The Agony of the 2nd Amendment

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It’s happened again, and will happen again. And we mourn, and then we fight over what to do about it. On one side, many voices call for gun bans and confiscations of specific classes of guns. They read from the Gospel of the New York Times:

“America’s elected leaders offer prayers for gun victims and then, callously and without fear of consequence, reject the most basic restrictions on weapons of mass killing, as they did on Thursday.”

On the other side, voices accuse would-be gun grabbers of wanting to confiscate all civilian firearms effective for personal defense, with the first bans just an opening wedge, the first steps on a slippery slope. They take seriously the Admonition of Patrick Henry:

“Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.

I’ve been over this before, here, and I recommend a re-read before going on with this, because I’m going to do something I didn’t do there: propose a solution.

And a solution should be possible. Not one we’ll all agree on of course, but one that could give both sides substantially what they want. Because what both sides say they want isn’t mutually exclusive.

Gun-control advocates want fewer mass-shootings and to reduce the death-toll from our horrific levels of gun violence. Gun-rights advocates want that too, but also want to keep the 2nd Amendment from being rendered meaningless through the step by step advance of gun ownership restrictions.

With that in mind, here is my proposal. It comes in several steps.

Step 1: Enforce Current Laws.

This might sound like a no brainer or a cop out, but it’s not. There are currently many laws on the books that are under-enforced. One example is the prosecution of attempts to purchase guns illegally (48,000 attempts in 2010, only 44 or which were prosecuted by the government). Straw-purchases (legal purchases of guns which are then sold or given to persons not able to legally possess guns) are also rarely prosecuted. Prosecution for mere criminal possession is also often light. All of this means that any legal restrictions on gun-ownership will have next to zero impact on gun crime, since the risks of violation are low.

This will require legislation and funds ramping up investigation and enforcement of the current laws, on both a federal and state level. It must be made much more risky and costly to violate current gun laws. Step 1 should be the easiest step for gun-control and gun-rights advocates to agree upon.

Step 2: Pass Enabling, Not Prohibitive, Gun Licensing Laws.

What does this mean? For a prohibitive gun licensing law, one that really does infringe on a law-abiding citizen’s right to “keep and bear arms,” look at Illinois. It costs an average of $650 to go through the training/permitting process to possess. There are no gun ranges in Chicago, and range-training is required for permitting. Permit applications can also be denied without explanation.

As a result of the high cost and intransigence in issuance, Chicago’s poorest neighborhoods have both the highest rates of gun violence and the lowest rates of legal gun-ownership; the people most in need of the right to keep and bear arms in their own defense are not able to.

As a counter-example, a couple of years ago Detroit’s chief of police made the news with his vocal calls for more citizens with Concealed Carry Permits (CCPs) as a strategy for reducing the incidence of gun-crime (and related crimes like home-invasion).

I believe that each state should pass strong and enabling gun-ownership licensing laws. Current gun-owners should not be grandfathered in, but should be given a substantial grace period. These laws should be Will Issue laws; the state must issue the license upon completion of reasonable requirements, and approve CCPs unless it can give a clear reason why not to. A citizen’s right to keep and bear arms for self-defense must not be infringed.

Needless to say, state permitting procedures should work with the systems for enforcing the laws mentioned in Step 1. Ideally, a citizen wishing to purchase a gun must be able to present a gun dealer with his state-issued permit, which can be verified and kept up to date with any legal actions voiding the permit (felony convictions, domestic violence charges, etc).

Since the poorest are often those most in need of the means of effective defense, states should also subsidize certification/permitting fees for those who can’t afford to pay.

Step 3: Require Gun-Owner Liability Insurance.

States should also require gun owners to carry liability insurance, in the same way that drivers must carry minimal liability insurance to be allowed to drive. This would actually be fairly inexpensive; despite the impression given by what we often see in the news, the ratio of gun accidents to guns owned is very, very low. You are more likely to be accidentally hurt or kill somebody with your car than you are with your gun. (And you would need to insure each gun, just as you insure each car if you have more than one.)

