Constitutionally Incapable

08.28.2002 | SOCIETY

On August 15, in a California courtroom, Charles Andy Williams was convicted of murder and sentenced to fifty years in prison. Williams, for anyone who doesn't recall, was the 15-year old high school student, often tormented by bullies, who opened fire on a California campus last year, killing two people and injuring eleven more. On his arrest at the scene, he told police officers that he had planned to kill himself as well, but when the moment came lacked the nerve. His courtroom apology, given in the moments after his conviction, was wracked with sobs.

Less than two years ago, it seemed, we were on the brink of a serious discussion about the role of guns in America. A string of grisly killings, coupled with a President who saw opportunity in battling the National Rifle Association, had given new momentum to the seemingly endless and often fruitless quest for more gun control. But windows open and windows close, and at the end of that particular bout of self-examination we had no more meaningful legislation than we had before it started.

Proponents of gun control tend to blame the NRA for this, and the NRA, with its hyperactive lobbying campaign and its assiduously well-organized members, certainly owns a lion's share of the blame (or credit, depending on one's perspective.) Other factors played a role, though. The election of President Bush didn't help, partly because Bush himself supports the individual's right to bear arms, but mostly because he chose as his Attorney General John Ashcroft, a notoriously pro-gun official. Ashcroft hadn't been in office long before he quietly reversed the Justice Department's longstanding legal opinion on the Second Amendment, eliminating the idea, set forward by the Supreme Court in United States v. Miller, that the amendment is a guarantee only of "collective rights." The Miller decision says the amendment prevents the federal government from interfering with states' forming militias, but it does not prevent it from regulating individual ownership arms.

I tend to favor that interpretation, but I also don't put too much stock in Miller, largely because by the time the Court got the case Miller himself was dead, and as such couldn't offer a very strong pro-gun argument. I am more troubled by Ashcroft's selective defense of the Constitution. In the aftermath of September 11, when he seemed determined to apply elasticity to the entire the Bill of Rights--when he wanted, it seemed, to know everything about anyone in the US who hailed from a Middle Eastern country--he explicitly refused to find out if they owned guns. How this stood up, to standards of logic or consistency, was hard to fathom. Where the Fifth Amendment could be stretched and shorn, and the already-tattered writ of habeas corpus could be put through new gymnastic contortions, the Second Amendment, apparently, could not be touched.

But for a while now, this has been the case. The Second Amendment enjoys a rather exalted place in American jurisprudence precisely because, it seems, no one can agree on what it means. A few days before Charles Andy Williams sat in the dock awaiting judgment for his crimes, I was given an article, written by the economist Robert Solow, about the proper place for "intellectual ancestors." Solow was talking specifically about the land reformer Henry George, but in the article he took some time to discuss the downfall of Marxist economics. Whatever promise Marxism had, Solow said, fell apart when its original form, which as an innovative and highly learned form of social science inquiry, was replaced by a political movement. When that happened, the ideas of Marx himself stopped being a framework to apply to the still-moving world, and instead became considered incontrovertible truths. Das Kapital, Marx's signature contribution to political economy, stopped being a useful starting point for the analysis of current events, and started being a political Bible. Marxist scholars, as a result, are often stuck making two arguments: that first, what they say is consistent with what is in Das Kapital; and (only secondly), that what they say has a bearing on the real world.

The parallel here is obvious. If Marxism is frozen in 1859, then our debate on gun control may be stalled somewhere around 1790. On both sides of the issue, scholars and advocates constantly stake claim to the Second Amendment, 27 words that--let's face it--would have earned an F from any respectable composition teacher. Advocates of stricter gun laws interpret the amendment as defending the need for state militias, while their adversaries claim it leaves unfettered both militias and an individual's right to carry.

There are points to be made on both sides. A favorite piece of propaganda brandished by gun control opponents is collection of quotations, from the Founding Fathers, on the meaning of the right to bear arms. The quotes almost unequivocally support an individualist interpretation. Alexander Hamilton, for instance, is quoted as saying "The best we can hope for concerning the people at large is that they be properly armed." (It is an open question as to whether Hamilton felt the same way after Aaron Burr gunned him down in a duel). And Thomas Jefferson notes that "the gun" should be "the constant companion to your walks." Whether these quotes are in their proper context is something I'll not delve into; for the moment they can be taken at face value. The gun control side, for its part, enjoys trotting out one of James Madison's earlier drafts of the Second Amendment, which leaves little doubt as to its intent:

The right of the people to keep and bear arm 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.

