John Hinderaker of Powerline makes the case that Bundy doesn’t have a legal leg to stand on, despite sympathy for his problems with the Federal government. Yet, what is legal in the creeping lawlessness of increasingly out of control Federal agencies, bureaucracies, laws and regulations. Indeed, given the utter and staggering pile of laws, rules and regulations we’re all guilty of something, as pointed out in Glenn Reynolds’ Ham Sandwich Nation. If it weren’t for alleged violations of the desert tortoise under the Endangered Species Act, some other suitable charge could be brought against Clive Bundy to confiscate his ranch.
Most of we peasants are much too busy to devote our time to such undertakings. Most of us are too busy trying to make a living to have, after taxes, enough to take home to put food on the table, clothes on our kids’ backs and a roof over their heads. Most of us, if ever confronted by the federal government, would simple not have the time or resources to stand against such an assault.
And, there are people, however, who do have the time and resources to move the federal government against such citizens as Clive Bundy. Corrupt politicians in league with crony capitalists and other assorted rent seekers. For, the law was brought against Bundy for the purposes of such mutual enrichment. The head of the BLM is a former Senator Reid staffer. There are allegations that the interest in Bundy’s ranch is tied up in a solar project between Senator Reid’s son Rory and Chinese interests. Further, we know that Senator Reid has grown rich in office; far in excess that what could be accounted for by his Senatorial salary.
You can connect the points, but can you prove that in court? Alleged is the best we can say for this corruption is difficult to prove and far beyond Clive Bundy’s ability to ferret out. Because, this corruption follows the Chicago Way. Everything is ‘understood’ so there are very few actual quid pro quo’s actually uttered. It was ‘understood’ that the newly minted US Senator from Illinois–Obama–was going to get his mortgage from Northern Trust for his 1.5 million dollar manse in Chicago’s Hyde Park. And, it was also ‘understood’ that the lobby of Northern Trust was not going to be trashed by ACORN.
You can’t prove it. You can’t fight it. Connections with the right people and between the right people can bring down the frightening wrath of the federal government against individuals and totally destroy them. Given that one million dollars is 1/1,000,000 of a trillion dollars, what’s a million or two given away to a connected politician for a favor. With the trillions being spent in Washington DC, a million here or there simply gets lost in the clutter.
Which finally brings up the only saving grace in this temporary truce concerning the Ranch Bundy. The Second Amendment. The rule of law of last resort. The citizens that went out to protest and obstruct the depredations of the BLM agents were armed. They wisely kept their guns in their trucks and automobiles. But, the agents knew they were there. And, those agents caved. Caved because they weren’t professionals. Professionals, warriors in the true sense of the term have a discipline that keeps them from engaging in gratuitous destruction. Such as holing water tanks, destroying fences and killing prize bulls.
Bureaucrats with guns out for a little adventure away from the boredom in the office cubicle. Sniper rifles, real assault rifles! Cool toys for your little adventure scaring the peasants. Hired thugs with guns. Guns, that in other circumstances, would have been effective intimidation in gun-controled blue America. But, they knew they were up against people similarly armed and suddenly the job wasn’t easy. So, true to the thug code, you go somewhere else where the pickings are easier. They, the BLM agents, weren’t about to die for the desert tortoise.
Senator Feinstein knew exactly what she was doing with her ‘assault weapons’ ban. And, so did her fellow travelers such as Obama. The weapons they targeted are the civilian versions of similar military versions; and as such, are designed to take a beating and continue to function after literally firing hundred of rounds. These are the weapons, though lacking full auto capacity, that provide the individual citizen the necessary parity to stand against thugs in the pay of tyranny. The BLM agents caved because they knew that they against skilled marksmen–I suspect a lot of ex-military–with the necessary weapons to create that parity. And, the protesters knew that too.
While the ‘Firearms Interstate Commerce Reform Act’ of the 1968 Gun Control Act is a much-appreciated reform, it falls into the category of half measures. Gun control is yet another example of the detritus of a century of ‘progressive’ legislative initiatives that has now brought our nation to its knees with unsustainable debt and regulation.
