Magazine | January 23, 2012, Issue

Pistol Whipping

Gunfight: The Battle over the Right to Bear Arms in America, by Adam Winkler (Norton, 361 pp., $27.95)

District of Columbia v. Heller and McDonald v. Chicago, the two recent Supreme Court gun cases, resolved a lot of conflicts, but they left a lot of work to be done. Local, state, and federal governments may no longer ban handguns, but they have to decide among other forms of gun control — with the threat of being overruled in court if they go too far. In Gunfight, constitutional-law professor Adam Winkler tells the story of the Second Amendment and makes the case that the Supreme Court did the right thing, both by protecting an individual right to bear arms and by leaving many forms of gun control on the table. Some topics deserve more discussion than they receive, the book’s whiplash-inducing lack of organization is frustrating, and an anti-gun bias is evident in places, but on the whole, Gunfight offers readers a concise and balanced account of where the American gun debate stands and how it got there.

Over the course of several decades in the middle of the 20th century, gun-control advocates managed to plant a great fiction in the mind of the American public: the idea that the Second Amendment protects only a “collective right” — the right of states to form militias — despite its unambiguous declaration that the right belongs to “the people.” Even numerous appellate courts, trying to construe a poorly written Supreme Court decision from the 1930s, adopted this interpretation. But by the time the Supreme Court heard its recent cases, this theory was dead; even the defenders of gun control made little use of it.

As Winkler explains, historical research had simply made this idea untenable. At the time of the founding, various sources — including commentators and Second Amendment precursors in state constitutions — made it perfectly clear that the Second Amendment protected an individual right, even if the main purpose of that right was to stop the federal government from disarming members of state militias. And Winkler traces the right to bear arms even farther back than that, noting that the English Bill of Rights protected individual gun ownership (at least for Protestants).

Winkler spends little time, however, on an alternative theory that developed: the “limited individual right” interpretation that was championed by numerous historians and other academics, and that animated the liberal judges’ dissent in Heller, the first of the two recent cases. In this interpretation, the right to bear arms is somewhat like the right to serve on a jury — it’s a right retained by individual people, but it’s merely a right to be considered for government service, in this case the militia. Winkler outlines the basics of this argument and notes that its proponents are a distinct minority, but more detail would have been helpful.

However, Winkler does a fantastic job of explaining how the Heller case — a challenge to Washington, D.C.’s handgun ban — made it to the Supreme Court. He interviews all of the participants and explains all of the tactical maneuvering and infighting on both sides. (The National Rifle Association opposed the suit, preferring to wait until the Supreme Court was more conservative; some gun-control supporters similarly urged D.C. not to appeal the case to the Court, fearing an adverse ruling.) He also gives a play-by-play of the arguments before the Court, right down to Clarence Thomas’s silence and Antonin Scalia’s openly helping the pro-gun lawyer, Alan Gura, argue his case. (“You want to say, ‘Yes.’ That’s your answer.”)

Winkler’s most valuable contributions, though, are his explorations of what the right to bear arms means in a post-Heller and post-McDonald world. As he points out, the fact that the Supreme Court has taken handgun bans off the table should not only quell the fears of gun-rights hardliners, but also cool the jets of the most extreme gun-grabbers. Thus are both sides pushed toward the middle, and forced to consider the more reasonable measures that are still on the table — and rightly so, constitutionally speaking.

As Winkler explains, gun control is much more a part of American history than some may realize — and he isn’t afraid to explore the dark side of gun control’s past. From the nation’s founding, despite the Second Amendment and similar provisions in state constitutions, state and local governments passed various laws restricting gun rights — from banning concealed carry, to limiting how ammunition might be stored, to confiscating privately owned guns for militia use. Few observers alleged that these provisions violated the right to bear arms. And in the South, governments and private militias went to great lengths to disarm blacks — a problem that helped give rise to the Fourteenth Amendment, which applied the Second Amendment to the states.

#page#Winkler is much better at explaining the history and constitutional law of gun control than at evaluating which kinds of gun control might actually work. In his rush to paint himself as a moderate crusader against the “extremes” (on both sides, but especially the evil National Rifle Association), he always sounds sensible, but his claims often fall apart on closer analysis.

For example, he spends much of his brief discussion of the Columbine massacre on Robyn Anderson, a friend of the teenaged killers who bought guns for them. Anderson didn’t want to buy guns through a federally licensed dealer, because that would have left a paper trail, so she bought them from a private seller instead, which could be done without a background check. Anderson later said that if an anonymous purchase hadn’t been an option, she wouldn’t have bought the guns. From this, Winkler argues that if private sales had to go through licensed dealers, a measure the NRA continued to oppose even after the killings, Columbine “might have been avoided.”

But this is unlikely, thanks to facts that Winkler doesn’t provide. Anderson was not the only source of Columbine guns; a different acquaintance sold the killers the TEC-9 that became Dylan Klebold’s primary weapon. And in a video released after the shootings, Eric Harris said that if they’d failed to get the guns the way they did, “We would have found someone else. . . . We would have gone on and on.”

And unlike the two men who helped the killers get the TEC-9, Anderson faced no repercussions for knowingly buying firearms on behalf of people who couldn’t buy them themselves. It’s hard to see how what Anderson did was better than selling a handgun to the killers directly, but it meant the difference between a six-year prison sentence and getting off scot free. Perhaps background checks for private gun transactions are a good idea. But they probably wouldn’t have prevented Columbine, and perhaps we should try less aggressive measures first — such as making sure that people who do what Anderson did get prison time.

Also lacking is Winkler’s discussion of the “cop-killer bullets” controversy of the 1980s. In his telling, some well-meaning legislators tried to ban handgun bullets made of unusually hard substances — which had been designed to help police officers and soldiers pierce heavy materials such as car doors and windshields, but also could pierce the body armor that police officers themselves wore. The NRA opposed the measure, offering ridiculous arguments: Why single out armor-piercing handgun bullets when most rifle bullets pierce armor too? (Because most criminals use easily concealable handguns, not bulky rifles.) And shouldn’t we be worried that banning ammunition whose only civilian purpose is to kill police officers will lead to a slippery slope? (Uh, no.) This annoyed a number of gun-rights supporters, especially cops, and eventually a measure passed.

While the NRA opposed some early measures to ban “cop-killer bullets,” it did not do so on principle. As Howard Kurtz wrote in the Washington Post in 1984, “All sides in the dispute say they support a worthy goal: protecting the police from bullets made of several hard alloys.” What the NRA objected to was the overly broad language in the early bills. The NRA helped improve the legislation, and the organization did not oppose the bill that eventually passed, though some more hard-core gun-rights groups did.

On the whole, Gunfight offers a wide-ranging and readable account of the struggle over gun rights in America, touching on history, politics, policy, and legal wrangling. It is a good introduction for newcomers to the debate, and even veterans are sure to find interesting new tidbits of information.

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