I keep getting emails from DailyKos encouraging me to write a diary. I started one, but got bogged down in details, so I've decided to recycle some old material as my first diary. As it happens, the topic is even more timely than when I first wrote the comments below: Now pending in the South Carolina legislature is a bill that eliminates the requirement for a permit to carry a concealed weapon.
Reproduced below is an email exchange between me and a South Carolina Policy Council staff member relating to an article on their website, "Why S.C. Needs a Constitutional Carry Law." First, however, some background identifying the context:
Ashley Landess is the president of the South Carolina Policy Council (SCPC), a libertarian think tank, member of the State Policy Network and owner of the news website, The Nerve. I first learned about SCPC when Ashley and Dana Beach of the SC Coastal Conservation League (SCCCL) were speakers at a Nix 526 meeting I attended last summer. An alliance between a libertarian think tank and a conservation group might seem unusual, but SCPC seems to be engaged in a blood feud with mainstream Republicans.
Largely through Ashley's perseverence, Bobby Harrell, former SC Speaker of the House and staunch supporter of the I-526 extension, was forced to resign just before the general election last fall.
But enough of the I-526 saga. There's still a remote chance it will be built, though thankfully, Harrell's resignation makes it less likely.
After the Nix 526 meeting last summer, I started following some of SCPC's stories, which in turn led to my email exchange on their Constitutional carry article. I have edited the original text of my emails slightly to remove email addresses and to add hyperlinks.
-----Original Message-----
From: jkozma
Sent: Wednesday, July 23, 2014 2:56 PM
To: Ashley Landess
Subject: Re: Constitutional carry—our latest on Second Amendment rights
Hi Ashley--
Thanks for keeping me posted on the Policy Council's work. I am more than a little skeptical, however, on both the reasoning and the real motivation behind the SCPC article, "Why S.C. Needs a Constitutional Carry Law."
Opening with a statement about the "plain meaning" of the second amendment is, frankly, bad form. It displays willful ignorance about the meaning of not only the second amendment, but of the Bill of Rights in general. When the Bill of Rights was added to the Constitution, it was intended to apply to the Federal government, not to the states. See, e.g., http://en.wikipedia.org/....
While it is true that the recent case of McDonald v. Chicago held (for the first time) that the second amendment now applies to states, the court clearly recognized that the right of individuals to keep and bear arms is not absolute. In the McDonald case, the regulations in question effectively banned possession of guns outright, even in the home. In invalidating those regulations, the court stated explicitly that its ruling did not address in any way states regulating the use or possession of guns outside the home.
Appeals to the "plain meaning" of constitutional provisions are invariably misguided, since reasonable persons may disagree over specific expressions, especially when they are considered out of context. A scholarly discussion of the plain meaning theory of constitutional interpretation and why it is impractical can be found in the paper "Legal Theory, Legal Interpretation, and Judicial Review", by David O. Brink. (originally published in Moral Theory and Legal Reasoning, Volume 3, edited by Scott Brewer).
The SCPC article goes on to quote statistics on gun violence that purport to show a correlation between decreases in gun violence and states' adoption of "shall-issue" laws. Such a conclusion can easily be reached by cherry-picking the data. The website http://concealedguns.procon.org/ gives arguments on both sides of the debate. In summing up the "Impact of 'Shall-Issue' Laws on Crime," procon.org quotes a 2004 conclusion by the National Research Council:
it is impossible to draw strong conclusions from the existing literature on the causal impact of these laws.
This is the same study cited by the SCPC article for the premise that studies don't show "shall-issue" laws cause an increase in violence. I would call that pretty blatant cherry-picking.
Michael Shermer, in his May 2013 Skeptic column in Scientific American, cites data that contradicts many of the pro-gun arguments. He relates that he himself kept a gun in his home until he studied the data. It's interesting to note that Shermer concludes with a reference to the observation by Steven Pinker that the historical trend of declining violence in the U.S. is mainly due to a general decrease in "private self-help justice" in favor of "legitimate use of force by police and military trained in the proper use of weapons." The SCPC article completely sidesteps such evidence, stating
it's beside the point. The right to carry firearms for self-defense is a constitutional right and can’t be infringed upon simply because a government official foresees accidents happening.
