Monday, April 12, 2021

Guns again

By coincidence, three days before the Parkland shooting, I did a blog entry entitled "Let's talk guns," which can be found at https://al6thcongdist-ihaveuntiljan13.blogspot.com/2018/02/lets-talk-guns.html. 

I made a couple of additions to the blog entry in the following days.

After that I made much effort via Twitter and my blogs to engage with gun rights proponents about guns. I have not been able to obtain satisfactory engagement. 

With Biden's election and his gun related executive orders last week, the guns debate is up front again.

I will continue seeking engagement with gun rights proponents. 

 

4/17/21 [draft]
A. Framework from prior blog entry, and modifications

My "Let's talk guns" blog entry provides a good starting point for a framework of discussion, and I copy and paste below the following from the blog entry.

The reasons for guns would seem to be:
1. Defense of one's own person and property;
2. Resistance against tyrannical government;
3. Sporting pleasure; and
4. Psychological affinities and satisfactions that many Americans have from owning guns.
Let's put to the side for the moment reason number 2 of defense against a tyrannical government.
On reason number 1, defense of one's own person and property, if guns were outlawed, it is reasonable to believe that people would feel much safer and would think they don't need guns to protect their person and property. There would be much more effective policing for protecting citizens if every police call out was not suffused with fear of police being shot. Other advanced countries have increased safety of one's own person and property with gun restrictions. Collectively, Americans need to decide whether their persons and property are safer in the current circumstances or whether they would be and would feel safer with strict gun control laws.
That leaves reasons 3 and 4. Reasons 3 could be accommodated under a regime of strict gun control laws. Reason 4 also might be accommodated.
The tide may be turning in favor of tight gun control. The tide may be so turning that an amendment to the Second Amendment could get adopted if that was needed to get sufficiently tight gun control.

A main problem I have encountered is that gun proponents won't discuss the reasons for guns separately. I would like them discussed separately and then put them together under the limitations of the 2nd Amendment.

Also I propose that the above framework be modified by bifurcating reason 2 above about resisting "tyrannical government" into separate considerations of a tyrannical FOREIGN government (basically defending against a foreign invasion) and of a tyrannical DOMESTIC government, which would be primarily the Federal government, but a tyrannical state or local government may also be considered.

B. Heller case; 2nd Amendment is not absolute; changes in U.S. society 

In the 2008 Heller case, the United States Supreme Court held that the 2nd Amendment protects an individual's right to keep and bear arms, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home. The Supreme Court was clear in the Heller case that the right to bear arms is not unlimited and that guns and gun ownership would continue to be regulated. 

Many gun proponents take the position that the 2nd Amendment is an absolute right, and any restriction, limitation or regulation of gun ownership by the government violates the 2nd Amendment and is unconstitutional.

That position is clearly wrong under the Heller case, but it frequently ends any discussion with such gun proponents, who desire that there be an absolute right of gun ownership, and who act as if there is no legal basis for discussing any governmental restriction, limitation or regulation, and it is a waste of time to discuss whether governmental restrictions, limitations or regulation of guns would, on balance, be beneficial and desirable for the country.

Maybe such gun proponents can be persuaded to change their minds about their wrong position that the 2nd Amendment is absolute. If they won't change their minds, they can only be dealt with by outvoting the in elections of lawmakers and in the passage of laws by legislatures.

Discussion may proceed with gun proponents who do not believe the 2nd Amendment is absolute and who are willing to consider what gun controls are, on balance, beneficial and desirable for the country, subject to limitations on such controls under the 2nd Amendment, and discussion of what the limitations are under the 2nd Amendment. Such gun proponents may only want to minimize gun regulation as much as possible and not discuss the pluses and minuses of a particular regulation by contending the regulation is unconstitutional (even though the Supreme Court or other courts have not passed on the same, and the regulation may indeed pass constitutional muster in the courts. If so, such gun proponents need to be honest in discussion that such is what they are doing.

Related to whether the 2nd Amendment is absolute is whether gun proponents are willing to take into account changes in United States society, relative both to what gun controls may be beneficial and desirable for the country, and to determining what is permissible government regulation of guns under the 2nd Amendment. Some gun proponents may take the position that changes in United States can and should be disregarded for one or both of the foregoing purposes. For discussion to proceed, gun proponents should be clear in the views regarding the foregoing.

C. Resistance to tyrannical Federal government

First consider whether the 2nd Amendment gives rights to citizens to use arms against the Federal government on the basis of one or more citizens contending that the Federal government is or has become tyrannical.

