Gun control is back in Washington in the wake of Arizona's tragic mass shooting. Rep. Carolyn McCarthy (D-N.Y.) introduced last week a ban on high-capacity clips and Sen. Richard Lugar (R-Ind.) said on Sunday that he supports reinstating the expired assault-weapons ban.
Political observers generally agree that with a Republican House of Representatives no such gun-control law will pass. But whether you think a ban on police-style assault weapons such as the one Jared Lee Loughner used in Tuscon is good policy or not, it is curious to see that Republicans are not even bothering to make legitimate arguments against such proposals.
There is a lot of bogus invocation of the Second Amendment going on right now. But there is no ambiguity in the judicial precedent: the assault-weapons ban does not violate the Second Amendment. When Kim Strassel of The Wall Street Journal complains that "New York Mayor Michael Bloomberg has piped up, again, in favor of expanding the sort of burdensome restrictions his city places on the Second Amendment to the nation as a whole," she is using weasel words to invoke the Constitution on a subject with no relevance to it. Even the most conservative jurists held for decades that Second Amendment was meant to protect state militias rather than an individual right to own weapons. More recently, the Supreme Court overturned total bans on all gun ownership, such as the Washington, D.C., law overturned in Heller v. District of Columbia by a 5-4 decision. But Heller did not establish an individual right to own all weapons. Members of the narrow majority on the Supreme Court who believe that the Second Amendment establishes an individual right to bear arms would not hold that the Constitution protects one's right to own a nuclear submarine. So it is not true that any gun ban automatically "burdens" the Second Amendment. The question is whether it affects the limited right to self-defense that the conservative majority now says the Founders intended. Banning any possession of handguns by law-abiding citizens, even in the home, is so far the only law that the high court has held violates the Second Amendment. Such extreme bans are only passed in large liberal cities such as D.C. and Chicago where crime is a persistent concern. No federal law that could ever actually be passed by the U.S. Congress approaches such a level of restriction. There is simply no precedent to support the claim that laws preventing civilians from obtaining weapons that can fire 30 bullets without reloading would violate the Second Amendment. This does not mean that one cannot have a valid concern that even constitutional laws place an undue burden on one's freedom, but that is a question of values and public policy tradeoffs, not constitutionality.
Likewise it is fair to ask whether gun-control laws are actually effective at controlling crime. As some conservatives have pointed out, while it is true that Loughner might have been able to wreak less damage if he had to stop to reload, he could also simply have brought an extra gun if the type he used was unobtainable. The reality is that no one knows in any given case whether the assault-weapons ban would have saved lives: sometimes it would, sometimes it wouldn't. But the larger pointâ€"that restricting weapons may not be the most effective approachâ€"is worth discussing.
But some arguments are so foolish they should be beneath the public discourse. For example, Sen. John Ensign (R-Nev.) told The Washington Post: "Gun laws were not the reason that a socially isolated individual, an anarchist, chose to open fire on an elected official, her constituents and a federal judge." That is attacking a straw man. No one has argued that gun laws were the reason Loughner carried out his attack. What they suggest is that someone who wants to carry out an attack might be less able to do so without legal access to automatic weapons. You can debate that notion, but you ought not to pervert your opponent's argument into a self-evidently nonsensical one as Ensign does.
Ensign goes on to say:
"The District of Columbia is home to the nation's most restrictive gun control measures. Logic would suggest that this city must be the safest place in the country. But the facts do not support this conclusion. Gun violence in the District was consistently among the highest in the nation throughout the 30 years that the city banned handguns."
It's ironic that Ensign points to "logic" to advance such an illogical argument. Logic most certainly does not suggest that the city with the most restrictive gun-control measures would be the safest place in the country (although it is funny that Ensign seems to believe in the logic of gun control.) Stiff gun-control restrictions are typically passed in places with a high fear of crime, which is correlated with a high rate of crime. Any liberal, no matter how fervent a supporter of gun control, would agree that violent crimes, including gun crimes, are caused by a number of factors. In D.C. the main culprits are high poverty, high inequality, bad schools, ineffective social services and a local government that is hamstrung by a perverse mix of financial neglect and ideological meddling from Congress. Also, when you are right across the river from Virginia, then obtaining firearms that are illegal in D.C. is not difficult. A federal ban would have a completely different effect because such weapons would have to be brought across our national borders, not merely driven across the Key Bridge from Arlington.
Let's be as generous to Ensign as possible and rewrite his ludicrous assertion that D.C. would have to be the safest city in the country for gun-control laws to have any merit into something more plausible: that regardless of how D.C.'s crime rate compares to the rest of the country, we cannot demonstrate that its gun ban reduced crime. This is a debatable contention as well: a 1991 study found that following the enactment of D.C.'s handgun ban in 1976, there was a 25 percent decline in homicides committed with firearms and a 23 percent decline in suicides committed with firearms in D.C., while no similar drops were found in the D.C. suburbs. But even if Ensign's contention were both more reasonable and factually ironclad, it would have little relevance to proposals such as McCarthy's, which are not intended to reduce the overall crime rate but to reduce the severity of occasional outlier events such as the Tuscon shooting.
It is appropriate for gun-control opponents to caution rush into passing legislation in the wake of tragedy. And if they have credible evidence that a specific proposal runs afoul of the Second Amendment or will create another negative externality, they should present it. But they should not distort the nature of a proposal, whether it is restoring the assault-weapons ban or, perhaps, removing Arizona's recently passed law allowing residents to carry concealed weapons.
"I believe this legislation not only protects the Second Amendment rights of Arizona citizens, but restores those rights as well," Gov. Jan Brewer said when she signed the bill into law in April. Her belief is wrong: concealed carry has nothing to do with the Second Amendment. If politicians such as Brewer and Ensign can't argue for, or against, a law without resorting to such fallacies, then they should reconsider their position.
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