Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, February 16, 1992 TAG: 9202170215
SECTION: EDITORIAL PAGE: E3 EDITION: METRO
SOURCE:
DATELINE: LENGTH: Long
ON CONTROLLING GUNS MAYBE IT'S TIME TO REPEAL THE SECOND AMENDMENT
IN THE aftermath of two fatal shootings at a Norfolk high school, members of the Virginia House of Delegates could hardly wait last week to approve stiffened penalties for behavior that's already against the law: brandishing a firearm within 1,000 feet of school property, firing a gun near a school, possessing a loaded weapon on school grounds.That's like trying to put out a bonfire with an eyedropper. Young men willing to kill other young men over a sheepskin coat, as apparently happened in Norfolk, aren't worrying about legal consequences.
Odds are much longer that the General Assembly is ready for anything that might actually extinguish the flames: strict gun control. Just a few days earlier, for example, two modest gun-control bills - sought by officials and police in high-crime urban areas of Virginia - had fallen victim to an alliance of Republicans and rural Democrats on the House Militia and Police Committee.
One bill, designed to reduce the number of violent crimes of passion, would have allowed Virginia voters to decide this fall whether the state should impose a three-day waiting period on firearms purchases. The other, designed to thwart illegal gun-running, would have restricted handgun purchases to one per customer per month.
The troglodytic National Rifle Association, needless to say, put in its considerable money's worth against both measures.
Now for the surprise: While I fail to comprehend the attraction of amassing personal arsenals, the fierceness with which the "right" to do so is defended or the logic of most gun-lobby arguments, I too am leery of gun-control laws.
Let me explain.
As a policy, gun control makes sense. Substitute "drugs" for "guns," and you see how ludicrous the gun-lobby arguments can get.
If crack cocaine is outlawed, only outlaws will have crack. We therefore should make crack legal? Or, drugs don't kill people, people kill people. We therefore should make dangerous drugs freely and legally available?
Granted, guns have legitimate sporting and self-defense uses. But some narcotics have legitimate medical uses; we still try to control them.
In 1990, the U.S. Justice Department reported that 44 percent - 9,200 people per year - of murder victims from 1979 through 1987 were killed by handguns. Another 15,000 people were criminally wounded. Those figures do not include deaths and woundings from other types of firearms, nor do they include those killed or wounded by accident. Since '87, of course, the frenzy has worsened.
If it were left to me, I'd impose severe, nationwide restrictions - a ban, if need be - on the private sale or possession of all handguns, and I'd mandate licensing of all other firearms. Possession of unlicensed firearms would be a felony, with punishment at least as harsh as that for illegal drug possession. Possession with intent to distribute would carry even harsher penalties. Confiscation would be the least of an unlicensed gun-owner's worries.
At the same time, however, I recognize that many people passionately believe gun control is not simply wrongheaded, but also a violation of their fundamental constitutional rights. And when the law tries to restrict behavior that a significant share of the public thinks it has no right to restrict, the law runs into trouble.
And constitutionally, the gun freaks have a point.
The Second Amendment to the U.S. Constitution says:
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.
My inclination is to read this as a states-rights amendment (in this instance, granting states the right to have militias independent of federal armies) like parts of the 10th, rather than an individual-rights amendment like the First.
The Second, however, is atrociously punctuated - and as is so often the case with atrocious punctuation, the result is ambiguity. And so far as I can tell, the weight of the scholarly evidence is that the amendment indeed speaks to individual rights.
At the time the Bill of Rights was adopted, the militia meant virtually all free males, who generally kept their guns at home. When the Constitution speaks of "the people" in other contexts, it means individual people.
This doesn't establish an unfettered right to personal firepower.
The amendment, for example, covers only arms that can be borne, which presumably excludes heavy artillery and nuclear bombs. And militia members' weapons were subject to periodic inspection, which suggests that the amendment does not bar reasonable controls such as waiting periods. Indeed, it doesn't take much of a stretch to infer that the amendment, in addition to guaranteeing an individual right to keep and bear arms, requires that such possession be "well-regulated."
But it's hard to see how the amendment could permit a truly tough gun-control program, up to and including an outright ban on private possession of handguns, assault rifles and so on.
It's tempting to argue OK, Americans have a right to keep and bear arms - provided they're muskets. After all, First Amendment protections against government interference are narrower for later technologies, radio and television, than for "the press" of which the amendment speaks explicitly.
But if you believe - as I do - that the First Amendment ought to apply fully to all media of communication, the temptation is best left untaken. And if you take an interpretation of the Second to such absurdly literal "original intent" lengths as arguing that it applies only to muskets, for consistency's sake you'd have to be equally (and disastrously) literalist with the rest of the Constitution as well.
So I say let's clear up the ambiguity. Let's make it clear beyond question that tough regulation of all firearms, and an outright ban on certain kinds of them, is constitutionally legit. Let's adopt a constitutional amendment that would go something like this:
1. The second article of amendment to the Constitution of the United States is hereby repealed.
2. The production, importation, transportation, delivery or ownership of firearms shall be subject to such conditions as the Congress of the United States may impose. Any state, territory or possession of the United States may impose additional conditions within its borders.
That done, then maybe America could get on with the kind of strict, comprehensive, nationwide program of gun control that could work. Such an amendment no doubt would offend the NRA types. But it would help clear away the constitutional fog that envelops the issue. It might make possible the kind of gun control that would make it safe to be on American streets - and in American schoolyards.