Michael Maiello's picture

    Pistol Whippin'

    In my column this week at The Daily I argue that it's time to give up on a strict second amendment interpretation and allow for states and municipalities to decide on their own gun control laws.  Since I grew up with guns, I'm actually sympathetic to states that want to have concealed carry laws or or that want to allow unregistered gun ownership (like former home state, New Mexico).

    But, it makes no practical sense to me that in a country where you can have countries where alcohol can't be sold and towns where strip clubs can't be built, but that you cannot have a town or state where gun ownership is banned, even if that's what the residents want.  All this because of an amendment to the Constitution that seems to me was explicitly included because, at the time, the Framers were worried that they might have to call on every able bodied man to lock, load and get ready for the next British or French invasion (or, more likely, to repel a perfectly justified attack from a Native American tribe).

    In so many cases (like health care) conservatives have argued that states have the power to do things that the federal government does not.  Social conservatives, for example, seem perfectly happy to attempt to ban same sex marriages just in case the Feds relent on the Defense of Marriage Act.  Ron Paul's brand of libertarian would actually make your state government more tyrannical.

    Gun control is an exception because of the Second Amendment and a Supreme Court that has found that while gun ownership can be regulated, it cannot be banned by the government at any level.

    Some of the Tea Partyish justification for this is that the Second Amendment protects the First and all of the others.  This is a sadly pre-Civil War (actually pre Whiskey Rebellion) idea that somehow armed citizens can keep a government as mighty as the Federal one that we built during the 20th century in check.  Thinking this was is, in fact, a good way to get killed or dragged into federal prison.  Your nickel-plated revolver is no match for a Predator drone.  If you think your AK-47 knock-off assault rifle would be any more useful, I invite you to play a game I call "Ask a Pakistani."

    Allowing localities to make their own gun laws wouldn't have prevented the death of Trayvon Martin, as Floridians have made their wishes clear.  But it might just make people happier overall as they would be allowed to choose to live in  communities that reflect their values, if that's what's important to them.



    States rights is a joke. There are hardly any genuine supporters of local versus federal prerogatives or vice-versa. The whole debate is just a masquerade for getting one's own way.

    It has been so since before the Civil War, when the South roared against meddling by federal abolitionists while demanding legislation to force free states to return runaway slaves.

    Good column though.

    It is true that state's rights are a joke.  I know for a fact that I feel differently about federal gun control than I do federal education standards.  If only we had a Constitution that entrusted people with, "the right to learn about evolution."

    So, if I have the present state of Second Amendment Jurisprudence correctly understood, Wyatt Earp would have been mandamus bait for the iconic "Welcome to Tombstone, check your guns while in town"?

    I am at a loss fully to comprehend how the individual liberty (let alone property preservation/workers comp claim minimization) interest of a bar owner in prohibiting his patrons from coming in strapped ought to be trampled by a state government that forbids him from imposing this salutary requirement. (Rather like the need to wear a necktie, of which I have more than once fallen afoul...)

    Just because the Second Amendment interest imposes a strict scrutiny standard of review on the legitimacy of state action that impairs the right-to-blow-away, it does not mean that a state action directed at preventing private regulation has  unquestioned priority.

    Funny, how Wyatt Earp's ban on carrying guns, didn't prevent the OK Corral from occurring. Such a prevailing trend, laws not preventing violence then, much less today.

    Then again, who is truly to say that the Earp's weren't the bad guy's here, they were just the winners in a struggle to control a market and the winners always get to write history eh.

    As to the right to blow away, extremist fear mongering is apparently all you have as without the attacker first attacking, A SELF DEFENSE WOULDN'T OCCUR. So how about you address the bad guys eh, oh wait, cant overload you with common sense demands, sorry!

    Don't see where any of the laws identify a person is still not held to standards identifying what is a justifiable self defense! Go ahead and print ANY law that shows the standards of self defense are eliminated making murder legal.

    Don't not see any evidence where all shots fired are fatal, which if it were true, there wouldn't be 70,000 plus non fatal gun shot injuries a year.

