09 January 2013

Guns & School Shootings, Part 6: Considering Bans, Registration & Limitations of Certain Rights

 “I have a right to [fill in the blank]” can be the most effective argument an American citizen has to settle a controversy. “Rights,” when they actually exist, hold the power of a sacred covenant among citizens who have formed a government.

Rights came about that because the Framers of government – more especially this of ours – believed that unless personal rights were clearly guaranteed, they would be eventually eroded or quickly denied.

Fundamental personal rights of Americans are found in the First, Second, Fourth, Fifth, Sixth and Eighth Amendments to the Constitution:

  • Amendment I - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

  • Amendment II - A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

  • Amendment IV - The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

  • Amendment V - No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, ... ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
  • Amendment VI - In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State ... , and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

  • Amendment VIII - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

The Second Amendment is implicated in our current discussion. 

In the Revolutionary and immediate Post-revolutionary periods, the Framers feared that somehow some right to bear arms for defense would be limited.

Similarly, they feared that absent a free press, censorship would keep the public from having a full view of the events of society. Stifling speech would quiet innovation. Lest the government was forbidden to fiddle with religion, the Framers feared that we would have some mandatory state church. This last right, by the way, has been expanded considerably from the literal words of the First Amendment into a “wall of separation” between church and state.

The Framers feared that absent a warrant requirement, public law enforcement officers would stroll through private homes on the off chance that there was untaxed liquor and so forth.

And so it went.

I have noted over the years that the Bill of Rights generally constrains the powers of government and generally permits some damned indecent behavior. As such, I’ve noted on occasion that it is quite a barrier to efficient government. 

Apparently, the Framers knew that and were willing to accept that cost.

But if you just know that someone is up to no good – maybe they have been profiled but maybe they fit a criminal profile -- we all know those people do that – why not go ahead and take a peek in their car?  That Fourth Amendment can’t be that important. 

If the press is going to publish something harmful or embarrassing, why protect the big publishers rather than those who otherwise will be kneecapped by words that cannot be withdrawn?

We seem to take our rights pretty seriously and seem be willing to put up with a lot of negativity to protect them.

There are number of proposals being bandied about concerning the obvious great crisis with firearms given the Connecticut school shooting of December 2012.  Something on the order of 13,000 Americans die by guns every year. Of those, 1500 are accidental and 2000 or so are justified, i.e., in personal defense.  (Different sources give different numbers, but they aren’t far off.)  Those who seek to control guns say that these proposals are consistent with the Second Amendment even after the United States Supreme Court rulings in the Heller and McDonald cases declared that the Second Amendment establishes a personal right.

Here are a few the proposals:

  • Ban detachable magazines which can contain more than 10 rounds.

  • Ban “assault weapons,” which are apparently weapons that look mean.

  • Ban firearms with semi-automatic actions.

  • Ban weapons with calibers over something modest, say .38 inches.

  • Make the bans retroactive, that is, make possessing those objects already in circulation illegal. After all, this is been done before. The private ownership of gold in the 1930s comes to mind.

  • Require that anyone owning a firearm be registered.

  • Require that every firearm be registered.

  • Make every public sale of firearms (the “gun show exception”) subject to a background check.

  • Require that all firearms transactions, public and private, be through a federal firearms licensee and therefore subject to a background check.

  • Take some unspecified action to keep firearms away from the mentally ill. Some sort of testing comes to mind.

Of course, opponents of gun control say that any of the foregoing violates the personal constitutional right to keep and bear arms.

But some of the arguments of gun proponents are ridiculous:

Adam shoots Barbara with a gun. Therefore, ban guns.

So when Charles beat Darlene to death with a baseball bat, you have to ban baseball bats.

This reductio ad absurdum is not at all helpful. In fact, it is quite silly. While it may amuse and energize the “faithful,” it’s not going to convince any other person of anything relevant to the question of gun control.

So we will begin to examine the ban, registration and limitations of products and activities for which there is a fair comparison. The parameters for what we will examine are that they must be things which create some demonstrable widespread harm even if they have some benefit, and where that harm can be limited by some government/collective action.

Are you ready? Here we go.


