Opining Online

Non Sequitur writes:

What I would like to do now is establish a “blog trialogue” with the authors of the Electric Venom and Opining Online blogs. We are going to take a look at various aspects of the Second Amendment and gun laws in the US and bounce some questions off of each other. It may or may not be an effective process, but we are going to try! Comments on any and all of the blogs are welcomed with regard to this trialogue.

He fires the first shot in my direction.

I think that both of us agree that firearms are tools and, as such, it’s kind of silly to affix blame for crimes on tools. A car is just a tool, but when somebody runs over and kills a pedestrian with their Ford F150, the truck didn’t do it, the driver did. We don’t have laws that outlaw an F150 because it is used more often in pedestrian killings and we don’t hold Ford Motor Company or the local Ford dealer responsible for the pedestrian death. But we do outlaw certain kinds of firearms and we have tried to hold firearms manufacturers and dealers responsible for crimes committed by individuals who used their products. Long set-up, eh?

We’ve tried a lot of regulations that seem to fly in the face of logic and that also seems to be less than effective. Hell, DC has had their silly handgun ban for many decades and it is still one of the most dangerous places to live in the country in regard to handgun violence. SCOTUS stated that reasonable restrictions are allowable under the Constitution. One would think that reasonable should equal effective, but maybe not. My question to you is multi-part: What is the definition of a reasonable restriction on firearms? How do we determine if that restriction is effective? And, should those reasonable restrictions be harmonized, uniform, across all the States (or should individual jurisdictions be allowed to have their own rules?)? What say you, Ms. Opining?

What is the definition of a reasonable restriction on firearms?

In Heller, the Court holds that the Miller decision restricts the 2nd Amendment right to “those in common use for lawful purposes”. Further, it is stated that the Court’s opinion

should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

While I personally think that restrictions on carrying firearms in certain places simply renders them defenseless, the SC has specifically allowed such laws. Thus they are for now legally reasonable.

The Court also held what I’ve always considered a most unreasonable restriction on firearms to be unconstitutional

…the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense…is unconstitutional.

While “conditions and qualifications on the commercial sale of arms” is a reasonable restriction to prevent straw purchases and sale of those “dangerous and unusual weapons,” it is not reasonable to impose ‘cooling off’ periods, limits on the number of guns that can be purchased in a certain time frame, or to require a proof of need for licensing.

Therefore, I would define a reasonable restriction as one that does not inhibit the ownership or use of firearms for lawful purposes by a law-abiding and competent adult or of a juvenile under that adult’s guidance.

How do we determine if that restriction is effective?

Data, data, and more data, honestly compiled and analyzed without an agenda.

The restriction that I think will the least effective is the restriction on the mentally ill, because it will be very difficult to enforce without establishing a database of those with such diagnoses. Because these are considered medical conditions, privacy and HIPAA concerns would be difficult to overcome. Further, will this restriction cover all mental illnesses listed in the DSM? If so, would smokers diagnosed as addicted be ineligible to own a gun?

The next least effective restriction is that on felons. It will certainly be more effective than one on the mentally ill because there is already a database and laws prescribing a greater sentence for a crime committed using a gun. This does not really restrict ownership, it just allows punishment for it. So it’s effectiveness is an after-the-fact one. Better than nothing.

Should those reasonable restrictions be harmonized, uniform, across all the States?

Incorporation of the 2nd Amendment into the 14th Amendment should happen. I was somewhat disappointed that wasn’t addressed in Heller. Other than that, no.

Open carry makes perfect sense in parts of the country, while it might create a little chaos in San Francisco or New York City. The SC did not hold that reasonable restrictions must be made. Unless the restriction goes beyond reasonable, each state (and probably jurisdictions within a state) should be allowed to define their own.

And now I get to ask questions!

They will be aimed at Electric Venom and will be posted as an update right after I take a nap!

Continued from Part 1. (I couldn’t sleep, so why wait for tomorrow?)

Under our plan, Congress might require gun makers in the aggregate to reduce gun homicides from 12,000 to, say, 7,000 in 10 years, with appropriate interim targets along the way. Individual firms would each have their own targets to meet, based on the extent their guns are currently used in homicides. Or Congress might simply leave it to neutral experts to determine just how much of a numerical reduction should be required — and how quickly. Either way, the required decline would be substantial.

Translation: We don’t really know how this would work, but be sure it would be a draconian task for the gun manufacturers.

How would gun companies go about reducing gun deaths? The main thing to emphasize is that this approach relies on the nimbleness, innovation and experimentation that come from private competition — rather than on the heavy-handed power of governmental regulation. Gun makers might decide to add trigger locks to their guns, or to work only with dealers who meet certain standards of responsibility. They might withdraw their semiautomatic weapons from the consumer market, or even work hand in hand with local officials to fight gangs and increase youth employment opportunities. Surely they will think up new strategies once they have a legal obligation and financial incentive to take responsibility for the harm their products cause.

Again, we have no idea how this might work, but surely the gun manufacturers will think of something if they want to stay in business. Of course, if they fail… well, it certainly isn’t “our” fault.