——————————–

These first three steps can all be pursued within the current political environment, if both sides agree to act in good faith. Gun-control advocates will need to acknowledge that the 2nd Amendment means what it says; that the individual citizen possesses the right to keep and bear arms, equal to his other enumerated rights (freedom of speech, worship, and assembly, most notably). Gun-rights advocates will need to acknowledge that the state has a compelling interest in insuring that those who do keep and bear arms are trained and responsible in their use, and are not threats to public safety (no criminal records, mental health issues, etc.).

This may require a federal law (call it The Freedom to Keep and Bear Arms Act), passed on a bipartisan vote, committing the Justice Department to protecting the civil right to keep and bear arms enshrined in the 2nd Amendment. Given the stated radical goals of many gun-control advocates in their public statements (openly admiring England and Australia’s “solutions”), and the resulting paranoia on the other side, such a law may be the only thing that will sufficiently reassure gun-rights advocates. And they must be reassured if anything is to get done. Nonetheless, a lot can be accomplished first on a state-by-state basis. States can individually require licensing (they already do), insurance taken out with gun purchases, and insurance required for the issuance of CCPs.

With these laws and FKBA passed and in place, the way is now open for further steps.

——————————-

Step 4: Personal Arms Restrictions.

The first three steps will have already done a lot to reduce overall gun crime, and will also reduce at least somewhat the rate of gun-related accidents. But although mass-murders are a separate phenomena that make up a tiny fraction of gun deaths, there is no reason we can’t greatly reduce those as well.

Some reduction will happen just because Steps 1-2 will also prevent guns from getting into the hands of some wannabe mass-shooters. As we know, it won’t stop all of them. The greater incidence of gun owners practicing concealed carry may also help check their rampages (we know this has happened as well). But none of this will stop mass-shootings. In fact nothing short of universal confiscation will come close. As Great Britain and Australia have shown, not even gun-confiscation will. And of course in the US only a repeal of the 2nd Amendment would allow it.

So what does the 2nd Amendment allow the government to do?

In DISTRICT OF COLUMBIA v. HELLER, a narrow Supreme Court majority ruled that, at minimum, 2A protects all able and law-abiding private citizen’s rights to keep and bear arms for purposes of effective self-defense. The specific case recognized Heller’s right to keep a handgun in his home, in a location and condition that made it practical for immediate defense of his home. DC v. Heller has been used to challenge several cities whose laws make it difficult or impossible to legally acquire and keep a weapon for effective self-defense.

But DC v. Heller did not establish an unlimited right. It is virtually impossible for US civilians to legally acquire machine guns (any fully automatic weapon, really) and other “military” weapons, so the legal principle of limitations on the types of weapons citizens can own is already established.

Nearly 3 in 4 Americans believe that 2A protects the right of citizens to at least keep and carry handguns for self-defense, so the great majority agrees with Heller. With the 2nd Amendment right to keep and bear arms for hunting, for sport, and for self-defense protected by the FKBA Act, the states would be freer to enact restrictions on the types and numbers of guns allowed without gun-rights advocates fearing that such moves are steps on the slippery slope at the bottom of which lies gun bans.

But that leaves a lot of room for states to tailor their own laws. Restrictions on the type and number of guns owned would not automatically run afoul of 2A. Semi-automatic rifles, as a class, could be either restricted or require additional May Issue permits or both. Reasonable restrictions on magazine size are possible.

Will any of this end mass-shootings? No. Mass shooters have displayed the ability to kill large numbers of people with just handguns or rifles and lots of ammunition. Any gun that is sufficient for self-defense can be turned into a weapon of mass death. And as recent events have demonstrated, a monster who wants to kill lots of people can just rent a truck.

But it might slow the monsters down and will reduce body counts and overall gun-crimes, while the spirit of compromise draws the heat from one of the bitterest battles of our current culture-war.

Those alone are worthy outcomes.

