By Piper Bayard
Currently, a great deal of misinformation is firing throughout the Cyberverse about gun control. Tempers flaring, insults flying, and people “unfriending” those who state even the barest, most uncontested facts from any source on any side of the issue. In an effort to wrest this topic kicking and screaming from the fear mongerers on both sides, I spoke with University of Colorado Constitutional Law Professor Richard B. Collins to get the straight skinny.
image by West Midlands Police, wikimedia commons
Bayard:
Many people in the US are comparing the latest New York gun control laws to the laws of the UK, Canada, and Australia, where guns and gun ownership are highly restricted and regulated. They are concerned that the registration requirement will be enacted at a federal level, and that it will lead to confiscation. What, if anything, would prevent registration leading to confiscation from happening in America?
Collins:
America is the only country in the world with the constitutional right to own firearms at the federal level. Forty-four states also have the right to bear arms in their constitutions, and those state constitutions are not to be underestimated. The UK, Canada, and Australia never had the right to bear arms in their countries’ founding documents.
When it comes to confiscation, the confiscation question is, “Confiscate what?” If police find a nuclear device in your basement they can already take it, and we hope they will. The extreme image is that the government will confiscate handguns and rifles. I’m pretty sure that couldn’t be done. Even in Australia they couldn’t get the wherewithal to confiscate [rifles and most handguns 9mm in caliber or less], and, as I said, Australia has no right to bear arms in its Constitution. I am reasonably sure that if any US legislature had the political guts to try to confiscate guns, the Second Amendment and political climate would prevent that from happening.
A point of American law that gets ignored is that we already have legal limits on what guns we can possess. All kinds of legal limits. One example is the National Firearms Act of 1934, which banned the private use of machine guns.
Every country has a definition of a weapon so powerful that only the government can possess it. We have a line in America. In most other countries, the line is much lower than it is here; however, even the most stringent of countries do allow hunting rifles and [some] handguns.
Bayard:
In your opinion, do you believe the newly enacted New York gun laws will pass muster with the Supreme Court?
Collins:
More likely than not, they will. But I’m not at all sure. The seminal case is District of Columbia v. Heller. It is a case from D.C. with an opinion by Justice Scalia that is very pro-regulation. It does not stop people from having a gun at home to protect their houses, but once they walk out their doors, they can be regulated. New York law is very complex. In general, comparing the new gun laws in New York to the Heller case, I would say they will probably survive 2-1.
One possible issue, however, is if a federal employee falls under the requirement to report information about a patient who owns guns. According to the Patient Protection and Affordable Care Act (“Obamacare”), no wellness or health promotion activity under that Act is allowed to require the disclosure or collection of any information relating to the ownership or possession of firearms or ammunition. However, nothing in Obamacare prevents a state or private health care worker from doing so.
Bayard’s Note:
The State of New York does not have the right to bear arms in its state constitution. This makes gun control a different ball game for them than for most of the other states. California, Iowa, Maryland, Minnesota, and New Jersey also lack any right to bear arms in their state constitutions. All other state constitutions have some provision for the right to bear arms. Also, in all other states, excepting Hawaii, Kansas, Massachusetts, and Virginia, the right to self-defense with a firearm is either explicitly protected as an individual right in the state constitution or it has been upheld as an individual right in case law.
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Richad B. Collins is a Professor of Law at the University of Colorado and the Director of the Byron R. White Center for the Study of American Constitutional Law. The short version of his resume contains six pages of accomplishments, each more impressive than the last. Notably, he worked with the Native American Rights Fund, argued numerous Supreme Court cases, published countless articles in law journals and reviews, organized several symposiums, was awarded a Fulbright grant and the the Smith Kline Beckman Award in Legal Education, and was a Visiting Professor at Wuhan University and Beijing University in China.
My profound thanks to Professor Collins for giving us the Second Amendment facts in this time of high passions around the right to keep and bear arms.
In a future article, we will discuss Professor Collins’ perspective on executive orders.
