In this diary, I will make the case that extensive regulation of firearms is just as appropriate as extensive regulation of the automobile. The right of citizens to travel freely about the country, while not specifically enumerated in the Bill of Rights, is a right that is clearly implied by the ninth amendment. Custom and practice have made it one of our fundamental rights. I trust there are no Kossacks that consider the right to keep and bear arms as superior to the right to travel freely merely because it is the subject of its own amendment.
So join me beneath the fold. Come, let us reason together.
None of the various rights enumerated and implied in the Bill of Rights are absolute. Even the right to practice your religion as you see fit is subject to constraints. For example, no matter how sincerely you might believe that praying is the only appropriate medical treatment for your children, you can be prosecuted for allowing a child to die if you withhold simple medical treatment and your child dies as a result.
All of our civil rights are constrained when the exercise of those rights can cause harm to others, and rightly so. In the case of our freedom to travel, we must still obey traffic signals and speed limits. We must register our vehicles, and equip them with license plates. We must be able to demonstrate—on demand—our financial ability to compensate people we might injure if we have an accident. We must demonstrate to an examiner that we have the necessary expertise to drive our vehicle safely, and we are forbidden to drive if we don't have a driver's license. We have stiff criminal penalties for drunk driving.
What gives government the right to impose such restrictions on our right to travel as we see fit? It is because automobiles are inherently dangerous and are involved in numerous deaths each year. If automobiles never caused injury or death, these restrictions would arguably be an infringement on our liberty to travel as we please. Indeed, walking is scarcely regulated at all, because it rarely harms or endangers others. Of course, you can get a ticket for jaywalking, and you probably won't be allowed to go hiking in Area 51, but by and large, walking is pretty much unregulated.
The same should be true of gun legislation; guns should be subject to considerable regulation, because thousands of citizens die each year as a result of gunshot wounds. True, DC V Heller ruled that the right to keep and bear arms was an individual right irrespective of the "well regulated Militia" phrase. At the same time, however, the court affirmed that 2A rights were not absolute (as in "any person, any gun, any time") and that firearms were subject to reasonable regulation. After all, the courts have left standing a wide array of legislation that limits or regulates the right to bear arms. This diary is an attempt to find common ground with the RKBA (Right to Keep and Bear Arms) group and others who advocate for gun rights.
With that as background, I would favor laws that are modeled after the following outline. These 10 points have obvious analogies in the vast body of law that relates to automobile transportation. I invite our RKBA brethren to comment on these individually. For starters, I would request that we not get bogged down in technicalities. For example, I refer to any firearm as a "gun", even though that word might be technically incorrect in a military context. Note also that ammunition is an integral part of the gun, and may be regulated as such.
1 - Every gun sale or transfer of ownership shall be registered by federal authorities in the state in which it takes place, whether the sale is public or private. Federal authorities shall keep appropriate records of every transfer of ownership of any gun. (Importing a gun would be defined as a "transfer".)The above points are intended to assist law enforcement in the investigation of crimes and to establish the responsibility of the owners to own and use their guns safely. If it turns out that a gun was used in the commission of a crime, it is a great help to know who owns that gun.
2 - Individual gun owners are required to report to federal authorities the sale, transfer, loss, theft, or destruction of any gun.
You might argue that the existence of such a list would make it easier to confiscate certain guns—let's say semi-automatic rifles. But we have electoral politics, and we have courts, and we have the NRA, and we have the second amendment itself. These things stand as formidable obstacles to arbitrary government actions. Gun owners are not exactly a bunch of political pushovers, as Colorado has proven. I think it is possible to put safeguards in registration laws against misuse of registration requirements. If our RKBA friends know of instances where gun registration lists were used for nefarious purposes (perhaps in some other country), let's talk about it, and let's talk about ways to prevent this from happening in this country.
The reason for federal registration, as opposed to state, should be obvious. There are some states that would simply refuse to cooperate. Gun registration, to be effective, must be uniform. I would word the law in such a way as to make it clear that the federal government is not in the business of licensing gun ownership. The registration function should be totally divorced from policy issues.
Concealed or open carry laws
3 - Any organization, to include businesses, governmental entities such as cities, counties, and so forth, may prohibit the carrying of loaded guns in their jurisdiction or establishment.We already do this extensively. Even though you may be a well-trained, responsible, law-abiding citizen, you are not allowed to carry a loaded gun on an airplane, or while touring the Capitol building. SCOTUS called these "sensitive areas". Why shouldn't a shopping mall or a rock concert, or a sports stadium be able to declare itself a "sensitive area"?
Still, I can see this as a problem for law abiding citizens who have a permit to carry a loaded weapon. If everybody and his brother can forbid loaded guns on their turf, what use is a permit to carry, whether concealed or open? Still, I would have a hard time telling a business that they must allow loaded guns in their store. Is there a middle ground? How would businesses enforce such prohibitions? Is this topic a concern for RKBA members?
Civil Liability issues
4 - Owners of guns are held liable in civil cases for any injuries or damage caused by their own negligence.These four have obvious analogies to current automobile laws. I would expect these to be non-controversial, but you never know. Point 4 seems a bit redundant, since we are always civilly liable for harm due to our negligence. But I think certain definitions should be made with respect to guns. For example, gun owners ought to be held strictly accountable for knowing whether their gun is loaded and whether there is a round in the firing chamber. Gun owners ought to be held accountable for keeping their guns secure from unauthorized use. When these things are explicitly made part of the law, they become part of the jury instructions.
