The Great Gun Debate
he fury of the contemporary debate over gun rights and regulations in America places the U.S. in an anomalous position in two important respects. First, no other Western democratic nation has such widespread civilian gun ownership (roughly 300 million guns are owned by about 80 million Americans). Second, in no other nation is there such a furious political debate over modest policy changes. Witness the Senate’s failure in April to approve universal background checks for gun purchases—a measure that 90% of Americans support. This was not gun confiscation, nor an abridgement of any rights; it simply sought to make sure that criminals and those considered mentally incompetent could not get guns through well-known loopholes in existing law.
While the gun-rights community argues vociferously, if contradictorily, that such measures would either have no effect or would sharply curtail gun rights, the core of their zeal lies partly in the present, but also much in the past. Gun control, they argue, is incompatible with the nation’s founding principles, values and documents—most importantly, the Second Amendment’s “right to bear arms.” Leaving aside the obvious fact that America of the 1700s was a small, agrarian, pre-industrial nation, much of what the gun-rights community says about our history—and much of what most Americans think about that history—is wrong. And the political drama that has unfolded in the months since the Dec. 14, 2012, senseless killing of 20 grade-school children and six adults at a Connecticut elementary school follows a predictable political script nearly a century old.
Where Were the Guns?
Gun-rights enthusiasts are certainly correct when they note that gun possession in America extends to its earliest settlements in the 17th century, when guns brought from Europe were used for hunting and protection. Yet in the Colonial and early federal periods, guns were certainly less common than most think, and were seldom associated with interpersonal violence. Most significant gun-related violence occurred between Native Americans and European settlers, and as a primary tool of war. In early conflicts, including the Revolutionary War, limited gun availability among the general population proved to be a severe and protracted problem, as American military leaders, including Continental Army Gen. George Washington, regularly complained that service-eligible males lacked not only working firearms, but also basic knowledge of their use and maintenance. These complaints by American military leaders persisted up to the Civil War in the 1860s.
The relative scarcity of guns in early America is attributable to several factors. Guns were expensive; blacksmiths made them mostly by hand (the first gun factory in America did not begin operation until 1790) and might perhaps turn out a few dozen weapons in a year. Guns were made of iron, which would rust quickly without regular maintenance. They required parts and materials, like gunpowder, that were often difficult to obtain and deteriorated rapidly. They were heavy, cumbersome and dangerous to operate, requiring the user to have considerable skill. In those days, a well-maintained firearm, used periodically, might only last a few years. And while some people in the Colonial era hunted regularly for food and pelts, most were subsistence farmers who relied on agricultural produce and domesticated livestock for food. Guns were costly to import from Europe, and around the time of the Revolution, the British blockade made them even more difficult to obtain.
Gun ownership became more widespread in America around the time of the Civil War, when millions of men became acquainted with the use of firearms during military service and technological improvements in gun manufacturing and standardization of ammunition made guns safer and easier to operate, more reliable, more prolific and less expensive. As early as the 1850s, gun manufacturer Samuel Colt aggressively marketed revolvers to the public. Through extensive advertising campaigns, he linked his guns with romanticized and idealized visions of the American West. Colt’s innovations in the machine production of revolvers allowed a high-quality product to be manufactured in large numbers. By the end of the 19th century, the glut of handguns in America spawned by Colt and his competitors began to prompt calls for government action to stem the rising tide of gun violence found mostly in Eastern cities rather than in the American Western frontier.
Early Gun Grabbers
If guns are as old as America, so are gun laws. From the Colonial era through the 19th century, firearm possession was regulated in three primary ways. One type of regulation required eligible males to own guns as part of their militia-service obligation, as militias provided the primary means for collective local defense. The lack of firearms among the general population continued to be a primary concern to leaders during and after the American Revolution. In 1792, Congress passed the Militia Act, which required each militia-eligible man to own a musket or firelock, a bayonet and belt, spare flints, a pouch containing at least 24 cartridges along with the necessary quantity of powder and ball, and other accouterments. Within the next two years, all 15 states passed similar measures but lacked enforcement power, and these laws were widely ignored. States also reserved the right to take or “impress” guns, even if privately owned, if they were needed for defense and to direct that guns be kept in a central location for rapid accessibility.
