April 20, 2007

Don't It Make My Brown Back Hugh?

Hugh Hewitt interviewed Mike Huckabee & Sam Brownback recently. The 2nd amendment came up in both instances & more specifically there was a discussion of machine guns. I'll spend a while discussing what I feel are Hugh's implicit objections to machine guns (& tanks) but there'll be the gun related portions of both interviews transcribed here. Huckabee seems very promising based on his answers to Hugh.

Tuesday on Hugh Hewitt's show Hugh interviewed Sam Brownback. That whole gun thing came up & Hugh asked a few pointed questions.

Hugh mentioned that he asked Mike Huckabee if he'd be comfy knowing his neighbor had a machine gun & Huckabee said yes; he'd be okay with that. Hugh said this with some incredulity in his tone. He asked the same question of Brownback. Brownback dodged a bit as Hugh pressed him but finally said he wasn't going to commit to an answer. I'll note that Brownback consistently stated his support for people owning all types of guns & made much of the idea it was the person, not the tool that mattered, but also didn't seem to have a solid grasp on the particulars of 2nd amendment jurisprudence or the scope of national gun control laws.

Hugh was clearly trying to lead the witness interviewee. It simply seemed that Hugh was shocked that everyone does not share his opinion, which is presumably that machine guns cross a line the 2nd amendment did not draw.

first here's the interview with Huckabee. The relevant part:

"HH: ...Governor, I want to get to guns. There are big stories on guns, and Mitt Romney only having a rifle when he was a kid, and hadnít hunted much since then. Newt Gingrich was on this program last week talking about guns. What about assault weapons, or what is called assault weapons in the law? Should Americans be allowed to have them.

MH: Absolutely. Americans ought to be allowed to have anything they want to have, as long as theyíre law abiding, legal citizens. The 2nd Amendment was not there for hunting. I get so offended when Democrats talk about it as if you donít need an assault weapon to hunt. Well truthfully, most Democrats wouldnít know an assault weapon from a BB gun. Iím a hunter, I have been my whole life. But the 2nd Amendment is not just about hunting. Itís about protecting your family, your property, and itís honestly about defending ourselves against a tyrannical government, should it ever go haywire on us.

HH: What about machine guns, Governor?

MH: Iíve got friends who own them. They have the legal process to own them. But once again, Iím not afraid of a law abiding citizen owning anything. Iím afraid of a criminal getting his hands on a gun. Thatís where the crackdown needs to be. This countryís gone crazy. Itís cracking down on law abiding citizens, and turning their heads at people who break the law. Thatís the polar opposite.

HH: Governor, do you have an official website yet?

MH: I do, Hugh. Itís called www.explorehuckabee.com. I hope people will go and take a visit." (link in original)

Now the interview with Brownback. The relevant part:

"HH: Now Senator Brownback, a lot of media types are saying the pro-lifers ought to be also pro-gun control, especially after a catastrophe like Mondayís. Whatís your response to them?

SB: Well, my response to that is that there is a 2nd Amendment to the Constitution, and itís right there next to the 1st Amendment. The 1st Amendment protects speech, and the 2nd Amendment protects the right to bear arms, and, and you have to look at the individual. There have been guns in this country from the beginning, from before the beginning of the republic. Itís the individual pulling the trigger that weíve got to focus on, not the fact of guns in the country.

HH: Now Senator, we discovered today that he had a court order declaring him to be a menace at one point. ShouldÖdo we need new gun laws that would restrict the sale of handguns to people with such orders against them?

SB: Well, Iím going to leave that one to be looked at over a period of time, and in individual states, and weíll look at it, Iím sure, up here as well. There currently are some restrictions on waiting periods, and different restrictions like that, that the courts have upheld, and itís ones you can look at. I just donít think that our immediate focus on the gun is the issue here. The issue is the person that pulled the trigger.

HH: Of course, though, lots of people on the left, especially, are arguing we donít have enough resources to particularize the scrutiny of people. We need to build a barrier against very disturbed people getting guns, and they want some laws. What are you going to argue against that?

SB: Iíd argue that thereís a Constitution. I mean, I think there are things that we ought to, when I hear people talking about, for violence or hatred in this society, that there ought to be limitations. But thereís a 1st Amendment that protects a personís free speech. I just think we have to be realistic and instead of a knee jerk reaction, saying okay, letís limit guns, I think really what we ought to do is take a very in depth view of what is the situation, and what has happened here, and what can we do within the Constitution, to try to see that this doesnít happen in the future.

HH: Senator Brownback, Mike Huckabee was on the program, one of the guys youíre competing with in Iowa for the pro-life movement activists, along with Governor Romney and a couple of other conservatives like Duncan Hunter, and heís comfortable with his neighbor owning machine guns. He said so. Are you?