    Don't see evidence where the only ones in multiple police firearm discharge reports hit their intended target more than 15% on average. So claiming the bad guys are better shots is REAALLLLLYYYY a stretch of the imagination eh?

    Don't see evidence where shots are fired in more than 15% of the violent crimes or police incidents where a firearm was drawn to engage the perps. DOJ Firearms use by Offenders Nov 2001, police firearm discharge reports, ref Virginia State Police, NYC Police department, Chicago Police department.

    Might want to review those firearm discharge reports as funny how they show 76-80% of all shootings, are where both shooter and injured were both involved in a criminal activity at the time of the shooting, mostly illicit drugs.

    Oh that's right, Haynes vs US 390, 85, 1968, felons are not held to obey any law requiring them to violate their 5 th amendment right of no self incrimination, making over 85% of the existing 20,000 gun control laws not applicable to felons.

    Kinda like those dozens of court rulings how the police are not legally liable to protect the individual citizen.

    Kinda like how the police only manage to solve on average around 8.06% of all violent crimes committed in an average year. USDOJ National Victimization report 2008, FBI UCR, USCOURTS-CASE CLOSURE STATISTICS.

    Kinda like that US government report showing that 92% of all killings each year where a firearm was used, are by career criminals/gang members and suiciders (suicide is a felony ya know). USDOJ National Gang Threat Assessment annual report, CDC Death Data.

    So rather than some unsubstantiated fears, how about you show the actual numbers of law abiding gun owners going strapped to the bars and killing what must be thousands, uh hundreds, uh tens, of people eh?

    You also really need to show how the laws reinstating concealed carry in bars now makes it legal to drink and carry.

    Warn everyone when you have such data for both as we will have to dress warm for hell freezing over.


    Wow, this thread really attracted a fun over-the-top response. It's funny to re-read jollyroger's comment with this one that accuses it of "extremist fear mongering".

    That the best you have, typical and totally lacking substance much less substantiated facts or data.

    Re-read what I've written on this thread. I have no horse in this race. I just find you humorously over-the-top.

    Besides, the sarcasm is earned through the thousands of times not one single person arguing their beliefs for the anti gun side, has debunked in any logical or legal form, all that government data.

    That and a little "prick" at the opine writers and supporters ego's tends to reveal who is an intelligent debater, or who is simply an extremist left wing whack job.

    Very few reply intelligently much less civil fashion, many go postal, and some just shut up, all which are acceptable results.

    Did you just mention "going postal?" Heh.

    States have powers, not rights, or has someone went and changed the 10th amendment to say different, geez, no they have not.

    Get back to us when you have an actual understanding of what that means.


    Secession was based on the idea of state rights (or "states rights," a variant that came into use after the Civil War). This exalted the powers of the individual states as opposed to those of the Federal government. It generally rested on the theory of state sovereignty-- that in the United States the ultimate source of political authority lay in the separate states. Associated with the principle of state rights was a sense of state loyalty that could prevail over a feeling of national patriotism. Before the war, the principle found expression in different ways at different times, in the North as well as in the South. During the war it reappeared in the Confederacy.

    Technically, jarjar is probably correct. I suspect that proponents originally chose the word "rights" because it has more political appeal than "powers"--like "pro-life" and "tax relief." Nonetheless, it's a bit odd to go around insulting folks for employing a common phrase in use since before the Civil War. If that is his mission, he certainly has his job cut out for him.

    I'm reminded of a time when our high school had two candidates for congressional representative visit (separately). The Republican candidate was asked a question about the "star wars" program by a beloved social studies teacher (this was during the '80s). Instead of answering the question, or even just politely stating that it was more properly called the "strategic defense initiative", he went on for a little while pretending like he had no idea what the teacher was talking about. Surprisingly, the candidate won the election, despite his lack of people skills. Of course, he was a Republican and this was Georgia in the '80s, so… (As an aside, his last name was "Swindall", and guess what he got in trouble for after getting elected to Congress?)

    I like that tactic. I'm going to start using it. Not for star wars because who talks about that anymore. Maybe death tax.

    What, scared of a discussion you wont win? Wheres the fun in that?

