Monday, February 23

Protecting Children or Endangering our Constitution?

Last week I outlined the provisions of H.R. 45, a bill that will significantly rewrite gun-ownership laws in America. The bill claims its purpose is "to protect the public against the unreasonable risk of injury and death associated with the unrecorded sale or transfer of firearms to criminals and youth."

Sounds noble, right? We all want to protect our children from gun accidents and violence, but rather than providing a solution that will hit at the heart of the problem, another legislator wants to put even more limitations on our second amendment.

There are a lot of factors that work together to bring a person to the point they pick up a gun and take the life of another. Whether they actually have a gun is usually not the tipping point to that decision.

These types of bills are always put forth as a means to curbing violence, in this case, violence against children. The problem is that it is the ordinary, law-abiding citizen who is punished and not the thugs who buy their guns in back alleys and out of trunks of other dangerous thugs. If you're a thug, you are more than likely aren't going to a gun shop to obtain a gun.

So the provisions in this bill become a infringement on the ordinary citizen's privacy (mental records released) and makes it something that may not be accessible to all citizens (associated costs).

The most disturbing provision in this bill is the one that takes away your right to keep a gun in your home to protect your family and your property. While I have no desire to keep a gun in my home, it is a right we have under the second amendment. Which begs the question, how can you have this bill as law and still keep the second amendment?

I have a hard time believing H.R. 45 will ever make it out of committee in this form. But it should concern us that our constitution and one of our basic rights is being threatened. We'll keep our eyes on this and see where it goes.

What do you think?

23 comments:

Melissa said...

I agree 100% that criminals who use guns for violence are most likely not acquiring them through conventional or legal means. The bill sounds good on paper, but it is a false re-assurance and compromises the 2nd amendment. I'm not a big fan of guns, but I also believe people have the right to protect themselves.

Livin' Life said...

I struggle with this topic greatly. I come from an area where literally I knew guys who had stock piles of weaponry in their attics and I don't mean just hunting paraphernalia. We actually go head to head in my house because my husband is a hunter and owns 3 guns. I tend to fall on the side of regulations with guns. I need to read more of this legislation but I wanted to put my neck out and say something needs to be done about gun sales. I have gone to many times to gun stores and shows and seen how easily people can get around the laws to purchase guns without going to a black market. I don't think the founding fathers had semi-automatics in mind when they wrote the second amendment.

Granted the ammo and type of guns found on the streets in gang warfare are of a more military type. I just heard the other day the police vests aren't helping any more because they are using armor piercing bullets at times but something does need to be done. Is this particular legislation it I don't know but I believe we need stricter gun laws.

Jeff said...

I don't know enough about this particular piece of legislation to have an opinion, but I believe law enforcement needs more tools to make it more difficult for weapons to get in the wrong hands. I'm also not necessarily persuaded that the second amendment was intended to be an unlimited personal right, giving ordinary citizens the right to own any type of weapon.

happyathome said...

I do not think this bill will protect our children from guns and violence, but just add more paperwork and cost to someone who wants to buy a gun the honest way. Criminals generally do not buy guns in this manner, as stated by also in this post.
I do come from a family who owns guns for hunting and sporting clays, all have gone to the safety courses and are responsible gun owners. None of the guns are automatic weapons, which is the issue all together. I do think law inforcement needs needs the firepower but general public does not.

Jeff said...

Just to clarify, the purpose of the bill, as quoted here, is to protect the public from risks associated with the unrecorded sale or transfer of guns to criminals and youth. It's not just about protecting children. It's about trying to protect the public from unrecorded gun transfers.

Jeff said...

Natalie,
Regarding your commentary in this post, what would you consider "a solution that will hit at the heart of the problem" when it comes to gun violence. Do you have a solution in mind?

PhillipK said...

I do not support this bill. In response to the comments I make the following points:

1.) A firearm is not an evil in itself. It is simply a tool and only as dangerous as the person using it. If a firearm is laid on the ground and no one ever picked it up and fired it, it would not hurt anyone. Given - A firearm is a tool for the purpose of killing something. However - it is a necessary tool. Additionally, a "semi-automatic" firearm is simply a form of firearm action in which one does not have to work the action manually between rounds. It still only fires one round per squeeze of the trigger and does not have any more dangerous connotation than other firearms. Many sports and hunting rifles currently have a semi-automatic action. It is much different than a fully automatic firearm that can spray hundreds of rounds per minute. Fully automatic firearms are already illegal because of the connotation they have for the potential of mass killing in rapid form. However, they are still only as dangerous as the person willing to fire them.

