When James Holmes, a twenty-four-year-old neuroscience student from the University of Colorado, walked into a midnight premiere of The Dark Knight Rises in late July in Aurora, Colorado, and opened fire, killing twelve and injuring fifty-eight, the national spotlight was, once again, trained on America’s peculiar romance with guns, and gun violence. As after the shootings at Columbine, Virginia Tech, and a Tucson shopping mall, gun control advocates revived their calls to ban guns and gun rights advocates renewed their arguments that if more people carried guns, killers like James Holmes might have been stopped. National politicians, meanwhile, including President Barack Obama and Republican nominee Mitt Romney, expressed sympathy but steered clear of proposing any specific reforms, apparently unwilling to take on the National Rifle Association. When, just a few weeks after the Aurora killings, a white supremacist gunned down six worshipers in a Sikh temple in Oak Creek, Wisconsin, the response was virtually identical: plenty of sympathy, but no solutions.
While the Aurora and Oak Creek massacres justifiably sparked the nation’s horror and sympathy, the deeper tragedy is that every single day in this country, more than thirty people are killed by guns. Few of these everyday victims generate national headlines; indeed, gun homicide is so routine that many do not even warrant a local news story. But it is the decidedly nonglamorous, quotidian infliction of death and serious injury by gun owners that deserves our focused and sustained attention. And politicians’ cowardice in the face of the NRA is not the only obstacle to meaningful reform; an even greater hurdle lies in the fact that we seem willing to accept an intolerable situation as long as the victims are, for the most part, young black and Hispanic men.
The United States has had a long romance with firearms. Evidence of the affair can be found as far back as the Constitution, which contains a hotly disputed right to bear arms as the Second Amendment in the Bill of Rights, following only the First Amendment’s protections of speech and religion. Our infatuation with guns pervades popular culture, from Gunsmoke and The Rifleman to gangsta rap, Dirty Harry, and Sam Peckinpah’s glorification of self-defense in Straw Dogs. The NRA has over four million members. Americans own 280 million guns, an average of close to one gun per person in the country. Forty-five percent of American households possess a gun.
The United States also has a long history of gun violence. In 2009, there were 11,493 gun homicides in the US.1 In a comprehensive review of the social science literature, the Harvard Injury Control Research Center found solid evidence that the more guns that are available in a jurisdiction, the higher its homicide rate will be. If George Zimmerman had not been permitted to carry a gun, much less “stand his ground,” Trayvon Martin would probably be alive today.
Like so much else in the United States, the costs of our infatuation with guns are not evenly distributed. In 2008 and 2009, gun homicide was the leading cause of death for young black men. They die from gun violence—mainly at the hands of other black males—at a rate eight times that of young white males.2 From 2000 to 2007, the overall national homicide rate remained steady, at about 5.5 per 100,000 persons. But over the same period the homicide rate for black men rose 40 percent for fourteen- to seventeen-year-olds, 18 percent for eighteen- to twenty-four-year-olds, and 27 percent for those twenty-five and up. In 1995, the national homicide rate was about 10 per 100,000; the rate for Boston gang members, mainly black and Hispanic, was 1,539 per 100,000. In short, it is not the typical NRA member, but young black and Hispanic men in the inner city, who bear the burden of America’s gun romance.
Is there anything to be done about gun violence in America? One solution would be to ban guns. The United Kingdom does that, and its homicide rate is about one quarter that of the United States. But as Adam Winkler notes in Gunfight: The Battle Over the Right to Bear Arms in America, constitutional, political, and practical obstacles stand in the way of any such solution in the US. The constitutional obstacle, the main concern of Winkler’s engaging and erudite account, has existed only since 2008, when, in District of Columbia v. Heller, the Supreme Court struck down a Washington, D.C., gun control law, and for the first time announced that the Constitution’s Second Amendment protects an individual right to bear arms.
Until that time, legal precedent and conventional wisdom held that the Second Amendment protected only a state’s right to maintain a militia, and not an individual’s right to bear arms independent of the state’s need for a militia. (The amendment provides, somewhat awkwardly and ambiguously, that “a well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”) In 1991, former Chief Justice Warren Burger, a conservative Republican, said that the idea that the Second Amendment protected an individual right to bear arms was “one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime.” Yet just seventeen years later, in Heller, five justices proclaimed that the Framers had intended to protect an individual right to bear arms.
Ironically, the NRA did everything it could to stop Heller from reaching the Court. Afraid of a negative result, the organization urged that the case not be filed, tried to take it over when it was, and attempted to render it moot through legislation. All its efforts failed. The Brady Center to Prevent Gun Violence, the NRA’s most consistent nemesis, was also worried, and tried unsuccessfully to dissuade the District of Columbia from appealing the Heller case to the Supreme Court.