The entire gamut of gun control regulations is going to have to come under a through scrutiny. While Justice Scalia, in his Heller opinion made room for the role of regulation, the notion is largely boilerplate since none of the rights secured by the Bill of Rights is absolute in all circumstances. But, the focus is going to have to change and the scope of these regulations narrowed since the burden of justification for these regulations will fall on the government to specifically show their necessity. The reason is that Heller and McDonald profoundly shift the locus of control over the rights enumerated from the government in the militia interpretation of the Second Amendment into the hands of the individual.
First, we need to look at the issue of the militia and this quote from the Miller case of 1939; the decision that best embodies the militia interpretation of the Second Amendment:
The significance attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
The above quote implies the individual possession of arms. But, it places that possession into scope of these arms to be used at the behest of a governmental need. It would also imply that the government would have some role into what arms would be appropriate for militia use; in part dictated by the mission envisioned for the militia.
Just on this basis alone, one could argue that what is already in use by infantry soldiers and law enforcement would, by default, be a weapon in ‘common use’ for militia use as well. The first general mission would be a battlefield situation of holding or taking ground. This would involve holding and securing roads, crossroads, bridges and other strategic facilities (power plants, industrial infrastructure or refineries). This would, therefore, require, at the very least, semiautomatic rifles and pistols with large capacity magazines. The rifles would have to be modeled off military assault rifles since, unlike hunting rifles, these weapons would need the durability to allow for high volumes of fire.
Safety for these militia members would be the same as our uniformed soldiers and law enforcement personnel. Flash suppressors and, increasingly, sound suppressors to protect a militia member from danger of giving away his position.
The second arena of conflict would be close quarters combat. This might be in situations where combatants close to distances of 50 yards or less. Or, combat situations that require the control building requiring those structures to be cleared of enemy personnel. This may be more in the domain of law enforcement. But, this is also very much an issue faced by our soldiers in suppressing the al Queada insurgency in Iraq.
In close quarter combat, long range precision become second to the accurate delivery of a high volume of fire. That means automatic weapons. Not necessarily a ‘machine gun,’ but, at the very least, a three round burst capability standard in the military’s M16 rifle and M4 carbine.
Additionally, gunfire in an confined, indoor space can create noise and flash is can be particularly disorienting. And, potentially lethal if you are blinded by muzzle flash or disoriented by the noise of a gunshot magnified by echoing in an enclosed space. You ability to follow up, to stay oriented and aware may be the difference between life and death. Again, reason to have flash and sound suppressors on your firearm.
Combat in confined spaces will now bring up the need for more compact firearms. Rifle barrels shorter than the National Firearm Act’s (NFA) sixteen inches. And, short barreled shotguns. The M4 Carbine has a barrel length of 14.5 inches.
So, even from the standpoint of the militia model of the Second Amendment, one can call into question the Constitutional legitimacy of regulations imbedded in the NFA.
Now let’s move on to Heller and McDonald and the newly enshrined protection of the individual right to keep and bear arms for defense of life, liberty and property. So, in addition to militia duties, we now add a whole new universe for the keeping and, in the gravest extreme, using lethal force. At this point, the state’s interest in an armed militia become an expectation that the expected armament will meet some minimum criteria of weapons in ‘common use.’ But, beyond that minimum criteria, we now come to the individual’s choice as to how he will equip himself to protect life, liberty and property. And, beyond militia duties, where and how he will engage when a perceived threat arises.
The most likely area of threat will be defense of home and family or possibly his business. This will almost invariably require the defense of an enclosed space; a residence or place of business. All of the tactical considerations of close quarters combat and clearing a building come into play. Therefore, all of the above considerations of more compact weapons, weapons more easily wielded in confined spaces, sound suppressors, flash suppressors and a high rate of fire become more than a matter of militia preparedness. Further, since we are talking of an individual right, the interests of the state now only come into play if there is a clearly defined public safety issue.
