In Squaring Off, Zócalo invites authors into the public square to answer five probing questions about the essence of their books. For this round, we pose questions to Adam Winkler, author of Gunfight: The Battle Over the Right to Bear Arms in America.
America has been involved in a complex political battle over gun control for decades. In 2008, the landmark case District of Columbia v. Heller invalidated a law banning handguns in the nation’s capitol. Adam Winkler uses that case to argue that we’ve always balanced gun rights with gun control-and that there’s hope for the gun debate in America.
1) District of Columbia v. Heller (2008) was the first Supreme Court case in United States history to decide whether the Second Amendment protects an individual right to keep and bear arms for self-defense. Why do you think it took so long for America’s highest court to weigh in on the Second Amendment?
Although the Supreme Court had mentioned the Second Amendment in passing through the years, the Justices had, remarkably enough, never squarely ruled on the meaning of the amendment. Sure, people had challenged gun laws in court, but they were usually criminals desperately seeking to overturn convictions. (U.S. v. Crackhead was not a promising vehicle for interpreting the Second Amendment.) Over the past thirty years, however, a social movement to protect gun rights had formed in the wake of federal and state gun control laws adopted in the 1960s.
In 2001, the Bush administration declared that the Second Amendment protected an individual right to own guns that was not limited, as most courts had held, to service in the militia. This inspired three entrepreneurial libertarian lawyers to bring the Heller lawsuit. They recruited ideal, law-abiding plaintiffs and challenged the most restrictive gun law in the nation, and their case was welcomed by an increasingly conservative Supreme Court.
2) And one of those three entrepreneurial libertarian lawyers who brought that case was the lead counsel Alan Gura. How did a lawyer like Gura, who was practicing out of a small, one-person office in Virginia at the time-and who had never argued a case before the U.S. Supreme Court-go up against a constitutional law expert like Walter E. Dellinger with twenty Supreme Court cases under his belt, and win?
Clark Neily, who came up with the idea of a Second Amendment lawsuit at a happy hour, and Bob Levy, who financed the case, originally considered hiring Steve Halbrook, one of the most experienced gun lawyers in the country. But Halbrook was too expensive. So they turned to Alan Gura, who, according to Levy, was willing to work for “subsistence wages.”
Four years later, when the Supreme Court agreed to hear the case, Levy’s friends in the gun community pressured him to replace Gura with Ted Olson, Ken Starr, or another Supreme Court expert. Levy, however, had promised Gura that this case would be his “baby.”
Meanwhile, the legal team for the District of Columbia, which was defending the city’s ban on handguns, was in disarray. The original lawyer brought in to argue the case was fired just days before the city’s brief was due. Walter Dellinger was a last- minute replacement.
Finally, Gura had help. Justice Antonin Scalia carefully guided Gura, from the bench, through the barrage of questions the other justices threw at him at oral argument. Scalia apparently was unwilling to leave the fate of the Second Amendment to a Supreme Court rookie.
3) So why was the decision of this particular case so significant to gun policy?
In the two years since the case was decided, there have been over two hundred federal court decisions on the constitutionality of various gun laws. Most laws have been upheld, but no one knows how expansively the right to bear arms will be construed in the future.
In the long run, Heller could have a positive effect on the gun debate because it takes civilian disarmament off the table. The threat of disarmament has been one of the main reasons why the gun debate has become so divisive. If liberals embrace the decision rather than seek to overturn it, then perhaps many gun owners won’t see each and every gun control law as an attack on them and will support better, more effective laws to keep guns out of the hands of criminals.
4) But it’s not just criminals we should be worried about. It’s the mom who accidentally shoots her daughter with a revolver she mistakes for a cigarette lighter. What’s so bad about civilian disarmament if it could prevent something like that from happening?
A pot of gold at the end of the rainbow will solve your financial problems, but there’s a hitch: there’s no pot of gold at the end of the rainbow. Disarmament is a political nonstarter. There are just too many guns and too many people who’d never give them up.
Even more important, however, is the fact that the right to bear arms is one of our oldest, most established rights-regardless of the Second Amendment. Forty-three states guarantee the right in their own state constitutions. The Framers of the Fourteenth Amendment to the Constitution intended to protect the freedmen’s right to have guns for self-defense. Yet we must also recognize that the right to bear arms has always lived side-by-side with laws regulating guns to promote public safety. For example, the frontier towns of the Wild West, the heart of the American gun culture, had the most restrictive gun laws in the nation, and gun violence there was remarkably rare.
5) Wait, so if you say our right to bear arms is one of our oldest, most established rights, regardless of the Second Amendment, why is this highly ambiguous Amendment the foundation of all gun-related laws and discussions?
So much of what people commonly believe about guns and our gun culture is wrong. Gun control is often thought to be a modern, twentieth-century invention when in fact guns have been regulated for hundreds of years. The NRA, known as a die-hard, no-compromise opponent of gun control, used to draft and promote restrictive gun laws the organization now tries to repeal.
One of the most interesting things I discovered was how gun laws have been profoundly shaped by race. America’s earliest gun control laws, for example, banned blacks from possessing guns. The Ku Klux Klan began, in some ways, as a gun control group. They rode at night to confiscate the guns the freedmen had obtained for the first time during the Civil War. And in the 1960s, conservatives like Ronald Reagan supported a wave of gun control laws targeting the Black Panthers and other black urban radicals. That these laws helped spur the rise of the modern gun rights movement, which is famous for being white, rural, and politically conservative, is just one of many ironies Gunfight reveals about America’s complicated history of guns.
Buy the book: Skylight Books, Powell’s, Amazon
*Photo courtesy of esc.ape(d).