by Crag R. Whitney;
A Liberal's Case For the Second Amendment.
Part One: Do we have a personal right to own firearms?
I recently finished reading this book, and I was delighted to see someone publish what purported to be a "Liberal's case for the Second Amendment". As a lifelong liberal and gun owner, I find it irritating that those of us who defend the Second Amendment are seen by many as "right-wing gun lunatics". I am always careful to correct this misapprehension wherever I find it. For the record, I am not a right-wing gun lunatic---I am a left-wing gun lunatic, or at least, "left-of-center". Nearly all of my friends own guns, and most of us vote a straight Democratic ticket, or at least did until they left the party over the gun control issue. And so do I; I even voted for George McGovern!
The author, Craig Whitney, has worked as a reporter or foreign correspondent for all of his professional life, and was an editor for the New York Times. Mr. Whitney lives in New York City. He begins his book by explaining that the United States is in a cultural war over guns and has been for over half a century. At the moment, what passes for debate has become so acrimonious that neither side listens to the other at all. It is this impasse that Mr. Whitney hopes to bridge with his book.
When I was in high school in the 50s, the explanation of the 2nd Amendment taught in my civics class was that this law was to protect a states' right to own arms and maintain a militia---not an individual right to own arms. This seemed to be the popular view at that time, even though about half of all American households at that time owned one or more guns. But not everyone agreed with this interpretation, and no one disagreed more strongly than the National Rifle Association. For about a hundred years, the Supreme Court remained silent on the subject, and the rulings of lower courts were conflicting and confusing, while state and local laws were a Hodge-podge ranging from no restrictions whatsoever in some jurisdictions to an outright ban on firearms in others. Finally, in 2008, The Supreme Court ruled in District of Columbia v. Heller that the right to bear arms is an individual right--and you need not belong to a militia to exercise it. Heller applied only to residents of the District of Columbia, but in 2010, in McDonald et al v. City of Chicago, the court ruled that this right may be claimed by all law-abiding American citizens living anywhere in the United States.
Dick Anthony Heller was a government security guard who applied for a permit to keep at home the same handgun which he carried on duty. The permit was denied. A federal appeals court ruled 2-1 that Heller had been denied an individual right protected by the 2nd amendment, and the Supreme Court upheld that decision. Both the appeals court and the Supreme Court said that this individual right is not absolute and is subject to "reasonable restrictions."
The Court said, "Nothing in our opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools or government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." But the court made it clear that to meet the test of reasonableness, laws would have to be narrowly drawn to address a specific public interest, and not just be obstacles arbitrarily thrown up to keep as many people as possible from owning guns. And the burden of proof would be on the state.
Whitney goes on to explain just who owns the 300 million guns in America, and why they desire to do so. In America, gun ownership is a traditional right that goes clear back to the Jamestown and Plymouth settlements. Guns are used for hunting and target shooting as well as for self-defense. (The Heller decision specifically recognizes self-defense as one of the constitutionally protected legitimate uses of guns.) Whitney explains that gun owners come from all social classes, all educational levels, and are found in every profession. Whether you are a truck driver or a teacher, a judge or a stock trader, a waitress or a scientist---you could be one of the hundred million Americans who own guns. And there are also those who fear, detest, and abhor guns, and they can be found in all professions also. It tends to be mostly a cultural thing. If you came from a family that owned and used guns, you approve of guns. And if you didn't--you don't.
