Archive for December, 2012

Real Gun Control

December 18, 2012 Leave a comment

The Second Amendment needs to be repealed. Not because we need to take away the rights of Americans to arm themselves, but because sheltering that right under the banner of a Constitutional Amendment creates a cultural and legal paradox that threatens the very society the Second Amendment was designed to preserve.

There is no Constitutional Amendment saying you can drive a car, or drink alcohol, or smoke cigarettes, or take recreational drugs, or participate in X-games, or any other dangerous behavior. And for good reason. Legislatures and law enforcement can regulate and control and intervene in the danger that these activities carry. The government can protect the rest of us from these dangers by taxing and licensing and monitoring these activities, and by enforcing laws against those who abuse them. But with an inalienable Constitutional Amendment, the government can only treat the symptoms and patch up the results of gun abuse, not route out the causes.

In 1994 the Clinton administration directed the Justice Department to put some numbers on how often citizens protect themselves with guns. The study estimated that 1.5 million crimes were defended against with guns every year. A lot of people feel safer with a gun, and there is clearly good reason to feel that way. Removing the Second Amendment will not remove any rights of gun ownership. But it will let us reduce the gun abuses that terrify us, sadden us, and anger us.

The Second Amendment says, “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.” Notice first of all, the wording does not create the right to keep and bear arms, but rather it says the already existing right cannot be infringed. The founding fathers who wrote this language argued about it, and in fact this version that was ratified is slightly different than the one Thomas Jefferson circulated for ratification. If the authors of this sentence had doubts about it, then why do we treat it as immutable?

More to the point, the “shall not” comes with a qualifying explanation. The right to own a gun shall not be taken away because we need guns for a secure society. Unfortunately for us, the authors did not consider that the security of the state could be threatened by gun abuse. Clearly they had in mind a secure society where it wasn’t every man for himself with a gun. But that is the legal legacy we inherited from these words.

In contrast, part of the First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The critical difference here is there is no qualifying reason, just an absolute prohibition. This is why the government can’t tax the income churches make. “No law” means no law. Since the Second Amendment gives a conditioning justification, gun ownership should not be such an untouchable right as is freedom of religion.

We must make mass killing weapons illegal. The massacre in Newton only happened because the shooter’s mother collected mass killing weapons, legally. Yes, he would have killed a few people with a revolver, but not 27. He was armed to kill hundreds. That has to stop. People who want to protect themselves with guns need to see that making mass killing weapons illegal is NOT the first step down a slippery slope that will one day take away their pistol or hunting rifle.

Making mass killing weapons illegal must also include shutting down the channels by which such guns are sold to Americans. Selling them must be considered a high crime. The only reason you can buy a semi-automatic carbine rifle with a 100 round clip at Walmart is the manufacturers of these weapons bought off enough congressmen over the last fifty years to make sure they were available. And available they are. There are now 89 guns for every 100 Americans, which is twice the per capita for cars. That’s right, two guns for every car in America.

We can start by closing the gun show loopholes and improving the enforcement of the gun registration laws we already have. We can stop buckling under the political pressure brought by gun manufacturers and finally define broadly what is an illegal weapon of mass killing. We can make owning a gun just like owning that potential killing machine in your driveway, with licenses, registration fees and required insurance. People will be less likely to take gun ownership for granted and let their weapons fall into the wrong hands if they know the government is keeping track of every legal gun. The taxes can pay for public service gun education. The insurance money will be there to pay recompense to the victims of gun crime.

We cannot make any of these needed changes as long as gun ownership is sanctified by a Constitutional Amendment.

We need to start treating guns like all the other things that pose threats to our civilized life. We cannot let a legal conundrum prevent us from protecting ourselves. Guns are dangerous. People need to grow up with the knowledge of how serious that danger is. The Second Amendment did not give you the right to be careless with a killing machine. Yet that is exactly how far too many people feel about their guns. The Newton shooter’s mother collected mass killing weapons, knew her son was unstable, yet let him have access. Yes, she paid the ultimate price for her stupidity. The problem we face is, her attitude is commonplace. It is that attitude we need to change. If the millions of law-abiding, conscientious, careful gun owners find that they cannot buy mass killing weapons, and if they have to take an extra step or pay an extra fee, then that will serve to reinforce how dangerous guns are.

If everyone feels they need a gun to protect themselves, then that means law enforcement has failed in its mission. If “I need a gun because criminals use guns,” then we need to get serious about punishing the use of guns to commit crime. Our legal system is built on the notion that intent matters. Lawyers call it “mens rea,” and it means criminal intent. It is the one thing a prosecutor needs to show for a crime to stick. The only reason a person would use a gun to commit a crime would be to kill someone if necessary in the committing of that crime. If you weren’t prepared to kill someone, then you wouldn’t have brought a gun along on the robbery or whatever crime you were planning. We need to make it a crime to have a gun with you if you are committing a crime. And the penalties need to be significant, like 20 years in prison, with no bargaining. Just having a gun during a crime must be considered a violent crime.

As it is now, because owning a gun is so completely protected by the Second Amendment, a criminal can rob you at gun point and get caught and be proven guilty, and only serve time for the robbery. Granted, armed robbery is a more serious crime than non-armed robbery. Yet, the criminal meant to kill you if the need arose. That is additional criminal intent, far worse than intending to rob you. It should be punished like attempted murder.

There was a movement back in the 1980s that if you used a gun in a crime, that gun possession guaranteed jail time. It went by the catchy slogan, “Use a gun, go to jail.” It did not do enough to deter the use of guns in other crimes. Now the slogan needs to be, “Use a gun, face life in prison.”

In many states, if you are convicted of a gun crime and serve your time, you are prohibited from possessing a gun again. If you are caught with a gun, that becomes a crime in itself. If such a person is caught committing another crime with a gun, the penalty must be severe, far more severe than the penalty for whatever crime was being committed, to make the point that society takes guns seriously.

How dangerous are guns? Obviously they serve one purpose, to cause destruction at a distance. They make the destruction of life too easy. Out of 12,600 murders in America in 2011, 8,500 were caused by firearms. When a gun is involved in a crime, the likelihood of a fatality is three times as high as if there were no gun. States that have toughened up their gun penalties have seen significant drops in gun-related crimes. So this approach does work. It has to work a lot more.

Don’t get me wrong. Despite everything said about gun violence in America, we are actually not any more crime ridden than other countries. The actual rate of robbery or aggravated assault per capital is about the same for America as for places like Australia and Finland, which have far fewer guns. Fewer guns just means a lot fewer deaths during those crimes.

If you hit someone with your car while sober, depending on the circumstances, you may not face any criminal charges. Hit someone while drunk and you can lose your license and/or go to jail. We need the same enormous step-up whenever a gun is present, not just fired. We need to treat having a gun with criminal intent as the serious crime that it is.

Putting real teeth into gun abuse laws must go hand in hand with repealing the accidental over-protections of the Second Amendment. Citizens need to feel safe. If we are going to make changes in the rules for their gun ownership, then we need to step up and protect them better.

The first and biggest difference must be to make mass killing weapons illegal. Period. Thankfully that conversation is now happening in Washington. We cannot let that conversation end without real change. Any changes that will really help will have to be big. Big changes mean big fights. We can’t let the news cycle move on and let the average American fall back into complacency. It was average Americans who lost their children in Newton. Write your congressman, keep up the blog postings, raise awareness. And know that you are not just railing against an immobile, unsolvable problem. We have tools for controlling dangerous things in our society. We need to convince America at large that these same tools should be used to create real gun control.

Categories: Politics
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