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The Law -- March 1996

Second Thoughts on the Second Amendment

At the heart of the gun-control
debate is a fundamental tension between
republicanism and individualism


by Wendy Kaminer

CALMLY, patiently, with considerable bravery, the instructor at the shooting range shows me how to fire the submachine gun, a MAC-11--the first real gun I have ever held. It jams repeatedly. "That's why they call it a Jam-o-matic," someone says. Finally, anticlimactically, like an idiot, I am shooting up the floor (the instructor told me to aim down). Seven or eight men standing behind me await their turns.

The fully automatic MAC-11--small, relatively lightweight, with little recoil--is less intimidating than the semi-automatic rifles, which I can't quite bring myself to use. I am anxious enough around the handguns. "Lean forward," the instructor keeps telling me, while I lean back, trying to get as far away from the gun as I can. How do thirteen-year-olds do this? I wonder, trying not to hurt myself with a huge, heavy revolver. I jump every time a shot is fired (and can't wait for the guys to stop playing with the machine gun). I can barely get the slide back on one of the semi-automatic handguns. But I'm pleased when I hit the target with the 9mm
Glock, the only one of these guns I can imagine being able to use. And when someone offers me a casing from the Walther PPK I've just shot (James Bond's gun, everyone points out), I pocket it.

I've been invited to the shooting range to "observe and try out the right to bear arms in action," along with about twenty other participants in a two-day seminar on guns and the Constitution, sponsored by
Academics for the Second Amendment. Funded partly by the National Rifle Association, Academics for the Second Amendment isn't exactly a collection of academic gun nuts--most of its more than 500 members aren't academics, and its president, Joseph Olson, an NRA board member and a professor at Hamline Law School, in Minnesota, seems a rational, open-minded man. But the organization is engaged in a genteel lobbying effort to popularize what many liberals consider the gun nut's view of the Second Amendment: that it confers an individual right to bear arms, not just the right to bear arms in a well-regulated militia.

Since it was founded, in 1992, Academics for the Second Amendment has held four by-invitation-only seminars for academics who share its beliefs about the Second Amendment--or might be persuaded to adopt them. The year before last I asked permission to attend a seminar but was turned down; last year I received an unsolicited invitation, apparently in response to an article in which I had questioned the effectiveness of traditional approaches to gun control.

Don Kates, who is a San Francisco lawyer, a gun aficionado, and the author of numerous articles on guns and the Constitution, leads the seminar energetically, taking only a little time out to show us pictures of his parrot. His approach is scattershot, or spray and pray. Ranging over legal, moral, and practical arguments for private gun ownership, he discusses self-defense and the deterrent effect of an armed citizenry; the correlation between guns and crime; difficulties of enforcing gun controls; bigotry against gun owners; and, finally, constitutional rights. Comments by participants are sometimes sensible and occasionally insane: one man proclaims that mothers should give guns to children who attend dangerous public schools.

"What would you do if you had a fourteen-year-old kid who felt he needed a gun for self-defense?" he asks me repeatedly.

"I'd take him out of school before giving him a gun."

But even among gun advocates there is relatively little support for the rights of juveniles to own guns, or opposition to bans on juvenile ownership. Opposition to gun prohibitions focuses on attempts to disarm more or less sane, law-abiding adults, who are deemed to be endowed with both natural and constitutional rights to self-defense against criminals and despots.

Like moral and legal claims about gun owners' rights, the practical consequences of widespread gun ownership are highly debatable. No one can say with any certainty whether it increases violence or decreases crime. Don Kates speculates that magically reducing the approximately 200 million firearms in circulation to five million would have virtually no reductive effect on the crime rate: according to a 1983 National Institute of Justice-funded study by James D. Wright, Peter H. Rossi, and Kathleen Daly, about one percent of privately owned firearms are involved in criminal activity, suggesting that eliminating 99 percent of the nation's guns would not ameliorate crime. Or would it?
Philip Cook, an economist at Duke University and a leading researcher on gun violence, considers Kates's speculation about the uselessness of reducing the number of guns "patently absurd."We can't predict which guns will be used in crimes, he says, even if a relatively small number are used feloniously overall. Reducing the availability of guns would raise their price and therefore reduce their accessibility, to adult felons as well as juveniles. And even if a drastic reduction in the number of guns wouldn't necessarily decrease crime, it would decrease fatalities. Guns are particularly lethal, Cook has stressed: the "fraction of serious gun assaults that result in the victim's death is much higher than that of assaults with other weapons." Since not all gun homicides reflect a clearly formulated intent to kill, Cook reasons, access to guns can increase the lethality of assaults. A decrease in the use of guns, however, might lead to an increase in nonfatal injuries. Robberies committed with guns tend to involve less violence than other robberies because the victims are less likely to resist. (Cook speculates that victims who do resist robbers armed with guns are more likely to be killed.)

