A Debate Over ‘Common Sense’ Gun Legislation

It’s “The Argument.” I’m Jane Coaston.

It’s been a week since the shooting in Uvalde, Texas, that killed 19 children and two adults, and less than a month since the massacre at a grocery store in Buffalo that killed 10. And as you’ve probably guessed, nothing legislatively has happened. Every time after a mass shooting — and boy, do I hate saying every time after a mass shooting — the national debate over gun control or gun safety or common sense gun legislation, whatever you want to call it, comes to the fore. And don’t get me wrong, we need to have a conversation about guns and gun control. But I think we’re having it wrong. Actually, we need to have a bunch of different conversations. Because the majority of gun violence in the United States isn’t mass shootings. It’s gun-related murders and suicides.

These are all violent acts that involve guns. But stopping each of them requires different solutions. So I’ve invited two people with opposing views on gun control to talk about solutions. Alex Kingsbury —

alex kingsbury

I’m an editor at large with Times Opinion. And I sit on the editorial board.

jane coaston

— and Charles C.W. Cooke.

charles c.w. cooke

I’m a senior writer at National Review.

jane coaston

Alex has written about the need for more gun control laws. And Charles has written about the value of the Second Amendment and why we need guns.

When people talk about quote, unquote, “common sense gun control measures,” there are three major proposals that always come up, particularly after a mass shooting incident. Those three are red flag laws, background checks, and age limits. I want to start out by talking about background checks. Federal law requires background checks for all gun sales by licensed gun dealers. And in theory, it makes sense to give someone a background check to see if they have a criminal record. But understandably, that doesn’t work if you don’t have a criminal record. So I’m curious as to, Alex, your thoughts — we’ll start with you — on what should universal background checks look like.

alex kingsbury

[INHALES, EXHALES]

jane coaston

I love that sigh. I feel like we’re already in a good spot.

alex kingsbury

No, it’s like — I agree with the idea of universal background checks if we can figure out a way to implement it that actually works. One of the major problems with U.S. law enforcement in general, or one of its features, depending on where you sit, is that there’s so many different jurisdictions and different law enforcement agencies and different databases, and all this sort of thing. And so if there could be some sort of centralized way to evaluate the purchasers or potential purchasers of firearms, I think that would be to the good. I mean, every time you go to the White House as a visitor, you get run through a background check. You get on an airplane, and there are certain types of things that are checked. Every time, you get run through one of these systems.

But the idea of introducing more friction into the system, I think, is really the central issue here. And with all of these things that we’re talking about, it puts friction in a system that stands between the purchaser of the gun and the gun. And I think basically anything you can do to that end is to the good, and it’s going to save lives.

jane coaston

Unlicensed private sellers aren’t required to perform background checks. But a bunch of states have passed legislation to extend the federal background check requirement to cover at least some forms of private sale. But Charles, I’m curious as to your thoughts.

charles c.w. cooke

Well, I think the first thing to say is that background checks wouldn’t do much about mass shootings. So the case for background check expansion does seem to be to prevent crime. I’m against the federal government doing this.

The federal government regulating private, often non-commercial, intrastate transfers of firearms strikes me as a complete violation of enumerated powers. And I don’t see how the federal government has that. Of course, that doesn’t mean that states shouldn’t do it, and a lot of states do. The one I live in, Florida, does not. And that means that I can sell a gun in a listing in a newspaper, for example, to another Floridian without either of us undergoing a background check.

There are some rules that apply. I can’t, if I think he’s a criminal, sell him a gun. I can be convicted for that. But if I have no idea, I can do that.

I can see the case for tightening that up. I think where this gets stuck in the mud, though — when people are asked in the abstract, do you think we should do this, 90 percent say yes. And then when we start writing it down, it goes down and down and down. And it gets, often, to 50 percent, as it did in Nevada and Maine.

And the reason for that is what counts as a transfer. If I lend you a gun, is that a transfer? If I give a gun to my brother-in-law, does that count? Is it only commercial transactions?

I have some time for the idea that the state of Florida, for example, should regulate all commercial transactions of firearms and require a background check for those. I certainly wouldn’t want to see a system where if I loan my brother-in-law a rifle for a month, that necessitates some sort of federal background check or even state background check. I think that’s crazy.

alex kingsbury

I just have two quick points. Charles makes some good ones here. Look, if you lend your brother a car for a month, it doesn’t count as selling him a car. So I think the way we track vehicles is not perfect, but it certainly provides a model by which the government can do this. I would say another thing is the government is good at regulations except when you don’t give it the tools to regulate. And the A.T.F., which is one main organization of the government that’s supposed to be doing this, has been religiously starved for funds by decades in a political project that wants to make the government look bad, and also doesn’t want to regulate guns. So the fact that the government isn’t good at regulating guns because it’s been made very difficult to regulate guns strikes me as kind of circular logic in a lot of ways.

jane coaston

When we’re thinking about background checks, can these be at all successful if we can’t measure — like, this isn’t pre-crime. We can’t measure someone else’s intent to kill, especially if they have no history of it. There’s been a lot of research that talks about how many people who have committed mass shootings have a history of domestic violence or a history of expressing misogyny in some means.

But if you are sketchy, that’s not illegal.

charles c.w. cooke

No.

jane coaston

Like, we are asking background checks to do something that I don’t know if they can do.

charles c.w. cooke

Well, what they can do is weed out people who have criminal records or who are in a mental health database. And I think that is valuable. In a country with 400 million guns, I’m generally skeptical about the value of any government intervention. I think that ship, or many of those ships, have sailed. But I think that’s valuable.

Of course, what we’re doing now is we’re moving a little bit towards the debate over red flag laws when you mention pre-crime. One of the differences between the United States and other countries is that we don’t prevent people from exercising certain rights on the basis of their viewpoint. If you are British and you want to buy a shotgun, and you have a long history, for example, of being a neo-Nazi, you can’t do it. They’ll just deny your application. That’s not true in the United States.

Now, I share the opprobrium that is thrown at neo-Nazis in the same way as everyone else does. But I would not want to see the federal government determining on the basis of speech, unless that speech were, I’m going to go buy a gun so I can kill someone, which I think would put you in a different category. But I wouldn’t want to see people excluded because, for example, they were a white supremacist, or they thought that the 2020 election was stolen, or they were a brand of radical Muslim that I found uncomfortable. I think that would be a very dangerous road.

And America is not just an outlier when it comes to gun rights. It’s also an outlier when it comes to speech rights, and when it comes to privacy rights, and when it comes to due process. And together with the 400 million guns and the Second Amendment, that often puts law enforcement in a pretty difficult position until someone actually commits a crime.

jane coaston

Alex, what do you think? You had a face that I am curious to hear the thoughts behind the face.

alex kingsbury

I mean, I think comparisons to free speech rights and gun rights are just different, right? The Constitution says that Congress shall pass no law abridging the freedom of speech, and yet Congress does pass laws abridging the freedom of speech. And so I think Congress was perfectly appropriate to pass laws restricting gun rights.

I think if you had laws that say, based on your profile, we’re going to have a three, five, six, 10-day waiting period, whatever it is to give a bit of delay, to allow a little bit more investigation — some of these backgrounds are sort of instant background checks. And if they don’t come back in three business days, then the sale goes through. I think some of this is designed to fail, in a lot of ways.

jane coaston

Is that referring to the Charleston loophole? I believe that permits gun purchases to continue after three business days even if a background check is not completed. Correct me if I’m wrong.

charles c.w. cooke

Yes, unless they subsequently find out that you have a record or some disqualifying variable. I mean, on the Charleston loophole, that’s actually a good example of what I’m talking about. Because in the United States, we’ve instituted due process protections for gun buyers, essentially. I mean, so, the Democrats in Congress want to change the provision at hand from three days to 10 so that if your background check comes back without resolution, then you wait 10 days. And if the federal government can’t find anything on you, then you’re allowed to buy a gun.

