Will anything change in the United States as the result of the massacre in Newtown, Connecticut?
Perhaps in Connecticut itself, a generally liberal state, but even then it is essential to realize that there is currently very little that legislators can do. The United States Supreme Court in 2010 held that states are constitutionally restricted in the kinds of gun control legislation they can pass. This followed on an earlier 2008 decision that interpreted the Second Amendment as guaranteeing a “right to keep and bear arms,” at least in one’s home, to all law-abiding citizens.
In both decisions, the Court was bitterly divided between five highly conservative justices and their four more moderate or liberal colleagues. The Second Amendment, like almost all clauses in the Bill of Rights, is susceptible to more than one plausible interpretation, and the majority chose to emphasize the degree to which it protected an individual’s right to possess firearms. The dissenters, focusing on the fact that the preamble to the amendment refers to “militias,” would basically have allowed government to prohibit such individual possession.
But the Supreme Court alone scarcely explains why, at the national level, it is extraordinarily unlikely that anything will happen. The reason is simple: The Republican Party relies as part of its so-called “base” on those who feel especially strongly about “gun rights” and who are, concomitantly, extremely suspicious of any proposals to curb those rights.
Republican presidential candidate Mitt Romney, who had supported gun control while governor of Massachusetts, sharply reversed his position in order to win the nomination. There is no one within the national leadership of the Republican Party who is at all open to the idea of extending the existing regime of federal regulations involving firearms. Indeed, the expression of such openness would guarantee a struggle over the renomination of any incumbent official in the next party primary.
Given that the Republicans control the House of Representatives, it is almost unthinkable that any kind of regulatory legislation could even get through a House committee, let alone reach the floor of the House and gain majority support.
Will President Barack Obama take a strong lead himself in this area? It is not likely, however sincere and moving he was in his tearful talk to the nation following the news of the massacre. During his presidential campaign of 2008, he emphasized his own respect for the Second Amendment. Like most (though not all) Democrats since the mid-1990s, Mr. Obama downplayed any talk of gun control, lest that needlessly antagonize the so-called “Reagan Democrat” swing voters he was trying to win back to his party, many of whom own guns (as do millions of other Americans).
As a matter of raw political fact, Mr. Obama almost certainly benefited from the 2008 Supreme Court decision protecting the rights of gun owners, for it essentially removed the issue from the presidential debate that year. Had the court, by the same 5-4 vote, upheld the gun-banning legislation of the District of Columbia that was at issue in the case, then it would have figured prominently in the debates. Republican candidate John McCain and his running mate Sarah Palin would undoubtedly have emphasized the degree to which they would make sure that future nominees to the Court would be far more protective of gun rights. There was a similar absence of any expressed concern about the role of guns in American culture during the 2012 campaign.
As a second-term president who will never again have to face the electorate, Mr. Obama might be willing to throw a certain amount of caution to the wind, but advocacy of strong gun-control legislation would place all Democrats in Congress in a remarkably tough political position as they contemplate their own races for re-election in 2014.
Political scientists have estimated, for example, that former president Bill Clinton’s insistence in 1994 on an assault-weapons ban as part of a comprehensive crime-control bill directly contributed to the stunning victory by Republicans in the elections later that year. That victory included the defeat of the incumbent Speaker of the House, Thomas Foley, a representative from western Washington State with many pro-gun constituents in his district.
Since that election especially, the National Rifle Association has become one of the most feared groups in American politics. Gun-rights groups in general contributed over $3-million to candidates in the 2012 election cycle, with over $2.8-million of it going to Republican candidates. At least as important as the money, though, is the ability of the NRA to mobilize its members to vote for preferred candidates. Far more of the NRA’s 4.3 million members are “single-issue” voters than are members of gun-control groups.
In several ways, then, it is a bad investment for most candidates to be strongly identified with a position that can be described as “anti-gun.”
Would the president and his party behave differently if the United States had a Canadian-like parliamentary system, where one expects prime ministers and their parties to offer cogent responses to the great issues of the day? One might well think so. But, for better and definitely for worse, the United States remains trapped in a late 18th-century system of separated powers and “checks-and-balances” that is designed to maximize the number of veto points over legislation that might significantly change the status quo.
It therefore does not matter that the president won a resounding political victory last month and that his party, defying expectations, actually increased its membership in the United States Senate. Republican control of the House gives them what might well be called a death-ray veto over any and all proposals made by the President, even if adopted by the Senate.
President Obama has said on a number of occasions that “elections matter.” The sad truth is that they matter far less in the United States than in many other countries around the world. Canadians should feel fortunate not to be enmeshed within such a remarkably dysfunctional – or, as New York Times columnist Thomas Friedman has described it, “pathological”– political system.
Whether one focuses on what is sometimes called America’s “gun culture,” traceable at least in part to the successful armed revolution against Great Britain, or on the rigidities of the American constitutional order, including the political institutions established by the Constitution, the practical conclusion is the same: The status quo, whatever its problems, is likely to prevail.
Sanford Levinson, a constitutional scholar, is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and a professor of government at the University of Texas, and the author of Framed: America’s 51 Constitutions and the Crisis of Governance.
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