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HOUSTON LAW REVIEW

ADDRESS

VALUES, VIOLENCE, AND THE SECOND AMENDMENT: AMERICAN CHARACTER, CONSTITUTIONALISM, AND CRIME

Robert Weisberg*

TABLE OF CONTENTS

I. INTRODUCTION ...... 2

II. “EXCEPTIONALISM” ...... 9

III. NEW SECOND AMENDMENT ISSUES ...... 11

IV. VIOLENCE HISTORY ...... 17

V. EXPLANATORY THEMES ABOUT AMERICAN VIOLENCE ...... 21 A. “Cultural Explanations” ...... 21 1. The Frontier...... 21 2. Vigilante America ...... 23 3. The South...... 28 4. Race...... 34 B. The Anti-Cultural Explanation: Gun Prevalence...... 35

* Edwin E. Huddlenson, Jr., Professor of Law, Stanford University. J.D. 1979, Stanford University; Ph.D. 1971, Harvard University; A.M. 1967, Harvard University; B.A. 1966, City College of New York.

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C. The Super-Cultural Explanation: Political Equilibrium...... 36

VI. THE CHALLENGES OF CONSISTENCY...... 38 A. Pro-Gun Consistency...... 38 B. Anti-Gun Consistency ...... 44

VII. CONCLUDING NOTE ...... 50

I. INTRODUCTION Thirteen years ago Sanford Levinson published his stimulating and vexing article, The Embarrassing Second Amendment.1 His thesis was that liberal readers of the Constitution risked hypocrisy in knee-jerkedly accepting and repeating the traditional, narrow view of the Second Amendment.2 This view holds that the amendment’s infamous dependent clause limits its reach to ensuring some role or resources for state militias,3 rather than to ensuring any individual right to bear firearms.4 Thus, the Second Amendment

1. Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637 (1989). 2. “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.” U.S. CONST. amend. II. 3. The list of sources for a militia-focused or collective right reading is endless, but key proponents are: Carl T. Bogus, The History and Politics of Second Amendment Scholarship: A Primer, 76 CHI.-KENT L. REV. 3–4 (2000) (arguing that the Second Amendment collective right model is the quintessential example of settled constitutional law); Michael C. Dorf, What Does the Second Amendment Mean Today?, 76 CHI.-KENT L. REV. 291, 292, 294 (2000) (finding that rejection of individual right scholars’ claims is justified by using standard constitutional interpretation techniques); and Garry Wills, To Keep and Bear Arms, THE N.Y. REV. OF BOOKS, Sept. 21, 1995, at 62–63 (determining that, when analysis is restricted to the precise terms of the Second Amendment, the amendment appears to deal only with military matters). The Supreme Court appears to have rejected the individual right reading. United States v. Miller, 307 U.S. 174, 178 (1939) (finding that possession of a shotgun having a barrel of less than eighteen inches in length had no reasonable relationship to the preservation of a militia). But because Miller involved a sawed-off shotgun that was conducive only to criminal use, one can read it as either avoiding the individual rights issue or impliedly accepting some version of the individual right reading. In United States v. Emerson, the Fifth Circuit read Miller as confirming an individual right for all men who are eligible to join in common defense, that is, all physically able males, to own guns of the sort appropriate to militia use. 270 F.3d 203, 221–27 (5th Cir. 2001). Emerson also delineates two different versions of the collective right reading. See generally id. One, the “states’ right” or “collective right” model, says that the Second Amendment only serves to grant to a state the right or power to arm its militia. Id. at 218. The other, the “sophisticated collective right” model, grants the right to own guns only to members of organized state militias, and only for the purposes of carrying out their militia duties. Id. at 219. 4. See, e.g., Randy E. Barnett & Don B. Kates, Jr., Under Fire: The New Consensus on the Second Amendment, 45 EMORY L.J. 1139, 1141 (1996) (arguing that recent research WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 3 poses an anomalous quadrilemma for anti-gun liberals: it must be either a minor functional technicality about federalism and regulation;5 a wholly moot constitutional prop for a military entity that barely still exists;6 an illegitimately disrespected part of the sacred panoply of rights enacted in 1791;7 or—the ultimate challenge for liberals—a wholly illiberal or retrograde provision of the Bill of Rights.8 The debate over the Second Amendment may prove of little practical consequence, because the combination of a graduated mid-level of scrutiny, some degree of respect for the history of gun regulation, and the nonenforceability of extreme bans makes the practical range of conceivable judicial resolutions rather narrow.9 But the debate remains as alive as ever. In part this is because it is such a fine thought experiment in constitutional interpretation and a laboratory test for all the usual arguments for, against, or about originalism. But another reason is that the Second Amendment poses a stern challenge to liberal constitutional interpreters to explain why such an anomaly is in the Constitution, or to justify treating it as moot, or to either denounce or finesse its exclusion from that sacred panoply. My general goal here is to further explore the intellectual embarrassments associated with treatment of guns and law in supports a broad individual right view of the Second Amendment). For an enumeration of articles adopting the individual right view, or the “Standard Model,” as its proponents call it, see David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359, 1362 n.1 (1998). 5. Refer to notes 59–62, infra, and accompanying text; H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 CHI.-KENT L. REV. 403, 412–13 (2000). 6. Uviller & Merkel, supra note 5, at 553–61 (arguing that the Founders’ concept of a militia has failed, making the Second Amendment an empty vessel). 7. See Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 226 (1983) (stating that examination of contemporary materials leads to the conclusion that the Founding Fathers saw owning guns as a fundamental right). An intermediate possibility is to see the Second Amendment as truly a right of states in some substantive way, but conservatives who favor the individual right interpretation have decried that model as logically absurd. E.g., Glenn Harlan Reynolds & Don B. Kates, Jr., The Second Amendment and States’ Rights: A Thought Experiment, 36 WM. & MARY L. REV. 1737, 1765 (1995) (concluding that the states’ right theory is without merit when the consequences are considered). 8. This challenge is only superficially similar to that posed by the view of the First Amendment that would permit fascistic or racist speech. In that area, liberals have little trouble affirming the First Amendment right to speak evil speech—they can finesse this issue in solemn, self-congratulatory moral tones. Nor does this challenge arise in case of death penalty or abortion, in which most people happily, if disingenuously, find perfect harmony between their political and constitutional views. 9. See United States v. Emerson, 270 F.3d 203, 232–33, 260 (5th Cir. 2001) (approving the individual right model over two different versions of the collective right model, but nevertheless upholding a federal law barring gun ownership by people subject to state court domestic restraining orders). WEISBERGC11.DOC 3/28/2002 12:45 PM

4 HOUSTON LAW REVIEW [39:1 the United States, but I take on a diversity (and an admittedly more diffuse range) of these embarrassments. First, a personal note. I myself have been a non-advocate observer of Second Amendment debates in recent years. I admit, however, to having been tempted to join the list of liberal academics who, in the wake of the Levinson article, conceded that philosophical consistency might lead one to accept, or at least seriously consider, the legitimacy of the individual right interpretation.10 In my tentative and ultimately unpublished willingness to entertain this position, I had a more general goal in mind. I wanted to challenge the kind of constitutional sentimentalism whereby we strive mightily to ensure that our views on the constitutionality of legislative policy are nicely harmonious with our views of the wisdom of legislative policy. Of course, those conservatives who have always favored the individual right reading face their own “embarrassment” in having to assume a very liberal stance on other constitutional rights—unless they are very consistent libertarians. But the conservative side has finessed or avoided this problem better than its opponents and, in any event, pro-gun conservatives are often willing to invoke a strong view of at least Fourth Amendment rights11 because guns, except for drugs, are the most common objects or outcomes of police searches. And so the liberals’ problems are more evident. Of those “embarrassed” liberals who have resisted constitutional sentimentalism, some may be moved by a concern for philosophical consistency; that is, they recognize that, the infamous dependent clause aside, they are bound to accept the general idea that the Framers intended individuals to retain rights against the government. Others may find it dispiriting to help give new life to the individual right reading but may feel

10. The most prominent liberal academics who have considered the individual right interpretation’s legitimacy after Levinson’s article include, for example: AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 46–59 (1998) [hereinafter AMAR, CREATION AND RECONSTRUCTION]; LEONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS 133–49 (1999); 1 LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 902–03 (3d ed. 2000); William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236, 1237–38 (1994); Akhil Read Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1164 (1991) [hereinafter Amar, The Bill of Rights as a Constitution]. For a full list of the legal academics who have written in some degree of support for the individual right interpretation, see Barnett & Kates, supra note 4, at 1143 n.12, 1144 n.13. 11. Don B. Kates, Jr., The Second Amendment and the Ideology of Self-Protection, in THE GREAT AMERICAN GUN DEBATE 271, 282–87 (Don B. Kates, Jr. & Gary Kleck eds., 1997). Pro-gun conservatives tend to rhetorically invoke the Fourth Amendment as part of their argument against gun regulation, but manage to avoid ever approving the exclusionary rule in particular cases. WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 5 reassured by a bit of legal equivocation: they figure that this reading can accommodate a fair amount of governmental control of guns, once we make some nice adjustments in levels of scrutiny for judicial review. On the other hand, some liberals have been tempted to make a broader reconciliation of views—these are the liberals who, in the last couple of decades of American scholarship, have embraced that new twist on liberalism called Civic Republicanism.12 Under this view, it is possible (if tricky) to embrace, in broad theory at least, a right to gun ownership as an aspect of a kind of noble civic role (with the possibility of accepting heavy gun regulation as an entailment of changed social conditions). Civic Republicanism views good citizens as active, self-governing figures in their private domains and thereby, at least implicitly, leaders in public: they are not just rights-hoarding private actors protecting individual autonomy from government, but also participants in self-government as well as government. Their neoclassical progenitors drew on a variety of their natural and acquired resources in creating a civic culture that stood between corrupt royalism and rank-hierarchy and looked not only to land ownership, but also possibly to gun ownership as both benignly leveling forces and tools of self- governance.13 I will return to this later. As I observed this phase of Second Amendment commentary, I considered a less Panglossian form of consistency, the last of the four alternatives mentioned above. My liberal sentiment was that gun ownership was indeed a pretty bad thing psychologically, morally, socially, and politically. But I found it perfectly plausible that the Framers, who were, of course, willing to effectively embed

12. For a brief summary of this phase of recent scholarship, see GUYORA BINDER & ROBERT WEISBERG, LITERARY CRITICISMS OF LAW 359–65 (2000) (discussing several authors’ positions on how to reconcile this new school of thought with traditional liberalism). For the most important modern scholarly account, see J.G.A. POCOCK, THE MACHIAVELLIAN MOMENT 369, 376–87, 506–09 (1975). For an argument that the Civic Republican interpretation of the Second Amendment, though historically sound, does not entail an individual right, see Uviller & Merkel, supra note 5, at 440–55. 13. See Levinson, supra note 1, at 646–51 (tracing the historical basis for the Civic Republicanism view). The first scholar to explicitly link gun ownership to the principles of Civic Republicanism was Robert E. Shalhope. See Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. AM. HIST. 599, 601–07 (1982); see also Robert E. Shalhope, To Keep and Bear Arms in the Early Republic, 16 CONST. COMMENT 269, 269– 72 (1999); David C. Williams, The Constitutional Right to “Conservative” Revolution, 32 HARV. C.R.–C.L. L. REV. 413, 416–17 (1997); David C. Williams, The Militia Movement and Second Amendment Revolution: Conjuring with the People, 81 CORNELL L. REV. 879, 892–93 (1996) [hereinafter Williams, Militia Movement]; David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 YALE L.J. 551, 551–52 (1991). WEISBERGC11.DOC 3/28/2002 12:45 PM

6 HOUSTON LAW REVIEW [39:1 the right of slave ownership into the Constitution,14 would fully embrace a notion of individualist autonomy that logically included owning guns.15 So I contemplated, at least privately, the following notions: (a) that an individual right of gun ownership was indeed part of the Constitution, and (b) that this constitutional fact was tragic and potentially disastrous. Of course, this very despairing form of liberal consistency about the Second Amendment and American violence also suggests that any effort by liberals to give content to the Civic Republican notion of virtue risks implicating political values that liberals would hardly find virtuous.16 My general goal now is to see what happens if we avoid constitutional sentimentalism and hold the various political and scholarly interest groups to some greater test of consistency. And I mean several things about consistency. I will experiment to see what happens not only if we expect Second Amendment arguments to be consistent with constitutional ideologies generally, but also what happens when both sides in the gun controversy are forced to reconcile their views of guns and the Constitution with some broader conception of American legal and civic values. I will argue that another factor that has only been implicit in recent Second Amendment debates should enter the consistency evaluation: the virtually undeniable historical fact that we are an anomalously violent country. Moreover, and by happy coincidence, the debate over the nature and causes of American homicide or violence exceptionalism has just taken on new salience, at least for academics, because of the remarkable new research by Franklin Zimring and Gordon Hawkins published in their book Crime is Not the Problem,17 which I will discuss further below. Of course, there is no rule of jurisprudence, politics, or philosophy that requires any participant in the gun debate to achieve consistency in any of these dimensions. My goal is to examine both how much consistency does get achieved and what intellectual consequences this consistency might entail, as a way of better understanding how American law and constitutional and cultural values interact. Of course, I admit to the side agenda of suggesting that consistency is a good thing, and so I hope to challenge some to reconsider the compromises they may

14. See U.S. CONST. art. I, § 2, cl. 3; U.S. CONST. art. I, § 9, cl. 1; U.S. CONST. art. IV, § 2, cl. 3. 15. See Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. DAVIS L. REV. 309, 371, 374–75 (1998). 16. See BINDER & WEISBERG, supra note 12, at 349–53, 365–77. 17. FRANKLIN E. ZIMRING & GORDON HAWKINS, CRIME IS NOT THE PROBLEM (1997). WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 7 have made in this conflicted area of law and values—or at least to question constitutional sentimentalism. This experiment doubtlessly requires many other assumptions, caveats, or qualifications to have a prayer of being useful, but let me add another crucial one here. I will, in absurdly rough and binary terms, speak of just two sides in the debate and, to be honest about the crudity of these terms, I will simply call them the pro-gun and anti-gun sides, which I mean to represent very stereotypical conservative and liberal attitudes, respectively. These terms surely blur the nuances and many different permutations of policy, law, and moral views people can have, but they are useful here precisely because I am concerned with how people strive or manage to be very rigidly consistent for or against guns. Also, let me telegraph my final punches. In seeking consistency, the pro-gun position is forcefully drawn to, and can generally rely on, a posture of tragic wisdom toward American violence: this position purports to be agnostic on why America has a great deal of violence, except to attribute the problem to some inexplicable, default notion about the uniqueness of our culture. In this respect, the pro-gun side ironically mirrors the frequent rhetoric of the anti-gun side, which often laments the miserable fact of violence inherent in American life. But where the anti-gun side’s lament—however much it speaks of violence “inherent in our culture”—treats guns as a potentially curable aggravator of bad values, the pro-gun side takes a different twist. It suggests that, even if we seem to be uniquely violent, we are (to put it in more ironic terms than the pro-gun side would) optimally violent. Violence, in this view, is an inexplicable or irreducible fact, but guns have political and social benefits that outweigh their costs in violence and, in any event, guns do at least as much as any other thing in our society to keep the level of violence where it is and no higher. Further, this equilibrium is consistent with, indeed mandated or intended by, the Second Amendment. This is not the only version of consistency on the pro-gun side, to be sure, but it may be the most intellectually cogent. The anti-gun side has more options in seeking consistency, but the choices themselves are vexing. The anti-gun side can commit to a full-blown Whiggishness about constitutional rights and say we are moving along a progressive path toward a peaceful society consistent with our constitutional values. We are not there yet, largely because this rooted in violence causes shocks to our system; these shocks are disasters but have little to do with our political or legal principles. The shocks are either WEISBERGC11.DOC 3/28/2002 12:45 PM

