The No-BS Guide to Gun Control and the Second Amendment

Photo by Sara Liberte.

So, let’s start with an agreement. Before you rush to the comments section to whine, cry or blather on about the article let’s at least agree that you will read this in its entirety. You won’t skim, you won’t stop reading at the first hint of disagreement, and for the love of god you won’t share based solely on the headline. 

Are we in agreement? Let’s begin.

In the wake of tragedy, there exists an urge to do something. Mass shootings give rise to the rare occasion of a terrible problem with an ostensibly simple solution. The solution to curbing firearm-related deaths, however, is so charged with emotion that reasonable discourse is seemingly impossible. That, unfortunately, will likely never change. It seems like neither side is willing to extend an olive branch, to communicate with the other.

Well, let Bullshido be the olive branch.

Gun Control – For Starters

So how do we tackle the problem of firearms-related deaths? Where do we even start? It seems in the wake of unimaginable horror, our collective focus fixes upon prevention of that horror. These mass shootings, however, account for a small fraction of firearms-related deaths. Suicide, criminal homicide (of the non-mass shooting variety) and accidents account for almost the entirety of annual firearms deaths in America. 

Yet, on the onset we must address these mass shootings. As a firearms enthusiast, I can feel secure in the protections afforded me by the 2nd amendment. This security, however, will not always exist. Columbine happened 19 years ago. The “lockdown” generation (credit to one of my Facebook friends for bringing that term to my attention) will become State and Federal legislators, politicians and judges. Much like how Generation X and Y have started paving the route to marijuana legalization, so too will the “lockdown” generation hail in the death of the 2nd amendment.

How can we avoid this? Easy. Firearms enthusiasts need to be reasonable, and reasonableness starts with accepting that the meaning of the 2nd amendment is not limited solely to the words in the text. The 2nd Amendment, like all fundamental rights, is subject to “reasonable restrictions”. Firearms enthusiasts have the ability to help define reasonableness, yet too often armchair justices refrain from any reasonable discourse. Dying on the cross of “shall not be infringed” will hasten the result these enthusiasts purportedly seek to avoid. Firearms enthusiasts must compromise, and that compromise means we must stop painting ourselves into corners. So too must gun safety advocates be willing to accept the inherent protections of the 2nd amendment, and the very real reasons Americans choose to own firearms. There are significant reasons why reasonable firearms owners are against additional restrictions, particularly the fact that a great deal of gun crimes are never prosecuted.

So, let’s talk about compromise. Let’s talk about reasonableness. Moreover, let’s compromise and let’s be reasonable.

In the wake of mass shootings, there are always calls to:

  1. Eliminate the “gun show loophole”
  2. Increase the age of firearms purchase
  3. Mandate mental health checks into the firearms purchase process.

Eliminating the “gun show loophole”

AR-15s at a Gun Show
AR-15s for sale at a Gun Show

The infamous “gun show loophole”. This is a scary term for a relatively innocuous occurrence, where a private party sells a firearm to another private party. Typically, all firearms sales must go through a federally licensed firearm dealer (an “FFL”).  Further, if an FFL is selling firearms at a gun show, they must still run a background check. Let’s not forget that roughly 2% of criminal firearms are purchased at gun shows.

Private party sales, in many states, do not require background checks. While this may sound terrifying to some, imagine this scenario: your Father/Grandfather/Mother/Grandmother wants to sell you their firearm. Are you still frightened? 

Gun safety advocates argue that this allows criminals to circumvent NICS (the background check database that all FFLs must check before completing a purchase). This contention may or may not be based in fact, there is conflicting evidence that reasonably supports, and refutes, that position. But why is it even an issue? It is the barest of inconveniences to drive down to a gun store and have an FFL run background. It costs around $25.00. 

As firearms enthusiasts, let’s extend an olive branch and support legislation that requires all private firearm transfers – save for inheritances – to be properly transferred through an FFL. This is a measure that results in the barest of inconveniences for us, and eases the minds of our compatriots. (If you are thinking the words “slippery slope”, please click here.)

