With its publication of “The Secret History of Guns” in that venerable highbrow monthly, The Atlantic, it appears that the northeastern establishment has uncovered the dark “secret” of gun control – that gun control laws exist not to control guns, but people – in particular, black people.
Congratulations to the wine and brie crowd for making that discovery. It’s a point my father, gun writer and pro-rights lobbyist Neal Knox, was making 40 years ago. Friend Clayton Cramer, published his excellent “Racist Roots of Gun Control” in 1993, and the article was picked up in the Kansas Journal of Law and Public Policy in 1995. Nonetheless, since it’s now in The Atlantic, it’s accepted thought inside the establishment.
Adapted from a recently-released book, “Gunfight” by UCLA constitutional law professor Adam Winkler, “The Secret History of Guns” opens with the 1967 armed march by Black Panthers on the California state capitol building. Professor Winkler quite accurately says that incident “launched the modern gun-rights movement.”
Winkler then moves through a compact history of gun rights in America, starting with the Second Amendment, which he calls “maddeningly ambiguous,” citing a conflict between the meaning of “well-regulated,” and “the right of the People.”
Just an aside, a student of language might find less ambiguity by applying a simple analysis to the text, identifying the subject, verb, object and modifiers. Nonetheless, we’ll let it pass; Winkler’s statement can be viewed as either a sop to the anti-rights side of the issue or an effort by Winkler to establish his neutrality. The rest of the article delves into the history of gun control from the angle of race and aligns quite closely to arguments we in the pro-rights side have been making for years.
The gun rights debate is not a liberal-versus-conservative argument. The fundamental issue at stake in the gun rights debate is liberty – whether, how, and to what extent government can or should manage the lives of the People. In the 18th century, Americans felt an intrusion by a foreign government in their daily lives and took up arms. The Bill of Rights, particularly the First and Second Amendments, is a souvenir of that struggle, intended not so much to allow such a revolution to happen again, as to ensure that a second revolution does not become necessary.
As Winkler moves his survey to the 19th Century and the issues around the 14th Amendment, he points out that the right to arms was most assuredly part of the rights of a full citizen. That was the position of the men on both sides of the issue of slavery and the 14th Amendment. As Winkler writes,
Whether or not the Founding Fathers thought the Second Amendment was primarily about state militias, the men behind the Fourteenth Amendment – America’s most sacred and significant civil-rights law – clearly believed that the right of individuals to have guns for self-defense was an essential element of citizenship.
As the Yale Law professor Akhil Reed Amar has observed, “Between 1775 and 1866 the poster boy of arms morphed from the Concord minuteman to the Carolina freedman.”
The Fourteenth Amendment illustrates a common dynamic in America’s gun culture: extremism stirs a strong reaction. The aggressive Southern effort to disarm the freedmen prompted a constitutional amendment to better protect their rights. A hundred years later, the Black Panthers’ brazen insistence on their right to bear arms led whites, including conservative Republicans, to support new gun control. Then the pendulum swung back. The gun-control laws of the late 1960s, designed to restrict the use of guns by urban black leftist radicals, fueled the rise of the present-day gun-rights movement – one that, in an ironic reversal, is predominantly white, rural and politically conservative.
While Professor Winkler sees irony in the demographics of the pro-rights movement, and seems to have a hard time getting his head around the idea, we in the rights community have for years pointed out the problem with laws that invite police discretion over who should be “allowed” to own and carry guns. If the police are biased against a citizen based on ethnicity, cultural background, or they just don’t like an individual, then police discretion becomes a poor yardstick to use for judging a fundamental right – the right to self-defense. Martin Luther King’s house was bombed, but he was turned down for a concealed carry permit.
As Winkler moves into the 20th century, the National Rifle Association enters the picture.
“In the 1920s and 1930s, the NRA was at the forefront of legislative efforts to enact gun control,” Winkler writes, and continues to describe the Uniform Firearms Act, a model state gun-control law. The act had three major elements of the law, including a ban on concealed carry except under a permit granted by police only to a “suitable” person, as Winkler quotes the model act, with a “proper reason for carrying” a gun. Second, the model act would require gun dealers to report to law enforcement every sale of a handgun, in essence creating a registry of small arms. Third, the model law imposed a two-day waiting period on handgun sales.
