Guns Without Responsibility. How Does That Work?

People talk a lot about the original intent of the people who wrote the Constitution.  Often, though, it seems to me that we only give lip service to the fact that it was a very different world back then.

Whether we want to or not, we do need to reconcile these two things:  the original intent of the Framers, and the application of that intent in the modern world.

Back in the time of the Revolution, everybody understood that, in principle, everyone was in the militia.  This was because there were no police, and there was no army.   So when marauding Indians or hostile Frenchmen turned up outside a frontier town (say Deerfield, Massachusetts, in 1704), everyone was expected to turn out and put his life on the line to defend the community.

Without that levee en masse, to use the French term, nobody's life in a frontier community was worth a tinker's damn.

That was then.  Everybody was in the militia, and everybody should have a gun -- and know how to use it.

Fast forward to today.  Let's face it:  The idea that everybody's in the militia, subject to call at a moment's notice, has been dead for several centuries.  But the National Rifle Association still says that anybody can have a gun.  (It's in the Second Amendment.)

Wait, wait a minute.  Wasn't there a connection between militia service and gun ownership?  Well, as a historical matter, there was.  The two ideas were intimately intertwined.

But the Supreme Court has said never mind.  If you want a gun, you can have one anyway.

As for the militia thing -- well, never mind.  As a practical matter, it's not happening.  So why worry about it.

Here's where I beg to differ with Justice Scalia, and offer my own modest proposal.  (Justice Breyer was headed in my direction at the end of his dissent, but he didn't get there.  See page 28 of his dissent.)

Okay.  If you don't want to have a gun, and you don't own one, then you're not in the militia.  But if you do have a gun, then you're in the militia, and that "well-regulated" thing kicks in.  The modern version.  No muster, no drills.  But maybe some training to be required of all gun owners.  How to operate a gun.  How to unload a gun (people underestimate the importance of knowing how to unload a gun).  Maybe a little target practice (this is where the National Rifle Association got its start, a very long time ago).  The law of guns.  The continuum of force -- something that's drilled into police officers; the typical gun owner doesn't have a clue.

I could go on, but you get the idea.  With a gun comes responsibility.  The NRA and its adherents want guns without responsibility.  I don't think that works.  I don't think that's right.

All the words in the Second Amendment should have meaning today.  Not just some of them.

Gunfight at the O.K. Corral

So what does the Gunfight at the O.K. Corral have to do with gun control laws? Quite a lot, it turns out. The Earps and their friend Doc Holliday were actually enforcing a local ordinance against the Clantons et al. -- an ordinance that prohibited the carrying of weapons in good old Tombstone, Arizona.

It turns out that quite a few Old West towns prohibited carrying guns.  I found out about this from Adam Winkler, a law professor at UCLA who has written a book called Gunfight:  The Battle Over the Right to Bear Arms in America (W.W. Norton, 2011).

Winkler is middle of the road, as gun things go.  He's okay with the individual right to a gun -- the core of Justice Scalia's Supreme Court opinion -- but he begs to point out that gun control has been around as long as the right to have a gun.

He also points out that the fear of gun confiscation is not entirely a paranoid fantasy:  It has happened in this country.  From the early days of the Republic and on through Reconstruction and the Ku Klux Klan to Ronald Reagan and the Black Panthers, gun control laws were used to disarm blacks.

Which puts RR in the odd position of being a conservative saint who favored gun control while he was governor of California, saying, "There's no reason why on the street today a citizen should be carrying loaded weapons."  

The National Rifle Association also used to support gun control.  In the 1930's the organization's president, Karl T. Frederick, told Congress, "I do not believe in the general promiscuous toting of guns.  I think it should be sharply restricted and only under licenses."

Justice Scalia's opinion turns on the original intent of the framers of the Constitution, and Winkler points out that America in the late eighteenth century had all kinds of gun controls:  "At the time of the founding, laws required the armed citizenry to report with their guns to militia musters, where weapons would be inspected and the citizens trained.  Authorities often required that militia guns be registered.  There were laws requiring gunpowder to be stored safely, even though the rules made it more difficult for people to load their guns quickly to defend themselves against attack."

The history of guns in this country is complicated, and we need to look at the whole picture.  Justice Scalia didn't, and his opinion suffers from that.  He wrote that, unlike handguns, machine guns could be restricted because they are "dangerous and unusual weapons" that are not "in common use."  And he ignored the fact that the federal government effectively banned machine guns in the 1930's, so naturally there are not many of them in civilian hands.

The NRA and the Truth

Wayne LaPierre of the NRA said something on Meet the Press last Sunday that he shouldn't get away with, but it looks like he's getting away with it.

He was talking about the M16 rifle and its variants, which use a .223 (or 5.56 mm) cartridge. Using his usual "anybody that knows anything about firearms" ploy, he announced that the .223 was one of the smallest cartridges available, wasn't very powerful -- and he had no idea why people kept talking about large exit wounds.

I think he wants people to think the .223 is just like the .22 Long Rifle that kids used to shoot tin cans with, back in another world. A typical 40 grain .22 LR cartridge has an energy of 104 foot pounds of force. A 62 grain M16 cartridge has an energy of 1,303 foot pounds. The 9 mm Parabellum pistol cartridge -- the round you're most likely to be shot with in Philadelphia -- has an energy of 420 foot pounds.

It's true that the .30-06 rifle round, used in World War II's M1 rifle, typically has an energy of 2,820 foot pounds. The Browning .50 caliber machine gun round typically has an energy of 13,144 foot pounds. This is used in sniper rifles as well as machine guns.

So, yes, there are more powerful rifles out there. But the M16 was designed specifically to produce maximum mayhem at short ranges. It does this, first, by allowing the shooter to fire a lot of bullets quickly. Second, the round is designed to yaw and fragment in the victim's body. It's like inserting a small fragmentation bomb inside a human being and then exploding it.

And, yes, there are large exit wounds.