Confronting the political problem of guns

By Newton Minow and David B. Apatoff
January 3, 2013

We hope 2013 brings a civil, intelligent, and constructive national debate about gun policy. Past debates often failed to get traction because Americans have a fundamental disagreement about the meaning of the Second Amendment. Emotions and anger take over – and rational discourse disappears.

But we all now owe the 26 little children and teachers murdered in the Sandy Hook Elementary School in Newtown, Connecticut, a sincere effort to bring light rather than heat to this debate. It does not advance progress for one side to insist that all guns should be confiscated while the other side argues “good guys” should shoot the “bad guys.”

What exactly is the right the Second Amendment protects? In the Supreme Court’s 2008 Heller decision, Justice Antonin Scalia was clear writing for the majority: The Second Amendment does not protect “a right to keep and carry any weapon whatsoever in any way whatsoever and for whatever purpose.”

The “right to bear arms,” Scalia wrote, only applies to “the sorts of weapons … in common use at the time” of the Second Amendment – which was 1791. What was “in common use” then?

As Craig R. Whitney describes in his new book, Living With Guns, Congress passed the Uniform Militia Act in 1792 – requiring all free, able-bodied white males under age 45 to muster with a local militia and equip themselves “with a good musket or firelock.”

The Wall Street Journal, reading the Scalia opinion, states: “Governments can impose substantive regulatory limits: to license guns; bar felons or the mentally ill from buying guns; regulate certain types of heavy weapons.”

The modern equivalent of weapons “in common use” does not include the high-speed, high-capacity weapons used to massacre large numbers of citizens in Aurora, Colorado, or Newtown. Some gun advocates invoke the Second Amendment to thwart a meaningful discussion of what guns should be in “common use.” But the Founding Fathers never intended the Second Amendment to protect such extreme weapons from “substantive regulatory limits.”

Once the Second Amendment limits are recognized, the debate is not about the Constitution, but about policy. And policy here means politics.

Our representatives should not be permitted to hide from their responsibility to hold an open political debate with the excuse that our Founding Fathers resolved that question 220 years ago.

The National Rifle Association enters the picture, amply funded by the $11 billion firearms industry, which produces the kind of “dangerous and unusual weapons” that the Supreme Court specifically ruled are not protected. The National Association for Gun Rights sends pledges to legislators, saying: “I DEMAND you vote AGAINST any assault on my gun rights.”

Consider, the gun lobby has succeeded in blocking presidential nominees to head the Bureau of Alcohol, Tobacco and Firearms and Explosives since 2006 – even those nominated by President George W. Bush.

Guns are not the sole cause of these mass killings. But focusing on issues such as our mental health system and the extreme violence in video games will not solve the problem unless gun advocates are finally willing to enter into a responsible dialogue.

As the poet William Butler Yeats wrote, “the best lack all conviction while the worst are filled with passionate intensity.” Our political leaders are not bound by the Constitution’s Second Amendment to stand by helplessly when Sandy Hooks happen.

We do not face a constitutional problem, but rather a lack of courage to face a political problem.

First, we need to disenthrall ourselves from the notion that the Second Amendment prevents us from exercising our own judgment and making sensible political compromises.

Second, we need to understand how the current dependency on political campaign contributions has skewed the political debate about gun laws.

Finally, we need representatives with enough courage and conscience to remember the children of Sandy Hook when they deliberate what is in the public interest.


PHOTO (Top): Flag hangs over stockings left as a memorial for victims of the Sandy Hook Elementary School shooting, on a fence surrounding the cemetery in Newtown, Connecticut, December 27, 2012. REUTERS/Adrees Latif

PHOTO (Insert Middle): Reproduction of a flintlock rifle, ca. 1775

PHOTO (Insert Bottom): An automatic weapon is displayed on a wall at the Scottsdale Gun Club in Scottsdale, Arizona December 10, 2011. REUTERS/Joshua Lott


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To own a gun, a background check, gun safety and proficiency classes should be required without exception. Since the government does not have the funds to place armed guards everywhere, intelligent trained people with guns would be able to lessen the carnage of innocent lives by shooting the attackers. The guns, like criminals are never going to go away no matter what law you write to try to make that happen.

