Gun control and the Constitution
The history of the Second Amendment of the United States Constitution, which guarantees the right of US citizens to “bear arms” is one of the most complex and controversial of all the developments within constitutional law that have occurred in the last 230 years. In this book Cottrol attempts to bring together most of the major cases on the Second Amendment from the Supreme Court, and also includes various articles on their meaning.
One of the most valuable aspects of this book is the fact that Cottrol tackles his subject neither from the perspective of a supporter of the Amendment nor from a gun control advocate. This balance is a rare achievement in a treatment of an aspect of the law that often inspires resonantly partisan scholarship that fails to offer the true complexity and difficulties involved with balancing the various parties involved with the Second Amendment. The book is divided into two main sections. The first gives copies of the two leading Supreme Court cases, Presser v. Illinois and United States v.
Miller, as well as a state case that is now more than a century old but still provides precedence: Aymette v. State of Tennessee. Unlike many other books, Cottrol also provides the full texts of leading laws regarding gun control, such as the Brady Act and the 1986 Farm Owners Protection Act. These enable the reader to compare court cases, with the points of law that are raised within them, as well as the constitutional issues, with the actual laws that are now in place. Over all of them is the simple but actually over-riding language of the Second Amendment.
In the second part of the book, Cottrol provides ten law and history scholarly articles which offer a strictly balanced view of the spectrum of views on the Second Amendment. Four out of the ten articles are actually challenging to the idea that the Second Amendment is sacrosanct, while the rest are either historical or pro-Second Amendment in nature. Perhaps the best section of the book is actually the Introduction, an extended contemplation of the various issues involved with gun control from the Revolutionary War on.
Cottrol argues that the founding fathers saw that an armed citizenry was a necessity for the defence of political liberty that had only recently been won. However, the idea that America was (and still is) somehow intrinsically different from other countries in its attitude towards gun is merely stated rather than proven. Thus Cottrol argues that “from the beginning, conditions in colonial America created a very different attitude towards arms and the people” (p. 13).
But most European countries had a heavily armed populace in the Eighteenth and Nineteenth centuries compared to today, but have succeeded in developing into modern countries that do not have a generally armed citizenry, with associated much lower crime/murder rates. Cottrol offers an interesting view on a part of the gun control debate that rarely received much attention from either side. That is the fact that during the Nineteenth Century fears of insurrection from slaves (and then freed blacks) and Indians meant that there were outright bans on these groups possessing arms.
So the Second Amendment has already been suspended in the past for what are now regarded as spurious reasons: should not similar suspensions be considered in the present day? Cottrol does not explicitly state this, but it is implicit within his own scholarship that he briefly outlines within the Introduction to his book. In one of the most important aspects of the book, Cottrol argues that the “collective rights” argument over whether the Second Amendment merely guarantees the right to bear arms for a small, trained militia (i. e. an army? ) is moot.
He says that if both pro and anti- gun control proponents accepted that there is a right to bear arms guaranteed in the Constitution then a genuinely productive conversation and dialogue could occur within society as to sensible limits to access to that right. Arguing theoretically over whether the “right” exists or not is a rather futile exercise in sophistry. The more important argument is how the right should be instituted within society: what type of arms should be allowed under the constitution, what limits as to age, criminal history etc, should be placed?
The right to bear arms, Cottrol suggests correctly, does not imply the right to bear all arms. For example, fully automatic machine guns have been illegal for ordinary citizens in the United States since the 1930’s. A person cannot but a bazooka, tank or fighter plane and claim that the Second Amendment protects his right to purchase and use it. So the argument, Cottrol suggests, should be on the types of arms that are allowed, not whether they are to be allowed at all. Here Cottrol’s suggestion that Federalist issues be more closely considered is very interesting.
He correctly asserts that about 43 states already have laws and/or constitutions that touch in some way or another upon the unfettered right to bear arms. This area of law, full of often contradictory of at least contrasting law, has yet to receive much scholarly attention. Cottrol implies that far more gun control may actually be occurring than those on the national level, arguing over theoretical constitutional matters, seem to understand. State matters may at times conflict with Federal authority, especially considering the existence of state militias versus the federally controlled national guard.
Who actually controls national guard units became of great importance during the civil rights movement, when Southern states started to deny the validity of federal laws regarding desegregation. Presidents Eisenhower, Kennedy and Johnson all used federal troops in one way or another to help enforce federal court decisions. Cottrol’s book suggests that the strict constitutional arguments regarding the Second Amendment are in fact a fulcrum for much larger political, social and cultural dilemmas within society.
The scholarly articles which support the idea of gun control, and thus the diminishing of Second Amendment rights , often seem to rely upon essentially pragmatic arguments: gun control would lessen the amount and seriousness of violent crime. They imply that a tragic irony is now occurring in which the constitutional amendment designed to protect the country, and to make the citizens safer, have actually made the United States of America one of the most dangerous advanced industrialized countries in the world.
The issue of guns and the Second Amendment seems to be rather tangential to the real problems according to Cottrol. He briefly mentions the country that is the most difficult for gun control advocates to explain: Switzerland. The Swiss keep about 650,000 assault weapons in their private homes, making them by far the most armed/per capita population in the world. Yet Switzerland has virtually no violent crime. The country also has virtually no poor people and few if any of the social problems that seem to lead to much of the gun violence in the United States.
While Cottrol’s one volume edition of what was previously a large three-volume work is by necessity limited in length, it is a pity that these wider issues surrounding the Second Amendment could not be considered. For example, the Brady Law, named after the Reagan official who was paralyzed by the man who nearly assassinated President Reagan, was designed to stop the type of attack which had occurred there, but in fact does not really begin to tackle the problem.
A person who wants to assassinate a President (or to shoot his wife) will find access to deadly weapons in any country in the world, whether it has no gun laws or a plentitude of them. The psychological problems associated with spree killers such as the Columbine killers cannot be tackled by gun control laws, nor can the economic hardship and desperation that seems to lead to much of the black-on-black violence that accounts for a majority of murders. If Cottrol were to write another book on the wider implications of gun control these kinds of matters could be considered.
Yet the book might still have a constitutional basis as the US Constitution was not a theoretical document written as some kind of intellectual exercise but rather as a living framework on which a democratic country could grow. The argument over whether the US Constitution should be regarded as a “living document” that should be adapted to current circumstances and even changed if necessary, or whether its power lies within a strictly “originalist” interpretation is at the heart of political debate today.
One of the reasons that many of the public have an opinion on the constitutional arguments surround the Second Amendment is that they are, supposedly, simple to explain. Either the Constitution guarantees the right to bear arms or it does not. Cottrol suggests that this is in fact an irrelevant dichotomy: it is how that right is controlled that is at the heart of the matter. In conclusion, Gun Control and the Constitution: Sources and Explanations of the Second Amendment is an excellent book that raises a number of different perspectives on this important part of the US Constitution.
Cottrol’s compendium of cases, opinion and scholarship suggests that a balanced approach to the various arguments should be adopted so that both sides can speak to one another rather than at or passed one another. ____________________________________ Works Cited Cottrol, Robert. Gun Control and the Constitution: Sources and Explanations of the Second Amendment. Routledge, New York: 1994. .
