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Please Stop Debating Gun Control and Read This First


Listening to “the gun control debate” is like watching a tennis match in which the players are on two different courts, hitting balls over the net, and running away without even looking to see if their serves are returned. It’s pointless and lazy and will get us nowhere – at a time when we as a country could really use some direction. Judging from the media circus that has resulted from the Parkland school shooting, it seems like a lot of people could use a primer in how the Second Amendment works.

The Second Amendment: What it is, and what it isn’t:

Get it straight, people. The Bill of Rights is not a list of things American citizens get to do. It is a list of restrictions for the federal and state governments. It lays out a bunch of items that are sacred ground — things that no government can completely take away. It’s actually a pretty long list, including the right to free speech and assembly, the freedom to exercise one’s religion, the right to a jury trial, and the protection against unreasonable searches and seizures. And yes, one of those items is “the right of the people to keep and bear arms.”

Notice, though, that the rule is that those rights cannot be taken away. No one said anything about the government not being allowed to regulate things. And don’t even come at me with the “one person’s ‘regulation’ is another person’s ‘taking’” argument. “Regulating” is what your parents did when they told you when, how, and with whom you were allowed to socialize. That wasn’t the same thing as taking away your right to socialize altogether, and we all know it. So stop.

For purposes of this gun thing, I’m not going to explain the history of federalism; let’s just say that for the most part, states are free to govern as they see fit, subject to the limitations set out in the Bill of Rights. Over time, the no-fly zones laid out in the Bill of Rights have been clarified – and in some cases, expanded beyond their plain words; for example, we have clarified that there is zero First Amendment problem with the idea of a law prohibiting defamation, obscenity, or dangerous speech. Back in 1965, we (and by “we”, I mean “the Supreme Court”) also decided that although the First Amendment doesn’t specifically include the word, it also protects an individual’s right to privacy; some topics (such as, for example, certain parenting choices, or sexual relations between consenting adults — and to a more limited degree, the choice to terminate a pregnancy) have been deemed so personal that the states must follow some very strict guidelines when legislating about those topics.

So that means that we’re not allowed to have any laws about bearing arms?

Nope. It just means that we’re strict about which laws we adopt. The Supreme Court has come up with a nifty little system of determining whether a law goes too far. Any time a law potentially impinges a fundamental right (aka the rights listed in the Amendments), that law must be necessary to achieve a compelling government interest. If the law’s purpose isn’t important enough, it gets nixxed. If it’s not tailored closely enough to realistically achieve that purpose, same result. If the law is both well-motivated and well-drafted, it gets to stand.

Is “bearing arms” the same thing as “owning a gun”?

Sorta. When it’s convenient, many people discuss the two as if they are synonymous. In actuality, they’re not identical twins; they’re more like first cousins. We had a Supreme Court case in 2008 that specifically said that the Second Amendment protects an individual’s right to have a handgun for home self-defense. There are plenty of other things that the Heller case did not decide (other firearms, or other uses of those firearms, for example).

Where conservatives go wrong:

They’re out there hollering about a right they don’t actually have. Gun enthusiasts are out there screaming that all gun regulations are illegal, because liberals are “trying to take guns away” – a lament that misses the point in a spectacular way. The government is already allowed to take guns away —sometimes. The fact that Charlton Heston thought he had an unfettered right to possess firearms doesn’t actually make it so.   All of our rights can be curtailed sometimes, especially when one person’s exercise of a right puts another person at risk.

And conservative talking points about being “pro-Second Amendment” are stupid to the point of lunacy. The Constitution was drafted more than 200 years ago; the time to debate the Second Amendment was back when Hamilton was a person and not a play. Now, it’s part of the Constitution, and there’s nothing to be “pro” or “anti” about, unless we’re going to start the process of amending the Bill of Rights. You’d never hear a Senator start a speech by declaring himself “pro-voting” or “pro-due process,” so this nonsense needs to end. If a person wants to be “pro-Second Amendment,” he or she should start by learning how it actually works.

