Question

Gun control a example of a criminal justice policy that comes in conflict with constitutional protections. What is the conflict? How should it be resolved?

Answer 1

The "Debate"
Reducing the issue of gun control to "pros" and "cons" is probably the least desirable outcome of studying gun control, but it may be a very useful beginning. The pure pleasure of argument will attract some students. Other students may appreciate being asked for their opinions, rather than having to come up with a "right" answer at the outset of the discussion.
The debate used to be waged-both in classrooms and elsewhere-largely on constitutional grounds in terms of the right of individuals to keep and bear arms versus the role of government in providing for the common good. The U.S. Supreme Court has had relatively little to say about the Second Amendment, the main constitutional buttress of arguments that regulation is illegal. The amendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The grammar alone is enough to make one avoid ruling on it.

When the Supreme Court has ruled, it has been more likely to allow regulation than to prohibit it, at least at the state level. Even Daniel Polsby, a lawyer and one of the most eloquent and persuasive opponents of gun control, suggests that seeking constitutional protection under the Second Amendment is a flawed approach. He argues that a guaranteed right to bear arms under any circumstances, including those that might endanger public safety, would provide grounds for repeal of the amendment rather than a case for respecting it. Instead, Polsby argues that the best reason for opposing gun control is that "gun control laws don't work."7

The terms, but not the tenor, of the debate have changed. Some of the most persuasive of the gun control opponents employ economic arguments, using rational choice theory to demonstrate the inability of regulation to stop the flow of guns into neighborhoods where crime is the dominant employer in local labor markets.

Gun control advocates argue from a public health standpoint, noting that while guns may not cause violence, they do cause violence to be far more lethal. This "lethality," in suicide and accidents as well as homicide, is the imperative from a public health perspective for regulating guns like other deadly substances.

I recently listened to a debate, staged by a public policy school, that featured two respected figures hurling statistics at each other. They treated each other with disdain. I was appalled that this was the way in which we modeled "public affairs" for adults, let alone for young people. Despite my own bias in favor of regulation, I found myself wondering if such regulation could be effective in a society so full of discord and so lacking in civil discourse.

Opponents of regulation argue that laws are not the primary arbiter of behavior. "Rational gun control," Polsby says, "requires understanding not only the relationship between weapons and violence, but also the relationship between laws and people's behavior."8 If such laws are ineffectual, one might ask, why oppose them? On the other hand, there is surely a social cost when "bad" laws are disregarded, divert resources, or produce a false sense of security.

Others would argue that the role of law is not primarily to change behavior, but to reflect the behavioral norms that a society professes. Even when these norms conflict, the process by which they are negotiated suggests a value in accepting the outcomes.

Resolve-

Progressive Caucus Resolution on Preventing Gun Violence

Expressing the sense of the Congressional Progressive Caucus that Congress must enact greater safety requirements on guns to prevent the death and injury caused by the use of firearms;

Whereas individuals with guns injure more than 100,000 people a year and kill more than 30,000 a year including through homicides, suicides, and accidental deaths; and whereas far more Americans have been killed with guns in the U.S. than have died in all our wars combined;

Whereas America has now suffered more than 60 shooting massacres over the past 30 years, including twelve in 2012 and the recent tragedy at Sandy Hook Elementary School in which 20 first graders and six educators were shot down; and whereas America’s schools and colleges remain vulnerable without our focus on enhanced school safety.

Whereas there are minimal safety requirements on the type of weapons available for purchase by private individuals in America, including military-style assault weapons;

Whereas only federally licensed gun dealers are required by law to run background checks yet 40 percent of gun sales – six million guns a year – are sold on the secondary market through unlicensed dealers and are not subject to background checks, enabling the acquisition of guns by criminals, perpetrators of domestic violence, minors, substance abusers, and those with severe mental illnesses that are determined by a healthcare professional to be a danger to themselves or others;

Whereas persons on the U.S. government’s terrorist watch list are legally able to purchase guns through unlicensed dealers on the secondary market;

Whereas in 2011, 18 states seriously considered and two passed legislation to allow concealed weapons on school campuses in some regard; and whereas in Arizona and Wyoming people can now carry concealed weapons without any permit at all;

Whereas in 2011 the House of Representatives passed H.R. 822, the National Right-to-Carry Reciprocity Act, which allow persons to carry concealed weapons across state lines, regardless of state law;

Whereas our country continues to severely underfund the National Instant Criminal Background Check System and the Bureau of Alcohol, Tobacco, Firearms and Explosives – resulting in an incomplete background database that hasn’t expanded to all fifty states and a severe lack of resources that prevent the Bureau from conducting yearly inspections, as mandated by federal law, of all federally licensed gun dealers.

Whereas law enforcement personnel are restricted from fully tracking gun purchase, use, and sale due to the presence of the Tiahrt Amendments, making it harder for law enforcement to aggressively pursue criminals who use illegal guns and track the movement of guns used in crimes.

Whereas the explosion of gun sales in America has come at a time of a nationwide decline in mental health services with $1.6 billion in state cuts from mental health programs between 2009 and 2011;

Whereas nearly two-thirds of Americans agree that we should ban the sale of assault weapons as well as high-capacity magazines or clips that can hold 10, 30, 50, or 100 bullets at a time;

Whereas the large majority of Americans support requiring all gun buyers to pass a criminal background check, no matter where they purchase the weapon or from whom they buy it;

Resolved, That it is the sense of the Congressional Progressive Caucus that, at a minimum, greater safety requirements must be implemented to prevent the violent use of guns in America by—

1. Banning the sale of military-style assault weapons as well as high-capacity magazines or clips that can hold more than 10 bullets at a time;
2. Requiring all gun buyers to pass a criminal background check, no matter how they purchase the weapon; and,
3. Supporting the availability and funding of mental health and substance abuse treatment so all individuals who are in need of help have sufficient access to these services, and the support of enhanced mental health services for children.