We can debate that three days, five days. But presumably, we are all going to agree — and if we don’t, the courts will do it for us — that there have to be some due process protections in there, that the government can’t indefinitely prevent you from exercising a constitutional right. Again, that’s just not how it works in most countries, and we’re different.

jane coaston

Alex, what do you think about the three-day waiting period? Is it too long? Too short? What are your thoughts?

alex kingsbury

Oh, it’s way too short. I would support extending it vastly, and way beyond 10 days, too. And I would support that if the government doesn’t come back with a response in time, that you have to wait until the government comes back, comes back in time. You have to wait for the government to do a lot of things that we wish it did quicker.

Just because people really want to buy a gun — to me, firearms are so different, so different from so many other purchases that it requires a lot more deference to regulation in the name of public safety. I don’t find this sort of controversial at all. I know a lot of people do. And it’s just sort of a philosophical disagreement.

I mean look, the government abridges our freedoms in a whole bunch of different ways for a variety of regulatory reasons, many of which are unfair, and annoying, and obnoxious, and create friction, and so forth and so on. Most of them, we just find irritating and annoying. And all of those are impingements on liberty in one way or another. But I just don’t have a problem with doing it for guns because of the nature of the gun problem in this country.

charles c.w. cooke

So my problem with that is that the law and order right, to which I don’t belong, would say that the same principle should apply to, say, the detention of people who are suspected of a crime, or to terrorists who are suspected of a crime — that instead of having to release them after a time if you can’t find evidence, that it’s just too important. We’ve just got to keep them in. Because if we don’t, they go back on the street. They kill someone or they blow someone up.

And I don’t understand how we could have, you know, a strong culture of due process that tells authorities, you can’t detain someone without evidence beyond a certain point, but you can restrict a constitutional right without limit because it’s just too dangerous.

alex kingsbury

There is an island not far from here called Rikers that is full of people who have been there without trial, detained for more than a year. A lot of them die there without ever facing trial. This is something we deny —

charles c.w. cooke

But that’s bad, isn’t it?

alex kingsbury

Yes, it is. But denying liberty to a gun is not the same as denying liberty to a person.

charles c.w. cooke

No, but I think that they’re both violations of constitutional rights, and we should oppose both.

alex kingsbury

Well, no. I think we can acknowledge that one is worse than the other.

jane coaston

Well, OK. But I think that, Charles, you actually mentioned red flag laws earlier. Basically, if a person exhibits behavior indicating they could be a threat to themselves or others, a person in their family, a school official, or a police officer can go to court to secure an order that permits police to seize their weapons and prohibits them from purchasing any additional weapons so long as the order lasts. So red flag laws, Alex, useful or not useful to you?

alex kingsbury

Oh, absolutely useful. Look, one of the main intersections between violence and death and social pathologies is domestic violence. And red flags are zeroed right in on this particular issue.

Women are five times more likely to be murdered if her abuser has a gun. Of all the situations, domestic violence and weapons should be as clear-cut that the left and the right agree on. I’d love to see it at the federal level. But anything we can do at the state level for this kind of legislation, I think is to the good.

jane coaston

Again, you talked about putting friction in the system. And I think that this is another means by which of doing so. And I’m curious, Charles, because I think that we see all of the time that after a mass shooting, there are incidents that sound like red flags afterwards. But what looks like a red flag to some people doesn’t look like a red flag to others.

charles c.w. cooke

Well, I broadly see red flags in much the same way as I would see law in general, which is that I am open to them, providing that they have narrow terms and extremely robust due process protections. I would need to see the details. But I am open to red flag laws because I think, you know, that we do generally recognize people who are a threat, providing that there is really robust judicial oversight, that the terms are nailed down so that we don’t see political abuse, which we would, and so that we avoid, as far as is possible, trying to regulate pre-crime or speech.

