Utah Guns Forum banner
1 - 14 of 14 Posts

·
Registered
Joined
·
8,757 Posts
Discussion Starter · #1 ·
This link was posted over on OCDO. It was so good I had to share it here.

http://www.firearmsandliberty.com/embar.html

What makes it really good is that the author is a law professor who is inclined to support gun control, but has enough intellectual integrity to analyze the issues honestly.
 

·
Registered
Joined
·
1,323 Posts
Thanks Swillden.

Tarzan
 
G

·
It's the same as all the others: "Blah, blah, blah, legal mumbo-jumbo, big words, everyone gets it but Paul Helmke. Blah, blah, blah."

Same-old, same-old. We know we're right. It _STILL_ hasn't convinced the disarmers. And no amount of essays are going to change this.

Also, Swillden, what do you do for a living? You seem to know a lot 'bout law.
 

·
Registered
Joined
·
8,757 Posts
Discussion Starter · #4 ·
Ishpeck said:
It's the same as all the others: "Blah, blah, blah, legal mumbo-jumbo, big words, everyone gets it but Paul Helmke. Blah, blah, blah."

Same-old, same-old. We know we're right. It _STILL_ hasn't convinced the disarmers. And no amount of essays are going to change this.
You're just too impatient :)

This stuff takes time. It took most of a century to get where we are, and it'll take about as long to roll it all back.

Essays like the one I linked to are a really important part of the process. When law professors write stuff like that, it doesn't have much effect on judges, but it has a lot of effect on law students, who become attorneys who argue the law, then judges who interpret the law or politicians who make the law. I've often read that a big part of progress in science is waiting for the old generation to die off, so that new ideas can be fully accepted. I think the same thing happens in legal theory.

What's happening now, as a result of Heller and, to a smaller degree, essays like that one, is that the second amendment is beginning to be taken seriously. With some luck, and some work, we'll get a new generation of attorneys, the burgeoning jurists, law professors and legal scholars and theorists, who grow up fully accepting that the second amendment cannot be ignored, and that it was intended as a protection against tyranny.

Ishpeck said:
Also, Swillden, what do you do for a living? You seem to know a lot 'bout law.
Software engineer, specializing in security. I got interested in law a few years back because of questions about copyright and contract law (mostly the SCO v IBM case). An essay by Lawrence Lessig about how software code is like legal code gave me the confidence to start reading the law and judicial opinions, and I immediately found that with a little effort I could understand whatever corner of the law I chose to dig into. It also helps that I have a sister-in-law who is an attorney and who is nice enough to answer my annoying questions, and to do so in depth and without charging me!

So, I have acquired a decent understanding of copyright law, Utah and federal gun law, a little smattering of contract law and I'm just starting to learn a little constitutional law. It's fun.
 
G

·
swillden said:
You're just too impatient

This stuff takes time. It took most of a century to get where we are, and it'll take about as long to roll it all back.
It'll probably take more than that.... shouldn't have to but people are amazingly stubborn.

swillden said:
Essays like the one I linked to are a really important part of the process.
Notice how a lot of this essay's content was drawn from old sources? Commentary by Framers, Justices, and thinking people all around. Very old sources! More than a century old. And yet, all this evidence, piled up since the dawn of the United States and before was never enough to convince the disarmers they were wrong from the beginning.

Y'know how a lot of us say the disarmers must be stupid? How they insist on using the same, ineffectual weapon (legislation) against crime? We go "It's already illegal to rape, rob, and murder, why should disarmament laws be adhered to anymore?"

Yeah, well that argument goes both ways: It's already illegal to infringe upon our right to keep and bear arms. And yet, in the face of this law, elitists the world over are still convinced that they should.

The lower courts in the United States v. Miller case ruled in Miller's favor when he asserted that the NFA was illegal. It was self-evident to people, even then, that gun control was wrong. And yet, in the face of the evidence, SCOTUS ruled in the NFA's favor.

America has been arguing the sound principles of public armament for centuries now. And as time has worn on, we find ourselves more and more shackled by the encroaching sickness of oppression.

It didn't take us "most of a century" to get to where we are, it took all of two. The whole time, those who promoted armament did so with the same tools we use today: "The Second Amendment This" and "Personal Protection That."

Our truth, our evidence, and our sense amount to nothing. They are outright ignored! In the court of disarmers, the only admissible evidence is the number of children killed or the number of whacko's that get reported.

WE NEED A DIFFERENT TACTIC! One that's decisive and unequivocal. We've been doing this nickle-and-dime approach with a Heller here, and a NRA compromise there for far too long and it's taking us in the WRONG direction.
 

