Maryland Law Review
56 (1997):438.
Posted for educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571. David Kopel is author of the book The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? available from Amazon.com.]

COMMUNITARIANS, NEOREPUBLICANS, AND GUNS:
ASSESSING THE CASE FOR FIREARMS PROHIBITION

David B. Kopel[*]
Christopher C. Little[**]

Introduction

It is high time for the federal government to outlaw gun possession by anyone except the police and the military, and to round up all firearms currently in private hands. Millions of Americans think so, but even the most aggressive of America's gun control groups have not been willing to advocate such a policy. Into the breach has stepped the Communitarian Network, arguably the most influential think tank in Washington. In a lengthy position paper, The Case for Domestic Disarmament (Domestic Disarmament),[1] the Communitarian Network presents a forceful law-and-policy case for a gun-free America.

Domestic Disarmament is noteworthy because it is almost the only scholarly document arguing at length for confiscating all guns,[2] rather than merely outlawing the future production of certain "bad" guns (such as handguns and so-called "assault weapons").[3] Domestic Disarmament is particularly important because it is a product of the Communitarian Network, the think tank that, far more than any other, has the ear of President Clinton and many other leading Democrats (and (p.440)some Republicans).[4] Moreover, Domestic Disarmament offers an entirely new vantage point from which to view the firearms issue--from the communitarian context, in which the individual's responsibilities to society are seen as more important than the unlimited exercise of rights.[5]

This Article evaluates and responds to Domestic Disarmament and the Communitarian Network's gun prohibition agenda. In addition to discussing Domestic Disarmament, this Article considers David C. Williams's Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment,[6] which calls for a somewhat different communitarian approach to gun policy. Williams argues that (1) the Second Amendment poses no impediment to any form of gun control on individuals,[7] and (2) in the long term, the government should revive the "well regulated Militia"[8] and encourage citizen proficiency with arms and participation in communal defense organizations.[9]

Part I of this Article provides an overview of communitarianism and the Communitarian Network and summarizes the argument of Domestic Disarmament. Part II inquires into whether domestic disarmament is enforceable and what communitarian problems may be raised by enforceability issues. Part III sketches a variety of possible solutions to the American gun dilemma, including the communitarian militia proposals of Williams.[10] Part IV briefly reviews the contribution that firearms ownership may make to public safety, and Part V closely scrutinizes (p.441)Domestic Disarmament's conclusion that the Second Amendment presents no barrier to firearms confiscation.[11]

For too long, the American gun control debate has avoided the most fundamental issues. The progun and antigun lobbies both agree that there are "good" gun owners and "bad" gun owners; the main issues concern drawing a line between the two and determining what kinds of measures should be used to keep the two groups separate. In addition, the antigun lobbies argue that there are good guns (many types of rifles and shotguns) and bad guns (handguns and assault weapons) and that no gun control policy should deprive good Americans of their good guns.[12] Nevertheless, none of the major policy groups participating in the American gun debate argues, as does the Communitarian Network, that America's gun policy should be modeled on Japan's, in which communitarian values prevail, guns are almost entirely prohibited, and gun violence is rare.[13] By forcefully raising the issue of whether any Americans should have guns at all, the Communitarian Network performs a great service by inviting inquiry into the most fundamental premises of the American gun control debate. In this Article, the authors hope to advance the inquiry begun by Domestic Disarmament.

I. The Communitarian Network and Domestic Disarmament

A. The Communitarian Agenda

The Communitarian Network is a public policy think tank founded upon the philosophy of sociologist Amitai Etzioni, a professor of American Studies at George Washington University.[14] Dr. Etzioni is joined by a number of like-minded academics, many of whom (p.442)enjoy close connections to the Washington political establishment.[15] The Communitarian Network's mission is to address what it considers the baneful societal effects of an imbalance between individual rights and social responsibilities.[16] The United States, argue communitarians, has become a place where responsibilities no longer accompany rights to the extent they once did, resulting in a fragmented society in which irresponsibility, selfishness, and violent crime run rampant.[17] These socially deleterious effects of an unrestrained individualism must therefore be reversed through the advocacy and implementation of new policies designed to further the common good.[18] The Communitarian Network's slogan is "strong rights presume strong responsibilities."[19]

Communitarians also argue that parents should forsake consumerism, personal advancement, and greed.[20] Workplace reforms such as paid parental leave and flex schedules should be mandated.[21] Additionally, communitarians propose making it more difficult for couples with children to divorce.[22] Advocacy of an increased emphasis on moral education in the nation's schools is another element of the communitarian message.[23] Schools should "teach those values Americans share,"[24] such as "the values of civility, sharing, and responsibility to the common good."[25]

The Communitarian Network also advocates a number of other public policy ideas to increase public virtue and advance the common good. Included among these are campaign finance restrictions and a heightened emphasis on the importance of voting, jury duty, and paying taxes.[26] Among the most controversial proposals are the implementation of widespread sobriety checkpoints,[27] less privacy for HIV (p.443)carriers,[28] and mandatory organ harvesting from deceased persons who had not expressly forbidden the government from appropriating their organs.[29]

B. The Communitarian Movement

The Communitarian Network does not exhibit the scholarly indifference of the ivory tower. "Like a scientist in a laboratory," writes the Philadelphia Inquirer, Professor Etzioni "has a three-step formula for changing society. Step One, create the message. Step Two, spread the message. Step Three, organize a grassroots movement."[30] The Communitarian Network has created an activist arm to implement its ideas on a grassroots level: the American Alliance for Rights and Responsibilities. There is also a communitarian journal, The Responsive Community. The journal's subtitle includes the communitarian mantra "rights and responsibilities."[31] The communitarians have written several books.[32]

Professor Etzioni's movement has especially piqued the media's interest because the communitarians exercise a great deal of influence on the Clinton Administration.[33] Indeed, candidate Clinton's "New Covenant" speech was drafted in part by communitarian philosopher (p.444)William Galston.[34] Dr. Etzioni opines that President Clinton is a communitarian to the core.[35]

Communitarians insist that they are not majoritarians and that any scheme to further the cause of community rights must be constitutionally sound.[36] Critics, however, accuse them of being disingenuous. Many skeptics charge that communitarians are actually apostles of a new statism and that the Communitarian Network is misleading (p.445)its readers when it denies that majoritarian coercion will be necessary to achieve many of its goals.[37] Whatever communitarians are, they are something new to the American political scene.[38]

C. The Case for Domestic Disarmament

The Communitarian Network's papers on gun control call for severe firearms legislation, based upon the premise that the right of individuals to keep and bear arms (which really is not a right at all, it is argued) is outweighed by the right of the public to be safe. The position is summarized in The Responsive Communitarian Platform: Rights and Responsibilities (Platform):[39]

There is little sense in gun registration. What we need to significantly enhance public safety is domestic disarmament of the kind that exists in practically all democracies. The National Rifle Association's suggestion that criminals, not guns, kill people ignores the fact that thousands are killed each year, many of them children, from accidental discharge of guns, and that people--whether criminal, insane, or temporarily carried away by impulse--kill and are much more likely to do so when armed than when disarmed. The Second Amendment, behind which the NRA hides, is subject to a variety of interpretations, but the Supreme Court has repeatedly ruled, for over a hundred years, that it does not prevent laws that bar guns. We join with those who read the Second Amendment the way it was written, as a communitarian clause, calling for community militias, not individual gun slingers.[40](p.446)

This position is developed in the Communitarian Network position paper dedicated solely to the issue of gun ownership, Domestic Disarmament. The paper's argument is summarized in five propositions:

1. Legal analysis shows there is no individual right to keep and bear arms guaranteed in the Second Amendment to the United States Constitution;[41]

2. Permitting individual gun ownership in this country causes thousands of injuries and deaths every year and, therefore, poses an inordinate threat to public safety;[42]

3. Polls indicate that the vast majority of Americans want some forms of additional gun control legislation;[43]

4. The gun control proposals currently advocated (waiting periods, registration, and the like) will not adequately mitigate the damage gun ownership causes to the American community;[44]

5. Therefore, because there is no constitutional right of individuals to keep and bear arms, America must adopt laws even stricter than those in Europe, Canada, and Japan.[45]

As a first step, Domestic Disarmament calls for a ban on the sale and possession of handguns and so-called "semiautomatic assault weapons," as well as a prohibition of all ammunition that can be used in (p.447)these firearms.[46] (This latter requirement would outlaw virtually all ammunition, because handguns and assault weapons come in a nearly limitless variety of calibers.)

Etzioni is willing to offer a few concessions to gun owners:

Gun collectors may be accommodated by provisions allowing them to keep their collections, but rendering them inoperative (cement in the barrel is my favorite technique). Hunters might be allowed (if one feels this "sport" must be tolerated) to use long guns that cannot be concealed, without sights or powerful bullets, making the event much more "sporting." Finally, super-patriots, who still believe they need their right to bear arms to protect us from the Commies, might be deputized and invited to participate in the National Guard, as long as the weapons with which they are trained are kept in state-controlled armories. All this is acceptable, as long as all other guns and bullets are removed from private hands.[47]

Making some breathtaking assumptions about the ease with which the government will collect more than 200 million guns and many billion rounds of ammunition from at least 50 million gun owners,[48] Etzioni proposes the following experiment designed to set the policy in motion:

Perhaps the best way to proceed, if nationwide domestic disarmament cannot be achieved immediately, is to introduce it in some major part of the country, say, the Northeast. That will allow everyone to see the falsity of the NRA's beloved statement that criminals kill people, not guns.... The rapid fall in violent crime sure to follow will make ever more states demand that domestic disarmament be extended to their region.[49]

Thus, to Etzioni, the answer to gun crime is simple: implement a national policy that entails the virtual prohibition of most firearms and ammunition, beginning with a ban on assault weapons and handguns, and eventually encompassing all firearms and ammunition in private hands.

