U.S. Intellectual History Blog

Making Sense of the Horrific

Since Friday, I’ve been reading all I can about guns. Like most of you, this is how I make sense of that which defies explanation. With that in mind, I’d like for this post to serve as a clearinghouse on articles about the history, culture, and politics of guns in the United States. Please share any and all that you have found useful, enlightening, smart, or infuriating. I am particularly interested in four different types (none of which are exclusive from the others). 

1) Essays that explain the historical evolution of how the Second Amendment has been interpreted. This short New Yorker piece by Jeffrey Toobin is a good example.

2) Articles about the history and politics of the NRA–essays that elaborate on a short comment that Nils Gilman made on my Facebook page yesterday: “The fundamental thing to understand about the NRA is that it’s not a rights lobby, it’s an industry lobby for gun manufacturers. They won the legal/constitutional debate ages ago, but want to create conditions that make people buy more guns. From that perspective, events like the Sandy Hook massacre are a feature rather than a bug in the strategy.”

3) Articles on the culture of guns in America. I have two such samples in mind here, the first by Aaron Bady at The New Inquiry, on the fetish of guns and the fetish of gun control, the second from a 2001 issue of The Baffler.

4) Essays on the broader philosophical implications of how we think about guns in the United States. I don’t have any example articles in mind, but my desire to read more of this type of analysis was inspired by something Varad Mehta wrote on Facebook yesterday, responding to a National Review article that argued, predictably, more guns was the solution to gun massacres: “I could have sworn that the whole point of a social contract was to turn society/the political community in its entirety into a ‘gun-free zone.’ By that I don’t mean that under the social contract you surrender your right to bear arms and defend yourself (although Hobbes would disagree). Rather, you surrender the necessity and obligation of having to bear arms to defend yourself against all your fellow men every moment of the day. The purpose of the social contract is to ensure that you don’t have to bear arms if you don’t want to because you don’t have to. So when someone says that the solution to all these mass shootings is to allow guns everywhere, they are implying, if not avowing explicity, that the social contract has broken down and that we have returned to the state of nature. The fact that some in this debate seem perfectly willing to accept such a state of affairs is to my mind the grossest, most offensive sign of their moral bankruptcy.”

(Note: If it seems all of the articles I link to swing in one direction, well, guilty as charged. That does not mean the articles you link to in the comments section need to do the same.) 

22 Thoughts on this Post

  1. On #4, the NYT blog on philosophy, “The Stone,” is working over the gun topic this week. Here’s the first entry, posted yesterday. As a bonus, here are my reflections and extensions on that piece. I put those reflections on my personal blog because I was fearful of “politicizing” our space (see Ben’s reflection yesterday on the history of that loaded term). – TL

  2. I’d also add now that the “willing[ness] to accept such a state of affairs” is also a sign of cowardice and surrender: that either you believe it’s impossible to change it, or that you don’t have the guts to oppose it, even philosophically if not practically. On that score I recommend Firmin Debrabander’s essay, “The Freedom of an Armed Society,” on the NYT‘s philosphy blog, “The Stone.”

    http://opinionator.blogs.nytimes.com/2012/12/16/the-freedom-of-an-armed-society/

    As for the Second Amendment, I’ve always believed it has guaranteed an individual right to bear arms. But that has mostly to do with my belief that rights can only inhere in individuals, and less to do with my views on the amendment itself. To my mind, to speak of “collective rights” is to utter a non sequitur. But the nature of rights is a discussion for another day. The nature of the Second Amendment, though, can be debated with no hesitation or compunction today.

    I think there is probably a (continuing) discussion to be had here about the nature of modern conservatism, too. You would think (I sure did, obviously!) that conservatives would value protecting civil society and the social contract. But apparently not, at least for those advocating guns everywhere.

  3. Here, Here! It seems conservatives want us to return to the 1850s and not 1950s? That conservation of freedom trumps conservation of life? And this observation from someone who lives on the same street that Ted Nugent grew up on!

  4. The “no gun control position as lapse into Hobbesian state of nature” argument has also been made at the American Conservative website (generally a paleoconservative venue):

    http://www.theamericanconservative.com/jacobs/two-thoughts-about-guns-risks-and-safety/

    While I’m sympathetic to the emotion behind such an argument, I don’t think a response via general philosophy is going to be very helpful in this debate. After all, one could just as easily claim that our social contract should acknowledge the existence of evil in the world, and that a sensible response to this should be a social contract that encourages us *all* to be armed, since the state cannot respond as quickly in these situations as we might like.

    I wouldn’t support this argument, but it’s a coherent argument that doesn’t rely on any desire to return to a “state of nature.” It is deeply skeptical about our ability to remain totally apart from the state of nature, but it doesn’t for a second deny that we need a social contract as a response. So my reasons for opposing it would have to be more empirical than philosophical: we *aren’t,* empirically, that close to a state of nature, and/or our social contract *can,* empirically, protect us against this kind of violence.

