Ducks in a Row

Ordinarily, gun control is a subject I won't touch. Arguments about gun control tend to quickly degenerate into spittle-flecked rants or did-didn't-did-didn't exchanges about statistics and causality. I get the feeling that anybody with a strong opinion on the subject, pro or con, has that opinion defined in their DNA, and no amount of argument would dislodge it. And yet, here we are with another spate of mass shootings and the Supreme Court hearing oral arguments about firearm restrictions in Washington D.C. I guess it's time for me to disdain the blindfold, flick away my cigarette, and face my fate.

First, here are the 27 words: 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.

Every word in that sentence, other than the conjunctions, has had its meaning debated. The meaning of phrases has been debated. The connection between the two clauses has been debated. The implications of the punctuation have been debated. Everything short of the typeface has been debated. It's as if the framers of the Constitution were guaranteeing job security for lawyers and law professors for all eternity. The crux of the arguments is this: Does this sentence guarantee the rights of states to organize and arm militias, or does it guarantee every individual the right to possess a firearm. Does “the people” mean groups of people (in militias) or individual persons?

What makes this particular case (District of Columbia v Heller) special is that it is arguably the most substantive 2nd Amendment case before the Supreme Court since United States v Miller in 1939. There aren't a huge number of 2nd Amendment cases on the Supreme Court books. The three influential ones are United States v Cruikshank (1875), Presser v Illinois (1886), and the aforementioned Miller. Cruikshank established that the 2nd Amendment “has no other effect than to restrict the powers of the national government..." thus freeing the states to make laws regulating firearms. Presser reaffirmed Cruikshank. Miller concerned a law regulating sawed off shotguns, and ruled that such an instrument had no relation to a well regulated militia, thereby enshrining the collective rights position. And yet, individual rights proponents have cited parts of these cases as supporting their position.

The District of Columbia (which is under federal administration, and therefore subject to the 2nd Amendment under Cruikshank) has an outright ban on the private ownership of handguns. A man named Dick Heller challenged this law on the grounds that the 2nd Amendment guaranteed him the individual right to possess a firearm such as a handgun. The case bounced around in the federal courts, ending with a ruling for Heller, striking down the law. The District appealed to the Supreme Court. And off to the races we go.

I consulted with one of my go-to people on matters of constitutional law and she opined that the Supreme Court would split the difference and make a move towards the individual rights argument while retaining for the states the right to intervene in cases of clear public interest. In other words, a slight shuffle towards the NRA and then a little hop back towards Miller.

I went straight to the transcript of the oral arguments made before the Supreme Court on March 18th.

I recommend that anyone with a little time on their hands take a scan through the 110 pages of transcript. The Supreme Court makes decisions concerning the boundaries on our lives every working day. It is worth it to get a feel of the thought processes of these nine people. The representative for the District is Walter Dellinger. The representative for Mr. Heller is Alan Gura. Justices Ginsberg, Souter, and Stevens give the impression of favoring the collective interpretation, while Scalia, Alito, and Roberts seem to tip towards the individual interpretation. Breyer and Kennedy are difficult to peg, and Thomas, per usual, is silent. They explore everything from contemporary murder statistics to bear hunting to Blackstone's 17th century commentaries on English common law. There is, on page 76, an interesting exchange between Stevens, Gura, and Scalia that gives me the impression that my Con-law source may be right. Remember, Gura is arguing for an individual rights interpretation. I quote:

JUSTICE STEVENS: May I ask this question? Are you, in effect, reading the amendment to say that the right shall not be unreasonably infringed instead of shall not be infringed?

MR. GURA: There is that inherent aspect to every right in the Constitution.

JUSTICE STEVENS: So we can -- consistent with your view, we can simply read this: "It shall not be unreasonably infringed"?

MR. GURA: Well, yes, Your Honor, to some extent, except the word "unreasonable" is the one that troubles us because we don't know what this unreasonable standard looks like.

JUSTICE SCALIA: You wouldn't put it that way. You would just say it is not being infringed if reasonable limitations are placed upon it.

MR. GURA: That's another way to look at it, Your Honor. Certainly -

Here is an opening for a debate on reasonable versus unreasonable restrictions on firearms ownership. The use of the word “reasonable” in law is another one of those job security guarantees for lawyers and law professors. And we are off to the races again.

