It’s too bad that very few of these uber-patriots will hear of, much less read, a meticulously researched, absolutely persuasive book — Robert J. Spitzer’s Guns across America: Reconciling Gun Rules and Rights(Oxford, May 2015).
Spitzer traces the history of gun laws from colonial times to the present, showing unambiguously that the contemporary assertion of the historical basis for the individual’s “right to bear arms” is a baseless fantasy. In fact, as Spitzer points out, individual gun ownership was not formally judged to have any constitutional basis from the ratification of the Constitution through the end of the 20th century.
Using newly-available digital resources, Guns across America documents the range of gun restrictions following the colonial period. His survey shows that it’s not that constitutionally-guaranteed gun rights are now threatened by oppressive government regulation. Rather, political action by gun rights activists in the last few decades has rolled back gun restrictions that began in the 1780s.
Spitzer writes: “The common notions that gun laws are largely a function of modern, industrial (or post-industrial) America, that gun laws are incompatible with American history and its practices or values, and that gun laws fundamentally collide with our legal traditions or individual rights, are all patently false.”
Early gun laws were comprehensive, ubiquitous, and extensive. Taken together, they covered every conceivable dimension of gun acquisition, sale, possession, transport, and use, including deprivation of use through outright confiscation. … In all of this lawmaking, there is no hint that these laws infringed on anything related to any ‘right to bear arms.’
Spitzer counters the Hollywood version of the Wild West, showing that the kinds of high noon gun fights glamourized in hundreds of movies and dozens of TV series simply didn’t happen.
Carry restriction laws were widely enacted, spanning the entire historical period under examination, but proliferated in the early 1800s, and then exploded in numbers during the post-Civil War period.
In fact, “The western-style shoot-outs glorified in countless books and movies were literally ‘unheard of.’”
One myth down, one to go. This is the big one:
The Second Amendment guarantees individual gun ownership to ensure that an oppressed citizenry always will have the power to oppose an evil government.
The Constitution specifically and explicitly gives the national government the power to suppress by force anything even vaguely resembling rebellion. Rebellion is by constitutional definition an act of treason against the United States. The militias mentioned … are thus to be used to suppress, not cause, rebellion or insurrection.
Despite the present Supreme Court’s assertion that there is a constitutional guarantee of individual gun rights, no other court, and no federal or state law, has previously held so.
Spitzer writes that “firearms rules are as American as gun ownership.”
Examining the history, Spitzer shows that “the debate during the First Congress in 1789 (when the amendment was proposed, debated, revised, and passed) pertained to military/militia/national defense matters. At no time was there any debate or discussion saying or suggesting that the amendment had anything to do with a personal right to guns aside from militia service.”
So much for the conservative, “originalist” argument that the only way to apply the Constitution today is to restrict ourselves to what the framers intended at the time that the document was written. As Spitzer points out, “From the time of its writing in 1789 through the end of the twentieth century, the Second Amendment was interpreted as protecting a right to bear arms only in connection with … militia service.”
This militia-based understanding was confirmed by the Supreme Court most notably in an 1886 case (Presser v.Illinois 13 ) and a 1939 case (U.S.v.Miller 14 ), and in nearly fifty lower federal court cases handed down from the 1940s through the beginning of this century. 15 In fact, no gun law had been declared unconstitutional as a violation of the Second Amendment until what became the Heller case came along [in 2008].
There’s much more in Guns across America, from an examination of assault weapon bans to differences in historical and current state gun laws, most tellingly so-called “Stand Your Ground” laws, which Spitzer shows are a new (and IMO heinous) twist on the ancient right to self-defense.
As Spitzer asks in a chapter title, “How Did We Get from Self-Defense to Shoot First?” He makes his case against these “gun rights” with the same rigourous appeal to data over rhetoric that characterized the entire book:
Two researchers from Texas A&M University drew on FBI Uniform Crime Report data from the U.S. Department of Justice to examine the effects of newly enacted stand your ground laws. Their analysis of the period from 2000 to 2010 found no evidence that such laws deterred crimes, including burglary, robbery, or aggravated assault. They did, however, find an increase in the homicide rate of about 8 percent (about 600 additional homicides per year) in states with the new stand your ground laws, and an approximate increase in justifiable homicides of between 17-50 percent, leading them to conclude that ‘a primary consequence of castle doctrine laws [when applied to public places] is to increase homicide by a statistically and economically significant’ rate.
Of course, race is an unavoidable factor in the application of these laws. Spitzer reports “significant racial differences in the adjudication of stand your ground laws.”
In stand your ground states, the justifiable rates for black on black, black on white, and white on white killings were within one to two percent of each other when compared with non-stand your ground states. But when the killer was white and the victim black, the rate rose to almost 17 percent.
Spitzer argues that the expansion of “stand your ground” laws “question[s] the authority of the state [and] seek[s] to appropriate some of that authority by placing it directly into the hands of armed citizens, yet without any coherent, much less persuasive evidence that such a transfer is necessary or beneficial.”
This review highlights just a small sample of the thorough research and cogent argument that makes Guns across America such a needed addition to the debate over “gun rights” in the United States.