Social scientists produced studies claiming to establish that the availability of guns caused crime or suicide, and activists argued the Second Amendment protected only the states’ rights to have militias, waged a cultural war to marginalize gun owners as uncouth, retrograde Neanderthals out of step with the march of civilization, and achieved the passage of significant gun control legislation in the form of the Brady Act and the Assault Weapons Ban.

Battle For The 2nd

By the early 1970s, it had become established tenets among many scholars, politicians and members of the media the Second Amendment protected the right of a state to have a militia, and not a right of individuals to own firearms, and states could regulate private firearms’ ownership in any manner they saw fit. Gun control groups mounted campaigns to prohibit handgun ownership. Today, the overwhelming weight of scholarship from reputable constitutional scholars and historical research refutes any such claims beyond doubt. There is no credible argument the Second Amendment was not intended to protect the right of individuals to own and bear firearms, no reputable scholar argues the “states’ rights” interpretation, nor is it heard any more from media pundits.

While few people realize it, the man most responsible for this turnaround in legal scholarship and for the renewed respect that the Second Amendment now enjoys is a constitutional scholar and criminologist named Don B. Kates. His 1984 article in the Michigan Law Review, “Handgun Prohibition and the Original Meaning of the Second Amendment,” is undoubtedly the single most important work in this field.

Well-researched, well-written, rigorously argued, Mr. Kates not only completely refuted the “states rights” interpretation of the Second Amendment with arguments from the plain meaning and structure of the Bill of Rights and Constitution, but showed that statements made by the Founding Fathers, Supreme Court Chief Justice Story and other respected public figures who lived during the early days of the United States, and the republican political theory that guided the Founders in writing the Constitution, were consistent only with the individual rights interpretation.

Mr. Kates’ article spawned many more law review articles and investigations — pro and con — but the main debate was largely ended with the 1990 publication in the Yale Law Review of an article titled, “The Embarrasing Second Amendment,” by the highly regarded, and liberal, constitutional scholar, Sanford Levinson. There, Mr. Levinson conceded the blind spot that liberals had for the Second Amendment and their misunderstanding of its real meaning and history.

At least two significant histories were produced during this period that also provided unequivocal documentation that the amendment protected an individual right to own firearms: Stephen Halbrook’s, That Every Man be Armed — The Evolution of a Constitutional Right, and Joyce Lee Malcolm’s To Keep and Bear Arms — The Origins of an Anglo-American Right,” published by Harvard University Press.

The Social Science Battle

A handful of social scientists conducted rigorous research that debunked gun control ideas. The earliest and most important work in this vein was Armed and Considered Dangerous: A Survey of Felons and Their Firearms, by Peter Rossi and James Wright (1986). The authors, who admittedly began their study believing their results would make a case for gun control, reversed their opinions when their research clearly rebutted many of gun control’s basic tenets. They found (1) no evidence the Gun Control Act of 1968 or any of America’s other gun control laws produced any reduction in crime, (2) that criminals in states with higher percentages of gun ownership worried most about armed victims, (3) that criminals did not prefer small, junk “Saturday night specials,” but full-size, well-made guns, and (4) that gun owners were not a sub-group of violence-prone nuts but just as psychologically stable and moral as the rest of the population.

In the 1990s criminologist Gary Kleck pioneered research establishing that firearms were used far more defensively to save and protect lives than to kill, and John Lott, conducting what is undoubtedly the largest, most rigorously conducted study on gun control in history, showed that concealed carry laws were responsible for reducing murder and rape in the states that enacted those laws, showed that the Brady Act was not responsible for any reduction in crime, that murder sprees like Columbine were more likely to occur in states that had strict gun control laws, that there was no evidence that assault weapons increased violent crime and, in general, that the more guns in the hands of citizens, the less crime there was. This theme is the title of his justly famous book, More Guns, Less Crime: Understanding Crime and Gun Control Laws (2000).

Gun Control Legislation

The high water mark of gun control legislation was passage in the 1990s of the Brady Act (which provides for federal background checks as a condition to purchasing handguns) and the assault weapon ban. The latter had a 10 year sunset provision and expired in 2005 without being renewed. That leaves Brady, but Brady is significant. Gun control advocates worked hard for Brady because Brady is more than background checks. Brady creates a prior restraint on the right to own a firearm. It establishes the principle that the government has the right to make sure you meet its criteria before you can own a firearm. It therefore provides a platform for prohibition. By expanding the number of disqualifying criteria, Congress can limit the future purchase and ownership of firearms. It can also be readily adapted to prevent any sales during times of social or political unrest. Brady’s existence is a violation of the Second Amendment, and remains a threat to gun rights.

The major legislative gun rights victory in this period is clearly the passage of “shall issue” concealed carry laws in 35 states since Florida first enacted such a law in the 1980s. These laws provide that residents who meet specified criteria must be granted a permit to carry a concealed handgun. The fact that crime has decreased in states that have passed such laws and, with very few exceptions, citizens with permits have acted responsibly, has shown much of gun-control advocates’ arguments opposing these laws have been founded on little more than appeals to fear and hysteria.

Where We Are

Social science has largely discredited the common sense belief that gun control is crime control. So much so, that even Michael Moore, in Bowling for Columbine, concedes it is not guns that cause crime. Unfortunately, however, the scholarship and social science cannot eliminate the emotional appeal of gun control — simplistic, and not to be underestimated.

When and if the Supreme Court ever accepts a case for decision on Second Amendment grounds, it will be very difficult for the Court to adopt a ruling inconsistent with the reputable legal, historical and criminological scholarship produced in support of the right to keep and bear arms since the 1980s. Unfortunately, as long as the Court refuses to hear any case on Second Amendment grounds, the practical effect will be that the Second Amendment has no operative legal significance. By pretending the Second Amendment does not exist, the Court can essentially ensure that it does not exist.

For now, the gun control movement has been effectively stopped. It finds very little traction with the members of Congress or presidential candidates, most of whom cannot afford to risk losing votes to the issue. However, despite the legislative advances in concealed carry, despite the fact the gun control movement finds little support, these signs of progress may well be illusory. Complacency is ill-advised, for the following reason: it is not rights, or the state of the law, that determine our liberty, but our character and actions.

The most significant recent development in gun control is not a development but an event that shows us who we are, or what we are becoming. When Katrina destroyed much of New Orleans, law enforcement officers went door to door in some areas confiscating guns from citizens who had done nothing illegal. The guns were handed over.

What good are rights and laws, if at the first sign of real trouble, the authorities will just take the guns anyway, and we will just hand them over? Events in New Orleans reveal two things, neither of which bode well for the future: the authorities view us essentially as a herd to be controlled and ordered around; many Americans accept they are essentially passive, compliant creatures, have little use for liberty and self-determination, and will do what they are told.

If this is who we are, the Court can declare all gun control laws null and void tomorrow. It will make no difference, because in spirit we have become a subject people. Reversing that trend cannot be accomplished by lobbying Congress, voting for pro-gun candidates or putting pro-Second Amendment justices on the Court.