Federal law designates any person who uses marijuana, even for medical purposes, as an “unlawful” user of drugs and therefore someone who is not legally eligible to purchase or possess firearms in any context. The federal government has yet to legalize or decriminalize marijuana but has, for the most part, essentially given the green light to states to run legal marijuana programs, recreational and medical, so long as they place reasonable regulations on the market. But the threat of federal action is real and because cannabis is still considered a Schedule 1 drug, the federal government is essentially forcing medical marijuana uses to choose between legally obtaining a firearm or using their legal medication.

A new paper from Ohio State University and Reason Foundation explores how this is a violation of medical marijuana users’ constitutional rights. Helen Sudhoff, the brief’s author, writes:

The federal government prohibits users of Schedule I drugs from purchasing or possessing a firearm. Despite most states having enacted legal medical marijuana programs, marijuana is still federally illegal and designated as a Schedule I substance with no medical value. Individuals who use medical marijuana in accordance with their state’s licensed programs are nevertheless prohibited from purchasing or possessing a firearm under federal law. As such, the onus is placed on medical marijuana patients to either disclose their marijuana use, which disqualifies them from purchasing a firearm and requires they relinquish possession of all firearms, or misrepresent their status as a medical marijuana user, risking fines or imprisonment.

The restrictions that prevent medical marijuana users from using firearms could be leading to injuries and lives lost. A 2012 report by the Obama Administration found that a reasonable estimate for the defensive use of guns per year could be 300,000.  While that number remains controversial and no firm quantitative method for obtaining that number exists, there is no disputing that guns are used defensively and that those uses often prevent injury and death. 

Restricting gun ownership, therefore, restricts a person’s right to self-defense embedded in the 2nd amendment.  In the 2008 Supreme Court case, District of Columbia v. Heller, the high court defended individuals’ right to gun ownership. Heller remains a significant Supreme Court decision because it solidified self-defense as the “core” or “central component” of the Second Amendment. Practically, being able to use a gun for self-defense is the primary purpose of the Second Amendment and any law which infringes upon that right should face scrutiny.

The current legal framework leaves medical marijuana users completely unable to defend themselves in any situation and should be subject to the highest level of court scrutiny. Sudhoff, in the Reason policy brief, argues that the Heller decision rendered unconstitutional the requirement that guns be unloaded, disassembled, or bound by a trigger lock because it “made it impossible for citizens to defend themselves, even in their own homes.” Assembling a gun or removing a trigger lock in a heated moment when the weapon was needed would render it practically useless and therefore infringes upon the core right of self-defense. Yet a requirement that gun owners register their guns was kept constitutional because it did not directly impact an individual’s ability to defend themselves, it simply made gun purchase and ownership a bit more strenuous. 

There is no loophole of any kind in the existing web of drug and gun laws that would allow legal medical marijuana users to legally use or own a gun in any circumstance.  If a medical marijuana patient did use a gun in self-defense, they could still be charged with an offense, which suggests existing laws would fail the test administered by the Heller precedent and should be ruled unconstitutional.

The current legal situation undermines the constitutional rights and potentially risks the health and safety of the 5.4 million medical marijuana users all across the country.  To this point, medical marijuana users have been forced to make a terrible choice of forgoing their prescribed medicine or forgoing their Second Amendment rights.  

With 36 states having legalized medical marijuana, it is far past time for the federal government to rectify this constitutionally flawed situation by recognizing medical marijuana users as lawful citizens who have Second Amendment rights. 

The post Medical marijuana users have Second Amendment rights, deserve the right to self-defense appeared first on Reason Foundation.

The federal government prohibits users of Schedule I drugs from purchasing or possessing a firearm. Despite most states having enacted legal medical marijuana programs, marijuana is still federally illegal and designated as a Schedule I substance with no medical value. Individuals who use medical marijuana in accordance with their state’s licensed programs are nevertheless prohibited from purchasing or possessing a firearm under federal law.¹ As such, the onus is placed on medical marijuana patients to either disclose their marijuana use, which disqualifies them from purchasing a firearm and requires they relinquish possession of all firearms, or misrepresent their status as a medical marijuana user, risking fines or imprisonment.

The following policy brief will address the problems inherent in the federal government’s current regulatory framework for the right to keep and bear arms in the context of medical marijuana use, circumstances that implicate the privilege against self-incrimination, and how to revise the regulatory framework in accordance with the guarantees of the Constitution.

How the Gun Control Act and the Controlled Substances Act Prohibit Medical Marijuana Patients from Purchasing or Possessing A Firearm

The federal government regulates the sale, distribution, and ownership of firearms through the Gun Control Act of 1968 (“Gun Control Act”).² The Gun Control Act regulates the sale of firearms, primarily “to prevent guns from falling into the wrong hands.”³ Under § 922(g) of the Act, the government identifies certain classes of individuals who are prohibited from owning or possessing a firearm, including felons, the mentally ill, and illegal aliens in the United States.⁴ They also identify individuals who are “an unlawful user of or addicted to any controlled substance” as a class of persons wholly prohibited from owning or possessing a firearm.⁵

Controlled substances are classified and defined in the Controlled Substances Act of 1970.⁶ Under the Controlled Substances Act, marijuana is designated as a Schedule I drug.⁷ This designation defines the plant as a “drug…with no currently accepted medical use and a high potential for abuse.”⁸ Since marijuana’s scheduling under the Controlled Substances Act, the federal government has gone on to define marijuana as a cannabis plant with an excess of 0.3% THC, whereas if a cannabis plant contains up to 0.3% THC it is considered a hemp cannabis plant, not marijuana, and is legal to possess and use.⁹

To add to this complexity, the federal government has also authorized the sale of Marinol, a lab-derived, synthetic form of THC, and has designated Marinol as a Schedule III drug. Schedule III drugs are defined as drugs or other substances that have less potential for abuse than substances in Schedules I and II and are currently accepted for medical use in the United States, with abuse of the drug possibly leading to only a moderate or low physical dependence or high psychological dependence.¹⁰ Despite Marinol being lab-derived instead of naturally derived from a marijuana plant, there are no differences between the chemical structures or psychological effects of THC in a marijuana plant and the THC in a Marinol capsule.¹¹ Therefore, the federal government has recognized some medical value associated with the use of THC, contrary to marijuana’s designation as a Schedule I drug.

Notwithstanding marijuana’s federal designation as lacking medical value, 36 states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands have legalized state-licensed medical marijuana programs.¹² Through these programs, individuals may be recommended medical marijuana to aid or cure their ailments or illnesses.¹³

Further, under these programs individuals will not be criminally penalized for merely possessing or using medical marijuana in accordance with their state’s program.¹⁴ However, even though the majority of states recognize medical value of the marijuana plant, the federal government’s designation of marijuana as a Schedule I drug supersedes any state laws indicating otherwise.¹⁵ Consequently, legal state medical marijuana programs are still considered federally illegal, and medical marijuana use is still considered a violation of federal law.¹⁶

When a gun owner uses medical marijuana in accordance with their state’s program, they are nevertheless in violation of the Gun Control Act.¹⁷ Under § 924 of the Gun Control Act, violations of § 922(g) are punishable by a fine and a term of imprisonment up to 10 years.¹⁸ An individual who uses medical marijuana has two opportunities to violate § 922(g): when they purchase a firearm and when they own or possess a firearm. When purchasing a firearm, prospective gun purchasers are required to complete a Firearms Transaction Record – Form 4473 for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”).¹⁹ Prospective gun purchasers are required to self-disclose whether they are “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance[.]”²⁰

The form further warns that “[t]he use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”²¹ However, there is no similar mention of other specific prohibited drugs or substances, including heroin, 3,4-methylenedioxymethamphetamine (“ecstasy”), or lysergic acid diethylamide (“LSD”), which all are mind-altering substances and impact a person’s ability to safely use a firearm.²² Moreover, prospective gun purchasers who self-disclose that they use marijuana in accordance with their state’s legalized medical marijuana programs will be prohibited from purchasing a firearm. ²³

On the other hand, no similar warnings are given to current gun owners who become medical marijuana patients. When an individual is initially prescribed or recommended marijuana, there is no requirement for the treating physician to consider the potential legal impacts of their patients’ marijuana use, much less the implications for their right to keep and bear arms. Rather, the onus is on the gun owner to know they are in violation of the law when consuming a federally scheduled drug and should cease their illegal conduct on their own accord.²⁴

Consequently, under the current federal regulations, if a prospective gun purchaser fails to self-disclose their medical marijuana use while seeking treatment in accordance with their state’s program, or if a current gun owner begins using medical marijuana, they may be subjected to fines or imprisonment imposed under § 924.²⁵

This confusion is amplified for Marinol patients who are either purchasing or possessing a firearm. While nothing in the Gun Control Act prohibits Marinol patients from owning or possessing a firearm, Marinol patients will still produce positive drug tests for marijuana. Therefore, even if a person is legally using Marinol in accordance with their prescription, they nevertheless may be required to demonstrate that they have acted in accordance with federal law.

