Friday, October 06, 2017

The Second Amendment Is Not a Relevant Part of This Story

by Neil H. Buchanan

Police are still investigating the Las Vegas massacre, with the death toll at 59 and hundreds of innocent victims now recovering from their bullet wounds and beginning to deal with psychological trauma that will surely last for decades.

The Republicans' response has been all too typical, using their "not now" mantra to try to shut down debate until the next, even more horrific disaster.

A tragedy this extreme has also brought forth a great deal of intelligent commentary, with a range of writers and many Democrats asking plaintively if we have finally reached the point where we might do something -- anything -- to try to prevent future mass murders.

One fundamental problem that long predates the carnage in Las Vegas is that the people who oppose the mindless extremism of the Republican Party and the National Rifle Association have meekly allowed the discussion to be about "gun rights," cowering in fear of a mythical version of the United States Constitution.

This must stop.  The simple fact is that the barrier to better regulation of guns is political timidity, not the Constitution.  Acting as if the Second Amendment needs somehow to be overcome -- including silly suggestions that we cannot do anything until we repeal that amendment -- is not just politically damaging but legally baseless.

It is hardly surprising when the NRA's shills in Congress try to turn every discussion about gun violence into an abstract constitutional question.  When, for example, House Speaker Paul Ryan recently spoke with the father of a victim of a white supremacist, the talking point was as predictable as it was hollow: "We also have to make sure we protect our Second Amendment rights for law-abiding citizens.  So there’s always a balance when you discuss these types of things."

Again, that is straight from the Manual of Distraction that the Republicans know by heart.  Invoking this and other specious arguments, such as the claim that "nothing can solve the whole problem, so we should not do anything," Republicans have spent decades perfecting the art of bobbing and weaving.

But the Republicans in Congress are representing the views of only a fraction of Republican voters, just as the NRA represents only a tiny fraction (something like four percent) of gun owners.  Why do liberals, centrists, and sane conservatives go on the defensive every time they talk about guns?  They apparently think they are on the losing side of a constitutional argument, even though they most definitely are not.

Consider one example.  A few years ago, when Jon Stewart was still hosting "The Daily Show," his guest was the sportscaster Bob Costas.  I honestly cannot recall which mass shooting was then dominating the news -- there are simply too many to keep straight -- but Costas had said something on the air a few nights before about the shocking ease with which people can buy guns in this country.

Naturally, Costas had been quickly assailed by gun extremists, and his appearance on Stewart's show was surely a welcome respite.  Stewart, like Costas, thought that the country should pass some restrictions on guns.  What caught my attention, however, was their needless concession on the Second Amendment.

I cannot recall which one said it first, but one of them said something along the lines of, "Now I don't want to trample the Second Amendment," and the other quickly agreed.  Both went to some lengths to say that they respect people's rights to own guns, acting as if there were meaningful constitutional issues in play.

The simple fact is that there were no such issues.  Not then, and not now.

It is true that the Supreme Court (aided and abetted by less than a handful of contrarian liberal legal scholars) mangled the meaning of the Second Amendment in the 2008 Heller case.  Justice Stevens' dissent continues to be essential reading.  But even under the majority's misreading of the Constitution, there is plenty that can be done to regulate and control guns.

We learned recently that Nevada's Republican politicians have been doing everything they can to ignore the will of their state's voters, who passed a ballot initiative last November to require background checks for private gun sales.  That is disgusting, and Nevadans should take the next opportunity to punish their politicians for ignoring the will of the voters.

But if the Republicans' favorite talking point -- that we cannot do anything about guns because of "the Second Amendment rights for law-abiding citizens"-- were right, then Nevada's governor and attorney general would not need to be so sleazy.  They could simply have gone straight to court and obtained an immediate order to prevent the law from ever taking effect.

After all, if "the right to keep and bear arms" is infringed by any law having to do with gun ownership, then the Nevada initiative is unconstitutional.  But it is not, and the Republicans know it.

Similarly, we now know that the Las Vegas mass murderer used a special adapter that turns a semi-automatic weapon into a machine gun.  But why did he not simply buy a bunch of machine guns?  Because they are illegal.  How can they be illegal, though?  Does the Second Amendment not require us to "balance" good Americans' rights to own machine guns against the damage that they do?

