Going Postal
Sanford Levinson
SLevinson at law.utexas.edu
Fri Apr 10 13:59:28 PDT 2009
For the record, it wasn't Marx, but Weber who offered as the (altogether
dubious) analytic definition of the state as the organization that
necessarily exercised a monopoly over the legitimate use of violence.
(It is, for a variety of reasons, unimaginable that Marx would have
granted such legitimacy to any existing state at the time he was
writing.)
Even the "moderate" reading of the Second Amendment violates Weber's
dictum, inasmuch as state militias, clearly protected by the Amendment,
were given the ability to use violence without getting a federal OK and,
more to the point, could serve as potential resources for governors
(like those in Pennsylvania and Virginia in 1801) to threaten to use
against usurping nationals (such as those Federalists tempted to throw
the election to Burr).
sandy
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Kermit Roosevelt
Sent: Friday, April 10, 2009 3:47 PM
To: Calvin Johnson
Cc: conlawprof at lists.ucla.edu
Subject: Re: Going Postal
With respect to Ray's point, I fond statistical arguments more
persuasive if I can come up with a real-world story of how the
connection works, or doesn't. So with respect to, say, Virginia tech
and columbine, is the claim that the death toll would have been the
same without guns? Or that no imaginable legal regime could have
prevented the killers from getting guns? Or that the absence of guns
would produce enough additional homicides to balance the prevention of
some mass shootings? Or am I missing a different explanation?
Kermit Roosevelt
Professor of Law
University of Pennsylvania Law School
3400 Chestnut St.
Philadelphia PA 19104
215.746.8775
On Apr 10, 2009, at 4:02 PM, "Calvin Johnson"
<CJohnson at law.utexas.edu> wrote:
> Issues are the same for Arm's Control and Gun Control. Does not
> North Korea, Iran and NW provinces of Pakistan also have right to
> nuclear weapons, for defense only of course, against Isreal and
> US? If we are serious that individuals must have arms to deter
> Federalis, should we not provide the nuclear arms as well? It is
> after all the right to bear arms that we are talking about. On
> the merits I think I am comfortable with what Marx called the
> monopoly of the State over violence. At least as to nuclear
> violence. The differences between AK47s and nuclear arms are just
> issues of degree.
>
> Let me also remind what we are talking about: Columbine, Texas
> Tech, Birmingham, Pittsburg, Going Postal.
>
> Right to Bear Arms in original intent was right to be drafted,
> with Quakers exempted. You do have a right to serve on Jury. But
> we think of it as a duty in our current language. Right to Bear
> Arms did not include the need to have individual AK47s and Nuclear
> arms, even in theory.
>
> Calvin H. Johnson
> Andrews & Kurth Centennial Professor of Law
> The University of Texas School of Law
> 727 E. Dean Keeton (26th) St.
> Austin, TX 78705
> (512) 232-1306 (voice)
> FAX: (512) 232-2399
> Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
> For reviews, chapters, discounts and news on Johnson, Righteous
> Anger at the Wicked States: The Meaning of the Founders Constitution
> (Cambridge University Press 2005) see
http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu
> ] On Behalf Of Raymond Kessler
> Sent: Friday, April 10, 2009 2:42 PM
> To: 'Bob Sheridan'; 'Volokh, Eugene'
> Cc: conlawprof at lists.ucla.edu
> Subject: RE: Constitutional protection for devices and activities
> thatcan kill people
>
> Much of the legal debate on guns and crime is meaningless if there
> is no causal connection between guns and people killing other
> people. There is no credible, consistent research evidence of a
> causal connection between guns & homicide or that gun control is
> effective in reducing homicide.
>
> Ray Kessler
> Prof. of Criminal Justice
> Sul Ross State Univ.
>
>
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu
> ] On Behalf Of Bob Sheridan
> Sent: Friday, April 10, 2009 12:05 AM
> To: Volokh, Eugene
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: Constitutional protection for devices and activities
> that can kill people
>
> I find reprehensible this argument that because some legal activities
> result in accidental or otherwise regrettable deaths that therefore
> guns
> should be allowed more or less indiscriminately throughout current
> U.S.
> society. Now I suppose I have to justify that "reprehensible."
