Talking past each other

A few days ago there was was a pretty big discussion on some blogs about the “Godwin-y” comparison of publication of concealed weapons permit holders to Jews (etc.). The relevant posts are below in chronological order. There was one post prior to this where the Jews in the Attic Test came up in private email but I’m not including it since it was not public.

The comments are where most of the action is:

For the most part it appears to me that many of the participants were talking past each other. Joanna appears to be justified for expressing some irritation with:

I’m gonna say this once, and I’m gonna say it loud and use small words, so everyone understands me.

IT’S NOT OKAY THAT NEWSPAPERS MADE DATABASES WITH INFORMATION ABOUT CONCEALED-CARRY WEAPONS PERMIT HOLDERS

BUT

IT’S NOT KRISTALNACHT.

But then she appears to talk past them because as near as I could tell no one said it was anything like Kristallnacht.

That said I mostly disagree with Joanna saying it is over the top to make the comparison between the list of CCW holders and Jews.

It boils down to three things that need to be addressed.

  1. How bad does it have to get before it is okay to say it is acceptable to make the comparison?
  2. Just what is the current state of affairs?
  3. Gun ownership is a choice. Not something immutable like the color of your skin, your gender, or perhaps (let’s not go there, okay?) your sexual preference.

Point 1.

Silence = Death

My claim is that if you wait until the bigotry is so bad that you have events which are the equivalent of Kristallnacht you have waited much too long. At that point the police are looking the other way if not actually participating in the injustice.

A little bit of history (mostly from memory which is probably more than a little bit fuzzy so correct me where I make errors) is in order.

The abuse of Jews in Germany did not spring up out of nothingness when Hitler rose to power in the mid 1930s. Most people know there was a lot of anti-Jewish sentiment in Germany after WWI. But there was a strong German dislike for them going back several decades. And in some places in Europe it extended back hundreds of years.

That sentiment and the associated abuse did not include extermination camps until 1941. It sometimes involved unequal treatment under the law, segregation, and even driving them out of the country. But a greater proportion of the time it involved ostracism, boycotts, and public humiliation.

When is the appropriate time to complain about being mistreated as a group? Just what is the threshold before you get vocal and, in no uncertain terms, tell the bigots to back off?

Is it when the other kids in school make fun of your child because of the funny hat he wears sometimes? Is it sufficient if the newspapers attribute most crime and/or disease to “your kind”? Will it be time when the textbooks portray you as inherently evil (see also here)? Or what if the schools and public accommodations are segregated and significantly unequal? Do you wait until you are spat upon nearly every time you are in public? Or maybe you wait until it becomes illegal to have a government job.

I claim the time to get vocal about is as soon as it happens. I don’t think it is appropriate to stand secure in your position, unruffled, and get on with your business. It is very rare that you can win a war if you always play defense. You must go on the offense because otherwise your enemy will chose the time and place of his attack such that it maximizes his opportunity for success. If you are always fighting to protect your weakest flank what do you expect the result will be? We must fight on their weakest flank with our strongest “troops”.

A somewhat proportional response (Joanna’s best point) is appropriate. You don’t shoot the school bully after he splashed mud on your daughter’s dress (you look the other way while daughter Kim takes him down and rubs his face in the mud). You do shoot the police herding your family into the railroad cattle cars (a few hand grenades into their fully loaded APCs wouldn’t hurt either).

In 1987 gay activists came up with the slogan Silence = Death. They used this as the text for a poster composed of a pink triangle on a black background. The pink triangle, of course, was appropriated in the 1970s as a reminder of Nazi Germany where an inverted pink triangle was used to identify known homosexuals.

Silence in the face of injustice is almost certain to result in more injustice. And left uncorrrected long enough it will result in the extermination of the targeted population. The extermination may be the result of conversions to non-targeted groups or it may be through the physical elimination of that population.

Silence is not an option.

Point 2.

We don’t know who discovered water, but we know it wasn’t a fish.–Marshall McLuhan

We are blind.

