The Right to Bear Arms and Private PolicingMinor Edits 2013-09-29
March 28th, 2013
Dear President Obama:
Last week I received the attached email letter from your office in response to a message I sent to www.whitehouse.gov.
You are the President. You are also an accomplished politician. You are in a far better position to ascertain the values, desires and understanding of our citizens than I. You certainly have a better understanding of what it is actually possible to accomplish. But hopefully I am the average citizen, and not some outlier, and what I feel is typical of what many others do, and can offer that as a datapoint. And I hope that you can use the good feeling towards you to take a courageous stand and do something unusual that would really work.
The Constitution is our compact with government. The Magna Carta did that for the British, taking away the right of the king to order arbitrary execution or punishment. The Constitution states our expectation how our government will work to preserve our "right to life, liberty and the pursuit of happiness". Yes, I know that is not in the Constitution, but that is why the United States exists and is not a part of Britain! That is what first comes to mind for most of us when somebody talks about the "Constitution". We all carry around our own interpretations, but the Constitution is our understanding of the ground rules, and we dont expect it to change much over our lifetime. It defines how we see ourselves and what makes us feel good to be Americans. Mess with the power balance stated in the Constitution and you are going to have major resistance. I would like to start by summarizing in simple terms how we see ourselves and what we expect of our laws and government:-
1) In the United States, we are free to speak - not matter how uncomfortable it may make other people. The law will not come after us for doing so - although others may speak and make us uncomfortable in turn as a result. And we can do it by ourselves or in a group. Thats the first amendment. Its good for the country, because it allows pain and frustration to be expressed, so it can be heard, and action can be taken.
2) In the United States, we are not subject to unreasonable search or seizure. Thats the fourth amendment. Nor can we be compelled to testify against ourselves. Thats the fifth amendment. Along with the declaration elsewhere that we have a right to security in our papers and effects, that leads to the view that we have a right to privacy.
3) In the United States, we cannot be forced to work except as punishment for a crime. Thats the 13th amendment. It isnt just about classic slavery, it goes further than that.
4) In the United States, we have the right to a trial by jury. That is the seventh amendment. The human condition results in some very strange situations sometimes, and the laws cant really address all of them. So while juries usually follow the law, they can ignore them when they are unreasonable - as an exception.
5) In the United States, we have the right to bear arms. That is the second amendment. And "bear arms" is not for hunting, or self protection, or sport - it is for armed resistance to invasion or for rebellion.
6) In the United States we dont go around randomly killing or punishing people, even for indulging in noxious activities. We dont accept vigilantes, lynch mobs, or arbitrary judges. We are a country ruled by law, not by a person or organization. Thats not in the Constitution, except indirectly, or maybe in the fifth thru seventh amendments.
Right now the purpose of this letter is to tell you how I feel about current gun control efforts. You say in your letter "Like the majority of Americans, I believe the Second Amendment guarantees an individual right to bear arms". The trouble is, this has zero credibility, when the laws being proposed talk about "banning" assault weapons (or large ammunition clips, or whatever). What does the word "ban" mean? Even if you did not use the word, do you think we are stupid? The thrust of the proposed laws attacks our view of what the Constitution says, and our view of what it means to be American. Trying to argue that the proposed laws are constitutional just shows contempt for our intelligence and leads to incredible resistance. The types of comments made by Nancy Pelosi during the health care deliberations just shows us how little she cares about our compact - the Constitution. Getting the Supreme Court to say it (or worse packing the Court) does not make it better. You would do better if you came right out and said we need to change our Constitution - that would at least be totally accepted as an honest and respectful statement of your opinion of what is good for the country and that we need to change how we should perceive ourselves.
On the other hand, I and I think most Americans do accept the need for regulation - and it is even right there in the Second Amendment. We certainly dont want to see more bloodbaths in our schools. When somebody is thinking of doing something like that at Sandy Hook we want to make people feel they have a responsibility to report them. And we dont want mothers to even remotely think that it is OK to be buying their crazy sons guns.
The mark of a great President is he gets big things accomplished that make us feel good about being Americans. Killing Osama bin Laden took away the frustration and distraction of not being able to do something about somebody who did us great harm, so felt good. You did something that was absolutely necessary. But behind that is a bad feeling, a guilt - it was necessary to resort to the methods of the terrorist - to compromise our principles - to get justice. It clashes with the perception of ourselves; the blind extension of "death from the sky" to two bit operators and collateral in far off lands does not help. It sets a horrible example. It makes Rand Paul's failed filibuster feel good. It allows people to think "Putin might not be so bad after all". I wish there was some way for you to say "That was not the true United States, it was a necessary exception"; maybe now it can happen only in a Charlie Rose format. What is most destructive to our self image is when there is conflict between the values we hold and the methods used to achieve results.
So I wish that you could see a way to facing the issue head-on. If you believe the right to bear arms is a bad amendment, say so, and get the Constitution changed. If you do actually believe that it is a good idea, then take away the fear that we are getting bamboozled, and reassert the right clearly in an arms regulation bill.
