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Why We Are Losing the War on Gun Violence in the United States pp 107–121Cite as

The Second Amendment and the War on Guns

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Abstract

The right to keep and bear arms is a vital element of the liberal order that our Founders handed down to us. They understood that those who hold political power will almost always strive to reduce the freedom of those they rule, and that many of the ruled will always be tempted to trade their liberty for empty promises of security. The causes of these political phenomena are sown in the nature of man. The U.S. Constitution, including the Second Amendment, is a device designed to frustrate the domineering tendencies of the politically ambitious. The Second Amendment also plays an important role in fostering the kind of civic virtue that resists the cowardly urge to trade liberty for an illusion of safety. Armed citizens take responsibility for their own security, thereby exhibiting and cultivating the self-reliance and vigorous spirit that is ultimately indispensable for genuine self-government. While much has changed since the eighteenth century, for better and for worse, human nature has not changed. The fundamental principles of our regime, and the understanding of human nature on which those principles are based, can still be grasped today. Once grasped, they can be defended. Such a defense demands an appreciation of the right to arms that goes beyond the legalistic and narrowly political considerations that drive contemporary gun control debates.

University Professor, Antonin Scalia Law School, George Mason University; Arlington, Virginia, USA; nlund@gmu.edu. This chapter draws substantially from my paper, “The Right to Arms and the American Philosophy of Freedom, which was published by the Heritage Foundation. https://www.heritage.org/political-process/report/the-right-arms-and-the-american-philosophy-freedom

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Notes

  1. 1.

    In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court reviewed a provision in this statute that subjected short-barreled shotguns to a registration requirement and a tax. The Court declined to invalidate the provision, but neither did the Justices clearly uphold it. The ambiguous Miller opinion could be interpreted to mean either that short-barreled shotguns are not protected by the Second Amendment or that they are protected only if they have military utility. See Nelson Lund [1].

  2. 2.

    State courts, for their part, generally upheld gun regulations under legal tests that practically gave legislatures a blank check. See Adam Winkler [2].

  3. 3.

    554 U.S. 570 (2008).

  4. 4.

    561 U.S. 742 (2010). Beginning in the early twentieth century, the Supreme Court began holding that the Fourteenth Amendment’s Due Process Clause “incorporates” selected provisions of the Bill of Rights, making them applicable to state and local laws. By the time McDonald was decided, most provisions of the Bill of Rights had already been “incorporated” for many years.

  5. 5.

    During the past decade, the lower federal courts have upheld all but a handful of the gun control laws that have been challenged, although there have been dissents from some of these rulings. The Justices recently agreed to review a decision upholding New York City’s restrictive rules on transporting guns outside one’s home. New York State Rifle & Pistol Ass’n v. City of New York, No. 18–280. Like the total handgun bans at issue in Heller and McDonald, these rules are extreme and anomalous. If the Court invalidates the law, it could issue a narrow ruling that applies only to such unusual regulations, or it could write a broader opinion establishing a meaningful right of civilians to carry a gun in public for self-defense.

  6. 6.

    Scalia and Thomas joined the Court in 1986 and 1991, respectively.

  7. 7.

    The four dissenters in Heller maintained that the text and history of the Second Amendment show that it protects only “the right of the people of each of the several States to maintain a well-regulated militia.” 554 U.S. at 637 (Stevens, J., dissenting). The dissenters also argued that even if the Second Amendment did protect an individual right to arms, D.C.’s handgun ban should be upheld. Ibid., 681–723 (Breyer, J., dissenting).

  8. 8.

    For discussions of the original meaning of the Second Amendment and the legal arguments in Heller, see Nelson Lund [5, 6].

  9. 9.

    Like other provisions in the English Bill of Rights, the right to arms provision constrained only the executive, not the legislature, but the right it protected was one belonging to individuals. Bill of Rights, 1 Wm. & M., 2d Sess., c. 2 (1689) (Eng).

  10. 10.

    William Blackstone, Commentaries on the Laws of England, vol. 1, *136.

  11. 11.

    Ibid., *139.

  12. 12.

    Second Treatise of Government, Chap. 7, ¶ 93 (1689).

  13. 13.

    Ibid., Chap. 2, ¶ 6.

  14. 14.

    Ibid., ¶ 8.

  15. 15.

    Ibid., Chap. 3, ¶¶ 18–19.

  16. 16.

    “Prudence, indeed, will dictate that Governments long established should not be changed for light or transient Causes.”

  17. 17.

    Blackstone, Commentaries, vol. 1, *139.

  18. 18.

    The militias of the founding era were fundamentally different from today’s National Guard, which is an all-volunteer organization that constitutes an integrated component of the federal armed forces.

  19. 19.

    10 U.S.C. § 311.

  20. 20.

    See, e.g., Heller, 554 U.S. at 631–34; Adam Winkler [9].

  21. 21.

    Halbrook [8], p. 305 (quoting Documentary History of the First Federal Congress) (emphasis added).

  22. 22.

    Lectures on Law, pt. 3, Chap. 4 (1790–1791), in Kermit L. Hall and Mark David Hall [10].

  23. 23.

    Heller, 554 U.S. at 628.

  24. 24.

    Blackstone, Commentaries, vol. 2, *412.

  25. 25.

    Cesare Beccaria [11]. On Beccaria’s influence in America, see John D. Bessler [12].

  26. 26.

    For evidence, see, e.g., [13,14,15,16,17].

  27. 27.

    MacNeil/Lehrer NewsHour, Dec. 16, 1991, available in LEXIS, Nexis Library, Arcnws File; “Guns and the Law,” Phoenix Gazette, Feb. 22, 1990, at A10.

  28. 28.

