Recently Judge Larry Alan Burns put forth his “conservative case” for gun control in the LA Times.

Last month, I sentenced Jared Lee Loughner to seven consecutive life terms plus 140 years in federal prison for his shooting rampage in Tucson. That tragedy left six people dead, more than twice that number injured and a community shaken to its core.

Loughner deserved his punishment. But during the sentencing, I also questioned the social utility of high-capacity magazines like the one that fed his Glock. And I lamented the expiration of the federal assault weapons ban in 2004, which prohibited the manufacture and importation of certain particularly deadly guns, as well as magazines that can hold more than 10 rounds of ammunition.

Larry, can you please define your terms? What exactly is “social utility”? Utility to whom? And by what standard? Since you don’t define it I shall deconstruct that phrase. “Social” implies “society” and I as the individual am a part of that society. A synonym for for “utility” is “useful”. Personally, I find magazines of all sizes useful when engaging in perfectly legal activities involving a firearm.

Do you also know that the Glock 19 pistol comes standard and was designed around having a 15 round magazine? That isn’t high capacity, that is the standard capacity for that particular firearm.

Top: An example of an adjustable stock. Bottom: A fixed stock. Note that both stocks are mounted on the same type of rifle. Advocates of reinstating an “assault weapons ban” want to treat owners as felons should an adjustable stock be added to a rifle made after a particular date when combined with other cosmetic features.

What is a “certain particularly deadly gun”? The so called “assault weapons ban” for which you advocate only placed restrictions rifles on cosmetic features such as flash hiders, pistol grips, adjustable stocks, etc. It had nothing to do with the actual function of the firearm, such as the rate of fire or the caliber.

The proper use of the term assault rifle describes a firearm that can discharge more than 1 round for each trigger pull. While rifles such as the M-16 look similar to the AR-15 in terms of cosmetic features, the M-16 can fire in full auto mode while a stock AR-15 can not.

Question: How many fully automatic firearms were impacted by the “assault weapons ban” in 2004?

Answer: 0

True assault weapons were already regulated by the National Firearms Act of 1934. These are firearms that can operate in fully automatic mode, where one pull of the trigger can discharge more than one round from the firearm.

Larry, does the same type of bullet fired from a rifle with a pistol grip somehow become more lethal as opposed to another that is fired from rifle without a grip of that style?

What about if it has a flash hider? Does the bullet become more menacing knowing that there wasn’t a flash associated with it?

Of course not.

And what does “high-capacity” mean? If you are using the term high, it must be relative to an absolute measurement. Relative to what? Ten? What is the significance of ten as opposed to nine or eleven? You don’t say, therefore we can only conclude that choosing that number is completely arbitrary and not based on any objective criteria.

The ban wasn’t all that stringent — if you already owned a banned gun or high-capacity magazine you could keep it, and you could sell it to someone else — but at least it was something.

What is the point of doing “something”? If we wanted to prevent mass killings, wouldn’t it make sense to do the right thing?

And it absolutely was stringent. A person in possession of a magazine with a capacity over ten rounds created after an arbitrary date was now a felon. Declaring someone a felon isn’t stringent?

And it says something that half of the nation’s deadliest shootings occurred after the ban expired, including the massacre at Sandy Hook Elementary in Newtown, Conn. It also says something that it has not even been two years since Loughner’s rampage, and already six mass shootings have been deadlier.’

Sorry Larry, but you are trying to draw some correlation between the ban expiration and lunatics going on a shooting spree. This is a textbook misunderstanding of causation versus correlation.

The magazines were not the cause of people being shot. The lunatics who decided to murder people were the cause of the tragedies.

If the presence of magazines actually caused individuals to go crazy and start shooting everyone around them then every gunstore in America would be erupting daily in mass killings, every Army base would exploding in gunfights, and every police department would have blood running out the front door.

Secondly, there were still millions of so called “high capacity” magazines present in the country, even during the so called “assault weapons ban”.

I am not a social scientist, and I know that very smart ones are divided on what to do about gun violence. But reasonable, good-faith debates have boundaries, and in the debate about guns, a high-capacity magazine has always seemed to me beyond them.

No, it is perfectly fine to have a discussion about magazines. The issue that you are having is not being able to reconcile your desire to infringe upon an individual’s right to their property and the contradictions in your argument.

Bystanders got to Loughner and subdued him only after he emptied one 31-round magazine and was trying to load another. Adam Lanza, the Newtown shooter, chose as his primary weapon a semiautomatic rifle with 30-round magazines. And we don’t even bother to call the 100-rounder that James Holmes is accused of emptying in an Aurora, Colo., movie theater a magazine — it is a drum. How is this not an argument for regulating the number of rounds a gun can fire?

