When the Second Amendment threatens the First, mass shootings are more likely

Immediately after the Marjory Stoneman Douglas High School shooting in Parkland, Florida Wednesday, our elected officials tweeted and posted the usual “thoughts and prayers” rhetoric to shut down conversations about why such terrifying events occur with such frequency.

Less than a day later, President Trump spoke about violence, hatred, and evil and vowed to prioritize school safety — but avoided any mention of firearms. Sen. Marco Rubio (R-Fla.) opined mere hours afterwards that other discussions are premature since “people don’t know how this happened” — echoing Senate Majority Leader Mitch McConnell’s (R-Ky.) remarks immediately following the Route 91 Harvest Festival massacre in Las Vegas: “I think it’s particularly inappropriate to politicize an event like this. It just happened in the last day and a half.” But Trump, Rubio and McConnell are dead wrong: Not forcing these conversations is, quite literally, a fatal mistake. 

{mosads}Discussing gun violence has become so poisonous and polarizing that it exerts a strong impact on our everyday lives and personal relationships. Some Americans who have firearms safely stored in their home, won’t bring this topic up lest others think they are Second Amendment zealots with a basement bunker stocked for a coming ammo-pocalypse. Others don’t mention the “G-word” lest they be accused of being a “libtard.” This isn’t healthy — not confronting the reality that kids get shot when they play with unsecured firearms makes such accidents sure to happen.

In more public contexts, our historical reluctance to force these conversations has made it more difficult to start them in the first place. It’s hard to have educated and informed exchanges thanks to the Dickey Amendment, a provision inserted into a 1996 federal spending bill mandating that no funds allocated to the Centers for Disease Control and Prevention (CDC) can be used to “advocate or promote gun control” — enacting a de facto ban on gun violence research — resources the lack of which we literally “die for.”

Our unwillingness to talk about guns and gun violence has even made it easy for states to make such discourse downright unlawful. Indiana state law, for example, bars public and private employers from asking employees about whether they own, use, or transport a gun, with no public safety exception. If they do, they can be slapped with a civil suit for economic damages, court costs, and even punitive damages. 

While this law might make gun owners more comfortable, it puts others at risk by preventing employers from adequately protecting other employees from at-risk colleagues. If Bob in marketing is suicidal, or threatens Mary down in sales, then Bob’s boss is in a really tough position, and might hesitate to ask Bob whether he has a firearm readily at hand in his car trunk in the parking lot. And that hesitation might be fatal.

Such restrictions are particularly mystifying when the law affirmatively protects the right to discuss gun ownership, access, and safety — even though such conversations can be discomfiting. In Wollschlauger v. Governor of Florida, the United States Court of Appeals for the Eleventh Circuit declared unconstitutional a Florida law that ostensibly protected “patient privacy” by prohibiting physicians from asking patients about their ownership and use of firearms.

That law, the court held, violated physicians’ First Amendment rights, interfering with professional standards that require them to ask and educate about firearm ownership. Patients who were uncomfortable with such questions could refuse to answer — and such topics were certainly not the only difficult discussions to emerge in doctor-patient conversations.

Our growing reluctance to talk about firearms and firearm violence doesn’t respect the Second Amendment; it turns it into a club used to bully others into silence and submission. This is the opposite of what the Second Amendment is intended to be — the constitutional provision that, as Supreme Court Justice Antonin Scalia put it in District of Columbia v. Heller, has “protected the rights of law-abiding, responsible citizens to use arms in defense of hearth and home.” 

Using the Second Amendment as a silencer bastardizes it, undermining the civil discourse essential to democracy, creating and reinforcing a flawed narrative that fundamentally changes what people think gun ownership is about and warps popular understandings of the Second Amendment. 

That’s how we come to believe that “shall not infringe” means literally that no firearms regulations are permissible, equate gun safety education to gun-grabbing schemes, and misconstrue even pro-Second Amendment Supreme Court cases as unconstitutional judicial activism — all dangerous misconceptions that perpetuate and strengthen the politicization of Second Amendment issues and mass shootings. 

The first step in preventing gun violence — from domestic assaults with firearms to school shootings like Newtown and Parkland with high body counts — is to talk about them in meaningful ways that go beyond thoughts and prayers and Facebook posts to engagement and research. Without these resources, Second Amendment advocates and opponents won’t find common ground, and the majority of us who are caught in the middle can’t learn from these exchanges.

These conversations might get messy, uncomfortable, emotional and downright infuriating, but have them we must. As the Eleventh Circuit emphasized in Wollschlaeger, “[m]any are those who must endure speech they do not like, but that is a necessary cost of freedom.”

Jody L. Madeira is a professor of law at Indiana University’s Maurer School of Law. Madeira is an expert at the intersection of law and emotion. Her research focuses on the process of closure for victims and their families and the author of  “Killing McVeigh: The Death Penalty and the Myth of Closure.”