Performance-based regulation leaves it up to them to decide. This is the same outcome-based approach that the No Child Left Behind program takes concerning schools. Through No Child Left Behind, parents and school officials set achievement targets for students, and schools then have to figure out how to meet the targets.

How’s that working out for schools? How’s it working out in terms of good education for our children? I wonder what would happen if mandatory gun safety training were required in schools?

Similarly, performance-based regulation is used in a variety of pollution-control schemes and is becoming the preferred global strategy to combat climate change. For example, under pressure from coalitions of environmentalists, scientists and citizens, regulatory bodies are ordering public utilities to sharply cut their carbon emissions. The companies are responsible for designing solutions to best achieve that goal, which could include switching fuels, changing the way they produce electricity, installing scrubbers on smokestacks and so on.

It’s quite different to encourage technology to come up with a cleaner way of producing something. If gun manufacturers are polluters, then cleaning up their act is taking responsibility for what they do. However, asking them to clean up somebody else’s act is unfair at best.

Sen. Michael D. Enzi (R-Wyo.) has put forward a proposal along the same lines to target tobacco. Typically, anti-smoking organizations lobby Congress to give the Food and Drug Administration regulatory power over cigarette companies, and press locally to increase tobacco taxes, run more government anti-tobacco ads and boost enforcement of bans on sales to minors. Under Enzi’s performance-based regulation plan, however, the tobacco companies would simply be told by Congress that they have to cut their customer base by about 50% in 12 years. It would then be up to the companies to figure out how to curtail smoking rates.

Now we’re getting to the real purpose — cutting the number of customers, thus cutting the number of guns manufactured, thus finally closing the doors of gun manufacturers permanently. Why not just say so? Why all this “performance-based” BS?

Why heck, why don’t we just make it illegal for criminals to own guns. (<sarcasm) Maybe we should have the tobacco companies give them free cigarettes so they will be unhealthy and not live as long too. After all, isn’t smoking going to be illegal someday soon if all the nannies have their way?

So how exactly might this work in the case of gun makers? For more than half of all gun homicides, law enforcement officials are able to identify the precise type of lethal weapon that was used. From that data, reliable statistical projections can be made to determine each company’s approximate share of all homicides. Each company’s quotas would be based on the data, and tied to an ever-decreasing number of deaths.

You could rephrase that as tied to an ever-decreasing number of crimes. How does the country benefit by placing law-enforcement into the hands of gun manufacturers?

Why not look at the data and see if there are other types of precise information that can be culled? Is there data about how many of these murders were related to illegal drug use? Domestic violence? The criminal record of the deceased? Perhaps the gun manufacturers could use that data to lobby for decriminilazation of drugs, thereby ending “drug wars” and monetary sustenance of some gangs?

What if the gun manufacturers lobbied for more and better resources for victims of domestic violence, including men as well as women?

Would these efforts at reducing crime count?

A more fine-tuned strategy would set different gun-death-reduction quotas based on the specific weapon — with larger reductions mandated for guns that are more commonly used in homicides.

See part 1. Fourth paragraph from the bottom.

If gun makers fail to reach the performance targets, they would face substantial financial penalties that would hike the cost of the guns they make and drive home the huge negative social consequences they now cause.

Where’s the evidence that gun manufacturers cause “huge negative social consequences”? Can there be no credit for “positive social consequences” such as crimes deferred and deaths prevented by the presence of guns in the hands of law-abiding citizens?

What about my bonding with my son-in-law at the range? Is that not positive in the long run? What about the rangemasters suggestion that I dump my husband and move to Arizona? You have no idea the positive social effect that had on me!

Performance-based regulation is not about the government denying people access to guns. It’s not an academic theory about the underlying causes of gun deaths, nor is it a restriction on the right of law-abiding citizens to bear arms. Instead, it is a practical way to align the gun companies’ interests with the public interest and, ultimately, to save lives.

No, it’s a poorly disguised method to drive gun manufacturers out of business, thus depriving law-abiding citizens the opportunity to buy a legal product.

Jeffrey Fagan is a professor of law and public health at Columbia University. Stephen D. Sugarman is a professor of law at UC Berkeley.

Occupants of two coastal ivory towers think the rubes residing between them cannot figure out that their idea is not in our best interest.

UPDATE: Armed Liberal at Winds of Change has a good idea. 

Jeffrey Fagan, Columbia University and Stephen D. Sugarman, UC Berkeley have a plan. A Plan. A PLAN!  They want to ”Make firearms manufacturers figure out how to reduce the 12,000 shooting deaths each year.”

This year, about 12,000 Americans will be shot to death. It’s a staggering figure, and even though lawmakers have continued to pass gun-control laws to try to bring the number down, they have not significantly reduced the murder rate. Indeed, for the last decade, guns have steadily remained the cause of about two-thirds of all homicides.

Guns don’t cause homicides. How many times does it have to be stated that guns are tools? Simple machines, really. It’s been said so much to so many people who have their hands over their ears singing “lalalala I can’t hear you” that it’s become trite. That doesn’t make the statement false. I’m as tired of saying it as “gun-controllers” are of not hearing it.

Oh, I wonder why all those gun-control laws “have not significantly reduced the murder rate?” Could it be, as I wrote above, that guns don’t cause homicides?  

