P.L.A. - A Journal of Politics, Law and Autism

PLA is a fair and balanced Journal published by Dwight Meredith with a Focus on Politics, Law and Autism

E-Mail PLA
Comments, Criticisms, or just to say Hello

This page is powered by Blogger. Isn't yours?
Saturday, September 14, 2002
The Law and Politics of the Second Amendment: a Liberal View


We became interested in writing on Second Amendment issues completely by happenstance. We noticed news reports that Attorney General John Ashcroft’s Justice Department had filed briefs in two cases arguing that the Second Amendment granted individuals the right to own and carry weapons. We later read that despite the Justice Department’s position in those two cases, it was continuing to prosecute weapons charges against other individuals. We smiled at the apparent mild hypocrisy and thought that Mr. Ashcroft had weaved a tangled web. Thinking that we might be able to write a short post on his predicament, we used our on-line legal database to pull up cases interpreting the Second Amendment.

To our surprise, we found no definitive Supreme Court cases in the more than 200 years of the Amendment. We had assumed that there was Supreme Court precedent upholding the liberal position that the Second Amendment granted a collective right to the states to form National Guard units and not an individual right of a citizen to own and carry weapons. After all, despite all the rhetoric from the NRA, the Courts have not overturned the Brady bill. Every watcher of Law & Order knows that weapons violations result in jail time. The government has a Bureau of Alcohol, Tobacco and Firearms to enforce gun laws. How could that be if no Supreme Court ruling had ever validated the liberal view that the Amendment granted only collective rights?

Our curiosity was peaked and we decided to apply legal analysis to the issues presented by the Second Amendment. Given that there was little case law on the subject and we wanted to avoid either side of the political debate, we turned to the academy for Second Amendment analysis. A quick search turned up a Duke Law Journal Essay by William Van Alstyne. That article, titled "The Second Amendment and the Personal Right to Arms," may be found online here.

In that essay Professor Van Alstyne made a powerful case that the Second Amendment grants an individual right to citizens to own and carry firearms. Professor Van Alstyne was our Constitutional Law professor more than twenty years ago and we can assure you that neither the quality of his scholarship nor the inscrutability of his prose had waned in the intervening years.

Professor Van Alstyne’s work led us to a large body of academic analysis on the Second Amendment including Professor Kates’s article “Handgun Prohibition and the Original Meaning of the Second Amendment,” published in the Michigan Law Review and available here, Sanford Levinson’s "The Embarrassing Second Amendment," published in the Yale Law Journal and available online here and Professor Glenn H. Reynolds’s "A Critical Guide to the Second Amendment," published in the Tennessee Law Review and available here.

At the time we were doing the research for this post, we had been blogging for a short while. We did not recognize the connection between Professor Reynolds and the world of blogging. Now, as grizzled veterans of more than two full weeks in the Blogosphere, that seems rather naïve.

After a careful review of the arguments made concerning the text, history, structure and meaning of the Second Amendment and after considering the political implications of that review, we came to three rather surprising (to us at least) conclusions.

First, we concluded that the NRA view that the Second Amendment grants a right to keep and bear arms to individual citizens is essentially correct. Secondly, we concluded, based mostly on the writings of Professor Reynolds, that the nature of that right would do little to prevent reasonable gun control legislation. Finally we concluded that a Supreme Court ruling establishing an individual’s right to keep and bear arms would be a political benefit to gun control advocates.

The Second Amendment to the Constitution of the United States states, in its entirety, as follows:
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 NRA and conservatives in general read that amendment as guaranteeing individual Americans the constitutional right to own and carry guns. The traditional liberal view of the Second Amendment is that it gives the states the right to organize and maintain a militia (such as the National Guard) but does not confer any right for an individual to own or carry a gun.

Our research persuades us that the NRA is basically correct that the Second Amendment provides a constitutional right to individuals to keep and bear arms. The reasons for that conclusion are long and complex as they involve a detailed look at the text, history and structure of the Second Amendment and other parts of the Constitution. The length of that analysis precludes discussing it in this post. If there is any interest, we will discuss it in a later post. Please do not take our word for it, however, click on the links to the law review articles above and decide for yourself.

The Second Amendment Permits Most Gun Control Measures

The most startling conclusion from our research is that the Second Amendment would not prohibit most reasonable gun control measures that are short of confiscation or outright banning of the ownership of weapons.

