Nazi-U Boats and single case refulation of the arms right.

[Scarberry, Mark]

Even the possession of less than military equivalent arms by the populace
may deter tyranny. Massive military force is not always useful when one
wishes to rule a city (for example) rather than destroy it. (Note that
police typically do not carry hand grenades.) And pistols and non-automatic
rifles in the hands of the citizenry can make a tyrant's job in maintaining
rule very difficult. One need not necessarily be able to defeat a tyrant in
a pitched battle in order to deter tyranny; it may be enough if potential
tyrants are brought to an understanding that the fruit of any seizure of
power will not be sweet. That is why the deterrence rationale can coexist
with reasonable limits on arms possession by the citizens.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu




-----Original Message-----
From: calvin johnson [mailto:chjohnson at MAIL.LAW.UTEXAS.EDU]
Sent: Wednesday, January 10, 2001 11:42 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Nazi-U Boats and single case refulation of the arms right.


        Eugene adopts as his own the hypothetical that First Amendment
protections against prior injunctions do not apply to publishing troop ship
departure schedules when Nazi UBoats prey immediately outside the harbor.
He adopts with enthusiasm because it means that the 2d Amendment like the
1st will have reasonable limitations, so taht the possibility of an
unreasonable use of guns can no longer  be used to reduce the entire
nuke-rights argument to absurdity.
        I take this as  a significant concesssion.  The "deterence"
rationale has no limitation built into it.  For deterence to work the White
House and Congress and Court must be truly afraid of massive retaliation and
that means the possessor of the arms right must have force equal to or
superior to that which the Federal Government can command.  Eugene argues
that, no, the second amendment will be subject to reasonable limitation,
like the first is.      A deterence rationale can not be so limited.  But it
wonderful to see a 2d amendment advocate argue that there are reasonable
limits, along the line of "clear and present danger" limitation on speech
rights.
        But Iwould suggest that thsi new  rationale destroys the right.
Speech is not allowed when it is as  inherently dangerous as a loaded gun.
So if the rationale is brought over from the 1st to the 2d, this rule of
reason will not allow a gun right taht might acutally result in someone
getting killed.  I applaud the new rationale, but I am not sure what is left
of guns once the new rationale is in place.
        And of course that is what the founders intended.  The BR is a sop
thrown to the oppostion, after they had already ratified, perceived by the
AntiFederalists as  Milk and Water propositions.  Madison would never have
allowed a dangerous amendment and indeed he filtered well.
        But then too Madions was thinking of a well trained and regulated
militia, which is by nature harmless enough.  He was thinking of bearing
guns from which Quakers and others with religious scruple could be exempted.
Like W's Texas National Guard, created to protect Texas against invasion
from Mexico, or by Oklahoma, it was not expected to mean very much in
practice.



        t>To: CONLAWPROF at listserv.ucla.edu
>From: chjohnson at mail.law.utexas.edu (calvin johnson)
>Subject: Necessary implication of deterrence rationale
>
>This is not a slippery slope argument.  The law lives in the world of
>single case refutation.  If you have a theory, for instance, about no
>injunction of speech  prior to publication and the Justice asks  you,
>"Cousellor, what about publishing troop ship departures when there are Nazi
>UBoats just outside the harbor?" you had better not answer that your
>rationale is merely an interesting empirical generalization.  and that you
>did nto mean to go down a slippery slope.   You have to explain why your
>rationale says that Nazi UBoats are okay or you have to have a distinction
>core to your rationale.
>       The offered rationale for the 2d amendment is deterence against
governmetn
>action.  I dont see any  line of moderation in that rationale.  The
>govenment is supposed to be deterred.  For deterence to work, the
>government is supposed to be trully afraid of retribution.  Since we are
>celebrating the deterence, we should be glad to see the deterence be
>absolute.  Hence the retribution had better be pretty big.   The government
>should not even think about trying to come after the holder of the arm
>right.
>       Who judges the tyrrany?   The holder of the arm.  Hence the
deterence
>theory says that every holder of the arm must have enough power to prevent
>the govenrment from acting in way that might displease the holder of the
>arm.    "Tyrrany" has been defined as having a stamp tax that is too high
>(althoguh quite modest by current standards) or forcing motorcyclists to
>ride with a helmet.  So there does not seem to be any content restrictions
>on what is defined as tyrrany to be deterred.
>       For deterence to be that effective, the holder of the right must
clearly
>have the ability to nuke the COngress and White House and the Supreme Court
>(who will decide the issue).    Anything less would not deter.
>       For myself, I would prefer not have the govenment be detered in the
>operation of the ordinary magistry of the law.  Thus I reject the whole
>syllogism.  This is not a slippery slope argument, but it  is a pure clean
>case of  reduction to absurdity.
>
>At 03:23 PM 01/08/2001 -0800, you wrote:
>>>>>
>
>        I wouldn't be too worried about the slippery slope towards a 2nd Am
>right to own nuclear weapons; I suspect that the government (the courts
>included) will do a pretty good job of preventing that.  One needn't worry
>that the government will *over*enforce individuals' right to bear arms, to
>its own detriment; the slippery slope in the other direction, and the risk
>of underenforcement, is a much more live one.
>
>        In general, the argument that "Right X, if accepted as an absolute,
>would lead to bad results; therefore, we should treat right X as a nullity"
>strikes me as singularly unconvincing.  The argument is unconvincing as to
>free speech (after all, if free speech were accepted as an absolute, we
>might have some pretty serious problems, too) and it's unconvincing as to
>the right to keep and bear arms.  As Mark Graber's earlier post highlights,
>one can have a right that is subject to plenty of regulations but not
>subject to outright prohibition.  I suspect that the Framers generally
>saw rights that way, and certainly our legal system continues to do so
today.
>
>        Eugene
>