by Carlos L. Diaz
The tragic on-air shooting of two television journalists in Virginia last month predictably sparked a familiar debate about the place of gun ownership in contemporary American life. As in past tragedies, this debate commenced in the immediate aftermath of the shooting and culminated a few weeks later with no change in gun laws. Unfortunately, the outcome of this debate was largely determined by the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010). In Heller, the Supreme Court—with the assistance of questionable “law-office historiography”—interpreted the Second Amendment of the Constitution as granting Americans an individual right to possess a firearm for lawful purposes (McDonald held this interpretation applicable to the states).
The right to bear arms should be defended for its own value and not protected by a legally unconvincing and historically dubious interpretation of the Second Amendment. The Court’s decisions unwisely and misguidedly imposed a nationwide standard on the regulation of firearms. This is problematic because most federal regulations of guns are undesirable or inappropriate in light of the nation’s diverse social conditions and culture. After McDonald, a person living isolated in the High Plains has the same basic right to own a handgun as someone living in a 350 square foot apartment in Manhattan. A majority of urban-dwellers may reasonably oppose the right to bear arms. After all, guns offer very little social value to densely-populated urban centers and come at a staggeringly high cost—chiefly increased risk for police, who must operate under the assumption that many of the citizens they encounter are armed and pose a threat to their safety. On the other hand, support for the right to bear arms in rural and isolated areas is justified because firearms are used for hunting and even to protect property and human life in parts of the country where police resources are minimal.
Justice Scalia judicially forged a shield that protects the right to bear arms from arguments that are quite strong. Before being declared a “fundamental right,” advocates of the right to bear arms would argue that guns are necessary for collective (from the government) and individual (from humans) self-defense. When the self-defense argument failed, they would claim that gun control unfairly infringes on the freedom of gun owners, most of whom never commit acts of gun violence. In the post-Heller environment, an argument in favor of gun control (beyond obvious measures such as background checks and restricting access to children) is easily deflected by pointing to the Constitution—after all who can oppose that most American and patriotic of documents. This means that there is only one way to address the issue: amending the Constitution—a quixotic feat if there ever was one. Stripped of its nearly impenetrable judicial shield, the right to bear arms is vulnerable and strict gun control measures are much harder to oppose politically because any opposition runs the risk of seeming capricious or, on occasion, unreasonable. A simple cost-benefit analysis of the right to bear arms would lead to significant restrictions to this right in many places.
There is no doubt that gun violence in this country is a serious matter of public concern. According to the website shootingtracker.com, there have been 249 mass shootings this year—about one per day. Since 2001, gun homicides in the U.S. have averaged more than 11,000 per year. Compared with other advanced industrial nations, the U.S. is an outlier when it comes to gun homicide. For instance, the U.S. has a gun homicide rate that is more than fifty times higher than that of Germany and the United Kingdom. Coincidentally, there are around three hundred million guns in this country—almost enough to arm every citizen.
It is probably too late to confront the issue of gun violence in the U.S. There are practical issues with removing three hundred million guns. We have a deeply ingrained fear gun culture that, with the assistance of an effective gun lobby, resists change effectively. There is a valid fear among some that only law-abiding citizens will give up their weapons and be left at the mercy of unscrupulous criminals who will remain armed. Drug legalization is one way of reducing the level of gun violence and gun ownership among criminals—and the number of “criminals” itself. However, a more realistic, though admittedly less meaningful, step towards confronting the issue of gun violence, will be overturning Heller and McDonald. Having both sides of the gun control debate argue the merits of their case will not solve the gun violence problem—perhaps it will not even have a cognizable effect—but at least it will allow for a more vigorous and honest debate.
Carlos L. Diaz is an Executive Managing Editor of the FIU Law Review. He is also the principal editor of the FIU Law Review Blog. Diaz can be reached at manedit@fiu.edu.