Reasonable gun control is not unconstitutional – but gun control can be unreasonable.
Craig R. Whitney’s Living with Guns (informatively subtitled: A Liberal’s Case for the Second Amendment) tries to occupy a middle ground between “gun grabbers” and “gun nuts” – between U.S. Senator Dianne Feinstein’s view that Americans should be required to turn in all of their guns and Charlton Heston’s view that his guns would have to be taken from his cold dead hands (p. 18). In doing so, it is very much like two other books I have read recently, Dan Baum’s book Gun Guys and Adam Winkler’s Gunfight.
Whitney has solid liberal credentials: a graduate of Harvard he worked for the New York Times in various capacities for four decades until his retirement in 2009. He also has military experience, enlisting in the US Naval Reserves after graduating from college and serving as a junior grade officer in Saigon in 1968-69. There is much for people on all sides – indeed, there are more than two – of the gun debates to consider in this book.
Whitney summarizes his view of the Second Amendment in the book’s introduction: “I came to the conclusion that the Second Amendment did, indeed, recognize an individual right to own and use firearms for self-defense, hunting, or any other lawful purpose that Americans have been exercising since Jamestown and Plymouth Rock. But I also found that with the right came a civic duty, which was then to use those firearms in the common defense when called upon. Notably absent in the current stalemated debate about the second amendment is any sense of obligation, a civic duty, connected with the right to bear arms today – yet surely there is such a duty, to exercise the right responsibly and not recklessly” (p. xii).
He reiterates this point in the book’s conclusion: “Effective gun regulation, regulation that has a chance of actually reducing gun violence and crime, has to begin with positive recognition by all Americans who want to achieve it that the right to keep and bear arms is an individual right, and that law-abiding individuals should be able to exercise that right without being made to feel as if they were criminals. But those who value the right must also recognize that it is not absolute, and that it comes, as all rights do, with responsibilities. In the beginning, two centuries ago, it was connected with a civic duty: militia service in the defense of community and freedom. Today, gun owners should be encouraged to recognize their civic duty to do what they can to make the free use of firearms safer than it is today – not just for themselves but for all of us” (p. 212).
I don’t imagine that Whitney’s vision of a robust civic culture will be compelling to the more libertarian-inflected parts of the gun culture, which claims it simply wants to be left alone. But perhaps it is a vision that is compelling to the broad and deep middle of American society? Or is it just because I agree with Whitney on this point that I see him appealing to the middle (since my views, of course, must also represent the mainstream of American society)?
WHITNEY’S CASE FOR THE SECOND AMENDMENT
In any event, Whitney’s conjoining of rights and responsibilities is not novel, but is a perspective worth reiterating since the debate over guns so often devolves into a question of rights alone. But, according to Whitney, American colonial history shows that “having firearms was a matter of right – a right recognized in common law. Furthermore, just as the duty to bear arms was a matter of law, the right to own them was, under common law, also subject to restrictions from earliest colonial times” (p. 45). Among the examples Whitney discusses are those in the Massachusetts Bay colony who were considered heretics for following religious leaders Anne Hutchinson and John Wheelwright, Roman Catholics, “indentured servants, slaves, and those who refused to swear allegiance to the government or non-property owning white males” (p. 47). Virginia prevented Negroes from bearing arms as early as 1648 (p. 54).
Not every gun control law in early America was based on religious or racial prejudice. For example, from 1713 firing a gun in the mainland part of Boston was prohibited (p. 55). Still, these laws do not reflect well on advocates of gun control. They do show that regulation of firearms ownership and bearing have deep historical roots in American law. They also show that these same regulations were often based on unjust discrimination and not simply concern for public safety. From the gun rights perspective, this casts a pall over even the most seemingly innocuous gun control proposals. Gun owners often feel as if it is they not their guns that are being controlled. And for religious and racial minorities, that has historically been the case. Indeed, even the English Declaration of Rights, which is a key foundational document for British and subsequently American democracy, maintained in Article 2 that “the subjects which are Protestants, may have for their defense arms suitable to their conditions, and as allowed by law.”
