Debate

Reprinted from Focus on Law Studies, SPRING 2003, Volume XVIII, Number 2, published by the Division for Public Education of the American Bar Association.
Copyright 2003, American Bar Association Division for Public Education, 541 N. Fairbanks Ct., Chicago, IL 60611.
Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Gun Laws and Policies: A Dialogue

CONTENTS:
Guns in American Culture
Guns and Second Amendment
The Brady Law
Public Opinion & Guns
Cross-National Perspectives
Reducing Gun Violence
Contributors
Bibliography

Editor’s Note: Eight social science, humanities, policy, and legal scholars discuss a wide range of viewpoints on the place and regulation of guns in the United States and abroad. The conversation traverses historical perspectives, the origins and meaning of the Second Amendment, federal and state laws regulating guns, the role of public opinion and interest groups in influencing legislation, and strategies to reduce the level of gun violence in the future. See this dialogue also at www.abanet.org/publiced/focus/.

Part I: Guns in American Culture

EDITOR (John Paul Ryan): I would like to begin by asking you to talk about the place of guns in American culture. Are guns a special problem in our society? Do we have an exaggerated fear of guns? How have the media and popular culture formed our images and biases of guns, their uses, and public safety?

SAUL CORNELL (Ohio State University/ History): The history of guns in American society is a complex story. As is true for so much of our history, the gulf between myth and reality has been vast. Still, myth can be a powerful force in shaping law, politics, and public policy. The well-regulated militia described by the Second Amendment is an excellent case in point. The performance of the militia in the Revolution was mixed at best. Leading military figures in the Revolutionary era urged Americans to lessen their reliance on this venerated ideal and replace it with a more modern and professional military force. After a long debate in Congress, proponents of military reform were defeated by those who continued to fear professional armies and instead supported the idea of the militia. Although willing to nod to this ideal, Congress was not willing to adequately fund the militia they created, so once again the divergence between rhetoric and reality continued.

I find it fascinating that so many gun rights groups today have chosen the image of the minuteman as their symbol. The symbolic power of this icon continues to shape how we view guns. Most people who rally behind this symbol would not welcome the kind of intrusive regulation required to recreate the militia of the founding period. Would people who rail against government regulation of firearms be willing to muster on the town green or at the local mall and allow government to regulate the storage of privately owned weapons, or consent to privately owned weapons being registered or taxed? Once again, myth trumps reality in the great American gun debate.

ROBERT J. COTTROL (George Washington University/Law/History): Guns have played an important role in American history. The best evidence we have is that private gun ownership was widespread for the white population from the beginning of the English settlement of North America. Indeed, from the earliest settlement there was an effort to encourage white migration in order to ensure a population of white men capable of bearing arms. The idea of the universal militia of all free (white) men, bearing their own arms, had its origins in English law and custom. The concept was strengthened in the American context, in part because of the desire to control the black and Indian populations. This idea was further strengthened by the role of the militia in the American Revolution. If the militia’s record in the Revolution was “mixed” (as indeed was that of the Continental Army), the image of the “farmer who fired the shot heard round the world” was a powerful one to the generation that fought the Revolution, and indeed to subsequent generations. The idea that American freedom arose from a revolution started by armed citizens was powerful enough to influence the writing of the Constitution—hence, the Second Amendment.

ROBERT SPITZER (State University of New York at Cortland / Political Science): Regardless of whether guns were prolific or rare in American history, there is no doubt that gun presence and use coincide with America’s earliest history. Guns undeniably played an identifiable role in American habits and development, yet their role was also exaggerated and romanticized even before there was a Hollywood.

The best example of this is American westward expansion, where folklore, and later Hollywood, perpetuated the impression that the West was “won” by gun use. Yet the truth was the opposite. As historians have documented, the American frontier was tamed through the westward movement of farmers, ranchers, businesspeople, tradesmen, and other populations who, when towns and cities were formed, demanded and imposed strict gun controls as a necessary first step toward the establishment of public safety. The impressions that gun fights were common, or that civilian gun-carrying was key to order, are simply false. For example, in the five most violent cow towns of the old West (Abilene, Caldwell, Dodge City, Ellsworth, and Wichita), 45 killings occurred between 1870 and 1885. Of those, only six came from six-shooters; sixteen were by police. Hollywood-style gun fights were virtually unheard of. Nevertheless, this cultural imagery prevails today not only in the United States but around the world. Guns are certainly feared in modern society and rightly so. As any responsible gun owner knows, guns are dangerous implements and should be treated accordingly.

DEBORAH HOMSHER (Cornell University / Asian Studies—Managing Editor of Publications): Perhaps we should ask why these historical questions are so important to us. To answer that question, it’s useful to focus on the more recent past—on the 1990s rather than the 1770s—and the fierce public gun debates during the Clinton years. I would argue that the most passionate advocates of Second Amendment rights and right-to-carry legislation during those years believed that certain definitive American qualities were being lost because of the cultural evolution that had begun in the 1960s, a decade they perceived as the relativistic “anti” years: anti-church, anti-marriage, anti-white-male, anti-war, and anti-gun.

Self-reliance is the key national characteristic valued by those who defend their right to own guns without interference from the local police, the Congress, intrusive medical experts, or Sarah Brady. I am a great fan of self-reliant Americans generally and of our American literature and popular culture featuring male adventurers in gigantic terrains. At the same time, I see that most American adventure narratives featuring hunts and gunfire include few women, and those females who do appear tend to be silly or in need of rescue, or they’re given guns so they can play along. In short, America’s politics and popular culture tend to be markedly masculine.
Public fascination with guns grows most passionate when, in fact, the actual need for guns appears to be waning. Hence the popularity of Buffalo Bill’s Wild West Show in the late nineteenth century, just after America’s frontier had been pacified. Hence the heat of the NRA’s Web site throughout the 1990s, when fewer men were actually buying licenses to hunt deer, crime rates were dropping in the big cities, the Soviet Union had dissolved, and more people found themselves working with their fingertips at computer keyboards like secretaries, not adventurers.

GREGG CARTER (Bryant College/Sociology): Guns do represent a special problem in our society. The level of gun violence in the United States is much higher than in our peer nations, the industrialized democracies of Western Europe, Japan, Australia, New Zealand, and Canada. In one respect, though, we do have an exaggerated fear of guns—gun violence is not spread equally across our social fabric. African American males in their teens and early twenties are, by far, the most likely to suffer such violence. In the 1990s, the rate of homicide due to firearms for black males in their early twenties was 140.7 per 100,000; the same rate for all individuals in their early twenties was 17.1. Similarly, the rate of homicide due to firearms for black teenagers was 105.3 compared with 14.0 for all teenagers. Although the absolute numbers of victims have fallen in recent years, the racial slants in the data remain.

These slants stand in contrast to the high media coverage of shootings involving teenage boys in the late 1990s and early 2000s. All but one of these high-profile incidents have involved white, male teens from small towns and suburbia. Except for the bloodbath at Columbine High School in Littleton, Colorado, shootings of young people in the neighborhoods surrounding our inner-city schools are on par with these high-profile cases, though little publicized except in the local media. In short, white and minority gun violence are treated differently in the national media.

