In the wake of the Tucson carnage, there has been considerable discussion here and elsewhere about gun possession and carry laws. Some have speculated that private gun possession would have reduced the death and injury toll in Tucson. Others have speculated that the toll would have increased with the presence of additional guns. What both sides have in common is that they are speculating.
As a backdrop for this discussion, let’s begin with a thumbnail look at the current state of gun law and regulation.
• Beginning with the 1934 National Firearms Act, and modified since, the private possession of automatic firearms has been effectively outlawed . It’s actually a licensing scheme and does not entirely outlaw private possession of “machine guns”.
• In 1994 the Assault Weapons Ban was adopted. It outlawed semi-automatic assault rifles, pistols and shotguns. It provided a definition for what constituted such weapons. And it outlawed the private sale of clips and magazines that held more than ten rounds of ammunition. The law expired in 2004 and has not been renewed.
• During the past decade numerous states have liberalized gun possession and carry laws. Those include Arizona which now allows both open carry and concealed carry without a permit. Alaska and Vermont have similar laws. Most other states allow, to greater or lesser extent, concealed carry with a permit. Hawaii allows concealed carry with a permit, but is so restrictive that it amounts to a virtual ban on concealed carry. D. C. and two states, Wisconsin and Illinois, do not allow concealed carry.
• Permissive open carry of firearms is currently a confusing state-by-state mishmash. Some states expressly permit people to openly carry guns. Some states expressly outlaw the practice. Some states require a permit. Some states neither expressly outlaw it, expressly allow it, or have a permit process for it. And one state, California, allows open carry without a permit in rural unincorporated areas of the state.
• The U. S. Supreme Court has ruled in two cases, Heller and McDonald, that the Second Amendment right to bears arms is an individual right and that outright bans on guns are unconstitutional at the federal, state or local level The Court left open whether specific regulations and restrictions might be constitutional.
• A clear majority of the Supreme Court would find some regulation of firearms permissible. Justice Scalia has written favorably of bans and licensing for concealed weapons. Justice Alito, in the main opinion in McDonald, wrote favorably of restrictions on guns in “sensitive places” and laws that impose “conditions and qualifications” on the commercial sale of firearms.
This is not an exhaustive recitation of gun laws and regulations currently in effect either nationally or on a state-by-state basis. There are many nuances and distinctions among the various states. The Gun Control Act of 1968, the Law Enforcement Officer’s Safety Act and the Gun Free School Zone Act are examples of federal legislation that may add additional nuance to the discussion.
Here is my suggestion. We should have a reasonable discussion of what, if anything, should be done in regard to firearm regulation. By reasonable discussion, I mean the following:
1. That the discussion take place within the parameters of existing Supreme Court settled law. It is not the purpose of this discussion to ruminate about whether the Heller and McDonald cases [overturning outright gun bans] were rightly or wrongly decided. It is the state of the law, and practical discussion requires recognition of that. Likewise to those who think the Supreme Court is incorrect in recognizing the constitutionality of certain regulation. That also is contrary to the current state of the law. For those who wish to have those philosophical discussions, please use another thread.
2. That the discussion retain a thoughtful and respectful tone. Ad-hominems, questioning the intelligence or parentage of those who disagree, or any other language designed to attack another should be replaced with mutual respect for differing views.
With those parameters in mind, here are a few possible subjects to consider, though there are surely many others that are not on this list.
• Should the Assault Weapons Ban be reinstated in its entirety?
• Should that portion of the Assault Weapons Ban that limited the number of rounds of ammunition in a clip or magazine be reinstated?
• Given the armaments of criminal gangs, should the (virtual) ban on automatic weapons purchases be lifted?
• Should armed private “militias” be outlawed?
• Should the carrying of concealed weapons be banned?
• Should the carrying of concealed weapons require a permit with certification of having completed a gun safety training course as a prerequisite?
• Should open carry be banned or require a permit with certification of having completed a gun safety training course as a prerequisite?
• Should carrying weapons be banned in “sensitive places”? This may include questions of which sensitive places, such as airplanes, schools, government buildings, commercial establishments open to the public, or places where liquor is served.
• Should there be no restrictions on when and where weapons can be carried?
• Should there be a reduction in the number of licensed firearms dealers? An increase?
• Given the ease of travel between the various states juxtaposed against states rights, what, if any, regulations should be federal and what regulations, if any, should be state by state?
• Who, if anybody, should be disqualified from gun ownership and how are such individuals to be identified? If ex-felons, should it be a lifetime disqualification? If the mentally ill, what level of diagnosis, e.g. dangerous to self or others, should be required and how should records be kept and disseminated? Should other individuals, e.g., members of anti-government militias, be disqualified? Or, should there be no disqualifiers for any citizen regardless of his/her history? There is an additional TMV piece on this subject here.
Let’s talk.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.