It doesn't get much plainer than that. On the other hand, that isn't what's on the books, and no one can say with certainty that Madison's clear sentence wasn't changed into the muddled one we have today precisely to safeguard the individual rights he left out. Today's Second Amendment, in other words, reflects the deliberate insertion of individual rights. I can't say I find that idea very persuasive, but it is a powerful one, and scholars like Stephen Halbrook have made careers finding evidence for it.

But this brings us back to the original question: how appropriate is it for us to decide the question of weaponry using a two hundred year-old document? One doesn't often compare the problems of Constitutional law with those of Marxist economics, but the parallels are again strong. Marxism failed to accurately predict the impact that technology would have on the industrial world. The Founding Fathers, it could be said, failed to do the same with firearms. They never anticipated the Glock 9mm or the AK-47, so whatever the intended meaning of the Second Amendment, it also fails to account for the forces that shape public safety today.

Most of the soul-searching that has fueled gun control efforts has arisen in the aftermath of ghoulish mass killings, like those at Columbine High School in Littleton, Colorado, or in the Edgewater office complex at Wakefield, Massachusetts. It is not inappropriate to point out that at the time of the Constitution's writing, such occurrences were inconceivable. Colonial pistols and muskets didn't lend themselves well to violent rampages; they were cumbersome to carry, slow and awkward to load, and notoriously inaccurate. The smoke generated by the first shot (which often missed) tended to obscure the target, and ruled out the possibility of a second shot correcting the error. A hothead in a bar could haul out a flintlock and shoot the person next to him, but he'd likely be overpowered immediately afterward. And as for a man with a musket--a person with a rifle being turned on them could probably run away, or tackle their assailant, before a shot was fired. As the historian Garry Wills has pointed out, the shootout at the OK Corral, which involved nine men, two horses, revolvers, a shotgun and a Winchester Rifle, all in an eighteen foot wide lot, resulted in only three deaths, largely due to the inaccuracy of the weapons and the huge cloud of smoke that arose after the shooting began. And this was in 1881, over one hundred years after the Second Amendment was written, and also after men like Samuel Colt had made significant improvements to firearms.

Much has changed in the intervening century. Handguns can pump bullets quickly and accurately, and rifles are likewise lighter, easier to use, and faster to reload. They are also far more prevalent. If in fact the framers of the Constitution intended that the right to bear arms was one not be infringed, at some point it does need to be considered that their conception of arms differs greatly from ours. The Glock 9mm has about as much relationship to the flintlock pistol as a Ford Taurus does to a saddle horse. We have rules regulating cars that differ drastically from those that regulated horses, and there are those who point out that we should have different guidelines for semiautomatic weapons than we did for muskets.

But we don't, for two reasons. The first is that our Constitution is composed primarily of negative rights: it is an enumeration of things the government cannot do, rather than prescriptions of what it must do. For this reason we have in our founding document no right to housing, no right to education, and (famously) no right to health care. We do have a right to "the common safety" but the extent to which it can be enforced is limited by the fact that guns, of all things, are the beneficiaries of a negative right.

There are two lines of defense for this, one utilitarian and the other legal. The utilitarian argument says, simply, that society is safer when it has more guns. The legal argument says it doesn't really matter if society is safer because the Constitution says we can have guns, and if the Constitution says so then it must be okay. In its own way, the legal argument is of a pattern with much public discourse. We regularly look to the Constitution for guidance, and on a host of issues we present our opinions as correct because they correspond how we read the Constitution. Our opponents will then insist that it is their view, not ours, that properly adheres to the document, and we sigh and say that our opponents are interpreting the Constitution wrong. Never, however, do we engage in the rational blasphemy that our opponents might be right and the Constitution wrong, and wrong for a very simple reason: it's old.

Even if the Second Amendment is intended as an individual right, there is a case to be made that the amendment is outdated. And the Second Amendment may not be alone in needing a revamp. Campaign finance reform, according to the ACLU, is unconstitutional. I trust the ACLU on most First Amendment issues, but I still think that finance reform, in a political system hideously polluted by money, is a pretty good idea. The United States is one of the youngest countries in the developed world, but it has by far the oldest Constitution. And so difficult is it to change that Constitution (less than 3 percent of the population can block an amendment) that it has become, in some eyes, a secular Bible, a gospel that has hijacked the science of governance. We live, according to Constitutional scholar Daniel Lazare, in a "Frozen Republic," a stop-time feedback loop that forces crucial issues of the day to be interpreted through a centuries-old lens. The Constitution, in other words, actually deters the evolution of democracy.

I don't strictly adhere to this school of thought, although I think anyone who dismisses it outright is simply courting ignorance. Nothing lasts forever, regardless of nostalgia or patriotic sentiment. But the whole exercise does raise anew the question of why guns should be protected by a Constitutional right. Many of our rights, after all, are not enumerated in the Constitution--why guns? This returns us to the utilitarian argument: guns make the society safer. Criminologist Gary Kleck has shown that only two percent of the guns in circulation will ever be used for a crime, so gun control, he argues, "faces a serious needle in a haystack problem." Kleck also points out that a slightly larger percentage of the guns circulating will probably be used to prevent a crime, thus rendering an armed society, on balance, better off than an unarmed one.

I don't dispute Kleck's work, but I do think he has failed to look at the whole picture. Specifically, he doesn't examine the guns that are used neither to commit nor prevent crimes--those that make up the other 96 percent of America's arms. My central problem with gun control is that it bears too many similarities to the War on Drugs: it attacks a demand-driven problem through assaults on supply. But that doesn't mean the supply isn't a source of concern. If only a miniscule portion of the nation's guns are going to be used in crimes, why do so many people arm themselves?

Guns, like drugs, tend to be a self-justifying phenomenon. If someone buys a gun to feel safe, and the gun does make them feel safe, then it stands to reason that they will feel less safe without that gun, even if they were never in any danger to begin with. In many instances, the gun validates a distrust of society that isn't justified, and for this reason it is a symptom of two deeper problems--crime and fear of crime. Our anxiety about criminals exists in a condition grossly out of proportion to their existence: to give but one example, the number of children kidnapped and killed has been steadily decreasing in recent years, and the numbers so far for 2002 indicate that it will continue to bottom out. The average over the past decade has been between 200 and 300 per year. This is without question an unspeakable tragedy, but it is not an epidemic. And yet our nation is in the grip of kidnapping-hysteria, convinced that monsters lurk behind every jungle-gym. Does anyone doubt that some parents have armed themselves against this phantom menace?

Guns are an anti-social solution to a social problem. If people distrust each other and arm themselves against them, this may in some statistical interpretation reduce crime, but it is not a recipe for social comity. It seems hardly a reason to Constitutionally protect firearms ownership. But there is one more argument for the Second Amendment: it protects us from our own government, and is as such the first defense against encroaching tyranny. In the current atmosphere this is laughable, and I will give it only the bare treatment it deserves.

History is not kind to this argument. The armed citizen has a lamentable record against the armed regiment, and often it is the simple suggestion that citizens have arms that allows for the brutal repression of opposition groups. African-Americans, for example, did not win their civil rights through gunfights with the police. The Nation of Islam was reviled for its violence, and parlayed into propaganda for racists and segregationists. No, the last dictatorships in the United States, which were the police states of Mississippi and Alabama, were taken down through peaceful protest that spurred legislation. The protests came at an admittedly high price, but that price was exacted largely through night-riding and terrorism--by ordinary citizens with guns. Can a citizen's gun be an instrument of liberty? Of course. But it can just as easily, and indeed more often, be an instrument of oppression.

And finally, it is worth remembering that today we have an anti-government government, a President who the NRA called its candidate, and an Attorney General who prizes the Second Amendment. What we have gotten from this Administration, thus far, speaks not well of the defense from tyranny. Individual rights are being rolled back at a rapid pace, and much of what was once open is now secret. Guns, however, remain unfettered, which suggests that they benefit from, rather than protect against, the destruction of other liberties. This does not need to be the case, and gun control is far from an open-and-shut issue. But for now, those who believe in gun rights are burdened by their own champions, who invoke the Constitution even as they busily carve it up.

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