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If you wait long enough a problem will go away. This is not lost on public relations people, lobbyists, politicians and the NRA. When I started writing this I had not heard or read the NRA’s press release. I assumed it would be a tempered response given the circumstances and would be aimed at paying closer attention to mental health. There is a need for such an approach, but it is only part of the answer. The actual press release was more a lashing out, then a tempered response. It was as if it were a cornered animal in a gun sight. Essentially, it was arm the schools to protect our children, with a swipe at media violence. I would support the latter as it is pervasive in movies, TV, video games. I am sure a lot of the NRA’s members actually like this media content, so it is a peculiar line of attack. Whether this media content has a direct bearing on mass killing is difficult to establish, but less of it could not hurt. The arming of schools if however just a deflection. Police were in the Sandy Hook school when the gun man was there. They were just at the wrong end of the school at the time he entered the classroom. Even if they were in the classroom, how would the children been saved by being in the middle of a gun fight?

Prior to the NRA press release today, those who expressed their need for semi-automatics and large load clips, indicated that for them these weapons were a form of recreation. Some argued that such weapons deterred crime, although the NRA in their press release seemed to indicate that crime was on the rise even though these weapons are now unrestricted. One raised an interesting point that at the Aurora movie theatre shooting, the shooter knew that that theatre was the only one in town that checked for weapons. The point being, that if he had gone to another theatre he would have died in a hail of bullets (not to mention all the errant shots injuring or killing the other moviegoers). I recently made a similar joke to my wife, that if Newtown occurred in the NYC schools, the kids would have pulled out their weapons and shot him (there are actually metal detectors in the school- so it was a joke).

I have no problem with responsible hunters and target shooters. If you are highly trained, you have the weapon well secured so only you can use it, you have emotionally stable relationships with others, do not have mental health issues, and you live in a very dangerous area where law enforcement cannot provide adequate protection, I could also accept that you may want to have a weapon in your home. I doubt that you would need a semi-automatic rifle for this however.

I have been trying to think of a middle ground short of an outright ban of public ownership, use, or possession of semi-automatic weapons with large load clips (particularly, rifles, as the more prevalent and dangerous hand-guns are too widely held to think about regulating). One thought was that an individual could own such weapons if properly registered (i.e., complete background checks without 3 day deemer of approval if no response from the FBI within the period). The individual would not be permitted possession of the weapon outside of a duly licensed gun range or licensed gun club. Massachusetts licenses gun ranges, but most states do not. This would need to change for both gun ranges and gun clubs. Each would have to have enhanced safety procedures, not only regarding usage on and off-premises through sanctioned hunts or events that are equally well supervised, but to guard against loss, removal, or unauthorized transfers of the weapons. Trained instructors would be available to teach proper usage of such weapons. Many ranges and gun clubs already have such procedures, so this would not be too arduous to comply with. The ranges and clubs would have strict liability for weapons unaccounted for (including substituted weapons) for any reason, and for any use of one of their weapons off premises or outside of the range/club sanctioned event that met best practice rules. Individuals who purchased these weapons or clips would have to have possession directy transferred from the seller to the registered range/club. The seller would be required to obtain confirmation of receipt from the range/club within the time necessary for delivery, identifying make, model and numbers relative to these purchases. The seller of the weapon would also have strict liability for sale to an improperly permitted buyer and for error in transfer, except for error of the recognized common carrier. No renting or leasing of weapons would be permitted, save for renting on premises from a licensed gun range or club for use only at the range or club or a sanctioned event following best practices. Individuals who own such weapons would be required to have give them to the licensed range or club, who would be bailee of the weapons/clips owned by these individuals. Any individual who after a transition period is caught off their premises (and not at the licensed range/club or during their sanctioned events) would be subject to criminal felony level liability with subpoena power over all property owned, operated or controlled by them or where the police have reasonable notice of location of other weapons of the individual or entity they have an interest in. Any individual who transforms another weapon into a semi-automatic rifle will be subject to the same laws governing semi-automatics. Aside from strict liability, violation of the law by the range, club, seller or agent thereof would be a criminal act, including a felony.

My thought was that the Second Amendment granted the right to have and bear arms, but that this is not an unrestricted right. This is not an area of the law I usually follow, but recent tragic events have arosed my interest. I recognize, that legal issues aside, that this may be difficult to accomplish, so perhaps enlightened gun owners of these weapons, would voluntarily enter into bailments with gun ranges and clubs to try to start a movement. These are not people who such a law would be aimed at, but politics being what it is, a grassroots movement might prove helpful.

