Gun Control and the Second Amendment


Recent news reports indicate that the Virginia Governor has proposed certain new gun restrictions on both the sale and possession of firearms. While these proposals have essentially a zero chance of passing through our State legislature, it does give an opportunity to examine and expound upon our own views on the issue.

A few background facts: I am a gun owner as are many if not most people living in rural America. I rarely hunt but I do hold dearly my right to defend myself, my home and my family should, heaven forbid, the circumstance ever arise. Those of us who reside in rural areas of this country know, even if city dwellers do not, that law enforcement protection is largely theoretical, i.e. the police may solve crimes but rarely prevent them. If confronted with an intruder we either defend ourselves or rely on the criminal’s mercy with the police left to clean up the mess long afterwards. There are some really evil people out there. In my opinion those who rely on their mercy (or upon blind luck to avoid interaction with them) are not only foolish; they are irresponsible, residing in a fantasy land rather in the real world.

Once I had a concealed weapons permit but I let it expire since I rarely carried a weapon except to the gun range. Indeed the primary reason for having the permit was to prevent hassles with the police or others while transporting a weapon in my vehicle since it does not have an enclosed trunk. I, as virtually everyone, have been shocked and dismayed by gun violence and the loss of life, particularly of children such as at Sandy Hook. I am not a fan of the NRA and under ideal conditions would support reasonable laws to protect the public while still preserving the right to bear arms; however, I am concerned by those whose ultimate goal seems to be to remove all firearms from private ownership.

Some of the Governor’s proposals seem reasonable if taken in isolation from other factors; others do not.

As I understand it, the Governor’s proposals include the following:

1) Restrict buyers from purchasing more than one firearm per month ( this was the law in Virginia except for holders of concealed weapons permits and law enforcement officers until 2012 when it was repealed).

2) Require background checks for private sales at gun shows.

3) Making it illegal for anyone who has been charged and/or convicted of domestic abuse to own or possess a firearm or bar possession if under a protective order for domestic abuse or upon conviction of two incidents of misdemeanor simple assault (conviction of a felony already bars the owning or possession of firearms unless the right is restored by court order).

4) Making it illegal for anyone behind in child support to own or possess a firearm and/ or revoke concealed weapons permits of those behind in support payments (reports I have seen vary as to the restriction proposed).

5) Because of recent news related to a law suit filed against the manufacturer of the AR-15 used at Sandy Hook, I include in this discussion one  gun control mrasure which has been proposed many times and for a time was the law although not proposed by the Governor, i.e.  a ban on the sale and/or possession of assault type weapons.

The issue in my judgment  is which, if any, of these proposals would protect the public or whether they restrict Second Admendment rights without purpose other than political advantage and antigun bias. I address my reaction to each proposal below.

1) It is difficult to see how restricting firearm purchases to one a month will protect anyone. There are already laws in effect prohibiting straw purchases  Most crazies need only a single weapon to cause mayhem and even if for some reason they wanted more, most plan their acts well in advance, allowing them to accumulate whatever weaponry they desire despite a one a month restriction.  This proposal is an antigun measure masquerding as public safety, however, it also seems rather benign, imposing only a slight burden on those who wish to purchase firearms for legitimate purposes.

2) Background checks at gun shows for private sellers seems reasonable on the surface.  Gun dealers selling weapons at gun shows already are required to do the background check . Although rarely has there been a report of a gun purchased at a show without a background  check being used by someone bent on crime much less mass murder ( when stolen  guns are readily available on the street, only a truly dumb perpetrator would take the chance of being traced by such a purchase) it certainly is possible this could happen. The additional or alternative proposal that gun shows cannot advertise that no background checks for private sales are required almost certainly is a violation of First Admendment free speach rights since such advertising merely states the existing law (this element shows a certain disdain for all constitutional protections).

