A Liberal Law Professor Calls for Defense of 2nd Amendment

March 1st, 2012

Robert J. Cottrol is professor of law and history and the
Harold Paul Green Research Professor at the George
Washington University. His most recent book is From African
to Yankee: Narratives of Slavery and Freedom in Antebellum
New England

FYI (copy below):
http://www.taemag.com/issues/articleID.18216/article_detail.asp

TAE Classics
Assault Rifle Ban Set to Expire

The restriction on the sale of military-type assault weapons
will expire on Monday, lacking the support in Congress
needed to renew the bill. Originally passed under President
Clinton in 1994, the ban was met with an array of
vacillating assessments, and, while gun control advocates
called it a step in the right direction, the bill was so
teeming with loopholes that critics said it merely had a
“cosmetic” effect on the rifles manufactured and sold in the
United States. Although President Bush acknowledged his
support of the bill, or at least his willingness to sign it
should it pass through Congress, he declined to rally
lawmakers. The bill enjoys strong support among
Americans–nearly 68 percent approval, including many NRA
members, according to a poll by the Annenberg Public Policy
Center of the University of Pennsylvania–but lesser support
among Congressional leaders.

In the September/October 1999 issue, TAE published an
article written by a self-proclaimed “1960s Humphrey
Democrat” supporting the Second Amendment. Click here to
purchase this issue.

A Liberal Democrat’s Lament

Robert J. Cottrol

“Certainly one of the chief guarantees of freedom under any
government, no matter how popular and respected, is the
right of the citizen to keep and bear arms. This is not to
say that firearms should not be very carefully used and that
definite rules of precaution should not be taught and
enforced. But the right of the citizen to bear arms is just
one more safeguard against a tyranny which now appears
remote in America, but which historically has proved to be
always possible.”

–Hubert Humphrey, 1960

My background is probably atypical for a somewhat
high-profile supporter of the right to keep and bear arms.
I am black and grew up in Manhattan’s East Harlem, far
removed from the great American gun culture of rural, white
America. Although my voting patterns have become somewhat
more conservative in recent years, I remain in my heart of
hearts a 1960s Humphrey Democrat concerned with the plight
of those most vulnerable in American society–minorities,
the poor, the elderly, and single women–groups whose
day-to-day realities are often overlooked in our public
policy debates, people whose lives too often go unnoticed by
our intellectually timid chattering classes. This is
happening in the public debate over the right to bear arms.

For the nation’s elites, the Second Amendment has become the
Rodney Dangerfield of the Bill of Rights, constantly
attacked by editorial writers, police chiefs seeking
scapegoats, demagoging politicians, and most recently even
by Rosie O’Donnell, no less. It is threatened by
opportunistic legislative efforts, even when sponsors
acknowledge their proposed legislation would have little
impact on crime and violence.

Professional champions of civil rights and civil liberties
have been unwilling to defend the underlying principle of
the right to arms. Even the conservative defense has been
timid and often inept, tied less, one suspects, to abiding
principle and more to the dynamics of contemporary
Republican politics. Thus a right older than the Republic,
one that the drafters of two Constitutional amendments–the
Second and the Fourteenth–intended to protect, and a right
whose critical importance has been painfully revealed by
twentieth-century history, is left undefended by the
lawyers, writers, and scholars we routinely expect to defend
other constitutional rights. Instead, the Second
Amendment’s intellectual as well as political defense has
been left in the unlikely hands of the National Rifle
Association (NRA). And although the NRA deserves
considerably better than the demonized reputation it has
acquired, it should not be the sole or even principal voice
in defense of a major constitutional provision.

This anemic defense is all the more embarrassing because it
occurs as mounting evidence severely undermines the three
propositions that have been central to the anti-gun movement
since its appearance on the national radar screen in the
1960s. The first proposition is that the Constitution,
particularly the Second Amendment, poses no barrier to
radical gun control, even total prohibition of private
firearms. The second is that ordinary citizens with
firearms are unlikely to defend themselves and are more
likely to harm innocent parties with their guns. The final
proposition is that the case for radical gun control is
buttressed by comparing the United States to nations with
more restrictive firearms policies. These propositions, now
conventional wisdom, simply do not stand up to scrutiny.

