Opinion

Gregg Easterbrook

Supreme Court’s best decision ever on gun regulation

July 1, 2010

Guns

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.

Click here to read what the logic cop has to say on Russian spies, Tesla Motors, and Martin Feldman’s oil stocks.

Comments
25 comments so far | RSS Comments RSS

Could you expand on the term “hard to point” in reference to a pump-action shotgun? Do you mean hard to aim? If so, why?

Posted by iflydaplanes | Report as abusive
 

“MAN WAVES RIFLE, BURGLAR FLEES” sound like a joke. That implies that man had loaded gun handy. Just contemplate situation :)
Does man walk around the house with a gun?
Does man has loaded gun next to entrance?
Does man greet all visitors with loaded gun?

I love to see statistics how many housebreaking are prevented by guns compare to overall housebreaking.

“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.”
Where do you live, in Iraq?

I like to collect account from counterpart to see if 12-gauge shotgun was justified :) .

Posted by sk_usa | Report as abusive
 

“Shotguns are the best self-defense weapon” …in the home. They don’t do much to prevent muggings, carjackings, rape, or any other crime that takes place outside the home.

Posted by drewbie | Report as abusive
 

I don’t think the *military* usage was the primary point of the second amendment. The primary reason was so that if the US Gov’t ever became super corrupt and oppressive (wonder when that will happen…) they couldn’t put the people down with force. If it ever came to it, we could have a second revolution, and already have the arms necessary to do it.

Posted by murfster | Report as abusive
 

Handguns are a necessity for protection outside the home.
I always carry a handgun (fully licensed) for protection.
Unfortunately, I have had the need for it on a regular basis (several times per month).
After all the police are a reactive force, not a proactive force.
They cannot protect everyone at all times from crime!

Posted by BBJJ | Report as abusive
 

I will never understand Americans crazed passion for guns. It is like the most liked thing. http://storyburn.com is a Facebook alternative

Posted by STORYBURNcool | Report as abusive
 

Seriously? Showing a rifle (or handgun) in a confrontation in an effort to “scare” away an intruder has to be the most irresponsible advice or suggestion I have ever heard another gun owner provide. In most circumstances (maybe not your two occasions on the back 40 of your acreage, from 100 yards away) doing so would get you killed. My father gave simple advice regarding the brandishing of a firearm (to which most local laws conform) – if your going to show, point, or brandish a rifle (or hangun), you had better intend to pull the trigger. For the record, I carry a legally concealed handgun outside the home, and keep a secure loaded shotgun inside the home. Neither have ever, ever been brandished to “intimidate” or scare off anyone. If either ever gets fired (god forbid) it will be for good reason (defense of me or my family). Idiot.

Posted by PortlandMP | Report as abusive
 

Very simply – if you are in a confrontation which ends as a result of showing your gun without firing it, you used poor judgement, and shouldnt have shown the gun at all. Regulation should have nothing to do with the type of weapon, only the intelligence and prudence of its owner. Make ownership dependant upon more meaningful education and prudence, and regulation might do some good. your guns should be taken away.

Posted by PortlandMP | Report as abusive
 

Wow, this article is so filled with falsehoods and usupported opinion presented as fact, that is hard to know where to begin.
-”Shotguns seldom used in suicides or involved in accidental deaths”? False
- “Congress banned private ownership of machine guns, fully automatic guns, sawed-off shotguns, silencers and flash suppressors.” False. It’s a $300 liscense to own any or all of these. If you own a corporation it’s even easier.
- “Most people who carry handguns do not have lawful activity in mind.” WTF? Uh, next time do some research before you write. False again. most people who carry hand guns do so for self defense and the defense of others. They carry hand guns to prevent crim and harm.

I think this it is dangerous to confuse this article with fact. It is an inti-gun opinion propiganda without any regard for facts.

Posted by MC_FL | Report as abusive
 

One doesn’t have to live in a war zone to have a real need for a long gun inside the home. Many cities around the United States suffer from the type of criminal who, also being armed, will not hesitate to break into your home knowing you are at home. This type of criminal has already made a decision to do physical harm to you and your family if you get between him and his activity and the only way to defend yourself and loved ones is with a firearm. The shotgun is the best defensive weapon in this case, and speaking from personal experience, given the terrifying prospect of being forced to use it on another human being it is the only one effective enough under extreme stress. Too many times have I seen the headline in our local paper ‘homeowner and family killed in home invasion’.

