GUNS POLITICS AND REASON
Lance K. Stell
A significant portion of the American intellectual
community is heir to a conventional wisdom about guns. For them, this wisdom paints
a chilling picture by the numbers. It takes shape something like this. Private
American citizens own approximately 120,000,000 guns (give or take twenty
million). Fifty-five to sixty million of these are handguns. Fifty percent of
all American households have one or more guns. Approximately ten thousand
handgun homicides are committed each year. I add to this number, tens of
thousands of woundings plus more than two thousand accidental deaths plus several
thousand gun-suicides. A national scandal? What's the answer? In a heartbeat,
the conventional wisdom screams its answer: GUN CONTROL! Pollsters Harris and Gallup
say a substantial majority of Americans want it. Liberals like Ted Kennedy want
it. Conservatives like George Will want it. Shouldn't we have it? Why can't we
get it?
But wait. What is the scandal? That private citizens own so
many guns? That approximately 22,000 homicides occurred last year? That
slightly less than half of these were committed with guns? All of the above? The
first because of the third? What does "gun control" mean? Is
requiring a permit to purchase firearms gun control? Is registering all gun
owners gun control? Is gun safety education gun control? Is prohibiting the discharge
of firearms in dense populated areas gun control? Is prohibiting private
ownership of handguns gun control? Is prohibiting domestic manufacture and
importation of all handguns gun control? Is requiring gun-wielding criminals to
serve minimum prison terms gun control? Groups as hostile one another as the National
Coalition to Ban Handguns and NRA each support more than one of these "control"
measures. So, if someone proclaims support for gun control, or "more"
or "stricter" gun control, what does he mean? Whose side can claim
his support?
At present, there are roughly 20,000 laws concerning guns
on the books. What effects have these laws had on violent crime rates? If we
need more gun control laws, precisely how should such statutes be worded? How
would they be enforced? What trade-offs in liberty and privacy would have to be
made to secure the desired benefits if, say, a comprehensive handgun ban became
law and were vigorously enforced? Is there reason to suppose that banning
handguns would be more successful than our first go-round at a "noble
experiment?" In the last decade, the private stock of guns has increased
sharply. What relation does this fact have to violent crimes rates over the
same period? Is there "a domestic arms race?" If so, who is racing
whom? Is it the law abiding citizen versus the criminal? The criminal versus the
police? Law-abiding citizen versus law-abiding citizens? What motivates law
abiding citizens to acquire firearms? What considerations operate in a
criminal's decision whether to use a firearm in a planned crime?
Reasonable questions? Important questions? Not to people
who think in terms of foregone conclusions. The books under review are not for
them. These books ought to be read by persons who think that controversial
public policy questions should be informed by well-reasoned argument, good
evidence and historical understanding. Would anyone reject this principle? Surprisingly,
many do, or at least their conduct suggests that they do. For far too many,
grip on this principle slips when the topic is guns. Determining a person's
position on "gun control" is a social litmus test; the enlightened
are thereby distinguished from the benighted.
When discussion turns to guns, otherwise rational people
who ordinarily sort out distinguishable issues and analyze them separately, proceed
to jumble everything together. For example, consider the following set of controversies,
each provocative in its own way, we have the criminological theory that most violent
criminals behave like rationally self-interested predators. Because they weigh
perceived benefits against perceived costs the theory implies that these persons
may be deterred from objectionable activities by increasing the perceived risks
above some threshold. If we assume that a rational predator prefers a comparatively
helpless victim (all else equal), the theory suggests that we shall better deter
violent crime by publicly encouraging law-abiding citizens to own and become proficient
in the use of weapons.
We also have a theory which says that many violent
criminals are just like the rest of us except that their motivational structure
has been transformed by a "weapon sickness" which
"infected," them when they acquired a gun. This theory suggests that gun
ownership acts on a person like a slow virus. Having contracted the disease,
there waits only the catalyst of the right provocative moment; our otherwise
ordinary citizen becomes an agent of death. It seems to follow that in order to
make serious reductions in violent crime, we must eliminate the deadly virus which
infects its death dealing carriers (pun intended). Ban guns.
Next consider the controversy about self defense. We have
the view that each competent adult bears the primary responsibility for
protecting himself from deadly threats to his life and has a right to use any
reasonable means to do so.
We also have the view that the state, through its police,
owes a duty to each citizen to bear the defensive burden. As custodians of
public security, only designated officials have a right to possess guns. Only
designated officials have a right to use deadly force to repel aggressive
threats to lives of the law-abiding although private citizens may be forgiven
for resorting to self-help in extremis.
Then there are the moral/cultural/recreational
issues associated with hunting, target shooting and gun collecting. We have
views which hold that hunting is not an inherently wicked activity, that target
shooting is a legitimate sport, and that gun collecting is no more suspect than
collecting vintage automobiles.
We also have views which hold that hunters are morally depraved
enemies of the environment who violate the rights of their prey, that target
shooting is sublimated aggression, and that gun collectors suffer from a
castration complex. They assemble their collections out of sexual frustration.
Finally, there are the Second Amendment issues. A sizable
majority of Americans believe that the Second Amendment-confers an individual
right to keep and bear arms. Yet many legal scholars disagree with them. These
scholars claim that the Second Amendment confers a right upon the states to
organize militias. The supposed right to keep and bear arms is totally restricted
to and subordinate to the state interest in securing the common defense.
Any thoughtful person must agree that these issues are very
complicated. No doubt a thoughtful person could think of even more issues and
still more complications, could think of putting them in more or less
provocative ways. Yet, debates about guns are sharply polarized. People are
categorized as either "pro-gun" or "anti-gun," labels rich
in emotional connotations but poor in cognitive value.
