I was born and raised in a part of the country that refers to itself as “Sportsman’s Paradise.” In South Louisiana, people like to say that there are four seasons- football, Carnival, festival, and crawfish- but if you drive a few miles north, many folks would argue that the four seasons are actually deer, duck, dove, and Christmas. When I was in elementary school, during show and tell, kids would sometimes bring pictures of themselves sitting atop deer carcasses. Sometimes, the local newspaper would even print these photos. I’ll never forget when, in the fourth grade, one of my classmates, a boy who had been picked on for being scrawny and short, was sent home after he showed up with a dead squirrel in his backpack. He’d just wanted us to know that he’d shot that stupid squirrel, that he wasn’t a wimp; he was a hunter.

As a kid, I understood that people sometimes used guns to hurt and kill other people, but the people who I knew who owned guns, they were just hunters. They didn’t own the scary, shiny, metallic guns that I saw in the movies; they owned oak-paneled rifles that required deliberation, patience, and skill. And that was part of the allure of hunting: You couldn’t just indiscriminately fire out a hundred bullets a minute; to be good, you had to be patient and precise, a marksman. It was, after all, a sport.

But during the last twenty years, America’s gun culture has dramatically changed. Our Second Amendment right to keep and bear arms somehow became a sacrosanct right to murder anyone perceived to be threatening; it became a right to possess and stockpile massive arsenals of weaponry designed, exclusively, to kill as many people as possible as quickly as possible. Why would you use your dad’s old hunting rifle to scare someone away from your property when you could buy a high-powered semi-automatic rifle from the nearby WalMart?

I have some theories about why this change occurred, but I don’t think they entirely suffice. Part of the shift, I think, is because rural and suburban Americans became increasingly fearful of the epidemic of urban, inner-city violence that percolated in the late 1980s and early 1990s. When President Clinton, in response to this violence, signed a ban on semi-automatic weapons, many law-abiding gun owners felt unfairly singled out. Part of it, also, is that the gun lobby in America has successfully convinced people that guns aren’t just a part of our history and our culture; guns are our culture. Guns are just as American as baseball and apple pie, and anyone who seeks any restrictions on the manufacture and sale of any guns is somehow un-American. And part of it, I think, is that we’ve lived in a state of perpetual war for more than a decade; it’s no surprise to me that the perpetrators of the most recent spat of gun massacres have all been in their early twenties. Before we blame fictional video games and movies for promoting a “culture of violence,” we should first look at reality.

We are deluding ourselves. We are caving into the hysteria of a small group of angry people who promote their naive and dangerous beliefs about the need for and the constitutionality of unfettered gun ownership, while wrapping themselves around the flag and pretending as if they’re promoting Christianity– or, even worse, pretending as if any honest discussion about how we, as a country, can stop gun massacres is an assault on Christianity.

No one wants to take away your right to keep and bear arms. But here’s the thing: The Second Amendment has never been about protecting your individual right to use high-powered weaponry to murder your fellow Americans; it is, in very plain English, a way to ensure that Americans can form “well-regulated militias” to protect themselves against institutionalized invasions. And during the last few decades, this right has been perverted and desecrated by the profiteers of death, mayhem, paranoia, and destruction.

Rights carry responsibilities. If you want to hunt deer in Louisiana, you need a license. You can’t kill more than a certain number of deer in any given season. And this is a contract that all deer hunters must agree. The idea is: If you want to hunt, you must play by the rules and the regulations. Somehow, though, when it comes to owning weapons that are designed to murder human beings, we’re told that there shouldn’t be any rules.

Spare us all the self-righteous indignation, the equivocations about guns being no worse than cigarettes or drunk driving, the bizarre paranoiac fantasies about how you’re going to protect the country from a violent coup, the moralizing on Scripture, and the excuses about how this latest massacre was unpreventable because evil is unpreventable.