I'm not sure I would completely agree with this assessment. Those in white collar professions--those who would have no personal knowledge of how guns are made, or how any other manufactured goods is made--tend to be split 50/50 on the subject, but those in blue collar manufacturing occupations seem to oppose gun control almost unanimously. I spent 40 years in a skilled trade in a manufacturing town, and I find that most people I have worked with are likely to appreciate the craftsmanship that goes into making a gun and see it as an object of art rather than something to be feared. And they also are dubious of any so called "gun control" laws because they see guns as inherently uncontrollable, owing to the ease with which they can be made. The gun, in its simplest form, came into use in the thirteenth century, and thirteenth century technology is all that's required to make one. They will all tell you that no law will ever keep criminals from obtaining guns if they are really determined to have them, for two reasons: One, because we already have 300 million guns in circulation in this country and no one knows where they are. Two, because every machine shop in the country could always make a few guns, with or without the knowledge or consent of the owners. For that reason, almost no one with the skills required to actually make a gun hates guns or fears guns. Rather, they see guns as neutral tools, neither good nor evil. They feel it is the criminals which should be feared, and that gun laws mainly serve to harass and inconvenience law abiding citizens, since criminals can simply ignore such laws as they always have.
Whitney then goes on to examine how the second amendment was included in the Bill of Rights, and what the founding fathers feared and what they hoped to accomplish. Whitney is not a constitutional scholar, but he is a thorough journalist, and he does a fairly exhaustive job. What the founders were afraid of is simply this: That no matter how we drafted our constitution, it was only a piece of paper. Any ambitious general or president could simply tear it up and proclaim himself dictator for life, and if the army backed him, the American experiment with democracy would end then and there. Giving the people the protections of a constitution would be meaningless unless they were also given the physical means to protect that constitution. And the founders fully understood, (as did Mao Tse Tung 150 years later) that political power grows out of the barrel of a gun. So they absolutely did not want a large standing army under federal control. Yet the country had enemies and could be defended only by men at arms.
At this point it is necessary to explain certain terms: "Standing Army," "Select Militia," and "General Militia." Whitney goes to some lengths to explain these terms as they were understood in the late 18th century. A standing army was exactly what is today: an army of soldiers that, even in time of peace, are highly trained, paid, full time soldiers, paid for and commanded by the central government. That is the kind of army which they felt might be trusted to protect us from foreign tyranny, but could not be trusted to protect us from tyranny issuing from our own central government, since professional soldiers usually support whoever signs their paycheck. The second kind of force is the select militia. These are paid, professional soldiers who, in time of peace, work at civilian jobs full time and train as soldiers part time. Our modern National Guard is based on this model. The founders would agree to having only a very small select militia, if any at all. The objection to select militias was that even though they are technically under the command of the individual states, in time of crisis they would likely support the regular army and whoever commanded it. The only other kind of force was the general militia. So what is the general militia? It's every man jack of military age who owns a gun. This was the only force which the founders believed could ever be trusted to protect our liberties if the threat to those liberties came from within the government. And it is this "general militia" that the 2nd Amendment pertains to.
Yet guns were expensive. What if some of the civilian males between 18 and 45 would not wish to purchase them? Congress thought of that too. One year after the Bill of Rights was ratified, they passed a law requiring them do so. Actually, this should not be thought of as the law that required adult males to own guns---most colonial laws or local city laws had already required this for two hundred years. But such laws were a patchwork quilt, and in 1792 Congress moved to standardize them with the Uniform Militia Act. A partial text of that act reads as follows:
"Each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizen shall reside....Every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot pouch and powder horn, twenty balls suited to the bore of his rifle, and a quarter pound of powder; and shall appear, so armed and accoutred and provided, when called out to exercise, or into service......".
If you are looking for evidence that the 2nd Amendment protects an individual right to own arms, you need look no further. The Uniform Militia Act could not place upon every individual free white male the obligation to own arms--if he had not the right to own arms, since one cannot be simultaneously forbidden and also required to do something.
