Where is the NRA on the Burress case?
Volokh, Eugene
VOLOKH at law.ucla.edu
Wed Dec 10 14:04:33 PST 2008
I don't quite get this. Of course it's OK to ban using guns to kill
or injure others, except in self-defense. And of course it's OK to
punish grossly negligent discharges of firearms.
Naturally, my reference to "those who kill" in context referred to
"those who kill except in self-defense"; if I wasn't clear on that, my
apologies, but I thought it would be quite clear. To make this still
clearer, I was referring to the following comparisons that Prof.
Sheridan was making:
"The NRA seems to prefer extolling the occasional home-maker who
legally guns down an intruder than dealing with the formerly solid
citizen who, through depression or a turn toward mental illness and
derangement, turns his weapon on himself and/or his wife, or others.
One moment you're an upstanding individual entitled to possess all of
the weapons you want, even in an urban environment, or a well-settled
suburban milieu, entitled to NRA praise, and the next you've gone
berserk and taken out a public figure and the NRA doesn't want to
acknowledge you as one of theirs."
Prof. Sheridan seemed to be faulting the NRA for its position, but
it struck me as eminently sensible: Extol the law-abiding citizen (who
does use the gun and does kill, but in self-defense) over one who kills
his wife or others. Support the right of upstanding individuals
entitled to possess weapons, in cities or elsewhere; condemn those who
go berserk and kill public figures. (I set aside the question of the
adult who kills himself; that, I take it, is something that is neither
to be extolled nor necessarily harshly condemned, but I assumed this
wasn't a major part of Prof. Sheridan's argument.)
I would have thought that all this was uncontroversial and
unremarkable -- but Prof. Sheridan's and Prof. Zimmer's posts make me
doubt this. Am I entirely misunderstanding their arguments?
Eugene
________________________________
From: Michael Zimmer [mailto:zimmermi at shu.edu]
Sent: Wednesday, December 10, 2008 1:27 PM
To: Volokh, Eugene
Cc: conlawprof at lists.ucla.edu; conlawprof-bounces at lists.ucla.edu
Subject: RE: Where is the NRA on the Burress case?
So, it is ok to ban using guns, just not their possession?
Michael J. Zimmer
Professor of Law Emeritus
Seton Hall Law School
Professor of Law
Loyola University Chicago
25 East Pearson Street
Chicago, IL 60611
312.915.7919
"Volokh, Eugene" <VOLOKH at law.ucla.edu>
Sent by: conlawprof-bounces at lists.ucla.edu
12/10/2008 03:16 PM
To
<conlawprof at lists.ucla.edu>
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Subject
RE: Where is the NRA on the Burress case?
I'm not sure if I'm understanding this right -- perhaps
there's some humor I'm missing here -- but why is there anything odd to
extolling the law-abiding citizens over those who kill?
Eugene
________________________________
From: Robert Sheridan [mailto:rs at robertsheridan.com]
Sent: Wednesday, December 10, 2008 12:47 PM
To: Volokh, Eugene
Cc: conlawprof at lists.ucla.edu
Subject: Re: Where is the NRA on the Burress case?
If you've ever called the NRA, as I have, years ago, to see
whether they had any useful resources in the defense of a person who
shot a quarrelsome neighbor, allegedly in self-defense, then you will
not be surprised to be informed that the organization is not very
helpful at all. There's something about people who get charged with
misusing a firearm which seems to make the NRA want to back off. They
seem to be on the side of duly constituted authority, police and
prosecutors, not an individual seeking to defend himself in court
against them. Their major interest seems to be to support the romantic
vision of the pioneer family with flintlock over the mantle to protect
the settlers from the dreaded Indians all around. Bringing this
interest down to the 21st century presents a sort of contextual
dissonance, now that the Native Americans are our friends and we're our
own worst enemy. The NRA seems to prefer extolling the occasional
home-maker who legally guns down an intruder than dealing with the
formerly solid citizen who, through depression or a turn toward mental
illness and derangement, turns his weapon on himself and/or his wife,
or others. One moment you're an upstanding individual entitled to
possess all of the weapons you want, even in an urban environment, or a
well-settled suburban milieu, entitled to NRA praise, and the next
you've gone berserk and taken out a public figure and the NRA doesn't
want to acknowledge you as one of theirs. It will brace for the
inevitable backlash, a la the Brady bill. You remember Brady, the
press secretary for Pres. Ronald Reagan, during that assassination
attempt, where Brady suffered brain damage from the would-be assassins
bullet.
If the Indians stage a comeback, the NRA has enabled us to be
prepared, as the good scouts we are.
Perhaps the NRA has changed.
Surprise me.
rs
sfls
On Dec 10, 2008, at 11:53 AM, Volokh, Eugene wrote:
The ACLU is surely entitled to its tactics -- though, to be
precise, they are often the tactics of each individual chapter. It
doesn't follow, though, that other groups need to adopt the same
tactics, or that they are racists for not doing so (though I stress
that's Prof. Zimmer's suggestion, not Frank's).
But even there, I expect, the ACLU might have a different
view when it comes to cases that involve a pretty clear public safety
concern, in which it's trying to rebut charges that its positions are
contrary to public safety.
An example: Say that a typical ACLU chapter is considering
whether to make a public statement defending victim of a possibly
unconstitutional search for drugs. It wants to move the law and public
opinion in favor of recognizing this kind of search as
unconstitutional. But, it turns out, the search actually uncovers
evidence that the victim is a pretty dangerous guy, perhaps dangerous in
the very way that the hardcore drug warriors warn about. (For
instance, say that the search uncovers not just drugs, but drugs stored
in a way that was easily available to children.) Would or should the
ACLU chapter feel duty-bound to make that public statement? Or is it
entitled, and perhaps wise, to sit that one out, and focus on cases
where its position doesn't feed the other side's narratives about how
the searches are needed to stop dangerous criminals?
