You want axe murderers to be able to
walk into a store & just buy a gun?"
If you've ever
argued against the federal or state laws creating classes of persons
prohibited from owning arms then you've heard that sentence (or one
very similar) before.
The flippant
answer is of course you're more concerned with him walking into a
store that may have axes.
The serious
answer is you're more concerned with him walking into a store.
Before I dive in
here are the links to the previous installments attempting to explain
the Absolutist reasoning:
The Federal
restrictions on people owning a firearm are found in
18
USC 922. Start at (b) for the restrictions on
whom a dealer may sell to (which covers the age restrictions) then to
(d) for the prohibition on those indicted for or convicted of a crime
(among other things), then to (g) for the restrictions on possession
of firearms of the person whom those above mentioned conditions
apply. (i) & (j) covers possession of stolen firearms. (n)
prohibits those under indictment (for crimes that carry a penalty of
more than 1 year) from legally buying or receiving firearms. (x)
deals with juvenile possession of handguns & handgun specific
ammunition. (y) defines & lists exemptions for aliens.
18
USC 921 deals with definitions. (a) (14); (a)
(15) & (a) (20) are of particular relevance.
In fact, here's
(a) (20) in its entirety:
"(20)
The term ''crime punishable by imprisonment for a term
exceeding
one year'' does not include -
(A) any Federal or State offenses
pertaining to antitrust
violations, unfair trade practices,
restraints of trade, or other
similar offenses relating to the
regulation of business
practices, or
(B) any State offense
classified by the laws of the State as a
misdemeanor and
punishable by a term of imprisonment of two years
or less.
What
constitutes a conviction of such a crime shall be determined
in
accordance with the law of the jurisdiction in which the
proceedings
were held. Any conviction which has been expunged, or
set aside or
for which a person has been pardoned or has had civil
rights
restored shall not be considered a conviction for purposes
of this
chapter, unless such pardon, expungement, or restoration of
civil
rights expressly provides that the person may not ship,
transport,
possess, or receive firearms."
(a) (32) &
(a) (33) define the domestic violence misdemeanors & restraining
orders used a a basis for disqualification.
18
USC 925 (c) establishes the procedure for
getting a reprieve from disabilities on the federal level. It should
be noted however that since the early 90's congress has refused to
fund this activity, hence no relief from a firearms disability has
been granted under 18 USC 925 (c) in over a decade.
& just so ya
know,
18
USC 931 prohibits violent felons from
possessing body armor.
18
USC 924 deals with penalties for violating
anything found in 18 USC Chapter 44 (which encompasses all firearms
laws except the National Firearms Act which is found in
26
USC Chapter 53).
So now that
that's all on the table let's surmise:
If you've been
convicted of a crime that can land you a sentence of one year or more
(or in some cases 2 years & excluding certain trade &/or
business law violations) or a misdemeanor relating to domestic
violence, or if you're being indicted for a crime whose punishment
can exceed one year (or in some cases 2 years & excluding certain
trade &/or business law violations) or if you're subject to a
restraining order pertaining to domestic violence then you cannot
legally purchase or receive a firearm in the united States. With the
exception of the indictment mentioned above if any of the conditions
of the preceding long-ass sentence apply then you cannot legally
possess a firearm or ammunition in the united States.
To give you an
idea of what kind of criminal activity creates such a disability
under 18 USC Chapter 44 we have only to look at
18
USC Chapter 61 Section 1301:
"Whoever
brings into the United States for the purpose of
disposing of the
same, or knowingly deposits with any express
company or other
common carrier for carriage, or carries in
interstate or foreign
commerce any paper, certificate, or
instrument purporting to be or
to represent a ticket, chance,
share, or interest in or dependent
upon the event of a lottery,
gift enterprise, or similar scheme,
offering prizes dependent in
whole or in part upon lot or chance,
or any advertisement of, or
list of the prizes drawn or awarded by
means of, any such lottery,
gift enterprise, or similar scheme;
or, being engaged in the
business of procuring for a person in 1
State such a ticket,
chance, share, or interest in a lottery,
gift, (FOOTNOTE 1)
enterprise or similar scheme conducted by
another State (unless
that business is permitted under an
agreement between the States in
question or appropriate
authorities of those States), knowingly
transmits in interstate or
foreign commerce information to be used
for the purpose of
procuring such a ticket, chance, share, or
interest; or knowingly
takes or receives any such paper,
certificate, instrument,
advertisement, or list so brought,
deposited, or transported,
shall be fined under this title or
imprisoned not more than two
years, or both."
