Wednesday, August 22, 2007

Joe Socrates and DNR Dave Talk about the Second Amendment

Joe has been mulling over DNR regulations constraining his Second Amendment right to self-defense and wonders if DNR Dave can help him understand why the agency is attempting to regulate that right as such.

Joe:
Dave, I've been looking over this regulation which prohibits me from carrying a hand gun, or any gun, while I am bow hunting for deer. I think it raises a lot of questions about the agency's role in my life and, of course, I'm wondering if this is a truly rational policy.

Dave:
No doubt!

Joe:
But in order to start our dialogue, I think we have to lay down a solid foundation about the Second Amendment. By this I simply mean that I hope I won't have to argue with you about whether or not the second amendment protects an individual right. If it did not do so it would be the only right in the entire bill of rights which is not an individual right. The scholarship seems to be predominantly in favor of the conclusion that the Second Amendment is an individual right, and based on that, a federal court in Washington DC, just this last year, has ruled against the District of Columbia, which was petitioning to retain it's anti-gun laws. That was Parker v. District of Columbia. The court actually said in its decision that the Second Amendment protected the individual right of city residents to protect themselves with a fire arm. Perhaps it's worth mentioning that even the New York Times has been professional enough to report that erstwhile liberal scholars, like Harvard Law professor Laurence Tribe, have come to understand that the Second Amendment has always, and was always meant, to protect my individual right to keep and bear arms.

Dave:
Joe! You are insulting me. You don't have talk to me like I am some kind of fascist! I am a firm believer in your individual Second Amendment right to keep and bear arms.

Joe:
My apologies my friend. I should have known. But we haven't talked about this before.

Dave:
You are forgiven. But you WILL have to explain to me why you think that any DNR regulation interferes with that right, or is otherwise irrational. Because I don't see that yet.

Joe:
That is exactly what I intend to do. The taking off point is this blatantly irrational regulation which prohibits me from carrying, say, a hand gun with me while I bow hunt for deer. Where I bow hunt for deer there are wolves, bears, moose, including mean cows with calfs, and a cougar. Frankly I am not very concerned about the wolves and bears, although I have been bluff charged by a black bear and consider them very unpredictable. I am especially wary of the cougar after bloodying up a deer with an arrow and advertising the kill. The cougar has no compunction about stalking either the deer or me for food after tracking to the blood.

Dave:
All right. I hear you. I don't think it's for the DNR to decide whether or not there is risk here. How could we know? I can't know what you might run into out there, including a crazy person. After all, that happened big time in Wisconsin just a few years ago. So I would not try to argue that it's the business of the DNR to deny any need here.

Joe:
Excellent. That is entirely rational of you. You are at least admitting that you cannot guarantee my safety out there. Neither can any government unit. Only I can do that, or at least leverage it, by carrying a gun.

Dave:
Yes, we remain on the same page. The agency isn't God. We won't promise you that you won't need a gun. But, in the case of bow hunting, you have to admit that we have not left you unarmed. You have the bow and arrows.

Joe:
But if you would allow me to kill the cougar with the bow and arrow, why not a gun? In other words, as soon as you've admitted my right to self-defense, why try to constrain the convenience and effectiveness of that defense? The key point here is that you have admitted to my right to self defense? Why inhibit it?

Dave:
Because the gun makes it so easy for you to poach a deer.

Joe:
Ah! So you are in agreement that the gun is in fact a much easier, more effective weapon than the bow! Better for self-defense by far! If it's more powerful and easier to use for the deer, it's obviously very much to be desired for use on the cougar.

Dave:
Hm. Well, I would have to admit that people are rarely good enough with their bows to react quickly and effectively if anything charges them -- let alone a cougar. I guess that's what you are getting at presently. It's probably phony on our part to take the position that the bow actually realizes your right to self-defense in the woods or anywhere else. The gun is the great equalizer. Without one, most people are just NOT going to deal effectively with a bear charge, or a cougar charge, let alone a cow moose trying to stomp them into the dirt. Besides, the gun just makes them more confident and comfortable, which is a good thing in itself.

Joe:
Exactly. When you prohibit the bow hunter from carrying a gun you are effectively taking away, on average, his right to self-defense. But remember, even if I was the best shot in the world with a bow, at short notice, you have already agreed with my right to defend myself, so why choose the weapon for me? If it's okay to kill a charging bear, why not let me do it with my gun?

Dave:
Well, in this case, as I said before, I just don't want it to be easy for you to poach a deer.

Joe:
But out of season, I could poach a deer with the bow, right?

Dave:
Right, but I'm not following you yet.

Joe:
Well, when it comes to poaching, what's the real issue? The poaching itself, or the weapon used?

Dave:
Well, the poaching itself of course.

