Is there still a legal case for gun control?

The spate of high-profile spree shootings over the last few weeks, from Aurora, Colorado to the Empire State Building (where it seems most of the spree-ing was by cops), all the way back to a shooting in Arizona that killed several  and left Congresswoman Gabrielle Giffords brain damaged, has brought the dead issue of gun control back to a short, sad life. Short because the question seems to average one major article per media cycle per spree killing before being dismissed, and sad because the usual context in which gun control seems to come up these days is in the context of explaining why we won’t or can’t ever actually get it. Politically speaking, gun control is off the table and has been ever since the reactionary tide against the Brady Handgun Bill established the National Rifle Association as the final arbiter of any weapons-related legislation. Since then, the NRA has had an increasing string of successes in firearms lobbying, from the death of the DC gun ban to the expiration of the Federal Assault Weapons Ban. Recent case law seems to be just as big a hurdle to any future gun control, with probably the most decisive and strongly-worded case being the Heller decision from 2008.

But does it have to be this way? Has it always been this way? Conservative political forces and their allies have dominated the gun control debate for years now, but I for one am skeptical of the permanence of the results they’ve achieved. The general trend over the last couple of decades has been towards more or less unqualified firearm ownership rights for all Americans. While much of the Brady Handgun Bill, which was designed to institute background checks for firearms purchasers and to create several classes of citizens who would not be allowed to own guns, survived legal challenge, the central mandate of the bill has not. The bill’s mandate that state and local law enforcement officials be involved in a rigorous screening and approval process for new firearms purchases was struck down in the NRA’s legal challenge to Brady, in a case called Printz v. United States. Scalia’s opinion in that case rejected the power of the federal government to make those kinds of demands on state and local law enforcement personnel, but otherwise upheld the constitutionality of a registration scheme, and local law enforcement has followed through on the mandate with or without the Supreme Court’s permission.

So while Brady background checks have survived their de facto down-striking by the Court, subsequent gun control attempts have been rejected outright. The most famous of these is the 2008 Heller case, which rejected Washington, D.C.,’s right to ban all handgun position in the District on Second Amendment grounds, and it was a narrow leap from there to a 2010 case finding that the Second Amendment forbids state gun control as much as it does federal. McDonald relied on an uncontroversial Constitutional doctrine known as ‘incorporation,’ which is just what the Court calls it when it applies a Constitutional amendment to the states, which has been normal treatment for Constitutional amendments ever since the 14th Amendment was found to apply the Constitution to the states directly. So McDonald is uncontroversial; Heller is where the real action is at for gun control opponents. Writing for the majority, Scalia wanted us to believe that:

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

But this has not always been the case; quite the opposite, really, and Scalia’s argument here is at odds with the plain language of the Second Amendment. Relatively brief as far as the amendments go, the Second Amendment reads in its entirety:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The immediate question for those of Scalia’s persuasion is, if the Second Amendment meant to completely detach the right to gun ownership from any other obligations like militia service, what is the first half of the amendment even doing there? The Second Amendment does not give blanket endorsement to gun control, it derives it from the necessity of a “well regulated Militia” (emphasis added).

The Second Amendment does not specify what exactly this “Militia” should look like, but the differences between the Framers’ militia and the modern-day militia are sharp. When the Constitution was written, the owning of a firearm was essential to the ability of the militia to protect the citizenry because everyone who joined the militia was required to supply their own firearm. The modern equivalent of the militia is the National Guard, which is more or less the civilian military of the United States, though the executive has been empowered to assume the Guard into a national chain of command. But the modern militia has plenty of resources to equip its members with perfectly good weapons, negating the necessity of firearm ownership for the success of the modern “well-regulated Militia.”

It also does not specify the limits of the term “Arms.” In the day of the authors of the Constitution, this was hardly a meaningful objection since “arms” pretty much universally meant the single-shot small arms that were essential to prying us out of the British Empire. None of the Founding Fathers ever had any reason to worry about assault weapons being sold from booths for cash to whoever could afford it. The Founding Fathers couldn’t possibly have foreseen our ability to multiply and multiply again the destructive power of commercially-available firearms each generation. It was simply short-sightedness on their part that led them to believe that easy access to firearms would just be a normal part of life for most Americans, who at that time were farmers who needed weapons to protect their livestock more than they needed them to protect their freedom.

Surprisingly, and contrary to the trend of recent Supreme Court jurisprudence, past Courts have been very open about these issues with the Second Amendment. Far from the free-wheeling guns-for-everybody attitude of the conservatives on the court today, the Court in 1939 used the opportunity of a man prosecuted for his ownership and use of a sawed-off shotgun to articulate this startlingly rational set of restraints on national firearm ownership:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

This line of argumentation is much more faithful to the actual text of the Second Amendment, which infers gun rights from militia rights instead of the other way around, than the conservative mainstream line of argument on this point. Hopefully the Second Amendment jurists of the future will look back to the wisdom of the court in this decision instead of resigning themselves to the rulings of a conservative bloc that is the majority in the Court but that has always been the minority in legal scholarship for answers to the questions raised by this recent string of mass gun-related homicides.

Another important point to remember is that while Congress’s purview over the sale or transportation of goods is generally limited to “interstate commerce,” an assault weapon sold anywhere has already traveled a good ways down the stream of commerce. The gun used to commit the Columbine High School massacre, for example, the Tec-9, was designed in Sweden, sold to a Miama wholesaler, then to a sporting goods store in Illinois, then to a Colorado dealer, who sold it to proxies of the Columbine shooters at a gun show, and then finally into the hands of the shooters themselves. That gun traveled through at least four different parties before being used to murder children. It is virtually never the case that a weapon used in such a massacre is bought legitimately, because it is simply easier to trace. Almost by definition, the kinds of guns targeted by gun control advocates move through interstate channels because the people who want to use those kinds of guns to kill innocent people prefer guns that have a convoluted distribution history.

The political will for gun control is almost non-existent because nobody has the courage or the wealth to stand up to the well-funded and well-connected National Rifle Association. But with the death toll rising from shooting after shooting after shooting, the public’s thirst for cheap and plentiful firearms will hopefully give way to a more rational evaluation of just how many machine guns the Founding Fathers intended just anybody to be allowed to own, and just how much help the militia needs from the kinds of people who are actually buying private deadly weapons.


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