This past weekend we had friends visit. Visiting Bloomington, Indiana, at any time is fun, but May and October are special. In May, the redbuds and dogwoods blossom, and in the fall, high color can be breathtaking. In spring, though, it’s the redbuds, and we have a lot of redbuds. They’re native, and grow at the edges of the woods. Which means along the highways. Like, on both sides, for miles.
Anyway, the fellow of the other couple and I had a late-night conversation — an honest conversation — about guns. Now he’s not anti-gun — he owns a few guns, and shooting on my private range was one of the possible activities this past weekend — but he tends liberal, and wanted to probe my position. Some of it was no doubt devil’s advocate, and he said as much, but it was interesting. I will try to reproduce much of it here.
You don’t think we need more gun laws?
No, I think we have way too many already, and they violate the Constitution’s Second Amendment. “The right of the people to keep and bear arms shall not be infringed.”
But that’s in the context of a militia, and the militia is the National Guard.
No, it’s not, for two reasons. One, the same people who wrote the Second Amendment wrote the Militia Act of 1792 three years later. It defined the militia as all able-bodied men between the ages of 18 and 45. So if you say the Second Amendment applies only to the militia, that still means everybody between 18 and 45.
Second, Blackstone’s Commentaries on the Laws of England was written about 25 years before the Constitution. It was so fundamental in its analysis of the law it is still just called Blackstone. He wrote on statutory interpretation. The Second Amendment is, in his terms, composed of a predicate clause and an operational clause. The predicate clause is those “Whereas this and whereas that” clauses that begin many acts passed by Congress. The operational clause is the “Therefore be it enacted” part. Blackstone’s formulation, and it has been followed in statutory interpretation every since, is that the operational clause — “the right of the people to keep and bear arms shall not be infringed” — stands alone, and the predicate clause — “A well-regulated militia being necessary to the security of a free state” — is not used, unless the operational clause is ambiguous, in which case the predicate clause is used to resolve the ambiguity. The operational clause of the Second Amendment is not ambiguous.
It also says the militia has to be well-regulated, so it anticipates some regulations on guns.
No, it doesn’t. “Well regulated” at the time meant, and still does mean, “operating to a standard.” This is why clocks that were accurate enough to use to operate the railroads in the nineteenth century were called “Regulator” clocks. They kept the time to the standard specified for railroad operations. Such clock were always marked as being Regulator clocks. So with the militia. The militia was to be organized and drilled to a standard, set by the Congress under authority of Article 1, Section 8 of the Constitution, but the actual organization and drilling was left to the states. In any case, since it is the predicate clause, and the operational clause of the Second Amendment is not ambiguous, it isn’t relevant.
But I can own guns. How are my rights being infringed?
First, you can only own certain guns.
Well, you don’t want people having Tommy guns.
You asked how your rights under the Second Amendment are being infringed. That’s one way. You can’t own machine guns, at least not without a lot of paperwork and taxes and hoo-ha, and no more can be made for civilian use, which makes them tremendously expensive. You can’t own sawed-off shotguns, or short-barreled rifles, called SBRs.
The second way it’s being infringed is by paperwork. You have to fill out a Form 4473, and the gun store has to call the FBI and ask if it’s OK to sell you a gun.
But that’s not infringing your rights.
The hell it isn’t. A “fringe” is an edge. The Second Amendment basically says your right to keep and bear arms can’t be “edged about.” This is clear in other contexts. If you said your neighbor’s deck was infringing on your yard, you don’t mean he planked over your whole yard, or that his deck wouldn’t be infringing if it only covered half your yard. No, you mean it hangs over the property line anywhere, at all, even a couple inches. Same thing here. Words mean things. Same word, same meaning.
Look at it another way. We have freedom of religion spelled out in the First Amendment. Now if the government said, “Well, that doesn’t mean polytheistic religions, or religions that believe in reincarnation, or the Mormons, because those people are crazy,” people would go absolutely nuts. But that’s the way it is with guns. “Well, that doesn’t mean machine guns, or short-barreled rifles or shotguns.” That’s simply wrong. It’s unconstitutional on its face.
And filling out a Form 4473, and calling the FBI before selling you a gun? OK, so let’s say you need to fill out a Form 4474 before going into a church, and the priest has to call the FBI for permission every time you want to receive communion. Huh? Or same thing with freedom of speech. Well, you know, normal speech like standing on a street corner is OK, but you need to fill out a Form 4475 before getting an Internet connection, and have WordPress call the FBI for approval every time you post to your blog. You know, because those “large magazine” “fully automatic” web blogs are dangerous. They could be used to overthrow the government.