First off, the extended magazine for the Glock 19 holds 33 rounds. If you object to my pointing out that particular fact as being minutia, note that you are advocating making possession of a magazine illegal based on an arbitrary number and for that person to become a felon.

In essence your argument is that since someone else commits a crime with a particular object then it should be banned from everyone else who uses that object in a responsible fashion. I look forward to your later pieces talking about how cars should be banned because they are involved in DUI fatalites followed by your piece on supporting the upcoming assault knife ban.

For instance, the last time I went to the range I used magazines that come standard with the firearms that I was using. This means, yes, the horror, of actually using a magazine in a Glock 19 that holds 15 rounds and even another magazine that held 33 rounds. Amazingly, there were no mass casualties. In fact, not a single person was shot that day.

And please, do not put forth the argument that gun owners should sacrifice just this one thing to help prevent these crimes. Firearms owners have been under attack for exercising a right since 1934 at the federal level with the passage of the National Firearms Act, and for years before at the state level.

I get it. Someone bent on mass murder who has only a 10-round magazine or revolvers at his disposal probably is not going to abandon his plan and instead try to talk his problems out. But we might be able to take the “mass” out of “mass shooting,” or at least make the perpetrator’s job a bit harder.

No, you don’t get it. The statement “Someone bent on mass murder who only has a 10 round magazine…. “ has a false premise. You are asking us to stipulate that a murderer would only have access to a 10 round magazine. That is fallacious on several accounts.

Left: 20 round magazine, right: a 10 round magazine. Legal to own both today at the federal level (some states have local bans), gun control advocates want to make any person owning a magazine manufactured after an arbitrary date that holds more than ten rounds into a felon.

First off, as you have already stated, magazines legal prior to the ban could be kept when the so called “assault weapons” ban was passed in 1994. During the ban it was legal to trade and/or sell those grandfathered magazines during the ban. It is ridiculous to believe that a ban would keep magazines out of the hands of murderers because there would already be millions of magazines present in the country even if no more were imported or manufactured.

Secondly, what would stop the criminal from just creating one? A magazine is simply a box with a spring in it.

Third, the border to the country is hardly a sealed boundary. Being a judge I am sure you would have seen drugs present in the United States whose country of origin was Mexico or some other nation. Did the ban on drugs in the US make it impossible for those drugs to appear in the US?

Whether the job of a murderer is harder or not is irrelevant. It isn’t a question of degree, but a binary answer. A lunatic on a rampage needs to be stopped, not just impeded. I advocate the former, you advocate the latter.

And since most magazines don’t have a date stamp on them, how can a person know if a magazine is pre-ban or post ban? What if a person purchases what he or she thinks is a pre-ban magazine but it really is a post-ban magazine? Should that person be thrown in jail with murderers and rapists because of a piece of metal or plastic with a spring in it? You advocate that they should.

Congratulations Larry, your philosophy makes felons out of law abiding citizens while at the same time doing nothing to stop the actual criminals.

To guarantee that there would never be another Tucson or Sandy Hook, we would probably have to make it a capital offense to so much as look at a gun. And that would create serious 2nd Amendment, 8th Amendment and logistical problems.

Really? I would think that someone who is a judge would understand the difference between prevention and punishment. I am sure there have been several people who have gone through your courtrooms over the years and were found guilty of a crime.

So, I have to ask, did the presence of those laws prevent those individuals from commiting those crimes? Of course not. Those laws were there to punish those law breakers, not prevent them.

Punishment is, to use a legal Latin term, ex post facto, or after the fact. It is a logical error to try and put forth the argument of preventing another mass shooting by outlawing mass shootings. The last time I checked mass killings were illegal, yet they happened, did they not?

I notice that you carefully omitted from your piece any reference to individuals exercising their right to keep and bear arms who actually prevent killings from going on, such as in the case of the Oregon mall shooting. Or any of the thousands of cases each year where individuals used the standard magazines that come with their rifles or handguns to protect their lives from an assailant wishing to do them harm.

So what’s the alternative? Bring back the assault weapons ban, and bring it back with some teeth this time. Ban the manufacture, importation, sale, transfer and possession of both assault weapons and high-capacity magazines. Don’t let people who already have them keep them. Don’t let ones that have already been manufactured stay on the market. I don’t care whether it’s called gun control or a gun ban. I’m for it.

Why is it that you want to treat law abiding citizens as criminals?

Criminals are by definition those who do not obey a law. They don’t care that you make certain magazines illegal. They don’t care that you make certain cosmetic features illegal. They don’t care that murder is illegal.

Your proposed ban has no effect on criminals, but does affect law abiding individuals. Simply put, you have it backwards.

How is theft of property from a law abiding citizen going to prevent crime? So all the law abiding gun owners in the US now need to be stripped of their personal property and their ability to protect themselves and their families based on your false premise that it will actually prevent crime from happening?

