Las Vegas is not the ‘price of freedom,’ it’s the consequence

Everyone knows the drill.

After every massacre perpetrated with firearms and horrific enough to grab national attention — and, these days, a tragically large number must die before the entire nation takes notice — two things happen. People favoring more stringent gun controls accuse opponents of shilling for the National Rifle Association and the gun industry, and people opposing more stringent gun controls accuse their opponents of shredding the Second Amendment.

{mosads}By the time the heated debate dies down, there will have been very little positive change. In fact, fundamental change actually is impossible, for two reasons.

First, our current laws will not permit changes that would substantially diminish the problem of mass murder, and, secondly, even if our laws presented no obstacle, the presence in the U.S. of more than 300 million firearms in private hands would itself prove to be an insurmountable barrier to positive change.

After Las Vegas, those who favor more stringent gun controls (many of whom are affiliated with the Democratic Party) have advocated what are by now quite familiar proposals. These include universal background checks for all gun purchases; barring persons who have committed acts of domestic abuse from acquiring firearms; and maintaining regulations that make it difficult to acquire silencers for firearms.

It may also turn out that the Las Vegas shooter used either an illegal fully automatic weapon or a device that gives a legal semi-automatic weapon an accelerated rate-of-fire. There will therefore be proposals to tighten prohibitions against fully automatic weapons and to prohibit devices that accelerate the rate-of-fire of semi-automatic weapons.

News reports indicate that the Las Vegas shooter did, in fact, pass several background checks. He had almost no police record, and he had never been convicted of domestic abuse. He did not use a silencer. And experts have stated that it is “very easy” to convert a legal semi-automatic rifle into an illegal fully automatic one. So, if someone plans to massacre multitudes, we might expect that person to accomplish that “very easy” conversion.

Thus, even if all the current proposals to strengthen gun controls had been enacted before the Las Vegas slaughter, they probably would not have prevented it. I am not arguing that those proposals should not be enacted into law — but it does follow that, even if they are adopted, we should expect other mass murders in the future. Making it more difficult to perpetrate such crimes is a good thing, but it is not the same thing as eliminating such crimes.

Those who oppose proposals to strengthen gun controls (many of whom are affiliated with the Republican Party) emphasize that the proposals of gun control advocates will never eliminate mass murders. This is important because, in the minds of many of those opposing more gun controls, the inevitability of future mass murders suggests that the people who want to “control” guns ultimately want to “eliminate” guns.

After all, if I try to solve a serious problem with half-measures that never prove completely effective, doesn’t that trial-and-error experiment provide strong evidence that I should go to the very root of the problem?

Obviously, if there were no firearms in the U.S., no one in the U.S. would be killed by firearms. Many people who own firearms suspect that the inevitable failure of the gun control proposals currently on offer must lead to a demand to prohibit private ownership of firearms. And so, fearing to step onto a slippery slope, they resist what may be reasonable proposals to at least decrease the amount of gun violence in the U.S.

Again, it cannot be denied that the elimination of firearms would necessarily eliminate firearm deaths. But it also cannot be denied that our laws, and the abundance of firearms already in private hands, make it both legally and practically impossible to eliminate firearms in the U.S.

I have argued elsewhere that the Second Amendment does not itself grant any right of the people “to keep and bear arms;” rather it bars the federal government from infringing any such right granted by the laws of a state.

Under either interpretation, the federal government lacks authority to prohibit the private ownership of firearms. So, the only definitive solution to the scourge of gun violence — the elimination of all guns from the U.S. — cannot be accomplished by federal action. (The Constitution could be amended to authorize the federal government to more closely regulate and even prohibit private ownership of firearms, but such an amendment is currently politically unattainable.)

Moreover, putting the law aside, it would be impossible as a practical matter to eliminate the more than 300 million firearms in the U.S. today. How could such an undertaking be accomplished, particularly when most of the people possessing those weapons would be reluctant to cooperate with the government? Would government agents go house-to-house, searching for weapons? I do not believe it could be done.

Conservative commentator Bill O’Reilly has said that mass shootings are “the price of freedom.” That is wrong. The price of freedom is the blood and treasure that have been sacrificed in our history to protect our freedom. Rather, mass shootings are among the consequences of freedom. When people are free to act, some will do evil. Las Vegas will not be the last of such evil.

David E. Weisberg is an attorney and a member of the New York State bar. His scholarly papers on constitutional law are published on the Social Science Research Network.