    Guess you better quit now!

    Poor bastard

    So you agree states rights do not exist, good.

    The US Constitution and BOR are the founding law documents that any state agrees to follow and uphold by their agreement to be part of and participate in what is the union of United States.

    These laws and the BOR are limitations on federal and state powers and as such, carry the inherent preemption of states making laws exceeding the power of those laws and restriction set forth in the US Constitution and BOR on government powers.

    This is defined and stated clearly in the 9th amendment.

    Not to mention the multiple US Supreme court rulings on the "people" meaning the individual citizen.

    All those laws that are indeed in violation of constitutional scrutiny are evidenced as slowly being eliminated, as rights are reinstated to the people.

    Since the argument of what limitations on states powers not enumerated by the second amendment is intrinsically linked, the following is true.

    The second amendment as ratified by the states.

    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.

    Since the beginning of the written English language, the independent clause of a complex sentence, a complete sentence that can stand alone and clearly convey a clear meaning, must first exist for the dependent clause of a complex sentence to have meaning. (the right of the people to keep and bear arms shall not be infringed), has always set the meaning of a complex sentence.

    Yet some infer now that all those English professors and judges ruling on court decisions based on the meanings of words and complex sentence structure, that now the dependent clause (A well regulated militia being necessary to the security of a free state), an incomplete sentence, unable to stand by itself and convey a clear meaning, is now the determinator of a complex sentences meaning? Have at it, it should bring you a Nobel or Literary prize for proving everyone wrong eh?

    Review of the Karpele's Museum of Historical government documents, Santa Anna CA, where the 1774-1789 congressional writings and the federalist papers shows over 30 references to well regulated to mean well trained in the arts of war.

    Funny how the original draft of what became the second amendment (also at same Karpele's Museum Historical government documents) was clearly written as a collective right. Why would our founding fathers change that to what exists today if they indeed wanted a collective right?

    Original draft of the 17th amendment of 20 proposed amendments

    That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defense of the free State. That standing armies in time of peace are dangerous to liberty and therefore ought to be avoided as far as the circumstances and protection of the community will admit; that in all cases the military should be under strict subordination to and governed by civil power.

    Guess actions speak louder than words what our founding fathers intended.

    Don't forget the other logic failure that collective right wishers fail to prove, they ALWAYS fail to prove the militia existed before the armed individual. They must prove the militia existed first to legally justify the people only being armed to to their inclusion in a  militia.

    Then the Heller & McDonald rulings where all 9 justices agreed it has and always will be an individual right separate of the militia, and a sideways slap at the wrongly interpreted slaughterhouse rulings used to develop "incorporation ka ka".

    Failure to disprove the above, and the anti gun extremists failure to change English composition history, leaves little doubt the states have little legal authority to infringe upon the law abiding citizen.

    The laws should be written for the abuses of said rights, not the control of the exercise of said rights. But we are slowly winning that battle, one legislative ruling at a time.

    Then again, you would then also have to rescind the 5th amendment & the US Supreme Court Haynes vs US 390, 85, 1968 ruling to make most of the existing 20,000 gun control laws actually apply to felons.

    Try again.


    The point that is really missed in all this is that since the right to keep and bear arms is a fundamental right, it is incumbent on the government, be it state or federal, to protect and defend that right. This doesn't mean that my right to arms trumps a property owners right to deny access to that property if I insist on my right, it does however mean that the government cannot intrude in any fashion on that right simply because some elected official (s) don't like guns. In fact, that pledge to uphold the constitution a public official takes means that they will defend my rights. Unfortunately, people have forgotten that the government gets it power through them, it does not have power over them. A succulent, but distinct difference  between free men and subjects.

    Then the property owner should be held civilly and legally liable to protect those on their grounds/property whom they disarm, after all, they are not the police who are not legally held liable to protect the individual citizen.

    I don't know why you'd say that, jarhead.  If I own property and want to say, "you have no right to protect yourself here, and I'm not going to protect you either," by your logic it'd be up to you to decide whether or not you want to cross the line and take your chances.

