ENOUGH is ENOUGH! Replace the NRA

Let us begin today with the major portion of an article from the NY Times by Nicholas Christoff that should not be missed.

"When a gunman rampaged through a high school in Parkland, Fla., three weeks ago, a 15-year-old soccer player named Anthony Borges showed undaunted courage.

Anthony, who is of Venezuelan descent, apparently was the last of a group of students rushing into a classroom to seek refuge. He shut the door behind him and frantically tried to lock it, but in an instant the gunman appeared on the other side. Instead of running for cover, Anthony blocked the door to keep the shooter out. He held his ground even as the attacker opened fire.

Shot five times in the legs and torso, Anthony phoned his father to say that he had been wounded. He was rushed to a hospital and survived. He still can’t walk — it’s unclear if that is just temporary — but fellow students say he saved their lives. No one else in that classroom was shot. 

"The world turned upside down: Armed law enforcement officers dawdled outside during the shooting, but a 15-year-old kid without any weapon at all used himself as a human shield to protect his classmates. More broadly, the Florida high school students have argued maturely for sensible gun laws, while Florida state legislators have acted like frightened toddlers, first passing a two-year moratorium on sales of AR-15 rifles and then undoing it 15 minutes later.

"And now it seems that the grown-up world is again going to fail Anthony and other young Americans. Congress and President Trump have stalled on a push to pass meaningful gun legislation that has overwhelming public support. The grown-ups are once more loitering in a crisis, leaving kids to be shot.

President Trump said that if he had been on the scene, he would have rushed into the building to confront the shooter. “I’d run in there even if I didn’t have a weapon,” he said.

Really? Even though when he is armed with the power of the White House he still doesn’t have the guts to confront the N.R.A. in a sustained way? — the White House is AWOL on the issue."

Young people from area high schools throughout the country are staging a "walk-out" from school this very day to empathsize their demands that the White House and Congress must act.  They are saying ENOUGH is ENOUGH -- they want action.  

In the face of such courage and tenacity, contrasted with the cowardice and inaction of supposed adult leaders, 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 some 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 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...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.”  (emphasis mine)

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 are the common thread uniting all of the major mass shootings in recent history. These magazines were prohibited under federal law until Congress allowed the 1994 assault weapons ban to expire in 2004.  

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.  More 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.  The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) needs to have the resources and leadership to enforce existing federal firearms laws effectively,  and to crack down on dishonest firearms dealers. ATF has the resources to perform an inspection, on average, only once every decade, 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.

When the freedoms, liberties, property or lifestyle of some threaten to cause harm, injury or hurt to many others, there have to be restrictions, regulations or limits, and penalties 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 requirements and penalties 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, relating such activity to the general areas of Domestic Tranquility and General Welfare of the people, both of which our Constitution’s Preamble sets as broad purposes of that document.

Two of the busiest departments of the federal government in regard to licensing and registration 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 potentially lethal 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 2^nd Amendment) is not equivalent to the issue of the safety, viability, potential danger, and potential defects of a product: manufactured guns.  Ownership of guns is the protected right; the gun as a manufactured product has no constitutional rights.   

Any such manufactured product found wanting in certain areas, can (and should) be restricted by government in its primary 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 motorized vehicles, 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.  Guns given to someone or exchanged on a private basis should be accompanied by a re-titling and re-registration process similar to car ownership titles.  

2)      Just as we have inspections of cars every year, we should do a similar thing for guns, but not necessarily on an annual basis.   We should also require an inspection of safety devices, and springs, 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 could 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 drive 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 a court 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 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.  My opinion is that policy and procedure should be built into a universal federal law, but let states handle implementation through a Department of their choosing for gun licensing, inspection and renewal, much as DMV does for vehicles.

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.  Rights carry with them certain responsibilities and although free speech is also a constitutional “right”, it is not unrestricted.  Yet, we cannot get a Congress (filled with Republicans who have supported 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 also destructive of all that underlies our system of contractual government, and it runs up against everything we know about guns from our own and other countries.  

