A Reasonable Approach to Gun Regulation

I have written two articles on the meaning of the Second Amendment of the United States Constitution, the latter noting that, for the first time, the Supreme Court had accepted a case for review that would, perhaps, explain the original attempt of the Amendment. Fellow CP Jim Clayton commented on some of my views and submitted a fine and lucid article, Gun Nuts aren't, No Matter What Some Allege, in which he strongly defends his right to own a virtual arsenal, a variety of weapons.

In his generally complimentary review of my articles, Mr. Clayton noted that I had attempted to discuss the legal controversy without stating a position. He is quite correct.

But now I shall.

There are two distinct issues involved. First, the original meaning of the Second Amendment and, second, whether gun ownership and possession should be strictly and closely regulated to the extent that such ownership and possession be discouraged,

The first issue may, in my opinion, be quickly resolved. The Amendment has an introductory phrase that is clear:

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.

Over the years, there have been two conflicting views of the Amendment, First that it applies to the "right to bear arms" in connection with a "well regulated Militia" and, second, that the Amendment is not a collective one but a statement as to the rights of every individual. I believe that the plain meaning of the words compel the former position. The Amendment does not grant an unlimited right to bear arms outside of a trained Militia.

This view is supported by the contemporaneous similar provisions adopted by the states. Most include the qualifying phrase, "a well regulated militia". On the other hand, as a liberal I am compelled to raise objections to my own beliefs, the Vermont formulation simply stated, "That the people have a right to bear arms for the defence of themselves and the State..." and New Hampshire's: "Congress shall never disarm any citizen, unless such as are or have been in actual rebellion. Each of these refers to an individual's rights.

The advocates for the universal and unfettered right to possess any arms are, in my opinion, incorrect in relying on the Second Amendment. Even if the Amendment granted individual rights, unrelated to "a well-regulated militia", the possession of guns could and should remain subject to regulation.

For example, the First Amendment forbids any law intergfering with the freedom of speech and of the press, yet the Courts have upheld laws against obscentity, libel, and slander. Language on radio or television is subject to fine and loss of license. The right of assembly has not prevented restrictions of peaceful protests of government action.

So the issue, in my opinion, is not how the Second Amendment is interpreted; the real issue and contentious one is the right of the Federal, state or local government to impose regulations and limits and, even, ban gun possession.

I believe that even the most fervent gun owner will agree that felons, persons with mental instability, children and, perhaps a few other groups should be forbidden to own, possess or carry firearms. Most persons would also agree that there is a distinction to be made between rifles commonly used for hunting and sub-machine guns, anti-tank rockets, and explosive devices.

I also believe that gun regulation should be on a local or, at least, state level. There are valid reasons to restrict guns in crowded cities, such as New York and Washington, that might not be so important in a sparsely settled area such as the Dakotas or Wyoming. It may be, in the opinion of local authorities, that rifles be freely permitted and handguns severely restricted.

The degree of regulation is subject to debate and it should be debated.

But the issues are not whether all weapons be banned or whether the ownership and possession of all weapons be allowed. Neither extreme position is feasible. There are too many guns "out there" to eliminate weapons.

There is one rule that I would impose for all weapons. There must be registration of all weapons. Let those who perceive of a paranoid-induced scheme to seize their weapons relax. The purpose of registration would be to compel strict and absolute liability for all injuries or death caused through the weapon to be imposed, civilly and criminally, upon the registered owner.

Thus if a gun owner has his or her weapon stolen, or if the owner's child gets access to the weapon, the owner remains liable if anyone is injured or killed. Period. The concept of absolute liability due to a dangerous instrumentality is common place in the law. This will insure that the gun owner secures the weapons safely and that he or she will not be careless.

I, personally, would welcome a real debate, one based on reasonable regulation and safety. Those who assert that their gun is never to be taken away, need not enter the discussion. Those who want their guns to protect themselves from the armed forces of the Federal government should image holding out against the firepower of the Air Force or an army division. It's not going to happen.

Let's get real.