Vol. 34 No. 03 (May 2024) pp. 18-22THE GUN DILEMMA: HOW HISTORY IS AGAINST EXPANDED GUN RIGHTS, Robert J. Spitzer. New York, NY: Oxford University Press, 2022. 200 pp. Hardcover. $32.99. ISBN: 978-0197643747.
Reviewed by Bruce Peabody, Department of Social Sciences and History, Fairleigh Dickinson University. Email: bpeabody@fdu.edu.
Robert Spitzer’s meticulously researched and engaging new book argues that many of today’s judges and Second Amendment activists have weaponized history. They deploy crabbed and incomplete accounts of our past to make the case that most gun laws depart from our civil liberties traditions, and are the innovative “product of modern American society” (p. 76). In six pithy chapters, Spitzer shows that the “opposite is true” (p. 76). From colonial times to the present, federal and state gun regulations emerged whenever new weapons or technology posed threats to public safety. Legislation restricting firearms is, therefore, popular, recurring, deeply rooted, and “as old as the country” (p. 19).
In Chapter One, the author makes the preliminary case that American history is replete with ongoing and substantively-varied gun regulations. In recent years, however, a new generation of ideologically-driven lawyers and judges have ignored this record and warped history to expand gun rights. Here Spitzer distinguishes “Gun Rights 1.0” (relatively modest efforts to establish an “individual right of citizens to own handguns for personal self-protection in the home”) from today’s “Gun Rights 2.0” (based on aggressive readings of the Second Amendment that challenge a wide range of existing gun laws and upset an established “equilibrium” between gun rights and safety)(pp. 2-3).
At the heart of Gun Rights 2.0 is the constitutional theory of originalism, which aspires to filter out judges’ “contemporary values and preferences” by identifying what the constitutional text meant at the time it was written. In the context of the Second Amendment, this entails “turning the clock back to an imaginary past” in which there were few legal gun restrictions and the individual right to bear arms was purportedly placed in an “exalted position” (p. 22). Spitzer identifies a number of “terminal flaws” (p. 22) associated with originalism, especially its reliance on “bad” history to cloak an ideological and “ends oriented” conservative jurisprudence (p. 20). Contrary to the claims of its adherents, originalism does not discipline its practitioners or constrain their activism, that is, their willingness to overturn existing legislation and disrupt established case law.
So far, these points will be mostly familiar to students of constitutional law and history. But the rest of The Gun Dilemma digs deeper, especially with respect to Spitzer’s critique of the rise of Gun Rights 2.0 and its extreme views about firearms. The next four chapters of the book show that our history is thick with gun regulations that bear on contemporary legal and policy debates in such areas as restricting assault weapons and the display of firearms at public gatherings. In presenting this more inclusive narrative, Spitzer hopes to expose how originalist cherry picking leaves us with distorted history, incoherent constitutional law, and dangerous public policy.
In Chapter Two, the author turns our attention to laws governing high capacity magazines and assault weapons, that is, those firearms originally “derived from military weapons” (p. 27). He advances one of the book’s throughlines—the spread of new weapons triggered new legislation to control their dangers. Thus, the proliferation of “available, affordable, feasible multi-shot firearm[s]” after the Civil War created a wave of regulation, especially in the 1920s and 1930s when Prohibition (1920-1933) and the rise of organized crime sparked pervasive fears about gun violence (p. 31). A majority of states in this period “enacted laws to bar fully automatic weapons” and restrict semi-automatic weapons and ammunition feeding devices (p. 32). In 1934, Congress passed the National Firearms Act restricting weapons like sawed-off shotguns, the Tommy gun (which could hold as many as a hundred bullets), and other, fully automatic weapons associated with gangsters and criminal violence. In the 1990s, several states and the federal government put new limits on assault weapons, with Congress passing the Federal Assault Weapons Ban prohibiting the manufacture of some semi-automatic guns and large capacity magazines.
In Chapter Three, Spitzer reviews the history of silencers or noise suppressors, first patented in 1908. The next year, the state of Maine outlawed the sale and possession of “any device for deadening the sound of explosion” and other states quickly followed. By 1936, a total of fifteen states regulated silencers, as did the National Firearms Act. In addition to his absorbing historical narrative, Spitzer discusses contemporary policy debates about silencers, noting that the oft-repeated claim that these tools protect gun users’ hearing does not obviously trump the “de facto safety” feature of loud reports alerting potential firearm victims (p. 66). The author also makes the case that proposals to deregulate silencers are driven more by the prospect of “enhanced revenues for manufacturers” rather than public safety (p. 69).
Chapter Four exposes the deep roots of display laws (general restrictions on presenting firearms in public) and brandishing laws (that punish those who present weapons in a threatening manner). Spitzer connects these regulations to more recent debates about the presence of guns in polling locations and in demonstrations, such as those associated with COVID-19 restrictions and other political and social protests. Overall, from the late 1600s to the 1930s “thirty-six states and territories enacted laws that penalized weapons brandishing or display” (p. 78).
Chapter Five examines the so-called gun rights’ “sanctuary movement,” whereby localities across the country have resisted federal and state gun laws on the grounds that the Second Amendment supersedes these authorities. Since 2018, municipalities have enacted over a thousand measures claiming to impose Second Amendment barriers against federal and state red flag laws, background checks, and other gun safety measures. Spitzer chronicles a particularly dramatic episode involving Missouri Governor Mike Parson, who signed a law in 2021 that “bars police in the state from enforcing federal gun laws” (p. 113). While noting that these efforts are reminiscent of the “tendentious” doctrine of nullification (under which states claim an independent authority to set aside federal laws which they find unconstitutional), he also makes the case that they are significant for symbolic reasons, and in fomenting resistance and even “armed confrontations” between local officials and state and federal agents (p. 114).
