Laurence Tribe, the Harvard professor who a decade earlier had endorsed an individual rights interpretation, testified that the assault weapons bill did not come near being unconstitutional. “The central message of Heller and its lower-court progeny is thus to take the application of the Second Amendment seriously but also cautiously,” he said in a written statement before Congress. After all, guns that were “dangerous and unusual” could be regulated or prohibited. And it should not be necessary to fire so many bullets to protect a home from a burglar. Robert Levy, the Cato Institute chair who funded and led the winning litigation team in Heller, agreed. He told The Washington Post he assumed assault weapons and high-capacity magazines could be banned.
Constitutional arguments flew fast. In one respect, debates in 2013 differed from those that came before. The NRA long had argued that gun measures were the first step toward a program of confiscation. It still did so, blaring to its members that the Obama administration was “closing in fast on your Right to Keep and Bear Arms.”
But the justices now had spoken. When the Supreme Court declares something a constitutional right, it rocks not only the legal world. It enshrines an idea with legitimacy. It booms a political talking point with an august baritone, becomes a simple talking point for “low information” voters and legislators. In this way, Heller was a huge boon to gun rights forces. If it is unchallenged, its legitimacy will only grow with time.
And yet, it also put a trigger lock on the greatest threat feared by gun rights supporters. Does a power-mad government want to take everyone’s guns away? It couldn’t even if it wanted to. Heller would stop the “gun grabbers.”
Joe Scarborough, the Florida Republican congressman turned MSNBC cable TV host, supported an assault weapons ban. He found that Heller made his arguments easier. Scarborough repeatedly insisted, as he did one morning, “Justice Scalia, the strongest supporter of the Second Amendment on the Supreme Court, said this amendment does not apply to assault weapons. No way! There is no constitutional issue here.” Democratic politicians embraced the Second Amendment with gusto. Vice President Biden could say, “The first foundational principle is: there is a Second Amendment. The President and I support the second amendment. And it comes with the right of law abiding, responsible citizens to own guns—to use it for their protection as well as for recreation.”
Some surmise that, in the long run, Heller and McDonald will make it easier for gun control advocates, by drawing a sharp line over which they cannot cross. This would hardly be the first time an adverse but limited Supreme Court ruling has helped the losing side. In recent years when justices have issued a ruling to curb affirmative action, the steam escaped from efforts to repeal it altogether. So far, though, evidence is slim that such a political benefit has accrued. Perhaps Barack Obama was able to win North Carolina (in 2008) and Virginia (both times he ran) because gun issues were less salient than a decade earlier. But the intense animosity of the NRA and its leadership, surely, seems unabated, regardless of politicians’ catechism-like invocation of “belief” in the Second Amendment.
So perhaps Heller will leave a mark fainter than some hoped and others feared. Yet the injection of constitutional fundamentalism into gun policy comes at precisely the moment when it might do the most harm in the long run.
NINE
Flying Blind
The Supreme Court now has enshrined a right. But it did so at an odd moment: a time when there are reasons to think the push for gun rights might otherwise lose some of its potency. It entrenched a particular worldview, when the tides of politics and demographics might move away from it.
Begin with a basic fact: the number of guns in the United States has continued to climb. Firm numbers are unavailable, because unlike autos, guns are not registered. Today there are estimated to be as many as 270 million civilian firearms in the country. That is three times as many guns per person as Canada, and fifteen times as many as England.
But the ranks of gun owners have not swelled. In fact, they have dropped sharply. For four decades, the General Social Survey, a study regularly conducted by the National Opinion Research Center, has asked respondents whether they have a gun at home. Every decade, gun ownership rates have slid, from half of all households in the 1970s to 34 percent. Today only one in five Americans reported owning any guns at all. Gun ownership has shrunk in all regions, including the South and West, where firearms imbue the culture. Three of four city dwellers don’t have a gun. Nearly half of people who live in rural areas don’t, either.
In short, fewer people own more guns.
There is one more relevant trend. Gun violence is down. To be clear: murder and violence remain higher in America than in the rest of the industrialized world. A gun policy center at Johns Hopkins University concluded, “Although there is little difference in the overall crime rates between the United States and other high income countries, the homicide rate in the U.S. is seven times higher than the combined homicide rate of 22 other high-income countries.” Even so, the gun homicide rate dropped by nearly half from 1993 to 2010. “The victimization rate for other violent crimes with a firearm—assaults, robberies and sex crimes—was 75 percent lower in 2011 than in 1993,” according to a Pew Research Center study. The broad drop in violent crime across America is one of the most significant phenomena in recent decades. It is among the least understood. In the 1990s, experts issued dire warnings that a remorseless generation of “superpredator” teenagers would make cities unlivable. Today those cities are safer than they have been in decades. Confusing things further, crime rates are dropping all over the Western world. Criminologists and sociologists have studied, and debated, the causes of these unexpected improvements. A recent blue-ribbon panel concluded more data was needed. Such studies are inconclusive as to whether most gun control laws have a major impact.