Moreover, marijuana users have a duty to know they are in violation of § 924 and this duty is distinct from other classes of persons defined under § 922(g). In Rehaif, the Supreme Court considered the scope of the word “knowingly” under § 924(a)(2)—the section that defines the punishments for all categories of persons described in § 922(g).²⁶

The court held that the defendant’s conviction for possession of a firearm as an alien unlawfully in the United States, in violation of § 922(g)(5) and § 922(a)(2), was rendered in error because the government failed to prove both that the defendant knew he possessed a firearm and that he knew he belonged to a relevant category under the Gun Control Act.²⁷

The court recognized that while typically “ignorance of the law is no excuse,” that maxim only applies in circumstances where the defendant has the requisite mental state with respect to the elements of the crime but is unaware of a statute prohibiting their conduct. But, the maxim does not apply where the defendant “has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense.”²⁸

Thus, the Supreme Court held “the word ‘knowingly’ [in § 924(a)(2)] applies both to the defendant’s conduct and to the defendant’s status.”²⁹ So, to convict a defendant under § 924(a)(2), “the Government . . . must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.”³⁰

However, the standard set forth in Rehaif for evaluating knowing violations of § 924 by a person identified in § 922(g) has not been applied to individuals who are “unlawful user[s] of or addicted to any controlled substance,” as defined in § 922(g)(3).³¹

Instead, the Sixth Circuit has held to prosecute under § 922(g)(3), “the Government . . . must prove that defendants knew they were unlawful users of a controlled substance, but not, . . . that they knew unlawful users of controlled substances were prohibited from possessing firearms under federal law.”³²

Consequently, failure to instruct the jury that defendants must have known they were users of a controlled substance in order to be guilty of violating § 922(g)(3) was not in error.³³

In sum, the Gun Control Act prohibits individuals who are “unlawful user[s] of or addicted to any controlled substance,” from owning or possessing a firearm.³⁴ These unlawful users include medical marijuana patients who use marijuana as recommended by their treating physicians, in accordance with their state’s program, which constitutes knowingly using a federally unlawful substance.³⁵ If a person violates the act by using medical marijuana while purchasing or possessing a firearm, they could face fines and a term of imprisonment up to 10 years.³⁶

Full Policy Brief: Blowing Smoke at the Second Amendment

The post Federal law unconstitutionally prohibits medical marijuana users from possessing firearms appeared first on Reason Foundation.

While the federal government has been generally tolerant of state experimentation with cannabis legalization, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has made it clear it will not tolerate mixing cannabis and guns. Thus, firearms dealers will have to abide by the ATF’s rules by denying medical cannabis card holders and anyone convicted of illegal cannabis possession the right to purchase guns. This raised the question: How can firearms dealers obtain medical cannabis information?

The enforcement of this law creates an absurd policy issue as states must register medical cannabis patient data but not recreational marijuana consumer data. As a result, medical cannabis patients are denied gun rights because the state keeps a registry that shows up when firearm background checks are conducted. Recreational users, however, are not required to register to purchase retail cannabis and are therefore untracked. The contradiction is blatant and damaging to medical patients, especially for those using the non-psychoactive CBD compound found in cannabis products that are commonly used to mitigate epileptic seizures.

While states cannot reverse federal government policy, they have a spectrum upon which they can enforce it.  On the more restrictive end of the spectrum, states could require medical cannabis users to surrender all of the guns they currently own as well as forbidding future purchases. Some local governments, like Honolulu, have unsuccessfully attempted this. On the other end of the spectrum, Pennsylvania has crafted an innovative approach centered around database sharing. The state’s Department of Health decided it will no longer share the medical marijuana registry with the state’s law enforcement database, JNET. The practical outcome of this policy is that background checks done by firearms dealers will not identify whether or not the person is a medical marijuana card holder, effectively bypassing the restriction.

The Pennsylvania state police website maintains that it is illegal for citizens to possess both a medical marijuana card and a firearm, meaning that the underlying legal structure has not changed. Pennsylvania’s health agency has simply ceased reporting the marijuana registry to the JNET database, making enforcement of the law much more difficult. Medical patients are still required to have a physical card that law enforcement and firearms dealers could ask for that would invalidate the purchase or possession of a firearm, but no law requires that the card be carried at all times nor that firearms dealers ask for that card at the time of purchase. Pennsylvania is the first state to take this step and could represent a model for other states to follow since there is no explicit legal mandate from the federal government forcing states to share data between agencies.

In conclusion, it is unfortunate that states feel compelled to interrupt federal enforcement, yet it seems likely that the federal government’s stance will be ruled a constitutional violation at some point given state legalization of cannabis. Until then, states should consider their options immediately, as Pennsylvania has done, since criminal penalties for this violation are heavy. Possessing marijuana and a firearm triggers an automatic federal felony, which restricts gun ownership for life alongside the other serious consequences of carrying a felony.  Pennsylvania’s practice of withholding medical marijuana registries from state law enforcement databases may be the most amicable solution to this policy issue until the federal government changes the law.

The post Medical Marijuana Patients Are Being Denied Gun Rights appeared first on Reason Foundation.

Prop 63 would require individuals to pass a background check and obtain a license from the Department of Justice in order to buy ammunition, and stipulates that most ammunition be sold by licensed vendors and reported to the Department of Justice. It requires lost or stolen firearms to be reported to law enforcement and prohibits persons convicted of stealing a firearm from ever possessing firearms. It would bans large capacity magazines in the state and require all current owners of them to dispose of them. It also requires law enforcement to search for and seize any firearm, wherever it may be in the state, owned by a person who commits a crime that would make them ineligible to purchase a new gun.

Fiscal Impact:

Increased state and local court and law enforcement costs, potentially in the tens of millions of dollars annually, related to a new court process for removing firearms from prohibited persons after they are convicted. Potential increase in state costs, not likely to exceed the millions of dollars annually, related to regulating ammunition sales. These costs would likely be offset by fee revenues. Potential net increase in state and local correctional costs, not likely to exceed the low millions of dollars annually, related to changes in firearm and ammunition penalties.

Proponents’ Arguments For:

Proponents of Prop 63 argue that we need to stop gun violence—more than 300 Americans are shot each day, more than 80 of them fatally. Prop 63 will close loopholes to prevent dangerous criminals from obtaining and using deadly weapons.

Prop 63 removes illegal guns from our communities by taking requiring criminals to sell or transfer firearms they own. The Department of Justice identified more than 17,000 felons and other dangerous people with more than 34,000 guns, including more than 1,400 assault weapons.

Prop 63 keeps guns and ammo out of the wrong hands while protecting the rights of law-abiding Californians to own guns for self-defense, hunting and recreation.

Opponents’ Arguments Against:

Opponents argue that Prop 63 will burden law-abiding citizens without keeping violent criminals and terrorists from accessing firearms and ammunition.This is why it is overwhelmingly opposed by the law enforcement community who don’t want to waste resources that could be better used effectively fighting crime.

Prop 63 opponents say the law won’t work. It is incredibly complex and intrusive, putting huge demands on law enforcement to undertake activities not linked to responding to any crime. New York recently abandoned its enforcement of a similar proposal after it was passed, finding that it was impossible to implement and effectively maintain. Prop 63 would divert law enforcement resources for fighting criminals away from the real threat and toward criminalizing lawful gun ownership.

Discussion:

Prop 63 is clearly attempting to work around the failure to overturn the 2^nd Amendment and require licenses to own a gun. Requiring a license to buy and own ammunition accomplishes that same thing, since a gun is unusable without it. Since the 2^nd Amendment establishes the right to keep and bear arms, but does not mention ammunition, this is a workaround for gun control. It will certainly be challenged in court and will face a tough battle. Ammunition is necessary to make gun ownership a meaningful right. Could the law require a license for owning a firing pin and argue that people would still be able to own guns, albeit unable to fire, without a license?

At the same time Prop 63 is a very complex and comprehensive attempt to regulate gun ownership and use. It has 34 pages of details and that is where the devil lies. It has a massive section requiring law enforcement to identify and seize guns from people if convicted of a wide range of crimes, and in a number of instances even if mere evidence of a crime is found—before a trial and conviction occurs. Law enforcement groups can easily see this black hole of time and resources, and hence many of them oppose Prop 63. It also opens a 4^th Amendment Pandora’s box, because in order to find any weapon owned by a suspect, police will have to search anywhere it could be—which is just about anywhere. While legally conducting that search anything they find is chargeable so it is basically a warrantless search for evidence of as-yet-unknown crimes.

Advocates of gun control are so focused on their emotions about guns they consistently ignore the failure of these controls. The fact that New York tried a similar approach and gave it up as unworkable is simply ignored. Likewise, the fact that gun violence is not primarily a problem of legally owned guns and ammunition. The black market for guns in California is extensive, and a 2015 survey of federal prison inmates found that 90% said they obtained weapons illegally.

Prop 63 would clearly violate the 2^nd Amendment right to keep and bear arms with a complex and unworkable nest of new regulations and mandates on law enforcement.

Voter Guide: 2016 California Ballot Initiatives

The post California’s Proposition 63: Background Checks for Ammunition Purchases and Large-Capacity Ammunition Magazine Ban appeared first on Reason Foundation.

– United States Declaration of Independence, July 4, 1776

You might be excused for considering it a bit of a novelty when Siskiyou County voted last month to secede from California. After all, the rural county in the northernmost section of California is not often the topic of the state’s political discourse.

But then the Board of Supervisors in Modoc County, adjacent to Siskiyou County in the northeastern corner of California, followed suit and voted to pursue leaving the state as well. When the secession issue was discussed, only two citizens voiced opposition to the motion. Butte County is scheduled to take up a similar motion in an Oct. 22 meeting, and Lassen County is also considering a vote on secession, although the Redding City Council just voted 3-2 against the idea.

Secession supporters hope to get up to 12 counties in Northern California and Southern Oregon to sign on to create a new state, which would be called Jefferson. The notion has been around for quite a long time, since a similar effort to form the State of Jefferson was launched back in 1941.

