Thursday, September 4, 2008
Controversy surrounding gun control issues seems to have dissipated somewhat following the demonstrated effectiveness of shall issue concealed carry laws and many states' adoption of the same. However, Second Amendment supporters still have a long way to go.
Even after SCOTUS recognized an individual right to keep and bear arms in District of Columbia v. Heller, 128 S. Ct. 2783, 2821-22 (2008), D.C. denied Dick Heller's attempt to register a semiautomatic .45, because the city's law defines any gun that loads from the bottom or is capable of holding more than 12 rounds at a time as a "machine gun." Mr. Heller later successfully registered a single-action Colt .22 revolver. Because the Heller challenge was narrowly tailored to address only the most onerous portions of the city's ban (and thus maximize the chances for success), a host of unreasonable restrictions remain. The meaning of those restrictions is unclear, but some have opined that they effectively prevent any use of a handgun for home self-defense. The Heller plaintiffs recently filed a complaint for Declaratory Judgment, Injunctive Relief, and Writ of Mandamus to force the city to comply with the SCOTUS ruling.
What's behind all of this? I may be a little biased, but I'm not a die-hard Scalia fan, and the Heller opinion seems clear to me. My position is that some people on both sides of the issue are caught up in too much emotion.
In my private law practice, I advised employers following Minnesota's adoption of its shall issue concealed carry law. That law correctly allows private employers and other private property owners the option to ban concealed firearms from their premises provided a particular warning process is implemented. Private property owners have the right to take into consideration their potential civil liability for acts committed on their premises by a permit holder (even though the data suggest that permit holders as a group are more law-abiding than the general population). But I propose that employers should also consider the reverse: What liability may result by an employer's denial of personal protection to a permit holder employee? The legal theory may be novel, but the factual scenario is not. Imagine a female employee who is working late and is assaulted on her way through the company parking lot because the employer prohibited her from exercising her concealed carry rights. Is this theory any more unusual than class action suits against firearms manufacturers and trans-fat pushing fast-food restaurants? I don't think so. But few people seem to find it convincing.
I think there is often too much emotion involved on both sides of the issue. Heller held that the Second Amendment confers an individual right to keep and bear weapons of the sort "in common use at the time" and allows the prohibition of "dangerous and unusual weapons." Of course, these two phrases leave a lot to future interpretation, but in general I agree with this approach. Some extreme gun-rights supporters would not. Similarly, gun control advocates sometimes seem to have a blind spot that prevents them from even considering the usefulness of a firearm as a tool, even when it could affect their own bottom line. The power of these tools causes some people to be too emotional in their analyses of the issues.
People smarter than me discuss Heller in depth here and here.What's behind all of this? I may be a little biased, but I'm not a die-hard Scalia fan, and the Heller opinion seems clear to me. My position is that some people on both sides of the issue are caught up in too much emotion.
In my private law practice, I advised employers following Minnesota's adoption of its shall issue concealed carry law. That law correctly allows private employers and other private property owners the option to ban concealed firearms from their premises provided a particular warning process is implemented. Private property owners have the right to take into consideration their potential civil liability for acts committed on their premises by a permit holder (even though the data suggest that permit holders as a group are more law-abiding than the general population). But I propose that employers should also consider the reverse: What liability may result by an employer's denial of personal protection to a permit holder employee? The legal theory may be novel, but the factual scenario is not. Imagine a female employee who is working late and is assaulted on her way through the company parking lot because the employer prohibited her from exercising her concealed carry rights. Is this theory any more unusual than class action suits against firearms manufacturers and trans-fat pushing fast-food restaurants? I don't think so. But few people seem to find it convincing.
I think there is often too much emotion involved on both sides of the issue. Heller held that the Second Amendment confers an individual right to keep and bear weapons of the sort "in common use at the time" and allows the prohibition of "dangerous and unusual weapons." Of course, these two phrases leave a lot to future interpretation, but in general I agree with this approach. Some extreme gun-rights supporters would not. Similarly, gun control advocates sometimes seem to have a blind spot that prevents them from even considering the usefulness of a firearm as a tool, even when it could affect their own bottom line. The power of these tools causes some people to be too emotional in their analyses of the issues.
Your thoughts?
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6 Comments:
Becky,
On issues such as gun ownership, we have such a diverse country, you will never have a consensus.
I see validity to the arguments on both sides.
Guns represent something in New York City much different than what they represent in Moosehead , Montana.
The emotion plagues all rational discussion these days.
K
Becky,
Now that you live on this border, has your libertarianism been challenged or reinforced by the bloody drug wars to our south?
Patricia A.
Patricia,
I'd say it's been reinforced. I see examples of the failures of the drug war every day in the news.
The drug war is a complete failure.
Bobby WC
BW,
I beg your pardon.. My friends at Smith and Wesson see no issue with this little fracas.
Kurgan
I agree with the premise of gun ownership and the right of property owners to restrict the possession of personal firearms on their premises. I can choose to go there or not. It also has a lot of history here in the West ie Wyatt Earp in Tombstone. I grew up in the Adirondacks in North New York and had a non- law enforcement personal carry permit that was relatively easy to get. In large concentrations of people more folks are less accustomed to being around weapons so the fear them. So I can see the rationalization.
It still follows that if guns are illegal then only bad guys will have them.
A last comment - since I have come to South Texas and basked in the sense of independance and love of personal freedoms my latent Libertarianism has bloomed.
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