Memo to Congress: Why the NRA's Absolutism Is Indefensible

Wayne LaPierre, Chief Executive Officer of the National Rifle Association(NRA), listens during a hearing of the Senate Judici
Wayne LaPierre, Chief Executive Officer of the National Rifle Association(NRA), listens during a hearing of the Senate Judiciary Committee on Capitol Hill January 30, 2013 in Washington, DC. The committee held the hearing with retired Astronaut Mark Kelly, husband of former Rep. Gabrielle Giffords, Wayne LaPierre, Chief Executive Officer of the National Rifle Association, and others to testify about solutions to gun violence in the United States. AFP PHOTO/Brendan SMIALOWSKI (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)

In his second inaugural address, President Obama called on Americans to confront the urgent issues of our time in light of our "founding creed," exemplified in the Declaration of Independence and the Constitution. The men who established the republic were idealists who proclaimed that "all men are created equal" and have "unalienable rights." But they were also worldly realists who, despite sharply partisan differences, understood that even creating the Constitution required vigorous debate, tough negotiation, and prudent compromise.

In fact, the Constitution would never have been ratified without painful deal-making on slavery, the relative electoral power of large and small states, and the Bill of Rights. When Mr. Obama pointedly declared that, in the face of the nation's daunting challenges, we "cannot substitute absolutism for principle," he was in part pressing his political adversaries to emulate the Founding Fathers' pragmatic approach to governing.

Among the politicians he no doubt had in mind were members of Congress who side with the leaders of the National Rifle Association in their absolutist stance on gun control, resisting any new regulation. As federal and state governments respond to growing outrage at the unrelenting gun violence destroying families and terrorizing communities, legislators cannot simply defer to the NRA's intransigence.

For one thing, although the NRA would disagree, the thousands of Americans victimized by gun crimes "deserve a vote," as the president insisted in his State of the Union speech this week. To members of Congress who oppose new gun controls, Mr. Obama said, "If you want to vote no, that's your choice." But survivors and families of shooting victims have a right to know where their elected representatives stand on legislative proposals aimed at keeping guns out of dangerous hands.

Moreover, as elected officials, these legislators have an obligation to engage in what President Obama called "reasoned debate," defending their position, explaining to their constituents and other citizens why they oppose all new gun regulations. This duty is entailed by the responsibility of representatives in a democracy to be accountable to the people they serve. Congressional friends of the NRA cannot in good conscience avoid the question of how they can justify absolutist opposition to government efforts to reduce gun crime by tightening access to firearms.

The NRA's standard defense of its absolutism is to appeal to Amendment II of the Constitution: "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." Since the Second Amendment guarantees the right to "keep and bear arms," the NRA claims, any new regulation of guns infringes on that right. But, of course, the Second Amendment does not explicitly say that restrictions on guns infringe on the right it confers. Rather, that is the NRA's interpretation of the Second Amendment, an interpretation not shared by most Americans. How might a member of Congress who invokes the Second Amendment in rejecting new gun controls support the NRA's interpretation?

Conceivably, she might argue that this interpretation if self-evidently correct, that the meaning of the Second Amendment is obvious and clearly (albeit implicitly) precludes new constraints on gun sales and ownership. But this argument is plainly fallacious. First, historically, how to interpret the Second Amendment has been extensively debated, with legal scholars advancing widely divergent constructions. Second, the framers of the Constitution knew well that the Constitution must be interpreted, which is a main reason they instituted a Supreme Court. Third, in the Second Amendment cases it has ruled on, the Supreme Court itself has been divided in its opinions, underlining the point that what the Amendment says is far from self-evident -- and therefore not self-evidently absolutist.

If a "pro-gun" member of Congress looks to Supreme Court decisions to justify an absolutist reading of the Second Amendment, she will be disappointed. The Court has stated that the right to keep and bear arms is subject to regulation -- such as prohibition of concealed weapons, sales to criminals and the mentally ill, carrying weapons in certain locations, and possessing "dangerous and unusual weapons," as well as legal constraints on commercial sales. Furthermore, the Supreme Court has handed down only two significant decisions on gun control in the last 150 years and so has largely remained silent on its constitutionality.

The NRA often asserts that the facts warrant its absolutist view. The favorite "factual" claim supposed to justify the NRA position is that gun controls "don't work," that they are "ineffective" -- and are therefore needless administrative burdens on gun owners and a waste of taxpayers' money.

Apart from the ambiguity of slippery terms like "work" and "effective," a chief weakness of this argument is that the available data lead to the opposite conclusion. In other industrialized countries with much more stringent gun laws, the rates of gun violence are dramatically lower than they are here. For instance, in the latest years for which data are available, a United Nations study found that 67 percent of homicides in the U.S. were by firearm and homicides by firearm per 100,000 people were 3.2. Contrast these numbers with those for Germany (26%, 0.20), United Kingdom (7%, 0.10), Australia (12%, 0.10), Finland (19%, 0.40), and Denmark (32%, 0.30). Such figures strongly suggest that gun regulation can inhibit gun violence. Indeed, this assumption underlies all federal and state gun control laws now in place.

In any case, does the NRA really believe that the regulation of guns has no effect on gun crimes? What research data can it cite to support that -- especially given that, since the late 1990s, congressional allies of the NRA have blocked federal agencies from doing research on gun violence? (President Obama has now reversed this policy through an executive order.)

Finally, a legislator seeking to justify an absolutist position on gun controls might appeal to popular opinion. But the trouble is that most Americans favor at least some new gun restrictions. Regarding requiring universal background checks for gun sales, according to a recent CBS/New York Times poll, 92% of Americans support it, including 93% of gun households, 89% of Republicans, and 85% of households with NRA members. Another poll indicates that 58% of Americans support a new ban on assault rifles.

A dogged pro-gun member of Congress might reply that, nevertheless, a majority of her constituents oppose all new gun regulation. But if 92% of Americans want universal background checks, there will be, at most, only a few congressional districts where a majority oppose them.

Because Americans overwhelmingly support some gun control proposals, members of Congress who oppose any new regulations must provide a very strong defense of their position. There is little reason to think that, for most legislators, such a defense is possible.