American Exceptionalism

First reports were, as usual wrong.

NBC and CBS identified the wrong person as the gunman.  He did not bring with him a semi-automatic assault weapon.  He had only a shotgun when he arrived.  He left the service with an honorable discharge, not a general discharge.

That's a consequence, at least in part, of the public's perfect willingness to accept rumor as fact and the media's conviction that satisfying the public's thirst for information is as well-satisfied by false information as true.  (And, by the way, I wouldn't guarantee that the current facts as I gave them in the previous paragraph are true. Caveat lector.)

In any case, the errors - careless, dishonest, whatever - aren't really to the point.

The point is that some guy (presumably Aaron Alexis, but I wouldn't bet the farm on it) entered the DC Navy Yard Monday morning and killed 12 people.  And he, himself, was then killed by the police.  Add it to the list.  

• Sandy Hook elementary school, 27 dead, 2012
• Aurora, Colorado, 12 dead, 2012
• Seal Beach, California, 8 dead, 2011
• Tucson, Arizona, 6 dead, 2011
• Binghamton, New York, 13 dead, 2009
• Omaha, Nebraska, 8 dead, 2007
• Virginia Tech University, 32 dead, 2007

That's just a not-quite-radomly selected list.  And just from the last few years.  And of course doesn't include the wounded who didn't die.  Or the merely terrified.

Someoneorother on the Diane Rehm Show yesterday said that of the 25 deadliest mass shootings of the last 50 years, 15 happened in the U.S.  I don't know if he was right, but nobody disputed the point.

American exceptionalism indeed.

And so 

SOMETHING MUST BE DONE.

There are, after all, dozens if not thousands of people in and around DC who are, as I type this, planning to take a shotgun into the Navy Yard and see how many people they can kill before the cops kill them.  Bar the gates!  Protect the women and children!

Put aside the question of guns.  People who want to kill a lot of more-or-less random people regularly find ways to do it.

Put aside the matter of mental illness.  Most people with even serious mental illness aren't dangerous.  And we're not particularly competent at figuring out who actually is dangerous.

Put aside the rush to prevent the last crime.  Mass shootings (mass killings of any sort) grab headlines and attention not because they're common but because they're rare.  Sure, they kill a lot of people at one time, but as anyone who actually looks at the data rather than the headlines knows, your children are a lot safer in school - and were a lot safer in school before the additional security measures following on Columbine and Sandy Hook - than they are going from home to school or school to home.  Military bases in the U.S. are remarkably free of murders despite what happened at Fort Hood.  There's really no need for metal detectors at the entrances to shopping malls even though there was a mass shooting at one. 

Risk assessment folks understand this.  We fear the wrong things, and because we fear the wrong things, those are the ones on which we expend our resources and energy.

That's not to say that we should go around arming the insane.  It's to point out that there's no reason to make me take off my shoes and throw away my bottle of water before passing through security at the airport.  The pretense of security may make a few people feel better, but it's pretense.

Security theater rather than security.

Understand, I'm not saying that we shouldn't try to control the proliferation of guns.  I'm not saying that we shouldn't do a better job of identifying and treating the mentally ill.  I'm not saying that we shouldn't try to implement real security commensurate with the levels of real threat.

What I'm saying is that there's a real question that needs to be addressed - with actual information (which I confess that I don't have) rather than gut feeling or random guesswork:

Why do we have so many people running around who want to kill and hurt other people?  What is it in the DNA of our culture?

When we can answer that, we're on the way to knowing what to do that will really make us safer.

Until then?  

I suggest moving to a cave.

We Must Do Something

Ronald Reagan said that the most

terrifying words in the English language are: I'm from the government and I'm here to help.

He was wrong, of course. 

The most terrifying are the ones spoken so movingly yesterday in a Senate hearing by Gabrielle Giffords.

We must do something.

She didn't say what as she read slowly, haltingly from a handwritten sheet of paper, skipping one word, changing another.