Debates about gun ownership and gun control are driven more by values and ideology than by pragmatism--and hardly at all by the existing empirical research, which is complex and inconclusive. Wright, Rossi, and Daly reported that there is not even any "suggestive evidence" showing that "gun ownership . . . as a whole is, per se, an important cause of criminal violence." The evidence that guns deter criminal violence is equally insubstantial, they added, as is evidence that additional gun controls would reduce crime. Many are already in place and rarely, if ever, enforced; or they make no sense. In 1983 Wright, Rossi, and Daly concluded that the "benefits of stricter gun controls . . . are at best uncertain, and at worst close to nil."

As for legal debates about the existence of constitutional rights, empirical data is irrelevant, or at best peripheral. But the paucity of proof that gun controls lessen crime is particularly galling to people who believe that they have a fundamental right to bear arms. In theory, at least, we restrict constitutional rights only when the costs of exercising them seem unbearably high. In fact we argue continually about what those costs are: Does violence in the media cause violence in real life? Did the release of the Pentagon Papers endanger the national security? Does hate speech constitute discrimination? In the debate about firearms, however, we can't even agree on the principles that should govern restrictions on guns, because we can't agree about the right to own them.

How could we, given the importance of the competing values at stake--public safety and the right of self-defense--and the opacity of the constitutional text? The awkwardly drafted Second Amendment doesn't quite make itself clear: "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." Is the reference to a militia a limitation on the right to bear arms or merely an explanation of an armed citizenry's role in a government by consent? There is little dispute that one purpose of the Second Amendment was to ensure that the people would be able to resist a central government should it ever devolve into despotism. But there is little agreement about what that capacity for resistance was meant to entail--armed citizens acting under the auspices of state militias or armed citizens able to organize and act on their own. And there is virtually no consensus about the constitutional right to own a gun in the interests of individual self-defense against crime, rather than communal defense against tyranny. Is defense of the state, and of the common good, the
raison d'Ítre of the Second Amendment or merely one use of it?

THE Supreme Court has never answered these fundamental questions about the constitutional uses of guns. It has paid scant attention to the Second Amendment, providing little guidance in the gun-control debate. Two frequently cited late-nineteenth-century cases relating to the Second Amendment were more about federalism than about the right to bear arms. Presser v. Illinois, decided in 1886, involved a challenge to a state law prohibiting private citizens from organizing their own military units and parades. The Court held that the Second Amendment was a limitation on federal, not state, power, reflecting the prevailing view (now discredited) that the Bill of Rights in general applied only to the federal government, not to the states. (A hundred years ago the Court did not apply the First Amendment to the states either.) Presser followed U.S. v. Cruikshank, which held that the federal government could not protect people from private infringement of their rights to assemble and bear arms. Cruikshank, decided in 1876, invalidated the federal convictions of participants in the lynching of two black men. This ruling, essentially concerned with limiting federal police power, is virtually irrelevant to Second Amendment debates today, although it has been cited to support the proposition that an oppressed minority has a compelling need (or a natural right) to bear arms in self-defense.

The most significant Supreme Court decision on the Second Amendment was
U.S. v. Miller (1939), a less-than-definitive holding now cited approvingly by both sides in the gun-control debate. Miller involved a prosecution under the 1934 National Firearms Act. Jack Miller and his accomplice had been convicted of transporting an unregistered shotgun of less than regulation length across state lines. In striking down their Second Amendment claim and upholding their conviction, the Court noted that no evidence had been presented that a shotgun was in fact a militia weapon, providing no factual basis for a Second Amendment claim. This ruling implies that the Second Amendment could protect the right to bear arms suitable for a militia.

Advocates of gun control or prohibition like the Miller case because it makes the right to bear arms dependent on at least the possibility of service in a militia. They cite the Court's declaration that the Second Amendment was obviously intended to "assure the continuation and render possible the effectiveness" of state militias; they place less emphasis on the Court's apparent willingness to permit private citizens to possess military weapons. Citing
Miller, a dealer at a gun show told me that the Second Amendment protects the ownership of only such devices as machine guns, Stingers, and grenade throwers. But advocates of gun ownership don't generally emphasize this awkward implication of U.S. v. Miller any more than their opponents do: it could lead to prohibitions on handguns. They like the Miller decision because it delves into the history of the Second Amendment and stresses that for the framers, the militia "comprised all males physically capable of acting in concert for the common defense."

