On Friday night, a man walked into a crowded theater in a major American metropolis. It wasn't the first time the man had been in this theater. He'd carefully scouted out hundreds of theaters around the country and had settled on this one for a very specific reason: its narrow walkways and relatively difficult to reach emergency exit doors. He had also carefully selected this precise moment in which to make his appearance, arriving during the Friday evening showing of the nation's most popular movie when the theater was guaranteed to be full. He'd even carefully selected his seat- right in the middle of a long row and more or less in the middle of the theater. With the crowd mesmerized by the showing, the man was mesmerized by his plot. At just the right moment, he lept to his feet and screamed, "FIRE!" The panic was immediate. People jumped over rows to get away from the unseen fire, landing on others who were still seated in the process. Moviegoers echoed his shouts of "FIRE" and the crowd attempted to move all at once towards the few available exits. Dozens were trampled, some fatally. Many were seriously injured. It was all a sick hoax- there was no fire.
The Supreme Court long ago considered this exact hypothetical scenario in the famous case, Schenck v. United States. Writing for the Court, Justice Holmes wrote in dictum, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." The Court was drawing a line: the First Amendment protects speech, but not all speech. False speech which poses a threat of harm can be regulated.[1]
First Amendment rights, like all other rights, can be limited. Limiting those rights requires careful thought and varying degrees of judicial scrutiny depending on the right being regulated (strict, intermediate or rational basis), but these rights are not, and cannot be, absolute.
For some reason, many conservatives do not believe the same holds true for the Second Amendment. Bill O'Reilly, for instance, wrote on his website after the Las Vegas shooting that:
This is the price of freedom. Violent nuts are allowed to roam free until they do damage, no matter how threatening they are. The Second Amendment is clear that Americans have a right to arm themselves for protection. Even the loons.
Other conservatives argue that even if Second Amendment rights could be limited, regulating guns is a waste of time and will never stop gun violence in the United States. Alternatively, they argue that perhaps some regulation would work, but it's not appropriate to "politicize" gun violence in the wake of a mass shooting and the matter is best deferred until some point in the future.
This is all wrong.
First, not only can Second Amendment rights be limited, they already are- from criminal background checks to concealed carry permits to gun registration laws and more. In the very case which established that the Second Amendment encompasses an individual right (and not a collective right, as many have argued), Justice Scalia wrote in the Court's opinion that:
Like most rights, the right secured by the Second Amendment is not unlimited.... [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
The Supreme Court has, therefore, held that Second Amendment rights are not absolute. It has not, unfortunately, outlined precisely what is required in order to limit those rights.[2] Nevertheless, it has given clear examples of "appropriate" restrictions which already exist and which can help give guidance on additional future restrictions.
Using Justice Scalia's list of acceptable restrictions from above, it should follow that any new regulations or resources which are designed to make the existing restrictions more effective stand a reasonable chance of being found Constitutional. For example, improving the background check process should not cause any Constitutional concern and may have helped prevent the Sutherland Springs church shooting on Sunday. Laws which prohibit felons from possessing firearms are, according to a study done by the New York Times, often easily circumvented or laxly enforced and far more could be done to uphold them. Additionally, if automatic weapons can be illegal as a category (and they are), then presumably outlawing things like bump stocks which are designed to make semi-automatic guns replicate the action of an automatic gun would also be Constitutional.
This isn't to suggest that gun regulation is a black and white issue. It's complicated (and likely only to become more complicated), but the idea that guns can be and are regulated is perfectly simple, and Bill O'Reilly's notion that the Second Amendment requires us to give free reign to "loons" to run around with guns is, well, loony.
Second, while it is true that gun regulation is not likely to eliminate gun violence, that's hardly the standard which should be applied. Eliminating conduct is never the benchmark for whether a certain activity should or should not be proscribed by law. Falsely shouting "fire" in a crowded theater is illegal, but the fact of its illegality does not eliminate any chance of someone falsely shouting fire. Nevertheless, the conduct is illegal and presumably Second Amendment activists would agree it should be. In fact, a law which restricts access to guns is far likelier to reduce gun violence than a law which makes it illegal to falsely shout fire in a theater. Falsely shouting fire only requires vocal cords and a desire to shout. It's impossible to take steps to stop determined individuals from engaging in such conduct but that is no reason to make the conduct legal. Regulating guns, on the other hand, can have an impact on gun violence. Indeed, most would agree that background checks, gun registration requirements, prohibiting felons from possessing guns, etc. are useful restrictions even if they are imperfectly administered today. Accepting that those regulations are helpful is an acceptance that some regulations can be effective. While creating and enforcing effective regulations may not be a simple task, anyone who asserts that no regulations can ever be effective is wasting your time.
