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The Science of the Small

Gun by Gun By Glenn Harlan Reynolds

Gun by Gun
After almost 100 years of pretending the right to bear arms didn't mean much, judges and scholars are changing their minds.
By Glenn Harlan Reynolds
Because of recent events in law and scholarship, it's now possible to imagine reasonable gun controls—those aimed at disarming criminals, rather than honest citizens—and a reading of the Second Amendment that stays true to its original meaning. But this country might have gotten here sooner, and avoided a lot of political acrimony, had judges and academics done their jobs properly.

For decades, the Second Amendment debate has been divided into two camps. One believes that the Second Amendment ("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") protects the right of individual Americans to own guns, in part to ensure that the government can't tyrannize them. This is known as the "individual right" theory. Members of the "collective right" (or "states' right") camp argue that the Second Amendment protects only the right of states to have militias (like the modern-day National Guard) and grants no right to individuals. The individual-right view tends to be championed by opponents of gun control; the collective-right view tends to be held by those who favor it.

Since its publication in 2000, the historian Michael Bellesiles's book Arming America has received extraordinary attention, because many scholars and others thought it provided definitive proof that the right to bear arms rested with the state. Bellesiles claimed to have reviewed masses of probate and other records and argued that—contrary to popular belief—guns were neither common nor kept in homes in early America; instead, they were scarce and often government-owned. Bellesiles's book was seen as a serious rebuke to individual-right scholars and thus a contribution to the case for gun control.

But Bellesiles's thesis had a problem. Scholars like James Lindgren of Northwestern University found that he misrepresented facts in documents he claimed to have reviewed, such as the number and condition of guns listed in early American wills, and that some of those documents don't even exist. (Bellesiles says he reviewed California probate records that turn out to have been unavailable to anyone without access to a time machine: They were destroyed in the 1906 San Francisco earthquake.) Since Arming America appeared, investigative stories in The Boston Globe, The Wall Street Journal, and The National Review have cast severe doubt on Bellesiles's scholarship. Ohio State's Randolph Roth, a leading historian and an expert on American violence, pronounced his book untrustworthy.

This scandal has engendered a certain amount of self-satisfaction among legal scholars, who had expressed early doubts about the book's inconsistency with current research showing historical evidence in support of the individual-right theory. But legal scholars should not give themselves too much credit. For almost a century, courts and legal scholars themselves have embraced the collective-right theory despite overwhelming evidence, as close as the nearest law library, that it was equally ill-founded.

For the first 100 years of the republic, there was little dispute that the Second Amendment guaranteed individual citizens the right to own guns, in part as a check against tyranny. James Madison wrote in The Federalist No. 46 that a takeover by an army controlled by the government would be opposed by "a militia amounting to near half a million of citizens with arms in their hands." Noah Webster (a political thinker as well as a dictionary editor) echoed this point: "The supreme power in America cannot enforce unjust laws by the sword," he wrote, "because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States."

State courts carried this idea into the 19th century, often relying on their understanding of the Second Amendment in the federal Constitution to interpret similar provisions in state constitutions. In the 1840 case of Aymette v. State, for example, the Tennessee Supreme Court concluded that the state constitution's right-to-arms clause protected an individual's right to own military-type weapons, but not concealed knives. The court compared the provision to the federal Constitution's Second Amendment, with one of its purposes being "to keep in awe those who are in power."

But views began to change at the turn of the 20th century. As the northern United States was flooded with immigrants and the South became concerned about its ability to control large numbers of black people, still restive under the yoke of Jim Crow, gun control emerged as a way of trying to control the population. In order to justify disarming undesirable segments of the populace, "respectable society" needed a new theory showing that the Second Amendment belonged to the states, not individuals.

It found the opportunity in United States v. Miller, a 1939 decision that is the Supreme Court's only case in the 20th century about the Second Amendment. In Miller, the Court was asked to decide if the government could limit a private citizen's right to own a sawed-off shotgun. Unanimously, the Court concluded that since there was no evidence in the record that the weapon had a "reasonable relationship to the preservation or efficiency of a well regulated militia, [it could not] say that the Second Amendment guarantees the right to keep and bear such an instrument."

