After every mass shooting, we seem to spend equal energy on lip service about remembering the fallen, and political attack or defense. Maybe that’s inevitable – like the inevitable calls to do something about guns. A few people will trot out the old “I wouldn’t mind if we banned guns entirely” – cognizant or not of the legal and practical impossibility of that. Many others, seeming to sound more measured, more reasonable, will call for more limited new gun control initiatives. Some will use the opportunity to push for their pet gun control measures, regardless of whether those things have any relation to the current tragedy. (For example, Seattle’s Mayor McGinn once again calls for action on gun shows and to eliminate state preemption – even though there’s no evidence that gun shows or hamstrung local authority played any role in the Newtown massacre. No matter; for some, blood is for dancing in, for exploiting.)
The discussion is almost always accompanied by a discussion about how we need to do something about the mentally ill. It’s undeniable that in many of these cases, the shooter is truly psychotic; known or strongly suspected to be so by many around him; and yet free from institutionalization because we just couldn’t be sure. Valid points are there to be made on this front: It seems to me that each of us has a moral, if not a legal, responsibility to do what can be done when a family member is seen spiraling towards that abyss. Yet like the right to bear arms, the rights to liberty and due process are constitutional here. That’s not just a legal term; these are fundamental ingredients of what it is to be American. Not all psychotic murderers-to-be can legally be institutionalized. Not all are identified as such. And not all mass murderers are legally insane. (It remains to be seen whether Adam Lanza is.)
So the mental health discussion is worthwhile. It may bear fruit. But will talk of gun bans do the same? If our goal is to reduce the incidence of these massacres, is even talking about gun bans a realistic way to get there? I say no – obviously not. Here’s why.
That darn constitution.
Think I’m talking about the Second Amendment? I am, but that’s not all I’m talking about.
But to get that bit out of the way: The Supreme Court has, twice in the last five years, clearly ruled that Americans have an individual, constitutional right to keep and bear arms for purposes of self defense. In District of Columbia v. Heller, the Court struck down D.C.’s prohibition on possession of handguns (even in the home), along with its requirement that all guns (i.e. the long guns – rifles and shotguns – not banned) be kept unloaded and disassembled or bound in unusable condition by a trigger lock, as violating an individual’s right, recognized by the Second Amendment, to have and be able to use guns for self defense. Then, in McDonald v. Chicago, the Court applied this ruling to the states under the Fourteenth Amendment. This is the law of the land. You may know someone who smugly asserts that the Second Amendment was just a general statement of the fact that American citizens could form a militia. They’re wrong; the Supreme Court says so. They’re as wrong as those who say the Constitution supports no privacy-based right to abortion – because the Supreme Court says so. Full stop.
This means, obviously, that guns cannot be banned. Under Heller and McDonald, handguns cannot be banned. Guns “in common use” by citizens cannot be banned. Today, this includes not only handguns, but also semi-automatic rifles (including those with largely-aesthetic characteristics such as pistol grips, flash suppressors and telescoping stocks that have no effect on firepower but nevertheless qualified them as “assault weapons” under the 1994-2004 ban). So, one who thinks the answer is to ban all guns, or even to ban handguns or ban “assault weapons,” needs to get over that thinking. You might as well wish for all bad people to disappear: It’s about as realistic.
Some might argue I’m overstating this. Stare decisis aside, they’ll point out that even a small shift in the Supreme Court’s makeup could have had Heller going the other way and McDonald never filed. And such a shift could have those decisions reversed by a future Court. Then the ban’s on!
Here’s where another provision of the Constitution enters the picture. With over 300 million guns in civilian hands in America, and with guns being pretty durable machines, it’s obvious that even if an outright ban on new guns was possible, this would have no impact on the prevalence of gun ownership and use in America for a very, very long time. For a ban to be effective, you have to confiscate those 300 million guns already out there. Ready to pay for that?
Meet the Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
If you want to take back all the guns, not only do you have to offer “due process,” you have to pay for them. What does that look like? Let’s see: I have guns that range in present value from $125 to $2000 or more. The average value of my guns is almost certainly $500 or more each, but for arguments’ sake, let’s say the average over all of those 300 million guns is more like $200. That’s $60 billion. Do you think the U.S. government is ever going to spend $60 billion (or, likely, far more) to compensate gun owners for taking their property? Did that happen during the 1994-2004 assault weapons ban? If the solution is little more than fantasy, is it worth bringing up again, and again, and again?
“Okay, then let’s amend the Constitution.”
Sure, we could knock out the Second Amendment, and build in an exception to the Fifth Amendment for gun confiscation, by simply amending the Constitution. Not so fast – literally. The last amendment was ratified in 1992 – just 203 years after it was proposed. The one before that – establishing age 18 voter eligibility – was adopted over 40 years ago.
Of course, both of those were seemingly noncontroversial at the time of ratification. After all, ratification requires approval of three-fourths of the states. Proposals as seemingly innocuous as equal rights for women and voting rights for the residents of the District of Columbia failed. You know all those “red states” – say, the 24 states that Romney won? They’re not going to ratify repeal of the Second Amendment, or the takings clause of the Fifth Amendment. Ever.
Putting aside the objective silliness of focusing on inert objects rather than the sentient beings that decide how to use them, crying “I hate guns and think they should be banned” serves only to demonstrate the speaker’s complete failure to think the matter through. It’s an empty emotional reaction that demonstrably adds nothing whatsoever to meaningful discourse about how to reduce the incidence of mass killings. The fact is, you can’t ban all guns. Talking about banning all guns as if it’s a realistic solution is a waste of time and will not save a single life.
