UNDERSTANDING THE SECOND AMENDMENT

This article is dedicated to the memory of those who lost their lives in the mass shooting that occurred on Sunday October 1, 2017 at the Harvest Festival in Las Vegas, Nevada.

The Second Amendment is one of the most important yet, at the same time, one of the most divisive and misunderstood Amendments to the U.S. Constitution.

The Second Amendment provides as follows:

 “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.” 

Many believe that the right to bear arms is a “god given” or “natural” right that pre-dates the Constitution. They assert that the Second Amendment acts as an express prohibition against any infringement upon that right.

They remind us of Noah Webster, who argued:

Before a standing army can rule, the people must be disarmed.“

They evoke the admonitions of Patrick Henry who, in the Virginia ratification convention of 1788, stated:

“Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.” 

Sage advice from men who not only gave birth to our nation but did so in the face of government tyranny.

Many of those who warn us to follow this important historical advice are good and in some cases, highly educated, intelligent and well-intentioned people. They include many of the police, firefighters and military personnel who serve and protect this country. They include business owners, laborers, housewives and educators.

Many passionately believe that our right to bear arms makes us safer, rather than less safe. Others reject that assertion and claim the opposite is true.

Certain facts are undeniable. Over 1.3 million Americans have died from firearms – either in suicides, homicides or accidents – since 1960. Children in the United States are twelve times more likely to die from gun injuries than are youngsters in all other industrialized nations combined. ABA Criminal Justice, July, 1998.

Strong arguments and passionately held beliefs exist on both sides of the gun debate. These positions and beliefs inform and influence our perceptions of the Second Amendment.

However, under our system of government, individual and/or group opinions, regardless of how well intentioned, passionately held and/or aggressively pursued, do not define the purpose and scope of the Second Amendment. Instead, it is the meaning and intent of the language contained in the Second Amendment, as interpreted by the U.S. Supreme Court, which defines the purpose and scope of the Second Amendment.

Understanding and accepting this is as important as the Second Amendment itself.

In District of Columbia v. Heller, 554 U.S. 570 (2008), Justice Scalia, writing for a 5-4 majority, stated that the Second Amendment:

“protects an individual right to possess a firearm unconnected with service in the militia,”

This clearly establishes that the right to bear arms is an individual right.

But what is the scope of that individual right? Is it the right to own and use any weapon for any purpose whatsoever? No. It is not. Nor should it be.

In Heller, Justice Scalia, writing for the majority, stated:

“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon in any manner whatsoever and for whatever purpose. … the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.”

Justice Scalia went on to state:

“… our holding that the sorts of weapons protected, are those in common use at the time, finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. … The term arms was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.”

Under our system of government, this is the law.

In considering how we as a society should exercise and apply our rights under the Second Amendment, it is important to understand that the right to bear arms, like any other Constitutional right, is not an unlimited right. In any society, all individual rights are subject to certain inherent limitations required to protect the rights of others.

A ban on weapons such as the AR15, along with high capacity magazines, is likely constitutionally permissible because such weapons and high capacity magazines are not “arms” as that term is used in the Second Amendment and/or as that term has been understood and interpreted by the U.S. Supreme Court. Rather, they are “dangerous and unusual weapons,” “specifically designed for military use,” not “typically” possessed by law abiding citizens.

An AR15 is the civilian equivalent to the military’s M-16. The only significant difference being that the “military assault rifle” is fully automatic while the civilian AR15 “military style assault weapon” is semi-automatic. A fully automatic weapon is able to shoot continuously with one pull of the trigger. The AR15 only allows one shot per trigger pull.

The AR15 is also capable of being converted to a fully automatic weapon through the use of a bump fire stock. Steven Paddock, the Las Vegas shooter, took the semi-automatic civilian weapons that he purchased legally and converted them to fully automatic weapons through the use of bump fire stocks.

For purposes of this article, I will use the term “military style assault weapons” to refer to the civilian, semi-automatic AR15 which is capable of being converted into a fully automatic weapon with a bump fire stock.