Now I'm no
lawyer (I make an honest living) but if I read 18 USC 1301 correctly
then if you get caught & convicted for mailing your cousin that
newspaper ad for the Islamabad lottery where the grand prize is 2
chickens & a ferret then you can no longer legally own a firearm
in the united States.
I know I've been
sleeping better at night after I read that.
Again, my
slumber is sounder knowing those vile flower-mongers will never wield
projectile weapons again.
I could go on
but honestly it's time consuming & logically exhausting searching
the u.S. Code. It's almost like the damned thing was written by
lawyers, for lawyers. The point is that it's not merely axe-murderers
who are prohibited from legally owning a firearm in the u.S. & I
think most people would agree that the category encompasses too many
folks who really aren't a danger to society. Of course there are the
strict law & order types who assert that any violation of the law
shows a lack of judgment & therefore just grounds for
disqualification from owning weapons. I'll try to get to those folks
in a bit.
What sticks with
most folks though is the question that started this post. "You
want axe murderers to be able to walk into a store & just buy a
gun?"
The obvious
answer is of course no. But the problem I have is not the result (axe
murderers not able to get a firearm) but the method of achieving it.
The problem wouldn't be that he or she could legally purchase a gun
after serving time for murdering someone with an axe; the problem
would be that he or she is not still serving time for murdering
someone.
All murders are
not equal. I'll grant that. There could be some circumstances where a
lighter punishment than life in prison is warranted. But I cannot
fathom why we would be okay with letting someone out of prison in the
first place that cannot be trusted with a firearm. If a person is
released then in theory his debt to society has been paid & we
should assume he's capable of possessing dangerous objects without
going on a murder spree.
After all no law
prohibits a convicted axe murderer from buying a car upon his
release. Bleach & other assorted dangerous chemicals are not off
limits. Hell, a convicted axe murderer can, on the day of his or her
release walk into any hardware store & buy a friggin' axe! Yet
somehow we're worried about it being okay for him or her to buy a
firearm?
Laws prohibiting
persons from possessing weapons do not prevent crimes; they encourage
them. How? By creating a defenseless caste of people. The axe
murderer wouldn't have any qualms about stealing a pistol or buying
one from the black market if he intended to modernize his particular
crime fetish. But the 65 year old man who got off with 3 years
probation instead of the 5 years federal time for importing a
verboten flower? Odds are he'd not think about obtaining a firearm.
If anyone knew this & had criminal intent then our 65 year old
flower fiend would be ripe pickins for a robber.
But let's
suppose our 65 year old felon who liked forbidden flowers too much
for the feds liking realized that he needed some sort of defense for
his home. He procures a single barrel shotgun just in case someone
breaks in. Well if someone breaks in & he uses it or if the cops
otherwise find out then he's a felon in possession & in danger of
jail time yet again. All for wanting to defend what's left of his
life.
Yes; if we drop
the prohibition on felons (as defined by federal law) possessing arms
then there will be some very bad people who legally have guns. Axe
murderers, rapists, child molesters, bank robbers & the like. But
honestly, if they were not reformed do you really think a law that
carries a few years jail time to back it up would make a dent in
their plans to commit a capital crime such as murder?
I’m not
saying that since some people will disobey the law then we should do
away with it. What I’m saying is that since the law does not
prevent folks with harmful intent from doing harm but it does prevent
those without harmful intent from preventing harm by protecting
themselves effectively then we should scrap the damned law & try
a different approach.
"But
it'd be one more charge to throw against them & keep them in jail
longer." Well if that's the case then we should make it
illegal to wear shirts. That way anyone caught wearing a shirt after
he's committed some other horrible crime can have the book thrown at
him. Course the problem would be that we all wear shirts & then
it becomes a discretionary issue of who gets jailed. Much the same
way the laws against owning & carrying arms are used, since I’d
wager the majority of “weapons offenses†that lead to
jail time are not committed by violent predatory criminals. But
that’s what you get when you play that game; the ones you
least seek to harm are harmed most while those you wish to be
contained just aren’t bothered by the law.