Of course not.  Machine guns are illegal, and they have been for decades.  Nothing that the misguided majority in Heller wrote comes close to undermining that legal principle.  Indeed, the Heller decision confirmed that the Constitution is wholly consistent with limiting or banning all kinds of arms and with prohibiting the bearing of otherwise legal guns in all kinds of places (including the Supreme Court building).

Even the NRA is now apparently admitting as much, given reports that the lobbying group is giving Republicans permission to consider regulating "bump stocks."

If the Republicans' rhetoric were correct, there would be no need for people in upstate New York to put stickers on their bumpers (next to the Confederate flag) that say, "Repeal the SAFE Act," which is the 2013 law that New York passed after the Sandy Hook murders.  Yes, even though Congress refused to do anything after Sandy Hook, some states did take action.

Moreover, Republicans love to talk about how the states and cities that have strict gun laws (including those passed years and decades before Sandy Hook) still have problems with gun violence.  The most direct answer to that claim is that national laws would work better than local ones, but the more fundamental point is that those laws exist at all, and the courts have never (pre- or post-Heller) struck them down.

This really is not news, or at least it shouldn't be.  There is no constitutional problem with gun control laws that are much, much stricter than anything that is currently being considered.  For good people to say, "Oh, but we need to tread carefully -- the Second Amendment, you know," is unilateral disarmament (grim pun intended).

There is an echo here of the debate over the Affordable Care Act, and the right's invocation of The Broccoli Example.  There, the idea was that if the Constitution did not prevent Congress from forcing people to buy health insurance (or pay a small tax), then the government could soon force people to buy broccoli for their own good.  Big Brother!

The only sensible response was to say that the political process is the proper venue for such debates.  If Congress wanted to pass a law about broccoli, it could do so.  If the people did not like it, Congress would hear about it.  Any limits that the Constitution imposes on legislation were simply not relevant to the debate.  Plenty of bad laws are constitutional, even though they are bad.

Regarding guns, the Republicans and their media echo chamber are trying to make it seem that there is a binding constitutional constraint on any action that sane people might want to take.  But there is no Second Amendment principle that, say, forced Congress to pass a law preventing the Bureau of Alcohol, Tobacco, Firearms, and Explosives from using computer technology to track gun-related violence.

There is certainly no constitutional rule that prevents the government from studying gun deaths, or from regulating guns as a public health issue.  Some people think that the government should not do so, but that is a political preference, not a constitutional imperative.

I noted in two recent columns that many centrists and liberals, and even (supposedly left-leaning) journalists, give far too much ground to Republicans' talking points about taxes.  By ceding that ground, they reinforce a slew of baseless notions that then become conventional wisdom.

Conceding the baseless claim that we are up against a hard constitutional limit when dealing with guns is at least as damaging.

Saying, "Yes, I understand that people have the right to own guns, but ..." is as pointless and counterproductive as saying, "Yes, I understand that the government cannot force me to quarter soldiers in my home without my consent, but I want an Army base to be built in my town," or "Yes, there is a prohibition on cruel and unusual punishment, but I still want a person to go to jail for burning down my house."

The point is that there are always constitutional boundaries lurking the background, but we almost never talk about them unless they are of immediate relevance.  On guns, none of the current debate comes even within shouting distance of those boundaries.

All of which reinforces the reality that this is all about political posturing.  Requiring any debate over gun regulation to begin with a nod to the Second Amendment is no different from the absurd concession by liberals in the run-up to the Iraq invasion in 2003: "I support the troops, but ..."

Stop.  The Constitution does not prohibit aggressive policy responses to gun violence.  Pretending that we have to tiptoe around an amendment that clearly permits all kinds of regulations prevents us from seeing this as a simple political matter.  Republicans are afraid of an honest political debate.  There is no reason to let them continue to avoid it.


Unknown said...

You're putting too much blame on Republicans. I agree that whatever the boundaries of the Second Amendment are, they clearly allow for some regulation. As do all protections. But what is permissible is almost irrelevant because the legislation can't get even get passed.
But that isn't a "Republican boogeyman" problem. The issue here is Democrats and liberals, and the public at large. Most of the public supports gun rights. It dips somewhat after a mass shooting. But overall, the public becomes more and more pro gun every year. And liberals aren't anti-gun enough. Polls show liberals put gun control far down the list of things they care about. So who is there to force politicians to pass gun control legislation?
Look at the past presidential election. Trump moves to the right on guns. Hillary at first takes a progressive stance. But then is forced to pivot to this nonsensical "I believe in the essential holding of Heller's view that you have an individual right to own firearms for self-defense, I just believe DC is allowed to ban people from owning firearms for self-defense" argument, because her internal polls showed her progressive argument was hurting her.
Until liberals start actually caring about guns. And not tweeting or virtue signaling. But actually coming out to vote based on a politician's position on guns, much like the right does, none of this will matter. You can't blame the right for refusing to surrender the winning position. You have to actually take it from them.