I think one of the problems the Jews faced in Germany was the “boiling frog” problem. Things moved slowly enough that there was never a big enough change in one day/week/month that they could justify taking a stand over the latest injustice. The cost of putting up a fight versus the possible benefit never looked better than just trying to “keep your head down” and getting through another day. For those familiar with optimization problems–I view it as seeking a local optimum while actively avoiding the search for a global optimum.

I think it is far too easy for gun owners and especially the neutral but non-gun owning population to be unaware of the current state of affairs because it “is just the way it is”. The status quo almost always seems perfectly normal.

I will now point out some things that I think most people overlook when they think of gun owners and the situation we face. I do this in a fairly general manner and don’t even get into the most extreme situations like in New Jersey where “When dealing with guns, the citizen acts at his peril” (New Jersey v. Pelleteri). In order to see how bad it is I use comparison to other specific constitutionally protected rights.

Individual treatment.

There are people advocating that parents ask if their child’s friend has guns in their home before allowing them to visit. What if it were a religious or skin color test before they could visit?

There are celebrities who advocate that you be sent to jail if you own a gun.

There are people advocating “snuffing out” gunshop owners and pro-gun legislators–complete with lists.

There are people advocating the killing all gun owners.

The schools.

Of course you know that guns are only allowed near schools in a handful of states under very restricted situations. And you’ve heard about kids being suspended for possession of “GI-Joe” action figures with “guns” the shorter than your thumbnail. Or a sandwich eaten into the shape of a gun. What sort of message does this send the children about guns and gun ownership?

Are there any school textbooks that portray the shooting sports, self-defense, or the individual right to keep and bear arms in a positive manner? If so I have never seen them.

If it were a First Amendment issue regarding religious symbols or clothes what would be the effect? There would be a law against Jewish/Christian/Muslim symbols within 1000 feet of a school. If you park you car with a bible in it just outside the limit they suspend you anyway. And if you make the sign of the cross in front of another student you get kicked out of school.

Businesses.

Nearly all workplaces forbid you to carry a gun. It doesn’t matter that you are a petite female, elderly, wheelchair bound, or unable for any reason to defend yourself yet work the night shift in the bad part of town. Your best tool for defending yourself against death or permanent injury has to remain in your car and parked off the company property or you, almost for certain, will be fired on the spot.

If you park your car with guns in the trunk so you can go hunting when you get off work they will bring dogs in to sniff for them on the first day of hunting season–and then fire you.

Many businesses and shopping malls have signs on their doors forbidding you to carry on their property.

eBay, PayPal, and other commerce sites turn you away when firearms and/or firearm related accessories are involved. And in many cases who can blame them? The ATF has a reputation of  confiscating records, computers, products, and jailing the people involved in legitimate firearm businesses and frequently refusing to even tell them of the allegations against them.

Laws.

You can’t carry a gun on a plane, train, or many buses. You can’t carry a gun in the post office. There are some places where you cannot carry a gun in hosptials or churches.

Where is the Federal agency charged with enforcing the laws and making regulations restricting the First Amendment? What form do you have to fill out when you purchase a serial numbered Bible, Koran, or Torah? The form that must be kept for 20 years and be available for inspection by law enforcement?

And shouldn’t you have to pass a background check before you can purchased a religious book? And wouldn’t a 10 day waiting period be a good idea? What could it possibly hurt to wait a few days before getting possession of such powerful words they have been used as justification for the death and oppression of millions of people? It’s not like if you you need a copy of the Bible or Koran to defend yourself against an abusive ex who is threatening to kill you. You can get along just fine for a few days (or months) while the police interview your neighbors to see if you really should be allowed to own a book. And don’t forget mandated, government approved, training on the responsibilities of religious book ownership.

What if there was a law that enhanced penalties for crimes committed by Jews/Muslims/homosexuals? Suppose if you robbed someone while being a Muslim you automatically had another five years added to your prison term. How does that sit with you? We have that situation for gun owners, right now, in this country.

What if the standards of evidence were different if you were a Jew? Instead of the prosecutor having to prove your guilt you had to prove your innocence? I had one former New York City prosecutor tell me that if you shot someone in NYC the gun owner, and rightly so, had to prove it was self-defense. It was not the job of the prosecutor to prove it wasn’t self-defense.

