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Does America Have the Safety On?

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Were I to make a list of things to happen on a Friday morning in December, the tragedy that unfolded in a school in Newtown CT wouldn’t have even made the list. On Friday the 14th, 20 year old Adam Lanza forcibly entered Sandy Hook Elementary School armed with two semi-automatic pistols, a shotgun, and a semi-automatic rifle, firing on and killing 20 students and 6 staff. In the aftermath of the fourth major shooting in less than five years the question on everyone’s mind is if Uncle Sam is doing enough to prevent the next Sandy Hook, Aurora, or Virginia Tech? With the president annoucing a push for legislation for greater regulation, it seems that the federal government intends to do more, but is there more that Congress can really do? After all, the highest court has twice ruled that people have a right to keep and bear arms for “traditionally lawful purposes” that neither state nor federal governments can infringe upon. Which laws to change and how to change them are challenging questions with, as you’ll soon find, very complex answers. 

What Uncle Sam Can Do, and What He Can’t

At the head of any debate on gun control rests the Second Amendment which reads, “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 infringed“. In District of Columbia v. Heller (2008) and Mcdonald v. Chicago (2010) the U.S. Supreme Court provided the current interpretations of this law of which there are four important parts:

  1. An individual does have the right to own firearms unconnected with service in a militia for “traditionally lawful purposes” 
  2. Because the Amendment was intended to limit the powers of the federal government, the same restriction applies to the state governments. 
  3. The amendment does have limitations, since it does not grant the right to own any type of weapon for any purpose. 
  4. The amendment’s protections do not wholly prevent: regulating the interstate, commercial sale of firearms, creating standards qualifying a person to purchase, sell, or own a firearm, or prohibiting firearms in places like schools or government buildings. 

Next on the stack is the federal government, who regulates firearms primarily through the Bureau of Alcohol, Tobacco, Fireams and Explosives (BATFE) who issues Federal Firearms Licenses, conducts compliance inspections, and prosecutes individuals who illegally sell or obtain firearms. BATFE also maintains tracking systems and databases for firearms and ammunition allowing law-enforcement agencies to retrace of the steps of a weapon or round involved in a crime. Gun control law at the federal level is set by three statues:

  1. The National Firearms Act of 1968 set the categories of firearm that the government could regulate. 
  2. The Gun Control Act of 1968 established qualifications for persons looking to purchase, own, or sell firearms. It also added the “sporting purposes” test to imported firearms so that the weapons sold were ensured suitable only for hunting or competition shooting
  3. The Firearm Owners Protection Act of 1986 banned civilian ownership of fully automatic weapons that were unregistered as of May 19th 1986, placed a general ban on machine guns, and clarified the list of “prohibited persons” from the Gun Control Act. However it allowed for sale of “long guns” across state lines, mail ordering ammunition via USPS, and repealed bookkeeping requirements for non-armor piercing ammunition. 

The various state and local governments are usually the actual issuers of weapons permits or licenses to individuals looking to buy, own, and carry a firearm in public. Concealed Carry permits (CCW’s) are the most common type of state issued license and the qualifications for obtaining one vary by state and even futher by county. Generally the different awarding policies fall into one of four categories: unrestricted, shall-issue, may-issue, and no issue. 

  • In unrestricted jurisdictions, a person doesn’t have to have a permit to carry a concealed weapon. Alaska, Arizona, Vermont, and Wyonming are currently the only states that allow this statewide but bills allowing residents this level of access have been presented in Montana, Utah, South Carolina, and New Hampshire. 
  • Shall-Issue states require a person have a CCW permit, but the state or local authority doesn’t have a choice in granting a permit should a person meet the necessary qualifications. 39 states are shall-Issue states or have jurisdictions with this type of permit policy, 
  • May-Issue states require a CCW permit, but the state or local authority has partial input as to whether or not the applicant should be granted a permit. Permit seekers usually need to show they have a good reason for wanting to carry a concealed weapon and often self-defense alone is not enough to warrant awarding a CCW. 10 states are predominantly may-Issue. 
  • Of the 50 states only Illinois forbids (for most reasons) both open and concealed weapons. D.C. is also a no-Issue jurisdiction, though a number of recent legal challenges may change both of these. 

Where The Holes Are

The Supreme Court’s interpretation of the Second Amendment clearly intended to allow citizens a method of defending themselves or their families on their own property and giving legal license to use firearms for non-military uses. The language of the amendment does include the words, “A well regulated militia” related to, “the security of a free State”, but militias at the time were, usually, composed of men familiar with firearms they previously owned and used outside of military service. However, the Court asserts in District that the Second Amendment is connected with a natural right to self-defense, even from one’s own government and is a shaky argument. At the time, militias were called by the state to perform services for the state, and those without weapons were often provided with firearms in by the state or local authority.

Additionally, the Court’s defense of regulation on handguns doesn’t to take into account the ability of a person to purchase parts, separate from the weapon itself, that allow it to be converted into an assault weapon. Again in District the Court grants that the Second Amendment doesn’t give the person the right to keep and bear any type of firearm for any reason, only the right to bear arms for a traditionally lawful purpose. The federal government regulates firearms on the basis that lawful firearms can be “recognized as particulatly suitable for or readily adaptable to sporting purposes”, so if a weapon is easily convertible in a way that violates this standard, it stands to reason the government should be able to prohibit or regulate its use. 

