domingo, 16 de diciembre de 2012

Access and Control

There is no argument to be made based on the Commerce Clause of the Constitution or otherwise that can forbid anyone from keeping a tiger as a pet in their home.  Besides common sense reasons, regulatory agencies from federal to local affect an individual's ability to establish at his home in any community such a potentially dangerous situation.  However, if that individual complies with all regulations, then he can keep a tiger as a pet in his backyard.  Perhaps he is your neighbor.  That compliance still defies common sense.
Memorial by art teacher Eric Mueller.

The allegorical tiger at home is brought to mind by the tragic events in Newtown, Connecticut.  The gun laws in Connecticut are strict.  The weapons were legal in a state and community that makes sure those kind of things are well regulated.  Twenty children, ages 5 to 7, were shot three to seven times each by perfectly legal guns and perfectly legal bullets.  Over one hundred rounds.  It defies common sense in a civilized society.

What are the alternative interpretations of the Second Amendment that can help us all to combat this increasingly maddening problem of mass shootings?  How to reconcile tradition, interests and legal rights of gun ownership with the potential unleashing of these weapons of mass murder upon the innocent?

The Second Amendment 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 be infringed."  Twenty seven words of contention over the years, written in the late eighteenth century, at a time when "reload" was quite a task.  And, significantly, when there was no such thing as a standing army and the defense of the state was relied upon by a "well regulated militia".  

The parsing of those twenty seven words by scholars and lawyers is what has brought upon us the situation that we have today of free roaming bullets looking for targets and publicity.  Some of these agents of obfuscation argue that the first part of the clause (before the comma) is what they call "prefatory", in essence a generic and meaningless introduction to the second part (the so called operative clause) which, they argue, gives free reign to the possession of any type of weapons.  Justice Scalia includes Rocket Propelled Grenades among the weapons that should be available to the general public under the right to "bear arms" because "they can be hand held". He does put a limit on cannons ("probably not" allowed are his actual words on cannons).

Just how non-sensical is this line of thinking? Perhaps those who actually wrote the Constitution should have a say on this.  Alexander Hamilton did in fact think that the prefatory clause was relevant and writes in The Federalist (29): 
"If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security...confiding the regulation of the militia to the direction of the national authority...(and) reserving to the states...the authority of training the militia". 
Sounds like he was talking about the National Guard, not individualistic gun collectors.  In fact, Justice Stevens in his dissent to the majority that struck down an ill framed gun restriction law in Washington, DC (Heller vs District of Columbia) makes a point on individual gun ownership and the Constitutional framers' intention:
The Amendment’s text does justify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves”
Such interpretation is logical and includes in its reasoning both the so called prefatory and operative clauses of the amendment.  The dissent containing this reasoning was joined by three other Justices.  

So, what to do?  

There is a time for grieving and a time for action.  We pray for the victims and sympathize with the survivors.  It is what makes us human.  But the best way to give meaning to the senseless tragedies of Newtown, Aurora, Portland, Tucson, Virginia Tech, Columbine and so many others is to not forget and do something about it.  I am contacting my congressman as should all civilized citizens that wish to live in a society in which mass gun violence decreases year to year, not increases.  

What options exist?  The first is obvious: ban private possession of weapons specifically designed for maximum firepower in combat.  Make it illegal to own such weapons, not even grandfathered in.  Other options are more complicated but doable.  How about limiting the number of weapons in a single dwelling?  New businesses could crop out of that one: Gun storage, probably at shooting ranges, or at hunting or gun collector clubs.  Just don't keep more than one weapon at a time in a home.  And what about bullets?  How many bullets should be kept at home at any one time?  How about no more than ten, or six?  Let me put it this way--you have to sign away every time you buy Sudafed or Claritin so the authorities are sure you do not have a meth lab at home.  Why can't the number of bullets in a home be regulated?

The legal pretense of the "operative" clause of the second amendment, as lobbied to death by an industry that just wants to expand its markets limitlessly, must be debunked.  There will always be criminals.  There will always be deranged individuals craving attention.  We just do not have to make it so easy for these anti-socials to legally access weapons of mass murder.  

Carlos J. Rangel, December 2012

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