Private: Defying the Extremes on Guns

By Adam Winkler, a professor at UCLA School of Law.

I’ll never forget the scene outside the Supreme Court building the day of oral argument in District of Columbia v. Heller. Scores of reporters and camera crews were there to cover the hundreds of protestors who turned First Street into a lively theatre of debate over the meaning of the Second Amendment. A man with a bullhorn boomed, “More guns!” In response, gun rights supporters in the crowd hollered, “Less crime!” “More guns!” “Less crime!” A group of gun control proponents whispered among themselves and the next time the man with the bullhorn chanted “More guns” they yelled, “More crime!” As in the gun debate more generally, however, the gun controllers were easily drowned out by the more numerous and vocal gun rights advocates. 

Although the language of the Second Amendment has confused generations of lawyers, the protestors in front of the famous marble steps of the Supreme Court knew exactly what it meant. To gun rights supporters, the amendment clearly guaranteed individuals the right to own guns and placed strict limits on gun control. To proponents of gun control, the amendment merely provided for state militias and had little relevance for ordinary gun laws. Although the two sides reached very different conclusions, they shared a common view of the right to bear arms. Both sides believed an individual right to have guns was fundamentally incompatible with gun control. We must choose one or the other.

Gunfight: The Battle over the Right to Bear Arms in America shows that, contrary to the extremists on both sides, we’ve always had both a right to bear arms and gun control. The founding fathers who wrote the Second Amendment had gun laws that the modern gun lobby would never accept. Not only did they prohibit free blacks and slaves from owning guns to promote public safety, they also restricted the gun rights of political dissenters. They required ordinary citizens to buy military style firearms — an early version of an “individual mandate”—and ordered them to appear for mandatory “musters” where their guns would be inspected and registered on public rolls. To them, the Second Amendment was not a libertarian license. We the people were the militia, but that militia was required to be “well regulated.”

In my research into guns, I discovered that efforts to balance gun rights with gun control have shaped America in fascinating and unexpected ways. Dodge City, Tombstone, and other frontier towns of the Wild West had the most restrictive gun control laws in the nation. Out in the untamed wilderness, everyone had guns for self-protection. But when you arrived in a town, where the civilized people lived, you had to check your gun like you might today check your winter coat at a restaurant. The very first law Dodge City residents enacted when the town was established was a ban on carrying concealed guns in public; many towns also prohibited carrying openly displayed guns. Perhaps as a result, gun violence in these towns was far less prevalent than we often imagine, averaging less than two murders a year. Turns out there wasn’t much reason to get out of Dodge.

Like so much in American history, our approach to guns has been profoundly affected by race and racism. The Ku Klux Klan, for instance, began in some senses as a gun control organization: the former Confederate soldiers rode out at night into black neighborhoods to take away the guns from the freedmen — who, thanks to the Civil War, had for the first time obtained firearms. Such disarmament efforts helped motivate Congress to endorse the Fourteenth Amendment, which its drafters insisted was designed to extend the protections of the Bill of Rights, including the right to bear arms. Whether or not the founders sought to protect an individual right to bear arms in the Second Amendment, advocates clearly aimed to protect such an individual right with the Fourteenth. 

Gunfight reveals how, in the 1970s, the modern gun rights movement crystallized around opposition to a wave of gun control laws adopted to restrict access to firearms by blacks. One of the most remarkable gun incidents in American history occurred in 1967 when the newly formed Black Panther Party took a cache of loaded rifles, shotguns, and pistols and marched right into the California Capitol in Sacramento. They were there to protest a proposed new gun control law that would give California among the most burdensome gun regulations in the nation. The law was enacted with the strong support of conservative Republicans in the state, including the man who would become a hero to the National Rifle Association, then-Governor Ronald Reagan. It was laws like these, which targeted urban, black, leftist radicals that, ironically, sowed anger and resentment among the rural, white, conservatives who formed the backbone of the modern gun rights movement.

When Justice Antonin Scalia announced from the bench that the Supreme Court agreed that the Second Amendment protected the right of individuals to own guns in the Heller case, gun advocates celebrated their victory and gun control proponents bemoaned their loss. Yet, like so much else in America’s complicated history with guns, Scalia’s opinion was far more nuanced than either side in the gun debate admitted. Towards the end of his opinion, Scalia said that the District of Columbia couldn’t ban handguns but that the vast majority of gun control laws were not called into question by the ruling. Since then, the federal courts have decided hundreds of challenges to gun control, upholding nearly every law. Gun rights won, but so did gun control. Let’s hope that the Supreme Court’s decision in Heller can, in the long term, help restore a sense of balance to the gun debate and enable us to break the current political stalemate over guns in America. 

Constitutional Interpretation, Criminal Justice, Individual liberties, Supreme Court