Framers of the Constitution, such as Thomas Jefferson, supported citizens’ right to possess firearms.

Before America came along, this is how it worked: The ruler told you what you were allowed to do, and nothing else were you allowed to do unless he said you could (if he ever did).   America introduced a different principle: You could do anything you wanted, unless the government told you that you couldn’t.  And if the government told you that you couldn’t do something, it had to have a good reason.  Either because that action would cause harm, or because it would infringe on someone else’s rights, or both.  (To you rights scholars out there – I know this is simplistic; but I think the principle is sound.)

Using the First Amendment as an example, the principle works out this way in practical terms.  Freedom of speech means you can say anything you want.  But if you say “I have a bomb” in an airport security line, even if you don’t, you can be punished (the Constitution doesn’t require TSA screeners to have a sense of humor).

TSA security line. Don’t ever say “I have a bomb!”

Note what doesn’t happen: You are not forbidden to speak, just because you might say “I have a bomb.”  You are not gagged, nor are your vocal cords temporarily paralyzed because you might choose to say you have a bomb while going through a security line.

The same applies to other ways of expressing free speech.  We are free to write or publish anything we want.  But the law only allows us to be sued if we hurt someone through false accusations that libel or defame.  But no one takes away our computer nor printer, or access to a publishing company, just because we might libel someone.  We are not deprived of access to these things even if we have previously committed libel and might do it again.

As far as I can tell, this is so for every one of what are called “inalienable” rights.  The government can’t invade your home without good, objective evidence that they will find there evidence of criminal activity.  The government can’t lock you up just to keep you from associating with undesirable persons.  The government cannot stop you from owning a house or other property just because you might do something on or with it that harms the person or rights of someone else.  And so on.

Traditionally this has (mostly) even held true for the 2nd Amendment.  You are allowed to own a firearm of your choosing and use it however you wish.  But if you use it irresponsibly to threaten, injure or kill someone, you are punished for the illegal act, not for owning the firearm.

Yet if some folks get their way, that is about to go through a big change.  A whole category of previously-legal firearms and the features associated with them – so-called “assault weapons” (“tactical rifle” is actually a more accurate term) – are about to become illegal.

Popular civilian version of the AR-15 tactical rifle.

I know there’s a quibble – those who already own one of these weapons would get to keep it for now.  But if the law passes, no one who isn’t already an owner will be able to take possession of a tactical semi-automatic rifle in the future under penalty of law.  The purpose of the legislation is, in principle, to reduce the level of ownership – ideally towards zero – through attrition or other means.  Proponents recognize this will take time, but they think that if the law is passed they will eventually reach that goal.

What this means, essentially, is that someone who takes possession of one of these weapons after such a ban might go into effect can be punished for an action that has not resulted in harm to anyone, nor infringed on anyone’s rights.  This is a clear violation of the principle that anything that doesn’t cause harm or infringement is permitted.  Indeed, this presents a turn in the founding principle of America.  It changes treatment of one of the original inalienable rights from a “restriction only if harm is done” model to a “permission from the government” model.  This seems an exceedingly dangerous precedent, if only from a Constitutional perspective.  We know the effect that precedents can have.  If it can be done with one right, might the same principle be applied to others?

I know some of you are thinking “Now wait a minute!  There is, after all, a difference.  In committing a hurtful speech act, someone’s reputation might be damaged.  But in misusing a firearm, someone might die.”

Actually, there are speech acts that can lead to death.  There’s the famous Yelling-Fire-in-a-Theater example (could lead to someone being trampled).  But in this case I more often think of what happened to Richard Welch, the CIA station chief in Athens who was assassinated after being identified in a magazine article.  Free speech can, on occasion, have fatal results. Still, I think we’ll all agree that few punishable speech acts lead directly to unjustified deaths.

But there is another, more interesting parallel, that involves something else that is widely popular, yet is often misused and regularly contributes to many unjustified deaths.  Yes, I’m talking about alcohol consumption.

“Guns vs. booze?”  Some people have objected to the analogy.  “They’re different cases.  You can’t compare them.”

Oh, but you can.

