Massacre at Sandy Hook Elementary, and the Right to Bear Arms

Right to protect our children from people wielding guns.  None of us want our children exposed to the danger of another Newtown Connecticut – another Sandy Hook Elementary. It is our right and duty to make sure that our children and our schools are absolutely safe – in fact that all of us are safe.  We must protect our children and all of us from potential mass murderers.

Right to bear arms. On the other hand, the right to bear arms under the 2^nd Amendment of the U.S. Constitution is not merely for hunting, but it is to allow the people to protect themselves and for them to protect the U.S. Constitution, by force if necessary.  The right to bear arms came to our shores from an old concession forced upon the King of England in the 1600’s.   There are sobering thoughts to consider before we go down the path of disarming the people. The people have always been suspicious of a standing army under the total control of a ruler or powerful leader.

Reconciling these two rights:

The right to bear arms, detailed.  The Constitution is the supreme law of the land, and in that regard, is sacred.  We generally are not aware, however, that the 2^nd Amendment right, like all constitutional rights to a greater or lesser extent, could be lost, and is vulnerable.  For instance, it could happen if a catastrophic terrorist attack hits our coasts again sometime in the future – no matter who is president at the time. As commander-in-chief the president potentially has the power to invoke martial law.

What does that mean? It means that under extreme circumstances a form of military rule may be legally declared by the president, supposedly with the approval of congress.  This could happen overnight.  It could happen under the authority of Article 1, Section 9, and Clause 2 of the constitution.  That clause allows congress to suspend the writ of habeas corpus.  The writ of habeas corpus generally provides that no one can be arrested and held more than a few days without a court showing of reasonable cause to hold the person.  The authorities must show that it is probable that the person committed a crime, or is otherwise subject to the court’s control.

A suspension of that writ of habeas corpus means that the president –the executive branch of the government – temporarily becomes a military dictator, supposedly for the good of the country. In that way the president imposes military rule over civil rule.  Lincoln did it with the authority of congress for five years during the Civil War in the 1860’s.  But in the case of Milligan v U.S., Lincoln’s usurpation of power eventually was declared unconstitutional by the Supreme Court. The court said that:

“Martial law … destroys every guarantee of the Constitution.”

The Court reminded us that such actions were taken by the King of Great Britain, which caused, in part, the Revolution.

“Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.”

The court said further that martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. Further, the court confined the martial takeover to the locality of actual war. But our leaders did not always follow those restrictions on martial law.

During the 2^nd world war, American-born and naturalized citizens of Japanese descent on the west coast of the U.S.  -  Over a 100,000 of them – were interned under a form of declaration of martial law –i.e., suspension of habeas corpus. Many years later, the U.S. congress apologized and paid reparations of over 1.2 billion dollars.

The people of other countries were not as careful as are many Americans about our freedoms.  As Chris Powell commented in part in December of 1911:

In the 1930’s the “…German people were demoralized and deprived of economic security by hyperinflation and depression. Then they were frightened into submission by the burning of the parliament building in Berlin, which was opportunistically depicted by the National Socialist-dominated coalition government as Communist Party terrorism and used as the pretext for a proclamation, issued the next day, suspending all civil liberties, including, specifically, habeas corpus. Three weeks later the Nazis persuaded parliament to surrender its power through the infamous Enabling Act, allowing the Nazi chancellor to rule by decree. He did so for 12 more years…”

The world then had to rid itself of Adolf Hitler.

But what would happen in the U.S. under the following scenario:  Let’s say an event causes martial law to be declared – that is, the president – whoever he/she is at the time – suspends the writ of habeas corpus.  Let’s say he then abuses his takeover and never ends it?  It might take months or even years for a case to be heard before the U.S. Supreme Court.  What would happen if the martial law power-grab is never rescinded? You remember the phrase:  Absolute Power Corrupts Absolutely?

The people of the U.S. would have the right to protest that abuse of martial law – like what happened in Iran three or so years ago.  But the protesting Iranians had no guns, no arms.  The protest was brutally put down. People were killed. People disappeared. In the U.S., the people at least would have a last bulwark, a last chance to exercise their protests… They have the right to bear arms.  They have assault weapons locked in their closets and basements.

They also have the right to peacefully assemble – also a right guaranteed by the U.S. Constitution. Presumably, they may peacefully defend themselves from a persistent state of martial law that turns bad and becomes an illegal power-grab. In that situation isn’t it consistent with logic that the people would have the right to bear arms in order to exercise their self-defense?