Age of Purchase

Children with guns

The recent tragedy may likely have been avoided had the minimum purchase age been 21. While staunch libertarians will likely balk at the idea of waiting 3 additional years to exercise a constitutional right, this is still a reasonable compromise. It would impact a small minority of firearms enthusiasts. Disallowing teenagers to purchase firearms will not hail in tyranny. The irony of being too immature to drink, but mature enough to own a firearm is not lost upon us. To be honest, the irony of being too immature to drink but mature enough serve in the military is not lost upon us, either.

Unfortunately, such ironies must be tolerated in a civil society. This is a reasonable restriction on the 2nd amendment. Owning a firearm is an incredible responsibility. If society has reached the consensus that those under 21 are too irresponsible to consume alcohol, it’s reasonable to restrict all firearms purchases until 21. This would still allow the transfer of firearms between parents and their children, while keeping people like the Parkland school shooter from purchasing firearms.

Mental Health Checks

Duke Study Firearms Suicide
Duke University Study on Firearms, Suicide, etc. Link.

So here we are – mental health checks. One side rallies around the idea of it being a “mental health issue; not a gun issue.” The other says that we should implement mental health checks into the firearms purchase process. Another offshoot is the idea that government lists, such as the “Do Not Fly” list, should restrict purchase. 

First, “mental health” is a complicated beast. There are a myriad of complex and complicated disorders that vary in presentation between individuals. Banning individuals with particular diagnoses would unfairly impact the rights of millions of Americans – everyone from the teacher with ADHD to the veteran with PTSD – and would be wholly unconstitutional. This does nothing, of course, to discuss the inherent issues with forcing an individual to undergo an invasive examination for the mere purposes of exercising a constitutional right. If an individual is adjudicated mentally incompetent, however, that information must be reported to NICS. [Side note: NICS is horrifically underfunded, and a great deal of tragedies would be avoided by reforms to both reporting methods and the system itself. That, however, is an article for another time]

As reasonable people, we can agree that the right to bear arms is a constitutional right. It shouldn’t be a stretch to agree that all constitutional rights are equal. It is, after all, in the Constitution. The 2nd amendment is afforded the same protections as the 1st and 4th amendments. A handy little test we can use for the institution of a new policy is to replace the 2nd amendment with the 4th amendment. For those of us that did poorly in social studies, the 4th amendment protects you from unwarranted searches and seizures. It is your right to privacy from the government. We all like that, right?

So, do we want to have our 4th amendment rights – the right to be free from unwarranted searches – restricted based on a subjective opinion and/or a secret government list? As reasonable people, we can all agree that would be ludicrous. Truly, the notion of a Federal Agent snooping through our things because of an arbitrary and secret proceeding would be awful. 

The restriction of a constitutional right, without due process of law, is simply a compromise that is unreasonable. 

The Big Three

Its important not to lose the forest for the trees. Firearms deaths due to suicide, criminal homicide (not including mass shootings), and accidental discharge are every day tragedies that require attention.


Firearms and Suicide
Despite what the M*A*S*H* theme would have you believe, suicide is not painless

Of the roughly 30,000 gun deaths in this country, roughly 2/3rds are the result of suicide. This point is worthy of dwelling upon – one side will say that people will find ways to effect their desired ends, another will disagree.  In America, 50% of suicides are committed using a firearm. There is some evidence that supports efforts to reduce suicide by removing easy means. In the U.K., the preferred method of suicide as by suffocation via coal burning oven. After the U.K. banned coal-burning ovens, suicide rates dropped precipitously.

We need to encourage access to mental health resources. It is not enough to establish resources for individuals in distress; we must ensure that those who are at risk are actually aware of them. Crisis lines and suicide lines, lifesaving though they are, are simply not enough. We need to ensure those experiencing a crisis have more than just a phone number to call; it is imperative that treatment is available.

Criminal Homicide (not including mass shootings)

Chalk Outline Crime Scene
This is a generic picture of a crime scene. In case you thought it was street art. Which in a twisted, postmodern sense, sure, it could be. I guess.

The vast majority of the remaining 1/3rd of American gun deaths are due to criminal homicide

Save for specific measures, such as prohibiting felons and domestic abusers, the reduction of criminal homicide is a difficult beast to tackle. Some data supports the idea that gang activity accounts for a significant portion of those homicides. A reasonable assumption is that these homicides are the result of disputes regarding a wide variety of possible things, from territory to drugs.

