Sunday, August 5, 2012

Of Arms and Gun Control

Aurora, Colorado; Columbine, "Going postal", and the list goes on.

All of these represent points of tragedy for America in the last decade. Have there been mass killings in other countries? Yes. Mad men behind them? Yep. Idi Amin, Adolf Hitler, and a few other gentlemen spring to mind. They may have had a different social and legal context in which to work, but the result was the was the same. But one thing makes the American events different - the killers were not acting under the color of law.

The effect has been to focus the public's attention on "gun control". There have been definite hysteric reactions these tragedies - and the fruits of hysteria have consistently shown themselves to be dangerous to both individuals and to the community (Salem Witch Trials, lynch mobs, "The Red Scare" & McCarthyism).

So, the next step is to set aside alarmism and hysteria then go over the issues in detail, legal and social, and see if a rational, just solution can be arrived at that is appropriate for both individual and community interests.

First of all, let's examine the existing legal framework. In the United States that begins with the United States Constitution. There are additional arguments that could be added about its authority and the source of that authority, but they are controversial and their inclusion is more likely to distract from the issues, rather than support constructive conversation and analysis. The United States Constitution consists of a preamble (this is the origin of the controversy hinted at), 7 original articles, and 20+ codicils added later known as the "Articles of Amendment" or, informally, simply as the "Amendments".  The first ten of these Amendments are known collectively as the "Bill of Rights".  The second clause of the sixth original article makes the Constitution and the treaties of the United States the highest law of the land (neglecting the issue of conflict alluded to earlier). The third clause of that same article makes a requirement that all federal and state officers (at all levels) swear an oath of support for the Constitution prior to taking public office. It also has special instructions to the state and federal judiciary.

Now let's look at the sections and their meaning that have any application to this issue.

1. The Second Article of Amendment. This one has become rather infamous recently concerning the general issue of this article. It's language can be slightly confusing:
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.
Let's take the time to convert this to more contemporary language:
The safety and freedom of a nation depends on the population being well trained in national defense, disaster relief, or other emergency actions that require the response of any member of the community physically, mentally, and legally able to provide such aid as needed in for these issues. As a consequence the right of the citizens of the United States to, own, keep, bear, or use any personal tools of offense or defense including, but not limited to, offensive weapons, that can be applied to themselves, the aid of any other person, or the nation and community, shall not be infringed.
Not quite as concise is it? Here are the points that have been expanded upon:

  • Well regulated - An archaic phrase. When applied to a body of people it simply means well trained and educated for any purpose that body might exist for. It does not mean a well supervised or managed group, or one under a chain of command (like a military organization).
  • Militia - The general citizenry of the community able to come to it's aid for the defensive or other emergency purpose. The makeup varies based on laws and traditions, but that is what that is in summary. A group of neighbors acting to put out a fire, or a volunteer fire department, are small examples of militias, and in the case of the fire department would likely qualify as a "well regulated militia". It is NOT a national guard or professional body of military soldiers. They count as militia members by the general definition, but the opposite does not apply. 
  • Arms - any personal device or tool used for defensive or offensive purpose and that exists for the purpose of self-defense, defense of others, or for national or community interests. Yep, a bucket being used to help put out a fire is a form of "arms" at the time of use. The term started out as describing the equipment of a knight, but historically its meaning (legal and otherwise) has expanded. It does not mean just "gun or weapons". The particular capacities of any type of arm are not a factor in the definition - it does not distinguish between a rock, club, musket, automatic weapon, rocket propelled grenade, or tank (think of the knights "horse"). Nor the quantities of bullets or capacities of a magazine make any difference. Yes, the capacity of individual arms have increased since the original concept, but they were increasing even then. The highly advanced capacities of some arms in contemporary times due to technological advances have led some writers to argue that they should not be qualified as arms, but there is nothing to support that argument based on the definition. The idea of a "reasonable capacity" is a highly subjective measure and can't be fairly or consistently applied in a legal system. 
  • Keep - possess and/or own.
  • Bear - carry, or be able to make use of. 
So, the ideal professed by the Second Amendment is that the citizens of the United States should be trained in common defense and the tools of that defense, first aid, and any other skill needed for aiding and assisting in the community in times of public emergency and should be able to equip themselves and have that equipment readily available to themselves for that purpose. It would be hard to argue that such a level of training and community involvement lacks any contemporary value.

2. The Fourth and Fifth Articles of Amendment. These concern (among other things) property rights and due process. 

Fourth Amendment -

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fifth Amendment -
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Property rights aren't just the rights to own various piece of property, it also includes the ability to sell or acquire it as well. The above amendments can be summarized thusly: No person can be deprived of the right to acquire (via lawful means of course) or possess any property without a due process hearing for that purpose. This includes any form of arms. A person can have these rights infringed in an emergency situation of course, and through the use of a warrant upon the showing of probably cause, but these infringements cannot be lasting without a proper hearing for that purpose.
3. The Fourteenth Amendment - This is the "equal protection clause" of the Constitution. The United States Supreme Court has ruled that it makes the Bill of Rights (this is a loose description of their rulings) apply to the several states and not just to the Federal Government.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. 
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. 
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The "Necessary & Proper Clause" and "Commerce Clauses" of the Article I, of the Constitution come into the picture to create necessary legislation (there are limits here under the 9th and 10th Amendments, but they shouldn't be an issue for this conversation).

