Reasonable restrictions

December 28, 2012 by
Filed under: Gun Rights 

A Facebook conversation led to the concept of “reasonable restrictions” on the Second Amendment.  Rather then leave my list there, I decided to leave it here.

We begin with first principles.  I believe that the right to keep and bear arms flows directly from the right to self-defense.  Put simply, we own our own bodies, and thus have the right to defend ourselves against attack.

Second, I believe the founders intended that the people have arms that were as good as those that the government has.  (As an aside, in the American system, the government derives its powers from the people.  It makes no sense to say that arms should only belong to “police and military.”  You gave the police and military their powers.)

Given that the second amendment is a fundamental right, restrictions to the right are subject to strict scrutiny.  In a nutshell, there has to be a darn good reason, and the restriction has to be proven to work.

In short, I think that the right to keep and bear arms is like the right to vote: fundamental, and not to be trifled with.

Here is what I think is reasonable:

  • The government has a compelling interest in preventing firearms use by those who are incompetent (legally…this is not a comment on skill level).  Those who are adjudicated to be mentally ill, for example, and felons.  Adjudicated is the key word in this sentence.  A judge would have to pronounce you unfit to exercise your civil rights.  Age restrictions are probably ok under this test, as well.
  • Any outright ban on a category of weapons is unreasonable.  Call them what you like: “assault weapons”, “machine guns”, “high-power sniper weapons”…giving something a scary name doesn’t make it illegal.  And yes, this means that I think that full-auto weapons should be sold over the counter.
  • Registration schemes that amount to a ban are likewise unreasonable.  Most of the National Firearms Act falls under this test.
  • Magazine restrictions are unreasonable.  They fail under the second test.
  • Waiting periods are unreasonable.  They haven’t been proven to
  • Background checks are *not* unreasonable provided that they are time-boxed.  The NICS system is a good example of this.  If a “delay” is issued, then the system has a 48 hour window to deny, but the default is “proceed.” (Note that under the current system, the decision to proceed is up to the dealer’s discretion, which is really unfair to the dealer.  If a sale is legal, it is legal.)
  • Shall issue concealed carry permits are probably not unreasonable.  Training requirements are.  How is it that a literacy test for voting is a problem, but testing before being able to exercise the second amendment is ok?

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Comments

3 Comments on Reasonable restrictions

  1. Dod on Fri, 28th Dec 2012 5:15 pm

    2. Nicely done. In a just world….

  2. Knitebane on Fri, 28th Dec 2012 6:18 pm

    3. I’m pretty much with you, though I would rather see the restrictions for felons dropped because:

    a) If you are convicted of a violent crime you shouldn’t be out among the general population where you *will* be able to get a gun regardless of what the law says. Or a knife. Or a can of gasoline. If you are violent you should be locked up until you are no longer violent.

    b) If you have served your time and/or are no longer violent you have just as much of a right to protect yourself as anyone else.

    c) Almost everything including a host of non-violent crimes are now felonies. In North Carolina, theft of pine straw when you are 16 years old will bar you from owning a firearm for life. How is that reasonable?

    § 14‑79.1. Larceny of pine needles or pine straw.

    If any person shall take and carry away, or shall aid in taking or carrying away, any pine needles or pine straw being produced on the land of another person upon which land notices, signs, or posters prohibiting the raking or removal of pine needles or pine straw have been placed in accordance with the provisions of G.S. 14‑159.7, or upon which posted notices have been placed in accordance with the provisions of G.S. 14‑159.7, with the intent to steal the pine needles or pine straw, that person shall be guilty of a Class H felony. (1997‑443, s. 19.25(aa).)

    While once being a felon was a reasonably good indicator that a person was forever untrustworthy, the expansion of the term into things like this make it no longer a very useful tool. We need to go back and fix that or rework the prohibited list to just those convicted of violence against a person.

    The pine straw thief, the check kiter and the guy who took a box of pens from his job (§ 14‑74. Larceny by servants and other employees) are no danger to the public. The five-time mugger that keeps pleading down to misdemeanor assault probably is.

  3. George on Fri, 28th Dec 2012 7:14 pm

    4. Yep, I would agree with that. Once your sentence is done, then you should be free to exercise your rights. If you are too dangerous, then you should be locked up.

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