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Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition David B

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Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition David B Maryland Law Review Volume 56 | Issue 2 Article 5 Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition David B. Kopel Christopher C. Little Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Second Amendment Commons Recommended Citation David B. Kopel, & Christopher C. Little, Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition, 56 Md. L. Rev. 438 (1997) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol56/iss2/5 This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. COMMUNITARIANS, NEOREPUBLICANS, AND GUNS: ASSESSING THE CASE FOR FIREARMS PROHIBITION DAVID B. KOPEL* CHRISTOPHER C. LITTLE** INTRODUCTION .................................................... 439 I. THE COMMUNITARIAN NETWORK AND DOMESTIC DISARMAMENT ............................................. 441 A. The CommunitarianAgenda .......................... 441 B. The CommunitarianMovement ........................ 443 C. The Case for Domestic Disarmament ............... 445 II. THE FEAsIBILITY AND COMMUNITARIAN IMPLICATIONS OF DOMESTIC DISARMAMENT .................................. 450 A. Guns and Other Dangerous Items ...................... 454 1. Noncompliance of Law Enforcement Personnel ....... 456 2. Resistance ....................................... 458 3. Overwhelming and Ruining the CriminalJustice System ........................................... 460 4. "Nasty Things May Happen" Armed Resistance .... 461 B. Country, Court, and the Crisis of Legitimacy ............ 469 C. Summary ............................................ 474 III. VIRTUE AND COMMUNITY MILITIAS ........................ 476 A. The Militia and Republicanism ........................ 477 B. Toward Well-Regulated Militias ........................ 487 1. What "A Well-Regulated Militia" Is Not ............ 487 2. The Civilian Marksmanship Program .............. 490 3. Other Marksmanship and Safety TrainingPrograms . 491 4. Using the Militia to Restore Order.................. 494 5. Safety Education in Schools ........................ 499 6. Virtue Is Good ................................... 501 IV. GUNS AND PUBLIC SAFETY ................................ 502 V. THE RIGHT GUARANTEED BY THE SECOND AMENDMENT: A CRITIQUE OF DOMESTIC DISA m4ALFvrS LEGAL ANALYSIS . 510 * Research Director, Independence Institute, Golden, Colorado. B.A., Brown Uni- versity; J.D., University of Michigan. ** Senior Fellow, Independence Institute. BA, John Brown University; MA, Denver Seminary. The authors would like to thank Eugene Volokh, Don Kates, Joseph Olson, Glenn Harlan Reynolds, Bob Dowlut, Paul Blackman, and William Tonso for their helpful criti- cism. Errors are the authors' alone. 1997] COMMUNITARIANS, NEOREPUBLICANS, AND GUNS 439 A. The Origins of the Second Amendment .................. 516 B. The United States Supreme Court and the Right to Keep and Bear Arms ....................................... 525 1. Dred Scott v. Sandford and Its Aftermath ......... 526 2. United States v. Cruikshank ..................... 528 3. Presser v. Illinois ............................... 530 4. M iller v. Texas .................................. 531 5. Robertson v. Baldwin ........................... 532 6. United States v. Miller .......................... 532 7. Lewis v. United States .......................... 537 8. United States v. Verdugo-Urquidez .............. 538 9. The Modern Fourteenth Amendment Cases .......... 539 C. Lower Federal Courts ................................. 542 1. Farmer v. Higgins .............................. 542 2. Quilici v. Village of Morton Grove .............. 544 CONCLUSION ................................................... 551 INTRODUCTION It is high time for the federal government to outlaw gun posses- sion by anyone except the police and the military, and to round up all firearms currently in private hands. Millions of Americans think so, but even the most aggressive of America's gun control groups have not been willing to advocate such a policy. Into the breach has stepped the Communitarian Network, arguably the most influential think tank in Washington. In a lengthy position paper, The Case for Domestic Disarmament(Domestic Disarmament),' the Communitarian Net- work presents a forceful law-and-policy case for a gun-free America. Domestic Disarmament is noteworthy because it is almost the only scholarly document arguing at length for confiscating all guns,2 rather than merely outlawing the future production of certain "bad" guns (such as handguns and so-called "assault weapons").' Domestic Dis- armament is particularly important because it is a product of the Com- munitarian Network, the think tank that, far more than any other, has the ear of President Clinton and many other leading Democrats (and 1. AMirrAi ETZIONI & STEVEN HELLAND, THE CASE FOR DOMESTIC DISARMAMENT (1992) [hereinafter DOMESTIC DIsARMAMENT]. 