Debate

Reprinted from Focus on Law Studies, SPRING 2003, Volume XVIII, Number 2, published by the Division for Public Education of the American Bar Association. Copyright 2003, American Bar Association Division for Public Education, 541 N. Fairbanks Ct., Chicago, IL 60611.

Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Gun Laws and Policies: A Dialogue

Guns in American Culture
Guns and Second Amendment
The Brady Law
Public Opinion & Guns
Cross-National Perspectives
Reducing Gun Violence
Contributors and Bibliography

Editor’s Note: Eight social science, humanities, policy, and legal scholars discuss a wide range of viewpoints on the place and regulation of guns in the United States and abroad. The conversation traverses historical perspectives, the origins and meaning of the Second Amendment, federal and state laws regulating guns, the role of public opinion and interest groups in influencing legislation, and strategies to reduce the level of gun violence in the future. See this dialogue also at www.abanet.org/publiced/focus/.

Part I: Guns in American Culture EDITOR (John Paul Ryan): I would like to begin by asking you to talk about the place of guns in American culture. Are guns a special problem in our society? Do we have an exaggerated fear of guns? How have the media and popular culture formed our images and biases of guns, their uses, and public safety?

SAUL CORNELL (Ohio State University / History): The history of guns in American society is a complex story. As is true for so much of our history, the gulf between myth and reality has been vast. Still, myth can be a powerful force in shaping law, politics, and public policy. The well-regulated militia described by the Second Amendment is an excellent case in point. The performance of the militia in the Revolution was mixed at best. Leading military figures in the Revolutionary era urged Americans to lessen their reliance on this venerated ideal and replace it with a more modern and professional military force. After a long debate in Congress, proponents of military reform were defeated by those who continued to fear professional armies and instead supported the idea of the militia. Although willing to nod to this ideal, Congress was not willing to adequately fund the militia they created, so once again the divergence between rhetoric and reality continued.

I find it fascinating that so many gun rights groups today have chosen the image of the minuteman as their symbol. The symbolic power of this icon continues to shape how we view guns. Most people who rally behind this symbol would not welcome the kind of intrusive regulation required to recreate the militia of the founding period. Would people who rail against government regulation of firearms be willing to muster on the town green or at the local mall and allow government to regulate the storage of privately owned weapons, or consent to privately owned weapons being registered or taxed? Once again, myth trumps reality in the great American gun debate.

ROBERT J. COTTROL (George Washington University / Law/History): Guns have played an important role in American history. The best evidence we have is that private gun ownership was widespread for the white population from the beginning of the English settlement of North America. Indeed, from the earliest settlement there was an effort to encourage white migration in order to ensure a population of white men capable of bearing arms. The idea of the universal militia of all free (white) men, bearing their own arms, had its origins in English law and custom. The concept was strengthened in the American context, in part because of the desire to control the black and Indian populations. This idea was further strengthened by the role of the militia in the American Revolution. If the militia’s record in the Revolution was “mixed” (as indeed was that of the Continental Army), the image of the “farmer who fired the shot heard round the world” was a powerful one to the generation that fought the Revolution, and indeed to subsequent generations. The idea that American freedom arose from a revolution started by armed citizens was powerful enough to influence the writing of the Constitution—hence, the Second Amendment.

ROBERT SPITZER (State University of New York at Cortland / Political Science): Regardless of whether guns were prolific or rare in American history, there is no doubt that gun presence and use coincide with America’s earliest history. Guns undeniably played an identifiable role in American habits and development, yet their role was also exaggerated and romanticized even before there was a Hollywood.

The best example of this is American westward expansion, where folklore, and later Hollywood, perpetuated the impression that the West was “won” by gun use. Yet the truth was the opposite. As historians have documented, the American frontier was tamed through the westward movement of farmers, ranchers, businesspeople, tradesmen, and other populations who, when towns and cities were formed, demanded and imposed strict gun controls as a necessary first step toward the establishment of public safety. The impressions that gun fights were common, or that civilian gun-carrying was key to order, are simply false. For example, in the five most violent cow towns of the old West (Abilene, Caldwell, Dodge City, Ellsworth, and Wichita), 45 killings occurred between 1870 and 1885. Of those, only six came from six-shooters; sixteen were by police. Hollywood-style gun fights were virtually unheard of. Nevertheless, this cultural imagery prevails today not only in the United States but around the world. Guns are certainly feared in modern society and rightly so. As any responsible gun owner knows, guns are dangerous implements and should be treated accordingly.

