The Great Gun Debate

I greatly appreciate the opportunity to debate and respond to Selwyn Duke's piece, which makes many very reasonable points. Its biggest deficiency is that it never actually proposes measures --whether specific new regulations or repeal of specific existing ones -- that would improve the current system. Instead, Mr. Duke says he would scale back gun laws from 22,000 to 5,000, two arbitrary numbers, neither of which bear any correlation to smart policy.

Before discussing potential policy responses, let me say that Mr. Duke is quite right that thousands of gun laws, unsurprisingly, did not eliminate crime (I am unaware of anybody who ever suggested that they would, or of any law that ever has). I find wholly unpersuasive the suggestion that laws -- particularly new laws -- are unnecessary because "bad guys" will not follow them or because they will fail to eliminate a problem completely.

By that same logic, why should we have insider trading or fraud laws? After all, bad guys will continue to seek advantages in stock trading and other areas of commerce to the detriment of law-abiding citizens. Why pass laws preventing access to drugs? Lawbreakers will still obtain them. Heck, why limit access to nuclear materials? Terrorists sure won't stop in their pursuit. By definition, lawbreakers will continue defying laws. Yet, they are precisely the people who laws are meant to address.

Clearly, Mr. Duke and I can agree on certain assumptions that underlie this debate. First, I agree that gun laws have not eliminated crime and that crime will still exist after new laws are passed (choice B). We both also probably agree that elements of the existing legal framework are not "sensible." Admittedly -- probably another point of agreement -- the federal government, and state governments too, for that matter, is not very good at solving problems. That is the essence of why many of us consider ourselves conservatives. Laws tend to lead to bureaucracy. And more laws certainly do not guarantee better results or smarter policy.

While I would be happy to reduce the number of existing gun laws from 22,000 to 5,000 (in fact, why can't we consolidate them into one?), as Mr. Duke suggests, we might diverge here, because I believe there are restrictions that are not currently in place that should be going forward. From the outset I have made three points. First, I began this debate by making the point that opposing all new regulations is bad politics. I also think it is a bad negotiating strategy for gun advocates. Second, opposing all new regulations is bad policy. And third, regulations can be, and must remain, consistent with the Second Amendment.

First, let me address the latter briefly. Objections to my position, at first, seemed largely rooted in Second Amendment concerns. Recently, a group of Army Special Forces soldiers signed a letter in which they expressed disapproval with my position. I have nothing but the deepest respect for and gratitude towards these heroes, and I give particular deference to their opinion in light of their unique perspectives and experiences.

However, my constitutional interpretation is consistent with the very opinion that Antonin Scalia offered in his 2008 majority opinion in District of Columbia v. Heller. That opinion was considered expansive in its Second Amendment interpretation, and yet it also establishes fairly broad latitude in permitting gun regulations.

In terms of the politics, I have pointed out that other conservatives, including Barry Goldwater and Ronald Reagan, supported gun-control measures. Reagan, for one, was outspoken after his presidency supporting passage of the Brady Bill and the Assault Weapons Ban, the two most controversial pieces of legislation on the subject in generations. Given the resounding defeat conservatives suffered in the last election, perceived callousness and obstinacy in the face of unspeakable carnage could cause damage with voters. Call me opportunistic for considering the political implications; just please remember it if left-wingers control the keys to the government in the future as well.

Finally, in terms of specific policy responses, I will confess to being conflicted about an assault weapons ban. I acknowledge that the "assault weapons" ban largely addresses a gun's aesthetic features. Does that promote the kind of end goal for which we all strive: namely, greater safety? Perhaps not, as I will concede that if one is okay with the notion of citizens owning semi-automatic weapons generally, (as I am), then what does banning so-called assault weapons really accomplish other than to deglorify certain weapons? Undoubtedly, there are elements of an assault weapon ban, such as the presence of a trigger grip, that are arbitrary and make little sense.

Despite my ambivalence, what I am not ambivalent about is that what happened in Sandy Hook, CT, is something that no civilized society should accept. We should not dismiss it as just a rare, uncontrollable incident and a product of the deranged. So was September 11th, but we appreciated the need for a "No Fly" list that could lessen the chances of future incidents. I would be open to any number of suggestions, including armed guards in schools and enhanced security features. Certainly enhanced background checks should be part of the equation though.

Moreover, while any limitation on magazine capacity will naturally produce an arbitrary number, (so I will not express an opinion on whether the limitation should be 7, 8, 10, or something else), that number shouldn't be 30. In the same letter by the group of Special Forces soldiers, they said,

The second part of the current debate is over "high capacity magazines" capable of holding more than 10 rounds in the magazine. As experts in military weapons of all types, it is our considered opinion that reducing magazine capacity from 30 rounds to 10 rounds will only require an additional 6-8 seconds to change two empty 10 round magazines with full magazines. Would an increase of 6-8 seconds make any real difference to the outcome in a mass shooting incident? In our opinion it would not.

I have heard on many occasions the argument that "when every second counts, the police are just minutes away." I find the idea that every second counts persuasive. We are reminded that an AR-15 can shoot up to 60 rounds per minute (or one per second). That means six to eight seconds can mean six to eight shots, which can mean six to eight lives. That can make a real difference, especially if your kid is hit by the last bullet fired.

I trust that the readers of this, like all sane Americans, desire the same goal: greater safety for our children and the ability to protect them and ourselves from evil and danger. I believe we can make improvements in furthering that goal with sensible changes consistent with our constitutional rights. I wouldn't expect everyone to agree on exactly what that entails. I would hope we agree on the premise.

Brett Joshpe is an attorney at the NYC law firm of Joshpe Law Group LLP and author of Why You're Wrong About the Right.