I say all of this as a gun owner. I say it as a conservative who was appointed to the federal bench by a Republican president. I say it as someone who prefers Fox News to MSNBC, and National Review Online to the Daily Kos. I say it as someone who thinks the Supreme Court got it right in District of Columbia vs. Heller, when it held that the 2nd Amendment gives us the right to possess guns for self-defense. (That’s why I have mine.) I say it as someone who, generally speaking, is not a big fan of the regulatory state.

Really, you say it as a gun owner? So perhaps you can explain why somehow your firearms are exempt from theft via force of law? Is it because your firearms don’t have cosmetic features such as a flash hider, or a detachable magazine, or a pistol grip, or an adjustable stock?

Since your argument is not based on objective criteria, and instead based on an arbitrarily picked number, what is your defense if someone posts an op-ed piece saying that all firearms that can hold more than one round should be banned?

Your argument now collapses like a house of cards. Since 1 is as arbitrary as 10, you now have no argument as to defend your position.

Advocating theft of property by the state sure sounds like you are in fact a “big fan” of the regulatory state What can be more regulatory than outright confiscation?

I even say it as someone whose feelings about the NRA mirror the left’s feelings about Planned Parenthood: It has a useful advocacy function in our deliberative democracy, and much of what it does should not be controversial at all.

And I say it, finally, mindful of the arguments on the other side, at least as I understand them: that a high-capacity magazine is not that different from multiple smaller-capacity magazines; and that if we ban assault weapons and high-capacity magazines one day, there’s a danger we would ban guns altogether the next, and your life might depend on you having one.

Well, Larry, the second that anyone agrees to an arbitrary limit to the number of rounds that fit into a magazine, well, they then allow their rights to be infringed. The right of the people to keep and bear arms becomes a privilege to keep and bear arms. Fortunately, though, the name of thost first ten Amendments are the Bill of Rights, not Bill of arbitrarily picked limits by a San Diego judge.

But if we can’t find a way to draw sensible lines with guns that balance individual rights and the public interest, we may as well call the American experiment in democracy a failure.

What exactly is the “public interest”? You don’t define what that is, or what entity we can ask to determine what those interests are.

However, the public is comprised of individuals. Individuals have rights. Therefore your false “balance” between individual rights versus the “public interest” is a contradiction in terms. Your argument is that somehow individuals should have some of their rights taken away (taken away is a more clear description of your so called “balance”) to the benefit of the “public”.

There is just no reason civilians need to own assault weapons and high-capacity magazines. Gun enthusiasts can still have their venison chili, shoot for sport and competition, and make a home invader flee for his life without pretending they are a part of the SEAL team that took out Osama bin Laden.

Those rights are funny things. A right expressed in long form really is a “right to be left alone”. A right is something that an individual owns, such as their right to free speech, or freedom of assembly, or of the press, etc. A right is the property of the owner and as such can’t be taken away, however it can be infringed upon (as you have already advocated as such).

Conversely, a privilege is something that I do not own and is something that I get from another party. A privilege requires permission to use something that is owned by someone else.

Please read the next statement, multiple times if necessary:

I, and any other free individual, have the right to keep and bear arms.

Fortunately, the right to keep and bear arms doesn’t require me to justify to you or any other third party why I need it. I don’t need to ask permission from you to invoke that right since asking permission implies that it is a privilege. That is a logical error since I don’t need to ask permission from your or any third party for something I already own. You can have your opinion that I or any other free individual shouldn’t have the right, however your opinion doesn’t trump my right.

It speaks horribly of the public discourse in this country that talking about gun reform in the wake of a mass shooting is regarded as inappropriate or as politicizing the tragedy. But such a conversation is political only to those who are ideologically predisposed to see regulation of any kind as the creep of tyranny. And it is inappropriate only to those delusional enough to believe it would disrespect the victims of gun violence to do anything other than sit around and mourn their passing. Mourning is important, but so is decisive action.

Congress must reinstate and toughen the ban on assault weapons and high-capacity magazines.

No magazine ban will stop a killer.
No cosmetic feature restriction on a rifle will stop a killer.
Infringing upon a law abiding citizen’s rights will not stop a killer.

What will stop a killer? An armed victim.

As the judge in the Jared Lee Loughner case, you must have known that one of the brave individuals who tackled Loughner that day was a gentleman named Joe Zamudio. Zamudio was was legally carrying his Ruger P95 sidearm that day.

What size magazine did Zamudio have in his P95? A 15 round magazine.

Zamudio is a hero. Loughner is a murderer.

Zamudio rushed in to protect lives knowing that he had 15 rounds in his magazine at his disposal if needed to stop a murderer. Lougher used his sidearm and magazines to murder people.

Yet if a ban was implemented as you suggest, and if Zamudio’s magazine was made after an arbitrary date, you would regard them both as felons.

And that, sir, is the insanity of your argument.