The NRA would have you believe that the constitutional guarantee of an individual right to keep and bear arms means an unfettered right for anyone to keep or carry any gun to any place at any time and in any manner. Professor Reynolds’s scholarship demolishes that argument. Indeed, Professor Reynolds’s article demonstrates that the Second Amendment would permit gun control measures far more restrictive than we have today.

Rights granted in the Constitution are not absolute. First Amendment rights, for instance, are limited in a number of ways. The First Amendment grants the right of peaceable assembly, but the state can prohibit an assembly on Peachtree Street in Atlanta at rush hour. The First Amendment grants the right of free speech, but one may not rush into a crowded firehouse and shout “movie” (or something like that). The Constitution gives the right to worship as you please, but the State may prohibit the ritual sacrifice of animals in violation of local health ordinances. The same is true of the Second Amendment.

Professor Reynolds has identified a consensus among the academics that support an individual right to keep and bear arms. He terms that consensus the Standard Model. The Standard Model identifies the dual purposes of the amendment as being “to allow individuals to protect themselves and their families and to ensure a body of armed citizenry from which a militia could be drawn. Restrictions on keeping or bearing arms that do not infringe on those purposes would not violate the Second Amendment.”

The NRA may not realize that the Second Amendment would not be violated by a licensing requirement for all guns. Professor Reynolds makes clear that a licensing requirement would not be unconstitutional:
Licensing laws, background checks and waiting periods do not violate the right… After all, the “well regulated militia” of which every citizen was presumed a part included the necessity of showing up occasionally in person to prove that one possessed the necessary weapons and knew how to use them.

Thus, according to Professor Reynolds, not only would a licensing requirement be constitutional but also gun owners can be required to bring their guns to a specified location (we suggest a Police Station) for inspection and to prove proficiency with the weapon.

Professor Reynolds cites Professor Kates for the proposition that the Second Amendment would not be violated by outlawing the carrying of guns in public except for the purpose of militia activities:

[t]he amendment's language was apparently intended to protect the possession of firearms for all legitimate purposes, but to guarantee the right to carry them outside the home only in the course of militia service. Outside that context the only carrying of firearms which the amendment appears to protect is such transportation as is implicit in the concept of a right to possess--e.g., transporting them between the purchaser or owner's premises and a shooting range, or a gun store or gunsmith and so on.

Thus, guns could be banned from all public places including offices, restaurants, bars, streets and cars. The banning of guns from public places is a far cry from the absolute right championed by the NRA.

Not everyone has a constitutional right to own a gun. Professor Reynolds notes that “felons, children and the insane were excluded from the right to own guns precisely as (and for the same reasons) they were excluded from the [right to vote]…” Thus, presumably, non-citizens could be banned from owning guns. In addition, as drug abuse could be considered a form of insanity, drug tests could be a made condition of the purchase or continued ownership of weapons and such a measure would not violate the Second Amendment.

Professor Reynolds notes that only such weapons as can be carried by an individual are within the protections. Large weapons such as tanks, howitzers, machine guns and other weapons too large for an individual to carry are not within the right. It may be that a law limiting the number of weapons one may own to the number one can carry would not violate the Second Amendment under the same reasoning.

Despite the guarantee of an individual’s right to keep and bear arms, Professor Reynolds’s scholarship suggests that the following gun control measure could be instituted without running afoul of the Constitution:

1) All guns must be licensed;
2) All guns must be brought in person at regular intervals (perhaps once a year) to an appropriate location to be inspected and registered;
3) No guns could be purchased without a waiting period, a criminal background check, proof of citizenship, proof of age, proof of sanity, and proof of proficiency in the handling of a gun;
4) The same proof could be required at the once a year inspection in order to be permitted to retain the weapon;
5) A drug test could be required for the purchase of a gun; (Professor Reynolds does not specifically endorse this proposal but it follows from the right to ban guns from the insane. In addition, it has no negative impact on either of the purposes of the Second Amendment and has the added entertainment value of hearing the NRA proclaim the right of junkies to own guns);
6) Guns may not be taken from the home except for purposes associated with membership in the militia and certain related activities such as maintenance and repair, transport to and from purchase site, transport to and from a target range and for licensed hunting purposes;
7) All individuals can be barred from owning more weapons than they can personally carry to the appointed inspection location.

