Stephen
Kershnar
Marches, Guns, and Confusion
Dunkirk-Fredonia Observer
April
16, 2018
Last month (March 24th),
there was a massive anti-gun protest in Washington, D.C. and over 800 satellite
protests. It is estimated that it involved at 1.2 to 2 million people, thus,
making it one of the largest protests in U.S. history. The protests were in
part a response to the shooting in Parkland, Florida. The protesters demanded that
some adults be stripped of their right to buy or own guns (18-21 year-olds), universal
background checks on all gun sales, closing a gun show loophole, restoring the
1994 Federal Assault Weapons Ban, and a ban on high-capacity magazines.
Locally, hundreds of Fredonia middle
and high school students and Dunkirk high school students walked out of school
to support restricting people’s gun rights. The Fredonia principal, Jeffrey
Sortisio, praised the walkout. He tweeted, “Several
hundred Fredonia Middle and High School students participated in the National
School Walkout today. So proud of our students for their solemn approach to
remembering the Parkland victims.” Hundreds more local residents protested in
favor of Washington Park in Dunkirk on March 24th in favor of the
restriction. Dunkirk City Attorney Richard Morrisroe even went so far as
to blame gun owners’ culture and belief in the Second Amendment. He said, “What you’re fighting
is a cultural battle. It’s the culture of gun ownership, the culture of Second
Amendment rights.”
A
little perspective is helpful. According to Alan Reynolds of the CATO
Institute, using data from the far left Mother Jones magazine, the
number of mass-shooting deaths (unrelated to gangs, drugs, or domestic
violence) between 1982 and 2018 averaged 23 per year. He notes that this means
fewer people die from such mass shootings than die from falling or the flu.
Ditto for drowning in a bathtub. There are roughly 51 million children in
public school. Even if half of the mass-shooting deaths occurred in schools (12),
and they don’t, high school sports pose a greater risk of death than does mass
shooting.
Also, the
suggested remedies would likely have no impact on the number of random mass
shootings. Consider the attempt to strip out gun ownership rights of 18-21
year-olds. Economist John Lott argues that there were 64 U.S. mass public
shootings since 1998 and 10 were carried out by people under 21. He notes that
5 of the 10 were already too young to legally purchase guns. Hence, trampling
on the gun rights of millions of Americans rests on the claim that the 5 would
not have illegally obtained their guns anyway.
Consider next
universal background checks. Lott claims that background checks on private
transfers would not have prevented a single mass shooting. In addition, he
argues, from 2000-2015 states that had universal background checks had twice
the rate of mass public shooting as those that didn’t have the law.
Consider
last the assault weapons ban. As has been pointed out in countless places, in
the U.S., very few people are killed by rifles as opposed to handguns and
shotguns. According to the FBI, in 2016 only 3% gun homicides (374 of 11,004)
were done with a rifle and it’s likely that a significant number of these were
not assault weapons.
However,
even if the focus on mass shootings in schools were not overblown and the
proposed remedies likely unhelpful, there is the little issue of the Constitution.
In
District of Columbia v. Heller, 554
U.S. 570 (2008), the Supreme Court held that the Second Amendment protects an
individual’s right to own a gun and that this right does not depend on whether
an individual serves in a militia. This conclusion is supported by a wealth of
arguments, including the plain meaning of the language of the operative clause,
the structure of the Bill of Rights, the protection of other individual rights
in the parts of Bill of Rights that use nearly identical language (see, for
example, the First, Fourth, and Ninth
Amendments), the history of the Amendment (see, for example, English common
law), what was likely intended by those who drafted and ratified the
Constitution (consider, for example, the right to own a gun in four state
constitutions that were in place before the Constitution was ratified and the
Amendment’s drafting history), original meaning (as indicated by relevant
dictionaries), and so on.
Taking away the Second Amendment
rights of Americans age 18-21 is no more constitutional than taking away their
First or Fourth Amendment rights. Consider, for example, whether the
Constitution permits the government to deprive 21-year-olds of their right of
free speech or their right not to have their bodies or houses searched without
a warrant and probable cause. Perhaps the Second Amendment permits some of the
other proposed restrictions, but even if it does, it still remains an issue as
to whether this would decrease American freedom.
The
protesters’ unconstitutional proposal with regard to 18-21 year-old adults is
matched by the poor judgment of school leaders who greenlit the walkout. No one
seriously thinks that one of the local principals would allow a mass walkout if
the students wanted to protest the region’s out-of-control property taxes,
repeated hiring of teachers who were not stellar students in college, or New
York’s continued criminalization of marijuana. It is blackletter law that the
school authorities may not engage in viewpoint discrimination in deciding which
speech to permit.
Similarly,
local attorneys are not going to talk about the fight against the culture of
First, Fourth, or Eighth Amendments because it is unclear what this would mean
other than that many people (consider, for example, voters and judges) think these
Amendments should be followed.
Legal
rights and freedom do not give way merely because respecting them makes students
feel unsafe or even makes the population’s lives go marginally worse. This is
why it is wrong for the state to prohibit hate speech even if it is morally wrong
and makes people feel less safe. Parallel reasoning applies to gun ownership.
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