“There is a tragic inevitability of timeliness when one writes a book about guns,” notes Pamela Haag in a revealing new account of the origins of America’s gun industry, The Gunning of America. Haag began writing her book shortly after the horrific mass shooting at Sandy Hook Elementary School in Newtown, Connecticut, where twenty-six were killed in December 2012, and completed an initial draft after the September 2013 shooting at the Navy Yard in Washington, D.C., which killed twelve and injured three. The book’s publication followed soon after the ISIS-inspired attack in San Bernardino last December, in which fourteen people were killed and twenty-two injured. On June 12, a gunman wielding an assault rifle traveled to a gay nightclub in Orlando, Florida, and, declaring allegiance to ISIS in a 911 call, opened fire on a crowded dance floor, killing forty-nine and wounding fifty-three in the worst mass shooting in US history.
President Obama has made at least fourteen public statements in response to mass shootings during his tenure. By now, the pattern of public response is tragically familiar. Cable news covers the atrocities around the clock. Victims’ relatives and political leaders express horror, outrage, and resolve. Editorials call for new laws to limit access to the tools of mass murder. Gun rights advocates respond that the answer lies in getting more guns into the right hands, not in gun bans that will prove ineffectual in a nation that already boasts approximately 300 million guns, or eighty-eight for every hundred people. (The next most gun-soaked country is Yemen, with fifty-five guns for every hundred people.)
A few isolated states may strengthen their gun laws, but at least an equal number will do the opposite. In the year after the Sandy Hook shooting, eleven states made their gun control laws tougher, but at least two dozen states loosened theirs. And on the national stage, nothing will be done. As we saw after Sandy Hook, even when the public overwhelmingly supported a modest bill to extend background checks to private gun sales, the bill never made it out of the Senate.
The Orlando and San Bernardino mass shootings, especially when viewed alongside similar carnage in Paris, make clear that individuals inspired by terrorist groups have eagerly adopted the military-style semi-automatic rifle, capable of shooting multiple rounds of bullets quickly and accurately, as a tool to produce maximum fatalities, mayhem, and fear. We are almost certain to see more such attacks, and as the Orlando event illustrates, they are extremely difficult to prevent, even when a person has been under suspicion, in part because they can be carried out without significant advance coordination or planning. (Omar Mateen, the Orlando killer, was investigated for possible terrorist ties, but the FBI found no concrete evidence to justify taking action against him.)
Can we make such attacks less likely by limiting access to the tools of the terrorist trade? Some have revived calls for a ban on “assault weapons,” a small subset of which were prohibited by federal statute from 1994 to 2004, when the law expired. But as I explain below, that ban had virtually no effect on gun violence. Others have proposed adding “suspected terrorists” to the list of those ineligible to purchase guns at licensed gun stores, a sensible suggestion so long as Congress adopts fair procedures and clear standards for so designating individuals. (At the moment, terror watchlists are notoriously overinclusive, adopted in secret, and virtually impossible to get off of, so significant reform would be necessary.) But expanding the number of those disqualified from purchasing guns will have little effect unless background checks are extended to private “gun shows,” as Senator Charles Schumer has proposed. The issue is certain to be a major topic of the presidential campaign. Whether the specter of assault weapon terrorism will break the political logjam on gun regulation remains to be seen, but the prospects for significant reform are not good.
Meanwhile, gun violence remains at unconscionable levels in the United States, even as crime and homicides have dropped from their historic highs in the 1980s and 1990s. While mass shootings grab the public’s attention, they are a small fraction of the problem. According to the FBI, more than 325,000 people died in gun-related homicides from 1983 to 2012. Yet only 547 of them died in mass shootings involving four or more deaths. Ordinary, non-mass shootings are all too common. In Chicago alone, more than 1,650 people have been shot thus far this year, and the year is only half over. Moreover, most gun deaths are attributable to suicides. In 2013, suicides accounted for almost two thirds of the 36,636 people who died from gunshots.
