Guns Across America: Reconciling Gun Rules and Rights
Oxford, 2015, 288 pp., $24.95
Do Guns Make Us Free? Democracy and the Armed Society
Yale, 2015, 296 pp., $30
This Nonviolent Stuff’ll Get You Killed: How Guns Made the Civil Rights Movement Possible
by Charles E. Cobb Jr.
Basic Books, 2014, 320 pp., $27.99
The ultimate triumph of an interest group is to control the popular imagination and dominate the common understanding of relevant history. When a special interest can fundamentally alter our thinking, it achieves more than any momentary defeat or passage of a bill in Congress, more even than electing a President who agrees with it. These are not victories that get much press coverage; they seep into the public consciousness too slowly for that. But they transform the political landscape over time because they shape not only what supporters believe but also what potential opponents and the mass of citizens exercising their right to rational apathy can think about the issue. This is epistemology as politics: controlling the nature of what can be known. Do that, and it won’t matter if your side loses the White House for four or eight or even 12 years.
By this standard, no interest group in American history has been as successful as the National Rifle Association (NRA). It may be difficult to understand why the NRA deserves such praise, precisely because it has been so singularly successful at reshaping American thought on guns. That is why the first two books here under review, by Firmin DeBrabander and Robert Spitzer, are so important. They recover the true history of guns in America and their true place in American political thought. It is a history that has been almost entirely erased in the minds of all but the most attentive observers.
To see why, ask yourselves these simple questions: Were gun laws stricter in the years following America’s founding, or today? Were they stricter in 1950 or today? Aside from the impunity that killers of blacks enjoyed under Jim Crow, would George Zimmerman, the killer of Trayvon Martin, be more likely to face charges for using a handgun to resolve their conflict today, or in 1900? If you want to strap on a gun under your clothes and walk down a crowded street in Texas with that concealed weapon, are you more likely to face legal consequences today, or back in 1870?
The answer to all of these questions is that there has never been a period in American history where gun acquisition, ownership, and carrying have been easier for individuals, overall, than at this very moment. Federal gun law, of course, scarcely existed for much of American history, but state laws were far more powerful than state and Federal laws combined today. There are pockets of America where local laws are relatively tight, but there were also pockets throughout our history where laws were far tighter than they are in Chicago today. Spitzer’s Guns Across America eloquently and effectively demonstrates that gun control is as American as apple pie. Other books have grounded this observation in history, notably Adam Winkler’s 2013 Gunfight, but Spitzer more methodically lays out America’s long history of gun control. Gun control is actually older than America; colonial Virginia (1631) required that all new arrivals declare their guns and ammunition, and colonial New York (1652) forbid private citizens from selling them. Later, after independence, several states kept registries of guns, for purposes that included taxation and confiscation if required by the state militia. As guns became cheaper, more lethal, and more of a criminal problem, local, state, and Federal law altered to aggressively regulate the possession, sale, carrying, and use of firearms, including licensing and permitting. In particular, handguns and semiautomatics fell under heavy regulation by the states. In some states, outright bans on automatic and semiautomatic weapons existed for decades, without much public outrage or even concern.
Spitzer shows that gun control was not just historically acceptable to Americans but has worked effectively. He cites convincing studies that show the ten-year assault weapon ban worked to reduce gun crimes, particularly the ban on high-capacity magazines. If gun control didn’t stop criminals from accessing guns, he asks, why do New York criminals almost exclusively use guns bought in states with loose gun control, and not in New York, where gun purchases are more strictly regulated? What stops gun control from working is that gun control in one city or one state will never stop the flow of guns into the hands of the criminal and the mentally disturbed among us.
And what of the claim that gun laws strong enough to keep criminals from buying guns will prove an insurmountable or intolerable barrier to the purchase of guns by law abiding citizens? In what initially strikes the reader as gimmicky, Spitzer sets out to prove that the New York laws, far from being onerous, are sensible and reasonable. First, he builds an AR-15 assault rifle that is in compliance with New York’s laws, a rifle that would have greatly reduced the body count at dozens of mass shootings because it would have required the killer to pause and reload much more frequently. Then, he applies for and receives a pistol permit. The permit process would have posed a significant barrier to the mass killers in Aurora, Virginia Tech, and Tucson. Even the requirement that an applicant get four individuals to answer a three-page questionnaire about the applicant’s stability and background would have been very difficult for many of the deeply disturbed who so easily arm themselves in America. Some of them might not be able to figure out which four of their acquaintances, co-workers, and family members had not witnessed their deterioration.
