Distortions and manipulation in the gun control debate

I was sent a link to an article in a forum for special operations soldiers that today published a letter signed by a thousand Army Special Forces (Green Berets) soldiers. The letter is essentially a restatement of standard arguments framed by the prestige of elite soldiers, but little is added to the debate other than a clarification on the nature of assault weapons.

Here is the letter: Protecting the Second Amendment – Why all Americans Should Be Concerned

As the gun control debate twists through the typical maelstrom of American politics, we get a lot of these statements on both sides that mostly just rehash a list of all the big talking points - usually from writers with no special expertise or background in policy or law. I've read some very good arguments from legal and policy wonks on both sides of the debate, covering everything from the potential efficacy of regulations in the U.S. and around the world to the precise constitutional parameters within which regulations might be upheld.

Wrapping an argument in the flag or bolstering it with professional credentials has become a common tactic, and it's often a powerful one. Cops, soldiers, doctors, nurses, mayors, and many other occupations have professional associations that have published position papers which purport to be the "opinion of people who should know." But oftentimes they play fast and loose with their credibility by failing to properly account for the facts, and the letter from Green Berets is no exception. So what follows is a bit of a takedown of the letter.

SF soldiers aren't experts on the constitution, law enforcement, or public policy (whether gun control or anything else). When they say that the constitution is the greatest document ever (and explain why), they are obviously forgetting the Code of Hammurabi, the Magna Carta and many other legal precursors to modern Western political philosophy. The concept of the "consent of the governed" is, in fact, thousands of years old.

Some of the points they make are right, in my view, but it seems like they are putting a lot of unnecessary effort into massaging the facts to fit their opinion. For instance, everything they say about the nature of assault rifles, "assault weapons", high capacity magazines and the kinds of the weapons and ammunition used by mass shooters appears to be completely accurate. This type of straightforward accuracy ends when the authors reach the limit of their particular expertise, however, and subtle manipulations start to sneak in. For example, when the SF letter talks about "gun crime" in the UK, it means all offences involving a firearm. Only 3% of those result in serious injury or death. But when it talks about crime rates in the U.S., it switches to gun homicides. In fact the rate of gun deaths in the U.S. is 40 times higher than the same rate in the UK, but the letter suggests that violent gun-related murders are increasing in Britain and decreasing in the U.S. The unquestionable reality, which you do not see emphasized in the letter, is that the U.S. has a vastly higher rate of gun crimes and gun murders.

They go on to say that there is no explicit language in the 2nd Amendment as to what types of guns are allowed; that's true, but the Supreme Court has for a long time endorsed the power of the government to restrict what kinds of weapons people can own. Automatic weapons, bombs and grenades, chemical and biological weapons, etc. are all banned without any question of constitutionality. It's also ironic that they quote a justice who argued against the maintenance of a standing army. Justice Story died almost two hundred years ago; that was long before any court recognized the 2nd Amendment as an individual right, as opposed to a general right of collective groups of people to organize and arm militias.

The conventional argument that they propose again in the letter is that the right to bear arms is, at its core, the right to resist a tyrannical government. But as Justice Story points out (and as the letter quotes), this right is in constant tension with the power of the government to maintain a standing army. Armed resistance is the practical implementation of the right to resist tyranny; to be effective, the right to arms requires that the citizens carry weapons of sufficient quantity and power to counter the armed power of the government. In the 18th and 19th century, this was conceivably (and demonstrably) possible. When muskets and rifles were the height of arms technology, citizens arrayed against tyranny and the hypothetical tyrannical government faced each other with equivalent weaponry. Individual small arms were the only game in town. Clearly no one thinks that is now the case.