 
She didn't say what because . . . . Hell, I don't know why.  Because she doesn't know what? Because it's more than she can articulate since she was shot? Because it doesn't matter?

Violence is a big problem
Too many children are dying
Too many children
We must do something

You know, for the children.

She's right.  Violence is a big problem.  And too many people are dying.

Too many adults.  Too many kids.  Too many people on the streets and in the schools and the workplaces and the prisons and god knows on the highway.  Too many people in Tennessee and Texas and Montana and Michigan and Ohio and Oklahoma and in Chicago and DC and at a strip mall in Arizona and a movie theater in Colorado and a college in Virginia and an elementary school in Connecticut.  Too many people in Kabul and Damascus and Tel Aviv and Bangkok and Bolivia and Somalia and in Mexican towns near the Rio Grande River. Too many people in my neighborhood and in yours.

It's really awful.

David Clarke is the Sheriff in Milwaukee County, Wisconsin.  His solution is to tell people to get themselves armed to protect themselves because the cops can't or won't do it.  Calling 911 won't work.

Wayne LaPierre wants more guns, and more law enforcement.

Diane Feinstein wants fewer guns.

New York wants just enacted a law designed to require fewer bullets.

Or maybe it's more cops or more tanks or more drones. Maybe it's better background checks or mental health services or more tax dollars or fewer.  Maybe it's Obamacare or the fact that A-Rod's lying again (if he is) about performance-enhancing drugs or that Beyoncé fessed up to lip-synching the national anthem. Surely it's more laws creating more crimes. And more criminals.

We must do something, though.  Even if it won't make a difference.  Even if we have no idea what will or will not make things better.  Even if we can't even agree on what better would mean. Even, god help us, if it might make things worse.  Because, you know.

We must do something.

The aftermath of tragedy is the absolute worst time to do anything.  That's when we can't think clearly, when we don't.  When we act for the sake of acting.  Machismo at its absolute worst.

We must do something.

OK, here's something.  Take a deep breath.  Let it out slowly.  

Repeat.

Dealing with the Distraction

I really didn't want to write this post.  What I wanted to do was write about A Wilderness of Error: The Trials of Jeffrey MacDonald (I'd promised in a comment here that a review was coming) and pursue in epistemological and practical and legal terms questions of truth, belief, knowledge, and proof.

And I will do that.  Just not today - in fact, probably not till after the new year.

Because it seems that for right now I have to talk about guns.  I don't want to.  Really I don't.  But there's just no getting around it.

It starts with Norm Pattis who explained the other day that he wants to go after guns and gun owners and gun manufacturers, to regulate them like we regulate cigarettes* with the goal of eliminating all or nearly all guns.  That led Matt Brown to respond by pointing out that guns are a mechanism, but if we want to find ways to prevent the sort of thing that happened at Sandy Hook Elementary (or a movie theater in Aurora or a strip mall near Tucson or a university in Virginia or a high school in Columbine or a sign manufacturer in Minneapolis or a church in Pennsylvania or a mall in -- my god this happens a lot) we have to get at causes not just tools.

So let's talk about causes for a bit.

Here's what little we know for sure.

1. Most people don't go on killing sprees, don't become mass murderers.  Really, they don't.  And in fact, most of us will never be at more than a theoretical risk from someone who does.  (The theoretical risk is that it can happen anywhere, anytime, so in theory we're all at risk, though the risk is vanishingly small - which is, of course, no comfort to those for whom the risk becomes horrifyingly real.)
2. Some folks want to call the people who do those things evil, but that gets us nowhere, tells us nothing useful.  Call them evil and there's no point in looking for cause.  They just are.  The Bad Seed.  There's nothing to be done. Might as well sit back and let God zap 'em.  Except She doesn't. 
3. The people who do this stuff, have mental health issues.  Maybe something that falls neatly into a DSM category.  Perhaps psychotic delusions or acute depression or.  Maybe a chemical imbalance.  Maybe it's just a build up of stress.  But no one who's functioning in a healthy way gets up in the morning, takes a shower, has a bowl of Cheerio's or a couple of eggs, and then heads out to commit mass murder.
4. These events seem to be happening with greater frequency.  And they happen more often hear than anywhere else in the developed world (and perhaps in the whole world).
5. Typically, these spree killers are using what we've broadly, if not precisely, called assault weapons.  We're talking firearms, and there are a whole shitload of them out there.  The current estimate seems to be that Americans have somewhere between 250 and 300 million guns.  That's a bit under 1 for every man, woman, and newborn still in a bassinet.

