Guns, the Second Amendment and “National Open Carry”

The current debate over gun regulations is in desperate need of honesty.


SAN BERNARDINO, Calif., Jan. 19, 2016 — The debate over gun regulations is in desperate need of honesty. The proposal to nationalize background checks and require them for traveling gun shows and online sales seems reasonable. But if this is all we do, we will only cripple traveling gun shows and online sales as a viable market for firearms. This—crippling these markets—is the real objective of the proposals on the table today.

As an information technology professional, I can attest to the fact that closing this loophole is possible without crippling gun shows and online merchants. Before we get to those specifics, we need to back up and consider how gun regulations cross all major governmental jurisdictions.

Guns, gun laws and the Second Amendment

At the local level, documentation concerning legal gun ownership is usually issued by counties. These documents are issued under authority granted by state legislatures. Boundaries on this authority are set at the national level. Those national boundaries are governed by the Constitution.

The Second Amendment guarantees the right to keep and bear arms. Without getting into the history of the Second Amendment, note that this is a right, not a privilege.

But so is freedom of speech. We all understand that “freedom of speech” does not mean you can yell “fire” in a crowded theater.

The courts have long allowed for restrictions on constitutional liberties, but have applied a “three-prong test”:

  • The government—at all levels—must show that a restriction on constitutional liberties furthers a “compelling governmental interest.”
  • The restriction must be the “least restrictive means” of furthering that interest.
  • The restriction cannot place an “undue burden” on the exercise of the liberty in question.

This is a long-standing, mature legal standard for applying common sense to constitutional liberties.

Second Amendment civil liberties considered on Martin Luther King Day

I am running for Congress in California’s 52nd Congressional District, partly on a platform to guarantee the right to “open carry” for those who lawfully own guns. My proposal would explicitly apply this “three-prong test” to any state or local restrictions on “open carry.” At the very least this would prohibit states like California from categorically outlawing open carry.

It would also allow targets of violent criminal attacks to defend themselves long enough for authorities to arrive.

But, as with the prohibition on yelling “fire” in a crowded theater, my proposal would allow restrictions. The first test is not hard to pass. There is clearly a “compelling governmental interest” in restricting access to guns. It is the second part of the test, the “least restrictive means,” where the debate lies.

Under my “national open carry” proposal, state and local governments would be able to restrict open carry in places like schools, parks and libraries. Most states have laws on the books against “brandishing” a weapon and requiring compliance with a peace officer’s lawful orders. States could rescind open carry permission in the event a gun owner is convicted of either misdemeanor brandishing—guns are not public “show and tell” pieces—or misdemeanor failure to comply.

This second restriction is especially important as “open carry” in some states, like California, would initially cause a spike in calls to police about armed persons in public. Upon contact, it is essential the gun owner complies fully with a peace officer’s lawful orders.

Second Amendment civil liberties considered on Martin Luther King Day

A national open-carry statute would allow for restrictions such as these, but would place the burden on the states and local governments to establish that their restrictions pass the three-prong test. This would allow rural and urban populations to have restrictions consistent with their circumstances, yet guarantee the individual the right to challenge them in court.

There are proposals to turn the TSA’s “no fly” list into a “no-buy” list and to extend background checks to gun shows and online merchants. As an information technology professional, I can attest to the existence of “standards” by which information systems share data. An example of how these two things can be brought together can be found in the Aurora, Colorado, theater shooting.

The shooter had previously told his therapist about his desire to commit a mass shooting. The therapist reported this to police in accordance with Colorado law. If Colorado had had its own state no-buy list and had required that people reported to police by a therapist as at risk of harming themselves or others be put on that list for a minimum of 90 days, the Colorado shooting could have been prevented.

The federal government comes into this picture by establishing an information standard for sharing these no-buy lists. Unlike Health and Human Services, the FBI actually has a very strong and competent information technology team.

My proposal will direct the FBI to establish a national standard for sharing no-buy list data. Each state would be responsible for establishing its own no-buy list and would set its own rules for adding people to the list. With each list developed to the common FBI standard, it would be easy for traveling gun shows and online merchants to develop systems to let them screen customers against all state lists. The Transportation Security Administration could also open its no-fly list to these queries by applying the same standard.

The incumbent in the 52nd District has read from the floor of the House the names of people killed in mass shootings. Each of those people had something in common: They were defenseless in the brief time between the start of the attack and the arrival of police. It is time for honesty in the debate over guns. Current proposals will only cripple the traveling gun shows and online merchants, and will do nothing to make us safer.

National open carry and a national information standard for no-buy list data sharing will allow us to defend ourselves, our co-workers and our neighbors and keep guns out of the hands of those who should not have them.

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