Posts © 2011-2012 by Gerald G. Day







Sunday, April 15, 2018

April 14, 2018
     Will we ever do anything about the plague of guns?  Shootings happen daily, and mass shootings (defined as events at which four or more are shot) occur about every one and one-half days.[26]  That is cause enough for alarm, but shootings at schools are a sign like no other of the firearm disease.  

     The interest in change triggered by student protests is encouraging, and finally there has been some action.  Florida enacted a law which raises the age for gun purchase to 21 and bans bump stocks, but it also authorizes and funds arming some school personnel, pleasing the NRA.  In New Jersey, which has relatively strict gun control laws, the governor issued an executive order under which the state will release a report every three months listing the states that are the source of guns used in crimes in New Jersey.  More than 80% of them come from outside the state.  Stronger controls are under consideration in the legislature.   
    The Vermont legislature passed measures that include a ban on bump stocks, limits on the size of magazines, expansion of background checks on buyers and raising the purchase age.  Other states, and cities, have enacted or considered additional controls. [27]

     Citibank announced a policy, applicable to "clients who offer credit cards backed by Citigroup or borrow money, use banking services or raise capital through the company," prohibiting the sale of firearms to customers who have not passed a background check or who are younger than 21, and barring the sale of bump stocks and high-capacity magazines.[28]

     However, in response to the students’ pleas, there have been nasty, idiotic attacks and conspiracy theories from those opposed to any progressive change. Ted Nugent, NRA board member, offered this sentence-fragment appraisal of  the surviving, protesting Parkland students: "The lies from these poor, mushy-brained children who have been fed lies and parrot lies."  On the other hand, "The National Rifle Association are [sic] a bunch of American families who have a voice to stand up for our God-given, constitutionally given right to keep and bear arms."  It is good to know that God, as well as the Founders, decreed civil warfare.

     Nugent made an appearance on the Alex Jones show, and the two engaged in a contest to see who is the most weirdly out of control.[29]  Nugent offered this cogent evaluation of contemporary politics: "Don’t ask why [gun control and other awful, un-American proposals are made]. Just know that evil, dishonesty, and scam artists have always been around and that right now they’re liberal, they’re Democrat, they’re RINOs, they’re Hollywood, they’re fake news, they’re media, they’re academia, and they’re half of our government, at least. . . . There are rabid coyotes running around. . . . Keep your gun handy, and every time you see one, you shoot one."  That’s why we need guns: to shoot political enemies. 

     As Nugent implied, the supposed basis for packing heat is that gun possession is protected by the Second Amendment.  Since 2008, gun-possession advocates have pointed to Heller v. District of Columbia, in which Justice Scalia and friends purported to find a private, non-militia right to possess and carry a firearm.  However, Heller confirmed rather than established that claim. On February 20, I mentioned the Second Amendment Foundation, established in 1974, as an early manifestation of that theory.  Here’s another, from popular fiction, in 1975: "Nobody was ever going to keep firearms out of the hands of butterfingered idiots. Nobody was trying, thanks to the National Rifle Association and a misreading of the Constitution of the United States."[30]  

     One of the reasons often cited for protecting gun ownership — and the actual holding  in Heller — is self-defense in the home.  However, a gun in the home "is more likely to be used to kill or injure an innocent person in the home than a threatening intruder,"[31] so it’s a weak reed on which to lean in demanding unlimited ownership of guns.

     Because of the long-standing misinterpretation, now sanctioned by the Supreme Court, repeal of the Second Amendment is tempting as a cure for the disease.  Former Justice John Paul Stevens proposed just that in a recent column.[32]  He first set forth the core of his dissent in Heller: "Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that ‘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.’" He added: "Today that concern is a relic of the 18th century."  That’s an interesting variation on the original-intent theory: the interest which the Amendment was intended to serve no longer is recognized. 

     Even if still relevant, it is not being applied as intended: "For over 200 years after the adoption of the Second Amendment, it was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation. In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a ‘well regulated militia’.”

     The Heller decision was wrong, as a matter of constitutional interpretation and as a matter of policy.  According to Stevens the solution is to be rid of the source.  "Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option."  While I agree that misinterpretation of the Amendment is a major prop for our gun culture, and that we would be better off  without it, I don’t think that repeal would be simple, or easy.  Also, while repeal would undercut the NRA, an attempt to repeal would empower it, by playing into the gun lobby’s claim that liberals, the government, the deep state, are about to confiscate everyone’s hunting rifle.  The better approach is to enact meaningful restrictions, including licensing, and rely on the numerous ambiguities in Heller to permit them.


___________________

26.
http://www.gunviolencearchive.org/reports/mass-shooting

27. https://www.cnn.com/2018/04/09/us/gun-laws-since-parkland/index.html

28. https://www.nytimes.com/2018/03/22/business/citigroup-gun-control-policy. html

29. https://www.mediamatters.org/video/2018/04/06/nra-s-ted-nugent-compares-democrats-rabid-coyotes-keep-your-gun-handy-and-every-time-you-see-one-you/219877 

30. Lockridge, Or Was He Pushed?

31. http://lawcenter.giffords.org/facts/statistics/ For an awful example, see    
     https://www.thedailybeast.com/girl-13-shot-dead-by-9-year-old-brother-over-a-video- game
32. https://www.nytimes.com/2018/03/27/opinion/john-paul-stevens-repeal-second-amendment.html