350. "Are Liberal Scholars Acting Irresponsibly on Gun Control?" The Chronicle of Higher Education (April 6, 2001), pp B14-15.
A recent court case now under appeal in the Fifth Circuit, United States v. Emerson, raises, once again, the question of whether Americans have a constitutionally protected right to own guns. But it also raises an issue more specific to academe: Are revisionist, liberal legal scholars acting irresponsibly by handing rhetorical ammo to gun proponents? Are these scholars historical interpretations helping gun advocates take potshots at the Supreme Court's longstanding support of state gun control?
To most Americans the answer to the constitutional-protection question seems obvious. The Second Amendment is often referred to simply as the "right to bear arms." The full text reads, "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." Few people seem to be aware that so far, whenever this issue reached the highest court of the land, in cases that span nearly 125 years, the court ruled that there is no constitutional barrier to limiting or removing guns owned by individuals.
In an overview of these cases none other than Erin N. Griswold, solicitor general in the Nixon administration, and former dean of Harvard Law School, noted: "Never in history has a federal court invalidated a law regulating the private ownership of firearms on Second Amendment grounds. Indeed, that the Second Amendment poses no barrier to strong gun laws is perhaps the most well settled proposition in American constitutional law."
The relevant Supreme Court cases are United States v. Cruikshank (1875); Presser v. Illinois (1886); Miller v. Texas (1894); United States v. Miller (1939); Lewis v. United States (1980); Quilici v. The Village of Morton Grove (1983); Higgins v. Farmer (1991); and Printz v. United States (1997). Though the details of these cases vary, and like all such cases they are subject to different readings, the decisions reached in all of them fundamentally affirms that the Constitution does not limit the states' ability to restrict private gun ownership. For instance, in United States v. Miller, the most often cited of these cases, Jack Miller had not properly registered his sawed-off shotgun, nor had he paid a tax for transporting this weapon in interstate commerce, both required under the 1934 Firearms Act. Miller claimed that the Act violated his Second Amendment rights. The Court ruled that because Miller could not prove that his shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
Seems plain enough. But when I posted an overview of these Supreme Court cases on a web page, it unleashed a volley of criticisms. Although many of the responses were simply cuss words, several readers offered actual arguments. Some correspondents quoted Washington, Jefferson, Madison, and George Mason to show that our founding fathers were proponents of private gun ownership. My response is that ours is a government by laws which cannot be trumped by quotations from even the most established patriotic icons.
A few questioned my interpretation of the Supreme Court cases (prepared with the help of Linda Abdul-Malek, at the time a law student at University of Virginia). Without going into textual analysis here, the best quick-and-dirty evidence I can provide in support of my interpretation is that the National Rifle Association, as a rule, has not challenged gun control laws before the Supreme Court. It knows what the outcome would be.
Others respondents argued that one should avoid what James Boyle, a law professor at Duke University, called "a positivist view of constitutional law," that one should not be bound by what the Supreme Court stated as it can be wrong and even overrule itself. Fair enough. However, I wonder, if we are not going to accept as the legal standard the high court's rulings when they all line up over 125 years, what are we going to go by?
As a last resort, unable to find any other ground to stand on, those who see an individualized right to bear arms quoted academics--stressing that many of these scholars were liberals. They pointed to William Van Alstyne, a law professor at Duke and formerly a member of the National Board of Directors of the American Civil Liberties Union, who wrote that "the essential claim... advanced by the NRA with respect to the Second Amendment is extremely strong." They cited Harvard Law School's Laurence Tribe, a prominent liberal law scholar, as having re-evaluated his interpretation of the Second Amendment, now asserting that it does entail an individual's right to bear arms, although the right is "of uncertain scope."
The champions of an individualized right to bear arms found particularly compelling a 1989 article in the Yale Law Journal by Sanford Levinson, a highly regarded law professor at the University of Texas. Levinson provides textual, historical, and structural arguments in support of an individual's right to bear arms.
None of these revisionist interpretations of the Second Amendment came up with some newly discovered, unambiguous, incontestable document. The revisionist arguments are fundamental explorations of what the Founding Fathers meant to say, considering the social climate that existed centuries ago, the number of guns Americans owned at the time, and other such matters.
Very bright scholars are naturally intrigued and challenged by, and rewarded for, going against the grain. Nobody is going to be accorded a prize or promotion, or even get published, for documenting the prevailing consensus. In contrast, making the equivalent argument that the earth is flat after all, especially if the case is made with verve, ingenuity, and wit, is sure to command collegial attention.
