Reasonable gun regulation is completely compatible with the Supreme Court’s understanding of the Second Amendment.
Stepping up to the plate. Image from Ed Christman / Flickr.
Lamar W. Hankins and Alan Pogue are Thorne Dreyer‘s guests on the syndicated Rag Radio show, first airing Friday, April 13, 2018, from 2-3 p.m. (CT) on KOOP 91.7-FM in Austin, and streamed live: http://www.koop.org/listen-now. They will discuss Hankins’ article, below, and Pogue’s recent Rag Blog article, “My General Theory of Relative Violence” — and their somewhat divergent views on gun violence and gun control.
For those who have taken time to look into the history of the Second Amendment (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”), it is apparent that the Supreme Court in its 2008 Heller decision did a poor job in understanding what the founders meant by “militia.”
Some historic research suggests that the purpose of the militias in colonial times was primarily two-fold: to capture runaway slaves and return them to their owners; and to kill or enslave the native inhabitants of this land, pushing those who survived into enclaves mostly west of the Mississippi River. But whatever the case may be, that matter is resolved for now. We should be focusing instead on gun safety/gun control regulation that is constitutional.
Listening to the gun safety/gun control debate in this country might cause a person to think that there is no gun control or gun safety regulation in existence. Nothing could be further from the truth. The Supreme Court’s Heller decision made clear that reasonable gun regulation is completely compatible with its understanding of the Second Amendment. What Heller did was find that a Washington, D.C., law banning handguns in the home and requiring other firearms to be stored unloaded or locked went too far and was unconstitutional under the Second Amendment.
But the court said further that “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.”
There are virtually total prohibitions
on some weapons.
It is reasonable to assume that similar regulations would not violate the Second Amendment. In fact, there are virtually total prohibitions on some weapons, such as sawed-off shotguns, and automatic rifles or pistols, along with gun accoutrements such as silencers, unless deep background checks result in the issuance of a license to possess such a gun or device. Some states absolutely prohibit such weapons and accessories. There are also regulations concerning ammunition and high-capacity magazines in some jurisdictions.
For 10 years (1994-2003), federal regulations prohibited the sale and manufacture of 18 specific models of assault weapons (the “assault weapons ban”), as well as a ban on any firearms containing certain military-style features, such as a bayonet mount, a flash suppressor, or a folding stock. High-capacity magazines capable of holding more than 10 bullets were banned. Those who already owned such weapons and accessories were allowed to keep them.
Research shows that the level of carnage in mass shooting events was significantly reduced during the ban, though death rates from guns of all types did not appear to be affected. So the objective of the assault weapons ban — to reduce both the frequency and lethality of mass shooting events — can be seen as a success, though correlation (as we all know) is not necessarily causation. Since the ban ended, however, mass shootings have risen alarmingly. Of course, this increase could be related to the way such guns are promoted by manufacturers and sellers, the rise of video games in which such weapons are featured, and the publicity surrounding their use by the military since 9/11.
The Gun Control Act of 1968 and the 1994 Brady Handgun Violence Prevention Act prohibit certain people from possessing a firearm:
- Persons under indictment for, or convicted of, any felony crime punishable by imprisonment for a term exceeding one yea
- Fugitives from justice
- Persons who are unlawful users of, or addicted to, any controlled substance
- Persons who have been adjudicated as mental defectives or have been committed to a mental institution
- Undocumented persons who were admitted to the United States under a nonimmigrant visa
- Persons who have been dishonorably discharged from the Armed Forces
- Persons who have renounced their United States citizenship
- Persons subject to certain types of restraining orders, such as for threats of bodily harm
- Persons who have been convicted of a misdemeanor crime of domestic violence
It is also a felony for anyone to sell or transfer any firearm to a person knowing or having “reasonable cause” to believe that the person receiving the firearm is prohibited from firearm possession.
States have enacted regulations about where and when firearms can be carried.
States have enacted various regulations about where and when firearms can be carried. Some states allow legally owned guns to be openly carried in public; others require a permit or license to open carry; some states allow only hidden carry of legal guns; local governments may have more restrictive carry laws than the state; other states allow open carry when a person is engaged in certain activities such as hunting; some states allow open carry of long guns and/or hand guns, an important feature for farmers, ranchers, hunters, and others engaged in remote, backwoods, or wilderness activities.
The reality that many who are currently debating gun safety and gun control seem to forget or ignore is all of these constitutional regulations. The fact is that gun regulation is not a violation of the Second Amendment. Justice Scalia’s majority opinion in the Heller decision provided that “the right secured by the Second Amendment is not unlimited.” The only question we need to ask is what gun regulation is reasonable and constitutional, and serves a public interest.
