Friday, February 08, 2013

Wisconsin Gun Bans

A couple weeks ago I got an email survey from a former state representative of mine in Wisconsin who has kept me on his email list. Judging from his previous messages, he is pretty much opposed to anything I would interpret as a reasonable reading of the 2nd Amendment to the US Constitution, especially so if one reads some of the surviving records of the state ratification debates.

Since he is no longer my rep I didn't complete the survey, but did send him an email in return.
Dear Representative XXXX,

Thanks for sending your legislative survey.

I noticed that Question 2, Public Safety, includes "Prohibit gun straw purchases". It is my understanding that this is already a federal felony, and that the federal government sees fit to prosecute roughly 70 out of about 70,000 violators each year.

If there was some reason to believe that the State of Wisconsin would have a better record of prosecutions than the federal government, I could support increased penalties at the state level, but just enforcing state law as it stands today seems to be too much to ask of the state. Increasing penalties is pointless if you refuse to prosecute anyone now. I think it would be much more effective to aggressively prosecute under existing law rather than increase penalties but refuse to prosecute.

As for banning assault rifles and high capacity magazines, I oppose banning them for several reasons.

1) According to FBI statistics, rifles of all kinds accounted for 323 homicides nationally in 2011. In the general scheme of US homicides, this is a very small number, and the number which might be accounted for by assault rifles in Wisconsin is smaller still. (source: ) That is important for reason 2:

2) A ban on either assault rifles or high capacity magazines will clearly be highly divisive. Given that there is little reason to think that a ban would significantly reduce killings, would a ban be worth the hostility toward government which would clearly result?

3) A ban on either would be almost certainly held unconstitutional. The Supreme Court has already held that the 2nd Amendment protects the right to arms, and the "militia" part of the 2nd Amendment makes it clear that the Framers were most concerned with military weapons, not sporting weapons. I have to believe that, whether we like it or not, the greatest constitutional protection is given contemporary military style weapons and their magazines.

4) Given point 3), a non-trivial number of people might engage in armed resistance, and that would be far worse for our country than the deaths of some fraction of 323 people (many probably themselves criminals) per year.

I have heard some people liken resisting bans of military-style weapons and magazines to the situation of a hitchhiker picked up by a van driver who tries to persuade him/her to allow the driver to handcuff the hitchhiker to a ring bolt in the floor. "Just let me handcuff you and everything will be fine. Really. Don't force me get violent. Just let me make you helpless and you will be all right. I'm OK, and you will be too. Let me handcuff you to the ring bolt." They ask "Is that the time to let oneself be handcuffed, or is that the time to fight to the death?"

Once you have allowed yourself to be handcuffed, you are 100% dependent on the continued good will of the driver and of whoever the driver may turn you over to. You have no options because you surrendered them to the driver who assured you that surrender was better than fighting.

In the case of government, you are 100% dependent on the continued good will of not only today's government but of whatever that government might evolve into over decades. So are your children and your grandchildren, and so on. In the 19th century Germany was a great Western industrial country with a major intellectual tradition. In 1913 would anyone sane have believed that within a middle aged adult's remaining lifetime the government would build death factories and murder 6 million people? Of course not. They would have risked being locked up as nuts.

But that didn't stop the Holocaust.

My point is two-fold: Some believe that because we cannot control the future, the benign intent of today's legislators is irrelevant to the long-term consequences of a ban. There are gun owners who, rightly or wrongly, believe they have a constitutionally protected right to military weapons. Some small fraction of them may well use their weapons to defend that right. It does not matter that current efforts are benign, nor if gun owners are correct or not, all that matters to their behavior is their belief.

I hope that you will work to prosecute straw purchasers under existing law, and that you will resist a divisive, probably unconstitutional, ban.

Sincerely yours,

Tom Bosworth
If you are interested in what the Framers and those who ratified the 2nd Amendment are recorded as saying, try "The Founders' Second Amendment: Origins of the Right to Bear Arms" by Stephen P. Halbrook.

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