That prejudice did not make it into the Second Amendment to the U.S. Constitution, but in its place is a militia clause which has confused the right to keep and bear arms considerably. In Chapter 3, “Guns Against Tyranny,” Whitney sets about to investigate the meaning of the Second Amendment. He writes, “The language itself does no favors to those looking for its true meaning: ‘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'” (pp. 71-72).
In order to understand what the authors of the amendment intended, it is necessary to grapple with the militia clause, as well as the meaning of “the people” and how the bearing of arms is to be understand (independently of or only in connection with the militia clause?). By a very narrow margin of 5-4 in the District of Columbia v. Heller and McDonald v. Chicago decisions, the Supreme Court of the United States has held that the Second Amendment is an individual and not a collective right – that “the people” referred to in the amendment is not the people collectively but the people individually. But, of course, that finding is possibly just one Supreme Court retirement away from being reversed.
Whitney does note that Thomas Jefferson, author of Virginia’s state constitution, favored the right to bear arms as a personal right, at least for free men. He invokes Cesare Beccaria’s famous words, “the laws that forbid the carrying of arms … disarm only those who are neither inclined nor determined to commit crimes” (p. 75). Or, as we say today, if guns are outlawed only outlaws will have guns.
Whitney finds notable the “lack of mention of self-defense, hunting, or target practice” in the Constitution, and argues that this is because it was already established by common law that the central government had no ability to regulate these rights. “The framers did not set out to create a new individual constitutional right.” What the Second Amendment did was “recognizing, acknowledging, and protecting an individual right that Americans had already, a pre-existing right. And it conjoined the right to keep arms with the duty to bear arms in what, at that time, amounted to civil defense. When the founders said ‘rights,’ they meant rights that came with civic responsibilities. But they did not say, or write, the people have the right to keep and bear arms only if they were serving in the militia. The militia needed people equipped with and trained to use guns. But those people did not need to belong to the militia to have a right to own them” (p. 95).
INTO THE 19TH CENTURY
Chapter 4 focuses on “Guns and Self-Defense in 19th Century America.” Whitney observes, “After the turn-of-the-century, as they became more easily available, guns came to be seen less as adjuncts to civic duty than as means of individual empowerment and self-defense. With that change came abuses of the right to own and use firearms, and, consequently, increased regulation. These changes did not come all at once; they came in different ways, and they also produced backlashes – indeed, one that began in the 1960s that has led to the present day ascendancy of the view that the right to own and carry personal weapons for self-defense is paramount” (p. 105).
If the 20th century was the century of concealed carry liberalization, the 19th century was the century of increasing restriction on concealed carry. The reasons for these restrictions were seemingly apparent to many people at the time. No less an observer of American society than the Frenchman Alexis de Tocqueville quotes an Alabama lawyer in 1832: “There is no one here but carries arms under his clothes. At the slightest quarrel, knife or pistol comes to hand. These things happen continually; it is a semi- barbarous state of society” (p. 107).
An 1850 the Louisiana Supreme Court ruling upholding the state’s ban on concealed carry of weapons read: “This law became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. It interfered with no man’s right to carry arms (to use its words) ‘in full open view,’ which places men upon any quality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defense of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations” (p. 112).
The Louisiana court ruling says nothing about race, but in other cases – as with pre-19th century restrictions – race was a primary motivation for imposing restrictions on the right to keep and bear arms. The slave uprising led by Nat Turner in Virginia in 1831, during which 57 whites were killed, became a cautionary tale for many. As Whitney writes, “Although Turner’s followers had used mostly knives, axes, and blunt instruments, not guns, many southern legislatures moved after the violence to deny the right to own firearms not only to slaves but also to free blacks. In 1840, for example, North Carolina passed a law providing ‘that if any free Negro, mulatto, or free person of color, shall wear or carry about his or her person, or keep in his or her house, any shotgun, musket, rifle, pistol, sword, dagger or Bowie knife, unless he or she shall have obtained a license therefore from the Court of Pleas and Quarter Sessions of his or her county, within one year preceding the wearing, keeping or carrying thereof, he or she shall be guilty of a misdemeanor, and may be indicted therefor.’ When a free black man, Elijah Newsom, was convicted of violating the law by having a shotgun in his possession, the state supreme court ruled in 1844 that the law and the conviction were in accordance with North Carolina’s constitution, which at the time denied ‘free people of color’ the right to vote and meant that they ‘cannot be considered as citizens, in the largest sense of the term,’ –a view later reinforced by the United States Supreme Court” (pp. 118-19). North Carolina was not alone in turning racial prejudice into gun control. “Mississippi adopted a ‘black code’ in late 1865 forbidding any ‘freedmen, free negro, or mulatto’ not serving in the occupying army to have or carry firearms or knives without a license from the local police, and Alabama’s Black codes did the same” (p. 121).