There was a case where failure to pay a $200 tax on a shotgun (a jury eventually acquitted them of all of the alleged crimes and recommended the Federal agents compensate them for shooting the family dog as well) resulted in snipers in camouflage surrounding the house of the alleged perpetrator with the orders, “Deadly force can and should be used against any armed adult outside the house”. This order was in effect even without any occupants of the house knowing there was law enforcement outside or that they had orders to shoot on sight. The occupants of the house were exercising a constitutionally protected right when they left the house carrying their guns–as they always did when they went outside. It resulted in two of them being seriously wounded and a mother with a baby in her arms being killed via bullet to her head. What happened to the shooter and the people who gave the order? Even after congressional hearings they didn’t even loose their jobs or pay a fine. How much worse does it have to get before one can consider it the equivalent of the treatment of Jews in Germany 75 years ago?

Everyone knows about Nazi Germany treatment of Jews. But what about their treatment of private gun owners? The story of the Belgian Corporal is just one example. Did you know the U.S. Gun Control Act of 1968 was based on the German Weapons Control Act of 1938? And someone dares to say it’s inappropriate to compare gun owners with the plight of the Jews?

Point 3

Chilling Effect Doctrine: In Constitutional Law, any law or practice which has the effect of seriously discouraging the exercise of a Constitutional Right.–Blacks Law Dictionary.

True. There is a something to be said about “having a choice” to be a gun owner. You don’t have a choice to be black, racially Jewish, and perhaps homosexual. It is for this reason I frequently mention “interracial marriage” as a comparison. You don’t have to date, marry or stay married to someone with a different skin color. You don’t have to be openly gay. And you don’t have to be Baptist, Catholic, or Muslim.

So if your name and address was published in a list of all the Catholics in a state, right next to the sex offender database, you should just suck it up and not worry about it? Or how about the list of people in interracial marriages? It isn’t valid to compare that to a list of Jews because you can get off the list by changing the church you go to, or divorcing your spouse? Are you serious?

In this country we have a specific, constitutionally, protected right to belong to whatever church we want to as long we don’t hurt anyone else. And punishment for hurting someone else cannot be in the form of prior restraint. The law may punish someone for falsely yelling fire in a crowded theater, but the law may not remove someone’s ability to yell while in the theater. Yet we have that in this country for gun owners.

When someone starts publishing lists of “those people” it doesn’t really matter whether the list is of racial Jews or people that worship at the church of John Moses Browning. The publishing of that list serves just one purpose. And that purpose is not for the benefit of those on the list. The purpose is to cause a chilling effect on the exercise of that constitutionally protected activity.

Conclusion

The comparison of gun owners to Jews is valid. It currently doesn’t compare to the situation of Jews in Germany in 1941 or even Kristallnacht in 1938. But it’s not much different from their situation in 1931. The social stigma, the negative stereotyping in the press, schools, and the enhanced harshness of the laws all parallel the plight of the Jews in 1931. We even have politicians talking about the “Gun Problem” just like there were German politicians talking about the “Jewish Problem”. There are only a few people that want to kill us and a few more “enlightened ones” who just want us in prison. But you will have no difficulty finding people that want to stigmatize, harass and impose further restrictions on us.

Perhaps when comparing gun owners to Jews it should be qualified with “the Jews in 1931”. They didn’t have it so bad, did they? They didn’t have anything to worry about, did they?

True, our situation has been improving over the last few years. The trend is definitely up compared to the dark days of 1994 and 1995. There were smart, extremely well informed gun rights professionals, who then believed that the fight for gun rights would all be over in ten years. In ten years, they told me, the only people with guns would have a government paycheck or would be criminals. There would not be any young people to carry on the culture and the culture of freedom associated with gun ownership would be essentially extinct within 20 years. They were wrong. But the situation is only marginally improved.

Ten years doesn’t sound like a very long time but the changes can be profound. Just because the are no extermination camps for gun owners today doesn’t mean we can’t run a path parallel to the German Jews of 1931.