In his conclusion (Chapter Six), Spitzer reviews the Supreme Court’s New York State Rifle & Pistol Association v. Bruen decision which found that New York state’s gun licensing provisions were unduly restrictive of the general public’s right to “bear arms in public for self-defense” (Bruen 2022, p. 62). Bruen’s announcement of a new judicial test (law-abiding citizens have a presumptive right to bear arms unless the state can point to a specific tradition of regulation) dovetails with The Gun Dilemma’s major themes: a new group of conservatives on the Court have embraced an expansive reading of the Second Amendment dependent upon a narrow reading of U.S. history. Spitzer concludes that the sweep of American history over several centuries establishes the “viability, practicality, and sensibility” of both established and emergent gun regulations (p. 119).
Robert Spitzer has published extensively on constitutional law and gun control, and his familiarity with and erudition on these topics comes through on every page. His arguments are nuanced but also easy to access, serious-minded but salted with dry humor. His explanations of key terms (such as gun magazines and what constitutes a “mass shooting”) makes this work a valuable handbook to students and teachers alike. Beyond an accessible style, this book is broadly appealing because it is pragmatic and even-handed. Spitzer does not present himself as a firearms abolitionist, but believes that our gun control debates should not take place in a “zero-sum world” (p. 19) where gun rights are incompatible with regulations and vice versa. He praises the majority of lower courts who have mostly found a “reasonable balance between gun laws and gun rights” (p. 19).
While supportive of greater gun regulation, and opposed to robust readings of the Second Amendment, he takes his adversaries seriously and tries to meet them where they are—countering history with history, anecdote with story, and empirical claims with data. Thus, he devotes several sympathetic pages to the views and arguments of two New York state officials involved in the sanctuary movement, before respectfully criticizing their positions (p. 110). In pushing back on the claim that assault weapons are needed for self-defense in the home, he presents evidence that few bullets are actually fired during home invasions (p. 48).
These observations point to another reason why The Gun Dilemma will be valuable to a wide range of readers: its methodological toolbox is creative, varied, and comprehensive. Beyond his thorough historical exegesis, the author examines the case law and ideology associated with individual federal judges, various data on gun safety, public opinion surveys, social science research (on such topics as the incidence of violence following the brandishing of firearms at rallies), and medical reports about the effects of high velocity rounds on the human body. He fires an AR-15 with an attached silencer at a police shooting range to evaluate, personally, the effects of the device.
In short, the book offers a treasure trove of arguments of potential use to attorneys, policy advocates, students, citizens, and the police (this last group might be interested in FBI data showing that police fatalities are disproportionately driven by assault weapons). Most importantly, The Gun Dilemma offers a sustained corrective to the selective and sometimes inaccurate historical narratives offered in originalist judicial opinions interpreting and applying the Second Amendment.
Notwithstanding its sustained historical and rhetorical punch, readers may come away from this book with a few questions or concerns. In naming his work The Gun Dilemma, Spitzer seems to be gesturing to a tension between, on the one hand, conservative judges and “extremist grassroots” groups that support expansive interpretation of the Second Amendment and, on the other hand, a wider public that largely “abhors gun violence” and supports greater regulation (p. 124).
But it’s not obvious why these developments pose an imperfect choice or “dilemma.” Why couldn’t progressives or even moderates take up Spitzer’s invitation and explicitly advocate for a judicial philosophy that better reflects our longstanding gun control history? Perhaps the dilemma is that such a campaign might further politicize a judiciary that has seen its legitimacy battered in the 21st century. Alternatively, one might be concerned that emphasizing historical interpretations of the Second Amendment will just reinforce the Supreme Court’s “single-minded obsession with Originalism” (p. 15) as a modality of constitutional interpretation. Whatever the case, readers might want a more fully articulated map of the hard political and legal choices that we face in light of the rise of Gun Rights 2.0.
A related, second question concerns the intended audience of this work. Is The Gun Dilemma directed at judges, and, if so, which ones? Today, originalism focuses on the “public meaning” of constitutional text when it was adopted (in, say, 1788 for the original Constitution, and 1791 for the Bill of Rights). In Bruen, the majority further explained that it would evaluate laws on the basis of whether they were “consistent with this Nation’s historical tradition of firearm regulation” (p. 25). But Justice Thomas’s opinion also concluded that “not all history is created equal,” (p. 25) and breezily dismissed “late-19th century” (p. 58) and “20th-century evidence” as irrelevant to the Court’s historical analysis of the Second Amendment “when it contradicts earlier evidence” (p. 58, note 28). Thus, the jurist who is arguably the leading advocate of an expansive reading of the Second Amendment would likely be indifferent to most of Spitzer’s recovered history of firearms regulation and his otherwise compelling argument that the absence of gun regulations in early American history reflects this era’s limited technology and limited fears about contemporary firearms, as opposed to a consensus that regulation was inappropriate.
Perhaps, then, the book is trained at more progressive judges or lawmakers, providing them with a template for how to use history in defense of greater firearms regulation. But such a tack may be distracting and even self-defeating in contracting our constitutional imagination and policy conversations. As the author himself concedes, history is not “the sole criterion for judging the utility, necessity, or legality of contemporary gun laws” (p. 35).
Spitzer is a conscientious, eloquent, and gifted scholar and historian, who insists that it is “essential that we get our gun past right” (p. 22). But even sympathetic readers of The Gun Dilemma may wish for a bit more analysis from this keen-eyed and sure-footed guide regarding how we can make the turn from presenting a more sophisticated history of gun regulation to forging more responsible public policy and Second Amendment jurisprudence.
CASES:
New York State Rifle & Pistol Association v. Bruen, 597 US _ (2022).
© Copyright 2024 by author, Bruce Peabody.