In my lifetime, we went from a country that understood gun ownership as a right to hunt and, secondarily, as a last resort for self-defense into a country dominated by an intransigent gun lobby that seeks to arm every man, woman, and child with an instrument of death. We are less safe, less free, and more fearful, as a country, because of those who refuse to acknowledge the need for sensible gun control. We are being terrorized, over and over and over again.

And our actual enemies are well-aware. If you don’t believe me, do yourself a favor and watch this video of Adam Gadahn, a member of al-Qaeda and the very first American charged with treason since the 1950s.

The sad reality is– particularly after the shootings in Newtown yesterday, it’s hard to imagine that al-Qaeda could use our gun loopholes to terrorize Americans any more than we terrorize ourselves.

32 thoughts

  1. I agree with you on nearly all of this except one thing. The constitution gave us right to bear arms so that if an oppressive government rises, and the people choose to dispose of it, we will have the ability to do so through force. It is clear that our Founding Fathers were referring to another revolutionary war, if that were needed. . . which points to killing as many of the opposing government’s regime if that is what is necessary to do. . . full blown war. And therefore all the guns designed to kill as many people possible are, quite literally, within our constitutional right to own, Thankfully this contingency has not occurred since the Revolutionary War, the War of 1812, and the American Civil War.I pray it never happens again.

    1. This is a fantasy, Marshall, a complete work of revisionist history, and it’s become the “intellectual” justification for unfettered gun laws. The Second Amendment clearly states that Americans have the right to form “well-regulated militias;” regulation, by its very definition, implies an adherence and deference to our system of laws.

      You’d have us believe that our Founding Fathers intended for the Second Amendment to be an all-encompassing “escape clause” that would allow any group of people who are dissatisfied with our democracy to band together and murder our elected officials. Of course, the much more logical explanation is that the Second Amendment was intended to provide each and every American with the right to prevent an armed invasion against the government.

      The Second Amendment is not an “escape clause” or an “exit hatch” that somehow empowers citizens to keep and bear arms in order to stage an insurrection against our democratically-elected leaders. If you attempt to use weaponry to violently overthrow our government, you are engaging in an act of high treason; you are not protected by the Second Amendment; you are a criminal, operating outside of our system of laws.

      So, no, you do not have the right to own whatever weapons you can. You never have had that right. You also don’t have the right to own a nuclear weapon, fully automatic weapons, chemical weapons, bombs, fighter jets, etc.

      You are fundamentally wrong about the Second Amendment; the right to keep and bear arms is NOT the right to overthrow the government. It is, quite simply, the right to PROTECT the government through “well-regulated” militias, regulations that are defined and enforced by the government.

      1. Lamar,

        You are quite wrong on this. You’re imposing a modern definition of the phrase “well-regulated” onto an amendment written at the close of the 1700’s. Back then a popular use of the word “regulated” was “properly disciplined,” i.e., equipped and trained. That usage is now obsolete, but the best evidence suggests that was the intended meaning. Federalist No. 29, in which Hamilton talks of “the degree of perfection which would entitle them to the character of a well regulated militia,” strongly indicates this.

        The idea was that the common body of the people, the militia, required arms to train with in order to be a meaningful force. There is absolutely no historical evidence that I have ever seen to indicate that “regulated” was in the sense of “adherence or deference” to laws that would otherwise appear to infringe on the right to keep and bear arms. The notion frankly makes little sense.

        As for the rest, you’re only half right. Many of the founders (particularly Anti-Federalists) did envision the militia as a bulwark against domestic tyranny because they were generally wary of standing armies. There was definitely a belief that efforts to prohibit free men from keeping and using firearms was a potential precursor to tyrannical rule. However, the Federalists were more wary of this view and fearful of mob rule, the likes of which was occurring in France. Despite the split, the idea of the militia viewed as being the last resort against tyrannical rule is definitely not a myth and it certainly influenced the Second Amendment.