The Modoc secession resolution cites as reasons for its intended departure the “increasing tendency by the State of California to exercise legislative and fiscal malfeasance in the form of an illegal fire tax, property rights violations and assaults upon Second Amendment rights, as well as disregard for other inalienable rights of the Citizens of Modoc County,” including excessive regulation of natural resources by state and federal agencies.

In addition, there is simply a general feeling of a lack of representation in Sacramento. “California is essentially ungovernable in its present size,” Jefferson Declaration Committee spokesman Mark Baird told the Redding Record Searchlight. “We lack the representation to address the problems that affect the North State.”

There are plenty of other reasons for taxpayers to be upset about California governance. A new U.S. Census Bureau poverty analysis that takes into account the cost of living found that California has a poverty rate of 23 percent – the highest in the nation. In addition, California has the fifth-highest unemployment rate in the country (8.9 percent), some of the highest taxes, and one of the very worst business climates. Then there is what Gov. Jerry Brown has termed a “wall of debt” in the tens of billions of dollars, and unfunded pension liabilities in the hundreds of billions of dollars, which will serve as a yoke around the necks of both current and future generations.

California’s politics are plagued by gerrymandering, special interests that bleed taxpayers dry and manipulate their lives through heavy-handed regulations and nanny-state laws, and the domination by large cities such as San Francisco and Los Angeles. Just about everyone – from all ends of the political spectrum – believes that California is broken and its political leadership is dysfunctional, as evidenced by the California Legislature’s barely-above-freezing 35 percent approval rating.

It probably shouldn’t be that big of a surprise that the state has become so politically unwieldy, and the California Legislature has grown so unresponsive to the interests of significant portions of the state’s population, that citizens are now looking to form their own governments. They probably figure there’s no way they could do worse than the politicians in Sacramento.

Adam B. Summers is a senior policy analyst at the Reason Foundation. This column originally appeared in the Orange County Register (paid subscription required).

The post If at First You Don’t Secede . . . appeared first on Reason Foundation.

California legislators are striking at the very heart of liberty. Their actions should worry both those who own guns and those who do not.

Senate Bill 53 is the latest in an anti-ammunition effort being led by State Senator Kevin de León (D-Los Angeles). In 2009, then-Assemblyman de León authored Assembly Bill 962, which imposed restrictions on the sale of handgun ammunition and was signed into law by then-Gov. Arnold Schwarzenegger.

In 2011, however, the Fresno Superior Court ruled the bill was “unconstitutionally vague,” so the provisions were never enforced. Now, de León is back with SB53, which would apply to all kinds of ammunition.

The bill says ammunition sellers may not allow consumers access to ammunition in their stores without the assistance of an employee, sellers must obtain a thumbprint and other personal information from purchasers of ammunition and the delivery or transfer of ammunition must take place in a face-to-face transaction (online and mail order sales would be banned).

In addition, SB53 would require anyone wishing to purchase any kind of ammunition to obtain an “ammunition purchase authorization” permit from the state, undergo a background check, and pay a fee every year. The Senate has already passed the bill, which is currently pending in the Assembly.

Of course, this measure won’t keep ammunition out of the hands of criminals any more than the numerous existing gun laws keep guns out of the hands of criminals. By raising the cost of ammunition in California and making it more difficult for law-abiding citizens to acquire it though, SB53 will surely create a sizable black market for out-of-state ammo.

The ammunition bill’s true crime is that it violates every person’s fundamental and inherent right of self-preservation.

Our government was purportedly established to secure our liberties. More and more often, however, it usurps our rights and then licenses portions of them back to us – for an appropriate fee, of course. But our rights do not come from government.

The Declaration of Independence holds it as self-evident truth that one has the rights to life and liberty, and the U.S. Constitution defends the right “to keep and bear arms.” If we have the right to our lives, we must also have the right to defend our lives – by use of a gun, if necessary. And a gun is little more than an expensive paperweight without ammunition.

Can you imagine the Founding Fathers arguing, “People have the right of free speech, but only if they are licensed by the government, obtain a permit from the government to own a printing press, provide their personal information and register such a purchase with the government, and pay an annual fee to the government for the privilege”?

They would consider such a proposal utter nonsense and the antipathy of liberty. Yet this is precisely what California legislators are proposing to do to those who wish to exercise their right of self-defense.

As with government restrictions on gun ownership, the only people who will be harmed by the ammunition restrictions will be law-abiding citizens. The same criminals who are willing and able to acquire their guns illegally will have no hesitation about ignoring even more laws to acquire ammunition.

As a result, honest citizens – gun owners and non-owners alike – will be the losers if this bill becomes law.

Adam B. Summers is a senior policy analyst at the Reason Foundation. This column originally ran in the Orange County Register (paid subscription required).

The post California Goes After Citizens’ Rights With Ammo Licensing Bill appeared first on Reason Foundation.

Democrats differ sharply from independents and Republicans on the issue. Seventy-one percent of Republicans and 60 percent of independents think the tragedy is being politicized, while just 32 percent of Democrats believe so.

Reason-Rupe finds that over half, 51 percent, of Americans say people “should be allowed to own assault weapons,” while 44 percent say people “should be prohibited from owning assault weapons.” Once again there is a substantial political divide: 68 percent of Republicans and 57 percent of independents say assault weapons should be allowed. However, just 33 percent of Democrats agree.

Democrats, who normally count on the youth vote, may be surprised to find that 70 percent of 18-24 year-olds and 58 percent of 25-34 year-olds say “assault weapons should be allowed.” Similarly, Republicans, who usually rely upon the senior vote, will find that 57 percent of 55-64 year-olds and 61 percent of people over the age of 65 say assault weapons should be prohibited.

As Congress gets ready to debate new gun restrictions, just 27 percent of Americans say the federal assault weapons ban that expired in 2004 would’ve helped avoid the tragedy if it were still in place. Over two-thirds, 67 percent, say the ban would not have helped avoid the shooting.

The public is split on what might have helped prevent the Newtown tragedy. When asked what might have helped prevent the shooting, 24 percent proposed better mental health treatment, 19 percent said stricter gun laws, 18 percent stressed better parenting and 17 percent suggested armed guards.

The poll also found little consensus when respondents were asked, open-ended, to actually define an assault weapon. Assault weapons were described as fully automatic machine guns in 29 percent of the responses. Twenty-seven percent of the answers defined assault weapons as any gun that fires rapidly, 23 percent focused on the size of the magazine or clip and 17 percent described them as any gun having the ability to fire multiple rounds.

The Reason-Rupe poll conducted live interviews with 1,000 adults on mobile (500) and landline (500) phones from January 17-21, 2013. The poll’s margin of error is plus or minus 3.8 percent. Princeton Survey Research Associates International executed the nationwide survey.

Of those surveyed, 52 percent approve of the job President Barack Obama is doing and 42 percent disapprove. The public is split over how the president is handling the economy, with 48 percent approving and 47 percent disapproving. Just 17 percent of Americans approve of the job Congress is doing and 74 percent disapprove.

The full poll is online here (.pdf) and additional Reason-Rupe poll resources are available here. This is the latest in a series of Reason-Rupe public opinion surveys dedicated to exploring what Americans really think about government and major issues. This Reason Foundation project is made possible thanks to the generous support of the Arthur N. Rupe Foundation.

Contacts

Emily Ekins, Director of Polling, Reason Foundation, (310) 574-2961
Chris Mitchell, Director of Communications, Reason Foundation, (310) 367-6109

The post Reason-Rupe Poll: 52 Percent of Americans Say Sandy Hook Is Being Exploited for Political Gain appeared first on Reason Foundation.

I’ve never been a fan of waiting periods for gun purchases, but I’m warming to the idea of a pundit’s “Brady Bill.” Some political commentators could use a (voluntary) “cooling-off” period before they start using mass murder to score partisan points.

That could have saved Jennifer Rubin, The Washington Post‘s neoconservative blogger, some embarrassment over the weekend.

On Friday, before much was known about the horrific car-bombing and mass-shooting in Norway, she used the tragedy to argue against modest cuts to the Pentagon’s budget. Trimming the Defense Department’s budget-which accounts for nearly half the world’s military spending-would be “very rash … curbing our ability to defend the United States and our allies in a very dangerous world.” The slaughter in Norway was, she wrote, “a sobering reminder for those who think it’s too expensive to wage a war against jihadists.”

Actually, it’s a sobering reminder to think before you post. Even if Rubin had been right about who carried out the attacks, her argument was a crashing non sequitur, unless you think the United States needs new aircraft carriers to stop car bombings in Oslo.

As it turned out, the murderer was a native Norwegian, a European nationalist with “fiercely anti-Islamic and pro-Israel views,” according to the Jerusalem Post. Whoops!

Yet some of the lefties who ridiculed Rubin this weekend, like the Center for American Progress’ Matt Yglesias, had itchy Twitter fingers in the immediate aftermath of Jared Loughner’s rampage in Tucson last January. Without the slightest evidence, Yglesias and others pointed to a graphic on Sarah Palin’s website-an electoral map with cross hairs-as a possible incitement for Loughner to shoot Rep. Gabrielle Giffords (D-Ariz.).

In this case, The New Republic waited three whole days before publishing a piece indicting “the anti-Islamic ideology that has been spreading like a poison throughout European political culture for at least a decade.”

At this writing, Norwegian authorities haven’t yet ruled out the possibility that Breivik had some collaborators. But whether he’s a lone nut or one of several, the dark night of fascism hardly seems likely to descend across Europe because of a “climate of hate” fostered by European voters who have concerns about immigration from Muslim countries.

