Subdivisions

Recently in the pro-gun bloggers community there has been some debate between the Absolutists & the Incrementalists. Some of the relevant posts are listed below.

Absolutists vs. Incrementalists from Say Uncle

Continuing to mine an old tradition from Toys in the Attic

I Haven't Heard Language Like This Since Billy Beck from The Smallest Minority

Victory Is Ours!!! from The War on Guns

The Joy of Victory or the Agony of Defeat? from Captain of a Crew of One

Permitting the Right from The War on Guns

I offered to have a debate an argument open discussion with Kevin of the Smallest Minority on this very issue some time back, but he didn't feel the timing was right for it then. (Course times do change.)

If you're new here then you might not know (though about 2 seconds of browsing should clue ya in) but I fall very firmly in the Absolutist camp. So if you wished to read about why an Incrementalist strategy is a good thing you're in the wrong place.

One of the principle objections to the Absolutist approach is that it's ultimately unattainable. No one is going to be okay with a 13 year old convicted murdering walking into a hardware store & buying a belt fed machine gun so he can carry it concealed & it all be legal as of tomorrow - or so the gist of the argument goes. We want too much & too quickly which will doom us to having nothing.

I heartily disagree.

The topic that started this current internet spat amongst gun bloggers was Kansas & Nebraska becoming "Shall Issue" states.

I should point out that Gunscribe of From the Heartland has made a very convincing argument that the Nebraska law was not necessary. Now instead of a push for recognition of "Vermont style" carry Nebraskans are going to have to deal with the downsides of a permitting system.

I’ll reprint an argument I used in It ain't an argument if it ain't Hobbesian to illustrate my feelings on ‘Shall Issue” CCW permit systems:

Actually it's not a step in the right direction. While it may seem so, in reality the Shall Issue permit laws are simply reinforcing the legislature's belief that they have the authority to regulate, condone or prohibit what is a Right. It's just that in the case of Shall Issue they're condoning the carrying of arms, albeit conditionally, so those who don't look deeper than the surface see this as a good thing.

But once a legislature establishes that they may permit something it is fallacy to believe they cannot prohibit something. The same states that permit you to carry with the right piece of paper can turn around at any time & prohibit carrying arms permission slip or no.

Where my "greedy" solution is preferable is that once a Right is established & recognized by law it's much harder to do away with it at a legislature's whim. Right now the stats seem to be in our favor, with at best a decrease in crime in states with liberalized carry laws & at worst no measurable difference. But in ten years if a study comes out that shows an increase in violent crime in shall issue states then the only thing that can stop the legislature from prohibiting concealed carry is an intensive effort by pro-gun voters & orgs. If the NRA is a prominent voice in such a state I'd expect there to be some sort of compromise instead of an all out fight.

But the precedent that they have the final say over the matter will have been established because some people naively think that shall issue permit laws are a first step towards the recognition of the Right to carry & others just see the short term benefit for themselves: being a part of a privileged class that the state trusts with a Right.

In the long run we'll all be better off if we establish that carrying openly or concealed is not something any legislature has any say on. If that's truly being "greedy" then call me Scrooge all day long…

…But even in Shall Issue states there is a "rule of man" component: sheriffs & police chiefs usually insist it's included under the guise of public safety. It's typically called the "naked man" exception. The theory is that it's necessary to prevent someone with no criminal record but who is demonstrably unfit to carry from receiving a permit. After all, if a person has a clean record but walks around the streets naked then he should be considered to be incapable of safely handling a permit. So even Shall Issue laws do have a provision for arbitrary denial.

Colorado's new Shall Issue law has such a provision & is worse (in many practical ways) than the May Issue law it replaced. But it has the magic "Shall Issue" prefix & allows people in other states to carry in Colorado if they have the required paperwork, so the short-sighted cannot fathom it's a bad thing practically or principally.

The following is in response to Greg’s assertion that “Shall Issue” CCW laws will be followed by more lenient systems eventually leading to permitless carry. Hell, I’ll just include his statement (in quotes):

"Now, here's the sneaky part that I think escapes some absolutists: Once the shall issue permits are national, we can apply pressure to make the criteria for issuance less stringent. And that will happen.
And then we can make them even less strict, until the only logical conclusion is to do away with the permit system altogether."

That idea doesn't escape me. I just do not believe that it will happen.

