GUN CONTROL ON TRIAL

CATO INSTITUTE

Contents

Acknowledgments....................................................xiIntroduction: Heller Makes History.................................xiii1. The Roots of the Second Amendment...............................12. The Genesis of Heller...........................................233. The Politics of Gun Control.....................................434. Gun Stories, Gun Culture, and Gun Prejudice.....................715. Guns by Numbers and Heller's Day in Court.......................856. The Heller Aftermath............................................109Selected Bibliography..............................................117Table of Cases.....................................................119Index..............................................................121

Chapter One

The Supreme Court decision in District of Columbia v. Heller declared that Americans have a right to use weapons for self-defense in their homes. That right is protected by the Second Amendment to the U.S. Constitution, the second of what is known as America's "Bill of Rights."

This declaration shocked, saddened, even "outraged" (as per Chicago's Mayor Richard Daley) many. However, most who objected to this ratification of an individual right to own weapons think of themselves as friends of the Bill of Rights and American liberty. The New York Times, for example, champion of the First Amendment, condemned the Court's majority as, in effect, cold-blooded killers, lamenting, "The Supreme Court ... all but ensured that even more Americans will die senselessly with its wrongheaded and dangerous ruling."

But the principle laid out in Heller would have seemed perfectly natural to nearly any American of the founding era. To most, it would have been so obvious that the government can't legitimately disarm a free people that even spelling it out would have seemed bizarre and pointless. That the right existed-even if, say, a Quaker might decline to practice it-was as well understood as any social or political convention could be. The only shock that would have arisen out of the Heller decision from an early American patriot would have been amazement that laws such as the ones struck down could have existed for so long without being overthrown.

Indeed, one of the advantages promised by the right to bear arms, which the Second Amendment protects, was that the U.S. government would never dare become tyrannical, since the people as a body would always have superior firepower. Even leading Federalist James Madison, who initially opposed the very idea of a Bill of Rights, promoted this idea. Its power to form a standing army notwithstanding, the federal government, Madison noted in Federalist 46, would always be facing "a militia amounting to nearly half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties." Americans, he said, have "the advantage of being armed," which we "possess over the people of almost every other nation." If Madison, a leading Federalist, openly explained that one of the reasons Anti- Federalists had little reason to fear the new government created by the Constitution was Americans' unaltered right to possess guns, it's hard to see how anyone could deny that that liberty was an understood natural possession of Americans among the people who wrote and ratified the Second Amendment.

Like much about early American legal and political systems, understanding the Second Amendment the way Americans in the founding era understood it requires some background in English history. A proximate ancestor of the Second Amendment is this clause from the English Declaration of Rights of 1689, stating that among the "true, ancient, and indubitable rights" secured by it was "that the Subjects which are Protestant, may have Arms for their Defence suitable to their Condition, and as are allowed by Law."

As the use of the term "ancient and indubitable" shows, the politicians who required William of Orange and Mary to accede to this understanding of their subjects' rights before taking the English throne did not think they were political or ideological innovators. Those who wrote the Declaration of Rights wanted it understood that they were not creating the rights enshrined in it. They were merely holding the monarchy to honor such rights-even while accepting some limits "as are allowed by the Law"-after nearly a century in which the right to have arms, in particular, had been threatened and harassed.

In her pathbreaking book To Keep and Bear Arms: The Origins of an Anglo-American Right, historian Joyce Malcolm convincingly argued that the English position in regard to weapons could be seen as an obligation, not just a right: an obligation to serve as peacemakers in their communities and towns, and to serve the king in defense of the realm, in a nation without professional police forces or armies.

To those who think of gun ownership and use as inherently uncivilized, who believe both personal and communal defense are properly contracted out to a select paid elite class, the scenario of individual responsibility for defense of self and community might well be even more shocking than a "right" to have arms. But when and if a "hue and cry" was heard, the Englishman's duty was to take up his arms and track down the criminals that threatened his town. He also had to do his share to keep watch at the town gates while "sufficiently weaponed" and keep fit with target practice in public spaces set aside in villages.

As Malcolm explains, those obligations to have and use weapons in communal defense grew to be seen as an often onerous and objectionable burden. But regarding the principle at issue in Heller-home self-defense-the English were punctilious. Even during times when Catholics were otherwise oppressed (out of fear that they intended to overthrow or subvert the Protestant kingdom), the Papists were still generally allowed to keep weapons sufficient for home defense.

