A 2nd Amendment Litmus Test or Pledge?

As conservatives we or similar-minded people/organizations have adopted some litmus tests for candidates, or at least some pledges that we’d like to see, in regard to some issues, and candidates either pledge their support or not.  While this isn’t a reasonable thing to do with regard to complex issues (for example,  “all of foreign policy”), it is a reasonable and worthwhile thing to do with regard to reasonably straightforward issues such as abortion and taxes. Yet there is one reasonably straightforward issue that hasn’t been the subject of a specific position to which we have asked candidates to agree with or not, and that’s gun control.

I submit the following lines of argument and recommended policy positions as the beginnings of such a position to which we can then ask candidates to pledge their support.  NOTE: this site can generate some rabid comments, and this issue in particular seems to excite the emotions.  If you comment, please remain calm and stick to the question at hand, namely: is this a reasonable place from which to begin a second amendment pledge position?  Not: did I make a mistake or two somewhere?  Not: is this a perfect articulation?

The context for this is that I am a police officer, and a very slightly different version of the following was (and still is) posted at Officer.com, one of the largest law enforcement portals in the world here, under my real name. It’s my observation that most law enforcement officers are against additional gun control laws and many even favor fewer restrictions on gun ownership by citizens.  (This is in contrast to Chiefs of Police, who are usually politically-appointed officials and who in many agencies are more politician than police officer.)   The comments to my piece at Officer.com have all been positive (although some were kinda hard to follow, which is par for the course with regard to comments on any post, including those at this site).  I start with the logic of ths situation as I see it, and then use those arguments to suggest policy positions at the end of the piece, some of which would have interactions with each other if they were implemented.


No Controls Necessary?

First, there are a number of people–including some POs, I’m sure—who are of the opinion that no (that is, zero) controls are required on any arms.  They will often cite a “rights’ view of arms, specifically the second amendment’s phrase “the right of the people to keep and bear arms shall not be infringed.”  This minority view needs to be addressed first so that we can proceed to the main arguments.

There are two main lines of argument against this zero-controls view.  First is the common sense one that no rational person believes that someone should be able to store a nuclear bomb in their basement or transport one in their car’s trunk.  Since (I trust) we all agree on this point, then we have all just agreed that there needs to be some restrictions on the meaning of “bearing arms”—it’s just a matter of deciding what restrictions are appropriate.

The second line of argument is that both common sense, and certainly the courts, have always recognized that rights are subject to limitations.  We all know that the first amendment’s right of free speech (Congress shall make no law… abridging the freedom of speech…) does not give you the right to yell “fire” in a crowded theatre.  We have all had drummed into us that the fourth amendment doesn’t protect citizens from search and seizure, but rather from unreasonable searches and seizures.  The eighth amendment protects us from excessive bail and fines, not bail and fines.  And so on.  Recognizing that rights can be justifiably limited, we can ask what restrictions might be reasonably placed on the “bearing of arms”.

(Another line of argument might start by noting that probably the most powerful weapons available in the late 18th century when the Bill of Rights was written were cannons.  Cannons are puny weapons compared to weapons today, and today’s much more potent weapons make some restrictions advisable even if there were no restrictions at the time of our country’s birth.  This is an anti-strict-constructionist argument, and is thus a controversial one.  Fortunately we don’t need to go down this avenue since I trust that we’ve all pretty much agreed—as per above—that some restrictions can be appropriate; we just have to decide where the lines are drawn.)

A Well-Regulated Militia

The second amendment reads: 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.  The first two phrases of this amendment, A well regulated Militia, being necessary to the security of a free State, have been the source of much confusion and debate over the years about whether the right to “keep and bear arms” applies only to a militia and just what the modern-day equivalent of a militia is.  Well, actually the debate over the second amendment’s meaning, from a historical, contextual, semantic and comparative perspective is settled.  The vast majority of serious second amendment scholars are of the opinion that the second amendment recognizes an individual right of arms ownership.  Of the 30+ substantive law review articles about the second amendment published since 1980, only a couple have come to a different conclusion.  Even many scholars who are personally against an individual right have reluctantly come to the conclusion that that’s what the second amendment was meant to recognize (but they aren’t happy about it).  We can accept as settled constitutional law such a right irrespective of the opinions and efforts of politicians and some jurists (such as Justice Ginsburg) to the contrary.  (By the way, the term “well-regulated”, in the parlance of the times, meant “well-trained” or “competent”, not “heavily controlled”.)

We also need to consider the fact that an armed society is the final barrier to totalitarian rule.  It is a historical fact that totalitarian regimes have had to disarm their societies before they could start their mass slaughter—think of the Khmer Rouge or the Nazis, for starters.  While the possibility of totalitarianism may seems remote in America today (or not, depending on your view), the fact is that an armed society is what ultimately prevents (or will prevent) it from becoming a reality.  As United States Ninth Circuit judge Alex Kozinski said not too many years ago: “The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed–where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once“.  It is inconceivable to me that the founding fathers, who had just thrown off a government by force and by arms–a government that was hardly totalitarian by today’s standards, did not have this thought in mind when they enshrined the right to keep and bear arms in the second of ten constitutional amendments (the ten amendments that compose the Bill of Rights are not randomly ordered).

An Even More Fundamental Right

A right that is so fundamental, so common-sensical, so viscerally obvious, so long-established, so humanistic, and so necessary for a just society that it needed no enumeration in the Constitution or Bill of Rights is the right to self-defense.  It would no more occur to the founding fathers (or anyone of the time) that a right to self-defense needed to be recognized than a “right to eat” needed to be.  And yet today we have arrived at the point where the right to self-defense is under attack (no pun intended) from seemingly every quarter.