I haven’t yet waded through Breivik’s entire 1,500-page online magnum opus (the length itself is a good indication of megalomania-as is the fact that sections of it are cut-and-pasted from the Unabomber’s manifesto). The American Conservative‘s Daniel McCarthy calls it “a plagiarized jumble of nationalism, positivism, Christian symbolism, Unabomber-ism, neoconism, etc. Sound and fury,” likely signifying … not much. It’s likely that the only worthwhile political lesson to be gleaned from the horror of 7/22 is that Norway ought to consider having a longer maximum prison sentence than 21 years.

In general, invoking the ideological meanderings of psychopaths is a stalking horse for narrowing permissible dissent. Former New York Times columnist Frank Rich provided a classic in the genre with his February 2010 piece “The Axis of the Obsessed and Deranged,” in which he railed against the dangerous climate of anti-government rhetoric and warned that a “tax protester” who flew a plane into an Internal Revenue Service building in February may be a dark harbinger of Tea Party terrorism to come. (No such luck, Frank.)

But blaming Sarah Palin for Jared Loughner, or Al Gore for the Unabomber makes about as much sense as blaming Martin Scorsese and Jodie Foster for inciting John Hinckley. There’s little to be learned from the acts of “the obsessed and deranged.” But these incidents ought to teach us not to use tragedy to score partisan points.

Gene Healy is a vice president at the Cato Institute and author of The Cult of the Presidency: America’s Dangerous Devotion to Executive Power (Cato 2008). He is a columnist at the Washington Examiner, where this article originally appeared. Click here to read it at that site.

The post Lessons from Norway’s Horror appeared first on Reason Foundation.

In his 20s, interested in new challenges, Volokh went to law school, starting on a path that would eventually lead to clerkships with U.S. Supreme Court Justice Sandra Day O’Connor and the libertarian-leaning 9th Circuit Judge Alex Kozinski. Since 1994 he has taught law at UCLA. As a professor he has achieved not just a strong reputation among his peers, thanks to his scholarship on subjects ranging from cyberspace law to the Second Amendment, but a considerable following outside the legal profession as well, thanks to The Volokh Conspiracy, a consistently interesting website he launched in 2002.

(It was originally called The Volokh Brothers, adopting its present name after the roster of bloggers extended beyond Eugene and his sibling Sasha.) On their blog, Volokh and his collaborators, most of whom share his generally libertarian orientation, cover a wide range of legal and political issues, from the Supreme Court to the Middle East.

reason.tv producer Ted Balaker sat down with Volokh in December for a wide-ranging discussion about the state of civil liberties in the United States today. For a video version of the interview, go to reason.tv/video/show/eugene-volokh.

reason: Do threats to free speech these days come mostly from the left or from the right?

Eugene Volokh: There are some of each kind. There are also quite a few that come from no side at all. They come from government officials who are busy pursuing whatever goals they might have and just pay no attention to free speech. Even on issues where you’d think there might be mostly left-wing attempts to restrict speech, such as speech that’s allegedly racist or allegedly biased against particular religions, if you look at the polls, it turns out that liberals and conservatives, Democrats and Republicans, have pretty much the same percentages supporting speech and supporting restrictions.

Likewise, if you look at judges, especially Supreme Court justices, the ones who take a pretty broad view of free speech come from both the left and the right. The recently retired Justice Souter on the moderate left, and Justice Kennedy and Justice Thomas on the center-right and the right, all take a very broad view of free speech. On the other hand, justices who have a narrower view of free speech have also come from the left and the right. Chief Justice Rehnquist and Justice O’Connor took a relatively narrow view, still fairly broad but relatively narrow compared to the other justices. But so does Justice Breyer, who was a Clinton appointee and a moderate liberal.

It does turn out, though, that if you look not at the voters or the justices but at the backers-the intellectual, academic, and institutional backers of some restrictions-there is something of a liberal-conservative divide. For example, campus speech codes seem to be backed by a combination of mostly liberal university administrators and professors, based partly on a nonpolitical desire to suppress stuff that causes a mess and causes a fuss. This isn’t to say that most liberals support campus speech codes, but most supporters of campus speech codes are liberals.

There are also attempts to restrict speech from the right, including speech with sexual themes. Generally speaking, it’s more conservatives than liberals who favor giving government the broad right to fire government employees for their speech, including whistleblowing speech. So it depends on the particular controversy.

Let me give an example of something that people haven’t much noticed. In child custody cases, when courts decide which parent gets custody, the standard is the best interests of the child. And there are quite a few cases in which the judge says, more or less, “This parent is more religious than the other parent, and it’s in the best interests of the child to be raised in a more religious environment. Therefore we’re going to give custody to the more religious parent.” Or sometimes, “We’re going to bar this parent from saying something that we think is against the child’s best interest”-bar a parent from saying racist things, or bar a parent from saying pro-gay rights things, or bar a parent from saying anti-gay things, especially when the other parent turns out to be a lesbian.

You might say, “Well, it’s conservatives who are trying to suppress atheist speech, and it’s liberals who are trying to suppress, say, anti-gay speech.” But what really seems to be going on is that judges say: “All we care about is this legal standard, best interests of the child. Free speech, religious freedom, separation of church and state-we’re not going to pay any attention to any of that. We’re just fixated on our daily job, which is to apply this standard.” And I think that’s true with regard to a lot of speech restrictions. It’s often government officials, whether judges or prosecutors or administrative officials, who just don’t pay any attention to free speech. It’s not about politics to them. It’s about getting the things they want done notwithstanding any constitutional constraints.

reason: As Americans, we fancy ourselves defenders of free speech, regardless of whether we personally find it offensive. It sounds like we’re not quite living up to that standard. How well are we doing?

Volokh: I think most Americans support free speech. They just have different visions of what speech should be free. I think even libertarians recognize certain kinds of speech ought to be restrictable-death threats, for example. And one can support free speech but take a narrower view or a broader view. If you look at the views of American citizens to the extent that they’re polled on these subjects, it turns out that there’s pretty broad support for protecting even speech that is seen as extremist, racist, or harshly anti-religious. There’s broad support for protecting it. There’s also broad support for restricting it.

reason: Would you say the First Amendment enjoys more popular support and more real-world protection than other amendments in the Bill of Rights?

Volokh: It’s very hard to compare the relative force of various constitutional amendments, in part because they’re written in different ways. Many people say, “The Fourth Amendment is not being enforced enough.” But the Fourth Amendment does not prohibit searches and seizures; it prohibits unreasonable searches and seizures. Built into the Fourth Amendment is the notion that some searches and seizures are permissible, and lines need to be drawn between what’s reasonable and what’s unreasonable. Many judges take a view that a wide range of searches and seizures are reasonable. So is the Fourth Amendment being enforced less strictly than the First Amendment? It’s hard to say. It may just be that it’s written less strictly, so it ends up authorizing a lot of government action.

The right to a jury trial is very strongly enforced. If you’re being prosecuted for a criminal offense, and the maximum sentence for that offense is more than six months, you are entitled to a trial by jury. There’s no balancing test; the government can’t say, “We’ve got a compelling interest in not giving you a trial by jury.” At the same time, the right has some built-in limitations. For petty offenses, you don’t get a right to a trial by jury. That’s not in the text of the Constitution, but it’s been understood as a historical exception.

Likewise, if you’re being detained as an enemy combatant, there has been debate about what kind of rights you have, but you clearly don’t have a constitutional right to a standard, civilian criminal jury trial, and you never have. With a lot of these rights, there is a core that is very well protected, but the core might be relatively small; there may be a lot of things that look on their face like they’d be covered by the text but aren’t. It’s very hard to do comparisons between rights that are very different, have very different histories, have very different texts, and have different social functions.

reason: If you had to choose one or two of the biggest threats to free speech these days, what would they be?

Volokh: One is the notion of hostile environment harassment: that people expressing their views, people making jokes, sometimes people posting sexually themed material, sometimes people making political statements or religious proselytizing, can become legally punishable discrimination simply because it is-and I’m quoting here the very vague language of the law-“severe or pervasive enough to create a hostile, abusive, or offensive environment” based on race, religion, sex, sexual orientation, and the like. This could be in employment, in education, in public accommodations. There is the limitation that it can support a lawsuit only if it creates a hostile environment for a reasonable person, but it’s obviously a very vague and very broad standard.

This rule has become essentially a nationwide speech code for America’s workplaces. The code is not just imposed by the private property owners who run the workplaces, who of course are entitled to restrict speech on their property and by their employees. Rather, it is imposed by the government; employers are being coerced into suppressing certain kinds of speech by fear of massive liability. And once that theory is recognized in the workplace, it becomes applicable in other places as well. The latest generation of campus speech codes is based on the theory that if students or professors say things that in the aggregate are offensive enough to people based on certain attributes that speech stops being constitutionally protected speech and magically becomes the conduct of discrimination, which is legally punishable.

You also see cases where the same logic is applied to public accommodations. So there was a case several years ago in Boston, where a bar was found liable for having an allegedly racist display as part of its decor and allowing allegedly racist political statements by the bartender. I think that’s a very dangerous thing, partly because it applies to a wide range of speech, including clearly political speech, speech that obviously should be constitutionally protected. The standards are so vague and potentially so broad that it can very easily lead to back-door suppression of speech that we’d always assumed was constitutionally protected.

