Regulating guns

Loved this article from law professor Sonya West in Slate emphasizing the fact that even with the DC v. Heller interpretation of the 2nd amendment, there’s still a lot of room left to regulate guns:

You’ve likely heard it from any number of sources. Perhaps it was from a presidential candidate, a lawmaker, your libertarian brother-in-law, or your Facebook frenemy. Whatever the source, you likely have been told that regulating guns in virtually any way violates the Second Amendment. 

I therefore offer today this quick constitutional refresher course: It does not.  [emphases mine]

Constitutional rights are not absolute. They never have been and, practically, never can be. In our constitutional democracy, we have always recognized that we can, and must, have our constitutional cake and regulate it too.

Take, for example, our freedom of speech. It is one of the most clearly stated and robustly protected rights in the Constitution, yet it is also subject to numerous restrictions. Our speech might not be protected if it falsely damages someone’s reputation, aids and abets a crime, contains a threat of violence, reveals a trade or military secret, harasses, plagiarizes, inflicts severe emotional distress, is deemed to be obscene, incites violence, or leaks classified information, to name a few. The United States Supreme Court further allows restrictions on when, where, and howwe can express ourselves even when the message itself is protected. In some cases we control who may speak, such as limitations we may constitutionally impose on the speech of students, prisoners, and government employees

The same is true of our freedom to exercise our religions.  [Plenty of examples of limitations follow] …

The Second Amendment, of course, is no exception. In the 2008 case of District of Columbia v. Heller, the Supreme Court told us that we have a constitutional right to possess firearms for self-defense, at least within our homes. But the opinion never suggested that this right was unconditional or immune from all regulation. In fact, Justice Scalia, writing for the majority, said just the opposite. In Heller, he specifically said that “the right secured by the Second Amendment is not unlimited.”  

Protecting the right to keep and bear arms is not the same as forbidding all regulations on that right. We can protect that right and still require background checks, permits, and training. We can still regulate when, where, and what kinds of guns are allowed. In some cases, we can regulate who can obtain guns, imposing restrictions on, for instance, felons, the mentally ill, and known terrorists. We can ban firearms such as military-style assault weapons that (like child pornography) plainly cause far more harm than they add in value. We can require those who are negligent with their weapons (as we do those who are negligent with their words in defamation cases) to be held liable for the harm they inflict on others. We can do all of these things; we just don’t. There might be policy reasons to debate the pros and cons of specific regulations, but there’s no reason to assume that there is a constitutional problem.

And you don’t need to take my word for it. Let’s take another listen to Justice Scalia inHeller, shall we? The Second Amendment, he stated, does not 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.” He further noted that nothing in the court’s decision “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.”

The Supreme Court just refused to take a case letting an Illinois municipality ban on assault weapons stand.  And speaking of which, I am under no illusion that an assault weapons ban will solve our gun problem.  That said… ban them!!  Of course they count for a trivial portion of gun deaths and bad guys will find other ways to get bad weapons if we outlaw them, but, of course, we should make it harder.  We ban fully automatic weapons.  We ban RPG’s.  Why should we not ban for civilian use weapons which were created explicitly for soldiers to be used in war (or, a modestly modified version thereof).  Nobody needs an AR-15 anymore than they need a grenade launcher.

In one of my rare disagreements with Jamelle Bouie he argues that an assault weapons bad is bad policy as long guns account for only 3.5% of shootings.  No argument here, but if some regulation could make that 3.3 or 3.4%, I’ll take it.  The benefit of this policy?  Maybe some tiny fraction of people are not killed in a mass shooting.  The cost?  Some yahoo with self-esteem issues doesn’t get to feel more manly by owning a military-style gun.  I’ll take the trade.

The NYT had a feature on the guns used in recent mass shootings.  Yes, many of them were handguns (I’m a huge supporter of bullet limits, but that’s for another day), but many were also like this Smith and Wesson M&P15 below.


There’s just no reason an American should be able to walk into a gun store and pick one of these up.

About Steve Greene
Professor of Political Science at NC State

6 Responses to Regulating guns

  1. rgbact says:

    “he argues that an assault weapons ban is bad policy as long guns account for only 3.5% of shootings. No argument here, but if some regulation could make that 3.3 or 3.4%”

    Yikes. These are the same liberals who want to legalize drugs and let more people out of prison. What other stuff besides drugs can we ban that make almost no difference?.

  2. ohwilleke says:

    For all the attention that Heller gets, the far more important case was McDonald v. City of Chicago, 561 U.S. 742 (2010) which held that the Second Amendment applies to state and local governments under the incorporation doctrine.

    Until then, Heller could have been understood as a quirk of the fact that the District of Columbia is a federal enclave and the Second Amendment could have been interpreted as a federalism guarantee against federal gun control – which is a better fit to the implicit “right to insurrection” (at least by co-equal state sovereigns) theory of the right. One could have said that gun control is a state and local function subject to regulation by state constitutions, which would have, for example, allowed New York and California to have tight gun controls, while Texas and Wyoming had weak gun controls.

    After McDonald, there is a core individual right to have a fire arm for self-defense purposes in your home, at least if you don’t pose any very plausible threat to public safety because you are a felon, have a record of mental illness, are a minor, are on probation or parole, have a TRO in place, etc. This right probably extends, at a minimum, to ordinary semi-automatic handguns, to hunting rifles, and to shotguns. And, this core individual right, if exercised with anything approaching the frequency that it is today, guarantees a minimum pool of firearms in the general public insufficient to avoid incidents like the San Bernadino shooting.

    I have a hard time imagining any scenario in light of Heller and McDonald, in which the couple that did the shooting in San Bernadino could have lawfully been prohibited from buying weapons sufficient to carry out a comparable slaughter. It might have been possible to prohibit them from buying AK-15s, but surely they could have had access to rifles capable of inflicting similar carnage. To prohibit these individuals from having arms in light of Heller and McDonald, authorities would have had to have had far more information than they did or could have secured, even if there were requirements for background checks, waiting periods, licenses, training, etc.

    (Similarly, there is really no way consistent with the constitution, that their religious beliefs motivating them could have meaningfully been used to intervene given what authorities knew or could have know using legal measures).

    On the other hand, one can imagine tighter regulations making it illegal for the Colorado Springs Planned Parenthood shooter to own guns, although it would be much harder to know if laws like that would have been effective to keep him from acquiring guns in a society where so many guns are in circulation and the irreducible minimum of Heller/McDonald is basically powerless to do more than slightly nudge that reality.

    Gun control advocates need to think more like civil rights advocates who enacted a lot of laws that were very hard to enforce, but which dramatically modified public opinion as a prelude perhaps to a repeal of the Second Amendment with wide public support. Changing public opinion and the social acceptability and conventional wisdom about the benefits of gun ownership are a prerequisite to any effective legislative action.

    • Steve Greene says:

      1) I would argue that DC v. Heller was the key. It established the philosophical principle. Given 20th century jurisprudence, it was pretty much a given that a case such as McDonald would expand it under selective incorporation.
      2) Forget amendments– far easier is to simply keep Democratic presidents in power to exchange one conservative justice for a liberal one.
      3) No law is going to stop every mass shooting (or non-mass shooting). People will find ways, but we should make it harder. Pesca had a nice analogy about cars. Of course there’s still tons of fatal car accidents, but the number has come way down due to seat belt regulations.

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