on an upcoming Reason article assessing 35 American cities on how they "balance individual freedom with government paternalism. We ranked the cities on how much freedom they afford their residents to indulge in alcohol, tobacco, drugs, sex, gambling and food. And, for good measure, we also looked at the cities' gun laws, use of traffic and surveillance cameras, and tossed in an 'other' category to catch weird laws such as New York's ban on unlicensed dancing, or Chicago's tax on bottled water."

Chicago, by the way, comes in dead last. Las Vegas is first.

There are plenty of assessments of various jurisdictions' economic freedom rankings, but this is the first I'm aware of  that actually tries to rank cities based on their overall respect for personal freedom. I look forward to seeing the full piece.

A right to bear arms, if you can keep it

I wrote earlier that the Supreme Court's 5-4 decision (PDF) in D.C. v. Heller that the Second Amendment recognizes and protects a pre-existing individual right to bear arms is a "bit weak." I didn't mean that the reasoning is weak -- indeed, it picks up on decades of scholarship about the language, drafting and legal history of the Second Amendment. Linguists, historians and legal scholars had already done the hard work and Justice Scalia eagerly took excellent advantage of their efforts leading to the logical conclusion that the Second Amendment means what it says.

Instead, by "weak," I meant that the right recognized as constitutionally protected by the court is pretty tightly constrained -- relative to what I would have liked to see, anyway. But that "weak" right is better than I feared it might be and stands as a pretty satisfying victory under the circumstances.

Scalia starts off by comparing the Second Amendment to the finite limits of the First Amendment:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Well, all right. But what does that mean?

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26 We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

Those restrictions that Scalia finds consistent with an individual right to keep and bear arms go quite a bit further than any limits we'd consider reasonable on First Amendment rights. It's impossible to imagine the courts permitting bans on the mentally ill or convicted felons speaking their minds about matters of public policy. Nor is it possible to imagine, say, a requirement for background checks or waiting periods on anybody starting a blog passing constitutional muster. And there's no requirement that publishers refrain from using "unusual" or "dangerous" (especially powerful?) media, even in these days of campaign finance "reform."

The court also avoids the question as to whether the Second Amendment is incorporated through the Fourteenth Amendment -- that is, whether it protects Americans not just from federal laws, but also from state and local laws. It seems likely that it is incorporated, but that will have to be definitively established by future litigation.

But the right recognized by the Supreme Court isn't meaningless. For starters, the court finds that Americans have a right to possess handguns in their homes and "a complete prohibition of their use is invalid." It also finds that D.C.'s requirement that rifles and shotguns be stored in an inoperable condition, rendering them useless for self-defense, is unconstitutional. Scalia goes on to write, "the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home."

That means the Second Amendment now means, in terms of law, at least something like what it quite clearly says. That's probably the best we could have hoped for under the circumstances, given the reality of political pressures and the kamikazi passion of opponents of the right to keep and bear arms, even those on the Supreme Court.

Kamikazi passion?

Why sure. Try this on:

Framers used the phrase “the people” in these constitutional provisions. In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.

Similarly, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.

That's Justice Stevens arguing in his dissent that the use of the phrase "the people" indicates a collective right -- even in the First Amendment. In his zeal to prevent the recognition of an individual right to bear arms, Stevens was willing to surrender constitutional protections for individual rights to assemble and to petition the government. Think of it as a constitutional scorched-earth policy, with Stevens tossing long-established rights on the burning barricades.

Even if Stevens' side was destined to lose, the right we got from the court could have been a lot weaker. In a separate dissent, Justice Breyer wrote:

[T]he District’s law is consistent with the Second Amendment even if that Amendment is interpreted as protecting a wholly separate interest in individual self-defense. That is so because the District’s regulation, which focuses upon the presence of handguns in high-crime urban areas, represents a permissible legislative response to a serious, indeed life-threatening, problem.

Such reasoning suggests the outcome that I actually feared in this case: a "right" to bear arms that provided no protection against government action at all.

So, just how vigorous is the protection provided by the Supreme Court's recognition of an individual right to keep and bear arms? We should start finding out soon. The National Rifle Association has already announced plans to file lawsuits on constitutional grounds against restrictive laws in Chicago, some Chicago suburbs and San Francisco.

The Heller decision was only the beginning of a long process of hammering out just how far courts are willing to go in defending gun rights.

The Second Amendment protects an individual right to bear arms

Read the decision here (PDF).

It is a bit weak, but not as bad as I feared. For instance, the D.C. ban on handguns was found unconstitutional.

Gun-rights decision expected tomorrow

With its term winding down, the U.S. Supreme Court is expected to release its long-awaited ruling at 10 a.m. tomorrow in the case of District of Columbia v. Heller. That's 7 a.m. my time, about when I'm making my coffee and trying to minimize the property damage inflicted on the furniture by my son, so I'll have to blog about it a bit later in the day. At issue is not only the constitutionality of Washington, D.C.'s handgun ban, but also the question of whether the Second Amendment protects an individual's right to keep and bear arms, or whether it's just so much wasted ink.

My guess, for what it's worth (not much) is that the justices will issue a decision that recognizes the right to bear arms as an individual one, but one so weakly protected as to permit pretty much every gun control law you can imagine short of an actual door-to-door confiscation. Imagine a First Amendment that permits the registration of printing presses, licensing of journalists and content restrictions on newspaper editorials and you have an idea of what I expect for the Second Amendment.

As I've written before, such a result may actually be more of a win for all but the hardest of hard-core gun control advocate than for advocates of the right to bear arms, because:

Confiscation will be off the table, most outright bans will become impossible, so gun owners will be less fearful of efforts to impose strictures on firearms use and ownership that just nibble around the edges. Gun controllers will probably still have the option of pushing for registration, permits and restrictions on concealed carry -- and they'll have a greater chance of success since the opposition will be less unified and resistant.

Frankly, most gun owners would just hear "the Second Amendment protects an individual right" without hearing the all-important "to do whatever local authorities tell you to do." Gun control would then lose much of its potency as a political issue and many restrictive laws that have been resisted so far would face an easier time of it in Congress and state legislatures.

Yes, confiscation would be off the table, but it was never realistically on the table. In countries where bans have been tried, resistance has been widespread. According to Dr. Franz Császár, a professor of criminology at the University of Vienna, "Non-compliance with harsher gun laws is a common event. In Australia it is estimated that only about 20% of all banned self-loading rifles have been given up to the authorities... Following the restriction in 1983 of certain 'military-style' rifles in Canada, the compliance rate was estimated as between 3 and 20% for different models."

Not surprisingly, compliance with gun bans has been no higher in the United States, where firearms carry heavy political baggage. In Can Gun Control Work?, James B. Jacobs, Warren E. Burger Professor of Law and Director of the Center for Research in Crime and Justice at New York University wrote, "In Boston and Cleveland, the rate of compliance with bans on assault rifles is estimated at 1%. Out of the 100,000 to 300,000 assault rifles estimated to be in private hands in New Jersey, 947 were registered, an additional 888 rendered inoperable, and 4 turned over to the authorities. In California, nearly 90% of the approximately 300,000 assault weapons owners did not register their weapons."

Any reduction in privately owned firearms might seem like an improvement to anti-gun zealots, but as Császár points out, "Stringent gun control changes the profile of the gun-owning population. What ever the reason for keeping guns may be, remaining owners tend to cling even more tightly to firearms. Noncompliance with restrictive rules makes the remaining owners immune against even very reasonable measures of the authorities."

So confiscation would certainly be widely defied and further polarize the country. Really, it's a non-starter.

But less-draconian laws? Registration and licensing laws might be on the table if gun-rights groups lazily declare victory after a weak declaration that the Second Amendment protects individual rights, of if gun owners get complacent. A lot of Americans -- myself included -- wouldn't obey such laws, but there would probably be higher compliance after a weak "victory" on Heller than there would be if the Second Amendment were simply declared a nullity. That is, advocates of individual rights might be better off outright losing this case than sort-of, kind-of winning. That would galvanize resistance to restrictive laws.

But maybe I'm wrong and we'll get a strong decision in favor of an individual right to bear arms. We'll find out tomorrow morning.

