The weak link in this argument is the assumption that a constitutional right to be armed can help prevent tyranny only if it is paired with a constitutional right of revolution. But if the Framers believed that an armed populace would discourage tyranny, it was not because rebels would be able to cite the Second Amendment when they were hauled into court. It was because rebels would be armed.
The Framers thought it was safer to trust the people with weapons, in the belief that a broad -based rebellion would occur only if the government truly overstepped its bounds, than to give the state a monopoly on arms. In the case of a legitimate rebellion, the government has by definition abrogated the Constitution. In such a situation, people have a natural right to revolt, but they can hardly expect the government to respect that right. Henigan seems to recognize this point at the end of his essay, where he says, "If there is a right to resist totalitarianism through violent resistance, its origin is extra-constitutional, whether it be some notion of 'natural law' or 'moral rights.'" Of course, the whole Constitution is designed to protect pre-existing rights, and preventing the govern ment from disarming the people plays a part in that scheme.
A more interesting response to Levinson comes from Cornell law
professor David C. Williams. In "Civic Republicanism and the
Citizen Militia," originally published by The Yale Law
Journalin 1991, Williams agrees that the "militia" of the
Second Amendment was a
militia of the whole, encompassing (in theory, at least) all
citizens capable of bearing arms. Further more, he emphasizes that
the militia was intended not only to defend the country against
invasion and the states against federal encroachment but also to
defend the people against both state and federal tyranny.
He argues, however, that the republican vision of the militia requires universal service, virtuous citizens, and government training. "The militia must be the whole people acting together, not iso lated persons acting individually," he writes. "As today we have no such universal militia and no assurance that contemporary arms-bearers will be virtuous, the Second Amendment itself isfor nowoutdated." Thus Williams, like Edel and Spitzer, does not consider the Second Amendment an impediment to gun control. But unlike them, he treats his opponents respectfully, and his conclusions do not have the same arrogant tone.
Edel and Spitzer's dismissive attitude is especially remarkable because their own treatments of the Second Amendment's context and interpretation are tendentious and superficial. Edel, for ex ample, devotes all of seven pages to weapon rights in England and finds nothing there to support the individualist view of the Second Amendment. He implies that, even after a right to arms was en shrined in the 1689 Bill of Rights, it was so limited by game laws and other restrictions that it was nothing like the right claimed by modern gun control opponents.
Yet Bentley College historian Joyce Lee Malcolm has assembled compelling evidence that a duty to keep arms for common defense against invaders and criminals developed into an individual right that Englishmen of the 18th and 19th centuries saw as vital to maintaining liberty. She lays out that evidence in To Keep and Bear Arms: The Origins of an Anglo-American Right , which was published last year. Even if Edel did not have access to the book before he completed his manuscript, a 1983 article by Malcolm in the Hastings Constitutional Law Quarterly (reprinted in the Cottrol collection) also argues that the English right to arms is important in understanding the Second Amendment. Edel does not make a serious attempt to deal with this material.
Similarly, Spitzer refuses to admit that the Supreme Court
decision Dred Scott v. Sandford >might have some
bearing on the meaning of the Second Amendment. In Dred
Scott, Chief Justice Roger B. Taney objected to the idea of
recognizing blacks as citizens because "it would give to persons of
the negro race...the right to enter every other State whenever they
pleased,
...and it would give them the full liberty of speech in public and
private upon all subjects upon which its own citizens might speak;
to hold public meetings upon political affairs, and to keep and
carry arms wherever they went." (Emphasis added.) On the face
of it, the fact that the chief justice of the Supreme Court in 1857
took it for granted that citizens had a right to keep and bear arms
would seem to be relevant to the debate over the Second
Amendment.
But Spitzer disagrees: "The foolishness of an argument predicated on a court case that ruled against the rights of blacks at a time when slavery was still legal indicates why the concern over blacks carrying guns expressed by the justices arose in the first place." That sentence is difficult to decipher, but it's clear that Spitzer considers any use of Dred Scott in this context foolish. What's not clear is why. He goes on to note that Dred Scott was overruled by the 13th and 14th Amendments, so "it does not stand as law, and is irrelevant to the interpretation of the Second Amendment." That's quite a leap. The scholars who cite Dred Scott to support an individualist interpretation of the Second Amendment are not claiming that Taney's comment about the right to keep and bear arms is legally binding; they are simply arguing that it casts light on the view of that right among leading jurists of the time. It is hard to believe this distinction escaped Spitzer.
