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Will Gun Owners Get Caught Sleeping?

 
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by Dave Kopel

Polling data show that years of hard work (and millions of member dollars) have translated into more favorable public opinion of firearm freedoms. Can we finally take a breather in the culture war against our rights? Gun banners are certainly hoping we do.

Are civil rights advocates winning the battle for the hearts and minds of the American people? Yes. Does that mean that the Second Amendment is now so secure that we can abandon the field of battle? Absolutely not.

Careful examination of polling data shows that we have come a long way in the past few decades—but there is still a long way to go.

This data reveal two particular long-term threats to the Second Amendment. First, there is a substantial minority in the United States—as much as a third of the population—that remains resolutely hostile to the Second Amendment and to gun rights, even after the Supreme Court’s decision in District of Columbia v. Heller.

Second, that anti-rights minority continues to have many opportunities to turn its views into the law of the land, thanks to widespread ignorance about how strict gun control laws are already. While the large middle of American public opinion is not “anti-gun,” much of the middle has very little idea about the depth, breadth and severity of current gun controls. As a result, that middle can be easily manipulated by the hard-core anti-gun rights faction.

Over the long term, public opinion can be changed by the Supreme Court. During the latter half of the 20th century, the Supreme Court mostly ignored the Second Amendment and allowed lower federal courts to get away with declaring the Second Amendment does not protect an individual right. The Court’s malign neglect played an important role in convincing gun prohibitionists that the Constitution was on their side, and in convincing many other people that the Constitution was no obstacle to gun prohibition.

The Supreme Court’s decisions in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) have, conversely, initiated a virtuous cycle in which Supreme Court affirmation of constitutional rights solidifies public belief in the right, and thus has produced a climate of opinion that is favorable for further judicial and legislative protection of the right. On the other hand, if a re-elected President Barack Obama can appoint just one more justice, then the 5-4 decisions in Heller and McDonald could be reversed or hollowed out; a vicious cycle of disrespect for the Second Amendment would commence, and whether widespread gun ownership could survive in the long term would be quite questionable.

Perhaps the best evidence of long-term cultural progress can be found in the Gallup Poll. Gallup has been polling on gun control since 1959 with the question “Do you think there should or should not be a law that would ban the possession of handguns, except by the police and other authorized persons?”

The question is somewhat flawed, with its language about a handgun ban “except by the police and other authorized persons?” A person who does not want to prohibit handguns but does want to require that every handgun owner must have a license (as is currently the law in New York and several other states) might answer “yes,” because licensed handgun owners would be “authorized persons.”

Indeed, the National Instant Criminal Background Check System, in place since 1998, requires a background check and government authorization (from the FBI, or a state counterpart) for all retail purchases of handguns or long guns. So a person who knows about NICS, and likes it, might answer “yes” to the Gallup question, since the only persons who can buy handguns under NICS are “authorized persons.”

Despite this flaw in the wording, the Gallup question is useful because the same question has been asked for more than 50 years. Presumably, whatever inaccuracies are caused by the wording would be about the same over the years.

The data, available on Gallup.com, show that support for handgun prohibition was at 60 percent in 1959. Over the last half-century, support for prohibition has fallen by half, so by 2010 only 29 or 30 percent of the public supported prohibition. That’s great news.

Yet the Gallup data also counsel against lazy triumphalism by gun owners. Note that the modern split on handgun prohibition (by 2009, 70 percent were against a ban, 30 percent were for a ban) is nearly the same as the split that existed in 1980. But within a few years, the 1980 gap of nearly 40 percent had closed to under 10 percent.

So the handgun prohibition advocates, while never re-capturing their lost majority, kept the public opinion contest fairly close during the 1980s and early 1990s. Being not too far behind in national opinion, they attempted to impose handgun prohibition in places where they thought they could garner local majorities.

Importantly, the National Rifle Association was able to stop the gun prohibition lobbies from exploiting local advantages. The NRA convinced legislatures around the nation to adopt preemption laws that prohibited local governments from banning handguns. As a result, when the Supreme Court heard the Heller case in 2008, handgun prohibition in America was very rare—confined only to D.C., Chicago and some Chicago suburbs.

As a practical matter, the Supreme Court is much more willing to act against national outliers than against national norms. So regardless of how strong the arguments were about the original meaning of the Second Amendment, if by 2008 there had been handgun bans in 45 cities and 4 states, then Heller might well have come out the other way.

The road to victory in Heller was paved by NRA activists who stopped state and local handgun prohibition in the previous century.

Since 1990, Gallup has also been asking: “In general, do you feel that the laws covering the sale of firearms should be made more strict, less strict or kept as they are now?” Back in 1990, 78 percent favored stricter laws. By 2010, “more strict” had declined to 42 percent. For the first time ever, “kept as they are now” received the most support with 44 percent. “Less strict” improved from 2 percent in 1990 to 12 percent today.

The Harris Poll has asked the broader question of whether gun control laws should be “stricter.” That figure stood at 69 percent in 1998, declining to 45 percent by 2010. Meanwhile, in 2010 a total of 26 percent said that gun laws should be less strict, while the remainder of Americans wanted no change.

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