Emotional invective and over-simplification lead to implausible
characterizations of both sides. Good liberals who get angry about ethnic or
racial stereotypes sweepingly characterize those who keep guns, no matter for
what reasons, as having "I.Q. .38." Others, instead of insulting the
intelligence of gun owners, impugn their grasp of sexual reality. Thus Arthur
Schlesinger, Jr., suspects "that men doubtful of their own virility cling to
the gun as a symbolic phallus and unconsciously fear gun control as the
equivalent of castration."2 One cannot help but wonder what
might cause a distinguished man of letters who ordinarily writes with such care
to paint in unflattering colors with such a broad brush, Other writers
creatively apply a corollary of this pseudo - Freudian theory to women. In her account
of the Jean Harris murder trial, Oiana Trilling asserts "There are women
for whom the idea of masculinity and fierceness are not to be disentangled from
one another." When the headmistress acquired the gun she used to kill the
Writers Like Schlesinger and Trilling neglect to take seriously
the implications of their theory: If the phallic theory of handgun ownership
were correct, we would not only have a simple but disparaging explanation for the
acquisitive behavior of the nation's gun owners, we should also predict
widespread violent resistance bordering on social revolution were the prohibitionist
legislation which they typically favor to pass. The phallic theory predicts
that male gun owners would be as violently resistant to enforcement of such
legislations as they would be to mandatory castration. The theory's phallus-envy
corollary predicts that women gun owners would cleave mightily to the
cold-steel substitutes for their biological deprivation. Handgun prohibition
threatens unsublimated frustration for these women.
Although the phallic theory has a ready explanation for
the gun-banning preferences of its adherents too, they neglect to interpret their
own preferences in the context of the demeaning social theory they apply to others.
They eschew campaigning under the banner "Phallus Envy League."
Is the phallic theory serious social psychology? Probably
not. More likely, the so-called phallic theory is just "respectable bigotry,"4
another ad hominem in what one writer has called "The Great American Gun
War."5
Paradoxically, gun prohibitionists who caricature gun
owners so unkindly follow a course which makes it less likely that the measures
they favor will become law. Such calumny convinces
On the side of gun owners, people who should also know
better characterize anyone who supports any increased restrictions on firearms
as a "gun grabber" a closet totalitarian, a subverter of an
enumerated Constitutional right, a mortal enemy of all basic American values.
Calumny thus exists on both sides. Both pour hatred into
the river of spite which separates them. But there is an important asymmetry.
Gun owners who revile their political opponents wish, in the last analysis, to
be left alone. Prohibitionists, on the other hand, need voluntary compliance
from gun owners if enforcement costs for their favored laws are not to be
prohibitive. Gun owners, having been caricatured as atavistic, violence-loving,
borderline sexual perverts, are not likely to cooperate voluntarily.
Seeking light rather than heat, what would a rational
person think? Surely a rational person would suspect that the motivations people
have for possessing guns is an empirical question which, when investigated
carefully, would likely reveal the same complexity which underlies most human
action. No person acting upon rational principles would accept derogatory
arm-chair psychologizing as a substitute for empirical investigation. On the
other hand, people who are "pro-gun," for whatever reasons, must
admit that guns are dangerous machines which kill and wound tens of thousands
of Americans each year. Reducing the number should be an aim supported by all
reasonable people. Whether changes in social policy can contribute toward this
end at acceptable cost should be an open question.
Enlightenment is also wanting on the question how the
Second Amendment to our Constitution should be understood. How did the Framers
understand those words? Is it true that the mention of "arms" in the
document which shapes our legal and political institutions reveals only the
understandable, but transitory importance which firearms had during our frontier
days? What weight should be given to the understandings of the Framers when
contemporary problems they could not have foreseen, beg for solutions to which
they, but not all of us, might have principled objections? How tightly should
their understandings, their intentions, bind us today?
If rational discussion of the link between firearms and
violence is possible if people can replace slogans with informed judgment, if
people are open to challenging the received wisdom that the Second Amendment
articulates a "collective right" only, then the books under review
will prove of considerable value; not necessarily because they decisively dispose
of important questions but because they bid to raise the level of a debate
which has lacked balance and reason for too long.
The Gun Myth
The conventional wisdom about guns is transmitted as a
myth. Rational discussion about gun policy requires that the myth be articulated
and challenged. It is a myth in the sense that: (1) it expresses the social
consciousness of a group or social class, shaping group members' perceptions
things or forces enter into "real" (as opposed to apparent) causal
relations; (2) it is shielded by its proponents from refutation; evidence
contrary to the myth, rather than rationally assessed, is either ignored or the
motives of those who present it are disparaged; (3) to adherents, those who
challenge the myth are outsiders, enemies or reactionaries; (4) its component
claims are either demonstrably false, misleading half-truths, or are
unsubstantiated by good evidence.
We can characterize myths in other ways. However, these
four criteria, individually necessary and jointly sufficient, will serve well
enough. According to the gun myth, the American involvement with firearms began
as a marriage of convenience and necessity, only to be transformed into a
perverse romance which now spawns violence and domestic disorder. As the story runs,
firearms were a necessary part of the frontier experience. They provided needed
protection from wild beasts, from an occasionally hostile, native population,
were useful in securing sustenance.
However, the society became more civilized; the necessity
of self-help withered. No longer needed tools, guns became symbols in a
romantic fantasy with
Human decency demands that the romance with guns end. A
substantial majority of Americans now echo that demand. Alas, their humane desires
are frustrated by the skillful, if perverse, machinations of a small but
powerful minority the "gun lobby." This group shamelessly opposes the
very sort of legislation which accounts for the low rates of personal violence in
other modern democracies. The gun lobby deflects attention away from the
brutality which it perpetuates by arguing fallaciously that the Constitution secures
an individual right to firearms ownership - a position which the courts have
rejected and with which no serious legal scholar agrees. The success of this small
minority confers upon the
Furthermore, modern social science has shown that there is
a casual connection between the comparatively high rate of gun ownership in the
United States and its violent crime rate (which notoriously exceeds that of,
say, England or Japan); that guns function like disease causing agents,
transforming their otherwise mentally healthy possessors into violence-prone aggressors
(the mechanism which explains the correlation; that a vigorously enforced
handgun ban would have a favorable effect on violent death rates. Important
questions can be raised about the "Gun Myth" as I have summarized it.
Is there any sense in which it describes the position of anybody? If it does,
is it sufficiently pervasive to count as the "conventional wisdom" on
guns? When did the myth come into being? How and by whom is it perpetuated?