8 HOUSTON LAW REVIEW [39:1 largely exogenous but exacerbated by the prevalence of guns (for example the crack epidemic), or they are the occasionally unavoidable effect of the historical accident of our always having had too many guns. Hence, this side can try to retain some positive harmony between its views of American law and character. The anti-gun side can thereby proclaim core American values that animate most of the Bill of Rights. Of course, this version of consistency would seem to denude the Second Amendment as moot or trivial and, even if the anti-gun side can do that without Levinsonian embarrassment, sustaining a coherent position on the causes and consequences of American violence exceptionalism may prove difficult. Alternatively, the anti-gun side can take the extreme version of the anti-sentimental view I suggested earlier: that we virtually deserve the violence we have because it is tragically consistent with some of the original values of our nation and Constitution as expressed in the harmony of the Second Amendment and other rights. This negative harmony might seem a dead-end for liberal jurisprudence, though liberals may then face the question of whether the Civil War Amendments mitigated or aggravated the problem. Some scholars insist that the Civil War Amendments promised to redress the racist and hierarchical violence in our past by granting equal rights to armed self-protection, along with a full participatory role in civic governance;18 other scholars lament the failure of the courts to do so by incorporating the Second Amendment into the Fourteenth;19 while others happily argue that the failure of incorporation itself shows that we have chosen not to reinforce the violent or oppressive values they attribute to the Framers.20 Whether that is a feasible jurisprudential strategy is a vast subject beyond my scope here, but the very controversy shows that Reconstruction constitutional law is itself tied up with concerns about an American culture of violence. Alternatively, the anti-gun side can try to have it both ways and say that our constitutional values are sound but that our character is inconsistent with those values—in other words, we are a violent and racist nation that does not live up to its constitutional ideals. But by espousing this view, the anti-gun side as a general matter would be sacrificing a fair amount of its

18. AMAR, CREATION AND RECONSTRUCTION, supra note 10, at 215–23; Amar, The Bill of Rights as a Constitution, supra note 10, at 1167. 19. Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L. REV. 309, 346–48 (1991). 20. Robert J. Spitzer, Lost and Found: Researching the Second Amendment, 76 CHI.- KENT L. REV. 349, 371–74 (2000). WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 9 cultural and intellectual resources in deriving its positive view of the Constitution. Moreover, this view would be dangerously close, as I will note below, to a European-style liberalism that partakes far more of elitism than populism.21

II. “EXCEPTIONALISM” Before I discuss violence exceptionalism, a word about exceptionalism more broadly: it is meaningless to ask whether the United States or any other nation is “unique” in any way, but it is an important theme in American history that Americans exhibit an unusual preoccupation with believing and expressing some sense of our uniqueness. The notion of American uniqueness or exceptionalism is traditionally traced to Puritan conceptions of a new world, created out of virgin territory and charged with special spiritual and political destiny.22 This destiny evolves from a religious self-conception into a secular one. Along the way, our exceptional sense of self can become a very brutal thing leading us to assimilate or eliminate native peoples in the name of destiny though, as some have observed, our special American sense of self allows us to accept or justify violence by a claim that in our secular theology violence can and must have a high moral purpose to be redeemed.23 In any event, we have always seen the American self-image as free, restive, ambitious, and self-inventing. This is all especially true in the work of that old school of “consensus historians,” who said that the American Revolution was actually conservative in that it achieved independence for a nation that had already conceived and formed itself and its liberal ethos, “and lacked only the acute self- awareness that anticolonial revolution inevitably brings.”24 By that reckoning, our ultimately benign destiny even overcame slaveocracy, which was purged by civil war, and gave us an urban industrial revolution without the class warfare Marxism predicted.25

21. Refer to note 202 infra and accompanying text (suggesting that political and professional elites drive the liberal European criminal justice policies, despite conservative populist positions). 22. See generally DEBORAH L. MADSEN, AMERICAN EXCEPTIONALISM 1–4 (1998). 23. Id. at 157–60. See generally RICHARD SLOTKIN, REGENERATION THROUGH VIOLENCE: THE MYTHOLOGY OF THE AMERICAN FRONTIER, 1600–1860 (1973). 24. Hugh Davis Graham, The Paradox of American Violence, in VIOLENCE IN AMERICA: HISTORICAL & COMPARATIVE PERSPECTIVES 477 (Hugh Davis Graham & Ted Robert Gurr eds., 1979) [hereinafter VIOLENCE IN AMERICA: HISTORICAL & COMPARATIVE PERSPECTIVES]. 25. Id. at 475–77. WEISBERGC11.DOC 3/28/2002 12:45 PM

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And now are we uniquely or exceptionally democratic? Or constitutionally governed? Or capitalistic? Or powerful? Or prosperous? So America has always thought itself exceptionally if not uniquely something. But, for current purposes, among “peer” nations26 it is exceptional for having the highest homicide rate,27 though we also have by far the highest incarceration rate.28 How did we pull off this achievement of more civilization and prosperity yet more criminal violence and punishment than any nation in history?29 This is one heck of a destiny to manifest. Or, with respect to the Second Amendment debate, it is one heck of a destiny to explain. But now the matter of violence exceptionalism has become prominent again and yet cast in a new way. According to the new research in Zimring and Hawkins’s work, we are not uniquely criminal, just relatively criminal. Your chances of suffering a property crime are no higher in New York or Los Angeles than they are in some peer nations’ cities—lower in fact than in a few.30 Where we jump to the head of our class is in our rate of violence, or what we might call potentially lethal violence.31 Of course, there is a logical premise to this finding, which is that there is a disconnect between crime rates and lethality rates,32 and some early critics of Zimring and Hawkins have questioned

26. This grouping assumes some rough common denominator of democratic government and advanced industrialization. Sometimes criminologists use the “Group of 7” nations (United States, Italy, Japan, Germany, France, Canada, and United Kingdom). ZIMRING & HAWKINS, supra note 17, at 41–42. For some purposes, Zimring and Hawkins include a longer list of 20 nations. Id. at 7–8. 27. Id. at 8 (reporting that in 1990 the United States had a rate of 9.9 homicides per 100,000 residents, while the remaining 19 peer countries had rates largely clustered between 1.0 and 2.0). America still looks like an outlier when compared with a longer list that includes poor nations, though it falls second to Mexico. Id. at 53. 28. Id. at 31 (noting that the U.S. incarceration rate is from three to nine times higher than that of the other G7 countries, with the ratios having increased since 1960). And of course, with the statistically trivial exception of Japan, only the United States has the death penalty. See Stephen C. Thaman, Is America a Systematic Violator of Human Rights in the Administration of Criminal Justice?, 44 ST. LOUIS U. L.J. 999, 1000 (2000). 29. LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 172– 92 (1993) (generally discussing violence in America and recognizing that the anomaly of America’s crime rate is a great historical mystery). 30. ZIMRING & HAWKINS, supra note 17, at 4–7 (comparing crime rates in Sydney and London with crime rates in Los Angeles and New York, respectively). 31. Id. at 7–8. 32. Id. at 22–27. In arguing this disconnect, Zimring and Hawkins are required to derive or construct a category of violent or lethally violent crimes that are not congruent with standard crime classifications, especially when different national classifications must be used. See generally id. Therefore, they have to reconfigure many different definitions of such crimes as assault, robbery, and burglary to establish the data underlying the distinction between crime and violence. See id. at 11–13, 22–40, 48–50, 67–72. WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 11 their research on this point.33 That issue has important consequences for policy as well as for our sense of violence exceptionalism because many assume that lethality is a late stage effect of criminality. But given this disconnect, it is possible some of the things that cause crime do not play much of a role in causing lethality, and possibly vice-versa. Most obviously, it might suggest that gun prevalence, not crime prevalence, is the key to American lethality exceptionalism—but I will return to that contested question. In any event, we are probably exceptional in terms of the number of guns in private hands.34 On the other hand, as other critics note, the Zimring-Hawkins thesis may have implications for our understanding of the link between violence and race, because it may reframe the challenge of explaining why violent crime is disproportionately allocated by race in the United States.35 For example, if the causes of crime differ from the causes of violence, the socioeconomic explanations for disproportionately high minority crime rates in the United States—the explanations most embraced by liberals—may not be so useful in explaining disproportionately high violence rates. For now, let us just note that the Zimring-Hawkins thesis suggests— though does not require—that the issue of American violence exceptionalism be framed in terms of a choice between an “instrumentality” and a “perpetrator” theory of lethal violence.36 Furthermore, the thesis underscores the question of how these two different approaches map onto notions of national character. For now, I will return to Second Amendment matters and the most important recent developments there.

III. NEW SECOND AMENDMENT ISSUES In the last couple of years, the Second Amendment debate has taken a couple of new twists. I note two things in particular. First, Michael Bellesiles’s Arming America37 suddenly gave new life to liberals who wanted to have their cake and eat it too.

33. See Alfred Blumstein, Violence Certainly Is the Problem—And Especially With Hand Guns, 69 U. COLO. L. REV. 945, 946–53 (1998); Delbert S. Elliott, Life-Threatening Violence is Primarily a Crime Problem: A Focus on Prevention, 69 U. COLO. L. REV. 1081, 1081–91 (1998). 34. GARY KLECK, POINT BLANK: GUNS AND VIOLENCE IN AMERICA 17 (1991). 35. Refer to Part V.A.4 infra (analyzing the links between violence and race). 36. Daniel D. Polsby & Don B. Kates, Jr., American Homicide Exceptionalism, 69 U. COLO. L. REV. 969, 969–76 (1998); ZIMRING & HAWKINS, supra note 17, at 113–18. 37. MICHAEL A. BELLESILES, ARMING AMERICA: THE ORIGINS OF A NATIONAL GUN CULTURE (2000) [hereinafter BELLESILES, ARMING AMERICA]. See also Michael A. Bellesiles, Gun Laws in Early America: The Regulation of Firearms Ownership, 1607– 1794, 16 LAW & HIST. REV. 567 (1998) [hereinafter Bellesiles, Gun Laws] (arguing that limits were placed on gun ownership from the beginning of Colonial history). WEISBERGC11.DOC 3/28/2002 12:45 PM

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Bellesiles’s book purported to make several related discoveries. Gun ownership in Colonial America was far more rare than commonly believed, for both private38 and military purposes.39 Guns were unimportant in warfare before 1700,40 and later in the Colonial era militia members still proved remarkably inept in using them for military tasks and, in any event, suffered a severe lack of supplies from American gun makers.41 Guns were also a trivial factor in homicides.42 Well into the nineteenth century, American guns were surprisingly unreliable and inefficient,43 and gun owners were surprisingly inept in employing weapons in their private hunting and feuding.44 Moreover, state and local ordinances greatly restricted gun ownership, in part out of a general hierarchical sense that it should be a privilege only of high-status men, and in part out of serious fear that guns would be the tools of rebellion, especially by slaves and Indians.45 In Bellesiles’s phrasing, guns were “a public policy issue in the seventeenth and eighteenth centuries, not an inalienable and untouchable natural right.”46 Bellesiles argues that the notion of guns as part of a core American identity, or even a Civic Republican ideal, is a revisionist myth47 reinforced by the crassly commercial but brilliant advertising campaign of the Colt company before the Civil War, which created a new image of the gun-toting righteous defender of hearth and family as the model American.48 Bellesiles’s book was immediately pilloried by the pro-gun lobby as being historically and methodologically unsound.49 Most specifically, he stands accused of misreading and miscounting the probate records on which he relied. And whatever the motivation

38. BELLESILES, ARMING AMERICA, supra note 37, at 10, 13, 35. 39. Id. at 85. 40. Id. at 66. 41. Id. at 37, 202, 256. 42. Id. at 351–53. 43. Id. at 31, 42, 149, 202. 44. Id. at 15, 353. 45. Id. at 72, 75–78, 213. 46. Bellesiles, Gun Laws, supra note 37, at 589. 47. BELLESILES, ARMING AMERICA, supra note 37, at 14, 146–48. 48. Id. at 377–79. 49. See, e.g., James Lindgren & Justin Lee Heather, Counting Guns in Early America (forthcoming 43 WM. & MARY L. REV., to be published in April 2002); Joyce Lee Malcolm, Review: Arming America, 79 TEX. L. REV. 1657, 1669, 1673 (2001); Melissa Seckora, Disarming America: A Prize-Winning Historian and His Gun Myths, NAT’L REV., Oct. 15, 2001, at 50–53. WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 13 of the critics, some of this empirical criticism has proved effective.50 But why did Bellesiles’s book provoke such a vitriolic debate—in terms of law as well as of culture? Both the anti-gun side that relished the book and the pro-gun people who attacked it viewed Bellesiles as undermining the individual right reading of the Second Amendment by removing its supposed cultural foundation—the notion that guns were quantitatively and qualitatively very much a part of the life of colonial Americans whose rights were to be protected under the new Constitution.51 But of course were Bellesiles right empirically, he could also be read as treating guns as something like property, a privilege of the higher born and country types, or even like voting, a privilege of those credited with the capacity to govern. Thereby gun ownership could be something that, by analogy to other rights and interests, liberals would logically see as ultimately the entitlement of all Americans under post-Civil War constitutional principles.52 Indeed, Bellesiles would thereby support Akhil Amar’s communitarian reading of the Second Amendment whereby its original elitist principles contained the seeds of a more populist notion of individual liberty that was supposed to be realized by the Civil War Amendments.53 Indeed, even as Bellesiles tries to de-mythify gun ownership in Colonial America, he concedes that some American writers tried to treat guns as part of the armory of virtue of the proper American.54 There is a

