Give Up on the Constitution?

Undoubtedly editorialists sometimes write things to be provocative.  There are times when I must keep telling myself that, times when I think if one of them really meant what he wrote, I'd wonder how anyone could be that stupid.

On December 30, 2012 the New York Times ran a piece by Louis Michael Seidman, a professor of constitutional law at Georgetown University, titled "Let's Give Up on the Constitution."  I pride myself on a vocabulary more extensive than possessed by most people with the same level of education as I, but most of the words that came to mind as I read Professor Seidman's column were not acceptable in polite company.

Seidman's thesis is that our nation's principal governing document was created by a bunch of propertied white men who thought slavery was OK and could not have any idea what life would be like two centuries later.  What relevance could - or should - such a document have for us?  It is, he insists, full of "archaic, idiosyncratic, and downright evil provisions."

It is true that the Framers could not come up with a way of ridding the new nation of the "peculiar institution" of African slavery, and so there are provisions dealing with the slave trade, which Congress was denied the power to prohibit until 1808, and the return of fugitive slaves to their owners, and the counting of a slave as three fifths of a person for purposes of determining a state's number of representatives in the House.  Notably, we fought a war that had the effect of eliminating the evil of African slavery, and the Constitution was amended to specify just how the freed slaves were to be treated.  Offhand, I cannot identify any other provisions of the original Constitution that meet my definition of evil. (Later revision, however, is a different matter, as each spring I find myself thinking the Sixteenth Amendment's provision for direct taxation of individual income is evil.)

Aside from "evil," it is entirely plausible that some provisions of the Constitution might be viewed as "archaic" or "idiosyncratic."  Article I is about the legislative branch of the national government, and it describes a bicameral Congress along with the qualifications for office, the manner of election, and the scope of authority and responsibility, as well as the limits on power.

Nowadays many people think one needs a college education to be an effective Member of Congress.  In the 18th century the country didn't have the system of education we have now.  Should a college education be a necessity?  Isn't it "archaic" to have the only requirement be one of age (25 years)?  The terms of Representatives are two years long, with no limit.  And six years for Senators, again with no limit.  Why not four years for both, and why not a limit of 12 years total?  These days most people seem to favor term limits.  Aren't the original specifics "idiosyncratic?"

Seidman isn't interested in changing any of that.  He does, however, make particular mention of Section 7's requirement that bills for raising revenue originate in the House (rather than the Senate).  The Framers thought the chamber with more democratic representation should be the prime mover behind taxation.  That isn't "archaic" or "idiosyncratic."  It makes sense.  But Seidman doesn't like it.

He also notes that the fuss over whether Barack Obama was born in the United States existed only because the Constitution says the president must be a "natural born Citizen."  Why should we care about that?  Well, apparently we do care.  We've had more than two centuries to think about it, and we've had the occasional foreign-born citizen (such as Henry Kissinger or Arnold Schwarzenegger) sufficiently popular to make people reconsider it.  But we have left this requirement unchanged.  And it's not as though we haven't taken notice of how important it is what the Constitution says about the office of president.  It took a century and a half to discard the precedent set by George Washington and elect a president to more than two terms.  Then, having done that, we amended the Constitution to make sure we didn't do it again.

Congress cannot pass a law declaring me a criminal.  Neither can it pass one making something I did last year illegal, turning me into a lawbreaker retroactively. Such laws (a bill of attainder in the first case, an ex post facto law in the second) are prohibited by Article I, Section 9.

When I go to Capitol Hill to visit my Congressman, the Capitol police cannot arrest me for bothering him.  In September, 2005, thousands of people held a rally on the lawn of the Capitol to draw attention to the need for greater focus on the problems of our nation's system of emergency medical care.  The Capitol police required that we let them know what we were up to, and granted us a permit, and we had to be peaceable.  But they couldn't tell us we weren't allowed to do that. Nearly a hundred times now I have sat down with my computer and written essays for this blog.  The government cannot prohibit my doing so, even though I am often critical of it.  We are guaranteed all of these liberties by a single sentence in the Constitution (the First Amendment).

Seidman doesn't say we shouldn't have these liberties, just that we don't need the Constitution to guarantee them:

This is not to say that we should disobey all constitutional commands.  Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution.  We should continue to follow those requirements out of respect, not obligation.

