A Constitutional Case for… Gun Control?

Okay, Atlantic, you have my attention.

History and textual analysis aren’t the only factors that matter. Our lives do, too.

You are losing my attention. I have this allergy to emotively formed arguments shaping law and policy that needs to be based in unbiased, grounded, and reasoned looks at effective solutions.

“Our lives do, too.”, excuse my french but, no shit. You, and I, and everyone maintaining their natural civil rights, constitutionally protected, and with the legal autonomy to act in our own defense is the whole argument.

But..

March for Our Lives chose to “upend the norm” of factual and cased based arguments in its amicus brief—a legal filing written by an interested outside party—in the upcoming Supreme Court case New York State Rifle & Pistol Association Inc. v. City of New York. Its brief “presents the voices and stories of young people from Parkland, Florida, to South Central Los Angeles who have been affected directly and indirectly by gun violence.

In short, these are an emotional appeal in place of larger analytical evidence in the hope that emotions play better. These arguments would likely stand well in a criminal case against a suspected perpetrator or a civil case of a similar situation. But this isn’t a criminal or civil case for damages, it is a case of constitutional law. It is a case asking if civil rights can be curtailed or revoked at whim by a legislative body, beaurocrat, or voting majority.

This case isn’t about saving lives, many think it is and have been swept up in that fervor. No, this case is about power.

The Supreme Court confirmed earlier this month that it would hear the case later this term, its first gun-rights case in nearly a decade. At issue is whether a New York City regulation that prevents licensed gun owners from transporting their firearms to second homes or gun ranges outside the city runs afoul of the Second Amendment.

It runs afoul.

The stakes are high: The case offers the Court’s conservative wing a vehicle to further solidify legal barriers to firearm regulation, a decades-long project that has thus far been quite successful—in part due to the appeal of a unified constitutional narrative that pro-gun voices have invoked across both the legal and the political spheres. The Second Amendment, they say, protects an individual’s right to gun ownership, a right rooted in deeply held notions of self-defense and individual reliance.

Read: Remember what “shall not be infringed” means.

For decades, gun-control advocates have left this narrative partially unanswered, offering depressing statistics but no compelling constitutional principle…

That’s because there isn’t a compelling constitutional principle. The language manipulation and statistical highlighting to make numbers look far worse fall apart when objectively looked at. When you have to roll in the “military age male 15-21, or even 25” to make your child gun death statistic look terrifying… you are stretching.

They cannot afford to do so any longer. The March for Our Lives brief marks the beginning of a long-needed effort to offer a pro-gun-control constitutional narrative, one that calls attention to the constitutional rights and goods vindicated by gun regulation.

Oh? I’m interested again.

These include a collective understanding of self-defense,

You lost me again.

Collective and self don’t jive. If the self doesn’t have the autonomy to act independently of the collective to save their life/lives then there is no right to self-defense. I know what their idea of collective defense is, the police, you know the ones who’ve been in the news for literally shooting and killing people in their own homes recently. That’s the collective defense, along with hoping people don’t act badly.

[Now those cases of Police shootings involve a combination of poor decisions, poor judgement, and poor communication that led to people dying. I don’t for a second believe any of the officers were actively hunting the people they ended up shooting, but mistakes were made and they cost lives]

as well as constitutional guarantees such as the right to public assembly and interests such as access to public education. The point is that the right to bear arms is not the only constitutional commitment implicated in the guns debate, and the Court ought to consider those other commitments as worth balancing with the right to bear arms, not as inherently subordinate to it.

I see the direction they are leaning towards, and I cannot agree. The legal bearing of arms does not inhibit the right to public assembly (until the Government starts shooting at you and you can’t shoot back *cough Kent State cough*) nor does it inhibit interests like public education. This isn’t a balancing act that if we suddenly get to X number of weapons in circulation all public schools must close and no one can protest anymore, we’re living in the normal risk assessment matrix that we always have. Hell, our modern variant is really damn safe by historical standards.

We call our foundational legal text a Constitution because it constitutes our legal and political reality. The March for Our Lives brief is a reminder to the Court that it cannot ignore the world it creates through its interpretation of the Second Amendment. The brief asks the Court to confront the consequences of the gun lobby’s myopic approach, and it does so by bringing in the voices of young people whose lives have been upended by gun violence.

In what other scenario would we do this? Take the word of children into account like they are subject matter experts? Would we trust a teenager to lecture on the merits of commercial vehicle safety just because they witnessed the Nice, France massacre? Equating “experience” with “expertise” is something we are tragically guilty of in emotive arguments, and we need to stop that.

Next the piece goes into some of the stories it details, we come back to it here

Gun-control advocates need their own constitutional narrative, one that incorporates a broader conception of self-defense into its vision. Since Heller, the Court has drawn a straight line connecting the broader, constitutionally grounded right to self-defense to the more specific right to individual gun ownership. But defense of oneself and one’s family can be pursued in a variety of ways. An individual right to gun ownership offers one path, deputizing all people to defend themselves with a firearm at their side. Gun regulation offers another such path to self-defense, one vastly more efficacious and preferred by the American public. It represents a mode of preemptive self-defense, whereby the state is tasked by its citizens with limiting access to deadly force.

Again with this collective right to self-defense. Preemptive self-defense is a new one, and oh does that sound like some utopian precrime pipedream. Efficacious or “effective” is a bold word to describe preemptive self-defense, considering the millions of DGUs estimated each year. And to the victims of homicide and assaults of all spans, how is that preemptive self-defense working out? I’m sure it makes them feel much better that it preemptively didn’t work worth a shit.

And then there’s the last bit. Limiting access to deadly force. How? How precisely is the government effectively “limiting” that. We have about a 3:1 homicide ratio of blunt force to “assault weapons” (that’s boldly and errantly assuming every single rifle death was an AR or the like). But please, tell me more about the state “limiting access”, but exempting themselves and thereby monopolizing, lethal force.

