Amy Kapczynski and Jedediah Purdy –
Like many of you, we’ve been moved by the voices of the student activists from Marjory Stoneman Douglas High School. With fierce focus and astonishing political savvy, they’ve unleashed an urgent new national debate about gun control.
America today has the highest per capita gun ownership in the world, and evidence suggests that this is substantially why we also lead the world (with Yemen) in mass shootings. How did this come to be? Defenders of the status quo argue that at the core of gun rights claims are timeless constitutional principles and the virtues of hunting. Their touchstone is the Second Amendment, and its purported individual right to bear arms. In truth, the contours of today’s gun rights took shape in the recent past, in an era of racialized attacks on public institutions and the state, and of politically motivated cultivation of fear.
The Second Amendment provides: “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.” As recently as the 1980s, every literate lawyer thought that this provision protected only “the right of states to form militia, not for individuals to bear arms,” and believed that all state gun control laws were “probably constitutional.” (Those are quotes from Robert Bork – an originalist and right-wing judicial icon so conservative that he failed to be confirmed to the Supreme Court in the Reagan Era.) Yet in 2008, in a case called D.C. v. Heller, the Supreme Court found otherwise. It struck down a Washington D.C. handgun restriction, and declared for the first time that the Second Amendment constrains how the government may regulate guns.
Even as it announced a new individual right, Heller firmly embraced limitations on this right – and these, as Reva Siegel describes in a superb recent article, correspond more readily to contemporary public opinion than they do to the constitutional text. Directly after declaring a new constitutional right, for example, the Court curtailed it, noting that its decision should not be understood to question a state’s ability to ban “weapons that are most useful in military service,” such as “M-16 rifles and the like.”
Pause for a moment to notice the irony: An amendment explicitly rooted in militias becomes a right that in no way guarantees access to weapons useful for (wait for it…) militias.
What then does this new right protect? At its core, says the Court, the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” Where did this concept of a gun rights rooted in self-defense come from? Siegel traces it to the racialized “law and order” platforms that Republicans ran on in the 1970s and 1980s, and to frames developed by the NRA.
As readers of this blog well know, the 1970s and 1980s are also a key period in the consolidation of neoliberal rationality, and Heller also bears the imprint of this imaginary. One thing an LPE approach insists on is that law is Janus-faced: Negative rights not only constrain, but also on their flip side implicitly approve an arrangement of private power that must be left undisturbed. Just as “private” economic law has public roots in state definition and enforcement of property and contract rights, “public law” constitutional principles imply and define a domain of private ordering.
In Heller, the Second Amendment generated another version of private ordering twinned with limits on state power. Here the private ordering enables a certain violence – for some, against a defined set of others. Max Weber famously defined the state as having a monopoly on the legitimate use of violence. The NRA’s constitutional program has always amounted to a kind of privatization of this sense of sovereignty. Its vision of constitutional freedom is one in which men have to be prepared to kill to protect themselves (and their families – the image of “hearth and home” is also, of course, profoundly gendered), because the state cannot or will not keep us safe. Tropes of racialized threat are core to this imaginary of America as a failed state. As Siegel shows, NRA leaders regularly invoke potent but groundless narratives about black and brown criminality to substantiate the need for guns in the (white) home, and link claims about “white pride” to their demands for a revitalized Second Amendment.
Race appears too in the imagined victim: though victims of gun violence are disproportionately black, in the NRA’s imaginary, the privileged victim is white. It takes nothing away from the remarkable activism of the Parkland students to note that the reception they have enjoyed is part of this racialized legacy. Before #MSJStrong, of course, there was #BlackLivesMatter – and a truly transformative politic of gun control must reckon with the devastating impact of militarism on black and brown lives, both here and abroad.
LPE approaches can help us see all these moves as part of an interconnected whole. The constitutional myth of the armed (masculine) ur-citizen aligns with a racialized fear of crime and attack on the state that was cultivated in the 1970s and 1980s – and returned as a touchstone of Trump’s presidential campaign. Both of us have roots in rural areas where shooting and hunting are rites of passage, so we know that gun culture in many parts of the country is real. But the NRA has taken that culture and moved it in a paranoid and racialized direction, while cultivating a new exurban constituency that is far removed from hunting and all about buying personalized self-defense at Wal-Mart.
