Guns, Violence, and The Second Amendment in Modern America
Guns and Violence in America Today
Yet another mass shooting. This time, on 1 October 2015, shots rang out at Umpqua Community College in Roseburg, Oregon. The gunman killed nine people, injured nine others, and then shot himself to death. The Roseburg shooting was the latest in a grim litany of mass murders on American soil. There is a long history of these events, but I distinctly remember a cold February day in 2007 in my hometown of Salt Lake City, where Sulejman Talovic killed five people and injured four at Trolley Square, before an off-duty cop shot the gunman to death. According to the Los Angeles Times, 22 rampage killings have occurred in the United States since 2007, killing 206 people and injuring another 200.
Over the last decade, a succession of these shootings has punctuated the national debate over constitutional rights and gun control. With each shooting, our national response has evolved into something of a ritual: an outpouring of grief and solidarity, followed by a call by some politicians and interest groups that something must be done, followed by a response by other politicians and interest groups that gun control is not the answer, followed by rebuttals until both sides in the debate realize that the ground hasn’t moved much despite the blood spilled, and the antagonists move onto other things to discuss, until the next killing. Twenty-two mass shootings later, we now live in a time where our political debate has burst forth from the confines of cable news, the Sunday political roundtables, editorial pages and talk radio and onto our newsfeeds and streams, all accessible on the palms of our hands. My friends and I have participated in this great democratization of the public debate, armed with links to articles we like, anecdotes from trusted friends, data that supports our case, and memes that distill our positions into clever and provocative phrases and images. I am a proud member of the 21st Century armchair punditocracy, and nothing gets us fired up like a rollicking gun control debate, perfectly timed to plumb the depths of the latest tragedy. The shootings, and our predictable responses to them, have happened before, and they will happen again.
This article is a rough attempt to set down my thoughts on the gun control debate, which have evolved over the dozen or so times I have engaged it, in my case, during periodic flare-ups on Facebook. I wrote a post on Facebook on 3 October, 2015, which inspired this work. The post can be found at the end of this article.
My position on gun control has not changed much in the last eight years; I might as well disclose now that I support reasonable gun control policies and that these policies can be effectively implemented in a manner consistent with the letter and spirit of the Second Amendment. While I hold steadfast in this belief, I have developed a deeper understanding of how, for good and ill, guns are fully a part of our cultural identity. Even before our formal declaration of independence, an armed citizenry was a fundamental part of American public life, and a linchpin of our national security. For over four centuries, we have been a nation of hunters and home defenders, and it is one of the ways in which we are exceptional. Certain aspects of this heritage deserve respect and even celebration.
However, no appeal to history, culture, tradition, or fundamental liberties changes the essential nature of personal firearms. Unique among weapons, guns are purpose-built to kill with ease and efficiency, which makes their accessibility and lethality a magnitude of order different than any other object we could wield as a personal weapon. We are exceptional among nations in how we treat and celebrate guns as an essential part of our liberty. We are also unique in our tolerance of gun violence in our country. Any productive discussion on the rights and obligations of gun owners must undertake an honest reckoning of the fact that, relative to similar countries, America is an exceptionally violent place.
Unfortunately, the gun rights debate is overly focused on the question of individual rights. Due to the influence of a sophisticated political movement, many well-meaning gun owners and gun rights advocates have adopted a distorted interpretation of the Second Amendment and a jaundiced perspective on virtually all gun control policies, armed with incomplete data and inaccurate assumptions about the principles behind the right to keep and bear arms. As a result, we as a country are making an implicit bargain that a certain level of violence is an acceptable cost of preserving our constitutional rights. This is a false choice, predicated on an assumption that the Second Amendment vests solely an individual right to personal firearms.
By failing to reckon with gun violence in America, this radical view of the Second Amendment is a fundamentally selfish one, seeking only to minimize burden on a gun owner, regardless of the costs to society. This not what the Founders of our country intended when they drafted the Second Amendment. Our constitutional right to keep and bear arms does not protect us merely as citizen gun owners; our right to defend our hearth and home is rooted in our membership in and duty to a community.