Tobacco was a vital part of the colonial economy. The jurisdiction of various levels of courts in colonial Virginia depended upon the value of disputes expressed either as an amount of money or a particular weight of tobacco. The use of tobacco was purely recreational. Europeans loved smoking. By experience, they found that tobacco had some addictive qualities.

Mind you, some “health nazi’s” (to use a right wing slur I’ve heard) today say that tobacco is extremely addictive.

Other than the reported pleasure which comes from the act of smoking itself and its calming effect, it’s hard to think of a single beneficial use of tobacco.  Oh, yeah, it does clean oily film off windshields, I forgot about that.

The harm scarcely needs addressed. It has been proved beyond any doubt that tobacco causes lung cancer, heart disease, emphysema, low birth weight and a host of other ills. It further has been well documented that exposure to “secondhand smoke” causes health effects to those who have not chosen to use tobacco. Any so-called scientists who deny the extreme adverse health effects of tobacco are simply shoddy, back alley educated whores.

Smoking kills 400,000 Americans a year. How can anyone make an argument for anything but a ban?

Well, that one’s a no-brainer. But where have [fill in the blank] been who now want to protect Americans from one certain danger when this beast is out there which has killed so many more for so long? There are no reasons for any exceptions, just ban it.


You saw that one coming.

It has been known by mankind for millennia that  organic matter can go through a change, one we now understand chemically. It changes sugars to alcohol.

The alcohol (ethanol) has an effect on the human nervous system. Relaxation. Diminished inhibitions which make for enjoyable social and perhaps dating situations. Increased quantities can lead to stupor which some few prefer to real life.

Ethanol has an effect on perception and motor control roughly correlated to the amount ingested. If an act requires a level of judgment or motor control be safe, alcohol can reduce a person to a level where the action becomes unsafe.

Alcohol is also considered addictive. It is generally considered to cause directly 75,000 American deaths every year.

Ethanol is reputed to have some health benefits. Some say it thins the blood. Others claim niche qualities such as certain chemical components of wine which may protect against cardiac disease.

Also saw, some organic products can be converted to ethanol to be used as a motor fuel.

Ethanol has minor positives, but on the whole it has been the bane of civilization.

As we know, a ban of alcohol was attempted previously in the United States. 

As an aside, I have to wonder: The right to produce and imbibe alcohol was not clearly delineated in the Constitution. However, everyone seemed to agree in the 1910s that we needed a constitutional amendment to ban it. Since other rights are delineated, one must wonder how mere statutes can do very much to any of the rights which are plainly written into the Bill of Rights - speech, the press, guns, juries, the whole Megillah.

How do we as address the ethanol problem?

Again, an outright ban is the easiest. But if we do a balancing of the interests, it may be that there are minor medicinal purposes important enough to register sellers and register sales. Of course, we would need to do background checks through the government computers to make sure that a potential purchaser has no prior drug or alcohol crime, domestic violence crime or drug/alcohol/mental health medical history. 

Such controls can be defended quite well. When some shabby redneck driving a big pickup truck wanders into the liquor store to buy a couple of bottles of Jack Daniels, the clerk knows damn sure that there is a possibility this yokel is going to go driving with a snootful, cross the centerline, and crash into a school bus full of children.

So what have [fill in the blanks with the usual congressional suspects] been thinking and where have they been?

Videos/interactive games depicting interpersonal violence:

Initially, I thought  video games were pretty cool. I remember finding time on monster college mainframes, ones big enough to run “Asteroids.” The thought that there was a mere machine that could do the mass of mathematics necessary to back that game up was amazing.

Well, you know the story. Games now can place a gamer as a participant in all kinds of activities.

Some game roles are benign, educational and no doubt fun. Microsoft produced a piloting game where you could pilot various aircraft. I doubt that Microsoft Flying (or whatever it was called) ever whetted anyone’s appetite for flying drugs in from Columbia.

But the others! The war games! Good Lord, they don’t deal with just guns, not even with just assault weapons, they give these participants magic assault weapons. They give these poor, deluded children illegal, fully automatic weapons with endless magazines so that they never run out of bullets. The gamers watch as other human beings are torn to bloody, steaming pieces of meat by the streams of large caliber bullets from assault weapons with endlessly large magazines.  The gore of their bloodletting rage is graphic beyond words. And we sanction this! And we protect this “educational/entertainment software” under the First Amendment.