50. See, e.g., Robert F. Worth, Historian’s Prizewinning Book on Guns Is Embroiled in a Scandal, N.Y. TIMES, Dec. 8, 2001, at A17, available at 2001 WL 30652207 (discussing scholars’ discovery of serious errors in Bellesiles’s research). 51. In his own specific discussion of the Second Amendment, Bellesiles argues that it was “both . . . a political gesture to placate the antifederalists and . . . an effort to regulate the militia as the best surety against dangerous social upheavals like Shay’s Rebellion and slave uprisings.” Bellesiles, Gun Laws, supra note 37, at 587–88. The militia was to operate as a check against the excesses of the public—precisely its historic use, from putting down slave rebellions to crushing labor unions. See id. 52. Indeed, Levinson himself virtually makes this point when he cites United States v. Cruikshank, 92 U.S. 542 (1875), which happened to involve gun ownership, as a very alarming early example of the Supreme Court’s refusal to fulfill the mandate of the Civil War Amendments when it held that the Second Amendment only restricted the federal government, not the states, and thus left protection of Blacks against White racial violence to the discretion of state policy. See Sanford Levinson, The Historian’s Counterattack: Some Reflections on the Historiography of the Second Amendment (Jan. 26, 2001) (paper presented at the Conference on Guns, Crime, and Punishment in America, James E. Rogers College of Law, University of Arizona) (on file with the author); LOU FALKNER WILLIAMS, THE GREAT SOUTH CAROLINA KU KLUX KLAN TRIALS, 1871– 1872, at 75 (1996); Cottrol & Diamond, supra note 19, at 347–48. 53. See Akhil Reed Amar, Second Thoughts: What the Right to Bear Arms Really Means, THE NEW REPUBLIC, July 12, 1999, at 24. 54. BELLESILES, ARMING AMERICA, supra note 37, at 217. WEISBERGC11.DOC 3/28/2002 12:45 PM

14 HOUSTON LAW REVIEW [39:1 fine line between myth and cultural aspiration and Bellesiles, intentionally or not, lends some support to the early normative idea of the armed model American. Moreover, Bellesiles himself describes how ethnic and racial prejudice did lead to a national culture of gun obsession in the years before the Civil War55 and, though he does so with passionate cynicism, the ironic implication is that as the United States developed self-consciousness about its exceptional violence,56 it was embedding gun ownership into its collective identity. Thus, one reading of Bellesiles might cause those on the anti-gun side, who try to damn gun ownership as a vestige of elitism and repression, to jettison some of their investment in Civic Republicanism. On the other hand, this reading of Bellesiles presents an opportunity and challenge for the pro-gun side in its continuing effort to elide the differences between republican virtues and radical libertarianism and populism.57 Or one can derive from Bellesiles a more culturally ambiguous reading of our history with guns and rights. Bellesiles suggests that in colonial times, the combination of ensuring gun rights for the elite while denying them to others was born of fear of the lower orders. By the mid-nineteenth century, the legality and tradition of state regulation of private gun ownership had solidified, but more and more people enjoyed the limited right accommodated by that regulation. As Bellesiles ominously puts it: The distinction is that where once specific classes of people could be identified as posing a danger to society, now anyone and everyone, from a small child to a spouse, can be

55. Id. at 13–14. 56. Id. at 347–48. 57. An example of this effort, ambitious to achieve the elision but resigned to its difficulty, comes from Lawrence Tribe: Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist/republican/federalism one: Its central object is to arm “We the People” so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather, the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes . . . a right that directly limits action by Congress or by the Executive Branch . . . . 1 TRIBE, supra note 10, at 901–02 n.221. WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 15

a source of armed terror. As the right to bear arms has been universalized, so has the fear.58 Thus the blend of populist autonomy and republican civic virtue are, in Bellesiles’s view, rooted in a fear of social disorder from below, indeed a kind of paranoia. The pro-gun side may view American violence exceptionalism as a fact and thus lauds the civic attitude of vigilance in the face of it, but Bellesiles may cause us to ask whether the true uniqueness about America and violence is that we are deeply invested in the belief or pretense that we are exceptionally vulnerable to social violence and hence exceptionally justified in maintaining a regime of gun protection. I will return to some of these themes below, but for now, note that Bellesiles can be read broadly as putting the role of guns in American society into the middle of the Second Amendment debate and challenging both sides to find a way to reconcile it with their own views. Another recent scholarly development, less dramatic than the Bellesiles affair but partly resulting from the new round of Second Amendment debates caused by the Bellesiles affair, is a more complex legalistic view about interpreting the militia clause of the Second Amendment. As best exemplified by constitutional historian Jack Rakove, this argument makes sense of the Second Amendment debates by reading the legislative history as focused mostly on rather technical, if politically troubled, adjustments in the relative powers of the state and federal governments over the arming of militias.59 To paraphrase Bellesiles, Rakove takes the supposed deontology of the Second Amendment and deliberately turns it into boring technical history. The amendment signals little more than the Framers’ condescending respect for the states’ fear that Congress would put burdensome regulations on the militia.60 Rakove therefore implicitly reminds us that guns were not associated with private defense at all, and he might be implicitly supporting an important tenet of the pro-gun position—that the Constitution contemplated some protection against national

58. Bellesiles, Gun Laws, supra note 37, at 589. 59. Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism, 76 CHI.-KENT L. REV. 103 (2000). See also Saul Cornell, Commonplace or Anachronism: The Standard Model, The Second Amendment, and the Problem of History in Contemporary Constitutional Theory, 16 CONST. COMMENT, 221, 227–29 (1999) (suggesting that, even though Pennsylvania was regarded as a relatively pro-gun state in the eighteenth century, there was no consensus among Pennsylvanians as to necessity of a general right to bear arms, even among anti-Federalists, and that Pennsylvania gun-right law was very restrictive). 60. See Rakove, supra note 59, at 141–44, 151. WEISBERGC11.DOC 3/28/2002 12:45 PM

16 HOUSTON LAW REVIEW [39:1 totalitarianism.61 But Rakove would surely say that this is an overheated implication. It was supervisory abuse and neglect by Congress, not totalitarian violence by the federal government, which the Framers agreed to constrain. And in any event, the constraint was to lie with the militias narrowly defined, not any populist militia of the whole. Rakove, however, would remind us that there is nothing so bizarre about a law written in the language of declaratory right while actually embodying a republican principle.62 I should add that Rakove himself has taken a cautiously balanced view of Bellesiles. He thinks some of the force of Bellesiles’s overall argument survives even if he was off to a significant degree in his counting.63 Rakove’s view is that, at the very least, gun ownership did not play nearly as dramatic a role in citizen self-conception as many previously thought. So at the very least, Rakove thinks the “cultural” debate is a wash, and that the legalistic and federalism debate is the real arena of meaning for Second Amendment debates. Rakove thereby helps liberals finesse the exceptionalism issue by rendering the Second Amendment largely irrelevant to contemporary matters of gun policy and violence. In terms of American cultural self- conceptions, guns, violence exceptionalism, and law, there is nothing deep to reconcile at all. Rakove’s view may prevail, but it is hardly universal among liberals whose political views would incline them against an individual right reading. Many insist on reading more substance into the Second Amendment while avoiding the pro-gun originalist argument. Christopher Eisgruber, for example, finesses the famous militia clause in a somewhat Civic Republican way; he assumes that the amendment did indeed provide for some kind of individual right, but suggests that the right must be of a nature and scope appropriate to a virtuous citizen conceived in republican terms that are adapted to the modern world.64 Akhil Amar would keep the individual right idea alive so long as he can retain openness to the changing functions of guns in society,65 and Amar and Laurence Tribe have both

61. See JAY SIMKIN ET AL., LETHAL LAWS 3–4 (1995); Daniel D. Polsby & Don B. Kates, Jr., Of Holocausts and Gun Control, 75 WASH. U. L.Q. 1237, 1240 (1997); Williams, Militia Movement, supra note 13, at 894. 62. Rakove, supra note 59, at 158. 63. Id. at 154–55. 64. Christopher Eisgruber, Moral Principle and the Second Amendment (Jan. 26, 2001) (paper presented at the Conference on Guns, Crime, and Punishment in America, James E. Rogers College of Law, University of Arizona) (on file with the author). 65. Refer to note 18 supra and accompanying text (arguing that although the Bill of WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 17 embraced the notion that the original constitutional notion of the militia meant the self-declared people as a whole and have at least inferred some lingering individual right of gun ownership as a consequence.66 Such notions of the Second Amendment encourage pouring modern and normative content into the amendment and must bear the burden of dealing with the facts and consequences of American exceptionalism. So let us now turn back to violence.

IV. VIOLENCE HISTORY To build up to the issue of American exceptionalism, here is a ludicrously but necessarily quick tour of crime and violence rates in western history. It is a cliché, but probably a correct one, to say that, contrary to any notion of a pristine medieval world, medieval England was a murderous place. Most killers and victims were males embroiled in disputes or sudden encounters, both rural and urban. The sheer prevalence of homicide was very high. Oxford, for example, had a homicide rate higher than anything we have witnessed in modern America.67 Though the correlation between homicide and crime generally is unclear, it seems obvious that it was both robberies and drunken brawls that led to huge homicide rates, and that, quite obviously, guns were hardly necessary to these rates. The history of the next several centuries in Britain and probably Europe is a progressive decline in homicides.68 The standard Whiggish history of what followed thereafter is also both clichéd and plausible—significantly declining violent crime rates over the next few centuries, and an initial challenge to gun and instrumentality theories of violence. In some sense, the decline is surely due to the civilizing effects of religion, education, state legal structures that control (or monopolize) violence, and other institutional phenomena traceable to the Enlightenment.69 All of this is nicely summarized by the most famous of the

Rights confers equal rights to gun ownership, citizens should be able to determine the role of guns in society). 66. Laurence H. Tribe & Akhil Reed Amar, Well-Regulated Militias, and More, N.Y. TIMES, Oct. 28, 1999, at 31, available at 1999 WL 29284364. 67. Ted Robert Gurr, On the History of Violent Crime in Europe and America [hereinafter Gurr, History of Violent Crime], in VIOLENCE IN AMERICA: HISTORICAL & COMPARATIVE PERSPECTIVES, supra note 24, at 353–54; Ted Robert Gurr, Historical Trends in Violent Crime: Europe and the United States [hereinafter Gurr, Historical Trends], in 1 VIOLENCE IN AMERICA: THE HISTORY OF CRIME 27–30 (Ted Robert Gurr ed., 1989) [hereinafter VIOLENCE IN AMERICA: THE HISTORY OF CRIME]. 68. Gurr, Historical Trends, supra note 67, at 21–23. 69. Gurr, History of Violent Crime, supra note 67, at 353–54; Gurr, Historical Trends, supra note 67, at 24–25. WEISBERGC11.DOC 3/28/2002 12:45 PM

18 HOUSTON LAW REVIEW [39:1

Whiggish historians, Norbert Elias, who offers a corrective to the notion that modern civilization causes violence.70 Of course, social dislocations associated with immigration probably caused some increases in crime and violence, but in a way consistent with this overall picture. Most typically, immigrants cause a brief increase in crime until they are assimilated—unless they bring “civilization” with them.71 Urbanization is another factor popularly thought to increase crime, but, in Europe at least, historians find a very weak correlation. Indeed, in some cases urbanization increases crime only in the paradoxical sense that depopulation in rural areas because of emigration to cities increases rural crime because of some loss of social protection.72 But overall these oft-cited criminogenic factors are masked by a general force of “civilization” in lowering crime and violent crime rates even as gun ownership increases and gun technology advances. The story of the United States is complicated compared to Europe’s. Very roughly, Europe experienced a steady decline in homicide through the end of the nineteenth century and after, with a few mild upticks, then a fairly striking increase late in the twentieth century, though neither in change nor in rate anywhere near the United States in lethal crime.73 Thus, Europe exhibits a mildly U-shaped curve, and the United States a more dramatic one. We mimic the European decline, with upticks around the Civil War, a notable dip from 1870-1880, and then an upturn in 1900 and 1960 with some declines in the 1930s and 1950s.74 The American story ends, of course, with horrific spikes in the late 1960s and late 1980s, and then an amazing drop until the present day. But putting aside the statistical dramas of the last four decades, what we see from the Civil War on is that slowly but surely the gap between the United States and Europe, especially the United Kingdom, rises.75 And whatever the contributions of racial factors, New York has always had a

70. See NORBERT ELIAS, THE CIVILIZING PROCESS: THE DEVELOPMENT OF MANNERS, at xi, xvi, xvii (Edmund Jephcott trans., 1978). 71. Gurr, Historical Trends, supra note 67, at 34, 37. 72. Charles Tilly, Collective Violence in European Perspective, in VIOLENCE IN AMERICA: HISTORICAL & COMPARATIVE PERSPECTIVES, supra note 24, at 83, 88, 104–05. 73. Gurr, Historical Trends, supra note 67, at 34–41. 74. Problems abound in interpreting homicide data for nineteenth-century New York, for the surprising reason that the courts and prosecutors were peculiarly lenient on killers—at least where the killing resulted from a fight between two Irishmen. Roger Lane, On the Social Meaning of Homicide Trends in America, in VIOLENCE IN AMERICA: THE HISTORY OF CRIME, supra note 67, at 55, 64–66. 75. Eric H. Monkkonen, Diverging Homicide Rates: England and the United States, 1850–75, in VIOLENCE IN AMERICA: THE HISTORY OF CRIME, supra note 67, at 80. WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 19 significantly higher murder rate than large European cities throughout these many years, even if we limit our statistics to Whites of northern European ancestry.76 After the Civil War, the American failure to fall very far in light of “civilizing” trends, and the mild rise around the turn of the century, result in a huge and expanding divergence between the United States and British homicide rates. Ironically, as some research shows, this is correlated with lower actual punishment for homicide in the United States (though with more gun availability) because of prosecutorial and jury nullification of many barroom-type or other non-stranger murder prosecutions.77 One of our principal folk theories of social change is that violence accompanies serious transitions as they move to new equilibria, in our movement towards mature industrial society. But if that general theme holds true, we must wonder why our equilibrium seems so much more lethal than Europe’s. Ultimately, then, we settle into violence superiority. But beyond these big, broad, macrohistorical generalizations, not much is certain. A more particularistic explanation of any change in crime rates has trouble surviving standard regression analysis. Poverty sometimes causes increases in violent crime, and sometimes does not.78 Social dislocation sometimes does and sometimes does not. No one knows why twentieth-century violence and theft rates went in tandem, while in the previous century violence was positively correlated and theft negatively correlated with prosperity.79 Indeed, even sharp comparisons between the United States and its peer nations do not explain this incongruence. For example, the shocking rise in violent crime in the United States during the Vietnam War era is often linked to particular economic and political dislocations and struggles in this country.80 Yet we see parallel rises in countries where most of the standard explanations for American