I cannot begin to imagine how a professor who has taught constitutional law for nearly four decades can write such a thing.  Respect?  Can we really think the government will respect our liberties if they are not guaranteed against infringement by a document that exists in part to restrain government?

Has Seidman ever taken a look at the national debt?  As of this writing, it is rapidly approaching $16.5 trillion.  We have a government that does not grasp arithmetic reality, let alone political philosophy.  How many of the 535 members of the House and Senate do you think have read John Locke, when they legislate as if they don't know what the debt clock says this week?  Seidman questions who should have the power of the purse and says it might be Congress, but that should be determined on contemporary policy grounds and not by the Constitution.  OK, I'll grant that Congress spends like so many drunken sailors (with apologies to those drunken sailors who rightly note that they quit spending when they run out of money).  But is someone else going to exercise more restraint?

Seidman says,

...the failure of the Congress and the White House to agree has already destabilized the country.  Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources. 

Now I am definitely losing the thread of his argument.  The people inside the beltway cannot play nice even when they have rules to follow, but if we just drop the rules altogether, relying on "accepted modes of procedure and engaged citizens," all will be well.  The last time I looked, Georgetown was a Jesuit institution.  Are its law professors really allowed to indulge in hallucinogens?

Seidman asserts that presidents from Adams and Jefferson to Lincoln and FDR have flouted the Constitution.  The implication seems to be that if such noncompliance suited them, we could do just fine without the traditional constraints.  We can just hope that freedom of religion, the right to due process and jury trial, protection from unwarranted search and seizure and from cruel and unusual punishment will remain ours in perpetuity even with no guarantees of "our political stability" by the "poetic piece of parchment" he so casually disparages.

That "poetic piece of parchment" is not immutable.  We can change it.  Even after we added the Bill of Rights, we amended the Constitution seventeen times.  It's easy to find out how: just read Article V.

Seidman's forthcoming book is titled On Constitutional Disobedience.  I can hardly wait.

Is Gun Registration Constitutional?

Do a Google search on whether registering guns is a good idea, and you will find enough to read to keep you busy for a very long time.  Before long, however, you will realize that it boils down to motives.

One's first take might be that registration provides a record of where the guns are, and you have to know that in case they are misused.  But those who are familiar with the manufacture and sale of firearms understand that there is no such need for registration.

When a gun is manufactured, it is engraved with a serial number.  The law requires that a record be kept of its movement from manufacturer to wholesaler, from wholesaler to retailer, and from retailer to consumer.  If a gun is used in the commission of a crime, and it is recovered and has not had its serial number filed off (a felony), it is a simple matter to trace it from manufacturer to last owner of record.  For this reason, any law-abiding gun owner should immediately report to law enforcement when a gun is lost or stolen.  If the gun is later used in a crime, you want to make sure there is a record of the date from which you no longer possessed it.

When I buy a gun, a record of the sale is filed with a law enforcement agency (where I live, it's the state police), and that is how the gun can be traced to me. And so it is the gun, not the owner, that is registered.  The police can look up a gun and find out who is the last owner of record.  In Pennsylvania,  however, state law prohibits the state police from organizing the database by owner, and so the police cannot look up a person and find out what guns he owns.

The word "registration," in the vocabulary of gun control legislation, refers to registration of owners.  This creates a database that can be used to find out who owns what.  This yields two problems.  The first is a matter of the purposes for which it can be put to use by law enforcement.  The second is a matter of who else can gain access to the database, whether through the Freedom of Information Act (FOIA), or just by computer hacking.

Recently a newspaper in New York state attracted much attention by using the FOIA to publish the names of registered gun owners in certain suburbs of NYC. Owners were greatly displeased, because they didn't want burglars to select their homes for possible theft of firearms.  Those not on the list, however, might have even greater reason to be displeased, because publication made one thing clear about their homes: no guns here, so no reason to fear you'll be shot if you break in and someone happens to be home.

So, if law enforcement already has a registry of guns, and that can be used to track them if they are recovered after being misused, why do they want a registry of owners?

Gun owners all say the same thing in response to this question: registration leads to confiscation.

