Gun Control/Anti-Gun Control

Gun control has become one of the most contentious public policy issues of the past thirty years. The advocates and opponents of gun control are among the loudest, most passionate participants in American politics. Interest groups on both sides have poured vast sums of money into national advertising and public education campaigns; lobbying; and direct contributions to political parties, members of Congress, and state legislators. Elections have been won or lost because of a candidate’s stance on this issue, including (some observers believe) the 2000 presidential election, when the Democratic nominee, Vice President Al Gore, failed to carry some traditionally Democratic states with a high percentage of gun owners.

Advocates of gun control believe that the possession and sale of firearms should be regulated by government, so as to ensure that (more) guns do not fall into the hands of criminals, the mentally ill, and children. Most advocates also believe that certain kinds of guns, such as assault weapons, should be prohibited altogether. Advocates say that their goal is the reduction of rampant gun violence in America through the regulation—not the abolition—of guns and that recreational hunters who use rifles are not their target.

Opponents of gun control believe that guns are used primarily by law-abiding citizens for self-protection, hunting, and sport. They also believe that government regulation of firearms constitutes a slippery and inevitable slope toward the ultimate abolition of guns. Opponents contend that the Second Amendment to the U.S. Constitution unmistakably protects the rights of individuals to own guns and to be free from unreasonable government regulation. Supporters of gun control argue that the Second Amendment is about militias and merely prohibits the national government from disarming the state militias. Opponents of gun regulation claim that ownership of a gun is a civil liberty like the right to free speech and can never be abridged; supporters of gun control argue that the amendment only secures the rights of the states to have what the amendment calls ‘‘a well regulated militia.’’

Today, approximately 35 to 40 percent of all U.S. households have at least one gun; on average, these households possess about three guns, accounting for an estimated 250 million firearms. Rifles and shotguns outnumber handguns by a ratio of two to one. These figures, upon which advocates and opponents of gun control generally agree, suggest how widespread gun ownership is, how difficult the abolition and confiscation of guns would actually be, and the potentially enormous impact of gun regulations.

The story of guns in early America is a more contested one. Americans have had a long-standing cultural image that guns were an integral part of living in the eighteenth and nineteenth centuries, at least until the advent of professional police forces. This image has been reinforced by movies and television, in particular the entertainment media’s depiction of the ‘‘Wild West.’’ Recent research by historians, political scientists, and legal scholars has called into question this image, suggesting that guns were not widely available, owned, or used to commit violent crimes. Historian Michael Bellesiles, who used a variety of empirical methods to study the prevalence of guns in pre-Civil War America, has called this image a ‘‘myth.’’ Other scholars, however, dispute the accuracy of this research, suggesting that it is part of a progun control lobby to downplay the routine nature of gun ownership and the positive contribution of guns to public order and self-protection in colonial and antebellum America.

Guns and Public Policy

Public opinion has helped propel the march toward increased regulation of guns by the federal government in the twentieth century. A substantial majority of Americans has supported stricter control of firearms, particularly handguns, for as long as opinion polling has taken place. Agreement breaks down, however, over specifics, including bans on assault rifles or the ballistic fingerprinting of guns. In particular, gun owners are much more likely than nonowners to oppose intrusive or controversial forms of regulation. The abolition of handguns, however, is rejected by a large majority of all Americans.

Key violent events on the national stage have helped to direct and intensify public opinion. Prohibition and the related gangster violence of the 1920s and early 1930s, typified by Al Capone’s massacre of rival mobsters on Valentine’s Day in Chicago in 1929, led to two major pieces of federal gun control legislation. A year after the Twenty-First Amendment repealed prohibition, The National Firearms Act of 1934 imposed a substantial tax on the manufacturers, importers, and dealers of sawed-off shotguns, silencers, and the like; this legislation also provided for the first firearms registration system—The National Firearms Registration and Transfer Record—still in place today. The Federal Firearms Act of 1938 established a licensing system for all types of firearms, by creating Federal Firearms Licensees (dealers) and criminalized the sale of guns to convicted felons.

The assassination of President John F. Kennedy in 1963 led to renewed calls for stricter gun control laws. But it was not until the assassinations of Senator Robert F. Kennedy and Dr. Martin Luther King, Jr. in 1968 that Congress finally passed legislation designed to (1) close some of the loopholes that allowed rifles and handguns to fall into the hands of assassins and (2) curb the growing level of violence, especially urban homicides. The Gun Control Act of 1968 was supported even by the National Rifle Association (NRA), the most powerful pro-gun lobby in the United States. It broadened the categories of people who were not eligible to purchase firearms, prohibited the mail-order sales of firearms, prohibited the interstate sale of firearms (a restriction later removed for rifles), and banned the importation of ‘‘Saturday night specials,’’ a handgun often used in street crimes.

