“What Price Would Be Too High?”: The Question Gun Advocates Should Have To Answer
As we have yet another round of our repeated and possibly fruitless arguments about the role of guns in American society, there’s one thing I desperately want to hear gun advocates say. It’s not complicated, it would have the benefit of honesty, and it might enable us to move this debate to ground where we could actually make choices about what kind of society we want to have.
What I want to hear gun advocates say is, “This is the price America has to pay for the right some of us cherish.”
The reason I want to hear this is that on no other basic debate over constitutional rights that I can think of does one side argue that there are no tradeoffs, that exercising a particular right, even in the most extreme way, doesn’t actually involve any cost whatsoever. Only gun advocates say that.
When somebody shoots 49 people in a club with a military weapon that gun advocates work so desperately to keep as widely available as possible, they don’t say, “That was terrible, but the right to have guns is so important that it’s something we need to live with.” When confronted with the fact that over 30,000 Americans are killed every year with guns, they don’t say that this cost is acceptable, they say that guns had nothing whatsoever to do with all the people killed with guns. Maybe it was because of mental illness, or radical Islam, or video games. But guns? Why should we talk about guns?
There’s no other right we talk about this way. When the exercise of other rights produces things we don’t like, we don’t deny that we’re paying a price for something we value. When Nazis decide to hold a march and it makes us upset, nobody says, “Oh, we didn’t have to endure that hateful sight because of free speech; it was our road-building policy that made it possible. Speech had nothing to do with it!” We say that as unpleasant as it was, we have to tolerate hateful speech because of our commitment to free expression. Nobody denies that it has a cost.
Now to be fair, on some extremely rare occasions a prominent conservative has acknowledged that our national gun fetish has a price. For instance, Ben Carson said last fall that while he treated gunshot victims as a doctor, “I never saw a body with bullet holes that was more devastating than taking the right to arm ourselves away.” If your mind reels at how morally obtuse that is, then you know why it’s an argument you almost never hear. Instead, gun advocates say that the real answer to the carnage guns inflict is to saturate our society with yet more guns. In other words, there’s no tradeoff at all. It’s as though someone said that if you’re worried about the privacy we give up when we let the government snoop on our communications in order to stop terrorism, the answer is to just give the government all your passwords and set up a webcam in your bathroom, and then you’ll have real privacy.
Nor does anyone talk this way about less fundamental rights, the things we merely want and need. Cars kill the same number of Americans as guns, but even though cars are incredibly useful, nobody denies that they’re dangerous. So we try to make them as safe as possible. We build technologies into them, like seat belts, air bags, and anti-lock brakes. We try to make sure people are capable of handling them safely before we give them permission to drive. We pass new laws on things like texting while driving in order to eliminate the factors that make them less safe. Nobody says, “Well, the fact that your child was mowed down by a teenager texting on his phone doesn’t have anything to do with cars and driving—let’s put the focus where it belongs, on teen attention spans.”
Perhaps it’s because gun advocates look at their opponents and see people who put no value at all on gun rights, who would rather have America be more like, well, like almost every other industrialized country in the world, where guns are heavily restricted and gun ownership isn’t seen as a “right” at all. They may think that arguing against those people requires taking an absolutely categorical position at all times. Or perhaps it’s because that small proportion of gun owners, the ones who fight with fervid intensity against even the most modest restriction and regulation, really have sanctified guns in their own mind. An object so perfect in its wondrous glory can’t possibly be blamed for anything done with it.
But the truth is that gun advocates do actually think that the price we’re paying is a reasonable one for the existing gun regime, in which it’s so spectacularly easy for almost anyone to obtain as many weapons as they like. Nobody thinks that the NRA or your average Republican politician is happy about the 30,000 Americans whose lives are ended by guns every year, but it’s not a high enough number for them to embrace any measure that might inhibit gun ownership. It’s not even high enough for them to tolerate some inconvenience, like making gun owners demonstrate that they know how to handle them safely and are able to store them where children can’t get them.
Presumably, there’s some number that would be too high. Maybe it would be a hundred thousand Americans killed with guns every year, or five hundred thousand, or a million. But 30,000? That’s a price they think we can pay.
I have little doubt that some gun advocates genuinely believe that they’ll probably have their home invaded by murderous gangs, or that they need their concealed carry permit because there’s an ISIS strike team waiting at the supermarket, or that society is eternally on the brink of complete breakdown and their guns are the only way to protect their family against the cannibal hordes. But they also won’t say to the rest of us what they say to each other, which is that guns are fun, guns are cool, guns make you feel like a man and that’s the reason that guy in the shop is buying his fifth or tenth or 12th gun, not because he’s the only thing standing between the rest of us and government’s tyranny.
