Monday, July 07, 2014

An Unlikely Solution to the Gun Problem

It is not uncommon to hear people of all political stripes proudly boasting that the United States is an amazingly awesome place to live. They’re not wrong, at least most of the time. The problem is that there are certain areas where it’s not so much a great thing, and others where it’s downright lethal.

One of these is healthcare, which will be covered in detail in a future rant. Another is scientific denial, in which large segments of the population (primarily affiliated with the religious right) assert that, overwhelming scientific evidence to the contrary, things like evolution, climate change, and the vaccination of children are wrong, dangerous, etc. Again, to be dealt with in a future rant.

This time out of the chute I want to talk about guns. The Second Amendment. The National Rifle Association. Wayne LaPierre. Kids. Newtown. Columbine. Aurora, Isla Vista, Virginia Tech, Charleston, San Bernardino, Orlando …

As usual, the far right ramps up the paranoid screeching early and often. Unfortunately, the Supreme Court has validated that screeching in large part in the case of District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court 2008, in which the Court held that the Second Amendment protected the right of individuals to keep and bear arms pretty much wherever they wanted.

Much of Justice Atonin "Screw You, I'm Smarter Than Everybody" Scalia’s opinion rested on a minute parsing of the language of the Second Amendment. For example, he spends a couple of paragraphs expounding on the definition of “right” and whether the usage of the singular construction as opposed to the plural carried any relevant meaning (he says it does not). He devotes three paragraphs to the term “arms”, and whether or not this is limited to include weapons that were in existence at the time of writing or whether it includes modern weaponry as well (yep, it includes everything). He then addresses “keep” and “bear”.

Citing the Dictionary of the English Language 107 (4th ed.) (referred to as “Johnson” in the text of the decision), Scalia writes:

Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. [N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster)] defined it as “[t]o hold; to retain in one’s power or possession.” Id. at 2792

He wraps this up by stating “‘Keep arms’ was simply a common way of referring to possessing arms, for militiamen and everyone else. ” Id. (emphasis in original).

He then spends several pages supporting the contention that the Second Amendment protects the right to have firearms in your home, your car, while mowing the lawn, during sex, etc. He talks at length about the DC court’s decision that a gun was permissible in the home only if disassembled or with a trigger lock installed, and how this requirement nullified the intended purpose of the weapon (self-defense)

The interesting thing, though, is that throughout the thirty five page decision, at no point does he mention ownership of firearms. There’s a lot of talk about how the Second Amendment guarantees the right of individuals to keep firearms, but he rather specifically uses this word in the context of possession and control. Ownership is never mentioned.

This could be what trips up the National Rifle Association, Open Carry Texas, and all those other gun lunatics. You want to have a gun in your home? You want your son to accidentally shoot your daughter (this happened in Burkesville, Kentucky, when a five year old was given a .22 Crickett rifle as a birthday present and accidentally shot and killed Caroline Starks, his two year old sister)? You want your disturbed son to take your guns, kill you, then go on a rampage in an elementary school? Then, by all means, keep guns in your home.

You just will not be allowed to actually own those guns.

Hear me out on this

A lot of this depends on the definition of “ownership”. Ownership actually consists of three parts: possession (optional), control (again, optional), and severability (not optional at all, not by long shot). Possession and control are pretty self-explanatory. Severability (and this seems a bit circular) is the ability to permanently transfer possession, control, and severability itself to another party.

So, for example, you own a lawn tractor. You can let your neighbor borrow it, even for an extended period, without relinquishing your ownership rights. Your neighbor has possession and control of the tractor, but the financial aspect, as well as the ability to march over to your neighbor’s house and get the damned tractor back, remains with you. If, however, you sell it to your neighbor, then he or she now has ownership … even if it stays in your garage and you are the only one who uses it.

Conversely, when you register your car, you do not buy the license plates. You pay a registration fee, and the plates are given to you by the state to affix to the vehicle. If you sell the vehicle and do not transfer registration to another vehicle, you are required to surrender the plates back to the state because you never owned them in the first place. You have possession of the plates, in that they are affixed to property you actually do own (your car). You have control of the plates, because you decide (by virtue of them being attached to your car) where they go, under what conditions they are used, etc.

You do not, however, have ownership , because you cannot (legally) transfer possession and control of the plates to another person. You can apply to have that possession and control transferred to another person, but it is ultimately the decision of the issuing authority.

A literal reading of Scalia’s decision in Heller implies the same scenario for gun possession. If you are a member of the armed forces or law enforcement, and you are issued a weapon as part of your job, then your right to keep this weapon in your home is protected by the Second Amendment. You have possession of the gun; you carry it around with you. You have control of the gun; you direct its use. You do not have ownership of the gun; it is the property of the agency that issued it to you.

Based on Scalia’s reasoning, there is nothing in the Second Amendment that protects an individual’s right to actually own a firearm.

Now, before all these tricorner-hat-wearing Tea Party idiots get their 18th century undies in a twist, there is already an implied exemption for collectibles. To use the license plate analogy again, there are thousands of people who have license plate collections. You see them tacked to the wall of cheesy chain restaurants, old barns, auto repair places, and the like. These, however, are no longer valid license plates — they have been disabled, and are no longer useful for the purpose for which they were originally made.

The same approach can be used to exempt collectors of historical armaments. Individuals can actually own them — as long as they are disabled, and can no longer be used for the purpose for which they were originally made. If that means the barrel gets plugged up with epoxy, or the trigger mechanism is removed, it doesn’t really matter what the actual mechanics are. The end result is the same: a display piece.

By now some idiot is going to trot out the “if guns are outlawed, then only outlaws will have guns” trope. To which I will reply, you are absolutely correct. And this is a good thing, because then they are easy to spot. If someone has a gun, and they aren’t a soldier or a cop, then — surprise! — it’s a bad guy with a gun.

This also goes a long way toward solving the identification problem created by the National Rifle Association’s Wayne LaPierre’s assertion that “the only thing that stops a bad guy with a gun is a good guy with a gun”: apart from the bad guy and good guy themselves, who else can tell which is which? That is, until the shooting starts, at which point it should be fairly self-evident.

So if you can’t legally own a working gun, and you are spotted in public with a gun, then someone automatically calls the cops and lets them deal with it. Because, after all, they are trained in firearm use, and they are the good guys, and they have guns. This satisfies LaPierre’s Good-Guy-Bad-Guy Theorem, it reduces the number of guns on the street, it drastically reduces the number of children killed accidentally by guns in the home … but mainly, it gives the right something else to blame on President Obama. I gotta lie down.

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