Internet Scofflaw

The Second Amendment reads:

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.

The operative clause seems perfectly clear, but the prefatory clause has been the source of endless confusion and mischief. The proper role of the preamble in statutory interpretation is to clarify the statute’s intent and meaning, when ambiguity exists. In the case of the Second Amendment, there seems to be no such ambiguity, but we look to the prefatory clause to make sure it is consistent with the operative clause’s plain meaning.

Those who wish to ban arms often argue that the prefatory clause points to a meaning that actually conveys no right for the people at all, or a right that applies only for people who serve in a state militia. This argument reveals a confusion over statutory interpretation (again, the preamble is used to clarify the operative clause, not to alter it), but more than that, it reveals a confusion over the meaning of the terms in 1791, when the Bill of Rights was enacted.

What did the framers mean when they wrote “a well regulated militia”? In today’s parlance, we think of a militia as an organized military or paramilitary group. (Some go on to say that a well-regulated militia is therefore a military organized by the government, such as the National Guard.) But in the language of the day, the militia referred to the entire body of able-bodied men of military age, who could be called up in the event of war. Thus, taken in its historical context, “militia” is not constraining at all.

But what of “well regulated”? It has always seemed like an inkblot to me, meaning to everyone just what they want it to mean. Heller v. DC says it “implies nothing more than the imposition of proper discipline and training.” This seems plausible, but their citation didn’t seem super-convincing.

But reading Ron Chernow’s excellent biography of George Washington, I found a quote that sheds some light on the matter. On the eve of the disastrous Battle of Long Island, Washington was incensed by the poor discipline of his troops, finding “something more like a crazy carnival atmosphere than a tidy military camp.” Washington lashed out to one of his generals:

The distinction between a well regulated army and a mob is the good order and discipline of the first, and the licentious and disorderly behavior of the latter.

(Emphasis mine.) It is important to note here that the Continental Army, which was under Washington’s orders, is the one he deemed to be a “mob,” not a “well regulated army.” This makes clear that — to General Washington at least — the property that makes an army “well regulated” army is not to be under government orders (his army was under orders), but to show “good order and discipline.”

It’s particularly instructive to note that Washington’s army had just swelled from 10,500 to 23,000 men, mainly by the arrival of newly recruited militiamen. (They faced 26,000 trained British soldiers and 8,000 Hessian mercenaries.) So Washington was acutely aware of the problem of discipline as it applied to “callow youths grabbed from shops and farms.” The common man needed to know how to handle himself in armed conflict, particularly since the founders had no intention of forming a standing army.

If we take Washington’s use of the terminology as canonical, the Second Amendment could be rephrased in modern terminology to say:

Since the security of a free state requires that the common man who might be called up for military service know how to handle himself in armed conflict, the right of the people to keep and bear arms shall not be infringed.

It should be noted, then, that Heller’s interpretation of “well regulated” to mean the “imposition of proper discipline and training,” seems to be entirely correct. However, where Heller seems to go wrong is when it gives license to ban the “weapons that are most useful in military service.” They base this on a historical analysis that suggests that the pre-existing right that the Second Amendment protects is for the weapons that were “in common use” and allows the prohibition of “dangerous and unusual weapons.”

But here the clarifying purpose of the prefatory clause is applicable. If the intent is that the common man be able to handle himself in armed conflict, he should be familiar with military weapons. More precisely, he should be familiar with the standard infantry weapon. This does not alter our view of the pre-existing right: At the time, standard infantry weapons and common weapons were one and the same. They are different today precisely because military weapons have been banned since 1934. If there were a “dangerous and unusual” weapon it would have been field artillery, not the standard infantry weapon.

Bump fire is all over the news this week, with reports that the Las Vegas shooter had several bump-fire stocks in his arsenal. Predictably, gun-control advocates are calling for bump-fire stocks to be banned, but, more surprisingly, gun-rights supporters are not putting up the same kind of fight they usually do. Let’s talk about why that is.

