OSD 195: Majority rules
Last Tuesday, Measure 114 was approved by a simple majority of Oregon voters. The ballot measure specifies that:
To buy a gun in Oregon, you will first need to be approved by your local law enforcement agency for a firearm purchase permit. The permit is good for five years and requires:
A fee up to $65
Photo ID
Fingerprints
Completion of an approved training course
Passing a criminal background check and not being a prohibited person
Not being, in the judgement of the officer processing your application, a danger to yourself or others
Magazines that hold more than ten rounds, or that are “readily modifiable” to do the same”, are a crime to possess, transfer, sell, import, etc. There is a narrow grandfather clause, but even grandfathered magazines may only be possessed at your home or at the range. Carrying a grandfathered magazine is illegal. The grandfathering is also simply an affirmative defense — i.e. something you’ll be allowed to bring up at your trial, not something that will prevent you from being charged in the first place.
In the classical style, law enforcement is exempted.
The ballot measure passed with 50.83% of voters in favor and 49.17% against.
What’s next? A lot of details are up in the air. Per The Oregonian, “When will Oregon Measure 114′s gun limits start: Uncertainty reigns”:
Backers of Oregon’s gun control Measure 114 declared a major victory this week, but uncertainty lies ahead with months of legal wrangling and rule-making likely to delay the start well into next year, if ever.
State police, lawmakers and proponents must write the regulations for the state’s first-ever permits to buy a gun and figure out how much the rules will cost to carry out.
Meanwhile, at least one Oregon sheriff has promised not to enforce the ban on large-capacity magazines, while gun rights advocates are gearing up to block the measure, arguing it violates their Second Amendment right to bear arms.
So that’s all a bit of a commotion, and a rough day for gun rights in Oregon.
There’s a funny feature of the act of legislating in the US, which is that it’s extremely difficult to do any legislating. At the federal level, the framers cracked their knuckles and sat down to write the rules for legislating, but instead they wrote down a long list of things that get in the way of legislating. At a 2011 Senate committee hearing, Antonin Scalia put it like this:
The real key to the distinctiveness of America is the structure of our government. One part of it, of course, is the independence of the judiciary. But there’s a lot more.
There are very few countries in the world, for example, that have a bicameral legislature…. Very few countries have two separate bodies in the legislature, equally powerful. That’s a lot of trouble, as you gentlemen doubtless know, to get the same language through two different bodies elected in a different fashion.
Very few countries in the world have a separately elected chief executive. Sometimes I go to Europe to talk about separation of powers, and when I get there, I find that all I’m talking about is independence of the judiciary. Because the Europeans don’t even try to divide the two political powers, the two political branches, the legislature and the chief executive. In all of the parliamentary countries, the chief executive is the creature of the legislature. There’s never any disagreement between them and the prime minister, as there is sometimes between you and the president. When there’s a disagreement, they just kick him out. They have a no-confidence vote, a new election, and they get a prime minister who agrees with the legislature.
The Europeans look at [our] system and they say, “Well, it passes one house, it doesn’t pass the other house, sometimes the other house is in the control of a different party. It passes both and then this president who has a veto power vetoes it.” They look at this and they say, “It is gridlock.”
And I hear Americans saying this nowadays. There’s a lot of it going around, they talk about “a dysfunctional government” because there’s disagreement. And the framers would have said, “Yes! That’s exactly the way we set it up. We wanted this to be power contradicting power, because the main ill that beset us, as Hamilton talked about in The Federalist when he talked about a separate senate, he said, ‘Yes, it seems inconvenient. But inasmuch as the main ill that besets us is an excess of legislation, it won’t be so bad.’”
This is 1787, he didn’t know what an excess of legislation was. So unless Americans can appreciate that and learn to love the separation of powers — which means learning to love the gridlock which the framers believed would be the main protection of minorities. The main protection. If a bill is about to pass which really comes down hard on some minority, they think it’s terribly unfair, it doesn’t take much to throw a monkey wrench into this complex system.
There are two layers to this.
The first is tautological: it’s easier to pass laws when the bar to pass them is lower. When all you need is 50% + 1 on a single vote, you’ll make more laws.
The second layer is less obvious: more laws tends to lead to less individual freedom. But why should that be the case? There’s nothing stopping a legislature from passing laws that jealously guard people’s freedoms from the government’s would-be predations. The most famous set of laws in the US, the Bill of Rights, is actually an example of exactly that. So what gives?
The nature of individual rights is that the more they actually carry any weight, the less popular they get.
The “right” to talk about the weather is popular. The right to push offensively heterodox viewpoints is unpopular.
The “right” to stop police from doing unreasonable searches (to use the 4th Amendment’s terminology) in the abstract is popular. The right to stop them from doing the same even it might arguably help prevent terrorism is unpopular.
The “right” to own a gun to hunt is popular. The right to own tools of robust self-defense is … well, popular with 49.17% of last Tuesday’s voters in Oregon.
By definition, a popular right needs no protection in a majoritarian system. The only rights that really need protection are those that aren’t popular enough to survive the whims of a 50% + 1 majority. That list includes all the rights that anyone actually cares about.
So this all means that the only environment where robust individual rights can actually survive is one where they’re protected against the majority. And that requires deliberately anti-majoritarian roadblocks. “Majority rules” does what it’s advertised to do — it makes it much easier to pass laws. But in practice, as a purely descriptive matter, more laws means fewer individual rights.
This week’s links
Tucker Max: My entire self-defense system
Fun rabbit hole
Clay Martin Defense master checklist
Another fun rabbit hole
Maj Toure interview with Reason
“We hear a lot of people say, ‘If these communities would just pull themselves up by the bootstraps,’“ says Maj. “Okay, this is the bootstraps.”
Armed Attorneys on concealed carriers having their history of gun training used against them in court
Training remains on net a huge positive, but good to be aware of this.
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