And the AR-15s that are getting so much attention? They aren’t as popular as they are because it’s impossible to defend your home without one. They’re popular because they’re relatively affordable, because they can be easily modified (so you can trick yours out with lots of cool accessories), and because having a gun designed for the military makes you feel like a real warrior.
That’s a truth that can’t withstand the light of day. If it’s really not about needing guns but about people wanting them and loving them, then we’d have to ask exactly what price we’re willing to pay for some people’s love of guns. So maybe that’s the question gun advocates should answer: If 30,000 dead Americans is an acceptable price to pay for your version of freedom, what price would be too high?
By: Paul Waldman, Senior Writer, The American Prospect, June 29, 2016
“The Day The NRA’s Gun Dam Began To Crack”: The Ongoing Holocaust The NRA And The Republicans Are Abetting
I couldn’t believe Wednesday night that some liberals were expressing indifference or even suspicion toward the House Democrats’ sit-in. I wouldn’t say this was all that widespread, but I did see it, and it was based on the fact that one of the bills they were demanding a vote on, the one banning people on watch lists from buying guns, is problematic from a civil-libertarian point of view.
Oh please. Do these people know history happening when they see it? The sit-in was about the two bills only in the most nominal sense. It was really about dead bodies. It was about the NRA and its stranglehold on their institution. It was about saying “enough.”
I wrote earlier this week that yes, the NRA won again on those four Senate votes, but “someday, this dam will break.” Well, it’s coming a hell of a lot faster than I thought it would. No, the dam isn’t broken—yet. That will still take a fair amount of time. But after Wednesday night, it’s now possible to see a different future, one in which the NRA is not all-powerful. It’s no longer crazy to think that its back can be broken.
Sure, there are serious civil liberties concerns about government lists. Here’s what the ACLU has to say about them. If you are a man with an Arabic name in particular, the risk of being put on one of these lists because of error or confusion is not inconsiderable. That has to be addressed, and a citizen has to be able to go to the government and demonstrate wrongful harm.
But everyone agrees on all this. As I watched the coverage Wednesday, every single Democrat I saw interviewed said as much. I wish I could retrieve for you what Illinois Congresswoman Jan Schakowsky told Chris Hayes late last night, but the video wasn’t posted on his site yet as I sat down to write. She said in essence: Of course, we all agree, fix the bill, build in an appeals process for individuals to challenge being put on the list. Given. In the meantime, actual dangerous people who deserve to be on that list can go buy assault weapons and mow down innocent people. Let’s stop that first, then we’ll fine-tune the bill.
What on earth is objectionable about that? Nothing. And anyway, the bill isn’t going to pass even if Paul Ryan does allow a vote. But it would have the effect of calling the Republicans’ bluff. That is, the standard Republican criticism of the bill has been precisely this civil-libertarian critique. So if the Democrats come to them en masse to say fine, we agree with you, let’s find a way to build in a workable appeals process, and the Republicans still vote against the bill, they will stand exposed, and everyone will know that civil liberty concerns aren’t what’s driving GOP opposition. Fear of Wayne LaPierre is. We all know this already anyway, but if there is a vote and they still vote against it, we’ll have proof.
Legislating is ugly business. The choices are usually between okay and not okay, or often between bad and much worse. You take what you can get. This is why the sit-in merits support and admiration (and if you really want to be a liberal who’s on the opposite side of the great John Lewis, be my guest). This is very different from the civil rights actions of the 1950s. Then, activists had a country to persuade; they had to move the mountain of public opinion. And so activists in Birmingham settled on segregated buses as the target that would tangibly and visibly make segregation stark for white Americans outside the South. They bided their time, deliberately chose Rosa Parks as the woman to do it, and slowly won public opinion over to their side.
But here, the public doesn’t have to be persuaded. It’s 80 or 90 percent on the Democrats’ side on guns. Even most NRA members support background checks, the subject of the other bill over which the Democrats staged their action. The boulder that has to be moved—or crushed—is the Republican Congress. So it’s up to congressional Democrats to make that fight, and they have to do it with the imperfect implements at their disposal, which means particular pieces of legislation that are bound to be deficient in one way or another.
And they’re finally making that fight. It was remarkable to see lawmakers holding those pieces of paper with the names of victims from Newtown and Orlando. That wasn’t about watch lists. It was about the ongoing holocaust that the NRA and the Republicans are abetting. It was all the more remarkable for the fact that it was done in an election year, when everyone’s supposed to be double-terrified of the NRA.