    Jarhead is on target. Citizens owning, carrying and deploying firearms is the only way to keep people safe, forget the cops. The framers knew this which is why they mandated guns for all, anywhere, anytime, the First Freedom.

    The fact that the US has 30,000 people killed by guns every year, a hundred or more times the rate of gun restricting nations like Australia, and a million since 1968, is proof of the pudding that we need more guns not less. It's a question of readiness to shoot the right people, or part of anatomy, just before you get shot, not not shooting at all. We need to be quick on the draw too, like in the movies.

    Good points, NCD.  And, really, if you have a problem with any of this, nobody's stopping you from outfitting yourself and family in fashionable Kevlar.

    As to the rest, am in agreement.

    I think your interpretation of the second amendment is fine and defensible.  So, yes, you can argue that gun ownership is a fundamental right, making all other discussion moot.

    But I'm trying to have a different discussion.  Is having this fundamental right making people more happy, secure and prosperous?  If you think it is, then you have no problem with the current laws, though you might want to roll back some of the regulations that have crept into the system since the early days.

    If you don't think that it makes us more happy, secure and prosperous, then you might well wonder what good this right is and you might think, as I have, about ways to try to accommodate everyone.  I think that allowing for local regulations and laws is the best way to do it.  Let community standards apply as we do with so many other issues (alcohol, medical marijuana, gambling, pornography, and prostitution, to name a few) that are not explicitly mentioned in the constitution.

    You probably believe that states have the power to either have or ban casino gambling, right?  The question of gun ownership is no different, except that it is mentioned in the Constitution.  Now, maybe for you that ends the discussion.  In a practical sense, it certainly does.  With this Congress and this Court, your side is going to win most every time.  Congratulations.

    But I'm trying to explore ideas that I think will make life better.  I'm not going to be stopped because the Framers thought to include a provision in the Constitution that, yes, has become outdated.  Why is it outdated?  Native American raids on American settlements are no longer an issue.  Invasion from Canada, Mexico, France or the U.K. is unlikely.  In the event of international hostilities or zombie attack, the type of small arms available to the average citizen will be of limited utility.  In that vein, the government and police forces have no grown so powerful that armed citizens have no reasonable hope of successfully using the weapons available to them in order to curtail government power.  Face it, were Thomas Jefferson our contemporary he'd probably put in an amendment about a right to a secular education before he'd even think of putting one in about gun ownership.

    But, it is what it is.  Jefferson was a man of his times and those were times of more guns than butter.  I'm suggesting we'd be better off localizing this issue and focusing on other national priorities.  In that sense, I'm offering a compromise from the more typical liberal position, which would allow for federal gun control.

    What's funny is, under my scheme, you'd probably find that more localities and states would let people have guns than would ban them.  Many people for whom gun ownership is an important issue would probably find burdens removed from the current system, so long as they don't pack up and move to a big coastal city, where firearms would likely be banned.

    The original consitution only mentioned 'right' one time, and in a pithy usage.

    "Power" is all through the original. "Right" is used with Bill of Rights and after.

    Not odd that people would substitute the latter term, and arguing over it seems petty - having a "reserved power" for free speech is much the same as "the right to" free speech.

    Regarding "states' rights", I'm rather amazed people only see this in terms of Civil War knuckle-dragging.

    "States' rights" is also the principle behind California's stricter environmental codes, Oregon's medical marijuana initiative, Massachussetts' health care program, Alaska's lack of state income tax, various gay marriage laws.

    There was only 1 founding father favoring popular election of Senators, and that state "power" only got reversed in 1913 - partially from misperceived "legislature buying" (which seemed to have been quite rare, like the mythical ballot rigging used to justfiy voter ID these days)

    What should seem obvious is that it's easier for say Big PhRma to buy off the US Congress than to buy off 50 individual legislatures. Having a tough state AG like Elliot Spitzer scares hell out of corrupt companies.

    And while occasionally citizens stand up and pay attention, most times it's easy to bullshit them as well - say the 4 years between major elections. The enlightened popular internet-based town hall is still a long way off.

    By having federal laws formed by a mix of popular and state-backed interests, we had a healthier bulwark against rampant stupidity and theft.