This bias in media coverage is responsible for a great deal of unneeded fear of gun violence. Compared to their poor counterparts, working-class, middle-class, and upper-class Americans have little to fear.

JAMES JACOBS (New York University/ Law School): I am not sure that guns are a special problem in our society. Lethal violence is definitely a special problem. It is often asserted that firearms’ availability is the cause of America’s high level of lethal violence. This assertion ought to be regarded as controversial. There are many plausible causes of America’s high rate of lethal violence—e.g., the frontier tradition, the southern code of honor, pockets of extreme poverty amid great material wealth.

The great majority of violent crimes (other than homicides) in the United States are not committed with firearms. And despite the easy availability of firearms in the United States, our suicide rate is not high in comparison to other countries. Thus, I believe that we should be primarily concerned about violence, not firearms.

In research that one of my students and I have been conducting, we have identified more than 50 “gun” magazines commonly available for sale. These magazines can be divided into at least four categories: hunting; target shooting; survivalist; and technical. For the most part, there is nothing sensationalistic or titillating about the content of these magazines, which are read by almost as many Americans as auto magazines. They present guns as a desirable and useful consumer item, like cars. Of course, gun magazines do not provide the only media images of firearms. Movies and television present constant images of guns being used to kill people. Some of these killings (by the bad guys) are offered as examples of evil, while some of these killings (by the good guys) are presented as examples of good.

RICHARD ABORN (The Kamber Group/Senior Counsel & Director of Public Policy): I would suggest that the “special problem in our society” is not with guns, but with gun violence. Whether or not the founders wished to arm the citizenry to ensure that excessive government power could be curtailed (unlikely in my view) or whether or not the West was settled at the end of a blazing six-shooter (equally unlikely in my view) has become largely irrelevant to the contemporary debate over guns. More relevant, the largely romanticized view of guns in American history has become accepted as fact and has been parlayed into a powerful rallying cry for those who oppose gun control legislation. After all, Charlton Heston did not hold an AK-47 over his head.
In a contemporary culture that has a very short attention span, thrives on imagery, and promotes the clash of two diametrically opposed sides as a means of discussing issues, fostering a re-examination of the true role of guns in American history is virtually impossible. It is important, therefore, that gun control advocates be quite clear that their objective is not to eliminate this icon of American culture, but rather to try to control the violence associated with guns.
Do we have an exaggerated fear of guns? I don’t think so. If we did, millions of perfectly reasonable, responsible, and law-abiding Americans would not own them. On the other hand, our experience with the rapid increase in crime from the mid-1980s to the early 1990s has impressed upon us the critical need to respond to the criminality associated with illegal guns.

JOYCE MALCOLM ( Bentley College / History): Guns may have come to be seen as a special problem in American society in the last half of the twentieth century, but for most of our history they were viewed neither as a problem nor as peculiar to the United States. As Robert Cottrol points out, the American colonists took from England the tradition of armed individuals responsible for their own safety and for general peacekeeping duties in the larger community. Only one aspect of these duties was service in the militia. Common law, as practiced in both Britain and America, appreciated the need for men and women to be able to defend themselves and permitted them to do so. There was also, of course, a long philosophical tradition that a free man was a man who was armed. All this seems unusual today, not because there is no longer a need for self-defense, but because most governments, including the British government, have not trusted their people to be armed and have, instead, insisted on a monopoly over the use of force. I think many Americans have an exaggerated fear of guns, because both the print and television media are overwhelmingly dominated by those who advocate strict controls on private firearms. Incidents involving shootings are given intense coverage, while situations in which individuals have used firearms to protect themselves or to thwart crimes get far less attention. The result is that the public has come to believe that gun crime and gun accidents are increasing, when in fact gun accidents are greatly reduced and we have enjoyed a decade of sharply declining gun violence. But old stereotypes die hard. The image persists of the gun-toting American living in a violent “cowboy country” in contrast to the unarmed Briton, living in a peaceable land. Neither stereotype is correct. Although an increasing number of Americans own guns, the level of gun violence has been declining; the British are disarmed, and gun violence is increasing.

GREGG CARTER: I beg to differ with Joyce Malcolm. Guns have a longer history of being seen as a special problem in the United States. Congressional deliberations leading to the National Firearms Act of 1934 and the Federal Firearms Act of 1938 were instigated by the gun violence of the Prohibition Era, which culminated in the 1929 St. Valentine’s Day Massacre in Chicago, and by the 1933 assassination attempt on President Franklin Roosevelt. Taken together, the acts banned sawed-off shotguns and placed taxes and other restrictions on the sale of machine guns and automatic weapons.

The assassinations of President Kennedy, Robert Kennedy, and Martin Luther King, Jr., motivated Congress to pass the Federal Gun Control Act of 1968, which banned mail-order purchase of firearms and regulated the interstate transportation and importation of guns and ammunition. Armed Black Panthers fueled additional fear of firearms and the need to regulate their sale, possession, and use.

John Hinckley’s use of a cheap handgun in March of 1981 to shoot President Ronald Reagan and his press secretary, James Brady, helped spur the movement to control guns. Gun control proposals were introduced in Congress; by 1986 the first of these passed as part of the Firearms Owners’ Protection Act. Originally intended to dismantle many gun control provisions, this act did include a prohibition on interstate pistol sales and on the sale of new machine guns. The 1988 Undetectable Firearms Act (banning plastic guns) and the 1993 Brady Handgun Violence Prevention Act (requiring a five-day waiting period and a criminal background check before an individual can purchase a handgun) were also directly traceable to the Reagan tragedy.

In response to a shooting of school children in Stockton, California, in 1989, President George Bush issued an executive order temporarily banning the importation of AK-47s and selected similar rifles. The Stockton incident also sparked the introduction of several bills in Congress to outlaw or restrict assault pistols and rifles. After the election of Bill Clinton, Congress enacted in 1994 the Violent Crime Control and Law Enforcement Act, which banned nineteen different types of assault weapons.

In sum, during the past eighty years we have seen many periods in which firearms have been viewed as out of control in the United States. Public debate on all of our major gun legislation has included reference to our peer nations, almost all of whom had much stronger firearms regulations.

SAUL CORNELL: Anyone who enters into this contentious issue is amazed by the power of historical arguments and symbols in contemporary public discourse on guns. It would be hard to imagine groups favoring an expansive reading of the First Amendment using an eighteenth century printing press the way Charlton Heston has used a musket at the NRA’s conventions. The furor over Michael Bellesiles’ Arming America, a book that argued that Americans in the founding era did not own many guns or have much ability with them, nicely illustrates this point. Bellesiles challenged a mythology that many people hold sacred. It turns out that Arming America and the myth were each caricatures of reality. There clearly was a perception that there were not enough military-style weapons to arm the militia. Americans in the Revolutionary era were more worried that government would fail to arm the people than that government would actively disarm the people.

This is exactly the opposite of the contemporary debate over gun policy. The fascinating questions become: How did we move from the former to the latter situation and how do we interpret a Constitution written in the former world in our own very different world?

