Jeff Bishop: Debunking Some Gun Control Talking Points

Gun control is a topic nearly all people hate. Brits universally despise the notion that anyone should have a right to own a weapon for self-defense, and can barely fathom the notion that anyone would want to. Americans are split on the issue. One believes we could pass a law tomorrow mimicking Britain’s gun laws and immediately sink to British levels, with no collateral consequences whatsoever. The other believes any further regulation whatsoever is the last step on the slippery road to serfdom. Neither side wants to engage the other, which it deems to be insane (or worse, evil). That is why we almost never talk about the subject unless something horrible happens bringing it into the news.

That said, there are some popular debating points that can be conclusively deemed resolved. Each side can claim some victories. For simplicity, I use the names of the leading gun rights and gun control organizations, the NRA and the Brady Center, as proxies for the entire gun rights vs. gun control movements – with full knowledge that both movements have elements that want nothing to do with these named organizations, sometimes for going too far but usually for not going far enough.

1. “When guns are outlawed, only outlaws will have guns.”

Back in 1974, banning handguns was a thing. The aptly named National Coalition to Ban Handguns was formed for that purpose. Two years later in 1976, our nation’s capital proceeded to do just that. Chicago did the same in 1982, with several suburbs following suit. Los Angeles, Detroit and New Orleans would likely have done the same, but for their respective states’ preemption laws barring them from doing so. San Francisco, which sees itself as a special city apart from its state, proceeded to ban them anyway. New York City tightened its own regulations around that time, as well, though most of their own groundwork had been laid with their infamous Sullivan Act of 1911, which remains on the books to this day.

A turning point came in late 1982, I believe, when a statewide California initiative, Proposition 15 went down in flames. At this point it became clear that however popular handgun bans might have been in extremely large cities, they were never going to take root anywhere else. And it should have become equally clear, though for many it did not, that even local bans would be futile, as driving to another city to purchase a gun is a very minor inconvenience. By 1989, handgun banners realized they had achieved all they were going to achieve in terms of regulating ordinary handguns, and shifted their focus to affordable “junk” guns, military-looking “assault” rifles, and whatever other particular firearms they could single out as odd or unusual. Ordinary rifles, shotguns and handguns were no longer on the table. As 1994 “assault” weapon ban architect Dianne Feinstein (D-CA) sheepishly acknowledged, the votes to ban guns generally simply weren’t there. Whatever votes were there to pass the “assault” weapons ban in 1994 were long gone when the time came to renew it in 2004, many having been forced into early retirement as a result of the ban itself.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]They have proven, time and time again, that they cannot or will not remain silent mere hours after a tragedy strikes, long before anything is known about the attacker, his motive, how he obtained his weapons, or before the bodies are even cold. The gun control side will not exercise such restraint, so the gun rights crowd can no longer afford to, either.[/mks_pullquote]

By this time, the National Coalition to Ban Handguns no longer even carried that name, and its relatively moderate alternative, the National Coalition for Gun Control (formed that same year) had renamed itself to Handgun Control, Inc. in 1980, and to the Brady Center in 2001. Meanwhile, American state after American state has liberalized its gun carry laws, while our murder and violent crime rates have gone down almost every single year, while practically every country to our south has tightened its gun laws and seen violent crime (with and without guns) rise. For better or for worse, generalized gun bans are no longer on the table.

Advantage: NRA.

2. “It is unseemly to debate gun control so soon after a national tragedy. Couldn’t you at least wait until the bodies are cold?”

Personally, I agree with this view completely. There no debate we can have on guns now, a mere week after a mass murder in Oregon, that we could not just as well have had two weeks ago, or couldn’t just as well have two months from now. By the cold light of reason, we could discuss things more rationally and factually than we can while grieving. But alas, this sort of debate is impossible, since the gun control side of the debate is too heavily invested in grief. They have proven, time and time again, that they cannot or will not remain silent mere hours after a tragedy strikes, long before anything is known about the attacker, his motive, how he obtained his weapons, or before the bodies are even cold. The gun control side will not exercise such restraint, so the gun rights crowd can no longer afford to, either. It is now official: everything is a political football, especially dead children, the fresher the better. Congratulations, Brady Center, you’ve won this round.

Advantage: Brady Center.

3. The Second Amendment protects only a state or collective right, not an individual right to own a weapon.

Since the 2008 case of DC v. Heller most gun control advocates have abandoned this argument but a few diehards have not. Jeffrey Toobin, for example, claims without evidence that “for more than a hundred years” prior to 1977, the Second Amendment “conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.” He cites no basis for this claim, nor any explanation of why he choose a one-century window when discussing an amendment that had been around for almost two. Perhaps he chose that window to conveniently exclude the 1822 case of Nunn v. State, in which the Georgia Supreme Court invalidated an individual handgun ban as violative of the Second Amendment, along with the much more infamous U.S. Supreme Court decision of Dred Scott v. Sandford, which held that even free blacks could not become citizens lest they be given the right, among other things, “to keep and carry arms wherever they went.” He might have been thinking of U.S. v. Cruikshank (1876) or PresserPresser v. Illinois (1886), either of which could explain the roughly 100 year window, and either of which would have implicitly overruled State v. Nunn, but not under the militia-only theory (both held that the Bill of Rights restricts the federal government only).

