• Max Stearns

Games Second Amendment Enthusiasts Play

In 2012, in the aftermath of the Newtown Massacre, I published this

op ed, titled "The Right Time to Talk About Gun Control." I identified a fundamental problem with the argument that making lawful weapons more readily available will reduce the incidence of violent gun crime. It is certainly true that the presence of lawful guns, in some instances, operates as a deterrent. In some instances, such as with the Las Vegas shooting where the shooter was a remarkable distance from his victims, additional lawful weaponry would not have mattered. And for actual deployment to take out a shooter, those law abiding armed people must have the guns ready to deploy at just the right time, and with the requisite skill and confidence, to use them effectively under the most highly stressful and unscripted of moments, upon confronting a killer with a loaded weapon. What could possibly go wrong? Theoretical guns won’t defend in an actual shooting; skilled gun users might, but there is no guarantee that this will be the result. More to the point, there is no guarantee that the weapons in possession of good people today won’t find their way into the wrong hands tomorrow. The unlawful market for illicit guns relies on once-lawfully-acquired guns. One commentator to the op ed suggested that I should be summarily executed for suggesting a limit on his constitutional rights. The Baltimore Sun thankfully removed the troll’s comment. I will do so as well should such comments appear on this blog.

Since the more recent Las Vegas tragedy, I have continued to hear arguments against why we should not respond—ever—to horrific gun crimes with proposals for gun regulation. I’m sick of it. These are just four of the games that second amendment enthusiasts play: (1) it is indecent to respond now with such proposals in the immediate aftermath of this tragic event; (2) this is a problem of mental health, and it should be treated accordingly, (3) there is no proof that a new gun control law would have prevented the Las Vegas (or fill in any other) gun crime, and (4) the Second Amendment is a personal right, so we can’t take it away. I’m disgusted by these arguments, and take up each below:


No. It is not indecent to focus on an issue that results in the taking of innocent lives, over and over and over again, when every single time it occurs, we are told that at this very moment, discussing the issue is indecent. Imagine this: We agree that this round, so to speak, it is indecent to discuss gun control at least until some arbitrarily specified period of time has lapsed. But we stipulate that the rule to which we just hypothetically agreed no longer applies immediately following the next mass shooting. Until then, you can do whatever is necessary to get over your sense of indecency. You are on notice. Besides, we talk about how to deal with natural disasters when prompted by natural disasters. We talk about how to deal with terrorism when prompted by terroristic acts. We talk about how to cure diseases when prompted by the death of family, friends, or famous persons as a result of those diseases. And so, yes, we can, should, and must talk about gun control when prompted by mass shootings.

Mental health:

This one really galls me. Yes, those who engage in mass shootings have serious mental health problems. I am disgusted when following a mass shooting I hear that rather than discussing gun control, we must focus on mental health. There are two reasons for my frustration: (1) those who make this argument generally support cuts in funding for mental health treatment, and (2) beyond that hypocrisy, this really translates into an argument that we should never discuss gun control. Why? There will always be people with mental health problems, and however much we devote to mental health research, we will never be able to predict in advance those rare persons who, although seemingly not to have such problems, suddenly manifest them with large rounds of ammunition. Resolving this by studying mental health would require a level of governmental intrusion into our personal lives that, even aside from the fact that it would unacceptably violate our privacy, clearly would not, and could not, ever succeed in stopping most, if any at all, specific incidents of violent gun crime even if we allowed it. When conservative talk show hosts and politicians say that these incidents demand that we study mental health rather than focus on gun control, be assured that this is not because they believe such efforts would prevent gun crimes. Rather, they believe that like the unwinnable so-called “war on drugs,” it will be perpetual, thereby forever preventing meaningful efforts at gun control.

Changing the law would not have prevented this specific gun crime

This is my favorite trick of all because it is just so damn clever. We are told that we can’t discuss gun control unless and until we completely investigate this specific gun crime and then prove that the perpetrator escaped some legal loophole that if closed would have prevented this very shooting. This is a lovely analytical move because, once more, it sets up a level of proof that everyone who's thoughtful about it knows is absolutely impossible to meet about 99.99% of the time. In fact, those who make this argument, have a back-up perfectly designed to catch the remaining .01%. Here it is: They’ll almost invariably add that if you change the law, it only will affect the conduct of law-abiding people, and never the conduct of those who illegally resort to gun crime violence. And so even if changing the laws is at some level effective, gun control advocates lose because they can never prove that a person who willfully violates the law will have his conduct thereby changed. This clever argument really translates to the following economic intuition: a person who is not on the relevant margin cannot have his conduct changed by a rule that affects conduct on the margin. True enough.

