Gunfight: The Battle Over the Right to Bear Arms in America

The preliminaries

• The language of the 2nd Amendment of the US Constitution is maddeningly ambiguous: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
  • Does it guarantee an individual right to bear arms?
• For much of the 20th century, US courts said that the 2nd Amendment protected only the right of states to form militias, like the National Guard, and not any individual right.
  • In the 1770s, when the Constitution was sent to the states for ratification, one common concern was that the federal government would take over state militias.
    • States militias were composed of armed citizens.
    • The 2nd Amendment arose as a compromise to prevent the federal government from disarming the state militias.
    • This “militia theory” did not guarantee an individual right to bear arms, and as state militias became irrelevant, so did the 2nd Amendment.
• The gun discourse is largely represented by two groups:
  • On one side is the “gun nuts,” saying that the 2nd Amendment establishes gun ownership as an individual right, like the right to free speech, that should be unfettered by government regulation.
    • They oppose widely popular laws such as background checks on gun purchasers and prohibitions on civilian ownership of machine guns.
  • The other side is the “gun grabbers” and their ultimate goal is to eliminate all privately owned firearms.
    • They believe that the 2nd Amendment is only about state militias.
• There are nearly 300 million guns in the US, and disarmament is profoundly unrealistic.

“Gun Grabbers”

• Gun control proponents have boundless idealism. For example, in the 1970s, proponents of Washington D.C.’s gun ban knew that the District was flooded with out-of-state guns, and banning the possession or sale of handguns wouldn’t stop the crime wave. 
  • But council members thought the ban would spark a nationwide trend to ban all handguns in the US.
  • To every crisis, gun grabbers have the same solution: do away with the guns.
    • Yet each state constitution guarantees an individual right to bear arms.
• The gun rights community views ineffective gun laws as proof that gun controllers are less interested in reducing crime than in harassing gun owners and disarmament.
  • Liberals dismiss this fear, but feel the same way when any hurdles are erected to women’s ability to choose abortion. There, restrictions are seen only as efforts to bully women and to ultimately outlaw all abortions.
• For example, in 1994, a federal law attempted to ban the sale of any semi-automatic rifle that had the menacing appearance of a machine gun.
  • It was like a law designed to reduce dog bites, but it only outlawed the sale of Dobermans.
    • This law wouldn’t improve public safety, as not every Doberman is dangerous and other reputedly dangerous dogs are not affected. Symbolism over substance.
  • Sales of copycat firearms increased because gun owners thought they had to buy them before other similar laws were passed.

“Gun Nuts”

The NRA

• In 1871, William Church and George Wingate founded the National Rifle Association to promote and encourage marksmanship and firearms training.
  • They had fought for the Union in the Civil War and were shocked by the poor marksmanship in the army.
  • In its first few decades, the NRA pushed for landmark gun control legislation to:
    • Ban anyone without a permit and a “proper reason” from carrying a concealed gun in public;
    • Impose a waiting period on handgun purchases;
    • Require handgun sellers to be licensed; and
    • Tax certain firearms heavily.
• In the 1960s, the NRA membership began to change, and eventually, it formed a lobbying arm to fight the increasingly strict gun control proposals.
• Although the NRA claims that gun regulations like the Brady bill (which in part requires someone to wait several days before receiving a purchased gun) don’t work because criminals don’t buy handguns from federally licensed dealers, more than 1.5 million illegal attempted gun purchases were rejected because of it in the decade after the law was enacted. 
  • And also, to refute that logic, we don’t rescind laws prohibiting murder or speeding even though people still kill and speed.
  • Additionally, the NRA pushed for the gun show loophole: Someone who is not federally licensed can sell guns at a gun show without having to conduct a background check.
    • 40% of all gun purchases occur this way.
      • An investigation of gun shows in three states found that 63% of private sellers sold guns to people who “probably couldn’t pass a background check.”
  • The NRA claims gun control laws don’t work, but when comprehensive controls are proposed, the NRA works to ensure that they are as weak as possible. Then the NRA argues that gun control laws don’t work.
• The gun lobby likes to say that we don’t need new gun laws, we just need to vigorously enforce the ones we already have. Yet, in practice, the gun lobby generally seems uninterested in supporting gun laws.
  • They believe that guns make us safer, and are not dissuaded by the fact that that the US has one of the highest murder rates and more guns per capita than any Western nation.
• Most gun owners support efforts to keep criminals from obtaining guns: 72% of gun owners support background checks and a five-day waiting period for gun purchases; 79% support mandating gun-safety courses for gun buyers.