The problem
isn't not having enough to charge someone with; the problem is not
having stiff enough penalties for the
malum
in se crimes. The answer is in reforming the
sentencing guidelines as well as putting judges on the bench who
realize containment, not rehabilitation is the key goal for those who
are a legitimate danger to society.
OJ. Let's talk
about OJ. Everyone knows he did it right? Well everyone except
a jury of his peers. But let's say OJ wants a gun. He can buy one
right now (well assuming California, in its infinite wisdom, hasn't
banned the model he wants) despite everyone knowing he killed
two people.
Now tell me are
you more concerned about OJ legally buying a gun or about our
fictitious (but based on real models) 65 year old flower felon buying
a hogleg nice & legal like?
Most of you
would be bothered more by OJ packing than a flower fence carrying a
gun. But the way our laws are set up the exact opposite is the case;
the feds are more concerned about any felon than they are about a
person people just know murdered two others in an act of rage.
For the record
neither one of them packing would bother me. That's the beauty of
possessing arms - other armed people are my equals & do not have
an automatic advantage. But even if I was unarmed for some
unthinkable reason, the 65 year old man doesn't seem to have any
harmful intent while OJ really doesn't need a gun to kill.
That's the harm
of prior restraint laws - they punish the innocent far worse than the
guilty. Someone intent on climbing through your window then killing &
raping you (in that order) isn't bothered in the least by obtaining
arms. Someone who had too much pot on him or who didn't do his taxes
or who had ammunition in Illinois without his papers being in order
or who imported the wrong kind of flower would be much more inclined
to obey the law even when it disarmed them.
It would not be
a crime free utopia if felons & other prohibited persons weren't
proscribed in their possession of arms. But it would give a few
people who had no harmful intent an option in case they were ever the
victims of a violent confrontational crime.
The current law
& any variation which prohibited people who are otherwise free in
society from having arms prevent very few real criminals from being
equipped enough to do their nasty work while preventing otherwise
decent folks from protecting themselves.
Now let's look
at a few cases from SCOTUS on the subject:
Barret held that
a felon who did not cross state lines still was subject to the
prohibited persons provisions of the GCA because the firearm (&/or
ammunition) had crossed state lines & thus triggered the
Interstate Commerce Clause's power. This is seemingly contradictory
to a 1943 case,
TOT
v. U.S., 319 U.S. 463 & was mentioned
in the dissent of justices Stewart & Rehnquist. Also mentioned by
the majority opinion was
UNITED
STATES v. BASS, 404 U.S. 336 (1971) which
found that a nexus between possession & interstate commerce must
be proven in order to convict under the felon in possession law, but
in Barret it was explained away as dictum.
So the current
case law holds that it’s proper for congress to prohibit
felons from possessing arms even if they are not engaged in
interstate commerce or involved in any harmful activity.
There is a very
compelling argument to be made that the Interstate Commerce Clause
does not justify such congressional action as prohibiting a certain
class of person from owning arms. I do believe there's an even better
argument that the 2nd amendment explicitly prohibits them from
performing such actions. But the courts aren’t exactly well
known for their constitutional literacy or flawless reasoning.
The problem is
one of conditioning. Even gun owners usually say they don't want
those danged convicted axe murderers buying guns all legal like. It's
simply hard to convince folks that any prior restraint is morally
wrong when they've been conditioned to accept it for so long.
Likewise politicians, who usually have the moral fiber of a desperate
crackhead, don't want to be on the record for "arming axe
murderers".
Pragmatically
the law does more harm than good. No person who wishes to cause harm
is really going to be hindered by it. Black market firearms are all
around. But say for some reason it is harder to gain a firearm, there
are many other items that can be used to cause harm & even death.
Some are even more deadly than a firearm.
Who is hurt by
the law are not the axe murderers, but the flower felon & others
whose offense was not genuinely indicative of a predisposition to
inflict unjustifiable harm. They are denied arms for their own
defense because of a standard set by congress which congress arguably
lacks the authority to impose.
