Jim Stillman
Randy InmanA Rational Gun Control Policy
December 4th 2007 17:42
I have written two articles on the meaning of the Second Amendment of the United States Constitution, the latter noting that, for the first time, the Supreme Court had accepted a case for review that would, perhaps, explain the original attempt of the Amendment. I have received generally complimentary comments on the articles but also a criticism that I had attempted to discuss the legal controversy without stating a position. These comments are correct.
But now I shall.
There are two distinct issues involved. First, the original meaning of the Second Amendment and, second, whether gun ownership and possession should be strictly and closely regulated to the extent that such ownership and possession be discouraged,
The first issue may, in my opinion, be quickly resolved. The Amendment has an introductory phrase that is clear:
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.
Over the years, there have been two conflicting views of the Amendment, First that it applies to the "right to bear arms" in connection with a "well regulated Militia" and, second, that the Amendment is not a collective one but a statement as to the rights of every individual. I believe that the plain meaning of the words compel the former position. The Amendment does not grant an unlimited right to bear arms outside of a trained Militia.
This view is supported by the contemporaneous similar provisions adopted by the states. Most include the qualifying phrase, "a well regulated militia". On the other hand, as a liberal I am compelled to raise objections to my own beliefs, the Vermont formulation simply stated, "That the people have a right to bear arms for the defense of themselves and the State..." and New Hampshire's: "Congress shall never disarm any citizen, unless such as are or have been in actual rebellion. Each of these refers to an individual's rights.
The advocates for the universal and unfettered right to possess any arms are, in my opinion, incorrect in relying on the Second Amendment. Even if the Amendment granted individual rights, unrelated to "a well-regulated militia", the possession of guns could and should remain subject to regulation.
For example, the First Amendment forbids any law interfering with the freedom of speech and of the press, yet the Courts have upheld laws against obscenity, libel, and slander. Language on radio or television is subject to fine and loss of license. The right of assembly has not prevented restrictions of peaceful protests of government action.
So the issue, in my opinion, is not how the Second Amendment is interpreted; the real issue and contentious one is the right of the Federal, state or local government to impose regulations and limits and, even, ban gun possession. This issue is not dependent on the Second Amendment. It is subject to common sense.
I believe that even the most fervent gun owner will agree that felons, persons with mental instability, children and, perhaps a few other groups should be forbidden to own, possess or carry firearms. Most persons would also agree that there is a distinction to be made between rifles commonly used for hunting and sub-machine guns, anti-tank rockets, and explosive devices.
I also believe that gun regulation should be on a local or, at least, state level. There are valid reasons to restrict guns in crowded cities, such as New York and Washington, which might not be so important in a sparsely settled area such as the Dakotas or Wyoming. It may be, in the opinion of local authorities, that rifles be freely permitted and handguns severely restricted.
The degree of regulation is subject to debate and it should be debated.
But the issues are not whether all weapons are banned or whether the ownership and possession of all weapons be allowed without restriction. Neither extreme position is feasible. There are too many guns "out there" to eliminate weapons. One cannot undo years of over-production and excess. Equally, it is unrealistic to expect that possession and use of such dangerous instruments be wholly free of restriction and control.
There is one rule that I would impose for all weapons. There must be registration of all weapons. Let those who perceive of a paranoid-induced scheme to seize their weapons relax. The purpose of registration would be to compel strict and absolute liability for all injuries or death caused by the weapon to be imposed, civilly and criminally, upon the registered owner.
Thus if a gun owner has his or her weapon stolen, or if the owner's child gets access to the weapon, the owner remains liable if anyone is injured or killed. Period. The concept of absolute liability due to a dangerous instrumentality is common place in the law. This will insure that the gun owner secures the weapons safely and that he or she will not be careless. The risk should be on those who insist on owning such weapons.
I, personally, would welcome a real debate, one based on reasonable regulation and safety.
Those who assert that their gun is never to be taken away or subject to reasonable control need not enter the discussion. Those who want their guns to protect themselves from the armed forces of the Federal government should image holding out against the firepower of the Air Force or an army division. It's not going to happen.
When the Second Amendment was written, there was a real fear of an occupying army or a despotic government army, armed with muskets. If such an army now existed that was a threat to the citizens, one or two gun owners, even if armed with assault weapons, will hardly be able to stop an organized national armed force. The paranoia has to stop and realistic approaches considered.
Let's get real. Let’s start offering rational solutions.
But now I shall.
There are two distinct issues involved. First, the original meaning of the Second Amendment and, second, whether gun ownership and possession should be strictly and closely regulated to the extent that such ownership and possession be discouraged,
The first issue may, in my opinion, be quickly resolved. The Amendment has an introductory phrase that is clear:
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.