Where law ends and resistance begins

Just how susceptible are societies to top-down change, with government using the force of law to impose the preferences of one faction on the unwilling members of another faction? In 2002, an intriguing and underappreciated book was published by Oxford University Press that addressed just that question. Can Gun Control Work?, by James B. Jacobs, Warren E. Burger Professor of Law and Director of the Center for Research in Crime and Justice at New York University, purports to address only the practicality of restricting firearms ownership in the United States, but it really applies to all circumstances in which governments try to impose policies disliked by significant percentages of their subject populations.

Jacobs himself sees the wider application of his book's findings. In the introduction, he writes:

Interestingly, many gun control believers are atheists when it comes to government regulation of mood- and mind-altering drugs. They insist that drugs cannot be kept out of the hands of those who want to use them. They point out that after an investment of many billions of dollars, and the incarceration of hundreds of thousands of individuals, our three-decade-long drug war has achieved few, if any, positive results. Does the drug war not cast doubt on schemes for gun prohibition or stringent regulation?

Indeed, it does. Advocates of gun control would do well to recognize that the failure of drug prohibition is virtually guaranteed to be replicated in the implementation of firearms regulations. Likewise, supporters of gun rights should realize that their zeal for the right to bear arms is paralleled among devotees of the autonomy of the human body and the right to self-medicate.

But the failure of drug laws is already well-documented -- indeed, it's a main feature in news stories that follow the latest drug busts and the ingenuity of drug smugglers, manufacturers and dealers. Have gun laws experienced similar failures that support Jacobs's point?

You bet.

In recent years, several states and municipalities passed laws mandating the registration of assault rifles. These laws were overwhelmingly ignored. In Boston and Cleveland, the rate of compliance with bans on assault rifles is estimated at 1%. Out of the 100,000 to 300,000 assault rifles estimated to be in private hands in New Jersey, 947 were registered, an additional 888 rendered inoperable, and 4 turned over to the authorities. In California, nearly 90% of the approximately 300,000 assault weapons owners did not register their weapons.

After summarizing the history of restrictions and the inherent weakness of the various proposals for registering firearms, restricting sales, banning some types of weapons and otherwise attempting to choke off private ownership of guns, Jacobs concludes:

If black market activity in connection with the drug laws is any indication, a decades-long "war on handguns" might resemble a low-grade civil war more than a law-enforcement initiative.

Well, that's a pretty definitive prognosis on gun control. And, based as it is on the failure of drug prohibition (and alcohol prohibition before that), it would seem to apply to any similar effort to restrict popular practices, substances and possessions. In fact, it's a lesson that anybody with a passing interest in history could learn fairly easily. At least since the Ottoman Empire's doomed efforts to prohibit the use of tobacco, laws that have suffered any real degree of unpopularity among the people subject to them have sputtered and died -- though often leaving strife, expense and ruined lives in their wake.

People, it seems, are remarkably unresponsive to legislation they dislike, even when the penalties for defiance are draconian (the Ottoman sultan, like the Russian czar, actually imposed the death penalty for smokers).

In a few cases, that may not be terribly important to the authorities. Politicians probably don't care that they get nothing approaching full compliance with taxes so long as they squeeze enough money from their subjects to pay for their pet projects and fill their personal accounts. But most laws are rendered ineffective by widespread defiance; worse, from a government perspective, scofflawry demonstrates the impotence of the state.

That should be enough reason to avoid grandiose legislative gestures. Why reveal the ruling regime as relatively feeble and disdained by much of the populace by passing laws that can't be enforced?

But there seems to be a popular delusion that transforming society is simply a matter of wanting hard enough and cleverly crafting legislation that everybody must follow as if it were a law of nature. As Jacobs puts it in the gun control context, "To a large extent, gun control is something that people believe in. It is embraced in principle without attention to practicalities, implementation and enforcement problems, and cost." Inevitably, the gun controllers, like all totalitarian "reformers," are disappointed when their neighbors prove resistant to social engineering.

I'm not troubled that a series of failed prohibitions and restrictions erodes the legitimacy of the state -- that's a beneficial outcome in my view. But the attempt to enforce those laws inevitably results in people fined, imprisoned and killed before the ultimate ineffectiveness of the policy in question becomes obvious to even the densest lawmakers.

For the sake of our liberty, it's a good thing that people are not anywhere near as malleable as politicians and frenzied advocates of schemes for "improving" society would like. It's just unfortunate that the lesson has to be relearned each generation.

Second Amendment decision could have perverse results

The U.S. Supreme Court has heard the arguments (PDF) in the case of D.C. v. Heller, it looks like a majority of the justices are leaning towards an individual-rights interpretation of the constitutional provision that would put the court in accord with most modern legal scholars, and everybody is awaiting the final decision.

But just what result are they hoping for?

The answer appears obvious: Advocates of the right to self-defense want the Second Amendment read as protecting an individual right, while opponents of civilian ownership of firearms want the amendment read as securing the states' right to organize militias, with no provision for individual gun ownership. Right?

Well, maybe. Perhaps the right question is what result should people be hoping for?

Gun-rights supporters certainly should be hoping for an explicit statement that the right to bear arms is protected as an individual right subject to protections equivalent to those provided for free speech. But they're not likely to get such a strong ruling. More likely, they'll get an affirmation of an individual right, but one subject to regulations of various severity supposedly linked to the government's interest in keeping the peace and enforcing laws, but really motivated by a desire to avoid too terribly offending the political powers-that-be.

This result, the likely one, is what gun control advocates should be hoping for -- not an absolute rejection of an individual right to bear arms.

Why?

Because if the Supreme Court rules that the Second Amendment is essentially a nullity from an individual rights perspective, the decision is likely to turn out to be the most effective marketing boost firearms manufacturers and gun rights organizations have ever seen. Panicked by the ruling, millions of Americans -- current gun owners as well as those who have put off firearms purchases -- will very likely flock to buy guns, ammunition and reloading supplies to make more ammunition in the future, just as they did in the wake of the Brady Bill and the now-expired "assault weapons" ban. In 1994, during the days leading up to President Clinton's signing the controversial bill restricting many popular rifles, the New York Times reported:

Although current sales have not approached the buying booms set off by passage of the Brady law on handguns last year or the House's first vote to ban assault weapons in May, handguns and assault-type weapons are selling briskly, gun dealers around the country said.

"Every time they mention the crime bill on the news, people come in," said Cesare Venegoni, assistant manager at Jim's Military Collectibles in Plano, Tex. "A lot of people are afraid they might not be able to have a gun. That fear has prompted them to buy one."

That will probably happen even in the absence of federal legislation to tighten restrictions on firearms ownership, and despite explicit state-level protections for the individual right to keep and bear arms.

Far from surrendering to a ruling stripping them of protection for their right to own the means of self-defense, Americans who prize that most politically charged of rights will dig in their heels and do their best to make the draconian laws they fear unenforceable. They'll become more adversarial toward gun control advocates and the government, and increasingly defiant toward any move they consider a step in the direction of disarmament.

The Geneva-based Small Arms Survey estimates (PDF) that American civilians currently own 270 million firearms. That's already a number far beyond the ability of any government to curtail in a significant way. Any further surge in firearms purchases will just make a mockery of whatever legislation gun-controllers might favor, while undermining support for the government by many Americans.

If, on the other hand, the Supreme Court takes the middle road by recognizing protections for an individual right, but allowing for substantial exceptions and conditions for that right, gun control advocates will get the largest measure possible of what they want. Confiscation will be off the table, most outright bans will become impossible, so gun owners will be less fearful of efforts to impose strictures on firearms use and ownership that just nibble around the edges. Gun controllers will probably still have the option of pushing for registration, permits and restrictions on concealed carry -- and they'll have a greater chance of success since the opposition will be less unified and resistant.

What? That's not enough?

Well, if you're a gun control advocate, that's the best you can hope for. Even in the current climate of a presumed individual right, California's 1989 law requiring registration of many rifles resulted in about 7,000 affected weapons of an estimated 300,000 in private hands in the state being reported to authorities. It's hard to believe that compliance could be lower, but it will be if the Supreme Court strips away protections for the right to bear arms, making advocates of civilian armament feel besieged.

Like it or not, significant changes in the way Americans own and use guns are simply out of the question. The question now is whether we get strong protections for an individual right, weak protections, or an attack on the concept of an individual right that perversely leaves Americans better armed and more divided than ever.

