Notes on the Gun Control Debate

Listening to the debate over gun rights and proposals to regulate guns, I’ve noticed three fairly glaring errors of logic in the arguments of the opponents of gun control.

1.    The Second Amendment is Inviolable.

Proponents of gun rights suggest that the right to bear arms under the Second Amendment is absolute and cannot be limited. But every constitutional right is subject to some manner of reasonable restriction. Probably the closest example is the First Amendment right to freedom of speech.

The Constitution says “Congress shall make no law … abridging the freedom of speech, or of the press.”

Despite this blanket and absolute ban (“make no law”) there are numerous restrictions of the ability to say, write, or publish things. There are laws against obscenity; there are laws against defamation (slander and libel); there are copyright laws that limit one person’s ability to use or incorporate another person’s words or expression; there are a wide variety of time, place and manner restrictions (can’t amplify sound after a certain time, must obtain parade and rally permits, etc. etc.); and there are restrictions on words as action (“fighting words”, yelling “fire” in a crowded theater, claiming “free speech” as a defense against charges of conspiracy.)

The courts have long recognized that there must be reasonable restrictions on every right. In fact the Fourth Amendment right against unreasonable search and seizure is now a Swiss cheese of restrictions around a few holes of rights. And the Supreme Court, in Heller (District of Columbia v. Heller, 554 U.S. 570 (2008), the case that said that the Second Amendment conferred an individual right to bear arms) said that there can be reasonable restrictions on gun rights.

2.    The Slippery Slope.

Yes, the proponents of gun rights say, there can be “reasonable restrictions,” but the reality is that if we start with “reasonable” restrictions we will never stop, and eventually—and inevitably—we will have the confiscation of all guns. This is the slippery slope argument. But how valid is it.

Again we can use the First Amendment as an example of the fallacy of this argument. Over the course of two hundred years of American history, there have been many different restrictions on the right of free speech, but there has never been a serious attempt to abolish it completely.

Within a few years of the adoption of the Bill of Rights, the Federalists under President John Adams pushed the Sedition Act through Congress. The Sedition Act made it a crime to criticize the President or the government. (It was passed against the back-drop of the French Revolution and legitimate concerns that French agent-provocateurs might foment instability in America, and was paired with the Alien Act, but most contemporaries thought foreign dangers were widely overblown.) The Sedition Act clearly violates the First Amendment, and Adams’ political opponents (Thomas Jefferson and James Madison, and the Democratic-Republican Party) howled in outrage. Under this law, newspapers were shut down, and editors were prosecuted and imprisoned. Even many Federalists were shocked by this blatant power grab, and it contributed to the election of Thomas Jefferson in 1800, and the demise of the Federalist Party.

Throughout our history, particularly during periods of concern over foreign turmoil, the government has cracked down on speech in a manner clearly in violation of the First Amendment. There have been a number of variations of sedition laws, restrictions on certain forms of speech, and loyalty oaths that clearly punish people for opinions that should be protected under the First Amendment. Despite this, there has never been a serious attempt to allow government censorship. There has always been an ebb and flow, and now we have one of the freest and open societies in the world.

In other words, despite the fact that those wanting to restrict certain speech have succeeded, we have never started down the slippery slope to total government censorship. And despite previous restrictions we now have an extremely open version of free speech. Did you know that nude dancing and pornographic depictions of people engaging in sexual activity is protected as free speech?

If anything, despite the attempts by some to restrict free speech, we have not gone down the slippery slope, we have actually gone the other way. So why would the slippery slope work differently for the Second Amendment than it has for the First?

3.    The “Real Motive” is the total elimination of the private ownership of guns.

OK, gun right supporters say, perhaps it hasn’t happened with the First Amendment. But, some argue, the reality is that those who are now pushing for what they call “reasonable” restrictions, really want a total ban on private gun ownership.

This is an argument I’ve always enjoyed. I find it fascinating that some people think that they can read other people’s minds, see into their heart, and deduce their motives. Some people believe that despite what other people say, they know what they really mean.

There are any number of problems with this argument.

The first, and most obvious, is that it is silly. Really, conservatives? You really believe you can read minds? You really believe that you know what is in other people’s heart and soul?

A second problem is that it implies bad faith. It implies that those who say they want “reasonable” restrictions are liars, and are willing to engage in deception to get their way. Once you accuse your opponent of being deceitful, you poison the well, which makes it difficult to have an honest debate on any issue. And accusing your opponent of bad faith leaves you open to challenges of bad faith, which leads to a downward spiral. Sound familiar?

A third problem is that it imposes the views of a radical minority on the majority. There are certainly some people who support a total ban on all private ownership of guns, but it’s a tiny minority. Conservatives howl when liberals imply that every member of the Tea Party is a racist simply because a few kooks carry racist posters at a rally. The crazies, they say, don’t represent the majority. The same holds true for liberal groups and ideas.

A fourth problem is that it is, more often than not, wrong. We can look at the ebb and flow of the restrictions on the First Amendment to see that. Even those who restricted some forms of speech never attempted to eliminate all forms of speech.

We have also had, throughout our history, different levels of gun control, and there has never been a serious attempt at a total ban. During the 1920’s and the rise of the American Gangster, Congress passed a number of gun restrictions (with the support and endorsement of the NRA, it should be noted). And did they keep going? Nope. During the 1960’s Congress again enacted gun control legislation, in part to limit the ability of black nationalists to carry weapons (and again with NRA support). Were more restrictive gun control measures in the pipeline? Nope.

Author: Mike

I am a patent attorney in Lexington, Kentucky. My law firm web site is http://www.coblenzlaw.com. I ran for State Representative in 2010 and lost in the primary. Many of these posts are based on writing that I did for that election. Rather than delete it all, I decided to dump it onto the internet.

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