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The right time to talk about gun control

Newtown, Conn., has just experienced the single most horrid gun tragedy in our nation's history. Yet we are admonished once more that to raise the issue of gun control in the aftermath of such tragedy is untimely or even opportunistic. It is, of course, neither. Claiming that it is somehow inappropriate politicizing to point out how our current legal climate facilitates, or at least contributes to, these horrors is offensive. More to the point, the argument against relying on such events to discuss how our understanding of the right to bear arms has run amok rests on false premises.

In the aftermath of each of the most significant gun massacres - San Diego, Calif. 1984 (21 killed, 19 injured); Killeen, Texas 1991 (23 Killed, 20 wounded); Columbine, Colo. 1999 (13 killed, 21 injured); Blacksburg, Va. 2007 (32 killed, 25 injured); Fort Hood, Texas 2009 (13 killed, 29 wounded); Aurora, Colo. 2012 (12 killed, 58 injured); Newtown, Conn. 2012 (26 killed, 20 age seven or under) - gun rights advocates have repeated that the "answer" is more guns, not more gun control.

The logic is simple. Guns are accessible, and we must accept that as fact. Because guns are out there, the only way to stop such crime is to ensure the availability of guns for those who are responsible and who will therefore use them for good. If more guns were in the hands of those who would deter such attacks, then there would be a reduced incidence of gun crime or, at a minimum, a possibility of stopping such massacres in action. So the answer to gun violence is more guns, not less, just as in the context of the First Amendment, the answer to offensive speech is more speech, not less.

No doubt this argument has a certain internal logic, but it is hardly uncommon for seemingly logical arguments to rest on a false premise. The false premise here is easily identified: the Second Amendment "right" to guns will, of its own force, get guns into the hands of people who would use guns to defend against such horrible crimes. And yet, if those who favor gun control must take as given the accessibility of guns, surely Second Amendment enthusiasts must also take as given that for good reason, or just as a matter of personal sensibility, many, or even most, law abiding citizens will continue to opt against exercising this right.

As a result, it cannot be assumed that expanding gun access is somehow the panacea, or even a counterweight, to the onslaught of gun crime. At a minimum, this reality check serves as a cogent response to arguments against regulating access to the sorts of firearms that have no legitimate connection to self-defense or hunting, but that were used in Newtown and other violent gun massacres.

The debate over gun control cannot take place in two juxtaposed theoretical worlds: one in which everyone has arms and the other in which no one does. The hard questions arise because we live in the real world. In that world, some choose to exercise their Second Amendment right responsibly, and others carelessly. (Carelessness includes failing to curb one's gun enthusiasm when faced with even a remote risk that someone exhibiting significant behavioral problems could access one's weapons.) And, of course, some people are simply evil, profoundly mentally disturbed, or both.

We can choose to make it more or less difficult for everyone to gain access to guns that have no justification except on the battlefield or in the hands of highly trained and licensed law enforcement agents. Arguing that individuals could protect themselves and others with guns is beside the point if many are not willing to do so based on a well-founded difference of opinion as to risks and benefits of owning firearms. (Even the most responsible among us can have a house broken into and lawful guns stolen when no one is home.) Certainly we should be able to agree on ending access, once and for all, to the sorts of firearms capable of generating such unimaginable violence as ending the lives of 26 innocents, including teachers and children just 6 and 7 years old.

As someone who has taught constitutional law for 20 years, I care deeply about my constitutional rights. Two quite recent Supreme Court decisions, each issued within the last five years - certainly not a deep-seated constitutional tradition -for the first time found that the Second Amendment creates an enforceable individual right to bear arms and extended the right to limit state and municipal handgun regulations. The Supreme Court's decisions in those two cases were far from obvious.

Yes, these decisions have their defenders, although I will concede that I am not among them. I certainly do not blame recent events on two Supreme Court cases. But these decisions have emboldened, and even distorted, arguments against the most plainly necessary regulation of firearms. Although we are stuck with these cases, at least for now, it is time to infuse this conversation with basic sense. That begins by rejecting the claim that raising arguments for reasonable gun control now, in the aftermath of the most horrible gun tragedy we have ever witnessed, is somehow impolite.

Maxwell Stearns is a professor of law and the Marbury Research Professor at the University of Maryland Carey School of Law. His email is mstearns@law.umaryland.edu.

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