Over the years, there have been two conflicting views of the Amendment, First that it applies to the "right to bear arms" in connection with a "well regulated Militia" and, second, that the Amendment is not a collective one but a statement as to the rights of every individual. I believe that the plain meaning of the words compel the former position. The Amendment does not grant an unlimited right to bear arms outside of a trained Militia.
This view is supported by the contemporaneous similar provisions adopted by the states. Most include the qualifying phrase, "a well regulated militia". On the other hand, as a liberal I am compelled to raise objections to my own beliefs, the Vermont formulation simply stated, "That the people have a right to bear arms for the defense of themselves and the State..." and New Hampshire's: "Congress shall never disarm any citizen, unless such as are or have been in actual rebellion. Each of these refers to an individual's rights.
The advocates for the universal and unfettered right to possess any arms are, in my opinion, incorrect in relying on the Second Amendment. Even if the Amendment granted individual rights, unrelated to "a well-regulated militia", the possession of guns could and should remain subject to regulation.
For example, the First Amendment forbids any law interfering with the freedom of speech and of the press, yet the Courts have upheld laws against obscenity, libel, and slander. Language on radio or television is subject to fine and loss of license. The right of assembly has not prevented restrictions of peaceful protests of government action.
So the issue, in my opinion, is not how the Second Amendment is interpreted; the real issue and contentious one is the right of the Federal, state or local government to impose regulations and limits and, even, ban gun possession. This issue is not dependent on the Second Amendment. It is subject to common sense.
I believe that even the most fervent gun owner will agree that felons, persons with mental instability, children and, perhaps a few other groups should be forbidden to own, possess or carry firearms. Most persons would also agree that there is a distinction to be made between rifles commonly used for hunting and sub-machine guns, anti-tank rockets, and explosive devices.
I also believe that gun regulation should be on a local or, at least, state level. There are valid reasons to restrict guns in crowded cities, such as New York and Washington, which might not be so important in a sparsely settled area such as the Dakotas or Wyoming. It may be, in the opinion of local authorities, that rifles be freely permitted and handguns severely restricted.
The degree of regulation is subject to debate and it should be debated.
But the issues are not whether all weapons are banned or whether the ownership and possession of all weapons be allowed without restriction. Neither extreme position is feasible. There are too many guns "out there" to eliminate weapons. One cannot undo years of over-production and excess. Equally, it is unrealistic to expect that possession and use of such dangerous instruments be wholly free of restriction and control.
There is one rule that I would impose for all weapons. There must be registration of all weapons. Let those who perceive of a paranoid-induced scheme to seize their weapons relax. The purpose of registration would be to compel strict and absolute liability for all injuries or death caused by the weapon to be imposed, civilly and criminally, upon the registered owner.
Thus if a gun owner has his or her weapon stolen, or if the owner's child gets access to the weapon, the owner remains liable if anyone is injured or killed. Period. The concept of absolute liability due to a dangerous instrumentality is common place in the law. This will insure that the gun owner secures the weapons safely and that he or she will not be careless. The risk should be on those who insist on owning such weapons.
I, personally, would welcome a real debate, one based on reasonable regulation and safety.
Those who assert that their gun is never to be taken away or subject to reasonable control need not enter the discussion. Those who want their guns to protect themselves from the armed forces of the Federal government should image holding out against the firepower of the Air Force or an army division. It's not going to happen.
When the Second Amendment was written, there was a real fear of an occupying army or a despotic government army, armed with muskets. If such an army now existed that was a threat to the citizens, one or two gun owners, even if armed with assault weapons, will hardly be able to stop an organized national armed force. The paranoia has to stop and realistic approaches considered.
Let's get real. Let’s start offering rational solutions.
| 87 |
| Vote |
Add To: 
Subscribe to this blog
Comment by Jeff Musall
Secular Humanity
Comment by rickb_georgia
I think the weapons that most hunters use should require registration at time of initial purchase and it is up to them to keep up with where the weapon goes after that ... I have long since sold off my hand guns and have a bill of sale for every transaction.
I do think that legitimate hunting guns should be described (or defined) based on magazine capacities, barrel lengths and type of action. In the world according to Rick, long guns (rifles and shotguns) would have a magazine capacity of not more than three rounds. Hand guns for hunting use would also have restrictions such as 6" minimum barrel length, 8 round maximum magazine capacity and the caliber, 9MM, would not be considered a hunting weapon.
I think these weapons should have broad exclusions to routine registration beyond the initial sale and be the individual's responsibility to keep up with his own transactions.
