Friday, January 11, 2013

Assault weapons ban?

By Frank Moraes 

Ed. note: Frank thinks I might disagree with him here, if only because he's shifting the argument away from assault weapons. I don't. While I do think assault weapons, which to me are weapons of mass destruction, ought to be banned, there ought to be broader gun control that includes restrictions on handguns as well as substantial waiting periods, among other things. Actually, I'm all for going much further than that, but I realize you have to be realistic if you want to get anything done. There's just no way the U.S. is about to enact the comprehensive gun legislation I'd prefer.

My only quibble with Frank's post is with his second footnote. To me, the Second Amendment does apply only to militias, not to private individuals, except insofar as it was assumed at the time that in the absence of a standing army militias would be made up of private individuals. ("If a well regulated militia be the most natural defence of a free country,..." wrote Hamilton in Federalist 29.) Just because the Supreme Court has interpreted it a certain way over time doesn't mean that interpretation is the right one, or that Madison et al. meant it that way.

As Justice Stevens wrote in his dissent in District of Columbia v. Heller (2008): 

The Amendment's text does justify a different limitation: the "right to keep and bear arms" protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase "bear arms" to encompass civilian possession and use, they could have done so by the addition of phrases such as "for the defense of themselves." 

The Framers knew what they were doing. And if they'd meant to enshrine an individual's right to bear arms in the Constitution, they would have said so.

The distortion of the Framers' intent in this regard is one of the most blatant ways conservatives have imposed their right-wing ideology on America.



Greg Sargent's The Plum Line blog is quickly becoming my favorite Washington Post reading, which is to say I turn to it more often than Ezra Klein's excellent Wonk Blog. Sargent just seems to write more about the stuff I'm interested in. Klein writes a lot more about economics, but I'm afraid I read a good deal too much economics elsewhere. Anyway. This morning Sargent was focused on gun control.

He noted a couple of articles about where the White House is regarding an assault weapons ban. The New York Times claims that they are planning to dump it and focus on background checks and high capacity magazines. But Sam Stein claims they are still pushing the ban on these guns.

I think the focus on assault weapons is misplaced. I understand that they look scary. On a recent trip to Mexico, seeing all the military with these kinds of guns was intimidating. But like syringes with drug addiction, they are just provocative and indicative, not the problem itself. To me, the thing that I most associate with assault rifles are the 30-round banana clips.

Sure, assault rifles tend to shoot huge rounds with enormous amounts of gun powder. But I think we can all agree that the main problem is the bullet itself. A handgun with a 30-round clip would have done a similar amount of damage. The biggest problem is that a shooter can continue to shoot -- 30 times! -- without reloading or grabbing another gun.

There is also the issue that "assault weapon" is not the most well defined a term. It's not that I think these are great guns that we ought to promote. In fact, they are designed to appeal to a certain kind of thinking. We don't need more people thinking we are on the verge of revolution. But the design of these guns is essentially a cosmetic issue.

Given that we will be limited in what we can do about guns in this country, I think we need to first determine what will be the most effective measures. If I had to pick one change, I would require a two-week waiting period for guns -- especially handguns -- at the national level. Currently, very few states require any waiting period at all. Gun suicides are still the number one problem and waiting periods help reduce these because, as they say, "Suicide is a long term solution to a short term problem."[1]

Additionally, I do not see any need for large-capacity magazines. Most often, a limit of ten rounds is proposed. I think we ought to take this down further, but I don't claim to be an expert. I'd also like to see something done about handguns. But I'm not suggesting banning them. I just don't think we could get such a thing through Congress, much less the courts.[2] But I do think that public education campaigns could convince a lot of people that their handguns are more likely to harm them than save them. Again: my concern is overwhelmingly suicide but also accidents.

We can ban assault weapons. I'm not against it. But doing so is like getting China to more rigorously enforce our intellectual property laws: it makes more effective policies less likely. Let's face it: all options are most definitely not on the table. I haven't heard any discussion of handguns, which are responsible for most gun homicides and suicides. Instead, it is all about assault rifles, which are actually a fairly minor problem. And that's fine: death is death. But I also haven't heard much talk of waiting periods. And that's criminal. 

[1] I don't mean to suggest that suicide is always irrational or that it ought to be criminalized. I do think, however, that the vast majority of suicides are mistakes and that as a society, we should do everything we can to help those unfortunates who are driven to it.

[2] It is not true that the Second Amendment only applies to militias. Since around the time of the Civil War, the courts have interpreted the Constitution to mean that individuals have a right to own guns. This right is not going to change unless we change the Constitution. Thus: this right is not going to change. 

(Cross-posted at Frankly Curious.)

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  • Let me expand a little on the Second Amendment. I completely agree that the intent of it was for militias. But I think a 150 year court history should not be overturned without great thought. I would like to think that 40 years of Roe V. Wade is settled law.

    I think that Stevens' argument here is dangerous. I've heard very similar arguments about the First Amendment: it applies only to political speech. It sounds awfully originalist, to be honest. (Note: I have great respect for Stevens.)

    Don't get me wrong, I mostly think that the Second Amendment is a waste. It is about as important to our continued freedom as the Third Amendment's prohibition of the quartering of soldiers in private homes. But I do think that the Constitution is a living document and what it is today is not what it was 221 years ago.

    By Anonymous Frank Moraes, at 10:47 PM  

  • I agree with you on that, and in general I'm anything but an originalist as that is understood by conservatives. The better argument, perhaps, is that the way things were over two centuries ago is nowhere near what they are today, and so a guarantee of the right to bear arms so that the newly independent nation could defend itself is simply a thing of the distant past.

    And you're right that undoing so much court history is not just unlikely but generally imprudent. But of course a lot of things have been "settled," including the status of the races. Ultimately, there had to be Brown, and so many other "unsettling" cases/rulings.

    By Blogger Michael J.W. Stickings, at 6:34 PM  

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