There are some indications that the Clinton Administration, following the communitarian lead, is thinking along similar lines. Although President Clinton has stated his opposition to a ban on hunting weapons, he has at least indicated support for most of the rest (p.448)of the Communitarian Network's agenda on guns. In particular, he put an immense amount of political capital into passing the 1994 federal ban on assault weapons.[50] After that year's elections, he opined that the assault weapons ban had cost the Democrats twenty seats in the House of Representatives, thereby giving control of Congress to the Republicans.[51] Nevertheless, said President Clinton, he would sacrifice his own reelection to maintain the federal ban.[52]

In addition, President Clinton ordered Attorney General Janet Reno to draft a comprehensive proposal for strict national handgun licensing.[53] A White House working group outlined a proposal for highly restrictive licensing of all handguns and all semiautomatic long guns that have not already been banned, and much more stringent controls on all other firearms.[54] In a 1993 interview, President Clinton (p.449)stated that he favored a ban on all handguns, but that he recognized such a ban was not currently politically feasible.[55] The Federal Bureau of Investigation (FBI) and President Clinton have begun pushing for broad new restrictions on ammunition.[56] Finally, Henry Cisneros, the Secretary of the Department of Housing and Urban Development (HUD) during President Clinton's first term, was a signer of the Platform manifesto before accepting his post in the Clinton Administration.[57] Were his views sharply out of step with those of the President (for example, had he signed a document calling for a complete ban on abortion), it is doubtful that he would have remained in the Cabinet.(p.450)

II. The Feasibility and Communitarian Implications of
Domestic Disarmament

Communitarians, including President Clinton, argue that the presence of so many guns in America makes it the most dangerous country in which to live.[58] Rhetorical flourish is employed to drive the point home: "[T]he danger that our cities be turned into Beiruts or Dubrovniks must be averted."[59] The gun control proposals that have been enacted into law and those that are currently the subject of political discussion are but "vanilla-pale measures," according to Etzioni; to him, the only truly effective measure to end gun violence is domestic disarmament.[60]

Many criminologists agree that the enactment of laws that Etzioni calls vanilla-pale measures will do little to stem the tide of gun-related violence in this country. The leading criminological studies, those done by James Wright, Kathleen Daly, Peter Rossi, and Gary Kleck, conclude that the measures currently proposed will, at best, only slightly mitigate the level of criminal misuse of firearms.[61] One of the Wright-Rossi studies, a National Institute of Justice survey of felons in state prisons, concluded that criminals will always get guns and use them, no matter what gun control laws are passed.[62] Indirectly supporting the viewpoint of Domestic Disarmament, Kleck observes that, in a country awash in guns, such as ours, no gun control policy--short of universal confiscation--"is likely to have a dramatic impact on violence in America. Because gun availability, even among high-risk individuals, seems to have at best a modest impact on violence rates, gun controls only nibble at the edges of the problem rather than striking (p.451)at its core."[63] Thus, Etzioni's repudiation of vanilla-pale gun control measures is well supported by scholarly research on the gun issue.

Most European nations (Switzerland and a few others excepted) impose stricter firearms controls than does the United States.[64] The typical model is a strict licensing system for handguns and a somewhat milder licensing system for most long guns.[65] There is a great deal of variation in this model, from countries with the most rigorous laws and the most aggressive enforcement against ordinary gun owners (such as Spain, Germany, and Great Britain)[66] to countries with more relaxed attitudes (such as Norway, France, Italy, Belgium, Latvia, and the Czech Republic).[67] Actual bans on handguns (Ireland)[68] are rare, and bans on all guns (Romania under Facism Communism)[69] are rarer still. Thus, Domestic Disarmament goes far beyond where most European nations have trod, at least during their periods of democratic rule. Nevertheless, Domestic Disarmament springs in part from what might be termed a European sensibility toward an armed populace.[70] In a 1976 Public Interest essay, The Great American Gun War,[71] historian B. Bruce-Briggs described the combatants of what he called a "low-grade war"[72] fought over gun ownership by social factions representing "two alternative views of what America is and ought to be."[73] Advocates of strict gun control are usually

those who take bourgeois Europe as a model of a civilized society: a society just, equitable, and democratic; but well ordered, with the lines of responsibility and authority clearly drawn, and with decisions made rationally and correctly by (p.452)intelligent men for the entire nation. To such people, hunting is atavistic, personal violence is shameful, and uncontrolled gun ownership is a blot upon civilization.[74]

In most of Europe, gun ownership is not a right but a state-granted privilege.[75] Likewise, the Communitarian Network views gun ownership in America as a privilege rather than a right, a privilege that should now, due to the level of gun violence, be denied.[76]

Ironically, despite the Communitarian Network's emphasis on the importance of individuals yielding to the will of the majority of the community, the Communitarian Network's gun prohibition policy actually deviates greatly from what a large majority of Americans favor. Polls indicate that most Americans believe the Second Amendment does protect an individual right to arms,[77] although many Americans do support what they see as moderate gun control measures.[78] Most Americans do not favor firearms prohibition; rather, they view self-defense[79] and the recreational use of firearms as obvious benefits to be retained.[80] A ban on handguns is favored by only twenty-seven percent.[81] A ban on long guns garners only eleven percent support.[82]

Because, in all likelihood, Americans will not support a policy of gun prohibition, why even take this particular proposal of the Communitarian Network seriously? Although the case for domestic disarmament is at the moment a pipe dream, there are important reasons why the Communitarian Network's argument deserves serious attention.(p.453)

First, the gun rights lobby has long argued that the eventual goal of gun control legislation is gun prohibition.[83] Procontrol voices have pointed to this allegation as evidence of the lobby's "paranoia."[84] We now witness an important think tank, one that strongly influences the present Administration and many members of Congress, openly calling for gun confiscation. Second, while the communitarians serving in the Clinton Administration do not believe that total disarmament is possible, they clearly hope to achieve a high degree of disarmament.[85]

Serious reflection on the argument for domestic disarmament raises the question of how wise such a policy would be, particularly from the standpoint of communitarianism. Might the attempt to seize as many firearms as possible create more communal problems than it would solve? This question is faced squarely by Washington, D.C., attorney and former Justice Department official Ronald Goldfarb, who follows Etzioni in calling for domestic disarmament "beginning with a model program."[86] Disarmament should be implemented in three phases, avers Goldfarb: (1) increasing regulation of firearms sales, (2) registering firearms once the sales of such have been efficiently regulated, and finally (3) confiscating as many weapons and as much ammunition as possible.[87] Goldfarb seems troubled, however, over problems arising from such a controversial and herculean endeavor:

Is there an individual right to self-defense that cannot be abrogated? How do we balance the necessary policing with the public's right of privacy and its constitutional protections against illegal searches and seizures?

... How would disarmament be accomplished? What would be done with the existing 200 million firearms ...? What about hunters and other sportsmen?(p.454)

... What is the danger of creating a disarmed public? How do we adopt such a profound proposal ...? Would virtual disarmament make the law enforcement establishment too powerful? Would a real ban on guns fail as dismally as the attempt to ban alcohol?[88]

A. Guns and Other Dangerous Items

No approach to gun control can claim to be rational without first putting gun violence in perspective. There are at least 50 million gun-owning families in America.[89] Of the roughly 200 million guns they own, about a third are handguns.[90] There are at least one million so-called assault weapons.[91]

There are approximately 30-35,000 gun-related deaths in America every year.[92] Viewed in light of how many guns and gun owners there are in America, the numbers reflect that only a very small fraction of gun owners misuse their guns. This fact has led sociologist James D. Wright to note that, in sum, "gun ownership is apparently a topic more appropriate to the sociology of leisure than to the criminology or epidemiology of violence."[93]

It is undisputed that firearms are used for defensive purposes at least several tens of thousands of times per year.[94] Yet the Communitarian Network does not propose banning a product that is involved in more deaths every year than guns, a product that does not prevent any crimes. That product is alcohol, which is in some ways a close analogue to guns.(p.455)

Though a legal drug rather than a manufactured tool, alcohol, like guns, is used recreationally by millions of Americans.[95] Although the manner in which harm is wrought by drinking (alcohol-related diseases, accidents caused by drunks, and criminal violence perpetrated by the disinhibited) is not exactly the same as with guns (suicide, firearms accidents, and crimes perpetrated with guns), alcohol, like guns, is a material cause of harm to many Americans.[96] Further, because alcohol disinhibits potential criminals and lowers the defensive awareness of potential victims, it contributes to a much larger fraction of violent crime than do firearms.[97] The use of alcohol is a material cause of approximately 100,000 deaths every year in America, nearly three times as many deaths as caused by firearms.[98] The parallel between alcohol and firearms is also reflected by the fact that the same agency supervises the two items: the Bureau of Alcohol, Tobacco and Firearms (BATF), which might aptly be called the "Bureau of Semi-Licit but Morally Suspect Consumer Products."

In contrast to the expansive gun control arguments of Domestic Disarmament, the Communitarian Network limits its attention to the societal costs of alcohol to vanilla-pale measures such as drunk driving roadblocks.[99] Where is the Communitarian Network's argument for additional "alcohol control" laws analogous to those they advocate for guns? Why not impose a ban on distilled liquor on the basis that "no one needs" that much alcoholic firepower to have a good time? (This is the usual line of argument for laws banning assault weapons.)[100] More important, where are the Communitarian Network's position papers on the reinstitution of domestic prohibition? Why are we to (p.456)accept the toll exacted on society by the easy availability of alcohol, but not that of the less-easy availability of guns, especially when the former kills nearly three times more than the latter?

Communitarian advocates of prohibitive gun control laws--most of whom, it is safe to assume, imbibe on occasion--apparently accept the cost to society of the ease with which alcohol is procured and consumed, most likely because drinking is pleasurable and the large majority of drinkers are responsible. Thus the Communitarian Network does not apply the same logic to gun ownership as to alcohol, even though the vast majority of gun owners take pleasure in owning firearms and exercise that right responsibly. Guns are singled out for prohibitionist legislation, while a relatively blind eye is turned toward the much heavier toll exacted by the sale and consumption of alcohol.