At the federal level there are a variety of concerns, first among these are several provisions of the Firearm Owners Protection Act. FOPA limits the BATFE to one compliance inspection a year to ensure that commercial sellers of firearms are adhering to the law, and attempts to limits on how bullets and weapons can be traced back to buyers and manufacturers. It allows the sale of any non-armor piercing ammunition to go undocumented on financial records, and allows ammunition to be purchased and shipped by mail. Also, there remains no uniform standard for qualifications needed for a person to obtain a CCW nor a requirement that individuals have a permit at all. Lastly, federal law lacks standards for devices, as well as weapons, that qualify as assault weapons which allow certain variations on military grade firearms to go untouched. 

Lapses in regulation by the federal government are exacerbated by the states, most of whom are compelled to issue permits allowing for the possession and use of firearms. Outside of the personal qualifications outlined in FOPA and GCA, a person usually needs no good reason to want such a license and in some states doesn’t even need a license to carry a weapon in public. The differences in state policies encourage many to seek out licenses in states with lax CCW permit policies and since most states accept another’s CCW’s on “full faith and credit”, a state with more stringent gun policies is more easily undermined. 

So How Can We Reform The System?

1. Repeal Select Provisions of FOPA

FOPA carries with it several provisions that undermine other statues that regulate how guns and ammunition can move accross the country. The provisions that allow for mail order ammunition, permit certain types of ammunition to go unaccounted for when sold, and the limits placed on compliance inspections by BATFE. 

2. Federal Standards for Gun Permits

To further ensure that gun owners and carriers have the appropriate training, and background for ownership the federal government should create minimum standards for CCW permits that must be incorporated into a state’s guidelines for awarding a permit. This way, the states with shall-Issue policies would still be empowered to hold applicants to the highest possible standard. The new standard should incorporate things like background checks, required training from local law-enforcement in both classroom and live fire settings, demonstrating a “good cause” for obtaining a permit 

3. New Definitions for and Prohibition of Assualt Weapons

In 1994, the Clinton administration passed the Federal Assault Weapons Ban (FAWB), which designated certain firearms and attachements that constituted an “assault weapon” and prohibited civilians from owning such weapons. Despite its expiration in 2004, the FAWB provided clearer guidelines for determining the characteristics of an assault weapon, allowing modified handguns, shotguns, and rifles to be differentiated from their legally permitted NFA variants. Any new legislation should include these categories for qualifying a firearm as an assault weapon. Also the FAWB outright banned 19 different weapon models regardless of their features and this ban should be a part of new legislation.  

4. End Unrestricted and Shall-Issue Jurisdictions

Given the abilities of modern firearms, it’s completely unreasonable for any local authority to not require a permit to purchase and use guns. Unrestricted and Shall-Issue jurisdictions enable and increase gun ownership with little qualifications, cause, or training which is an entirely irresponsible process. Instead, every state should be able to elect between may-Issue or no-Issue, such that the federal and state standards could be used to qualify a person seeking a CCW permit and so that the local authority could have some say as to whether or not the individual has just cause for desiring a permit. 

5. Increase Federal Compliance Inspections

Under current law, the BATFE is limited to conducting no more than one compliance inspection per year. Instead, BATFE should be directed to carry out no less than one inspection every quarter, not including follow up inspections for previous infractions. 

Last Words

Granted, these five ideas alone wouldn’t be enough to completely solve the problem of easy access to weapons, but it would be a good start. As it stands, the federal and state governments have plenty of laws in their arsenals that prohibit the use of military grade weapons and explosives, but handguns still pose great concern. Proliferation of these firearms has been enabled by lax state laws and ambivalent federal policy, but reforms like those above could start the process towards regulation without violating one’s right to keep and bear arms. While it shouldn’t take the deaths of 26 people to start this discussion, it’s something this nation needs to address at all levels in order to prevent another Columbine, Viginia Tech, or Sandy Hook. 

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About Alexander J Smith III

  • Igor

    The very first SCOTUS statement in Heller is alarming:

    An individual does have the right to own firearms unconnected with service in a militia for “traditionally lawful purposes”

    This is just re-writing the second amendment to better suit that political faction that favors guns.

    Maybe SCOTUS thinks it knows better than the Founders, but this is just legislating From The Bench, once the bugaboo of The Right. Apparently they have abandoned all principle.

  • troll

    @ #1…your dissenting opinion and $3.75 will get you a medium latte at World Cup Coffee on the plaza in Taos NM and little more (legalistically speaking that is)

    if you want to make ‘progress’ on controls riding the latest mass murder shock and rage wave then I suggest that you put it on a back burner

  • Igor

    @2-troll: huh? Please explain.

  • troll

    simple – given the recent majority decisions by SCOTUS we don’t need to argue the second amendment in order to develop reasonable (from the state’s pov) controls and in fact such arguments may well undermine attempts by ‘hardening hearts’ softened by the recent shooting…’never waste a good trauma on philosophy’ etc

    time to come up with some practical agreements about what the state can do to further its monopoly on violence and increase its power relative to the populace

  • troll

    …for the good of the people of course