The Las Vegas massacre earlier this month opened a new chapter in the gun debate. Most gun rights advocates, including the National Rifle Association, accept that the Second Amendment right to keep and bear arms is not the same thing as a right to any kind of weapon, anywhere, anytime, by anyone. It is a limited right.
The NRA, for example, accepts the federal ban on fully automatic weapons (machine guns), a ban that has been upheld by the courts. And after Las Vegas, some pro-gun Senators and the NRA raised the possibility of regulating (but not banning) “bump stocks,” which the Las Vegas shooter used to turn semi-automatic weapons effectively into fully automatic weapons.
But the rift in the country over guns is otherwise unabated. Here’s an idea to move that needle.
What we need is a compromise over regulations to offer at least a partial solution to America’s unending culture war over guns, one that would allow both the proponents of gun ownership and the proponents of gun safety to each get much of what they want in a reasonable and constitutional manner.
That solution? Focus the protection of the Second Amendment on keeping nonmilitary arms at home for self-defense, while putting an escalating standard of protection on other kinds of arms and uses.
The Second Amendment says the following: “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.”
The amendment has been read in two ways. The first holds that the right to bear arms is only the collective right to the arms needed for a citizen’s militia. The second holds that the right to keep and bear arms is an individual right, irrespective of any militia.
In upholding the individual right to bear arms, Justice Antonin Scalia, writing for the majority in District of Columbia et al v. Heller, asserted the second interpretation, which is now law of the land. (Scalia held, implausibly in my view, that the prefatory clause of the Second Amendment could not legally control what he termed the operative clause of the amendment).
Yet even Scalia, in backing the individualist version of the right to bear arms, noted at length that the right is not unlimited. For example, as noted earlier, he acknowledged and supported the existing ban on fully automatic weapons.
Scalia, in fact, went much further. He argued at length in Heller that the core constitutional right is to keep and bear arms for self-defense within one’s home with weapons in common use for self-defense. Thus, he struck down a District of Columbia ordinance that regulated or banned handgun ownership within the home, judging handguns to be widely used for self-defense and self-defense within the home to be the core protection offered by the Second Amendment.
Yet Scalia also enumerated many key restrictions on the right to keep and bear arms. He reaffirmed prohibitions on felons, the mentally ill, limits on arms in sensitive places (like schools and government buildings), regulations on commercial sales, and importantly, prohibitions of dangerous and unusual weapons, and “weapons most useful in military service — M16 rifles and the like.” The point, according to Scalia, was that the Second Amendment only protects arms typically kept at home by law-abiding citizens for the purposes of self-defense, such as handguns.
On this basis, the Fourth Circuit of the US Court of Appeals recently upheld Maryland’s ban of semi-automatic assault weapons like the AR-15, noting that the AR-15 is modeled on the M16 and, while it is semi-automatic, unlike the automatic M16, the AR-15 possesses crucial military features that put it outside of the protection of the Second Amendment (or at least subject it to a constitutionally satisfactory balancing standard with public safety).The court’s reasoning should be the basis of a much broader compromise.
Here is an example of a regulation that could provide an effective compromise. If individuals want to own semi-automatic assault weapons, either as collectors or for practice shooting, then enforce a provision that such weapons can only be kept at legally registered shooting ranges or other registered depositories, and cannot be removed from the designated premises.
Similarly, if individuals want to use unusual high-powered weapons for hunting, and if such weapons are deemed to be acceptable for hunting purposes, then require that the hunters collect their weapons from a registered hunting depot and redeposit them after hunting, with the guns and ammunition properly accounted for. Or if gun enthusiasts want to visit gun shows, then fine, but purchases of regulated weapons would have to be delivered to designated sites, such as shooting ranges or hunting depots.
Gun ownership at home would be protected, according to the protections recognized in Heller. Gun ownership more broadly would also be protected, for hunting and sports shooting, but subject to protective regulation. We would end the day when a madman could lawfully own and keep powerful assault weapons wherever they like, and then carry them at will to a chosen location to murder those gathered, but still recognize the right of Americans to own, collect and shoot their weapons for lawful purposes.
No solution will satisfy all perspectives. A very large part of the population (roughly one-third) is dedicated to gun ownership, most importantly for self-defense at home, and also for hunting and sports shooting. A majority (roughly two thirds) does not own a gun, and many of them would like to see a ban on all guns including handguns and certainly on semi-automatic assault weapons.
Would this compromise end gun deaths? Of course not, since so many gun deaths occur at home among family and friends. And criminals would still evade the law, no doubt, so that we would as always depend on police forces for protection of persons and property.
Would such regulations inconvenience gun owners? Yes, modestly, but not unreasonably. Would such an approach offer some relief to a society that is suffering an epidemic of deaths from mass shootings, random gun violence, and rising fear? Yes, it would.
