The New York Daily News has a controversial front page this morning blasting politicians and others who are offering prayers while opposing to take steps to curtail gun access in this country in the wake of the latest massacre in California. It is the same message sent by President Barack Obama who appears ready to use executive authority to restrict gun sales at gun shows. The problem with calls for such action is that Congress has declined to order such changes — raising yet another potential conflict over executive overreach in our system. Moreover, the right to own firearms is now recognized as an individual right under the Second Amendment, limiting the extent to which gun ownership can be meaningfully curtailed. Absent a constitutional amendment, many of the calls for banning gun ownership would fail as unconstitutional.
The action to be taken the Administration seems somewhat artificial as a response to the shooting in san Bernadino. Officials are saying that President Obama will close the so-called gun show loophole that allows people to buy guns each year without a background check. However, the police have confirmed that at least two of the weapons used by Syed Farook, 28, and his wife Tashfeen Malik, 27, were lawfully purchased. Thus, the response is like denouncing forest fires by passing a new law combating kitchen fires. It reminds one of the old story about a man who comes upon another man in the dark on his knees looking for something under a street lamp. “What did you lose?” he asked the stranger. “My wedding ring,” he answered. Sympathetic, the man joined the stranger on his knees and looked for almost an hour until he asked if the man was sure that he dropped it here. “Oh, no,” the stranger admitted, “I lost it across the street but the light is better here.”
This “loophole” is originally a creature of legislation not regulation. It has long been debated in Congress. Bills to close the loophole were introduced in seven consecutive Congresses. This legislation references gaps in legislation that goes back to the 1968 Gun Control Act, which GCA mandated Federal Firearms Licenses for those “engaged in the business” of selling firearms. Private individuals were not covered, a major political accommodation. Then there was the 1986, Firearm Owners Protection Act (FOPA), which relaxed controls of the Gun Control Act. Then in 1993, Congress enacted the Brady Handgun Violence Prevention Act, amending the Gun Control Act of 1968 to institute federal background checks on all firearm purchasers who buy from federally licensed dealers. The silence on private firearms transactions would seem a direct outgrowth of the past accommodation given private owners/sellers. The Administration can certainly argue that the silence created an ambiguity warranted deference to the federal agencies, but the record of legislation — including the repeated requests to close the gap — belie any claim of this was truly an omission or oversight of Congress.
There are certainly many good arguments to support closing this loophole, but it is something that must be done in conjunction with Congress. Indeed, President Obama has formally asked for such legislation and failed to succeed in Congress. That was three years ago. As with health care, immigration, and other fields, the President seems intent now on “going it alone” after Congress refused to give him what he demands. The question is not really one about gun control but constitutional authority. No president can become a government unto himself. He has to show leadership and either forge a consensus in Congress or seek to change the make up of Congress. There is no third option — no license to go it alone in our system.
Federal law requires gun stores and other regular sellers to get federal licenses and conduct background checks. This did not stop Farook or other criminals. However, it is certainly true that thousands of guns are sold in those private sales every year and gun shows create a massive loophole in that system. There is a legitimate debate to occur here, but the place for that debate is in Congress.
Whatever measures are sought in the aftermath of this shooting, one has to keep in mind that there are limits on the range of options after the rulings in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010). Last year, United States District Court Judge Frederick Scullin Jr. handed down a ruling in Palmer v. District of Columbia that overturned the city’s total ban on residents on carrying firearms outside their home. The Court has signaled that it will accept reasonable limitations on gun ownership, but has remained unclear on the scope of such laws. What is clear is that bans on gun ownership (which many are calling for this month) would not be seriously considered in light of Heller. That does not mean that certain types of weapons might not be limited or curtailed but the suggestion that we can “remove guns from society” is fanciful absent a constitutional amendment.
Closing the gun show loophole would seem likely to pass constitutional muster under the guidelines of Heller, so long as it is drafted narrowly and carefully. However, if the President again takes unilateral action, it will add a separation of powers challenge to the Second Amendment challenge. There is no evidence of intent to give the President such authority. This has long been a divine issue and Congress clearly considered closing this loophole and declined to do so. If legislation were written, it would need to be evaluated on how to define certain gun sales and private transactions. That is the type of balancing and tailoring that occurs in congressional committee.
There is a great desire to act in the wake of this tragedy, but our actions must occur within a carefully calibrated system established by the Framers under the separation of powers.
Source: LA Times
Mr. Turley,
I live in a state that does not require a background check for a private, in-state sale of a firearm. However, were I to make such a sale, I would still plunk down the two sawbucks at a nearby FFL to run a background check on the purchaser. Why? Because it’s a federal felony to knowingly transfer a firearm to a prohibited person. This massive loophole may be somewhat smaller than most people assume.
