Gun Fight: The Battle Over The Right To Bear Arms in America

Adam Winkler, “Gunfight: The Battle Over The Right To Bear Arms In America”, 2011, W.W. Norton, 302pp plus addl 40 pages of notes.

Why is it that the nutso’s generally control public discourse?  For instance, the 2^nd amendment discussion, the subject of this book: One side wants to get rid of all guns, unless a State militia keeps them at their building—the other wants the right to have any gun, including machine guns.  At least these are the sides the media reports much to the puzzlement and exasperation of the majority of the nation.  The author of this book, Constitutional law scholar Winkler, has written a thorough and well-documented history of America’s centuries-long battle over the right to bear arms.  Contrary to the extremist views of hard-liners on both sides, Winkler shows that Americans have always had a reasonable right to bear arms: a right that balances gun rights with gun control.  This book by this well-regarded constitutional lawyer traces that balancing history of rights up to and including the 2008 Supreme Court District of Columbia v. Heller decision. 

Columbia v. Heller was decided 5-4; justices in the majority were Scalia, Roberts, Thomas, Alito, and Kennedy.  The Second Amendment, they held, protected the right of individuals to own guns for self-defense.  The four most liberal justices dissented (Stevens, Breyer, Souter, and Ginsburg).  Scalia, who wrote the majority opinion, did indicate that the justices deemed many forms of gun control to be constitutional.  Nothing in the 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.’  Scalia also suggested that regulation of ‘dangerous and unusual weapons,’ such as machine guns, was constitutionally permissible.  Scalia implied that the right recognized by the Court might be restricted to the home.  Individuals did not necessarily have the right to possess a weapon in public (p. 278). Both the left and right nutso’s lost—ain’t that grand?

(As an aside): I would certainly like to read a similar history detailing the events leading up to Roe v. Wade, if one exists—that conflict is on a par with the 2^nd amendment conflict.  

I am currently reading Michael Waldman’s book “The Second Amendment” but thought I should repost this previously posted review of “Gunfight” given the current controversy and the superior credentials on this subject of the author.

My Notes:

Pg. x:  For all the attention paid to whether the ambiguously worded 2^nd amendment guarantees individuals a right to own guns or just protects states’ right to form militias, the right to bear arms has never rested primarily on the U.S. Constitution.  The vast majority of states—forty-three as of this printing—protect the right of individuals to bear arms in their own state constitutions, meaning most Americans would enjoy the right regardless of the Second Amendment. 

Pg 4:  The 2^nd Amendment provides ‘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.’  The District of Columbia (Washington D.C.) outlawed handgun ownership and required that all long guns—rifles and shotguns—be kept disassembled or secured with a trigger lock.  Therefore the District effectively made it unlawful to protect yourself in your own home using a pistol or rifle.  (Chicago had implemented the same restriction).

Pg. 7:  The NRA was not happy that lawyer Alan Gura was challenging this District of Columbia law and they did everything they could to try and stop him.  Allegedly, this was because of their fear of losing and having the Supreme Court declare in no uncertain terms that the Constitution did not protect an individual’s right to bear arms. Gura suspected that the NRA was actually fearful its fund-raising machine might grind to a halt if the Supreme Court held that the Second Amendment guaranteed an individual’s right to own guns.

Pg. 9: Opposition to gun control stirred one radical, Timothy McVeigh to declare war on the federal government, leading to his bombing of the Murrah Federal Building in Oklahoma City. 

Pg. 10:  Disarmament was the motive behind the D.C. laws challenged in the Heller case.  The D.C. city council hoped that its ban on handguns would trigger a nationwide movement to eliminate civilian ownership of guns.  (Yet a decade later, in spite of this ban, the District came to be known as the ‘murder capital of America.’)

Pg. 13:  Few people realize it, but the Ku Klux Klan began as a gun-control organization; after the Civil War, the Klan and other violent racist groups sought to reaffirm white supremacy, which required confiscating the guns blacks had obtained for the first time during the conflict.  To prevent blacks from fighting back, the night riders set out to achieve complete black disarmament.

