A modest proposal for extreme and Constitutional gun control:

The right is losing a considerable amount of ground in the culture wars—every poll released in the last year shows America lurching to the left on traditional issues for conservatives from gay marriage to economic regulation to opening relations with Cuba. But there is one issue where the Democratic party has largely ceded its position in recent elections: gun control.

Democratic party strategists saw they could be more competitive with Republicans in non-urban districts if they took gun control off the table. Even though a majority of Americans support stricter gun-control measures, exurban and rural districts where gun ownership is a staple of local culture and the $17 million the gun lobby gave to Congressional candidates since 1990 ensured that gun control would continue to be a third rail. Fortune ranked the National Rifle Association as the most powerful lobbyist group in 2002 for a reason. But the tides in gun control are shifting in fascinating ways: NRA contributions have ebbed from $3.1 million in 2000 to a paltry $1.1 million in 2008; at the same time, the Supreme Court’s new conservative majority upheld the NRA’s reading of the Second Amendment as preserving an individual right to own firearms in 2007’s DC v. Heller, which struck down any Washington DC’s ban on handguns. One of the aspects of the Heller ruling is also that it enjoins the Federal government from similar bans—because DC is essentially a colony under Federal control.

The fear of new gun legislation has sprung up as a rallying cry for rump conservatives and the fear of confiscation has fired up the fringes of the right-wing movement. Gun sales have skyrocketed since Obama’s election. The fears of gun nuts that the government is going to confiscate or ban their weapons is not only palpable, it’s a market force to be reckoned with—and exploited by conservative media. Although there is a visible minority of Americans who categorically oppose any restrictions on gun ownership whatsoever, most agree that there should be some degree of infringement on the right to buy firearms and want to keep them out of the hands of the mentally ill. One of those people, theoretically, is Wayne LaPierre, CEO of the NRA, who admonished the government to enforce the current gun laws—on Mexican narcoterrorists who have been alleged to buy their guns in the US and run them back to Mexico. But there is a definite fringe element, currently being catered to by the likes of right-wing media stars Glenn Beck or Alex Jones, who don’t even need to point to a particular piece of legislation—they know, deep in their hearts, that Barack Obama is going to take their guns away.

As is the case with almost every current right-wing phobia, it is the Obama administration who get tarred with the actions carried out by his predecessor. Bush nationalized the banks, which makes Obama a socialist; Bush ran up the deficit, which makes Obama an out-of-control spender; when, in New Orleans, mercenary troops contracted by the government for the first time actually confiscated legal firearms from citizens under martial law, Obama becomes a gun-grabber.

The way the lines in the battle over gun control have been drawn is deeply etched into the history of the NRA itself. The National Rifle Association was founded by Union veterans in 1871 “to promote rifle practice, and for this purpose to provide a suitable range or ranges in the vicinity of New York…and to promote the introduction of a system of aiming drill and target firing among the National Guard of New York and the militia of other states.” As increasing urban violence led the government to pass gun control laws, the NRA moved away from being based around marksmanship and gun safety. The conflict between the old NRA (sportsmen) and the new NRA (militant gun owners) came to a head in 1977 at the annual convention in Cinncinati. Safety was out, unrestricted weapons-hoarding was in. The NRA that worked with police to improve marksmanship and supported the ban on cheap “Saturday Night Specials” is long gone. Now, the NRA serves a growing radical fringe who fear the government is going to storm their houses and take their guns away.

It’s important to draw the distinction between gun control and confiscation. The most important gun control lobby in the country today is the Brady Campaign to Prevent Gun Violence, named after Reagan Press Secretary James Brady, who was shot by would-be presidential assassin James Hinckley. Since the shooting, Brady and his wife, Sarah, have been the foremost advocates of gun control legislation, culminating in the Assault Weapons Ban under President Bill Clinton. Today, the Brady campaign’s stated goals are “to reform the gun industry by enacting and enforcing sensible regulations to reduce gun violence, including regulations governing the gun industry,” and to “educate the public about gun violence through litigation, grassroots mobilization, and outreach to affected communities.” In practice, this means reinstating the Assault Weapons Ban (which expired under Bush in 2004), pursuing legislation that restricts the carrying of weapons on government property, and working with victims to prevent gun violence and promote safety. The Brady campaign also makes it clear that they do not support confiscating all guns. The Brady Campaign take a similar stance as anti-tobacco groups who think the gun industry ought to bear more responsibility for the deaths caused by their products. On their website they laud “the President’s commitment to requiring criminal background checks for all gun sales at gun shows, childproofing guns, making crime gun trace data accessible so law enforcement can fight the illegal arms trade, and permanently banning military-style assault weapons.” The headline of the article reads “Gun Violence Prevention And Obama’s First 100 Days: Incomplete.”

