Short Relief: Background checks, education, licenses won't curb the 2nd Amendment

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On my way down to New Jersey to pick up my mother for the holidays, I drove Interstate 84 past Newtown, Conn., where there was no joy this past holiday season.

Once again, the combination of a high-powered firearm and a mentally ill person produced a bloody massacre. Anyone with an ounce of human decency cannot help but be moved by the senseless murder of six-year-old children and the teachers who tried to protect them.

At the same time, we have a Bill of Rights that protects the rights of privacy and to own a gun. We have laws that protect the confidentiality of people’s medical information, especially their mental health information, and laws that make it a federal crime for a person who has been adjudicated mentally ill to possess a firearm. We have freedom of speech, and an entertainment industry that produces ludicrously violent shows like “Django Unchained” and “A Bullet to the Head.”

According to the conservative/libertarian research institute Just Facts, Americans owned roughly 300 million firearms in 2010, of which roughly 100 million were handguns. (According to The New York Times, about 3 million are semi-automatic, AR-15 type rifles.) That is almost one gun for every man, woman and child in America. Those guns are owned by about 70 million adults, meaning that each gun owner owns an average of about four  guns.

About 42 percent of households contain a gun; 67 percent of gun owners surveyed reported owning a gun as protection from crime; 41percent identified themselves as Republicans, 23 percent as Democrats, and 27 percent as Independents.

Firearms can be used to hunt and put food on the table; for sport; to defend life and property against criminal aggression; to rebel against corrupt, oppressive government; to maintain existing government and suppress insurrection; to defend against foreign aggression. A right to possess firearms can serve one or more of those purposes.

To various degrees, support for many of these purposes can be found in the histories of our Constitution and Bill of Rights, the deliberations of the constitutional convention and the first Congress, the materials promoting the ratifications of the Constitution and Bill of Rights, in the ratification processes, and in commentaries.

Whatever those sources say, the Second Amendment itself provides that “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.” Arguably, its plain language limits the right that it recognizes to firearms used to arm a regulated militia deployed to protect the country.

But courts have not interpreted it that way. Our Supreme Court has recently held that the Second Amendment creates a qualified individual right that, at its core, protects a person’s right to keep and bear firearms in order to protect themselves and their home. At the same time, the court recognized that government could limit the right, such as by prohibiting felons and mentally ill persons from possessing guns because they cannot be trusted to use them responsibly.

Whether the Second Amendment is understood as a collective right of citizenry to protect their country, or as an individual right of self-defense, it arguably covers high-powered semi-automatic rifles. In either case, greater range and firepower is better.

On the other hand, constitutional rights are not necessarily absolute. It seems pretty unlikely that anyone involved in writing or ratifying the Second Amendment had semi-automatic rifles in mind. To them, arms were muzzle-loaded muskets and flintlock pistols that took time to reload and were not very accurate or reliable. The integrated metal cartridge and the repeating rifle were not invented until the mid-1800s.

The Bushmaster rifle used at the Sandy Hook Elementary School is a descendant of the military M-series carbine that has been modified from full-automatic to semi-automatic firing mode for civilian use. It is light, compact, powerful, accurate and reliable. It is capable of firing 45 rounds a minute in semi-automatic mode. It is one of the most lethal weapons available to civilians because it can put many bullets on target in a hurry.

There is something tyrannical about a civilian having so much unfettered power. On the other hand, if you are in a fight for your life, it’s exactly what you want. Weapons like the Bushmaster appeal to our independent streak. If you are going to go it alone, it is understandable that you would want such an effective weapon for all the uses to which it can be put.

However, since the Second Amendment was ratified, the average citizen has less need to go it alone. Few of us hunt to put food on the table. Being able to saturate a deer with lead doesn’t seem very sporting. Most of us rely on law enforcement to maintain order. We try to settle our personal differences with reason, instead of force. We use athletics as an outlet for aggression. People find someone carrying a loaded rifle in the city truly threatening. Our armed forces are the most formidable in the world. We have freedom of speech and a largely unbroken, 223-year history of peaceful transitions of power.

If it comes to all-out revolutionary war, semi-automatic rifles are not going to make the difference against the United States military. We could all arm ourselves to the teeth to protect against the occasional aberrant homicidal maniac, but that would be overkill and would entail a lot of collateral damage.

It’s not easy to reconcile these values. I suggest we start by requiring background checks, gun safety education, and licenses to buy guns and ammunition.

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Halsey Frank is a Portland resident, attorney and former chairman of the Republican City Committee.