Common Use v. Common Sense:
the turning point in the Gun Debate in America today.
We have a long history with guns and killing in America. Accepting where it came from has to be part of being determined to make it stop. And we must do everything we can to make it stop.
In the past two weeks we witnessed anti-black racist mass murder at a grocery store in Buffalo, NY, a political shooting in an Asian church in California, and the slaughter of 19 innocent children and two of their teachers in an elementary school in Texas. There are more mass murders in this country than anyone but a computer data base can keep track of. And the worst weapons of choice are those designed for the task: assault rifles. Prior to that, the rise of antiSemitism unleashed multiple attacks on synagogues, and prejudice and racism drove other attacks against homosexuals, latinos and more. The favored tool of hate is not the pen. It is the AR-15.
Our nation was born with a struggle between an oppressive monarchy that hired mercenaries to police our colonies with military force. The indignity and inhumanity of that inspired colonial leaders to rise up in arms to force our independence through the pain of war. The evil of systemic enslavement of black people, upon which the economic development of much of the new country depended, was ultimately overthrown through bloody civil war and 2% of the population lay dead through force of arms. The conquest of the West came through the armed colonization of native territories, and the concurrent armed population defending itself in scattered towns and homesteads before law and order could be established in due time. And in the twentieth century three generations of Americans were drafted to war, and thought to fight to protect our nation's freedom, interests and allies abroad. Weapons have been synonymous with freedom and liberty in this land for 400 years.
When hate is unable to change society in any peaceful way it will not give up and accept the status quo. The inevitable end to its path is killing.
There will continue to be those who will seek the most destructive force that can acquire in order to achieve that goal. Why pick up a pea-shooter when you can have a military style assault rifle?
I believe in the right to bear arms. I believe that the Supreme Court has been correct in its interpretation of that right in recent years. But we are about to face a tipping point, and it is based on two competing concepts: Common Sense Gun Laws and Common Use standards for legal possession. Let's look at them:
In Washington DC v Heller (See Cornell's https://www.law.cornell.edu/supct/html/07-290.ZS.html), the right to posses weapons for self defense was asserted, and the pistol specifically was upheld, in part by a principal called "common use." Basically, if a type of weapon is currently in common use for legal purposes, then the court ruled that the weapon can not be banned by the government. You can not own an artillery cannon. You can own a rifle or a pistol.
In the coming weeks, the court is nearly certain to strike down New Jersey's may issue statute which effectively makes it impossible for ordinary citizens to carry a gun (open or concealed) anywhere but on their own private property. Weapons in public will become legal overnight. This will happen. But I do not worry about this because in the 25 states that already allow it there is no increased pattern of violence.
The real threat is not about people having guns in public, but by the accessibility of assault rifles. It is about what gun the malevolent shooter can get their hands on. When assault rifles were banned, mass shooter attacks decreased. When the ban expired, mass shooter attacks increased. To ban such a weapon, the argument needs to be made that they do not reflect a reasonable standard of common use.
What the court will need to determine at some point is whether or not an AR-15 is a weapon in common use for a lawful purpose. With over 16 million such "modern sporting rifles" in legal possession by Americans by 2018 (see The Washington Post here), it seems like an easy argument that the common use standard will be met and the weapons will continue to be legally sold nationwide.
By this point I am trying not to seeth. How can that be? Yet the discussion about how to end gun violence has to begin with a dispassionate understanding of what the status of guns in America is. We may not like the facts, but they are facts. Assault rifles may be here to stay.
So what can be done about gun violence? I do believe that there are many effective laws that can be passed to limit access to guns and to strengthen our common defense against their illegal use, without losing the essential value that a person has a right to have and use a gun to defend themselves in both private and public settings.
Learn about and support the Common Sense Gun Law movement. Here is Congressman Joe Morrelle's page on the topic. It is excellent. Encourage your lawmakers to support every one of these measures from background checks, to magazine and ammunition limits and bans against military weapons for civilian use.
Common sense means simply that you don't need to be able to out-gun the police to be able to provide for your own personal self defense. Common sense does not disarm the citizenry, nor does it empower the random person with the highest power attack weapons known to society. Common sense means that people with red flags must be known to every data base, and prohibited from buying any weapons in any jurisdiction. So that means real universal background checks for everyone's protection. Common sense means that you must secure your firearm from use by minors or those prohibited from owning one themselves. Honestly, only the most unreasonable extremist would hold that anybody of any history can own any gun in any place at any time.
People are dying. Children are slaughtered. The time is now to act. But act reasonably with a realistic and pragmatic hope for real change. The "pro" and "anti" gun lobbies will, by definition, not get their way. Given where we are as a culture and a nation, we must use our Common Sense to define and defend the right to Common Use.
An ordained Rabbi, Robert Tobin holds degrees in International Relations and Criminal Justice.