In reality, the Obama administration has put gun-control on the back burner, generally speaking; but if the pro-gun control Democrats can gain any traction on the gun control issue, it will be centered around terrorism. In fact, all gun control laws in America have terrorism as their inciting incident, from New York’s Sullivan law (prompted by the assassination of New York City mayor William Jay Gaynor) to the Gun Control Act of 1968 (prompted by the assassination of JFK with a rifle purchased for $19.95 from an ad in the NRA’s membership magazine). The spree killing, so well publicized since the Columbine shooting ten years ago, is another example of the kind of incident that usually results in public outcry and tighter gun control laws. In fact, gun control’s top advocate in Congress is Representative Carolyn Maloney, a former housewife who decided to run on gun control as her defining issue when her husband was killed in the 1993 spree shooting on the Long Island Railroad.

But those who actually have the most to fear from jack-booted Federal thugs knocking down their doors to take their guns are precisely the people who are imagining a Zionist Occupational Government in league with the Illuminati and the New World Order to take away their guns—the right-wing domestic terrorist groups who are resurgent in the wake of the election of the first black President. The Department of Homeland Security is well aware of the increasing threat posed by the right-wing extremists we came to call “militia members” after some of them bombed a government building in Oklahoma City in 1995. According to a report published on April 7th, “rightwing extremists may be gaining new recruits by playing on their fears about several emergent issues. The economic downturn and the election of the first African American president present unique drivers for rightwing radicalization and recruitment… The possible passage of new restrictions on firearms and the return of military veterans facing significant challenges reintegrating into their communities could lead to the potential emergence of terrorist groups or lone wolf extremists capable of carrying out violent attacks.”

For all the inflated rhetoric, there’s a basic principle involved in gun control which is implicitly acknowledged by smart people on either side of the debate. The government is not going to go door-to-door across America to take NRA members’ guns away. You know why? Because these people have guns, that’s why. Unless you actually believe that Obama is capable of starting another civil war (more on this later), it must be realized that less than 5,000 Bureau of Alcohol Tobacco and Firearms employees cannot take on 80 million American gun owners. What is possible is limiting access to weaponry, either by restricting licenses (excluding felons and the insane) or prohibiting a particular type of weapon or ammunition. A prominent thorn in the side of gun control attempts is the private sale loophole, which allows unregulated guns to be exchanged between private parties, usually at “gun shows” where vendors line up flea-market style to sell all types of weapons to eager consumers.

It is against this backdrop and the 2007 DC. v. Heller decision that Pennsylvania and New Jersey, respectively, have state and municipal gun control laws currently being challenged in court. Obama’s new Attorney General, Eric Holder, was instrumental in getting the original Assault Weapons ban passed, and there will doubtless be many more spree killings (financial difficulties and/or job loss are often contributing factors for such crimes). So, what does the Heller decision mean for the future of gun control legislation?

Not since U.S. v Miller in 1939 had the court directly addressed the Second Amendment; then as now, both sides can find comfort in the middle path the Court has established. The right to bear arms has been judged as an individual (as opposed to collective) right, but the exact language of the amendment has lost some of its force: it can be abridged in any number of ways in a number of circumstances.

The language of the Second Amendment is unique among the Bill of Rights. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Of the original Constitutional amendments, it is the only one in which a right declared for “the people” has a stated purpose. There can be no doubt that the purpose of the amendment was to specify that you had the right to bring your own guns to the armed forces; in fact, men were required to bring rifles and ammunition when called into service. Part of the militia provision had to do with the Founding Fathers’ insistence that a standing army was a threat to liberty; preferring an ad hoc militia.

The majority opinion in Heller, written by Justice Antonin Scalia, employs some curious logic and dubious references to support a political ideology. For example, a unique amendment needs a unique analysis: Scalia divides the Amendment into “prefatory” and “operative” clauses in order to argue against the idea of a whole sentence: “The prefatory language announcing the desirability of a well-regulated militia—even bearing in mind the breadth of the concept of a militia—is narrower than the guarantee of an individual right to keep and bear arms. The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.” The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias.” At the same time, the majority opinion recognizes that “the right to keep and bear arms… was subject to restrictions at common law.” So, guns cannot be banned outright, but it remains unclear if the way the court struck down a ban on handguns as a class of weapon means that a new ban on assault weapons would be Constitutional.

