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Armed with Arguments

David Cole, interviewed by Matt Seaton

Two recent mass shootings and an apparent uptick in gun violence generally have led to renewed calls on legislators to enact gun control measures. For his part, President Biden at first seemed to gesture toward backing an effort to restore the Assault Weapons Ban of 1994, which was allowed to sunset a decade later; he has since made clear that this will not, in fact, be a priority for an administration working with very narrowly poised majorities in both House and Senate.

Jared Soares/ACLU

David Cole, 2020

Given the renewed currency of the issue, though, we decided to seek out a Review contributor who has written extensively about gun violence and gun control for the magazine: David Cole. The ACLU’s national legal director not only draws on deep knowledge of the topic but is also an active participant in the public policy debate—sometimes, in a counterintuitive way: he recently wrote an op-ed for the Wall Street Journal criticizing the legal action taken by New York’s attorney general, Letitia James, against the National Rifle Association. David kindly agreed to take part in a Q&A interview.


Matt Seaton: In past articles for the Review, you’ve observed that while incidents like those recent ones in Georgia and Colorado receive a lot of public attention, mass shootings represent only a very small proportion of gun violence and death in the US. But isn’t the public attention important if legislators are ever to succeed with gun safety measures?

David Cole: Public attention is absolutely critical. My point is that in terms of numbers, many more people are killed and injured in everyday gun violence, that young Black men living in urban areas disproportionately bear that burden, and that such routine violence receives far less attention than mass shootings. Black Americans are killed in gun violence at double the rate that White Americans are, and Black Americans are wounded at a rate fourteen times higher than that of Whites. That systemic injustice should drive reform efforts at least as much the horrors of mass shootings.

You’ve also observed that calls for a renewed “assault weapons ban” do not make much practical sense—given the political costs involved and because banning these specific guns would have limited effect. What gun control measures would make more sense to pursue?

There is no good reason for anyone to have an assault weapon. These firearms are disproportionately used in mass shootings. And such a ban would plainly be constitutional as a reasonable regulation of arms. But historically these bans have been more symbolic than substantive, because it has been so easy for gun manufacturers to get around the definitions of assault weapons through minor modifications to gun design. Defining “assault weapon” in a way that avoids loopholes is a real challenge. And the vast majority of gun deaths are not from such weapons, but from ordinary handguns.

So no one should imagine that an assault weapons ban will do much to solve the problem of gun violence. Universal background checks, rigorous licensing, regulation of online sales, and “red flag” laws that allow guns to be taken from people who have shown a proclivity to violence would all likely be more effective. 

As Duke law professor Joseph Blocher has argued, ensuring that cities can go their own way on guns could also be important. Many gun rights enthusiasts live in rural areas, but the costs of gun violence are disproportionately borne by urban residents. It would make sense, therefore, to allow cities to adopt stricter gun regulations than rural areas, if they so choose. And they often would so choose.

The NRA, though, has succeeded in convincing many state legislatures to adopt “preemption” laws that essentially forbid cities and towns from adopting ordinances that are any more restrictive than statewide rules. And because many state legislatures are dominated by rural representatives, this allows citizens in rural areas to dictate the rules in urban areas—while avoiding the worst costs of gun violence themselves. What is an appropriate regulation in the city may be very different from what is appropriate in the countryside. We should allow the law to recognize those differences.

Even if all gun sales were banned tomorrow, there are more than 400 million firearms in civilian hands in the United States—more than one gun for every man, woman, and child. And guns, unlike, say, iPhones, last for decades. So any real gun reform would also require a huge buy-back program, like the one Australia managed when it imposed significant gun control restrictions in the 1990s in the wake of a mass shooting there. Australia ultimately bought back 650,000 guns; as a result, homicides and suicides fell significantly.

What is your view of the Supreme Court’s Second Amendment doctrine after the Heller decision—given the court’s conservative majority, should we expect rulings even more favorable to gun rights advocates in years to come?

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The court’s decision recognizing an individual right to bear arms in 2008 [District of Columbia v. Heller] came only after the NRA had succeeded in getting an individual right to bear arms recognized in virtually all of the states, by Congress, and by the Executive Branch. And even as it recognized the right, the Supreme Court emphasized that it is subject to “reasonable regulation,” including background checks, licensing requirements, and limits on military weapons. As a result, the major impediment to gun control has not been the Supreme Court, but the political power of the NRA. That group has been able to get laws enacted, including ones enabling open carry, that are not constitutionally required. And it has consistently defeated laws, like universal background checks, that would plainly be constitutional. 