Thus, until there is a more definitive ruling on this hypothetical issue, it would seem that the people could at least fire their arms in self-defense. For example, it would seem they could fire in response to an illegal suspension of habeas corpus –in response to an illegal and false arrest.  But there is probably no way to tell in advance whether any particular hypothetical suspension of habeas corpus has festered to the point of becoming illegal.  And, it could be argued that it is not illegal until a court of law rules it illegal.  This is Catch – 22.  What comes first, the fact of illegality or a court order that the act is illegal? At least it would seem that the prospect of use of arms in self-defense would make a ruler or potential abuser of the power of martial law think twice before he truly abuses that power.

In the 2008 case of District of Columbia v Heller, the court struck down a gun control law as unconstitutional.  The court said in part that the 2^nd amendment to the Bill of Rights was originally enacted in large part because the Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia.  The court said that the founders were fearful this would enable a politicized standing army or a select militia to rule. Their response to the federalists was to deny Congress the power to abridge the ancient right of individuals to keep and bear arms.  In this way the ideal of a citizens’ militia would be preserved.

The implication of that court ruling is that if martial law is imposed, then abused, and, for example, is never rescinded, the people’s militias could conceivably become pitted against the federal army to help protect the rights guaranteed under the U.S. Constitution.  This plausibly could result if a tyrant should abuse his power, suspend habeas corpus, and become a dictator.  It happened in Germany.  It happened in Iran. It happened in North Korea.  It happened in Libya, It happened in Syria.  It happened in parts of Africa. It happened in Cuba and several more times in Latin America. It is probably happening in Egypt.  It happens just about everywhere a dictator commandeers control of a democracy. The ruler does it by declaring martial law.  It conceivably could happen some day in the U.S.  In the Heller case the court further ruled that the term “…well-regulated militia…” meant no more than that the gun owner should be trained to handle guns. And the court had precedent to back up that ruling.

As a side note, other countries and forces exist that would be capable of smuggling arms to the protestors of, say Iran or Libya or Syria or Egypt.  It is assumed that the CIA in the past at times served in that role. But if the citizens of the entire world, including those of the U.S., are disarmed, no source would be left to supply the arms for a meaningful peaceful protest.  If martial law is ever imposed, then abused and never rescinded at a time that the U.S. citizens had been disarmed, and the world is disarmed, what country or source would be capable of coming to the aid of the protesting citizens of the U.S.? What group would supply arms?  Only if arms are already in the hands of the people could the people back-up their protests against the continuing illegal abuse of a state of martial law.

In that regard, at the United Nations they are talking about disarming all the peoples of the world – the people of each country.  But they would leave the standing armies of each country in place. We guess that idea would be fine if the United Nations could insure that no despot or dictator could ever again usurp the right of the people to govern themselves. Many at the U.N. think they can do that under a World Government.  Surely they are kidding themselves.  If the peoples of the entire globe are disarmed – including those of the U.S., how could they ever exercise self-defense from a persistent state of martial law that turned bad?

It is illuminating to note who in history was pro-gun and who disarmed the people. All the dictators and collectivists disarmed the people – Hitler, Stalin, Mao, Castro, Hugo Chaves, Pol Pot, Mussolini, and Karl Marx advocated disarming the people.    All of the advocates of freedom were pro-gun – Dalai Lama, Indira Gandhi, All the U.S, founders, George Orwell, to name a few.

On the other hand it is hard to argue against the apparent success of banning weapons in the hands of citizens, as happened recently in Australia. However, although the reports are mixed, it is curious that gun crime seems not to have gone down.  Suicides have declined, but murders have declined not so much.

The evidence is mixed when we compare the U.S. to the U.K.  Although murders with guns are much higher in the U.S. per capita, violent crime, assaults and home invasions per capita in the U. K. seems much higher than in the U.S.  Could it be that the perpetrators of that sort of crime may likely be dissuaded by the chances that in the U.S. the victim may possess a weapon?

And we should not forget that crises sometimes arise, and they usually do.  In those events we often would truly need a gun to protect our families. In the scenario of a natural disaster, or any disaster, we might need to protect our families from marauders who would seek to take more than an offered charitable share of our food, our generators, water, medical supplies, or shelter.

Regardless of the Australian model, however, the U.S is unique.  Here, there appears to be good reason to synthesize the demands of the individual for preservation of freedom, with a demand for ultimate protection of our children and ourselves from negligence, nuts, criminals, terrorists, and despots.