Piper Bayard 
Piper,
Thanks for this and thanks to Professor Collins for an opinion unburdened with polemic or caution. Neat.
The angst surrounding this issue is strange to me, people on both sides of the aisle froth at the mouth without hesitation.
Seems to me, smoking, diabetes and tailgating kill more people. Air crashes and firearms just blow peoples logical faculties to the wind.
European governments, especially the UK, have been trying to get weapons out of the hands of private individuals since the end of the Napoleonic wars. I think USA governments will keep trying to regulate and tighten. I suspect, over time, they will succeed.
Spouse and me attempted to attend a Gun show here in GA over the weekend. (I’ve never been to one and as an immigrant from UK, such a thing is, “interesting:)”
Both days,there were lines of over 300 waiting and no places in the car park.
brendan
It saddens me that in the wake of the latest school shooting all the attention has gone to the topic of gun control. Our hearts and minds should be with the families who lost children and we should be talking about what we can do as a country to help people with mental illnesses before they get to the point of trying to access a gun. I think we get distracted from the real issues when we bicker over the surface issues that won’t make that much of a difference. If someone wants to find a weapon and hurt people, they will find it no matter what laws stand in their way. Of course, that is my opinion and everyone is free to have their own. 🙂
I agree with you, Emma. And we bicker over surface issues a LOT in this country.
Thanks for this. Nice to see a calm, sensible discussion on the issue!
Thank you, Piper.
I run with a pretty liberal crew, and we are pretty proud of Cuomo right now.
That doesn’t mean what’s right for citizens in NY would be right for citizens in New Mexico.
I would hate to see medical records get caught up in this. That does seem like an invasion of privacy.
I wish more liberals were like you. Too many of my liberal-minded friends just want all the guns banned—like yesterday, hurry! I think it should be up to the states to decide what they want to do, although it should balance out with the constitutional right to carry.
I like the idea of having individual States decide what is in the best interest of their constituents. That said, I’m not sure I trust politicians to actually carry out the desires of the people. I can hardly believe Andrew Cuomo is actually doing that for the people in NY.
I think that’s why we should always keep politician’s feet to the fire, especially the one’s we “like.” Every politician, whether an R or a D is going to make a grab for power and when they start to, that’s when it’s time to retire them. But yeah, I’m 100% about States’ rights. Keep the Fed out of most everything.
Thanks for this post. Gun owners are “certain” that the president wants to confiscate their guns when that is far from the truth because of the Second Amendment as your expert points out. Even though states don’t have the right to bear arms in their constitutions, The US Constitution supercedes state constitutions so all citizens have the right to bear arms. The president wants to dry up the sale of assault weapons and high capacity magazines, not confiscate them from the citizens who have them now. People should put on their listening ears and actually listen to what is being proposed and not get all paranoid about what “might be” but isn’t.
“The president wants to dry up the sale of assault weapons”
Maire,
Could you define exactly what an, “assault weapon,” is?
The devil is in the details. As a retired LE these ambiguities are where, “I,” find the deliberate holes in the variance of legal definition state to state. Law should not be so complex that an ordinary person cannot understand it.
This definition of, “assault weapon,” is the most stark of such poor law. It has caused the public and the media to routinely mis-state what such weapons are.
So, what do you mean, when you refer to an, “assault weapon?”
brendan
Nice perspective. America is currently foaming at the mouth on entirely too many issues. That’s more dangerous to us than anything else.
This is a nice perspective. Maybe this will enlighten people…I hope…
Hi, Piper, interesting post.
Given that 30 per cent of American homes contain a gun, total recall is simply impossible. I suspect this debate will boil down to six questions:
1-What does an individual legitimately need to defend their home? Semi- automatic rifle? Burst fire rifle? Semi-automatic hand gun? Revolver?
2 -How many? (See point 6 below).
3-What size magazine?
4-How are such weapons to be registered? Should registration be denied to people with a history of mental illness, and how would this be implemented?
