The President was on television recently stumping again for his gun control agenda. He spoke in his favored repetitive mode except for one sort of new flourish, which was the acknowledgment that there are good people on both sides, and we all need to walk a bit in each other’s shoes. This advice actually might illuminate our way through the coming teeth gnashing-debate about the Senate’s vote on expanded background checks, among other things.
The President has held two news conferences in three days commenting on the coming wave of gun control initiatives. His presentation has been emotional and properly reflects the anguish that we all feel for the victims of gun crime. It also has been a dazzling display of sophistry. I say that because the President is smart. And if he were not smart, I would say that, so far as his gun ban proposals, his comments were a profound display of ignorance.
Responding to the run on guns precipitated by the preliminary proposals floated by his team, the President said that the motivation must be mainly financial. Callous capitalism, that other great evil, had prompted unnamed villains to gin up fear of gun bans in order to make profit. The truth is far more basic.
Everyone here is seeking the best route to personal security. Gun people calculate that within the window of imminent threats government is incompetent and they must protect themselves. From the rhetoric, you would think that gun owners or at least NRA members do not have families and children that they love and want to protect. That of course is absurd.
These people realize the limits of government and have prepared to protect themselves. Private firearms are central to their approach, and that drives the recent run on guns (and those following Obama’s two elections). If you believe you will lose something essential to one of your core needs, you will scour the market and buy up what you can. It does not require blandishments from profiteers.
We now have a view of the new gun control proposal that some have labeled Diane Feinstein’s Grand Plan. Grand? Feasible? Passible? That remains to be seen. What is plain and predictable is that Feinstein’s proposal illustrates the structural inadequacy of supply control policies that attempt a purely public response to an intensely private crisis.
The impulse here is the horror in Connecticut. A moment’s reflection shows that Feinstein’s plan is basically non-responsive. The main worry from Connecticut is not that an incomprehensively mad, damaged (one searches for something more here) young man, killed with an AR-15. At one level we all know that virtually any sort of firearm and a variety of other deadly weapons are easy substitutes against the helpless.
But that is a difficult thing to say in this climate and it does not satisfy people who are hurting. And that hurt is very much a driver here. The pain from Newtown is intense. Many people desperately seek something to ease that pain and affirm that our society, our culture, are not irretrievably off the rails. For those under the delusion that the state can stop imminent violent threats, Feinstein’s supply side gun control proposal will have appeal.
Generally there is no need to respond to absurdities. Ignore them and they wither away. The temptation is to dismiss Jason Whitlock’s comment that the NRA is the new KKK as just such a thing. If you have not been following this, Whitlock’s wisdom on firearms policy was invoked by Bob Costas and that has given him a platform to share more of his deeply flawed insights.
The worry is that it takes a certain amount of cultural literacy to recognize an absurdity, especially when it is given a veneer of legitimacy in print and on the airwaves. This is a particular concern on issues of firearms policy where, as I demonstrated in my last post, many people hold wildly inaccurate views of the basic facts.
Presumably the suggested equivalency between the NRA and the KKK is a commentary on the view that the Second Amendment protects a substantive individual right to arms and that owning firearms is a rational choice and legitimate exercise of personal autonomy within our political system. The implication is that this choice should be no more appealing to Blacks than membership in the Klan. (Actually it’s even worse, as Whitlock seems to suggest the NRA, or some unnamed co-conspirator, is also responsible for the illegal drug trade)
At the risk of stating some obvious things, I want to respond to Bob Costas’ recent comment about the failings of “our current gun culture”. Costas endorsed without reservation, indeed just read from Jason Whitlock’s critique of the murder suicide deaths of NFL player Jovan Belcher and his wife.
“Our current gun culture, “Whitlock wrote, “ensures that more and more domestic disputes will end in the ultimate tragedy and that more convenience-store confrontations over loud music coming from a car will leave more teenage boys bloodied and dead.”
“Handguns do not enhance our safety. They exacerbate our flaws, tempt us to escalate arguments, and bait us into embracing confrontation rather than avoiding it. In the coming days, Jovan Belcher’s actions, and their possible connection to football will be analyzed. Who knows?”
“But here,” wrote Jason Whitlock,” is what I believe. If Jovan Belcher didn’t possess a gun, he and Kasandra Perkins would both be alive today.”
Retired Justice John Paul Stevens was recently in the news commenting on the right to keep and bear arms that was affirmed in the Heller decision, where he dissented. Speaking at the Brady Center to Prevent Gun Violence, Stevens said he is surprised Congress has largely sidestepped policy debates over “the damage that is done by the unregulated use of firearms.” Referencing shootings in Colorado and Wisconsin Stevens lamented, “when an issue is a subject both of such importance and such widespread discussion, the fact that Congress doesn’t address it, I find mind-boggling, to tell you the truth.”
In my last post I criticized the emerging Second Amendment standard of review and specifically the decision in Heller II, to channel into “Scrutiny Land”, a straightforward gun ban question that might have been decided under a more objective common use standard. More broadly I questioned whether scrutiny analysis is a true substantive filter or a screen for something less savory.
In this post I consider another possible standard of review, the undue burden standard from the abortion cases, and use it to sharpen my earlier point about the common use standard.
The developing standard of review under the Second Amendment holds important lessons about the judicial administration of individual rights. When the Supreme Court affirmed the individual right to arms in District of Columbia v. Heller (2008) it suggested among other things that the Second Amendment protects firearms in “common use”. This invoked the longstanding view that militia as referenced in the prefatory clause, equals the body of the people, bearing their own private arms in common use at the time. I and others speculated about the boundaries of this nascent standard. But it seemed to allow relatively objective treatment of a core category of questions.