Supreme Court’s best decision ever on gun regulation
Even people who don’t like guns ought to be happy about this week’s Supreme Court ruling that the Second Amendment – the “keep and bear arms” clause of the Constitution – binds state and local governments, in addition to the federal government. Way too much time and energy has been wasted arguing about the Second Amendment: it’s obvious the Framers expected private ownership of guns.
While the decision makes clear there exists an individual right to possess firearms, the decision also makes clear that firearm ownership may be regulated. That is every bit as important as settling the argument regarding the breadth of the Second Amendment. In fact, this week’s Supreme Court decision could be the best thing that ever happened to gun regulation – and I say that as someone who’s owned guns.
Thanks, Supreme Court, for making clear that gun ownership can be regulated. There is now no doubt an individual right of firearm possession exists, and also no doubt government may regulate that right. So let’s fix the regulation of guns — by focusing regulation on dangerous firearms.
There is a little-understood legal distinction between guns and dangerous guns. The Supreme Court’s majority opinion, most of which is by Justice Samuel Alito, spells out that dangerous guns are subject to regulation by all levels of government; a dissent by Justice Stephen Breyer adds emphasis on that issue. Lobbying and commentary about firearms has for too long been divided into camps of gun-lovers and gun-haters. We ought instead to focus on regulation of dangerous guns, which the Supreme Court ruling just reiterated is entirely Constitutional.
Aren’t all guns dangerous? In legal terms, a “dangerous” gun is one that creates risks beyond the normal risks associated with hunting and marksmanship; or that is used mainly for crime. In 1934, Congress banned private ownership of machine guns, fully automatic guns, sawed-off shotguns, silencers and flash suppressors. These weapons and attachments, Congress said, had no legitimate purposes, such as hunting or self-defense. In 1939, the Supreme Court upheld this 1934 act, and Monday, the Supreme Court affirmed its primary reasoning. Other laws restricting cheap throwaway weapons, which are plainly intended for crime, have been upheld. The Supreme Court’s new decision reiterates that gun rights may be regulated to prevent the spread of dangerous firearms, while allowing possession of guns intended for use in lawful ways.
Handguns are dangerous in the Constitutional sense, long guns are not. Nearly all firearm crimes are committed using handguns, because they can be concealed. Most gun suicides involve handguns, and most accidental firearm deaths are by handgun. Rifles and shotguns, by contrast, are seldom used in crimes or suicides, and only occasionally cause accidental deaths. Because of this, rifles and shotguns are not dangerous in the legal sense. The pump-action shotgun is even known as a “safe weapon” because it cannot be hidden, is hard to point and requires three separate motions to fire, thus almost never going off by accident.
Last summer on a clay-shooting range, a firearms instructor without hesitation handed a pump-action shotgun to my 14-year-old, a novice. He would never have dreamed of handing over a pistol: all handguns are easy to point, and many are easy to fire by mistake.
Strict regulation of handguns, coupled to broad freedom to own long guns, would make sense to the Framers – and would fit the language of the new Supreme Court ruling.
Long guns meet nearly all individual needs for firearms. Hunting and marksmanship are rifle activities; shotguns may be used for hunting, and are the best weapon for home defense. Shotguns are the best self-defense weapon because they are visually the most intimidating non-military gun.
The gun that doesn’t go off is the most effective gun. The ideal self-defense outcome is to show a weapon but not fire it. For this, long guns are better than handguns, because they are menacing in appearance and deadly if they must be used. Twice in our lives, my wife or I have shown a 12-gauge shotgun and ended a confrontation, in both cases without the weapon being fired.
Yet shotguns and rifles are close to worthless for crime, because they cannot be concealed. Studies showing that bringing a gun into the home increases the risk of gun violence within the home only take into account guns that are fired. But weapons that are shown without being fired are important deterrents to crime. MAN WAVES RIFLE, BURGLAR FLEES is a headline you’ll never see, because nothing happens. But in this instance, a long guns offers the best self-defense.
Why do individuals need handguns? Mainly, handguns are used for homicides, thefts and drug-dealing. Law enforcement officers need pistols, and military personnel carry them as sidearms. Under what lawful circumstances does the typical person need to carry a handgun, or benefit from possessing one? There are possibilities: for example, a woman threatened by an ex-husband or ex-boyfriend might have a lawful reason to carry a handgun. Most people who carry handguns do not have lawful activity in mind. By the reasoning of this week’s Supreme Court case, handgun ownership could be very tightly regulated using licensing laws, while long gun ownership would be only lightly regulated.
What about the militia reference in the Second Amendment? When the Bill of Rights was enacted, the United States had no standing army: if the country were invaded, people would need firearms in their homes. Today this situation doesn’t apply – if it did, we would want homes to contain antitank rockets. The Framers had in mind a dual purpose for gun ownership: militia formation, and personal use such as self defense and hunting. The new Supreme Court decision makes clear that the militia rational is antiquated, but the second rational remains.
Don’t we need guns to ensure our liberty? The Framers would have sympathy with that argument. But if the United States government, with its tanks and ground-assault aircraft, becomes a dictatorship, pistols won’t be the answer.
In urban circumstances, the primary use of handguns is for crime. State and local governments should employ the reasoning of this week’s Supreme Court decision to regulate handguns very strictly.
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