True, how we think of alcohol is different than how we think of guns.  But there are both similarities and differences between the two cases that make alcohol an excellent model to contrast/compare with Second Amendment arguments.

Let’s start off by enumerating some of the differences:

• Alcohol is a consumable substance, firearms are durable objects.
• Alcohol is physically addictive, firearms are not.
• The mere consumption of alcohol impairs judgment and behavior.  The mere possession of a firearm does not.
• Firearms have some practical applications.  Alcohol does not – it serves only an entertainment function.
• Firearms possession and lawful use is Constitutionally protected.  Alcohol possession and consumption is not.
•  Most harm from firearms use is directly intentional.  Most harm from alcohol consumption is not directly intentional, though it starts with an intentional act..
• Alcohol consumption results in more unjustified fatalities annually than firearms use does.

Drunk driving kills more people per year than firearms murders.

[For perspective, keep the following statistics in mind:  The Center for Disease Control estimates there are 80,000 alcohol-related deaths per year, compared to 32,163 total firearms deaths including suicide and accidents (in 2011).  In 2011 9,878 of those alcohol-related deaths were caused by drunk driving (compared to 8,583 firearms-related murders the same year).]

Now, let’s consider how they’re similar:

• Misuse of both firearms and alcohol can lead to unjustified deaths.
• Society imposes some regulation on the possession and use of both.

Whiskey bottles on display.

Here’s the crux of the comparison; Alcohol, which has no practical use and merely entertainment value in society, is only criminalized when its use leads to harm to others.  In other words, beyond the requirement that those who imbibe must be above a certain age, there are no further restrictions on possession or use of alcohol, even if you commit an illegal act involving alcohol.  You are never forbidden, for example, to own or drink whiskey even if you get behind the wheel of a car. You are punished for driving the car after you have drunk the whiskey.  Even if you have already been convicted before of a crime involving alcohol (e.g., driving drunk) you will still never be prevented from possessing or consuming, say, vodka or gin, just because it is possible (or even if it is likely) you might drive drunk again.

Yet that is the equivalent of what is being proposed for tactical semi-automatic rifles (“assault rifles”) and large-capacity magazines.  Citizens may be forbidden the possession and lawful use of these weapons just in case a tiny fraction might later be employed in a harmful, illegal way.  This would be the same as saying no one is allowed to buy or drink scotch whiskey because a minority of those consuming it will almost certainly drive drunk and kill someone.

It strikes me not just as odd, but in fact wrong that firearms ownership, which is enumerated as a right under the Constitution, could be more severely infringed than something like alcohol consumption, which not only is not a guaranteed right, but in fact kills far more people.

What do you think?

I have a shocking confession to make. In tenth grade I took two guns to my high school. Even worse, several times as a teenager and young adult I carried rifles, pistols, and ammunition into the cabins of scheduled airline flights. More surprising, perhaps – is that my teacher at school and the flight crews knew I had these infernal instruments of destruction – and did absolutely nothing to stop me. I managed to escape prosecution on all counts.

Why did I get away with this? Why wasn’t I stopped? Because at the time all these actions were perfectly legal. I took my semi-automatic deer rifle and my pump action .22 to school to give a how-to talk in speech class on the proper way to clean firearms. And every time I flew to or from my summer jobs in various parts of the western US, I would carry those same rifles through the airport, past the gate, and onto the plane, then hand them to the flight attendant. She would stow them in the forward coat closet, to pass back to me when I exited the plane at the end of the trip (that was back when flight attendants were always female and aircraft had closets for passengers’ coats). On a couple of flights I even carried a handgun in my carry-bag, stowed under the seat of the passenger in front of me.

Soldiers with FAL assault rifles.

I have another confession to make. Back when I was 16, I almost bought an assault rifle. Yes, that’s right. At 16. A rapid-fire, multi-shot, military-style rifle with a detachable magazine that could hold 20 or more cartridges. I ended up buying my deer rifle instead, for $150 dollars. But for the same money I could have purchased the FN-FAL 7.62 MM assault rifle hanging over the cashiers desk, or one of the several AR-15s or M1As in a rack behind the register (actually, the AR-15s were cheaper than my deer rifle). I paid cash I had earned mostly from baby-sitting money – no questions asked, not even about my age; and no background checks.

