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Monday, July 4, 2016

Independence from the NRA

July Fourth - Independence Day – is usually a time to think and act upon our heritage, our national purposes and our patriotism.  I have written about that before (see “INDEPENDENCE DAY” - 7/4/15).  While today’s posting is the second in a series on gun violence control, it deals in the broadest sense with our Heritage, national purpose and patriotism because it goes to the heart of what it means to be an inter-dependent society, and a unique example of a democratic community in which freedoms and rights are not to be used to harm or injure others, nor to over-ride the basic priorities of equality, liberty and the pursuit of well-being and of life itself.

Let us begin today by not assuming that all restrictions on guns are attempts to curb gun ownership, or to put undue burdens on gun owners, or to confiscate guns.  Those are simply smokescreens that the NRA uses to capture the attention and monetary support of 2nd amendment purists who see nothing else but strict interpretation of that Amendment.  In the face of such rhetoric, one can only point again to the words used by one of the most conservative Justices ever, Antonin Scalia, when he wrote the majority opinion for the Court in District of Columbia v. Heller decision in 2008:
“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:  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.”
With those words in mind, let us remind ourselves of the current federal and state laws (something we looked at in greater detail last Post), particularly as concerns registration and licensing.  (A more detailed and viable summary can be found at The Law Center to Prevent Gun Violence at www.smartgunlaws.org)
“A limited system of federal firearms registration was created by the National Firearms Act, 26 U.S.C. § 5801 et seq.  The National Firearms Act (“NFA”) was enacted in 1934 to impose an excise tax and registration requirements on a narrow category of firearms…  With its provisions effectively limited to pre-ban machine guns and transfers of short-barreled rifles and shotguns that are specifically authorized by the Attorney General, the registration system created by the National Firearms Act falls far short of a comprehensive registration system.
“There is no comprehensive national system of gun registration.  In fact, federal law prohibits the use of the National Instant Criminal Background Check System (NICS) to create any system of registration of firearms or firearm owners.5
Summary of State Law
Six states and the District of Columbia require registration of some or all firearms. Hawaii and the District of Columbia require the registration of all firearms, and New York requires the registration of all handguns through its licensing law.10 Hawaii, New York and four other states also have a registration system for certain highly dangerous firearms, such as assault weapons.  (For more information about such laws, see their summaries on Assault Weapons, 50 Caliber Weapons, and Large Capacity Ammunition Magazines).

Additional states require the reporting of firearm sales and transfers to a state or local agency, which maintains these records.  For information about such laws, see the summary on Maintaining Records & Reporting Gun Sales. California and Maryland also require new residents to report certain firearms that they bring into the state.
Conversely, eight states have statutes prohibiting them from maintaining a registry of firearms except in limited circumstances.
The Law Center makes the bold claim that:
“Licensing and registration laws make it more difficult for dangerous people to obtain guns and help ensure that firearm owners remain eligible to possess their weapons. Firearm registration laws can lead to the identification and prosecution of violent criminals.  Registration helps law enforcement quickly and reliably trace firearms recovered from crime scenes.  Registration laws are most effective when combined with laws requiring licensing of firearm owners and purchasers.
“States with some form of both registration and licensing have greater success keeping firearms initially sold by dealers in the state from being recovered in crimes than states without such systems in place.2  This data suggests that licensing and registration laws make it more difficult for criminals, juveniles and other prohibited purchasers to obtain guns.” 
The Center suggests the following as a framework of legislative actions and provisions that might get us to a point where these outcomes are general and viable:
  • Registration required for all firearms prior to taking possession, or, in the case of firearms already owned or brought into the jurisdiction, immediately after the firearm is brought into the jurisdiction
  • Registration to include: name, address and other identifying information about the owner of the firearm; names of manufacturer and importer; model, type of action, caliber or gauge, and serial number of firearm; and name and address of source from which firearm was obtained (Hawaii, District of Columbia)
  • Registered owners are required to renew registration annually, including submitting to a background check (D.C. requires renewal every three years; New York requires handgun licensees to recertify their licenses every five years)
  • Registered owners are required to report any loss, theft or transfer of the registered firearm to law enforcement within a short time of the event and to turn in their registration card or certificate upon loss, theft or transfer (District of Columbia)
  • Registered owners are required to store all firearms safely and securely
  • Additional restrictions may include limitations on where registered firearms may be possessed and to whom they may be transferred (particularly relevant for certain classes of firearms such as assault weapons, 50 caliber rifles, and large capacity magazines)
Some Other Suggestions of reasonable and sensible reforms include:
1)      Ban large capacity ammunition magazines. Large capacity magazines, some of which can hold up to 100 rounds, are the common thread uniting all of the major mass shootings in recent history [pdf]. These magazines were prohibited under federal law until Congress allowed the 1994 assault weapons ban to expire in 2004.  It’s time to bring it back.
 