5- Should the registration have to be renewed regularly as one re-registers a car? What happens if one buys the weapon legitimately and then develops a mental illness a few years later? Should the re-registration require some evidence that the person has not developed a mental illness since the gun was purchased? How could this be done? Many ‘sane’ people might find this rather intrusive. But should a gun be owned by a person with a history of schizophrenia? Or do you draw the line lower at depression? Martin Bryant, who killed 35 people at Port Arthur in Australia had the IQ of an 11 year old, and ‘may’ be autistic and ‘may’ have Asperger’s syndrome. One psychiatrist thought he ‘may’ have schizophrenia. Since he pleaded guilty, his intellectual disabilities weren’t discussed at length in court. Which mental conditions would you draw the line at?
6-What does one do about the possibility of family members, or regular visitors to the home having mental illnesses? And how could such screening be legally done? If Wikipedia’s article is correct, Adam Lanza took two semi-automatic handguns and a semiautomatic rifle from his mother, but she had another three rifles in the house, all legally owned. But it was her son that committed the crime. If I owned a weapon, I can think of one member of my own family I wouldn’t want within a hundred meters of it. The person I’m thinking of is a 30-year injecting amphetamine user and doesn’t think very clearly. I have another family member who has attempted suicide once. Should I be allowed to own a gun if there was a chance those two people might be able to get hold of it? One of my friends has a son with Aspergers. Should my friend be allowed to own a gun?
These last three seem to be the hardest of all the six questions I’ve posed.
I hope the debate in the US can proceed in some sort of rational way.
Thanks, Piper, for doing this work.
Personally, I think that “foaming at the mouth” in favor of our right to bear arms is a balance to what seems to be the increasingly close collaboration of the American government and much of the American media based on some similar ideas and values, which are not shared by yet other Americans.
There’s a great cultural (not just political) divide in this country that I only became aware of when traveling in other lands with a unified culture, such as Mexico. Mexico has a great problem with drug and gun violence, but underneath there’s a single culture as a solid foundation. We don’t have that.
So sometimes it takes a little mouth-foaming to be heard at all.
Thanks for the post Piper. Always good to add a little perspective to the debate.
As a former, but not presently gun owner I’ve got to say that confication will not work, nor will taxing or well-meaning draconian legislation. I’m torn. Because of the local gun laws I know more than a few “nutjobs” who legally own firearms. This is due mainly not having been diagnosed and placed in the system yet. I also know folks who believe that firearms are the base cause of crime. Personally I can’t decide. I agree that assault weapons have no business in anyone’s home. The odds of an armed invasion is slim. Expanded content magazines are unecessary. If you can’t kill it with one shot put the weapon away. At the max, ten shots is more than enough. On the other hand the forefathers believed that the ability to own a firearm is essential to security. Maybe not National Security, but a deeper security, something inbred in a people that were making their way across a continent that was basically unsettled and in some ways unknown. All I’ve got to say to both sides who insist on vacalizing and foaming on the subject; Shut up. Ratchet down the discussion to a level that doesn’t alienate opponents of both points of view and impedes rational discussion.
“I agree that assault weapons have no business in anyone’s home.”
Tom,
What are assault weapons?
If you mean, assault rifles, that is something else entirely. They are already illegal, as the article stated, since 1934, except under strict licensing. (S111/NFA weapons.)
“If you can’t kill it with one shot”
Sorry, but this doesn’t hold with current USA LE practice, where officers, on commencing to shoot, are taught to empty the magazine. Depending on Dept, they range from around 10 rounds per mag, up to about 16.
It doesn’t hold with my own experience of being a member of the TFU in the UK, and if you talk to soldiers, most will tell you that three round bursts are most effective in lethality/stopping.
A gun capable of firing an auto three round burst is a S111 weapon, as above.
brendan
Assault weapon: How about caliber, muzzle velocity and concesalability?
“Assault weapon: How about caliber, muzzle velocity and concesalability?”
Tom,
Let me repeat my question.
What is an, “assault weapon?”
I’m not trying to be nasty, or difficult. I’m trying to find out from the people who use the term, what they mean.
