By Prof. John Frary
“It’s time to talk about gun control.” This was the title of a Washington Post editorial published on December 14. The editors acknowledge objections to exploiting tragedies for political purposes, but argue that there has been too little said or done on the issue and the time has come.
The time has come because “… the country would be safer with fewer guns … that it is not the Second Amendment but political cowardice that precludes sensible regulation.”
Talk, of course, has been flowing fast and furious (lots of furious) across the nation. In Maine Ethan Strimling, a senator from 2002 to 2008 whose gun regulation bills were routinely thwarted, proposes a petition drive to “force the legislature’s hand.” The presidents of Bates, Bowdoin, Colby, St. Joseph’s, UNE and College of the Atlantic have signed a letter along with more than 160 other college presidents announcing that “it’s time for Americans to live free from the threat of gun violence.”
Portland’s Mayor Brennan has signed an open letter from dozens of American mayors “calling on President Barack Obama and members of the U.S. Congress to pursue sensible gun laws.” The Bangor Daily News published a Dec. 19 column by Professor Robert Klose of UMA calling for a repeal of the Second Amendment. Rep. Chellie Pingree and Senator-elect Angus King say they could support significant changes to the nation’s gun laws. No telling how many letters to the editor the issue will generate.
Rep. Lance Harvell (R-Farmington) agrees that it’s time to talk about gun legislation, but his idea is more orderly and specific. He is working to organize a rational debate at the University of Maine at Farmington. Both of us are pessimistic about the possibility of a rational debate, but we agree about the broad criteria of a rational debate.
First, the Constitutional question requires clarification. Prof. Klose’s repeal proposal would resolve that problem, but it’s hopelessly impractical. Article V of the Constitution requires a two-thirds majority in Congress or two thirds of the state legislatures to hold a new constitutional convention. Three-fourths of the state legislatures must agree to an amendment. There are only seven states with restrictive gun laws. Do the math.
Interpretation of the 2nd Amendment is open to debate. Prof. Klose accepts the reading, articulated in 1978 and 1988 articles by Harvard’s Lawrence Tribe, that the Amendment is a collective right guaranteed to the state militias, i.e., their National Guards. Presumably he is unaware that Prof. Tribe reversed himself in 2000, having accepted it as guaranteeing an individual right. A quote from a May 2007 article in the New York Times: “My conclusion came as something of a surprise to me, and an unwelcome surprise. I have always supported as a matter of policy very comprehensive gun control.”
Prof. Sanford Levinson at the University of Texas, one of several liberal legal experts who have come around to the individual rights interpretation explained in the same article that the liberal misinterpretations “reflected received wisdom and political preferences rather than a serious consideration of the amendment’s text, history and place in the structure of the Constitution. The standard liberal position is that the Second Amendment is basically just read out of the Constitution.”
Representative Harvell believes that a serious debate must give serious consideration to the Amendment’s text, history and place in the structure of the Constitution; as opposed to repeating the “received wisdom.” Robert Klose, like many others, heard the standard liberal position years ago and embraced because it spoke to his “political preferences.” A rational debate, however, requires a closer and more detached examination.
A rational debate must also thresh out the loud and promiscuous calls to “action” to find what legislation is actually being proposed. Ironically, thousands of Americans, including Mainers, are already taking action. They are buying guns in such numbers that they have imposed an effective waiting period of months as manufacturers and retailers struggle to keep up with demand. This is clearly not what hundreds of politicians, pundits, and professors have in mind when the call for action.
The Washington Post editorial illuminates the confusion about the action-demanders agenda. It calls for “sensible regulation” and fewer guns in the same paragraph, although most of the regulations so far proposed will have little or no effect on the number of guns in private hands.
The “College Presidents for Gun Safety” website specifies reinstatement of the ban on military-style, semi-automatic weapons and an end to a loophole allowing people to buy guns from unlicensed sellers at gun shows without criminal background checks. Nancy Pelosi talks strangely of banning “assault magazines.” Rupert Murdoch seems to believe Americans can buy automatic weapons in the gun store of their choice. Dianne Feinstein (D-Calif.) is introducing a new assault weapons ban to replace the 1994 ban, which was later rescinded. U.S. Attorney General Eric Holder said in February 2009 that President Obama had “just a few” gun-related changes in mind and, among them, “re-institution of the ban on the sale of assault weapons.”
Questions about the practical effects of the proposed laws and regulations are neglected amidst the current grief and excitement. Rep. Harvell proposes to address part of this confusion by including someone in his debate who actually knows about guns. This would certainly improve the quality of the discussion. People knowledgeable about guns have been having great fun with the hopelessly muddled definitions in he 1994 law.
The neo-conservative pundit Charles Krauthammer, who has no problem in principle with gun control and supported the 1994 “assault weapon” ban, points out that it didn’t work “because it’s almost impossible to craft a law that will be effective.” The new law Sen. Feinstein proposes exempts 900 weapons. It would grandfather existing weapons and magazines. Since there were 1.5 million “assault weapons” and 25 million large-capacity magazines in circulation in 1994—and more now—its practical results would be negligible.
Even if we could design an effective law for banning these rifles, there would be little benefit to public safety. The FBI figures for 2010 show 358 rifle murders and 745 by “hands, fists, and feet.” Banning handguns would be vastly more effective. In 2010 they were the weapons used in over 6,000 murders, but see the figure for handgun ownership in the next paragraph.
Hopes for the effectiveness of plugging the “gun-show loophole” run into the widely accepted statistic that there are 300 million guns, including 100 million handguns, owned by American civilians. Nobody knows how much trading in guns is carried on outside of retail outfits and gun shows, but from my personal knowledge I would guess a lot. And how much trading would switch from the gun-show floor to private places—100%, 99%, 98%?
A practical analysis of any programs for stamping out the “American gun culture” or taking millions of guns out of private hands (some of them presumably cold and dead) should include realistic estimates of the number of arrests and gunfights we can expect. That daunting 300 million is often cited as evidence of the urgent need for national disarmament. It must also be recognized as presenting an enforcement problem, which would require a huge increase in the exercise of police power.
These are some of the elements Lance Harvell would like to see included in an orderly, rational gun control debate.
Professor John Frary of Farmington, Maine is a former US Congress candidate and retired history professor, a Board Member of Maine Taxpayers United and an associate editor of the International Military Encyclopedia, and can be reached at:firstname.lastname@example.org.