David Rivkin on Gun Control and the Second Amendment

The following is a transcript of David Rivkin’s appearance on the BBC Newshour radio broadcast on December 17, 2012.  The show was a direct response to the shootings at Sandy Hook Elementary School in Newtown, CT.

Host: David Rivkin joined us from the Washington studio and on the line from San Francisco I also spoke to Clara Jeffrey who is coeditor of Mother Jones a left leaning investigations magazine, does she think that this is a turning point?

Clara Jeffery: I think it could be, I think this has outraged the country. It’s one of many mass shootings this year.  The numbers keep getting worse and worse. We’ve had twice as many casualties as in any year past and I think it will behoove ordinary people to organize and responsible gun owners to step forward and say that they too support reasonable restrictions.  We need to put the wind behind politicians to make the change.

Host: And why this incident? Is it because it involved very young elementary school age children?

Clara Jeffery: Of course because it makes it even more horrific and something that every parent certainly can relate to. You know we’ve had so many this year, each one seemingly worse than the other.  They are all horrible.  And I think the country is really just waking up to that this is a pattern. That there are more and more guns. There are people who are not getting the mental health care that they need.  And we just can’t continue to live in a society that where we put our children and our citizens at such great risk.

Host: David Rivkin, do you see it that way? Do you see that this could be a turning point in the debate and real changes to the laws governing gun ownership could be in the pipeline?

David Rivkin: I do not.  It is a tragic event, it tugs very powerfully at the emotional heartstrings of our soul.  But we need to understand several points what happens here, is that proponents in this debate on both sides, run to their favorite talking points.  I would say a few reasons why it would not lead to fundamental change.  First of all, there are constitutional realties, based on the second amendment as reflected in a couple of recent Supreme Court decisions.  One is called Heller, another one is MacDonald, that put very strong limits on what can be done as far as curtailing firearm ownership.  In addition to that there are serious restrictions based upon our structural separation of powers as to what the federal government, as distinct from what states can do, because criminal law matters are very much reserved for the states.  So, the federal government can certainly ban certain types of guns from interstate and intrastate commercial traffic.

But frankly it would make absolutely no difference, because the reason we have these types of tragedies is not a reflection of some magic firearm in somebody’s hand.   Look, you can pull out how many guns are semi automatic guns, a person armed with a couple of regular hunting rifles and a couple of hand guns would be able to inflict the same type of damage.  Remember what happened in Norway, that virtually has an absolute ban on gun ownership and I think he killed over 60 people.  So all these notions that if you just have some regulatory regime that you would put in place as a silver bullet– it’s just absurd.  It’s not going to make any difference.

Host: I just wonder at this point whether it’s worth reminding people what the second amendment says.  I’ll just read it out. “A regulated militia is necessary to the security of the free state. The right of the people to keep and bear arms shall not be infringed.”  Why is that such an absolute. I just wonder whether you can explain that to our listeners?  Why Perhaps could it not be changed or reinterpreted.

David Rivkin: The reason it could not be reinterpreted is the Supreme court in the last several terms has said very clearly that that language establishes a constitutionally protected right to own guns at the individual level,quite aside from militia, and if I had 40 minutes, I could describe those details.

Host: Sure, I know it’s very complicated.

David Rivkin: Let me say this: you can’t really get there without a constitutional amendment and a constitutional amendment is unthinkable, given how difficult it is to pass. And despite what my colleague says, a large majority of Americans even after terrible tragedies like this understand it is not about gun ownership– it is about mental illness.  The real way of solving those problems is to go back with some of the excess of the sixties and seventies where a lot people were deinstitutionalized and so that it’s virtually impossible to commit somebody.

One unifying feature of all these tragedies was they were committed by mentally unbalanced people who need to be confined both for their own protection and the protection of those around us.  This person could have had a homemade bomb and could have blown up the whole school.  You can’t possibly come up with some sort of mechanical ways of keeping this from happening.

Host: Alright Clara Jeffery, would you agree with that? That it’s not just about gun ownership.

Clara Jeffery: It’s not just about gun ownership.  Certainly we need more mental health care and which has been slashed recently in the United States in the last few decades.  But the fact remains that if you walk into a classroom with a semiautomatic assault rifle, you can inflict a lot more damage a lot more quickly.  That was the gun he used to butcher these children.  Those weapons repeatedly, again and again, we see when we analyze 63 mass shootings in America over the last couple of decades, assault weapons are the weapons of choice.  Because people who want to do this kind of thing want an arsenal that only a member of the military should have.

David Rivkin: Let me pose a questions to my colleague, do you really think if assault weapons were banned, you walk into a school where not a single teacher has any firearms and no police officers.  If you had two regular hunting rifles which even the biggest proponent of gun control is not thinking about banning, that he could not have killed as many children as he did? A regular hunting rifle and a couple of pistols, that would not suffice?

Clara Jeffery: The ability to fire off a barrage of bullets, to not have to reload, yes it’s simple math, you can kill more people quicker.  But the assault weapons aside, what we also need to change in this country is the culture of gun ownership.  I am not saying that is ever going to happen maybe ever and certainly not overnight that we would have some kind of outright ban on guns. There is a second amendment provision and I mean the interpretation of the second amendment can change overtime in the courts.  We’ve interpreted other parts of the constitution differently in different eras.  But what could change is the way that the NRA and other gun ownership affiliates basically bullying people into thinking that any discussion of how people should use, store guns is not up for discussion.

Host: That was Clara Jeffery of the website Mother Jones. I was also talking to the Constitutional Lawyer David Rivkin in Washington.  Well, you can find more about the debate on gun laws in America and some statistics on the number of fire arms murders in the U.S. if you go to our website, a special website that’s been set up about this story it’s bbc.com/newtown and we’ll be coming back to this story after the news at half past.  Were going be hearing from the head teacher in Texas who says that giving teachers guns is the best way to keep children safe.  You’re listening to Newshour of the BBC World Service.