Trump's "Second Amendment People": So You Say You Want a Revolution?

My conservative co-writer Ben Boychuk and our mutual conservative friend Julie Ponzi take turns this week trying to defend — or explain — Donald Trump's discussion of how "Second Amendment People" might try to undo the horrors of a Hillary Clinton presidency. (Yeah, that was several scandals ago, but sometimes these things are worth extended pondering.)

First up, Ben:

Hewitt asked Trump if he intended to incite violence against Clinton. “No, of course not, and people know that,” Trump replied. “We’re talking about the power of the voter. We’re talking about the tremendous power, and you understand this probably better than anybody, the power behind the Second Amendment, the strength behind the Second Amendment.” 

That’s pretty deft. In the United States, with the exception of an unpleasant period between 1861 and 1865, we settle our political differences with ballots, not bullets. But the Second Amendment is a lot like the nuclear deterrent the Republican national security establishment worries that Trump doesn’t understand. Judging from his comments on the radio, Trump understands deterrence very well.

Julie expands:

People argued he was trying to incite violence in the first case and that he was an intemperate madman in the second. But in both cases, people ended up having to rethink the fundamental question of purposes. That is to say: Why do we have a Second Amendment? What important public good is served by respecting an armed citizenry? And why does the United States have nuclear weapons? What purpose do we facilitate by maintaining a nuclear arsenal? 

We have a Second Amendment because, as a sovereign people, we reserve unto ourselves the right to stop tyranny. We are, after all, a nation founded in Revolution. We set things up so that we might always prevent tyranny with ballots because we understood that perpetual and persistent revolution (aka, direct democracy) is just another road to tyranny. So we put a lot of restraints on our ability to exercise that right of revolution.

First, let's be excruciatingly fair: Donald says he didn't mean to threaten Hillary with violence, but with the ballot power of NRA folks. That's not how a lot of people heard it initially. But: In the interest of fairness, let's call the ultimate purpose of his comments unknowable. That's still problematic — people shouldn't have to ponder or argue if one presidential candidate was trying to threaten another — but let's give him the benefit of the doubt and focus instead on what Ben and Julie say.

(Looks.)

Well, yeah. This is what we thought he was saying. This is what we were worried about.

What Ben and Julie seem to concede that, yes, Donald Trump was really talking about killing Hillary Clinton if she appoints the wrong judges — but not really, but also that's really what the Second Amendment is for, right? Like Trump, they're trying to have it both ways. We're not saying Hillary should be killed. We're saying the Second Amendment is for killing tyrants. Is Hillary a tyrant? (Whistles softly and ambiguously down the street.)

So let's be clear and deliver the proper response to this silly Second Amendment utopianism: Guns can be used to defend against tyrants. They can also be used to undermine and destroy legitimate governments that have popular support. Guns can crush rights just as surely as guns can defend them. The same goes for threats — subtle and not-so-subtle — made with guns used as backing, i.e.: The deterrence that Ben and Julie support.

In Hillary's case, Donald was envisioning a scenario in which: A) Hillary had won the election and B) was trying to appoint judges, in which case she'd need the cooperation of the Senate. (And because of B, would probably need some cooperation from Republicans, even if they lose the Senate, because that's how things work nowadays.) Ultimately, what Donald is suggesting is that the desires of "Second Amendment People" should undo a government elected by popular will, held in check by senators who are also accountable to voters.

Is that what the Founders really meant? I'm deeply skeptical that "Hillary appoints judges disliked by the NRA" sets the bar high enough to justify armed revolution. My friends, who believe that undermining the Second Amendment would be an assault on the Constitution, have a different sense of where that bar should be set.

But yeah: Donald Trump was suggesting — never mind his backtracking — that election results can be undone with a gun. Ben and Julie endorse that notion in broad strokes, just not necessarily specifically in this case. Makes little matter. "Deterrence" is just a nice way of saying: "That's a nice candidate for president you have there. Be a shame if something happened to her." There's no amount of Founder-loving philosophizing that can dress it up.

I'm for an assault weapons ban

I believe in the right to self-defense. I believe that that right encompasses, to some extent, the right for individuals to bear arms — even though that's a particular right I personally choose not to exercise it.

By recognizing that right I have, in recent years, focused my solutions to the gun-violence problem around the edges — solutions I thought might be effective in keeping guns out of the wrong hands (convicts, the mentally ill, domestic abusers, and so forth). I've even suggested expanding gun-safety classes. (Yes, I've also argued that guns, far from being the inanimate objects their defenders try to suggest they are, are uniquely efficient tools of death. It's possible to hold both ideas in my head.)

It's meant nothing.

