The Limits of Liberty And The Law: Part 2

On January 12, 2014, Bearing Arms published my article titled:  “Metcalf Apologists At Work: It’s Not His Fault, It’s Yours.”   In that article, I took to task various Leftist authors and media outlets, including The New York Times, for using Metcalf to advance their anti-gun agenda.  A number of readers suggested that I should outline my views on the Second Amendment, and on January 22, I responded with the first of this two-part series: “The Limits Of Liberty And the Law.”

While that initial article was an exposition of the state of Second Amendment jurisprudence, some took it to be a sort of Metcalfian surrender to gun grabbers.  Particularly distressing to some was this sentence:

We know that there is no such thing as an unrestricted right, and that in Heller (District of Columbia Et Al. v. Heller), the Supreme Court acknowledged this reality, while affirming that the right to keep and bear arms is a pre-existing, individual right:

Even in my first article about Metcalf at my home blog, I was obliged to agree with him on one point:  each of the rights in the Bill of Rights has limitations.  There is no such thing as an unlimited right.  One may maintain that “…shall not be infringed” in the Second Amendment means there can be no infringement whatever on the right to keep and bear arms, and I agree fully with the sentiment, but sentiment and reality are, in this case, not the same thing.  We are a constitutional republic, a nation existing under the rule of law, and under that system, and when necessary, the Supreme Court reviews the law and may declare it unconstitutional.  It may also uphold various limitations—infringements—on rights.

The current definitive cases on the Second Amendment are Heller (2008) and McDonald (2010) .  Prior to those cases, only Miller (1939) touched on the Second Amendment in any real way.  Miller did not delineate the nature of the right, but did essentially establish an 18” minimum barrel length for lawful shotguns.  Interestingly, Miller can logically be read to indicate that all weapons commonly in use by the military are equally appropriate for individuals.

One may argue that the Second Amendment means what it says and says what it means and should be interpreted that way—and I would be in agreement—but that interpretation does not comport with the reality of our federal system or of the law.  Ignoring that reality does not help in the never-ending battle for securing the Second Amendment and forcing government to honor it.

The primary reason for the existence of the Second Amendment is to serve as a check on tyranny.  Arms in the hands of citizens allow them to rise up and dethrone those that would rule Americans.  Contemporary progressives howl with indignation at the idea that the Second Amendment enables citizens to resist tyranny, calling it unpatriotic, treasonous, and disdainfully snickering that small arms could not stand against a modern military.  But history teaches us that the Second Amendment was indeed intended to serve as a means to displace tyranny, and it also teaches that small arms are indeed effective against modern military forces (see Vietnam, Afghanistan, etc.).  At one time, Democrats, even leaders of their party like Hubert H. Humphrey, understood this: 

Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizens to keep and bear arms. This is not to say that firearms should not be carefully used and that definite safety rules of precaution should not be taught and enforced. But the right of the citizens to bear arms is just one guarantee against arbitrary government and one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible.

Since Barack H. Obama became President, Americans have been obliged to contemplate the importance of arms in resisting tyranny, and have responded by buying firearms and ammunition as never before.

As I noted in the first article of this series, the Supreme Court—and by extension, all lower courts—apply the judicial standard of strict scrutiny, the highest standard, in examining the constitutionality of Second Amendment issues.  This should mean that no infringement, no restriction is valid unless there is substantial, convincing  evidence that it is necessary to achieve a compelling governmental purpose and unless it has been as narrowly drawn as possible to achieve that purpose.  As I also noted, the minority in Heller, and likely, left-leaning lower courts and politicians, would prefer to apply a far less stringent standard, allowing the shell of the Second Amendment to remain intact for political cover, but allowing any imaginable infringement as a compelling governmental necessity.

Under the current standard, there are very few, if any, restrictions that are constitutionally valid.  This is so because there is no evidence that any of them will in any way enhance public safety or in any way deter criminals or lower crime rates.  Many, in fact, actually endanger the innocent while making the lives of criminals easier, less dangerous, and more productive.

This is particularly obvious when one considers one undeniable truth, a truth that will not be altered by any kind of research or data crunching: criminals don’t obey the law; that’s why they’re criminals.  Expecting people whose normal way of thinking and living revolves around theft, assault, rape, burglary, drug use and dealing, extortion and murder to obey laws relating to what sort of firearms and accessories may be owned and to care about the places where such things are illegal to carry is the very definition of insanity.  In fact, for many types of so-called “common sense” regulation, there is already a very clear example of the inevitable failure of such policies: The Clinton gun ban, AKA the “Public Safety and Recreational firearms Use Protection Act” enacted in 1994 and allowed to expire in 2004.

The law banned a variety of “assault weapons,” which were nothing more than semiautomatic rifles and carbines—some pistol-caliber—many of which were banned from importation by President George H.W. Bush in 1989.  It also banned magazines of greater than 10-round capacity.  It was allowed to sunset with only muted opposition from Democrats because it accomplished nothing but inconveniencing the law-abiding and running a substantial number of Democrats out of the Congress, which arguably was a substantial accomplishment.  Even Bill Clinton admitted that the law was a disaster for Democrats.

