I don’t know if it is possible, but I’d like to try to find some discussion space in between the two extremes in the gun control debate. On the one side you have those that believe that any gun the military might have should be legal, perhaps even required, to be in private hands. On the other, you have folks who believe no one, except maybe the police and maybe not them, should have access to guns. If we can leave those two alone for a minute, forget them for a bit, perhaps we can have an intelligent discussion on the issue of gun control.
Okay, this is my blog. So it isn’t really going to be much of a discussion. It’s going to be my take on the gun control debate. I hope you will give me your take on the issue in the comments. But if you hold either of the two positions above, I’m already telling you I’m ignoring you as a kook.
From what I’ve seen the debate centers around some pretty standard topics, and I’ve actually done a bit of research on each one. The topics seem to be:
- Second Amendment
- Types of guns allowed
- Gun registration
- Background checks on gun buyers
Let’s tackle the first one. The Second Amendment issue.
The argument for more gun control using the Second Amendment is that over quoted phrase “well regulated.” Just in case you’re unaware of the wording of the amendment in question, here it is:
“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.”
Those in favor of increasing gun control look at this amendment and focus in to the phrase well regulated and justify it as proof that the federal government has the right to pass gun control laws. Those in favor of less control on guns skip over that phrase and concentrate on the “shall not be infringed” part. So how does one, who wants to be honest with themselves, rectify “well regulated” with “shall not be infringed?”
I think an analogy is in order. I found a great one at a pro-gun site, but frankly it makes the most sense to me. Unlike most pro-gun sites, this site goes to great lengths to document and back up their points, and this one just makes sense. The site I’m talking about is guncite.com. Here is their very well thought out analogy on the Second Amendment.
“A well-educated electorate being necessary to the preservation of a free society, the right of the people to read and compose books shall not be infringed.”
This phrase is grammatically identical to the second amendment, and yet it takes out all the emotion of the gun control debate. I find it difficult to believe that anyone who reads this analogue would assume the writer means only a well educated electorate has the right to read and compose books. It makes it clear that the intent of the phrase is “A well-educated electorate” is important to “a free society” and therefore the right of ALL people to read and write books shouldn’t be infringed.
Similarly, the Second Amendment should be read in the same manner. A well regulated militia is important. And since it is important, we will not infringe on the rights of our citizens to keep guns. Any other reading of the amendment, to my mind, is self serving. We have the right to keep guns enshrined in the Constitution. For me, that debate is settled and it will take some serious convincing to make me think otherwise. Anyone want to take a shot at it?
That does not, however, make me believe that there is no right of federal or state governments to place limits on how you use, display or handle the guns we have the right to own. I think that the handling of guns is very much an interest of governance.
But there are two parts to the amendment and to the analogue. Sticking with the analogue for the moment, nothing in the phrase gives one the belief that the writer believes you have the right to read while driving. Just that you have the right to read.
So I think it is clear that the right to keep a gun is enshrined… but just as clear is the right to “bare” a gun. But reasonable limits on how you carry a gun can and should be placed, as long as the right is kept. In our modern society there are two ways to carry a gun; open and concealed. Laws concerning both are, in my mind, legitimate and of public concern. In almost every state that has an open carry law, they also make it clear that you can’t carry it openly in a threatening manner. And in states with a conceal carry law, most if not all require that you have a permit. I don’t have a problem with either of these laws, they just make good sense.
Now on to types of guns.
It is currently in vogue to say that certain types of guns should be outlawed for the common good. On the face of it, I have to agree. Sort of. We have to go back to the intent of the Second Amendment to wrap our brains around it. The idea being that a well regulated militia is important, so having a population with guns that could be used in that militia is important. I don’t believe that the Constitution meant that the population should have every type of military weapon available at the time. The idea was that when the militia was called up, they would bring their guns and supplies with them, but not that a called up militia would be expected to bring canons. In the same vein, I don’t believe that the second amendment gives me the right to own a fully operational M1A1 tank or a nuclear bomb.
That said, I do believe it gives me the right to own a fully automatic military grade machine gun such as a M16. And I have that right today. It takes a special license, and I don’t have a problem with that either. If I want to exercise the right to carry a fully automatic weapon, I can. It just requires a federal license. Additionally, those guns are registered and taxed upon transfer. So if I want to play in that murky world, I can.
