The Danger of “Common Sense” Restrictions on Constitutional Rights
Dec. 11, 2015 (Mimesis Law) — In the wake of recent mass shootings, the call for gun control has become frequent and loud. The New York Times offered a front-page editorial calling for change. There has been thoughtful discussion of the issue. There has been meaningless discussion of the issue. There are those who say the Second Amendment is absolute and those who say it isn’t.
The easiest way to attack the Second Amendment, like other constitutional rights, is the use of the term “common-sense.” Though the dictionary has a pretty good definition for “common sense,” that definition isn’t how most people are using it. The Merriam-Webster online dictionary defines common sense as:
The ability to think and behave in a reasonable way and to make good decisions.
But the term “common sense” is being used these days to urge avoidance of thinking in a reasonable way. The appeal to common sense has become a suggestion to abandon reason and do what feels right. Even if the topic is a constitutional right, common sense says abandon it, limit it, or do whatever else might feel good.
The New York Times’ editorial uses all the buzz words that precede a call to forget thought and act on feelings. “Moral outrage.” “A national disgrace.” Any solution will do, as long as someone is doing something:
Opponents of gun control are saying, as they do after every killing, that no law can unfailingly forestall a specific criminal. That is true. They are talking, many with sincerity, about the constitutional challenges to effective gun regulation. Those challenges exist. They point out that determined killers obtained weapons illegally in places like France, England and Norway that have strict gun laws. Yes, they did.
But at least those countries are trying. The United States is not.
In other words, the proposals won’t stop the problem that has triggered all of this debate. But they will allow the country to pat itself on the back and think, “We didn’t solve a problem, but we tried and that is all that matters.”
But that isn’t all that matters. The Second Amendment is a constitutional right. Tinkering with the United States Constitution is an invitation to disaster. And that is exactly what the call for common sense gun control is doing. As Ken White pointed out this week, we don’t get to pick and choose our constitutional rights.
Emily Badger of the Washington Post doesn’t have any problem tinkering with the Second Amendment. She takes the position the Second Amendment, like all rights, can be limited:
This claim — prominent among gun-rights advocates — implies that the Second Amendment establishes not just a right to own guns, but a right that the government cannot legally limit. The problem with this argument: None of our rights work this way.
The courts often do limit constitutional rights. But that is not something to be proud of. It is, instead, something to be very wary of. People should not trust attempts to limit constitutional rights. They should question them.
Badger uses the First Amendment and the Fourth Amendment as examples of constitutional rights that have been limited. And those are good examples, but not in the way she intended. Using these amendments for comparison, look at what happens when “common sense” is used to limit constitutional rights.
The First Amendment protects speech. Good, bad, or ugly. Yet a significant number of people in this country are interested in getting rid of free speech. They only want to hear speech that makes them feel good and safe and valuable. They don’t want to ever be offended. They don’t want to hear the voice of dissent, because it is upsetting. This is not some fringe movement. This is the position of influential campus organizations at nearly every major college in the country. Should their “common sense” ideas be applied to free speech rights?
The same concern applies to the Fourth Amendment. As a judge from the Fourth Circuit Court of Appeals said in a dissent several years ago, the right to be free from unreasonable search and seizure is dying a death of a thousand cuts. The reason why the police can’t randomly conduct searches of anyone they feel like searching is growing weaker as “common sense” dictates rights. Again, in applying common sense to unreasonable search and seizures, whose common sense should be applied?
The problem becomes more apparent when “common sense” gun control is described. White House Press Secretary Josh Earnest spoke this week about some common sense gun control measures.
“I think what the President would say based on his comments from Sunday night is that we are seeing extremist organizations, including ISIL, trying to radicalize people in the United States to essentially mimic the tactics of other mass shooters in this country. So, there certainly is a national security benefit to closing the gun show loophole or reinstating the assault weapons ban,” Earnest said. “There is such profound frustration on the part of the President that Congress hasn’t taken common sense steps that would make it harder for those who shouldn’t get guns from getting their hands on them. The suggestion is not that we can stop every incident of violence in this country but if there are some common sense things that we can do that will at least make some of them less likely, then why wouldn’t we do it.”
Earnest and President Obama are just looking for some “common sense.”
I’m talking about common sense measures like making sure you can’t avoid a background check just by purchasing the gun over the internet or even reinstituting the assault weapons ban that would prevent or at least reduce the likelihood that weapons of war end up on our streets,” Earnest continued about the potential of President Obama issuing an executive order on gun control.
Earnest also pushed for universal background checks and for Congress to pass legislation banning anyone on the terrorism no-fly list from being able to purchase a firearm.
Three things appear to be on the President’s mind: reinstate the assault weapons ban, ban people on the no-fly list from owning guns, and expand background checks.
The assault weapons ban never really did anything. Guess what? It’s not going to do anything the second time around, either. The no-fly list is a disaster. It should hardly be used to keep people from flying, much less anything else. Background checks might actually be a reasonable measure, but will that really stop criminals? Did outlawing drugs make them unavailable? These ideas are not going to accomplish anything. They only make it feel like an effort is being made.
People, including the President, get frustrated that the Second Amendment bars strict gun control measures. But constitutional rights are not matters of convenience. In fact, they are often inconvenient. That inconvenience is not a license to play with them until everyone is happy. To the extent common sense means a majority of people imposing their will on the rest of the country, that is exactly what the Bill of Rights was intended to protect against.
“Common sense” gun control is not just ineffective, it is dangerous. It sets the precedent that when the loudest voices use the biggest tragedies as a bully pulpit for meaningless change, constitutional rights fall by the wayside.
Last week I wrote the answer might be some common sense from our leaders. But what the country really needs is some constitutional sense.