Gun Rights, Regulation and the 2nd Amendment
Gun Rights, Regulation and the 2nd Amendment
A bill has recently been introduced to Congress which, if passed, would add additional regulations on firearms in the US. The bill, HR-127 [1], has provisions for mental health, magazine capacity, and addresses what may be considered military style weapons, among other provisions. It is highly unlikely the bill will ever pass even a Democratically controlled House, much less the Senate. But the introduction, per usual, causes cries of outrage from what I term gun-rights absolutists. These absolutists take their cue and talking points from the modern National Rifle Association (NRA) with a revisionist view of not only the Second Amendment (2A), but the concept of rights themselves.
RIGHTS
Let’s address the idea of rights first. There are legal rights and then there are what can be considered inalienable rights. There is a long philosophical history of the distinction going back in more recent eras to John Locke, Rousseau and Hume (as well as being debated by Mills and Bentham in England). The general distinction, in short, is that inalienable rights are rights that are non-transferable, non-sellable. Locke famously penned the phrase “life, liberty and property.” Sound familiar? But Locke was also proceeding from a mercantilist based nation and property was certainly a major aspect of English common law. Jefferson leaned more toward the Hume and Rousseau version and penned “life, liberty and the pursuit of happiness” in the Declaration of Independence. (As an aside, it is useful to note that the Declaration is NOT a governing document. It is a declarative list of grievances which were cited as justification to the world for the American colonies to separate from the British empire and become independent).
Inalienable rights have also been called ‘natural rights’ and viewed by some to spring from ‘natural law’ which, for religious persons is handed down by the deity and for non-religious be be part of our natural state as human beings. This could spin out to a completely different discussion so we will stay close to the distinction between legal rights which are created by society and the governing state presumably, in our case, under a democratic legislature of representatives — versus — inalienable rights. [2]
In the Declaration of Independence, Jefferson wrote that we have the inalienable rights to “life, liberty & the pursuit of happiness.” Per the distinction above, these are non-saleable, non-transferable and would fit the definition of inalienable. Jefferson purposely did not use the word “property” as Locke did.
When Madison wrote the US Constitution, nowhere in it did he use the term inalienable. The Constitution IS our governing document. It organizes the government and spells out rights and responsibilities. The Constitution also includes all of its amendments- not just the familiar first ten known as the Bill of Rights. There are other amendments bestowing rights such as the 15th guaranteeing the right to vote -at the time for black men as only men could vote then, but was followed by the 19th which gave women the right to vote.
We have a right to vote which has often been infringed upon. There are also many regulations and rules regarding voting. We have a right to free speech, but it too is regulated such that you cannot libel or slander someone or shout fire in a crowded theater or incite violence. So these rights IN the Constitution are not inalienable. And neither is the rights under the 2A. You cannot own an automatic firearm without a special license, for example. This restriction has never been ruled unconstitutional. Even the oft-cited Supreme Court ruling Heller v WashingtonDC, while saying you have an individual right to possess a firearm did not make it an unfettered right free from regulations. In other words, the 2A is not inalienable
“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”
2A absolutists love the “shall not be infringed” part but completely ignore “well regulated militia” as well as “security of a free state.” While I agree that one should be able to defend oneself and a firearm of some sort may be the proper tool, the 2A is NOT discussing personal defense at all. The purpose of the 2A was to create a ready body of men to defend the state and society from civil disturbance, rebellion and foreign invasion in the absence of a standing army. This is completely clear in Hamilton’s explanation in the Federalist Papers #29. [4] The idea was to have a defined organizational structure under which certain men of the community would gather under officers for training on a regular basis- i.e. “well regulated.” The militia would be called up BY the government to quell disturbances or invasion. Abraham Lincoln, as an example of an external issue, was part of an Illinois militia called up to fight native Americans in the Black Hawk war of 1832. Prior to that, George Washington called up a 12,000 man militia to put down the Whiskey Rebellion.
The purpose of the 2A was to defend the state, not as a tool to undermine our government “in case it became tyrannical.” Militias needed to defend our government and society became obsolete with the advent of the National Guard. Non-government (unsanctioned) militias are illegal in nearly every state and are not militias, but in actuality, since most hold an “opposition to government” position, are essentially armed criminal gangs, no different than drug gangs.
The 2A absolutists like to cite Nazi Germany gun laws as disarming the population to be able to oppress or kill them. But this is not really true [9]. The Nazis actually relaxed firearm laws for the German population. They did enact bans on Jews from having guns, but given that Jews were about 1% of the population of Nazi Germany, history professor Alan E. Steinweis wrote in a New York Times piece:
“The Jews of Germany constituted less than 1 percent of the country’s population. It is preposterous to argue that the possession of firearms would have enabled them to mount resistance against a systematic program of persecution implemented by a modern bureaucracy, enforced by a well-armed police state, and either supported or tolerated by the majority of the German population.”
So the “disarmament” argument procedes from a non-factual basis and results in a false argument.
