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  • Max Stearns

Putting Constitutional Rights in Perspective

Introductory note:

Earlier today, as I was putting the finishing touches on this post, I learned that Donald Trump was holding a bipartisan meeting on gun control in the Cabinet Room. During the meeting, Trump expressed support for a variety of gun control measures: strengthening background checks; raising the age from 18 to 21 for purchasing AR15-style weapons; banning bump stocks (via executive order); imposing restrictions to gun access based on mental health (with some notable confusion on the meaning and implications of due process); and arming highly qualified teachers. Some of his proposals are wrongheaded, but even so, just maybe this meeting, which appeared to make Democratic attendees far happier than their Republican counterparts, signals possible progress. My original post remains important, although I have modified it somewhat based on this recent event.

The Post:

Constitutional rights are not moral rights. Those exercising such rights do, however, have a moral obligation to consider how their conduct risks promoting rights abuses by others, now or in the future. This is particularly true of the Second Amendment.

The original Constitution contained three express provisions protecting the institution of slavery. Southern Plantation owners embraced the right to own human beings, persons forced here against their will, in chains and on ships, from Africa. The Constitution further disallowed Congress to ban slavery for twenty years, although, in fact, doing so required the Civil War and Reconstruction. The point, of course, is not to equate the right to own slaves with the right to own guns, but the comparison does provide insight into the nature of constitutional rights.

The first United States Congress proposed a bill of rights as a compromise between the Federalists and Anti-Federalists. Alexander Hamilton, in the Federalist 84, disclaimed the need for a bill of rights, asserting that in a government of limited powers, specifying a list of rights risked implying powers that were not conveyed. The Anti-Federalists, by contrast, regarded an express listing as essential to the protection of individual liberties. The listed rights largely captured the means by which overreaching governments historically encroached upon their citizenry. The textual accommodation to Hamilton was captured in the Ninth Amendment (the listed rights are not exhaustive) and the Tenth Amendment (the powers not delegated to the federal government are reserved to the states, or to the people).

I once attended a lecture by Justice Antonin Scalia at the National War College. His entertaining speech derided liberals and conservatives, but mostly liberals, for rights creations he found unmoored. Scalia generally eschewed grandiose jurisprudential theories, including those concerning the bill of rights, that is, beyond recognizing their purpose in protecting against unbridled majoritarian abuses. So viewed the listing cohered: protecting speech, the press, faith, against peacetime troop quartering, against unreasonable searches and seizures, against compelled self-incrimination, access to jury trials, against cruel and unusual punishment, all safeguard against governmental abuses.

The Second Amendment fit this account well, better, in fact, than the accounts embraced by the NRA, linking guns to self-defense and hunting, and with virtually no permissible regulation of weapon type or age, or by Scalia in his landmark 2008 Supreme Court decision, District of Columbia v. Heller. Heller held, for the first time, and contrary to longstanding precedent, that the Second Amendment created an individual right. Scalia homed in on the operative clause: "the right of the people to keep and bear Arms, shall not be infringed," relegating the prefatory clause, "A well regulated Militia, being necessary to the security of a free State," to an afterthought. After construing the operative clause to confer an individual right to have weapons for non-militia purposes, including self-defense and hunting; after concluding that "the people" means individual persons; and after construing "Arms" to include today's commonly used weapons, regardless of technological change or the absence of any military connection, his reconciliation became a fait accompli. The drafters, Scalia maintained, articulated one, not all, justifications. Even so, Scalia recognized limits. Allowing access to unusually dangerous, or military grade, weapons was too risky. Scalia thus recast an amendment designed to check against central governmental encroachment to instead allow banning military weapons, but not to allow banning arms for self-defense, hunting, or the enjoyment of collecting. So much for original public meaning.

Today, Heller recognizes an individual Second Amendment right. And the original Constitution protected the right to own slaves. Once again, the point is not to equate these rights. The vast majority of lawful gun owners will never use them for nefarious purposes. And indeed, the vast majority of lawful gun owners would be horrified to imagine that their weaponry might ever be so used. Even so, the fact remains that those who acquire more and more guns, especially the most dangerous weapons, such as the AR15 or similar semi-automatic rifles, the purpose of which is to kill as many people as quickly as possible, contribute to the risk of violent gun crimes such as occurred in Parkland, Florida. Even lawful acquisitions enhance the risk that those guns will eventually be deployed sometime in the future in a horrible crime. This risk arises simply from adding to the vast, growing cache of weaponry, by some estimates about 330 to 360 million arms. Inevitably, some of this weaponry will fall into the wrong hands, ending in tragedy. In addition, the perpetual resistance to even the most reasonable gun regulations have allowed others, persons who might be less responsible, to gain access to guns. Guns in the wrong hands, like slavery, deny dignity, take lives against the victims' will, turn power into privilege, and are ruthlessly brutal. Guns, however, are indiscriminate, taking lives without regard to race, gender, sexuality, religion, nationality, or, as such school shootings as Sandy Hook Elementary School, Stoneman Douglas High School, and elsewhere have shown, even the victims' age.

