The tragedy at the Sandy Hook Elementary School in Newtown, Connecticut has re-energized the debate on our nation’s gun policy. Most commentators in the media and the blogosphere have called for tighter gun laws. My friend Ron, who’s written a scholarly article on the Second Amendment, takes a contrary view. Ron is no gun nut. Since our law school days he’s been one of my best friends – despite our having very different political views – and is a thoughtful, intelligent guy. He owns several firearms which he keeps under lock and key. I do not own a gun but I have been target shooting with Ron and thoroughly enjoyed the experience – and would happily do it again.
Ron’s brief article against tightening our gun laws I believe, sets up a straw man and then, not surprisingly knocks it down. Few people are calling for an outright ban on guns or the right of individuals to own them. Ron cites recent Supreme Court precedent supporting the proposition that the Second Amendment provides such individual guarantees and I do not dispute his analysis of the jurisprudence.
However, as Senator Schumer pointed out on Face the Nation, no amendment, not even the First, is absolute. The Courts have routinely upheld reasonable “content-neutral” restrictions (e.g., you can’t post notices in certain places irrespective of what the message might be). And I’m sure Ron will correct me if I’m wrong, but gun registration laws and waiting periods are constitutional under the Second Amendment.
But simply demonstrating an individual’s Constitutional right to guns is not the end of the discussion. Even assuming this right, I don’t think my good friend would advocate for an individual’s right to own chemical weapons, a nuclear warhead, a fighter jet, tank or anti-aircraft launchers. So, it appears that the government, under the Second Amendment, can restrict individuals from obtaining some arms within reason.
Only the biggest fear-mongers among the NRA leadership and their acolytes would suggest that any legislature is looking to take away firearms reasonably used for hunting or self-defense. I submit that there’s no sport in hunting with an assault rifle. Nor is there any need to have semi-automatic weapons to defend one’s self or home. After all, if you shoot an assailant once or twice he’s likely disabled. No need to shoot him a dozen times.
Similarly, I do not understand the deterrent effect of allowing individuals to carry concealed weapons. If a would-be criminal sees someone with a gun in a holster or a rifle slung off the shoulder, that potential ne’er-do-well won’t even draw his weapon, whereas he might draw and even fire in the presence of concealed weapons. I suspect crime deterrence is why most police officers wear uniforms.
Ron does acknowledge that the mentally ill should not be allowed to buy firearms. But the shooter in the Sandy Hook slaughter didn’t buy the guns – his mother did. And, again, a restriction barring the mentally ill from buying guns would appear not to run afoul of the Second Amendment.
Nor is it an answer to say that the Newtown killings would not have been prevented with stronger gun laws. True, no law can prevent mentally deranged individuals from attacking. However, if Adam Lanza were only able to get his hands on a pistol or a hunting rifle, he might have only killed two first-graders, not twenty. And if mega-clips were not salable to individuals, would-be mass murderers would have to re-load more often, allowing people to either subdue the shooter (as has happened) or escape. We can’t prevent a madman’s carnage, but we can certainly minimize it.
Ron cites a study that states which allow citizens to carry guns have lower crime rates. I’d counter with surveys from other industrialized nations, such as Japan, England, Canada and Germany. Firearms are not nearly as available there and the incidents of gun violence, not surprisingly, are a fraction of what we have here in the States.
Ron concludes that “[t]he Founders of America saw fit to place firearms in a highly exalted position in our framework of individual liberties.” True. Many of them also owned slaves. Our Constitution is the highest law in the land but it is not sacred text. It’s been amended 27 times and we fought a Civil War over it. Back in the Founders’ day, people could be property and women couldn’t vote. The Constitution’s built-in amendment process demonstrates that the Founders of America recognized even rights enshrined in the Constitution be changed over time – although not easily.
So, what would I propose? Close the loopholes that allow people to avoid background checks at gun shows and other individual sales. Reinstate the assault weapons ban for individual use. Enact strict civil liability laws and amend the felony murder statutes to impose severe fines and imprisonment for people who allow access to guns where they are not registered to such individuals. That will create powerful incentives to have individuals keep their guns under lock and key – as my friend Ron does – so that the registered owner’s kids, friends and neighbors do not have access to them. Yes, Ron, I’ll grant you there is an individual right to bear arms. But it must be balanced with the right to freedom from harm.