Joe said...

The Heller majority noted:

"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"

Footnote: "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."

Also, "common use" was a limit. It continued: "It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned ..."

Reference is made to "dangerous and unusual weapons" (in context, certain type certain types of guns). And, there is an implication concealed weapons can be banned. Finally, the ruling itself specifically dealt with the home.

Slate recently had an article on how the Supreme Court has hurt the situation by not taking up follow-up cases to underline this point. Kennedy and Roberts seem loathe to address the particulars. The single case they decided was a per curiam involving stun guns that was decided on narrow grounds. A statutory case involving limiting guns for domestic violence offenders (the oral argument where Thomas talked) might have been something of a message too.

So, just how far regulations can go is not clear but many regulations are presumptive allowed. Many regulations were upheld since Heller; a few struck down. So, like a more comprehensive background check system, yes, this isn't about overturning the 2A any more than campaign finance law requires an amendment.

Anyway, regardless of the soundness on 2A grounds, there was a broad public acceptance of some right to own firearms. Handguns in certain urban cities was a special case there. Though big moves like what happened in Australia could possibly raise constitutional concerns, "the 2A" is not a barrier in loads of cases.

Joe said...

"the public becomes more and more pro gun every year"

Study show that a small percentage of the population are behind increases in gun sales & broadly support things like background checks that were filibustered when two NRA backers (the most right leaning Dem & a Republican) proposed it.

Many Dems speak out on this issue, including taking over the floor of Congress. A national candidate, who has to win a few gun friendly swing states, coming out against personal ownership of firearms is not likely. The "progressive" stance was "sane gun regulation." It wasn't that people can be denied the right to own a handgun. She tried to thread the needle finely in a debate, but that holds.* People overall knew her winning would help pass background checks etc.

Politics is about choices so if part of this is Democrats needing to focus (along with a slew of other issues including jobs, health care, women's issues, foreign affairs, etc. etc.) on guns more, maybe so. But, the real change requires some bipartisan support, some Republicans who join in.


* To me, Clinton was trying to say that she understood there was a basic right to firearms, but she disagreed with the Court on how broad one can regulate them. Breyer in his dissent in Heller suggested there was a way to interpret the law to allow for a basic right to self-defense. You might not need a handgun to do that either, at least in a crowded urban area. The specific trigger lock etc. regulations also might have been legitimate. Anyway, we can carp on specific campaign statements all day. The big picture of what Clinton winning meant was pretty apparent to both sides.

Unknown said...

"Study show that a small percentage of the population are behind increases in gun sales & broadly support things like background checks that were filibustered when two NRA backers (the most right leaning Dem & a Republican) proposed it."

Studies would also show a small % of the population practices homosexuality. That still doesn't mean support for homosexual rights doesn't increase every year in the general population.
It's a fact that the general public continues to move towards a pro-gun rights view every year. All studies show that. Which makes it even more important for their to be a single issue gun control base within the liberal side. And there isn't. And that's an absolute dagger to gun control.

"Many Dems speak out on this issue, including taking over the floor of Congress."

Yes, Dems in progressive strongholds. The problem is they can't help Dems or the country on this issue. The fear comes from those politicians that aren't in California. We saw this in Virginia. Virginia seems like it has gone blue, but not by a lot. The VA Dem governor ended reciprocity the state. VA only has single term governors, so he was fine. But then he reversed the regulation. Why? Because the rest of the Dems in the state made him do it. They needed to win re-election, and they were going to get killed on it.
Until you have a base that cares to balance out the other side's base that cares, it's a loss. You can't blame the other side's base for caring and demanding their politicians don't fold a winning hand.

" But, the real change requires some bipartisan support, some Republicans who join in. "

Sure, but you have to be able to force them to come to the table. That's the major issue here. Not that Republicans are sitting on a winner and refusing to do anything about it. That's what both political parties do when they have a winner. It's that Democrats don't have a way to make Republicans come to the table, because they really have no position of power on this issue. They basically just talk losses everywhere outside of California and MD and those areas.