Posted by zotdoc | Report as abusive

tmc, I’m suggesting people should debate what the Constitution actually says, not what they want it to say. The Constitution makes no mention of guns or firearms. The Second Amendment says ‘Arms.’ When we do an arms sale to Saudi Arabia, do you think those are shipments of handguns and rifles? Are you naive?

Those are F-16′s, anti-aircraft rockets, RPG’s, munitions, guidance systems, the works. Arms. It’s not a walmart truck full of pistols and varmint guns. So why does the government sell this stuff to other people (people who would do harm to us, and have)…. but not allow its own citizens to have real arms. RPG’s don’t kill people. People kill people. No?

Posted by AlkalineState | Report as abusive

Yes, I see your point. Taking that into account, I hope we learn to understand what our forefathers intended, not what some modern sophist can twist the almost ancient written word into. The theme of the article I guess.

Posted by tmc | Report as abusive

Since the Constitution does not mention guns or firearms, and since ‘arms’ is a much broader term than just guns (as noted above), it appears we need to go back to the drawing board regarding the meaning of the Second Amendment. Couple that with its very poor wording (‘well-regulated’ and ‘shall not be infringed…. found in the same sentence), and it’s time for some legal clarity on the matter. And I’m not talking random case law here and there. We need national legislation laying it all out. What is legal, what is not. What constitutes infringement, what is are ‘arms,’ what is a well-regulated militia. Other federal laws include definitions. The Second Amendment should also.

For the record, gun control works. We know this because the countries that have gun control have far fewer gun deaths (tens of thousands fewer each year). Also for the record, gun control when you already have 300 million guns in the population…. does not work. It can’t work. The weapons are already out there. Any effort to confiscate or ban further would be bogus. But we need a clear path going forward, and it starts with legal clarity.

Posted by AlkalineState | Report as abusive

I was wondering if the author was going to cover a ban on automobiles. It seems they cause the tragic deaths of many as well.

Posted by rikfre | Report as abusive

The automobile analogies are kind of played out. Are the gun owners really asking to have point-of-sale tracking, taxing and registering of all guns, the way we do with vehicles? On every sale and re-sale? Titles filed with the county, and annual registration fees so we can track who the hit-and-run guy was?

I didn’t think so. We don’t ban cars, but we regulate the hell out of them. And we use them for a public revenue stream. Is that what you want to do with guns? Then enough on how similar they are.

Posted by AlkalineState | Report as abusive

NAGR, what an appropriate abbreviation.

Posted by borisjimbo | Report as abusive

The problem isn’t gun politics. It’s unidentified, unregulated sociopaths. It’s a PEOPLE problem. We need to identify and lock up the nuts(politicians excepted, of course).

Anyone got an idea how to do that, now’s the time!

Posted by OneOfTheSheep | Report as abusive

From the article:The “right to bear arms,” Scalia wrote, only applies to “the sorts of weapons … in common use at the time” of the Second Amendment – which was 1791. What was “in common use” then?—That is NOT what Scalia said! Scalia said “the sorts of weapons…in common use at the time.” Not “at the time of the Constitution.” With that finding as anchor, the Court ruled a total ban on operative handguns in the home is unconstitutional, as the ban runs afoul of both the self-defense purpose of the Second Amendment – a purpose not previously articulated by the Court – and the “in common use at the time” prong of the Miller decision: since handguns are in common use, their ownership is protected. AR15′s are in common use TODAY. Get it?? Scalia himself owns a large collection of firearms and is an avid shooter, they aren’t all muskets and flintlocks. This entire article is garbage, and is intentionally lying to the public. Disgraceful….

Posted by Mastafing | Report as abusive

I wrote an email to my rep in Congress about two weeks ago and put >No more gun control< in the subject line. I’m not going to get into the email I wrote, but their response is below, and, I agree with it…

Thank you for contacting me in the aftermath of the tragic shootings in Newtown, Connecticut to express your concern about proposals that would restrict the Second Amendment rights of law abiding Americans. I share your concerns.

