March has marched in like a lion. Our shameful president is busily destroying America’s institutions. House and Senate Republicans continue to negligently ride a tiger of their own making. The NRA owns our elections even more than Russia. America’s international reputation for leadership and stability is in the toilet. Without adults in charge, there’ll be faint-hearted fun for all, particularly with NRA generosity to politicians (reportedly $50 million to President Trump alone).
This post is about gun control and lack of it. I’ll avoid the appalling statistics that paint a picture of a country awash in guns; you’ve seen those statistics already. I’ll avoid, largely, the frequent paranoid assertions that freedom is to be measured by how many and how expansive one’s firearms are. But I will dwell on the assumption that, due to the Supreme Court’s most recent interpretation of the Second Amendment, virtually any gun control embodies a violation of Americans’ Constitutional gun rights.
It is no secret that Congress (as well as state legislatures, though I will ignore them here) is impotent in the face of America’s tolerance for gun death, relieved only sporadically with hand-wringing and the ubiquitous “thoughts and prayers.” To be so powerful in economics and military power, yet so incompetent in governance boggles the mind. Before moving on with my message, let me say I think there’s nothing per se wrong with guns, liking guns, or choosing guns as a hobby. Insisting there’s something evil about either guns or gun owners is unfair and often disrespectful. That said, let me start with comments on our misleading language about gun rights.
Candidate Roy Moore declared that Candidate Doug Jones (that’s now Senator Jones) couldn’t be “trusted to support Alabamians’ Second Amendment rights.” Mr. Trump says he is a bigger 2nd Amendment supporter than anyone in the universe. The NRA’s Institute for Legislative Action declares that it “preserves the right of all [to] possess and use firearms . . . as guaranteed by the Second Amendment.” Adding confusion, these and many such statements every day pretend those words actually mean something! You see, no one’s 2nd Amendment rights are being threatened. There is no more need to “support” the 2nd Amendment than any other provision of the Constitution. When you hear or use these words, you can be pretty sure a game is being played.
What, exactly, are 2nd Amendment rights anyway? Just this: “The right of the people to keep and bear Arms, shall not be infringed.” Well, not just that. In 2008 the Supreme Court (in District of Columbia v. Heller) ruled that the provision applies to individuals (not just state militias as it might seem from the wording) and explained a bit more of its meaning. (We already knew it didn’t mean howitzers and surface-to-air missiles.) The Court’s interpretation clarified a bit which individuals, which rights, and which arms, thereby establishing a “floor” under individual’s rights to “keep and bear Arms.” It is permissible for laws to impose whatever gun restrictions state or federal lawmakers want, as long as these minimum rights are protected. As expressed in the decision, rights guaranteed are “not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
A flavor of those minimum rights can be seen in this language from Heller: “The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s [United States v. Miller, 307 U. S. 174] holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
Given wording like that, it would seem a stretch to claim the Constitutional floor for rights to bear arms would include today’s armory of automatic, large magazine weapons in the hands of youth, unbalanced persons, and felons in places like airports and schools, or any one of those elements taken alone. When people speak, then, of “being for,” “supporting,” or “fighting against the loss of” their 2nd Amendment rights, you can be sure they don’t really mean those words (for the 2nd Amendment rights are not under threat). The only meaning must be that they fear lawmakers might not grant them rights beyond those already guaranteed, that is, that they will not get what they want.
Insofar as the floor is set or implied by the Court’s decision, lawmakers would have authority to expand those rights to include guns for children, guns with awesome firepower, or guns in the hands of violent persons. But those would not be Constitutional rights and could be revoked at any time. More importantly, their not being Constitutional rights robs them of the gravity that otherwise imbues the argument of those wishing to expand gun rights. That is, the matter of whether persons may or may not own AK and AR weapons and whether they must pass background checks are not of the magnitude or seriousness of Constitutionality, but merely on a par with regular laws, high and mighty gun lobby protestations notwithstanding, unaffected by false claims of having anything to do with threatening Constitutional rights.
Unless there is a serious flaw in either my legal or common sense reasoning, there is no Constitutional right to have an AK47 or any other specific weapon. There is no Constitutional right to have oversize magazines. There is no Constitutional right to have access to guns in the absence of background checks. There is no Constitutional right to have access to guns by domestic abusers.
That being the case, the fact that about 70% of Americans are opposed to our current, legislatively determined (as opposed to Constitutionally mandated) gun access would seem to call for elected officials at state and federal levels to act decisively to curtail gun violence or be voted out of office. And their calculus in establishing that public policy would be a travesty of democracy if achieved by negotiation with the NRA.
Legislative action on this matter should be informed by actual data, the kind that scientific research is custom-made to produce. I don’t mean that science can tell us which guns people should have, but what the facts are about guns and different treatment of gun rights. For example, the accepted phrasing about the beneficial utility of “a good guy with a gun” is stated as if supported by legitimate data rather than being simply a clever slogan. Similarly, whether a community with widespread gun ownership is safer than one without guns is unknown. These are not easy questions to answer in the absence of replicated studies with scientific legitimacy, open as is all science to critique and replication. Uncannily, the Congress actually bans such studies by the CDC—and thereby the knowledge they could produce. Without such data, the extreme firearm availability implied by the gun lobby to be necessary for Constitutionality can only be said to make into a legislative right the ability of gun lovers to do something they love—not a bad thing in itself, but hardly justification for our national gun death rate.
The dishonorable subservience so many elected officials have to the gun lobby—much like our despicable partisan gerrymandering—is a repudiation of democracy, as I argued in my July 31, 2017 post, “Americans stand for democracy! Really?” Too bad the surviving students at Marjory Stoneman Douglas High School in Parkland, Florida are unable to contribute millions to subsidize elected officials’ campaign expenses. Too bad that although 70% of Americans think that solving America’s gun problem is worth doing, their representatives do not. Too bad the U.S. Senate and House are just too busy to pass effective gun legislation and make nice with the NRA at the same time.
The message we send to ourselves and to the rest of the world is that being an armed camp doesn’t bother us at all, even if it means continued school shootings and a rate of gun killings greater than in any other country in the world. Perhaps, as I suggested last month in “America has too few dead kids,” school shootings have not grown horrid enough or frequent enough to get our sustained attention. We just don’t have enough dead kids yet, evidently not enough for their lives to be worth more than gun lovers’ opportunity to play with their guns.
[DISCLAIMER: First, I am not a lawyer, much less a specialist in Constitutional law, therefore comments in this post are represented as thoughtful, but not authoritative. Second, I’ve fired weapons only during military service, and have owned only one gun in civilian life.]
COMMENTS: Due to impending travel, comments received after March 6 cannot be processed or posted earlier than March 22.