I was always taught that, in order to maintain amicable relations in social settings, there were two topics to be avoided like Ebola: religion and politics. (OK … OK … technically, there’s also a third: John Boehner’s sun-tan lotion, but that’s off-topic.) I think we are now in a position to form an Unholy Trinity by adding a third item to the to-be-avoided list: gun / Second Amendment issues. But, really, we seem to be at the point that the three are really the same thing – hence my “Trinity” metaphor -- because it is becoming increasingly difficult, at least among many people, to separate religion from politics from Second Amendment issues. This circumstance is abnormal, both constitutionally and historically. It is constitutionally abnormal because, for each of the rights enshrined in the American Constitution, there is a corresponding and correlative limitation or qualification. E.g., free speech, yes, but no yelling of “Fire!” in a crowded theater (or “Movie!” in a crowded firehouse, courtesy of Woody Allen). Except perhaps for the “free exercise” right of clergy-penitent confidentiality, no right, even the most sacrosanct, is “absolutely absolute”. Historically, reasonable limitations on gun possession and usage were likewise the rule rather than the exception. Many gun owners and aficionados still have no problem with reasonable and prudent gun regulation, and we should not paint all gun owners in a common color with a common brush. But among the communicants of the Orthodox Church of the National Rifle Association, it is a matter of irreformable dogma that any limitation of any kind, however modest and reasonable, on the ownership of any kind of weapon threatens the very foundations of the American Republic.
I have neither the time nor the space for an exhaustive survey of the landscape of the restrictions on the Second Amendment that are embodied in the case law. If you would like an excellent, though even then far from exhaustive, such history, you can do no better than to read Michael Waldman’s moderate, reasoned, and intelligent The Second Amendment: A Biography , which is available in both book and Kindle form. Suffice to say that, prior to the decade of the 1980s and the rise of the National Rifle Association as an organization promoting, not only gun education and safety, but also and latterly a hyper-fundamentalist perspective on the Second Amendment, the subject of gun control and regulation was nowhere near as volatile, fraught, and dominated by extremist elements as it is today. Waldman notes that “[a]n iconic photo of Dodge City – that iconic frontier town – shows a sign planted in the middle of the main street [reading] ‘The Carrying of Fire Arms Strictly Prohibited’,” and cites Chief Justice Warren Burger, a Nixon nominee with whom no one would ever confuse Barney Frank or Bill Maher, asserting that “the idea of individual gun rights in the Constitution is a preposterous [Chief Justice Burger's word -- JRC] ‘fraud’.” Gun rights were further curtailed by Miller v. Texas, and the NRA even backed President Roosevelt’s National Firearms Act of 1934, which levied heavy taxes on the types of weapons used in the Depression-era bank-robbery epidemics, and outright prohibited the transportation of machine guns and sawed-off shotguns across state lines – measures that today would cause Wayne LaPierre, Ted Nugent, and Charlton Heston to simultaneously throw embolisms … even though Heston is dead. The Firearms Act was challenged in court, but the Supreme Court upheld its constitutionality in United States v. Miller in 1934. Writing for a unanimous Court -- !!!! --Justice James McReynolds denied that a sawed-off shotgun “at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, [and therefore] we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the military equipment or that its use could contribute to the common defense”. Miller set a precedent that would allow a Congress so inclined to classify certain weapons types as beyond the ambit of the types of weapons that could be possessed for personal defense. Of course, in today's political climate, any member of either House who actually voted for such a measure would probably sign her or his political death warrant.