A second type of early gun-control law barred various groups from gun ownership, including slaves, indentured servants, Native Americans, vagrants, criminals, Catholics or other non-Protestants, non-property-owning whites, those who violated hunting laws, and those who refused to swear oaths of loyalty to the government. Laws barring distribution of guns to Native Americans were among the first such measures. As early as the 1600s, people who were discovered selling or giving guns to Indians could be subject to death. Pennsylvania passed measures in 1776 and 1777 specifying that those who refused to swear an oath of allegiance to the government would be disarmed. Historian Saul Cornell says these laws disarmed up to 40% of the state’s adult white male population. Government concern with the nation’s ability to organize reliable military forces through its militias prompted it to conduct periodic gun censuses before and after the adoption of the Constitution in 1787. In 1803, for example, Secretary of War Henry Dearborn coordinated the most extensive and thorough gun census ever conducted until that time, concluding that about 45% of all militiamen (men between the ages of 18 and 45) had arms (including non-functioning weapons), or about a quarter of the white male adult population. A similar census seven years later produced similar results. (One can scarcely imagine the outcry today if government representatives canvassed households to determine gun ownership!)
A third type of gun law incorporated measures regulating or restricting gun use very much the way guns are regulated today. For example, North Carolina enacted a law in 1778 criminalizing hunting in the woods at night by firelight because, as the law noted, those who hunted at night would “kill Horses and Cattle, To the Prejudice of the Owners thereof.” (Nighttime hunting, including by artificial light, is typically barred in modern America.) Anyone who was caught was impressed into military service for three years. Tennessee enacted a law in 1821 that prohibited the carrying of certain named dangerous weapons, including pistols. (Similar carry restrictions were enacted in most states.) Those convicted were required to pay a fine. In 1837, Georgia enacted a law making it a crime to sell or possess certain named dangerous weapons, including pistols. Those convicted paid a heavy monetary fine. Several counties in Virginia passed ordinances making it a crime to hunt wild fowl with a gun while on a skiff (a shallow boat). The penalty for violation was that the defendant’s gun was seized and sold, with half the proceeds given to the government and the other half to the person who reported the crime. Aside from militia weapons, the carrying of firearms outside the home, whether concealed or openly, was normally subject to tight legal restriction, if not prohibited, as was the discharge of firearms in populated areas or at night.
The Not-So-Wild West
In the 19th century, westward expansion was accompanied by the enactment of various gun regulations, which undercut the wildly exaggerated stories about the use of guns in the American West. While the West did witness gun violence, its extent and pervasiveness has been greatly overstated, beginning when contemporary newspaper reporters and authors of pulp fiction dramatized, glorified and invented stories of numerous wild shootouts.
The settling and taming of the frontier West was primarily attributable to the advance of homesteaders, ranchers, miners, tradesmen, businessmen and others who populated the region, worked the land, drove away Native Americans and established towns and cities. Gun-slinging cowboys carrying six-shooters and rifles played a relatively minor role in this process. As many historians of the West have noted, far more people died in shootouts in movies than ever died in the real-life West. For example, during the height of lawlessness in the legendary Kansas cattle town of Dodge City from 1876 to1885, only 15 people died a violent death—an average of 1.5 deaths per year. In Deadwood, South Dakota, four people were killed in its most violent year. In Tombstone, Arizona, home of the celebrated gunfight at OK Corral, five people were killed in its most violent year. From 1870 to 1885, there were a total of 45 killings reported in the cowboy towns of Abilene and Caldwell in Texas, and Dodge City, Ellsworth and Wichita in Kansas; six of those slayings were from six-shooter handguns and 16 were by police.
Even in the most violence-prone Western cattle towns, vigilantism and lawlessness were only briefly tolerated. Laws that banned carrying guns within city or town limits were immediately enacted and strictly enforced. People who had guns were required to check them in at a designated location, such as the town hall or sheriff’s office, and the person would receive a metal token for identification and reclaiming purposes. As a consequence, there were few homicides even during the heyday of gun violence in the 1870s; most of those deaths resulted from drunkenness and disputes over gambling. Ironically, citizen gun ownership after the Civil War rose mostly in Eastern cities, not in the Wild West.
The gun disarmament routinely practiced in newly formed Western towns was well understood to be a sign of civilization and an improvement in public safety, especially as local civic leaders and businesspeople realized that fear of violence and disorder drove away settlers and customers. Ironically, the typical Old West town had stricter gun laws than some 21st-century American states. To date, four states have eliminated all restrictions for those wishing to carry concealed handguns in public.
What About the Right to Bear Arms?
Despite all the talk about Second Amendment rights that pervades the national gun debate, the legal definition and parameters of the “right to bear arms” as a right of individuals to own guns for their own purposes is of recent vintage. From the time of its writing in 1789 through the end of the 20th century, the Second Amendment was interpreted as protecting a right to bear arms only in connection with what the first half of the sentence proclaimed: “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.” That is, it protected civilian gun ownership only in connection with citizen service in a government-organized and regulated militia. This militia-based understanding was confirmed by the Supreme Court and in nearly 50 lower federal court cases handed down from the 1940s through the beginning of this century.