The notion that the Second Amendment protects only the right of “well-regulated militias” and not of “the people” was first floated by the US Department of Justice in United States v. Miller (1939), a bit shy of Toobin’s 100+ year window, and was in any event rejected by the Supreme Court. The Supreme Court did rule, however, that “it is not within judicial notice” [lawyerese for “it has to be proved, not assumed”] that the short-barreled shotguns possessed by defendants Miller and Lawton were of a type of weapon reasonably related to a well-regulated militia and, therefore, protected by the Second Amendment. The court did not rule that Mr. Miller himself was not a militia and therefore had no Second Amendment right to assert in the first place. And there is no indication that nullificationist view was even argued, much less adopted, in Cruikshank or Presser before.

While never accepted by the Supreme Court, the “collective rights” theory of the Second Amendment did get some traction. Rejected Supreme Court nominee Robert Bork denounced the “NRA view” of the Second Amendment. In a 1990 interview with Parade former Chief Justice Warren Burger dismissed it as a “fraud.” Federal circuit after federal circuit endorsed the Orwellian “collective rights” model until the Fifth Circuit didn’t in 2001, and the DC Circuit really didn’t in 2007. By this time scholarship was virtually unanimous on the basic meaning of the Amendment, which was now commonly know as the Standard Model, and was ultimately upheld in Heller. By the time its companion case from Chicago was heard, all but one suburb had repealed their gun-banning ordinances on their own, and even the Brady Center had abandoned the view that individuals had no Second Amendment rights against the states at all. The Supreme Court ultimately ruled in 2010 as its Georgia counterpart had done in 1822, leaving us with a Second Amendment protecting exactly the same right against state and local governments as we all originally assumed it did against the federal government as well. Once the alternative “standard model” for liberals, hardly anyone argues for the “collective rights” nullification view – at least not when they know they are on tape.

Advantage: NRA.

4. Gun-free zones

Depending on how you define “mass shootings,” we either have one every day, 2 or 3 a year on average, or anything in between. By the more traditional, restrictive definition (4 or more killed other than the shooter), two such attacks in 2011 happened in public locations where no one else happened to be armed, and every other happened where they legally couldn’t have been. For years if not decades, gun control advocates have had the luxury of ignoring this issue or lazily explaining it away. Examples:

Q: What about that massacre at Luby’s in Killeen, Texas? Everyone packs heat in Texas!

A: Not in 1991, they didn’t. Not legally, anyway, and concealed carry was a felony. That incident was a catalyst in getting the law changed in 1995.

Q: Fat a lot of good that did to stop the Ft. Hood massacre in 2009!

A: States don’t control the federal government. If Nidal Malik Hasan had shot up anything but a military base in Texas, he’d have been lucky to get past 2 or 3 victims before getting popped himself.

Q: Oh c’mon, you aren’t really suggesting that mass murderers deliberately target gun-free zones, are you?

A: Not being one myself, I don’t know. All I do know is that when James Holmes set out to kill as many Batman fans as possible, he didn’t choose the biggest movie house in town that was playing the film, where he could have killed the most people. He didn’t choose the nearest thater to his home, which woudl have been the easiest to get to. He didn’t choose the farthest one away, which may have been the easiest to disappear from. He chose Cinemark, the one that proudly advertised that he, and only he, would have a gun at all.

Q: OK, fine, but Umpqua Community College wasn’t a gun-free zone. Think Progress says they aren’t, and everyone knows progressive activists never lie!

A: Um, yeah, they did. TP points to a 2011 court ruling that held Oregon’s state university system has no power to prohibit concealed handgun permit owners from carrying outdoors, while leaving intact their prohibition on carrying inside buildings where most if not all classes are held. Since then, colleges across the state (including UCC, which may not have been subject to the 2011 ruling in the first place since it isn’t part of the state university system) have incorporated such otherwise prohibited bans into their rule books.

While the gun banners are spinning hard on this one, the mere fact hat they’ve shifted their lie from “gun-free zones save lives” to “our gun-free zone wasn’t really a gun-free zone!” is nevertheless encouraging from a gun rights perspective.

Slight advantage: NRA

5. Background Checks

The current debate on background checks is one in which both sides can claim a partial victory. On the one hand, the anti-gunners have gotten more aggressive, calling for “universal background checks” (banning private sales) rather than merely “closing the gun show loophole” (requiring background checks on all sales, licensed or private, that occur at gun shows). On the other hand, much of the talk of universal background checks has supplanted talk of outright bans or even waiting periods, which were the subject of federal legislation in the 1990s. And the issue has failed to get much traction with the public since Sandy Hook, likely in part due to the fact that no background check would have prevented the Sandy Hook massacre itself, nor most other high profile mass public shootings of late (including either of this year’s two mass shootings, in Charleston or Roseburg).

Deuce.