There was a lawsuit-which fortunately was rejected, but it took a trip to the California Supreme Court to do it-against Warner Brothers for allowing sexually themed speech in the writers’ office for the television show Friends. A writer’s assistant found this created a sexually hostile environment for her because there were all these sexually themed and occasionally misogynistic comments being made. And one might say, well, of course it’s constitutionally protected, but it’s still a workplace. We say it’s constitutionally protected even though it’s in the workplace because speech should be protected from government suppression everywhere.

reason: That standard would shut down most Hollywood scriptwriting meetings.

Volokh: That’s right. But even if you get out of this zone of what some might call communicative workplaces -workplaces that are all about the creation of speech -still for most people, whether they work at a factory, at a coffee shop, or wherever else, that’s where they spend a third of their hours. That’s where they have conversations with their coworkers. For many people that’s the most they have by way of conversation outside of their family. And here the government is coming in and-indirectly but quite clearly, through the coercive force of the threat of massive liability-suppressing speech because it conveys allegedly offensive viewpoints.

reason: Before fingerprinting, cops took mug shots as a way of identifying us, and until recently they were pretty reluctant to release mug shots unless there was a Freedom of Information Act request. These days, cops are not only giving them out; they’re placing mug shots on their own websites as a way of shaming johns, prostitutes, shoplifters, and so on. There’s also this cottage industry that’s emerging of local tabloid newspapers that point out who the wrongdoers are in the local community. What do you make of this? Is there tension between free speech on the one hand and protection of due process on the other?

Volokh: The government has no legal obligation to release mug shots. If the government were to say, “We’re not going to release any more mug shots, except in unusual circumstances-say, when there’s a manhunt going on and we want people to help identify somebody,” that wouldn’t violate anyone’s free speech rights. The government can just say, “Hey, we took the photos, they’re our property, and we’re not going to hand them out to you.” At the same time, while people may have a privacy right to be free from unreasonable searches and seizures, they have no constitutional privacy right in their pictures. The government generally can put out pictures of people. So it’s hard to figure out from first principles what the right answer is in this kind of situation.

The government has legitimate reasons for releasing photographs. Often it does help people figure out, for example, if somebody was arrested for some robbery and maybe it was somebody who robbed them before. Sometimes if it’s announced that John Smith is arrested for such and such, seeing this picture may help you realize it’s not the John Smith you work with but a completely different John Smith.

At the same time, releasing the mug shot might inflict a kind of punishment before conviction. It might ruin people’s reputations and cause them undue embarrassment even before there’s any trial. Perhaps they’re vindicated at trial, but all that people remember is their mug shot on the evening news. That’s a danger that we have had with our open criminal justice system even before photographs, simply because names were always released. But it’s a danger that’s exacerbated now.

reason: A Chicago artist was protesting a local ordinance that banned selling art on the street. He knew he was going to be arrested for selling his art, so he recorded what happened. He was charged with felony eavesdropping. Under what circumstances can you record someone in a public space?

Volokh: This is what I call the dark side of privacy laws. Everyone likes the idea of privacy, and eavesdropping sounds bad. But legislatures often target it without sufficient attention to free speech rights. In some states, the law essentially bars anybody from recording conversations without the permission of all the parties.

Those laws apply even when the conversations are in a public place, even when they’re on a nonconfidential matter, even when one of the people in the conversation is doing the recording, and even when the conversation is with government officials, including police officers. The Massachusetts Supreme Judicial Court rejected a First Amendment challenge to a criminal prosecution in such a case several years ago. I think that’s very bad. I think it’s very important that we be able to gather information this way, especially concerning interactions with police officers but also in other situations, such as when we’re being blackmailed or something along those lines, where the recording could be our only way of clearing ourselves.

The law varies a lot from jurisdiction to jurisdiction. In many states, it’s OK to record a conversation so long as one party agrees. So if you’re talking to someone and you want it recorded, you can record it without getting the other person’s permission. In some states, you need the permission of all the parties when the conversation is confidential communication or private communication, and often the law is not clear about what that means. In a few states, you need the permission of all the parties without any such qualifier.

In those states, if you are recording a conversation with a police officer who is trying to arrest you because you want to prove that it’s a bad arrest, that itself is a crime. I think that’s going way too far. If you’re going to have laws that restrict recording even when one party agrees, and I’m not sure we should have such laws, you need to have some pretty clear exceptions for recording things in which nobody has any legitimate privacy interest. Police officers have no legitimate privacy interests in their conversations with citizens, and in those cases there is a very important interest in gathering information.

reason: We have a series at reason.tv called Nanny of the Month. One month we picked the Alabama Supreme Court for upholding a state ban on selling sex toys. You said we shouldn’t have done that. Why?

Volokh: As I understand it, when you say “nanny,” you mean somebody who is restricting people’s liberty, supposedly for their own good, but without any attention to what they themselves want. I think that it’s right to take to task government officials who act as nannies in this way. It’s the job of legislators to impose only those legal rules that are genuinely necessary to protect individual liberty or some very important social interest.

But that’s not the job of judges. The job of judges is to follow the law and to enforce the law. It’s far from clear to me that the Alabama Constitution and the U.S. Constitution protect the right to have sex toys. One could argue that they should, but it’s perfectly reasonable for a court to say: “Look, there’s nothing in our Constitution that interferes with legislative judgment here. This could be a silly law, it could be an illiberal law, it could be a nanny law, but it’s not our job to act as protectors against the nannies. The protectors against the nannies should be other legislators and the voters. If you don’t like the nannies in the legislature, vote them out. Our job is to strike down only those laws that violate the Constitution, not the laws that we simply think are unreasonable or excessive or too nannyish.”

reason: So by definition, judges can’t be nannies?

Volokh: Judges can be nannies when it comes to creating legal rules. Historically in the Anglo-American legal system, many basic legal rules of contract, of property law, of tort law, even of criminal law, have been created by judges. The earliest restrictions on private sexual contact were actually judge-made rules. Likewise, a lot of tort law rules are judge-made rules. So judges could be nannies if they set up tort law rules that are unduly paternalistic-for example, that protect people so much from ordinary hazards that they drive useful products off the market or interfere with private actions in an excessive way.

But there the judges are themselves making the rules. When somebody is making the rules, you can ask if they’re being a nanny or not. When somebody’s deciding whether somebody else is authorized to make the rules, the question is different. It becomes what the proper role is for the judiciary, as opposed to the legislature, in making these rules.

reason: What are the implications of the 2008 Supreme Court case District of Columbia v. Heller for gun control?

Volokh: The Supreme Court held in D.C. v. Heller that the Second Amendment secures, among other things, an individual right to keep and bear arms, including handguns, in self-defense. But 44 state constitutions have a specifically guaranteed right to keep and bear arms, and at least 40 of them have been interpreted as securing an individual right to keep and bear arms in self-defense. The state courts in those states have applied those provisions, so we have a pretty good idea of what happens in court when there’s no dispute about whether there’s an individual right to keep and bear arms in self-defense.

The courts in those states strike down the most aggressive and restrictive gun control laws and uphold a great many other laws that are seen as mere regulations rather than prohibitions on keeping and bearing arms. That’s been true for almost 200 years, ever since state supreme courts in the early 1800s started upholding bans on concealed carry of guns. Those were the first in a major wave of gun control laws in America.

So what I think will happen, even if the Supreme Court holds in the coming Chicago case that the right to keep and bear arms applies to state and local governments, is that if there’s a total gun ban or total handgun ban, that will be struck down. Possibly some other laws will be overturned as well: maybe total bans on carrying guns, maybe bans on possessing guns in public housing complexes.

But bans on so-called assault weapons, various waiting period laws, licensing and registration laws-I think courts are going to say those are permissible regulations rather than total prohibitions. I think a lot of these laws are pretty foolish. The bans on so-called assault weapons are a classic example-even some of the pro-gun control forces have acknowledged that such laws have virtually no effect on crime because they ban guns based on aesthetic features rather than any practical difference between the banned guns and allowed guns. But generally speaking courts will leave legislatures with a great deal of discretion in enacting those laws so long as they don’t substantially burden the ability to own some useful guns for self-defense purposes.

reason: Does media coverage have a big impact on how people view guns?

Volokh: Media coverage of guns is skewed in various ways. At many media outlets, the people who write about the subject are somewhat anti-gun, and as a result the coverage ends up being anti-gun. Sometimes they are just ignorant of basic distinctions. You occasionally hear talk about assault weapons that implies they are fully automatic weapons, which they are not. So there are institutional biases. There is also a news bias: It’s not news if a gun is used the way most guns are used, which is somebody breaks into somebody else’s home, the homeowner takes out a shotgun and pumps it, and the burglar hears that familiar sound and runs away. That’s a very common and beneficial use of a gun, but it’s not going to make the news.

At the same time, entertainment is biased, whether intentionally or not, in favor of guns. Guns are glamorous things in television programs and in movies. My sense is also that people who use guns in movies use them much more successfully than guns are actually used in real life. The fact is that, especially under combat conditions, it is very hard to hit somebody the first time around. Even trained police officers, when they actually get into a shootout (which for most police officers is a very rare thing), end up missing most of the time. I don’t think that television and movies accurately capture that fact. As a result, they make guns seem more effective than they actually are. So it could be that these biases counteract each other to some extent.

Whether or not they do, it is quite clear that despite all the hopes of the gun control movement that coverage of mass shooting incidents would lead to a groundswell of support for gun control, it hasn’t happened. Despite these high-profile incidents, support for gun control has declined rather than increased.

reason: Do you agree with the “more guns, less crime” thesis?

