May 21st, 2006
Editor's note: Please read the entire post before you comment. Apparently, a lot of people read the first several paragraphs (or perhaps no more than the title alone) and then assume they understand where I stand on the issue. Also, it might not hurt to keep in mind the difference between gun control and a gun ban; despite my explaining it clearly in the second paragraph, it seems not to register with a lot of people. Thank you.It's hard to believe that I haven't touched on this particular subject yet. It is, after all, how I first got started in debating on the Internet. This is one of those perennial issues that gets argued back and forth over time, one which has two rather galvanized sides, and rivers of different factoids and studies that unfortunately shed little real light on the issue. So let me do what I did that first drew so much fire over a decade and a half ago on the Usenet, and state my opinion on the issue. This will be a bit of a long post. Most people see this as a binary issue: you either are for free gun possession, or you're not. This comes from the usual right-wing misrepresentation of the opposing side of the issue, often intentional, I would believe, to make people think that "gun control" is synonymous with "gun ban." There is, as usual, a middle ground: actual gun control--not a ban--which does everything possible to keep guns out of the hands of criminals while not hindering the right of lawful citizens to keep and bear arms. But first, let's start out with a little background:
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.That, of course, is the Second Amendment to the Constitution of the United States of America. Gun advocates read that to state a broad, sweeping individual right to possess and use any kind of firearm they wish, without any restriction. The Supreme Court, as well as several federal courts, read it differently. At the time of the drafting of this amendment, the role of personal firearms was far different than what it is today. Firearms were the arsenal of the fighting forces of the colonies; men who fought would use their firearms to fight in the militia. While the same weapons were used for hunting and personal defense, it is their use in the context of the militia that is relevant here. That initial clause to the Second Amendment creates that context: "A well regulated Militia, being necessary to the security of a free State...." Pro-gun advocates will dismiss the clause as window dressing, saying it is meaningless as a qualifier of the latter clause. One pro-gun site (cached) offers this possible wording to the free press clause of the First Amendment:
The ability of the people to criticize their government unmolested being a requirement of a free and open society, the rights of a free press shall not be infringed.While the author of this site claims that such wording would not limit the press to only criticizing the government, he is incorrect; if the wording were written as such, the qualifying sentence, while not restricting the group which possesses the right, does restrict the purpose of the right. While it does not ban the press from doing anything save for criticizing the government, neither does it enable it to do anything else. Worded as such, a law, say, prohibiting the press from reporting on the private lives of celebrities would be entirely constitutional. Similarly, the initial clause of the Second Amendment qualifies the purpose of owning guns to militia activity. Other gun rights advocates will say the clause is grammatically invalid. This argument falls to the rather obvious fact that the clause was set there intentionally; it is not meaningless, and it does qualify. Then we get into what a "Militia" is. Gun rights advocates claim that everyone is a member of the Militia, and therefore the Second Amendment guarantees an individual right. This reading is usually justified by a reading of the Militia Act of 1792, which they usually quote as defining a militia as "every able-bodied citizen." Of course, the original text cites "each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years," and further details enrollment requirements, as well as details of armament including "a good musket or firelock" and other outdated accouterments. A detailed reading clearly requires active enrollment in such a militia, not just the fact of being over 18. In fact, there is a distinct difference between the "organized militia" and the "unorganized militia"; the Militia Act of 1903 (a.k.a. the Dick Act) defines that difference, as described in Wikipedia's entry on the Second Amendment:
