Gun Laws--What is and What Should be

Thursday, May 03, 2007

I started writing this in the comments, but then it got so long, I decided to add it as an article. I apologize for 'hogging' the blog and I promise to shut up for a couple days.

b mac, thanks for your comments, though I'd like to steer you to the following sites, lest you think all pro-gun people are conservatives: Pro-Gun Progressive, Liberals with Guns, and Pink Pistols.

Jefferson also said (quoting Cesare Beccaria), "Laws that forbid the carrying of arms... disarm only those who are neither inclined nor determined to commit crimes... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man,’’ and "No free man shall ever be de-barred the use of arms. The strongest reason for the people to retain their right to keep and bear arms is as a last resort to protect themselves against tyranny in government."

I do agree with what Jefferson was saying in your quote, but we need to cautious as to what we give up in the name of protecting society. One only has to look to the "war on terror" and the resulting Patriot Act to see what I mean.

As for what gun laws should be unconstitutional, that may be difficult to answer and it depends if you are talking about what is, or what I think should be. Under current case law, most gun laws are consititutional. The Supreme Court hasn't heard a 2nd Amendment case since the 1930's. The Federal Gun Free School Zone Act was declared unconstitutional in the 1990's, but on interstate commerce grounds. Congress went ahead and passed it again and said it was interstate commerce. There have been some lower court rulings, most recently the Ct. of App. for the District of Columbia overturned the ban on handguns that had been in place since the 1970's. They stated that there is an individual right to bear arms.

In my opinion, the right to bear arms is a fundamental right (just like the rest of the bill of rights) and should be given the same treatment as other fundamental rights, strict scrutiny:
1. First, it must be justified by a compelling governmental interest.
2. The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.
3. Finally, the law or policy must be the least restrictive means for achieving that interest.

One could reasonably argue that the government has an interest in protecting the citizens of this nation from criminals. Most gun laws would probably be based on this, though many would fail (2) and (3). Most gun laws encompass a great deal of lawful behavior and affect a great number of lawful gun owners. Many of our laws do little to discourage criminal behavior, therefore I wold be hard pressed to find many laws that would be constitutional. A law that prohibits sound suppressors only protects me from fictional movie hit-men. I am unable to find any documentation that they are used in any significant amount of crimes. The now defunct Assault Weapons Ban had no measurable effect on crime, so it would also fail to be constitutional.


B Mac,  2:48 PM  


I agree with you, I am just trying to rile everyone up. I like poking people with a stick. Keeps everyone on their toes.

And I think you hit the nail on the head regarding the need to narrowly tailor the law. Everyone knows what they want gun laws to do: to keep the guns out of the hands of the Cho Seung-Huis of this world. But the fact remains that there are two groups of people; the ones that can be trusted to own guns, and ones that cannot. And from what I can tell, the two groups look awfully similar.

So either the laws will be overly restrictive, or we accept that every now and then, a nutjob is going to open fire in a mall and kill a dozen people. Personally, I prefer the latter, for one reason:

"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." -Ben Franklin

steves 3:08 PM  

It takes a lot to rile me up, so no worries. I take comfort knowing that, while tragic, mass killings in this country are exceedingly rare.

Smitty 6:25 PM  

While I agree that your three criteria make for a good test regarding solid public policy, but I don't see that it has much to do with constitutionality. Constitutionality has more to do with passing legal muster against existing law; there simply can be no conflict between statute and constitutional provision.

thus, many laws are probably simply shitty, totally unnecessary and short-sighted but not unconstitutional.

steves 10:30 PM  

The 3 criteria I list are the standard test used by courts to analyze a law that affects a fundamental right or a suspect class. There are lower levels of scrutiny for other areas. Intermediate scrutiny applies mostly to sex-based classifications. The lowest is ratonal basis, which applies to most other actions. It basically says a law is good if the government says so and gives a lot of deference to Congress and the President.

Smitty 7:51 AM  

I do get the 3 levels of scrutiny, but at the end of the day, the Supremes are looking at conflict with existing law or lending justification or clarification to the structure of the law if not to the intent.