It's just damned
hard to beat a sound byte that says "candidate x wants to arm
axe murderers".
Now to the law &
order argument. As I mentioned above there are some folks who feel
that any felony is indicative of a lack of judgment &/or respect
for out laws & therefore it’s just to prohibit such
persons from possessing arms.
A love for law &
order doesn’t usually motivate such sentiments, but fear. The
idea that a person would knowingly & willfully disregard some law
scares the hell out of people. It doesn’t matter if the law is
a prohibition on murdering children or a prohibition on importing
orchids. It scares them that such a person might wield power; enough
power to defy them, or what they feel is right..
â€Do you
really think a person who wrote bad checks & got convicted for it
has good enough judgment to own a firearm?â€
That’s
another argument I’ve heard. The most effective
counter-argument (imho) is this:
I cannot say
they exhibited great judgment in writing numerous bad checks, but I
can say I worry more about the judgment of those who would decide who
gets to be armed & who doesn’t. Their crimes are in the
past & do not harm me. The power for someone to judge whether or
not I may exercise a Right does harm me, as well as society.
There are people
I know of that shouldn’t be trusted with dull shiny objects.
We all know such folks. But the problem is not in that one person
being denied, but that someone would have such power to deny a
person. Look at any place where there’s a discretionary permit
system in place for firearms possession or carrying. You won’t
have to look hard to see abuses of the system, or denials for folks
who genuinely mean no harm & would do no harm except in
justifiable self defense.
I’m a
fairly stable person. I do have a nasty tendency to tell people what
I think, even if what I think is that person is an ass. I also tend
to run my mouth & not comply when I think a dictate is unjust.
Because of those two things it’s very conceivable that someone
who does not know me would deny my arms if it was within their
discretion to do so. Despite my having been a very safe gun owner for
decades.
Further look at
what’s happened already. In 1938 we ceded to the feds
(actually that socialist bastard just took it) power to prohibit
violent felons from legally buying arms. In 1968 that changed to mere
felons. In the late 1990’s that changed to include certain
misdemeanors & restraining orders. Does anyone wish to bet that
the next attempt will be for simple misdemeanors? How about
“excessive†traffic violations? After all, if you
can’t be trusted to operate a car safely how can you be
trusted with a firearm?
By giving the
government (or anyone for that matter) enough power to disarm someone
who is otherwise free in society we make it easier for said
government to disarm us. I mean you & me. That bothers me much
more than any lack of trust in any person or persons who are among us
in society. I’d much rather risk having the person whom I
wouldn’t trust with dull shiny objects being armed as well as
the recently paroled axe murderer than letting someone else
(especially someone in government) get to decide who is worthy of
being able to defend themselves effectively. In the former state I at
least have a fighting chance as I’m armed as well. In the
latter I might piss off the examiner & be defenseless by law even
though the axe murderer won’t be inclined to obey such a
proscription if he wishes to continue his bad habit.
Making a mistake
with the law is not a true indicator of violent or negligent
dispositions. Now robbing a liquor store & shooting the clerk is
a good indicator that such a person isn’t ready to meld with
the masses. But by attempting to disarm the ones we shouldn’t
let out in the first damn place we only disarm those without harmful
intent.
It’s a
hard sell, & not in the least because we’ve had this sort
of law around for 70+ years in some form or another, but it has been
& will be a chink in our armor if we continue to accept the idea
that some folks are more free than others. Eventually that same
precedent will be used to disarm someone you know whom you’re
also positive had no harmful intentions or negligent leanings. Even
worse it may one day be used against you.
Instead of
backing laws that disarm felons we should back laws that keep the
violent predatory types separate from society while allowing everyone
who we deem safe enough to be free to actually be free.
So the
Absolutist position on felons & firearms can be summed up thusly;
if a person cannot be trusted with arms, he cannot be trusted in
society. Any law that attempts to make exceptions to that, especially
if based upon prior restraint, is not a good law in principle or
practice.
If a person
walks among us freely, then he should be able to defend his life from
unjustified attack. If we deem him unsafe to defend himself then we
should not release him into society.
Again though we
have generations of condition & misapplied reasoning to counter.
It's not an easy task, but one we must undertake. After all, the
freedoms we preserve may very well turn out to be our own.