An article of note, written by Fisher and Keller, November 7, 2017,  for the NY Times, asks "What Explains U.S. Mass Shootings?",  indicates that comparisons with other countries might provide an answer.  To be overly brief: worldwide research, they say, indicates that mental health, racial tensions, a violent society represented by video games, or high rates of suicide are not found to be the determinant factors they are touted to be.  What is the major factor, then?  Hear their words:
"These explanations share one thing in common: Though seemingly sensible, all have been debunked by research on shootings elsewhere in the world. Instead, an ever-growing body of research consistently reaches the same conclusion.

"The only variable that can explain the high rate of mass shootings in America is its astronomical number of guns."

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 go all-out 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 probably 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 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 now to embark on such an adventure?  My ancestors would have approved!

ENOUGH -- We must stop the NRA from pedaling the false premise that any restriction placed on guns (potentially lethal products) is equivalent to protecting the right to gun ownership.  The Second Amendment is not written to protect guns.  It is written to protect a right of people to own guns, presumably for their self-protection from tyrannical acts of a despotic government, or (when it was written) to allow for the formation of local militias if needed as the backbone of citizen reaction to out-of-control government.  The NRA loves nothing more than to lobby against all restrictions on guns because their coffers then overflow with the support of money from gun manufacturers (and gun buyers) who contribute constantly and heavily to the lobbying efforts of the NRA. 

ENOUGH -- YOU ARE BEING BAMBOOZLED by the NRA, the Supreme Court (and lower courts), plus the Congress and the White House, for as long as you buy the premise that potentially lethal weapons should have no restrictions placed upon them.  Think what would happen on our roads and highways if the same premise was applied to automobiles -- no restrictions would lead to a calamity.  We cannot allow products and services that can potentially harm and ultimately kill people to be protected from regulation and restriction without sharing some responsibility for the deaths that occur.  

ENOUGH – don’t let those NRA members 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.  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 abettor 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 of war are not allowed for general sales (seen any neighbors with machine guns, howitzers, cannons, or tanks lately?).

ENOUGH! -- We must realize that we can protect the welfare of all the People by regulations, restrictions, standards and punishments regarding the viability of a potentially harmful product, while still defending their right to ownership within the confines of protecting others from the lethal nature of that product. 

ENOUGH! – it’s time to declare your INDEPENDENCE from an NRA that falsely supports the "rights" of a product even though doing so threatens the fundamental rights, welfare and safety of our democratic society and can be used to deny the life, liberty and pursuit of happiness to other individual human beings. 

ENOUGH is ENOUGH! -- That NY Times article by Fisher and Keller provides today's conclusion, but NOT the final word, because the debate IS NOT OVER!   In fact, it may have just begun in earnest as young people act in concert with one another to demand change.

"The United States is one of only three countries, along with Mexico and Guatemala, that begin with the...assumption: that people have an inherent right to own guns.

"The main reason American regulation of gun ownership is so weak may be the fact that the trade-offs are simply given a different weight in the United States than they are anywhere else.  The United States has repeatedly...determined that relatively unregulated gun ownership is worth the cost to society.  That choice, more than any statistic or regulation, is what most sets the United States apart."

The question then becomes:  

will Americans continue to accept the killing of our children and teachers as bearable because unregulated gun ownership is worth that cost?

ENOUGH: innocent lives must be saved!

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).  On June 28, 2016, I attempted, in a two-part series, to summarize legislation and Supreme Court decisions related to the 2nd Amendment, and then to offer a perspective that continues to be shunted aside by the debate categories of gun control as dictated by the NRA.  

