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The Reasonable Right to Bear Arms

September 2019

The Supreme Court left the door open for reasonable regulations of guns if Congress has the will to act.

Editors Note: We asked Prof. Adam Winkler, a nationally recognized expert on Constitutional law and the history of gun control, to give us his thoughts on how we can steer a middle ground between the right to bear arms and strict gun control. Winkler teaches at the UCLA School of Law and is the author of  Gunfight: The Battle over the Right to Bear Arms in America and a frequent contributor to major national magazines.

Despite what extremists tell us, gun rights and gun control are not mutually exclusive. We can have both. Indeed, the story of guns in America is one of balancing gun rights with public safety, respecting both the right of individuals to have guns and the ability of lawmakers to impose reasonable restrictions on guns to enhance public safety. 

We’ve lost sight of the fact that gun rights and gun control are not mutually exclusive. We can have both. 

Over the past forty years, we’ve lost sight of that balanced approach. America has become entangled in a debate about guns in which the terms are set by extremists on both sides. One side wants guns everywhere and sees any gun control proposal as both an infringement of the Second Amendment and a step down a slippery slope toward total civilian disarmament. The other side dismisses the long history and tradition of gun rights and proposes predictably ineffective reforms that do little to prevent crime but much to anger even law-abiding gun owners.

Gun owners gathered at the Minnesota Capitol in April 2018 to oppose background checks on gun purchases.
Gun owners gathered at the Minnesota Capitol in April 2018 to oppose background checks on gun purchases.

Providing a more nuanced history of guns and gun control in America may pave the way for a more sensible debate over guns.  For example, few citizens realize that gun control is as much a part of the Second Amendment – which refers to a “well regulated Militia” – as is the right to keep and bear arms. As the Supreme Court correctly noted in District of Columbia v Heller (2008), the militias of the founding era were groups of ordinary citizens capable of taking up arms to defend the nation. While the Founders sought to protect the citizenry from being disarmed entirely, they did not wish to prevent government from adopting reasonable regulations of guns and gun owners either.

Although Americans today often think that gun control is a modern invention, the Founding era had a wide range of laws regulating the armed citizenry. There were laws designed to ensure the effectiveness of militias, such as requiring citizens to have guns appropriate for militia service and to appear at mandatory musters where their guns would be inspected. Governments also compiled registries of civilian-owned guns appropriate for militia service, sometimes conducting door-to-door surveys. The Founders had broad bans on gun possession by people deemed untrustworthy, including slaves and loyalists. They required many gun owners to register their weapons, and even conditioned the right on a person’s political leanings. 

Read passages referring to militias and bearing arms in state constitutions ratified before 1791, also in this issue.

Unlike in legend, Old West towns often had gun control. At the OK Corral in Tombstone, Tom McLaury, Frank McLaury, and Billy Clanton, were killed by Wyatt Earp for violating Ordinance 9, which prohibited the carrying of firearms in Tombstone.
Old West towns often had gun restrictions. At the OK Corral in Tombstone, Tom McLaury, Frank McLaury, and Billy Clanton were killed in 1881 by the Earp brothers for violating Ordinance 9, which prohibited the carrying of firearms in Tombstone. 

Later, the Wild West, which occupies the very heart of America’s gun culture, was filled with firearms; yet frontier towns, where the civilized folks lived, often had the most restrictive and vigorously enforced gun laws in the nation at the time. 

Race and racism have also played a central role in the evolution of gun law. America’s founders strictly prohibited slaves and even free blacks from owning guns, lest they use them for the same purpose the colonists did in 1776: to revolt against tyranny. America’s most notorious racists, the Ku Klux Klan, which was formed after the Civil War, made their first objective the confiscation of all guns from newly freed blacks, who gained access to guns in service to the Union Army. In the twentieth century, gun control laws were often enacted after blacks with guns came to be perceived as a threat to whites.

Clearly, earlier generations understood gun rights quite differently from many people today. Gun control is as much a part of the history of guns in America as the Second Amendment. The right to keep and bear arms was never a libertarian license for anyone to have any kind of ordinary firearm, anywhere they wanted. Nor did the Second Amendment protect a right to revolt against a tyrannical government. The Second Amendment was about ensuring public safety, and nothing in its language was thought to prevent what would be seen today as quite burdensome forms of regulation.   