I have my own interpretation of the 2nd Amendment, but it is unimportant. It's the opinion of the nine black robed people that matters to society at large. I'd like to address some other matters pertaining to firearms ownership and violence.

Human society is, of course, imperfect. People get drunk, get angry, get abused, get addicted, and go temporarily or permanently insane. People lash out, and they lash out with whatever comes to hand. Some people go into a state of merciless cold anger and plan their killings. When they do so, they choose the most effective weapon they can obtain.

Whatever your interpretation of the second amendment to the constitution, you have to admit that our country is awash in firearms. One way or another, they are remarkably easy to obtain, especially for those of us with no felony convictions. There are over 200 million firearms in the United States, and firearms of even moderate quality tend to last decades, so at least this supply will be around for generations. Half the households in our country contain firearms. You may applaud or deplore this ease of access, but accept this consequence:

Mass shootings on campuses will keep happening. Mass shootings at workplaces will keep happening. Shootings of all kinds will keep happening.

They will keep happening even if you lock doors, hire armed guards, stick a pistol in every pocket, run stricter background checks for mental instability, or whatever policy you can dream up. A certain small percentage of the population will choose to injure their fellow human beings, and they will use the tools at hand. They will use their human ingenuity, their obsessive persistence, and the freedoms of an open society to gain access to firearms and access to their intended victims. We are up to our knees in blued steel. We have created a shooting gallery and we are the little cartoonish duck targets going back and forth. We are going back and forth to work, to classes, to restaurants, stores, and friend's houses, a little bullseye painted on each of us.

We can do some things to stanch the flow of blood.

According to the Bureau of Alcohol, Tobacco, Firearms, and Explosives, 1% of the firearms dealers in the U.S. account for 57% of the sales of firearms that end up being used in crimes. To put it another way, 86% of firearms dealers have never sold a firearm that has ended up being used in a crime. 14% have, and of that 14%, 1.2% have sold 10 or more firearms that have been used in crimes. Of that 1.2%, 0.2% have sold more than 50 guns that have been used in crimes, and some of them have sold hundreds. This is either criminal intent or criminal negligence. A lot could be accomplished by cracking down on that wicked 0.2% percent. No new laws would be required. Unfortunately, the National Rifle Association has successfully lobbied Congress to hamstring the ATF in its attempts to crack down on this. It would seem to be a no-brainer, even to the staunchest rank-and-file members of the NRA, that allowing one out of every five hundred firearms dealers to run amok does not contribute to their cause.

Something else to consider is that 70-75% of crimes committed with firearms are committed by people with prior criminal convictions. This is not surprising, but the other side of the coin is more important: 25-30% of gun crimes are committed by previously law-abiding citizens. You know, those citizens into whose hands firearms are supposed to freely flow, according to opponents of stricter control. Longer prison sentences and stricter background checks don't help with this.

According to a study by the Department of Justice, 40% of violent crime involves alcohol. Two thirds of domestic violence involves alcohol. The average blood alcohol concentration of those convicted of serious violent offenses was estimated by DOJ researchers at between 0.20 and 0.28. (I've seen a guy get breathalyzed at 0.17, and he was reeling.) A study in Ontario found that increased membership in Alcoholics Anonymous decreased the murder rate in that province. It makes sense. Universally available, free, repeatable, and well publicized addiction treatment would be a good violence prevention tool. I'd bet the rent that it would pay for itself in avoided costs.

There is one new legislative initiative that I think is absolutely necessary to reduce the criminal use of firearms, and that is the coordination of gun laws between states. Right now there is a phenomenon called “The Iron Pipeline.” This generally refers to Interstate 95, which follows the Atlantic Coast all the way from Florida to Maine. According to a study by Columbia University Professor Dr. Howard Andrews, 90% of the firearms recovered from crime scenes in New York between 1996 and 2000 were originally purchased out of state. Most were bought in Florida, Georgia, the Carolinas, and Virginia, all states with lax gun laws. There is a deadly industry consisting of gun runners traveling to these states and others like them, hiring locals to act as straw man purchasers, and returning home with a carload of guns destined for crime. The strict laws in some states are essentially made useless by the lax laws in more rural states. It will be an extremely tough sell, but those of us in rural states need to start looking at ourselves as part of the larger situation. People in other states are dying for our convenience. Perhaps the National Governors Association is the right forum for this discussion. There is a case to be made for a national minimum standard to be adopted by all states, regardless of population or crime rate, in order to stop the interstate flow of illegal firearms.

