Confessions of a 2A Non-Absolutist


Folks who’ve read some of my prior editorial articles know that I don’t always toe the 2A line as much as some of the other contributors to this site. It’s ironic, some might say, given my post a couple of weeks ago lambasting G&A’s Dick Metcalf for doing pretty much the same thing that I’m about to do. Before I launch into my latest apostasy, though, I do want to offer some context. G&A is an industry publication that supports the gun industry and is for sale – i.e. it’s consumers, us, exchange money to peruse it’s content. It is primarily a guns and gear magazine beholden to its advertisers to always say nice things about the stuff they review. Metcalf and the other writers understand this. They make their living catering to the firearm consumer . . .

TTAG, by its very nature is a much different beast. RF founded this blog to “explore the ethics, morality, business, politics, culture, technology, practice, strategy, dangers and fun of guns. ” Our mandate is very broad and, as a result, we are going to cover a lot more ground and have the luxury to explore more philosophical positions than a trade magazine like G&A. If you want 2A orthodoxy, there are plenty of message boards out there that will provide just the echo chamber you’re looking for. If you want a reasonable discussion of differing viewpoints, TTAG is the place.

Furthermore, most of the staff here get exactly diddly-squat in terms of compensation. We don’t make our living from doing this. With the exception of a couple of cleaning kits I reviewed this year (which I got to keep) and the M&P Airsoft gun that was provided as a review sample (and had to be returned), I have paid for every single item I have reviewed on this site with my own hard-earned cash. I haven’t gotten one thin dime for my efforts here. But then, I never saw writing for TTAG as an opportunity to get rich. That’s not why I do it.

I can’t speak for my fellow writers, but I have to confess to somewhat narcissistic motivations in my desire to write for TTAG. I really enjoy the fact that lots of people are going to read my material, be it a review, an opinion or just a post because I’m feeling grouchy about something. Beyond that, I feel that I have something to contribute such as an opinion on a gun or piece of kit, or more importantly to offer a different perspective on gun rights.

It is in that vein that I wish to commit today’s heresy. RF has stated on numerous occasions that he believes that the Second Amendment prohibits any kind of gun control laws. No exceptions. It’s a remarkably simple interpretation and one that is held by many pro-gun people. Furthermore, there is nothing wrong with a simple interpretation. Simple is good and easy for average people to understand. Complicated involves lawyers and politicians and no one (other than the aforementioned lawyers and politicians) want that.

Unfortunately, as a country, we don’t all see things the same way. There are people, including sitting members of the Supreme Court of the U.S., who don’t see the Second Amendment the same way. They also take a fairly simple interpretation, but theirs is different. The trick here is that how they, I, (or Robert, or you) choose to view the 2A isn’t what counts under our legal system.

Since we are all going to hold different opinions about different things, there needs to be a “fair” way to sort these things out. We may not all agree with every outcome, but we need to have a consistent process. Our Constitution was elegantly constructed, but unfortunately, the framers didn’t clearly articulate how to referee these sorts of disagreements (maybe all those truths they held to be self-evident aren’t so self-evident after all). One might be tempted to argue that it should be up to the legislature (that ostensibly represents the people) but we know that Congress hasn’t truly represented anything but themselves and the lobbyists for some time now.

So, who to referee these debates? Imperfect as it is, the Supreme Court effectively assumed that role in 1803’s Marbury v Madison during the tenure of a particularly activist chief Justice, John Marshall. While it could be argued that this assumed power is not real, the fact is that in law, if something remains uncontested long enough, it eventually becomes a de facto standard and difficult to change. What should have happened in 1804 was a movement by the legislature to rein in the SCOTUS, but that didn’t happen. So after 200+ years, the concept of the SCOTUS ruling on Constitutional disagreements has become widely accepted.

And this brings us to my fundamental point. As I said earlier, RF’s opinion on the specific meaning of 2A is no more and no less valid than Michael Bloomberg’s opinion. What matters is the SCOTUS’s opinion. Barring a new case and a different crop of judges, SCOTUS’s current guidance (from D.C. v. Heller) is that the 2A is not unlimited and is subject to regulation. How much regulation and what form that takes is open to interpretation, but some degree of regulation is allowable. It’s left to pro-gun and anti-gun people to debate where on the regulation continuum things will fall. That continuum is constantly in flux and varies from state to state.

The United States Declaration of Independence declares life, liberty, and the pursuit of happiness to be inalienable rights that cannot be denied. While this is an absolute for those who choose to live away from society (in a state of nature so to speak, hence natural rights), those of us who choose to live within a society’s strictures find that these rights can indeed be abridged. This is part of Social Contract Theory. We agree to give up certain rights in exchange for the benefits living in Society affords us. Society has the authority to take your liberty or even your life if you act against the common good. Since the right to keep and bear arms stems from the fundamental right to life (the right to protect one’s life), it seems hard to dispute the fact that if the society has the right to abridge life and liberty, then it certainly can abridge the right to keep and bear arms.

Gun rights can and will be regulated. What remains is for us to set the terms of what that regulation should be. I personally think that a lot of the regulations currently on the books is very bad law. Those who attack “assault weapons” and “high capacity” magazines are utterly full of crap. I think that the National Firearms Act of 1934 is useful only as a bird cage liner and that had the Miller case been properly litigated, the whole damn thing would have been thrown out.

