In re the firearms debate, redux

I last wrote about Catholics and guns in 2013. 1 Kathy Schiffer notes a new book, “My Parents Open-Carry,” and asks for thoughts on gun policy. 2 I should note at the outset that I am uncomfortable with propaganda aimed at children, and this book trips the propaganda alarm for me, even though I favor exposing Americans to guns and teaching them about firearms safety from approximately 1st grade on up.

That said: So the question posed is: “Do you support tighter restrictions on gun ownership? If yes, would you prohibit ownership of handguns by private citizens? [If no,] …. what limits would you impose?” It seems to me that any gun policy has to take account of reality; you wouldn’t think that it would be necessary to say something so obvious, but neither side of this debate operates on anything close to reality.

The reality is this: The Second Amendment exists and has profound implications for the situation of guns in America and what we can do about them that make the experience of foreign countries entirely inapposite. It also means (despite the fervent desire of the left that this not be so) that guns are and will continue to be pervasive, and we can’t do anything about that, so the question is how we respond. At the same time, however (despite the fervent desire of the right that it do so), the Second Amendment does not forbid all regulations on guns. It doesn’t, for example, prohibit background checks. It may or may not forbid bans on specific kinds of weapons or ownership by specific categories of persons.

Thus, the question becomes: What regulations could we enact that would be wise and also consistent with the second amendment?

The problem is that America isn’t ready to have an adult conversation about that. I am of the view that the next step should probably be to reenact the Clinton-era Assault Weapons Ban, which is probably (but not certainly) constitutional, and small-bore stuff like closing the so-called “gun-show loophole.” And that is not because I think that those things will work, but because every time there is a gun-related tragedy, our brethren on the left insist that if we would only do those things, the mass-shootings would stop. So we should cut them a deal: We will reenact the AWB for five years, but when it fails, it won’t be renewed, and the discussion will move on, once and for all.

At that point, we may be able to address the question in a sensible manner. Without getting too far into the “wisdom” side of it, I might note that there are several examples where measures that could be characterized as “gun control” would not infringe the Second Amendment. Background checks and registration requirements might serve as examples. As to the former, background checks have to be constitutional unless you think that the Second Amendment doesn’t allow government to exclude anyone from firearms ownership: If the government may ban the insane from owning firearms, it may inquire as to the sanity of a purchaser. 3 As to the latter, to take a first amendment analogy, the government may not abridge the right to a press by throttling ink, the instrumentality without which the press is useless (so holds Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue), but that doesn’t mean that they can’t require registration of the presses. In both instances, the amendments prohibit suppression of the right, not the taking of steps that might be helpful should the government later decide to violate the right.

Heller was also at pains to point out that “nothing in [this] opinion should be taken to cast doubt on … 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,” all of which could be described as “gun control” measures. Again, the first amendment supplies an analogy: Reasonable restrictions on time, place, and manner do not abridge First Amendment rights, so analogous restrictions likely do not abridge Second Amendment rights.

More abstractly, just as the First Amendment’s protection of “the right”—note the definite article—”to free speech” presupposes an understood content to that right, one that never included obscenity which is therefore not protected by the First Amendment, so also the Second Amendment’s protection is cabined by both the original understanding of “the right”—note the definite article—”to keep and bear arms” and by the language of the amendment. Thus, for example, there is room to debate whether it protects access to a weapon that cannot be “borne”: Does the literal language of the text “and bear” prevail, or do you treat the text “keep and bear arms” as a unit reference to that preexisting right? Those are up for debate. I have my own opinion, and so does everyone else, but it’s a debatable point. Does the amendment protect weapons that are qualitatively-different from those that the framers anticipated? Again, I have my own opinion, and so does everyone else, but it’s a debatable point.

So there are several measures that fall under the broad rubric of “gun control” that might be constitutionally-valid. Doesn’t necessarily mean that they’re good ideas, doesn’t necessarily mean that we can do them, politically, but they are permissible responses.

Notes:

  1. In re the firearms debate, 3 MPA __ (2013).
  2. Schiffer, A New Teaching Tool in the Gun Control Debate, Seasons of Grace, Aug. 14, 2014, http://www.patheos.com/blogs/kathyschiffer/2014/08/my-parents-open-carry-a-new-teaching-tool-in-the-gun-control-debate/ (last visited Aug. 24, 2014).
  3. Heller noted the “presumptive[]” validity of “longstanding prohibitions on the possession of firearms by felons and the mentally ill” and warned that “nothing in our opinion should be taken to cast doubt on” them. District of Columbia v. Heller, 554 U.S. 626-27 n.26 and accompanying text (2008).