Denver Bar Association
March 2013
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A Rational, Constitution-focused Discussion about Guns — Is It Too Much to Hope For?

by Doug McQuiston

 

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or many years, the national debate about the Second Amendment, and the extent to which government can or should regulate ownership of certain types of firearms, had been considered mostly over. The tide of recent Supreme Court decisions, such as District of Columbia v. Heller and McDonald v. Chicago, had shifted toward recognition of a personal right to keep and bear arms, not one requiring membership in a "militia." The topic of gun regulation was virtually absent from the last two presidential campaigns. Violent crime, including crimes involving firearms, has declined noticeably in the last decade. The nation, apparently, had moved on.

That all changed with two horrific incidents in 2012. The first was close to home in Aurora when 12 were killed and 58 were wounded after a gunman entered a movie theater showing "The Dark Knight Rises" on July 20. Then, on Dec. 14, a gunman opened fire in an elementary school in Newtown, Conn., killing 20 children and six staff members.

Guns, and the Second Amendment, are a hot topic again in Congress, statehouses, and all over our 24/7 media. Sadly, though, emotion has overtaken analysis on both sides. The conversation, like so many in our national dialogue, has deteriorated into a useless shouting match.

On one side, we hear a demand to ban some or all types of firearms, as though we could utter a magic incantation to turn the estimated 280 million of them in the United States into squirt guns. On the other side, firearms advocates embarrass themselves on national TV talk shows by shouting that "Obama is coming for your guns," and threatening "1776 anew." How exactly is this helping the conversation along?

When we need to be more real than ever, our national debate has lurched toward hysteria. It is foolish to believe we can make firearms magically disappear by banning them. But, it is equally foolish to shout that any modest attempt to regulate the exercise of the right to bear arms inevitably constitutes an irreversible ride down the Fascist "slippery slope" toward jack-booted thugs bursting into our homes to take our firearms.

The hysteria, on both sides, is preventing serious conversation. Still, we need to have such a conversation, calmly and unemotionally. We need to ground our discussion in legitimate, unbiased research. Most important, our focus needs to fall on doing things that will actually help reduce the illegal use of firearms, and doing so constitutionally.

Let’s start now, shall we?

Here in Colorado our version of the right to keep and bear arms, outlined in Article II, Section 13 of the Colorado Constitution, goes further than the Second Amendment. It grants an explicit constitutional right to use firearms for defense of "home, person, and property." It proscribes any law that calls these rights "into question"; though (as with all rights), it leaves open the power of the state to reasonably regulate the exercise of the right.

When Colorado’s Constitution was written, the open-carry of a sidearm was commonplace. Even today, there is no state law barring the open-carrying of a firearm (although there is one in Denver).

Coloradans have shown a higher than average comfort with firearms since before statehood, which has generally been carried forward to today.

However, that comfort with guns may be changing as our demographics change. As this goes to press, four bills are pending before the state Senate calling for a magazine capacity limit (15 rounds of pistol or rifle ammunition or five shotgun rounds), banning concealed carry on all college campuses and stadiums, imposing a fee on gun buyers to cover the cost of background checks, and requiring background checks on all purchases, including private transactions. Some or all of these may have passed by the time you’re reading this. If so, then Colorado will have gone from a fairly "liberty-oriented" state when it comes to gun control, to one of the most restrictive. This would be a seismic shift in the political center in the state, and one that six months ago no one would have seen coming.

The significance of this shift cannot be overstated. After all, in 2003, Colorado joined a majority of states (38 states so far, with four more allowing essentially unrestricted carry without a permit) becoming a "shall issue" concealed carry permit state. It clarified, via Colorado Revised Statute § 18-12-201 et seq., that the carrying of concealed weapons was of statewide concern. Since that time, more than 139,000 such permits have been issued.

In 2012, the Colorado Supreme Court ruled that permit holders could carry on campus at state universities in Regents of the University of Colorado v. Students for Concealed Carry on Campus. Not surprisingly, neither Colorado nor its state university campuses have turned into the O.K. Corral.

The debate on the four bills brought to the statehouse this year has mirrored the national debate, largely overshadowed, in my view, by hysteria on both sides of the aisle. Though the sponsors of the bills are trying to reduce illegal use of firearms, I question the effectiveness of the measures and feel they have been brought to the legislature with undue haste. For example, a consequence of the magazine ban bill, if passed, will be a loss of business. Magpul, one of the country’s leading manufacturers of plastic rifle magazines, says it will leave the state if one of its leading products is banned.

Gun activists, too, would be well advised that excessive "slippery slope" arguments are not the way to get their point across. Sometimes, the most persuasive tone is a persistent whisper, not a high-decibel shout.

If we can stop shouting at each other long enough, there are changes to state or federal law that might constitutionally work to reduce illegal use of firearms. Maybe we could expand instant background checks to all sales, (including the 40 percent of sales that take place between private, non-Federal Firearm Licensed persons). To reduce the risk of accidents arising out of their careless or improper use, we might even implement a modest training component before purchase. Vigorous training is required for a CCW permit, and it has proven itself effective in greatly reducing the risk of negligent firearms accidents by CCW holders. We could require better exchange of information at the state and federal level, to refine the sensitivity of the universal background check process without trampling on the right of law-abiding people to own and use firearms. We also could focus on improving information sharing among mental health professionals, to give the Colorado Bureau of Investigation better access to information that might help keep firearms from the mentally ill, and make the background check truly more "universal."

But bans, though favored by gun-control activists, fail for many reasons. First, they are mostly unconstitutional. Practically speaking, they have been demonstrated to be largely ineffective. Following the assault weapons ban from 1994 to 2004, a University of Pennsylvania study couldn’t conclude that the ban directly led to any measurable drop in overall gun violence, and highlighted the ban’s limitations, noting the rare use of AR-15-style rifles in crimes. It also noted that many firearms were exempted from the ban. It also found the limitation on magazine size failed to make a measurable difference in gun crime or severity.

Cities that have historically had tight restrictions on handgun ownership across the country remain a mixed bag. Consider Chicago and Washington, D.C., where the Supreme Court has struck down such sweeping gun ownership restrictions. In 2012, the Windy City’s reports of gun violence and homicides soared, but Washington, D.C. has seen a decline in homicides (though its per capita murder rate remains one of the highest in the country).

If you are a gun owner, and familiar with the safe use of firearms, you can spread the word that gun ownership is a constitutional right, that the overwhelming majority of firearms owners are safe and responsible with them, and that the Second Amendment is not about duck hunting. If you know nothing about firearms, or even hate the very idea of them, you can take some time to talk with a friend who owns and uses firearms. Do some research into the statistics and studies dealing with the use and ownership of firearms. Analyze what would work, and what wouldn’t, then advocate your position forcefully and civilly based on that informed knowledge.

Whatever side you fall on, by discussing the issue rationally and calmly, as we are trained to do, we can go a long way toward advancing the debate. Though I remain skeptical, I’m hopeful we might even restore a little civility to our public debates in general. D

 

Doug McQuiston has been a lawyer in Colorado for more than 30 years. He is a member, contributing writer, and past chair of The Docket Committee. He may be reached at dougmcquiston@yahoo.com.


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