Freedom to Bear Arms

United States Gun Laws

If you are like me you mostly take conversations about gun rights in the US with a grain of salt. You take them in stride and mostly worry with making sure you get your job done and keep your family provided for. In the heat of the moment we find ourselves in, I’ve found it taking up more of my time. After all, many people are making big claims of evil doers taking away our guns. So what is really true? What does the 2nd Amendment really do, and what laws limit or control that freedom?

The Constitution

The Constitution of the United States of America is often referred to by armchair scholars like myself when gun rights are discussed. So what does the Constitution actually have to say? With the caveat that I am not a Constitutional Scholar, there is a fair amount of documentation around what the Constitution says and how it has been interpreted in the courts.

Second Amendment

The Bill of Rights includes the 2nd Amendment which states that “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.” If it were left at that, you might wonder where you sign up for the militia so you can get your firearms, right? As it turns out, this amendment has been challenged in court by a number of folks who have driven the Supreme Court to make a few decisions about what is actually said in the language of the document.

Stare Decisis

We have the concept in the US of “Stare Decisis”, a Latin phrase which means “stand on the decisions”. This is where “case law” comes from. It means if a court interprets the law in a certain way and applies it to a decision, another court is obliged honor that decision. According to the Library of Congress, in a 2008 decision, the Supreme Court ruled the 2nd Amendment protects the right of individuals to bear arms for lawful purposes. They include self defense, without any requirement to be involved in a militia. The ruling determined that two District of Columbia provisions that banned handguns and required them to be kept locked or disassembled at home are unconstitutional.

McDonald v. City of Chicago

I’ll also call attention to another ruling from 2010 by the Supreme Court. In previous years, the court determined the 2nd amendment was not applicable to states via the 14th amendment. In McDonald v. City of Chicago they reversed that opinion.

14th Amendment?

When slaves were freed, there was nothing protecting them or their rights. There was no provision for equal protection under the law, meaning that states were free to create “black codes” which are essentially laws that applied to blacks but not whites. The 14th amendment takes care of that by establishing a framework of protections and putting guard rails around how much of an individuals rights can be curtailed by states. A good summary of the amendment is available here, and I make no apologies for using a source geared towards children. I’ve seen you guys argue. You need to learn, so simple is fine.

The 2010 McDonald v. City of Chicago Supreme Court ruling established that the 2nd amendment applies to state governments. In truth, the amendment always applied to the Bill of Rights, but for some reason previous to this decision, courts had excluded the 2nd Amendment from their interpretations.

Outside the Constitution

The fact our constitution protects gun rights is a foundation upon which other gun laws must be built. There are always strangely absurd arguments made. Remember the arguments that people would marry dogs next if we legalize gay marriage? I remember them interviewing someone who claimed to be married to their dog on the radio. Now I hear people arguing that gun control is good because otherwise we would have people building nukes in their basement. People who make this type of argument are not nuclear engineers, for sure.

The reality is there are laws in place outside the Constitution in the United States controlling small arms, and they are mostly effective and good laws. So what are they, and how do they work? First, don’t go reading the NRA website trying to figure this out. They have a singular focus, and while I don’t fault them for it, they do not always provide adequate information if some of it seems to disagree with their mission statement.

Next time you find yourself in a debate about how to handle gun laws in America on your favorite social media platform, you should at least know about the following few federal firearms acts. This is nowhere near exhaustive, but for the armchair legal analyst, these are the minimum you should be familiar with.

National Firearms Act (1934)

This act represents a real and comprehensive gun grab by the United States. Here’s where tax and registration was imposed on the manufacture and ownership of real assault weapons. Machine guns are described here in fairly straightforward detail along with short shotguns, heavy weapons, and explosives. The next time someone insists a 19 year old wandered into a gun show and bought a loophole machine gun, you now know that story has some inaccuracies in it! The NFA prevented anyone from buying a machine gun without being on a very short list and paying a hefty tax.

Federal Firearms Act (1938)

This act enacted the requirement for those who sell firearms to maintain a Federal Firearms License. Convicted felons lost legal access to firearms with this act. The FFL has since been used as a vehicle to impose other subsequent laws for the regulation of firearms commerce.

The 1960’s

In the 1960’s the federal government restricted handgun sales to those under 21 years of age. In a seemingly complex array of acts, congress also limited the interstate trade in firearms. This is why if you buy from gun broker, it has to be shipped to an FFL dealer.

The 1980’s

In the 1980’s it became illegal for anyone to create, ship, sell, or possess a gun with less than 3.7 ounces of metal content.

Firearm Owners Protection Act (1986)

This one actually limited automatic weapons manufactured after it was enacted. I call attention to it directly because it augments the effects of the original NFA of 1934. The ATF has to approve all transfers of automatic weapons regardless of date of manufacture. Essentially this act put automatic weapons only in the hands of police and military personnel. Plenty of people will become familiar with the NFA and/or read some outdated material suggesting a regular schmoe can actually own a machine gun if he pays the taxes and gets approved. This act curtails that.

Gun Free School Zones

In 1990, you lost the right to bear arms in a school zone. That’s right, a mere 28 years ago it was technically legal for a licensed gun owner to carry on a school campus.

The Brady Bill (1993)

This is the origination of background checks for “most” firearms purchases. There are certainly exceptions, but this law is where regular firearms not controlled by other acts are restricted based on background checks.

The 2000’s

In 2005, a law was enacted protecting dealers of firearms from being held liable for negligence when their products are used to commit crimes.

