Guns and the Constitution

Records of Reckless Depravity

The slaughter of civilians with guns, particularly hand guns, and now with semi-automatic and automatic combat assault weapons is setting new records of reckless depravity in the United States.

Washington, DC set a pace of more than one homicide a day in 1988 and the pace for 1989 is not slowing down yet. The police are delighted that the City Council approved their acquisition and use of the Austrian Gloch, an automatic hand gun equivalent to the Israeli Uzi the criminals are using. The Gloch is the "equalizer" in the frontier sense of the word.

Drug Related Homicides

Most of the homicides are drug related and the police in the afflicted areas seem helpless in their measures to prevent or even to slow or stop the drug wars.

Guns are plentiful, business is good, the territories are worth fighting for and the police for the most part are mere bystanders to the transactions, not because they want to be but because no amount of force or draconian criminal penalties seem potent enough to overcome the attractiveness of making prodigious amounts of money in a short period of time.

Ghetto kids with little or no education, or other prospects in the non-drug world make thousands of dollars a week in the drug business.

Guns play a very large role in the drug and other organized crime business, but they also play a role in something as simple as domestic disputes. Children blow their playmates away with daddy's 357 Magnum.

"Guns Don't Kill People," Not Much They Don't!

The harm produced by the unrestricted use of firearms is too well known to dispute. The argument "guns don't kill people, people kill people," is irrelevant and nonsensical. The argument that if guns were not available, killers would use other weapons, is also specious. When guns were not available and killers wanted to kill people they obviously used some other weapons, but in no society was the "right to bear arms" including the present United States, an unrestricted right to own and use lethal weapons, indiscriminately. Look at the pictures of the peasant uprisings in your history books, or read the descriptions more likely, and you will see the ordinary citizens "armed" with shovels, and rakes, and pitch forks.

The Right to Bear Arms

The "right to bear arms," has had a specific meaning throughout his tory and it doesn't mean that just anybody can own or use lethal weapons including guns. The meaning, as we shall see has not changed to this day.

The 2nd Amendment to the Constitution of the United States says, "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 you know what all the words mean, its a pretty simple straight forward statement.

Looking It Up

The following definitions are from the Webster's New Collegiate Dictionary, 1975.

Regulate: (1) To govern or direct according to rule. (2) To bring under law or constituted authority.

Militia: (1) A part of the organized armed forces of a country liable to call only in emergency. (2) The whole body of able-bodied male citizens declared by law as being subject to call to military service.

Security: (1) The quality or state of being secure as (a) freedom from danger: safety (b) freedom from fear or anxiety (c) freedom from want or deprivation (4) (a) something that secures: Protection (b) measures taken to guard against espionage, or sabotage, crime, attack or escape.

State: (5)(a) A politically organized body of people usually occupying a definite territory, especially: one that is sovereign.

Right: (2) Something to which one has a just claim as (a) the power or privilege to which one is justly entitled.

People: (7) The body of enfranchised citizens of a state.

Keep: (4) (a) To retain in one's possession or power.

Bear: (1) (b) To be equipped or furnished with.

Arms: weapons, (1)(a) A means of offense or defense: especially Firearms.

Infringe: (2) To encroach upon in a way that violates the law or the rights of another.

The Militia Act of 1792

The Militia Act of May 8, 1792, provided for the calling, organizing and use of a militia. The militia was to be organized on a State by State basis, with the governor of the State as the man in charge and the highest military officer of the militia of the State reporting to him. The President of the United States had the authority to call out the militia, but it remained under the control of their own officers.

No Longer Than Thirty Days

The militia could not be called out for periods longer than thirty days, which made their use marginal. The were called out for the Whiskey Rebellion and for numerous clashes with Indians, but it was more efficient and practical to organize groups of 'volunteers' and as the problems increased and the militia proved more ineffective regiments of volunteers came to replace them. By the time of the Civil War regular Armies had been organized and augmented with regiments of volunteers, in part be cause much of the militia, in the control of Southern Governors was not available to quell the rebellion.

Militia vs. National Guard

By the time of World War I the Militia had completely disappeared to be replaced with the National Guard, an all volunteer organization. By this time, the concept of the standing army had been accepted by the Congress and the American people.

The 2nd Amendment to the Constitution and the Militia Act of 1792 are obsolete. The Militia has been replaced with the National Guard and we have standing Armies. The 2nd Amendment could be removed from the Constitution with no visible disturbance of any one's right to bear arms.

"To Keep and Bear Arms..."

The phrase "to keep and bear arms" has special meaning for us because this is the phrase that presumably makes it okay to have guns.

The Militia Act of 1792 states, "1. Each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty five years... shall severally and respectively be enrolled in the militia....

Make Sure the Cartridges Fit the Gun

"That every citizen so enrolled and notified, shall within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutered and provided, when called out to service....

