On Monday, with victims of the previous night’s massacre still dying at Las Vegas-area hospitals, conservative commentator Bill O’Reilly had a blunt message to a nation in mourning after the latest high-profile mass shooting, this one the deadliest in modern U.S. history. This sort of death and suffering, he said, is a foregone conclusion.
“This is the price of freedom,” the former Fox News anchor wrote on his website. “The Second Amendment is clear that Americans have a right to arm themselves for protection. Even the loons.”
For all the talk on the right about the importance of not politicizing the tragedy, O’Reilly was jumping with both feet into the middle of our raging political debate over gun rights. And he was doing us the favor of being explicit about his argument: In a society that supports a largely absolutist and individualist view of the right to bear arms, we should expect to make ritual sacrifices at the altar of the Second Amendment. This violence isn’t pretty ― it’s “the big downside of American freedom,” wrote O’Reilly ― but it’s an unavoidable tradeoff for a nation that wants easy access to weapons.
O’Reilly was simply distilling the overarching philosophy of the National Rifle Association, its supporters and the lawmakers who reliably toe the line on their interpretation of gun rights.
“This is a frank admission of the gun rights movement’s philosophy, which is that, yes, there will be these harms that come from broad civilian ownership of guns, but you have the right, and the right’s essential to your freedom, so we’ll just have to live with these consequences,” said Adam Winkler, a professor of constitutional law at the UCLA School of Law.
The glib resignation of that mindset is the final rhetorical stage of a revolution launched a half century ago by gun rights advocates. They’ve spent hundreds of millions of dollars on political lobbying and campaigns, suppressed and distorted gun violence research, and aggressively pushed the paranoid narrative that the government is coming for Americans’ guns.
Having reshaped the Second Amendment to their ends, all that remained for the NRA and its supporters was to encourage a shrugging acquiescence to the supposed holy writ of our Constitution. President Barack Obama was addressing that acquiescence in 2016, when he gave a speech unveiling new gun control measures in the wake of a mass shooting in San Bernardino, California. He urged Americans not “to accept this carnage as the price of freedom.”
But Americans largely have accepted it, if the failure of Congress to pass any gun control legislation in nearly a decade is any indication.
O’Reilly understands the stakes of our acquiescence, which is never more important to the gun rights cause than in the emotional aftermath of massive gun death. And in this case, there was little room to obfuscate or deflect. Typically, there is a much longer period of finger pointing and what-ifs after a mass shooting, at least when a gunman claims to be an ISIS sympathizer, or is found to have been mentally ill, or in violation of existing firearms law, or carried out the attack in a gun-free zone, where armed bystanders were not free to return fire.
But Stephen Paddock, the gunman in Las Vegas, had legally purchased a veritable arsenal, including numerous assault-style rifles, and did not set off any alarm bells with law enforcement or mental health professionals before carrying out his murderous plot. No number of good guys with guns could have neutralized the shooter as he indiscriminately sprayed gunfire into a crowd of 22,000 concertgoers from his perch on the 32nd floor of the Mandalay Bay Resort and Casino.
The same particulars behind O’Reilly’s frankness led others to change their minds. Caleb Keeter, a guitarist who performed with the Josh Abbott Band in Las Vegas hours before the shooting, publicly apologized for his lifelong opposition to gun control in a Twitter post on Monday. He recalled that his colleagues received shrapnel wounds merely because they were standing near other gunshot victims, and suggested civilian weaponry had gotten “out of hand.”
“You don’t say human lives are a price you’re willing to pay,” said Winkler. “We should always try to reduce the loss of life, not increase it, or objectify it as some cost and not recognize the real human beings who are affected.”
Geoffrey Stone, a professor of constitutional law at the University of Chicago Law School, said there’s a broader debate to be had about whether society wants to define “freedom” to mean civilians being largely free to purchase and possess whatever firearms they want in whatever quantity.
“In my view, that is an utterly absurd conception of ‘freedom’ and has absolutely no basis in our Constitution or our Second Amendment,” Stone said in an email. “One might just as well say that one has the ‘freedom’ to drive as fast as one wants or one has the ‘freedom’ to rape women or the ‘freedom’ to hold others as slaves.”
By taking no action whatsoever in the wake of these increasingly deadly and frequent mass shootings, lawmakers and their constituents have given tacit approval to an arrangement in which death tolls are only limited by a would-be gunman’s depravity, choice of target, planning and marksmanship. As Sunday’s bloodshed shows, there will always be a more heartless person, with higher-powered weapons, better aim and a more sadistic plot to lay waste to innocent civilians.
Although people like O’Reilly appear determined to sit back and continue to do nothing in the face of these circumstances, not everyone may be resigned to living in the gun lobby’s stranglehold. As the euphemisms fall away and the issue clarifies itself into a straightforward matter of largely unfettered gun rights versus lives, the courts perhaps will be freer to tip the balance in the other direction.
“In terms of constitutional law, the courts are going to be less willing to say that human lives are a price for liberty,” said Winkler. “No constitutional rights are absolute, and the court will generally allow laws to burden rights where the government has compelling reasons to do so, and protecting human life is the most compelling of reasons. From a Second Amendment perspective, when gun rights advocates take an insensitive approach to the human lives that are lost, it probably makes it only more likely that courts will value those lives and prioritize them over gun freedoms.”