Marion G. Harmon

 

 

 

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About George

I am a reasonably successful self-published author ("successful" means I can pay the bills and am highly rated in my Amazon category), former financial advisor (writing is more fun), and have something in common with Mitt Romney and Donny Osmond. Guess.
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22 Responses to The Agony of the 2nd Amendment

  1. Tom Crepeau says:

    Nope. There are several mistakes in your thoughts here. Right now, this would prevent poor people from owning guns. And, there’s nothing here to restrict them from jacking up the price on what they are charging until even the middle class can’t afford guns. While I have NOTHING against training with firearms as a restriction on ownership (I’m professionally trained myself), you need to cover inheritance as well. And, in case you weren’t looking, here in Northern Virginia, at my local gun show, machine gun dealers are in every show at the Dulles Expo Center. While extremely expensive, there’s nothing stopping that mass murderer in Los Vegas from doing that with dozens of actual machine guns, had he wanted to buy himself a selection of fully automatic weapons.
    Semiautomatic weapons (almost all of them feeding from magazines both large and small) are the most popular weapons in the country. Most hunting arms today are semi-automatic. This increases the ability to aim without slowing your second shot, so that if you only wound an animal, someome who thinks quickly can often drop a wounded animal more cleanly, preventing them from needing trying to track a wounded animal for many miles and often leaving the escaped animal mortally wounded and in horrid pain until it later dies.
    And, while the revolver Colt invented and its updated cartridge revolvers notwithstanding, most of the pistols sold in this country are semiautomatic as well.

    • George says:

      Good comments! I did mention that states should subsidize training/permitting costs for those who can’t afford it. Alternatively, those costs should be universally low. I do understand that for those with enough money, fully automatic weapons are an option. However the cost-bar, at least, has proven effective in keeping automatic ownership rare enough that full-auto weapons haven’t been a factor in any mass-shootings (or in gun crimes in general). And the only way that gun-makers will “price themselves” out of the gun market is if the government forces high floors (through punitive taxes or direct costs). If that happened it would be a cause for 2nd Amendment lawsuits (similar ideas have been floated about punitively jacking the cost of ammunition).

      As I also mentioned, handguns can be as potentially lethal as ARs. As you said, most handguns are semi-autos. And even Colt revolvers have speed-loaders. “Any gun that is sufficient for self-defense can be turned into a weapon of mass death.” The main point of my musings is that, if both sides can trust each other just a little, compromise is possible without compromising the publicly claimed goals of either side.

  2. Louis Launer says:

    Good essay, George

  3. PhilippeO says:

    It wouldn’t work in real-life. Trust in these issues (and many other issues in cultural war) is simply too low for any compromise to be accepted, many would perceive that as betrayals, there would be zero constituency for compromise.

  4. Paul says:

    Why do you say British and Australian “solutions” in quotes? A basic understanding of statistics shows these “solutions” work. And the UK has been a functioning democracy for longer than the US. Australia has never had a Civil War. So its not like the lack of a second amendment is hurting either nation.

    It’s reasonable to argue that the US is starting from an appalling position and recovery to a British or Australian position is impossible, but to argue its undesirable is slavish worship of a clause in your constitution.

    • George says:

      I put them in quotes mainly because people who advance them as solutions in the US know that anything like a general confiscation would never succeed here, precisely because of the 2nd Amendment and the understanding of the right to possess the means of efficient self-defense that most Americans consider one of their inalienable rights. It’s right up there with freedom of speech (which is also broader than you find in England, not sure about Australia). This means you can have arguments around the edges–like whether or not 2A protects a citizen’s right to an AR15–but there is no argument that an American has the constitutionally protected right to be armed in his own defense. Thus, no English or Australian solution can be seriously considered.

      And for the record, I am one of the ones who believes that the right to the means of individual defense is an inalienable right. I’m just open to arguments that the right isn’t unlimited. No rights are. And since this is a democracy, I get to use my free speech to argue over where the lines should be drawn! 😉

    • George says:

      Edited Note: rereading my reply along with the other comments, I realized that I may have implied that England/Australia’s speech laws might be so restrictive that you can’t freely debate over there! I did not intend anything of the kind; the laws of both the UK and Australia are very liberal towards dissenting speech. I’m aware that debates over Hate Speech raise the question of whether or not the US’s free speech protections are too liberal in comparison, but that is a debate for another time. (FYI, I favor the Hate Speech is still Free Speech argument, because I don’t trust the government with the power to decide what speech (beyond narrow limits like libel) is not okay in the public square.)

