American Gun and Book Reviews
by
Brian Anse Patrick
Guns Across America: Reconciling Gun Rules and Rights. Robert
Spitzer, New York: Oxford University Press, 2015, 277 pages.
I am uncertain if this is a serious attempt at a scholarly
book, or merely a dashed off effort in the recent literary counterattack on the
successful advances of the American gun rights movement over the last several
years.
In either case we can be fairly certain that owing to its
publisher, the prestigious Oxford University Press, it will find its way onto
the shelves of academic libraries where it will serve to dis-inform many an
earnest undergraduate essay on gun control.
Professor Spitzer builds on sands of assumption with
structural materials that often appear substandard. His book is well organized
but poorly argued, his cites/sources often questionable.
An example, in a chapter on so-called Stand Your Ground
Laws, Spitzer reproduces a table from an Urban Institute blog that purports to
show patterns of racial discrimination in justifiable gun homicides in Stand
Your Ground versus Non Stand Your Ground states. Results reported in the cells
of the table are percentages. No sample or subsample sizes are reported.
Regarding operational definitions of terms, a crucial matter in social science,
there are none. It is unclear if the table includes—or not—shootings by police,
or how many shootings there may be. In other words there is no way to gain any
idea whatsoever about the magnitude of the phenomenon being alleged. Whether
Spitzer is talking about 10, 100, or 1,000 homicides is unknowable. This is not
how serious social scientific findings are reported. Generally, stand-alone
percentages signify a perceptual scam, an attempt to raise funds or alarm; if
the frequency of some phenomenon increases from one to three, then a 150
percent increase is reported.
The author also relies on sources such as the reflexively
antigun group Violence Policy Center, which is more public relations office
than research center. (In addition to sensationalistic journalism, which it
does well, VPC also frequently plays the percentages game.) To the semiotic
ingenuity of VPC staff we owe the popularization of perceptual red herrings
such as assault weapon, gun show loophole
and universal background check, terms
that seem to mark the cognitive limits of the uniformed.
Spitzer seems to treat VPC and similar organizations as
sources of revealed truth. Evidence of this slant are comments on how the “gun industry” has “poured money into NRA coffers.”
And, “NRA sealed its decades–long political hold on the gun industry when it
spearheaded enactment of national legislation that provided the gun industry
with unique protection from lawsuits, the Lawful Commerce in Arms Act of 2005.” But Spitzer doesn’t quite get it. Sure, the
gun industry gives money to NRA, but NRA’s finances derive largely from its
five million members. NRA is not a corporate lobby, but a citizens group. NRA
is not the gun industry, which has its own lobby. The 2005 Act was created more
to protect would be gun owners when anti-gun groups adopted a strategy of
frivolous (but expensive) lawsuits in an attempt to bankrupt the industry, and
destroy Second Amendment rights from the supply side. Spitzer seems to confound
these things, although appears unaware of the latter facts. Myself, I use VPC’s
polemical analyses as examples of equivocal language, tendentiously selected
data and ill-defined terms when I teach propaganda/persuasion classes. They
provide excellent examples of bad.
Spitzer also seems to misapprehend the nature and origins of
Stand Your Ground laws, even while discussing them at length. In his chapter,
“How Did We Get From Self Defense to Shoot First?” he seems to think that these
laws mean that anyone who feels threatened can kill someone. No, absolutely
not. The recent stand your ground laws have changed nothing in basic
self-defense law. Commensurate force is justified only when a serious imminent threat to life or person exists, and
the person defending himself must be in a place or situation in which he has a
right to be, e.g., an armed robber cannot claim he shot his victim in
self-defense because the victim resisted. The standard applied is that of the reasonable person, i.e., what would a
reasonable person do under the same circumstances? This does not equate with
“shoot first.” There is also room for reasonable error, e.g., a lethal response
to a realistic toy gun. Spitzer correctly understands that the George
Zimmerman/ Trayvon Martin case was not an incident of SYG, although he quotes a
vacuous comment by President Barack Obama about how if Zimmerman stood his
ground then Martin also stood his, which suggests that Spitzer stands not alone
in his misapprehensions. This homicide was justified on the grounds that Martin,
who was physically larger and more powerful than the diminutive and apparently
idiotic Zimmerman, was pounding Zimmerman’s head against concrete while
smashing in his face. I have seen photographs showing Zimmerman’s damages. This
seems to be reasonable self-defense; at least it did to an impartial jury.
Spitzer seems indignant that stand your ground laws shield
self-defense shooters from investigation. (They don’t.) But he doesn’t get it.
Apparently he thinks the legislators who passed these things in so many states
are homicide enablers. What SYG does is (1) shield citizens from overzealous
and ruinous prosecutions, and (2) removes a burden of proof that had been
placed upon a citizen in some states to prove that she had attempted to retreat
before shooting. SYG laws were designed to prevent the horror situation where a
homeowner shoots in self-defense, and then is immediately jailed for weeks or
months, interrogated, losing job and home (signed over to defense attorneys)
because she cannot prove she attempted to retreat. Prosecutors have power to
destroy the powerless. SYG is meant as a shield to honest folk. Spitzer then cites as an example of the evils
of SYG law a Montana case where a homeowner trapped (apparently baited) a
burglarious young person and killed him in a garage. But the homeowner was
convicted in the killing, a result that points in the opposite direction than
Spitzer’s conclusion of the uncivilized nature of SYG laws. The fact that
Spitzer uses what is really a counterexample to his point suggests his
fundamental confusion over SYG and self-defense law. Murder is murder and
remains so under SYG.
