Firearms

A phrase that’s been floating around lately is “common sense gun reform”. Which is a measured way of saying “gun control”. Personally, I agree that we need “common sense” firearm restrictions, and I think the vast majority of Virginians would. There is, however, disagreement on what the extent of “common sense” is. One reform that Democrats in Congress proposed under that banner (and even staged a sit-in for) was denying gun purchases to individuals on the no-fly list. There was even a catchy slogan, “no fly, no buy”. Personally, I don’t consider that common sense. The ACLU did a nice write-up on this. The no-fly list is error-prone, secret, difficult to appeal, and generally arbitrary. It shouldn’t be applied to travel, and it really shouldn’t be applied to firearms.

Owning firearms is defined as a right in this country, but it’s a right that should obviously be restricted on account of the immediate danger to life it holds. In the same way, we have an undeniable right to freedom of speech, but not to rile a mob up to a lynching, or, famously, to shout “fire” in a crowded theater. Situations of potential immediate danger to life and limb necessitate restriction.

In Virginia, we have implemented a number of restrictions. Felons, Mentally Ill individuals, Persons under a restraining order, Domestic abusers, and Drug addicts all cannot purchase or own firearms. There is a system in place to allow licensed dealers to check potential buyers against this instantly. A permit is required to carry a concealed weapon, and that permit is dependent on passing a safety and knowledge test. Private citizens are not allowed to carry when intoxicated, or when in particular public gathering places. All of these are common sense gun regulations that I support.

Before I start into the changes that I would like to see and intend to propose and convince my prospective fellow Delegates on, I’d like to take a second to address the fundamentals. Why is “the right to bear arms” a right? Why should it be restricted? And how should it not be restricted?

Why is “the right to bear arms” a right?

Virginia’s Constitution guarantees a right to bear arms similarly to the US Constitution, but with somewhat more clear language (a quick point that the “therefore, the right of the people to keep and bear arms shall not be infringed” line was only added in 1971):

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

The “well-regulated militia” line is rather often misinterpreted. A common argument for restricting the gun ownership of private citizens is that the right to bear arms is only valid in the context of a militia, and as those individuals are not in a militia, nor are they “well-regulated”, there is no such right. However, a well-regulated militia was never intended to be a constant thing. Indeed, that is explicitly stated in the text: “that standing armies, in time of peace, should be avoided as dangerous to liberty”. It only appears that “militia” is different from “standing army” in modern times as we have moved to a significant professional standing army post-WWII. Instead, the meaning here is that individuals should know how to use a firearm, such that in case of need, a militia could be raised at a moment’s notice, and minimal additional training would be required.

There’s a debate to be had as to whether we should remove such lines from the respective constitutions in light of our current, rather significant, standing army. Or, perhaps there is an argument to be made that we should not have such a, again significant, standing army. But that’s a broader discussion, generally outside of the scope of the Virginia House of Delegates.

There are two other arguments made for why individuals might have a right to keep and bear arms. First, that it is an absolute check against tyranny. Second, that individuals have a right to defend themselves. The first isn’t particularly relevant in the context of the aforementioned, again significant, standing army. The second isn’t explicitly mentioned in the constitution, but is part of our legal system via inherited English common law, and has been upheld by the USSC in DC v Heller.

Summary: Individuals have a right to bear arms in the name of both the perceived necessity of a knowledgeable populace, and in the name of the more natural right to self-defense. That right is neither absolute, nor restricted to the explicit context of a militia.

Why should it be restricted?

No private citizen should own nuclear weapons. Or tanks. Or RPG’s. Or flamethrowers. Or fully automatic machine guns. All of those are weapons. All of them would likely be used by a militia in time of emergency (or, more likely, by the Army in case of conscription). All of them could conceivably be used in case of self-defense (although you would certainly have to reach to concoct a scenario for nuclear weapons, I assure you that it’s possible). But it’s rather intuitively obvious that they only belong in the hands of an Army, for use in extreme need in defense of us all. Let’s step beyond the intuition.
The balance, as I see it, is one between practical value and potential danger. A fully automatic machine gun provides little practical value to a private citizen beyond a semi-automatic machine gun, but provides a significant amount more danger, even to the best of citizens. A convicted felon might get significant personal value out of owning a firearm for self-defense, but presents an obvious potential danger to the rest of society. So, in both cases, we should restrict it.

The trick to good regulation, then, is to find that balance. And, unfortunately, the government isn’t omniscient. And the law can only be so complex. So the real trick is to try to find a balance that covers the most cases in the best possible way. (a note here to explain what I mean by “the law can only be so complex”. Some people are mentally, physically, and emotionally fit to be citizens at 14, some aren’t until they’re 20. It’s nigh impossible to actually make that determination without allowing for a significant potential abuse of power via arbitrary enforcement, so we go with 18, which seems to be around the median).

How should it not be restricted?

A saying I rather like: “Government is a necessary evil. The problem is, conservatives forget that it’s necessary, and liberals forget that it’s evil.”
Gun control seems to be rather the opposite. There are valid, beneficial reasons for private citizens to own guns. And guns are terrifying and dangerous. I would only need one hand to count how many times I’ve heard people acknowledge both. Proposed restrictions to gun purchase and ownership that don’t consider both are a) potentially stepping on civil liberties, and b) Never, ever, going to get passed in Richmond.

One such restriction was proposed by Governor McAuliffe: “Revoke concealed handgun permits for parents delinquent on child support payments.” Individuals that are behind on child support payments may not be the best of citizens, but it’s not a strong indicator of danger or violence. As such, there is no relevant reason for this restriction. It takes two ideas that are generally considered “bad”, and combines them. That’s great politics, but it’s not great policy.

What Do I Support?

The single most effective law we can implement is to require a permit to purchase a gun. This would handily solve the privacy issues involved in background checks, would close the “gun show loophole”, and would make transactions speedier and easier at the point of sale. Such permits would be issued under “shall issue” language, restricting arbitrary enforcement, although they would be suspendable pending changes in status, like a felony indictment. In order to attain a permit, a citizen would only need to be in good standing (not in any currently restricted category). This license should be free, or at a minimally low cost to cover administrative fees. Lower-income individuals are guaranteed the same rights as higher-income ones.

The overall purpose of that legislation is two-fold. First, making it easier for responsible gun owners to purchase firearms. Right now, at the point of purchase, multiple forms are required, and a background check. Those will be removed to a centralized, pre-purchase process. Second is to make it harder for unqualified potential gun purchasers.

I also support rolling back most of §15.2-915, which restricts the ability of localities to implement their own protections specific to their circumstance and their people. I am generally in favor of government being as local as possible, and I have every faith in the Virginia Supreme Court to knock down any local law that is in violation of Virginia’s established right to firearms.

I support having a discussion about gun ownership, and the rights and privileges therein, outside of the context of the current law. The US and Virginia Constitutions are both malleable, and the language on Gun ownership is out of date in both of them. If we’re going to have a constant standing army, let’s adjust things. If our modern right to firearms derives from a right to self-defense, we should update our constitution to reflect that. If we want to ensure the right to self-defense, but consider firearms merely one of many potential means to that ends, our constitution should reflect that. It was built to be changed.