Although Whitney does not mention it, one of the most convincing proofs of an individual 2nd Amendment right was that offered by Nat Hentoff. For many years, Mr. Hentoff opined that the 2nd Amendment offered only a collective right to arms. And numerous essays to that effect were published in our newspapers, always with the editorial comment that "Nat Hentoff is a noted constitutional scholar, and if he says you don't have a right--then you don't." But then several years ago, I saw an essay by Hentoff that said, "Oops! I made a mistake." Hentoff explained that he had become so annoyed with people questioning his opinion that the 2nd Amendment protected no individual rights at all that he had decided to take a full year off work to research the subject and write a book about it that would prove, once and for all, that there is no individual 2nd Amendment right. But the more deeply he looked into it, the more obvious it became that we really do have an individual right to own firearms, and always have had such a right. Hentoff cited many proofs, but the most convincing, in his opinion, was the debate about slavery. Hentoff had researched newspaper editorials and congressional debate covering a span of over 70 years. Right after the constitution was adopted, many people felt that since slavery was contradictory to the principles of this new country, it would have to be repealed immediately. But even those who opposed slavery had serious misgivings. They asked, "If they are not slaves, then wouldn't they be citizens? And as citizens, would they not have an unquestioned constitutional right to own arms? And when armed , would they not return and kill their former masters in revenge? Surely, you and I would."
On the other side of the debate, those favoring immediate abolition would argue: "Yes, they would have an unquestioned constitutionally protected right to arm themselves, and would probably do so. But they do not want revenge. They want only to forget about slavery and start a new life." This debate remained exactly the same for 70 years, from the founding of the nation to the start of the Civil War. Yet at no point could he find a single comment to the effect that the constitution does not protect an individual right to arms. If there was anyone at all who believed this, surely, over 70 years, someone would have said so, since this would have radically altered the terms of the debate.
While Whitney does not mention the issue of freedmen owning guns prior to the Civil War, he does mention a position taken by the Bureau of Freedmen. Mississippi adopted a "black code" in late 1865 forbidding any "freedman, free negro, or mulatto" not serving in the occupying army to have knives or firearms without a local license. This was a sort of "negative 2nd amendment." Black South Carolinians appealed to Congress to invalidate this law as "a plain violation of the constitution." General Daniel E. Sickles issued a military order suspending it, proclaiming, " the constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed. " A joint congressional report in 1866 noted that in South Carolina, "....armed parties are seizing all firearms found in the hands of freedmen. Such conduct is a clear violation of their personal rights as guaranteed by the Constitution of the United States, which declares that 'the right of the people to keep and bear arms shall not be infringed.'"
The congressional response to these outrages against blacks was to give new authority to the Freedmen's Bureau. The Freedmen's Bureau Act of 1866 specified that neither race, color, nor previous condition of slavery could be used to deny anyone the right "to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms."
But the narrative which Whitney then presents shows that over the next decade, as occupying armies left for home and the power vacuum was filled by militias comprised of white war veterans, or by the KKK, blacks did lose their constitutional rights--including the right to vote, the right to a fair trial, and all other rights. But those who took these rights from blacks only did so after first disarming them. The white Northern abolitionists who had paid a heavy price to end slavery now questioned whether they had won the war at all. To reverse the situation in the South might require fighting the war all over again, but the war had taken such a heavy toll that no one had the stomach to do that. So the federal government and its occupying armies just walked away and let the blacks fend for themselves, and the federal courts looked the other way. How could the courts reconcile any of what was going on in the South to the constitution? Well, that would be more easily done if the constitution had not actually promised all those rights, particularly the right to bear arms. So by 1876, some of the courts began to rule that perhaps there was no individual 2nd Amendment right.
There was a massacre in Colfax, LA in 1873, where 150 blacks and two whites were killed. Both sides were armed. Freedmen, under the command of black veterans, feared that the county seat was about to be seized by an armed mob, and they began entrenching and barricading the town to protect it. They held the town for three weeks, but the white militia who were besieging them brought in a cannon, and their defense failed. While they were trying to surrender under a white flag, 150 blacks were gunned down. Two whites also died. State authorities did nothing, but the federal government brought charges against 98 white men for murder, and for conspiracy to oppress or threaten citizens so as to prevent them from exercising rights granted or secured by the constitution. Only six men were actually tried, three were acquitted, and three were convicted of conspiracy. The convictions were appealed to the Supreme Court in the case of The United States v. Cruikshank, and they were acquitted. Their acquittal was based partly on the fact that the court deemed the charges of conspiracy to be too vague. But the court also said that the Bill of Rights grants to citizens no 2nd Amendment rights, nor any rights whatsoever. The court said that the Bill of Rights merely bars Congress from infringing our rights--if someone else wishes to infringe them, people must look to their own protection. Then in 1886, in Presser v. Illinois, the court ruled that individuals had no 2nd Amendment rights--only states had such rights. This radical shift in court rulings away from individual rights was done for one and only one reason: It simplified the oppression of blacks in the South and of immigrant minorities in the North. If you were trying to lay the legal groundwork for a Jim Crow South, this is where it had to start. Until blacks were deprived of the arms to defend themselves, there would be no practical way to disenfranchise them of all their other rights. (If you are shocked that the Supreme Court would take such an openly racist position, keep in mind that the federal bench at that time would have contained mostly the same judges as before the war, and about half of them would have been Southerners, and probably ex-slaveholders.) In one of the grand ironies of judicial history, when the Supreme court finally ruled that all Americans have a 2nd Amendment right to be armed for their own self defense, it was for the benefit of an 80 year old black man--Abe McDonald-- that it did so.
After 1886, the next time the court spoke on 2nd Amendment rights was not until 1939. The National Firearms Act had been passed to suppress the kind of weapons then used in organized crime: machine guns, sawed off shotguns, concealable rifles, silencers, etc. Jack Miller and Frank Layton had been indicted for taking a shotgun with a barrel less than 18 inches long across the border from Oklahoma to Arkansas in violation of the law. A lower court had ruled that the indictment should be dismissed because it violated 2nd Amendment rights. In Miller, the court upheld the law because it could not be shown that a sawed off shotgun has any military use that had any application to a "well regulated militia." The court, at that time, would not agree that the 2nd Amendment related to any personal use of arms, even though it had been understood to have such a relationship for at least the first century after it was written. The view taken in Miller is no longer the majority, but it is not dead with a stake through its heart. Even in Heller, Justice John Paul Stevens based his dissent on Miller. But that view is now the minority, and in Whitney's opinion, will probably be so from now on. The sea change from Miller to Heller did not happen overnight, and was not the creature of just this particular court. According to Whitney, the change of outlook on the 2nd Amendment began within the legal community, particularly among constitutional scholars and particularly at Yale Law School, clear back in the 60s. And the argument for an individual 2nd Amendment right has been developing slowly and inexorably ever since. A change in public attitudes has also been developing since the 60s. Once these two trends were in motion, it would be only a matter of time before the court simply ratified the view that many leading legal scholars have held for a generation.
In all, Whitney makes a pretty convincing case for an individual 2nd Amendment right to own firearms, at least, I found it convincing and so will anyone who takes the time to read his book. One point that he might have made, but for some strange reason chose to omit, is that John Locke lists the "right to self defense", and presumably, the right to arms to secure that defense, as one of the "natural rights of man." Why would the views of Locke have anything to do with our constitution? Because our entire country was founded on the philosophy of John Locke, as articulated in his Second Treatise on Government. In our own Declaration of Independence, the entire text from "We hold these truths" to "Consent of the governed" is lifted word for word from Locke's 2nd Treatise. Every signer of the Declaration of Independence would have been familiar with this work, and many could have recited most of it from memory. It was the "Bible" on which our system was based. Those who founded this country believed that they were doing so to secure the "natural rights of man." And Locke considered the most important right to be the right to life itself, and right of self defense to preserve that life. Is it even conceivable that the patriots who were founding this "Locke-based Utopia" would then have constructed a system that did not include the right to self defense?
Whitney points out that one of the reasons that the right to personal use of arms was not spelled out more specifically in the constitution is that the colonists had always had such a right under British Common Law.
Whitney spends the first half of his book establishing that we do indeed have a personal, constitutional right to own firearms. He then goes on to ask if there are any practical things that can be done to make living in a massively armed society safer? He concludes that there are, and most could be done within existing laws if such laws were consistently and intelligently enforced. This is particularly true with regard to guns in the hands of the mentally ill.