On Gun Control, We Keep Asking The Wrong Question

Among the more predictable political rhythms in this country is the Second Amendment Two-Step: First there is a mass shooting or other horrific gun crime, followed by a proliferation of pontification promoting various bits of gun control legislation, all of which decry gun violence and promise to end such violence if only Americans would see the light and allow "common sense" gun control.

In the wake of two mass shootings within a single day, one in El Paso, Texas, and one Dayton, Ohio, America is dancing the Second Amendment Two-Step with the music cranked up to eleven. Self-styled "conservative" commentators such as Mona Charen have come out advocating banning certain types of guns purely for cosmetic reasons. At the same time, Democrats such as Senator Chuck Schumer have reliably excoriated Republicans for proposing solutions that are not nearly adequate to the moment or the presumptive "need".

Even alt-media personalities such as cerebral conservative Ben Shapiro expressed support for "Red Flag" laws which temporarily revoke a person's right to keep and bear arms:

Ben Shapiro @benshapiro

Red flag laws are a good idea, but they also rely on a measure of public trust and assumption of good faith by your neighbors. Lack of that trust and good faith is being demonstrated daily.

Not to be outdone, enthusiastic pro-Trump supporter and host of the YourVoice America Internet talk show Bill Mitchell defended the judicial process ensconced in such laws:

One one level, the reflex is understandable: in the wake of tragedy, it is only natural to seek solutions, and it is the reflexive position of every politician to propose a political solution to every problem. Senators and Congressmen will forever respond to crisis by proposing legislation for one very simple reason: that is what we elect them to do.

However, no amount of good intention is sufficient to guarantee the reflex will produce good law. It is far more likely such reflex will produce bad law (case in point: the abysmally un-Constitutional Patriot Act, passed hurriedly in the wake of the 9/11 terrorist attacks). In the aftermath of tragedy, therefore, it behooves us all to take a moment to seriously consider what would constitute "good" law.

In the aftermath of tragedy is when we especially should look to the Constitution, look to the Bill of Rights contained therein as its first ten amendments, and consider seriously what government is and is not empowered to do. If we desire good law, we must begin with the Constitution. If we wish to enact good laws, we must take care not to enact laws which contradict the Constitution and violate even one of its strictures. If we hope to design good law, we must ask ourselves the right questions about the law, and the Constitution.

When discussing the law, there can be no doubt that the Constitution is the supreme Law of the United States, for that is explicitly proclaimed in Article 6. The direct consequence of this is, as Chief Justice John Marshall observed so saliently in Marbury v Madison (5 US 137 (1803)), "...an act of the Legislature repugnant to the Constitution is void." The Congress is not merely prohibited from passing a law which contradicts the Constitution, it is legally impossible for it to do so--any such contradiction immediately nullifies such a law and renders it void.

Thus, good law necessarily is law which is in keeping with the powers and duties assigned to government, and which does not reach beyond those powers and duties. Marshall's insight in Marbury is, in this regard, merely a restatement of the language of the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 

If the Constitution does not empower the United States government to do a thing, the government may not arrogate to itself the power to do that thing.

Thus, when we ask "What constitutes 'common-sense' legislation on guns?" we are asking the wrong question. That is merely a philosophical debating point, and has little actual relevance to the debate at hand, which is effecting legislation on guns.

The question we need to ask is "What legislation is Congress authorized to pass on guns?" This is directly relevant, directly applicable. There is little point to waxing rhetorical about "common-sense" legislation if Congress lacks the authority to enact such legislation. There is no good purpose served by dwelling on measures the Constitution does not permit Congress to pass.

Are "Red Flag" laws Constitutional? Certainly Democrats think so, and so do a great many Republicans. Senator Marco Rubio expressed support for such laws, echoing support offered up by President Trump for the measures:

Marco Rubio @marcorubio

Our “Red Flag” proposal is the best path forward. Unlike some of the other ideas out there: - It can pass - ⁦@POTUS⁩ would sign it; & - It could actually stop the next attack #Sayfie #FlaPol

washingtonpost.comTrump’s openness to extensive background checks for gun buys draws warning from NRANRA chief executive Wayne LaPierre spoke with Trump on Tuesday and told him such a move would not be popular among the president’s supporters.

Does bipartisan support amount to Constitutionality? Hardly. The number of laws invalidated by the Supreme Court since the Marbury decision attest to that.

Are "Red Flag" laws Constitutional? Consider the basic structure of these laws. As described by the legacy news media, the prototypical Red Flag law, also called an "Extreme Risk Protection Order" (ERPO) works as follows:

"Red flag" laws allow courts to issue orders to temporarily confiscate the firearms of individuals deemed to be a risk to others or themselves. 

Depending on the state, ERPO laws allow family members and law enforcement to ask a state court judge to issue an order that confiscates the guns of an individual who they believe poses a threat to their safety. ERPO petitioners must present evidence to the court on why the individual poses a threat to others, as well as to himself or herself.

What is the Constitutional foundation for the ERPO? Do they comport with the stricture of the Second Amendment, which quite explicitly states that the right to keep and bear arms "shall not be infringed"? 