Part II: Guns and the Second Amendment

EDITOR: What is the state of legal thinking regarding the Second Amendment and guns? In your judgment, does the Second Amendment prohibit some or all forms of gun regulation? Or, alternatively, does the Second Amendment permit unlimited government regulation of guns?

ROBERT SPITZER: Based on court rulings, historical interpretation, and the sense of those who drafted and debated the amendment, the meaning of the Second Amendment is clear. It provided for a citizen-based right to keep and bear arms when men were called into service in a government-regulated militia, keeping in mind that militias composed of self-armed men were the primary means of national defense in the eighteenth and early nineteenth centuries.

The national government formed under the Constitution of 1787 was granted sweeping new powers, including not only the power to create and maintain a standing army (a power denied to the national government under the old Articles of Confederation), but also the power to organize, arm, and discipline the militias. Antifederalists already suspicious of new federal powers were deeply concerned that states would no longer retain militia authority, and so they sought this reassurance in the Bill of Rights.
The militia-based understanding of the Second Amendment has been uniformly endorsed in Supreme Court cases stretching back to the nineteenth century (U.S. v. Cruikshank, 1876; Presser v. Illinois, 1886; Miller v. Texas, 1894; U.S. v. Miller, 1939;Lewis v. U.S., 1980). The age of some of these cases has prompted some critics to dismiss them, but court cases do not come with expiration dates. In addition, more than forty lower federal court cases, and law review articles published as early as 1874, all embrace this meaning.

In recent decades, efforts have been mounted to impose an individual meaning on the Second Amendment—that is, to assert that the amendment protects an individual right to own guns, aside and apart from militia service. The effort dates to a law journal article published in 1960. Since then, the individualist movement has won adherents, and in 2001 a federal court (Fifth Circuit) for the first time accepted this view in U.S. v. Emerson. This view has now been endorsed by Attorney General John Ashcroft, representing a reversal of decades of Justice Department interpretation. But even supporters of the individualist view generally concede that it permits reasonable gun regulations.

ROBERT J. COTTROL: There can be little doubt that the Second Amendment was intended to protect the right of the people to have arms. The amendment should first be seen as a restatement of the principle found in the English Bill of Rights of 1689. This principle—that the people should be armed not only to participate in militia duty but also to defend themselves against a tyrannical government—was a well-recognized part of Anglo-American political and constitutional thought endorsed by, among others, English legal commentator William Blackstone.

Both Blackstone and the English Bill of Rights were part of the background of the framers as they drafted the Bill of Rights, including the Second Amendment. No one has found any statements from the late eighteenth or early nineteenth century endorsing the notion that the amendment applied only to men acting in a militia capacity. Although one of the purposes of the Second Amendment was to ensure that an armed population would be available to act in a militia capacity, there is no evidence that the right was to be restricted to that. Indeed, given what we know of the rejection of alternatives that were offered, there is a strong indication that the intent was to protect an individual right. Virtually every legal commentary in antebellum America on the Second Amendment saw the amendment in individual-rights terms, starting with St. George Tucker who, in his 1804 (first American) edition of Blackstone, contrasted the robust right in the United States with what he saw as the weaker right in England.

The history of the right to keep and bear arms in the U.S. Constitution does not end with the Second Amendment. We have to look also at the history of the Fourteenth Amendment. The framers of that amendment assumed the right to be individual, and the best reading of the debates over the amendment indicates they intended it and the rest of the Bill of Rights to be made binding on the states through the “privileges or immunities” clause. Their motivation was simple; they wanted to stop the southern states from disarming the newly freed black population of the South.

I believe that Robert Spitzer is standing the history of individual- and collective rights views of the Fourteenth Amendment on its head. Before 1960 there were few who would have claimed that the Second Amendment did not protect the right of individuals. The collective-rights view is a product of the 1960s and the search for a constitutional justification for gun control. Spitzer is misreading the cases that he cites in support of a militia-based understanding of the Second Amendment. Cruikshank, Presser, and Miller v. Texas aren’t about the individual- versus collective-right issue at all. They stand for the proposition that the Second Amendment only restricts the federal government. Cruikshank involved private individuals (the Ku Klux Klan) infringing on the First and Second Amendment rights of individuals (black men trying to vote). In a decision that should be infamous, the Supreme Court said that Congress could not pass civil rights legislation protecting the freedmen from Klan violence.

What does an individual-rights interpretation of the Second Amendment mean for gun control? If we define gun control as measures designed to ensure that ineligible people—those with histories of criminal activity or mental instability—are stopped from buying guns, an individual rights reading of the Second Amendment would actually help this process. The reason that there is a mass movement opposing all gun control measures is directly related to decisions of the courts that do not protect the Second Amendment rights of the American people. Otherwise, we could begin to have a much more productive dialogue on firearms regulation.

SAUL CORNELL: There is tremendous ferment in the field of Second Amendment scholarship and jurisprudence. Most, but certainly not all, scholars and judges think that the controlling precedent, U.S. v. Miller, favors a militia-based view of the amendment. This interpretation is often described as the collective-rights view, but I don’t think it makes sense to continue to talk about two camps in this debate. There are now at least three models for understanding the Second Amendment. Some view it as an individual right, others as a collective right, and some have rejected both of these views and have embraced a third view that might best be described as a civic right.

The individual-rights view comes in at least two radically different forms: an expansive individual-rights view and a limited individual-rights view. For supporters of the expansive individual-rights view, the Second Amendment should be treated in much the same way that we treat freedom of speech. This would subject gun laws to ‘strict scrutiny’ by courts and might undermine some, but certainly not all, existing gun laws. For these scholars, guns and words are identical from a constitutional perspective. For those who favor the limited individual-rights model, private ownership of guns would be protected as an individual right, but would be subjected to the much less stringent “rational basis” test.

The limited collective-rights view, often described as the militia or states’ rights view, obviously poses no serious barrier to government regulation of firearms, so long as such regulation does not disarm the militia. The more expansive notion of the collective-rights view, one held by the whole people, not individuals, has not attracted much scholarly support nor has it generated coherent theory for how gun laws ought to be evaluated by judges.

For those scholars who have grown frustrated with the “either/or” quality of the debate, the concept of a civic right provides a new paradigm for thinking about the right to bear arms. To understand a civic right, one might turn to the analogy between the militia and the jury. Citizens have an obligation to serve on the jury, which both protects liberty and is an essential institution of republican society. Citizens also have the right to bear arms, so that they can meet their obligation to participate in a well-regulated militia. The right protected by the Second Amendment is an odd amalgam of a right and an obligation. If citizens were properly trained and their weapons were approved by the government, properly registered, and stored safely, they would then be entitled to full Second Amendment protection.

JAMES JACOBS: In my judgment, the argument that the Second Amendment does not protect the individual’s right to keep and bear arms actually gets in the way of gun control. As long as gun control advocates insist that gun owners have no constitutional rights and that guns could lawfully be prohibited and confiscated, many gun owners will oppose all proposed gun controls as steps along the road to prohibition.

If, on the other hand, gun control proponents were willing to recognize that the Second Amendment does protect the lawabiding adult citizen’s right to keep and bear arms, the gun control debate could be toned down. We could then focus on what reasonable regulations are compatible with the constitutional right.

If gun owners didn’t have to fear prohibition, they would be more amenable to regulations such as registration and, perhaps, licensing.

RICHARD ABORN: Gun control supporters must attract gun owners to the anti-gun violence movement in order to break the legislative deadlock. When I was president of Handgun Control, I actively supported establishing an organization of gun owners in favor of gun control legislation. Law-abiding gun owners generally agree with most of the legislation that has been proposed. They fully understand the concept of licensing and registration; most agree with one-gun-a-month laws; and they rarely object to requirements for a background check. The tension arises because gun owners are not convinced that gun control supporters don’t secretly harbor a ban agenda, and they wonder if the NRA is right that each step toward greater controls is, actually, a step toward a ban. Advocates must convincingly persuade them that a ban is not the goal.

Is the Second Amendment, as James Jacobs suggests, the way to do this? It’s tempting, but probably not the best way to send the message. To agree to such an individual right might well create a scope of protection never intended. Should the Supreme Court make such a finding, it is unclear how it would classify the right. If the individual right to possess were considered a fundamental right, the curtailment of which is subject to “strict scrutiny,” it is possible that many effective state laws would be struck down. Likewise, many of the laws that have been proposed at the national level could meet a similar fate. Similarly, even if the “rational basis” test were applied, it is unclear which cases would pass constitutional muster.

GREGG CARTER: The individual-rights interpretation of the intent of the Second Amendment is historically accurate. There is strong evidence of an Anglo-Saxon legal tradition that not only allowed but required all free men (non-serfs) to keep and bear arms as early as the seventh century. Every landowner was obliged to keep armor and weapons according to his rank and possessions. This right and duty was transferred to colonial America, where all the colonies individually passed militia laws that required universal gun ownership. There is undeniable historical support for the contention that the Second Amendment protects the right of individuals to keep and bear arms. This is a fundamental claim of the National Rifle Association. However, the examination of history also leads to the conclusion that both state and federal governments can “infringe” upon the possession and carrying of arms.

Many contemporary legislators and judges have not felt the need to be in lockstep with the full intentions of the framers of the Second Amendment. Rather, they recognize the significant changes that have occurred in the United States since 1776, when an armed population was critical to the defense of the new nation. The standing army has now become entrenched in American life, and notions that it is a threat to personal liberty have long ago been dispelled. In the eighteenth century, the protection of home and town were left to the individual or to the militia; but by the middle of the nineteenth century, local police forces were the norm, and by the middle of the twentieth century, national law enforcement agencies were well established. In sum, eighteenth century notions of the purpose and place of the militia in the community are out of step with the twenty-first century, and so too, consequently, is the need to assure the keeping and bearing of arms in private hands.

Statements made by U.S. Solicitor General Theodore Olson in his recent filings should serve to calm gun control advocates. He observed that the individual right to own guns is nonetheless “subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse.” The Second Amendment poses no obstacle to gun control, as it is debated in modern America.

ROBERT SPITZER: The British tradition supports a militia-based and highly restricted view of any claims to individual gun rights, so it is a poor prop for those seeking to promote an individualist view in the United States (e.g., see Bogus, Schwoerer, Wills). Beyond that, there is no direct evidence that the pertinent section in the British Bill of Rights of 1689 was the model for our Second Amendment. Britain is a different country from the United States, and this constitutes, at best, secondary evidence on American law crafted after we became an independent nation. Finally, it diverts attention from the direct evidence, including our own constitutional founding and the debates of the First Congress when the Second Amendment was drafted, debated, and passed.

All of the debate during the First Congress “applied only to men acting in a militia capacity,” including debate over whether the amendment should include wording to codify the right of conscientious objectors to opt out of militia service for religious reasons; the relationship between militias, standing armies, and liberty; the need to subordinate the military to civilian authority; and the unreliability of the militia as compared with a professional army. There was no debate about the amendment serving as a basis for individual gun ownership detached from military service.

The cited Supreme Court cases do address incorporation, noting that the Second Amendment has not been applied to the states. But these cases also describe the Second Amendment right precisely and repeatedly as one pertaining to “a well regulated militia,” as for example in Presser (1886) when the Court said that states could not “prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.” And in 1939, the Miller Court said that the defendant had no Second Amendment right, because the gun in his possession that federal law barred him from transporting across state lines (a sawed-off shotgun) had no “reasonable relationship to the preservation or efficiency of a well regulated militia.” It is utterly senseless to read Miller as saying that the Second Amendment applied to individuals according to whether or not a particular weapon was suitable for militia purposes, because such a reading would provide constitutional protection for individuals to possess weapons that have military value—everything from bazookas to tactical nuclear weapons.

ROBERT J. COTTROL: Presser does not state that the Second Amendment only applies to people acting in a militia capacity. It deals instead with the question of the amendment’s applicability to the states. The Presser opinion also endorses the notion that the whole of the citizenry constitutes the militia and that they cannot be disarmed by state governments.
The issue facing the Miller Court was the question of the 1934 National Firearms Act and its requirement for the registration of sawed-off shotguns. The Court was not faced with bazookas or tactical nuclear weapons. Faced with a sawed-off shotgun, the Court asked whether it was the kind of weapon regularly used for militia purposes—the same question the Tennessee Supreme Court had asked in 1849 in Aymette v. the State (Miller relies heavily on Aymette). In that case the question was whether or not a state statute prohibiting Bowie knives was contrary to the state constitutional guarantee protecting the right to bear arms. The Aymette Court made a distinction between weapons generally used by criminals and those used by law-abiding citizens for their own defense and the common defense. This was the distinction Miller was examining.

ROBERT SPITZER: Presser is, indeed, all about militias. The whole point about the case was that the paramilitary fringe group (headed by Presser) wanted to function as a private militia. The Court said that there was no such thing under the Constitution or the Second Amendment, because military organization, drill, and parade are “especially under the control of the government … they cannot be claimed as a right independent of law.” The legitimate militia at the time, said the Court, was the 8,000-member Illinois National Guard.

JOYCE MALCOLM: The state of legal thinking has overwhelmingly endorsed the view that the individual has a right to possess and bear arms. Daniel Lazare had it right when he wrote in Harpers Magazine in 1999, “The truth about the Second Amendment is something that liberals cannot bear to admit: The right wing is right. The amendment does confer an individual right to bear arms.” Based on what Supreme Court Justice Thomas referred to as “an impressive array of historical evidence,” leading American constitutional experts, including Laurence Tribe, Akhil Amar, Leonard Levy, and William Van Alstyne, agree that the Second Amendment protects a right for the individual to have arms. This interpretation is not, as Robert Spitzer would have it, a product of the gun rights movement tracing back to 1960. It is the original interpretation of the Second Amendment, a legacy of the framers’ rights as Englishmen.

Although Spitzer claims that the English Bill of Rights guarantee to Protestants of “arms for their defence” is militia-based, the text never mentions the militia. Indeed, the drafters rejected the phrase that these arms were “for the common defence.” In her book on the English Bill of Rights, Lois Schwoerer placed the right to have arms among the “rights to the individual.” Parliamentary debates and judicial opinions made it clear that although the final clause, “suitable to their Condition and as allowed by Law,” would permit regulation, an individual right was intended. In 1790, a year before the ratification of the American Bill of Rights and after England’s worst riots of the century, London’s legal advisor explained: “The right of His Majesty’s Protestant subjects, to have arms for their own defence, and to use them for lawful purposes, is most clear and undeniable … and that right, which every Protestant most unquestionably possesses, individually….” In the nineteenth century the guarantee was extended to those of all religions. In a landmark case in 1820, Justice Bayley found: “A man has a clear right to arms to protect himself in his house. A man has a clear right to protect himself when he is going singly or in a small party upon the road.” No mention of the militia here, or a collective right. It was this individual right that the American colonists inherited. The Second Amendment provides an even broader guarantee. It makes no mention of religion or condition, or “as allowed by law.” Madison described his proposed amendments “as guards for private rights” and did not intend to place the Second Amendment in the section of the Constitution dealing with the militia. The most respected constitutional experts of the nineteenth century, Supreme Court Justice Joseph Story and Justice Thomas Cooley, refer to the Second Amendment guarantee of an individual right. Indeed, one reason Justice Taney in the infamous Dred Scott case was insistent blacks could not be citizens was that “It would give to persons of the Negro race … the full liberty of speech in public and in private … and to keep and carry arms wherever they went.”

ROBERT SPITZER: The individual right that Joyce Malcolm discusses actually arose in Britain a century after the 1689 British document was written, after America had established its own country, and it occurred—however the story may be told—in another country. As historian Lois Schwoerer concluded, the British Bill of Rights “did not secure to ‘ordinary citizens’ the right to possess weapons.” Joseph Story explained the Second Amendment expressly as “the right of the citizens to keep, and bear arms” so as to maintain “the importance of a well regulated militia,” although he fretted that “among the American people there is a growing indifference to any system of militia discipline.” Cooley also explained the Second Amendment in militia terms, noting that the right to bear arms extended “to those enrolled” as well as to those who might be needed in a full-scale emergency, because “this enables the government to have a well regulated militia.” Further, while Malcolm mentions a case that is not a Second Amendment case (Dred Scott), she ignores the several cases where the Court did interpret the meaning of the Second Amendment in terms of militia service—in particular, Presser and Miller.

ROBERT J. COTTROL: Spitzer cannot enlist nineteenth century Michigan jurist and legal commentator Thomas Cooley into the ranks of those endorsing the “militia only” view of the Second Amendment. In his 1898 treatise General Principles of Constitutional Law, Cooley was arguing for a robust view of an individual right to arms that included not only the keeping of arms, but the formation of voluntary military or militia units. One of the difficulties in the Second Amendment debate is that there is an assumption that the moment the word “militia” is used, that automatically rules out the Second Amendment as a right of individuals. It does not. The framers’ vision, and the prevailing view throughout the nineteenth century and in Miller, was that the militia was composed of the entire citizenry, or at a minimum the entire free male citizenry. The right was safeguarded to ensure an armed population that was familiar with the use of firearms, so that they could perform militia duty if summoned. That is certainly the view Cooley was endorsing. He was emphatically not endorsing the modern gun control movement’s view that only those formally enrolled in a government-organized, regularly drilling militia had the right to keep and bear arms.

ROBERT SPITZER: Cooley is describing two types of militias—the organized militias that became the National Guard by act of Congress in 1903, and the unorganized or general militias (those Cottrol refers to as “all eligible males”). Cooley makes it clear that these general militias were predicated on men getting and keeping their own weapons, should they be called up. Yet the general militias were still militias, linking personal gun ownership to government militia service. Nowhere in the passage is there any reference to private gun ownership for any private purpose.

JOYCE MALCOLM: There is overwhelming evidence from both federalists
and anti-federalists that the Second Amendment was meant to protect the individual right to be armed. What is lacking is a single eighteenth-century statement that the Second Amendment was meant only to protect a collective right for the militia to be armed. The framers could easily have guaranteed the right of the militia to keep and bear arms; instead, they guaranteed “the right of the people.” During the drafting of the amendment, the senate specifically rejected the suggestion that after “the right of the people to keep and bear arms” they add “for the common defense.” Americans had inherited an individual right to be armed, and the framers intended to protect it.

SAUL CORNELL: While much modern scholarship has presented the Second
Amendment as a choice between two opposing models, there is no reason to assume that the founders or the great commentators of the nineteenth century fit perfectly into either of these models; indeed, they would likely view the ideologies of the NRA and the modern gun control movement as alien. We need to understand these thinkers as products of their own time and not press them into service in our own modern battles. Any efforts to translate these founding era texts into contemporary terms will distort them. We need to separate the task of historical analysis from advocacy. Historical questions must yield historical answers, not answers to contemporary policy questions.

James Madison did not say that all of the rights protected in the Bill of Rights were exclusively or entirely private; in essence, he said that they were primarily individual rights. In the very same document Madison describes the right to have arms protected by the English Bill of Rights in terms closer to the view described by Spitzer, not Malcolm. I think Joyce Malcolm correctly notes that the English courts had expanded the understanding of that right by the middle of the eighteenth century. Such a development, however, is quite distinct from claiming that this was the original meaning of either the English Bill of Rights or the Second Amendment.

Malcolm’s suggestion that we need to find explicit language from the eighteenth century saying that the amendment protects only the right of citizens participating in the militia seems profoundly presentist and ahistorical. The fact is that we don’t see clear evidence of people saying that the right to bear arms ought to be secured outside of the context of the militia, either. Both of these formulations are anachronistic. Neither Malcolm nor anyone else supporting the modern individual rights view of the amendment has produced a single case from the founding era in which someone claimed to be bearing arms in self-defense. No one would deny that the founders believed in a right of individual self-defense. I think it is a serious historical mistake to confuse this notion with bearing arms as part of a well-regulated militia, which was a form of collective self-defense.

JOYCE MALCOLM: The Second Amendment had a dual purpose: to protect an individual’s right to be armed and to afford the people the means, if necessary, to protect their other rights. Saul Cornell seems to be arguing that historical evidence is wrongly used if it is employed to understand the lives and views of the people of an earlier time. It is crucial to appreciate the context in which the founders lived, not to distort historical facts or ignore inconvenient evidence. Historical questions must yield historical answers. That is precisely why the lack of historical evidence for a solely collective interpretation of the Second Amendment is, indeed, a problem for those who deny that there is an individual right.

Part III: The Brady Law and Its Impact

EDITOR: The Brady Law [passed by Congress in 1993] has been hailed as a major success in the effort to regulate guns. Has the Brady Law achieved its objectives? What impact has the law actually had? Which elements of the Brady Law have been the most effective? Which have been the least effective?

JAMES JACOBS: The Brady Law is merely symbolic legislation. It is completely ineffective because it is so easy to circumvent. The Brady Law does not regulate “secondary” sales; any person who buys a gun can immediately sell it to a spouse, lover, friend, or stranger without filling out any paperwork or putting the purchaser through a background check. The seller could even put a “Gun for Sale” ad in the newspaper or over the Internet, or the seller could walk into a gun show with a sign “Handgun for Sale—No Background Check.” Also, any potential gun buyer who knows that he will flunk the background check could just ask (using inducement or threat) his spouse, lover, sibling, friend, or fellow gang member to buy him a gun as a “present.” The Brady Law can also be circumvented by using phony identification that is readily available. Finally, the ineligible purchaser could steal, buy, or borrow a gun on the “black market.” These are a few observations about the Brady Law, which I discuss in more detail in my recent book Can Gun Control Work?

ROBERT SPITZER: In political terms, the Brady Law was a major success for gun control supporters, because it was enacted after a seven year struggle and despite the opposition of the NRA. In policy terms, its goals were very modest (even the NRA supported waiting periods for gun purchases until the mid-1970s). Brady did succeed in imposing a uniform national standard, whereas only about half of the states had background check provisions before 1993. By the government’s count, roughly 600,000 handgun purchases were stopped because of flagged background checks from 1994–2000 (about 2.5 percent of all handgun purchases). Of those, it is reasonable to assume that only a subset would have
resulted in a gun crime, and some subset would presumably obtain a gun illegally. Thus, the statistical impact on overall crime rates is probably little, but not zero. Nevertheless, as a reasonable and low-cost effort to bar or make more difficult the ability of those who should not be able to buy guns, Brady could be counted as a success.
Less widely noted, but arguably more important, was the provision in the Brady Law that significantly increased the fees for gun dealers, so as to force out individuals who obtained dealer licenses to obtain guns at discount instead of actually becoming a dealer (the number of licensed dealers declined from about 300,000 to fewer than 100,000 during this time). The idea that the government should make it more difficult for felons, or those judged mentally unstable, to purchase a handgun seems to be a “no-brainer.” That a titanic political struggle preceded Brady’s enactment speaks mostly to the charged political atmosphere that surrounds gun politics more than to inherent problems with the idea.

GREGG CARTER: The Brady Law’s very modest effects would rise if we enacted a system of national licensing, registration, and regulation of the secondary market where about 40 percent of gun sales occur. The Brady Campaign (the largest and most important organization promoting gun control) makes both large and modest claims about the Brady Law’s effectiveness.
Its large claim is that the significant decline in gun crime in the United States since 1994 is due to the law; this is unfounded. However, its more modest claim — that the interstate flow of guns, and more particularly of guns used in crime, has declined due to the Brady Law — is more tenable. Using the firearms trace database of the Bureau of Alcohol, Tobacco and Firearms, the Brady Campaign found that gun trafficking between four source states (Ohio, Kentucky, Mississippi, and Georgia) and seven recipient states (Michigan, Illinois, New York, Pennsylvania, Missouri, Maryland, and New Jersey — these seven having had background checks before the Brady Law) was greater for guns purchased before the law than after. Implementation of the Brady Law disrupted the established flow of guns across state lines.

DEBORAH HOMSHER: The five-day waiting period for handgun purchases, one of the best-known provisions of the Brady Law, expired in November of 1998. At that time, the FBI implemented a mandatory, computerized National Instant
Check System (NICS), which enabled licensed gun dealers to submit the name of the person seeking to buy a firearm and discover whether that person had a record disqualifying him or her from legally possessing the gun. The establishment of a computerized national check system had been mandated by the original Brady Law. Both the Brady Campaign and the National Rifle Association applauded the implementation of the NICS, though each expressed reservations. The Brady Campaign wanted to reinstate the five-day waiting period, and the NRA opposed a federal plan to charge a fee for every use of the NICS and filed a lawsuit to prevent the Justice Department from retaining records of those individuals who purchased guns.
In February of 1999, a bill was introduced in Congress to reinstate the mandatory waiting period, but that effort has not been successful. The Brady Campaign continues to advocate for the reinstatement of the waiting period, arguing (in a 1999 press release) that “NICS does not include some state and local police records, such as records of persons convicted of stalking, and does not include outstanding misdemeanor warrants on domestic violence or records of involuntary commitments to mental hospitals.” Furthermore, without a mandatory waiting period, “local police departments do not have time to contribute information to the background check, and gun purchasers considering crimes of passion or impulse suicides will no longer have a ‘cooling-off’ period to protect themselves or their victims.”

ROBERT J. COTTROL: As to whether the Brady Law reduces gun crime, I will await the verdict of the dueling econometricians. The Brady Law could have been made a more effective tool to reduce gun crime, however. Where are the prosecutions for the 600,000+ denials of purchases? It is a felony to fill out a firearms purchase form and falsify the required information. Some of the 600,000 were cases of mistaken identity, and others involved people who were unaware of the potential penalties for past offenses that would have made them firearms ineligible. People in these categories probably should not be prosecuted. But a non-trivial percentage consisted of individuals actively engaging in criminal activity. I believe that only a very tiny number of prosecutions has occurred. Why? What good is it to deny a felon a gun at the gun store and then let him proceed to the back alley dealer? Wouldn’t the Brady Law’s effectiveness be greatly enhanced if it were used as a tool to prosecute felons who are illegally trying to get guns?

RICHARD ABORN: The Brady Law had a number of specific goals that were clearly delineated over the many years of the struggle to pass it. To measure it against other goals is unfair to the law and wrongly casts aspersions on future gun control efforts.

Substantively, Brady was designed to accomplish three things. First, it sought to stop felons and other prohibited purchasers from entering retail gun stores and purchasing one or fifty handguns (there is no national limit, and scant few state limits, on the number of guns that can be purchased at any one time), without even a verification of the purchaser’s name, address, or background. Second, as more information came to light about the ease with which a Federal Firearms Licensee (FFL) could get federal licenses to sell guns, Brady was expanded to include a more in-depth application process and a more realistic fee structure, so that the granting of an FFL would be limited to legitimate business people.

Third, Brady was designed to be the cornerstone of a comprehensive national legislative agenda that would close many of the loopholes that its critics have implied Brady was intended to stop. Brady was not intended to be the comprehensive legislation. In fact, supporters were very careful not to make exaggerated claims about its potential. We repeatedly stated that “Brady is designed to do one thing only—stop prohibited purchasers from buying guns in retail outlets.” We were concerned that opponents of gun control (especially the NRA) would criticize Brady for not stopping gun crime, and that is exactly what has occurred.

Politically, Brady was intended to show that gun control advocates could break through the chokehold that the NRA had on Congress. Without a substantial legislative victory, we knew that we would never be able to make additional legislative progress. Measured against stated goals, the outcomes show that Brady does what was intended. With more than 600,000 stops and far fewer FFLs, it is hard to say that Brady has failed. Moreover, without the passage of Brady, there is no question that we would have lost the fight over the ban on assault weapons and the ban on large-volume clips. Should Brady have done more? Of course. Could the bill have contained more? No. Any additions to the bill may well have defeated it.

Gun control advocates should not be claiming that Brady alone is responsible for the sharp decline in violent gun crime, even though gun crime has declined faster than any other category. The causes for the vast reduction in crime will be debated for many years, and it is unlikely that any one factor will be identified as the cause. Certainly, increased sophistication about the allocation and management of police resources has played a key role. But Brady has succeeded in interrupting part of the supply chain of guns at the retail level.

JOYCE MALCOLM: As Robert Spitzer and Gregg Carter both point out, the
Brady Law has had little statistical impact on overall crime rates and at most only modest success. Some of its supporters, however, continue to claim the Brady Law was responsible for the sharp decline in violent crime over the past decade. But this decline began before the law went into effect.

Has the Brady Law achieved its objectives? It has put a background check of purchasers into operation and reduced the number of gun dealers. If, as Richard Aborn suggests, these were its objectives, it succeeded. But Aborn points out that the law was designed to be the “cornerstone of a national policy.” Interestingly, Aborn does not mention any intended impact on the crime rate. Yet the public was led to believe that the larger objective was to prevent felons from obtaining weapons and to reduce violent gun crime. It does not seem to have accomplished either. In this respect, Robert Cottrol’s comment that there have been only a tiny number of prosecutions under the Brady Law is intriguing and regrettable.

RICHARD ABORN: I wish to disagree with Joyce Malcolm’s comment that my list of goals for Brady and beyond does not contain an objective of reducing violent gun crime.

I came to the issue of gun control because of my experience as a violent crime and homicide prosecutor in the Manhattan DA’s office up until the mid-1980s. Doing that work made one painfully aware of the devastating impact that armed criminals were having on the community. The gun control movement primarily seeks to disrupt the illegal gun markets, so as to make it much more difficult for criminals to get guns. While advocates should never argue that gun control is the overall answer to violent crime, it is plausible to argue that comprehensive national controls over the distribution of firearms will have an impact on the rate of violent crime committed with guns. This is most certainly a goal; in fact, it is the most important goal.

Part IV: Public Opinion, Interest Groups, and Gun Laws

EDITOR: Is there a substantial disconnect between public opinion and gun laws? To what extent have interest groups, such as the NRA and the Brady Campaign to Prevent Gun Violence, advanced or thwarted the “popular will” regarding the regulation of guns by Congress or the states? What’s our best evidence for what the “popular will” actually is?

ROBERT SPITZER: “Disconnect” aptly describes the relationship between public opinion and gun laws. Questions on gun control were among the first to be asked with the advent of modern polling in the 1930s, and the results reveal considerable consistency. A 1938 Gallup poll found that 79 percent of respondents favored “firearms control.” Two important long-term traits are evident: overall opinion consistency over time, and variation according to the type of regulation at issue. Short-term fluctuations occur within a relatively high range of support, generally favoring stronger regulations than we have in practice. This is a remarkable degree of consistency in support of stronger laws spanning the last eight decades, a consistency rarely found among the menu of national policy issues.

Opinion polls from the 1980s and 1990s show the greatest support (about 90 percent) for handgun waiting periods. Fully 60–70 percent support the assault weapons ban, and 60–80 percent support handgun registration. Support for a ban on handguns has ranged from a low of 31 percent in 1980 to a high of 52 percent in 1993. Regionally, fluctuations are wider, with the least support for gun measures in the South and rural areas, and greatest support in urban areas and the Northeast.

Unquestionably, the popular will has been thwarted by gun-rights groups. Yet that does not end the debate, because policy questions in a republican form of governance are not normally determined by plebiscite, and interests function legally and legitimately in our political arena. The successes logged by the NRA and its allies underscore the fundamental political axiom that a well-organized and motivated minority may often carry the day politically over a large, but relatively apathetic, majority. On the other hand, gun control measures have been enacted when the public has been sufficiently aroused and attentive because of assassinations or mass shootings.

GREGG CARTER: I agree with Spitzer; there is a serious disconnect between public opinion and our national gun laws. Here are some further examples based upon findings from my 1997 book, The Gun Control Movement. First, although how a survey question is phrased can affect the responses one gets, the various wordings about gun laws result in similar responses. For example, “we should ban all handguns” and “private individuals should not be allowed to possess handguns” yield approximately the same approval rating — 39 percent. Second, across the spectrum of gun control measures, the only one that does not yield an overwhelming majority of support is the total ban of handguns. Third, gun owners are less likely to favor gun laws, but the margins between them and general population are not very large. For example, 81 percent of the general public versus 71 percent of gun owners favor the registration of all handguns. The Brady Law is favored by 87 percent of the general population and 82 percent of gun owners. Fully 64 percent of gun owners, and 69 percent of the general population, favor “one-gun-a-month limits.” Fourth, there is broad support for gun control measures across political parties, ideological views, and race.

Some pro-gun rights scholars have contended that, even though people respond for stricter gun control when asked in a poll, they do not really mean it—that is, the issue isn’t that important to them. However, polling results from the General Social Survey (conducted by NORC) dispute this contention. When asked how they feel about gun measures compared with other public issues, more than 80 percent of Americans responded between “fairly strong” and “extremely strong.”

DEBORAH HOMSHER: I believe that most significant legislative and legal contests concerning gun regulations now take place at the state and city, rather than the national, level. It is true that national advocacy organizations—most obviously, the National Rifle Association and the Brady Campaign to Prevent Gun Violence—shape the discourse and supply their constituencies throughout the states with information (statistics and personal stories) intended to be used as ammunition in the ongoing debates. Because public discussion about gun control has been conducted as a war, with insults, exaggerations, and caricatures deployed by both sides, often as a means to ignite passionate fundraising campaigns, sincere efforts to determine the “popular will” and to discover which laws, police practices, and/or community responses directly contributed to the marked decrease in urban crime rates in the late 1990s have been largely drowned in noise.

I trust reports of polls that find the majority of Americans have long favored gun control legislation. At the same time, I have interviewed people who find gun control campaigns and gun control advocates to be condescending and intrusive.

Certainly, the polls that Spitzer and Carter have cited must be taken as evidence of the popular will in favor of gun regulation. But the passage of right-to-carry legislation in many states must also be viewed as evidence of pro-gun sentiments. Perhaps we might rephrase the question and ask not what the “popular will” is and whether it’s been thwarted, but what kinds of new information, questions, and options ought to be introduced into the public debates that help forge that popular will.

JAMES JACOBS: Toqueville observed that a remarkable feature and strength of our democracy was the tendency of Americans to band together, form groups, and participate in public life. The NRA and the Brady Campaign both reflect and help to shape public opinion. These organizations also help to shape our laws and public policies on firearms. They do not thwart popular opinion but tend to catalyze, shape, and express it.

“Public opinion” is a slippery concept. People’s views on most public policy issues tend to be shallow and susceptible to manipulation; opinion surveys depend upon the phrasing of the question, as well as the manner and body language of the interviewer. Still, certain generalizations can be made. Americans overwhelming reject the idea of prohibiting all firearms or only handguns. Likewise, the overwhelming majority of Americans support severe punishment for persons who use firearms to commit crimes.

ROBERT SPITZER: Public opinion is not as inscrutable, shallow, or easily manipulated as James Jacobs suggests. Opinion formation is the product of long-term forces, initiated by the political socialization process that affects all of us from the time of childhood. People are not blank slates; as the late political scientist V.O. Key noted many years ago, “Voters are not fools.” People have a reasonable understanding of basic public policy matters, including gun control. Polling results do vary according to question wording, but that does not mean that polls mean nothing. There are well-honed standards and procedures that guide and help to ensure the process of accurate opinion gathering and assessment.

JAMES JACOBS: Our best evidence on public opinion about firearms policy arises from the fact that 45 percent of American households own upwards of 250 million firearms, and that as many Americans engage in hunting and target shooting as in jogging and tennis, and that strong gun control has never been popular nationally. From the severe federal and state criminal sentences prescribed for individuals who use guns in crimes, we can also infer a very strong national consensus. There is probably more disagreement among Americans on such firearms regulation as banning “Saturday Night Specials” and assault weapons. Disagreement, in part, reflects the fact that these terms are essentially political, not technical; there is a great deal of ignorance and confusion about the weapons to which they refer.

ROBERT SPITZER: Jacobs’ estimate that 45 percent of the households in the U.S. have one or more guns is surely not right. In the early 1960s, about half of all households did have one or more guns, but this percentage has been gradually declining since then. Today, only about one-third of all households have guns, although the average number of guns per household has increased.

JOYCE MALCOLM: Rather than a “disconnect” between public opinion and gun laws, there seems to be a disconnect between federal and state legislative action. Even as the federal government enacts statutes that ban certain types of weapons and attempts to further control the purchase of firearms, state governments are approving “shall issue” laws that permit all law-abiding individuals to carry a concealed weapon. At last count, 35 states had passed such laws, two in 2003. These include not only southern and western states, but also Pennsylvania, Michigan, and Minnesota.
While the public wants some controls on the ownership and use of guns, polls also show that Americans overwhelmingly believe there is a right for individuals to be armed. Interest groups are not necessarily thwarting the popular will. Rather, there is an unfortunate bias in the national media that overwhelmingly promotes gun control. In so doing, the media fails to provide the balance of views that an informed public needs and deserves.

RICHARD ABORN: The NRA has succeeded in thwarting the popular will on this issue. The more intriguing and difficult question is how. While polls can measure attitudes, they cannot accurately measure the intensity of attitudes. It would be tempting to dismiss the power of the NRA as a function of enormous campaign contributions, but this would be a mistake. The true strength of the NRA lies in its ability to develop at the grass-roots level highly dedicated, zealous supporters, whose only concern in their political life is guns. They show up at town hall meetings; they call in to radio shows; they write letters to the editor; they constantly contact their elected officials; they contribute money; and they vote on one issue guns. In relative terms, their numbers are quite small. Yet in a nation with a low voter turnout, the intensity of NRA supporters is very effective. The single biggest failure of the gun control movement has been our continuing inability to match this grass-roots support.

The NRA zealotry is developed and reinforced by a communications apparatus that has understood the rhetoric that will most appeal to and sustain NRA supporters criminals, not guns, commit crime; the Second Amendment; and the slippery slope to the banning of guns. It is this last argument that is probably the most effective. By arguing consistently, and with great fervor, that the gun control movement is really a gun ban movement, the NRA has effectively enlisted even those gun owners who would otherwise support controls. How? By arguing that we really want to take away all guns, the NRA invests all gun owners with a direct stake in the outcome of the debate, regardless of how reasonable each measure may be. Not only has the gun control movement been ineffective in rebutting this ban argument, but also we have failed to invest a similar stake in those who might be inclined to be supportive. Of course, people support public safety, but by that measure the gun control movement will only be able to succeed during times of high violent crime, while the NRA will continue to mount a sustainable opposition. It is imperative that the gun control movement develop ways to respond to the political strength of the NRA.

SAUL CORNELL: The recent wave of right-to-carry laws can be attributed to a very effective effort of gun rights activists. If these proposals had been put directly on the ballot, I doubt that they would have passed in many states. The scholarly basis for these laws, John Lott and David Mustard’s “more guns, less crime” theory, has been subjected to a number of challenges. In a 2003 Stanford Law Review article, Ian Ayres and John J. Donohue III demolish this thesis. There is a large body of new scholarship emerging in the fields of public policy, history, and law that may help us chart a new middle ground in this contentious issue. The new Second Amendment Research Center that I have created here at the John Glenn Institute at Ohio State University is devoted to exploring this middle ground. We need to move beyond the stale rhetorical formulations that have made it difficult to formulate effective policy.

GREGG CARTER: Several contributors correctly note that the discourse on rational policies is at a gridlock, because of the intransigence of both sides of the gun control debate. This was not always the case, however; only a generation ago, the NRA was a voice of reason and moderation in the gun control debate.

After World War II, nine million veterans re-entered civilian life with a new interest in firearms. Tens of thousands of them joined the NRA, giving it a potential to wield power over public policy greater than ever. However, the membership was little interested in gun control issues per se, but rather in hunting and recreational shooting. Until the mid-1970s, the NRA’s stand on gun control was moderate. During congressional testimony over the proposed Gun Control Act of 1968, for example, NRA Executive Vice President Franklin Orth proclaimed, “We do not think that any sane American can object to placing into this bill the instrument which killed the president of the United States [John F. Kennedy].” At the same time, the NRA endorsed the banning of “Saturday Night Specials” because “they have no sporting purpose and are frequently poorly made.”

Although some of the NRA’s membership and leadership had always opposed any form of gun regulation, they were in the minority. In the mid-1970s, however, this minority began an all-out—and eventually successful—effort to redefine the meaning and the mission of the organization. Executive committeeman Harlon B. Carter led the revolt. He argued that the NRA’s then-moderate viewpoint on gun control was wrongheaded and needed to be replaced by absolute resistance to all forms of gun regulation. He argued that every gun had a legitimate purpose and that every law-abiding person, no matter what age, should have the right to choose his or her own weapon. The redefinition culminated in 1977 in what historians call the “revolt at Cincinnati.” At that year’s NRA Annual Meeting, Carter and his associates used their knowledge of parliamentary procedure to replace the moderate leadership with themselves. Upon coming to power, they labeled their organization the “new NRA.” It would become the modern gun lobby.

DEBORAH HOMSHER: There are hidden assumptions about race at play in these debates. When pro-gun interest groups passionately contend that their members are all responsible gun owners, they obviously make reference to the “criminals.” When that happens, urban drug dealers, often Hispanic or black, quietly figure in the background as the typical criminals. This generalized background portrait of irresponsible, and potentially dangerous, gun owners is not entirely unfounded. African American males were not only dying by gunfire at a high rate throughout the late 1980s and early 1990s, as Gregg Carter notes; they were also shooting. According to the Bureau of Justice Statistics, the majority of homicides during these years were intra-racial; 94 percent of black homicide victims were killed by blacks. Homicides were most often committed with guns, especially handguns. Significantly, however, both the homicide victimization and offending rates for black men in this age group began to decrease during the later 1990s. Why? What happened? Was it due to widespread incarceration? The economy? The end of the crack epidemic? There are lessons to be learned, but advocacy organizations are not well-equipped to conduct objective studies.

I interviewed African-American women living in Camden, New Jersey, who had witnessed the effects of widespread gun use in their communities. Two of them had sons who had been wounded by gun-fire; one had a son who had been killed; one of these young men was serving time