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.
- Second
Amendment to the US Constitution, adopted December 15, 1791
Today I want to address
a very controversial issue in the media and our country today: gun control. I
want to reveal from the outset that I am a strong supporter of the 2nd
Amendment; I believe it should be read broadly, and any limitations should not
be on the arms themselves, but rather access to them. I’ll explain as I
continue.
Let’s start from the
beginning. When analyzing any legislation, and don’t forget that the Bill of
Rights was the first bit of Legislation approved by the new Congress; we must
look at several factors. I undertake study in the same way a Court might, using
statutory interpretation. A key concept I learned in law school was importance of
punctuation and phraseology. This is how I construct the above legislation,
whose wording and style was confirmed by Thomas Jefferson and adopted by the
States.
First, we find which
the key phrase is and which the modifier is. As I read the clauses, the main
clause is “the right of the people to keep and bear arms shall not be
infringed.” It is modified, meaning the main clause stands alone without it and
it is merely an addition, by the phrase “A well regulated militia being
necessary to the security of a free state”. Therefore, as I read and understand it, the right is absolute. The
reasoning, at least partially, is the need for a well regulated militia and
their impact on security. Now please, don’t misunderstand me, I do believe that
the government is authorized to regulate that right, just as they are other
rights.
Let me step aside and
share another important aspect of my perspective. I am a private defense
attorney by trade. Generally speaking, I read the Bill of Rights, and all laws
and rights, broadly. For those amendments that apply directly to the people, I
will always hold that principle to be true. Whether it’s the right to free
speech, to be free from searches and seizures, to remain silent and not present
evidence, to have an attorney, to have your case heard by a jury, to be free
from excessive bail or punishment, or anything else- it should be read broadly.
Ok- back to the topic:
another aspect of statutory interpretation is to look at legislative history.
Unfortunately, there is no Congressional legislative history about the Second
Amendment. There are some legislative histories from the States, but those who
understand the process of ratification know that the State’s cannot change the
wording of the Amendment. It becomes basically an up or down vote. Many say
this was done purposefully, to hide the true history; but others point to the
lack of ANY records- they just weren’t kept as well as they are now. No notes
whatever were made of the Senate's debate in Congress, and the stenographer for
the House of Representatives was a drunk. Stories tell of a man who often
daydreamed and filled his journals with doodles and sketches, instead of the
remarks of the members.
However, we can look at
the history of the country and infer some legislative intent from that.
American history is shared with English history. When William and Mary took the
throne of England in 1688 after the Glorious Revolution, one of the first acts
of Parliament was to restore the constitution with its provision that every man
may arm for self-defense. One hundred
years later, the British had taken a more mercantilist policy with the colonies.
It created a fall in prosperity and a return of hardships. Things got so bad
that British troops had to be sent to suppress riots and collect taxes. Between
1768-1775, the British policy was to disarm the American colonists by whatever
means possible. They used entrapment, false promises of safekeeping, banning
imports, seizure, and eventually shooting persons bearing arms to accomplish
this goal. In 1774, the British embargoed shipments of arms to America. It is
said that the Revolutionary War began when militiamen met British troops at
Lexington and Concord. The reason the British were marching on those towns to
confiscate arms and powder. The colonists considered these actions a violation
of their constitutionally guaranteed right, as Englishmen- see above, to have
and use arms for self-preservation and defense. In 1777, William Knox, Under
Secretary of State for Colonial Affairs, argued that: The Militia Laws should
be repealed and none suffered to be re-enacted & the Arms of all the People
should be taken away, & every piece of Ordnance removed into the King's
Stores, nor should any Foundry or manufacture of Arms, Gun-powder, or Warlike
Stores, be ever suffered in America, nor should any Gunpowder, Lead, Arms or
Ordnance be imported into it without License; they will have but little need of
such things for the future, as the King's Troops, Ships & Forts will be
sufficient to protect them from danger. This is the sentiment that set the
basis for the later amendment.