Because, IF the law is going to ban them, I’d like to find out what they, (assault weapons) are. It seems reasonable to me to ask that question.
brendan
Your conversation illustrates one of the issues with this topic. What, exactly, would one ban? An AR-15 has been called an “assault weapon”. However, this term has no precise technical definition based on function rather than form.
An “assault rifle” vs. “assault weapon” has a strict technical definition based on function without regard to form. It is automatic – a machine gun – and has been illegal to own without permit since the 1930’s.
In essence, what makes something an “assault weapon” is that it is any weapon on a list of weapons that the government (and anti-gun groups) want to ban. It is a term that was created when the original ban was put into place. A technical analysis of features that can get a firearm on the assault weapon list shows that cosmetic, rather than functional features or lethality are what differentiate an “assault weapon” from an ordinary, politically acceptable firearm.
A 12 gauge shotgun loaded with buckshot is far more lethal than a .223 caliber AR-15, but is somehow acceptable. A .30-06 hunting rifle is also a more powerful round, but again, it is acceptable where the AR-15 is not.
A point often overlooked in this emotionally charged debate is that these firearms are used in less than 2% of crimes involving firearms. A ban is not likely to accomplish much. Efficacy should always be one consideration in the curtailment or relinquishing of any right.
I, for one, would like to see someone respond to Brendan’s request for someone to provide a precise definition of “assault weapon” vs. “assault rifle” (which does have a very precise definition).
So is there a reliable source for what types of weapons are frequently use by criminals doing house break-ins? Does anyone have*real* statistics on this, and where is the source?
I’m sure there are reliable statistics out there. It’s not nearly as easy to manipulate as unemployment data, for example. As someone familiar with firearms, though, I can guarantee you that an “assault rifle” is not a weapon of choice for a home invasion. It’s much better for shooting wild pigs that are attacking on your Texas ranch. And yes. That happens.
Good at least we’re talking about it. Thanks Brendan and Piper for reasoned discourse. Now if the talking heads of both sides could abandon rhetoric designed to inflame rather than inform.
Agreed!
The fact is that people are going to hear what they want to hear. It is a fact that humans ignore what contradicts what they already know, and only listen to things that support what they already think. Now that isn’t true for everyone, and with proper training and effort you can get beyond that. Critical thinking skills are good things to have.
But that’s not my point. My point is that in this country, we already know all the answers, regardless of whether we know anything at all. Point of fact, the less you know, the more you think you know. And everyone who reads this is going to nod their heads in agreement, and many will probably think to themselves that the person on the other side of [insert issue] does just that. And they might be right, but they’re missing the fact that they themselves do it too, haha. We humans are funny animals.
I want to thank everyone for their comments. I’ve largely stayed out of this because I prefer to provide a forum wherein I’m listening more than talking. I don’t hide the fact that I think Switzerland and Kennesaw, Georgia are excellent examples of successful gun control, but today, I’m much more interested in reading your comments than in making my own. Again, thank you.
Thanks for the post – and all the comments.It’s time for rational, non emotional discussions. Civil discourse and commonsense. And an examination of what laws already exist and why so many see violence as a solution for solving problems.
Thank you Piper! I haven’t seen a calm debate on this topic since it began. Like you, we have an opinion but have tried to remain neutral listening to both sides while making sense of it all. I fear too much of the government both R & D, are using this topic to meet political agendas and should find a place in the middle and be willing to meet there and discuss rationally a real solution to this problem. Coming from the deep south, we have family members who stand on the right side of this debate and in the field we are in, we have close friends who are on the opposing side. But isn’t that what America is all about? Diversity?! A melting pot filled with different ideas, all going towards the same objective and proud to live in a country where one is free to express their own opinions and beliefs. Personally, I don’t like the idea of big government and I fear that if they can mess around with one right, that other one tucked tightly above it will be the next. Thank you to all of the other participants, for an intelligent debate, civilized remarks and for managing to show the rest of the world how it can be done. Let’s hope we inspire more as we will be sharing this with all of our networking friends and family. Best Post this year!