This should be interesting. My personal positions here are likely to piss off just about everyone on both the left AND the right. So be it. I’m choosing this as my first 2020 Platform post mostly since there’s been some recent Congressional activity in this arena.
I’ll start with a statement that might be just a tad presumptuous from someone whose entire legal education consists of two semesters of business law: I contend that the Supreme Court’s 2008 DC vs. Heller opinion was wrongly decided. In essence, that 5-4 decision ignored precedents and declared that the Second Amendment protected an individual’s right to possess a firearm, completely disjoint from service in a militia. As Justice John Paul Stevens much more eloquently stated in his dissent, that’s just crap.
The Second Amendment reads, in full:
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.
The Constitutional right to bear arms is unrelated to a militia? It’s the introductory clause of the single sentence in the Amendment! If the clauses are independent, the Amendment could well have read:
A future set of Supreme Court justices, being complete idiots, the right of the people to keep and bear arms, shall not be infringed.
Also, given that the most lethal firearm in 1787 was the musket, it is preposterous to assume that the Founding Fathers intended any interpretation of the Second Amendment to extend to today’s automatic weapons. The Heller majority generally claimed to be strict constructionists. So much for the consistent application of a judicial philosophy.
Thus, from my perspective, the Second Amendment simply does not apply to this conversation.
That said, …
I also see nothing in the Constitution that explicitly disallows individual gun ownership. The libertarian in me sees little reason for the federal government to tell Americans that they can’t own something that they want to own. I may not personally understand why someone needs an AK-47 unless they’re vacationing in Afghanistan, but okay. As long as I’m not at risk, I really don’t give a damn. AS LONG AS I’M NOT AT RISK. I’ll respect others’ rights only as long as they don’t impact my rights.
Some on the left want very strict federal gun control. They are wrong. They argue that other countries with strict laws don’t have the mass shootings that we have in the U.S. That is quite unfortunately correct. However, while extolling “the price of freedom” sounds trite and hollow in the aftermath of tragedies, there is truth in the argument that individual freedoms have always been paramount in the American implementation of democracy. Those on the left need to remember this fact even when the exercise of such freedom doesn’t support their worldview.
Some on the right want no gun controls whatsoever. They are wrong. There are no “slippery slopes.” Does setting speed limits lead to the suppression of car ownership? Of course not. Defining reasonable limitations on personal liberties for the public good is indeed the whole job of government. Those on the right need to remember the valid purposes of government even when the exercise of such a purpose doesn’t support their worldview.
The Bipartisan Background Checks Act of 2019 recently passed the House. The legislation closes a glaring loophole by merely mandating that background checks be performed for all gun sales. Under current law, a background check is already required for anyone purchasing a gun from a licensed gun dealer. However, private gun sales and sales made at gun shows require no checks at all. That’s just stupid. This bill corrects the problem while exempting transfers between close relatives and the temporary loan of a firearm.
How could any reasonable person object to this sane adjustment to existing laws? We require background checks on healthcare workers, lawyers, and public school teachers. Shouldn’t the purchase of a lethal weapon require a similar validation, regardless of the source?
Sadly, despite the name, the House vote on the bill was largely along party lines (240 to 190) and Senate passage is doubtful at best. The NRA is powerful enough to make this yet another example of why we can’t have nice things.
The federal government should rightfully own the laws related to reasonable background checks, waiting periods, and registration requirements where interstate coordination is obviously required.
Beyond that, however, most gun rights and limitations should largely be defined at the state and local level as appropriate for their communities. This isn’t a Constitutional issue; it’s a legislative issue.
I am most definitely not personally in favor of the ridiculously broad concealed and open carry laws in my home state of Texas. I can reluctantly accept that someone wants to own an AK-47 after passing a background check; I’m not thrilled that someone can legally brandish that weapon in front of a Chuck-E-Cheese. I’m not thrilled that someone can legally bring a gun into a classroom at the University of Texas despite the fact that the University’s administration, faculty, and students object. However, this is a Texas problem. The federal government has no role here and our asinine Texas laws should have no impact on how citizens of other states want to deal with their guns.
I firmly believe that the public good can be served via some limited forms of legislated gun restrictions with all levels of government playing a role. I’d personally like to see the level of that control tied to the destructive force of the weapon with the specifics left to state and local governments. However, there is simply no rational reason why there is even a debate about universal background checks.