Originally published in Official Artur Davis
I am a conservative who believes that any philosophy is strengthened by reexamination. I do regard theory as a valuable measure of whether a policy has integrity, and the lawyer in me accepts that hard facts make bad law, and worse, can unfurl dangerously unintended consequences: but an ideology that can’t grasp the real-world consequences of its aims is deeply flawed. I am, it so happens, a defender of the Second Amendment who thinks that the right to own guns is privileged by some of the most explicit words contained in the Constitution. I also remember Lincoln’s admonition that a constitution is not a suicide pact that is oblivious to the ways history has reshaped us.
So, in that spirit, I acknowledge that in the last two years the gun debate has turned a corner. The slaughter of children, on top of the massacre of Sikhs in a temple, and moviegoers in a theater, and constituents at a congressional fair, demands that level of humility on the political right; arguably, it’s a corner that should have been turned earlier when bodies of inner city teenagers started piling up in morgues and assault weapons started outnumbering drug paraphernalia in crack houses.
The operative legal and moral question is how to frame a gun policy that reconciles our Constitution and the freedom of law abiding gun owners with the appalling ease of marginal, pathological drifters building a personal arsenal.
Liberals will need to concede that banning firearms altogether is undesirable as well as unconstitutional, and that prohibitionist rhetoric only aids and abets the NRA’s own absolutist stance. They will need to demonstrate a much sharper sensitivity to the fact that handguns do serve the ends of self-defense in both middle class suburbs and urban neighborhoods, and that hunting is part of the national cultural fabric: much too much of the leftwing punditry on this subject overflows with a barely disguised regional and class based contempt. In addition, advocates of stricter gun laws should drop the misleading implication that there are no meaningful barriers to gun ownership: to the contrary, they should be stressing that the Brady Bill’s waiting period and the longstanding prohibitions on gun ownership by felons or the institutionalized demonstrate pathways to strengthening public safety without shredding the liberties of law abiding gun owners.
At the same time, conservatives would do well to recognize that the fact that gun ownership is a right does not immunize it from regulation—no more than speech is shielded from defamation suits, or restrictions against inciting violence or using words to conspire to achieve a crime; no more than the free exercise of religion precludes scrutiny of whether churches are complying with the obligations of their tax exempt status, or of whether government grants to faith based institutions are being validly spent. Similarly, the roots that gun possession hold in our culture surely don’t carry more sociological sway than driving or marriage, both of which require some method of formal registration. Lastly, just as liberals ought to abandon their fictions around existing gun laws, conservatives should also admit that the existing regulations around guns have hardly marginalized gun ownership or created some unreasonable barrier to gun possession.
My own preferred approach would be to avoid outlawing classes of weapons, even the most lethal, semi-automatic versions: whether or not a hunting weapon can be distinguished from a killing machine is debatable, but even skeptics of that proposition must allow that the task of separating firearms based on their mechanical characteristics is too slippery to rely on, and too imprecise to offer gun manufacturers any predictable notice of whether they are crossing the line. But a strategy that focuses on discerning more about the humans who would own the guns (especially high impact firearms) makes sense. To be sure, constructing a licensing regime is a challenging enterprise: a firearms knowledge test would probably have had no impact on the self-taught nutjobs at work in Aurora and Newtown, much less the ex soldier in the Sikh shooting; a background check couldn’t be allowed to devolve into a profile that punishes the unemployed or the dropouts or the socially disconnected.
But I will venture an intuition that the act of qualifying for a specific license to own a high powered weapon would sift out a certain class of loner who despises any contact with authority. And as doubtful as I am that there is any specific background inquiry could have stopped some of this year’s agents of mass destruction, it is possible to construct a vetting system that, for example, searches for contact with mental health institutions that stopped short of institutionalization or legal incompetence: to be sure, there are obvious privacy risks, and the threat of unreliable details surfacing. But the inconvenient truth is that a society that digs deep into the past of applicants to work as tellers at banks, or as IT professionals at law firm, or as janitors at schools, has a humane reason for being at least as invasive before a heavy duty firearm is purchased.
As unseemly as it may be to dwell on the politics, it is entirely legitimate to say this much: the same demographic alliance that has shifted public opinion on same sex marriage—suburban professionals, ethnic minorities, millenials—are entirely prone to shift on gun policy, and are already showing signs of movement in data that Democrats as well as Republicans have ignored. The intuition that gun rights are a libertarian cause that appeals to socially liberal voters is prone to run up against a reality that explains why the ranks of pro-lifers are growing in a society otherwise trending left: the taking of innocent life tends to tug at the heart more than abstract defenses of liberty.
And that is perhaps the crux of why conservatives ought to be reassessing a hard-line defense of Second Amendment rights. If there is any singular reason why the political right has lost ground, it has less to do with the virtues or results of Obama era liberalism, and more to do with an impression that conservatism struggles to empathize with the human wreckage of failed policies. It should be morally and politically unthinkable to treat this tragedy as just another occasion to double-down on a theory.