2.) Our forefathers did not have mass meat processing and had to hunt in order to obtain meat to provide for them and their families. They also did not have a standing army in the form you think of today. When a foreign or domestic invader attacked - we were called on as private citizens to defend our soil with our own firearms. We did not depend on a sequestered and separate volunteer force as we do today to provide those firearms and fight for us. Defending ones home and person against criminals however is just as much a need today as it was during the time the second amendment was written. To say our forefathers "did not have semi-automatics in mind” is a moot point since the action was not even invented yet. In fact there was not any difference between firearms used for war, defense, or simply hunting and no restrictions were placed on the development of better technology for them.

Jeff said...

PhillipK,

Don't your points #1 and #2 contradict each other? Or are you saying that a person does not need a fully automatic weapon to defend a home/person so, therefore, the government can restrict those weapons even though the second amendment makes no distinction between simi- and fully-automatic weapons?

David said...

This bill is another attempt at the eventual banning of all firearms in the US. Ask Australia how their gun ban is working (violent crime sky-rocketed after all guns were picked up). As has been written, the bad guys are NOT going to register nor turn-in their guns at the request of the government...the Representative from Chicago, is actually a convicted felon (convicted of possessing illegal firearms...hummm??) and he cannot legally own a gun anyway (Brady Law). If passed, what are you going to do when a bad guy breaks into your house? There is a saying in the self-protection business: "When seconds count for your survival, the Police are only minutes away". Keep this saying in mind...

Jeff said...

Natalie,

Regarding the issues you cite as problems with the bill:

1. Gun in the Home: Which provision of the bill takes away your right to keep a gun in your home? I don't see it.

2. Associated costs: The bill caps the license fee at $25.

3. Mental Health Records: I could be wrong, but I thought it was already illegal for someone with mental health problems to own a gun and that a check of mental health records was already part of the background check. Is that not correct?

Jeff said...

David,
Is it the provision requiring that the gun be stored safely that you disagree with?

PhillipK said...

Jeff,

No - the points do not contradict. I did not say I supported the restriction of automatic firearms. I only stated the existing illegality and the reasoning used by the lawmakers for the existing law.

Let me ask you this based on your other comments to David and Natalie: Do you really think that restricting and licensing law-abiding firearm owners will have any effect on criminals whom do not abide by our laws in the first place? Or do you simply feel that owning a firearm will cause law-abiding citizens to become criminals in the right circumstances?

I'm sure you also feel we are endangering children by not locking away our guns in a vault. The real endangerment is ignorance. If you lock away a firearm and do not educate your children about the dangers of them or if you treat the firearm like it should be hidden away it only becomes an enticement to a child. My children are all very knowledgeable about my firearms and understand their dangers and how to handle them safely. I take them to the range with me frequently so they do not look on my firearms with that mysterious enticement they have when not shared or talked about. They know - thanks to my teaching - that the movies do not portray firearms correctly. At the same time, they're use is not taken so lightly that I do not restrict the access to them. I do use quick access combination safes that lock them from easy access to anyone, but allows me quick access if I am forced to use it to defend my home.

Jeff said...

PhillipK,

So, if I understand correctly, you do not support restrictions on automatic weapons, which means the distinction between automatic and semi-automatic is a moot point, at least with respect to your view of what the law should be. What about a granade launcher?

The point of these laws (again, without making any conclusions about this particular law) is not to suddenly create law-abiding criminals, but to make it more difficult for criminals to have easy access to guns. There will always be black markets, just like there are black markets for prescription drugs, but that doesn't mean we should abandon efforts to regulate the distribution of prescription drugs. As guns enter the stream of commerce, it seems reasonable to me, just like with prescription drugs, to have measures in place that try to prevent those guns, as much as possible, from entering the black market. The question is whether these kinds of measures are effective enough to make it worthwhile. I'm not sure if we know enough to reach a conclusion. Regardless, under your application of the second amendment, none of this matters. Even if we could keep guns off the black market, such measures would be unconstitutional to the extent they regulate lawful gun ownership.

With respect to you and your kids, it's great that you take the time and effort to teach them well. If only all parents behaved as responsibly.

Melissa said...

It's okay. President Obama will just wave his magic wand and then POOF! All the bad guys will go away.

Sorry, Nat. I absolutely know that is the kind of un-intelligent, non-thought provoking kind of comment that slobbering idiots leave.

But, it still made me smile.

Jeff said...

Also, David, if you do a little research you'll find that your claim about violent crime in Australia sky rocketing "after all guns were picked up" (I assume you don't mean that literally), has some serious statistical problems. I wouldn't hang too much of your argument on the claim (made popular by gun advocates), if I were you.

PhillipK said...

Jeff,

Sorry, but you're slippery slope again lacks informed logic. "Grenade Launchers" are illegal to posses for a very different reason in that they contain explosives that cannot be stored safely without special training, and must be regularly inspected to ensure stability. Problems that simple cartridge ammunition does not have to nearly the extent that high explosives do. If you're speaking purely in the context of potentially of someone defending themselves or they're rights (Which IS what the framers of our constitution had in mind. Protection not just from crime, but from government gone bad as well!), then I would be all for it!

