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
No.

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.

Suicide

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.

Accidents

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
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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14 Comments

  1. I think there’s a basic misconception about what the original intent of the second amendment was by many people (and the first case stating the right at any level affirmatively was made in 2008). The Second Amendment was as State’s Rights Amendment (similar to 10) that enabled each state to keep a standing militia for protection. The thought at the time was that a standing federal army would allow for that person in control of it (Pres) to centralize control through power, and as the original intention. The arguments start on page 778 (tried to link, but not sure if it will get you exactly there.

    https://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=390

  2. I really like your blog, it’s very informative and I actually really like the font :)! Keep up the good work, cheers!

  3. While the compromises you’ve listed can be considered reasonable, my question is where is the exchange for my “reasonable” concession? Can I have access to purchase of post-1986 fully automatic weapons (subject to same background checks and licensing that exist for pre-1986) or national concealed carry reciprocity? Perhaps suppressors can be removed from restriction, or SBR’s?

    We’ve been making “reasonable” concessions since 1927 in return for nothing. The other side acts like we owe them a concession simply because they demand one and then complain that we won’t compromise. What we have now IS a compromise. They want something more, fine, let’s make a deal. If they’re not willing to deal, then neither am I.

  4. Erik… many thanks for this citation… been looking for something like this for a while. However, in presenting this as the meat of the 2A, I think you risk being simplistic and quoting it out of context. If you read on, you’ll see that Elbridge Gerry (the guy for whom for the term ‘gerrymandering’ is named!) has ideas about the 2A that are rejected–died for lack of a second. And what nobody explicitly refers to is the context of slavery, the real source of the eventual compromise language about
    ‘the security of a free state…’ free from slave uprisings.

  5. Regarding your 3 “compromises” – 1. Maybe
    2. No
    3. No

    People at the age of 18 can join the military and handle the most power military equipment in the world. It makes zero sense to raise the age necessary to buy a gun. If anything the Drinking age should be lowered

    If somebody is deemed mentally incompetent then they shouldn’t even be free on the streets without at least a caretaker. This is actually a slippery slope (despite your attempt to discredit that concern, even though you never actually attempted it) because anybody can add on different “illnesses” to restrict someone from buying a gun.

    This isn’t a 2nd amendment advocate trying to compromise with the other side, this is someone from the other side pretending to be a second amendment advocate.

  6. A simple question: Why do automatic firearms require an ATF Form IV submission and approval as a result of the National Firearms Act, originally enacted in 1934?

    A simple answer: Gangland crime of the Prohibition era, such as the St. Valentine’s Day Massacre of 1929, and the attempted assassination of President Franklin D. Roosevelt in 1933 were the impetus.

    Basically they realized tommy guns were getting civilians killed, so they made them harder for anyone to get. Why not require the same ATF form submission on high caliber, high capacity (over 10rnds) semi-auto rifles as well, since they are now creating the same impact on society as the thompson machine gun did in the 1920s-30s?

  7. First – the presence of a logical fallacy don’t mean an idea is wrong, just that it merits further review.

    UBCs are an interesting idea until you live in MA, where there are firearms that are legal to possess, but not for an FFL to transfer. Then it’s not as simple as driving to your local shop and tossing your money on the counter. Suddenly, anyone that owns an off-list item is denied the value of their real property. This is not a solution. Further, the registry of transfers here is a de facto registry of firearms, except that it’s terribly maintained. Know what’s scarier than an extrajudicial list of persons subject to increased government scrutiny? Same said list that isn’t accurate.

    There’s no reason that an adult should be denied access to any human rights. Voting is one of the most powerful things a person can do – if you’re trusted with that, and with signing contracts (including at the value of their lives) they should be allowed to purchase and possess tools of self defense. To raise the minimum age to purchase should require doing the same for the legal definition of adulthood.

    Suicide is a social problem of greater complexity than you let on. When Canada implemented handgun regulations, their suicide by firearm was almost perfectly replaced by hanging. There’s evidence that women will almost always find another means, while men may be less likely. Starting by reducing the shame we put on people for their thoughts and feelings might be an appropriate beginning, though.

