Our Rights as Americans and Gun Control

“Those who cannot remember the past are condemned to repeat it.”

George Santayana

Michael T. Charles, Ph.D., MPA

February 2013

(Guns Save Life) – There are strong opinions and misconceptions regarding gun control in the United States. Arguments for and against such legislation and the recent 23 Presidential Executive Orders President Obama has initiated, in an attempt to control gun violence, have raised debate to a fever pitch on this issue once again. Certainly, the most recent tragic Newtown school shooting and the Aurora, Colorado movie theater shooting have served as the catalyst for a renewed national discussion on this issue. No one on either side of the question wants to ever have such a tragic incident occur. However, the question becomes how best to achieve this end?

The national news media and the various contrarian pundits that are dusted off and brought out to discuss the issue of gun violence and to present their particular view of the problem, often politicizing the discussion in the process. These contrarians are often incorrect, lack the basic knowledge surrounding the issue, or simply are intellectually dishonest in their presentation of the “facts” as they see them, not as the facts actually are. Whatever, your stand on this issue, intellectual honesty, accuracy in the facts, and a realistic view of what and how effective we as a society can be in actually curbing such incidents must be faced. There is only so much we as a society can do. We will not end violence in its totality regardless of what we do let alone through gun control, or by accepting poorly thought out reactive actions, nor by infusing biased contrarian agendas into law. In fact, poorly thought out actions could actually enhance violence against the innocent.

Let us begin with a brief discussion of the Second Amendment to the Constitution, which states, “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.” To begin, historically, this amendment was for the purpose of protecting citizens from a government gone awry. It is to allow the individual to have and bear arms, which could be used against a government that attempted to subjugate American citizens and take away their God given rights. Further, State courts have often construed the second amendment to protect the “natural right to self-defense”; thus upholding the individuals right to bear arms. These are God given rights and not rights granted to American citizens by other men. They are not to be taken away by men, but are ours and ours to keep, and ours to defend. While the colonists concerns regarding tyrannical government intrusion on our liberties might not be of great concern today, America is not without example of forced disarmament of its citizens and the resulting carnage. As pointed out in District of Columbia v. Heller, (2008), “In one town, the “marshal [took] all arms from returned colored soldiers, and [was] very prompt in shooting the blacks whenever an opportunity occur[red].” Such acts of terror were addressed in a variety of legal documents and state constitutions following the Civil War, but such actions rose to the level of the passage of the Fourteenth Amendment to the Constitution, which provided the gateway for all Americans, regardless of color, to enjoy the protection of the Second Amendment as well as other protections provided in the Bill of Rights. Further, the right to bear arms is yet today a highly valued concern for self-defense of oneself, ones family, home, and others. This is reason enough, for many, to insure that the fundamental right to bear arms is not taken away from the individual by the state or the federal governments.

Keep in mind that this is the Second Amendment to the Constitution of the United States, second only to our right to freedom of speech. It is interesting that the founding fathers put such a high value on the citizens’ right to bear arms. This right was not recognized merely to allow citizens to hunt, but, as pointed out above, to give American citizens a means of self defense, and to protect themselves from tyrannical governments.

There has been considerable debate and discussion in America as to the meaning of militia, and whether militia meant an organized state force, such as a National Guard or police agency, or whether the right to bear arms meant that all citizens had that right. While everyone can have an opinion the Supreme Court of the United States in District of Columbia v. Heller, (2008), which was the first Supreme Court case to address the individuals right to keep and bear arms for the purpose of self-defense concluded that:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

The court went on to state:

…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Two years later the Supreme Court in McDonald v. Chicago, (2010), a landmark case for the court held that the Second Amendment right to “keep and bear arms” was applicable to the states through incorporation of the Fourteenth Amendment Due Process Clause. The court concluded thusly:

…but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.

With these two cases the Supreme Court clearly upheld the individuals Second Amendment right to “keep and bear arms” and clarified that States are subject to this right through the Due Process Clause of the Fourteenth Amendment to the Constitution. However, the court also clearly upheld the States’ right to implement appropriate prohibitions on gun ownership, prohibit the caring of firearms in certain sensitive places, and imposing conditions and qualifications on the commercial sale of arms. These rulings protect individual rights, but they also permit States to pass laws regarding firearms, so long as they do not materially violate Second Amendment rights.

Hence, we, the individual, have a Constitutional right to “keep and bear arms”, the State has a right to promulgate such laws as they see necessary to control various aspects of gun crime, but they cannot exceed their powers to violate our Second Amendment rights.

Now let us look at some additional facts, fiction, political rhetoric, and out right dishonesty that surrounds the gun debate. The essential question to keep in mind as we weave through many of these issues is what can we do, and what should we do as a free society to best curb violence? I say this because often times the end goal is lost in the rhetoric. Contrarians in the debate do not listen, but have formed judgments that make them impervious to the truth, they are unable to see the faults in their arguments and positions, they do not know the facts or simply ignore them, and/or they are immovable in their position on the issue. The following fourteen points bring up various issues and concerns that should be considered, understood, and truthfully answered when reviewing the violence debate.