But I do think that if you have a system that is written by people who are not trying just to restrict access to guns, and who have good motives, then this can work. And I think it’s worth trying, perhaps with a sunset clause for renewal so that if it doesn’t work, it expires.

jane coaston

Yeah, in the Buffalo shooting case, he wrote that he wanted to commit a murder-suicide. And then when he was asked about it by law enforcement, because someone raised that as being a concern, he said it was a joke. And then he told people online later that it was not a joke. I wrote that down because that’s what I want to do. This is the reason I believe I am still able to purchase guns.

Nearly half of individuals who engage in a mass shooting leak their plans in advance to someone. So Alex, given that, I want to know what you think about red flag laws, especially because — are there types of violence they would be more effective at preventing? Would they be more useful in domestic violence cases than they would be in attempting to prevent mass violence?

alex kingsbury

Yeah, and I actually don’t think red flag laws are going to do all that much for mass shootings. I frankly don’t think there’s a whole lot we can do about mass shootings at this point. I do think there is a lot we can do about domestic violence, which is vastly more incidents of killing and wounding with firearms. Red flag laws are good for that.

Red flag laws are not a panacea for mass shootings. None of the solutions that we’re talking to are. But overlapping enough of these things together, and you’re going to catch some mass shooters. How many mass shooters do you have to catch to make a federal red flag law an unfair impingement on liberty? What does that number have to be, you know? One classroom? Two classroom full of kids? That’s kind of what we’re talking about, right?

charles c.w. cooke

Well, I don’t know we are. I don’t think that we measure the desirability or constitutionality of legal provisions by the number of lives they save. I mean to me, that’s an Archie Bunker approach to the law, where you get conservatives historically who have said, well, yeah, I don’t really care about the due process rights of people who are arrested. I don’t really care about Sixth Amendment rights. I just want to stop crime.

And to me, this reminds me of the debate over stop and frisk. And I remember writing, seven or eight years ago, that I think stop and frisk is unconstitutional and should be stopped, and it will probably lead to an increase in crime. I think this is where this gets very difficult.

jane coaston

Right.

charles c.w. cooke

And of course, this ends up sounding horrible because you end up saying, well, yeah, I’m prepared to indulge some crime — forget guns, just all crime. But I suppose I am, not to live in a police state. So I would — and I’m not suggesting you think we should live in a police state, but I’m not quite sure that’s the right way to look at it.

alex kingsbury

The difference between locking up people without due process and not letting guns into circulation because of due process rules, to me, are two very different things. And if we err on the side of taking guns out of circulation, that’s good. We err on the side of taking people out of circulation for no reason and throwing them in prison or jail, that’s bad.

We have these dangerousness hearings, for instance, when somebody who’s been accused of a crime, they consider whether or not to set them free, whether under bail or on personal recognizance or whatever. And the judge looks at them and evaluates whether or not they’re dangerous or not. It’s a problem if there’s no due process there, and the default is to throw that person in a cage.

It doesn’t strike me as very problematic if a judge looks at somebody with a gun and says, well, actually, I’m going to take away your gun because we’re not sure here. But in this situation, we’re going to err on the side of you not having a gun. You just can’t look at the death toll that weapons have inflicted on this society and say that we overregulate weapons in this society.

charles c.w. cooke

Let’s move that slightly to one side. Because as you say, we disagree on the question of where guns fit in. I think one of the things that I’m driving at is that we can’t have many of the laws that gun control activists want without also putting more people in cages.

And there is a tension at the moment, and one that I find very interesting, and one that I have some sympathy for as a civil libertarian across the board, where it’s conservatives who are saying categorically, no, I don’t want this gun control law or that gun control law, but a lot of progressives and criminal justice reform advocates who are saying, I don’t want the consequences of those laws, even if they nominally covet them.

In this case that is before the Supreme Court at the moment, the Bruen case, which is about New York’s concealed carry licensing regime, you have a lot of amicus briefs filed on behalf of the plaintiffs by progressive defense lawyers saying, OK, we don’t like guns, and we’re not big on the Second Amendment. But we’re so tired of New York’s gun laws leading to young Black men being incarcerated that we want them to go.