You also contend that our laws currently make it too easy for criminals to own firearms. That is also a incorrect. Currently, anyone with a criminal record above the level of civil infractions is restricted from purchasing a firearm, and it is not possible to LEGALLY purchase a firearm if you have committed a felony. Private owners, Gun shows, and dealers must abide by a background check of the buyer to sell a firearm. If they are not following that now, they are already doing something illegal, and it falls to enforcement. Adding additional restrictions on legal gun owners will not change this fact.

You do have a point that gun owners all should have the responsibility to teach they’re children and not all of them do properly. Parents are liable for mistakes made by not teaching their children properly. That’s why the NRA instituted the “Eddy Eagle” program for schools. That’s why I am a home firearm and Hunter safety instructor. We all need to help out to inform our youth. If you think about it – this was not an issue during the time of our forefathers because teaching firearm safety and use in the household was just something that almost every family did. It was a simple necessity. It is today’s culture that demonizes firearms that creates the ignorance that leads to children’s accidental deaths due to firearms. School incidents such as Columbine are difficult emotionally, but it was a criminal, irresponsible person that allowed them access to firearms.

Jeff said...

PhillipK,

Forgive me, but I'm not following you. If you take the position (which I think you do) that the second amendment is an absolute unlimited personal right, then there is no slope, slippery or otherwise. Distinctions between automatic, semi-automatic, granade launchers, or any other type of arms are irrelevant. The second amendment protects everything.

On the other hand, if we apply a strict constructionist interpretation of the second amendment, we could just as easily argue that the word "arms" in the second amendment carries the meaning understood by the original drafters and does not include future technologies. In other words, the definition of "arms" is not a living definition, expanding to include future applications. In contract law, where there is a grant of rights to certain technology, we typically limit the grant to the technology contemplated by the parties at the time of the agreement, unless the parties expressly specify that it includes any and all technologies now known or hereafter discovered or developed. I dont' necessarily believe this argument, but it seems just as viable as holding that "arms" includes any type of future weaponry.

Regarding the second party about our laws making it too easy for criminals to own firearms, you misunderstand me. I agree, that the issue is really enforcement. However, that's what I consider reasonable license requirements to be--a tool for enforcing lawful ownership of firearms. You disagree?

PhillipK said...

Jeff,

First - you misinterpret my use of slippery-slope as my argument, when it is a device you used in yours. You are correct in my statement that the second amendment was originally framed as an unlimited, unrestricted, right of the people.

That being said, you apply an interpretation of the 2nd amendment using a strict use of the words in the bill of rights, and ignore the intent of the drafters who made their intent very clear in several publications. Have you read any of them? Let me enlighten you:

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.” James Madison - The Federalist #46.

“If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.” Alexander Hamilton – The Federalist #28.

“The beauty of the Second Amendment is that it will not be needed until they try to take it.” - Thomas Jefferson

“The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; “
-Thomas Jefferson to John Cartwright, 1824.

Meaning of the Militia: "[The] governor [is] constitutionally the commander of the militia of the State, that is to say, of every man in it able to bear arms." -Thomas Jefferson to A. L. C. Destutt de Tracy, 1811

I of course have several more quotes and references if you wish. I invite you to look them up yourself. You state that “reasonable licensing” is a tool for law enforcement. Do you really think that someone with criminal intent for his firearm will submit to this “reasonable licensing”? I also submit that this reasonable licensing you speak of can be used against law-abiding people by a government that decides that its people should no longer be armed. Then, that same government can do anything they want to its people without fear of reprisal. That is the true reason that the second amendment is an unlimited right. History has proven that the potential of a government to oppress and enslave it’s people is always possible. The architects of our freedom knew this fact; otherwise we would not be enjoying the rights we have today to offer our dissenting opinions on blogs.

I submit one more quote for your consideration: "Laws that forbid the carrying of arms . . . disarm only those who are neither inclined nor determined to commit crimes . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."
--Thomas Jefferson, quoting Cesare Beccaria in On Crimes and Punishment (1764).

Natalie said...

First, let me say that I'm loving Phillip K!

Jeff: As stated in Sec 29(c) of the bill, "the purpose of the bill is to restrict the availability of firearms to criminals, youth, and other persons prohibited by Federal law from receiving firearms."

Under the current law, we should already be doing that. It's already illegal for anyone under the age of 18 to purchase a gun and it's also illegal for anyone with a record to obtain a gun. If gun show owners and others who sell guns would do the currently required background checks (that do not include mental health records) and "card" minors, then we are already doing all that we can on that front. It all becomes a matter of enforcement.