The most persuasive point deployed in the letter is that gun control efforts of the type contemplated in the United States are virtually guaranteed to be futile. Between the 2nd Amendment and the volume and variety of weapons already in the United States, there isn't much room for the possibility of effective legislation. That makes pro gun control arguments mostly about emotions, posturing and handwaving - admittedly useless, but useless is what we've come to expect from our political leaders. But that doesn't stop the authors from engaging in their own posturing and handwaving. It should be enough for them to simply argue that effective gun control is impossible in the U.S. and, anyway, they like their guns and want to keep them. But perhaps to preempt accusations that they have no interest in reducing gun violence, the authors trot out their own ideas for completely ineffective legislation.

The authors proposal for involuntary outpatient treatment for the mentally ill rests on a false premise. While mass shooters are typically mentally ill, and several have had treatment of sorts prior to committing a crime, almost none of them had previously been diagnosed with the type of severe illness that might lead to court proceedings (where involuntary treatment can be imposed). Let's not lose sight of the fact that these mass shootings are often planned in extraordinary detail and executed according to plan. That type of behavior is beyond the capacity of the kind of people typically caught up in competency hearings. Perhaps more importantly, the idea of giving the government the power to involuntarily confine and treat mentally ill people who have not committed a crime has been discarded in the United States several times. Even post-sentence involuntary commitment is controversial: deployed almost exclusively against child sex offenders, it has been struck down in jurisdictions across the country as a violation of the fundamental civil right to due process (i.e. the 4th, 5th and 8th Amendments).

The letter goes on to make three separate proposals for bringing guns into schools. The first would allow states and local districts to either arm teachers or staff schools with armed officers (which is, incidentally, a right they already have). The second is to institute firearm training programs in schools for children, although the authors don't bother to include a rationale for this proposal. The third is repealing the Gun Free School Zones Act of 1990. This act is the law that makes it illegal for students and visitors to bring firearms to school. The authors write that the law "obviously isn't working," so local governments should be free to allow children and others to bring guns to school (thereby providing a deterrent effect to would-be mass shooters, who can no longer count on hundreds of student targets being unarmed). Everyone can evaluate those proposals for themselves. I will only make two points:  First, it has been abundantly demonstrated that the presence of a gun in a home very significantly increases the likelihood of its owner being killed in the home. Second, it has also been amply proven that cops in schools get involved in a lot more than just preventing school shootings. Having a cop in the hallways leads to students getting arrested for offenses that in other schools earn detention. Searched, cuffed, and placed in a cell - is that how you want your kids disciplined in school?

In another example of the disdain that 2nd Amendment proponents often have for other parts of the constitution, the letter writers suggest that rather than limiting the 2nd Amendment we should simply gut the 1st Amendment. Even though the link between violent video games or movies and violent behavior is generally described as ranging between tenuous and nonexistent, the authors urge the federal government to ban violence in video games, movies and presumably TV and other media. While few if any other countries in the world have taken this step, it's clear that the men of the Special Forces would be happy to see the United States on the forefront of limiting our rights to free speech.

The Green Berets leave us with one final legal initiative. The authors strongly urge the government to do a better job at policing illegal immigrants, cross-border illegal arms shipments and the smuggling of illegal drugs.   There is no explanation for the logical inconsistency of their support for bans on drugs; presumably, they would be advocates of improved drug treatment (as they say, we don't ban cars to stop drunk driving). And while it goes without saying, I'll point it out anyway: we make all the guns we could ever use right here in the U.S. If there is a border control issue with firearms, it is preventing them from being illegally exported, not imported. (See this article about the attempts by the federal government to block the shipment of guns into Mexico).

To wrap this up - the letter writers are certainly worthy of deep respect for their service, and the extraordinary skill with which they perform it. But they are no more due deference in the area of gun control policy than any other occupation unrelated to public policy. The power of their collective opinion rises and falls, therefore, on the strength of their arguments and the facts they marshal to support them. The soldiers who wrote the letter do themselves, and their position, a disservice by selecting weak arguments and manipulating the facts. I actually agree with them that gun control legislation in the U.S. will never solve the mass shooting problem, and that it is basically worthless as a tool against violent crime in general. That should be the end of the debate; it's too bad they didn't stop there.


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