The Frary Files: Rational gun control debate requires a more detached examination


Fingers.gunBy Prof. John Frary

“It’s time to talk about gun control.” This was the title of a Washington Post editorial published on December 14. The editors acknowledge objections to exploiting tragedies for political purposes, but argue that there has been too little said or done on the issue and the time has come. The time has come because “… the country would be safer with fewer guns … that it is not the Second Amendment but political cowardice that precludes sensible regulation.”

Talk, of course, has been flowing fast and furious (lots of furious) across the nation. In Maine Ethan Strimling, a senator from 2002 to 2008 whose gun regulation bills were routinely thwarted, proposes a petition drive to “force the legislature’s hand.” The presidents of Bates, Bowdoin, Colby, St. Joseph’s, UNE and College of the Atlantic have signed a letter along with more than 160 other college presidents announcing that “it’s time for Americans to live free from the threat of gun violence.”

Portland’s Mayor Brennan has signed an open letter from dozens of American mayors “calling on President Barack Obama and members of the U.S. Congress to pursue sensible gun laws.” The Bangor Daily News published a Dec. 19 column by Professor Robert Klose of UMA calling for a repeal of the Second Amendment. Rep. Chellie Pingree and Seator-elect Angus King say they could support significant changes to the nation’s gun laws. No telling how many letters to the editor the issue will generate.

Rep. Lance Harvell (R-Farmington) agrees that it’s time to talk about gun legislation, but his idea is more orderly and specific. He is working to organize a rational debate at the University of Maine at Farmington. Both of us are pessimistic about the possibility of a rational debate, but we agree about the broad criteria of a rational debate.

First, the Constitutional question require clarification. Prof. Klose’s repeal proposal would resolve that problem, but it’s hopelessly impractical. Article V of the Constitution requires a two-thirds majority in Congress or two thirds of the state legislatures to hold a new constitutional convention. Three fourths of the state legislatures must agree to an amendment. There are only seven states with restrictive gun laws. Do the math.

Interpretation of the 2nd Amendment is open to debate. Prof. Klose accepts the reading, articulated in 1978 and 1988 articles by Harvard’s Lawrence Tribe, that the Amendment is a collective right guaranteed to the state militias, i.e., their National Guards. Presumably he is unaware that Prof. Tribe reversed himself in 2000, having accepted it as guaranteeing an individual right. A quote from a May 2007 article in the New York Times: “My conclusion came as something of a surprise to me, and an unwelcome surprise. I have always supported as a matter of policy very comprehensive gun control.”

Prof. Sanford Levinson at the University of Texas, one of several liberal legal experts who have come around to the individual rights interpretation explained in the same article that the liberal misinterpretations “reflected received wisdom and political preferences rather than a serious consideration of the amendment’s text, history and place in the structure of the Constitution. The standard liberal position is that the Second Amendment is basically just read out of the Constitution.”

Representative Harvell believes that a serious debate must give serious consideration to the Amendment’s text, history and place in the structure of the Constitution; as opposed to repeating the “received wisdom.” Robert Klose, like many others, heard the standard liberal position years ago and embraced because it spoke to his “political preferences.” A rational debate, however, requires a closer and more detached examination.

A rational debate must also thresh out the loud and promiscuous calls to “action” to find what legislation is actually being proposed. Ironically, thousands of Americans, including Mainers, are already taking action. They are buying guns in such numbers that they have imposed an effective waiting period of months as manufacturers and retailers struggle to keep up with demand. This is clearly not what hundreds of politicians, pundits, and professors have in mind when the call for action.

The Washington Post editorial illuminates the confusion about the action-demanders agenda. It calls for “sensible regulation” and fewer guns in the same paragraph, although most of the regulations so far proposed will have little or no effect on the number of guns in private hands.

The “College Presidents for Gun Safety” website specifies reinstatement of the ban on military-style, semi-automatic weapons and an end to a loophole allowing people to buy guns from unlicensed sellers at gun shows without criminal background checks. Nancy talks strangely of banning “assault magazines.” Rupert Murdoch seems to believe Americans can buy automatic weapons in the gun store of their choice. Dianne Feinstein (D-Calif.) is introducing a new assault weapons ban to replace the 1994 ban, which was later rescinded. U.S. Attorney General Eric Holder said in February 2009 that President Obama had “just a few” gun-related changes in mind and, among them, “re-institution of the ban on the sale of assault weapons.”

Questions about the practical effects of the proposed laws and regulations are neglected amidst the current grief and excitement. Rep. Harvell proposes to address part of this confusion by including someone in his debate who actually knows about guns. This would certainly improve the quality of the discussion. People knowledgeable about guns have been having great fun with the hopelessly muddled definitions in he 1994 law.