The Second Amendment protects only the individual’s right to keep and bear arms. It does not protect the rights of gun manufacturers and sellers unless restrictions on manufactures and sellers are a sham used to restrict Second Amendment rights. We have a constitutional right to interstate travel but the government may require car manufacturers to install airbags. The list of quality control and safety features that could be instituted against gun manufacturers is a subject for a different post.

The above list consists of restrictions on gun ownership that would likely withstand constitutional scrutiny under Professor Reynolds’s Standard Model. One suspects that there would be differences of opinion as to the wisdom of those restrictions. Those differences, however, are of a political nature and not a matter of constitutional analysis. We therefore now turn to the political analysis.

Liberals Benefit Politically from an Individual Right to Keep and Bear Arms

Professor Reynolds has shown that the Second Amendment leaves ample room for many restrictions on gun ownership. Indeed, the list above suggests that short of outright confiscation of guns, the exceptions swallow the rule. We believe that a Supreme Court ruling upholding an individual’s right to keep and bear arms under the Second Amendment would change the political debate in favor of significant restriction on guns.

Currently, the political debate over gun control is dominated by the NRA. The NRA has one of the most feared lobbying and political arms in Washington as well as in many state capitals. The NRA’s power is derived from the size of its membership, the dedication and zeal of a small minority of its membership, the ability to influence the votes of its more casual members, and the size of its pocketbook.

The NRA membership consists of a number of different types. A small minority of its members are full-fledged wing nuts that believe that if they are not able to purchase an arsenal of military firepower, Black Helicopters will descend and America will be subjected to the tyranny of One World Government. The vast majority of NRA members, however, are law abiding folks who own guns to protect their houses and family or hunters or sportsmen with no desire to accumulate a military arsenal. Those members simply want the right to own a gun for a legitimate purpose without risk that an intrusive government will prohibit such ownership. The more moderate NRA members have much in common with advocates of gun control measures. They do not want guns to be prevalent in their kids’ schools. They see little reason to hunt deer with a weapon designed to kill the maximum number of people in the shortest period of time without regard to the fate of bystanders.

Whenever a new gun control measure is brought forward, the NRA goes into high visibility, high volume scare tactic mode. Any measure, no matter how reasonable, is attacked as part of a slippery slope of the liberal agenda to confiscate all guns from all people. The NRA argues that we should not restrict ammunition that pierces police vests because to do so would allow the camel’s nose under the tent and further the process that would confiscate hunting rifles from law-abiding citizens.

Such scare tactics work. Every attempt to impose any measure of control over guns increases the membership of the NRA and increases its funding. The more moderate group of gun owners that might otherwise support reasonable gun control measures are persuaded by the scare tactics. Those more moderate members provide the NRA with its political clout in terms of fundraising, membership, and the ability to punish politicians at the polls on Election Day.

If the NRA’s scare tactics were deprived of traction with the more moderate gun owners, much of the NRA’s political clout would disappear. A decision by the Supreme Court affirming an individual’s right to own a gun would foreclose the slippery slope argument. The NRA would then be forced to argue the merits of the individual restrictions without the ability to argue that such measures would have grave consequences far beyond the purview of the actual proposal. We expect that once the slippery slope argument is removed from the debate and the focus is returned to the reasonableness and effectiveness of the particular measure, a majority of voters will favor the enactment of reasonable gun control measures.

In some places, even though a majority of voters support reasonable restrictions on gun ownership, such measures still cannot pass. There is a disparity in the intensity of the two sides. The pro gun forces are much more likely to base their vote on the single issue than the pro control voters. Politicians, fearing the wrath of sportsmen and hunters, do not support the legislation despite the views of the majority.

The intensity of the pro-gun forces is directly related to the NRA’s argument that each gun control measure is a small step towards the ultimate goal of total gun confiscation. By removing any possibility that gun control measures will eventually result in confiscation, the intensity of the hunters, sportsman and moderate gun owners will decline.

A comparison to the political debates over legal abortion may be instructive in this regard. Once the Supreme Court decided that the constitutional right of privacy included the right to terminate a pregnancy, the pro-choice advocates became complacent while the pro-life forces became invigorated. Only when the composition of the Supreme Court changed to pose a perceived threat to the right did the pro-choice advocates reawaken to exert political power. We expect that a decision upholding the Second Amendment’s grant of individual rights will have a similar effect on the gun control debate.