Third, let's stop arguing that addressing gun violence is "politicizing" gun violence and let's instead just accept it as a fact. Of course gun violence is being politicized. That's precisely what should happen if by "politicized" we mean "considering how to address gun violence through political channels." It would be the height of irresponsibility to avoid discussing gun violence right after another instance of shocking gun violence. Correction: it IS the height of irresponsibility. But let's pretend for a moment that there is some mandatory period of time which must pass after a shooting before we are all allowed to discuss restrictions which could be implemented to reduce the probability of a future shooting. How long is that time period, conservatives? One month? Perfect. Then let's talk about the Las Vegas shooting. Is it one year? Great. Then let's talk about the Dallas police shooting. Five years? Let's chat about Sandy Hook Elementary School. Conservatives have conveniently created a "rule" that we should never discuss gun control right after a shooting, but if we adhere to such nonsense it appears it will never be time to discuss gun control. Time to ignore that rule and anyone who proposes it.
Finally, it's long past time that we deny the NRA the power to dictate gun policy in the United States. The NRA and the gun manufacturers it represents have made a fortune "politicizing" gun control. They spread fear and misinformation about gun control, urging people to stock up on more guns and more ammunition every time the topic is raised. Gun and ammunition sales dramatically increased when President Obama was elected, despite the fact that he did almost nothing on gun control. The stock price for Sturm Ruger and Smith & Wesson (two of the largest gun manufacturers) "increased by 700% and 450% respectively since Mr. Obama was elected." Gun and ammunition sales again spiked when it appeared Hillary Clinton would be elected (again on the premise that she would outlaw certain guns, so best to buy them now). Trump won and nothing is happening on gun control. The NRA and gun manufacturers continue to make millions while the rest of us keep shooting each other or being shot at. This is insanity.
But the NRA hasn't been satisfied with merely opposing proposed gun control. It also has been successful in implementing laws which make considering gun regulation more difficult.
For example, in 1996, the Republican led Congress "threatened to strip funding from the Centers for Disease Control and Prevention unless it stopped funding research into firearm injuries and deaths." Not only did the CDC stop researching gun violence, but almost all funding for public health studies nationwide dried up as a result. Consequently, very little gun violence research has been conducted in the United States since 1996. Think about how ridiculous this is for a moment. Faced with a growing number of mass shootings, the United States has little reliable data or studies to draw from in attempting to stop mass shootings.
The NRA and Republican efforts extend beyond the federal level and into the states. Missouri Republicans proposed a clearly unconstitutional law in 2013 that would make it a crime for federal agents to enforce federal gun laws within the state's borders. A month later, the same Republicans proposed another unconstitutional law which would make it a felony for a lawmaker in Missouri even to propose legislation about gun control. Eight states have passed unconstitutional bills stating that guns manufactured in those states are not subject to federal regulation (Montana, Idaho, Wyoming, South Dakota, Utah, Arizona, Tennessee and Alaska). This is, as O'Reilly would say, loony.
But there's more! Believe it or not, the United States has no electronic national gun registry- it's literally against the law to create one. Every episode of your favorite crime drama shows some investigator saying, "Run the trace on this gun!" And magically in every episode the investigator immediately gets all the gun information he needs- the owner, an address, the date of purchase, you name it. That doesn't happen in reality. The ATF is not allowed to have a computer searchable database of its records so instead it has to sort through thousands of boxes of paper records (or for older records, microfilm) anytime it gets a trace request. The process takes a long time, is subject to significant error, and is embarrassing in 2017. Gun traces should not resemble a 1980's library card catalog.
The Second Amendment isn't stopping us from enacting reasonable gun control. It imposes boundaries on what that gun control might look like, but today we are operating far from those boundaries and are even actively adopting laws and regulations designed to make guns more available rather than more regulated. No- the only thing actually stopping us from better gun control is our lack of desire to do something about it and our silent acquiescence whenever someone tells us that this is just the "price of liberty." We can do more. We must do more. Until we do, all we will get is gun violence. More.
[1] Fifty years later, the Court would overturn much of its Schenck ruling in Brandenburg v. Ohio, but the concept that the First Amendment has limitations when safety is involved survived (noting that the First Amendment does not protect speech which "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action"); other limitations also exist such as libel and slander laws.
[2] When the Court considers whether a government limitation of a Constitutional right is permissible, it generally analyzes the question using one of three levels of "scrutiny." "Strict scrutiny" is the most stringent level of review required by the Court, and it applies to "fundamental rights" or where the government attempts to regulate a "suspect classification" (such as race, national origin, religion, alienage and poverty). Under strict scrutiny, the government must demonstrate its proposed regulation furthers a "compelling government interest" and that the proposed regulation is the least restrictive means of accomplishing that purpose which is available. The government has the burden of proof. "Rational basis" review is the simplest of the three tests for the government to meet. The government must only show that its proposed regulation is "rationally related to a legitimate government interest." Rational basis is not usually appropriate where a fundamental right or suspect classification are in question. Finally, "intermediate scrutiny" falls in between strict scrutiny and rational basis and is used where certain protected classes are involved in the proposed regulation (such as gender). Here, the government must demonstrate that its regulation furthers an important government interest and accomplishes that purpose through means which are substantially related to that interest. The Court has not yet held which of the three levels of scrutiny would apply to the Second Amendment, but presumably it would be either intermediate or strict scrutiny. The appeals courts have largely coalesced around an intermediate scrutiny approach.