The shootings of President Reagan and his press secretary, James Brady, in 1981 from John Hinckley’s handgun set in motion the most vigorous and sophisticated campaign to control handguns in the United States. Paralyzed by the shooting, Brady joined his wife, Sarah, in efforts to implement stricter controls on handguns. In 1989, Sarah Brady became chairperson of Handgun Control Inc. (HCI), the most influential interest and lobbying group in favor of gun control (by 2001, HCI changed its name to the Brady Campaign Against Handgun Violence). After years of battles involving HCI, NRA, and other groups, Congress passed the Brady Bill in 1993; President Clinton signed the bill, which had some bipartisan support, into law.

Hailed by supporters as one of the most significant pieces of gun control legislation ever enacted, the Brady law required a five-day waiting period and background checks on all handgun purchasers (the five-day waiting period was rescinded in 1998 when the FBI implemented a computerized national instant checking system). These provisions represented a major shift toward stricter gun controls in thirty-two states; the other states already had ‘‘Brady-like’’ laws in place. Shortly thereafter, Congress passed the Violent Crime Control and Law Enforcement Act of 1994, which banned the manufacture and sale of assault weapons; however, the ten-year term of this act expired in 2004 and was not renewed by Congress.

Guns and the Second Amendment

Is the ownership of guns one of our nation’s fundamental civil liberties? This question is hotly debated among scholars, activists, members of Congress and other policymakers, and even the public at large. The controversy largely focuses on the original meaning of the Second Amendment, which states: ‘‘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.’’

One viewpoint, usually referred to as the ‘‘collective’’ view of the Second Amendment, is that the right to own guns refers only to the context of a citizen’s participation in a state government-regulated militia, whose purpose was to protect the national defense in an era when people were wary of a too powerful federal government and standing armies. When serving in these citizen militias, men were expected to provide their own weapons of a type in common use at the time. Adherents to the collective view, such as political scientist Robert Spitzer, argue that there is no historical evidence to suggest that the right to bear arms extended beyond the militia context to private possession and use. Indeed, some early drafts or alternative versions of the Second Amendment, which specified a private right to own and use guns, were ultimately rejected. As citizen militias gave way to the professionalized national guards of the twentieth century, the militia justification for contemporary gun ownership seemed no longer relevant.

A quite opposite viewpoint, referred to as the ‘‘individual’’ view of the Second Amendment, is that this amendment was intended to guarantee the right of individuals to possess arms, not only for militia use but also for self-defense and protection from government tyranny. Adherents to this view remind us that the militia was a universal citizen militia, one that extended to all able-bodied men (at least those between the ages of sixteen and forty-five). In addition, legal scholars such as Robert Cottrol point to the English Bill of Rights of 1689, which provides that ‘‘the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law,’’ as the basis for our Second Amendment. Historian Joyce Lee Malcolm observes that in the nineteenth century the right to own guns in Britain was expanded to all religions, and British judicial opinions made clear that this right was an individual one that extended to self-protection.

In sum, supporters of the collective and individual perspectives on the Second Amendment disagree about several key issues, including the universality and meaning of militia service, the intentions of the framers of our Constitution, and the relevance of British laws and jurisprudence for interpreting the Second Amendment. They also disagree on the implications of the very few U.S. Supreme Court decisions that have addressed the right to bear arms and gun regulation within the framework of the Second Amendment.

In the Dred Scott case (Scott v. Sandford, 60 U.S. 393, 1857), Chief Justice Roger Taney listed the right ‘‘to keep and carry arms wherever they went’’ as one of the privileges of citizens and a compelling reason why blacks should not be considered citizens. Those who believe that the Second Amendment provides an individual right to own guns point to this decision for support. But given that Dred Scott was overturned by the passage of the Civil War amendments and has been discredited by virtually all constitutional scholars, the significance of Taney’s dicta about guns is in doubt.

In Presser v. Illinois, 116 U.S. 252, (1886), the Supreme Court upheld an Illinois state law that banned public parades of armed men, in this case the parade of German (and other) immigrant laborers protesting working conditions and seeking to mobilize a national labor movement. Advocates of the collective view of the Second Amendment cite Presser for support of the regulation of guns, as well as for the point that the Illinois National Guard constituted the only legitimate militia of the time. Advocates of the individual view of the Second Amendment cite Presser for the reiteration of the individual right to own guns. In fact, the Court’s opinion declares that ‘‘the states cannot . . . prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security.’’ Whether in these words the Presser Court is declaring the right to bear arms as an individual right or, instead, one reserved only for citizen militias in their performance of a public duty is disputed by scholars of the Second Amendment today.

