Thursday, March 01, 2018

Simple Politics and Gun Control

by Neil H. Buchanan

What kind of gun legislation would result from straight-up democracy?  That is, if there were no constitutional constraints and our system were allowed simply to run its course through normal political competition, what would our gun laws look like?

It has been barely more than two weeks since the Parkland killings turned the U.S. political debate on its head.  Some Republicans seem to be rethinking their once-politically-safe genuflection to gun absolutists, and at least for now, many large businesses are moving in the right direction.

Donald Trump, of course, has said all kinds of things, most of them ridiculous (including his "confiscate first, due process second" approach to gun control); and even though he recently said some things that might be cause for optimism, there is every reason to believe that he will backtrack and ultimately side with the right-wing extremists.

Even in this new and unexpected chapter in the story of American gun politics, I have said repeatedly that I still do not expect anything big to change.  I confess, however, that every day I have become slightly more optimistic that at least a few minimal things might actually change for the better.

But again, the question I want to ask here is what would happen if the country suddenly stopped viewing the gun debate as a constitutional question and simply let politics play out.  Where would we end up?  My best guess is that we would stop far, far short of adopting anything resembling serious gun control measures.

There is good reason that the phrase "tyranny of the majority" resonates across the political spectrum.  Although we all would like to believe either that our views are already widely popular or that it is possible to convince people to adopt our (obviously logical and compelling) views through fair political means, there are some things that we would not want to put at risk through simple majoritarian rule.

The political left embraces counter-majoritarianism on issues like women's reproductive rights, gay civil rights, and criminal justice reform.  We are hardly unaware of the reality of what could happen -- indeed, what has almost always happened -- when the political process is allowed to have its way with the lives of discrete and insular minorities.

Critics from the right -- and even some among our own ranks -- often criticize us for relying too much on courts, but that critique can only make sense as a matter of degree.  That is, no one could seriously argue that American liberals should simply abandon legal challenges to laws that arguably violate the Constitution, but it certainly is true that relying too much on the courts can cause people to fail to pursue political solutions that might be available.

Among those on the right, recent counter-majoritarian arguments include the puzzling and novel claim that the Affordable Care Act forced people to engage in commerce and thus represented an unacceptable violation of the Commerce Clause -- a view endorsed in dicta by five justices in NFIB v. Sebelius (2012), which nevertheless allowed the ACA to continue as an exercise of the taxing power.

I am hardly the only person who was unable to see what exactly the right-wingers were worried about as a matter of constitutional slippery slopes.  To conservatives' avowed concern that a paternalistic government could "force people to eat broccoli for their own good," one response on the left was, in essence: "American political realities would never allow that to happen."  The parade of horribles that we definitely saw with, say, Jim Crow laws for nearly a century is simply impossible to imagine in a world in which the Commerce Clause allows Congress to regulate economic activity by means including mandates to purchase health insurance.

Once the debate has become framed as a constitutional battle, that response can feel inadequate.  What could happen, if the constitution is not there to stop the worst excesses of politics?  But as important as line-drawing questions are, they should not cause us to forget about the democracy part of constitutional democracy.  Most of what happens in U.S. politics happens within limits not set by the constitution but by social realities.  We would never see Congress mandating broccoli eating simply because the people do not want it to do so.

Similarly, anti-government activists on the right fulminate about how egalitarian liberals would supposedly like to tax rich people so heavily that there would be no more rich people.  Some right-wing extremists have even invoked the Holocaust as a comparison, saying that taxing "the 1 percent" is inherently evil because it involves 99 percent of the people using democratic processes to oppress the helpless rich through wealth taxes and progressive income tax brackets.

Yet even Bernie Sanders, the self-described "democratic socialist," included in his platform for President in 2016 an estate tax proposal that would have reduced the amount of wealth exempt from taxation from $11 million per estate to $7 million.  This in no way resembles confiscatory taxation.  (Republicans, meanwhile, increased it to $22.4 million with their recent tax law.)

So even when we are not operating under constitutional constraints, we often find the contested territory in U.S. politics to be decidedly conservative.  Yes, the political parties disagree, but there is little to no indication that there is anything approaching a majority to support extreme leftist measures across a whole range of policy issues.

What about guns?  Last week, Michael Dorf wrote a pair of columns in which he described how the Supreme Court's conservative majority misinterpreted the Second Amendment in the Heller decision.  Noting that Justice Scalia's majority opinion in that case still leaves open a large space for gun control legislation, Professor Dorf nonetheless pointed out that people on the pro-gun right can point to Heller as proof that there truly is an individual right to bear arms, conveniently omitting the fact that Scalia's opinion in no way foreclosed a wide range of gun control measures.

What would have happened if Heller had been rightly decided?  That is, what if the Court had said, in essence: "Gun control is simply not a constitutional issue.  Now go hash this out in the political branches"?  Would Hillary Clinton have taken all of our guns away by now?

Obviously, the answer is a resounding no.  For better and mostly for worse, ours is a country in which people think of gun ownership in ways that defy logic and result in political pressures to allow far more guns to be in circulation than any other democracy would ever allow.