Miller focused on the kind of weapon being challenged. The Justices reached no conclusion on whether the Second Amendment conferred an individual, or a collective, right. Nevertheless, lower federal courts quickly interpreted Miller as requiring the person, not the firearm, to be related to a "well regulated militia" in order to receive protection from the Constitution. By the 1960s, the Miller holding had been stretched beyond recognition, often cited for the proposition that the Second Amendment protects only the National Guard—although Miller says no such thing. And the legal academy paid no attention to the amendment, presumably because they felt that the right was no longer worth protecting: Disarming unreliable Americans became a "liberal" project, and all Americans, in the eyes of many academics, were somewhat unreliable.

Eventually, however, the Second Amendment drew real interest from scholars. In 1989, Sanford Levinson of the University of Texas published an article in the Yale Law Journal entitled "The Embarrassing Second Amendment." He speculated that neglect of the provision stemmed from a "subconscious fear that altogether plausible, perhaps even ‘winning,' interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation."

Levinson's article set off a land rush of scholarship: He is a recognized authority on the Constitution, and sufficiently left-wing that he could not be dismissed as a pawn of the NRA. Many leading constitutional scholars weighed in, including Harvard's Laurence Tribe (who revised his constitutional law treatise to include analysis of the Second Amendment) and Yale's Akhil Reed Amar (who says the Fourteenth Amendment also supports the individual-right theory).

By 2000, there was broad agreement among scholars that the Second Amendment did protect the right of citizens to own guns, though the precise scope of that protection was subject to dispute. Scholars also agreed that the right to arms was subject to reasonable restrictions intended to keep guns out of the hands of criminals and insane people, as long as the restrictions were not simply camouflaged efforts to ban guns.

Last fall, this new trend was recognized by the Fifth Circuit Court of Appeals in United States v. Emerson. The Emerson case involved a federal law banning possession of firearms by those under restraining orders in cases of domestic violence. The defendant, who could not own a gun because he had been ordered to stay away from his wife, claimed the law was unconstitutional. Examining the history of the Second Amendment and the scholarship in the field over the past decade, the court rejected the collective-right view and concluded that the amendment "protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms." But the court went on to state that the right was not absolute, as in the case before it: The lower court had issued a restraining order only after giving the defendant a fair hearing and deciding that he was truly dangerous to others, so disarming him was legitimate under the amendment.

While some gun opponents and legal observers call Emerson a wacky outlier and an irresponsible act of judicial activism, the court may have pointed the way to a more reasonable approach to gun control. The gun issue is divisive in American politics largely because it is falsely treated as an all-or-nothing choice: Either homicidal maniacs will carry howitzers on Main Street, or jackbooted government thugs will confiscate revolvers at midnight. As the Emerson decision shows, however, the individual-right theory allows for neither of these extremes.

The right does bar efforts to disarm Americans as a whole and create a British-style society in which guns are limited to the military and police. But it wouldn't stop the government from passing laws to protect the safety of Americans. Regulations aimed at prohibiting criminals and people with histories of violence from owning guns will face no problems under the individual-right theory. If that view were generally adopted by the courts, a lot of political wrangling would come to an end. Gun owners confident that their rights would be protected would be less likely to oppose minor gun control as a step down a slippery slope.

For decades before Emerson, federal courts undermined their own legitimacy by interpreting the right to bear arms to support their own views. In doing so, they unnecessarily polarized an already discordant national debate. It's likely that the Emerson case represents the beginning of more litigation about the Second Amendment, however, and that decision offers an honest approach to the right. If federal judges continue to build on the good sense of Emerson, they will interpret the Constitution as they should and help defuse one of America's most deeply felt political conflicts.

Glenn Harlan Reynolds is a professor of law at the University of Tennessee.

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