Tag: gun control

RIP Don Kates, Second Amendment Pioneer

Don B. Kates, a pioneer in the revival of the Second Amendment, has died at 75. Eugene Volokh writes in the Washington Post that 

Don wrote “Handgun Prohibition and the Original Meaning of the Second Amendment,” 82 Mich. L. Rev. 204 (1983), the first modern article in a major law review arguing for the individual-rights view of the Second Amendment, and since then he wrote or co-wrote over 15 more law review articles, as well as writing, co-writing or editing four books. His work has been heavily cited both by courts and by scholars.

His writing career may have begun with Inquiry magazine, published in the 1970s by the Cato Institute. His article “Handgun Control: Prohibition Revisited” appeared in Inquiry’s second issue, December 5, 1977. For some reason that piece appears to have been excerpted in the Washington Post three years later.

Libertarian movement historian Brian Doherty expands on his seminal influence:

As explained in an excellent 2014 essay on Kates’ contributions to modern Second Amendment thought by California-based gun law scholar C.D. Michel, “Kates was a nearly lone voice in the constitutional law wilderness….Kates’ work, both as a constitutional scholar and criminologist….largely ignited the counter revolution against the American gun control movement” by arguing and demonstrating that the Amendment was certainly intended to protect an individual right to possess weapons.

Kates’ article became an ur-source to later articles by more academically well-connected authors, such as Sanford Levinson’s 1989 Yale Law Review article “The Embarrassing Second Amendment,” that spread the new understanding of that Amendment as guaranteeing an individual right to the more liberal side of legal academia.

As Michel notes, “All the scholarship that Kates indirectly ignited eventually fueled legal briefs filed before the Supreme Court in District of Columbia v. Heller.”

According to Wikipedia, Kates grew up in the San Francisco Bay Area and later attended Reed College and Yale Law School. During the Civil rights movement, he worked in the South for civil rights lawyers including William Kunstler, an experience that informed his understanding of the need for armed self-defense. After three years of teaching constitutional law, criminal law, and criminal procedure at Saint Louis University School of Law, he returned to San Francisco where he practiced law and began writing on criminology and guns. Dave Kopel has more on his background and influence here.

Watch Don Kates talk about gun control in this 1989 speech at Libertarianism.org.

The Social Security Administration Shouldn’t Be Deciding Who’s Too “Mentally Defective” to Own a Gun

Unable to legislate new restrictions on what kind of arms can be sold, the government has embarked on a long-term effort of adding an untold number of Americans to “no buy” lists—based on the unfounded conjecture that they pose a “danger” to others—and deprive them of a fundamental constitutional right. The Gun Control Act of 1968 and NICS Improvement Amendments Act of 2007 requires that agencies with pertinent records on who is or is not “a mental defective” disclose those records to the attorney general so those people can be excluded from purchasing arms through the National Instant Criminal Background Check System (NICS).

The Social Security Administration (SSA) has proposed a new regulation that would create a process for transferring the records of those who seek a “representative payee” (legal proxy) under Social Security disability benefits programs to NICS, so that they may be considered a “mental defective” and thus lose their Second Amendment rights. The proposed SSA rule is arbitrary—there’s no evidence that someone who needs help with SSA paperwork can’t be trusted with a gun—and inconsistent with the regulatory and statutory scheme, not to mention blatantly unconstitutional.

Accordingly, for the first time ever, Cato’s Center for Constitutional Studies, with the help of law professors Josh Blackman and Gregory Wallace, has filed a public comment objecting to the rule on 10 different grounds. No one disputes that the government has an interest in keeping guns out of the hands of those who could harm themselves or others, but depriving a constitutional right requires due process of law. Under existing law, the root requirement of the Fifth Amendment’s Due Process Clause is that an individual receive a hearing before she is deprived of a constitutional right by a federal agency, one where the government must justify its restriction.

What Do Crime Researchers Say about Gun Laws?