As a father and a grandfather, my heart goes out to the parents and families of these children, and the families of the teachers and school employees whose lives were so tragically cut short. We all grieve as a nation over this senseless tragedy. We are all interested in looking for real solutions that will help prevent such tragedies in the future.

Before jumping to conclusions and possible solutions as some politicians and activists have already done, I believe that we need to develop a more complete understanding of what happened leading up to this tragedy. In particular, we need to understand more about the perpetrator and his background and mental state of mind. Too often Washington is tempted to jump quickly to conclusions and quick fixes without fully understanding the complex issues involved and adopting “solutions” that fail to address the underlying problem.

Clearly, the individual who perpetrated this terrible act (Adam Lanza) was mentally disturbed, and news sources thus far indicated that intervention was seriously lacking. The specifics of any mental or developmental disability from which he suffered must be fully understood and investigated. Understanding more detail on this subject will play a significant role in developing interventions to prevent future Adam Lanzas from carrying out such unthinkable acts.

Also, some media reports have indicated that he was on psychotropic drugs. We need to understand what drug or drugs he was on and what role, if any, these drugs may have played in his mental state and aggression. Some reports indicate that his mother was in the process of having him committed to a mental institution. Is this true? And, if so, what role may this have played? What early warning signs were there? What actions were or were not taken? What barriers to intervention exist and what changes in law might be needed to address such deficiencies?

Additionally, media reports indicated that Lanza spent a considerable amount of time playing violent first-person shooter video games. What role if any did this play particularly when combined with his mental instability, and possibly being on psychotropic prescription drugs? You may recall that serious mental problems and addiction to violent video games were also traits that investigators uncovered when investigating the murders carried out by James Holmes at the movie theater in Aurora, Colorado.

A Washington Post poll following this tragedy reports that a majority of Americans believe that this incident reflects a larger problem in American society. Some have suggested that the culture of violence is poisoning the minds of children and these games are desensitizing children to the reality of violence. The Parents Television Council reports that the average child graduates from elementary school having seen 8,000 murders and more than 100,000 acts of violence on television. By age 18, the number of murders is up to 40,000. Can this level of exposure be a factor in already troubled youths committing aggressive acts, including murders?

The issues at hand here run deep and deserve a broader discussion and investigation. The issues involved also cross federal and state jurisdiction and thus any solutions, once we understand all of the issues at hand, may merit consideration at multiple levels.

Many long time advocates of restricting the Second Amendment began calling for more gun control in the immediate aftermath of the shootings. However, one must first consider that the state in which this took place, Connecticut, already has some of the most restrictive gun control laws in the country and those laws did not prevent this unthinkable act. Initial reports indicate that the firearms belonged to the shooter’s mother, who herself was a victim of Lanza. We need that part of the investigation to be completed so we know for certain whether the firearms belonged to Ms. Lanza. If they do – and were in compliance with current law – then we need to recognize that broad-base firearms laws are not likely to be effective in preventing gun violence in the future.

A common thread of serious mental imbalance, increased aggression, excessive exposure to violence through various media, and prescription psychotropic drugs, and the failure of early intervention have been a common factor in similar acts of violence.

I look forward to a complete investigation into this tragedy so that any proposed solutions are focused on the specifics of the case to address this growing concern of mentally unstable individuals and firearms crimes.

End of email…

Anyone that thinks Feinstein, Boxer, Schumer and other gun grabbers are going to waltz into DC and pass bans are sorely mistaken. There is going to be a fight.

Posted by lawgone | Report as abusive

Mastafing, you are misquoting Scalia’s opinion. You should take a sedative, and go back to re-read the case when you are in a calmer state of mind. “At the time” does not mean “today,” no mater how desperate you are to construe it that way. It means “at the time.” Scalia is an “original intent” jurist, and you would have a mighty hard time arguing that that James Madison intended to leave machine guns and RPGs uncontrolled on the streets of modern cities.

Posted by iorek | Report as abusive