The real concern here is the next step contemplated by gun control advocates, perhaps requiring all transfers between individuals, even within a family, to first undergo background checks thereby preventing very common gun transfers, sales and trades that are a routine  part of country life and may severely limit the inheritance of firearms. This cannot be seen in isolation from the fact that in some states firearms (sometimes worth thousands of dollars) are confiscated by the police on the death of the owner and promptly destroyed before heirs can make a claim to them, a direct but fairly common violation of the Constitution provision prohibiting the taking of private property without due process and reasonable compensation.

Subject to clarification, limitations and assurances that no attempt will be made to enlarge the requirment, this proposal has some logic to it.

3.) In the abstact it is difficult to contest why someone who has commited domestic abuse or who is constantly in violent situations should not be prohibitted from owning or possessing  a firearm. There are several problems with this proposal, however.

First, It is unclear whether the proposal would permanently bar a person from having a firearm or whether the bar would be removed at some point (or perhaps require court application for such restoration, which might be a reasonable alternative to a lifetime ban).  Also, the proposal does not make clear whether the bar on having a firearm would include preliminary protective orders which may be imposed without a hearing or an opportunity for legal defense or if the right to own and possess firearms would be automatically restored if the final protective order was withdrawn, dismissed or otherwise ended or nulified.

Subject to clarification and noted limitations this proposal seems reasonable.

4.) The proposal to revoke a concealed weapons permit and/or bar possession of firearms by anyone behind in child support has little to do with protecting the public. There is no evidence or study of which I am aware that establishes or even suggests that someone in arrears in support payments is any more likely to be a danger to the public than someone who has, for example, failed to file tax returns or who owes back taxes, or who is in significant debt or has not paid parking tickets or who is allergic to cats. This is an antigun proposal without even the  pretext of  being justified by public safety concerns. In its most generous interpretation, it is an attempt to enforce support orders, much as drivers liscenses can be revoked or suspended for failure to pay support, however driving is deemed by law to be a privilege, not a Constitutional right. Depriving an individual of the constitutonal right to own and bear arms for failure to pay support makes as much sense as removing a persons free speach right or their right to free exercise of their religion  because they were in support arrears. In part, the proposal reflects many Courts’ reluctance to enforce their own orders either through their contempt powers or through criminal charges for failure to provide legally required support. There is little likelihood this measure would be effective in compelling the payment of support and the measure seems arbitrary in the extreme. It appears to be antigun without any legitimate public safety element whatever. By even proposing this the Governor reveals his antigun bias and anti Second Adnendment viewpoint.

5) A ban on assault type weapons also does not seem entirely unreasonable at first glance. The problem is that there is no clear definition of what an assault weapon is and what would be banned, leaving owners of weapons not intended to be restricted at considerable legal risk. Understand that civilain assault type weapons are not fully automatic as would be the military version (fully automatic weapons are federally banned with severe penalties for violation unless a special federal liscense is obtained).  Assault weapons currently legal for civilian possesion are “semi-automatic,” (more correctly “auto loading”) as are the majority of handguns in private hands and many other weapons that do not fit the usual “assault weapon” description. The defintions used in the past seem to be based mostly on appearance, not any unique design. Laws in the past prohibiting assault type rifles contained long lists of specific models banned with a vague addition prohibiting “similar weapons,” leaving it open to interpretation precisely what was intended.

The rational for banning these type of weapons seems based mostly on their appearance and assumed intended use. The parents of a victim filing the law suit as a result of the Sandy Hook massacre allege negligence by the manufacturer in making and selling a weapon whose sole purpose is use against people. While this is not entirely correct, some hunters do use assault type weapons although more traditional minded hunters have little respect for them, and others enjoy using these weapons at gun ranges, including in competitive matches, it is probably correct to say such weapons are primerly purchased for self and household defense (although I think many who purchase these weapons do so simply because they are cool and fun to fire, perhaps with the thought at the back of their minds that possesion would be desirable for home defense if our society falls apart as some predict). Others purchase assault weapons out of fear the purchase of them will again be banned. (it is a simple principal of economics and human psychology that goods which are deemed desirable by a substantial portion of a population group become even more desirable i.e. valuable, if supply is restricted or the ability to obtain the good is expected to be eliminated altogether).