The horrific massacre at the Pulse Orlando nightclub has prompted calls for new restrictions on firearms. Those calls are understandable—fight mass murder by restricting some of the tools of mass murder, the thinking goes—but would such restrictions really reduce violent crime? Or, in a country with a robust black market, would gun restrictions merely constrain the lawful, giving violent criminals greater opportunity for mayhem? 

To answer that question, researchers John Lott Jr. and Gary Mauser decided to ask the experts. They surveyed fellow academics who published empirical research on guns and violent crime in peer-reviewed academic journals over roughly the last 15 years. Specifically, Lott and Mauser asked about their perceptions of legal firearms possession’s associations with crime and suicide, and the effects of gun-free zones (which Pulse apparently was required to be, under Florida law) and concealed carry laws.

The respondents can be divided into two groups: economists (many of whom act as applied statisticians) and criminologists. The two groups differ in an important way: economists are much more mindful that policy changes can affect incentives and expectations. This likely explains the difference between the groups’ responses. Economists were highly skeptical of the idea that greater restrictions on legal gun ownership would reduce violent crime, while criminologists were considerably more mixed, with a lean (that sometimes wasn’t statistically significant) toward skepticism. Importantly for the current gun control debate, neither group supported the notion that more restrictions would reduce violent crime.

Lott and Mauser present their findings in the summer issue of Regulation. You can read the article online here.

Guns, Gay Persons, and Security, Before and After Orlando

Some work by Catoites responding to the lethal rampage by an Islamic State devotee at closing time last Sunday morning in Orlando’s LGBT-oriented Pulse nightclub: 

Writes Michael Tanner in his piece: “As Representative Justin Amash (R., Mich.) noted, he has heard ‘Democrats and Republicans endorse violating the 1st, 2nd, 4th, 5th, 6th, and 8th Amendments’ in response to the attack. About the only thing we are missing is a call to quarter troops in our homes.”  

And more: “Without self-defense, there are no gay rights.” Dave Kopel has a post today at the Volokh Conspiracy, “The history of LGBT gun-rights litigation,” citing the pioneering work of several scholars and activists whose name will be familiar to Cato readers, including Cato University director Tom Palmer, leading up to and following the landmark D.C. v. Heller individual rights case.

A No-Guns List Still Isn’t an Answer

Back in December, Senate Democrats, with President Obama’s backing, attempted to prohibit anyone on the federal government’s terrorism watchlist from purchasing a firearm.

At the time, I criticized the proposal for its lack of process and its inevitable inefficacy at reducing gun crime or terrorism.

Yesterday, Senate Democrats launched a filibuster in order to push for the resurrection of the failed “No-Guns List.”

The substance of their plan has not changed, and my earlier criticism still stands:

How does a person prove they are not a terrorist? It’s virtually impossible. A no-flyer doesn’t receive the evidence against them or a hearing before being placed on the list. They are not allowed to confront their accuser. Even getting the government to acknowledge that a person is on the list may require lengthy and expensive litigation. A person on the no-fly list may not even know they are on the list until they’re refused service at the airport. A person on the broader terror watch list has no means of finding out. The system is devoid of anything resembling due process, a flaw The New York Times condemned as being intolerable in a free and democratic society and over which the American Civil Liberties Union is currently suing the Obama administration. The no-fly listing procedure has already been declared unconstitutional by at least one federal judge.

Including too many people on the list is inevitable. Nobody wants to explain, after a terrorist attack, why the attacker wasn’t in the database. And that overly inclusive quality has manifested itself in absurd ways already. Just a few examples of no-fly denials: the late Democratic Massachusetts Sen. Ted Kennedy, congressman and civil rights hero John Lewis, dozens of people named Robert Johnson, members of the U.S. military and federal air marshals.

The potential for false positives and mistaken identities is not just accepted as collateral damage by these no-gun list proposals; it is the entire point. Anyone who has actually been convicted or is currently charged with terrorism-related crimes is already prohibited from purchasing a firearm under federal law. The people adversely affected by this proposal will inevitably be people against whom the government lacks sufficient evidence to charge.

The fact that a person hasn’t been adjudicated as dangerous doesn’t preclude them from committing violence, of course. But just how much discretion should the president have in abolishing constitutional rights without charge or trial?