  2. If the government wants to overthrow you, your guns won’t help. They’ll send in drones to bomb you to smithereens, tanks that can vaporize your house will flatten your property, you’ll be outflanked by far superior and incredibly highly-trained soldiers, and you’ll be dead before you need to reload. Part of the paranoiac fantasy that Lamar discusses is one in which you and your friends overthrow the government. Presumably because they don’t think individual states should say it’s okay to own human beings as slaves. Or for whatever reason is available.
    The “contingency” you speak of is an hysterical fantasy at this point in history: the government’s means and technology so drastically dwarf anything a citizen’s militia could own means that whether you own no guns or a shit-ton of guns, if the government wants to take you out, you’re a grease stain before you had a chance to click the safety off.
    What you describe is a fantasy which has no bearing on the material reality we are currently living in the twenty-first century.

    1. Owen, thank you for your comment, and thank you for referencing Federalist #29, Alexander Hamilton’s seminal treatise on the definition of “militia” and its application in the Constitution.


      With all due respect, Owen, you are fundamentally misreading Hamilton’s argument and attempting to cloud the issue with meaningless rhetorical distinctions. Regardless of how Hamilton defined the word “regulated,” in Federalist #29, he’s arguing in favor of a national militia (i.e. the military). Ironically, you’re accusing me of misunderstanding the usage of the word “regulated,” while referencing a treatise that implicitly understands the word “militia” as a synonym for “military.”

      Hamilton was arguing in favor of a national militia (military), instead of thirteen disparate militias each controlled and organized by the States.

      You’re totally confused on this issue: At the time, our Founding Fathers were arguing the mechanics and the organization of the military. Should each state retain autonomy over their own armies, or should we consolidate power in the federal government? Of course, in the end, we achieved somewhat of a compromise: States retain authority over their own National Guards, but the federal government is responsible for national defense and may chose, at the President’s discretion, to federalize the National Guard.

      I recognize that some people legitimately believe the Constitution provides Americans with the right to form their own rogue militias in order to murder their elected officials, and there’s no doubt that our Founding Fathers pondered the potentiality of “domestic tyranny.” But the great check on tyranny is democracy itself, and again, in our democracy, there is no “escape clause” that allows a rogue group of actors to violently overthrow elected officials. For such a scenario to occur, our social compact would have had to already have been completely obliterated.

      Still, maybe you’re right. Maybe I shouldn’t have focused on the word “regulated.” As you unwittingly point out, the definition of the word “militia,” as understood by our Founding Fathers, makes my points much more forcefully.

      1. Lamar,

        I think you’re indulging a distraction. The only reason I cited Federalist No. 29 was to show how the word “regulated” was commonly understood in the late 1700’s as a matter of simple meaning. There’s nothing ironic about using it for that purpose regardless of what other things Hamilton argued.

        Irrespectively, Hamilton’s arguments in Federalist No. 29 are hardly encapsulated in the Second Amendment. Hamilton argues, and I quote, that “[t]he project of disciplining all the militia of the United States is as futile as it would be injurious,[.]” Thus, he proposes a “select corps of moderate extent” who would become “an excellent body of well-trained militia” (a subset of the larger militia, not a novel conflation of “militia” with “military”). When Hamilton says “all of the militia” he is very clearly referring to “the people at large” (which is why he thinks it would be impractical for the whole militia to achieve militiary discipline).

        In other words, Hamilton proposed the federal government establish a select group of the militia trained by the federal government rather than having each individual state keep the broader militia well-regulated. Hamilton still recognized that the militia is constituted of the body of the people (who should be “armed and equipped”) organized at the state level, and that his proposed “select corps” of militia does not fully replace the broader militia. All of this was proposed as an alternative to a standing army, or at least to keep a standing army in check.