Where liberals go wrong:

They’re claiming the moral high ground when it’s neither accurate nor relevant. Frankly, liberal vilification of conservatives for “not caring” about school shootings would be silly if it wasn’t so flatly offensive. Most gun advocates aren’t monsters who celebrate the deaths of school children; some are Americans who honestly (though incorrectly) believe that they were promised absolute freedom to buy and own weapons in whatever manner they choose. Others are believers in limited government who hold narrow views about the kind of regulations that can legally restrict individual liberties. It’s hard to blame anyone for muddling these arguments, though, when most of the liberal rhetoric out there focuses on the why of gun-control and not the how.

Gun regulations are not legal because mass shootings are awful; they are legal because neither the Constitution nor anything else prohibits such laws. Liberals should also take a break from making the car/gun analogy. Sure, I can see how it seems inane that a person can buy a gun easier than they can get a driver’s license, but driving a car is not a right protected in the Bill of Rights. In fact, it’s not a right at all – it’s a privilege. Same goes for adopting kittens at a local shelter – not a right, therefore, not a good analogy.

So which gun laws should be passed?

Ones that work. As with many things, attitudes about guns tend to vary regionally; that’s’ why gun laws are primarily matters of state (as opposed to federal) concern. The rules are as follows: when the government regulates a “fundamental right,” it must tread lightly. In legal terms, the law passed must be “necessary to achieve a compelling state interest.” Assuming that the “compelling interest” here is keeping as many Americans alive as possible, the task is clear: make laws that are reasonably calculated to actually help keep people alive. The federal government can certainly set out some good guidelines, create some minimum standards, and provide good information and good funding to make it all work.

Don’t we need a bigger change to our gun laws?

Maybe, but it would be far more efficient to pass gun laws that fit within our currently-existing legal structure before making systemic changes. The smart move would be to do that first, and then consider broader legal changes later.

What if we wanted to make broader changes?

It certainly could happen, but it wouldn’t be easy. Plenty of Americans believe that the right to bear arms should no longer be considered a “fundamental right” thereby entitled to our strongest level of protection. In most crowds, even those that are right-leaning, when playing “which of these things is not like the other” with the right to vote, the right against cruel and unusual punishment, the right to free speech, and the right to a speedy trial, the right to bear arms wouldn’t quite fit in.

Given the changing times, perhaps it’s time that we take the right to bear arms off the VIP list of rights. In the past, we’ve seen major ideological shifts result in seismic changes to our legal system of rights, and for the most part, history has looked favorably on those changes. But most of those changes have resulted in expansion of rights, not restriction. We’ve haven’t often gone backward. So deciding, as a nation, that we no longer value the right to bear arms on the same level, as say, the right to vote, would be a pretty big deal.

There have been instances when we have come together as a nation and adjusted the definition of a fundamental right such that it more closely matches our collective value system. That’s what happened, at least to some degree, after slavery was abolished. That’s what happened again during the Civil Rights Movement. It’s also what happened during prohibition and then again when prohibition ended. Plenty of people would look consider the appalling reality of recent violence in our country enough motivation to make a massive change to our structure of legal rights. However, many others would disagree, and the kind of consensus required to amend the Constitution is not remotely probable, especially in the current climate in which no one seems to feel comfortable admitting what the law actually allows.

Where does that leave us?

In the interest of making us a better, safer, and smarter America, let’s cut the crap. Let’s all acknowledge that both federal and state governments can make laws that regulate the purchase, ownership, and use of guns, because no right is absolute. Let’s agree that the reason why those governments should make such laws is that the entire point of legislating at all is to protect our general health and welfare. Now let’s debate what actually warrants debating – the kind of laws that would simultaneously effect safety while respecting liberty. If liberals could put down their enormous righteousness for a second, and if conservatives could open a history book and come to terms with the fact that no right is utterly unqualified, we’d be on a good track. Then, let’s call our representatives in Congress and explain to them that they work for us, and that we expect them to write laws that are designed to keep us safe – no more, no less.

[Image via Christopher Slesarchik/Shutterstock]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos