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PROBLEMS AND SOLUTIONS UNIQUE TO LAW ENFORCEMENT

Part IX

PROBLEMS AND SOLUTIONS UNIQUE TO LAW ENFORCEMENT

I Pledge Allegiance

I, me personally, promise as an oath of loyalty, duty, devotion

to the Flag of the United States of America,

The symbol and the representation of the United States of America,

and to the Republic

A nation that lives by the rule of law

for which it Stands,

That which the Flag represents,

One Nation Under God,

United as a single people under a supreme being.

Indivisible,

Facing all enemies, we stand back-to-back, shoulder-to-shoulder, rich-to-poor, liberal-to-conservative,

With Liberty and Justice for All.

Freedom, sovereignty, equality, fairness and truth, all on the shoulders of our law enforcement officers. (1)

Preface

Escalating violent crime has been blamed on factors such as …

– Perceptions of police restraint during and after racial-justice protests

– Initiatives to release criminal arrestees without bail

– Reduction of undercover law enforcement infiltration of gang-violence programs

– Reduced in-person church services

– Financial and medical stress

– Illegal (and legal) addictive drug usage

– And, of course, an inability to keep guns out of the hands of those who shouldn’t have them

Cops would most likely be more comfortable if no one had access to firearms except themselves, while many citizens might favor everyone packing heat as in the old adage: An armed society is a polite society (2). Because America is so sharply and evenly politically divided and because it has been more than 60 years since the last Constitutional amendment was passed, passage of a new amendment would be difficult without unity on this, the most contentious of issues.

For the pro-gun citizenry, it centers on the fear of the slippery slope ultimately leading to registration that results in confiscation. Anti-gunners would be happy if the Second Amendment (3) was repealed. Police want to be able to not only identify the owner of a firearm, but don’t want to face armed criminals while at the same time need assurances that they and their family members will be able access firearms upon retirement. States center on money, i.e., funds raised from licenses and procedures.

Crimes committed against persons — especially police officers — has intensified to disturbing levels and virtually nothing, save band-aid approaches, has been done to appease any of the camps. Following many shootings, the cycle has been for politicians to pass meaningless legislation while the courts tend to nullify challenges to the Second Amendment. Perhaps it’s time for a different approach.

“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” (4)

History

The Second Amendment to the U.S. Constitution can be viewed by some as being ambiguous — unclear due to generalization, ongoing legislative and court rulings as to who can own and bear arms and which arms are allowable. To some citizens it is certain — this amendment should be taken literally. Others read it thinking it should be applied to present times given the subjectivity and interpretation. There are four factors that define firearm ownership in America — individual rights, citizenship, others’ rights, and wrongs.

Individual Rights

There are only two kinds of individual rights: Conditional and unconditional. The right to free speech is conditional inasmuch as the condition, public safety, trumps the First Amendment, such as yelling fire in a crowded theater when there is no fire.

Even the right to life is conditional. State/federal governments can take the life of a person who commits certain crimes and, of course, one’s right to life is conditioned when trying to take the life of another who is exercising their right to preserving his or her own life. Because the meaning of the wording of the Second Amendment, “The right of the people to keep and bear arms shall not be infringed” (5) has been found to be a conditional right, we Americans will always be fighting in the courts for tomorrow’s definition of conditions.

The right to protect oneself and one’s family is unconditional — there are no restrictions or conditions — it is absolute, fundamental and inalienable. This is not to be confused with the ability to self-protect, i.e., the right to possess, carry or utilize a firearm — or any other weapon — to affect this right. Utilizing weapons to protect oneself is not fundamental or unconditional and thus is subject to limited governmental controls and restrictions. And that’s the rub … which government and what type of controls?

The Second Amendment to the U.S. Constitution is not an unconditional or absolute right.

If it were, grade-schoolers would be allowed to pack an Uzi to class and prison inmates would have the Right to Keep and Bear Arms (RKBA).

Citizenship

At the time of the Constitution’s inception the framers, “all men in a man’s world,” clearly gave little thought to anyone other than the man as the defender of family, property or country, whereas in 18th Century England, only the rich were empowered to defend honor and country. A citizen, circa 1785, was considered to be any white American male over the age of 21 and not a felon. The idea of civilian gun controls was unconscionable.

On this side of the Atlantic, it was also inconceivable that a Thomas Jefferson or a James Madison would refuse to take a musket away from a drunk, a child or someone conspicuously deranged. Had one been able to ask these learned, most-sacred-document framers of the conflict of such a restrictive action, they most likely would have replied with words to the effect that the drunk or mental incompetent were, at least temporarily, not citizens. A child, of course, was not a man and a felon had forsaken citizenship.