Would the New York laws have stopped every mass killing? Certainly not. It seems that the mother of Adam Lanza, the Sandy Hook Elementary killer, would have passed easily, and he acquired his love of assault weapons and his access to guns through her negligent parenting. And some of the high-functioning disturbed could enter into the criminal underworld and make purchases, although doing so would radically increase their probability of apprehension prior to mass murder. But strict gun control doesn’t stop lawful gun buyers from acquiring weapons, and it can work to significantly reduce criminal use.
The Spitzer book is also invaluable in outlining how the popular understanding of the Second Amendment underwent a radical shift over the past sixty years. For most of American history, in the courts and in the legislatures, the Second Amendment was seen as intrinsically linked to its first clause, about state militias. This is only logical, since the debates about the Constitution and the Bill of Rights related to that amendment were focused on keeping the Federal government from intruding on state militia power. Indeed, the first time any law review article appeared announcing an individual right to firearms deriving from the Second Amendment was in 1960. Think of how far we have come, when, in Spitzer’s words:
The contemporary state of the gun debate in America, where, in the minds of many, any instance where a person’s hand comes into contact with a firearm is, perforce, somehow protected under the Second Amendment. . . . [I]t is now . . . that many have come to believe that gun laws somehow inherently tread on Second Amendment quicksand—that the right to bear arms is somehow absolute. Once again, we see an instance where the contemporary gun debate, purported to be rooted in the past, has virtually no connection to the actual past.
The recent passing of Justice Antonin Scalia has re-emphasized how strongly conservatives believe that the Second Amendment protects gun rights, since Scalia was the author of the 5-4 Heller decision, which, for the first time in American judicial history, struck down a gun ban based on an individual Second Amendment right of gun ownership. Moreover, as many legal analysts cackled, including conservative jurist Richard Posner, Scalia could only achieve this result by going against his own philosophy of constitutional interpretation, originalism.1 That originalism’s pope was forced to commit blasphemy, and oppose the historical understanding of the Constitution, demonstrates just how central gun rights have become to modern American conservatism.
Consider Russell Kirk, the great intellectual founder of modern American conservatism. In The Conservative Mind (1953), gun rights make no appearance. Barry Goldwater, who altered the face of Republican politics and was John the Baptist to Reagan’s conservative Jesus, also failed to even mention gun rights in his groundbreaking Conscience of a Conservative (1960). His 1964 nomination acceptance speech doesn’t bring up gun rights or the Second Amendment, even as he pointed to growing civil unrest and urban riots. Nor did Phyllis Schlafly find a moment to mention guns in her angry conservative manifesto, A Choice, Not An Echo (1964). Did these giants of conservatism ignore the Second Amendment because back then gun rights were sacred? Not at all. Gun laws were more intrusive than they have since become. What has changed is how conservatives think about guns.
Although neither DeBrabander nor Spitzer make this point, the obsession with guns starkly divides American conservatism from all other Western forms. Britain and America shared a common law heritage that recognized the right to self-defense. This common law coexisted with the slow evolution of firearm technology. During the 20th century, Britain and the United States both began to increase restrictions on handguns in particular, and guns more generally. Thanks to the NRA, the United States not only reversed course, but relaxed gun ownership and use more than it had ever been. Other Western democracies either never had broad citizen ownership of guns or heavily regulated it at about the same time as did the United Kingdom. This leaves the United States alone, but not alone because of the Constitution or some oddity in our frontier history. Australia and Canada were also frontier nations, where firearms were more useful than in, say, Liverpool, in 1850. But today both regulate guns in ways that would be politically impossible in the United States. What’s different here is the domination of our political culture by a radical armed libertarianism that remains on the outer fringes in other nations. It is American conservatives who are pursuing a radical social experiment of widespread, largely unregulated gun ownership, and American liberals who are seeking to return to a more traditional understanding of gun control.
The NRA’s current slogan, “America’s first freedom,” demonstrates the awareness with which they are falsely inscribing gun rights in our shared history. The belief that the Founders saw guns the way the NRA does is so strong that an entire industry of fake quotations has emerged in which modern right-wing views about guns are attributed to the Founders. Suppose the gay rights movement attempted to show not that the Fourteenth Amendment should be interpreted to cover homosexuals as a class, thus guaranteeing homosexual rights in marriage, but that the Founders saw homosexual rights as intrinsic to the Constitution? That sexual rights are “America’s first freedom,” from which all other rights derive? And promptly went about creating fake quotes that showed that Washington, Jefferson, and Hamilton were pro-gay rights and were indeed active homosexuals. It is only a little more crazy to try to convince the American people that George Washington might be sexually compatible with NRA board member Ted Nugent than that Washington would agree with the buffoonish Nugent about gun rights.