    Most citizens don't have the time or finances to track their interests in Washington - states do. Not that state interests are the same as personal, but often they reflect more similar values than federal to individual. There's a principal at work where the closer the body to home, the more likely it reflects the individual's wishes - one of the basics of freedom.

    Of course there are universal principles we'd like upheld, including the abolishment of slavery - a slow but successful evolution at the federal level.

    However, we also have the abolishment of torture and non-habeus detention - which we managed with the Geneva Conventions and other legal vehicles - and then reversed again with our pee-your-pants paranoia post-9/11

    Every time I see this conversation come up, it seems like people willingly ignore the crap at the federal level - immunity for oil & pharmaceutical companies by Congress, useless laws like 55 mph mandated for all states, ridiculous corn subsidies and ethanol tariffs that enrich a few people at our expense...

    That doesn't mean state legislatures are pretty - it's the combination of individual, state and federal that improves our immunity. The Founding Fathers were right.



    His eyes wide open!

    Awww, they were made for each other.

    Shall we guess Donal's soulmate?

    That would be my wife.

    I can have more than one, right?

    True fact: I took Jennifer (Nairn-Smith) from the clip out a coupla times....eat your hearts out, fellas!


    Vulgarian, huh?  Ya got that right...


    The man was a beacon to us all...

    I'm pretty much in complete agreement with you. The idea of each state being its own individual laboratory is a powerful one, in my opinion. It's not just about supporting the ideas we want supported, but about the principle.

    What should seem obvious is that it's easier for say Big PhRma to buy off the US Congress than to buy off 50 individual legislatures. Having a tough state AG like Elliot Spitzer scares hell out of corrupt companies.

    PP, do you recall what happened to Spitzer? Not the prostitute thing. I mean his failure to tame one of the most corrupt and paralytic legislatures in the country. Cuomo's on the job now. Maybe he'll do a better job of it than his dad, but three decades of abject failure don't offer much reason for optimism.

    I agree that it's important to protect state and local powers, but there's no need to romanticize it by picking one exceedingly rare example of a crusading attorney general and imagining that it reflects state government as a whole. State governments have always been far, far more corrupt than Congress. In the late 19th century, big industries like timber, oil, and railroads used to more or less own the legislatures of a number of states. It's not that bad now, but it's still very bad in many states, much worse than Washington. You just don't hear about it because people don't write about it as much; that lack of transparency is one of the reasons that it's worse in the states.

    PS As for the Civil War thing, it was just one example of states rights hypocrisy. There have been many more since then on both the left and the right.

    That doesn't mean state legislatures are pretty - it's the combination of individual, state and federal that improves our immunity. The Founding Fathers were right.

    Doesn't seem like I was romanticizing. Should have included state AG's and courts in the mix. Eric Schneidermann also helped push back against mortgage fraud, before he was co-opted.

    Whether Spitzer succeeded or not, he did play a role of watchdog in the mix. And local people still pay more attention to details in Albany than the tsunami of legislation and lobbying in Washington.


    I'd say that 2A and 44 state constitution corollaries trump all attempts at limiting any right to keep and bear arms by ANY political entity.

    What has been forgotten/ignored is that the US Constitution, with the Bill of Rights is the law of the land, ratified by the several states either when it was adopted, or upon their entry into the Union.

    In answer to the comment about the people in a community deciding that they don't want guns: BS! Most likely such ordnance was passed by those in the political majority at the time, perhaps by slight of hand, or midnight back room deals.

    That is also why the Constitution limits the powers of any government to disarm the populace, or to stifle Assembly, or Speech, etc. The purpose is to keep the Majority from limiting the guaranteed freedoms of any Minority.

    A "Democracy" is best illustrated by 2 wolves and a sheep voting on what to have for dinner; in a "Republic", the sheep is armed.

    Ah, yes, was it not Plato himself (The Republic...) who first drew this analogy?

    (For the irony impaired, a veritable flock of whom have suddenly found dagblog, you, sir, are out your fuckin mind!--also, ignorant, and forensically disabled...)

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