Stanford law professor doesn’t understand the law

The left and their fixation on guns never ceases to amaze me.  In particular, it’s amazing the mental gymnastics some go through just to make sure they don’t have to acknowledge that they’re wrong on guns no matter what.

Take, for example, Stanford University’s John J. Donohue.  Stanford has a reputation of a top flight school, which means it should have top flight faculty.  Well, Donohue makes me question that belief.

From The Daily Caller:

“I support the right to self-defense,” said Donohue during the debate, according to The Stanford Review. “But that doesn’t mean that you have a right to high-capacity magazines.”

Donohue explained that the Second Amendment must be interpreted in historical context. The founding fathers had no idea how powerful–and destructive–today’s weapons would become, he said.

He also criticized the argument that the right to bear arms was necessary for American citizens to guard against tyranny.

“It’s fanciful to think that guns in the hands of citizens acts as a realistic check,” said Donohue. “They’re not really trained to do so. And it’s fanciful to think that the military would ever turn on U.S. citizens.”

First, let’s look at his assertion that we have no right for so-called “high-capacity magazines”.  The last four words of the Second Amendment say, “shall not be infringed”.  That’s a pretty clear case that we actually do have the right to have as many bullets as we can handle.

Second, let’s take a look at what happened the last time we limited round capacity in firearms.  That would be the Assault Weapon Ban of 1994, that ended in 2004.  That means we have almost a decade of data following the ban lifting.  If someone like Donohue is to be believed, there must be some increase in violent crime as a result of this, right?

Well, it doesn’t look like it from this item from the Justice Department.

In 2010, about 1.8 million nonfatal violent victimizations were committed by strangers,which was a 77% decline from 7.9 million victimizations in 1993. Violent victimizations committed by strangers accounted for about 38% of all nonfatal  violence in 2010.

Of course, that’s also hardly a complete picture.  Of course, this graph, also by the DoJ, indicates that there’s been minimal change since the AWB sunset in 2004 as well.  So maybe Donohue wants to try again?

Now, let’s look at his comments about armed citizens not being an effective check on tyranny.  I get where he’s coming from.  After all, it’s hard to imagine your deer rifle being effective against a tank.  It just isn’t.

Of course, Donohue seems to ignore that his side first started their crusade against the Second Amendment against the sorts of weapons that actually would have been effective enough at curbing tyranny.

The National Firearms Act of 1934 was enacted in an attempt to twart gangland violence in large cities like Chicago and New York.  It’s famous for first regulating fully automatic weapons, popularly known as machine guns.  While it didn’t ban them, it required registration and permission of local law enforcement.

The NFA also restricted something called “destructive devices”, which are defined as:

(f) Destructive device

The term “destructive device” means
(1) any explosive, incendiary, or poison gas


(A) bomb,
(B) grenade,
(C) rocket having a propellent charge of more than four ounces,
(D) missile having an explosive or incendiary charge of more than one-quarter ounce,
(E) mine, or
(F) similar device;
(2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and
(3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684 (2), 4685, or 4686 of title 10 of the United States Code; or any other device which the Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes.
Now, these items would be ideal for fighting a well equipped military enemy, such as a tyrannical government here in the United States.  Unfortunately, Donohue’s forerunners already restricted that to the point that civilians can’t own the weapons best designed for combatting tyranny.
Now, as for his assertion that it’s fanciful that the military would ever turn on the American people, I argue that it’s ridiculous to think there are no set of circumstances where that could happen.
I’m a veteran, and I spend a lot of time with a lot of other veterans.  As things stand now, I’m pretty confident that if the government tried to use the military against the American people, the military would have a big problem.  In the Navy, we termed it “mutiny”.

However, we’re also responsible for future generations of Americans.  Things change.  Many of our Founding Fathers were against the idea of a standing army at all, while now many of us accept it as a normal part of government.  The fact is that in another 200 years, things could change yet again.  Hell, it could change in 10 years, or 20 years, or even just two years.  Who knows what the future holds?

Under no circumstances should Donohue’s lack of imagination ever be accepted as anything other than a lack of imagination.  To say it’s fanciful ignores the fact that once upon a time, the idea of the United States government spying on citizens was fanciful.  Once upon a time, the idea that the American government would get the power to take American citizens and hold them indefinitely without trial was “fanciful”.  The list goes on and on.

Donohue, who is a noted critic of John Lott’s “More Guns, Less Crime”, should keep in mind that once fanciful ideas often become reality.  This is especially true when politicians believe it’s more expedient to do things the “fanciful” way.

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