Second-Best Options and the Second Amendment

Second-Best Options and the Second Amendment June 28, 2008

If I had a magic wand that could magically get rid of all the handguns in the United States, and prevent people from getting any more of them, I would use it. But I don’t have such a wand, and if my plan for dealing with the social problems associated with handguns was to search high and low for such a wand, most people would, I think, conclude that I was wasting my time.

A national gun ban, in my view, was the gun control folks’ equivalent of a magic wand. I don’t know how effective a national ban would have been in limiting gun deaths and/or gun crime, but the question is largely irrelevant. Such a ban was never a realistic possibility. From 1939 until last Thursday, the Second Amendment was basically dead letter. It provided no meaningful restriction on the ability of government to restrict access to handguns, up to and including a total ban. Yet despite this, neither the federal government nor any state government has come anywhere close to passing such a ban, and if Heller had gone the other way, no such ban would have been forthcoming.

The best the advocates of gun control have been able to do is pass bans in a few major cities. These bans have had no discernible impact on gun related violence (anyone who tried to figure out when the D.C. gun ban was enacted simply by looking at the city’s violent crime statistics would be doomed to failure). As Matt Yglesias (no right-winger, he) has noted, the main effect of the D.C. ban was to validate the old saying that “if guns are outlawed, only outlaws will have guns.” While a country in which no one has guns would be preferable to the current situation in many respects, I don’t see how a situation where violent criminals have ready access to guns while the law abiding don’t is at all preferable to just letting everyone have them.

My advice to people who really want to reduce gun-related violence and crime (as opposed to people who just don’t like people who like guns) is this: stop looking for the magic wand. Treat Heller not as a cause for wailing and gnashing of teeth, but as an opportunity to refocus your efforts on actually achievable goals that will help reduce gun deaths and gun crime (and if you’re looking for ideas on how to do this, you could do worse than to start here).

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  • DC

    Daniel Patrick Moynihan actually found such a wand: a national ban on ammunition. It doesn’t run afoul of the individual right to own a gun just discovered by the SC, and the country’s supply of ammo will run out long before its supply of guns.

  • BA: “Magic Wands” (and constitutional questions) aside, it seems reasonably certain that a nationwide outlaw of private ownership of handguns would be one valid way to have a large impact on the murder rate, especially as time passed post-ban and handguns became more uncommon in the wake of a ban. Handguns make murder easier because they are easily concealable and deadly, but do not involve the risk and uncertainty for the wielder that using the other easily-concealable option, a knife, entails. There really is no substitute for a handgun for easy murder: cops tend to notice things like a guy walking down the street carrying a rifle or shotgun, and a knife can be run from in a way a bullet can’t.

  • RR

    “refocus your efforts on actually achievable goals that will help reduce gun deaths and gun crime”

    Sounds like pro-life Democrats on abortion. Good but not good enough.

    So only the outlaws will have guns. That’s still better than the situation today where family members are killed by legally-owned guns.

  • Blackadder


    I like Moynihan, but his “let’s ban ammunition” idea always struck me as being too clever by half. For one thing, any court that would strike down a handgun ban would also strike down a ban on ammunition (just as a court would strike down a ban on printer’s ink). But more fundamentally, the reason a national handgun ban could never pass congress was not that there were constitutional objections to it (congress passes unconstitutional bills all the time, and prior to Heller the courts had long signaled their non-interest in striking down gun regulations). The reason it could never pass was that it was a very politically unpopular idea. A ban on ammunition is politically unpopular, for the same reason (I would note that Moynihan’s idea went nowhere).

  • digbydolben

    I don’t want to own a gun, and I don’t want to learn to shoot one, and it looks increasingly like that’s one of the reasons I must leave America–and quickly.

    Why do I say that? I live in violent, crime-ridden Albuquerque, New Mexico, one of America’s murder-capitals. However, unlike some cities on the West or East coasts, there is a long tradition of gun-ownership out here. If what the proponents of unlimited gun ownership are saying were true, and, if a preponderent number of the population owned guns–as they do here–then Albuquerque should be one of the SAFEST places in the United States, which it isn’t. There are drive-by shootings all the time, as well as crimes of passion involving guns.

