I’ve written some on the issue of the 2nd Amendment and firearms in America here and elsewhere over the past five years or so.
I’ve listened to the leaders of our nation and our Party and also to the leaders of the Republican Party and the NRA and the Media on the issue of firearms and gun violence.
What I’ve heard, mostly, is a never-ending litany from politicians about how hard it is to do anything to stop the gun violence which is proliferating across our land.
I’ve seen Bills brought to the US House and US Senate to add some moderate regulation to firearms ownership — and almost every one of them has failed to become Law. Even in the wake of the public slaughter of little children in their elementary school (Sandy Hook, Newtown, CT) or of parishioners in their House of Worship (Charleston, SC) or Legislators on the campaign trail (Gabby Giffords in Casa Adobes, Arizona). No one and nowhere is safe from those who would commit public mass murder.
Another instance of public mass murder happens on a regular basis in America now. Police officers continue to shoot and kill (mostly) black (mostly unarmed) Americans without any apparent cause, day after week after year. Yesterday, snipers killed police officers during a Black Lives Matter protest in Texas.
Where will it end? How many of our fellow Americans must give up their Right to Live before the Nation and The People do something to change this?
Is it FINALLY time for the people of this nation to decide that enough death is enough and that it’s truly time to do what is needed, for the protection of the vast majority of Americans from random gun violence?
I believe it is long past time to do what is needed, and none of it requires we erase the 2nd Amendment.
Every Right enshrined in the US Constitution is open to regulation, including the 2nd. Rational, reasonable people must be able to look around them and say, “We cannot allow this violence to continue unabated”.
The question is, what should be done.
I propose the following:
1. Require all firearms owners pass a yearly Safety and Handling certification test at an authorized, secure, Certification Facility. Failure to pass would require the testing facility retain their firearm, in a secured locker, until such time as they do pass. This test would include: handling, firing, cleaning and storing the firearm and understanding of their own current State Law regarding firearm ownership.
2. Institute a Universal Background Check system, available to all Federal and State Law Enforcement and maintained and funded by the Federal Government. Require every gun purchase in the nation include this background check and a response before a firearm can be conveyed to the purchaser. Eliminate the Brady Bill loophole of 3 days for a background check, the sale cannot complete until the background check returns an answer of No Limit to Purchase.
3. Require every firearm owner purchase and maintain an Insurance Policy covering accidental death or disability from firearm discharge.
4. Institute a federally-funded, no questions asked, gun buy-back program. All such firearms to be melted down and not resold. Stolen firearms which had been properly reported to Law Enforcement may be returned to owners who can produce documentation of 1, 2 and 3 above.
5. Repeal all Open Carry provisions in every state and territory of the United States. Make Open Carry activities illegal, with confiscation of any firearm used in such actions.
6. Require all current Concealed Carry permit holders in each state and territory comply with items 1, 2 and 3 before renewal of any existing Permit.
7. Permanently prohibit the manufacture or personal ownership of any firearm designed and produced for Military use anywhere in the world; unless such arms have been permanently converted by removal of the firing mechanism by an authorized Firearms Safety and Handling Facility, including a record of the conversion into the Federal Background Check database (for purposes of allowing collectors to retain their property).
8. Limit all magazines, clips or other semi-automatic loading of ammunition to a maximum of 10 bullets/shots. Make modification of any firearm to increase capacity past 10 bullets/shots a federal offense, with a minimum ten years incarceration for each charge.
9. Following a change in the National Firearms Act of 1934, removing penalties for registration of firearms formerly held in a non-registered status; require all firearms (every make and caliber) be registered with the Secretary of the Treasury including those currently owned and all other firearms bought or traded after the date of enactment of such legislation. The purpose of such registration is for the Public Good, to enable Law Enforcement to determine ownership of any firearm used in an illegal fashion or in conjunction with any other illegal activity.
These regulations will not end gun violence in America, but they would surely reduce it.
The modern US Supreme Court and its findings on firearms contradicts nearly 200 years of stare decisis on firearms ownership. Before District of Columbia v. Heller, 554 U.S. 570 (2008) the SCOTUS found many times that personal ownership of firearms was limited by regulation.
1934 — National Firearms Act of 1934
The NFA was originally enacted in 1934. Similar to the current NFA, the original Act imposed a tax on the making and transfer of firearms defined by the Act, as well as a special (occupational) tax on persons and entities engaged in the business of importing, manufacturing, and dealing in NFA firearms. The law also required the registration of all NFA firearms with the Secretary of the Treasury. Firearms subject to the 1934 Act included shotguns and rifles having barrels less than 18 inches in length, certain firearms described as “any other weapons,” machine-guns, and firearm mufflers and silencers.
While the NFA was enacted by Congress as an exercise of its authority to tax, the NFA had an underlying purpose unrelated to revenue collection. As the legislative history of the law discloses, its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. Congress found these firearms to pose a significant crime problem because of their frequent use in crime, particularly the gangland crimes of that era such as the St. Valentine’s Day Massacre. The $200 making and transfer taxes on most NFA firearms were considered quite severe and adequate to carry out Congress’ purpose to discourage or eliminate transactions in these firearms. The $200 tax has not changed since 1934.
As structured in 1934, the NFA imposed a duty on persons transferring NFA firearms, as well as mere possessors of unregistered firearms, to register them with the Secretary of the Treasury. If the possessor of an unregistered firearm applied to register the firearm as required by the NFA, the Treasury Department could supply information to State authorities about the registrant’s possession of the firearm. State authorities could then use the information to prosecute the person whose possession violated State laws. For these reasons, the Supreme Court in 1968 held in the Haynes case that a person prosecuted for possessing an unregistered NFA firearm had a valid defense to the prosecution — the registration requirement imposed on the possessor of an unregistered firearm violated the possessor’s privilege from self-incrimination under the Fifth Amendment of the U.S. Constitution. The Haynes decision made the 1934 Act virtually unenforceable.
For nearly 50 years, that Law stood. In 1968, Title II of the NFA was enacted, repealing the requirement of registration of firearms due to a SCOTUS decision in Haynes.
Title II amended the NFA to cure the constitutional flaw pointed out in Haynes. First, the requirement for possessors of unregistered firearms to register was removed. Indeed, under the amended law, there is no mechanism for a possessor to register an unregistered NFA firearm already possessed by the person. Second, a provision was added to the law prohibiting the use of any information from an NFA application or registration as evidence against the person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration. In 1971, the Supreme Court reexamined the NFA in the Freed case and found that the 1968 amendments cured the constitutional defect in the original NFA.
Title II also amended the NFA definitions of “firearm” by adding “destructive devices” and expanding the definition of “machine-gun.”
Wouldn’t it have been more reasonable to amend the original Act to remove the penalty for registering a previously unregistered firearm? Then the ability to continue to require that all firearm owners register newly acquired firearms would have been held to be Constitutional. Because regardless of the end result of Haynes, in that finding the Court still HELD:
1. Congress, subject to constitutional limitations, has authority to regulate the manufacture, transfer, and possession of firearms, and may tax unlawful activities. Pp. 390 U. S. 90, 390 U. S. 98.
There is also the issue of the General Welfare to consider, in relation to Firearms ownership and public gun violence. Whenever any Right becomes entangled in contretemps with another Right, there is a weighing of the value of each and a decision of which Right must prevail. In this case, the Right of the people to go about their daily lives without fear of being deprived of Life should and must be found to prevail over the Right of individuals to own and use firearms.
I hope that each of you joins me in asking your own US Rep, US Senators and your Statehouse representation to bring forth legislation to enact these suggested regulations into Law.