On this view, when we urge the government to enact universal background checks, raise the legal age to purchase firearms from 18 to 21, and ban the sale of assault weapons, we are seeking to use the government’s regulatory authority—rather than, say, the arming of every schoolteacher—to defend ourselves and our children. That the gun-rights movement has somehow managed to monopolize the constitutional mantle of “self-defense” is as impressive a PR feat as it is absurd.

I’m entirely unsure what impressive absurdity they think we pulled as a ‘PR stunt’ to “monopolize” the constitutional argument. Self-defense, like self-help and self-reliance, have a lot riding on one person, yourself. If someone has convinced you otherwise, I have a beautiful bridge for sale, connects two minor peninsulas of a little place called Michigan, no big deal but I have to move it and take a pretty big hit. It’s a hell of a deal.

In addition to self-defense, other obvious rights and interests of constitutional magnitude are imperiled by gun violence and vindicated by regulation. The right to assembly is put at risk when a single shooter can rain bullets on a peaceful political protest.

That guy was shooting the cops. Also, completely and totally illegal. They blew him up with a robot. Also, ‘Government’ is well known for shooting peaceful political protests. “Not ours!”, you say? Kent State.

Freedom of the press is undermined when published words can give way to mass murder, as occurred at The Capital’s Annapolis, Maryland, office in 2018.

Also, totally illegal. Also, someone torched an animation studio in Japan, killing 33, so how does that limitation on lethal force thing go with gasoline? Oh, and France at Charlie Hebdo. Where was that collective preemptive self-defense?

Other cherished constitutional interests, such as the freedom to vote or access to public education, cannot be secured when mass shootings are a constant specter outside polling places or at the schoolhouse gate. And this is to say nothing of the value of protecting life, a fundamental basis of the Constitution itself that is incompatible with an ever-expanding conception of the Second Amendment.

Self. Defense. Protecting your life and the government enabling you to do so because it accepts the absolute truth that it cannot guarantee you protection, something they legally acknowledge and have exempted themselves of liability for. That fact really undermines the whole concept of a collective right to self-defense.

The article then goes onto excoriate the courts that even upheld gun regulation for not including these “rights” as part of their argument and hoping they become case law before expounding on how “novel” an idea it is to lead this legal challenge with emotive arguments from the mouths of babes.

Quick! Blame the dead guys!

Their interpretive methodologies—aptly named “textualism” and “originalism”—deny constitutional imprimatur to rights and interests that cannot be identified in the Constitution’s plain text or found in narratives premised on the writings of long-dead men.  

There it is! I was waiting. ‘They’re old and dead‘ so we can throw the framers intent of prohibitive restrictions on the U.S. government out the window.

But it need not be this way. In the words of Supreme Court Justice Robert Jackson, constitutional interpretation that ignores its real-world implications “will convert the constitutional Bill of Rights into a suicide pact.”

And constitutional interpretation that bows to emotive arguments instead of it’s core principles and facts are just as lethal.

Jackson surely had no idea how literal his suicide metaphor would become. Constitutional narratives that account for the world they engender and the way they balance competing rights offer an answer to his admonition, infusing constitutional debates with practical lessons drawn from reality.

Just gloss over the fact the U.S. has a very, “meh” suicide rate on the world scale (less than half that of the top contenders) or that rate is independent of method, it’s okay. We’re lower than Switzerland, Poland, France, Belgium, Japan, and Finland. The suicide analogy seems uncouth and misplaced.

In one of the most famous works of legal scholarship of the 20th century, the late Yale law professor Robert Cover wrote, “No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.” According to Cover, narrative is what gives law moral authority, what imbues it with the power not to compel mere obedience, but to embody the legitimate choices of those it governs. It is why Thurgood Marshall, then a lawyer arguing Brown v. Board, emphasized the psychological harm inflicted on African American children by segregation, rather than appealing to the text of the Equal Protection Clause or constitutional doctrine alone. Law is a distinctly human endeavor, and narrative is what connects dry legal text to the world it creates.

But only if it’s their narrative, apparently. They can conveniently ignore all the narratives of people using their arms in individual self-defense (because that whole collective thing failed again) but… a court cannot. If the narratives of these children have the weight of some manner of expertise, then every case of armed self-defense and every illustration of the failure of the collective right has that weight too.

The great tragic irony here is there aren’t many greater examples of the failure of the collective self-defense right concept than successful attacks on places that should be protected. Parkland had a Coward… oh, I mean Broward County deputy on campus. Fort Hood is an armed military installation, attacked by a field grade officer (Major), with a handgun.

The “Constitutional Case” for gun control doesn’t exist, not because of a disregard for some of the very base principles like the sanctity of life, but because the argument itself is nonsense. The idea is pulled from a swirl of different utopian fantasies with no basis in objective fact, and pointing that out is somehow exactly why we need to change policy making away from objective fact.

Fact: Humans are capable of devastating violence.

Fact: No law has ever nor can ever change the previous fact.

No law can limit the methods available for a motivated person to do violence unto others sufficiently enough to justify the infringement of natural civil rights through prohibition, even if democratically agreed upon. The people lose and nobody gains anything except an illusion of safety. That illusion will break every single time it is tested with even the most remote bit of competence.

Keith Finch
Keith is the Editor-in-Chief of GAT Marketing Group editor@gatdaily.com A USMC Infantry Veteran and Small Arms and Artillery Technician, Keith covers the evolving training and technology from across the shooting industry. A Certified Instructor since 2009 he has taught concealed weapons courses in the West Michigan area in the years since and continues to pursue training and teaching opportunities as they arise.