We Can't Control Guns. But We Might Control Gun Culture

What the Second Amendment actually means

The two mass shootings in the past two weeks have reignited the debate on gun control measures. In a perfect world, I support such measures- I think it’s insane, for instance, that you can buy a gun without at least a cursory check to ensure you aren’t a violent criminal. And similarly, I think it is insane that we do not license, register, and trace every gun purchase- if nothing else, this would give police more tools to solve gun crimes.

But the truth about gun control, which everyone understands by now, is that such measures are politically impossible. As long as there are Democrats in red states, some of them will tend to join with Republicans to stop gun control measures.

Less appreciated, but also true- even if you were able to overcome the political obstacles and pass something, it would be so weak and watered down so as to have very little effect on gun deaths. For instance, many mass shooters can pass a background check, and a background check measure does very little to squelch the trade in stolen arms anyway- many criminals obtain guns illegally. (I regularly read appellate cases as part of my job, and a decent part of the federal appellate docket involves “armed career criminals” and “felons in possession”, i.e., people with criminal records who were able to obtain guns illegally.)

The basic problem with gun regulation in the United States is cultural. Something like 40 percent of the country is very pro-gun, and they vote passionately on this issue; the opposition to guns is less passionate and generally consists of standard issue liberals who are willing to compromise on the gun issue to get other things done. Further, among those 40 percent is a significant, hard core that not only loves guns, but fears that any gun control measures- even modest ones like a background check- are a prelude to gun confiscation. This is an oft-mocked point of view, but it arises from the fact that since most moderates talk very little about gun control, the pro-gun control voices that exist include a lot of people who really do hate guns, think they are useless, view sport hunting as cruelty to animals and people who have guns for self-protection as selfishly endangering their families and the rest of their communities, etc. One of my favorite examples of this is the belief among many liberals that doctors should routinely ask their patients whether they have guns at home. I am not bothered by this, at all, but that’s partly because I am not a gun enthusiast. But to gun enthusiasts, many of whom think they are good parents and many of whom are very careful about gun storage and the like, the last thing they want is some liberal doctor accusing them of child endangerment because the doctor doesn’t like their hobby. This sort of discourse reads to gun hobbyists as “they want to take our guns away”.

Yesterday, Erick Erickson, a right wing commentator, commented that what we really need are more guns. All citizens, he suggested, ought to own guns. Josh Marshall, on the left, mocked him- having opposed an individual mandate for health care, now conservatives support one for guns.

But it’s worth noting that what Erickson is proposing is not totally crazy. The Second Amendment arose out of a very different history than that of modern America. It’s right there in the text- the preamble discusses “a well regulated militia” as necessary to protect the government. Liberals seize on this to say “you see that! The Second Amendment only protects state militias.” But that’s not exactly right. The second clause of the Amendment does protect the “right of the people to keep and bear arms”, an individual right.

What the Second Amendment actually means is this- the Framers thought an armed populace and military readiness was an important collective, civic obligation, and that a disciplined, trained, regulated militia full of citizens who stood ready to do their civil defense duties was the way to achieve this. The Militia Act, passed by many of the same people who passed the Second Amendment, defines the militia as including most able-bodied free male adults. It was a notion of universal service (“universal”, of course, defined according to 18th Century norms).

We don’t have that now. Instead, we have two Americas- an America that is very suspicious of and afraid of guns, and an America that worships them, puts gun racks on pickup trucks, combines drinking with shooting, and buys calendars of girls in bikinis carrying AK-47’s. And meanwhile, we no longer draft people into the military-we have a smaller, all volunteer force. All of this has taken us farther and farther away from what the Second Amendment conceived.

The Framers conceived something closer to Switzerland. Switzerland has plenty of guns and a populace trained to use them through widespread military service. Switzerland also has far less mass shootings and one of the lowest homicide rates in the world.

What that suggests is that despite liberals’ cultural aversion to guns, Erickson may have a point, but probably not the one he wishes to make. Widespread gun ownership is certainly consistent with low homicide rates, but only if, as the Framers’ intended, it arises in the context of a well regulated militia, like it does in Switzerland. What does this mean? Imagine the following system:

1. Every adult American capable of service in the militia must serve for two years.

2. As part of militia service, each American will be issued a firearm consistent with his or her role in the service.

3. The militia will train Americans in firearms safety, and discipline anyone who treats a firearm in a cavalier manner, not storing it properly, using it while drunk, displaying it or brandishing it other than in a situation where it is necessary for self-defense or the civil defense of the country, and otherwise teaching Americans a reverence and respect for firearms.

4. All such weapons will be registered and traced by the government, and any other purchase of a handgun or assault rifle must be disclosed to a militia commander and stored and used in accordance with militia rules.

The first thing to notice about all of these things is that they are perfectly consistent with the Second Amendment. The Second Amendment, by its text, permits regulation and discipline of the militia and the creation of a militia for the purpose of civil defense. The second thing to notice is that these are a pretty serious form of gun control that would prohibit much of the arms trade in America. The third thing to notice is that, over time, these reforms would create a serious change not only in the way Americans think about guns, but also the way they think about service to the nation.

Now, obviously, I am not expecting conservatives (even Erickson) to come over and endorse these proposals. Modern conservativism is enthralled with a hyper-libertarian vision of gun ownership promoted by the gun industry and backed by a ton of lobbying money. The last thing that industry wants is for gun owners to be responsible. But I think that this sort of proposal would be a conversation starter of sorts, because rather than starting from the premise that what liberals really want to do is stop people from owning guns, it starts from the premise that an armed society benefits society, that gun owners are patriots, and that what we really need to do is honor the history of firearms ownership in this country while recognizing the civic obligations that go along with it. People like being part of a greater cause, and I suspect that such a position could peel people away from the NRA’s highly cynical libertarian arguments.