    The other night, the Washington correspondent of BBC, in concluding his interviews after the Heller decision was rendered, looked at a right-wing dame who was lauding the decision and asked, in sheer bafflement, “So does this mean that you advocate that I go out and buy a gun and learn how to use it, to protect myself, my wife and my children, in this, the capital city of your country?” When the dame answered yes, the BBC correspondent’s face told it all: we, of the rest of the world, do not understand you Americans’ gun culture and your romantic yearning for gun ownership by everybody. We believe that that’s what the police are for, and that the constabulary have a RIGHT to conduct their business without the constant threat of murderous retaliation by the public.

    And PLEASE don’t give me, in response to this, some historically hare-brained account of your “revolutionary tradition” and dislike of centralizing governments. Have you ever seen film clips of the barricades in Paris of 1968 and recently? We Europeans are quite adept at resisting illegitimate government interference WITHOUT any recourse to murderous artillery. However, unlike the bullying, nerve-wracked constabulary of Albuquerque, our police are friendly and helpful, for the most part. The last thing I’d want to do in Albuquerque would be to call a police officer to my home or place of business: they never come without back-up reinforcement that makes it look like one is soon to be the object of a military siege.

    If this is the kind of country you prefer to live in, and raise your children in, you may have it–but I’m going back to civilisation.

  • SB

    Digby — are you European? Why did you ever come here in the first place?

  • Digby,

    I think that you’re right that there’s a basic culture gap in regards to guns between most of Europe and the US. (It’s not universal, of course. The Swiss are universally armed, and Finland has sky high legal gun ownership rates (and a generally peaceful society — though like most very northern countries their suicide rate is high.)

    As for how helpful the police are in Europe — it probably depends on who you are and where you are. If you’re white, and live in a peaceful area, you’ll do fine. If you’re North African and live in the bad part of Paris, the only help the police are likely to give you is a beating, but they probably won’t show up anyway.

    I think different countries have developed different ideas of who is properly responsible for dealing with crimes and threats to home, life or limb. The BBC reporter sounds like he had the attitude which has become increasingly common in the UK post WW2 — though goodness knows Britain used to be bristling with guns at the turn of the century. Indeed, the emphasis on “leave the crime fighting to the police” is so high there, that they famously jailed a fellow who stabbed an intruder in his home with a kitchen knife. The intruder was one of two, and was armed, but it was ruled that he hadn’t given them sufficient warning that he intended to use the knife, and he should have just meekly handed over his possessions while waiting for the bobbies.

    For me (recalling growing up in LA where if someone wasn’t already dead the LAPD didn’t show up for 20min or more after being called) demanding that citizens make themselves completely helpless in that manner is far more horrifying than the alternative. For you, on the other hand, the reaction seems to be opposite.

    As for the problems in Albuquerque, if it’s anything like Silver City, NM where my cousins live, the gun crime problems probably have a lot to do with few good employment opportunities, a failing education system, and a cross-border gang culture which is generally fueled by plenty of drugs and alcohol — and illegal heavy weaponry from across the border.

  • On BA’s point — perhaps I’m a bit mad in that I guess even if I had the magic wand I wouldn’t use it. I enjoy having handguns around and using them for target shooting — though I certainly wish that they were never in the hands of criminals and one never had to worry about using them for defense.

  • digbydolben

    SB, I came here to live and work because my family is both British and American, but I’ve been out of my depth here most of the time.

    DarwinCatholic, you are very, very wrong about modern Britain: it STILL “bristles” with REGISTERED guns, which are used for hunting ANIMALS. My own brother, who is a big-time hunter had fallen for NRA propoganda for the longest time, until he went back to Britain to work, in the Nineties, and was allowed to import SEVEN SHOTGUNS into the country with absolutely no hassle, so long as they were registered.

    The last time I was staying with him in his home on the East Coast, the NRA telephoned one night during dinner. He took the phone from his wife and said, “Yes, I own guns, but I’m not giving to you because I object to the way you distort the truth about gun ownership in my homeland.” I impishly suggested to him that, instead of hanging up like that right away, he should PLAY with them for a while. “Tell ’em,” said I, “that you’d consider a hefty donation if they could help you get an anti-aircraft gun for your roof!”

  • A quick tangent: I read somewhere there is a tradition of deer-hunting with swords in Europe. I have a hard enough time bringing down a Mule Deer with a .308 – I can’t imagine how one brings down a buck with a sword.

  • Blackadder


    Accidental deaths from guns are pretty rare. There are many more accidental deaths involving swimming pools, for example, than there are involving guns. But I’ve yet to hear anyone say that we should ban swimming pools. This despite the fact that you can’t use a swimming pool to fend off a mugger or a rapist, whereas plenty of women (and men too) use guns for precisely this purpose.