Like so much else in our society, gun violence and homicide are not fairly distributed. African-Americans are six times more likely to be murdered than whites, and seven or eight times more likely to be the perpetrators of a homicide. (The vast majority of homicides are carried out with guns, and are intraracial.) Men are 3.6 times more likely to be murdered than women. For black men aged fifteen to thirty-four, homicide is the leading cause of death. Most gun homicides occur in cities, and particularly in high-crime areas disproportionately populated by African-Americans. Thus, it is young black men in the inner city who bear much of the lethal cost of the right to bear arms. Not surprisingly, blacks are much less sympathetic to gun rights than whites. Only 24 percent of African-Americans support the right to own a gun, while 57 percent of whites do. Support for gun rights is also strongest in rural areas, where people are understandably more likely to feel a need to protect themselves, given the relative scarcity of police protection.
The United States is an outlier when it comes to guns and gun laws. Most other countries with which we associate ourselves, such as the United Kingdom, Canada, Australia, and the major European nations, have much more stringent gun laws, substantially fewer guns, and markedly lower gun violence.
Little has been done to address gun violence in the United States. Congress has not passed a gun control law since it sought to ban assault weapons in 1994, and that law proved largely ineffectual. It is remarkably difficult to define an “assault weapon.” They are semiautomatic, which means they fire a new bullet with each trigger pull, while automatically reloading. But most guns made today are semiautomatic, so the ban on assault weapons focused on the cosmetic military appearance of certain guns, and was easily evaded by alterations in design. Moreover, while gun rights proponents are hard-pressed to offer a legitimate reason for civilians to own assault weapons, they are used in a very small proportion of gun crimes. Most crimes involve ordinary handguns. So the assault weapon ban did little if anything to advance gun safety and Congress let it lapse in 2004.
The most tangible effect of the ban on assault weapons was to set off a backlash against gun control by American voters in the 1994 midterms, in which the Democrats lost control of the House of Representatives for the first time in forty years. Having learned their lesson, most members of Congress have steered clear of gun control ever since. Meanwhile, the few states that have enacted relatively stringent gun control laws, such as New York and California, reap little benefit as long as neighboring states have lax laws. Of the 8,793 guns recovered from crimes in New York in 2011, for example, 82 percent came from out of state.
The costs of the right to bear arms are not limited to victims of gun violence. The inability of gun laws to keep guns off inner-city streets prompted one of New York City’s most controversial policing tactics—the policy of aggressively stopping and frisking young black and Hispanic men in the city’s high-crime areas. The police said the policy was driven by a desire to deter young men from carrying guns, as a means of reducing gun violence. Some argue that it may have worked, pointing to the fact that violent crime in New York City dropped precipitously while the policy was in place, even as it held steady in the rest of the state.1 I have questioned that assessment in these pages, noting that between 2004 and 2012, police found guns in less than one percent of all stops; that crime began to fall long before the stop-and-frisk policy was instituted; and that general crime levels have not risen since the practice ceased.2
In any event, in 2013, US District Judge Shira Scheindlin declared the stop-and-frisk policy unconstitutional both because it discriminatorily targeted blacks and Hispanics, and because it authorized stops without the constitutionally required objective suspicion of wrongdoing. Mayor Bill de Blasio abandoned it shortly after taking office, but not before it had inflicted years of indignities and injuries on hundreds of thousands of innocent black and Hispanic residents.3
The major force against gun control is well known—the National Rifle Association. The NRA is the most potent civil liberties organization in the nation. It has about five million dues-paying members, and many millions more who respond faithfully to its calls for action. It has an annual budget exceeding $300 million, although it spends only about 10 percent of that on lobbying and political activity. Perhaps most importantly, the NRA has long understood that democratic participation is critical to safeguarding rights. It does not leave protection of the Second Amendment to the courts, but takes matters into its own hands.