Justice Scalia’s Heller opinion also provided that the Second Amendment does not protect “the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.” The Second Amendment is not violated by reasonable regulations that advance the public’s interest in safety. All patriots can and should support sensible gun regulations. What we should be debating is the nature of those regulations.
While I favor a complete ban on assault-style weapons, with a buy-back provision for all those now in existence in this country (as Australia did), there is room for compromise. For instance, anyone who wants to possess an assault-style weapon could be required to undergo a deep background application process that includes a list of specified criteria that should be met, including a justification for possessing such a weapon. If a person passes the deep background investigation, he or she could be licensed to possess an assault-style weapon. Those who own such a weapon and fail the investigation would have their assault-style weapon bought from them at their original purchase price or at an established fair price if proof of original cost is not available.
Owners of assault-style weapons should be required to purchase liability insurance.
In addition to licensing, owners of assault-style weapons should be required to purchase liability insurance that would cover any deaths caused by their weapon, no matter who used it to kill another unless the killing was done in self-defense. Coverage might be in the amount of $1 million per death. Proof of such insurance would be required before the weapon could be purchased or possessed, now and in the future.
I’m willing to compromise on ownership of assault-style weapons so long as those compromises provide as much protection for our young people as the Second Amendment provides for gun ownership. If cars can be regulated in these ways in the interest of public safety, there is no reason guns can’t be similarly regulated, consistent with the Second Amendment.
Another important gun safety regulation is to prohibit the transfer of a gun of any kind without a background check and licensure. This means we would close the gun show loophole, as well as the private transfer of weapons that are subject to background checks when sold by a commercial enterprise. Concomitant with such regulation, we need serious penalties for possession of an unlicensed gun, with exceptions for emergency or exigent circumstances, such as personal safety or the safety of another.
There are other regulatory measures worth discussing that will likely reduce gun violence according to a recent well-researched article by Robert Gebelhoff published in the Washington Post.
- ban high-capacity magazines
- keep guns away from children and youth by raising the legal age of purchase and requiring effective, secure gun storage
- institute a buy-back program for all guns and high-capacity magazines
- limit the number of guns that can be purchased at any one time, such as one handgun a month
- hold gun dealers accountable for record-keeping and otherwise complying with the laws and regulations
- repeal the three-day requirement to complete background checks so that all purchasers are thoroughly vetted and no one can purchase a gun in less than 48 hours
- prohibit sales to anyone convicted of a domestic-violence offense
- strengthen mental health reporting
- implement licensure and safety training for all gun purchases
All of the above measures have been tried in at least one state and the data suggest that they have been effective in reducing gun violence toward others, as well as suicide by gun.
Based on the history of the federal assault weapon ban, such regulation should go a long way toward protecting school students from mass shooting events. At the least, this and related regulations are worth debating, and we should not waste time debating the Second Amendment, which clearly allows our elected representatives to pass reasonable gun safety and gun control regulations. Our purpose should be to protect the lives of our children, not guns.
[Rag Blog columnist Lamar W. Hankins, a former San Marcos, Texas, City Attorney, also blogs at Texas Freethought Journal and about death and dying at the Good Death Society Blog. This article © Texas Freethought Journal, Lamar W. Hankins.]
- Read more articles by Lamar W. Hankins on The Rag Blog.
Most of what Mr. Hankins says in this piece should be filed under, “It’s About Damn Time Somebody Said That!” I want to make something explicit he leaves implicit: it’s true that the Bill of Rights prevents the government coming to take away your deer rifle or your duck gun.
However, the part of the Bill of Rights that keeps “gun grabbing” a fantasy from the NRA skunk works is not the Second Amendment. It’s the Fifth Amendment, which guarantees that if the government is going to take your property in pursuit of a public purpose, it must fairly compensate you for the loss of that property.
There are simply too many deer rifles and duck guns in private hands in this country for the government to have the money on hand to buy them and the Fifth Amendment says they must be bought, not seized.
I’m sorry that the SCOTUS has allowed the right to keep and bear arms to come unmoored from a well-regulated militia. If that were not the case, I would add to the writer’s policy prescriptions that those who keep an assault rifle should have to muster a couple of times a year and train up to become efficient cannon fodder, to delay invading forces long enough for the Army to get ready.
I’m not sure what nation the invading forces are likely to represent, but there would be time to game out lots of possibilities.