Rule of Law and the Gun Control Debate in America

Introduction

The one element that legislators, Second Amendment supporters, and advocates of gun control all have in common is safety. Legislators pass laws that they believe will make the country safer. Second Amendment supporters believe in the constitutional right to bear arms because it gives them the ability to protect themselves. Gun control advocates believe that guns should be banned or more strictly regulated because they think this will make everyone safer. Thus, safety is at the heart of the gun control debate. What creates such conflict and tension among the various sides is the fact that every side has a unique perspective on safety and how best to ensure it.

Legislators believe that nuanced legal changes can help ensure safety. Gun control advocates believe the Constitution itself needs to change — that nuances in law are insufficient and that major changes, such as abolishing the Second Amendment, must be made. Second Amendment advocates, on the other hand, believe the only thing that makes them safe is their own ability to defend themselves with a firearm. If they cannot bear arms, they reason, they are essentially subjects of the state with no recourse. Since there is no way to reconcile these three perspectives, the gun control debate remains fierce. It will not subside until one side prevails over the others — but how that will occur remains unknown.

The Rule of Law

Radin (1989) notes that "the ideal of 'the rule of law, not of men' calls upon us to strive to ensure that our law itself will rule (govern) us, not the wishes of powerful individuals" (p. 781). The point he makes is that in the legal tradition, the rule of law ideal is contested: those who support it cannot point to any single canon that defines it, while those who object to it view it as too idealistic to be of any real value (Radin, 1989). Yet people still believe in the rule of law, if only as a transcendental ideal, because of the utility it has in shaping one's moral course. The moral course of a country is no different from that of its citizens. If people dispute the relevance of the rule of law concept, how much more will they dispute a concrete right — such as the Second Amendment — that controversially grants a nation the right to bear arms even while those arms are used to inflict violence in one mass murder event after another? Radin (1989) does not answer that question, but he lays out the framework by which it might be addressed.

Scalia (1989) offers his take on the rule of law as a law of rules, invoking the image of St. Louis dispensing justice as a fair monarch — his back to an oak tree, those with suits to press gathered around him — and contrasting it with Thomas Paine's argument against monarchy: that in a monarchy the king is law, but in a free society the law is king. This emphasis on law as king places the letter of the law above the rational judgment of any individual. Yet, as Dunn (2013) reminds us, it is the spirit, not the letter, that gives life. Scalia's (1989) broader point is that the rule of law ought to be balanced by personal discretion and a general sense of justice. There is no reason law, by itself, must be inflexible or absolute. When law is presented as a cudgel, it loses its appeal. Law should be tempered by fairness and understanding; when it is rigid, it functions more like a yoke than a guide.

Gun Control Policy and the Second Amendment

The gun control debate can be understood in similar terms. Cook, Braga, and Moore (2011) argue that gun control has broad support among the American public — but so does the Second Amendment. Across this wide spectrum lies the range of restrictions that Americans will support, tolerate, or oppose. As LaFollette (2000) puts it, "this scale moves from those who want absolute restrictions (AR) through those who want moderate restrictions (MR) to those who want no restrictions (NR) at all" (p. 263). Moreover, it is not simply a matter of banning guns or gun sales. Proposed "restrictions vary not only in strength but also in content. We could restrict who owns guns, how they obtain them, where and how they store them, and where and how they can carry them" (LaFollette, 2000, p. 263). The extremes — total restriction on one end and no restriction on the other — represent a core part of the problem, because the matter is not only one of deciding whether guns should be permitted, but also who should have them, how they may be obtained, and when they may be taken away (LaFollette, 2000).

Lindgren (2014) emphasizes the importance of understanding the Framers' intention when they included the Second Amendment in the Constitution. This right to own firearms is a fundamental right, comparable to the right to due process. Policymakers disagree substantially over how many stipulations should be placed on gun ownership. Lindgren (2014) argues in favor of some policy addressing these stipulations, but he also acknowledges that such policy is unlikely to have much effect on reducing gun violence in the larger scheme of things. Policy, after all, is for people who consciously choose to abide by the rules. People who commit gun violence are outside that group: they have no intention of abiding by any gun policy. If they can obtain a gun to commit acts of violence, they will. If they cannot, they will find another weapon. Underlying Lindgren's (2014) argument is a basic principle of character: what shapes people's decisions is ultimately not policy, but the character that determines whether they will act in accordance with rules or act on impulse and passion.

Lindgren's (2014) argument invites a reframing of the gun control debate. Why do policymakers focus only on the means by which violence is conducted, rather than on the motives or character problems underlying the issue of gun violence? It should be self-evident that there is far more to the problem than the mere existence of the Second Amendment.

Vizzard (2014) offers a contrasting view, suggesting that only gun control policy can effectively address gun violence — yet even he observes that effective policy is unlikely to be implemented given the depth of disagreement on the subject. Crucially, Vizzard (2014) does not reduce the issue to one of access alone. He states that "two important facts regarding homicide should inform policy: many homicides are spontaneous actions facilitated by the presence of firearms, and second, these homicides are concentrated culturally and geographically" (p. 904). He further explains that "decentralized efforts directed at reducing gun carrying and violent behavior among at-risk populations seem to offer the most potential for reducing gun violence" (p. 904). In other words, policy should not be dictated solely by the central government, because the nation is not homogenous: different regions experience very different levels of gun violence. Policy should therefore be localized and focused on problem areas. Gun violence is also a cultural problem, occurring in populations with specific cultural contexts. Policy should thus address not just the right to own guns, but the underlying problem of controlling violent behavior. Vizzard (2014) recognizes that the inherent problem in gun violence is behavioral — people who engage in violent acts with firearms have behavioral problems that must be addressed alongside any legislative approach.

Conclusion

The gun control debate is not really just a debate over guns or law. It is a debate over what safety means and to what extent the rights and liberties afforded by the Constitution keep a person safe from his own government. The Framers of the Constitution fought tyranny and crafted a body of law intended to prevent the American government from exercising that same tyranny over its populace. Today, there are people who welcome greater state authority because they fear for their safety without it. Yet the problem is larger than safety and security versus rights and liberty. It is social, cultural, and behavioral. Gun violence is mainly found in specific geographical and cultural contexts within the nation — it is not endemic, but confined to particular communities and populations. Understanding the cultural and behavioral dynamics underlying gun violence can help shift the gun control debate out of its narrow range and direct attention toward the real issues that most need to be addressed.

References

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