Title: Message
I thought list members might be interested
in the State Department-distributed publication I mention below, and in some
of my reactions.
Eugene
- "In many states regulations continued [following the Revolution]
prohibiting . . . propertyless whites from owning guns." I have seen this
claim in several places, all of them in the work of Michael Bellesiles. None
of those places gave any citations for statutes that actually banned
propertyless whites from owning guns. I tried hard to find any evidence of
such statutes -- none, to my knowledge, exists. To my knowledge, there were
no such "regulations," in any states, much less many states. (Incidentally,
it may well be that the author reasonably relied on Bellesiles' work before
it was debunked, as did
I; but since the publication is on the Web, one would think
that it would be updated to correct the errors that reliance on Bellesiles'
work has yielded.)
- "Even at the time of the amendment's adoption, state laws limited gun
ownership to only certain 'people,' namely those between 18 and 45 able to
serve in the military." I have never seen any evidence of such a thing. I'm
unaware of any state laws that banned people over 45 from owning guns, or
that banned women (who weren't able to serve in the military) from owning
guns, or that banned the non-able-bodied from owning guns.
- "One scholarly study holds that less than 14 percent of the adult white
male population, those otherwise eligible to own guns, actually possessed
firearms in 1790." That much is accurate -- but that one scholarly study,
unless I'm woefully mistaken, is Michael Bellesiles' now-debunked work. I
know of no credible source for such a statistic.
- "In 1960, a law professor, Stuart Hays, first suggested that private
ownership of guns was a privilege protected by the Second Amendment, and
that prior court decisions tying it only to the militia had been mistaken."
Actually, the notion that the private ownership of guns was protected by the
Second Amendment was widely recognized by a vast range of sources throughout
the 1800s. See David B. Kopel, The
Second Amendment in the Nineteenth Century.
- "In United States v. Cruikshank (1876), the Court laid down two
principles: first, the Second Amendment poses no obstacle to the regulation
of firearms; and, second, it applies only to federal power, not to the
states. In other words, whatever limits the Second Amendment may pose on gun
regulation, these do not apply to the states, which would seem to have
unlimited power to regulate firearms." Cruikshank does say that the
Second Amendment applies only to the federal government, but it nowhere says
that the Second Amendment poses no obstacle to the regulation of
firearms.
- "Self-defense: Historically, so the argument goes, Americans have
defended themselves, and, on the frontier, guns were essential to warding
off attacks by Indians, rustlers, and other predators, both human and
animal. In modern society, people ought to be able to protect themselves
against robbery, rape, assault, and burglary. Crime is as much a fact of
modern urban life as were the dangers confronting the generations that tamed
the frontier. The right to self-defense is part of the natural right of
life, liberty, and happiness announced in the Declaration of Independence.
Gun ownership is the means by which one can protect that natural
right.
"Here the issue is not really
the Second Amendment, since English and American law have long recognized
that every individual has the right to protect himself or herself against
bodily harm or theft of property. If one uses a gun to shoot an attacker,
the killing will be excused not as a constitutional right, but as a matter
of criminal law. The Second Amendment was never intended to augment or
diminish this traditional right, and advocates of gun control have never
argued that they want to deny individuals the ability to protect themselves
against criminals."
Well, first, if one
uses a gun to shoot an attacker, and guns are banned, the killing might be
excused -- but the person who is defending himself may still be prosecuted
for the illegal gun ownership (which has indeed happened). Saying that "the
killing will be excused . . . as a matter of criminal law" might be
technically accurate, but strikes me as quite
misleading.
More broadly, the argument
here is just a non sequitur: If guns are banned and law-abiding people
aren't able to have guns, their problem won't be that they'll be prosecuted
for shooting their attackers -- it will be that they will lack the tools to
shoot their attackers. So all the argument about lawful self-defense, and
the attached quote from the Model Penal Code, is quite beside the
point.
- "A real hunter, they argue, uses a rifle or a shotgun, not a
semi-automatic machine gun." Of course, semi-automatic is the antonym
of "machine gun." By definition, no semi-automatic is a machine gun, and
vice versa. There are tens of millions of perfectly legal semi-automatic
guns in America (many of them rifles), none of which are machine guns, which
are already largely banned, except for lawful grandfathered weapons (of
which there are probably about 100,000 in civilian hands in the country). So
this wrongly suggests to the reader that the question is whether we should
ban machine guns (it's not, since they're already largely banned), and that
allowing ownership of semi-automatics means allowing ownership of machine
guns.
There are quite a few other
problems in this piece, I think, some of which are quite a bit deeper than
these. For instance, even when the chapter correctly identifies colonial and
early state restrictions on gun ownership, that hardly supports the
proposition that the right was not understood as an individual right -- any
more than many colonies' suppression of speech by slaves, speech by religious
dissenters, libel, and so on shows that the freedom of speech was not
understood as an individual right.
Also,
there are quite a few statements that strike me as rather misleading or
incomplete, even if not entirely inaccurate. For instance, if one is to assert
things like "The contemporary debate is exactly over that question: Do
Americans have a constitutional right to keep and bear arms outside the
context of a militia which no longer exists?," it might be worth acknowledging
that under the currently effective Militia
Act, 10 U.S.C. sec. 311 (enacted in 1956), the militia
actually does exist, and with much the same membership that it has
since the enactment of the Second Amendment: "The militia of the United States
consists of all able-bodied males at least 17 years of age and . . . under 45
years of age who are, or who have made a declaration of intention to become,
citizens of the United States and of female citizens of the United States who
are members of the National Guard." (Given the Supreme Court's mid-1970s sex
equality decisions, the militia almost certainly consists of women age 17 to
45 as well.) I take it that the author might have been making a more general
point, which is that the militia no longer exists as an effective,
trained-during-peacetime fighting force, though it's not clear that it was
ever effective and substantially trained during peacetime. Still, literally
the sentence seems to suggest a broader and more objective lack of existence,
which doesn't seem to me accurate.
In any
case, though, I thought that in this post I'd focus on the items that are most
clearly factual errors -- and it seems to me that there are quite a few here,
more than the State Department would want in the publications that it
distributes.
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