The Cultural Clash Over Guns
posted by Dan Filler
With Friday’s DC Circuit opinion substantially limiting the power of DC government to regulate gun possession, a huge new front of the culture wars may be set to begin. If the Supreme Court decides to step in, and decide the degree to which the Second Amendment limits governmental regulation of individual gun possession, we can expect interest groups on both sides to amp up the rhetoric. And if the Court were to give significant new force to the Second Amendment – subjecting state and local gun laws to any serious judicial review – we may see new brushfires surface across the country.
In general, people from more rural areas – as well as residents in metro areas in largely rural states (like Alabama) – seem hostile to gun control laws. Most of this hostility is of the slippery slope variety. These individuals are primarily attached to their hunting guns. And most experience virtually no regulation of rifles or shotguns. Many of these folks want to own handguns as well, but since handgun control laws are most common in urban areas, few of them are likely subjected to serious handgun control either.
Notwithstanding the lack of much actual regulation of these citizens’ guns, the NRA has effectively stoked their anxiety over gun control on the basis of slippery slope fears.
At the same time, gun control advocates seem to have had far less success convincing national (and even state) legislators to extensively regulate guns, notwithstanding what has appeared to be a very narrow application of the Second Amendment by courts. Indeed, the Second Amendment has proven to be an object lesson in the effectiveness of a constitutional provison even in the absence of judicial enforcement.
But it seems to me that the NRA does best in this environment. As long as the battle stays in the legislatures, gun control opponents don’t have to fight the second front: antimajoritarian interference by courts. Once gun control stops being simply a legislative issue, but part of the broader debate about the role of courts, it will be easier for gun control advocates to tap into anxiety about judicial activism that has been developed, in recent years, by conservatives. It will also create a bit more confusion across political lines by further showing how an “activist court” can both produce Roe v. Wade and the freedom to pack. On a practical level, a developed Second Amendment jurisprudence will produce loads of litigation as cities and states attempt to figure out what sorts of regulation are acceptable. This could help gun control activists by putting the issue in the news regularly – free media to counteract NRA dollars.
I can already imagine the ad campaign: “Millions of Americans have voted to make their streets safe again. The Supreme Court’s response? Screw you. Bring on the guns!” No matter what the slogan, expect fresh turbulence along the urban/rural and north/south divide if the Supreme Court gets into the gun control business.
March 12, 2007 at 12:07 am
Posted in: Constitutional Law
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Responses (8)
Anon - March 12, 2007 at 4:45 pm
I believe you mischaracterize the opposition of people to gun control laws. You state the opposition to be of a slippery slope variety, based on a fear of removal of hunting weapons. Many people oppose gun control laws, as evidenced by the very case you commented on, because of personal safety issues. Many people want to(and do) own guns for self-protection, they are opposed to laws which remove this right.
GMC70 - March 12, 2007 at 5:04 pm
I’ll say this once:
The second amendment is not about hunting; it never was. It was about “the people” and their right to common defense and to deter tyranny by being armed. Period.
No one is advocating that, of course, certainly not in any imaginable sense given the current political climate. Elections still work, courts still function, the 1st amendment is still alive and well. Of the four boxes America is built on (ballot, jury, soap, and ammo), the fourth is to be opened only with great caution, and only after the first three are no longer available. It is, however, the deterrent effect of the fourth that keeps the first three operating, in large part.
Remember: the 2nd amendment ultimately guarantees all the others.
If we are to hold otherwise, the rest of the Bill of Rights is at risk. And we are done.
Mike O'Shea - March 12, 2007 at 8:52 pm
Hi, Dan.
If we are interested in defusing cultural conflict over guns, it seems to me that the best way to achieve it is for the Supreme Court to affirm Parker in its entirety, adopt a strong individual-rights conception of the Second Amendment, but decline to incorporate it against state and local governments.
That is, interpret the Second as a federalism provision — not in the “collective rights” sense that renders it a nullity, but analogously to the way that the Court interpreted the Commerce Clause in Lopez and Morrison. Those cases make clear that affected individuals can bring suit to invalidate federal laws that exceed Congress’s enumerated powers under Article I, even though such laws would clearly be valid if enacted by a state government. Treat the Second Amendment the same way, as marking the legitimate boundary between national and local authority.
In short, your line of reasoning suggests that the federal courts should (1) put Congress decisively out of the business of passing further gun control legislation; (2) peel back a few particularly abusive provisions of existing federal law; and then (3) let things go on as they are now. Chicago, NYC, and California keep their various gun bans. Floridians and Oklahomans keep their state constitutional rights to keep and bear arms, their liberal concealed-carry laws, their pro-self-defense criminal codes, and their possession of serious modern defensive firearms.
(As a purely descriptive matter, I would add that gun ownership in America isn’t just about “hunting” and hasn’t been for a long time. Visit a local gun range sometime. Go to a big box sporting goods store and watch the types of ammo people buy. Or ask the dozens of Democratic Congressional reps who lost their jobs because of the now expired 1994 semi-auto ban.)
So, adopt a strong, non-incorporated Second Amendment. The states and municipalities work things out according to local cultural values, and the collective political temperature in Congress drops several degrees. A lot of American gun owners suddenly feel free to support Democrats for Congress and the Presidency. No more 1994s.
How’s that sound?