But getting a license to carry a machine gun, and buying a machine gun, are expensive. Out of the reach of most people. So it isn’t really machine guns that people are talking about. Instead it is other things. So called “assault” weapons. High capacity magazines. Semi-automatic pistols and rifles.
I understand the reasoning. If you can limit the number of bullets, the speed of those bullets and how fast you can shoot bullets you can increase public safety. That’s understandable. But so far, I haven’t really seen a ban on types of firearms that would really do any good.
The problem with assault weapon bans are that they are being proposed by people who don’t understand firearms at all. The argument seems to be that certain types of weapons have no use but to kill people, and we should outlaw those guns.
Except that the purpose of the second amendment is clearly designed to allow the populace to carry guns designed to kill people. That’s why the Constitution was written the way it was written. It’s an ugly truth. But even saying that, the people wanting to ban certain weapons are still off base.
Pictured above is an AR 15. It is the semi automatic version of a military machine gun. It is fully legal under current laws and is available in a wide range of chambers. I got this picture off the internet, so I’m not sure what this particular gun fires. I have to agree, it is one scary looking gun.
And because it is scary looking, or has some cosmetic features (notice the “flash suppressor” and telescoping stock. Don’t forget the bayonet mount.) some want this gun banned as an “assault weapon.” The thinking is, this gun isn’t good for self defense, and inside a home it isn’t unless you’ve had some serious training, and it isn’t used for hunting. So it should be outlawed.
There are two problems with this line of thinking.
The gun above is a Ruger Mini 14. It is significantly less intimidating when you look at it. It fires the same round as the most common model of AR15, .223/5.56. It looks like a hunting rifle, and in fact that is what it is. It is a superb rifle for bigger game, such as deer, coyote and boar. So the first problem with the Assault Rifle ban is this… why is the AR15 banned and the Mini 14 not? They shoot at the same speed, the same bullet and cause the same damage.
Here’s another reason “assault rifle” bans don’t make sense.
The gun above is ALSO a Ruger Mini 14. It is functionally identical to the much friendlier looking hunting rifle, but the gun above would be banned as an “Assault Rifle.” That makes absolutely no sense.
As to the not using the AR15 for hunting, that simply isn’t true. The AR15 is also an excellent rifle used for hunting the same game as the Mini 14. And it is used by a very large group of people for hunting, current and former military. And it makes perfect sense that these men and women would use an AR15 for hunting.
I wouldn’t use a AR15 for hunting because I’m not familiar with the gun, and when I’ve fired one in the past, it felt uncomfortable in my stance. I’d prefer the Model 10 for hunting. But the military trains on the AR15’s military version. They are quite comfortable, even proficient, in using, handling and shooting this style gun. Why should we ban the AR15 and take the gun military hunters are the most comfortable firing away? Is it smarter to put hunters on guns they aren’t comfortable using? Personally, I want the gun user to be as comfortable and secure with their gun as can be. Why force all these military hunters to relearn on a new gun?
The same misguided thinking goes into the debate over magazine size. While hunting, most states limit the rounds you are allowed to have in your gun depending on what you are hunting. That’s fair. But in a self defense mode, that doesn’t make sense. You can’t tell me that I’ll only need 7 bullets to deal with any self defense situation that may arise. There are only two reasons for telling me this, you don’t understand guns as they are used for self defense or you don’t believe guns should be used for self defense. The second reason is a whole other blog post.
And the topic of Gun Registration
In what is, by far, the most common sense and rational gun control argument would be the idea that we should register every gun to the person who owns it. What a aide that would be to police around the country to know in a matter of minutes who owns a gun used in a crime. There are two types of registration, the first is by serial number and the second is by tool marks. The second is the most useful to police investigation.
We’ve all seen police dramas on TV where the good guys get a bullet at a crime scene, match that bullet to a gun and go get the bad guy. What if every gun in the country was registered and a test firing of the gun preformed. All police would need is a bullet at a crime scene to go get the gun owner for questioning! And it wouldn’t even have to be a bullet, not used much on TV but just as accurate, each gun leaves a “fingerprint” on the shell case as well! The FBI has an extensive database of shell case markings as well as bullet markings.
So why isn’t this a good idea?