This has happened in Australia.  Owners of certain firearms (notably semiautomatic rifles) were registered.  When it was subsequently decided that these weapons were to be banned, police knew which (law-abiding) citizens owned them, and it was then a simple matter to round them up.

How about here in the United States?  Owners must register in New York state. Some years ago, New York City decided to ban certain firearms (notably semiautomatic rifles), and this was made possible because a registry of owners existed.  Owners were told they could turn in their guns, sell them to someone outside the city, or show proof that the guns had in some other manner been relocated out of the city.

Senator Dianne Feinstein (D-CA) is proposing a new ban on semiautomatic rifles. Her legislation also stipulates that current owners of the banned firearms may retain them but must register them.  So the question is why owners should comply, if the only plausible reason for registration is future confiscation.

Oh, no, you might be thinking, that would never happen in the US, because we have the Second Amendment, and gun owners would never stand for that, and everyone knows that.  But if there is no other rationale for registration, why propose it?

Consider this scenario.  I happen to own several semiautomatic rifles.  A crime is committed in my region.  A semiautomatic rifle is recovered with its serial number defaced.  Or there are simply eyewitness reports that such a firearm was used in the crime.  Law enforcement officials have a registry of everyone who owns such guns.  They should simply pay a visit to each and every one of them and ask to inspect their premises and make sure all registered weapons are accounted for.

Are you OK with that?  Perhaps you are.  Gun owners typically are not.

At this point it is unclear whether the requirement that "grandfathered" semiautomatic rifles be registered under the National Firearms Act of 1934 (the law that regulates machine guns) will survive in the version that is ultimately considered in the Senate.  There is conflicting information about this on Senator Feinstein's Website.  But this brings me to the question posed by the title of this essay.

The United States Constitution prohibits Congress and the states from enacting "ex post facto" laws.  These are laws prohibiting something that was legal before the law was enacted and applying it retroactively.  It is not always a simple, straightforward matter to determine if a law violates this provision of the Constitution.  Some retroactive laws seem blatantly unfair but are allowed.  For example, the county in which I live can decide that my house is worth more than the value on which it was previously taxed and expect me to pay the difference going back several years.  I think that's ridiculous, but it's permitted.

So let's say I own a gun that is unregistered because it there is no requirement that it be registered.  There was no such requirement when I bought it.  Now a new law is enacted requiring registration.  Possessing an unregistered gun was legal yesterday, illegal today.  What I was doing was legal yesterday and now - without any change in my behavior, without any new action on my part - is illegal.

One could argue that the government is not retroactively making my action (actually inaction) illegal and punishing me for past behavior that was not illegal at the time.  Rather, the government is simply telling me what I must do from now on.

But the argument will surely be made that a requirement for registration is practicable only if it occurs at the time of acquisition, and that an expectation that a person will study newly enacted legislation to assure compliance when he is doing nothing new or different - in fact, doing nothing at all - is unreasonable, and that such an expectation is tantamount to an ex post facto law.

Much will depend on how the law is written.  If you possess an unregistered gun, will the government have to prove that you knew registration was required?  If so, the law might well pass constitutional muster.  If not, well, don't count on it.

I'm not an expert in constitutional law.  And I don't even play one on TV.  But if I'm choosing sides, I'm siding against this one.

Of course I'm also siding against it because I've seen no convincing rationale for registration other than subsequent confiscation, and I think the government should just not go there.  Many people who advocate registration and bans simply do not believe in private ownership of firearms.  I'm pretty sure Feinstein is in that camp.  And that's OK.  Just be honest about it, and we can have a spirited debate on that point.

Mandatory Flu Vaccine for Health Care Workers

“Are there any side effects I should know about?” asked the young lady.

“No, there aren’t,” answered the doctor.

It wasn’t the vaccine for influenza they were discussing.  It was the vaccine being marketed by Merck under the trade name Gardasil.  It is supposed to protect against the human papilloma virus, thought to be a common cause of cancer of the cervix.

I was hearing about this conversation after the fact.  The patient was in her mid-teens, bright, well-educated, and well-read.  The doctor was a family practitioner.  Trying to be charitable, I told the young lady that the doctor was being paternalistic, although that is a behavior that should be passé among physicians.  She was saying there were no side effects that should dissuade the patient from accepting the vaccine, failing to understand that was the patient’s call to make, not the doctor’s.  And she might have answered differently if the patient had been ten years older.