Today, however, the NRA is on the defensive, and the gun control movement has been greatly strengthened. That political fight will more likely determine the scope of gun regulation than the Supreme Court. Groups like March for Our Lives and Everytown for Gun Safety have adopted a grassroots, state-based strategy, much as the NRA did decades ago. Only time will tell how successful these gun control efforts will be, but I doubt that the Supreme Court will be a major determinant in the scope of gun laws. 

The NRA, facing legal action from New York Attorney General Letitia James that seeks to dissolve it as a nonprofit, is relocating its headquarters to Texas. You wrote the op-ed arguing that James’s action was overreach, using a prosecutorial tool that “has historically been reserved for organizations that are essentially false fronts for personal gain.” Yet a large part of her case is precisely that the NRA had been used by senior figures for self-enrichment and corrupt cronyism. Doesn’t that seem right?

I have no sympathy for the NRA leaders who reportedly lined their own pockets using charitable funds. They can and should be punished if the attorney general’s allegations are borne out. But it is one thing to punish the wrongdoers; it is another thing to shut down an entire organization and require it to disgorge its assets, and that’s the remedy she’s seeking. The millions of NRA members who pay dues each year were bilked by some of their leaders, but that’s not a justification for closing down the entire organization. 

Whether you agree or disagree with their policy preferences, NRA members have a right to associate and advocate collectively, just as members of Everytown for Gun Safety do. The sins of the leaders should not be visited on the many NRA members who did nothing illegal. 

You’ve written harshly critical things about the NRA and its influence in the past. Does it feel odd to be defending it now?

No. I, and the ACLU, believe that the First Amendment protects everyone, including those with whom we disagree. If the rights of speech and association are to be meaningful, they have to be afforded to all, not just to those whose views we like. The ACLU has long defended groups whose views it finds repugnant, because the First Amendment is the lifeblood of our democracy. If the New York Attorney General can seek to shut down the NRA because of the wrongdoing of some of its leaders, what is to stop governors in red states using the same power to close down organizations fighting for racial or economic justice if some of their leaders are corrupt?

I understand that a resolute defense of the First Amendment means embracing unpopular or controversial causes, and that NRA members’ right of association are in play here, but I also wonder if the ACLU has shifted its position on freedom of speech somewhat in recent years in cases in which free speech rights come in conflict with other rights. Is that right?

No. We remain committed, by policy and practice, to the principle that the First Amendment protects everyone. We recognize, of course, as we always have, that speech rights are not absolute. There are restrictions on incitement, harassment, threats, and the like that mean speech can be punished when it crosses the line to violence or illegal conduct. With the exception of the rights not to be compelled to incriminate oneself, or to be stripped of one’s citizenship, no rights in the Constitution are absolute. 

But what is absolute is that the First Amendment protects everyone equally; the government cannot allow some groups to organize and speak and not others, based on whether those in power, or the majority in a particular community, agree or disagree with the group’s views. Our history has demonstrated that when we afford that kind of discretion to government officials, they target the most vulnerable, the dissenters, the outliers, those who seek to change the status quo.    

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So, in recent years, we have filed briefs not just in support of the NRA’s right to association, but in support of anti-Semitic protesters’ right to picket outside a synagogue in Michigan; a conservative student magazine denied funding after lampooning “safe spaces”; the far-right commentator Milo Yiannopoulos when the D.C. Metro refused to display ads for his book; Americans for Prosperity (a Koch-funded nonprofit) in a challenge to California’s requirement that it disclose its donors; and an evangelical Christian’s suit challenging a university’s restrictions on where he could speak. We don’t share these speakers’ views, but we defend their right to express them.

You’ve written eloquently about how gun deaths disproportionately affect communities of color, and young Black men especially—and you’ve argued that this should be the starting-point for any gun safety legislation. It’s also true that a huge proportion of US gun death—consistently around 55-60 percent—is by suicide, not homicide. So, is there an opening there for reform, also, one that progressives may be missing?

It is true that every year, about half of all gun deaths are suicides. And there is reason to believe that the easy availability of guns makes suicide more likely. So, yes, this ought to be among the policy arguments for greater gun control. Will it be enough to rise above the partisan divide that has come to afflict this and so many other issues? I doubt it. 

Is gun control legislation possible without reforming the Senate’s filibuster rule, which effectively requires sixty votes for a bill to pass?

Almost certainly not. Even before this year’s horrific mass shootings, a majority of Americans supported stricter gun control measures, but legislation is invariably stymied in the Senate because the Republicans use the filibuster to block any reform proposal. This has been true not just for gun control, but also for immigration and voting rights reforms.

So perhaps it’s not surprising that President Biden has chosen not to prioritize gun control at this moment. The only way that will change is if the people demand reform to such an extent that he has no choice but to respond. Gun control advocates have to organize as gun rights advocates already have.   

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