The best thing that could happen to gun control advocates is for the NRA to win the debate over whether or not the Second Amendment provides an individual right to keep and bear arms. Irony can be sweet.

Friday, September 13, 2002
Voter Anger Rising

The Hill has an interesting article by Allison Stevens concerning the rising anger of voters towards incumbents. Stevens quotes pollster John Zogby as saying:

We’ve discovered that the mood is almost what the Mexican revolutionaries felt around the time of World War I: down with whoever’s up…I do think that the anger is going to give critical mass to the election.

Zogby attributes the rise in voter discontent to a number of factors including economic conditions, the stock market slump, corporate scandals, pedophilia scandals in the Catholic church, the lack of resolution to the War on Terrorism, the continued unrest in the Middle East and a possible war in Iraq.

The Hill identifies eight Senate races that could be affected by the rise in voter anger. Five of those eight involve incumbent Democrats. Those five are Torricelli of New Jersey, Carnahan of Missouri, Wellstone of Minnesota, Johnson of South Dakota, and Harkin of Iowa.

Only three Incumbent Republican Senators are listed as being affected by the rise in voter anger. Those three are Hutchinson of Arkansas, Smith of Oregon, and Allard of Colorado.

One would expect, however, that the recent passage by the Senate of the $6 billion drought relief measure could douse some of the fire of voter anger in the mid-west farm states.

The Senate passed measure would provide relief in South Dakota, Iowa, Colorado, Missouri, Arkansas and Minnesota. Each of those states is listed in the Hill article as having an incumbent Senator being negatively affected by rising voter anger.

Perhaps the most surprising finding of the article was that one of the House incumbents showing “signs of unexpected vulnerability” was Republican Majority Whip Tom DeLay.

Be still my heart.

The Iowa Electronic Market for Control of Congress

The Business School at the University of Iowa operates an electronic market
for certain economic and political events. In that market, people buy and sell (with real money) future contracts dependent on the outcome of certain events such as elections. The IEM has had mixed success as a predictor of Election Day results.

The IEM is currently trading future contracts based on control over the respective houses of Congress. One may purchase a contract which will pay off in any one of four possible outcomes. Those outcomes are (1) Republican control over the House and Senate; (2) Republican control of the House but not the Senate; (3) Republican control over the Senate but not the House; and (4) Republican control over neither the House nor the Senate.

Current market quotes, translated into percentages, lists the chance of each outcome as follows:

Republicans control both the House and Senate 21.9%

Republicans control the House but not the Senate 39.3%

Republicans lose the House, Gain the Senate 5.2%

Republicans Lose House and Senate 35.4%

Toddler Law

The term “law” has a number of meanings. The most familiar meaning is a rule of conduct established by authority to govern actions of individuals. There are a number of sources of such law. The legislature may enact a rule requiring or prohibiting certain conduct. Such laws are statutory. Other law has developed through the decisions of courts based on controversies submitted to them. Such law we refer to as common law. Some people, including Supreme Court Justice Clarence Thomas, believe in Natural Law as a source of individual rights.

“Law” is not restricted to governmental acts. Religious groups have law as well. Examples of religious laws include Jewish dietary law or Catholic Canon Law.

The term “law” also applies to scientific descriptions of the natural world. Thus, there are Newtonian Laws in physics and the law of gravity. Those types of scientific “laws” are discovered through observation of the world and identifying aspects of the world that have sufficient consistency to be termed a “law.”

PLA reader DAW, in the tradition of Sir Isaac Newton, has discovered a set of “laws.” Those laws govern the behavior of homo sapiens between the ages of approximately 1 and 4. They are known as "Toddler Laws." The following is the list of such laws she has discovered. Others may be found:

1. It is not assault and battery if he is your brother.
2. What’s mine is mine.
3. What’s yours is mine.
4. Car doors should only be opened when the vehicle is moving.
5. All food is better if the dog tastes it first.
6. No clothes should be worn when the Preacher comes to visit.
7. If clothes must be worn when the Preacher visits, Mommy’s underwear makes a great hat.
8. Winnie the Pooh videotapes must be played during Breaking News.
9. If Mommy and Daddy are alone in their room with the door shut, enter without knocking.

Wednesday, September 11, 2002

We have added a comment section for each post. We hope both of our readers enjoy it.

