Thursday, March 6, 2014

Common sense compromise on gun control

Ideally, the only correct answer to the gun control versus gun owners' rights debate is for those involved to read the US Constitution and the Federalist Papers. The Federalist Papers may not carry the legal weight of the US Constitution. However, the authors wrote it for two key purposes. The first was to explain the Constitution to the citizens of the day. The second was to serve as a form of "how to" manual for future generations.

Hamilton, Jay, and Madison were geniuses.

Going back to the US Constitution, there are some key parts aside from the Second Amendment that are important to the whole debate. The first is Article VI. Article VI establishes the Constitution as the supreme law of the land, superior and of higher authority than any other. In regards to adjudicating laws, crimes, due process, and individual rights, all justices from the Supreme Court down to the lowest municipal court must abide by the US Constitution. It take precedence over any local law, automatically. This is something that Wendy Davis seemed to ignore when she stated that cities should have the rights to establish gun control laws as they see fit, regardless of the US Constitution.

The second important portion of the US Constitution that relates to the gun control debate is the 14th Amendment, particularly section 1. "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws."

Taking those two portions in conjunction with the Second Amendment grants the Second Amendment precedence to supersede and preempt any local or state gun control ordinances. In other words, neither states nor municipalities have the authority to implement any gun control regulations or laws. Not even the US Congress can legally legislate any restrictions on ownership or transportation of firearms within the United States without first gaining ratification of a constitutional amendment to repeal the Second Amendment.

By the letter of the US Constitution, there is no basis to ban a private citizen from having a fully loaded M1A1 Abrams tank in his back yard. The idea of necessity has no logical place in the argument. Use of force laws for self-defense and defense of private property already include constitutional proportionality clauses. If a guy breaks into your house armed with a machete, use of the main gun of a tank is overkill. It's also potentially dangerous for your neighbors. However, if you own a 100+ acres cattle ranch just outside of Naco, AZ, there is a legitimate and justifiable necessity. There are well-armed criminal foreign invaders who have no regard for the rights or lives of US citizens. A tank patrolling the ranch may serve as a deterrent as well as a proportionate response to such a threat. In contrast, banning the tank from being driven on public roads makes a lot of sense. Tanks tend to tear up streets causing damage that is costly to repair. In addition, some people are not mentally equipped enough to understand that tailgating a tank is a stupid move. The heat form the exhaust can burn the paint off of a car.

The court of public opinion has a say, sometimes too much of one, in current policies. There are plenty of people acting emotionally instead of reasonably. Due to the public outcry over an illogical and unreasonable fear of firearms, some gun control measures may be upheld by the courts, despite the mandate of the Article VI to the contrary.

So this proposed compromise is just that. It is a compromise. Those of us who understand our rights as protected explicitly by the US Constitution give up a lot in this compromise. Those who want to dictate how responsible, law-abiding citizens should live their lives give up a little.

First, the open carry of all firearms, pistols or rifles, should be automatic for any citizen of voting age who has not had his or her constitutional rights suspended due to commission of a crime against the people. In other words, courts may suspend the Second Amendment rights of violent offenders. It would not be permanent, but a reasonable amount of time after the sentence is served.

Open carry should be restricted in certain areas. First, if a property owner doesn't want firearms on his or her property, that individual's sovereignty on that property preempts the right to bear.

Second, courthouses, city councils, congressional meeting areas, and the like should be free of firearms except for those carried by those militia directly tasked to defend those places and keep the peace. There are several historic incidents where legislators have pulled guns on (or even shot) each other over a political debate. There are incidents of vigilantes shooting suspects on their way to or from a courtroom for their fair trial. The list goes on.

Third, schools from pre-K though high school should not allow open carry. There have been several school shootings over the past couple of decades. The offenders didn't care about the laws. But banning open-carry in these places does allow those assigned to protect the students a means to better identify potential threats.

Fourth, places that serve alcohol. The reason should be more than obvious. Responsible people tend to become much less reasonable when intoxicated. Even if the bearer is not drinking, an openly carried pistol can still cause problems.

Fifth, college campuses and other places of higher education. If the institution is privately owned, this defaults back to the private property preemption. However, state supported post-secondary education institutions do have a point about openly carried firearms being a potential distraction from learning, and other things.