        The Second Amendment, on the other hand, does not provide for or reference Hamilton’s propose “select corps” of militia at all, but rather states that the milita (i.e, the populace) should be “well-regulated” (which Hamilton derided as impractical, saying at best you could expect the public to own guns and meet a couple of times a year). This wasn’t the only thing Hamilton came out on the losing end on — Hamilton disapproved of the whole idea of a Bill of Rights in Federalist No. 84.

        To make a long story short, then, Federalist No. 29 does not attempt to redefine “militia,” and even if it had, Hamilton lost that particular battle in the debate over the Second Amendment.

        To conclude, the word “militia,” including in the context of the Second Amendment, refers to every able-bodied male (aged 18-45) capable of carrying a gun. That’s what Hamilton very clearly says in Federalist No. 29. That’s also what the Militia Act of 1792 said, and federal law still defines the militia this way in 10 USC § 311(a). What you are doing to avoid this conclusion is conflating Hamilton’s proposed “select corps” with the whole militia. That’s incorrect and something Hamilton himself didn’t even do.

          1. Lamar,

            My point is that nothing in the first part of the Second Amendment (the preamble or “militia clause”) textually limits the right. The preamble basically expresses the ideal of the Anti-Federalists that the entire populace would be well-trained and equipped. The second clause says that individuals have the right to keep and bear arms. This makes sense, because if you want the entire body of the people to be a fighting force, you can’t very well deny them the right to own, use or transport firearms.

            It would have made no sense, however, to have an individual right to keep and bear arms if “well-regulated” meant “subject to federal regulation” and/or “mlilita” meant “a military force organized and commanded by the federal government.” The Bill of Rights originally only applied to the federal government and were not intended to expand federal powers (hence the 9th and 10th amendments). Why would you guarantee a right against the federal government based upon the need for a federally-organized-and-controlled militia? Or that suggests the federal government has broad powers to limit that right?

            My point is that the second amendment does, in fact, guarantee and pretty broad right to keep and bear arms. The things you suggest would pretty clearly violate it.

    1. Ban the sale of semi-automatic weapons and military-grade assault weapons.

      Ban the sale of high capacity magazines. Require that when you purchase a gun, you must have at least two people who will vouch for you (which is what our neighbors in Canada do).

      Increase the waiting period to 28 days.

      Require firearm microstamping or ballistic engraving.

      That’d be a good start.

      1. Lamar,

        First off, are there any “military grade assault weapons” that aren’t semi-automatic? After that you’re talking about revolvers, pump-action shotguns, bolt-action rifles and the like. And that’s closing off most major firearms innovations since before 1885, which sounds more like “extreme” than “sensible.”

        Secondly, what’s with this about “high capacity magazines?” You just banned semi-automatics; except for some bolt-action rifles (which have a slow rate of fire anyway), there aren’t going to be any magazines. The same goes with microstamping and the like; if you aren’t using a semi-automatic, you’re probably using a revolver, which means you aren’t ejecting the casings and there’s nothing left to trace.

        Having two people “vouch” for you just seems like a weird and arbitrary requirement. People who live around gun aficionados will have no shortage of people willing to “vouch” for them, while others may not be so lucky. It sounds a random barrier to me. The same goes for a 28 day waiting period; you don’t need that long to run a background check or, frankly, even for some kind of “cooling off” period. These just sound like requirements designed to make getting a gun more difficult for the mere sake of making it difficult.

        These are the types of proposals that make gun owners suspect that your camp, waxing poetic about hunting aside, just plain hates guns and wants to substantially limit the ability of Americans to own them.

        1. Owen, your comments perfectly demonstrate why we, as a nation, haven’t been able to do anything to curb the epidemic of gun violence. Whenever someone proposes thoughtful and sensible proposals for reform, gun advocates respond with a combination of arrogant dismissiveness, intransigence, and an almost pathetic belief that they’re being unfairly victimized, as if reforms are being driven by people who simply “hate” guns or “hate” the Second Amendment.