>
> The essence of society is control. Society exists to control human
> impulses, especially those which cause more damage when levered by
> various tools, appliances and devices. Sword canes are illegal in
> many
> places, as are nunchuks, throwing stars, and other martial arts
> weapons,
> as in California, for example. I presume this is because the social
> harm of such devices has been judged by the people i.e. the
> legislature
> to outweigh the social good. It appears that society can legitimately
> make this judgment. Absent the Second Amendment and the recent Heller
> decision concerning firearm possession, why cannot society say that
> firearm possession should be limited and otherwise strictly, and I
> mean
> very strictly, controlled? Even with the Second Amendment and Heller,
> why should society give up trying to change the law to encourage a
> reduction in deaths by deadly devices such as firearms, much like the
> way in which tobacco use has led to the recognition that tobacco
> kills,
> imposes a high cost on society in the form of costly health care and
> now
> the Food and Drug Administration is apparently going to be permitted
> to
> regulate the industry, subject to the passage of some required
> legislation, I believe. Motorcyclists are required (in California, at
> least) to wear helmets for similar reasons.
>
> Granted that this represents a diminution of personal liberty to harm
> oneself while enjoying one's usually harmless pastime, except when
> it isn't.
>
> We limit vehicle speed to protect lives, while allowing individual,
> dangerous hurtling 2,000 pound agglomerations of steel and plastic to
> speed down the highways.
>
> Yet with guns, a visceral, passionate reaction arises when society
> tries
> to protect itself from harm that is all too clear to see. Yet we're
> told that guns don't harm people, people do. Yes, and so do bullets.
> We have all sorts of legal controls on people, yet not enough on gun
> manufacture, transfer, possession, and usage, to dent the number of
> impermissible gun deaths.
>
> Absent the artificial, meaning man-made, Second Amendment and the
> Heller
> individual-right to possess rationale, I doubt that we would ever
> re-enact such a law or laws today (nor many other of the protections
> we
> so enjoy, either, for that matter).
>
> What's reprehensible, I submit, is that gun possession advocates wave
> the flag of individual rights while giving short shrift, if any, to
> addressing the problem of reducing the violence stemming from improper
> use of firearms by people who have somehow become incompetent to live
> peacefully in society. This form of arguing strikes me as similar,
> meaning as worthless, as the argument of the old South that however
> distasteful slavery might be, the federal government should not lay a
> hand against it because this was a matter of states rights, and the
> same
> even more-so when it came to enacting anti-lynching laws by Congress.
>
> I'd find it a lot easier to tolerate the form of special pleading
> which
> purportedly only seeks to put gun-possession-freedom in some sort of
> benign context if the special pleader would only also address proposed
> solutions to the problem of gun mis-use.
>
> rs
> slfs
>
>
>
> Volokh, Eugene wrote:
>>
>> It's not clear to me how that matters for purposes of constitutio
>> nal
>> analysis (or for that matter policy analysis). It's true that some
>> small fraction of gun owners buy guns with the intent that they will
>> use them for crime, and a tiny fraction buys guns with the intent to
>> murder someone. (There are about 500,000 gun crimes per year in the
>> country, with multiple crimes likely being committed with one gun,
>> and
>> about 12,000 gun homicides; there are probably about 50-100 million
>> gun owners, depending on how you count them, and a total of likely
>> about 250 million guns in the country, which is why I say small
>> fraction.)
>>
>>
>>
>> It's also true that some fraction of alcohol buyers - probably a
>> larger fraction -- buy alcohol with the knowledge that they will
>> likely use it in criminal ways, for instance by using a deadly device
>> (that would be an automobile) while intoxicated. And as I said the
>> number of alcohol-caused deaths of people other than the drinker is
>> roughly equal to the number of gun-caused deaths of people other than
>> the shooter. (The number of alcohol-caused deaths including deaths
>> of
>> the drinkers is materially higher than the number of gun-caused
>> deaths
>> including the shooters.) And it's also true that some fraction of
>> people who have sex do so reckless or negligent of the possibility
>> that the sexual encounter may cause death, or a serious harm short of
>> death (such as infertility or serious long-term disease). The number
>> of sex-caused deaths is somewhat but not much higher than the number
>> of gun-caused deaths of people other than the shooters, and somewhat
>> but not much lower than the number of gun-caused deaths of people
>> including the shooters.
>>
>>
>>
>> And if the claim is that the constitutional or policy analysis of
>> whether a product or activity should be constitutionally unprotected,
>> or forbidden, is dictated by whether those who few people misuse the
>> product or activity do it with the purpose of causing harm or merely
>> with the knowledge that they will cause harm or merely negligent of
>> the risk that they will cause harm, I don't see why that should b
>> e a
>> sound claim. The mens rea of the particular misusers might be
>> relevant to the degree to which we punish the particular misusers -
>> but I don't see how it tells us whether we ban the product or acti
>> vity
>> to everyone, including the overwhelming majority of people who do
>> n't
>> misuse it.