From my perspective, having spent many years studying biomedical and professional ethics, I considered the doctor’s behavior to violate the ordering principle of medical ethics in Western societies: patient autonomy.  The patient thought the doctor was just a liar.  Perhaps now that the patient is a college student, pre-med, who has learned a good bit about medical ethics already, she would be more charitable.  But her reaction - which was to decide against accepting the vaccine and simultaneously to decide she would not be seeing that doctor again - illustrates the importance of honesty in the doctor-patient relationship.

That young patient was my daughter, and she knew that her very conservative lifestyle meant her risk of acquiring HPV was zero, that the risk of an adverse reaction to the vaccine was small but non-zero, and that therefore the risk-benefit analysis did not come down on the side of benefit.

For many years I have worked at hospitals that strongly encouraged employees, especially nurses, to get a flu shot every year.  The “pitch” was that it would protect the recipient from getting sick.  Every time I read or heard the pitch, I bristled.  They should be honest, I said.  It is not at all clear that, for a young healthy person not in any high-risk group, the risk-benefit analysis favors benefit.  What is such a person’s chance of becoming seriously ill with seasonal flu?  Very small.  What about the risk of a serious adverse reaction to the vaccine?  (Guillain-Barre syndrome, which causes paralysis, starting in the legs and moving up, sometimes temporary, sometimes not, is the most common serious reaction.)  Also very small, but non-zero.  The risk-benefit analysis should be carefully considered by the person contemplating accepting the vaccine.

I thought the hospital management, employee health department, or infection control practitioner - whoever was making the pitch - should say the reason for being vaccinated was to protect our patients, to avoid acting as vectors of transmission of influenza from sick patients to those who were not sick with the flu but were susceptible.

As it turns out, the effectiveness of vaccinating health care workers as a way of protecting their patients is a matter of some controversy.  It is intuitively appealing.  It makes sense.  From what we know about contagion and public health and healthcare associated infections, it just has to be true.  But it’s not so easy to study, and the available evidence is not compelling.

And that brings us to the subject of this essay: mandatory vaccination.

The Centers for Disease Control and Prevention (CDC-P, or just CDC for short) currently recommends that everyone (past the age of six months) get the flu vaccine.  I have to assume the rationale is that it will reduce the total societal burden of influenza illness during flu season.  But people don’t find that persuasive.  They want to hear that it will keep them from getting sick.  So that is the message.  If the messengers are being responsible, they will include the caveat that the vaccine isn’t 100%, and it’s still important to pay attention to hygienic measures that reduce contagion.

But they aren’t as reserved in their recommendation as the facts suggest they should be.  There are important limitations with this vaccine.  The influenza virus is constantly changing.  For those who have not studied virology, don’t worry, I’m not going to torture you with the details.  But the proteins that make up the viruses mutate and rearrange, producing minor and major shifts, and occasionally new (“novel”) strains cross from other animal species to humans.  The vaccine produced each year covers just a few strains, chosen based on a best guess of what strains will be in circulation.  Those guesses aren’t always right.

With any vaccine, some people will be non-responders: the immune system just doesn’t make antibodies in response to the vaccine, at least not enough to be protective against illness.  And unfortunately the elderly, who are at greater risk of becoming seriously ill with the flu, are also at greater risk of being non-responders.

Finally, a substantial proportion of illness with flu-type symptoms - collectively called “influenza-like illness” - is caused by viruses other than the influenza virus.  The vaccine affords no protection whatsoever against those.  At the peak of flu season, about half of all influenza-like illness is caused by those other viruses.

So it’s easy to see why it’s not a certainty that vaccinating health care workers protects their patients and why it might be challenging to study it and try to prove it one way or the other.  At my hospital, employees are encouraged to get the vaccine.  If they decline, they are asked why.  If their reason doesn’t square with what is known about the vaccine - for example, some people are convinced you can get the flu from the vaccine, which simply isn’t true for the injectable version, because the virus has been inactivated - they are given information and asked to reconsider.  But vaccination isn’t compulsory.