So the sit-in is ending as I write, on Thursday afternoon. But one of these days, the NRA will lose a vote. Two or three more Orlandos (which is of course two or three too many) will have the nation tearing its hair out. Democrats will finally stand firm, and enough Republicans from purple districts and states will defect. The stranglehold will end. And maybe in time, after LaPierre has gone off to whatever place eternity has reserved for him, the NRA will again become what it used to be, which is an organization that promotes reasonable Second Amendment rights but stops insisting that these death machines that were never intended to be in civilian hands deserve constitutional protection.
And when that time comes, historians will point to June 22, 2106 as the day the dam started to crack. I’m clear about which side I’m on.
By: Michael Tomasky, The Daily Beast, June 24, 2016
“21st Century Assault Weapons And 18th Century Muskets”: Why The Next Supreme Court Is Poised To Roll Back Gun Rights
While Congress remains stymied by Republican opposition to any gun regulations, there are four reasons to think that the court system, and the Supreme Court in particular, may be evolving: Orlando, changes in the Court, and two recent court cases.
Remember that the NRA’s understanding of the Second Amendment is an extremely recent phenomenon. For more than 200 years, the legal and scholarly consensus was that, in the absence of a standing army, the Second Amendment was designed to enable states and localities to maintain a “well-regulated militia” by placing muskets and other weapons in the hands of local citizens.
Then came three decades of conservative political activism, focused on law schools, the National Rifle Association, and conservative think tanks. This effort culminated (but by no means concluded) with the 2008 case of D.C. v. Heller, which the Supreme Court found, for the first time, an individual right to gun ownership in the Second Amendment.
This view is now the dogma of tens of millions of Americans, propped up by an entire industry of selective histories and scholarship that can usually be traced back to the handful of philanthropists who paid for it. Indeed, the preamble of the Second Amendment has been written out of the Constitution to the point where the NRA’s national headquarters has a frieze engraved on a wall bearing only the second clause of the amendment, “the right of the people to bear arms shall not be infringed.”
Despite the fervency with which some hold that belief, however, it is very shaky as a judicial matter—and recent signs suggest it may collapse entirely. First, of course, is the Orlando massacre, the latest mass shooting to horrify America. While the Right has, of course, blamed the shooting solely on Islamic terrorism, it seems clear to most people that it was due to a combination of terrorism, homophobia, the personality of the shooter, and access to guns. Without the AR-15-style rifle, the shooter would likely not have killed 49 people.
The Orlando massacre doesn’t have any formal judicial meaning. But Supreme Court justices are also human beings, and it’s hard to see it not impacting how they view the relationship between 21st century assault weapons and 18th century muskets.
Second, there is the shift in the Court’s own membership. The Heller opinion was written by the late Justice Antonin Scalia for a 5-4 majority. That majority is now gone.
Interestingly, we know next to nothing about how a Justice Merrick Garland might vote on gun control. Contrary to the insinuations of Bill O’Reilly and other conservative talking heads, Judge Garland did not vote to uphold the District of Columbia’s gun law that was ultimately overturned in Heller; he only voted for the entire appeals court to hear the case, rather than just a three-judge panel. (One of the appeals court’s most conservative members voted the same way—but they were outvoted.) We have no clue of his view of the Second Amendment, and his more moderate outlook in general means that anything is possible.
Still, Garland is no Scalia—and if he isn’t confirmed, whoever President Hillary Clinton nominates is likely not to be a Garland-style moderate either. So the pendulum may swing back on gun rights simply as a function of the Court’s membership.
Two lesser-known developments, though, may be even more telling.
The first of these is that the Supreme Court decided not to hear an appeal brought by a challenger to a state’s assault weapons ban, upholding the gun-control law. This may mean many things: maybe a majority of justices think the appeals court got it right, or maybe they don’t see enough of a conflict among the circuit courts, or maybe they think this case isn’t the best test case to take, or maybe the short-handed court is limiting its workload, or who knows—it could be anything.
But at the very least, it means the Court does not see the ban as a horrifyingly unconstitutional travesty that requires immediate judicial remedy. Contrast that with two of the cases still outstanding this year: Texas’s challenge to the Obama administration’s immigration policies, and Texas’s defense of its abortion clinic regulations. The Court not only took these two cases but issued (or upheld) injunctions on the enforcement of the challenged rules.
Not so in the assault weapons ban case.
Finally, there’s a case from the Ninth Circuit Court of Appeals, decided earlier this month, that provides some of the best intellectual rationale for limiting, if not overruling, Heller.
