2nd Amendment: You’re Doing It Wrong

I’d like to preface this post by saying that I fully support the 2nd Amendment and the citizen’s right to bear arms. That said, I do think that the argument isn’t being had the correct way.

The Second Amendment and Prior Action:

First, what is the Second Amendment? The text is as follows:

“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.” – Second Amendment

As a native English speaker, the way I read this is “Since a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed”. From a cursory glance (with no constitutional law degree) it seems to suggest that no law may be passed which infringes on the individual’s right to keep and bear arms. That stuff about a militia in front seems to be a justification for why the amendment exists. I also notice something special about its words. It says “the right of the people to keep and bear arms”. To me (again, no constitutional law degree) this suggests a presupposed right to keep and bear arms. The 2nd Amendment doesn’t give you the right to keep and bear arms, it protects it. You already have the right to keep and bear arms. This amendment prevents laws from being passed that restrict it.

Now we need to ask the question what a restriction on your right to keep and bear arms is. Suppose certain firearms are prohibited from use or storage, that could be a restriction on your right to bear arms. Requiring all guns to be stored at some government facility, that could be a restriction on your right to keep and bear arms. Really, what we’re looking for is any law that prevents the user from owning their firearms.

This is why I never buy the argument on the right that gun regulations, making guns more difficult to obtain legally is against the 2nd Amendment. Sure, some things that have been done could be argued to be unconstitutional. For example, the assault weapons ban of 1994 is unconstitutional. It restricted firearms you may legally own to those with some number of modifications. It seems incredibly silly to me, because it seems that you could have all of the components of a prohibited weapon but as long as they’re all apart from each other it’s fine. It’s like if vehicles with six wheels were illegal so you took out a middle row of wheels and put them under the vehicle. You’re still driving on four wheels but you have the ability to switch to a six wheeled vehicle…

The purpose of the assault weapons ban was to prevent mass shootings. You can argue about whether or not it was effective. In terms of mass shootings we see that during the ban there were 16 mass shootings or 1.6 per year of the ban. After the ban we have had over 30 mass shootings over a ten year period (2004-2014). The rate has practically doubled. This is also somewhat troubling because crime rates have been dropping for decades. Despite an overall crime rate drop, why do we see a doubling in the number of mass shootings?

I tend to favor reading this as a correlation rather than a causation. Especially when we see 17 mass shootings from 1984 to 1993. The rate seems to have spiked since the 2000’s. Did anything happen in the 2000’s that may have led to more mass shootings? In today’s political climate, I’m sure people want to hop on the War on Terror argument. Looking at the names of the perpetrators at a glance, I wouldn’t want to hop on that train at all. I do not believe mass shootings are a War on Terror problem.

The (Poor) Arguments:

With all of that hullabaloo out of the way (and I can’t believe spell check isn’t throwing a fit over hullabaloo) let’s get down to the right vs. left argument. The right maintains that a regulation of who may purchase guns is an infringement of rights. I disagree. The laws in gun regulation by and large regulate who may purchase guns. This is not restricting who may own guns. However there are restrictions are who may own guns in federal law. Among the list are people addicted to controlled substances, fugitives, and domestic abusers. There are also a series of non-citizen clauses but if you’re not a citizen then you’re not protected by the United States constitution so I wouldn’t bother going down that rabbit hole.

Focusing on the United States citizens cases, (fugitives, domestic abusers) I don’t think people would generally disagree that these people shouldn’t have firearms. However restricting their right to bear arms is a violation of the Second Amendment. The right to bear arms was presupposed. There wasn’t an exception “The right of the people to keep and bear arms shall not be infringed unless they abuse their spouse”. I imagine the laws stand because of public opinion and safety concerns. But to me, this is a clear case of the Second Amendment being hit. I’m a firm believer of “slippery slope” applying to arguments in law because of how precedent is used. But that’s just my take on this.