As Winkler points out, “the NRA today condemns every one [italics in original] of these provisions as a burdensome and ineffective infringement on the right to keep and bear arms.” To which we would add, “and rightly so!”
The NRA that endorsed the 1934 National Firearms Act and even signed off on major provisions of the 1968 Gun Control Act, has been a markedly different organization since 1977. Winkler scans the history of the NRA’s tumultuous 1977 members meeting (Winkler characterizes it as a “coup”), when members, operating under long-ignored rules, seized control of the organization from a dreadfully out-of-touch leadership and put Harlon Carter at the helm.
The transformation, as Winkler points out with some amazement, gave the new NRA an outlook remarkably similar to that of the Black Panthers: “Both groups valued guns primarily as a means of self-defense. Both thought people had a right to carry guns in public places, where a person was easily victimized, and not just in the privacy of the home. They also shared a profound mistrust of law enforcement.”
What Winkler misses or sidesteps is the grounds for that mistrust. In 1971 agents of the Alcohol Tobacco Firearms Division (which would eventually morph into the Bureau of Alcohol Tobacco, Firearms and Explosives) had raided the home of Kenyon Ballew in search of non-existent explosives, shooting Ballew and leaving him with wounds that destroyed his life. The Ballew raid was only the first of more to come, of gun dealers facing felony charges over paperwork errors, of gun owners unknowingly violating the law by directly gifting guns from family member to family member across state lines, to the ultimate horror of the Waco disaster. The Black Panthers distrusted the police based on bitter experience. Likewise, the police, and in particular the BATFE, had earned gun owners’ distrust over a period of years.
It is interesting to read Professor Winkler’s history, particularly from the 1977 NRA meeting forward, and to see my father’s shadow looming over the scene. It was Neal Knox who introduced the bylaw amendments that reorganized the NRA and who nominated Harlon Carter. It was Neal Knox who quite consciously recognized the alignment of interests between the white and middle-American NRA, and those of urban blacks. It was Neal Knox who at the helm of the NRA’s Institute for Legislative Action and, over intense objections from the “old guard” NRA, pushed the NRA into politics, driving introduction of the bill that eventually would reform some of the worst aspects of the 1968 Gun Control Act, and the endorsement of Reagan. Neal Knox’s name does not appear in Winkler’s Atlantic article, but he surely needs to be in the book.
My brother Chris has sent a copy of Dad’s collected writing, “Neal Knox – The Gun Rights War” to Professor Winkler just to make sure he has a copy of the record from Neal Knox’s perspective.
The article wraps up with a survey of the Supreme Court’s Heller case, which, for the first time, affirmed Second Amendment rights as a personal right to keep and bear arms. Few in the pro-rights community, or on the anti-gun side, would have argued that Heller would settle the issue of the Second Amendment once and for all. That has proven true in Heller and in the cases that have followed.
“The courts have been inundated with lawsuits,” writes Winkler, “challenging nearly every type of gun regulation; in the three years since the Supreme Court’s decision, lower courts have issued more than 200 rulings on the constitutionality of gun control. In a disappointment to the gun-rights community, nearly all laws have been upheld.”
As Winkler notes, most of those rulings have hinged on a paragraph penned by Antonin Scalia, who wrote the majority opinion affirming the right to keep and bear arms. Scalia wrote that the ruling would not overturn “longstanding prohibitions on the possession of firearms by felons and 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.”
I’m fairly certain that the single paragraph in Scalia’s otherwise utterly pro-rights opinion was inserted to get a final wavering vote, perhaps that of Kennedy. With the cases that will inevitably come before the Court, I’m hopeful that Justice Scalia will be able to firm up his opinion.
Winkler’s article in The Atlantic, constrained as it is by space, is nonetheless a good overview of the history of gun legislation in America as seen from a perspective that, while not part of the pro-rights movement, is not utterly hostile either. I’ll be interested in seeing a more complete version in book form.
The gun rights war has always been a pendulum, moving, as Winkler notes, from radical act to backlash. Nonetheless, the pro-rights side of the argument has the advantage of a very clear touchstone in the debate. Regardless whether labeled as “liberal” or “conservative,” gun rights have a foundation in liberty. By focusing on the principle of liberty, side issues of demographics and political labels become less important.