Volokh: It’s very hard to tell what the precise effects are of allowing more law-abiding citizens to get concealed carry licenses. It is pretty clear that the overwhelming majority of people who get concealed carry licenses use their guns responsibly. It is quite clear that we have not seen any massive increase in crime, even though we have shifted from a situation where about 10 states allowed nearly every law-abiding adult to get a concealed carry license to a situation where 40 states do. So the fears of gun control proponents certainly have not materialized.

On the other hand, it’s very hard to tell whether nondiscretionary license policies lead to a small but measurable increase in crime, a small but measurable decrease in crime, or neither. There are competing arguments, competing data sets, competing models. I think that’s something there needs to be more research on. But it is pretty clear that the increase in legal concealed carry has not had massive effects one way or the other.

In that kind of situation, we should err on the side of liberty: People should be free to have the weapons that are necessary to effectively defend themselves.

Bonus Reason.tv Video: Watch Eugene Volokh discuss free speech and guns with Reason.tv’s Ted Balaker.

The post Free Speech and Guns appeared first on Reason Foundation.

Two days later, before practice at Washington, D.C.’s Verizon Center, Arenas placed four unloaded handguns on the chair in front of Crittenton’s cubicle in the team’s locker room with a note that read, “PICK 1.”

“You said you were going to shoot me,” Arenas reminded Crittenton. “So pick one.” Crittenton then flung one of the tendered guns across the floor and withdrew from his backpack one of his own (whether it was loaded is unclear), which he displayed for Arenas, holding it “below his waist and pointed downward,” according to the government’s proffer of facts. Any tension quickly dissipated, and soon the two were bantering together in the Jacuzzi.

That’s what Arenas did. Here are some things he did not do:

• hurt anyone;
• fire a gun;
• own illegal firearms;
• bring a loaded gun into D.C. or the Wizards’ locker room, let alone brandish one in a threatening manner. He didn’t even own any ammunition for the weapons in question.

On January 15, 2010, Arenas pled guilty to one felony count of carrying a pistol without a license in the District of Columbia, punishable by up to a $5,000 fine and five years in jail. On March 26, D.C. Superior Court Judge Robert Morin sentenced the player to 30 days in a halfway house, two years of probation, 400 hours of community service, and a $5,000 fine.

The judge got it about right-but only after three months of overkill from the other featured performers in the Arenas morality play: the overreaching prosecutors who pressed to lock him up, the tabloid heckler who mousetrapped the player with reckless smears, and the NBA commissioner who peremptorily wiped out Arenas’ season.

You don’t have to support gun control laws to see that Arenas committed a stupid act that could have ended far worse than it did. But you don’t have to support gun rights to see that he has paid a price grossly disproportionate to his mistake.

The Law After Heller

Arenas’ crime was jurisdictionally specific. His acts would likely have been legal at his home in Virginia, where no license is required to own a handgun and concealed-carry permits are issued based on criteria that Arenas seems to have satisfied. Even in D.C., if Arenas had been found with guns in his home or “place of business,” it would have been only a misdemeanor, punishable by a $1,000 fine and/or up to a year in jail. (Counterintuitively, the Wizards’ locker room did not qualify as Arenas’ “place of business,” which D.C. law defines as the place where the owner of an enterprise transacts its affairs.)

In 2008 the Supreme Court’s landmark ruling in District of Columbia v. Heller struck at the heart of D.C.’s blanket ban on gun possession. Explicitly recognizing an individual right to keep handguns in the home for self-defense, the majority opinion sowed doubt, among the general public and constitutional scholars alike, about the continuing viability and extent of the city’s highly restrictive gun laws. Arenas says he mistakenly believed that as a result of the decision he no longer needed a license to carry unloaded handguns in the city, when in fact D.C.’s post-Heller regulations continued to prohibit public possession of firearms in most situations. In an unusually broad 26-page sentencing memo making their case for a prison sentence, prosecutors ridiculed this “feigned ignorance of the law excuse,” noting that Arenas had attended a compulsory November 2009 briefing in which law enforcement officials explained D.C. gun laws to Wizards players.

It’s hard to evaluate the efficacy of the briefing-did it, for example, directly address the issue of unloaded guns?-without access to the unidentified (and un-cross-examined) players the prosecution cited as witnesses. But if the new gun rules were as easily mastered and non-controversial as the prosecution implied, why was a special briefing needed to explain them? The Heller ruling and the D.C. government’s recalcitrant response to it left the city’s comprehensive gun ban suspended in a confused and contentious atmosphere of constitutional limbo. Arenas’ misunderstanding of the law could have been feigned-who knows?-but in this shifting legal environment there is surely no reason to assume that it must have been.

There is wide agreement that the D.C. Council responded to the ruling with a minimalist compliance strategy designed to buy time until the Heller majority is supplanted by one more friendly to gun control. By creating formidable bureaucratic obstacles to gun ownership, George Mason law professor Ilya Somin wrote in a 2008 Legal Times article, the District’s new regulations “eviscerate the individual Second Amendment right that the Supreme Court has recognized.”

D.C. authorities argue that “the right to keep and bear arms” recognized in Heller does not include the right to have guns outside the home. But in keeping with its originalist approach to constitutional interpretation, the Heller majority looked for the meaning of “the right to keep and bear arms” in the ordinary usage of the Framers’ day, when “to bear” meant “to carry.” In a 2008 Syracuse Law Review article, Cornell law professor Michael C. Dorf wondered why the Framers would have crafted a constitutional amendment to protect the right of citizens to carry firearms from one room to another.

Writing for the majority in Heller, Justice Antonin Scalia sketched out a range of permissible exceptions to Second Amendment rights, including “laws forbidding the carrying of firearms in sensitive places such as schools and public buildings.” But “if it were possible for the government to ban all firearms possession outside the home, there would be little point in singling out ‘sensitive places,’ ” wrote Dorf. “There could be exceptions to the right to public carriage, but a complete ban on carrying firearms outside the home would appear to violate the Second Amendment as understood in Heller.” (Dorf isn’t grinding an ideological axe here. He personally favors trying to limit Second Amendment rights to possession within the home.)

Taken at face value, the Supreme Court’s ruling opened the door to a broad, though not unlimited, right to carry handguns in the District of Columbia, inside and outside the home. And why would Arenas have taken it any other way? Like many of us, he had probably heard or read something about the widely publicized Heller decision-and little or nothing about the inside-page story of the D.C. government’s response. Now there may be a broad public understanding of the District’s new gun rules. But if so, that’s largely thanks to Arenas’ own highly publicized arrest and prosecution.

Gilbert Arenas was just what D.C. needed, a celebrity athlete with all the requisite signaling power to drown out the Court’s message with one of its own: Heller, schmeller. If we catch you carrying a gun, we’ll put you behind bars.

Overreaching Prosecutors

It’s a tall order to win a jail sentence for an admired member of the community with no violent prior offenses after nothing more than a nonviolent, jurisdiction-specific offense under an ambiguously worded law in a shifting legal environment. It’s less of a reach if he’s a bullying, gun-slinging sorehead laughing at his crime with all the arrogance we’ve come to loathe in the bubble world of sports superstardom. That wasn’t Arenas’ reputation, but perhaps that could be fixed.

In recommending a jail sentence for the single count of carrying a handgun without a license, prosecutors labored to paint Arenas as an unremorseful offender deceitfully downplaying his guilt. To do this, they pounced on an ill-advised attempt by Arenas to take the fall for his teammate. Early on in the Wizards’ own investigation of the locker room incident, Arenas briefly changed an element of his story. In an effort to shield Crittenton-a younger, more vulnerable player-from punishment, Arenas texted a team official: “I’ll take full responsibility for everything. I had the guns and nobody else. Javaris wasn’t even in the locker room when I showed them.”

The altered story, soon abandoned, would not have lessened Arenas’ own criminal exposure. He had immediately admitted bringing guns into the locker room and never denied it through multiple investigations. Yet the prosecution argued that in attempting to assume sole rather than shared blame for the incident, Arenas was trying to evade responsibility.

In the prosecution’s theory of the case, Arenas was the Wizards’ alpha male, bent on preserving his supremacy against all rivals. Accordingly, his actions in the locker room were part of a dangerous, darkly motivated plan to intimidate an upstart benchwarmer. In stubbornly insisting the incident was no more than a “misguided prank,” the prosecutors claimed, Arenas was refusing to own up to the seriousness of his crime. Because the act was premeditated, they argued, it must not have been a prank-as if the two concepts are mutually exclusive.

Nor, apparently, can pranks be susceptible to misinterpretation. Although there “may have” been evidence (as the prosecution’s grudging formulation had it) that Arenas (among others) was laughing during both the initial verbal sparring over a card game and the later locker room incident, he could not have been joking because some witnesses took his threats literally and Crittenton felt “endangered” in the locker room. “They did not take it as a joke because it was not a joke,” the prosecution concluded.

But chances are witnesses did not take it as a joke precisely because it was. Misdirection-induced misunderstanding-is the essence of a gag. A practical joke briefly sells its victim a false reality, often one that provokes temporary confusion, stress, and even fear, before bringing relief with the reveal: Ha ha, they weren’t loaded. Clowns have long understood the uses of instantaneous, involuntary stress aroused by the form of a gun. Hence the gag gun familiar from vaudeville acts: When fired, it ejects a banner that says, “Bang!”

Arenas’ guns, though unloaded, were real, not fake. The illusion was too convincing. When the prosecution says “it was not a joke,” the argument rings true at first because we recognize that the prank was “no laughing matter.” But the phrase “no laughing matter” is not typically applied to, say, divorce proceedings, sick children, or funerals. It’s a term of rebuke reserved for inappropriate jokes, pranks, or laughter.

