Second Thoughts on the Second Amendment


CALMLY, patiently, with considerable bravery, the instructor at the shooting range shows me how to fire the submachine gun, a MAC-11--the first real gun I have ever held. It jams repeatedly. "That's why they call it a Jam-o-matic," someone says. Finally, anticlimactically, like an idiot, I am shooting up the floor (the instructor told me to aim down). Seven or eight men standing behind me await their turns.

The fully automatic MAC-11--small, relatively lightweight, with little recoil--is less intimidating than the semi-automatic rifles, which I can't quite bring myself to use. I am anxious enough around the handguns. "Lean forward," the instructor keeps telling me, while I lean back, trying to get as far away from the gun as I can. How do thirteen-year-olds do this? I wonder, trying not to hurt myself with a huge, heavy revolver. I jump every time a shot is fired (and can't wait for the guys to stop playing with the machine gun). I can barely get the slide back on one of the semi-automatic handguns. But I'm pleased when I hit the target with the 9mm Glock, the only one of these guns I can imagine being able to use. And when someone offers me a casing from the Walther PPK I've just shot (James Bond's gun, everyone points out), I pocket it.

I've been invited to the shooting range to "observe and try out the right to bear arms in action," along with about twenty other participants in a two-day seminar on guns and the Constitution, sponsored by Academics for the Second Amendment. Funded partly by the National Rifle Association, Academics for the Second Amendment isn't exactly a collection of academic gun nuts--most of its more than 500 members aren't academics, and its president, Joseph Olson, an NRA board member and a professor at Hamline Law School, in Minnesota, seems a rational, open-minded man. But the organization is engaged in a genteel lobbying effort to popularize what many liberals consider the gun nut's view of the Second Amendment: that it confers an individual right to bear arms, not just the right to bear arms in a well-regulated militia.

Since it was founded, in 1992, Academics for the Second Amendment has held four by-invitation-only seminars for academics who share its beliefs about the Second Amendment--or might be persuaded to adopt them. The year before last I asked permission to attend a seminar but was turned down; last year I received an unsolicited invitation, apparently in response to an article in which I had questioned the effectiveness of traditional approaches to gun control.

Don Kates, who is a San Francisco lawyer, a gun aficionado, and the author of numerous articles on guns and the Constitution, leads the seminar energetically, taking only a little time out to show us pictures of his parrot. His approach is scattershot, or spray and pray. Ranging over legal, moral, and practical arguments for private gun ownership, he discusses self-defense and the deterrent effect of an armed citizenry; the correlation between guns and crime; difficulties of enforcing gun controls; bigotry against gun owners; and, finally, constitutional rights. Comments by participants are sometimes sensible and occasionally insane: one man proclaims that mothers should give guns to children who attend dangerous public schools.

"What would you do if you had a fourteen-year-old kid who felt he needed a gun for self-defense?" he asks me repeatedly.

"I'd take him out of school before giving him a gun."

But even among gun advocates there is relatively little support for the rights of juveniles to own guns, or opposition to bans on juvenile ownership. Opposition to gun prohibitions focuses on attempts to disarm more or less sane, law-abiding adults, who are deemed to be endowed with both natural and constitutional rights to self-defense against criminals and despots.

Like moral and legal claims about gun owners' rights, the practical consequences of widespread gun ownership are highly debatable. No one can say with any certainty whether it increases violence or decreases crime. Don Kates speculates that magically reducing the approximately 200 million firearms in circulation to five million would have virtually no reductive effect on the crime rate: according to a 1983 National Institute of Justice-funded study by James D. Wright, Peter H. Rossi, and Kathleen Daly, about one percent of privately owned firearms are involved in criminal activity, suggesting that eliminating 99 percent of the nation's guns would not ameliorate crime. Or would it? Philip Cook, an economist at Duke University and a leading researcher on gun violence, considers Kates's speculation about the uselessness of reducing the number of guns "patently absurd."We can't predict which guns will be used in crimes, he says, even if a relatively small number are used feloniously overall. Reducing the availability of guns would raise their price and therefore reduce their accessibility, to adult felons as well as juveniles. And even if a drastic reduction in the number of guns wouldn't necessarily decrease crime, it would decrease fatalities. Guns are particularly lethal, Cook has stressed: the "fraction of serious gun assaults that result in the victim's death is much higher than that of assaults with other weapons." Since not all gun homicides reflect a clearly formulated intent to kill, Cook reasons, access to guns can increase the lethality of assaults. A decrease in the use of guns, however, might lead to an increase in nonfatal injuries. Robberies committed with guns tend to involve less violence than other robberies because the victims are less likely to resist. (Cook speculates that victims who do resist robbers armed with guns are more likely to be killed.)

Debates about gun ownership and gun control are driven more by values and ideology than by pragmatism--and hardly at all by the existing empirical research, which is complex and inconclusive. Wright, Rossi, and Daly reported that there is not even any "suggestive evidence" showing that "gun ownership . . . as a whole is, per se, an important cause of criminal violence." The evidence that guns deter criminal violence is equally insubstantial, they added, as is evidence that additional gun controls would reduce crime. Many are already in place and rarely, if ever, enforced; or they make no sense. In 1983 Wright, Rossi, and Daly concluded that the "benefits of stricter gun controls . . . are at best uncertain, and at worst close to nil."

As for legal debates about the existence of constitutional rights, empirical data is irrelevant, or at best peripheral. But the paucity of proof that gun controls lessen crime is particularly galling to people who believe that they have a fundamental right to bear arms. In theory, at least, we restrict constitutional rights only when the costs of exercising them seem unbearably high. In fact we argue continually about what those costs are: Does violence in the media cause violence in real life? Did the release of the Pentagon Papers endanger the national security? Does hate speech constitute discrimination? In the debate about firearms, however, we can't even agree on the principles that should govern restrictions on guns, because we can't agree about the right to own them.

How could we, given the importance of the competing values at stake--public safety and the right of self-defense--and the opacity of the constitutional text? The awkwardly drafted Second Amendment doesn't quite make itself clear: "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." Is the reference to a militia a limitation on the right to bear arms or merely an explanation of an armed citizenry's role in a government by consent? There is little dispute that one purpose of the Second Amendment was to ensure that the people would be able to resist a central government should it ever devolve into despotism. But there is little agreement about what that capacity for resistance was meant to entail--armed citizens acting under the auspices of state militias or armed citizens able to organize and act on their own. And there is virtually no consensus about the constitutional right to own a gun in the interests of individual self-defense against crime, rather than communal defense against tyranny. Is defense of the state, and of the common good, the raison d'être of the Second Amendment or merely one use of it?

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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