After the colonies won
their freedoms, and the states organized to repair the Articles of
Confederation, there were other concerns. The young nation was barely holding
itself together. There were already differences arising between the Northern
and Southern states regarding slavery. After being released from a tyrannical
government which sought to change their way of life, the Southern states were
concerned that the Northern states would seek to do the same. This was the
source for the 3/5ths compromise and, some say, the second amendment. By
assuring the Southern States that they could keep their arms, the Northern
States were essentially saying that their freedom would be assured. On December
15, 1791, the second amendment was adopted.
Initially, states tried
to enact gun control laws, but a pervasive sense of individual right spread.
The first relevant state court decision was Bliss v. Commonwealth (1822, KY). The Kentucky court held
that "the right of citizens to bear arms in defense of themselves and the State
must be preserved entire,..." This holding was unique because it stated
that the right to bear arms is absolute and unqualified.
Gun control didn’t
arise as a national issue again until the mid-19th century. Once
again, it involved slavery. In Dred Scott v. Sanford, Chief Justice Roger Taney wrote for the majority: "It would give to
persons of the negro race, who were recognized as citizens in any one State of
the Union ... the full liberty ... to keep and carry arms wherever they
went." While this was in the dicta of the case, it can be read to mean any
citizen has that right. They continued to arise in response to Jim Crow laws in
the Reconstruction South. A careful and treacherous path was walked by the
Supreme Court in the application of the 14th Amendment. As we know
now, it would be 100 years before those issues would be settled.
In the 20th
century, the rise of organized crime, and the guns they used, during
Prohibition led to the first National Gun control law: the 1934 National Firearms
Act. This legislation served to tax and regulate automatic firearms as well as
certain firearms components that were commonly used by organized crime at the
time. Since 1934, fully automatic weapons fall under the regulation and
jurisdiction of the Bureau of Alcohol, Tobacco and Firearms (ATF) (Now the Bureau of Alcohol, Tobacco, Firearms, and Explosives).
The Supreme Court upheld the National Firearms Act of 1934 in US v. Miller, but
clarified that the Second Amendment applies to the right to bear military arms
as well as arms that the military may use. The NFA of 1934 was amended in 1986.
The Hughes amendment to existing law made it illegal to sell automatic firearms
made after May 19, 1986 to civilians. Any automatic firearms already in
civilian hands could still be transferred, but would continue to fall under the
regulation of the National Firearms Act of 1934.
The next milestone was
the Gun Control Act of 1968. The initial act was a response to the
assassination of John F. Kennedy. The legislation expanded licensing of
dealers, made it illegal to mail order long guns, and it also established that
convicted felons, drug users, and the mentally ill can be prohibited from
possessing firearms. The Crime Control Act of 1990, among other things, established
gun-free school zones and penalties for those carrying or discharging firearms
in these zones. This was followed by the Brady Handgun Violence Prevention Act
in 1993. Named after James Brady, President Reagan's Press Secretary, who was
paralyzed by an assassin’s bullet, meant for the President; the Act established a five day waiting period and mandatory
background check for handgun purchases as well as setting up the National
Instant Background Check System (NICS) that is used today for every purchase
performed through an FFL dealer. A year later, the Violent Crime Control
and Law Enforcement Act, also known as the Assault Weapons Ban, was signed into
law. The Act specifically banned certain automatic
firearms and other firearms based on outward appearance rather than functional
characteristics. This legislation expired in 2004 and studies are mixed about
its effectiveness.
In response
to the Virginia Tech shootings, in 2007 Congress passed the NICS Improvement
Act. The purpose was to expand funding for NICS and to encourage states to
submit mental health records to the NICS index. So far, NICS has been
underfunded, receiving less than 6% of the allotted funding in the past few
years, and a vast majority of the states have not been sufficiently providing
mental health records. The final two major moments in the history of gun
control occurred in 2008 and 2010, and both are Supreme Court cases. In DC v.
Heller, the Supreme Court struck down D.C.'s handgun ban, and upheld the
individual right to bear arms, and clarified that it extends to arms that are
in "common use at the time" but did not cover "dangerous and
unusual weapons." In McDonald v. Chicago, the Supreme Court struck down
Chicago's handgun ban as unconstitutional, further building off of the Heller
decision and extended the Second Amendment to individual states.