Here is a model gun control act that I think would work by totally defanging the NRA and by working with our fears and our self view:-
Right to Bear Arms Act
1) No law shall be enacted by any US entity that makes it illegal for a US citizen to possess weapons, including those designed for military use, or to receive training to use force. Any such law already enacted is hereby declared null and void as a violation of the Second Amendment of the US Constitution. All laws related to weapons shall concern themselves only with regulating proper storage, control, use, transport and sale of weapons, and not with possession of the weapons.
2) No court in the United States may convict any person of any crime where the preponderance of the evidence is mere possession of a thing or substance. No court may convict a person of a crime of violence for an act where the person was enforcing a valid law and the force used would be considered proper and not excessive if used by duly commissioned law enforcement personnel.
3) When conducting a raid, law enforcement may seize control of any weapons found until the raid is complete. Upon presentation of suitable evidence, courts may order seizure of weapons, declare specific individuals as high risk for irresponsible and dangerous behaviour with specific classes of weapons, and/or bar them from acquiring such weapons for a limited period. Federal agencies may do the same for other entities. Courts should not justify a bar based solely on prior convictions.
4) States, local entities, and individuals may declare limited posted areas as weapons free zones. No public road or path may be declared a weapons free zone, but transport of weapons over them must be concealed. Other public areas can be declared weapons free zones only if access is blocked by physical barriers, and access is restricted by guarded and posted entry points. No private home or business may be declared a weapons free zone except by an owner. Specified weapons, and weapons of greater destructive potential than those normally carried by the law enforcement officers of the jurisdiction declaring the zone may be seized if found within the weapons free zones. When a person exits, any items seized from them shall be returned if they were voluntarily declared or given up upon entry. States may define and regulate types of weapons free zones, and penalties for carriage of prohibited weapons into such zones.
5) A person discovering an object conducting surveillance of an area reasonably expected to be private may seize, disable or destroy such object with no notice or liability to the owner of such object. Anti-surveillance devices shall be regarded as defensive weapons. A notice posted by the owner or resident of an area declaring the area is being watched voids any expectation of privacy.
6) Any entity selling or transferring control of weapons that can be used to kill or maim has a responsibility to inquire into the competency of the purchaser/recipient to properly store, control and use the weapon and to refuse to deliver the weapon if not satisfied.
7) If a weapon is used inappropriately to harm private citizens, courts may inquire whether the supplier of the weapons used adequate care when investigating the purchaser, storing, or transferring control of the weapon, and transfer a portion of the liability for damages to the supplier if inadequate care was used. When used on people within a declared weapons free zone, courts may also transfer a portion of the liability to people who knew of the intended inappropriate use and failed to report it.
8) Any entity in possession of any weapon whose primary purpose is to kill or maim shall promptly report theft or loss of any such weapon. The entity shall be fined 3 times the market price of the weapon lost or stolen. If not reported within one month of loss, or if the weapon is used inappropriately against private citizens within one month of reporting the loss, courts shall presume the entity took inadequate care of the weapon.
9) An entity may, but is not required to report a voluntary transfer of control of most weapons, except to a court that is attempting to transfer liability for an act involving the weapon to the entity. In that case the entity must show adequate evidence of transfer of control and adequate care to identify and evaluate the transferee to defend itself against liability. All entities must report transfers of weapons of greater destructive potential than the weapons currently issued to an infantryman.
10) The federal government shall make available to weapons sellers a database of entities considered high risk for mishandling a weapon. No person shall remain on this database for more than three years without court review, no other entity shall remain on this database for more than 5 years without federal agency review.
11) The federal government shall classify weapons into levels of destructive potential and the states, courts and other entities may use the classifications in drawing up their laws, penalties, judgements and notices.
The first article reasserts the second amendment, making it clear it is a military right and it applies to all weapons. I think you should justify this with "I thought about it and changed my mind about ownership - gun ownership exists to enable rebellion against entrenched wealth and power". I know you wont say exactly that, but you should suggest it. Republicans would see a lot of their support vanish overnight. A friend of mine suggested a standard that at least all weapons that could be carried by a current infantryman should be included. People would accept it, because it really respects their understanding of the second amendment. The only people who would want to object would be gun manufacturers, because they would fear severely reduced gun ownership, which is what I suspect will actually happen. The owners that remained would be much more responsible.
The second article dispatches attempts to game the bar on criminalization of possession. This wording is actually more applicable to substance abuse, but police and courts get very abusive of rights when they see a gun. Possession crimes are a convenient way to bypass a real safeguard - the need to prove intent. Black men really get the short end of the stick under such gaming of the rules. All kinds of innocuous objects could get called a weapon. We also dont want a situation where good men do nothing, so we give them the reassurance that their actions using weapons will be protected if they behave like a regular law enforcement person in a critical situation.
The third lists what regulation is proper. We dont want a situation where law enforcement is helpless or unnecessarily endangered when enforcing the law. The blanket ban on felons owning a gun, a population whose circumstances really often do require possession for self defence by either themselves or their housemates, currently makes flouting of the law practically necessary. The only thing such bans accomplish is disrespect for the law and to make it easier to rearrest them. I think it would be better to require judges to pick and choose which ones are a real danger, and have a court ordered ban for just them.