Making Sense of the Data Behind Guns and Violence in America
The decline in overall violence since the early 1980s is one of the great accomplishments of our time. The figure above shows a significant decline in assault deaths since 1980, a decline that tracks with the trends in other OECD nations. However, we are still an outlier. The sources of our violence, and the causes of its decline in recent decades, are nuanced and still a source of great debate in our country. But there are things about violence and guns that we are certain of — or, at least, we hear about often:
Some parts of America are more violent than others.
Looking at America as a series of regions is illustrative when examining violence in our country, especially when you evaluate the data against other considerations, including politics and policy. There is significant variation across the country in the number of assault deaths that occurred between 2000 and 2010.
The region with the highest number of assault deaths, the South, is also the region of states that have the least restrictive gun policies. Conversely, the region with the fewest deaths, the Northeast, tends to have the most restrictive gun policies, with the notable exception of New Hampshire. Gun policies at the state level are discussed in more detail below.
Although we have more guns than ever, gun ownership by household is as low as it’s been in nearly 40 years.
The Washington Post, citing data provided by the General Social Survey, reports that gun ownership is actually declining in the United States. In 1977, just over half of American households possessed a firearm. In 2014, 31 percent of households reported owning at least one gun. Despite the diminishing share of gun-owning households in America, most gun-owning households have more than one. Overall, there are over 300 million private firearms in the country: 114 million handguns, 110 million rifles, and 86 million shotguns. The Pew Research Center compiled a fascinating look at he demographics and politics of gun-owning households. Gun owners tend to be older; suburban or rural westerners, mid-westerners, or southerners; white; and Republican.
On a state level, there is a correlation between gun laws and gun deaths, but results vary by city.
On a per capita basis, evidence suggests that states with more restrictive gun laws tend to experience fewer gun-related deaths. The National Journal compiled a detailed dataset on the incidence of gun deaths (including homicides, suicides, accidents, and deaths whose cause was undetermined) by state, comparing the per capita number to a series of gun control policies the state chose to implement. The five states with the lowest gun death rate, led by Hawaii at 2.5 deaths per 100,000 people, all share a commitment to aggressive gun control policies. Additionally, the five states with the highest gun death rate — Arkansas, Alabama, Mississippi, Louisiana, and Alaska — tend to impose the least regulatory burden on gun owners. It is difficult to determine causation from this data, because it it so varied. Wyoming, for example, had a gun death rate of 16.7 per 100,000 people in 2013. That same year, the state’s murder rate was 2.9 per 100,000 people. Wyoming’s Division of Criminal Investigation reported that, in 2013, 13 of the 15 murders that happened in Wyoming involved a gun. And the rest of the gun deaths? Suicides or accidents, presumably.
At the metropolitan level, the story is a little different. Flint, Michigan had the highest gun murder rates in the country, at 62 per 100,000 residents, followed by Detroit at 54.6. Chicago, a city frequently cited by gun rights advocates as the reason why gun control laws don’t work, had a gun murder rate of 18.5 per 100,000 people in 2012 — much higher than the national average to be sure, but similar to what Mississippi experienced in overall gun deaths the following year.
Nationally, guns kill over 30,000 people per year.
Just after the Umpqua College rampage, CNN published the following chart, comparing gun deaths in America to deaths by acts of terror over the last ten years:
Since 2005, more than 30,000 people have been killed each year in the United States by firearms. Our death rate by acts of terror in that same time period has been minuscule. The intent of the chart is plainly political, but the point is valid nonetheless: In 2001, our political leaders forged a national consensus to fight terror using every tool at our disposal. Although they may not have known at the time that they were making a multi-generational commitment, 14 years later, we have spent $1.7 trillion prosecuting wars in Iraq and Afghanistan, killing nearly 10,000 American soldiers and civilians — not to mention continued instability, eroded civil liberties, abrogated treaties, a legacy of torture, and over 210,000 civilian deaths in Iraq, Afghanistan, and Pakistan.
Nevertheless, the War on Terror is now an enduring national policy advanced through multiple Congresses and two, probably three Presidents, justified in order to keep us safe. The chart above illustrates that there is another source of death in America, a vastly more significant one than acts of terror, that politicians are unwilling to confront. It lays bare the question: if guns kill so many Americans, why do we refuse to acknowledge the magnitude of the problem?