Eugene
________________________________
From: Frank Cross [mailto:crossf at mail.utexas.edu
<mailto:crossf at mail.utexas.edu> ]
Sent: Wednesday, December 10, 2008 11:45 AM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
<mailto:conlawprof at lists.ucla.edu>
Subject: RE: Where is the NRA on the Burress case?
the ACLU has made quite a name for itself by defending the most
unappealing figures. The ACLU doesn't focus on the speech of the
"overwhelming majority." Indeed, this would seem the best way to
strengthen a right -- if it exists for the most unappealing, that proves
the power of the right. And I presume the NRA has ample resources.
Perhaps there is a sense of the fragility of the Heller right and the
fear that the time might not be yet right to push it.
Though I suspect that the gun rights groups generally don't
relate to the issue. It's not fair to ascribe racism, you could add
Don Kates to your list on the racist effects of past gun control. And
David Kopel to the defenders of Burress. But I suspect these groups
relate better to Karl Malone than Plaxico Burress. And there is a real
tension here, as reflected in the incompatibility of the originalist
constitutional theory of the 2nd Amendment and positions like denying
guns to felons. So I think the 2nd Amendment defenders feel theneed to
be cautious.
At 01:26 PM 12/10/2008, Volokh, Eugene wrote:
Content-Class: urn:content-classes:message
<urn:content-classes:message>
Content-Type: multipart/alternative;
boundary="----_=_NextPart_001_01C95AFD.451A2500"
Oddly enough, many gun rights advocates likewise do a great
job tracing many gun control proposals to racist origins, and point out
how racial and other minorities have used guns to defend themselves
against bigoted abuse (especially when the police were unwilling to
defend them). George Washington Professor Bob Cottrol,
http://www.nrafoundation.org/lawseminar/biographies/cottrol.asp
<http://www.nrafoundation.org/lawseminar/biographies/cottrol.asp> , a
trustee of the NRA's Civil Rights Defense Fund, has done quite a job of
this, see http://www.guncite.com/journals/cd-recon.html
<http://www.guncite.com/journals/cd-recon.html> . So rather than
speculating about the NRA's and libertarian gun rights advocates'
hypothetical racism, might it be better to consider first some
alternatives?
In particular, let's say you're someone like Bob -- or Ray
Diamond or Nick Johnson or lots of other pretty clearly nonracist
supporters of gun rights. If you're going to choose whom to spend your
scarce time and political capital defending (or whom to urge your group
to spend its scarce time and political capital defending), would you
choose someone who is apparently an incompetent and therefore likely
pretty dangerous person? Or would you prefer to focus on the
overwhelming majority of gun owners and would-be gun owners who never
accidentally shoot themselves (or others)? Hard for me to see how
Burress is a "pretty good candidate for [gun rights advocates'] cause,"
since he is precisely the rare sort of gun owner whose actions support
the anti-gun-rights advocates' cause.
It seems to me the NRA and the libertarian gun rights
advocates are in the same position as are advocates in lots of other
causes that have a public safety dimension -- fights for drug
legalization, for medical marijuana rights, for protection for
recovered alcoholics, and so on. If you were such an advocate,
wouldn't you try to stay away from backing people whose actions tend to
support the other side's position, and focus on those people whose
actions tend to support yours? If the police busted someone for
medical marijuana possession, for instance, would you be less likely to
support him if there was evidence that he had let his stash fall in the
hands of local teenagers? To be sure, John Lott, a leading
pro-gun-rights scholar has expressed some sympathy for Burress, and for
football players more broadly,
http://foxforum.blogs.foxnews.com/2008/12/02/jlott_guncontrol/
<http://foxforum.blogs.foxnews.com/2008/12/02/jlott_guncontrol/> . But
it seems to me perfectly sensible that many other gun advocates prefer
to focus on more appealing figures.
Eugene
________________________________
From: conlawprof-bounces at lists.ucla.edu
<mailto:conlawprof-bounces at lists.ucla.edu> [
mailto:conlawprof-bounces at lists.ucla.edu
<mailto:conlawprof-bounces at lists.ucla.edu> ] On Behalf Of Michael
Zimmer
Sent: Wednesday, December 10, 2008 8:48 AM
Cc: conlawprof-bounces; conlawprof at lists.ucla.edu
<mailto:conlawprof at lists.ucla.edu>
Subject: Where is the NRA on the Burress case?
It may just be my lack of attention but I have yet to see
anything from the NRA or the libertarian gun rights advocates coming to
the aid of Plaxico Burress to defend his possession of a revolver, even
if he was inept enough to shoot himself. If I am right, why is that
so? Reva Siegel does a great job tracing the guns right movement to
the 60's and the Republican efforts to develop wedge politics around
guns, but also in response to the civil rights movement and the chaos
of the period. Is the failure to come forth for Burress because he is
black? Otherwise he seems a pretty good candidate for their cause
since professional athletes have been targets of armed robberies.
Michael J. Zimmer
Professor of Law Emeritus
Seton Hall Law School
Professor of Law
Loyola University Chicago
25 East Pearson Street
Chicago, IL 60611
312.915.7919
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Frank B. Cross
Herbert D. Kelleher Centennial Professor of Business Law
McCombs School of Business
University of Texas
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