Undue Burdens

Let’s stipulate a few things: One, the Second Amendment to the US Constitution has been interpreted by the US Supreme Court as protecting an individual’s right to own firearms. Two, guns are, first and foremost, instruments of destruction. Three, the Court has ruled in the past that other constitutional rights are subject to regulation when there is a compelling government interest — I.e., that the regulation is necessary to protect the health, safety or rights of others.

A woman’s right to choose, for instance, is not limitless and the state can subject it to rules provided those rules do not impose an undue burden on women. The right to speech does not extend to lies or speech that creates an imminent physical threat.

We can debate these regulations, but most people agree that it’s appropriate to impose some limits on our rights when there is a chance that another’s rights might be infringed upon by our exercise of our rights.

Except when it comes to guns. Firearms, for some reason, have been exempted from this paradigm, at least among many gun rights advocates. How else to explain the National Rifle Association’s opposition to limits on purchase of military grade weapons, or even to background checks.

My sense is that the gun debate has gone off the rails because it has focused on absolutes on one side, while the other side ignores the concerns of gun owners and sportsmen. Gun rights advocates equate all action with confiscation of firearms, while gun control advocates too often fall into stereotyping gun owners as an army of Ted Nugents.

I think we need to reframe this debate as one of regulation, which would require acknowledgement on one side that the government — as the representative of all Americans — has a compelling interest to manage access to firearms to help ensure everyone’s safety. One the other side, it would require gun control advocates to accept that gun ownership is a right and that gun laws need to avoid placing an undue burden on gun owners and prospective gun owners.

What might that mean? We should acknowledge, first, not only that we have the right to draw some lines when it comes to what weapons should be available to the general public, but that we already do so. RPGs, machine guns and bazookas are heavily regulated (the NRA opposes these regulations), explosive devices are banned, and so on. The issue is not whether but where to draw the line, and we have a standard we can follow: Does this line impose an undue burden on the rights of gun owners? Is there a compelling government interest in drawing the line here?

Second, why not treat access to guns the same way we treat driving privileges or land use? We should require the reporting of all firearms transfers, license all firearms, and require background checks for licensing. I’d go a step farther and require safety training, testing, and liability insurance for anyone who wants to own a gun. We don’t hand guns to police, federal agents or soldiers and say have at it. We require them to be certified, to practice and pass tests before we entrust them with their weapons.

Guns would still be available to those who want them, but the broader polity would gain some protections.

None is perfect — anyone who thinks we can eliminate gun violence completely is fooling themselves, just as anyone who thinks that gun-control measures will do nothing is either lying or deluding themselves. But that doesn’t mean we shouldn’t try.

It is time both sides step back from their hardened stances and let the conversations happen.

Hank Kalet is a poet and journalist in New Jersey. Email; blog,; Twitter, @newspoet41 and @kaletjournalism;; Instagram, @kaletwrites.

From The Progressive Populist, August 1, 2016

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