Gun control inevitable? Not likely

An interesting article in the Virginian-Pilot discusses the tendency of many Virginians to respond to incidents like the Virginia Tech shooting by pushing for looser firearms laws and public carry of weapons rather than (as many newspaper editors would prefer) stricter controls or outright confiscation. Jarringly, though, the article includes this peek into the editors' heart of hearts:

Others who have studied the issue think urbanization will eventually swing the pendulum toward more gun control. Out in the country, firearms represent a way of life; in the city, they represent crime. As rural interests lose political power, the strongest gun supporters won't have as much say...

Ah yes, demographic inevitability, the last refuge of political losers.

But that odd little statement is more than an ideological wish-upon-a-star; it's a window into an odd sort of political theology, and a massive misunderstanding of how the world works.

First of all, there's the strange idea that urbanization necessarily dictates a change in attitudes toward guns. Often, that's so, but it's not inevitable. In my experience, the cities of Arizona are as well and happily armed as the rest of the state, and that's true throughout much of the West.

Then there's the peculiar delusion that, even if urbanization does shift attitudes, 50 percent plus one is a form of political alchemy that anoints with righteousness (and effectiveness) any dominant faction's efforts to dictate terms to the minority. Philosophically, the whole idea is suspect; are 49 people really bound to bow down to 51, just because? And practically, history has shown raw majoritarianism to be a non-starter. Minorities that don't want to give up a valued practice, lifestyle or possession simply don't submit to the law. Majorities have, time and again, been thwarted on efforts to raise taxes, ban alcohol, outlaw drugs, criminalize sodomy or otherwise alter the behavior of any significant portion of the population unwilling to be so altered.

But we're talking about guns, so let's look at the success -- or lack thereof -- of gun laws around the world.

In Gun Control and the Reduction in the Number of Arms (PDF), Dr. Franz Csaszar, professor of criminology at the University of Vienna, wrote in 2000:

Non-compliance with harsher gun laws is a common event. In Australia it is estimated that only about 20% of all banned self-loading rifles have been given up to the authorities. ...

Following the restriction in 1983 of certain "military-style" rifles in Canada, the compliance rate was estimated as between 3 and 20% for different models. ...

In Austria in 1995 pump-action shotguns were prohibited. While new acquisition is next to impossible since then, already legally held guns could only be kept on a special permit. Out of an original stock estimated at 60 000 guns, only 10 557 have been either surrendered or registered. As the estimate on imports covers only the last ten years, total legal imports must certainly have been even higher.

Actually, I think Dr. Csaszar is being unduly generous to the Australian government over the success of the 1996 ban. Three years after Australians surrendered 643,000 semiautomatic rifles and pump-action shotguns, Inspector John McCoomb, head of the Queensland Weapons Licensing Branch, publicly admitted defeat.

"About 800,000 (semi-automatic and automatic) SKK and SKS weapons came in from China back in the 1980s as part of a trade deal between the Australian and Chinese governments," Insp McCoomb said. "And it was estimated that there were 1.2 million semi-automatic Ruger 10/22s in the country. "That's about 2 million firearms of just two types in the country."

I very much doubt that compliance surpassed ten percent.

Dr. Csaszar emphasizes, "the effects of changes in legislation which is to reduce the number of already legally owned guns depends on whether the existing stock has been already registered." So, is registration an effective way to go? Can you sidle into tougher laws by first getting an accurate tally of who has what?

Dr. Csaszar again:

In Germany the general registration of long guns was enforced in 1972. The existing stock was estimated at between 17 and 20 millions, while only 3,2 million guns have been registered within the legally set period. In England out of an estimated stock of 300 000 legally acquired semi-automatic and pump-action shotguns, it would appear that fewer than 100 000 have been registered. In Austria the registration of "C" category rifles of EC nomenclature (any type except semi-automatic) was enacted in 1996. It is estimated that between 500 000 and 1 million rifles have been registered, while the existing stock has been estimated at about 2 to 3 millions.

For a more U.S.-specific example, there's a New York Times report on the success of California's 1989 law requiring registration of many rifles.

Nine days before the deadline, thousands of Californians are defying a ground-breaking state requirement that they register their military-style semiautomatic guns. ...

As a one-year registration period draws toward an end on Dec. 31, only about 7,000 weapons of an estimated 300,000 in private hands in the state have been registered. This non-compliance has virtually nullified the first step of a March 1989 law that set the pattern for similar attempts to limit ownership of assault rifles in other states and in Washington.

OK. But most gun control advocates don't favor total confiscation, and they're willing to slowly work their way toward tighter rules. How about ... just making the process of obtaining permits and licensing weapons so annoying that people give up?

Says Dr. Csaszar:

[I]n Austria the costs involved in obtaining a license for "B"-category guns (mostly handguns), including psychological screening and a basic firearms instruction, are already higher than the price of a quite serviceable handgun on the black market. This is a strong incentive for illegal acquisition even without criminal intent. Although no one would doubt the benefits of checking the personal character and the technical knowledge of a prospective gun owner, one invariably has to accept that there are also disadvantages.

The overall effects of such defiance can be impressive. In 2005, the Greek government estimated that the country's 11 million people own 1.5 million illegal guns. Britain's National Criminal Intelligence Service estimates that the country's 60 million people own as many as four million illegal guns. The German police union and the Forum Waffenrecht, a gun rights group, both peg the number of illegal firearms owned by Germany's 82 million people at 20 million.

So we're not just talking about some small criminal fringe defying the law. If Germans hold enough illegal guns to arm every fourth person, it's a sizable chunk of the population that's flouting the law by keeping millions of guns in circulation.

But maybe that's sufficient. After all, some guns are taken out of circulation, some guns are registered, and, we've "sent a message." Is that enough to declare victory?

Well ... enough for what?

Do you just want to reduce the number of firearms in civilian hands? The latest estimate by the Small Arms Survey is that American civilians own some 270 million firearms (PDF). Even assuming that gun control advocates actually do want full-on confiscation (a position I believe to be held only by the hardest of the hard core), the 20 percent compliance rate estimated for the Australian gun confiscation of 1996 by Dr. Csaszar would bring stockpiles down to 216 million guns -- all illegally held by tens of millions of deliberately defiant owners. Is that what's going to make you sleep better at night?

Well ... maybe you want to reduce crime. Will even partial compliance have that effect? Don't count on it. Australia's Courier Mail reported in 2006:

And while legal gun ownership is on the rise, illegal use of firearms is not decreasing, despite an initial decline following the introduction of restrictive laws in 1996.

The latest Australian Bureau of Statistics figures show the number of robberies involving weapons across the nation is the same as it was five years ago.

The number of abductions involving weapons is higher, and while there has been a fall in firearm murders, more than a quarter of attempted murders involved guns.

Bond University criminologist Paul Wilson said: "There are indications guns are being used illegally more than a few years ago, and a stark look needs to be taken into whether firearm laws are losing their effectiveness."

Britain's The Independent had similar news in 2005:

UK gun crime might not rival that of the US, but the problem is frightening and growing. There were more than 10,000 offences in England and Wales involving the use of firearms in 2003-04. Weapons such as Brococks were used in 2,150 offences, an increase of 18 per cent on the previous year.

Also on the rise is the number of victims shot: 440 people were seriously wounded by firearm in 2003-04, up five per cent on the previous year.

Even when handguns were banned, only around 3,000 of the 100,000 believed to have been in private hands before May 2004 have been handed in for destruction. The other 97,000 have disappeared.

That's no shocker. As Dr. Csaszar points out:

[A]fter the reduction in the number of legally held guns it would appear that there is not a comparable decrease in armed crime. This is to be expected, as the guns turned in are usually not the ones involved in crime, and the people who turn in weapons are generally the least likely to commit a crime.

Laws do have effects, but they're not always those intended by their authors. Targeting any group has the effect of putting that group into an adversarial relationship with the government and with law enforcement. Australia's Inspector McCoomb made the point in 1999 that resistance had now hardened among gun owners, saying, "The perception in the shooting community is that 'if you know all about my guns, you'll soon take them all off me'."

And those guns don't remain frozen in place. They're traded and supplemented by smuggled and illegally manufactured weapons. A black market is created or expands, controlled (by definition) by criminals.

A personal note here: Until 1999, when I moved to the very different legal climate of Arizona, I represented the third generation of firearms scofflaws in my family. For over half a century, Tuccilles cheerfully disregarded New York's draconian gun permit and registration laws. My family's outlaw status may have gone back further in time, since I simply don't know whether or not my great-grandfather was armed. The situation reached a pinnacle of absurdity in the mid 1990s when I applied for a New York City pistol permit so I could legally shoot at a range. My background was checked, my fingerprints taken, my wallet lightened -- all while I had an illegal "assault weapon" purchased on the sly stashed in my East Village apartment.

