Over the past several weeks, Guns.com has had the pleasure of interviewing two Second Amendment luminaries.
On June 2, it was UCLA Law Professor Eugene Volokh who gave us his insight and expertise on legal issues related to the 2nd Amendment.
And this week, I had the honor of interviewing David Kopel, Research Director of the Independence Institute; an Associate Policy Analyst with the Cato Institute, and adjunct Professor of Advanced Constitutional Law at the University of Denver Sturm College of Law (Prof. Kopel is also a contributing writer to Prof. Volokh’s law blog, ‘The Volokh Conspiracy’).
I’ve shared this story before when I was promoting Prof. Kopel’s new 2nd Amendment textbook, Firearms Law and the Second Amendment: Regulation, Rights and Policy, but it bears repeating. That is, Prof. Kopel first caught my attention when I read an article he wrote, titled “Hitler’s Control: The Lessons of Nazi History,” in the National Review.
In the article, Prof. Kopel summed up, very succinctly, an unavoidable truth about the rise of the Nazi Party, he wrote, “Simply put, if not for gun control, Hitler would not have been able to murder 21 million people.”
I thought to myself, what a very keen observation. I found the article by way of Wikipedia, circa 2008 (the article itself was published in 2003).
Since then, I’ve followed Prof. Kopel and his career and even referenced his testimony before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, the National Right-to-Carry Reciprocity Act of 2011 for a Guns.com article on the likely fate of that house bill, which would create universal concealed carry reciprocity in the U.S.
The point I making is that Prof. Kopel is known for fighting for gun rights both on the printed page and at the highest levels of government. Moreover, he argues in a very cerebral and convincing manner, i.e. no hyperbolic rhetoric, no histrionics, just the facts.
The short of it, I’ve long been a fan of his work – so I was thrilled to have a chance at interviewing him.
One thing I learned about Prof. Kopel is that in addition to being highly educated, he is a very generous person. I’m ashamed to admit that I took advantage of his generosity and barraged him with a boatload of questions on a variety of gun-related topics. To his credit, he answered every question.
Q & A
S.H. Blannelberry: From your perspective, how do you read the 2nd Amendment in relation to gun ownership: an individual right, a limited individual right that applies only in the context of militia service or a collective right that refers to a state government’s right to keep well-regulated militias?
David Kopel: An ordinary individual right, similar to the First Amendment freedom of speech. A right that covers all legitimate uses and possession of arms.
SHB: What does “bear” arms mean, i.e does it literally mean to “carry”?
DK: Yes, it means “carry.” The word “bear” can have the connotation of bearing in a military context, but this is not the sole meaning.
SHB: What is the ideal framework for evaluating whether a gun law or regulation is Constitutional?
DK: Courts are grappling with that issue right now. One plausible approach has been offered by the Seventh Circuit Court of Appeals in Ezell v. Chicago.
First: Decide if something is within the scope of what the Second Amendment protects. For example, armed robbery, and the possession nuclear weapons are not.
Second: If the thing is within the scope of the right, then the rigor of judicial review gets more stringent the closer you get to the core of the right. For example, handgun bans are absolutely forbidden. Restrictions on something close to the core right of self-defense (e.g., Chicago’s ban on firing ranges) would be difficult, but not necessarily impossible, for a government to justify. Lesser restrictions, such as how guns are carried during hunting, would need a lower level of justification.
SHB: Does our 2nd Amendment cover self-defense? In particular, self-defense outside the home? Did the founders and framers intend this right to be included when they drafted it?
DK: Yes and yes. And yes, the right to self-defense outside the home was uncontroversial and widely accepted. Much of the Bill of Rights, including the Second Amendment, affirmed principles that everyone already agreed with.
SHB: What were your thoughts on Jill Lepore’s article, “Battleground America,” in the New Yorker?
DK: The article was very good at reinforcing the prejudices and fears of people who have lots of education but are very narrow-minded. This a core competence of The New Yorker.
SHB: Should self-defense outside the home (some form of carry) be covered under the 2nd Amendment? Or should it be left for the states to decide?