“Reasonable” gun laws have been held constitutionally permissible by the courts for 150 years if they didn’t completely deny access to guns by law-abiding citizens.

For 150 years, “reasonable” gun laws — those that don’t completely deny access to guns by law-abiding people — were repeatedly been held constitutionally permissible by the courts. High-profile shootings sometimes led to significant reform of those laws. The St. Valentine’s Day Massacre of 1929, for example, led to the first major federal gun control effort, and the assassinations of Martin Luther King Jr. and Robert F. Kennedy in 1968 helped speed enactment of the Gun Control Act. Yet little followed in the wake of more recent shootings. 

The Columbine High School shooting in 1999, in which two students killed thirteen people, and the 2011 attempt on Representative Gabrielle Giffords that left a federal judge and five others dead did not spark any meaningful reforms. Only after the Virginia Tech massacre in 2007, the worst school shooting in American history, did Congress act. But the law enacted, designed to improve the reporting of mental health adjudications into the federal background check system, was widely recognized by public policy experts to be partial and ineffective.

The response to the Newtown shooting was in many ways unusual. Americans were shocked to learn that so many young children perished at the hands of a madman. Signs of change came unambiguously from Washington. President Barack Obama, who had disappointed many gun control supporters by avoiding to talk about guns during his first term, immediately called for “meaningful action” to stem the tide of violence. His previous reluctance had been understandable, given the conventional wisdom in Democratic circles that gun control was a losing issue on Election Day. After Newtown, however, the President’s political calculus changed. Having just been reelected, he no longer had to worry about alienating swing-state voters strongly opposed to any regulating of guns.

Other Democrats in Washington also reacted differently to the Newtown shooting than to previous mass killings. Senator Mark Warner of Virginia and Senator Joe Manchin of West Virginia, both longtime opponents of gun control who enjoyed “A” ratings from the National Rifle Association, announced the time had come for law-makers to begin discussing gun control. Senator Warner called the tragedy a “game changer.” The two senators may have been emboldened by the NRA’s poor showing the preceding month, when the organization failed for the second time to persuade enough voters to defeat Barack Obama and also lost numerous down-ballot races. According to a Sunlight Foundation report, the NRA had the worst return on investment of all major political contributors in the 2012 elections. Politicians were beginning to wonder whether the NRA still had the political clout it was often believed to possess. 

In other ways, however, the response to Newtown fit established patterns in America’s debate over guns. Proponents of gun control answered the shooting with a proposal to ban guns. Senator Dianne Feinstein of California promised to introduce on the first day of the new Congress a proposal to reenact the assault weapons law that had been in effect from 1994 to 2004, even though the earlier law had been notoriously ineffective. 

Gun control advocates often reveal a profound misunderstanding of firearms.

In order to exempt commonplace semiautomatic rifles used by hunters and recreational shooters, the law defined the guns whose sale it prohibited partially by superficial characteristics like a bayonet fitting or a pistol grip. Manufacturers easily skirted the law by producing the same guns with the same lethality but without those features. 

Many proponents of gun control reveal their profound misunderstanding of both firearms themselves and the politics of guns. The media were filled with stories that incorrectly called assault rifles such as the Bushmaster “machine guns.” In fact, today’s assault weapons do not have automatic fire like a machine gun. They shoot only one round for each pull of the trigger, just like a six-shooter from the Wild West or the sidearm on every police officer’s hip.

Gun control proponents also failed to recognize how the gun enthusiast community would react to another effort to ban a particular type of fire-arm. While polls show that gun owners overwhelmingly support laws requiring universal background checks for gun purchasers and other limited reforms, banning the Bushmaster and other variants of the military-style rifle, like the AR-15, which is the most popular rifle among consumers today, was destined to maximize resistance to any reform.

The “more guns, less crime” philosophy has not worked to protect Americans very well so far.

The NRA, the uncontested leader of the gun rights movement, also reacted true to form. After refusing to address the shooting for a week, Wayne LaPierre, the NRA’s executive vice president, gave a remarkably tone-deaf speech blaming everything but Lanza’s access to guns for the Newtown shooting: violent video games, the media, the lack of a comprehensive database of people with mental health problems. LaPierre insisted the answer to gun violence was, as usual, more guns: “The only thing that stops a bad guy with a gun is a good guy with a gun.” To ensure that good guys with guns would be there the next time someone tried to kill schoolchildren, he proposed that armed guards be stationed at every single school in America.

