New book - Gunfight: The Battle Over the Right to Bear Arms in America

[TailGator]

The author of the book Gunfight: The Battle Over the Right to Bear Arms in America was interviewed on NPR this morning a little after 6 AM. He says he tried not to take sides, but rather to take an historian's approach to documentation. He may have accomplished that, judging by the interview, because he acknowledged facts on both sides of the argument, such as the disassociation between gun availability and violent crime in other countries and the lack of effectiveness of draconian restrictions on gun ownership and use in DC, and some historical elements like the gun bans of some towns in the old west. Regarding the Second Amendment, he said that it had too many commas and extraneous words to be clear, but that his opinion is that it guarantees an individual right to bear arms. He is a law professor, so (according to the interview) he deals at some length with the legal cases that have touched on 2A rights, up to and including Heller.

Overall, the interview was good enough and interesting enough for me to put the book on my Christmas list. Since the hour of the interview was so early (I was returning from my veterinary clinic after completing some time-critical treatments on a critically ill patient, or I wouldn't have heard it) I thought perhaps some of the TFL crew might be interested.

 

[Tom Servo]

The Atlantic posted an excerpt from the book a couple of months back, and it'll give folks a good idea whether or not they want to read the book.

Me? I'm skeptical, but from what I've read, Winkler appears to be taking a somewhat balanced approach.

 

[Standing Wolf]

Regarding the Second Amendment, he said that it had too many commas and extraneous words to be clear...

Too many long words and excruciatingly difficult commas for the professor? Maybe he should put in a few years flipping hamburgers: he might discover his reading ability suddenly improves.

 

[MLeake]

Standing Wolf, you know quite well he's alluding to the well-regulated militia phrase, which has caused us so much trouble since (I believe) 1934 or so.

 

[Southern Rebel]

I've known many, many professors in my lifetime (Almost accepted a position myself, but fortunately recovered my sanity in time!). The ability to create complexity out of mere simplicity sometimes justifies their existence. There are, however, a few of them that balance the scales and equally complicate both sides of an argument.

How anyone, with a basic understanding of the time frame and issues of the American Revolution, can read the second amendment and argue against individual gun ownership is beyond my comprehension. If they want to argue that times were different back then, and that the second amendment is not relevant to modern society, I can understand their argument. That is why we have the process whereby the constitution can be amended. I see no provision that allows politicians to merely declare that certain potions of the constitution are no longer relevant and, therefore, no longer binding upon the legal system.

 

[MLeake]

Southern Rebel, I'm on your side as far as understanding of the founders' thoughts in the 1780's goes.

The reason I said 1934 is that I didn't think the "well-regulated militia" argument had really gained any traction until the FDR administration, and the NFA act.

But since then, it has definitely been a factor. We don't have to like it, but pretending it hasn't been a bone of contention is playing ostrich.

 

[Southern Rebel]

Yep, MLeake, that short little phrase has certainly been used, mis-used, and abused! You are right - whether we like it or not, it has been a useful tool for the gun control groups and they aren't going to abandon the mis-use of it.

 

[Kreyzhorse]

"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."

Regarding the Second Amendment, he said that it had too many commas and extraneous words to be clear...

I actually read an article, and I don't recall where, in that the author was explaining that the comma after "of a free State, the right..." was actually meant to be "and". Thus the Second Amendment would read:

"A well regulated Militia, being necessary to the security of a free State and the right of the people to keep and bear Arms, shall not be infringed."

Not sure how much merit that arguement has, but it certainly changes how the Second Amendment reads.

Let's not get into that pesky "well regulated Militia" as it stands now, however in the case above, it clearly outlines both a Milita and indivdual right.

 

[Johannes_Paulsen]

I actually read an article, and I don't recall where, in that the author was explaining that the comma after "of a free State, the right..." was actually meant to be "and". Thus the Second Amendment would read:

"A well regulated Militia, being necessary to the security of a free State and the right of the people to keep and bear Arms, shall not be infringed."

Not sure how much merit that arguement has, but it certainly changes how the Second Amendment reads.

Let's not get into that pesky "well regulated Militia" as it stands now, however in the case above, it clearly outlines both a Milita and indivdual right.

From a statutory interpretation perspective, that argument makes things worse. Basically, the way I read it, the lead-in is a dependent clause: "A well regulated militia, being necessary to the security of a free state". Delete that dependent clause, and the rest of the sentence could stand on its own as a sentence (which is helpful to the RKBA argument "[T]he right of the people to keep and bear arms, shall not be infringed."