DEBORAH HOMSHER (Cornell University / Asian Studies—Managing Editor of Publications): Perhaps we should ask why these historical questions are so important to us. To answer that question, it’s useful to focus on the more recent past—on the 1990s rather than the 1770s—and the fierce public gun debates during the Clinton years. I would argue that the most passionate advocates of Second Amendment rights and right-to-carry legislation during those years believed that certain definitive American qualities were being lost because of the cultural evolution that had begun in the 1960s, a decade they perceived as the relativistic “anti” years: anti-church, anti-marriage, anti-white-male, anti-war, and anti-gun.

Self-reliance is the key national characteristic valued by those who defend their right to own guns without interference from the local police, the Congress, intrusive medical experts, or Sarah Brady. I am a great fan of self-reliant Americans generally and of our American literature and popular culture featuring male adventurers in gigantic terrains. At the same time, I see that most American adventure narratives featuring hunts and gunfire include few women, and those females who do appear tend to be silly or in need of rescue, or they’re given guns so they can play along. In short, America’s politics and popular culture tend to be markedly masculine.

Public fascination with guns grows most passionate when, in fact, the actual need for guns appears to be waning. Hence the popularity of Buffalo Bill’s Wild West Show in the late nineteenth century, just after America’s frontier had been pacified. Hence the heat of the NRA’s Web site throughout the 1990s, when fewer men were actually buying licenses to hunt deer, crime rates were dropping in the big cities, the Soviet Union had dissolved, and more people found themselves working with their fingertips at computer keyboards like secretaries, not adventurers.

GREGG CARTER (Bryant College / Sociology): Guns do represent a special problem in our society. The level of gun violence in the United States is much higher than in our peer nations, the industrialized democracies of Western Europe, Japan, Australia, New Zealand, and Canada. In one respect, though, we do have an exaggerated fear of guns—gun violence is not spread equally across our social fabric. African American males in their teens and early twenties are, by far, the most likely to suffer such violence. In the 1990s, the rate of homicide due to firearms for black males in their early twenties was 140.7 per 100,000; the same rate for all individuals in their early twenties was 17.1. Similarly, the rate of homicide due to firearms for black teenagers was 105.3 compared with 14.0 for all teenagers. Although the absolute numbers of victims have fallen in recent years, the racial slants in the data remain.

These slants stand in contrast to the high media coverage of shootings involving teenage boys in the late 1990s and early 2000s. All but one of these high-profile incidents have involved white, male teens from small towns and suburbia. Except for the bloodbath at Columbine High School in Littleton, Colorado, shootings of young people in the neighborhoods surrounding our inner-city schools are on par with these high-profile cases, though little publicized except in the local media. In short, white and minority gun violence are treated differently in the national media.

This bias in media coverage is responsible for a great deal of unneeded fear of gun violence. Compared to their poor counterparts, working-class, middle-class, and upper-class Americans have little to fear.

JAMES JACOBS (New York University / Law School): I am not sure that guns are a special problem in our society. Lethal violence is definitely a special problem. It is often asserted that firearms’ availability is the cause of America’s high level of lethal violence. This assertion ought to be regarded as controversial. There are many plausible causes of America’s high rate of lethal violence—e.g., the frontier tradition, the southern code of honor, pockets of extreme poverty amid great material wealth.

The great majority of violent crimes (other than homicides) in the United States are not committed with firearms. And despite the easy availability of firearms in the United States, our suicide rate is not high in comparison to other countries. Thus, I believe that we should be primarily concerned about violence, not firearms.

In research that one of my students and I have been conducting, we have identified more than 50 “gun” magazines commonly available for sale. These magazines can be divided into at least four categories: hunting; target shooting; survivalist; and technical. For the most part, there is nothing sensationalistic or titillating about the content of these magazines, which are read by almost as many Americans as auto magazines. They present guns as a desirable and useful consumer item, like cars. Of course, gun magazines do not provide the only media images of firearms. Movies and television present constant images of guns being used to kill people. Some of these killings (by the bad guys) are offered as examples of evil, while some of these killings (by the good guys) are presented as examples of good.

RICHARD ABORN (The Kamber Group/Senior Counsel & Director of Public Policy): I would suggest that the “special problem in our society” is not with guns, but with gun violence. Whether or not the founders wished to arm the citizenry to ensure that excessive government power could be curtailed (unlikely in my view) or whether or not the West was settled at the end of a blazing six-shooter (equally unlikely in my view) has become largely irrelevant to the contemporary debate over guns. More relevant, the largely romanticized view of guns in American history has become accepted as fact and has been parlayed into a powerful rallying cry for those who oppose gun control legislation. After all, Charlton Heston did not hold an AK-47 over his head.

In a contemporary culture that has a very short attention span, thrives on imagery, and promotes the clash of two diametrically opposed sides as a means of discussing issues, fostering a re-examination of the true role of guns in American history is virtually impossible. It is important, therefore, that gun control advocates be quite clear that their objective is not to eliminate this icon of American culture, but rather to try to control the violence associated with guns.