I do not see how they can.

One of the more comprehensive legal explorations of the Second Amendment is the Supreme Court case District of Columbia v. Heller (554 U.S. 570 (2008)). Restating the entirety of Justice Scalia's reasoning in that opinion would be too lengthy here, and I encourage everyone to read the decision for themselves, but among the crucial conclusions reached in that decision was that the Second Amendment protected an individual right to own firearms, which right was not tied to direct participation in a militia. Additionally, Justice Scalia demonstrated that the right expressed in the Second Amendment was indeed a fundamental right--that is, not a right granted by the Second Amendment, but rather a right protected by the amendment from government intrusion.

The supreme law of the United States is that the right of the people to keep and bear arms shall not be infringed--that is the plain text of the Second Amendment and that is the plain conclusion of Justice Scalia in Heller.

Can the right to keep and bear arms be temporarily revoked or restricted without infringing upon it? Whether deliberately or incidentally, the position of supporters of Red Flag laws is that such a revocation is not an infringement. Arguably, Heller agrees with this logic, as Justice Scalia conceded that rights protected by the Constitution were not unlimited.

But is Heller correct? With respect to Justice Scalia, I believe he erred on this point. The flaw is found within the text of his opinion--in substantiating his assertion that the Second Amendment right is not unlimited, he references the British legal scholar Blackstone, as well as other notable legal commentators; he references also numerous court cases from the 19th and 20th centuries. What he does not reference is the Constitution itself. He does not point to the language of the Second Amendment, nor to any other portion of the Constitution.

This is, in my view, a fatal flaw in Scalia's logic. Even if one were to concede, in the abstract, that the Second Amendment right to keep and bear arms is not an unlimited right, that under various circumstances a person does not enjoy that right, for a government restriction to stand the government must have the authority to make that restriction. Even if one concedes that, in the abstract, the right to keep and bear arms may be limited, where in the Constitution is the government granted the authority to impose that limitation? Scalia does not answer that question in Heller, nor was that question addressed in any case referenced by Heller.

Consider the definition of the verb "infringe":

to encroach upon in a way that violates law or the rights of another

Applying this definition, the Second Amendment debars the government from regulating or legislating in any way that violates the fundamental right to keep and bear arms. Where in the Constitution is there an exception granted? Certainly not an explicit exception. One could argue, presumably, that certain powers of Congress amount to such an exception, but the more logical leaps one must make the less persuasive such an argument becomes.

The Constitution provides no explicit mechanism for restricting or revoking fundamental rights. Thus, even if we are to accept the premise that the Second Amendment right to keep and bear arms may be limited, there is no basis in the Constitution for presuming Congress has the authority to impose such limitation.

We should pause here to remember the full scope of Marshall's Marbury ruling. The crux of that case was whether or not a writ of mandamus should be issued forcing the federal government to deliver a particular commission to William Marbury. Marshall concluded that William Marbury did suffer a violation of his rights and that the laws of the United States did afford him a remedy, but the laws of the United States did not empower the Supreme Court to provide the remedy Marbury sought. Even though Marbury's claim of injury was "reasonable" and his prayer for relief was "just", the nature of Constitutional authority was such that it did not empower the government--and in particular the Supreme Court--to provide the relief sought.  It was in articulating this limitation of governmental and judicial authority that Marshall penned his immortal insight about a law repugnant to the Constitution being void.

If there is not clear Constitutional authority for Red Flag laws to temporarily revoke a person's Second Amendment rights, it is not relevant how well-intentioned, how reasonable, nor even how effective such a laws may be. If there is no authority to enact such laws, such laws may not be enacted.

If there is Constitutional authority for Red Flag laws, if there is a clause in the Constitution which empowers the government to temporarily revoke fundamental rights, it is anything but clear. A plain reading of the Constitution provides no such authority.

When tragedy strikes, it is only natural to ask what can be done to prevent such calamity in the future. When people commit horrific acts of violence, it is only natural to inquire what laws might empower either the people or the police to prevent such acts. In the wake of the twin mass shootings in El Paso and Dayton, it is eminently reasonable to consider what laws might better equip communities to head off such atrocities.

But it is neither reasonable, nor effective, nor Constitutional to seek laws which exceed the limits laid out in the Constitution. No government of the United States is chartered to go beyond the limits of authority laid out in the Constitution, no matter how well meaning the excess. Good law does not arise merely from good intentions. Good law can only arise from good legal reasoning, and good legal reasoning begins with understanding what the Constitution allows, and what it does not allow. Good legal reasoning, and thus good law, entails asking the right questions.

The debate about Red Flag laws proceeds from the wrong questions. The debate about Red Flag laws centers on the reasonableness of the laws, and the efficacy of the laws, with merely a nod to their Constitutionality, and with no thought at all to the capacity of the Congress to enact Red Flag laws.

Red Flag laws are thus bad law. They require government to exceed its Constitutional authority. Such laws are automatically repugnant to the Constitution and must be immediately considered void.