The Politics of Gun Control, by Robert J. Spitzer, Chatham, N.J.: Chatham House, 210 pages, $25.00/$17.95 paper
Gun Control: Threat to Liberty or Defense Against Anarchy?, by Wilbur Edel, Westport, Conn.: Praeger Publishers, 186 pages, $45.00
Gun Control and the Constitution: Sources and Explorations on the Second Amendment, edited by Robert J. Cottrol, New York: Garland Publishing, 430 pages, $18.95 paper
Guns and the Constitution: The Myth of Second Amendment Protection for Firearms in America, by Dennis E. Henigan, E. Bruce Nicholson, and David Hemenway, Northampton, Mass.: Aletheia Press, 76 pages, $12.00 paper
To Keep and Bear Arms: The Origins of an Anglo-American
by Joyce Lee Malcolm, Cambridge, Mass.: Harvard University Press, 232 pages, $32.50
Guns: Who Should Have Them?, edited by David B. Kopel, Amherst, N.Y.: Prometheus Books, 475 pages, $25.95
Broadly speaking, the debate over gun control deals with two questions: 1) Does it work? and 2) Is it constitutional? If we assume that the latter issue hinges on the intent of the Second Amend ment, these are both empirical questions. Furthermore, they can be answered independently. After examining the relevant evidence, you could conclude that the Framers wanted to protect an individual's right to keep a pistol in his home and that banning private possession of handguns would reduce homicides. Conversely, you could decide that the Second Amendment has no bearing on modern gun control laws and that firearm restrictions have no effect on crime.
But such combinations are rare. In general, people who support the Second Amendment dis miss gun control as ineffective, while people who support gun control dismiss the Second Amend ment as obsolete. This pattern suggests that many of us arrive at a position on gun control (for moral, philosophical, political, emotional, aesthetic, or other reasons) and then interpret evidence in light of it. There is nothing inherently wrong with this. In fact, a vigorous public debate depends on highly motivated, ideologically committed people to dig up evidence and present arguments. But given the strong feelings on both sides of this controversy, we should be wary of sweeping claims, especially when the source pretends to be objective.
Both Robert J. Spitzer's The Politics of Gun Control and Wilbur Edel's Gun Control: Threat to Liberty or Protection Against Anarchy? are ostensibly neutral, scholarly examinations of the topic. Spitzer, a professor of political science at the State University of New York College at Cortland, who "was trained to let arguments and facts speak for themselves," is puzzled by the "almost frantic yet very conscious penchant of a few writers on the gun issue to embrace ideological labels." He announces in his preface that he is a member of both Handgun Control Inc. and the National Rifle Association.
Edel, professor emeritus of political science at the City University of New York's Lehman College, likewise seems anxious to be evenhanded. "In the United States," he writes, "much of the literature on gun control has been written to prove that laws governing the manufacture, sale and/or possession of firearms are either unconstitutional or constitutional, ineffective or essential to public safety, un-American or vital to the protection of a democratic society. Each side has its enthusiasts and its prophets of doom. Those who insist on strict control see the alternative as breeding a society in which the law of the jungle will prevail. Advocates of a free trade in weapons warn that govern ment interference will undermine the constitutional guarantees of personal freedom and, ultimately, lead to dictatorship."
Thus Spitzer and Edel lead the reader to expect balanced, dispassionate analysis. But while neither book has a polemical tone, it is soon clear where the authors' sympathies lie. In their discus sion of the Second Amendment, both Spitzer and Edel give short shrift to an impressive body of scholarship, including some 50 law-review articles and several books, that supports an individualist understanding of the right to keep and bear arms. Endorsing the familiar argument that the Framers' sole intent was to preserve state militias against the threat of federal domination, they create the impression that the Second Amendment's irrelevance to gun control has been established beyond any reasonable doubt. Edel calls the contrary view "fraudulent" and a "misstatement of fact," while Spitzer dubs its proponents "constitutional contortionists." The idea that the Constitution protects an individual right to keep and bear arms, Spitzer assures us, is "without historical, constitutional, or legal foundation."
To understand how gravely Spitzer and Edel misrepresent the state of this controversy, one need only pick up a copy of Gun Control and the Constitution , a collection of law-review articles, court decisions, and legislation edited by Rutgers law professor Robert J. Cottrol. The book suggests the complexity of the issue and the ambiguity of much of the evidence, with different scholars drawing opposite conclusions from the same documents. The clearest and most concise statement of the case for an individual-right interpretation appears in Don B. Kates Jr.'s "Handgun Prohibition and the Original Meaning of the Second Amendment," originally published in the November 1983 issue of the Michigan Law Review. Kates, a California attorney who has been studying gun control issues for many years, argues forcefully that the state-right-only view is implausible in light of the amendment's text, the context in which it was adopted, the comments of the Framers and contempo raneous observers, the understanding of early legal scholars, and 19th-century court rulings.
That evidence has persuaded a number of liberal constitutional scholars that the Second Amendment is not null and void after all. The best-known of these converts is probably University of Texas law professor Sanford Levinson, whose 1989 Yale Law Journal essay, "The Embarrassing Second Amendment," also appears in this volume. "For too long," Levinson writes, "most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family mem bers." He urges his fellow academics to take seriously the idea of a right to keep and bear arms as a check against tyranny. "[I]t seems foolhardy to assume that the armed state will necessarily be benevolent," he writes. "The American political tradition is, for good or ill, based in large measure on a healthy mistrust of the state."
Levinson's article is followed by a response from Dennis A. Henigan, director of the Legal Action Project at the Center to Prevent Handgun Violence, that was published in the Valparaiso University Law Review in 1991. Henigan maintains that what he calls "the insurrectionist theory of the Second Amendment" is "a profoundly dangerous doctrine of unrestrained individual rights which, if adopted by the courts, would threaten the rule of law itself."
The argument, which Henigan reiterates in Guns and the Constitution: The Myth of Second Amendment Protection for Firearms in America, goes like this: If the Second Amendment guarantees every individual a right to arms as a safeguard against tyranny, it must also guarantee every indi vidual the right to use those arms against the government. But the Constitution gives Congress the power to "suppress insurrections" (with the help of the very militia mentioned in the Second Amend ment). Who is to distinguish between legitimate resistance against tyranny and illegitimate insurrec tion? We can hardly leave the decision to the courts, since they are part of the government. But letting individuals decide for themselves is a recipe for anarchy.