Recently ABC News reported on the firing of a nurse in Indiana who refused influenza vaccination.  She thought she had a legitimate reason for refusing: she said her belief that she had a right to protect her body from this foreign substance could be likened to a religious belief, and religious exceptions were permitted.  Some infection control specialists don’t believe in religious exceptions.  They think people whose religious beliefs preclude vaccination shouldn’t be taking care of patients in a hospital.

Frankly, I don’t have an opinion on religious beliefs about vaccination.  I don’t know enough about them to have an informed opinion, and I don’t think I should have uninformed opinions.

But this much I do know: the principle that vaccinating health care workers against influenza protects their patients is based on a consensus of expert opinion, not compelling scientific evidence.  A consensus of expert opinion may be a sufficient basis for recommendations.  It is not a sufficient basis for compulsory vaccination.

It is time to start being honest about the difference between what we think is a good idea and what is supported by a solid foundation of medical science.  And it is time to start making policy decisions that may violate individual autonomy as though we understand that difference.

Depressed? Try Life Unsweetened

People who should know better insist on trying to discover links between diseases and lifestyle choices by doing studies that cannot tell us whether there is a cause-and-effect relationship.

Obviously I wish they would stop.  But they won't.  They keep doing these studies, and presenting them at medical meetings, and publishing them in medical journals.  And, not content to regale their colleagues with this nonsense, they look for a wider audience, an audience full of people who may not know enough about epidemiology or biostatistics to say, "Rubbish!"

Sometimes they don't even wait for their colleagues to say, "Rubbish!" before seeking that unsuspecting wider audience.  And so yesterday there came a press release from the American Academy of Neurology (AAN).  The message: sweetened beverages are linked to depression, and artificially sweetened beverages are even worse than the ones with sugar.

You know I'm going to tell you why this is rubbish, but instead of going right to that, let's approach this as if we were scientists interested in whether it might not be rubbish.  We would take this notion and turn it into a hypothesis to be tested using something that would actually qualify as science, in stark contrast with the subject of the AAN press release.

We would start by recruiting a large group of people.   Ten thousand would probably be enough, but there are statistical calculations you can do to figure out how many you'd need. The recruits would have to be willing to be randomized.  That means accepting assignment, generated at random by computer, to one of two groups.  The first group would be told they should drink artificially sweetened beverages as much as they want to, and they would be asked to keep a diary of their beverage-consuming behavior.  The second group would be told to keep a diary, too, but that they should really try to avoid drinking artificially sweetened beverages.

Then, periodically, the subjects would be asked to come in to have their diaries reviewed and to be asked a bunch of questions.  They wouldn't know what exactly the study was about.  The questions would be sufficiently wide-ranging that they couldn't figure it out.  The interviewers wouldn't know which group the subjects were in or what information was revealed by their diaries.  They also wouldn't know the purpose of the study.

The questionnaire would, of course, include numerous questions of the sort used to screen people for depression, and the subjects would be asked if they were being treated for any physical or mental health problems.

After we'd followed the subjects for a decade or so, we could see what differences, if any, emerged between the two groups.  The information in the diaries could tell us how well the subjects did what they were asked to do (with the caveat of "self-reporting bias"), and it could enable us to exclude from a portion of the analysis, if we were so inclined, subjects who really didn't do what they were asked to do.

This is what medical scientists call a prospective, randomized, double-blind, controlled trial.  This is toward the top of the hierarchy of what we call evidence-based medicine (EBM). (If you look at the pyramid, you'll see the only thing higher is the systematic review, in which smart people look systematically at the medical literature for all the studies that might shed light on a specific question, evaluate the studies, and tell us what the accumulation of scientific evidence reveals.)

This would not be an easy study to do.  To begin with, you can imagine the challenge of recruiting a large number of subjects willing to accept random assignment to one group or another with implications for a specific lifestyle choice that would go on for years.

So, not surprisingly, the investigators whose findings were reported in the press release from the AAN did not do that study.  Let me rephrase that, for emphasis: they did not do the only kind of study that could answer the question, rather than merely generating a hypothesis.

No, instead, they did an observational study.  They took a large number of people - more than a quarter of a million - and collected information about their beverage-consuming habits for one year, and then ten years later asked them if they'd been diagnosed with depression.

