Bilerico Report

Here’s what we can do to fight gun violence, in spite of the Second Amendment

Newtown shooting gun control protest

Gun control protest after the Sandy Hook Elementary School shooting. Indianapolis Star/AP/Charlie Nye

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.

Second Amendment, United States Constitution

Though the framers of the Constitution imposed “the right of the People to keep and bear arms,” as with all laws, our legislators and, more specifically, our judiciary defines its parameters.

To engage in a reasoned discussion from the same vantage point, we must study not only the precise or strict text of a law or regulation, but also investigate the supporting or modifying laws and rulings related to it.

For example, the U.S. Supreme Court has expanded the definition of “A well-regulated militia.” The Court, in its 2008 ruling in District of Columbia v. Heller extended the right to individuals. From the ruling:

“The Second Amendment guarantees an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” That right, however, “is not unlimited.”

Though the types of firearms at the writing of the Constitution appear rather primitive compared with the technologically-evolved weapons of today, in 2016, the Court ruled on this point in Caetano v. Massachusetts:

The Court has held that the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding, and that this Second Amendment right is fully applicable to the States.

So, does this mean that all firearms, even the military-style semiautomatic or so-called “assault” weapons, must be available for sale to individuals under constitutional law?

In four separate cases in different federal Circuit Courts of Appeals, judges ruled that states placing bans on semiautomatic weapons, are, in fact, constitutional, and that the Heller decision excluded these types of weapons. Therefore, individual state laws were upheld.

  1. Washington, DC, Circuit, 2011: Assault weapons and large capacity magazines are “too dangerous for self-defense reasons.”
  2. 7th Circuit, Chicago, 2015: Upheld a ban on “any semiautomatic gun that can accept a large-capacity magazine.” Also, the concept of Federalism allows local municipalities to enact gun safety restrictions.
  3. 2nd Circuit, New York & Connecticut, 2015: Unanimous ban: “semiautomatic assault weapons have been understood to pose unusual risks,” resulting in “more numerous wounds, more serious wounds, and more victims. These weapons are disproportionately used in crime, and particularly in criminal mass shootings like the attack in Newtown. They are also disproportionately used to kill law enforcement officers.”
  4. 4th Circuit, Richmond, 2017: Maryland’s ban on 45 kinds of assault weapons and its 10-round limit on gun magazines were upheld as constitutional.

To date, the United States Supreme Court has decided not to review these lower court rulings.

In addition, the federal ban on assault weapons, the Public Safety and Recreational Firearms Use Protection Act, was enacted by Congress in September 1994. The ban, which also included barring high-capacity magazines, expired in September 2004 as required in its 10-year sunset provision. The measure has not since been reauthorized by Congress.

As a provision inserted as a rider into the 1996 federal government omnibus spending bill, the Dickey Amendment, named after Arkansas Republican Representative Jay Dickey and lobbied heavily by the National Rifle Association, passed the Congress into law. It mandated that “none of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention (CDC) may be used to advocate or promote gun control.”

So, what other limits, on the national, state, and local levels, should we as a nation consider and enact on the sale and ownership of firearms? Many people within the larger Gun Safety Movement have proposed “common sense” solutions. Unfortunately, what one person determines as “common sense,” another personal considers as “freedom killing.”

How free, though, are any of us as an estimated 11,000 people are murdered annually, and another 22,000 lose their lives by guns through accident or suicide? How free are we as the guns lobby purchases our politicians in the service of firearms manufacturers in their quest to acquire even more power and profits?

Short of repealing the Second Amendment in its entirety, which has no chance of succeeding in the current political climate, I propose what I consider as common-sense firearms safety measures:

·       We must ban and criminalize the possession of semi-automatic and so-called “assault” weapons.

·       We must close loopholes such as buying a weapon at a gun show.

·       We must ban the purchase of firearms from those on the federal “no-fly” list, anyone convicted of domestic violence, and anyone who has a restraining order against them.

·       We must repeal the Dickey Amendment.

·       We must continue and extend the ban on the purchase of firearms and ammunition on the internet.

·       We must ban so-called “Bump Stocks” and other technologies that increase the speed or force of semi-automatic weapons.

·       We must increase the waiting period and make background checks universal and more rigorous and effective in the purchasing of firearms.

·       In addition, we must initiate background checks each time an individual purchases ammunition.

·       We must limit the number of firearms any individual can own.

·       We must limit the number of bullets any firearm magazine can hold.

·       We must ban and criminalize the purchase and possession of “armor piercing” bullets, and hollow-tip bullets.

·       We must ban so-called “ghost guns,” which are kits that include gun parts the owner assembles into a completed firearm.

·       We must hold gun shop owners liable when selling firearms and ammunition to anyone who is not legally eligible to own, such as minors, felons, or people with a history of mental illness.

·       We must initiate an anonymous reporting system for persons wanting to report suspicious behaviors of those who own firearms.

·       We must limit the purchase of any firearm to the age of 21 and above.

·       All firearms owners must take and pass a course in the proper use and safety of their weapons.

·       All firearms must contain a safety device designed to prevent the discharge of the weapon by unauthorized users.

·       We must rethink the “logic” of permitting concealed weapons, especially in places like houses of worship, colleges, bars, restaurants, and political rallies.

·       The U.S. government must increase funding for research investigating the causes and solutions of gun violence.

·       We must interface all data bases monitoring firearm ownership to assess the firearm-owning population more accurately and effectively.

And we must stand with the courageous, intelligent, and articulate young people of the #NeverAgain movement for gun safety who are poised to save our country from itself.

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