2)      Require a background check every time a firearm is sold.  Under existing federal law, a prospective purchaser only has to undergo a background check when buying a gun from a licensed dealer. If a person buys a gun from a so-called "private seller"—as is the case in an estimated 40 percent of gun sales every year—no background check is federally required. A background check requirement alone isn't enough—more also needs to be done to ensure that the names of persons who are prohibited are appropriately entered into the system.

3)      Give ATF the resources it needs. Better enforcement of existing law is an important piece of reducing gun violence, which is why the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) needs to have the resources and permanent leadership to enforce existing federal firearms laws effectively.  For starters, the Senate ought to have promptly confirmed President Obama's nominee for ATF Director instead of blocking approval for FOUR YEARS!
 
Second, the Bureau should be given the resources to crack down on dishonest firearms dealers. ATF has the resources to perform an inspection, on average, only once every decade.  As documented by the Washington Post, that's only one of the many resource limitations that are preventing ATF agents from more effectively preventing the widespread trafficking of crime guns.

4)      Improve access to funding and data for researchers.  As the New York Times reported recently, the Centers for Disease Control and Prevention (CDC) once played a key role in supporting research into the public health concerns surrounding gun violence and the development of effective firearms laws. That was until Congress singled out guns in the CDC's funding bill: “None of the funds made available for injury prevention and control…may be used to advocate or promote gun control.” Researchers are also denied access to data tracing the origins of firearms recovered in crimes by what is known as the Tiahrt Amendment, that restricts and conceals trace data from public view.
When the freedoms, liberties, property or lifestyle of some threaten to cause harm, injury or hurt to many others, there have to be penalties, restrictions, regulations or limits by which we can all live together in tranquility, solidarity, safety and well-being. It is common-sense, but it is also related to a contractual theory of governing that underlies much of what we are about as a representative democracy and a Republic.  In that vein, I submit to you some penalties and requirements that some states have promulgated, or are considering:
  • Criminal Penalties for Buying a Gun for Someone who Can't
  • Criminal Penalties for Buying a Gun with False Information
  • Criminal Penalties for Selling a Gun without a Proper Background Check
  • Require Background Checks for all Handgun Sales at Gun Shows
  • Require Purchase Permit for All Handgun Sales
  • Grant Law Enforcement Discretion in Issuing Concealed Carry Permits
  • Prohibit Violent Misdemeanor Criminals from Possessing Guns
  • Require Reporting Lost or Stolen Guns to Law Enforcement
  • Allow Local Communities to Enact Gun Laws
  • Allow Inspections of Gun Dealers   
We need to put gun registration and licensing in the context of other areas where licensing and permits and registration are common.  That is, there are certain responsibilities placed upon government to regulate those occupations, products and services that might bring harm, injury or even death to citizens and consumers.  These fall under the general areas of Domestic Tranquility and General Welfare of the people, both of which our Constitution’s Preamble says are part of the broad purposes of that document.