You don’t think the government should have records of who buys a gun?
The government should never have any records about who buys a gun, ever. Right now, for the most part, they don’t. The stores keep the 4473s, and the government doesn’t get them and isn’t supposed to keep records on the NICS calls. But I don’t trust them. So no, the government shouldn’t have any records of gun sales.
But what if someone who isn’t in NICS as a prohibited person goes to a gun store and gets a trunkful of guns, and then goes into the city, like Chicago, say, and sells them to gang members, and one of those guns kills a child? How are they supposed to track the gun’s provenance?
I don’t care.
You don’t care if someone kills a child?
No, I don’t care what hypothetical you offer, I don’t want the government keeping records of who has guns. In the twentieth century, 15 million people worldwide were killed by criminals, and 50 million people died in wars, but 100 million people were killed by their own governments, always after they were disarmed. That is what I worry about most. That is clearly the biggest danger to me, to you, to children, to everybody. That the government knows who has guns, and goes and rounds up the guns. Once disarmed, we are, like the 100 million people killed by their own governments in the twentieth century, at the mercy of government.
Do you know how many gun murders there are in the United States per year?
I don’t know. A hundred thousand, hundred and fifty thousand, maybe.
Nope. There are about 33,500 gun deaths per year in the United States. About two-thirds of those are suicides, half of them by men over 45. There are about 500 accidental shootings, usually someone shooting himself while cleaning a gun that hasn’t been properly unloaded. Most of those are probably suicides, too, as, if you commit suicide, your wife doesn’t get the life insurance payment, but, if you ‘accidentally’ shoot yourself in the head cleaning your gun, she does.
What you get down to is about 11,000 gun homicides per year. At that rate, it would take nine thousand years to equal the 100 million people killed by their own governments in the twentieth century. Guns aren’t anywhere near as dangerous as governments.
That was mostly by communist governments, by the way. If you want to make something that’s very dangerous illegal, you should probably start with communism.
So you would have everybody walking around with a gun all the time.
If they want to. We would be safer, not less safe. If a criminal knew that, if he pulled a gun out and started shooting, five or ten or twenty people would shoot back, he wouldn’t do it. These people are cowards. When confronted with an armed response, these shooters almost always surrender or shoot themselves.
What about the Las Vegas shooting? He was too far away to hit with a handgun.
I’m not so sure. That was a country western concert. Had it not been a gun-free zone, there probably would have been two hundred or more people there carrying. You’re telling me that if two hundred people started shooting back, that somebody wouldn’t have hit him, or that he wouldn’t have stopped shooting and sought cover with bullets flying all around him?
Sounds like the Wild West, or the Roaring 20s.
The biggest, most sensational shooting in the Wild West was the Gunfight at the OK Corral. Very famous, everybody’s heard about it. Three men dead. It was written up in the San Francisco paper, 800 miles away. That’s not even a hot weekend night in the Englewood district of Chicago.
As for the Roaring 20s, the biggest gangland shooting from the period was the St. Valentine’s Day massacre in 1929. Again, very famous, everybody’s heard about it. Seven dead. It was in newspapers coast to coast. Again, when that happens in Chicago now, it barely makes the Chicago papers.
The Wild West and the Roaring 20s sound pretty good in that context.
But we have to do something.
No, we don’t. Or at least, not what you think. More people get killed by drunk drivers. Thirty times as many people get killed by medical mistakes. Go after those.
If you really want to bring shooting deaths down, give law-abiding people their Second Amendment rights back. The criminals don’t obey gun laws anyway. Get the gun laws out of the way of allowing law-abiding people to defend themselves. 98% of mass shootings since 1950 occurred in so-called gun-free zones. They’re not really gun-free zones, because the criminals carry guns into them whenever they want. What they really are is unarmed-citizen zones. No wonder they attract nut cases.
To bring gun deaths down, you need to repeal the gun laws that have driven gun deaths up.
Besides which, it’s my Constitutional right. Says so, right there: “shall not be infringed.”
Well, the Constitution isn’t hard and fast.
Oh, yes, it is. It’s a contract, among the sovereign states, from which the federal government derives all its power. Now if you want to change it, that’s fine. There’s a way to do that. Propose an amendment that would change the Second Amendment, then get that passed according to the rules. That would allow public discussion on all these issues.
And if it doesn’t pass, then the Second Amendment stands, as written.
And that means all these unconstitutional gun laws have got to go.