The worst thing about what Gilbert Arenas did is that he was joking. The prank’s main social harm lay in the message it sent: that guns are harmless props to be toyed with while clowning among friends. Those most apt to use guns in imaginary play are children, who don’t always appreciate the difference between real and fake, locked and unlocked, loaded and unloaded. Children idolize professional athletes. In its pointless obsession with proving Arenas wasn’t joking, the government wasted its best opportunity to salvage from this sorry affair an instructive moral for those most in need of moral instruction.

The mainstream press provided little useful context to help readers gauge the severity of Arenas’ offense. In trying to supply some background, a March 23 Associated Press story that appeared in a vast array of print and online outlets only confused matters further. “A survey of similar cases over the last two years in the district indicate [sic] that about half of the defendants convicted of Arenas’ crime receive some amount of jail time,” the A.P. reported.
The “similar cases,” it turns out, were a miscellany of loosely defined “felony gun possession” cases, with wide disparities in the underlying offenses. The sample encompassed cases involving loaded as well as unloaded guns. It also grouped cases in which a gun was used to threaten somebody with cases in which it was not. In other words, it conflated the very sorts of differentiating factors most relevant to judges in weighing whether jail is merited in individual cases. (Judge Morin, for example, cited unloaded weapons and nonviolent intentions as mitigating factors when he decided against jail for Arenas.)

And because it was restricted to felony gun possession, the survey didn’t tell us if prosecutors typically opted to prosecute cases like Arenas’ as felonies or as misdemeanors. Nor could it have: The number of cases involving unloaded, legally owned guns employed in some kind of bluff, joking or otherwise, would have been too small to yield statistically meaningful patterns. Anecdotal evidence, however, suggests that roughly comparable cases in the District are likely to be settled with misdemeanor convictions on a lesser charge, possession of an unregistered firearm.

One example of a defendant who pleaded guilty to that charge: Javaris Crittenton. Witness testimony and the logic of Crittenton’s own story-he says he brought his gun to the Verizon Center for self-defense-suggest his gun was loaded. But Crittenton denied this (a denial prosecutors seemed eager to credit) and was let off with a year of unsupervised probation.

The Tabloid Heckler

If Arenas, a sometimes exasperating but often endearingly free-spirited man-child, was recast as an unhinged, gun-slinging score settler, it was thanks largely to a stream of sloppy and sensationalized reporting by the influential New York Post NBA columnist Peter Vecsey and various collaborators. Among the falsehoods that did the most to distort perceptions was his report, published on January 1, that Arenas and Crittenton had actually drawn guns on each other, with Arenas drawing first. (The co-written “exclusive” also incorrectly claimed that the incident took place on Christmas Eve.)

Arenas had real reason to fear the impact such articles would have on the audiences that mattered most to him. The Post quoted Billy Hunter, executive director of the NBA Player’s Association, calling the incident “unprecedented in the history of sports” and taking the paper’s account of the incident at face value: “I’ve never heard of players pulling guns on each other in a locker room.” Disconcerting words for Arenas, given that the players association would have responsibility for representing him in any NBA disciplinary proceedings.

Not merely inaccurate, Vecsey’s coverage was taunting, the rhetorical equivalent of bear-baiting. In a particularly provocative passage, he gratuitously floated a scenario-betting on NBA games-that would have triggered the lifetime ban he thought Arenas deserved.

Arenas took the bait. In a series of sarcastic Tweets, the Wizards star ridiculed Vecsey’s emerging caricature of him and the faulty reporting underlying it. After Vecsey’s first story appeared, for example, the player tweeted: “i wake up this morning and seen i was the new JOHN WAYNE…Imao media is too funny.”

On January 5, before a game with the Philadelphia 76ers, a smiling Gilbert Arenas was photographed pretending to fire imaginary pistols at laughing teammates gathered around him in a circle. The image and the rest of his behavior that night are properly understood only in the context of his growing obsession with Vecsey’s serial smears.

Arenas received some exceptionally angry heckling and booing during the Philadelphia game, evidence of how badly the playful superstar’s image had eroded since the locker room escapade. He, of course, knew the Post‘s tales of “shocking locker-room gunplay” and a “duel…unprecedented in sports history” were wild distortions. So, it’s fair to assume, did his teammates, some of whom had witnessed the prank. By January 5 the Wizards season, disappointing even before the gun episode, was on the verge of unraveling as the result of the incident’s ongoing unpredictable repercussions. His teammates must have been studying Arenas’ moods and body language: How would their go-to player hold up under the mounting pressure? Their response to this crisis hinged on his.

In a bid to lighten the atmosphere-and with a little prompting from teammates-he reenacted a touchdown dance from Oliver Stone’s football movie Any Given Sunday, parodying the two-fisted gunslinger he was not. Arenas and his teammates weren’t laughing at fears of gun violence in the NBA. They were laughing at fears of Gilbert Arenas. A nonviolent “goofball” (as the player called himself in one tweet) had been morphed into a hothead who threatened violence to settle gambling disputes. Arenas was laughing, and his teammates were laughing with him, because the revised portrait was simply laughable to those who knew him.

After the Philadelphia game, Arenas told reporters he was less worried about the criminal case, since the legal authorities knew the facts, than he was about league punishment, because, he said with a twinkle in his eye, NBA Commissioner David Stern “is mean.” More seriously, he explained, “Most likely he’s getting a lot of pressure, because there are a lot of stories going around, to…act before” prosecutors decide whether to bring charges.
The next day, as if in fulfillment of his fears, Stern suspended Arenas indefinitely, saying, “His ongoing conduct has led me to conclude that he is not currently fit to take the court in an NBA game.” League sources told ESPN.com that the player’s actions and words in Philadelphia had prompted Stern to act immediately rather than let the legal process run its course.

Stern’s statement was short on specifics, but there was something chilling about the commissioner’s emerging motives. “League officials,” ESPN.com reported, “were incensed by the way Arenas mocked the reactions of the media and public toward his behavior on his Twitter page and in comments to reporters-even before Tuesday’s actions in Philadelphia.”

With both the criminal and league investigations of what happened in the Wizards locker room still unfolding, the commissioner must have realized that he lacked a solid factual basis for umpiring the dispute between Arenas and his tabloid accuser. Yet with public anger at Arenas cresting, Stern pressed his own thumb on the scales. In sidelining Arenas for mocking the press’s distortions, he implicitly vouched for their veracity.

Consequences

Arenas escaped a prison sentence, but he has not escaped punishment. The star has forfeited more than $7 million in salary and lost a shoe contract with Adidas worth an estimated eight figures. He has been stigmatized with a felony conviction. He has been humiliated with publicity proportional to his fame: After endorsing his suspension, his own team excised him from its pre-game video introductions, pulled down a large banner of him displayed outside the arena, stopped selling Arenas jerseys, and (according to press reports) even explored the option of voiding the remaining four years of his six-year, $111 million contract, despite an NBA rule prohibiting punishment of a player by both the league and the team for the same violation.

And halfway houses are not B&Bs. At the Montgomery County Pre-Release Center in Rockville, Maryland, where Arenas was incarcerated, just 5 percent of the offenders were, like him, probationers sent there in lieu of prison, according to Arthur Wallenstein, the county’s director of corrections. The other 95 percent were transitioning ex-cons. In the assignment of rooms, which are shared, there is no policy of segregating probationers from ex-cons, some of whom, Wallenstein says, have done “super heavy-duty” prison time.

But it’s only in the context of his playing career that one sees the full impact of the punishment imposed on Arenas, a once-dominating force on the court whose skills, charisma, and crunch-time heroics often rivaled those of Le-Bron James and Kobe Bryant. His season-ending suspension fell on a player struggling to come back after having missed virtually all of the two preceding seasons in the prime of his career due to injury. Based on his pre-suspension play this season, where the rust was discernible more in his mental than his physical game, it’s reasonable to expect it will take him close to half of next season before returning to form. By that time he will be turning 29, and at that age his performance probably will not return to peak levels.

The effective loss of a season translates to perhaps 20 percent of Arenas’ remaining career, maybe even more for a player with surgically repaired knees whose game depends on lightning quickness. Barring a trade-and who wants a rusty felon with an injury history and $72 million left on his contract?-Arenas will be starting over on a rebuilding team whose management has soured on him. As an already disappointing season disintegrated altogether following the loss of its star player, the Wizards blew up the once playoff-contending core that they had been patiently assembling for years, trading away their two other stars in midseason. With the team’s hopes for the future vested in its number one pick in the NBA draft-likely to be John Wall, who plays Arenas’ point guard position-Arenas now represents the unfulfilled expectations of its recent past.

Just imagine if his guns had been loaded.

The previous sentence is purely rhetorical. NBA Commissioner David Stern already has a track record of punishing offenses involving loaded guns, even the firing of shots. In those cases, transgressors were punished far less severely than Arenas.

The Arenas suspension is, believe it or not, the third most drastic non-drug-related suspension in NBA history, trailing only those meted out to two of the league’s more notorious reprobates: 68 games to Latrell Sprewell, for choking his Golden State Warriors coach P.J. Carlesimo, and 86 games to then-Indiana Pacer Ron Artest, for triggering a near-riot in Detroit’s Palace of Auburn Hills when he ran into the stands and punched a fan he erroneously believed had flung a cup of Diet Coke at him.