A chapter in Firearms
and Violence written by William Tonso, addresses these questions. Tonso
shows that support among social scientists, other intellectuals and the media
for the set of beliefs and attitudes which I have called the gun myth is very
widespread. "Since the latest push for controls began in the early 1960's,
articles on the subject in such news and general interest magazines as Life,
Time, Newsweek, The Saturday Evening Post, Reader's Digest, Harper's, Saturday
Review. The Nation, and The New Republic have been almost unanimous in the
strong support of gun control . . . The national television networks have also
been almost unanimous in the support of controls through various documentaries
on the subject as well as through such television favorites as "Laugh
In," "All in the Family," "Hawaii Five-O." The leading
urban newspapers have all editorialized in favor of controls, the Washington Post
once doing so for seventy-seven straight days, . . ."7 But now
another question arises. Why not infer from the widespread support the so-called
"gun myth" enjoys that it is not a myth at all. Perhaps the
impressive individuals who share these beliefs provides some inductive support
for thinking that the beliefs are true, or if these beliefs are false or
misleading, (which remains to be seen), perhaps that's all there is to it. Many
false beliefs which have enjoyed widespread support are not therefore
"myths." Evidence must be given that these beliefs, even if false, function
as myth.
What evidence is there? Tonso offers several reasons for
thinking that the conventional wisdom on guns is myth rather than real wisdom. First,
he points out that it is not uncommon for non-scholarly, anti-gun polemics such
as The Right to Bear Arms, by irate citizen Carl Bakal, and Saturday Night Special,
by investigative reporter Robert Sherrill, to be cited in social science
textbook analyses of the gun issue without any mention of the political
interests of such writers. Second, social scientists who are occupationally
critical of opinion polls and the inferences drawn from them commonly accept
polls about gun issues at face value even though there is good reason not to do
so. Third, those few social scientists who examine the background interests and
historical factors which place the activities of the anti-control forces in
context fail to deal similarly with the pro-control forces. As Wright, Rossi
and Daly discovered when they undertook their comprehensive review of the
scholarly literature on the subject.
One would be ill advised to point to the academic literature on
weapons and crime as an example of the scientific objectivity that is discussed
in introductory methods textbooks. Both "guns" and "crime" are
emotionally laden symbols that evoke strongly held and not always rational
feelings, anxieties, and concerns, and researchers are not exempt from such
evocations . . . Thus many (perhaps all) researchers in this area bring with
them to the research task a set of personal beliefs and political ideologies
which if they do not destroy outright the credibility of the research, at least
sometimes interfere with sound research judgments.
Tonso argues that there is strong social
class aspect to the Great American Gun War which pits "cosmopolitan
The American intellectual elite includes not only the nation's
"top" writers, journalists, and other such literary folk, but its
"top" educators, scholars, and scientists. Social and otherwise, as
well. Cosmopolitan
Is Tonso's argument an ad hominem too?
Is it anything more than an attempt to undermine the conventional wisdom on
guns by showing that those who perpetuate it tend to represent social class values
characteristic of "cosmopolitan
History
As I have recounted it, the gun myth
begins with an historical claim, Such historical claims are important because they
purport to give perspective on the present by shaping our beliefs and attitudes
towards it. To have a non-distorted perspective on the present presupposes
accurate history. Accurate American political history sheds light upon the
meaning of the Constitution by illuminating what its words meant to those who wrote
them. The stakes are high. Winning the struggle to articulate the canonical version
of American's historical involvement with guns has implications
for how the Second Amendment should be interpreted and applied.
The historical claim in the Gun Myth
serves in support of an argument that since the sole justification for widespread
gun ownership was frontier necessity, its ground was limited to the conditions which
made it necessary. With the disappearance of frontier conditions, the
justification for widespread, private arms ownership evaporated. Thus Senator
Edward Kennedy argues that "our complex society requires a rethinking of the
proper role of firearms in modern
The historical claim in the Gun Myth
asserts that the American relationship with guns began with our frontier experience;
back then, guns were items of convenience, if not necessity. This claim is not
so much false history as it is history with selective amnesia.11 Understanding
America's relationship with guns requires that our historical investigation probe
a more distant past; we must probe the experiences, the republican traditions of
those statesmen who shaped our institutional design.
Toward this end, Stephen Halbrook
writes what amounts to a detailed legal brief which aims to restore these lost memories.
He proposes to establish unambiguously that the Second Amendment secures an
individual right to keep and bear arms. Thus Halbrook argues, ". . . an
understanding of the authoritarian absolutism of Plato, Bodin, Hobbes, and
Filmer is as necessary as an understanding of classical libertarian
republicanism in order to know what America's founders rejected as well as what
they accepted. Those who drafted and supported the Bill of Rights followed the libertarian
tradition of Aristotle, Cicero, and Sidney, and they rejected the
authoritarian, if not totalitarian, tradition of Plato, Caesar, and Filmer.
These two basic approaches in political philosophy have consistently enunciated
opposing approaches to the question of people and arms, with the authoritarians
rejecting the idea of an armed populace in favor of a helpless and obedient
populace and the libertarian republicans accepting the armed populace and
limiting the government by the consent of that armed populace." (p. 8).
The issue of what business, if any,
the ordinary citizen has with arms antedates the American frontier experience by
two thousand years. Aristotle and Plato disagreed about it. Plato thought that
private ownership of arms should not be permitted because armed citizens would
be in a position to protect their own interests against the interests of despotism.
Aristotle agreed that an armed citizenry was an obstacle to despotism but
favored it for that reason. In fact, Aristotle thought that bearing arms was a
mark of those who possessed full membership in the political community.12
"The whole constitutional setup is intended to be neither democracy nor
oligarchy but mid-way between the two-what is sometimes called 'polity,' the
members of which are those who bear arms."13 Aristotle objected
to giving one social class a monopoly on arms bearing, "Hippodamus planned
a city with a population of ten thousand, divided into three parts, one of
skilled workers, one of agriculturalists, and a third to bear arms and secure defense,
. . .[which is objectionable because] . . . the farmers have no arms, the workers
have neither land nor arms; this makes them virtually the servants of those who
do possess arms. In these circumstances the equal sharing of offices and
honours becomes an impossibility."14
Aristotle thought that a citizenry which
possessed its own arms deterred foreign invasion, deterred domestic tyranny,
and could wage effective personal defense against criminal threats to life.