In addition, anyone—including judges—willing to consider actual evidence must come to the inescapable conclusion that firearms are by far a benefit to society, as I noted in an August 2, 2013 article on so-called “safe guns” for PJ Media:  

Again, reality is quite different. Firearms are used far more often to save lives — usually without a shot fired — than for nefarious purposes: from 2.3 to 2.5 million times per year. Despite the presence of more firearms in private hands than at any time in history — around 300 million, with about 10 million added per year — firearm accidents are at historically low levels: 0.2 per 100,000 in population, which is down 94% since the 1904 all-time high.

In fact, firearms are far down the list in numbers of accidental deaths:

Firearms are involved in 0.5% of accidental deaths nationally, compared to motor vehicles (29%), poisoning (27%), falls (21%), suffocation (5%), drowning (3%), fires (2%), medical mistakes (1.7%), environmental factors (1.3%), and pedal cycles (0.6%). Among children: motor vehicles (34%), suffocation (27%), drowning (17%), fires (7%), environmental factors (2.3%), poisoning (2.2%), falls (1.5%), firearm (1.5), pedal cycles (1.4%), and medical mistakes (1.3%).

With these facts in mind, let’s examine some—not all—of the most common contemporary areas of contention:

Assault Weapons:  These are an invention of anti-gun advocates and politicians.  There is actually no such thing, though there is a class of military small arms known as Assault Rifles, all of which are truly automatic—actually selective fire—rifles and carbines.  The ubiquitous AR-15 is the semiautomatic civilian version of the select-fire military M4.  All types of rifles are used in only a tiny number of crimes, commonly less than 2%, and AR-15 type rifles are used in a similarly small portion of all crimes committed with rifles.  There are no valid reasons in law, weapon type, or use patterns to justify in any way limiting or banning such common and popular weapons, weapons commonly used for self-defense.

Magazine Capacity Limitations:  Standard sized magazines for the AR-15 are 30 rounds and have been since the Vietnam era.  Standard magazines for common semiautomatic pistols range from 10-17 rounds.  There is no evidence that magazine capacity greater than any arbitrary number such as New York’s 7 rounds or other 10 round proposals will in any way deter or lessen crime.  The utter failure of the Clinton gun ban makes that plain.  Such limitations are a primary example of laws that actually endanger the law-abiding.  Criminals ignore them as they do most laws.

The argument that smaller capacities might lessen the death toll in mass shootings ignores the reality that magazine changes take only a few seconds.  In no known mass shooting incident would magazine capacity limitations have made any difference.  Standard capacity magazines are surely integral parts of the “common and usual” firearms specifically mentioned as constitutional in Heller.

Micro Stamping: California’s 2007 sleeper micro stamping law has recently been put into effect.  The result: Smith & Wesson and Ruger have already announced that they will no longer sell most of their semiautomatic handguns in California.  As I noted in a recent article on the subject, not only does the necessary, effective and reliable technology not exist, even if it did, it would be of no use in deterring or solving crimes.  It is, like virtually every other anti-liberty proposal, nothing more than a means of harassing the law-abiding by making an entire class—semiautomatic handguns—difficult or impossible to possess.

Safe Guns: These are weapons with some sort of device that renders them inoperable to anyone but a specific, designated user.  As I noted in the previously mentioned PJ Media article, like micro stamping, the necessarily reliable technology does not exist, and even if it did it would be expensive and pose substantial risks, risks that would make such guns more dangerous to their owners than to criminals.  Just like micro stamping, such weapons would do nothing to deter crime or lower crime rates, and would do nothing to improve gun safety, which is already, compared to virtually any other kind of accidental injury or death rate, low and trending lower still.  The best and most effective means of gun safety reside in the brains of law-abiding gun owners, not in the minds of bureaucrats and politicians.

Gun Free School Zones: This is easily among the most predictably destructive and dangerous ideas ever enacted by anti-liberty forces.  It is the epitome of Leftist wishful thinking: a thing is so because we wish it to be and because we say it is, and everyone will obey us.  Virtually every mass shooting in the modern era has taken place in a gun-free zone.  What criminal, contemplating mass murder, and usually planning their own suicide, will be in the least deterred by a far lesser penalty for carrying a gun in a gun-free zone?

This is an issue I recently addressed in a three part series on the realities of the Newtown killings.  Part 1 can be found here, Part 2 can be found here and Part 3 can be found here. There is no policy that will more quickly and effectively deter such attacks and greatly reduce or entirely eliminate casualties than allowing willing school staff to carry concealed handguns.  However, this will require changing not only state, but federal laws.  The federal Gun Free School Zones Act of 1995 is the law at issue. It generally prohibits guns in school zones but is virtually never enforced by the federal government.  In fact, the government actually says that it does not intend to occupy this field of law, yet it is still on the books, and few would doubt that the Holder Department of Justice would use this law as a means of punishing its “enemies.”