This view of the militia as an inchoate citizens' army, not a standing body of professionals, is central to the claim that the Second Amendment protects the rights of individual civilians, not simply the right of states to organize and arm militias. And, in fact, fear and loathing of standing armies did underlie the Second Amendment, which was at least partly intended to ensure that states would be able to call up citizens in defense against a tyrannical central government. (Like the Bill of Rights in general, the Second Amendment was partly a response to concerns about federal abuses of power.) James Madison, the author of the Second Amendment, invoked in
The Federalist Papers the potential force of a citizen militia as a guarantee against a federal military coup.
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government: still it would not be going too far to say that the State governments with the people on their side would be able to repel the danger. . . . To [the regular army] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affection and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.
This passage is enthusiastically cited by advocates of the right to bear arms, because it supports their notion of the militia as the body of people, privately armed; but it's also cited by their opponents, because it suggests that the militia is activated and "conducted" by the states, and it stresses that citizens are "attached" to their local governments. The militia envisioned by Madison is not simply a "collection of unorganized, privately armed citizens," Dennis Henigan, a handgun-control advocate, has argued.

That Madison's reflections on the militia and the Supreme Court's holding in
U.S. v. Miller can be cited with some accuracy by both sides in the debate testifies to the hybrid nature of Second Amendment rights. The Second Amendment presumes (as did the framers) that private citizens will possess private arms; Madison referred offhandedly to "the advantage of being armed, which the Americans possess." But Madison also implied that the right to bear arms is based in the obligation of citizens to band together as a militia to defend the common good, as opposed to the prerogative of citizens to take up arms individually in pursuit of self-interest and happiness.

THE tension at the heart of the Second Amendment, which makes it so difficult to construe, is the tension between republicanism and liberal individualism. (To put it very simply, republicanism calls for the subordination of individual interests to the public good; liberalism focuses on protecting individuals against popular conceptions of the good.) A growing body of scholarly literature on the Second Amendment locates the right to bear arms in republican theories of governance. In a 1989 article in the Yale Law Journal that helped animate the Second Amendment debate, the University of Texas law professor Sanford Levinson argued that the Second Amendment confers an individual right to bear arms so that, in the republican tradition, armed citizens might rise up against an oppressive state. Wendy Brown, a professor of women's studies at the University of California at Santa Cruz, and David C. Williams, a law professor at Cornell University, have questioned the validity of a republican right to bear arms in a society that lacks the republican virtue of being willing to put communal interests first. Pro-gun activists don't generally acknowledge the challenge posed by republicanism to the individualist culture that many gun owners inhabit. They embrace republican justifications for gun ownership, stressing the use of arms in defending the community, at the same time that they stress the importance of guns in protecting individual autonomy.

Advocates of the right to bear arms often insist that the Second Amendment is rooted in both collective and individual rights of self-defense--against political oppression and crime--without recognizing how those rights conflict. The republican right to resist oppression is the right of the majority, or the people, not the right of a small religious cult in Waco, Texas, or of a few survivalist tax protesters in Idaho. The members of these groups have individual rights against the government, state and federal. (Both the
American Civil Liberties Union and the NRA protested the government's actions in Waco and its attack on the survivalist Randy Weaver and his family.) But refuseniks and refugees from society are not republicans. They do not constitute the citizen militia envisioned by the framers, any more than they stand for the American community; indeed, they stand against it--withdrawing from the body politic, asserting their rights to alienation and anomie or membership in exclusionary alternative communities of their own. Republicanism can't logically be invoked in the service of libertarianism. It elevates civic virtue over individualism, consensus over dissent.

Nor can social-contract theory be readily invoked in support of a right to arm yourself in a war against street crime, despite the claims of some gun-ownership advocates. The right or power to engage in punishment or retribution is precisely what is given up when you enter an ordered civil society. The loss of self-help remedies is the price of the social contract. "God hath certainly appointed Government to restrain the partiality and violence of Men,"
John Locke wrote. A person may always defend his or her life when threatened, but only when there is no chance to appeal to the law. If a man points his sword at me and demands my purse, Locke explained, I may kill him. But if he steals my purse by stealth and then raises a sword to defend it, I may not use force to get it back. "My Life not being in danger, I may have the benefit of appealing to the Law, and have Reparation for my 100 l. that way."