Don't Forget the Espontoon

"That the commissioned officers shall severally be armed with a sword or hanger and espontoon....And every citizen so en rolled, and providing himself with arms, ammunition and accouterments required aforesaid, shall hold the same exempted from all suits, distresses, executions or sales for debt or for the payment of taxes." (Emphasis added.)

The Militia Was a Draft

Enrollment in the militia was a draft, no able-bodied, free, white male citizen was exempted excepted for special reason and/or if they were under 18 or over 45 years of age. The militiamen had to provide their own arms, which they kept in their house or with their person. There were no armories. When called they had to have their weapons, since there were no others and consequently the law forbade the infringement of the ownership of the arms for debt, suit, distress, taxes etc. What National Guardsman or member of the Armed Forces has to provide his own weapons today?

The Law Is Obsolete

The un-infringed right to keep and bear arms made sense for a very few years in the early history of the nation. With the advent of the Volunteers, the National Guard, and our standing Armed forces it has no relevance at all. No one has a Constitutional right to have, own or keep a gun. They may have the right to own a gun, but it is not a Constitutional right.

The right to bear arms is the right of armed military forces to enter combat.

Nancy Reagan Does Not Have The Right To Bear Arms

Nancy Reagan may have the right to have a pistol under her pillow, but she does not now nor ever did have the right to bear arms. No woman in the United States of America has the right to bear arms under the Constitution. The women in Israel do, but not in the United States.

Able bodied-men betwcen the ages of 16 and 70 in Switzerland have the right to keep and bear arms because they still have a militia organized along the lines of our Militia Act of 1792, except that the Swiss government provides the weapons.

Who Has What Right?

The first step in any program of the regulation of the use of firearms by the citizens of the United States is to determine what is and what is not a right determined by the Constitution or the Declaration of Independence. People may have the right to own or keep a gun but it is not based upon the Constitution or any other founding document of the United States. Laws regulating the use of guns do not infringe upon anyone's Constitutional rights, therefore in formulating an approach to the problem it is necessary to determine who has the authority to regulate the ownership and use of guns—pistols and rifles—and for what purpose.

Congress through it's control of interstate commerce obviously has the rIght to regulate commerce in firearms among and between the States; the fact that it is reluctant to do so is not the lack of authority it is the lack of will or desire.

The United States did not reserve to itself day to day police power. The States were already exercising the day to day police power necessary to preserve the public peace and safety, so the militia was organized to take care of Indian uprisings, insurrections, invasions and the like.

No National Police Force

The Federal government did not organize a Federal police force and to this day has never organized a National Police Force, comparable to say the Pennsylvania State Police. Agencies of the Federal government have police forces; there is for instance, the National Park Police, but their jurisdiction is limited to lands under the direct supervision of the National Park Service and really very little of that, only some in Washington, DC, New York (at Gateway National Recreation Area, and in San Francisco (at Golden Gate National Recreation Area). Police power as it is normally understood resides in the States and jurisdictions within States. Police power regulates the public peace and tranquility. To the extent that firearms disturb the public peace and tranquility their regulation falls squarely under the State's police power.

Assassinating a President Becomes a Federal Offense

Only with the assassination of President John F. Kennedy did the Congress pass a statute making it a Federal offense to murder a President of the United States. The States would normally handle murder cases no matter who the victim.

Who Is Protecting the Public Safety?

To the extent that States and local jurisdictions do not regulate the use of dangerous weapons, including firearms, because of the perception that the right to own and use such a weapon is Constitutional, the States are guilty of failing to protect the public safety and/or interest. A state or local jurisdiction has the right to disarm its citizens. Such a radical departure from traditional behavior over a large area could well be politically as hot as a "three dollar pistol."

Morton Grove, IL

But Morton Grove, IL did it with little or no turbulence. Morton Grove, IL, a town of 25,000 has a law that bans the sale and ownership of hand guns by everyone except police, on-duty military and law enforcement personnel, licensed antique gun collectors and the town's only licensed gun club. The law has survived all state and Federal challenges that claimed it violated the Constitutional right to bear arms.

Violators are subject to fines of $50 to $500 for the first offense and fines of $100 to $500 and six months in jail for subsequent offenses.

Portland, ME

The Chief of Police of Portland, ME on the other hand is trying to regulate the use of firearms—requiring permit checks mostly in a State where the State's constitution says, the right to bear arms shall never be questioned, which is interpreted in the State of Maine to mean that anyone can obtain a permit to own a hand gun without questions asked. The Police Chief has convinced Portland's city fathers to go to court to challenge the law on its application to concealed weapons. The question of the ownership and use of guns in our society has two parts: (1) who should be permitted to have firearms in their, possession; (2) who should be responsible and what form should the liability take for the consequences of the use of firearms?