This latter idea conveys the thought that the individual adult citizen bears
primary responsibility for defending his life against immediate deadly threats to
it; an idea transmitted through the common law and embedded in our legal
system. Theorists of republican
And indeed, gentlemen, there exists a law. not written down
anywhere but inborn in our hearts; a law which comes to us not by training or
custom or reading but by derivation and absorption and adoption from nature itself;
. . . I refer to the law which lays it down that, if our lives are endangered
by plots or violence or armed robbers or enemies, any and every method of
protecting ourselves is morally right. When weapons reduce them to silence, the
laws no longer expect one to await their pronouncements. For people who decide
to wait for these will have to wait for justice, too--and meanwhile they must
suffer injustice first. Indeed, even the wisdom of the law itself by a sort of tacit
implication, permits self-defense, because it does not actually forbid men to
kill; what it does, instead, is to forbid the bearing of a weapon with the
intention to kill. When, therefore, an inquiry passes beyond the mere question
of the weapon and starts to consider the motive. A man who has used arms in
self-defense is not regarded as having carried them with a homicidal aim.15
In England, popular ownership of arms
was never questioned until Charles II created a "new militia" (in
effect, the beginnings of a standing army) and in 1670, got Parliament to pass a
law authorizing confiscation of most privately owned weapons. James II
increased the size of the standing army and continued to disarm commoners,
especially Protestants. The English Bill of Rights must be understood against this
background. Thus, Halbrook notes that, of the l3 articles in the English Bill of
Rights, 11 imposed duties and disabilities upon the crown while only two
secured specific liberties to the subject: the right to address petitions to
the king; the right of Protestants to carry arms for their own defense.
This historical excursion is apposite
because the statesman of our revolutionary period knew about the long-standing debate
over popular ownership of arms; they were self-conscious heirs to the
republican position in it. They were familiar with oppression by standing armies
and attempts by the Crown to disarm the people. They also regarded themselves
as perpetuators of the Glorious Revolution, as bearers of those rights secured
to all Englishmen by the Bill of Rights. Thus Garry Wilis reminds us that,
"The question of basic rights, obscure to their descendants, seemed clear to
men, who felt themselves the heirs of the Revolution, of the glory derived from
1688. Americans of the I770s felt they were approaching a 'centennial' of their
own, reliving memories of the English Bill of Rights."16
To men like Thomas Jefferson, popular
ownership of arms was a distinctive republican (and personal) virtue, Consider Thomas
Jefferson's advice to his nephew, Peter Carr:
A strong body makes the mind strong. As to
the species of exercise, I advise the gun. While this gives a moderate exercise
to the body, it gives boldness, enterprise and independence to the mind. Games
played with the ball and others of that nature, are too violent for the body
and stamp no character on the mind. Let your gun, therefore, be the constant
companion of your walks. Never think of taking a book with you.17
Or as he writes to George Washington:
"One loves to possess arms."18 These sentiments express
another strand in republican thinking; arms possession and republican virtues
are causally linked. The paragon of civic virtue, the bulwark of republican
society, was the citizen warrior, an ideal first lionized by Machiavelli, but more
importantly, fully appropriated by the republican political tradition. Writing in
the 1770s, a libertarian writer much admired by American republican thinkers, James
Burgh, decried the decadence of English society. Having been
seduced by luxury and commerce, Englishmen had surrendered their arms.
No kingdom can be secured otherwise than by arming
the people. The possession of arms is the distinction between a freeman and a
slave, he, who has nothing, and who himself belongs to another, must be
defended by him, who property he is, and needs no arms. But he who thinks he is
his own master, and has what he can call his own, ought to have arms to defend himself,
and what he possesses, else he lives precariously, and at discretion."19
When armies are paid by tax
money, tax money will be collected by armies; the death of English liberty was
inevitable, or so thought Burgh. Clearly the Federalists did not intend this to
happen in
Needless to say,
A history which explains the American
experience with guns solely by reference to the old frontier is afflicted with selective
amnesia, a condition worse than total amnesia. Because they do not remember
anything, total amnesiacs cannot be deceived by their memories. Perhaps many Americans
would now reject those theories of republican virtue which enjoyed the allegiance
of the Framers. But if this done, it should be done informedly and not
ignorantly.
Halbrook has done a valuable service merely in
digging out an amazing collection of quotations from the Greeks onward, pro and
con, on the effects and desirability of an armed citizenry. Opponents of private
ownership of firearms may not like the authoritarian philosophical forbears of their
position, so they should be grateful to Halbrook for providing them the texts
and opportunity for arguing that the republican political philosophers whose
company they would rather keep were right to favor popular government but were
wrong to link popular ownership of arms to it.
Yet the historical chapters of
Halbrook's book while instructive deserve criticism because of their tendency
to view the historical record with tunnel vision. Halbrook tends to see the
complex struggle for political freedom as essentially a class struggle over popular
possession of arms. Halbrook is surely right to point out that there has been a
dearth of attention paid to historical debates which have seen so much riding
on whether the common people shall have arms. But the ideas of rule of law
(rather than of men), of due process, of jury trial by peers, of natural rights
to life, and liberty, of constitutionally limited government, and of the common
welfare are important elements in freedom's story too.