  5. Paul says:

    As an alternative, how about the pro-gun lobby amend the 2nd amendment? This would defuse any slippery slope argument because further change would require another amendment.

    The gun lobby would just need to document the controls it would accept and suggest an amendment. Gun control supporters wouldnt be crazy about it, but it’d be better than nothing. The gun lobby could start by specifying something like “The interests of a gun loving populace being paramount, the right to own up to 6 pistols (max magazine capacity 10 shots) and 6 long arms (max rate of fire semi-automatic, max magazine capacity 20) shall not be infringed. Only criminal and mental health checks shall be allowed to bar this right.” Then everything else could be made illegal. If you wanted more, just be clear what the ask is and scale the amendment accordingly.

    • George says:

      I know you’re not serious, because good luck on getting 2/3rds of the states to ratify! No, we’ll need to continue stumbling along on our messy way, passing laws state by state and testing them against the Supreme Court’s understanding of 2A.

      • Paul says:

        An updated 2nd amendment seems as likely as your proposal, but it has the twin advantages of 1) allowing the pro-gun side to show good faith instead of asking for it; and 2) providing the same side surety that it cannot be the first step in a legal slippery slope towards the hellish conditions endured in countries where we only have knives and bats to protect ourselves (sure, we can only be assaulted by the same weapons but proportional offense/defense just looks sexier with a gun).

        Please note that I can’t stop having some incredulous humour on US attitude slip through, but I’m serious about the amendment. It’s no less likely than the NRA deciding that your proposal is not a the thin edge of the wedge.

        Sorry, but regardless of the good will of most people in the states (which I do believe in), the people driving your public debate are nuts. It is a mental health issue, but maybe not the one they think it is (sorry disbelieving humour again).

      • Paul (Drak Bibliophile) Howard says:

        Pro-guns folks to show good faith?

        As a pro 2nd Amendment person who isn’t a gun owner, I think it is the “gun-controllers” who have to show “good faith”.

      • Paul says:

        It wasn’t gun control folks that killed 50 people in Vegas and 20 in Texas. In fact they don’t shoot anyone.

        So if this really is about self defence and hunting redefine the 2nd amendment so it does thise while cutting mass murder. If it’s about being able to overthrow the government clarify that tanks and anti-aircrad weapons are clearly allowed instead of the current half pregnant state.

        This would be a chance for the pro-shooting lobby to show that they really mean “gun control in sensible limits but no slippery slope.

      • Paul (Drak Bibliophile) Howard says:

        To be blunt, the vast majority of shootings could be prevented by enforcing laws currently on the books concerning crimes committed with firearms.

        The shootings you mentioned are more difficult to prevent but are also a very small part of the shootings in the US.

        There are more deaths caused by criminals with guns in the inner cities of the US than have been caused by the “mass shootings” that the US News Media screams about.

        We don’t trust the “gun control folks” because they aren’t interesting in fighting the inner city crime that is responsible for the majority of shooting deaths.

        IE They aren’t interested in going after the criminals who use guns in their crimes but appear to be more interested in removing guns from the hands of non-criminals.

        There is no need for an Amendment to the US Constitution but there is a need for law enforcement in the larger cities of the US to enforce already existing laws concerning guns used in criminal activities.

        In other words, you are calling for an unnecessary and useless change to the US Constitution in order to solve a problem that can be solved by other means.

  6. Lyle says:

    As an Australian, I find the US’ love affair with firearms puzzling in the extreme. Australia, under a right-wing government, tightened up gun control legislation in the wake of the appalling Port Arthur Massacre in 1996, and it has demonstrably worked to massively reduce mass shootings. There have been two murder/suicides since 1996 in Australia that would qualify as mass shootings (4 or more linked deaths), and something like 13 in the 10 years prior to 1996. I feel safer, not at more risk, as a consequence of most gun ownership being illegal. People who require firearms are able to obtain them through legal channels, and prosecutions for illegal firearms are effective. Sadly, these gun controls are being slowly eroded, but there is increasing political momentum to tighten them up again. Australians principally live in fear of our wildlife, not our fellow citizens, and most of us feel absolutely no need to own a gun to protect ourselves from our neighbours or government.
    I am aware there are different cultural pressures at work, but the only people who can make a change are US citizens, and that will happen only when you decide that one mass shooting per day (there have been 306 in the first 307 days of 2017) is no longer an acceptable price to pay for the freedom to carry guns.
    You have amended the US Constitution many times in the past, and effected great cultural change as well. The Civil Rights Movement and Universal Suffrage are great examples of massive political and social changes that are now mainstream. If you have the political will, change is possible again.

