On Tuesday night into Wednesday, I couldn’t sleep until the very late (or very early) hours; after watching President Biden’s speech to the nation, I resorted to escapism: I reread a couple of the James Bond novels in my cherished but now rarely-visited set. Arguably an odd choice given the events of Uvalde; but in every adventure, Bond ultimately dispatches evil and in some way saves innocents.
No one is dispatching evil and saving innocents in Congress today.
In these pages, I try when I can to offer a different perspective – at the very least, a thought that occurred to me about an issue before I heard it spoken elsewhere.
On the issue of gun control, that’s obviously impossible.
Subject to the exception below, “assault weapons” should be banned in America for all but military use and law enforcement. Now.
[In this post, I mean “assault weapons” to include any weapon (and attendant high-capacity magazines) designed or reasonably modifiable to kill a lot of people in a short amount of time, as needed for use in war. I don’t know enough about weapons to make finer distinctions, and lack the patience to quibble with gun rights apologists. If a reasonable case can be made for a weapon’s inclusion within the definition, it’s included.]
Let’s take the Constitution first. For those that hear a lot about the hallowed “Second Amendment,” but have better things to do than delve into arcane legal jargon, Amendment II to the Constitution of the United States of America, ratified along with nine other Amendments constituting our Bill of Rights, 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.
Although this Amendment was written when we had a tiny standing army and our legendary Minute Men had only laid down the weapons they wielded against the British about six years earlier – for context, then no further in the past for them than the Trump-Clinton presidential campaign is to our current day – put aside any question you may have as to whether an amendment, drafted to ensure that our ordinary citizens could have weapons at the ready (to form a “militia”) at a time when it was reasonable to assume that we might again need them to defend our nation, has any application or relevance today. Forget about it. It’s been decided. In District of Columbia v. Heller (“Heller”), written by Justice Antonin Scalia for a 5-Justice majority including present Justices (Chief) John Roberts, Clarence Thomas, and Samuel Alito, the Supreme Court held that an individual has the right to bear arms, apart from service in a militia, for lawful purposes such as self-defense. At the same time, Justice Scalia — a hero to younger conservative jurists such as current Justices Neil Gorsuch and Amy Coney Barrett – was ultra-conservative, but he wasn’t crazy. Toward the end of the Heller opinion, he gave the Court and himself some leeway for the future gun rights cases he knew would inevitably arise:
“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. … [N]othing in our 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. We also recognize another important limitation on the right to keep and carry arms. [U.S. Supreme Court decision United States v. Miller, 1939] said … that the sorts of weapons protected were those “in common use at the time.” … We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ … It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. … It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. … But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right [i.e., that the right is not “unlimited”]. [Emphasis Added]”
Although Justice Scalia’s language can only be described as tortuous, courts have interpreted his words to uphold state bans on assault weapons such as AR-15s (akin to the M-16s he referred to in his opinion). The reason we have not had a federal ban since 2004 is because Congressional Republicans lack the guts to enact one.
There is not time in this lengthy note to address all of gun rights advocates’ supposed concerns; just three of my favorites:
Citizens need assault weapons to protect themselves against an impending government takeover. Let’s put aside reason, dive into the weird world of the Conspiracy-Obsessed, and communicate on their plane: Dude [or Dudette 😉 ], for years, we killed terrorists in the Middle East – smarter, and better equipped than you will ever be — from tens of miles away. If the President decides to take you out, the AR-15 won’t save you. You’ll be vaporized while standing in front of your house, wearing your helmet, waving your weapon and pounding your chest. You won’t even see it coming.
Let’s give guns to the good guys in churches, schools, and stores, and they’ll defend themselves against the bad guys. Put aside the fact that most religious, educators, and shop keepers don’t want to assume the responsibility to defend those within their purview from perpetrators with firearms. How can they reasonably be expected to defend themselves and others in situations that are sometimes beyond the capabilities of trained officers? Aaron Salter, a retired Buffalo police officer, although armed, was outgunned by an 18-year-old in protective gear, and died attempting to defend Tops patrons. It has been reported that the Uvalde shooter was “engaged by law enforcement” before entering the school, but he still got in.