The Constitution creates a government under the rule of law, the use of arms against the Federal government is inconsistent with such concept of a government by rule of law set up by the Constitution,  and it is dubious that the courts would hold that the 2nd Amendment gives citizens a right to use arms against the Federal government and hold, for example, that the Federal government is prohibited by the 2nd Amendment from defending itself and disarming the citizens who are using arms against the Federal government.

Think the American civil war, or the January 6th insurrection. 

Gun proponents who think the 2nd Amendment gives citizens a right to use arms against the Federal government should expressly advance that contention, and the contention should be raised and used as a legal defense by persons who are being prosecuted for their actions in the January 6th insurrection.  

If citizens do not have a right to use arms against the Federal government, gun proponents might argue that the 2nd Amendment gives citizens a right to own guns as a warning or threat to deter the Federal government from becoming tyrannical, even though the citizens will not have a right to use the guns against the Federal government. If gun proponents think that argument would have legal merit, it can be discussed.

D. Resistance to tyrannical foreign government (foreign invasion)

There is much historical support for the 2nd Amendment protecting the bearing of arms by citizens in militias for aiding in the defense of the nation. 

There are gun proponents who would use the militia language in the 2nd Amendment to expand the Heller holding about individual right to own and keep handguns for personal defense to cover military guns as the same are developed and come into use by the military over time. 

In the Heller case, the Supreme Court added dicta regarding the private ownership of machine guns. In doing so, it suggested the elevation of the "in common use at the time" prong of the Miller decision, which by itself protects handguns, over the first prong (protecting arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"), which may not by itself protect machine guns: "It may be objected that if weapons that are most useful in military service – M-16 rifles the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home."

E. Guns for personal defense

The object of this discussion framework is to boil the discussion down to what regulation of gun ownership could be beneficial and desirable for society, and then consideration of whether particular regulation is constitutional.

For discussion purposes, consider regulation that requires all guns to be registered with, and licensed by the government, a ban on assault weapons, universal background checks, and requirement of a carry permit from the government.

There are numerous arguments on both sides about the benefits and desirability of such regulation. 

These include, on the gun proponents side, that such regulation is unduly burdensome on gun owners; it will not achieve the benefit of reducing gun violence because criminals will not obey, they will get, own and use guns unlawfully, and gun violence will not be reduced; much of the gun violence problem in the United States is a mental health problem and it should be addressed through mental health programs to  detect persons with mental health problems who should not be allowed to own guns.

The foregoing arguments are legitimate ones and merit discussion.

Gun proponents will make further argument that a gun registration requirement creates a risk that the government will use the gun registration information to unlawfully confiscate guns the ownership of which is protected by the 2nd Amendment, in other words, that the government will become tyrannical. Such government tyranny threat argument is discussed separately below.

Let's consider possibilities of how the suggested regulation could be beneficial, which possibilities would call for further investigation, and shall be spoken about hypothetically here.

Hypothetically, what if, in some communities, there was a strong and widespread sentiment that requiring all guns to be registered with the government would be beneficial to the communities. Registration could communicate a strong message that gun owners must be responsible for their guns and proper use. This could be reinforced by community members being able to report to the police if they think a person owns an unregistered gun, and police could investigate by knocking on the door of that person and asking whether the person owns an unregistered gun.

Further gun registration may allow police to significantly demilitarize their own policing.

It is at least plausible that a gun registration requirement could significantly reduce gun violence and reduce police militarization in their police. The effect of a gun registration requirement to reduce gun violence and reducing police militarization can only be found out by trying a gun registration requirement.

That puts it back to gun proponents and whether they are willing to accept the burden of gun registration for themselves if that will help improve significantly the lives of millions of Americans living communities prone to crime and gun violence and subjected to the violence of police militarization.

 G. Fear of confiscation of guns

[to be completed] 

AL business community [added 5/17/21]
I am soliciting the Alabama business community to support greater gun controls in Alabama because gun violence is not good for businesses. https://al6thcongdist-ihaveuntiljan13.blogspot.com/2019/11/silos-in-al-politics.html
AL TV stations [added12/2/21]
I cannot on my own get ALGOP lawmakers, candidates or right wing talk radio to have any conversation about guns. I am urging Alabama TV stations to get conversation and debate on guns subject.

12/23/21
I sent the below email to my Senator and Representative in the Alabama legislature.