First, what is bump fire? Bump fire is a technique for pulling the trigger of a semiautomatic rifle more quickly. The idea is you let go of the rifle with the trigger hand, and push forward with the non-trigger hand. When you pull the trigger, the recoil causes the rifle to bounce against the forward pressure of the non-trigger hand. The upshot is the entire rifle bounces forward and backward while the trigger finger remains still, causing the trigger to be pulled very quickly.

You can buy a stock that makes bump fire easier to do. Bump-fire stocks containing springs are illegal under ATF regulations, but you can get a special stock that makes it easier to hold a rifle in the awkward way that bump fire requires. You can also construct a bump-fire stock from a rubber band and some other household objects.

A bump-fire stock does not make a semi-automatic weapon into an automatic weapon. The weapon still fires only one round per trigger pull. It also does not make a semi-automatic weapon into the functional equivalent of an automatic weapon. Bump fire — with the rifle literally bouncing around in your hands — is incredibly inaccurate.

We don’t know for sure that the Las Vegas shooter used a bump-fire stock in the shooting, we only know that he had several in his arsenal. But many people, myself included, suspected that he might have been bump firing, based on the sound.

So what are the arguments for and against banning bump-fire stocks? For:

1. Bump fire has no purpose in either self-defense or hunting. Its only legitimate use is recreational. (Yee haw, look at all the bullets!)
2. We might be able to strike a compromise in which we exchange bump-fire stocks for something harmless that we really want, like suppressors.
3. With the rifle bouncing around, bump fire isn’t safe.
4. Many serious gun aficionados look at bump fire as a tacky, low-class pastime.

Against:

1. Sure, many serious gun aficionados look at bump fire as a tacky, low-class pastime, but we should not allow the gun-control advocates to use bump fire as a wedge to divide the gun-rights community.
2. Bump fire is safer with a bump-fire stock than with a jury rig.
3. The slippery slope: Gun control advocates want to ban all firearms. If they get anything, they will just move on to the next thing. Give them nothing.
4. It’s nearly impossible to define what a bump stock is. You can get the same effect from a rubber band. Vague laws create opportunity for mischief.

For my part, the most telling arguments are #2 for and #4 against. Ordinarily I would agree with the slippery slope argument, but if we got something in exchange, that would mitigate it. Whether I could support a ban would depend a lot on the precise wording.

POSTSCRIPT: Alas, it might be hard to strike the compromise, because the gun-control people would have to admit that they’ve been lying about suppressors.

UPDATE: I guess the other reason to oppose banning bump fire stocks is the gun banners do not operate in good faith, and once they come forward with their ban, it will turn out also to cover a lot of other things that do matter. And that seems to be exactly what has happened.

I was asked on Facebook if I had any thoughts on how to address the problem of mass shootings. This is what I said, pretty much off-the-cuff. I might update this at some point to give it more polish.

The sad truth is in an open society, with high population density, mass murder is easy. You can do it with guns; you can do it with trucks; you can do it with bombs; you can do it with hijacked airplanes; you can do it with poison; you can do it with a computer virus. You can do it using means that no one has thought of yet. Trying to keep killers from obtaining the means to kill just seems impossible to me.

I think the focus has to be on the perpetrators, not their tools. There are different sorts of mass murderer, and each sort demands a different strategy. On the one hand, there are terrorists (9/11, Boston Marathon, Orlando). Then you have random psychos (Aurora, Sandy Hook). Then you have people suffering from brain tumors or adverse drug reactions (University of Texas). (I suspect that when we figure out Stephen Paddock, we’re going to find he was in the third category.)

We fight terrorists by attacking their organization and their funding, by destroying their safe havens, and by intelligence work. We’re doing that.

The random psychos kill for the glory of it. They are basically all copy-cat killers. We need to stop giving them glory. Don’t release their name. Don’t release their picture. Get the whole story out of the news after a few days. We can’t force the media to do this because we treasure free speech, but maybe they can be shamed into doing the right thing.