So how do we reconcile the right to protect our children, with the right to bear arms?  Both rights are equally important.  We are intelligent beings. We should be able to figure this out.

Universal Co-opetition.  Let’s apply the theory of co-opetition to the problem.  The act of disarming the public is in substance government forcing cooperation upon the people.  On the other hand, to continue to live with all sorts of guns with no safeguards is to allow individual competition to reign beyond reason.  A synthesis of these two behavioral forces must be found.

Some thoughts:

1. Not practical to disarm the People in the U.S.  In the first place, there are perhaps 200 million guns in the hands of the U. S. public. Counting law enforcement there are about 300 million guns for 311 million people. From a pragmatic standpoint, how could you disarm them, even if you decided you wanted to do so?  Such a course could very possibly breed a police state.  Some would readily give up their freedom and liberty to a police state, believing that the government would offer the best protection for them – “better red than dead” was their mantra during the Cuban missile crises.  But most would never give up their liberty and freedom.
2. Safety devices and regulations.  Gun owners must lock up their guns.  But more than that, soon technology will be perfected that will recognize the hand print of the owner of the gun.  It will not allow anyone else to fire it. That protection can be disengaged by the owner in an emergency.
3. Mental competency certifications. Every gun owner should be required to pass a standardized mental competency examination or otherwise prove competency.  It could involve a brain scan to determine whether the empathy sites of the brain are in intact and in good health.  The results of the exams would be subject to review by a truly independent board.
4. Promote a less-violent culture.  Do a better job reducing violence on video games, movies, lyrics, TV shows, arcades, internet and print media.
5. Do a Better Job of Keeping Guns from the Hands of Felons and Drug Dealers.  That subject needs little further explanation.
6. Family Law and Domestic Relations Cases or High Passion Situations.  During, and for a number of years following, a separation of spouses or partners, or of the sparking of a custody or high passion issue, the guns on all sides should be locked up unless or until special relief is granted by the court.  Guns permits suspended.  No tolerance-court orders and injunctions.
7. Greater security. Each school district should make its own local decisions regarding security at the local schools, including whether a guard should be hired.  Starting up a new government bureaucracy is not necessary, and is not recommended.  Former military personal or former law enforcement officers might potentially earn additional pay to do double duty as a guard as well as perform regularly as a teacher, coach, maintenance person, or administrator. Until we can insure that guns are kept out of the hands of mental patients and terrorists, we recommend that guarding of children must remain a part of social existence.

The argument that Fort Hood is an army base, yet armed guards did no good at that massacre is not persuasive.  The Provost Marshal locks up all arms that are not on the firing range or in the hands of base police.  The police are guarding the gates, not the medical training facility where the massacre took place. The provost marshal specifically disarms the medical facilities.  That is the least-safe place to be if the outer gate security is breached. No facility should be left defenseless.

The Virginia Tech arguments that the campus police did not stop the massacre are also not persuasive.  In March of 2012 a jury found Virginia Tech officials negligent.  The families of two of the 33 victims received an award of 4 million dollars. The others presumable accepted the offer of settlement.   Also, the government levied a hefty fine against the University.  The biggest problem was that the administrators covered up the initial shootings for two and a half hours, during which time the shooter continued on his rampage.  The campus cops were on a wild goose chase investigating a potential domestic violence issue.  If the fire truck takes the wrong road and never shows up, does that mean we should abolish fire trucks?

1. Thorough Background Checks On all Sales or Transfers – No Loopholes or Exceptions. Not even at gun shows or between private parties.
2. Training certification. Protect against accidents by requiring that all gun owners are certified to handle and store the weapons.  Think of it like licensing to drive a car, even though it is more than a privilege – like driving is a privilege.  The right to bear arms is a right – like free speech is a right.

10. All Registrations, Certifications and Backgrounds Subject to Privacy Laws.  To avoid the risk of potential government abuse of information – such as would be the case if Gestapo tactics were adopted to round up all gun owners, and to avoid having criminals find out locations where they might steal guns, a strict privacy law practice should be in place.  The registrations should be sealed as though they are medical records or court documents subject to gag orders.  Only upon a court order after showing good cause could the information be discovered by government or law enforcement agencies or by anyone else.

11.Beta testing – unintended consequences. Beware of unintended consequences. We must be mindful that we might not like what we wished for. So we had better beta test the solution before we put it into effect.

12.Tax the gun sales.  Pay for the protections stated above by taxes on guns and ammunition sales at the state or local level.