This analogy between guns and alcohol is not intended to minimize either the annual tragedy of 35,000 firearms-related deaths or of 100,000 alcohol-related deaths. It is only intended to put matters in perspective and to highlight that, as a matter of course, Americans accept the social costs of potentially dangerous substances such as alcohol, or potentially dangerous objects such as automobiles and guns, because of the benefits those things afford. One may certainly argue that alcohol actually provides little benefit to society, but the experiment with alcohol prohibition during the 1920s demonstrated that millions of Americans found the recreational benefits of alcohol consumption to be sufficient justification for resistance to that policy. It was this stubborn refusal of Americans to give up their freedom, combined with the observation of how alcohol prohibition lined the pockets of gangsters,[101] that led to the repeal of Prohibition.[102] Few today, communitarians included, would argue for the resurrection of the failed Prohibition experiment, even though alcohol actually inflicts greater harm on society than do firearms.[103]

1. Noncompliance of Law Enforcement Personnel.--Proponents of gun prohibition sometimes forget that America's law enforcement community, which would obviously be needed in the effort to confiscate all firearms, includes many "gun culture" types. This is all the more true in the nation's vast rural areas, where a disproportionate (p.457)fraction of the nation's guns are possessed.[104] Surveys have indicated that the rank-and-file of the law enforcement community possess a deep-seated belief that law-abiding citizens have a constitutional right to own firearms.[105] It is therefore likely, as firearms instructor and former police officer Massad Ayoob suggests, that many members of the law enforcement community would either openly refuse to carry out a gun confiscation law or would at least contribute to its subversion in some way.[106]

One such law enforcer is Richard Mack, former Sheriff of Graham County, Arizona. Sheriff Mack has gained national attention because of his successful federal lawsuit that blocked implementation of the Brady Act[107] in his state.[108] Mack believes that law enforcement (p.458)officials and military personnel are bound by their oath of office to refuse to enforce any unconstitutional gun law:

No police officer, soldier, or any other government official, should in any manner comply with an order that is unlawful or attempt to enforce a mandate that is unconstitutional.... May each of us in this most noble profession, as we pursue the guilty among us, never be guilty ourselves of the greater crime: violating our oath in God's name to defend the constitutional rights of the people we work for.[109]

2. Resistance.--As Ronald Goldfarb and other gun prohibitionists realize, a successful policy of domestic disarmament must be preceded by a federal attempt to register all firearms currently owned.[110] In fact, the German Nazi regime used registration records as a precursor to, or as a means of, confiscating guns within its own borders and within its territorial acquisitions, and many gun owners are aware of this historical precedent.[111] Fear of confiscation is one reason for such little compliance with current registration laws where they have been enacted in America. New York's "Sullivan Law,"[112] the first major licensing and registration scheme imposed in twentieth-century America, is ignored by millions of New Yorkers.[113] In Illinois it is estimated that about 75% of handgun owners are in noncompliance with the state's registration law.[114]

There has also been substantial resistance to laws that require registration of so-called assault weapons. California was the first state to pass a ban on military-style semiautomatics.[115] The California law requires (p.459)mandatory registration of all such weapons owned prior to the enactment of the ban.[116] A group called Gun Owners React openly called for those who owned such arms to disobey the registration requirement.[117] Nearly 90% of the approximately 300,000 assault weapon owners in California refused to register their weapons.[118] A few months later, Denver passed a similar ordinance.[119] Only 1% of the estimated 10,000 assault weapons in that jurisdiction were ever registered.[120] Other municipalities that have passed similar ordinances have seen about the same percentage of guns registered.[121] New Jersey was the next state to enact an assault weapon ban.[122] Out of the 100,000 to 300,000 assault weapons in that state, 947 were registered, an additional 888 were rendered inoperable, and 4 were turned over to the authorities.[123]

If the Morton Grove, Illinois, handgun ban is any indication, gun owners appear to be even more disobedient to decrees requiring them to turn their firearms over to authorities.[124] The Morton Grove police wisely adopted an "honor system," whereby guns would be confiscated through the owners' voluntary compliance with the ban, rather than by searching the residences of known handgun owners.[125] Only a handful of handguns were turned in.[126] Noncompliance with such laws in more libertarian areas of the nation, such as the West and (p.460)South, may be higher. Indeed, noncompliance is legitimized by vocal progun police such as the implacable Sheriff Richard Mack and his journalist cohort, Timothy Robert Walters:

Only a nation of armed citizens--the ones who protect themselves from criminal attack every 48 seconds--is equipped of mind, spirit and arsenal sufficient to protect the intent of the Founding Fathers and the tenets of the U.S. Constitution and Bill of Rights. As a united people, we must not allow the enemy to take away our last argument for freedom.[127]

3. Overwhelming and Ruining the Criminal Justice System.--Criminologist Don Kates observes that even if only half of all handgun owners defied a confiscation law, the criminal justice system would simply not be able to cope:

Terrorizing [tens of millions of handgun owners] into compliance would require catching, trying and jailing large numbers of them. But to jail just one percent of probable violators would fill all the cells in our present federal, state and local jail system. We would have to either free all the murderers, robbers, and rapists now serving time or build a brand new prison system doubling our combined national capacity--just to hold one percent of all probable gun law violators. Comparable expansion would be required for our courts, prosecutors and police. Effective enforcement of national gun legislation would require an expenditure equal to the cost of catching, trying and punishing every other kind of federal, state, and local criminal combined. I cannot do better than to quote the question with which [a University of] Wisconsin study ends: "Are we willing to make sociological and economic investments of such a tremendous nature in a social experiment for which there is no empirical support?"[128]

Add to a handgun ban the attempt to enforce a law banning all firearms, or virtually all firearms, and enforceability problems become immense.

Just as alcohol prohibition in the 1920s and drug prohibition in modern times have spawned vast increases in federal power, as well as (p.461)vast infringements on the Bill of Rights, another national war against the millions of Americans who are determined to possess a product that is very important to them is almost certain to cause tremendous additional erosion of constitutional freedom and traditional liberty. Legal and customary protections against unreasonable searches and seizures, invasion of privacy, selective enforcement of laws, and harsh and punitive statutes would all suffer.[129] Attempting to disarm Americans would likely result in widespread police corruption, increased wiretaps, and other evils associated with enforcement of laws against consensual possessory offenses,[130] thus encouraging public contempt for the law.

Of course, the problem of citizen noncompliance could be partially avoided by simply banning the production of new firearms or by adopting a Morton Grove-type "honor system"[131] to enforcement of a law against gun possession. These vanilla-pale approaches, however, would leave most of America's 200 million guns in private hands, hardly domestic disarmament.

4. "Nasty Things May Happen": Armed Resistance.--More alarming than simple noncompliance with gun prohibition is the apparent willingness of many gun owners to fight, if necessary, for their right to bear arms.[132] The rhetoric of resistance is not confined to gun magazines, but also appears in scholarly journals.[133](p.462)

How seriously should the possibility of a civil war over gun prohibition be taken? The emotions over gun control today run extremely high. The "militia movement" that is much in the news these days is a reaction, in part, to gun control legislation.[134]

The number of those currently involved with citizen militias is at least in the tens of thousands nationwide, and possibly higher.[135] Most mainstream gun owners, including most of the "hard core," do not currently belong to these militias. This is largely because many of the militias are motivated as much by other political concerns (some of them truly bizarre, such as United Nations invasion conspiracies) as they are by gun control legislation, and these concerns are not generally shared by mainstream gun owners.[136] Some analysts believe, however, that the militias are even now drawing an increasing number of mainstream gun owners to their ranks.[137] If the federal government actually attempted to disarm Americans, not only would many Americans (p.463)likely fight back, but the number of those who would do so could conceivably be in the millions.[138](p.464)

As the specter of myriad American civilians fighting their own government to retain their gun rights were not troubling enough, there is evidence that at least some members of the armed forces would join the resistance. Many members of the armed services are gun culture types: they own firearms themselves, are convinced that Americans have the inalienable right to keep and bear arms, and they take an oath to defend the Constitution from every enemy, "foreign or domestic."[139] It is therefore likely that at least some in the military would not simply look the other way as the government attempted to enforce a policy of domestic disarmament.[140] A master's thesis studying the attitudes of American soldiers found that the large majority would not obey orders to fire on citizens who resisted gun confiscation.[141]

Contrasting these hard-core members of the gun culture with the advocates of prohibitionist gun legislation "who take bourgeois Europe as a model of a civilized society," Bruce-Briggs describes the former as

a group of people who do not tend to be especially articulate or literate, and whose world view is rarely expressed in print. Their model is that of the independent frontiersman who takes care of himself and his family with no interference from the state. They are "conservative" in the sense that they cling to America's unique pre-modern tradition--a non-feudal society with a sort of medieval liberty writ large for everyman. To these people, "sociological" is an epithet. Life is tough and competitive. Manhood means responsibility and caring for your own.

This hard-core group is probably very small, not more than a few million people, but it is a dangerous group to cross. From the point of view of a right-wing threat to internal security, these are perhaps the people who should be disarmed (p.465)first, but in practice they will be the last. As they say, to a man, "I'll bury my guns in the wall first." They ask, because they do not understand the other side, "Why do these people want to disarm us?" They consider themselves no threat to anyone; they are not criminals, not revolutionaries. But slowly, as they become politicized, they find an analysis that fits the phenomenon they experience: Someone fears their having guns, someone is afraid of their defending their families, property, and liberty. Nasty things may happen if these people begin to feel that they are cornered.[142]

"Nasty things" would likely ensue if the government attempted to enact and enforce gun prohibition. It was, after all, government attempts to confiscate "weapons of war" at Lexington and Concord that sparked the American Revolution[143] and the Texan rebellion against Mexico.[144] If it is true, as Bruce-Briggs implies, that millions rather than mere thousands of gun owners would be involved in fighting for their gun rights, then those who foresee a speedy quashing of this rebellion are probably deluding themselves.

