Most of my family lives near Aurora, Colorado.
My nephews are huge Batman fans.
Luckily, Zac and Caleb are only six and three years old. Friday night, at midnight, they were sound asleep in their beds, dreaming of superheroes.
Me, I'm a Supreme Court scholar, a Philadelphia law professor, and a mother.
To me, the theater shootings in Aurora are the perfect storm of everything I care about, all mixed up together.
I care about kids' safety.
I care about gun control.
I care about the Supreme Court's two recent decisions about the right to bear arms.
And I care about the fall election, in which Americans will elect a president whose legacy will almost certainly include appointing at least one Justice to the United States Supreme Court.
Today, as the media converges on Aurora, as families mourn their dead, as parents fear for their own kids' safety, and as Americans ask, "How could we let this happen again?" it's time to start talking about just what we can do about gun violence -- and what we can't.
In 2008 and 2010, the Supreme Court held that the Second Amendment protected individual Americans' rights to own guns. Put another way, here's what that means: You know how you can travel from state to state? Or use contraception? Or have a jury trial if you are charged with a crime? You can own a gun, too. Or two. Or four.
According to the Supreme Court, because James Holmes was not a convicted felon or identified as mentally ill, Colorado could not prevent James Holmes from legally buying at least three of the four guns he allegedly used in Aurora on Friday night. He could keep the guns in his apartment. He could hold them in his hands, and watch violent movies, and fantasize about shooting people dead with them. Sure, he couldn't necessarily conceal them, and he certainly couldn't legally commit a massacre with them, but the Supreme Court guaranteed his right to acquire them -- and, of course, acquisition is nine-tenths of the game if what you want to do is shoot up a movie theater full of fans cheering for a dark knight.
And so, based on what the Supreme Court says the Constitution says, here's what we can't do about gun violence: We cannot prevent the James Holmeses, or the George Zimmermans, or maybe even the Jared Loughners of the world from buying most types of guns. We can only arrest them after they use the guns in an illegal -- often fatal -- way.
But here's what we can do: We can elect a president who will change the composition of the United States Supreme Court.
After the decision in the Affordable Care Act cases, there has been a lot of speculation about whether the Supreme Court is influenced by the political lobby. That's a more complicated question than it might appear at first blush, but let's say for the sake of argument that the Court is aware of the political landscape and decides cases in a way that is fairly consistent with the majority view. If that is true (and some scholars have argued that the Court is rarely politically deviant), then the gun control issue has two very loud voices screaming to be heard: the pro-gun lobby, and the gun control lobby. Taking the "do the Justices care about politics" question one step further, if the Court cared about politics in 2008 and 2010, it could be argued that the pro-gun lobby resonated more loudly with the Justices, resulting in the Court's decision that the Constitution protected the rights of gun owners.
But if the next president were to replace, say, Justices Scalia and Kennedy, then the political arguments that the Justices "heard" could possibly be different -- if, that is, that president were to appoint Justices who saw the Second Amendment differently from their predecessors.
Sure, it's true that the Supreme Court rarely reverses itself within a few years' time, but, as scholars have long known, it does happen -- most often with changes in composition on the Court. As Eric J. Segall has written recently in Supreme Myths, in the past several years alone, the Court changed constitutional course on issues like late-term abortion and sodomy -- not because the Constitution changed, but because the Justices on the bench did.
And once the Court changes, it changes long-term. While presidents serve for four or eight years at most, Justices hold their seats for life -- in some cases, up to thirty-five years. President Jed Bartlet (OK, he wasn't actually president, but how we wish he had been) said, when confronted with the difficult decision of whom to appoint to fill a Supreme Court vacancy, "Filling another seat on this Court may the only lasting thing I do in this office."
And so what can we do to protect our little Batmen and Robins, kids like my nephews who might be at risk at school or at the grocery store, or, yes, at the movie theater? We can vote. We can get out the vote. We can support candidates who support gun control.
We can stop asking, "How could we let this happen" and make sure it never happens again.
Follow Lisa McElroy on Twitter: www.twitter.com/proflisamcelroy
Andrew Beazley: In Defence of the Gun
What she is asking is to stack the Supreme Court with haters of the Second Amendment so Congress can pass laws with impunity and not be held accountable by the people.
Being defenseless is irresponsible and does not in any way make you safe. On the contrary it's irresponsible and unsafe.
"Here we may note that assassinations of this sort that result from the deliberations of men of determined and unshakeable purpose are impossible for a prince to protect himself against, for such a deed may be accomplished by anyone who cares not for his own life." -- Machiavelli, "The Prince"
We see this in the lone gunman; we see this in the suicide bomber. No one would have been able to stop Holmes without a thorough, unconstitutional search.
The only thing armed citizens will do is add to the body count.
1. Your argument is the same as the NRA's: Obama Election = Gun Right restrictions. If he follows your advice, he will not be appointing any further supreme court justices; shades of Al Gore.
2. The Supreme Court only held, on the facts, that one had the constitutional right to own a handgun, in one's home, subject to reasonable regulations, which right cannot be obviated by onerous local regulation.
3. Assuming, for example, that Clarence Thomas abruptly retired in outrage after the President is reelected, would you impose a 2d Amendment litmus test? How could he insure that a "crypto" pro 2d amendment judge wasn't appointed?
4. What are you going to do about the 4 million civilian assault rifles already sold - confiscate them? If so, by what legal magic?
Thanks in advance.
The legal profession makes all kinds of money from other people's misery, and the more laws there are, the more work for lawyers...so I understand why this Philadelphia lawyer wants more laws. What I don't understand is why she would think a gun prohibition would work any better than the alcohol prohibition of the 1920s. Mexico has very strict gun laws, yet they have 4 times the homicide rate of the U.S. Norway has very strict weapons laws, yet they had two horrible massacres last year.
In Philadelphia a wise man once said:
"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." -- Ben Franklin
In this case, all that would be purchased is an illusion of security.
If you want explosives, I can mix them up right in the sink. There are lots of us who can, but we don't BECAUSE IT'S ILLEGAL.
Next.
ECS
This writer seems to think the Supreme Court's job is to make laws. Last I checked, their job is to interpret the Constitution, which pretty unequivocally states that there is a protected right to bear arms. If you want gun control, amend the Constitution first. Good luck with that.
Funny you have no problem with the first "right" which was invented from the "penumbras" of the invented "right" to privacy in the Constitution, but you take issue with a right that is actually enumerated and protected under the Constitution. It seems like a Constitutional lawyer would see that the right to keep and bear arms has a lot more ground to stand on than contraception "rights."
Not true. Going bat-s#!t crazy (no pun intended) is 9/10 of the game.
Everyone who buys or owns a gun needs a background check and permit;
Background checks must be renewed every so often (2 or 3 years);
Every gun needs to be registered;
Ammunition rounds loadable on a gun should be limited before reload (10? AR 15 could have 100)); and
Rounds per minute shot from a gun should be limited (30? A% 15 could shoot hundreds).
Note that these are not overly restricting. Note also that it will not stop all mass shootings. But nothing really can.
The bullet points above allow hunters to do their thing and citizens to protect themselves (although not from a mid-size town's police department from raiding their homes, I admit).
Also, James Holmes would not have been able to buy an AR 15, or any weapon capable of shooting so many in such a short period of time.
Not sure how is a "liberal" stance trying keep assault-type weapons from everyone, or requiring some minimum qualifications for legal ownership.
"Like most rights, the Second Amendment
right is not unlimited. It is not a right to keep and carry any
weapon whatsoever in any manner whatsoever and for whatever purpose" Antonin Scalia
Check ever two or three years? If they have a CCW when they renew it they get run through an checked again. General 4 year or up 7 depending on the state.
Registration? For what? What purpose does that serve in a preventative capacity?
10rd? Why, then they just take more Mags. The Virginia Tech shooter had ten round magazines and committed more murders than both Holmes and Loughner with their extended mags. He trained himself in the use of his tools. That is the difference.
Rounds per minute. This, you really can't do. Automatic Rifles and handguns are prohibited unless you have a stamp and ATF approval. A semiauto is one trigger pull, one bullet exits. So the rounds per minute are dependent upon how fast the individual pulls the trigger. How do you propose to limit that? Arthritis? I know guys with revolvers that can fire 60 in a minute.
You are right non of these are over reaching in the least. However most already exist, one has no preventive safety capacity what so ever. And the last one simply can't be done.