Monthly Archives: June 2016

The Post-Orlando Gun Control Debate

Mossberg-MMR

The mass shooting at the Pulse nightclub in Orlando, Florida has prompted yet more debate on gun control.  The usual suspects on the left are calling for bans on the AR-15 (which was not used in the Pulse shooting) and other semi-automatic weapons wrongly dubbed “assault weapons,” bans of standard capacity 30-round magazines, more background checks (though the Pulse shooter passed them) and all manner of other restrictions.

A couple of fundamental principles often get pushed aside in these discussions, when in fact, they should be the guideposts that define the discussion.

First, it is critical to any discussion involving the regulation of gun rights to recognize that we are talking about a Constitutionally protected civil right, and one which stems from the fundamental human right of self-defense.  The right to keep and bear arms was not bestowed upon us by the government, any more than were the rights to free speech, freedom of association, or the free exercise of religion.  Rather these are inherent human rights that the Constitution (and specifically, the Bill of Rights) prohibit the government from infringing.  Although the right is not unlimited, regulation of it should be subjected to the strictest scrutiny.

Second, freedom is not free.  A free and open society in which people are citizens with individual liberty rather than subjects of the State carries with it a number of risks that we willingly tolerate as a price we pay for freedom.  The right to keep and bear arms is certainly one such risk.  It has resulted in a country that has hundreds of millions of firearms in circulation.  There are so many guns in this country that attempting to purge them from our society—even if it were Constitutionally permissible and desirable from a policy standpoint (which it isn’t)—would be virtually impossible.  Thus, we must recognize that attempts to limit access by law abiding citizens to firearms will have little impact on the bad guys, who will always be able to get them anyway; and this includes magazine fed semi-automatic rifles and carbines like the AR-15.

There are many other examples of the tolerance of risk as a price of freedom.  The fourth, fifth, and eighth amendments all operate to increase the likelihood that bad guys, including violent criminals and deranged Muslim jihadists, will escape detection, prosecution, and conviction for their crimes.  But these are very important rights that we should not be willing to give up based largely upon emotional reactions to highly publicized, but statistically insignificant, events.  “Those who give up essential Liberty to purchase a little temporary Safety,  deserve neither Liberty nor Safety.”

Third, the second amendment is not there merely to ensure that we can hunt or engage in sporting activities.  It is there to ensure the right to self-defense and the preservation of a free state.  That’s right, I said it.  We have the right to bear arms so that we can kill people, if necessary, in the defense of our persons, our family, our country and our liberty.  It is absolutely a check on domestic government power, as well as on foreign powers who must contemplate the difficulty of occupying a country with “a rifle behind every blade of grass.”  These are good things.  An armed populace is incredibly difficult to control without the consent of the governed.

That said, the notion that we should outlaw magazine fed semi-automatic rifles like the AR-15, or standard capacity 30 round magazines for such weapons, is anathema to the purpose of the second amendment.  Such weapons are needed by civilians precisely because they are effective, efficient tools that present a credible option in a firefight.  The bad guys have these weapons, and no new law is going to change this fact.  The government has even better, select fire versions of them.  If, as a civilian, my right to keep and bear arms does not include magazine fed semi-automatic weapons, then the right is largely an empty one, because I will be in no position to effectively defend myself, my family, my country, and my liberty as contemplated by the second amendment.  Even a modern revolver or bolt action rifle is no match against a magazine fed semi-automatic weapon in a firefight, much less a single shot long rifle, which was the military “assault rifle” design of choice when the second amendment was adopted.

It’s worth noting that the second amendment clearly extended to the long rifle and other military weapons in use in the eighteenth century.  From an historical perspective, it is fallacy to suggest that the second amendment does not extend to military firearms, including “assault rifles.”  Although the subsequent bans on importation (1968 Gun Control Act) and manufacture for civilian use (Firearm Owners Protection Act of 1986) of automatic and other types of military firearms has never been Constitutionally tested in the Supreme Court, there is a very good argument that ownership of modern military automatic and select fire assault rifles is protected under the second amendment.

In any event, under the Heller and McDonald decisions, the Supreme Court has declared that the second amendment extends, at a minimum, to firearms in common civilian use.  Civilians have been using magazine fed semi-automatic rifles like the AR-15, along with standard capacity (30 round) and high capacity (100 round) detachable magazines for many decades.  The AR-15 itself is one of the most widespread and popular rifles owned and used by civilians in the United States.  Thus, attempts to ban the AR-15, or modern magazine fed semi-automatic rifles in general, is clearly unconstitutional under existing precedent.  So ought to be attempts to ban standard capacity magazines for these weapons.

Moreover, even if such bans were politically feasible and Constitutional, they would be bad policy.  Rendering hundreds of thousands (if not millions) of legally acquired and owned firearms and/or magazines illegal with the stroke of a pen (as cities like Los Angeles have done, and the State of California is currently considering) is wrong.  Leaving aside whether such a ban would be an impermissible ex post facto law, it would only be effective to take these weapons out of the hands of law abiding citizens.  The bad guys will never have a problem finding a semi-automatic rifle, or a 30 round magazine.  There are just way too many of them out there.

I’d rather eliminate gun free zones and encourage people to carry.  If Pulse hadn’t been a gun free zone, and 10 or 20 people had been carrying pistols, I’m betting the death toll would have been substantially diminished.  These assholes always target gun free zones because they are cowards and they know that they can maximize the carnage if their victims are unarmed.  You don’t see too many mass shootings at gun shows, NRA conventions, shooting ranges, or gun stores.