Let’s start with a hypothetical. You are a manufacturer of gears. You verbally agree to give your neighbor $499 worth of gears. Your neighbor agrees to sell the gears and pay you with the proceeds. Your neighbor takes the gears and sells them, but decides to not pay you for the gears! 

What do you do? Easy, you sue. Well, maybe not over $499 worth of gears, but you get the picture. You could sue, however, because the Statute of Frauds would not bar enforcement of the contract! [Sorry, this is an article about guns, not contract law.]

Now instead of manufacturing gears, you grow marijuana. The above scenario plays out and guess what – you cannot sue for breach of contract. Any contract with illegal subject matter is not enforceable by the courts. Rather than suing in court, and allowing the government to enforce your contract rights, you must take up the mantle yourself. The problems become apparent, as do the solutions. Legislators should examine the social utility of opening up non-violent dispute resolution to individuals engaged in illicit business. After all, the IRS doesn’t care if you rob people, so long as you report it on your taxes.

Now, the above will necessarily lead to the end of the War on Drugs. Everyone but Jeff Sessions can agree that’s probably a good thing. We can redistribute the funding to focus on firearms crime prosecution, which is sorely needed. Intentional straw purchasers, felons attempting to purchase, and those who use firearms in furtherance of dangerous crimes should receive hefty sentences. Perhaps by making the consequences of using a firearm illegally more severe than the consequences of not using a firearm illegally, we can reduce the rate of criminal homicide.


A Christmas Story AR-15
“You’ll shoot EVERYONE’s eyes out…”

The 3rd leading cause of firearms deaths are accidents. These can range from an individual cleaning their firearm, to a child gaining access to a firearm. Either way, these are entirely preventable tragedies.

In elementary school, we listened to Eddie Eagle, who told us to stop, don’t touch, leave the area and tell and adult if we ever encountered a firearm. I don’t believe that is enough. Firearms are incredibly dangerous if mishandled, and the great deal of television, movies and video games do not portray that. Imploring children to go against their natural instincts makes as much sense as only teaching abstinence in sex-ed. Children should be taught how to safely handle a firearm in middle and high school by a competent instructor.

What’s wrong with this? A police officer could very easily bring in inert firearms (firearms with the firing mechanism and barrel welded shut) and explain the mechanics of the firearm, the consequences of misuse, and the most basic concepts – don’t point it at anything breathing and don’t put your finger on the trigger – to children. Parents would be able to opt their child out, of course, but imagine if even one child that grabs hold of a firearm remembers to keep his finger off the trigger, rather than on the trigger? Wouldn’t that life, alone, make the idea work? That, in addition to encouraging safe and proper firearms storage practices, may prevent a significant number of deaths.

So there we have it; three feel-good solutions and three goal-oriented solutions.

Where do we go from here?

Before you succumb to media-driven hysteria, keep in mind two fundamental points:

1. The 24 hour state of television and Internet news not only requires constant, explosive content to attract eyeballs and clicks, the media is almost entirely for-profit and has a financial incentive to keep you terrified, and hooked to your screens; large or small.

2. Overall violent crime has been plummeting since the early 90s, and it drops further ever year. As an American living in 2018, you are likely the safest you have ever been in your entire life.

Pinker Violence
Harvard Professor Steven Pinker, author of “Enlightenment Now: The Case for Reason, Science, Humanism, and Progress”


Derek Debus is a former Marine infantryman and Combat Instructor, professional firearms instructor and law student, though he does not speak on behalf of any of those groups. He can currently be found at [your mom’s house]

Featured Photo Credit: Sara Liberte.

Maximillian Fightmaster
Derek Debus is a trial lawyer in Arizona and a graduate of the Sandra Day O'Connor College of Law where he earned recognition as a Willard Pedrick Honors Scholar and received the designation of Trial Advocacy Fellow. Prior to attending law school, Derek served in the United States Marine Corps as an infantryman and combat instructor and worked to train law enforcement as a professional firearms instructor. Derek also serves on the Board of Directors for the nonprofit organization Academe Grove -- a 501(c)(3) nonprofit focused on providing training and resources to education institutions and first responders. Follow him on twitter @derek_debus.
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