Many people will be incredulous, even scandalized, over the proposition that many gun owners would resist attempted disarmament. Nevertheless, a number of notable constitutional scholars have shown that this type of disobedience is not only characteristically American, but that the Second Amendment's very reason for being is to enable American citizens to resist even their own government when their civil liberties are thus assailed.[145] It was the Framers of the Constitution and the revolutionary generation, and not the 1990s "Militia of Montana," who first insisted that the only reason a government would seek to disarm its population would be to enslave it.[146](p.466)

Virtually all legal scholarship on the Second Amendment from the last two decades acknowledges as much. Sanford Levinson so concluded in his famous Yale Law Journal article, The Embarrassing Second Amendment.[147] Levinson is not alone. Constitutional scholarship on the Second Amendment shows that one of the major reasons the Amendment was included in the Bill of Rights was to ensure the perpetuation of a force of armed citizens that could resist domestic tyranny when--but only when--it was absolutely necessary.[148](p.467)

Although most gun owners have not, of course, kept up with the Yale Law Journal, the ideology of forceful resistance to a gun-banning central government has been transmitted--from American gun owners in 1776 to American gun owners in 1997--quite effectively. Many gun owners believe that it would be perfectly legitimate--even morally required--to oppose gun prohibition by force of arms.[149] When we celebrate the Fourth of July, we remember that America was, after all, born through what the British perceived as "insurrection"; our Founders enjoined us never to lose that "spirit of resistance."[150] Millions of American gun owners, rightly or wrongly, still heed that message.

Predictably, proponents of gun control have responded bitterly that the conclusion of Levinson and other legal scholars represents nothing less than an "insurrectionist" interpretation of the Second Amendment.[151] Such a criticism ignores the important distinction between (p.468)unjustifiable resistance--insurrection--and justifiable resistance to government tyranny--a right that Americans exercised in the Revolution and one that the Founders declared to be an inalienable right.[152] To criticize the notion of rebellion and resistance per se is to criticize the theory of government embodied in the Declaration of Independence.[153]

"It would be useful," Bruce-Briggs concludes, "if some of the mindless passion, on both sides, could be drained out of the gun control issue."[154] On the communitarian side, Etzioni and others must ask themselves the following question: If the passage of the Brady Act[155] and the assault weapon ban[156] have caused such alarm and have triggered plans of resistance in the minds of many otherwise law-abiding gun owners, what is bound to happen if such an extreme proposal as domestic disarmament is made the law of the land? The worst case scenario would be a civil war, while the best case scenario would be a massive conflict and breakdown of law and order, reminiscent of the era of alcohol prohibition. In neither case would a more harmonious, (p.469)unified, communitarian society result. Moreover, it is not only law-abiding citizens who would not give up their guns, criminals would not either.

B. Country, Court, and the Crisis of Legitimacy

Prohibitionist solutions, whether they involve the banning of alcohol, firearms, gold, or other goods, serve in the long run to diminish "legitimacy"--the popular sense that the government exists to serve rational, pragmatic ends and, therefore, ought to be obeyed. Historian William Marina, who has written extensively on the American Revolution, has argued that successful firearms prohibition will never become a reality in the United States and is doomed to fail internationally as well.[157]

With the benefit of historical perspective, Marina made two points, both stemming from his study of resistance and revolution in the modern world. The first was an empirical observation about repressive regimes: Oppressive states are inherently unstable, and most of them eventually give way to populist forces of reform or revolution.[158] This is especially true in the modern era, which may aptly be dubbed the "era of revolution." (Marina made these predictions in the wake of Watergate and Vietnam, long before the collapse of the Soviet Empire.)[159] When states become tyrannical they lose legitimacy, and hence their legitimate authority to govern. Marina focused on the American Revolution as one of the clearest examples of what happens when there is a "crisis of legitimacy" that pits the people against their government.[160]

The American Revolution was the product of what Marina called the "Country" ideology, which stresses popular sovereignty and republicanism, as opposed to the "Court," or centralized, statist ideology.[161] "Here," noted Marina, "the authority emanated from the people upward, versus the standing army, where authority rested with the state. (p.470)Participation in the people's militia was thus an integral aspect of citizenship in what was perceived as a republican culture."[162]

America, partly by design, has avoided the most intense country versus court conflicts. The national capital was deliberately chosen to be far removed from the finance and trade centers (New York and Philadelphia at the time).[163] Yet it is still true that Washington, D.C., is in many ways quite different from the rest of the United States. A demographic survey of various American cities focused on what their inhabitants liked to do for fun: was a good time to them a night at the ballet, cooking a gourmet meal, a morning of Bible reading, or a weekend of hunting?[164] The survey results revealed that the most aberrational city was Washington, D.C.; its inhabitants had less in common with the "average American" than those of any other American city.[165] (Among other things, the percentage of hunters was very low.)[166] Thus, it should not be particularly surprising that a think tank located in the court city, a think tank that has the Executive's ear, should simply fail to understand how intense the resistance to its proposals would be out in the "country," nor would it be surprising for the court to fail to foresee that an attempt to disarm the populace, and further centralize armed force under court control, could literally start a civil war. That was how the English Civil War was started.[167]

Just as it is predictable for the court to underestimate the intensity of the country's likely resistance to court's demands for disarmament, it is also predictable that the court will overestimate its ability to control the country.[168] (This miscalculation also contributed to the English Civil War.) This realization leads to Marina's second historical point: Powerful states have rarely been able to control revolutions in arms technology,[169] nor have they been able, historically, to prevent the people from obtaining that technology, especially when it comes to small arms.[170] Even modern superpowers have been largely incapable (p.471)of disarming or vanquishing targeted armed populations.[171] Support for Marina's thesis can be seen in the inability of powerful modern states to defeat the North Vietnamese and Viet Cong, the Irish Republican Army, the Afghan mujahedin, and the Somali militias.

Marina analyzed the impotence of powerful states not only in terms of the inherent lack of military flexibility created by reliance on superweapons, but also in terms of the eventual societal decline that "imperial" nations have historically suffered (among which he numbers America).[172] The Founders were also aware that, historically, nations that became empires became both morally and politically corrupt, and, therefore, impotent. Thus, the Founders consciously sought to establish a general government of specified, limited powers that would not excessively involve itself in foreign entanglements, and whose authority emanated upward from the states.[173] Nevertheless, this vision did not prevent America from passing into its own imperial phase, just as the Roman Republic had done. This drift toward empire on the part of America has only led, once again, to a global crisis of legitimacy.[174] Witness, for example, the impotence of the United Nations in the former Yugoslavia and elsewhere throughout the world where various states have reconfigured themselves or asserted their former sovereignty.[175]

Stagnation created by the drift toward empire has resulted in what Marina has called "the emergence of a new paradigm. In many ways this paradigm is an updating of the 'Country' ideology, yet bridges a spectrum from left to right and includes many who would view themselves as nonpolitical ...."[176] This new paradigm, with its attendant ideas of people participation, decentralization, smallness of scale, and obtaining appropriate intermediate technology such as small arms, may lead adherents to bypass or ignore the government, "despite the efforts of imperial centralizers to stop the process."[177] (p.472)Thus, "the larger philosophical outlook underlying the Country interpretation of the Second Amendment takes on a new meaning and relevance. In today's international context, any such effort at arms prohibition by the state against the individual, in violation of the Second Amendment, is bound to fail."[178]

Failure to heed the argument that gun prohibition is futile "is apt to have far more serious repercussions on the legitimacy of those seeking prohibition than upon the actions or existence of those whose lives they seek to regulate."[179] Moreover, a return to "decentralization" and "smallness of scale" in America and elsewhere may be inevitable.[180] Such a return to a "republican culture," as shall be argued below, is the most plausible cure for gun-related violence in America.

Solutions to America's plague of violence are most likely to be found if all Americans, whatever their feelings about guns, heed the words of Isaiah: "Let us reason together."[181] Etzioni and the communitarians do attempt to reason with the public concerning the types of rights beloved in the "court" at Washington. Although the communitarian agenda for selective censorship,[182] drug testing,[183] and the like[184] may not comport with strict construction of the Constitution, there is a recognition that freedom of speech and privacy are tremendously important, and that First and Fourth Amendment rights should be infringed only when there is a compelling reason to do so. Etzioni formulates a four-part test for when rights may be infringed: (1) clear and present danger, (2) no alternative way to proceed, (3) "adjustments" should be as limited as possible, and (4) infringing policies should minimize harmful side effects.[185] His respectful hesitancy toward infringing rights of journalists vanishes, however, when the object of regulation becomes the one-half of American households that own guns. Consider the Communitarian Network's "accommodation" of gun owners: rendering collectors' guns "inoperative" and limiting hunters to long guns "without sights or powerful bullets, making the event much more sporting."[186](p.473)

There is an important ethical case to be made against hunting, but that case is properly made within the context of animal rights (a cause for which Etzioni's book displays absolutely no sympathy),[187] and vegetarianism. While dismissing the idea that hunting could be a true "sport," Etzioni displays a truly cosmopolitan ignorance about hunting, and about the interests of animals. The statement about denying hunters "powerful bullets" obviously comes from someone who has never thought about hunting in a serious manner. If hunting is to be tolerated, it is desirable that the hunted be killed as painlessly and rapidly as possible. Accordingly, hunters today are trained only to take a shot that they are confident will bring the animal down almost instantly (typically, a shot to the heart or the lungs). No ethical hunter would fire at the general mass of a deer, hoping to hit a leg or some nonvital organ. To the extent that hunters are deprived of "powerful bullets" (that is, bullets that have been found suitable for bringing the animal down) or deprived of scopes (which make the shot more precise), hunters would use inferior, less capable bullets, and would shoot them less accurately. As a result, many animals would be wounded rather than killed. Fleeing, some would escape, only to die a lingering, painful death after days or weeks, as a result of infection or other complication from the bullet wound. Persons who have strong ethical objections to hunting per se, but who also believe that hunting, to the extent allowed, should be done as humanely as possible, should prefer that animals be hunted with powerful and accurate rifles, rather than with other weapons, such as bows or inferior firearms, which risk causing an especially slow and agonizing death.