That last point is true enough, but it's also a distraction.  Yes guns are a problem.  But they're not the problem.  The problem is that there are too many folks running around wanting to kill whole bunches of other people.  The problem is that we have crazy people who live in a world (partly of their own imagining) where extraordinary violence seems like a good way to deal with problems.

So we've got a culture of violence and people with serious mental health issues and some small number of them (and the number is small) decide to go postal.  (And you'll remember where that term came from.)  Ready access to guns that can shoot a whole lot of bullets without reloading makes those few people extraordinarily dangerous.

But for the determined mass murderer, restrictions on assault weapons won't much matter.

1. Mohamed Atta used an airplane.
2. Derrick Bird used a shotgun and bolt action rifle.
3. Walter Seifert used a flamethrower and a lance.
4. Andrew Kehoe used bombs.
5. Julio González set a fire.
6. Aum Shinrikyo used sarin gas.
7. Anders Behring Breivik used both a bomb and assault guns.

As I've said a few times here (though not recently), "I grew up a Jewish kid from New York, and I don't like guns."  I also think that Scalia, for perhaps understandable reasons, got Heller wrong - not that he reached the constitutionally wrong result, that his explanation was wrong.  Which also means that his (and the Court's) explanation of what an originalist (of any stripe) interpretation of the Constitution's prohibition is wrong.

The purpose of the 2nd Amendment isn't to allow people to protect themselves from their predatory neighbors (or from grizzly bears, which Kennedy brought up THREE fucking times during oral argument) or to hunt or shoot skeet or even to fend off Indians.  The purpose was to allow for revolution.

It's precisely the sort of weaponry that even the Scalia's would ban that's the sort the second is designed to allow.  Fighter jets, predator missiles, tanks - you get the idea.

That much said, it's absurd today, and virtually nobody will allow for that.  Which is why Scalia and the Court wouldn't even consider going there and pretty much said those sorts of things can certainly be prohibited.

But if the purpose of the second amendment is self-defense and hunting and sport shooting (and regardless of the framers' language or original intent or original meaning or purpose or whatever, that's the purpose according to SCOTUS), then it would seem to follow that anything which does not reasonably advance that purpose can be closely regulated and even prohibited.  (We can argue around the margins of what weaponry does reasonably advance the SCOTUS-approved purpose of the Second Amendment.)  

It wouldn't get the guns off the streets or out of the homes. It's purely fantasy to imagine that Congress would ever pass gun control legislation that doesn't include some grandfathering.  There'd still be 250-300 million of them out there, and more to come. And the vast majority would be, as they are now, in the hands of sane, responsible folks. But the government could, were it so inclined, make it harder to get them - and get access to them. It's at least marginally possible that they'll actually restrict the sale of high-capacity magazines and the guns that can handle them.

Would that prevent mass killings? Certainly not all of them. Might it stop one now and again? Probably. And it would likely reduce by some number other odd killings and injuries. Not a bad thing.
 
Of course, there's that other approach, too. Wayne LaPierre laid it out at his press conference.

I call on Congress today to act immediately, to appropriate whatever is necessary to put armed police officers in every school — and to do it now, to make sure that blanket of safety is in place when our children return to school in January.
. . .
The NRA is going to bring all of its knowledge, dedication and resources to develop a model National School Shield Emergency Response Program for every school that wants it. From armed security to building design and access control to information technology to student and teacher training, this multi-faceted program will be developed by the very best experts in their fields.

