Vargas: Gun policy should be set by local communities, not unelected judges
San Jose Mayor Sam Liccardo introduced numerous local gun control measures on June 8, 2021 including requiring gun owners to have liability insurance. File photo.

    On May 26, nine people were murdered at a VTA rail yard in San Jose, leaving the community stunned and horrified for the second time in two years. In 2019, a mass shooting at the Gilroy Garlic Festival left three people dead and 17 wounded.

    The latest shooting had a particularly somber impact for LGBTQ+ people coming on the eve of Pride month, a time of celebration and solidarity with LGBTQ+ people, and conjuring memories of the 2016 Pulse Nightclub shooting that left 49 LGBTQ+ people and their family members dead.

    Last week, a San Diego judge, Roger Benitez, poured salt in California’s still fresh and open wound by ruling that the state’s assault weapons ban was unconstitutional. In his decision, the judge callously compared semi-automatic rifles to a “Swiss army knife” that was “a perfect combination of home defense weapon and homeland defense weapon.”

    Constitutional scholars, even conservative scholars, immediately panned the decision as “nutty,” and the Governor of California called it a “direct threat” to public safety.

    Judge Benitez’s decision is likely intended to serve as yet another “test case” designed to make its way to the Supreme Court. In the 2008 Heller v. DC case, the U.S. Supreme Court upended 200 years of precedent by holding that the Second Amendment protects an “individual right” to own a handgun for self-defense.

    As constitutional historian Saul Cornell has observed in his groundbreaking book, “A Well-Regulated Militia,” constitutional historians almost universally disagree. The concept of an individual right to own a weapon does not appear until the mid-20th century, invented by special interest groups and NRA-funded think tanks.

    Judge Benitez’s decision illustrates one of the central problems created by Heller. Benitez’s decision involved “multi-step” policy balancing analysis and development, something judges are not supposed to do. Policy-making is supposed to be the province of elected officials. But in 2008, the Supreme Court took gun policy out of the hands of the people and our elected leaders, and placed it in the hands of the judiciary.

    In other words, gun policy nationwide is now set by unelected judges.

    State and federal elected officials need to shoulder at least some of the blame for the Heller decision. For decades, state and federal officials have taken a heavy-handed, one-size-fits-all approach to gun policy, that left rural communities—who had far lower rates of gun violence and legitimately rely on guns for self-defense and pest control—chafing at burdensome regulations. Gun rights activism is a direct result of that overreach (though, to be fair, there’s plenty of blame to go around).

    But the Supreme Court’s constitutionalizing of gun policy creates the same problem in reverse, a one-size-fits-all solution that shifted the burden to urban communities, where gun regulations serve an important public safety role in tackling higher levels of crime.

    The problem is seen clearly in the results of Heller. Since 2008, gun violence has surged 17%, mass shootings have become more common and deadlier, and much of this increase is happening in urban communities where gun control was a necessary tool of law enforcement.

    Regardless of whether you support more or less gun regulation in your community, we should be able to agree that gun policy should be set by each of our communities, according to the needs of that community. One-size-fits-all federal solutions, whether liberal or conservative, have continually failed. Gun policy needs to be a local concern.

    Much of the political toxicity on this issue is the result of too much centralization. Conservative resistance to perfectly rational gun control policies like background checks, limits on military-style weapons and safe storage laws comes from the fact that we wrap up all gun policy into a single national debate, and they fear that giving ground on any issue could result in other limitations.

    This is not to say that federal or state governments have no part to play. State and national solutions are needed in order to address the smuggling of illegal weapons, registration, background checks and a host of other ancillary issues. But New York City shouldn’t be making policy for Lodi, California, and vice versa. And unelected judges in palatial courthouses shouldn’t be making gun policy at all.

    This is also not to say that local control will end gun violence. Gun violence is driven by many factors beyond access, though access is a key ingredient.

    The point I’m making is that federalizing gun policy made it into a toxic political football, and constitutionalizing gun policy has, not surprisingly, made it even worse. Nine unelected judges shouldn’t be making gun policy for 350 million Americans. On that small piece of this debate, we should all be able to agree.

    San José Spotlight columnist Michael Vargas is a business and securities lawyer and a part-time professor at Santa Clara University Law School. Vargas also chairs the American Bar Association’s committee on Business Law Education and serves on the executive board of the Santa Clara County Democratic Party, and on the boards of BAYMEC and the Rainbow Chamber of Commerce. His columns appear every second Thursday of the month.

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