A REPLY TO COUNTY BAR PRESIDENT JOEL MARK’S RHETORICAL QUESTION, by Lawrence C. Noble

In his November President’s Message, then-Ventura County Bar Association President Joel Mark asks the rhetorical question: “Gun Control: Haven’t we had enough?”

Mark states that “guns certainly make people more efficient in the endeavor of killing.” This is true, but efficient killing is not limited to guns; cars, knives, scissors, baseball bats and letter openers will do just fine also. While the killing tool can always change, the mindset of the killer, whether malicious or mentally ill, will not.

Further, there is substantial literature showing that gun violence is responsible for far fewer deaths than auto accidents and many other non-gun-caused deaths. Thus, Mark’s focus solely on guns is shortsighted if he ignores the role of the “people” who use these instruments.  So, what solutions does Mark offer for the troubling issue of gun violence? He calls for our “elected officials to return to constructive dialogue and compromise to improve all our lives.” But he doesn’t provide any approach for them other than by implicitly suggesting that they amend the Constitution. How? By deleting the Second Amendment? Is there a rational, achievable, less burdensome solution instead?

Let’s start by asking: What death-causing objects should we eliminate from our society? Are there any arguments for eliminating cars in light of all the annual auto deaths? No. What about all the hard objects that could cause blunt force trauma: baseball bats, bottles, chairs, ordinary household objects? No one would seriously consider this as a solution for ending violence. Further, since the banning of gun ownership in the U.K., there has been a documented spike in traumatic violence by knives, bats, fists and hard objects. The British criminal element is apparently enjoying the disarming of the targeted public. Not so in Switzerland, Norway or Israel, each of which permits gun ownership.

Why not just eliminate guns? Well, Mark says that he “gets” that the Second Amendment grants the right to the “people” to keep and bear arms. He also accepts the Heller holding that “the amendment refers to individual rights to keep and bear arms.” While there is no Constitutional proscription on eliminating cars or household items, the Second Amendment specifically bans the government from restricting the right to keep and bear arms. Why?

The Bill of Rights was added to the U.S. Constitution to satisfy the demands of  many of the Framers that the government’s power against the individual be limited. The Framers, who had already fought the Revolutionary War, were well aware that arms could be used for killing. Yet they especially protected the right to keep and bear arms to protect the freedoms for which they had spilled blood.

By implying the deletion of the Second Amendment, Mark states that “the Framers assumed that there always would be… compromise as we adjusted our most organic document to the changing needs of our times.” But compromising recognition of this important American right would not be so easy. The Framers included two ways to amend the Constitution in Article V; either two-thirds of both Houses of the Congress or two-thirds of the Legislatures of the States shall propose Amendments. Article V is prime evidence that the Framers required more than “continuing dialogue and compromise” to amend the Constitution. But by describing the Constitution as an “organic document,” Mark implies that the Constitution is a malleable instrument that easily can be changed as the public whim or a despotic ruler demands. Such easy rules-changing would surely undermine the political stability of the Republic.

There may be more achievable ways of limiting gun violence without doing the violence to our Constitutional protections that Mark seems to favor. Why not pay more attention to the types of people that might misuse the protected gun rights? In almost all of the recent mass shootings, there have been disturbing reports of advance knowledge of erratic behavior and mental illness in the shooters. And yet, people who could have effectively intervened – mental health professionals and family members – did not. Gun registration would not have prevented the Sandy Hook shootings; Adam Lanza’s mother provided her known, mentally-ill son with access to guns as a way of bonding with him. How does a rational society stop that? Universal prohibition of guns, one might say. But that is barred by the Second Amendment’s protection of the right of free people to exercise their sovereign right of self-defense. Some advocates have argued mental health histories are protected by the right of privacy, thereby balancing in favor of possibly dangerous people and against the possible victims. A far less onerous step than amending the Constitution would be addressing how our society may reasonably treat the rights and the dangers posed by people showing behavioral signs of potential gun violence. But this can be done only after considered deliberation that encompasses the right to keep and bear arms enshrined in our Constitution.

In Heller, the Supreme Court ruled that the right to keep and bear arms is not absolute, but is subject to “reasonable regulations;” thus setting the groundwork for deliberation. According to the 2010 Census, California had 9 million gun owners, each one of whom had to pass a State DOJ and FBI background check. The state and federal  governments have already placed many restrictions on the ownership and use of guns. This has been the response of our “elected officials” who have balanced the Second Amendment right with the need for responsible gun ownership. Even Governor Brown, a gun owner himself, vetoed the recent state bill outlawing AR-15 rifles, stating that he doesn’t believe that such “blanket” legislation would enhance public safety.

But this regulatory scheme has failed to consider the population of mentally ill people who should not have access to guns. Filling this gap in the dialogue might be a big step toward answering Mark’s rhetorical question.

Lawrence C. Noble, a sole practitioner, transacts and litigates business and real estate matters, plans asset protection, represents distressed debtors, and advises gun owners about their rights and duties.

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