Going Off Half-Cocked?
By Brantley Thompson Elkins
ItÕs always a bad idea to sound off on an issue you donÕt know much about, so this essay might seem to be a bad idea from the get-go. ItÕs about the gun control issue.
IÕve never owned a gun. I donÕt even want to own one. The only time I ever shot one was in then-compulsory ROTC at a state university. I was a lousy shot, and IÕd surely be a worse one today. All I know about the issue is what I read in the papers. I think IÕm an intelligent reader, but you be the judge.
A lot of arguments over gun control bug me, because they sound so stupid and irresponsible. This came to light recently in a flap between Barack Obama and Hillary Clinton, who between them seem set on wrecking the Democratic party and handing the election to John McCain. I wonÕt comment here on whether that would be a good thing or a bad thing.
Obama put his foot in his mouth, youÕll recall, by characterizing working class whites in small towns as people who Òcling to guns or religionÓ out of bitterness over the state of their lives. Clinton jumped all over him for that, but made a fool of herself by posing as a champion of gun rights; maybe she hunted sewer rats in Chicago with her gun when she was a kid.
Obama denied being an elitist, but the fact is that his remarks were typical of liberal elitists who think anybody who owns a gun must be an alienated right-wing white man – as if poor black neighborhoods werenÕt rife with guns and shootings. And ClintonÕs response was every bit as insincere and self-serving as Al GoreÕs one-time boast that people in his family worked in the tobacco fields – until he got religion and said heÕd been against tobacco ever since his sister died of lung cancer.
ThereÕs a case before the Supreme Court right now that may define just what is meant by the Second Amendment. HereÕs part of a recent report by CBS News:
The Supreme Court appeared ready Tuesday to endorse the view that the Second Amendment gives individuals the right to own guns, but was less clear about whether to retain the District of Columbia's ban on handguns.
The justices were aware of the historic nature of their undertaking, engaging in an extended 98-minute session of questions and answers that could yield the first definition of the meaning of the Second Amendment in its 216 years.
A key justice, Anthony Kennedy, left little doubt about his view when he said early in the proceedings that the Second Amendment gives "a general right to bear arms."
Several justices were skeptical that the Constitution, if it gives individuals' gun rights, could allow a complete ban on handguns when, as Chief Justice John Roberts pointed out, those weapons are most suited for protection at home.
As everyone knows, or should know, the Second amendment reads:
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 controversy has to do with whether any and all individuals have the right to Òkeep and bear arms,Ó or only members of the militia. But what may confuse a lot of people these days is what is meant by Òmilitia.Ó At the time the Bill of Rights was drafted, the militia wasnÕt a formal military organization like todayÕs National Guard. A Wikipedia entry on the Second Amendment is now in dispute, but I doubt that the dispute relates to the origins of the militia as it was understood by the framers of the Bill of Rights:
The concept of a universal militia, consisting of all free white men bearing their own arms, that lies at the heart of the Second Amendment, originated in England. The requirement that subjects bear arms, serve military duty, dates back to at least the 12th century when King Henry II obligated all freemen to bear arms for public defense. At that time, it was customary for a soldier to purchase, maintain, keep, and bring their own armor and weapon for military service. This was of such importance that Crown officials gave periodic inspections to guarantee a properly armed militia. This remained relatively unchanged until 1671, when Parliament created a statute that drastically raised the property qualifications needed to possess firearms. In essence, this statute disarmed all but the very wealthy. In 1686, King James II banned without exception the Protestants' ability to possess firearms, even while Protestants constituted over 95% of the English subjects. Not until 1689, with the rise of William of Orange, did the Protestants possess firearms once again with the newly enacted law that reads, "That the Subjects which are Protestants may have Arms for their defence suitable to their Conditions, and as allowed by Law.Ó
In other words, all adult males were automatically part of the militia, so at the time the Bill of Rights was approved, the ÒmilitiaÓ meant all adult males. White males, anyway, and in the North it probably also included free black males, some of whom had fought in the Revolution. But in light of actions by Parliament and the King to limit gun ownership to the wealthy, or deny it to Protestants, the framers of the Second Amendment may have wanted to ensure that all adult males, rather than only a privileged few, should be guaranteed the right to keep and bear arms.
The argument about the nature of the militia has been raised before, and is doubtless being raised again in the case before the Supreme Court (a ruling is expected in June), although that case centers on a Washington, DC, ban on handguns as opposed to the kind of weapons one might expect the militia to use – if we still had a militia in the original sense.
Oddly enough, however, there hasnÕt been much discussion about the Constitutional meaning of Òarms.Ó It was pretty obvious 200 years ago: rifles and shotguns. The framers of the Second Amendment probably werenÕt thinking about cannons, if only because they were too heavy for an individual to Òbear.Ó Cannons and other heavy weapons were presumably the prerogative of the standing army, although I suppose that members of some militia units may have gone shares on them.
But what would the framers of the Second Amendment have thought of machine guns, bazookas or hand-held missile launchers? Opponents of gun control havenÕt mentioned the latter, but they have fiercely opposed any limits on automatic weapons – sometimes on specious grounds, e.g, that theyÕre needed by hunters. Would any hunter worthy of the name stoop to using a machine gun to bag a deer? I doubt it (Some people think all hunters must be testosterone-crazed maniacs, but I donÕt believe that.). Nor do I think that a bodega owner in a high-crime neighborhood would opt for a machine gun rather than an ordinary pistol.
If hand-held nuclear weapons – a possibility raised by H.G, Wells nearly a century ago – become a reality, I donÕt think any court in the land would rule that they should be freely available just because they can be borne. Whatever the Supreme Court decides in the Washington case, it should provide very clear, well-argued guidance on what kind of ÒarmsÓ can be covered by the Second Amendment under an interpretation appropriate for our times.
A lot of the debate over the Second Amendment has been distorted by political passions. Whether ordinary people should be allowed to own guns or not has been seen as a strict Right Wing-Left Wing issue, with zealots on each side demonizing the other. Michael Moore had a lot of fun with Charlton Heston in Bowling for Columbine, in which he portrayed the actor and president of the National Rifle Association as having called an NRA ÒrallyÓ in Denver just to spite the victims of the school massacre when it was only a regularly-scheduled NRA meeting – and downplayed at that.
Even so, Heston and the NRA generally have made themselves obnoxious for decades, and in practice appear to be more interested in the welfare of the gun industry than in the rights of ordinary gun owners. Like any other industry, the gun industry wants to sell as many of its products as it can; if the market for legitimate sales become saturated, itÕs at least willing to look the other way if some of the dealers it serves sell automatic weapons as well as handguns and hunting rifles to anybody who walks in. Ordinary gun owners donÕt need machine guns, and donÕt send straw purchasers to gun dealers or gun shows – a practice the NRA seems to think is perfectly legitimate. And the group has a long record of intransigent irrationality,
Jack Webb, hardly a bleeding heart liberal – indeed, liberal critics later excoriated him for allegedly being in bed with a corrupt and racist Los Angeles police department -- incurred the wrath of the NRA in 1950 over an episode of Dragnet in which a nine-year old boy gets a .22 rifle for Christmas and shows it off to a friend, who fatally wounds himself. Sgt. FridayÕs assessment: ÒYou donÕt give a kid a rifle for Christmas.Ó When the NRA got on his case, WebbÕs reaction was to keep re-running the episode. More recently, the NRA – which had long been allied with the police -- pissed them off by opposing a ban on cop-killer bullets:
"Mark my words, the so-called 'cop-killerÕ bullet issue is a Trojan Horse waiting outside the gun owners' doors,Ó the NRA said in a mass mailing. ÒIf the anti-gunners have their way, this highly publicized and emotionalized issue will be used to enact a backdoor, national gun control scheme.... The anti-gun forces will go to any lengths to void your rights to keep and bear arms...Ó
When Baltimore Police Chief Neil Behan called the NRA on the carpet about that, he was pilloried by the group. Jerald Vaughn, director of the International Association of Chiefs of Police, responded thusly:
Your tactics have included taking the liberty of improperly acting as a spokesman for law enforcement in this country. You have misrepresented our position, you have attempted to discredit and undermine the leadership of our professional law enforcement associations and have blatantly insulted our intelligence by implying we are the dupes of the anti-gun lobby....
After the Virginia Tech massacre a year ago, there were some right-wing pundits who declared that the carnage could have been avoided if only the campus cops or even the students had been carrying guns, as reported in the New York Daily News:
A gun-rights advocate said Tuesday that if Virginia Tech students and employees had been armed they would have been able to defend themselves in the rampage.
"The only person who is responsible to defend you is you - the police are incapable of defending each and every one of us all the time," said Mike Stollenwerk, 44, co-founder of Open Carry.org, a Virginia-based gun-rights networking group."
This is insane; the Virginia Tech massacre was a crazy situation that nobody could have anticipated, and the response of armed campus cops and students would have been just as crazy. TheyÕd doubtless have panicked and shot wildly, killing even more people. Rightists had raised the same argument in 1993, when a crazed gunman, Colin Ferguson, shot up a Long Island Railroad commuter train car: If only those commuters had had guns at the ready. Yeah, imagine a bunch of untrained white collar types shooting all over the place, with ricochets killing of wounding God knows how many people. Professional police can panic and screw up, as weÕve seen in any number of shootings in New York City and elsewhere; self-appointed cops without any knowledge or experience would surely do worse.
But the NRA and other right-wing groups hardly have a monopoly on such warped thinking. Costra Gravas, the famed Greek-French film director, was the man behind Betrayed (1988), a film in which the American heartland – not the Deep South, mind you, but the Midwest – is portrayed as being inhabited entirely by gun-toting racists who hunt down black people for sport (Guess it was just good luck that saved Barack Obama from the same fate in Iowa!).
The movie was inspired by the killing of a left-wing radio personality by a member of a right-wing hate group called the Order. That could have been a legitimate subject, but the screenplay by Joe Eszterhaz takes what was in real life a splinter group and turns it into a mass movement the totally dominates the region and strikes terror into the hearts of anyone who might disagree with it. It has branches all over the country and even within the FBI, but somehow itÕs so secret that even Cathy Weaver, the agent sent to investigate the killing, doesnÕt know anything about it. Yet reviewers praised it to the skies, and comments about Betrayed at Amazon and Imdb are mostly positive, as witness one example from Amazon:
This is an incredibly memorable film about white supremicists that explores racism in its most extreme form. Debra Winger is an undercover agent who infiltrates a community of seemingly innocent hard working farmers but as the film progresses the hatred and evil lurking beneath the surface becomes more and more evident. Shocking at times and realistically written and acted, this is a thought provoking and disturbing movie that deserves more attention than it has received. Not one you will soon forget.
Costa Gravas and Eszterhas not only want us to believe that Nebraska in 1988 is like Mississippi in 1888, but that the FBI heroine would fall madly in love with the villain like some abused teenager falling for the pimp who gets her into prostitution. Yet one guy posting at Imdb took this ludicrous love story seriously, as if it were the greatest thing since Romeo and Juliet, or at least Gone With the Wind:
In the farm land and being undercover as Cathy Weaver she falls in love and lives with murder suspect Gary Simmons, Tom Berenger, and his family. Simmons is a widower with children who's mother also lives with him that has Cathy/Katie for the first time in her life have the family that she always longed for. This very fact is what Cathy says is "Screwing up her loyalties" to the government and FBI that she works for.Cathy/Katie desperately wants to be taken off the case before she betrays the man, Gary, as well as the family that she loves. Still the FBI refuses to do so because Cathy's in too deep and is too close to break the case on the Kraus killing.
Gary is also very honest with Cathy/Katie by telling her about himself and what he and his friends, the anti-government white separatists, are all about. Gary even takes Cathy/Katie out one night to a "Hunt" where Gary and his friends hunt down and murder a terrified young black man in the back woods. This makes Cathy/Katie feel terribly guilty since she's not honest with Gary even though Gary is so brutally honest with her about himself.
Ahh! Such brutal honesty. Well, Woodrow Wilson thought Birth of a Nation was brutally honest, to his shame, and in those days it seemed that colleges and universities were dominated by the Southern Point of View, just as they are today dominated by the Marxist/Hollywood point of view. But, not everybody who posted at Imdb was taken in by Betrayed, as witness:
If you want to make a film about a culture that you don't really know, this is what you'll end up with. Take every stereotype of the American small-town or rural community and mix it up with European sensibilities of politics, terrorists, prejudice and power struggles, and this is an example of the mess you get. Totally unbelievable, except to those who would use this fictional account to bolster their perverted views, thinking it to be a honest portrayal of an American community circa 1988. Since Hollywood is guilty of this same perversion of foreign cultures in many films, I suppose it's a sort of justice to have the same thing happen to Americans, but then why is it always done to those Americans who have a different political view from the powers in Hollywood?
What does all this have to do with gun control? Simply that Hollywood liberals really believe that Middle-Americans are all rabid racists engaged in a campaign of terror and murder. Letting them have guns is like letting criminals and lunatics have guns. To them, ordinary conservatives in the red states are as bad as the Nazis, as bad as the Kluxers in the South after Reconstruction. The same people who warn us against judging all Muslims by the acts of the Jihadists are perfectly willing to judge their fellow Americans by the acts of the Oklahoma City bombers or the Aryan Brotherhood – who, in any case, are pikers next to the Jihadists (So were the Weather Underground terrorists on the Left, for that matter.). But the warped views of the radicals on the right and the left have colored all discussion of gun violence and gun control.
Back in 1984, there was an infamous case of a white subway rider, Bernard Goetz, who shot four black punks who appeared to threatening top rob him. The case became a litmus test for conservatives and liberals. The former applauded his vigilante action, and argued that he didnÕt have any choice but to shoot. The latter roundly condemned him, arguing that he was racially motivated and that his victims were innocent little lambs.
Goetz had indeed made racist remarks, but one of the victims admitted they had been out to rob him – and all had criminal records (One was later convicted of beating, raping and robbing a pregnant woman.). Goetz had been mugged twice before, but was denied a gun permit. Because he bought a gun anyway, he was convicted of criminal possession of a weapon. Then Ron Kuby, a prominent liberal attorney who never met a leftist cause he didnÕt like – a later instance was LIRR gunman Ferguson, who, unlike Goetz, was black -- sued Goetz on behalf of one of the punks, Darrell Cabey, and won a $43 million judgment. Yeah, thatÕll teach those right-wing terrorists! It wasnÕt exactly the last laugh, but Goetz filed for bankruptcy, and neither Ruby nor Cabey ever got any of their blood money.
None of those who made Goetz a poster boy, whether for or against gun rights, seems to have considered that Goetz had a third alternative to shooting or being robbed: he could have simply brandished his gun at the punks and told them to get lost. Punks are cowards at heart, and would probably have fled. Free to rob somebody else another day, alas; as an individual, Goetz had the right to self defense, but not the right and certainly not the obligation to Òtake out the trashÓ as some vigilantes are wont to put it.
ItÕs easy to feel smugly superior to the right-wing zealots, and to forget that the argument in favor of gun rights – as opposed to the indiscriminate use of guns – is no longer exclusive to their ilk. Here are excerpts from a piece that appeared in The New York Times last May. It was odd for two reasons. First, it revealed that backers of a broad interpretation of the Second Amendment arenÕt all conservatives. Second, it didnÕt say a word about why liberals like Laurence Tribe have changed their position:
There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.
In those two decades, breakneck speed by the standards of constitutional law, they have helped to reshape the debate over gun rights in the United States. Their work culminated in the March decision, Parker v. District of Columbia, and it will doubtless play a major role should the case reach the United States Supreme Court.
Laurence H. Tribe, a law professor at Harvard, said he had come to believe that the Second Amendment protected an individual right.
ÒMy conclusion came as something of a surprise to me, and an unwelcome surprise,Ó Professor Tribe said. ÒI have always supported as a matter of policy very comprehensive gun control.Ó
The first two editions of Professor TribeÕs influential treatise on constitutional law, in 1978 and 1988, endorsed the collective rights view. The latest, published in 2000, sets out his current interpretation.
Several other leading liberal constitutional scholars, notably Akhil Reed Amar at Yale and Sanford Levinson at the University of Texas, are in broad agreement favoring an individual rights interpretation. Their work has in a remarkably short time upended the conventional understanding of the Second Amendment, and it set the stage for the Parker decision.
The earlier consensus, the law professors said in interviews, reflected received wisdom and political preferences rather than a serious consideration of the amendmentÕs text, history and place in the structure of the Constitution. ÒThe standard liberal position,Ó Professor Levinson said, Òis that the Second Amendment is basically just read out of the Constitution.Ó
If only as a matter of consistency, Professor Levinson continued, liberals who favor expansive interpretations of other amendments in the Bill of Rights, like those protecting free speech and the rights of criminal defendants, should also embrace a broad reading of the Second Amendment. And just as the First AmendmentÕs protection of the right to free speech is not absolute, [they] say, the Second AmendmentÕs protection of the right to keep and bear arms may be limited by the government, though only for good reason.
I suspect that if a group of conservative scholars had done a 180 and come out in favor of banning guns, the Times would have devoted pages and pages to the basis of their argument. But whatever the reasoning of the liberal scholars is, the editors of the liberal Gray Lady doesnÕt want their readers to know about it.
One reason for that might be that the Times believes in the Slippery Slope theory, which as Wikipedia characterizes it Òsuggests that an action will initiate a chain of events culminating in an undesirable event later. The argument is sometimes referred to as the thin end of the wedge or the camel's nose.Ó It is a concept widely embraced by partisans of both the Left and the Right.
The NRA, on one hand, is convinced that the slightest concession to gun control advocates, as with cop killer bullets or machine guns, will inevitably lead to registration and confiscation of all firearms. Gun control extremists, on the other hand, are equally convinced that even letting a bodega manager or a homeowner in high-crime area have a gun will inevitably lead to criminals and wackos of all kinds – especially right-wingers, of course – stockpiling arms, shooting anyone they donÕt like, maybe even staging a putsch.
ItÕs the same with other hot-button issues. Pro-choice advocates oppose any restrictions whatever on abortion – including what they call late-term and their opponents partial birth abortions – because they are certain that would be the first step on a slippery slope towards a ban on all abortions and even birth control. Right-to-Life advocates are just as certain that allowing any abortions at all will surely lead to a wave of late-term abortions by women who canÕt make up their minds for eight or nine months, and even to infanticide.
One manÕs slippery slope isnÕt anotherÕs. The NRA advocate who sees a slippery slope in a ban on cop-killer bullets probably may not see one in the kind of government decrees, aimed at terrorism, that allow for unrestricted surveillance and denial of judicial due process. By the same token, advocates for women and children who are victims of sex crimes donÕt see any slippery slope in their calls for preventive detention of sex offenders and presumption of guilt for accused child molesters – who in some cases are the victims of hysteria, as witness a case Lawrence Wright described in Remembering Satan.
But the Slippery Slope game can endanger all our rights. That seems to be what worries Lawrence Tribe and other liberal advocates of individual rights to gun ownership under the Second Amendment. If you can interpret away some of the Bill of Rights, you can interpret away all of the Bill of Rights. But that still leaves the question of what kind of limitations the government can put on ownership and use of guns Òfor good reason.Ó
When the Bill of Rights was adopted, 90% of the people in the United States were farmers who not only owned their own weapons but knew how to use them for militia duty as well as hunting. ThatÕs not the case today. And while there may not have been any law about it, chances are that public policy at least discouraged the ownership and use of guns by criminals or lunatics. How do we try to adapt the intentions of those who framed the Bill of Rights to present conditions?
One possibility is to require, not only criminal and mental background checks, but firearms training in order to obtain a gun license. Nobody argues that ownership of cars should be restricted to a privileged class, but no state or country in the world would let somebody who doesnÕt know how to drive behind the wheel. For ordinary citizens, ordinary rifles and handguns ought to be enough for hunting and protection. Ordinary driverÕs licenses arenÕt good for large commercial trucks and buses, which involve greater responsibility. Perhaps if a man wants a license for an automatic weapon, he should have to undergo military training – and be willing serve in the military or the reserves.
There are all sorts of related issues. One is enforcement of gun laws, and the fear that they would be enforced selectively. When gun control zealots talk about ridding the country of guns, they nearly always see the primary danger in right-wing gun nuts – if only their guns were taken away, the country would be safe. But it seems unlikely that a Draconian gun law aimed at the Right would be used against urban gangs like the Crips or the Bloods or the Latin Kings. Some liberals who canÕt stand macho posturing by rednecks may think the same behavior by urban minorities is cool, but even if they donÕt., they wouldnÕt want to be seen as racist and risk the wrath of Al Sharpton and his ilk by going after homie gangbangers.
Liberal gun opponents complain about the Gun Culture, and believe – slippery slope again – that private ownership of guns will automatically inspire the indiscriminate use of guns. There are arguments that violent films and games like First Person Shooter encourage this. Yet even Michael Moore acknowledged that private gun ownership is as widespread in Canada as in the United States, without causing a bloodbath north of the border. Why this is, I donÕt know, but itÕs worth looking into.
Then there are issues like ensuring gun safety; one popular idea is to require trigger locks on handguns. This would certainly avoid tragedies like children getting hold of guns kept at home and either shooting themselves there or taking them to school and shooting somebody else. In the long run, however, so-called Òsmart gunsÓ would be better. Unfortunately, I gather that the technology, involving chips, magnetic rings or even grips that can recognize the owner, is far from reliable – yet. But if a bodega owner or homeowner is threatened by robbers, heÕs going to need his gun in a hurry.
I donÕt have an immediate answer to that dilemma, But as I said at the outset, I donÕt know a lot about guns.