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.
