EDITOR’S NOTE: This is one of a series of articles on gun rights. Each addresses a common anti-gun trope.


“If not for the NRA, we’d have sensible gun regulation!”

Some anti-gun arguments are just empty platitudes, ignorant of law and history and bereft of specificity.

First the latter. What constitutes “sensible” gun regulation? The word “sensible” is like the word “fair:” it is in the eye of the beholder and deeply affected by the utterer’s biases and predilections. A native of Upper-West-Side Manhattan might think that “sensible” means “no one but law enforcement, the military and trained security guards should have guns.” A Texas rancher might think that “sensible” goes only so far as requiring that children under 12 should only handle guns with adult supervision. “Sensible” is an emotional appeal, one that’s intended to suggest that the laws and regulations already in place are either insufficient or that they don’t exist at all. The last point is obviously false, but just to put some meat on those bones, lets review some of the existing gun laws.

All retail sellers of firearms must possess a Federal Firearms License (FFL). To buy a firearm retail, an individual must present identification, complete paperwork and be cleared through the National Instant Criminal Background Check System. In many jurisdictions, purchase of a handgun requires additional permitting and oftentimes a waiting period or delay of another sort. Fully automatic firearms may not be possessed by civilians in many jurisdictions, and in all others they require special permission from the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). Even then, the law restricts civilian ownership of fully-automatic or selective-fire firearms to those manufactured before 1986, which severely restricts the supply of such weapons. Convicted felons are debarred purchase or possession of firearms, and it is illegal for private citizens to sell their firearms to felons. It is illegal to use firearms in the commission of a crime, and it is illegal in many jurisdictions to even brandish a firearm in a menacing fashion. It is illegal to carry firearms into a US Post Office, even if one has the legal right to carry it up to the front door. Most of the country requires some form of permit to carry a concealed weapon. And on and on.

Now, some legal history:

Federal Law:
1791 – The Bill of Rights was ratified.
1934 – National Firearms Act – Banned automatic weapons, sawed off shotguns and “gadget” guns like cane guns. Imposed a tax on gun manufacturers.
1938 – Federal Firearms Act – Established FFLs and record keeping of all sales.
1968 – Gun Control Act – Expanded dealer license and record keeping rules, restricted interstate sale of handguns, banned sales to felons, drug users, those convicted of domestic violence, and the mentally incompetent, outlawed mail order sale of rifles and shotguns. Raised legal purchase age to 21.
1972 – BATF was created.
1986 – Law Enforcement Officers Protection Act – Banned armor piercing ammunition.
1986 – Firearm Owners Protection Act – “Safe Passage” provision. Banned registry of firearms, excepting machine guns. Strengthened penalties for certain crimes and convicted criminals. Banned civilian ownership of new machine guns.
1990 – Crime Control Act – Outlawed the assembly of illegal semiautomatic rifles or shotguns from legally imported parts.
1990 – Gun-Free School Zones Act – Passed as part of the Crime Control Act, later ruled unconstitutional under the Commerce Clause. Modified in 1997 to comply with Commerce Clause challenge.
1993 – Brady Handgun Violence Prevention Act – Imposed interim 5 day waiting period (now lapsed), established National Instant Criminal Background Check system to replace waiting period.
1994 – Violent Crime and Law Enforcement Act – Banned manufacture, importation and possession of new semi-automatic rifles that had certain features (AKA the Assault Weapons Ban). Prohibited juveniles from selling or possessing handguns Subsetted in 2004.
2003 – Tiahrt Amendment – Prohibits law enforcement from releasing records of where criminals purchased their guns.
2004 – Law Enforcement Officers Safety Act – Authorized active and retired LEOs to carry concealed in most jurisdictions in the US.
2005 – Protection of Lawful Commerce in Arms Act – Grants gun manufacturers immunity from civil suits over crimes committed with guns.

