The Battle Over the Right to Bear Arms in America
W.W. Norton: 361 pp., $27.95
Adam Winkler's "Gunfight" is a potboiler of constitutional interpretation and is both a vital history and an intellectually satisfying, emotionally rewarding tale of a great case.
The backbone of his book is District of Columbia vs. Heller, a landmark gun-control case decided by the U.S. Supreme Court in 2008. As a contest of constitutional principles, Heller tested the question of whether the famously ambiguous 2nd Amendment ("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") protected militias and reached individuals only derivatively or whether it guaranteed every American the right to own a firearm. No decision of the Supreme Court had ever reached the latter conclusion, and others had tipped the other way, upholding, for instance, the right of the government to restrict machine guns.
But Heller is more than a case. Dick Heller was a Washington, D.C., security guard who lived across the street from a crime-ridden abandoned housing project. He was allowed to carry a firearm at work, but when he applied for a permit to bring one home to defend himself, he was barred under district law from getting one.
Winkler, a law professor at UCLA, could certainly be forgiven if he chose to concentrate on Heller the case and ignore Heller the person. Constitutional theory is intentionally impersonal, but cases also are human stories, with suffering and conflict, drama and history. Winkler recognizes that and mines it.
As Winkler plumbs the historical record, he follows it with curiosity and intellectual honesty. Generations of court scholars have simply announced that the record is clear on whether the 2nd Amendment guarantees an individual the right to bear arms. For decades, the consensus was that it did not; then, more recently, the analysis began to shift in favor of an individual rights' reading of that same frustrating language. Winkler discovers ancient British antecedents that do suggest support for an individual rights' reading and notes that in early America, federal law not only allowed for possession of individual weapons but in some cases required it — what Winkler slyly describes as "the founding fathers' version of an individual mandate."
And yet, even as he produces evidence of early recognition of gun rights, Winkler also uncovers substantial historical support for gun control restricting those rights. "The right to bear arms in the colonial era was not a libertarian license to do whatever a person wanted with a gun," Winkler writes. "When public safety demanded that gun owners do something, the government was recognized to have the authority to make them do it." Thus, gun owners were barred from selling guns to Native Americans and blacks — and to those who refused to swear allegiance to the Crown.
As American society grew, gun rights and gun control continued to coexist and produce some of our history's more remarkable bedfellows. Early supporters of gun control included the Ku Klux Klan, which saw it as a way to disarm blacks, and a later backer was California Gov. Ronald Reagan, who admired it as a way to stymie the Black Panthers, whose revolutionary identity sprung from its enthusiastic display of firearms. Many of the towns of the Wild West required residents and visitors to check their weapons; indeed, gun control laws in many of those places were more restrictive than today's statutes. Even the National Rifle Assn. supported limits on who could own guns and waiting periods for those who sought to buy handguns.
As Winkler explores this complicated and fascinating history, he dips in and out of the Heller case. That can produce frustrating reading, as Winkler loops back to the case and reminds readers of details and history, sometimes repetitively.
That annoyance is small, however, compared with the reward. His book climaxes in the Heller ruling, which he examines with the same even-handedness that characterizes the rest of "Gunfight." The majority opinion in Heller was written by Justice Antonin Scalia and was hailed as a triumph of originalism, the shady legal doctrine that has many adherents but little to show for itself as a method of constitutional interpretation. In this case, Scalia bolstered his conclusion that the 2nd Amendment did protect an individual right by scouring history; his more important triumph may have been that he coaxed the dissenters to do the same, seeming to validate the method even though the sides reached opposite conclusions.
But once the dust had settled on Heller, it was conservatives who lit upon the vacuity of Scalia's method and opinion. Judge J. Harvie Wilkinson III, a leading conservative contender for the Supreme Court, accused Scalia of doing precisely what conservatives often accuse liberals of: importing his own values into the Constitution. Heller and Roe vs. Wade, he charged, "are guilty of the same sins."
Most damning, however, was the critique of Nelson Lund, a conservative law professor with deep knowledge of the 2nd Amendment and admiration for originalism. Lund spotted the sleight of hand in Scalia's work: The real question for originalists was not whether the 2nd Amendment protected the right to bear arms but whether the District of Columbia's ban on handguns violated that right. In answering that question, Scalia had written that handguns today "are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid."
But that's not originalism. Scalia's observation about the prevalence of handguns today may support striking down the D.C. law, but it says nothing about the founders' views. Moreover, the majority went on to allow for a number of exceptions to the individual right it was announcing. Governments still could ban guns in schools or government buildings — the Supreme Court, notably, does not allow guns inside — and they could bar the mentally ill or ex-felons from owning guns. But none of those exceptions existed when the 2nd Amendment was written, so where did Scalia discover the originalist support for them? The obvious answer is that he didn't. He wrote an opinion that supported his policy preference and then draped it in constitutional authority. In Heller, Scalia produces an opinion that, as Lund puts it, makes "originalism look as lawless and result-oriented" as the liberal activism it's intended to counter.
Winkler's analysis of all this is delivered with panache and clarity. His book is an antidote to so much in the gun debate that is one-sided and dishonest. "Gunfight" reminds us that guns are part of American culture and will continue to be. And that gun control is as well.
Jim Newton is The Times' editor-at-large and the author of "Eisenhower: The White House Years."