·
Registered
Joined
·
1,091 Posts
:agree: :agree: We need to stop taking it on the chin, and start fighting back. Use the antis tactics and tricks. The best way to fight a guerilla war is to fight it their way. No lies or deceits, just the truth, but more open then now. We need not be worried about who's feelings we hurt, by telling the truth. If it is a lie we need to point out that it is and who said it is a liar. Like I have said before we need to go on the offensive and keep the left wing reeling back.
 

·
Registered
Joined
·
8,757 Posts
Discussion Starter · #7 ·
Ishpeck said:
Notice how a lot of this essay's content was drawn from old sources? Commentary by Framers, Justices, and thinking people all around. Very old sources! More than a century old. And yet, all this evidence, piled up since the dawn of the United States and before was never enough to convince the disarmers they were wrong from the beginning.
Old sources, but it's not until recently that serious historians and legal scholars have begun putting it together specifically in this context.

Ishpeck said:
America has been arguing the sound principles of public armament for centuries now.
No, we haven't.

We have NOT been arguing this. Not at the levels where it matters. We went nearly 70 years without a single real 2A case before the Supreme Court. There has been no significant debate on gun control laws until the last 30 years or so, until the Brady Bunch (under their pre-Brady name) started it, and of course they framed it their way. The pro-gun side, such as it was, was reactive and tentative. Until Gura dragged them there, the NRA was deathly afraid of going to court, and they focused their lobbying on practical justifications to limit gun control, lacking the confidence that the second amendment would stand up.

Ishpeck said:
Our truth, our evidence, and our sense amount to nothing. They are outright ignored!
That is exactly the point! This issue HAS been completely ignored. Not any more. People outside the gun culture are now talking about the second amendment.

Ishpeck said:
WE NEED A DIFFERENT TACTIC! One that's decisive and unequivocal. We've been doing this nickle-and-dime approach with a Heller here, and a NRA compromise there for far too long and it's taking us in the WRONG direction.
Well, first of all, there hasn't been "A Heller here, and an NRA compromise there" -- that implies that something like Heller has happened before. It hasn't. That's why it's so huge.

Second, what other tactic would you suggest?
 

·
Registered
Joined
·
2,600 Posts
swillden said:
Second, what other tactic would you suggest?
That was my question too. The only one I can think is taking the discussion to the general public via mass-advertising and mass-education on our own dime and our own time.
 
G

·
swillden said:
Old sources, but it's not until recently that serious historians and legal scholars have begun putting it together specifically in this context....

... We have NOT been arguing this. Not at the levels where it matters.
I'm not sure what other context these statements could be taken in:

Thomas Jefferson said:
What country can preserve its liberties, if it's rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms... What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure.
And...

Alexander Hamilton said:
Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped...
And again, by nationalistic big-Government boy Hamilton:
Alexander Hamilton said:
If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government... The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
What other context is there than public armament? Indeed, these things have been asserted by a free people since before we declared independence from the Crown.

Evidence is ripe that people have thought about it and even argued it -- for centuries. The Federalist Papers are truly just that: Arguments about liberty -- which have invariably included arguments about private citizens being armed. Is the Declaration of Independence "not at the level where it matters?" What about the Constitutional Convention where, after weeks of debate and deliberation, some still refused to sign the Constitution without a Bill of Rights installed?

swillden said:
Ishpeck said:
Our truth, our evidence, and our sense amount to nothing. They are outright ignored!
That is exactly the point! This issue HAS been completely ignored. Not any more. People outside the gun culture are now talking about the second amendment.
The ignorance is not an accidental one. It is deliberate and calculated. Like the Inquisitors who refused to look into Galileo's telescope -- because they "knew" what the Universe looked like.

There is a key difference between ignorance and choosing to ignore evidence.

I still assert that those who work against public armament do so deliberately -- knowing full well what they are doing. Like Ben Bernanke admitting to Milton Friedman that bankers and government controls caused the Great Depression, and yet, insisting that he can take the same steps and get a different result. Like the teenagers who think they can dress skanky on prom night and lock themselves far away from the crowd and still expect to be chaste.

These people LIE to themselves. They delude themselves. They feel threatened by anyone who does not join them in their delusion.

Expecting the disarmer, consciously bereft of reason as he is, to see the light when adequately educated is like trying to talk-down the crack-head who's cornered you and intends to add your viscera to the globular collection on his hatchet.

swillden said:
... there hasn't been "A Heller here, and an NRA compromise there" -- that implies that something like Heller has happened before. It hasn't.
There is Miller vs. The US. It was another Heller-like case. But in that situation, we lost. In every case, by the time things get to court, it's pretty much already too late. By then, you've gotta have friends in high places or you're screwed.

