Bill of Rights II.


The Articles of Confederation provided a poor sort of national government. The “United States” received scant respect either from foreign or state governments.  The men who authored the Constitution were determined to correct this fault.  However, they knew that the great majority of Americans feared the power and ambition of any central government.  Like the British monarchy, even the most “liberal” government might become tyrannical.  For example, a government might seek to abolish slavery in the Southern states merely because a numerical majority found it abhorrent.

Consequently, James Madison designed a government based on the separation of powers.  The executive, the legislature, and the judiciary would be co-equal branches of government.  Each branch would work to hold in check the pretensions of any over-mighty individual branch.[1]

Some delegates to the constitutional convention in Philadelphia worried that these provisions did not go far enough in insuring individual liberty.  Elbridge Gerry and George Mason proposed addition of a bill of individual rights.  This was rejected.  Later, Richard Henry Lee proposed that a bill of individual rights be added to the Constitution.  This, too, failed.

James Madison had argued against any bill of rights.  He believed that such a bill would do no good against a “republican” government based on popular sovereignty.  That is, the “people” would brook no opposition from a minority.  Furthermore, a government might interpret a Bill of Rights as stating the maximum, rather than the minimum, liberties of the people.  However, during the ratification process it became apparent that many ordinary citizens shared the reservations of Gerry, Mason, and Lee.  Essentially, they believed that even the most “liberal” government might become tyrannical over time.  Madison had argued that no bill of rights need be included because the division of powers and the conflict between interest groups would hold tyranny at bay.  This argument failed to persuade many of his readers.  The promise to add a Bill of Rights then became a bargaining chip in the effort to persuade state conventions to ratify the Constitution.  Six states recommended that a Bill of Rights be adopted once the Constitution had come into effect.  There were only 13 states then, so…

Madison abandoned his opposition to a Bill of Rights.  He wrote his own.  He offered these to Congress in June 1789.  He proposed to splice-in Amendments One through Five within the Constitution itself in Article I, Section 9, between Clauses 3 and 4.   Clause 3 bans Bills of Attainder.  Clause 4 bans direct taxation except equally according to the census.  In short, Madison intended that the Bill of Rights be individual rights.

Added instead as an appendix to the Constitution, they were adopted by Congress and ratified by the required number of states by December 1791.  Critically, the Ninth Amendment stated that “The enumeration of certain rights shall not be construed to deny or disparage others retained by the people.”  In this way, Madison responded to his fear that a tyrannical government might treat a Bill of Rights as a maximum statement of the rights of individual citizens.

Subsequently, the courts, including the Supreme Court, held that the “right of the people” referred to the rights of individuals.  Freedom of religion is an individual right.  Freedom of speech is an individual right.  The freedom to petition for redress of grievances is an individual right.  The right to be safe from unreasonable search and seizure of papers is an individual right.  The right to not be compelled to testify against oneself in a court of law is an individual right.  The right to trial by an impartial jury is an individual right.  The right to not suffer cruel or unusual punishments is an individual right.  God save the United States of America.

[1] Although that left the danger that two branches might, for their individual reasons, gang-up on the third branch.


“Bump Stocks.”

The purchase of fully automatic weapons has been tightly restricted in the U.S. since the 1930s. Outlaws great and small used fully automatic weapons (machine guns and sub-machine guns) against rivals and against the police.[1]  The 1934 National Firearms Act narrowly restricted ownership of fully automatic weapons; a 1986 amendment prohibited most transfers or possession of automatic weapons, except those that had been manufactured and registered with the government in the past.[2]  It would appear that most privately-owned fully automatic weapons are in the possession of licensed gun-ranges.  You can go to a range, pay a daunting fee, and fire a fully automatic weapon at a paper target.  That’s enough for most gun-owners

Still, a small number of gun-owners yearned for the experience of firing a weapon on full-auto at a lower cost.  Then, some physically-disabled shooters wanted an adaptive technology that would allow them to enjoy one of their favorite pre-disability sports.  Admittedly, this is kind of a niche market.[3]  Numerous attempts to design retrofits for semi-automatic weapons failed.  Then, in 2008 or 2009, someone invented “bump stocks.”  The particular technology doesn’t seem to me to matter.  The effect does matter.  “Bump stocks” allowed shooters to “simulate” full automatic fire.[4]

In 2010, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (commonly ATF) considered whether they violated federal law by creating a new form of fully automatic weapons.  ATF concluded that they did not violate federal legal restrictions on automatic weapons.  They did not alter the internal firing mechanism.  They just exploited it to achieve the same effect as a full-auto weapon.  So, “bump stocks” were good to go.  This was two years before the Sandy Hook Elementary School shootings.  In the wake of the Sandy Hook shootings, President Obama said he would “use whatever power this office holds” to prevent a new version of the massacre.  Alas, when he issued 23 Executive Orders in January 2013 to enhance gun-control, these did not include ordering ATF to revisit its approval of “bump stocks.”