Responding in part to a rising tide of writing in support of a personal or “individualist” view of the Second Amendment buttressed substantially by gun-rights groups, and because of a more conservative court sympathetic to this viewpoint as embraced by the George W. Bush administration, the Supreme Court reversed course on the Second Amendment in 2008 in the case of D.C. v. Heller. The court majority set two firsts: For the first time in history, a federal court overturned a gun regulation as a violation of the Second Amendment, and for the first time, it adopted the individualist interpretation of the amendment, reversing course on its prior militia-based interpretation and establishing a right of civilians to possess handguns in the home for personal self-defense. Two years later, the high court applied this ruling to the states.
Yet in both cases, the court was careful to limit this right. As Justice Antonin Scalia noted in his majority opinion, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” In addition to lending support for longstanding gun regulations, the court also suggested that certain types of especially powerful weapons might also be subject to regulation, and that laws regarding the safe storage of firearms would also be allowable. (Four of the nine justices filed a strenuous dissent, arguing that the Second Amendment established only a militia-based right.)
The Arc of Gun-Policy Change
Modern gun laws date back about a century. Generally speaking, two types of events spurred periodic calls for tougher gun laws: the spread and fear of gun-related crime, and the assassinations of political leaders and celebrities. Despite enduring popular support for tougher laws, federal gun regulations have been infrequent and limited in scope.
The rise of gun-fueled gangsterism in the 1920s and early 1930s and the election of Franklin D. Roosevelt as president in 1932 (who faced an unsuccessful assassination attempt in 1933 that resulted in the shooting death of Chicago Mayor Anton Cermak) boosted the prospects for national gun laws. The first significant measure was the National Firearms Act of 1934, which strictly regulated gangster-type weapons, including sawed-off shotguns and machine guns.
In the mid-1960s, escalating crime rates and the spread of urban disorder raised new fears about spiraling gun violence. Such fears peaked in 1968 with urban rioting and the assassination of civil rights leader Martin Luther King, Jr. and Senator Robert F. Kennedy. Those two murders provided the final impetus for passage of the Gun Control Act, which imposed a series of restrictions pertaining to gun sales by mail, record-keeping regulations and tougher gun penalties.
Highly publicized mass shootings in the late 1980s and early 1990s resulted in a successful effort to enact gun laws including the Brady Law in 1993, which required background checks on handgun purchasers to weed out felons and the mentally incompetent. Since1994, the National Instant Criminal Background Check System (NICS) has blocked nearly 2 million gun sales.
In 1994, Congress enacted a ban on 19 types of assault weapons, plus several dozen copycat models, which were distinguished from other semi-automatic weapons by virtue of their distinctive military features, including a more compact design, short barrels, the ability to receive large ammunition clips, lighter weight, pistol grips or thumbhole stocks, flash suppressors, or telescoping stocks (traits that facilitate concealability and spray fire). According to government studies, although assault weapons constituted only about 2% to 3% of all guns in America, they accounted for 6% to 8% of gun crimes. Studies of selected areas around the country found that the use of assault weapons in crimes declined during the ban. Yet they have also been weapons of choice for mass shooters and drug gangs, and those who have killed police officers. Despite periodic efforts, Congress has failed to renew the law since it lapsed in 2004.
The Frozen Contemporary Gun Debate
The government’s seeming inability, or unwillingness, to enact tougher gun laws in recent years, despite popular support for such measures, reflects two political vectors. The first is many Democrats’ belief that support for stronger gun laws resulted in their loss of control of Congress in the 1994 midterm elections, and Al Gore’s loss of the presidency to George W. Bush in 2000. Although a recent study by the The American Prospect’s Paul Waldman debunked these beliefs, this view nevertheless held great sway with many gun-control supporters, prompting them to sidestep the issue. The decision to avoid the gun issue extended through Barack Obama’s first term.
The second factor that boosted the political fortunes of the gun-rights community was the election of George W. Bush to the presidency in 2000, which marked the ascension of the most gun-friendly president in modern history. During his administration, access to federal gun-purchase records, even by law enforcement officials, was sharply restricted. Bush’s Justice Department embraced the individualist view of the right to bear arms, in the process overturning existing government legal policy dating back more than 50 years. In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act, which extended unique protections to gun manufacturers and dealers largely by barring civil suits against them.
Given this context, recently energized efforts by gun-control supporters to push for new laws has faced continued skepticism from some Democrats expecting difficult re-election races in conservative states in 2014, and ever-more intransigent and hyper-partisan Republicans in Congress who have fought every initiative supported by the White House tooth and nail. Change is not impossible, given the entrance of well-funded groups that pledge to continue the cause for stricter gun laws. But they have much political inertia to overcome.
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