Alaska is the only state I'm aware of that had a Shall Issue law & made the change to not requiring a permit. Florida had the first Shall Issue law (if I remember correctly) & they have not made any moves whatsoever (that I'm aware of) to eliminate permits or even lessen the requirements. I would think that if Florida cannot do this despite its long record of Shall Issue permits not causing any harm (in terms of crime) then other states are less likely to be able to push something through. In Colorado a few months ago we had a bill proposed in the House that would have eliminated the permit requirement. It was killed in committee. Know who killed it? Republicans on behalf of the NRA.

So in Colorado which is much closer to being a free state than many others, we cannot get a permit-less concealed carry bill passed because of the alleged pro-gun choice of the two major parties.

To sum it up the strategy is like trying to sell a car & setting the asking price as exactly what you want. You leave yourself no room to maneuver. Whereas if you take the absolutist approach (whether you believe it or not) it's like setting the selling price of the same car a few thousand higher. You may not get your initial price but you stand a better chance of getting what your bottom line price is.

If we push for permit-less carry now & we do it correctly, then there is a chance we'll get it. Not easily but it is possible. If we take the incremental approach (which if you read this post you'll see that I don't think it's effective for gaining lost ground) then we lose ground if compromise becomes necessary (as the non-absolutists seem to argue).

Now I think that sums up the Absolutist position (or at least my understanding of it) on “Shall Issue” CCW laws & their detriments. But “Shall Issue” is just a smaller part of the disagreement. That disagreement revolves around strategy.

In short, the pro-gunners have no coherent strategy. The only reason we have anything left at all is simply because the other side is even worse than we are at implementing a strategy (although I should point out that they do at least have one). That’s not to say they haven’t been kicking our asses over the last 72 years or so – just that they haven’t been nearly as effective as they could have been.

We do have tactics though – which is where our chief disagreement comes in. The Incrementalists seem to think that the legislature is the preferred route to winning back lost ground, whereas the Absolutists would prefer a court decision to regain abandoned territory.

I’ll be the first to admit that both have their disadvantages & I have very little faith in either. However the court option seems to be more advantageous to me for a number of reasons:

Financially it’s less burdensome. I’m going on very rough estimates but I’m assuming that a successful lobbying effort in a state would cost between $100,000 & $1,000,000 easily. A successful court action would probably top out in the low hundreds of thousands & could be as cheap as a few tens of thousands.

The Vermont court case (State v. Rosenthal) that invalidated the state’s law which prohibited concealed carry presumably cost 4 digits in today’s dollars (but I will concede that the economics of jurisprudence were very different back then).

Sticking with the example of the Vermont court case there's another reason i like this method; when the ruling is right it's really right. The court treated carrying as a Right. Not as a privilege the way that most legislation does nowadays.

Course when a court decision goes wrong it can go really wrong. Just about every federal court has twisted u.S. v. Miller to mean that the 2nd amendment guarantees a collective Right & many state court opinions have wished away very explicit acknowledgements of the Right to Arms in state constitutions.

But a court case can reverse a law much more effectively & decisively than a legislature can.

Let's say that Colorado decided to eliminate the prohibition on carrying concealed without a permit. It would not be that difficult for the legislature to convene the following year & prohibit it outright. With a court case the legislature can be restrained (though courts can & occasionally do reverse themselves).

But here's the part that sways me towards a judicial solution (all other things being equal); if we win we win big, but if we lose big that can be used to our advantage as well.

How?

Let's say that SCOTUS decides to take a direct 2nd amendment question. A lot of folks would quake in their boots because the make up of the court isn’t right or that the plaintiff or defendant isn't as sympathetic as we'd like. Not me. If SCOTUS rules we have an individual Right then we've beat decades of bad circuit court precedent. If they rule there are some limitations to that individual Right then while not perfect we at least have something to work with & we still trump decades of bad circuit court case law. If they rule against us outright we can still win.

Remember Kelo v. New London? A bad decision for a host of reasons. But some good came out of it. In many states legislation has popped up to negate Kelo's effects. Similarly if SCOTUS told us we had no right to Arms according to the federal constitution it'd propel some states to enact even stricter guarantees of that Right.