I could only smile one day at police headquarters when, after an extended session of sullen, systematic abuse intended to dissuade all us permit applicants, one man stood up, loudly vowed to purchase a gun illegally, and stalked out of the room.

Amen, brother.

So, will urbanization bring about a shift in public attitudes easing the way for tighter gun control laws?

Maybe.

Will the passage of new and tighter laws be effective?

Only if you want to alienate millions of Americans from the government, increase contempt for the law, breed black markets and, potentially, increase the crime rate.

If I haven't made it clear yet, I don't think that firearms are a special case in this regard. By and large, societies are not the malleable molding clay to be shaped by legislation that "reformers" would have us believe. Societies are more like balloons; squeeze in one spot, and they bulge elsewhere. Whatever your particular cause, reshaping the world you live in solely by the force of law is a thankless, and probably impossible, task.

Even if that spells doom for your particular concern, you might take heart in that lesson. Who wouldn't rather live in a world of stubborn people who insist on making their own decisions, rather than one populated by drones who simply do what t hey're told?

That may mean you don't get to remake the world to do your bidding. But it also means that people who want to remake you won't get their way either.

'Capital murder' for Ryan Frederick

Ryan Frederick, who shot and killed a police officer during a confused, unannounced middle-of-the-night raid on his home that turned up a personal-use amount of marijuana, may be charged with "capital murder" says the prosecutor in the case. That's because Detective Jarrod Shivers was ... umm ... standing in the yard, not breaking through the door at all, contrary to earlier reports. Apparently, that's why Frederick was denied bond.

Radley Balko, who has been following the case, has the lowdown on the authorities' changing story. Read it and catch up before the prosecutor tries to tell us that Frederick actually hunted down Detective Shivers and shot him in the bath.

Lessons for the law-abiding from Greece

Lest night's episode of the excellent Travel Channel show, Anthony Bourdain: No Reservations, brought the boozing, snarky celebrity chef to Greece for overindulgence in local cuisine, booze, music, dance and firearms. Firearms? Yes, not only did Bourdain hunt quail with a shotgun, but an outdoor raki-fueled picnic on Crete featured one of the participants firing his pistol in the air as part of the raucous festivities.

But Greece is supposed to have strict gun-control laws. In fact, Greece does have strict gun-control laws. Shotguns are relatively easy to come by for hunting, but handguns and even rifles are tightly restricted. According to an online posting by a Greek gun owner:

There are generally two ways that one can legally get a gun in Greece.

One is, if your life is in danger, due to your job, social status or functionality, or if you have some good friends in the right places. In that case, you can easily obtain, what is known as a Concealed Self-Protection Carrying Permit (let's call it CSCP, for short). This permit allows you to have only one gun and a very limited amount of cartridges (30 or usually less). Now, if you are allowed to have 30 rounds, you can only fire, let's say half of them for practice. How can a person be trusted to protect his own life with so little practice is of course beyond my comprehension.

The second reason that entitles you to own a firearm, is to be an athlete in a shooting sport. This permit allows you to have more than one guns (usually a 0.22 LR, a 0.32 or 0.38 or 9mm, etc) in order to be able to participate in the corresponding shooting matches. In order to get such a permit, you must be a member of an athletic shooting club for several months, and to have participated in several matches (using either your friend's guns or your clubs guns, if they have any). The club is responsible for supplying you with cartridges you need for your practice sessions and your participation in shooting matches. Of course, this permit does not allow you to carry your gun(s) on yourself. You are only allowed to transport you guns in bags or suitcases to and from the shooting range. For those interested to know I have this kind of permit.

It's unlikely that the fellow on No Reservations was expending his limited legal allotment of ammo for the edification of Bourdain and company, so chances are that at least his ammunition was illegally owned, and it's a fair bet that the gun itself wasn't one familiar to the authorities. Nevertheless, he felt perfectly comfortable popping off rounds in front of a TV crew.

Why? Well, the answer may be found in another part of that Greek gun owner's post:

...there are some areas in Greece, like Crete and Mani, where guns are not that restricted. That does not come from these areas having different legislation that the rest of the country. It is more of a customary habit than anything else, which however is endorsed by some politicians.

OK -- so the festive-minded gunman was probably taking advantage of Crete's traditional nudge-and-wink attitude toward the country's gun laws.

In fact, as of 2005, the Greek government estimated that the country's population of 11 million harbored 1.5 million illegal firearms.

Actually, that's not all that surprising. Americans with an eye toward "reforming" the way things are done in the United States are fond of pointing toward tighter gun control laws in the UK, higher taxes in France or hate-speech laws elsewhere. But while touting the alleged virtues of the rules imposed by other governments, Americans with statute-envy miss an important point: The people of the United States are a lot more likely to actually obey the deficient laws to which they are subject than the citizens of many other countries are to even notice the oh-so enlightened legislation that they enjoy. Greece may have much tighter gun control laws than the U.S., but the descendants of Plato and Socrates clearly take those laws with a very large grain of salt -- and a case of 9mm ammunition.

In many countries, passing laws often seems to be more an exercise in letting eager young parliamentarians vent their elitist frustrations (and satisfy the letter of various international treaties) than an actual effort to change the way life is lived by the majority of people. The laws get passed and the enforcers do their best to make folks obey, but compliance ... well, compliance is another matter.

I'm reminded of a conversation I had with a Flemish law professor in the early 1990s that somehow drifted into a discussion of the apparent willingness of Europeans to pay much higher taxes than Americans. Was it because Europeans really wanted a higher level of services and were willing to pay accordingly?

The professor laughed and told us that he couldn't speak for all Europeans, but Belgians weren't any more eager to pay than Americans -- they just thought they were getting something for nothing. Belgians, he said, all thought they were the best tax evaders in the world. They weren't entirely right about that -- they paid more than they anticipated -- but they held back tax money at a rate undreamed of by Americans.

Taxes are a good place to start when comparing the willingness of different peoples to submit to the law, since they're the easiest laws for which to quantify compliance. Oddly enough, even though compliance should be relatively easy to calculate, official figures are hard to com by. But according to the latest figures, Americans have a roughly 84% rate of compliance with the federal income tax. By contrast, orderly, reputedly law-abiding Switzerland had an estimated tax-compliance rate of about 78% as of 1995 (figures here in PDF format). That's Switzerland, which could be expected to be a model of compliance among Western European countries. (As for that professor's beloved Belgium ... Time says "tax evasion is a national sport" in the country.)

America's myth of rugged individualism runs up against its surprisingly law-abiding nature as compared to the countries from which its citizens originally came.

Of course, America's law-abiding nature evolved in a climate of relatively light-handed governance and stable institutions. While Europeans groaned under authoritarian monarchs, totalitarian regimes and unrestrained majorities, the United States enjoyed a comparatively hands-off approach. Since most laws made sense or, at least, weren't terribly objectionable, it was easy to obey them and assume that the neighbors should do the same.

Not that Americans have been sheep. When something particularly nasty, like Prohibition, came around, non-compliance became, pace Belgium, a national sport.

But American government is no longer so light-handed. Rules proliferate like weeds -- smoking bans, light-bulb prohibitions ... and, of course, gun laws and higher taxes. Laws no longer seem so easily tolerated as they once were. When laws become too numerous, intrusive and overall objectionable, it's unlikely that they'll long command the respect and obedience of the people subject to them.

I'll lay odds that, before too long, the United States will soon be a place where breaking the law in front of a TV camera seems as reasonable to the average person as it was to Anthony Bourdain's Greek host.

Too honest

This is why acting like a boy scout with the powers-that-be is not a good idea.

Technology and the abortion debate

Abortion isn't about to go away as a contentious issue any time soon, but the the controversial procedure is losing much of its vulnerability to public protests and political intervention because of long-anticipated changes in technology. Says the Washington Post:

The French abortion pill RU-486, on the market since 2000, has become an increasingly common alternative, making abortion less clinical and more private. At a time when the overall number of abortions has been steadily declining, RU-486-induced abortions have been rising by 22 percent a year and now account for 14 percent of the total -- and more than one in five early abortions performed by the ninth week of pregnancy.

