Thursday, April 4, 2013

Paranoia and the Second Amendment

Paranoia and the Second Amendment
         One role of Supreme Court decisions is to reify the Constitution, i.e., to provide reassurance that constitutional protections are real.  As a society, we look to the Constitution and point to its guarantees as the premise of our nation's strength and uniqueness.  Somehow, however, both major gun rights decisions by the Supreme Court--Heller, the D.C. gun case (Second Amendment is a personal right limiting the federal government), and McDonald, the Chicago gun case (Second Amendment limits the States as well)--apparently failed to provide reassurance.  Devotees of the Second Amendment (in contrast to students and scholars) mine a deep vein of paranoia that no constitutional reassurance can assuage.
         While Justice Scalia's Heller opinion endorsed not only an individual rights theory of the Second Amendment (indeed no Justice spoke up for the collective rights view of the Second Amendment which had substantial previous scholarly support), but also an historical view of the Second Amendment as embracing an underlying distrust of government, i.e., that guns, individually owned guns, were a guarantee of a means to assail government should it threaten citizens' liberties, that was apparently not reassuring enough.  Of course that Second Amendment history piece is the source of the paranoia.  To those for whom government is a threat or THE THREAT, it is easy to see any and all government regulation as a pretext, a next step toward confiscating guns and leaving citizens unable to respond to THE THREAT.
         This paranoia is apparent in the divide over gun regulation.  Justice Scalia's Heller opinion sensibly made clear that the Second Amendment did not preclude all gun regulation.  He specifically noted the constitutional acceptability of "longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms" and "prohibiting the carrying of 'dangerous and unusual weapons."  The McDonald court echoed these as well.  Nevertheless gun regulation per se is out, apparently a political impossibility in today's climate.  Regulating magazine capacity and assault weaponry are politically DOA.  Even background checks are off the table for the paranoid because their recordkeeping aspects could lead to a list that could/would inevitably lead to confiscation.  Alternatively, the NRA endorses a "gun answers gun" model to address gun threats in schools (or more accurately, generally).  Concealed carry, open carry, guns in schools, churches, bars and courthouses becomes the answer because the fear of gun violence--suicides, accidental shootings from loaded firearms found by children, firearm injuries from gun handling by the inexperienced, etc.--is trumped by a more deeply felt paranoia that regulations will lead to gun confiscation by a totalitarian perversion of our own government.
         Some argue that the focus should come off regulating guns in favor of regulating the mentally ill who shouldn't have access to guns.  I wouldn't look for more support for mental health programs any time soon.  Proposals like this underestimate the extent of the paranoia.  For example, as the NY Times reported (April 4, 2013) the lobbying group Gun Owners of America opposed a 2007 bill limiting gun access to members of the military with post-traumatic stress disorder that was acceptable at least at the time even to the NRA.  After all, who knows whom the government will define as "mentally ill"?  Could it include in the definition "paranoid defenders of a particularly bizarre and legally unfounded view of the Second Amendment"? 
         Until the anti-government paranoia passes, don't expect any common sense regulation of guns.