The unchanged principle of gun control

January 7, 11:03 AMTampa Politics ExaminerJim Stillman

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I have learned over time that one way to generate interest in an opinion piece is to adopt a position favoring the right of a woman to have an abortion for reasons that she finds satisfactory.  Another sure way to ensure a cadre of readers respond is to suggest that, perhaps, just perhaps, that the possession of guns by the general population, while a necessary and vital component to the wardrobe in sparsely settled western 19th century United States or at the time of the framing of the Constitution, is not appropriate in a major urban setting or in suburban neighborhoods. [My note suggesting a dialogue on compulsory public service brought many helpful comments as my being “moronic” and a “liberal idiot, but a communist stooge as well”. Thus, as far as my charater is concerned, that topic hasd aldready been covered.]

This is not to be a rant about the evils of gun ownership, the need for reasonable gun control or that the risk of a plethora of weapons far outweighs any possible benefit.  As I will explain, in my opinion and the views of all but the most fervent members of the N.R.A. and spokespersons from the extreme Right, those issues have been considered settled by the majority of the American public. The majority of people favor the possession of handguns with some restrictions.

The recent Supreme Court decision in District of Columbia v Heller did nothing significant to erase that understanding.

The strongest opponents of any control of gun ownership have, again in my opinion, misunderstood the import of Heller. It is not the total victory dreamed of over those who would take away their weapons

Let me acknowledge, I come to the table with prejudices and core beliefs.  I appreciate, if not totally understand, the idea of men hunting animals and calling it “sport”. I understand that some may wish to acquire food for themselves and their families by hunting or fishing, rather than visiting a neighboring supermarket; however I do not understand and fear one who enjoys the act of killing for its own sake...and acknowledge a degree of hypocrisy in my beliefs. I thoroughly enjoy a rare steak and a juicy hamburger without thinking too hard about its provenance.

Allow me to digress and explain.  In the course of my employment with the Florida Department of Revenue, I met a gentleman who was employed on the “killing floor” of an abattoir in the Carolinas.  This was his job, performing a societal useful service and employment.  He did not take glee from the act of slaughter; it was simply his job.

There are several good reasons for a person to “keep and bear arms”: as a part of a ready reserve armed militia to keep the Federales in their place (the original intent and purpose of the Second Amendment), to act as a trained military to repel foreign invaders, for immediate self defense and as a way to hunt for food or even to pursue target shooting.

Concealed weapons, rapid fire assault weapons and machine guns have as their sole function in the 21st Century to kill people.  I do not suggest that all guns be confiscated and turned into artificial life sustaining ocean reefs.  While that might have been a good idea at one time, that time has long vanished.

The Second Amendment has been quoted to the extent that the average child familiar with the Miranda warning recited before police interrogation from television drama knows the words:

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.

The expression is an ancient one, rooted in English common law.  The historical material is fascinating but not very relevant at this time.  Essentially, there had been two or three conflicting legal opinions as to the meaning and effect of the first clause.

The first one or two theories (depending who is counting) focus on the "purpose" clause, of the Amendment — the words, "A well regulated Militia, being necessary to the security of a free State." The first model, the collective model, holds that the right to bear arms belongs to the people collectively rather than to individuals, because the right's only purpose is to enable states to maintain a militia. The second model, the modified collective model, is similar to the first. It holds that the right to keep and bear arms exists only for individuals actively serving in the militia, and then only pursuant to such regulations as may be prescribed.

The third model, the Individual Rights Model, holds that a right of individuals to own and possess firearms, much as the First Amendment protects a right of individuals to engage in free speech. This view was adopted by the Supreme Court in District of Columbia v. Heller (2008). Prior to the Supreme Court's ruling in Heller there was a split among the federal courts, with nine of the federal circuit courts of appeal supporting a modified collective rights view, two of the federal circuits supporting an individual rights view, and one federal circuit court having not addressed the question.

The Court’s majority opinion, written by Justice Scalia, and joined by four other Justices, is extremely comprehensive and forcefully argues the rejection of the absolute prohibition of handguns in the District of Columbia.  I, personally, find the two dissents by Justices Breyer, Stevens, Souter and Ginsburg more persuasive but the point-counterpoint presentation of analysis of historical precedent is fascinating.  I would urge any seriously interested gun control, proponent or opponent, to read and savor the ideas and arguments in all of the opinions.

But the bottom line is that the Heller decision has not had any dramatic change in the principles of current gun regulation in this country.  There is, at the end of the majority opinion, a passage that is overlooked by many:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. … Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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.

We also recognize …that the sorts of weapons protected were those "in common use at the time."

Since Heller, as pointed out by Adam Winkler, of the UCLA Law School, there have been a number of lower Federal court decisions on the constitutionality of a wide variety of gun control laws. There have been suits against laws banning possession of firearms by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. The courts have ruled on the constitutionality of laws prohibiting particular types of weapons, including sawed-off shotguns and machine guns, and specific weapons attachments. Defendants have challenged laws barring guns in school zones and post offices, and laws outlawing "straw" purchases, the carrying of concealed weapons, possession of an unregistered firearm, and particular types of ammunition. The courts have upheld every one of these laws.

So far, Heller has made no change in the practical application of the law.  This is good news to those who favor reasonable restrictions on gun ownership and a disappointment to those who hoped that the Courts would take an absolutist view.