SB: I would have some questions about that, and I think the courts have seen fit to have limitations done on a state basis, or other basis, on some of those types of areas, or those types of weapons. But I votes 100% with the National Rifle Association, for as far as when issues have come up here. I think this is a Constitutional right that people have, and Iíve supported the right to bear arms. I grew up hunting and fishing on a farm, I make sure to add the basis on that. I think what weíve got to focus on is the individual pulling the trigger.

HH: And so, higher caliber weapons and machine guns, those are not in Sam Brownbackís understanding of what the 2nd Amendment protects?

SB: Well, no, donítÖIím not going to say that, because you get some of these, and they had thisÖwhen I first came into the Congress, they had the assault weapons ban that was coming up, and you first hear about it, and you say well of course, Iím opposed to assault weapons. But it turned out these were minor modifications to guns that a lot of people had. So it wasnít really about assault weapons. It was about those modifications, and I didnít think we should limit that. So Iím not going to go with your point blank definition here. I believe in the right to bear arms, I think the Court has held, and Iíve seen the Court has held that there are some limitations that they will allow.

HH: Okay, but machine guns, which Huckabee was talking about, and I think we all have the same idea of what those are, do you think those are covered by the 2nd Amendment?

SB: You have a right to bear arms. Iím not willing to say by that definition, because Iíve been down this road on a policy discussion before, so unless itís specifically put out, Iím not willing to say.

HH: Senator Brownback, always a pleasure. Thank you, Senator, look forward to having you back on, great day for American on the Court." (link in original)

Brownback seems to have potential. His theory isn't too far off but the particulars need to be addressed more in depth. Huckabee though - when word gets out that a presidential candidate has (non-.gov employed) friends that own machine guns it ought to score with us gun nuts.

Hewitt though - again it's mainly a misunderstanding of the mechanics, but I fear the theory that allows the misunderstanding to occur could be more troubling than I first thought. Look at the interview Hugh had with Newt Gingrich where the 2nd amendment was discussed (though on the plus side there's been 2nd amendment discussions since Newt where no one mentioned tanks).

I simply am not sure what Hugh's opposition is based on - that "machine guns" & other "high caliber" weapons are simply too powerful for civilian use or that the 2nd amendment is merely about personal protection against private thugs & therefore "military-style" weapons are not protected.

For the helluvit I did a post on what machine guns are as well as the constitutional arguments for possessing them. Please go read it.

There are varying schools of thought on where the constitutional line should be drawn as far as defining "arms" for 2nd amendment purposes go. I would argue that since the constitution makes mention of the authority to issue a letter of marque & reprisal that the private ownership of a man-of-war was viewed as permissible. Hell, the first millionaire in America owned several privateers & George Washington owned a share in a privateer. It is said that American privateers seized about 300 ships during the American Revolution. It may not seem like much today, but we must deal in the principle, not the actual level of technology.

As spoken before the U.S. Senate Committee on the Judiciary, Douglas Kmiec (Dean of the Columbus School of Law) said:

"Letters of Marque and Reprisal are grants of authority from Congress to private citizens, not the President. Their purpose is to expressly authorize seizure and forfeiture of goods by such citizens in the context of undeclared hostilities. Without such authorization, the citizen could be treated under international law as a pirate. Occasions where one's citizens undertake hostile activity can often entangle the larger sovereignty, and therefore, it was sensible for Congress to desire to have a regulatory check upon it. Authorizing Congress to moderate or oversee private action, however, says absolutely nothing about the President's responsibilities under the Constitution."

While I don't believe any have been issued by the u.S. since the mid 1850's it is still clearly enumerated in the text of the Constitution (Article 1 section 8) & therefore a relevant indicator of the legal status of private ownership of weapons. It may not seem like much, as the biggest privateers were about the size of a small frigate, but we're talking of ships that could be as large as the U.S.S. Constitution, which displaced over 2,000 tons & carried over 32 guns. That's a lot of firepower compared to a single machine gun. In fact the nearest equivalent would be (& here I invoke Hewitt's Law) an M24 Chafee (although land based & heavier I don't think - given my limited knowledge of the technical capabilities of both instruments - it's an unreasonable comparison).

So if we are to assume an Originalist or Textualist (& possibly a Strict Constructionist) view of the Constitution then it is not unreasonable to assume that "arms" as used in the 2nd amendment could very well encompass much more powerful devices than machine guns.

I do think Hugh has a legal revulsion to the idea of his neighbor owning a machine gun (or a tank) in addition to a pragmatic one. I think I've made an opening argument for the legal objections to a private citizen owning a machine gun (both here & in the above linked post I did on machine guns) but perhaps addressing the pragmatic objection would be most beneficial.

With a machine gun a single person could do harm to a great number of people

I'll assume that's the objection (as it seems most likely) that Hugh would have to the next door neighbor owning an FN MAG (M240). But why?

A person can do just as much, if not more damage with chemicals bought at a local store - either by constructing a bomb or by poisoning a large group of people. A car can kill & injure a great number of people in a short amount of time.

To give a few examples, a car driven by an elderly man in California killed 9 & injured 54 others in a single incident. In North Carolina a Muslim terrorist used a car to hit 9 people on a college campus. & let us not forget what cars can do in the hands of a Kennedy.

