Monday, June 27, 2016

No, Virginia, Gun Ownership Is Not Protected By The Constitution

Okay, so I've been hearing a lot of statements from gun-rights folks lately about how the Second Amendment of the United States Constitution guarantees the right of American citizens to own firearms.

It does not. Allow me to elaborate ...

In Heller v. District of Columbia, Antonin Scalia, a justice sympathetic to the gun lobby if there ever was one, wrote the majority decision that stated that keeping and bearing firearms as a means of self-defense is a Constitutionally protected right (he got this wrong in a big way, in my opinion ...). So even though I wholeheartedly disagree with his opinion, and I will provide my own analysis to support this elsewhere, the sad fact is that this is the law now.

In his decision, he expounded at great length about the definitions on the words "keep" and "bear" in the context of the Second Amendment (I'm not going to bore you, dear reader, with all the details; if you want to read it for yourself you may do so here). To summarize, his opinion hinged on the following definitions:

  • keep: to have in one's possession, to have control over an object.
  • bear: to direct the use of an object.

Interestingly, neither of these definitions addresses the question of ownership. This is not a new concept; virtually all of us live with this every day. Consider, for example the license plates on your vehicle. You "keep" the plates in that you have them in your possession. You "bear" the plates in that you direct how they are used (mounted on your vehicle, possibly a Red Sox license plate frame if you are a decent person, a Yankees license plate frame if you are not). However, they do not belong to you, they still belong to the issuing authority.

So what does ownership entail, if not possession? After all, there's an old saying that "possession is nine tenths of the law." But what of that other ten percent?

Ownership, while it may imply possession, carries with it the legal concepts of severability and transferability, which are closely related (and, in many cases, synonymous), and absolutely essential to the idea of owning anything. For purposes of this discussion we will consider the terms to be interchangeable and will use the term "transferability" from hereon.

"Transferability" is the legal ability to transfer ownership to another entity, be it an individual, an organization, or a governmental body. For example, let's consider the owner of a bookstore. While she may not own the building in which the store is located, she does "own" all the inventory -- that is, she bought the books, and if she was so inclined she could just say the hell with it, close up the shop, and have an amazing personal library. Because she owns the books, she has the legal right to transfer ownership to another -- also known as a customer. I'm not going to get into the economic justifications for setting prices an all that; suffice it to say that she has the ability to relinquish title to every book in the store and transfer that ownership to another.

In fact, she may not ever take possession of the book. Consider a customer who comes in and places an order for a book that is out of stock. She orders the book from the publisher and directs that it be delivered directly to the customer. The fact that she has never had the book in her possession does not diminish her ownership status in the slightest. Granted, she may own it on paper only, and for a very brief period at that (because the customer paid in advance in this case), but she is still owner of the book for a short time because the publisher sold the book to her, not her customer.

This same principle can apply to firearms in the United States. Under the Second Amendment as interpreted in the Heller decision, citizens have the right to keep firearms in their possession, and they have the right to bear them (that is,to direct their use). However, and this is important, the do not have a Constitutionally protected right to own a weapon. This doesn't mean that it is now illegal to own a firearm, far from it. All it means is that, when it comes to ownership, it is regulated at the legislative level, not the Constitutional.

This is a very important distinction, and may provide an opportunity for supporters of gun control to gain some measure of regulation. If legislation can be introduced that places reasonable restrictions on gun ownership, then perhaps we can see a drop in the number of firearms being sold to people who only wish to do harm.

However, this is not going to happen as long as the Second Amendment is used as a shield by the National Rifle Association and other pro-gun groups, which is why we need to repeal the Second Amendment. It is archaic, outdated, and was written in the days of breech-loaded matchlock rifles that could, when in the hands of an expert marksman, fire up to two rounds in a single minute, and whose accuracy beyond twenty five yards was only marginally better than shooting with your eyes closed. It no longer applies in the twenty-first century, with firearms capable of hurling chunks of hot lead with a high degree of accuracy for hundreds -- sometimes thousands -- of yards, and doing so in bursts of up to 1,500 rounds per minute (the German MG 42 machine gun), and in the case of Gatling-style guns (with multiple barrels), rates of up to 6,000 round per minute have been achieved.

6.000 rounds per minute. That's 100 rounds per second.

Please sign and share the petition at https://wh.gov/isJZz.

A Path Forward

The Democratic primaries are heating up, and I am already seeing purity tests of various stripes filtering across the intertubes. Bernie ...