What Kind of People We Are
VOLOKH at law.ucla.edu
Tue Apr 17 22:24:07 PDT 2007
1) Unless I'm mistaken, the killer committed his murders over
at the very least many minutes. Rate of fire is irrelevant for that
purpose. He also had plenty of time to reload.
2) Rifles are plenty deadly at close range; but if for whatever
reason one wants a shorter-barrel gun and only a rifle is available, a
rifle + a hacksaw = a short-barrel rifle. Inside every rifle is a
handgun waiting to get out. Shotguns are of course even deadlier at
close range than rifles or handguns.
3) I thus see no real support for claims that "Banning certain
types of weapons, certain types of ammunition, and controlling rate of
fire ... would limit the number of victims in cases like this and would
4) If someone has a gun control proposal that would lead
would-be mass murderers to only have knives or baseball bats, I'll be
happy to hear it. I'm pretty sure that it doesn't exist.
5) Let's not caricature Thomas's originalism. Thomas never
suggested that the Free Press Clause protects only late 1700s printing
presses, that the Fourth Amendment doesn't apply to condominiums, or
that the Commerce Clause covers only commerce using transportation modes
available in the late 1700s. Likewise, I see little reason to think
that he would see the Second Amendment as limited to late 1700s firearms
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Tuesday, April 17, 2007 7:57 PM
To: ConLaw Prof
Subject: Re: What Kind of People We Are
1. Defending a free state is done by the well regulated
militia, not individuals with high rate of fire pistols which hold large
numbers of bullets. The "therefore" seems targeted explicitly at making
the militia a part of the state's ability to defend its freedom and that
of its citizens.
2. Fewer people would have died had the killer only had a
knife. Or a baseball bat. Or a six-shooter. Or a shotgun. Other than
a gatling gun shotgun, shotguns do not fire nearly as quickly as modern
pistols and hold only six shells at a time (three if set for hunting in
most states). A rifle may be deadlier in some sense, but at close range
it is less easily aimed or maneuvered.
Banning certain types of weapons, certain types of ammunition,
and controlling rate of fire (real controls) would not stop mass
murders, but would limit the number of victims in cases like this and
would save lives.
Of course, the number of people killed on highways every day
vastly exceeds the numbers killed by other kinds of violence of all
types. But these pointed traumatic incidents, like plane crashes, carry
much more impact.
I don't think the second amendment does anything positive in the
modern USA. At all. My shotgun won't do much against military weapons.
Nor will all the shotguns in the country combined.
But I regretfully agree that the 2d amendment is there and means
something and that the abuse of weapons is not something that really
adds meaningfully to the debate of what it means.
It is the one provision on which I am would buy a Thomasan
originalist argument -- let everyone who wants to assert his or her
right to bear arms bear only arms of the type available when the
amendment was enacted. Before the revolver. Before the repeating
rifle. Before bullets in magazines and clips. Muskets. That's the
ticket. Preferably muzzle-loaded and pan flash fired.
Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:
> Two thoughts:
> (1) 44 of the state constitutions have
> provisions. Virginia's reads, in relevant part, "That
a well regulated
> militia, composed of the body of the people, trained
to arms, is the
> proper, natural, and safe defense of a free state,
therefore, the right
> of the people to keep and bear arms shall not be
infringed"; but note
> that the last clause, starting "therefore," was added
in 1971. It's
> hard for me to see how such a provision in a state
bill of rights,
> enacted in 1971, "has to do with government sponsored,
> protective militias."
> (2) It's hard to see what gun control measure
would prevent a
> mass murderer from engaging in mass murder. A handgun
ban? That would
> leave rifles and shotguns, which are more deadly than
handguns. A ban
> on noncitizens' owning guns? It seems only an
accident that this
> particular killer was a noncitizen. A ban on all
guns, coupled with
> confiscation of the 200+ million guns out there in
private hands. If
> there's to be an argument in favor of reading the
Second Amendment as
> protecting states' rights, or the rights of
state-selected armed groups,
> I just don't see how an argument based on this
particular crime would
> cut it.
Prof. Steven D. Jamar vox:
Howard University School of Law fax:
2900 Van Ness Street NW
mailto:stevenjamar at gmail.com
Washington, DC 20008
"I am in Birmingham because injustice is here. . . .
Injustice anywhere is a threat to justice everywhere."
Martin Luther King, Jr., (1963)
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