(Published in Smerconish.com December 5, 2019)
Don’t Jump-the-Gun Gutting Federalism and Freedom
John Longley was raised on a small cotton and horse ranch in Tulare County, California. He graduated with honors from San Jose State College in political science and then enlisted USAF to serve with MACV in Vietnam. Upon return from service he completed a master’s program in political science, public law and public administration at the University of California, Davis. He worked for over 30 years as a city manager in California most of the time in diverse and majority-minority cities. His approach has always been grounded in community problem solving and community participation, mostly in rural areas. Upon retirement he has flown his Piper aircraft, managed airports in California and Oregon and served as commander of the Oregon Wing Civil Air Patrol – Air Force Auxiliary and interim commander of Pacific Region. He lives with his wife and 6 dogs in Keno, Oregon and enjoys writing, reading, target practicing, aviating, communicating with the family dogs, working on legislative matters for the Realtors and Chamber of Commerce, and visiting his son, two daughters and their families.
Not too long ago, former Democratic presidential candidate Beto O’Rourke was asked, “Are you proposing taking away their guns, and how would this work?” O’Rourke responded: “I am” … those designed to kill on a battlefield.
Watching the debate, I wondered what the Founders would think. I believe they would see him as a contender trying to be resolute and vigorous. Unfortunately, he was also reckless, over the line and beyond the constitutional pale. Reading “The Federalist No. 45” confirms this conclusion.
Federalism and The Federalist No. 45
In defense of the Constitution, Publius (James Madison) wrote to the people of New York discussing whether the establishment of a national union would reduce the role of state governments.
He formed his argument in response to a question:
“Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy, peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?”
Collaborative Powers and Checks and Balances Must be Maintained
To answer his question, James Madison maintained federal power would not infringe on that “certain extent” of state sovereignty. He would be surprised by Mr. O’Rourke proposing federal action to ban and confiscate firearms over a vast country and especially without an invitation from all the state legislatures.
If we are to enjoy liberty and freedom, the original constitutional vision based on collaborative powers and checks and balances must be maintained. The original-design is increasingly compelling because of the size and diversity of the country.
Article 4, Section 4, The Guarantee & Protect Clause
The Constitution’s Article 4, Section 4, clearly articulated this relationship to preclude federal protection addressing “domestic violence” without state invitation. How is it possible constitutionally for the federal government to legislate to “protect” against “gun violence” when state legislatures have not invited the protection?
Likely an answer will be that such legislation is clearly within the purview of the Commerce Clause. I believe we have lost the legitimate balancing between the Commerce Clause, which extends federal power and Article 4, Section 4, the Guarantee & Protect Clause protecting federalism being the “certain extent” of state prerogative.
The New Republic recently analyzed the Guarantee & Protect Clause, and it suggests the Clause offers a “justiciable” standard as a constitutional norm. I see it as a check and balance to the rampant, expansive Commerce Clause.
The effect of the Commerce Clause has become to pre-empt regular state activity. Instead, our nation needs to focus upon encouraging states to address the needs of their citizens, recognizing the diversity among the states.
Differences Are Broad and Deep
Austin Sarat and Jonathan Obert in the August 4, 2019 issue of Politico make the point that the differences in the gun debate spread across the country, and they run very deep. The research is finding that in many areas, guns “are woven into people’s lives in ways that go far beyond a tool. This standing suggests that the path to gun law reform won’t be as simple as liberals might hope or conservatives might fear.”
Sarat and Obert suggest that a balanced approach will be most successful. They caution against a “slippery slope” where regulations are cumulative and increasingly disruptive to those who have firearms as a significant element of their and their family’s lives.
Pew Research Center Demonstrates Major Rural/Urban Differences about Guns
The Pew Research Center paper America’s Complex Relationship with Guns (June 22, 2017) provides demographic details.
The information paints a picture where there is a difference between urban and rural. Only 29% of urban households have a gun. By contrast, 58% of rural households have a gun. To support the difference between urban and rural gun ownership, about half the urban respondents indicated their community has a negative view of most gun owners. The comparable statistic for rural areas is only 19%. For suburban residents, the statistics are between rural and urban, somewhat closer to urban.
The critical conclusion is gun owners are commonly viewed negatively in urban communities, while gun owners are generally considered positively in rural areas. This cultural perception is fundamental to why we must address issues through the federalism paradigm.
This conclusion supports the finding that for urban gun ownership, the firearm is mostly autonomous from the community structure. It is less likely to be part of daily life and the routine social interaction as it is in rural areas.
Historically, the federal government is ineffective in addressing community-level social issues. We can all recall the profound failure of Reconstruction, Eighteenth Amendment Prohibition, and of the “War on Drugs.” These failed because there was little connective-tissue between Washington’s governmental agents and the people in their homes and neighborhoods.
Several years ago, I started preparing spreadsheets about firearms in the states because I wanted to understand the often-contradictory material I was reading. I found that the experiences among the states with gun homicides have been much different.
The proponents of federal, centralized gun control advertise the adoption of specific measures that will resolve the current occurrence of mass shootings and “gun deaths” in general. I could not confirm this assertion based on what is happening in the states.
My spreadsheet analysis established states such as New Hampshire, Maine, Idaho, and Oregon have relatively low levels of gun homicide (between .6 and 1.2 per 100,000 based on 2016 data). They also have low gun control grades of D+, F, F, and C, (grades assigned by Legal Center to Prevent Gun Violence). This inconsistency is contradictory to the prevailing wisdom of the gun control advocacy literature.
In much of the gun control advocacy literature, I have read this is not disclosed. Instead, gun control advocacy authors use the “gun death” standard which is connected to their advocacy against “gun violence.” Often, states having low gun homicide rates have high suicide rates. Because there are so many more suicides than homicides, they dominate the “gun death” statistics, which is central to their advocacy attacking “gun violence.” They run up the numbers and distort the meaningful facts for presumably, a political end.
Using “gun deaths” masks the useful truth. About half the cases of suicide nationwide are gun suicides, and we should focus on addressing all suicides as a compelling public health issue not distorting them through appropriation to the gun debate under the advocacy heading “gun violence.” Using the phrase “gun deaths” misleads and makes political points while obfuscating and conflating the truth. It obscures driving us away from the focus necessary for solution. By understanding the entire reality and focusing on the special features, we can make enduring progress against all homicides and all suicides.
Applying Gun Control Talking Points Does Not Necessarily Prevent Gun Assault
The claim is centralized federal gun control prevents gun homicides. The statistical information does not support the conclusion. My Excel spreadsheet correlation between the standard gun control measure legislated in states and lower gun homicide rates is only 20%.
Recently for continuity, I checked the findings based on 2016 data with more recent CDC and FBI data.
States More Effective at Addressing Gun Homicides Than Federal Government
Seventeen states had a lower proportion of firearm homicides comparing data between 1999 and 2017. Using grades granted by the Giffords Law Center for the quality of legislation, each grade category had instances of lower homicide rates.
The category found most favorable by Gifford’s “A and A-,” 73% of the seven (7) states have lower rates. For the next group, “B+, B, and B- “only 25% had lower rates. For “C” grades, it calculates as 43%, which is the same as “D” grades. For the category of “F,” which is half the states, 20% had lower homicide rates.
The case for gun control advocacy organizations is that some measures will consistently reduce assault by firearms. The data does not continuously support the assertion. We find lagging success in states graded in the “B” range, compared to states with fewer gun control measures classified in the “C” and “D” ranges. Even 20% of the “F” range states had lower gun homicide rates. There is little consistency which helps explain the low correlation.
A Federalism Solution to Gun Homicides
The general rate of gun homicides has declined from 7.0 per hundred thousand in 1993 to 4.5 in 2017 per hundred thousand. Undoubtedly much progress has been from improved policing and programs developed to address gun homicides.
The media has reported specific intervention programs such as that in California’s Bay Area, which has directly addressed and reduced gun homicides. Though California has the nation’s most stringent gun laws, the reduction in gun homicides has not been uniform across the breadth of the state. Some areas are much more deadly than others.
The specific success of the Bay Area is a result of targeted investment to intervene by providing better options for stressed individuals and communities.
Four Affirmative Federalism Firearms Principles
Using the Bay Area experience as inspiration, within a federalist system, several general approaches are suggested. For example:
1. National interstate commerce efforts should address controlling the interstate movement of firearms through active efforts by each state but also potentially developing federal licensing for conceal carry interstate firearm possession. The Commerce and Guarantee & Protect Clauses must guide us as a priority to assure federal action is supportive of state efforts collaboratively throughout the Republic to stop the illegal importation of firearms between states while standardizing, controlling and facilitating the legal carry. Collaboration could, in this instance, could provide very useful results.
2. While many groups have contributions, the involvement and funding of local sheriff departments nationwide to conduct firearm mentoring and supervision must be the focus. As in the Bay Area, this should be expanded to include local community-based groups.
3. Legal firearm owners must understand they are accountable for the use of firearms. Developing a regimen through sheriff departments emphasizing safe and competent use, but not micromanagement and exclusion, as a priority.
4. There is controversy about the success of conceal-carry permitting as the following link documents. Some locales are experiencing conceal-carry resistance, while in other jurisdictions, local law enforcement officials have emphasized the beneficial results. A priority is developing a set of best practices to expand concealed carry within the states and as a goal in interstate commerce.
The Guarantee & Protect Clause’s Pathway
With the development of the 24/7 media, we have a national forum. This forum encourages action at the highest level of government. National legislation remains problematic because we do not have the connective tissue to implement it fairly.
Over time national happenings have gathered more attention and force. Wars, national disasters, economic crises, and, most recently, civil rights have especially underscored this focusing. Though the momentum has been with progressive consolidation, the original design retains much truth.
The Guarantee & Protect Clause must provide a path for balancing a state/federal partnership regarding firearm safety.
We are a union of states with their communities. We have substituted our Constitution for the King and have a proven constitutional Republic if we can keep it. Ultimately the well-being of these communities is local actions requiring local legislation. We should support the states with their efforts to reduce firearm homicides rather than pre-empt their initiatives.
Time has proven pre-emptive federal action will be less effective and more disruptive than trusting in the states and the People.