The first reason is simple. Guns aren’t people. Their “fingerprint” isn’t permanent. I own a rifle that has been fired well over 10,000 times, and I promise you the tool marks on both the bullet and the case have changed dramatically from the first firing to the last. (No, I didn’t fire that rifle that many times. It was my father and he was a competitive marksman in his younger days) Additionally, a gun could easily be modified to change the tool marks. And it might not even be intentional. Cleaning, servicing and repairs would all change the tool markings over time.
But more sinister than that, gun registration leads to gun confiscation. WHOA! Did I just say that?
Any serious gun control advocate who is still reading this post just went ballistic. There is the proof I’m a right wing nut job. No one has said anything about confiscating guns. I agree, no one who isn’t a kook, has. But bear with me a second.
In nearly every country that has started a gun registry, gun confiscation has taken place. (To date, it hasn’t happened to the Swiss) History bears out the truth behind the paranoia. Australia, The United Kingdom, Canada and many other countries have had registries that were later used to confiscate guns. But we don’t even have to look outside our borders to find the “paranoid” truth.
New York City enacted a gun registration in 1967. All residents in the city had to register their long guns. In the early 1990’s, New York City banned Assault Rifles. Using the registry earlier established, residents of New York City were notified that they had to surrender their guns, or remove them from the city. By using the registry, police had probable cause to perform searches of homes to ensure that the guns had been removed. Additionally, California has done the same, telling legal gun owners that they now own banned guns and that the guns must be surrendered or removed from the state upon their death.
So don’t tell me that gun registry doesn’t lead to gun confiscation. It has already happened right here in the good old USA. I may be paranoid, but I’m also right.
So what about Background Checks?
What about them? I love them. I think it’s a common sense gun control device that should be universal. Yes, I said universal. I think it should absolutely be illegal to sell a gun without a background check.
All Federal Firearms License (FFL) dealers have to preform one already. The recently defeated bill in the Senate seemed to ignore that fact. It was designed to require background checks at gun shows, even though the vast majority of dealers at gun shows were FFL dealers. But that’s, again, another blog post for another time.
Those who oppose background checks on guns claim it is a stepping stone toward gun registration, and it certainly could be but doesn’t have to be. They point to the FBI and the ATF as the big brothers on the block trying to keep track of you and your guns. That is a fundamental misunderstanding of how guns are purchased today.
If you go into a gun shop today and buy a gun from a FFL dealer, there is a process in place that works quite well. To start with, after selecting the gun you’d like to purchase, the FFL will give you a form to fill out. This form is known as a 4473, or a Firearms Transaction Record. On this form, the FFL will gather information about your identity, including drivers license number or state issued ID number and optionally a social security number. He will then record on the form all the information about the gun you wish to buy. Sounds like registration, doesn’t it?
And in a way, it is. The 4473 is an official ATF form. But that’s not how it is used.
The FFL will take the form after it’s filled out and make a phone call (or a computer connection) to the FBI’s NICS. The NICS, or National Instant Criminal Background System, is the official method for FFL’s to do a background check on a buyer. Some states have their own version that interfaces with the FBI’s, but most states (30) use NICS. (California, which as I mentioned, registers all long guns, only uses NICS for handguns, but a state office for long guns) The FFL gives the NICS your personal information and usually gets a quick response in one of three ways. Sell, Deny or Delay. At no time does the FFL give NICS or the FBI any information about the gun you are trying to buy.
If it is a sell, the FFL takes your money and gives you your gun. If it is a deny, the FFL sends you on your way, without the gun. If it is a Delay, the FFL tells you to come back in three days. NICS has three days to look further into your records and report back to the FFL. If the FFL doesn’t get a response after three business days, he will sell the gun to you. (if after that, the NICS calls back and says deny, the FFL will give your information to the police who will come and get your gun.) Daily the database is purged of requests, so no record is kept of who attempted to buy a gun.
Now what about 4473? What happens to it? While it is a ATF form, it doesn’t go to the ATF. The FFL must keep the form on file for a period of either 5 years in the case of a deny or 20 years in the case of a sell. After those time limits expire, the forms are destroyed.
But that’s not the WHOLE story. The FFL keeps what’s called a “bound book” a “ledger” or a A&D book. This book is the record of every gun the FFL buys and sells. It has all the same information as the 4473. And they are required to keep that book forever. Upon retirement from the business, they are required to turn that book over to the ATF.
Wait a minute. Isn’t that registration?