That case, Peruta v. City of San Diego, dealt with California’s strict requirements to obtain a “concealed carry” permit. (They are only available to limited groups of people, such as guards, messengers, hunters, or target shooters.) Do those requirements violate the Second Amendment? The Ninth Circuit, by a vote of 8 to 3, said no.
Writing for the court, Judge William Fletcher wrote an extensively researched originalist opinion worthy of Justice Scalia himself. Expressly avoiding the question of whether the Second Amendment gives citizens a right to carry weapons openly in public (a question left open by Heller as well), Judge Fletcher’s opinion focused on whether there is a Second Amendment right to carry concealed weapons.
To answer the question, he turned Scalia’s logic against him. The Heller opinion refuted the plain meaning of the constitutional text on the grounds that it codified a “pre-existing right” to bear arms for self-defense, not just for use in a militia. (That the opinion was by a self-proclaimed strict constructionist was an irony not lost on liberal commentators.) Thus the question became whether there was a “pre-existing right” (in America or pre-colonial England) to carry a concealed weapon in public.
And the answer was obvious: not in the least. On the contrary, English common law, colonial regulations, and state statutes dating back as far as the year 1299 prohibited carrying a concealed weapon. (That 1299 regulation provided that sheriffs prohibit anyone from “going armed within the realm without the king’s license.”) The masterful opinion cited English laws and opinions from 1299, 1304, 1308, 1328, 1388, 1419, 1444, 1541, 1594, 1613 (“bearing of Weapons covertly… hath ever beene… straitly forbidden”), 1686, 1694, 1716, and 1782; and American state cases and statutes from 1822, 1833, 1840, 1842, 1846, 1850, 1868, 1871, 1875, 1876, 1879, 1885, 1889, 1890, 1891, 1897, and 1899—all of which, save a single outlier (Kentucky, 1822), upheld bans on carrying a concealed weapon even in the face of general rights to own or carry firearms in general.
Applying the Supreme Court’s own methodology, the Ninth Circuit reached the obvious conclusion: whatever the Second Amendment does protect, it does not protect concealed-carry rights. Thus the California law is constitutional.
Along the way, the Ninth Circuit, while bound to respect Heller, seriously limited its application. It would not be logically difficult to extend an individual gun right to a right to concealed carry, but Heller was not a logical opinion; it was an historical one. In its view (similar, incidentally, to the conservative dissents in the same-sex marriage cases), history, not logical reasoning, is what determines whether a right exists.
It’s not hard to see how this use of conservative constitutional logic for a substantively liberal outcome would play out in future cases. Is there a historical right to own an automatic weapon? To amass unlimited amounts of guns and ammo? To bring weapons into schools and sporting events? Of course not.
More generally, if history is to be our guide—as judicial conservatives usually insist—then surely it is appropriate to factor in the quantity of firepower involved, which could enable the government to regulate nearly all contemporary weapons.
Of course, one factor unchanged by these four considerations—Orlando, the Court, the assault weapons case, and Peruta—is the way in which gun rights has become a symbol, for white American conservatives, of the good ol’ days, limited government and exceptionalist American values. Indeed, the logic is often adolescent in nature; if it pisses off the liberals, it must be a good thing. That attitude, combined with the unprecedented gerrymandering of the House of Representatives, makes it unlikely that federal legislative action will come any time soon even though a majority of Americans support it.
But if Orlando has awakened the American public, in a way that Virginia Tech, Colombine, Sandy Hook, Roanoke, and San Bernadino did not, then these judicial changes might provide the avenue for that change to occur. They may not provide the will—but they do provide the way.
By: Jay Michaelson, The Daily Beast, June 22, 2016
“NRA Corpses Pile Up”: The NRA’s Day Of Reckoning Will Come, And Maybe Sooner Than We All Think
Can the National Rifle Association ever be defeated?
I can’t blame you if you’re thinking “no.” It won again this week, as everyone knew it would. But someday, this dam will break.
I admit that these last few days give us little basis for hope, but I do think Connecticut Senator Chris Murphy’s filibuster had some impact in forcing a vote, albeit an unsuccessful one. Majority Leader Mitch McConnell controls the calendar, decides what gets to the floor. He didn’t have to schedule these votes. Granted, his real motivation was undoubtedly to give that small number of Republican incumbents from purple or blue states a chance to cast a reasonable-seeming vote on guns.
But public pressure exists, and polling is through the roof on support for banning the purchase of guns by people on terror-watch and no-fly lists. Murphy’s stand galvanized gun-control forces.