Battling things in court is the tactical solution. Battling things in legislature is probably closer to the strategic solution. But that means you gotta take on the Republicrat Landsraad.

swillden said:
... What other tactic would you suggest?
I don't know.

And that's the frustrating part.

There's a long-term solution -- but I can't see any good short-term solutions.

Long-term, you gotta indoctrinate children. Take over education and help shape the minds of future voters. Let's just hope we last that long.
 

·
Registered
Joined
·
2,600 Posts
Ishpeck said:
There's a long-term solution -- but I can't see any good short-term solutions.

Long-term, you gotta indoctrinate children. Take over education and help shape the minds of future voters. Let's just hope we last that long.
Frankly, that's the ONLY solution.
 

·
Registered
Joined
·
8,757 Posts
Discussion Starter · #11 ·
Ishpeck said:
swillden said:
Old sources, but it's not until recently that serious historians and legal scholars have begun putting it together specifically in this context....
... We have NOT been arguing this. Not at the levels where it matters.
I'm not sure what other context these statements could be taken in
Umm, those quotes are from people who were long-dead and out of the debate by the time the anti-gun movement started. Yes, their words were written down, but those were alive and in the debate were ignoring them, until recently.

Ishpeck said:
here is a key difference between ignorance and choosing to ignore evidence.
You're talking about something very different from what I was talking about. I wasn't addressing the fact that the anti-gunners ignore all of the historical debate. Obviously they're going to do that. I was talking about the fact that among policymakers, judges, and legal theorists there has, until very recently, been NO debate. At all! There's no question of ignoring the old debate, because the issue wasn't even being talked about.

Heller has made a big difference there. The second amendment can no longer be ignored.

Ishpeck said:
I still assert that those who work against public armament do so deliberately -- knowing full well what they are doing.
Of course they do. And you're never going to convince them otherwise. But they don't matter, because there aren't enough of them to make a difference -- unless they can motivate others to do their bidding, others who haven't heard the other side of the argument because no one is talking about it. Now, the pro-gun lobby has gotten organized, is actively pushing legislation every year, forcing the antis to spend their energy responding to it rather than pushing their own. Now, the Supreme Court has established the basis needed to begin a serious legal assault on the bad laws that are on the books. Now, legal scholars and historians are seriously discussing the import of the second amendment, and law students are reading their discussions.

Ishpeck said:
Expecting the disarmer, consciously bereft of reason as he is, to see the light when adequately educated is like trying to talk-down the crack-head who's cornered you and intends to add your viscera to the globular collection on his hatchet.
Of course it is. Who cares?

Ishpeck said:
swillden said:
... there hasn't been "A Heller here, and an NRA compromise there" -- that implies that something like Heller has happened before. It hasn't.
There is Miller vs. The US. It was another Heller-like case. But in that situation, we lost. In every case, by the time things get to court, it's pretty much already too late. By then, you've gotta have friends in high places or you're screwed.
You're supporting my point -- Miller WAS the last real 2A case, and it was almost 70 years ago, and it wasn't Heller-like at all. It predated 99% of the gun legislation in this country, and the law it addresses, the NFA, was much, much milder than modern gun laws.

Also, Miller was a crook, and one who didn't even bother to present his side of the case to SCOTUS. The gun-rights lobby didn't intervene because it didn't exist (the NRA existed, but it wasn't a political organization). It's no wonder it went the wrong way.

Ishpeck said:
Battling things in court is the tactical solution. Battling things in legislature is probably closer to the strategic solution. But that means you gotta take on the Republicrat Landsraad.
Battling things in court is also a major part of the strategic solution. If carefully-chosen and precisely-targeted court cases (like Heller), can build a body of precedent supporting a powerful interpretation of the second amendment, many of the legislative battles won't even have to be fought.

By getting the courts to uphold a strong second amendment right, we knock the anti-gunners WAY back on their heels, because their only hope then is to get a constitutional amendment to repeal the second. They're going to have a seriously tough time raising support to repeal any part of the Bill of Rights. Of course, in the nearer term they're going to try to argue before the courts that "reasonable restriction" include banning darned near everything and registering and licensing the rest. So we really need to get SCOTUS to rule on two more things: complete incorporation and a stricter standard than rational basis. Ideally, strict scrutiny.

Ishpeck said:
swillden said:
... What other tactic would you suggest?
I don't know.

And that's the frustrating part.

There's a long-term solution -- but I can't see any good short-term solutions.