Locke was drawing a line between self-defense and vigilantism which many gun owners would no doubt respect. Others would point to the inability of the criminal-justice system to avenge crimes and provide reparation to victims, and thus they would assert a right to engage in self-help. Social-contract theory, however, might suggest that if the government is no longer able to provide order, or justice, the remedy is not vigilantism but revolution; the utter failure of law enforcement is a fundamental breach of trust. And, in fact, there are large pockets of disaffected citizens who do not trust the government to protect them or to provide impartial justice, and who might be persuaded to rise up against it, as evidenced by the disorder that followed the 1992 acquittal of police officers who assaulted Rodney King. Was Los Angeles the scene of a riot or of an uprising?

Injustice, and the sense of oppression it spawns, are often matters of perspective--particularly today, when claims of political victimization abound and there is little consensus on the demands of public welfare. We use the term "oppression" promiscuously, to describe any instance of discrimination. In this climate of grievance and hyperbole, many acts of violence are politicized. How do we decide whether an insurrection is just? Don Kates observes that the Second Amendment doesn't exactly confer the right to resist. He says, "It gives you a right to win."

The prospect of armed resistance, however, is probably irrelevant to much public support for gun ownership, which reflects a fear of crime more than a fear or loathing of government. People don't buy guns in order to overthrow or even to thwart the government; in the belief that the police can't protect them, people buy guns to protect themselves and their families. Recognizing this, the NRA appeals to fear of crime, particularly crime against women. ("Choose to refuse to be a victim," NRA ads proclaim, showing a woman and her daughter alone in a desolate parking lot at night.) And it has countered demands for tougher gun controls not with radical individualist appeals for insurrection but with statist appeals for tougher anti-crime laws, notably stringent mandatory-minimum sentences and parole reform. There is considerable precedent for the NRA's appeal to state authority: founded after the Civil War, with the mission of teaching soldiers to shoot straight, in its early years the NRA was closely tied to the military and dependent on government largesse; until recently it drew considerable moral support from the police. Today, however, statist anti-crime campaigns are mainly matters of politics for the NRA and for gun advocates in general; laws mandating tough sentences for the criminal use of firearms defuse demands for firearm controls. Personal liberty--meaning the liberty to own guns and use them against the government if necessary--is these people's passion.

Gun advocates are apt to be extravagantly libertarian when the right to own guns is at stake. At heart many are insurrectionists--at least, they need to feel prepared. Nothing arouses their anger more, I've found, than challenges to the belief that private gun ownership is an essential check on political oppression.

DURING the two-day seminar held by Academics for the Second Amendment, we argue equanimously about nearly everything--crime control, constitutional rights, and the fairness and feasibility of gun controls--until I question whether, 200 years after the Revolution, citizens armed with rifles and handguns can effectively resist the federal government. I ask, If Nixon had staged a military coup in 1974--assuming he had military support--instead of resigning the presidency, could the NRA and the nation's unaffiliated gun owners have stopped him? For the first time in two days Don Kates flares up in anger, and the room is incandescent.

"Give me one example from history of a successful government oppression of an armed populace," he demands. The FBI raid on David Koresh's compound in Waco, Texas, doesn't count, he says, because Koresh's group was a small, isolated minority. The Civil War doesn't count either. (I can't remember why.) Neither do uprisings in Malaysia and the Philippines.

People like me think it is possible to oppose the government only with nuclear weapons, Kates rages, because we're stupid; we don't understand military strategy and the effectiveness of guerrilla warfare, and we underestimate the hesitancy of troops to engage their fellow citizens in armed conflict. Millions of Americans armed only with pistols and long guns could turn a bloodless coup into a prolonged civil war.

Perhaps. I am almost persuaded that Kates might have a point, until he brings up the Holocaust.

Gun advocates sometimes point out that the Holocaust was preceded by gun-control laws that disarmed the Jews and made it easy to round them up. (In a 1994 article in
Guns and Ammo, Jay Simkin, the president of Jews for the Preservation of Firearms Ownership, argued that gun control causes genocide. Simkin wrote that today "genocides can be prevented if civilians worldwide own military-type rifles and plenty of ammunition.") Kates doesn't go nearly this far, but he does point out that genocides are difficult to predict. At the turn of the century, he says, I would not have predicted the Holocaust, and today I can't predict what holocausts may occur in the next fifteen or fifty years. I give up. "If millions are slaughtered in the next fifty years because of gun-control laws," I declare, "let their deaths be on my head."

"It's very interesting that you say that," Kates concludes, a bit triumphantly.