          This hackneyed reaction and these tired talking points aren’t going to work anymore. Gun control advocates have studied your playbook. Here are some highlights:

          Page One: Arrogant dismissiveness. The first way to “disarm” someone who believes in gun control is by suggesting that they know absolutely nothing about guns. To be effective, you should employ technical language; it will create the illusion of a nuanced argument. Remember, you are the real expert in guns, and your opponent has probably never fired a weapon in his life.

          Owen, I’ll give you some points here: You began your response by incredulously wondering if there were any “military grade assault weapons” that weren’t “semi-automatic.” Well, yes, of course there are, as you well know, but let’s be honest: You only asked that so that you could disingenuously pivot to the notion that, when I suggested a ban on semi-automatic and military-grade assault weapons, I was actually proposing a ban on practically ALL guns, “closing off most major firearm innovations since before 1885.” You then suggested that my position, which you suddenly redefined in your own terms, was extreme.

          It’s really great how that works for you! You purposely misread a proposal for a ban on semi-automatic weapons, something that we had in place in this country from 1994 until 2004, as an attempt to ban basically all guns. That way, I look like the extremist!

          Page Two: Intransigence. If you give an inch, they’ll take a mile.

          Owen, you get more points here. You suggest that the reason we shouldn’t consider banning high-capacity magazines is because I’ve already suggested banning semi-automatics. And hey, what good would a high-capacity magazine do without a gun that could use it? It’s a stupid argument, to be sure, considering that any bans on semi-automatic weapons would be prospective and not retrospective, but you should get credit for trying.

          Page Three: Play the victim.

          Owen, here’s where you get the most points. I suggest that we should consider the same laws that our neighbors in Canada have, requiring gun owners to have at least two people vouch for them, and you say this would be unfair to people who don’t live around gun nuts. I suggest increased wait periods for gun purchases, and you say this is just about making it more difficult to buy guns. (You’ve got me there. You’re damn right it is).

          And finally, you conclude with the idea that I must just “hate guns” (and by implication, gun owners), as if the rights of guns are more important than the safety and security of the country. It’s funny to me that the very folks who love to remind everyone that “guns don’t kill people; people kill people” and that “guns are just inanimate objects” are usually the first to anthropomorphize guns as capable of being “loved.”

          Owen, like millions and millions of Americans, I’m totally cool with you owning a gun. Don’t take it personally, though, when I propose measures to decrease gun ownership and availability. For twenty-plus years, we, as a country, have been manipulated by a gun lobby that has suggested, despite the blatantly obvious, that the more guns we have, the safer we become.

          I’m sick and tired of this drivel. You like shooting your gun? Great. You should have no problem with what is being proposed.

          But if you want to shoot a military-grade weapon with a high-capacity magazine, join the military.

          1. Lamar,

            I’m hardly an expert on guns, but your recommended reforms indicate to me that you scarcely know them at all. First of all, you say that we banned all semi-automatic firearms between 1994 and 2004. Well, no we did not. Forget about technical jargon; you aren’t even familiar with the actual laws.

            Banning all semi-automatic firearms would be a huge sea-change. The 1994 Assault Weapons Ban only banned semi-automatics with certain characteristics, many of which were superficial at best. Most semi-automatic firearms were not defined as “assault weapons,” and those that were fell victim to criteria that were often trivial or cosmetic and had little to nothing to do with firepower (accessories like a folding stock or a flash suppressor). Thus, you are proposing something vastly more extreme and sweeping than the 1994 AWB, which was frankly a pretty silly and ineffective piece of legislation.

            But here we have you on record just saying that you want it to be more difficult to buy a gun for the sake of making it difficult to buy a gun. I’m not suggesting we anthropomorphize guns, but when your proposed policies seem to be more about making things more difficult for gun owners absent a clear link to safety, I begin to think that maybe you just hate guns.

  3. Owen, the reforms I outlined aren’t my original ideas. They’re laws that are already enforced in nearly every single industrialized country on the planet (with the exception of firearm microstamping, which is a promising new technology). To be sure, these proposed reforms are actually significantly less restrictive than the laws in other industrialized nations.