Dan Filler - March 13, 2007 at 12:27 am
I think people peg me incorrectly on this issue. I’ve never been particularly taken by either side of the gun debate. I think that a jurisprudence that allows review of gun control, but that accepts reasonable regulation, is pretty balanced. I wouldn’t vote for or against a candidate on the basis of gun control. I just think that from the point of view of politics and culture, having the Supreme Court step into the mix by giving heft to the Second Amendment will trigger all sorts of interesting effects. It will take a debate that is driven heavily by the NRA, on the NRA’s terms, and place it front and center for people who frankly haven’t cared that much until now. Having an annual Supreme Court Gun Docket would be a whole new dimension for scotus blogging.
As for the hunting part, I would bet – and bettors can be wrong – that the majority of people who highly value the Second Amendment (and back that commitment with dollars) have hunted in the last five years. There will always be others who find the issue compelling, but I suspect they are not the backbone of the movement.
Mike O'Shea - March 13, 2007 at 3:39 am
I still think you’re oversimplifying. Hunting originally provided the cultural matrix for American firearms ownership, but things are more diverse now. Dave Hoffman linked here a few months ago to a Newsweek article about the slow decline in American hunting; this, even while gun rights go from strength to strength in the state legislatures.
Take the revolution in “shall issue” licensed concealed carry of handguns that has swept almost 40 states. In many of those states (e.g., MO, KS) concealed carry won legislative supermajorities strong enough to override the governor’s veto. How was that about hunting?
There are still many, many hunters out there (a fine thing, in my view), but some of the most vocal, committed gun rights supporters come from the ranks of the suburban/exurban plinkers and defensive shooters. Look at the blogosphere.
More generally, your post and your comment tend to attribute agency in the field of gun rights advocacy not to individual Americans, but to “the NRA,” “NRA dollars,” “the NRA effectively stok[ing] … anxiety,” etc., etc. This picture is highly inadequate, unless you mean “NRA” as a shorthand for the organization’s millions of members.
While I know you don’t intend this, the view of gun rights supporters as NRA puppets has just a whiff about it of the Washington Post’s infamous reference to evangelical Christians as “poor, uneducated and easily led.”
[A] developed Second Amendment jurisprudence will produce loads of litigation as cities and states attempt to figure out what sorts of regulation are acceptable. (original post)
Not if the Amendment confers an unincorporated individual right. Then it’s just a limit on the feds and D.C. There’s a serious argument that this position is already implicit in the structure of American firearms regulation. As you point out, there are severe restrictions on guns in a number of U.S. states and municipalities, but federal regulation (while far from trivial) is more permissive, and proposals for new federal restrictions face tenacious opposition.
As long as the battle stays in the legislatures, gun control opponents don’t have to fight the second front: antimajoritarian interference by courts.
Nah, a vigorous 2A is a no-lose proposition for gun rights advocates. If they lose in the courts, fall back on the legislature and they’re no worse off than they are now with judicial nonenforcement of arms rights.
It will also create a bit more confusion across political lines by further showing how an “activist court” can both produce Roe v. Wade and the freedom to pack.
First, just to keep clear, Parker isn’t about “freedom to pack,” it’s about the baseline freedom to keep a functional defensive firearm in one’s own home. Second, I suspect most conservatives will distinguish Roe from Parker and future cases on the basis of textualism. At the simplest level, the document speaks of a “right of the people to keep and bear arms,” while it doesn’t refer to abortion at all. There is, of course, room for argument about how broadly the Second Amendment right sweeps, the effect of the prefatory clause, etc., but even the most aggressive versions of 2A review would seem to fall short of the level of activism in Roe.
If anything, the courts face a legitimacy problem that cuts in the other direction. How can they justify (in terms that are not crassly political) a refusal to apply the Second Amendment in some kind of fairly vigorous fashion, given the elaborate counter-majoritarian structures they’ve built upon the Establishment Clause (which doesn’t even refer to a “right of the People”) and, in Judge Kozinski’s phrase, upon “the white spaces between lines of constitutional text” such as the Due Process Clause.
In the past decade, coalitions of liberal and textualist-originalist Supreme Court Justices have come together to breathe new life into the Confrontation and Jury Trial Clauses. Great stuff. Why not the Second Amendment?
Christopher Johnston - March 13, 2007 at 2:45 pm
“I can already imagine the ad campaign: “Millions of Americans have voted to make their streets safe again. The Supreme Court’s response? Screw you. Bring on the guns!”
As John R. Lott, Jr. in his book “More Guns, Less Crime” has proven, guns in the hands of law-abiding citizens has reduced crime because the criminals don’t know who is armed and who isn’t. In D.C. people being robbed at gunpoint in broad daylight is common, as it also is in New York, Boston, and Chicago. This is presumably because the criminals have no fear that the citizen will be armed and able to defend themselves. I live in New Orleans, recently determined to be the deadliest city in America, and if you go out regularly in the city after dark without a weapon, you simply don’t value your own life.
GMC70 - March 13, 2007 at 4:05 pm
Interesting idea in upholding a non-incorporated 2nd Am. The problem with that (and I’m a conservative that believes in full incorporation) is that in the debates over the 14th Am, it is clear that a right to keep and bear arms is one of the primary rights sought to be incorporated against the states, as protection for freed blacks against their former masters.
In short, the 14th amendment INTENDED incorporation, and a 2nd amendment right was one of the prime rights intended to be so incorporated against the states.
Your proposal is a political compromise, not a constitutionally appropriate answer.
PubliusFL - March 15, 2007 at 5:00 pm
GMC70: The 14th Amendment clearly intended incorporation, but it clearly intended it through the “privileges and immunities” clause. We can establish the 2nd Amendment as an individual right now, and wait for incorporation until the Supreme Court decides to revisit its misguided privileges and immunities jurisprudence.
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