Similarly, in his determination to establish
that the founding fathers meant to constitutionally protect "the right of
the people to keep and bear Arms," Halbrook neglects to give any place to
the clause which precedes his main object of interest viz., the cause which reads
"A well regulated Militia, being necessary to the security of a free state
. . . What relation does this clause have to the right of the people to keep
and bear arms? Does it subordinate the right totally to the collective interest
in maintaining a
It is entirely reasonable to think
that the farmers had at least two related concerns in mind when the Second
Amendment was written. One having to do with the communitarian interest in
maintaining a
Joyce Malcolm, in her chapter
"The Right of the People to Keep and Bear Arms," argues persuasively
that these aims were not really distinct in the republican tradition with which
the Framers identified. In theory, the political ideal was the citizen warrior
who possessed his own arms and stood every ready to defend his state against
foreign aggression and to defend his community against felonious persons. In practice,
it was a longstanding tradition in
Although a reviewer should not
complain that an author did not write precisely the book the reviewer would
like to have read, it would have been good had Halbrook critically discussed
the idea that, in extremis, each adult person properly bears the burden of
defending his or her own life and may use any reasonable means to do so. This
idea provokes many of our contemporaries who think that the state through its
police bear this burden. To their dismay, courts have consistently held that there
is no individual right against the police to be rescued from violent attack. The
duty of the police is owed to the community as a whole. A citizen who is harmed
because the police fail to answer her pleas for rescue has no claim against her
public servants.20
Halbrook's book severely challenges
two major tenets of the gun myth, viz., that there is no historical basis for thinking
that the Second Amendment confers an individual right to keep and bear arms;
that the Supreme Court has never interpreted the Constitution in a manner congenial
to an individual rights interpretation. Halbrook meticulously analyzes the relevant
decided cases and persuasively argues that they are consistent with an
individual right interpretation of the Second Amendment. Why merely "consistent
with" rather than outright "affirming" such a right? For the simple
reason that the Supreme Court has never decided a case in which the specific
issue of an individual versus a collective right to arms was central "To
date, then, the Supreme Court has never held or even suggested that the Second Amendment
guarantees merely a "collective" right for members of the National
Guard to have governmentally owned arms while on duty . . . [on the contrary]
The Court's language clearly implies that it considers possession of a firearms
in the hand of a law-abiding citizen as a "fundamental" right."
Probably soon, the Court will find it necessary to rule whether the Second
Amendment guarantees an individual right to keep and bear arms and to what
extent the states may regulate this right consistent with the Fourteenth
Amendment, Halbrook's book is a powerful brief toward this end.
Together with Joyce Malcolm's chapter
"The Right of the People to Keep and Bear Arms," in Firearms and
Violence, Robert Shalhope's "The Ideological Origins of the Second
Amendment,"21 and Don Kates' "Handgun Prohibition and the
Original Meaning of the Second Amendment,"22 Halbrook's That Every
Man Be Armed is the beginning of wisdom for anyone who seeks genuine understanding
of the origins of the American relationship with guns. Perhaps that
relationship should be changed but debate about it should reflect an accurate
understanding of what that relationship was and how it came about.
Civil Libertarians too will find fascinating
material in Halbrook's book. Halbrook shows that firearms legislation adopted in
many southern states after the Civil War should be viewed as a piece with the
"Black Codes" both were motivated by a desire to deny blacks their
Constitutional rights. This historical argument has important bearing on interpretational
controversies over the Fourteenth Amendment, viz., whether it fully
incorporates the first eight amendments against the states. Halbrook adopts the
"full incorporation thesis" and argues that no one can seriously maintain
otherwise:
[R]ather than predicating the right to keep
and bear arms on the needs or existence of an organized militia, the framers of
the Fourteenth Amendment and of the civil rights acts of Reconstruction based
it on the right of the people individually to possess arms for protection against
any oppressive force: including racist or political violence by the militia
itself or by other state agents, such as sheriffs." (p. 153).
But, Halbrook's reading of the record notwithstanding,
others have seriously maintained that the "full incorporation thesis"
is false.23 The Supreme Court has never ruled on the
"incorporation controversy" as such and, given the sweep of the
thesis, likely will not do so. The Court may someday address the more limited
question whether the Fourteenth Amendment incorporates the Second. Should it
take occasion to do that, all of the justices would feel the persuasive power
of Halbrook's argument because they all subscribe to the principle that the Constitution
should be construed as those who framed the words intended. However, no justice
holds this as the sole principle of constitutional interpretation. All the
justices now on the Court, while subscribing to the "original meaning"
principle, supplement it with, and, depending upon the case, trade it off
against the requirements of at least one additional principle which might be called
the "contemporary circumstances and needs" principle. How these might
be balanced off against each other in particular cases notoriously provides the
occasion for much spilt ink.
More Guns, More Gun Violence
Good slogans are easy to remember.
That's part of what makes them good. Good slogans threaten to drive out good thinking
because they bid to take its place. Untangling casual relationships in society
is taxing work. Those who do it best know that careful investigation rarely
supports sweeping, easy-to-remember assertions. This is not happy news for
people who are anxious to undertake ambitious policy initiatives to eliminate
social evil. Often, good slogans are better suited to this interest than good
thinking. The relation between guns and violence is a case in point.
There is a tendency to think that
"More guns, more gun violence" expresses common sense. Consider the
following:
l. No guns, no gun violence.
2. More guns, more gun violence.
3. Fewer guns, less gun violence.
For a careless thinker, the second and
third may seem to follow logically from the obvious truth of the first. The careless
thinker should think again. The first expresses a tautology and is, therefore,
empirically empty. The second and third suggest a direct, causal, empirically
verifiable relationship between guns and violence. The second and third are logically
independent from the first, not corollaries of it. If the second and third
express truths, it is because of causal relations that exist in the world, not
because they follow logically from a tautology.
What empirical relation, if any, holds
between increases in firearms ownership and crime rates? If it were true that everybody
is violence-prone or that guns make people violent, then it would make sense to
think that more guns would lead to more violence. This is valid reasoning. The
conclusion, "more guns, more gun violence," follows if the premises
are true. But the premises are not obviously true. If not everyone is violence-prone
or if guns do not make people violent, in short if the violence prone
constitute an identifiable sub-population, and if the massive majority of gun
owners never commit a violent act, then marginal additions to the private stock
of guns forebodes evil just in case the armament of that violence-prone subpopulation
increases and nothing reduces incentives to criminal use.
According to the gun myth, the
violence-prone are not an identifiable sub-population. The person who becomes provoked,
seizes an all-too-available gun and shoots an acquaintance is indistinguishable
from the rest of us, The availability of a gun catalyzes with common anger transforming
an enraged citizen into an agent of death. Ordinary gun owning citizens are
only a provocation away from homicide.
