Let’s Let the States Own the Gun Debate

December 17, 2012

The school shooting in Newtown, CT has focused attention again on gun control. The President has called for concrete action, “regardless of the politics.” But let’s be realistic. When the President speaks, he’s talking about federal law. There will be no tightening of restrictions on gun ownership at the federal level this time, just as there has been no tightening after the last 30 school shootings.

gunshot woundGun rights absolutists listening to the renewed gun debate are no doubt steeling themselves for what they imagine is the inevitable knock on the door from federal agents from the Bureau of Alcohol, Tobacco and Firearms, demanding that they hand over their guns. But we know ATF isn’t coming. They’d be met with legal challenges, supported forcefully and with enormous political and cash resources by the National Rifle Association, and bolstered by recent Supreme Court interpretations of the Second Amendment. The deaths of 20 small children in the senseless attack at the Sandy Hook School might raise the noise level in the debate, but in the end we’ll be right back where we are today.

I don’t believe there’s any point in revisiting gun rights on the federal level. But I have an alternative to suggest: Let’s relocate the entire debate to the state level.

Gun control is one of those areas of morality and law where regional differences are stark. There is very strong support in urban areas for the idea that tighter restrictions on gun sales and ownership can reduce the likelihood of gun violence, especially of the kind of random incidents we’ve seen in schools. Big city mayors tend to support this idea. I believe this is especially true in the densely populated states on both coasts. However, except in Illinois, support for this stance is much, much weaker in the Midwest and South. The difference isn’t trivial. Surely, people in Idaho or Arizona would push back strongly if they were asked to adopt what they see as New Jersey or Connecticut standards on gun rights. On the other hand, it is deeply offensive here in New Jersey that we must live by Idaho’s standards. Because the fact is, there are only marginal differences in the gun laws from state to state. The fundamentals are federal — all states are hemmed in by the Second Amendment as read by the Roberts Court.

I think, however, that Americans could move toward a consensus if we understood and respected the fact that states differ in their attitudes toward gun control, as they do in many areas of law where the US Constitution is silent, leaving jurisdiction to the states. For my part, I’d be fine with lax firearm restrictions in Texas or Arizona — I differ with many attitudes that seem to predominate in those parts of the country — if my state were truly free to institute its own gun control standards, which I am convinced would be far more restrictive than they are now if New Jersey were not constrained by the federal constitution.

I propose that the US abolish all federal oversight of gun ownership, and abdicate all of its responsibilities in this realm to the states.

I have to believe this would appeal enormously to states’ rights and gun ideologues in Oklahoma or Wyoming. For one thing, there would be no further occasion for the (generally imaginary) concern about federal agents seizing their weapons, because there would be no such agents. I’m proposing that we strip the Treasury Department of its jurisdiction over guns, removing the “F” from ATF. The feds would only be concerned from then on with the sale of weapons across state lines, but only as an interstate commerce matter. The FBI would concern itself with firearms only when they are actually used to commit federal crimes. The only authorities directly interested in any innocent citizen’s guns would be state authorities. State authorities would be likely to enforce laws that reflect that state’s attitudes about gun rights.

There is, of course, a catch in this proposal.

In order to divorce the federal government from its authority over guns, it would be necessary to get rid of the constitutional language that establishes that authority: The Second Amendment.

I say the Second Amendment establishes federal authority over guns because it prohibits states who might prefer far more restrictive gun laws from enacting them. The bargain I’m proposing would only be acceptable in places like New York or California if it were clearly understood that they would be free to tighten their gun restrictions without worrying about challenges under the US Constitution. Delete the Second Amendment and the regulation of firearms will fall under the 10th — which specifies that anything that isn’t spelled out as a federal prerogative is subject to the laws of the states. And that’s the deal I’m proposing. Go your own way on guns, Alabama, but leave us alone to go our own way here.

It appears that one woman’s irresponsibility led to easy access by her mentally unstable son to her legally-acquired guns, causing her own death and the atrocity at Sandy Hook Elementary.

But I happen to believe nonetheless that we would reduce the number of gun homicides in the aggregate if we had tighter regulation of gun ownership, mandatory registration of firearms, strong oversight of owner training, and an outright ban on assault weapons and large ammunition clips. If I had a choice between living in a state with such restrictions and living in one with more relaxed gun laws, I’d choose the tightly restricted state. I believe a majority in New Jersey would vote for tighter gun laws than the constitution currently allows if they could. And I believe New Jerseyans would respect the rights of citizens of other states to choose much looser standards if that is what they wanted. At any rate, I would.

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