Gunfight at the Second Amendment Corral

Like it or not the Second Amendment exists and the Supreme Court has ruled that its language guarantees an individual right to bear arms.  Like it or  not , the best estimates are that 40% of US households have guns and there are perhaps 270 million guns privately owned in the country.  Like it or not, guns are not going away and even if the Supreme Court were to reverse itself and declare there is no individual right to bear arms, all the existing guns are not going away.  Like it or not, banning guns in a mass way will produce a firearms bootleg problem that will make alcohol smuggling during Prohibition look like child’s play.  Like it or not, for much of the country, guns are rooted in political culture of the United States–it’s God, guns, and the Constitution.
So what do we do after the Las Vegas killings?  There are no simple solutions even though there are the usual recitation of simple slogans that are more about political posturing in the next election than they are about real policy solutions.  We already are hearing talk from one side that we  need more gun control, with predictable opposition from the other side.  One side will say “Guns don’t kill people, people kill people” or the way to “stop a bad guy with a gun is with a good guy with a gun.”  The other side will embrace universal background checks to screen out criminals or those with mental illnesses, or will, as is now the solution de jour, a ban on bump stops for guns as a remedy.
The gun debate is complicated for two major reasons: the politics and the multifaceted nature of the problems surrounding the causes of gun violence.  The politics is about how the debate has been constitutionalized around the Second Amendment and weaving of guns within parts of the US into the very fabric of cultural identity.  Urbanites, northerners, and liberal-Democrats largely are clueless about this. Moreover, the gun debate has been defined by the NRA which has taken an absolutist position of the Second Amendment.  For many of its members, guns are the defining issue for them and they turn out to vote.  For the opposition, there is no equivalent.  The NRA has also captured the Republican Party, making guns, along with cutting taxes, the two defining issues for itself.  So long as the NRA and the Republican Party define their raison d’etat around guns, little will change in terms of the politics.
But even if the politics were to change, defining both what the problems with guns are and  what are the solutions is not easy.  Right now the media is hyperventilating over the NRA saying it could support a ban on bump stocks.  This is brilliant politics.  Banning the stocks will do little so long as assault weapons are available.  Gun manufactures no doubt love this proposal–instead of letting some people spend just a few dollars to modify a regular gun, make them spend more to buy a real assault weapon.  Moreover, the focus on bump stocks takes the political focus over other reforms, and the NRA looks outright reasonable in favoring the bump stock ban.  At best, a symbolic idea that solves nothing and which also plays well with some swing voters in 2018.
But what would actually work to curb gun violence?  This of course is complicated.  Part of the solution is understanding the underlying nature of the violence.  Yes, some of it is rooted simply in the availability of assault and other weapons and they do need regulation.  And regulation is constitutionally possible.  At no point has the Supreme Court said that reasonable regulation of some weapons is not possible.  Lower courts have upheld some regulations.  Not even in the case of the First Amendment has the Supreme Court said that free speech is absolute–time, manner, and place restrictions are possible, and not all utterances qualify as constitutionally protected speech.  There is nothing inconsistent in saying that possession of bazookas (which are arms) is unconstitutional, and the same is true for assault or automatic and semi-automatic weapons.  Such regulation might solve some problems but certainly not all.
Increased penalties for weapons use is not a solution.   There is little evidence, as I and others have show several times, that many people who commit crimes are rational actors deterred by the calculation of prison time.  Moreover, the experience and failure of mandatory minimum and three strikes laws demonstrates the futility of this approach.
The call for background checks, especially if instant and without some waiting periods, will solve only a small part of the problem, if at all. Do we screen for mental illness and past criminal behavior, for example?  When it comes to mental illness, are all who have a mental illness dangerous?   The American Psychology Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) lists hundreds of conditions that count as mental illness, with estimates that more than 42 million qualify.  To say that everyone with a mental illness is dangerous is a gross stereotype and demeaning.  Moreover, what is a mental illness?  Remember at one time the DSM listed being gay as a mental disorder.  Additionally, are all those with felony records dangerous, and what about the idea of people having paid their debt to society?  Finally, keep in mind that the Las Vegas shooter had no record of mental illness and no criminal record.  A background check would have done little to deter him.
Finally, what do we do about all the guns that are used in cases of domestic abuse, suicide,  crime, and street fights?  Yes guns make such killings and violence easier, but the underlying roots are located in alcohol and substance abuse, in problems surrounding poverty, or in cultural values about manhood, masculinity, and honor.    Decreasing the supply of guns will help, but there are underlying  socio-cultural problems at play. One hypothesis worth testing is the connection between areas that have high levels of alcohol dependency or poverty and gun violence. There may be other  correlations, but more research is needed and the NRA and the politics of guns has prevented that.
The point that is being made here is that the problems of guns are complex. The politics of guns makes solving the problem of guns impossible.  The problem of guns is in part availability of  some types of weapons and where, but it also about regulation of human behavior.  Guns do kill people, but people also kill people, and any viable solutions must disaggregate the variety of problems surrounding gun violence into viable policies that have identified problems and solutions.

