Trigger Restraint (Banning High Powered Weapons Under The Second Amendment)

In the wake of the incomprehensible shootings in Newtown Connecticut which came in the wake of Virginia Tech which came in the wake of the Amish School Shooting which came in the wake of Red Lake which came in the wake of Columbine which came in the wake of  Stockton, CA which came in the wake of Cleveland Elementary which came in the wake of other shootings, explosions, suicides and homicides in schools, America once again is talking about gun control and mental health issues.

Without in any way minimizing the unspeakable acts of December 14, 2012, some numbers are important because individual deaths are just as senseless as multiple deaths.  In the United States, an average of 33 homicides occur each day by guns, over 30,000 people die from gunshots each year.  More than half of those are suicides.  The more guns that exist, the higher the death toll; the more powerful the guns, the more victims result.  The notion that guns are not the problem is patently false.  Because roughly half of the suicides in this country involve a gun, mental health concerns and gun storage factor into the discussion, but guns themselves cannot be left out.

Individual liberties must always balance against societal function.   Amid the heart wrenching photos of smiling first graders and their teachers senselessly killed are strewn thousands more faces, mostly poor, mostly urban, mostly unheralded children and teenagers and adults just as innocent, just as promising, just as lost to gun violence.  Guns, glorified in communities rich and poor (with poor communities bearing the brunt of most enforcement regulations), infest this great democracy with fear, abuse, irrationality and death.  Without common sense and societal restraint, even foundational concepts such as liberty and self determination result in anarchy, the antithesis of democratic aspirations.

Ideas related to more guns cannot provide answers as they do not address the correct question.  The question begged by recent Supreme Court rulings is whether and what types of weapons can be regulated or even banned by the federal and state governments.  In United States v. Miller, 307 U.S. 174 (1939), the Court declared that, absent a direct relationship between a restricted firearm and its necessity to a well-regulated militia, laws related to firearms did not violate the Second Amendment.  Indeed, District of Columbia v. Heller upheld and reaffirmed this idea.   The majority opinion of McDonald v. Chicago "incorporated" the Second Amendment to the states via the Fourteenth Amendment, a ruling so bereft of reason and logic that it boggles the mind; Justice Stevens' thoughtful and profound dissent in that case addresses the problems with that interpretation which will be reduced here to the statement that the Second Amendment's history clearly reflects a protection for the individual states to counter an overly aggressive federal government.  However, since the majority in McDonald depends on the interpretation in Heller, it, too, does not prohibit gun control laws.

Assuming, arguendo, the recent Supreme Court conclusion that there is an individual right to bear arms, that right is not limitless.  The right to freedom of speech is limited by time, place and manner; the right to freedom from unreasonable searches and seizures carries a broad interpretation of "reasonableness"; the right to freedom not to be compelled to self-incriminate permits police tricks and outright lies to coax confessions; the right to a lawyer in a criminal case does not "attach" until after arraignment and on and on.  Restrictions on all weapon purchases, licensing, registration, insurance obligations, safety training, and background checks are all warranted under the Second Amendment.  Outright bans on specific weapons with eminent domain buyback, seizures of qualifying weapons and immediate constraints on production in anticipation of a ban are not only lawful but reasonable acts to protect ordered liberty.

The earliest recorded domestic attack on school children seems to be the Pontiac Rebellion School Massacre in 1764 when members of the Delaware Tribe - who would later face retribution by their elders for targeting children - shot, killed and scalped a schoolmaster and 10 of his pupils.  Tribal assaults were real and therefore colonists often required men to have sufficient arms for protection.

In Colonial America, two great threats existed: the native populations and the foreign rulers.  Firepower was deemed necessary for defense from both threats resulting in the formation and regulations of militias. But a funny thing happened on the way to the nation; General Washington, appalled at the amateurish militias, encouraged a standing army - considered a threat in and of itself to those concerned with individual liberties.  The result was that the Constitution permitted both a standing army but also state militias where, historically, members paid for, owned and knew how to use their own muskets.

Colonists and early Americans were armed not only based on fears of martial law, but because there were no police forces.  Societal norms we now take for granted - First Responders - simply did not exist when the Constitution was ratified.  Today we pride ourselves on great military power in the best trained Army, Navy, Air Force, Marines and Coast Guard.  We train and regulate a national guard and each state has a militia or state guard.  We have federal police forces.  We have state police forces.  We have local police forces.  Regardless of what one's individual position about guns is, we have tackled many of the reasons for individuals to have arms for the common defense.  The proper question is not whether, but how, to regulate high power weapons in the hands of individuals and what restrictions must occur at the federal level. 