Two of the most maligned departments of the federal government are the U.S. Food and Drug Administration (FDA) and the Environmental Protection Agency (EPA).   
The FDA is responsible for protecting and promoting public health through the regulation and supervision of food safety, tobacco products, dietary supplements, prescription and over-the-counter pharmaceutical drugs, vaccines, biopharmaceuticals, blood transfusions, medical devices, electromagnetic radiation emitting devices, cosmetics, animal foods & feed and veterinary products. Under their jurisdiction comes the licensing and registration of vendors and products.   Likewise, the Environmental Protection Agency was created for the purpose of protecting human health and the environment by writing and enforcing regulations, as well as licensing and registering vendors and products.
Both of these agencies are indicative of the broad spectrum of registration, licensing, and issuance of permits that goes on every day.  It is one of the necessities of living in a contractual relationship with others under a constitution that calls for equal justice, equal rights, and the on-going quest for a more perfect Union.

So, how about looking at this whole gun issue from another angle:  treating guns like we treat other products such as automobiles (another form of weapon or at least a potentially dangerous projectile) or perhaps as we treat certain drugs that are potentially harmful, dangerous and injurious.  As citizens, we accept and even request restrictions on potential violence, destruction and injurious results in these other products; how come guns as products are excluded from any restrictions?  The simple answer is the NRA’s power as a lobby.  But I maintain that it is more specifically due to the confusion that the NRA willingly creates by using the term “gun rights.”  In other words – and this is CRUCIAL:  a right to ownership of guns (protected by the 2nd Amendment) is entirely separate from the issue of the safety, viability, potential danger, and potential defects of a product: the actual guns.  Ownership of guns is the protected right; the gun as a manufactured product has no rights.   Any such manufactured product found wanting in certain areas, can (and should) be restricted by government in its role as protector of the general welfare, of domestic tranquility and of equal application of justice for all.  Moreover, any potential or actual use of such a product in the commission of a crime or to do harm to another must be regulated, restricted or banned, and then appropriately punished. 
The following thoughts and proposals are thus offered in the context of what we already accept as reasonable restrictions on potentially dangerous products, and their potentially dangerous utilization, in our daily living.
1)      Just as we have registration required for every car, we should register every gun, renewable every 3-5 years.  Those found with unregistered guns (or without ownership title) should be fined (or perhaps jailed, if warranted) and guns impounded until registered.  I would suggest that background checks continue to be required before any gun is able to be purchased, that guns given to someone or exchanged on a private basis be accompanied by a re-titling and re-registration process similar to car ownership titles.  Just as car dealers often perform the actual paperwork with DMV, so gun dealers might be allowed (encouraged?) to perform this service with an appropriate government agency, if feasible.

2)      Just as we have inspections of cars every year, we should do a similar thing for guns, but not on an annual basis.  We should continue the practice of some police departments for a turn-in of registered and unregistered guns on a periodic basis; no questions asked.  We should also require an inspection of safety devices, and triggers (to make sure that none are “hair” triggers), as well as locks (as we do of pollution control devices on cars) made mandatory for all guns.  Perhaps such inspections could be required every three years.  Guns that fail could become temporarily registered for 10 days during which time they can be fixed, re-inspected, and re- registered.  Guns used only for collection and/or display should probably be exempted from this process, although a special certification could be issued.

3)      Just as we have “learner permits” and driving tests before someone can register a car, likewise we should require certification of training that covers safe and proper use of a gun.  Plus, certification (or permit) from a responsible party such as state police or mental health practitioner that the applicant is mentally fit to own and utilize a gun, would be desirable.  Standardized tests could be part of this process.

4)      Just as we have traffic laws, rules of the road, and driving regulations, we should consider the same for gun ownership and on-going registration.  Similar to requiring the re-certification of certain drivers, we should require re-training, re-testing and re-certification by a professional when certain behaviors, violations, or complaints are introduced.