    With respect to the Senator Feinstein’s 1994 bill banning semi-automatic weapons: I’ve read studies about how it was only marginally effective (and that it would have been much more effective if it had included bans on high-capacity magazines, clips, and belts), but until now, I’d never heard a pro-gun guy acknowledge that it was doomed by definitional language that gun manufacturers could easily exploit. Kudos to you for your candor. I understand Senator Feinstein is well-aware of this line of criticism and that the bill she will be introducing within the next few days is much more precise (you may say “extreme;” I think “precise” is a better word).

    Finally, regarding my personal relationship with guns: I’m agnostic. I don’t “love” guns, and I don’t “hate” them either. I think our military and our police should be equipped with the resources they need to ensure for our safety, and one of those resources, particularly for our nation’s police officers, is ensuring that high-powered, military-grade assault weapons are something they should never have to encounter while doing their jobs.

    Look, I know you’re a lawyer, and it’s fun to live and breath abstract legal theory, attempting to discount the opinions of people with whom you disagree with quotations from the Federalist Papers or your opinions of the statutory construction of the Assault Weapons Ban. I get it. I’ve been in law school for the last couple of years, and before that, I worked around a bunch of lawyers for the previous five years.

    But get real.

    You’re 20 times more likely to die in the United States from a gun murder than in any other industrialized country in the world.

    Since the beginning of the wars in Iraq and Afghanistan, we’ve lost more than three times as many people here at home from gun murders than we’ve lost on the battlefield.

    87% — 87%!!!- of teenagers who die from guns are Americans.

    And now, we are plagued by an epidemic of gun massacres perpetrated by people brandishing assault weapons in our shopping malls, movie theaters, office parks, and schools, even elementary schools.

    This isn’t about hating guns or gun owners. It’s not about your theoretical right to own whatever the hell you want to own; it’s about protecting the safety and security of our country. If you can’t already understand that– if you can’t understand that is the reason why people want to enact sensible gun control, if you can’t understand that, yeah, maybe it’s not a bad idea to make guns harder to access, then, with all due respect, you’re being willfully ignorant; you’re living in your own headspace. You’re not being serious; you’re being flippant, dismissive, and unnecessarily defensive.

    We’ve tried your way for the last twenty years. We’ve rescinded the assault weapons ban, which you acknowledge was fatally weak from the get-go; we’ve relaxed our laws on gun possession in federal parks, on trains, and, in Louisiana (thanks to Bobby Jindal), even in places of worship. And the massacres continue; gun violence in the United States is disproportionately greater than any other country in the world. We own more weapons, per capita, than any other country except Yemen. Gun violence in the United States has become like a malignant cancer, rapidly metastasizing before our very eyes. And yet, if you listen to the gun lobby, our problem isn’t that we have too many guns; it’s that we have too few. So America, this great beacon of hope, freedom, and democracy, a shining example of exceptionalism for the rest of the world, looks at the cancerous epidemic of gun violence and, instead of seeking for a diagnosis or a treatment, we are advised by the gun lobby that the real problem isn’t guns; the real problem is that we dont have enough guns.It AIN’T OVER, ya’heard.

    1. Lamar,

      I have a problem with what you’re arguing right from the get-go because you argue about “gun violence” in its own category. On the other hand, I would argue about “violent crime” or “crime” in general. When you break it down that way, you find that the correllation between the strictness of a nation’s gun laws and its rate of violent crime or just crime in general is weak to nonexistent.

      I think what you are proposing is that we do the same thing the U.K. did during the Dunblane Massacre in 1996, which is enact sweeping gun control measures in response to a single school shooting and expect those measures to decrease violent crime. That hasn’t worked in the U.K. The U.K. has a far higher rate of violent crime and overall crime victimization than the U.S. Heck, even gun crime has increased since the 1990’s in the U.K. Although this doesn’t prove that gun laws are wholly ineffective, it sheds doubt on the notion that they are a major factor. I see no reason why we wouldn’t just repeat the U.K. experience.