Etzioni's snide accommodation of gun collectors--by allowing them to keep their guns if they employ his "favorite" technique of pouring "cement in the barrel"[188] --is likewise explainable only as a product of condescending ignorance. Most automobile collectors would find little value in a car that was rendered inoperable, as by pouring cement in the piston cylinders. Even if a collected car spends all its time in a garage, or a collected gun resides in a wall-mounted display case, it is still important to the collector to know that his object could serve its purpose. Rendering the object inoperable--especially through internal destruction such as cementing vital parts--also destroys most of the economic value of the collected object. Many law-abiding (p.474)gun collectors would lose tens of thousands of dollars, in collections built up over decades, if Etzioni's scheme were enacted. One wonders if Etzioni has ever viewed a friend's gun collection, or has ever thought seriously about the real impact his gun confiscation proposal would have on the millions of good citizens who are gun collectors. Perhaps an argument could be made that gun collecting presents such a risk of harm to society that even licensed collectors with registered collections should be forced to destroy (by disabling) their collections. Etzioni has not made such an argument. He has simply sneered at the cretins whom he imagines compose the ranks of the nation's gun collectors and hunters.[189]

If Etzioni were H.L. Mencken, sneering at the booboisie beyond the Beltway or the Bos-Wash corridor would be understandable,[190] but Etzioni proclaims himself a communitarian, a man who wants to (in Richard Nixon's words) "bring us together."[191] The Americans who live more than half an hour from a Metroliner stop are hardly going to be persuaded to put down their guns by a man and movement that hold them in contempt and view them as cretins to be subjugated, rather than as fellow citizens with whom to begin a dialogue.[192]

C. Summary

If domestic disarmament became policy in this country, tens of millions of Americans would simply hide their guns from the authorities. The majority of these guns are now, and would remain, unregistered. Thus, the majority of firearms would remain in the hands of (p.475)their owners, or on the black market. Just as organized crime is able to smuggle tons of drugs into the country every year, it would be able to do the same with illicit firearms. Even if illegal imports could be entirely eliminated, guns are not particularly difficult to manufacture in a basement workshop with tools that can be obtained at a hardware store.[193]

The vigorous attempt to enforce domestic disarmament would entail systematic violations of fundamental rights enjoyed by American citizens. Even if it proved possible to catch and prosecute only a small fraction of the projected number of those who would refuse to comply with registration or relinquishment requirements, both the courts and the nation's jails would almost certainly be overloaded.[194] Attempted enforcement of domestic disarmament would also likely result in law enforcement oppression, corruption, resistance, or rebellion (depending upon the officer).[195] This, in turn, could very well lead to a breakdown in respect for the law and the institutions that make it.[196]

There is an alarming potential for violence that would result from a serious attempt to disarm Americans. Many Americans are already preparing to meet force with force should gun prohibition laws be passed. The size of the militia movement is sure to increase should it become clear that the federal government intended to embark upon the wholesale disarmament of its citizens.

Domestic disarmament could be a cure worse than the disease. It would therefore be preferable, as Bruce-Briggs suggests, to drain the "mindless passion" out of the gun control debate[197] and begin to discuss rationally what might realistically lead to a diminution of gun violence among a people that has historically been armed and will almost certainly remain so.(p.476)

III. Virtue and Community Militias

The Communitarian Network's platform argues that the Second Amendment does not protect an individual right to keep and bear arms, but rather only the existence of "community militias," which the Network equates with the National Guard.[198] For this assertion, Etzioni relies largely upon an essay by historian Lawrence Delbert Cress.[199] This reliance is appropriate, as Cress's article is one of the few historical pieces in the last twenty years written by an academic and published in a scholarly journal that concludes the Second Amendment is not an individual right.[200] Cress reasons that because the discussion surrounding the ratification of the Second Amendment focused mainly on the necessity of protecting the institution of the militia, a community rather than an individual right is guaranteed in the Second Amendment.[201]

This community-only view has serious problems. Because this view is exclusively propounded by gun control advocates who wish to remove the Second Amendment as an obstacle to gun control proposals, no community-rights theorist has explained what the Second Amendment does mean if it does not mean that people have a right to keep and bear arms. Glenn Reynolds and Don Kates actually do investigate what the Second Amendment means if it is not a guarantee of individual right.[202] They demonstrate that the nonindividual view of the Second Amendment is intellectually incoherent,[203] inconsistent with Article I of the Constitution,[204] and actually allows states (to the extent that they desire) to repeal all federal gun controls within their borders.[205]

The Communitarian Network claims to favor "community militias" rather than individual "gun slingers."[206] A problem arises when the Communitarian Network then advocates disarming private citizens and "much of the police force."[207] Whatever the community militia might be, it can hardly be a militia at all if its members are totally (p.477)disarmed. The Communitarian Network contends that the community militia is the National Guard. So because the Second Amendment guarantees some "right," do all Americans have a right to serve in the National Guard? If the community militia is not the National Guard, who will supply it with "arms," without which it could hardly be the "militia" referred to in the Second Amendment? If we are to be faithful to the Constitution, there must be some kind of militia; what should this militia look like?

To begin to answer these questions, which the Communitarian Network has failed to do, we turn to David C. Williams, who has devoted great attention to the militia's relevance in contemporary America.[208]

A. The Militia and Republicanism

Republicanism has gained many academic adherents in recent years, first among historians, and more recently in the law schools. The modern communitarian movement may even be viewed, at least in part, as an expression of the republican philosophy.[209]

In his Yale Law Journal article, entitled Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment,[210] Williams takes a "modern, republican" look at the Second Amendment.[211] He agrees with the communitarians that America has become a fragmented society and that a sense of the importance of civic duty, such as that manifested during the early days of the republic, needs to be restored among the American people.[212] "Republicanism appeals to many because it emphasizes community over separation and public dialogue over strict autonomy."[213] Thus, a "neorepublican" America would be one in which communitarian values would take hold among the American populace, leading away from the atomized society that the Communitarian Network and other advocates of the common good decry.

Williams acknowledges that true republics have citizen militias. Under republican theory, the militia(p.478)

constituted a forum in which state and society met and melded, and this combination offered some advantages for curbing corruption. If the evil of partiality touched a segment of the population, then the militia--constituted as an instrument of the state--could restrain any movement toward demagogic rebellion. But if the state became corrupt, then the militia--now constituted as "the people"--could resist despotism. Indeed, the line between state and people ideally disappeared in the militia, in that the militia members were both the rulers and the ruled.[214]

Furthermore, the militia "offered training in virtue, making citizens independent and self-sacrificing."[215] It also "allowed citizens to participate directly in their own self-government, not just through the process of representation, and it consigned to them ultimate control of the means of force."[216]

Thus, Williams understands that the right to arms as guaranteed by the Second Amendment is a reference to the right of the people themselves to act as a popular militia, not just to "have" a professional, select militia such as the National Guard. Nevertheless, he is not ready to say that community militias such as those that existed in the eighteenth century should be restored: "In republican theory, only a virtuous citizen militia can be entrusted with the means of force to resist state authority, but citizens will not be virtuous until they are already participating in policy making under a republican form of government."[217] This state of affairs, Williams argues, no longer exists in America.[218] American citizens are generally too preoccupied with self-interest and too far removed in their political thinking from the republicanism that reigned in eighteenth-century America.[219] They can no longer be trusted to be virtuous.[220] Furthermore, today's so-called (p.479)"militia" is not universal (though Williams admits that militia participation never was). Guns are owned by only a "slice" of the American populace,[221] and that segment of society cannot seriously be considered America's militia for a number of reasons, the chief of which is that "a modern militia would be a reflection of modern America--divided and driven by self-interest."[222] Because America has drifted from its republican moorings, the Second Amendment today is not only "embarrassing," it is "terrifying."[223] Thus, Williams concludes, because the militia does not exist, the Second Amendment poses no obstacle to current gun control laws.[224]

As a practical matter, gun ownership is not confined to a mere "slice" of the American population; guns are possessed in roughly half of all households.[225] As a matter of current constitutional policy, Williams's argument runs into one insurmountable obstacle: the language of the Second Amendment itself.[226] The Second Amendment does not say that "the militia" has a "right to keep and bear arms"; rather, "the people" have the right. The introductory, subordinate phrase of the Second Amendment ("A well regulated Militia, being necessary to the security of a free State") does not, grammatically, limit the scope of the right in the main clause ("the right of the people to keep and bear Arms, shall not be infringed"). Parsing the Second Amendment carefully can lead to no other result.[227](p.480)

Moreover, the Second Amendment right cannot be dependent on government action for its continued existence, any more than the First Amendment right to freedom of speech can be contingent on (p.481)the government's teaching people to read virtuous books. Fundamentally, the Founders saw rights, including the right to arms, as being recognized by the government rather than granted by the government.[228] The (justifiable) fear that the federal government would neglect militia training, and thereby increase the relative power of the federal standing army, was an important objection of the Anti-Federalists.[229] That Anti-Federalist predictions have come true today to a great degree is hardly an argument for eviscerating the Second Amendment (or any of the other checks on the federal government that the Anti-Federalists successfully demanded be added to the Constitution).

The grammatical result is also consistent with original intent. The natural right to arms had the purpose of facilitating resistance to both criminal governments and individual criminals. Against a lone criminal, an individual gun owner might use her firearm by herself, rather than as part of a militia. The subordinate clause of the Second Amendment was certainly never intended to abrogate the common law and natural right to self-defense against criminal attack.[230](p.482)

Moreover, Williams's proposals for current substitutes for the militia, designed to restore healthy republicanism, are problematic. Williams favors the creation of "militia surrogates"--universal national service, for example.[231] Yet, as Professor Akhil Amar points out, mandatory service in a federal standing army (or other enforced federal labor) is antithetical to the very notion of a local, state-based militia as a check on federal power.[232] In republican theory, one of the key "virtues" of the militiaman was his independence; he had his own means of support and was not dependent on or submissive to the government. He was wholly opposite to the federal conscript, who, under republican theory, by virtue of his submission to and dependence on the central government, was morally degraded.[233]

Williams does not dismiss the idea of a civilian militia as an ideal to someday be reinstituted. He specifically notes the role the militia historically played in the inculcation of public virtue and political participation, as well as in the preservation of liberty.[234] "Eventually," Williams concludes, "the people should reacquire direct control of the means of force, but only when the right structures offer them an opportunity for virtue."[235] In short, Williams takes the Constitution seriously. Unlike virtually every other person who reads the Second Amendment as not guaranteeing an individual right, he gives the Second Amendment a content that makes it meaningful.