  • jh

    “Daniel Patrick Moynihan actually found such a wand: a national ban on ammunition. It doesn’t run afoul of the individual right to own a gun just discovered by the SC, and the country’s supply of ammo will run out long before its supply of guns.”


    Sort fo like We not banning Sppech only Newspapers

  • jh

    People that do not like Guns should at this as an opportunity.

    First for some of the people that post here that were for anout GUN ban or elimination of handguns you represnet what those people fear. That is why even when a common sense regulation came along many opposed it because they saw it as eating away at the right with the long term objective of bannings guns.

    THey were right!! That was what was largely going on. Heck don’t we all do the same thing as to abortion as we appoint judges that if not overturn ROE seek to Hollow it out one small step at a time

    Now that the Right has beend officially declared by the Court as a Individuaal right and once and if @nd amnedment supports see that it willbe protected politcailly in the long run it will be easier for you to get Common sense gun regulations

    Scalia has already told you how to do it and frame your argument for those regulations. you want. As S.C. Rpeorter Dana Lithwick over at Slate said it really hit her that they will be hearing gun cases:

    As another person stated that actually argued for the other side said

    “””Similarly, in Scalia’s mind, the way to determine whether a gun regulation is permissible is to ask whether such a regulation was part of the historical background of the amendment and thus excluded from “the right” that was being adopted. Note that he precedes his discussion of certain permissible regulations by stating, “Although we do not undertake an exhaustive historical analysis today,” we should not be taken to cast doubt on the following restrictions.

    What is striking about his discussion of the presumably valid restrictions is both what is said and what is not said. In every instance, historical practice is noted. In not a single instance is the public necessity for a gun restriction noted. As to history, he notes that there will be time to expound upon “the historical justifications” for the presumed valid regulations “if and when those exceptions come before us.” Justifications based upon necessity, on the other hand, are not part of Justice Scalia’s calculus: “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” There is no need for establishing a “level of scrutiny” if the amendment, once defined, is absolute

    This approach is vintage Scalia. Find some historical practice, use it to define and limit the scope of the right, and then apply the remaining right absolutely. But whatever one can surmise Justice Scalia had in mind, it is not dispositive. What is in the holding of the opinion leaves open for future determination the critical questions of permissible regulation. The key footnote (added later, perhaps, by request of one of the justices in the majority?) expressly states that Scalia’s list of “presumptively lawful regulatory measures … does not purport to be exhaustive.”

    But if for no reason other than careful future advocacy, it is important to understand Justice Scalia’s own thinking, even if it did not become part of the holding of the opinion. “Reasonableness” arguments have no role in his conception of the amendment.
    That does not doom the case for defending sensible regulations. It does suggest that (1) any appeal to Justice Scalia needs to be crafted in keeping with his historical approach to the amendment and

    (2) for restraints whose justification is rooted more in current public necessity and less in historical practice, a majority may have to be assembled that does not necessarily include the author of the Heller opinion.”””


  • If you ban guns only the crooks have them! Been a good saying all this time and still is! If someone broke down your door in the middle of the night wouldn’t you want a gun in your hand? I would!

  • Digby,

    Actually, I know a couple of gun collectors in the UK from the surplus rifle boards where I hang out. So yes, I’m aware that some “sporting guns” are still allowed there if registered. However, nearly all handguns are banned there, and most semi-automatic rifles are as well. Given that my own particular gun hobbies involve collecting WW2 military rifles and handgun target shooting (I’ve actually never shot an animal of any kind with a gun – though I’d like to go hunting some day), nearly everything I own would be illegal in Britain.

    Yes, they do allow some guns. but they also ban a great number. That your brother hadn’t actually read up on the situation, I can’t really help. (As for the NRA, I’m not a member and haven’t read their magazine in 15+ years, so I can’t speak for them.)

  • T. Shaw

    Mr. BA,

    Possibly the first time I agree with a post here.

    Two things: One: Facts and history, since the first Sullivan Law in NYS, prove that US murder rates rise, not fall, when gun controls are placed. The discernible impact on gun violence in all gun control jurisdictions was that IT WENT THRU THE ROOF. In fact, 33 states have legal concealed carry laws, and every one has a lower hand gun murder rate than any of the gun ban locales.