It seems any data supporting the conclusion that gun ownership decreases violence is accepted without question by the SCPC article, but contrary data is dismissed outright because the right of gun ownership is guaranteed by the second amendment. This flies in the face of every Supreme Court decision that has considered the issue. Licensing laws designed to insure that individuals who carry guns are trained to use them appropriately are exactly the sort of allowable limitation on gun ownership contemplated by the court. As the court has said, no right is absolute, even the first amendment right to free speech.
By the way, I personally consider free speech to be our most important constitutional right. I feel especially privileged to have heard William Kunstler speak at Tulane University shortly after his defense of Gregory Lee Johnson in the Texas v. Johnson flag burning case. Does flag burning fit the "plain meaning" of free speech? No other country in the world values or protects the right of free speech more strongly than the U.S. Without the right of free speech, all our other rights are virtually meaningless, since the government would be free to manipulate public opinion through censorship.
Aside from the substantive errors relating to interpretation of the second amendment and data on gun violence, the SCPC article engages in logical arguments that are faulty on their face. Consider this paragraph:
While other factors certainly play a part in reduction in violent crimes, the evidence does support a correlation between South Carolina becoming a shall-issue state and a reduction in violent crimes committed. If greater freedom to carry firearms contributed in a significant way to the reduction of violent crime, it stands to reason that greater freedom in that area would have similarly beneficial effects.
The first sentence acknowledges that other factors may be behind the noted correlation. But the second sentence makes a straw-man argument, suggesting, without a script of evidence, that the "shall-issue" law is a "significant" contributor to reduced violence. In fact, the wording in the second sentence makes it more of a tautology than a straw-man-- "If greater freedom ... [is good], it stands to reason that greater freedom ... [is also good]."
When I heard you speak with Dana Beach at the Nix 526 meeting several weeks ago, I was impressed with how well informed you were about secret meetings and off-the-record statements by officials involved with the I-526 project. I've been similarly impressed with reporting in The Nerve on the investigation of Bobby Harrell's alleged ethics violations. This new article on gun rights, however, makes me wonder if there aren't anonymous donors setting the agenda for SCPC's work. I note that an article posted by The Nerve on May 23, 2012 examines the influence of the American Legislative Exchange Council (ALEC) on SC legislators, and impliedly SCPC has no direct ties to ALEC. However, sourcewatch.org indicates that SCPC has received $1,386,000 in funding from the Roe Foundation between 1998 and 2012. Various sources indicate that other members of SCPC's umbrella organization, the State Policy Network (SPN), have funding ties with ALEC.
Why the interest in second amendment rights? It seems if there were really a belief that relaxed gun laws would make us safer, there would be a much more well-reasoned article justifying that position. As it is, the latest SCPC article on second amendment rights makes the SCPC look like a paid shill for ALEC and the NRA.
John Kozma
I actually got a reply, not from Ashley but Emily Gould, SCPC External Relations Manager. Emily explained that she was responding because Ashley was out of town. I am summarizing what Emily wrote to avoid any possible copyright issues.
Emily did acknowledge my point about the provisions of the Constitution originally applying to the Federal government. However, according to SCPC's "simple approach" and the current applicability of the 2nd amendment to the states via the 14th, it is "fairly self-evident" that "the right of the people to keep and bear arms shall not be infringed," which Emily seemed to imply means states are prohibited from enacting gun control laws.
Emily objected to my claim of cherry-picking, reiterating that neither the 2004 National Academy of Sciences Study nor the 2003 Center for Disease Control Study showed that gun laws reduce violent crime, and emphasizing that these studies, which were directly quoted, were "the most comprehensive, and likely least ideologically motivated " studies of their kind.
Finally, Emily denied that SCPC's donors receive anything "return for their membership to our organization besides knowing that we are an advocate for freedom in this state."
I responded:
Subject: Re: Constitutional carry-- our latest on Second Amendment rights
From: jkozma
Date: 8/14/2014 3:50 PM
To: Emily Gould
Thanks for your reply. I'm impressed that you read my feedback, but I see some of my points may not have been as clear as I thought.