Posted by lebateur | Report as abusive
 

If the first skyjacking in 1964 had been met with armed resistance, there never would have been a 2nd ocurrence. 9/11 would never happened.
In any social situation, the good guys outnumber the bad people by a wide margin. We have disarmed the good and the law abiding, who would never commit a crime, and will never disarm the criminals who are more than willing to commit a crime.
The police virtually never prevent any crime. They only show up when called after the fact, and investigate what happened to the victims.

Posted by Sternberg | Report as abusive
 

Greg I like most of your articles between this and the Tuesday Morning QB on ESPN. But you missed a pretty large usage of handguns. It’s the only usable ‘portable’ defense firearm. To say most handguns are carried to commit crimes is unfounded.
quote : “Most people who carry handguns do not have lawful activity in mind.”
There are a large number *hard to peg since not all states release the info* of people in the USA that carry handguns on their person every day, and fire them only when they are attacked or at a shooting range. Other than that I mostly agree with what you have here.

Also “The ideal self-defense outcome is to show a weapon but not fire it.”

Quit saying this ever… EVER!!! WHAT YOU ARE SUGGESTING IS A CRIME IN SOME AREAS. If you pull a gun, without a real reason to shoot, such as your life isn’t really in danger, then you are brandishing a weapon or assaulting a person in some areas. Bone up on the topic more next time.

Posted by Fellowes | Report as abusive
 

I once owned a sawed off shotgun, but when my spouse found me wandering the house asleep(which according to the doctor you’re not supposed to be able to do) my gun was sold!! Any suggestions?

Posted by jhl | Report as abusive
 

I wanted to clarify above that millions of Concealed Carry permit holders carry handguns every day without having ‘Crime on their minds’.

Posted by Fellowes | Report as abusive
 

What? You’re the poster child for the need for a self-defense class. Personally, I think everyone who moves a firearm out of a domicile should take one, but anyway…

If you show a firearm, it’s “brandishing a firearm”, which is ILLEGAL in most jurisdictions, you’re better to blast the creep, unless your state has a duty to retreat. If so, sorry, your state values the life of criminals over yours. Move.

Secondly, it so happens that shotguns especially are often used in violent crime, the gold/junk/coin dealers in my town were robbed last year by a nice young gentleman with what sounded like a 20 gauge single shot.

You’re all wet, and those of us who know what we’re doing are really worried about your welfare. Educate yourself, empower yourself.

It’s more than simply having a hunk of steel in the closet, you need the mental agility to utilize it.

Posted by dzoo35 | Report as abusive
 

It’s pretty clear you didn’t read either the Heller or McDonald opinions and have no idea what you are talking about. If you had you would know both of those cases specifically called into question HANDGUN bans in urban settings. So claiming these cases will somehow allow handgun bans is pretty naive and uninformed. Yes, the opinion allows for some regulation of the right, like forbidding criminals or the mentally ill from owning them, but that does NOT mean nation-wide gun control will suddenly become easier.

You keep talking about “hunting” and “marksmanship sports” as if those are the only legitimate reasons to own a gun. Again, if you had read the opinions you would know this is entirely false.

The entire article is full of errors and misinformation. It would take a repose just as long the article to refute everything wrong with it.

Posted by thickhamsteak | Report as abusive
 

Look up Kennesaw, GA… Guns are mandatory and it’s got one of the lowest crime rates around. I’m no fan of guns but it works

Posted by GA_Chris | Report as abusive
 

There really isn’t an argument here. The 2nd amendment. That is all you have to say. In switzerland, everyone is issued a military style firearm. In fact, most nations allow guns to a certain extent. The US is not different from others, in fact the country with the most violence due to guns is Brazil. But, then again, guns don’t kill people; people kill people. In China, they use knives to kill little children at schools.