Given that, I argue that most laws are indeed constitutional, just stupid. We repealed mandatory minimum drug laws not because they were unconstitutional but because they did not have the desired effect.

Bob 8:11 AM  

I am no constitutional scholar, but didn't the Supremes, more recently that the 1930's rule that gun control was constitutional in most forms if done by state or local government, just not the federal government? This is how NY City gets away with "banning" handguns.

(This is why nobody gets shot in NY City.)

B Mac,  9:33 AM  

True, handgun-related deaths are down in New York City; however, there were 4,532 musket-related deaths last year.

In the words of a great man, "Guns aren't toys. They are for protecting your family, hunting dangerous or delicious animals, and keeping the King of England out of your face".

Bob 10:14 AM  

I have never really bought into the idea that guns will protect us from tyranny.

Maybe during the revolutionary war, but today a hunting rifle is no match for what the government can utilize against its own. Even if the kids at Tiananmen Square had guns, the tanks would have still killed them.

What revolution has taken place in a post-industrialized society with the people taking up arms? Recently revolutions have been brought about by mostly peaceful pressures: economic or otherwise. How many shots were fired by the people standing up for freedom in Poland, South Africa, the Ukraine, or other former totalitarian regimes?

Yes, our government's recent actions have often made me thankful for the 2nd Amendment, but realistically, when we lose our rights it's not going to be because they were taken from us. It will be when we freely give them up, be it out of fear, foolishness, disunity, racism or all of the above.

Smitty 10:21 AM  

In the 80s, what with the Cold War and totally awesome movies like Red Dawn that I watched 1,000 times as a kid, owning guns to beat-back tyranny seemed so much closer. False, to be sure, but it was there.

But now it is indeed a philosophical argument as much as any. The danger is losing the ability to own them.

Bob 10:52 AM  

I was mesmerized by Red Dawn too and would have preferred living as a "Wolverine" than going to Pinckney Schools.

I suppose this example of using Guerilla warfare tactics to drive a larger, more powerful army out of your nation would be a useful analogy to why we need guns.

I also enjoyed checking out It has interesting examples of liberal needing guns – to protect ourselves from conservatives. I enjoyed everything except a mention of Randy Weaver. That ass could have won his case in court – and eventually did. Instead he hid behind his kids, handed them guns and got two of them and his wife killed, when he should have acted like a man and allowed himself to be arrested or at least got his family out of harms way before fighting.

steves 12:46 PM  

For the most part, my hope that the Sup. Ct. would use strict scrutiny is just a hope, not current reality. At this time, they have given a great deal of deference to the gov't. As for state and local bans. The Sup. Ct., under selective incorporation, has never applied the 2nd to state and local gov'ts through the 14th Amendment, as they have most of the other bill of rights.

Randy Weaver is an intersting case. I have actually met the guy and he is a bit of an ass, but I guess I would be too, if I went through what he did. I suppose he could have given himself up, but I have known other gun dealers that have been ruined financially, fighting BATFE charges in court. I suppose it is better that what happened to him, but I blame the gov't for grossly overreacting and using the force that they did. Thankfully, they have handled subsequent standoffs with more restraint.

Red Dawn was an awesome movie. I am wearing my Wolverines t-shirt right now. I don't harbor any Walter Mitty fantasy of rising up against the gov't and I agree that most people will just voluntarily give up their rights. I also don't believe that most people would stand up well to our military.

OTOH, there have been plenty of examples of smaller, underpowered forces fighting a more modern foe and doing fairly well. I also wonder how the soldiers and gov't agents would react if ordered to arrest or kill their neighbors. There are some interesting fictional accounts of patriot uprisings if anyone is interested.

Smitty 7:53 AM  

I gotta believe as well that our own troops wouldn't be so callous as to kill and capture Americans. If it was an isolated group of well-armed weirdos posing a threat, sure. But when it's well-beyond that, I bet not.

And the fiction is?

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