"To me, Clinton was trying to say that she understood there was a basic right to firearms, but she disagreed with the Court on how broad one can regulate them."

Clinton had come out against Heller. We had her and multiple gatherings talking about how horrible Heller was. Which should have been fine. She's the Democrat. Talking bad about Heller should have been a winning issue for her. Like a Republican trashing Roe. But instead she does this kind of turn. Where she 1. makes up what Heller was about (Toddlers? Come on.) and 2. Argues that she only meant she disagreed with Heller's application of the central holding to the facts of the case. But that she agreed with Heller's essential constitutional holding. Well Heller's holding was you have an individual right to own a firearm for self-defense. D.C. made it illegal to own an operational firearm in your home. All firearms had to be made inoperable, and couldn't be made operable except for explicitly permitted government shooting events. Meaning you were not allowed to make your gun operable for self-defense. It's impossible for both Heller's essential holding to be correct, and DC's gun law to be permissible under Heller. The two things are incongruent with each other.
So why would Hillary even need to come out with this nonsensical about face mumbo-jumbo? Because of the lack of a strong gun control sentiment in this country, both in the public at large, and within the single issue voters of the liberal base.

Shag from Brookline said...

Heller (5-4, 2008) changed the interpretation/construction of the 2nd A that had basically been in place for over two centuries following its ratification in 1791. Over at the Legal Theory Blog the abstract has been posted to " ... a recent essay by Saul Cornell (Fordham University) in the Journal of Criminal Law and Criminology: "'Half-Cocked': The Persistence of Anachronism and Presentism in the Academic Debate Over the Second Amendment." (A link is proved there to this short article.)

Heller was limited to the use of certain arms in the home for purposes of self-defense as a 2nd A right. Heller did not support in its underlying decision a cache (arsenal) of high powered semi-automatic in a high rise hotel room to be fired down on some 20,00+ persons attending a concert on streets below. In dicta Heller suggested certain limitations that could, might apply with respect to the use of arms. But that was dicta. Some, perhaps many, who hailed Heller looked upon it as an absolute right despite the dicta. And some of those relied upon Heller as a means for utilizing the 2nd A as individual rights to address what they might consider as tyrannical governments, federal, state and local. Limitations vary from state to state. But the Court has not addressed since Heller a 2nd A case (except one involving a stun gun) despite efforts to expand Heller beyond the home.

Self defense can be available outside of the 2nd A (i.e., not involving "arms"), although there is no current universal definition of self-defense, which evolved over time under common law and since, with variations by statutory means. The shift in the interpretation/construction of the 2nd A is of fairly recent vintage, as noted in Cornell's article. A Daily Show comedian made reference to how quickly in the 1960s under then Governor Ronald Reagan CA adopted gun control because Black Power members had openly carried weaponry in public. The comedian told host Trevor Noah that the way to get gun controls - and fast - was to put weaponry in the hands of African-Americans.

Is it coincidence that both the originalism and Federalist Society movements quickly followed the civil rights movement that developed after Brown v. Bd. of Educ.? These conservative movements were at the forefront of the the shifting 2nd A views that led to Heller. The Heller opinion by the late Justice Scalia was based, in his mind and those of the other four Justices in the majority, on originalism. Justice Stevens' dissent for the minority was also based on originalism. More than a few originalists in academia thought the originalism employed by both Scalia and Stevens were weak.

Cornell continues to challenge Heller's bases as it ignores the concept of the Militia back in 1787-91 set forth in the Constitution as amended by the bill of rights. Cornell recognizes the concept of self-defense separate and apart from the 2nd A. (A person can act in self-defense with a gun that is illegal owned/possessed, killing someone, although perhaps technically chargeable with a weapons violation.) Maybe in time Heller can be reversed by the Court. Or the 2nd A may be amended as perhaps a convention might be considered appropriate.

Joe said...

It's a fact that the general public continues to move towards a pro-gun rights view every year. All studies show that

My general conclusion over the years is that "it's a fact" level assurance is dubious in the area of gun research. At any rate, tbh I am not aware of "all studies" here. Plus, "pro-guns rights" is vague. I think there is a broad support for some basic right to own a gun. There is also a broad support for reasonable gun regulation.

Dems in progressive strongholds.

