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Moving gun regulation to the states from the federal level


(Warning: An explosive topic. Those who only want to talk robocars, you can subscribe to only that feed if you wish to!)

Every mass shooting triggers more gun regulation debate. Coming from Canada, I know that gun control, particularly of handguns, in place for several decades, can result in a less violent society, and much less gun violent one, with much less suicide. But Canada does not have the 2nd amendment, and frankly that amendment makes most proposals for gun regulation a non-starter. Sure, there's lots of argument about what the well-regulated militia clause means, but on the whole the existence of the 2nd amendment makes most proposals wishful thinking.

Politically, repeal or reduction of the 2nd amendment seems very unlikely. So I came up with a proposal that, while also pretty unlikely, has just the ghost of a chance.

The proposal is to distribute the control of gun rights to the states, rather than mandating it at the federal level. This would mean that states who wished to, could write their own version of the 2nd amendment, making it more protective, as might be the case in gun-rights states, or weaker, as might be the case in the "blue" states.

This has the slight potential of success because it is a trade. States and members of congress who would never approve a reduction of the 2nd amendment might take a deal of the form, "You gun-hating liberals keep your hands off our guns in our states and you can do what you want in your states." Maybe.

The rule, would say:

A state may elect to amend its constitution to substitute its own rule regarding the right of the people to keep and bear arms within that state, superseding the 2nd amendment of the constitution of the United States therein.

A state which did nothing would retain the 2nd amendment and its jurisprudence. A state could also make a new rule removing the militia clause or assuring the right even to machine guns if it wished. And a state could make a rule allowing it to enact gun control similar to the UK or Canada.

The federal government would still control interstate commerce in arms, subject to the existing 2nd amendment which would not change in its application to federal law. It is possible one could also argue a right of the federal government on any weapon which can fire outside the state (rockets, etc.)

Would this work? In spite of the 2nd amendment, there is actually quite a bit of gun regulation in place in many states. Of course, these are all rules that managed to survive 2nd amendment scrutiny and which use approaches agreed to even by the gun rights advocates in their states. So it may be that offering a way out of them is not much of an offer. Only time would tell.

Of course, any time this topic comes up, the debate is often taken over by debate on guns or whether gun control is a good or bad idea, and this debate gets ugly. I want to avoid that, and focus only on the question of whether it makes sense as a state right instead of a federal one. This will bring up the question of how well gun regulation can work in one state if anybody can travel to a low-regulation state and purchase weapons and bring them back (illegally or legally.) States don't have borders with customs the way the USA and Canada have. However, if the purpose of gun regulation is not to imagine it can keep guns out of the hands of criminals, but rather just to lower overall gun density, this can be workable.


The 2nd Amendment doesn't effectively prevent states from regulating firearms. Allowing states to supersede the 2nd Amendment would require another Constitutional amendment, which seems unlikely to ever happen again for any reason.

The 2nd amendment certainly applies to the states. Right now, must gun regulation involves finding regulations the courts will agree are consistent with the 2nd. But regulation such as is seen in Canada, the UK or other nations is not possible.

I am not sure further amendment is impossible, but it is difficult.

I am one that believes in pushing as many regulations to the state and more local levels. The issues dealt with in Alaska are different that Florida. This does create some problems, as now there are different rules depending on the municipality, so it makes sense to have some national rules, like the ones governing the color of lane lines on a highway, versus some hyper local rules, such as when it is ok to burn leaves on private property. The real hard part is putting an issue on this spectrum, especially if it is politically charged.

Gun control falls right in the middle for me. If I want to hunt moose in Maine, or giant bears in Alaska with a high powered rifle, at 14, I think those states should be permitted to make rules for gun ownership around that. On the other hand, in many cases, if you just drive an hour or two you likely be in another state, and I can see where loose rules in one state can affect another. This is a problem with fireworks in my area.

Your proposal has merit, but as you stated, runs into the same problem as any proposed modification to the 2nd amendment. You would first have to write your rule into the Constitution, then get it ratified. I just don't see a way to get something like this to pass that hurtle.

The only amendment you might get is one like this -- a trade. You give the gun rights advocates more gun rights in those states and they trade off gun rights in the other states. That could cause enough states to ratify as they all think they are getting something. Purists would not ratify -- "I will not sacrifice the gun rights of my brothers in California so I can have more in Utah."

Probably the best thing that could come out of such a devolution of power is that some states will simply be more violent than others. (Will it be the states with fewer guns, and thus less ability to defend that are more violent, or the ones with more guns...? I dunno). But, we'd have lots of data, if the CDC was allowed to collect data. Insurance companies might want to know. High tech recruiters might want to know. There would also be the concern that guns could flow from one state to another (NJ/NY/PA/CT come to mind).
It would be fabulous to find a way to do this experiment. Never mind that it's already been done among the commonwealth: our data does not count.

How would you reconcile with this 538 study?

The study found a fairly modest correlation (but not zero) between gun trade and strictness of gun laws, but even if it found a strong one, that would only apply to guns used in planned crimes. A large fraction of the gun control debate relates to unplanned, accidental or suicidal shootings. I mean the public horror is always over the big criminal shootings like Las Vegas, but they are a very tiny fraction of gun deaths.

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