Where once abortion meant identifiable providers and centralized clinics that could be targeted for protests and public shaming -- or more-violent reactions -- now the procedure increasingly involves discreetly obtaining a drug from a wider pool of physicians who don't need to acquire the specialized training and equipment required for performing a surgical procedure. As one patient quoted in the article reveals:

"It was something I could do at home and be with my husband," Gilbert said of taking the pill. "It was a decision we made together alone, and we were able to take care of it this way alone. It was just a much more private affair."

She added: "I wouldn't say it was easy -- it's never easy to terminate a pregnancy. But in the grand scheme of things, it was much more pleasant than a surgical procedure."

The shift in the way abortions are performed may just be starting, since, in some European countries, "more than 60 percent of abortions are performed with the drug."

None of this is likely to change the moral and political debate over abortion, of course, but it is an illustration of how advances in technology can help to make even the most controversial practices more accessible and less susceptible to public scorn and political shifts. Indeed, the easier abortions are to obtain without walking a gauntlet of protesters or traveling far distances, the more widespread they're likely to become.

Whatever your opinion on abortion itself, there's a lesson here on how to entrench any controversial practice or product by improving the ease with which it can be obtained and by dispersing the practice or product to a multitude of relatively unidentifiable sources.

Imagine, for example, what reducing the production of firearms to an easy and practically automated home workshop activity can/will do to the debate over gun control. To a certain extent, that has already happened, but advancing technology promises to put production in the hands of even the least skilled tinkerers.

Technology can't settle debates over right and wrong, but it can make those debates somewhat pointless.

Gun rights by the bay

San Francisco, where freedom is OK as long as it involves marijuana, but not firearms, lost its bid to ban handguns and ammunition.

On Wednesday, a three-judge panel of the California Court of Appeal upheld a district court decision, which found that the ordinance was pre-empted by several state laws, one of which prohibits cities from restricting handgun possession in an individual's home, business, or private property.

"These laws of statewide application reflect the legislature's balancing of interests -- on the one side the interest of the general public to be protected from the criminal misuse of firearms, on the other, the interests of law-abiding citizens to be able to purchase and use firearms," the panel wrote in its unanimous decision.

"When it comes to regulating firearms, local governments are well advised to tread lightly."

City officials may appeal -- which would be a commendable sentiment if they were trying to expand liberty instead of restrict it.

Good neighbor policy

Now that cloning of humans is becoming an increasingly likely prospect, I have an important question: Can I get a copy of Joe Horn to move in as my next-door neighbor?

Horn is the Pasadena, Texas, resident who called 911 when he saw two burglars breaking into his neighbors' home. While he stayed on the phone with a 911 operator, the burglars ransacked the house. After long, painful minutes of waiting, with no sign of the police, it looked as if the burglars were going to make good their escape. Horn told the operator that he was going out to confront the burglars with a shotgun. That's exactly what he did. The burglars ended up dead.

A few of the usual ninnies are whining about how terrible it is that Horn shot criminals over "mere" home invasion and property. Asks one letter-writer in the pages of the Houston Chronicle, "Does not human life trump some cash, or an iPod, in Texas?."

Well, no -- at least, it shouldn't. When we're talking about thieves caught in the act, we're talking about people whose lives are worth less than lint. I certainly wouldn't execute them once they've surrendered and been taken into custody, but when they attempt to escape, as these two did when confronted by Horn, shooting them is perfectly justified -- and a step toward neighborhood beautification.

Yep, when the science is perfected I'll be first in line for a Joe Horn clone to install next door.

Digging for the roots of the Second Amendment

Just a few words, but they cause so much debate:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Second Amendment to the U.S. Constitution seems clear enough to the casual reader--the amendment means what it says, and protects the right of Americans to own and carry weapons. But, for decades, most politicians and legal scholars either ignored those few words, or claimed that, somehow, they only referred to the power of states to maintain National Guard units. To most folks, that seems an odd reading, but it was the prevailing point of view of the people in power through both Democratic and Republican administrations during much of the 20th Century.

Now the tide seems to have turned once again in the debate over the meaning of the allegedly confusing Second Amendment. In two separate cases: first, United States v. Emerson, and later (and more importantly) in Parker v. District of Columbia, two federal appeals courts have held that the Second Amendment does, in fact, protect the rights of individuals; the decision in Parker actually found Washington, D.C.'s gun ban unconstitutional under that apparently commonsense reading of the amendment's language.

So, what has happened to change the legal landscape so thoroughly? Scholarship! Lots and lots of legal and historical scholarship have tremendously strengthened the argument that the Second Amendment is important to individual rights after all. In Search of the Second Amendment, an important documentary by lawyer and best-selling author David T. Hardy, details the recent findings of a generation of legal scholars and historians--and some of the important uses to which Second Amendment rights have been put to defend other important rights, such as life, liberty and property.

Unfortunately, there are a couple of bumps in the road that might prevent
In Search of the Second Amendment from reaching as wide an audience as it should. Most importantly, Hardy should either have hired a professional sound engineer or else fired the one he did hire and brought in new talent. The audio varies in quality from interview to interview and is so garbled as to be nearly unintelligible in one segment in which Hardy himself appears. The sound problems distract the viewer from the meat of the documentary.

The other problem is that the film wanders a bit during a panel discussion sponsored by the American Enterprise Institute. Hardy probably included the material to further cement the case for the Second Amendment as a protector of individual rights through the testimony of some truly heavyweight legal scholars, but he risks losing his viewers. My wife, who is perfectly capable of chewing her way through medical journals, complained that this material was unfocused and dry.

But that may be the risk you take when you set out to counteract decades of bad assumptions with good scholarship. Watching an intellectual case being built may not woo a mass audience away from its affection for American Idol, but it's edifying viewing if you have any interest in history--especially if you are interested in the cultural and political factors that played such a large part in the evolution of the legal structure with which we live today.

Hardy takes the viewer from the original Englishman's duty to be armed through its transformation by intellectual ferment and political tumult into a right to be armed and that right's transplantation to the fertile soil of the American frontier. From there he describes colonial-era treatment of the right to bear arms, British challenges to that right in the days leading up to the Revolution, and, of course, the painstaking crafting of the Second Amendment during the heated debate over the adoption of the new federal Constitution.

From there, the documentary traces the odd sources of the once-prevalent belief that the Second Amendment had nothing to do with individual rights. Basically, the claim seems to have been invoked from thin air by a few politicians and jurists who (apparently deliberately) misstated holdings by earlier judges and authorities and then cited each other's opinions as proof of their position. The Kansas Supreme Court played an especially contemptible role here--before later carefully brushing the offending opinion under a figurative rug and returning to the individual rights position.

The Fourteenth Amendment comes in for extensive treatment by Hardy because of the explicit intent of its authors to extend the protections of the federal First and Second Amendments to black Americans victimized by racist state officials in the wake of the Civil War. Unfortunately, as the documentary describes, the Fourteenth Amendment has largely been gutted by subsequent court decisions.

The most effective part of the documentary may be the segment describing the use of firearms by blacks and white civil rights activists to defend themselves during the dangerous days of the civil rights movement in the 1950s and '60s. The accounts add an emotional impact to the otherwise scholarly film.

Through it all, Hardy relies on a convincing mix of original documents and interviews with scholars, including law professors, historians, criminologists and activists. Step by step they build an unimpeachable case for taking the Second Amendment every bit as seriously as the First or the Fourth.

Overall, In Search of the Second Amendment is an excellent and important piece of journalism that summarizes scholarship done largely out of the public view in a way that's interesting and accessible. At $24.95 plus shipping and handling, it's an affordable and worthwhile addition to the home library, to be pulled out whenever Uncle Ed starts spouting off about collective rights of the National Guard.

Maybe David Hardy can improve the audio quality of the documentary to match its intellectual impact when he updates the material to reflect the very recent Parker decision.

The documentary's official Website, where the DVD can be purchased, is here.

Drop that sketch!

When I was a kid, I whiled away many painful hours in boring classes by drawing in my notebooks. Since I was a fairly typical boy, these sketches largely consisted of bloody depictions of combat, with every variety of weapon and atrocity penned with painstaking detail in the margins alongside my social studies notes.

If I were a student today--especially if I attended Payne Junior High in Chandler, Arizona--I'd be screwed.

Two students were suspended by school officials at that school over a sketch of a gun. That's right--a drawing. No threats were involved; there apparently wasn't even any of the imaginary gore with which I littered my school papers. It was just an artistic depiction (rendered with an unknown degree of talent) of a weapon.