Further clarification was provided in 1990, in Perpich v. Department of Defense, 496 U.S. 334 (1990). In this case, the U.S. Supreme Court ruled that, "The Dick Act divided the class of able-bodied male citizens between 18 and 45 years of age into an "organized militia" to be known as the National Guard of the several States, and the remainder of which was then described as the "reserve militia," and which later statutes have termed the "unorganized militia." ... "In 1908, however, the statute was amended to provide [496 U.S. 334, 343] expressly that the Organized Militia should be available for service "either within or without the territory of the United States."Ergo, a "well regulated" militia is equal to the "organized" militia, which limits the Second Amendment to weapons used by the National Guard. It would be impossible to suggest that the reserve militia--essentially everyone not in the National Guard--is somehow "well regulated." I've even heard some gun advocates say that the "well regulated" qualification in the Second Amendment only means that someone have a firearm in working order. I would beg to differ. I would further point out that in the drafting of the Second Amendment, a reference to conscientious objection was considered to allow for those whose religions did not let them commit violence. If the Second Amendment was truly about individual rights and not about military service, then this consideration would not have arisen. Suffice it to say that the Second Amendment does not imply an individual right to keep and bear arms. Now, having gone through all that, you probably expect me to conclude that a ban on guns in constitutional. That is not the case. The right to keep and bear arms is not, in my opinion, guaranteed by the Second Amendment. However, in my debates with gun advocates over the years, it has been pointed out to me that this right is bestowed under the Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.Since there is precedence for rights to ownership of firearms in pre-revolutionary law, and since the right to keep and bear arms would fall under the Ninth, I see this as established (though I am hardly a legal expert). So, now you perhaps expect that I approve of unrestricted gun ownership? Well, not so fast. It's the "unrestricted" part that I have a problem with. Every right comes with responsibilities. The Ninth Amendment does not guarantee unrestricted rights--in fact, I don't believe any right is fully unrestricted. There are always exceptions, caveats, special cases. You cannot libel or slander, nor recklessly endanger through free speech, for example. Some gun advocates have argued that there is a distinction between these exceptions and those imposed by gun control: gun control, they say, applies "prior restraint," to mean that gun control applies "punishment" before an illegal act has been carried out. Gun control restrains not just those who would act illegally, but those who act within the law as well. Prior restraint should not be applied, they say; only punish those who use guns illegally, after the fact; gun control is oppressive. I disagree with this on the grounds that the rights of one person do not exceed those of another; this is commonly expressed as "your right to swing your arm ends where my nose begins." You have the right to travel, and to use an automobile to do so; but you do not have the right to jump into a car at age 16, untrained and unlicensed. We impose prior restrictions on dangerous activities, from driving a car to handling explosives. One must be trained, tested, and licensed. The same should be true, and also perfectly legal, in the context of gun ownership. So while I believe that there is an individual right to keep and bear arms, I do not believe that this is an unrestricted right, free from obligations or exceptions. And those obligations and exceptions would entail gun control. If you want to own and use a gun, you should at the very minimum be required to demonstrate knowledge how to safely operate and store the weapon; in addition, you should be prepared to take responsibility for whatever happens with regard to the firearm you possess, and you should allow for whatever gun control measures that can inhibit illegal firearm possession and use, so long as they do not unduly restrict your right to own and use firearms. So, what does this mean? First, I believe that one must be trained, tested, and licensed in firearm use and safety before being allowed to purchase a firearm. Such is precisely the process we undergo to drive a car, and we all are pretty much satisfied that this process is not an undue burden on the individual, when weighed against the safety considerations to society in general. Here is where some in the gun crowd will bring up the Hitler gambit. What if, they say, the United States were to fall under the iron rule of a Hitler-like dictator? Gun registries were used by Nazis, they say, to round up personal firearms in WWII. I don't know if this is true; it may well be. However, I do know that it is irrelevant, and not sincerely reasoned; it is an excuse, not a rationale. If an oppressive, fascist dictator were to take over the country (allowing for the right-wing stance that this has not in fact already happened in the past few years), then that dictator would not immediately go for the guns. Guns, in fact, would be a distant third on the list of things to oppressively control. The first would be communications, and the second would be travel. Guns would be a distant third because they would be relatively ineffective as a means of resistance or revolution. Any such dictator would, by definition, have to have the willing cooperation of the military in oppressing the people. And despite all right-wing "Red Dawn" fantasy scenarios, hunting rifles and handguns will pale in effectiveness relative to weapons owned by the military. As we have seen in Iraq, an insurgency does not fight like a Revolutionary War militia; handguns do not figure largely in the big picture. Additionally, look at the history of the past century. How