 

I greatly appreciate the opportunity to debate and respond to Selwyn Duke's piece, which makes many very reasonable points. Its biggest deficiency is that it never actually proposes measures --whether specific new regulations or repeal of specific existing ones -- that would improve the current system. Instead, Mr. Duke says he would scale back gun laws from 22,000 to 5,000, two arbitrary numbers, neither of which bear any correlation to smart policy.

Before discussing potential policy responses, let me say that Mr. Duke is quite right that thousands of gun laws, unsurprisingly, did not eliminate crime (I am unaware of anybody who ever suggested that they would, or of any law that ever has). I find wholly unpersuasive the suggestion that laws -- particularly new laws -- are unnecessary because "bad guys" will not follow them or because they will fail to eliminate a problem completely.

By that same logic, why should we have insider trading or fraud laws? After all, bad guys will continue to seek advantages in stock trading and other areas of commerce to the detriment of law-abiding citizens. Why pass laws preventing access to drugs? Lawbreakers will still obtain them. Heck, why limit access to nuclear materials? Terrorists sure won't stop in their pursuit. By definition, lawbreakers will continue defying laws. Yet, they are precisely the people who laws are meant to address.

Clearly, Mr. Duke and I can agree on certain assumptions that underlie this debate. First, I agree that gun laws have not eliminated crime and that crime will still exist after new laws are passed (choice B). We both also probably agree that elements of the existing legal framework are not "sensible." Admittedly -- probably another point of agreement -- the federal government, and state governments too, for that matter, is not very good at solving problems. That is the essence of why many of us consider ourselves conservatives. Laws tend to lead to bureaucracy. And more laws certainly do not guarantee better results or smarter policy.

While I would be happy to reduce the number of existing gun laws from 22,000 to 5,000 (in fact, why can't we consolidate them into one?), as Mr. Duke suggests, we might diverge here, because I believe there are restrictions that are not currently in place that should be going forward. From the outset I have made three points. First, I began this debate by making the point that opposing all new regulations is bad politics. I also think it is a bad negotiating strategy for gun advocates. Second, opposing all new regulations is bad policy. And third, regulations can be, and must remain, consistent with the Second Amendment.

First, let me address the latter briefly. Objections to my position, at first, seemed largely rooted in Second Amendment concerns. Recently, a group of Army Special Forces soldiers signed a letter in which they expressed disapproval with my position. I have nothing but the deepest respect for and gratitude towards these heroes, and I give particular deference to their opinion in light of their unique perspectives and experiences.

However, my constitutional interpretation is consistent with the very opinion that Antonin Scalia offered in his 2008 majority opinion in District of Columbia v. Heller. That opinion was considered expansive in its Second Amendment interpretation, and yet it also establishes fairly broad latitude in permitting gun regulations.

In terms of the politics, I have pointed out that other conservatives, including Barry Goldwater and Ronald Reagan, supported gun-control measures. Reagan, for one, was outspoken after his presidency supporting passage of the Brady Bill and the Assault Weapons Ban, the two most controversial pieces of legislation on the subject in generations. Given the resounding defeat conservatives suffered in the last election, perceived callousness and obstinacy in the face of unspeakable carnage could cause damage with voters. Call me opportunistic for considering the political implications; just please remember it if left-wingers control the keys to the government in the future as well.

Finally, in terms of specific policy responses, I will confess to being conflicted about an assault weapons ban. I acknowledge that the "assault weapons" ban largely addresses a gun's aesthetic features. Does that promote the kind of end goal for which we all strive: namely, greater safety? Perhaps not, as I will concede that if one is okay with the notion of citizens owning semi-automatic weapons generally, (as I am), then what does banning so-called assault weapons really accomplish other than to deglorify certain weapons? Undoubtedly, there are elements of an assault weapon ban, such as the presence of a trigger grip, that are arbitrary and make little sense.

Despite my ambivalence, what I am not ambivalent about is that what happened in Sandy Hook, CT, is something that no civilized society should accept. We should not dismiss it as just a rare, uncontrollable incident and a product of the deranged. So was September 11th, but we appreciated the need for a "No Fly" list that could lessen the chances of future incidents. I would be open to any number of suggestions, including armed guards in schools and enhanced security features. Certainly enhanced background checks should be part of the equation though.

Moreover, while any limitation on magazine capacity will naturally produce an arbitrary number, (so I will not express an opinion on whether the limitation should be 7, 8, 10, or something else), that number shouldn't be 30. In the same letter by the group of Special Forces soldiers, they said,

The second part of the current debate is over "high capacity magazines" capable of holding more than 10 rounds in the magazine. As experts in military weapons of all types, it is our considered opinion that reducing magazine capacity from 30 rounds to 10 rounds will only require an additional 6-8 seconds to change two empty 10 round magazines with full magazines. Would an increase of 6-8 seconds make any real difference to the outcome in a mass shooting incident? In our opinion it would not.

I have heard on many occasions the argument that "when every second counts, the police are just minutes away." I find the idea that every second counts persuasive. We are reminded that an AR-15 can shoot up to 60 rounds per minute (or one per second). That means six to eight seconds can mean six to eight shots, which can mean six to eight lives. That can make a real difference, especially if your kid is hit by the last bullet fired.

I trust that the readers of this, like all sane Americans, desire the same goal: greater safety for our children and the ability to protect them and ourselves from evil and danger. I believe we can make improvements in furthering that goal with sensible changes consistent with our constitutional rights. I wouldn't expect everyone to agree on exactly what that entails. I would hope we agree on the premise.

Brett Joshpe is an attorney at the NYC law firm of Joshpe Law Group LLP and author of Why You're Wrong About the Right.

 

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