11 thoughts on “Talking past each other

  1. Excellent post, Joe. Bigotry is bigotry no matter what the target and it is never time to keep quiet about it.

  2. As I said in our email, I apparently had good reason to look forward to this post.

    You have a particularly unique (or at least significantly rare) ability to put forward a comparison/analogue/analogy, and then explain why, in no uncertain terms, that comparison is generally true in most cases, and for that, most of us less-gifted-in-wordcraft individuals are quite thankful.

    In the end, a right is a right, whether that right is equal treatment under the law, or the ability to own something if you want to. Thankfully, more people seem to be understanding that concept on a daily basis, but, unfortunately, the bigots of our world apear to be getting equivalently louder as well. Such is life, though.

    Now, I have some quotes of the day to be pulling from this post…

  3. Excellent!

    I know not what others will do, but people will die before they put me or mine in a 40&8. Nor will I wait until they are comfortable enough to make the attempt.

  4. Simple aphorisms:

    The Second Amendment is absolute in commanding that the right of the people to keep and bear arms SHALL NOT BE INFRINGED. No actor — public, private, citizen, government, local, state, or federal — may prevent the free exercise of the right to arm oneself in self-defense. Period. End of discussion.

    Until all bars to peaceable, defensive ownership of arms are removed, America might as well be a police state.

    There is no such thing as a “reasonable” restriction on liberty. Be wary of those who urge them.

    The very notion of a “compelling public interest” (or “state interest” — worse) should be anathema to a free people.

    M

  5. A couple points, if I may.

    The National Socialists first began rounding up “social undesirables” (which included Jews, but initially was largely directed at political opponents [communists for the most part], “mentally incapacitated” and “gypsies”) in 1930 or thereabouts. The work camps were subsequently created as an effort to divert the victims out of the normal incarceration facilities. To the best of my understanding, no citizen of the Reich volunteered to include their name on any list of participants, and I think it goes without saying that none of them deliberately applied to the Reich to be participants. For this last reason alone, any comparison of this historic episode with the newspaper’s database in IN fails for lack of equivalency.

    If an agency of the government had published a list of citizen’s previously private personal data, then you might have a comparable circumstance (though I think the absence of additional action would offer at least some legitimate grounds for disagreement). In the actual event, every citizen who had his/her details published (to the degree that can be factually argued) in fact did volunteer to have their details maintained on a public database – and knew this would be the case at the time they did so. Do you seriously contend that further making some of the already listed data more easily available really compares to the actions taken by the Nazi’s?

    And just because I find it so utterly disingenuous, Mark Alger’s (among others) nonsensical conjecture that the 2nd Amendment reigns supreme over all other rights of the citizen is foolish and childish. Government can violate a citizen’s rights; another citizen (in this instance, a corporate entity – a legal fiction granted some of the rights of an actual person) cannot do more than exercise countervailing – but equally sancroscant – rights or commit a criminal act. The two IN newspapers certainly did an unwise thing, but hardly criminal.

    To the best of my knowledge, nobody has tried to advance the argument that any of this was a good idea, or anything other than an obvious attempt to cast aspersion on the reputations of those who chose to acquire the offered government license. The two papers are suffering at least some financial penalty from their advertisers as a result. That said, most of us got the CHL license from our respective state because we accepted we were responsible for our own safety. So take up the burden of that responsibility, acknowledge that there are indeed people who mean you harm and get on with pursueing your rights. But stop whining about it already.

  6. Will, since you’re not from around here, I’ll cut you the benefit of the doubt. Your assertion that everyone “knew” their carry permit data was going to be part of the public record is patently ridiculous. Since I broke this story, the sheer number of emails that I’ve received that have expressed surprise and shock that their carry permit applications were part of the public record has been staggering.

    The truth of the matter is that most people in Indiana that get carry permits until now had no idea that the State Police would quite happily release the names, addresses, height, weight, sex, and race of over 350,000 law abiding citizens to anyone with the time to submit a written request and $32.

    No one at any juncture has said that the Herald Times did something illegal. In fact, we have gone to great pains to point out that what they did was perfectly legal – because the goal is to get the law changed so that we can prevent any further databases from being published. If a little histrionics is what it took to get people’s attention, I’m okay with that.

