We Aren’t Supposed to Ask Criminals which Laws they Want to Obey

Once again, America has been shaken by a horrible tragedy involving guns. This time, the mass shooting occurred near the University of California at Santa Barbara, (which happens to be my alma mater). There are some new wrinkles to the basic plot line, but the aftermath has played out about the same as the last 80 or so horrible tragedies involving guns. We are having a debate about guns.

And we should. Those who say that we should “not politicize the tragedy” misunderstand, fundamentally, what politics are for. We are supposed to use our political process to make changes to our laws that make our society safer, stronger, more compassionate, and (as the Constitution says) “more perfect.” And in the process of forming a more perfect union, everything has to be on the table. And that means gun laws. It does not violate the Second Amendment to pass laws about who can carry what weapon where, or about how guns and other lethal weapons should be sold.

Comparable regulations existed in the Founding generation and have existed, in some form or another, ever since. Both common law and Supreme Court precedent support such measures as background checks, gun registration, required licensing, and limitations on what kinds of guns can be carried. Justice Scalia, in the recent DC v. Heller decision, goes out of his way to clarify that many kinds of regulations are permitted for states and municipalities that want to enact them.

“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”–Justice Antonin Scalia, DC v. Heller (2008)

This does not mean that these sorts of regulations are good ideas. It means that they are Constitutional ideas—that the Supreme Law of the Land does not prevent us from trying them. It is up to us to debate their merits. And the issue is more complicated than most bumper stickers suggest.

The extreme positions—that we can solve the problem of mass shootings by restricting access to firearms, or that these tragedies have nothing to do with guns or how easy it is to get them—are both (as extreme positions usually are) simplistic and wrong. The answer almost certainly lies between these two extremes. We may well be able to make some progress toward controlling (but cannot completely eliminate) America’s astronomical levels of gun violence by regulating (but not completely controlling) the ways that firearms are sold, stored, and carried.

The fact that any gun law that we pass will be disobeyed cannot be an argument against passing gun laws.
Michael Austin
There are good arguments for this position. There are also good arguments against it. But one of the most common arguments against it — that criminals will not obey the law and will get guns anyway — shifts the debate in a way that all Americans, of any political persuasion, should reject immediately. Rather than making this a debate about guns, it makes it a debate about whether or not we will be a society of laws.

See, the thing about laws is that we don’t ask criminals whether or not they want to obey them. We make them based on our best understanding of the needs of our communities, and then we enforce them. Pretty much every law that exists either requires people to do things that some people don’t want to do, or it proscribes behaviors that some people do want to do. That is why we need laws. It is not illegal, for example, to drink turpentine.

So the fact that any gun law that we pass will be disobeyed cannot be an argument against passing gun laws. This is not how the rule of law works. Yes, some people will break laws about registration, and others will buy guns in ways that bypass background checks. But if we enforce these laws vigorously, we will have opportunities to arrest people, deny them the right to carry firearms, or put them in jail for reasons that do not involve killing other people.

This is how the rule of law works.

We have done it before. Between 1980 and 2014 (which encompasses almost all gun-related mass shootings in US history), drunk driving deaths in the United States have been cut in half and then cut in half again. This did not happen by accident. Under some pressure from the federal government, states passed tough laws against drunk driving and then set up checkpoints, suspended licenses, put people in jail, and generally criminalized dangerous behaviors before they resulted in somebody else’s death.

Could the same kinds of programs work for gun deaths? I don’t know. But we have a right to try them and find out. And the fact that criminals won’t obey the laws is not an argument against trying them; it is, rather, the whole point.