 The latest mass shooting has changed my mind on one part of the issue, though. I now favor an assault weapons ban.

 My conservative friends will be angry with me. Some will say "what do you mean by assault weapons?" They've decided to contest such efforts, essentially, by essentially denying that any such category exists or can even be reasonably defined, mocking the lack of gun knowledge possessed by anti-gun activists.

 But — my conservative friends will object to this — we know assault when we see them. As I say in my latest column with Ben Boychuk: "

 The Orlando attacker used a high-power semi-automatic rifle with a large, easily reloadable magazine. This allowed him to kill or injure a large number of people in a relatively short time. Most people recognize such a gun for what it plainly is: An assault weapon." 

 I'll let the lawyers come up with a more precise definition.

But yeah: An assault weapon makes it easy to fire rounds quickly, and features a large magazine so the shooter can fire many rounds quickly. If guns are uniquely efficient tools of death, then what we commonly understand to be assault weapons exist on a whole other plane. The fair question to this is:

Will it work? The answer: It probably depends on how the law is executed. I don't pretend this is a perfect answer to the gun violence problem. But reducing the number of assault weapons available to the public might begin to reduce the number of mass shootings American experiences. Even that won't be perfect: Dylann Roof, after all, killed nine people in a Charleston church using nothing more than a handgun.

 My conservative friends will suggest I want to infringe on their rights — that I'm on the side of gun grabbers or tyrants or worse. The truth is, though, we have few rights in American life that aren't at least a bit curtailed because of the harms they can create. As a working journalist, I'm a big fan of the First Amendment, but I'm not allowed to libel or slander people without consequence. The American people can judge that some types of weapons create more harm than good, and act accordingly.

 My conservative friends will suggest such a law would be ineffective. They might be right! But it might also be the case that the law does its job, but does it imperfectly. That's the great thing about conservative and libertarian views of governance: Government only has to be imperfect once to validate anti-government beliefs. The rest of us should not let perfect be the enemy of good.

What's more, the Supreme Court has just turned away challenges to state assault weapons bans. It suggests that even the gun-friendly court sees the right to guns as having some limitations.

 Curbing guns is not the only answer to curbing gun violence. But it might well be part of the answer. We should act accordingly.

Why we debate the Second Amendment the way we don't debate other rights

NRO's Charles CW Cooke:

“It is not acceptable to treat the Second Amendment as if it is a second class or less important right, and it’s not acceptable to deprive individuals of it purely because they are under suspicion… In my view, the way to take someone’s rights is to convict them of something.”

I hear this kind of thing a lot from my conservative friends, but it seems there's a kind of willful naiveté involved here. The reason our discussion of the Second Amendment is different is because the effects are different.

As I've said a million times: The function of a gun is to kill. Other things that a gun is useful for — hunting, self-defense — are a byproduct of its function to kill. That differentiates it from other tools or inanimate objects that can also cause death:

Yes, lots of people die in cars each year, but that's an accidental and unfortunate byproduct of the car's essential function to provide fast transportation — and, incidentally, we've worked successfully to mitigate that accidental byproduct. When a person takes a gun and kills 50 people in a nightclub, the person is defective, but the gun is working precisely as it should. No other civil right has quite the same results.

The First Amendment doesn't result in a Sandy Hook. The Fifth Amendment doesn't create a Columbine. But guns — and a Second Amendment that makes access to guns easy and widespread — often result in death. Lots of it.

 Now: Just because this is true doesn't mean the policy discussion should go one way or another, necessarily. But it's the reason, sensibly, we don't just say "welp, it's a Constitutional right" and shrug our shoulders. Guns are different. The Second Amendment is different. We shouldn't pretend otherwise.

Teaching Philly kids to use guns — the right way

Two years ago, trying to find a radical solution to the gun violence problem in Philadelphia, I suggested that maybe it was time to stop clamping down on guns and time to start inculcating a culture of responsible gun ownership and usage. It was kind of a controversial idea. 

While there are plenty of guns circulating in Philadelphia, there are also plenty of guns — per-capita, at least — in my home state of Kansas. Yet there are relatively few gun deaths there: As best I can tell, 9.9 gun deaths per 100,000 residents in Kansas, compared to 24.3 in Philadelphia. (The comparisons aren’t quite exact, but I think the disparity between those two numbers is probably in the neighborhood of correct.) Why? 

One of the reasons, surely, is that cities are simply more violent places: Living cheek by jowl can produce short tempers; short tempers can produce violence. 