Still, “bump stock”-modified weapons have problems.  First, they are Hell on accuracy.  Still if a sniper has 22,000 people penned inside a concert venue, s/he doesn’t need to be very accurate.  Anything within range can become a target.  Second, firing weapons designed to fire as semi-automatic on “simulated” full-auto generates more heat than the weapons are designed to handle.  They tend to jam.  So Stephen Paddock attached “bump stocks” to 12 of the rifles he brought to his room in the Mandalay Bay.[5]  It seems likely that he walked back and forth between the two windows he had broken whenever a weapon jammed, picking another off the bed on the way.

The obvious solution here is to revisit the 2010 ATF decision and declare “bump stocks” illegal.  That won’t do the casualties in Las Vegas any good, but it might help forestall mass shootings in the future.  Still, “mass shootings” as conventionally defined and long-guns (rifles and shotguns) account for a small share of the murders and suicides that still give America a high homicide rate.  Certainly, action on this front is needed.  It should not distract people from the much larger problem of hand-gun killings.  However, it will do just that.  For now.

[1] See: and

[2] Kind of like “legacy” admissions to Ivy League universities.  I don’t mean to suggest that they have equally harmful effects on American society.

[3] One Georgia gun-dealer judged that he had sold a couple in a couple of years.

[4] See:

[5] At maybe $200 each, that cost his about $2,400.

“It Must Be a Peach of a Hand.”

In spite of the confident assertions on the right and the left, violence in America is full of puzzles and contradictions.  First, murder rates have fluctuated.  In 1980, America had a murder rate of 10.2 per 100,000 people.  The rate drifted downward for the next ten years, then began to fall sharply from about 1990.  By 2014 it had fallen to 4.5 murders per 100,000 people.[1]  Then, in 2015, the national murder rate increased to 10.8 percent.  However, the sharp increase can be attributed to selected cities (Baltimore, Houston, and especially Chicago).  There murder rates jumped to highs not seen in half a decade.  For example, by about 22 November 2015, Baltimore’s homicide tally hit 300 deaths.  This is 42 percent higher than the total for 2014 and we still had the holidays to go.  Most of the rise seems to have come since the rioting that followed the arresting-to-death of Freddy Gray.[2]  That’s scary because the last time the US had an increase like this came in 1971, at the dawn of several violent decades.[3]

One question to ask is if these changes reflected government action or some other influences.  A second question to ask is, if it did reflect government action, then did it reflect federal, state, or local action?  A third question to ask is, if it reflected some other influences, what were those influences?

Second, superficially at least, declining murder rates were tracked by declining support for the death penalty.  In 1994, fully 80 percent of Americans supported the death penalty for murder, while 16 percent opposed it and 4 percent were unsure.  By March 2015, 56 percent supported it.  By October 2016, 49 percent supported the death penalty.[4]  Similarly, the use of capital punishment continues to decline in the United States.  It fell from 98 in 1999 to 35 in 2014 to 20 in the first two-thirds of 2015.  Extrapolating from that latter figure, there would be 30 in all of 2015.  Even in Texas, the state most prone to impose the death sentence, no one has been sentenced to death so far in 2015.[5]

Third, just over half (55 percent) of Americans think that gun ownership can be restricted without violating the constitution (and the Second Amendment be Damned!) and slightly more (57 percent) want a ban on assault weapons.  Conversely, 43 percent of Americans believe that gun ownership cannot be restricted without violating the constitution and 25 percent oppose banning even assault weapons.  All the same, almost three-quarters (73 percent) of Americans support universal background checks.[6]

Fourth gun control is bad for gun control.  After the liberal characterization of the San Bernardino terrorist attack as a “mass shooting,” gun sales zoomed upward.  In December 2015, Americans bought 3.3 million guns.  All of these sales have been from licensed gun-dealers because the government background check system has been swamped.  Attorney General Loretta Lynch has asked for the hiring of 430 additional people just to process the background checks of Americans complying with the existing gun laws.[7]

In spite of the obvious violation of individual civil rights, most (80 percent) of Americans favor banning people on terrorist watch-lists from buying guns.  A small minority (17 percent) suspect that the ban would not be very effective.[8]  There are 25,000 to 40,000 Americans on terror watch-lists.  Of these people, 244 of them tried to buy firearms in 2015.[9]  That is, about one tenth of one percent sought to buy weapons.  People on terrorist watch lists buy guns at lower rates than do “ordinary” Americans.

Fifth, what is a “mass shooting?”  Orlando or Newtown, right?  Actually, the EffaBeeEye’s definition is a little more expansive: a single event in which four or more people get shot.[10]  So, criminals probably commit the bulk of the mass-shootings as a by-product of their business or personal lives.  By the EffaBeeEye’s standard, there have been 133 mass shootings in 2016.  Florida has suffered 15 (or 11.2 percent) of them.

