ENOUGH! No More Restrictions (Part II)

Congress Lacks Authority

There is nothing in the Constitution that gives Congress (or the President for that matter) the authority to prohibit citizens from acquiring military style or military type weapons. To do so would "infringe" on the Second Amendment right. None of the authorities given to Congress, not even to regulate commerce, were envisioned to provide them with the power or authority to regulate away the types of arms citizens could own.  As evidenced by this commentary by one member of the delegation to create the Bill of Rights. 

"The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier , are the birth-right of an American ... the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people. "
    -- Tench Coxe    Pennsylvania Gazette, February 20, 1788  [emphasis added]

For the President, to recommend banning "assault weapons" is certainly a violation of his oath of office. His oath requires him to support and defend the constitution.  He cannot plead any ignorance that such a move would be blatantly unconstitutional since he was reportedly a teacher of constitutional law. For the President to urge Congress to exceed their authority, both despite the plain history of the constitution and the recent Supreme Court decision that firearm ownership is an individual right, is a clear, willful and wanton violation of his oath and the Constitution.  The Supreme Court, as far back as 1939 has said that military type weapons are protected by the Second Amendment.  

If this president had suggested this kind of action in 1875 against the repeating rifles like the Henry or Winchester rifles, it is likely that if Congress did not move to impeach him that many residents of the eastern states would have called for charges of treason!  

Other measures called for by the president will likely be ineffectual in preventing further attempts at mass murder by deranged individuals. Simply banning certain weapons will only result in these people planning to use improvised explosives or incendiary devices.  In fact, the worst school massacre in U.S. history was the result of exactly this combination.  And it happened in 1927, when guns were easily bought, sold and traded as easily as selling a hammer or carpenter's level.  

Some of these recommendations, when paired together, allow us to extrapolate how they may be used to justify further restrictions.  Take these two recommendations;

• Push for mandatory laws on reporting lost or stolen firearms.
• Require any gun recovered in any criminal investigation to be traced (presumably even if the owner is known).

There is nothing inherently wrong with a reporting law. But such a law must be fair and reasonable. Any time limit on reporting must begin with the discovery of the theft, not the actual theft itself.  A firearm stolen the day after you leave for a two week holiday cannot be reported stolen until the owner return. One worry here is that government will enforce this law to the limit and prosecute someone for reporting at 48¾ hours because he was waiting for a friend to check inside his car or home.  

Equally disturbing is wasting resources by mandating all guns be checked in a criminal investigation. "Any criminal investigation" would include misdemeanors in which a firearm plays no part and the crime has no bearing on the person's ability to own gun.  Police can deem any firearm found during an investigation as "recovered." This means if you call police regarding a prowler and when they arrive, you have said prowler at gunpoint, they will then be obligated to trace your gun. If that takes several days, you'll have try to get it back (good luck) and undergo another background check to get your own property back (in some states you'll fork over $19 for that privilege).  

• Step up efforts to prosecute felons attempting to buy guns and those providing false information when purchasing guns.

While this sounds good, I'm dubious about it working.  The graphs below will help illustrate why I don't have much confidence that this will reduce much crime or have a great impact on crime. I'm also dubious that convicted felons who have a modicum of "smarts" will go to gun retailers to obtain guns, versus buying them out of someone's trunk on the street. 

The chart above shows all NICS checks for 2009 and the percentages for rejections. But percentages can be misleading.  There were over six million NICS checks in 2009 which resulted in 67,300 denials. Of those denials, 14,200 people appealed them and 23% or about 3,300 were later cleared.  The good news is that 44,000 rejections were for felons and wanted fugitives (including deadbeat dads and people who had failed to pay fines in full). The vast majority of people (99.02%) purchasing firearms are legitimate, law abiding "good guy" citizens. The remaining less than 1% (0.977% for the detail oriented) less those who successfully appealed looks like the chart below

NICS Denials by Type. Represents 0.977% of all NICS Transactions

It is important to remind the reader that the entire "pie" above represents less than 1% of all background checks.  Thus, the 48.5% shown for felons represents less than ½ of 1% of the total checks.  Currently, mentally ill people make up less than 0.013% of the total.  These stats show that gun buyers are overwhelmingly legally entitled to do so.  

NICS Denials by Disposition - 2009

In 2009, there were over 71,000 denials, of which 4,600 were referred to an BATF field office for investigation.  This resulted in only 140 cases referred for prosecution and only 32 convictions or guilty pleas. All this thrashing around and expense for very few prosecutions makes me wonder if we can't find a better way to stop prohibited persons from obtaining firearms.  It makes me wonder why, out of some 32,000 felons, 11,000 fugitives and over 6,000 drug addicts being rejected why only thirty-two (0.0005% of all NICS checks or 0.045% of all denials) prosecutions.  Why does BATF not follow up on known felons trying to obtain guns in violation of the law? 

Gun Control Doesn't Work

After weeks of looking at data from the FBI, CDC, NIJ, BJS and other alphabet soup agencies that publish statistics I've tried to find a relationship between violent crime, homicide and gun control with no luck.  There is no correlation between the enactment of any gun control laws and a reduction in crime. 

Violent crime and homicides peaked in 1991 and began a downward trend that continues today. The current  rate of violent crime is about the same as we had in 1972 (~400 per 100,000).  The exact reason for the decline is not well understood and perhaps some researcher will find a relationship to explain the decline. 

With this decline beginning in 1991 we cannot credit the Brady Act (1994) or the Assault Weapons Ban (1994) for lowering the violent crime or homicide rates. The Gun-Free School Zone act was passed in 1990 but ruled void by the courts and updated in 1995.  Some states passed versions of a three-strikes law which may have had some impact, but that remains to be studied. 

The only apparent relationship I could find was by accident when looking at historical immigration trends (for a different project actually). In this case, there is an apparent relationship that deserves further scrutiny before suggesting a cause and effect relationship.  But I must admit I find the idea may have some merit in understanding the peak in violent crime given the amnesties and immigration issues that have embroiled our politics for too long. 

Hopefully this blog has given you some food for thought.  I hope you are questioning the effectiveness of adding more "gun control" to solve a problem that does not respond to deterrent laws and laws that act mostly upon the law-abiding people of the country.

It is time we focused on making the use of a gun in a crime a serious penalty for criminals. And I mean for the true criminals - people with a criminal history that indicates they skirt the laws or have felony convictions. These are the ones we want to dissuade from using a gun. The only way I know to do that is longer prison sentences that allow the criminal to "grow out" of the violence of youth.  If we need to release non-violent offenders and small-time offenders to make room, then we can probably live with that if the violence continues to diminish.

Please, leave a comment if you found this article interesting or if you have something to say.