Consider Justice Scalia’s explanation in Heller of why the right to self-defense, needed on the colonial frontier against wild animals and indigenous people, survives today in a constitutional guarantee that you can keep handguns ready to use at home: “There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police.” The paradigmatic American situation that links the Revolutionary generation to the twenty-first century is self-defense against a dark and dangerous stranger, in a country where you cannot rely on the government. On one level, this is simply the gun industry’s 1980s turn to handguns and to suburban women customers, converted to NRA scare-propaganda and, in turn, to constitutional law. On another level, it is what constitutionally legitimized violence looks like in an age of diminished and unevenly distributed sovereignty – what it might not be too much to call neoliberal sovereignty.
The NRA also pivoted gun culture in a neoliberal direction in another way – mobilizing it toward an attack on the Great Society programs of the 1960s, by casting our society (this is Siegel again) as “divided into kinds, the ‘law-abiding citizen’ and the ‘criminal,’ the deserving and the undeserving,” and attacking government as overly identified with the undeserving other. It is precisely at the moment when voting rights and civil rights become real, and when anti-poverty programs are beginning to be reclaimed as a matter of right, that gun rights (though not for the Black Panthers) and other social issues are newly invigorated by the NRA and the Republican Party. As one conservative commentator wrote at the time, “We talk about issues that people care about, like gun control, abortion, taxes and crime. Yes they’re emotional issues, but that’s better than talking about capital formation.”
As law and political economy scholars, we also draw on a critique of markets that illuminates the contradictions between a lucrative market in weapons and a society that aspires to that modicum of social protection that would ensure we could send our kids to school, and go to concerts and movie theaters, without a pervasive sense of mortal peril.
Guns are a multi-billion dollar a year industry in the US today, some unknown amount of which is channeled into the political campaigns of groups like the NRA. (For that, you can thank another disastrous line of constitutional cases – the Citizens United campaign finance cases, which are rooted in the shredding of post-Watergate campaign finance laws in the 1976 case of Buckley v. Valeo.) The trouble with market logic is easy to see when the market in question is for guns: Americans must buy more and more weapons if we are to sustain a profitable gun industry, because guns are durable goods.
Can it be an accident that the frame of modern gun rights as key to “self-defense” supplies demand for far more, and more extensive, weaponry than is needed to take down a deer? Or that the NRA and Trump’s privileged solution for gun violence in schools is arming teachers, and so buying more guns? To create new demand for guns, the industry also has an incentive to produce fear – that most dangerous political emotion, which always come more easily in America when it is racialized. And as Frank Pasquale noted in earlier post, when we apply law and economics values to weapons markets, we also get increasingly cheap and available instruments of violence – which is “not a form of efficiency to be celebrated unproblematically.”
For law and political economy scholars, it should also be of particular interest that our market in guns in the US is so extraordinarily protected. There is no such thing as the free market; rather, the state makes markets, and makes them differentially, while its apologists claim it is simply deferring to dynamics beyond its control. Guns, which kill tens of thousands of Americans each year, receive unique immunity from ordinary principles of legal liability. That is because, in 2005, Congress passed broad statutory immunity for gun manufacturers and dealers. The law protects dealers from most claims that they have negligently sold guns, and means that gun manufacturers do not have to take the kind of ordinary, life-saving precautions that manufacturers of cars and toasters must.
Finally, individuals bear little liability themselves for the harms that their guns do. If for your sins you end up in a local sporting goods store on Christmas Eve browsing the trampoline aisle, you may be deterred – as one of us was – if a clerk tells you that you need a separate insurance policy to protect your home if a child is injured. Walk a few aisles over to the gun aisle instead, and you’re unlikely to hear the same speech. Most homeowners’ policies cover gun injuries as a matter of course.
What would our world of violence look like if gun owners were held responsible for deaths caused by weapons that were not properly stored, or sales made without adequate precautions? Not equal, to be sure, for the background law of liability itself fails on this score, making some lives worth more than others as LPE readers well know – but it would be a far distance from the world we have today, where gun manufacturers and owners benefit from an astonishing array of protections that are rooted in our law.
Constitutions, citizens, and markets are all made. Over the past forty years, we have made a gun market that follows the rules of almost no other markets in American life, supported by a gun jurisprudence that both draws on and amplifies divisive, inegalitarian, and misarchic strains in American politics. These are just a few of the legacies that this new generation of activists will have to confront as they recast the public meanings of safety and sovereignty.
Amy Kapczynski (@akapczynski) is a Professor of Law at Yale Law School.
Jedediah Purdy is the Robinson O. Everett Professor of Law at Duke Law School.