Tax Policy @ OptimalPortfolio.net

Yesterday the U.S. Supreme Court upheld the Second Amendment right of individuals to keep and bear arms. Gun rights have been slowing eroding since the Bill of Rights was adopted in 1791, of late in San Francisco (2005), Chicago (1981), and Washington D.C. (1976).

Richard M. Daley, mayor of Chicago cries foul, saying they’ll need a bigger budget to fund a larger police force if the populace is armed. I don’t see the connection – the police are rarely on the scene at the moment a crime occurs, they normally show up afterwards to take notes and file a report. If ordinary citizens have guns to shoot robbers, rapists, and other violent criminals at the moment that the crime first takes place, they’ll either be doing themselves a favor by scaring off the perpetrator in the absence of the police (who can’t possibly be omnipresent), or possibly doing the police a favor if they shoot the perpetrator, because the police won’t have to find and arrest the perpetrator after the fact. However the scenario turns out, city mayors will need fewer police, not more. Perhaps the Honorable Mr. Daley is really interested in empire building and pandering to the left wing.

The scarier side of the gun ban in Chicago is that police went door to door in the public housing projects conducting warrantless searches to confiscate guns. San Francisco’s ban also requires that gun owners turn in their guns to comply with the ban. This is the darker side of gun registration. The moment that you tell the government where your assets are, whether they’re guns or a checking account, the possibility of confiscation looms just around the corner. We’re not talking about some rendition of due process where the government serves you papers requiring you cough up the asset or face a judge to explain yourself. They show up at your door, enter forcibly, and take whatever they want. In most cities, it’s a much more serious crime to shoot a police officer than an ordinary citizen. Why should that be? Because it indicates a disregard for authority that deserves more severe punishment? Or, is it possibly that it provides the police with additional leverage against the citizenry they’re ostensibly protecting.

If it weren’t for the musings of Serpico, an obvious madman, we’d have little evidence that police ever acted in anything but the noblest public interest. Any government that passes a law creating special punishments for altercations in which police get killed, maimed, libeled, slandered, or their feelings hurt, clearly has absolutely no understanding of equal protection. Discrimination and abuse of authority are rooted in such class distinctions.

I find myself considering the "Serve and Protect" stenciled on the side of police cars. After they have confiscated all of the weapons in the city except their own, who is going to protect us from the police? It’s the classic path to tyranny – register guns, ban guns, confiscate guns. Then the guys with the remaining guns can do whatever they want. Given that absolute power corrupts absolutely, tyranny is the inevitable outcome at the end of that chain of propaganda and political process.

So… three cheers for the Supreme Court’s recent decision to uphold gun rights. What still disturbs me is that it was only a five-four decision. Nearly half of the United States’ most elite constitutional lawyers don’t see the connection between an armed government of unarmed sheep and the opportunity for tyranny and slaughter. The framers didn’t write the Second Amendment to ensure that citizens would have the right to shoot vermin, defend themselves against bears and wolves, serve fresh venison, or even to defend themselves against pirates, cattle rustlers, and train robbers. The framers feared government. The second amendment was included to ensure that individuals could fight the British wherever they might land (analogous to the Swiss caching machine guns in their basements) and to minimize the potential for U.S. government to become the local embodiment of what they sought independence from in the first place.

Even myopically considering guns as a deterrent to crime, a 50kg woman without a gun is at a disadvantage facing a 100kg man with bad intentions. If she has a gun and he doesn’t, she can deter an impending assault or robbery. Even if they both have guns, the playing field is still closer to level than it was without guns. The only scenario that gun bans serve effectively is the one in which the law abiding victim is unarmed and her criminal assailant has a gun. Gun bans don’t prevent criminals from carrying guns, just law abiding folks. In fact, the mere potential that a victim might be carrying a gun can be a deterrent to an assault. So where is the ban beneficial?

Carrying a gun is heavily regulated, so bearing arms is already effectively lost to history. The danger is that we’re one vote away from a constitutional view that gun ownership is also historically passé. Given that it usually takes about five decades for the court to reconsider a past ruling, I suspect that any future decision striking at the heart of this Second Amendment right will be its death knell.

Further reading:

Bob Levy, the man behind the Supreme Court decision to strike down D.C.’s gun law

The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom by Robert A. Levy and William Mellor

Botched Paramilitary Police Raids

John Dalberg-Acton, originator of the phrase "absolute power corrupts absolutely."

The Fourteenth Amendment was intended to provide broad protection from legislation that denied rights and privileges to segments of society. The particular case that led to its passage was legislation in various southern states denying African Americans the right to vote. It’s unfortunate that the drafters limited the scope of the Amendment to States. As things stand now, any strict constructionist would certainly throw out any attempt to extend the applicability of the Fourteenth Amendment to federal legislation, in effect creating a giant exemption in the equal protection clause for the federal government to slip through unimpeded.

No doubt, this limitation was not lost on anyone at the time – in politics it’s often necessary to draft compromises in order to generate some favorable effect, even if it doesn’t have universal applicability. This is exceedingly unfortunate – had the drafters been a little more visionary or perhaps had the political capital to pass the Amendment without the giant federal loophole, then one could certainly argue that tax treatments that put one class of society at an economic disadvantage to another, violate the equal protection clause in exactly the same way that land ownership as a prerequisite to voting rights denied emancipated slaves the right to vote.

Wouldn’t that be something … the Supreme Court overturning regulations regarding differential tax treatment of earned income and capital as a violation of Equal Protection. Perhaps that’s exactly what’s needed, an Amendment to the Fourteenth Amendment to remove the limitation that it only applies to States. Assuming that such an innocuous Amendment passed, revisiting the Sixteenth Amendment in the light of a broadened Equal Protection clause should have legal traction that even strict constructionists couldn’t ignore.

Now that’s a plan of action…