But... Given recent events with gun violence, some reasonable mechanism of regulation isn't beyond question, but such system must be in keeping with our most fundamental law.

So, a model regulatory law needs the following:

  1. A statement of purpose. This is not legally compelling, but it does serve as a guide to the courts as to the original intent when interpreting it. The law should not be named after any individuals or historic events. This is so later courts long after the event and it's principles are gone are not busy busy trying to gather facts about ancient history to decide future cases based on this statute. Declarations of this nature need to be a separate law.They provide no functional value to the model law.
  2. It should more concisely define the term "arms" with the broadest possible definition (as described previously in this article).
  3. It should create a list of excluded citizens who are prohibited from arms possession. That list must identify the specific restrictions as to type of arms, duration of restriction, and how the person is restricted in relation to them (ownership, possession, purchase, or sale). 
  4. The list is not for public consumption. It is only for the benefit of a managing agency to verify if a person is on the list and to report what that person's restrictions are. Only the courts and the managing agency have access to the list.
  5. A citizen is only included in the list after a due process hearing in open court, with benefit of counsel, for that purpose. Such a hearing is decides the existence of such restriction and it's nature. 
  6. The hearing must show cause to believe that the person will be using the arms in question in an unlawful manner in order to restrict them. This must be based on statements and declaration of the person to that effect showing intent, or the current existence of any mental disease or defect. The bar must be very high for infringing on a Constitutional right. 
  7. The person must have an indefinite right to have his or her inclusion on the list or any particular restrictions subject to review and removal. 
  8. Once removed, a person's status on that list must be sealed.
  9. Membership in the list must be only for the purpose of applying the restrictions of the list. It must not be used for any other purpose.
  10. The only people or agencies who may ask for list verification are: the listed person to check for accuracy, U.S. law enforcement personal if they have probable cause that the person might be restricted and not for the purpose of sharing the information with other agencies or people, arms sellers or any person trying to sell arms, any state or federal court of law where the current existence of such a restriction on a party before it can be demonstrated as material to the case. 
  11. A separate list of resident aliens. This list is for the purpose of granting, not denying, arms privileges. This list may include blanket restrictions or privileges. If they are granted U.S. citizenship, they are must automatically be removed from this list and their membership sealed and deleted from public records. A resident alien, or other non-citizen may petition a Federal court, United States State Department or other member of the United States Executive department as Congress may allow, or that Congress itself  for any additional privileges or exemptions to any blanket provisions. Those persons having diplomatic immunity are automatically granted such. 
  12. It should override any other state or federal law concerning arms ownership or possession.
  13. A mechanism for 24/7/365.25 checking by any person against the list wanting to transfer ownership or possession of any arms to another in the United States, without fee or license requirements, needs to be created. Criminal and civil penalties for the misuse or distribution of the information must be part of the statute.
  14. Licensed gun or other arms dealers must automatically check the list on every sale or transfer. Again, no permanent list may be required of their customers or any denials.
  15.  Any public dealer or other organization must report persons who they suspect are planning on criminal activity. The may refuse sales or transfers based on a good faith suspicion of criminal intent.
  16. Normal due process confiscation of arms by law enforcement must still be available, but the authorities must show cause for keeping any personal property in open court with the person whose property was confiscated having the right to legal counsel with no conflicts of interest in arguing on their behalf or pursuing other legal remedies. Any property must be preserved if they person is put on either of the lists and returned to them upon removal. 
So, what is covered here are the rights of: due process, property, arms, privacy, and petition. It takes in account issues of immigration and international relations. It puts the burden of proof on the government. It doesn't have any direct preventative provisions but those haven't shown to be very workable.

I welcome any suggestions to the model that are consistent with previously stated principles.


  1. Actually Richard, other than requiring another once-over for typos, which admittedly distract from the content, I find your proposal very sound and well-considered.

    Is that as far as it goes, or have you plans for attracting someone's attention with it for further consideration?

  2. Yeah, I made several typos. I also forgot the requirement that registered arms dealers need to check the list against restricted individuals - that part is essential.

    I haven't sought a sponsor yet - the topic is still yet too new - but I'd love suggestions in this direction. And proofreading is very welcome. :)

    Coming from someone with your standing such comments feel quite good.

  3. The commonly-held beliefs you espouse in the following paragraph don't make sense in the context of the Bill of Rights, history of the American revolution, and Founding Father's goals and experiences:

    "So, the ideal professed by the Second Amendment is that the citizens of the United States should be trained in common defense and the tools of that defense, first aid, and any other skill needed for aiding and assisting in the community in times of public emergency and should be able to equip themselves and have that equipment readily available to themselves for that purpose. It would be hard to argue that such a level of training and community involvement lacks any contemporary value."

