Gun policy’s slippery slope

By Michael Gerson,July 26, 2012

Following the Aurora shooting, some gun-control supporters began immediately hunting through the wreckage for scraps of political advantage. That showed all the sensitivity and consideration of starting a food fight at a funeral. It is one thing to draw lessons from tragedy. It is another to hang a political banner on an occupied cross.

At the proper time, however, the drawing of lessons is appropriate. What happened in a movie theater outside Denver was not an act of God — not the moral equivalent of an earthquake or a meteor strike — but the act of an apparently mentally unbalanced man with access to destructive weaponry. The quest to separate the mentally ill from modern armaments may well be hopeless. But it is at least worth a discussion.

There are two questions to consider.

First, would tighter gun-control laws — say, one banning the AR-15-style weapon that James Holmes allegedly used — have prevented the Aurora shooting? It is a difficult case to make. A committed, intelligent mass murderer will find a way. Gun-control laws do not reduce massacres in the same manner that OSHA regulations reduce industrial accidents. Massacres are purposely monstrous violations of the law, which marginal changes in the law are unlikely to prevent.

But there is another question: Given the existence of mental illness, criminal gangs and various ideologies of violence, what is a rational design for our gun laws? How do we preserve the right of self-defense and respect the rights of sportsmen while complicating the plans of the violent? The goal of gun control, in this case, is not to prevent specific crimes but generally to limit the destructive options of criminals.

This is a perfectly constitutional enterprise. In the Supreme Court’s Heller decision — which recognized an individual’s right to gun ownership under the Second Amendment — Justice Samuel Alito took pains to point out that the court was not overturning a variety of restrictions on that right, including prohibitions against gun possession by felons and the mentally ill, and gun bans in schools and public buildings.

The guarantees of the Second Amendment are no more absolute than the guarantees of the First. The right to keep and bear arms does not mean the right to keep and bear tanks, shoulder-launched missiles or fully automatic machine guns. All gun-control policy — unavoidably, by necessity — is conducted on a slippery slope. The legal treatment of assault weapons, or of high-capacity magazines, is a prudential judgment, not a constitutional one.

Restricting general access to certain destructive technologies is difficult but not hopeless. Fully automatic weapons — the kind that keep firing until the trigger is released — are heavily regulated and difficult to obtain. Is there any doubt that if a fully automatic machine gun had been readily available at his local Bass Pro Shopsthe Aurora killer would have bought and used one?

The assault-weapons ban in place from 1994 to 2004, however, was not particularly successful. In prohibiting 19 brands of weapons (along with copycats), the law’s judgments seemed arbitrary. A gun that resembles a military rifle is not inherently more lethal than an aesthetically innocuous weapon. But the law’s prohibition of high-capacity magazines — capped at 10 rounds — strikes me as prudent. A 100-round, drum-style magazine — the kind that police say the Aurora suspect had in his AR-15 — is highly useful to someone intent on mass murder. It is less useful for an average citizen intent on self-defense, unless he fears home invasion by a foreign army.

Such laws are always a balance. In this case, the gain in public safety would be relatively small — restricting access to a destructive technology used by killers at Aurora, Tucson, Fort Hood and Virginia Tech. But the burden on gun rights would be minimal. Defenders of high-capacity magazines argue that they are more convenient at the gun range, since you can fill up a large magazine before leaving home. There is a constitutional difference between the argument “I need to defend myself from aggression” and “I’d prefer to reload less at the range.”

I am open to the idea that other measures — particularly improving the capacity of the mental health system to identify people with emotional problems — should have a higher national priority. Reasonable gun laws are not a panacea. But neither are they a threat to the Constitution. They merit a debate — driven not by ideology but by prudential judgments on public safety.

michaelgerson@washpost.com