Gun Control after Vegas: What Does the 2nd Amendment Have To Do With It?

This article first appeared on Dorf on Law.

Police are still investigating the Las Vegas massacre, with the death toll at 59 and hundreds of innocent victims now recovering from their bullet wounds and beginning to deal with psychological trauma that will surely last for decades.

The Republicans' response has been all too typical, using their "not now" mantra to try to shut down debate until the next, even more horrific disaster.

A tragedy this extreme has also brought forth a great deal of intelligent commentary, with a range of writers and many Democrats asking plaintively if we have finally reached the point where we might do something -- anything -- to try to prevent future mass murders.

One fundamental problem that long predates the carnage in Las Vegas is that the people who oppose the mindless extremism of the Republican Party and the National Rifle Association have meekly allowed the discussion to be about "gun rights," cowering in fear of a mythical version of the United States Constitution.

This must stop. The simple fact is that the barrier to better regulation of guns is political timidity, not the Constitution. Acting as if the Second Amendment needs somehow to be overcome -- including silly suggestions that we cannot do anything until we repeal that amendment -- is not just politically damaging but legally baseless.

It is hardly surprising when the NRA's shills in Congress try to turn every discussion about gun violence into an abstract constitutional question. When, for example, House Speaker Paul Ryan recently spoke with the father of a victim of a white supremacist, the talking point was as predictable as it was hollow: "We also have to make sure we protect our Second Amendment rights for law-abiding citizens. So there's always a balance when you discuss these types of things."

Again, that is straight from the Manual of Distraction that the Republicans know by heart. Invoking this and other specious arguments, such as the claim that "nothing can solve the whole problem, so we should not do anything," Republicans have spent decades perfecting the art of bobbing and weaving.

But the Republicans in Congress are representing the views of only a fraction of Republican voters, just as the NRA represents only a tiny fraction (something like four percent) of gun owners. Why do liberals, centrists, and sane conservatives go on the defensive every time they talk about guns? They apparently think they are on the losing side of a constitutional argument, even though they most definitely are not.

Consider one example. A few years ago, when Jon Stewart was still hosting "The Daily Show," his guest was the sportscaster Bob Costas. I honestly cannot recall which mass shooting was then dominating the news -- there are simply too many to keep straight -- but Costas had said something on the air a few nights before about the shocking ease with which people can buy guns in this country.

Naturally, Costas had been quickly assailed by gun extremists, and his appearance on Stewart's show was surely a welcome respite. Stewart, like Costas, thought that the country should pass some restrictions on guns. What caught my attention, however, was their needless concession on the Second Amendment.

I cannot recall which one said it first, but one of them said something along the lines of, "Now I don't want to trample the Second Amendment," and the other quickly agreed. Both went to some lengths to say that they respect people's rights to own guns, acting as if there were meaningful constitutional issues in play.

The simple fact is that there were no such issues. Not then, and not now.

It is true that the Supreme Court (aided and abetted by less than a handful of contrarian liberal legal scholars) mangled the meaning of the Second Amendment in the 2008 Heller case. Justice Stevens' dissent continues to be essential reading. But even under the majority's misreading of the Constitution, there is plenty that can be done to regulate and control guns.

We learned recently that Nevada's Republican politicians have been doing everything they can to ignore the will of their state's voters, who passed a ballot initiative last November to require background checks for private gun sales. That is disgusting, and Nevadans should take the next opportunity to punish their politicians for ignoring the will of the voters.

But if the Republicans' favorite talking point -- that we cannot do anything about guns because of "the Second Amendment rights for law-abiding citizens"-- were right, then Nevada's governor and attorney general would not need to be so sleazy. They could simply have gone straight to court and obtained an immediate order to prevent the law from ever taking effect.

After all, if "the right to keep and bear arms" is infringed by any law having to do with gun ownership, then the Nevada initiative is unconstitutional. But it is not, and the Republicans know it.

Similarly, we now know that the Las Vegas mass murderer used a special adapter that turns a semi-automatic weapon into a machine gun. But why did he not simply buy a bunch of machine guns? Because they are illegal. How can they be illegal, though? Does the Second Amendment not require us to "balance" good Americans' rights to own machine guns against the damage that they do?

