With a few days until the release of Vice President Biden's committee recommendations regarding gun violence, I thought we should take a look at the 2nd Amendment and talk about its intent and purpose. There's likely going to be a whole bunch of mouth foaming, chest thumping and downright moonbat nuttery after Tuesday so let's examine the center piece of the right to bear arms. After that, I will offer my recommendations for the path I think we should pursue regarding gun safety.
Here is the 2nd Amendment:
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.
Let's talk about the first part ("a well regulated militia"). Alexander Hamilton explains the meaning of this part of the 2nd Amendment quite well in Federalist Paper #29.
This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress."
"If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security...confiding the regulation of the militia to the direction of the national authority...(and) reserving to the states...the authority of training the militia"
This first part of the 2nd Amendment establishes the intention to repel invasion, suppress insurrection, and locally enforce the law. Essentially, what Hamilton is describing here is the National Guard, the modern day equivalent of a militia system. He is very careful to point out, however, that the national authority has the power over this organization, not the states themselves. After all, it is the federal government, not the states, that are responsible for providing national security. He concludes this paper by dismissing concerns about tyranny (let's remember that for a little later).
The next part of the 2nd Amendment talks about the right of the people to keep and bear arms and how that shall not be infringed. Some Constitutional scholars have taken this to mean as part of the militia but not as an individual. I disagree. It's clearly the individual and it doesn't matter whether or not they are in the military. This would be the part of the amendment that says that people (as a collective or individuals) have a right to defend themselves. Exactly what they are defending themselves against is where the problems begin.
The chief complaint about the Right is that they must have access to whatever they deem necessary to defend themselves. This includes the weapons of war that a soldier would use. In looking at Hamilton's explanation of the 2nd Amendment above, it's clear that he (and the founding fathers) did not want clusters of mini armies around the United States. He wanted a national army to preside over the local militia and provide the people with basic defense. The key word here is basic.
Justice Antonin Scalia, in writing the majority for DC v Heller, said
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ... For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.(54)
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our [majority] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (54-55)
We also recognize another important limitation on the right to keep and carry arms. [Precedent says] that the sorts of weapons protected were those 'in common use at the time' [the Second Amendment was approved]. ... We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons. (55)
Scalia reiterated this point on Fox News last summer.
Scalia said exceptions to gun rights were recognized when the Second Amendment was written, including a tort that prohibited people from carrying a “really horrible weapon just to scare people like a head ax or something.”
Here we see a conservative justice leaving the door wide open for a qualitative analysis of the 2nd Amendment.
With violent crime on the decline, I often wonder why the gun rights folks would be so worried about domestic types of violence that they require the modern day equivalent of a head ax. Why do they need multiple guns and ones with magazines that hold 30 bullets or more if there are less people, not more, that are victims of violent crime? The scenarios they come up with as possibilities are so unlikely that I honestly have to laugh. I mean, they don't all live in Compton or Cabrini Green!
So, we all know now (thanks to Alex Jones' mouth foam on steroids the other day) the real reason why they want their own arsenals: it's because they think our government is tyrannical. They view Democrats and the president as illegitimate holders of office who are just waiting (any day now...) to institute a totalitarian regime and send us all to re-education camps. Many like Kevin Baker think it's going on right now and their guns are the only things that are preventing a "full" takeover. In short, Barack Obama is King George and 1776 will commence again.
Here's a little hint for them: if the federal government was really the fascist regime they say it is, they'd be hog tied right now, sans guns, and being forced fed, Clockwork Orange style, Karl Marx and gay porn. Because the simple fact is, folks, the government has much bigger and far more numerous weapons than your average gun rights person. Remember, our armed forces have more firepower than the next twenty countries combined.
And many on the Right know this because they support the funding of this every day.
Thus, we come to the ultimate irony that is the gun lobby. They scream loud and hard about tyrannical governments but they shout with equal force about how defense spending is rock solid Constitutional. So, in essence, they are supporting (with gusto) the same "tyrannical government" they fear will come some day to take their guns away...fueling it more and more every year with sophisticated weapons. In essence, they are empowering their "enemies" so their position makes no sense to me.