And despite the Declaration of Rights' firm and inspirational language, the English right to arms was certainly not indubitable. A right to weapons was in the Declaration in the first place because it had indeed been violated, and recently. Before the English Civil War that resulted in the deposing and eventual beheading of Charles I, that unfortunate king tried replacing the widespread citizen militia with his own field army. In doing so, he set about confiscating the weapons of some citizen militias. The Rump Parliament of the Cromwell era then began to turn the citizen militia from its traditional role of defense of the realm into a machine to disarm the regime's political enemies.

The restoration of the monarchy in 1661 with Charles II was no restoration of unencumbered British rights, or obligations, relating to weapons. Charles II had some (understandable) mistrust of the Republican-era armies that had been responsible for his father's loss of throne (and head). He relied more on his own select militias than on the full body of the people, banned the import of weapons and weapon parts, legally disarmed tens of thousands of former soldiers of the Cromwell era, and ruled that any two of his deputies could legally initiate a search and seizure of weapons on anyone they arbitrarily decided was a danger to his kingdom. Charles II tried to enforce an early form of gun registration by ordering all gunsmiths in the realm to report all weapons they made and to whom they were sold.

In 1671, Charles II's regime also launched an unprecedented incursion, not merely against specific enemies, but on the general ability of Englishmen to own and use weapons: the Game Act.

The act forbade anyone without an estate with a yearly value of at least 100 pounds a year (unless of certain hereditary ranks) "to have or keep for themselves, or any other person or persons, any Guns, Bowes, Greyhounds" or even ferrets. It allowed any single justice of the peace, who could himself be a landowner aggrieved by some illicit weapon owner's poaching, to initiate a search. England had suffered previous regulations of a roughly similar sort, restricting the use of certain weapons in hunting to people of a certain income. Such regulation was more about keeping the lower classes in their place than any careful consideration of rights, political philosophy, or even public safety. Laws meant to protect the aristocracy's game hunting privileges had been common. But in the past, they had taken away only items actually used in poaching. Parliament had never before used game laws as an excuse to disarm the population generally.

Just because a law dictates that a certain class of people are forbidden to have guns doesn't mean those people don't have them-or are successfully punished for having them. (Just ask D.C. Mayor Adrian Fenty.) It is worth remembering that the D.C. government today doesn't know to what extent its gun bans have succeeded in disarming its citizens.

Still, Joyce Malcolm found reason to believe that, although the law was intended to give Charles II an opening to disarm the lower classes and, perhaps more important to him, his political opponents, most English citizens, high or low, managed to navigate those years with their weapons intact.

While the right to arms in our English heritage might not have been truly "ancient and indubitable," it was still a right that the English and English colonists had reason to respect. And their vivid historical experience helped them understand the hazards of allowing it to be readily abrogated.

That guns played a huge and central role in American history, on the frontier and elsewhere, had long been an understood and accepted part of American historiography. That understanding helped cement the idea that the Second Amendment secured a necessary, common, and everyday right for the founding generation. Various colonial governments, including Virginia, Connecticut, and the city of Newport, required gun ownership. Georgia for a while required that guns be carried to church, at least by white men. According to weapons historian Clayton Cramer, author of Armed America: The Story of How and Why Guns Became as American as Apple Pie, by the time of the American Revolution, militia statutes in every colony required free adult males to be armed.

The idea of an America rooted firmly in a "gun culture" was challenged-successfully, for a while-in a book that could have been very influential on the intellectual atmosphere surrounding Heller. Emory University historian Michael Bellesiles issued his book Arming America: The Origins of a National Gun Culture in 2000. It was an instant sensation in historical and popular intellectual circles for its iconoclastic demolition of an idea that every schoolchild thought he knew: that America was a country in which, based on our birth in revolution, our frontier heritage, and lately perhaps on pure bloody-minded Clint Eastwood cussedness, guns were a central part of our culture, heritage, and practice. As Joyce Malcolm summed up his message in a review in Reason magazine, Bellesiles asserted that guns "were heavily regulated, were owned only by a wealthy few in England, played little role in the conquest of the New World, adorned few colonial mantles, were seldom used for hunting, and were borne by few militiamen and even fewer of their friends and neighbors."

Very much because of the modern political implications of this historical assertion, journalists and most of the history profession warmly embraced Bellesiles's book. It was praised in such citadels of respectable opinion as the New York Times and the Washington Post and copped the profession's Bancroft Prize for the best work of history of 2000.

