Tag Archives: politics

Six Unworthy Amendments

Six Amendments is a disappointment.

I took issue with Justice Stevens’s proposed amendments in my first post on the book, before it was released. I stand by my criticisms of the campaign finance, gun control, and death penalty amendments – they are poorly written, and for the most part would not provide the clarity judges need to make consistent, predictable rulings. (I actually have more of a problem with his campaign finance amendment after reading the book – any reasonable reading seems to allow the government to prohibit publishing books, if it so chooses, so long as the book is plausibly connected to an election.)

The other three (gerrymandering, sovereign immunity, and commandeering) have more distinct problems: I’m not convinced that the anti-commandeering rule is as harmful as Stevens claims, and he made no effort to present the arguments against his position, so I don’t fell informed enough to make a decision. Most importantly, I’m not clear what effect (if any) his amendment would have on the scope of Congress’s ability to act outside its enumerated powers.

The argument against states’ sovereign immunity (unrelated to qualified immunity, as it turns out) has basically the same problem as the commandeering argument: there’s no analysis of the policy value of sovereign immunity. That said, it’s probably one of the strongest of his proposals.

The gerrymandering proposal is likely the strongest proposal – my only serious objection is that it is inelegantly drafted. By explicitly stating that strengthening one party’s control is not a valid, neutral purpose, he leaves a huge number of equally poisonous angles (i.e. the protection of incumbents) open to litigation, if not acceptance.

Predictably, since the amendments are sloppily drafted, there’s no redeeming the rest of the book. Stevens goes into some depth on the history of how the law reached its current state (arguing, in each case, that dissents he wrote or joined would have prevented this outcome), but as I noted, he spends little or no time discussing the wide variety of possible solutions to each problem, and the arguments for or against each one. Even worse, he spends no time arguing for his phrasing by addressing different ways his proposed text might be interpreted by judges in the future. Even for a rank purposivist such as Stevens, the flaws and ambiguities in his text should be clear and important.

Overall, the book is unambitious, and unworthy of its premise. When one promises to explain “How and Why We Should Change the Constitution,” especially when the promisor is a former Supreme Court Justice with a broad-ranging knowledge of the legal issues facing the country, it seems reasonable to assume the pool of possible topics is wider than “dissents I’m still mad weren’t majority opinions.” Stevens didn’t follow through on that at all.


Observations on gun culture and “self defense”

In the wake of the Newtown shooting, it looks like gun control is on the political agenda for the immediate future (at least, more than it has been in the recent past). Following each of the recent mass shootings, I’ve tended to spend some time in the days after looking at gun-related websites–everything from forums discussing the best home-defense calibers, to Guns & Ammo magazine, to the webpage for Colt’s .22 rimfire M-16 lookalike. In that time, I’ve noticed some things about the gun owners who comment on those sites–things that I thought would be useful for other people like myself to understand during the coming policy debate. This will not be a heavily data-driven post, other than my own observations, but I hope it will be useful.*

I feel some need to open with a quick statement on some of my biases.

I think it’s fair to say that my family has little use for guns. Not just my immediate family–I’m not aware of any gun owners in my entire (large) extended family. I may have missed one or two, but I doubt it. I also live in DC, and lived before that in New York City–not among the most gun-happy areas of the country. I have had little exposure to the culture of gun ownership.

But even with that background, I’m not totally ignorant about guns. I learned to shoot in Boy Scouts, and wasn’t god-awful at it–I shot .22s, shotguns, and once a percussion(?) muzzleloader. I have never shot a handgun, although I’m intrigued by the possibility. And I’ve had a lifelong fascination with weapons of all sorts, so I occasionally kill a few hours reading about guns on Wikipedia.

Finally, as a health policy guy, I need to admit that I see guns as an environmental health hazard. The evidence is pretty ambivalent on whether having more armed citizens around has much of an effect on crime, but with respect to suicide and accidental death, it’s pretty obvious that having more guns around leads to having more people dead from accidents and suicides. With that noted, my observations.

First, several beliefs that appear common among gun owners:

  1. Responsible gun owners don’t pose any threat to other people. Most of the comments I’ve seen attribute gun risk to individuals, not to guns–there are “responsible, law-abiding gun owners” and irresponsible or non-law-abiding gun owners, and the responsible ones don’t cause injuries or death. Rather, gun deaths are caused by irresponsible gun owners, the mentally ill, and criminals.That belief is true, to a certain extent–in any given year, or even over a lifetime, any given gun owner is unlikely to commit a crime or kill someone with a gun. But moving from that fact to the idea that legal guns pose no risk is obviously in conflict with the data and what I just got done saying about guns as a public health hazard. That conflict points out the deception inherent in the phrase, “Guns don’t kill–people do.” Because while it’s true that guns are not independent actors who choose to kill people with no human involvement, the fact remains that the presence of guns means more people end up dead. Because while responsible, law-abiding gun owners are unlikely to commit crimes, their guns can still be involved in accidents and suicides–and both of those risks remain, simply based on the presence of a gun.
  2. Violent crime is a common (or at least likely) occurrence. Gun forums are the only place I’ve ever seen someone use the term “gangbanger.” It’s common there, though, as a generic term for (as nearly as I can tell) people who actively are out to commit violent crimes against ordinary people. “Gangbangers” seem to be the boogeyman that will rob your house, or assault your wife or elderly grandparent in the street–if you’re not armed. Editorializing again, this seems contrary to reality. Violent crime (and particularly random street crime) is, by the standards of history and for most people in almost all areas of the US, very rare. Clearly there are areas where it’s more common, and people in particular occupations may be more likely to be targeted, but a belief in common violent crime seems necessary to make a general case that “I need to protect my family.”
  3. The police will not save you. When the gangbangers come, the police will either be (depending on which site you’re looking at) uninterested in helping you, or just not around when you need them. That means protecting yourself (and your family–these sites always invoke protecting the family, in what seems to me like a shoutout to hypertraditional family-first thinking) cannot be effectively outsourced to the power of the state.This belief is, in a certain respect, probably right. I’m not familiar with typical police response times, but there are at least some situations where criminals escape before the police show up. But I’m also not sure how much they would accomplish if they did frequently show up to, for example, a home invasion in progress. The idea that the police are supposed to provide armed protection to the citizens (but they just don’t) seems like a misunderstanding of the role of a modern police department: to deter, investigate, and prevent crime, promote public order, and catch criminals after the fact.
  4. Owning and using a gun is an effective way to protect yourself against violent crime. There are two ways that guns protect you against violent crime–by deterrence (both group and personal), and by responding to a threat. There are a couple ways this logic works. The deterrence case for widespread concealed carry is that criminals will be unlikely to attack people if they believe many of their potential victims or bystanders are armed, because they don’t want to get shot. Obviously, in this worldview, the more common concealed carry is, the better off everyone is–it’s a classic collective action problem. (This is also a relatively testable proposition–if criminals fear the general concept of an armed citizenry, there should be pretty solid evidence that overall crime goes down when more people carry concealed. The deterrence case for open carry is more direct, and harder to test–if you are openly carrying a weapon, criminals are presumably less likely to attack you, but that may simply mean they pick a softer target. In that case, there is no positive externality to more common open carry.)Finally, there’s the response case, i.e. the presumptive point of carrying a weapon (or at least a loaded one–deterrence could perhaps be accomplished without ammunition): a person who is armed can attempt to use their gun to remove the threat, either by killing the assailant, scaring them off, or maybe making a citizen’s arrest. (I may just have looked in the wrong places, but I remember seeing very little writing on what to do once you have a gangbanger/robber/rapist/whoever in your sights.)

    The data seem to suggest that homicides are not substantially affected either way by concealed carry. My recollection is, however, that there are pretty strong data saying that guns kept in the home for protection are substantially more likely to injure a member of the household than be successfully used against an intruder. That’s plausible on its face, simply because intruders are rare (as noted above), family members are frequently home, and late-night accidents and miscues are all too common. My guess, though, is that gun owners are as aware of that data as the rest of us–they simply fall prey to the Lake Wobegon Effect, and assume that their superior equipment/skills/training/awareness in the middle of the night will make them more likely to use their gun effectively.

  5. Given 2, 3, and 4, owning a gun is the responsible thing to do, to protect yourself, your home, and your family. I haven’t and can’t address the deeper philosophical and psychological differences between people who own guns for protection and those who don’t. But if these beliefs above are true, the case seems pretty obvious. I see most of these as either inaccurate, misunderstandings of the evidence, or just not terribly relevant to whether or not owning a gun makes sense, but it’s at least possible to tell a rational story about why one might choose to do so.

For more on gun owners’ beliefs, read the excellent “Tactical Reality” at TPM and this Atlantic piece. (The latter is interesting for “Registration, confiscation, genocide,” but I don’t see any reason to believe that’s a common view–it’s got more in common with Stormfront than Guns & Ammo.)

Two final observations:

  • Gun owners are not a homogeneous bunch. (Duh.) Obviously, goldbug doomsday-preppers don’t necessarily have a lot in common with antique gun collectors, who may have nothing in common with deer hunters, who perhaps don’t agree with the home-defense types on much.  Writing this has made me realize that the “beliefs” I listed above are probably most reflective of  one particular group–the people who believe in owning guns for home defense. I would not be surprised, however, if these beliefs and the arguments that come from them (“Criminals will get guns anyway, so it doesn’t make sense to take guns from law-abiding citizens who aren’t a threat anyway”) will form the core of the opposition to additional gun control.
  • Last, gun & ammunition manufacturers are having a field day with zombies. I’m not going to read into this too much, because if I owned a gun I’m sure I would be all about blowing holes in some zombies. But in the end, tactics and equipment for killing zombies are pretty similar to tactics and equipment for killing people. That makes the extent of the fantasy mildly unsettling–it goes beyond targets and forum discussions to full-scale articles on Guns & Ammo on the best anti-zombie guns, “zombie ammunition” and specially-marketed “zombie guns.” And amid the rest, I can’t help but find this target’s resemblance to a caricature of  President Obama disturbing.

Please, if I’ve misrepresented anything, or gotten some important fact wrong, point it out. As I’ve said, these are merely observations, but I do hope they’re informative.

*Given my lack of extensive data, I will endeavor not to make unreasonable generalizations. However, the whole point of this post is to generalize some of what I’ve seen. Thus, this is my disclaimer that the points I make here may not be representative of all or even most gun owners, or even of participants in gun forums. They are simply my recollections from  looking around the web.