What has changed is the political climate in the interim.

The No-Guns List appears to have picked up some powerful allies on the right.   Presumptive Republican presidential nominee Donald Trump has expressed support for the idea, and is apparently lobbying the National Rifle Association to come along with him. 

The GOP and the NRA are generally regarded as the two primary bulwarks against misguided gun control proposals.  Adding their weight to this particular gun control proposal would bolster its legislative prospects immensely.

Even if, as some supporters have urged, the law requires hearings before a watchlisted person can be denied the right to bear arms, important questions remain.  What exactly does the state need to prove in order to take someone’s 2nd Amendment rights away?  What is the burden of proof?  Will judges allow the use of secret evidence, citing state secrecy concerns for refusing to disclose it?  Will the individual be entitled to legal representation?  Can he call and cross-examine witnesses? Can he appeal the ruling? Can he publicly discuss his case?

And those are just the legal concerns.  There are also pragmatic issues. What information does the FBI convey to the gun seller when someone on the list is denied?  Is the gun seller told that he’s got a terror suspect standing in his store?  What if the person actually is an aspiring terrorist under government surveillance?  Doesn’t this process inevitably tip him off? Would finding out that he’s on the government’s radar only encourage an aspiring terrorist to act quicker? Would it compromise legitimate surveillance operations?

The Boston bombers didn’t need guns. Nor did Timothy McVeigh or the 9/11 hijackers.  Giving terror suspects a sure-fire way to figure out whether they’re being surveilled seems like a large price to pay for what may be a non-existent benefit.

Omar Mateen passed background checks.  He passed training requirements. He had access to weapons as a security guard.  He wasn’t even on the terrorism watchlist. Nothing in this proposal, and nothing in any of the other gun control proposals this tragedy has spawned, would have kept firearms out of Omar Mateen’s hands.  The only way his rampage could have been prevented was for someone to kill him first. Unfortunately, laws that deny even sober people the right to carry weapons in establishments that serve alcohol meant that the law-abiding victims were sitting ducks.

Knee jerk reactions to horrible tragedies have proven to be a poor basis for good public policy.  We have institutions like due process precisely for times when emotions threaten to overrun safeguards that are just as important for protecting the innocent as the guilty.

It’s hard to imagine a graver violation of the spirit of the 2nd Amendment than a law allowing the President to declare anyone an enemy of the state without so much as a charge and subsequently bar them from exercising their 2nd Amendment rights.  But Republicans, lured from their stalwart support of gun rights by fears of terrorism, and Democrats, lured from their stalwart support of civil rights by their zeal for gun control, combined with an election cycle that has been defined by appeals to fear may be creating a perfect storm and a severe threat to liberty.

P.S. Two tweets this morning from sitting Congressmen highlight the divide.

Democratic Senator and gun control advocate Joe Manchin doesn’t inspire confidence when he says things like “due process is killing us.”

Luckily, not everyone in Congress agrees.

President Obama’s Gun Controls Didn’t Make Kalamazoo Shooting More Difficult

Last week, a man in Kalamazoo, Michigan went on a shooting rampage, killing six people seemingly at random.

The suspected shooter is a man named Jason Dalton, who reportedly owns several firearms.  Up until this point, Dalton had no criminal record and has apparently never been adjudicated mentally ill.  In legal terms, this means that Dalton would have had no problem passing a background check to purchase his firearms.

Despite this fact, President Obama took time this week to suggest that his gun control measures make it more difficult for would-be spree shooters to acquire firearms.

Speaking to the National Governor’s Association, President Obama claimed:

As many of you read, six people were gunned down in a rampage in Kalamazoo, Michigan.  Before I joined all of you, I called the mayor, the sheriff, and the police chief there, and told them that they would have whatever federal support they needed in their investigation.  Their local officials and first responders, by the way, did an outstanding job in apprehending the individual very quickly.  But you got families who are shattered today.

Earlier this year, I took some steps that will make it harder for dangerous people, like this individual, to buy a gun.  

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