“It’s to prevent tyranny”

This is an argument from the right. It’s suggesting that the purpose of the Second Amendment is to prevent tyranny, so that if the United States ever wanted to crack down on the people, they could defend themselves. If the United States wanted to enact martial law (and the armed forces were willing to comply) there isn’t a whole lot you can do with your gun against their tanks and nukes. Seriously, what is this argument even. Again, that doesn’t mean that I believe you shouldn’t have your guns, it’s that the argument itself doesn’t pan out. Could a guerilla warfare force take down the United States? I suppose it’s possible, but highly unlikely. There’s just too large of a technological gap/organization for the people to win. Would this be solved if civilians could own tanks? We’d probably need a lot of tanks. Especially since civilians currently cannot own tanks that actually fire rounds (which I personally find odd because again… the firing mechanism is the “arms” part of the tank).

I do not believe that there is a way to fix this argument.

“…Historical context…”

This one gets played a lot. It is used to justify arguments about what the founding fathers intended. It may be a correct in all terms of historical context, I won’t argue that. But we don’t live in the time of the historical context. If it only makes sense in context, and we’re not in context, then why should it apply? I think this is actually a recurring theme in the arguments from the right. Even if the arguments are justified, most of them seem to be focused on observing tradition. I’m sorry to say that requiring us to observe tradition because we observe tradition is a circular argument.

A way to fix this argument is to apply the reasons for that tradition and see if they still hold today. For example, let’s suppose at some time it was illegal to sell cow meat because all cows were infected with mad cow disease for some reason or another. If we’re here 200 years later and we’re pressing to lift that sale restriction, do we say “No, cow meat has been illegal for 200 years, why would we change it now?” Or do we say “That ban existed for a reason. We have now addressed the cause, as cows no longer have mad cow disease. We may now safely lift the ban”.

“It’s what the founding fathers intended”

I personally find this one to be the worst argument (and it comes from the right) despite being backed up by quite a bit of history. What this argument is really saying is that there is a religion of the Constitution in which the founding fathers are Gods. This is a faith argument. It has ties to a ‘social contract’ argument (which would be valid) and a ‘precedent’ argument. However, it fails out of the gate if we accept EVERYTHING that the founding fathers intended. The founding fathers said that standing armies were dangerous yet here we are with the armed forces. The founding fathers had intended that only educated land-owning citizens be permitted to vote because they had a larger stake in the running of the country than the plebes. Yet here we are with voting rights for any person over the age of 18 years old. The question then becomes, if you want to follow this line of reasoning, why are some intentions of the founding fathers followed yet others are not?

Now I don’t like the idea of the religion of the founding fathers. I like to think that the founding fathers intended for our nation to grow and change with the times, which is why the Ninth Amendment exist. I do not believe there is a way to fix this argument to suit the debate.

“The founding fathers never expected these weapons”

This one comes from the left, often as response to the argument above. I refuse to accept it on premise. I find it odd that the founding fathers didn’t know about the existence of tanks (they should’ve been familiar with Leonardo da Vinci). They knew about machine guns, grenades were used in the Revolutionary war, cannons had existed for years… So to think that these educated individuals didn’t one day expect us to be flying spacecraft or have weapons that fire 10x faster than the fastest firing weapon of the time seems ludicrous. I also don’t think that it’s relevant. Again, there is no religion of the Constitution. We should not be worried about what the founding fathers would’ve wanted. We should examine the Constitution as it is and see how it applies to law.

Ultimately, these ‘intention’ arguments boil down to ‘Not what you said but how you said it’.

“Don’t you care about the 32,000 people that die every year?”

This is an appeal to emotion. It’s not an argument. Suppose we did remove guns from the hands of every law-abiding citizen. The non-law-abiding citizens would still have guns and you have no proof that removing guns makes crime happen less often. We actually have an experimental test case to look at: Australia.

In 1996 and 2003, Australia released mandatory firearm buyback policies. The question now follows, did crime drop after the buyback? Certainly not for homicide. In fact, the homicide rates go UP after the gun ban. It seems crime goes down as enforcement officials go up, not as guns go down. Who would have thought?