In designing measured punishments, one compares offenses and offenders, weighing personal factors such as character and disciplinary history. Gilbert Arenas did have a previous offense on his record: a similar 2003 misdemeanor conviction for failing to obtain California registration for a gun he’d legally owned in neighboring Arizona. He is eccentric, impulsive, and childlike; a serial prankster; his own worst enemy. But comparing Gilbert Arenas to Latrell Sprewell or Ron Artest is like comparing Inspector Clouseau to Inspector “Dirty Harry” Callahan.
Previously, the longest NBA suspension for a gun-related offense lasted all of seven games. It was imposed on Stephen Jackson after he pleaded guilty to a felony count of criminal recklessness for firing five shots near an Indianapolis strip club in 2006, while he was a member of the Indiana Pacers. And this followed Jackson’s 30-game suspension in 2004 for charging into the stands with Artest and throwing punches at fans.

More recently, in April 2007, Sebastian Telfair was arrested in New York after police found a loaded .45 caliber handgun under the front passenger seat of his car. He had been driving 77 miles per hour in a 45-mph zone with a suspended Florida license. After Telfair pleaded guilty in October 2008 to criminal possession of a weapon, the NBA suspended him for three games.

If the Arenas suspension was just about guns and, as Stern put it, the “health and safety of our players,” how on earth can it be squared with the commissioner’s hands-off response thus far in the case of Cleveland Cavaliers guard and D.C. native Delonte West? Last September, just months before the Arenas incident, West, driving a three-wheeled motorcycle, was pulled over on the Capital Beltway by a police officer he’d cut off in traffic. West, who has been treated for bipolar disorder, was carrying three loaded guns: a 9-mm Beretta in his waistband, a Ruger .357 magnum strapped to his leg, and a shotgun in a guitar case slung over his back while he was driving. But he has yet to lose a single game to league punishment. His trial on weapons charges has been repeatedly postponed, most recently until July 21, and Stern is awaiting the outcome before acting, as he usually does when a criminal case is pending.

As NBA commissioner, Stern is indeed charged with policing this area. Under rule 9a of the sweeping new gun restrictions added to the league’s 2005 collective bargaining agreement, he is arguably bound to punish gun possession on league grounds or league business with special severity-and the Jackson, Telfair, and West cases reviewed above each took place, unlike Arenas’, off-campus and off the clock. But Stern has been erratic even in enforcing rule 9a. In 2006, Telfair-him again-was suspended just two games and fined after a loaded pistol registered to his girlfriend was found in his pillowcase aboard the team plane.

The Arenas suspension seems even more incommensurate relative to recent punishments for dangerous offenses unrelated to guns. For example, Phoenix suspended Jason Richardson for just one game after he was arrested for driving 95 miles per hour in a 35 mph zone with an unrestrained 3-year-old in the back seat. Later the same year, after his wild ride, the NBA suspended Richardson two games for a DUI bust the previous December. And the league suspended the Denver Nuggets’ J.R. Smith just seven games after he pled guilty to reckless driving in an incident that resulted in the death of a passenger in his car. His previous driving record had included five license suspensions in one recent period of less than a year.

The Scapegoat

In his exchange with the press following the Philadelphia game in January, Arenas made a telling remark that attracted relatively little notice. “I’ve looked at some of the other charges that have been brought against other people, and they were [suspended for] three to five games,” he said, according to NBAFanhouse.com.
Arenas had obviously done his homework. In studying David Stern’s record, he understandably assumed his own punishment wouldn’t be very severe, since there was a consistently wide gap between the commissioner’s anti-gun rhetoric and his disciplinary actions. As it happened, someone else was raking over that dubious record in the first week of January and posing some embarrassing questions about it: Peter Vecsey.

In a January 3 column, the columnist derided that “measly 3-game suspension” given Sebastian Telfair for bringing a loaded gun aboard a team flight. (It was actually an even measlier two-game suspension.) “What happens if a fight gets out of hand on a plane at 30,000 feet in today’s heightened hostile world,” Vecsey wondered, “and a loaded gun is brandished…and used?”

And what was to stop Delonte West, still untouched by league action, from sneaking guns into the arena “and, on a particularly moody blues day,” Vecsey needled, “blasting everybody in sight?” Were players subject to bag inspections and metal detectors like everyone else, he demanded, or were they allowed to “waltz past guards at the door because they are who they are?”

It seems likely that such questions were 
receiving too much public attention for Stern’s liking. An emerging story line needed to be nipped in the bud. Before he stood revealed as a paper tiger, Stern needed a scapegoat. Arenas fit the bill.

You can question Stern’s fairness and wisdom in the Arenas case, but you can’t question his authority. Under league rule 35d, Stern is free to punish any word or deed he deems “prejudicial or detrimental” to the NBA. Explaining the drastic suspension to reporters in a January 27 conference call, Stern admitted that while it was partly about “health and safety,” it was also about “the overall image of our players.”

Under this subjective standard, Stern had sufficient cause to punish the besmirched and isolated Arenas with a severity completely out of proportion to his offense and in defiance of all relevant precedent. Gilbert Arenas became a symbol of liberal fears about the spread of guns and conservative disgust with cosseted, anti-
social pro athletes who think they’re above the law. Those two blocs turned in tandem against Arenas, who became an all-too-convenient whipping boy.

Daniel Wattenberg (danielwattenberg@yahoo.com) is a writer in Washington, D.C. This column first appeared at Reason.com.

Editor’s Note: This article originally misidentified the home venue of the Detroit Pistons.

The post The Persecution of Gilbert Arenas appeared first on Reason Foundation.

But Indians shouldn’t just stop there. They should also demand reform of the country’s draconian gun laws — a holdover from British times — that prevent them from defending themselves. That would surely deliver far quicker results than waiting for India’s slow-moving political classes to plug the vast lacunae in the country’s security apparatus. A police officer stands guard as Muslims offer Eid al-Adha prayers in Mumbai.

After all, what was particularly infuriating about the Mumbai attacks was not just that the Indian government failed to prevent them, even though it had received repeated warnings. Nor was it their tragic death toll; Mumbai, after all, experienced worse in the coordinated series of bombings in 1993 and 2006. Rather, it was that had there been anything resembling meaningful resistance, the attackers never would have been able to stage the kind of spectacle they did. Before they holed up in the Taj and Oberoi Hotels, they seemed to operate with almost complete impunity, freely moving from one target to another.

The same duo that opened fire at Café Leopold — among the first targets — managed to escape undetected and join their comrades at the Taj Mahal Hotel — a few miles away — before the police could even catch their breath. Likewise, the pair that attacked Chattrapati Shivaji Terminus subsequently hopped over to Cama Hospital, where they killed three top antiterrorism officials, hijacked the officials’ van and sped away — shooting at onlookers the whole time. And while at the Terminus — named, ironically enough, after a fearless Maratha warrior-king — the two gunmen marched up and down the station emptying their machine guns into commuters as the police stood by paralyzed, bolt-action rifles and lathis (bamboo sticks) in hand.

The true problem was not a shortage of heroism in those three horrible days. The courageous staff at the two hotels was nothing if not heroic, likely saving as many people as the police watched being killed. At the Taj, one employee even took the bullets for a group of guests he was trying to escort to safety.

But if the hotel staff could take bullets, the question is why couldn’t they return them? The reason, as P.R.S. Oberoi, chairman of Oberoi Group, noted, is that none of the hotel’s security staff was armed, thanks to the country’s strict gun laws that make it virtually impossible to obtain permits. This is also perhaps why the gunmen moved around the city as if they owned it without fearing that anyone would shoot back.

India’s gun laws have their genesis in colonial policy when — following the 1857 Sepoy Mutiny — British authorities drastically restricted gun ownership. So notorious were these laws that even the great apostle of nonviolence Mahatma Gandhi condemned them. “Among the many misdeeds of the British rule in India, history will look upon the Act depriving a whole nation of arms, as the blackest,” he said.

Although the Indian government repealed these laws after Independence, it replaced them with ones almost equally hostile toward its citizens in 1959. It created a new licensing authority and gave it virtual carte blanche to deny permits. It also restricted private manufacturing to primitive munitions that no one wanted while subsequently banning imports, all of which has made guns prohibitively expensive.

The consequence is that India has among the lowest gun ownership rates in the world — four guns per 100 residents, according to estimates by Martin Killias and his colleagues at the University of Lausanne in Switzerland. By contrast, the U.S. has a rate of 90 per 100; Canada, 31.5; Thailand, 16; and Pakistan, 12. But the most relevant comparison might be with Israel — another country facing a chronic terrorist threat — where 15% of adults carry concealed handguns, according to John Lott of University of Maryland.

One of the big obstacles to gun liberalization in India is the fear that more guns will lead to more violence, given that India is a tinder box of sectarian tensions ready to erupt at the slightest provocation. In fact, more gun ownership — especially by India’s minorities — might have a deterrent effect. But India could at least begin by relaxing gun laws for business establishments — malls, hotels, corporate offices — that are particularly vulnerable to terrorist attacks. These businesses could be allowed to acquire state-of-the-art weapons. In exchange, they could be held accountable for whom they entrust with the weapons and how they are deployed, creating an incentive for them to conduct their own background checks. Such a policy would not only make it easier for businesses to defend themselves, but it would also allow the government to direct more security resources toward airports, train stations, bus terminals and other public infrastructure that only it can defend.

No open society can completely protect itself against all acts of terrorism. Security resources are always finite and the potential terrorist targets always infinite. But India’s government surely can do a better job of protecting its citizens. Ultimately Indians can’t count on their government alone. They need to also reserve the right — and the means — to defend themselves.

The post Arming India Against Terrorism appeared first on Reason Foundation.