DK: The Fourteenth Amendment was enacted so that states could not infringe national civil rights. The plain intent of the Framers of the Fourteenth Amendment was to protect Second Amendment rights from state infringement. The Second Amendment right includes the right to carry.
SHB: Does ‘May-issue’ pass Constitutional muster (in your opinion, places like NYC, Los Angeles)? ‘No-issue?’ (Chicago, D.C.)?
DK: May Issue as actually administered in NYC or LA is unconstitutional. May Issue as administered in Alabama or Connecticut might be constitutional, if it is functionally equivalent to Shall Issue.
SHB: The National Right-to-Carry Bill (universal CCW reciprocity) is hanging in the balance. Is the Senate likely to pass this bill?
DK: Not this year. Senator Majority Leader Reid does not want to put President Obama on the spot.
SHB: What are your thoughts on universal reciprocity?
DK: A very good idea for states to implement voluntarily. And also well within Congress’s constitutional powers to enact, particularly under section 5 of the 14th Amendment, which gives Congress the power to legislate against state infringements of national civil rights.
Crime & Self-defense Laws
SHB: More guns equals less crime: is this a valid statement?
DK: Not necessarily. More guns in the hands of criminals is dangerous. More guns in the hands of law-abiding citizens can enhance public safety. But “more guns” is too simplistic; if a family that already has seven guns buys two more, the sheer numerical increase may not have much effect on crime reduction. If the additional gun is a handgun that the mother will start carrying legally, that might help the mother be safer from crime.
SHB: Are the new ‘Stand Your Ground’ laws redundant (in other words, are they necessary)?
DK: They are very necessary because they reduce (but do not eliminate) an abusive prosecutor’s ability to persecute a crime victim who lawfully defended herself.
SHB: Are you in favor of SYG laws that offer additional protection for the shooter (no civil recourse for victim’s family, a judge can dismiss the case, etc.)?
DK: A person who perpetrated a violent crime, and was shot by the victim who was acting in lawful self-defense, is not a “victim.” Neither the criminal, nor the criminal’s family ought to be able to sue the lawful self-defender. Well-structured SYG laws should provide for early dismissal of the case by the judge, so that the lawful defender does not have to spend hundreds of thousands of dollars in attorney’s fees to go to trial.
SHB: What do you say to critics of SYG laws who argue that justifiable homicides have spiked since their enactment (have you seen that Guardian article, which argues a 25% increase in justifiable homicides since 2006)?
DK: If it’s justifiable homicide, by definition that means that a crime victim used necessary force to protect herself from a violent felony attacker. To complain that the number of cases of lawful self-defense has increased amounts to saying that more innocent people should have been victimized.
SHB: Do you have any thoughts on the Trayvon Martin / George Zimmerman case?
DK: The mainstream media has been extremely irresponsible in its one-sided and often inaccurate presentation of the facts of the case. Besides that, SYG has nothing to do with the case, under either side’s version of events (check out Prof. Kopel’s article in the Washington Times).
SHB: There’re various reports on the number of gun owners in America (percentage wise). Gallup polls show that Household gun ownership is around 47%, but the General Social Survey says it’s around 32% – which numbers are we to believe?
DK: Very hard to say. The evidence is that a lot of gun owners will not self-disclose to a pollster. Gary Kleck, who has much more statistical expertise than I do, explains in his book Targeting Guns why the GSS figures are probably an underestimate.
SHB: From your perspective, is gun ownership on the rise in America?
DK: The number of guns per capita is definitely increasing.
SHB: Does the Obama Administration pose a measurable threat to our 2nd Amendment rights? If so, in what respect?
DK: The most important damage he has done to the Second Amendment in his first term has been the appointment of two Justices who have long records as opponents of Second Amendment rights. Justice Sotomayor has already voted to overrule Heller. Justice Kagan’s record before she joined the Court offers little reason for optimism. With one more appointment, President Obama could create a Supreme Court majority that would eviscerate the Second Amendment.
