A conversation with a close friend made me think that, now that we are a few days removed from San Bernardino, a post on recent events might be appropriate. The NYT offered an historic editorial today on gun control – historic because it appeared on the front page of the paper. In it, the Times makes a powerful case for new gun restrictions and laments what happened in the Senate on Thursday, when the Senate voted down amendments that would have prohibited people on the Terror Watch List from possessing a firearm, expanded background checks, and created a new straw purchaser prohibition. As I have said for quite some time, I support each of those proposals in some form. I will address the Senate vote in a separate post. I think the Times undersells the constitutional text and devalues the unique considerations of international terrorism, but on its substantive critique of inaction on gun violence, the editorial makes a serious argument.
But, as often happens, both sides of the gun debate have erred this week.
Quite apart from peddling the absurd notion that people cannot think of and pray for the victims in the absence of new legislation, many of those who side with the enhanced gun control position oversimplify the matter and ignore the reality (however unfortunate they may think it) that the Constitution protects individual gun rights (though I do not think any of the proposals above implicates the Second Amendment). Quite apart from the Second Amendment, there is also a long history and tradition of lawful self-defense that, like it or not, might require the use of a firearm. The Left has been focused on the gun side of the massacre in California, but they have largely downplayed the terrorism side.
At the same time, gun rights advocates commit their usual error of absolutism and, in their zeal to defend gun ownership at almost all costs, ignore the realities of day-to-day gun crime. The hyper focus on the terrorism aspects of San Bernardino should not obscure the need to address day-to-day gun crime, which may not involve using violence as a means of political change, but instead involves attacks based on things like gang disputes and heat of passion, where killing is made easier and more likely by access to firearms. It is one thing to value the Second Amendment; it is quite another to reflexively invoke the Second Amendment every time that gun crime is raised as a public problem. No intelligent person can deny that gun violence is a problem in our Nation.
As it happens, the murders in California appear to meet at the intersection of terrorism and gun crime – it is sensible to talk about both, and their intersection. But we also must keep terrorism and gun crime in the proper perspective; they are not the same thing, and may require different legislative and executive approaches, even as some approaches to each may overlap.
Beyond this, the Times editorial places the paper in an unusual position. “It is not necessary to debate the peculiar wording of the Second Amendment. No right is unlimited and immune from reasonable regulation,” the editorial says. First, this argument rather begs the question. One of the major questions in Second Amendment litigation today is whether restrictions on gun rights can merely be reasonable, or whether they must be justified by a more compelling rationale. District of Columbia v. Heller clearly articulates several limits on gun rights, limits you hardly hear about from gun rights supporters, but which are as much a part of Second Amendment law now as the recognition of a fundamental individual right to keep and bear arms. But Heller also seems to close the door on mere rationality for restrictions that cut at the heart of the Second Amendment right, though it is silent as to what the higher standard must be (is it a balancing test? Is it strict scrutiny, requiring a compelling interest?). Has no one at the NYT been following this debate?
But second, and perhaps more problematic for the Times, do the editors really believe this statement? The next time Congress or one of the States try to implement a restriction on abortion rights, will the Times editorial page defend the restriction on the ground that “no right is unlimited and immune from reasonable regulation?” I cannot imagine that the Times would make this argument with respect to most other constitutional rights. And remember, the rights to abortion, contraception, and marriage, among others of their kind, are mentioned nowhere in the Constitution. Gun rights – for better or worse – are. And just as the Supreme Court has said that abortion rights, contraception rights, and marriage rights are fundamental, so, too, has the Court said that Second Amendment rights are fundamental.
I am not a defender of an absolute – or even very broad – reading of the Second Amendment. But there is a big difference between rights that are explicitly included in the text and those that have no foundation in the text, or in the history and traditions of the American people.
Still, the Times, and other supporters of gun safety and crime legislation, make a serious argument. I wish the Senate had behaved differently this week. As I hope I have made clear time and again, I take a back seat to no one in my respect for the Constitution, and I am confident that adopting these proposals would have done it no harm. The question is not whether we have gun rights or gun control. We can have both. The question is whether, in a legal system committed to some meaningful protection for gun ownership, we will continue to have such pervasive gun violence.