Photo of the day

From Time’s gallery of the year’s best photos:

A beluga whale sprays water towards visitors during a summer attraction at the Hakkeijima Sea Paradise aquarium in Yokohama, suburban Tokyo. Tokyo's temperature climbed over 34 degree Celsius on July 20, one day after the end of the rainy season.

Regulating guns

Loved this article from law professor Sonya West in Slate emphasizing the fact that even with the DC v. Heller interpretation of the 2nd amendment, there’s still a lot of room left to regulate guns:

You’ve likely heard it from any number of sources. Perhaps it was from a presidential candidate, a lawmaker, your libertarian brother-in-law, or your Facebook frenemy. Whatever the source, you likely have been told that regulating guns in virtually any way violates the Second Amendment. 

I therefore offer today this quick constitutional refresher course: It does not.  [emphases mine]

Constitutional rights are not absolute. They never have been and, practically, never can be. In our constitutional democracy, we have always recognized that we can, and must, have our constitutional cake and regulate it too.

Take, for example, our freedom of speech. It is one of the most clearly stated and robustly protected rights in the Constitution, yet it is also subject to numerous restrictions. Our speech might not be protected if it falsely damages someone’s reputation, aids and abets a crime, contains a threat of violence, reveals a trade or military secret, harasses, plagiarizes, inflicts severe emotional distress, is deemed to be obscene, incites violence, or leaks classified information, to name a few. The United States Supreme Court further allows restrictions on when, where, and howwe can express ourselves even when the message itself is protected. In some cases we control who may speak, such as limitations we may constitutionally impose on the speech of students, prisoners, and government employees

The same is true of our freedom to exercise our religions.  [Plenty of examples of limitations follow] …

The Second Amendment, of course, is no exception. In the 2008 case of District of Columbia v. Heller, the Supreme Court told us that we have a constitutional right to possess firearms for self-defense, at least within our homes. But the opinion never suggested that this right was unconditional or immune from all regulation. In fact, Justice Scalia, writing for the majority, said just the opposite. In Heller, he specifically said that “the right secured by the Second Amendment is not unlimited.”  

Protecting the right to keep and bear arms is not the same as forbidding all regulations on that right. We can protect that right and still require background checks, permits, and training. We can still regulate when, where, and what kinds of guns are allowed. In some cases, we can regulate who can obtain guns, imposing restrictions on, for instance, felons, the mentally ill, and known terrorists. We can ban firearms such as military-style assault weapons that (like child pornography) plainly cause far more harm than they add in value. We can require those who are negligent with their weapons (as we do those who are negligent with their words in defamation cases) to be held liable for the harm they inflict on others. We can do all of these things; we just don’t. There might be policy reasons to debate the pros and cons of specific regulations, but there’s no reason to assume that there is a constitutional problem.

And you don’t need to take my word for it. Let’s take another listen to Justice Scalia inHeller, shall we? The Second Amendment, he stated, does not protect “the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.” He further noted that nothing in the court’s decision “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

The Supreme Court just refused to take a case letting an Illinois municipality ban on assault weapons stand.  And speaking of which, I am under no illusion that an assault weapons ban will solve our gun problem.  That said… ban them!!  Of course they count for a trivial portion of gun deaths and bad guys will find other ways to get bad weapons if we outlaw them, but, of course, we should make it harder.  We ban fully automatic weapons.  We ban RPG’s.  Why should we not ban for civilian use weapons which were created explicitly for soldiers to be used in war (or, a modestly modified version thereof).  Nobody needs an AR-15 anymore than they need a grenade launcher.

In one of my rare disagreements with Jamelle Bouie he argues that an assault weapons bad is bad policy as long guns account for only 3.5% of shootings.  No argument here, but if some regulation could make that 3.3 or 3.4%, I’ll take it.  The benefit of this policy?  Maybe some tiny fraction of people are not killed in a mass shooting.  The cost?  Some yahoo with self-esteem issues doesn’t get to feel more manly by owning a military-style gun.  I’ll take the trade.

The NYT had a feature on the guns used in recent mass shootings.  Yes, many of them were handguns (I’m a huge supporter of bullet limits, but that’s for another day), but many were also like this Smith and Wesson M&P15 below.


There’s just no reason an American should be able to walk into a gun store and pick one of these up.

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