Advocates of even the mildest gun control reform in the US were dealt a serious blow yesterday, as the Senate failed to enact an expansion of background checks for gun purchases online and at gun shows. Some have been quick to gloat over the result, while others were taken aback that the Senate could so blatantly ignore the will of the American people. A number of polls have indeed shown massive support for background checks on gun purchases (upwards of 90%) – according to one survey, the proposal is even more popular than kittens. This level of support predates the Sandy Hook massacre. Political analysts will go to great lengths to explain how such a popular measure was voted down (the strength of the National Rifle Association’s lobbying efforts play a large part, no doubt), but we can also ask whether it should have been – in particular, independent of the merits of the bill, whether politicians should not have flaunted the will of the people.
One may question whether, in fact, the will of the people was really flaunted. Notably, a majority of Senators – 54 out of 100 – voted in favour of the measure (60 were needed for it to pass). That is a far cry from the circa 90% support many polls found. Still, one could argue that the polls are quite misleading of what most Americans really want. While Americans may support background checks in the abstract, perhaps particular provisions or implications of the bill are more objectionable. For instance, background checks are not free – the cost would either have to be borne by the consumer (making guns more expensive), or the state (requiring cuts or taxes to pay for them). Relative ignorance of such issues may lead the polls to overstate support for the actual content of the Senate’s bill. This is a reasonable point – but there is just as much reason to think the polls are understating support. For example, one poll found that a plurality thought the information in the background checks would be used to confiscate legally-owned guns, something few Americans would accept. But the law would forbid any such activity – it would even be illegal to create a federal gun registry, an important (but by no means sufficient) step in any alleged confiscation scheme. This misperception may indeed lead polls to underestimate the level of public support for the actual content of the bill.
A tougher question is the extent to which polling should be relevant in politicians’ decisions. Americans have a representative democracy, after all, not a direct democracy. The representative system is specifically designed to put decision-making power in the hands of elected representatives, rather than the whims of the people. This has a number of advantages, including specialization of analysis (politicians can spend more resources analyzing and evaluating the merits of any given bill) and efficiency (politicians can devote more time to debating and voting on various measures). Legally speaking, the will of the people only comes into effect on election day. From this perspective, politicians are not making any mistake in ignoring the polls – and they are responsive to the people insofar as they perceive that voting down the bill will increase the likelihood of being re-elected. And if any mistake in that area has been made, they will be corrected on election day.
The problem with this perspective is that, while it is faithful to the letter of the law, it ignores the spirit of the system. Consider the retiring politician – there is no re-election to incentivize him or her to act on behalf of the people. Perhaps the politician has some loyalty to his or her party, or eye towards a sterling legacy, to prevent him or her from being completely irresponsible. Still, it is understood that the retiring politician has stronger reasons than those to vote one way or another. Representative democracy is still a democracy; at least part of the idea is that power shall ultimately rest with the people. When public opinion is split, the will of the people has arguably been obscured and so perhaps politicians can rightfully set aside which side is slightly ahead in the polls. But in cases such as this, where there is overwhelming support for one side, it is rather audacious to nevertheless forge ahead against popular opinion. One may try to argue that people are simply grossly mistaken about what is in their interests, and it’s best for the country if the polls are ignored. But one of the best determinants of what is in someone’s interest is their opinion – it is a pernicious sort of paternalism that presumes politicians know better than the vast majority of the electorate what is good for them.
A defender of the Senate’s actions might argue more narrowly that the present case is exceptional because it involves basic constitutional rights. While acceding to overwhelming popular opinion may generally be the correct course of action, opinion should be ignored when it seeks to trample on people’s rights. This is particularly clear in the protection of minority rights; politicians would be right to protect the constitutional rights of small minorities from disenfranchisement, discrimination and other ills even when the overwhelming majority supports such oppression. But, at least in the US Constitution, gun rights enjoy a similar privilege via the Second Amendment. So, one might argue, the constitutional rights of prospective gun owners must be protected in the face of immense popular pressure, and for that reason the bill opposed. The oath of office is, after all, first and foremost an oath to uphold the Constitution.