One, the terrible incidents of Columbine, Tucson, Aurora, and Sandy Hook, would likely still have occurred even if the new laws being proposed by the President or some states would have been in effect. The truth of the matter is that we have any number of laws that make such actions illegal. Keep in mind that three of these four incidents above were in “gun free zones”. In fact, the Aurora theater was the only theater in the area that was a “gun free zone”. Let us, however, be more realistic in what is meant by a “gun free zone”. After all, criminals are not stupid. The truth of the matter is that “gun free zone” is in actuality nothing more than purposeful obfuscation on the part of contrarians. Contrarians want to hide, in carefully selected nomenclature, the reality that such zones are in truth a “kill free zone”. The criminal knows that there is little chance that someone in a “kill free zone” will have the ability to confront them and stop their murderous behavior in these environments.

Two, we need not go into any great detail regarding the poor judgment and perhaps even criminal behavior involved in operation fast and furious, of the Bureau of Alcohol, Tobacco, Firearms, and Explosives in selling rifles and semi-automatic weapons to the Mexican cartel. However, it is important that we keep in mind that these are the very government officials that want to direct law abiding citizens on the sale of guns and the use of firearms to protect themselves from the criminal element. The point, you ask? Quite simply you cannot always trust government or government intentions. We as American citizens should always have serious reservations to the intrusion of government into our lives and freedoms. History is replete of examples supporting our healthy distrust of government.

Three, keep in mind that elite government officials have armed body guards to protect them, but they want to deny us, the common citizen, our Second Amendment right to protect ourselves, family, and others from violent crime. Why should a law abiding citizen be forced to give up his/her right to self defense?

Four, are you aware that neither the federal or state governments can control the sale, distribution, or use of narcotics and other illegal goods or services in our maximum security prisons. Do you actually think that new laws will curb determined and disturbed individuals from using firearms to kill?

Five, the new laws being considered by the federal government and some states such as Colorado will do nothing to curb gun violence. There are more than a sufficient number of laws presently on the books that address violence. Government cannot curb all violence with these laws. Merely adding additional laws does nothing to stop violence, or make us safer.

What are they considering in Colorado?

HB-1224; Bans all magazines that hold more than 15 rounds
HB-1226: Would prohibit concealed-carry on college campuses
HB-1228: Imposes a background check fee on all firearm purchases
HB-1229 Would require a universal background check on all purchases of firearms

Six, while such potential laws sound good to some, make it look like law makers are actually doing something, and are “feel good” laws, i.e., laws that make contrarians feel good, but do nothing to make citizens safer; in fact, it makes honest citizens less safe. Further, the new legislation proposed by President Obama is of no true value either. These laws will not reduce violence, or make us safer. They put us at additional risk because they hinder our Second Amendment right to protect ourselves when the police are not there to help, which is most of the time. These laws do nothing to thwart the illegal us of firearms. Criminals will always get the weapons they want and the capacity magazines they prefer. They purchase them illegally, steal, transport them into the U.S. from other countries, or purchase them from the federal government. Much like prohibition and drug laws, remember the War against drugs, they simply do not work. Such laws will, however, create violent subcultures of criminals wanting to commit crimes and sell/purchase guns on the black market. All that occurs is that a violent and dark underground network of criminals develops to sell guns at exaggerated prices. There is no stopping criminals from getting the weapons they desire to commit the crimes they wish. However, American citizens will find themselves unarmed and incapable of protecting themselves from the predators that stalk our streets.

The ludicrous arguments of some Colorado legislators, and other elected officials throughout the country and the federal government, as part of their continuous war against women protecting themselves from vicious attackers, has reached an all time low. Democratic Representative Paul Rosenthal, for example, suggests that women learn Judo, while Colorado Democrat Representative Joe Salazar suggests that women should use call boxes, safe zones (we have already talked about kill zones), and whistles to keep them safe from their attackers. Democrat Senator Jesse Ulibarri suggests women us ball-point pens to protect themselves. We also have The University of Colorado at Colorado Springs Department of Public Safety suggesting that a women do “unusual actions” to protect themselves from violent attackers such as vomiting, urinating, telling her attacker that she has a disease, or that she is in her menstrual period. Such comments are so foolish they would be laughable if the topic were not of such a serious nature. All that can be said is to suggest that the authors of such moronic ideas use them the next time they are attacked and see how well they work. Do not put my loved ones in danger because of your total lack of understanding of violence against women. Also, ask yourself, how many female officers on The University of Colorado Springs Department of Public Safety do you think would urinate on themselves to ward off a violent attacker versus using their hand gun? I think everyone knows the answer to that question.