With the ratification of the 13th, 14th and 19th Amendments, all of-age Americans were recognized as full, ruling-class citizens. Arms possession was, AND STILL IS, the signature of being a citizen, not a subject to some monarchy and most assuredly not — permanently or temporarily — mentally inept, a child, a felon or a substance abuser. This concept of all persons being full citizens and having the right, empowerment and obligation to self-preservation was unique to America.

Others’ Rights

Restricting an individual’s right to bear arms when such restriction violates the rights of others is justifiable provided that the restriction is obedient to the Constitution. Allowing certain persons, such as children, felons or those under the influence of mind-altering chemicals to possess firearms most assuredly creates a substantial risk to others life or liberty. However, restricting the right of a law-abiding, bona fide citizens from owning a firearm — including but not limited to machine guns, assault rifles, or short-barreled long-guns (6) — does not present a substantial risk of damage to anyone.

Constitutional rights are only such when they don’t infringe on the Constitutional rights of others. One’s right to swing his or her fist ends where the other person’s nose begins. Of course, if one keeps his or her fist concealed in his or her pocket he or she is violating no one’s rights. By the same token, if a law-abiding citizen goes about his or her legal business with a firearm concealed in his or her pocket he or she is not infringing on the rights of any other person anymore than the theater-goer who keeps the word “fire” concealed in his or her mouth.

Some citizens might wish to exercise their right to the “pursuit of happiness” by not wanting to be in the presence of guns. On their own property (not accessible to the public), they can do as they please. However, where public property is involved such as courthouses, police stations and government, guns can be restricted by instituting the use of metal detectors and storage boxes that the carrier can store his or her gun until he or she leaves that secure area.

To reiterate, the right to bear arms is a conditional right, but conditional insomuch as restrictive conveyances can only be based on citizenship and the rule of others’ rights. In other words, if one is not precluded from owning a gun and exercising this right does not infringe on anyone else’s right, the bearing any type of arm anywhere they wish is what freedom is all about. (7)

However, the number of firearms involved in lethal force incidents is evidence that this reasoning hasn’t been working to everyone’s advantage. But until the Constitution is amended, things won’t change. The “American ruling class” (aka voters), if they so desire, can alter the definition of citizen, establish restrictions or expand rights — but ONLY by amending the Constitution.

Wrongs

There are only two kinds: Malum In Se is Latin for wrong in and of itself. We don’t need laws telling us it’s wrong to murder, steal or repudiate an oath, whether we have laws against those offenses or not. All other wrongs, from failure to acquire a building permit to bribery, are Malum Prohibitum — Latin for wrong because, we, society says it’s wrong and have labeled specific measures to be against public policy.

Humans, being politicized, opinionated and/or biased, interpret, define, enforce and ignore rights and wrongs, including intrinsic, fundamental and absolute rights even in matters of self-defense. Issues arise when humans project their powers by labeling Malum In Se as Malum Prohibitum … of vice-versa. 

The gun is controllable — a physical property that can be defined and regulated. But in America where the criminal element seems to be able to access them regardless of all the Malum Prohibitum laws, denying law-abiding citizens the right to self-protection with a firearm is Malum In Se.

Solution

One significant problem with guns of any type is the danger to law enforcement officers. It’s also a danger to civilians in schools, shopping malls and homes. It would serve no purpose to reiterate the multitude of proposals previously tendered, ad nauseum, to resolve this issue. Therefore, a new approach might be needed, albeit not one directly doable by law enforcement, but most assuredly needing the support of law enforcement agencies, their unions and the rank and file. This may not be perfect and many may strongly disagree with the basic concept: “The only thing necessary for the triumph of evil is for good men [and women] to do nothing” (8) Well, we, the law enforcement community are good men and women …

Quid Pro Quo

A well-crafted new amendment could capture the unity of both Republicans and Democrats. This suggested Constitutional amendment is intended to clear-up the ambiguities that have so divided the nation and to offer something-for-everyone:

Police: Better knowledge of who has firearms;

State: Licensing fees;

Pro-Gunner: Less restrictions on what can be possessed and where;

Anti-Gunners: Training requirements for those who wish to carry firearms.

PROPOSED AMENDMENT XXVIII: Law Enforcement Armed Citizen Amendment (LEACA)

SECTION I

Any citizen of the United States over the age of 18 has the right to acquire, possess and bear arms and the duty to keep such arms under their control anywhere this instrument has jurisdiction in the following instances:

They are an active duty member of the Armed Forces of the United States and have not been dishonorably discharged from any branch of U.S. military service.