In the end, Winkler suggests, both sides may have won. While the Court’s 5–4 decision was widely seen as a victory for gun rights advocates, Winkler argues that the decision was also something of a compromise. At the same time that the Court, with Justice Antonin Scalia writing, recognized an individual’s right to bear arms, it also emphasized that the right did not preclude the close regulation of gun owners. Heller made clear that the state and federal government can bar felons from possessing guns; prohibit the presence of guns in places such as courthouses or schools; license gun sales; ban dangerous and unusual firearms; and in some instances ban possession of guns in public. Despite his avowed commitment to original intent, Scalia pointed to no historical evidence to support these specific regulations, leading Richard Posner to accuse him of practicing “faux originalism.” Nelson Lund, a conservative Second Amendment scholar, said that Scalia did not use originalism at all, but “a disguised and incomplete form of the [Justice Stephen] Breyer interest-balancing approach that Scalia disdainfully dismissed.”
Few other gun control laws have been invalidated since the Heller decision, except for Chicago’s, which was the second most extreme in the nation. Most courts have upheld most laws against guns, referring to Justice Scalia’s list of permitted regulations. Dennis Henigan, the Brady Center’s legal director, told Winkler that Scalia’s opinion was in the end “a pleasant surprise”; it “encompassed our entire agenda. It basically made it very easy for lower courts without a whole lot of difficulty to find that whatever gun law is at issue in the particular case in front of them…had been blessed” by the Supreme Court.
Winkler makes a convincing case that despite the extremist and partisan divisions over gun rights, this sort of compromise—in which an individual right is recognized but may be subject to substantial regulatory limits—is both practically sound and historically supported. As a pragmatic matter, in a country with 280 million guns, a gun ban, he argues, is simply not feasible. Even if a ban were politically possible, it would fail in practice, much as Prohibition did. Many people would not turn in their guns, and a black market would quickly take hold.
Moreover, as a historical matter, the right to bear arms has long existed at the state level. Forty-three of fifty state constitutions recognize an individual right to bear arms. Federal laws, of course, trump state constitutional limits, but most gun regulation is enacted and enforced at the state level, where it must respect the state’s constitutional limits. So most people in the US had a right to bear arms, based on state constitutions, long before the Supreme Court announced a federal right in Heller.
But Winkler also shows that, notwithstanding the NRA’s zealous opposition to virtually any limits on guns (including to bans on assault weapons and “cop-killer” bullets), regulation has coexisted with the right to bear arms from the beginning. In colonial times, citizens were subject to regular inspection of their weapons at “musters,” and many localities mandated safe storage and barred concealed carrying of guns. The “Wild West,” Winkler writes, was much less wild than it is portrayed, and frontier towns routinely required visitors to turn over their guns to the sheriff upon entering town, resulting in little crime or gun violence. The NRA itself, originally organized to improve marksmanship, supported gun control from the 1920s through the 1960s, until a radical contingent took it over in 1977 and installed as its president Wayne LaPierre, who viewed every effort to regulate guns as a move “to eliminate private gun ownership completely and forever.”
Most gun owners, Winkler writes, are far more reasonable than the NRA, with sizable majorities favoring licensing requirements, background checks, and mandatory gun safety lessons for gun purchasers. But the NRA, backed by gun industry dollars, is thought to be so powerful that even quite limited regulatory proposals are often dead on arrival (including, for example, a bill that would have barred purchase of the “drum magazine” James Holmes used to increase the lethality of his assault weapon). An April 2012 PEW Research Center poll suggests that the NRA is winning on this issue, as 49 percent of respondents favored gun rights while 45 percent favored gun control.
In short, the principal impediment to reasonable gun regulation is not the Second Amendment or the Supreme Court, but the unwillingness of politicians—including both presidential candidates—to take on the NRA. We are left, then, with a country awash in guns, and in laws full of loopholes that make it easy to avoid regulation altogether. For example, federal background checks, which have halted more than a million gun sales to felons and other unauthorized persons since they were put in place in 1994, don’t apply to so-called “private sales”—i.e., sales by unlicensed sellers—at gun shows and elsewhere, which account for 40 percent of gun purchases. In addition, the assault weapons ban was ineffectual as written and has since expired. And as Holmes’s purchases of thousands of rounds of ammunition over the Internet illustrate, Web sales are virtually unregulated, making it easy to amass arsenals well beyond any legitimate need. Reforming such laws might not stop someone like Holmes, who had no prior record and apparently obtained his weapons legally, but they would make access to many of the weapons used in mass atrocities more difficult. On past performance, however, it seems doubtful whether the tragedies in Aurora and Oak Creek will lead to meaningful gun regulation. Pew repeated its poll on guns after Aurora and found respondents’ views basically unchanged.
Gun rights advocates are often concentrated in southern, western, and rural regions, where official law enforcement is less present and individualistic notions of self-defense are common. But as I have noted, the people who pay the most in lives lost for our inability to regulate guns effectively are young black men living in the nation’s poorest urban neighborhoods. The racial divide on this issue rarely enters the debate over gun control, but it ought to. Is it morally acceptable to celebrate and protect a right that leads, predictably and consistently, to dramatically and disproportionately reduced life expectancies for young black men?
2 Children’s Defense Fund, Protect Children, Not Guns, 2012. ↩