THE BLOG
12/17/2012 05:12 pm ET Updated Feb 16, 2013

Tough Gun Control Can Be Constitutional

President Obama's call to use the power of his office to prevent more tragedies like Newton from happening could be a watershed moment in American history. As he said, there are no more excuses for inaction. But the ultimate test of this -- perhaps the moment that could define his legacy as president -- will be how far he is willing to go to reduce the number and availability of guns in this country. Unless and until this country takes drastic steps to make gun ownership more difficult, gun ownership more restrictive, and enacts real measures that restricts access to guns to both criminals and the law-abiding there will continue to be more heartrending pilgrimages to sites of mass murders like Newton, Aurora, and Blacksburg. There is a reason that more Americans have been killed by gun violence than have died fighting foreign wars. And it is spelled in four letters: g-u-n-s. But how to do it?

In two cases -- in 2008 and 2010 -- the U.S. Supreme Court ruled that the Second Amendment protected an individual's right to own a gun for lawful purposes, most especially, in self-defense of their home.

Let's take that as our starting point (at least until one of the conservative members retires in the next four years and President Obama gets an opportunity to rebalance the Court). All the Court held is that you can't ban gun ownership. But it didn't say that reasonable restrictions and barriers to gun ownership could not exist and survive constitutional scrutiny. And guns for unlawful purposes seemed to be, forgive the pun, fair game.

Let's deal with the last point first. Assault-style weapons do not appear to fulfill any lawful purpose other than creating mass carnage. Nor do 30-round or other high-magazine clips, unless you are defending your home from a massed invasion. Given the availability of better alternatives, restricting ownership of assault weapons and high-capacity magazines probably survives constitutional scrutiny.

Now comes the hard part. Infringing on a constitutional right is no small matter, and the Court made damn clear that because it was the Second Amendment is part of the Bill of Rights, it essentially is as protected as any other constitutional rights -- say, freedom of speech, or the right not to be discriminated against because of the color of your skin. That means any legislative scheme would have to pass the "compelling interest" test. On the other hand, it also means that if you show a compelling interest, you can curtail some aspects of that right. And the only way to reduce the chances of another Newtown or Blacksburg is to reduce the volume of guns in our system.

Here's what I would propose -- it is by no means exhaustive:

  • Restrict gun ownership for self-defense home use ONLY. That strictly adheres to the Court's interest in protecting gun ownership for self-defense in their home. It would also wipe out the concealed carry weapon laws that are ostensibly for out-of-home self defense but which, as we see too often, can be used for anything but self-defense.
  • Required passing a federally mandated and regulated ownership, proficiency, and psychological test in order to purchase a handgun. The test would confer a license to own, which would be renewable every several years and require passing all tests again.
  • No one could sell a gun to anyone who did not possess a license to own. No one could sell a gun unless they were registered and licensed by the federal government.
  • Anyone currently owning a gun who is convicted of a crime and anyone who voluntarily or is involuntarily committed to a mental institution would have their license suspended until a hearing is held to determine fitness and/or competency to keep their license. Anyone applying for a gun ownership license would be denied if they were convicted of a crime or voluntarily or involuntarily committed to a mental institution.
  • Required registration of the gun AND prohibiting the sale and transfer of the gun without notifying a government agency of the sale and transfer of the title of the gun to a named party.
  • Required registration of all ammunition bought and owned above a certain capacity deemed necessary for home defense.
  • Mere possession of a gun outside the home would result in a stiff sentence of mandatory jail time. Usage or possession of a gun during the commission of a crime have significantly severe enhancements to the sentence.
  • Possession of a gun without a license would result first, in a heavy civil fine, and a second violation would result in mandatory jail time.
  • Hunting rifles would be separately regulated, requiring another license and heavier restrictions on usage and ammunition.
  • Restrict the number of guns that any one individual or family can own for home self-defense.
  • Completely bar the sale and manufacture of "upgraded" ammunition (hollow-point, talons, etc.) to anyone but law-enforcement agencies. Possession of such ammunition by anyone else would be a felony.
  • "Collector" guns would be required to have firing components removed and permanently rendered unable to fire, unless they are owned by a certified museum or historical society with strict registration requirements.
  • Fund research into advancing technology to require fingerprint locks on guns would infinitely enhance the ability to restrict illegal access.

There are several compelling reasons that Congress can cite for imposing these regulations. Guns have become far easier to use as more and more are made using non-metal components; they are lighter, easier to shoot, and more accurate. The health costs associated with treating gun wounds, including the emotional and psychological costs on the victims, their friends, families, and witnesses are a significant burden to the entire health system. Requiring registration and restricting the number of guns in America reduces the availability of guns on the secondary and black markets and, hence, availability to criminals.

Would this make gun crime disappear overnight? No. But with a lucrative market choked off, gun manufacturers would have no choice to to reduce manufacture, at least for the domestic market. It would require strict oversight and enforcement for the first few years, to ensure that we don't devolve into a Prohibition-type era that gun advocates forecast. But the fact that people can still get guns, albeit under stricter conditions, ensures that their Second Amendment rights are still upheld.

When I was an elected official in San Francisco, I tried to deal with gun violence. I authored laws that banned the sale of "Saturday Night Specials" in San Francisco and put strict requirements on the sale of ammunition. In retrospect, it was admirable, but way short of the mark. What we need is something comprehensive. Anything else is playing around the edges.

The fact is, evil does exist. The fact is, even if we pour money into mental health services, some people will fall through the cracks. But without easy access to guns, the chances of another pilgrimage to a scene of sadness and carnage becomes slimmer and slimmer. And that is the only way we can stop the madness.

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