What constitutes “typically” possessed? Of the more than 300 million guns in circulation, approximately 1% are “military style assault weapons.” Even if the number were twice that, “military style assault weapons” would arguably not qualify as weapons “typically” possessed by law abiding citizens. Given the Court’s prior rulings, it is likely that a ban on “military style assault weapons” would be upheld by the Court – depending of course on the composition of the court at the time of the decision.

In arguing against such a ban, gun advocates make a variety of very good arguments. They argue that guns don’t kill people – people kill people. They point out that most owners of “military style assault weapons” are responsible citizens who should not be penalized for the acts of criminals or the mentally ill. They assert that people who are intent on harming others will do so regardless of any attempts to control access to firearms.

Some argue that our government is dysfunctional, dishonest and determined to undermine their liberty. They believe very strongly, as did many of our founding fathers, in what Madison described in Federalist No. 46 as the “advantage of being armed,” both as a means of self-defense and as a deterrent to government oppression. Others simply want access to what they consider to be the best means available to protect their family.

These are all reasonable arguments made, for the most part, by decent, hardworking and thoughtful people. Never lose sight of that fact. Many who espouse these views are the best and the brightest among us. But are they right about “military style assault weapons” and high capacity magazines? Are they right to resist universal background checks?

No – they’re wrong.

The fundamental question we must ask and answer is as follows. Does the unregulated proliferation of “military style assault weapons” and high capacity magazines make society more dangerous – or less dangerous?

This is not America circa 1776. Nor is it the America of our childhood.

According to the National Center for Education Statistics, 1 out of 4 Americans are illiterate. According to Dr. John Grohol of Psych Central, 1 out of 3 Americans suffer from some form of mental disorder.

According to the 2011 National Gang Threat Assessment, there are approximately 1.4 million active gang members in the United States. Gang members are responsible for an average of 48% of violent crime in most jurisdictions and up to 90% in some jurisdictions.

According to a 2012 report from the Bureau of Justice Statistics, approximately 1.4 million guns, or an average of 232,400 per year, were stolen during burglaries in the six-year period from 2005 to 2010.

Prisons are dangerously overcrowded and state governments lack the resources to keep pace with the increasing demands of prison populations and public safety. The American criminal justice system currently holds over 2 million people in state and federal prisons.  At some point, many of these criminals will be back on the streets.

Economic uncertainty remains a pressing concern for millions. Youth unemployment is on the rise globally and further economic failures may well lead to increased frustration and social unrest.

Special Interests have a stranglehold on public officials whose personal self- interest, in maintaining and consolidating power, now appears to preclude principled governance and compromise.

Given these circumstances, some gun advocates argue that we need more guns for our protection, not less. They argue that government cannot be trusted to protect us.

They might be right. But even assuming that they are right, should “military style assault weapons” and high capacity magazines be the means by which we protect ourselves?  Does the preference of the few, for these abnormally dangerous weapons, outweigh the peril to the many? Do these “military style assault weapons” and high capacity magazines make our families and society as a whole, safer or less safe?

To me, the answer seems obvious and the choice clear. Absent mandatory background checks and some meaningful training and certification requirements, indiscriminate and ubiquitous access to “military style assault weapons” and high capacity magazines makes all of us, including the families of those who possess such weapons, less safe – not safer.

The increased risk to public safety created by having these dangerous instrumentalities in general circulation – without mandatory training, certification and comprehensive background checks, including checks for criminal backgrounds, mental illness, drug abuse and domestic violence – outweighs the individual “right”, if any, to possess these weapons. Moreover, it certainly outweighs the mere desire, unsupported by any constitutional right, to possess such weapons.

As noted earlier, only 1% of the more than 300 million guns currently in circulation are military style assault weapons. So, ask yourself; should one hundred citizens be forced to suffer the risk of a more heavily armed criminal and mentally ill population, so that one citizen can elect to defend their home with an AR15 rather than with a shotgun or a pistol?  Do any of us even want to live in a neighborhood where our neighbors and their children may have access to an AR15, without having undergone any meaningful training, certification and/or background checks? Clearly, this is not what the Second Amendment requires nor what sound policy dictates.

