In re the firearms debate

The contentious public policy dispute of the hour is the question of regulating firearms, and the U.S. Conference of Catholic Bishops has a statement that makes two comments and advances five (very general) calls.

I. The bishops’ call.

When the bishops intervene in public policy questions, they do well to tread lightly. 1 Bishops have a right—in some cases an obligation—to speak about policy, but, recognizing that the path from sound doctrine to sound policy is not always straight, short, and well-lit, 2 they should do so in a manner consonant with the limits of their ex officio competence. 3 With this in mind, let us consider the USCCB statement.

The Conference’s first comment recites a statement by Pontifical Council for Justice and Peace that “limiting the purchase of [handguns] would certainly not infringe on the rights of anyone.” People may think as they will whether or not any human right is thus infringed, but it is assuredly not true in the United States that no right is infringed by such a measure. 4 The second amendment would preclude such measures, for better or worse. 5

The second assails the infernal engines of a culture that now wallows in violence and is rapidly becoming indifferent to violence. If their point is that public policy should do something about the movie, gaming, and musical industries—what we might dub the “musical-entertainment complex”—I agree. But the first amendment would preclude such measures, for worse without doubt. 6

Finally, the Conference makes five general calls, and they are so vague that almost everyone could agree with them. (1) “Support measures that control the sale and use of firearms”—which could simply mean universal background checks, for example. (2) “Support measures that make guns safer (especially efforts that prevent their unsupervised use by children and anyone other than the owner).” (3) “Call for sensible regulations of handguns.” Who, assuming that “sensible” means (as it must) “compliant with sound public policy and the Second Amendment,” could disagree? For example: A sensible regulation of handguns might be an amendment to the No Child Left Behind act that ensures that all children learn basic firearms safety. (4) “Support legislative efforts that seek to protect society from the violence associated with easy access to deadly weapons including assault weapons.” Who could disagree, in principle? (5) “Make a serious commitment to confront the pervasive role of addiction and mental illness in crime.” If this meant anything, presumably no one could disagree!

Outside of the privileged categories of faith and morals, 7 our shepherds’ views are always entitled to respectful consideration, 8 but they are not controlling. 9 Here, though, there is little offered for consideration. In this case, we have the opposite extreme from the concerns that prompted my earlier  posts: The Conference intervenes in a public policy debate in a way that is so vague that it says almost nothing and supplies almost no guidance. We are more-or-less on our own.

II. The legality and utility of gun control

The second amendment protects an individual right to possess and thus obtain firearms, primarily, although not exclusively, for the purpose of self-defense. The precise boundaries of this right have yet to be mapped. 10 Nevertheless, not every regulation of firearms violates the second amendment. 11 Background checks, for example, seem unlikely to violate the second amendment: If there are classes of people who are not permitted to own weapons, a traditional exception that Heller expressly declines to disturb, 12 it stands to reason that there can be restrictions on the sale of weapons to such persons, and therefore that public policy may impose an obligation upon (and supply a means for its accomplishment to) sellers of weapons that they determine whether buyers fall into those classes. 13

Moreover, gun enthusiasts err if they say “well, are we going to ban pressure cookers, or knives, or baseball bats, because they’re also used to kill people”: There is a significant difference between an object that is capable of being used for violent purposes, on the one hand, and on the other, an object that is designed for violent purposes. A handgun can be used to inflict violence on targets and game animals, but its primary purpose is to inflict violence on human beings. (Violence used in self-defense is justifiable violence, but violence nevertheless.) A pressure cooker can be misused to inflict violence, but it is not designed, built, marketed, or typically purchased for violent purposes. For this reason, the analogy between regulation of firearms and regulation of any object that can be set to violent purposes is not a strong one, in my opinion, and a rational legislature could distinguish them on these grounds. 14

At the same time, however, I tend to think that we should focus on the cause rather than the instrument. I agree with the Conference’s second point if it means to suggest that that our increasingly-desensitized 15 and violent culture is the fundamental cause of our increasingly-frequent massacres, rather than the continuing availability of instruments that have been around for a long time. If mass violence is increasing but the availability of firearms is not, then something else must be the cause, and we would do well to address that, whatever that is, even if constitutional restrictions limit our ability to do so directly.

