Check out this chapter (UPDATE: The page has been at least temporarily removed, but I’ve put up a google cache version of the original page here) of a publication distributed by the State Department, one of the just five that are most prominently presented on the Publications page on the Department’s site. There’s much that I disagree with in the emphasis that the chapter places on various items, and in the omission of various items that would provide some pretty material counterarguments. But here are a few items that strike me as just plain wrong:
- “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 consis
ts 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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