But, oh yes, it violated the school's infantile zero-tolerance policy, which states that "possession or threatening use of any weapon, real or simulated, is strictly prohibited."

I guess that a sketch of a gun could be interpreted as possession of a "simulated" weapon--by a rules-bound idiot. I guess it's a good thing neither of those suspended kids had the nerve to tote a pocket knife--like my friends and I did through much of our school career.

Call the Chandler Unified School District to tell the folks there that you can hear the wind whistling through their empty heads.

Main number: (480) 812-7000
Community relations: (480) 812-7650
Community relations email: locke.terry@chandler.k12.az.us

Turning garbage into guns

Have you ever fantasized about taking advantage of one of those "gun buybacks" that trade cash or credit for old scrap guns and using the proceeds to buy yourself a shiny new boomstick? Well, somebody did--in spades.

Read the full story. It's a hoot.

Anti-gun shenanigans

I'll agree with Rep. Ron Paul on this--the gun control bill making its way through Congress is, in fact, "a flagrantly unconstitutional expansion of restriction on the exercise of the right to bear arms."

By itself, the bill is no great shakes. It tightens existing restrictions by firming up reporting requirements to make it easier for government folk to know who is legally disqualified from purchasing firearms.

The legislation approved Wednesday would require states to automate and share disqualifying records with the FBI's NICS database. The bill also provides $250 million a year over the next three years to help states meet those goals and imposes penalties, including cuts in federal grants under an anti-crime law, to those states that fail to meet benchmarks for automating their systems and supplying information to the NICS.

The bill, then, builds on the contemptible Gun Control Act of 1968, which put into place many of the modern violations of the individual right to own, buy, sell and carry weapons. The new measure would just tighten the shackles by a few turns.

That the National Rifle Association supports the current bill is just further evidence that the NRA, far from being a pro-liberty organization, is really just one of the more moderate members of the gun-control lobby.

The best response to intrusive regulation is a healthy underground market. Transactions conducted outside the law have a much better chance of preserving and extending freedom than those conducted under the watchful eyes of our would-be masters. Stay armed, folks, and keep your guns unregistered.

Armed America

Some years ago, when I ran the civil liberties site for About.com, I had the peculiar pleasure of reviewing a book about the history of firearms in America. The book was written by a historian named Michael Bellesiles and ... well, that's probably all you needed to know. The fate of Arming America and its author made headline news. Repudiated by its publisher, condemned by scholars as a work of fraud, and stripped of its awards, the book now ranks alongside Clifford Irving's "authorized autobiography" of Howard Hughes as embarrassing hoaxes that briefly fooled the publishing industry and some credulous reviewers. Bellesiles himself was forced to resign from his professorship at Emory University.

I'm happy to say that I wasn't one of the reviewers who was taken in. I had early doubts about the book, though I didn't have the scholarly background to say outright that Bellesiles was wrong in his claims. I just thought the book was excessively ideological and belabored minor issues to make anti-gun-rights political points that didn't seem appropriate for a work of history. To do a decent review of the book, I contacted somebody who knew a lot more about the subject than I did: a fellow named Clayton Cramer.

As it turned out, Cramer had been digging into Bellesiles's research for several years. He cited me chapter and verse about problems with Arming America--problems that started coming out in scholarly papers and newspaper articles with much wider circulation than I had with my Website. I'm proud, though, that I was a small part of the wave of criticism that eventually sank Bellesiles's fraud.

Anyway, all of this is a long-winded and roundabout way for me to say that Clayton Cramer now has his own book out about the history of firearms in America: Armed America. The book covers much of the same ground as Bellesiles's work, although it comes to very different conclusions--finding that firearms were actually very common in early America.

I've only just started Cramer's book, but I find it interesting and certainly free of the red flags I saw in the other work. I look forward to finishing Armed America and posting a complete review.

Creeping control

I see the busybodies at the Bureau of Land Management have their skirts in a bunch over recreational shooting on government land. Specifically, they want to ban recreational shooting at the Ironwood Forest National Monument in southern Arizona. The proposal to ban target shooting appears in two out of four strategies that fall under the monument's proposed resource management plan--including the BLM's preferred Alternative C.

In the plan, the BLM justifies the proposed ban by claiming, vaguely, that target shooting poses a risk to people engaged in dispersed recreation on the monument's 129,000 acres. In an interview with The Arizona Republic, monument manager Patrick Madigan insists that the real problem is shooters who plink at saguaros or who are little more than well-armed litterbugs. "People are bringing their trash out and shooting their trash, or they shoot someone else's trash," said Madigan.

Now, anybody who shoots knows that there are, in fact, meatheads who see every tree and rabbit as a potential bullseye, and who seem to own an endless supply of old TV sets to shoot and abandon in the forest or the desert. These people make up a small, but disproportionately visible minority of shooters, most of whom pride themselves on leaving their shooting range looking much as they found it. Unfortunately people who pick up after themselves are simply not as noticeable as folks who leave a mess.

But other recreational activities are equally plagued by subsets of jackasses. Most backpackers are responsible types who police their campsites and douse their fires; A few leave trash scattered behind them on the trail and a very few can't light a match without torching old-growth forest. Most mountain bikers are solid citizens who stick to established trails; a few carve endless pathways across fragile environments and spook hikers and horseback riders.

If you're going to base policy on the conduct of the minority of jerks, you're going to end up banning public access to the outdoors--or trying to anyway.

But BLM officials aren't talking about cracking down on all recreational activities; they've rested their crosshairs on target shooters alone. They've even exempted hunters from the proposed ban, with no evidence that hunters are immune from the meathead element that plagues other outdoor uses.

That's why I suspect that the ban is a test balloon for a more comprehensive ban on shooting on public land well beyond the boundaries of the Ironwood Forest National Monument. Government officials have never been terribly comfortable with armed civilians, so picking on litterbugs who happen to shoot at this one national monument could well be a test run of a strategy for squeezing responsible shooters off of federal land everywhere. Hunters are left out of the ban to divide the opposition--an old tactic that works often enough to keep it alive and well. I would guess that, if the ban passes with a minimum of opposition, hunters would be added at a later date.

But again, every recreational activity draws its share of idiots who can be used to smear other practitioners through guilt by association. If shooters can be pushed off of public land, so can enthusiasts of any other activity that draws the disfavor of the current crop of government bureaucrats. Dirt-bikers and ATV-riders aren't exactly loved by government land-managers; they're already under attack and would make easy targets for a future ban.

And it doesn't necessarily stop there. There really are people who want to make the wilderness off-limits to humans. Do you think the same people who can turn litterbugs into grounds for banning shooters could maybe point to firebugs as reason for booting backpackers out of the forests?

Better to head this nonsense off early than to have to fight a bigger battle later.

You can contact the BLM at: AZ_IFNM_RMP@blm.gov

Or you can write to:

Mark Lambert
Project Lead
BLM Tucson Field Office
12661 E. Broadway Blvd.
Tucson, AZ, 85748

Second Amendment surprise

Like a man slapped in the face with a trout, the New York Times has finally noticed that the Parker v. District of Columbia Second Amendment decision was based on a whole lot of constitutional scholarship. And--gasp--many of the scholars supporting the individual right to bear arms are liberals!

Good kid, bad officials

This from Rogersville, Tennessee:

A good kid made a bad decision Wednesday at Cherokee High School that will land him in alternative school for the remainder of his high school career, school officials said.

As a result of a search in the school parking lot Wednesday morning, school officials found a shotgun in the vehicle of CHS senior Justin Tyler Luster, 18, 1430 Beech Creek Road, Rogersville.

Aside from closing out his high school career in alternative school, the Hawkins County Sheriff's Office charged Luster with carrying a weapon on school grounds.

Hawkins County Director of Schools Clayton Armstrong was quick to point out Wednesday that there was no threat to students at school, the shotgun was never in the school building, and Luster had no ill intentions for the shotgun.

Apparently Luster was planning on going turkey hunting after school and had the shotgun hidden out of view in his vehicle.

So, let me get this straight. The shotgun was unloaded, locked in the kid's car, and clearly intended for an innocent use, and Luster is said to have made a "bad decision?" School officials are willing to simultaneously admit that they know that Luster had no ill intentions, and also to punish him severely?

Actually, school director Armstrong says he could have expelled Luster, so he apparently thinks he's being merciful.