Each jurisdiction in the United States that possesses police authority can make those judgments.

The States and localities, since they have the primary police powers and the attendant responsibility for law and order have the main responsibility to regulate the use of firearms. For those communities wishing to do so Morton Grove, IL is the perfect model, it's ordinance passed all the tests at the local, State and Federal levels. Morton Grove, IL, proves conclusively and incontrovertibly that no ordinary citizen has a Constitutional right to own a gun.

Gun Owner's Insurance

Who should be responsible for the consequences of the use of guns? The person licensed to own and use the gun. At the time of purchase and license of the gun, the purchaser should, be obliged to purchase insurance to cover the use of the gun. A little experience and litigation will quickly establish the level of insurance required and the amount of the premiums. The facts surrounding any particular incident can be settled in court as are all such claims, or by the insurance company out of court. The settlement of liability will address the civil aspects of the consequence of gun use, there may be other criminal and civil charges which will be settled the way all charges are, in court.

Gun Laws Don't Affect Crooks

What about the charge that only honest people will be affected by such gun laws, and that the criminals will always have and use guns. Probably true. However, the use of guns and their consequences is complicated enough when honest people make mistakes, (witness auto accident insurance claims, and litigation), without confusing the issue with a completely different social problem.

Petty criminals who use guns pose a threat to other individuals in the society and as quickly as they are apprehended they are incarcerated. So many so that "social justice" calls for building bigger and bigger jails. There is a hope that petty criminals could be disarmed, to some extent, by making the purchase of weapons, conform to some standard of licensing and insurance.

Organized Crime Is Another Matter.

Organized crime is a State within a State. The corporate organization is as vast as any corporation in the Fortune 500 in terms of income and profit and probably would have to rate as the most profitable enterprize in the nation per unit of investment. If they issued stock it would have to be a "must buy," in any broker's list of hot stock. Organized crime has resisted all efforts of the Federal government to curtail it and has resisted all efforts at the level of international law enforcement. Mafia trials in Italy are major military operations, with armed protection being required for very large numbers of people to even get the semblance of a trial before the relevant witnesses are killed.

Income Tax Evasion Laws Produce Smarter Crooks

And the most successful prosecutions simply provide vacancies for young, ambitious, crime lords to fill. Organized crime can afford the "best" legal counsel, they could probably buy a law school if they thought they needed one. But in their bag of business tricks they have a few that distinguish them from their "normal" business counterparts. They do not hesitate to maim or kill if it is in the best interest of business. There are no gun laws which could possibly be an impediment for this group, since no laws are impediments.

The Federal government thought it had something going when it used income tax evasion as the means to bring organized criminals to justice. The organized crime lords got tax lawyers and accountants. The net result of bagging a few big shots early on was to force the criminals to employ better business methods. The necessity to meet the needs of the tax collector probably improved the internal business organization of their various operations. So much for social evolution and ecology. Attacking organized crime is like using antibiotics against bacteria, it just causes the selection of a more virulent breed.

Rethinking Social Values

Organized crime does what organized crime wants to do, and it should in no way influence the way we approach the ownership and use of guns by the civilian population. (It is a strange irony that the streets are safer in Mafia towns, since petty street crime in a Mafia town is bad for business.) Dealing with organized crime will require rethinking social values, since most of what organized crime profits from is providing goods and services to middle class America.

$9 Billion Says the Drugs Will Keep Coming

Drugs pose medical as well as social problems and as long as great effort is made to suppress their importation and use, equally great effort will be made to defeat the suppression effort. The Colombian drug lords have 9 billion dollars a year to spend on this problem if they must and they are not the only drug suppliers in the world.

We need to separate the efforts to control guns in the ordinary population, from the efforts to bring organized crime to justice. Organized crime is the business of big government and big resources are needed to carry out operations. The ownership and use of guns is a matter that small government can handle. Towns and counties and cities can do something about guns in their neighborhood, ward, city or county, or not.

Congress vs Local Government

Beating on the Federal government, especially the Congress, to pass legislation to cure problems at the local level of the United States invites failure. Morton Grove, IL was a success. Every year we need a few more Morton Groves, and some more and some more. We have had this problem since the nation was a pup. We will not solve it over night in one piece of Federal legislation. It will be solved when citizens, neighbors, business leaders, teachers, mill workers, et al, decide they have had enough in their town and stop it. If a significant number of communities have model gun laws, the Congress might just feel it had the courage to do something on the Federal level. Without a lot of grassroots support the Congress is going to bow to the pressures of the gun lobby.

At any rate we have to stop using the morality of the Constitution to cover up the immorality of the in discriminate use of firearms.

. . . Ted Sudia . . .

© Copyright 1989
Institute for domestic Tranquility