This is a fair response, so far as it goes. It does indeed seem like a good rule of thumb to vote against unconstitutional laws, no matter the public support. However, this argument heavily relies on the notion that expanded background checks violate the Constitution. Yet background checks have already been in place for some purchases for years, with the US Supreme Court declining to even hear cases challenging existing laws. It is hard to see how the expansion of background checks to gun shows and the internet would suddenly violate the Constitution. Perhaps opponents will argue that the Supreme Court got it wrong, and all existing background checks are unconstitutional. But this is a very strong argument, and beyond what I take it most Senators opposed to background checks have been making. Moreover, it is hard to see how a background check violates the right to keep and bear arms unless one is willing to accept that the right is limitless, extending to (say) convicted felons, known terrorists or people with mental illnesses that dispose them towards violence. In the absence of such a strong and compelling argument against the constitutionality of background checks, the fact that the Senate failed to respect the overwhelming directive of the people is disturbing indeed.
As far as I’m aware, the basic political logic behind most of these Senators’ decision not to vote for expanded gun-control is that the majority of people expressing a preference for increased gun-control (background checks or whatever else) hold that preference only very weakly and are therefore unlikely to make politically relevant decisions (i.e. voting or donating or otherwise supporting electoral campaigns) on that basis. Those who oppose such measures have a very strong preference to
I don’t think following such a logic is necessarily anti-democratic, and it is probably generally conducive to protecting minority rights. In most cases of majoritarian tyranny, it seems likely that the majority will have a diffuse and weak preference for restricting the rights of the minority, whereas the minority will have a concentrated and strong interest in protecting its own rights. And the strength with which preferences are held, not just their prevalence in the population certainly seems like it should be taken into account.
whoops, just noticed I left a sentence unfinished there. Obviously I meant to say:
“Those who oppose such measures have a very strong preference that they not be taken.”
Yes, I would agree that a vox populi-sensitive politician should weight the relevance of public opinion by how strong the views were held. However, in the present case, it would appear that there is more strong support for background checks than strong opposition; an ABC/Washington Post poll indeed found strong support for background checks exceeded strong opposition by a whopping 67 points: http://abcnews.go.com/blogs/politics/2013/04/support-for-gun-checks-stays-high-two-thirds-back-a-path-for-immigrants/ .
One might counter that the electoral calculus speaks otherwise – a large number of Senators are estimating that opposition to the checks will help them more in the ballot box than support, which might imply that they think polling is wrong and something like the strong-opposition hypothesis you offer is correct. But I think there is another, stronger explanation: the NRA’s grade of politicans has a powerful effect at the ballot box, and voting in favor of the background checks would lower that grade. In addition, the NRA is well-funded and will pay for donations/ads (more than countervailing groups) partly on the basis of support or opposition to the checks. Both are legal forms of influence, but at least in this case they appear to work against politicians acting out the will of the people. To a certain extent (people listen to the NRA, and accept the influence of lobbyists’ money and ads), the American people are responsible for the conditions that allow politicians to actively work against the will of the vast majority. But politicians are responsible as well, and we should recognize that their ignorance of the people’s will is deeply objectionable.
Not to drudge up an old debate, but I noticed that Pew just released a survey on the American public’s reactions to the gun control vote. The number of people upset about the failure of the bill is not nearly as high as the number of people who claimed to have been in favor of background checks in earlier polls.
http://www.people-press.org/2013/04/24/mixed-reactions-to-senate-gun-vote/
It is somewhat surprising, but it suggests that the senators who voted against the bill had fairly sound political instincts: in states where both senators voted against the bill, public opinion favored rejection 46-37.
That this mixed reaction would follow so quickly on the heels of the vote makes it seem unlikely that the NRA was responsible for manipulating public opinion through ads or other forms of influence.
With respect to this argument you made earlier, though:
“But I think there is another, stronger explanation: the NRA’s grade of politicans has a powerful effect at the ballot box, and voting in favor of the background checks would lower that grade. In addition, the NRA is well-funded and will pay for donations/ads (more than countervailing groups) partly on the basis of support or opposition to the checks. ”
I don’t think this argument is inconsistent with the idea that politicians are weighing the strength of public opinion on gun control. Why would a politician’s grade from the NRA translate into a powerful effect at the ballot box if not because those opposed to gun control take their opposition to gun control very seriously? And the money the NRA presumably also comes from donors and members who feel strongly enough about the issue to commit financial resources. While money in politics can be controversial in its own right, it seems safe to assume that those committing money to opposing gun control do not have as significant a financial stake in these policies as say, industry or labor groups lobbying the government for decreased regulation or increased spending in their fields.
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