Examining the evidence for the right to bear arms.
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 Right, 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 Amendment, 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 dismiss 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 government 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 discussion 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 contemporaneous 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 members." 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 individual 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 Amendment). Who is to distinguish between legitimate resistance against tyranny and illegitimate insurrection? 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.
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 government 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 Journal in 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. Furthermore, 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 isolated 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 is–for now–outdated." 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 example, 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 enshrined 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 clarifying 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 grips–do 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 misleading. 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 acquaintances," 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 acquaintance 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."
But Spitzer explicitly rejects what he calls "the good guy–bad guy myth": the belief "that guns in the hands of good guys are good, whereas guns in the hands of bad guys are bad." Not surprisingly, he is hostile to the idea of armed self-defense. Although Justice Department data indicate that a victim who resists with a gun is considerably less likely to be injured than a victim who does not resist or who resists by other means, Spitzer asserts that "death is more likely to occur when victims resist or are armed." He refers to people foolish enough to want a gun in the house for self-defense as "those inordinately concerned with home protection." He notes that criminologists' estimates of how many times guns are used in self-defense each year have ranged from 80,000 to roughly 1 million. Instead of assuming that the true number lies somewhere in the middle, as caution might dictate when expert opinion is divided, he settles on the low figure, even though (as Kates et al. note) the criminologist who came up with it now concedes that the total is probably in the hundreds of thousands.
"Far from serving as a deterrent to crime," Spitzer writes, "guns in the home are especially tempting targets for theft, particularly since most burglaries occur when no one is home." But the fact that burglars like to steal guns hardly proves that guns do not deter crime; indeed, if Spitzer had stopped to wonder why in the United States (unlike England, for example) "most burglaries occur when no one is home," he might have seen evidence of deterrence.
If Spitzer doesn't like the idea of guns in the home, he is even less keen about people carrying them in public. He grants that an armed train passenger might have stopped Colin Ferguson before he killed six people and wounded 19 on the Long Island Rail Road in 1993. "But if, as a matter of policy, train authorities allowed or encouraged passengers to carry guns," he writes, "the likelihood of gun injuries and deaths would certainly escalate." Later he says, "The consequences of a citizenry armed to stave off crime would inevitably result in more gun crimes and gun deaths." And, "Arms proliferation and carrying among citizens would inexorably lead to an escalation of gun-related violence, injuries, and deaths."
But Spitzer offers no evidence for these confident assertions. He might have considered the experience of states with liberal carry-permit policies, but that would have undermined his case, since the waves of violence predicted by gun-control advocates have not materialized. Instead, Spitzer bases his fear of an armed citizenry on a theory of international conflict that says weapons are bad and more are worse. "The mere act of gun possession," he explains, "is offensive regardless of intent, because weapons are inherently offensive…."
Despite the implications of this theory, Spitzer has to admit that "a host of practical and other problems all but eliminates the citizen disarmament option." Instead he supports "arms control" and "nonproliferation" strategies such as banning "assault weapons" and severely restricting the availability of handguns. Hunters, target shooters, and collectors would still be allowed access to "traditional hunting and sporting weapons." (Edel, who favors a strict licensing system similar to New Zealand's, which lets local police decide who should be allowed to own a gun, is also anxious to avoid interfering with "the activities of hunters, target shooters and gun collectors.") Spitzer thinks allaying the concerns of gun owners is so important that he puts this sentence in italics: "The only way to reconcile fears of control opponents with the efforts of control proponents is to recognize the fundamental distinction between arms control and disarmament."
But this distinction is not likely to reassure anyone, especially when it comes from a political science professor who considers the Second Amendment irrelevant, disapproves of armed self-defense, and would like to disarm gun owners if it weren't for all the "practical and other problems" involved. Every time an advocate of gun control promises not to impair the recreational activities of hunters and target shooters, he demonstrates his contempt for the values underlying the Second Amendment, implying that the issues at stake are trivial.
As Robert Cottrol and Don Kates note in Gun Control and the Constitution, recognizing a constitutional right to keep and bear arms is by no means the end of the gun control debate, any more than recognizing a constitutional right to free speech settles all issues concerning speech restrictions. We still have to resolve questions such as which weapons are covered and what kinds of regulations are appropriate and consistent with the Second Amendment. (In this debate libertarians may well part company with Kates and Cottrol.) But until proponents of gun control concede that it impinges on something more important then shooting deer or putting holes in targets, they should not be surprosed that many people find their proposals inherantly offensive, regardless of intent.