Americans are sharply divided over how to interpret Omar Mateen’s massacre in the Pulse nightclub in Orlando, FL.  Most (60 percent) Democrats see it as an example of “domestic gun violence,” while most (79 percent) Republicans see it as an example of “Islamic terrorism.”[11]  The trouble is that the partisan filter on the vision of observers inhibits both understanding and civil discourse.  The further trouble is that both are right.

America is becoming a less violent place in comparison to the past, if not in comparison to Denmark.  Murder rates are generally trending downward; support for the death penalty is trending downward; and support for gun-control seems to be rising.  However, the politics of gun-control may well be hampering further progress.  It is common to blame the National Rifle Association for this problem.  It is common to use “terrorism” and “mass shootings” as labels that justify pushing ahead rapidly with strict gun-controls.  All that this does is to put the backs up on gun-owners.

Instead of shaming campaigns (satisfying though they are to many liberals), perhaps the best answer to a violent America is education campaigns.  Between 1964 and 2004, the number of Americans who smoked fell every year.  But in 2004, the decline bottomed out at 20.8 percent.  It stayed there through the end of 2007.[12]

Still, in these regards, America is a better, safer place to live than when I was a child.  Unless, of course, you are living in one of the broken cities where the War on Drugs spawns the “war for corners”; and where the “war for corners” spawns a confrontational style among young men with no better future.

This doesn’t end up exactly where I wanted to go when I began writing.  It just ends up where some random facts led me.

[1] “Noted,” The Week, 29 July 2016, p. 16.

[2] “Noted,” The Week, 27 November 2015, p. 16.

[3] “Noted,” The Week, 7 October 2016, p. 16.

[4] “Poll Watch,” The Week, 14 October 2016, p. 17.

[5] “Noted,” The Week, 25 September 2015, p. 16.

[6] “Poll Watch,” The Week, 5 August 2016, p. 17.

[7] “Noted,” The Week, 5 February 2016, p.8.

[8] “Poll Watch,” The Week, 1 July 2016, p.7

[9] “Noted,” The Week, 1 July 2016, p. 16.

[10] “Noted,” The Week, 24 June 2016, p. 20.  By this standard, the “Gunfight at the OK Corral” was a mass-shooting.  Especially if you were one of the Earp brothers.  If you were a Clanton or a McLaury, then it was a mass getting-shot.

[11] “Poll Watch,” The Week, 1 July 2016, p.7.

[12] “Noted,” The Week, 23 November 2007, p. 16.  Why did the decline stop?  What has it done since then?  Who are the remaining smokers?    I don’t know.  Perhaps they constitute a libertarian revolt against the intrusive nanny-state of liberal fascism.  Perhaps the people who rush to buy guns and ammo (as opposed to buying Guns and Ammo) are operating under the same star.

Assault Rifle.













Both Black and Blue Lives Matter.

This is ill-timed, so it is probably ill-considered.  Probably mealy-mouthed as well.

Generally, crime rates in America are down markedly from two decades ago.  (This is not true if you live in Chicago.)  The drop has not entirely been explained.  One explanation, advanced by the police is that aggressive street policing (e.g. “stop-and-frisk”) has taken criminals off the street, deterred many others, and stopped a downward spiral of civic demoralization.[1]

Effective or not, the policy had unhappy consequences that were not, but could have been, anticipated.   First, African-Americans are victims of crime at much higher rates than are whites.  Since we live in a still-segregated society, this means that most crime is intra-racial, rather than inter-racial.  African-Americans are disproportionately both victims and victimizers.  Concentrating policing on high-crime areas inevitably assumed a character that could easily be construed as “racist.”

Second, the vast majority of people living in high-crime areas are not criminals.  As a result, “stop-and-frisk” involves stopping and frisking lots of innocent people in order to catch a few guilty ones.  All those innocent people have every right to feel that they are being harassed merely because they fit some demographic profile.  Not much effort seems to have been committed to trying to ease this feeling, if it even would be possible.

Third, policing appears to be a “coarse art,” instead of a “fine art.”  Ordinary fallible and flawed human beings have to figure out how to carry out the strategies defined by their superiors.  Often they have to carry out these policies while in contact with difficult, non-compliant people.  Moreover, America is awash in firearms.  Far too often, these interactions end in violent death.   Often, but not always, the circumstances are gray rather than black and white.  Afterwards, prosecutors, judges, and juries are more inclined than not to reject condemning the police.  Politicians pile-on, affirming that the laws are applied in a discriminatory way, or voicing platitudes, or asserting an unquestioning integral defense of police conduct.

If you stay at this policy long enough, you’re going to anger an awful lot of people.  It’s like building up the “fuel” for a forest fire.  All that is required for a conflagration is a lightning strike or a series of them.

