Behind gun control debate, questions of what's practical, constitutional

The debate over new gun controls that has engulfed Washington may boil down to two key questions: Are the proposals practical and effective, and are they constitutional?

Both sides are doing their level best to marshal arguments along those lines for or against different pieces of legislation to ban assault rifles, require universal background checks of gun buyers, and strengthen federal laws against gun trafficking and straw purchases – components of President Obama's gun legislation recommendations that Senate Democrats have picked up in recent days. 

Take National Rifle Association President David Keene, who framed the debate this way on Thursday during a Monitor-sponsored breakfast with reporters. “When you are passing laws that impinge on fundamental constitutional rights, the question is twofold,” Mr. Keene said. “One, how seriously will [new laws] impinge on these rights? And secondly, is there a benefit from doing it?"

Juxtapose that with comments Wednesday, during a Senate hearing on gun violence, from Sen. Charles Schumer (D) of New York. He argued that the Democratic bills dealing with gun trafficking and background checks would not interfere with the constitutional rights of individual Americans to bear arms. 

“Those on the pro-gun side must recognize no amendment is absolute,” Senator Schumer said. “The Second Amendment has sensible limits, too.” 

This hard-minded discussion means the debate is beginning to deepen, moving beyond Democrats' emotional appeals for sweeping gun restrictions in the wake of the Dec. 14 school shootings in Newtown, Conn., and past conservatives' visions of G-men helicoptering in to wrest guns from the hands of law-abiding citizens under the fig leaf of public safety.

The two sides, however, have yet to talk brass tacks to each other. Rather, they are focused mainly on winning the public to their point of view.

To that end, the NRA's Keene and fellow gun rights defenders know they have their work cut out for them. Keene acknowledges that polls show nearly 7 in 10 Americans favor a ban on assault weapons and as many as 9 in 10 support universal background checks, but he says such polls are indicative of “people who react to something that they haven’t really thought through.”

What needs to be thought through?

The practicality of universal background checks, for one, Keene said. Conducting background checks at gun shows would not be difficult, as a practical matter, he said, adding that the NRA had supported such a measure in the past. However, legislation requiring “universal” background checks for all gun sales would do little to prevent criminals from buying weapons but would place undue burdens on law-abiding citizens who want to sell weapons to a friend or neighbor, he argued.

Selling a shotgun to your neighbor over the backyard fence raises the question of just how the seller would determine if that neighbor were a legitimate gun purchaser, Keene said. Creating a system to conduct such checks would be unworkable, he said. As a result, such a law would do much to criminalize benign transactions and, because few criminals obtain their weapons through such private sales, do little to stem gun violence.

“If you have a law that is difficult or impossible to enforce,” Keene said, “all you do is encourage contempt for the law.... So what you’re doing is putting a heavy burden on somebody who has never done anything wrong ... with little or no gain” for preventing gun violence.

Sen. Lindsay Graham (R) of South Carolina likewise cited impracticality as the reason he opposes proposed new restrictions on assault weapons and ammunition magazines. People need to be able to defend themselves, or to protect their property during an outbreak of lawlessness after a natural disaster, for example, he argued Wednesday during the Senate hearing on gun violence. 

“One bullet in the hands of the wrong person, we should all try to prevent,” Senator Graham said. “But when you start telling me that I'm unreasonable for wanting that woman to have more than six bullets [to defend herself], or to have an AR-15 if people are roaming around my neighborhood, I reject the concept.” 

Democratic Rep. Carolyn McCarthy of New York, though, sees an assault weapons ban as a practical and effective step to prevent the mentally unstable from obtaining guns to pursue mass shootings like those at Virginia Tech in 2007 and an Aurora, Colo., movie theater this past summer.

“If you don't have these guns and the large magazines on the shelves, those that have done these horrific killings wouldn't be able to go into a gun store and just buy them,” said Representative McCarthy, whose husband was murdered and whose son was severely injured in a shooting, at a recent news conference. "They don't have the background to go and look to where the black market is to be able to buy these magazines and guns. They go to the simplest place."

This is where the constitutional argument comes most into play for conservatives. Keene and other conservatives say the US Supreme Court’s 2008 decision in District of Columbia v. Heller renders unconstitutional the weapons bans proposed by Sen. Dianne Feinstein (D) of California and others.

The court ruled that firearms in common use for lawful purposes were legal, invalidating the District of Columbia’s handgun ban. Senator Feinstein’s legislation banning magazines with more than 10 rounds, for example, is too strict, constitutionally speaking, given that “a very large percentage” of handguns have standard magazines of 11 to 19 rounds and make up a large majority of firearms in the US, said David Kopel, a law professor at the University of Denver, during the Senate hearing Wednesday.

But the 100-round magazine the Aurora shooter used is another story. It probably could be banned, Keene said Thursday, because such magazines aren’t in common use. 

“It’s not very widely owned or widely used,” Keene said. “If you wanted to say you can’t have a 100-round magazine, I think the court would say ‘go ahead.’ ”

But many of the weapons on Feinstein's ban list, including the AR-15 semiautomatic rifle used by Newtown shooter Adam Lanza, are widely available and commonly used for self-defense and recreation – a situation that exempts them from a ban, Professor Kopel said.