But in the case of gun control, although no one would contest revisionist scholars' right to engage in such research, I can't help but wonder if they are right to engage in such research. Much more is at stake than giving solace to gun advocates. The revisionist arguments, which I suspect start out as clever seminar-speak, may well influence the courts, now that the issue of the Second Amendment's meaning has been reopened in Emerson. The case concerns a woman who argued that her husband, whom she was divorcing, threatened her with a gun. A local court indicted the husband on the basis of a gun-control law. However, a federal trial judge in Texas, declared the indictment unconstitutional--because in his judgment it violates the Second Amendment.
In June, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in New Orleans heard oral arguments in the case. Though the court could decide to avoid the Second Amendment issue in its decision--by declaring that the gun control law in question, the Violent Crime Control and Law Enforcement Act of 1994, exceeds congressional authority under the Supreme Court's recent federalism decisions, for example--it is quite possible that the court will base its decision on the veracity of the federal judge's interpretation of the Second Amendment. If that occurs, there is a good chance that the case will head to the Supreme Court.
However high the case goes, it has most certainly been affected by the arguments of the revisionist professors. For instance, Joyce Lee Malcolm of Bentley College is one of the most influential scholars to make the historical argument in favor of the individual right to bear arms. She asserts that an individual right to weapons can be traced back to the English Declaration of Rights of 1689. In his ruling on the case that reversed Emerson's indictment, Sam R. Cummings, judge for the U.S. District Court for the Northern District of Texas, used Professor Malcolm's work as one of his sources.
If one believes that privately held guns allow innocent citizens to protect themselves from criminals and are essential for keeping a nation free, one is sure to cheer that frame of reference. If one holds, as most studies do, that guns provide more danger than protection, and notes that other democratic societies greatly limit private gun ownership, one is naturally troubled by the threat that the new scholarship may help to overturn a strong and long-established endorsement of gun control laws by the Supreme Court.
With so much at stake, should scholars refrain from conducting studies that might have grave unsettling social consequences? Levinson addresses this issue squarely. He writes, "If one does accept the plausibility of any of the arguments on behalf of a strong reading of the Second Amendment, but, nevertheless, rejects them in the name of social prudence and the present-day consequences produced by finicky adherence to earlier understandings, why do we not apply such consequentialist criteria to each and every part of the Bill of Rights?"
To be sure, we cannot allow social consequences to dominate what we publish. That would be the end of scholarship. But should we therefore run to the other end of the seesaw and completely ignore social consequences? Would my colleagues put on their web site a study that demonstrating how to make the Ebola virus in a kitchen sink? Would they publish ways to make nerve gas in one's basement? As I see it, when the results of a publication may well be fatal on a large scale, great weight should be given to social prudence.
The question becomes even more relevant when the new findings are largely, if not fully, matters of interpretation. There are, of course, those who argue that all truth is socially constructed. But as Marx and Lenin pointed out, some sciences are more constructed than others. When we deal with historical interpretations of the founders' intentions, and consider what the social conditions were when the Second Amendment was written, we are building on rather fragile foundations. Hence we ought to be particularly sensitive to the question: how strong is this evidence that leads us to socially imprudent conclusions?
Most important is the question of how we choose what to study. Even a truth-purist, who maintains that once we conduct a study we are bound to publish whatever we find, will acknowledge that it is fully legitimate to take ethical considerations into account when we decide what to study.
In the 60s, my sociologist colleagues at Columbia University refrained from studying ways to develop subliminal advertising. In those days many believed that it was possible to brainwash people by broadcasting messages that were too quick for the eye to discern but would nevertheless reach the brain.
And none of us would touch with a hundred-foot pole the subject Richard J. Hernstein and Charles Maury later made theirs in The Bell Curve: Intelligence and Class Structure in American Life--whether there is a correlation between race and IQ. I don't recall discussing the possibility of such a study explicitly. But my strong impression is that we feared that the results, which could well merely reflect past discrimination, might be interpreted as reflecting genetic differences between races, despite whatever controls we would introduce into the study or whatever qualifications we would include in the published results.
Whether or not one agrees with such decisions, they give no offence to the ethos of science or scholarship. The same, I hold, would be the case if my good colleagues in law schools would consider whether they should devote themselves to an academic pursuit other than undermining the Supreme Court rulings that have rendered gun control possible and legitimate.
Amitai Etzioni is University Professor and director of the Institute for Communitarian Policy Studies at George Washington University. His most recent book is Next: The Road to the Good Society (Basic Books, 2001). A position paper, of which he is a co-author, in favor of British-style "domestic disarmament" can be read at pop_disarm.html