Do we have an exaggerated fear of guns? I don’t think so. If we did, millions of perfectly reasonable, responsible, and law-abiding Americans would not own them. On the other hand, our experience with the rapid increase in crime from the mid-1980s to the early 1990s has impressed upon us the critical need to respond to the criminality associated with illegal guns.

JOYCE MALCOLM (Bentley College / History): Guns may have come to be seen as a special problem in American society in the last half of the twentieth century, but for most of our history they were viewed neither as a problem nor as peculiar to the United States. As Robert Cottrol points out, the American colonists took from England the tradition of armed individuals responsible for their own safety and for general peacekeeping duties in the larger community. Only one aspect of these duties was service in the militia. Common law, as practiced in both Britain and America, appreciated the need for men and women to be able to defend themselves and permitted them to do so. There was also, of course, a long philosophical tradition that a free man was a man who was armed. All this seems unusual today, not because there is no longer a need for self-defense, but because most governments, including the British government, have not trusted their people to be armed and have, instead, insisted on a monopoly over the use of force. I think many Americans have an exaggerated fear of guns, because both the print and television media are overwhelmingly dominated by those who advocate strict controls on private firearms. Incidents involving shootings are given intense coverage, while situations in which individuals have used firearms to protect themselves or to thwart crimes get far less attention. The result is that the public has come to believe that gun crime and gun accidents are increasing, when in fact gun accidents are greatly reduced and we have enjoyed a decade of sharply declining gun violence. But old stereotypes die hard. The image persists of the gun-toting American living in a violent “cowboy country” in contrast to the unarmed Briton, living in a peaceable land. Neither stereotype is correct. Although an increasing number of Americans own guns, the level of gun violence has been declining; the British are disarmed, and gun violence is increasing.

GREGG CARTER: I beg to differ with Joyce Malcolm. Guns have a longer history of being seen as a special problem in the United States. Congressional deliberations leading to the National Firearms Act of 1934 and the Federal Firearms Act of 1938 were instigated by the gun violence of the Prohibition Era, which culminated in the 1929 St. Valentine’s Day Massacre in Chicago, and by the 1933 assassination attempt on President Franklin Roosevelt. Taken together, the acts banned sawed-off shotguns and placed taxes and other restrictions on the sale of machine guns and automatic weapons.

The assassinations of President Kennedy, Robert Kennedy, and Martin Luther King, Jr., motivated Congress to pass the Federal Gun Control Act of 1968, which banned mail-order purchase of firearms and regulated the interstate transportation and importation of guns and ammunition. Armed Black Panthers fueled additional fear of firearms and the need to regulate their sale, possession, and use.

John Hinckley’s use of a cheap handgun in March of 1981 to shoot President Ronald Reagan and his press secretary, James Brady, helped spur the movement to control guns. Gun control proposals were introduced in Congress; by 1986 the first of these passed as part of the Firearms Owners’ Protection Act. Originally intended to dismantle many gun control provisions, this act did include a prohibition on interstate pistol sales and on the sale of new machine guns. The 1988 Undetectable Firearms Act (banning plastic guns) and the 1993 Brady Handgun Violence Prevention Act (requiring a five-day waiting period and a criminal background check before an individual can purchase a handgun) were also directly traceable to the Reagan tragedy.

In response to a shooting of school children in Stockton, California, in 1989, President George Bush issued an executive order temporarily banning the importation of AK-47s and selected similar rifles. The Stockton incident also sparked the introduction of several bills in Congress to outlaw or restrict assault pistols and rifles. After the election of Bill Clinton, Congress enacted in 1994 the Violent Crime Control and Law Enforcement Act, which banned nineteen different types of assault weapons.

In sum, during the past eighty years we have seen many periods in which firearms have been viewed as out of control in the United States. Public debate on all of our major gun legislation has included reference to our peer nations, almost all of whom had much stronger firearms regulations.

SAUL CORNELL: Anyone who enters into this contentious issue is amazed by the power of historical arguments and symbols in contemporary public discourse on guns. It would be hard to imagine groups favoring an expansive reading of the First Amendment using an eighteenth century printing press the way Charlton Heston has used a musket at the NRA’s conventions. The furor over Michael Bellesiles’ Arming America, a book that argued that Americans in the founding era did not own many guns or have much ability with them, nicely illustrates this point. Bellesiles challenged a mythology that many people hold sacred. It turns out that Arming America and the myth were each caricatures of reality. There clearly was a perception that there were not enough military-style weapons to arm the militia. Americans in the Revolutionary era were more worried that government would fail to arm the people than that government would actively disarm the people.

This is exactly the opposite of the contemporary debate over gun policy. The fascinating questions become: How did we move from the former to the latter situation and how do we interpret a Constitution written in the former world in our own very different world?

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