From: Rob Shattuck <rdshatt@aol.com>
To: dan.roberts@alsenate.gov <dan.roberts@alsenate.gov>; jwcarns@gmail.com <jwcarns@gmail.com>
Sent: Thu, Dec 23, 2021 5:32 pm
Subject: Will you engage in public discussions about upcoming gun bills?
Dear Senator Roberts and Representative Carns,
I am a constituent of yours.
Will you engage in one or more public discussions about the upcoming gun bills to be considered by the Alabama legislature in the 2022 legislative session?
The legislative bills in question of which I am aware would authorize permit-less concealed carry and would prohibit using state resources from being used to enforce federal gun regulations.
Other gun related bills may get brought up, and discussions about those bills would also likely be desired.
I will solicit Birmingham TV stations and other public outlets in the Birmingham area to provide venues for such public discussions. I will let you know what is offered by the TV stations and other public outlets.
Thank you.
Sincerely,
Rob Shattuck

4/15/22 email to constitutional law professors
From: Rob Shattuck <rdshatt@aol.com>
To: [Constitutional law Professors Smolin, Grove, Horwitz, Brandon, and Olree]
Sent: Fri, Apr 15, 2022 5:34 pm
Subject: Does Second Amendment gives citizens right to bear arms against the government?
Dear Professors Smolin, Grove, Horwitz, Brandon, and Olree,
I have been trying to publicly argue for more than a year that the Second Amendment does not give citizens the right to bear arms against the government.
I say the following in my blog entry Guns again:
The Constitution creates a government under the rule of law, the use of arms against the Federal government is inconsistent with such concept of a government by rule of law set up by the Constitution, and it is dubious that the courts would hold that the 2nd Amendment gives citizens a right to use arms against the Federal government and hold, for example, that the Federal government is prohibited by the 2nd Amendment from defending itself and disarming the citizens who are using arms against the Federal government.
Multiple times I have solicited from Alabama lawyers such as former U.S. attorney Jay Town, Alabama Supreme Court candidate Gregory Cook and (indirectly) Associate Justice Will Sellers, to set forth their views on whether the 2nd amendment gives citizens the right to bear arms against the government. I have gotten no reply from these lawyers.
Thus far none of Mike Durant, Katie Britt and Mo Brooks have said that the Second Amendment does not give citizens the right to bear arms against the government, and statements they have made are suggestive that they believe the Second Amendment gives citizens the right to bear arms against the government.
I have not researched the extent to which the United State Supreme Court has addressed the issue of whether the Second Amendment gives citizens the right to bear arms against the government. In the New York City gun regulation case that is before the Supreme Court, the Supreme Court may shed light on whether the Second Amendment gives citizens any right to bear arms against the government.
There is an April 15th Yellowhammer News article "Katie Britt: The Second Amendment is a ‘critical check’ against government tyranny,", which article quotes Katie Britt as saying, “The Second Amendment is a critical check against the timeless tyranny of government." The article says that Katie Britt intends to author an amicus brief in support of the New York State Rifle and Pistol Association’s case against New York’s Second Amendment restrictions.
That the United States was created by means of an armed revolution of the colonies against England can cloud thinking about whether, after the United States was created by and under the Constitution, the Second Amendment and its support for militias gives citizens the right to bear arms against the United States and its government. On this, I think a distinction needs to be made between militias to defend the United States against foreign governments, and militias to protect the States and individual citizens against tyranny by the United States government over the States and individual citizens. In this regard, the Founding Fathers had concerns about a standing army of the United States, and assuring the existence of militias was a way to address that concern.
The Heller case holds that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
Currently, the Supreme Court needs to give more guidance about what is reasonable exercise of the police power in gun regulation, and whether and how that police power is limited by citizens having a right under the Second Amendment to bear arms against the United States government as a protection against tyranny by the United States. government over States and individual citizens.
The purpose of this email to you as constitutional law professors is to ask whether you think Alabama politicians and the Alabama public are suffering from misimpressions about the Second Amendment, whether such misimpressions are detrimental to the political ability of America and Alabama to reduce gun violence, and whether you believe you have a civic obligation to correct any such misimpressions that Alabama politicians and the Alabama public have about the Second Amendment.
I think you should draft and send a letter to Gov. Ivey, Attorney General Marshall and the Alabama legislature, which letter is signed by Alabama constitutional law professors (and by other Alabama lawyers and Alabama professors of history and political science as you consider appropriate), and which discusses the right (or not) that the Second Amendment gives to citizens to bear arms against the government.
If you send such a letter, I would personally undertake to distribute copies of the letter to Alabama TV stations and other Alabama media outlets.
Thank you for your attention to this email.
Sincerely,

5/8/22
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