The neo-conservative pundit Charles Krauthammer, who has no problem in principle with gun control and supported the 1994 “assault weapon” ban, points out that it didn’t work “because it’s almost impossible to craft a law that will be effective.” The new law Sen. Feinstein proposes exempts 900 weapons. It would grandfather existing weapons and magazines. Since there were 1.5 million “assault weapons” and 25 million large-capacity magazines in circulation in 1994—and more now—its practical results would be negligible.

Even if we could design an effective law for banning these rifles, there would be little benefit to public safety. The FBI figures for 2010 show 358 rifle murders and 745 by “hands, fists, and feet.” Banning hand guns would be vastly more effective. In 2010 they were the weapons used in over 6,000 murders, but see the figure for hand gun ownership in the next paragraph.

Hopes for the effectiveness of plugging the “gun-show loophole” run into the widely accepted statistic that there are 300 million guns, including 100 million handguns, owned by American civilians. Nobody knows how much trading in guns is carried on outside of retail outfits and gun shows, but from my personal knowledge I would guess a lot. And how much trading would switch from the gun-show floor to private places—100%, 99%, 98%?

A practical analysis of any programs for stamping out the “American gun culture” or taking millions of guns out of private hands (some of them presumably cold and dead) should include realistic estimates of the number of arrests and gunfights we can expect. That daunting 300 million is often cited as evidence of the urgent need for national disarmament. It must also be recognized as presenting an enforcement problem ,which would require a huge increase in the exercise of police power.

These are some of the elements Lance Harvell would like to see included in an orderly, rational gun control debate.

Professor John Frary of Farmington, Maine is a former US Congress candidate and retired history professor, a Board Member of Maine Taxpayers United and an associate editor of the International Military Encyclopedia, and can be reached


  1. Please add to your discussion list a consideration of what sorts of ammunition and ammunition clips should be sold. While surely we can’t stop all gun violence, this could certainly have an impact on mass killings.

  2. Ms. Fried, Please consider my reply to Mr. Johnson posted a few minutes ago. The same argument applies to elements of a weapon system as it does to the weapon. The problem does not lie in the weapon, or weapon system, as evidenced by the knife-wielding man who entered a Chinese scholl on the same day as Sandy Hook and killed or injured 22 children. More of such examples could be given. It seems to me the problem is far more profound than the choice of weapon a determined killer uses. I suspect you have heard by now about the most devastating assault upon school children in 1927 in which the attacker used explosives to kill 38 children, 6 adults and injure 58 others. The problem is the determined killer. Such folks acts are random in that they cannot be predicted with sufficient certainty to impose restrictions upon the law abinding in a free society.

    While we are gravely offended by the violence inflicted upon the victims at Sandy Hook, don’t overlook the FBI statistics quoted by Prof. Frary that twice as many people were beaten to death by ‘hands, feet, and fists’ than were murdered by rifles. The problem is the determined killer.


    Gary L. Sudeth

  3. How can you have an impact that is anything other than emotional ??? The shooter in this recent killing didn’t stop because he was short on bullets. He didnt stop because the police made him. He stopped because he was done. A person could kill a while room full of people in seconds regardless of a ban on assault rifles and large magazines. One could carry 4 pistols and kill 20-40 people. Limiting guns and ammunition results in only making people feel better. It does not keep bad things from happening to good people. More people are killed by hands and feet than rifles in the USA.

  4. A call for rational debate is always laudable, but this seems to be a rather one-sided call to arms.

    Firearms, in and of themselves, are clearly not responsible for our nation’s stature as the most violent culture in the industrialized world. Nevertheless, to continue to ignore the role that comprehensive (and rationally related) regulation can play in reducing violent crime, accidental death and injury and domestic homicide is bad public policy.

    Nor do allusions to Charlton Heston’s infamous display of manly rhetoric bring any rationality to the rational round-table being proposed.

    As for the Second Amendment, that part or the conversation is, at best, an over blown smoke screen laid down by folks who what to shut down the discussion of gun control, not engage in it.

    The truly rational discussion will only begin when everyone at the table begins by acknowledging that America has a serious problem and that improving the regulation of weaponry (both firearms and ammunition) in the hands of private citizens is one part of it.

  5. Mr. Johnson, Prof. Frary’s reference to Prof. Levinson’s comments have apparently been overlooked in that the premise of your argument reflects what Levinson called liberal’s “received wisdom”. Your argument reflects an emotional bias rather than an objective, open approach to a problem. That is, as you have defined the solution – your solution – in posing the question. Please read the May 6, 2007 NYT’s article from which Prof. Levinson’s comments were taken.