Tuesday, September 10, 2002
Autism--- An N of 1

This article tells the wonderful story of Raun Kaufman. The story says that Kaufman was diagnosed as severely autistic at the age of 18 months. His parents refused to accept the professionals' bleak diagnosis for improvement. Instead, they created their own therapy for their son. That therapy involved mimicking the autistic behaviors of their son in an effort to "build a bridge to the child's world, then show them the way out." The examples given in the story are that if Ruan flapped his arms the rest of the Kaufman family would flap their arms. If Raun obsessively spun plates, they would spin plates. The theory behind the therapy is that "autistic children are over-stimulated by the modern world. Unable to filter out the sights and sounds that most of us take for granted, they withdraw into the safety of their own world."

After several years of such therapy Raun showed no sign of autistic behavior, went to regular school and now is a gregarious graduate of an Ivy League University. The Kaufman’s call their therapy Son-Rise and they operate the Autism Treatment Center of America where they treat autistic children with their homegrown therapy.

The story of Raun Kaufman is heart warming and we have nothing but admiration for both Raun and his parents. The recovery of even one autistic child fills us with hope and we rejoice in Raun’s success.

I would note, however, several reservations about the therapy. The therapy started when Raun was 18 months old. He is now 29. The family runs a treatment center for autistic children. Where are the other severely autistic children Son-Rise has cured who went on to graduate from college and live normal lives without any sign of autism? Where are double blind studies across a large number of children with a control group receiving placebos that show statistically significant improvement?

The story states that “there have been no scientific studies of the programme, and it is not known why it helps some children more than others.” Why have there been no scientific studies?

Raun Kaufman is quoted as saying “everyone I can think of who really seriously implements the programme has benefited in some way. That is what I am really excited about, not that we can create a whole bunch or Raun Kaufmans if everybody does Son-Rise.”

I believe that any non-destructive therapy that is “seriously implemented” and involves a high level of parent interaction with the autistic child would benefit the child “in some way.” In addition, instead of a universe of children that Raun Kauffman “can think of” why are there not statistics of the exact number of children who have “seriously implemented the programme” and exact measurement of the ways that they have benefited and the degree of the benefit?

I have not studied the Son-Rise program in complete detail. These comments are based on the article linked to above, a review of the center's web site, review of literature on the Son-Rise program as well as a number of reviews of the Son-Rise book and experience in evaluating “cures” for autism.

Please do not misunderstand my point. I mean absolutely no criticism of Raun Kauffman, his parents, or the Son-Rise program. Some of the elements of the Son-Rose program make some sense. Our goal, however, is to locate a therapy to help our son. When considering Son-Rise, it appears that the evidence would support the following:

1) Ron Kauffman was autistic;
2) His parents followed a certain course of therapy;
3) He no longer exhibits autistic behaviors.

That is all. The evidence does not support the proposition that the therapy caused the improvement. That does not mean that the therapy did not work in Raun Kaffman’s case. It does not mean that it would not work for another child. It simply means that no evidence exists as to whether or not the therapy caused improvement in Raun Kaffman or any other child.

I believe that before parents of autistic children make the investment of time, money and emotional reserves in the hope that a therapy will cause recovery, evidence should support the hope. An N of 1 is simply not persuasive.

Many thanks to Zizka for bringing the article to my attention.

But Mr. Cheney...

In his interview with John King on CNN yesterday, Vice President Dick Cheney described part of the Bush administration’s reasoning regarding regime change in Iraq.

We know he has this capability. We know he is developing it. We know he sits on top of 10 percent of the world's oil reserve. He has got a significant cash flow coming in to finance acquisition and procurement projects, and the world has sort of gotten relaxed about him, if you will, and a lot of people are doing business with him now. So we find ourselves in a situation where there is a growing threat. It needs to addressed. It's not just a U.S. problem; it's also a problem for the United Nations.

According to Mr. Cheney, Saddam’s cash flow is what allows him to finance acquisition and procurement projects necessary to develop weapons of mass destruction. Saddam gets his cash flow from selling oil. We destroyed his oil production facilities and equipment in the Gulf War. How did he rebuild his oil industry? According to Mr. Cheney it was because “a lot of people are doing business with him.”

We have two questions.

Were the people who did business with Saddam aiding terrorists? and

What terrorist-aiding, America-hating, moral relativist, blue state, fifth columnist appeaser sold Iraq the spare parts necessary to repair his oil production industry so that he would have the cash flow necessary to finance the development of weapons of mass destruction? Whoops.