Friday, February 20, 2015

On Guns

I’ve been reading a Facebook debate about the right to bear arms, that is, to carry a concealed weapon and what restrictions could be or should be placed upon that Second Amendment right.

Let’s start with that amendment: 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.

Unlike the other amendments, the Founding Fathers who created the Bill of Rights thought it necessary to give a reason for the right being protected. We could speculate endlessly on why that was the case, but it really is immaterial to the arguments that rage in our times. The language, as written, plainly guarantees that people may own and carry guns.

The odd thing is that the writers got it wrong. Citizen militias have never been able to maintain the security of a free state. Think about it: millions of people gather together to stare down an army. They bring squirrel guns, antique firearms bequeathed down generations, assault rifles, and on and on. They are unable to carry out any effective military maneuvers because they have never trained for such. They would be easy pickings for a real army.

George Washington did not defeat Cornwallis with citizen soldiers. His victory at Yorktown was won with a trained army, one he fashioned with the assistance of the French General Lafayette and Polish military officers Pulaski and Kosciuszko. It was a professional army that delivered independence from Great Britain (with assistance from the French navy that drove the British navy away from Virginia at the time of the crucial battle), not a citizen militia.

The Civil War (or War Between the States or the War of Northern Aggression, depending on your ancestry and location) called up state militias. But all were under the command of professional army officers, graduates of West Point. On both sides, the military was run by professional officers who undertook the great task of forming real armies. It was the only way they could hope to win the conflict.

Nevertheless, the Second Amendment grants the right to own and carry guns to ordinary citizens.

But no right, not even those guaranteed by these amendments, is absolute. The most famous example is given by Oliver Wendell Holmes in a Supreme Court opinion as the Court considered a case involving the most famous and cherished of rights: Free Speech:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

No right is absolute. So what reasonable restrictions might Congress place upon gun ownership and the right to carry?

I think our driver’s licenses is a good way to think about this. Automobiles can also be a deadly weapon, especially given the high number of hit and run fatalities my city seems to be experiencing at the moment.

In order to drive an automobile, a person has to be of a certain age, practice under a learner’s permit, and pass a test that demonstrates their knowledge of traffic laws and ability to control the vehicle.

Why not apply the same to gun ownership? Can we all agree that persons wishing to own guns should qualify through training and exams that they know the laws, what is allowed and what is not, and that they can handle a weapon appropriately?

This is not a restriction on gun ownership, but a regulation of gun ownership. Perhaps that militia reason suggests that the writers of the Bill of Rights knew that governments would have to be involved in the exercise of the right.

The right to gun ownership is not absolute. Convicted felons are not permitted to have firearms. But the right to gun ownership is protected by the Constitution.

One last word. The Facebook debate began with an essay that the Florida legislature is misguided in advancing a bill that would permit college students to carry guns on campus when college administrations have banned them. I support the right to own and carry guns. But that is in general society. The Constitution covers public areas, general arenas, and such. You do not have a right to carry a gun in my house or yard if I say no. Property owners have property rights and can make such rules. Businesses, like stores, can ban weapons if they choose. The same is true for schools and college campuses.

Or does someone want to argue that the three 14-year old students who brought guns into my school, in two cases loaded, have a right to do so?