Comparatively speaking, we aren't so different!

A

Al Norris

Moderator Emeritus
We've had these arguements many times: What right is actually protected? Concealed or Open Carry? Convicted felons to carry?... ad nuaseum. We never arrive at a satisfactory conclusion, the threads almost always get locked because of our behaviors within the threads... also ad nuaseum.

Would it surprise anyone to know that the legal community does the same? Would it surprise anyone that on the admittedly conservative blog over at The Volokh Conspiracy that the same exact arguements are used as we use them?

Here, I would like to offer a recent blogspot, where Prof. Volokh reports the results of a kentucky case and a brief set of responses by our own Brett Bellmore and Clayton E. Cramer. These are names you should recognize, but if you don't, I've provided links so you can familiarize yourself with these two fine 2nd amendment advocates.

[Eugene Volokh, February 27, 2006 at 6:27pm ] 0 Trackbacks / Possibly More Trackbacks
State Constitutional Right to Bear Arms Opinion:
The Kentucky Constitution states,
All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: ...

Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.
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Kentucky courts have rightly read this as protecting people's rights to have guns for their own self-defense ("in defense of themselves") and not just for the common defense. Does this, though, apply to convicted felons? Last Thursday's Kentucky Supreme Court decision in Posey v. State answers "no," but in much more detail than all the other state court decisions that have likewise held that felons are implicitly excluded from state constitutional rights to bear arms. There's even one dissenter, who would hold that some felons (though probably not those convicted of the more serious felonies) do have a right to bear arms under the Kentucky Constitution. If you're interested in either the right to bear arms or the broader question of how courts should interpret Bill of Rights provisions, these opinions are much worth reading.

Brett Bellmore said:
Nah. The 2nd amendment protects the right to keep and bear, own and carry, weapons. Not the right to carry them hidden. At the time the 2nd amendment was ratified, concealing a weapon was considered to be the sort of thing only a highwayman or similar criminal would do, whereas honest men bore their weapons openly.

I think in some respects fighting for concealed carry reform, instead of fighting to prevent the prosecution of open carry as "brandishing", was a mistake. Open carry at least has the advantage of getting people used to seeing guns again, which goes a long way toward extinguishing the phobias the gun control movement works to encourage.
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Clayton Cramer said:
Gordo said:
In addition, I would assume that according to some of the 2nd amenmdnent absolutists who post here regularly, the second half of the Kentucky right to bear arms, limiting concealed weapons, violates the 2nd amendment to the United States Constitution.

Any arguments, folks?
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The reason that the second part of the Ky. Const. provision specifies this is that in Bliss v. Commonwealth (Ky. 1822), the 1813 statute prohibiting concealed carry was struck down for violating the right of the people to keep and bear arms. There's a detailed discussion of this, and the 1850 Constitution's revision, in my book Concealed Weapon Laws of the Early Republic.
Brett Bellmore said:
Nah. The 2nd amendment protects the right to keep and bear, own and carry, weapons. Not the right to carry them hidden. At the time the 2nd amendment was ratified, concealing a weapon was considered to be the sort of thing only a highwayman or similar criminal would do, whereas honest men bore their weapons openly.
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Uh, no. The first laws against concealed carry (which were always full of weird exemptions that rendered them hard to enforce with any regularity) were the last phase of an attempt to stop dueling. My book (mentioned above) has a detailed history of the motivations and legislative and judicial history in the eight states that adopted such laws before 1840. The evidence is very clear for Kentucky, and somewhat less clear for the other states, that the sequence was:

1. Ban dueling. Juries won't convict.

2. Require elected officials, judges, militia officers, and sometimes, lawyers, to swear an oath affirming that they had not participated in a duel, after a particular date.

3. In response, instead of the elaborate sequence of challenging another man to a duel, which sometimes led to reconciliation without bloodshed, when insulted or otherwise provoked, men of political ambitions would simply draw a knife or a pistol and kill the other party. People were, it seems, prepared to kill each over insults, but not to perjure themselves about it. (Bizarre.)

4. Okay, so we'll ban concealed carry. This prevents anyone from taking advantage of another person who doesn't know that you are armed. Also, it takes away the excuse, "I had to shoot him because I thought he might be armed."
Brett said:
I think in some respects fighting for concealed carry reform, instead of fighting to prevent the prosecution of open carry as "brandishing", was a mistake. Open carry at least has the advantage of getting people used to seeing guns again, which goes a long way toward extinguishing the phobias the gun control movement works to encourage.
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The fact is that bans on concealed carry are relatively modern (in most of the U.S.), and the courts have not even consistently refused to recognize concealed carry as constitutionally protected.

Concealed carry creates uncertainty as to whether an adult (or adult-looking teenager) is armed, and thus deters criminal attack for everyone. Open carry (where concealed carry is prohibited) deters criminal attack only for the person who is armed.
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Brett Bellmore said:
I'm certain concealed carry has advantages, but the one advantage it doesn't have is the political/psychiatric one of making people understand that carrying a gun isn't a weird, unusual thing, that all sorts of people who are respectable and peaceful do it. And that's a BIG advantage in the long term.
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That we here at TFL argue and discuss the different point of view is not as unsual as you'd think.

The fact is, those who participate in these threads read, listen, and then reflect upon the events and news taking place in the world. This tends to drive us to research the different areas of the discussion in order to formulate our opinions.

Even if our views differ the debate is healthy for us. While it is one thing to form an opinion for oneself, it is a totally different animal when you present that opinion for discussion to the gen pop. Sometimes you even get surprised that your info is sketchy and your research biased and maybe even wrong.

And while sometimes the debates get heated, that's only because strong opinions are usually strongly defended. All in all, I'm pretty satisfied with most of the discussions that take place. We're an OK bunch.
 
Well said Rob. I argue as much as anyone, more than some. Stongwilled, strongminded isn't always bad, but at times can be a real pain in the a$$.
 
All in all, I'm pretty satisfied with most of the discussions that take place. We're an OK bunch.
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I feelo the same way except I feel sorry for those who don't agree with me, it must be tough to go through life wrong.

WildwhatnosmileyAlaska
 
What's equally surprising is not that there are professors and lawyers who are anti-gun (and post on Volokh's blogsite), but that these learned persons use the same tired old arguments and the same faulty data as we see so often here and from the Brady Bunch.

I've been reading the blog since it started, and you would shake your heads at some of the stuff Academia spouts. Especially after Kopel posts one of his pieces. One would think that FACTS would make a difference to the legal community. Mostly, it doesn't.
 
Law School 101:

If you have the facts, argue the facts.
If you have the law, argue the law.
If you have neither, just argue.

WildatechniqueoftenseenonthenetAlaska
 
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