Last week, the President made remarks in Denver, speaking about the recently-enacted gun control laws in Colorado. Although much of the President’s appeal was made to emotions–tugging at heart strings for those killed by gun violence–he also wove in several constitutional themes.
First, he praised Colorado, a state with a strong gun-rights tradition (it’s no New Jersey) for passing these laws.
Every day that we wait to do something about it, even more of our fellow citizens are stolen from our lives by a bullet from a gun.
Now, the good news is Colorado has already chosen to do something about it. (Applause.) Look, this is a state that has suffered the tragedy of two of the worst mass shootings in our history — 14 years ago this month in Columbine, and just last year in Aurora. But this is also a state that treasures its Second Amendment rights — the state of proud hunters and sportsmen. And, by the way, the Governor wanted me to remind everybody that there is outstanding elk hunting here in Colorado. (Laughter.) There’s a strong tradition of gun ownership that’s handed down from generation to generation, and it’s part of the fabric of people’s lives. And they treat gun ownership with reverence and respect.
Of course, politicians love talking about hunters and sportsmen. However, these interests are largely orthogonal to the Second Amendment, which at its core protects the right of individual self defense.
Second, the President continues, and notes that there need not be a conflict between these interests.
And so I’m here because I believe there doesn’t have to be a conflict in reconciling these realities. There doesn’t have to be a conflict between protecting our citizens and protecting our Second Amendment rights.
Of course, these interests are always in tension. That tension is inevitable due to what I have called the competing social costs. All too often, politicians and many judges only see the social costs of the exercise of liberty on society–that is, the risk of gun violence from people owning guns. The social cost that remains largely hidden is the costs of the exercise of governmental power–that is, the risk to individual freedom of restrict access to firearms.
“Protecting our citizens” (liberty costs) is in tension with “protecting our Second Amendment rights” (safety costs). That’s the point. And resolving this tension is the key to understanding the future of the Second Amendment.
Third, the President implicitly addresses safety costs, but with something of a strawman.
One last thing I’m going to mention is that during this conversation — I hope you don’t mind me quoting you, Joe. Joe Garcia, I thought, also made an important point, and that is that the opponents of some of these common-sense laws have ginned up fears among responsible gun owners that have nothing to do with what’s being proposed and nothing to do with the facts, but feeds into this suspicion about government.
You hear some of these quotes: “I need a gun to protect myself from the government.” “We can’t do background checks because the government is going to come take my guns away.”
Of course there is a fair share of people who are stockpiling ammo and guns to prepare for a revolution against the Federal Government. These are a very vocal minority among gun owners. However, the fact that Obama is even addressing the costs to individual freedom underscores the fact that there is no conflict between the liberty costs and safety costs. And, to be candid, there are far too many in the gun control movement who would be perfectly content to confiscate all guns, that this fear is not entirely unfounded–though practically speaking (as Adam Winkler notes in his book Gun Fight) this can never happen in the United States, as it has happened in most nations.
Fourth, the President continues with another rejoinder to the “fear the government” argument..
Well, the government is us. These officials are elected by you. (Applause.) They are elected by you. I am elected by you.
I doubt many gun enthusiasts voted for the President, but to the victors go the spoils. But let’s be more precise. Which government are we talking about? The federal government or the state governments? In our federalist system, various states can take various approaches to gun control (so long as they do not fall below the floor set by the Second Amendment). But a one-size-fits all federal policy is something of a different beast.
Fifth, his last thought is inherently contradictory.
I am constrained, as they are constrained, by a system that our Founders put in place. It’s a government of and by and for the people.
The Constitution is aimed at dividing the powers among the three branches of the government, and between the states, for the exact purpose of *not* making this a government of, by, and for the people. The founders were so skeptical about the people, and what their inflamed passions could wrought, that many procedural roadblocks were built into the Constitution: the electoral college, appointment of Senators, bicameralism and presentment, due process etc, the declaration-of-war power in the Congress, the Amendment process. All powers are diffused far and few between. However, the President has been less then amenable to some of the structural roadblocks on the Constitution (undeclared wars, drone-based assassinations of U.S. Citizens, enforcing a law that he determined is unconstitutional, etc.).
The very purpose of his speech in Colorado, the site of both Columbine and Aurora, to fan the passions, and use that anger and fear to push through legislation that would not otherwise be enacted. Gun control was nowhere on his 2012 legislative platform. To quote Rahm Emanuel, a tragedy is a terrible thing to waste.
Of course, Obama is citing to Lincoln’s Gettysburg Address, given after the bloodiest battle of the Civil War: This is a curious citation if one is talking about the founders of our Constitution (at least the one drafted in 1787). Our founders did not create the Constitution that Abraham Lincoln spoke of. Indeed, to save the nation during the Civil War, Lincoln knowingly flouted and ignored the structural protections that our founders gave us.
I would say that this is not the image Obama seeks to emulate, but in truth, his unitary-executive style would make Lincoln proud. That isn’t a compliment.