The first problem is obvious.  We don't know anything about their habits outside of that one year.  We also don't know if they were really depressed, only whether someone had made that diagnosis.  There may have been many people diagnosed with depression who didn't really meet accepted diagnostic criteria. Even more likely is that there were quite a few people who were depressed but hadn't been diagnosed.

The biggest problem, however, is that we have no way of knowing what other factors - and there could be many - might be what scientists call confounders: other influences on the likelihood of developing depression that might themselves be linked with the consumption of sweet beverages (whether naturally or artificially sweet).

The most obvious potential confounder is obesity.  It is so obvious that one would hope the researchers looked for differences in the incidence of obesity and tried to adjust for such differences.  That way, if people were more likely to be depressed because in our society it is sad to be fat, and fat people are more likely to drink sweet beverages with sugar (which help to make or keep them fat) or artificially sweetened beverages (because they are trying to lose weight), we can "correct" for the fact that more of the people who had been diagnosed with depression were also fat and, through statistical manipulation, try to eliminate the influence of that confounder.

The trouble with confounders is twofold.  First, statistical manipulation to correct for them is imperfect.  Second, and most important, is that you can try to correct for confounders only if you identify them.  And there may always be confounders that you have not identified.

The purpose of doing a randomized controlled trial is that, with a large enough sample size, the randomization is very effective in eliminating differences between the two groups (other than the one difference you wish to study) that might occur by chance.

So the sweet-beverage drinkers were a bit more likely, ten years later, to say they'd been diagnosed with depression.  And the ones who drank artificially sweetened beverages were a tad more likely than the sugary-drink consumers to say so.

There are questions that might not occur to you but that do occur to me because I practice in an academic medical center and review manuscripts submitted for possible publication in medical journals.  First, why would anyone do a study that cannot answer any important question?  Trying to put a positive spin on this, I'd say sometimes finding correlations or associations is interesting even if we know nothing about causality, and sometimes such findings can generate hypotheses worthy of being tested in a study which can get at the question of causality.

Second, why would a medical journal publish such a study?  I don't have a good answer for that one, because the results are not, I think, important enough to justify publication.  Third, although it is common for research findings to be presented at medical meetings when they haven't been (and may never be) accepted for publication, why would a medical association issue a press release drawing attention to such findings?

My favorite beverage.
I am an entirely
 uncompensated spokesperson.

Sadly, the answer is all too simple.  Results like this will capture the attention of the popular press and the legions of journalists who have no idea how to put them through the filter of intelligent skepticism.  They will then post and print articles about the findings, generating PR for the medical group.  And the unsuspecting public will think maybe they should stop drinking Pepsi One or Coke Zero.

This blog has never won any awards.
I expect that to remain true.

But not you.  Because you read this blog.  And you will say, "Rubbish!"

After the AR-15, How About a Tank?

I like to read Yahoo News.  If I didn't, I would be unaware of the existence of Honey Boo Boo.  I wouldn't know that Kim Kardashian and Kanye West are providing the latest bit of evidence in support of the arguments, made by some curmudgeons, that one should have to apply for a license to reproduce.


And I wouldn't know that Arnold Schwarzenegger owns a tank.  From Yahoo:

The tank in question is an M47 Patton. Produced between 1951 and 1953, the 50-ton behemoths are still in service across the globe 60 years later. And Schwarzenegger told me and an assembled group of around 15 journalists on Friday that this was “exactly the very tank that I drove in the Austrian Army when I was 18 years old.”

There is no mention in the article of whether Arnold's tank has the original 90mm cannon or the .30 and .50 caliber machine guns.  Neither does it say whether the former California governor, action film star, and competitive body builder has a supply of ammunition for those guns.

I'm guessing it didn't even occur to the reporters to ask about any of that, because we're talking about a famous person here, not just an average citizen. The thought of an average private citizen in possession of any of that would be horrifying beyond description, but Arnold is OK.  The rich and famous are different from you and me.

This reminded me of a recent discussion thread on a social media network about the right to keep and bear arms.  One participant said some of his friends who are gun rights advocates took the position, which he clearly viewed as extreme, that they should be allowed to own tanks and Apache helicopters.


A constant feature of these discussions is the idea that no one needs a (fill in the blank, usually something like an AR-15) to go hunting.  Every time I read that, I'm reminded of the bumper sticker slogan, "The Second Amendment Ain't About Duck Hunting."

