History Lesson

In the wake of the most recent spate of killings in a high school in Florida we hear once again the tired mantra “guns don’t kill people, people kill  people.” The whole thing is brushed aside as a case of poor mental health. And while there is some truth in this, since anyone who walks into a school and starts shooting innocent teachers and students has to be clinically insane, it remains a fact that guns DO kill people and automatic weapons kill a great number of people in a very short time. Let us now hush the mantra and the mindless dismissal of real causes to consider the fact that there is hard evidence that tougher gun laws do, in fact, reduce the number of gun deaths. This has been shown in the case of both Japan and Australia.

Those who insist that the possession of an automatic weapon is a question of a Constitutional right guaranteed by the Second Amendment need to read that amendment closely and consider the fact it was designed to protect the right of the militia to bear arms and that for two hundred years after the adoption of the Constitution federal judges uniformly understood that the right protected by the Second Amendment was limited in these two ways:

“.  . .first, it applied only to the keeping and bearing arms for military purposes, and second while it limited the power of the federal government, it did not impose any limit whatsoever on the power of the states or local governments to regulate the ownership of firearms.”

These are the words of retired Supreme Court judge John Paul Stevens who has written a book about the six amendments we need to incorporate into our Constitution. He goes on to point out that it wasn’t until very recently, 2008 in fact, that the tough gun laws that had been passed in this country to deter, for example, the sale of sawed-off shotguns and tommy guns to ordinary citizens were weakened somewhat when the Supreme Court, by a vote of five to four, decided in District of Columbia v.Heller that the second amendment protects a civilian’s right to keep a handgun in his home (not a tommy gun or an automatic weapon) for the purpose of self-protection. Then, as recently as 2010, by another vote of five to four, the Court decided in McDonald v. Chicago that the Due Process clause of the Fourteenth Amendment limited the power of the city of Chicago to outlaw the possession of handguns by private citizens. Stevens was involved in the discussion of both of these cases and he dissented in each case. He notes that

“. . .nothing in either the Heller or the McDonald opinion poses any obstacles to the adoption of preventive measures. . . . the Court had made it clear that even though machine guns were useful in warfare in 1939, they were not among the types of weapons protected by the Second Amendment because that protected class was limited to weapons in common use for lawful purposes like self-defense.”

In a word, Stevens reminds us that the Second Amendment was never designed to protect the presumed rights every Tom, Dick, and Sally to own and use weapons designed for warfare.  Stevens is convinced that the insertion of a brief clause in the wording of the Second Amendment might help clear this up. It would then read:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

That brief clause would make it crystal clear that the Amendment was designed to protect the right of those chosen to defend their country — in our case the National Guard — and not everyone else who now incorrectly makes the demand to own and use automatic weapons. The likelihood that this amendment would pass this Congress is very near to zero — given their obligation to the NRA and the gun manufacturers who got them elected and threaten them with the withdrawal of funding in their next political campaign, coupled with immense support for their opponent. Nonetheless, as Stevens points out, the states could pass tougher laws with no restrictions whatever from either the Constitution itself or possible legal precedents. Moreover, even at the federal level:

“. . . the Congress’ failure to enact laws that would expand the use of background checks and limit the availability of automatic weapons cannot be justified by reference to the Second Amendment or to anything the Supreme Court has said about that amendment.”

It is assuredly the case that the availability of guns does not, in itself, remain the main cause of the insane spate off shootings in this country. Guns alone are not the sufficient condition, as logicians say, of the gun deaths. But they remain the necessary condition in that if there were no guns there could be no gun deaths. And while the right to bear arms for self-defense and the shooting of game might be seen as protected by the Second Amendment of our Constitution, the possession of automatic weapons clearly is not.

It is time, indeed, past time, that we stop all the mindless drivel and pass laws that will take the guns out of the hands of those who are, admittedly, not fully aware of what it is they are doing, by making it impossible for them to purchase automatic weapons at the very least.


16 thoughts on “History Lesson

  1. Dear Hugh,

    The 2nd amendment did not prevent the 1994 Ban on Assault Weapons from being passed. The problem was that it expired in 2004 where the TX Rep. Tom Delay made it his life’s mission to make sure that it was not extended.

    There is in nothing in the 2nd amendment that does not allow for background checks across the board, no exceptions.

    Like you, I’m sick of the talking points that guns don’t kill. After all a man can kill with his bare hands. But a man with a gun can kill more efficiently and a man with an assault weapon can kill lots of peoples more efficiently.

    There is no way a 19 year old should have access to am AR 15 weapon.


      • Dear Hugh,

        The 1994 Ban on Assault Weapons that expired, went to its grave under the Busch administration.

        What needs to be fixed also is the 2005 that immunized gun owners and dealers from law suits when their guns were used in commission of a crime.

        As per Wkipedia, ” (2005) The Protection of Lawful Commerce in Arms Act (PLCAA)is a United States law which protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products. However, both manufacturers and dealers can still be held liable for damages resulting from defective products, breach of contract, criminal misconduct, and other actions for which they are directly responsible in much the same manner that any U.S. based manufacturer of consumer products is held responsible. They may also be held liable for negligent entrustment when they have reason to know a gun is intended for use in a crime.”

        “The PLCAA is codified at 15 U.S.C. §§ 7901-7903.”

        This was signed by President Bush. But it took 59 democratic renegades to help republicans pass this bill, which included Senators Bernie Sanders and Bill Nelson.

        Hugs, Gronda

  2. Hugh, I have grown weary of the arguments of “slippery slope” and “this change would not have stopped that shooting.” Doing nothing did not either. To say this problem simply, “guns do not kill people, people with access to guns kill people.” Yes, it is more than a gun issue – it is lack of civil discourse, it is mental health, it is hatred, it is entertainment violence, it is drug crime, it is sloppiness in storage, etc. But, it is also a gun issue.

    A significant majority of Americans (and majority of Republicans) want background checks and elongated waiting periods on all transactions. This should be a no brainer. And, the next Republican who tells you this a mental health issue, ask them why they added back to eligible buyers those who are on mental disability under Social Security just last year? Why are they wanting to not stabilize the ACA and push more off coverage along with its mental health benefits?

    A teacher who is claimed as a hero last week said he is a gun owner, but sees no reason why a citizen has a AR15. Fortunately, our kids are making a major statement. I hope the politicians who have shown no inclination to change, find that backbone and do their job.


  3. The best, calm and logical reasoning I have heard yet, Hugh! Like Keith, I am sick and tired of the mindless drivel produced by those who would give up their children before they would give up their guns. What happened last week in Parkland, what happened last year in Vegas, and what happened in 2012 at Sandy Hook should have all been wake up calls, but instead, some majority of this nation is willing to let those incidents go on over and over. For make no mistake, it WILL happen again, probably before mid-year.

    I shall repost … despite there is no longer a re-blog button! Thank you …

  4. Pingback: History Lesson – by Hugh Curtler | Filosofa's Word

  5. Changing the Constitution on guns is unlikely and probably would take several years, given the state-ratification process as well the requirement that Congress pass it. The emphasis on shutting down assault-style guns should go through the legislative process, in addition to extreme pressure placed on the NRA and gun makers. The NRA is a lobbying group, with financial support dependent on money from gun makers and members, which can in theory be swayed by public opinion. There are about 5 million NRA members. There surely are more than 5 million people irate over the mass murders in which rapid-fire, large-magazine guns were used.

    We can organize a lobbying force with more members than the NRA.We can boycott businesses of any type owned by NRA members, boycott retailers like Wal-Mart that sell guns, continually paint the NRA and gun makers as supporting murder (since the assault-weapon ban expired in 2004, under heavy NRA pressure, deaths in mass shootings have skyrocketed). We can put sustained national pressure on lawmakers but also specific pressure on the local offices of members of Congress. One way to build a large-scale lobbying force is the initiative begun by students at the Florida high school, which is quickly shaping into a well-organized effort that’s receiving national public attention. These methods and others like them had major effect on the tobacco industry and auto industry and they can begin immediately — if we have the will to start them and sustain support for them, which we can do by channeling the anger and frustration we feel after a mass-murder incident and sustain them.

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