Guns and More Guns

by Michael Liss

I don’t know a lot about guns.

I live in New York, which has comparatively restrictive gun laws, I don’t own any, I don’t hunt (and didn’t grow up hunting), and I wasn’t in the service. I don’t have the emotional bonds that others who grew up around them might. The entire sum of my personal experience was several years of summer-camp riflery practice: .22 caliber single-action rifles that might have been previously used in the Boer War. We marched them over to a “range” consisting of a shack with mattresses on the floor, a lot of tree-stumps, and a contraption with pulleys and clotheslines to move the targets, and competed for NRA sharpshooter patches.

That is just about my last firsthand memory of guns, so, to reiterate, I just don’t know very much about them. I also can’t tell you about makes, models, types; whether a particular firearm is an “assault weapon”; or which one (or six) John Wick would pick. As I can’t speak knowledgeably about guns themselves, I’m going to stay in my lane as a lawyer who writes about history and politics, and talk about guns and gun control in that context. In doing so, I expect to irritate virtually everyone who reads this.

First, the Second Amendment exists. It doesn’t matter whether you or I agree with it—it’s there. We can argue about what the Framers intent was when they wrote it, or the intent of the voters of the States that ratified it, but you can’t wish it away. This is not an endorsement of unlimited guns in every hand and every place, and it is certainly not a moral judgment. It is just a reflection of reality. When government acts restrictively on guns, it takes something from gun owners, and the entire legal analysis from that point forward hinges on whether it is taking too much.

Second, only the Supreme Court can authoritatively tell us what the Second Amendment means. In 2008’s District of Columbia v. Heller (applied to the States in 2010’s McDonald v. City of Chicago), it did that. Heller, for the first time, split off the “militia” from the gun, and recognized an individual’s right to possess a firearm for traditional purposes such as self-defense. On the other side of the equation, Justice Scalia, who wrote the Opinion, was clear that Heller was not a blank check: “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Again, it doesn’t matter what any of us think, or wherever we might be on the spectrum. Heller indicates the potential guardrails. The debate over gun ownership is essentially over, and the focus has shifted towards the Constitutional viability of what I’m going to label “who what where” limits. The Court could hold the Heller line, and give some leeway to governments in “who what where” restrictions, or it could take an activist approach, invalidating initiatives that many people would find reasonable. We won’t know until relevant cases come before it.

Third, the only ways to change what the Second Amendment says (or, what the Supreme Court says the Second Amendment says) are either to amend the Amendment, or change minds and/or Justices. The chance of amending it has got to be close to zero (the math is almost impossible, a 2/3 vote in both houses of Congress, and ratification by 38 out of 50 states). As to possible changes in or to the Supreme Court, suffice it to say the Second does not appear to be in imminent danger.

Fourth, public opinion (which generally supports more restrictions) is not a leading indicator of substantive future legislation. As painful as it is to acknowledge, even mass murder doesn’t really move the needle. Tragedy spurs talk, not action. At first glance, this would be counterintuitive; in a democracy, you would expect elected officials, ostensibly answerable to the public, to reflect broadly held views. Yet, there is a good argument that elected officials do reflect the views of their constituents, even when failing to enact any restrictions at all. Larry Sabato of the University of Virginia notes an intensity gap between the Second Amendment purists, who often are single-issue voters, and those who support more restrictions, but place those desires into a broader context of multiple policy interests and/or simply Party preference. To put it bluntly, it doesn’t matter if 80 percent of the country says it supports universal background checks—if most of those within the 80 percent are not prioritizing the issue, they are effectively agnostic.

Nothing better shows that than the web of current legislation, particularly on the issue of who can carry (data from the Giffords Law Center). Let’s talk about some numbers:

All 50 states allow some form of concealed carry, and only California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island are may issue states, where local authorities have significant discretion in the granting of permits. All the rest either are without restrictions or are shall issue, where, unless the applicant is under a disability (usually a felon or someone adjudicated as mentally ill), there is no discretion.

All but five states (California, Florida, Illinois, New York, and South Carolina) generally permit people from openly carrying handguns in public places—and 31 of those allow the open carrying of a handgun without any license or permit.

You might assume there would be more restrictions on long guns? Not materially. 44 states permit the carrying of a long gun in public. And, as to “what” someone might walk around with, there are some very serious long guns out there, whether they can be called “assault weapons” or not. Take a look at this fascinating interactive display put together by the New York Times, and marvel at the creativity of the gun-manufacturing industry in reimagining what might have been restricted. Now think about crafting effective legislation around them.

In light of Heller, it seems just about anyone can own and carry. “Who” can’t? Only those relative few who are statutorily prohibited from owning them. But, while felons and the mentally ill can’t legally carry a gun, oddly enough they can easily (if illegally) buy one, without doing anything exotic, and without the seller doing anything illegal. This is the so-called Gun-Show Loophole, which exempts private sales from the requirement of doing federal background checks, so long as the seller doesn’t know or have reasonable cause to believe the purchaser is disqualified.

Now we’ve talked about “who” and “what”; let’s talk about “where.”