I do not believe that there is a way to fix this argument. If the intent is to get the opponent to recognize guns to be a threat to society, you need to bring in numbers. To put this into perspective, about as many people die in the United States by firearm (this includes suicides) as people that die due to motor vehicle accidents in the United States. The average household has about two vehicles (a wash and a wear I suppose) while the average household has 4.4 guns per household. If we look at this from a very elementary point of view, the more guns we have, the more gun deaths we have. If we have twice as many guns as we have cars, we should see twice as many gun deaths (or at least substantially more gun deaths) as we see motor vehicle deaths. But we don’t. So where’s the data that says more gun regulation means less deaths?

On top of that, this ‘argument’ presupposes that I do care, and that I would like to reduce that number. What if I don’t care? Then you need to convince me that we’re better off with those people alive. And since a good majority of them are suicide, removing guns from the picture won’t save 2/3 of these people. The short version is, to fix this argument you must make it a logical argument.

Conclusion:

That’s all of the arguments that I could think of off the top of my head that I have a fundamental disagreement with. I believe that if we want to have this gun debate, we need to move it into the realm of logic and away from these arguments of ‘faith’. We need to look at the arguments for increasing gun regulation and the arguments for decreasing regulation. Yes, people seem to agree on more regulation. Not many people have put forward what that regulation is, but they seem to agree that it is necessary. And if that’s what the people want, then our representatives should get on it. This is how our democracy works.

I think that we, as a nation, have to decide how we want to handle gun ownership. I maintain that as the Second Amendment stands, there are no restrictions on what you may own. That said, addressing how guns are sold through legislature does not seem to have an impact on the Second Amendment. What you are really arguing about there would be your right to purchase a firearm. It should be covered by the Ninth Amendment, in that you have a right to purchase a firearm. But restricting how you purchase a firearm isn’t an infringement of your right to own a firearm. Worst-case scenario you still be able to make whatever firearm you want and own that firearm.

If as a nation we decide to continue to produce and sell firearms, we should be ready to accept the consequences when those firearms are used to commit not only acts of evil but acts of good. If that means 32000 deaths a year and 75000 injuries per year, then that would be the cost of having this freedom. This has been my opinion on the gun debate. I’ll get back to work on the voter stuff soon. Thanks for reading.

Artemis Hunt

 

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2nd Amendment: You’re Doing It Wrong

Voter ID Laws (Part 1)

Can we talk about Voter ID laws? Well, it’s my blog so there isn’t much choice on your end. Either read or close the page.

So with the election coming up, we once again run into the issue of voter ID laws. Especially since North Carolina got shut down when it came to implementing their ID laws. Whether or not you agree with the ruling, or you agree with the idea that the intent of North Carolinean legislators was racist won’t have too much bearing on this post. This post is designed with the intent to evaluate the idea of requiring identification to vote. To be clear: the intent of this post is to evaluate the claims made by both sides of the aisle in this issue.

The first question we must ask ourselves is ‘Why would you want to require identification to vote?’ The answer often stated is ‘To prevent voter fraud’. A typical response to this answer will normally be something along the lines of ‘In-person voter fraud happens so infrequently that it does not change anything’. So the argument would then be that it’s a solution to a problem that doesn’t exist yet. Another argument is that it unfairly punishes impoverished (and by extension, minority) communities since members of these communities are the least likely to have a driver’s license (because they don’t have a car). Going one step further, supposing that they are willing to obtain a driver’s license, that the DMV in their area is either closed or open so few hours during that week that even if they did have the money to drop on a license that they would have to take time off of work to do so. So this second argument is mostly about availability of ID on a person. The argument is whether or not the barrier to entry of ID is too high.

In-person Voter Fraud:

I don’t want to spend too much time on the in-person voter fraud (claiming to be someone that you aren’t) because I truly do believe that it happens so infrequently. Going in line to vote twice and pretending to be someone you aren’t the first or the second time seems like such a hassle for one extra vote (I’ll explain the significance shortly). Especially when it’s incredibly easy to verify that you are in fact not the person you are claiming to be. However, it’s a tricky issue to track. The United States has been around for about 200 years, over which we’ve had 100 elections or so. Electronic voting has been around for about 50 years (or about 25% of total elections).