No, Dems in general. Manchin, from West Virginia, supported a background check bill. There is a "base" that is very supportive of gun regulation. Not "gun bans." So, yes, you can accept "Heller" in some general sense. A base isn't enough to form a majority but a large part of the Democrats' coalition repeatedly have joined together on this issue. You also need bipartisan support. You can't "force" Republicans to come to the table until enough in their own party demands change.

She's the Democrat.

It is not simply "fine" for a "Democrat" trying to win a national office to say they don't support a basic right to own a firearm. Many states that Democrats have a chance to win & have won are supportive of gun rights generally. Being "against Heller" would be problematic there. She had to thread a needle some. Just what "Heller" meant is unclear. Many, e.g., don't keep loaded guns around the house to the degree that opinion allowed. And, yes, trigger locks etc. are specifically about protecting against misuse, including multiple cases of children being harmed.

You can harp on her at some point in the campaign being too cute, but that game can be played all over the place on both sides. Both sides knew what electing Clinton would mean: not banning guns as a whole, but more room for regulation. Anyway, Clinton alone had limited ability to affect gun policy without help of individual legislators and state actors. She could nominate judges who would interpret Heller more laxly and that is basically what her position really amounted to.

She threaded the needle because that is what politicians do with sensitive issues. The bottom line remains the "progressive position" was reasonable gun regulation that can fit within Heller. "Heller" turns off some of the base, so maybe she felt a need to disparage it somewhat. A misguided sentiment that very well might be part of the problem addressed by the main post on confusion on the basic facts.

And, until a bipartisan move is present major change won't occur.

Michael A Livingston said...

One of Trump's skills is getting people to say things they probably shouldn't. Repeal the 2nd Amendment is one of them. Not smart.

Shag from Brookline said...

At Prof. Saul Cornell has a post-Vegas essay "Gun Anarchy and the Unfree State." A link is available at today's Legal History Blog's "Weekend" feature. The 1st A protects what Trump says and what others say in reaction, people "shooting off" their mouths. But the 2nd A does not protect what happened in Vegas. Rather than repeal of the 2nd A, it should be properly applied to limit massacres such as Vegas and many other killings, accidental or intentional. Suicide by gun is not a 2nd A right, nor is the Constitution a suicide document.

Shag from Brookline said...

I just reread Calvin TerBeek's 5/9/17 post at The Faculty Lounge titled "Was Originalism Born In Sin?) discussing Robert Bork, the Warren Court and its decision in Brown v. Board of Educ. (1954) and the rise of originalism. TerBeek's interesting theme does not reference the 2nd A or Heller (5-4, 2008). There were only two comments on the post and they presented opposing views on the 2nd A:

"Let's take off the gloves here and leave the academic niceties aside. Some folks of bad faith didn't like "Brown" or Earl Warren so they
came up with "Originalism" to protect a White man's Second Amendment right to own a gun. A White man, of what ever mental state,
has a god ordained right to purchase an arsenal of mass death from Farm 'N Fleet...
Posted by: Deep State Special Legal Counsel | May 09, 2017 at 10:49 AM

"Yes, let's take the gloves off. Thank God for the white man. Otherwise, your Muslim black brothers would have your @ss in chains
somewhere in the darkest of Africa. Black-on-black slavery still exists you know. It was the white man who gave the world freedom. As
in the Magna Carta, the Constitution, etc. Didn't happen all at once or as soon as we might have liked, but here we are. Thanks to the
white man.
So yes, let's take the gloves off.
Posted by: Deep State Counter-Policy Reform | May 10, 2017 at 10:05 AM"

I recall learning of "original sin" in the Biblical sense and the 1787 Constitution's original sin of slavery and now a suggestion of such sin with originalism. Let us pray/prey, as the situation warrants.

Joe said...
This comment has been removed by the author.
Joe said...

"Studies would also show a small % of the population practices homosexuality. That still doesn't mean support for homosexual rights doesn't increase every year in the general population."

Practices homosexuality? One need not be homosexual to be likely to be particularly concerned about the gay rights -- family members, friends, colleagues etc. have a special personal feeling for such people not quite the same as if they own a gun and gun rights specifically was at issue.

My comment: "Study show that a small percentage of the population are behind increases in gun sales & broadly support" This is notable to me in part because merely owning a gun is often not enough for people to be against background checks and other regulations. We are talking about even a smaller group that is behind increase of gun sales in recent years [repeatedly tied to fears a general gun owner do not have] and are an important pressure group that politicians are wary about upsetting.