The big thesis/assumption of the book is based on a
historical argument against the straw man of Second Amendment absolutism.
Spitzer cites 20 pages of old gun laws dating back to colonial times proving,
he says, that the Second Amendment is not and was never regarded as absolute.
Therefore modern gun advocates have no case and must take whatever restrictive
legislation is imposed upon them. Thus, according to the book’s after-the-colon
title, gun rights are reconciled with rules governing ownership and use.
But who ever said the Second Amendment was absolute? No one
I ever met throughout gun culture, and I have known many from high to low, ever
stated such a thing. Spitzer has confused slogans with doctrine. Felons may not
bear arms. Guns should not be used to threaten or coerce people, not fired in
the town square, or randomly distributed to infants, children and the mentally
feeble. These are undisputed norms. In some places and times restrictions
extended to Catholics (in England), Blacks and slaves. New York’s 1911 Sullivan
law that restricted concealed carry and gun purchases was aimed almost entirely
at Italians and Southeast Europeans. A Florida law that barred possession of
Winchester repeating rifles was intended to prevent Blacks from having these
useful weapons, the assault rifles of their time; the law was never intended to
apply to white people, said a Florida judge, and would have been deemed
unconstitutional if such had been attempted. Many laws prevented hunting on the
Sabbath. Game laws affected magazine capacity and gun types, e.g., no punt guns
for duck hunting. Many post-bellum laws were aimed against free blacks; the
Fourteenth Amendment was necessary to correct this and other rights abuses.
So-called time, place and manner restrictions abounded and still do, e.g., no
guns in schools, which has not prevented murderous deviants with guns from
killing schoolchildren. Many of these past laws were obviously
unconstitutional, others not. Many were unchallenged, many obsolete, lapsed or
superseded. NRA has for many years attempted to shame governments into
enforcing existing gun laws instead of passing new ineffective ones.
Spitzer’s argument is absurd despite its great length. A
parallel: do past laws against libel, counterfeiting and pornography mean that
the First Amendment’s protection of free speech and press is somehow invalid or
should not broadly apply? Of course
not! Free speech and expression are not,
were never, absolute, but remain rigorously protected. The 1798 Alien and
Sedition Act criminalized expressions that criticized the government, obviously
an unconstitutional law at odds with any kind of absolutist or liberal
interpretation of the First Amendment, but was passed by Congress. The Espionage Act of 1917 made it a crime to
undermine the US war effort via criticism and also empowered censorship; so
many people were jailed that the ACLU formed as a result. I understand that
Spitzer is attempting to debunk historical arguments that favor the Second
Amendment, but his method does not convince.
Interestingly Spitzer seems to think he discovered something
new with the existence of these past laws. He crows about it, claiming that
some old magazine capacity laws are reported in his book for the first time
anywhere. Maybe the latter is true, but NRA has been reporting for decades the
existence of some 20,000-gun laws in the US.
And Spitzer just discovered that such things existed? He also seems oblivious to work by scholars
whose approach and conclusions fall outside of the narrow waveband of VPC
approval. Many scholars have discussed these laws, but he cites scholars financed
by anti-gun money. I suggest that Spitzer read St. George Tucker’s original
commentaries on the US constitution instead of relying on interpretations as
promulgated in work that came out of the now defunct (no longer funded by the
anti-gun Joyce Foundation) Second Amendment Research Center at Ohio State
University. Spitzer might also try Fordham Law Professor Nick Johnson’s volume,
Negroes and the Gun: The Black Tradition
of Arms, because Spitzer doesn’t really seems to know all that much about
guns and their history.
Why do I say this? Because Spitzer in his apparent
astonishment over all these laws resembles exactly the kind of person I often
meet in academia, who has no clue that any guns laws exist at all. Seemingly
informed by hysterical editorials in the New
York Times and television news, they are misled by the cognitive red
herrings mentioned above. After the recent Orlando murders some of my academic
colleagues were surprised to learn that no automatic weapon (machine gun) was
involved, the shooter had passed an FBI background check done by all licensed
firearms dealers on all sales, and that one cannot just buy assault weapons (or
any other firearm) online.
Spitzer ties up with a chapter on how he built a gun, an
AR-15, which must have really wowed the editors at Oxford University Press, and
also acquired a gun permit to purchase a handgun in New York State. For only
$160 he was able to acquire what he calls the “Legos–like” items to complete
the lower receiver which he had to purchase through a federal firearms licensed
dealer. Spitzer leaves it at that, but this amount may be misleading, because
the rest of the gun, upper receiver and so on, costs a great deal more—maybe
$600 additional—so one cannot put together an AR-15 for $160. With help, he
makes a New York compliant AR-15 that holds only 7 rounds. His gun permit
allows him to purchase a pistol that he may keep in his home and is not a carry
permit. If he want to learn the meaning of the word “no,” I suggest that he
apply for a New York concealed pistol license. Even though New York’s
relatively tough laws seem to be no more effective at what he calls “lax” gun
laws in other parts of the country Spitzer concludes that the New York SAFE gun
law, hurriedly passed in the days after the Sandy Hook murders, are “feasible” because
they are clear and therefore compliance is easy. This standard, like his other
arguments, also seems absurd to me. Is this how we formulate just and
reasonable laws? Whatever seems feasible may fly? God help us if this is
intended as a serious policy proposal.
Oxford University Press must be using the same standard
these days to evaluate new book proposals.
BAP
28 June 2016
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