While considering my compromise solution I went onto the website for the National Shooting Sports Foundation. This Foundation represents 7,000 manufacturers, distributors, firearm retailers, shooting ranges, sportsmen’s organizations and publishers. Their mission is to promote, protect and preserve hunting and shooting sports.

They released this statement about the shooting in Newtown, CT.

NSSF Statement on Newtown Tragedy

“We at the National Shooting Sports Foundation have been deeply shaken and saddened by the horrible events that took place in Newtown last week. There are not many degrees of separation in small communities like Newtown, and so, not surprisingly, we had family, friends and acquaintances that were affected. We are weighed down by their heartbreaking stories and the sorrow that has blanketed our community. Our hearts go out to the families of the victims of this terrible tragedy.

Out of respect for the families, the community and the ongoing police investigation, it would be inappropriate for our organization to comment or participate in media requests at this time.”

As it turns out, they are based in Newtown, CT. This was not the only ironic situation. Cerberus Capital Management, a large private equity firm whose CEO is a strong supporter of the NRA and who owned the manufacturer of the weapon used in the Newtown massacre decided to sell the manufacturer, rather than hold it for an IPO. Economic reasons no doubt were a factor, but the coincidence was that the father of the head of Cerebrus, lives in Newtown, CT.

The NSSF website posts the December 7, 2012 decision of the US 7th Circuit Court of Appeals in Michael Moore et al v. Lisa Madigan, Attorney General of Illinois. The decision overturns on constitutional grounds an Illinois law banning a person from carrying a gun ready to use (loaded/unloaded, easy to reach and uncased), except for police, security personnel,hunters, members of target shooting clubs, property owners on their property (homeowners, tenant, business owner) and any person who in on another’s property with permission to have a loaded uncased gun. The US Supreme Court in District of Columbia v. Heller (2008) held that the Second Amendment protects the ” right of law abiding, responsible citizens to use arms in defense of hearth and home”, but did not address that right outside of the home. The 7th Circuit rendered their decision before Newtown, but after other killings in other states this year. The court framed the issue as the right of self-defense outside of the home, as Heller addressed the Second Amendment in terms of the right of self-defense. Heller recognized that the right to bear arms did not extend to non-permitting carrying in schools and the 7th Circuit in the Moore decision agreed. The court noted that unlike Illinois and the Distict of Columbia, which had a flat ban on carrying a uncased weapon outside of excepted areas, New York permitted carrying of a concealed weapon if permitted by the State provided the gun owner could make a proper showing of proper cause for such carriage. This proper cause standard seems acceptable to the 7th Circuit as does the right of private places to ban the carriage of weapons on their property. The court did not find a public safety need for Illinois’ flat ban weighed against the Heller constitutional right to carry weapons for potential self-defense.

From my vantage point, Heller is an odd decision for a Court claiming not to be activist. It interprets the clause granting the people’s right to bear arms, independent of the need for militias and then qualifies such bearing of arms, for the purpose of self-defense. Nowhere does the Second Amendment mention or allude to self-defense, nor provide any rationale for bearing arms except in the context of militias. The Illinois law excluded hunters, but since hunters are bearing arms for hunting and not for self-defense are their rights abridged by the Second Amendment under such a reading of Heller? Are all arms allowed under Second Amendment, or could weapons not conceived of by the drafters, such as semi-automatics, be subject to different rights than single shot weapons that were the weapon of the 18th Century. Heller was more interpretative history by the Court than literal reading of the Constitution. The 7th Circuit suggests that society could take corrective action by private places banning the carrying of guns, making the right to do so outside the home ineffectual.

While the 7th Circuit’s decision would not be followed in all the other Circuits, it would be difficult to accomplish the compromise I thought mentioned above. Over time there will be great tension between our mostly conservative courts and increasingly less conservative US population. In the interim, the Court is making it harder to find middle ground. While I am politically inclined to be independent, the NRA might want to consider the message that was sent to the Republican Party at the Presidential level. Gerrymandered districts may mask the temperment of the changing US population, but the outpouring from Newtown in terms of semi-automatics was hard not to hear, unless you were tone deaf.