The Founding Fathers’ Guns – 1770s

• The colonists had no standing army of their own, but had for decades formed militias composed of ordinary men to fight, and these militias relied on privately owned guns.
• In the Revolutionary Era, gun laws were strict. Because there was no standing army, the national defense depended upon an armed citizenry.
  • With national defense becoming too important to leave to individual choice, the founders implemented laws that required all free men to outfit themselves with a musket, rifle, or other firearm.
    • Several times a year, officials would inspect people’s guns and account for the firearms on public rolls–an early version of gun registration. Some states conducted door-to-door surveys of gun ownership.
  • The founders understood that gun rights had to be balanced with safety needs.
    • Gun safety regulation was commonplace in the colonies. 
    • The right to bear arms was not a license to do whatever a person wanted with a gun.
      • The founders supported forcible disarmament of slaves, free blacks, and people of mixed race, fearing revolt.
  • There is no record of anyone complaining that these laws infringed on their right to keep and bear arms in the name of public safety.
• Don Kates, a lawyer, conducted extensive research on the 2nd Amendment and found that few ideas were as frequently endorsed by those in the Revolutionary period as the right of ordinary citizens to possess guns.
  • He wrote a famous article in the Michigan Law Review refuting the militia theory.
    • The Bill of Rights has many other provisions where “the right of people” implies individual rights.
    • The First Amendment, for example, refers to “the right of the people…to petition the Government,” and the Fourth Amendment refers to the “right of the people to be secure…”
    • The militia theory purports that the reference to “keep and bear arms” meant that the collective right was limited to battle.
      • Kates said that the problem is that the founders often used the term “keep arms” to mean possession of weapons at home, even in contexts far removed from military service.
  • Kates acknowledged that the founders were primarily concerned with the militia.
    • But it’s not contrary for the provision to also protect the right of individuals to have guns. It was precisely by protecting the individual that the framers intended to protect the militia.
  • Kates recognized that many forms of gun control wouldn’t conflict with the 2nd Amendment. He thought that mandatory gun registration, bans on rifles and machine guns, and restrictions on carrying firearms in public were all consistent with the 2nd Amendment.

Civil War – 1860s

• Worried that slaves and free blacks would start a race war, many white southerners were terrified at the prospect of black men with guns.
  • In the South, militias transformed into slave patrols. Posses of armed whites would hunt down escaped slaves and terrorize free blacks.
  • The most infamous disarmament posse was the Ku Klux Klan. Across the nation, groups of KKK took away guns so blacks couldn’t fight back.
• Abolitionists extolled the virtues of gun ownership for blacks who wanted to defend themselves. The North saw the right to bear arms as one of the freedmen’s fundamental rights and sought to stop the southern aggression.
  • The authors of the 14th Amendment defined the right to keep and bear arms primarily in terms of individual self-defense; freedmen had a right to defend themselves from the racist state militias and Klansmen.

The Wild West – 1890s

• The Wild West was filled with guns but was not nearly as violent as usually imagined. Frontier towns had some of the most restrictive gun control laws.
  • Homicides were few and far between–crime was generally rare in frontier towns. 
  • The popular mythology of gun-toting cowboys having a shootout was more marketing than anything else.
• To gun rights hard-liners, the paucity of gun deaths must have been a product of easy access to guns. But the reality was more complicated–there was lots of gun control.
  • Although in the wilderness almost everyone carried firearms, in frontier towns, the law often forbade people from carrying their guns. There were blanket ordinances against the carrying of arms by anyone. 
  • No gun control was more common in the late 1800s than bans on concealed firearms. 
• Wild West lawmen frequently arrested people who violated their town’s gun control laws.
  • Gun control stemmed from a desire for economic development–people don’t want to go somewhere where there’s a chance they may get murdered by a stray bullet if people were allowed to conceal carry.

