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The “Cans” and “Shoulds” of Gun Control


Liberals, Democrats, and other advocates of gun control are so predictable.

The bodies weren’t even buried after the horrific shooting last month in the Denver suburb of Aurora, Colorado, at the Century 16 Theater in a shopping mall before some liberal pundits and politicians began calling for more-draconian gun laws.

The suspect, James Holmes, killed 12 persons and wounded 58 with a Smith & Wesson M&P15 .223 semi-automatic rifle, a 12-gauge Remington 870 pump-action shotgun, and a Glock .40-caliber handgun — all purchased legally in the weeks leading up to the shooting.

Michael Moore, who wrote, directed, and narrated the 2002 anti-gun documentary Bowling for Columbine, named after the shooting in 1999 at Columbine High School in Colorado, where 12 students and 1 teacher were murdered, appeared on CNN’s Piers Morgan Tonight a few days after the Aurora shooting. He criticized Barack Obama for not taking a firm stance on gun-control laws and said that the president needs to be the “leader” on gun-control issues. Speaking of the president’s daughters, Sasha and Malia, Moore asked, “What if it were them Thursday night? Would you stand at the microphone the next day and say I feel your pain and, you know, the existing gun laws, that’s what he said, the existing laws are enough? Is that really what you’d say, Mr. President? I don’t think so.”

Michael Bloomberg — the mayor of New York and one of the founders of Mayors Against Illegal Guns — also appeared on Piers Morgan Tonight soon after the Aurora shooting. He suggested that police nationwide should go on strike until stricter gun control laws are enacted. “I don’t understand why the police officers in this country don’t stand up collectively and say, ‘we’re going to go on strike. We’re not going to protect you unless you — the public — through your legislature do what’s required to keep us safe.’”

Sen. Charles Schumer (D.-N.Y.) has already offered an amendment to a bill that would limit the type of high-capacity gun magazine consumers could purchase. The amendment bans drums, gun magazines, and feed strips that can fire off more than 10 rounds of ammunition.

Rep. Carolyn McCarthy (D.-N.Y.) and Sen. Frank Lautenberg (D.-N.J.) have announced the “Stop Online Ammunition Sales Act,” legislation that would ban Internet sales of ammunition and require licensed dealers to report suspicious purchases of 1,000 rounds or more of ammunition.

But liberal pundits and politicians aren’t the only ones insisting on stricter gun laws.

Religious leaders from various theological persuasions have issued similar statements as well.

James Martin wrote in an opinion article for the Jesuit magazine America that gun control is as important an issue as euthanasia, the death penalty, and abortion. “There is nothing to say that more-stringent gun-control laws that could prevent such horrible crimes cannot be judiciously balanced with constitutional rights,” he also said.

Kathryn Mary Lohre, president of the ecumenical National Council of Churches, called on every level of government to “seek policies that will foster greater peace in our communities and throughout this country.” The National Council of Churches has previously passed a resolution called “Ending Gun Violence, A Call to Action,” which called on churches, government, and individuals to come together to stop gun violence.

Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism commented, “Although details about this gunman and shooting are still coming to light, this horror reinforces the need to ensure that common-sense gun-control laws are in place to help reduce such acts of violence.”

Some Republicans and conservatives — to the consternation of other Republicans and conservatives — have weighed in on the current state of gun laws.

During his weekly press conference, House Speaker John Boehner, after remarking that “AK47s are not allowed to be in the hands of criminals,” said that “if the president has proposals on other ways we can address criminals’ owning guns, I’d be happy to look at it.” When pressed on the need for more gun-control laws, Boehner replied, “I think what’s appropriate at this point is look at all the laws that we already have on the books and to make sure that they’re working as they were intended to work, and are they being enforced the way they were intended to be enforced.”

Conservative Supreme Court Justice Antonin Scalia said there are “undoubtedly” limits to the right to bear arms under the Second Amendment. Speaking on Fox News Sunday, Scalia was asked whether lawmakers have the right to ban high-capacity gun magazines without violating a person’s constitutional right to bear arms. “We’ll see,” said Scalia, who then remarked that the Second Amendment “obviously” doesn’t apply to weapons that can’t be hand-carried and that modern-day weapons such as “hand-held rocket launchers that can bring down airplanes” weren’t envisioned at the time of the writing of the Constitution.

So what can the federal government do to ostensibly prevent gun violence and indiscriminate killing such as occurred in Aurora?

Anything it wants to.

The federal government can ban online sales of guns and ammunition. It can override all state gun laws. It can limit gun purchases. It can limit ammunition sales. It can make it financially impossible to own a gun. It can nationalize the gun industry. It can limit the legal ownership of guns to military personnel and the police. It can ban certain models or all rifles, shotguns, or handguns.

That doesn’t mean that the federal government should do any of those things, only that it can do so. It has the power, should it choose to exercise it. The only reason federal (and state) gun laws are not more draconian than they are now is that it is not politically expedient.