The Thirteenth Amendment was designed to eradicate slavery root and branch, with no compensation given to slave owners. The Second Amendment is obviously different. If particular guns are banned that were once lawful, the owners should be paid. Similarly, if present owners are willing to participate in buy backs, they too should be paid. Our society as a whole has allowed these dangers to arise, and we all should share the cost of reducing those dangers. But it is important to emphasize that the right to own guns doesn't make acquiring more and more guns right. That's not how constitutional rights work. Slavery was once protected, but it was as repugnant before, as after, the Thirteenth Amendment. Constitutional rights are not moral claims to rightness.

The vast majority of gun owners present themselves as responsible, undertaking careful training, ensuring that their guns and ammunition are secure and locked, and teaching their children to understand the all-too-real dangers that the weaponry they possess pose. But the sad truth is that this sort of personal responsibility is inadequate. Those who continuously acquire more and more weaponry, and those who push back against the most reasonable regulations, such as background checks and age limits, especially for the most dangerous weapons, are enhancing the conditions under which persons who are less responsible may also gain access to guns, and under which someone, somewhere, and sometime in the future will also gain access with the hope of using one or more of our nation's ever-growing cache of guns to commit a heinous crime. Although the proposals for reform discussed in today's meeting might help, the simple fact remains that reducing the risk of gun crimes, including school shootings, demands reducing the ever-growing gun stockpile, especially the most dangerous of weapons, such as the AR15 and similar rifles.

It is time to stop characterizing mass shootings simply as a mental health problem. It is also time to stop imagining that identifying specific law enforcement errors is the key to preventing future gun crimes. Of course, identifying these errors is vitally important to surviving victims and families of non-survivors, but fixing such mistakes will not resolve the systematic problem of gun crime. No matter how careful we expect law enforcement, social service workers, teachers, or anyone else to be, mistakes are a part of life. They are inevitable.

As I tell my students, torts arise when two bad events coincide, a person is in the wrong place just as something terrible, usually the product of negligence, is about to happen. With gun crimes the problem is far worse. Perpetrators deliberately seek to circumvent laws or protections that are designed to curb their worst and most dangerous behaviors. However vigilant law enforcement might be, reducing the risk that guns fall into the wrong hands also demands reducing the stock of available guns. This includes closing gun show loopholes and internet sales loopholes, raising the permissible age of acquisition, improving and lengthening background checks, and, yes, declaring those weapons whose only rightful purpose is military use illegal for private possession. Only by seriously reducing the available gun stock can we also reduce the likelihood that when human errors inevitably occur, the price paid is not an avoidable tragedy resulting from all-too-easy access to the ever-growing stock of available weaponry.

System redundancy is essential in virtually all complex human endeavors, and gun crime is no different. Imagining that we can identify in advance those persons whose mental illness might render them prone to horrific danger as a solution to gun crime is dangerous and misleading. So too is the notion that we can solve this by arming teachers. For that to be effective, those teachers would need the wherewithal to calmly accomplish, under the greatest imaginable pressure, a set of tasks that we otherwise rely upon only the most skilled law enforcement and military experts to perform. And finally, the notion that guns in schools will deter is deeply problematic. Unless every single school, and indeed every part of every school, is amply armed (which, make no mistake, would be a boon to the NRA as it would dramatically increase the sales of guns), the result will not be a diminution in gun crime. Instead, it will be a diversion from shootings in gun-present to gun-free schools. Just as an isolated house with an alarm system sends a would-be robber to a neighboring house, so too arming some schools, or parts of schools, will at best divert those seeking to commit such violent crimes to less protected areas.

To be sure, this policy area is enormously complex, and although I think several aspects of Trump's new gun initiatives wrongheaded, it is nonetheless comforting to imagine that he's truly pushing an agenda forward, and even pushing against the NRA. Trump is not known for consistency, and it remains important to be vigilant. Let me be clear: unlike guns, which continue to have legitimate purposes related to self-defense, hunting, and even sportsmanship, there was never a credible moral claim to ownership of another person. Even so, the comparison emphasizes an important point: An individual right-assuming that's what the Second Amendment creates-is not a moral one. Heller was not Scalia's best work. Despite that, even Heller acknowledges legislative power to curtail access to the most dangerous weaponry. Although it is too late for the Florida victims, it is some comfort to know that our representatives might finally be getting to work.

As always, I welcome reader comments. I do, however, reserve the right to remove, or otherwise address, comments that I deem inappropriate.

This post is lovingly dedicated to:

Alyssa Alhadeff, 14

Scott Beigel, 35

Martin Duque Anguiano, 14

Nicholas Dworet, 17

Aaron Feis, 37

Jaime Guttenberg, 14

Chris Hixon, 49

Luke Hoyer, 15

Cara Loughran, 14

Gina Montalto, 14

Joaquin Oliver, 17

Alaina Petty, 14

Meadow Pollack, 18

Helena Ramsay, 17

Alex Schachter, 14

Carmen Schentrup, 16

Peter Wang, 15

You may read more about the Stoneman Douglas shooting victims here. May there memories forever be a blessing.

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