The Newtown Tragedy: Today’s Need for Common-Sense Rhetoric and Regulation

I grew up in a family of gun hobbyists.  One of my older brother’s most treasured Christmas presents from childhood is a rifle that was used in WWII; my dad had a collection of several dozen handguns, shotguns, and rifles, including a semi-automatic AR-15 “assault rifle” and a pearl-plated revolver and holster that he bought with a “Sheriff” badge just for fun; my younger brother is an ex-Marine. Throughout childhood, I spent every weekend of hunting season (and many summer weekends besides) on a West Texas ranch, shooting dove, quail, ducks, and exploding targets attached to grapefruits and ice blocks. And when I went to babysit my niece and nephew for a week in Austin, my brother’s first task was to show me where all of the house’s handguns were kept and how to open the safes he kept them in.

I don’t own a gun myself, and I don’t have any plans to get one. But I understand the utility of guns for both recreation and defense. Of course, as a scholar of health law and constitutional law, I also understand how complex the questions are that guns present for public health and individual liberty. But, as usual, my sense is that there is an obviously correct approach to those complex questions: an approach that seeks balance and optimization. A ban isn’t the right answer, from a policy or constitutional perspective, but in light of the very real dangers that guns present, neither is a strong Second Amendment bar to regulation. Of course, this view represents the current state of the law in both legislation and Supreme Court precedent; the balanced view is inconsistent only with the debate’s heated rhetoric. Here are a few thoughts:

In the wake of September 11, no one suggested that we ban the Boeing 757 or 767—the two jet models that the terrorists used to attack the twin towers and the Pentagon. But neither did anyone trot out our constitutional right to travel (yes, that exists) as an objection to heightened restrictions on who could pilot commercial airliners or who could ride in them. Nor did anyone argue that the wake of a terrorist attack was the “wrong time” to talk about increasing airport security. We all recognized that large jets are extremely useful but that, in the wrong hands, they had proven to be extremely dangerous. So we’ve done what we needed to do—arguably more than was necessary, given the reactionary nature of the regulations—to keep our jets out of the wrong hands.

The obvious retort to this implied analogy is that AR-15s are not as useful as Boeing 757s. But that’s not true. Those who advocate an assault weapons ban (or at least most of those who do so) do not want to take AR-15s away from the military or even the Secret Service. When used as intended, AR-15s with high-capacity magazines are more effective than any other kind of gun. The problem, then, is not that AR-15s are useless; it’s that a small number of criminals are putting AR-15s to unintended, horrible, and tragic uses. The problem is that we too often allow AR-15s to be hijacked by terrorists.

The Second Amendment says, “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.” At the time of the founding, those words meant that the federal government could not prevent a state or private group from running a militia, and at that time, all able-bodied men had to be trained to use a musket. But the Second Amendment never meant that private citizens could own cannons, even though a prohibition on private cannon ownership would have meant, in the founding era, that a determined military could tyrannize private citizens relatively easily. Today, the Supreme Court has interpreted the Second Amendment as protecting an individual right to own handguns, but there’s no doubt that Congress may prohibit private citizens from owning hydrogen bombs or even rocket propelled grenades, even though those prohibitions mean, today, that a determined military could tyrannize us quite easily. Furthermore, the Court’s opinion in Heller made it clear that Congress and the states may place sensible restrictions on ownership and use even of handguns.

In the rhetoric that inevitably emerges after tragedies like Newtown, our country divides between two quixotic hyperboles: the fantasy that we can rid the country of all guns and the fantasy that guns will save us from tyranny and criminals. We have a constitutional right to own guns, and guns can be useful instruments for recreation and defense. We have a constitutional right to travel, and airplanes and cars are undoubtedly useful instruments for recreation and commerce. No one suggests that we should let anyone and everyone fly a jet or drive a car, and no one suggests that we should ban Boeing 757s in light of the use to which some terrorists put them. In common-sense legal circles, no one suggests that we should let anyone and everyone own a gun, and no one suggests that we should ban all weapons.

What we need today (yes, today, soon after a mobilizing tragedy) is a civilized and realistic conversation about balancing the utility of guns, including AR-15s, with the very real need to keep these dangerous instruments out of the wrong hands. What we need is a civilized and realistic conversation about regulation—a conversation that dispenses with the demonization of “gun-toting” Americans and that avoids the quixotic paranoia that we can rise up against today’s U.S. military with a few personal side arms.

(Apologies to Scott Burris for posting something very similar to his excellent discussion of vehicular regulation. We were apparently writing simultaneously!)

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