And I think this matters. Because as I say, put aside your and my different way of seeing how guns fit into due process and the constitutional order. If we are going to get more active about prosecuting not just gun crimes, but gun control, we are going to see more people in court and in jail. We are going to see more of the school to prison pipeline, as it’s called.

I think this tension is really important. Because it’s not just conservatives who are opposed to that, it’s progressives, too, at least on the back end.

alex kingsbury

How does things like red flag laws, background checks and age purchasing, how does that lead to more arrests, necessarily?

charles c.w. cooke

Well, background checks would be clear. Because right there, you’ve got a thing that people do is now criminalized, and would lead to prosecution. And New York has been really good at prosecuting gun crimes. But that has led to an awful lot of people, and they’re mostly young Black men, statistically, going to jail for the first time for fairly minor crimes, on the idea that if somebody is willing to carry a gun without a permit, or to have a magazine he shouldn’t, or to transfer a gun to a friend, or to straw purchase, then he might end up killing someone.

One leads to the other. And if it’s worth it, it’s worth it. But I just note a really interesting tension between the people who say no categorically and the people who say yes, but we don’t want the consequences.

jane coaston

Only one third of American States have an age limit of 21 or older to buy a gun. A court recently ruled that California’s age limit was unconstitutional. In both recent mass shootings in Buffalo and Texas, the shooter was 18. Do you think there should be a federal mandate for all guns of 21?

charles c.w. cooke

Well, the federal government has 21 for handguns and 18 for rifles. And then states can set their own limits, as you know. I don’t think the Ninth Circuit is right. I don’t think it is unconstitutional to set the gun purchase age at 21.

I am open to this. I’m generally frustrated with the gun control movement’s response to mass shootings. Because usually, what they proposed doesn’t intersect with what happened.

And then they put all this moral energy behind it and say, if you don’t to do what we want to do, then you’re in favor of mass shootings. And then I end up saying, but that has nothing to do with what happened. And then we go nowhere.

But actually, with this one, we clearly have this very narrow, very specific problem with mass shootings. And although most mass shootings still are carried out with handguns, increasingly, mass shooters fetishize modern sporting rifles. And a lot of those mass shooters are 18.

And this seems, to me, to be a proposal that is constitutional, that is not particularly draconian, and that would very specifically target this narrow problem of mass shootings, which is 18-year-olds buying rifles and using them.

alex kingsbury

Yeah, I actually agree almost entirely with what Charles said. I don’t it’s going to stop all mass shootings. Again, there are — what do we think, Charles, 12, 14 million AR-15-style rifles out there?

charles c.w. cooke

Yeah, maybe more, yeah.

alex kingsbury

There are a lot of them out there right now. So these things are in circulation. They’re sloshing around there. If somebody really wants to get a hold of them, they’re probably going to do it even if they turn 18.

But this idea that even if you pass a gun law, people are going to break the gun law — well, this is really good evidence, right? The guy waited till he was 18, and then went and bought two of these things and 375 rounds of ammunition. I mean, clearly, here’s a guy who — yeah, I’m going to be a mass killer, but I want to follow the gun laws to be able to do it the most easily.

charles c.w. cooke

Right.

jane coaston

I want to end by thinking about — we’ve talked about background checks, age limits, and red flag laws. But Alex, we’re seeing so many people responding to what’s taken place. Entirely understandably, it feels really weird to just be like, yeah, there’s really not specifically anything we can do that would stop this form of gun violence.

alex kingsbury

I really hope Charles has something more uplifting. Because I’m not going to be totally uplifting —

jane coaston

That’s fine.

alex kingsbury

— about this. I mean, I think there’s a lot of things to say. I used to cover terrorism quite a lot. And I would say this to people, and they’d kind of freak out. But you’re more likely as an American to drown in a toilet than you are to be killed by a terrorist attack.

To be killed in a terrorist attack is extremely rare. And to be killed in one of these spectacular mass shootings, exceptionally rare. They get a lot of play on TV. They’re very horrible, and they should really make us think a whole lot about the culture that we have in the United States.

