Lock and Load:
Protecting Individual Rights,
Preserving Freedom,
Saving Lives

By Alexander Volokh
Harvard Independent, November 14, 2002

Guns, who needs them? Do they contribute to our violent, lawless culture -- or, as Robert Heinlein put it, is an armed society a polite society? Is the Second Amendment a guarantor of our fundamental liberties, or an antiquated relic, which in any case permits sweeping handgun bans? In this article, I will argue three points. First, the Second Amendment guarantees an individual right to keep and bear arms, not a collective right to bear arms within an organized state militia. Second, gun control can kill, and increased availability of guns in the hands of law-abiding citizens can save lives. Third, the right to keep and bear arms has historically been justified not only by the need to defend oneself against criminals but also as a check against tyrannical government -- and after a century of totalitarianism and holocausts around the world, this argument is more relevant than ever.

First, let's look at the Constitution. What does the Second Amendment mean by "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"? There are three main schools of thought on this point. The first view is that this is purely the right of a state to arm its militia. The second view is that the right, while "individual," can only be exercised by members of an organized state militia. These two "collective rights" views have been endorsed by most of the nation's appeals courts. The third view, "that the Second Amendment recognizes the right of individuals to keep and bear arms," was recently endorsed by the Fifth Circuit court of appeals in United States v. Emerson, and also been favored in many sectors of the academy, particularly in the last 20 years.

So which view is correct, the individual or collective rights view? The word "people" in the Second Amendment is the same word used in the First Amendment (guaranteeing "the right of the people peaceably to assemble") and in the Fourth Amendment (guaranteeing "[t]he right of the people to be secure . . . against unreasonable searches and seizures"), and those rights clearly belong to individuals, not to states. Governments, in the Constitution, have "powers" or "authority," not "rights." [Note: Commentators did elsewhere refer to governments as having "rights" in the Founding period, so this last sentence isn't as convincing as I thought it was when I wrote the article. -- SV] The phrase "bear arms" was often used in early state constitutional provisions and declarations of rights to include "bear[ing] arms in defense of [oneself]," as well as in defense of the state. And ratification debates similarly support the individual rights view.

And what about the preamble, with its reference to a well-regulated militia? First, "militia," contrary to popular usage, was used back then to refer to all free adult male inhabitants, not just state military organizations, and even today, the militia statute defines "[t]he militia of the United States" as all able-bodied male citizens between 17 and 45 (and all female citizens in the National Guard). Second, the preamble doesn't say, "as long as a well-regulated militia is necessary" or "only to the extent that a well-regulated militia is necessary" -- it only says the equivalent of "because a well-regulated militia is necessary." Preambles are common in laws, and everyone recognizes that they're mostly rhetorical. They may state a much broader or much narrower goal than the law actually pursues; they may recite factual findings and concerns that are downright wrong; but we don't use them if they contradict the body of the law itself.

Moreover, these sorts of justification clauses were quite common during the Founding period. According to the 1784 New Hampshire constitution, "[i]n criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed" -- though few believe nowadays that trying facts in the same county is "essential" to liberty. The 1792 Delaware constitution commands that "[a]ll penalties . . . be proportioned to the nature of the offence, the true design of all punishment being to reform, not to exterminate, mankind" -- though the idea that criminal punishment should "reform . . . mankind" is out of vogue these days. The 1780 Massachusetts constitution tells us that "[t]he freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever" -- though it's doubtful that legislators need any special provisions protecting their speech beyond the free speech protections. And yet clearly these justification clauses don't limit the guaranteed right; they only provide reasons why the right is important. They're political ads aimed at the reader, embedded in the text of the constitution. We don't get to throw the rights out when we cease believing the stated justification; that's the purpose [of] the constitutional amendment process.

So Attorney General John Ashcroft, in adopting the individual rights view at the Department of Justice, has a solid constitutional argument behind him. But the constitutional argument only gets us so far. In Emerson, with all its pro-individual rights language, the gun owner still lost, because, the court found[,] the Second Amendment right is subject to reasonable regulation, and the specific restriction at issue -- a prohibition on owning guns if you're subject to a restraining order, where the restraining order was based on a particularized finding of dangerousness -- was reasonable. One can believe in the individual rights view -- as does Larry Tribe of Harvard Law School, hardly an NRA member -- and still find many, if not most, gun restrictions reasonable enough to withstand constitutional scrutiny. Plus, none of this shows why we shouldn't repeal the Second Amendment through the amendment process. Thus, we still need to care about gun policy.

So, does gun control save lives? On the one hand, England and Japan have restrictive gun laws and low murder rates. On the other hand, Mexico, South Africa, and Russia have restrictive gun laws and high murder rates. And some countries with easy access to firearms, like Switzerland, Israel, and New Zealand, have low murder rates. Basically, anecdotes and casual cross-country comparisons won't get us far.

