By Dave Kopel
America's 1st Freedom, Dec. 2011. More by Kopel on polls about the gun issue.
Are civil rights advocates winning the battle for the hearts and minds of the American people? Yes. Does that mean that the Second Amendment is now so secure that we can abandon the field of battle? Absolutely not.
Careful examination of polling data shows that we have come a long way in the past few decades--but there is still a long way to go.
This data reveal two particular long-term threats to the Second Amendment. First, there is a substantial minority in the United States--as much as a third of the population--that remains resolutely hostile to the Second Amendment and to gun rights, even after the Supreme Court's decision in District of Columbia v. Heller.
Second, that anti-rights minority continues to have many opportunities to turn its views into the law of the land, thanks to widespread ignorance about how strict gun control laws are already. While the large middle of American public opinion is not "anti-gun," much of the middle has very little idea about the depth, breadth and severity of current gun controls. As a result, that middle can be easily manipulated by the hard-core anti-gun rights faction.
Over the long term, public opinion can be changed by the Supreme Court. During the latter half of the 20th century, the Supreme Court mostly ignored the Second Amendment and allowed lower federal courts to get away with declaring the Second Amendment does not protect an individual right. The Court's malign neglect played an important role in convincing gun prohibitionists that the Constitution was on their side, and in convincing many other people that the Constitution was no obstacle to gun prohibition.
The Supreme Court's decisions in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) have, conversely, initiated a virtuous cycle in which Supreme Court affirmation of constitutional rights solidifies public belief in the right, and thus has produced a climate of opinion that is favorable for further judicial and legislative protection of the right. On the other hand, if a re-elected President Barack Obama can appoint just one more justice, then the 5-4 decisions in Heller and McDonald could be reversed or hollowed out; a vicious cycle of disrespect for the Second Amendment would commence, and whether widespread gun ownership could survive in the long term would be quite questionable.
Perhaps the best evidence of long-term cultural progress can be found in the Gallup Poll. Gallup has been polling on gun control since 1959 with the question "Do you think there should or should not be a law that would ban the possession of handguns, except by the police and other authorized persons?"
The question is somewhat flawed, with its language about a handgun ban "except by the police and other authorized persons?" A person who does not want to prohibit handguns but does want to require that every handgun owner must have a license (as is currently the law in New York and several other states) might answer "yes," because licensed handgun owners would be "authorized persons."
Indeed, the National Instant Criminal Background Check System, in place since 1998, requires a background check and government authorization (from the FBI, or a state counterpart) for all retail purchases of handguns or long guns. So a person who knows about NICS, and likes it, might answer "yes" to the Gallup question, since the only persons who can buy handguns under NICS are "authorized persons."
Despite this flaw in the wording, the Gallup question is useful because the same question has been asked for more than 50 years. Presumably, whatever inaccuracies are caused by the wording would be about the same over the years.
The data, available on Gallup.com, show that support for handgun prohibition was at 60 percent in 1959. Over the last half-century, support for prohibition has fallen by half, so by 2010 only 29 or 30 percent of the public supported prohibition. That's great news.
Yet the Gallup data also counsel against lazy triumphalism by gun owners. Note that the modern split on handgun prohibition (by 2009, 70 percent were against a ban, 30 percent were for a ban) is nearly the same as the split that existed in 1980. But within a few years, the 1980 gap of nearly 40 percent had closed to under 10 percent.
So the handgun prohibition advocates, while never re-capturing their lost majority, kept the public opinion contest fairly close during the 1980s and early 1990s. Being not too far behind in national opinion, they attempted to impose handgun prohibition in places where they thought they could garner local majorities.
Importantly, the National Rifle Association was able to stop the gun prohibition lobbies from exploiting local advantages. The NRA convinced legislatures around the nation to adopt preemption laws that prohibited local governments from banning handguns. As a result, when the Supreme Court heard the Heller case in 2008, handgun prohibition in America was very rare--confined only to D.C., Chicago and some Chicago suburbs.
As a practical matter, the Supreme Court is much more willing to act against national outliers than against national norms. So regardless of how strong the arguments were about the original meaning of the Second Amendment, if by 2008 there had been handgun bans in 45 cities and 4 states, then Heller might well have come out the other way.
The road to victory in Heller was paved by NRA activists who stopped state and local handgun prohibition in the previous century.
Since 1990, Gallup has also been asking: "In general, do you feel that the laws covering the sale of firearms should be made more strict, less strict or kept as they are now?" Back in 1990, 78 percent favored stricter laws. By 2010, "more strict" had declined to 42 percent. For the first time ever, "kept as they are now" received the most support with 44 percent. "Less strict" improved from 2 percent in 1990 to 12 percent today.
The Harris Poll has asked the broader question of whether gun control laws should be "stricter." That figure stood at 69 percent in 1998, declining to 45 percent by 2010. Meanwhile, in 2010 a total of 26 percent said that gun laws should be less strict, while the remainder of Americans wanted no change.
CNN polling shows the same general trend. In 2009, 39 percent favored stricter gun control laws (whereas 50 percent did so in 2000). Keeping gun laws the way they are now was supported by 46 percent, and 15 percent said that the laws should be relaxed (only 9 percent thought so in 2000).
The declining support for "stricter" laws in the Gallup/Harris/CNN polls is good news, indicating that most of the moderate public no longer believes that stricter laws are needed. The percent of the public that wants "stricter" laws is only about 13 percent higher than the 30 percent hard core that still want to ban handguns. Many of the moderates who in the early 1990s favored "stricter" (but not prohibitory) laws may be satisfied with the national instant check system, which did not exist in 1990.
