Defining guns and deciding if guns are really the problemby Mark B. Evans on Jan. 25, 2013, under Uncategorized
There’s room in the 2nd Amendment to add more gun regulation
By Mark B. Evans
In reading some of the comments on Sarah’s Garrecht Gassen’s column today in the Arizona Daily Star, a few absolutists chimed in that the 2nd Amendment is very specific, it prohibits ANY limitations on arms ownership.
Which got me to thinking, the 2nd A does not define arms. Arms have evolved over the years. At the time of the 2nd A’s writing, all personal arms were single shot muzzle loaders.
If the absolutists are correct, then we should be able to possess any portable arm, sub-machine guns (my favorite is the BAR, which also happened to be the preferred weapon of Clyde Barrow), RPGs, M203 grenade launchers, mortars, or even the greatest gun of them all, the Ma Deuce, the M2 .50 caliber machine gun.
Turns out, you can own those kinds of weapons, but the laws governing their purchase and ownership are very strict:
Among other things, federal law:
1. Requires all machine guns, except antique firearms, not in the U.S. government’s possession to be registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF);
2. Bars private individuals from transferring or acquiring machine guns except those lawfully possessed and registered before May 19, 1986;
3. Requires anyone transferring or manufacturing machine guns to get prior ATF approval and register the firearms;
4. With very limited exceptions, imposes a $200 excise tax whenever a machine gun is transferred;
5. Bars interstate transport of machine guns without ATF approval; and
6. Imposes harsh penalties for machine gun violations, including imprisonment of up to 10 years, a fine of up to $250,000, or both for possessing an unregistered machine gun.
Plus, there are very strict ATF rules for the ownership and use of rockets and grenades. While you can own an RPG launcher, buying and using the grenades for it is a bit cumbersome (actually, more than a bit).
The above all sound like very sensible laws (though the one barring purchasing of new weapons would have to amended) and since the NRA presumably has acquiesced to them (no court challenges to them that I could find online) and they are arms just like an AR-15 or .45 semi auto are, then perhaps the Congress should simply adopt and apply the rules for machine guns and grenade launchers to all firearms. No one’s right to own any firearm would be restricted.
By having rules for one type of arms but not others implies there are differences in the lethality and the danger to the public from weapon to weapon and therefore differences in what the 2nd Amendment would define as “arms.” Therefore, a reasonable society can impose restrictions in ownership and use of those weapons, depending on their defined use and lethality.
If that’s not the case, then the limitations on ownership of machine guns and rocket launchers is as unconstitutional as it is for assault rifles, hand guns, extended clip magazines, and so on.
The Adam Lanzas and Jared Loughners of the world should be legally allowed to own not just an AR-15, but an M-16. What’s the difference other than the rate of fire?
However, if we agree as a society that some arms are different than others and require different regulation, than we should be able to draw the line in different places as circumstances warrant. Right now, the line seems to be drawn a little too high, allowing unregulated ownership of arms with considerable lethality. Perhaps it’s time to lower the line?
Or perhaps we should take the side of of the absolutists and the Constitutional originalists, who assert the Constitution is not a living document, does not change with the times and means exactly what it says. Since the Founders did not know of breech loading or repeating firearms at the drafting of the 2nd Amendment, we should assert that only the personal “arms” known to them at the time can be possessed without regulation – single shot muzzle loaders. You can own as many as you want. All others are subject to restriction and regulation.
I find it hard to believe that any of the Founders, if alive today, would look at Sandy Hook or Aurora, or the 10,000 homicides a year in this country, then look at the 2nd Amendment, and say, “Well, that’s the price you have to pay for liberty.”
If they had known what guns would become, I think they might have written the amendment a little differently.
UPDATE: A friend told me I should re-read the SCOTUS District of Columbia vs. Heller ruling, penned by none other than Antonin Scalia, that there was an argument in there similar to mine above. From the Cornell Law School summary of the ruling:
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56. http://www.law.cornell.edu/supct/html/07-290.ZS.html
Here’s the text of the ruling the summary draws from:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
In terms of my argument, the key phrase from the above is “historical tradition of prohibiting the carrying of dangerous and unusual weapons.” It seems it’s time for the country to have a rational debate about which weapons should be defined as “dangerous and unusual.”
And, in case you want to argue what the 2nd Amendment “really” means, your opinion doesn’t matter, only the opinion of the Supreme Court of the United States matters. And the court says the right is not unlimited. We just need to figure out what the boundaries of the limits are.
Considering the wholesale slaughter via firearms in this country, it would seem the boundaries are too broad.
. . .
Is it the guns, or the drugs?
By Emil Franzi,
Southern Arizona News-Examiner
Mark’s constitutional points are basically correct. His historical revisionism is fantasy. And his practicality suffers.
No amendment is absolute. Laws against the reckless discharge of a firearm in crowded circumstance are obviously legitimate as are background checks to keep felons from at least purchasing weapons legally. They will still do so illegally as so many do now with illegal drugs. Even confiscation, if physically feasible, would solve little. Other things will help more.
Tightening existing statutes would help. There are few prosecutions of “straw purchasers” and many states are lax at posting the names of prohibited owners in the FBI data base. This would help a little as would holding more gun owners criminally and civilly liable for carelessness in storage and handling. That doesn’t mean keeping them locked and unloaded. It does mean not leaving them around where it’s easy to steal them like under a car seat in an unlocked vehicle. Many often fail to keep the numbers of their firearms somewhere that can be accessed if they are stolen. That is one of several habits more responsible gun owners need to acquire.
Saying that, it is also time to put a sock in it about gun ownership in the first place and quit making the usual know-nothing and ignorant attacks on gun owners. The NRA is a successful lobby because its elected leaders do what their members want them to – defend their rights. That the NRA spent $20 million or so in the last election is chump change – that’s about the cost of a US Senate race in a middle sized state. The real clout the NRA has is the size of its membership which the anti-gun zealots and yahoos have added over a hundred thousand to in the last 30 days. Congressman Giffords and Mark Kelly will impress us when they hit their first one million dues paying members, even more so if they allow those members to choose the leaders of their group as the NRA does.
Those who complain about “gun violence” need to better define it and then explain why it is worse than other kinds of violence. They should also recognize there are times when it is necessary, either when resorted to by a cop or a private citizen. Few argue against the former. The argument appears to be who is authorized to perform it.
Mark claims we are a “murderous society” but we have far less violent crimes than many countries where guns are less available. And less murders. We have more “gun violence” because we have more guns. The victims could probably care little. All those little children murdered in most school shootings could in many cases been slaughtered by other means than an “assault rifle” or a “semi-auto”. A double barrel shotgun comes to mind or even a ball bat. The difference between the fates of Carthage and Hiroshima are primarily in the technology, not the end result.
While arming teachers is debatable, one thing isn’t if real safety improvement is wanted. Add to fire drills other categories – ie, what to do if an armed nutter appears. But before I discuss anything else about firearms, I have a simple request to make of Mark and others. I want to add two more items to the discussion that have far more relevance to dead kids than others.
The first is releasing to the public the toxicology reports one all of the mass shooters or those attempting similar acts for the last ten years. How many were on prescription meds and is there a connection? Before I hear anymore whining about the “Gun Lobby”, how about Big Pharma? Think we ought to look there first? I am deafened by the silence on that from Joe Biden and others.
The second involves something that violently kills more kids, and adults, still than anything else – drunk driving. I would like a car purchaser to at least have the same legal restrictions I do when I buy a gun.
Gun buyers require a background check when doing business with a dealer. While none is required from two individuals undergoing a private purchase, they ARE mandated by law to only sell or trade any firearm to a resident of their own state. Private purchases require something like a driver’s license or similar ID.
Car purchasers don’t.
You can have multiple DUIs, done time, even have outstanding warrants but I know no of no requirement that you need show anything to a car dealer if you have the cash.
Simple law. Automotive lobby too big? I don’t even know if they’d object.
Put those on that “table” and then call me about the gun stuff.