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Old February 11, 2013, 04:38 PM   #1
theshephard
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Article by Robert Levy on law.com re: gun control

Also posted at THR, but it's another good read for your Monday:
http://www.law.com/jsp/nlj/PubArticl...20130111163132
Levy was co-counsel to Heller and this article was published today. It is Mr. Levy's review of the constitutionality of current gun control proposals.
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Old February 11, 2013, 05:44 PM   #2
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There are times I love Levy and times I don't. His basic thesis is this:

Quote:
Reasonable persons should be able to fashion reasonable restrictions—a framework for gun control in the aftermath of Newtown—without violating core Second Amendment rights
He believes that banning standard-capacity pistol magazines would be a problematic thing, but that a ban on magazines over 20 rounds would encounter less "resistance." Of course, that would cover AR-15 and AKM magazines.

He also seems to accept universal background checks with some qualifications "because it would get us past this particular debate and let us concentrate on options that might be more productive."

Then he veers into drug legalization. Good grief.
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Old February 11, 2013, 06:01 PM   #3
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He said a couple things I disagree with but he was also stating things that could and could not pass constitutional muster, which is what is the most important part at the end of the day.

Edit: I actually partially agree with the War on Drugs argument. Not to the same degree obviously, and for far different reasons. However the point remains that our courts and police forces are more focused on non-violent than violent crimes. Which is backwards.
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Old February 11, 2013, 06:17 PM   #4
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I hear ya on like/dislike for Levy, but your statement about him 'veering' into legalization implies that it's unrelated, which isn't the case.
One of the underlying implications of his article is that gun-control advocates are not actually trying to reduce gun violence because if they were there are many other legislative dials that could be turned with far greater effect than banning a few models of firearms. And thereby he brings up drug legalization. IF one wanted to reduce violent crime in this country, and one knows that much of the violent crime in this country is a result of prohibition (who'd have seen that coming?) it stands to reason that ending prohibition - however that's best done - would cause a greater reduction in violent crime than gun bans. It's an example to prove a rhetorical point. I think his reasoning is sound regardless of one's personal views on the federal government's constitutional power to ban plants (or the wisdom of doing so).
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Old February 11, 2013, 07:00 PM   #5
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I think he should have refined his writing somewhat.

The bit on a new effective AWB doesn't quite come off. He says banning cosmetic features such as pistol grips will have no bearing on lethality, yet he seems to agree on passing some sort of AWB... The problem is that there is nothing to ban except cosmetic features. At least there isn't short of banning an entire action type, such as semiautomatics, which obviously won't fly with SCOTUS, and of course wouldn't be effective anyway. I agree with drug legalization, though I don't like drugs, because we already know prohibition isn't exactly working as planned (oh wait, didn't we figure that out like 80 years ago?).

The magazine argument is easily refuted. Even if we could magically rid the world of everything over 10 (or 20, whatever number you want to use) round capacity, a criminal could plan accordingly and carry more magazines. Those of us who will be using them for self defense or defense of others don't get to plan when we are in such a situation, so this either puts us in a more dangerous position or requires we carry bunches of magazines at all times. Doubt most people can wear a full tactical vest to work and whatnot... so this would help in what way?
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Old February 11, 2013, 08:17 PM   #6
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You guys know that Levy is not a gun owner, right? Never has owned nor wanted to own a gun.

He's purely "in this" for the constitutionality, he has no horse in this race at all.

So read him as the voice of the "concerned about gun safety but constitutional" guy. If SCOTUS plays fair, Levy's position is about as bad as things should get.
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Old February 14, 2013, 04:44 PM   #7
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Quote:
One of the underlying implications of his article is that gun-control advocates are not actually trying to reduce gun violence because if they were there are many other legislative dials that could be turned with far greater effect than banning a few models of firearms.
Infringing on our 1st, 4th, 5th, 6th and 8th Amendment rights would be far more effective in reducing crime and violence. But no matter how effective it could be, it is not acceptable. Likewise, even if infringing on our 2nd Amendment rights would be effective in reducing crime and violence (and the data shows it would not), it is equally unacceptable.
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Old February 15, 2013, 10:51 PM   #8
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Overall, great article. Nobody agrees with everything.
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Old February 16, 2013, 02:48 AM   #9
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I was surprised that Mr. Levy wrote an article premised on looking at the viability of enacting federal laws to "do something" rather than seriously questioning the constitutional basis of such laws.

Managing mental health treatment and arming guards at schools were both noted by Mr. Levy as applications of state police powers which the federal government does not possess. Gun control has historically been a state police power, but he did not even approach a discussion of the source of federal authority in that arena. While federal courts obviously have authority to negate state laws inconsistent with the Second Amendment, Mr. Levy failed to discuss the constitutional power(s) to enact federal gun control legislation.