2. Id. at 9. Domestic Disarmament is willing to make some concessions to gun collectors and hunters. See infra note 47 and accompanying text. 3. This Article uses the term "assault weapons" as gun prohibition advocates use it. This usage, however, is a misnomer. For a critique of this misuse of the term, see David B. Kopel, Rational Basis Analysis of "Assault Weapon"Prohibition,20J. CONTEMP. L. 381 (1994). 440 MARYLAND40 LAW REVIEW [VOL. 56:438 some Republicans).4 Moreover, Domestic Disarmament offers an en- tirely new vantage point from which to view the firearms issue-from the communitarian context, in which the individual's responsibilities to society are seen as more important than the unlimited exercise of rights.5 This Article evaluates and responds to Domestic Disarmament and the Communitarian Network's gun prohibition agenda. In addition to discussing Domestic Disarmament,this Article considers David C. Wil- liams's Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment,6 which calls for a somewhat different communitarian ap- proach to gun policy. Williams argues that (1) the Second Amend- ment poses no impediment to any form of gun control on individuals,7 and (2) in the long term, the government should revive the "well regulated Militia"' and encourage citizen proficiency with arms and participation in communal defense organizations.9 Part I of this Article provides an overview of communitarianism and the Communitarian Network and summarizes the argument of Domestic Disarmament. Part II inquires into whether domestic disarma- ment is enforceable and what communitarian problems may be raised by enforceability issues. Part III sketches a variety of possible solutions to the American gun dilemma, including the communitarian militia proposals of Williams." Part IV briefly reviews the contribution that firearms ownership may make to public safety, and Part V closely scru- 4. See infra notes 33-35 and accompanying text. 5. Cf The Communitarian Network, The Responsive CommunitarianPlatform: Rights and Responsibilities, reprinted in RIGHTS AND THE COMMON GOOD: THE COMMUNITARIAN PERSPEC- TIVE 11, 19 (Amitai Etzioni ed., 1995) [hereinafter Platform] (contending that "each mem- ber of the community owes something to all the rest, and the community owes something to each of its members"). 6. David C. Williams, Civic Republicanism and the Citizen Militia: The Terifying Second Amendment, 101 YALE LJ. 551 (1991). 7. Id. at 587-88. Williams contends that an individual right to own arms was "a periph- eral issue in the debates over the Second Amendment. This secondary status is critical because . under modem conditions an individual right to arms is positively counter- productive to the goals and ideals implicit in a collective right." Id. 8. The words "well regulated Militia" come from the text of the Second Amendment, which states in its entirety: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II. 9. Williams, supra note 6, at 607-08. Williams states: "The most obvious way to secure the functions served by the old militia would be to reconstitute a universal militia along republican lines." Id. at 607. As we detail below, Williams is not advocating the sort of independent militias that have been so much in the news recently. See id. at 607-14; see also infra notes 210-224 and accompanying text. 10. See infra notes 210-224 and accompanying text. 1997] COMMUNITARIANS, NEOREPUBLICANS, AND GUNS tinizes Domestic Disarmament'sconclusion that the Second Amendment presents no barrier to firearms confiscation."1 For too long, the American gun control debate has avoided the most fundamental issues. The progun and antigun lobbies both agree that there are "good" gun owners and "bad" gun owners; the main issues concern drawing a line between the two and determining what kinds of measures should be used to keep the two groups separate. In addition, the antigun lobbies argue that there are good guns (many types of rifles and shotguns) and bad guns (handguns and assault weapons) and that no gun control policy should deprive good Ameri- cans of their good guns. 2 Nevertheless, none of the major policy groups participating in the American gun debate argues, as does the Communitarian Network, that America's
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