  8. Erik misconstrues the purpose of the militia, taking the “select militia” side of the argument–i.e. a militia appointed and under the direct control of the government–as opposed to a militia consisting of “the hands of the yeomanry.” (http://www.famous-quote.net/quotes-on-the-militia.html) The concerns regarding select militias are well explained here:

    “The Framers feared two things: large standing armies and select militias. A select militia was an armed group formed not from the entire population of a jurisdiction by public notice, but selected by some method that might make them unrepresentative of the community, and a threat to lawful government or to the community. A regular standing army or police force is always a select militia, and it may serve the will of those in power, and be used against the people. Therefore, the Framers intended that the militia should always be able to prevail over the government and its armies or select militias. They did not trust those in power to voluntarily refrain from corruption or the abuses that attend it. The Militia was seen as one of the checks on the power of government, like division of powers between the central and state governments, between the executive, judicial, and legislative branches, and between the two houses of the legislative branch.” http://www.constitution.org/col/5508_col.htm

    It should be noted the that the United States Code defines the term militia as follows:

    10 U.S. Code § 246. Militia: composition and classes

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

    (https://www.law.cornell.edu/uscode/text/10/246)

    As has been found in recent Supreme Course cases the “collective right” argument, which construes the second amendment to only apply to government appointed armed groups (i.e. select militias) misconstrues both the history of the second amendment and the intent of its framers. In doing so the Supreme Court “incorporated” the right to keep and bear arms as an individual right instead of one the government doles out to favored groups, which ought to have ended the collective right argument, particularly as few argue that other elements of the Bill of Rights such as free speech or trial by jury are collective rights as the same sorts of language was used to construct them.

  9. I’d love to see responsible non-ownership discussed more frequently. I don’t keep firearms in my house because I live with people that should not be in a position to access them. I fully support the exercise of the 2nd Amendment but I choose not to do so myself, not out of fear or ignorance based on a rational evaluation of my situation.

  10. First of all, that picture is of my daughter about 10 years ago. Photographer Oleg Volk will be sending a takedown notice very shortly. If you’re unable to find free or original pics, you need to pay royalties, especially if you wish to look professional.

    Second:

    “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. ”

    National Firearms Act of 1934. Gun Control Act of 1968. Hughes Amendment of FOPA, 1986. Import bans. More import bans. Yet more import bans. A redefinition of an inert piece of plastic as a “machine gun.”

    We’ve been more than reasonable. Gun control has failed.

    At this point, the reasonable approach is to eliminate every single one of those laws that we all seem to agree have not stopped any crimes, and start over.

    There was no need to read the rest. When you wish to be educated on the subject, feel free to contact a subject matter expert, such as myself. Your uninformed opinion is irrelevant.

  11. In response:

    ehkay40s3v3n (@phycobob) 9 April, 2018, 16:21
    A simple question: Why do automatic firearms require an ATF Form IV submission and approval as a result of the National Firearms Act, originally enacted in 1934?

    A simple answer: Gangland crime of the Prohibition era, such as the St. Valentine’s Day Massacre of 1929, and the attempted assassination of President Franklin D. Roosevelt in 1933 were the impetus.

    Basically they realized tommy guns were getting civilians killed, so they made them harder for anyone to get. Why not require the same ATF form submission on high caliber, high capacity (over 10rnds) semi-auto rifles as well, since they are now creating the same impact on society as the thompson machine gun did in the 1920s-30s?

    ~~~

    Almost no one was killed with Thompsons. And it’s a Form 4, not a Form IV. I have several such weapons. The wait can be up to 14 months, and doesn’t cover anything not covered in the NICS instant check.

    It was a scare tactic. Short barrels and suppressors were added to the list out of racism–poor blacks denied hunting licenses poached for food with muffled, easily transported weapons.

    They attempted to add handguns and failed, because extremists, racists, and liberals (but I repeat myself) always go for the big power grab.

    Self-loading firearms exist since the 1880s, closer to the Founders than to us, and were in common availability in 1934, yet were not added then.

    There is no reason to add 150 year old technology to the scary banned list.

    Thanks for admitting, however, that you will simply keep banning guns until none are left, even while admitting such laws have been ineffective.

    This is why most of us refuse to be “reasonable.” Compromise requires exchange, not piecemeal surrender.

    For the record, I’m an immigrant and a retired veteran. We don’t need your kind in my adopted country. There’s plenty of nations with the gun control you seek. Feel free to move to one. I moved here for the culture I liked. I refuse to be forced to accept yours.

  12. […] The second episode of Bullshido’s “The Art of Fighting BS Podcast” is a topic that comes in the wake of what seems to be a spike in mass shootings in the last few weeks.Joining us to discuss the topic is former Marine combat and weapons instructor and soon-to-be graduate of the Sandra Day O’Connor College of Law, Derek Debus; who is also the author of our “No-BS Guide to the Second Amendment and Gun Control“. […]