Yes, it’s time for me to repeat much of what I’ve said previously about guns in the United States in the wake of the slaughter in Las Vegas. But this has been an interesting news weekend, so first – The President and the Vice-President staged a very expensive publicity stunt today (his schedule apparenly shows VP Pence needing to be in California before the game in Indiana would have ended & the president tweeted about the lack of spontaneity – actually claiming credit). I’m curious about the price to tax payers for this little stunt. And the fascinating wordplay involved in the Vice President protesting a protest by walking out in protest was almost too good to ignore. But yet again, this is little more than a bit of political theater – designed to keep the flames lit – and to make a peaceful protest against a persistent racial inequality in this country about something else entirely – an unpatriotic lack of respect for our military. Um no, and as I, and many other have said before peaceful protest is one of those ‘rights’ that we are constitutionally bound to – and the open fanning of the flames of anger against the dissenters by government officials is, surely in opposition to the spirit of the First Amendment. Yes, the protesters can be criticized, but the reminder that they are within their rights as citizens should not be lost. Of course, on the subject of protesters not being criticized by the government, we have, once again, white supremacists gathered in Charlottesville. This time a much smaller (reports of 40 – 50 people), much more subdued (so far) group, but I expect no criticism of these protesters – who don’t live in Charlottesville – by the White House for their continued push to promote white supremacy and neo-nazism under the guise of preserving history. The President has made it clear previously how he really feels. And yes, they have a right to peacefully protest. And they, too, can be roundly criticized, and their employers should not be pressured by the government to fire them for their peaceful protesting.
Numerically, the next constitutional amendment is the 2nd, but before going back there, I do want to note that, while I think there should be limits on firearms, particularly for the mentally ill, or those on terror watch lists, those limits would not have helped in the case of Stephen Paddock – although reportedly a loner, sullen, and a heavy gambler, he’d never been diagnosed with a mental illness (although it is likely he was mentally ill), and he certainly didn’t have any ties to terrorism. But perhaps looking at our access to semi-automatic weapons – and the corresponding ability to convert them to fully automatic weapons – is worthwhile. These types of weapons have no other purpose than to kill.
It’s important, in any discussion about guns in the US, to understand the 2nd Amendment. I’ve discussed the historical context before, but am repeating it now because it is important to understand. The second amendment to the US constitution, which some people very seriously seem to think is more important that the other 26 – part of a frenzy fortified by the National Rifle Association (more on them shortly) – is a very short, very simple declaration. A mere 27 words, and 3 critical commas, in its entirety, it states this:
“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.”
Oh, if only the founders could have realized how that would devolve through time. But damn those commas. There are two very different ways to read this. One is that the amendment was referring to individuals having a right to bear arms. Period. No exceptions. No restrictions. And it makes no difference what else the amendment says because of those pesky commas. This view is generally referred to a the ‘individual rights theory’. There is a fringe extension of this view, that feels that, again courtesy of the commas, that the individual rights are explicitly to offer protection from the state (which is mostly fueled by paranoia, not the law). The other view is generally known as the ‘collective rights theory’, and is based on the ‘well regulated militia’ opening. The opening clauses are seen as an indication that the true intent of the framers was to prevent congress from interfering with the states’ rights to self-defense. Under this view, the states do have the ability to regulate arms, and the individual use and ownership of them. But the federal government does not.
Until relatively recently, regardless of what some choose to believe, the courts have generally followed the ‘collective rights’ interpretive path in most decisions. The tide began to turn in 2008, though, when the courts ruled that Washington, DC’s highly restrictive gun laws were unconstitutional. Yes, it is really true – a mere 9 years ago marked the very first time that the Supreme Court ruled that a municipality did not have the right to restrict the possession of firearms in the home.
In order to see what happened, a brief history lesson might be a good place to start.
Historically, the collective rights theory partially would include an individual rights view, in so far as individual ownership enabled the states to call upon its citizenry to defend the state, at a time when the state was unable to supply the weaponry. Each of the original 13 States had their own militias, service was mandatory, and you were expected to supply your own weaponry. Therefore, you needed to have a gun so that you could use it in the service of the state. In reality, at that time, you probably had one anyway for hunting your meals. Over time the militias were dissolved, the guns remained, and so did the local and state ordinances that regulated them. The Supreme Court fairly consistently ruled in favor of state control, and in fact, ‘bearing arms’, was considered to be military terminology, and was not generic to owning or carrying a gun for personal use. In fact, in 1840, the Tennessee State Supreme Court, in Aymette v State, specifically stated that the phrase bearing arms “have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment.” They also noted that the state’s statute was in line with the Federal Constitution’s Second Amendment.
