ISSN 1062-7421
Vol. 12 No. 1 (January 2002) pp. 21-22.

THE RIGHT TO BEAR ARMS: RIGHTS AND LIBERTIES UNDER THE LAW by Robert J. Spitzer. Santa Barbara, CA: ABC-CLIO, 2001. 263 pp. Cloth $55.00. ISBN: 1-57607-347-5.

Reviewed by Daniel Hoffman, Department of Social Sciences, Johnson C. Smith University.

This book is the first in a planned series on AMERICA'S FREEDOMS, edited by Donald Grier Stephenson, Jr. It appears from the Series Foreword that the series is intended primarily for the general readers. The volume's best academic use might be as one text in a course devoted to the right to bear arms, or perhaps a course on approaches to legal interpretation. For this purpose a less costly paperback edition would be well-advised.

The author's Preface recounts his longstanding interest in the politics of gun control, on which he has previously published. His stated object in the present volume is to separate "truth" from "myth" in current debates on the meaning of the Second Amendment. To this end he reviews key documents that, in his view, clearly and consistently establish (1) the intentions of those who drafted and supported the Amendment, (2) the way later generations understood its meaning, and (3) the thrust of authoritative judicial interpretations of the Amendment.

The "myth," it soon appears, is the claim that the Second Amendment protects a personal right to bear arms. Dr. Spitzer is firmly of the view that, on all three of the above grounds, the Second Amendment speaks only to the right of the individual States to establish, arm and maintain their own militias.

The principal text (129 pages) consists of a brief Introduction and three historical chapters tracing the framing of the Second Amendment, the subsequent development of the militia system and the laws, and the current debate over the right to bear arms. There follow two additional appendix-like chapters (104 pages) that provide, respectively, a listing of "Key People, Cases, and Events," and a collection of primary historical documents--statutes, cases, and party platforms. The historical documents are a handy reference; the copious bibliography indicates a thorough grounding in the pertinent literature and assists the interested reader to continue with her own research.

As an account of the history and the debate, the book is, despite its brevity, quite successful. It is well-written and touches on all or nearly all of the key issues and developments. As an argument, however, I fear it preaches largely to the novice and to the already converted. Candor obliges me to acknowledge that the author edits a different series to which I myself contributed a volume. If this was not enough to validate his good judgment, the fact that I share his repugnance for the NRA and its political tactics ought to guarantee my wholehearted agreement with his argument.

Having recently reviewed Stephen Halbrook's book on the right to bear arms

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for LPBR (Vol. 9 No. 4, April 1999, pp. 151-53), however, I am not persuaded that Dr. Spitzer has done full justice to the other side. Halbrook, as I wrote, makes a powerful case that the framers of the Fourteenth Amendment, at least, viewed the right to bear arms as a fundamental personal right, and intended to incorporate that right in the Fourteenth. The situation confronting the freedmen in those days made the importance of that right--if not its earlier legal meaning--entirely clear.
Halbrook's argument is quite intricate and provides at least some non-specious support for the claim that the Second Amendment already recognized a personal right to bear arms.

The present book does offer telling criticisms of many of the arguments for a personal right to bear arms. For example, several of the historical quotations most heavily relied on by advocates of the personal rights view are shown to be misleadingly edited or taken out of context. For those in search of a comprehensive and decisive refutation of the personal rights argument, though, other parts of Dr. Spitzer's rebuttal are too quick. At times he deploys controversial interpretive techniques, such as a rigid version of originalism, without acknowledging the predictable counterarguments. He relies on court decisions with little heed for what his
opponents say against those decisions. (The book was completed before the recent Court of Appeals decision in UNITED STATES V. EMERSON, which broke with precedent in endorsing the individual rights interpretation.) There are several junctures where conclusory terms ("obviously," "clearly," or "simply") summarily dispose of a complex issue.

Dr. Spitzer is entirely correct in maintaining that the constitutional argument on which he focuses is largely irrelevant to debates over specific measures for gun control, since the putative personal right to bear arms would in any case not be an absolute right. Thus, it is unclear how much turns on the constitutional issue as a practical matter--although the EMERSON decision, allowing an estranged husband subject to a restraining order to keep his firearm, may give grounds for concern. Dr. Spitzer is also, I think, correct in his assessment of the misleading ways in which some opponents of gun control have exploited Second Amendment "rights talk" in
their political campaigns. While his argument is unlikely to persuade defenders of the personal rights view to abandon their position, it is unclear, given the heated state of the discourse, what sort of argument might do so.

Attorney General John Ashcroft's recent determination that current law does not permit disclosure to the FBI of gun purchases, whether by citizens or by aliens, may lead one to reflect further about the harms that flow from the place of firearms in our culture, politics and law. But of course, there is no guarantee that the Constitution must always mean what we wish it meant.


Halbrook, Stephen P. 1998. FREEDMEN, THE FOURTEENTH AMENDMENT, AND THE RIGHT TO BEAR ARMS, 1866-1876. Westport, CT: Praeger Publishers.

UNITED STATES v. EMERSON, 270 F.3d 203 (5th Cir. 2001).


Copyright 2002 by the author, Daniel Hoffman.