The Government caught a huge break and they knew it. SCOTUS disgraced themselves by ruling on a case where the defendant never presented an argument. Can you imagine the uproar if something like that happened today involving a civil rights-related case and the wronged minority party could not afford to come to Washington to defend themselves? I also believe that the right to life includes the right to protect life as I see fit which means that if I wish to carry a gun for protection, I should be able to do it just about anywhere I want to go.

Most importantly, I’m with RF in that “pre-crime” laws have no place. Passing a law to prohibit law abiding citizens from being able to posses an AR-15 in order to prevent the incredibly small number of crimes committed with rifles each year makes as much sense as closing all bars and barring alcohol service in restaurants to cut down on the number of drunk driving accidents (which incidentally kill a lot more people – including children – every year than rifles do).

But I don’t think that just anyone should be able to walk around with anything they want whenever they want wherever they want. I’ve taken a fair number of firearm classes and I can’t tell you the number of dumb-ass things people do with guns. The good thing is that after the class is finished, these people are a lot less likely to do something stupid. But let’s face it, lack of training and/or respect for firearms leads to stupid and dangerous incidents committed by both LEOs and ordinary citizens alike.

Training is the best way to improve firearm proficiency and safety across the board for all users.  In a perfect world, citizens would have easy access to quality, affordable training. If such a thing were possible, then that could be set as a prerequisite firearms ownership. Want a gun? Fine, let’s show you how to use it safely first.

Administered correctly, the training would not be a real barrier to ownership. Classes would be offered frequently and if someone had a critical emergency need for a gun (just granted a restraining order for example), the training requirement could be waived for 30 days or so. Training would also cover properly storing weapons so that they would be less likely to find their way into the hands of unauthorized users. The cost of secure gun safes would be largely underwritten by the government so that their price would not be a hurdle for people who wish to own a firearm and to store it securely. I really believe that if such a thing were possible, gun-related deaths would decline by a measurable amount.

I’d also like to see the mental health question get addressed. There are people walking around who simply should not be allowed to own a gun. They are not so “dangerous” that they need to be incarcerated full-time, but instead may have short-term impulse control problems. Having access to a firearm would permit a great deal of mischief during one of these impulse control incidents. Without a gun, they could still do harm, but it would be attenuated.

Please don’t try to tell me that there is no difference between a rifle with a 30-round magazine and a knife. If you really think there is no difference, then I invite you to join me for a force on-force simulation. You take the knife and I’ll take the AR-15 with 30 round mag. We’ll see who can do more damage.

As with the training question, the trick here would be to separate the truly dangerous from the rest. Merely taking depression meds should not be a disqualifier. Furthermore, even if at one point in your life you were barred from gun ownership due to mental state, there has to be an avenue to restore those rights should your mental state improve later in life (which absolutely does happen). Most importantly, we don’t want to discourage people with real mental health issues from seeking the care they need.

The problem is that for a regime such as this to work, society needs to see personal gun ownership in a favorable light and to construct the licensing and training protocols to encourage and support gun owners. In the real world, of course, it doesn’t work that way. Much of our government fears gun owners and opposes gun ownership and many of our citizens are either too stupid, brainwashed or both to understand that guns can be owned and used safely. The simple fact is that there are irrational elements in our society who see guns in a negative light and will use any tool we give them to prevent everyone from exercising their rights, hence conceding to any kind of restrictions on gun ownership is difficult if not impossible.

And so, we are left with two camps. There are those who absolutely hate guns, don’t believe in a gun’s fundamental usefulness in protecting life and want them all gone with no compromises. And there are those who are 2A absolutists who firmly believe that the Second Amendment clearly outlaws any and all restrictions and who seek confrontation with LEOs and other citizens as often as possible.

Oh yeah, there are also a whole bunch of us in the middle who feel that both groups are wrong. The amusing thing is that from where us “middle grounders” sit, both groups come across like raving, unreasonable lunatics. Kinda the same way we look at the assclowns in Congress who have become so polarized that nothing much really happens and when it does, it generally benefits one group and totally sucks for others. Gun laws are kind of like that right now.

But things can change.

Here’s the truly crazy thing – when anti-gunners win a battle, it usually results in no reduction in crime, vast inconvenience to law abiding gun owners and higher state costs to manage the new regulation. If, for example, you think that the new AR registration rules in New York state don’t result in some serious administrative overhead fees, you’re kidding yourself. New York taxpayers are footing the bill for that piece of excrement which will not make the state one iota safer.

On the other hand, when pro-gunners win a battle, there is usually no increase in crime, tax receipts go up because residents are purchasing items in the local economy and many of the citizens are happier. What needs to happen is for the pro-gun people to get this message out to the middle ground folks and show them that the pro-gun crowd really are the sane ones. If you claim that the Second Amendment prevents any regulation, you get written off as a crazy. If you concede that regulation can and will happen, but that the 2A was created specifically to limit the scope and extent of the that regulation, then you have a chance to win the hearts and minds of the vast middle ground and to show the anti-gunners as the true nut jobs they are.

I support the Second Amendment. Period. No buts. What I don’t support is some people’s interpretation of it (on either side).

Okay, now have at me. I’ve got my asbestos suit on.

One more thing – just a reminder that my opinion is my own and does not represent any of the other TTAG writers (or editors) beliefs on the subject. RF does the whole community a service by allowing dissenting opinions and this is merely one example of it.