in 2008, the Supreme Court declared suddenly that "the American people have considered the handgun to be the quintessential self-defense weapon," and by that reasoning ruled that any law "banning [handguns] from the home... would fail constitutional muster."
Politicians know this – they know that banning handguns is pretty much impossible for them to accomplish without actually forcing through a repeal of the second amendment. But they know that the public is clamoring for decisive action right now because of the recent tragedies. So they go for what they can accomplish without running afoul of the Supreme Court's interpretation of the second amendment – assault-weapons bans.
Seeing as how the Second Amendment confers the right to bear arms to "a well regulated militia," if you absolutely must own a gun, then you are required to join a localized militia under state or federal regulation. This could be the existing National Guard or individual State Defense Forces (both of which are defined as militia under US law), or one created by legislatures. As members of the militia, you are required to register your firearms with them and are subject to federal laws regarding the training, physical and mental competency, and judicial requirements of the applicable militia service. If you fail to meet the requirements of training, or are found to be in violation of the tenets of the militia that would result in a discharge, you are removed from the militia and required to hand over your firearms until such time as you can prove capable of meeting the requirements again.
What this means is: You fail to attend all required courses for basic training and regular annual drills/training with a passing mark, you're out and you hand your firearms over. You fail to meet physical and/or mental competency requirements*, you're out and you hand your firearms over. You cause the injury or death of someone through accidental or intentional misuse, you're out and you hand your firearms over. You commit a serious misdemeanor or felony, you're out and you hand your firearms over. You commit alcohol or legal but controlled substance infractions while in the possession of a weapon, you're out and you hand your firearms over. If you commit a hate crime or are found to be a member of a group regularly advocating violence towards people based on race, religion, nation of origin, perceived gender, gender identity, sexual orientation, or disability, you're out and you hand your firearms over. If you fail to heed the orders of a commanding officer of the militia in the course of being called to or undergoing the duties of the militia, you're out and you hand your firearms over. If you fail to report to any basic duty assignment without a valid medical, judicial, or educational reason (and you can not be fired for militia duty), you're out and you hand your firearms over. If you you are found to have illegally modified your firearms or to have obtained weapons for which you do not have the additional licensure requirements (such as machine guns and Destructive Devices per the NFA), you're out and you hand your firearms over.
Those who are dismissed from militia service for any of the above reasons and have had their firearms confiscated shall be allowed to attempt to rejoin the militia after a set time applicable to their infraction or failure to meet requirements. Anyone dismissed from militia service found purchasing or owning unregistered firearms, or found to have committed any infraction listed above, or operating a firearm not registered to them, is subject to financial and judicial punishment as well as an extension of their period of dismissal. As this is a requirement, any service in the militia is compensated at a rate similar to extant National Guard or SDF rates based on Drill, Annual Training, or Active Duty services at completion. Service benefits, including health care, education, and any retirement (if applicable) are included as long as you serve competently and unless you commit any of the above infractions, at which time they are removed along with your firearms.
* For those with pre-existing physical disabilities, any or all relevant physical requirements will be waived, but no less than annual training and testing on the operation of a firearm will still be required, with provisions for doing so at-home or approved facilities for convenience.
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose... Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
Well – that's a neat neoliberal formulation of it
As, for example, if you want a really low-failure-rate method of committing suicide.
...no amendment received less attention in the courts in the two centuries following the adoption of the Bill of Rights than the Second, except the Third (which dealt with billeting soldiers in private homes). It used to be known as the “lost amendment,” because hardly anyone ever wrote about it. The assertion that the Second Amendment protects a person’s right to own and carry a gun for self-defense, rather than the people’s right to form militias for the common defense, first became a feature of American political and legal discourse in the wake of the Gun Control Act of 1968, and only gained prominence in the nineteen-seventies.
Psychiatrists first started focusing on how much the ready availability of lethal means affected suicide rates after a fortuitous experiment in England. When the country switched its heating from coal to natural gas in the 1970s, suicide rates plummeted, because the fumes were not as deadly; gas has a far lower carbon monoxide content. Sri Lanka developed the highest suicide rate in the world in the 1980s, following the introduction of pesticides on a mass scale. Once the government removed the most toxic compounds, like Paraquat (lethal in 70 percent of cases) suicide rates dropped 50 percent, though the number of attempts dropped by less.
Studies show that once a convenient lethal method is removed, many do not seek other options. “If people go to the Golden Gate Bridge and encounter a barrier, they don’t go to the Bay Bridge and try there,” Dr. Reidenberg said.
INDEED, many people who commit suicide are more momentarily desperate than classically depressed, experts say. In Sri Lanka, “pesticide was often taken after an argument with a parent or a spouse,” said Dr. Gunnell, who studied that epidemic.
Up to 50 percent of people who attempt suicide make the decision to do so within minutes to an hour before they act, studies have found. They may be depressed or have contemplated suicide, “but the final decision comes very quickly, and there’s often ambivalence up to the moment,” Dr. Reidenberg said.
If Mr. Reid considers only the straw purchasing measure, it is likely that senators who favor gun rights will offer a flood of pro-gun amendments, many of them likely to pass the full Senate, which could essentially turn a bill intended to strengthen gun regulations into one that enhances gun rights.
