There will be a major change in the gun control debate when gun owners, feeling secure enough in the knowledge that the Second Amendment protects their rights, no longer see legislation calling for universal background checks as a forerunner to gun confiscation.
That was the message UCLA constitutional law professor Adam Winkler delivered at the tail end of a discussion panel Sunday at the annual Los Angeles Times Festival of Books.
His comment came in reply to a question from an audience member about whether “gun control” could lead to “martial law.”
But whether the profound truth underlying Winkler’s message will sink in is another story. At this point in American legal history, the right of individuals to own weapons has never been more secure. (How many realize that 43 of the 50 states contain gun-rights protections in their state constitutions, including Nevada? Or that the Founding Fathers prohibited weapons to those who refused to swear loyalty to the revolution? Or that they registered the weapons that militia members were required to purchase and train with?)
Now, especially after the Supreme Court’s rulings in District of Columbia v. Heller (in 2008) and McDonald v. Chicago (in 2010), the individual right to own a gun is beyond question.
Yet last week the Senate’s moderate efforts to extend the existing background check requirement to private-party sales online and at gun shows was rebuffed, in part amid fears that the additional burden on Second Amendment rights was too great. Lurking behind the rhetoric was the fear that someday the government would come to get your guns.
University of California, Irvine School of Law Dean Erwin Chemerinsky had an answer to the martial law question, too: Our protection from tyranny comes from our constitutional system of laws, and the ability to seek redress against government overreach in the courts. While there are thousands of examples of citizens fighting successfully in court to stop government tyranny, there are no examples since 1776 of Americans using weapons to throw off by force the yoke of government oppression. The last attempt, in 1861, didn’t end well for the rebels.
Moreover, the question must be answered: At what theoretical point along the continuum of tyranny is it appropriate to invoke “Second Amendment remedies”? (And let’s be honest about what we’re really talking about here: At what point is it morally acceptable to start killing police officers, government officials and American soldiers because you don’t like the way the country is being run?)
Is it when your side loses an election? When you fail to persuade the HOA to let you put up a backyard awning? After the EPA adopts a new regulation? If the government re-institutes the draft for its next foreign misadventure?
The last time Second Amendment remedies were invoked on a broad scale, it involved the claimed right to own and exploit the labor of other human beings. Can we assume that’s off the table now?
Another audience member tried to bait the panel’s law professors, asking why the senatorial power of populous California was the same as nearly deserted Wyoming. Again, Cherminsky had an answer: It’s not the Great Compromise that’s to blame, it’s the compromises on filibuster reform. The Constitution is clear about the few specific instances when a supermajority is required, and legislation produced in the regular order is not one of them, he said.
“I think there are strong arguments that the filibuster is unconstitutional,” Cherminsky said.
Senate Majority Leader Harry Reid, D-Nev., has promised to bring the background checks bill back for another vote.
Before he does, however, we’ll need a major change in this country, one that allows gun owners to understand that background checks are not only constitutional, but no threat to gun rights whatsoever.
Good luck with that.
Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or firstname.lastname@example.org.