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