    Two, the factors associated with gun murder rates are not only affected by availability of hand guns. Other items: dysfunctional family, secular humanism (no fear of God, no objective truth, swear there ain’t no heaven and pray there ain’t no hell); materialism, crack cocaine in the ’80″s, all drug traffickers, public schools, etc.

    You can’t legislate morality. You have to change these people’s hearts. Predators are made not born and the citizens should have the means to protect themselves. Here I plagiarize some of your rationales to vote for abortObama.

    Why is not Switzerland is the murder capital of the world when every abled- bodied man (aged 19 to 50?) possesses an assault rifle fully-loaded and ready for action?

    From 1791 to 1939, no one ever questioned the right of an American individual to own a firearm. Then, we experienced constitutional modernism and the murder rate went through the roof. Just the facts. Wonder why?

    Tragically, home accidents that I know personally involved law enforcement men with no military or sporting gun indoctrination who left loaded service revolvers in reach of toddlers, who rose with the dawn.

    If God had not wanted us to be armed, He would have not given us the Second Amendment, or Justice Kennedy. Just kidding!

  • Dan

    I don’t want to own a gun, and I don’t want to learn to shoot one, and it looks increasingly like that’s one of the reasons I must leave America–and quickly.

    Bye then. Oh, and don’t mind the dead bodies of the people that gave their lives so you could enjoy your freedoms. Just step right on them, I am sure you don’t mind.
    Have a nice life.

  • Nate

    There is a magic wand. It’s called the Gospel.

    The political and social culture of the United States will not give up guns. But as Catholics, we are called to build that culture. This doesn’t require a magic wand. It requires a commitment to the Gospel.

    While this takes time, our Church has nothing but time.

  • Nate

    Btw – I’m not trying to be snide. BA’s point is correct – gun legislation cannot pass in the current cultural environment. But that’s no excuse for us to give up. We have a duty to create a culture of peace. Saying that a culture of peace is impossible is not only incorrect, but is one of the obstacles to peace:

    “Basically, what compromises the stability of Peace . . . [is the] sceptical conviction that, in practice, Peace is impossible. A wonderful idea, people think . . . but a poetic dream and a utopian fallacy. An intoxicating drug . . . There returns once again to men’s minds, as though with inevitable logic, the thought that what matters is force . . . [that] organized society cannot do without force . . .

    Peace should [not] be regarded as a utopia . . . Peace is, and must always be, in a process of continuous and progressive realization . . . Peace is possible only if it is considered a duty.”
    – Paul VI (1974 Peace Message)

  • digbydolben

    Nate, tell that to Dan, “Goodtimepolitics” and “DarwinCatholic.” They’re the ones refusing to hear what you have to say–and refusing to listen to the Gospel.

    It’s funny about Catholics in the US: I’ve noticed that they think that if they go to mass regularly, practise an extremely severe and puritanical sexual morality (and condemn others who don’t) and genuflect in the direction of the Magisterium, they’re perfectly free to vote for warmongers and support economic policies that eviscerate the poor.

    In general, we European Catholics–with the exception of the right-wing episcopacy that’s been crammed down our throats by John Paul II Wojtylwa and Benedict Ratzinger–don’t think that way. We think that the Gospel MUST be made to apply to things like the Gospel, gun ownership and the treatment of our Muslim brothers and sisters.

    And don’t worry: I WON’T let the door hit me on the way out!

  • digbydolben

    I meant “to apply to things like economic policy,” rather than to “things like the Gospel,” above.

  • SB

    Given the contempt you feel for various Popes, perhaps you should be honest and admit that what you really like are the values of European secularists.

  • digbydolben – Yes, in the U.S., sadly, most Catholics are just like everyone else. Well, no. They’re like every other blowhard Republican NRA member. The president is pontiff, “the troops” are their priests, their guns are their sacramentals.

  • Given the contempt you feel for various Popes, perhaps you should be honest and admit that what you really like are the values of European secularists.

    Um, perhaps he has an affinity for other popes? Having a distaste for the style of the last two popes hardly makes one a secularist. If he’s like me, he prefers the style of a Paul VI to Benedict. Although I quite like Benedict for various reasons.

  • digbydolben

    Actually, America is the most ultramontane of Catholic societies left on earth: nowhere else in the Catholic world is absolute, lockstep allegiance to everything that comes out of some pope’s mouth considered to be a prerequisite to being a Catholic: in most of Europe, we have a predominantly Catholic culture, even when it calls itself “secularist.”