The very same people that decry a reduction in funding to the federal military, and seem to insist on policies strengthening the federal government's power over the individual incongruously seem to want a gun in every hand.  This is ideologically dishonest as those who believe in a strong federal government seek less power in individuals while those who believe in a weaker federal government seek to protect individual liberties.  One cannot have a stronger military, more police powers in the national and state arsenals, fewer freedoms to move about and more firepower in the hands of individuals without fomenting significant violence.  That is not an expression of democracy; it is a form of insanity.

One of the issues in Aaron Burr's trial for treason was whether the 50 or so men associated with Burr and the quest for Spanish controlled lands were armed as farmers or as military.  If they had materiel normally associated with warfare, that trial may have ended quite differently as the type of weapon itself could establish intent.  Arming for battle is clearly not part of American gun ownership history.  There is absolutely no protection in the United States Constitution or any other document that has ever graced this planet for an individual to possess for personal use of any kind arms with the made-for-soundbite name: "assault weapons."  The Framers were revolutionaries; they were not crazy. 

Specific items categorized as assault weapons vary; many are lightweight and mobile.  They range from semi-automatic firearms which shoot one bullet at a time but reload without additional human intervention (so that once a shot is fired, provided enough bullets are in the magazine or feeder, the gun will reload it and get another bullet ready to be fired) to grenade launchers.  None of the firearms deemed an assault weapon is a flintlock musket, the most common weapon known to the the Framers - the one that weighed between 7-8 pounds, was difficult to hide, required 13 steps between firings including tearing open a cartridge with one's teeth and which had a fairly poor accuracy record.  If the textualists want to be true to their text, this is the highest firepower that is protected under the Second Amendment's individual right to bear arms.  Few gun opponents would object.

But they do not want to be true to the notion, mostly because the idea that words have some kind of fundamental structure that makes them rigid in time and space itself is absurdly silly and, in relation to Constitutional interpretation, one shared by an exceedingly small and marginalized group.  Two of that tiny group, however, have some clout.  One issue to ponder is, unlike the last high power weapon ban in the 1990's (prompted by another horrific school massacre that people promised to remember but have all but forgotten), presuming Congress can pass a prohibition on some sorts of weapons, what criteria will the Court use to determine its constitutionality?  The correct analysis must focus on the type of weapons as well as appropriate regulations for purchase, use and storage. Fears of judicial reaction must not inhibit any real federal efforts as the mournful eulogies from 26 funerals hang in the air.


There is great talk by gun advocates that, not weapons, but mental health is the crux of the problem as several murderous sprees have involved legally obtained weapons used by severely disturbed individuals.  It is true that access to guns, mostly unlicensed and unlawfully held, in the poorest areas where the greatest number of gun deaths occur seems unaffected by gun control laws and therefore it is fair that we address the laws we have to determine efficacy.   Similarly, the identification, treatment and loss of stigma in regard to mental health must play a role - and not only in the purchase and access to guns, but also as part of the fabric of the American condition - but this does not prevent new laws restricting and eliminating certain weapons.

Under the Supreme Court's own interpretation, a federal ban could apply to the common denominator of all weapons not deemed necessary by the individual states for their militia.  All qualifying items could be removed from commerce through a massive eminent domain buyback and destruction program.  Each state could then further restrict any weapons it deemed unnecessary to its militia that did not fall within the federal ban.  Such a broad prohibition should rankle those who favor individual liberties, even those who despise guns, but it should be deemed constitutional.  Therefore, a compromise somewhere within this almost absolute ban as determined by the states and the free access that currently exists falls within the meaning of the Second Amendment.

Yelling "fire" in a crowded theater does not fall under the broad and grand protections of the First Amendment.  Whatever its parameters, firing automatic weapons in a crowded schoolhouse does not fall under the Second Amendment.  Until we become rational about guns, these irrational murders will continue in leafy suburbs and concrete alleys from sea to shining sea.  We, the People, can  - must - do better to ensure domestic tranquility and establish justice as we continue to form a more perfect Union.