But let’s put aside the question of bans or even limitations on the sale of military style assault weapons and high capacity magazines for a moment. What should our national policy be with regard to the need for universal background checks?

According to a Report entitled “Terrorist Watchlist Screening,” prepared by the Government Accountability Office, dated May 5, 2010, “Membership in a terrorist organization does not prohibit a person from possessing firearms or explosives under current federal law.”

The GAO report goes on to state: “In total, individuals on the terrorist watchlist have been involved in firearm and explosives background checks 1,228 times since NICS started conducting these checks in February 2004, of which 1,119 (about 91 percent) of the transactions were allowed to proceed while 109 were denied….”

How is this possible? How is this sound public policy?

Moreover, current federal law requires criminal background checks only for guns sold through licensed firearm dealers. Those sales account for just 60% of all gun sales in the United States. A loophole in the law allows individuals not “engaged in the business” of selling firearms to sell guns without a license—and without processing any paperwork. This often occurs at gun shows, through classified sales and through Internet sales.

Following the tragic shooting in Newtown which left 20 children under the age of 7 and 6 adults dead, President Obama attempted to close this loophole by introducing legislation aimed at expanding background checks. Polls at the time showed public support for universal background checks as high as 90% overall and as high as 80% among gun owners. Yet none of the legislation passed Congress. Why?

In a February 23, 2013 speech at the Western Hunting and Conservation Expo in Salt Lake City, Wayne LaPierre, CEO of the NRA, spoke about universal background checks, stating, “It’s aimed at registering your guns. And when another tragic opportunity presents itself, that registry will be used to confiscate your guns.” This kind of hyperbole and misinformation does a disservice to all of us. Existing federal law prohibits the creation of a national gun registry and none of the proposed legislation, referred to by LaPierre, sought to change that.

Yet when the vote was taken, the measure requiring background checks for firearm sales at gun shows, through classified ads and on the Internet – received just 54 votes, six short of the 60 vote super-majority required. The background check amendment was not the only proposal NRA supporters helped defeat. Senators also voted against a ban on assault weapons (40-60) a limit on high capacity magazines (46-54) and a common-sense measure to make gun trafficking a crime (58-42).

So why is it that we can’t get Congress to pass any meaningful gun control legislation? Why don’t we, at minimum, require universal background checks and some basic training, licensing and/or certification, to own a “military style assault weapon” and/or high capacity magazines?

Why are sensible solutions demonized as insurrection worthy assaults on the Second Amendment?

The Latin phrase “Cui Bono” asks “Who stands to benefit?”  And that is precisely what we should be asking when we see common sense solutions being ignored.

In 2011, NRA CEO Wayne La Pierre told a conservative audience that President Obama, once re-elected, planned to: “erase the Second Amendment from the Bill of Rights and exorcise it from the U.S. Constitution.”

In 2012, while announcing the NRA’s endorsement of Republican presidential candidate Mitt Romney, LaPierre stated: “… It’s the most dangerous election of our lifetime… All of our freedoms, all of our rights, all of our way of life, all of the Second Amendment is on the line. “ Why does the NRA consistently mislead the public and their membership by promoting such patently false assertions? Who benefits?

The 2008 and 2012 elections of Barak Obama and the panic created by gun advocates, surrounding Obama’s efforts at gun legislation, have triggered unprecedented increases in gun sales and profits. “Cui Bono?” The gun industry benefits.

From Obama’s first inauguration to the day before Newtown, the share price of Sturm Ruger (RGR), the largest publicly traded gun manufacturer, increased by 729%. The S&P 500 increased only 67% during the same period.

Increased hysteria = Increased profits.

The NRA and other ultra conservative groups have continued to fuel the hysteria, surrounding virtually all attempts at gun legislation, while pouring millions of dollars into state and federal elections.

According to federal disclosures and a Center for Responsive Politics analysis,

the NRA and its allies in the firearms industries, along with the ultra-conservative Gun Owners of America, have together poured nearly $81 million into House, Senate and Presidential races since the 2000 election cycle.