    “Kennedy Guard Arrested For Guns,” Chicago Tribune, Jan. 15, 1986, S1, at 9; Elsa Walsh, “Bodyguard’s Gun Charges To Stand,” Washington Post, Oct. 16, 1987, at C2.

  29. 29.

    Pub. L. 103–322, title XI, subtitle A (1994). The claim that these weapons have no legitimate civilian purposes was a canard. As the draftsmen of the statute were well aware, the disfavored weapons were defined by certain cosmetic features, and a great many functionally indistinguishable rifles were unaffected by the statute.

  30. 30.

    Charles Krauthammer, “Disarm the Citizenry. But Not Yet,” Washington Post, April 5, 1996.

  31. 31.

    Joyce Lee Malcolm, “The Soft-on-Crime Roots of British Disorder,” Wall Street Journal, Aug. 16, 2011.

  32. 32.

    David B. Kopel, “The Costs and Consequences of Gun Control,” Cato Institute Policy Analysis No. 784 (Dec. 1, 2015), at 15 (citing statistics from the United Nations Office of Drugs and Crime).

  33. 33.

    See “Iceland—Gun Facts, Figures and the Law,” GunPolicy.org, University of Sydney, http://www.gunpolicy.org/firearms/region/iceland; “Global Study on Homicide 2011,” United Nations Office on Drugs and Crime, http://www.unodc.org/‌documents/data-and-‌analysis/statistics/Homicide/‌Globa_study_on_homicide_2011_‌web.‌pdf; David B. Kopel [18], Chap. 8.

  34. 34.

    See David B. Kopel [19]; “Crime > Violent Crime > Murder Rate per Million People: Countries Compared,” NationMaster, http://www.‌nationmaster.com/country-info/stats/Crime/Violent-crime/Murder-rate-per-million-people; “Global Study on Homicide 2011.”

  35. 35.

    James Q. Wilson [20]. For additional detail on gun control in Canada and Great Britain, see Joyce Lee Malcolm [21] and Kopel [18], Chaps. 3 and 4.

  36. 36.

    “Military calls Fort Hood shooting ‘isolated’ case,” NBC News.com , Nov. 5, 2009, http://www.nbcnews.com/id/33691553/ns/us_news-military/#.VoQpcFLeI8I; Allen G. Greed & Ramit Plushnick-Masti, “Terror or workplace violence? Hasan trial raises sensitive issue,” Arizona Daily Star, Aug. 11, 2013, http://tucson.com/‌news/national/terror-act-or-workplace-violence-hasan-trial-raises-sensitive-issue/article_be513c51-a35d-5b4f-b3a0-13654f019ea6.html

  37. 37.

    Tabassum Zakaria, “General Casey: diversity shouldn’t be casualty of Fort Hood,” Reuters, Nov. 8, 2009, http://blogs.reuters.com/‌talesfromthetrail/2009/11/08/general-casey-diversity-shouldnt-be-‌casualty-of-fort-hood/

  38. 38.

    David Larter, “Sources: Navy officer, Marine fought to take out Chattanooga gunman,” Navy Times, July 24, 2015, http://www.‌navytimes.com/story/military/2015/07/21/sources-navy-officer-marine-shot-chattanooga-gunman/30426817/; Richard Fausset, Richard Pérez-Peña, & Matt Apuzzo, “Slain Troops in Chattanooga Saved Lives Before Giving Their Own,” New York Times, July 22, 2015, http://www.nytimes.com/2015/07/23/us/chattanooga-tennessee-shooting-investigation-mohammod-‌abdulazeez.html?_r=0; Gina Harkins, “Chattanooga shooting investigation: Marine shielded his daughter from terrorists rampage,” Marine Corps Times, Sept. 25, 2015, http://www.marinecorpstimes.com/‌story/military/2015/09/25/chattanooga-shooting-investigation-marine-recruiter-shielded-daughter-from-muhammad-youssef-abdulazeez-rampage/72586592/

  39. 39.

    See, e.g., Crime Prevention Research Center, “The Myths about Mass Public Shootings: Analysis, Oct. 9, 2014, http://crimeresearch.org/wp-content/uploads/‌2014/10/CPRC-Mass-Shooting-Analysis-Bloomberg2.pdf

  40. 40.

    For some examples involving mass shootings, see Kopel, “Costs and Consequences of Gun Control,” at 18.

  41. 41.

    The largest and most sophisticated econometric study of concealed carry laws concluded that liberalizing these regulations produced lower rates of violent crime. See Lott, More Guns, Less Crime. Lott’s findings have been the subject of a long-running academic debate, but none of his critics has demonstrated that liberalization has caused higher crime rates. Apart from the general deterrent effect that Lott tried to measure, there is no doubt that armed citizens frequently use their guns for self-defense, usually without discharging the weapon. This is notoriously difficult to measure, but credible estimates run as high as 2.5 million defensive uses per year. See Gary Kleck and Marc Kleck [23], at 184 tbl.2 (1995) and Gary Kleck [24].

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Authors and Affiliations

  1. Antonin Scalia Law School, George Mason University, Arlington, VA, USA

    Nelson Lund

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Editors and Affiliations

  1. Department of Surgery, University of Florida College of Medicine Jacksonville, Jacksonville, FL, USA

    Marie Crandall

  2. Rutgers New Jersey Medical School, Rutgers, The State University of New Jersey, Newark, NJ, USA

    Stephanie Bonne

  3. NRI, Falls Church, VA, USA

    Jennifer Bronson

  4. School of Public Health, University of Maryland, College Park, College Park, MD, USA

    Woodie Kessel

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Lund, N. (2021). The Second Amendment and the War on Guns. In: Crandall, M., Bonne, S., Bronson, J., Kessel, W. (eds) Why We Are Losing the War on Gun Violence in the United States. Springer, Cham. https://doi.org/10.1007/978-3-030-55513-9_10

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