Joe:
Well, in that case, if you really wanted to make all poaching difficult to engage in, you would not allow people to carry either bows or guns into the field at all out of season. You see what I mean? I am currently allowed to carry my hand gun for protection in the woods just about any time I want, except during bow hunting season if I am bow hunting. Correct?

Dave:
Yes. Well there's another period just before rifle season I think, but not even I understand that regulation, and for the sake of this argument I don't think it matters. Yes, you can carry a gun in the woods during periods when there is no hunting season. And I can see that since you can carry a gun even during bow hunting season, if you do not also have a bow, the idea that we have in any way inhibited the temptation to poach with a gun during bow hunting season, is just nonsense on the face of it. I just thought of that because I remember that I have never ticketed anyone for carrying a shotgun, with slugs on the side for self-protection, or a hand gun for self-protection, while they were grouse hunting. Hm. This inconsistency is so blatent it's embarrasing.

Joe:
I know what you mean! If the argument for not allowing me to carry a gun during bow season is that it makes it more convenient for me to poach, then why would you allow me to carry any weapon, let alone the gun, in the woods, in or out of season? Doesn't this make it equally convenient for me to poach?

Dave:
Yes, it obviously does.

Joe:
So why, if I can carry the gun at all in the woods, supposedly tempting me to poach deer fifty-two weeks out of the year, would we think it was so important to NOT allow me to carry it, in support of my right to self-defense, just during bow hunting season? Remember, I can carry a gun in bow season if I don't also have a bow. Why bother with the bow anyway if I'm going to poach?

Dave stitches his brow in his usual fashion. Suddenly a light goes off in his eyes.

Dave:
Let's slow down. I think that when you're bow hunting, it's even more tempting to use the gun to take the deer.

Joe:
You've got to be kidding.

Dave:
No, I'm not.

Joe:
Dave, are you telling me that you can't predict the obvious reply to this?

Dave:
No I can't.

Joe:
Well that explains why DNR regulations are sometimes so irrational. Just a pure lack of analysis. Just intellectual laziness. Come on Dave -- you predict the reply and prove that the DNR can actually engage intellectually and analyze this junk before it becomes law -- before we have to analyze it for you.

Dave looks down thoughtfully.

Dave:
Okay. I guess on the face of it, our attempt to estimate degrees of temptation that might apply in any given situation would be pretty subjective, maybe even silly, and not worth the constraint it puts on law abiding citizens. I mean, if you have deer coming to your back door every day out of season, and you have your guns right in the house, it's probably even more tempting to down one than when you are sitting in a stand with a gun as well as a bow. The convenience of poaching might be more intense in any number of situations than it is just during bow hunting season. In fact it might be considered more convenient without the cover of bow hunting. But we're not keeping you from your guns in those contexts. If we were consistent in our ambition to manage temptation we would be trying to dictate every minute, every conceivable situation when you could have a gun. That's what anti-gun nuts do.

Joe:
Good work. Does the DNR actually propose to make regulatory law based on subjective generalizations about the temptation to break the law? This isn't the role of government. Your job is to make clear, simple laws. It's not your job to engineer my individual context or the degree of temptation that I might or might not be subject to. It's all too relative and complicated. You manage the law, not my feelings. Not my temptations. The plain fact of the matter is that law abiding citizens are never going to shoot a deer with their guns while bow hunting. And poachers will shoot the deer no matter what, in any number of contexts. Government is not here to fine tune the details of my life so as to engineer lesser degrees of temptation. The whole project is implicitly based on authoritarian, even totalitarian theory. You should not be taking away my second amendment rights just because you have an utterly controversial, non-verifiable theory about how to manage my individual level of temptation. Can you imagine what would happen to our otherwise free society if this approach was applied carte blanche? People would not be allowed to live! Life is brimming with temptations, every day, every hour, to break the rules! The law cannot manage this even in principle and shouldn't try. The project would violate our rights twenty-four hours a day. And that is exactly what this regulation does! It violates my right by trying to manage my temptation. It's political nonsense based on a dangerous legal theory.

Dave:
Obviously the simple law prohibiting poaching and specifying the punishment, is the government's legitimate method, and should be the only method used to repress the poacher's temptation. Law abiding citizens don't even have the temptation. It's not helping therefore to remove the rights of the law-abiding.

Joe:
Exactly. Once again, the regulation under examination seems to be irrational and inconsistent not only with our Second Amendment rights, but with the rest of the law, which allows me to carry a gun in any number of contexts where the temptation to poach might be even more severe for all you know.