Then we move on to the subject of the Gun Control Act of 1968 (GCA). The requirement of filling the ATF 4473 form can now be called into question since we now have issue of prior restraint and privacy in the exercise of a right secured by the Bill of Rights. A case might be made if it were a method to insure that citizens fulfilled their militia obligations by purchasing and maintaining weapons suitable for militia duty. But, in the era of an individual right and a National Criminal Instant Background Check System (NICS) to confirm that the potential gun buyer is indeed eligible, why is it any longer necessary to permanently record a purchasers name, address and so forth? If the purpose is to prevent the sale of a firearm to a violent felon, a much more unobtrusive manner of check is now the more Constitutionally appropriate order of the day; such as the NICS.
Finally, there is the issue of felony convictions for mere possession of a firearm or certain firearm accessories. The whole concept of guilt by possession come from the paternalistic attitidue that you’re not allowed to have that ‘bad’ thing anyway.
So, as a result, we now have the issue of somehow creating a whole new area for appeals for existing gun control laws as they are modified to accommodate the new world of the Second Amendment of the individual right. This goes back to one of the biggest casualties of gun control–res mens, the guilty mind. Or, in my way of thinking, the concept of the reasonable layman; the layman who can’t hope to know every nook and cranny of Federal, State and Local law and regulation. That is, there was a purposeful intent to commit harm. Therefore, rather than slapping another ten years on to a sentence for merely possessing a firearm, there will have to be more careful prosecutions to show that that possession was integral to the intent to facilitate the crime. And, appeals for prior convictions, will now need to be reviewed in the light of criminal use of firearms. This will be a mess, but this is the price of sloppy jurisprudence of ‘piling on’ charges in the first place. Welcome to the new world of deferring to Constitutionally secured individual right and the need for greater precision in determining the precise nature of what evil was actually committed. It’s a concept that is going to have to percolate itself back into our legal community.
I take the concept of militia duty seriously. In fact, as a former Naval officer, militia laws expect me to show up for militia duty in time of emergency until the age of 62. But, as a member of the militia and an individual, who in the gravest extreme, will use lethal force to defend myself, my family and my community and country, I very much expect that my government will indeed furnish, or allow myself to furnish, those weapons, reflecting the cutting edge of self-defense technology, that will optimize my chances of success and survival.
I wish to credit Gun Fight by Adam Winkler and Second Amendment Penumbras: Some Preliminary Observations by Glenn Harlan Reynolds for the ideas that I expanded on in this posting. It’s been 30 years since I graduated from college so I’ve basically forgotten all the rules of footnoting. And, I majored in engineering anyway.
The iconic cowboy. Tall, rangy, taciturn. Given to few words. An economy of motion; yet when so moved, actions that really count. And, on his right hip, a firearm; a six-shooter. An interesting icon since most warrior-heros from other cultures trend to a larger than life heros, some form of royalty, in the form of a samurai or knight. Yet, for most Americans, the hired hand, the livestock herder, the man of uncertain pedigree serves as our very distinctly American samurai.
The identification with such an individual comes from a distictly American trait of independent thought and action. The firearm represents a very physical confirmation of that independence. But, by having the means to have some say in the gravest extreme, that same firearm also leads to a independence of thought and action that does not wait for approval from some authority, usually governmental.
But, because the private ownership of firearms is a rebuke to this utopian zeal. To own firearms is to affirm that freedom and liberty are not gifts from the state. It is to reserve final judgment about whether the state is encroaching on freedom and liberty, to stand ready to defend that freedom with more than mere words, and to stand outside the state’s totalitarian reach, this very icon is very much reviled over large swaths of the earth. Particularly by the elites who fancy themselves as Plato’s Philosopher Kings. Philosopher Kings who find it offensive that beings lesser than themselves would have the temerity to make decisions independent of their elevated educational attainments. Especially cow-excrement encrusted cowboys. Like John Wayne. Like Ronald Reagan. Like George Bush.
So, now we come to the terrorist events, courtesy Islamic imperialism, in Mumbai. It is unbelievable that ten men could so paralyze a city of some 19 million people. The short answer to the success of this attack can be traced to not enough cowboys.