many oppressive dictatorships were overthrown by a people using personal firearms? Few, if any. Now, how many were overthrown by an unarmed populace? South Africa, the Philippines, and the Soviet Union come to mind as a few examples. Revolution does not come at the point of personal firearms, not any more. So training, testing, and licensing should be required. Second: registration. If possible, bullets should also be registered, like they are in Switzerland (the NRA loves to bring up Switzerland as an example of universal gun ownership with low gun crime rates--until you point out their very strict gun licensing and registration laws). Just as explosives are tagged, a way should be found to tag bullets as well. If you bought a weapon and ammunition, you should be willing to face responsibility for what happens to these items; registration will help accomplish that. Gun advocates point out that guns can have serial numbers removed, and that homemade bullets can be used. Well, license plates on cars can be switched or forged, along with other tricks, but we don't give up on auto registration just because some criminals are resourceful. Most criminals are not, and registration of firearms and ammunition would help more than enough to justify the inconvenience involved. Next, loopholes in gun control laws must be closed. One of the biggest is gun shows and gun trafficking. Criminals can easily visit a gun show in a state where there are few or no restrictions, buy dozens of firearms, then transport these to a state with strong gun control laws. Illegal gun trafficking is a major problem that could be fixed by simply limiting the number of firearms one person may purchase to one every few months, or, say, three every year. Special exceptions would be granted to law enforcement and security agencies, and licensed gun collectors and dealers. The restriction would allow lawful citizens to acquire a large number of guns over time, more than any ordinary citizen would ever need. But it would virtually halt gun trafficking. Next, background checks should be universal. Such background checks have proved highly effective. In just four years after background checks were instituted in California, Florida, Virginia and Maryland, 47,000 illegal gun purchases were stopped, and more than a few wanted criminals were arrested trying to purchase guns. One argument against gun control laws is that they are ineffective; despite these laws, criminals have guns, and they use them. Well, one reason is that gun control laws constitute a patchwork quilt full of holes, not a complete blanket over the nation. Gun advocates like to point to the legendary "20,000 laws," supposedly the number of gun control laws that exist in the country; they point out that even with so many laws, gun control is ineffective. The truth is, gun control is ineffective because of the 20,000 laws. Since the NRA has been so effective at blocking gun control legislation at the national and state levels, individual municipalities have been forced to enacts sets of their own laws if they want to have them; ergo the large number. However, the fault is in the fact that many cities and states do not have gun control. That and other loopholes allow criminals to get their hands on guns in one locale and then transport them to a place with stricter gun control laws. This is why the vast majority of guns confiscated from criminals in New York, which has strong gun control laws, were bought out-of-state. The fact that criminals went to greater trouble and expense to buy weapons elsewhere in fact proves that the gun control works; the lack of gun control elsewhere is the culprit. As a result, the "20,000 laws" should all be repealed, and one comprehensive, nation-wide gun control act with the details I have given should be enacted. One of the problems that gun control has faced, however, is the fear instilled by the NRA that gun control will lead to gun confiscation and a gun ban. This is what frightens gun owners who would otherwise approve of gun control into blocking such legislation from passing. If the Ninth Amendment is not enough, then a new amendment should be drafted and passed, one which specifies gun ownership rights, but also notes the necessity of limited gun control. The purpose of such an amendment would be to relieve the concerns of gun owners who would support gun control, but fear the laws would go too far. With a new guarantee in place, better and universal gun control laws could be more easily enacted.
To sum up: individual gun ownership is guaranteed, but gun control is necessary and lawful. Said gun control should include mandatory training, testing, and licensing; registration of weapons and ammunition; background checks; and limits on the number of guns purchased at any one time. These laws must be universal. They would not unduly restrict gun ownership rights of lawful citizens, but would make illegal gun ownership much more difficult. One more argument from the gun advocacy side remains: gun control will never stop crime. Well, duh. Of course it won't. Nothing ever will. But effective gun control will make it far more difficult for criminals to obtain and use firearms. Not impossible, but far more difficult, time-consuming, and expensive. More criminals will be deterred, stopped, and arrested. And that's the whole idea.