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Tuesday, June 28, 2016

ENOUGH: innocent lives must be saved!

In light of the recent SIT-IN in Congress, the upcoming Party conventions and a major presidential election, it is fitting to review the topic of gun violence control from another perspective: that of current law on the issue, as well as examples of registration and licensing that might be utilized to curb gun violence.  The following summary combines materials from several sources, as indicated, and is meant to lay groundwork for upcoming Part 2, which details gun violence control proposals based on varied registration and certification procedures. My main purpose today is to present this consolidated information as background and foundation toward perhaps gaining a slightly revised perspective on this extremely important issue.

(There have been postings on the “gun issue” on this Blog numerous times in the past, including: 12/15/2012, 12/22/2012, 12/30/2012, 01/01/2013, 02/10/2013, 05/13/2013, 06/19/2013, 12/07/2015). 
Major Federal Laws:
National Firearms Act (1934) (from: FindLaw.com)
·         The original Act imposed a tax on the making and transfer of firearms defined by the Act, as well as a special (occupational) tax on persons and entities engaged in the business of importing, manufacturing, and dealing in NFA firearms.
·         Required the registration of all NFA firearms with the Secretary of the Treasury. Firearms subject to the 1934 Act included shotguns and rifles plus certain firearms described as “any other weapons,” such as machine guns, short-barreled rifles, heavy weapons, explosive ordnance, silencers, and disguised or improvised firearms). 
·         Its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. The $200 tax has not changed since 1934.
·         Imposed a duty on persons transferring NFA firearms, as well as mere possessors of unregistered firearms, to register them with the Secretary of the Treasury. 
·         The Supreme Court in 1968 held in the Haynes case that the registration requirement imposed on the possessor of an unregistered firearm violated the possessor’s privilege from self-incrimination under the Fifth Amendment of the U.S. Constitution. The Haynes decision also made the 1934 Act virtually unenforceable.
Omnibus Crime Control and Safe Streets Act of 1968: Prohibited interstate trade in handguns, increased the minimum age to 21 for buying handguns.
Title II of the Gun Control Act (GCA) of 1968 amended the NFA to cure the constitutional flaw pointed out in Haynes. Focused primarily on regulating interstate commerce in firearms by generally prohibiting interstate firearms transfers except among licensed manufacturers, dealers and importers.
·         First, the requirement for possessors of unregistered firearms to register was removed.  There is no mechanism for a possessor to register an unregistered NFA firearm already possessed by the person.  In 1971, the Supreme Court reexamined the NFA in the Freed case and found that the 1968 amendments cured the constitutional defect in the original NFA. 
·         Second, a provision was added to the law prohibiting the use of any information from an NFA application or registration as evidence against the person in a criminal proceeding.  
·         Title II also amended the NFA definitions of “firearm” by adding “destructive devices” and expanding the definition of “machinegun.”
Firearm Owners’ Protection Act 1986
·         amended the NFA definition of “silencer” by adding combinations of parts for silencers and any part intended for use in the assembly or fabrication of a silencer.
·         also amended the GCA to prohibit the transfer or possession of machineguns. Exceptions were made for transfers of machineguns to, or possession of machineguns by, government agencies, and those lawfully possessed before the effective date of the prohibition, May 19, 1986.
·         Revised and partially repealed the Gun Control Act of 1968. Prohibited the sale to civilians of automatic firearms manufactured after the date of the law's passage. Required ATF approval of transfers of automatic firearms.
Undetectable Firearms Act (1988): Effectively criminalizes, with a few exceptions, the manufacture, importation, sale, shipment, delivery, possession, transfer, or receipt of firearms with less than 3.7 oz. of metal content.
Gun-Free School Zones Act (1990): Prohibits unauthorized individuals from knowingly possessing a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.
Brady Handgun Violence Prevention Act 1994.  In 1993, Congress amended the 1968 Gun Control Act by enacting the Brady Handgun Violence Prevention Act that required the Attorney General to establish an electronic or phone-based background check to prevent firearms sales to persons already prohibited from owning firearms. This check, entitled the National Instant Criminal Background Check System (NICS) went into effect as required on November 30, 1998.  (More than 100 million Brady-mandated background checks have been conducted since its passage in 1994).