This meant that the murderers were armed and the victims, good citizens all, I’m sure, were dependent upon the police to save them.
This is exactly the real problem. We are no longer a country of small communities with close and accessible police forces. Even in a suburb like San Bernardino, the police cannot be everywhere at all times and there is ALWAYS going to be a lag time in response. They do their best, but they are not superman nor do they have powers of teleportation to be instantaneously available.
The reality is that you are going to be left to your own devices for some time, until they can show up. Unfortunately, that time can be the difference between life and death. They are minutes away when seconds count.
Soooo…..you had better be prepared to defend yourself in an emergency and not rely solely on the police or others to come to your immediate aid.
As I’ve relayed, we live in a very rural area. The response time from the sheriff is, at best a half hour and is normally an hour or more. They can’t help it. The area is too big for the few patrolling SUVs, approximately 1000 to 2000 square miles for just a few deputies. We are scattered and it can be quite a distance between houses much less to the sheriff substation. The eastern edge of our county abuts against another county. If there is a crime in the intersection they have to travel over 95 miles from their county seat and it takes at least 2 to 3 hours because of the winding, mountains terrain. (Look…I’m not complaining. We like it this way and expect that this is the case. I’m just reporting the facts for those who can’t imagine anything other than a dense urban environment or immediate access to services.)
We are on our own and everyone here knows it. Therefore, people take the appropriate precautions and are WELL prepared.
The people in the cities and suburbs need to wake up and realize that the government is NOT here to help you. They WANT to make you even more helpless and dependent. Obama and the liberal/progressives fear the citizenry more than they fear terrorism and they want to make us targets.
This is why we have the 2nd Amendment and don’t ever forget it.
@ninianpeckitt
You wrote: Likewise, state constitutions in place in 1789 consistently used the phrase “bear arms” in military contexts and no other.
False. Vermont has had a RKBA clause in its constitution since twelve years before the federal bill of rights, when Vermont was an independent republic. It specifically references both defense of the state and self-defense.
In any case, we don’t live under the constitutions of 1789. We live under those constitutions as subsequently amended and interpreted by the courts. Of the 44 state constitutions that have a RKBA clause, 22 specifically mention self-defense. Several other states have case law that supports the idea that RKBA includes self-defense by individuals.
I suggest you read Blackstone’s Commentaries. Our bill of rights is based on and extends the traditional liberties of English freemen as developed over the centuries following Magna Carta. That includes the right to keep and bear arms, both for the defense of the island against invasion and for defense of self and property. The historical irony is that the British have now largely disarmed themselves by making it illegal to carry anything for self-defense, even pepper spray.
The argument that the use of the words “the people” indicates only a collective right is logically inconsistent. The fourth amendment also uses those words and everybody recognizes that the rights secured therein are individual.
Nick,
Don’t forget we are “progressing” as a society, so those quaint notions of natural rights are meaningless in a civil society.
Saint Thomas Aquinas has written eloquently on the rights of people to defend themselves.
Modern Miner, France has some of the toughest gun laws in the world. Parisians, like these Californians, were unarmed fish in a barrel.
Accounts of the attack in San Bernardino include descriptions like:
* people running and hiding in closets
* partygoers texting and calling loved ones on their cell phones leaving messages of “this is the end”
* folks tripping over each other running from the gunfire
California has the strictest gun laws in the U.S. and this is the result. The murderers didn’t follow the laws, the victims did. This meant that the murderers were armed and the victims, good citizens all, I’m sure, were dependent upon the police to save them.
The fundamental human right to defend oneself had been transferred from the individual to the state. Just once I’d like to read a description like, “I crouched by the doorway to my office with my pistol and thought, ‘This is as far as you’re going to get.'”
I don’t favor a world where the meek, peaceful, or law abiding are at the mercy of the strong, violent. or criminal. I don’t favor a world of inequality on such a grand scale. Helplessness and hope for an external savior isn’t a good plan, our elected representatives should know that.
I would be interested to know if anyone here believes it is NOT the right of the People to “alter or abolish” our existing government when they destroy the means to secure our unalienable rights.
The black Police Chief in Detroit said after this attack that armed citizens will help thwart attacks like this. I think he’s off the WH Christmas card list now.
It’s not radical Islam that’s the problem, it seem to be Islam in general. The Muslims are closest to the terrorist problem therefore they should be first in line to see something and say something to help solve the problem before they get sucked into being blamed just for being Muslims.
As far as gun control goes, all it takes is practice practice practice , see you at the range
If this study had not been published in the American Journal of Political Science, I would probably not have posted it.
http://popularliberty.com/12233/new-study-finds-conspiracy-theorists-politically-smarter-your-average-joe
This did not stop Farook or other criminals. However, it is certainly true that thousands of guns are sold in those private sales every year
All the laws in the world are not going to stop criminals from stealing guns and selling them to others in the underground economy. All the laws in the world are not going to stop Uncle Billybob from gifting his treasured boyhood rifle to his nephew. Won’t stop the sale or trade or other transfer from one friend to another.