SHB: Do you find Romney to be a trustworthy candidate on the 2nd Amendment?
DK: His record as a Governor of Massachusetts was mixed. However, the pool from whom he would choose Supreme Court appointments, and appointments to the lower federal courts, contains a much higher percentage of lawyers and judges who are friendly to the Second Amendment.
SHB: By and large most people have a good opinion of the NRA. But in recent years the NRA has become more politically engaged. Speaking to that point, Exec VP Wayne Lapierre has made some comments in recent months about an Obama “conspiracy to deceive voters and hide his true intentions to destroy the Second Amendment in our country” – do you find his take to be accurate?
DK: There’s certainly been attempt by the Obama administration to deceive the public about his views on gun control. He claims to support the Second Amendment, yet he endorsed the DC and Chicago handgun bans. His record on Second Amendment issues when he was an Illinois State Senator and U.S. Senator was awful. He always voted in favor of gun bans and ammunition bans. So yes, the Obama campaign machine has worked quite hard to deceive the public about his record on guns.
SHB: Follow up, if not, does the NRA run the risk of disenfranchising gun owners who don’t buy into the conspiratorial rhetoric of Lapierre?
DK: If gun owners look at the Obama administration record, including Supreme Court appointments, the Fast & Furious coverup, the attempt to promote gun control with the false claim that American gun stores are responsible for Mexican crime, the administrative imposition of rifle registration in the Southwest, and the import ban on M1 carbines, then thoughtful gun owners would heed LaPierre’s warning about how dangerous a second Obama term could be.
Operation Fast and Furious
SHB: Why the stonewalling by Eric Holder?
DK: Former BATFE Acting Director Kenneth Melson said that the purpose of the coverup was to protect high-ranking political appointees at Holder’s Department of Justice. This seems like a plausible explanation.
SHB: Do you believe senior officials in the DOJ knew about gunrunning well before the information about the flawed tactics were released to the public?
DK: Yes. Whistleblowers have provided the House Oversight Committee with documentary evidence of this.
SHB: Should Holder be held in contempt of Congress? Should he be forced to resign?
DK: Yes. He has refused to provide the House with documents in 13 of the 22 categories required by the House’s October 2011 subpoena, and he has not asserted a plausible legal justification for his refusal. Ever since the Fast and Furious was exposed, the Holder’s DOJ has been providing Congress with claims and justifications which have later been proven to be false. Attorney General Holder has done the opposite of the setting the high ethical standard which is necessary for an Attorney General.
SHB: Additional thoughts on F&F?
DK: If Border Patrol Agent Brian Terry had not been murdered, prompting the BATFE whistleblowers to come forward, the Holder DOJ might still be arranging for thousands more American firearms to be supplied to Mexican drug gangs, and then using the gangs’ violent crimes as a pretext to restrict the Second Amendment rights of law-abiding Americans.
Gun Control ‘Arguments’
SHB: The murder rate in the U.S. per 100,000 population is higher than in most European countries (almost double), isn’t that due to lax gun laws in the U.S.?
DK: Depends on the country. We have a considerably lower murder rate than Russia, which bans handguns, and has much more repressive gun laws than the U.S. Overall, the major violent crime rate in Great Britain is much higher than the United States. Homicide in the U.S. has fallen sharply in the last two decades, even while the number of guns per capita has sharply increased and gun control laws have been relaxed. My book The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of other Democracies? explores the subject in detail.
SHB: Why shouldn’t the ‘gun show loophole’ be closed? That is to say, shouldn’t every gun sale include a background check?
DK: There is no gun show loophole. The laws about the sale of guns are exactly the same wherever the sale takes place. That the gun is sold at a gun show does not exempt the sale from applicable laws—despite the repeated false claims of NYC Mayor Michael Bloomberg.
I’d really like to thank Prof. Kopel for agreeing to do an interview with us. He said he was ‘honored’ to do the interview (maybe the only comment he made that I found questionable). In all honesty, it was a real pleasure, something I hope to do again. If you have a chance, check out his website DaveKopel.com.