Is it possible to crack down on gun violence without cracking down too much?
That may seem like an odd question, but it's a reasonable one. There is a good chance the Trump administration will soon tell us what gun control measures it supports — any new initiative will likely involve expanded background checks — and in what is surely a coincidence of timing, this announcement comes shortly after America observed the 18th anniversary of the 9/11 terror attacks.
The gun massacres of our era can often feel like 9/11 all over again, only on a smaller — but more frequent — scale. They represent a genuine emergency, and the government properly has a role in responding. But the same was true after the 2001 terror attacks, and the Bush administration didn't just react to that event — it overreacted. Gun control advocates should observe this history, and proceed with caution.
After the 9/11 attacks, the federal government under President George W. Bush crossed previously uncrossable civil liberties lines. Surveillance of the public was greatly expanded. Terror suspects were held indefinitely without trial. Some Americans found themselves disallowed from boarding planes, with no explanation or effective process of appeal.
That is why gun control advocates should emphasize civil liberties at every step of the journey. It is the right thing to do, but it is also just good politics — most gun owners would welcome new restrictions aimed at protecting the public. An approach that appeals to those owners could also curb the power of the National Rifle Association to play its usual obstructive role.
There are a few simple principles gun control advocates should follow.
The first is to enshrine due process rights at every opportunity. There are proposals for "red flag laws," for example, that let police get court orders to seize guns from people considered a harm to themselves or others. Such laws have proven effective in states where they have been adopted. But the government shouldn't be able to get a court order on its own say-so: Gun owners should get a chance to argue their case in court — and to appeal those decisions as well.
"This is the government depriving people of their property," said New York State Sen. Brian Kavanagh, who wrote that state's red flag law with such protections in mind. "When you do that, you have to be careful."
The second principle is to discourage unilateral action by the executive branch. Gun control advocates will probably find that principle frustrating, because Congress is so often where their efforts come to a premature end. But it is problematic when presidential candidates like Sen. Kamala Harris (D-Calif.) promise to unilaterally impose gun control regulations if Congress doesn't pass them in the first 100 days of her administration. Power grabs made with good intentions are still power grabs, and they are almost always bad ideas. At the very least, the Harris proposal would create a Constitutional crisis.
Finally, gun control advocates should beware any "solution" that scapegoats marginalized people. We know that, historically, gun control laws were used to keep African Americans from arming and protecting themselves. These days, politicians talk about keeping firearms away from people with mental illness. That's vague and overbroad — only 3 to 4 percent of all violent acts are committed by people diagnosed with a commonly cited mental illness. Nobody's freedom or safety is enhanced with badly targeted solutions.
Where gun crime is concerned, the debate is made more complex by the fact that conservatives and liberals don't value and interpret the Second Amendment right to bear arms in quite the same way. Some firearms owners will perceive any effort at gun control as an infringement on their freedoms.
Even allowing for such differences, finding the right balance is tricky. It was right for the federal government to protect Americans from terror attacks. It is also right for today's officials to act to curb gun violence. But the reaction to 9/11 demonstrates that it is very easy for the federal government to go beyond the best, most appropriate responses to an emergency and start to trample on the liberties of its citizens.
It is finally time to act to curb gun violence. But it is never a good time to overreact.
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