The Second Amendment does not grant power to the federal government, but prohibits federal action. Federal gun control legislation has been based on either the power to tax or to regulate commerce. I was disappointed that Mr. Levy did not clearly discuss the resolution of collisions between those constitutional powers and prohibitions.
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Old February 16, 2013, 05:04 AM   #10
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Quote:
Even if we could magically rid the world of everything over 10 (or 20, whatever number you want to use) round capacity, a criminal could plan accordingly and carry more magazines. Those of us who will be using them for self defense or defense of others don't get to plan when we are in such a situation, so this either puts us in a more dangerous position or requires we carry bunches of magazines at all times
.

That is exactly right. The defender needs the extra rounds. the criminal has the advantages of surprise and usually some planning. While criminals as a population class are often stupid, there is a Darwinian effect and the ones not in jail and on the streets have been selected for intelligence or better than average planning.

A high trained law enforcement person who can perfectly Mozambique a paper target at good distance 99 times out of 100 at the range is going to fire his 15 or 20 until empty in an exercise approaching reality.

Conversely a school spree shooter with two 45 cal 10 round mag pistols and a couple dozen loaded mags can kill huddled children en masse with impunity.

The impulse on mag limits comes from a) ignorance of how weapons are used differently by attackers and defenders; or b) gun grabbers view that murderers and gun owners are in the same class of persons; or c) both
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Old February 16, 2013, 08:11 PM   #11
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I'm not sure whether or not drug legalization would be an overall benefit to society, but at any rate, I don't agree with his suggestion that it would reduce gun violence.

People involved in the drug trade tend to want to make lots of money with little or no effort. If it were legalized, I don't see them all running out to find legitimate jobs and working for a living. They will just find some other illicit activity to engage in, turf wars and associated violence will follow.
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Old February 16, 2013, 10:58 PM   #12
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I too, am not sure if drug legalization would be a benefit to society. We've been fighting the War on Drugs since Nixon was in the White House. If repeal of alcohol prohibition is any kind of a model, then perhaps drug legalization could reduce gun violence. After 40 years, could it hurt to try something different?
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Old February 17, 2013, 08:49 AM   #13
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Quote:
I'm not sure whether or not drug legalization would be an overall benefit to society, but at any rate, I don't agree with his suggestion that it would reduce gun violence.

People involved in the drug trade tend to want to make lots of money with little or no effort. If it were legalized, I don't see them all running out to find legitimate jobs and working for a living. They will just find some other illicit activity to engage in, turf wars and associated violence will follow.
I disagree. the violent crime results of the illegal drug business are the following: a) Junkies, who cannot/can no longer afford the high price of drugs resulting from the drug's illegality, commit crimes on the general public to get funds to buy drugs; b) the drug gangs, because of the extremely high value of their inventory are actually robbed by other criminals quite often, and often violently. they keep and use weapons; c) non violent drug related crime produces early criminal convictions where young offenders are cycled into prisons and deeply immersed in a violent culture of existing felons.

I don't know where I fall on this. Legalizing highly addictive drugs can be said to put lots of young people at risk. But one cannot ignore the fact that the illegal nature of drugs creates a very high value for them. that high value, the distribution n bad neighborhoods of extremely high value inventory and the unending need for addicts to purchase expensive product does cause crime
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Old February 17, 2013, 04:23 PM   #14
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I agree that the high cost of drugs (because they are illegal) leads criminals to engage in violence to protect their interests.

Making drugs legal may reduce drug related violence. I'm just not sure it would reduce over all criminal violence in the long run.

Repealing Prohibition ended killings over the liquor trade. It didn't end organized crime.

Would legalization make junkies less likely to rob or steal to support their habits? Or would a lower price simply mean that they spend the same amount of money but can now afford more drugs?
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Old February 17, 2013, 04:51 PM   #15
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We're about to find out in WA and CO.
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Old February 17, 2013, 08:46 PM   #16
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Quote:
Repealing Prohibition ended killings over the liquor trade. It didn't end organized crime.
Organized crime is surprisingly adaptable. That said, drug policy is taking us completely off topic here.
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Old February 18, 2013, 12:58 AM   #17
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Prohibition of alcohol brought the gang violence of the 20's and 30'. When prohibition ended, most of the funds financing the gangs went away, and there was a corresponding drop in gang related crime...they lost their funds to attrect new members.

The new prohibition (drugs) has done exactly the same thing, and when it finally ends, you will see the gangs loose membership...for the same reason.. no easy money no attraction.

As long as the government does not get greedy and think they can tax MJ or Cocaine to the price people are paying today on the street, it will make a difference in gang violence. If the governments get too greedy, and just "compete", the moeny from smuggling will still be there, and so will the criminal's source of funds.

The "war on drugs" is just as stupid as the original prohibition was, and only enables the police state and the criminals. It does nothing positive for the safety and welfare of the people.
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