There are other things that kill tens of thousands of Americans each year. According to the Centers for Disease Control and Prevention (CDC), in 2013, 33,804 people died in traffic accidents, 38,851 people died of unintentional poisoning, 56,949 people died of the flu or pneumonia, and 75,578 people died of complications from diabetes. Each of these causes of deaths provokes a significant government response, involving what some argue to be intrusions on personal liberty: We live in a society where automobiles must meet safety standards, drivers must be licensed, insured, belted, and sober; vaccinations are often subsidized by the taxpayer and in some cases mandatory; toxic chemicals are heavily regulated or banned on the basis of quality data; nutrition information is posted on packaged foods; smoking and consuming alcohol are heavily regulated under the government’s public health authority; and we pay tax penalties if we refuse health insurance.
Many of these policies are controversial, but each was driven by a national consensus that the things that cause early mortality in society demand attention. And, many times, policy intervention works. Just as we’ve experienced a significant decline in violence in the last few decades, we’ve also enjoyed the benefits of much safer vehicles and roads. If the number of vehicle deaths in 2013 seems high despite significant government regulation, it is worth recalling that, in 1972, there were over 54,000 vehicle fatalities. There were also 100 million fewer Americans than there are now. And we drove a lot less then, too: we drove 1.2 trillion vehicle miles on American roads in 1972, as opposed to 2.9 trillion vehicle miles in 2013. If we were to treat the privately held firearms in the United States like we treat our automobiles, or our food and water supply, or our health, then perhaps we could find a way to reduce the extraordinary rate of gun deaths that occur each year.
But guns involved in crimes are mostly illegally obtained anyway, right?
Gun rights advocates make the claim that gun control laws are doomed to fail because most gun crimes are committed using illegally obtained firearms anyway. While this is held as definitive by many, good data on this question is hard to come by. A 2013 Daily Caller article referenced a 1997 Justice Department survey of convicts, 80 percent of whom said they obtained their weapons from friends or family, on the street, or from an illegal source. Even the Federal Government appears to be using old data: the National Institute of Justice, an arm of the U.S. Department of Justice, referenced a study from the turn of the century that stated that one in five guns used in crimes in Los Angeles may have been acquired legally through a straw purchaser. This is a question that begs for better, fresher data than surveys conducted 15 to 20 years ago. The Urban Institute has a handy primer on the best data available on where criminals get their guns. In their report, they mentioned the tentative nature of the data, stating, ‘Until we know more about the sources of crime guns, it will be difficult to devise and build consensus for effective, targeted policies that reduce unlawful access to firearms’.
The debate over gun policy suffers from a dearth of good data. This is intentional: Since 1996, Congress has prohibited the Centers for Disease Control and Prevention (CDC) from researching gun violence, and in 2011, Congress extended the funding ban to the National Institutes of Health (NIH). Representative Jay Dickey, who described himself as the National Rifle Association (NRA)’s ‘point person in Congress’ engineered Congress’ initial funding limitation on the CDC. Taking executive action over the objections of both Congress and the NRA, the Obama Administration in 2013 directed the CDC to resume its gun crime research effrorts. And, to his credit, the now retired Congressman Dickey recanted his position in an astonishingly frank Washington Post editorial in 2012, following the mass shooting in Aurora, Colorado. However, due to the complicated politics of congressional oversight, the CDC is still reluctant to engage in gun research despite the executive order mandating it.
The policies we implement as a community to regulate (or to de-regulate) gun ownership should be responsive to the best data available on violence and guns. Admittedly, the data above paint a nuanced and incomplete picture, due at least in part to political pressure by the NRA and republicans in Congress. What stands out, though, is that America is a violent country relative to its peers, that guns play a role in our exceptional violence, killing a significant number of Americans annually, and that there is some relationship between gun control policies and gun violence. We also know that gun-owning households are declining relative to all households in America, and that gun-owning households tend to be concentrated in terms of age, race, region, and political affiliation. All of this matters in a very important way as we pursue reasonable gun control policies. Data should inform the ethical considerations and value judgments at the heart of any good public policy. A good public policy on guns must acknowledge the high incidence of gun violence in certain parts of our country and the toll it takes. Beyond the data, though, is another source to inform our values: our founding principles. We now turn to an examination of these principles.