The brain-tumor people are tough. They don’t kill for glory, they kill because something in their brain is broken. But unlike most mentally ill persons, they have the capacity for meticulous planning. Functionally they are like terrorists. I’m not sure what the solution is in this case, but it probably has something to do with public health.

There are also steps you can take to reduce your chance of becoming a victim. That doesn’t prevent the mass murder (most people prefer to live their lives unaware of the dangers around them), but you can make yourself less likely to be part of it.

In the aftermath of the horrific shooting in Las Vegas, the opportunistic ghouls of gun control quickly emerged to exploit the incident. A lot of people are passing around an “explainer” from Vox.com entitled Gun violence in America, explained in 17 maps and charts. It contains a few valid facts, but most of it is misleading or outright false. I didn’t find a rebuttal on-line, so I thought I would do it myself.

I’ll go through it point by point:

Point #1 (misleading):

America has six times as many firearm homicides as Canada, and nearly 16 times as many as Germany

The chart shows “homicides by firearm per 1 million people” for 14 countries, and shows the United States as an outlier, dramatically worse than the second worst country on the chart. There are two big problems with this chart: First, it focuses on “firearm homicides.” Who cares? Are people murdered using a gun more dead than if a different weapon were used? If you just look at homicides, the numbers change dramatically. For instance, the second worst country on the chart (Switzerland) actually has a much lower murder rate than the best one (Australia).

Second, they are cherry-picking the countries. This is a consistent pattern throughout this article (and others like it). There are countless statistics one can draw from the data, so it’s not hard to quote statistics to support any hypothesis. One needs to look at whether the quoted statistics are natural ones. In this case, one should ask, why choose these particular countries? In fact, there are many countries with a worse murder rate than the United States, and some of them are developed nations. (Russia and Brazil are much worse.)

In fact, the US does have one of the highest murder rates among developed nations. It certainly is a problem. But the chart exaggerates.

Point #2 (true):

America has 4.4 percent of the world’s population, but almost half of the civilian-owned guns around the world

In fact, American civilians have more guns than the militaries and police forces of the rest of the world put together.

Point #3 (false):

There have been more than 1,500 mass shootings since Sandy Hook

Simply untrue. The standard definition of a mass shooting is four or more people killed, in a public place, while not committing a crime, and excluding war. (This definition was employed by the FBI until Obama tinkered with it in 2013.) By that measure, this number is orders of magnitude too high. Even Mother Jones makes this point.

To get numbers like this, some people have deliberately lowered the threshold to include four or more people killed or injured, including criminals. That generates big numbers to be sure, but it’s plainly dishonest to pass off gang wars, and incidents in which no one was killed, as if they were incidents like Sandy Hook.

Point #4 (false):

On average, there is more than one mass shooting for each day in America

See above.

Point #5 (misleading):

States with more guns have more gun deaths

This one is very popular; I’ve seen it all over the internet the last couple of days. But note the careful wording: “gun deaths” not “gun homicides.” In fact, this statistic is entirely about suicides. If you remove suicides from the count, the correlation entirely disappears:

Also, recall point #1; people killed by other weapons are just as dead as people killed by guns. There’s no reason to exclude non-gun murders, other than to skew the numbers.

Also, their chart isn’t even honest in its own terms: they omit the District of Columbia which has the nation’s strictest gun laws and worst murder rate. If they put DC on the chart, they would have to resize the Y-axis to make room for it.

Point #5 goes on to say this:

And it’s not just one study. “Within the United States, a wide array of empirical evidence indicates that more guns in a community leads to more homicide,” David Hemenway, the Harvard Injury Control Research Center’s director, wrote in Private Guns, Public Health.

They are quoting the book accurately. But when you follow the link, the book does not cite a single one of the “wide array” of studies. It just makes a bald assertion. On the other hand, there is considerable scholarship to the contrary.

