Word from the Chair 10/22/2019 - Gun Law Reform

Word from the Chair 10/22/2019 – Gun Law Reform

Guns are a particularly difficult issue for Democrats in Clermont County and in much of Ohio.  Who has not been told, as I was at River Days in New Richmond a couple of years ago, “I can’t vote for you Democrats because you want to take away my guns?”  We do not have drive-by shootings on Main Street in Batavia, Lila Avenue in Milford, or Front Street in New Richmond.  While the low level of gun violence in our County is unquestionably a good thing, it also means that our fellow citizens do not see gun violence as a threat to them.  Routine gun violence happens in distant places like Chicago and Los Angeles, not here.  Shootings closer to home, like the mass murder in Dayton in August or the murder by gun of a Deputy Sheriff in Pierce Township this summer, happen so infrequently that they are viewed like tornadoes: one of those awful risks of life that you’ll probably never encounter

All of our potential candidates for President support greater controls on guns than currently exist and, unfortunately, we know from history that there will be more mass shootings, probably several, before the November, 2020 election.  That means that guns will continue to be a major, and very emotional, political issue.  We need to be able to discuss the issue intelligently.

The starting point for discussing guns as a political issue is the Second Amendment to the United States Constitution.  In full, that Amendment says, “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.”  Reading that, one might think, as some commentators have argued, that the Founding Fathers meant the “right of the people to keep and bear Arms” to be “well regulated.”  However, in a 2008 decision called District of Columbia v. Heller, the late Justice Scalia, joined by five other Justices, held that the first thirteen words of the Second Amendment are merely “prefatory” and that only the last fourteen words are “operative.”

In other words, the Supreme Court said that the only part of the Second Amendment that really is law is the phrase “the right of the people to keep and bear Arms shall not be infringed.”  As was typical of Justice Scalia’s opinions, there are many analytic flaws in the Heller which Justice Scalia papered over with his gift for rhetoric.

Nonetheless, Heller is quite clear that the Second Amendment means that individuals have a constitutional right to have guns.  The Court reinforced that point two years later in a case called McDonald v. Chicago, in which the Court held that the Second Amendment prevents states and local governments from denying people the legal right to have guns.

What do the Heller and McDonald decisions mean for us?  Most fundamentally, they mean that, even if we want to, Democrats can’t take away your guns.  Democrat Barak Obama was President for eight years, from January 2009 to January 2017.  Had it been the Democrats’ goal to “take away my guns” wouldn’t that process have started under the Obama Administration?  It didn’t.  The “you want to take away my guns” argument is simply false.

Justice Scalia’s majority opinion in Heller raises some other interesting points.  One of the chief considerations which Justice Scalia identified as having motivated the adoption of the Second Amendment was a belief that “when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.”  Leaving aside the blatant sexism in that statement, it shows that there are limits to the Second Amendment.

Ohio already permits the open carrying of firearms, the so-called “constitutional carry,” without licensing or any demonstration that the person carrying the gun has any competence with guns or gun safety.  Bills have been introduced in Columbus, and are expected again, to extend “constitutional carry” to concealed guns.  Thus, not only will people be allowed to carry guns without knowing how to use them safely, we will not even know that someone has a gun until he, or less likely she, uses it.  I challenge anyone to explain how this furthers the goal of having a citizenry “trained in arms and organized.”

Justice Scalia wrote in the conclusion to his Heller opinion that the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”  This summer, I attended an event in Columbus at which a speaker described how he had used the Internet to find over a dozen AR 15 assault rifles being offered for sale by private citizens in the Cleveland area and how he was able to buy one of those military weapons in a shopping center parking lot for cash without ever disclosing even his name.  While I assume that the speaker is a “law-abiding, responsible” citizen, I don’t know that and neither did the person who sold him the AR 15.

Governor DeWine has proposed legislation that would allow private gun sellers to do a background check on a gun buyer if the seller wants to.  Most commercial gun sellers are already required to perform a background check on a putative gun buyer by Federal law.  Will a private seller who has a gun that he wants to turn into cash do a background check if he suspects that the check will reveal some reason why he shouldn’t take the buyer’s money?  Really?  Nonetheless, I have heard interviews with members of the Ohio General Assembly saying that Governor DeWine’s check-if-you-expect-a-gun-buyer’s-record-to-be-clean-bill goes too far.  Why would a “law-abiding, responsible” citizen fear a background check?

Currently there is a petition circulating to allow Ohioans to vote on whether Ohio law should require a background check on the buyer before any gun is sold by anyone.  The Ohio Democratic Party supports this effort.  Universal background checks are what Ohio Democrats want to do about guns.  Is it perfect?  No.  But it will keep at least a few guns out of the hands of people who want to use those guns against “law-abiding, responsible” citizens.  Even under Justice Scalia’s interpretation, the fundamental purpose of the Second Amendment is to enhance the safety of “law-abiding, responsible” citizens.  Keeping guns out of the hands of people whom we have reason to believe are bad actors furthers this fundamental purpose.  This is what we need to emphasize when we talk about guns.

 

 

Cheryl Richards

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