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After Shooting, Better Guidance is Needed | Insight

Many pundits and politicians will continue to assert the Constitution as the proper guide for policy-making, but instead we should look to lawfulness.

The Briefing: Return to normalcy?

  • In Uvalde, Texas, an American Tragedy
    • 21 people killed: 19 children and two adults
    • The shooter's rampage lasted a full hour unabated
    • It set a new record for deadliest mass shooting of the year only ten days following the previous record-setting massacre in Buffalo, New York
    • Both were perpetrated by 18-year-old men
  • An unfortunate turn
    • Mass shootings had been on the decline since 2017
    • It's the deadliest one in three years
    • Firearms are the most common cause of death among Americans under 24-years old
  • Abandon all hope, ye who enter America
    • Republicans accuse Democrats of politicizing the shooting
    • But it's hard to deny that gun control simply is politicized, and has been for a long time
    • Democrats---like Texas gubernatorial candidate Beto O'Rourke---have pointed to gun control as a solution
    • Republicans---like Texas Senator Ted Cruz---are arguing for an increase in armed guards and a reduction in school entrances

The Big Question: Where do we go from here?

While Ted Cruz and, impressively, others have latched onto the policy proposal of “one school, one door,” it’s plain as day that’s not a real or serious political position. The biggest problem is one Cruz, being from a state like Texas with regions warm year-round, ought to see already: lots of schools aren’t simply one building.

In states like California and Texas (the two states with the largest school populations by a huge margin) many schools are composed of many separate buildings on a single campus. In fact, that’s true of Robb Elementary, the site of the most recent shooting. To have singular, armed points of egress for each building would require something like 16-20 armed guards. Besides the practical problem, consider the psychological impact on children educated in such a prison-like environment. It’s not, shall we say, a scalable idea, even as it may be enticing in its simplicity and promise (see also: snake oil).

I do my utmost to refrain from partisanship here at Spectacles. On this issue, though, it seems overwhelmingly clear that two sides are emerging to this debate: those who wish to do something and those who wish to do nothing.

People like Ted Cruz, with plainly ridiculous proposals, are really only serious when they object to gun control. Their position is a fundamentally negative one with no serious idea of how to move forward or how to solve a problem like the extraordinary level of violence that follows from having a heavily armed population. Whatever you may think of Democrats’ affinity for gun control, it’s a serious policy position.

Of course, Republicans such as Cruz—the do-nothings, if you will—resort to appeals to constitutionality. Many democrats don’t even recommend any form of control beyond background checks and waiting periods, but even these are seen by Republicans as violations of a constitutional right.

The Theory: Lawfulness v. Constitutionality

This all points toward an interesting debate which Adam Gurri, Founder and Editor of Liberal Currents, wrote about recently: the relationship between lawfulness and constitutionality. Put most simply, a lawful society is one in which the government reliably keeps its promises, like honoring occupational licenses, rather than one which adheres unpredictably to a constitution. In Gurri’s own words, “A system in which judges sometimes make promises at odds with constitutional text, but in which those promises are then honored for decades, is more lawful than a system which faithfully adheres to a Constitution which promises the supremacy of presidential rule by decree.”

Of course, the government can make bad promises, and it often does. But frequently it’s better at least for bad promises to be kept rather than no promises be kept. If promises are not kept, those who hold power are simply arbitrary bullies where they can enforce their will, and, where they can’t, useless functionaries. Moreover, if bad promises aren’t kept, reform is liable to be meaningless, since one can’t expect that good promises will be kept either.

In Gurri’s analysis, there are areas in which the US displays remarkable lawfulness, such as occupational licensing. One might argue whether or not the rules dictating who can acquire certain licenses and how they do so are good or bad, but it’s hard to deny that we have a rather orderly and reliable system in which those who are licensed are free to practice their work without harassment. The same cannot be said of most places, like Tunisia.

However, there are other areas of our government and society which are highly lawless, with severely limited predictability or reliability in keeping promises. Gurri’s core three examples are the branches of the federal government. The Supreme Court, for example, might seem lawless, given that the death or retirement of even a single person can upend legal structures across the country. Both sides believe they rule in accordance with the constitution, but the court itself can end up undermining the government’s basic promises to its citizens by sharply altering decades of precedent.

The Takeaway: No useful guide.

In this light, it’s clear to see that America’s relationship with firearms proliferation is one of lawlessness. Though one might argue we have a degree of lawfulness in that people’s opportunity to purchase, carry, and publicly display firearms has been fairly reliably broad and unimpeded. In that sense, the government is “keeping its promises.”

However, there’s a much more fundamental promise at hand here, and that is general safety and security. There is of course the Benjamin Franklin quote which has real merit and ought to be taken seriously: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” However, Franklin is talking here of “temporary Safety,” and he would hardly have been one to deny the critical responsibility of security that lies with the state.

America may be a rather lawful nation in many respects, but as long as people cannot go grocery shopping, cannot send their children to school, cannot live their lives without fear of being subjected to senseless and devastating violence of a scale unimaginable to those who penned our Constitution, we remain profoundly lawless.

People like Ted Cruz will continue to ask you to shrink your expectations, to accustom yourself to modifying your life to accommodate the preferences of murderers and thugs, but the simple truth is that democracy cannot long survive in such a hostile environment. Not to mention, the idea that such chaos is constitutional is actually quite new.

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