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    Greg and Beth

    the political and personal musings of two
    mountaineers living in west-central Florida
     
    SayUncle's Thought Experiment Comment
    Gregory Morris, 4/30/07 12:00:01 am
    SayUncle’s Challenge

    Like quite a few other folks, I’ve been thinking about this. It makes sense to ask the question “where will you compromise” when it is clear that we’ll never get precisely what we want (at least as long as we have a liberal biased media, and a bunch of nanny-statist politicians.)

    First of all, it is a bad idea to rewrite the laws until we get a majority of libertarians in congress (yeah right.) The reason I say this is not because libertarians are pro-gun, in fact that has nothing to do with it. Today’s congress sees any new bill as an opportunity to attach riders, pay raises, pork, etc. So even if they managed to assemble some good legislation (unlikely) it would be killed with a bunch of garbage. So in addition to a good law being adulterated by bad additions, those additions would change the politics so that instead of voting for or against a law, they’d be squabbling about unrelated details. It is like funding the war in Iraq on the condition that we set a pull-out date. The two are entirely unrelated… that’s why I hate politics. We’ll assume for now that the law will remain pure.

    Why is it a good idea to rewrite the laws? In addition to being largely unconstitutional, current gun laws and regulations are convoluted, difficult to keep track of, often contradictory, and occasionally they are even factually incorrect. It is difficult to know if you are breaking the law or not, and that is a huge problem. When there is an unintentional borderline crime, it often goes un-prosecuted, but who says that won’t change? How can any citizen be expected to understand the nuances that routinely confuse police, lawyers and judges? You shouldn’t have to hire a lawyer to verify that something you are doing to your personal property is legal. This is common sense.

    Now I’ll get into the actual challenge. There is a tricky balance between a law that is a skeletal framework and a thick pile of details. I mention this because framework-only laws can be royally screwed up by the courts. At the same time, thick detail-laden laws tend to be rife with loopholes and inconsistencies. I tend to lean towards thinner laws, because technical/physical details tend to be solely “here and now” or “feel good” additions. Politicians tend to be lawyers more often than they are engineers. This is tragic because they are incapable of constructing a bullet-proof law, and usually don’t want to anyway. They tend to be more concerned with the next election than writing a law that works. That is why we have piles and piles of intricate laws that you need some kind of uncanny brilliance to navigate. My first proposal is that we fire congress and replace them with engineers. Ok, just kidding, that is my snobby, elitist, inner-technocrat trying to get out.

    My First Proposal is that the law be engineered by people who understand the issue, not slapped together by vote-grabbing politicians. The politicians still have to vote on it, but they don’t get to write it (of course congressmen don’t actually write the laws anyway, so when I refer to the act of a congressman, I really mean their staff.) There should be nothing vague about what is or isn’t an antique/replica/C&R/etc. There should be nothing vague about short-barreled rifles and pistols with detachable stocks. Etc. Etc. Etc. Things like these border on utter lunacy. If you don’t know the difference between a barrel shroud and a thumbhole stock, you (and your staff) have no say in drafting the law. Period. We have to stress CORRECT gun knowledge in drafting the text of a bill concerning guns! I'm not saying the semantic difference between an "Assault Rifle" and a "Semi Automatic Scary Black Gun" matters so much as simply understanding that guns come in all shapes, sizes and colors. Features don't matter. Function, however, does.

    Second proposal: No mandatory sentences. That sounds like I am soft on crime but I’ll tell you why I’m not. Bad criminals should go to jail until they are no longer a threat (i.e. either life, or complete rehabilitation, which ever comes first.) I’m OK with that. But laws aren’t always “just”, and there have been too many cases of judges saying “you don’t deserve 3 years in jail, but I have no choice.” In Florida, for instance, if you point a gun at a menacing thug who is in your driveway, you can be arrested for assault with a firearm. That is a felony. That is a minimum of 3 years in jail. All the teen has to do is lie about what you did with the gun, and you are in a heap of trouble. I think if a judge sees that you were afraid, because the kid had a baseball bat (even if he wasn’t threatening you) he would probably understand that it is better to scare the kid off than to wait and see what happens. But if a jury convicts you, the judge’s hands are tied, and off you go to jail!
    So you are saying, “How do we make sure that bad people don’t get off with light sentences because of weenie judges?” I think you force prosecutors to push harder. Make it impossible for defendants to plea out of a “crime-using-a-gun” charge. To be cliché, throw the book at ‘em. Even if the judge wants a light sentence for a gang-banger (those judges are out there folks) they have to sentence the convicted for each and every crime committed. Maybe even write suggested sentences into laws, and let the jury decide.