>>
>>
>>
>> Finally, I don't see anything particularly reprehensible about
>> firearms manufacturers pointing out that firearms can be used to kill
>> people. Killing people in self-defense against serious harm is
>> perfectly legal, and in fact possibly constitutionally protected
>> (and
>> explicitly constitutionally protected under 21 of the 50 state
>> constitutions). Stressing that this is something you can do with
>> guns
>> is likely superfluous, but in my view quite proper, and certainly no
>> reason to justify lower constitutional protection for gun possession
>> (though of course the typical defensive gun user does not actually
>> kill anyone with the gun, but rather scares off the attacker by
>> taking
>> advantage of the gun's ability to kill).
>>
>>
>>
>> Eugene//
>>
>>
>>
>> *From:* Paul Finkelman [mailto:paul.finkelman at yahoo.com]
>> *Sent:* Thursday, April 09, 2009 10:51 PM
>> *To:* conlawprof at lists.ucla.edu; Volokh, Eugene
>> *Subject:* Re: Lunatics' rights
>>
>>
>>
>> Eugene, it is worth remembering that no company sell liquor by saying
>> "you can use it to kill people." Fireams manufacturers do just that.
>> Your comparison between the two reads like a kind of simplistic NRA
>> argument and we all know you are much smarter than that. No one buys
>> a bottle of scotch with the intent to go kill someone with it.
>>
>> ----
>> Paul Finkelman
>> President William McKinley Distinguished Professor of Law
>> Albany Law School
>> 80 New Scotland Avenue
>> Albany, NY 12208
>>
>> 518-445-3386 (p)
>> 518-445-3363 (f)
>>
>> pfink at albanylaw.edu
>>
>> www.paulfinkelman.com
>>
>> --- On *Thu, 4/9/09, Volokh, Eugene /<VOLOKH at law.ucla..edu>/* wrote:
>>
>>
>> From: Volokh, Eugene <VOLOKH at law.ucla.edu>
>> Subject: Lunatics' rights
>> To: conlawprof at lists.ucla.edu
>> Date: Thursday, April 9, 2009, 11:42 PM
>>
>> I don't recall any gun advocates embracing people's ri
>> ght
>> to kill (except in lawful self-defense). Nor do they generally
>> embrace lunatics' right to carry, since they generally do approve
>> of
>> restrictions on gun possession by people who are mentally ill.
>>
>>
>>
>> On the other hand, gun advocates do generally embrace people's ri
>> ght
>> to carry guns, even though some criminals misuse those guns -- just
>> as
>> many people generally embrace people's (nonconstitutional) right to
>> possess alcohol, even though alcohol causes 10-15,000 deaths of
>> innocent bystanders per year, and many other people generally embrace
>> people's constitutional right to engage in consensual sex, even th
>> ough
>> such sex causes a roughly comparable number of deaths per year as
>> well. I'm not positive that this has that much to do with
>> constitutional law directly. But to the extent that the argument is
>> that the harm caused by people with guns should cause us to reject a
>> constitutional right to have guns, I wanted to put that argument in
>> some perspective.
>>
>>
>>
>> Eugene
>>
>>
>>
>> *From:* conlawprof-bounces at lists.ucla.edu
>> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Calvin
>> Johnson
>> *Sent:* Thursday, April 09, 2009 5:24 PM
>> *To:* conlawprof at lists.ucla.edu
>> *Subject:* Militia means state army
>>
>>
>>
>> Nice Oped by Timothy Egaan, /Guns of Spring/, at
>> _http://egan.blogs.nytimes.com/2009/04/08/the-guns-of-spring/_
>> including
>>
>>
>>
>> [Virginia Tech, Columbine, Birmingham, Pittsburg]
>>
>>
>>
>> " In the aftermath of one of these atrocities, nothing is more
>> chilling than a gun advocate racing before a camera to embrace a
>> lunatic's right to carry and kill."
>>
>>
>>
>>
>>
>> Calvin H. Johnson
>> Andrews & Kurth Centennial Professor of Law
>> The University of Texas School of Law
>> 727 E. Dean Keeton (26th) St.
>> Austin, TX 78705
>> (512) 232-1306 (voice)
>> FAX: (512) 232-2399
>> Website: _http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf_
>> For reviews, chapters, discounts and news on Johnson, /Righteous
>> Anger
>> at the Wicked States: The Meaning of the Founders Constitution/
>> (Cambridge University Press 2005)
>> see _http://www.utexas..edu/law/faculty/calvinjohnson/
>> RighteousAnger/_
>> <http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/>
>>
>>
>> -----Inline Attachment Follows-----
>>
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