Control: Exposing the Truth About Guns (10 page)

—JEFFREY TOOBIN
,
December 18, 2012

If constitutional law were a game of poker, Jeffrey Toobin would be a world champion. He is able to easily bluff when his hand is terrible, and he can do it with complete seriousness and conviction. He’s also sly. If the game isn’t going in his direction, he’ll look for some loophole he can use to change the rules.

I have nothing against Toobin personally, but I do have something against revisionist history. You’ll notice, for example, that Toobin specifically used the phrase “For a hundred years” at the start of that quote, meaning that he’s talking about the time from 1908 through 2007. But the Second Amendment was adopted in 1791. What happened to those 117 years from 1791 through 1907? Should we just pretend they don’t exist? Toobin doesn’t say.

No wonder. From the ratification of the Second Amendment through the end of the nineteenth century, nearly everyone—American courts, legal scholars, and the public—understood that
the Second Amendment protects an individual right to keep and bear arms. The concept of a “
a well-regulated Militia” was very important, but it was understood that a militia could exist only if the people from whom it would be drawn possessed their own arms and had plenty of opportunity to use and practice with them.

But let’s put all of that aside for a moment and play by Toobin’s rules. We’ll assume that the first 117 years after 1791 don’t count and we’ll look
only
at the century before the landmark 2008
Heller
decision.

Toobin believes that the Second Amendment protects a right belonging to state governments rather than to individual citizens. This theory was popular for part of the twentieth century, especially among uninformed talking heads and those with such a white-hot hatred for gun ownership that they could not fathom the Framers’ wanting individuals to own arms. It was not, however, very popular with the Supreme Court.

Let’s start by taking a closer look at
Heller.
The five-justice majority (led by Justice Scalia) followed what is called the “standard model” of the Second Amendment—essentially that it protects the right of law-abiding persons to have firearms for legitimate purposes, especially for self-defense.

The four dissenting justices (led by Justice John Paul Stevens) instead utilized what is called the “narrow individual right” theory, which says that the Second Amendment protects an individual right, but only in connection with service in a well-regulated militia. The
Heller
dissenters did not clarify the extent of that right, except to say that they believe it does not include owning a handgun for personal self-defense.

Justice Stephen Breyer wrote a dissent that was joined by the three other dissenting justices: “[B]ased on our precedent and today’s opinions, to which I believe the entire Court subscribes: (1)
The Amendment protects an ‘individual’ right—i.e., one that
is separately possessed, and may be separately enforced, by each person on whom it is conferred.”

In other words, all nine justices, including those who were not, as Toobin put it, “Republican appointees,” agreed that the Second Amendment protects some sort of individual right. Yet, according to Toobin, this was apparently the first time in the last century that anyone had interpreted it that way. That just doesn’t add up. So let’s take a look at the history and try to find the truth.

First, a decision in Toobin’s favor—though it was just outside of his hundred-year window. In
Salina v. Blaksley
in 1905, the Kansas Supreme Court ruled that the right to arms in the Kansas Bill of Rights meant only that
the state militia, in its official capacity and while in actual service, could not be disarmed. The court also said that the Second Amendment meant the same thing. The problem is that no other court adhered to the
Salina
approach until 1935, when federal district judge Halsted Ritter (who was later removed from office) wrote that the Second Amendment “refers to the militia, a protective force of government;
to the collective body and not individual rights.”

The U.S. Supreme Court’s one major Second Amendment case of the twentieth century was
United States v. Miller
in 1939. The Court essentially ruled that only weapons useful to the militia are protected by the Second Amendment, but the Court did
not
say that individuals have a constitutional right to possess those protected weapons
only
while serving in the militia.

Confused yet? It gets worse before it gets better.

After
Miller,
some lower courts did come close to adopting Toobin’s “states’ right” theory. In 1942, for example, the federal Third Circuit Court of Appeals decided that the Second Amendment “was not adopted with individual rights in mind, but
as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.”
This seems to imply that the right to arms is truly collective, since this decision implied that states could essentially supersede federal law by creating their own militia-based firearm laws. That would mean that Texas could declare all able-bodied men to be part of their militia and arm them with machine guns so that they would be ready to fight the feds. The Third Circuit apparently did not recognize the implication of its theory, and neither does Toobin.

The federal Gun Control Act of 1968 greatly expanded federal gun laws. As a result, defendants (usually convicted felons) who had been arrested for gun possession began to be marched in front of federal courts. Since the guilt of these defendants was not usually in question, attorneys sometimes resorted to the argument that the gun ban itself violated the felons’ Second Amendment rights. The lower courts rejected these arguments, sometimes declaring that the Second Amendment protects a state’s right, and sometimes that it protects a “collective” right.

The New Jersey Supreme Court was the first to use the actual term
collective right,
when, in 1968, it upheld the state’s new gun licensing statute in
Burton v. Sills.
The New Jersey court maintained that the Second Amendment “was not framed with individual rights in mind. Thus it refers to the collective right ‘of the people’ to keep and bear arms in connection with ‘a well-regulated militia.’ ”

With the legal history of the Founding era and the nineteenth century having been forgotten, the opinions of judges like Halsted Ritter were presented as mainstream consensus, rather than as the outliers they really were. Although regular Americans continued to believe that
the Constitution guaranteed their individual right to own firearms, controllists were sensing blood in the water and began to push the collective theory hard. Inside the self-important, elitist Manhattan cocktail party circuit, the term
collective
right
was the new go-to attack on anyone who dared raise a hand in support of their natural and constitutional rights.