But in fact, very few killings are
committed by persons who have no previous record of violence. Today's killer is
more often than not yesterday's assaulter and batterer. That this is not more generally
appreciated owes in some measure to media treatment of violence, For example,
in news coverage of the Texas Tower killer, Charles Whitman, the media made much
of the fact that as a youth, Whitman had been a choir boy and an Eagle Scout. They
neglected to similarly highlight that he had been raised in a violent home, had
repeatedly beaten his wife, and, when he was a Marine, had been courtmartialed for
fighting. Violence which suddenly grabs media attention not infrequently is
caused by individuals who have been violent in the past. Recent studies show
that most arrested killers have police records for previous violence.
Approximately 70% of homicide offenders have been previously arrested for violence
and approximately half of homicide offenders have been previously convicted.24
Media treatment of violence skews
popular assessments of its risks. A recent study showed that newspaper coverage
seldom reflects the comparative frequencies of causes of death. Although
diseases like diabetes, cancer, and heart disease kill approximately 1000 times
the number of persons as homicides, newspapers run three times as many stories
about homicide. This leads people to overestimate the role of violence as a
cause of death. For example, people incorrectly estimated that homicide takes more
lives annually than diabetes, stomach cancer, and stroke. Yet strokes alone
take 10 times as many lives as homicides.25
Another fact raises a difficulty for
the "more guns, more gun violence" tenet of the gun myth. The private
stock of guns has expanded considerably over the past decade but the number of
violent crimes has not increased with it. In fact, for some crimes, (e.g.
homicide) the rate has actually declined slightly.
How many guns do private citizens own?
Estimates vary widely. Some estimate the number at 160,000,000. Wright et, al.
estimate the number at 120,000,000 give or take 20,000,000. They used two
methods to arrive at the estimates. We have figures for domestic manufacture and
for importation. We have figures from national surveys containing a firearms
ownership question. Both methods, as Wright notes, are not very satisfactory. First,
we do not know the rate at which firearms are removed from use. Second, we must
be suspicious that the polling data are corrupted by an unwillingness of
respondents to admit to owning firearms. Because of these methodological problems,
Rossi admits that his estimate may be off by 20,000,000 or more. Nevertheless,
the estimates, for all their inaccuracy, show that the total number of weapons
in private hands has increased sharply over the past decade. Wright et. al.
estimate the increase at perhaps 40 million (although they acknowledge that
their estimate may be off by an order of magnitude).
But aren't the figures alarming all by
themselves even allowing for inaccuracy in the estimates? What could Americans
want with all those weapons? Why have they acquired so many more over the last
ten years? Are they so fearful of violent crime that they are arming themselves
to the teeth in preparation for a shoot out with their fellow citizens? With
their government?
Not a great deal is known about what
motivates people to acquire guns. Many theories are possible. Of greater
interest is use. What do people do with the guns they acquire? Of the uses to
which they put them, what is the rate of criminal use?
Wright et. al. investigate whether a domestic
arms race is under way and to what extent it is necessary to postulate motivation
of "fear and loathing" to explain the increase. The "fear and
loathing" hypothesis speculates that citizens have increased their gun
holdings from fear of violent crime and from loathing of those perceived as
threats. However, Wright et. al. conclude that when benign factors like population
increase, police acquisitions, increase in recreational use are taken into
account; there is nothing left for the "fear and loathing" hypothesis
to explain. They are quick to admit that this does not refute the hypothesis,
only that it is unnecessary to postulate it.
The Popular Demand for "More Gun Control"
For years, pollsters Gallup and Harris have
reported strong popular support for more legal restrictions on firearms, especially
handguns. For example, in 1938
An early attempt at an explanation was
provided by Hazel Erskine in 1972 in Public Opinion Quarterly. The "gun
lobby" (spearheaded by the NRA) was the obstacle to effective action on
this democratic sentiment.
The Gallup and Harris polls, as well as
articles like Erskine's had an effect on the NRA and other gun groups. There
was a tendency to take such data at face value and conclude that gun owners
were indeed a besieged minority, that those who stood for original American
values were an endangered species.
Beginning with the findings of a 1378
poll conducted by DMI (Decision Making/Information), there seemed reason to believe
that popular sentiment on actually banning handguns was more closely aligned
with the views of the NRA than with those of the National Coalition to Ban
Handguns, This startling thesis is argued by David Bordua in a chapter in
Firearms and Violence. Bordua shows that not only have pollsters Gallup and Harris
failed to be neutral in reporting popular attitudes on guns, they actually
mislead firearms prohibitionists to think that they would enjoy smashing
victories if the wheeling and dealing of ordinary legislative process were
abandoned in favor of the unfiltered voice of the people.
Things looked very bright for the prohibitionists.
Early polls seemed to support their optimism. Gun ownership rates were
comparatively low. The ban enjoyed the support of the Boston Globe, the
Christian Science Monitor, the Washington Post and the New York Times.
The
vote was not close. By a ratio of 2.25 to l, the unfiltered voice of the
electorate, which the prohibitionists sought so hard to hear, rejected the ban.
A second referendum defeat, by a similar margin, came in
Reading elections for deep attitudes
and trends is treacherous business. But elections and referenda impose upon opinion
polls a point of contact with the real world. First, because such contests may
reveal true preferences more clearly than polls. Second, because elections and
referenda register intensity of preference in a way that polls may not. These
strategic miscalculations have left those with strong prohibitionist preferences
offering expenditure-explanations for their resounding electoral defeats.
Rather than discuss the expression of the popular will, prohibitionists focus
upon the huge "war chests" amassed by their opponents. The electoral
defeats seem to have redirected the efforts of the prohibitionists toward the
courts (ironically, the least democratic part of our political process) and product
liability suits.
Should one conclude that Americans are
opposed to "gun control?" Pro-gun forces might like to think so. But
as usual, the real story is more complicated. After meticulously analyzing all the
public opinion literature concerning legal restrictions on guns, Wright et. al.
argue cogently that the following inferences are justified:
*That a large
majority favors any measure involving registration or licensing of handguns,
both for new purchases and for handguns presently owned.
*That the public
would not favor such measures if their costs were astronomical.
*That a large
majority believes that such measures must be uniform across state lines if they
are to be effective. That there is little popular support for an outright ban
on private ownership of handguns.
*That a majority
would favor a ban on the manufacture and sale of Saturday Night Specials.
*That a large
majority believe that they have a right to own guns and that the Constitution
guarantees that right.
*That a large
majority feel that a licensing requirement for handguns would not violate their
right to gun ownership.
*That nearly
everybody favors strict, mandatory sentences for persons using guns to commit
crimes.
Wright et. al. conclude their
discussion saying "so far as public opinion on such a complex issue can be
summarized at all, the thrust of majority thinking on gun control seems to be that
the government should be just as careful about who is allowed to own and use a
firearm as it is about who is allowed to own and use automobiles or other
potentially hazardous commodities." That this statement is not quite correct
shows how difficult it is to summarize popular opinion about guns. We are taught
early in driver's education that driving an automobile is a privilege not a
right. To the extent that Americans believe this, they view guns differently.
They think that they are entitled to gun ownership under the Constitution.
The Wonderful World of Gun Prohibition
Wouldn't the world be a better place
if guns were prohibited nonetheless? Wouldn't the passage of prohibitionist legislation
express a noble vision - a society which had no place for guns? Whatever the political
realities, shouldn't a rational person favor a total ban on private ownership
of firearms, or at least handguns?
Don Kates, Jr., editor of Firearms and
Violence, has done more to make our thinking on these questions rational than any
other contemporary writer. In journal articles, op. ed. pieces, and books,
Kates has tirelessly urged that our thinking on guns be shaped by historical
understanding, by social tolerance, by an appreciation of how the civil rights
of the poor and politically powerless are imperiled by prohibitions of whatever
sort, and by the criminological implications of handgun bands. But above all,
Kates has stood for the proposition that our thinking about guns be realistic and
not utopian.
In his "Handgun Banning and the
Prohibition Experience," a chapter in Firearms and Violence, Kates draws
attention to an aspect of the gun control issue which has been largely ignored.
Suppose, asks Kates, that handgun prohibitionists got their way, and a national
law banning private ownership of handguns were to become law. How would such a law
be enforced? Proponents of handgun prohibition have been surprisingly silent on
the issue. Yet our "noble experiment" teaches that prohibiting things
does not make them disappear Kates proposes that we might gain insight into the
enforceability question by examining our experience with alcohol prohibition.
This strategic proposal may strike
some as a clever poisoning of the well. After all, alcohol prohibition is so widely
discredited, so uniformly regarded as a total mistake, that to cast the handgun
prohibitionists as modern-day counterparts to the Temperance Movement is
rhetorically unfair. Not so, counters Kates, the parallels are not forced.
First, the Temperance Movement, like the handgun prohibition movement, also enjoyed
the support of most of those who were regarded as socially and politically
"progressive." The Movement associated those who resisted them with
the liquor industry. (often described as the "liquor lobby") and as
such dismissed them as self-interested and reactionary. Mixing religion, high moral
purpose, and an accurate perception that alcohol is an ingredient in mortality and
crime, temperance advocates claimed that liquor is a major factor in sex crime,
robbery, mob violence, and all varieties of homicide. Their claims were not
wrong then, nor are they wrong now. Thus Kates argues,
Since the link between handguns and crime is frequently argued
as justifying handgun prohibition, it may be instructive to compare the
respective degrees of linkage. Over the past fifty years, handguns have been
involved in up to 50% of all murders; in comparison, most studies show that up
to 86% of offenders have been drinking when the murder was committed . . .
Almost 41% of robberies are committed with firearms, primarily handguns; in comparison
one study estimates alcohol involvement as high as 72% in robbery offenders. Firearms,
primarily handguns, are used as 5% to l2% of rape perpetrators, in comparison,
about 50% of rape perpetrators had been drinking before the crime.
Moreover, similar sorts of causal
mechanism are adduced to explain the correlations with crime and violence. Both
liquor prohibitionists and handgun prohibitionists argue that the things they oppose
transform a person's motivational structure, lowering inhibitions against
violence and aggression. There is in fact good evidence that liquor has the
claimed effect in some people. Regarding the psychological effects of weapons possession,
there is, as yet no empirical evidence.
Kates warns against loss of
perspective when looking at the data concerning alcohol, guns and crime. By focusing
only on criminal behavior, it may be tempting to assert a causal relationship
even if there is uncertainty about the precise nature of the causal mechanism.
However, when all alcohol users and all handgun owners are considered, the
relationship with crime becomes insignificant. Less than 0.018% of handguns are
used to murder while the proportion of heavy drinkers who murder is 0.081%. Thus
if there is in fact a causal connection between alcohol and violence and
handguns and violence, the mechanism is at work in a very small subpopulation.
It is reasonable to suppose that prohibition would be most effective with that
portion of the population already inclined to be law-abiding. What are the chances
that this population would include the violence-prone subpopulation? Handgun
prohibition will do no good unless those who are violence-prone are deterred by
it. Similarly, liquor prohibition will do no good unless those who are prone to
violence under its influence are deprived of it. If we aim at the reduction of
violence by criminal handgun and alcohol abusers, we must find ways to identify
them and disempower them. Efforts to do either of these things face a thicket of
practical thorns plus all the obstacles imposed by a culture and legal system
which cherishes individual rights, the latter especially if we propose to
disempower "likely offenders" before they have been violent for the
first time.
Conclusion
That none of the tenets of the Gun
Myth is true has not diminished their popularity. Why is this? Doubtless, a full
explanation would be very complex. But part of the story must be that for many
attitudes toward private possession of firearms are linked to, and to some
degree follow from, attitudes regarding self-defense, attitudes regarding recreation,
theories about crime, in short, follow from their cultural convictions and
conceptions of the good rather than from what there may or may not be data to
support. If this hypothesis is correct then for many, attitudes toward private
possession of firearms may be insulated from what there is good reason to
believe on the basis of the evidence. Why? Because the attitudes are not contingent
upon the evidence but instead are contingent upon cultural values and a conception
of the good. In our culture, beliefs about issues like abortion and guns are
not treated as convictions to be held hypothetically, as based upon the best
reasons, as just a set of beliefs which one could costlessly give up if the ground
for them gives way. Part of one's identity as a person is constituted by
beliefs about such matters. Were a person's commitment to such beliefs to flag,
his or her colleagues would probably not rejoice that their friend had, on the
basis of the best evidence, abandoned some false beliefs. On the contrary, they
might think that she had been lost to the forces of social reaction embodied by
the NRA. Imagine the reaction if Senator Kennedy were to reveal in the course
of some subcommittee hearing that his position on handgun control had changed
because it had rested upon beliefs which he now saw to be false and that he now
was going to accept campaign contributions from the Second Amendment Foundation.
