December 28, 2012
Sensible Arms PolicyBy Brett Joshpe
The tragedy of Sandy Hook has been disheartening in so many ways, first and foremost in human ways. It has also once again exposed the extent to which our national debates are framed by polemics, rather than pragmatic problem-solvers. As a conservative, I have been disappointed that so many within my ranks continue to advocate for a continuation of the status quo, rather than sensible alternatives. The reaction, in many cases, has been an emotional one, and several of the arguments that are being offered constitute clichéd talking points. I offer my response to several of those arguments below.
Gun Rights are Inalienable and Natural
References to rights as "fundamental," "inalienable," or "natural" (in the St. Thomas Aquinas tradition) are convenient trump-cards for advocates of those rights, because these arguments are, by and large, conclusory and irrefutable. They are grounded in references to higher purpose and so, naturally (no pun intended), are less susceptible to mundane challenges. However, these arguments are lazy, and they are essentially a way for proponents to say a particular right is, in their minds, "really, really, really important." For conservatives so offended by the substantive due process logic behind Roe v. Wade, referencing rights in the more cosmic sense is another side of the same coin. In the context of gun rights, there is, of course, a constitutional basis for establishing gun rights, which should be respected, but which are limited.
Bad Guys Will Get Guns No Matter
Nobody whose opinion should be taken seriously is suggesting the complete elimination of guns. Instead, the debate is -- or should be -- focused on what kind of regulations or restrictions should attach to them. Banning high-capacity magazines, automatics, and semi-automatics certainly might not prevent all the bad guys from acquiring them, but it will make it harder and more costly. That, by the way, is what most laws and regulations are designed to do: address abuse by the "bad guys." To quote James Madison, "If men were angels, no government would be necessary."
Similarly, arms advocates assert that it's the operator, not the gun, sometimes drawing an analogy to a deadly driver. There are obviously major differences between car ownership and gun ownership -- and implications for our economy and way of life -- that make this argument unpersuasive. Moreover, as September 11th showed, there are psychological considerations that are relevant too. There is a cost to society in morale by having children murdered in schools in broad daylight that are not present in car fatalities and that make action more imperative. And the fact that the operator is more culpable than the inanimate machine certainly doesn't mean we shouldn't limit access to the machine.
More Restrictive Laws Would Not Have Prevented Newtown
This argument is a slight derivation from the prior, and can almost always be used to argue for inaction. Laws are almost by definition over-inclusive or under-inclusive. More expansive wire-tapping rules may not have stopped September 11th, but that does not mean that reasonable laws that have the potential to stop future tragedies are futile or pointless.
Further Gun Restrictions are a Slippery Slope
The slippery slope argument is another one that can essentially be used in all cases to justify one's position. One can oppose any law on the grounds that it curtails someone's "rights" somewhere and could lead to further erosion of rights. It too is conclusory, however: "we oppose a curtailment of rights, because it curtails our rights and may lead to a further curtailment of our rights."
Guns Protect the Weak from the Strong
True. But they can also facilitate the weak, as was the case in Sandy Hook, in exacting excessive carnage, particularly with the use of high-capacity magazines and semi-automatic and automatic firearms. Some have suggested in the wake of Sandy Hook that teachers should be armed. The National Rifle Association (NRA) has instead proposed that every school should have an armed guard, which is worthy of consideration. Administratively, that policy would be very expensive -- although it may be the price our nation must pay. However, it is also not mutually exclusive with other safeguards that could be put into place and which may be cheaper, like new restrictions on point of sale transactions. Reasonable minds can differ about whether more guns in public places will lead to less violence. The salient points are, first, that anecdotal arguments are dubious. Second, even if guns do indeed protect the weak and innocent among us and save lives on net, that certainly does not mean we have struck the optimal balance between access and restrictions.
Guns are a Protection from Government Tyranny
What about the fact that gun rights, and the Second Amendment, were originally crafted as a safeguard against government tyranny? Well, that was the 1780's, and muskets were the state-of-the-art firearm of choice. It is also seems completely inconsistent for those on the Right to subscribe to the notion that America is the greatest nation in the world -- as I do -- but then also take seriously the idea that government might start moving door-to-door unless we are armed. A far more compelling argument is that governmental authorities, like police, lack the ability to be all places at once, particularly with budgetary downsizing, and responsible citizens can help fill the void. Again, whether more guns in public will save lives is a point that can be debated and which may differ depending on one's state or city. However, assuming arguendo that gun ownership among citizens can save lives, implementing responsible safeguards still makes sense.
Gun Ownership is a Constitutional Right
It is a constitutional right, which is why those who want to eliminate guns are not credible voices. It is also why the straw man erected by gun advocates that the government is trying to take away your guns is also easily dismissed. The Supreme Court held not long ago in Heller that most individuals (excluding mentally ill and felons) have a constitutional right to own a gun in one's home for limited purposes, including self-defense. The subsequent McDonald decision incorporated that right at the state level. However, for conservatives, many of whom subscribe to an "originalist" view of the Constitution, there is no textual or original intent argument that a constitutional right to an automatic or semi-automatic weapon, or even to be able to possess a gun in public, exists.
In the wake of the Sandy Hook horror, it has never been more obvious to me -- and probably to many Americans -- why law-abiding citizens might want a gun in their home to protect their family. That right is sacrosanct and, for all intents and purposes, non-negotiable, given the Supreme Court's ruling. However, it is also time for sensible restrictions and regulations.
Access to high capacity magazines and certain assault weapons should be curtailed. Recreation is their primary purpose, and sport can no longer outweigh even the slightly higher likelihood of future tragedies like Sandy Hook. In addition, as a nation, we need to de-glorify enhanced firepower. To the extent that guns serve a defensive purpose and can save lives, we should treat them as the tools of last resort that they are, not toys or props littering our movies and video games. Second, purchasing weapons at gun shows from non-licensed sellers and without a background check should be banned. Gun shows offer the easiest way for those with bad intentions or who are irresponsible to acquire weapons. Certainly there is nothing in these common-sense suggestions that is inconsistent with our Second Amendment rights.
Although reasonable minds can differ about exactly should be done to address tragedies like Sandy Hook and gun violence in general, we should be just as skeptical of those who suggest nothing at all as those who want to eliminate guns completely. At least if we are going to have this important debate, let it be informed by reasoned arguments and analysis, not hackneyed talking points from either fringe.
Brett Joshpe is an author and attorney in New York City.
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