Former Congressman Asa Hutchinson will lead this effort as National Director of the National School Shield Program, with a budget provided by the NRA of whatever scope the task requires. His experience as a U.S. Attorney, Director of the Drug Enforcement Agency and Undersecretary of the Department of Homeland Security will give him the knowledge and expertise to hire the most knowledgeable and credentialed experts available anywhere, to get this program up and
running from the first day forward.

Now there's a plan.  Armed cops in every school.  A guy who ran the DEA and helped get Scope 'n' Grope up and running to protect our children.  Because school's aren't enough like prisons.  And school cops aren't already arresting, beating, tazing, and killing enough kids.

Lyndon Johnson is said to have explained why he kept Bobby Kennedy as Attorney General after President Kennedy was murdered.

Better to have the bastards inside the tent pissing out than outside the tent pissing in.

The truth is that schools remain remarkably safe places. 

Still, I'm all for greater gun control. I don't think any sorts of control I can imagine being enacted would do much to prevent future mass shootings. But even a marginal reduction would be a good thing. And some sensible gun control measures would also probably reduce gun violence generally.

If what happened at Sandy Hook Elementary spurs meaningful gun control, that's terrific. But it's also, as I said, a distraction. I believe what I've said about mental health. The folks who do this stuff need (needed) treatment. Either they didn't get it or they didn't get enough or the right sort. When our approach to mental health issues is to wait until something awful happens and then lock people up, we're really doing things backwards. 

And we really, also, need to go further and find ways to get at the root causes of violence. We are the most quotidianly violent of the developed nations. We don't have the drug cartels running around offing large numbers of our people, but we do have just lots and lots and lots of individual violent acts. When H. Rap Brown said "Violence is as American as cherry pie," he was exactly right.

But why exactly is that?  It's not because of movies and video games.  They're the way they are because of our enthusiasm for vicariously experiencing violence.  And it's not because we don't pray enough or because the 10 Commandments aren't prominently enough displayed in schools and courthouses.  Most of the rest of the developed world is far more secular than the US.  And far less violent.

Part of the answer is surely our frontier heritage.  But there's more.  And we need to understand it and address it.

The NRA used to say (maybe still does)

Guns don't kill people.  People kill people.

That's a lie of course.  Guns kill people all the time.  The thing is that they don't do it volitionally.  We can make people safer by making the tools safer.  But we won't really solve the problems until we find ways to get at their root causes. All those folks who, in their fuckedupedness decided to kill whole bunches of folks.  They didn't decide that because there were guns around.  They went and got the guns after they had the idea. It's having the idea we really need to deal with.

We need to decriminalize mental illness.  Destigmatize it, too. 

And then we need to work on just why we're so violent a people.  

If we make access to guns a bit harder along the way, that's not a bad thing.  But if we think it's the answer, we're in for a real disappointment.  And a lot more blood.


Baby Blues - by Rick Kirkman, Jerry Scott

------------------------

*Norm's suggestions for gun control actually bear no relationship to the way we regulate cigarettes.  We tax the hell out of a pack of Winston's, prohibit (more and more, depending on where you are) where it can be smoked, don't allow certain kinds of advertising (though as I recall that was a voluntary concession by the tobacco companies - if I'm wrong, tough, I'm not bothering to look it up), require a warning on the pack saying they're dangerous and insist that nobody under 21 can buy it.  Smoking is down, but the tobacco companies aren't out.  If instead we said that every time someone dies of lung cancer every smoker has to cough up a $5,000 fine and some tobacco company must pay 250K, which is exactly what Norm suggests for the firearms manufacturers, the tobacco companies would be out of business in a week.  And the numbers of homeless and desperate would increase exponentially.  Of course, Norm's goal is to prohibit all guns.  But the analogy to cigarettes is, well, I like Norm so I'll call it disingenuous rather than dishonest.

Cold, dead hands revisited

So I'm reconsidering. (It's a bit too soon to say "overruling.")