The NRA grades every candidate for state or federal elective office on their commitment to gun rights, and supports those with the better grades, regardless of party affiliation. It then tracks their conduct in office to ensure that they remain true to NRA commitments, and punishes those who don’t by campaigning aggressively against them. It concentrates on state legislatures, where most gun laws are passed. With active affiliates in every state and an average membership of 100,000 per state, the NRA has substantial advantages at the local level over gun control organizations, which are much smaller and tend to focus on Washington, where little gets done. (This is beginning to change, as Michael Bloomberg’s new group, Everytown for Gun Safety, is organizing at the local level. But the NRA has a big head start.)
The three books reviewed here each seek to puncture some aspect of the mythology that surrounds gun rights in America. Pamela Haag argues that the gun industry created, rather than responded to, America’s “gun culture.” In Guns Across America, Robert Spitzer shows that gun regulation is as old and well established as the nation itself. And in Do Guns Make Us Free?, Firmin DeBrabander takes on the NRA’s principal claim, namely that the right to bear arms is essential to liberty. He contends that guns actually undermine both liberty and democracy.
For The Gunning of America, Haag mined the archives of the Winchester Repeating Arms Company in New Haven, Connecticut, to recover the story of the gun industry’s origins. In her detailed and elegantly written account, the gun business began as just that—a business. Oliver Winchester owned a shirt factory before he switched to making and selling guns in 1857. To Winchester, guns were just another product. And that is how he marketed them. In “early ads,” Haag writes, “the gun comes across as closer to a plow than a culturally charged object.” Winchester’s principal initial client was the US government, which needed guns whenever it engaged in war. When peace came, Winchester and other manufacturers sold guns to foreign governments girding for or engaged in war—including Turkey, Australia, France, Thailand, and Prussia. Arms were one of America’s earliest exports.
Eventually, however, gun manufacturers turned to the domestic citizenry, who they hoped would provide a less cyclical source of demand. But the manufacturers first had to create that demand. As America’s economy shifted from a frontier agricultural base to an urban and industrial one, the gun was refashioned as a luxury good. The gun “became a thing that served psychological needs more than the pragmatic ones of war, ranching, the conquest of Native Americans, or the rural economy…. What was once needed now had to be loved.”
The legends of the Wild West were particularly useful for this transformation—whether or not they were true. As other historians have noted, the West was far less wild than is typically depicted in fiction. Haag traces the Wild West legends to dime novels. Especially popular in the latter part of the nineteenth century, such novels were written in a formulaic style and sold in large volume. More than five hundred were written about Buffalo Bill Cody alone. In what might be the earliest instance of product placement, their brave heroes delivered justice to villains as often as not with a Winchester rifle. Indeed, Haag writes,
if the Winchester 73 rifle had been a book, it would have been a dime novel: mass-produced with interchangeable plots; mechanical, predictable, requiring little exertion by the user; and delivering its conclusion efficiently and precisely.
Americans love guns, Haag contends, not because they express some essential truth about American individualism, cowboys, or the frontier, but because “we were invited to do so by those who made and sold them at the moment when their products had shed much of their more practical, utilitarian value.”
Haag’s story throws cold water on much of the hype that surrounds gun culture, and reveals the gun industry to have been a business much like any other—branding and rebranding itself to increase demand. But the fact that gun manufacturers successfully exploited notions of frontier individualism, responsibility, and masculinity does not deprive these traits of their appeal today. The gun ads struck a chord, and it is that same chord that the NRA strikes in its political organizing. To note that gun businesses promoted popular ideals in order to sell products does not distinguish them from those who sell shoes, cars, sporting equipment, or aftershave. In the end, the question left unanswered by Haag’s book is why guns have such strong appeal in the United States as compared to other nations.
Robert Spitzer’s Guns Across America offers further evidence for a point the constitutional scholar Adam Winkler made several years ago in Gunfight (2011), namely that the regulation of guns is as old as the gun itself.4 Drawing on an extensive study of state laws done by Mark Anthony Frassetto, Spitzer notes that since before the nation’s founding, and through the nation’s first 150 years, laws regulating the use of guns in America were ubiquitous:5
They spanned every conceivable category of regulation, from gun acquisition, sale, possession, transport, and use, including…outright confiscation, to hunting and recreational regulations, to registration and express gun bans.