      More than that, I do see the owning of guns, including semi-automatics, as being an individual right. I don’t believe in trading away rights for the sake of highly dubious promises of increased safety, particularly when doing so would result in countless gun owners being jailed if they refuse to comply with the new laws — doing nothing that hurts anybody, i.e., simply owning a particular gun.

      Finally, even if we do go down this path (and I don’t think we will), I want it to be clear that this is not just about a more “precise” gun ban but a more sweeping one, and one that almost certainly runs afoul of the Second Amendment.

      1. You’re absurd. First, you tell us that the Second Amendment intended for the entire population to be a “well-regulated militia,” which therefore gives you the right to unfettered gun ownership. And now, you’re suggesting that there’s no correlation between gun laws and violent crime (because you really don’t want to talk about gun murders).

        When you get your head out of the clouds, come back and join the conversation.

        1. Lamar,

          I’m not saying that there’s necessarily no impact, but I am saying that any correlation between crime and the strictness of gun laws is far from established. Look it up — the U.K. has a far higher violent crime rate than the U.S., and it has actually gotten worse since they banned handguns. Even gun crime, never quite as prevalent in the U.K. as the U.S., has gotten slightly worse.

          I think you’re the one with your head in the clouds insofar as you believe that a link between strict gun laws and violent crime is self-evident. Meanwhile, the rest of society is still debating that and many are coming to conclusions quite different from yours.

          1. Lamar,

            Toobin is either grossly ignorant about this subject or simply intellectually dishonest. Yes, the Second Amendment originally only applied to the federal government. So did the First Amendment, which was originally only understood to prohibit the federal government from passing laws respecting an establishment of religion. States could go hog wild.

            I gather Toobin would claim that the Second Amendment is somehow different, but it expressly guarantees “the right of the people,” not the right of state governments or of members of select armed forces. This dovetails with the talk of the “militia” in the preamble because the militia was the whole body of the people capable of bearing arms. Toobin’s argument seems to be that we don’t know what a “state militia” is when it’s pretty clear that we do. He either isn’t aware of the historical evidence, particularly the Militia Act of 1792, or just doesn’t care. In any case, the amendment doesn’t say “the right of state militias” it says “the right of the people.”

            Furthermore, the Second Amendment was specifically referenced in Congressional debates when the 14th Amendment was passed incorporating the Bill of Rights against the states. In order to apply the Second Amendment against the states, which is clearly required by the incorporation doctrine, you have to interpret it as an individual right. Of course, Toobin doesn’t get into the issue of incorporation because he’d lose. He might as well argue that the Mormon Church can be declared the state religion of Utah for the all the sense it would make.

            I think guys like Toobin think that the Second Amendment is bad policy so they willfully obfuscate to make it appear that it means something other than what the plain language indicates. I have zero respect for that.

    1. Will,

      It’s not a matter of gun shows so much as private sales in general. People who aren’t dealers in firearms and don’t sell them across state lines aren’t required to have a Federal Firearms License and perform background checks. This could be a guy who sells a gun to somebody he ran into at a gun show or who otherwise sells a gun to a friend or acquaintance. However, almost everyone who rents a booth at a gun shows is a regular dealer in guns and thus an FFL holder. Accordingly, the overwhelming majority of sales at gun shows go through background checks.

      The problem with regulating private sales is that, first of all, it’s a bit impractical since they are so informal, and secondly, that private sales (as opposed to illicit sales) just aren’t a major source of sales of guns to persons barred by law from owning firearms. They usually involve gun collectors trading and selling amongst themselves, and it would place a major burden on these transactions to require them to be handled the same way as an FFL transaction without much gain for safety.

