April 16, 2021

By Steve Jonas, MD MPH

"Either this nation will kill racism, or racism will kill this nation." (S. Jonas, August, 2018)

Introductory note to the reader: Regular readers of my columns will know that I write on this subject on a fairly regular basis (see the note at the end of the column for a couple of examples), just as I do on racism. That is because just as this country is inflicted with institutional racism and has been since its beginnings, it has also been inflicted with gun violence for much of its existence. In its modern form, gun violence is underwritten for profit by the gun industry and its various components, and is politically protected by the Republican Party. In modern times there has been an ongoing epidemic of gun violence which, for example, resulted in a total of close to 40,000 deaths per year in 2018. Just under 50% of those deaths were suicides; the rest homicides and accidents. But of course the reason that I am going with this column again, updated a bit, is of course because of the two recent mass murders (and I do wish that they would be called "mass murders," not "mass shootings") that occurred just one week apart, in Atlanta, GA, and Boulder, CO — and more since then, such as the FedEx shootings in Tennessee.

The political responses to these tragedies in Atlanta and Boulder have been sadly predictable. Ted Cruz' (you know who he is, I'm sure) most quoted comment at a Senate hearing is that "they" (meaning those awful Democrats) "just want to take your guns away." Nothing about the tragedies themselves, possible causes, possible remedies. Using the well-honed other Republican line of attack on even the mildest proposals to do something about the periodic slaughters, Sen. John Kennedy (LA) turned quickly to changing the subject, this time around to drunk driving (about which there happens to be quite a bit of law, civil and criminal, which of course has no relationship to mass murder. But we shall leave that discussion for another time).

The Democrats, in the Senate at least, have been reduced to calling for "closing the background check loopholes" to cover private and gun show sales as well as reinstating the ban on assault rifles. Actually, in the Boulder case the weapon was apparently an assault pistol, made into a military-style assault rifle, the Ruger 556. (Why anyone would need a weapon like that to hunt anything other than humans is a question for another time. As is the question of just how their manufacturers and sellers --- all to make a profit --- sleep at night.)

As every reader of BuzzFlash knows we as a nation have been here before, over and over again. And as long as the Repubs. have their trigger fingers on at least one branch of the Federal government, nothing happens. There are several points that can be made in regard of both why the Repubs. do this and what could actually be done about the problem, of mass shootings at least. But we will leave that for another day.

Here let's first let's deal with the matter of the 2nd Amendment to the Constitution, which, of course is always at the center of the Constitutional argument, in re "My/their 2nd Amendment Rights." The Amendment actually reads, to wit:

"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."

So, in comparison to what Republicans from Cruz to Boebert say it says --- "the right of gun ownership of any gun, by anyone of any capacity, mental or otherwise, in any context and for any use, human or animal hunting or otherwise, is to be totally unregulated and totally beyond the reach of the law, and is to require no evidence of instruction in use, maintenance, and gun safety, unless a gun owner just happens to wound or kill another person, (unless of course they can claim self-defense or, as in the Trayvon Martin case, the target was thought by the shooter to be "suspicious")" --- what does the 2nd really say?

For most of its history the Supreme Court has interpreted it to mean that it does NOT grant to every citizen an unlimited right to own one or more weapons of unspecified types. In fact, Former Chief Justice Burger, no weak-kneed radical he, had the following to say about the matter: "The idea that the Second Amendment guarantees the right of an individual to own a gun is a 'fraud.'"

It was Justice Scalia, in "Heller," writing for a 5-4 majority, who opened the door to the "unregulated private gun ownership" argument. Now it happens that "Heller" refers to guns in the home. But the gun industry front (more on that below), aided by the Repubs. who the NRA and the Gun Industry fund in massive amounts, just ran away with what Scalia said. Further, both Scalia and the Repubs. of course ignored the first two phrases of the 2nd, and pretend that its text begins with the words "the right."

