It will soon have been three weeks since the Las Vegas shooting massacre, but already the news cycle has moved on. All of the other issues that have been in the headlines—male sexual predation, Donald Trump’s (un)fitness for the presidency, the respective futures of the Iran nuclear agreement and the Affordable Care Act, and on and on—are undeniably important.
On the other hand, we know in our aching hearts that such carnage will happen again. At this point, it still counts as news when a man kills three people and wounds two others in Maryland, but such numbers do not make a ripple on the political scene. We know that something worse is coming—soon—but the ten percent of the population that does not want even minimal changes to our gun laws has once again silenced the other ninety percent.
As I wrote in a recent column, one of the persistent and puzzling aspects of the politics of guns in this country is the insistence by “gun rights” advocates on invoking the Second Amendment as a magical talisman, seeking to shut down all talk of gun control by asserting that such laws would violate the Constitution.
That is not true, and it never was. As Michael Dorf reminds us in his most recent column on Verdict, the controlling Supreme Court opinion says that the Second Amendment only applies to firearms in “common use,” which means that many different types of guns could be banned outright (as machine guns are now).
Moreover, Dorf pointed out that the Supreme Court also held that “the Second Amendment protects a right of individuals to possess firearms in their homes for their personal use for self-defense.” That is, even the right of people to hold that limited category of weapons is limited to guns held in their homes to defend their homes and the people in them.
Substantial numbers of constitutional scholars (including Professor Dorf) believe that the Supreme Court’s 5-4 decision was wrong even on that more limited holding, and I am among the dissenters as well. Even so, the Constitution has never been interpreted in a way that would give people the right to have firearms in their possession anywhere they want and for whatever reason they want.
That is why I wrote in my column that the Second Amendment is simply not relevant to the US gun debate. None of the proposals to limit gun purchases, to limit (or even ban) carrying weapons in public, to require background checks, to forbid gun ownership by domestic abusers, to limit magazine capacities, or any other proposal on the horizon even comes close to bumping up against the Second Amendment. It would be like a person on a bicycle being told that the speed limit is 75 miles per hour: possibly relevant in extreme circumstances, but almost never a plausible constraint.
That does not mean, of course, that gun control in the US will happen soon, or at all. Simply saying that the Constitution would not forbid gun control laws does not say that those laws will be enacted. Legislatures decide whether to pass laws within constitutional limits, but it is impossible under current circumstances to imagine even a Democratic-majority Congress passing anything more than bans on assault weapons and perhaps large-capacity magazines—and both of those would be heavy legislative lifts.
The more interesting question is whether it is simply too late to regulate guns, because the country is already awash in firearms, and because we now know that every mass shooting results in a surge of gun purchases by people who are convinced that Congress might suddenly ban guns.
These facts raise two questions. First, does the already-enormous number of guns owned by Americans mean that we are doomed to live with gun violence forever, no matter what a future Congress might do?
Second, and more provocatively, does the concentration of guns in the hands of Donald Trump’s supporters raise any special concerns about attempts to impeach the president?
The answers to these questions are “no” and “sort of, but those concerns should never cause Congress to refuse to pursue impeachment.”
The Concentration of Gun Ownership in America
One of the more shocking statistics that has begun to show up in news reports about gun violence is that there are more guns in private hands in the United States than there are people. Put differently, the average person in this country owns more than one gun.
That fact might lead to the conclusion that gun control legislation would be too little too late, even if we passed much stronger laws than we are ever likely to pass. After all, if everyone currently has at least one gun and can hold it in their house for self-defense purposes, then the government could not do anything to reduce gun ownership.
If ever there were a case where computing an average tells a misleading story, however, this is it. It turns out that the number of gun-owning households has been declining for decades, even as total gun ownership has risen.
This means that some people are heavily armed, whereas others have exercised their right not to keep and bear arms. As The Washington Post reported recently: “Just 3 percent of American adults own half of the nation’s firearms.” In fact, only 19 percent of American adults own the other half of the guns, while the remaining 78 percent do not own guns at all. The article notes that there is some disagreement among surveys about the precise numbers, but there is no question that gun owners are a distinct numerical minority in this country.
Why is that significant? First, it means that the surges in gun purchases that we see after a highly publicized shooting event must be a matter of current gun owners buying still more guns. Thinking that the government is going to be taken over by gun-hating lefties, they add to their arsenals.
Having a tiny number of people sitting on huge stockpiles of weapons is problematic in other ways, as I will discuss momentarily, but it has a significant upside. Put simply, there are people who currently do not own guns who might choose at some point to buy them to commit murder, or suicide, or for other illicit purposes, and serious gun control could stop them.