As Wonkblog’s Brad Plumer reported, “by the late 1980s, surveys from the Bureau of Justice Statistics found that some 80 percent of those who used guns in crimes bought their weapons from the secondary market.”
The idea behind universal background checks is to extend the exact same process used when you buy a gun in Wal-Mart to all gun transactions. So, gun shows would now have a booth that does background checks. Private sales between two friends, or two people who decided to make a deal on Craigslist, would require the buyer to complete an online background check. Background checks for everyone!
Democratic Sen. Chuck Schumer and Republican Sen. Tom Coburn have been negotiating this issue, and on most of it they’ve very, very close to a deal. But there’s one sticking point: Record-keeping. Schumer wants a record kept of the background check. Coburn won’t agree to anything of the kind.
The case for record-keeping is twofold. The first argument is compliance. If we’re not keeping records, how can we be sure anybody is complying? Coburn’s argument is that federal agents can conduct stings in which they try to buy guns without completing a background check and then bust sellers who aren’t following the rules. Schumer’s office is skeptical that Congress will appropriate enough money for stings on the scale required to make this work.
The second argument is that the records are needed so law enforcement can trace the history of guns that end up in crimes. “Sales records are required for trace data,” explains Susan Ginsburg, who served as senior adviser for firearms policy coordination during the Clinton Administration. Without it, ”you lose the ability to trace the firearm past the first seller.” California forces the collection of this data, and there’s solid research showing it’s helped investigators trying to track the firearms used in crimes.
The argument against this kind of record-keeping appears to be a bit hazy. There’s a principles-based claim, which is that gun ownership is a constitutional right and, therefore, onerous burdens on law-abiding citizens are simply wrong. That’s a bit hard to square with the fact that most gun sales go through exactly this process today and that guns are perfectly easy to get.
Prominent Republicans will admit, off the record, that they’re catering to fear and paranoia that the NRA has whipped up about the creation of a national gun registry that would, eventually, be used to take away everyone’s guns. Democrats protest that the government wouldn’t be collecting any of this information, much less storing it. Instead, gun shops and private dealers would collect and keep this information, just as they do now — the feds wouldn’t access any of it unless they were investigating a crime.
The argument that we don’t need expanded background checks because “criminals don’t respect the law,” i.e., they won’t submit themselves to a background check, is a common one among the “gun rights” crowd. But this argument is self-refuting. It is actually an argument for expanding background checks, not against it. Here’s why: The loophole in the background check law — which the new proposal would close — is actually a leading reason why those who are prohibited from having guns are able to continue not “respecting the law.” The loophole in the law is a key reason they are able to get guns while not submitting themselves to background checks under the current system.
If the loophole were closed — and private sales were subjected to a background check, which law enforcement officials and other experts believe will severely limit the ability of criminals and/or traffickers to get guns — it would, in the view of those experts, become a lot harder for criminals not to “respect the law.” That is an outcome Boehner presumably wants. The fact that criminals don’t “respect the law” is why we need expanded background checks in the first place.
The broader point here is that there’s no coherent policy argument against expanding background checks. That’s why Boehner accidentally admitted that background checks are good policy. That’s why the argument that we should not tighten up the law because criminals don’t obey laws is self-undermining. And that’s why opponents continually resort to the false claim that expanding background checks will create a “national gun registry,” when the law explicitly prohibits that outcome.
Opposition to keeping records of sales — which are currently kept by gun sellers and would not create any national registry — is currently the excuse Senate Republicans are using to withhold support for this proposal, despite its extraordinarily broad public support.
Issue a Presidential Memorandum to require federal agencies to make relevant data available to the federal background check system.
Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system.
Improve incentives for states to share information with the background check system.
Direct the Attorney General to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks.
Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun.
Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers.
Issue a Presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations.
Release a DOJ report analyzing information on lost and stolen guns and make itwidely available to law enforcement.
Some states have cited concerns about restrictions under the Health Insurance Portability and Accountability Act as a reason not to share relevant information on people prohibited from gun ownership for mental health reasons. The Administration will begin the regulatory process to remove any needless barriers, starting by gathering information about the scope and extent of the problem.
Law enforcement should never be put in the position of unknowingly returning a gun to an individual who is prohibited from having it. Currently, when law enforcement must return firearms seized as part of an investigation, they do not have the ability to conduct a full background check on the owner. The Administration will propose regulations to ensure that law enforcement has access to the database needed for complete background checks.
In East Oakland, as in many rough city neighborhoods across the country, gun-related crimes happen daily. Citywide, police recorded an average of 11 gun incidents a day last year, from armed robberies to killings.
Upshaw runs a new network of neighborhood elders called Men of Influence. The group seeks to connect with Oakland youth and prevent violence before it can start, both by mediating disputes and serving as role models to the often fatherless kids.
And he is looking for others to join him -- men who know the streets, men who’ve gone to jail. Most importantly: Men who do not snitch.
The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.
We think it clear that there are no sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.
Courts may not inquire into the motives of Congress in exercising its powers; they will not undertake, by collateral inquiry as to the measure of the regulatory effect of a tax, to ascribe to Congress an attempt, under the guise of taxation, to exercise another power denied by the Federal Constitution. P. 300 U. S. 513.
The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the "Bill of Rights," were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;
Of course, "[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times." United States v. Carver, 260 U. S. 482, 490 (1923).
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