Williams's article is not, however, without its weaknesses. First, it is not intuitively obvious that Americans in the 1990s are, in contrast to their 1790s forebears, unfit to possess arms. Americans of the 1990s are considerably less racist and sexist than their predecessors.[236] They have not only abolished slavery (present in twelve of the thirteen (p.483)states when the Constitution was ratified), but they have also extended full civil equality to persons of all races and both sexes. Such a broadly inclusive view of the community was unimaginable in the 1790s, and modern Americans deserve some credit for having had the virtue to achieve it.

The suggestion that changed circumstances allow one to ignore, rather than amend, a provision of the Constitution ought, at the very least, to be accompanied by compelling proof of dramatic changes in circumstances. Given that human nature remains relatively constant, it is far from proven that modern Americans are far less virtuous than Americans of two hundred or one hundred years ago.[237](p.484)

Ratification of the right to arms was not a single act from two hundred years ago. From Kentucky to Alaska, almost every state that has entered the Union has included a right to bear arms provision in its state constitution.[238] During the 1980s four states without that type of provision added one by popular vote,[239] one added the provision by (p.485)legislative action,[240] while Utah strengthened the language of an existing provision.[241] At the federal level, the Freedmen's Bureau Bill, the Civil Rights Acts passed by the Reconstruction Congress, and the Fourteenth Amendment (which, of course, was ratified by most states) were all intended, in part, to protect the individual right to arms from state infringement.[242] The Property Requisition Act of 1941 and the Firearm Owners' Protection Act of 1986 were enacted by Congress to protect the gun ownership rights of American citizens.[243] A "changed circumstances" argument negating the right to arms becomes particularly implausible when Congress, the states, and the American people have repeatedly affirmed and added additional protections to that right up through the present era.

Criticism that would cite the current militia movement as proof that modern Americans are, compared to their ancestors, too rebellious to be trusted with Second Amendment rights lacks historical support. The Second Amendment was proposed only three years after three counties in western Massachusetts had erupted against oppressive state taxes and heavy-handed sheriffs in "Shays' Rebellion."[244] (p.486)Three years after the Second Amendment was ratified, parts of Virginia (today, West Virginia) and western Pennsylvania revolted against high federal taxes on whiskey.[245] President Washington exercised his power to call forth the militia to suppress the Whiskey Rebellion, the local militia responded, and the insurrection was crushed.[246]

Despite some limitations, Williams does get to the heart of the primary question that the Second Amendment poses: what can be done to promote responsible gun ownership. As he recognizes, the militia, in its republican conception, was similar to the jury.[247] While the jury right was (and is) exercised by individuals (individual defendants claiming a right to a jury trial, or individual Americans claiming a right not to be excluded from a jury pool), the jury comes together as a collective body. This collective body is at once an instrument of state power (the criminal justice system) and at the same time a check on state power. Thus, for the same reasons that the Communitarian Network exalts service in the jury, the Communitarian Network ought to be looking for ways to encourage service in well-regulated militias. Domestic disarmament will obviously not build "a well-regulated militia" any more than getting rid of trial by jury would encourage responsible jury service.

If, on the other hand, Williams is correct that Americans have so little virtue that they cannot participate in communal institutions such as the militia,[248] then the argument can be made that modern Americans likewise lack the virtue to serve on juries, making decisions that involve life and death, millions of dollars, or decades of imprisonment. Yet who among even the most severe critics of the contemporary jury system would suggest that the constitutional right to a jury trial can simply be ignored due to changed circumstances?

The communitarians are correct that responsibilities should accompany rights, or as Williams frames the issue, the early republicans were correct in believing that public virtue is necessary if the republic is to survive with its liberties intact.[249] If, as the Founders intended, (p.487)the people were to remain armed, then it would also be necessary to instill in them the highest degree of virtue in order to minimize firearms misuse. How might public policy contribute to the rebirth of the kind of virtue and familiarity with firearms that the Founders believed necessary to an enduring republic? Is it possible to take the first steps toward the revitalization of the citizen militia?

B. Toward Well-Regulated Militias

Williams appears to be of two minds. On the one hand, he wants the American people to prove themselves largely virtuous before they should be trusted with arms. On the other hand, he acknowledges the truth of the Founders' belief that the historical militia "offered training in virtue, making citizens independent and self-sacrificing."[250] A good militia is not just an effect of public virtue, but a builder of virtue as well. Thus, it is appropriate to begin by considering policies that will eventually help citizens to be more virtuous and responsible with firearms.

1. What "A Well-Regulated Militia" Is Not.--Before we suggest how to progress toward a well-regulated militia, we should explain what a militia is not. Though the word "militia" likely evokes images of armed, camouflaged right-wingers who train in anticipation of fighting the troops of the "New World Order," this is not what is meant here. What is meant is a true citizen militia, as was common in the eighteenth and nineteenth centuries. The Supreme Court has stated that the militia is composed of "civilians primarily"[251] and that "all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States."[252]

As uniformed, armed bodies of government employees, sometimes subject to federal command, the modern National Guard and the modern police would both have been seen by the Founders as close cousins to the dreaded "standing army." To the Founders, "select militias" (comprising only a small fraction of "the people") and standing armies were thought to constitute the threat to liberty par excellence.[253] The same Congress that passed the Bill of Rights, including (p.488)the Second Amendment and its militia language, also passed the Uniform Militia Act of 1792.[254] That Act enrolled all able-bodied, white males between the ages of eighteen and forty-five in the militia and required them to furnish their own firearms, ammunition, and gunpowder.[255] The modern federal National Guard was specifically raised under Congress's power to "raise and support Armies,"[256] not under its power to "[p]rovide for organizing, arming, and disciplining, the Militia."[257] The National Guard's weapons plainly cannot be the arms protected by the Second Amendment, because Guard weapons are owned by the federal government.[258] To call the National Guard the militia of the Second Amendment is an Orwellian inversion of meaning.

We should also explain what "well-regulated" is not. The Second Amendment's phrase "a well-regulated militia" is sometimes said to mean something akin to "a militia subject to large amounts of bureaucratic regulation."[259] Hence, gun controls not amounting to prohibition would be permissible restrictions on the well-regulated militia.

The colonial political usage of the phrase "well-regulated militia" also suggests that the word "regulated" was not an invitation to bureaucracy. Before independence was even declared, Josiah Quincy, Jr., had argued for the necessity of "a well regulated militia composed (p.489)of the freeholders, citizen and husbandman, who take up arms to preserve their property as individuals, and their rights as freemen."[260]

We should also note the particular meaning that the word "regulated" has in relation to firearms. In firearms parlance, "regulating" a gun has the same meaning today that it did centuries ago: adjusting the weapon so that successive shots hit as close as possible together. If the objective is achieved, the gun is "well-regulated." For example, an article that appeared in Gun Digest concerning double-barreled rifles notes: "The well-regulated double [rifle] shoots closely enough with both barrels to hit an animal at normal ranges."[261](p.490)

Thus, a well-regulated militia would be an effective citizen militia whose members hit their targets.[262] Government efforts to make the militia well-regulated would seem permissible, whereas regulations that did not promote militia quality would be suspect. Let us now examine some particular programs that could promote a well-regulated militia.

2. The Civilian Marksmanship Program.--One easy starting point for the promotion of a well-regulated militia--because it exists already--is the Civilian Marksmanship program. The Director of Civilian Marksmanship program (DCM), created through the efforts of Theodore Roosevelt, is the federal government's attempt to educate the public about gun safety and marksmanship.[263]

DCM training takes place according to congressional directive and receives federal financial and resource support.[264] Most training is conducted at gun clubs that have been certified as DCM participants.[265] The DCM training program involves rifles only.[266]

One purpose of the program is to provide the armed forces with recruits that have firearms training upon enlistment.[267] Nevertheless, the fraction of the civilian population (including the DCM population) that joins the military is small enough that the DCM may not be cost-effective from a purely military perspective. Enhancing the standing army, however, is not the only purpose of the DCM.

The DCM serves another purpose. Because the American people constitute, as the Supreme Court states, "the reserved military force or reserve militia of the United States,"[268] the DCM is one of the key ways (p.491)in which the federal government carries out Article I, Section 8, Clause 16 of the Constitution, which authorizes Congress "[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States."[269] Of course, other benefits are reaped from the program as well: Americans learn how to handle firearms safely and competently, and the program is an implicit affirmation of every American's responsibility to further the common good.

The real opposition to the DCM comes not from deficit hawks, but from the most determined congressional allies of the antigun lobbies.[270] From their viewpoint, the DCM does send the wrong message--civilians are not only entitled, but they are encouraged to become proficient users of rifles such as the M-1 Garand.[271] From the viewpoint of persons (including communitarians) that want a genuine well-regulated militia, however, the DCM sends the message that American gun owners should be educated in the safe and responsible use of firearms and in their duty to assist in the common defense.[272]

3. Other Marksmanship and Safety Training Programs.--There are many potential marksmanship programs that could be implemented to extend responsible marksmanship training far beyond the federal DCM program. With the exception of gun prohibitionists, most parties to the gun debate would agree that the better trained gun owners are, the better off society is. Individuals who practice shooting with their friends at target ranges are the most likely to be influenced by social models of responsible gun use. City dwellers, who may buy a gun for self-protection and never learn how to fire it safely, could particularly benefit from marksmanship and safety training programs.[273](p.492)

The simplest way to promote marksmanship programs is to remove illogical legal impediments to such programs. In New York State, for example, a father may not take his eleven-year-old son to a shooting range and allow the son to shoot a rifle, even under continuous parental supervision.[274] Such laws should be repealed.

Target shooting can promote character development in a city or school. It emphasizes mental discipline, is nonsexist, and is a lifetime sport.[275] Moreover, it is safe. Target shooting has a lower injury rate than almost any other sport; fights between competitors are nonexistent,[276] and there is no known incident of one competitor harming another in a sanctioned match.[277]

Regulations that serve solely to harass adult target shooters have no place in a rational gun control policy. The less target shooting gun owners are allowed, the less trained and more dangerous they will be. Zoning regulations outlawing indoor target ranges within a particular distance of a school or a church are irrational; they simply make the statement that guns are bad and should not exist near good institutions.