Since some personal health issues have kept me from writing anew, I thought I would resurrect that discussion by re-posting that series with added comments that may  be relevant to where we are now after the deadly Parkland FL shootings.   In the first part of this series, I made note of certain Major Federal Laws and Court decisions that have affected our current situation:

National Firearms Act (1934) (NFA) (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 machine guns. Exceptions were made for transfers of machine guns to, or possession of machine guns 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)

February 28, 2018 --NBC NEWS-- President Donald Trump quietly signed a bill into law Tuesday rolling back an Obama-era regulation that made it harder for people with mental illnesses to purchase a gun. The rule, which was finalized in December, added people receiving Social Security checks for mental illnesses and people deemed unfit to handle their own financial affairs to the national background check database. Had the rule fully taken effect, the Obama administration predicted it would have added about 75,000 names to that database. President Barack Obama recommended the now-nullified regulation in a 2013 memo following the mass shooting at Sandy Hook Elementary School, which left 20 first graders and six others dead. The measure sought to block some people with severe mental health problems from buying guns. 
The National Rifle Association “applauded” Trump’s action. Chris Cox, NRA-ILA executive director, said the move “marks a new era for law-abiding gun owners, as we now have a president who respects and supports our arms.” 

March 8, 2018 -- NY Times -- article by Maggie Astor re: Florida Gun Bill
What's in it? 

• Change the minimum age for all gun purchases to 21 from 18 
• Waiting period -- prospective gun buyers have to wait three days, or until a background check is completed, whichever is longer, before sale completed
• Ban bump stocks -- devices that can be attached to rifles to enable them to fire faster 
• Arm school employees -- creates a $67 million “marshal” program under which certain employees — including counselors, coaches and librarians, but not full-time classroom teachers — could be trained and armed. (The program would be voluntary.) Under an amendment successfully proposed by State Senator Randolph Bracy, a Democrat, these employees would first have to undergo 12 hours of diversity training.F
• Fund school security. The bill allocates millions of dollars to make buildings more secure and to hire more school-based police officers. However, when the Parkland shooting happened, an armed school resource officer was present, standing by the door to the building, and did not enter. 
• Expand mental health services and regulations. Florida school districts would receive state funding to provide mental health care to students. Additionally, the bill would allow the police to temporarily confiscate guns from anyone subject to involuntary psychiatric evaluation under Florida’s Baker Act. It would also prohibit gun sales to Floridians who were committed to mental institutions or deemed mentally incompetent by a judge, and would allow the police — with judicial approval — to bar a person deemed dangerous from owning guns for up to a year.

What it doesn’t do:

• Ban assault weapons. One of the biggest demands of the Parkland students — as well as many lawmakers, including some Republicans generally sympathetic to the N.R.A. — was a ban on assault weapons. 
• Suspend AR-15 sales. Once it became clear that a majority of the Florida Legislature was not inclined to ban all assault weapons, Senator Oscar Braynon, a Democrat, proposed an amendment to the gun control bill that would have halted AR-15 sales for two years. Braynon’s amendment was rejected.
• Ban high-capacity magazines. The bill does not ban high-capacity magazines, which can hold as many as 100 rounds. These magazines allow gunmen to shoot more people in less time, because they do not have to stop to reload as often. Like a ban on assault weapons, this is a proposal with widespread public support.
• Strengthen background checks. Changes to background check procedures have received bipartisan support since the Parkland shooting, but the Florida bill does not address them. Federal law requires background checks for gun sales by licensed dealers, but private firearm sales are not always subject to checks

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 unchallenged, 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.

11.  Much like the most recent Republican-led Congresses, the SCOTUS has adopted a strategy of "doing nothing" about hearing cases on the second amendment.  Needing only four justices to assent to hearing a lower court case, there has been no action on reviewing such decisions.  Refer to the recent article by Joseph P. Williams Staff Writer for News and World Report, dated March 7, 2018.  Williams raises the important question of whether this non-action is intentional.  (https://www.usnews.com/news/the-report/articles/2018-03-07/is-the-supreme-court-taking-action-on-guns-by-not-acting)
12.  Although Florida has taken a fairly bold step against the NRA's dominance and control, watch what happens next and who gets 'punished' for their wayward action!

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.