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Resolved: In the United States, private ownership of handguns ought to be banned.
The Resolution and the Current Supreme Court Interpretation of the Second Amendment
The framers of this resolution meant well.
Prior to 2008, Washington, DC and the City of Chicago, including a couple of its suburbs, had bans on the possession/ownership of handguns in the home.
These bans were controversial and a lot of literature was published on their merits. In 2008, the controversy made its way to the Supreme Court in DC vs. Heller (Heller wanted to keep his hand guns), and by application, City of Chicago v. McDonald (McDonald wanted to keep his handgun). In close 5-4 decisions, the Supreme Court struck-down the DC ban as a violation of the Second Amendment in Heller and, then, in McDonald, argued that it’s decision applied applied to the states, striking down the Chicago ban.
This resolution comes from this controversy. It is well pretty written, and there are sort of strong arguments on both sides (disputes with two strong sides are usually those that make their way to the Supreme Court).
The weakness of the topic, of course, is that the Supreme Court declared these bans unconstitutional, and, as a result, no one even argues in favor of hand gun bans anymore.
Andrew Jay McClurg, Professor and Herbert Herff Chair of Excellence in Law, University of Memphis Cecil C. Humphreys School of Law, July 2013, Connecticut Law Review, Gun Control Policy and the Second Amendment: Response: Firearms Policy and the Black Community: Rejecting the “Wouldn’t You Want a Gun if Attacked?” http://connecticutlawreview.org/articles/firearms-policy-and-the-black-community-rejecting-the-wouldnt-you-want-a-gun-if-attacked-argument/ DOA: 12-7-1m p. 1782-4
This section assumes that the terrible history of white armed violence against blacks is a persuasive guide to determining present gun policy. Even with this assumption, to make Johnson’s argument work, one must exaggerate both the modern orthodoxy and the implicit ride-along fear that black citizens are at risk of being denied their right to lawful armed self-defense Johnson asserts that the modern orthodoxy of black leaders is to ban guns and reject self-defense as an option for protection. For example, he asks “how do we explain the shift of the modern orthodoxy away from the traditional support of self-defense?” After recounting a story about a black citizen whose home was broken into, followed by a three-hour delay by the police in responding, he asks “how do we justify denying the standard tools of civilian self-defense to people who live under such conditions?” He concludes his article with the assertion that “the glib assumption that the modern orthodoxy is the only authentically Black viewpoint on the gun issue is unsustainable.” As discussed below, the argument is rhetorically questionable for two reasons: (1) there does not appear to be a unified movement or orthodoxy among black or other leaders to ban guns or deny black or other citizens the right of lawful armed self-defense; and (2) even if there was, gun bans cannot happen, either constitutionally or politically.
The “Modern Orthodoxy” Does Not Support Disarming Black Citizens
Johnson’s argument depends on accepting several premises regarding the modern orthodoxy: (1) that black leaders overwhelmingly support gun bans or other strict supply-side gun control; (2) that they reject the right of self-defense and believe black citizens should surrender their fate to state protection; and (3) that there is a realistic chance of the foregoing positions manifesting themselves as law. n49 But none of these appears to be true. Some black leaders and commentators have advocated gun bans, as have some white leaders and commentators, but there is no cognizable orthodoxy or movement to that effect. Most of the calls for gun bans cited by Johnson occurred several years ago, predating the Supreme Court’s two crucial gun rulings that gun bans are unconstitutional, District of Columbia v. Heller, and that the Second Amendment applies to the states, McDonald v. City of Chicago.2 Mayors Against Illegal Guns, a coalition of more than 700 mayors, including many black mayors, “support[s] the Second Amendment and the rights of citizens to own guns.” The organization embraces a variety of reasonable federal and state gun initiatives aimed at curtailing crime guns, none of which include blanket gun bans. In a post-2012 election letter congratulating President Obama on reelection, the president of the National Urban League raised the issue of the “scourge of gun violence,” stating that it “cries out for a comprehensive new approach to community safety and crime reduction,” but the only specific measures raised in the letter were stronger enforcement of existing gun laws, reinstatement of the assault weapons ban, and an examination of disparities in the criminal justice system. Johnson’s assertion that black community “support for stringent gun laws can be inferred roughly from [Democratic] party allegiance” is