Pg. 24:  Prior to Heller, the federal courts for seventy years said that the Second Amendment protected only the right of states to form militias, like the National Guard, and not of an individual right to bear arms for self-protection.

Pg. 29: In the U.S. guns are associated with approximately thirty thousand deaths annually.  These deaths, however, do not all involve criminals killing innocent people.  More than half of all fire-arms fatalities each year are suicides, not homicides.  Of the remaining gun deaths, the vast majority involve criminals shooting other criminals.  In urban areas where gun crime is most common, upwards of 75 percent of gun homicides feature a victim with a prior criminal record.  The gun problem in America is largely a suicide problem and a gang problem.

Pg. 97:  In the 1950s and 1960s, the judicial activism of the liberal Warren Court in the fields of race discrimination, sexual privacy, separation of church and state, and criminal defendants’ rights sparked a backlash.  The so-called New Right that eventually lifted Ronald Reagan to the presidency began to coalesce around social issues like busing, abortion, school prayer, and ‘law and order.’  It wasn’t enough to try to dismantle the rulings of the Warren Court.  Conservatives needed ‘counter rights’ of their own to be protected by the courts: the right to life, the right to religious expression, victims’ rights, and property rights. These rights were portrayed as part of the ‘original intent’ of the Constitution’s framers. 

Pg. 141:  The Fourteenth Amendment came to be recognized as the single most important provision in the Constitution.  ‘All persons born or naturalized in the U.S…are citizens of the U.S. and of the State wherein they reside.’  (The amendment nullified the Dred Scot decision).  Additionally, States couldn’t trespass on the fundamental rights of individuals listed in the Bill of Rights. ‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S.; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’  Before the 14th amendment, the bill of rights applied only to federal laws and actions—not to states.  Because the southern states weren’t likely to agree voluntarily to these provisions, Congress conditioned the termination of military occupation on the South’s ratification of the Fourteenth Amendment.

Pg. 163:  The notorious Dodge City turns out to be not so notorious at all.  Between 1877 and 1886, its height as a cattle town, only fifteen murders—a rate of 1.5 per year—were reported.    Similar rates were discovered in Tombstone and Deadwood.  The very crimes that Americans today consider a legacy of the Wild West were almost unheard of in frontier towns.  Frontier towns handled guns the way a Boston restaurant today handles overcoats in winter.  New arrivals were required to turn in their guns to authorities and were retrieved when leaving town.

Pg. 213:  One reason the Supreme Court hadn’t ever decided any Second Amendment cases was that it didn’t have to.  Prior to the twentieth century, gun control laws were typically adopted by state and local governments, not Congress.  Up until the Fourteenth Amendment, the Second Amendment did not apply to states.

Pg. 235:  In 1956, after his house was bombed but before he fully adopted Gandhian nonviolence, Martin Luther King Jr. applied for a permit to carry a concealed firearm in Montgomery, Alabama.  Kings application was denied.  From then on, armed supporters took turns guarding King’s home. King endorsed the right to defend one’s home and family when attacked. 

Pg. 297:  Constitutional scholars today argue that cases like Heller are far more typical than cases like Brown.  Historically the Supreme Court lags behind social movements rather than leads them.  From birth control to women’s equality to gay rights, the Court tends to invalidate laws that are exceptional, outliers defying a broader national consensus.  When the Court gets out in front of national commitments, as it did in Roe v. Wade, the justices invite uncomfortable charges of judicial activism and often provoke a backlash.  A nominee to the Supreme Court with esoteric or publicly unappealing views—like a Robert Bork, who rejected the idea that any right of privacy was embedded in the Constitution—will not be easily confirmed.  The District of Columbia’s law concerning gun regulation was a quintessential outlier.  Other than Chicago, DC. was the only major city in the country to effectively outlaw the possession of handguns by ordinary civilians.  

Addenda:  Newsweek Oct 4th 2019 edition reports: for every 100 Americans, 120.5 guns are owned; we have more guns than people, 393,300, 000 guns.