February 20, 2018
Once
again a mass shooting has occurred, once again at a school, and once again,
probably, nothing will be done to prevent another such tragedy. Thoughts and prayers too often are cover for
inaction, and asserting that better mental health screening will suffice is a
delusion or an evasion. The connection
between the availability of guns and gun deaths is as clear as the connection
between human activity and climate change, and is ignored by so-called
conservatives in office for the same pair of reasons: libertarian aversion to
regulation, and political pressure and money which demand that it continue to
be ignored.
I’ve
begun to wonder whether public opinion counts for anything in today’s
politics. Polls show that people take
gun control far more seriously than Congress or the Administration, with no
effect. Earlier mass shootings,
including at schools, has not led to control of the availability of guns. A popular uprising, something akin to MeToo,
will be required. Perhaps the
teenagers, in Parkland and elsewhere, can succeed where the chronological
adults have failed.
There
are some indications of change; a Florida political donor has vowed not to write
another check to Governor Scott and other Republicans "unless they all
support a ban on assault weapons.” The
Sheriff of Broward County, where Parkland is located, warned officials that
they will not be re-elected unless they support stronger gun laws. As a forecast, that may be too optimistic,
but it’s another good sign.
The media
usually have not pressed the issue. One
example is the CBS nightly news broadcast on February 14, which devoted a
significant part of its time to the Parkland shooting, but did not mention the
easy availability of guns as a cause. Change may be coming there as well;
newspaper articles and columns have condemned inaction and hypocrisy in a way
not seen after earlier shootings.
Those who
tout American exceptionalism probably don’t have in mind our relative standing
in various categories relating to health and safety, including the prevalence
and impact of guns. We have more guns
in private hands, and have more gun deaths than any other developed country, and
more mass shootings. The ratio of guns
to gun deaths holds true among other developed countries. This is not because we have more crime; per
capita, our record is respectable; guns create an aberration. The argument that
control doesn’t work is belied by experience: countries which have instituted
more control have seen gun deaths drop; here, states with tighter gun-control
laws have fewer gun deaths. [20]
Bret
Stephens, in a column in The New York Times, has
proposed repealing the Second Amendment.
This, coming from a conservative, is significant. He summarized the
argument as follows: "We need to repeal the Second Amendment because most
gun-control legislation is ineffective when most Americans have a guaranteed
constitutional right to purchase deadly weaponry in nearly unlimited
quantities."
The
Amendment long has been cited, legitimately or not, as the authority for
unlimited ownership of firearms. For
example, there has been a gun-rights group known as The Second Amendment
Foundation since 1974. The Amendment was used as an argument against the Brady
Bill in 1993. Days after the 1999
Columbine school shooting, Charlton Heston preached Second Amendment
rights. However, it was legitimized as
a basis for individual gun possession only with the decision in Heller
v. District of Columbia (2008),[21]
which overturned United States v. Miller (1939). Miller
had limited the Amendment to the support of militias, as the language seems
to provide. The Amendment had not been
applied to restrict state laws until the Court extended Heller to the states
in McDonald v. Chicago (2010).
Justice
Scalia’s opinion for the 5-4 majority in Heller is misguided, inept and
internally inconsistent. In the course
of interpreting the Amendment, he rewrote it by expunging the limiting clause, "A well regulated
Militia, being necessary to the security of a free State;" by converting
the phrase "keep and bear arms" — a militia reference — into
"keep and carry arms;" and by reading into the text "the
individual right to possess and carry weapons in case of confrontation." The last was based on an English statute of
1689 which provided that "the subjects which are Protestants may have arms
for their defense suitable to their conditions and as allowed by law." By
some mysterious process that became part of the Second Amendment, a process
aided by cancelling the reference to militias.
Along the way, the statute lost its reference to religion, "as
allowed by law" vanished, and having arms for defense became a right to
carry weapons in case of confrontation.
The last
is a broad hint to gun advocates that it is good policy to be armed, just in
case. Those taking the hint include airline
passengers. TSA reported finding 104
handguns (87 loaded) in carry-on bags between February 4 and 11.
In
dissent, Justice Breyer argued that "the protection the Amendment provides
is not absolute. The Amendment permits government to regulate the interests
that it serves." The majority
would have none of that: "The very enumeration of the right takes out of
the hands of government — even the Third Branch of Government — the power to
decide on a case-by-case basis whether the right is really worth insisting
upon." The right is absolute.