oversimplified. Contrary to gun-rights supporters, few gun-regulation supporters vote based principally on that issue. Blacks align with Democrats on many issues apart from firearms policy. In any event, gun bans are not part of the Democratic agenda. In the second presidential debate preceding President Obama’s 2012 reelection, Obama endorsed Second Amendment rights, stating: “We’re a nation that believes in the Second Amendment, and I believe in the Second Amendment. We’ve got a long tradition of hunting and sportsmen and people who want to make sure they can protect themselves.” He reaffirmed his commitment to Second Amendment rights in the emotional days following the Newtown elementary school shootings, stating that “like the majority of Americans, I believe that the Second Amendment guarantees an individual a right to bear arms.” As the nation’s supreme black leader, Obama’s expressed support for gun rights would appear to undercut Johnson’s theory of the modern orthodoxy. But gun-rights supporters have never believed Obama’s commitment to Second Amendment rights. n60 His reactions to the Newtown shootings were seen by many as confirming their fears of him as a closet gun-grabber. I sized up his response much differently. First, I join gun- rights supporters in doubting the bona fides of Obama’s heart-of-heart beliefs regarding the Second Amendment. Nevertheless, in the aftermath of one of the most heart-wrenching gun tragedies in the nation’s history, with a newly engaged media and public opinion aligned behind him in a way not seen perhaps since the Gun Control Act of 1968 was passed in response to the assassinations of Robert F. Kennedy and Martin Luther King, Jr., the president’s actions ranged from modest to tepid. His only legislative proposals were to impose universal background checks for gun purchases and renew the federal ban on assault weapons and high-capacity magazines. He also issued twenty-three executive orders calling for, among other things, improvements to the national instant background check system for gun purchases, increased tracing of crime guns, making available ATF data on lost and stolen guns, and ending the freeze on gun research. As of this writing, no action has been taken on Obama’s legislative gun proposals, but let us assume (over optimistically) that all of the President’s proposals succeed in becoming law. Even in that “worst case” scenario for gun-rights advocates, none of the provisions would prevent citizens of any race from purchasing and owning firearms for self- defense. One new member of the court since its original decision, a “liberal” justice, Elana Kagan, stated that Heller and McDonald are settled law, meaning that there is no chance at all that the decisions will be overturned in the status quo.
Now it is important to understand that the Supreme Court did not say that all handgun bans were unconstitutional. In Heller & McDonald, it simply said that banning handguns that were “typically possessed by law-abiding citizens for lawful purposes” in the “home” was unconstitutional.
The Court did not repeal bans on mentally ill individuals owning hand guns. It didn’t repeal restrictions on criminals owning hand guns (Mehr & Winkler, 2014). It also didn’t repeal restrictions on possessing hand guns in certain places, such as national parks, court houses, and airports (Ibid). As very explicitly stated in the majority opinion of both cases, many gun “regulations/bans,” including those on hand guns, can be justified.
But while the Court did allow certain hand gun restrictions to remain, it did not say that the restrictions at issue in Heller & McDonald were the only ones it opposed. And while the Supreme Court has not take up additional cases related to the issue, a federal court has ruled, based on Heller, that a ban on carrying guns in public in Washington, DC was unconstitutional. And in early 2015, a federal court ruled that the federal ban carrying hand guns in interstate commerce was illegal.
So, I based on the above, I think it is fair to say that while the Supreme Court supports handgun bans that apply to certain classes of individuals (criminals, the mentally ill) and certain places (post offices, airports), it is opposed to blanket bans on gun ownership by private individuals. Honestly, I don’t think there is any other way to interpret their contemporary jurisprudence.
While the direction of current Supreme Court jurisprudence is clear, there is some ambiguity in how the resolution can/will be interpreted that will have a dramatic impact on the January/February debates. So let’s look at it closely.
Resolved: In the United States, private ownership of handguns ought to be banned.
There are a couple ways to interpret this.
The first way to interpret it is to argue that the Affirmative needs to advocate a nationwide ban on all handguns.
This interpretation is simple and is, perhaps, what the framers intended, but would require a radical alternation of recent Supreme Court interpretation of the Second Amendment and legislative action that would probably never happen.
The second way to interpret the resolution is to argue that the Affirmative has to argue for a ban on handguns in a particular place (that the guns are not banned in now) and/or for a ban on a particular type of hand gun, as the Supreme Court just said that guns commonly possessed by law abiding citizens were protected by the Second Amendment.
This second way of interpreting the resolution is much more strategic for the Affirmative in that it escapes a lot of the best Negative arguments on the topic, but it may also leave the Negative with little ground, leaving it with really no applicable arguments. At the same time, the first interpretation of the resolution requires the Affirmative to defend legislative action that would never occur and a radical reversal of recent Supreme Court precedent.
What Does the Affirmative Have to Defeat to Defend a Nationwide Ban on All Handguns?
In order to defend a nationwide ban on handguns, not only would the Affirmative have to defend legislation that likely has zero political support (I even found a card that says a ban would trigger a civil war – see below), but the Affirmative would also have to argue for a plan/proposal that includes either the overturning of a recent (2008) court decision that interpreted the Second Amendment to include a right of gun ownership for self-defense OR it would have to argue for Congress to overturn/re-write the Second Amendment to explicitly state that handgun ownership is not protected by it (rendering the Court’s decisions meaningless).
David Kairys, Professor of Law, Beasley Law School, Temple University, July 2013, Connecticut Law Review, Gun Control Policy and the Second Amendment: Response: Self-Defense and Gun Regulation for All, p. 1681-3
Disarmament has not been and is exceedingly unlikely to be a serious option in the United States. Though references to disarmament are frequently heard in the gun debate, they come from opponents of regulation-not proponents-who stir fear and rally support by regularly equating any regulation of guns with disarmament. Handguns have been banned and the public has been disarmed in some countries, mainly in Western Europe, with some impressive results. But disarmament-as well as any serious regulation of guns- runs against a steep and seemingly impenetrable wall in the United States. This is usually attributed to the power of the NRA, with its generous funding by gun manufacturers and large base of supporters, sometimes whacky but usually effective strategies, and not-so-veiled threats of violence directed at anyone who would disagree. But other wealthy, effective, and unscrupulous industries and lobbies do not do as well. Lead paint, asbestos, and PCBs have been banned, and tobacco is highly regulated. The key difference is that many Americans identify guns with our highest ideals-freedom, liberty, and, for some, patriotism-and are suspicious of gun regulation. Their moderate form of this identification has been tolerant of the NRA’s extremism. They support the NRA because it protects gun ownership, even as they favor a range of gun regulations opposed by the NRA. Reforms have been hard, to say the least, because the NRA effectively manipulates this widespread moderate version of gun identification while the opposition usually ignores or mocks it. Banning and seizure of all handguns in the United States is not a plausible or desirable option in the current or any foreseeable political and cultural context. The likely result would be armed resistance and something like a dispersed second civil war, with casualties and political division far beyond any benefits or the acceptable bounds of any leaders or governments. This is the reality of contemporary politics and culture in the United States. Whatever support there ever was for disarmament has languished in favor of more likely and less onerous options.
Of course, all of these enormous actions would produce significant disadvantages (Politics, Stare decisis and loss of court legitimacy due to massive disruption and unpredictability of doctrine, activism/minimalism, and probably even court stripping (Congressional retaliation against the Court that would undermine its authority), as the current interpretation is “settled law.”
Cumberland Law Review, 2010-11, CONSTITUTIONAL LAW–SECOND AMENDMENT–THE SECOND AMENDMENT RIGHT TO KEEP AND BEAR ARMS IS APPLICABLE TO THE STATES THROUGH INCORPORATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. Mcdonald V. City Of Chicago, 130 S. Ct. 3020 (2010).
The fact that the decision in McDonald was five-to-four indicates the debate over gun control is far from settled. The most recent appointee to the Supreme Court, Elena Kagan, expresses that Heller and McDonald are now “settled law and [that] she will follow them if confirmed as a justice.” Kagan replaces retired Justice John Paul Stephens, who issued a dissenting opinion in McDonald. Therefore, if she acquiesces in extending the rationale underlying Heller and McDonald, gun-rights proponents may have an additional vote in the majority for future decisions. However, because none of the pending Second Amendment challenges are scheduled before the Supreme Court for the October 2010 Term, it will likely be 2011, at the earliest, before Kagan has her first chance to weigh in on the issue. Until then, the States that prohibit individual citizens from possessing a firearm in the home for self-defense may be violating the Second Amendment right to keep and bear arms.