    • Paul (Drak Bibliophile) Howard says:

      “306 mass-shooting in the first 307 days of 2017” in the US?

      Somebody has been lying to you as if that was happening the US News Media would be going even more insane on this subject than they have been.

      Now the vast majority of murders using firearms are in the high-crime areas of the US inner cities and aren’t generally defined as “mass-shooting”.

      Generally speaking such murders are not highly reported outside of those cities for various reasons.

      Of course, if current laws on the books were enforced the number of such murders would go down.

      Of course, those cities had some of the strictest gun-ownership laws in the US but the criminals were still able to get guns.

      Sorry Lyle, but there are plenty of lies about this subject but I don’t blame you for falling victim to the lies.

      • George says:

        Actually, Paul, that number is correct. When defined as “A single incident in which four or more people were shot, regardless of whether they were killed, with the shooter counting toward the four or more threshold,” there were 476 mass-shootings in 2016. 2017 actually appears on a track for far fewer (the 2016-spike appears to be the result of street violence following de-policing in the wake of the Ferguson and Baltimore riots). Everything else you said is substantively correct.

      • Paul (Drak Bibliophile) Howard says:

        Ah, and those numbers would include multiple shooters in a “gang fight”.

        Those shootings are generally ignored by the national media for “reasons”. 😦

    • George says:

      The high numbers of mass-shootings in the US (as you say, 4 or more linked deaths) are almost exclusively a result of gang violence in a few urban US centers. Chicago, New York, and L.A., most especially. And all three of those cities have some of the strictest gun laws in the country. Outside of those areas, rates of violent crime, including homicide, are comparable to European, UK, and Australian numbers, despite the fact that small-town and rural areas have the highest rate of gun owners per household.

      To put this into some perspective, there are more Americans in California than there are Aussies in Australia; more than half of all Australians would fit into the Greater Los Angeles Metropolitan Area. America doesn’t have a gun-violence problem, so much as a handful of states in America have a gun-violence problem. And it’s a problem that has not been helped by stricter gun-laws–again, the areas with the most gun-owners per capita have the least gun-crime. If someone living in Utah, Texas, or for that matter a majority of the other states, counted only shooting-deaths in their state every year, they’d count themselves as safe as you do down under. Which goes a long way to explaining why the 2nd Amendment is and will remain the law for the whole country. There is no statistical link between the prevalence of guns and rates of gun-crimes in the US when not taken as a whole.

  7. Rechra says:

    This is a great post. In general, it strongly reminds of posts from L. E. Modesitt. Well done.

    I don’t like the insurance angle. To hard to determine actual coverage and to often the insurers would have legal recourse to get out of public incidents. Although I am also a cheapskate so it could just be that. And your logic for it seems sound.

    The only solution I can come up with is [spoiler] add a substantial tariff on imports and a million dollar fine to the manufacturer of a gun involved in a mass shooting. Plus $50,000-$100,000 to the dealer. A higher tax rate would need to be applied when guns can not be traced and or fines on related findings. Also gunsmith ‘s ( the 20-50 that are out there)would have to have a reduced fine or be held just as a dealer.

    Do I realize that manufacturers would just get insurance and pass the cost down the line? Yup, all my idea does is help keep the salers accountable. [/spoiler] Not as good or well thought out as yours George

  8. Jack says:

    BOOK, poke, poke, poke… do we have a release date? Nothing for pre-order on amazon yet….

    • George says:

      I don’t do pre-order (at least I haven’t yet). What will happen is there will be an announcement on this site, through the newsletter, and on the Facebook page a week or so before it’s released as an ebook.

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