The Changing Meaning of the Second Amendment
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. — Amendment II to the Constitution of the United States of America
The Second Amendment of the United States Constitution guarantees an individual the right to keep and use certain personal weapons, subject to law. Interestingly enough, this standard wasn’t universally applied until 2008, when the United States Supreme Court took up the case of Dick Heller, a policeman who was expected to be armed while on the job but who, as a resident of the District of Columbia, was not allowed to keep a handgun in his home. Heller sued the District, and the Supreme Court, on a 5-to-4 decision, upheld his claim that the District violated his Second Amendment rights. Writing for the majority, Justice Antonin Scalia established a new doctrine for reviewing Second Amendment claims: the government can prohibit weapons that are “dangerous and unusual” but not those that are “in common use” — including handguns. The Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”
Crucially, for the sake of identifying workable gun control policies in the future, the Supreme Court offered the following in its Heller opinion:
…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
With Heller, the Supreme Court did not undertake a close examination of the role of the well regulated militia described in the Second Amendment, describing the first part of the sentence as a ‘prefatory clause’ that, while made redundant by the nature of our modern military, does not imply that the right to keep and bear arms itself is irrelevant in modern America. I wish the Court had gone further on this line of reasoning, because the effect of the majority opinion’s cavalier declaration on the ‘well regulated militia’ clause was to essentially sever it from modern judicial review of Second Amendment claims. This is unfortunate. While many Founders indeed saw an individual right to keep and bear arms as paramount, they construed those rights first and foremost to empower a community’s self defense.
The months leading up to the ratification of the Constitution were a contentious time in America. The Federalists had just proposed a new constitution that radically altered the relationship between the states and the national government. Many Americans were particularly concerned about establishing a standing army for their new nation. A pamphleteer named Philadelphiensis — an 18th Century armchair pundit — distilled the mood in the anti-Federalist camp with this question: “Who can deny but the president general will be a king to all intents and purposes, and one of the most dangerous kinds too; a king elected to command a standing army?” To many of this era, a standing army was contrary to the notion of liberty that lies at the heart of our political system.
In drafting the Constitution, the Militia was enshrined as a non-governmental, civic institution charged with providing for the common defense of communities, obviating the need for a standing Army. Congress had the authority to assemble an army to defend the nation, and also held the authority ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions’ (U.S. Constitution, Article I, Sec. 8). One of the most convincing arguments I’ve read about the drafting of the Second Amendment came from constitutional scholar Akhil Reed Amar, who wrote that the right to keep and bear arms was established so that ‘no Congress should be allowed to use its Article I, section 8 authority over the militia as a pretextual means of dissolving America’s general militia structure’ (Amar, 2005).
In the American political system, our liberties are protected by balances of power between our state institutions. In America, only Congress can pass a law, but the President can veto it and the Judiciary can subject it to constitutional review. The President is Commander in Chief of the armed forces, but only Congress can declare war. The Federal Government can only regulate commerce to the extent that it crosses state boundaries, but individual states cannot negotiate treaties with foreign nations. The legal structure in which the early United States defended itself was also subject to checks and balances: The Militia was to be the principal agent of the nation’s continuous self-defense, with an army being called up by Congress as necessary. The Founders enshrined two institutions to use lethal force, only one of which — the Militia — was a permanent entity. The Militia itself operated outside of the direct oversight of the federal government, except as authorized by Congress in the exercise of its war powers. By arming a civilian institution that is not directly accountable to the federal government except in times of national emergency, the Founders established a balance of power on the lethal use of force, depriving the President and Congress from having sole authority over the military. The Second Amendment affirmed that citizen militias were independent entities, and that the right of the people to keep and bear arms — in other words, to muster in defense of their community — could not be infringed.