They are not under indictment for, convicted of, under arrest for or in the act of committing a felony or released on bail for any crime of violence.

They are not trafficking in any illegal drug of abuse.

They have not been adjudicated as a chronic alcoholic, drug dependent or mental incompetent.

They are not in protective custody.

They are not consuming an alcoholic beverage and are not under the influence of alcohol or a drug of abuse.

They have been vetted by any American law enforcement agency.

Annotation To Section I

Any person who is a citizen of the United States (an inducement for those living here as foreign aliens) and does not fall under one or more of the disabilities and whose demeanor and criminal history has been scrutinized by a police agency has the right to own and carry guns. Section I constitutionalizes the inherent and intrinsic right to acquire (purchase, lend, borrow — keep under their control) and bear arms. The right extends to any physical location under the political sovereignty of the U.S. Constitution.

Keeping and bearing arms is not only protected, but it carries with it an obligation to be sure these weapons don’t fall into the wrong hands, i.e., prohibited persons. In other words, if a legal owner of arms allows a prohibited person access to his/her arms, that owner of the arms is in violation of this amendment and subject to punishment as covered under Section 8 of this Amendment. The vetting requirement by law enforcement allows for removing weapons from a person who is under arrest or even out on bail for any of the listed crimes. Though law enforcement agencies will be accountable to seeing that all applicants are free of disqualifying disabilities from obtainable records, i.e., legislators will be pressured to make non-public mental health and juvenile records available.

In addition, utilizing law enforcement for this task rather than bureaucrats will garner trust from the public while under this same protocol the vetting and permit duties will require an increase in law enforcement staffing (read, budget). Thus, for all intents and purposes, more police officers will be available to protect society — a win-win for citizens and the police profession overall. This amendment also restricts the possession of firearms by anyone who is in protective custody — such as when a person who has not been adjudicated as mentally unfit but police have taken this person into custody pending such adjudication.

SECTION 2

The bearing of arms is prohibited within an enclosure where notification is made restricting the bearing of arms. Search provisions are operational, safe and convenient. A provision is made to secure and retrieve arms carried to the ingress/egress point of enclosure, private homes excepted.

Annotations To Section 2

Any public or private entity has the option of forbidding the carrying of arms into or onto its enclosure (building, fenced-in area) as long as said entity posts a notice, physically operates a means of detection (metal detector) and provides for the arms carrier to safely and conveniently store/retrieve his/her arms. This way, military bases, court houses, police stations and department stores, schools, etc., that don’t want persons to be armed within their enclosures, must establish a ‘coat check’ for guns and have metal detectors in operation. Yes, these security measures are expensive, but so was establishing the BATF, SS, FBI, TSA … school bus service … Private homes are exempt from these conditions, in other words, one’s home is still his/her castle.

SECTION 3

Arms means any rifled-barreled, breech-loading device weighing less than 15 pounds, unloaded, that is capable of discharging by the action of an explosive or combustible propellant. The projectiles are not greater than .525 inch in diameter, and were manufactured after 1898, or any non-rifled barreled, breech loading device with a bore diameter not greater than .780 inches. The bearing of arms means to carry, either openly or concealed. Keeping arms means ownership or having control of arms.

Annotations To Section 3

Most non-gun and many gun owners would feel uncomfortable with their neighbor hauling around a bazooka or other mega-destructive device. Barrel and stock lengths, rifle/handgun calibers up to .50, shotguns up to 10 ga. and fully automatic arms are not restricted as long as the arm doesn’t weigh more than 15 pounds — empty. This section does not preclude local governments from enacting and enforcing “activity laws” such as pointing firearms (assault) or inducing panic by shooting in crowded public arenas. Antique firearms (those made prior to 1898) are, as they are now, exempt from this amendment.

SECTION 4

Each territory or state of the United States shall license/test persons, not prohibited under Section I of this amendment, who wish to bear concealed arms in public. Fees and complexity of testing for such licensing shall be reciprocal and not exceed that which the licensing state or territory has established for a motor vehicle operator’s license at the time this amendment is ratified.

Annotations To Section 4

Some may object to allowing states to license something one has a constitutional right to do. The state, however, also has rights, such as its need to know who is a citizen — a person entitled to own and carry concealed deadly weapons. Requiring a license to carry concealed arms greatly enhances the likelihood for ratification inasmuch as states might be more inclined to ratify this amendment if they receive income generated from concealed-carry fees.