Two weeks ago, in a post discussing District of Columbia v. Heller and the Second Amendment, I argued that while the Court was right in Heller to conclude that the Amendment guaranteed an individual, not just a collective right to bear arms, it was wrong in it's analysis of the purpose behind the right. I said it wasn't for self-defense against random bad guys or marauding indians or grizzly bears. It was for self-defense - and affirmative rebellion - both individual and collective, against the government itself. I still think that's right.

I also said, rather confusingly and then corrected, that I thought DC's handgun ban was lawful under the Second Amendment because, "You're not going to stop a coup d'etat with a .22 on the nighttable." That's the part I'm reconsidering.

Of course, the factual claim is correct. The .22 won't be much use in the sort of defense with which the Second Amendment was concerned. But the test of a limitation isn't whether it doesn't much help with a right, it's whether it's irrelevant to it. An armed citizenry is the whole point, and to say that the protections of the amendment provide only to powerfully armed citizens is just silly. You can have a tank but not a pistol? I don't think so.

Which takes us to Plaxico Burress. You know, he's the football player who accidentally shot himself in the leg in a New York City nightclub with a gun he was, in violation of New York law, carrying in his waistband. He was arrested and has now been indicted on two counts of Criminal Possession of a Weapon and a single count of Reckless Endangerment. The possession charges are serious felonies.

For a while now, Doug Berman has been hammering the point that Second Amendment supporters ought to be rushing into this fray and arguing that New York's concealed carry law, which basically what's at issue here, violates the Second Amendment, especially in light of Heller. Scott Greenfield, who suggests he's no fan of concealed carry, signed on to the campaign today.

I made my general position clear two weeks ago: "I grew up a Jewish kid from New York, and I don't like guns." But like Scott, I do like the Constitution. And even if I weren't a fan, I think we need to hold the government to it. So what's the proper status of concealed carry as a mechanism for protecting yourself against the government?

Indeed, I might ask what's the proper status of concealed carry at all?

Yes, you can carry a gun. No, you can't be reckless in how you handle it. (Shooting yourself in the leg in a public place is, I think, reckless, which makes Burress properly guilty of a misdemeanor.) But why concealed?

Because we can? That's not an answer.

So businessmen and women can be armed discreetly, with guns in their briefcases rather than on their hips? No, that's not a constitutionally relevant reason.

So the government agents won't know who's armed and who's not and they'll have to think twice? Maybe. I'm open to plausible argument on that one.

For the time being, call me an agnostic on concealed carry laws.

FROM MY COLD DEAD HANDS

Let's get this part out of the way.

I love westerns, and the gunfight (really it was a duel) is a classic scene with which I'm comfortable and in which, when I was younger, I repeatedly fantasized a role for myself. But I grew up a Jewish kid from New York, and I don't like guns.

I had and played with lots of cap guns and an air rifle when I was a kid. I've shot a .22 a couple of times. I've held handguns with varying degrees of pleasure/fascination (mostly depending on my age). I've learned something about how firearms work as a criminal defense lawyer. But I grew up a Jewish kid from New York, and I don't like guns.

I think we'd be better off if they were completely banned. I hate the Second Amendment. I'm a fan of all sorts of gun control. Heck, I grew up a Jewish kid from New York, and I don't like guns. But I try and be honest about these things. The Second Amendment is part of the Bill of Rights. As such, it has as much clout as, say, the Fourth or the Eighth, both of which I like a great deal. It's the law of the land. And we're stuck with it.

The question, of course, is just what it is with which we're stuck. And that's what I want to talk about today, because the Second Amendment is, frankly, seriously problematic. The place to start any constitutional interpretation, as soon-to-be-Justice Sotomayor told us repeatedly last week, is with the language of the provision at issue. So here's what the Second Amendment says:

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.

Everyone gets that these words put some limitation on the ability of the government to disarm the population. But what sort of limitation?