Congressman Elbridge Garry of Massachusetts summarized the popular concern about standing armies during the public debate over the Bill of Rights in the House of Representatives:
What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now it must be evident that, under this provision, together with their other powers, congress could take such measures with respect to the militia, as to make a standing army necessary. Whenever government means to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. (Annals of Congress, 778 (17 August 1789))
The Founders’ desired relationship between citizens, militias, and the right to keep and bear arms, is not entirely lost to history. On Monday, 24 August 1789, one month before Congress dispatched the Bill of Rights to the states for ratification, the United States Senate took up the proposed legislation sent to them from the House of Representatives. At that session, they deliberated the following proposal of what would eventually become the Second Amendment:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person. (Senate Journal, 1:63(25 August 1789))
An early draft not only clarified that the Militia was composed of the body of the people, the same people who had the right to keep and bear arms, but also provided a citizen with the right to conscientiously object to military service. Then as now, striking the balance between religious liberty and civic duty was controversial; the Senate, meeting in secret, eventually struck the conscientious objector clause from the amendment and pared the language down to what it is today. Crucially for the purpose of fixing the original intent of the Second Amendment, legal historian Michael Waldman states that, during the House debate, ‘None [of the Representatives] mentioned a private right to bear arms for self-defense, hunting, or for any purpose other than joining the militia’ (Waldman, 2014). Moreover, the inclusion of a conscientious objector provision at a late stage suggests that Congress may not have understood the Second Amendment as it is conceived today: that its purpose is solely to empower an individual to protect him or herself from the government. Rather, the Founders saw in the Second Amendment a relationship between individual rights and civic responsibility.
This is not to say that private gun ownership wasn’t advocated in the raucous public debates at the time of America’s founding. Guns were commonplace among the populace, and principles of self-defense, including the right to arm oneself, was well established in English common law by the 18th Century. Gun ownership was likely assumed as a given; the debate over the right to keep and bear arms was fundamentally a question of the relationship between a newly-empowered national government and citizen militias. Over time, the debate over gun rights took on new contours as the Militia gave way to increasing urbanization, a standing army, and modern law enforcement.
Eventually, the right to keep and bear arms for home defense and for hunting was codified into state constitutions, particularly after ratification of the Fourteenth Amendment. By 2008, the Militia had become such an artifact that it was essentially ignored by the Supreme Court when it articulated a new standard of review for Second Amendment cases.
The Selfish Tyranny of Insurrectionism
In the last few decades, a new conception of our Second Amendment rights has entered the public debate: that an individual’s right to firearms is an essential freedom and a vital check against a tyrannical government. This idea grew from a radical fringe of the gun rights movement into a keystone of the NRA’s public relations strategy and a principal talking point among Republican politicians for the last few decades. In 2008, former Arkansas Governor Mike Huckabee declared that the Second Amendment ‘gives me that last line of defense against tyranny, even the tyranny of my own government.’ Joni Ernst, now a Senator from Iowa, stated the following at a NRA event in 2012:
I have a beautiful little Smith & Wesson, 9 millimeter, and it goes with me virtually everywhere…I do believe in the right to carry, and I believe in the right to defend myself and my family — whether it’s from an intruder, or whether it’s from the government, should they decide that my rights are no longer important.
In 2010, former Nevada State Assemblywoman and 2010 Senate candidate Sharron Angle said:
Our Founding Fathers, they put that Second Amendment in there for a good reason, and that was for the people to protect themselves against a tyrannical government…In fact, Thomas Jefferson said it’s good for a country to have a revolution every 20 years. I hope that’s not where we’re going, but you know, if this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies.
Huckabee, Ernst, and Angle articulated something called the insurrectionist argument or the right to revolution. To them, the right to keep and bear arms serves an explicitly political purpose. In her campaign against Senator Harry Reid, Angle put it best during a conversation with a talk show host: ‘I’m hoping that we’re not getting to Second Amendment remedies…I hope that the vote will be the cure for the Harry Reid problems.’ If the ballot doesn’t work, try a bullet. Fortunately, neither the first generation of American lawmakers, nor any court ruling up to and including Heller affirmed this view of the Second Amendment.