Moreover, if a current gun owner commits a felony, federal law holds that (absent action by the home state of the offender), the offender may never again possess “any firearm or ammunition.” (Again, the Second Amendment is no barrier to this law.)
So, if a person who currently holds a huge number of guns (the average being 17 guns for the 3 percent who own half the guns) actually uses one of those guns to commit a felony, that person must forfeit ownership of his guns.
In short, saying that there are already a large number of guns “in circulation” misstates the reality. A huge number of guns are sitting in clusters in a small number of houses and bunkers. Even if there were a surge of gun purchases in the face of a serious legislative effort to control guns, a large portion of that would be merely a matter of the most gun-loving people adding to their arsenals.
It is true that some number of current non-owners might become spooked by propaganda and decide to buy a gun, but even with that kind of propaganda already happening, three-fourths of the population has still not bought a gun. Keeping guns out of the hands of those who might later become tempted to buy a gun to maim or kill should be a high priority.
The Citizen Uprising Problem
When I wrote above that any surge in gun sales preceding the enactment of gun control would be “merely” gun-lovers buying more guns and ammunition, I was saying that such additional gun purchases would be highly unlikely to add to any of the problems with guns in this country. A person with 19 guns is no more nor less likely to commit suicide than someone with 17 guns, and he is also no more likely to rob a bank or commit a mass shooting than he was before he bought additional guns.
Even so, there is the possibility that the passage of serious (or even mild, given the absolutist atmosphere that gun activists have fomented) gun control legislation could cause these people to commit a very different kind of crime.
Although the Supreme Court has never credited the “citizen uprising” theory of the Second Amendment, there are plenty of people who think that their arsenals are a bulwark against a tyrannical government. How they think they would win against the weaponry of the modern military is anyone’s guess, of course, but that is beside the point here.
Would it be likely that “the Second Amendment people,” as then-candidate Trump once described them, would take Trump’s implied advice and violently rebel against a Congress that was planning to pass meaningful gun regulations?
We do know that states including Connecticut and New York tightened their gun-control laws after the Sandy Hook massacre, yet there were no armed citizen militias marching on Hartford and Albany, battling against state police or the military. Even so, it is possible that a sufficiently frantic public-relations campaign by the NRA or others in response to national legislation could lead to some violence.
That possibility would certainly provide cause for the members of any such rebellion to lose their rights to own guns. Before we even reached that point, however, there would be a real possibility of one or more armed standoffs around the country as self-styled patriots find themselves outmatched by real soldiers and trained officers.
All of which means that anyone who wishes to tighten gun laws would be wise to take into account the possibility of armed resistance. That is not a reason not to proceed, but it is obviously true that the people who have the most guns are the ones who could cause the most problems.
The Impeachment Question
As a related matter, what if Congress did not decide to pass gun control legislation, but it did decide to impeach Trump? Here, the concentration of gun ownership is doubly important, because not only do three percent of the people own half the guns, but those people are largely Trump’s most fervent supporters (in part because he has taken their side in the gun debate).
In The New Yorker, Robin Wright recently described a “new civil war” that might be fought in the United States over the next few years. In a related Washington Post column, Richard Cohen described this as a war “not of armies marching across fields, but of civil unrest — a lot of angry people causing a lot of mayhem.”
Similarly, back at the 100-day mark of Trump’s presidency, I wrote a Verdict column in which I imagined what would have happened if Trump had lost in November 2016. I described “[a]rmed standoffs and brawls in Washington and other major cities” in that alternative universe.
The fact is that if such a thing is going to happen, the people who would choose to become violent are already well armed. That is not to say that even a sizable minority of gun owners would engage in violence, but it only takes a few scattered dozens of violent people in various places to make America a truly scary place.
Again, however, that is not a reason to allow them to use the threat of force to get their way. If this or the next Congress decides that Trump has committed impeachable offenses, then it should impeach him, convict him, and remove him from office. If this or the next Congress decides that enhanced gun control laws would be in the public interest, then it should enact such laws.
Again, we do know that there is a very small number of Americans who own a lot of weapons. We should proceed in full awareness of that fact, but that reality cannot become the worst kind of heckler’s veto, or we will have become a country governed by a fringe group of people who are willing to make threats and possibly commit acts of violence to replace the rule of law with rule by intimidation.
Moreover, if a current gun owner commits a felony, federal law holds that (absent action by the home state of the offender), the offender may never again possess “any firearm or ammunition.” (Again, the Second Amendment is no barrier to this law.)