Background Checks For All Firearm Transfers:  One can reasonably debate whether the government has any authority to do background checks without cause to believe a given citizen is ineligible, but there is surely no compelling governmental interest in making the transfer of firearms between parents and children, relatives, friends and similar transfers the business of the federal government.  Only a tiny portion of guns used in crimes have been purchased legally at gun shows, therefore there is no deterrence and little or no probability that such checks would lower crime rates.

Concealed Carry:  First step/short term: shall issue in every state.  No bureaucrat or politician should have the power to deny the law-abiding the right to keep and bear arms.  Second step/longer term: Constitutional Carry–no licensing or governmental involvement in carrying a concealed weapon for the law-abiding (those not otherwise prohibited by virtue of violent felony convictions or chronic mental health status).  Let police officers that have probable cause determine if a given citizen is prohibited from having arms; don’t make every citizen prove that they are eligible.

Concealed carry has uniformly reduced crime due to its powerful deterrent effect, and the gunfights in the streets predicted by anti-freedom alarmists have failed to materialize.  In a time of dramatically decreasing law enforcement budgets, few policies are more effective in reducing crime.

Enhanced Mental Health Laws:  As I discovered in researching the Newtown shootings, no known or proposed involuntary commitment (IC) law would have prevented the shooter from legally buying a firearm or prevented him from using it.  I don’t oppose efforts to draft effective and constitutional IC laws, but the devil is in the details.  Mental incapacity is often temporary, caused by passing stresses, and no one should permanently lose their constitutional rights under such circumstances.  In addition, it doesn’t take much imagination to realize that some politicians consider anyone that opposes their policies to be crazy and worthy of commitment and “treatment.”  No doubt improvement in law, training and coordination between agencies is possible in some states, but this is a very dangerous potential threat to liberty.

Domestic Violence:  Many people don’t realize that under federal law, anyone convicted of domestic violence, under a DV protective order, or similar charges loses their Second Amendment rights, despite such convictions being mere misdemeanors.  No felony conviction–which prior to this law had always been the standard–is necessary.  In the last two decades, many people have found themselves caught up in this law because of widespread changes in state law that made it mandatory for police officers to arrest someone whenever a DV call occurred.

The Supreme Court is considering a challenge to this law this term, but this is a law that needs to be overturned.  Like mental issues, protective orders are commonly temporary matters, often demanded by spiteful people under great stress, and are all tood often not predictive of future behavior.

Fully Automatic Weapons:  Under federal law, no one can legally own a fully automatic weapon produced after 1986.  In addition, under the National Firearms Act, rifles with barrels less than 16” and shotguns with barrels less than 18” are essentially prohibited, as are suppressors.  Such weapons and suppressors can be owned with the payment of a $200, non-transferable tax, and after an extensive and lengthy vetting process by the federal government.  In addition, prior permission must be obtained to take such weapons and devices over state lines.  There are a number of other regulations involved as well.

There is no reason, rationally or otherwise, for these laws and regulations.  If agents of the federal government may possess such weapons, why can’t law-abiding civilians?  Particularly when we consider that the Second Amendment is written to deter tyranny, it would seem necessary for citizens to have weapons on a par with the military.  The Founders were content that citizens have the most powerful and effective arms of their day, the same arms available to the military.

At the least, a short-term goal should be the repeal of the ban on automatic weapons manufactured after 1986.  How is a submachine gun manufactured the day before that ban different than one manufactured a day later?  This is a prime example of a law designed to inconvenience the law-abiding, a law with no public safety purpose.  Following such repeal, a next step would be to remove–perhaps by steps–the involvement of the federal government in approving citizen ownership.  With the instant background check system achieving the same things, what justification is there for photographs, fingerprinting, etc.?

A larger question comes with larger weapons.  Explosives, man portable missiles, cannon, biological and chemical weapons, even nuclear weapons are a bit more troubling.  Some would surely argue that ownership and use of these weapons must not be infringed either, but there are many practical difficulties.  Many of these do not have the longevity and stability of common firearms and ammunition.  Many require specialized handling, storage and equipment.  In the long list of issues that the supporters of the Constitution, and particularly the Second Amendment have to occupy their constant attention, it would probably be wise to put this at the bottom of the “to do” list, for no other reason than waiting to see how Second Amendment jurisprudence works out over the coming years.

Public attitudes are trending strongly toward individual responsibility and liberty.  Even more Americans are likely, in the future, to become convinced of the intelligence and necessity behind owning and responsibly using firearms.  It would be wise for us to support them in furthering those trends, and in employing truly reasonable, common sense persuasion, arguments that acknowledge difference of opinion, but that have their basis in natural law, logic and the Constitution.