More school guards may be of limited help. Resource officer Scot Peterson (right) remained outside during the shooting at Marjory Stoneman Douglas High School. Photo Broward County Sheriff's Office.
More school guards may be of limited help. Resource officer Scot Peterson (right) remained outside during the shooting at Marjory Stoneman Douglas High School. Photo Broward County Sheriff's Office.

The more guns, less crime philosophy has not worked to protect Americans very well so far. Although some studies show that permissive concealed carry laws slightly reduce violent crime rates, other studies show that the positive effect is illusory.

Moreover, other data are irrefutable. The United States has the highest rate of gun ownership of any developed country and the highest rate of gun violence. There is already nearly one gun per person in the United States. We have more guns than anyone, yet we don’t have the idyllic, low-crime society that some imagine a gun-saturated world will bring.

There is also reason for skepticism about stationing armed guards in every school. Columbine High School had an armed guard who engaged in a shootout with Dylan Klebold and Eric Harris, but he was quickly overpowered. The killers had better numbers and more powerful firearms. Fort Hood in Texas also had armed guards, yet a U.S. Army major went on a terrorist rampage there in 2009, killing thirteen.

While better security at schools and elsewhere would be welcomed by many people, we can’t expect to have armed guards at every place where a mass shooting might occur. 

As the list of mass shootings since then indicates, we’ve had mass shootings at department stores, shopping malls, movie theaters, workplaces, festivals, day spas, coffee shops, churches and temples. Unless we intend to turn the country into a police state with armed guards everywhere that people gather, mass shooters will always be able to find victims.

There have been incidents in which an armed civilian, usually someone carrying a concealed firearm, has interfered with a mass shooting and limited the damage.

Perhaps the biggest open question after Heller is whether the Second Amendment protects a right to carry guns in public. While every state allows public carry, some states restrict that right to people who can show a special reason to have a gun on the street. To the extent these laws give local law enforcement unfettered discretion over who can carry, they are problematic. At the same time, however, many constitutional rights are far more limited in public than in the home. Parades can be required to have a permit, the police have broader powers to search pedestrians and motorists than private homes, and sexual intimacy in public places can be completely prohibited. 

We have to admit that there have been incidents in which an armed civilian, usually someone carrying a concealed firearm, has interfered with a mass shooting and limited the damage. We should not be blind to the possibility that guns in trained hands can be an effective lifesaver, given the right circumstances. Yet we should also recognize the limits of making more shootouts our answer to gun crime. Several recent mass shootings took place in states such as Texas with permissive concealed carry laws. None of them, however, were stopped by people with guns, in part because even in these states not very many people want to carry guns.

Moreover, states with permissive concealed carry laws generally don’t require extensive training in order for an individual to obtain a concealed carry permit. An hour or two on the gun range shooting at targets isn’t adequate training to engage in a high-stress shootout in a public place. Indeed, police officers in New York City, who receive more training than what states generally require of concealed carry permit holders, found themselves in a shootout after a man killed a co-worker at the Empire State Building just a few months before Newtown. Nine innocent bystanders were shot—all by the relatively well-trained police officers.

The U.S. has the highest rate of gun ownership of any developed country and the highest rate of gun violence.

Perhaps the mistake begins with the goal of preventing mass killings. Although it takes a high-profile incident like that at Newtown to finally begin discussion about guns and gun control, such shootings are very difficult to prevent. Norway has very restrictive gun laws, yet an extremist went on a killing spree in 2011 and took the lives of sixty-nine people, most of them youths at a summer camp, by gunfire. France also has highly restrictive gun control but suffered a mass shooting in 2012. 

If guns were exceedingly difficult to obtain, then mass shootings would perhaps be rarer. In America, however, guns are everywhere and easy for someone with a criminal intent to acquire. Those guns are here to stay, which means—awful as it is to admit—that mass shootings are here to stay as well.

Gun control efforts would be better spent trying to reduce the daily, routine death toll from guns. Every day in America, nearly forty people die as a result of the criminal misuse of guns. If we can lower that number only slightly, to thirty-nine or thirty-eight, in every month we will save as many lives as were lost at Sandy Hook Elementary School. 