Despite Heller’s
sweeping rhetoric its holding is narrow, and would not justify mass gun
possession, concealed carry, opposition to licensing, purchase from unlicensed
sources, purchase by minors, possession of military-style rifles, or other
examples of our irrational practice. It
merely held that "the District's ban on handgun possession in the home
violates the Second Amendment, as does its prohibition against rendering any
lawful firearm in the home operable for the purpose of immediate
self-defense." Possession in the
home, for self-defense, of a loaded handgun, not burdened with a trigger-lock, is protected; that’s it. Little of the subsequent reliance on the
Amendment and the decision can be based on the holding. Instead, gun advocates take the decision
as blanket permission, relying on
Scalia’s loose language and his strange interpretation of the Amendment.
As the
Second Amendment clearly is the problem, what are the possible solutions? The best would be for the Court to overturn Heller
and McDonald and return to the holding in United
States v. Miller (1939).
Justice Stevens, dissenting in Heller,
described the former interpretation of the Amendment in this way: "The
view of the Amendment we took in Miller — that it protects the right to keep
and bear arms for certain military purposes, but that it does not curtail the
Legislature's power to regulate the nonmilitary use and ownership of weapons —
is both the most natural reading of the Amendment's text and the interpretation
most faithful to the history of its adoption."
Given the
makeup of the Court, reversal isn’t likely;
Justices Roberts, Thomas, Kennedy and Alito were in the majority in Heller,
and Justice Gorsuch might be expected to join them in rejecting any such
retreat. The present Congress hardly is
likely to propose repeal of the
Amendment, but perhaps the combination of a Democratic takeover and that
popular push would make it possible.
The latter would be needed at the state level as well, in order to
achieve ratification.
A simpler
and more direct approach, but also requiring a new Congress, would be to enact
stricter gun laws. One of the oddities
of the Heller opinion is that, for all of its
sweeping pro-gun comments, it contemplated some kinds of control. The right to keep and bear arms, it said,
"was not unlimited, just as the First Amendment's right of free speech was
not . . . . Thus, we do not read the Second Amendment to protect the right of
citizens to carry arms for any sort of confrontation, just as we do not read
the First Amendment to protect the right of citizens to speak for any purpose.
. . ." More specifically,
"nothing in our opinion should 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."
It isn’t
clear whether the Court would have allowed prohibition of certain types of
weapons, as Scalia’s muddled opinion took opposing positions on whether the
Amendment protects only weapons in existence when the Bill of Rights was
adopted. At one point, he seemed to
reject that interpretation: "Some have made the argument, bordering on the
frivolous, that only those arms in existence in the 18th century are protected
by the Second Amendment." No, he
said, "the Second Amendment extends, prima facie, to all instruments that
constitute bearable arms, even those that were not in existence at the time of
the founding." Later, he reversed
course: "We also recognize another important limitation on the right to
keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those ‘in common use at the
time.’ . . . We think that limitation is fairly supported by the historical
tradition of prohibiting the carrying of
‘dangerous and unusual weapons.’ "
Perhaps prohibition of assault rifles, large magazines and bump stocks therefore could pass muster;
the opinion’s focus on the right to a handgun might help justify that.
Another
possibly unintended opening exists in the opinion’s reference to the people
whose rights it sought to protect.
Whatever interpretation one might put on the Amendment, the Court said,
"it surely elevates above all other interests the right of law-abiding,
responsible citizens to use arms in defense of hearth and home." It doesn’t do that, of course, but the
reference to responsibility, if taken as a limitation on possession, would open
more doors to control, such as meaningful background checks and licensing.
The opinion can mean almost anything, given its
illogic and ambiguity, so control advocates should be as aggressive in
interpreting it as the gun nuts.
Congress
should enact those laws necessary to bring order out of chaos, and defy the
Supreme Court to say nay. We cannot
simply recycle our thoughts and prayers forever.
______________________________
20. https://www.vox.com/policy-and-politics/2017/10/2/16399418/us-gun- violence-statistics-maps-charts
21. My review of the opinion is in the posts of July 6, 2008 and December 19, 2015.
