Moderate gun control is all we can hope for

Let me begin with a bold assumption: If the thunderous voice of God himself, clothed in smoke and fire from atop Mount Sinai, commanding “thou shalt do no murder,” is not enough to stay the hand of human evil, then a law passed by the United States Congress isn’t going to do the trick.

Obscenities such as the school shooting at Newtown, Conn., or the ambush of volunteer firefighters in New York state shock the conscience and sear the nation with pain. This is followed shortly by calls to “ban assault weapons,” to outlaw high-capacity ammunition magazines or to question why civilians even need such armament.

Let’s briefly review why that’s legally problematic.

The Second Amendment says “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.” In the 1939 Supreme Court case of U.S. v. Miller, the court concluded the “militia” is comprised of “all males physically capable of acting in concert for the common defense.” Arms are defined as ordinary military equipment, the use of which can contribute to the common defense. Moreover, in two very recent decisions – District of Columbia v. Heller and McDonald v. Chicago – a personal right to firearms ownership was recognized by the court and applied to the several states.

It is certainly still possible to ban military-style rifles or high-capacity magazines, but to do it with certainty, you’d need to amend the Bill of Rights. Passing a law through the regular order of Congress could go either way. Such a law might be upheld; in the Miller case, a short-barreled shotgun restriction was upheld after the justices ruled (incorrectly, as it turns out) that such a weapon was not in common military use at the time. But if the law is struck down, gun rights could be further cemented into the law.

And, quite frankly, such a law would make it only marginally more difficult for criminals or crazy people to lay their hands on an assault weapon.

That’s not to say we can do nothing, however. There are intermediate steps that would not offend the Constitution and that might even garner the support of groups such as the National Rifle Association, which is heard often to call for enforcing existing law.

Consider a law that said every firearm sold in the United States requires a background check for the buyer. That’s every sale, of every firearm, whether it takes place in a gun store, at a gun show or even between private parties. If a firearm is bought, sold or transferred, a background check is required.

Second, the national database against which the names of would-be gun owners is checked must be upgraded for accuracy. A legal and uniform way must be found for people adjudicated mentally incompetent to be included – from every state. In order to preserve health privacy, an inquiry into to the gun-check database would return a simple “yes” or “no,” and no reason for denial will be given at the point of purchase.

Third, it will be illegal not only to sell or transfer a firearm to a person on the prohibited list, it will also be illegal to purchase a weapon on behalf of such a person.

Fourth, violations will incur harsh mandatory minimum sentences.

Such a law would – as I said about a total ban on assault weapons – make it only marginally more difficult for criminals to obtain weapons.

The sad reality is, we can protect against evil, but we cannot totally prevent it. Whether it’s religious zealots flying airplanes into skyscrapers or madmen shooting up classrooms in Stockton, Colorado, Virginia Tech or Newtown, nothing we do can completely ensure the safety of innocents. Not more armed guards, not armed teachers – not even the voice of God himself, it seems.

Steve Sebelius is a Review-Journal political columnist, and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or ssebelius@reviewjournal.com.