The problem with banning assault type weapons based on their assumed intended use or the fact that they have been used in the past for crime or by the deranged for mass murder is that the same can be said for virtually all handguns and actually the use of assault weapons in crime, particularly for mass murder such as at Sandy Hook, is extremely rare (despite depictions on TV and in film).  The rational for banning such weapons could easily be used to ban all handguns, which are used in crime and specifically that have been used for mass murder with far greater frequency than assault style weapons. Seen in this light, the Sandy Hook law suit against the manufacturer of the AR-15 weapon used to perputrate that attrocity is not only an attack on manufacturers of assault type weapons; it is an attack on all manufacturers of firearms with the purpose or effect, if succesful, not only of establishing a worrisome precedent perhaps affecting all firearm manufacturers but of substantially increasing their perceived or actual financial risk  ultimately for the purpose of preventing such manufacture or reducing the volume of firearms produced to the point that production becomes financially unviable. (note: with the advent of 3d printing soon permitting the manufacture of weapons at home, the goal of reducing the volume of weapons manufactured through this strategy seems unlikely to be succesful.  Indeed, in the long term it appears that the financial viability of firearm manufacturers is directly threatened by 3d printing and keeping firearms from the hands of felons and the deranged will doubtlessly become even more difficult).

For those who support gun rights this is a wedge issue. We would need to have assurances on an unprecedented level that a ban on suitably defined assault  weapons would not soon lead to a ban of handguns (probably in steps such as restricting  the size of magazines or banning what has become the most widely owned pistols; i.e. semi automatic weapons). We who value the Constitutional right to bear arms will never agree to to the ban of handguns and if that is the ultimate goal of those supporting additional gun restrictions, there is no possibility of compromise.

I understand that these proposals may be seen in other lights by some. As indicated above, if clarified, I would tend to support some of these measures. However, there are two reasons why those of us who are not fans of the NRA and would like to support reasonable and effective gun control legislation, perhaps even some of those proposed by the Governor, to protect the public from both criminals and lunatics bent on mass murder while still maintaining our right to bear arms find ourselves allied with the most extreme advocates of gun rights in opposing any legislation whatever no matter how reasonable it may seem.

The first reason we believe we must oppose virtually all gun control legislation no matter how reasonable it may seem is the continued and repeated assertions by gun control advocates that the Second Amendment does not protect the private ownership and possession of firearms. This is both historically and logically wrong. If the Second Amendment does not ensure the private ownership and possession of firearms, this Amendment is totally meaningless and there is no right protected by this “Bill of Right” whatever. While the Supreme Court recently has ruled that the Second Amendment does provide for and protect the private right to own and bear arms (see McDonald v. Chicago), the vote was 5 to 4.  A single death or retirement of a Justice could lead to a reversal of this opinion. If gun control advocates really want to have a discussion related to reasonable gun control, they must first concede that this Constitional protection is valid. Until there is a consensus that the Second Amendment does protect the individual right to own and bear arms and that such right has equal importance to the rights protected by the First Amendment, we really have nothing to discuss and those of us in the middle have no choice but to support the NRA position of no compromise.

Connected to the Second Amendment issue are the comments we constantly hear from gun control advocates to the effect that whatever proposal is being discussed “is the first step” in gun control. This leaves us to ponder what the next step will be, or the step following that …or the last step (which can only be the total prohibition and confiscation of fireams or regulations so draconian that the effect is the same: see laws in New York City, Britain and Canada). This many of us will resist to the bitter end (and indeed millions of otherwise law abiding citizens would refuse to comply with and would actively resist confiscation laws even if enacted, creating a senario I dont think any of us wish to contemplate).

At this point those of us in the middle of this debate have been left with little choice but to hold our noses as we embrace the NRA and its no compromise position. Perhaps someday those who favor more stringent but reasonable gun controls will modify their extreme positions to allow a true discussion of the public safety and gun control issues to begin. However, I doubt we will see this anytime soon.


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