  5. May I recommend the work of Saul Cornell. Here is a good introductory primer to his thought. http://www.thedailybeast.com/articles/2012/12/18/gun-rights-advocates-should-fear-history-of-second-amendment.html

    In his fine monograph entitled A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control he argues that gun ownership was a “civic right” or “obligation.” I also recommend his essay in the Pasley, et al. compilation entitled Beyond the Founders, and a quick JSTOR search of his work will provide you with a veritable cornucopia of reading.

  6. Varad writes: “I think there is probably a (continuing) discussion to be had here about the nature of modern conservatism, too. You would think (I sure did, obviously!) that conservatives would value protecting civil society and the social contract. But apparently not, at least for those advocating guns everywhere.”

    AGE OF FRACTURE speaks to this. Rodgers doesn’t deal with guns, but he certainly could have used the shifting conceptualization of the Second Amendment as further evidence for his thesis that fewer and fewer Americans think in terms of structures (civil society and the social contract being two such structures).

  7. There are plenty of legal scholars who would suggest that Cornell’s interpretation of the Second Amendment is incorrect. He also ignores (at least in that Daily Beast essay) the history that the American colonists had inherited from England. That history offers conflicting meanings for the right to keep and bear arms. One could argue (as some have) that the Bill of Rights recognizes pre-existing rights and incorporates them into the new polity created by the social contract authorized by the Constitution. Cornell’s view is but one in the debate; it is hardly dispositive or unanimous.

  8. The more relevant question for Mr. Mehta is how many people with solid intellectual history credentials would support the individual rights view. As Justice Breyer noted when talking about Heller, historians reject Scalia’s view about 8 to 1.

  9. This comment was sent to me by Saul Cornell (who teaches legal history at Fordham Univ), directed at Varad Mehta:

    It is certainly true that some legal scholars support the individual rights view. The fact is the vast majority of historians reject the notion that a broad individual right existed under English law. If you look at the Historians Brief in Heller and the English/Early American historians brief in McDonald v. City of Chicago you will find that most English and early American history reject the individual rights view.

    http://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_08_1521_RespondentAmCuEnglishHistoriansnew.authcheckdam.pdf

    The question for any good intellectual historian is how influential a particular view of the right to bear arms was in 1791. The big problem for the individual rights view is that it can’t account for much of the evidence. How can one explain the right “not to bear arms” in the first State Constitutions which also allowed you to buy your way out of bearing arms? If the right is about individual self defense how could you buy a replacement? It is utter nonsense. The phrase “bearing arms” was most often used in the context of military service. In Heller Scalia said that was only true if the phrase were modified by the word “against”. Well, there are plenty of other examples that show that can’t be right– those “capable of bearing arms,” those “eligible to bear arms” and of course the example of being “religiously scrupulous about bearing arms.” Historian Nathan Kozuskanich tracked every use in the print culture of the Founding era and found that military uses were something like 95% of all occurrences. Finally, there is the problem of the preamble. The rule in the 18th century was clear about preambles. If a term or phrase in the text could be read in more than one way, the preamble was the tie breaker. The proper reading of the Amendment is the militia one. Self defense was a right at common law, but not constitutionalized in the 18th century. The view of the right had become an individual right in many places by the Jacksonian era. (Akhil Amar is clearly wrong about this not happening until Reconstruction.) As a matter of intellectual history the case for the individual rights view is very weak. If you use an originalist method anything is possible given that originalism lacks a clear and rigorous approach to history.

  10. http://law.bepress.com/cgi/viewcontent.cgi?article=8710&context=expresso

    “Debunking the individual-rights “hijackers” of the Second Amendment, Professor
    Cornell refers to “the often-quoted passage describing it [the Second Amendment] as the
    ‘palladium of liberty’” at least five times,
    but strangely fails to provide the actual quotation or to acknowledge its contents. It would be worthwhile to do so at the outset in order to determine the extent of the constitutional hijacking by scholars who read the
    Second Amendment as protecting individual rights…”

    Etc.

    • This essay cited above by the NRA’s attorney of choice, Stephen Halbrook, was eventually published in 3 Tenn. J.L. & Pol’y 183, 183-218 (2007). Yes that’s right the Tenn Journal of Law and Public Policy which was ranked as the 826th best law review in America– yes not even 825th but 826th– this makes this only slightly better than a vanity publication or blog post. If you want to see Cornell’s take on Tucker, I suggest you look at his essay in the Northwestern Law Review which was ranked 15th best in the nation. (no law review is peer reviewed– but that’s a whole other issue.) The passage in question when read in context talks about the political role of the right to bear arms as check on a standing army. It does talk about self defense as the first of law nature, but anyone with even a little understanding of natural law and common law would realize that you trade the natural right of self defense for the common law right of self defense once you enter civil society.
      http://www.law.northwestern.edu/lawreview/Colloquy/2009/13/index.html

    • “…anyone with even a little understanding of natural law and common law would realize that you trade the natural right of self defense for the common law right of self defense once you enter civil society.”

