The Second Amendment and Gun Control

Freedom, Fear, and the American Constitution

Kevin Yuill, Joe Street, Kevin Yuill, Joe Street

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351783330
• Edition: 1
• Topic: History
• Subtopic: North American History
• Index: History

The Second Amendment, by far the most controversial amendment to the US Constitution, will soon celebrate its 225th anniversary. Yet, despite the amount of ink spilled over this controversy, the debate continues on into the 21st century. Initially written with a view towards protecting the nascent nation from more powerful enemies and preventing the tyranny experienced during the final years of British rule, the Second Amendment has since become central to discussions about the balance between security and freedom. It features in election contests and informs cultural discussions about race and gender.

This book seeks to broaden the discussion. It situates discussion about gun controls within contemporary debates about citizenship, culture, philosophy and foreign policy as well as in the more familiar terrain of politics and history. It features experts on the Constitution as well as chapters discussing the symbolic importance of Annie Oakley, the role of firearms in race, and filmic representations of armed Hispanic girl gangs. It asks about the morality of gun controls and of not imposing them.

The collection presents a balanced view between those who favour more gun controls and those who would prefer fewer of them. It is infused with the belief that through honest and open debate the often bitter cultural divide on the Second Amendment can be overcome and real progress made. It contains a diverse range of perspectives including, uniquely, a European perspective on this most American of issues.

1
Constitutional mythology and the future of Second Amendment jurisprudence after Heller

Saul Cornell

In District of Columbia v. Heller, the Supreme Court reinterpreted the meaning of the “right of the people to keep and bear arms” as an individual right to possess a weapon for self-defense outside of the context of service in a well-regulated militia.¹ Although Justice Scalia’s majority opinion surveyed a variety of historical materials in Heller, his approach to history was decidedly ahistorical.² Furthermore, although originalists insist that the Second Amendment’s meaning was frozen at the Founding moment, the right to keep and bear arms does not stand outside of history and culture.³ It shares with every aspect of the Bill of Rights a complex and dynamic history.

Among all the rights esteemed by Americans, the right to bear arms seems uniquely able to focus constitutional anxieties and aspirations at key moments in American history. In the eighteenth century, the dominant fear was collective self-defense and the dangers posed by a powerful British-style standing army controlled by the new federal government. Antebellum Americans grappled with the nation’s first gun violence problem, a moment when the market revolution supplied cheap and reliable handguns for the first time. During Reconstruction, Republicans sought to protect the recently emancipated freedmen and later grappled with ways to respond to the armed terror campaign of paramilitary groups such as the Ku Klux Klan. In modern America, champions of gun rights are likely to fear the risk of home invasion or the specter of “Black Helicopters” coming to take away gun owners’ weapons, while gun control advocates are more apt to fear the threat of mass public shootings. Each generation of Americans has debated the meaning of the right to bear arms in terms that reflect the fears, preoccupations, and hopes of their own time.⁴

Judges are not immune to the cultural anxieties and historical myths that have shaped American culture. History plays many roles in modern constitutional adjudication, but relatively little attention has been devoted to way historical myths have shaped modern constitutional law.⁵ To the extent that constitutional scholarship has investigated myths, the focus has been on distinguishing historical reality from the distortions wrought by ideology.⁶ In the field of cultural history and American Studies, the term myth is usually used in a more expansive sense. For scholars of American culture, “myth represents ideology in narrative form.”⁷ Thus, rather than focus exclusively on the distorting impact of ideology, historical and cultural analysis provides a means for understanding why certain conceptions of the past have had such a powerful influence on American culture at particular historical moments, and why certain motifs, images, and genres have enjoyed such longevity over the course of American history.⁸ Simply correcting factual errors associated with such myths does not address the deeper cultural and historical forces that make such myths so pervasive in American culture. One of the most important lessons to be gleaned from an American Studies analysis is that simply correcting errors one at a time is unlikely to have much of an impact on the public debate over guns. Nor will fashioning sophisticated alternative academic theories of the Second Amendment decisively change the public debate over this contentious aspect of American law and politics. To make sense to Americans, policy solutions have to fit a narrative that also makes sense. Correcting the errors spawned and nurtured by mythic histories of the American past are analogous to the problematic cultural frames and cognitions that have tainted debates about gun policy. If “more statistics” has seldom led to “more persuasion” in the great American gun debate, a similar problem confronts those seeking to change public discourse over the meaning of the Second Amendment in American culture and law.⁹

The genius of the gun rights movement has been their ability to frame a message that easily fits on a bumper sticker and can be reduced to a sound bites. By contrast, those who support sensible gun regulation have never been able to articulate a persuasive theory of the Second Amendment that makes sense to Americans and that fits into any of the familiar narratives that have dominated American history. To be sure, the nearly hegemonic language of rights talk in modern America makes discussion about rights much more palatable than calls for greater regulation.¹⁰ The iconic image of guns, and the mythic history of America’s frontier past, ideas that continue to inform American popular culture, generally supports a gun rights narrative, not a pro-regulation one. Still, the Founders were hardly modern libertarians, and even Dodge City, the quintessential western frontier town, was not a Hobbesian state of nature. In fact, Dodge City boasted some of the most robust gun regulations in American history.¹¹

It is well beyond the scope of this chapter to formulate and craft an alternative narrative, a more useable past that would make the history of regulation as central to American historical mythology as the image of the outlaw or gunslinger.¹² Still, a critical analysis of the constitutional mythologies perpetuated and exploited by gun rights culture and its champions is a necessary first step to creating new alternative historical narratives.

