I Don’t Think That Word Means What You Think It Means

As the country struggles to deal with mass shootings and street violence, and as the government, at the state and federal level, struggles to enact reasonable gun safety measures in the aftermath of the Sandy Hook Elementary School massacre last month, pro-firearm lobbyists and special interest groups – and the politicians they own – are pushing back. That’s to be expected. There are no simple solutions to complex problems like gun violence, and we’re not all going to agree on what measures government should or shouldn’t take to deal with those problems.

That’s democracy.

It should go without saying, however, that people who engage in major social debates like the one we’re currently having about gun violence and what constitutes reasonable gun safety laws should do so honestly, in good faith, without obscuring the factual and legal issues involved. It should go without saying, but apparently it needs to be said. Over and over again.

Look, I understand that pro-gun folks don’t like government restrictions on their access to firearms. Some people believe that greater access to firearms actually promotes public safety – an armed society is a polite society and all that – and some people believe that government regulations don’t reduce violence anyway, so why take firearms away from law-abiding citizens who just want to protect themselves. And, as is often the case, the facts are difficult to interpret: In the years since the Supreme Court struck down handgun bans in Washington, D.C., and in Chicago, Washington’s murder rate declined to it’s lowest rate since 1963, while Chicago’s murder rate soared.

So people are going to have different opinions about what the government should do in response to firearms violence. What they shouldn’t do is make false and misleading arguments about what government can do in response to firearms violence.

The pro-firearms contingent seems to be doing a lot of that lately – arguing not so much that the government shouldn’t impose certain restrictions on access to firearms, but that the government can’t constitutionally do so. This seems to happen a lot when the subject of banning “assault weapons” – a less than precise term, of course; maybe “assault rifles” would be a better way to put it – arises. Here in Illinois, our General Assembly had to punt on the issue when the sponsor of an “assault weapons” ban realized that he didn’t have the votes to ensure passage during this week’s lame-duck session. WBEZ reports:

The assault weapons ban legislation was slated to appear Sunday afternoon in front of the House Judiciary Committee. But despite a room packed full of supporters and opponents of gun control legislation, the committee meeting lasted less than two minutes.  

“I don’t think there’s much to take away,” said Rep. Lou Lang, a Democrat who sits on the committee. “The sponsor wasn’t ready to call his bill. The amendment hadn’t been drafted and he wasn’t ready.”

But here’s the kicker:

When the brief meeting adjourned, several opponents of gun control stood and applauded.

“We will be back like a bad nightmare,” Nathan Moyer, an opponent of the assault weapons ban from Decatur, Ill., shouted to the room as soon as the meeting ended.

He predicted lawmakers will push gun control legislation again.

“Anytime tyranny is put together by the judicial system that is corrupt, the little man will stand,” Moyer said.

Now, I don’t know precisely what that gibberish means – “[a]nytime tyranny is put together by the judicial system that is corrupt” – but the implication seems to be that banning certain types of firearms, generically if imprecisely called “assault weapons,” would some how run afoul of the Constitution.

Newly minted Republican Senator Ted Cruz of Texas echoed this (ahem) legal “theory,” on Fox News this morning (via Think Progress):

Appearing on Fox News Sunday, Cruz said he would back efforts to strengthen the federal database used to determine whether a prospective buyer is eligible to buy firearms, but argued that any other reforms would violate the Second Amendment:

HOST: You are a fierce defender of Second Amendment rights…. is there any new gun control that you would accept?

CRUZ: The reason we are discussing this is because of the tragedy in Newtown. And every parent, my wife and I we have two girls aged four and two, every parent was horrified at what happened there. To see 20 children, six adults senselessly murdered it takes your breath away. But within minutes, we saw politicians run out and try to exploit and push their political agenda of gun control. I do not support their gun control agenda for two reasons. Number one, it is it unconstitutional.

(Emphasis in original.)

While Sen. Cruz may have been more articulate than Nathan Moyer, Illinois’ own anti-assault-weapons-ban freedom fighter, the Honorable Gentleman from Texas is equally full of it. No, Sen. Cruz, a carefully drafted ban on military-style firearms would not be unconstitutional, and the Supreme Court said as much when it first held that the Second Amendment creates a personal right to keep and bear certain types of weapons back in 2008.

Yes, of course, I’ve been beating this drum for awhile, but I’m going to continue to beat it until the message finally sinks in. Whether you agree or disagree with the Supreme Court on the matter, District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, ___ U.S. ___, 103 S. Ct. 3020 (2010), define the contours of the “right to keep and bear arms” under the Second Amendment, and both sides of the debate are bound by the Court’s interpretation of that right for the foreseeable future.

And Heller, in particular, makes it clear that not all firearms are protected under the Second Amendment. Recognizing a number of limitations on the right created by the Second Amendment, Heller states:

We also recognize another important limitation on the right to keep and carry arms. [United States v.] Miller [, 307 U.S. 174 (1939)] said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [Citations]

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.

Heller, slip op. at 54-56 (footnote omitted; emphasis supplied).

There you have it. The Supreme Court, led by conservative hero Justice Antonin Scalia, expressly acknowledged that even though the Second Amendment creates the right of individuals to keep and bear certain types of firearms, “weapons that are most useful in military service—M-16 rifles and the like—may be banned.”

By all means, people who disagree with the wisdom of banning assault rifles should make their case. That’s part of the democratic process. But stop saying that banning military-style weapons like M-16 rifles offends the constitution when the very cases you rely on say just the opposite.