This is what you get with mindless zero tolerance policies. You start with a rule that is already unnecessarily restrictive, such as a ban on possessing firearms on school grounds, even when unloaded and locked in your own vehicle. You then apply the rule robotically, even to people who very clearly intend no harm to anybody. Presto! Innocent people are subject to suspensions, expulsions and criminal prosecutions.

And when officials are faced with clearly unjust results as a consequence of their rules, they simply roll their eyes heaven-ward and plead that they have no discretion--under the rules they themselves established to escape the torment of exercising intelligent judgment.

We can only hope that Justin Luster comes through his encounter with knee-jerk officialdom relatively unscathed, and with a healthy disrespect for authority.

Do us all a favor. Call Director of Schools Clayton Armstrong at 423-272-7629 x110 and tell him he's a weasel.

When playing by the rules makes no sense

The mass-murder at Virginia Technical University makes explicitly clear something that many of us had known all along: People are at their most vulnerable in those places that pride themselves on disarming residents and visitors. I think it's time that those of us who care about our safety stop being so solicitous of rules that put us at risk.

As I write, I'm in the comfortable position of residing in a state that has a relatively liberal concealed-carry law, and that is very accepting of open carry of firearms. Where I live, it's common to walk into Wal-Mart and see people strolling around with guns strapped to their hips. Nobody bats an eyelash.

But I carry a gun much less frequently here than I did when I lived in New York City where doing so is essentially forbidden.

In New York, I felt a sense of danger that I've never encountered in Arizona. The crime rate was high, I lived in a borderline neighborhood (Avenue B in the East Village -- since gentrified) and I worked the night shift for part of my residency there. I've never believed that the government has the right to disarm me, and I adhere to the pragmatic belief that it's better to be tried by 12 than carried by six. As a result, I almost always had either a pistol or a knife (or both) in my pocket as I traveled the streets of the city.

I actually pulled the pistol once, late at night on Avenue B. Two guys on the otherwise abandoned street made straight for me, cutting across the avenue at an angle. I pulled my gun and backed up. They both raised their hands and laughed. One said, "you got us!" Then they walked off.

Make of it what you will.

All of this time, of course, I acted in complete violation of city and state law. Had I been caught, the authorities would, no doubt, have thrown the book at me--they certainly did to other people in similar circumstances. It was a balance of risks; I felt that carrying a gun was a risk worth taking.

For students at Virginia Tech, carrying a gun is a balance of risks, too. The school has a policy against carrying weapons, despite state law allowing concealed carry for people who submit to the permitting process. the school has a track record of punishing people who violate its rule. So there's a risk inherent in carrying a gun in violation of school policy.

But if somebody had flouted that policy on Monday, a lot more people might have survived the day.

That's because criminals, whether mass murderers like Cho Seung-Hui, or simple street criminals of the sort that confronted me on Avenue B, never even consider abiding by policies against weapons. Such policies disarm only potential victims, not the people who prey on them.

Many people of a libertarian bent will agree with me that government officials--including the administrators of public universities like Virginia Tech--have no legitimate authority to restrict the rights of individuals. Laws against carrying a gun might carry risks for violators, but they are morally null and void.

But what if Virginia Tech was a private school? Many liberty-minded folks tell us that private parties have a right to set the conditions for use of their facilities; you either accept the conditions or go elsewhere.

In an abstract sense, I think that argument is correct. But I think it runs up against concerns about privacy--and triviality--that rightly keep us from applying the same principle to other areas of life.

If you stop by the home of a militant anti-smoker, for instance, you're certainly not going to light up in her living room--that would be rude. But you're unlikely to empty your pockets of smoking materials and lock them in the glove box before crossing the threshold. You respect your host's right to regulate behavior in her home, but you probably don't think that you should bother to extend your consideration as far as what you have lying inert in your pockets.

Likewise, if you visit the offices of a vegetarian organization, you're probably not going to start chewing on a piece of beef jerky in the reception area. But you're unlikely to trouble yourself over your leather belt or the ham sandwich sitting uneaten in your briefcase. You're not shoving these items in your hosts' faces, so even though they may be technical violations of house policies, they're not worth fretting over.

So why the big concern over carrying a gun where they're not welcome?

Guns have been stigmatized of course. But that's a political consideration. Objectively, there's no reason to treat them differently than an errant stogie or a ham sandwich. You shouldn't target shoot with a pistol where it's unwelcome, but I see no reason why you should unholster a weapon where it's officially proscribed any more than you should empty your pockets of other personal items just to satisfy a host's intrusive fetishes.

Besides, unlike a gun, a stogie or a ham sandwich is unlikely to save your life.

In the wake of Virginia Tech, we still have to balance the risks we face when we violate oppressive rules. But we don't owe those rules any special deference.

Grim news

The news from Blacksburg, Virginia, couldn't be worse. A lone man apparently went on a rampage and killed 30 people before he either killed himself or was shot by police.

Trying to draw lessons from a savage amok attack like this is often pointless--dedicated killers will always find a way to arm themselves and attack their victims. But I can't help but contrast this situation with the 2002 shooting at the Appalachian Law School, which ended when two armed students drew their weapons and disarmed the shooter.

My understanding is that Virginia Tech University doesn't allow its students to carry weapons. I sincerely wish at least one student had defied that rule.

Webb's Second Amendment moment

I expect that Phillip Thompson, a "top aide" to Senator Jim Webb, will escape the mini-scandal surrounding him with little more than a warning. His "crime" -- carrying a pistol without a license and possession of an unregistered firearm and ammunition in gun-phobic Washington, D.C. -- seems to have been inadvertent. More importantly, he has Senator Webb -- the apparent owner of the gun and ammunition -- in his corner, making sure that the legal difficulties that befall little people don't ensnare a trusted political operative.

But while he's getting his aide off the hook, Webb might want to consider that a potential political plum has fallen into his lap. First of all, the incident demonstrates that Webb is not
as hostile to firearms as some of his Democratic colleagues. At the very least, he thinks that he should be able to own them. Now he needs to demonstrate that he extends that same consideration to the rest of us.

He's off to a good start. In a profile shortly after the election, Bloomberg columnist Andrew Ferguson described Webb as "an absolutist on Second Amendment rights -- the right to keep and bear arms." In an interview last year for the Daily Kos blog, Webb said:

I support the Second Amendment, for many of the same reasons that I am more "liberal" on social issues. I believe the power of the government should stop at my front door, and that I should have the ability to protect myself and my family.

Now he's a senator and it's time for Jim Webb to show he means what he says. He could publicly regret his aide's violation of D.C.'s gun laws, but then (after Thompson is off the hook) point out that the problem is with the law -- not with an individual transporting a firearm. He should make it clear that nobody -- not just politically connected apparatchiks -- should run afoul of the law for owning the means of self defense.

Webb could endorse the decision in Parker v. District of Columbia, and call on the Supreme Court to affirm the reasoning adopted by the court of appeals.

Basically, Webb could use this incident to put himself on the side of individual liberty -- at least so far as the right to bear arms is concerned.

Of course, doing so may cause some friction with his Democratic colleagues. The question is whether he's really the man of principle he claims to be, or whether he's just another ambitious politician.

More on Parker v. District of Columbia

After rereading what I wrote, I think my original take on the Parker v. District of Columbia appeals decision (full PDF file available here), which overturned some of the capital city's more-severe gun restrictions on Second Amendment grounds, underplays the importance of the decision. After all, this was the first federal court decision to overturn limits on the right to bear arms because such limits are unconstitutional. That's a big deal.

I continue to believe that the decision was a moderate one. While recognizing that the Second Amendment protects individual rights, the court left the door open for fairly intrusive regulation of those rights, including such controversial and potentially dangerous requirements as gun registration, which many liberty-minded people would never obey. That's a far cry from wiping away the nation's gun control laws, since few jurisdictions impose restrictions as draconian as those enforced in the District of Columbia, which amount to outright abrogations of individual rights.

But while the court's decision was moderate, it stands in stark contrast to a history of immoderate positions taken by government officials, including judges. After decades of bogus claims that the Second Amendment protects only a collective right of the states to organize militias, and that it is nothing more than an archaic artifact, since the National Guard replaced those militias, it's nothing short of revolutionary to see a federal appeals court rule that the Second Amendment means what it says.