But not in the Supreme Court. In the 1990 case
United States v. Verdugo-Urquidez
(which actually involved a Fourth Amendment question) Chief Justice William Rehnquist’s majority opinion clarified that “the people” whose right to arms is protected by the Second Amendment are “persons.” Not—as Toobin claims—state governments who want to have state militias.

Other Supreme Court opinions in the time between
Miller
(1939) and
Heller
(2008) also recognized an individual right. For example, in
Poe v. Ullman
(1961), Justice John Harlan’s celebrated dissenting opinion analyzed the individual “liberty” that the Fourteenth Amendment protects from state government infringement. Among the many parts of that “liberty” were “the freedom of speech, press, and religion;
the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.”

Justice Harlan’s language about the Second Amendment was later
quoted with approval in several subsequent Supreme Court cases, including Justice Sandra Day O’Connor’s opinion for the Court in
Planned Parenthood v. Casey
(1992);
in both the majority and the dissent in
Moore v. East Cleveland
(1977);
and in Justice Potter Stewart’s concurrence in
Roe v. Wade
(1973).

In other words, Toobin has history wrong. There were plenty of opinions over the last century—from very reputable people—that the Second Amendment protects an individual right. By the time
Heller
rolled around, the “collective right” theory was so outdated that only one of the sixty-seven amicus briefs filed in the case (a brief that counted Janet Reno and Eric Holder among its authors) referenced the concept. The justices themselves dismissed the idea out of hand—leaving Toobin alone to revise history so that it fits his own conceptions.

“But there is a more fundamental problem with the idea that guns actually protect the hearth and home. Guns rarely get used that way. In the 1990s, a team headed by Arthur Kellermann of Emory University looked at all injuries involving guns kept in the home in Memphis, Seattle and Galveston, Tex. They found that these weapons were fired far more often in accidents, criminal assaults, homicides or suicide attempts than in self-defense. For every instance in which a gun in the home was shot in self-defense, there were seven criminal assaults or homicides,
four accidental shootings, and 11 attempted or successful suicides.”

—NEW YORK TIMES,
editorial, February 2, 2013

Totally false.

Unfortunately, this Kellermann study (which, by the way, is twenty years old) has received widespread attention and has probably scared lots of people away from keeping a gun in the home for self-defense.

As with any study that is often cited by people trying to score political points, it’s helpful to take a step back and ask some commonsense questions about the approach. Here is how it worked: After someone was killed in or near their home, Kellermann and his coauthors would go
ask their relatives if a gun had been kept in the home. If the relative said yes, researchers then simply
assumed
—yes,
assumed
—that it
must have been the very same gun that was used in the killing.

In very few cases was the researcher able to actually trace the homicide to the gun kept in the house. Out of the 444 cases they analyzed, there were only eight instances in which “the investigating officer specifically
noted that the gun involved had been kept in the home.” (If anything, this research ought to be interpreted as showing that guns kept at home are seldom used against the owners.)

The Kellermann study—which did not look at any other defensive gun uses (for example, incidents where a gun was effective after merely being brandished) except those where someone was shot—also compared the data on homicide victims with a so-called control group of similar individuals living within a mile of the victim. Researchers offered these folks ten dollars and then asked them whether they had guns and whether they had suffered any homicides. Unsurprisingly, researchers found that there were fewer homicides and fewer guns in the control group than in the other group. There was, in other words, a correlation between gun ownership and homicide.

Kellermann and his coauthors took this to imply that gun ownership
causes
more homicide. But, remember, the first group had specifically been chosen because a homicide had occurred.
These were not randomly selected households.
It is very likely that this group of homicide victims faced an increased risk of death compared to other similar people—which may very well be why they chose to have a gun at home in the first place.

Using this same logic, one could easily interview people who’ve been shot while wearing a bulletproof vest and conclude that these vests are very dangerous. Or you could interview people who died after calling 911 and conclude that calling the police often leads to death. These comparisons are idiotic—you are selecting a group of people who are already at risk.

Kellermann and his coauthors are medical doctors. So, for the fun of it, let’s use their incredibly irresponsible method to “prove” that hospitals are dangerous places.

To start, we’ll collect data just as these researchers did. We’ll get a list of all the people who died in a particular county over the period of one year, and then we’ll ask their relatives about whether those people had been admitted to a hospital during the previous year. Next, we’ll find people of similar demographic (age, sex, race,
neighborhood, etc.) characteristics who are still alive and we’ll ask them whether they’d been to a hospital over the last year.

What do you think we might find? In all likelihood we would expose a very strong correlation between the amount of time one spends in a hospital and the probability of subsequently dying. But would that be evidence that hospitals kill people or would it be evidence that you are a really stupid researcher?

It obviously makes no sense to compare the life expectancy of a sick person who felt the need to go to the hospital with that of a healthy person. To get a fair result you would need to compare two
equally sick
people where one goes to the hospital and the other does not. Likewise, to get a fair result in the gun study, a researcher would need to select two similar groups beforehand, give guns to one group but not the other, and then track each of these groups over a significant period of time. That, of course, is how medical trials are done.

Putting aside the Kellermann “study,” there are other important considerations to make on this topic, such as government-imposed restrictions on the storage and use of guns in the home.

Two economists, John Lott and John Whitley, have studied in depth the effects of government-imposed restrictions on the use of guns. They found that new policies meant to lower gun ownership rates, or new “safe storage” rules that forced people to lock up their guns,
were followed by criminals becoming more likely to attack people in their homes and that those attacks were more likely to be successful. The abstract of their study, published in 2001 by the
Journal of Law & Economics,
sums up their findings well: