Jake (oslo) wrote in talk_politics,

Agnostic gun control

On several occasions in this community, I have needled gun-rights advocates and their proposals for cracking down on gun violence in the U.S. I have often asked them, "What is your evidence that these measures will work?" These questions often elicit the response: "Where is the evidence in favor of gun control," to which I can only respond, "I'm not entirely sure of that, either." So I thought I would try to plot out what I think we can or ought to do, in an environment where the best policy course isn't obvious.

First, I'd start by identifying those points on which I think both sides are agreed: (1) there should be less gun violence than there is; (2) we ought to do something to crack down on the level of gun violence that there is; and (3) we ought to do so in a way that minimizes infringement upon the "right to bear arms" enshrined in the Constitution. (1), I think, is self-evident, gun violence being an obvious ill. Are both sides agreed on (2)? While I think that gun-rights advocates might object that recent news-making events - mass-shootings - are to an extent inevitable and so not necessarily calls for alarm in themselves, gun-rights advocates have also pointed (correctly) to surges of gun violence in places such as the South Side of Chicago as examples of where we ought to be focusing our attention. Similarly, gun-rights advocates may object to (3) on the basis that no infringement upon the "right to bear arms" can be permitted; but to this I'll say just that I understand "minimize" to encompass the "null set," so to speak. That is, "no infringement" is always better than "some infringement" - I think that is something both sides can agree on.

The problem, simply put, is that, while we are motivated by (2), we don't know (a) how best to accomplish (1) and (b) how to balance an interest in accomplishing (1) while holding to (3).

Here is what I would propose:

[Solutions should be locally-developed and implemented.]Solutions should be locally-developed and implemented. Obama's Big-Deal approach to every problem he decides to focus on is not helpful for a phenomenon (gun violence) that takes different forms for different reasons in different contexts. What's needed and what works for Chicago's South Side may not do much for Newtown or Aurora. Moreover, a national approach promises lowest-common-denominator, politically-palatable solutions that are not necessarily (maybe certainly not) responsive to local needs.

That's not to say that the federal government should have no role. The federal government can help local communities to research and compare alternatives and to learn from one another's experiences and to coordinate more generally. But an agenda set in DC is not, in my view, an agenda to address the problem in a realistic way.

[Solutions should be less gun- and ammunition-focused and less focused on prohibition.]Solutions should be less gun- and ammunition-focused and less focused on prohibition. While it is natural and intuitive to focus on gun possession and sale after a Newtown-like attack, the broader problem of gun violence is one that seems to have multiple contributing factors. Gun rights advocates have been prominently calling for better health care screening, for example, with respect to mass shootings; broader social reform and economic development is more likely to be helpful on the South Side. I won't deny that the general availability of guns and ammunition could be a contributing factor, as well, but the approach needs to be commensurate with the complex reality of the phenomenon.

Similarly, most of the proposed gun control measures to date are essentially prohibitory in goal or effect. They ban specific types of weapons and ammunition; they limit the ability of certain individuals to obtain weapons at all; they close "loopholes" that permit freer movement of guns in communities. Less discussed, for some reason, is the possibility of simply buying guns and ammunition from the community. If the number of guns in a community is contributing to its gun violence, one simple way to do something about that number while avoiding any infringement upon the right of any person to "bear arms" is simply to offer to buy unwanted weapons and ammunition outright.

[Solutions should not be evaluated based on whether they would have prevented the most recent tragedy.]Solutions should not be evaluated based on whether they would have prevented the most recent tragedy. The point may be self-evident. Addressing gun violence in our communities presents us with a challenging paradox. Solutions become politically achievable most often after news-making gun violence; but the solutions that are needed are not always the same as the solutions inspired by the news-making gun violence; so the politically achievable solutions are often the ones we don't need. It's hard to imagine, for instance, how New York's new gun law would do much for the South Side, were it implemented here (to say nothing of whether it would do much to prevent future Newtowns or Auroras, for that matter).

[We should not "Constitutionalize" the problem.]We should not "Constitutionalize" the problem. This point may turn out to be the most contentious. The Constitution provides for a "right to bear arms" that, under Supreme Court jurisprudence, sets certain legal constraints around any solution we might propose. This makes it difficult for us to experiment with certain types of gun control, which makes it difficult for us even to know what types of gun control might be the most effective, which in turn makes it difficult for us to guess whether a constitutional amendment might be necessary in order to achieve truly effective gun control.

The guns rights advocate might argue that this is the point of constitutional protection - to protect certain rights from being sacrificed in the name of political expediency. So put, I would not disagree. But the constitutional design does more than this, when it is construed to prevent us from even knowing whether it needs to be amended.

More fundamentally, we should not confuse the function of the constitutional "floor" holding up our individual rights with the way we democratically deliberate the very nature of that floor. The Constitution tells us, in other words, that there is a basic "right to bear arms," but it does not tell us what that basic right amounts to, or what it means to protect it consistent with the constitutional promise. That, it leaves primarily to us, to work out through our democratic processes.

[What could this mean?]I would draw a comparison to the Supreme Court's now-infamous test for "obscenity," a category of speech it has deemed beyond the First Amendment's protections, which it first articulated in Miller v. California. The test includes both factors that are based on community standards and factors that are in a sense "objective," arguably enshrined in the Constitution. It acknowledged, in other words, that there was a Constitutional floor upholding our rights to engage in putatively "obscene" speech; but it left communities and states with the task of working out the nature of that floor, on a community-by-community basis.

That test has been widely criticized as too subjective, unwieldy, and prone to "abuse"; but to a certain extent its reputation derives from its being a locality-respecting rule that's been subsumed by a nationalizing jurisprudence. "I know it when I see it" seems like a ridiculous rule when you believe the Constitution imposes a single, timeless, and uniform standard on the entire country. But it's much easier to understand once we dispense with this legal fiction and acknowledge that even the immaculately objective test must be interpreted and applied by a judge, sitting in a community, appointed by a democratically-elected representative (or themselves elected).

The interests that the Second Amendment serves - whether we understand the interest to be in a "well-regulated militia" in general or in the individual rights of those "militia"-members to bear arms for legal use - either have less salience or can be better balanced at the local level. What makes sense as a limitation on federal power may make less sense for a community whose members know, work, and live with one another and are just seeking to solve their own problems amongst themselves. As such, a locality-respecting legal rule makes sense for many of the same reasons that a locality-respecting policy does; it leaves less for a privileged few in DC to muck up for the rest of us.

All that said - I hope that my first points would help to assuage any fear that I've entirely lost sight of (3), above. While I am discouraged by the Supreme Court's agenda-setting on the national level, and I believe it really does prevent us from discovering what truly does (or does not) work, what I advocate on the local level are not policies that are likely to conflict with the Supreme Court's agendas but policies that are largely (if not fully) consistent with it.

Given shared goals and motivations by both sides of the gun-control debate, I believe that we can and should have an intelligent discussion about reducing gun violence in this country - and I am happy to concede that we are not really having it yet. A large part of the reason it is not yet occurring, in my view, is that we insist on doing it on a national level, far removed from the local conditions in which gun violence actually occurs. I think this is counterproductive, to such an extent that perhaps the best thing that Obama, et al., can do to help the process is to shut their own yaps about it.
Tags: constitution, gun laws
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