The decision is likely to have an effect only in those few places -- D.C., New York City, Chicago, etc. -- that go beyond regulating the right to bear arms to explicitly preventing its exercise. And it will only have an effect in most of those places if its reasoning is adopted by other courts of appeal, or if the Supreme Court endorses the D.C. court's position. In most of the country, laws are less restrictive than the court would allow, and an individual right to bear arms is implicitly assumed by local lawmakers.

In fact, the D.C. decision may strengthen the hand of gun-controllers in an odd way. By taking absolute bans off of the table, the decision may alleviate the concerns of millions of gun owners who have, so far, seen every restriction as a step toward ultimate confiscation. Restrictions are more palatable to many people when they know those restrictions can only go so far and no farther.

It's enlightening, therefore, to see the howls of outrage coming from fans of gun restrictions. For example, a Brady Campaign press release complained: "By disregarding nearly seventy years of U.S. Supreme Court precedent, two Federal judges have negated the democratically-expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted thirty years ago and still strongly supports."

But the only laws taken off the table by the appeals court are explicit bans on firearms. That makes it wonderfully clear that the Brady Campaign isn't about restricting guns so much as it's about completely disarming people -- the law-abiding ones, that is.

If nothing else, the appeals court decision really put everybody's cards on the table.

D.C. just got a little more livable

The folks who would disarm us all and leave us at the mercy of criminals -- and at the mercy of the authorities who are not always much better than the criminals they supposedly oppose -- took a shot to their figurative groins on Friday, March 9. That's the day the United States Court of Appeals for the District of Columbia Circuit ruled that D.C.'s severe restrictions on keeping firearms for self-defense violate the U.S. Constitution, and in the process further reinforced the already strong foundations of the school of thought that holds the Second Amendment to be a guarantee of the individual right to bear arms.

The case of Parker v. District of Columbia (full PDF file available here) was brought by a half-dozen residents of the nation's capital in protest of the city's all-but-explicit ban on owning handguns and its tight controls on long guns that effectively preclude their use for protecting life and property. As the court summarized their argument:

Essentially, the appellants claim a right to possess what they describe as "functional firearms," by which they mean ones that could be "readily accessible to be used effectively when necessary" for self-defense in the home. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District's authority per se to require the registration of firearms.

The plaintiffs lost their case at the district level, but won a rousing victory on their appeal in a decision that reads like an in-depth summary of modern Second Amendment scholarship. The majority on the appeals court effectively dismantled arguments that the Bill of Rights's most controversial provision protects some sort of a vague "collective right" of the states to maintain militias. They pointed out that attorneys for D.C. were essentially arguing that the Second Amendment was no longer a relevant document.

But because the District reads "a well regulated Militia" to signify only the organized militias of the founding era—institutions that the District implicitly argues are no longer in existence today—invocation of the Second Amendment right is conditioned upon service in a defunct institution. Tellingly, we think, the District did not suggest what sort of law, if any, would violate the Second Amendment today—in fact, at oral argument, appellees' counsel asserted that it would be constitutional for the District to ban all firearms outright. In short, we take the District’s position to be that the Second Amendment is a dead letter.

The majority pointed out that, contrary to the District's assertions, the Second Amendment was worded to protect "the people" in the same way as other parts of the Bill of Rights that have long been recognized as shielding individual rights.

In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right—"the people." That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”—indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between "the people," on the one hand, and "the states," on the other. The natural reading of "the right of the people" in the Second Amendment would accord with usage elsewhere in the Bill of Rights. ...."

"Every other provision of the Bill of Rights, excepting the Tenth, which speaks explicitly about the allocation of governmental power, protects rights enjoyed by citizens in their individual capacity. The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well."

In a nod to the revolutionary origins of the United States, the court's majority acknowledged that the right to bear arms is not just essential, but a fundamental out-growth of the individual right to defend one's self against all threats -- including out-of-control politicians and bureaucrats.

The pre-existing right to keep and bear arms was premised on the commonplace assumption that individuals would use them for these private purposes, in addition to whatever militia service they would be obligated to perform for the state. The premise that private arms would be used for self-defense accords with Blackstone’s observation, which had influenced thinking in the American colonies, that the people’s right to arms was auxiliary to the natural right of self-preservation. ... The right of self preservation, in turn, was understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government."

But what about that opening clause of the Second Amendment, the problematic and notorious "militia" part of the provision? How can that be reconciled with the "right of the people to keep and bear arms"? Well, the court says it's not as confusing as some people would have us believe; in fact, the amendment's construction isn't all that unusual.

It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it. Volokh, supra, at 801-07. We think the Second Amendment was similarly structured. The prefatory language announcing the desirability of a well regulated militia—even bearing in mind the breadth of the concept of a militia—is narrower than the guarantee of an individual right to keep and bear arms. The Amendment does not protect "the right of militiamen to keep and bear arms," but rather "the right of the people."

So the court winds up its Second Amendment analysis thusly:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).

The appeals court goes on to consider the laws that triggered the case, and finds that handguns are just the sort of personal arms intended to enjoy the Second Amendment's protection. As they say, "Once it is determined—as we have done—that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them."

The judges are careful to state that not all restrictions are barred by the Constitution. In fact, "The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment." In particular, they allow for bans on concealed weapons, registration requirements, bans on possession of weapons by felons, and laws against carrying weapons when intoxicated.

But the District of Columbia can't outright ban firearms, says the court; nor can it require that they be kept locked and unloaded, in a state useless for self-defense.

Finally, there is the District's requirement under D.C. Code § 7-2507.02 that a registered firearm be kept "unloaded and disassembled or bound by trigger lock or similar device, unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes within the District of Columbia.".... Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold
it unconstitutional.

The majority's analysis is impressive, extensive and rather moderate in its conclusions. While fans of gun restrictions are already getting their panties in a bunch over the decision, the court, in the process of voiding D.C.'s draconian laws and recognizing the right to bear arms as an individual right protected by the second Amendment, left the door open for restrictions more extensive than those enforced in most of the United States.

Specifically, the court allowed for registration -- a requirement strongly opposed by liberty-minded people as a dangerous tool to leave in the hands of government officials. Many gun rights activists fear that registration records could be used by the government to persecute gun owners and to round up firearms at some future date.

So the court's decision is remarkable primarily for recognizing what should be obvious to all observers: That the Second Amendment protects individuals, and its guarantees have to be taken seriously by all jurisdictions in the country.

That really is a moderate result, but one likely to go too far for one of the varieties of control freaks that plague our republic.

Which is one reason why this issue is unlikely to be finally settled as a legal matter until the U.S. Supreme Court weighs in on the subject. But it's nice to see things go the right way at the appeals level.

Those evil guns

Is it the '90s again?

In a blast from the Clintonian past, Illinois legislators are considering a bill that would ban so-called "semi-automatic assault weapons." Bans on this category of firearm have always been problematic for the simple reason that there's no such thing. There are "assault rifles" which are fully automatic and already tightly regulated in the U.S., and there are semi-automatic rifles which include a wide range of popular hunting and target weapons that are tough to sell as targets of a ban. There's no such thing, however, as a "semi-automatic assault weapon."

Senate President Emil Jones, the sponsor of this bill, gets around the annoying details by defining the category to consist of "any of the firearms or types, replicas, or duplicates in any caliber of the firearms, known as" a listing of rifle makes and models that are largely semi-automatic versions of military-style rifles and shotguns. The list includes "Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs" (presumable the word "duplicates" would cover the dozens of other makers of the AK-47 and AK-74), Uzi and Galil, FN/FAL and a laundry list of other guns.

Interestingly, the word "replicas" would seem to ban non-functioning versions of the same firearms, making the possession of certain toys subject to legal sanction.

The bill then goes on to ban high-capacity magazines, some pistols (I think the broom-handle Mauser gets banned, if I read the law right) and .50 caliber rifles.

The bill exempts police officers from its wrath -- presumably because they're so trustworthy. We can't have the police subject to the same laws as the public at large, of course.

Basically, it's an early Christmas wish-list for gun-haters, including all of their fears in one vomited-forth piece of legislation. It's the sort of nonsense we so over and over again during the 1990s, all condensed into one nasty bit of authoritarianism.

And there's nothing in the bill that would seem to offer even the faintest hope of reducing crime. In fact, by criminalizing many gun owners, it's likely to increase crime -- and the alienation felt by many residents of Illinois toward the government.

I sincerely hope that gun owners will decline to obey this bit of nonsense if it happens to pass. In the meantime, drop a few pointed thoughts to Senator Jones at: jones@senatedem.state.il.us