76. Id. at 81, 90 (noting that the higher homicide rate among Blacks can only account for half the difference between European and American rates). 77. Lane, supra note 74, at 66–67; Monkkonen, supra note 75, at 88. 78. JAMES Q. WILSON & RICHARD HERRNSTEIN, CRIME AND HUMAN NATURE 312–36 (1985); Wesley G. Skogan, Social Change and the Future of Violent Crime, in VIOLENCE IN AMERICA: THE HISTORY OF CRIME, supra note 67, at 242. 79. Neil Alan Weisner & Margaret A. Zahn, Violence Arrests in the City: The Philadelphia Story, 1857–1980, in VIOLENCE IN AMERICA: THE HISTORY OF CRIME, supra note 67, at 117–18. But see Eric Baumer et al., The Influence of Crack Cocaine on Robbery, Burglary, and Homicide Rates: A Cross-City, Longitudinal Analysis, 35 J. RES. CRIME & DELIN. 316–40 (1998). 80. Gurr, Historical Trends, supra note 67, at 47–48; Lane, supra note 74, at 57; Hugh Davis Graham, Violence, Social Theory, and the Historians: The Debate over Consensus and Culture, in 2 VIOLENCE IN AMERICA: PROTEST, REBELLION, REFORM 330– 31 (Hugh Davis Graham & Ted Robert Gurr eds., 1989). WEISBERGC11.DOC 3/28/2002 12:45 PM

20 HOUSTON LAW REVIEW [39:1 exceptionalism would hardly obtain. Scandinavia, that land of homogeneity, wealth, and socialism is an example.81 On the other hand, if we look to that sharpest of Occam’s Razors, birth bulges, and the increase of young males in a society, we discover that even during this era crime rates did not rise in eastern European countries that saw big short-term bulges of this sort.82 To return to the wealthier western European countries, saying that rises in crime are due to the hedonism induced by industrialism or the media is probably tautological. When we try to account for those factors popularly associated with our very high criminality, we may find ourselves ascribing it to that amorphous category, that ultimate tautology, called American culture. In the next Part, I will survey some of the central themes that appear in discussions of American violence exceptionalism. I deliberately use the vague word “themes” to avoid the more specific term “explanations.” Historians, journalists, and politicians who purport to explain our violence exceptionalism draw on an ample store of standard explanations: the Frontier, the prevalence of a Scotch-Irish culture, the conflicts over race and slavery, the rise of the most purely capitalist society, our distinct heterogeneity, or most ominously, something in the American mindset that suggests violent paranoia. Actually, these “explanations” vary in the degree to which they are indeed falsifiable explanations or something more akin to humanistic interpretations, and often they turn out to not be so much cultural interpretations as performative, rhetorical tropes. American violence exceptionalism is not only hard to explain, but may be a meaningless thing to attempt to explain in terms of positive social science, because it so amorphous and contestable a concept. So my interest here is in how these themes are used when the conflicting sides in the Second Amendment debate seek to buttress their constitutional arguments with wider intellectual resources. Of course, the conflicting sides in the Second Amendment debate spend most of their energy on positive, rather than explicitly normative, interpretation: endless wranglings over the syntax of the Second Amendment, and endless research about and analysis of the legislative history, including the militia- related clauses of the original Constitution, relevant state provisions, and the English Bill of Rights. But both sides also have an interest in widening the debate. Like all constitutional advocates, knowing that originalist methods of constitutional

81. Gurr, History of Violent Crime, supra note 67, at 365. 82. Id. WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 21 interpretation are also sharply contested, both sides look to wider normative themes to inform their argument, and they know that normative themes in constitutional law often succeed best when they can tap into generalizations about American moral and political values. This need becomes both greater and more complicated in the Second Amendment area because this is a nation so consumed with its crime problem that Second Amendment debates necessarily invoke questions of our self- conception in relation to violence.

V. EXPLANATORY THEMES ABOUT AMERICAN VIOLENCE In this Part, I lay out and loosely classify some of these themes (but hardly provide a comprehensive review of the historiography of violence) and in each case, I occasionally comment on how the themes “favor” either the pro-gun or anti- gun side. Then, in Part VI, I will more specifically review the cluster of arguments associated with the pro-gun and anti-gun sides and link some of them back to these “explanations.”

A. “Cultural Explanations” I use a vague term here, and qualify it with quotes, because I will enumerate some causal notions about violence exceptionalism that are hard to classify. Each is often propounded as a causal explanation subject to some sort of evidentiary testing. But in each case, the evidentiary resting cannot possibly be statistical or empirical in any systematic sense, so each glides into the sort of generalization about American character or values we associate with cultural anthropology or its specific form as American Studies. Moreover, each tends to get carelessly or strategically invoked as rhetoric to serve some ulterior legal or political purpose.

1. The Frontier. The notion of the Frontier is often invoked to help explain our violence exceptionalism. But what is it and what can it explain? For some, playing the “Frontier card” means viewing all American history as a frontier experience—a selectively identified immigrant population taking over vast territory and reflecting an aggressively adventurous, individualist spirit, which is supposed to have something to do with aggressive, lawless violence.83 To give the Frontier

83. See, e.g., W. EUGENE HOLLON, FRONTIER VIOLENCE: ANOTHER LOOK 3–4 (1974). See generally FREDERICK JACKSON TURNER, THE FRONTIER IN AMERICAN HISTORY (1947); FRIEDMAN, supra note 29, at 175–77. WEISBERGC11.DOC 3/28/2002 12:45 PM

22 HOUSTON LAW REVIEW [39:1 explanation more utility, we have to link it back to the real Frontier and then bring it forward. At a certain foundational stage in our history, and in some places lasting longer than others, our forebears created a venue of radical individual egalitarianism, a pristine and primitive place of pre-political property rights.84 Linking the “Frontier mentality” to violence exceptionalism may entail that these qualities of culture and character are either bad things that unnecessarily cause violence, or good or perhaps historically and geographically inevitable things that, alas, cannot help but produce violence. In fact, one can try to reconcile the Frontier theory with the overall Whiggish picture described above by conceiving the American Frontier as a pre-civilization suddenly reborn in a modern world—an ontogeny that recapitulates philology—with the hope that we will yet transform the “inner city Frontier” into a peaceful new civic order. But what does this have to do with modern violence, or with inner city violence? Obviously, we need some notion of cultural transmission that embeds certain attitudes into a society even when most of the underlying conditions have disappeared. Let us assume that some such mechanism, however elusive, can be found.85 The Whiggish view would lament that transmission but seek empirical proof that late twentieth-century increases are, like those in the late nineteenth century, anomalous bumps along the road to social peace consistent with a just constitutional society. Or, under the more negatively harmonious view of our character and Constitution, one can read the worst aspects of the Frontier mentality back into the minds of the Framers. The Frontier, then, for many people, signals a kind of lawlessness, or an absence of formal law and the presence only of some natural law whereby constitutionally equal people will seek to fulfill their preferences and solve their disputes in a free market of will and aggression. But there is a more sophisticated historical understanding of the Frontier that bears on the subject of guns, law, and violence. The Frontier had its utopian aspects— and I do not mean this in the pristine romanticized way of cheap

84. MADSEN, supra note 22, at 77 (arguing that nature was violated and nature’s laws replaced with petty legal systems that condoned exploitation during the westward expansion). 85. See Robert J. Cottrol, Submission is Not the Answer: Lethal Violence, Microcultures of Criminal Violence and the Right to Self-Defense, 69 U. COLO. L. REV. 1029, 1053–55 (1998). Cottrol suggests that because Black Americans became inured to the truth that criminal laws would not be enforced to protect them, they came to believe in private self-help protection from, or deterrence of, crime. Id.; see also James Q. Wilson, Hostility in America: Book Review of Crime is Not the Problem, 69 U. COLO. L. REV. 1207, 1211 (1998). WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 23

Westerns or, to be blunt, of some right-wing ideology. The Frontier might have lacked due process, and its egalitarianism obviously did not include Native Americans, but it was not exactly the wild, wild west in terms of many types of crime. As illustrated by wonderful histories of such towns as Aurora and Bodie, the western Frontier suffered very little rape, larceny, robbery, or burglary, while often in conditions of great ethnic heterogeneity and the absence of any state law enforcement.86 What it did exhibit in terms of crime was horrific homicide rates, with perpetrators and victims who were almost all men became entangled in petty disputes and drunken brawls.87 Women were relatively safe from crime. Paradoxically, when more women came to western towns, especially to marry, the “feminization” of Frontier culture reduced the homicide rate considerably.88 The West was a fascinating combination of defensive gun ownership that probably was a huge deterrent to crime, a weak state, a Victorian moral code, and little racism (except where it was racist toward Native Americans). So the Frontier may indeed be a cultural model, but in a subtle way it is a fairly positive model for the pro-gun side, almost a limiting case or equilibrium state for American values. What homicidal violence there was: (a) picked not very morally innocent people as victims, and (b) may reflect some zero-sum of aggression in human society (or American society). On the other hand, if geographical and economic conditions might have “caused” this irreducible amount of violence, the pro-gun side may be obliged to worry over whether some Frontier attitudes have gratuitously carried over to inner city modern America.

2. Vigilante America. The term “vigilante” is part of western American lore and is often associated with the Frontier.89 And so, as a matter of political rhetoric, anti-gun people often speak of vigilante attitudes in condemning the kind of vengeful and often prejudicial motivation behind much violence. So maybe this is a strain in American culture that somehow distinguishes us and also causes some excessive violence in our society— though again, some may say that the net effect for society is beneficial. Indeed, the “vigilante mentality” might be a more precise name for the “Frontier mentality” that, in the view of

86. Roger D. McGrath, Violence and Lawlessness on the Western Frontier, in VIOLENCE IN AMERICA: THE HISTORY OF CRIME, supra note 67, at 122–29. 87. Id. at 132–37. 88. Id. at 131–32. 89. Richard Maxwell Brown, The American Vigilante Tradition, in VIOLENCE IN AMERICA: HISTORICAL & COMPARATIVE PERSPECTIVES, supra note 24, at 153. WEISBERGC11.DOC 3/28/2002 12:45 PM

24 HOUSTON LAW REVIEW [39:1 some, has been culturally transmitted forward. So it can actually be posited as a cause of our violence exceptionalism—though not a cause provable by any social science. In any event, the vigilante concept is rather complex and serves to better explain the vaguer notion of a Frontier mentality. If the Frontier generally signals a kind of lawlessness, the vigilante movement is very lawful.90 The term best applies to groups of men in southern and western towns who would take authoritarian action against those viewed as lawless.91 At this point, we have to break vigilantism into different, but related, parts. There are the vigilante groups that really are a kind of self-appointed police force to attack conventional crime in towns where formal police are lacking.92 There are lawless vigilante thugs who work for large corporations to stomp on labor protestors or other threats to capitalism.93 Finally, there is a mélange of self-appointed authority groups, usually drawn from the elite of society, aiming to constrain disorder in society, sometimes with the most heinous of racist motives.94 But whatever form vigilantism takes, the vigilante mentality is motivated, at least subjectively, if not legitimately in any objective sense, by a purpose to enforce moral or legal rules. Many historians have noted that the quasi-governmental nature of vigilantism is an important subtlety. Though we are exceptionally violent, there is, compared to the rest of the world or even the rest of the West, little state violence against private people in our history and little insurrectionary violence against the state.95 Rather, we have huge amounts of private-on-private violence, with some of the private parties often having some sort of official authority but, more important, acting as if they had such authority. So, Richard Hofstadter claims American violence has a conservative bias in terms of the motivation of vigilante killers.96 But that does not mean American violence takes any clear or conventional form. Rather, if you put together the various kinds

90. FRIEDMAN, supra note 29, at 184. 91. Id. at 154. 92. Id. at 158–68. 93. Richard Hofstadter, The Paranoid Style in American Politics, in THE PARANOID STYLE IN AMERICAN POLITICS AND OTHER ESSAYS 224 (Alfred A. Knopf ed., 1965). 94. See Brown, supra note 89, at 168–76. 95. See Richard Hofstadter, Reflections on Violence in the United States, in AMERICAN VIOLENCE: A DOCUMENTARY HISTORY 3, 11 (Richard Hofstadter & Michael Wallace eds., 1970). 96. Id., see also Richard Maxwell Brown, Historical Patterns of American Violence, in VIOLENCE IN AMERICA: HISTORICAL & COMPARATIVE PERSPECTIVES, supra note 24, at 19, 20. WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 25 of violence that various historians associate with vigilantism, it would appear that in the late nineteenth century every interest group in the United States was trying to kill every other interest group in the name of order and, possibly, law.97 You had ranchers fighting farmers. You had cowboys fighting corrupt city officials, and local elites fighting rebellious cowboys, and you even had militias and federal troops fighting corporate vigilantes who were fighting local officials who were acting in behalf of ranchers who were fighting the big barons. You had Texas Rangers and self- appointed Rangers fighting Indian tribes, and you had horrific White groups attacking Blacks, but you had Black self-help groups forming as well. There were family feuds that were as big as political wars, and some of them were political in the sense of being rooted in Reconstruction battles in border areas.98 There were agrarian uprisings and economic terrorism and Grangers and populists.99 And, in a rarely noted moment in history, New Mexico was the scene of the most concentrated series of political assassinations in our history.100 It was Stephen Douglas’s “popular sovereignty” run amuck.101 If all this seems like Hobbesian chaos, it still illustrates Hofstadter’s point that, even though it was often technically private violence, it was often motivated by a social sense, however misguided, that the violence was restoring some kind of civic order. In that sense, vigilantism is the ugly side of the militia-of-the-whole idea so beloved by pro-gun forces. But to a sociologist or anthropologist of American life, it also offers insights into America’s criminal violence. There is a school of modern criminology that deals with the “mindset” of violent criminals and stresses that a private motivation to enforce the law is often dominant.102 Much American violence often feels to the inflictor like legitimate public law enforcement. This vigilante mentality resonates with an important strand of modern criminology, a strand that draws much more on interpretive sociology or cultural anthropology than statistical social science. Think of gang killings to preserve territorial

97. Brown, supra note 96, at 22–25, 38–40. 98. See G. David Garson & Gail O’Brien, Collective Violence in the Reconstruction South, in VIOLENCE IN AMERICA: HISTORICAL & COMPARATIVE PERSPECTIVES, supra note 24, at 243; Brown, Historical Patterns of American Violence, supra note 96, at 24. 99. Gurr, Historical Trends, supra note 67, at 24–25. 100. Brown, supra note 96, at 24–26. 101. Brown, supra note 89, at 167. 102. See Donald Black, Crime as Social Control, in 2 TOWARD A GENERAL THEORY OF SOCIAL CONTROL: SELECTED PROBLEMS 1–27 (Donald Black ed., 1984); Robert Weisberg, Private Violence as Moral Action: The Law as Inspiration and Example, in LAW’S VIOLENCE 175–210 (Austin Sarat & Thomas R. Kearns eds., 1992). WEISBERGC11.DOC 3/28/2002 12:45 PM