Likewise, there is no social benefit from laws like that in New York City, where a licensed target shooter cannot bring a guest to a shooting range to fire even a single bullet from the licensed shooter's gun unless the prospective guest obtains her own expensive gun permit.[278] Such a law is not a rational policy of gun control. It is bureaucratic gun prohibition, enacted simply to make a statement that the (p.493)government heartily disapproves of anyone other than itself having guns.

Another simple step to encourage responsible gun use is to better allocate funds the government already spends on civilian gun use. In 1937, Congress enacted the Federal Aid in Wildlife Restoration Act, more commonly known as the Pittman-Robertson Act.[279] The Act, initiated by sportsmen, levies a federal excise tax on the manufacturers, producers, or importers of firearms, ammunition, and archery gear.[280] States receive part of the revenue based upon the ratio their populations bear to the entire United States population.[281] Hunting and associated activities may receive the lion's share.[282] Putting more funds into public shooting ranges and less into hunting would make responsible gun training available and convenient for large numbers of urban gun owners.

Encouraging active sports (as opposed to mere spectating) in which participants are not encouraged to knock down or harm each other, and in which mental self-control is emphasized, would seem to be an ideal communitarian program.

Beyond merely allowing sports programs, counties and states can play a more affirmative role in promoting civic virtue relating to firearms. After all, because the militia is largely a local, rather than federal, force, counties and states bear a direct responsibility for militia oversight. Some county governments have declared by resolution the existence of civilian militias within their jurisdictions, albeit under the present unhappy conditions in which such resolutions are passed in response to federal gun control legislation.[283] There is no reason, therefore, that these local governments, or other local governments, (p.494)could not create firearms training programs similar to that of the DCM. Local government oversight would also help to ensure that militias do not contain any unsavory elements.

Another way for both the state and the federal governments to further civilian participation in the reserve militia might be to give tax or tuition credits to those who take firearms training courses from an accredited gun club, and subsequently provide evidence that they have, at periodic intervals, qualified on the gun range, much as security guards and the police do. Perhaps state governments could also provide financial incentives to colleges and universities that offer gun training courses as physical education electives.

4. Using the Militia to Restore Order.--It is time for a serious debate on whether police forces should be supplemented (but not supplanted) by the civilian militia. The police should maintain their role as protectors of the public, but obviously they cannot be everywhere at once.

In addition to historical precedent, modern experience suggests that the militia can make an important contribution to public safety. In conditions of civil disaster or disorder, armed citizens have played an important role in protecting innocent lives and preserving property. Such was the case in the aftermath of disasters such as Hurricane Andrew[284] and the Los Angeles riots,[285] when the police or National Guard were either unavailable or could not respond effectively. A civilian militia trained in firearms and disaster-readiness skills could (p.495)serve even better.[286] Indeed, riot suppression was frequently performed by the militia in the eighteenth and nineteenth centuries,[287] and is one of the constitutional purposes for which the federal government is authorized to use the militia.[288]

Although Etzioni would be horrified, Glenn Harlan Reynolds uses communitarian (albeit not Communitarian Network) reasoning to suggest that the crime-reductive effect of using the militia could be dramatic:

In the days prior to the invention of professional police forces in the early part of the nineteenth century, responding to crime was not seen as vigilantism, but as a civic duty--one backed by sanctions. The cry of "Stop Thief!" was not simply a cartoon cliche, but had the legal consequence of compelling all within its hearing to aid in arresting a thief. Individuals took turns on the "watch and ward," patrolling cities and towns at night. Everyone was seen as having a real stake in the maintenance of public order.

Today, with the increasing professionalization of law enforcement, the stock phrase is not "Stop Thief!" but "Don't get involved." People, often encouraged by law enforcement professionals possessing a natural desire to protect their professional turf, have followed that advice with a vengeance.... Reversing this trend would probably do more to address our crime problem than either compulsory handgun licensing, or anti-assault weapon legislation.

Of course, unlike those legislative options it would require work from citizens, and from politicians, and that may be my suggestion's biggest flaw. I have no doubt that if all able-bodied citizens were required to put in a few days per year walking the streets of their neighborhoods, crime would drop substantially. Citizens could be called together for training and equipment inspection ("mustered") and could be required to provide themselves with the necessary equipment, (p.496)whether that included firearms or not. This would produce direct results--in terms of law enforcement on the streets--light-years beyond current proposals to add additional professional police, and at far lower cost. However, I wonder whether politicians will be willing to endorse such a requirement, in a society that struggles to get people to show up for jury duty.

This difficulty in securing public service is one reason why the militia system initially declined. Everyone wants to be a free rider, and I have no illusions about the enthusiasm of the average citizen for tramping about the streets in midwinter in search of crime. But the burden is not that great, and the statutory authority for imposing it is already on the books, both at the state and federal levels ....

....

We have spent the last hundred years or so expecting steadily less from citizens in terms of public involvement and citizen responsibilities. Not surprisingly, most citizens have managed to live down to these expectations. Instead of trying to find new ways to protect people, and society, from irresponsibility through regulation, perhaps it is time to start expecting more from people: more involvement, more responsibility, more simple goodness. We might find that people will live up to these expectations, as they have lived down to the current ones. The framers of our constitutions, at both the state and federal levels, certainly thought so, and the state of our society today suggests that they may have known something that we have forgotten.[289]

Were it not for Etzioni and the Communitarian Network's antipathy toward firearms, Reynolds's militia proposal might be considered mainstream communitarianism. For example, in a book of communitarian essays edited by Etzioni, each of the first three essays provides (unintended) support for Reynolds's idea.[290] Discussing jury service, Etzioni warns that citizens cannot expect the right to a jury trial if they are not themselves willing to undertake the responsibility of service on a jury.[291] It is impracticable, and morally indefensible, Etzioni argues, for persons to claim benefits from communal services but not to contribute (p.497)to them.[292] This point is certainly correct, and it applies just as much to public safety as to civil dispute resolution. As communitarian author Thomas Spragens put it: "[D]emocratic citizens should not perceive themselves or behave as mere passive recipients of government protection ...."[293] The more that public safety is seen as a free good, provided exclusively by uniformed government employees, the less public safety will exist in the long run. In the same vein, Michael Walzer details how "liberalism is plagued by free-rider problems, by people who continue to enjoy the benefits of membership and identity while no longer participating in the activities that produce these benefits."[294] Communitarians are great fans of community policing,[295] but simply redeploying professional safety officers misses the larger point of getting the general public involved in public safety in some more significant way than having a good relationship with "Officer Friendly."

There has already been some movement in the direction suggested by Reynolds. "Sheriff Joe" Arpaio of Maricopa County, Arizona, for example, has supplemented his professional officers with deputized citizen patrols.[296] The 2500 members of his posse have each received 130 hours of firearms training; about a third have bought their own guns.[297] The posse members serve warrants, patrol malls and streets, and track down deadbeat parents.[298] Former Sheriff Richard Mack of Graham County, Arizona, unsurprisingly, organized a local militia.[299] In Lucas County (Toledo), Ohio (not usually considered a hotbed of Second Amendment ideology), several hundred unpaid citizens have been designated "special deputies."[300] These (p.498)special deputies carry guns and badges.[301] In Washington, D.C., Maurice Turner, while chief of the police department, enrolled volunteers in a training program identical to training for new police officers.[302] At the end of the training program, these unpaid volunteers would be issued badges and guns.[303] On graduation day for the first set of volunteers, however, the program was terminated by the Washington, D.C., City Council.[304]

Communitarian scholar Rogers M. Smith, considering the possibilities for national service, notes the history of the militia in the eighteenth and nineteenth centuries as a forum for community service.[305] He also notes that militia units of that period often fostered racial and sexual hierarchies, such as by excluding freed slaves from militia service.[306] Certainly one cornerstone of twenty-first century state and local supervision of militias should be to ensure that they are nondiscriminatory.

This Article does not suggest details for how such a militia might be trained and what its precise duties would be. That task is better left to other scholars who have considered the topic. Robert Cottrol and Ray Diamond, for example, have presented a detailed proposal for reviving the militia in inner-city America--the area where crime is highest and where uniformed police forces have failed most dismally to provide adequate public safety.[307]

Similarly, this Article does not address the pragmatic objection of persons who object in principle to allowing citizens a role in law enforcement under the theory that any militia will be necessarily so inept, hot-tempered, or otherwise unfit that it will endanger, rather than enhance, public safety. The empirical issue will be answered in time, as individual jurisdictions implement variations of the policies of "Sheriff Joe" and former Chief Turner.(p.499)

For now, it is simply suggested that considering how to revive the militia is the most appropriate policy, both for those who consider themselves faithful adherents to the Constitution and for those who genuinely embrace communitarian values. Not only would a revived militia once again play a role in the defense of local and national communities, but its natural political dimension, as David C. Williams has noted, would engender in its members a sense of social and political responsibility.[308] State and society could once again meld into a symbiotic, "neorepublican" political order that avoids the current polarization between the largely inaccessible "rulers" and the largely disaffected "ruled."

5. Safety Education in Schools.--Assume, arguendo, that the above scenario is too far-fetched: that the United States will never again need the services of a civilian militia because there will never be any more riots, hurricanes, or other disasters on American soil; that professional forces are fully adequate for the security of the country against domestic crime and foreign invasion; that no government--even hundreds of years from now--could possibly tyrannize the citizenry; and that a return to the republicanism of the eighteenth century will never be realistic because twentieth- (or twenty- first-) century Americans are hopelessly morally inferior to their revolutionary ancestors. Even assuming this absurd scenario, training as many Americans as possible in the safe use of firearms is still in the interest of the American community.

The absence of a gun education policy in a country with over 200 million guns[309] is foolish. Many minors now have and will continue to have easy access to both handguns and long guns. Neither new laws nor wishful thinking will change the situation.