After the Newtown shooting in December of 2012, it took five months for the Senate to hold a vote. This time it took a week. That may not seem like much, especially given that both efforts came to the same bleak end, but this is progress of a sort. These things take a long time.
It was mildly encouraging, too, to see some red-state Democrats vote for gun legislation sponsored by Dianne Feinstein. To NRA hard-liners, she is Satan. There are four red-state Democrats who risk political suicide if they’re not careful on guns: Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Jon Tester of Montana. All but Heitkamp voted for Feinstein’s amendment to prevent gun purchases by anyone who’s been on a terror watch list for the last five years.
It should be noted that only Donnelly voted for the other Democratic measure, introduced by Murphy and Chuck Schumer, which sought to close the gun-show loophole. And all four of these Democrats opposed a weak amendment from Republican Chuck Grassley.
But ultimately, yes, the votes were election-year theater. Here’s how ridiculous the whole thing is. Maine Republican Susan Collins has this “compromise” bill that would ban purchases of guns by people on the no-fly list. That’s to get Democratic support. Then it allows people to appeal such a decision, which is supposed to lure Republicans, who’ve said they don’t like the ban because some people have been incorrectly put on those lists.
You might think that that would mean that enough senators from both parties could vote yes. But as of Tuesday afternoon, a Senate source explained to me, no other Republican had yet signed on to Collins’s bill. A small number presumably would—Mark Kirk of Illinois, who’s facing a tough reelection fight in a very blue state, maybe a few others. But Collins would need 15 or 16 Republicans to back her to get the 60 votes needed to end cloture. That’s as close to impossible as anything can be.
Now it gets even more baroque: Despite this lack of Republican enthusiasm, Senate Majority Leader Mitch McConnell may well give Collins a vote anyway. McConnell, of course, has no personal interest in compromise on this issue. He’s NRA all the way.
However, he probably wants a vote for the sake of Kirk, New Hampshire’s Kelly Ayotte, Pennsylvania’s Pat Toomey, Wisconsin’s Ron Johnson—that is, all the Republicans up for reelection in blue states. It’ll look nice to voters back home that they cast a bipartisan gun vote.
But of course Democratic leader Harry Reid knows this, and so he might respond to such a move by McConnell by encouraging his caucus to vote against the Collins measure, thereby denying Kirk and the rest the desired bipartisan cover. Capische?
So the bill that is an actual compromise, the one bill on which both sides might actually have been able to agree, at least in theory, is the very bill that might lose by something like 95-5.
It’s not just ridiculous. It’s immoral. How high do the carcasses need to pile?
I sense we’re starting to reach the point where we’re going to learn the answer to that question. This just can’t go on forever. For starters, if Hillary Clinton maintains her lead and is elected president, one of the first things she’s going to do is put a liberal on the Supreme Court, making for a 5-4 liberal majority. Even if she settles for Merrick Garland, signs are he’d back gun control measures (the NRA already came out against him).
That could lead to an overturning of District of Columbia v. Heller, which vastly expanded individual gun-ownership rights. Given enough time, and maybe an Anthony Kennedy or a Clarence Thomas retirement and thus a 6-3 liberal majority, it could lead to still bigger changes in gun-law jurisprudence.
That would lead a defensive NRA to try to tighten its grip on Congress even more. And that will probably work, for a time. But it will embolden the anti-NRA forces too. Momentum will then be on their side.
And the mass killings will continue, and the bodies will pile up, and public outrage will grow. And one of these days, there’ll be a tragedy that will make everyone, even the number of Republicans who’d be needed to break a filibuster, say “enough.” It would have to be just the right kind of thing, click all the demographic boxes just right—a white man who bought an assault weapon with no background check and went on a rampage and killed many white people in a heavily Republican part of the country. I’m not wishing this on anyone, but then, I don’t need to. As we continue to do nothing, the odds increase daily that it will happen.
Things look awful until, one day, they suddenly don’t. The day Rosa Parks sat down on that bus, I bet not that many people would have predicted that a president would sign a civil rights bill just nine years later. The evil that is the NRA is so thoroughgoing and so repulsive to most Americans that it just can’t last forever. Newtown and Orlando energized millions of people. The LGBT community, I gather, is going to embrace gun-control as an issue. They’re organized, and they have money and clout. The old saying that pro-gun people vote on that issue while anti-gun people don’t isn’t as true as it once was.
So be angry about what happened. But Wayne LaPierre’s day will come, and maybe sooner than we think. And what a day it will be.
By: Michael Tomasky, The Daily Beast, June 22, 2016
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