That is the landscape of gun control
historically and where it stands now. But where do we go from here. After the
Theater shootings in Colorado and the Newtown shootings in Connecticut, there
has been a renewed call for more gun control laws. This is not uncommon
throughout the history of the country; neither is the result. More gun control
laws have not been proven to lower crime rates significantly. In fact, I have
not seen any confirmed correlation between these laws and crime rates.
Gun laws
focus on responsible citizen gun owners. Those that commit crimes with guns
don't use legally registered guns to do so; certainly not their own guns. I
will certainly agree that changes need to be made, but I don't think the new
plans address them. So what's in the President's new plan? These are the broad
strokes, they fit into two categories. First, actions by Congress and second,
actions by the Executive Agencies:
Proposed Congressional Actions
•
Requiring criminal background
checks for all gun sales, including those by private sellers that currently are
exempt.
•
Reinstating and strengthening the
ban on assault weapons that was in place from 1994 to 2004.
•
Limiting ammunition magazines to 10
rounds.
•
Banning the possession of
armor-piercing bullets by anyone other than members of the military and law
enforcement.
•
Increasing criminal penalties for
"straw purchasers," people who pass the required background check to
buy a gun on behalf of someone else.
•
Acting on a $4 billion
administration proposal to help keep 15,000 police officers on the street.
•
Confirming President Obama's
nominee for director of the Bureau of Alcohol, Tobacco, Firearms and
Explosives.
•
Eliminating a restriction that
requires the Bureau of Alcohol, Tobacco, Firearms and Explosives to allow the
importation of weapons that are more than 50 years old.
•
Financing programs to train more
police officers, first responders and school officials on how to respond to
active armed attacks.
•
Provide additional $20 million to
help expand the a system that tracks violent deaths across the nation from 18
states to 50 states.
•
Providing $30 million in grants to
states to help schools develop emergency response plans.
•
Providing financing to expand
mental health programs for young people.
Executive actions
•
Issuing a presidential memorandum
to require federal agencies to make relevant data available to the federal
background check system.
•
Addressing unnecessary legal
barriers, particularly relating to the Health Insurance Portability and
Accountability Act, that may prevent states from making information available
to the background check system.
•
Improving incentives for states to
share information with the background check system.
•
Directing the attorney general to
review categories of individuals prohibited from having a gun to make sure
dangerous people are not slipping through the cracks.
•
Proposing a rule making to give law
enforcement authorities the ability to run a full background check on an
individual before returning a seized gun.
•
Publishing a letter from the A.T.F.
to federally licensed gun dealers providing guidance on how to run background
checks for private sellers.
•
Starting a national safe and
responsible gun ownership campaign.
•
Reviewing safety standards for gun
locks and gun safes (Consumer Product Safety Commission).
•
Issuing a presidential memorandum
to require federal law enforcement to trace guns recovered in criminal
investigations.
•
Releasing a report analyzing
information on lost and stolen guns and making it widely available to law
enforcement authorities.
•
Nominating an A.T.F. director.
•
Providing law enforcement
authorities, first responders and school officials with proper training for
armed attacks situations.
•
Maximizing enforcement efforts to
prevent gun violence and prosecute gun crime.
•
Issuing a presidential memorandum
directing the Centers for Disease Control and Prevention to research gun violence.
•
Directing the attorney general to
issue a report on the availability and most effective use of new gun safety
technologies and challenging the private sector to develop innovative
technologies.
•
Clarify that the Affordable Care
Act does not prohibit doctors asking their patients about guns in their homes.
•
Releasing a letter to health care
providers clarifying that no federal law prohibits them from reporting threats
of violence to law enforcement authorities.
•
Providing incentives for schools to
hire school resource officers.
•
Developing model emergency response
plans for schools, houses of worship and institutions of higher education.
•
Releasing a letter to state health
officials clarifying the scope of mental health services that Medicaid plans must
cover.
•
Finalizing regulations clarifying
essential health benefits and parity requirements within insurance exchanges.
