In the next few weeks the issue of gun control is likely once again to be at the forefront of the American mind. It is a polarizing debate, and no amount of argumentation in the next few weeks is likely to make major inroads into the opinions of the various sides of this issue. Nevertheless, my sincere hope is that it might be possible to come up with a more comprehensive national gun policy that is sufficiently open-ended to be acceptable to all sides. To this end, I want to offer up a few reflections. In doing so, I want to tip my cap to my gun-loving colleague Professor Hinze, whose freewheeling approach to the issue has influenced me more than he realizes.
I do not see the need for assault weapons or other similar kinds of guns. I say this, admittedly, as someone who does not partake in the pleasures of gun ownership. Yet even if significant amount of personal satisfaction is something that is characteristically derived from gun ownership – including especially of the kinds of weapons that are not typically employed for hunting or for personal defense – it does not seem to me to be too much to ask gun owners to forego some of that pleasure for the sake of a safer public society. In saying this I am not asking the owners of conventional weapons – hunting guns and personal defense guns – to forego such weapons. I only mean for this opinion to apply to non-conventional gun owners – the owners of weapons that do not typically have a utilitarian purpose. And I truly do mean it when I say that banning such weapons would lead to a safer society. Such weapons do not really serve a defensive purpose – they are offensive in nature and they are most of the time conducive to the mass shooting tragedies which are so disturbing and gut-wrenching.
I also think that there is a real need for more thorough education on the actual gun statistics. The statistics uniformly show that a gun in one’s house is much more likely to kill a member of the family than to kill an armed intruder. Think of the countless accidents that occur each year – teenagers hanging out with each other, they decide to check out dad’s gun, one of them says he knows it’s not loaded, and then the gun turns out indeed to be loaded and it goes off, wounding or (God forbid) killing one of the kids. But most people are not aware of the statistics or they think (erroneously, it turns out) that their house will be the exception. It is imperative that all sides of the debate – whether the pro-gun lobby or the anti-gun lobby – be committed to a program of education that alerts people to the real nature of the gun statistics. It seems to me as though it is most in the interests of the pro-gun lobby to hide this ugly truth about guns in houses, so I think that that side of the debate needs to make a special effort to get the message out about the real nature of the statistics.
It also seems to me as though it is hypocritical – and I do mean this in the full sense of the word – for people on the anti-gun side of the debate to appeal to the original intent of the founders in authoring the second amendment if they do not typically make similar appeals on other kinds of issues. There needs to be a greater awareness of this inconsistency in constitutional interpretation. A lot of the people who line up on the anti-gun side of the contemporary debate also line up on the liberal side of contemporary social issues in the culture wars. The liberal side of the culture wars is famous for its commitment to a ‘living constitution’ theory of constitutional interpretation – one which takes it to be acceptable for the meaning of the Constitution to change over time in accordance with the larger cultural changes in the society. But it is highly hypocritical to invoke the living constitution theory on such important issues as the right to privacy and also on interpretations of the equal protection clause when one is not willing to invoke that theory on the gun control issue. Please, please be consistent in your interpretations of the Constitution – don’t just pick and choose your theory of Constitutional interpretation in accordance with the greatest amount of situational expediency. If you are going to be a living constitution theorist, then be one across the board. But if one is a dead constitutional theorist – like I am (the technical term is ‘originalist’), then by all means be that across the board as well. I think that the second amendment should be interpreted the way the founders wanted it to be interpreted, but I also think at the same time that the other amendments should be interpreted in accordance with their original meaning as well – so consistency of constitutional interpretation is a value that I think can and ought to be upheld in the course of the gun control debate.
In light of these considerations I would consider myself to come down on the side of the anti-gun lobby, but with the significant qualification that I consider it to be reasonable for gun owners to own certain kinds of guns – the kinds that are useful for hunting and also for personal defense. But a better sense of education all around is something that definitely is needed on this issue and perhaps that is a rallying point for all sides of this debate.