U.S. can protect gun rights and public safety

After the slaughter of 20 first- graders and six adults at a school in Newtown, Conn., some gun-rights advocates are saying that if only the teachers had been carrying weapons, the gunman, firing a semiautomatic rifle, might have been stopped before killing so many people.

Supporters of this right have said for decades that more guns in the hands of law-abiding citizens would lead to less violent crime of all kinds, because criminals would be deterred by not knowing whether potential victims were carrying heat.

If students at Virginia Tech in 2007 had been allowed to pack pistols on campus, this argument goes, Seung-Hui Cho might have been stopped before he killed 32 of them; if midnight-movie patrons at an Aurora, Colo., theater in July had been armed, they could have cut a gunman's massacre short of the 12 who died and the 58 who were injured.

State legislatures all over the country have been buying the argument, with the result that by 2011 about 8 million Americans had permits to carry concealed weapons for self- defense. Only the District of Columbia and Illinois had laws on the books barring “concealed carry” (though several other states and places such as New York City have barred it effectively in practice by turning down permits for virtually everybody who applies).

Congress let a 10-year ban on assault weapons — based on rifles designed for military use, where killing is the primary object — expire in 2004, and now as many as 3.5 million of these guns may be in private hands.

Suddenly Americans are questioning whether so much easy access to increasingly lethal weapons really makes them safer. A few days before Newtown, the Republican-controlled Michigan Legislature passed a bill giving teachers the right to carry concealed weapons in schools. Four days after the massacre, the Republican governor, Rick Snyder, who had reportedly been ready to sign the bill, vetoed it instead.

That action bucked a strong trend that has lasted for many years. Florida granted its millionth concealed-carry license this week, making it more pistol-packing than any other state.

It is true that violent crime rates in the state have gone down every year since 1992, five years after the rules were loosened. In the United States as a whole, violent crime rates, including murder, which is mostly committed with handguns, are about half as high as they were 20 years ago. But is this really cause and effect?

A distinguished conservative jurist, Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit in Chicago, doesn't think so. Even though he issued an opinion Dec. 11 striking down the Illinois ban on concealed-carry outside the home as unconstitutional, he said there was no conclusive empirical evidence to prove the more-guns-equals-less-crime connection that the gun owners' lobbies are so fond of making. More people carrying guns in public isn't the same thing as more people having guns, he wrote in his ruling. He cited a study showing that gun ownership has in fact gone down somewhat in recent years.

More people who have handguns take them along when they leave home than they did in decades past. “A gun is a potential danger to more people if carried in public than just kept in the home,” Posner said. “But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid.”

He conceded that “the net effect on crime rates in general and murder rates in particular of allowing the carriage of guns in public is uncertain both as a matter of theory and empirically.” Yet his ruling gave the benefit of the doubt to the argument for carrying and put the onus on Illinois to prove the opposite: “Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden.”

The cases in the ruling — Moore v. Madigan and Shepard v. Madigan (Lisa Madigan is Illinois attorney general) — involved an Illinois woman, Mary Shepard, who had been viciously attacked and beaten in the church where she worked as treasurer. She had concealed-carry licenses in Utah and Florida, and wanted one for self-protection in Illinois outside her home there.

Judge Posner's ruling, which reversed the lower courts, was based on two Supreme Court decisions — District of Columbia v. Heller in 2008 and McDonald v. Chicago in 2010 — which found that the Second Amendment gives Americans the right to own and use weapons primarily for self-defense. That, he wrote, was at least as important outside the home as inside. The ruling was stayed for 180 days to give the state a chance to revise the law.

I think Judge Posner and the Supreme Court were right in saying the Second Amendment gives Americans an individual right to keep and use firearms. But when the Founders wrote and adopted it, the amendment was connected with a civic duty, to use those firearms for the common defense when militia duty called. Today, surely, law-abiding gun owners feel a civic responsibility to contribute to public safety, as President Barack Obama noted this week in his news conference.

Gun-rights lobbies say they do that by carrying weapons. Yet after Newtown, it is hard for most of us to understand how easy access to military-style, rapid-fire, semiautomatic weapons such as the one Adam Lanza used to kill all those children makes us safer. Even the National Rifle Association has said it is prepared to discuss ways “to make sure this never happens again.”

Justice Antonin Scalia wrote in the 2008 Heller ruling, “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Those words are worth remembering.

The main mechanism for keeping firearms out of the hands of felons and the mentally ill is the National Instant Criminal Background Check System, run by the FBI. If you try to buy a gun from a federally licensed firearms dealer and your name is on the list of disqualified buyers, the dealer will refuse to sell to you.

Yet anyone can buy a firearm from a private seller, at a gun show or elsewhere, without having to be cleared by the system, and as many as 40 percent of all gun sales are made privately. Leaving this gun-show loophole open is madness, yet the NRA has fought tooth and nail all attempts to close it.

A better system of detecting and treating people with a mental illness that makes them prone to violent behavior, and making sure their names are promptly put on the check list, could make mass shootings such as Columbine and Virginia Tech less likely to happen.

If the Newtown tragedy doesn't lead, at last, to productive dialogue on all sides about better ways to balance gun rights with the right to live in safety, then the next mass shooting will be just a matter of time.

Whitney, a former assistant managing editor and foreign correspondent for the New York Times, is author of “Living with Guns: A Liberal's Case for the Second Amendment,” published by Public Affairs last month.