But two game-changing decisions by the Supreme Court – United States v. Heller in 2008, followed by McDonald v. Chicago in 2010 – complicated the gun-control issue to a degree that participants in those previous controversies could scarcely imagine. In the Heller decision, the Court, by a 5-4 vote, asserted, not only that there is an individual right to gun ownership untethered to military service, but that that individual right is fundamental. In constitutional law, the term “fundamental right” is not merely a term of art: it has a very specific and narrowly technical meaning. Once a right has been christened as “fundamental,” that right becomes one of the supporting and load-bearing pillars in the edifice of “ordered liberty” comprising America’s constitutional culture, and as such is a defining parameter of the Nation’s legal character. Free exercise of religion is a fundamental right, so is freedom of speech, etc. Different as they are in other respects, fundamental rights share two salient features: (1) the Government may abridge fundamental rights only to achieve some “compelling governmental interest”, but even then (2) in order to be fully constitutional, the abridgement must be achieved by the “least restrictive means”. (In practice, this often further entails that any proposed abridgement of a “fundamental right” must be subject to a strict-scrutiny level of judicial review. I say "often ... subject to strict scrutiny" instead of "always ... subject to strict scrutiny" because, for any given case before the Court, the level of judicial review, being a matter of separation of powers doctrine, is always a prerogative of the Judicary.) If those two quoted phrases sound familiar, they should: they were the two criteria used, via the Religious Freedom Restoration Act (RFRA) of 1993, to assess the constitutionality of the contraceptive mandate of the Affordable Care Act, a classic case of a decision that concerned a fundamental right – in that case, “free exercise”. The Court decided that, while the Government did have a “compelling … interest” in the availability of means of contraception, that the mandate, being violative of the Greens’ religious beliefs, was not the “least restrictive means” of achieving that goal. The reason that Heller exponentially complicates the gun-control issue is because finding an individual Second Amendment right and christening that right as “fundamental” means that any restriction or abridgement of any individual’s or group’s gun rights is subject to the same two stringent criteria as the contraceptive mandate: “compelling … interest” and “least restrictive means”. Basically, individual gun rights are placed on an equal constitutional footing with freedom of religion. On that basis, it is not clear that FDR’s Firearms Act of 1934 could have been upheld.
The other game-changing decision was McDonald v. Chicago two years after Heller, in 2010. By way of cutting to the chase, we may say that the McDonald decision took the momentous step of “incorporating” the Second Amendment against the States. This has the effect of imposing the operative "infringement" clause of the Second against State governments as well as the Federal government: anything the Federal government is prohibited from doing by the Second, State governments are likewise prohibited from doing. McDonald had the same effect vis a vis the Second Amendment that the Gitlow decision of 1925 had vis a vis the First: McDonald overruled and superseded, e.g., Cruikshank. (Granted, Cruikshank was an invidious attempt to use Louisiana state gun law to essentially disarm African-American people in the wake of the infamous “Colfax massacre” of 1873, but the motivation behind Cruikshank is irrelevant for our purposes.) Incorporating the Second Amendment against the States via McDonald means that people who work for rational, reasonable, constitutionally consistent gun control – i.e., the kind of gun control that was the rule rather than the exception prior to about 1980 – can no longer adopt a State-by-State strategy, because the Supreme Court has declared the Second Amendment to embody a fundamental right to individual gun ownership, which makes it necessary for State efforts toward gun control to meet the same exacting two-criteria challenge – “compelling … interest” and “least restrictive means” – that prevail at the Federal level.
But all the foregoing begs the question of why, prior to roughly 1980, it was possible to pass reasonable, prudent, rational, moderate, and constitutionally consistent gun restrictions -- the kinds of restrictions that qualify, restrict, and hedge about all other constitutional rights ... even rights deemed fundamental -- but that for the past at-least-30 years have been virtually impossible to pass, despite horrific provocations like the Newtown, Aurora, and Gabby Gifford shootings and, at least for exhaustive background checks, around 90-percent support in the American population as a whole. You want my take on it? Funny you should ask. The gun-control debate in the United States has, at this point, virtually nothing to do with the Constitution.
Gun control legislation is all about sex.
And to answer your next question ... yes, I am quite serious. The gun control issue, at this point, is essentially cultural, not jurisprudential. Culture is in the saddle riding the law ... rather like slavery in the antebellum Nation. I had believed this for a few years, but a couple of days ago was gratified to discover that constitutional scholar Michael Waldman agrees with me. In The Second Amendment: A Biography he notes that
[i]ncreasingly, it is clear that the gun issue is not one of evidence-based public safety policy, but of culture. The rediscovery and glorification of the Second Amendment reflects that divide ... The desire to buy a gun for protection has raw emotional elements, and it certainly may reflect aspects of racial panic (especially ... after the country elects an African-American president). ... In parts of America ... having a gun was a deeply rooted cultural tradition, part of what it meant to be a man.