Our liberal political heritage is
built upon the assumption that there are incompatible conceptions of the good life.
It further holds that these incompatible conceptions of the good life may yet be
fully rational for persons to pursue. If these old liberal assumptions are correct,
then public affirmation of a single conception of the good life cannot be
expected. If, as l suspect, there is a very strong component of cultural
conflict over the good life and virtue in the political struggle over guns, reason
alone will not bring an end to it. For such conflicts, our tradition has urged tolerance
and struggled to preserve maximal liberty for each consistent with like liberty
for all. It has discouraged campaigns which aim to destroy the liberty which gives
us pluralism.
But if reason cannot totally resolve the
cultural and political struggle over guns, it can do much more for the conflict
than it has to date. It is not uncommon for rational people to support sex
education in the schools. They believe, quite rationally, that it is naive to think
that teenagers who are more ignorant about sex will be less sexually active. They
hope that greater knowledge may breed wisdom (and restraint) and fewer unwanted
babies. However their reason evaporates when it is suggested that they should
support gun education on the same grounds as they support sex education. People
who argue cogently for sex education in school and ridicule their conservative
friends for thinking that sex education teaches teenagers how to have sex, oppose
gun education because they think such courses would teach their sons and
daughters how to shoot people.26 People who usually are jealous of
civil rights, solicitous of the interests of the poor and suspicious of
concentrating too much power in the hands of police, favor firearms laws which would
compromise privacy if enforced, favor bans on the manufacture of cheap handguns
(the only kind the poor might afford), favor a monopoly on handgun possession
for the police. We are a long way from rational discussion about guns. These
books have moved us a few steps closer.
Footnotes
In 1984, the number of handgun
homicides reported to the FBI was 7,277. Of this number, more than ten percent were
judged justifiable. Since 1980, the number of gun murders has declined steadily
from l3,650 in 1980 to 9,819 in 1984. Over the same period, total murders have
declined steadily as well from 21,860 in 1980 to 16,689 in 1984. The percentage
of murders committed with handguns in the period 1975-1984 has ranged from 51%
in 1975 to 43% in 1982. In 1984, the most recent year for which figures are available,
the percentage of murders committed with handguns was 44%. Statistical Abstracts of the United States 1986, p. l7l.
2 Quoted in B. Bruce-Biggs. "The
Great American Gun War." The Public Interest 45, 37-62, (1976), p. 59.
3 Quoted in J. Anderson, Guns in American Life, (1984) pp.
l3-ld.
4. M. Lernet. "Respectable Bigotry"
The American Scholar (Autumn 1969):
p. 608.
5 B. Bruce-Biggs. "The Great
American Gun War." The Public
Interest 45. (1976), pp. 37-62.
6. Where can the "Gun Myth"
actually be found? cf. J. Anderson, Guns
In American Life (1984): R. Hofstadter. "
7. Firearms and Violence, pp. 72-73.
8. Wright, et. al., p. 3.
9. E. M. Kennedy, "The Need for Gun
Control Legislation," Current
History, 7l (July/August 1976), 26.
10. The Senator seems not to live by
the judgments he makes about the security needs of others however. Recently,
his personal body guard was arrested in a Senate office building carrying two
submachine guns, a pistol and 146 rounds of ammunition in six clips. A
spokesman for the Senator said that "The senator's primary concern was
leaving the city with adequate protection for himself and his sisters (Jean
Smith and Pat Lawford), who are traveling with him." Kennedy reportedly contacted
Attorney General Meese personally in an attempt to have the body guard, (whom he
has employed on many occasions when traveling abroad), released and have the
weapons retuned. Rich and powerful individuals with prohibitionist sentiments
seem not to be bothered by the inconsistency in availing themselves of the protective
benefits that guns provide while urging prohibition for those less well
connected and unable to afford the services of professional weapon carriers. (A
Washington Post article run in the Charlotte Observer, on Wednesday, January
15, 1986, p. 9A).
11. This point
is powerfully made by Joyce Malcolm. See her "The Right of the People to
Keep and Bear Arms: The Common Law Tradition," in Firearms and Violence. Politicians in the ante-bellum South
apparently agreed with Aristotle about citizenship and arms. They denied slaves
and "free persons of color" the right to possess arms on the ground
that they were not full members of the political community. cf. Halbrook, ch.
4.
13. Aristotle, Politics, p. 7l.
13. Ibid.
14. Ibid., at p.
79.
15. Quoted in Halbrook at p. 21.
16. G. Wills, Inventing
17. Thomas Jefferson, The Papers of Thomas Jefferson ed.
Julian Boyd, vol. 8 (Princeton, N.J.: Princeton University Press, 1953), p.
407.
18. Writings of Thomas Jefferson p. 341 (A.A. Lipscomb. ed. 1903).
19. James Burgh. Political Disquisitions into Public Errors, Defects, and Abuses, (3
vol.,
20. That the police have no general
duty to protect any assignable individual from violent attack is asserted in both
statute and judicial decisions. For example, in two recent cases in
21. R. Shalhope, "The ideological
Origins of the Second Amendment," The
Journal of American History, (December 1982), Vol. 69., No. 3., pp.
599-614.
22. D. B. Kates, Jr., "Handgun
Prohibition and the Original Meaning of the Second Amendment,"
23. For example, see Charles Fairman, "Does
the Fourteenth Amendment Incorporate the Bill of Rights?" Stanford Law
Review 2 (December 1949), p. 111.
24.
Kleck,
23. Allman, "Staying Alive in the
20th Century" in Science 85,
Vol. 6, No. 8, (October 1985), pp. 31-4l at 34.
Lance K. Stell is Professor of
Philosophy and Chair at