common sense: n. sound practical judgment that is independent of specialized knowledge, training, or the like; normal native intelligence. -via dictionary.com
Progressive Advocacy for "Commonsense" Gun Control
As I write this post in February 2013, America is embroiled in a bitter political battle over how to address recent mass shootings. The response from progressives has been to propose so-called "commonsense" legislation, which is still taking shape, but ultimately seeks to ban or phase-out private ownership of certain types of firearms and accessories which were present in the most recent instances of mass shootings. Specifically, progressives believe it is simply "commonsense" that banning private ownership of certain semi-automatic rifles and limiting magazines for semi-automatic firearms will prevent mass shootings from occurring or alternatively will limit the number of injuries and death when such events occur.Progressives are explicitly clear that "commonsense" is the standard by which they believe the Federal and State governments may and should restrict the rights of American citizens under the Second Amendment. For example, one progressive blogger opines that organizations representing gun owners believe that the enemies of gun owners are "every American who wants reasonable, commonsense measures that promote gun safety and help protect our kids." Using a major Internet search engine such as Google with the terms "common sense gun control" reveal the term is used by hundreds, if not thousands of progressives in blogs, and by progressive politicians.
Inconsistency with Science-based Doctrine; Global Warming and Childhood Vaccines as Examples
Progressives' dependence on "commonsense" as the standard by which to regulate society is disturbing within the context of civil liberties, but even more so is the reliance on "commonsense" with typical progressive policy support doctrine. For example, progressives believe that overwhelming scientific support for the notion of man-made global warming of the earth justifies government actions to limit carbon emissions. Progressives vigorously attack global warming "deniers" who rely on personal observations or anecdotes to deny the impact of global warming, or deny that global warming is a long term climate change, as opposed to temporal and random weather patterns. In the case of global warming, if citizens relied on their "commonsense" alone, hardly anyone would notice climate change, and certainly not any long term pattern. To the contrary, global warming "deniers" point out record blizzards and snow storms when they arise as "proof" that global warming concerns are unfounded. I do not offer my opinion on climate change here--it is not relevant. The point is that progressives, who often profess to advance policies based on the latest hard- or social-science revelations (hence progress), are at least consistent with that notion when it comes to climate change, i.e. science should prevail. If we do what the science tells us, and quickly, we can save the planet. "Commonsense," it seems, is not only misleading and flawed with respect to climate change, but according to progressives, will kill us all.
Besides global warming, another example of progressive doctrine in action is the ongoing debate regarding the safety of childhood vaccines vis-a-vis autism. Like global warming, the vast majority of the pediatric medical community believes that there is no link between vaccines and autism. Nonetheless, over 20% of the lay population believes there is a link. Autism advocates, who believe that progressives improperly rely on the scientific community alone, often voice their frustration about progressive dismissal of the public's "commonsense" belief of a link between vaccines and autism. Progressives believe that the science ought to dictate public policy, that the science demonstrates no link, and the "commonsense" belief in a link puts children at risk for disease and death when parents delay or forgo vaccinations.
"Commonsense" is nothing more than the will of the mob.
One can be even more provocative in the historic analysis. It was "commonsense" in Nazi-era Germany that Jews and other impure races were inferior life forms. It was "commonsense" that blacks were sub-human in the slavery-era Americas. Indeed, it was once "commonsense" that the earth was flat.
Civil rights advocates often battle "commonsense" notions as well. To many Americans it was once "commonsense" that blacks should not marry whites, or that same-sex couples should not marry (indeed, these notions persist today as "commonsense" in some regions of the US. More controversially, it is today "commonsense" to many Americans, overwhelmingly in some regions, that abortion is murder which should be criminalized.
Ultimately, it is clear that "commonsense" is nothing more than the will of the mob. The purpose of the Bill of Rights, and the ratification of federal and state constitutions more generally, is to protect minorities from the will of the mob, or more specifically, a government that obeys that will to the detriment of a minority. Again, some aspects of governance probably should and actually are controlled by the will of the majority. But other aspects of governance and policy should never be controlled by a temporal majority opinion. A constitution is not an agreement that certain fundamental rights articulated in that constitution can never be restrained or otherwise limited, but it is an agreement that something more than "commonsense" is required to sustain that restraint. Indeed, if "commonsense" and rational, scientific public policy are the same, it should only be by coincidence.