More importantly, and especially since the terrorist attack of Sept. 11, 2001, anyone wanting to purchase or carry instruments of lethal force should be required to prove (be successfully vetted by law enforcement) they are law-abiding American citizens. Qualifying for and possessing a “permit” card is a mark of citizenship — it is only available to those who are not drunks, mental patients, children or criminals. Establishing just who is and who is not a citizen when it comes to those who are part of America’s First Line of Defense is paramount to a secure country.

Since SECTION I guarantees the right to keep and bear arms, all permits must be on a ‘shall issue’ basis. The tests and the procedure for securing the license cannot be any more complex than what a state requires for its motor vehicle operator’s license, i.e., prove who you are, study a pamphlet and take tests (can’t have those who can’t comprehend use of lethal force laws packing heat). This Section makes reciprocity between states and territories mandatory and does not restrict licensees bearing of unconcealed arms.

SECTION 5

No local, state or federal government employee or agency shall maintain a registry of arms.

Annotations To Section 5

Registration of firearms is forbidden by any government person or government agency. This would not preclude manufacturers and gun dealers from keeping records of the original purchaser in case notification is needed for reasons such as recall or safety notices — as is already the law. This does not prevent voluntary data bases by private organizations such as gun/collector clubs.

SECTION 6

All federal, state and local statutes, laws, court decrees, executive orders and legislative acts that pertain to keeping and bearing arms, except as applied to arms manufacturers and licensed arms dealers in force at the time this amendment is enacted and not in contradiction to the constitution, are void. No future restrictions on keeping and bearing arms except as provided for in this amendment or by amendment to this constitution shall be permitted. 

Annotations To Section 6

This section is to make it clear that this new amendment has superseded all other current or future laws, statutes and executive orders and court rulings — federal, state or local! Arms laws pertaining to gun manufacturers and dealers, on the books at the ratification of this amendment, except those laws that are in conflict with this AMENDMENT, remain in force. There is no need for other controls on firearms as any such would be in violation of this amendment.

SECTION 7

One hundred-eighty days after ratification, this amendment becomes effective and the Second Amendment to the Constitution of the United States is repealed.

Annotations To Section 7

Upon ratification of this, the 28th Amendment, the Second Amendment will be void. The 180-day period is to allow states to prepare their testing procedures and law enforcement to gear up for the vetting process.

SECTION 8

The Congress shall have the power to establish the punishment for violations of this amendment and set procedures and limits for law enforcement vetting.

Annotations To Section 8

Insofar as seriousness of crimes varies, it is best left to the Congress to regulate punishment provisions. The vetting process is up to the Congress to set the limits and procedures.

Summary

Almost since inception, the Second Amendment has been contentious insofar as citizens have differed on who is entitled to own and carry what type of firearm. Local, state, federal laws and court decisions have tried to address this issue only to be appealed, reevaluated and barter again and again. Perhaps, a definitive amendment to the Constitution could finally put the matter to rest. Though crime will always be with us, and firearms in America are ubiquitous, we might best codify — in an amendment to our most sacred document — exactly how ownership, possession and type/category of firearms can be regulated for all concerns.

This proposed 28th Amendment tenders multiple quid pro quos. The right gains access to more types of firearms. The left will find comfort in the requirement of enhanced background checks plus mandated training. The state receives money for licensing. Law enforcement controls the vetting process while securing additional funding and … all citizens will become safer. •

About the Author: Chuck Klein is a former: police officer, licensed Private Investigator (ret.), Level 6 firearms instructor for Tactical Defense Institute (www.tdiohio.com) and current active member of International Association of Law Enforcement Firearms Instructors (IALEFI). He is the author of: “INSTINCT COMBAT SHOOTING, Defensive Handgunning for Police” and “LINES OF DEFENSE, Police Ideology and the Constitution.” His education includes Bachelor of Laws. Information about his writings and email contact is available on his website chuckklein.com

Notes

(1) The American Pledge of Allegiance; annotations by the author.

(2) Robert A. Heinlein, Author (1907-1988) https://www.brainyquote.com/quotes/robert_a_heinlein_100989

(3) The Second Amendment to the U.S. Constitution: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

(4) Supreme Court Justice Louis Brandeis, 1927.

(5) Ibid. The Second Amendment.

(6) Constitutional Amendment: Only a constitutional amendment can limit the type, style or function of a firearm that can legally be possessed.

(7) Ibid. Constitutional Amendment.

(8) Edmund Burke, Member of Parliament (1729-1797)  https://www.goodreads.com/author/quotes/17142.Edmund_Burke

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