Waldman's reference to incipient "racial panic" engendered among some by the presence of a Black man in the White House is certainly well taken. It hearkens back to antebellum and Reconstruction fears in the South, by now part of many people's collective unconscious and by no means just in the South, of armed slaves. In that sense and to that extent, many are to this day haunted by John Brown and Harper's Ferry. But I would argue that, if anything, Waldman's allusion to the historical role of guns as being part of the male rite of passage in American culture is perhaps even more relevant, especially given the additional role that guns have played in the protection of oneself and one's community and family -- all traditionally male roles. In American culture, proficiency with a gun has historically been a hallmark, even a "metric", of a man's "manliness," his masculinity. Given the obvious Freudian and phallic overtones of guns vis a vis male identity, many -- not all by any means, but many -- men's anxiety to and hostility toward any form of gun control legislation is merely a sublimated form of what Freud probably would have called "castration anxiety". (Not for nothing is the colloquial expression "shooting blanks" often used to describe a man's reproductive potential after a vasectomy!) Gun control is a form of emasculation. So any form of gun control legislation -- any form whatsoever, however modest and reasonable -- is seen -- again, almost always on an unconscious level -- as posing the following question to (some) men: Excuse me, sir, what part of your genitalia could you reasonably and moderately and in a constitutionally consistent manner do without? The obvious answer: Absolutely none, and don't even think about trying!
The subliminal association of gun control and emasculation is also even more problematical when one considers how the cultural image of men -- husbands, fathers, lovers, etc. -- has been devalued in American culture, really ever since the early 1960s. Yes, there have been positive images of men as husbands and fathers. TV series like Father Knows Best and Leave It to Beaver hardly count, because they date mostly from the 1950s. But series like The Waltons in the 1970s did depict men as -- certainly far from perfect -- but often and even as a rule wise, gentle, temperate, and possessed of integrity. (Think "Ralph Waite" and the late "Will Geer" at this point.) But, by and large, men as husbands and fathers have been far more often depicted as lovable and well-intentioned, but bumbling and, at best, only marginally competent: harmless but hopelessly inept. Remember, it was Dick Van Dyke, as Rob Petrie, and not Mary Tyler Moore, as Laura Petrie, who tripped over the ottoman at the beginning of every episode of the old Dick Van Dyke Show in the '60s. (Ironically, this is also the cultural period when women were simply assumed to be subordinate to men in both political and domestic life. Also in the life of most religious communities.) So the period when men were seen as mostly harmless but bumbling incompetents coincides with the time when the political climate was most amenable to gun-control legislation -- the time, generally speaking, when Chief Justice Burger asserted that the idea of individual gun rights was a "fraud". Men were expected to live down to these expectations, and part of that package was suppressing the obvious sexual and phallic dimensions of gun ownership and usage: if men are indeed merely overgrown adolescents, the last thing one wants to do is put an AR-15 in their hands. Moreover, this period also runs in parallel with a time when other affirmations of masculinity were in decline: getting a job (since remaining at the same company or even in the same profession for a working lifetime was becoming more difficult); marriage and family (since marriage rates were declining, along with birth rates); various religiously derived parameters (with the decline of organized religion); etc., etc. For many men, guns became one of the few remaining instruments for defining and affirming masculinity. That suppression set the stage for what we see today as backlash expressed as gross overcompensation in the form of radical hostility toward any and all proposed gun legislation: (one more time: some, though not all) men are going to strenuous lengths to recover (what they regard as) their lost sexuality and masculinity. If Freud were still around, he probably would fulminate darkly about "the return of the repressed".
The real problem, therefore, is not constitutional but cultural: there is a scarcity, verging on complete absence, of rituals and "markers" and "metrics" whereby men are initiated into manhood, into masculinity. In fact, it would only be the mildest exaggeration to say that there are no such instruments that could serve as rites of passage. (This is not to imply in any way whatsoever that the situation is any better, or even any different, for girls / women. Western culture -- especially but not exclusively American culture -- is historically abnormal in that respect for both sexes.) At least for men, the Supreme Court only compounded the problem by codifying this state of affairs into law by ruling as it did in Heller and then proceeding, via McDonald, to levy that interpretation of the Second Amendment on the States as a guiding principle of gun-related jurisprudence. Now we have the worst of both worlds. The Second Amendment serves as a kind of cultural and psychological lightning rod, attracting, and facilitating overcompensation for, men's insecurity and anxiety about the loss of their identity as men. Guns are to many (not all) men what the blue security blanket is to Linus in Peanuts -- with the critical difference that Linus never used his security blanket to kill a couple dozen schoolkids or to slaughter movie-goers or to try to assassinate a congresswoman. Unless and until the culture evolves much more benign rituals, institutions, and rites for marking the attainment of masculinity, we will be stuck with violence, often against women, in the form of guns, domestic violence, and semi-automatic weapons being carried into Starbucks ... and churches.
Both metaphorically and literally, we will keep hearing things go Bang! in the night.
James R. Cowles