Kates apologizes later for his outburst, and in a subsequent phone conversation he acknowledges that "the Holocaust was not an event where guns would have mattered; the force was overwhelming." But he adds that guns might have mattered to individual Jews who could have saved themselves had they been armed, even if the Jewish community couldn't have saved itself collectively. And guns might matter to a Croatian woman who shoots a Serbian soldier breaking into her house, he suggests; if there were a Second Amendment in Bosnia, it would protect her.

Zealots in the pro-gun camp (Kates is not among them) seem to identify with the woman defending her home to the extent that they fear attack by the federal government. "Using a national epidemic of crime and violence as their justification, media pundits and collectivist politicians are aggressively campaigning to disarm private citizens and strengthen federal law enforcement powers," proclaims a special edition of
The New American, a magazine on sale at gun shows. After gun control, the editors suggest, the greatest threat to individual liberty is the Clinton plan for providing local police departments with federal assistance. "Is it possible that some of those who are advocating a disarmed populace and a centralized police system have totalitarian designs in mind? It is worth noting that this is exactly what happened in many countries during this century."

This can be dismissed as ravings on the fringe, but it captures in crazed form the hostility toward a powerful central government which inspired the adoption of the Second Amendment right to bear arms 200 years ago and fuels support for it today. Advocates of First Amendment rights, who believe firmly that free speech is both a moral imperative and an instrument of democratic governance, should understand the passion of Second Amendment claims.

They should be sympathetic as well to the more dispassionate constitutional arguments of gun owners. Civil libertarians who believe that the Bill of Rights in general protects individuals have a hard time explaining why the Second Amendment protects only groups. They have a hard time reconciling their opposition to prohibitions of problematic behavior, such as drug abuse, with their support for the prohibition of guns. (Liberals tend to demonize guns and gun owners the way conservatives tend to demonize drugs and pornography and the people who use them.) In asserting that the Second Amendment provides no individual right to bear arms or that the right provided is anachronistic and not worth its cost, civil libertarians place themselves in the awkward position of denying the existence of a constitutional right because they don't value its exercise.

The civil-libertarian principles at issue in the gun debate are made clear by the arguments of First Amendment and Second Amendment advocates, which are strikingly similar--as are the arguments their opponents use. Pornography rapes, some feminists say. Words oppress, according to advocates of censoring hate speech. "Words Kill," declared a Planned Parenthood ad following the abortion-clinic shootings in Brookline, Massachusetts, last year. And all you can say in response is "Words don't kill people; people kill people." To an anti-libertarian, the literature sold at gun shows may seem as dangerous as the guns; at a recent gun show I bought Incendiaries, an army manual on unconventional warfare; Exotic Weapons: An Access Book; Gunrunning for Fun and Profit; and Vigilante Handbook, which tells me how to harass, torture, and assassinate people. Should any of this material be censored? If it were, it would be sold on the black market; and the remedy for bad speech is good speech, First Amendment devotees point out. According to Second Amendment supporters, gun-control laws affect only law-abiding gun owners, and the best defense against armed criminals is armed victims; the remedy for the bad use of guns in violent crime is the good use of guns in self-defense.

Of course, guns do seem a bit more dangerous than books, and apart from a few anti-pornography feminists, most of us would rather be accosted by a man with a video than a man with a gun. But none of our constitutional rights are absolute. Recognizing that the Second Amendment confers an individual right to bear arms would not immunize guns from regulation; it would require that the government establish a necessity, not just a desire, to regulate. The majority of gun owners, Don Kates suggests, would be amenable to gun controls, such as waiting periods and even licensing and training requirements, if they didn't perceive them as preludes to prohibition. The irony of the Second Amendment debate is that acknowledging an individual right to bear arms might facilitate gun control more than denying it ever could.

But it will not facilitate civic engagement or the community that Americans are exhorted to seek. The civil-libertarian defense of Second Amendment rights is not a republican one. It does not derive the individual right to bear arms from republican notions of the militia; instead it relies on traditional liberal views of personal autonomy. It is a communitarian nightmare. If the war against crime has replaced the Cold War in popular culture, a private storehouse of guns has replaced the fallout shelter in the psyche of Americans who feel besieged. Increasingly barricaded, mistrustful of their neighbors, they've sacrificed virtue to fear.


Copyright © 1996 by The Atlantic Monthly Company. All rights reserved.
The Atlantic Monthly; March 1996; Second Thoughts on the Second Amendment; Volume 277, No. 3; pages 32-45.

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