Nonetheless, insurrectionism gained popular currency among gun rights advocates in recent years and is now accepted as the moral cause underlying the right to keep and bear arms. To demonstrate how common and non-controversial this idea is in some quarters, I just quoted three constitutional officeholders who, in prominent campaigns, stated they reserved the right to take up arms against the very political system they also took oaths to protect.
A recent post on my Facebook newsfeed perfectly distilled this conception of Second Amendment liberties:
Note the Kalashnikov at the bottom of the image, used to protect against enemies, to preserve liberty, and to prevent government atrocities. The insurrectionist idea suggests that an armed populace is a political tool against the government. Insurrectionism also provides the justification to invoke the Second Amendment against any proposed gun regulation, because any government intrusion on the right to keep and bear arms is an assault against the liberties held by an armed populace. In this way, universal background checks, gun-free zones, restrictions on the sale of ammunition, and even insurance or licensing requirements for concealed carry permits are presumed unconstitutional.
It is incumbent on individuals to be armed, and to be prepared to take up arms if their rights are violated. This is the essence of the insurrectionist argument advocated by Huckabee, Ernst, Angle, and the NRA. Insurrectionists argue that the possession of firearms and the threat of their use is a form of political expression that is protected under the Bill of Rights — guns as speech. In 2015, the Utah State legislature commissioned its fifth annual commemorative firearm: An AR-15 enhanced with symbols of our state. Engraved on the stock is a honeybee and the motto of the Utah House of Representatives, vox populi. Voice of the people.
At the extreme of this argument is the open carry movement, whose adherents stage demonstrations where they bring their firearms with them to public places. Even the NRA dismissed these stunts as inappropriate and bad strategy. Yet in their repudiation of the tactic, the NRA was pleased that Texas, ‘independent-minded and liberty-loving place that it is, doesn’t ban the carrying of loaded long guns in public, nor does it require a permit for this activity.’ It may be rude, sure, to take everywhere, but unpermitted gun ownership is the benchmark of independence and liberty in the NRA’s America. Gun rights advocates have a term for this concept: constitutional carry.
The ownership of guns by law-abiding citizens has become, under the insurrectionist view, America’s first freedom, a liberty that is immune from virtually any government regulation. No other civil right is accorded this extraordinary status. Our right to speech is limited by time, place, and manner restrictions. Our right to property is limited by land use regulations, business license requirements, and is subject to permits and taxation. Limits are imposed on our right to vote, our right to travel, our right to privacy, and our right to assemble.
The insurrectionist interpretation of the Second Amendment fails upon a rudimentary examination of the Constitution. The Founders indeed enshrined in the Constitution a right to radically alter the form and composition of our government. Governments can be altered by elections, by speech and petition, and by a slow, deliberate lawmaking process by elected representatives. The Founders even established a public process for amending the Constitution. Each of these enumerated powers involves an engaged citizenry participating in the nation’s affairs.
To be sure, the Founders were advocates of revolutionary change when it was required, and offered an extensive legal justification for revolution in the Declaration of Independence. Exercising that right, though, is fundamentally an extra-Constitutional act, a forceful repudiation of law and obligation done only in the most extreme circumstances. It is also an act undertaken collectively, not individually. The Founders provided a template for revolution, but this too was a deliberative, political process, brokered by consensus, and undertaken by the People — not a group of individuals, but rather the entire community. The guns used to enforce the Declaration of Independence were essential but accessory to the political act of severing ties with Great Britain and forging a new nation. When the Founders drafted the Constitution, they did not enshrine the right of citizens to take up arms against the government; in fact, quite the opposite: we already know that the Constitution authorized Congress to muster the Militia, the same one referenced in the Second Amendment, to suppress insurrection.
The Founders saw the democratic process itself as the check against tyranny, rather than this modern notion of an armed minority of citizens who arrogate to themselves the right to use their weapons against their government. Governments change through an orderly and regulated process. The Founders did not assume that we could shoot our way to a more perfect union. The distinction here is subtle, but important. The democratic process involves the people, prudentially acting as a community to create a new political system, and the the insurrectionist argument involves the people, acting as individuals, asserting a right to use their firearms if they believe their freedoms are being infringed. The essence of the insurrectionist argument is that government institutions are not to be trusted; however, it is these very institutions that make our political system strong, resilient, and responsive. Insurrectionists claim to reserve the right to violence in order to protect liberty, but fail to acknowledge the role of community and institutions in shaping liberty. A nation of well armed freedom fighters with no regard for institutions or the limits they rightly impose on us would rapidly descend into anarchy.
