11 days after Stephen Paddock gunned down 59 people in Las Vegas on Oct. 1,  gun control is back in the spotlight with the usual suspects lining up on either side of the fence. 

After some 72 hours of flirting with a possible ban on “bump stocks,” which can increase the rate of fire of a semi-automatic weapon, the National Rifle Association (NRA) came out swinging last weekend, with the group’s Executive Vice President Wayne LaPierre suggesting that Sen. Dianne Feinstein (D-Calif) was using a potential bump stock ban as a cover to “turn this all into some Christmas tree on the Hill where she brings all her anti- gun circus …into this.”

While it is not clear how Republicans on the Hill are responding (several had already expressed interest in banning the devices), it would seem that for now, the gun lobby is falling back into its usual ready position, girding for a fight. In this case, a new “law” is less preferred to merely regulating bump stocks. “We believe that bans have never worked on anything,” Chris Cox, executive director of the NRA’s legislative arm.

Regardless of what happens with bump stocks, the October 2 mass shooting in Las Vegas, perpetuated by a legal gun owner with no criminal record, has reignited the debate over ready access to firearms in this country.

One reality that gun control advocates must come to grips with is the fact that unlike other democracies around the world—for better or for worse—gun ownership is a Constitutionally protected right, as enshrined by the Second Amendment. So substantially reducing gun ownership or getting rid of guns (such as has been done in England and Australia) is not a simple “technical” solution. As such, they may have to deal with daunting task of actually repealing the Second Amendment.

Short of that, there is certainly room to debate whether the Second Amendment allows for reasonable regulation of firearms and what “reasonable regulation” means.

To begin, of all the amendments to the Constitution, the Second Amendment is the most “poorly” written: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Compared to the rest of the Constitution and Bill of Rights, and knowing that our Founding Fathers were otherwise eloquent speakers and writers, it’s frustrating that so much here is left to interpretation. Especially so in our modern era.

Is it about having a “well regulated Militia”? Well, we don’t really have one. Yes, the National Guard is under the purview of governors. But the reality is that it’s a federalized entity. And why did our Founding Fathers want such a militia? Because they wanted the states to be able to resist a strong, centralized federal government. Maybe in the late 18th century it might have been possible for the armed citizenry of states to resist a federal government that the Founding Fathers saw as being too strong or tyrannical—especially since at the time, they didn’t believe in having a large, standing national army. But that is pure fantasy today.

If so, what if the Founding Fathers envisioned regular Americans as the “militia,” itself, hence, “the right of the people to keep and bear Arms, shall not be infringed”? So it would serve that the Second Amendment ensures this right, and twice now the U.S. Supreme Court has agreed that it does—District of Columbia v. Heller in 2008 and McDonald v. Chicago in 2010.

The Supreme Court has ruled on several occasions that no right is absolute, however. Even free speech has its limits. In Schenck v. United States (1919), Supreme Court justice Oliver Wendell Holmes wrote that “the most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.” So, should the Second Amendment be regulated such that it would make it impossible for Paddock to buy 33 guns in the span of a single year, as well as all the hundreds (probably more like thousands) of rounds of ammunition?

This is where “well regulated” can come in and complicate things for the purists on either side.

Certainly, there is some truth to the NRA mantra that “guns don’t kill people, people kill people.” Gun rights advocates have long argued that we need to keep
guns out of the hands of criminals and restrict gun ownership of law abiding
citizens. Fair enough. But what constitutes a law abiding citizen? Arguably,
Paddock was a law abiding citizen right up until the moment he decided
to pull a trigger and shoot people.

One could argue that after a tragedy like Las Vegas, where Paddock was able to amplify the number of dead and wounded by using a bump stock that the NRA might use this moment to show it truly supports reasonable curbs, especially since it’s been quite adamantly against banning other devices, including such flash suppressors, bayonet mounts, and folding stocks, as well as as high capacity magazines.

But the NRA, and in particular, gun owners across the country, are skeptical of the other side’s motives when it comes to regulation, and with reason. Much of the rhetoric following high-profile shootings like Las Vegas, or the Sandy Hook Elementary School tragedy, are to “take guns off the streets” and to “end the gun culture,” comparing American firearm policies unfavorably to that of England and other countries in Europe, where there is no individual ownership. Even with the Second Amendment behind them, owners see this as code for eventual confiscation, spotting a slippery slope right behind the soft tones of “responsible measures.”

To be sure, gun control advocates like to say if guns are less accessible, or less lethal, people like Paddock wouldn’t be able to accumulate them and kill people. Fewer guns, fewer deaths. But we know it is more complicated than that. 

Leah Libresco, a statistician and former writer at Nate Silver’s data-obsessed FiveThirtyEight who describes herself as anti-gun, used to think gun control was the answer but her research told her otherwise.

According to Libresco, “the case for the policies I’d lobbied for [e.g., banning assault weapons, restricting silencers, shrinking magazine sizes] crumbled when I examined the evidence” and that the best ideas were “not broad attempts to limit the lethality of guns.” FiveThirtyEight’s research showed that of the 33,000 people killed by guns each year in the United States:

  • Two-thirds of gun deaths in the United States every year are suicides.
  • The next-largest set of gun deaths — 1 in 5 — were young men aged 15 to 34, killed in homicides. These men were most likely to die at the hands of other young men, often related to gang loyalties or other street violence.
  • And the last notable group of similar deaths was the 1,700 women murdered per year, usually as the result of domestic violence.

“Far more people were killed in these ways than in mass-shooting incidents, but few of the popularly floated policies were tailored to serve them,” said Libresco. “By the time we published our project, I didn’t believe in many of the interventions I’d heard politicians tout.”

Perhaps it comes down to this: Until we find a different way of thinking about—and talking about—guns beyond the shrill rhetoric of both the anti- and pro-gun lobbies, there will always be loopholes that the Stephen Paddocks of the world can exploit. Today, bump stocks, tomorrow something else. The purists need to stop putting up the same old roadblocks and let a new conversation begin to be able to find practical and workable solutions.

Charles V. Peña is the former Director of Defense Policy Studies at the Cato Institute and former Senior Fellow at the Independent Institute. He is the author of Winning the Un-War: A New Strategy for the War on Terrorism.