But where do we go from there, with only one political party committed to taking action that would sensibly save lives without infringing on any honest understanding of the Second Amendment, while the other one looks away from the funerals with "thoughts and prayers" while the NRA, a gun-manufacturers' lobbyist group that ironically started life as a gun-safety organization, stuffs campaign cash in its pockets?
The debate we're having now is not about guns generally. If that was ever a battle, and I don't think it was, it ended a long time ago, and gun-ownership advocates won it handily. No one objects to the personal defense of one's home or business. No one (or, at least, almost no one) objects to hunting. And no one objects to the existence of firing ranges. I don't object to any of these things. When it comes to hunting, well, I eat meat, so I would be a hypocrite to object to that. I shot air rifles in summer camp, and enjoyed it very much. And, if you live or work in a rough patch, no one's going to object to you taking steps to protect yourself--provided that the steps you take include making sure that any weapons you owned are secured in such a way that someone can't gain access to them in order to misuse them.
Guns are dangerous. They are weapons. They are dangerous by design. This is why they need to be regulated in the first instance. And the Constitution explicitly fails to blink at this need; it not only recognizes the need to keep arms regulated, but "well-regulated." Moreover, the Second Amendment provides for regulation even in the context of military use, i.e., the "militia." Militias are organized. Militias exist and operate under color of state law. Militias are not randomly-summoned groups of people who think of firearms as a fashion or party accessory. Militias are meant to act in response to specific threats against the general public, not members of a particular political party.
And, when that threat is vanquished, militias are meant to stand down, permit the resumption of civilian life, and be ready for the next threat. That is why the right to the personal possession of firearms is recognized as a constitutional right in the first place.
Indeed, that is why then-Justice Antonin Scalia struck down, on behalf of the Supreme Court in District of Columbia v. Heller, a D.C. statute that forbade all private ownership of guns in the district. That law went too far; under any understanding of the Second Amendment's terms, it could not pass constitutional muster. As an attorney, I disagree with the reasoning in Heller, primarily because it strove to diminish the import of the clause regarding regulation, and then left the broader question of whether any gun regulation is constitution to dicta that states, outside of the ambit of the Court's legal holding, that there are many reasons why government should be able to regulate guns. This was based on a cramped philosophy of statutory construction, which somehow treated the "well-regulated" clause as purely introductory, while failing to construe that the right preserved in the Amendment is a right of "the people" and not of individuals.
Heller is worth a law review article all by itself, but that's not my purpose in bringing it up here. Rather, I want to emphasize that at least some conservative voices, like that of the late Justice Scalia, understand that the right to own guns and the power of the state to regulate them exist in our constitutional structure, as do many other seemingly contradictory provisions, in order to balance each other and to ensure that neither is being misused for purposes other than the formation of a more perfect Union.
In other words, weapons of war fall outside of the protection of the Second Amendment. There is no Second Amendment right to own explosives. There is no Second Amendment right to own artillery. There is no Second Amendment right to own missiles or missile-launchers. And there is no Second Amendment right to own an H-bomb.
And that's the problem we have. That's why the lost souls of Atlanta and Boulder join those of far too many other communities across the nation.
They were killed by weapons of war. Specifically, by assault rifles. By guns that have no essential, or even practical use in civilian life. By weapons designed to be lethal on such a massive scale that their regulation is a matter of public safety, not tyranny. Any individual with deadly intentions or an inability to control their intentions, deadly or otherwise, only needs one such weapon, and one magazine with which to load it, to become a public menace.
That is, to become a menace to the peaceful operation of society. To become the exceptional moment, not the everyday one. To become a source of righteous outrage that demands swift, effective action by public officials, regardless of their party affiliation and, above all, regardless of who is paying their bills.
Thoughts and prayers don't cut it. Thoughts and prayers with a willingness to enable the circumstances that ensure more opportunities for them amount to the worst sort of virtue-signaling. It doesn't wash the blood off the hands of those doing the signaling, any more than it washes it off the hands of the people who pull the triggers.
Once upon a time, back in the 1990s, a period that was no stranger to partisan culture wars, we managed to muster enough combined outrage and common sense to ban assault weapons. It worked. There is absolutely no reason that it can't work again. It won't stop every mass killing, but it would stop many of them, and it would be a far more fitting memorial to those we've already lost. It would be absolutely more appreciated by the survivors of those we've already lost than "thoughts and prayers." And there are additional steps that need to be taken, that would help to ensure fewer lives lost without violating anyone's right to keep and bear arms.
If it were up to me, we would, as a nation, emulate Japan, which has one of the lowest rates of deaths by gun violence in the world. Take a look at the video here, which outlines in detail the steps that a private individual needs. Maybe you think it's too restrictive. Frankly, I don't. But, that could just be me. I measure the burden that it imposes on the lives of prospective gun owners in Japan as far smaller than the burdens that the deaths of victims imposes on the victims themselves. Good news: they have no need to worry about government forms and tests. Bad news: they're dead, and any dreams they had are with them. This doesn't even begin to get into the burdens imposed on their survivors, and on society when it comes to the costs of caring for the victims and the survivors.
If you have any doubt about the costs on all of us that the Wild West of the current status quo imposes, take a look here. At the very least, gun manufacturers and gun owners should be required to be insured against the harm that comes from being a paradise for gun-toting.
And the extent of gun-toting that we now have isn't even enough for the gun-toters. Once upon a time, I used to joke that they wouldn't be satisfied until everyone is required to own one. Well, the joke is now on me. But, sadly, now it's on all of us. And death may be an inevitability, but that doesn't give anyone the right to make it more likely.
Strictly speaking, this should not even be a partisan divide. The New York Post, whose owner has done more to support Donald Trump than anyone else has, has consistently taken a position in favor of an assault weapons ban. It recently re-affirmed that position. But the Post appears to be an isolated case. The Washington lobbyists masquerading as office-holders, and the investing class that funds their perpetual re-election, prefers to allow the merchants of death to rake in the big bucks, even while proclaiming themselves to be "pro-life."
To borrow from Lincoln, and as the assault on the Capitol demonstrated, we are now engaged in a great civil war. Between a party that respects the Constitution, including its provisions on guns, and a party that treats the Constitution as a slogan, and views guns as both a means and an end. Ultimately, the type of society we will have, the type of society your children will grow up in, will depend on which one of those parties wins, and keeps on winning.
That's up to you. But, if you really want to choose life without upsetting the Constitution, you should know by now which one you need to vote for. Next year, and after that as well.
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