restricted access Chapter 8. Policy Background
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Chapter 8   Policy Background For more than 200 years, the federal courts have unanimously determined that the Second Amendment concerns only the arming of the people in service to an organized state militia; it does not guarantee immediate access to guns for private purposes. The nation can no longer afford to let the gun lobby’s distortion of the Constitution cripple every reasonable attempt to implement an effective national policy towards guns and crime. —Former U.S. Attorneys General Nicholas Katzenbach, Ramsey Clark, Elliot L. Richardson, Edward H. Levi, Griffin B. Bell, and Benjamin R. Civiletti Prescribing reasonable and feasible firearm policies for the United States requires understanding the context in which American firearms policy is set. The starting point for any discussion of this topic must be the U.S. Constitution —specifically, the Second Amendment, which is sometimes claimed to limit possible policy alternatives. After examining these arguments, the chapter turns to U.S. public opinion concerning various policy options. Finally, the chapter describes the empirical literature on the evaluation of past firearm regulations. The Second Amendment Debates about gun policy typically include a discussion of the Second Amendment of the U.S. Constitution. The large majority of Americans (60 to 90 percent) believe that the U.S. Constitution provides for the right of private gun ownership, and the majority of gun owners (55 percent) believe that stricter gun measures would violate that perceived right (Chafee 1992; Blendon, Young, and Hemenway 1996). The media perpetuates these views (Byck 1998), but they are incorrect. Many of the members of the Continental Congress, which adopted the 152 policy background 153 Articles of Confederation in 1777, distrusted centralized government. The Articles specified that every state “shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred” to be ready for action, but did not include a proviso on any private right to bear arms (DeConde 2001). Similarly, the Second Amendment of the U.S. Constitution focused on the militia. The amendment reads, in its entirety, “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.” When the National Rifle Association (NRA) placed the words of the Second Amendment near the front door of its former national headquarters, it omitted the first thirteen words. When the U.S. Constitution was adopted, each state had its own militia, an organized military force comprised of ordinary citizens serving as part-time soldiers. The purpose of the militia was to secure each state against threats from without (e.g., invasions) and threats from within (e.g., riots). It has been claimed that the Second Amendment provides individual Americans with a constitutional right to have firearms for personal selfdefense ; some people also argue that this right is crucial to allow individual Americans to rise up to combat government tyranny. While the intellectual and historical records are not completely clear, they seem to provide little support for these positions. Like the Tenth Amendment, the Second Amendment appears to focus on the relationship between the federal government and state governments. Neither the natural rights tradition of John Locke nor the English constitutional tradition of William Blackstone provides much evidence for an individual rather than a collective interpretation of the Second Amendment. Locke emphasized the importance of the social contract: when an individual enters civil society, “he gives up” his power “of doing whatsoever he thought fit for the preservation of himself.” The very notion of political society is that rights should be determined and disputes resolved not through private judgment of each individual backed by private force but rather by the public judgment of the community. By contrast, the unrestrained use of force according to one’s own private judgment leads to a war of all against all, which actually undermines rather than furthers the goal of self-preservation (Heyman 2000, 243). As for resisting tyranny, Locke focused on the right of revolution, which he said belongs to the community, or the people as a whole. Blackstone also rejected a view that would “allow to every individual the right of determining [when resistance is appropriate] and of employing private force to resist even private oppression.” Such a doctrine is “productive of anarchy, and in consequence equally fatal to civil liberty as tyranny itself” (Heyman 2000, 258). Some historians, but not all (Malcolm 1994), also believe that English history provides little support for the individual right to own weapons. The...