This is where DeBrabander’s Do Guns Make Us Free? is essential. As befits a professor of philosophy DeBrabander is interested in how we think about guns in the abstract and what function they purport to serve in our republic. For the NRA, it is the first freedom in large part because it makes the government wary of intruding on all the other rights, out of trepidation that the armed citizenry will revolt. DeBrabander devastates this popular misconception, in both history and practice.
The Founders simply didn’t think of guns that way, nor did the thinker who shaped our Founders’ thought more than any other: John Locke. To the contrary, for Locke, escaping a situation where everyone felt it necessary to be armed was one of the reasons we enter civil society in the first place. Many of the Founders did believe that armed state militias would be a necessary check on the Federal government on behalf of the states. But neither Locke nor the American Founders advocated rebellion as a check on republican government. Indeed, men who experienced civil war were more likely to support any peaceful means of resolution, and so the heroes of the revolution against Britain promptly and brutally suppressed both the Whiskey Rebellion and Shay’s Rebellion. These armed insurrections would have fit the NRA’s definition of “Second Amendment remedies,” but of course there was no NRA at the time and none of the Founders thought in such terms. Only one of the Founders countenanced taking up arms against an elected republican government over matters of taxation: Thomas Jefferson. DeBrabander shows, via Hannah Arendt, how the French Revolution altered Jefferson’s beliefs about insurrection and disorder as a check on government.
Moreover, if the pathetically weak Federal government in 1787, and the scarcely stronger one of 1791, could put down rebellions by armed citizens, with the two sides essentially using the same weaponry, how could citizen possession of assault weapons today serve as a check on a Federal government that possesses tanks, jets, drones, and the rest? The resources available even to the governor of Rhode Island would swiftly defeat any modern-day Daniel Shay.
And even in authoritarian states it is the unarmed demonstrator who is usually most effective. Consider, DeBrabander asks, the lone Tiananmen protester with his grocery bags staring down a tank. Even today, the Communist government forbids the dissemination of photos of that heroic confrontation. Had that anonymous soul been armed with an AK-47, the immediate outcome would have been a rapid bloodletting, and the image would today be used in cautionary pro-government propaganda. Should a dictatorial government ever take over Washington, it will pray that resisters are dumb enough to take up arms, for that would put tyranny on the side of order so as to make it look momentarily moral. Cliven Bundy and progeny to the contrary, armed civil disobedience is an oxymoron.
If guns are such a check on government, DeBrabander also asks, why didn’t they even come up in discussion as the U.S. government debated and then imposed the Patriot Act and other responses after 9/11? Whatever we may think about the actions taken in those frightening days and months, the Federal government’s direct power over citizens escalated dramatically. The views of gun owners were no more influential than the views of the unarmed as we decided to tolerate government-authorized torture, routine secret surveillance, warrantless detentions of American citizens, and much more.
DeBrabander also brilliantly outlines the philosophical implications of the NRA’s crime rhetoric. The gun lobby preaches an all-encompassing fear, with ever more gun ownership the only logical solution. School shootings? Armed guards in every school. Workplace massacre? Let workers keep their arms on the job. Armed home invasions? We should all have our weapons with us at all times in the home. Women shot by abusive partners? Guns would equalize the battle of the sexes, if only women would arm themselves more. The inexorable power of this argument is increasingly removing any limits on the carrying of weapons: at concerts, on campuses, in churches, even in bars.
The social science data here is not ambiguous. A gun in the home is much more likely to be used against a battered woman, picked up by a visiting toddler, deployed by a drunk, stolen by a burglar, fired into the mouth or temple of the depressed, or accidentally discharged by its owner. A gun in the home or carried in public may occasionally deter a crime, or stop one in progress. But look, too, at the plethora of accidental shootings by fully trained police in just the past few years. If police often fail to distinguish between real threats and 12-year old Tamir Rices, if they far too often gun down innocent life, do we truly believe that common citizens will somehow do better? The NRA, inexplicably, does.
After every tragedy in which a child finds a gun in a home or a car or a handbag, and kills herself, a sibling, or an adult, the police refrain is to call on citizens to keep their arms locked away and their ammunition in a separate location. But if guns are intended to be used against home invaders, how much good will they do locked away? The practices of responsible gun ownership directly contradict the putative anti-crime use that is the second most common argument for gun rights. There is almost a mathematical relationship between the availability of guns and the likelihood of their misuse. Moreover, if the NRA succeeds at making guns more and more common, will criminals simply choose other professions? Isn’t it much more likely, DeBrabander argues, that they will acquire greater firepower, and use it with greater alacrity? Criminals will shoot first and never ask questions later, which will lead to even more tragedies on both sides of the law, as frightened gun owners respond accordingly.