When Spitzer and Edel consider the goals and consequences of gun control, they are not so quick to dismiss opposing arguments. But their discussions are riddled with errors, misleading statements, and unjustified assumptions, all of them favoring proponents of gun control.
The most striking example is their treatment of the "assault weapon" issue. Instead of clarify ing matters, Spitzer and Edel help perpetuate the confusion fostered by gun control activists and the news media. As David B. Kopel, research director at the Independence Institute, shows in his careful and thorough chapter on this topic in Guns: Who Should Have Them? , there is little rhyme or reason to the firearm distinctions enshrined in "assault weapon" bans. The guns singled out by the laws are not particularly powerful; they are rarely used by criminals; they do not fire any more rapidly than other semi-automatics; and they cannot be easily converted into machine guns. The criteria used to identify "assault weapons"such as folding stocks, threaded barrels, bayonet mounts, and pistol gripsdo not make them uniquely suitable for mass murderers and drug dealers.
In fact, these features are so unimportant that many
manufacturers have simply eliminated them from their guns,
transforming evil "assault weapons" into legitimate firearms. "Gun
control advocates will point out, quite correctly, that the new
guns such as the Intratec AB-10 are only trivially different from
their 'assault weapon' predecessors," Kopel writes. "But it was the
gun control advocates, after all, who insisted that features like
bayonet mounts were the essence of
differentiating a 'bad' gun from a 'good' gun."
For their part, Edel and Spitzer seem intent on reinforcing the
popular image
of "assault weapons," although endnotes and passing comments
suggest they know better. Edel describes "assault weapons" as
"rapid-firing guns of military origin" and incorrectly states that
they include machine guns. He says Patrick Purdy "sprayed" a
Stockton, California, schoolyard with bullets from a semi-automatic
rifle (firing one shot per trigger pull). But later he concedes
that opponents of the federal "assault weapon" ban "were
technically correct" when they said there was little functional
difference between the guns targeted by the ban and hundreds of
models that would remain legal.
Spitzer's discussion is also a strange mix of hyperbole and backpedaling. In the beginning of his section on the "assault weapon" ban, he mentions George J. Hennard's 1991 attack on a cafeteria in Killeen, Texas, the worst mass murder by a gunman in U.S. history. But as an endnote reveals, Hennard used two semi-automatic pistols, neither of them an "assault weapon." Coming in the middle of the "assault weapon" discussion, the reference to the Killeen massacre is grossly mislead ing. Another endnote concedes that "the distinction between semi-automatic hunting and many assault weapons is mostly cosmetic." Spitzer also admits that "assault weapons are infrequently used by criminals." The only logical reason he can offer for singling them out is that they tend to come with larger magazines. But as Kopel notes, "any gun that accepts detachable magazines can accept a magazine of any size." And since it takes only a second or two to change clips, limiting the size of magazines (as the federal "assault weapon" ban does) is not likely to have much of an impact.
The menace of "assault weapons" is just one of several gun control myths that Spitzer seems eager to pass on. Another is the notion that many (most?) gun homicides grow out of disagreements between friends or relatives and would not have occurred if a gun hadn't been in the house. "[A]bout three-fifths of handgun murders are committed against relatives, friends, neighbors, or other ac quaintances," Spitzer writes. "About half of handgun killings escalate from arguments that get out of hand." Later he says "many homicides are the result of impulsive actions taken by individuals who have little or no criminal background and who are known to the victims." The implication is that murderers are just like you and me, more or less, except that they happened to be around a gun at the wrong time.
In an incisive critique of the public health literature dealing with guns (included in Kopel's collection), Don Kates and four co-authors note that "it simply is not true that law-abiding citizens commit most murders or many murders or virtually any murders....Among the facts most clearly established in studies of murder is that murderers tend to be extreme aberrants who cannot realisti cally be assumed to have much more compunction about flouting gun laws than about brutalizing others. The great majority of murderers have life histories of violence against those around them, felony records, substance abuse, and car and other dangerous accidents." Kates et al. add that ac quaintance homicides and murders following arguments typically are not "previously law-abiding people killing each other, but abusive men eventually killing women they have savaged on many previous occasions; gang figures or drug dealers killing each other, or killing, or being killed, by addicts and other customers."
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