As a computer science person, I find the idea of anonymous, electronic voting very scary for the integrity of my voting system. I find that super-double-extra scary when many voting machines are being run on proprietary code. Only the companies that run the machines really know the ins and outs of the code that runs the machines. A worker can easily rig the election within minutes. We also run into the issue of the ‘voter card’ (an electronic card you insert into the machine while you vote). It has been shown that you can vote 400 times (or more, I would imagine) with  knowledge of the card being used. I assume that the same voting machines are used each year by the state, so with the knowledge of the machinery involved, I don’t think it’s unlikely that a person could tip the scales electronically. One thing that I’d like to note though, is that voter ID laws would only impact this second option. So instead of getting to cast 800 votes or more, you’d only get to cast 400. Of course, such a method is incredibly dangerous not only because the user can get found out easily, but because its usage is inherently its counter. Consider the following situation:

Goldville has 100 citizens. The Red party and the Blue party compete every year for the title of ‘Best Party’ decided by popular vote. Red party has a few members that find a way to cast more votes so they can bump the Red Party votes up a bit. Election day comes, the people vote, and the Red Party wins. But something’s amiss… only 69 people were recorded to have shown up at the polls but 81 votes were cast. Obviously there can be some human error in counting the people that have voted (we see this in caucuses all the time) but that’s a giant margin of error. Therefore, it would not be unreasonable to think that maybe foul play is at work here.

The moral of the story is: if you want to cheat, cheat smart. Tip the scales in your favor, but not so much as to reveal your hand.

‘Okay, so people aren’t voting twice, but what about dead people. I keep hearing this suspicion of dead people voting’. On Ballotpedia that (paraphrased) “as many as 2600 out of 77000 dead people have cast votes from the grave”. This would mean about 3.3% of dead people are casting votes. 2600 people, depending on dispersion should lie well within the margin of error. Of course, I am skeptical of the claim, and since the citation they use is dead, I have no idea what to make of the claim. However, there were a few other articles which claimed that hundreds of people are voting from the grave in California (as discovered by CBS), and that they do it consistently. However, like the 2600 out of 77000, this should lie within the margin of error. Am I saying that we should accept voter fraud if it lies within the margin of error? No, I am not. However, I am saying that if it lies within the margin of error and victories are beyond the margin of error, then they’re probably not swinging the state from red to blue (or vice-versa).

So I find the issue almost negligible, however that’s not to say that sensationalist sites haven’t muddied the waters. Remember, voter fraud is rather difficult to track, and writers for The Washington Post will often phrase things in such a way as to skirt the issues. They may use prosecution statistics to attempt to prove a point. This runs into the same issue that I ran into with my ‘Racist Cops’ post in which not all arrests lead to prosecutions and not all prosecutions lead to convictions. It’s a better place to start with crime statistics than prison populations because you can be in prison for years but an arrest is one and done. Inmate A may have committed the same crime as Inmate B but since Inmate B had a criminal record they received a longer sentence. Both inmates got arrested for the same crime though, so even though the prison population will fluctuate, the arrest numbers are more steady. Getting back to the statistics cited, a prosecution is the final phase of the process, so I personally find it a misleading statistic to use but it’s probably the second best that you could use (short of arrests). How can you definitively say ‘there were 100 fake votes’ short of there being 100 more votes cast than there were people that live in the area?

In short, I don’t think that voter ID laws would solve this problem of someone pretending to be someone that they aren’t. However, as we will see as we move into the next section, they would prevent certain individuals who shouldn’t be voting from voting.

Voting Requirements: ID

So I wanted an example of required ID to vote. I have selected Texas as my example. What identification is required to vote in Texas? I use Vote Texas as my source for obtaining these requirements.