So what is it about?  Well, it's true that it's not about hunting.  If you go back and read the writings of the Framers, you will find very little about hunting.  They put the Second Amendment in the Bill of Rights for two reasons.  First, they considered an armed citizenry to be a bulwark against tyranny.  (I almost never see the word bulwark used in any other context nowadays.)  Second, they considered armed self-defense to be a fundamental, natural human right that was sufficiently important to be guaranteed by the Bill of Rights.  Notice that this right exists independent of the Bill of Rights. A fundamental, natural human right is not created by the Bill of Rights - merely secured by it, against government infringement.

In the "bulwark against tyranny" framework, the right to keep and bear arms must encompass "arms ...  of the kind in common use [in military service] at the time."  (U.S. Supreme Court, United States vs. Miller, 1939.)  In this case Miller was in possession of a "sawed-off shotgun," and the Court said that in order to prevail in the case against him, Miller would have to show evidence that this was the sort of weapon one might have to use if he were to be called upon to serve in a citizens' militia. As it turns out, short-barreled shotguns were in use by the military in those days, but Miller did not present evidence, and the Court ruled against him.

Some opponents of gun rights say that if we are going to subscribe to the "bulwark against tyranny" argument, private citizens must be able to own machine guns, rocket-propelled grenade launchers, and shoulder-fired missiles. Such a position has not, to my knowledge, been taken publicly by any gun-rights advocates, although its logic is compelling, and I suspect the Framers would likely agree with it, as it is consistent with their original intent.

It is easy to dismiss that original intent by declaring that, more than two centuries later, we need not fear government tyranny.

At the Jewish High Holy Days in the autumn of 1992, the 500th anniversary of the voyage of Columbus to the New World - and also an important year (1492) in the Spanish inquisition - our rabbi spoke of the many Jews of Spain who converted to the official religion of Catholicism.  He asked the congregation to imagine facing a choice of conversion or leaving the country with nothing but the clothes on our backs.  What would we do if we knew government agents would be knocking on our doors to present that choice?

I turned to my wife and said I’d head down to the basement and start loading magazines.

In the 21st century we do not believe our government will be tyrannical or oppressive.  The Jews of Catholic Spain and Nazi Germany hadn’t believed it could happen, either.

If you are convinced that we need have no fear of our government, perhaps you recall episodes of civil unrest in which law-abiding citizens relied on privately owned weapons for defense.

In March, 1991, a young man named Rodney King was beaten by Los Angeles police officers.  The beating was caught on videotape and appeared to show that the officers used excessive force.  Four officers were charged.  In April 1992, they were acquitted on nearly all charges.  South Central Los Angeles erupted in riots.  Over fifty people were killed, and more than two thousand were injured. There was extensive looting.  Among businesses apparently targeted in the looting were Korean retail establishments.  At the time it was said that the black underclass in that part of the city resented the economically successful Korean immigrants.  Whatever the motivations for looting - and mob violence often has no motivation other than random mayhem - TV networks showed video footage, forever etched in my memory, of Korean shopkeepers on the roofs of their stores, holding AR-15s (or similar arms), which seemed effective in redirecting looters elsewhere.

I own semiautomatic rifles because I am a recreational shooter and enjoy a day at the range trying to make holes in a paper target at 100 yards in the smallest possible group.  Being able to fire a shot with each squeeze of the trigger and have the rifle’s mechanism cycle the next round into the chamber without having to work a bolt, which would interfere with my steady hold aligning the sights with the target, makes the semiautomatic rifle ideal for this pastime.

Do I expect to need my AR-15 to defend my home against a criminal mob, like the Korean shop owners during the rioting that followed the Rodney King verdict?  Not really.  I live in an area where the risk of attack by a small pack of coyotes is much greater than that of facing a group of malevolent humans.  Am I expecting agents of the government to knock on my door commanding religious conversion?  Certainly not, although I believe a government that trusts the people with arms may be more deserving of the people’s trust (paraphrasing James Madison).

Unlike Arnold, I do not wish to own a tank.  For one thing, I have no place to park it.  And I cannot afford to operate a vehicle whose fuel consumption is measured in gallons per mile (the M47's fuel capacity is 233 gallons, and its average range is 100 miles).