The central legal issue of the Second Amendment has long been what to make of that initial subordinate clause, "A well regulated Militia, being necessary to the security of a free State." Is the right to bear arms limited to military and quasi-military forces (police and the national guard, say) or is it somehow an individual right? And if it is an individual right, how far does it go? Is any sort of gun control lawful? Can there be registration? Licensing? Waiting periods? Can there be places one can't go armed? Can there be prohibitions on assault weapons? So called "cop killer" bullets? What about a working tank in the back yard?

The ACLU, for all it's commitment (despite occasional and deeply troubling stumbles) to an expansive view of the Bill of Rights, has never seen the Second Amendment as particularly valuable. It's position has long been that the right it guarantees is collective, not individual. The NRA has taken the position, at least roughly, that the Second Amendment provides for an individual right and the right is essentially without limit. Scholarship has been, frankly, less than revealing. And there it's stood. But let me go back there for a second.

I've thought for some time now that the ACLU was wrong. If the Second Amendment provides only for a collective right, then it's essentially meaningless. Besides, the Amendment doesn't say that the militia's right to bear arms shall not be abridged. It's the people's right. But what then? And why?

Last year, the Supreme Court made an effort to give us an answer. In District of Columbia v. Heller, the Court told us that the right is individual though not unlimited and that D.C.'s ban on handguns in the home was unconstitutional. That's fair enough, and it's probably the right result. But, frankly, it's also problematic, and that's what I want to say something about. To be clear, there are three rulings in Heller:

1. The Second Amendment guarantees some form of an individual right to bear arms.
2. The individual right guaranteed by the Second Amendment is not unlimited.
3. Whatever limitations on the individual right to bear arms may be permitted by the Second Amendment, D.C.'s expansive ban on handguns in the home exceeds them.

Let's take them in turn.

The Second Amendment guarantees some form of an individual right to bear arms.

Although surrounded by a wealth of historic citation and analysis, it seems to me that both Scalia's majority opinion and the dissent on this point by Stevens miss the point.

Stevens sees in the Amendment no more than the rights of the individual states to maintain armed militias should they so desire. They no longer do. The Amendment is then but a historic artifact rather like the Third, a matter of great moment when enacted, a museum piece today.

Scalia, writing for a majority intent on assuring that the D.C. ordinance should be held unconstitutional, sees in the reference to the militia a statement of but one purpose for the right to bear arms. People in revolutionary times would have used weapons to protect themselves if they had weapons and were assaulted. (As Dahlia Lithwick pointed out, Kennedy seemed to have a particular concern with the need for people to protect themselves from Grizzely Bears.) That's not inconsistent with militias. Therefore, such self-defense is a purpose of the Amendment.

I think it's both simpler and more troublesome than that. The point of the militia, as the languge of the subordinate clause makes clear, is to ensure "the security of a free State." I take "State" here to refer not to the individual states but to the polity. It is essential for a free society that there be a militia (well-regulated so that it be competent to do the job), rather than (or in addition to) a standing army.

The only sensible way to read that is that the free people must be able to protect themselves (itself?) against the government. That's what a militia can do that a standing army cannot. The fear was that the federal government would come and take away Charlton Heston's rifle leaving him unable to protect himself from that government. There's the source and need for an individual right to bear arms.

The people may, at any time as the Declaration of Independence says (see discussion here), have a duty to overthrow the government again and start anew. The government may try to prevent that by disarming them. The Second Amendment says the government cannot do that.

That reading puts a different spin on the discussion of whether the right is limited or unlimited, and if so, how.

The individual right guaranteed by the Second Amendment is not unlimited.

When I've been called upon to speak to the Second Amendment over the years, I've mostly said what Scalia concludes: I believe the Second Amendment sets out an individual right to bear arms, but like very other provision of the Bill of Rights, it's subject to reasonable regulation, whatever that might mean. When pressed, I've resorted to hyperbole and said that the government can prevent me from keeping nuclear weapons in my back yard.

Breyer, as the champion of the administrative state where if the government's regulatory motives are beneficent, the Constitution must be understood to permit its actions (see discussion here), makes the last part of that argument. If it should be that individuals have a right to keep arms, he says, the government can surely limit that right for the greater good. So, for instance, D.C. can say,

Well, you have a right to bear arms, but it's too dangerous for people in the city to do that, so here you can't. You know, the framers wouldn't have actually made the right applicable in the urban jungle if they'd known about it, so we should feel free to say it just doesn't apply here.