26 HOUSTON LAW REVIEW [39:1 integrity.103 But also think of the individual street killer, of the sort described in Jack Katz’s great book Seductions of Crime,104 who kills because his sense of justice and rectitude demands it, or think of Elijah Anderson’s Code of the Street,105 in which young men commit crimes to ensure that their version of moral value is upheld. Think of certain very “culturally situated” killings such as the racially motivated killings in Howard Beach, New York, and Brooklyn in the 1980s, which aimed at purifying neighborhoods.106 There are notions of cultural transmission out there that suggest all of these killers are heirs of the Civic Republicans, seeking to retain mastery of their domains. Ironically, these killers include the Timothy McVeighs of the world, the tax protestors, the common-law lienors, and survivalists. These killers also feel political when they kill—but they feel even more legalistic than political.107 They may be motivated by a distrust of government, especially the federal government; but that does not make them less law-minded. Rather, they represent a strand of civic-order obsession that traces back to the pro-gun side’s view of the Second Amendment—that the federal government and its standing armies may represent a kind of corruption of the deeper moral and legal order that the militias of the whole were designed to protect. Modern self-styled “militia” groups act to reclaim constitutional values and purify our society—though often the impurity they condemn is the denial of gun use itself, and often the criminal charge they provoke is arms stockpiling.108 Most of this phenomenon, of course, involves perverse rationalization by malevolent killers, but that is of course the point. Although I have focused on violence that often, perhaps adventitiously, involved guns, the tradition of violent self-help law enforcement has something to do with the history of guns themselves. A superb recent study by Richard Slotkin recounts

103. ELIJAH ANDERSON, CODE OF THE STREET: DECENCY, VIOLENCE, AND THE MORAL LIFE OF THE INNER CITY 116–18 (1999). 104. JACK KATZ, SEDUCTIONS OF CRIME: MORAL AND SENSUAL ATTRACTIONS IN DOING EVIL 32–51 (1988). 105. ANDERSON, supra note 103, at 107–41 (explaining that those who cannot depend on police and other authorities to protect them often take personal responsibility for their security). 106. Weisberg, supra note 102, at 184. 107. See generally KENNETH S. STERN, A FORCE UPON THE PLAIN: THE AMERICAN MILITIA MOVEMENT AND THE POLITICS OF HATE (1996). 108. See, e.g., Lee Hancock, Koresh Trying to Provoke “War,” Federal Officials Say, DALLAS MORNING NEWS, March 9, 1993, at 1A (reporting David Koresh’s stockpiling of arms and ammunition); Lee Hancock, Files Detail Evidence of Huge Cult Arsenal, DALLAS MORNING NEWS, May 26, 1993, at 27A. WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 27 the commercial history of the Colt business.109 In a wonderful act of revisionist autobiography, Colt described how his invention of the Colt pistol derived from his concern for ensuring equal opportunities for autonomous individuals engaged in private defense. But Slotkin’s history reveals that Colt was much more concerned with helping planters to put down slave insurrections, or helping the Texas Rangers to put down Comanches.110 So the guns came to typify more colonial conquest than Frontier manhood among equals. Moreover, given the claim of many violent groups to represent populist mass interest, it is a bizarre irony that early mass-production firearms often served to allow corporate security forces to put down resistance from poor rural Whites. So the history of gun manufacture supports one of Bellesiles’s themes: that it was a paranoia, and possibly a cynically contrived paranoia, that lent to nineteenth-century America a sense of its special vulnerability to, and right to defend against, violent disorder.111 Much of this American violence can be seen as an example of what Hofstadter describes as “the paranoid style” in American politics.112 From the southern perspective, this was the view that cast the South as the passive victim of alien forces. The South, after all, was created by the need to protect a peculiar institution, and it simultaneously exhibited profuse hospitality to and terror of outsiders. But this deep paranoia, enhanced by or rooted in Protestant theology, worked the other way as well. As David Brion Davis shows in his brilliant extension of Hofstadter,113 the Southerner and the abolitionist looked at each other in reciprocally paranoid ways. Each acted out a peculiarly, though hardly unique, American vision of conspiracy, corruption, and recrimination, reflecting the need for moral purity and rooted especially in the slave power conspiracy. While to abolitionists slavery was a dangerous atavism of European corruption, to the South abolitionism threatened the defilement of our civilization via slave

109. Richard Slotkin, Equalizers: The Cult of the Colt in American Culture (Jan. 26., 2001) (paper presented at the Conference on Guns, Crime, and Punishment in America, James E. Rogers College of Law, University of Arizona) (on file with the author). 110. Id. 111. Refer to notes 46–48 supra and accompanying text; see also BELLESILES, ARMING AMERICA, supra note 37, at 437 (“The fear becomes the danger, as Americans acted on the imagined terrors around them and armed themselves for private protection. Accidental shootings became common, and family arguments too often ended with gunshots.”). 112. Hofstadter, The Paranoid Style in American Politics, supra note 93, at 3–40. 113. DAVID BRION DAVIS, THE SLAVE POWER CONSPIRACY AND THE PARANOID STYLE (1969). WEISBERGC11.DOC 3/28/2002 12:45 PM

28 HOUSTON LAW REVIEW [39:1 rebellion.114 The paranoid style, Davis states, actually helped both sides to finesse the gap between slavery and liberal ideology and to avoid confronting our infamous accommodations. Davis traces this paranoia forward to the roiling social conflicts of Reconstruction, which embedded violent paranoia into a supposedly new constitutional structure. Davis also traces backward, attributing the American Revolution not so much to political issues like central control and taxes, but to an almost primal sense that Britain represented a corruption of edenic virtue.115 So if we are a very Protestant, moralistic culture in some broader cultural or spiritual sense, it is not so great a paradox to say that our national sense of vindictive moralism about disorder leads to exceptional violence. It is beyond social science to prove or even describe this phenomenon in any concrete way. But it is certainly part of the academic tradition of American Studies to venture generalizations like this as a way of explaining traits of our social and political life, and these generalizations are a resource for those setting out to understand why we are exceptionally violent, and whether the grounding of that violence has anything to do with our core legal principles.

3. The South. It may seem strange to describe the South as a “cause” of American violence, or as a way of interpreting it. The obvious reason why discussions of American violence recur to the South is, of course, that in an exceptionally violent country, the South is generally seen as the most exceptionally violent region.116 So cause-seekers or explainers may mean one of three things. First, the bulk of the difference between the “amount” of American violence and that of peer nations is attributable to the South. Second, southern society has certain characteristics that lead to excessive violence, and those characteristics are prone to migrate to the rest of the country, whether by emigration of those imbued with southern values, or by some form of cultural osmosis. Third, if we discover what there is about the South that makes it even more violent than the rest of this country, we will discover core cultural features that are the distinctly American causes of violence—the syllogism is that the South will prove to be the most American of American places. The first of these three is surely false. The second begs various questions about the nature and transmissibility of

114. Id. at 23. 115. Id. at 3–7. 116. Dov Cohen & Richard E. Nisbett, Self-Protection and the Culture of Honor: Explaining Southern Violence, 20 PERSONALITY & SOC. PSYCHOL. BULL. 551 (1994). WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 29 behavior, and so, in any event, it may depend on the truth of the third. Yet, the notion of the South being the most American place in America, even if just for the purposes of understanding violence exceptionalism, seems strange. The South is not supposed to be typical—it is the part of the country that declared itself different and had to be reassimilated. And if culture is the grounding of law, the modern Constitution—the Constitution as transformed by the Civil War Amendments—was forged in large part as a way of rejecting the South’s challenge to American values.117 But perhaps the notion is not so strange. For one thing, when we speak of the South in relation to violence, we often mean the facts and legacies of slavery, so that we find in the South the core of racist attitudes and grievous wounds that were present, even then, in the North and are still present now. Indeed, the South has proved the decisive or swing place in most modern presidential elections—recall Nixon’s southern strategy of 1968, and recall that in 1992 and 1996 the Democrats made sure to put two White Baptist Southerners on their ticket and still pulled off only a wash in the candidates’ home region.118 If we look to recent politics to define the “typical” or “swing” American voter, it is one whose attitudes toward race, law, crime, religion, and even economics are represented by the middle-class of the southern or Border states.119 After changing American politics by turning these voters from their traditional but ultimately illogical Democratic base, the modern Republican party discovered (constructed) the Reagan Democrat, that is, a similar political figure among the disaffected ethnic Democrats of the industrial North.120 For now, I will artificially separate the matter of race from the matter of southerness and speak of race again in a separate category below. There is some support for this artificial separation, in that southern White violence rates are still somewhat higher than rates for most of the United States— certainly higher than White violence rates elsewhere.121 Of

117. John E. Nowak, Federalism and the Civil War Amendments, 23 OHIO N. U. L. REV. 1209, 1211–15 (1997). 118. For a discussion of the 1992 and 1996 Democratic Strategy in the South, see Jim Chapin, Why the GOP’s Southern Strategy Ended, Part II, UPI (Washington), Feb. 24, 2001, at http://www.newsmax.com/archives/articles/2001/2/23/172743.shtml. 119. See generally Marshall Ingwerson, Parties Vie for South’s ‘Swing Voters,’ CHRISTIAN SCIENCE MONITOR, Feb. 25, 1988, available at LEXIS, U.S. News, Combined. 120. See Helen A. Moore & Hugh P. Whitt, Multiple Dimensions of the Moral Majority Platform: Shifting Interest Group Coalitions, 27 SOC. Q. 423 (1986). 121. Cohen & Nisbett, supra note 117, at 551, 551–52 (arguing that the southern United States has been known to be more violent than the northern United States based WEISBERGC11.DOC 3/28/2002 12:45 PM

30 HOUSTON LAW REVIEW [39:1 course, even “purely White” violence might be traceable to slavery in some ways. But there are independent arguments for the South being different. For one thing, the South has more guns than (most) other places in the United States. This fact supports the instrumentality argument—though many of the Great Plains states of the far North are also high in gun ownership, but remarkably low in crime.122 For another, some cultural historians trace a particular ethic of violent revenge and feuding—something related to the complex of vigilantism I have described—to the Scotch-Irish places from which people disproportionately came to the South in the Colonial period.123 In any event, there is some empirical support for the South being different. In one phase of research done about a quarter- century ago, especially by Sheldon Hackney, studies concluded that there may indeed be something distinct we can call the southern subculture of violence.124 In terms of the raw facts of violence, the South had a higher homicide rate than the North throughout much of the twentieth century; but remarkably, it had a lower robbery rate and, compared to the North, its homicides were tilted toward family and acquaintance killings rather than stranger killings.125 This might suggest that the South is a continuing manifestation of the Frontier. But the South stopped being a frontier in most senses of the term over a century ago. It is not a wild open place, but a fairly thickly peopled and relational place.126 Black crime can explain much but not all of the southern excess of homicide; within southern states there is no clear correlation between violent crime and concentration of Black people.127 Those searching for economic explanations argue that there are more low-status jobs in the South, but that fact does not correlate with southern crime in any observed way and neither does rurality, education, wealth, or age.128 To borrow the violence measure used by some sociologists,

on an ideology justifying violence for maintaining a code of honor and self-protection). 122. Polsby & Kates, supra note 36, at 982–83. 123. Richard Nisbett et al., Homicide and U.S. Regional Culture, in INTERPERSONAL VIOLENT BEHAVIORS: SOCIAL AND CULTURAL ASPECTS 135 (R. Barry Ruback & Neil Alan Weiner eds., 1995) (discussing the relationship regarding cultural norms and violence between regions of the country). 124. Sheldon Hackney, Southern Violence, in VIOLENCE IN AMERICA: HISTORICAL & COMPARATIVE PERSPECTIVES, supra note 24, at 393. 125. See Christopher G. Ellison, An Eye for an Eye? A Note on the Southern Subculture of Violence Thesis, 69 SOC. FORCES 1223, 1234 (1991) (analyzing the factors in support of interpersonal violence under defensive or retaliatory circumstances). 126. Hackney, supra note 124, at 401–02. 127. Id. at 396–98. 128. Id. at 399. WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 31 the suicide/homicide ratio (SHR),129 Southerners have a lower SHR than both rural and urban populations elsewhere, and indeed a lower SHR than the non-southern mostly rural western states.130 Hackney concluded, by means of logical elimination, that there must be a sort of southern subculture of violence, and he speculated that it had something to do with atavisms of old codes of honor.131 Some social scientists attacked his speculations as mere tautology.132 But recent survey studies, especially one by Cohen and Nisbett, find some confirmation for Hackney’s conclusion.133 Limiting their study to White males, Cohen and Nisbett conclude that although Southerners do not, compared to northern White males, endorse violence in general, they do differentially endorse it when honor and defense of self or home come into play.134 Southerners sound less violent when asked about violence without a context, but more violent in specific social contexts creating motives to redress injury or insult. They differentially approve of even lethal violence to protect hearth and to avenge insults as well.135 Another anomaly is that, whatever the root cause of a southern violence premium, one might assume in this deeply traditional place a fair amount of cultural transmission, but even that does not quite hold up.

129. Austin L. Porterfield, Indices of Suicide and Homicide by States and Cities: Some Southern—Non-Southern Contrasts with Implications for Research, 14 AM. SOC. REV. 481, 481–86 (1949). 130. Hackney, supra note 124, at 394. 131. Id. at 406–07. 132. See, e.g., Jo Dixon & Alan J. Lizotte, The Burden of Proof: Southern Subculture- of-Violence Explanations of Gun Ownership and Homicide, 95 AM. J. SOC. 182, 185 (1989); Colin Loftin & Robert H. Hill, Regional Subculture and Homicide: An Examination of the Gastil-Hackney Thesis, 39 AM. SOC. REV. 714 (1974) (suggesting that there exists a cultural bias of regional variations in homicide rates). 133. See Cohen & Nisbett, supra note 116, at 552 (addressing how, although the conditions that gave rise to southern violence are gone, the justification for violence associated with honor still remains); Hans Toch & Alan Lizotte, Research and Policy: The Case of Gun Control, in PSYCHOLOGY AND SOCIAL POLICY 232 (Peter Suedfield & Philip Tetlock eds., 1992); see also Dov Cohen & Richard E. Nisbett, Field Experiments Examining the Culture of Honor: The Role of Institutions in Perpetuating Norms About Violence, 23 PERSONALITY & SOC. PSYCHOL. BULL. 1188, 1190 (1997) (relying on experiment to show how prospective employers respond to job applicant’s acknowledgment of criminal past); Dov Cohen et al., “When You Call Me That, Smile!” How Norms for Politeness, Interaction Styles and Aggression Work Together in Southern Culture, 62 SOC. PSYCHOL. Q. 257, 257 (1999) (confirming stereotypes of Northerners as both less polite and less tolerant of violence than Southerners). 134. See Cohen & Nisbett, supra note 116, at 552, 554–56 (commenting on how the development of a culture of honor typically occurs in areas where law enforcement is inadequate); Patricia L. McCall et al., Violent Criminal Behavior: Is There a General and Continuing Influence of the South?, 21 SOC. SCI. RES. 286, 293–94 (1992). 135. Ellison, supra note 125, at 1225. WEISBERGC11.DOC 3/28/2002 12:45 PM