Under certain interim provisions in the Bill, a firearms dealer who proposed to transfer a handgun must receive from the transferee a statement (the Brady Form), containing the name, address and date of the proposed transferee along with a sworn statement that the transferee was not among any of the classes of prohibited purchasers who cannot have a gun for personal or business use if they:
1. Were convicted of a crime punishable by being in prison for more than one year;
2. Are a fugitive from justice;
3. Are addicted to, or illegally use, any controlled substance;
4. Have been ruled mentally defective by a court, or are committed to a mental institution;
5. Are an illegal alien living in the United States unlawfully;
6. Received a dishonorable discharge from the U.S. Armed Forces;
7. Renounced your U.S. citizenship, if you are a U.S. citizen;
8. Are subject to a court restraining order that involves your 'intimate partner,' your partner's child, or children; or
9. Were convicted of domestic violence in any court of a misdemeanor.
Federal Assault Weapons Ban (1994–2004): Banned semiautomatic assault weapons and large capacity ammunition feeding devices. The law expired in 2004.
Protection of Lawful Commerce in Arms Act 2005: Prevent firearms manufacturers and licensed dealers from being held liable for negligence when crimes have been committed with their products.
NICS Improvement Amendments Act of 2007 (NIAA):  Section 105 the NIAA provides for restoration of firearm ownership rights in mental health cases. Under NIAA it is up to each U.S. state to come up with its own application process; thus the procedure to regain one's rights vary from state-to-state
Second Amendment Supreme Court Decisions (from Wikipedia)
An individual right to own a gun for personal use was affirmed in the landmark District of Columbia v. Heller decision in 2008, which overturned a handgun ban in the Federal District of Columbia.  In the Heller decision, the court's majority opinion said that the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home."
However, in the Court's majority opinion, Justice Antonin Scalia wrote something quite remarkable:
“Like most rights, the Second Amendment right is not unlimited (emphasis mine). It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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.”
The four dissenting justices said that the majority had broken established precedent on the Second Amendment, and took the position that the Amendment refers to an individual right, but in the context of militia service.
In the McDonald v. City of Chicago decision in 2010, the Supreme Court ruled that, because of the incorporation of the Bill of Rights, the guarantee of an individual right to bear arms applies to state and local gun control laws and not just federal laws.
The Supreme Court has not ruled on whether or not the Second Amendment protects the right to carry guns in public for self-defense.  However,  Federal appeals courts have issued conflicting rulings on this point.
o   United States Court of Appeals for the Seventh Circuit ruled in 2012 that it does, saying, "The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside."   
o   Tenth Circuit Court ruled in 2013 that it does not, saying, "In light of our nation's extensive practice of restricting citizen's freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment's protections.”
o   More recently, the Ninth Circuit Court ruled in its 2016 decision Peruta v. San Diego County that the Second Amendment does not guarantee the right of gun owners to carry concealed weapons in public
State laws (including Washington, D.C. and the U.S. territories)
Are independent of existing federal firearms laws, although they are sometimes broader or more limited in scope than the federal laws.  Thus, State level laws vary significantly in their form, content, and level of restriction.
·         Forty-four states have a provision in their state constitutions similar to the Second Amendment to the U.S. Constitution, which protects the right to keep and bear arms. The exceptions are California, Iowa, Maryland, Minnesota, New Jersey, and New York. In New York, however, the statutory civil rights laws contain a provision virtually identical to the Second Amendment.
·         Additionally, the U.S. Supreme Court held in McDonald v. Chicago that the protections of the Second Amendment to keep and bear arms for self-defense in one's home apply against state governments and their political subdivisions.
·         Firearm owners are subject to the firearm laws of the state they are in, and not exclusively their state of residence. Reciprocity between states exists in certain situations, such as with regard to concealed carry permits. These are recognized on a state-by-state basis.
·        In many cases, state firearms laws can be considerably less restrictive than federal firearms laws. This does not confer any de jure immunity against prosecution for violations of the federal laws. However, state and local police departments are not legally obligated to enforce federal gun law as per the U.S. Supreme Court's ruling in Printz v. United States. 
·         States also have laws that either allow or prohibit you from openly carrying a gun in public. These are called "open carry" laws. Generally, states fall into one of four categories:
 
