It is one of the great mysteries of modern American life: why do so many of us slaughter so many others at once, in cold-blood and without any provocation or legal justification? A further mystery then emerges: how can we stop it? If someone tells you that they have a definitive answer, they’re probably lying. Or delusional.
After yesterday’s horrific and tragic mass killing in Roseburg, Oregon, there will be the now-obligatory debate over gun control. Gun control advocates will call more for fewer guns and more restrictions, gun control opponents will call for more guns and fewer restrictions. And, of course, everyone will say we should have laws that “keep guns out of the hands of the wrong people” and that we should focus more on mental illness. This very same narrative repeats itself every so often in America. And all it does is produce a political stalemate, soon forgotten . . . until the next mass killing, when the cycle repeats.
Often lost in the noise (and we lose much in the noise in this country) is that we have an extensive set of gun laws in America, and ones that are regularly enforced. Set aside even all state laws, of which there are many. Even if we just focus on federal laws, the National Firearms Act contains a comprehensive scheme for regulating certain shotguns and rifles and machine guns. In Section 924 of Title 18, we impose mandatory minimum enhancements for using or carrying firearms during or in relation to drug crimes and crimes of violence, and add even more prison time under the Armed Career Criminal Act for persons with three prior convictions of certain kinds. And in Section 922 of Title 18, there is a long list of criminal prohibitions upon mere possession of firearms. In Section 922(g) alone, we have federal criminal prohibitions on possession by convicted felons, fugitives, drug addicts and unlawful drug users, persons who have been adjudicated as mentally defective or committed to mental institutions, illegal aliens, military personnel who have been dishonorably discharged, persons who have renounced citizenship, persons under court orders for stalking or domestic abuse, and persons convicted of a misdemeanor crime of violence. Minors are forbidden from handgun possession (922(x)), machine guns are forbidden (922(o)), and possession within a school zone is forbidden (922(q)). I could go on.
The problem is not that we do not regulate guns. We do. Maybe not as fully as we should, but still, extensively. The problem is not that we do not protect lawful gun possession. We do. Extensively. Not just through legislation, but in a constitutional provision – albeit a limited one – that extends to the possession of firearms for lawful confrontational purposes. I am skeptical that, in federal law, we could add much more to the list of prohibitions in section 922. Maybe the provision on possession by the mentally ill could be expanded or strengthened. Of course, I’m open to ideas on expanding the prohibitions. But I worry that adding much more to the list would begin to implicate Second Amendment concerns; indeed, it is argued that some of the existing provisions already do. We should, though, have expanded background checks, something that I do not think implicates Second Amendment rights at all and that is widely supported even among gun owners. We should have a stronger federal straw purchaser law, one that imposes harsh prison penalties for violators. We should revise and strengthen ACCA. We should make appropriate use of the death penalty that section 924 authorizes for gun crimes.
But also lost in the noise – and I repeat myself over and over on this – is the reality that as awful and as debilitating to us as these mass shootings are (and they are increasing), most day-to-day gun violence in this country does not fall into the popularized mass killing category. Most day-to-day gun violence does not involve people with mental illness. A meaningful portion of it involves gangs and other criminal organizations (take a look at what is reported in Los Angeles and Chicago, for example). Indeed, much of the day-to-day gun violence in this country involves conduct that is already unlawful. So while I support any new and sensible gun control ideas – and all good ideas should be on the table, regardless of who offers them – my worry is that, while some of that could help, it will help mostly at the margins. And it will unlikely prevent most of the gun violence we experience. We can and should impose very severe punishments on those who engage in unlawful gun violence. Gun violence, in my view, will be among the factors that keep the American death penalty alive. But prevention is far trickier. I worry deeply that we will not get a handle on preventing most of the day-to-day gun crime in our country until we change attitudes about private violence, overcome the simmering hatreds and pettiness on which aggression often feeds, enhance educational opportunities for everyone, and – it must be said – dismantle the criminal organizations responsible for so much of the gun trafficking and resulting violence that we see.
Let’s keep searching for answers and solutions. It’s not an easy problem. And anyone who tells you that they have an easy answer doesn’t understand the problem. But let us not pretend that gun crime and violence are an issue only when a mass shooting occurs. As deaths from gun violence pile up, whether it is a mass shooting at a school or an innocent child killed by a stray bullet fired during a gang turf dispute, the pressure to find those answers and solutions builds. It is convenient to blame politicians. And sometimes they deserve blame. As is often true, though, the failures are not merely those of our political leaders. If we continue to perpetuate these cycles of unjustified private violence against one another, then the failings are ours, as well.