Posted by Thenonaligned | Report as abusive
 

LOLS!! Need a pistol to defend yourself from crime do we?? And someone mentions that we can have a revolution if the gov was oppressive? LOLs Tank, pistol, rifle, tank wins:). This is not the 18 century anymore pple, gov can own u if it wanted to. Just look at Iran and Ayatollah. That could be anyone, even pple with guns. Best form of defense against oppression is boycotts and marches. Dont get me wrong, I like guns but plz dont scare youself into buying that 50 caliber desert eagle on account that you think everyone is out to get you. Just admit that its ur urge to play vigalantte lol.

Posted by Cranberries | Report as abusive
 

US Constitution, Art. I, sect. 8, paragraphs 12 and 13, “The Congress shall have power . . . to raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; [Congress shall have power] to provide and maintain a Navy.” Between the two of them it sounds to me like the founders intended a permanent navy but only an army as needed by whatever emergency existed at the time, hence the purpose of the Second Amendment. As to murfster and others who believe in a Second Amendment option to the results of the ballot box, I refer them to Art. III, sect. 3, para. 1 defining treason as exactly what they are proposing.

Posted by borisjimbo | Report as abusive
 

Having now been in the US 10 years, I still don’t understand this strange bond to every single word the constitution says. This was written over 200 years ago. Granted, much of it was written broadly enough such that it remains open to interpretation, but there as Samuel Allito indicated, there are areas of it which are antiquated and no longer relevant. Let’s be reasonable – there is no way the framers could possibly anticipate modern life and to believe every word of the constitution remains valid 200 years later is not something that the framers would have believed reasonable. It was written to the best of their knowledge and abilities at the time. It will and should evolve. We can’t anticipate what life will be like in another 200 years, but let’s assume ‘phasers can be set to stun’ and are guaranteed to do so by being able to programmatically determine the right amount of stun needed for each individual irrespective of that persons size. In this scenario, why would a regular homeowner need a weapon that isn’t designed for markmanship or hunting (e.g. a handgun or machine gun) and why therefore should it remain legal?

Posted by DifferentPOV | Report as abusive
 

After reading the above article, I have come to the conclusion that Reuters has no corporate policy against its employees taking hallucinogenic drugs.

Posted by BastHotep | Report as abusive
 

There is no legitimate use for handguns?! Uhm… women who work at night in dangerous areas perhaps? Who can’t fit a 12 gauge in their purse?

No legitimate use for handguns… ha!

Also, I disagree that the sole purpose of the 2nd amendment was because the framers wanted to go hunting and lacked an army. The British destroyed a depot full of military supplies in Concord. They emphasized the importance of the right to bear arms after this, because the oppressive British government destroyed them, leaving them defenseless.

Posted by Jacolyte | Report as abusive
 

DifferentPOV-

We have a bond to our Constitution because we believe in rule of law, not rule of men. You may point to some esoteric sentence fragment that has become obsolete, and claim that the entirety of the document must therefore be invalidated, but you would be wrong to do so. The U.S. Constitution is a framework designed to limit the powers of the government. It was designed so that our government would be focused on doing what it was supposed to be doing, without tyrannical rule. Taking one look at how the power grab by the federal government over the past several decades has degraded our liberties and put us on the precipice of financial ruin, it is plain to see why the Constitution was designed as it was, and it is also unfortunate to see how our federal government has practically shredded it.

Posted by BagOfWater | Report as abusive
 

Lol! You are an idiot man. “Under what lawful circumstances does the typical person need to carry a handgun, or benefit from possessing one?” Are you kidding with me? Because good law abiding citizens should be allowed to carry them for protection. I don’t understand how people like you just don’t get it that criminals will ALWAYS have handguns, machine guns, and anything else they want. It’s only good people that follow the rules. People who have a perfect background, know the rules, and are well trained on how to use a gun have every right to carry a handgun on them. It is safer for them, as well as everyone else around them. Have you ever had a thief pull a gun out on you in a parking lot? I bet not. Well, my friend…I have, and I’m not joking around. And as soon as I pulled out my .45 Colt Commander 1911 and shoved it in his face, he went running. The fact that I had that gun with me very well could have saved my life. My dad has had to pull a gun on someone as well, and my brother in law has done it twice. (It’s great having to go to downtown often isn’t it? haha.) I can not believe how some of you just don’t get it.

Posted by collegeboy | Report as abusive
 

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