•
Committing to finalizing mental
health parity regulations.
•
Starting a national dialogue on
mental health led by Kathleen Sebelius, the secretary of health and human
services, and Arne Duncan, the secretary of education.
Some of
these I agree with. I support requiring criminal and mental health background
checks for ALL gun purchases (as do 74% of NRA members) and closing the
gun-show and private sale loopholes. Tied to this are the expansion of access
to information for those background checks, incentives for states to comply,
and training on proper procedures for background checks. I also support
criminal penalties for “straw purchasers,” another loophole in a way. This is
the way that many guns used in gun crimes are acquired. Of course, I also
support keeping first responders on the street, training new first responders,
developing first response plans for schools and other groups, and most
importantly, additional financing to expand mental health programs for
young people and adults. Most of these are supported in large numbers by the
American public AND even NRA members. The commonality, you will see, is
addressing the true problems our country has; NOT limiting access to a certain
kind of weapon, number of weapons, number of ammunition, or other policies that
I think infringe on the basic, absolute right contained in the Constitution.
I want to
address some fallacies out there. There is a line I love from Fight Club
to describe this problem. Tyler, after examining the safety card on an airplane
comments, “An exit-door procedure at 30,000 feet. Mm-hmm.
The illusion of safety.” Let's talk about the
“assault weapons” ban. The picture below is a perfect example of the lack of
logic in the assault weapon ban: the fallacy of it.
I call the “assault weapons ban” the ban on scary guns. If you make it out of or add plastic, a gun gets a little scarier. If you use a pistol grip, scarier still. But it doesn't change the action of the weapon. IT CHANGES NOTHING.
What about
limiting clip size to less than 10? Again, what does this do? To someone who
knows how to use the weapon, like the person in the video below, the size of
the clip won't matter.
In this
video, the person fires more than 30 rounds, from 6 round clips, in less than
15 seconds (and according to the claim, gets a perfect score) If they had a
thirty round clip, what difference would that really make? I can't see the
logic in limiting the size of magazines. Again, that's coming from the
perspective that the government doesn't have the authority to take my rights
away unless there is a reason to do so.
I would be
remiss without including, and here is my tangent down the rabbit hole, my further
perspective on history and the future. I have been a student of history. When I
look back, I see that governments of nations that seek to remove their citizens
rights to own and possess weapons, are the types of governments that the
citizens needed weapons to protect themselves from. I am certainly not
advocating violent overthrow of the government, although I have been accused of
that before. Again, I am coming from the perspective that the government does
not have the authority to remove what I consider an absolute right without a
justification. I have no criminal background and no history of mental health
issues. I am not a risk to myself or society. I seek the means to protect
myself from any harm brought from any actor- whether a criminal, an individual,
or anyone else who has no right of authority over me. That's the end of my conspiracy rant.
My solution
comes down to this: the REAL solution
is not to limit a responsible citizenry from embracing an absolute right, one
that is no different from the absolute right to be free from search and
seizure, to not be limited by the government, to be represented by counsel, or
to not testify against themselves- all subject to limitation when justified by
the government. The solution is to address the real problems: address the
mental healthcare deficit in this country, limit access to guns for dangerous
people, and make punishments for those who break the law. That is the only “gun
control” that I will support. What you will find is that there is a strong
correlation between countries which make mental healthcare a priority and those
that have low numbers of gun deaths. Similarly, countries which make criminal
and mental healthcare background checks mandatory for all weapons and focus on
training gun owners also have lower numbers of gun deaths. Finally, those which
raise the penalty for illegally transferring a gun, illegally selling a gun, or
having a gun when the owner/holder isn’t allowed to posses one ALSO have lower
gun death rates. What you won’t find, even in countries with the strictest gun
possession laws, is a 0% death rate by firearms. Gun ownership is an ABSOLUTE
right in this country, so let’s focus on fixing the real problem rather than
paying lip service and offering “solutions” that won’t make a difference.
Please
comment below- I want to hear your opinions. Then like and share this post so
your friends and peers can join the conversation.
© Robert
Cheek, 2013
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