Individual self-defense is impossible in many cases without weapons, including firearms.  This point is so obvious that I will treat it as self-evident.  Thus, in order for citizens to exercise a right that has been recognized since long before the United States existed, they need to also have the right to own and carry arms appropriate for self-defense.  You cannot simultaneously assert a right and deny the expression of that right.  Saying that self-defense is a right yet denying the right to carry a gun is like saying that free speech is a right while outlawing printing presses.

So Where do we Draw the Line?

I think we can all agree that weapons of large-scale war should be legitimately forbidden to the general public.  No one proposes that megaton bombs, for example, are legitimate in civilian hands, and I think that most of us similarly agree that even smaller military-only application weapons like surface-to-air missiles can be legitimately controlled.  On the other hand, I think we can agree that weapons that can be legitimately used for self-defense ought to be allowed.  Thus the litmus test for what’s permitted should be “Is this a weapon that has legitimate self-defense use?”  This gets us away from the “sporting use” test so often proposed by gun-control advocates (which, besides being nebulous—on purpose I believe–is also a complete red herring), and away from the loaded vocabulary of words like “assault weapon”.

Now, here’s where it gets a little politically incorrect (in some circles), but the logic holds: so-called “assault weapons” such as the AR-15 are by definition and by design individual self-defense weapons—that’s why they are issued to soldiers and police officers for individual defensive use.  (To keep it brief, I will skip here the argument that many “assault weapons” are indistinguishable in functionality from some traditional hunting rifles, and that many unchallenged hunting rifles are much more powerful than any “assault rifle”.)   To those that think that no self-defense situation could ever call for a small-caliber rifle with a magazine capacity of more than ten rounds, I’d suggest that they consider situations like social unrest (the LA riots, for example), social breakdown (hurricane Katrina, for example), persons targeted by gangs of criminals (people advocating unpopular political positions, or people who have to keep large sums of money at home or at their place of business).  The list can easily go on.

Of course, between these two categories—handguns, hunting arms, so-called “assault rifles” and so on the legitimate self-defense end of the spectrum, and large bombs and mortars on the other (legitimately restricted) end—there naturally exists a gray area.  I propose that weapons in that gray area (perhaps .50-caliber rifles might be at the low end of this gray area) be granted the benefit of the doubt, and only controlled if they in fact ever become a genuine menace to society’s safety (not just used in an occasional crime, as every weapon is and will be).

But Why do You Need…?

One of the arguments that’s often raised against the ownership of certain arms such as over 10-round handguns and rifles is “Why do you need (fill in the blank)?”  Excuse me???  When did someone else’s—let alone some bureaucrat’s—opinion of someone’s needs become a restriction on their right to own something?  What does need have to do with the right to make a purchase in America?  If someone wants a pickup truck, they should be able to buy one.  If someone wants a large-screen TV, likewise.  And so on—so long as the purchase per se doesn’t physically hurt someone, then what right does any other person have to say that someone can’t spend their money in the way that they best see fit.  That’s totalitarian!

But guns are dangerous, they say.  Yes they are—that’s their purpose; if they weren’t they’d be no good at their intended self-defense function.  But consider this: everyone on both the right and the left will quickly (and correctly) agree that ideas are the most dangerous of all things.  Millions and millions of people have died as a result of an idea that they or their killers held.  From our servicemen and women dying for the cause of freedom, to the Jews who died in the Holocaust, to the victims of terrorism to…well, you get what I’m driving at: ideas are the most powerful—and dangerous–of human tools.  If it’s dangerous things that need regulating, than let’s start the book burning ASAP.  I’m serious here: the argument that guns (those appropriate for self-defense) need regulating follows the exact same logic as the notion that we should not let people read certain books or be exposed to certain ideas.

And in any case, there are legitimate needs for the kinds of guns that this “Why do you need it?” question gets asked about: to protect oneself and one’s family.  If such weapons as 17-round handguns and 20 or 30-round so-called “assault rifles” are unnecessary for individual self defense, then the obvious question is “Why do we issue them to individual police officers”?  They don’t face threats significantly different than any other citizen does, especially if a citizen is being targeted (most police face these same dangers more often, but that’s beside the point).

What policies to propose?

In light of al the preceding, here’s my list of suggested policy actions:

1. Weapons with legitimate self-defense use should be allowed, including so-called assault rifles.
2. Weapons that have no legitimate self-defense application should continue to be restricted.
3. Weapons in the gray middle area can be decided on a fact- or outcome-basis.  If they prove to be a menace they can be restricted; if they do not, there’s no need to restrict them further nor to ban them.
4. Enforce the myriad of unenforced legitimate laws already on the books.  The NRA pushed the Clinton administration hard to do this; the Clintons resisted hard for years, but were finally forced to give in and fund Operation Exile, with a significant reduction in gun violence as a result.
5. All gun laws (state, local and federal) ought to be reviewed and abolished if they can’t be shown to have their desired outcome, to wit: a depressing effect on violent crime.  (This kind of zero-based review of all laws would be wise, but such a proposal is beyond the scope of this article.)
6. While right-to-carry licenses should probably, for practical reasons if nothing else, remain under the state’s purview, how about a federal LTC if the applicant meets the normal criteria—no felony convictions, etc., and passes the same 40 or 80 hour firearms training program that federal agents have to pass in order for them to carry nationwide?  The FLETC (Federal Law Enforcement Training Center) firearms program—both the classroom and range parts)–could be made available to certified instructors in the private sector who would certify citizens.