WASHINGTON, D.C., February 9, 2013 — The national debate about controlling access to guns evokes high emotion and dissent.
There are, however, some areas where all sides agree.
People can kill. Guns facilitate that killing. Guns alone, not in the hands of people, do not kill. In the hands of the wrong people, guns can be very dangerous.
Guns can also protect us.
Guns also, by design, are inherently dangerous. A gun’s discharge creates violence, damage and wreckage whenever used, for any purpose. The purpose of a gun is to put a hole in something, whether that means killing a duck, knocking a can off of a fence, or injuring or killing someone, purposely, or accidentally.
Other things that can become dangerous when in the hands of the wrong person are not inherently, on their own, designed to create violence or damage. The primary purpose of a car, for example, is not violence or damage.
We all must agree therefore, that we should pay special attention to guns.
Indeed, since our country’s founding fathers adopted and passed the Second Amendment to our Constitution, the country has paid considerable attention to guns.
The Second Amendment says in part:
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.
The Second Amendment, now generally offered as the basis for our individual “right” to own “arms,” has not always been interpreted as giving individuals such a “right.” For more than a century, the country agreed that the meaning of the Amendment was related only to the rights of citizen militias, and there was no barrier on “gun control.” The country did not construe the Second Amendment to give private individuals the “right” to possess arms.
Constitutional scholars have always disagreed about whether the Amendment refers to militias or if it addressed an individual right to possess arms.
After a 1939 Supreme Court case, United States v. Miller, hundreds of courts rejected the individual rights view. The Court in that ruling found that individual gun ownership, when not having a “reasonable relationship” to the preservation or efficiency of a well regulated militia, was not an individual right.
Later, gun advocates invested extraordinary time, money and energy to create a new understanding of the Second Amendment.
The efforts paid off, as even our President, a liberal Democrat, is on board with the interpretation that provides individual rights to gun ownership. During the 2008 election, the President stated “there is an individual right to bear arms, but it is subject to common sense regulation just like most of our rights are subject to common sense regulation.”
The then-junior Senator’s comments on “common sense regulation” seem intelligent, straightforward and obvious. We must all agree.
The question of “rights” provided by the Second Amendment must not cloud the bigger picture: guns in the wrong hands can injure or kill people, and therefore, society and laws must pay attention to both “the person” and “the gun.” Talking about the Second Amendment does not eliminate the possibility of a bad end result when guns and the wrong person mix.
We must agree that the potential harms of guns in the wrong hands necessitates that we, as a society, act to try to prevent those harms. We must agree that there is more to preventing those harms than simply addressing guns.
We must agree that there are societal flaws that lend to violence. We must agree that mental health issues, poverty, education, gun-safety education, and individual responsibility have to be addressed. We must address gang violence in our country. We must address drug-based violence.
We must agree that there are simply some people who should never be allowed to possess a gun. Children, convicted violent criminals, and those whose mental illnesses prohibit them from understanding the dangers of guns top the list. We must increase efforts and initiate procedures to prevent straw purchases – when an ineligible gun buyer hires someone else to purchase a gun on his behalf.
We must agree that we cannot rid our country of guns. We must agree that the “problem” is limited to a very small percentage of people who use guns. We must agree that law-abiding people are not usually the problem. We must agree that safety locks are necessary.
Good laws can help reduce the risk of danger from guns in the wrong hands. Drunk driving behavior is a perfect example of an analogous situation. We have not eliminated this horrible crime. Yet, laws, public education and technology are all responsible, in part, for a reduction of this crime. National Highway Safety Administration statistics reveal that drunk driving fatalities decreased 48% from 1991 to 2010.
There are laws that now exist which stand in the way of accomplishing a movement toward reducing gun violence. Some of these laws need to be repealed. Common sense must rule.
We must agree that safety and the right to life trump financial gain. We must agree that legitimate gun owners and their organizations, such as the NRA, must be a part of the dialogue to reduce violence and to promote life and safety. Those with vested interests in gun sales must be willing to sacrifice some financial gain.
Doctors (including mental health therapists and counselors) and insurance companies must be allowed to ask questions and record information about firearm ownership, usage and storage. We must allow warnings from those who are in a position to know early on about a danger. Doctors and those who ostensibly protect us are a source for weeding out potential dangers. We must be willing to bend on our right to privacy a bit for the greater good.
A law signed last year by Florida’s Republican Governor Rick Scott threatened doctors with the potential loss of their medical licenses for recording information in patients’ files about firearms. A federal judge then ruled the law unconstitutional and blocked its implementation. Florida officials have appealed.
The 2005 Protection of Lawful Commerce in Arms Act, granting the gun industry immunity in state and federal court from civil liability in most negligence and products liability actions must be repealed. While there are exceptions in the law, it has been broadly interpreted to prevent most negligence lawsuits. The result is that – unlike the makers of chain saws, knives, automobiles, drugs, alcohol or even cigarettes – gun manufacturers and sellers have a lesser obligation to act with reasonable care for public safety.
Numerous cases have been dismissed on the basis of the law, even when the gun dealers and manufacturers acted in a fashion that would qualify as blatant or gross negligence if it involved other products. Victims in these cases were denied the right to introduce evidence of negligence and seek justice.
Most gun dealers are responsible businesspeople. A study from the Bureau of Alcohol, Tobacco and Firearms in 2000 showed that 85 percent of dealers sold no guns used in a crime. The study found that one percent of dealers sell 57 percent of the guns that end up being used to commit criminal acts. Good dealers do not need special protection from the law. Bad and negligent gun companies do not deserve it and should be responsible.
Colorado Democrats recently introduced legislation that would subject owners and makers of assault-style weapons in Colorado to civil liability, in contravention to the law. Some argue this law is a back-door effort to limit gun sales. If the law limits gun sales to criminals or others who should not have guns, I hope that argument is right.
We cannot protect ourselves from all dangers. We cannot always protect people who gather in large numbers. We cannot have security checkpoints at all shopping malls or churches or stadiums or open-air neighborhood ballparks. We cannot collect all of the illegal guns. We cannot legislate bad people.
We must agree that background checks are necessary. We must agree that education in our inner cities needs to be improved. We must agree that gun education needs to be part of our national school curriculum. Zero-tolerance laws in schools must be enforced and where they do not exist they should be instituted. We must agree that mental illness must be addressed and intervention must be early.
Common sense must rule gun regulations. An overnight or even short term success is unlikely, as societal changes take decades. Likewise, any successful effort to reduce gun violence will also take years.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics. Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show, the featured legal analyst for America’s Radio News Network, heard in 165 markets nationwide, and he is a columnist on the Washington Times Communities.
His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.
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