That said, yeah, I really don’t think there’s a lot that we can do about these spectacular mass shootings, particularly ones with assault weapons or semi-automatic, military-style rifles, because there are so many of them out there. Right now, I have a very young child. And it’s horrifying to hear them go through these live shooter drills that they’re taught in school. And it’s incredibly traumatic for them to do it. And part of me really thinks, after watching these sorts of massacres, that we should just stop with the active shooter drills and teach them first aid instead.

charles c.w. cooke

I think there’s a paradox here. And you touched on a great deal of it. And the truth is that I am much more affected by the news from Tuesday than by reading the suicide statistics, emotionally. But I actually don’t spend much time thinking about how to stop what happened on Tuesday. And I do spend time thinking about what we can do about the suicide rate and what we can do about crime.

If you go back to Columbine 22, 23 years ago, and you average out the number of children and staff who’ve been killed in schools of all types before college, it’s seven a year. Now, that is seven too many. And that’s of no consolation whatsoever to the parents. And if it were me, my life would never be the same again.

But it’s seven compared to 120, on average, who are killed every year on school transportation. And I somewhat regret that as a culture, we spend so much time, as I do myself, crying over this and emoting over this rather than thinking about the daily attrition of suicides and crime.

jane coaston

Right, but I would say that for many people — I mean, think that this actually gets to something Alex mentioned about terrorism. But if we thought of mass shooting events in the same way that we think about terrorism, as a very rare thing that we also work very hard to prevent, and we’ve spent billions of dollars on preventing, and we have people who all they do is think about how to prevent this from happening, and we do limit the civil liberties of people in order to stop this from happening, and we consider success to be it didn’t happen, does that change how we think about this?

alex kingsbury

I think one of the big mistakes of the response to 9/11 was the 1 percent doctrine, right? If there’s a 1 percent chance that this is going to happen, then we should go all-out to stop it. And if we took that approach to mass shootings, we’d live in North Korea.

charles c.w. cooke

Right.

alex kingsbury

Obviously, we do not want to live in a society where we use the 1 percent doctrine on mass shootings. That said, there are a lot of things that we can do. And there are a lot of things that we can set in motion now that will have compounding impacts over time.

There are things that we can do to reduce the number of guns in circulation. And that will reduce the number of deaths. And so if you can save one life next year, and four the next, and six the next, that starts to add up over time. And I think those are projects that are worth pursuing.

charles c.w. cooke

I think it’s good we’re about to finish on a disagreement, I think. It’s just not the case that every single tightening of the gun law improves things. It doesn’t. We saw this for 30 years — as the number of guns in circulation tripled, gun laws were loosened and crime kept going down. So I think this is a lot more complicated.

There are some ways that we can try to deal with this, and we should. But we should do it primarily for suicide and crime, and hope that helps mass shootings at the margin.

jane coaston

Alex, Charles, thank you so much.

charles c.w. cooke

No, it was a pleasure.

alex kingsbury

Thank you, Jane.

jane coaston

Alex Kingsbury is Opinion Editor-at-large and a member of The New York Times editorial board. Charles C.W. Cooke is a senior writer for National Review, a conservative magazine. Some of the pieces we mentioned in this episode are “It’s Too Late to Ban Assault Weapons” by Alex Kingsbury in The New York Times Opinion section. Also read “This Is Why We Need Guns” by Charles C.W. Cooke, published in National Review. You can find links to all of these in our episode notes.

“The Argument” is a production of New York Times Opinion. It’s produced by Phoebe Lett, Elisa Gutierrez and Vishakha Darbha. Edited by Alison Bruzek and Anabel Bacon. With original music by Isaac Jones and Pat McCusker. Mixing by Pat McCusker. Fact checking by Kate Sinclair, Mary Marge Locker and Michelle Harris. Audience strategy by Shannon Busta. With editorial support from Kristina Samulewski. Our Executive Producer is Irene Noguchi.