But don’t Americans collectively own millions of guns of all calibers and capacities? Certainly, but the federal government has at its disposal more guns, more-powerful guns, and more ammunition than any individual or group of Americans could ever hope to assemble. And it has other advantages as well: M1 Abrams tanks; Predator drones; and soldiers, sailors, airmen, and Marines willing to obey orders.

But what about the Constitution?

When has the Constitution ever prevented the federal government from doing whatever it wants to do? It didn’t prevent the Bureau of Alcohol, Tobacco, Firearms, and Explosives from being created. It didn’t prevent the “assault weapons” ban. It didn’t prevent the “Brady bill.” It didn’t prevent the National Firearms Act. It didn’t prevent the Federal Firearms Act. It didn’t prevent the Omnibus Crime Control and Safe Streets Act. It didn’t prevent the Gun Control Act. It didn’t prevent the Gun Free School Zones Act. It didn’t prevent the Law Enforcement Officers Protection Act. It didn’t prevent the Violent Crime Control Act.

Sometimes the government even uses the Constitution to justify its actions, thanks to the highly ambiguous clauses it contains, such as the “general welfare,” “commerce,” and “necessary and proper” clauses.

Thus, in the 1930s it was not viewed as unconstitutional for the federal government to forbid farmers to sell wheat. And in 2012, it is not viewed as unconstitutional for the federal government to mandate that Americans purchase health insurance.

Although the federal government was formed by the states, and they put in place a constitution to limit its power, it now has an extra-constitutional existence. It is in fact the largest, costliest, and most powerful government that has ever existed.

But what about the Second Amendment?

The Second Amendment is clear in what it prohibits the federal government from doing: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Unfortunately, the Second Amendment means what the Supreme Court says it means. Just look at the two most recent Second Amendment cases that were before the Court.

In the case of District of Columbia v. Heller (2008), the Court ruled that “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” The Court then reaffirmed this opinion in the case of McDonald v. City of Chicago (2010) and further ruled that the Second Amendment also applies to the states.

But Justice Scalia also makes it clear in Heller that the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” And as Justice Alito wrote in McDonald,

It is important to keep in mind that Heller, while striking down a law that prohibits the possession of handguns in the home, recognized that the right to keep and bear arms is not a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here.

The Second Amendment hasn’t prevented the myriad of federal gun laws that were put in place during the 20th century.

So then, what should the federal government do about gun violence? The federal government should do the same thing it should do when it comes to just about everything else — absolutely nothing.

Not only should there be no ATF, there should be no federally licensed firearms dealers, no federal bans on any size or type of gun or ammunition, no federal restrictions on gun purchases, and no mandates issued to the states that have anything to do with guns.

It is in the states where any gun regulation or control measures should be passed — if they should be passed at all. To do so on the federal level does violence to the Second Amendment, the Tenth Amendment, federalism, and the Constitution itself.

There are, of course, other reasons that the federal government should do nothing when it comes to gun control.

First of all, it is still true that if guns are outlawed, only outlaws will have guns. Criminals don’t obey gun-control laws. The accused shooter in the Aurora theater massacre has been charged with 24 counts of first-degree murder and 116 counts of attempted murder. Anyone who plans and carries out such a horrendous public act knows that either he will be killed in the act or he will be caught and possibly face the death penalty. If someone is going to perpetrate such a crime, then concern about violating weapons laws is the last thing on his mind.

Second, it is also still true that more guns means less crime, as the heroic John Lott has shown in More Guns, Less Crime and The Bias against Guns: Why Almost Everything You’ve Heard about Gun Control Is Wrong. And as Lottpoints out in a recent article,

Since the federal [assault-weapons] ban expired in September 2004, murder and overall violent-crime rates have actually fallen. In 2003, the last full year before the law expired, the U.S. murder rate was 5.7 per 100,000 people. Initial data for 2011 shows that the murder rate has fallen to 4.7 per 100,000 people.

Third, according to the FBI’s Uniform Crime Report, rifles and shotguns that liberals are so concerned about are used less often in murders than knives, hands, and feet.


Fourth, it is not the job of the federal government to be concerned with security at movie theaters — no matter how many shooters kill how many people. It is up to theaters to be concerned with security. The Cinemark movie theater in Aurora, like its other theaters, posts warning signs prohibiting guns in the theater. Unfortunately, it didn’t have any armed, uniformed security guards on duty the night of the shooting.

And fifth, more and more Americans are realizing that they have to depend on themselves for security. In spite of the horrific nature of the shooting in Colorado, a new Pew Research poll shows that Americans haven’t altered their views on gun control since the shooting. The same was also true after the shootings at Virginia Tech in 2007 and at Tucson, Arizona, in 2011. And rather than Americans’ getting rid of their guns, sales of new guns are up dramatically in Colorado and in neighboring Nevada.

Instead of saying that he thinks it would be appropriate to look at all the gun laws on the books and make sure they are working and enforced, Boehner should be presiding over their elimination.

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