32 HOUSTON LAW REVIEW [39:1 southern pro-violence attitudes are stronger among the older than the younger,136 and the evidence that migrants from the South carry much of this attitude with them is weak. So what does this tell us? Did inner city Blacks who moved to the North bring this culture with them? There is weak evidence even for Whites doing so.137 Does the South somehow tell us something general about the United States and just exemplify it more? If so, liberal complaints that it is rootlessness and anomie in society that lead to violence hardly work, because in these terms the South is the opposite of anomic.138 Maybe gun ownership is the simple explanation here, but it is hard to make a statistical case for this, and it surely produces some chicken- and-egg problems.139 Does the South represent or typify the resistance to law and centralized government that sometimes gets deflected onto other groups—as in the vigilante example? Possibly, though most of the evidence would trace to Reconstruction, and there is plenty of pre-Civil War evidence of southern violence exceptionalism.140 So perhaps the attitude toward honor and insult that is peculiarly strong—though hardly unique—in the South does somehow get transmitted by emigrant Southerners to other contexts. Or perhaps the South is a mirror onto general American attitudes that distinguish us from our peer nations. The first of these explanations is theoretically testable by survey and demographic studies, but such studies would probably be impossible to conduct in any helpful and reliable way. Moreover, this theory is somewhat doubtful in light of some of the Nisbett- Cohen research itself. The second explanation leads us back to a humanistic interpretation of our culture, but one that does not resonate very much with the usual themes of American Studies scholarship—except for those traits that are distinctly southern. So we return to honor and insult. Here we find a very specific legal connection in our law of self-defense.141 Historian Richard Maxwell Brown has delineated how the American law of self-defense, though derived from the English, diverged in the nineteenth century over the issue of

136. Id. at 1229–32. 137. Id. at 1277–29. 138. Hackney, supra note 124, at 401–02. 139. Mark S. Kaplan & Olga Geling, Firearm Suicides and Homicides in the United States: Regional Variations and Patterns of Gun Ownership, 46 SOC. SCI. MED. 1227, 1231–32 (1998) (considering regional variations and finding that gun possession is more strongly tied to suicide than homicide). 140. Hackney, supra note 124, at 404. 141. Id. WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 33 duty to retreat.142 As Brown argues, something in the American conception of self and status proved incompatible with the traditional legal requirement that an attacked person seek every reasonable path of escape before killing in self-defense.143 Indeed, Brown notes that some of the decisive American state court decisions even referred to such a thing as “the American mind” as the explanation for the American difference.144 Brown then argues that whatever motivated this American difference has considerable purchase even today and, in treating such infamous cases as that of Bernhard Goetz, the so-called “Subway Vigilante,” he helpfully distinguishes the refusal-to-retreat mindset from the vigilante mindset.145 But the larger implications of this tracing are elusive. What is it that caused us to reject the duty to retreat? The simple and uselessly circular answer is something in southern or Frontier culture, though given the difference between the thick social relations in one and relative absence in the other, a common source seems implausible. Perhaps the larger implication is that it is meaningless to ask why we rejected the full duty to retreat, but worth noting that the absence of it in positive law serves as an anti-deterrent to criminal violence. To prove that hypothesis, however, requires great assumptions or almost unimaginable research to determine whether alterations in self-defense law can really affect the minds of killers.146 A few extreme examples of dramatic and highly publicized changes in self-defense law may have some provable effects, but deterrence research is probably incapable of generally establishing the consequences of nuanced doctrinal changes in the definition of crime, much less the definition of an affirmative defense. So the South will remain both the great moral and psychological mirror for the United States as a whole, and yet the

142. RICHARD MAXWELL BROWN, NO DUTY TO RETREAT: VIOLENCE AND VALUES IN AMERICAN HISTORY AND SOCIETY 5–6 (1991) (arguing that American homicide rates were higher than that of England during the nineteenth and twentieth centuries because of our adoption of the common law in favor of no duty to retreat). 143. Id. 144. Id. at 17 (discussing an 1877 Indiana Supreme Court holding in which the duty to retreat was “a legal rationale for cowardice and that cowardice was simply un- American”). 145. Id. at 134 (noting that Goetz had been mugged and beaten three years prior to the infamous subway incident and discussing how that related to his no duty-to-retreat mindset). 146. ZIMRING & HAWKINS, supra note 17, at 167–69 (commenting that citizens are more likely to feel that any shooting justified by self-defense is sanctioned by the authorities if not prohibited by criminal law). WEISBERGC11.DOC 3/28/2002 12:45 PM

34 HOUSTON LAW REVIEW [39:1 mystery at the heart of our cultural self-conceptions about violence. Having dealt with some larger themes with a necessary brevity, I shall deal with other large themes even more summarily, just to set them up in a way useful to my tentative conclusions. So some words about guns and about race.

4. Race. Race being the largest topic of all, my very modest goal here is to note that there are various ways in which race is invoked as part of explanations for or interpretations of our violence exceptionalism. Putting aside the inconceivable argument that some particular racial group is inherently more prone to violence than humankind generally, or the plausible but hopelessly vague argument that social heterogeneity increases violence,147 race or even slavery is in no clear sense a cause of anything about American violence. Indeed, race or slavery is sometimes just a rhetorical trope to invoke when we condemn or lament American violence exceptionalism, to express the sense that with a history like ours we almost deserve the violence we have, or at least cannot expect to escape it. But what slavery has to do with modern violence is an elusive and big question. If we focus on Whites, do we say that Whites actually do have brutal antisocial attitudes traceable to slave ownership? If we focus on Blacks, are we saying that violence is a justifiable or at least excusable attitude rooted in old fears or anger about slavery and continuing fears or anger about racism? Or do we finesse the issue by blaming violence on socioeconomic inequities and hope that statistical analyses that distinguish race from socio- economic status do not make this too hard for us to pull off? Let me add that the link between gun history and race has been complicated and enriched in recent years by the work of such scholars as Carl Bogus, Robert Cottrol, and Raymond Diamond. Bogus re-reads the history of firearms in the late eighteenth and early nineteenth centuries to suggest that guns were an instrument for putting down slave rebellions; his explicit goal is to sufficiently tarnish the provenance of gun rights in America so as to embarrass the pro-gun side out of any originalist/historical position the pro-gun side would want to publicly take.148 Cottrol and Diamond turn the same provenance around or, to mix my metaphors, argue that it is in the English constitutional tradition, as inherited by the Framers, to ratchet

147. See Hofstadter, supra note 95, at 12. 148. See Carl T. Bogus, Race, Riots, and Guns, 66 S. CAL. L. REV. 1365, 1367 (1993). WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 35 limited (and even abused) rights upward rather than down.149 Indeed, they uncover some below-the-constitutional radar evidence of a kind of de facto, strategic democratization of gun rights early in the nineteenth century. South Carolina and the federal government, for example, extended gun rights to some free Blacks out of necessity, given the huge free Black population in a state trying to constrain slave rebellion; and indeed there were other states where some free Blacks were armed to help fight off Indians.150 These provocative depictions of racial violence and gun rights press some very hot buttons in American social and legal history. They can support Amar’s idealistic notion that the Civil War Amendments promised Blacks and other groups an equal right to participate in civic governance rooted in the old militia-of-the-whole republicanism.151 But they can also support Bellesiles’s more cynical view that it was paranoia over or repression of the lower orders that created the ideology of American gun rights.152

B. The Anti-Cultural Explanation: Gun Prevalence A wonderfully simple and not entirely implausible explanation for American violence exceptionalism is the sheer fact that we have too many guns in this country.153 This would be a culture theory in the form of an anti-culture theory, the exception to prove the rule of this review of “cultural” themes. An extreme form of the instrumentality theory would be that we are not “inherently” more prone to violence than other places, but we are more likely to have guns handy when we feel violent. There are many problems with this, and I will put aside the most superficially obvious—there may be just as many guns in Switzerland, which has little violent crime.154 There is the

149. See generally Cottrol & Diamond, supra note 19; Cottrol, supra note 85. Contra Uviller & Merkel, supra note 5, at 561–78 (arguing that the threat of slave revolt was much smaller than Bogus is able to prove and that northern states with no concern about slave control were almost equally behind the Second Amendment). 150. Cottrol & Diamond, supra note 19, at 326 (noting that, while the laws of the colonial period were designed to maintain White supremacy and control, the right of Blacks to bear arms was often limited to times of crisis and subject to White opinion about the loyalty of Blacks); BELLESILES, ARMING AMERICA, supra note 37, at 75–76 (discussing colonial law’s ambiguous attitude toward free Black ownership of guns). 151. Refer to notes 52–53 supra and accompanying text. 152. Refer to notes 45–48, 55-58 supra and accompanying text. 153. The number is probably between 200 and 250 million. See Bernard E. Harcourt, Introduction: Guns, Crime, and Punishment in America, 43 ARIZ. L. REV. 261, 263–64 (2001) (reviewing the statistical estimates of gun prevalence in America). 154. Don B. Kates et al., Bad Medicine: Doctors and Guns, in GUNS: WHO SHOULD HAVE THEM? 233, 253–54 (David B. Kopel ed., 1995) (noting that there is yet to be a proven relationship between gun ownership and homicide rates across a broad spectrum WEISBERGC11.DOC 3/28/2002 12:45 PM

36 HOUSTON LAW REVIEW [39:1 problem that within the United States the link between gun ownership rates and violence is equivocal.155 There are empirical problems with the so-called “virgin killer hypothesis” this implies.156 And there would still be the question of whether the number of guns is an exogenous or endogenous variable. Why do we have so many guns, and would the answer lead us to the real problem of why we are so violent? I will return briefly to this question below, but just note now that the instrumentality hypothesis poses a big challenge to anti-gun groups to explain why we have so many guns, without implicating other things about American society they might like to see as benign or honorable. And also, especially where extremities of gun violence have a distinct racial cast, to blame this all on gun availability risks a strangely condescending attitude to minorities or even conspiratorial theory about why killers use these guns.

C. The Super-Cultural Explanation: Political Equilibrium I conclude this brief tour of cultural theories of violence exceptionalism by deriving a very speculative theme from those already discussed: historians often speak, though very elusively and vaguely, of some sort of functional and cultural equilibrium about violence, state power, and democracy in this country.157 They imply that we may indeed have a well-functioning system that achieves some kind of “violence optimality,” if we take into account the many forms of human disaster that do not count as criminal violence and that we relatively well avoid, though perhaps at the (tolerable?) cost of a great amount of criminal violence. Some observers have noted the strange condition in the United States relating violence to style of government: we have relatively little political violence against the state, yet plenty of private and intergroup violence, especially aimed at minority groups.158 Has the absence of feudal order and class structure

of countries and cultures). Maybe the number of guns does not matter when there is an entirely distinct history, culture, and law of gun ownership as there is in Switzerland. 155. Polsby & Kates, supra note 36, at 982–92 (discussing how people and their lethal motives are factors usually ignored in the instrumentality theory). 156. Id. at 993 (arguing that killings are the ultimate result of arguments brought on by distinctly and habitually anti-social people, “plain folks” who just happen to have access to guns are not a major social danger); refer to notes 174–77 infra and accompanying text. 157. Graham, supra note 24, at 480–83, 488. 158. Id. at 480; Hofstadter, Reflections on Violence in the United States, supra note 95, at 7, 10–11 (commenting on how America has avoided developing a revolutionary tradition despite documented incidents of civil violence). WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 37 diffused violence? Has a (relatively) weak state in a federal capitalist system augmented people’s jealousy and fear of other private groups? Some historians note, for example, that even our labor unions have been relatively capitalistic, and that much of the political violence we have has been more reformist— reflecting an urge to be included—than radical. Notions or phrases like our “fluid society” or our “boom and bust economy” are often heard when we try to isolate a key ingredient of the “American character” that might simultaneously partake of social freedom, economic growth, and a capacity for violent self- expression.159 Is our unique lethality connected to anything that is distinctly, if not uniquely, good about us? We are not very law- abiding, and we purport not to trust government, but we generally do not fear government. As Hofstadter says, we have a history but not a tradition of violence because violence here has no memory or ideology.160 Ours is indeed a capitalist structure, of great racial and ethnic heterogeneity, where private hands have great power to mete out rewards and punishments. For us, despite our supposed Revolutionary heritage, rebellion is not political. We are not very law-abiding, nor are we very subversive.161 Is violence a zero-sum phenomenon in America? Is criminal violence a necessary outlet for energy that could otherwise be even more destructive? If so, what is the role of the criminal justice system in this equilibrium? Have we encouraged or accepted a highly inefficient system, constrained by precious individual right against police power, because we do not expect (or want?) the criminal justice system to tamp down or repress violence in the wrong places, or channel it to the wrong places? This notion might seem odd in a country that now incarcerates far more people than any of its peers. But is the combination of inefficiency, rights protection, and fits of high incarceration part of some weird, underlying stasis? The gun issue reinvokes these questions, because both sides in the constitutional argument hope to make their cases consistent with some wider cultural reading of the Constitution, and hence with their self-affirming conceptions of American culture and character.

159. Graham, supra note 24, at 483. 160. Hofstadter, supra note 95, at 3 (noting that the lack of a cohesiveness to our domestic violence is the result of our violence being “too various, diffuse, and spontaneous to be forged into a single, sustained, inveterate hatred shared by entire social classes”). 161. Id. at 11 (noting the paradox that we have both great violence and great political stability). WEISBERGC11.DOC 3/28/2002 12:45 PM

38 HOUSTON LAW REVIEW [39:1

VI. THE CHALLENGES OF CONSISTENCY I now turn back to my two artificially conceived “sides” in the Second Amendment debates and link them to some of these themes, to help us understand how advocates in the Second Amendment debate frame their arguments with an eye toward cultural, legal, and moral consistency. To conclude, I hope to identify the places in their intellectual agendas where the two sides have to address violence exceptionalism, and how they choose among strategies such as denial, evasion, admonitory affirmation, and condemnation of this phenomenon.

