08 February 2008

Are logical fallacies a good reason to overturn precedent?

Yet another mass shooting has occurred in Missouri. This happened in a city council meeting where there were armed policemen, two of whom were shot before the gunman was killed. Virginia Tech happened in a state with liberal gun laws as well, including shall issue concealed carry.

Now, we have heard that concealed carry would prevent this and I have pointed out that shootings still happen. The Columbine shooters had a shootout with the school cop.

Part of the reason we have this mess is the fake statistics of John Lott and Gary Kleck. Both of which have been discredited, yet the gun lobby trots them out as truth. They even buttress their arguments with statistics which disprove those statistics (i.e., Cook and Ludwig).

I am hearing that the reason that the Supreme Court should find an individual right is that "it is popularly believed this right exists". Now, you can read my posts on argumentum ad populum and that it is a logical fallacy to base the truth of any proposition on the belief that it is popularly held true.

Add in that the "individual right" camp usually misquotes and takes quotes out of context. The arguments also use dicta rather than holdings (e.g. Dred Scot). In particular, they use the dicta in US v. Miller rather than the holding because it goes against their arguments:

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. U.S. v. Miller, 307 U.S. 174 (1939)

Nowhere is the term "self-defence" mentioned in the Second Amendment, or the debates surrounding the ratification of the Constitution. Self-defence is mentioned in similar State guarantees.

It is even sillier to posit that a document which is to keep domestic tranquility providing an institution which is to "execute the laws of the union and suppress insurrections" (the militia) and lists the only crime as being waging war against the United States (article III, Section iii) as allowing for a right to insurrection.

The real Second Amendment issue is not gun laws in Washington, DC, but the fact that National Guardsmen are being pressed into service in Iraq. Or as Justice Douglas said in Adams v. Williams, 407 U.S 143, 150 -51 (1972), which is a supreme court Second Amendment case which misses their list because it shows the contrary point of view:

The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, "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."
There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.
The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id., at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."

So, in a nutshell, there are more reasons that the Supreme Court should hold with the collective right interpretation, which is what the courts have been following for the over 60 years and similar amount of legal opinions.

There is no policy reason to find that a right which is to prevent standing armies should be interpreted as a licence for private ownership of firearms.

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