    Third Proposal:
    Whatever is decided upon, the federal law should not go into effect until a year after it is passed. First, this gives the states time to react (strengthening, loosening or abolishing their laws accordingly.) Second, and more important to this scenario, it gives the raving media, and the far left/right public time to settle down about it. There will be parts everyone hates, since we are talking compromise here, but there is no reason that politicians should have to suffer for actually getting along with each other. If we included a longer time-to-take-effect on laws, that would limit knee-jerk reactions somewhat. Unless a vote is taken by Congress declaring an emergency issue, then any law should be required to sit around for at least a few months before going into effect. Gun right/gun control is not an emergency issue right now. Important, yes. Emergency, no.

    Fourth Proposal: This goes along with #3… there must be a sunset clause on any controversial parts of new legislation. I personally think that all legislation should have the opportunity to expire at least once before it is made permanent. This also goes back to my disdain for the huge mess of unintelligible laws out there. From a pragmatic standpoint this makes politics more difficult, but in the name of cooperation, it allows politicians to say “yeah, we allowed that to pass, but if it doesn’t work out, we’ll just let it go in 2 years when it sunsets.” Of course they won’t say it that way, but that is what they’ll mean. I’ve got a rant about sunset clauses written up, I just have to do some more editing before I post it.

    Fifth Proposal: Consider conceding another typically conservative issue for gun/defense rights. Gay marriage maybe? Choose something that doesn't really matter. I know that falls outside the parameters of this challenge, but I think there are a lot of less important issues out there (what is more important than the ability to defend yourself?!) As long as we aren’t giving up any other rights, I’ll concede issues elsewhere for the Second Amendment. Would you trade socialist healthcare for an amendment to the Constitution, explicitly stating that non-felons have the absolute individual right to manufacture, purchase, possess and carry firearms and ammunition? Of course, that particular issue may become moot depending on Parker going to SCOTUS.

    Sixth Proposal: Take away BATFE's ability to capriciously write policy. If a law is good, it should stand mostly on its own. I understand that the there need to be some policy decisions that should not exist within the text of the law, and that is fine. However, two things need to happen. First, the law must clearly and explicitly state what the BATFE can and cannot regulate. I think it is pretty clear that they should focus on making sure people who aren’t allowed to have guns don’t have them, and anyone breaking the law is brought to justice. Secondary to that is their ability to regulate and define how various guns are classified, etc. Most of that should be left up to the courts. Second, there needs to be public oversight of the BATFE whenever they add or change policy. This goes without saying, but currently the BATFE can really make any regulation within their charter and face no repercussions. Granted, they have been pretty good about things in general, and they tend to be technically savvy (except for occasional complete ineptitude, but that is more a statement of opinion.)

    Seventh Proposal: CCW permits should remain the domain of individual state control. This is partially a concession to liberals who want to ban CCW altogether, and partially a nod to states’ rights which are largely ignored these days. Since I’m suggesting this remain a decision by each state, I’ll also say that there must not, under any circumstances be any federal limits on where people can carry. Federal carry laws mixed with state carry laws mixed with county carry laws mixed with city carry laws make it impossible for an individual to know whether or not they are legal. Many states have pre-empted cities and counties, and they should all be encouraged to do so. It is easy to tell if you have crossed the border from one state to another, but it isn’t so obvious sometimes when you pass from one “OK to carry” zone into a “gun free” zone. In fact, one place that Congress ought to have a small voice in concealed carry is to legislate that any place that is off-limits to concealed weapons must be obviously marked as such. Without obvious markings, a CCW holder who has committed no other crime cannot be prosecuted for carrying in an off-limits place.
    As much as I would love to see federal legislation saying that a CCW license has to be honored by every other state, I know that it won’t ever happen. For a state that doesn’t allow their own residents to carry yet allowing out of state residents to carry is unfathomable to most people.

    A note regarding CCW… States should be encouraged to let the DMV handle CCW because it simply makes sense to add a CCW endorsement to a driver’s license. In WV, for instance, you get a separate non-photo carry license, and you have to carry it with your driver’s license. In other states, it is often a separate photo license. Since I believe that the federal government should never impose unfunded mandates on the states (something I also believe to be unconstitutional) I’m not going to call this mandatory. I just thought I’d slip this one in since it is common sense.

    Well, that’s about it. I know I didn’t cover all of the gun issues, but I think I covered how such a law (or set of laws) should be drafted.

    BTW, I tend to agree with the Armed Canadian about the militia. Unfortunately, it entirely avoids the fact that Second Amendment is an individual right, among other individual rights. That said, when Congress passes the “Armed Canadian Militia Act”, I’ll sign up


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