Two weeks ago, the U.S. Senate voted down a bipartisan bill to expand firearms background checks to include weapons purchased at gun shows (where currently, no background check is required). The laudable legislative attempt was the first such federal attempt to initiate changes in gun ownership laws in the last generation, and came in the wake of December’s Sandy Hook shooting. The effort was cobbled together in an attempt to restrict the possibility that guns may errantly end up in the hands of criminal and would-be mass shooters.
As per routine, many lawmakers felt obligated to vote along ideological lines rather using reality and the need to at least create a starting point to address the free-for-all gunplay that seems to have been running rampant in the news of late. And as those conservative lawmakers who voted not to enact the attempt to curtail the proliferation of guns attempted to justify their vote with the usual talking points, their assertions were met with derision from the fellow moderate and liberal lawmakers who supported the bill. As the bill was voted down, vocal condemnations of “shame on you” could be heard from the Senate gallery by observers, who’s outburst reflected the polls showing that a majority of Americans (with numbers varying state-to-state) supported expanding the background checks for guns were promptly escorted out of the Senate chambers for the disruption. In addition, more than 20 major newspaper editorials—including the Washington Post and the New York Times—reflected a similar level of disgust with the vote. The Dallas Morning News opinioned that
the coward defied the will of most Americans and helped the hardliners and hypocrites prevail. They allowed the NRA (National Rifle Association) members who threatened retribution against anyone who voted in favor of the bill.
In essence, nearly all Republicans and four Democrats were too wimpy to pass the bill, rejecting what was a rather watered-down anti-gun proliferation legislation in order to get the votes necessary to pass it in the House of Representatives. This reality indicates that on the issue of regulating the proliferation of guns, there is simply no compromising on the part of some within Congress (and in the legislatures of many state governments). And predictably, most of those voting against the measure have attempted to pass off their actions as “voting my conscious.” However, the reality is that these rejecters of the bill represented a very vocal, passionate, and organized minority of rabid gun-owners—spearheaded by an effective, single-issue interests group and passing their lot off as representing the interests of the public at-large. And although the same could be said for potentially any interest group and their supporters, only opponents of regulating gun proliferation have developed an ethos that distorts the general understanding of law related to their single-minded cause issue. How so?
This distortion and rabid protection of gun privileges is an evolution—or devolution—of conservative ideology over the last generation or so. The traditional conservative voices of moderation and reason on the issue have become the fringe element within the Republican party, while extreme right-of-Reagan reactionaries have successfully polluted both the GOP as well as the body politic with their uncompromising distorted thinking in regards to the Second Amendment. Consider a 1991 editorial by noted conservative columnist George Will...
WASHINGTON — Two staggering facts about today's America are the carnage that is a consequence of virtually uncontrolled private ownership of guns, and Americans' toleration of that carnage.
Class, not racial, bias explains toleration of scandals such as this: More teen-age males die from gun-fire than from all natural causes combined, and a black male teen-ager is 11 times more likely than a white counterpart to be killed
If sons of the confident, assertive, articulate middle class, regardless of race, were dying in such epidemic numbers, gun control would be considered a national imperative.
But another reason Americans live with a gun policy that is demonstrably disastrous is that the subject was constitutionalized 200 years ago this year in the Second Amendment: ''A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.'' Many gun control advocates argue that the unique 13-word preamble stipulates the amendment's purpose in a way that severely narrows constitutional protection of gun ownership.
They say the amendment obviously provides no protection of individuals' gun ownership for private purposes. They say it only provides an anachronistic protection of states' rights to maintain militias.
However, Sanford Levinson of the University of Texas Law School says that is far from obvious. In a Yale Law Journal article, ''The Embarrassing Second Amendment,'' he makes an argument dismaying to those, like me, who favor both strict gun control and strict construction of the Constitution.
He begins with some historical philology showing that the 18th century meaning of ''militia'' makes even the amendment's preamble problematic.
He notes that if the Founders wanted only to protect states' rights to maintain militias, they could have said simply, ''Congress shall have no power to prohibit state militias.'' George Mason, a sophisticated Virginian who faulted the Constitution because it lacked a bill of rights, said, ''Who are the militia? They consist now of the whole people.''
The Second Amendment is second only to the First Amendment's protections of free speech, religion and assembly because, Mr. Levinson argues, the Second Amendment is VTC integral to America's anti-statist theory of republican government.
That theory says that free individuals must be independent from coercion, and such independence depends in part on freedom from the menace of standing armies and government monopoly on the means of force.
In the most important Supreme Court case concerning Congress' right to regulate private gun ownership, the court, upholding the conviction of a man who failed to register his sawed-off shotgun, stressed the irrelevance of that weapon to a well-regulated militia. Gun control advocates argue that this lends no support to a constitutional right to ownership for private purposes.
But Mr. Levinson notes that the court's ruling, far from weakening the Second Amendment as a control on Congress, can be read as supporting extreme anti-gun control arguments defending the right to own weapons, such as assault rifles, that are relevant to modern warfare.
The foremost Founder, Madison, stressed (in Federalist Paper 46) ''the advantage of being armed, which the Americans possess over the people of almost every other nation.''
So central was the Second Amendment to the understanding of America's political order, Justice Taney in the Dred Scott decision said: Proof that blacks could not be citizens is the fact that surely the Founders did not imagine them having the right to possess arms.
The subject of gun control reveals a role reversal between liberals and conservatives that makes both sides seem tendentious.
Liberals, who usually argue that constitutional rights (of criminal defendants, for example) must be respected regardless of inconvenient social consequences, say the Second Amendment right is too costly. Conservatives, who frequently favor applying cost-benefit analyses to constitutional construction (of defendants rights, for example), advocate an absolutist construction of the Second Amendment.
The Bill of Rights should be modified only with extreme reluctance, but America has an extreme crisis of gunfire. And impatience to deal with it can cause less than scrupulous readings of the Constitution.
Whatever right the Second Amendment protects is not as important as it was 200 years ago, when the requirements of self-defense and food-gathering made gun ownership almost universal. But whatever the right is, there it is.
The National Rifle Association is perhaps correct and certainly is plausible in its ''strong'' reading of the Second Amendment protection of private gun ownership.Gun control advocates who want to square their policy preferences with the Constitution should squarely face the need to deconstitutionalize the subject by repealing the embarrassing amendment (Source: "How Embarrassing: The Constitution Protects the Guns that Kill").
What Will’s essay indicates is that modern conservatism has taken reason hostage, and replaced it with blind dedication to ideology…sans the flexibility of years past. Ronald Reagan, the president whom today’s conservatives love to invoke as being representative of the embodiment of political conservatism had no problem being flexible on the issue of regulating guns. As governor of California, Reagan signed one of the strictest anti-gun laws in the nation, the Mumford Act. The law was a response to the Black Panther Party exercising the Constitutional right to bear arms in its goal to protect themselves from openly hostile police forces that were known to be brutal against blacks and other minorities of the time.
There are NO unrestricted laws. Gun laws are no different. Congress regulated “Tommy” machine guns and “sawed-off shotguns” during the gang wars of the 1930s and the growing tide of gun-related crime during that tumultuous period of time. So gun owners, get a grip on reality! And leave the notion that the Second Amendment cannot be adapted (notice I didn't say "eradicated") to suit the needs of a modern violent America in the land of make-believe!
Satirist John Stewart's recent roasting of the Senate vote to reject expanded background checks
See also: "Gun Control...No! Responsible Gun Control...Yes?" and "Too Many Rights Make Wrongs."