This argument is particularly galling because those who make it would never let it pass in any other context. Imagine a hypothetical argument by a conservative, who disfavors economic regulation, and a liberal, who thinks all things regulatory are just grand. The conservative wishes to have an allegedly inefficient regulation repealed, claiming it is underming otherwise productive economic activity. The liberal responds that the argument fails unless you can prove that the repeal would have resulted in some specific instance of that activity, which also might have not occurred for any number of reasons separate from the regulation being discussed. The conservative would rightly respond that this is absurd. When you change a rule, you do so based on intuitions, or models, that explain likely responses in general, never at the level of a specific transaction in the marketplace. No one could ever meet that test! Indeed.

But here, the rules of analysis are suddenly flipped. The burden is now placed on the person seeking to close a gun loophole to prove beyond doubt that a change in the rule would have stopped a particular gun crime that just occurred, as opposed, say to preventing some gun crime in the future that (hopefully) we might never know would otherwise have occurred.

In fact, there’s a deeper pathology to this form of argument. Let’s assume that the point about non-law-abiding persons who commit gun crimes is correct. A change in the law will affect the likes of you and me, but not of the person prone to commit such heinous acts, precisely because they are indifferent to the niceties of legal rules. The problem, of course, is that most acquired guns start out as having been, at the earliest point in the chain, lawfully acquired by someone. Guns are the ultimate durable goods. They can kill almost forever, as long as they are not broken and there's someone to load and fire. And there are particular kinds of guns that can be specially adapted to become the equivalent of military grade weapons, and specific add-ons that can help that process. Banning guns prone to such use, or materials that facilitate such transformations, won’t stop the person who acquires existing stock illegally. But it will, over time, move toward drying up the existing stock of such problematic weaponry. Tightening these laws might not have stopped the horrific shooting in Las Vegas, but it might just prevent some crime, sometime in the future that, thankfully, we might be fortunate enough never to know failed to occur. In discussions about regulation or deregulation, we know we can’t insist on proof at the level of a specific transaction; likewise here, we cannot insist on proof at the level of a specific shooting.

You Can't Take Away My Second Amendment Rights

We treat the second amendment right as if Moses had it carried it etched on one of the two tablets down from Mt. Sinai. He didn’t. Neither did the Framers. The Second Amendment states: "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." U.S. Const. Am. II. From 1939 until 2008, the Supreme Court had interpreted this provision, consistent with the prefatory clause, not to create an individual enforceable right. I do not have the space to offer a detailed case analysis, but a few comments will suffice. In his 2008 Supreme Court Decision, District of Columbia v Heller, Justice Antonin Scalia flipped what one might view as a conventional historical or doctrinal analysis. Scalia initially dispensed with a careful inquiry into the meaning of the prefatory clause, focusing on the meaning of “keep and bear arms” within the operative clause. Scalia reasoned that because "bear" means carry, and because carry implies to and fro, and thus conduct also outside the context of immediate use in a militia, this necessarily translates into an individual right. Most notably, and most ironically, that right involves not the kinds of weapons we would expect to be of use in a modern militia, but rather, the right is broad enough to include weapons of self-defense, such as handguns, which would have no bearing on militia activity. When Scalia then revisited the prefatory clause, he reasoned that it didn’t undermine the fait accompli he has just established, namely an individual right, thereby overturning the 1939 decision, United States v. Miller, which had held otherwise. Scalia acknowledged some permissible limits on actual military style weapons, meaning that the Second Amendment protects the right to use weapons that have no bearing on the historical context of the second amendment, and applies as an individual right.

A case excerpt:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Justice Scalia was widely viewed as an originalist. I leave it to my readers to make their own judgments. Here’s mine: In the name of originalism, the Supreme Court inverted the meaning of the second amendment to allow individuals, outside any pretense of a militia related context, to have arms that are actually useless in that context. And second amendment enthusiasts, including the NRA, have fought endlessly hard to prevent restrictions on any type of weapon, well beyond that the framers could ever possibly have imagined. To make matters worse, in 2010, the Court applied the Heller ruling to States and municipalities in McDonald v City of Chicago. In that case, the Court’s opinions were so badly fractured that no majority embraced a common rationale justifying the result.

I will not deny that thoughtful scholars might disagree with my analysis. That's what Constitutional Law professors do. But here’s what they can’t disagree with: longstanding and established constitutional doctrine does not establish that the second amendment embraces an enforceable individual right. And certainly not an individual right to have any kind of gun simply because, well, a person wishes to have it.

I titled this post “Game Second Amendment Enthusiasts Play.” Games might imply “fun.” It shouldn’t. Game theory studies games, many of which, the prisoners’ dilemma, the battle of the sexes, and the game of chicken, can, and often are, played in settings that are unfun, even deadly. So it is here. I’m talking about a deadly game with deadly consequences. Let’s stop letting those who are wedded to their particular reading of the second amendment, whatever the costs, define the rules of that game. Enough is enough.

Special note to readers: I have posted less frequently than usual because I’m under a tight book publication deadline. I promise it not for lack of interest, as I hope this shows, in the goings on in the world. Please remember those harmed in Puerto Rico or otherwise victimized by the hurricanes.

Your comments are welcome.

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