[Note: Since this article was written, Kagan has been confirmed as a Supreme Court justice]
Negative teams would weigh these disadvantages against “handgun deaths” that even a ban will struggle to solve. “Disadvantages outweigh” is an easy Negative strategy. (I will explain the DAs more later in further essays).
And this, “DA outweighs” strategy isn’t the only one the Negative has in its arsenal. While the Court struck-down the handgun ban, it also made it clear that it believed that increased regulation on handguns would likely be found constitutional, creating an excellent counterplan for the Negative that could at least address a good portion of the Negative harms. And if the Negative counterplans with the states, they can use Politics and all of the court disadvantages as net-benefits to the counterplan.
And it really only gets worse. If Affirmative debaters defend a combination of legislative bans and Court action to overrule Heller and McDonald, the Negative can counterplan with the Constitutional Amendments Counterplan and read disadvantages to court action as the net-benefits. This was a popular and effective strategy on the Suprme Court college policy debate topic. And, of course, if the Affirmative chooses to defend a Constitutional Amendment, the Negative can counterplan with legislative/court action and read disadvantages to amending the Constitution.
So, basically, I think the Affirmative is toast under this interpretation of the resolution. Despite the good intentions of the framers, the Affirmative has to defend an action that no one has advocated since these two court decisions were handed-down.
The Negative is easy. And if you want to win on the Affirmative, you need to think about how to defeat these strategies. If you can’t beat them, you won’t win.
So, what to do on the Affirmative?
I wish I had some good answers, and hopefully as I read more I will find some, but here are a few ideas.
Hope. Affirmative debaters can hope Negative debaters don’t figure this out.
Be creative with advantages. Affirmative teams should rely less on “gun violence bad” advantages and more on advantages that stem from particular plan action (if they read a plan). For example, if they argue the Court should overturn Heller and McDonald, they should argue that the Court should defer to legislatures when there is a close call on the policy issues. Stevens made a big issue out of this in his dissent in Heller. This advantage could have separation of powers impacts and a constitutional amendment counterplan, for example wouldn’t solve for it. At this point, I don’t have any more examples of creative advantages, but hopefully I will with time.
Be creative with the plan. It is arguably topical to simply overturn Heller and McDonald, arguing that the decision violated deference/separation of powers and states rights (see the federalism links and explanation in the Negative section for how to use these cards as Affirmative advantage links, depending on the plan).
Defend the other interpretation of the resolution. Affirmative teams can argue that a particular type of hand gun should be banned and/or that hand guns should be banned in a particular place.
The Meaning of the Resolution
As always, the meaning of the resolution of the resolution will be contested, and, as discussed, the potential meanings have pretty radical impacts on what arguments are relevant. Beyond that, however, let’s explore some of the particular terms.
In the United States. The term “United States” isn’t controversial, but historically there has been some controversy over how it is best to interpret “in.”
There are two ways to interpret “in” — “in” means “within” and “in” means “throughout.” Policy debaters have sometimes argued for the second interpretation as a way to limit the topic, but arguing it exclusively to mean “throughout” doesn’t make a ton of sense. For example, if I’m “in” the US, I’m not “throughout” the US. This “within” interpretation does suggest that it would be topical to simply argue that a ban in a particular place is topical.
Private ownership. I don’t think this phrase is controversial, as it simply refers to individuals own guns rather than the government.
To be. This probably needs more unpacking than I have the time/space to do here, but “to be” is a verb, meaning that action would be taken to ban the handguns.
Ban. A ban is a legal prohibition (Google Definitions). This definitions is very significant because it establishes that this is a policy topic, not really a values topic. Sure, values can be relevant to the policy question, but the ultimate question is whether or not the government should pass this ban.
Handgun. A hand gun is any gun that is designed to be used with one hand. There are many types of hand guns, including full automatic handguns. This may open up specific case ground, with Affirmative teams proposing bans on particular types of hand guns.
The Basic Affirmative Case
In the next essay, I will outline the basic Affirmative case.