Do Guns Make Us Free? is the most sophisticated of the three here under review. DeBrabander ranges widely and effectively from Machiavelli to Foucault, and directly addresses the claims of gun advocates like John Lott and Charles Cooke. The book is eminently readable and persuasive and, unlike Spitzer’s, does not tread upon such a well-beaten path. In one of his more brilliant sections, DeBrabander shows that “Stand Your Ground” laws are increasing lawlessness, that they have no basis in our legal or philosophical tradition, and that they end up leaving the common citizen with more freedom to shoot than a police officer.
His most impressive accomplishment, though, is to marshal the likes of Aristotle and Arendt to ask what, precisely, guns do to free speech? The NRA puts guns ahead of voting, arguing that only guns can stop a government before its corruption ends freedom. But for DeBrabander, quoting Arendt, violence is “mute” as speech, and what is a gun at a political protest but a demonstration of intent to use violence, if not now, then if current demands are not met? If guns become a regular part of the American political and social environment, this will change how political speech takes place. Currently, only a small fringe considers it appropriate to be armed at a political demonstration. But if that fringe succeeds at making guns ubiquitous, why wouldn’t protesters favoring an increase in the minimum wage also need to be armed, to demonstrate their seriousness of purpose? And the counter protesters? Anyone with even a glancing knowledge of the history of American unionism in West Virginia would understand why few conservatives in that era were in favor of armed demonstrations.
Armed demonstrations feature prominently in a recent book arguing that the nonviolent civil rights movement was paradoxically built on guns. Charles E. Cobb, Jr.’s This Nonviolent Stuff’ll Get You Killed has been taken as the ultimate confirmation of NRA views by pro-gun writers. The raves include one by David Kopel of the Independent Institute, who crowed in the Spring/Summer 2015 issue of the Cato Journal that
the exercise of Second Amendment rights was a sine qua non for the survival and success of the Civil Rights Movement. . . . Political power did grow out of the barrel of a gun—not in the Maoist sense of using guns to suppress the political expression of other people—but in the deeply American sense of using firearms to defend the exercise of other fundament rights, such as freedom of speech, assembly, and voting.
But read carefully, This NonViolent Stuff’ll Get You Killed constitutes a clear refutation of the utility of civilian guns in American social movements. Cobb begins with the largely unknown history of guns in the Reconstruction Era. Blacks, briefly and imperfectly empowered by Union forces, depended on their own guns for their safety and authority as the Federal government gradually began pulling back. Did gun ownership by some blacks in the South briefly restrain mobs of white terrorists intent on retaking the government? Yes, unquestionably. But the end of the story was never in doubt once Washington wavered in its commitment to black rights. When local authorities and the more numerous armed whites faced armed blacks, the result was typically a massacre followed by hangings, as in Colfax, Louisiana.
Cobb’s main focus, though, is the movement to which he had a front seat, the civil rights movement. As a former field secretary for the Student Non-violent Coordinating Committee (SNCC), his personal bravery, and service to his race and nation, cannot be questioned. He also has the former activist’s admirable desire to name all the foot soldiers he can remember. But this isn’t a memoir; it is rather a collection of anecdotes vaguely related to the bizarre idea that guns were essential to the civil rights movement. Cobb returns again and again to similar or precisely the same anecdotes that show that some of the people who tried to bring down white supremacy in the South relied on guns for personal protection. This included even Martin Luther King, Jr., who otherwise strongly opposed responding to violence with violence. Cobb goes so far as to assert that the right of gun ownership was as important to the cause as the right to vote.
Cobb proudly tells us that for most of the dark night of Jim Crow oppression, southern rural blacks still retained their right to guns. But if gun ownership is a check on government, why did it fail to provide any check on black suffering at the hands of a racist white government? And has there ever been an American government more fascist, more dictatorial, than white rule of Mississippi or Alabama from 1877 to 1964? Yet those governments, Cobb tells us, largely did not restrain gun ownership by blacks—which defangs the NRA’s core argument that dictatorial governments fear citizen gun ownership.
It is inarguable that in a few incidents blacks successfully used guns to scare off nightriders and Klansmen intent on murder and lynchings. But by his own admission, blacks had guns for decades and yet made almost no progress on the long march to freedom. By contrast, with non-violence as the central tactic, they moved from Montgomery bus boycotts to the Civil Rights Act in less than ten years. And what blacks achieved with the vote in just a few decades in terms of protecting their own interests may serve as the ultimate debunking of gun ownership as the “first freedom.” Guns could neither deliver the right to vote nor deliver the political benefits that voting, once achieved, granted almost immediately.