Long-term, you gotta indoctrinate children. Take over education and help shape the minds of future voters. Let's just hope we last that long.
WHICH children? All of them, of course, but which ones are most crucial? The ones who will be judges and lawmakers.

In other words: The lawyers. Having law professors talking about the second amendment, and about how it really does mean what it says is a HUGE step forward, because the up-and-coming lawyers are reading this stuff. I think it's also great that Gura is such a young guy, making him a much better role model/hero for young attorneys out to change the world.

IMO, we're on the right track. We need to stay the course, but continue ratcheting up the pressure.
 
G

·
Alright, Swillden, what I'm getting out of this is that you believe we should convince judges, lawyers, and policy makers using the age-old tools that have been mysteriously buried for the past few decades. Like in some kind of anime where the protagonists dig up ancient, giant robots or some-such.

We then engage disarmers in court using these ancestral weapons.

And you concur that the disarmament crowd is impossible to reason with -- but that's okay because we're out to convince judges and lawyers, not the Californian aristocracy.

Which seems sound and reasonable.

Until you realize that there are no non-activist judges.

Ginsburg and Stevens are no strangers to the Constitution. They've probably seen the kinds of "YAY FOR GUNZ!" tripe I can dig up several bajillions of times. They even had some pretty compelling evidence presented by their fellow Justices. Guess what it amounted to: Dissenting votes. They think they've lost -- that America is suffering for this. They're convinced of it.

When an activist judge just so happens to be activist in you favor, you can win a case in court -- and guess what: The government, in the face of this law, will still infringe upon your rights. All the while claiming it's for yours and society's good. DC's response to the Heller case is a classic example of what's written in the Declaration of Independence:
The Declaration of Independence said:
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.
Ask for respect and only get kicked in the teeth.

The disarmers we can't convince -- the ones who there simply is no reasoning with -- yeah, they're the ones that you specifically propose we try convincing.
 

·
Registered
Joined
·
378 Posts
Good discussion here. :)
 

·
Registered
Joined
·
8,757 Posts
Discussion Starter · #14 ·
Ishpeck said:
Alright, Swillden, what I'm getting out of this is that you believe we should convince judges, lawyers, and policy makers using the age-old tools that have been mysteriously buried for the past few decades. Like in some kind of anime where the protagonists dig up ancient, giant robots or some-such.
Not long-buried tools. Just tools that were unused by pro-gun groups until the antis showed us how and then (slowly) convinced us that we had better start using them back. What you seem to miss is that this stuff takes time. Lots and lots of time. Court cases take years, and they're among the quickest of the tools. Enacting significant legislation takes decades, and changing public opinion takes generations. The antis have a big headstart, but we've made up a lot of lost ground.

Ishpeck said:
Ginsburg and Stevens are no strangers to the Constitution. They've probably seen the kinds of "YAY FOR GUNZ!" tripe I can dig up several bajillions of times. They even had some pretty compelling evidence presented by their fellow Justices. Guess what it amounted to: Dissenting votes. They think they've lost -- that America is suffering for this. They're convinced of it.
Did you read the dissents? Even the dissenters agreed that RKBA is an individual right, they just disagreed on the implications of that. On the most fundamental point of the Heller question, the result was 9-0. I think a lot of people have missed that.

Ishpeck said:
When an activist judge just so happens to be activist in you favor, you can win a case in court -- and guess what: The government, in the face of this law, will still infringe upon your rights.
I completely disagree with your characterization of all judges as activists. I've read a lot of rulings, on a lot of cases, and what I've found is that the vast majority of judges, especially federal judges, are very good, very thorough and very careful to rule on the law, not on their opinions.

The Heller case is an interesting case in point. You were earlier complaining that the ruling didn't go far enough -- but in order for the ruling to do what you wanted would have required major activism on the part of the court!! You say that all judges are activists, but that's not what Heller showed.

Ishpeck said:
DC's response to the Heller case is a classic example of what's written in the Declaration of Independence:
The Declaration of Independence said:
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.
Ask for respect and only get kicked in the teeth.
I COMPLETELY disagree with this characterization of the Heller ruling, particularly since the petitioners got EXACTLY what they asked for. 100%.

Ishpeck said:
The disarmers we can't convince -- the ones who there simply is no reasoning with -- yeah, they're the ones that you specifically propose we try convincing.
Absolutely not. Ignore the disarmers. I believe I was quite clear about that in my last post, so I'm not sure why you bring it up again.

Focus on the large body of future decisionmakers who don't have a strong bias one way or the other. And, really, you don't even have to convince them that they should support gun rights. All you have to convince them of is that the second amendment supports gun rights.
 
1 - 14 of 14 Posts
Top