    And there is no comparison between the humanity and saintliness of John XXIII and Paul VI, and the paranoid authoritarianism and dogmatic intolerance of John Paul II Wojtlywa, who governed the Church the way the Soviet Politburo did, and Benedict XVI Ratzinger, the first Inquisitor to succeed to the papacy since the sixteenth century.

    During the years of aggiornamento, it looked as if the Catholic Church would become a more accountable, less authoritarian and more pluralist institution. I guess the response of the papacy and the ecclesiastical hierarchy in the United States to the little boy scandals shows how far the Catholic Church has regressed from those days.

  • SB

    Michael I — don’t be naive; digby has made it clear on several different occasions that he despises many teachings of the Catholic Church, not just the Popes themselves. (He apparently despises the Popes for sticking to what he views as bad doctrines and teachings, rather than changing them to better fit the values of European secularists.)

  • digbydolben

    “Despises” is too harsh a word, actually.

    I REGRET that the two most recent Popes have lacked sufficient nerve to continue in the vein of Vatican II, to implement changes that were a RETURN to a purer doctrine. What we’ve had ever since the Popes lost faith in the Spirit that guided John XXIII has been as much of a “cult” of an authoritarian papacy as Pio Nono tried to implement.

    American Fundamentalist Catholicism is actually worship of an Institutional Church, rather than worship of God. The Protestants–the liveliest of whom have now become Fundos themselves, and Scriptural literalists–have, in their final period of decadence, been proved right about the Catholics. Too bad, because Catholicism was ONCE the only form of Christianity that reconciled faith with REASON. Just a year or two ago, out here in Albuquerque, the tyrant who calls himself “Archbishop of Albuquerque” fired a theology teacher for telling an anxious student in the high school I taught in until just recently that she wouldn’t necessarily “go to hell,” if she missed mass. THAT’S what American Catholicism has come to.

  • digbydolben

    That should read “Archbishop of Santa Fe,” above–the successor of Lamy, the Archbishop of Cather’s novel–who was actually not so sweet a gentleman as Cather represents him to have been.

  • “paranoid authoritarianism and dogmatic intolerance of John Paul II ”

    Where do you see “dogmatic intolerance” and “paranoid authoritarianism”?

  • SB

    Well, I’ve seen digby disagree with Church teaching on abortion (which means that only the diehard conservatives would disagree with him, everyone else would just pretend not to notice) and marriage, and those Church teachings go way back before Pope John Paul II, so it’s rather paradoxical to suggest that a continuation of “Vatican II” would have meant a “return” to 21st-century secularist values.

  • dominic1962

    JP II guilty of “dogmatic intolerance” and “paranoide authoritarianism”? We think he was a touch too liberal, if anything.

  • dominic1962

    Furthermore, I think it is funny that anyone is actually lauding European “Catholicism” vs. American “Catholicism”. Catholics in America are far too ignorant and liberal (the words go together like peas and carrots) generally speaking. I wish more bishops would put the heat on theologians and catechists that do not teach what the Church teaches. As to the supposedly more authentic European Catholicism, why is this continent a practical desert? You have no vocations, you have no Mass attendance, you have nothing. Your people are having 1.2 kids, if you’re lucky, and you are being replaced by Muslims. The birthplace of Christendom looks pretty pathetic outside of the traditional communities sprinkled around the lands.

  • digbydolben

    Ask the novices raped by Father Macial if John Paul II wasn’t an “authoritarian” in his dealings with them.

    Ask the parents of kids violated by priests of the Archdiocese of Boston if John Paul II’s approach to their charges against Cardinal Law wasn’t arrogant and contemptuous–an example of the kind of elitist clericalism that Vatican II sought to end.

    How many of the great lay movements of the modern Church–Egidio and the rest–began in Europe, and how many began in America? You Americans’ provincialism and xenophobia are positively freakish!

  • dominic1962

    You have to resort to the child abuse stuff because appealing to emotion is about all you have to do. Did he hold fast to Church teaching? Pretty much, could have tightened things up a bit with the Mass et al.

    I don’t recall any measures against “elitist clericalism” in the documents of Vatican II. Is that one of those “Spirit of Vatican II” things?

    Finally, I’ll be impressed by lay movements like Egidio when they last more than a century. I’m not bashing Europe, I wish it would come to its senses again. I wish Europe would respond to the Holy Father’s call against materialism and secularism and I wish they would establish a strong sense of Catholic identity again. However, unless something miraculous happens (which could very well happen), Europe’s glory days are long gone.