1. Gun Prohibition - Can It Be Done
From a practical standpoint... No. The 2nd Amendment and the 14th Amendment are settled law. Gun prohibition or severe restrictions would require a constitutional amendment.
The idea that the 2nd Amendment only applies to the "National Guard" is a silly invention, not backed by history. To the framers of the constitution and the authors of the bill of rights, the militia was all able bodied males that could potentially be organized. Private citizens were expected - often even required - to participate in protecting their communities.
Recall, for a moment, the 1992 LA Riots. During the week long riots the police were often no where to be found. Citizens in the neighborhoods adjacent to the riot zone took to patrolling their own streets. Groups of citizens armed with rifles and shotguns stood at the edge of their neighborhood and dissuaded the rioters from spreading. This was, in the meaning understood by the founding fathers, the militia. This was something that the framers had in mind.
The history of the 14th Amendment further reinforces the 2nd Amendment as an individual right. The legislative history of the 14th Amendment reveals that the drafters specifically intended (and the army that was enforcing reconstruction understood) that the recently freed slaves would have the right to bear arms in order to defend themselves from whites who would attempt to re-subjugate them.
The idea that the 2nd Amendment only applies to state organized troops like the National Guard is a idea that was created out of thin air as the means to justify a predetermined ends. No serious legal scholar gives it any credence.
This is not to say that the rights under the 2nd and 14th Amendment are unlimited. The framers and their contemporaries did pass laws about eligibility to own a weapon, the types of weapons that could be owned, etc. In the Heller decision that is currently the most important bit of gun control jurisprudence, Justice Scalia writes that there is no constitutional problem with prohibiting felons and the mentally ill from having guns, or banning guns from sensitive areas like government building and schools.
Given the fact that gun prohibition would require a constitutional amendement overturning the 2nd Amendment, and that pro-gun voters are very motivated, it is virtually impossible to imagine a situation where such an amendment would pass.
2. Gun Prohibition - Is It Even a Good Idea
A lot of what is published from advocates on both sides of the issue is deliberately misleading. It takes some effort and research to form a rational informed opinion.
For example, gun control advocates will frequently point out the murder rate in the United States is much higher than in other parts of the developed world. While that is accurate, it is impossible to assign that difference to gun control laws, as opposed to other cultural, social, and economic issues. In the best possible world, we'd be able to take a single society, split it in half, and let half operate under gun control rules and the other operate without such rules. Obviously, these kind of experiments are impossible.
The next best thing would be to look for countries that recently enacted much stricter gun control laws and compare the before and after statistics. Over a few years, the social economic, and cultural differences should not have changed dramatically and so the effect of gun control should be more easily detected. Fortunately, we have an excellent case study.
In 1998 Australia enacted an almost complete gun prohibition. Farmers and hunters were allowed to have some rifles for dealing with wildlife and feral animals, but almost all other guns were banned. Existing guns in circulation were mandatorily bought back from citizens. Prior to 1998 the rate of firearms murders was about 1.4 per 100k people. After 1998 the rate of firearms murders fell to 0.4 per 100k. This would seem to indicate that gun control was a rousing success, and indeed some gun control advocates have presented it as such.
When you look a little deeper into the numbers you see that the success was illusory. Before 1998 the murder rate was about 1.7 per 100k. After 1998, it was still about 1.7 per 100k! Gun control did not affect the murder rate at all, and society was no safer. More recently the murder rate has fallen to about 1.4 per 100k, an 18% decrease. This small decrease happened in crime across the board, and is likely to be the result of changing demographics as much as anything else. In comparison the murder rate in the US over the same period fell about 60% while gun ownership was expanding.
It is not enough to demonstrate that a very narrow category of crime fell. The point is to make society safer, and if the method of crime changes but does not fall, the policy is a failure. No one dying from a stab wound says "Well, at least I wasn't shot!"
On the flip side, gun rights advocates are fond of saying that crime falls when gun ownership rates rise. There are indeed some studies that indicate that this may the case, but it is far from settled and the effect, if it exists, is small.
When one looks at the data overall, one can conclude that crime does not go up when gun ownership rates rise, and it might drop a little bit, but it is tough to be sure. Any source that implies anything different is trying to manipulate facts for their own ends, rather than letting the facts stand on their own. There is absolutely no reason to believe that gun prohibition makes us any safer from violent crime.
3. Does Any Gun Control Make Sense
Yes, it does. While there is no reason to keep guns out of the hands of healthy, law abiding, responsible adults, there is no reason that we can't try to make it more difficult for criminals, the mentally ill, and the irresponsible to get guns. Furthermore, the biggest public safety issue from legally acquired guns is not crime but accidents. Background checks are a great idea that can be implemented without onerous limitations. A requirement for safety classes could still be useful in reducing accidents. There is no reason that any of this can be done without impeding any rights.
4. What Could a Gun Control System Look Like
I would suggest that a federal law be passed to pre-empt state by state regulations with the following system.
First, a national registry should be maintained of people that shouldn't have guns. Think of it as a no-fly list of sorts - a no-shoot list. Felons would be on this list. Also, mental health professionals should be able to add people to the list that they are concerned about.