Major State-Level Gun Control Legislation:
1911 – New York – Sullivan Act – NY State mandated licenses for handgun ownership and carry, established “may issue” policy.
2013 – Connecticut – An Act Concerning Gun Violence Prevention and Children’s Safety – Limited magazine capacity for new sales, established assault weapon restrictions, et al.
2013 – New York – New York Secure Ammunition and Firearms Enforcement Act – Limited magazine capacity, assault weapon restrictions and registry, background checks for ammunition (on hold), requires background checks for private sales, et al.

Supreme Court Decisions:
1846 – Nunn v Georgia – A state-level ban on the sale and carry of handguns and certain types of knives was ruled unconstitutional.
1857 – Dred Scott v Sanford – Implied that 2A was an individual right while denying that right to blacks.
1875 – US v Cruikshank – Established that 1A and 2A rights violations were to be handled at the state level.
1886 – Presser v Illinois – 2A is individual right, 2A only applies at the federal level, states can ban people from forming militias.
1939 – US v Miller – Upheld ban on sawed off shotguns because they’re not “militia” weapons. Verified that “militia” referred to all able-bodied adult males.
1968 – Duncan v Louisiana – Incorporated 6A, mentioned that all other privileges and immunities in the Bill of Rights should be considered incorporated.
1980 – Lewis v US – Upheld Congress’s right to debar felons from possessing firearms.
1990 – US v Verdugo-Urquidez – Discussed who “The People” are i.e. who in this country is protected by the Bill of Rights.
1995 – US v Lopez – Gun Free School Zones were declared unconstitutional under the Commerce Clause.
1996 – US v Rybar – Affirmed that the government has the right to regulate possession of home-made machine guns under the Commerce Clause.
2003 – US v Stewart – Also affirmed at the government has the right to regulate possession of home-made machine guns under the Commerce Clause.
2008 – DC v Heller – Affirmed that 2A is an individual right unconnected to service in a militia.
2010 – McDonald v Chicago – Incorporates 2A as an individual right at the state level. Protects the right to own a handgun in a home for home defense.

The NRA was founded in 1871. Despite the NRA’s existence, major gun control legislation was passed by Congress in 1934, 1938, 1968, 1972, 1986, 1990, 1993, and 1994, and several Supreme Court decisions upheld certain infringements of gun rights. It took 142 years from the ratification of the Fourteenth Amendment (which was intended to “incorporate” the Bill of Rights down to the state level) for the Supreme Court to verify that, yes indeed, the Second Amendment is an individual right that applies to the citizens of the 50 States. Given the long history of government infringement of gun rights, the power of the NRA is obviously greatly exaggerated.

In summary, there are already tons of gun laws and regulations, and they vary across states and localities. Gun rights have been dramatically restricted, many times, by the government. It’s noteworthy that the earliest of those restrictions targeted blacks, specifically freed slaves.

Are these “sensible?” Is it “sensible” that someone in Vermont, or Alaska, or West Virginia, or Missouri, or Mississippi, or Maine, or Kansas, or Arizona can purchase a pistol, clear NICS instantly, and concealed-carry, while residents of California, Delaware, Connecticut, District of Columbia, Hawaii, Maryland, Massachusetts, New Jersey, and New York can get concealed carry permits only at the whims of government officials (who often demand justification for them)?

Is there any other Constitutionally protected right whose exercise varies so widely between states and localities?

“Sensible,” when uttered by someone who wants more gun restrictions emplaced, is a bottomless pit. “Sensible” is a moving goalpost, to be altered after every high-visibility crime or leveregeable public outcry. “Sensible” is what people who want an outright ban, but know better than to say so, trot out to try and sway the opinions of the less-engaged and not-fully-informed. “Sensible” is dishonest, in that it’s meant to displace informed discussion. “Sensible” is you asserting that your opinions, wants and desires are more valid than mine.

So,

Gun rights lesson #551: Yes, we already have tons of gun regulations on the books. No, the NRA isn’t an all-powerful barrier to gun regulation. Your definition of “sensible” carries no greater weight than mine.

Peter Venetoklis

About Peter Venetoklis

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.

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