New York, California, Illinois, New Jersey & a few others would remain unchanged. But Arizona, Colorado, the Carolinas & many more would have the potential for enacting very strong acknowledgements of the Right to Arms. Hell, it might even get Texans to be able to carry openly! :)

Not that it's an ideal situation to have a bad ruling from SCOTUS, but we can use even bad rulings to our advantage if we have a strategy. Unfortunately that’s a mighty big “if”.

What we have now in the pro-gun world is a push to make all the states “Shall Issue” CCW. That seems to be the main focus of most state level action. Nationally we had two big pushes in the last few years. The first was to make the “assault weapons” ban go away. The second was to prevent frivolous lawsuits from bankrupting the manufacturers. Now that those are accomplished on the federal level I can only guess that nationwide reciprocity of state issued concealed carry permits will be the next thing to do in D.C.

I can only guess because we have no cohesive strategy! Concealed carry laws seem to be an end unto themselves with no segue that I can see into anything else. Sure it’d be very nice to imagine that the NRA will start pushing for permitless carry in “Shall Issue” states but since they (&/or their state affiliates) have opposed permitless carry laws when they’ve been introduced I cannot see that as the “next step”. Alaska is the only state that has made the jump from “Shall Issue” to permitless carry & my hunch is that the NRA jumped on board after they saw it was going to succeed with or without them (though I could be mistaken about that).

There are a host of things I’d like to see pushed on the federal level – the majority of them repeals of laws. But that is not something that is being discussed by the NRA or any other group that I know of. Well I shouldn’t say that – it’s not being discussed in terms of pertinent implementation. No one is setting out a schedule to push for repeals of any federal firearms laws.

It’s been used as a condemnation of Absolutism that we’ve got no victories under our belt. I’d disagree & point to Vermont (even though they’re not perfect, just as close as we’ve come lately). But I’d also turn things around & point out that Incrementalists have tentative victories at best.

Let’s look at a few things to put us all in the right perspective:

1927: The first federal firearms law. It prevents mailing firearms that are capable of being concealed on the person.

1934: National Firearms Act levies a $200 tax on automatic weapons, short barreled shotguns & rifles & sound suppressors.

1938 Federal Firearms Act which required a one dollar per year license for firearms dealers (including gunsmiths), established a record keeping requirement & prohibited sales of arms that had been shipped in interstate commerce to those indicted for or convicted of violent crimes, or to those who lacked the proper state &/or local permits for possession of arms.

1968 Gun Control Act prohibited all mail order sales of firearms, created stricter standards for persons prohibited from buying firearms that had been shipped in interstate commerce & expanded that to mere possession, banned imports or firearms that did not have a “sporting purpose” as determined by the Secretary of the Treasury, increased the record keeping requirement for gun dealers & gunsmiths, Amended the NFA by prohibiting registration of any automatic firearm made before a certain date & adding additional types of weapons to the NFA

1986 Firearms owners Protection Act amended GCA to clear up some language regarding prohibited persons as well as make more clear what constituted violations of the license to sell or deal in firearms provisions. It created an exception to state or local laws prohibiting firearms to travelers (as long as the firearms were inaccessible), cleared up &/or simplified the record keeping requirements for dealers, clarified some case law which was deemed as too harsh an interpretation of the legislative intent of the GCA & banned registration of any machine gun made after a certain date. It also made a part applicable to be defined as a machine gun, instead of the complete weapon itself or even the receiver of such a weapon.

1986 Armor Piercing Ammunition for handguns is banned

1989 “Assault weapons” were banned from importation

1990 Gun Free School Zones Act prohibited the possession of a firearm within 1,000 feet of a school with certain exceptions.

1993 The Brady Handgun Violence Prevention Act initially required a 5 day waiting period on firearm transfers & was supplanted by the National Instant Check System 5 years after enactment. This check is done on all sales of firearms from a federally licensed dealer.

1994 Violent Crime Control and Law Enforcement Act banned the new manufacture of “assault weapons” & ammunition feeding devices capable of holding more than ten cartridges. It also prohibited the sale, delivery or transfer of a handgun or ammunition only suitable for a handgun to a person under the age of 18 with a few exceptions. It also prohibits anyone under 18 from possessing a handgun or ammunition only suitable for a handgun with a few exceptions.

1996 National Defense Authorization Act 1996 Changed the Director of Civilian Marksmanship program to the Civilian Marksmanship Program, making it a private enterprise rather than a government one.