5)      Just as we have a “traffic court” in many jurisdictions, let us consider establishing “gun use courts” to handle infractions related to gun ownership and gun use.

6)      In all this, it is necessary of course, to determine how much should be mandated in federal laws, and how much should be mandated by State laws, and how much leeway states should have in the implementation of certain of these provisions, i.e. inspections, registrations, certifications and which state or local agencies of government should be involved.
Just because there is a second amendment that allows for ownership of guns does not negate the larger issue of the rights of everyone to live without fear and in safety.  The right to own guns does not negate the fundamental and superior right to life, liberty and the pursuit of happiness; to freedom and justice for all; to the pre-eminence of life above property or to the safety and security of government protection of the general welfare of all citizens.  Free speech is also a constitutional “right”, but it is not unrestricted.  In fact, one cannot slander others, use hate-filled speech against others, or yell a false warning of FIRE in a crowded theater. 
Yet we cannot get a Congress (filled with Republicans who support restrictions of all kinds on voting, abortion and women’s equal rights among others) to support any restrictions on guns as products, or as lethal weapons that can negate the rights and lives of other citizens.
By advocating for no restrictions on gun ownership or guns as products, the NRA ends up using the second amendment to advocate for violence, doubling down on that nefarious construct by advocating that concealed carry by more and more people can stop, rather than exacerbate, mass killings!  That is wrong; it is destructive of all that underlies our system of contractual government.  The fact that the NRA has a lobbying arm that is also a front for gun manufacturers, receiving monetary support from the very industry they are sworn to protect, is nothing short of bribery and a kick-back scheme.  They are guilty of selling a second amendment right to the highest bidders, of pimping for their contributors, and of unwitting complicity in the 117,000 deaths of men, women, and children every year by gun violence. 
As the direct descendant of many gun makers on both sides of my family, and as the grand- nephew and nephew of three ancestors who were superintendents at large gun manufacturing plants (in Massachusetts, Connecticut and New York), it is a wonder to me that the good men and women and young people who are responsible gun owners (and members of the NRA), and who often favor sensible gun controls right along with the general public, do not take it upon themselves to form an alternative organization to the NRA.  Perhaps such an organization could once again primarily promote responsible gun ownership, gun sports, hunting, target shooting competitions, training for new gun owners and maybe even launch a rival effort to propose sensible gun violence prevention measures to ensure the safety and well-being of all. What better time than Independence Day to embark on such an adventure?
Why don’t the hunters and sportsmen, the skeet-shooters and target-shooters step forward to say ENOUGH!  Give us back what the NRA has stolen – the artistry of a champion target shooter in the Olympics; the artistry of the gun-stock maker; the artistry of the gun-lock maker; the artistry of the collector who knows who made every gun, who designed them, even who owned them or used them. 
ENOUGH.  Take back the controls – do not allow:
·         concealed carry anywhere at any time, or
·         self-defense out of fear/prejudice/hate, or
·         big ammunition clips, or
·         semi-automatic guns or assault rifles
to define you as a gun owner just because you are an NRA member. 
ENOUGH – don’t let the those who want to protect themselves from phantom government agents and imagined government takeover of your guns become your mentors. As we do in so many other areas of our lives, let us treat licensing and registration and owner titles as reasonable contributions to the welfare and the tranquility of our nation.  
ENOUGH – don’t stay associated with the violence of guns; bring back the artistry.  Put the emphasis of government back where it belongs – on the pursuit of secure and prosperous life and happiness and well-being for our fellow-citizens, not the odious killing by guns of 117,000 people per year! 
ENOUGH – above all, don’t allow the gun rights fanatics to turn you into one more unwitting accomplice in the shooting massacres that continue to happen now on a very regular basis.  Assault weapons must be banned from sale to citizens just as other lethal weapons are not allowed for general sales. (Seen any neighbors with tanks, atomic bombs or ICBMs lately?).
ENOUGH! – it’s time to declare your INDEPENDENCE from the NRA!