Wednesday, May 22, 2013

Gunfight at the O.K. Corral

So what does the Gunfight at the O.K. Corral have to do with gun control laws? Quite a lot, it turns out. The Earps and their friend Doc Holliday were actually enforcing a local ordinance against the Clantons et al. -- an ordinance that prohibited the carrying of weapons in good old Tombstone, Arizona.

It turns out that quite a few Old West towns prohibited carrying guns.  I found out about this from Adam Winkler, a law professor at UCLA who has written a book called Gunfight:  The Battle Over the Right to Bear Arms in America (W.W. Norton, 2011).

Winkler is middle of the road, as gun things go.  He's okay with the individual right to a gun -- the core of Justice Scalia's Supreme Court opinion -- but he begs to point out that gun control has been around as long as the right to have a gun.

He also points out that the fear of gun confiscation is not entirely a paranoid fantasy:  It has happened in this country.  From the early days of the Republic and on through Reconstruction and the Ku Klux Klan to Ronald Reagan and the Black Panthers, gun control laws were used to disarm blacks.

Which puts RR in the odd position of being a conservative saint who favored gun control while he was governor of California, saying, "There's no reason why on the street today a citizen should be carrying loaded weapons."  

The National Rifle Association also used to support gun control.  In the 1930's the organization's president, Karl T. Frederick, told Congress, "I do not believe in the general promiscuous toting of guns.  I think it should be sharply restricted and only under licenses."

Justice Scalia's opinion turns on the original intent of the framers of the Constitution, and Winkler points out that America in the late eighteenth century had all kinds of gun controls:  "At the time of the founding, laws required the armed citizenry to report with their guns to militia musters, where weapons would be inspected and the citizens trained.  Authorities often required that militia guns be registered.  There were laws requiring gunpowder to be stored safely, even though the rules made it more difficult for people to load their guns quickly to defend themselves against attack."

The history of guns in this country is complicated, and we need to look at the whole picture.  Justice Scalia didn't, and his opinion suffers from that.  He wrote that, unlike handguns, machine guns could be restricted because they are "dangerous and unusual weapons" that are not "in common use."  And he ignored the fact that the federal government effectively banned machine guns in the 1930's, so naturally there are not many of them in civilian hands.

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