It might not be a barrier, but especially with the breadth of the definition of “felony,” something should be.
The only barrier to tyrants is resistance. Criminals don’t obey the law, as the federal government has amply demonstrated.
Shall not be infringed
read…and understand the loyal opposition
Do you actually think people answer honestly when asked, “Do you own any guns, and if so, how many?”
In a country where there are people like you who might at some point get the power to attempt to take them away?
If they do, they are the same people who believed the polls showing Hillary would win the EC by a landslide.
The Republican-controlled Congress will only impeach Trump if they feel that their rabid base is behind them and not going to punish them in the primaries. For that to be true, Trump would have to be impeached for something truly heinous with overwhelming evidence. Even if everything in the Steel dossier were proven true, I’m not convinced impeachment proceedings would begin.
All attempts to estimate gun ownership and proliferation in the US is plagued by problems.
The first being how they attempt to do so. Even in States with registration, the State governments will readily tell you that registration is lax. And one method they use to estimate proliferation is using firearms suicide numbers.
Attempts to survey gun ownership are plagued by the fact that many gun owners will readily lie in a survey. They won’t answer truthfully if they own firearms or how many they do own. So to say the number of gun owning households has been declining isn’t accurate. After Sandy Hook, many of those who ran out and bought firearms were first-time buyers according to the sellers.
Whom you presume will be willing to fire upon their fellow citizens. You’d probably be surprised how many soldiers and officers would refuse such orders.
You also presume that citizens are arming up to take down the Federal government, while forgetting that within the last 100 years armed Americans have successfully fought off tyranny at lower levels. Google the Battle of Athens, Tennessee, wherein citizens armed up to defend the integrity of a local election from county officials who sought to steal the election from the people.
Back in 2013 in Oak Harbor, WA, armed citizens showed up to a city council meeting during discussions of allowing concealed carry in the city’s parks, showing that the citizens were fully in support of the idea.
Too many people act like the claim the 2nd Amendment is a check on the Federal government means we must be willing to go toe-to-toe against the US Army and Marines. And that since we obviously wouldn’t stand a chance, any claim against tyranny is moot. Except public perception tends to be a better deterrent than anything else.
How would it look to have our military firing upon groups of armed US citizens, regardless of the reason? I’ll tell you how that looks. That was not just the Boston Massacre, that was actually the Civil Rights movement, in which US citizens protesting for basic constitutional rights were met with violence by other citizens and law enforcement authorities. The perception of that was one of the greater driving forces to legal change in the United States.
Rather than 3 percent of gun owners owning half of all firearms, it is far more likely the case that people are lying to NORC and other such surveys about gun ownership.
I wouldn’t tell liberal researchers whether I owned a firearm and I’m hardly alone on that.
As far as no one marching on Albany or Hartford? They aren’t complying with the dim witted legislation either.
“Although the Supreme Court has never credited the ‘citizen uprising’ theory of the Second Amendment, there are plenty of people who think that their arsenals are a bulwark against a tyrannical government. How they think
they would win against the weaponry of the modern military is anyone’s guess, of course, but that is beside the point here.”
Is it, really? First, the SCOTUS doesn’t have to put its imprimatur on the ‘theory’ – it is spelled out, black-letter, in the Declaration of Independence, which is the founding document that set in place the First Principles of this nation. The Constitution exists in part to implement those First Principles. The right and duty of the people “to throw off such Government” is clearly elucidated, and the notion that a right isn’t a right until the SCOTUS says it is, is fatally flawed. The circumstances that would warrant the exercise of this right is left up to the people, not the Supreme Court.
“Before we even reached that point, however, there would be a real possibility of one or more armed standoffs around the country as self-styled patriots find themselves outmatched by real soldiers and trained officers.”
Oh, you mean like the 3% of colonials who took up arms against the British crown? Like THAT?
“We do know that states including Connecticut and New York tightened their gun-control laws after the Sandy Hook massacre, yet there were no armed citizen militias marching on Hartford and Albany, battling against state
police or the military.”
No, instead the vast majority of those gun owners simply ignored the new laws, and the states have no intention of triggering such a confrontation by strenuous enforcement. At any rate, as those laws eventually face certiorary (which they inevitably will), they will be severely curtailed or eliminated.
As to impeachment leading to an armed rebellion, there is only one logical conclusion:
Bogeyman and BS both begin with a “B”.