Gun control advocates often complain about the problem referred to misleadingly as the “gun show loophole.” In fact, gun sales at gun shows follow the same rules as gun sales elsewhere. To the extent that gun shows are a problem, it is because they provide a marketplace with a wide variety of guns available to people who otherwise might have difficulty finding such a selection. 

Background checks are one possible reform that could work, if only at the margins.  We could shut down the gun show marketplace by requiring universal background checks on every gun purchaser, no matter who or where the seller is. As of this writing, federal law requires only licensed dealers to conduct a background check before selling a gun; anyone else can sell a gun without verifying that the purchaser is legally allowed to buy it. This gap in the law allows a large number of lawful gun sales to be completed without a background check. That makes no sense if we are committed to making it as difficult as possible for criminals and the mentally ill to obtain guns.

Banning assault weapons would be largely a symbolic act to please people’s desire to do something — anything — even if it was unlikely to save lives. Moreover, assault weapons are rarely used in crime.

Of course, criminals determined to obtain guns will still have other ways to procure them. So, once again, we should be realistic regarding what we can accomplish.

The more one studies America’s gun problem, the more elusive answers to it become. Every proposal has its downside, and no reform can hope to make a serious dent in gun deaths given the 300 million guns already in circulation. 

But we have hope for the future. In the years since Heller, the federal courts have upheld the overwhelming majority of gun control laws challenged under the Second Amendment. Bans on assault weapons have been consistently upheld, as have restrictions on gun magazines that hold more than a minimum number of rounds of ammunition. Bans on guns in national parks, post offices, bars, and college campuses also survived. 

These decisions make clear that lawmakers have wide leeway to restrict guns to promote public safety so long as the basic right of law-abiding people to have a gun for self-defense is preserved.

Perhaps we have now reached a tipping point with the recent shootings in Pittsburgh, El Paso, Dayton, and Odessa. There are actions that can be taken through executive action, if the President is inclined to do it, like requiring federal agencies to share mental health data with the FBI for inclusion in the background check database. Other actions will require legislation such as the bill passed by Congress to tighten up background check laws.

Locating the best way forward often requires us to look back to see where we’ve been. The public, and legislators, need to realize that we can have both an individual right to have guns for self-defense and, at the same time, laws designed to improve gun safety. The two ideas—the right to bear arms and gun control—are not mutually exclusive propositions. In fact, America has always had both.

The Supreme Court's decision in Heller was a compromise: individuals have a right to possess a gun for self-defense, but that right can and should be subject to some regulation in the interest of public safety.

For seventy years, the Supreme Court remained on the sidelines of the gun debate, and the result was anything but a gradual move toward consensus. Instead, the Court's absence allowed the forces of unreason to command the field. Without any Supreme Court decisions firmly protecting the right to bear arms and articulating the scope and limits of that right, extremists were free to cast the Second Amendment in their own preferred terms. Gun rights advocates, fearful that the right to bear arms could be legislated away completely, insisted that almost no forms of gun control were legitimate. Gun control hard-liners, eager to reduce gun violence, could say that "the right of the people to keep and bear Arms" meant no such thing. Debates over gun control proposals didn't focus on their merits as a matter of policy but instead became ensnared in arguments about the history and meaning of the Second Amendment. Neither side felt the need to compromise because total victory was still possible: one day the high court might make their extremist view the law of the land.

Rather than give either side in the gun debate a total victory, the Supreme Court's decision in District of Columbia v Heller validated a compromise position on guns. Individuals have a right to possess a gun for self-defense, but that right can and should be subject to some regulation in the interest of public safety. Private ownership of guns cannot be completely banned, and the civilian disarmament long desired by anti-gun people is now constitutionally impossible. No one can come and take away all the guns, even if many other forms of gun control remain permissible. Unlike the radical right to keep and bear arms envisioned by gun rights and gun control groups—in which the right to own guns cannot coexist with gun safety regulation—Heller stands as a symbol of a truly reasonable right to bear arms in which we can have both.

By making civilian disarmament impermissible, the Court's decision has the potential to restore some measure of reason to the gun debate. Extremists on both sides have obsessed over disarmament for too long. In truth, disarmament has never been a realistic option. There is no political will for it; even if there were, there are just too many guns in America and too many gun owners who would never comply with a law requiring them to turn in their guns.

Guns are permanent in America, and Heller will help all Americans, whether gun rights supporters or proponents of gun control, realize it.