Nor is it entirely clear that so-called “gun control” works. For example, take the crime that animated the current round of hand-wringing, and the proposed legislative response: What would universal background checks have done to stop the Sandy Hook mass shooting? Not a thing. Adam Lanza did not buy the guns that he used, and his possession of them was already illegal under Connecticut law. 16 Would they have stopped the Aurora mass shooting? 17 It is far from clear that James Holmes’ background would have flagged him at the times of purchase, 18 and even if it had, why in the world would we suppose that a person who cares so little for the law that he is willing to kill dozens of people will care so much for the law that he will be unwilling to steal the weapons to do so?

Nor should we forget that the touchstone school shooting of the modern era, Columbine, took place during the last great era of gun control, the Clinton-era Assault Weapons Ban (“AWB”). Writing at the National Dissenting Reporter, Michael Sean Winters attempts to salvage the AWB on the ground that it wasn’t strong enough medicine, 19 but I don’t think one can plausibly claim that it’s “a premature conclusion” that it didn’t work. It didn’t. And one cannot plausibly attack that reality by suggesting, as Winters does, that it could have worked if it had been different; that is no more than a backhanded confession that it didn’t work and a proposal of emendations if it should be reenacted.

Finally, public policy—it is usually thought—ought to pursue valid public goals using means that correspond to their goals and the realities of the polity that it will govern. But the “assault weapons ban” checks none of those boxes: If it is directed at eliminating such weapons, it pursues a seemingly-invalid goal (the Second Amendment, the Supreme Court reminded us McDonald v. Chicago, “protects a personal right to keep and bear arms for lawful purposes” 20), and if it is directed at reducing gun violence, it employs futile means, because the overwhelming majority of firearms deaths and non-fatal injuries (respectively, approx. 31,000 per anum and approx. 72,000 per anum 21) in this  involve handguns, not “assault-style weapons.” 22 Public policy should respond to gun violence, but it should do so in ways that correspond to reality rather than progressive dogma.

III. A modest proposal

A ban is out, and won’t work anyway. Background checks and mandatory registration are permissible, but they won’t work either. So what will work? A national conversation on gun policy is premature until we’re ready to face the possibility of answers to that question that we don’t like, and it seems to me that most Americans are not; progressives even less so. For this reason, ultimately, and perhaps surprisingly, I support not only the enhanced background checks that have been proposed (which do not violate the second amendment), but, moreover, a reenactment of the AWB (which may, but probably does not, violate the second amendment). 23

I take this position not because I think that these measures will work, but rather with the hope of advancing the national conversation toward a place where we can talk candidly about what it will really take to deal with gun violence, particularly in schools. Background checks are the best place to start. They are sensible-enough public policy, compliant with the second amendment, and overwhelmingly-popular. They will also accomplish virtually nothing of value—but, then again, neither will any other public policy changes  that are compliant with the Second Amendment. But they ought to be enacted anyway, as should a renewal of the AWB, with or without the changes suggested by Winters and others. These changes may reduce the body count in the next mass shooting, which is a good thing, but they will not “work” in the sense of accomplishing the lofty aspirations of most of their proponents. Their failure might move us toward a more adult conversation about what must be done to deter and respond to mass shootings.

Every mass shooting ends, it seems to me, when the killer takes his own life or when people with guns show up; the logical response is to short-circuit the process by having people with guns already present. America isn’t yet ready to have a conversation that candid. We prattle on about gun control measures that won’t work and argue over whether they’re too much or too little or too unconstitutional. It therefore seems to me that the fastest way for us to make real progress is to publicly subject the assorted canards of the gun control theorists to a fate worse than death: They should be put into practice, 24 with the caveat that when they fail, we shall put them away and never again speak of them.

Notes:

  1. See generally Episcopal competence and the public policy nexus, redux, 2 MPA __ (2012); Episcopal competence and silence, 2 MPA __; Catholic social teaching and public policy, 1 MPA 151 (2012); Is it time for a Catholic political party?, 1 MPA 43.
  2. Cf. SF: [Re] Gillis v. Litscher, reproduced in Simon Dodd, Overthinking It __ (forthcoming 2013) (“when we dive in murkier waters, where the [Constitution’s] command is less plain, we should be guided by the ropes of the unenunciated structures and principles that undergird and are presupposed by the Constitution, and by the lights of our forebears: By tradition and by precedent (the latter being tradition given sharper teeth)”).
  3. See Episcopal competence, redux, supra, 2 MPA, at __.
  4. It has become customary in right-of-center circles to invoke the Declaration of Independence’s sonorous announcement that “all men … are endowed by their Creator with certain unalienable Rights,” which include “Life, Liberty and the pursuit of Happiness,” and then to announce that our “rights don’t come from government.” Some do. In today’s argot, we call the rights referenced by the Declaration “natural” or “human” rights; they are universal: All people, everywhere, have the same God-given rights, even if they are presently estranged by circumstances. It does not follow, however, that all rights are ex Deo. Some rights are ex constitutio, that is, rights that society has created by withholding from the government the power to abridge them; there is no God-given right to the writ of habeas corpus, see U.S. CONST., Art. I, § 9, Cl. 2. Some rights are ex legibus, that is, rights that society has created through the government; there is no God-given right to timely notice of a parole hearing granted to a person convicted of a crime in which you were a victim, see 18 USC § 3771(a)(2). To be sure, most of the rights that we create are extrapolations from, or hedges against violation of, rights ex Deo. Those rights are not self-executing; the mere possession of them does not effectuate them, and we therefore see, as just mentioned, that millions of God’s people are estranged from the rights He gives them by willful governments and evil men. Thus the role of the polity acting upon and through its instrument, the state. For example: There is a right ex deo to self defense. The rights ex constitutio conferred by  second amendment, and the rights ex legibus conferred by “stand your ground” laws, are preservative of, but distinct from, that underlying right ex deoCf. Ronald Syme, The Roman Revolution 513 (1960) (“political rights are a means, not an end in themselves. That end is security of life and property”).
  5. See District of Columbia v. Heller 554 U.S. 570 (2008); McDonald v. Chicago, 130 S. Ct. 3020 (2010); but cf., e.g., Hightower v. Boston, 693 F.3d 61 (1st Cir. 2012).
  6. See, e.g., Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).
  7. See Encyc. Humanæ vitæ, no. 4, 60 AAS 481, 483 (Paul VI, 1968)
  8. Cf. Colby v. J.C. Penney, 811 F.2d 1119, __ (7th Cir., 1987) (Posner, J.); In re Continental Airlines, 91 F.3d 553, __ (3rd Cir. 1996) (Alito, J., dissenting).
  9. There is an asymmetry here: No one would deny that the bishops are competent to judge specific policy proposals against the Church’s teaching. Cf. Encyc. Pacem in terris, no. 160, 55 AAS 257, 301 (John XXIII, 1963); Encyc. Mater et magistra, no. 42, 53 AAS 401, 410-11 (John XXIII, 1961). The reason is straightforward enough: There are several policy responses that can follow from Catholic teaching, cf., e.g., CCC ¶ 2442; Encyc. Caritas in veritate, no. 9, __ AAS __, ___ (Ben. XVI, 2009), but only one truth against which those policies must be judged, and the bishops are preemptively expert in it. Instead of speaking in terms of asymmetry, then, it may make more sense to speak about it being unidirectional: Doctrine does not typically prescribe one policy, but policy must always comply with one doctrine.
  10. Heller holds that a complete prohibition on handguns, or the functional equivalent thereof, is invalid. 554 U.S., at 630. It also indicates in dicta that the rights secured by the Second Amendment are not unlimited and disavows either an exhaustive probe of the precise boundaries of those rights or commentary on the traditional proscriptions on that right. Id., at 626-7; see also Vartelas v. Holder, 132 S. Ct. 1479, 1489 (2012); cf. Hightower, supra, 693 F.3d, at 73 (concealed carry restrictions valid); Kachalsky v. County of Westchester, 701 F.3d 81, 91 (2nd Cir., 2012) (similar); National Rifle Ass’n v. Payne, 700 F.3d 185 (5th Cir. 2012) (age restrictions on firearms sales valid); United States v. Huet, 665 F.3d 588, 601 (3rd Cir. 2012) (living with a felon may constitute aiding and abetting their obtaining a firearm); United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc); (non-violent offenses can trigger mandatory disarming statutes); United States v. Vongxay, 594 F.3d 1111, 1113-14 (9th Cir. 2010) (same).