And, again, your common criminal is not purchasing his guns through the normal means. Nor are children.

As far as costs, it's $25 for the license and you also have to produce a certificate that you've completed a safety course and test...no doubt another cost. In this horrible, terrible, good for nothing crisis of an economy, those costs could be too much for someone. Maybe there will be some bailout money for those who need to buy guns.

Section 305 addresses keeping the gun in the house. It reads "it shall be unlawful for any person to keep a loaded firearm, or an unloaded firearm and ammunition for the firearm, any 1 of which has been shipped or transported in interstate or foreign commerce, within any premises that is under the custody or control of that person, if--

(A) that person
‘(i) knows, or recklessly disregards the risk, that a child is capable of gaining access to the firearm; (ALL KIDS ARE CAPABLE OF GAINING ACCESS)

‘(I) knows, or recklessly disregards the risk, that a child will use the firearm to cause the (OF COURSE THE COULD, THAT'S THE NATURE OF THE BEAST, EVEN IN THE MOST CAREFUL OF HOMES)

‘(II) knows, or reasonably should know, that possession of the firearm by a child is unlawful under Federal or State law

‘(B) a child uses the firearm and the use of that firearm causes the death of, or serious bodily injury to, the child or any other person.


That's it for me...I'm on to other topics.

Oh, as far as another solution to the problem. Wow, where to start. It's ultimately not about guns, its about people who need help for substance abuse, alcoholism, physical abuse, lack of a stable home, no father figure, perceived or real injustice suffered, etc. People who kill do so b/c of hurt in their own lives.

Jeff said...

Phillip,

Oh my goodness, it's like an NRA convention in here.

Thank you for the quotes. I love quotes! It's a nice refreshing change. However, the question still stands whether the founding fathers intended the second amendment to include all future weapons. I'm not sure they envisioned a citizen walking down the street with a granade launcher perched on their shoulder. Maybe I need to save up for a ballistic missile in my backyard. I don't trust the government to have the only missiles and I may need it to protect my house from the evil-doers (for you W fans out there). It's an arms race between the government and the citizenry!

Regarding license requirements, you're still missing the point. It's not about creating law-abiding criminals; it's about enacting measures that help identify and prevent illegal transfers. I agree that any proposed measure needs to be weighed against the insterests of law abiding gun owners. The point, however, is to make it more difficult for guns to be illegally transfered.

You say that the law already does that. However, a cop in my city was just killed with a gun purchased at a South Carolina gun show where records of the sale are not required. In fact, you can purchase a AK47 at a gun show in South Carolina with no background check and no questions asked. The gun was illegally purchased by an ex-con but there were no safeguards in place to prevent the illegal transfer.

Another obvious problem is straw purchases. It's one thing to have a law against straw purchases. It's another thing to give law enforcement and gun shop owners the tools to detect and prevent those situations. I am perfectly willing to hear arguments about why certain requirements are not an effective means to prevent illegal transfers, but to say that the laws today are sufficient is simply ignoring reality.

Natalie, you must be kidding me (banging my head against the desk). Where are you getting your talking points? Your cut and paste left out some very important words:

(2) PROHIBITION AND PENALTIES- Except as provided in paragraph (3), it shall be unlawful for any person to keep a loaded firearm, or an unloaded firearm and ammunition for the firearm, any 1 of which has been shipped or transported in interstate or foreign commerce, within any premises that is under the custody or control of that person, if--

(A) that person--

(i) knows, or recklessly disregards the risk, that a child is capable of gaining access to the firearm; and

(ii) either--

(I) knows, or recklessly disregards the risk, that a child will use the firearm to cause the death of, or serious bodily injury (as defined in section 1365 of this title) to, the child or any other person; or

(II) knows, or reasonably should know, that possession of the firearm by a child is unlawful under Federal or State law; and

(B) a child uses the firearm and the use of that firearm causes the death of, or serious bodily injury to, the child or any other person.

(3) EXCEPTIONS- Paragraph (2) shall not apply if--

(A) at the time the child obtained access, the firearm was secured with a secure gun storage or safety device;

(B) the person is a peace officer, a member of the Armed Forces, or a member of the National Guard, and the child obtains the firearm during, or incidental to, the performance of the official duties of the person in that capacity;

(C) the child uses the firearm in a lawful act of self-defense or defense of 1 or more other persons; or

(D) the person has no reasonable expectation, based on objective facts and circumstances, that a child is likely to be present on the premises on which the firearm is kept.

Natalie said...

jeff, so what's your point?

Jeff said...

Natalie,

I'm being a little unfair. There are a few areas where I think the langauge could be tighter, but it is hardly the forboding provision you're making it out to be. Your cut and paste left out some very important "and"s, not to mention the exceptions.

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