Consider a post-Parkland op-ed by The Washington Post's Kathleen Parker.  Even though she is a decidedly conservative columnist, she writes harshly about NRA spokespeople and Republican politicians like Texas's Senator Ted Cruz, rightly castigating them for their callousness and willingness to turn everything into an attack on the media.  Parker presents herself as a reasonable, non-fire-breathing right-leaning thinker who would consider "sane" gun control legislation.

Even so, Parker lays out her bona fides by referring fondly to the importance of guns in her life, saying that she was writing "as someone who grew up with guns; lives in a house with guns; knows how to shoot and is good at it; doesn’t object to hunting for food; has friends in the NRA."  (Notably, Parker then adds: "My father, a lawyer, once told me in confidence that the only law he would never obey was to register his guns. (Because then 'they' can collect them.)"  The insurrectionist view of gun ownership is thus hardly limited to Wayne LaPierre's fever dreams.)

Where does all of this lead?  Parker accurately describes the pro-gun extremists' view of the world: "We’re either on the slippery slope to serfdom or everybody gets an AR-15."  This is intriguing.

Is it fair to say that the consensus view among those who advocate some limits on guns would put us on the slippery slope to serfdom?  Not at all.  Although I am not among them, many people in this country think that hunting is a wonderful hobby, and even liberal politicians go out of their way to talk about how they would never do anything to threaten the killing of animals for fun.

Moreover, the most extreme gun control proposals involve bans on high-capacity magazines, waiting periods, and (at most) bans on certain types of weapons.  This is not a confiscation regime in the making.

But perhaps those middle-ground proposals truly would be the proverbial first step down that slippery slope.  Without at least the Heller view of the Second Amendment and the vigilance of the gun absolutists, would people like Parker soon join with Michael Bloomberg and ban all guns?

No, but even if they did, that is not "serfdom," unless one either simply defines gun ownership as an element of freedom itself or adopts the insurrectionist view that the government will turn us all into serfs unless the people have guns.  Somehow it always comes back to this circular view that people have to have guns to guarantee that they can have guns.

By contrast, is it fair to say that the consensus view on the pro-gun right is that "everybody gets an AR-15"?  Not literally, but close.  The "good guy with a gun stops a bad guy with a gun" view, after all, at least says that every situation will be better if more people are armed.  And the right's stated desire to arm teachers and/or turn schools into armed fortresses certainly is based on the belief that everyone should be encouraged to carry guns.  (It is even a dream among some on the right to force people to own guns.)

In the end, I would welcome a straight-up political competition over gun laws, without constitutional overtones.  As a matter of outcomes, I think that such a debate would move us in a good and life-saving direction.  But I have no delusions about how far things would go in such a situation.  Too many Americans buy into gun mythology in its many facets for me to imagine that we would be on a slippery slope to becoming a zero-gun nation.

Whether we would like that outcome or not, allowing democracy to work in this country would still leave us with a whole lot of guns.


Larry Lennhoff said...

By contrast, is it fair to say that the consensus view on the pro-gun right is that "everybody gets an AR-15"? Not literally, but close.
Not even close, until that sentence is changed to 'Every white guy gets an AR-15.' The one circumstance in which the NRA has been noticeably silent is in the defense of black men who are involved with guns. They said to wait for the evidence after the Philando Castile shooting and ultimately said he was not legally carrying his licensed gun because he had marijuana with him at the time.

Joe said...

The Philando Castile shooting was telling.

I don't think in this country we can fight any major political debate "without constitutional overtones" to some degree. There simply are too many factors here -- due process, federalism, equal protection etc. -- even beyond the 2A that will arise here. ACA underlines this including how it was crafted, discretion given to states etc.

The "whole lot of guns" is realistic & some concern about gun owners is going to be good policy even if one doesn't like guns. How many and how they will be regulated is open.

Shag from Brookline said...

Off topic: Go Fish, Stanley, that is, with his essay at Balkinization on the role of corpus lingus in originalism. Perhaps Eric may pick up on this with a post at this Blog. I generally don't drink alone (even though I'm alone a lot) and I generally don't laugh when reading legal essays, but Fish has a way with words that caused me to smile a lot. Perhaps corpus lingus is delicti.

Close to topic is Joseph Fishkin's post at Balkinization on certain aspects of post-Parkland massacre, especially references to libertarians' self-help views on guns and the 2nd A that led to a takeover of the once sportsman NRA.

Joe said...

Off topic: Noticed there is a replay (it's on the website too) of a talk by Paul Finkelman on his new book, "Supreme Injustice: Slavery in the Nation’s Highest Court" on C-SPAN today.

On this topic: as Shag and others know, there are lots of stuff written about the 2A and guns in general, often covering history of regulation. I referenced Saul Cornell (which the evangelical anti-Trump historian John Fea did as well recently on Twitter). Adam Winkler, Mark Tushnet, Mark Waldman and others wrote books covering the topic in a way that shows an "originalist" approach would support both some right to firearms but also a range of regulations. Prof. Segall would not be surprised at this. I also read books by people like Stephen Halbrook with a more conservative take on things as well.

History only takes us so far here and it is a developing thing -- the Justice Kennedy approach there is both appropriate and normative. But, it is both helpful and important to the average person. I hope the path to sane gun regulation obtains some use from it.

Joe said...

Michael Waldman.

Also, Justice Alito referenced "Parkland Strong" as a hypo in this week's oral argument on political apparel at polling places. Seems justices are paying attention.