Part of the solution is to peel our government out of the grip of the firearms industries. The firearms and ammunition trade is a two billion dollar a year industry, and about a quarter of all firearms end up being used in crime within a few years of manufacture. The firearms manufacturers make a profit on sales to both sides of the legal divide, and they'd hate to lose the Iron Pipeline portion of their income.

The problem of firearms and violent crime in America will always be with us. It is a case of an inherent human failing and a ubiquitous, convenient, durable, and particularly deadly instrument with which to indulge that failing. The men of a rural, agrarian, frontier society two centuries past left us with a seemingly ambiguous 27 word sentence that defines something to do with keeping and bearing arms, militias, “the people”, and the security of free states. Today, partisans with clenched jaws and calcified opinions stare each other down across the collective right vs. individual right divide. My hope is that even if District of Columbia v Heller doesn't resolve anything, it creates some movement in this paralyzed situation.

(Given the generally inflammatory nature of this subject, I ask you to read my Rules For Posting Comments and review your comment a couple of times before posting it.)

Comments

[Herb Martin]

Less than 100 criminals are prosecuted each year for
Brady/NICS violations -- and the vast majority of these
are because the authorities needed to arrest or prosecute
a criminal but can't make the real charge stick, or as a
"predicate felony" for a conspiracy or RICO charge.

The problem with writing on a subject where you are uninformed is that you are almost certain to think up something silly to say such as the claim about the 1-2% of gun dealers -- perhaps they are engaging in something that needs to be investigated but the REAL CRIME is that the government does not ARREST, PROSECUTE, nor CONVICT the criminals that violate the NICS backgroung check. Right on the form it declares a 5 year prison sentence for application by a prohibited person (felon etc.)

Review of the ATF’s Enforcement of Brady Act Violations Identified Through the National Instant Criminal Background Check System
Office of Inspector General's (OIG) Draft Report: Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives' Enforcement of Brady Act Violations Identified through the National Instant Criminal Background Check System. A-2004-001
http://www.usdoj.gov/oig/reports/ATF/e0406/final.pdf

[Flick]

Dishonesty is at the core of anything designed to limit or deny another’s freedom so that one can “feel” better about not taking personal responsibility for ones own thoughts, words, or actions. Honesty requires a level of mental emancipation and maturity many are not ready for.

Some also seem to forget that the Bill Of Rights was enacted specifically to limit the powers of government, not the powers of the governed. That freedom is the responsibility of the citizenry, not the government.

That with rights come responsibilities is widely if not universally accepted. So what is the responsibility that comes with the right to keep and bear arms? It’s in the opening phrase of the Second Amendment. “Owning guns and complaining to your representatives being sufficient to the security of a free state,...” Right? Well that’s what most gun owners seem to think.

For any who wish to take seriously the responsibility that comes with the right to keep and bear arms, I’d like to invite you to explore today’s militia at http://www.awrm.org. We might surprise you, especially if you still believe what the mainstream media and groups like the SPLC say about us.

Peace.

[Heretic]

Mr. Martin - I do agree that the ATF should put more effort into prosecuting those who attempt to buy guns illegally. However, this is only feasible if gun dealers are obeying the law. My "uninformed" writing about the small percentage of firearms dealers responsible for the vast majority of illegal firearms sales was derived from information from the U.S. Dept. of Justice, the same source you cite. The vast discrepancy between the number of crime scene firearms originating at this 1% of gun dealers and those from the other 99% leads to the logical conclusion of either criminal negligence or criminal intent.

"Flick" - I agree that there is a responsibility that comes with firearms ownership. One point I was trying to make is that the effect of the laws that govern my ownership in Vermont have an effect on people in other states. Our responsibility as citizens extends across state lines. Laws that are convenient and proper and benign within my state boundaries have highly negative effects elsewhere. It's the same logic behind the laws that prevent me from installing a septic system just uphill from my neighbor's well.

As for modern independent militias, I must observe that the militias that the framers of the constitution referred to were government entities. Municipal governments (Lexington, Massachusetts comes to mind) authorized, created, and regulated these groups.