If we start to regulate guns, where does it stop? This … makes one blink. Across this country, citizens have had to register their motor vehicles at the state or local level for many decades; this hasn’t resulted in government or anybody else taking our cars away. One obeys traffic lights and speed limits; these regulations haven’t surreptitiously limited anybody’s operation of his/her car. From time to time, for the public good, one needs to demonstrate driving proficiency to maintain your legal right to drive – a right, unlike the use of firearms, that many literally rely upon to sustain their livelihoods — and no one objects, although the number of victims in the vast majority of negligently-caused automobile accidents pales in comparison to the number of victims of many mass shootings.
What’s the exception to the ban I would impose? Citizens ought to be able to retain the assault weapons they already own. The Fifth and Fourteenth Amendments to the Constitution provide that no person shall be deprived of property “without due process of law.” That said, in addition to a ban on all future manufacture and sale of assault weapons except for and to military and law enforcement authorities, Congress should pass legislation that provides: for a national registry of all assault weapons; that an owner’s failure to register any such weapon(s) within a year after the effective date of the law is a federal crime, making the weapon subject to confiscation and the violator to mandatory fine and jail time; a specific purchase price scale, annually adjusted for depreciation and inflation, at which the government would be obligated to purchase any registered assault weapon offered for sale by its owner; a ban on the sale or other disposition (e.g., by inheritance) to any private party of any registered assault weapon, with a proven violation resulting in weapon confiscation and a fine and jail time for the violator; and since the perpetrator of an injury caused by an assault weapon would almost certainly be beyond civil recourse, a repeal of any laws shielding manufacturers or sellers of assault weapons from civil liability for loss caused by the weapons they manufacture and/or sell, combined with a provision granting anyone suffering physical and/or emotional injury caused by an assault weapon a federal cause of action against the maker or seller of the assault weapon. In order to collect from a defendant under the latter provision, a claimant would need to establish only (i) injury (ii) and that the injury was caused by an assault weapon made or sold by the defendant. Any judgments would not be subject to discharge in bankruptcy.
Such laws would have no effect on citizens’ unlimited rights to purchase, keep and bear multiple handguns, shotguns, or rifles. Even I can see that a citizen might consider more than one handgun necessary for defense of his/her home and a hunter stalking bear would require a more powerful weapon than s/he would use to hunt deer or fowl.
Are any of the proposals set forth in this note going to happen? Obviously not. Are they too extreme? Certainly not. Although it is unrealistic to suggest that banning all assault weapons would have prevented all of the losses suffered by all of the victims of mass shootings that we have witnessed over the past decades – an expert with a long-range rifle can obviously inflict significant damage upon a crowded area — it is fatuous not to recognize and acknowledge that such a ban would have avoided a significant share of the loss and grief – the agony which will never go away — arising from these tragedies. Although it is for the Almighty, and not for me, to judge, I would nonetheless venture that the blood of some of these victims stains the hands of the politicians, who out of fear and ambition have failed for almost 20 years to enact strict controls on assault weapons, every bit as surely as the blood of innocent Ukrainians festers on the hands of Russian President Vladimir Putin.
“So for one who knows the right thing to do and does not do it, it is a sin.”
- Jas 4:17. From the Bible’s only recorded Letter of James, the man referred to as the “brother of the Lord” in the Gospels of Matthew and Mark.
Quite some time ago, I received a comment from a follower of these pages, who suggested that some of these notes perhaps provide me a measure of catharsis, a means through which I address internal conflict regarding issues over which I have no control. There was more than a little truth to that observation, and I admit that such has never been more so than with this post, which borders on rant. Still, I think of these babies, wiped away for nothing. On the morning after the Uvalde shooting, we saw an obviously extremely distraught television reporter indicating that authorities were seeking to determine why the shooting had happened. Despite my complete sympathy for his obvious emotion – he was on the verge of tears – I considered his point irrelevant. I don’t care, “why.” With these terribly disturbed perpetrators, there is no “why.” If there was ever a good faith belief that we could control this risk to our children and ourselves by identifying the crazies, our experience has made a mockery of that belief. We’ll never identify all the crazies. We can’t do worse than we have been by instead doing what we can to keep these terribly destructive weapons out of their hands.
McCoy's Noise 