Illinois Gov. J.B. Pritzker (D) and others responded to the massacre in Highland Park, Illinois with calls for more gun limits and bans. Pritzker repeated a dubious musket argument but also ignored that Illinois has some of the most stringent gun laws in the country, including bans on assault weapons and a red flag law. The media is reporting that Robert “Bobby” Crimo III, an aspiring rapper, is a person “known to law enforcement.” His postings reveal highly disturbing videos and bizarre images, including violent references.
Pritzker appeared in Highland Park after the shooting to call for more limits and criticize the protections afforded under the Second Amendment to gun owners. Pritzker repeated the common argument that
“Our founders carried muskets, not assault weapons, and I don’t think a single one of them would have said that you have a constitutional right to an assault weapon with a high-capacity magazine or that that is more important than the right of the people who attended this parade today to live.”
President Biden has made an analogous and clearly false claim that certain guns were banned for private ownership when the Second Amendment was ratified: “The Second Amendment is not absolute. When it was passed you couldn’t own a cannon, you couldn’t own certain kinds of weapons. There’s just always been limitations.”
Once again, there were no federal laws barring cannon ownership when the Second Amendment was enacted. Gun laws remained local matters and I do not know of any bans on cannons or other gun types until much later in our history. Early local laws did control concealed weapons, though concealed cannons were not part of those ordinances.
Indeed, the Constitution itself supports private cannon ownership in the case of privateers. Article 1, Section 8, Clause 11 allows Congress to “grant Letters of Marque and Reprisal.” That allowed private parties to privateer on the high seas with . . . cannons. (Recently some members of Congress wanted to issues such letters of Marque again to enlist privateers in the fight against Russia).
Pritzker’s musket argument is equally dubious. He presumably does not take the same narrow reading of other parts of the Constitution on individual rights. For example, he recognizes that privacy is protected even though it is not mentioned and our notion of privacy rights has become more expansive over time. The “living Constitution” model allows for such expanded meaning.
Moreover, while the Framers were used to “letters” (and the Fourth Amendment references letters), few would argue that the same protection does not apply to electronic letters in the form of emails or digital files with communications.
In the end, the musket argument is often the fallback position for those who previously opposed interpreting the Second Amendment as an individual right. Some, however, also pushed that line of argument. Philadelphia Mayor Jim Kenney suggested that only police should have any guns of any kind.
What is interesting is that this is a state with some of the most stringent gun laws in the country. That includes a red flag law, a waiting period for gun purchases, background checks, gun owner licensing, domestic violence gun laws, and “open carry regulations.” This and other counties have “assault weapons” bans.
According to the mayor, this weapon was “legally obtained.”
As with past calls following such tragedies, the question is what in addition Pritzker is advocating that would have stopped this massacre. A high-capacity magazine ban would not stop such shootings. Anyone with a modicum of experience with weapons can swap out magazines in a matter of a seconds.
What may have stopped the massacre is the enforcement of the red flag laws given the dark and deranged postings of this individual. However, such laws depend on people reporting such warning signs and police enforcing the laws. The fact is that many shooters are not known to police or experience a sudden and lethal turn where such laws are largely ineffective.
As a Chicago native, I am very familiar with this area and spent a great deal of time in Highland Park and neighboring towns. It is a very affluent area with a relatively small population. Yet, even in this small community with considerable assets for mental health and law enforcement intervention, red flag and other laws did not prevent the shooting.
For politicians like Pritzker (and President Biden) who raised new limits after this shooting, there should be a demand for specifics on not just how they will constitutionally limit guns but whether such limits would have actually prevented this tragedy. There remain areas where we can make real progress, particularly in the greater funding of mental illness programs. However, there must also be greater honesty about the range of constitutional and practical options in dealing with such shootings.