TOTAL BOVINE SCATOLIGY SCRIPTOLIGY! WHAT planet did you dream this crap up on? you are as much a law professor as obozo the clown has been,was. BE SURE AND DIS APPROVE THIS
See: https://www.ammoland.com/2017/10/law-professor-claims-second-amendment-irrelevant-to-gun-debate/#axzz4wIUUm2AP
“How they think they would win against the weaponry of the modern military is anyone’s guess…”
Like in Yugoslavia, Lybia, Afghanistan, Vietnam, Yemen, Nigeria, Ukraine etc.
“…, it is possible that a sufficiently frantic public-relations campaign by the NRA or others in response to national legislation could lead to some violence.” I think you have that thinking backwards. It is not the response that might lead to violence, it is the provocation of such legislation upon an enumerated right that would be the trigger for such a response. Without the provocation, there would be no response or conflict.
Further, you seem to imagine in your limited view on the subject that potential conflict with gun owners and 2nd Amendment advocates would be a direct confrontation with guns ablaze. I submit to you that there are other means to carry out such a struggle, many which will not involve a gun. Your argument about the ‘uprising problem’ is a false one. Gun owners (many veterans and former law enforcement) know well they cannot directly compete with our modern military. Your suggestion that we might imagine we could win such a direct conflict with the military is further evidence of your own warped view of the community that you’ve chosen to mock.
Also, you might consider that when called, many of the leadership and rank and file of the military may well choose to be on the side of a constitutional representative republic, rather than blindly follow the orders of some tyrannical regime.
Currently, the 2nd Amendment is the ONLY enumerated right that many MUST seek permission to exercise. Think about that mr. legal scholar.
In short, F-off.
First of Shall NOT be Infringed! Any law making is harder or impossible to have a firearm is an infringement. Yes felons do have to give up there rights like the right to vote, the 2nd, and others. But a felon can regain there rights thru a difficult possess. Mechine guns are not band you can go and buy one now they are just really expensive and it must be manufactured before 1986. You just can not buy a new manufactured one. False information like this is what is dividing this country.
…buster, you are delusional.
“”the Constitution has never been interpreted in a way that would give
people the right to have firearms in their possession anywhere they want
and for whatever reason they want.””
We can stop right there.
The Bill of Rights “gives” nothing. It affirms inalienable rights and it shackles government. Period.
It was never in need of interpretation as Justice Taney made abundantly clear in 1857 when he grudgingly opined “”It would give to persons of the negro race, …the right to enter every other State whenever they pleased, …to sojourn there as long as they pleased, to go where they pleased …the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.””
Sometimes this is just too easy.
This is why we have courts that support legal concepts like Asset Forfeiture without charging the suspect, warrantless wiretaps, waterboarding, and a government full of perverts and pedophiles that constantly get let off the hook–hecause boot-licking statists like Mr.Buchanan are allowed to brainwash the lawyers, journalists, and future judges of America in his Neo-Marxist echo-chamber indoctrination center with this sort of absurd, Post-Modernist, Crypto-Marxist shenanigans.
Mr.Buchanan shouldn’t be teaching in a major university and having his work featured on a site like Justia–he should be facing prosecution under 18 U.S. Code Chapter 115, to the fullest extent of the law.
Also, it should be pointed out that among the many factual inaccuracies in his article, he is also wrong about “machine guns”. They are not “outright banned” in the US. They are 100% legal to own in almost every state, and under Federal law. You DO have to do a LOT of paperwork, undergo a background check that takes about 9 months, and the cost to buy them has become astronomical (a full-auto, legally transferrable M-16 starts at about $10,000 these days), but these “Class 3 Weapons” are completely legal to own and use in the US. According to a FOIA request response by the BATFE in March of 2016, there are just under 500,000 legally registered Automatic Weapons legally in the hands of US citizens…
http://www.nfatca.org/pubs/MG_Count_FOIA_2016.pdf
The US Constitution does not purport to “give” the people rights. A scholar should know this. The Second Amendment was written at the behest of the anti-federalists, but the defenders of the document stated is was not needed (along with the rest of the Bill of Rights) because the federal government only possessed enumerated powers.
The letters of marque mentioned in the US Constitution were issued to private persons who owned weapons of war. It was presumed that private persons would own weapons of war and it was not considered a federal issue.
If I were entering into a contract, the original interpretation would hold, not later interpretations. The defenders of the US Constitution at the time of ratification are of far more importance than the later interpreters. Especially those in the employ of the creature of the document.
As for not being able to win: Your imperialists (terrorists, really) failed in Korea, Vietnam, Iraq, Afghanistan. They would fail here, as well. They’ve failed with the drug war, as they failed with alcohol prohibition (in spite of an amendment making it legal, unlike the drug war), and are failing with immigration control. Prohibition only works to the extent that a populace is servile.