What Role Should Lawyers Play in the Gun Control Debate?
By Tom Williamson
The title of this column will no doubt raise hackles on both sides of the gun control debate, so let me begin with a cautionary note. This column does not purport to argue who is right or who is wrong about federal proposals for gun control reform that have been put forth in recent months; rather, this column will try to suggest how lawyers as a profession can help shape the emerging debate in a manner that will assist this country in reaching a consensus on whether modifying existing gun control laws makes sense.
In early February I was in Dallas attending the American Bar Association’s Midyear Meeting. One night I was watching the local late–night news reports on reactions to the Obama administration’s proposals for gun control reform in response to the devastating atrocity that occurred at Sandy Hook Elementary School in Newtown, Connecticut, late last year. The most salient reaction in the Dallas area appeared to be the onslaught of preemptive gun purchases by consumers who feared that the federal government would shortly ban ownership not only of semiautomatic AR–15s, but guns generally.
When I returned to Washington, D.C., I learned that the panic–driven spike in gun–buying in Dallas was not at all unusual; indeed, it was representative of gun–purchasing trends around the country, to the point where gun manufacturers could not keep up with the demand. In some quarters, the word seemed to have gone out that the Obama administration’s proposals were a harbinger for federal plans to confiscate the firearms already owned by law-abiding citizens.
As a resident of and lawyer in the District of Columbia, these news reports struck me as both puzzling and alarming. They were puzzling because of the experience of the District, which actually tried to ban the ownership of handguns. The issue made its way to the U.S. Supreme Court, and in 2008 the Court decided in the landmark case District of Columbia v. Heller that the Second Amendment of the U.S. Constitution prohibits the government from denying individual citizens the right “to keep and bear arms.” Although the decision noted that the government could impose reasonable restrictions on the types of weapons that could be owned by individuals and require qualifications that might exclude certain categories of persons from gun ownership (e.g., felons, the mentally ill, etc.), the Court delivered the unmistakable message that individual gun ownership is a right that cannot be taken away or eviscerated by legislative or executive action. This constitutional affirmation of the individual’s right to gun ownership seems to have somehow eluded the awareness or understanding of those members of the public who have recently been so intent on stripping bare the shelves of the nation’s major gun retailers.
I am alarmed because it appears that the unfounded fear that the individual’s right to gun ownership under the Second Amendment will imminently be abolished has unduly skewed the current debate over gun control. This fear has understandably inflamed passions among the millions of law-abiding gun owners in the country, and this misconception about the current state of the law has fostered unfair, extremist caricatures on both sides of the debate—on the one hand, the paranoid owner of multiple assault rifles and pistols with hundreds of rounds of ammunition stored in the pantry, and on the other hand, the resolute gun–control zealot plotting to cleanse the entire country of all individually owned weapons. Too often spokespersons for these contending caricatures are prone to disparage the other with ad hominem attacks and are loath to engage in constructive dialog with each other.
How can lawyers help? Well, all should take the time to read the majority opinion in Heller, if not the dissenting opinions of Justices John Paul Stevens and Stephen Breyer. Lawyers will inevitably serve as advocates for all the varying viewpoints that define the current gun control debate. Those lawyers will do so as legislators, lobbyists, counsel for litigants, and community leaders—that is our system, and that is as it should be. However, lawyers bear a distinctive and unique responsibility for helping the public understand that the fundamental right of the individual to possess a gun for self–defense or traditional recreation such as hunting is not in peril—the justices of the Supreme Court have spoken, and their word is the law of the land.
Lawyers in all settings should be helping fellow citizens understand and interpret the current proposals relating to expanded background checks, limitations on the number of bullets in ammunition clips or magazines, and prohibitions on certain types of assault weapons as reasonable or unreasonable restrictions on the Second Amendment rights safeguarded by the Court’s decision in Heller. The right answers are not obvious in all instances; however, it is clear that the right questions should be about what reforms will save lives, not whether the proposed changes herald a campaign to abolish gun ownership.
The stakes for improving public policy in this regard are exceedingly high since we are literally seeking to enhance the protections we afford the lives of our children and our neighbors. Lawyers can play a vital role in ensuring that the national debate is grounded in the real issues, not hysterical red herrings, but lawyers must do so by speaking the truth about the state of the law.
Reach Tom Williamson at email@example.com.