None of the victims or those who survived and escaped that any credible means to defend themselves. Even if, at each of the locations attacked, there were one or two individuals in possession of a firearm the results could have been so much different. I’m not impressed that any of these terrorist jackals had any real training to confront determined and armed opposition. You’re going to look like a real pro on the security camera if you’re shooting at helpless, unarmed victims.
I remember, in the run-up to Desert Storm, about the “battle-hardened” Iraqi army that our soldiers would confront. But, this battle hardening was shooting at poorly trained Iranian teenagers in the swamps bordering Iran and Iraq during the previous ten years of war between Iraq and Iran. And, it turned out that those “battle-hardened” Iraqi soldiers were rapidly rolled up by the US Army; sometimes in a matter of hours.
I suspect the same is here. All it would have taken was one of those policemen at the train station to open fire while the terrorists were re-loading. The mere sound of a bullet whining by those terrorists would have changed the tactical dynamic.
Then, of course, after the firewall of police protection was breached, was that there was no recourse to avert the killing since no one else had a gun. Heavens that the cowboy mentality be allow to pervade the land of Gandhi. Had such a stunt been tried in a restaurant in Texas, Florida or Wyoming (states where I have or had a concealed carry permit), there’s a high probability that one of the patrons would have been armed. Moreover, said patron would have, by training, the presence of mind to engage these terrorists in a methodical manner, thereby increasing the chances that the murders of Mumbai would have ended very quickly. A armed, well-motivated armed citizen could have used the cover of the confusion to successfully close in on the bad guys and successfully engage them. Or, such an armed individual could have successfully, by shooting, created a new dynamic of confusion–this time for the assailants–to actually allow some of the victims to escape.
The point is good guys shooting back at the very onset would have so altered the tactical dynamic and greatly slowed the success of these terrorists. And, for the future, created an uncertainty that would serve as a deterrent for future such attacks.
And, oh my gosh, all those cowboys shooting up the joint! They would just leave heaps of dead strewn over the floor! On 9/11 airliners could have been punctured by wildly shot bullets that would have caused the plane to crash! Well, no armed citizens, no cowboys. And, oops! Heaps of bodies were strewn over the floors of two hotels, a train station and the Chabad House. And, four airliners did crash; one each in the World Trade Center towers, one in the Pentagon and one in a field in Pennsylvania. Gun-free zones and cowboy-free zones really work. Kumbayah!
Would such a “cowboy” mentality have caused casualties among the innocent? Maybe. But, statistically, armed citizens only mistake an innocent person for a criminal twopercent of the time. The error rate for police is eleven percent. Armed citizens have a very good track record in responsible use of lethal force. You have a total mal-deployment of forces. You can’t have the government everywhere guarding every mall, train station and hotel. You’re better off taking governmental forces, going to the source and attacking the bad guys at the source. Trust your citizens, armed citizens, to be capable of guarding the home front.
But, instead we are going to be inundated with sappy stories about “moral” victories of survivors prevailing, by pure luck, in the murderous rampages of Mumbai. The real moral is that the terrorist won and won big. Just like, for all of his brave efforts, Schlindler still didn’t make a real dent in the six million Jews murdered by the Nazis. For all of its critical acclaim, the movie Schlindler’s List still tiptoes around that pink elephant standing in the living room.
The only moral victory I’m really interested is the kind provided by Easy Company in Band of Brothers. The good guys, armed to the teeth, totally blow away the bad guys. And, that’s what should be happening against Islamic imperialism; in Mumbai and everywhere.
Finally, because of a fundamental distrust governments have towards individual citizens acting in a responsible manner with lethal force, the thwarting of such murders right at the “retail” level will have far bigger ramifications. Bigger ramifications since failure to stop this murderous rampage right at it inception allow it to grow to a point that we now have two nuclear powers, India and Pakistan, at odds again. Maybe even to the point of a shooting war.
Or, for the lack of a single armed passenger on any one of four flights on September 11, 2001, we saw three thousand Americans killed in the World Trade Center and at the Pentagon. And, four hijackings indeed rose from the level of a law enforcement problem to that of an act of war. An interesting “what-if.” What would the political dynamic be now, what would the last eight years look like, if armed citizens on four civilian airliners killed the 18 “holy” warriors on 9/11.