    And the best part is thus: we’re winning. We have three bills in the Indiana House now that will close access to the permit database to LEO’s only. So if someone on a blog compared this to rounding up Jews, or compared it to listing the names of battered women, I’m totally okay with that, since it seems to have been the right chord to strike with Hoosiers to get “the vote” out.

  7. Caleb; while I don’t question the contents of your e-mail in box, I confess little sympathy for people’s “surprise and shock” regarding the clearly stated responsibility of the Indiana State Police to maintain the handgun license database (see the section of the Handgun License FAQ regarding replacement of a lost document for only one example of acknowledgement of the existence of this public record). This was not a closely held piece of information if I can discover it from several states away with a simple search string. Further, as far as I can tell there was never any expectation from the application documents that the data recorded thereon was to be treated as confidential by the State Police. Your state makes no secret that only records identified as confidential (within the meaning of that word as stipulated by the legislature) will be restricted from public scrutiny. I would think it the obvious default expectation that any state agency will take advantage of all opportunities to generate additional funding through non-tax related methods (fees and licenses for example). Copies of a non-restricted database would seem an equally obvious expectation from this remove.

    Congratulations on your state’s early success via the legislative process. My sincere best wishes for prompt resolution of this issue too. Completely in accord with my earlier advice to “get on with pursueing your rights”. Would one of those bills happen to include making it a future requirement that all such efforts at private publication of public records include direct notification of those named therein prior to publication taking place? Should it prove impossible to stop the practice entirely, you could still make it more difficult to do so. Politics being “the art of the possible”, giving legislators multiple options to achieving your goal only seems good strategy to me.

    We can agree to disagree over the degree of ethical questionability demonstrated along the way, while still remaining allied in our objective to further secure our rights under our Constitution. Utility can be a very attractive philosophy in the short term.

  8. I view most things w/regards to gun politics through the lens of “will this help me/us win in the short term and the long term?” For example, take my appearance on Fox News – I “won” that debate not by making better points than the guy from the brady campaign, but because I was more likable to a mass market audience. Sadly, that’s what political discourse in mass media has become, condensed soundbites and a popularity contest, where people are judged more on style than substance.

  9. Will; “To the best of my knowledge, nobody has tried to advance the argument that any of this was… anything other than an obvious attempt to cast aspersion on the reputations of those who chose to acquire the offered government license.”

    Caleb; “No one at any juncture has said that the Herald Times did something illegal.”

    OK, if it is “obvious” that they published the records in an attempt to “cast aspersion” on gun owners then I’ll say it right now. They did something illegal.

    Read 18 USC 241;
    =====================================================
    Summary
    Section 241 of Title 18 is the civil rights conspiracy statute. Section 241 makes it unlawful for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same). Unlike most conspiracy statutes, Section 241 does not require that one of the conspirators commit an overt act prior to the conspiracy becoming a crime.

    The offense is punishable by a range of imprisonment up to a life term or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.

    TITLE 18, U.S.C., SECTION 241

    If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;…

    They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
    =====================================================

    And Will; You say that people CHOSE to be on the list. OK, lets say you can’t live in Germany as a Jew unless you apply for a “Jew License”. Now Jews can’t bitch about being listed in the newspapers because they CHOSE to be on the list? Nice try, but no. You missed the point.

    Can I file a FOIA request and get your driver’s license number? How about your SSN? Tax records? It’s “public information” right? Medical records? (I know– they’re working on that one) How about your HIV status? Hmmm? Don’t we all have “The Right to Know”?

    Requiring a license to exercise a right is pretty egregious in the first place. Lets not use the fact that people actually put up with it as an argument against them. Well, OK, maybe people shouldn’t put up with the licensing requirement. Would that make you feel better?

    Joe; Wow. Nice job.

  10. “Where is the Federal agency charged with enforcing the laws and making regulations restricting the First Amendment?”

    Well, there’s the FCC. A. Rand made the case that freq. allocation should have gone the same way as the Homestead Act (treating bandwidth like real estate).

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