5 - Gun owners must demonstrate, usually by purchasing an insurance policy, their ability to meet any civil liability resulting from a discharge of their guns, whether intentional, accidental, or inadvertent.
6 - Gun manufacturers may be held liable for injuries or damage caused by defects in material, workmanship or design of their products. Manufacturers may also be required by statute to incorporate certain safety features in their products.
7 - Individuals may be disqualified from gun ownership for mental instability or previous conviction of a serious crime.
Point 6 would not be popular with gun manufacturers, but as long as their responsibility is limited to the intended function of the gun, there is no reason to absolve them of their responsibility for basic safety. As an example, if a gun is prone to discharge when dropped on a hard surface, then the manufacturer should be held strictly liable for the consequences.
Alcohol and guns
8 - It shall be a felony to carry a loaded gun while under the influence of any mind altering substance.
I would also expect the above to be non-controversial, but it is very far from being universal. Point 8 is directed primarily at alcohol use. My own opinion is that the threshold blood alcohol level should be set at least as low as it is for driving a car. (Perhaps I am overly influenced by the shooting of "Spider" in the movie Goodfellas.) Whether my opinion is well founded or not, prudence should dictate that we should be concerned about mixing alcohol use with loaded guns. There is a real concern about the threshold for regulation, but to my knowledge no consensus. Does RKBA have a stance on this?
I hasten to add that I think this is an issue for the various states rather than for the federal government. All states have now agreed on 0.08% as the threshold for DUI, and the NTSB is now recommending 0.05%. Standardization is good in this area. I would think all states would benefit from a uniform threshold, both for driving and for carrying guns. I would like to see a 0.05% threshold for both.
9 - Every gun owner, before acquiring a gun, shall be required to demonstrate a thorough understanding of basic gun safety practices by passing a written test.Of course, any written test would, by statute, be objectively written and administered impartially. I suspect that any rational person could pass such a test with minimal study. This is, in my opinion, pretty much true for driver's license written tests. Its chief value would be to force the prospective gun owner to think about gun safety, if only for a brief period. If it implanted in him or her the notion that gun safety is important, then a written test would be worthwhile. I don't regard this as a "deal breaker", but bringing gun safety to the forefront cannot be all bad.
10 - Federal law may, in the interest of public safety, restrict the firepower of guns. For example, it may restrict the number of rounds that can be fired per minute, or the lethal potential of the projectile.I think that the distinction between semi-automatic and fully automatic weapons is mostly obsolete, and that some other measure of firepower ought to be adopted. If you assert that 2A guarantees you the absolute right to personal firepower limited only by your ability to carry the ammo, then we have a serious disagreement.
I believe that reasonable people can reach agreements on firepower limitations. As a starter, we ought to seek agreement on the aims of 2A. I would hope that we we agree that self defense, target shooting and hunting are the principal areas that ought to be protected. Beyond those three, are there other legitimate uses that the RKBA group is concerned about? Are there legitimate reasons to allow the gun owner to be able to fire, say, 30 rounds in the space of a few seconds? To put it another way, in what manner does restricting firepower infringe on any legitimate use of a gun? I have in mind survivalist and related groups and perhaps groups that see guns as means of resisting a tyrannical government. Should such groups be brought under the tent of "legitimate use", or are they fringe groups that pose a hazard to public safety? The reader can easily guess what my opinion is, but I am willing to listen and discuss.
In the light of the 12/14 massacre in Newtown, CT, this is not a frivolous question. There is a large contingent of Americans that think Adam Lanza should not have had such firepower available to him. It is reasonable to debate where to draw the line, but I think it's unreasonable to say that no line should be drawn.
I am putting a serious question to RKBA members. I recognize that Alaska and Montana and Wyoming have different aims and problems than New York, California, and Illinois. How can this country cater to these diverse interests? Would it be unreasonable to forbid the transportation of a gun that is legal in South Dakota to Pennsylvania? A gun that might be reasonable in Idaho might be totally unacceptable (from the standpoint of public safety) in Rhode Island. I am not trying to start an argument here. I am trying to find common ground.
Fellow Kossacks, and especially those who happen to be members of the RKBA group, are invited to comment. I will attempt as best I can to answer your objections to these 10 points that I have brought up. I would very much appreciate it if you would restrict your criticism to what I have written in this diary. I am aware that there are gun owners who oppose any and all legislation regarding firearms. However, I hope to discover that there are many RKBA members who acknowledge the need for legislation aimed at making gun ownership safer for the general public. One need only to read a few editions of David Waldman's "Gun Fail" series to appreciate the need for legislation.
I have one final point. It is frequently asserted that only law-abiding citizens are restrained by gun laws, and that criminals will ignore these laws. So what? We still have speed limits, in spite of the fact that some people ignore them. If we enforce these laws effectively, some criminals will end up behind bars and law abiding citizen will be safer. Is that not what we want?
The Daily Kos Firearms Law and Policy group was founded last month by LilithGardener, OregonOak, Glen the Plumber, and Joy of Fishes. Some of us have been versed in firearms law for many years while others have never owned or handled a gun. We published a Glossary of Resources to make it easier for everyone to find answers to their questions and support their opinions with primary sources of firearms law and policy research. If you find gun jargon confusing you are not alone. This Glossary of Gun Terminology from Handgun Law may help you find the right words.