The Saudi oil tanker is in the hands of Somali pirates; and in international waters well removed from Somalia off the coast of Tanzania. Here’s Powerline. Here’s a ship that’s worth the better part of a billion dollars carrying a cargo of about 100 million dollars worth of oil. And, it crewed by just 25 men.
I’ll also hazard to guess, other than a random smattering of pistols between the captain and two or three other ranking officers, the ship and crew are completely defenseless.
I’ll not get into the details of what it would take to defend a ship against boarding on the high seas. Or, whether a firefight on board a tanker would actually result in a massive confligration or explosion. But, even if the Saudi owners did not value the lives of the 25 crew members, one still wonders why it would not take better care of an investment in ship and cargo that costs a significant fraction of a billion dollars. But, it seems to me that these crews need to be enlarged to mount a more effective watch. These crews need to be armed and trained to resist and repel pirates. Armed merchant ships are not a historical anomaly.
Why, are these ships, or at least the crews not armed? We know, when it comes to crime at home that calling 911 will not necessarily save your life from criminal predation. And, the police have no legal liability to protect you from a criminal. In a similar fashion, one cannot expect naval forces to be in everywhere, patrolling thousands of square miles of seas and accounting for tens of thousands of ships that pass through the sea lanes along the east coast of Africa. Or, has the 911, call the police to protect me mentality, so permeated the merchant marine as to think that you can operate in international waters in a personal crime-free bubble.
Or, are the tyrants and dictators of these countries that own and flag these respective ships so afraid of an armed citizenry that the loss of 25 crew and a supertanker are a small price to pay to keep their restive subjects under their thumb? Perhaps, arming the crews may not have any material impact on their political control since these armed agents are at sea. But, these crew come home with dangerous and heady ideas of having control over their lives that can only come with the possession of lethal force. Dangerous ideas of why can’t I have the same control over my life at home as on the high seas.
Here’s Obama, on September 15th in Colorado (hat tip; Hugh Hewitt):
“The bottom line is this. If you’ve got a rifle, you’ve got a shotgun, you’ve got a gun in your house, I’m not taking it away. Alright? So they can keep on talking about it but this is just not true. And by the way, here’s another thing you’ve got to understand. Even if I wanted to take it away, I couldn’t get it done. I don’t have the votes in Congress.”
Get that: “I don’t have the votes in Congress” to take away your guns. Rights are secured by the Bill of Rights. They are not granted by our government. It seems, in Obama’s world view that rights secured by the Second Amendment only exist until Obama can cobble a congressional majority to restrict or eliminate them. And, this comment came in the context of the post-Heller world.
Here again we have the UN Secretary General, vying for for the Oval Office, with an attitude towards the US Consittution that befits a tin-horn dictator from the third world. Rights are gifts of the state. Rights can be voted in and out of existance merely by rounding enough votes in the House and Senate.
This was another unguarded phrase that speaks volumes of the man and his attitudes. Are the freedom of speech or free assembly to be treated in a similar cavalier way? With Obama, I suspect so. Here’s some of Michelle Obama’s thoughts on her husband, the prospective UN General Secretary of the United States:
Barack Obama will require you to work. He is going to demand that you shed your cynicism. That you put down your divisions. That you come out of your isolation, that you move out of your comfort zones. That you push yourselves to be better. And that you engage. Barack will never allow you to go back to your lives as usual, uninvolved, uninformed.
We have a man who has very definite ideas as to how our society should be ordered. You may not be “isolated” or “cynical.” You will never be “allowed” to be “uninvolved.” You are commanded to “engage.” This speaks of a man with very little tolerance for any objections to his Orwellian world view. So plan to show up for your required daily “Two Minutes of Hate.”
There’s also a serious prospect that the “fairness doctrine” will be re-established if Obama can pony up the votes; so much for the First Amendment.
There is a real litmus test regarding a politician’s respect for the limits of governmental power; the Second Amendment. It is the canary in the coal mine. What you do to the Second Amendment can, shall and will be done to the rest of the Constitution.