Of course not. Machine guns are illegal, and they have been for decades. Nothing that the misguided majority in Heller wrote comes close to undermining that legal principle. Indeed, the Heller decision confirmed that the Constitution is wholly consistent with limiting or banning all kinds of arms and with prohibiting the bearing of otherwise legal guns in all kinds of places (including the Supreme Court building).

Even the NRA is now apparently admitting as much, given reports that the lobbying group is giving Republicans permission to consider regulating "bump stocks."

If the Republicans' rhetoric were correct, there would be no need for people in upstate New York to put stickers on their bumpers (next to the Confederate flag) that say, "Repeal the SAFE Act," which is the 2013 law that New York passed after the Sandy Hook murders. Yes, even though Congress refused to do anything after Sandy Hook, some states did take action.

Moreover, Republicans love to talk about how the states and cities that have strict gun laws (including those passed years and decades before Sandy Hook) still have problems with gun violence. The most direct answer to that claim is that national laws would work better than local ones, but the more fundamental point is that those laws exist at all, and the courts have never (pre- or post- Heller ) struck them down.

This really is not news, or at least it shouldn't be. There is no constitutional problem with gun control laws that are much, much stricter than anything that is currently being considered. For good people to say, "Oh, but we need to tread carefully -- the Second Amendment, you know," is unilateral disarmament (grim pun intended).

There is an echo here of the debate over the Affordable Care Act, and the right's invocation of The Broccoli Example. There, the idea was that if the Constitution did not prevent Congress from forcing people to buy health insurance (or pay a small tax), then the government could soon force people to buy broccoli for their own good. Big Brother!

The only sensible response was to say that the political process is the proper venue for such debates. If Congress wanted to pass a law about broccoli, it could do so. If the people did not like it, Congress would hear about it. Any limits that the Constitution imposes on legislation were simply not relevant to the debate. Plenty of bad laws are constitutional, even though they are bad.

Regarding guns, the Republicans and their media echo chamber are trying to make it seem that there is a binding constitutional constraint on any action that sane people might want to take. But there is no Second Amendment principle that, say, forced Congress to pass a law preventing the Bureau of Alcohol, Tobacco, Firearms, and Explosives from using computer technology to track gun-related violence.

There is certainly no constitutional rule that prevents the government from studying gun deaths, or from regulating guns as a public health issue. Some people think that the government should not do so, but that is a political preference, not a constitutional imperative.

I noted in two recent columns that many centrists and liberals, and even (supposedly left-leaning) journalists, give far too much ground to Republicans' talking points about taxes. By ceding that ground, they reinforce a slew of baseless notions that then become conventional wisdom.

Conceding the baseless claim that we are up against a hard constitutional limit when dealing with guns is at least as damaging.

Saying, "Yes, I understand that people have the right to own guns, but ..." is as pointless and counterproductive as saying, "Yes, I understand that the government cannot force me to quarter soldiers in my home without my consent, but I want an Army base to be built in my town," or "Yes, there is a prohibition on cruel and unusual punishment, but I still want a person to go to jail for burning down my house."

The point is that there are always constitutional boundaries lurking the background, but we almost never talk about them unless they are of immediate relevance. On guns, none of the current debate comes even within shouting distance of those boundaries.

All of which reinforces the reality that this is all about political posturing. Requiring any debate over gun regulation to begin with a nod to the Second Amendment is no different from the absurd concession by liberals in the run-up to the Iraq invasion in 2003: "I support the troops, but ..."

Stop. The Constitution does not prohibit aggressive policy responses to gun violence. Pretending that we have to tiptoe around an amendment that clearly permits all kinds of regulations prevents us from seeing this as a simple political matter. Republicans are afraid of an honest political debate. There is no reason to let them continue to avoid it.

Neil H. Buchanan is an economist and legal scholar and a professor of law at George Washington University. He teaches tax law, tax policy, contracts, and law and economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs and Social Security.

Gun Control after Vegas: What Does the 2nd Amendment Have To Do With It? | Opinion