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Gun control, back doors, and a powdered wig

Posted by Thomas Nephew on October 18th, 2002

Keeping up with UO and Instapundit (Jim Henley and Glenn Reynolds) on gun control and ballistic fingerprinting is like playing a kind of “Go” where the other guy puts down five markers a turn, and you just get one. Some points are valid (Maryland’s failure to conduct full criminal background checks for gun buyers since March), some are patently diversionary (gun ownership as international human right; suddenly my favorite hard-nosed realists are for empty gestures?). But one thing at a time. I’ll just bring up a couple of posts, one each by Mr. Reynolds and Mr. Henley. Yesterday, Reynolds wrote:

In fact, gun registration has consistently led to confiscation; car registration has not. It’s not “paranoid” to fear real dangers.

I don’t think that the Second Amendment bars registration. But only an idiot would fail to notice this pattern, and I think that “ballistic fingerprinting” is, in fact, being pushed as a backdoor way of getting gun registration, by people who would favor confiscation if they thought they had the votes.

First, observe those last two sentences. Reynolds concedes that registration is permissible under the Second Amendment, but then considers ballistic fingerprinting a “back door” to — registration. It’s not the registration itself that bothers him, apparently, it’s the supporters of the measure, who he divines will confiscate Americans’ guns if given half a chance.

Now either registration is permissible under the Second Amendment or it is not. I’m relieved that Mr. Reynolds says it is, because that saves me a major argument with a lawyer about the law and the Constitution. If it is permissible, what bearing do the (presumably impermissible) goals of gun-confiscators have on the question, whether they support registration or not? That’s right: none. What some supporters of gun registration may secretly or even not so secretly wish for has no bearing whatsoever on the merits of ballistic fingerprinting and gun registration. I feel like I’ve wasted time even pointing this out, but the argument seems to come up over and over again.

As for those patterns Reynolds mentions, they appear to be based on observations by his colleague Mr. Kopel.* I’ll dutifully plow through them and report back to you, my loyal readers, but the title itself indicates they’re based on the experience of merry olde no-Second-Amendment England, and are thus fairly irrelevant to a discussion of gun registration in the United States. So yes, it is a bit paranoid to fear dangers to our constitutional rights based on the experience of a country without our constitution.

It’s as if we can’t make progress towards a constitutionally permitted state of affairs — gun ballistic fingerprinting and registration — unless we all have adopted doubleplusrightthink about the basic right to own a gun. This brings me to some comments (“Spree Graphs”) Jim Henley made last week. Scroll past the (well done) sniper news and commentary, and you reach the following gun-control section of the post, where Henley takes issue with “Talking Dog”s claim (and Reynolds’ later claim) that the Second Amendment permits registration:

First, in the absence of a formal acknowledgement that the Second Amendment enshrines an individual right, the NRA is only sensible in opposing anything that smacks of universal registration

Moreover, the purpose of the arms-bearing right is to enable the people to defend themselves against an overweening government. (viz Federalist 46.) Any registration scheme the government runs seems to fall foul of a conflict of interest. (This kind of talk upsets a lot of liberals, but it says what it says.)

First, the Federalist Papers are interesting historical documents, but they are to the Constitution as our real estate agent’s praise of our house was to the mortgage agreement we signed to buy it: it’s interesting, it helps explain our state of mind … but it’s nowhere near as important as the contract itself.

Be that as it may. I’m no constitutional scholar, so I thought I’d better have a look, lest James Madison had prescient comments on ballistic fingerprinting 214 years ago. Follow the link yourself: you’ll find that the bulk of the article is about how the States need not fear the federal entity, because citizens will have deeper loyalties to the local than to the federal government. Finally comes the apparent Ur-source for gun ownership rights. Madison discusses the resistance federal usurpers would face from the sturdy armed citizens of the States:

To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.

Now the fairest way to read this is as an elaborate backgrounder for the full Second Amendment, “well regulated militia” and all:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed

What it is not is some kind of brief against regulating guns; the passage above takes pains to ground the hypothetical resistance in the institutions of the given State and its militia; this in turn implies — one might argue it even requires — that guns whose true purpose is the defense of the State should be inventoried by that State and prevented from becoming the tools of criminal or hostile misuse against that State or its citizens.

For what it’s worth, I wouldn’t mind a national ballistic fingerprinting program statute that had an article 2 stating “This statute does not imply the right to confiscate guns,” or words to that effect. If that’s formal enough acknowledgment for Jim and Glenn, great. If not … they’ll need to spell out what kind of formal acknowledgment they have in mind.

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* Kopel, Olson 1999: “All the way down the slippery slope: gun prohibition in England and some lessons for civil liberties in America”

One Response to “Gun control, back doors, and a powdered wig”

  1. newsrackblog.com » Blog Archive » Sure wish we could trace those bullets to the rifle that fired them Says:

    […] For followup articles to this one, see a 10/9 post above (middle ground in the gun debate?), two 10/18 posts (discussing James Madison and the Beauty of Gray) and/or a 10/25 one (discussing the Glorious […]

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