The Lessons of Gun Control: It’s Congress Versus the People

Should president Obama have been surprised that the Senate rejected almost all of the gun measures despite the fact that large majorities supported some of the ideas, such as universal background checks?   Not really.  In part rejection of the gun control measures speak to the power of money in politics or  the power of a well organized group to act more effectively than unorganized public opinion.  But more specifically, the gun measure speaks to a broader and more serious problem in Washington–how  Congress has become a counter-majoritarian institution and is now functioning in ways contrary to what and how the Constitutional Framers envisioned the government to operate.

Political scientist Robert Dahl writes in A Preface to Democratic Theory how the fear of majority faction or the tyranny of the majority dominated the concerns of the constitutional framers. According to Madison in Federalist # 10, a faction was:  "a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” 

Factions threatened the public good and the rights of minorities.  Madison thought that minority factions–a group of people composing of less than a majority–could be controlled simply by the majority outvoting them.  The real problem was majority faction-the problem of the tyranny of the majority according to Alexis deTocqueville–or balancing majority rule with minority rights, that was the object of constitutional design.  The framers feared how a majority could capture hold of the American political system and use it to threat the public good or rights of others.  The constitutional solution was to break up political power and slow down the winds of political change.  Make it difficult to bring about quick political change.

To accomplish that, the Constitution devised  numerous mechanisms to break up political power.  We know these techniques–checks and balances, separation of powers, bicameralism, and federalism.  These are just the most famous of the institutional mechanisms to thwart majority rule.  But add to add two years terms for the House of Representatives, six year terms for the Senate (with no more than one-third elected every two years), and a four year term for the president and one can see how difficult it is to bring about rapid change in any election.

This is a brilliant design but somewhere along the ay Madison missed something–the power of minority factions.  He ignored or underrated how powerful a small, cohesive group could be, especially if it possessed significant resources.  In effect, a minority faction could effectively capture the government, turning it into a counter-majoritarian institution.  This is exactly what is happening now with Congress.

Public opinion polls demonstrate majority support for universal background checks for guns purchases, higher taxes on the wealthy as part of a deficit reduction solution, and same-sex marriage.  Yet despite this support on these and other issues, Congress, especially the House of Representatives, seems unwilling to act.   All this points to Congress’s counter-majoritarianism,
What is meant by counter-majoritarian? The term goes back to Alexander Bickel. A famous legal scholar from the 1950s and author of  The Least Dangerous Branch (1962).  Bickel’s book was written in reaction to the Earl Warren Supreme Court.  He was witnessing a Court that seemed willing to issue opinions that overturned acts of Congress and state legislatures, ignoring the preferences of the will of the majority in an effort to protect minority rights.  Bickel described this activity as counter-majoritarian.

Over the years Republicans and conservatives took Bickel’s comments as an indictment of judicial activism.  They loathed how the judiciary intervened in matters such as abortion, integration, and criminal due process issues such as the Miranda warnings, search and seizure, and the death penalty. The courts should stay out of what is rightly the task of elections, Congress, and the president to address.

The irony now seems to be a role reversal where Congress has become the counter-majoritarian institution and the Supreme Court the majoritarian one.  Look to the two same-sex marriage cases recently before the Supreme Court.  Despite public opinion now favoring same-sex marriage, the laws of Congress stand in the way.  The Defense of Marriage Act, as several Justices pointed out, is preventing states from changing their laws to reflect new societal conceptions of marriage.  The oral arguments in this and in the California Prop 8 case demonstrated a Court hoping that the political process would act (so that it would not have to) while at the same time recognizing that the majority process–in the case of California a ballot initiative–had broken down and the judiciary needed to act to get it working again.

But it is not simply the matter of same-sex marriage that it highlighting the role reversal for Congress and the Supreme Court.  What is really clear is how Congress was designed to be counter-majoritarian and it had become more so over time.
   
But when Congress is faulted but not reflecting public opinion or what the majority of people want in the United States, the answer is that as an institution it is not a national legislature.  The House represents 435 separate localities across the country, the Senate 50.  Congress is not reflective of national opinion because it is basically a parochial body. If this parochialism is not counter-majoritarianism, it is at least indifferent to national majority preferences.  The best sign of that in 2012 1.4 million more votes were cast for Democratic House candidates than Republican candidates.  Majority rule did not prevail.

But there are many other ways that Congress is counter-majoritarian.  The Senate filibuster allows 41 senators representing as few as 15% of the population to prevent legislation or nominations from being considered.  Individual senators can place holds on some legislation or “blue slip” judicial nominations in their home state.  In the House a single committee can block the entire body form considering legislation, and it is rare that a discharge petition is successful to force bills from committee to the floor.  Partisanship, polarization, and the pull of special interests have only exacerbated these counter-majoritarian tendencies.

Counter-majoritarian is good when it comes to protecting rights.  But the counter-majoritarianism in Congress goes beyond that. It is preventing the federal government from getting any work down, undermining the very functioning of our democracy.  Barely three months into President Obama second term he already seems like a lame duck, and it appears that time is simply being marked until the 2014 elections.  In the meantime, gun and other legislation languishes and this president, like his predecessors, is increasingly turning to executive orders to bypass Congress.  In the same way that the Supreme Court should not make policy, presidents should not be able to self-legislate.

Congress has become an anti-democratic institution incapable of functioning expect in rare circumstances.  It now stands as an impediment to progress and change.  Its anti-majoritarianism has cost it prestige, power, and legitimacy.  It is no wonder that the approval rating for cockroaches is higher than that for Congress.