The fourth article addresses the need for weapons free zones - especially in areas frequented by people of limited or diminished responsibility- such as bars (drunk patrons) or schools (children). Bouncers in a bar are rarely armed, they would rather see off rude patrons by dumping them forcefully outside than by shooting them. I think we have a problem where our law enforcement is overly armed with force - the right to demand a warrant for arrest is meaningless when you are faced with a gun or tazer. I once saw a case - a huge hulk of a man covered in tattoos said something to a woman begging on the post office steps on the way in - another woman took fright and called 911 - and two police officers ordered the man to the ground when he came back out of the postoffice. The beggar was long gone by the time they got there, and they let him go after frisking him. But he was lucky he did not get shot, and why should he have to have undergone the indignity of being forced to lie on the ground? You should have the FBI out in NYC and arrest every sergeant who demands stop and frisk quotas - although I think that particular story is bogus.
Information can be used as a weapon. In addition to defamation suits, I think one needs to provide people the means to protect themselves against surveillance, by providing them with the ability to act against surveillance devices.
The background check is the sixth. But I think you need to go further, by making the gun seller WANT to do the check. The best way is to let some of the liability for a noxious use of the weapon transfer to the party who provided the perpetrator with the weapon. In many cases they know something bad is going to happen and simply close their eyes - knowing they might have liability will make them sit up and pay attention - they will really have something to lose unlike the perp who usually winds up dead anyway and knows it. I am sure you have heard of suicide by cop! Dont let them off the hook by claiming the gun was stolen from them.There are also some awful cases where a number of people knew something bad was going to happen but said nothing, as well as one where a courageous teenager managed to prevent an incident by reporting what she knew. It would be inappropriate to make "failure to report" a crime, but passing on some of the liability would send a message that it is not OK, plus help heal people feeling extreme guilt that they did not do so. Article 9 addresses the reporting concerns.
You mentioned using the CDC to study the epidemic of gun violence. I think that is a great idea, especially if they also study the tight little no-win box into which our laws and social practices put people facing a bad economic situation. Even if you got rid of all guns, enough poverty and hopelessness would result in just as much mayhem, just different means would be used.
The following is the email response from the White House to an earlier message sent to whitehouse.gov
Thank you for taking the time to write. I have heard from many Americans regarding firearms policy and gun violence in our Nation, and I appreciate your perspective. From Aurora to Newtown to the streets of Chicago, we have seen the devastating effects gun violence has on our American family. I join countless others in grieving for all those whose lives have been taken too soon by gun violence.
Like the majority of Americans, I believe the Second Amendment guarantees an individual right to bear arms. In this country, we have a strong tradition of gun ownership that has been handed down from generation to generation. Hunting and sport shooting are part of our national heritage. Yet, even as we acknowledge that almost all gun owners in America are responsible, when we look at the devastation caused by gun violence—whether in high-profile tragedies or the daily heartbreak that plagues our cities—we must ask ourselves whether we are doing enough.
While reducing gun violence is a complicated challenge, protecting our children from harm should not be a divisive one. Most gun owners agree that we can respect the Second Amendment while keeping an irresponsible, law-breaking few from inflicting harm on a massive scale. Most also agree that if we took commonsense steps to curtail gun violence, there would be fewer atrocities like the one that occurred in Newtown. We will not be able to stop every violent act, but if there is even one thing we can do to reduce gun violence—if even one life can be saved—then we have an obligation to try.
That is why I asked Vice President Joe Biden to identify concrete steps we can take to keep our children safe, help prevent mass shootings, and reduce the broader epidemic of gun violence in this country. He met with over 200 groups representing a broad cross-section of Americans and heard their best ideas. I have put forward a specific set of proposals based off of his efforts, and in the days ahead, I intend to use whatever weight this office holds to make them a reality.
My plan gives law enforcement, schools, mental health professionals, and the public health community some of the tools they need to help reduce gun violence. These tools include strengthening the background check system, helping schools hire more resource officers and counselors and develop emergency preparedness plans, and ensuring mental health professionals know their options for reporting threats of violence. And I directed the Centers for Disease Control to study the best ways to reduce gun violence—because it is critical that we understand the science behind this public health crisis.
As important as these steps are, they are not a substitute for action from Congress. To make a real and lasting difference, members of Congress must also act. As part of my comprehensive plan, I have called on them to pass some specific proposals right away. First, it is time to require a universal background check for anyone trying to buy a gun. Second, Congress should renew the 10-round limit on magazines and reinstate and strengthen the assault weapons ban. We should get tougher on those who buy guns with the purpose of selling them to criminals, and we should impose serious punishments on anyone who helps them do this.
These are reasonable, commonsense measures that have the support of the majority of the American people. But change will not come unless the American people demand it from their lawmakers. Now is the time to do the right thing for our children, our communities, and the country we love. We owe the victims of heartbreaking national tragedies and the countless unheralded tragedies each year nothing less than our best effort—to seek consensus in order to save lives and ensure a brighter future for our children.
Thank you, again, for writing. I encourage you to visit www.WhiteHouse.gov/NowIsTheTime to learn more about my Administration’s approach.