I think weapons such as assualt rifles (and their "knock-offs"), hand guns with high capacity magazines and anything in the 9MM caliber should be should have to be individually registered, every sale/purchase should be documented and only those persons who are specially licensed should be able to own/posess or deal in those types of firearms. The sources of 9MM ammunition should be highly regulated and all transactions in that caliber be recorded and purchases of more than twenty or so rounds per month be routinely reported to the authorities.
All of the hunters / firearms sportsmen I know take good care of their guns, both physically and securely. The casual gun owner that buys a gun to "protect himself" is dangerous because these are the people that leave their loaded weapons in dresser drawers where they can be found by kids or theives.
I do not understand why any responsible person would resist registering a weapon especially if it leaves the legitimate hunter/sportsman to police themselves on those weapons that are commonly used for hunting / sport shooting purposes but still leaves the door open for collectors.
This is going to be an uphill battle with the "Second Amendment Rightist" and I know 'cause I live right in the middle of a lot of them.
Comment by DeAnne
Public Journalist
Weight Loss Woman
Simple Gift Guide
Blogging American
Honestly, I think this is, at least somewhat, valid. There may come a time when a not so well regulated militia becomes necessary. Guerilla warfare has played an important role in past wars. Who's to say it won't be needed to save our country someday? If all weapons are registered, it will make it easier to prevent citizens from taking up arms to protect their country.
Comment by Patricia Graff
Inside my Mind
Free Speech
This is somewhat frightening, though:
Thus if a gun owner has his or her weapon stolen, or if the owner's child gets access to the weapon, the owner remains liable if anyone is injured or killed. Period.
If the gun is stolen, and reported as such, I do not think the owner should be held liable criminally or civilly, but that the person who stole it should be.
Comment by James Rickard
unlucky_ fishermen.com
Angling Fish
Unfortunately, most people who argue this topic, haven't thought things through. They're either for guns--hand down--or against guns--hands down. I like guns but agree with a LOT of what you're saying. There are some people out there who have NO business having a firearm. I have no sympathy when someone gets shot or they screw around and shoot someone and the say, "I didn't know it was loaded!" DUH!!!!!! They deserve every penalty they get and should be banned from ever even TOUCHING a firearm again! AND I really don't thing the the sellers of guns should be held responsible for what a BUYER does with a gun!
Comment by Jim Stillman
Opinions of a curmudgeon
Political Certainty
Comment by Anonymous
Comment by Anonymous
#1 This trendy arrogant fetish for increasing risk to create an outcome is frankly arrogant and a trendy fetish. There should be a fine for leaving the gun out in the open. The fact that a gun is stolen DOES NOT MEAN the OWNER was DELINQUENT in their responsibility. The only reason I see for a provision as this is the same postruring reason we have the "tough on crime" meme ruining lives all over the place. What part of law making requires so much ego stroking? I have no intention of ever supporting laws made by behavioral engineers such as yourself.
#2 Felons serve their time. They are free citizens afterwards. A man who goes to jail for felony corporate theft has no reason to be denied a gun. This is the same kind juvenile BAD = BAD reasoning that got us the Bad Credit = Terror Threat policy at some airlines.
#3 The right of the people to bear arms shall not be infringed because a well regulated militia is necessary to the security of a free state. There you go now it's in natural order as opposed to inverted order.
#4 You say you want to know what they meant yet you ignore their writings on the subject. Brilliant methodology there.
Maybe you hacks need to actually read rather than knee-jerk over trigger words.
Comment by Jim Stillman
Opinions of a curmudgeon
Political Certainty
As to your paragraph #1, I was not asking for anyone to support any laws; I was seeking intelligent suggestions on possible solutions to an intolerable situation. It isn’t trendy to decry the plethora of guns in our society and the seemingly inability to keep them from the hands of those who kill people. If you have a better way, one that hasn’t already been tried and been unsuccessful, let’s hear it.
#2. I would deny felons the right to have a gun without a thorough vetting process at the least. Florida, for example, restores the right to have a gun after an exhaustive study by the State.
#3. As I noted, the Second Amendment is not totally controlling and, if it does not relate to an organized militia, why are those words there?
I may be a “hack” and one who “knee-jerks”, but I sign my name.
I was looking for new suggestions, not a critique of my ability to read!
Comment by Damo
For the Sake of Argument
My Apologetics
Personally I think America has similar problems to any nation that has a large number of weapons in the community.
The questions is one of need, purpose and danger to others.
Why does someone need a gun?
Hunting? Target shooting? Olympics?
What is the purpose of the specific gun?
Is it a war weapon or a hunting gun?
Rapidfire semi-automatics? Does a hunter really need them?
Pistol and semi-automitics? Is their danger to the community worth the risk?