Constitutional Framework for Restraining Rights
Everyone knows that one cannot yell fire in a crowded theater, and that example is often given to prove that no constitutional right is absolute. But, perhaps dangerously, most citizens are unaware of the legal theories that lead American courts to that result. There are three tests courts apply to determine whether state restriction of a right is constitutional, and only one of these resembles the "commonsense" standard. At the lowest runs is the so-called Rational Basis Test:
Rational basis review, in U.S. constitutional law, ... simply means that the government has a legitimate reason for a law or regulation that is rationally linked to it (in other words, the connection is not a non sequitur). Rational basis is the lowest level of scrutiny that a court applies when engaging in judicial review in the United States. ... Rational basis is the default level of review; however, rational basis review does not usually apply in situations where ... a fundamental right is implicated.
In order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest.
To pass strict scrutiny, the law or policy must satisfy three tests:Put simply, if Second Amendment rights are fundamental under the US Constitution, then either intermediate or strict scrutiny is appropriate, not the "commonsense" rational basis test. In the landmark Supreme Court decision of District of Columbia v. Heller, 554 U.S. 570 (2008), the Court ruled that right to keep and bear arms was indeed a fundamental right, and that some test stricter than the rational basis test should apply, stating "If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect." Much to the chagrin of progressives, Heller is the law of the land.
1. It must be justified by a compelling governmental interest.
2. The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.
3. The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately.
Why banning semi-automatic rifles and limiting magazine sizes fail constitutional scrutiny.
Even if we suppose that intermediate scrutiny applies to Second Amendment restraints by the government, the government is burdened with showing that the restraint will actually further the supposed interest. For example in Moore v. Madigan (7th Cir. 2012) a federal court held Illinois' ban on concealed carry unconstitutional as illegal restraint of Second Amendment rights because Illinois could not demonstrate that allowing concealed carry, legal in 49 other states, would increase crime in Illinois.Magazine limitations fail intermediate scrutiny.
This standard quite easily disposes of magazine size limitations on semi-automatic weapons. Most critically, a fact of which progressives seem willfully ignorant, is that an empty magazine can be swapped on a firearm with a pre-loaded full magazine in approximately 1 second. Standard factory magazines on many pistols approach twenty rounds, with rifles in the range of 20-30. Magazines allowing doubling or tripling these numbers are available. Magazines are small metal boxes with springs inside, typically the size of a candy-bar in the case of a pistol, or slightly larger than a pack of cigarettes for a rifle. In other words, carrying more magazines is a minimal burden. Thus, if a mass shooter is somehow forced to use three magazines holding ten rounds, as opposed to one 33 round magazine, the only affect on the shooter's firepower is two pauses, each approximately a second in length. In all but the rarest of cases would these pauses provide for disarming the shooter or additional time to escape.
On the flip side, the law abiding citizen is unlikely to be attacked at a time when she would have access to additional magazines. Most likely, she will only have the number of shots available to her as are loaded in the magazine of the gun when she is attacked, probably by surprise. If multiple attackers are involved, five or ten rounds may not be enough. Attackers can plan ahead and carry multiple magazines, and even multiple firearms. On net, it is extremely difficult to envision magazine capacity restrictions saving lives.
Semi-automatic rifle bans fail intermediate scrutiny.
Mass shootings typically occur in close, confined spaces. Although rifle rounds typically fired at higher energies than pistol rounds, at close range pistol rounds are quite obviously deadly. In 2007, during the Virginia Tech Massacre, a lone shooter killed 31 people using handguns only. That fact alone suggests that if a semi-automatic rifle is unavailable, then a potential mass killer will simply use a handgun to the same affect. To my knowledge, no scientific or even anecdotal evidence suggests that survivors of mass shootings by pistols would have been more or less likely to survive if a rifle had been involved. Put simply, if a would-be mass shooter can't obtain a semi-automatic rifle because of a ban, he will be no less deadly if he obtains a pistol.
