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Tyranny of the losers and the politics of gun control

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This is a guest post by Lisa L. Miller. Lisa is a (freshly promoted!) Professor of Political Science and the 2015-16 John G. Winant Visiting Professor of American Government at the Rothermere American Institute at the University of Oxford. Her most recent book, The Myth of Mob Rule: Violent crime and democratic politics, is published by Oxford University Press.

Growing up in the United States means learning that the Framers of the Constitution were preoccupied with tyranny of the majority and thus created a system of “checks and balances” designed to mitigate its possibility.

Yet, what Americans call “checks and balances,” political scientists call “veto points” – structurally embedded political opportunities for the electoral losers to block or override the winners – and the U.S. is rife with them.

The vilification of the American public and its political leaders for not enacting gun control obscures this fundamental cause of gun control failure, tyranny of the minority, which is made possible by the very checks and balances that Americans so routinely celebrate.

The disproportionate Senate – where each state has two representatives regardless of size – is a particularly stark example of just how easily and routinely political minorities override political majorities, and its impact on gun control policy is profound. A 2015 bill, for example, which was proposed after the shooting deaths in San Bernadino, California that killed fourteen people, would have extended FBI background checks to every gun purchase, including currently unregulated gun shows and online sales. The bill went down to defeat with just 48 yea votes to 50 nays.

But the 48 Senators that voted in favor of the bill actually represented 58% of the American population. The 52 who voted against the bill represented just 42%. A very similar bill was defeated in 2013, despite 54 votes in favor, due to an arcane Senate rule known as the filibuster. In that case, the 54 yea votes represented a full 62% of the population.

In other words, all the talk of Americans’ attachment to guns and demands that Congress act overlook the fact that a pro-gun control majority exists and, but for the undemocratic structure of the Senate, the United States would have substantially more gun regulations

And the Senate is not the only veto point that makes it hard for the pro-gun control majority to see its policy preferences enacted. Separation of powers means that opponents of any type of gun control measure need claim only one of the three branches of government at the national level (the House of Representatives, the Senate or the Presidency), since all three are required for passage of legislation. If all else fails, there is always the Supreme Court, which, after more than a century of upholding gun control legislation as perfectly consistent with the Constitution, has begun to strike down legislative acts aimed at reducing gun violence (e.g., U.S. v. Lopez, D.C. v. Heller and McDonald v. Chicago).

Some will say that gun control is precisely the type of policy that was intended to be addressed by state governments, not the national government, and that allowing Congress to increase the scope of its jurisdiction on this issue is precisely the sort of governmental and majoritarian mission creep that the Framers of the Constitution were trying to guard against.

But even if we think we should emulate the intent of 18th century Englishmen in the 21st century American context (and it’s not at all clear we should), such claims give us little guidance as to which subnational majorities should be able to override national ones or when. When and why, that is, should non-majority policy views be permitted to disrupt or downright override the majority? We might all agree that there are times when political losers should be granted such extraordinary power, but that is quite a different matter from allowing them to override majorities as a matter of routine politics.

Moreover, gun control is the worst type of policy to leave to state governments because it falls prey to precisely the kind of inter-state activity that individual states cannot regulate without cooperation from others. Far from being so-called ‘laboratories’ of democracy, states are cross-contaminated by free and open borders, meaning that strict gun laws in one state are routinely thwarted by liberal laws in another. Ironically, spiraling violence was a major impetus for the Constitutional Convention, which sought to strengthen the capacity of the national government to solve national problems, not to hamstring it.

Enacting public policy is harder than simply blocking it and the U.S. system of separation of powers, mal-apportionment in the Senate, federalism and judicial supremacy allows extremist views to maintain the status quo, even when a sizeable majority of the public wants change.

Let’s start a new narrative: Majority rule is not tyranny and losing is not oppression. The American political narrative of checks and balances is overly preoccupied with the dangers of political majorities when the true threat to American democracy is the ability of electoral losers to nonetheless defeat the policy preferences of the winners.

This, in turn, creates enormous frustration among the electorate and delegitimizes politics and politicians, driving people even farther away from the political process and making it even more likely that political minorities will have disproportionate influence on policy.

Recognizing this may leave the electorate even more pessimistic about the prospects for gun control than before. But without acknowledging how our constitutional system facilitates rule by a virulent political minority, we risk pouring large amounts of political energy into efforts to change hearts and minds when, in fact, a majority of minds don’t need changing. What we need is to undermine the idea that rule by the few is the American way and to identify ways to overcome obstacles to implementing majority preferences.

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