Moreover, when these profligate gun-gamers are themselves shot by their evil foes, there is a little blood graphic on the screen, but they just need to punch the reset button and they are back at work, good as new, it must just have been a bit of a flesh wound.

And those aren’t even the worst games. There are actually games where participants can mimic committing specific crimes of violence using firearms and other weapons. These, too, are supposedly protected under the First Amendment.

How is it possible to justify banning certain implements occasionally used in crimes over possible objections of one constitutional amendment and yet letting another constitutional amendment protect instructional videos teaching youth how to kill and maim in the first place? The mind boggles.


Oddly enough, I have to be a little bit passionate here, too. Like anybody in the Emergency Services Fellowship, I have taken some bodies out of cars. Goes with the territory, but just doesn’t make for a good day. Almost invariability, there’s something which could be done collectively – that is, by the government – to eliminate most of these deaths.

The first and simplest is to lower the speed limit. The amount of energy of a moving object depends on its mass times the square of its velocity. Therefore, the automobile moving at 40 miles per hour has four times the energy of one moving at the speed of 20 miles per hour.   If a 40 mile per hour automobile hits something, there’s four times the energy which has to go somewhere. It will go into the object it hits  and if that’s another car, its occupants; and it will be absorbed by the automobile itself and its own occupants. The more energy, the more deformation. The more deformation of a person, the more likely they are dead. This is really simple stuff.

Reducing the speed of accidents drastically cuts down on deaths and injuries. So the first thing that government can do RIGHT NOW is cut the speed limits to something safe – say 50 miles an hour on interstate highways and 30 miles an hour on two-lane secondary roads. Sure, everyone would complain, everyone would be talking about their right to go here and there, but they don’t have a right to kill people. Inconvenient? Sure. But motor vehicle accidents kill 33,000 people per year.  One simple statute will save more than twice the number of lives as we have been babbling about for the last month.

Consequences? Of course. What else is new?

Also, there are simply some vehicles that should not be out there, the “assault weapons” of transportation. Here I’m referring to motorcycles. Someone is 17 times more likely to be killed riding a motorcycle over a given route than he or she is to be killed traveling the same route in an automobile. What is utility of a motorcycle? It’s fun. It’s probably fun that can be seen as constitutionally protected one way or another. Hell, I used to love to get on the bike and take a ride. But it’s still dangerous. And don’t we have an obligation to protect the children?

Further, we can keep certain identifiable criminal elements from obtaining these dangerous vehicles. A certain identifiable criminal element centers upon the motorcycle as its mode of transportation and intimidation. Who would Hell’s Angels Classic Car Club scare?

[Note to the gentlemen of the road:  Kindly look up “irony” in the dictionary if you haven’t already tweaked to the fact that this is what’s going on here.]

[Oddly enough, though, the case for banning motorcycles is as good as the one for banning guns.]

Moreover, the technology exists to make accidents much more survivable when they occur.   Those who like to watch automobile racing see some collisions at very high speeds from which drivers emerge unscathed. These cars are built to very high standards to be very safe. They have extremely strong steel cages that surround the driver. The driver seats are very safe and the drivers wear protective equipment including helmets. The stationary objects around racetracks are prepared are protected by collapsible barriers which change a fatal deceleration event into a survivable deceleration event.

Materials are available for the automobiles themselves, honeycomb layered metals for example, would form very effective crash protection.

Put all of this into effect on the public roads and in autos sold to real people.  All of this would come at a cost.  What are we afraid of?  Money?  To protect the public?  To protect the children?

To the usual suspects in Congress  – who are you afraid of? Could it be that the car manufacturing lobby or the oil company lobbies beat the NRA ragged?

I suppose I could also say some things about the Murderous Meat Markets, and Satanic Sellers of Sugar, although Mayor Bloomberg is working on the latter.

There are lots and lots of things we can be doing to protect the public - the children - if we’re just willing to push on that ol’ Bill of Rights.

What’ll we do?

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