Get Your Gun

By Jim Tortolano
E Pluribus Unum

“Guns are for cowards,” said Batman in a comic book years ago. But that’s easy to say when you are a fictional character who is also a billionaire in possession of bullet-proof armor and his own tank.

For the rest of us flesh-and-blood actors on the human stage, the issue of whether or not to own a firearm is more serious. For some Americans, the right to bear arms is as sacred as the right to free speech. For others, it’s a perpetuation of a frontier mentality that contributes to one of the highest murder rates in the world.

At opposite ends of the gun debate are those who might be called absolutists. Some gun owners would like the right to own nearly any pistol or rifle they could afford, and there are some gun dealers more than willing to accommodate them.

On the other extreme is the position that all guns are evil, and none should be in private hands. Only trained peace officers and military personnel should have the right to carry them, they believe.

Most Americans, I think, are somewhere in between. A recent study suggested that there were 310 million legal firearms in the United States, not including those held by the military. That’s out of a population of 305 million people
In 2009, it was reported that nearly 2000 people were killed by rifles and handguns in the U.S. accounting for nearly two-thirds of all homicides.

Most Americans agree, I think, that something needs to be done about gun violence, but there’s no consensus. Conservatives tends to think that armed citizens defending themselves could deter shootings, and liberals think that the existence of guns is the problem.

Both arguments have some holes in them, no joke intended. In a real-life situation, it’s rare that a gun-owner has the gun loaded and available when it might be needed. And even then, under the stress of the moment, it’s difficult to be accurate and not endanger innocent people.

On the flip side, the absence of guns for self-defense puts the citizen at the total mercy of criminals and police response time. As the saying goes, “When seconds count, police are minutes away.”

The basis for much of the discussion – which flares up with each mass shooting – is the Second Amendment to the Constitution, which states “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.”

Much confusion and argument surrounds the relationship between the first and second clauses of the Amendment. Did it apply only to citizens serving in the state militia (nowadays meaning National Guard and state defense force units) or to the average citizen?

The U.S. Supreme Court finally settled that issue with cases in the early part of the 21st century. In District of Columbia vs. Heller, the Supreme Court ruled 5-4 that a ban on privately-owned firearms in the nation’s capital was a violation of the Second Amendment, and stipulated that the right was distinct from any obligation to be in a state militia.

Later, in U.S. vs. Miller, the high court extended that to the states under the 14th Amendment, establishing a national right to bear own and bear arms as an individual.

But the rulings, welcomed as they were by gun rights advocates, also acknowledged that “reasonable” restrictions on guns were permitted, such as prohibitions on private ownership of machine guns, or allowing mentally unstable persons or convicted criminals to possess firearms.

In the case of Miller, the City of Chicago required that all firearms be registered, but stopped allowing any registration after 1982, creating a de facto ban. The Supreme Court found that unreasonable.

So where does that leave us? The states can determine their own laws regarding guns (within certain limits), which will vary from place to place. Even within a state, where you live will make a difference. Getting a concealed carry permit is relatively easy in a sparsely-settled rural county; it’s next to impossible in crowded urban counties.

Having a gun in the house for self-defense is a matter of personal choice. To make that choice sensibly, you might want to ask yourself these questions:

• Have I selected the right weapon? A rifle is probably not a good choice for close-in confrontations; a pistol is easier to carry, aim and use, especially for women and the elderly.
• Do I have the means to lock the firearm up safely to keep unauthorized people (primarily children) away from it, yet have to handy enough to use in an emergency? Most people can’t answer this affirmatively.
• Have I received proper instruction on loading, unloading, firing and caring for the firearm?
• Do I fully understand my rights and responsibilities in my state regarding self-defense? The old fall-back phrase, “It’s better to be judged by 12 than carried by six,” has some validity, but if you use force excessively or negligently, you could be prosecuted. If someone is stealing your car from your driveway, for example, you probably cannot lawfully start blazing away at such a person. Generally speaking, there is no killing in defense of property.
• Am I prepared to accept the emotional cost associated with killing or crippling another human being?
Personally, I have made the choice to have a gun, a 9mm automatic pistol, in my home. It’s always under lock and key and stored separately from my ammunition.

But the devices I really rely on for home protection are our dog and my pepper-spray gun. The former is alert and loud, and the latter is legal, non-lethal and would probably stop an intruder just as well as a pistol and with a lot fewer ramifications.

Batman may not need a gun, but maybe you do. If you feel that way, though, give it as much thought as you would any other potentially life-or-death situation. It’s a choice you may have to live with for a long time.

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  1. Wayne Sherwood says:

    I am a strong advocate for the Second Amendment, believing that it is necessary for a free society to keep their own arms to fight potential tyranny.

    However, that been said, such a position today is nearly pointless as the government has weapons we, the citizens, do not have access too. When the Second Amendment was written, the farmer had a musket and the solider had a musket. The 18th Centuries version of MAD (Mutually Assured Destruction). Now the balance is almost infinitely tipped in favor of the Government.

    If, though, people look at the other Amendments around the Second, that is to say the First, Third, Forth and even Fifth, These amendments directly address the issue of protecting citizens from actions of the Government. If one looks at the Second Amendment in that perspective, then it seems clear that it is referring to the rights of the Citizens to protect themselves from tyranny by owning firearms.

    Nevertheless, there is a rising number of tragedies being committed by people using guns. But in almost every case of mass shooting in the last couple years, the shooter has a history of mental illness.

    Anyone who thinks we can rid America of guns is a fool. But what we can do is to try and reduce the number of tragedies by creating an active program to identify and help the mentally ill in this country.

    Some people may oppose their tax dollars going to help the poor and mentally ill, but if they look at it from a point of creating a safer and more secure society, the money is going toward public defense.

  2. Doug Nulle says:

    I commend Jim and Wayne for their balanced and thoughtful perspectives on this issue. As a member of the National Rifle Association and the Montana Shooting Sports Association, I am a strong supporter of the Second Amendment. But as a retired attorney who has undergone peace officer training and as the son of a career law enforcement officer, I certainly do understand the need for limitations on the exercise of rights protected by that Amendment. I personally believe that more than adequate limitations exist in our current law, particularly on the federal level. See, e.g., 18 U.S.C. §922.

    The U.S. Supreme Court has, indeed, addressed this issue in two landmark cases within the past five years. In D.C. v. Heller, 554 U.S. 570 (2008), the Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. In McDonald v. City of Chicago, 561 U. S. ____ (2010), the Court held that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. In doing so, the Court recognized this right to be a fundamental one and as such, this right is now binding upon the states.

    That said, what I found most disturbing in both of these cases is that the Court majority failed to establish a standard of review for cases involving Second Amendment infringements. To be fair, the majority in Heller did specifically reject the “interest-balancing” approach, proposed by Justice Breyer in his dissenting opinion and they appeared to reject the ‘rational basis scrutiny’ standard of review, which is the broadest of the existing three standards (rational basis, intermediate scrutiny and strict scrutiny) and the easiest standard to establish the constitutionality of an existing statute or regulation. Notwithstanding this failure, in light of the fact that the rights under the Second Amendment have now been recognized to be fundamental, I am convinced that the likely standard of review to be applied by the Supreme Court in future Second Amendment infringement cases of this type will be strict scrutiny. Under this standard, a law or regulation which substantially infringes on a Second Amendment right would be subject to ‘strict scrutiny’ by the courts and would be held to be constitutional only if that law or regulation is narrowly tailored to serve a compelling state interest. This is a very high burden for the government to meet; indeed, it is the highest. But again, we’re discussing a fundamental right, here.

    Many gun control advocates favoring additional statutory and regulatory restrictions on the Second Amendment Right to Keep and Bear Arms have focused their arguments on the following language in the majority opinion of Heller, which was also cited and paraphrased in McDonald:

    “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

    “We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874)”.

    Heller, 554 U. S., at 626-627.

    I think it’s important to mention a couple of things, here. First of all, I believe this language is dicta. In other words, this language is an expression in the opinion which goes beyond the facts before the Court at the time and is thus, an individual view of the author of the opinion and is NOT BINDING in subsequent cases. Secondly, these statements were made in the context of an historical analysis of several commentaries and cases of LOWER courts which upheld various gun control measures. I would also point out that the use of such language as, “…nothing in our opinion should be taken to cast doubt on longstanding prohibitions…”, and, “…presumptively lawful regulatory measures…”, falls far short of determining the constitutionality of these measures in accordance with an established analytical framework and proper standard of review.

    On the other hand, it is also apparent from this information that neither Heller, nor McDonald, could be characterized as a ‘be all to end all’ case on the Second Amendment. If anything, these decisions actually provide a considerable amount of ongoing latitude to current and future federal and state firearm statutes and regulations. As these statutes and regulations are challenged, we’ll undoubtedly see just how much latitude is provided and how many of these gun control measures are ultimately held to be constitutional and consistent with these decisions. This will be especially significant if and when the Court does adopt a standard of review for Second Amendment infringements in a future case. And I believe that undoubtedly, some of the current gun control measures in existing law would be upheld as constitutional, even with the application of strict scrutiny, or the most narrow, standard of review. The bottom line here is that I am not contending that ANY restriction of someone’s Second Amendment rights is unconstitutional; what I am contending is that the federal and state governments bear a much higher burden of establishing the constitutionality of that type of restriction, in the wake of Heller and McDonald.

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