The proposition that the Second Amendment poses no barrier
to gun prohibition–a claim largely unknown before the
1960s–has run up against stubborn, contrary historical
facts. Increasingly, historians and legal scholars,
including many who support stricter gun control, have
examined the history of the Second Amendment, the
development of the right to arms in English political
thought, judicial commentaries on the right in antebellum
America, and the debates over the Fourteenth Amendment. The
consensus among scholars who have actually looked at the
evidence is that the Second and Fourteenth Amendments were
meant to protect the citizen’s right to arms. (See, for
example, historian Joyce Lee Malcolm’s Harvard University
Press book, To Keep and Bear Arms, or the historical
documents assembled in the three Gun Control and the
Constitution volumes I’ve edited.)

Similarly, the criminological premises of the anti-gun
movement have collapsed in the face of serious social
science. For better than three decades the American public
has been solemnly assured that peaceable citizens who
possess guns for self-defense are disasters in waiting. “A
gun in the home is more likely to kill a member of the
family than to defend against an intruder,” we hear.
“Allowing citizens to carry firearms outside the home for
self-protection will turn our streets into Dodge City and
our parking lots into the O.K. Corral,” the refrain goes.

Yet the criminological literature provides little support
for this caricature of gun owners. Instead, careful
research has discovered an incredibly high amount of
firearms’ being responsibly used in self-defense. Research
by Florida State University criminologist Gary Kleck and
others indicate between two and three million cases of
self-defense per year. Overwhelmingly these incidents
involve not firing the weapon at the attacker, but simply
brandishing it and thereby causing the attacker’s
withdrawal.

In recent years a majority of states have passed laws
permitting honest citizens to carry concealed weapons, and
the results tell us much about self-defense and the
responsibility of the average citizen. Once it was
passionately argued that such laws would turn minor
altercations into bloody shoot-outs; now we know better.
Over 1 million Americans have licenses to carry firearms,
but firearms misuse by this group has been utterly
negligible. Criminologists now debate not how much harm has
been caused by concealed-carry laws, but how much good.

The most thorough research, by John Lott of the University
of Chicago, reveals that concealed-carry laws have had a
substantial deterrent effect on crimes of violence. His
work shows that women, especially, have benefitted, as
substantial drops in rapes and attacks on women have
occurred where the laws have been enacted. Lott also
discovered dramatic benefits for the urban poor and
minorities: “Not only do urban areas tend to gain in their
fight against crime, but reductions in crime rates are
greatest precisely in those urban areas that have the
highest crime rates, largest and most dense populations, and
greatest concentrations of minorities.”

The final proposition–that international comparisons prove
the case for radical gun control–may be the most
problematic of all. Certainly the simplistic conclusion
that American homicide rates are higher than those in
Western Europe and Japan because of the greater prevalence
of firearms glosses over significant cultural and
demographic differences between us and other advanced
industrial nations.

The American population is younger and more diverse. Unlike
Western Europe and Japan, the United States has always had a
large number of immigrants and internal migrants. We also
have a history of racial exclusion and a struggle against
that exclusion as old as the Republic and without real
parallel in comparable nations. All of these have
contributed to crime rates higher than those in other
western nations. Indeed, when a number of the cultural and
demographic variables are controlled for, much of the
apparent difference between American and Western European
homicide rates disappears–despite the greater presence of
firearms in American society.

But international comparisons should raise deeper and more
disturbing questions, questions too rarely asked in serious
company. The central and usually unchallenged premise of
the gun control movement is that society becomes more
civilized when the citizen surrenders the means of
self-defense, leaving the state a monopoly of force.

That this premise goes largely unchallenged is the most
remarkable feature of our gun control debate. We are ending
a century that has repeatedly witnessed the consequences of
unchecked state monopolies of force. University of Hawaii
political scientist Rudolph J. Rummel, one of the leading
students of democide (mass murder of civilian populations by
governments), has estimated that nearly 170 million people
have been murdered by their own governments in our century.
The familiar list of mass murderers–Hitler, Stalin, Mao,
Pol Pot–only scratches the surface. The mass slaughter of
helpless, unarmed civilian populations continues to this
very day in Sudan, Rwanda, and parts of the former
Yugoslavia.

The reluctance of outside forces to intervene is well
documented. And yet the obvious question is strangely
absent: Would arms in the hands of average citizens have
made a difference? Could the overstretched Nazi war machine
have murdered 11 million armed and resisting Europeans while
also taking on the Soviet and Anglo-American armies? Could
50,000-70,000 Khmer Rouge have butchered 2-3 million armed
Cambodians? These questions bear repeating. The answers
are by no means clear, but it is unconscionable they are not
being asked.

Need Americans have such concerns? Well, we have been
spared rule by dictators, but state tyranny can come in
other forms. It can come when government refuses to protect
unpopular groups–people who are disfavored because of their
political or religious beliefs, or their ancestry, or the
color of their skin. Our past has certainly not been free
of this brand of state tyranny. In the Jim Crow South, for
example, government failed and indeed refused to protect
blacks from extra-legal violence. Given our history, it’s
stunning we fail to question those who would force upon us a
total reliance on the state for defense.

Nor should our discussion of freedom and the right to arms
be limited to foreign or historical examples. The lives and
freedoms of decent, law-abiding citizens throughout our
nation, especially in our dangerous inner cities, are
constantly threatened by criminal predators. This has
devastated minority communities. And yet the effort to
limit the right to armed self-defense has been most intense
in such communities. Bans on firearms ownership in public
housing, the constant effort to ban pistols poor people can
afford–scornfully labeled “Saturday Night Specials” and
more recently “junk guns”–are denying the means of
self-defense to entire communities in a failed attempt to
disarm criminal predators. In too many communities,
particularly under-protected minority communities, citizens
have simply been disarmed and left to the mercy of
well-armed criminals.

This has led to further curtailment of freedom. Consider
initiatives in recent years to require tenants in public
housing to allow their apartments to be searched: First,
police failed for decades, for justifiable but also far too
frequently unjustifiable reasons, to protect citizens in
many of our most dangerous public housing projects. Next,
as the situation became sufficiently desperate, tenants were
prohibited from owning firearms for their own defense.
Finally the demand came, “Surrender your right to privacy in
your home.” The message could not be clearer: A people
incapable of protecting themselves will lose their rights as
a free people, becoming either servile dependents of the
state or of the criminal predators who are their de facto
masters.

All of this should force us to reconsider our debate over
arms and rights. For too long, it has been framed as a
question of the rights of sportsmen. It is far more
serious: The Second Amendment has something critical to say
about the relationship between the citizen and the state.
For most of human history, in most of the nations in the
world, the individual has all too often been a helpless
dependent of the state, beholden to the state’s benevolence
and indeed competence for his physical survival.

The notion of a right to arms bespeaks a very different
relationship. It says the individual is not simply a
helpless bystander in the difficult and dangerous task of
ensuring his or her safety. Instead, the citizen is an
active participant, an equal partner with the state in
ensuring not only his own safety but that of his community.

This is a serious right for serious people. It takes the
individual from servile dependency on the state to the
status of participating citizen, capable of making
intelligent choices in defense of one’s life and ultimately
one’s freedom. This conception of citizenship recognizes
that the ultimate civil right is the right to defend one’s
own life, that without that right all other rights are
meaningless, and that without the means of self-defense the
right to self-defense is but an empty promise.

Our serious thinkers have been absent from this debate for
too long. The Second Amendment is simply too important to
leave to the gun nuts.

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A Liberal Law Professor Calls for Defense of 2nd Amendment