o     Permissive Open Carry States - Allow you to carry a gun without a permit or license.
o    Licensed Open Carry States - Allow gun owners to carry firearms openly only after they are issued a permit or license.
o   Anomalous Open Carry States - Carrying a gun openly may be generally lawful under state law, but local governments may pass their own gun laws that are more restrictive than the state's laws.
o   Non-Permissive Open Carry States - Carrying a gun openly is against state law, or is legal only in limited circumstances (e.g., while hunting) or when legally used for self-defense 
·         A minority of U.S. states have created assault weapon bans that are similar to the expired federal assault weapons ban
The U.S. Supreme Court on Monday June 20, 2016, left in place gun control laws in New York and Connecticut that ban assault weapons (and large capacity magazines) like the one used in the massacre at an Orlando nightclub, rejecting a challenge brought by gun rights advocates.    (Reporting by Lawrence Hurley; Editing by Will Dunham for MSN.com)
 
Recent Congressional Action:
(© The Associated Press FILE June 16, 2016)
WASHINGTON (AP) — A divided Senate blocked rival election-year plans to curb guns Monday, eight days after the horror of Orlando's mass shooting intensified pressure on lawmakers to act but knotted them in gridlock anyway — even over restricting firearms for terrorists.  No background checks are currently required for anyone buying guns privately online or at gun shows.
In largely party-line votes, senators rejected one proposal from each side to keep extremists from acquiring guns and a second shoring up the government's system of required background checks for many firearms purchases.  Monday's votes were 53-47 for Grassley's plan, 44-56 for Murphy's, 53-47 for Cornyn's and 47-53 for Feinstein's — all short of the 60 needed.
Sen. Susan Collins, R-Maine was trying to fashion a bipartisan bill preventing people on the government's no-fly list from getting guns. That list currently contains around 1 million people — including fewer than 5,000 Americans or legal permanent residents, according to the latest government figures. The narrower no-fly list has just 81,000 names.  (Associated Press writers Matthew Daly and Richard Lardner contributed to this report)
What preliminary thoughts and conclusions might we draw from this brief review of legislation and SCOTUS rulings?  I offer the following:
1.       Federal laws in several states are not being strongly enforced because of the Printz decision.  State and local police departments cannot be required to enforce federal gun law.  This leaves open the possibility that states can prevent enforcement of federal laws simply by ignoring them. 
 
2.       The right of “concealed carry” is not settled law, although some states have opted to pass legislation that allows concealed carry in most major venues, and conflicting views have been expressed in lower courts
 
3.       It appears there is an opening for restoring the ban on assault weapons but not with current radical right-wing congressional incumbents
 
4.       Opinion Polls show that there are common sense steps toward greater gun violence control that are favored by at least 2/3rds of the American public, but their desires are ignored in favor of the desires of the NRA.  Apparently, there is some disconnect with what people express in opinion polls, and how they end-up voting at the election polls.  Nonetheless, there needs to be a discussion among responsible gun owners of an alternative organization.
5.       The conservative cabal on the SCOTUS have interpreted law and the Founder’s intent of law with a myopic view of history and of actual wording.  SCOTUS has thus helped to create an atmosphere of gun violence.
6.       In this writer’s opinion, Congress has not only helped create that atmosphere, they have actually been complicit in the ability of terrorists and mass murders to obtain guns, to use automatic weapons, and to discharge many rounds in one pull of the trigger.  By their actions and in-actions the mouthpieces of the NRA have truly been complicit in these acts.  Complicity is defined as the “state of being an accomplice; a partner in wrongdoing.”
7.       Justice Scalia has left a lasting legacy in his own words that might come back to haunt the NRA: “Like most rights, the Second Amendment right is not unlimited (emphasis mine). It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
8.       In the Heller decision, the court's majority opinion said that the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Question is:  what is their definition of a “law-abiding, responsible citizen”? Could it include the proper registration of all gun ownership and certification of their “responsible law-abiding citizenship”?
 
9.       The Supreme Court in 1968 held in the Haynes case that the registration requirement imposed on the possessor of an unregistered firearm violated the possessor’s privilege from self-incrimination under the Fifth Amendment of the U.S. Constitution.  Does this imply that the registration and licensing of all guns could be forbidden in spite of the fact that we require registration and licensing of “responsible citizens” in many areas: for driving a car, hunting and fishing, selling or actually displaying of fireworks, even the licensing of “drug stores” and “medical marijuana” growers and vendors. Do unregistered vendors such as these also have a fifth amendment right from self-incrimination if they operate without a license?  Of course not.  What, then, gives unregistered firearm possessors this special privilege?  In my opinion, if all gun owners are required to register their guns and have them licensed there is no discrimination, and no fifth amendment right is abrogated, but I am not the Supreme Court…
10.   Under Heller, states have begun to make laws that challenge federal law.  One example, “open carry laws” including unrestricted carry which has not been addressed by the SCOTUS.  This trend toward states having the right to make federal laws null and void by reaching beyond them is essentially the result of a Supreme Court controlled by a majority of states’ rights advocates.  It is regrettable and dangerous that because such rulings go un-challenged, the furtherance of gun violence control measures in federal legislation is stymied and eventually sidelined.  Nonetheless, Progressives must push ahead and offer solutions to the pervasive problem of gun violence in our society.
Next time, in Part 2 of this series, we shall look at other areas where licensing and registration already exist and where provisions for such may be instructive for moving closer to sensible and responsible gun ownership and gun-seller responsibility that protects an entire society, not just gun owners.