      No. That is social contract, not natural law and unalienable rights.

      “Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution?”—James Wilson, Founder

      As for the dismissal of Halbrook’s fisking of Prof. Cornell via an attack on the law review it appeared in, shame shame, sir.

    • If one looks at American law on the issue of self defense in the Founding era it is clear that the common law prevailed, not the right of self defense as it existed in the state of nature.

      Legal argument depends on authority–law reviews do not use peer review– which presents problems for how one evaluates the relative weight one ought to accord to an author. Unless you think Gordon Wood, Jack Rakove, or Pauline Maier and Stephen Halbrook are equally valid sources for understanding the Founding era, the fact that Halbrook could not get his essay published in a major law review is certainly relevant. The more important point is that Halbrook fails to contextualize the Tucker quote. Tucker clearly frames the right to bear arms in a political context viewing it as a check on a standing army. Simply quoting James Wilson out of context is not a valid application of intellectual history method. In intellectual history– context is all important.

  11. …the fact that Halbrook could not get his essay published in a major law review is certainly relevant.

    No. Such an attack is sophistic. That you yourself write anonymously, sir, is far more relevant, although I’d hardly use that fact against your credibility.

    ;-P

    The more important point is that Halbrook fails to contextualize the Tucker quote.

    Wrong. Halbrook pins Prof. Cornell’s work to the wall. More to the point however, is that this intellectual history blog gets to read that rebuttal rather than take Prof. Cornell as unrefuted. And of course make up their own minds.

    Simply quoting James Wilson out of context

    Wrong. And it’s sophistic and unprincipled to make such a charge without backing it up. Sir.

    is not a valid application of intellectual history method.

    Who are you again? Were I you I’d write anonymously too. You are completely wrong about “common law” vs. natural law in America. You sound like Scalia, just another legal positivist. In the American scheme, men

    “are endowed by their Creator with certain unalienable rights [and]…That to secure these rights, governments are instituted among men.”

    The purpose of government is to secure natural rights. Where positive law subsumes natural rights, we got a problem, sir.

  12. The intellectual debate of the Founding era was often done by anonymous contributions so I am not sure what your point on this issue really contributes. My point is that Halbrook does not count as a major authority by the criteria lawyers use to rank such things.

    Intellectual historians must distinguish between the typical and the exceptional in any era. The key question from the point of view of an intellectual historian remains how to understand the range of views of Americans on the status of natural rights before and after one enters civil society. Wilson represents one point of view and given that he was among the most original thinkers of his day, I am not sure his understanding was typical–although obviously significant. I would argue that the more typical view in the era was closer to this one:

    “The states of America have respectively, by civil compacts voluntarily and solemnly entered into covenant for the defence of liberty, life and property. The subjects in each state have, voluntarily, given up some of their natural rights, that they might be secured in the enjoyment of those, that they would retain: and the public interest and welfare being the end of this civil combination, those that have entered into covenant, have solemnly engaged to be governed by the voice of the major part, in all administrations of government corresponding with their several compacts.”
    [AMICUS REPUBLICAE], Address to the Public, Containing Some Remarks on the Present Political State of the American Republicks, etc. exeter, 1786

    Halbrook and other legal scholars don’t understand the importance of the approach taken by Bailyn and Wood and why such issues matter a great deal to how you use sources to construct an argument. Tucker’s discussion of self defense was clearly framed around the militia/standing army issue. How do you or Halbrook get around that problem? Saying that self defense is a natural right does not tell us how you get to the right to bear arms or the right of individual self defense under common law. Blackstone’s discussion treats the English Declaration of Rights and the common law right of self defense in two different parts of his Treatise. Tucker’s notes to these sections also point to different sources. One to the Second Amendment and the other to Hawkins, a common law authority.

  13. Wilson represents one point of view and given that he was among the most original thinkers of his day, I am not sure his understanding was typical–although obviously significant. I would argue that the more typical view in the era was closer to this one:

    OK. It’s the arguments from authority or lack of same [historians agree 8-to-1, Halbrook is published in a non-elite law review] that have been the problem here. Further, in my opinion, Prof. Cornell does not get the better of it. The gentle reader shall judge for herself.

    As for the constitutional aspects, since no attempt was made to disarm the populace in the Founding era, we have no facts on the ground, only in the ether. Your anonymously published essay seems to open up the further question of federalism, which is fine. Even Justice Scalia allows that the states may restrict firearms.

    As to the nature of rights, I’ll go with Alexander Hamilton against the Hobbesians. [“The Farmer Refuted.”] I think we Americans are making a grave error of late turning ourselves into Europeans.

    “Government is founded not on force, as was the theory of Hobbes; nor on compact, as was the theory of Locke and of the revolution of 1688; nor on property, as was the assertion of Harrington. It springs from the necessities of our nature, and has an everlasting foundation in the unchangeable will of God.”
    —James Otis, 1764

    Well, chill the God bit if necessary, but the natural law part still holds.

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