Seven, the proposed gun laws are referred to by contrarians as “strong gun control laws”, as if they were the answer and would actually make a difference. Such ill thought out laws are neither strong our useful. These “strong gun control laws” simply do not produce the desired results. Two of the best examples are Chicago and New York, These two cities have the “toughest” gun laws in the country and some of the highest rates of gun violence in the United States. What is it going to take for contrarians to quite looking for an easy answer in gun bans and begin to truly address the problem of violence in our society. It is the easy answer that contrarians want to continually bring back to the table regardless of the true effectiveness of these measures. In truth, contrarians simply do not like guns and they want to force their political ideology upon others through legislation. The arguments for gun bans merely draws attention away from the true problems and leaves us no better off, in fact, worse off, than we were at the start of the debate. Again, perhaps contrarians will feel good inside thinking that they “did something” to curb gun violence, but to gain and retain such a feeling requires a blind eye to reality.

Eight, such gun legislation merely puts additional people at risk by restricting their rights to protect themselves, family members, and others. One must consider what the results might have been if someone would have been armed in those latest incidents of violence mentioned above. Take for example the mall shooting in Clackamas County, Oregon where the gunman retreated and then shot himself, because he was confronted by an armed citizen. How many lives were saved here? We will never know, but there is little doubt that innocent lives were saved.

Nine, an armed citizen willing to accept the responsibility to protect him/herself could well be that person who saves your life or the life of one of your loved ones. I invite you to do a search to find the numerous times that someone has saved themselves or someone else because they had a firearm. Perhaps more importantly look for those incidents where individuals are killed and did not have a firearm to protect themselves.

Ten, Christopher S. Koper and his colleagues, of the National Institute of Justice, had this to say regarding the effectiveness of the 1994-2004 assault weapons ban:

“Should it be renewed, the ban’s effects on gun violence are likely to be small at best and perhaps too small for reliable measurement. AWs (assault weapons) were rarely used in gun crimes even before the ban. LCMs (large capacity magazines) are involved in a more substantial share of gun crimes, but it is not clear how often the outcomes of gun attacks depend on the ability of offenders to fire more than ten shots (the current magazine capacity limit) without reloading.”

Eleven, it is difficult for researchers to definitively determine the impact of gun “bans” for assault weapons, or the impact of reducing the ammunition capacity of a gun magazine, or how effective background checks might actually be, or the impact of firearms registration on gun violence, or even how effective mental illness restrictions regarding gun ownership might truly be. The data is subject to not only research error, but to biased interpretation of the data collected. We do, however, know that law abiding citizens are the only ones to truly be impacted by any gun bills that are passed into law. It is only the law abiding citizen that will abide by the laws created. Further, by definition, it is only the criminal that will abuse, thwart, and ignore the law and commit gun or other forms of violence. The question truly becomes, to what extent do these laws further endanger those who want to have firearms to protect themselves, their family, and others? Many want to ignore this important issue. In truth, however, we have the Second Amendment recognizing our right to have arms for protection, or for other reasons, so long as we do not violate the law with these guns.

Twelve, I am again reminded of the famous quote of Martin Niemoller chastising the German intellectuals who followed the Nazi party rise to power. When it comes to our inalienable rights, which the Bill of Rights (the first ten amendments to the Constitution) acknowledge and specifically require the federal government to protect (many of these rights have been extended to the states to protect as well) these God given rights. We as Americans must hold government by the tightest reign to ensure that our rights are not trampled upon. The Second Amendment rights are as important as our First Amendment rights, and we should not give up any of our rights easily, or unnecessarily. Too many have fought and died to ensure that our rights remain.

First they came for the communists,

and I didn’t speak out because I wasn’t a communist.

Then they came for the socialists,

and I didn’t speak out because I wasn’t a socialist.

Then they came for the trade unionists,

and I didn’t speak out because I wasn’t a trade unionist.

Then they came for the Jews,

and I didn’t speak out because I wasn’t a Jew.

Then they came for the Catholics,

and I didn’t speak out because I wasn’t a Catholic.

Then they came for me,

and there was no one left to speak for me.

Thirteen, this is a time where Americans need not attack the Second Amendment in the false belief that what they are proposing is justified to save life. It is not the law abiding citizen that is trampling on the rights of others, but the criminals. We cannot protect ourselves by taking away our Constitutional rights, but only by addressing those social psychological factors that actually play a role in violence. This problem is not a Constitutional issue, but a social psychological issue that needs to be seriously addressed. It is not the gun, hammer, baseball bat, or car that causes violence, but the person controlling those implements. We need to unite and look at the problems and form solutions. We will not eradicate all violence, but through education, mental health services, and teaching our children to love not hate, we can go a long way in curbing the violence we so abhor.

Fourteen, much of what we argue about regarding gun violence is hyperbole, off topic, and not productive. We need to concentrate on what can make a difference and not continually take our eye of the ball, politicize such an important topic, or completely ignore the real issues of violence. We have addressed the issue of violence, gun or otherwise, in this manner before with little or no success. To loosely paraphrase Albert Einstein, must we continually do the same thing over and over again with the expectation that we will find a different result?

As a society we need to truly address the issue of violence and not relegate such an important topic to one cause, guns, and one solution, gun bans that will only be adhered to by the law abiding citizen. Truly, do we as a society not have more intellectual capacity and tenacity to address violence, than what we are demonstrating presently?