Textual originalists can disregard original intent - and that's a good thing.
We now have a view of the new gun control proposal that some have labeled Diane Feinstein’s Grand Plan. Grand? Feasible? Passible? That remains to be seen. What is plain and predictable is that Feinstein’s proposal illustrates the structural inadequacy of supply control policies that attempt a purely public response to an intensely private crisis.
The impulse here is the horror in Connecticut. A moment’s reflection shows that Feinstein’s plan is basically non-responsive. The main worry from Connecticut is not that an incomprehensively mad, damaged (one searches for something more here) young man, killed with an AR-15. At one level we all know that virtually any sort of firearm and a variety of other deadly weapons are easy substitutes against the helpless.
But that is a difficult thing to say in this climate and it does not satisfy people who are hurting. And that hurt is very much a driver here. The pain from Newtown is intense. Many people desperately seek something to ease that pain and affirm that our society, our culture, are not irretrievably off the rails. For those under the delusion that the state can stop imminent violent threats, Feinstein’s supply side gun control proposal will have appeal.
A friend said to me, “Well it couldn’t hurt”. And this actually advances the point. First, it actually might hurt. But that hurt is remote from what we are feeling now. It is a bundle of concerns about stormy days of public unrest; people on the margin who can operate a carbine, but not a shotgun or a handgun; civic militia values; and whether the legislation will just drive millions of the guns into the black market or provoke militant resistance. For many people, those concerns do not fit on the same table with the pain of Sandy Hook.
More important for now is that Feinstein’s proposal marks point of profound disagreement. Surely most gun owners, but perhaps many others will acknowledge that when seconds count, government is minutes away. This means that in those critical moments when violence sparks, you are on your own.
Many people resist this fact and its implications. Supply controls appeal to those people (just get rid of the guns and these crimes would stop). Supply controls they believe, can moot the need for armed self-defense. But that is a pipe dream in a country that already has 320 million guns distributed across 40 percent of households.
The progressive political class operates under a kind of moral hazard here. Their standard coin is the promise of public solutions, even for those private crises where our ancient law of self-defense emphasizes that the state is structurally incompetent. For those who need a refresher, the state loses its monopoly on legitimate violence in that window of imminence where government cannot act and people must protect themselves.
Politicians of a particular stripe will find it nearly impossible to acknowledge this basic fact. They are aligned with a gun control movement that has continuously denied the need, utility and legitimacy of armed self-defense. This crowd has the floor now and will lead the legislative charge with proposals that are really a diversion from the core issue.
There is a real danger that we will undertake what is essentially a grand charade – a policy debate grounded on the premise that 10 versus 30 round magazines (and next time revolvers versus semiautomatics) make some crucial difference in these attacks. The vitriol suggests that Feinstein’s supply control proposals are a clear and obvious fix against horrors like Sandy Hook. Ultimately we all really know that is false.
A serious debate about the precise risk would involve detailed assessment of fictitious gun free zones. This has been raised first by the NRA, so there is a good chance it will be maligned by much of the media and dismissed by self-righteous public officials. But if we are diligent and press for substance rather than symbolism, there is some chance that this issue will rise up out of the rancor.
For example, as we go through the dubious enterprise of identifying “bad guns” to ban and “good guns” to approve, someone might actually move past how guns look and consider how they function. Someone might actually ask whether the AR-15 is more deadly against unarmed people than a pump shotgun (which fires multiple projectiles designed for moving targets and can be continuously reloaded without disabling the gun) or a lever action rifle (firing projectiles far heavier and more deadly than the .22 caliber bullet of the AR-15) or the stealthy, quickly reloadable handgun (whether a revolver with speed-loaders, or 10 or 15 round pistol) or frankly any other gun used against the helpless.
The implication that modern semiautomatics are a distinctly dangerous category is a pure canard. Consider this from an 1862 report assessing Winchester’s lever-action Henry rifle:
187 shots were fired in three minutes and thirty seconds and one full fifteen shot magazine was fired in only 10.8 seconds. A total of 1,040 shots were fired and hits were made from as far away as 348 feet at an 18 inch square target with a .44 caliber 216 grain bullet [compare the .22 caliber 55 grain AR-15 round.
This was common nineteenth century technology when the Fourteenth Amendment trumped state laws denying citizens of United States the constitutional right to keep and bear arms for self-defense.
One impediment here is that the conversation about the capabilities of the full range of firearms, the conversation that reveals Feinstein’s bill as a simple diversion, is painful. It demands that we imagine and then talk about the damage a madman can inflict on the helpless with an AR-15, a pump shotgun, a handgun, a bolt action or a 150 year old lever action rifle. You don’t really want those images in your head, and certainly not after Sandy Hook.
We will have to push through this. Because beyond this barrier most will see clearly that the core issue here is the exposure of helpless people against a twisted man (or boy) with a gun… any gun. Supply controls are no answer to this problem unless you eliminate virtually all guns. Only when you fully acknowledge that it is impossible to get rid of guns in America (and that the failed attempt would make things worse by sending a hundred million guns fully into the black market) do you see the substantive emptiness and folly of Feinstein’s plan.
And this actually reveals a crucial sticking point. Some of us genuinely appreciate that it is impossible to ban guns in America. Others of us (and I believe Feinstein must be one of them) still, deep down, imagine that we might someday fulfill the supply control dreams hatched in the 1970’s and actually get rid of guns.
Indeed, if you don’t deep down believe that this is possible, the Feinstein plan is just nonsense. Because it cannot be true that the Senator is saying we want to stop mass shootings against innocents using certain semiautomatic rifles, but shootings using other semiautomatics, pumps, lever actions, revolvers, double barrels or bolt actions are ok. If your tool is supply controls, you must ban those guns too. (Gun people know this. So they will fight this proposal like it is the last battle.)
If we get this far, and find consensus that the supply control formula is dubious and the bad gun formula incoherent, we might press forward to the actual tough question that deserves our full attention. What about these episodes of pure insanity in shopping malls, college campuses and elementary schools? For adults, the idea that people must protect themselves within the window of imminence is the longstanding reality, as the modern wave of shall issue concealed carry laws acknowledge. But this approach fails for seven year-olds. And it still hurts to think about that. But that is the pain we must work through and the conversation we must have.
Senator Feinstein will get lots of opposition to her proposal: that it is an unconstitutional taking of property; that it irrationally treats semi-automatics more harshly than true machine guns; that is an unconstitutional application of the taxing power that grounds the National Firearms Act; that it attempts to ban guns in common use in violation of D.C. v. Heller; that it attempts to ban the quintessential militia weapon which seems protected even under a non-deceptive version of Justice Stevens’ dissent in Heller; that it will drive the targeted guns into the black market, and; that it will trigger militant resistance.
The worst thing though is that Feinstein’s Grand Plan obscures the core question of how to protect the 7 year old in the classroom, with tired oversold ideas that mainly serve to mask the structural state incompetence that the progressive political class cannot profitably acknowledge.