Dave:
But wait a second. I just thought of one good reason why we would not want you to carry a gun while bow hunting, which is not some silly, illegitimate attempt to manage your degree of temptation, let alone measure it in the first place. Isn't it easier for us to know that a poaching has taken place out of season, than in season? I mean, during bow hunting season, people can openly transport deer, so it's easier to poach. Out of season, we have the advantage of the poacher not being able to display the game openly. If we see it, we know we got a poacher. In bow hunting season, it's very hard to get evidence of the crime because the poacher could run an arrow through the gun shot wound, or obscure it when dressing the animal out. During bow hunting season, just seeing the animal is not enough to know we have a poacher.

Joe:
Even if there was a forensic advantage -- and I think you'll see there isn't -- would it be worth taking away my Second Amendment rights? In America we are constantly constraining forensic advantages and processes in order to protect people's rights. I mean just the constitutional prohibition on search and seizure is a huge constraint on the forensic process. So even if I thought it was true that there was some meager forensic advantage to the policy I could probably convince most people that it isn't worth it. It simply cannot even in principle trump a right under our system.

But there is no forensic advantage. You said it yourself. It may be easy to obscure a gun shot wound in a deer anyway, during bow hunting season. So what you are saying is that this is a non-operational forensic method in any event. So we're back to just the argument about trying to constrain the temptation. There's no forensic advantage in effectively taking my gun away from me during bow hunting season, because poachers, who will shoot the deer whether or not this regulation is in place, can always obscure the gun shot wound, making it of no forensic advantage to restrict anyone from carrying a gun during bow hunting season. If you are going to allow the bow hunting at all, and therefore the unsuspicious appearance, in public, of deer carcasses, then the prohibition of the guns is not going to result in any added forensic advantage. You have simply given up the forensic advantage by having the season in the first place. During deer hunting seasons, the forensic advantage of any dead deer being evidence in and of itself, disappears. No real forensic advantage is afforded by taking away the guns of law abiding citizen's during bow hunting season.

Dave:
And it occurs to me, that during rifle season, a poacher will shine a deer and shoot it with a gun of course. We'll never know that the deer was actually poached after dark from a purely forensic point of view. I just mean that this is another example of giving up on forensic advantages the moment we choose to allow hunting activity at all. The only effective way to disincent the poacher, if we think it's all about temptation, is to have no hunting seasons at all, because the most obvious and useful evidence of poaching, is always just going to be a dead animal out of season. Even then, it can get difficult.

Joe:
Exactly. So making things overly complicated, or overly restrictive for law abiding people, when there is little or no enhancement of the forensic process, makes no sense at all. And remember, even if it did, a right is a right. A free society pays a huge price in process for freedom. I can only assume that we all agree that it should do so.

Finally Dave, let me ask you this: Why would the DNR want to get involved at all in regulating my gun rights? For example, why even have a regulation that tells me that I CAN carry a handgun in the woods? Why wouldn't I have that right whether or not the DNR says so? In saying so, the DNR clearly implies that it has the right to regulate this. I think the Second Amendment says different. It says I have the right to open carry my gun in the woods no matter what the DNR says. Why would the DNR want to meddle in this by saying anything at all?

Dave:
Well, obviously because it thinks that your right to carry the gun has an impact on the agency's obligation to manage the resources -- like the deer.

Joe:
But now clearly, the regulation asserting my right to carry the hand gun in the woods is there in part as a recognition of my right to do so, correct? I mean it's unlikely that the DNR would have established a regulation that completely prohibited me from carrying a gun in the woods at all except while being thoroughly regulated during hunting seasons. If the DNR had done that, you know what would have happened. The people of Minnesota would have responded, along with the NRA, very, very decisively.

Dave:
I agree.

Joe:
So if the DNR is implicitly recognizing the right with a regulation that permits me to carry the gun, why not simply recognize that it's none of the DNR's business? And what I mean by that, is that the DNR, if it recognizes my Second Amendment rights at all, can keep things simple by not attempting to regulate that right at all -- especially on the feeble theory that it is managing my level of temptation to commit the crime of poaching.

Dave:
Well, it would certainly make things simpler, and clearer, to just keep the DNR out of the business of regulating when people can and cannot have guns in the woods or field. City's obviously have laws that already prohibit the discharge of weapons except in self-defense, and which otherwise support gun ownership. Here again, we may be overreaching. I have to confess, I see no reason for the DNR to be regulating the Second Amendment. All we need to do is articulate clear laws about when it's legal and illegal to take game and in what fashion. If you want to carry a gun during bow season, that should be your business. Just don't use the gun to kill the deer. That's our vested interest. We give up any interest in regulating the right. We stay focused.

Joe:
Exactly. At the end of the day, it's very difficult to identify any value flowing from any approach more complicated than that, which is even remotely worth the interference with the right.

Dave:
As I said earlier Joe. I'm no fascist. I adore the Second Amendment and I believe in your gun rights. So let's work together to reform this regulation.

Joe:
Amen.

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