Gangsters – 1930s

• In the 1930s, the federal government first began seriously regulating guns.
  • Criminal law was traditionally left to the states, but the car and the highway system offered bandits an easy route to freedom. 
  • State and local police had no jurisdiction to arrest someone across state lines, and officers would stop at the border as the bandits drove on–it became a crime problem only the federal government could solve.
• President Franklin Delano Roosevelt’s plan to extend big government to secure a more prosperous, less risky future for all Americans was known as the New Deal.
  • He portrayed gun control and crime fighting as an element of the New Deal.
  • Eventually, Congress adopted the National Firearms Act of 1934. It imposed an onerous tax on machine guns, short-barreled shotguns, and rifles. 
    • It also required that owners of those guns register with federal authorities and submit to fingerprinting.
    • While no one expected mobsters and criminals to comply with these requirements, their failure to do so meant that if any one of them was caught with that type of gun, he could be in jail for up to 5 years for noncompliance. 
      • The government wouldn’t have to prove that he killed anyone, only that he hadn’t paid taxes or registered his weapon.
  • The NRA encouraged this nationwide push for more restrictive gun control.

The Black Panthers – 1960s

• If it hadn’t been for the Black Panthers, a militant group of Marxist black nationalists, there might never have been a modern gun rights movement.
  • Police abuses were often entwined with Klan violence, and some blacks felt that they had to defend themselves by any means necessary, and characterized their right to use guns in self-defense in constitutional terms.
• Soon California, where the Black Panthers were initially most active, passed legislation banning public possession of loaded guns. 
  • This later gave rise to the federal Gun Control Act of 1968 and the Omnibus Crime Control and Safe Streets Act (after race riots and the assassinations of Martin Luther King Jr. and Robert Kennedy).
  • This marked Congress’s first attempts at serious gun regulation since the 1930s, and represented a backlash against armed blacks.
  • Although it was the most sweeping federal gun regulation enacted up to that time, its scope was modest and as a consequence, its impact was minimal.
• By the mid-1970s, NRA leaders were openly calling for its repeal.
  • The new NRA-led gun rights movement was not only fueled by the laws passed to disarm the Black Panthers; it echoed many of the principles espoused by the Panthers.

D.C. v. Heller – 2000s

• In 1939 SCOTUS found in US v. Miller that the National Firearms Act didn’t violate the 2nd Amendment.
  • The opinion focused on the fact that a sawed-off shotgun wasn’t a typical weapon used by a militia and thus wasn’t protected by the 2nd Amendment. The opinion suggested that weapons typically used by militias might be protected.
    • Yet, federal courts consistently read the opinion to mean that the 2nd Amendment did not grant an individual right to bear arms.
• Washington D.C. banned people from possessing a handgun, even in their homes.
  • Dick Heller, a security guard, came home one night to find a stray bullet fired into his front door, and wished he could use a handgun for protection. 
  • At the same time, Clark Neily and Bob Levy, two attorneys, were considering a 2nd Amendment lawsuit that would one day make it to SCOTUS. They hired Alan Gura to argue the case.
    • SCOTUS might be more inclined to hear a case involving a law-abiding person who wanted to own a gun for self-defense. 
• The NRA didn’t think there would be enough votes for the individual-rights view, and a decision affirming the militia theory would be terrible for them.
  • Even a victory for gun owners might have an adverse impact on the NRA because it relied on crisis-driven fundraising appeals warning members that the government was taking their guns.