The Supreme Court’s most definitive statement on the regulation of guns occurred in U.S. v. Miller, 307 U.S. 174, (1939). In Miller, two defendants were convicted of transporting a sawed-off shotgun across state lines, in violation of the National Firearms Act. The Supreme Court unanimously ruled that a sawed-off shotgun was subject to federal government regulation (including registration), noting that such a weapon bore no ‘‘reasonable relationship’’ to the preservation of militias or the common defense. It seems clear that the Supreme Court did not wish to tackle the larger, more controversial, and wholly hypothetical question of whether guns used by individual citizens for militia purposes were also subject to government regulation. Nevertheless, advocates of the individual view of the Second Amendment cite Miller for support, noting with approval the Court’s extensive discussion of state militias.

Finally, it is important to distinguish between views of the Second Amendment and support for, or opposition to, gun control. Virtually all opponents of gun control base their arguments on the Second Amendment, in particular their view that this amendment protects the right to bear arms and precludes most or all forms of government regulation. Supporters of gun control vary in their views of the Second Amendment. Those favoring the abolition of all firearms or handguns believe the amendment confers no individual right to own guns. Other gun control supporters are willing to acknowledge a constitutional right to own guns; however, they believe that the Second Amendment permits the regulation of guns, whether the constitutional test for regulation is ‘‘rational basis’’ or even the higher threshold ‘‘strict scrutiny’’ standard.

Gun Policy in Perspective

Debates about the desirability or constitutionality of gun control measures are not the only sources of disagreement between supporters and opponents. They also have different points of view about the efficacy of gun control legislation. Since the Brady law was enacted in 1993, more than one million applications for firearm transfers or permits were rejected by the FBI or state and local law enforcement agencies (Bureau of Justice statistics). Although comprising only about 2 percent of all applications, these rejections reflect a large number of instances in which convicted felons and other ineligible classes of individuals were unable to purchase a gun. How often did these background checks prevent crimes or reduce the violence associated with crimes? We cannot know for sure, but we do know that (1) the violent crime rate has declined since 1993, and (2) the number of crimes committed with a gun has also sharply declined—by about 50 percent—in that same time period (Bureau of Justice statistics).

Supporters of gun control point enthusiastically to these data for evidence of success; opponents of gun control argue that the national crime rate was declining for other reasons (such as demographic changes) and that the impact of the Brady law has been minimal. Researchers who have studied this issue empirically are often skeptical of the more grandiose claims of success for the Brady law. Legal scholar James Jacobs, for example, points out that guns are still widely available to the criminal class through illegal transfers of registered guns from friends and accomplices as well as still unregulated gun shows.

Finally, there are new laws at the state and federal level that gun owners and manufacturers support with enthusiasm. Thirty-seven states now have right-tocarry (shall issue) laws, which give all adults with no criminal record the right to possess and carry a concealed weapon. At the federal level, Congress recently passed, again with bipartisan support, the Protection of Lawful Commerce in Arms Act, designed to prohibit civil liability actions against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages resulting from the misuse of their products. Hoping to curb ‘‘abusive’’ lawsuits by the Brady campaign and other gun control organizations, President Bush signed the bill into law on October 26, 2005. For now and the foreseeable future, guns will continue to be a contested but integral part of American life.

JOHN PAUL RYAN

References and Further Reading

• Bellesiles, Michael A. Arming America: The Origins of a National Gun Culture. New York: Knopf, 2000.
• Bogus, Carl, ed. The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New York: The New Press, 2000.
• Cottrol, Robert J., ed. Gun Control and the Constitution: Sources and Explorations on the Second Amendment. New York: Garland, 1994.
• Gun Laws and Policies: A Dialogue, Focus on Law Studies XVIII(2) (Spring 2003).
• Jacobs, James B. Can Gun Control Work? New York: Oxford University Press, 2002.
• Malcolm, Joyce Lee. To Keep and Bear Arms: The Origins of an Anglo-American Right. Cambridge, MA: Harvard University Press, 1996.
• Spitzer, Robert J. The Right to Bear Arms. Santa Barbara, Calif.: ABC–CLIO, 2001.
• U.S. Department of Justice: Bureau of Justice Statistics— Office of Justice Programs. ‘‘Firearms and Crime Statistics.’’ www.ojp.usdoj.gov/bjs/guns.htm. Accessed November 9, 2005.

Cases and Statutes Cited

• Presser v. Illinois, 116 U.S. 252 (1886)
• Scott v. Sandford (Dred Scott case), 60 U.S. 393 (1857)
• U.S. v. Miller, 307 U.S. 174 (1939)