An Exercise in Law Making

SayUncle asks us what gun controls we’re willing to tolerate:

So, here’s a fun game for you pro-gun folks: Due to some bizarre set of circumstances, congress decides that all federal gun laws need to be re-written and revised. You are elected/selected/appointed as the negotiator for pro-gun folks. And there will be one negotiator for the anti-gun folks. All federal laws will be wiped clean and you two will negotiate what the new gun laws will be. There will have to be compromise on both sides. So, what will you concede? And what is nonnegotiable?

Whoever says that their position will merely consist of shall not be infringed, step to the front of the bus and exit please. Because that won’t work. We will have gun laws. As much as I admire your consistency, it’s not feasible. Deal with it.

He’s right about the fact that we’re always going to have gun laws. So here’s my take:

I am willing to accept a constitutional regime that recognizes a right for civilians to keep and bear most small arms and light weapons. No right in the constitution has ever been construed to be absolute, but the right does place the burden on the state to prove that regulation is needed, and is non-infringing. Many of our federal and state gun laws would fail this test.

I am willing to accept that people convicted of crimes of violence can have, as part of their sentence, their right to keep and bear arms removed. People who are convicted of crimes can have a lot of their constitutional rights removed. We generally accept that in our legal tradition. I don’t like some of the current laws that turn one into a prohibited person, and keep you one long after you’ve demonstrated to society you’ve reformed yourself, but if you held a gun to someone’s head, and demanded money, or put your wife in the hospital, sorry, but I have no problems with not being able to have a gun as part of your sentence. I am not willing accept anything short of a conviction in this matter, and only for violent felonies.

I am willing to accept state and appropriate federal regulation of importation, manufacture and sale. This would allow background checks at point of sale, etc. I do think people ought to be permitted to purchase a firearm from a dealer in any state. I am not willing to accept waiting periods. Regulation is fine, as long as a law abiding citizen with a clean criminal record is allowed to walk into a gun store, and walk out with his purchase. I do believe people should be able to mail order guns, but federal requirements on background checks and paperwork can apply here, as well as delivery restrictions to be obeyed by common carriers (e.g., they can’t leave it on your doorstep, and you have to show you are who you say you are, by showing ID).

I am willing to accept state and local regulations on explosive ordnance such as grenades, rockets, and other ordnance that would still qualify as light weapons, provided the regulations is narrowly tailored in regards to keeping dense residential areas safe. Sorry folks, having a crate of grenades in your closet is a hazard to your community, and to anyone who tries to put out a house fire, independent of how responsible and law abiding you are as a person. State and local government can have the power to regulate this accordingly. If you have enough land, or build an acceptable armory to house your collection, I have no problem with this, but your right to bear arms doesn’t extend to putting your community, or the communities firefighters, in danger.

I am willing to accept state and appropriate federal restrictions on heavy, crew served ordnance. This could apply to some heavy machine guns, artillery, MANPADs, anti-tank rockets, etc. Ideally I would like to keep ownership of these possible if you’re willing to go through the process, have enough land, and a safe place to house and shoot, but I don’t think even 10% of the population would be willing to go that far.

I would be willing to accept most provisions of the NFA, as currently enacted, except for the Hughes Amendment. Though, I do believe regulating all but the heaviest machine guns (think 30mm cannon, not Ma Deuce) is inconsistent with my view that the constitution protects un-infringed ownership of personal arms. Ideally I would like to see assault rifles (real ones) and such treated as any other firearm, but I don’t know if even 20% of the population would be willing to go for it.

I would not accept any form of licensing as a prerequisite to gun ownership. I would accept that state governments have the power to regulate the wearing of arms, but are not permitted to license bearing of arms in general . Bearing of arms is constitutionally protected, with the states retaining the power to regulate how arms may be worn. Open carry would have to be legal in every state. And by legal, I don’t mean they can drag you in for disorderly conduct, or crap like that. I mean legal as in, you can do it, and they can’t say crap about it. I would not be willing to accept cars as being automatic concealment. I would push for not being a prohibited person as being an affirmative defense against the charge of carrying a concealed weapon.

I don’t think arms just means firearms. I am not willing to accept any restrictions on keeping and bearing knives, clubs, swords, tasers, defensive sprays, stun guns, air guns, bows, slings, or other personal weapon.

So there is my answer. Don’t get me wrong, I generally think arms control is next to useless, but Uncle is correct that we’ll always have it. That’s the compromise with the rest of the population, who doesn’t necessarily see things the way I do, that I’d be willing to live with. When you boil it down, I’m willing to live with a lot of our guns laws. I want to see the Hughes Amendment gone, some of the importation restrictions of GCA 68 gone, laws prohibiting some form of arms bearing in states gone, state machine gun bans gone, Lautenberg gone, state licensing gone, “assault weapons” bans gone, and I’d like the type 3 (C&R) FFL to apply to everything. Do those, my passion for getting rid of the rest starts to trail off.

11 thoughts on “An Exercise in Law Making”

  1. I think ‘small arms’ is implicit in ‘keep and bear arms’ and I’m willing to see restrictions on crew served weapons, as much as I love them.

    On explosives, RPGs or hand grenades ought to be governed by the same laws we traditionally had for dynamite. You have to keep it in a bunker away from other people for safety.

    An instant background check is reasonable.

    Requiring someone to be an adult to purchase is reasonable.

    I think any other laws are simply cosmetic feel good measures that don’t increase anyones safety and should be dropped.

  2. Small Arms were *not* implied at the time – private ownership of crew-served weaponry was more or less intended by the Framers – see the Marque&Reprisal section of the constitution, and ask yourself if an effective warship of the time could have been fitted out without crew-served weaponry?

  3. The exercise was what gun control I can live with, not what I’d ideally like. If Congress tomorrow said it was OK for me to have my own attack sub, I’d think it was cool. But that’s not going to happen. In constructing the meaning of the second amendment though the courts, there will be limits placed, and it’s a question of where we can reasonably expect the line to be drawn.

    In your specific instance though, were people allowed to operate private warships without a letter of Marque & Reprisal? I was of the understanding that without the letter, you would have been considered a pirate. So in that sense, you needed Congressional authorization to arm and operate a warship. That would seem to indicate it wouldn’t be a right as the founders understood it.

    Though I fully accept I might be wrong here.

    I know ownership of artillery was allowed at the time of the founding. Again, I’d have little problem with this. But in colonial times could you keep a barrel of powder in your home? Or did you have to store it at the town armory? I know towns had armories. I’m just wondering what the regulations were.

    Does anyone know?

  4. Ownership was permitted of crew-served weapons on a merchant vessel – the letters of Marque and Reprisal were to permit you to act as a warship; but any sensible long-distance merchant vessel of the period carried a certain number of cannon; whether they would be well-handled would be a good question.

    That aside – while I’m working on my own blog post on the subject, I more or less agree with your points. I’ll link to the post when I’m done (and also trackback at Uncle’s)

  5. There’s probably a few things in there if i didn’t get I wouldn’t be too entirely distraught. It appears the courts aren’t going to allow for the second amendment to cover machine guns. That sucks, because as a collector, I wouldn’t mind having a few, but as that technology has developed, it would seem most of the populations believes machine guns are different, and outside of second amendment protections.

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