The NRA, of course, has a theory: it heavily promoted the idea that an armed population is the reason crime is dropping. In 1998 economist John Lott published More Guns, Less Crime. The book became the best-selling title ever published by the University of Chicago Press. Lott looked at states that had liberalized “concealed carry” laws, and saw crime rates ease. The book’s thesis proved wildly controversial, at best. When other researchers delved into Lott’s findings, they found no credible evidence that the passage of right-to-carry laws decreases or increases violent crime. Lott furiously defended his research. One former student spoke up on his behalf. “I have to say that he was the best professor I ever had,” effused Mary Rosh on the Internet. She enthusiastically posted on her mentor’s defense on Amazon.com, as well. She turned out to be a “sock puppet”—“Mary Rosh” evidently was “John Lott.” Lott left the American Enterprise Institute, and no longer teaches at a university. He now is best known as a Fox News columnist.
This new era of gun rights will intersect with the real world of gun violence and public health in several ways.
Now that judges must weigh new and existing gun laws against the Second Amendment, law enforcement officials will face a new hurdle. Advocates of measures to curb gun violence now must prove the efficacy of their policies to a judge, to survive even intermediate scrutiny. The dearth of scholarly data will pose obstacles. In 1996, Representative Jay Dickey, Republican of Arkansas—who later described himself as the NRA’s “point person in Congress”—won passage of a provision effectively eliminating funding from the Centers for Disease Control’s budget for the study of gun violence. Research funding in and out of government simply dried up. According to The New York Times, “The centers also ask researchers it finances to give it a heads-up anytime they are publishing studies that have anything to do with firearms. The agency, in turn, relays this information to the NRA as a courtesy.” In 2011, Congress extended that ban to the National Institutes of Health as well. Peer-reviewed, valid scientific evidence is in short supply, at the very moment courts will be requiring it. Taking executive action in 2013, the Obama administration ordered the CDC to go ahead and con
duct research. Results will take time.
Historians will need to get busy, too. To the extent that historical analogies will need to be drawn to obscure gun policies of the early republic, pro-regulation advocates are about two decades behind. They have just begun to catalogue early American gun laws, a vital step to show that “tradition” allowed reasonable regulation. This is, putting it mildly, a bizarre quest for policymakers in the twenty-first century, but it’s the formal, near-religious test hinted at in its oracular way by the Court.
More promising, some of the most effective current measures to curb gun violence seem the most impervious to constitutional challenge. Law enforcement still can keep guns from the hands of dangerous people, as Heller made clear. These prohibitions could be strengthened. For example, many states do not bar from gun ownership individuals with misdemeanor convictions or who were convicted of felonies in juvenile court. Yet these individuals are significantly more likely to use guns in violent crime later.
Many of the most effective steps to curb gun violence fall outside the traditional purview of gun control legislation altogether. NYU Law professor James Jacobs, skeptical about the impact of laws like the Brady Bill, concludes that the demonstrated impact on firearms violence comes from a regime of strong punishment for any crime involving a gun. Police departments assert that enforcement has played a significant role in the decline of gun use in major cities. It is not gun laws, but policing that has changed. Even there, controversy swirls around policy and efficacy. Policing practices shifted markedly since the early 1990s. Beginning in New York City and Boston, “community policing” flooded the streets, and pulled police out of their cars for direct interaction with citizens in high-crime neighborhoods. In Boston, police targeted gangs to make clear that gun use would not be tolerated. New York sharply increased the number of officers on patrol. They focused on crime “hot spots,” a policy that soon morphed into the controversial “stop and frisk” tactic. But it is far from clear that the way police search for guns has actually brought down gun crime. Evidence suggests that the sheer number of police in a crime-ridden neighborhood does more to push back against firearms violence than do adjustments in policing practices. All these efforts, of course, are subject to constitutional limitations other than the Second Amendment—most notably, the Fourth Amendment and its prohibition against unreasonable search and seizure.
Still, we are early in the post-Heller era. Already, Second Amendment fundamentalism has grown so intense it may crimp strategies that do work. In the 1990s, the NRA and the Bureau of Alcohol, Tobacco and Firearms lauded “Project Exile” in Virginia. This sought to arrest and prosecute any felon caught with a firearm. Again, studies differ on how successful it really was—but the NRA touted it as the way to “enforce existing laws” rather than pass new ones. If the Louisiana model of “strict scrutiny” spreads, police will find it far harder to target gun possession.