While pressure for national anti-gun laws has been reduced, a serious problem remains: In the corridor of states from Baltimore to Boston, and in California and Hawaii, a large percentage of the American public live under gun laws that arbitrarily discourage gun ownership and defensive gun carrying. Chicago, New York City and the District of Columbia are even worse. Such laws are obviously dangerous to public safety in those jurisdictions. They are also a threat to gun owners everywhere.
By discouraging gun ownership, the oppressive laws reduce the long-term number of Second Amendment activists. This reduction changes the political calculus--so that being a relentless anti-gun advocate may be advantageous to politicians from those jurisdictions. Those politicians, in turn, work hard, and sometimes successfully, to impose nationwide the bad laws from their home states or cities. New York City's Charles Schumer and San Francisco's Dianne Feinstein are perfect examples.
In the long run, the only thing that will prevent the election of future generations of Schumers and Feinsteins is reforming the gun laws in places like New York, California, Chicago, New Jersey and Massachusetts, so that gun owners in those areas are no longer a small and easily persecuted minority.
An enduring problem for Second Amendment rights is public ignorance about guns and about existing gun control laws. Pollsters rarely attempt to find out what respondents actually know about guns and gun laws. One poll that did was conducted by the New Jersey Institute of Technology and reported in the Newark Star-Ledger on Feb. 23, 2003.
For six years, the New Jersey state legislature was engaged in a high-profile debate on "smart guns," with a smart gun mandate being enacted in 2003. Eighty-three percent of New Jersey residents favored the mandate. But as the Star-Ledger reported, "one big detail apparently escaped nearly two-thirds of those polled: The technology for such a weapon has yet to be developed." Sixty-three percent of New Jersey residents thought that "smart guns" were already in existence.
A "smart gun" is supposed to use advanced technology, such as palm-print readers in the grip of a handgun, to prevent the gun from being used by an unauthorized person. Yet despite millions of dollars in government funding for "smart gun" development over the last 15 years, such guns have never advanced beyond the prototype stage.
The New Jersey law will forbid the retail sale of all ordinary handguns once the state attorney general certifies that so-called "smart" handguns are on the market. Perhaps some of those New Jersey residents who favored the mandate might have thought better if they knew that the mandate was for something that has not been invented and that, if it ever does come to market, there is no guarantee that it will be reliable enough to depend on in a sudden emergency.
Public ignorance also accounts for support for other prohibition measures. According to a 2009 CBS/New York Times poll, 54 percent of Americans favor a ban on so-called "assault weapons." Almost half of persons who have guns in their homes also favor the ban, according to that research.
That's consistent with an April 2011 poll by NBC and The Wall Street Journal that found 53 percent of respondents favoring a ban. The current figures are actually an improvement from 1991, when 75 percent wanted a ban.
As readers of this magazine know--but many other Americans, including many gun owners, do not know--so-called "assault weapons" are not in any way more dangerous or powerful than other firearms. They are simply a subset of semi-automatic firearms that work the same as any others. Two decades ago, only about a quarter of the American public understood the truth. Over two decades, the NRA has apparently been able to inform an additional 20 percent. Yet obviously the national media, which has been even more biased and inaccurate on "assault weapons" than on other gun issues, has succeeded in keeping the majority of Americans convinced of something that is not true at all.
Polls have also shown large majorities, including many gun owners, favor gun registration. What much of the public apparently does not understand (and the media has not told them) is that ever since the federal Gun Control Act of 1968, every retail gun sale is recorded at the point of sale by the Form 4473 that the gun buyer must fill out. That form is retained by the dealer, and may be viewed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) whenever it is conducting a bona fide criminal investigation. The forms may also be viewed by BATFE during annual dealer compliance inspections.
Obviously, there is still much work to be done in overcoming media misinformation of the American public.
Winning the culture war also depends, in the long run, on maintaining and growing a social base of tens of millions of gun owners--and tens of millions more people who may not own guns personally, but who have had enjoyable experiences using guns occasionally--who understand the basics of how firearms work and who are, therefore, supportive of gun ownership.
that NRA volunteers do to promote
a healthy and responsible gun culture in the United States is, in effect,
working to defend the Second Amendment. Educating the public in
safe and responsible firearms use has been at the heart of the NRA since its founding in 1871. Today, that work is even more important.
There is no other constitutional right whose survival is so closely tied to a civil rights organization as the Second Amendment's survival is tied to the NRA. Without a thriving NRA, Second Amendment rights would already have been obliterated, replaced by an English-style limited privilege to own some "sporting" firearms.
Thus, it is essential that the NRA itself continue to enjoy broad public approval, which has been the norm during the NRA's 140 years. A 2005 Gallup poll found that the NRA is viewed favorably by 60 percent of Americans and unfavorably by 34 percent--an improvement from a 51/39 split in 2000.
The leadership of the late Charlton Heston played a starring role in the American public's increasingly favorable view of the NRA. However, favorability also depends on the individual actions of every single NRA member. When a hunter with an NRA cap spends an hour helping a hiker get her car out of a ditch, that shows exactly what kind of people make up the NRA. Conversely, if someone with a pro-gun bumper sticker on his car drives in a rude, aggressive or dangerous manner, the driver has, in effect, turned himself into a mobile advertisement for gun control. So, especially when you are wearing or displaying the proud name and colors of the National Rifle Association, live up to the high standards of responsibility that the NRA embodies.
Polls confirm that pro-rights forces have made tremendous progress in the culture war of the last several decades. Yet we still have far to go before Second Amendment rights will truly be secure.
Giving up on Second Amendment activism now would be as foolish as if the Continental Army and the militias had disbanded after the great victory at Saratoga in 1777. Years of struggle are still ahead if we really do mean to preserve our inalienable rights. If we stop fighting now, all the hard-won gains of the last decades could speedily be lost.