The insurrectionist conception of our Second Amendment rights, so popular today, is designed to reduce or eliminate any regulatory burden on law abiding gun owners (excluding most felons and people with mental health problems), because these burdens are imposed on them by institutions that cannot be trusted. We are faced with a high level of violent crime and other gun deaths, politicians and lobbyists who thwart the collection of critical data, and a radical theory of gun rights that precludes any attempt at reasonable regulation. Although more than 30,000 people are killed by guns each year, any regulation is too much for a law-abiding citizen to bear. We are, at best, ambivalent about the toll this maximalist interpretation of our rights has taken on this country. This is a form of tyranny — a tyranny driven by the selfishness of a radical minority of gun owners and manufacturers and their well-organized lobbyists.
In the insurrectionist argument, the concerns of an armed individual becomes paramount over those of his or her community. The individual alone determines when the political process is to be short-circuited and a ‘second amendment remedy’ is to be invoked. Little wonder then that the contemporary gun debate is so broken. It is time to reframe this debate.
If we are to reduce the incidence of violence and death due to firearms while protecting the right of law-abiding Americans to keep and bear arms, we must rediscover the Founders’ intent that ‘the people’, the community and its institutions, is what the Second Amendment was designed to protect.
The Right of The People
The Second Amendment vested the American public with a right to keep and bear arms. Originally, the amendment was ratified to clarify that American citizens possessed the capacity to defend the country without need of a standing army. Militias were given special status in the Constitution as independent civic institutions that would provide for the country’s defense, without being subject to undue interference from a new and powerful federal government. Over time, the militia system was abandoned in favor of modern law enforcement and a standing, professional military. We have come a long way in 226 years. The standing army has gone from being an affront to liberty to becoming America’s most trusted public institution.
It is inevitable that, through this evolution, the meaning of the Second Amendment would change. It is also understandable that the Supreme Court in 2008 would find a way to apply the right to keep and bear arms to a contemporary situation while setting aside the prefatory language regarding militias. What was missing in the Heller ruling, and what is missing in contemporary gun rights advocacy is the acknowledgment of the community’s interest in the appropriate use of firearms. We may no longer have militias to regulate and focus the keeping and bearing of arms, but the community interest in gun rights and gun laws was no more essential in 1789 than it is today.
The Founders utilized an interesting phrase in the Second Amendment, as well as several other places in the Constitution and the Bill of Rights: The People. The Second Amendment states that the right to keep and bear arms is held by the people. The First, Fourth, Ninth, and Tenth Amendments also make explicit references to ‘the people.’ The Fourth and Fifth Amendments also reference a ‘person’ or ‘persons’ as the protected entity.
When the Founders referenced ‘the People,’ as opposed to ‘a person’ or ‘persons’, they were referring to the body of citizens that consent to their government, a community. Rights are individualized, but the community is at the center of the Constitution and thus our entire political order — it’s right there in the Preamble:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The Second Amendment states that right of the people to keep and bear arms, shall not be infringed. I take this to mean that the community — all of us, acting as the sovereign power in our Republic — holds the right to keep and bear arms. Consequently, the community can act to impose reasonable qualifications and regulations on those who seek to keep firearms, and individuals who possess this right are ultimately accountable to the community that provides for the common defense, promotes the general welfare, and secures the blessings of liberty to its members and heirs.
Policies on the use of firearms should be mindful of the data behind guns and violence in America, but should also respect the fact that Americans have the right to keep and bear arms, in defense of their homes and communities, subject to reasonable limits imposed by the community. A community has the right to impose licensing and insurance requirements on gun owners. A community has the right to decide whether its school teachers should be armed, and under what conditions that should be allowed. A community has the right to designate places where guns should not be allowed. A community has the right to determine categories of weapons whose access is not protected under the Second Amendment. A community has the right to obtain quality and timely data to inform the best and most appropriate gun policies, without interference from a gun lobby. Ultimately, a community has the right to find a reasonable balance between the rights and duties of the gun owners who are a part of it, and that balance may vary from community to community.