Among the 46 Senators who voted to prevent any expansion of background checks, 43 received financial support – either from direct campaign contributions or independent expenditures – from pro-gun interests since 2000. Despite the fact that polls at the time showed public support for universal background checks as high as 90% overall and as high as 80% among gun owners, these Senators voted against background checks.

The simple truth is that our elected officials are more concerned about getting re-elected, than they are with your safety or your wishes. And they know that if they oppose the NRA and groups like it, those groups will ensure that they don’t get re-elected. That total disregard of the electorate by those sworn to represent our interests, represents a far greater cause for public concern than any phantom assault on the Second Amendment.

So where does this leave us?

Successfully resolving these issues will not be easy. It will require education, understanding, engagement, accountability and compromise. Above all compromise. This is not an all or nothing issue. Those who call for wide ranging restrictions on guns are as wrong as those who call for no restrictions on guns. Neither of these views will ever prevail and both increase rather than decrease the likelihood of significant social unrest.

Educating ourselves with regard to these issues will allow us to deal with the issues more intelligently and effectively.

Understanding and appreciating alternative perspectives will allow us to engage in a dialogue aimed at constructive compromise. Examining options for common sense solutions should be encouraged and discussed. Mandatory training and/or insurance are two such common sense solutions. It is reasonable and sensible to require mandatory training and/or insurance for ownership of certain types of weapons. Many responsible gun owners already receive extensive training and carry gun insurance. They even keep proficiency logs. These are sensible measures and sensible people embrace them.

Unfortunately, not all citizens are responsible. For these citizens, laws are necessary to compel responsible behavior. To the extent that making these measures mandatory infringes on the Second Amendment, the government would need a “compelling interest” to enact such measures. Here, they may have one.

Requiring mandatory insurance for gun ownership would have very little impact on responsible gun owners. Actuaries, doing the research for insurers, would be able to identify those who pose the greatest risk to commit a gun crime and insurance would be priced accordingly. It would be more difficult for individuals who likely pose greater risks to get insurance and purchase guns. These are common sense solutions that should be considered and discussed.

Background checks are another important tool for reducing gun deaths. Since its inception, the National Instant Criminal Background Check System (NICS) has blocked over 2.8 million applications and sales to felons, the mentally ill, drug abusers, and other individuals who are prohibited by federal law from possessing firearms. Unfortunately, many gun transfers at gun shows and over the Internet, estimated to be as much as 20% of sales, still occur without background checks. Clearly, there is a need for improvement in this area.

Increased engagement will allow all positions to be heard and ultimately force responsible, elected representatives to take appropriate corrective action. But not all elective representatives are responsible or responsive. Therefore, in the final analysis, requiring accountability from those that you elect to represent your interests is the only thing that will create real change.

We must reject hyperbole and avoid derision. We must examine issues objectively. We must recognize the dangers created by misinformation while respecting, considering and being open to discussing alternative views. We must look beyond our divergent positions and search for common interests. Fortunately, our most fundamental interest – the safety and security of our families – is a shared interest. We simply have differing views on how to advance that shared interest.

I believe that a ban on “military style assault weapons” and high capacity magazines advances our shared interest in public safety. However, I would accept universal background checks, training and insurance as reasonable alternatives aimed at compromise. This would allow for responsible gun ownership while reducing the threat to public safety represented by the unregulated proliferation of such weapons.

Society needs and deserves intelligent decisions. We don’t need hyperbole, rigidity, hysteria or deception.

In the end, change will require active and sustained engagement on the part of those who want to see reasonable gun legislation. It is the passionate and sustained activism of the well- funded pro-gun lobby that is largely responsible for their success in blocking necessary and appropriate reforms. It will therefore require an equal measure of activism in support of the above measures for meaningful reforms to become law.

That activism should be intelligent, respectful and fact based. It should recognize that these are difficult questions upon which reasonable minds may differ. It should recognize that there are very compelling arguments on both sides.

In my view, Americans do not need or have a constitutional right to an AR15 with high capacity magazines. And I genuinely believe (taking all of the above issues into consideration) we are safer without them.