Gun manufacturers insist that these deaths are not their fault, preferring to pin the blame on criminals and irresponsible dealers. They have fiercely resisted even minimal restrictions on sales and have simultaneously washed their hands of responsibility for this “collateral damage.”

Unless a gun manufacturer pulled the trigger, then they are not at fault. How unspeakably sad and irresponsible it is that they prefer to blame crime on criminals instead of the tools the criminals use! And aren’t irresponsible dealers criminals by definition? Aren’t they already charged with doing background checks, etc… ie, acting responsibly?

On Thursday, the U.S. Supreme Court made the problem a little more difficult to solve, ruling in District of Columbia vs. Heller that the individual’s right to bear arms is indeed protected by the 2nd Amendment — and making it clear that some laws banning guns would have a difficult time passing constitutional muster in the future.

Actually, the Court’s ruling should make it easier for reasonable legislation to be effective. There will less effort expended on making and trying to enforce unreasonable junk laws designed primarily to make someone feel good.

What is to be done? The conventional regulatory approaches seem to be failing.

No shit Sherlock. Got any more shocking news for me? Regulations imposed on lawful businesses and lawabiding citizens have little effect on criminals and their enterprises.

 A more recent strategy, in which victims or municipalities bring lawsuits against gun manufacturers or retailers, seems legally and politically unpromising since the 2005 passage of the Protection of Lawful Commerce in Arms Act, which shields gun manufacturers from civil liability.

“… seems legally and politically unpromising?” Yes, I’m laughing. To be totally fair, I have to consider whether this entire article was written as a parody. Unfortunately, it fails equally whether a parody or presented seriously.

We propose a new way to prod gun makers to reduce gun deaths, one that would be unlikely to put them out of business or to prevent law-abiding citizens from obtaining guns. By using a strategy known as “performance-based regulation,” we would deputize private actors — the gun makers — to deal with the negative effects of their products in ways that promote the public good.

How about we deputize lawmakers to deal with the negative effects of their legislation in such ways? Lemme see, where was it I recently read that the regulations and bans they came up with are not doing the public any good?

Let’s define “public good” while we’re at it. To me, it’s a public good to have individual free choice. Or, for argument’s sake, let’s call it free will. Both the criminal class and the law-abiding class have a choice of tools and actions taken with that tool. Is the public good served by limiting the choices of the good people while having limited (if any) effect on criminals?

Would not the public good be better served if the law-abiding are better armed than the criminals and the criminals knew this? What public good is served by announcing to the criminal that in certain places nobody will be armed to prevent them from doing their crime?

In other words, rather than telling gun makers what to do, performance-based regulation would tell them what outcome they must achieve: Reduce deaths by guns. Companies that achieve the target outcomes might receive large financial bonuses; companies that don’t would face severe financial penalties. Put simply, gun makers — whose products kill even when used as directed — would have to take responsibility for curbing the consequent public health toll.

In the first place, this kind outcome based requirement would result in certain guns presumed to be preferred by criminals or affordable by criminals, being considered bad, morally wrong in some way. Criminals aren’t necessarily stupid, they choose a tool based on the same considerations non-criminals do. Does it perform well? Is upkeep minimal? Can I afford it? Is it too large or too small for my hands? Many other factors come into play also, I’m sure.

And, second, what industry will be next? Automobiles? Liquor manufacturers? Bars? Swimming pool builders? Knifemakers?

I’m tired now. Reading and thinking about this level of insane gobbledygook is tiring. Part 2 tomorrow!

UPDATE: While allowing my self-imposed 10 minute break before proofing my work, I see that Instapundit has linked to Kevin D.’s take (over at Dean Esmay’s place) on the same article.

My headline originally used the word “confer” in stating what the 2nd Amendment does. But that is wrong — the Bill of Rights enumerates rights already possessed and limits the government’s ability to take them away.

It’s not that legislatures won’t try and judges won’t agree with them. Or that legislatures will try to make laws that further insure these rights and judges will disagree with them. The Constitution may not be a “living” document, but interpretation and (misinterpretation) of it are alive and well.

For the best commentary from people who actually know what they are talking about, head on over to The Volokh Conspiracy. 

I want one of these! Preferably turbocharged.

At least some of us get it. No, wait. I think the majority of us get it. Follodor points out why gun buybacks don’t work - people are not as stupid as the government hopes they are.  I think I might substitute “most politicians” for “government” in that statement, but meaning is near the same.

Then again, why do we not-so-stupid people keep electing stupider-than-us politicians?

Ann Althouse asks “Should a 10-year-old be permitted to go hunting?” In Wisconsin, there’s a proposal to lower the hunging age from 12 to 10. A previous proposal set the age at 8. I find myself in agreement with the Althouse commenters who suggest that parents must decide when a child is mature enough to hunt.

Myself, I went to hunting camps as young as 8, but never hunted because I didn’t want to. There was no pressure. Just like there wasn’t any pressure to get me to fish. I did, however, enjoy the bounty of those who successfully hunted and fished. Especially fish. Especially catfish and crappie. I love fish much more than I like venison.