I think that's pretty clearly untenable. Scalia, rightly rejecting that position, finds a long-standing tradition of limitations on the right to bear arms. Those limitations, he says, are presumptively valid, and he offers what he says may not be an exclusive list:

[N]othing 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.

As a self-described originalist, if those limitations have the pedigree Scalia says they do, he can plausibly accept them. (Thomas, who is rather a textualist, when he's adhering to his formal analytical model for judging, should have a harder time, since the Amendment by its own terms allows for no abridgment, but he joined Scalia's opinion.) But the question is, really, why any limitations, and if any, why those?

Do felons not have the right to self-defense? And why should "conditions and qualifications on the commercial sale of arms" be allowed? Aren't commercial sales as consistent with the existence of the militia as the right to self-defense? Is there any princple at work here other than "it's been the law forever"? And on that principle, why should we overturn the forever law and declare the underlying right an individual one?

Whatever limitations on the individual right to bear arms may be permitted by the Second Amendment, D.C.'s expansive ban on handguns in the home exceeds them.

A partial answer is that if the Second Amendment is exclusively about allowing the free people to keep arms to protect themselves from the government - and to overthrow it when necessary - then limitations which don't infringe that are just fine. Felon in possession laws? Sure, what difference does it make to our ability to hold the army at bay. But if that's OK, then so is the DC handgun ban. You're not going to stop a coup d'etat with a .22 on the nighttable.

On the other hand, if that's the purpose, then the conditions and qualifications on commercial sales of armaments are probably unconstitutional. We need those sales.

All of this is to say that the Court got the right answer the wrong way. But there's another step. And here's where I get really uncomfortable with my own analysis.

If the Second Amendment means what I think it has to mean. If the Second Amendment guarantees the people the right to bear arms in order to prevent the government from becoming tryranical. If the Second Amendment is there so that free Americans can protect themselves from an oppressive government and so that, in a pinch, they can fulfill the duty of revolution and overthrow that government. If all that's so. Then my hyperbolic, jokey response about how, whatever limitations there may be on the Second Amendment right, the government can surely prevent me from keeping an atom bomb in my backyard, is simply wrong.

The framers couldn't have imagined what they were doing because they couldn't imagine the weaponry of today. But if the Second Amendment guarantees the people the right to keep and bear arms so that they can resist, and even overthrow the government, it must guarantee them the right to keep and bear arms of the sort that can, at least in principle, carry out that task. If the Feds can have a Patriot Missile, so can I. In this day and age, a blunderbuss won't do the job.

That's the principled argument no Justice had the courage to make.

The honest alternative (also one no Justice had the courage to make) acknowledges but refuses to obey the principle. It goes like this: Although the framers adopted the Second Amendment to allow the people the means to keep the government at bay and overthrow it if things got too bad, today's weapons are so dangerous that the right cannot be enforced. Therefore, although the Second Amendment is part of the Constitution, it's a part we must ignore because it's too risky to acknowledge.

Like I said, I grew up a Jewish kid from New York, and I don't like guns. But I think I have a right to a tank.

CLARIFICATION AND ADDITION

I just (morning of the 24th) read over what I wrote, and found that I both declared the D.C. home hangun ban perfectly proper because it doesn't infringe on the right to arm oneself to overthrow the government (" You're not going to stop a coup d'etat with a .22 on the nighttable") and said that the Court got the right answer (it's improper) albeit for the wrong reason.

The Court was right about the individual right to bear arms - a right I think much broader and more radical and more dangerous than the Court allowed - and wrong about the D.C. handgun ban because it doesn't infringe on the nature of that right. At least, that's my position unless I'm going to become a strict textualist, and I'm not there. (On the other hand, it's taken me decades to reach this view of the Second Amendment, so who's to say.)