Jonathan P. Baird

When I lived in Alaska in 2011, I read about the legislative decision to allow guns in the New Hampshire State House. The supporters of that idea described the Legislature as a target-rich environment. They have said disarming legislators turns the Legislature into a kill zone. One former legislator wrote to the Monitor recently that without guns, legislators were sitting ducks.

The fantasy seems to be that someone in the House gallery will open up on the House floor, shooting down and picking off targeted representatives. If legislators were carrying weapons, they would theoretically be able to shoot back and dispatch any attacker. Or maybe the thinking is that just the fact of carrying a weapon would act as a deterrent for any would-be shooter in the gallery.

As someone who worked in and around the Legislature from the late 1990s to 2010, I have to wonder about the paranoia behind such views. I never felt the area around the State House was unsafe or any kind of danger zone. In Concord, we are not talking violent inner city neighborhood or even scary dark alley. Concord is downright safe.

To the best of my knowledge, in the 200-plus years of the New Hampshire Legislature, there has never been a shooting, stabbing or any act of life-threatening violence directed against any legislator in or nearby the State House or the Legislative Office Building. Civility has been the general rule.

So why the fear of being shot while doing the people’s business as a legislator?

I suspect it is at least partly due to events like Newtown, Conn., and Aurora, Colo. Such events shake faith in the normalcy of institutional life. You never know what might happen, even if a legislator has a greater statistical chance of being struck by lightning than being shot on the job. There is always the infinitesimal chance something could happen.The subject of guns provokes so much passion and so many inflammatory reactions that, unfortunately, historical perspective is lost. The history of guns in America is surprising. However one interprets the Second Amendment to the federal Constitution, history shows that regulation of guns has always gone along with gun rights. Guns have been regulated since the start of our country and the founding fathers balanced gun owners’ rights with public safety needs.

In his writings, including his book Gunfight: The Battle Over the Right to Bear Arms, UCLA constitutional law professor Adam Winkler has stated, “The found

ing fathers instituted gun control laws so intrusive that no self-respecting member of the NRA board of directors would support them.” Winkler showed that laws banning the carrying of concealed weapons were passed in Kentucky and Louisiana in 1813; in Indiana in 1820; in Tennessee and Virginia in 1838; in Alabama in 1839 and in Ohio in 1859.

Winkler describes the old Wild West as not so wild when it came to guns. He says that frontier towns usually barred anyone but law enforcement from carrying guns in public. Typically, in frontier towns, gun owners had to check guns at stables on the outskirts of town or drop them off with the sheriff. In exchange, the gun owner received a metal token so they could retrieve their guns when leaving.

It turns out that the famous shoot out at the O.K. Corral in Tombstone Arizona was about gun control. There was an ordinance in Tombstone prohibiting the carrying of deadly weapons. When Wyatt Earp confronted Tom McLaury, it was because McLaury had violated the town’s law about checking his gun. McLaury had failed to leave his gun at the sheriff’s office.

Winkler also shows how the National Rifle Association, up until the 1970s used to be quite a moderate organization. Founded as a hunting and sporting association in 1871, the NRA supported many gun control measures, including the 1934 National Firearms Act and the 1968 Gun Control Act. It was not until the 1970s that the NRA ever started advancing the argument that the Second Amendment guaranteed an individual right to carry a gun rather than the people’s right to form armed militias to provide for common defense.

I do think the hysterical overreaction to President Obama’s gun control proposals reflects a lack of historical awareness. Whatever one thinks about his executive actions and his proposed legislation, the response that his proposals are tyrannical or that he is acting like a monarch are pure hyperbole. Obama is clearly within his constitutional authority to issue executive orders. As Winkler notes, presidents dating back to George Washington have issued executive orders. Opposition to mandatory background checks, an assault weapons ban, and a high-capacity magazine ban is political. One can argue about how effective the proposals will be but the proposals are almost certainly constitutional.

No constitutional amendment, including the Second, is beyond regulation. That has been well-established. Consider laws that keep guns away from convicted felons and the mentally ill. Obama’s proposals are no different.

All the talk about tyranny and impeachment is sour grapes from people who were unhappy with election results. There is an irrationality seeing modest gun control proposals as some executive branch power grab.

As for the New Hampshire Legislature, guns have no place in the State House, any more than they do in a courtroom. Would anybody seriously think about arming litigants engaged in a courtroom battle? Why is the Legislature any different? People with passionately held views debate and argue. Adding guns to a potentially volatile mix hardly seems wise. Guns add an element of intimidation and bullying.

As a judge, I am thankful for metal detectors and security guards. The New Hampshire Legislature has no metal detector screening, although most state capitols do. Maybe that is something to consider in New Hampshire, although it is a departure. It could help address the apparent insecurity some legislators feel.

I have a hard time with legislators who make a big deal out of possessing guns in the State House, like that is some accomplishment. That is more like grandstanding and macho posturing. It is not doing something for constituents. Legislators should focus on the needs of the people – not guns on their person.

(Jonathan P. Baird of Wilmot is a federal administrative law judge. This column reflects only his views, not those of his employer, the Social Security Administration.)