  6. For people who have a religious faith that guns are evil, and their only use is for evil, limiting the number of shots in an ammunition feeding device would make sense. Were they able to look at guns as having a defensive purpose, limiting magazine capacity makes no sense at all. Who can predict, in a scenario like the Rodney King riots, exactly how many shots are necessary? When 3 police officers shot Vince Berube in the Lewiston Police parking lot several years ago, they popped around 60 shots at him, striking him with 19 if memory serves.. [Vince lived.] Should they have been limited to 10 shots?

  7. I don’t understand the charge that the suggested criteria for a debate are “one-sided.”.

    Is this a denial that the Bill of Rights is irrelevant to the question, a mere bump in the road?
    Is it a bad idea to include input from someone who knows something about guns?
    Is it one-sided to examine the metrics and past history of the gun-control measures so far proposed?
    Is it unreasonable to separate calls for “sensible regulations” from calls to reduce gun ownership? Reasonable to ignore the practical problems with the reduction aspiration?

    Mr. Johnson is free to suggest any criteria which he believes would correct the putative imbalance.

  8. Your suggestion, Prof. Fried, is subsumed in the proposal to examine the practical effects of the regulations proposed. I see no reason to exclude ammunition regulation.

  9. A reasonable discussion is alway an advantage to any public policy discussion; however, Professor Frary’s article is far from an invitation to a reasoned discussion.

    It’s appeal is to the general readership of Maine Wire. The use of al illustrative “Liberal” who has seen the light and changed is mind about the question of firearms and the advisability of control in America is a clear message that this isn’t a call for coming together on an issue that has legitimate differing positions – it’s an advocacy piece designed to push the agenda of the Maine Heritage Policy Center.

    Please invite me to your forum, Professor, perhaps I may offer some reasoned commentary to the discussion.

  10. Mr. Johnson, I will pass your offer on to Rep. Harvell, along with your intimation that I’m not qualified to participate owing to my affiliation with the MHPC villains. I’ve challenged you to identify which or my criteria you disallow as one-sided and what criteria you wish to add. I await your response.

  11. Were I crafting a comprehensive policy for Governor LePage, it would have the following elements:

    >The ability, as o.k’d by the courts to periodically sweep public spaces of all dangerous unlicensed weapons. Wether the carts of the homeless, the backpacks of kids or the cars of gang bangers; police and security people should be able to check them for dangeyeshua1984@gmail.comrous weapons.

    >As long as the public spaces are kept clean & secure, homes can be kept secure with defensive weapons; but the second those weapons are moved into public spaces they are subject to public policy and strict regulation.

    > Schools should be kept weapon-free and the best ways are to periodically inspect back packs and even body searches; as well as lockers which would be relocated into a secure public space. No need for FT security guards just random shakedowns.

    >Kids should be trained on how to react to mass violence and schools should provide escape hatches. Kids must be able to escape harm.

    >Mental health screening to identify violent children must start in HeadStart and the beginning of every school year.

    >Hollywood clebrities, tv show producers, video game makers, and movie makers who profit from violence must be held accountable even if it means a return to censorship.

  12. Frank Heller proposes a reasonable expansion to the proposed debate, one which Rep. Harvell and I had no discussed. i.e., consideration of measures which might help prevent recurrent tragedies.

  13. Hi!

    Rather than gun control how about examinging the role of psychiatrist medications and its effects on some individuals who shoot others? Dr Peter Breggin, an honest psychiatrist, has conducted some research regarding this issue.

  14. Having been involved in setting up hundreds of HEADSTART programs, I’d suggest you find a State expert on the types of screening and habilitation of violent pre-schoolers, using meds or other forms of instilling ‘civil’ behavior.

    I’d also suggest digging a bit deeper into the nexus between Aspberger’s syndrome and sudden violent outbursts since there is a body of literature which documents the connection and when it can be expected to occur. There is a ‘rumor’ flying around the blogosphere that Lanza’s mother was going to institutionalize him and he lost control and murdered her over it,setting off his rampage. I’m guessing here, but eventually facts will emerge.

    Involuntary disarmament of people entering the school, despite objections from the ACLU crowd, can be put into the context of an extension of IN LOCO PARENTIS doctrine.

  15. The federal govt. is once again collecting the names of people judged mentally unstable–whatever that means.

    I’m guessing this will extend into school files on students w/IEP’s for behavior control issues. That will be quite a shock for Maine, esp. those schools with a lot of them and a growing list of expulsions and suspensions.


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