A. Pro-Gun Consistency The pro-gun side, even before it addresses questions of exceptionalism, must acknowledge that we do have a huge number of guns and also at least a fairly high degree of criminal violence. Hence, we have a peculiar, if not unique, commitment to a right to gun ownership and a uniquely high number of truly “private” guns: we have far more guns in individual hands than any other developed nation, with the exception of countries like Switzerland and Israel which virtually require individual gun ownership as an obligation of citizenship.162 How are these reconciled? The pro-gun side implicitly portrays a world in which we are uniquely committed to private guns out of a special self- conception of America as a place where guns are good and where violence lurks. But violence lurks, paradoxically, in both the irreducibly threatening proclivities of private citizens and in the sheer logistical power of central government. For some on the pro-gun side, the violence we have to fear most is from repressive, centralized, and ultimately totalitarian government. Hence, we must have guns to resist tyranny. The United States, this side argues, has been uniquely successful in sustaining democracy and thwarting tyranny by retaining guns in private hands. We are not paranoid—we are optimally vigilant. We have learned a negative lesson from Europe and elsewhere about the dangers of totalitarian government, and we are uniquely smart about how to prevent it. Concern about private violence is not so foundational in the pro- gun agenda, but it is still important that guns incidentally also deter criminal attacks in the majority of circumstances in which the police cannot help us. Thus, the pro-gun side may be inclined somewhat towards the equilibrium theme suggested above. At

162. Kates et al., supra note 154, at 233, 254. WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 39 the same time, it tries to achieve a reconciliation of populism and Civic Republicanism, and if it does so in a clumsy way in its political rhetoric, this elision of populism and republicanism nevertheless has found support in very sophisticated scholarly arguments.163 But what happens when the pro-gun side is forced to explain and address our violence exceptionalism? This side can, of course, engage in denial and attack the statistics, though to do so is a mild intellectual problem, because the pro-gun side gains something by depicting society as something other than pacific by nature. Nevertheless, as a political strategy, so long as guns are associated with violence, it is mildly favorable to the pro-gun side to dispute violence exceptionalism. Failing that, the pro-gun side must do everything it can to disentangle violence from guns. But what if it cannot establish a cultural equilibrium? Is the Frontier our positive (or our least bad) model after all? Can the pro-gun side exploit the notion that the inner city has become the Frontier, when the inner city hardly looks like the Frontier in the utopian form I have described above?164 One possibility is to take a deeply tragic view of human proneness to violence, as the pro-gun side does when it advocates a “perpetrator” theory rather than an “instrumentality” theory of violent crime. But then it must confront the charge that gun regulation becomes especially vital in an exceptionally homicidal nation. One pro-gun answer can be that private defensive gun ownership still reduces criminal violence below what it would otherwise be,165 so the pro-gun side implicitly concedes that America is inherently even more exceptionally violent than it now appears to be, given the masking effect of the current level of defensive gun use. Another is that there is something of a zero- sum principle of violence in our society. Even if defensive gun ownership cannot lower criminal violence below the uniquely high levels we see in the United States, the excess is the price we pay for the clear benefit of gun-ownership—resistance to tyranny. Therefore, the most pragmatic strategy is to eschew any hope of eliminating violence in favor of the sensible goal of

163. Refer to notes 61–66 supra and accompanying text. 164. Refer to Part V.A.1 supra. 165. See KLECK, supra note 34, at 203 (asserting that gun ownership “often makes attack unnecessary”); David B. Kopel, Lawyers, Guns, and Burglars, 43 ARIZ. L. REV. 345, 349 (2001) (suggesting that lower burglary rates in America owe to the would-be burglars’ fear of being shot by American homeowners with guns); see also Randy E. Barnett, Saved By the Militia: Arming an Army Against Terrorism, NAT’L REV. ONLINE, Sept. 18, 2001 (opining that heroic resistance by passengers on United Airlines Flight 93 on Sept. 11, 2001, illustrates the value of armed militia), at http://www.nationalreview.com/comment/ comment-barnettprint091801.shtml. WEISBERGC11.DOC 3/28/2002 12:45 PM

40 HOUSTON LAW REVIEW [39:1 diffusing it. Is private violence an irreducible fact of American life? Would it be higher if we lacked defensive guns? Or perhaps we are uniquely prone to private violence, but also uniquely equipped to handle it through private defensive gun use. And is there any connection among these phenomena? How does the pro-gun side handle race? It certainly has the resources to take a high road on racial matters consistent with its pro-gun position—most obviously, by adopting the view that the Fourteenth Amendment promises an equal distribution of gun rights and general civic opportunities that were so harshly restricted at the time of the Second Amendment. This approach can be taken with aggressive empathy for minorities by stressing that minorities are the predominant victims of violent crime and are thus most in need of the defensive protection of guns.166 In that regard, gun rights become like voting rights and other aspects of equal protection in our second constitutional revolution. We owe Black Americans the right to own guns; we have waived any power to deny them that right. This approach can include the very specific argument that the contemporary Americans who most benefit from a right of defensive gun ownership are poor inner-city women167—and that they indeed are the real customers for Saturday Night Specials. It can also thereby acknowledge and even affirm socioeconomic explanations of inner-city crime, and express sympathy for some apparent social pathologies, like the territorial gang culture portrayed by Elijah Anderson.168 On the other hand, the pro-gun side has tended to make these arguments about race and guns in fairly abstract constitutional terms, or in the form of brief rhetorical gestures. It may be wary of investing too much of its political or intellectual armory in this kind of racial argument because it is simultaneously invested in relatively harsh criminal justice policies that minorities disfavor, or in the kind of agnostic, tragically resigned view of American violence that resists any

166. Cottrol & Diamond, supra note 19, at 359 (noting that Black Americans have had fewer guarantees that the federal government will protect them and, as such, would be more dependent on their Second Amendment rights to ensure their freedom). Of course, to do so might ironically require the pro-gun side to co-opt rather than refute some of the claims made by Bellesiles. 167. Mary Zeiss Stange, Arms and the Woman: A Feminist Reappraisal, in GUNS: WHO SHOULD HAVE THEM?, supra note 154, at 15, 41 (presenting the Civic Republican feminist argument for female empowerment through guns). 168. See generally ANDERSON, supra note 103 (discussing gang life in the inner-city ghettos). WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 41 great concession to any form of social engineering to reduce crime.169 Many of these arguments are wonderfully laid out in an article by Don Kates and Daniel Polsby in their response to the new Zimring-Hawkins book.170 Kates and Polsby make their case for “denial,” noting that, except for Japan, most of the G7 countries experienced similar crime booms in the last decades.171 They question the statistical soundness of the Zimring-Hawkins decoupling of crime and lethality, noting that for certain reconfigured categories of violent crime, the United States is not at all an outlier, but rather is close to Canada, New Zealand, Australia, the former Czechoslovakia, and even the Netherlands.172 Thus, to cleverly paraphrase Zimring and Hawkins, Kates and Polsby argue that crime is indeed not the problem because relatively it is not a problem after all. Kates and Polsby are even more aggressive in arguing for “disentanglement.”173 They note that in the last ten years homicide has decreased while gun ownership has increased, and that this is especially true in the case of domestic violence where, paradoxically, guns are quite available in homes but are rarely necessary.174 The domestic violence issue also enables Kates and Polsby to restate their attack on the so-called “virgin killer hypothesis.” The hypothesis goes like this: the problem with gun prevalence is that even people who are not “inherently” criminal, especially hot-headed people in domestic disputes, end up killing because of the fortuity that a gun just happens to be around when their passions escalate.175 Zimring and Hawkins, they would say, implicitly subscribe to such notions, believing homicides are de-linked from other criminal activity and are instead motivated by situation.176

169. See Polsby & Kates, supra note 36, at 980 (contrasting the fact that African Americans comprise only twelve percent of the total population with the fact that fifty percent of the total perpetrators of homicides are African Americans). 170. Id. at 976. 171. Id. at 976–77. 172. Id. at 982–83. 173. On the disconnect between gun possession and homicide, and the greater correlation of gun possession with suicide internationally, see Kates et al., supra note 154, at 255–56. 174. Polsby & Kates, supra note 36, at 986–87 (observing that guns are used less often in domestic homicides than in felony murders or in gangland slayings). 175. Id. at 972 & n.17 (comparing the language used by Zimring and Hawkins to the rhetoric used by the “anti-gun” Violence Policy Center). 176. Id. at 972–73 (attributing to Zimring and Hawkins the theory that “murderers ‘are good citizens who [only] kill each other’ because a gun was available in a moment of ungovernable fury” (alteration in original) (internal citation omitted)). WEISBERGC11.DOC 3/28/2002 12:45 PM

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The Kates-Polsby attack on the hypothesis goes like this: even most “domestic killers” are not criminal “virgins.” They tend to be warped, anti-social men with histories of abusive behavior, if not criminal violence, and, even if they appear to “snap” in a “heat of passion,” the snap evolves from an escalating series of attacks during which they have plenty of time, opportunity, and motivation to find weapons. Killers are not people “just like us.” They are a distinct subcategory of sociopaths whose lives exhibit patterns of drugs, alcohol, gambling, philandering, and other bad behavior, even without adjudicated criminal priors.177 Finally, Kates and Polsby place a heavy bet on a default cultural theory. They passionately invoke the claim of Colin Greenwood—that ethnic and social factors explain crime, that guns are irrelevant, and that gun prohibition is pointless.178 They prefer perpetrator theories, by which not government policy but the combination of sheer human perversity and varying convergences of social, political, and economic vectors explain modern crime booms, and therefore incarceration booms, as rationally reactive state policy.179 In yet another clever paraphrase of Zimring and Hawkins, Kates and Polsby argue that crime is indeed the problem, in the sense that crime and violence are both the unavoidable consequences of an undifferentiated packet of high-risk, anti- social behavior and anti-social pathologies. Petty crime, however different from lethal crime, lies on the same pathological continuum. Anti-social personalities are a distinct subclass of our species, and the United States governs this population less well than other countries, perhaps because of our population diversity, or lack of social cohesion, or the legal restrictions on our police. Of course, this approach at least somewhat validates strong state policies against private conduct—a position that a deep conservative like Polsby might prefer but a libertarian pro-gun advocate like Kates would discourage—but that is simply a tension to acknowledge in the pro-gun side. Exacerbating this tension is that, for libertarians like Kates, intellectually

177. Id. at 993–99 (asserting that ninety percent of all killers old enough to have an adult criminal record do have a criminal record of some sort); see also KLECK, supra note 34, at 333–34 (noting that huge assumptions have to be made to conclude that a cooling- off period will work, and arguing that the Brady period would prevent less than one percent of homicides). 178. Polsby & Kates, supra note 36, at 974 (citing Colin Greenwood & Joseph Magaddino, Comparative Cross-Cultural Statistics, in RESTRICTING HANDGUNS 31, 39 (Don Kates ed., 1979)). 179. Id. at 973–74. WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 43 consistent protection of Second Amendment and Fourth and Fifth Amendment rights constrains the police from reducing violence further. So the pro-gun side tends to be wary of over- investing in engineering criminal justice or any other social policies to affect crime rates.180 Even if they must concede to Zimring and Hawkins some decoupling of crime and lethality rates, Kates and Polsby would ask: “Why should we expect uniformity in homicide to parallel uniformity in crime?” Maybe some robbers are just deadlier than others, for nation-specific cultural reasons.181 Ultimately, Kates and Polsby return to the cultural argument, rooted in Frontier and vigilante theories, that ours is a nation that dictates how “young men will answer narcissist injuries and territorial affronts, and what one may do or may not do in order to get money or drugs or sex.”182 If challenged to provide a more nuanced subcultural analysis, they might acknowledge that immigration and other social dislocations may have short-term effects, or they might revert to some deeper combination of a Frontier and immigration theory—we have for centuries been the figurative Frontier for tens of millions of immigrants,183 so whatever the inherent nature of “Frontier” violence, it is an inescapable part of us. Indeed, Kates and Polsby are even quite willing to cite standard liberal arguments that violence by Black Americans is due to their unique experience of frustration, anomie, malign neglect, and even the oppression of the war on drugs.184 So on the whole, the pro-gun side has a weird set of advantages, including the availability of a tragically realistic view of life that enables it to finesse racism merely by citing forces beyond human control. While it may face little pressure to give a more efficacious role to criminal justice systems, it is happy to point out how certain state-control improvements are feasible. It can adapt Civic Republicanism to populism and make self-mastery sound very egalitarian.

180. Id. (concluding that making gun use a crime is a “meaningless, no-value-added gesture”). 181. Id. at 978–79 (provocatively asking in what sense instrumentalism could be a reason for the United State’s anomalously high rape rate). 182. Id. at 979. 183. Id. at 980–81. 184. Cottrol, supra note 85, at 1060–62 (opining that, while other industrialized nations have minority populations, none of these populations have experienced the struggles through which African Americans have lived). WEISBERGC11.DOC 3/28/2002 12:45 PM

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B. Anti-Gun Consistency

First, it would seem to be not in the interest of the anti-gun side to deny violence exceptionalism—quite the opposite. The anti-gun side believes and must exploit the shaming rhetoric associated with American exceptionalism in this regard. And as a first cut, the anti-gun side would like to link violence exceptionalism with gun prevalence exceptionalism. Of course, the anti-gun side thereby faces large proof obstacles in explaining the gun-less violence in Medieval England, the absence of any proof that shall-issue laws cause any killings at all, the high- crime and low-gun rates in Russia and Mexico, the patterns of differential ethnic violence in the United States in cities where gun prevalence is fairly uniform, and so on. On the other hand, the anti-gun side finds some advantage in focusing on very short-term trends in violence and lethality rates, not just because the statistics thereby become more dramatic, but also because this short-term focus enables it to invoke a methodological and political agnosticism that proves useful in a way parallel to the deeper cultural agnosticism of the pro-gun side. The dramatic spike in American homicides in the late 1980s—an increase coincident with the crack cocaine epidemic—is a fine example. Of course, relying on a self-defined era in crime rates is risky. As one Zimring and Hawkins reviewer points out, the boundaries of any “era” are arbitrary and the numbers often small; social inertia may be too glibly reconstrued as continuity, and short-term changes may be due to exogenous facts so peculiar that, at least within a human lifetime, nothing can be generally learned from them.185 But in the late 1980s, the crack- associated, youth-dominant homicide increase was so extreme as to warrant special attention as a distinct historical phase. Here, the appearance of sheer gun prevalence as an explanatory factor would seem to favor the pro-gun side. The consensus story is that, whatever caused the advent of crack cocaine use, this new drug episode led to a rise in robbery and a decline in burglary, as drug users needed quicker cash, when neighborhoods were awash in illiquid stolen property with low prices. Young men were suddenly recruited into the trade, sellers were armed and guns diffused to peers, and people were killed to achieve or avenge

185. Lee N. Robins, Causes and Correlates of Lethal Violence in America; What Determines Rates of Homicide Over Time and Place: Can We Find Out?, 69 U. COLO. L. REV. 1009, 1013–15 (1998) (lamenting that sample sizes are too small to provide enough data to make meaningful extrapolations over eras). WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 45 against thefts and rip-offs or to carry out competitive business plans.186 Zimring and Hawkins attribute much of the large youth homicide increase to the presence of guns, and major criminologists like Alfred Blumstein tend to agree.187 But attribution here clearly means identifying gun prevalence as an important and necessary, but far from sufficient, cause. Zimring and Hawkins stake out an argument against the economics of the drug market being the dominant explanation. Though they see some support for “systemic drug violence,”188 they are skeptical about the sheer fact of criminal economic competition explaining homicide,189 and they note that drug crime economics in other countries is not similarly correlated with lethality.190 They try to finesse the issue of how race explains homicide changes,191 although once they focus on short-term changes, they have the advantage that the percentage and role of minorities in our society hardly changes in ten-year periods. They note that America stands out not just for the rate of homicide generally, but also for the percentage of non-stranger homicides,192 thereby vaguely suggesting that something in the nature of social structure may be salient. Sounding a bit like Kates and Polsby, they state, “[w]here potential drug sellers have the habits and