Enter the National Rifle Association. Founded in New York in 1871 by a committed group of retired army officers and National Guard members, who were disturbed by the poor marksmanship that they witnessed during the Civil War, the group started out, and indeed spent the next century, as a civic-minded group that promoted the development of marksmanship skills, gun safety knowledge, hunting, and sensible regulation – including the banning in 1934 of the machine guns that were being heavily used by the high-profile bank robbers of the day. But then times started to change, and so did the NRA. Civil unrest and political assassinations in the 1960’s and 1970’s gave birth to a new view – especially after the creation of the Bureau of Alcohol, Tobacco and Firearms. Then, as now, there were conspiracy theorists claiming that the assassinations were part of a concerted effort to disarm the citizenry. And by the late 1970’s the NRA had changed focus – from community and hunting to politics and funding from weapons manufacturers. And the Republican party, in a show of just how powerful the NRA had become, charged from supporting handgun control in 1972 to adding a clause opposing federal gun registration efforts to their 1980 platform. It took the NRA nearly 40 years to accomplish, but by 2008 they had successfully swayed public perception enough that they had garnered the political support, and therefore the sympathetic ears they needed on the courts, to begin to see the second amendment reinterpreted. In a somewhat ironic turn – a constitutional coup was accomplished without firing a shot.
As to where we are now?
First, in spite of memes purporting otherwise – the guns used in most of the recent mass shootings were purchased legally. Even is states, like California, with very strict gun laws.
Second, I am increasingly disturbed by the number of people proclaiming, loudly, that gun laws are wasted laws because only good, honest people would comply. Following that reasoning through to its logical conclusion, those that subscribe to that line of thinking would lean toward anarchy because criminals, by definition, break laws. If we should not bother with a law because some segment of the population will not comply, then why bother with any laws? And, even if you successfully reframe your argument so that it is only applicable to the weapons used to commit crimes, then you need to also consider the simple fact that ALL weapons, except those personally manufactured, start out legally purchased. And the second amendment has an opening clause that you should not ignore if your only argument against restriction is constitutional – as noted above, there is nearly 200 years of settled case law that not only does not ignore that clause, it also defines ‘bear arms’ as being a military term.
Third – seriously, the worship of the second amendment while blissfully ignoring the others has really got to stop. How can you not be overcome by the dissonance when you are shouting about gun rights, and also talking about closing Muslim houses of worship? Or about allowing only Christian refugees to enter the country? Or actually suggesting interring US Muslims (because it worked so well with the Japanese in WWII?). Or of demanding that football players “taking the knee” in peaceful protest be fire by the NFL?How many other amendments do you want violated or ignored to satiate hate and paranoia?
Fourth – the very definition of mass shooting is clouding the issues surrounding gun violence. Frankly there isn’t one, and that is leading to highly misleading statistics being bandied about. Statistically, any shooting involving four or more victims is classified as ‘mass’. And that’s fair, but it isn’t really what the general populace thinks of when they hear that there were more mass shootings in the US in 2015 than days in the year. The public, probably rightfully, thinks of mass shootings as incidents like Charleston or San Bernadino, or Las Vegas, and according to Mother Jones, the total in 2015 was actually 4. Now, that is not to minimize the extent of gun violence in this country – there is far too much – but it is to point out that a gang shooting or a family member killing their spouse and children, are different types of crime. Heinous in their own right, and every victim is important, but a Dylan Root slaughtering people at choir practice for ideological reasons, does need to be classified separately. And this argument over what constitutes a ‘mass shooting’ allows the entire discussion about gun violence to be taken down to a pedantic level over only one aspect of the problem. And make no mistake, there is a problem. And that problem, is generally with legally purchased guns.
Yes, we can debate mental illness, and wring our hands, and yes, pray for the victims. But while that may make us feel better, it does not address the issue. There are an average of 297 people injured every day in the US by guns – and 89 of those die. 7 of those that die are children under the age of 19. 55 of those that die are suicides – with another 10 surviving an attempt. Annually 824 children and teens deliberately kill themselves with firearms, and another 124 are killed unintentionally. And they kill unintentionally as well. And we can debate what constitutes responsible gun ownership when children are around, and acts of God, when a 5 year old kills a 2 year old sibling with a gun that he received for Christmas. But we should also look at a culture that has bought into the notion that a child lacking the muscle development to adequately use a pair of scissors should be handed a loaded gun as a gift simply because the manufacturer decided to sell a line of small & cute pink long guns directed at young children. And oh yeah, it’s my second amendment right. No, it isn’t. These are CHILDREN. When a toddler shoots and kills mommy in Walmart because she foolishly left a loaded gun in her purse, we can all say ‘what a shame’ and be grateful that the child is probably too small to remember what they did. But what about the 9 year old girl that shot her weapons instructor during a vacation outing at a range that specializes in allowing anyone to fire automatic weapons? She was not old enough, or strong enough to manage that weapon, but she is old enough to have what happened haunt her for the rest of her life. No these tragedies were not an ‘act of God’ – they were irresponsible parenting, they were incredibly poor judgement on the part of the adults in the vicinity, they were the byproduct of a culture that has decided to buy into the notion that everyone having ready access to any type of gun, with no restrictions, really makes us safer. The statistics would seem to demonstrate that they don’t. And more importantly, while gun ownership, of hunting and sport, has always been popular in rural areas, including in my home town, and children had historically been given hunting guns in the middle school years, the trend – so obviously started by, and fueled by, a weapons manufacturing industry in search of new markets – of providing guns an ammunition to very young children is obscene. There is really no other word for it. We have allowed gun manufacturers to convince us that beyond sport and defense, guns are suitable toys. A young child, one that has not yet developed the physical ability to perform fine motor tasks, or the cognitive ability to understand death and object permanence, is not ready to possess a firearm.
“When once the forms of civility are violated, there remains little hope of return to kindness or decency.”
– Samuel Johnson