But it’s also true that my rural friends have built a culture of gun safety that goes hand-in-hand with the culture of gun ownership. The clearest expression of this: To get a hunter’s license in Kansas, you must complete a 10-hour hunter safety course — heavy, of course, with lessons on how to handle firearms safely and respectfully. Some classes are taught by the NRA, but a hunter safety course was offered in my rural Kansas middle school back in the late 1980s.

Today, Helen Ubinas reports somebody else had the idea, too, and is running with it. Meet Maj Toure:

While gun-control advocates are forever looking for ways to reduce the number of guns in circulation, Toure favors dealing with a gun culture that isn't going anywhere, believing that legal gun ownership and training can reduce crime. In a city where so many people die by guns, I'd love to believe that solution would work. But my guess is that the people who go to the trouble of educating themselves about what it takes to own and handle a gun legally aren't the yahoos creating chaos with guns on the streets. 

"I was 15, walking around with a gun I had no idea how to use and no real respect for," he said. "In hindsight, I wish there would have been somebody to say, hey, this is a firearm, it's not a game. So when I'm seeing other people living out the same scenario, I want to be that adult teaching them properly."

Toure's militance puts Ubinas off a bit — he apparently favors black gun ownership as a deterrence against police brutality. It's worth noting, though, that Second Amendment activists often suggest that private gun ownership is a means of restraining government; Toure is well within NRA norms on that one. And for what it's worth, gun control efforts largely have their roots in white fears of an armed black populace. I'm curious to see what impact Toure's efforts have in Philadelphia. It's a hell of an experiment, at the very least. 

The ACLU: Not just a bunch of liberal hacks

Clive Crook, National Review, Monday:

The ACLU’s stated mission is “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.” Given its record, however, one would be forgiven for concluding that its copy of our charter is incomplete. Unfortunately, the ACLU appears to base its actions on the text of a tattered and torn document, from which the Second and Tenth Amendments are missing entirely, the Fourth was re-written in 1973, and the words “more or less” are appended to each paragraph along with an explicit invitation to interpret the document as broadly as humanly possible.

Emphasis added.

Randy LoBasso, Philadelphia Weekly, today:

Here’s something you weren’t expecting: The ACLU, along with the law firm of McCausland Keen and Buckman have filed a federal lawsuit today against the City of Philadelphia on behalf of Mark Fiorino, a Lansdale resident who was allegedly harassed by Philly cops for carrying a gun, despite his license to carry. Last time Philadelphia Weekly wrote about Fiorino and his ordeals with Philadelphia Police, he noted he was most offended by the officers’ not understanding their own city and state’s gun laws, which state one can obtain an unconcealed weapon license.

The lawsuit alleges Fiorino’s rights were violated when he was repeatedly detained longer than necessary to make sure he had a license to carry. His weapon was also confiscated and not returned for five months; it’s also alleged the police used excessive force against him.

Hey, the ACLU's interpretation of the Constitution is obviously to the left of National Review's. I think that's a good thing. But the ACLU also goes to work on behalf of gun-loving Second Amendment advocates. I think that's also a good thing, frankly. The ACLU frequently advocates for folks who don't necessarily line up ideologically on the left. I wonder: Would the righty ACLJ stick up for anti-gun activists using their First Amendment rights? I'm skeptical.

More guns, more death

Whenever a gun massacre happens—at Virginia Tech, say, or someplace else—we usually get a revival of the mostly neutered gun debate in this country. Some liberals decry lax gun laws, some conservatives suggest that if only everybody was armed you'd somehow see less gun violence.

A new study from the Violence Policy Center suggests the conservative analysis is wrong:

States with higher gun ownership rates and weak gun laws have the highest rates of gun death according to a new analysis by the Violence Policy Center (VPC) of just-released 2008 national data (the most recent available) from the federal Centers for Disease Control and Prevention’s National Center for Injury Prevention and Control.

The analysis reveals that the five states with the highest per capita gun death rates were Alaska, Mississippi, Louisiana, Alabama, and Wyoming. Each of these states had a per capita gun death rate far exceeding the national per capita gun death rate of 10.38 per 100,000 for 2008. Each state has lax gun laws and higher gun ownership rates. By contrast, states with strong gun laws and low rates of gun ownership had far lower rates of firearm-related death.

And here's the graphic overview:

This makes sense, of course, because the only purpose that guns have—when used—is to inflict injury and death. More guns naturally means guns will be used more, which naturally means more people will die. This isn't complicated.

This is particularly notable because, as Frank Bruni discusses in the New York Times today, there's a move among Republicans in Congress to force states with tight concealed-carry laws to recognize and allow concealed-carry permits from states with laxer regulations. (Thanks to the vagaries of Pennsylvania law, we in Philadelphia sometimes find ourselves awash in Florida-permitted guns ... with permit-holders often being people who have never been to Florida.) It's basically a law that would permit Wyoming to export its death rate to Massachusetts.