Under the way you're suggesting, the dependent clause appears to be contained by the commas: "being necessary to the security of a free state and the right of the people to keep and bear arms." Delete that, and what are you left with?

"A well-regulated militia shall not be infringed."

To the extent it makes sense (how do you "infringe" a militia?) it doesn't sound helpful to the RKBA cause, since it makes "well-regulated militia" the subject of the sentence, not "right of the people to keep and bear arms".

 

[Johannes_Paulsen]

The Atlantic posted an excerpt from the book a couple of months back, and it'll give folks a good idea whether or not they want to read the book.

Me? I'm skeptical, but from what I've read, Winkler appears to be taking a somewhat balanced approach.

Tom, thanks for posting this. I am going to buy this book. Just the excerpt posted on The Atlantic's website was already pretty eye-opening:

Republicans in California eagerly supported increased gun control. Governor Reagan told reporters that afternoon that he saw “no reason why on the street today a citizen should be carrying loaded weapons.” He called guns a “ridiculous way to solve problems that have to be solved among people of good will.” In a later press conference, Reagan said he didn’t “know of any sportsman who leaves his home with a gun to go out into the field to hunt or for target shooting who carries that gun loaded.” The Mulford Act, he said, “would work no hardship on the honest citizen.”

 

[Glenn E. Meyer]

Since the interpretation has been controversial for so many years - perhaps scholarship is called for.

That you think it is clear doesn't make it so. If Heller went the other way - then was it so clear? Only one vote!!

 

[Standing Wolf]

Standing Wolf, you know quite well he's alluding to the well-regulated militia phrase, which has caused us so much trouble since (I believe) 1934 or so.

People who go looking for trouble can find it anywhere. The well regulated militia phrase isn't a problem, never has been, nor ever will be. Some people pretend it is.

 

[MLeake]

Yeah, we're pretending that various state and federal courts have used that phrasing to justify their decisions that validated various and sundry gun control legislation.

We're pretending that tactics used by the anti's could continue to be used by the anti's.

Or perhaps the one pretending is the one who thinks that, because we won the last couple rounds, the problem isn't real.

 

[Webleymkv]

The best explanation of the "Well Regulated Militia" clause that I've seen was that given by Justice Scalia in the Heller opinion. In the nutshell, he said that the Second Amendment could be read as "Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed" without changing the meaning.

 

[Johannes_Paulsen]

@Glenn - I'm not saying that people can't come up with a different interpretations on the meaning and implications of the amendment. Obviously they can and will continue to do so. And the very existence of the 'militia' reference ultimately might serve to weaken the right. I'm just pointing out that the sentence becomes literally incoherent if it's read the way that Kreyzhorse's book suggested!

 

[BlueTrain]

I personally would not use as an argument any claim to knowing what anyone was thinking over 200 years ago, nor what that person might have thought 20 years later, after it was too late. For instance, I have no idea if they were including women or not under the 2nd Admendment.

 

[MLeake]

BlueTrain, claims to what people were thinking tend to come from perusal of the things they wrote or stated at the time, not magic....

There were enough comments by enough founders about the necessity of firearms in the hands of private citizens to protect against potential tyranny that it isn't much of a reach.

It's also not a reach to say that in context, the framers were a bunch of private citizens who'd collectively just used firearms to overthrow an oppressive government, and replace it with our modern form (or at least its predecessor).

 

[BlueTrain]

The founding fathers weren't "just a bunch of private citizens." Those who wrote the constitution were a "bunch of elected officials." And somehow, I don't think they thought that they were giving citizens the power to overthrow the government they were busy creating. They put that in because they didn't trust standing armies (and why don't we talk about that part?). They wanted a citizen's army, which they called a militia and which was used by the first administration under the new government. And what was it used for: to put down a rebellion.

 

[MLeake]

Elected for the Constitutional Convention, yes.

Elected at the time the revolution kicked off, not necessarily.

Aristocrats with guaranteed powers? No.

So, in many cases, private (if influential) citizens.

 

[BlueTrain]

Elected by the time of the revolution: absolutely. Congress met for the first time in 1774. Aristrocrats: generally speaking, yes, though hardly with absolute power. The British king did not have absolute power either, for that matter, which is beside the point.