People could also be added to the list with a built in expiration date. Something that was short of a violent felony but demonstrated irresponsibility or poor judgement could put someone on the list for a period of time. Someone convicted of a "drunk and disorderly" might have their name added to the list for a few years. During divorce proceedings it is difficult to tell what accusations have merit and what accusations are trumped up. A judge presiding over a divorce and asked to put a restraining order on a party can also put them on the list for a year or two. These kinds of additions would automatically expire at the end of the time period.
A redress process would be put in place to handle mistakes like people with similar names. An appeals process would be put into place right from the beginning to prevent abuse. Severe sanctions would apply to a public official like a governor who attempts to implement a gun prohibition by simple adding everyone in his state to the registry.
Mandatory Safety Training
Everyone who purchases a gun would be required to successfully complete a safety course and renew the course certification every several years. The cost and duration of the course would not be so large that it would constitute a barrier to an average citizen completing it.
Sales of Long Guns (rifles and shotguns)
All sales of rifles and shotguns would require that the seller check the no-shoot registry and that the buyer can show certification of mandatory safety training. There is no "gun show loophole". Smart phones should make it easy enough to do a check even at a gun show. Private sellers must also do the same checks. Sellers must maintain a record of the sale including a "transaction record" for the background check, and allow the police to see those records when they are investigating a crime. There would not be a registry of all long gun owners.
Sales of Short Guns (pistols)
In addition to the requirements to long guns, short guns will be subject to additional requirements. The purchaser must have a permit to own a pistol. The permit can include additional background checks to insure that the person is not known to be of bad character. Local police will be queried, but the permit shall be issued unless the police bring some evidence that it should not be. The sale must be registered. There is a registry of all pistol permittees. A waiting period of no more than 10 days can be imposed in order to perform background checks.
A pistol permittee will be allowed to do the following...
- Keep the pistol for use in target shooting competitions and practice, using it at a range, carrying it in a locked container to and from the range, etc.
- Carry the pistol in the permittee's home, or on other private property with the permission of the owner.
- Openly carry the pistol while participating in an activity where people normally are armed to protect themselves from wild animals. A fisherman in Alaska could keep a pistol on his belt in case a grizzly bear decides to have him for lunch.
A pistol permittee would be required to...
- keep the pistol in a sturdy locked box or unloaded with a trigger lock in place when it is not being carried or in the permittee's grab-able area. If the permittee is using it for home defense, it should be with him at all times. It should not be left someplace where another person could find it.
Concealed Carry Permits
In addition to the requirements for owning a pistol, a permit for concealed carry would be issued upon a more thorough background check with the local police and additional training and safety classes. A waiting period of not more than 90 days can be imposed to allow the background checks and investigation to be performed, however the permit shall be issued unless there is evidence that it should not be. The concealed carry permittee must be at least 25 years of age.
The concealed carry permittee would be allowed to carry a concealed weapon in public areas except for limited places designated as sensitive and marked as such. Private property owners would be free to prohibit concealed carry on their property, however employers would be required to provide a place or method for concealed carry permittees to safely store their guns while at work, and pick them up when leaving the employer's property. Public employees who work in sensitive areas would similarly be provided with a way to store their guns safely while at work.
Purchase of ammunition will also require a check of the no-shoot list. A person will not be allowed to give another person ammunition without checking the list unless they are both at a range and the ammunition will be consumed there, not taken off the range.
No person shall privately own and possess a clip or similar fast reloading device with a capacity of more than 10 rounds of ammunition. Existing clips can be modified by a gun smith to hold 10 or fewer rounds. Shooters at a range may use larger clips so that they spend less range time reloading and more time practicing. A shooter may own one or more large clips that are kept in the custody of the range, or the range may maintain large capacity clips that are loaned to their patrons. Large capacity clips should not be removed from the range except to transfer to a different range or to a gun smith for repair or modification. The transfers shall be tracked and if a transfer is not completed properly the police shall be notified.
Loss or Theft
The police must be notified in case of loss or theft of any firearm. An owner must store firearms in such a way that they can be frequently checked, and a theft detected in a timely basis.
5 - Could a This Get Enacted
The key thing when creating a law about a controversial subject is that there needs to be something for everyone. Each side needs to give a little in order to get a little. I've tried to balance all sides with a healthy dose of common sense.
For The Gun Control Proponent
Everyone is subject to a background check - the no-shoot list.
Mental health is included in the background check.
The gun show/private sale loophole is closed.
A background check is applied to ammunition purchases.
Clip sizes are limited.
Waiting periods are applied to pistol sales.
Criminals can no longer go to states with loose regulation to purchase guns that would be sold illegally in states with tight regulations.
Everyone is subject to safety training.
For The Gun Rights Proponent
Long guns continue to be unregistered.
The right to defend oneself in the home is affirmed everywhere.
Pistol permits are available to people in states where they were previously tightly regulated.
Concealed carry permits are available in states where they were previously tightly regulated.
Gun owners can easily travel since the same laws will apply throughout the United States.