As the nation embarks on a debate about how to reduce gun violence, it might be a good idea to set some ground rules. First rule: it’s useless to frame this issue in terms of constitutional rights. The meaning of the Second Amendment is a legal question that is determined by the Supreme Court. Arguing about the meaning of the Second Amendment is not going to get us anywhere, unless somebody’s argument is going to influence the Supreme Court. Anyway, liberals just look foolish and hypocritical advocating a strict textual, originalist interpretation of the Second Amendment. They don’t apply that standard when they claim that abortion and sodomy are constitutionally-protected activities. Why read another part of the Bill of Rights differently?
The good news for liberals is that even though the Supreme Court has determined that individuals have a constitutional right to own firearms, the Court left a lot of room for all kinds of regulations of that right. Nearly all of the ideas being floated for stricter control of weapons would probably be permitted under the Court’s interpretation. If some gun regulations are not permitted by the Constitution, that is going to be for the courts to decide anyway, so it is no use arguing about it. First, propose and pass whatever gun regulations people decide are appropriate, and let the courts decide if we go too far.
My second rule for improving the debate comes from the mediation community. If we’re trying to resolve a conflict, we need to ask participants to focus on their interests, rather than argue positions. Focusing on positions–whether we should or should not regulate guns more strictly–just drives people into opposing camps, and encourages them to assemble justifications for their views. If we instead try to find common interests, such as protecting the safety of children, we might have a more constructive dialogue about the most effective ways to accomplish that common goal.
Using that standard, we might have to recognize that there were parts of NRA lobbyist Wayne La Pierre’s statement on Friday that could be used to start a constructive dialogue. LaPierre did try to address the common interest we share in protecting the safety of children by proposing the ideas of installing armed guards at all schoolhouses, and also cracking down on violent video games and other media depictions of violence. A lot of people might think these are bad ideas, but if we’re going to have a constructive dialogue and debate that includes the gun-loving community–which is a sizable community–then the right way to react to the ideas LaPierre has proposed is to thank him for his contribution to resolving the problem of gun violence, engage him in a discussion about the effectiveness of his proposed strategies, and ask him whether he is willing to consider any other methods of promoting the same goal of protecting children.
That leads to my third proposed rule, which is that we should demand empirical evidence supporting any suggestion for dealing with the problem of reducing violence. So if Wayne La Pierre tells us that the only way of stopping a bad guy with a gun is to install a good guy with a gun in every school building, we should demand studies that support that suggestion. Is that really the ONLY way? What about counseling? What about reducing the bad guy’s access to the arms stockpile that his mother might have been assembling? And how effective is one armed security guard standing at the entrance to a school if the bad guy shoots him first? Still, we don’t need to rule out increased security as one possible solution to gun violence. Lots of schools already have guards and gates, and maybe we should consider beefing up some of those protections as part of the solution. But if Wayne LaPierre wants people to be open to his ideas, he needs to be open to other ideas as well. Including ideas that might keep dangerous weapons out of the wrong hands, or restrict access to high volume magazines, or require that gun owners at least pass the kind of licensing and safety tests that we demand of car owners.
Let’s get all ideas on the table, look at evidence as to how well they work, and try to solve this problem in a constructive way.
First published in the Wisconsin Law Journal, June, 2007, Alternative Dispute Resolution SectionThink back to those law school days of the Socratic Method. Or perhaps a more recent, similar memory...By Bob Weiss