Now given the above examples, would you feel uncomfortable because of the devices those people possessed or because of their apparent history of causing harm (either through deliberate actions or gross negligence)?

Would you feel safer with an unknown neighbor of presumable competence owning a machine gun, or one of the above driving next to you as you bike down the road?

It is & always will be the person, not the tool that causes harm. A machine gun, despite its scary implications as absorbed through the MSM & Hollywood, is merely a tool. It may be used for good or evil but is no worse than many other devices we take as common place.

To go one further, a machine gun in my hands is much less a threat to your safety than a bolt action rifle is in the hands of a Charles Whitman or a pair of shoes are in the hands of a Richard Colvin Reid. It is not because I am not capable of causing damage, but because I do not have the will to cause unjustifiable damage.

As I stated in my post on machine guns, they are not that easy to operate effectively. The first shot may be on target but the rest are not likely to be in the hands of someone who is unfamiliar with their operation. I've joked before that in the neighborhood I grew up in the gang bangers were such bad shots that I didn't have to worry as long as they were mad at me. It was when they were mad at the fellow next to me that I got worried. A bit of an exaggeration to be sure, but not as much as you might think. With machine guns in the hands of most thugs (that I've had experience with) it becomes even more a truism.

As far as incompetent or negligent handling of machine guns go they are again no more dangerous than most other types of arms & a good many common tools. A negligent shooting could occur with a single shot rifle just as it could with a machine gun. While I'll grant that there'd be 1 negligent shot discharged with the former, it'd take almost willful negligence to discharge more than a few with the latter.

Just off the top of my head let's assume there are 1 million law enforcement officers in the u.S. Let's also assume that there are around 300,000 NFA compliant machine guns in the u.S. (it's hard to get a figure as the ATF have administered the NFA registry with their usual level of competence - meaning it's presumed to be only around 60% accurate). Let's further assume that there are around 900 deaths resulting from the negligent discharge of a firearm each year in the u.S. I am confident that if the numbers were found (I did some rough searching but couldn't find anything that broke things down like I would need) that law enforcement officers would account for more than ten times the number of negligent homicides than NFA compliant machine gun owners would. I'd further argue that there are at least 10 if not 20 times the number of fatal dog attacks in the u.S. per year than negligent homicides attributed to NFA compliant machine gun owners.

If someone digs into the numbers I'm certain that you'd have more practical cause for alarm if your neighbor were a cop or owned a dog than you would if he owned a machine gun.

I see no reason to have concerns over your neighbor owning a machine gun or any other type of firearm from a legal or practical perspective as long as you'd be okay with your neighbor being a cop, owning a dog, possessing a car & having shoes.

Unless of course machine guns are simply an arbitrary line (that you think is justifiable) to set firm a limit to objects protected under the 2nd amendment so no one will go out & buy a tank.

I gave up TV about the time they canceled Night Court but a friend tells me that on the series Jericho they acquired an M1 Abrams & this was justified by one of the characters simply saying, "never know when you might need a tank". With that in mind here are some websites that do sell tanks legally to u.S. citizens (any armaments are unfortunately de-milled).



& an article on the largest private collection of military surplus vehicles in the u.S. (located right outside of San Jose of all places).

To sum up there's no legal or pragmatic reason to be more fearful of a machine gun owner (or a tank owner) than there would be to worry about a neighbor possessing a bolt action rifle or a car. But the MSM combined with Hollywood have through the years created a popular misconception about machine guns which has served to unjustly vilify them. They're simply firearms & in responsible hands are as safe as breathable air while in irresponsible hands are no more dangerous than any other potentially deadly item when misused.

As far as the candidates go Brownback has potential (although he's a bit shaky on the theory it seems) but Huckabee? I can already see the multitudes of "I Like Mike" bumper stickers seen in the parking lots of gun shows. He seems as pro-gun as Ron Paul but possibly without the electibility issues. I'll have to look into him a bit more closely.

"...Americans ought to be allowed to have anything they want to have, as long as theyíre law abiding, legal citizens...The 2nd Amendment was not there for hunting...itís honestly about defending ourselves against a tyrannical government, should it ever go haywire on us."

From that he seems solid on the constitutional theory.

"...most Democrats wouldnít know an assault weapon from a BB gun...Iíve got friends who own[machine guns]"

He seems a damn sight more solid on the mechanics than anyone else I've seen lately. Rudy & Mitt know folks who own machine guns, but they don't call them friends - they call them bodyguards.

Ya know, I might pick up an "I Like Mike" bumper sticker my damn self. :)

Posted by Publicola at April 20, 2007 08:58 AM | TrackBack

I'm not voting for Brownback strictly because of his stance on immigration. Interesting to see him futz around machine guns as well. I took his answers to mean he wasn't prepared to answer them directly, so he put Hugh off.

Posted by: Jeffro at April 21, 2007 09:13 PM