Trayvon Martin.  Michael Brown.  Eric Garner.  Laquan McDonald.  Walter Scott.  Freddy Gray.  All were lightning strikes that set off a conflagration.  On the one hand, the “Black Lives Matter” protest movement sprang up.  On the other hand, American views on the state of race relations shifted from optimistic to pessimistic.  Recently, Baltimore prosecutors have suffered a series of stinging defeats in the effort to prosecute police officers in the arresting-to-death of Freddy Gray.  Then, police in Minnesota and Louisiana shot to death two black men in what should have been minor incidents.  More lightning strikes.

Protests erupted in many cities.  In Dallas, a black sniper used the occasion of one such peaceful protest to kill five police officers.

It has been difficult to hold an intelligent conversation about these matters.  For one thing, the subject is both complex and painful.  For another, it coincides with other complex and painful controversies.  The white populist revolts in both major parties.  The mass shootings and terrorist attacks.  Are these issues inter-related, with a common solution, or is it just our bad luck that they arose at the same time?

[1] See Barry Friedman, “Thin Blue Lines,” NYT Book Review, 3 July 2016.  Friedman reviews Heather Mac Donald, The War on Cops:, and Malcolm Sparrow, Handcuffed.

Watch List.







[2] See an over the top account in



The 1400.

Chicago has a population of about 2.7 million people.  In the first quarter of 2016, it had more than 1,000 people shot—of whom 141 died.  That makes the “City of Big Shoulders” the murder capital—sorry, tired phrase—of the United States.[1]  Most of the violence appears to spring from wars between drug gangs.

“Da Cops” think that 1,400 young, black men did most of the shooting.[2]  It appears that most of those young men belong to a group of “social networks.”[3]  In an interesting experiment that smacks of Philip K. Dick,[4] the police have been analyzing 10 variables[5] to assign a likely-to-be-involved-in-violence score to people on its “Strategic Subject List” (SSL).[6]  It may not be perfect, but it’s not inaccurate: 70 percent of those who were shot so far in 2016 were in the list.

One question is how to respond.  A “public health” response takes the form of visits to the homes of people on the SSL by teams of police officers, social workers, and community organizers.  The purpose is to warn them that they have come to the attention of the authorities, and to offer them what meager support a bankrupt city can afford if they want to go down another road.[7]  Any life redeemed is a win.  One official says that 21 percent of the SSL figures “they had succeeded in talking to”[8] had accepted the offer of help and only 9 percent had been shot since a visit.[9]

Another question is about civil liberties.  People who care about civil liberties (practically an endangered species in America, they’re going to end up being released into the wild in Yellowstone or something like that) might be concerned about the fact that 80 percent of those arrested for involvement in shootings, and 117 of the 140 people arrested in a spate of drug and gang raids also were on the SSL.  Do the police have any evidence or do they just “round up the usual suspects” based on the SSL?  That approach is more cost-effective and emotionally satisfying in a country in love with “getting tough” with everyone except ourselves.

What do the variables themselves tell us?  Take “having been shot.”  If somebody shot me, then I would certainly want to shoot that person.  Fair’s fair.  However, I’d settle for the police arresting that person and the courts trying that person, and the judge assigning some inadequate sentence.  Walk away grinding my teeth.  None of that is true for the shooters and the shot in Chicago.  They don’t accept the court system.  They don’t delegate “justice.”  They don’t walk away.  Probably, that would undermine what little personal dignity they possess.

[1] “Chicago in crisis,” The Week, 13 May 2016, p. 11.

[2] They’re mostly terrible shots.  If you take 14.1 percent lethality as a measurement, the ROI is low.  Still, what if the thrill of the experience is what people are after, rather than actually killing somebody?  Also, it’s not like there are lots of places to practice one’s aim and receive expert instruction.  I suppose the cops could subpoena the records of gun ranges.  Find out who is buying time on the range, renting muffs and safety glasses, buying 9-mm ammo.

[3] See Andrew Papachristos,

[4] See:

[5] The variables include things like “trend lines” of previous arrests, arrest for possession or use of a weapon, and having been shot.  They exclude race, gender, age, and geography.  Why include things that can be taken as a given, but which will end up in a lawsuit over profiling?

[6] Monica Davey, “Chicago Police Try to Predict Who May Shoot or Be Shot,” NYT, 24 May 2016.

[7] That aid includes drug treatment, housing assistance, and job-training.  To put the worst possible spin on it, become a minimum-wage food-service worker, so you can go to bed early and can get up before dawn to take public transit, and be a complete pussy in the eyes of everyone except your grandmother.

[8] That is, most weren’t at home because they were “at work” or laying up with a girl or just told them to go away.

[9] They visited 1,300 people.  So, 9 percent would be 117 people.  Out of 470 killed and perhaps 3,300 shot.  Murky.