Even the NRA was in favor of regulations. During Reagan’s term as governor of California, Black Panthers paraded around the state capital carrying weapons. Reagan famously said he saw “no reason why on the street today a citizen should be carrying loaded weapons” and that guns were a “ridiculous way to solve problems that have to be solved among people of good will.” The NRA backed the law. [5]
The NRA however gradually since the 1980s, morphed into a lobby arm for the gun manufacturers and, much like the history revisionism which portrayed the South’s rebellion as the noble lost cause for state’s rights, the NRA and other 2A absolutists began parroting anti-constitutional quotes to portray the amendment as a bulwark against tyranny- a factor that has been demonstrated above to be false.
We have now rebutted the anti-tyranny argument and the inalienable rights argument with regards to the 2A and guns. Let’s look at HR-127 in more detail as to what it proposes and how these may affect gun owners or society in general. Remember, one purpose of the government under the Constitution is to look after the ‘general welfare,’ not specifically the individual in every case.
HR-127
The bill calls for:
1. establishing a registration for firearms ownership which includes “the make, model, and serial number of the firearm, the identity of the owner of the firearm, the date the firearm was acquired by the owner, and where the firearm is or will be stored.” The owner must specify if he/she LOANS the weapon and to whom for how long a period. It requires registration of weapons already owned within three months of the enactment of the bill
2. The registration database will be accessile to “all members of the public, all Federal, State, and local law enforcement authorities, all branches of the United States Armed Forces, and all State and local governments, as defined by the Bureau”
3. defines who can purchase and own a non-military firearm, such as minimum age of 21, requires background check and mental health evaluation, training and specific “firearms insurance” and a federal fee of $800.
4. A section specifically pertains to “military” style weapons purchase with similar checks
5. A section pertains to antique firearms again with similar checks
6. Section (2) defines “military style” arms, naming some weapons specifically while citing features such as flash suppressor, telescoping stocks, detachable magazines, ability to utilize silencer. You can read more if you go to the link provided at the start of this article.
Let’s be clear. Guns are NEVER going away in America. The Small Arms Survey stated that U.S. civilians alone account for 393 million (about 46 percent) of the worldwide total of civilian held firearms! [7]
2A absolutists quite often like to say “well that law would not have prevented ____________” (fill in the blank with a given incident). They also complain that restrictions won’t stop criminals from getting guns. But are either really true in some, many, or even all cases? Hard to know, because we never EVER have a true problem solving discussion on the various kinds of gun violence and what may prevent or minimize these various types.
2A absolutists are usually disingenuous when discussing potential solutions by saying “law A” won’t stop “incident B” when in fact “law A” wasn’t meant to address that particular issue. Different types of gun violence require different solutions.
We have to admit our problem. The USA has higher numbers of gun deaths per 100,000 than any other OECD nation at 10.2/100k vs the next highest Finland at 3.6/100k.
It is often said by 2A absolutists that we just need to enforce the laws we have. But the problem is that the laws are a patchwork of state and local laws with no consistency and often conflicting purposes or results. Chicago and New York have strict laws, whereas Virginia has a very loose regulatory environment.
How do criminals and gang members actually GET guns if the laws in those cities are so strict? The guns are imported from lax-law locales! An analysis of guns taken after crimes in New York found that 3,249 of them had been purchased in Virginia.[8] People are literally buying guns in large quantities in Virginia and driving up to New York and selling them to people on the black market. In my article above with regards to HR127, this would be addressed by bullet points 1 & 2. I also personally think a gun owner should regularly have to prove they still own and possess the firearm registered to them on a defined cadence, say yearly, by taking it to the local police department for verification. This would eliminate the “I lost it” and “it must have been stolen” arguments as well as black market sale of the weapon. If you cannot show you still possess it, you should get a very hefty fine and perhaps even a misdemeanor conviction.
The mental health provisions in the law are designed to prevent unstable people from gaining a weapon.
Large capacity magazines, especially when combined with arguably military style weapons efficiently make killing fields of crowds such as the Nevada shooting. We can and should address the ability to murder as many people as possible without reloading.
Red Flag laws will be likely to address deaths by domestic violence situations.
In any event, HR-17 is unlikely to pass Congress at all, and even if it does, it will be greatly modified, likely watered down with loopholes as most gun legislation is, in order to give Congress members the ability to say they “did something” when in fact they did very little to address gun violence in the USA
[1] https://www.congress.gov/bill/117th-congress/house-bill/127/text
[2] https://www.britannica.com/topic/human-rights/Natural-law-transformed-into-natural-rights
[3] https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller
[4] https://avalon.law.yale.edu/18th_century/fed29.asp
[6] https://www.politico.com/magazine/story/2014/05/nra-guns-second-amendment-106856
[9] https://scholarship.law.columbia.edu/faculty_scholarship/1327/
[10] https://www.amjmed.com/article/S0002-9343(15)01030-X/pdf