The power to set curricula lies with local, largely autonomous, school boards. Unfortunately, school boards in the nation's urban areas--where an unfortunate mix of gun crime and political correctness abounds--are the least likely to mandate gun education in the schools, while those in rural areas are the most likely to do so, and often do. Consistency demands that if it is wise to educate kids about the potential threat to life that unsafe sex poses, then we should, at the very least, work to maintain the decades-long trend of decline in the rate of gun accidents involving children.[310](p.500)

Gun education need not even involve the handling or firing of guns. The basic rules of gun safety can be communicated effectively by the written or spoken word. (This might be more advisable in some urban settings.) Because about eighty-four percent of accidental shootings involve the violation of basic safety rules, safety education addresses the vast majority of gun accidents.[311] Owners of guns involved in accidental deaths of children are unlikely to have received safety training.[312]

Groups such as the Boy Scouts of America, 4-H, the American Camping Association, and the NRA have long instructed children in the safe use of sporting arms. One successful effort to promote safety training for all children is the NRA's "Eddie Eagle" Elementary School Gun Safety Education Program.[313] The Eddie Eagle program offers curricula for children in grades K-1, 2-3, and 4-6, and uses teacher-tested materials, including an animated video, cartoon workbooks, and fun safety activities.[314] The hero, Eddie Eagle, teaches a simple safety lesson: "If you see a gun: Stop! Don't Touch. Leave the Area. Tell an Adult."[315]

Eddie Eagle includes no political content, no statements about the Second Amendment, and nothing promoting the sporting use of guns.[316] The program and its creator, Marion Hammer, won the 1993 Outstanding Community Service Award from the National Safety Council.[317] As of January 1996, Eddie Eagle had reached more than 7 million children.[318] Unfortunately, however, some persons in positions of authority over school safety programs have refused to allow (p.501)Eddie Eagle to be used in their schools, because they disagree with the NRA's position on policy questions.[319]

6. Virtue Is Good.--While we have listed various virtue-promoting programs that relate directly to community-minded, responsible firearms use, it should be acknowledged that responsible attitudes toward firearms depend ultimately upon a citizenry that is responsible about much more than firearms. This Article is not the place for a discussion of the many programs that have been suggested to promote family, community, and individual responsibility. It should be noted, however, that in addition to the other benefits flowing from these programs, a reduction in firearms injuries might be one important result.

It should also be kept in mind that disarming the populace could promote civic disorder. The revolutionary generation had read Sir Thomas More's The Utopia,[320] which stated that when people relied on uniformed forces for their protection, rather than defending themselves and their nation, the people's character was corrupted.[321] Sir Thomas More thought that the introduction of a standing army had caused moral decline in France, Rome, Carthage, and Syria.[322] The Continental Congress compared Americans, "trained to arms from their infancy and animated by love of liberty," with the "debauched," dissipated, and disarmed British.[323]

In the cities with severe gun control--New York, Washington, Chicago, or London--citizens have retreated into a personal security shell; they rarely come to the aid of their fellow citizens who are being attacked by criminals.[324] The predictions of More seem vindicated--(p.502)when a people cannot protect themselves, civic virtue declines. Psychologists have noted the phenomenon of "diffusion of responsibility"[325] --if several bystanders witness an emergency, they are less likely to respond than if only one person witnesses the accident.[326] If the police are official monopolists of public safety and if citizens are told that they are too clumsy and unstable to be trusted with guns, then citizens will naturally develop a "don't get involved" attitude toward public safety.

The Communitarian Agenda rightly emphasizes the responsibility of people to take care of their communities, rather than relying on anonymous third parties to do so.[327] Americans are already much more likely to join and to contribute unpaid labor to voluntary organizations than are the people of other democratic nations where the government is expected to provide most of the necessities of life.[328] Community self-help is important not just because a given task can usually be accomplished more efficiently with local volunteers than with a federal program, but, more fundamentally, because exclusive reliance on external assistance weakens the cohesion and the virtue of the community.

IV. Guns and Public Safety

The presumption of Domestic Disarmament is that if there were fewer weapons there would be less violence.[329] As opposed to some advocates of gun control, who merely want to disarm particularly dangerous types of persons, the Communitarian Network apparently believes that a reduction (or better yet, a complete elimination) in the number of firearms among the population as a whole would necessarily lead to a major reduction in violence.[330] Less guns, less gun violence. (p.503)This theory is known as the "weapons-violence hypothesis"--where there are more weapons, there will be more violence.[331]

The problem with the weapons-violence hypothesis is that it is readily disproven. If the only or main variable were guns, then Switzerland should be one of the most violent nations on earth, because its militia system requires nearly every household to keep a fully automatic firearm and a store of ammunition.[332] Furthermore, Switzerland has, by European standards, very permissive handgun laws, laws that are less restrictive than those of many American states.[333] Swiss citizens can buy anything from small handguns to antiaircraft rockets and antitank weapons with less trouble than a New Yorker can get a permit to install a new sink.[334] Awash in guns, Switzerland is one of the least violent countries in the world, far less violent than the United Kingdom, Germany, or other European nations with severe gun controls or prohibitions.[335]

If the weapons-violence hypothesis were true, there would be a higher level of violence in America's rural areas, where a disproportionate number of America's guns are owned.[336] In fact, the level of gun-related violence in those regions is considerably lower than in urban areas, where there are fewer guns and more gun control.[337] The per capita rate of firearms deaths is far lower in rural areas, even though urban areas have the advantage of trauma centers within a few miles (at most) of the site of any firearms injury, a high density of hospitals and ambulances, as well as much higher police density to prevent shootings in the first place.[338]

The facts suggest that cultural or socioeconomic variables figure much more heavily into the violence phenomenon than does access to firearms. The relatively low incidence of violence that marks both (p.504)armed Switzerland and the several largely disarmed nations touted by gun control advocates is due mainly to internal social controls that restrain citizens from committing violent acts against their neighbors.[339] Japan, for example, has one of the most homogeneous and law-abiding populations in the world, unlike America.[340] Also unlike America, Japan is one of the most anti-individualist nations on earth, a fact that results in a political system most Americans would consider oppressive.[341] The low level of violence in Japan is not primarily due to austere gun control laws, but to internalized moral restraints that have marked that society for centuries.[342] Indeed, in most of the countries touted by American gun prohibitionists as models, armed-violence rates were far lower at the turn of the century, when the countries had almost no gun laws, than at the end of this century, when increased gun controls have proven a poor substitute for self-control and social control.[343]

The Communitarian Network's hypothesis is that individuals (gun owners) must sacrifice their (supposed) rights for the greater good of public safety.[344] A significant body of evidence suggests, however, that the Communitarian Network may have the facts backwards: gun ownership may make a positive impact on public safety and may benefit all persons, not just gun owners. In other words, one of the communitarian objectives--enhancement of public safety through responsible actions that benefit the entire community, not just an individual--is already in place through the mechanism of individual gun ownership.

There is copious evidence that a significant number of crimes are deterred every year by gun-wielding Americans. One of the first measurable pieces of evidence that criminals are deterred by the mere perception that potential victims may be armed dates back to the late 1960s, when the Orlando Police Department sponsored firearms safety training for women.[345] The police instituted this program when it became evident that many women were arming themselves in response to a dramatic increase in sexual assaults in the Orlando area in (p.505)1966.[346] The year following the well-publicized safety training program witnessed an 88% drop in the number of rapes in Orlando.[347] As Gary Kleck and David Bordua note: "It cannot be claimed that this was merely part of a general downward trend in rape, since the national rate was increasing at the time. No other U.S. city with a population over 100,000 experienced so large a percentage decrease in the number of rapes from 1966 to 1967 ...."[348] Furthermore, that same year, rape increased by 5% in Florida and by 7% on the national level.[349]

According to Kleck and Bordua, the gun training program "affected the behavior of potential rapists primarily because it served to inform or remind them of widespread gun ownership among women, and thereby increased the perceived riskiness of sexual assaults."[350] The rape rate, after plummeting, did increase during the next five years, but this may be because the safety training courses no longer received the same degree of media attention as when first initiated.[351] Nonetheless, at the end of that five year period, the Orlando rape rate was still 13% below the 1966 level, when the classes were first publicized.[352] The rate of sexual assault increased 96.1% in Florida and 64% nationwide during that same five-year period.[353] It is also interesting that rape in the area immediately surrounding Orlando increased by 308% during the same period.[354]

Having heard about the Orlando experience, Detroit Chief of Police Bill Stephens began a similar program in 1967, in the face of an epidemic of armed robberies.[355] Within months of the Detroit program's initiation, which like the Orlando program was widely publicized, the rate of armed robberies had dropped by 90%.[356]

In 1982, the Atlanta exurb of Kennesaw passed an ordinance--in symbolic response to the handgun ban of Morton Grove, Illinois--requiring all residents (with certain exceptions, including conscientious (p.506)objectors) to keep firearms in their homes.[357] In the seven months following enactment of the ordinance there were only five burglaries, compared to forty-five in the same period the preceding year, constituting an 89% decrease in residential burglary.[358] Kleck and Bordua maintain that "the publicized passage of the ordinance may have served to remind potential burglars in the area of the fact of widespread gun ownership, thereby heightening their perception of the risks of burglary."[359]

Studies of prison inmates confirm that criminals are deterred when they believe their potential victims are armed. Criminologists James Wright and Peter Rossi, who at one time had been proponents of severe gun control, concluded that an armed citizenry functions as an important deterrent to crime.[360] Of the prison inmates interviewed, nearly 37% had encountered an armed victim during their criminal careers.[361] Approximately the same percentage (40%) reported that they had not committed a particular crime because they feared their potential victims were armed.[362]

One form of deterrence is termed "confrontation deterrence," whereby a criminal actually confronts a potential victim and is thwarted by that victim. Gary Kleck has conducted the most thorough criminological studies regarding confrontation deterrence. Dr. Kleck's initial research, based upon a 1981 Peter Hart survey conducted for a gun control group, suggested that there are roughly 645,000 instances of confrontation deterrence involving handgun-wielding citizens every year.