The laws are intended to disarm legal and law abiding people and to make us defenseless against terrorism, against criminals (who WILL continue to be armed) and especially defensless against our omnipresent repressive government.
Obama is a lawless President and he is exactly the reason that the second amendment was created.
I’m just waiting for Obama to say “Radical Islamic Terrorist” regarding this act of terrorism by a radical Muslim.
The MSM constrains conservative politicians on making unconstitutional overreaches. The MSM has enabled this President. Of course, he is their President, they helped elect him.
Since the number of people killed or injured in auto accidents far exceeds the number of deaths and injuries caused by firearms, let’s ban cars.
pools kill about 100 children each year, bath tubs another 50, kids doing stupid stuff causes a bunch of injuries and domestic violence probably accounts for most of the murders so lets ban marriage. Make all the women and children live in a socialized centrally planned community for free and men can visit when children are needed or they want sex. The communists utopia.
What is not being challenged is my unregulated right to arm bears, for which I am eternally grateful.
Pernicious pacifist: I agree, but that fascist imperialism for ya.
Hear! Hear! H Skip Robinson!
Four comments:
1) It seems to me that the incident in San Bernardino’s Inland Regional Center calls for more firearms, not fewer. If someone in that building had been armed and had the courage and skill, maybe a few less of the dead and injured might not be.
2) increasing restrictions on gun ownership will not stop psychopathic acts of violence.
3) As California is about to do in circumventing the 2nd Amendment mandate, if I had to guess, Congress will attempt to restrict ammunition under its overblown power under Commerce Clause.
4) Like that of the Commerce Clause, the Executive’s power needs to be curtailed. The President must carry out the law, not write it.
This has nothing to do with Islam. It has to do with decades of our deceitful, lying, corrupt, greedy foreign policy and dirty dealings regarding the Middle East and Israel. None of what is happening should be in any way surprising. We are reaping what we have sowed. Karma is a bitch.
I found an interesting link to the interpretation of Constitutional Amendment’s and the Second Amendment in particular.
http://www.constitution.org/2ll/2ndschol/103wha.htm
The author makes some interesting observations and indicates that the second amendment speaks of a right of “the people” collectively rather than a right of “persons” individually. And it uses a distinctly military phrase: “bear arms.” A deer hunter or target shooter carries a gun but does not, strictly speaking, bear arms. The military connotation was even more obvious in an earlier draft of the amendment, which contained additional language that “no one religiously scrupulous of bearing arms shall be compelled to render military service in person.” Even in the final version, note how the military phrase “bear arms” is sandwiched between a clause that talks about the “militia” and a clause (the Third Amendment) that regulates the quartering of “soldiers” in times of “war” and “peace.” Likewise, state constitutions in place in 1789 consistently used the phrase “bear arms” in military contexts and no other.
The amendment’s syntax seems odd only because modern readers persistently misread the words “militia” and “people,” imposing twentieth-century assumptions on an eighteenth-century text. The key subject-nouns were simply different ways of saying the same thing: at the Founding, the militia was the people and the people were the militia. Indeed, the earlier draft of the amendment linked the two clauses with linchpin language speaking of “a well regulated militia, composed of the body of the people.” The linchpin was later pulled out as clumsy and redundant. A modern translation of the amendment might thus be: “An armed and militarily trained citizenry being conducive to freedom, the right of the electorate to organize itself militarily shall not be infringed.”
But, when the Constitution speaks of “the people” rather than “persons,” the collective connotation is primary. “We the People” in the preamble do ordain and establish the Constitution as public citizens meeting together in conventions and acting in concert, not as private individuals pursuing our respective hobbies. The only other reference to “the people” in the Philadelphia Constitution of 1787 appears a sentence away from the preamble, and here, too, the meaning is public and political, not private and individualistic. Every two years, “the people”–that is, the voters–elect the House. To see the key distinction another way, recall that women in 1787 had the rights of “persons” (such as freedom to worship and protections of privacy in their homes) but did not directly participate in the acts of “the people”–they did not vote in constitutional conventions or for Congress, nor were they part of the militia/people at the heart of the Second Amendment.
So the unregulated right of citizens to bear arms outwith an organised malitia does not seem to be supported by the Constitution and I would anticipate that this will be examined carefully by those wanting stricter control of guns. It this is not possible and if the majority of Americans want gun control, the Constitution will be amended yet again to realise this purpose. One thing is for sure, current attitudes towards guns will continue to he challenged.
ninian – the Constitution of the Great State of Arizona makes all males ages 18 -50 members of the state militia.