An Act intended to help curtail the epidemic of gun violence in the United States that is facilitated by the excessive number of firearms in circulation and the ease with which they are obtained

 

 

         It shall hereafter be the policy of the United States, by any legal means, to curtail the manufacture, distribution and sale of firearms other than those clearly designed and intended for military, law enforcement or legitimate recreational purposes. 

         What follows is an outline, not to be taken as exhaustive, of provisions, to be enforced cooperatively by federal, state and local authorities. It assumes that the federal government will use all available incentives to ensure complete cooperation by the latter. This might include creation of a federal civil cause of action by which a citizen could compel enforcement of the Act by local or state police agencies.

1.    Gun registration. Within one year of enactment, every privately-owned firearm in the United States shall be registered with the appropriate authority. Registration renewable every three years. (Presumably, compliance will be less than 100%. After one year, any unregistered firearm found by law enforcement shall be confiscated and its owner subjected to a fine.) Law officers conducting legal searches of any building or vehicle shall confiscate any unregistered firearm discovered.

2.    Owner licensing. Within one year of enactment, any person possessing or wanting to possess a firearm must obtain a federal license from an authorized local agency. Background investigation shall take not more than 90 days and not less than 60 days. A reasonable fee shall be set. License is renewable every three years.

3.    Sales of firearms (new or used) permitted only through federally licensed dealers. An individual wishing to sell a firearm may do so only through a licensed dealer, who will determine a. that the weapon is properly registered and b. that both seller and buyer have valid owner’s licenses. “Gun shows” are hereafter prohibited.

4.    Manufacture of firearms and their sale shall be limited to products classified under this Act as “sporting arms.” Manufacture and sale of firearms classified as “combat-style weapons,”  as well as handguns not designed for competitive target shooting, is hereafter prohibited. The sole exception is for firearms designed for and exclusively available to military and law-enforcement organizations.

5.    Sporting Arms are defined as firearms designed specifically to be used for hunting or target shooting. Long guns (rifles and shotguns) shall measure a minimum of 30 inches from butt stock to barrel tip and shall have a maximum magazine capacity of 5 rounds. Repeating actions may be manual or semi-automatic. Manufacture, sale or possession of large-capacity magazines or devices designed to convert semi-automatic to fully-automatic fire is prohibited.

6.    Ghost Guns and any other do-it-yourself firearms are strictly prohibited. Advertisement, sale, distribution or possession of plans, instructions or materials designed for the manufacture of a firearm by 3-D printing or any other means is strictly prohibited.

7.    Buy-Back Programs. Congress shall annually appropriate a substantial sum to be distributed to local jurisdictions throughout the nation for the purpose of conducting a program to buy firearms from individuals at a fair market price. These programs shall be perpetual and well-advertised. Proof of ownership or licensure shall not be required of the seller. All firearms thus collected shall be destroyed.

8.    Enforcement of the provisions of this Act shall be the responsibility of all law enforcement agencies, local, state and federal. It shall be the policy of all agencies that, upon legally entering any dwelling, building or vehicle, an officer shall be alert to the presence of a firearm. Should one be found, the officer shall demand to see its registration document and also the license of the responsible person. In the event that either document is not present and in order, the officer shall confiscate the weapon and any associated ammunition and accessories and place the responsible person under arrest. Absent production of appropriate documents within 30 days, the confiscated materials shall be destroyed.

 

 

 

 

 

Fire in the Theater

     "Shouting fire in a crowded theater"  is probably the most quoted passage of any from an opinion of the Supreme Court. It is also the most misquoted, the most misunderstood and certainly one of the most regrettable. Its author, Chief Justice Oliver Wendell Holmes, disowned it in subsequent cases, though never in so many words.

      It will come as no surprise that this is a thought prompted by the perverse political spectacle of Donald Trump. He has come closer to turning the principle of free speech on its head than any politician at least since Sen. Joe McCarthy.

    What Holmes actually wrote in the 1919 case of Schenck v. United States was:

     "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.....The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

    What Holmes was trying to say, obviously, was that the freedom of speech guaranteed by the First Amendment has a limit. By way of illustration, he fashioned a metaphor that seemed to draw the line at the most extreme point imaginable: A false statement made under circumstances where the predictable effect would be a panic, a stampede and almost certainly grievous injuries. A prank, but worse than a prank. Unfortunately, people who quote this statement by way of proving that speech has its limits usually drop the word "falsely," turning the statement into a silly parody of itself.

    As it happened, Schenck and his wife had been arrested for distributing pamphlets opposing the World War I military draft and encouraging men to resist it. How Holmes, or any of the other eight justices who joined his opinion made a connection between that conduct and the hypothetical cry of "fire" in a crowded theater, all but defies comprehension.

    There's a similar disconnect when Trump proclaims that a protester at his rally is interfering with the free speech of Trump's partisans and then, in the next breath, implores his followers to "get him out of here" or "punch him in the face." Lest there be any doubt about his meaning, he promised to pay the legal expenses of anyone who took him literally. There was no reason to think he was speaking figuratively.

    When one of those Trump zealots did as requested in full view of God and cable news the other night in Fayetteville, it was the predictable consequence of Trump's own words spoken to an audience of literal-minded fans. What more graphic illustration could there be of the "clear and present danger" posed by repetitive, reckless speech on a national stage? 

     I gather that the man who threw the punch in Fayetteville has been charged with assault and battery, but that the district attorney has considered then declined to seek an indictment against the person who incited the crime. I suppose that's to be expected -- prosecutors, who are elected in this state, are not famous for their political courage -- but still it's an opportunity lost. 

     Charles Schenck's 1918 anti-draft pamphlets were nothing even remotely analogous to "falsely shouting fire."  Donald Trump's "Punch him in the face," on the other hand, is precisely the kind of over-the-line speech that Chief Justice Holmes was trying to tell us lies outside the zone of First Amendment protection. 

      Trump ought to be indicted as an accessory to the crimes committed in his name.  He ought to be sued.  Free speech does have his limits, and he has demonstrated, again and again, where that line ought to be drawn.