Lastly, medical facilities should not allow open carry, or concealed carry, except by law enforcement personnel. This should be inside the facilities, still allowing carry on the grounds. The reasons behind this may be hard to comprehend. From a military mindset, hospitals and clinics are "protected areas". That wouldn't necessarily stop a criminal, though. Other reasons include the fact these are places of healing. While firearms are seen as defensive tools, seeing them can generate anxiety in patients. Anxious patients don't heal as well. Also, firearms are not exactly septic items and can be rather difficult to sterilize. In fact, sterilization would remove many of the lubricants necessary for the firearm to function properly.

Though none of the above may seem like good reasons for prohibitions in those areas, remember, this is a compromise. 

Concealed carry should be a state level policy for issuance of a permit. Permits should allow concealed carry even in places where open carry isn't allowed. The permits should require some additional level of training to include applicable laws, marksmanship, presentation from a concealed location, etc. The permits come with implied additional responsibilities.

The places where concealed carry should be allowed, but open carry prohibited include the following:

First, all places of higher learning, unless it's private property that invokes a private property preemption. University campuses are notorious for crimes, including violent rapes. Criminals know their prey is most likely unarmed on campuses. So they are a magnet for scumbags.

Second, places that serve alcohol. A concealed carry permit holder should know not to drink while carrying. It can be more deadly and dangerous than drinking and driving. So, carrying but abstaining from alcohol would be a responsible decision, one a responsible adult citizen should be allowed to make on his or her own.

Schools pre-K through high school should allow concealed carry, with a caveat. First, parents with concealed carry permits should be allow to carry onto school premises, as long as they do not enter the buildings with the weapons. No parent or guardian should be denied the ability to defend his or her children while in route to or from school. Inside the schools, every teacher or administrator who attains a permit should go through advanced classes. These classes (and testing), once passed, should allow for a special qualification that allows concealed carry in the schools in order to protect the children and faculty from threats. In high schools, you have gang members who intimidate and threaten teachers. You have crazed people shooting up schools in order to gain infamy and their 15 minutes of fame in the news. Banning guns doesn't stop gunmen. It creates a magnet in the form of a soft target. Allowing those with the special classification to carry is a deterrent. Such a criminal would know the possibility of one to thirty armed teachers and administrators may be in the building at any given time. They don't know who, how many, etc. It creates a hard target of unknowns. Second, a teacher can shoot one of these scumbags before he or she hurts too many kids.

All together, certain other weapons should require special licensing and training. The Second Amendment strongly implies, as bolstered by the Miller v US US Supreme Court decision, that the right to keep and bear arms directly relates to the freedom for citizens to own and carry weapons of military grade. The decision is quoted by many gun control advocates as precedent for gun control laws. But it cuts both ways, since the decision was against a modified shotgun that had no rational military use at the time. These days, though, a sawed-off 12-guage shotgun does have military uses, primarily in breaching doors when fighting in an urban environment. However, common sense can concede that certain military grade weapons need specialized training to handle safely and effectively.

Among those military grade weapons, other than the aforementioned Abrams tank, are fully-automatic, belt-fed, open-bolt weapons. The slang term for this type of weapon is "machine gun". There are legitimate home defense uses and requirements for these firearms. Take the previously discussed cattle ranch owner living on the border as an example. But most citizens do not need an M249 7.62 machine gun to defend their home or family. Most citizens wouldn't be able to effectively handle one. These are not "spray and pray" weapons like movies depict. They require more fire discipline, greater marksmanship ability, and a little more than the average knowledge of ballistics to properly use. Because of their rapid-fire nature, the Minute of Arc (MOA) variations increase during more sustained fire. In layman's terms, you don't have time to properly aim after the first round or two, and being able to compensate takes training and practice. So, your accuracy decreases the longer the burst. Most seasoned machine gunners in the military fire 6-9 round bursts instinctively. This means the more rounds you fire in a single pull of the trigger, the higher the probability that you will shoot something that you do not want to hit instead of something you intend to hit.

Other items, such as hand-grenades, grenade launchers, mortars, anti-armor missiles, etc. should be banned. Even that cattle rancher on the border would have a hard time justifying a Mark-19 grenade launcher. For one thing, using one would cause more damage to his land than the invaders would. If he accidentally hit a cow with a .50cal round from an M2, there may still be some useable meat. A 40mm HE grenade from a Mark-19 would leave nothing edible.

So we can capitulate on those items.

This presents a fair and reasonable compromise for the gun-grabbers and opponents of the Second Amendment. Like they keep trying to tell us with Obamacare, the Second Amendment is the law of the land. However, the ACA is just a legislated act. The Second Amendment is the supreme law, higher in authority than the US President, every member of Congress, and the Supreme Court.