Now, along with the late Justice Scalia, you might be surprised to know, I happen to be a big fan of strict constructionism when interpreting the Constitution and its amendments. Thus, just as Chief Justice Burger did, in reading the 2nd's plain language, when taken as a whole, it is quite obvious that it can mean only one of two things. First, it provides a right to the people, in the protection of the free state, to form well-regulated militias. Or second, it provides to individuals the right to bear arms, in a well-regulated system for the protection of the free state.

But the NRA and its Republican front-people (e.g. guns-on-the-mantle-Rep.-Boebert of CO) have of course not read it in either of those two ways and have spent a good deal of time and money making sure that many folks in both public and the media don't read it that way either. Thus so far, with the Repubs. having had substantial control of the Federal government, in one way or another, for many years now nothing has happened in the way of promoting gun safety and gun-ownership/control. But in constructing some kind of long-range political-legal program to deal with this deadly matter (there have been 5-10 mass murders per year for the last 15 years or so) here are several thoughts on what else might be added to the standard arguments for gun-control legislation that could actually work to reduce gun deaths.

Even with Scalia's opinion in "Heller," which applied to the regulation of gun ownership in the home, the door was opened wide to interpreting the 2nd Amendment as sanctioning unlimited gun-ownership rights only by a mass advertising campaign run by the NRA and supported by countless Repub. politicians. Regardless, neither the 2nd nor "Heller" says that. This should be emphasized.

Second, it has to be recognized by the gun control-regulation forces that the primary opponent to change is not the NRA. The NRA is only a front organization (which happens to be becoming weaker and weaker through its own mis-management). What has to be recognized is that the real opponents of gun safety/control legislation are the six major personal weapons industries: the rifle/long-gun/automatic weapons industry; the hand-gun industry (sometimes the same as the one just above; sometimes not); the gun ammunition industry; the gun 'dealers' industry (wholesale and retail); the gun show industry; and the on-line gun-sales industry (which can be connected to all of the above, or not). (Private sales, which are uncounted, do not fall into this set.)

It is to these segments of U.S. commerce, and in some cases the hedge-funds etc. that own them, all major funders of the Republican Party and Republican politicians, to which major political, economic, and social pressure should be turned. Further, the point should be made that the primary reason that they want no gun-ownership restrictions of any kind is simply so that they can sell more guns, more ammunition, in more places, for more profit.

Third, few seem to notice, and thus this point is simply not made, ever, that even under the broadest, pro-gun interpretation of the Second Amendment, gun ownership is already limited. Private parties cannot own, let's say, mounted machine guns, rocket propelled grenade launchers, artillery guns, mortars, anti-tank weapons, bazookas, or anti-aircraft artillery. Or ground-to-air missiles. "Ooops! I was aiming at the black helicopter I'm sure I saw and happened to bring down an airliner with 300 passengers aboard. Sorry. I was simply operating within my Second Amendment rights." And then, what about the guns on tanks? Modern tanks have several guns, usually one fairly large cannon and one heavy machine gun, and they may as well have one anti-aircraft weapon. If the 2nd permits unlimited gun-ownership, why can't one have the guns that come with tanks?

Of course, then one would have to deal with the vehicular part of the tank. Would one need to register it and have a license in order to drive it? Does the 2nd prohibit any regulation of tank driving as well as tank-gun shooting? While according to the presumed gun-industry/Repub. position on guns in common ownership and commonly used, and the exemption from liability litigation of the whole of the gun industry, there could be no liability for firing the cannon and causing property damage if no one were maimed or killed. But what about liability from running over someone while driving the tank? And would the owner have to pay for road damage? Tanks do tend to dig up pavements, donchaknow. Yes indeed. Tanks for the memories. So many questions, so few answers.

But the point here is, obviously, private ownership of many kinds of guns is already prohibited. This should be one of the principal arguments made in favor of once again prohibiting the private ownership of assault rifles and their relatives. And oh by the way, the former assault weapons ban did work to reduce deaths from such weapons.