Registering guns for the purpose of future prosecution may be a disincentive to register. What is deemed to be liable by the owner? What if it is stolen by a terrorist and he goes nuts? There has be some kind of reasonable limits of responsibility.
The other thing is how many guns are being manufactured each year and added to the society? Could the factories and importers be stopped. The natural ageing of the weapon will reduce the numbers.
Also what about a buy back scheme for owber who wish to be rid of old guns. Also any gun used in a crime must be destroyed and cannot be sold. Same as guns from any buy back cannot be resold but must be destroyed.
Comment by Ahmed
techy.Bytes
Video Gamer Kids
Little Green Foosballs
PolyKicks
Qwerk
Cinema Three
In Australia we have what you may consider 'strict' gun laws which make it difficult to acquire a firearm. I'm quite certain it's illegal to carry a concealed weapon outright, be it a knife or side arm.
Gun enthusiasts would probably not want to live here because it is very difficult to acquire more exotic firearms. Hoewver those who use rifles for hunting purpouses can, with a little bit of hassle, get the appropriate gun license.
The way I see the second ammendment in the US is outdated, a bit like slavery. It needs to be modernised to fit the current state of the world.
There are two arguments I hear against repealing the second amendment, one is that we need to be able to defend ourselves against the government if it goes crazy with its power, the other is that we need to be able to defend ourselves against criminals.
For the first argument, I don't buy it, the Bush Administration has grossly overstepped its constitutionally appointed powers and not one gun has been fired in protest. What has been proven over the years is that protest does not need guns, from the Venezuellans who protested to have Hugo reinstated in power to the more recent protests by the French in regards to some changes the government was planning it is more than clear tha tprotests or attacks against a government that has gone crazy with power does not need guns.
If there really was a need to get all high and mighty because of corrupt government in the US, as there is now, then people would protest. But they don't, why? Perhaps its cowardice, perhaps its the elections coming soon. Perhaps the internet has provided a cleaner way to expell a lot of protest energy that would be more easily found back during the vietnam war.
As for the second argument, in a state that has strict gun laws criminals are less likely to be able to come into possession of firearms, as such crimes will be lesser.
The only way you can have more liberal gun laws and low crime is to give everyone a gun, or at least 80% of the population that. With the US I think it would be easier to roll back to 1 or 2% gun ownership with stricter gun laws than to give everyone a firearm.
Comment by Jim Stillman
Opinions of a curmudgeon
Political Certainty
I am intrigued by the slogans of the “pro-gun at any cost” group. For example, criminals don’t obey laws (therefore all law should be abolished); Guns don’t kill people (they just make the bullets go faster so they can kill people). Does anyone really believe that a gun is handy if one loses his temper?
The point I was, and am, trying to make is that gun control and regulation is necessary for everyone, even and especially for gun advocates and owners. The task is to find a means and degree of regulation that will protect everyone.
Comment by Patricia Graff
Inside my Mind
Free Speech
How would you put a "major burden and risk on the gun owner?" What would their punishment be?
Obviously, if the owner is negligent, ie, leaves his gun laying on his car seat in plain sight where a person can see it and steal it, then he could be considered negligent. However, what if someone breaks into his home, while he is not there, and then steals it? Should he be punished? I don't think so, because he isn't negligent, so there is no crime, civilly or otherwise.
#2 Felons serve their time. They are free citizens afterwards. A man who goes to jail for felony corporate theft has no reason to be denied a gun. This is the same kind juvenile BAD = BAD reasoning that got us the Bad Credit = Terror Threat policy at some airlines.
Felons should NOT be able to own a firearm. Period. A felon is a felon, whether he is a white collar felon or a "regular" felon. They have proved themselves to be a danger to society in the highest order; they have no regard for the law. There's a reason for the classing of crimes; the crime grading is done so as not to punish people too severely for small infractions. Any criminal with a misdemeanor can own a gun (as far as I know).
By the way, most crimes committed with guns are committed by people with prior convictions, aka a "rap sheet," and that usually includes prior felony convictions. Criminals escalate.
Felons not having guns is a sound policy, which most (except convicted felons) agree with, most non-felons would be too fearful of a felon owning a gun and harming them or their family.
Comment by Damo
For the Sake of Argument
My Apologetics
The crime rate for gun related crimes did drop.
There was a spike of gun related killing in the last few years due to a gangland war. Crims killing crims.
The war basically ended when Carl Williams was arrested . So it is fair to discount that from the total tally as the same spike would have occured regardless.
The current situation in Australia is that gun owners can only purchse a bolt action 22 or a double barrel shot gun for hunting.
Security and Police are different.
Any form of semi automatic and pump action shot gun is banned.