Further, I do not know why progressives would want to enact policies to "steer" mass killers to handguns either, given that handguns are infinitely more concealable on a person than a rifle. Further, especially in confined spaces, it is easier to have a rifle taken away than a pistol, and many consider a pistol easier to wield. I do not know why the recent theater shooting in Aurora, CO or the Sandy Hook shooters used rifles, other than possibly such weapons happened to be available, or that through popular culture (movies and video games) such rifles seemed like the "appropriate" weapons for the task. Either way, the personal tastes of the mentally ill do not seem to be a good basis on which to form public policy.
There is no persuasive proof that previous federal legislation limiting firearms reduced crime.
Wikipedia does an excellent job of summarizing the scientifically measured effects of the previous, now expired ban on certain semi-automatic rifles and limits on magazine capacity:
The Centers for Disease Control and Prevention studied the "assault weapon" ban and other gun control attempts, and found "insufficient evidence to determine the effectiveness of any of the firearms laws reviewed for preventing violence," noting "that insufficient evidence to determine effectiveness should not be interpreted as evidence of ineffectiveness."[8] A 2004 critical review of research on firearms by a National Research Council panel also noted that academic studies of the assault weapon ban "did not reveal any clear impacts on gun violence" and noted "due to the fact that the relative rarity with which the banned guns were used in crime before the ban ... the maximum potential effect of the ban on gun violence outcomes would be very small...."[9]In 2004, a research report submitted to the United States Department of Justice and the National Institute of Justice found that should the ban be renewed, its effects on gun violence would likely be small, and perhaps too small for reliable measurement, because rifles in general, including rifles referred to as "assault rifles" or "assault weapons", are rarely used in gun crimes.[10] That study by Christopher S. Koper, Daniel J. Woods, and Jeffrey A. Roth of the Jerry Lee Center of Criminology, University of Pennsylvania found no statistically significant evidence that either the assault weapons ban or the ban on magazines holding more than 10 rounds had reduced gun murders. However, they concluded that it was "premature to make definitive assessments of the ban's impact on gun crime," and argue that if the ban had been in effect for more than nine years, benefits might have begun to appear.[11]Research by John Lott in the 2000 second edition of More Guns, Less Crime provided the first research on state and the Federal Assault Weapon Bans.[12] The 2010 third edition provided the first empirical research on the 2004 sunset of the Federal Assault Weapon Ban.[13] Generally, the research found no impact of these bans on violent crime rates, though the third edition provided some evidence that Assault Weapon Bans slightly increased murder rates....
The Brady Center to Prevent Gun Violence examined the impact of the Assault Weapons Ban in its 2004 report, On Target: The Impact of the 1994 Federal Assault Weapon Act. Examining 1.4 million guns involved in crime, "in the five-year period before enactment of the Federal Assault Weapons Act (1990-1994), assault weapons named in the Act constituted 4.82% of the crime gun traces ATF conducted nationwide. Since the law’s enactment, however, these assault weapons have made up only 1.61% of the guns ATF has traced to crime."[15] A spokesman for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) stated that he "can in no way vouch for the validity" of the report.[16]
Conclusion
I freely admit that the efficacy (i.e. the life-saving potential) of banning certain semi-automatic rifles or magazine sizes is debatable, and in fact, America should debate these questions. But today, this debate is nearly non-existent. Instead, progressives insist that the only standard applicable to the appropriateness of their scheme is "commonsense," which is code speak for "popular opinion" or more simply, mob rule. Rather than debate the efficacy of their plans, they simply seek to demonize anyone who does not share their view of "commonsense."Reversion to mob rule is clearly not social progress by anyone's standard. I am amazed at the silence from liberal civil rights organizations and advocates who, although they may personally favor the progressive gun agenda, do not appreciate the need to protect all fundamental constitutional rights from arbitrary government limitation, even when in disagreement as to how citizens choose to use them. The rule of law in the US means this: if you don't like the constitution then change it (Americans have, several times for important issues like slavery and suffrage), or else respect the rights of others and obey it. Seems to me that any deviation from that simple, fair rule is anything but "progress."
