The recent school shooting in my home state of Texas encouraged me to review a post to my blog on gun control from early 2019. Unfortunately, after more than three years, the landscape is unchanged. My own viewpoints have slightly evolved but are still likely to piss off just about everyone on both the right AND the left. So be it. Perhaps a solution where no one is completely happy is the best we can do. Anyway, using my old post as I would use a first draft, here are my current thoughts.
I’ll start with a statement that is 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 any firearm, completely disjoint from service in a militia. Justice John Paul Stevens was quite eloquent in his dissent but, in essence, we both agree that the majority’s opinion was bullshit.
The Second Amendment consists of exactly one sentence that 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 right to bear arms is unrelated to a militia? Seriously? “Militia” is the subject of the introductory clause of the sentence! If the clauses are completely independent, the Amendment could well have read:
A future majority of Supreme Court Justices, being complete idiots, the right of the people to keep and bear Arms, shall not be infringed.
The Heller majority generally claimed to be strict constructionists who theoretically consider only the historical meaning of the words in question at the time the Constitution was written. While I don’t necessarily subscribe to that judicial philosophy, I can respect it if it is consistently applied. In this case, it is not.
Justice Antonin Scalia wrote for the majority that the Second Amendment was intended to protect “an individual right to possess a firearm unconnected with service in a militia.” If that was the indeed the case, why wasn’t this amendment a whole lot shorter? The Founding Fathers were mostly concerned with protecting states’ rights against an all-powerful federal government and the glaringly obvious intention of the Second Amendment was to enable each state to form and arm its own regulated militia. Furthermore, given that the most lethal firearm in 1787 was the musket, it is preposterous to extend any strict interpretation of the Second Amendment to include personal ownership of today’s automatic weapons of war.
Hence, from my perspective, the Second Amendment simply does not apply to this conversation.
That said, …
I also see nothing in the Constitution that disallows individual gun ownership. The libertarian in me sees few reasons for the federal government to simply dictate that Americans can’t own something that they want to own. I don’t personally understand why anyone needs an AR-15 unless they’re vacationing in eastern Ukraine. But, fine. I can respect someone else’s right to own one as long as it doesn’t infringe upon the rights of others.
Many on the left want very strict federal gun controls and a complete federal ban on automatic assault weapons. I contend that they’re wrong. They argue that other countries with strict gun ownership laws don’t have the number of mass shootings that we have in the U.S. and, unfortunately, that is quite 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 within 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.
Many on the right want no gun controls whatsoever and they largely have their wish. I contend that they’re wrong. Reasonable gun regulations are both prudent and necessary. This is not a Constitutional issue. It’s a legislative issue and there are no “slippery slopes.” Firearm laws no more suppress gun ownership than speed limits suppress car ownership. Defining reasonable limitations on personal liberties for the public good is indeed a definitional job of government. Those on the right need to remember the valid purpose of government even when the exercise of such a purpose doesn’t support their worldview.
I firmly believe that some limited forms of legislative firearm regulations, with all levels of government playing a role, can preserve gun rights while better serving the public good.
The federal government should rightfully define and enforce a few minimal, common-sense laws at a national level, where consistency and interstate coordination are required. These include:
(1) Increase the minimum age for firearm purchases to 21.
- Congress passed the National Minimum Drinking Age Act in 1984 to prohibit alcohol purchases by anyone under 21. It’s idiotic that a teenager can buy an AR-15 before they can buy a beer.
(2) Require a valid license to purchase and/or possess any firearm.
- To get a license, an over-21 individual would need to complete a gun safety course and pass a simple background check (as currently required for healthcare workers, lawyers, public-school teachers, etc.). For the license to allow the purchase or possession of an automatic weapon, the individual would need to complete an additional hands-on training and safety course. Common sense suggests that the mere process of getting a license, while not overly difficult, would still significantly reduce gun-related suicides and rage-induced homicides.
- A national database of valid licenses would be constantly updated with relevant data such as arrest records, court orders, mental health holds, terrorist watch lists, etc. to invalidate licenses as appropriate. All gun sellers (both commercial and private) would simply be required to check the purchaser’s license using this database – eliminating the need for additional point-of-purchase background checks. Note that licenses are currently required to drive a car, fly a plane, and even to fish. It should be harder to buy a lethal weapon than it is to catch a salmon.
(3) Require all firearms to be registered to their owner.
- All firearms would be registered to a valid license and reflected in the above national database. Such registrations would help to ensure gun owner accountability, assist law enforcement in resolving crimes, allow law enforcement to disarm individuals who become ineligible to possess a firearm, and discourage illegal gun sales. Registrations are currently required for cars, boats, and planes. The government knows what types of cars you own. If you don’t want the government to know what types of guns you own, I don’t think I want you to own a gun.
State and local governments should be able to define and enforce additional limitations as appropriate for their communities and electorate. If, for example, a state wants to ban concealed weapons and the possession of assault weapons, high-capacity magazines, and silencers within their borders, they should be free to do so.
Conversely, states and local governments should be free to impose no additional regulations beyond those implemented at the federal level. I personally believe that the open carry laws in my home state of Texas are ridiculously broad. I’m not thrilled that someone can legally brandish a weapon of war 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, these are Texas problems, and our asinine laws should have no impact on how citizens of other states deal with guns within their own borders.
In my own utopia, assault weapons would be banned outright, open carry laws would be non-existent, and it would be harder to get a concealed carry permit than to get a pilot’s license. However, as uncomfortable as I am with the proliferation of guns in my country, I’m even more uncomfortable projecting my beliefs and preferences onto others – so long as my own rights are not sacrificed in the process.
Thus, my proposals above do not at all prohibit the purchase or possession of any firearm at the federal level. They merely limit the ownership of registered weapons to eligible, licensed adults who know how to use them. This approach is a sane balance between personal liberties and the common good, it doesn’t violate even the Heller interpretation of the Second Amendment, and yes, it would have likely prevented the tragedy in Uvalde.
Eventually, common sense must prevail. If the gun lobby’s political sheep continue to block even reasonable federal regulations that have no impact on gun ownership, they need to be voted out of office. We cannot continue to mourn children who are slaughtered due to the inaction of our elected officials.