LAW JULY 6, 2011
by Adam Winkler
W. W. Norton & Company, 320 pp., $27.95
IN 2008, in District of Columbia v. Heller, the Supreme Court recognized an individual right to possess guns for personal protection under the Second Amendment of the Constitution. In an earlier opinion on the Second Amendment, a case decided in 1939, the Court had suggested that the Second Amendment protected only state militias by depriving the federal government of the power to disarm them, which meant that any ordinary gun control law would be constitutional. By contrast, the 2008 ruling struck down a District of Columbia law that banned possession of handguns and required people who lawfully owned firearms to keep them disassembled or locked up.
No one could have predicted such a ruling a few decades earlier. Legal scholars at that time did not pay much attention to the Second Amendment, and assumed that the 1939 ruling reflected a public consensus that embraced gun control. But the intervening years saw changes in both legal thought and politics. Historians and legal scholars came round to the view that the founders and other Americans in the late eighteenth century did recognize gun rights. Meanwhile, gun rights advocates, led by the National Rifle Association, made progress with public opinion. By the time the Supreme Court made its ruling in 2008, mainstream political leaders had endorsed gun rights, as had two lower courts.
Adam Winkler tells the story behind Heller in this wide-ranging historical narrative that touches on every imaginable source for the modern debate on gun control: founding-era understandings; gun control laws in the nineteenth and twentieth centuries; attitudes toward guns in Britain after the Glorious Revolution; the role of guns in the civil rights movement; empirical research on the effects of gun control; the wisdom of Solon. Winkler is a skilled writer in the genre of modern popular nonfiction. He tells an easily digestible, personality-heavy story with a propulsive narrative trajectory about the lawyers who prepared and argued the Heller case, while interrupting it at carefully measured intervals to feed us our vegetables in the form of historical and legal digressions on gun rights and gun control. Although the structure is formulaic, and the feisty-lawyers-taking-on-the-establishment theme is stale, Winkler writes entertainingly. The book is occasionally glib but never dull.
Winkler’s major point is that gun rights and gun control have always coexisted in the United States. Significant groups of Americans, at various times, regarded guns as important for personal protection or for hunting, or as a barricade against tyranny; and they saw extreme forms of gun control as violations of their rights. Yet Americans also enacted gun control laws in the colonial era, at the founding, in the antebellum South, in the Wild West, during the Prohibition Era, and after World War II. Even towns on the western frontier enacted ordinances that required visitors to hand over their guns to public officials for storage for the duration of their visits. The towns sought to create conditions of law and order to attract investment, not Hollywood-style spectacles involving shoot-outs.
In his zeal to debunk, Winkler sometimes goes too far and loses the thread of his argument. The murder rate of 1.5 per year in Dodge City in the 1870s and 1880s is, given its population of just over one thousand, six times the murder rate in New York City today and, not as he claims, evidence that the western frontier was a peaceful place. But the high crime rate explains the appeal of gun control in places Americans falsely associate with gun freedom. Winkler uses this history to cudgel the “extremists” (or “zealots”) on both sides—the gun rights advocates who believe that modest forms of gun control violate American traditions and the gun control advocates who believe that extreme forms of gun control do not. But the appeal to history takes one only so far. The legal arguments of the NRA and similar groups also relied on both modern conditions and on the original understanding of the Constitution.
This brings us to Heller. For many conservatives, the case vindicated two of their pet causes: originalism and gun rights. Originalism is the jurisprudential school that holds that courts should interpret the Constitution so as to conform to the understandings of the founding generation. Justice Scalia’s majority opinion and Justice Stevens’s dissent both focused on eighteenth-century historical sources and mostly disregarded post-ratification developments in popular opinion and social norms.