1997 Department of Defense Appropriations Act, 1997 was amended to prohibit those convicted of domestic violence misdemeanors or subject to domestic violence related restraining orders from possessing or owning firearms. It’s popularly known as the Lautenberg Amendment. The appropriations bill was also amended with a re-enactment of the Gun Free School Zones Act which had been struck down in 1995 by the Supreme Court as being unconstitutional

2002 Arming Pilots Against Terrorism Act allowed for commercial pilots who underwent a convoluted & burdensome process to carry arms while in the cockpit of their aircraft as “Federal Flight Deck Officers”.

2004 “Assault Weapons” ban sunsets

2004 National Concealed Carry for Cops law makes certain retired law enforcement officers eligible for a permit to carry a concealed firearm anywhere in the u.S.

2005 Lawful Commerce in Arms Act becomes laws, which limits frivolous suits filed against firearms manufacturers.

This is by no means a complete list of firearms laws on the federal level but I think it is fairly representative of the way things have gone. Since 1927 we’ve had 1 mixed law (The FOPA, which was a good idea but did not go far enough in fixing the GCA, plus it was detrimental to automatic weapons ownership & possession), 1 neutral (the CMP being created), 1 repealed (the “Assault weapons” ban sunset) 2 victories for subsets (The National Concealed Carry for Cops law & the Arming Pilots law) & 1 general victory (the Lawful Commerce in Arms act).

Being very very generous we could condense that to 6 “victories” out of the 16 laws I’ve listed. One of those victories sought to correct oversights in previous losses (The FOPA addressing the GCA) , another partially reversed a bad law not mentioned in this list (the armed pilots law partially negating the prohibition on carrying arms on planes), one victory was merely the sunset of a law (the “assault weapons” ban) , one victory being only a victory for a class of people used to exemptions from firearms laws (the concealed carry for cops bill), one being neutral (in that there are pros & cons with privatizing the Civilian Marksmanship Program) & one a victory (the Lawful Commerce in arms act).

But I’ll grant for the sake of discussion 6 “victories” since 1927. 5 of those occurred since 1996. All of them occurred since 1986.

So since 1996 we’ve had 5 wins & two losses (Lautenberg & re-passing of Gun Free School Zones). Since 1986 we’ve had 6 wins & 6 losses (not including the initial passage of the Gun Free School Zones Act & the “assault weapons” ban).

With a very generous acceptance of what constitutes a “win” then we’re breaking even.

If we go by my standards then we’ve won 2 with 2 ties & 1 that’s really too ambiguous to call versus 7 losses.

With a very generous acceptance of what constitutes a “win” then we’re breaking even.

If we go by my standards then we’ve won 2 with 2 ties & 1 that’s really too ambiguous to call versus 7 losses.

So optimistically we’re holding the line. Pessimistically we’re still losing. Realistically we’re probably somewhere between breaking even & definitely losing.

That’s just the federal laws. State laws – well honestly there are too many for me to even want to donate the time to summing them up & listing them.

Concealed carry. Yes a lot of states have some form of concealed carry permit law now. However concealed carry permit laws are still gun control. Yes they're better than an outright criminalization of concealed (or any form of) carry, but let us not forget that it's still gun control.

Where we have made some ground state-wise is in self defense laws. Specifically I mean the laws recently passed in some states which eliminate the "duty to retreat" when threatened or attacked outside your home. But on the heels of that we've been shooting ourselves in the foot by trying to get private property owners to allow us to pack on their property against their wishes.

The point I'm trying to make is that the Incrementalists haven't done as well as they think if we assume their goal is an end to prior restraint based gun control laws. Not that the Absolutists have victories galore, but there is at least a clear & discernable goal amongst us.

Judicial versus legislative? Really it's a toss up. It's cheaper to win in court & a more stable victory, but the wins are seldom. It's easier but more expensive to get the legislature behind you, but when you do it can all be undone in the next legislative session, or a "compromise" tears the heart out of your bill.

The problem I have with Incrementalism is simply that it's hard to determine if there's a goal beyond the effort being made at the moment.

Let's take the concealed carry permit laws in the various states as an example. if I'm catching things right on the map at the bottom of Kevin's post then in 1986 there were 32 states that permitted concealed carry (8 had "shall issue" permits & 24 had "may issue" permits) & Vermont which didn't interfere with your right to carry concealed or openly at your discretion.