But I am convinced of this: telling folks such as I that we may not purchase semiautomatic rifles or high-capacity magazines is extremely unlikely to save the life of a single innocent who might be imperiled by a deranged killer.  Pistols with ten-round magazines can be reloaded quickly and are more than adequate as implements of such mayhem.

We can pass all the gun control legislation we want, but allowing that endeavor to distract us from the task of getting at the root causes of these horrific crimes, in the psyche of the perpetrator, will satisfy those who fear and loathe guns while leaving the fundamental problem unsolved.

Rodney King died last June.  During the riots, which King recognized as fundamentally destructive of civil society, he asked, "Can we all get along?"  This could be asked of the advocates of gun control and of gun rights.  And the answer is yes, if we remain focused on the problem of human behavior that is fundamentally destructive of civil society, rather than the implements of that destruction.

  

What Does NHL Stand For?

I am not a hockey fan.

This is not to say that I do not like to watch a hockey game now and then.  But it's different with baseball, or football, or basketball. Especially baseball.

I grew up in a city whose baseball team was terrible in those years. The Phillies were perennial cellar dwellers.  And I now live in a city with a team that has strung together 20 losing seasons.  But I have always been a fan of the game.

Not so with hockey.  I am loyal to my town's teams, so I root for the Penguins.  But in nearly 35 years, I've been to one Penguins game.  And until I got a big-screen TV, I rarely watched hockey on TV, because I could never see the puck.

So I'm a Penguins fan, but not a hockey fan: a fan of the team, but not really of the game.  Abbreviations tell the tale.  (Remember, I'm a doctor.)  Say "NHL," and I'm more likely to think Non-Hodgkins Lymphoma than National Hockey League.

Thus, the NHL lockout hasn't been a big deal for me.  I've hopefully followed the NFL season until the Steelers, still in control of their own destiny, could not beat the Bengals in Pittsburgh in Game 15 and failed to secure a wild card berth.  And I've enjoyed the college football rivalries and bowl games.

Watching Heisman Trophy winner Johnny Manziel perform magnificently as he led Texas A&M to victory over Oklahoma in the Cotton Bowl was a delight.  Even though I have no direct ties to Alabama or Notre Dame, I am much more interested in who wins their national championship game tomorrow night than I am in whether there is an NHL season this year.

In the two decades since the Pirates' last winning season there have been four (!) NHL labor disputes, with one season entirely scrubbed and three others dramatically shortened.  I barely noticed.

But I have to wonder what the owners think they're accomplishing. How many hockey fans have been turned into folks like me, just not that into it any more?  Professional athletic competition is entertainment. It's show business.  If there's no show, there's no business.  And when there's no business, some customers who are turned away will never return.  No matter how much the owners succeed in striking a better deal with the players, this cannot be a good thing.

The regular season in the NHL could be 48 games instead of 82, and by the end of it, fans will likely still be satisfied, because then the second season (also known as the playoffs) begins.  I suspect there are a lot of lukewarm fans who, like me, don't really watch many regular-season games anyway, and really don't pay a whole lot of attention until the playoffs.  (No doubt the same is true for the NBA, whose playoffs are also long enough to constitute a second season.)

But how many serious hockey fans are just thoroughly disgusted by the whole thing?  This is, after all, about the game, the competition, the beauty and the guts and the glory of matching athletic skill and finesse - and, yes, brute strength and street-fighting ability, too - against another team on the ice.  That's what it's about for the fans.  And the fans are pretty sure that's what it's mostly about for the players, too.  Sure, they want to make a good living, and they like being famous. But they enjoy the adulation of their fans, and they know what it takes to earn that.  It's what they do on the ice, the fast skating, the great passes, the breakaway goals, the brilliant saves, and the slamming of an opponent into the boards to separate him from the puck.  It's all about the game.

Yes, the fans know that for the owners it's all about the money.  They're businessmen. Sure, they like the game, and they want to put a winning team on the ice.  But for the vast majority of them, that's only because they may be able to make more money that way.  Do they care about the players?  Do they care about the communities in which their teams play, and the economic impact of a professional sport - or a missing season?  Do they care about the fans?

We know they care about the money.  They haven't shown us they care about anything else.