186. Eric Baumer et al., The Influence of Crack Cocaine on Robbery, Burglary, and Homicide Rates: A Cross-City, Longitudinal Analysis, 35 J. RES. CRIME & DELINQ. 316, 316–40 (1998); John J. Donohue & Steven Levitt, Guns, Violence and the Efficiency of Illegal Markets, 88 AEA PAPERS AND PROCEEDINGS 463, 466–67 (1998). Donohue and Levitt argue that the key factor in rising homicide rates is the unpredictability of violent encounters, and that gun prevalence increases this factor. See also Laura Helmuth, Has America’s Tide of Violence Receded for Good?, SCIENCE, July 28, 2000, at 582. 187. Alfred Blumstein, Violence Certainly is the Problem—And Especially With Handguns, 69 U. COLO. L. REV. 945, 962 (1998) (asserting that youth homicide via handguns explains most of the late 1980s homicide spike). Franklin E. Zimring, Kids, Guns, and Homicide: Policy Notes on an Age-Specific Epidemic, 59 LAW & CONTEMP. PROBS. 25, 31 (1996) (noting a spike in gun availability among American youths, while acknowledging that the size of the “juvenile gun inventory” is unknown). Gun prevalence is most notable among youth, but the youth-gun problem is also the most remediable. Id. at 31, 33–34 (suggesting that an increase in the price of guns would result in a disproportionate reduction in the use of guns by youths). 188. ZIMRING & HAWKINS, supra note 17, at 144 (conceding that drug-related homicides are conservatively estimated at ten percent of all homicides, with the percentage in Washington, D.C., and New York City approaching fifty percent). 189. Id. at 140–45 (asking rhetorically why other illegal activities, such as price- fixing, do not also cause homicide). 190. Id. at 147 (calculating the ratio between drug-related killings as sixty homicides in Los Angeles for every one homicide in Sydney, Australia). 191. Id. at 202 (emphasizing that focusing on African Americans when addressing homicide rates is a statistical, rather than a moral, obligation). 192. Id. at 203 (estimating the rate of stranger homicide in the United States as thirty times the reported rate in Great Britain). WEISBERGC11.DOC 3/28/2002 12:45 PM

46 HOUSTON LAW REVIEW [39:1 skills of violent predators, the overlap between hard narcotics and violence can be expected to be substantial because problems of credibility and nonenforceability would seem to call for violent measures.”193 It is a matter of the “background and predilection” of drug sellers.194 This leaves Zimring and Hawkins with a two-part strategy. The first part is to strongly suggest, without claiming to prove, that gun prevalence is the major explanation by casting even greater doubt on other explanations. The second related part is to conclude that gun reduction is the most sensible strategy for homicide reduction, even if we remain unsure about causality. In this second step, Zimring and Hawkins suggest that, because the causes of crime (or lethal crime) are deep-seeded, complex, and perhaps ultimately indeterminate, we should disentangle our efforts to reduce crime from our efforts to understand its causes. Thus we should focus on top-down behavioral controls that make no pretense at getting at root causes. The nice irony here is that Zimring and Hawkins are thereby co-opting a philosophy of crime control usually associated with contemporary conservatives, most notably James Q. Wilson.195 Zimring and Hawkins are agnostic not only about statistical proof, but also about political feasibility. They worry over whether any coherent gun control strategy can win a consensus, because politicians and the public will inevitably be divided between a broad strategy that inhibits gun ownership across the board, and a narrower strategy aimed at particularly dangerous individuals, such as felons and the mentally ill.196 But Zimring and Hawkins extend this political skepticism to wider doubts about achieving a consensus on criminal justice policy on any front, because they want to return to gun reduction as the least infeasible approach. Can we decide whether to focus on risk- taking or harm prevention?197 Is there any reason to think that changes in substantive criminal law, including the criteria for affirmative defenses, will have any notable effect on lethal violence, especially when the very fact of gun prevalence creates

193. Id. at 152. 194. Id. (linking the rate of homicide to problems stemming from “territory, credibility, and quality control” when illegal markets are created or expanded). 195. See generally JAMES Q. WILSON, THINKING ABOUT CRIME (2d ed. 1983). 196. ZIMRING & HAWKINS, supra note 17, at 200–01 (contrasting the goals as differentiating between identifying dangerous individuals, and identifying guns themselves as dangerous). 197. See id. at 169–71 (noting that the conflict between punishment and deterrence policies ultimately necessitates a choice between deterring more instances of less serious crime, or deterring fewer, but more serious, crimes). WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 47 such fear in the public that tightening the rules for defensive force will be nullified by courts, juries, and prosecutors?198 Zimring and Hawkins’s overall approach is to deny the utility of single-fix or single-theory approaches, deflecting onto the other side both the belief in single causes and the related disbelief in any possible cure, even though this would surely be met by Kates and Polsby’s arguing that the pro-gun side is the one appropriately skeptical about simple explanations and fixes.199 Ultimately, however, Zimring and Hawkins implicitly signal that incremental reduction in gun availability is the most concrete thing to be done, and they offer the happy fact that the largest percentage reductions, and therefore sometimes the most politically satisfying reductions, can occur precisely where violence is highest.200 But to the extent that the anti-gun side wants to blame gun prevalence in some macro-sense, it must or should provide some answers to the question of why we have so many guns in the first place, and it would want those answers to somehow be consistent with its constitutional and cultural views. Our legal and political failures probably have not been the causes of our exceptional gun prevalence, but they may have to be pressed into service to explain our failure to curb the violent effects of this prevalence.201 Perhaps gun prevalence is a historical accident that has nothing to do with our generally benign values. Maybe the reason is that complex of values that limited gun regulation, compared to Europe, enough to allow too many guns in private hands. But this explanation raises problems: if Bellesiles is right, lack of government regulation did not cause the prevalence of guns. If it is the social and geographical nature of the Frontier, well, that seems like a moot factor now, but we are in fact still stuck with too many guns. So we have to ask why it is that we have not had enough regulation, at least in recent years. Do we lack the

198. Id. at 168–69 (observing that when killing in self-defense is criminal, yet publicly supported, there is an inevitable weakening in the state’s ability to enforce the law). Zimring and Hawkins also note that psychological and social dynamics play as significant a role as substantive criminal rules in influencing the rate of domestic criminal violence. Id. at 164 (crediting a change in social attitudes and political pressures as the prime motivating factor in shifting perceptions of domestic violence, with changes in law enforcement merely reinforcing that shift in perception). 199. Id. at 189–90, 195–99. 200. Id. at 191. 201. The anti-gun side must acknowledge that, as of now, it has won the constitutional argument. Thus, it cannot really ascribe gun prevalence to our warped constitutional views at all, because politicians can logically extend gun rights statutorily beyond Second Amendment rights or, more precisely, they have refused to use the full constitutionally-authorized extent of the police power. WEISBERGC11.DOC 3/28/2002 12:45 PM

48 HOUSTON LAW REVIEW [39:1 political will? Apparently we do, compared to Europe, but what then is the salient difference? Some have offered a surprising answer: Europe is “more Civic Republican” than we are. “Liberal” criminal justice policies in Europe—most obviously repeal of the death penalty, but possibly gun control as well—are driven by political and professional elites, despite “populist” conservative positions, at least as reflected in superficial polls.202 So our liberal anti-gun side has trouble negotiating its way through the relationship between Civic Republicanism and populism. And, at the legal level, liberals must ask whether they would be willing to give up Fourth Amendment rights to eliminate guns. How do they feel about order-maintenance policing? Are guns and violence indeed the price of limited government, with the caveat that limited government has diffused violence? One hope for constitutional consistency is to reconcile improvements in social life, however erratic, with a progressive constitutional narrative in which our constitutional ideals are gradually realized through historical struggle and acts of great political courage. The basic ideals of America and the American people are good, even if America and Americans sometimes act unjustly, and even if people acting in the name of the Constitution sometimes perpetrate terrible injustices. The basic ideals of Americans and their Constitution are promises for the future, promises that the country eventually will live up to and, once fulfilled, will confirm the country’s deep commitments to liberty and equality. As for the Second Amendment, the progressive narrative may then have to adopt the Rakove approach. But that is hard to do, especially when so much of the history of guns in America involves their use against Blacks. Of course, if we see guns as instruments of racism, we could see gun regulation as part of a grand scheme under the police and interstate commerce power to help fight off the vestiges of racism—gun control laws then become, in effect, civil rights statutes. But that avoids the fact that most Black victims of gun violence have been shot by other relatively poor Black people, which means the liberals will have to, in any event, play out some conspiracy or cause theory. Could

202. See Joshua Micah Marshall, Death in Venice: Europe’s Death Penalty Elitism, THE NEW REPUBLIC, July 31, 2000, at 12; see also FRANKLIN E. ZIMRING ET AL., PUNISHMENT AND DEMOCRACY 181–232 (2001) (discussing when a democracy should “protect itself from public opinion”); FRANKLIN E. ZIMRING & GORDON HAWKINS, CAPITAL PUNISHMENT AND THE AMERICAN AGENDA 10–15 (1986) (“[I]n most abolitionist countries, if the issue had been decided by direct vote rather than by the legislature, the death penalty probably would not have been repealed.”). WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 49 it be horrifyingly true that Black-on-Black violence is the outlet that prevents political violence? Moreover, the Zimring-Hawkins decoupling of crime and violence only exacerbates their problem with race. After all, the standard social and economic deprivation arguments that are relied on by liberals to explain disproportionate crime by Blacks in the United States tends to focus on crime, including property crime, in order to link criminal behavior as much as possible with concrete material disadvantage. That linkage becomes more difficult, empirically and morally, if violence is very different from crime, and it strains the happy constitutional narrative whereby economic justice will bring us peace. Other consistency problems abound for the anti-gun side. For example, how does it take on the anti-totalitarian question? Does it dare claim that the United States is immune to fascism? Or, if the United States is capable of totalitarianism, that totalitarianism would be uniquely invulnerable, and hence futile to oppose? Or is it that the American people would be uniquely able to resist totalitarianism non-violently? How does the anti-gun side explain the South? Of course, most liberals live in the North, so some of this is a matter of re- fighting the Civil War. Liberals obviously condemn the culture of honor, and associate it with an anachronistic Frontier mentality. But they must confront the paradox of the South and avoid casually blending Frontier and southern stereotypes, because the South is not a frontier in the sense of atomized individual autonomy. Rather, it is a deeply rooted culture with a strong sense of social context and relation. Or should the anti-gun side just evade the southern question by denying any statistical significance to southern violence exceptionalism? But to do so might require paying more attention than the anti-gun side can comfortably pay to inner-city crime and, hence, race. The anti-gun side is always rhetorically inclined to link our violence exceptionalism to our racist exceptionalism but, as noted earlier, any more specific link to race is a minefield—the Willie Horton minefield. Indeed, Zimring and Hawkins themselves are directly challenged on this point by Darnell Hawkins, in his provocative review of Crime is Not the Problem, in which he accuses them of coy and disingenuous evasion of the crime-race link.203 Darnell Hawkins wants the anti-gun side to either find a

203. Darnell F. Hawkins, The Nations Within: Race, Class, Region, and American Lethal Violence, 69 U. COLO. L. REV. 905, 906–07 (1998) (suggesting that Zimring and Hawkins ignore the fact that violence in America stretches across all of American society, reinforcing the notion of the “urban African Americans as the archetype of the violent WEISBERGC11.DOC 3/28/2002 12:45 PM

50 HOUSTON LAW REVIEW [39:1 way to show that the disproportionate link of Black men to violent criminality is false, or to frankly acknowledge and address the historical problem that Blacks have been virtually forced or induced into a greater state of criminality by our racist history.204 In effect, he challenges Zimring and Hawkins to find the right party to blame for Black violence exceptionalism and, implicitly, to reconcile that blame with their wider values. Zimring and Hawkins might be inclined to say that our violence is still mainly about sheer gun prevalence, and that sometimes a certain kind of diffuse gun availability just happens to manifest itself disproportionately in poor Black neighborhoods where guns prove surprisingly useful for short-term drug business. But beyond playing out the criminological issues, anti- gun people who are sympathetic to Zimring and Hawkins take on these issues at great risk, because they will find themselves forced to attempt consistency on some broader scale about constitutional rights and values, and constitutional narratives of progress.

VII. CONCLUDING NOTE Americans’ sense of exceptionalism is a motley collection of self-conceptions. We know for a fact that we are anomalously violent. Some lament that, but treat it as the price of our exceptional virtues. Some denounce it and see it as consistent with our peculiar, if not unique, cultural vices. Others denounce it as inconsistent with our exceptional virtues and hence disposable, though they lament the historical inertia that inhibits the disposal. Others take a weird pride, or at least some strange psychic comfort, in the perception, or the myth, that we are exceptionally or uniquely susceptible to crime.205 Perhaps it is a kind of self-congratulation or cultural narcissism. If Americans believe they are exceptionally at risk of violent harm and that, contrary to statistics, crime is always rising, they add a certain rhetorical strength to their populist rationalizations of whatever political views they hold, and a sense of historical importance to criminal offender”). 204. Id. at 909–10 (condemning Zimring and Hawkins for failing to refute the argument that the fear White people have of violent Black offenders is justified, while ignoring the effects that White fear has on the legal process). 205. Sociologists find considerable discrepancy between people’s expressed fear of, and actual vulnerability to, crime. JOHN TULLOCH ET AL., 1 FEAR OF CRIME 8 (1998), available at http://www.ncp.gov.au/ncp/Publications/PDF/NCP%2021495%20rept.1.pdf. In addition, expressed fear of crime is a weak predictor of a person’s decision to carry a gun. William B. Bankston et al., The Influence of Fear of Crime, Gender, and Southern Culture on Carrying Firearms for Protection, 31 SOC. Q. 287, 288–89 (1990). WEISBERGC11.DOC 3/28/2002 12:45 PM

2002] THE SECOND AMENDMENT 51 whatever social insecurities they suffer. American violence exceptionalism remains both an intellectual puzzle and a statistical minefield. This is not surprising, because the same can be said for our general understanding of crime rate changes.206 And so both sides—or I should say all sides—in the gun debate can selectively exploit these empirical and cultural mysteries in seeking consistency in their philosophical, political, and constitutional arguments. Throughout this paper, but especially at the end, I admittedly ask a lot of questions that might seem rhetorical. My excuse is that this paper has been, indeed, very much about rhetoric—not in the stylistic sense, but in the sense of describing the successes and failures of advocates in the gun debate to fashion a cogent and consistent way of discussing the issue, while avoiding the intellectual and moral embarrassments and hypocrisy that this subject all too often encourages.

206. For a survey of conflicting explanations of the most dramatic recent change, see Jeff Grogger, An Economic Model of Recent Trends in Violence, in THE CRIME DROP IN AMERICA 266 (Alfred Blumstein & Joel Wallman eds., 2000) (discussing the “super- predator” hypothesis, the proliferation of guns theory, and the emergence of crack as a few of the hypotheses offered to explain the increase in violent crimes from the late 1980s to the early 1990s).