Our Debate About Assault Weapons

Right now there are a multitude of people calling to ban AR-15 rifles. These have been highlighted in some of the worst massacres recently and so it is natural to want to take these off store shelves. I agree with the people calling for this change in spirit, but not in letter. It turns out we have a bit of experience to draw from in the department. Let me first tell you that while my views may seem somewhat liberal overall, you cannot trust what folks like Dianne Feinstein say anymore than you should take what the NRA says at face value. At the end of the day all of these folks have an axe to grind and part of your distrust of them should be rooted in understanding what it is they are driving at.

The NRA is simply a powerful lobby. They create a lot of money through memberships and agreements with people and companies, and they use that money to drive policy in Washington to the benefit of those they represent. They are wildly successful because they peddle fear by convincing people their basic human rights are under attack by the “left”. In edge cases, that is probably true, but in edge cases the right wants an army to destroy the left, so again, a grain of salt! Even though I do not like their extremist views, at the end of the day I want their voice present. Our politicians shouldn’t boot lick to the NRA though.

I suppose I shouldn’t pick on Feinstein but she has a brand. It might be easy to think she is benevolent but her political life survives and dies on her protecting her brand of fear uncertainty and doubt. Her money comes from the pro-choice lobby and lawyers. If she were trustworthy she wouldn’t cite evidence she knows you won’t read to suggest the 1994 AWB was a success when the reports she cites say they are inconclusive. Dianne has repeatedly demonstrated her inability to understand the subject matter she is working with. For example she recently claimed arming teachers with handguns wouldn’t work because being shot by a handgun was like getting shot with a nail while being shot with an AR-15 was like being shot with a coke can. I’m not even sure how to understand that analogy. I think it had to do with bullet speed or something? Again, she has a basic and fundamental ignorance she holds onto tha tmakes her arguments loose merit.

1994 Assault Weapons Ban

I am amazed by how many people don’t remember that we’ve already banned AR-15’s once. We did! The 1994 ban was signed into law by President Bill Clinton. Many people hold it up as a complete failure, but I believe it is more nuanced than that. We have done an excellent job of keeping machine guns from being manufactured and delivered to citizens. They do fall into criminal hands, but it happens far less than you’d think. Additionally, there are still automatic weapons owned by private citizens. Those weapons are not used in crimes either. So why was the 1938 ban of machine guns successful and the 1994 AWB less decisively so? There are a lot of reasons, I believe.

What is an Assault Weapon?

The question of what constitutes an assault weapon is actually a big driver into why more recent gun laws fail. Take as an example that people are calling to ban AR-15’s as assault weapons. The AR-15 is a semi-automatic rifle. This means it is designed to fire a single round with a single pull of the trigger. The platform was actually developed by ArmaLite in the 1950’s. The AR in AR-15 doesn’t stand for “Assault Rifle” or “Automatic Rifle”. They look like the M-16, which is a select fire machine gun. Externally to a layperson, a typical AR-15 appears similar to select fire weapons. All you have to do is dress it up with an appropriate stock, whatever fore end you want, sites or optics and poof! It can look just like an M4. Internally there are some significant differences intended to make it very difficult to convert an AR-15 into a machine gun. In fact, as soon as you drill a hole for the M-16 seer, you’ve committed an offense. Simply owning a seer from an M-16 is a violation of the NFA and/or FOPA.

So the AR-15 is a semi automatic rifle, and it is indeed used as a sporting rifle all around the country. I agree there are those who have them just to try to look cool or intimidating, but in the end, these are regular sporting rifles. Understanding this and accepting it would help legislators focus their powers on regulations, if necessary, that would actually keep crime from increasing rather than creating criminals out of law abiding gun owners.

The AWB expired

The 1994 provision we refer to as the Assault Weapons Ban had a 10 year timer on it. Unfortunately 10 years isn’t long enough for the effects of a law to truly be understood. Crimes involving other weapons not described in the AWB increased at the same time that crimes involving those described declined. Whatever we do in the future with respect to any similar ban should be allowed to continue and not die without due process. Feinstein will cherry pick data from reports about the AWB and claim it works, but if you read the rest of those reports they clearly detail how inconclusive the data was because other crimes increased at the same time.

What AWB replacements are being proposed?

Frankly, I don’t know. There is definitely political will to pass a new ban, and I am assuming they will do just that. I would challenge you no matter what side of the debate you fall on, even if it is right smack in the middle like me, you should educate yourself on the subject. While trying to learn the legal side of it is hard, learning about firearms is easy. There are clubs and many instructors around that can help you. Take a hunter safety course. The more you know about firearms the better you will be able to navigate the concepts you hear being thrown around by politicians. You’ll realize how dumb some of them sound once you understand the difference between a clip and a magazine.

I also feel cheated when politicians shoot for banning firearms just because they are popular. I would much rather keep children from buying them. Why not match rifles to handguns and stop selling them to people under 21? In fact, why not wait until 25?

I have a similar take on the concept of banning “high capacity magazines”, detachable magazines, bullet buttons, and other gimmicks intended to slow down the rate of fire or duration of shooting periods. Even still I believe they should ban tools intended to unnaturally increase the rate of fire of semi-automatic weapons, like bump stocks.

Since we’ve systematically created an environment for bad things like shootings to happen, I firmly believe our focus should be on turning that around. We need mental health facilities. Their rotting hulks should be cleaned up and brought back into full swing. We also need to fund and run public schools as if they could work for everyone rather than bleeding them dry because we have convinced each other they are broken.

We also need good people to drop the politics and go be involved in schools. Coach a little league team and show those kids you care.

In the end, be skeptical, think, and be informed.

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