On February 27, 2018
© By John Arkelian
Should teenagers be allowed to have machine guns? Yes or no? It’s really as simple as that. The carnage wrought recently at a Florida school was perpetrated by a disturbed teen in legal possession of what amounted to a machine gun. In a sensible world, those words, being “in legal possession of a machine gun,” ought to be self-contradictory nonsense. Who in civilian life ought to be in possession of a machine gun, ever? Such weapons, whether they are technically described as “semi-automatic” or “automatic,” are designed for a battlefield: They have but one purpose – to kill people as quickly and efficiently as possible. They do not belong in civilian hands – period. But, that eminently obvious proposition runs headlong into the absurd contention that the Second Amendment precludes any and all regulation of guns in America.
The United States Constitution is the highest law in the land. Its first ten Amendments form the Bill of Rights, which protect our inalienable rights by limiting the power of the federal government to act in those areas. Freedom of speech, freedom of religion, freedom of assembly, freedom of the press, and protection against unreasonable search and seizure are among the rights enumerated there. And so, too, is the right to bear arms, which is set out in the Second 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.”
But no right, however precious, is ever absolute. To use the tried-and-true law school illustration: No one has the right to falsely shout ‘Fire!’ in a crowded theater. Doing so is apt to cause injury or trauma to others, so the speaker’s right to free speech is circumscribed to the extent that it collides with the right of other people not to be gratuitously harmed or traumatized. A right, even an inalienable right, is in no way exempt from being limited in ways that are reasonable in given circumstances. And it must give way when its exercise tramples on other rights of other people. (Sadly, however, in wake of 9/11 and the unending “war on terrorism,” we’ve been duped by our own governments into acquiescing, among other things, to grotesquely intrusive mass surveillance of one and all. They argue that we must give way on fundamental rights for our own protection: The result is a cynical, pernicious, and grossly unjustified trade-off – of fundamental rights for illusory ‘security’ – that adversely affects every single one of us. Oddly enough, the vociferously indignant champions of guns are strangely silent when it comes to this egregious infringement of human rights that really matter.)
Unregulated access to firearms poses an obvious danger to public safety. True, an aggrieved person, a deranged person, or a person who is intent on harming others in the name of some noxious ideology can do so in any number of ways – by running amok with a knife, by igniting explosives, by hijacking an aircraft, or simply by driving a car or truck into a crowd of people. But the simple fact is that most acts of mass violence in America are perpetrated with firearms. And semi-automatic and fully automatic firearms are the weapons of choice for those who are intent on inflicting mass casualties. No other weapon can match them for their speed and efficiency in slaughtering people.
Universal access to such weapons (and their ubiquitous presence in civilian hands) is incompatible with the common good. It also incompatible with the fundamental rights to “Life, liberty and the pursuit of happiness” set out in that other founding document of the United States – its Declaration of Independence. Ready, unregulated access to what amount to ‘weapons of mass destruction’ puts others at unreasonable risk and directly threatens their lives and their pursuit of happiness. It is also at odds with the spirit of the Preamble to the Constitution of the United States, which sets out that governing document’s overarching purpose: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Where’s the “justice” in putting the lives of the many at risk to grant a disturbed teen the “right” to have a machine gun? How is the currently feebly regulated ease of access to firearms of all kinds consistent with either “domestic tranquility” or the “general welfare?” The answer is that it is not.
The rabid extremists (the National Rifle Association included) who insist they they’ll brook no “infringement” of any kind on their right to bear weapons of any kind espouse a position that is absurd both at law and in practice. Restrictions already exist. So far, we haven’t heard of anyone espousing the right of a ten-year-old to carry a handgun to school or of anyone to bring a bazooka to a crowded public event. If some regulation is both reasonable and practiced, as it clearly already is, there isn’t a practical reason under the sun why other restrictions aren’t likewise reasonable and consistent with the Constitution.
The United States can and should impose reasonable restrictions on gun ownership, including such obvious basics as thorough screening (for age, for criminal records, and for mental instability) and sensible limits on the kind of guns deemed fit to be in civilian hands. It should make such requirements universal, by eliminating current loopholes (like firearms purchased at gun shows). It should ensure that screening is effective and that set methods are prescribed for documenting instances of people who have, for example, demonstrated mental instability by making threats online or in disputes with school staff or law enforcement authorities. Are “open carry” laws reasonable, ever? Are they consistent with a civilized society? Does a right to carry “concealed weapons” meet that standard, either? The United States can and should impose reasonable restrictions on the kind of guns deemed fit to be in civilian hands. It may be that very few of those in possession of semi-automatic or fully automatic weapons will ever use them against others. But the terrible devastation caused by the very few who do is sufficient to make their possession by any civilians unreasonable and incompatible with the general welfare.
Notwithstanding the language used in the Second Amendment, governments (federal and state) already “infringe” the right to keep and bear arms in a myriad of ways. There is no legal or constitutional impediment to reasonable regulation in the interests of public safety and to preserve of the right of others to life and the pursuit of happiness. The high school kids in Florida were robbed of those inalienable rights by the competing (and conflicting) “right” of a disturbed teen to have a machine gun.
Besides the duty of governments to protect competing rights by acting as a referee when said rights collide, common sense also plays a role in interpreting constitutional rights. Remember the words: “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.” They were composed in the late 18th century, when a mostly untamed continent posed many potential dangers for the newly formed nation hugging its eastern seaboard. Predatory wildlife, hostile indigenous people (perhaps resentful at being displaced from their lands), and possible conflict with European colonial powers posed dangers to the new nation – and to its people. The solution was the ability to defend oneself and one’s community by having a musket close to hand. The two clauses of the Second Amendment were clearly meant to be read together: Because a ‘well-regulated’ citizens’ militia was essential to the security of Americans, their right to “arms” (as that term was understood at the time) was not to be infringed. There is a clear and necessary causal link between those two propositions, as follows: ‘We need a militia, therefore the people who will form that militia, when called upon to do so, must have firearms at the ready.’ To put it another way, people are assured of access to firearms specifically because they may at a moment’s notice be called upon to serve in a militia. The U.S. Supreme Court squandered its chance to endorse that causal connection and to make it explicit: Your right to bear arms may not be infringed – to the extent that it coincides with your service in a citizens’ militia. (And, “a well-regulated militia” obviously does not include a bunch of self-appointed crackpots in the woods, fueled by some conspiratorial notion that the government is out to get them.) This reading of the Second Amendment would grant greater access to weapons to those who serve in part-time citizens’ militias (local variants of state national guards). Such participants might even have access to ‘machine guns,’ but they’d be subject to strict restrictions on their use and storage (probably in locked militia safes). And they would be obliged to do training and regular service with a regulated militia at fixed intervals. In the event of natural disaster, foreign invasion, unlawful armed insurrection, or our own government turned despotic, these latter-day “Minutemen” would be a part-time citizens’ militia charged with defense of our country and our Constitution.
Where, oh where, is rationality in the endless war of words over firearms? Clearly, farmers, ranchers, and those living in remote rural places have legitimate reasons for having reasonable types of firearms. That rationale, however, manifestly does not apply to people living in urban settings. And, there’s an overarching question: When will we learn that ‘money shouldn’t talk’ in politics? Whether it’s the NRA on guns, or any number of other corporate or moneyed interests on other issues, we need to get the pernicious, corrupting influence of money out of politics once and for all. Only then can we dare to hope that our elected representatives will serve the public interest rather than the self-serving imperatives of their own reelection financing.
John Arkelian is a former federal prosecutor and a legal adviser in constitutional law.
Copyright © 2018 by John Arkelian.