Then, instead of becoming a well-forged weapon in the fight against the notion that America was born of a "gun culture," Bellesiles's book turned out to be intellectual fraud in the service of an ideological fantasy. Various scholars took shots at Bellesiles's data and found, among other scholarly sins and errors, that he claimed to have examined probate record data that had been destroyed in a fire nearly a century earlier; claimed that his own notes on the records had been destroyed in a flood; completely miscounted and misrepresented what was in the records in the cases where other scholars could check what he allegedly found; and generally, as an independent review board found, featured "egregious misrepresentation" and "falsification." In other words, to overturn centuries of settled understanding-and successfully so, for a couple of years-Bellesiles simply and boldly made things up. (After being exposed, Bellesiles resigned from Emory, and his Bancroft Prize was rescinded.)

The America of the founding era was indeed a place where a gun was a common day-to-day accoutrement of life, and a tool vital for both civic and personal purposes. Young America already had a strong tradition of guns as tools for protection, recreation, rebellion, and food. It was a country fresh out of a revolution in which widespread possession of, and some skill in using, weapons was central to victory. It remembered the indignities and dangers of General Thomas Gage's attempts to disarm the citizens of Boston in 1775.

The United States was a country whose citizens had a right-which the government could not abrogate-to possess arms for their personal use. That should have been unsurprising and obvious. And it was. Still, a complicated history lies behind the Second Amendment and what it meant to its authors and ratifiers. That history is generally ignored by those who want to view gun rights through contemporary lenses, through the needs and expectations of a world where frontiers are mostly gone, hunting is sport not necessity, revolution is considered insane, and the standing army is thought by all respectable opinion to be both necessary and proper for the U.S.'s role in the world.

But English political and legal experience imbued early Americans-who were, thanks to their widespread possession of and well-developed skills in using weapons, themselves freshly ex-Englishmen-with the understanding that personal possession of weapons was necessary. This was both for civic purposes-the common defense of the polity against both external enemies and internal tyranny-and for the personal one of defending the most basic of classical liberal rights: that of self-preservation.

While the District of Columbia, its many amici (the term for supporters who file what are known as "amicus briefs" with the Court to support the arguments of a party in the case), and public supporters think this right doesn't really exist, the right of self-defense has long been considered a central-perhaps the central-human right in the Western tradition. Various thinkers who significantly shaped early American political and social philosophy, from ancient times to more contemporary ones, venerated that right. Among them were Aristotle, who defined the "polity" as those who bore arms; Cicero, who wrote, "Civilized people are taught by logic, barbarians by necessity, communities by tradition.... They learn that they have to defend their own bodies and persons and lives from violence of any and every kind by all the means within their power"; British legal thinker William Blackstone, who praised "the Natural right of resistance and self preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression"; and 18th-century French Enlightenment thinker Montesquieu, who noted, "It is unreasonable ... to oblige a man not to attempt the defense of his own life." Alexander Hamilton himself in Federalist 28 wrote of the "original right of self-defense which is paramount to all positive forms of government."

Contributing to the misunderstanding of the amendment's meaning has been the fact that two ideas are jammed into it, reflecting the dual role early Americans saw weapons playing in their life. Weapons were both necessary tools of self-defense and tools to meet the civic obligation of communal defense of liberty from both outside foes and their own government. The idea of weapons for personal defense was perfectly normal and understood in colonial times. Various state declarations of rights from the revolutionary era include a right to arms and clearly state the purpose was, in Pennsylvania's example, "for the defense of themselves and the state." Some states did rely explicitly on "common defense" language, but those ideas were commonly mixed in early American ideology, not exclusive. The body of American political minds that ratified the Bill of Rights in 1791 considered inserting the phrase "for the common defense." They made the deliberate choice not to explicitly restrict the right to arms that way.

The public discussion about the Second Amendment after it was ratified also indicates that Americans of that era would have been shocked if their ownership of weapons was not largely free of government interference. As Tench Coxe, an influential Federalist intellectual, wrote in a popular pamphlet, whose assertions were utterly uncontroversial at the time, "every ... terrible implement of the soldier, are the birth-right of an American."

(Continues...)

Excerpted from GUN CONTROL ON TRIALby BRIAN DOHERTY Copyright © 2008 by Cato Institute. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.