  11. Cf., e.g., Virginia v. Black, 538 U.S. 343 (2003) (first amendment free speech clauses not absolute); Times Film Corp. v. Chicago, 244 F.2d 432 (7th Cir. 1957) (same); Employment Division v. Smith, 494 U.S. 872 (1990) (first amendment free exercise clause not absolute); United States v. U.S. District Court, 407 U.S. 297 (1972) (fourth amendment not absolute); Bell v. Wolfish, 441 U.S. 520 (1979) (fifth amendment not absolute); In Re: Grand Jury Proceedings, No. 410, 2013 US App. Lexis 2752 (11th Cir., Feb. 7, 2013) (same); Andover Data Services Inc. v. Statistical Tabulating Corp., 876 F.2d 1080 (2nd Cir. 1989) (same); Parker v. Hennepin City District Court, 285 N.W. 2d 81 (Minn. 1979) (same); United States v. Carrera, 259 F.3d 818 (7th Cir. 2001) (sixth amendment right to counsel not absolute); Nimrod Marketing Ltd. v. Texas Energy Investment Corp., 769 F.2d 1076 (5th Cir. 1985) (seventh amendment not absolute); Faheem-el v. Klincar, 841 F.2d 712 (7th Cir. 1988) (en banc) (eighth amendment not absolute).
  12. Heller, at 626-27 (“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill”); see United States v. Carter, 669 F.3d 411, 415 (4th Cir. 2012)  (“[T]he Anglo-American right to bear arms has always recognized and accommodated limitations for persons perceived to be dangerous”). In the analogous first amendment context, cf. R.A.V. v. St. Paul, 505 U.S. 377, 382-4 (1992); but cfBrown, supra, 131 S. Ct. 2729.
  13. Cf. National Rifle Ass’n, supra, 700 F.3d, at 205 (whereas strict scrutiny applies within the core right recognized by Heller, intermediate scrutiny applies further out). Dicta in Heller imply that background checks would not violate the second amendment, and so does common sense, but the question remains undecided by the Supreme Court, notwithstanding the lack of serious doubt as to which way that case will come out. The court obliges only in holding, but, as I seem to recall Judge Easterbrook once observing, nevertheless teaches in dicta. A lower court that struck down a background check would not be disobeying its obligations, but it would be begging reversal.
  14. Cf. National Paint & Coatings Ass’n v. Chicago, 45 F.3d 1124 (7th Cir. 1995) (Easterbrook, J.).
  15. I detest double negative “add then take” constructions such as “increasingly less …” (read “decreasingly …”) or “more incorrect” (read “less correct”). Nevertheless, I will reluctantly accept them—or, rather, constructions redolent of them—in cases of diminished symmetry: When a word becomes a term-of-art or otherwise acquires a significant secondary connotation not shared by its cognate. There is a distinction, it seems to me, between “increasingly-desensitized” and “decreasingly-sensitized.”
  16. See Lee Higgins, Newtown massacre: ATF records show Nancy Lanza gun purchases, April 11, 2013, http://www.lohud.com/article/20130410/NEWS/304100064/Newtown-massacre-ATF-records-show-Nancy-Lanza-gun-purchases (last visited April 30, 2013) (Bushmaster and SIG Sauer were bought by Nancy Lanza); Conn. Gen. Stat. §§ 29-35 (carrying handgun without permit) and 29-28(b)(10) (issuance of permits to persons under 21); cf. Dana Sherne, Adam Lanza Wouldn’t Have Been Stopped by Stricter Gun Control Lawshttp://www.policymic.com/articles/20861/adam-lanza-wouldn-t-have-been-stopped-by-stricter-gun-control-laws (last visited April 30, 2013).
  17. See also Re the Colorado shooting, 2 MPA __ (2012); The Catholic Response to Colorado, 2 MPA __.
  18. Holmes bought his Glock and Remington 870 in late May and his Smith & Wesson in early June; it was not until late June that “Dr. Lynne Fenton reported to the campus police that he had made homicidal statements which indicated he was a threat to the public.” See http://en.wikipedia.org/wiki/James_Eagan_Holmes (last visited April 19, 2013).
  19. Beating the NRA, April 10, 2013, http://ncronline.org/blogs/distinctly-catholic/beating-nra (last visited April 26, 2013).
  20. McDonald, supra, 130 S. Ct., at __; but see Heller, supra, 554 U.S., at __.
  21. See, e.g., http://www.uphs.upenn.edu/ficap/resourcebook/pdf/monograph.pdf (last visited May 1, 2013).
  22. See, e.g., http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/tables/10shrtbl08.xls (handguns accounted for 6,009 of 8,775 firearms homicides in 2010—approximately 68.5%) (last visited May 1, 2013); http://www.gunpolicy.org/firearms/region/united-states (similar) (last visited May 1, 2013).
  23. Cf. Heller, at __.
  24. Cf. The Oxford Dictionary of Political Quotations 153 (Jay, ed. 1996) (“Unfortunately monetarism, like Marxism, suffered the only fate that for a theory is worse than death: it was put into practice” (Ian Gilmour)).