Fourth and finally, in my view much more emphasis should be put on the licensing/registration/insurance set of proposals. Since private gun ownership (see just above) is already strictly limited as to types, there is no 2nd Amendment argument (in terms of Constitutional law) that could be raised to this one (even though the gun industry and its Repub. allies would be screaming it from the roof-tops). Anyone could own a gun (except those who would be prohibited from doing so under a system of comprehensive background checks), other than the prohibited types like the ones listed above, just like anyone can own a car (except those who are prohibited from doing so for a variety of reasons, like so-and-so many drunk driving convictions).

And further, there are bunches of types of cars which individuals may own, but are prohibited for street use. All persons would simply have to pass an exam on the usage of the kind of gun(s) they would like to own, (presumably after taking a gun-operation/safety course, just as in obtaining a driver's license), meet minimum age-restrictions, meet certain criminal-record minimums, and be required to have liability/damage insurance.

In summary, first, if the private ownership of certain kinds of guns can be prohibited, "under the 2nd Amendment," then the private ownership of any kinds of guns can be prohibited "under the 2nd Amendment" (for, and the gun-industry/Republican alliance might not know this, neither tanks nor assault rifles existed at the time the 2nd Amendment was written; actually, no kinds of rifles existed back then either). It becomes then a matter of which kinds of guns, in addition to tank cannon and bazookas, can be prohibited for private ownership. Second, since the term "well-regulated" is in the Amendment, then gun ownership can be regulated, say by licensing, registration, and an insurance requirement. Third, the major source of funding for the NRA is the gun industry and its several components, which in turn are major funders of the Repubs. It is against the industry and their owners/funders/profit-makers that the propaganda war should be principally be fought. Just remember: "Guns don't kill people; people with guns kill people." Since most people cannot make guns or ammunition, it is their makers, and sellers, who are the ultimate murderers.

Note: This column, previously published at URL: https://www.opednews.com/articles/The-Mass-Murder-Problem--by-Steven-Jonas-Cruz_Guns_Heller_Mass-Murder-210325-660.html is itself based in part on one I published some time ago on the original BuzzFlash: Dr. J.'s BF Commentary No. 145: "NRA: Tanks for the Memories," published on BuzzFlash on Tue, 06/15/2010: Click Here, and with significant text from the most recent version: "The Gun Problem: From What the 2nd Amend. Really Says through Who the Enemy of Gun Safety Really Is to Some Thoughts on What Can be Done," Click Here, published on OpEdNews, 9/7/2019

Steven Jonas, MD, MPH, MS is a Professor Emeritus of Preventive Medicine at StonyBrookMedicine (NY) and author/co-author/editor/co-editor of over 35 books.  In addition to being a contributor to BuzzFlash.com, he is a “Trusted Author” for OpEdNews.com , a contributor to Reader Supported News/Writing for Godot; and From The G-Man.  His own political website, stevenjonaspolitics.com, will eventually be an archive of the close to 1000 political columns he has published since 2004.  He is also a triathlete (36 seasons, 256 multi-sport races; not racing in the Year of the COVID-19 pandemic).

Dr. Jonas’ latest book is Ending the ‘Drug War’; Solving the Drug Problem: The Public Health Approach, Brewster, NY: Punto Press Publishing, (Brewster, NY, 2016, available on Kindle from Amazon, and also in hardcover from Amazon).  In 1996 he published a ‘future history’ of the United States entitled The 15% Solution: How the Republican Religious Right Took Control of the U.S., 1981-2022: A Futuristic Novel (Third Version published by Trepper & Katz Impact Books, Punto Press Publishing, 2013, Brewster, NY), and available on Amazon. 

He has a blind-copy distribution list for his columns.  If you would like to be added to it, please send him an email at sjtpj@aol.com.

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