Extreme advocates of the right to own guns believe three principal errors:
+ Any gun regulation will result in the abolition of all firearms.
+ Constitutional rights are absolute.
+ Laws that cannot prevent mass shootings are not worth passing.
President Barack Obama began 2016 with an assertive move: announcing new executive actions to curb gun access, some of which match changes Congress rejected by a close vote in 2013. Determined to address a scourge of gun violence that the legislative branch has not mustered the will to tackle, the president called out Republicans and the gun lobby for rejecting utterly modest and reasonable reforms that will make it more difficult for criminals to acquire guns.
Everybody seems focused on parsing the tears Obama shed when recalling the slaughter of schoolchildren in Newtown, Connecticut, a little more than three years ago. Some praised the president for wearing his emotions on his sleeve during the speech. Others dismissed the presidential weeping as “crocodile tears.” Fox News anchor Andrea Tantaros had the temerity to question their very authenticity. “It’s not really believable,” she said. “Check the podium for a raw onion.”
But the most notable characteristic of Obama’s speech was not the emotion he displayed while reminding Americans of the gun-related tragedies of recent years. His words are more impressive for the devastatingly on-point take-down of the position staked out by gun-rights activists. The enduring value of his presentation is the persuasive justification for the gun reforms he is pursuing that paints opponents as beyond the pale of reasonability.
The lesson began with a reminder about the nature of constitutional rights. While the National Rifle Association (NRA) and other gun-rights groups hail the Second Amendment as a constitutional beacon guaranteeing Americans the right to own weapons, including firearms, no gun lobby will countenance any new moves to limit or regulate guns. Why? Because even a move as seemingly innocuous as certifying that someone may legally buy a gun is a harbinger for dark days ahead. Background checks today, they say, mass gun forfeiture tomorrow. Taking a conceptual cue from James Madison’s “Memorial and Remonstrance” (a 1785 missive opposing a proposal for a tax to support a Christian school), where the founding father warned that “it is proper to take alarm at the first experiment with our liberties,” Republicans decry Obama’s moves as the first step of a “gun-grabbing agenda.” The idea of universal background checks for gun buyers may sound mild and reasonable, but it’s the first step on a slippery slope that ends in the government raiding your home and taking away all your guns.
Slippery-slope reasoning is as popular in politics as it is in bad high school debates. But any good law student learns both how to make a slippery slope argument and how to attack one. And the constitutional law professor in President Obama is fully equipped to explain why the GOP’s hysteria around gun regulations should be dismissed as the ranting of ideologues rather than as the positions of reasonable people.
Obama’s first line of attack was to put to rest the notion that constitutional rights are absolute.As precious as the freedoms enshrined in the Constitution are (and yes, they are precious), all of them are subject to certain limits. “I mean, think about it,” Obama said. “We all believe in the First Amendment, the guarantee of free speech, but we accept that you can’t yell ‘fire’ in a theater.” That famous line, stemming from a 1919 Supreme Court decision written by Justice Oliver Wendell Holmes, Jr., established a rule that speech posing a “clear and present danger” does not enjoy constitutional protection. There are similar limits on speech that incites violence, libelous speech, “fighting words,” and false advertisements. And no rights outside the First Amendment context are immune to restriction either. “We understand there are some constraints on our freedom in order to protect innocent people,” Obama said. “We cherish our right to privacy, but we accept that you have to go through metal detectors before being allowed to board a plane. It’s not because people like doing that, but we understand that that’s part of the price of living in a civilized society.”
So while the Supreme Court ruled in 2008 that the Second Amendment guarantees an individual’s right to own guns, it has repeatedly refused to say that such a right precludes laws that regulate gun ownership, impose conditions on gun sales, or ban certain styles of weapons. When supporters of the NRA suggest otherwise, they are either lying or mistaken.
Obama’s second observation was equally compelling. The NRA opposes gun control laws because they cannot be sure to prevent mass shootings. The lobby is right about that, of course. With 300 million guns gracing our shores, there is no silver bullet that will prevent every potential shooter from wreaking havoc. Note how the president handled this objection:
“Each time this comes up, we are fed the excuse that common-sense reforms like background checks might not have stopped the last massacre, or the one before that, or the one before that, so why bother trying. I reject that thinking. (Applause.) We know we can’t stop every act of violence, every act of evil in the world. But maybe we could try to stop one act of evil, one act of violence.
Some of you may recall, at the same time that Sandy Hook happened, a disturbed person in China took a knife and tried to kill — with a knife — a bunch of children in China. But most of them survived because he didn’t have access to a powerful weapon. We maybe can’t save everybody, but we could save some. Just as we don’t prevent all traffic accidents but we take steps to try to reduce traffic accidents.”
President Obama knows that his new executive actions will not eliminate gun violence in the United States. He readily admits that. Critics have pointed out that Obama’s reforms are not quite up to the task of addressing the full magnitude of the harms he identifies, and that criticism is fair. But Obama’s speech demonstrated how bankrupt the position is of those who say that expanded backgrounds checks are a terrible idea because they strip people of their rights. Nonsense. In states with tougher background checks, the nightmare scenarios have not panned out for gun owners: “Their guns have not been confiscated,” Obama said. “Their rights have not been infringed.”
Steven V. Mazie is Professor of Political Studies at Bard High School Early College-Manhattan and Supreme Court correspondent for The Economist. He holds an A.B. in Government from Harvard College and a Ph.D. in Political Science from the University of Michigan. He is author, most recently, of American Justice 2015: The Dramatic Tenth Term of the Roberts Court.
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