In the post–Civil War era, for example, six states prohibited pistols altogether. Wyoming banned all firearms from “any city, town, or village.” This extensive history, Spitzer maintains, shows that regulation is compatible with a right to bear arms as it has been traditionally understood.
The mere existence of these laws does not establish that they are constitutional, however, because the Supreme Court did not recognize an individual right to bear arms until 2008, in District of Columbia v. Heller, and did not apply that right to the states until two years later, in McDonald v. City of Chicago. Still, the lengthy pedigree of gun regulation suggests that it is by no means a foreign or novel concept in our nation’s history. The Supreme Court acknowledged as much when, in Heller, it stressed that the right to bear arms was not absolute, and did not call into question a host of long-standing legal limits, including prohibitions on possession of guns by the mentally ill and felons; laws “forbidding the carrying of guns in sensitive places such as schools and government buildings”; the licensing of gun sales; requirements for safe storage; and bans on “dangerous and unusual weapons.”
As Spitzer points out, more than seven hundred Second Amendment challenges to laws regulating guns have been filed since Heller, including suits opposing laws banning possession by minors, carrying of guns on university campuses, and possession of homemade machine guns. Yet the courts have rejected virtually all of them. Gun rights proponents have sought Supreme Court review of such decisions, more than sixty times, but the Court has routinely declined the invitation. Thus, while the Court was willing to recognize an individual right to bear arms and to invalidate wholesale bans on possession of guns at home, it has shown little inclination to question most existing gun laws.
In light of this record, the principal guardian of gun rights is not the Supreme Court or its interpretation of the Second Amendment, but the NRA. The group has succeeded in blocking passage of laws such as universal background checks that would plainly be consistent with the Court’s Second Amendment jurisprudence. And it has successfully advanced laws that are not required by a constitutional right to bear arms, such as “stand your ground” statutes, which expand the definition of self-defense, or laws immunizing gun manufacturers from liability for injuries caused by illegal use of their guns.
Spitzer offers little in the way of prescriptions that might alter this political reality. He defends bans on assault weapons, even though, as noted above, they have been largely symbolic. He decries “stand your ground” laws, even though there is little evidence that they have resulted in vigilantism.6 And he lauds New York for having some of the toughest gun control laws in the nation, while simultaneously acknowledging that as long as other states do not follow suit, guns will continue to swamp New York’s streets. Such arguments remain largely academic without an adequate response to the NRA and its formidable political power, stemming from its millions of committed members and supporters.
In Do Guns Make Us Free?, Firmin DeBrabander takes direct aim at the NRA’s first premise. Noting that its members’ magazine is called America’s 1st Freedom, and that the organization views the right to bear arms as the cornerstone of liberty, he contends that, in fact, guns make us less free. He maintains that guns render their owners, and the rest of us, fearful, insecure, and unable to engage in public discourse or collective action for the common good: “Guns do not liberate us from fear. They are a symptom of fear’s domination over society.” Because the threat of a gun suppresses debate, an armed society is not only less free, but directly “threatens democracy.”
These are bold claims, and if he could make good on them, they might well undermine gun culture and gun rights. But his arguments are unconvincing. If the existence of gun rights implied the prerogative to take the law into one’s own hands and attack one’s fellow citizens without cause, they would be fundamentally incompatible with the social contract, by which we cede the legitimate use of force to the state in exchange for its protection. But one can plainly believe in gun rights and organized government at the same time; none of the five Supreme Court justices who recognized a right to bear arms in Heller can be accused of being an anarchist. The constitutions of nearly all fifty states recognize an individual right to bear arms, yet organized government persists. Moreover, the principal argument for interpreting the Second Amendment as protecting an individual right to bear arms, as opposed to merely the states’ power to maintain militias, is that it encompasses the notion of self-defense, an ancient legal concept that has coexisted with organized government for centuries.
DeBrabander also contends that by dwelling on guns, gun rights advocates lose sight of greater threats to freedom, such as mass surveillance. But there is no reason one cannot be concerned about both guns and privacy. Indeed, in 2015, the NRA filed an amicus brief supporting the ACLU in its challenge to the NSA’s domestic phone metadata program.
Are guns incompatible with democracy? DeBrabander argues that “they frustrate free speech” and are therefore “at odds with the idea of political discussion.” “A gun,” he writes, “fundamentally severs its bearer from the community of his peers.” The gun rights movement, he charges,
pits the individual against society. Collectives are suspect, groups weak, their members sheeplike, obedient, pliant, and ultimately subservient. Collectives breed collective behavior, which is reprehensible to the movement’s bold, assertive, fearless, and morally certain adherents.
These assertions, notwithstanding the obligatory references to John Locke, Machiavelli, Hannah Arendt, and Michel Foucault, are frankly difficult to square with political reality. The NRA may advocate for an individual right, but its influence derives precisely from collective democratic action. Far from threatening democracy, it expertly deploys the techniques of majoritarian politics. The NRA has achieved its victories not by threats of insurrection but through the classic methods of democracy: debate, dialogue, lobbying, and electioneering. Its source of strength lies not in the weapons its members own or carry, but in the votes they cast and the arguments they make.
Gun control advocates will not make progress until they recognize that the NRA’s power lies in the appeal of its ideas, its political engagement and acumen, and the intense commitments of its members. Until gun control advocates can match these features, they are unlikely to make much progress. That the gun industry may have helped construct modern gun culture does not negate the very real power that culture holds today. Americans apparently want guns for many reasons, but self-protection from dangers, real or imagined, ranks high among them, and the Supreme Court has expressly legitimated that desire. Arguments that such dangers are exaggerated certainly can be made but so far they have not had much purchase.
The long tradition of gun regulations almost certainly means that the Supreme Court will not construe the Second Amendment to invalidate most gun laws on the books today, but that simply leaves the matter to the political process, where the NRA is plainly winning. If history is any guide, it will succeed in thwarting any new gun control initiative prompted by the Orlando massacre. What all three of these books fail to confront is that the most important factor in the state of our gun laws is not the Supreme Court, the Second Amendment, or the gun industry, but the NRA. Without effective countervailing engagement by those who favor gun control, guns will continue to be a central feature in American political life, and books like these will continue to be both tragically timely and ineffectual.
—June 16, 2016
‘Stand Your Ground’ July 28, 2016
See Jeffrey Bellin, “The Inverse Relationship Between the Constitutionality and Effectiveness of New York City’s ‘Stop and Frisk,’” Boston University Law Review, Vol. 94 (2014). ↩
Crime as a whole continued to fall in 2015, according to NYPD statistics, although there were modest increases in homicides (up 5.1 percent), rapes (up 6.3 percent), and robberies (up 2.1 percent). ↩
See Adam Winkler, Gunfight: The Battle Over the Right to Bear Arms in America (Norton, 2011). ↩
See Mark Anthony Frassetto, “Firearms and Weapons Legislation Up to the Early Twentieth Century,” Georgetown University Law Center, January 15, 2013. The study collects gun laws through 1935, but many of these laws remain on the books today. ↩
Both Spitzer and DeBrabander discuss George Zimmerman’s 2012 killing of Trayvon Martin, an unarmed young black man, in connection with the “stand your ground” laws. But they concede that Zimmerman, who was acquitted on self-defense grounds, did not actually invoke that law. The “stand your ground” laws extend to public places the “castle doctrine,” which permits use of lethal force in self-defense in the home without first requiring the homeowner to retreat. However, such laws still require those invoking the defense to prove that they reasonably believed that lethal force was necessary to avert serious physical injury or death. ↩