        1. Lamar,

          That’s ridiculous; it’s based on an unsubstantiated statement by Mayor Bloomberg. The 40% figure comes from a 1997 survey of gun owners by the National Institute of Justice (using numbers from 1993 and 1994) which concluded that roughly 60% of gun transactions involved an FFL with a background check, while the rest involved non-FFL sources (i.e., private sales, inheritance, gifts, etc.). Only 4% came from gun shows and the survey did not split up the data to show how many of these involved FFL dealers.

          The ATF did a study in 1999 reporting that 50% to 75% of vendors at gun shows have FFLs, which is a very broad range and the ATF provided no data on those numbers. It also didn’t say whether it was referring to “gun vendors” or non-firearms vendors at gun shows (from personal experience about half to a third of the vendors at gun shows are actually not selling guns or ammunition but rather things like holsters, military surplus, knives, etc. Some are also just selling antique firearms which I believe are exempt from FFL requirements.

          Personally, I’ve never run into somebody renting a table at a gun show for the purpose of selling guns without an FFL; I’m fairly certain ATF regulations dealing with gun shows require an FFL to set up a table if you are dealing in guns and thus required by law to have one.

          The issue with gun shows, rather, is the phenomenon of individual gun owners meeting up and trading or selling on a one-time of otherwise limited basis. That’s a private sale, but I’ve seen no study that suggests they make up a substantial percentage of sales at gun shows. Everything else requires an FFL and a background check.

  4. Who cares what the original intent of the Constitution was? Automatic weapons didn’t exist when it was written, and besides, the original intent of the Constitution was only to allow white, landowning males greater autonomy anyway.

    It’s not this sacred, unquestionable document. It was the best foundational set of principles we had for a government close to 250 years ago. We are allowed to refine it in response to our evolving world and our evolving morals.

  5. While we sit here as YEARS go by, this ridiculous argument over the misinterpreted 2nd Amendment carries on & no reform takes place. This is exactly what the NRA & their fat – cat cronies want.
    The simple fact of the matter is Lamar was spot on with every response to Owen’s inane blathering.
    It has become so tiresome to attempt to explain to these people that obviously failed basic Civics in High School that they (nor the NRA, their PACs, their proponents and anyone else with tons of money or the lack of conscience needed to threaten, bully or actually perpetrate violence on another human being) do not have the latitude to “interpret” the 2nd Amendment to suit their purposes.
    It is painfully apparent that they are too caught up in having to be right meaning both correct and conservative) that they cannot listen to reason nor have an ounce of compassion. I actually argued with someone who had the audacity to say the father of a child shooting victim didn’t have enough understanding of his sons case to be able to say the NRA is partially to blame for the ease in which his sons murderer obtained a weapon. There is NO question that this man is qualified to speak about his sons murderer; yet a COMPLETE stranger presumes he knows better based on a few paragraphs of reading?
    Suffice it to say it is absolutely SHAMEFUL (sinful if you are religious) that Americans think this unabashed hate speech, terrorizing of fellow human beingd and lack of sympathy or empathy is present. And over what? Your right to carry your boomstick in public? Why do you need a gun at the mall, grocery store or church?
    What is wrong with Americans?
    It is clear as day – just observe how people act.
    Where is the love we are supposed to show each other?
    I seriously doubt it would be purchasing an assault rifle – or any gun.
    Thank you Lamar for your concise and insightful answers to the typical hogwash argument used by the pro-gun group in the US.

    I assume you have not actually READ the 2nd Amendment? ”
    “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
    Now – the EXPRESS purpose of the 2nd Amendment is and always was to support the government in the event the military is unable or unavailable to do so. That is when the militia comes into play. Period.
    The majority of us, who ARE NOT comfortable with the idea of open carry, obviously hostile, violent in many cases (as has been captured time and time again on video and posted on the Internet for all to see) and last but certainly not least – most likely need to be medicated people going everywhere with loaded weapons people. It’s a recipe for disaster.
    Best regards & thank you!

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