But there are reasons not to do so. First, the problem of passing reasonable legislation that could ameliorate our gun problem is a problem of political culture, not constitutional law, despite the assumptions who read nothing more than headlines describing Supreme Court decisions. Yes, it's true that District of Columbia v. Heller found an individual right to own firearms , but that's not all the Court held:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. . . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.(Citations omitted.)
The Court notes in a footnote that "[w]e identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."
There's a second caveat to the Court's finding of a personal right to own a firearm:
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”(Citations omitted.)
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Think about that for a moment. The Second Amendment protects ownership only of weapons that were the sorts of weapons protected were those “in common use at the time” of its enactment. This is hardly the charter the NRA was hoping for.
So if we can find the will politically, we can act. We are only helpless because we perceive ourselves to be.
Two other grounds for hope. First, although mass shootings are on the rise, gun violence overall has significantly decreased since its peak in the mid-1990s. That doesn't mean we should let our craven political class off the hook; it does mean that anger, not panic, is the correct response. It also means we need to grapple with the specific problems posed by mass shootings, to see what policy initiatives and legislation could help address them.
Along those lines, I want to highlight a post from Brian W. Schoeneman, a veteran political professional who is also, I think it fair to say, a serious conservative, and avid Second Amendment supporter. Remember when I angrily called for gun owners to step up? Schoeneman does (admittedly with some shots at liberals, but I'll take it):
It is incumbent upon those of us in the gun rights community, not the gun grabbing advocates, to come up with the ideas to help solve this problem, however. Our passion for defending our second amendment rights has lead to a great expansion in the rights of Americans to keep and bear arms as protected by the Second Amendment, which we should be proud of. At the same time, to paraphrase Stan Lee, with greater freedom comes greater responsibility. No law-abiding gun owner wants their rights infringed upon because a criminal used a gun to shoot up a school, a theater, a clinic or anywhere else. But that’s the first, and only, response from those on the left to these crimes. Clearly, the solutions to these problems aren’t going to come from the left. They have to come from us.OK, not thrilled to be called a gun grabber--but still: Thank God. Seriously. Because if Mr. Schoeneman gets it, then we might just see more on his side of the fence join with him. And he might be surprised to discover how many liberals don't want to eliminate the Second Amendment, but would make common cause with conservatives to try solutions that might solve what he rightly calls an epidemic.
In the interests of full disclosure, when I ran for House of Delegates in 2011, I received the AQ rating from the NRA. I also received the Virginia Citizens Defense League endorsement. I’ve been a gun rights advocate my entire life – it was the earliest political issue I became passionate about. I’m also a gun owner, owning both long guns and handguns, and I took my wife on our second date to the gun range. For those concerned about my conservative credentials, this is one issue where I am to the right of Attilla the Hun. At the same time, I recognize that the status quo – where every day and every week we see more tragedies like Sandy Hook, Aurora, and these latest – is untenable. We need to take some positive steps to address these issues.
Here are his ideas--he carefully notes that they are not final proposals suitable for enactment, but first thoughts to start discussing (I'm abridging his discussion of the ideas, but it's well worth a read):
1. A national firearms transfer fee to fund mental health beds and an enhanced NICS background check system – Funding for mental health, especially in poorer communities, has been a concern. . . . . Imposing a reasonable, flat fee on every transfer of a firearm that requires a background check – not more than $20 – could help provide additional funding without raising taxes on everybody. The fee would be set aside specifically for mental health and NICS, with the mental health portion going where it is most needed.Schoeneman writes that "Even the solutions I’ve outlined below feel inadequate. I don’t know if any solution is ever going to feel adequate in the wake of another one of these tragedies, but we can’t afford to let despair cloud reason. My goal here is to present solutions that actually address the various problems leading to mass shootings, and are politically feasible."
...$20 is the equivalent of a box or two of ammo. $100 is too high. $20 is reasonable.
2. Expand the NICS background check system to include the terrorism watch list – . . . .If we are honestly concerned about international and domestic terror, it makes little sense for us not to be cross-checking gun purchases through the terrorism watch lists. While there are obvious concerns about the accuracy of those lists, those same concerns exist for all of the various databases used here.
If we do add the terrorism watch list to NICS, there needs to be an expedited appeal process to ensure those mistakenly on the list or those who are on the list because they are wanted for questioning in regards to some other individual’s activities (as the NRA noted in the link above) aren’t delayed unnecessarily from buying a gun.
Because we are dealing with a Constitutional right, these changes absolutely have to involve due process, and give anybody denied at the minimum a right to be heard in their own defense.
3. Repeal the three day “must issue” rule for delays in background checks – Right now, if a background check can’t be completed within three days, gun dealers are required to transfer the gun. Over 99% of background checks are instant, but there are some that take longer, often due to gaps in the data. It is likely that, if we add the terrorist watch lists to NICS, the delays will increase. While there should always be an emphasis on speed, speed at the expense of accuracy is not acceptable here. It is better to err on the side of caution and not transfer a firearm if the background check has not been completed. If this becomes a common way of delaying purchases and impacts law abiding citizens significantly, it can be addressed later. . . .
4. Pressure on social media companies to do more to restrict the ability of potential mass shooters to connect with like-minded individuals and self-radicalize – While I am not aware of any formal studies (we could use one) on the role of social media in the increased number of mass shootings, there does appear to be plenty of anecdotal evidence. And there is no question that the rise of social media has had a major impact on recruiting of radical Islamic terrorists and the self-radicalization of Americans. Facebook and Twitter – the latter especially – have been common tools used by terrorists to spread propaganda and self radicalize.
As more and more Americans spend more and more time interacting with each other over social media, the emphasis on policing social media needs to increase. While government should not step in here to curtail what is, unfortunately, free speech, these social media companies should make it more difficult for hate groups, potential terrorists and their sympathizers, and similar high-risk people to use their platforms to coordinate attacks and spread propaganda. . . .
5. Treat these mass murder as a public health issue – Treating gun violence as a public health issue has been controversial for a while and almost derailed the Surgeon General’s nomination. That being said, there is some logic to treating this violence – especially the parts of it tied to mental health issue – as a public health issue. At the very least, it would lead to more non-partisan studies on the issue, and potentially to more people trying to find solutions. There are a lot of areas that need to be explored, not the least of which is the actual – not anecdotal – relationship between mental health and mass shootings, as well as the relationship between certain types of drugs and violent behavior. It’s time we take these issues out of the realm of politics and conspiracy theories and actually start studying them.
I doubt he'd thank me for my endorsement, but I think he's met that goal (though he's getting beat up pretty badly in the comment section of his blog). Most of the ideas he presents are good (number 4 really is only viable if the social media companies and communities do it themselves, without government pressure, let alone mandates. Otherwise the First Amendment is being violated--but Schoeneman is aware of the problem, and tailors his suggestion to address it), and I'm delighted to see them proposed by a genuine conservative and supporter of the Second Amendment. If others in his community join him, we could see some progress. We might even stop screaming at each other, and start talking--and, even better, listening.
 While the Court's analysis in Heller essentially erases what it calls the "prefatory clause" of the Second Amendment, what I would call the declaration of purpose, its analysis is on the whole defensible, and, in many ways, correct. Much more problematic is McDonald v City of Chicago, which "incorporates" the Second Amendment against the states, who would be the entities to make sure that the militias are in fact "well-regulated," which is the purpose of the Amendment. While I'm normally a believer in incorporation of the Bill of Rights as against the states, the Second Amendment doesn't really fit that paradigm, as incorporation leaves nobody with the ability to ensure the militias are in fact "well-regulated," thereby defeating the purpose and reducing the declaration of intent to surplusage.