The tension within the civil rights movement over the role of guns came to a boil in the March Against Fear in 1966. Cobb believes that the decision to allow the Deacons of Defense, an armed quasi-militia, to march carrying guns, guaranteed safety and security. Kopel and others seem to have accepted his account. But as any standard history of the civil rights movement could tell Kopel and Cobb, guns failed to protect the marchers from Mississippi’s racist authorities, who viciously attacked the marchers in Canton with tear gas and batons, severely injuring several marchers. Cobb deceptively observes that, “all confrontations stopped far short of shootouts . . . the Deacons had to be restrained in their use of defensive force, lest they find themselves in an unwinnable fight against white authorities.”
Kopel declares victory, since neither side fired a shot. But this was because the Deacons recognized that guns could not protect them against the state and the hoodlums working with it. Had guns been used against the state actors, either here or at any other point in the civil rights movement, the outcome would have been a prolonging of white rule via a regional backlash that would have left parts of the South resembling Bosnia in the early 1990s. In other words, guns didn’t provide security from state violence any more than non-violence did, nor did they provide a way to bring down the white power structure, which non-violence ultimately did.
Additionally, the responses of national media and Federal authorities were far less sympathetic than when violence was used against unarmed demonstrators in Selma, Birmingham, and elsewhere. As DeBrabander would have predicted, armed demonstrators were less effective, and no safer. Indeed, many authorities on the civil rights movement cite the March Against Fear as a turning point when the combination of armed blacks and the slogan “black power” alienated many potential white supporters.
The attempt by Kopel and many others, along with the assistance of useful idiots like Cobb, to make even the non-violent civil rights movement part of the gun history of America truly shows that the gun lobby respects no limits in its willingness to rewrite history on behalf of its cause. Neither fact nor principle is allowed to stand in its way. If modern conservatism has stood for anything, it is that excessive Federal power is wrong, and states’ rights should be respected. Yet since state standards for permitting the open and concealed carrying of guns differ, the NRA is attempting to nationalize right-to-carry laws, by forcing every state that allows any carrying to accept the carrying license of every other state. A state that effectively prevents carrying of guns by the mentally ill is then forced by Federal law to permit the mentally ill from another state to legally arm themselves. One wonders if any principle held by modern conservatism could survive a conflict with gun rights. If abortionists began snuffing out fetal life with handguns, would the NRA support it as part of our “first freedom?” Perhaps the NRA would advocate arming the unborn, since the solution to a bad abortionist with a gun is an armed fetus with a bigger caliber.
As I type these words, in my own liberal enclave of Arlington, Virginia, a gun activist is seeking to open a gun store “one traffic light from the District of Columbia.” He told the Washington Post that the actual owner would be his 16-year-old daughter, who was inspired by Donald Trump to “turn her passion for sporting arms into a thriving firearms business.”2 This is America in 2016, where a teenager can aspire to own a store selling military-grade weaponry. The father could not be more transparent in his effort to normalize gun ownership. If a teenybopper in liberal Arlington can sell AK-47s, surely they are not dangerous. This is the gun lobby spiking the football in the end zone of American politics, when they are already ahead by six touchdowns with only minutes left to play.
These three books in very different ways lay out why it will be so difficult to reverse the political epistemology that the gun lobby has erected. Already this year the body count of our unique commitment to extreme gun rights has reached dizzying heights. No other advanced industrialized nation has such high gun death rates from suicide, homicide, and accident. No other rich country has such easy access to guns, or is so dramatically expanding the places to which these weapons can be taken legally. The bloody carnage will continue, new Sandy Hooks will come, six-year olds mercilessly ventilated by bits of metal spewed out of a semi-automatic rifle unfit for civilian ownership in a civilized society. The bodies will hit the floor, again and again, human sacrifices placed upon the altar of our collective fealty to a past that never existed. An ever more heavily armed future looms like nirvana for the gun lobby, but for the rest of us it will seem more and more like Somalia.
1Richard Posner, “In Defense of Looseness,” New Republic, August 27, 2008.
2Patricia Sullivan, “Gun store operator, neighbors may meet over Arlington dispute,” Washington Post, February 27, 2016. Legally, of course, no 16 year old can hold a Federal Firearms License, so it is not entirely clear what owning the store will entail for this as yet unnamed teenager.