This idea I am advocating is not new; in fact, it is at least as old as the nation itself: Civic republicanism is a model of government that balances individual rights with civic duties, including the duty to defend our families, our homes, and our nation. At our founding, we were a nation of civic republicans. But this notion has lost favor in modern America. We are now a highly individualized and highly stratified nation and, in many places, our community bonds are tenuous at best. The current gun debate is a reflection of this broader trend in American public life. Reaffirming the roles and privileges of the community in our national debate over guns and just about everything else is a challenging task, because it requires us to engage each other better and to become stakeholders in our institutions.
The modern conception of the right to keep and bear arms is at odds with the civic republicanism that informed the drafting and ratification of the Second Amendment. Given the magnitude of the country’s gun violence problem, the many lives lost and families broken, it is time for us to place the community’s interests — whatever they may be — at the center of the gun debate, even if that means that a law-abiding gun-owning citizen is subject to additional scrutiny. It is time for us to no longer be selfish.
Allison, Jackson. the Lessons of Civic Republicanism. Retrieved 22 October 2015 from http://www.bigthink.com.
Amar, Akhil Reed. (2005). America’s Constitution: A Biography. New York, NY: Random House.
Horwitz, J. & Anderson, C. (2009). What is the Insurrectionist Idea? In Guns, Democracy, and the Insurrectionist Idea. (pp. 13–28). Ann Arbor, MI: University of Michigan Press. Retrieved 23 October 2015 from http://press.umich.edu.
Sleeper, Jim. A Civic Republican Primer. Retrieved 22 October 2015 from http://www.jimsleeper.com.
Waldman, Michael. (2014). The Second Amendment: A Biography. New York, NY: Simon & Schuster.
I’d like to thank the inestimable Amber Sawaya for her contributions to this, my first article on Medium.
Original Facebook Post — 3 October 2015
America is an exceptional country. One of the ways in which we, the greatest country on earth, is exceptional is our violence. It’s always been this way, but we are still #1 among developed nations when it comes to killing.
I believe the second amendment says what it says and I also believe that widespread gun ownership can be accomplished while also keeping them out of the hands of murderers.
I also believe that the way the NRA and their supporters interpret the second amendment is a perversion. It contributes to a culture of callous disregard of the impacts of widespread unregulated gun use.
The tacit bargain we are making is that a certain amount of lives lost is an acceptable price for preserving the constitutional right to bear arms. I’m sorry, but no. Not as the second amendment is interpreted today.
We Americans have the freedom of movement and the freedom to own property. Yet buying a car and operating it are heavily regulated. Why? Because absent such regulations, cars and drivers can be deadly. By the early 1960s in the U.S., there were over 50,000 deaths per year caused by vehicle accidents.
How did we respond? Smart public policies. Mandates for vehicle safety. Insurance requirements. Safer roads. And that grievous intrusion of our personal liberties — seat belt laws.
Now our roads are much safer.
We are way past the moment in our country where we need to take a similar approach to guns that we did with motor vehicles. But we’re not because there’s a sophisticated political movement in this country that has perpetrated lies about the constitution and about gun ownership to a lot of well meaning American gun owners. But folks, let’s not be selfish about our rights.
I do think that the resistance to regulating gun ownership is really a proxy for resisting government regulation in general. I get that…but there are times when a government is right to constrain our rights in certain ways — to regulate or license them, for example — to preserve the health, safety, and welfare of our citizens.
We do this with sanitation and public health. We do it with land and businesses. We even do it with speech (you cannot yell ‘fire!’ in a theatre). We do it with drivers and their cars.
But we can’t do it with guns? Why? Is it because the second amendment is the only constitutional right that is immune from any government regulation? Or is it because of extraordinary selfishness on the part of a minority of gun owners and their well funded advocates that has given rise to a culture of ambivalence and acceptance of mass murder in this country as an acceptable price for a maximalist and entirely unreasonable interpretation of a constitutional right?
I reckon it’s the latter. It’s time for us to no longer be selfish.