Second Amendment advocates, I suppose, will talk about Constitutional rights and the costs of freedom. But we should recognize those costs. Guns are not benign instruments.

Keep that gun where I can see it

Kevin Drum grouses about the California push by gun-rights advocates for "open carry" laws that let owners walk around with loaded firearms strapped to their side:

Maybe victory always makes people eager for more more more. But why don't they just accept their victory and bask in it instead? Get Heller and McDonald enforced around the country and call it a day. None of them cared about carrying guns around in public twenty years ago, after all. And if there's any way to get a sympathetic public to turn against them, demanding the right to have armed posses of obsessive gun enthusiasts marching around in supermarkets and bars and school corridors sure seems like a good way to do it.

I've written before that I don't think the Second Amendment is always and everywhere a good thing—if it were up to me, this would be one of those items to be decided at state-level, a la "laboratory of democracy" federalism. What's good for farmer in Kansas isn't necessarily great for my Philadelphia neighborhood. (And what's good for Florida certainly doesn't seem to be great here.)

That said, if we're going to live in a society where everybody's free to walk around armed, I'd prefer they have a pistol strapped to their hip—where I can see it, and judge the situation accordingly—rather than have them hidden in a waistband or jacket pocket: Concealed carry is permissible under California law, after all. It's not the guy with the Colt .45 strapped to his thigh that worries me; his intentions are clear and therefore mostly honorable. It's the people who hide their lethality that worry me. But I guess I'm in the minority.

A Quick Note About The ACLU

Regarding that gun confiscation story, let me note this tidbit near the end:

Mary Catherine Roper, a staff attorney at the American Civil Liberties Union of Pennsylvania's Philadelphia office, said that the cases seem "pretty outrageous."

"This idea of taking people's guns who are carrying them legally and arresting them is absurd," she said. "The police don't get to decide what is a crime - they only get to enforce what is a crime.

"They are simply acting as vigilantes here and deciding they know better than the law."

And:

Roper said that citizens should remain wary of police who arrest people complying with the law and take their property, even if it is a gun.

"The public may be saying, 'You're getting guns off the street,' " Roper said.

"But there's got to come a point where you want your police, of all people, to respect the law.

"This isn't technical, it's fundamental."

Conservatives like to treat the ACLU as if its a lefty special-interest group. Me? I just think it's an organization trying to protect our rights. I'm glad it's there. Maybe conservatives should be, too.

"Officers' safety comes first, and not infringing on people's rights comes second."

I'm pretty much on record that I find gun ownership the most ambiguous of all the civil rights. It's not that I dispute the meaning of the Second Amendment -- that debate, I think, is for all intents and purposes over -- but, let's be frank: Guns are instruments of violence. Period. I'm not at all certain that the Second Amendment is always and everywhere a good thing.

But I like civil rights a whole bunch, and it seems to me that if I call on folks to defend them when they don't like it, I should do the same thing. That's why I find this story in the Philadelphia Daily News so disturbing:

In the last two years, Philadelphia police have confiscated guns from at least nine men - including four security guards - who were carrying them legally, and only one of the guns has been returned, according to interviews with the men.

Eight of the men said that they were detained by police - two for 18 hours each. Two were hospitalized for diabetic issues while in custody, one of whom was handcuffed to a bed. Charges were filed against three of the men, only to be withdrawn by the District Attorney's Office.

Read further into the story, and you'll hear tales of men arrested after they offered their legal permits to carry the weapons to officers -- who either didn't know the law well enough to accept the documentation, or, because of other issues, couldn't independently verify those permits in a quick and reasonable manner.

In such cases, it seems to me, the call goes to the person who is exercising their rights. If police can't prove you're violating the law, they shouldn't be able to arrest you or confiscate your property. But that's not really the case in Philadelphia, at least. Enter Lt. Fran Healy, a "special adviser to the police commissioner," and this somewhat chilling statement of values:

"Officers' safety comes first, and not infringing on people's rights comes second," Healy said.

That sounds reasonable enough on the surface -- and certainly, nobody wants to see any cop dead -- but: Spend any time in a courtroom, like I have, and you'll realize that "officer safety" is the loophole to end all loopholes. As a general rule, police have to have "reasonable suspicion" -- evidence derived from their observations or witnesses -- to stop you, to frisk you, to arrest you. Under the guise of "officer safety," though, officers can frisk you to (wink) make sure you don't happen to have a weapon. And if they happen to dig criminal evidence out of your pockets -- evidence they wouldn't have had the right to collect otherwise -- well, that's just what happens in the course of things.

