Guns and reconciliation in the Trump Era

Surely all Americans, gun owners and otherwise, grieve the loss of 17 young lives at Marjory Stoneman Douglas High School in Parkland, Florida.

The same was true after Newtown, Las Vegas, Nevada, Sutherland Springs, and the seemingly endless list of previous travesties. Little was done after those earlier crimes, however. Might this time be different?

{mosads}It seems unlikely that outrage alone will produce a different outcome this time than it did in the past. But perhaps something else will. Reconciliation might well be possible if all sides of the gun regulation debate recognize what they really disagree about and hence what they actually agree about. Were this possible, the debate could be less “existential,” less about “identity” and more about actual policy.  

Let’s start with the data. Since the Supreme Court’s 2008 decision in District of Columbia v. Heller over 40 percent of the estimated number of guns held by civilians in the world are held by American citizen, who number four percent of the world’s population. Gun death rates in the U.S. reflect that datum. Our rate is literally twenty-five times — i.e., 2,500 percent higher than — the average rate for the other advanced economies.

It is figures like these that gun control advocates unsurprisingly latch onto when they demand stricter gun laws in the wake of mass school shootings, mass nightclub shootings, mass outdoor concert shootings, mass military base shootings, and the like. And many gun rights advocates agree that these are disturbing and in need of fixing.

But oftentimes the same advocates who advocate robust responses to violence brush aside cautionary notes sounded by other Americans about constitutional liberties, cultural traditions, and the historical relevance of the Second Amendment.

This is a pity, because these liberties and traditions are very much part of the American experience — especially in the rural communities where they first originated, and where mass shootings are less common and therefore less salient than they are in the nation’s urban and suburban centers.

It is also a pity because willfully ignoring these facts encourages suspicions that “the gun issue” is less about guns than it is about urban-versus-rural identity and mutual cultural contempt.  

So what are these rights and traditions that have so long been part of American culture, and that are still cherished by many Americans? The Roberts court emphasized several in Heller.

The first is the basic right to self-defense. This was of ancient vintage even at the time that the Constitution was drafted — it has biblical antecedents and pervades the British common law that underlay what became U.S. law.

It has been understood as a near absolute right to defend oneself, one’s kin, and one’s home and place of business whenever there is a reasonable fear of mortal harm.  In these instances, the law is clear and the only issue is fundamentally what type of weapons one should be able to use in self-defense.

The second right seems more salient than ever in Trump’s America: That is the citizenry right, running from the English Bill of Rights of 1689 through our own Declaration of Independence on down to the Second Amendment, to protect itself from a tyrannical government.

To be sure, in the era of reliance on a standing military with advanced weaponry rather than local militias, the notion of taking up arms to protect ourselves from “the government” can ring anachronistic.

We are well past the days of the Whiskey Rebellion, the Coal Wars, and the Civil War. But we are a nation born of rebellion against perceived tyranny, and many Americans still take the right of protection against arbitrary government very seriously — despite the taunts they receive from those more trusting of government.

But just as there are these traditions in American history and culture, so is there a tradition of “common sense” and “common ground,” not to mention just plain “pragmatism” and “problem solving.” Surely these traditions, too, remain alive and well among Americans — even those Americans who take self-defense, opposition to tyranny, and attendant gun rights seriously.

They key to appealing to these latter traditions, surely, is to refrain from “dissing” the other traditions. Doing the latter encourages “defensiveness” among those attached to gun rights, and gives aid and comfort to those who, like the National Rifle Association, do all that they can to foment hysteria and paranoia about sinister “liberal” intentions to “take away our rights and our guns.”

Were those of us who are in favor of sensible gun regulation to adopt — and manifest — this more sensible attitude, there is no telling what useful dialogue and commonsense consensus solutions might emerge.

More robust weapons registration, background check procedures, more limited carry rights outside of the home, and “smart gun” technology might all come to be agreed upon as reasonable compromises (with some carve outs for single-shot sporting rifles, shotguns, etc.).

In effect, weapons could come to be viewed as are automobiles — generally useful, sometimes dangerous, and reasonably regulated. The key is to make guns no more about “identity politics” than are automobiles. Can we do it?

Yes, we can.

Robert Hockett is Edward Cornell Professor of Law at Cornell Law School and senior counsel, Westwood Capital, LLC. Daniel Alpert is a senior fellow and adjunct professor at Cornell Law School and a founding partner at Westwood Capital, LLC.