Synopsis: How Much Harm Guns Cause Cannot Serve To Restrict The Right To Keep & Bear Arms. Constitutional Rights Are Not Analyzed On A Risk/Utility Basis. From A Legal Perspective, The Amount Of Societal Harm That Comes From The Exercise Of A Constitutional Right Does Not Matter, And That Is A Very Good Thing.
Related Gun Control Argument: “Guns cause too much harm, people have a right to feel safe. Your right to carry a gun isn’t worth all the harm it causes. We need to institute [insert gun-control measure being advocated, such as more background checks, training, fees, etc.] to prevent these bad things from happening.”
Argument in Support of Synopsis:
The right to keep (which is own) a firearm is a fundamental constitutional right under the US Constitution. Further, the right to bear (which is carry) a firearm is a fundamental constitutional right under the state constitutions of dozens of states. A “fundamental right” is a right, generally found in the Bill of Rights, that is “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” Other fundamental rights include the right to due process, right to freedom of speech, freedom of religion, right to privacy, right to marry (and procreate), right to interstate travel, etc. All fundamental rights are equal in the law, no single right takes priority over another.
The United States Supreme Court has ruled that the types of weapons Americans have a fundamental right to own are “all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” The argument that certain firearms should not be protected because the founders didn’t envision them at the time the constitution was written will be the subject of a future article, but suffice it to say that argument is severely flawed. The US Supreme Court has responded to that argument as follows:
“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
A common theme amongst those seeking further gun-control is to point to the amount of harm that results from a particular incident involving firearms (such as a mass shooting) and use that harm as evidence that gun-rights need to be further regulated. However, the US Supreme Court has squarely addressed this argument, and emphatically rejected it:
“[Gun control advocates] maintain that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety. And they note that there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries. The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category. [Gun control advocates] cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.” (emphasis added).
If we are going to limit constitutional rights based on the potential societal harm they may cause, then logic dictates we should prioritize them in order of harm. Consider for a moment if the same justification put forth in favor of gun control (that the right must be restrained until harm is ameliorated) were to be applied equally among all fundamental constitutional rights. Consider the harm caused by the below constitutionally protected rights. Read them. Think about the comparisons. Then ask yourself if you truly feel constitutional rights should be judged the way you are proposing.
- Use of The Internet: The use of the Internet is generally protected under the First Amendment to the US Constitution. There are an estimated 1.5-million cyber crimes committed each year in America, costing Americans a staggering annual total of over $18,000,000,000 in credit card fraud alone. Tens of thousands of child sex crimes, and the distribution of millions of images of child pornography, occur online each year in this country. When discussing the harm the internet causes, the US Department of Justice said the following, “[t]he expansion of the Internet and advanced digital technology lies parallel to the explosion of the child pornography market. Child pornography images are readily available through virtually every Internet technology, including social networking websites, file-sharing sites, photo-sharing sites, gaming devices, and even mobile apps.”  Ask yourself what you use the internet to accomplish each day (checking social media, checking bank account balances, sending emails), and then ask yourself if your right to do those things is worth the millions of crimes, including the sexual exploitation of thousands of minors, that occur on the internet each day/month/year?
To draw an analogy, gun owners in Illinois must complete a 16-hour training course, submit to a background check, register with the state, and pay hundreds of dollars for the right to bear arms. Shall we begin requiring similar 16-hour Internet safety courses, costing hundreds of dollars, criminal background checks and require registration of individuals who are using the Internet? Shall we institute “internet free times/zones” in places where Internet crimes are most likely to occur (for example, after 10pm, or inside of bedrooms), making it prohibited by law to go online in those areas/times? You may respond, “of course not, I am not engaged in illegal conduct on the internet so why would my rights be restricted because of the actions of a malfeasant minority of internet users?” If you responded that way you would be correct in your logic, and now you are beginning to understand the perspective of gun owners.
To draw another internet analogy. One may ask why you need high-speed internet? It can logically be assumed a 56k (or even 19.2k) modem would provide normal civilians with sufficient internet access to accomplish their daily tasks. Higher speed (more dangerous) internet access should be limited only to government and military applications. It is irrefutable that high-speed internet is the internet speed of choice for cyber criminals and pedophiles. Why not restrict access to these more dangerous internet speeds to people who need it? This is the logic used for banning high capacity magazines and other “assault” style weapons, why not use it in this context as well?
- Right to Due Process: The US Supreme Court has continually upheld due process rights, which include the Fifth and Sixth Amendment rights to a fair and speedy trial, as well as the right to have certain evidence excluded at trial. These rights supersede any and all harm they may cause. “The exclusionary rule generates ‘substantial social costs,’ which sometimes include setting the guilty free and the dangerous at large.” During Miranda – the case that gave rise to the Miranda Warning – the court upheld the requirement that officers inform civilians of their rights even though, “[i]n some unknown number of cases … it will return a killer, a rapist or other criminal to the streets … to repeat his crime.” When I was a prosecutor I saw this first hand. Criminals are set free daily, many of which have committed, and often confessed to, serious crimes. All because a filing deadline was missed, evidence was excluded, or testimony was not properly obtained. Despite all this harm, however, due process rights persist. Shall we reevaluate them?
- Right to Privacy: The right to be left alone, as it has been called, is one of the most universally accepted rights we have. The people have the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The government cannot enter your home without a warrant, monitor your activities, and so on without a warrant. The government can’t even prosecute you for crimes, including murder, they can clearly prove you committed in your home if they obtain the evidence in contravention to your Fourth Amendment rights. Consider, however, the amount of bad things that happen behind closed doors in America. Domestic violence, sexual abuse, child abuse, neglect, drugs, murder. The vast majority of these crimes do not occur in public, they occur in private. Why then, using the gun control logic, do we not institute 24 hour monitoring of private places? Imagine a government issued Amazon Alexa style speaker that monitors your daily conversations, alerts when signs of abuse or illegal activities are heard, and then summons the police to come to your home. Is your right to privacy in your home more important than the millions of serious crimes that occur in homes each year? Yes, of course it is, but if you are allowing yourself to actually think about this analogy you are now better understanding the flaws in the logic used to restrict firearms.
- Right to Marry/Procreate: Finally, for the last example, I will mention the most dangerous and harmful right Americans have, the right to make children. Although not explicitly contained anywhere in the constitution, the right to marry and have children is accepted as one of the most fundamental rights we have (with the right to marry being specifically ruled on recently by the Supreme Court). You do not need a permit to make babies. You do not need to demonstrate you are a responsible and capable parent to make babies. There is no limit on the number of babies you can make. There are no laws requiring you to be sober when making babies. There are no tests, trainings, or other qualifications to be eligible to make babies. There are also no restrictions on what you can teach your babies. I could conceivably make 150 children, teach them all to be terrible, violent, racist, sexist and otherwise awful people, and as long as I keep them moderately fed and clothed, the government will not take them from me. Consider, however, the amount of societal harm that comes from bad parents and irresponsible procreation. I will proffer that there is no act that results in more harm to society than irresponsible procreation. However, despite all of that, there are relatively no restrictions on this activity. Two drug addicted 12-year olds can make babies in this country. Why? Why do we not mandate required parenting classes, drug tests, financial disclosures, procreation permits, home inspections, etc.? Why don’t we put people in jail who make babies without having the proper permits, training, insurance and government issued license? Adoption requires many of these things, but procreation requires none. Why? The reason should be obvious by now. Even though the right to procreate has infinite potential societal harm, it is a fundamental right nonetheless and is not subject to indiscriminate restriction simply because of the potential harm it may cause.
Those still not convinced by this logic will rebut by saying something along the lines of, “but when was the last time any of those rights resulted in [insert number] of children being killed?” That question, of course, is short sighted and ignores the fact that restricting any number of constitutional rights could prevent mass shootings. If we disregard due process and the First Amendment we could put people in jail the moment they post a threat on the Internet (the way the recent Florida shooter did), thus preventing many of these tragedies. If government cameras monitored inside a shooter’s home, maybe they would have caught them plotting. If a warrant wasn’t required police officers could simply enter someone’s home and search their home/computer any time they receive a tip that someone might be dangerous (like the FBI received a tip for the Florida shooter).
The reality is those seeking more gun control aren’t bad people, and they aren’t unintelligent. However, as demonstrated by this article, this logic being used to promote further restrictions on the fundamental right to keep and bear arms is flawed. It cannot be accepted or promulgated.
Gun control advocates want to protect children. Pro-gun advocates likewise want to protect children. Let us put aside our cognitive bias and look at things as they truly are. People are all dramatically different and similar at the same time. Psychologists have soundly demonstrated human beings can look at the same thing, and see very different things, often even missing something that should be completely obvious to anyone. Einstein, while pondering why people think the way they do, noted that people find difficulty understanding simple concepts “when an experience comes into conflict with a world of concepts already sufficiently fixed within us.”  It is time to put aside that world of concepts and accept truth for what it is.
I am not making an argument, in this article, that guns make America safer (that argument merits its own discussion). Instead, I am simply stating that it does not matter if guns make us safer, or less safe, in the eyes of the Constitution. Of course it matters from a perspective of compassion, humanity and emotion, but Constitutional rights are not evaluated subjectively and do not care about the compassion or emotion of those who exercise them. They exist independent of the harm they cause and they persist in their course even if they harm us all. That is the nature of fundamental rights, and until we all understand that simple principle, we cannot have any degree of productive discourse.
Phil Nelsen is a nationally recognized firearms law attorney, expert witness, college professor, author and co-founder of Legal Heat, the nation’s largest firearms training firm.
Legal Heat offers CCW classes nationwide, and also publishes the industry leading Legal Heat 50 State Guide to Firearm Laws and Regulations which can be downloaded on iTunes, GooglePlay and Kindle App stores. You can purchase the paperback version of the Legal Heat 50 State Guide or sign up for a class at https://legalheat.com
 Duncan, 391 U.S., at 149, 88 S.Ct. 1444
 McDonald v. City of Chicago, Ill., 561 U.S. 742, 767, 130 S. Ct. 3020, 3036, 177 L. Ed. 2d 894 (2010)
 D.C. v. Heller, 554 U.S. 570, 582, 128 S. Ct. 2783, 2791–92, 171 L. Ed. 2d 637 (2008)
 D.C. v. Heller, 554 U.S. 570, 582, 128 S. Ct. 2783, 2791–92, 171 L. Ed. 2d 637 (2008)
 Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)
 Miranda v. Arizona, 384 U.S. 436, 517, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)