Sometimes, you end up with innocent men in state custody for 18 hours because the police can't or won't get their act together.

Like I said: I do want Philly cops to be safe. And guns make the city scary, at times. But I want the police to operate on the presumption that they honor the rights of the citizens they serve. Stories like today's don't offer me comfort.

Elena Kagan, Ralph Reed and the Second Amendment

This Ralph Reed -- remember him? -- post at The Corner, about Elena Kagan's radical tendencies, deserves a thorough fisking. But there's one point in particular that I found interesting. And by "interesting" I mean "dishonest."

In response to questions during her confirmation as solicitor general, Kagan argued the Second Amendment right to keep and bear arms, like freedom of speech, enjoys “strong but not unlimited protection.” This is a dangerous view of the law when it leads to the creeping erosion of the Bill of Rights.

Why is this dishonest? Because if you check what Kagan said at her solicitor general hearings, it's clear that she was citing DC vs. Heller, the 2008 case that upheld gun rights. This is a fuller and untruncated quote of what she said:

Once again, there is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation.

Is that really "a dangerous view of the law?" Consider this: Kagan was basically echoing the Heller decision in making her statement about the limits of the Second Amendment -- a decision written by Justice Antonin Scalia. Scalia wrote:

Like most rights, the Second Amendment right is not unlimited.It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to castdoubt on longstanding prohibitions on the possession of firearms byfelons 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.

Is Ralph Reed really going to say that Antonin Scalia -- about as solid a Second Amendment absolutist as you'll find on the court -- has a "dangerous view of the law?" Of course not. So if he's saying the same view of the law is dangerous when held by Elena Kagan, well, you can be sure he's doing so in the service of dishonest hackery. Ralph Reed isn't telling the truth.

The right to trial? Optional. The right to bear arms? Inviolable. (Or: Why Lindsey Graham is indefensible.)

A friend points me to this Huffington Post article, where Sen. Lindsey Graham defends allowing people on terror watch lists to buy guns -- but doesn't want American citizens accused of terrorism to be given their criminal defense rights:

New York City Mayor Michael R. Bloomberg's appeal to what he called "common sense" at a congressional hearing Wednesday morning failed to sway two Republican senators who said that giving the government the ability to block the purchase of guns by suspected terrorists would undermine the Second Amendment's right to bear arms.

Graham described the bill as an instrument of those who would ban guns altogether. "We're talking about a constitutional right here," he said, explaining that he could not support a bill that would force "innocent Americans" to "pay the cost of going to court to get their gun rights back."

Graham wasn't nearly as concerned about rights when he launched into a disquisition on the treatment of American citizens accused of terrorism. "I am all into national security," he said. "I want them to stop reading these guys Miranda rights."

Like many of his fellow Republicans, Graham assailed the administration for respecting the constitutional rights of suspected terrorists, suggesting instead that they should be treated like enemies on the battlefield.

"Even if you're an American citizen helping the enemy, you should be seen as a potential enemy," he said, "not as someone who committed a crime in New York."

I'm trying to find a way to make this intellectually coherent, but it involves too much reaching for plausibility. Being suspected of terrorism is enough to forfeit your right to trial -- but being suspected of terrorism isn't enough to forfeit your right to buy weaponry?

Really? The Second Amendment is inviolable but the Sixth Amendment is optional? Isn't Lindsey Graham a lawyer? One who is on the Judiciary Committee and thus lectures judicial appointments about fidelity to the Constitution? It's an embarrassment to the country and the Republican Party.

Podcast: Joyce Lee Malcolm and the Second Amendment

Ben and Joel are joined by Joyce Lee Malcolm to discuss McDonald v. Chicago, a Second Amendment case before the Supreme Court, and the history of the right to bear arms.

Malcolm is a professor of law at George Mason University School of Law. She is a historian and constitutional scholar. She is the author of seven books including To Keep and Bear Arms: The Origins of an Anglo-American Right and Guns and Violence: The English Experience. Her work on the Second Amendment and the right to be armed has been widely cited in court opinions and legal literature including the U.S. Supreme Court’s landmark 2008 opinion, District of Columbia v. Heller

This coming week -- on May 5 -- she'll appear in Philadelphia at theNational Constitution Center for a discussion about "RETHINKING THE SECOND AMENDMENT: THE CHICAGO GUN CASE AND THE FUTURE OF GUN RIGHTS." The event is 6:30 p.m. Wednesday and is free, but reservations required. Check constitutioncenter.org for details.

CLICK TO PLAY THE PODCAST.