“Where” is a little more complicated. Federal law prohibits a person from knowingly possessing or attempting to possess a firearm in a federal facility, including post offices, the Capitol Building, and in “sterile areas” of airports. Guns may be carried onto planes, provided they are unloaded and stored away from the owner. The federal law known as The Gun-Free School Zones Act (“GFSZA”) also prohibits any person from knowingly possessing a firearm at a place the individual knows, or has reasonable cause to believe, is a “school zone.” Except, there’s one rather large loophole that renders the Act mostly toothless: individuals with same-state-issued concealed carry permits are not prohibited from taking their guns into a school zone.

Of course, states can (and often do) have their own “where” regulations, just as they have some variations in their “carry” regulations. Perhaps this is the template for a possible 10th Amendment solution, provided, of course, that the more restrictive states don’t exceed Heller limits? It’s a clever argument with a lot of superficial appeal (if you can ignore the porousness of borders). But a closer look at extant legislation, across the states, shows a pattern with a purpose—a patchwork quilt of regulations, and an enormous number of exceptions, all fostered by gun lobbyists, who, like the tech people at the gun manufacturers, stay ahead of the curve.

An excellent example of the sophistication of the gun lobby is a long-time NRA goal, smartly packaged as a “national driver’s license for guns.” This is the Concealed Carry Reciprocity Act of 2019, introduced as H.R. 38 in the House, which already has over 150 cosponsors. A similar Senate bill, S.69, introduced by Texas Senator John Cornyn, has 37 cosponsors. The concept is deceptively simple. If one has a concealed carry permit (or is qualified and comes from one of the seven states that do not require a permit), one can concealed carry anywhere. The bills also authorize that person to ignore the GFSZA and carry or possess a concealed handgun in federally owned lands that are open to the public.

What is wrong with a little federally mandated reciprocity? Amongst like-minded states, maybe nothing at all. But the devil is in the details. Reciprocity takes away a state’s ability to apply its own licensing criteria to out-of-state residents. A guy from Texas with a concealed carry permit who might never have qualified in New York would be free to go visit the Big Apple, gun in holster, and hang out near a schoolyard, no further questions asked. So much for the 10th Amendment.

Last week in 3 Quarks Daily, Scott F. Aikin and Robert B. Talisse wrote about the pejorative use of the word “politicization” by those who want to stifle discussion as a means of maintaining the status quo in the gun debate. It can be a very effective tactic, when even persuadable people feel an urge to let the victims’ families have a chance to bury their dead. But if each incident is followed quickly by another, when do you talk about it? And how do we separate politicization from politics when politics (the threat of the ballot box) is only the point of leverage the public has?

We have to engage in politics, but it has to be realistic politics. There are many people in this country who are true believers in the Second Amendment. El Paso is not going to shake them; if anything, it will reaffirm their sense that they need their guns. They believe it, and they expect those who represent them to support them. I suspect that any Whip Count in either the House or Senate would show a sizable contingent of un-movables. Still, they must be engaged with respect, acknowledging the genuineness of their feelings. There is something that is often missed in the debate: not everyone who wants to own guns adopts the caustic approach of the NRA.

One more truth: There is no one solution that is going to prevent the possibility of mass murderers getting their hands on tools of mass murder. Even if you tighten the Gun-Show Loophole, there will still be black-market guns, untraceable guns, and “ghost” guns manufactured from parts bought (legally) off the internet. The goal of more regulation has to be the reduction of gun-related deaths. In this country, for certain, it will never be the total elimination of them.

With that as a backdrop, is there a reasonable possibility of meaningful, material change? Only if there is enough pressure on the rest of the electeds from the people they care about (their constituents and campaign contributors, not a bunch of liberals from New York and California) to make them perceive risk either to their jobs, or to party control of the Senate and/or Presidency.

There might be faint signs of that now. Orwell’s Winston Smith said, “if there’s hope, it lies in the proles” but for things like this, if there’s hope, it lies in the suburbs. The 2018 Midterms showed a worrying drift of the formerly reliably Republican suburbs towards Democrats. Those folks are likely to support “who” background checks and more “where” restrictions—such as schools, libraries, and other public buildings where they and their children are likely to go. The unknown factor is how much pressure they will bring to bear on the candidates.

More importantly, for Republicans, what does the Wild-Card-in-Chief want? He is entirely focused on 2020, he likes meetings where he can be the closer, and he has an intense grip on his base. If he gave a Trumpian thumbs-up on something like universal background checks (Ivanka is field-testing the idea), it could give other Republicans cover against the hurricane. The problem is, they also know the President can be a little inconstant. None of them want to get ahead of him (or rely on him staying ahead of them) and find themselves alone on a rapidly melting sheet of ice. While it’s never safe to predict anything with Trump, I suspect the only thing he’s going to back unequivocally is Rick Scott’s “Red Flag” (mental illness) concept.

So, we are likely stuck right now. There will be plenty of speeches and editorials, many meetings in which people on both sides of the aisle make good faith efforts to craft solutions, and no momentum towards anything that actually does much. The status quo, all of it, will remain, unless and until the public insists on action. But “insist” has to be more than just a show of hands to a pollster. It’s an urgency that clearly communicates to often-feckless officeholders that ignoring it may very well have them looking for new employment.

Is the public ready? It is going to have to be, because that is how you get things done in our system. If it’s not, then we wait. And wait.

As I said at the outset, I don’t know much about guns, but I know that.

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