James Madison, Davy Crockett, and the right to hunt bears

The myth of the frontier is one of the most enduring in American history.¹³ It has shaped captivity narratives in the colonial era, the dime novels of the nineteenth century, and it continues to inform American movies from the classic westerns of the 1940s to such recent Hollywood franchises as Die Hard and Rambo.¹⁴ The frontier has also been packaged and used to market everything from cigarettes to cars, and it has been central to the selling of firearms for more than a century.¹⁵ Given these realities, it is hardly surprising that during the oral argument in Heller, the most important gun case to reach the Supreme Court in recent memory, Justice Anthony Kennedy embraced the frontier myth with passion, informing the court that the Founders needed their guns to defend themselves against “hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that.”¹⁶ The fact that grizzly bears are indigenous to the western United States, not the eastern, and that few reported instances of bear attacks are evident in either the Philadelphia papers or the writings of the Second Amendment’s chief architect, James Madison, seemed entirely irrelevant to Kennedy’s mythic conception of early American history.¹⁷ It may not be much of an exaggeration to say that Justice Anthony Kennedy’s vote was ultimately won by Fess Parker, the star of Walt Disney’s popular 1954 TV series Davy Crockett.

The same frontier myth has also informed other post-Heller gun decisions in Moore v. Madigan and Peruta v. San Diego. Both cases evoked “the familiar image” of an armed “eighteenth-century frontiersman… obtain[ing] supplies from the nearest trading post.”¹⁸ This folksy frontier image owes more to America’s mythic past than it does to the actual history lived by most Americans in the Founding era. Discussions of the right to hunt were actually quite rare during the debate over the Constitution. If Justice Kennedy’s account of the driving force behind the Second Amendment were accurate demands for such a right would have been made in virtually every state. Yet, the main example of such a demand, a text endlessly recycled by modern gun rights advocates as The Anti-Federalist Dissent of the Minority of Pennsylvania, did not even make it on to Madison’s short list of possible amendments.¹⁹ In Heller, Justice Scalia took this idiosyncratic Anti-Federalist text and through the alchemy of originalist method transformed it into a proxy for what the typical reader of the Constitution would have thought the Second Amendment meant in 1791. Although the Dissent was influential as a statement of a particular backcountry Anti-Federalist ideology, none of its authors sat in the First Congress that drafted the Second Amendment. Despite actively campaigning for seats in Congress on a platform that demanded amendments, these radical Anti-Federalists were decisively defeated in elections for Congress. Rather than represent the thoughts of the typical competent user of English as originalist theory demands, the Dissent represents the voice of backcountry radicals, an odd choice for the foundation for arguments about original meaning.²⁰ Of course, one of the many problems with constitutional originalism is that it assumes a model of consensus history that was abandoned by scholars in the humanities and social sciences decades ago. American Studies scholarship has been deeply informed by theories of meaning and interpretation that link communities of discourse to processes of contestation, a model that acknowledges that this process of contestation is itself a product of deeper ideological and social conflicts.²¹

One concept that has been explored in great detail by scholars in American Studies is the frontier. The bulk of the nation’s population in the eighteenth century was clustered along the coast, not the frontier.²² In 1790, the mean population center of the United States, a standard measure of population distribution, was situated somewhere between Baltimore and Philadelphia, not western Kentucky, northern Maine, or the Ohio valley. Nor is there any evidence that Founders such as George Mason or James Madison were thinking about the plight of this tiny percentage of the American people when they discussed the right to keep and bear arms. The exploits of Daniel Boone and Davy Crockett that were popularized during the Jacksonian era, shared little with the Enlightenment and the republican culture of the Founding era that gave rise to the Second Amendment.²³

Another variant of the frontier myth informed a recent suit brought by the Rocky Mountain Gun Owners Group (RMGO), a group that describes itself as a no-compromise alternative to the NRA.²⁴ The suit challenged the state of Colorado’s ban on high capacity magazines.²⁵ Essentially, the RMGO claimed that Colorado’s history was shaped by its libertarian western heritage. In this mythic history, the West exists as a sparsely populated wilderness peopled by uncivilized tribal societies.²⁶ Its settlement occurs as a result of the rugged individualism of pioneers, mostly men, who conquered the natural world and its aboriginal peoples. In reality, the West has been inhabited for thousands of years and was peopled by individuals who belonged to a wide range of sophisticated societies with complex political structures. The exploration and settlement of the West by Europeans required the assistance of the powerful nation states of the Early Modern era, most notably Spain and France. After the emergence of the newly independent United States of America, the geopolitical realities of the West shifted, but it did not end the role of state actors who remained central to its history.²⁷ Rather than exist as some type of state of nature without government or law, the history of settlement of the West was closely tied to actions of the federal government. Stanford scholar Richard White, one of the America’s most distinguished historians of the West, has persuasively argued that Americans living in the nineteenth-century America West were more directly impacted by the actions of the federal government, and far more likely to experience its power in their day-to-day lives than Americans living in any other region of the nation. “The American West,” White writes, “more than any other section of the United States, is a creation not so much of individual or local efforts, but federal efforts.”²⁸ Federal exploration of the West was indispensable to map the region and stabilize diplomatic relations with the region’s Indian peoples. Although Americans were generally uncomfortable with the idea...