1) It’s probably a good idea for liberals to fully acknowledge the individual gun right, and focus on making the case that sensible regulation of firearms is not incompatible with that right.
2) Instead of getting drawn into debates over mass shootings, it’s probably better to focus on the broader problem of gun violence, which is actually the more pressing policy challenge in many respects, even though (paradoxically) the political world engages on it only when there are mass shootings.
I chatted about these ideas today with Adam Winkler, a professor of Constitutional law at the University of California who is the author of “Gunfight: The battle over the right to bear arms in America,” an even-handed history of guns in America and the political, legal, and policy battles over them. A transcript of our conversation, lightly edited for length and clarity, follows:
THE PLUM LINE: Former Supreme Court justice John Paul Stevens has been advocating for a change in the Second Amendment to clarify that the Constitutional gun right only exists in the context of militia membership. But this seems misguided. Isn’t the better argument to concede the individual gun right, while making the case that this right isn’t incompatible with sensible regulation of firearms?
PROFESSOR ADAM WINKLER: That’s right. The Second Amendment is not the biggest hurdle to effective gun control laws. Courts have rarely invalidated gun control laws for violating the Constitution. With over 300 million guns in circulation, and gun owners completely unwilling to give them up, even if we were to repeal the Second Amendment, we’d still be awash in guns.
Gun control and gun rights are not incompatible. Over the course of American history, we’ve always had both.
There are many gun owners out there who support more effective gun control laws. They don’t believe that their ability to defend themselves is incompatible with gun control. The better policy is to focus on getting laws in place that will do more to prevent criminals and the mentally ill from getting their hands on guns.
PLUM LINE: You write that the history shows that gun rights advocates actually have a point when they say gun control forces have wanted confiscation of their guns.
WINKLER: Historically, one element of the gun control movement wanted to take away all guns. They thought that the world would be a safer place with fewer guns. They were overly aggressive in their pursuit of gun bans. But my sense is that American politics has moved beyond that. Few gun control advocates promote the idea of ending individual gun ownership. All of the major gun control organizations have come out in favor of individual gun ownership. All of them are fighting for more effective laws to prevent criminals or the mentally ill from getting their hands on guns.
PLUM LINE: Even if gun control advocates are conceding the individual gun right, you still have gun rights forces claiming that regulations will lead down a slippery slope to confiscation. Is there anything that can get them to let go of that idea?
WINKLER: In the short term you should expect some gun rights advocates to continue to make slippery-slope arguments against gun control. They’ll argue that any new gun control law is a step towards inevitable civilian disarmament. I don’t think that argument persuades a lot of people. But it does persuade many die-hard gun rights advocates who are convinced that the government is coming to take their guns.
In the long run, I think more and more gun owners will support gun control, despite the slippery slope arguments. As long as gun owners fear that the next gun control law will lead inevitably to disarmament, it’ll be hard to get new gun control laws passed. But as the courts make clear that the Constitution protects the individual’s right to have a gun, more gun owners will support gun control.
PLUM LINE: The Court has made that clear, hasn’t it? [In the District of Columbia v. Heller Supreme Court decision that protected the individual’s right to own guns for traditionally lawful purposes, such as self-defense within the home, and a related decision that applied to the states.]
WINKLER: The courts have made it clear, but Heller was only a five-to-four decision. If the next president is a Democrat and replaces Antonin Scalia, who will be over 80 years old, Heller could change. So this depends on long-term judicial affirmation of the Second Amendment right to bear arms.
PLUM LINE: Every time there’s a mass shooting, we’re trapped in the same old debate where gun rights advocates argue that this or that new measure wouldn’t have prevented that particular shooting. And in a sense they’re often right. But isn’t the appropriate response that we should not be debating mass shootings, and should instead be debating what to do about the broader problem of gun violence?
WINKLER: People only call you after mass shootings. We should not focus our gun control efforts on preventing mass shootings. That will be nearly impossible. What we can do is to reduce the daily death toll from guns. We spend weeks talking about the 10 people murdered in Oregon. But over those weeks, hundreds of people are killed in routine gun violence. We should be trying to reduce the number of people who die on a daily basis.
Mass shootings focus our attention on gun violence. But they are the exact type of gun violence that gun control will not prevent.
PLUM LINE: And debating mass shootings acts as an impediment to the debate that we actually need to have, no?
WINKLER: Yes and No. Debating mass shootings can get us to focus improperly on what we could do to prevent the last shooting. But mass shootings also inspire gun control advocates to organize and propose legislation to reduce daily gun violence. Look at the proposals that Hillary Clinton unveiled today. They’ve not primarily about reducing mass shootings. They’re about doing more to keep guns out of the hands of felons and the mentally ill on a daily basis.
PLUM LINE: What are your top proposals, and how do you rebut the argument from the gun rights forces that these things wouldn’t make any difference?
WINKLER: The first thing we should do is require a background check on every single gun purchase. We know background checks work. Since the partial background check system went into effect in the mid-nineties, well over one million people have been denied the ability to purchase a gun. One million felons, mentally ill, and other prohibited persons were turned away. Some of those people may have found other ways to get guns. But the easiest way for them to get guns was shut off.
There’s a gun-control Catch 22. Gun rights advocates claim gun control won’t work. And they water down every legislative proposal, such that it won’t work. Then when the killing continues, they say, “look, gun control doesn’t work.” But it doesn’t work because of loopholes that have been put in by gun enthusiasts. The background check system would work a lot better if it required everyone who purchased a gun to go through a background check. Force every criminal into the black market. Don’t let criminals go to a private seller to buy a gun.
The other thing we need to do is increase funding for research on gun violence prevention. This is a major public health crisis that takes the lives of up to 30,000 people per year. And there’s almost no federal money that goes into research on how to reduce gun violence.
PLUM LINE: What’s the response to the argument that measures such as universal background checks do at least erode gun rights?
WINKLER: No right is free from minimal burdens. If you want to exercise the fundamental right to vote, you have to register. This idea — that minimal burdens that don’t prevent any law abiding person from getting a gun is a violation of the Second Amendment — is just wrong. We have a long history and tradition of gun regulation. And it’s hard to say that background checks really inhibit anyone’s right to bear arms when we’ve had background checks, and we have 300 million guns and any law-abiding person can easily obtain one.