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No argument lights up talk-radio like either side of the Second Amendment. As mass shootings take place with a gruesome alacrity, we refight the same fight—as if we are arguing in place—over what is constitutional and what is not.
The book itself follows the Heller case (District of Columbia vs. Heller), which wandered up the appellate route and became a high-profile case that was argued in 2008. What does the Second Amendment mean—does it mean when the founders said, “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.
Consider the case of Dick Heller, who was a security guard who lived in a rougher part of the District of Columbia. He could carry a gun at work but was unable to get a permit at home. He wanted to carry a gun at home for his own protection.
As court cases go, the holding contoured along the conservative tilt of the Bush II year, with both Roberts and Alito giving the additional push to get to the 5-4 decision. The case was hatched out of the conservative/libertarian Cato Institute and it gained traction. When the final holding emerged from the Supreme Court, they ruled, “The Second Amendment guarantees an individual’s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. United States Court of Appeals for the District of Columbia Circuit affirmed.”
Below is a thoughtful review by Eric Arnesen that was published in the Chicago Tribune when the book was published.
“In recent decades, gun rights and gun control have been high on the list of issues in the cultural war sharply dividing Americans. Gun control’s passionate proponents and opponents clash in the media, city council chambers, state legislatures, Congress, and the courts. What one side perceives as necessary to stem out-of-control violence in urban centers, the other fears as the road to unlawful confiscation and abridgement of constitutional liberties. Fundamentally disagreeing on most of the essentials, the two sides concur that a tremendous amount is at stake. “Guns are lightning rods of American culture,” observes law professor Adam Winkler in his “Gunfight: The Battle over the Right to Bear Arms in America.”
The “stark, black-or-white, all-or-nothing arguments that have marked the gun debate in America over the past forty years or so” are counterproductive, Winkler insists. “[O]verheated” public debate results in unnecessary polarization and poor public policy. Taking exception to the arguments of both sides, Winkler invokes history to establish what he sees as a middle ground: Throughout American history, Americans have possessed both a gun culture and a gun control culture. Americans’ devotion to guns has been accompanied by extensive regulation of those guns. Today, he feels, should be no different.
In the early Republic, the Second Amendment was no barrier to strict laws governing firearms. The founding generation kept guns out of the hands of slaves, free blacks, and loyalists who opposed the American Revolution. Officials in some communities counted and registered guns and public safety prompted safe storage laws that mandated unloaded weapons by requiring the storage of gunpowder on a building’s top floor. After the Civil War, former Confederates forcibly disarmed freedmen in the South, while in the so-called Wild West, frontier towns prohibited concealed weapons. The need to combat heavily armed gangsters led to prohibitively high taxes on particularly deadly weapons during the Great Depression. When the radical Black Panthers took to exercising their legal right to brandish weapons openly, California legislatures, with Governor Ronald Reagan‘s support, passed tough measures to disarm them. In many instances, the National Rifle Association went along with modest controls in the name of public safety.
But what about the Second Amendment? Does the right to bear arms apply to a well-regulated militia alone or to individuals as well? For decades, the belief that the amendment “guarantees a collective rather than an individual right,” as one court put it, prevailed in both law and public opinion. That began to change in the 1970s. A growing backlash against gun regulations, a sharp political shift inside the NRA, and a flourishing of pro-gun scholarship (in part funded by pro-gun groups) transformed the debate. Anti-gun control activists loudly insisted that the Second Amendment guaranteed an individual’s right to gun ownership and that government efforts at regulation were unconstitutional. Political lines were now starkly drawn.
Winkler centers “Gunfight” on the landmark 2008 Supreme Court case, Washington, D.C. v. Heller. At issue was a D.C. law the nation’s strictest — outlawing handgun possession and requiring rifles and shotguns to be disassembled or trigger-locked. His protagonist is Alan Gura, a lone libertarian attorney fighting not just the D.C. city government but also the NRA, which feared an adverse decision and attempted to scuttle his case. Ultimately, Gura prevailed. The court struck down the law, upholding for the first time the individual rights view of the Second Amendment. At the same time, the court acknowledged that the “right can and should be subject to some regulation in the interest of public safety.” Winkler approves of this compromise position, seeing it as having the “potential to restore some measure of reason to the gun debate.”
It probably won’t. The divisive gun issue remains alive and well in state legislatures, Congress, and the courts, with the political advantage on the pro-gun side.
Throughout this highly readable and always provocative book, Winkler casts himself as the reasonable arbitrator of argument, finding fault with both sides. He spends more time exploring and engaging the arguments of the “pro-gun diehards” sometimes critically, sometimes sympathetically– than he does the “extreme gun control zealots,” whom he charges with doing or saying “anything to eliminate guns.” Dismissive of those whose aim was “civilian disarmament” (an end now rendered impossible by the Heller decision, not to mention public opinion), he concludes that the vast number of guns in circulation and the unwillingness of gun owners to part with their weapons make any disarmament “an unrealistic goal.” But just as most gun owners are “law-abiding citizens” amenable to reasonable regulation, most gun control advocates are not unbending abolitionists determined to flout the Constitution. Their views get little airing in his pages.
A succinct and fascinating introduction to the legal and historical issues at the heart of the gun debate, “Gunfight” is bound to frustrate proponents and opponents of gun control. If a Supreme Court ruling cannot cool political tempers, it is unlikely that a book can.”