It was not until the Freedman’s Bureau Act of 1866, passed over President Andrew Johnson’s veto, that equal protection under the law was guaranteed to former slaves under the law, including specifically the constitutional right to bear arms. But that protection was short-lived as ongoing violence in the South, especially the Easter Sunday 1873 massacre of at least 150 blacks in Colfax, Louisiana, compelled the Supreme Court of the United States to weigh in on the Second Amendment. Its ruling in United States v. Cruickshank not only limited the Second Amendment, but also the rights of blacks to protection against discrimination, by giving authority to state and local governments to limit the right to keep and bear arms, even in discriminatory ways (pp. 128-29).
LIBERAL TRYING TO UNDERSTAND GUN RIGHTS PERSPECTIVE
In Chapter 7, the shortest chapter of the book, Whitney tries to look at the issue of guns from the perspective of those who support gun rights. He does so with some success. He begins by observing, “Proposals to control gun violence might have more chance of grudging acceptance by gun owners if supporters of gun laws, and those laws themselves, made it clear that what they aim to change is not the common-law right of most people to own and use firearms, but the misuse of firearms, especially by the tiny minority of people who under common law can and should be denied that right. Too often, proposals to reduce gun crime are couched in language that seems to treat anybody who wants to own a gun as potentially criminal” (p. 194).
Later in the chapter, in discussing Minnesota’s change from a “may issue” to a “shall issue” concealed carry state, Whitney observes that different assumptions about human behavior underlie different positions on whether individuals should be allowed to carry weapons in public. “The underlying assumption of the [Minnesota shall issue] law is clearly and consistently about individual responsibility, and about the presumption of good behavior. A gun control law that bars people from carrying weapons into places where alcohol is served is based on a different assumption – that human beings don’t always do what’s right. Pistol packing patrons might take a drink even though they know they shouldn’t, and after that, well, guns and alcohol don’t mix. The Minnesota law assumes what gun rights advocates want it to assume – that people punctilious enough to get carry permits know that guns and alcohol don’t mix, and therefore won’t imbibe. It assumes a certain amount of maturity, with the minimum age for a permit being 21. So the law allows people legally carrying pistols to take them into bars and other places that serve alcohol, unless they have signs saying weapons are banned on the premises. But if permit holders do take even a single drink or otherwise put themselves under the influence of alcohol or drugs while carrying a weapon, they can be arrested and their permits can be suspended or revoked, whether they’re civilians or law enforcement officers” (pp. 203-204). Interestingly, on October 1st of this year, new laws governing concealed carry in my home state of North Carolina went into effect that spoke to this same issue. NC concealed permit holders can now carry in bars and restaurants that serve alcohol, except where specifically posted, as long as they do not consume any alcohol.
Of what consequence was Minnesota’s liberalization of their concealed carry law? According to Whitney, none. “Allowing 70,000 people to carry concealed firearms did not result in an increase in violent crime in Minnesota” (p. 205). This is consistent with other states that have implemented “shall issue” concealed carry laws. For Whitney, allowing responsible adults to carry concealed firearms should not cause concern to his fellow liberal citizens. He asks his readers to “imagine, for a minute, that New York City had to recognize out-of-state concealed carry permits. Would that really make violent crime worse there? Ask yourself how many criminals who come gun toting to Gotham with mayhem on their minds are likely to have taken the trouble to get concealed carry permits first, and you may have your answer” (p. 206).
Allowing law-abiding citizens to keep and bear arms does not lead to social problems like the widespread violence we see in our society. “When people, insanely or otherwise, become bent on murder,” Whitney concludes, “they will find the means to accomplish it whether or not they can get hold of guns. What guns do is make it less likely that the attempt will fail, and they also sharply increase the probability of serious injury. But strict gun control alone cannot solve our current problems. It is not guns that cause those problems, but human behavior, and influencing that in communities troubled by gun violence is just as important as cutting down the number of illegal guns available there. Hard as it is for many liberals to accept, what the gun-rights activists say is mostly true – guns don’t kill people; people do” (p. 189).
AS HE SAYS, HE IS A LIBERAL
Whitney’s desire for gun rights activists to recognize the importance of civic responsibility – as opposed to the more conservative/libertarian focus on individual responsibility – marks him as a liberal. Even as a liberal myself, I could never forget that I was reading a book written by a liberal. For example, in discussing stand your ground laws, he notes that critics dubbed them “shoot first” laws – employing quotes. He then goes on to refer to these laws as shoot first laws himself – without the quotes. He is consistently critical of the NRA for their role in fostering a culture war between pro-and anti-gun sides, but invokes the Violence Policy Center and Mayors Against Illegal Guns as apparently neutral sources of information.
Of course, Whitney never suggests that he is anything other than a liberal trying to find a middle ground in the culture war over guns, but these characteristics of his work I fear will make it harder for him to carry his ideas through to the other side. He makes clear he is no fan of the NRA. For example, he alleges that “the NRA urges ordinary Americans to arm themselves and urges legislators to pass laws allowing them to blast away when threatened” – an apparent reference to “Stand Your Ground” laws (p. 26). But on the same page he recognizes that the Second Amendment “is a right of all Americans, and the desire to carry a gun does not always make the person who carries more likely or eager to use it.” And also on the same page he recalls a New York Times article about a reporter who took the Texas concealed carry course and was told anything but “to blast away when threatened.” In fact, the reporter was told that shooting is always the last resort, that it is not permissible to brandish a weapon as a warning, that one should not drink at all when carrying a gun, and that the object of using a firearm in self-defense is not to kill but to stop an attacker (see Ralph Blumenthal, “Bull’s-eyes of Texas: Getting a Gun License,” July 14, 2006).
Also, the solutions Whitney suggests to the problem of gun violence in the conclusion to the book – which are very similar in many ways to those suggested by liberal gun guy Dan Baum – are very much in line with ideas promoted by Mayors Against Illegal Guns, the Brady Campaign, and those who approach the problem of gun violence from a public health perspective like those working at the Bloomberg (yes, that Bloomberg) School of Public Health at Johns Hopkins University (see the recently published book Reducing Gun Violence in America). These are unlikely to speak strongly across the gun divide.
Whitney’s book was published just a month before the massacre at Sandy Hook Elementary School in Newtown, Connecticut. On his website he offers some advice to President Barack Obama about his commission on gun violence, headed by Vice President Joe Biden.
Among his advice is to prevent excluded persons from buying AR-15 style modern sporting rifles, but not to try to ban “assault rifles” themselves (which he himself puts in quotes). In the end, “The important thing is for your commission’s report to start the national conversation about what measures gun owners and gun-control advocates can agree on to make it safer for all of us to live with the 300 million guns in private hands in America. Constructive talk may get us there – confrontation clearly has failed.” But those who favor gun rights were all but excluded from discussions with the commission. The commission did not model the very conversation that Whitney calls for. I am sure he was disappointed in that, even if he favored some of the commission’s suggestions.
MISCELLANEOUS OTHER THOUGHTS FROM THE BOOK
James Madison’s original draft of the Second Amendment: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person” (p. 93).
Whitney quotes Saul Cornell from his book A Well-Regulated Militia: “gun rights ideology has fostered an anti-civic vision, not a vision of civic mindedness. In this ideology guns are primarily viewed as a means of repulsing government or other citizens, not a means for creating a common civic culture.… Modern gun control ideology has also failed to create a positive constitutional vision in which the Second Amendment is more than a vestigial part of our legal culture” (Cornell, pp. 214-15, quoted in Whitney, pp. 211-12).