Acceptable ID:

  • Texas driver license issued by the Texas Department of Public Safety (DPS)
  • Texas Election Identification Certificate issued by DPS
  • Texas personal identification card issued by DPS
  • Texas license to carry a handgun issued by DPS
  • United States military identification card containing the person’s photograph
  • United States citizenship certificate containing the person’s photograph
  • United States passport

Supplementary ID:

If you cannot provide any of the ID stated above, you would be required to sign a form stating why you were unable to bring the ID, and then you would be permitted to vote as long as you had one of these forms of ID:

  • Valid voter registration certificate
  • Certified birth certificate (must be an original)
  • Copy of or original current utility bill
  • Copy of or original bank statement
  • Copy of or original government check
  • Copy of or original paycheck
  • Copy of or original government document with your name and an address (original required if it contains a photograph)

First, let’s look at the Acceptable ID list. One thing you’ll find in common with most everything in the list is that they are all issued by state entities. The Department of Public Safety covers pretty much everything except the last three items which are awarded to you by the Federal government. This consistency is important because there’s an implied state/federal regulatory process which (in theory) would be consistent. This is why I would personally find school ID unacceptable (by itself). Because the requirement to attend a school is not necessarily consistent across the state, nor are you assured to be a United States citizen if you attend a school. The supplementary ID also seems to be rather fair, but may hurt younger, unemployed individuals if they don’t have a voter registration certificate or a birth certificate.

The left will often consider the requirement of ID to be a kind of ‘Poll Tax’. Poll taxes are illegal (by the 24th Amendment). I don’t really like this argument from the left, mainly because I don’t know of any taxes that are optional. So you have the choice to get a driver’s license. You have the choice to get a carry license or a passport. If you fail to get any of these things and you don’t break the law by driving without license and so on, Uncle Sam will not come knocking on your door. Failing to pay taxes doesn’t come with those same outcomes. When I was working in Fairbanks, I was still considered a Pennsylvania resident. So the automation that took taxes out of my paycheck did not apply properly and when tax season came, I owed the state some $500 for taxes that I never paid. If I had failed to pay those, I would likely have received some unpleasant phone calls and some unfriendly visitors (putting it mildly). So in short, I don’t think the requirement to ID and the fact that some forms of ID cost money can in any way be called a ‘Poll Tax’. However, what I think doesn’t really matter, as I believe that some circuit in NC, Texas, or Kansas(?) ruled that it was.

In response to the ‘Poll Tax’ argument, I’ve often heard conservatives refer to some state ID that you can get for free. Surely if the ID is free it is no longer a tax! Well, I did some searching, and it looks like you can obtain some state identification card To receive it in Pennsylvania you need some forms of identification which for the same reasons I take issue with the supplementary ID for Texas (but I’m sure that can be smoothed out) but it also costs $30. Not even close to free. A Google search for a free state photo ID card often brought up Wisconsin sites. I assume Wisconsin has some form of voter ID law and with November fast approaching, the Winsconsinites want to make sure that they can participate in the process. As far as I can see on the page, it is free. I had suspected that it was because of voter ID laws, but since we also seem to have a requirement of state-issued ID in Pennsylvania, and the Pennsylvania ID was not free, that is not the case. So this “free state ID” argument fails in at least 2% of states, but I would hazard a guess that it fails in a few more. And I refuse to accept this premise of a “free” ID if it isn’t actually free. The ID may be free but the paperwork might not be seems like a poor excuse and a shift of the goalposts. If the entire process isn’t free, then it’s not a free ID.

This post has gotten quite long, so I’m going to split it here. What we’ve seen so far is that it may be unlikely that “free IDs” exist, and that supplementary voter ID may harm younger voters (Perhaps the 18-28 bracket) because they may not necessarily have their name on bills, or they may be unemployed. However, we also make the assertion that requirement to ID is not a tax (despite what the courts have said) because the government does not come knocking on your door if you fail to own a license. We see that if dead people were to vote, their votes are falling well within the margin of error. We see that if someone were to cheat by voting multiple times, it would likely not be by someone pretending to be someone that they’re not. Rather, they would probably take advantage of electronic voting. As such, the requirement to have ID to vote would not prevent voter fraud. However, it may be effective in preventing undocumented individuals from voting, which I think all of us can agree would be a pretty good thing. But is it worth requiring ID? In the next post, we’ll talk about the argument that focuses on DMV availability. 

Artemis Hunt

Voter ID Laws (Part 1)