Back when I was in high school, we spoke simply of “gun control.” Congress passed “An Act to amend title 18, United States Code, to provide for better control of the interstate traffic in firearms”, more simply called the “Gun Control Act of 1968”.
Somewhere along the way, the rhetoric changed. The phrase “common sense” was added as a qualifier to gun control. No longer would we speak of gun control for the sake of control. Advocates modified their stance to argue solely for those measures which they could characterize as “common sense.”
Okay, I’m all for common sense. But many of us advocates for responsible gun ownership remain uncertain how this modifying phrase “common sense” changed the substance of the debate. Perhaps we would be better able to reach our common goal if we could understand what advocates mean when they speak of “common sense” gun control laws. To this end, I respectfully offer the thesis:
The phrase “common sense” used to qualify gun control means nothing.
For “common sense gun control” to be logically distinguished from simple “gun control” there must be a difference. Is there? Conventional wisdom is that there are over 20,000 gun control laws on the books of federal. state and municipal governments.
One refutation of my thesis could be in the form of a list of those laws—repealed, current or proposed—which fail the “common sense” qualification; e.g., 19,999 gun control laws pass the common sense test except X, which defies common sense. Somehow I doubt that gun control advocates would provide a list of any candidates for gun control laws that defy common sense.
In U.S. constitutional law the lowest standard for review is referred to as the “rational basis test.” If the law is “rationally related” to a “legitimate” government interest, whether real or hypothetical, it passes this standard. The Supreme Court found that the District of Columbia’s law, banning from the home the most preferred firearm, would fail constitutional muster under any standard of scrutiny. Would advocates of common sense gun control concede that that DC law failed the “common sense” standard?
The Heller v. DC decision was a mere 5 to 4 holding, so let’s consider another. Ms. Jamie Caetano, a homeless single mother, was convicted of defying Massachusetts absolute ban on stun guns. The Court, in a unanimous decision, reversed her conviction. Would advocates of common sense gun control concede that the Massachusetts law failed the “common sense” standard?
If advocates for “common sense” gun control can offer no example of a law which fails to meet their “common sense” qualification then I rest my case. That phrase means nothing. If the “common sense” standard advocates would offer examples that meet or fail their standard “common sense” then we might be able to discern the reasons.
For example, suppose that the standard is that SCOTUS must explicitly rule on a specific set of facts under a specific law. Under that criteria, we can say that only absolute bans on stun guns or handguns inside the home fail the “common sense” test. Would it then follow that every law will pass the “common sense” standard unless and until SCOTUS rules otherwise? Complicating liberal theology, this would imply there are ordinarily no “emanations and penumbras” in US constitutional law.
How would that rationale apply to the countless unenumerated rights generally acknowledged by Americans?
There is “no right to yell ‘Fire!’ in a crowded theater.” We’ve constantly heard. There is no SCOTUS ruling upholding the right of citizens to attend the theater unmuzzled. There is no right to undermine Congress’ authority to conscript men for military service through intemperate advocacy of draft-card burning. So, could a municipality require theater-goers to wear muzzles? May Congress pass a law forbidding the carrying of matches or lighters in public places?
Yet speech is one thing. Keeping and bearing of arms is quite another by its legal treatment. Why is the right to arms evaluated so differently from other enumerated rights such as speech, press, religion, assembly, quartering, searches, seizures, warrants and so forth. All enumerated rights — save those for arms — must meet intermediate or strict scrutiny. Arms alone are subject to the special “common sense” test.
It might be that exploring the phrase “common sense gun control” could establish some common understanding, however minuscule, that some rights to arms must be respected even by gun control advocates. We might learn what we all mean as “common sense” while becoming clearer on what we would continue to regard as nonsense.
I strongly suspect that there is no such thing as “common sense gun control” as distinct from gun control for the sake of control itself.
‘MarkPA’ is trained in economics, a life-long gun owner, NRA Instructor and Massad Ayoob graduate. He is inspired by our inalienable rights to “life, liberty and the pursuit of happiness” and holds that having the means to defend oneself and one’s community is vital to securing them.
This article originally appeared at drgo.us and is reprinted here with permission.