In 1994 Alaska passed a "shall issue" law. In 2003 they passed a "Vermont" style law. No permit required, though one was available if you chose to get one (for instance if you wished to carry in a state other than Vermont).

One state in 20 years of pushing for liberalized carry laws has went from an outright prohibition on concealed carry to treating it as a Right (I should note that open carry was never proscribed in Alaska). Most of the other states have been content to make its people grovel for permission & pay a bribe in order to carry the most effective means of protection underneath their coats.

I'll correct myself - a few states have had bills introduced that would do away with the permit system altogether (Wyoming, Colorado & Virginia if my memory serves). But those bills have been opposed not just by the "blood in the streets" camp of the anti-gunners, but by the NRA & its state affiliates!

So you see that it's not entirely clear to me that the Incrementalists are on the same page as the Absolutists as far as long term goals are concerned.

Different goals can necessitate a different strategy. Whereas I'm still pretty pissed at the Colorado State Shooting Association (the local NRA affiliate) for opposing (&/or not supporting) permitless carry there are a lot of folks who think a permit system is the way to go. & if you're cool with a permit system then there's no need to push for the next step.

Florida went "shall issue" in 1988 (again according to Kevin's map). If they made any sort of push for a permitless system then I missed it entirely. There were 7 "shall issue" states prior to Florida's "shall issue" law but Florida is often upheld as the beacon for "shall issue". Yet no push for permitless carry (that I can recall) has occurred in Florida, let alone an actual permitless carry law.

Even if you accept "shall issue" concealed carry laws as an improvement over "may issue" or no carry at all it's hard to use it as an example of an Incrementalist strategy when it seems to be an end unto itself.

That's where the Incrementalists lose us. A lot of us thought (or were told) that the "shall issue" push would be a step towards permitless carry. But Aside from Alaska no state has made that final critical jump. & in the states where a permitless system was pushed the NRA (who usually spearheads - or takes as much credit as they can for - such laws) opposes it.

If any Incrementalists have gotten this far doubtless you'll be annoyed with me. But I do not make these arguments to belittle you. I'm just trying to point out the flaws I see with the Incrementalist approach.

No approach is perfect. Nothing will let us wake up tomorrow & not have to worry if our barrel is too short or if we have enough u.S. made parts in our rifles or if we have the right permission slips to carry where we're going. But we need to define goals & work towards them.

As an Absolutist I disagree that taking the Incrementalist approach is the best option. But I'm willing to listen to any coherent strategy which results in the end to prior restraint based gun control laws. If something seems credible then by all means I'll try to back it as much as I can. But I don't hear that sort of talk from the Incrementalists. At best I get the promise of permitless carry 20 years down the road in another state or two & honestly I'm not really buying into that considering the recent (last 20 years or so) history.

Absolutists aren't necessarily better. We have goals but as someone put it so succinctly we'll never achieve them by "stomping our feet & yelling that it's not right" (not that I think that's a good general summary of our technique but I'll grant it for the time being).

So now hopefully I've explained some of the perceived differences from the Absolutist view. Before this degenerates into yet another flame war I have a very simple solution; let's figure out what common goals we have then work on strategies to achieve them.

For our part it's very simple. We want all laws that put you in jail for mere possession eliminated. That would include laws regulating the firearm itself as well as when & how you can carry & any registration of the gun or gun owner.

What do Incrementalists want? How much prior restraint based gun control are you willing to do away with? How free would you dare to be? What gun control would you insist on keeping?

That's the starting point. Once we have clearly defined common goals then we can work on a way to achieve them. Feel free (or at least minimally charged) to leave comments here or e-mail me or talk about it amongst yourselves or shout it from the rooftops.

& please don't assume I'm trying to be a "uniter not a divider". First of all I always liked division - it was much easier than fractions. Second I'll still argue with you that the Garand is a much better general issue weapon than the M16, & that the Glock is a half assed solution in search of a problem but with really good marketing bad choice in a handgun, & that the 1911 was not the best design for a pistol in the last 600 years. So there's still plenty to argue about. I'd just rather we argued over such things while working towards repealing some or all of the prior restraint based gun control laws that currently burden both our camps.

Posted by Publicola at April 30, 2006 03:59 AM | TrackBack