It is the very focus on history, the very need to look backward at colonial practices, that suggests a genuine hurt from Heller. The gun control debate is stymied. Obama’s most visible reform proposals, after all, differed little from measures debated and passed in Bill Clinton’s first term in the early 1990s. Technology and local experimentation could leap past the sterile arguments. But Adam Samaha, Jens Ludwig, and Philip Cook—three academic experts—worry that “the possibility of constitutional litigation certainly can deter novel government responses to old or new social problems—and passages in Heller seem designed to have this dampening effect.” They point to “technological and regulatory innovations, including microstamping shell casings for the purpose of tracing crime guns, reviewing the design of new guns before they hit the market, and requiring personalized gun technology that attempts to restrict usage to owners only.” Local governments will know that costly constitutional litigation will now ensue should they try to put in place cutting-edge reforms.
Consider ballistic microstamping. California governor Arnold Schwarzenegger signed an innovative law requiring semiautomatic pistols to stamp a serial number on each bullet as it leaves the chamber. A public-spirited NRA member had invented the technology; he wanted his patent to expire so he could give it to the state. It took five years, due to legal disputes, but California finally implemented it in 2013. The NRA fought the proposal. Litigation challenges are likely.
Other possible methods to control gun violence could be frozen, too. Certain kinds of guns could be highly taxed, to pay for the unusual amount of damage they do. (That is how the 1934 law treated some weapons.) Gun manufacturers, or gun owners, could be required to purchase insurance to pay for health and property claims due to improper use of a given firearm. Thumbprint recognition could be a foolproof form of trigger lock to prevent children from accidentally shooting a playmate. We do not know if future courts will regard any or all of these as an impermissible restriction on a sacred right. But the very worry about litigation could well deter local governments from embarking on policy innovation. Criminal justice policy is rarely ever solely about what works. Gun control, as much as gun rights, can become a matter of faith, or competing fear. But to the extent possible, society gains when it is able to weigh costs, benefits, and competing claims for safety policy. That has just become much harder. And judges will be asked to do much more of the weighing.
IN THE CULTURE WARS, ONE SIDE IS ARMED
One can hope that commonsense gun regulation could evolve further. Heller and McDonald could ultimately point toward a world of limited gun rights subject to regulation, an accurate description, after all, of most of America’s history. But Second Amendment fundamentalism challenges that sunny view. Increasingly, it is clear that the gun issue is not one of evidence-based public safety policy, but of culture. The rediscovery and glorification of the Second Amendment reflects that divide—but will likely only make it worse.
The desire to buy a gun for protection has raw emotional elements, and it certainly may reflect aspects of racial panic (especially when gun sales spike after the country elects an African American president). Surveys show most Americans do not believe gun violence is down—which may spur more desire for gun control among some, and to buy guns among others. On the other hand, the lived experience of people in the places where violence was most pervasive, America’s cities, suggests that people there understand crime has dropped.
In parts of America, for much of its history, having a gun was a deeply rooted cultural tradition, part of what it meant to be a man. The custom of giving an adolescent boy his “first gun” has been called “the bar mitzvah of the rural WASP.” We speak of America’s “gun culture.” But that culture is changing. Hunting is in decline, in part because suburban development has reduced the land available for it. Fewer people proclaim their need for a gun to protect themselves from crime, as well.
And there is another reason that the gun culture is shrinking, one central to the story of the Second Amendment. A well regulated militia once included all adult white men. At several other times in our history, mass mobilizations pulled millions of Americans into the military. The colonial militias were cited as precedent for the first federal draft, during World War I. Franklin Roosevelt said he was calling up a “muster” when he instituted the first peacetime draft in the uneasy days before Pearl Harbor. In 1970, the peak of the Vietnam War, over three million Americans were on active military duty. The volunteer army was introduced in 1971. Since then, the volunteer army has shrunk, grown more professional, and more lethal. Morale and training are far higher. But fewer Americans take part. The tradition of military service behind the Second Amendment—which helped create the gun culture in the post–World War II years—has faded. Relatively few of the men who wear camouflage and accessorize their assault weapons have ever served a minute in the military or heard a shot fired in anger. A clue to the cultural basis of current gun politics comes from the nature of the guns themselves. The fastest-growing gun, in terms of popularity, is precisely the AR-15—the semiautomatic rif
le, designed to look like a warrior’s weapon. Boys with toys.
Increasingly cultural dimensions cut deeper than a mere divide between urban and rural Americans. That we have had since the beginning. (Indeed, since the debate over the ratification of the Constitution that pitted backwoods Pennsylvanians against Quaker Philadelphians.) If it seems as though gun rights adherents and gun control backers occupy different mental universes, seeing the same facts in entirely different ways, that largely is true. The Pew Research Center presents some startling statistics: “The general profile of gun owners in America differs substantially from the general public. Roughly three-quarters (74 percent) of gun owners are men, and 82 percent are white. Taken together, 61 percent of adults who own guns are white men. Nationwide, white men make up only 32 percent of the adult U.S. population.” Gun owners are nearly twice as likely to identify as Republicans as non–gun owners. For years, gun owners have been far more intense in their advocacy than broad majorities who support restrictions. That has been true for generations. Now, though, Americans have “sorted” themselves into increasingly distinct, isolated, bristling partisan camps.
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