Point #6 (misleading):

It’s not just the US: Developed countries with more guns also have more gun deaths

This one hits nearly every misleading point. It uses gun deaths, rather than gun murders or overall murders. And the choice of countries is odd. If you follow the link, you find that the countries are supposedly selected by high scores (greater than 0.79) on the Human Development Index. But the choice of countries doesn’t match the linked data, it leaves out countries (Russia and Uruguay) that would completely spoil the picture.

Point #7 (misleading):

States with tighter gun control laws have fewer gun-related deaths

Once again they use gun deaths rather than gun murders or overall murders. Plus, their proxy for tight gun control laws is this: “States with at least 1 Firearm Law Designed to Protect Children in Place.” So, gun locks? Come on. This is obviously a cherry-picked criterion.

In fact, the cities that have the very highest murder rates (e.g., Chicago) are in states with very strict gun control. And states that have loosened their gun laws have not seen any increase in the murder rate.

Point #8 (true):

Still, gun homicides (like all homicides) have declined over the past couple decades

Point #9 (true):

Most gun deaths are suicides

Point #10 (dubious):

The states with the most guns report the most suicides

I don’t know the statistics, and I don’t have time to look them up, but it’s very suspicious that they use a 5-year window, 12 years ago. This smells like cherry-picking.

Point #11 (obvious):

Guns allow people to kill themselves much more easily

Point #12 (chart does not support headline):

Programs that limit access to guns have decreased suicides

It’s believable that there could be some low-order effect here, but the chart doesn’t show one at all. The chart shows that the suicide rate was already steadily falling when Australia instituted its gun confiscation program, and it continued falling.

UPDATE: The article also cites a study of the Australian gun confiscation program that found (page 532) that it did result in a statistically significant drop in firearm suicides. But the study did not find a statistically significant drop in the overall suicide rate. Quite the contrary. They found a small decrease in the overall suicide rate, but the p-value is a staggering 95.6%, meaning that the decrease is almost certainly due to random chance. So, once again, there’s something here only if suicide-by-gun is somehow worse than suicide by some other means. Moreover, the headline claims a decrease in overall suicides, which is flatly unsupported by the study.

Point #13 (irrelevant):

Since the shooting of Michael Brown, police have killed at least 2,900 people

Let’s assume this statistic is true. I fail to see why relevance it has to gun policy. Moreover, just on its own terms, I have no benchmark to judge whether this is a lot.

Point #14 (dubious):

In states with more guns, more police officers are also killed on duty

They are comparing the 8 states with the least guns with the 23 states with the most guns. 8 and 23. Those are very strange numbers to focus on; this is obviously a cherry-picked statistic.

Point #15 (true):

Support for gun ownership has sharply increased since the early ’90s

Point #16 (true):

High-profile shootings don’t appear to lead to more support for gun control

Point #17 (misleading):

But specific gun control policies are fairly popular

Yes, when posed using terminology tested on focus groups by gun control advocates, they are fairly popular. But, support plummets once people learn what is really being proposed:

• “Preventing the mentally ill from purchasing guns” is pretty popular. But once people find out that “mentally ill” means nothing more than “has someone handling their finances,” they realize they’ve been had.
• “Barring gun purchases from people on no-fly or watch lists” is pretty popular, but “a bureaucrat can suspend your right to buy guns, and they don’t even have to suspect that you’re a terrorist, and in fact they don’t even have to tell you you’re on the list, and you have no legal right to contest being on the list, and even if you get off the list you still can’t buy a gun for years” is much less popular.
• “Background checks for private sales and at gun shows” is pretty popular. That disappears when people find out “background checks for private sales” means you cannot borrow or rent a gun, so there’s no practical way to try a gun out before you buy it. Also, the so-called gun-show loophole is a complete myth.
• “Banning high-capacity magazines” is somewhat popular, at least among people who don’t know anything about guns. But then people find out that “high-capacity” actually means regular capacity.

UPDATE: John Lott has a thorough debunking.