Yet many commentators—including Winkler—believe that Scalia’s originalist approach in Heller contained serious flaws. After a tedious historical exegesis, Scalia dispatches the D.C. law in a few sentences by noting that its confiscatory impact exceeded that of other gun control laws in American history, even some that were struck down by state courts, and then notes that the Court’s holding would not require the overturning of many conventional gun control laws—including limitations on possession by felons and the mentally ill, limitations on possession of guns in sensitive places like schools and government buildings, and restrictions on the commercial sale of guns. But he does not cite any historical support for the claim that modern gun control laws would have passed eighteenth century muster.
Indeed, if the founders believed that gun rights served to protect militias, then it is hard to see why machine guns—military weapons of the sort that militias cannot do without—would be excluded from the protection of the Second Amendment, as Scalia suggests in another part of the opinion. Nor does Scalia provide historical evidence that the founders believed that a ban on handguns would violate the right to bear arms. These holes in the opinion raised suspicions that Scalia chose a politically convenient outcome rather than a jurisprudentially sound one, and this is Winkler’s view. Heller throws a sop to libertarian conservatives and preserves a role for gun control favored by law-and-order conservatives, while rejecting the confiscatory agenda of liberals.
But Winkler supports the outcome in Heller, and offers a back-handed defense of the opinion as a kind of involuntary exercise of judicial statesmanship by a justice who rejects the notion that judges should be statesmen. In Winkler’s view, Heller cooled political temperatures and produced a sensible political compromise. The kind of confiscatory gun control long advocated by liberals—which would involve the seizure of more than 200 million weapons—is not realistic, politically or practically. But enough prominent figures supported it to fuel the NRA’s public-relations machine and stoke fear and anger among gun owners. By removing gun confiscation from the political agenda, Heller offered reassurance to gun owners while eliminating gun control laws that were ineffective and, outside a few cities, lacked political support. But Heller also preserved forms of gun control sanctioned by history, which could no longer be regarded as a step down the slippery slope to confiscation because of the new constitutional barrier around gun rights.
With the extremists on the left blocked, and extremists on the right soothed enough not to interfere with moderate gun control policies, the majority could set to work creating gun control policies that balance gun owners’ interests and the requirements of public safety. On this account, politics, not law, should determine the outcome of cases like Heller, albeit a kind of high-minded politics that seeks moderation and political peace. The Court plays a role similar to that of the ancient priests, who on solemn occasions inspected the entrails of birds before the public but then issued decrees based on more worldly considerations.
This theory might possibly be sound, but it is a little pat. Supreme Court justices, who usually lack political experience and are institutionally (and often gerontologically) detached from public life, do not possess the political skills or motivation to manipulate judicial outcomes in order to make political peace among warring extremists. Winkler does not say whether he thinks that Scalia consciously or unconsciously deviated from originalist purposes in order to achieve the politically happy result. If it was conscious, Scalia would be a truly devious man—a kind of judicial Straussian who has spent his career railing against just the type of politically sensitive decision-making that, if Winkler is right, he secretly engages in for the good of the nation. If it was unconscious, then surely it was a lucky coincidence that Scalia could read the public mood so well without giving any thought to doing so.
Finally, it is not clear that Heller will really calm the political waters. Since Heller preserved so many gun control laws, it isn’t clear why gun rights advocates would be appeased by the opinion. Heller announced gun rights but gave them little scope. This will become clearer as federal courts uphold gun control law after gun control law (as they have done). It must eventually dawn on gun rights advocates that a symbolic victory is only symbolic because it does not deliver the outcome that you want.
After all, modern gun rights advocates do not subscribe to Winkler’s Burkean conservatism, which holds that time sanctifies constitutional understandings. Although like other revolutionaries they invoke an imagined Eden (albeit one of unlimited weaponry), gun rights proponents resemble earlier advocates of rights for African-Americans, women, and gays and lesbians—advocates who sought to raze tradition, not preserve it. Heller should be regarded as a defeat for gun advocates in their quest for their Roe v. Wade—an uncompromising opinion that delivered a real, not symbolic, victory, one that (unlike Heller) eliminated dozens of laws and changed people’s lives.
Eric A. Posner is a professor at the University of Chicago Law School.