Oral argument – some questions the justices asked

• If the right is limited to state militias, why would they say “the right of the people” instead of “the right of state militias”?
  • Justice Antonin Scalia interjected and answered: The framers knew that the way tyrants destroyed militias in the past was not by passing a law against militias, but by taking away weapons. Since we need a militia, the right of the people to keep and bear arms must not be infringed.
• D.C.’s attorneys tried to argue that the ban was reasonable because it only applied to handguns.
  • But if a complete ban on handguns is allowed, then no gun control would run afoul of the 2nd Amendment–and then, what would be the point of the 2nd Amendment?
• Does the 2nd Amendment protect a right to have any type of gun, or only particular firearms?
  • An attorney for the White House (under President George W. Bush) argued that the kind of plastic gun or guns specifically designed to evade metal detectors were not within the meaning of the 2nd Amendment.
    • The White House was concerned about this case. The primary responsibility of the executive branch is to enforce the law, and a broad 2nd Amendment ruling could undermine federal gun control laws that prosecutors used to put criminals in jail.
  • Gura needed to assure the justices that an individual right to bear arms didn’t mean anyone could have any type of weapon–this would ensure that most federal laws would remain intact.
    • He argued that the 2nd Amendment didn’t present a permanent barrier to any and all gun control. A whole host of gun control laws would be consistent, such as requiring safe storage or a license, demonstrated competency or background checks.
• In light of these concessions, does the 2nd Amendment really say “the right shall not be unreasonably infringed”?
  • Again, Justice Scalia answered: “You would just say it is not being infringed,” when certain kinds of limitations, like machine gun bans, are enacted.
• Does the first clause, “a well regulated militia,” limit the second clause, “the right to bear arms?”
  • Scalia interjected again: “The principal purpose here is the militia, but the second clause goes beyond the militia and says the right of the people to keep and bear arms”; why not acknowledge that the right is broader than the first clause?

The decision

• Although one of the goals of the framers was to secure state militias, the right to keep and bear arms was not limited to militia service. We the People were the militia, and so We the People had a right to keep guns and use them if necessary to protect ourselves from criminals.
  • The opinion did not set any standard for courts to apply to future cases challenging gun control.
  • The opinion did indicate that many forms of gun control could be constitutional. Like most rights, the 2nd Amendment is not unlimited.
    • The right isn’t to keep and carry any weapon whatsoever in any way whatsoever and for whatever purpose. Scalia implied that the right might be restricted to the home. Individuals did not necessarily have the right to possess a weapon in public.
• Scalia stated that the reason D.C. couldn’t ban guns was because that type of weapon was in common use.
• Criticism
  • If the 2nd Amendment is to be a meaningful constraint on government, then it must do more than just identify a fundamental individual right in abstract terms. 
    • It must also separate what the government can and cannot do.
• Effect
  • Few laws were invalidated. Lower-court judges pointed to Scalia’s exceptions and said that whatever law they were ruling on was similar and constitutional.
  • In 2010, SCOTUS heard McDonald v. City of Chicago and held that the 2nd Amendment applied with equal force to federal, state, and local laws.

For 70 years, SCOTUS remained on the sidelines of the gun debate; the Court’s absence allowed extremism to command the field. Without any decisions firmly protecting the right to bear arms and delineating the scope of that right, extremists were free to cast the 2nd Amendment in their own terms.

• Heller was a compromise. Individuals have a right to possess a gun for self-defense, but that right can and should be subject to regulation in the interest of public safety.
• By making civilian disarmament impermissible, Heller allows us to accept the permanence of guns and focus on the policies that can effectively reduce gun violence.

• The rise of conservatism–especially through Antonin Scalia and the Federalist Society–that ultimately led to the rethinking of the 2nd Amendment
• How the famous shootout at O.K. Corral is not only a story about America’s gun culture, but also a tale about America’s gun control culture, as Wyatt Earp ordered Tom McLaury to turn over a firearm he concealed in violation of the town’s ordinance
• The advent of originalism, largely under Scalia’s wing, and how Heller is actually not the epitome of originalism, as it is commonly lauded to be
• Richard Posner’s criticism of originalism and how the framers favored a loose construction of legal texts to uphold the spirit of the law in changing circumstances rather than calcify the text’s meaning to a given era
• The incredible lengths the NRA took to prevent D.C. v. Heller from reaching SCOTUS