Since the 1980s, the pro-gun camp has sought to loosen or eliminate existing gun laws while resisting any new legislation, asserting that there should be no limits on the rights of law-abiding gun owners.
Americans have a constitutional right to own firearms for self-defense and other purposes, but no right is absolute. As the founders understood, absolute freedom is anarchy. Their goal was to create a constitutional system that could balance freedom and order: Protect individual liberty while simultaneously promoting the public interest.
The claim that the Second Amendment prohibits any gun restrictions is ahistorical. As UCLA constitutional law professor Adam Winkler notes in his balanced book, “Gunfight,” “Ever since the founding of America, the right to own a firearm has lived side by side with gun control.”
Firearms have always been regulated in the name of the public good, and even iconic frontier towns like Dodge City and Tombstone had laws forbidding the carrying of weapons within city limits.
Many American gun owners view the firearm as not just a tool for hunting, recreational shooting or self-defense, but as a symbol and a guarantor of individual liberty.
The gun’s embeddedness in American culture helps explain why any reforms, including widely popular proposals like universal background checks (supported by most gun owners), provoke visceral reactions within the activist gun-rights community. Many politicians cynically manipulate the fears of ordinary gun owners for their own purposes, making the situation even more intractable.
The most vocal advocates on either side of the divide articulate mutually exclusive views. But the actual history of guns in America is far more nuanced, and our approach to firearms legislation should be nuanced as well.
Justice Antonin Scalia wrote in District of Columbia v. Heller (2008) that, “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Scalia, the conservative originalist, created an “open door” for a range of gun regulations. Winkler notes that, “Rather than give either side in the gun debate a total victory, the Supreme Court’s decision in Heller validated a compromise position on guns. Individuals have a right to possess a gun for self-defense, but that right can and should be subject to some regulation in the interest of public safety.”
Approximately 35,000 Americans die each year from gun violence. The most publicized incidents are mass shootings, but the primary cause of gun deaths is suicide (about 60% annually). Other causes include armed violence by criminals and gangs, accidental shootings, and domestic violence. Because there are multiple causes for America’s gun violence, there is no single or simple solution.
To ultimately succeed, any gun proposal must pass this three-pronged test: Is it Constitutional? Is it politically viable as legislation? Is it logistically realistic to implement?
Proposals to reduce gun violence that are least likely to pass the test should be abandoned in favor of more viable ones. This would be the first step toward achieving common ground. Scalia would undoubtedly agree.•
Atlas is a professor of political science and was the founding director of The Richard G. Lugar Franciscan Center for Global Studies at Marian University. Send comments to firstname.lastname@example.org.
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