Heller makes it clear that the Supreme Court will brook no outright restriction on gun ownership, although it will allow for the same kind of limitations on the right to bear arms as we allow limiting free speech. As Justice Oliver Wendell Holmes Jr. famously declared in the famous Schenck v. US, “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Never mind that this sentence as structured is manifestly false—he should have said “the most stringent protection the Court will allow”—Schenck v. US established that our freedoms are circumscribed by executive necessity. So, if there is any hope for gun control, it must be not only Constitutional, meaning that we cannot outlaw arms outright; it must be grounded in the Court’s decisions like Schenck and Heller.

Charles Schenck was locked up for sending leaflets through the mail opposing the Conscription Act during World War I, merely for asking people to sign a petition against the draft. The Holmes decision’s famous restriction on speech constituting “clear and present danger” was supposed to be applied only during wartime; the leaflet in question never advocated treason or violent revolution; it encouraged readers, “Write to your Congressman and tell him you want the law repealed… Exercise your rights of free speech, peaceful assemblage, and petitioning the government for a redress of grievances.” Yes, a unanimous decision sent a man to jail for quoting the First Amendment in conjunction with the Thirteenth, which reads, “Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

However, since we live in post-Schenck and post-Heller times, I have a modest proposal for gun control that remains consistent with all of the above Amendments and Supreme Court decisions. Heller makes it clear that “the right is broader than its civic purpose” when it comes to bearing arms in a well-regulated militia, which means that the Supreme Court will not allow the Federal government to outlaw weapons lest they be used for self-defense by responsible citizens. Likewise, we can predict that the Equal Protection clause of the Fourteenth Amendment doesn’t bode well for states and local governments who wish to ban guns. But it leaves the door open to making the People take the bearing of arms less lightly, and the most Constitutionally sound way to do that may well be to reactivate that “prefatory clause” of the Second Amendment for which the majority opinion of the Court seems to have little use.

The problem with guns is not that responsible citizens are using them for hunting or self-defense. It’s that the gun lobby has abandoned any pretense to the civic duty implied in the Second Amendment, to the point that they got the Supreme Court to nullify it. What I mean to say is this: every licensed gun owner ought to have to serve in their local National Guard.

The Court’s conservative majority, which based its decision as heavily on the writings of libertarian blogger and law professor Eugene Volokh as on previous case law, saw this line of reasoning coming a mile away:

“Reasonable restrictions also might be thought consistent with a “well regulated Militia.” The registration of firearms gives the government information as to how many people would be armed for militia service if called up. Reasonable firearm proficiency testing would both promote public safety and produce better candidates for military service. Personal characteristics, such as insanity or felonious conduct, that make gun ownership dangerous to society also make someone unsuitable for service in the militia. Cf. D.C. Code § 49-401 (excluding “idiots, lunatics, common drunkards, vagabonds, paupers, and persons convicted of any infamous crime” from militia duty). On the other hand, it does not follow that a person who is unsuitable for militia service has no right to keep and bear arms. A physically disabled person, for instance, might not be able to participate in even the most rudimentary organized militia. But this person would still have the right to keep and bear arms, just as men over the age of forty-five and women would have that right, even though our nation has traditionally excluded them from membership in the militia. As we have explained, the right is broader than its civic purpose.”

There’s a major flaw in the majority opinion’s reasoning here. We don’t have even the most rudimentary militia, we have the best-funded military in the world, where, coincidentally, you can be court martialed for bringing your own gun. A quick look at the National Guard’s website shows that you can serve your state militia in any number of non-combat capacities, from chaplaincy to food services, none of which require one to be particularly able-bodied. Though the Guard does have a physical fitness requirement, we’ve lowered our standards and we’re perfectly capable of lowering them again. If the right to bear arms is explicitly predicated on a civic purpose (unlike the right to free speech or the right to a speedy trial), the balance of gun laws ought to incorporate civic duty into regulations instead of just limiting the rights of gun owners. Banning guns may be impossible as it is impractical. But at least we can try to ensure that arms are not borne lightly.