The Second Amendment has been incorporated and, whatever the Connecticut Court would like to believe, it protects the right of Americans to bear arms.
What is the cause of our polarized politics? Some blame one party or the other, and that is certainly plausible. But I wonder if the problem goes deeper. Our two parties are fighting for the future. We are polarized because we disagree about what it would mean to make America better. Beyond that, the arguments are so extreme because in our post-modern age we cannot agree about what it means to be reasonable.
This idea occurred to me at a conference I recently attended at NYU’s Brennan Center. The conference was on the Second Amendment. Senator Chris Murphy of Connecticut gave the keynote. His comments help us understand how polarized our politics have become, and why, alas, that may not change soon.
Senator Murphy opened his talk by noting that Democrats and Republicans are having different conversations about guns. Given that start, I was looking forward to a talk that described the two conversations—their premises, logic, favorite bits of evidence, etc.—and then suggested how the two sides might be draws closer together. Boy, I was mistaken. What followed was a hyperpartisan rant.
After noting that polls show that 80% of the public approves background checks, why, he asked, does Congress not do what the people want? His answer? The Republicans are now “a neo-anarchist party.” In a world of economic anxiety, he noted, people are looking for someone or something to blame. Essentially he agrees with President Obama that “they cling to their guns and religion.” The Republicans, he suggested, conduct an “all out, no holds barred, assault on government.” Meanwhile, the gun industry and the NRA “create paranoia about government that helps to create gun sales.”
Ultimately, he suggested that “Republicans need to come down from the clouds,” and he thinks that the Democrats must “help them solve their own problems.” That this extreme, perhaps even paranoid analysis was delivered in a mild, collegial voice reminds us about how important it is to look past tone to content. It also demonstrates how polarized Washington is nowadays. If that’s how Senator Murphy understands Republicans, why would they even bother talking to him? Nay, why is it reasonable to expect that any common ground could be found?
It is possible that Senator Murphy is being shrewd. The most effective demagogue is one who seems not to be one. He knows that compromises with the Republicans can be had, but they would not suit his agenda, and he might open himself to a primary challenge—as is happening now on the Democrat side in Maryland over compromise on the gun issue. But I think he really believes what he says.
Senator Murphy was speaking at a conference at NYU’s Brennan Center, not exactly a place full of NRA supporters. The law professors in the audience actually seemed to be more moderate and more open to compromise than the Senator. They asked about some specific compromises. Why not, for example, trade “Constitutional Carry” for more background checks, one audience member asked? Murphy’s answer was puzzling. He said that the bill he supports is already a compromise. Why, he asked, should he compromise more? But why were his compromises reasonable, and more compromises not reasonable? He did not say. He sounded like he was not even capable of understanding such a question.
At the moment, licensed gun dealers must conduct background checks before all sales, even at gun shows. Gun collectors are not required to do so. Roughly 80% of sales have background checks under current law. The law Murphy supports would require background checks on almost all sales—except from, for example, father to son. If getting the background check number close to 100% is so important, why not trade it for something the GOP wants? Or, why not close the “loophole” further, but still allow, for example, a citizen to send a single gun to a friend without a check? I rather doubt that 80% of the public wants a law as extreme as Senator Murphy supports. (And recall in this context that “loophole” is itself a partisan term. It implies that the normal course of things is for all transactions to be subject to regulation, and when one is not so subject it is an exception—that is not the only way to see it).
Senator Murphy was also asked about Senator Coburn’s proposed amendment to the bill that would have required background checks, but would have allowed individuals to undergo a background check on their own, and, after the check, the individual would receive a certificate and a code number that allowed him to purchase a gun in the next 30 days. The proponents of gun control did not like that approach. Logistically it would be difficult, but as USA Today notes, “Another problem for gun control advocates: There would be no lasting record of the sale.” Senator Murphy, again, said that he had already compromised in the bill he supported, and he saw no reason to accept further compromise. Why not?
If the Republicans truly are “anarchists,” then they would, in fact, reject the compromises mentioned by the audience. Why not, therefore, give the GOP a chance to prove just how unwilling to compromise they are?
The trouble is not that compromise is impossible, but that the compromises that could pass are not, in fact, acceptable. The distance between the parties is too great. It might also be that, as we delegate more and more legislative authority to the administrative bureaucracy in the executive branch we are creating legislators who are less skilled in the art of compromise, and have a weaker understanding of what it would entail. I am reminded of then Senator Obama’s comment, “you have to be the one who’s dictating how the compromises work.” That sounds more like the attitude of an activist community organizer than it does the guy we the people have hired to do the people’s business. And, it is unlikely to lead to moderation on either side. And it might be that the incentives in our system favor ranting over legislating—perhaps, in part, an effect of the transfer of so much law writing to the administrative branch.
Beyond that, we now have parties that are more unified in matters of principle than we used to have. That means that each side is fighting not for a particular bill, but instead is trying to line up future bills. Recall in this context that State Senator Obama opposed a law securing the right to life of a child who had survived an abortion attempt? As a lawyer, he understood that such a law might establish a precedent that the baby was, in fact, a person entitled to constitutional protection even before it is born—they very thing that the abortion rights side denies, and the very thing that some pro-lifers wished to establish in the bill. That might be behind Senator Murphy’s opposition to the Coburn amendment. It allows all the gun checks Murphy wants, but it would also, by not keeping a record of all sales, move policy away from gun registration, and perhaps ultimately, gun confiscation. The fight over Obamacare was similar. Had President Obama wanted, he could easily have gotten a bunch of GOP votes for a bill that solves the pre-existing condition problem and added 10 million people to the health insurance roles—essentially what Obamacare did. But to get GOP votes, he would have had to jettison the structure of Obamacare, which steers American health care in the direction of single payer, President Obama’s favored policy.
Similarly, given the contrast between the language the Left uses to describe the evils of guns in society and how little the proposed laws would, in fact, do to reduce gun violence, it is not unreasonable to conclude that the goal (or perhaps merely the telos) is confiscation—for no other solution would, as a practical matter, achieve the goals that the rhetoric demands. (And in a country like the U.S. it is probable that even that would not work).
The gulf between the sides in this debate makes me wonder if our political culture is dividing because common ground is disappearing. Consider “Stand Your Ground” laws. It is no surprise that they came up at one of the panels in a conference on the Second Amendment. These laws, as I understand them, were created because many Americans thought that legislatures and courts had narrowed the cases in which a citizen was allowed to use force too much. These bills tried to restore the traditional “reasonable man” standard. But in an era of post-modernism, and in an era in which what it means to be human is up for discussion, can there be such a standard? Absent agreement about such things, more generally, is any moderate politics possible? If we cannot even agree upon who is a male and who is a female, I fear that the answer is no. We cannot recognize what a reasonable man standard is when we do not agree about what reason is. Similarly, it is difficult to have a politics based upon the rights of men when we do not agree about what it means to be human.