    The Second Amendment has nothing to do with ensuring that the militia is armed and well-regulated (effective and proficient). On the contrary, The Second Amendment was devised to protect people FROM the militia and, because the militia lies under the realm and control of government, as it did during the Revolutionary War, it protects the people from the eventual tyranny of government.

    The militia is only mentioned in the "preamble" section of the Second Amendment. As was popular in the day of the Founding Fathers, the motivation behind a rule of law was included in a preamble. The Second Amendment was indeed motivated by the existence of a militia (or standing army today), which is necessary to protect the security of a free state, but the rule of law section of the Second Amendment protects the rights of "The People," as opposed to the militia. It does not protect a means to arm a militia, as is commonly believed--even by "pro-gun people." If the founders had been concerned about arming the militia, they would have written "militia" instead of "the right of the people." They didn't do this because the militia doesn't need protecting. It exists under the realm of government itself. A protection for the militia or any other government interest is inconsistent with the entire Bill of Rights. The Bill of Rights is entirely about protecting "The People" from tyrannical government, including protection from a militia or standing army. Penn and Teller's well-reasoned read of The Second Amendment is the only argument that makes sense in the context of the Bill of Rights, the history of the American Revolution, and the Founding Fathers' experiences and goals. Some people may not like what the Founders created, but they should accept the obvious truth of the matter! I have far more respect for this argument and Penn and Teller's argument than anything the Supremes have to say. Sadly, gun grabbers don't respond to reason at all!

  4. Great article for sure. You should make it a web page for free on To see what I'm talking about and to reach a lot more folks check out my article on the 2nd amendment at the following address: And the title is "Firearms Ownership in America" and my other favorite is Education on the Constitution and Bill of Rights - What Do You Know?
    Your article is easy to make on squidoo and will reach millions once published. It's all free and self explanatory - try it and check out my article's also. On squidoo your webpage's are called lens.
    Enjoy and keep on educating folks. America is on the verge of collapse. Dan aka Mrducksmrnot n Western NC - Open Carry State.

    1. Thank you for the kind offer - but I own my own web site already - I own a software company and I also program and design web pages. Been in general IT for over 30 years (about as long my oath!) I'm using Blogger because of some technical advantages using the Google platform.

      If you need technical support don't be afraid to ask.

      And I'm one of the people you "liked" your link shares :)

      I have a planned article coming up (when I have sufficient time and motivation) on a more advanced public revenue system. Also another one one the "controversial" issue I eluded to in the article and also hinted at in a comment at the site you found this link (the "popular sovereignty" remark).

  5. I was addressing those who try to misuse the "militia" clause. I'm not using myths though to make my argument. The militia was the common person. As one writer at the time put it (my memory is just a little hazy and I'm quoting from that, so there is likely some inaccuracy) "men from 16 to 60". The actual language in the United States Code defines it as "men from ages 18 to 45" (and that language has been there almost as long as the Constitution has existed!). What the founders were concerned about were standing armies of trained professional soldiers. Those are NOT the militia.

    The Constitution does separate out the terms. The army required funding to simply exist, but the militia could be called up at any time of foreign invasion or rebellion - it was preexisting. The terms often get conflated (the Supreme Court was guilty of this very mistake in Arver - horrible case!) Penn & Teller were just trying to keep their arguments simple and weren't out to correct people on a detail that have any impact on their argument. (I looked up the video after you mentioned it).

    But those who misuse that sub-clause often try to attack it's contemporary worth by taking advantage of that common linguistic error.

    We are actually on the same page (mostly) though.

  6. @AvelWorldCreator

    "What the founders were concerned about were standing armies of trained professional soldiers. Those are NOT the militia."

    Agreed! The founders certainly had concerns about standing armies. However, the militia was still very much an entity that lay under the realm and control of government and it was the preferred means of protecting the security of the free state in the early days of the nation. However, the existence of the militia did not need protecting nor would protecting it be consistent with the remainder of the Bill of Rights. The key point that Penn and Teller make is the distinction between "the militia" and "the people" is clearly made in the Second Amendment. The only way the distinction can be logically explained is to accept that "the people" must be armed and able to oppose "the militia," if ever necessary to thwart a tyrannical government.

    Thanks for watching the Penn and Teller video. Certainly they make a simple argument, but I find the Second Amendment to be very simple itself!

  7. I mention a planned article that explains why the militia was NOT under government control. The government could only "call" the militia not "assemble" or "compel". Militia activity was voluntary. And the usage of the term in the 2nd Ad. included that it was necessary for a free people. Penn & Teller made sure to point out that the right belonged to the people in general and not just those who chose to be part of the militia. The right secured the existence of a militia, but did not require membership in it to have the right. In modern times it would be better to use the phrase "community volunteers" instead of "militia" - it's much less confusing. There were no role conflicts - the right to bear arms belongs to the people, and some of those people can choose to be community volunteers that exercise that right for the public good. :)See how that works? Breaking it down like that really destroys the deceptive arguments of the gun-control crowd.