Not really. There is no standard format for these books. A FFL might change the format over time as well, since this is the book used to inventory the gun store. A large gun store will sell hundreds if not thousands of guns in a week. Here in Huntsville, Alabama we have one of the nations largest seller of guns. He’s been open for decades and has probably a million or more entries in various bound books over the years. So when he goes out of business, if he goes out of business (it is rumored he did over a million dollars in sales at his last event, so I don’t think it will be soon) he turns all that over to the ATF. Just how quickly do you think the ATF can turn decades of hand written entries into a useable database?
So buying a gun is not the same a registering a gun right now, and it doesn’t have to be in the future. There are two methods that could easily be used to give everyone the ability to do a background check before selling a gun. The most obvious is open up NICS to everyone, not just FFL.
There is a drawback to this, NICS could get swamped with requests. How easy would it be to call NICS to do a background check on your pretty daughter’s new boyfriend? The abuse would be rampant.
But there is another way to do it, and it already exists. Use an FFL to facilitate the sale.
Today, FFL’s are allowed to facilitate the sale of handguns between individuals. An individual would use a FFL for this for a couple of reasons, the first is that he just wants to be sure his gun is going to someone reliable. The second is because it is illegal for an individual to sell a gun to a person not in his state, and using an FFL gets around that. So FFL’s already have the ability to facilitate private sales. So make it required that all sales go through an FFL.
The FFL charges a modest fee for the facilitation. The local gun shop mentioned earlier charges $25. Basically what happens is the buyer and seller go to the FFL, the FFL does the background check, if approved for the sale, the buyer pays the seller and one of them pays the FFL. On paper, what happens is the FFL “buys” the gun from the seller and then “sells” the gun to the buyer.
As I’ve already shown, the FFL buying and selling process is not registration, so this seems to be a sensible system to make the exchange happen and keep public safety intact. Not only that, it would make straw man purchases and gun trafficking even more difficult. Plus it would prevent sellers from having to keep paperwork on a gun they sold 18 years ago. Instead, if asked by the ATF about the gun, they simply say they sold it to such and such FFL on or about a certain date. The FFL will have the 4473 on file, and all is well.
So I do believe we could go to a universal background check, but to do so means more than just a method to do it. Stiff fines and penalties must be in place for people caught with a gun not purchased through the system, as well as fines and penalties for anyone caught selling a gun without doing the same. And there in lies a problem.
After the background check bill died last week, President Obama said that he was going to step up enforcement of existing laws to protect the public. If true, then he will have done more than any other president to protect us from illegal guns. If he is looking for a place to start, I have a suggestion. NICS.
According to the FBI, since established in October of 1998, NICS has turned down a buyer 1,015,699 times. Of those million plus times, 590,070 of them have been due to a criminal record. That’s 58.10% of the time NICS turns down a buyer because he was a felon who crime was punishable by a year or more, or a misdemeanor punishable by two years in prison. You are told when you fill out the 4473 that it is illegal to purchase a gun if you’re a felon. That’s 590,070 potential criminals who illegally attempted to buy a gun. How many were prosecuted? Statistics on this are hard to fine nationwide, but very few. According to a report by Syracuse University, the Obama administration has prosecuted only 2 cases of felons lying on a 4473. That’s not a typo, it really says “two.”
Are there other ways to stop gun violence without gun control?
Overall federal gun violations, according to the same Syracuse report I just mentioned, show that under Obama, gun violation cases are down from the high it reached under his predecessor. Looking at a 25 year period, Obama’s record is still much higher than pre-9/11, but for a President who is adamant about gun control, you’d think he’d be doing more about gun violations than he currently is.
On the State level, felon’s in possession of a gun are either not charged with the possession, or the charge is plead away. That needs to stop. If states would view illegal possession as seriously as the crime committed using the gun, you’d see illegal gun possession go down. And while possession of a gun by a felon can have a probation revoked, after having the probation revoked it is rare to charge the felon with the additional crime of possession.
The simple fact is, gun control is a bandaid to the national psyche and not a serious method of reducing gun crime. It’s all about emotion and theater and not ending violence. If administrations, both state and federal, were serious about wanting to end gun violence (an impossibility, but it can and should be drastically reduced) then they would rigorously enforce current laws already on the books instead of detract from their existing record of being soft on gun crime.