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Morain

Most gun laws result from policy, not constitutionality

6/1/2022

America is very good at mourning its victims of mass shootings. Should be — we get plenty of practice.

Local, state and national leaders express their heartfelt condolences to the grieving survivors. Memorial flowers, messages and tokens of remembrance pile up at the site of the tragedy. Reporters interview suffering family members on camera. And everyone says we can’t let this happen again.

But it does. And the cycle repeats.

Much of the grief is genuine. Relatives and friends of the dead truly suffer loss. Their pain is shared by people of good will, many of whom I expect are devotees of the Second Amendment.

Those who see a compelling and immediate need for stronger gun safety action, though, must bear the continuing frustration of the nation’s kabuki dance that follows every multi-death tragedy. They perpetually demand that something be done to prevent the next one. 

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But nothing ever changes.

That’s because a significant bloc of lawmakers maintains that the Second Amendment forbids actions that might make it harder for would-be shooters to acquire rapid-fire weaponry that has only one purpose: to kill as many people in as short a time as possible.

As a result:

    • There are more guns than people in the United States.
    • The number of guns manufactured in the U.S. has nearly tripled in the past two decades.
    • The United States endures more mass shootings than all the other developed countries combined. It’s not even close.
    • The three deadliest years for school shootings in the past half-century are 2018, 2021 and 2022.
    • And this horrific fact: guns are now the leading cause of death among children in the United States of America. Guns overtook auto accidents in 2020.

There’s a world of difference between support for the Second Amendment, on the one hand, and refusal to consider any gun restrictions at all on the other, such as setting an appropriate minimum age to bear them, or the maximum number of rounds their magazines can hold, or defining which potential gun buyers should undergo background checks, or even whether people who are obviously dangerous should temporarily be restricted from carrying weapons.

Hunting is a time-honored sport in America, and self-defense is recognized everywhere as a legal right. Gun ownership and use are protected under the Constitution, as they should be.

But that doesn’t mean that all people should have access to guns of every type at all times.

We need to more closely define just what rules should govern gun possession and use in the United States. Exactly how far does the Second Amendment go?

Those of us who write for publication jealously guard the First Amendment right to communicate freely. But we agree that, to once again state the oft-quoted remark of a Supreme Court Justice many decades ago, the First Amendment doesn’t give someone the right to shout “Fire!” in a crowded theater.

Those who warn against supposed threats to the Second Amendment’s guarantee of the right to bear arms every time someone proposes some type of gun safety improvement need to answer some questions.

For one: would a ban on assault weapons like the AR-15 violate the Second Amendment? The U.S. had such a ban for 10 years, from 1994 to 2004, because Congress and the President created it, and its legitimacy was not called into question before the courts. Why is such a ban regularly called “a threat to the Second Amendment?”

For another: same question for high-capacity magazines. What Second Amendment right would be threatened by banning 50-bullet magazines for semiautomatic weapons?

Here’s another: are universal background checks for gun buyers in all venues a violation of the Second Amendment?

How about this one: would the Second Amendment be violated if the legal age to own and/or carry a gun were 21 years of age, unless the minor were accompanied by a parent or guardian? In Iowa, 21 is the minimum age to carry a handgun, but the legal minimum for a long gun is 18. You can’t possess or drink alcohol in Iowa until you’re 21, but you can have a long gun at 18.

There are strong arguments on both sides of all those questions. But, in my opinion, the Second Amendment is not one of them. We already ban machine guns in this country, and for good reason: they kill a lot of people quickly. What other rapid-kill weapons could also be restricted without breaching the Second Amendment?

After mass shootings like those recently in Buffalo and Uvalde, we hear that we need more mental health assistance. I fully agree, and not just after massive kill events. But is rage, or a “short fuse,” or poor anger control an expression of mental illness? I doubt it. More crackdowns on bullying and on domestic abusers are equally needed. 

If poor mental health is the cause of mass shootings in the U.S., why do all other nations not experience what we go through with stunning regularity? Are residents of those countries free of those types of mental health deficiencies?

We should try “red flag” laws — making guns unavailable to people whose temper goes temporarily out of control. 

Raising the bar for gun possession in the United States would inconvenience some Americans. That’s a fact. But I doubt that it’s unconstitutional. 

In this country, we don’t know what’s legal until a case is brought to court. We should test some gun restrictions by adopting laws to that effect, and then have them challenged through the justice system. 

We would probably find that many gun laws are a matter of policy, not constitutionality. And policy is up to the representatives elected by the people. ♦

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