I submit that a "simple" approach to interpreting the Constitution is not possible because it will invariably give rise to either inconsistencies or completely undesired results (or both). Do you mean for the second amendment to allow absolutely no regulation of gun ownership? Even by mentally ill people and convicted criminals? Does it mean that tort law must not be applied to gun ownership, because that would imply that gun owners are held to a legal standard of reasonable care, and such a requirement is, in essence, a government regulation? Noting that the second amendment does not specifically use the term "guns", do you also take a simple, no-exceptions approach to the definition of "arms"? Do you include tanks? Nuclear weapons? Surely you have to draw a line somewhere. And every bit of thought that goes into how and where you draw that line is a retreat from your "simple" approach to interpreting the Constitution.
With regard to my comment about cherry-picking, I use the term in its usual sense. That is, I do not mean that you misquote, but rather that you selectively quote. It is true that the quoted studies found no correlation between gun control measures and reductions in violent crime. Looking specifically at the National Academies study, your article states, "A 2004 study conducted by the National Academy of Sciences 'found no credible evidence' that right-to-carry laws increased violent crime..." The phrase "found no credible evidence" is indeed directly quoted from the study, where it states,
[D]espite a large body of research, the committee found no credible evidence that the passage of right-to-carry laws decreases or increases violent crime...
You have cherry-picked "increase" and overlooked "decrease." To say you don't consider that misleading is a bit disingenuous. Moreover, in reaching its conclusion, the National Academies study examined numerous other studies on both sides of the issue, including those by John Lott reported in his book, More Guns, Less Crime. Yet, your article states,
Studies have consistently shown, furthermore, that having more armed citizens can be a crime deterrent. John Lott, author of More Guns, Less Crime, argues that the introduction of shall-issue concealed weapon permit laws in many states have [sic] lowered violent crime rates, mainly because criminals are deterred by the risk of attacking an armed citizen.
Let me recap:
1. The National Academies study examined the work of John Lott in detail but "found no credible evidence that the passage of right-to-carry laws decreases or increases violent crime."
2. Your article quotes the National Academies study, but omits the part of the conclusion that disagrees with Lott's studies.
3. Elsewhere in your report, you reference Lott to suggest, contrary to the portion of the National Academies study conclusion that you omitted in your quote, that there is a relation between shall-issue laws and reductions in violent crime.
How is that not cherry-picking?
You may by now have gotten the impression that I am a diehard advocate for any and all forms of gun control, but in fact, I'm not. I think concealed carry laws are a good idea, as long as they include training requirements and background checks for all applicants. On the other hand, I support the right of property owners to prohibit concealed weapons on their property. I would also support rules regarding concealed weapons in some specific types of establishments. For example, I think an outright ban on concealed weapons is appropriate for places that serve alcohol. Or for schools, if you are a school employee or authorized visitor with a permit, you can carry your gun on school grounds, but you are strictly liable for its use by you or anyone else, with or without your permission.
There is better, more recent evidence supporting these views that those cited in your article. In particular, see "Priorities for Research to Reduce the Threat of Firearm-Related Violence," published this year by the Institute of Medicine and the National Research Council. This was the report ordered by President Obama in the wake of the Sandy Hook shooting, but it is not just a put-up job for an administration intent on nullifying the second amendment. One of its findings is that guns are used defensively nearly as often, or possibly more often, than in the commission of crimes. That does suggest to me that concealed carry laws may be beneficial, but the conclusion that all regulation should be eliminated is unwarranted.
My argument with the SCPC article is not that it favors individual rights or that it calls for evidence based justification for government regulation. Those are desirable ends. Your article, however, oversimplifies the problem of gun violence. It stakes out a "simple" approach to interpreting the second amendment that ignores established precedent and leaves many unanswered questions about how it would be applied in specific circumstances. It trumpets the fact that concealed carry laws have not been found to increase gun violence as grounds for discounting any evidence that other regulations may be effective at curbing specific types of gun violence. To base policy decisions on such a simplistic view would be highly irresponsible.
And yet, the South Carolina legislature is considering a bill that seems to do just that.