Now, to be fair, there are a growing number of libertarians (a few who post here like juris) who would like to see the defense department gutted. Many of my present and former students who are of a libertarian bend (there are quite a number of them, btw) want the same thing. At least they aren't hypocrites but they are wrong about the government. Tyranny is not going to happen here for a number of reasons. Our government is not a monolith. We have a brilliant system of checks and balances that will not allow a situation that would require insurrection. This lack of true central power is evident as DC is filled with a whole host of mini power bases who all struggle with one another on a daily basis. The end result is that not much gets done. If anything, the government is sedimentary which is a different kind of danger and one which we feel the consequences of every day. Of course, this is why shootings like Sandy Hook and Aurora have taken place.
So, I'm pleased to see that the plan that the Biden Group is going to release is going to be comprehensive recommendations that bring together all of the elements that are needed to lessen the possibility of this happening again while, at the same time, maintaining the right to bear arms. It's not going to simply be a matter of limiting the type of weapon or having a military grade classification of some weapons. It's going to mean background checks on every single gun purchase in America. No more loopholes for gun shows or internet sales. It's going to mean regular safety checks and mental health exams as well as demonstrating need to own certain types of weapons. Now that we know the profile of these shooters, we can make every effort to ensure that people like Adam Lanza never be allowed to have guns. This is where the mental health element comes in and, folks, it has to be taken seriously with a national effort to remove the stigma of having and seeking treatment for these sorts of problems.
With all of this in mind, here are my action items that would enable us as a nation to take giant steps towards solving this problem.
1. Vastly improve mental health in this country from a federal level all the way down to a community level. Launch a multi-pronged campaign to remove the stigma of talking about this and aggressively encourage young men who fit this profile to seek out help.
2. Universal background checks for every single person buying a gun at any time. Background checks are common in just about everything these days (getting a job, apt, buying a house or car) so there should be no problem requiring everyone to do this. No more gun show or internet loopholes. Private sales are also included here. Stiff penalties for those who break this law.
3. Classify weapons like the Bushmaster as military grade and require those who wish to own it to go through more rigorous screening. This system should be modeled after the Israel paradigm. This will likely cause mouth foaming on the part of gun rights folks. This is when their paranoia, laziness, irresponsibility and insecurity need to be exposed. Their nervousness about showing their moonbat too much in public is evidence enough that they know they are in the very small minority on this one. In short, we need more national interviews with folks like Alex Jones:)
4. A national tracking system for the movement and sale of guns. Few on the right whine about this when it comes to tracking Muslims or how much Sudafed people buy. This can help law enforcement catch criminals in a more timely fashion.
5. Armed police officers in every school. This is already true of many high schools but this should extend to junior high and grade schools as well. Funding, of course, is lacking in this department along with man power so it may have to be, at least at the outset, that increased patrols serve the need for the time being.
6. Make gun trafficking, giving a gun to a minor, and having a gun near or in a school a felony. In short, zero tolerance.
7. Step up prosecution of criminals who try to buy guns and crack down hard on rogue gun dealers.
8. Have regular gun buy back events and offer large amounts of cash for weapons that are military grade and clips above 10 bullets.
Obviously, this is not an all-encompassing list but it's a start. Note the absence of a two items:
1. An assault weapons ban or a ban on high ammunition clips. One of these or both will likely be in Biden's proposal on Tuesday. Not only is not a good idea politically but it won't have any sort of measurable effect other than piss people off who can marginalized and exposed for their nuttery in other ways. It's important to note, as I have above, that such a ban would not be unconstitutional, as Justice Scalia explained above. Further, the notion that all guns (rifles, shotguns, handguns) are going to be taken away after Newton is silly. It's not going to happen.
2. Banning gun free zones. The only people that should have guns in schools are police or trained security personnel. Allowing teachers, staff, or an Alex Jones type parent to carry a gun into a school is not a good idea. My reason for this is that I simply don't trust people. As I always say, it's not the guns, it's the people, specifically Americans. They suck with guns and have proven themselves to be massively irresponsible with them.
At the end of the day, I don't think that all of these ideas are perfect nor will they entirely solve the problem. That's the caricature that the Right uses to paint the left and then when things don't fall together so neatly (as they often do in life), they can play the adolescent blame game and capitalize on people's ignorance and fear. They have nothing themselves and it's far easier to be a critic than actually have the balls to put something forward.
The items on my list are meant to be a beginning down a path that will likely be a long process. Guns are not the reason why our society suffers so much violence. It's the people and our culture.
It's time for both to change.