Gun policy researcher John Lott, now at the American Enterprise Institute, has taken a crack at a more systematic approach in his book More Guns, Less Crime: Understanding Crime and Gun Control Laws. Thirty-one states now have "shall-issue" concealed handgun laws, which means that approval for a concealed handgun is pretty much automatic if you fulfill some easy-to-meet requirements; another 12 states have "discretionary" laws, which means you can carry a gun if you can demonstrate a need to public officials. Using FBI crime statistics for all U.S. counties from 1977 to 1996 and controlling for such factors as arrest and conviction rates, demographics, and other gun control laws, Lott found that the passage of a "shall-issue" concealed-carry law reduces murders by, on average, three percent, rapes by two percent, and robberies by two percent. As expected, a fraction of that crime spills over into states next door and some of it spills over to nonviolent property crimes; overall, crime goes down. Why? Because gun control tends to disarm law-abiding citizens more than it disarms criminals; conversely, making guns more widely available benefits law-abiding citizens more than it benefits criminals; and when law-abiding citizens may be armed, criminals are scared.

Nor does this result only hold for murder, rape, and robbery. Lott and William Landes examine multiple-victim public shootings -- a category that includes events such as Colin Ferguson's Long Island Railroad rampage in December 1993, the Luby's Cafeteria shooting in Killeen, Tex. in 1991, and the spate of school shootings in Littleton, Colo. and elsewhere. Using 1977 to 1995 data, Lott and Landes find that shall-issue laws reduce both the number and the severity of multiple-victim public shootings -- again, on the straightforward theory that an armed man in a crowd can stop a mass murderer before he gets far, that murderers fear armed potential victims, that armed citizens are more common in crowds than in one-on-one attacks, and that even deranged lunatics who want to go out in a blaze of glory will rationally shy away from situations where they may die before killing anyone at all.

Lott's results are of course still controversial. But whether or not you believe the exact numbers, the "guns save lives" story is intuitively plausible. Accidents do happen, though not as often as you'd think. Only 600 people died from firearms injuries [Note: this should say "accidents" -- SV] in 2000, according to the National Safety Council. More kids drown in swimming pools every year than die from gun accidents, in a country where a third of all households own a firearm. Compare these 600 to the number of defensive gun uses each year in the U.S., variously estimated at 110,000 to over 1.5 million. These defensive uses seldom make the news -- who wants to report on a crime that didn't happen because the intended victim did nothing more than brandish a gun and scare a criminal away? But as long as guns can be used for good as well as for ill, gun control can kill to the extent it disarms the good guys more than it disarms the bad guys.

Finally, let's look at the big picture. Self-defense may be important, but it's not what was motivating historical commentators. English jurist William Blackstone wrote in his Commentaries on the Laws of England that "the right of having and using arms for self-preservation and defen[c]e" -- this is the more limited English right, before it was restricted out of fear of socialist agitators -- was essential for the vindication of the "three great and primary rights, of personal security, personal liberty, and private property." "In vain would these rights be declared, ascertained, and protected by the dead letter of the laws," Blackstone wrote, "if the constitution had provided no other method to secure their actual enjoyment"; when the courts and petition to the king and Parliament were "found insufficient to restrain the violence of oppression," the only alternative was to rely on "the natural right of resistance and self-preservation." These views are mirrored in the writings of early American commentators.

Nor are the opinions of these dead white males antiquated relics. As Elie Wiesel has written, the 20th century has been "the most violent in recorded history. Never have so many people participated in the killing of so many people." The Nazis disarmed the Jews; the Khmer Rouge disarmed the Cambodians; the Turks disarmed the Armenians. On the other hand, Klansmen in the United States in the 1910s and 1920s often met armed resistance from blacks, Catholics, and immigrants, though many states enacted gun control laws in that period in an attempt to disarm such "undesirables." In the early 1960s, Southern police officers stood by while blacks and civil rights workers were attacked but intervened to stop KKK action once blacks started defending themselves. As Don Kates and Dan Polsby write: it is "an arresting reality that not one of the principal genocides of the [twentieth] century, and there have been dozens, has been inflicted on a population that was armed."

The fundamental truth is that we all need guns. Not that everyone needs to actually own a gun, but law-abiding citizens who don't have one benefit from those who do, because the criminals can't easily tell the two groups apart. The Second Amendment guarantees an individual right, though how much this right can be limited is still open for debate, and the amendment process is still open to those who want to use it. The evidence on certain gun laws -- I've focused on liberalized concealed-carry laws -- indicates that increased gun availability can save lives, though the precise effects are still controversial. And finally, on an international scale, gun control makes tyranny and genocide a lot easier. The Founding Fathers understood this, and as we emerge from the most murderous, totalitarian century in the history of mankind, we should remember it as well.

Alexander "Sasha" Volokh is a graduate student in law and economics.

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