At the time, I could have ordered by mail from a wide list of surplus military rifles, handguns, and other weapons, also with no questions asked. Some of these were “obsolete,” though still effective. A British Lee-Enfield infantry rifle sold for a measly $17.00 plus shipping (they average around $500 now). A semi-automatic M-1 carbine with collapsible stock and 15- and 30-round magazines sold by mail for maybe around $50.00 (even a non-shooting replica these days goes for more than 200 bucks). It was a cool gun, and cheap to shoot. Any kid who wanted one could easily earn the money and order it. Some did, including a friend of mine.

Given the media hysteria today about firearms attacks, you might think the most surprising thing is this: These are the same types of guns available today. They were even easier to get back then than they are now, since gun control laws today are far more strict than they were 40 years ago. Yet back then there were no school shootings by teenagers or young adults, and there were virtually no mass shootings of any other kind.

Paul H. Smith (2nd from right) along with friends Jeff Whipple, Clark Whitney, John Norman, and Charlie Norman at a Boy Scout gun safety class.

I know you are now asking yourself, “Wait a minute. I thought gun control was supposed to cut down the number of firearms homicides?” The quick answer is that, well, overall it doesn’t. Starting with the Gun Control Act of 1968, gun restrictions in the US have increased in step with the increase in firearms-related homicides, to a peak in the early-to-mid 1990s.

(If we were not thinking clearly we might be tempted to say that, going just on the correlation, gun control actually causes gun crime; however, causation in a case like this is very complicated, and the case for gun control causing gun crime is no more “there” than it is for gun control preventing gun crimes).

But that is not the question I have in mind here. That question is, instead, “If high-power, multi-round firearms were more easily available to youth forty or fifty years ago, why is it only in the past 20 years (and especially in the past ten or so) that school shootings have become so common?”

Ironically, firearms are the most non-causal of all the ingredients that may go into a school shooting. What do I mean by that? The mere availability of a firearm obviously doesn’t create the motivation to use it on school children. That motivation must arise from some other source, and the firearm merely becomes the tool by which the motivation is realized.

For actual causative agents, I would nominate certain culprits that many others have suggested as well: Hyper-violent video games and movies, together with the 7/24-hour news cycle, and the failings of the mental health industry (I will have more to say about these in a later post, and still later will discuss a further culprit, the diminishing purpose in life for young males in our society, that may be the most causal of all).

Of course, the entertainment industry and the media have been quick to declare “not my fault!” and provide various bits of evidence and argument to try to get themselves off the hook. In a later post I will give my views on how and why they are wrong.

President Obama has now unveiled his recommendations for new firearms restrictions. I wish to be fair, so on a surface reading I think there are some good ideas here.  I will have more to say later about the ones I don’t think are so good.  But having listened to the rhetoric on both sides for a month now, I find troubling the prospects of what may (or may not) ultimately happen. As I mentioned, the usual suspects – the entertainment industry, the media, the mental health community and – to be fair – even the firearms lobby, are claiming innocence. But something is causing the rise in school and other mass shootings.

Unfortunately, despite lip service about assigning blame where it is due and taking steps to improve things in the future, it seems to me that much of both the administration’s and the mainstream media’s agenda is to scape-goat firearms. (On the part of the administration, perhaps this is because they know that nothing substantive is likely actually to be done about video games or film content – or even mental health policies.  On the part of the media, perhaps I am cynical — but I can’t avoid the suspicion that they are only trying to point attention away from their own culpability in the matter.)

As a politician it is, of course hard for the president to ignore loud and unfocused cries to “do something, anything!” coming from all quarters, most pointing at guns as the most visible aspect of the whole sorry mess. And I agree, something should be done. But the present debate climate sounds very much like the old joke about the drunk looking for his keys under the street light. “Where did you lose them?” he is asked. “Over there,” he replies, pointing off into the dark. “Then why are you looking here?” “Because this is where the light is!”

And, just as the drunk is never going to find his keys, in such a climate “just doing something” will likely not manage to actually solve anything, either, other than making some people feel good about themselves.  Is that really enough?