Reason Magazine - Staff

The Second Amendment Goes to Court

Fri, 27 Jun 2008 07:00:00 EDT

For the past three decades, Washington, D.C. has enforced one of America's most draconian gun control laws—a total ban on the possession of handguns, not to mention strict gun lock provisions for rifles and shotguns, that has left law-abiding citizens unable to legally defend themselves and their homes. In March, the U.S. Supreme Court heard oral arguments in the case of District of Columbia v. Heller, in which seven D.C. residents challenged the constitutionality of the ban. At the center of the case is the question of whether the Second Amendment protects an individual or collective right to keep and bear arms.

Yesterday, the Court issued its long-awaited opinion, ruling 5-4 in favor of an individual right to own guns. reason assembled a panel of 8 leading civil libertarians to help make sense of what the Court said, what it means, and what's likely to come next.

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Alan Gura: Yesterday’s decision is a huge victory for liberty. First, we saved the Second Amendment. That much should be obvious from the opinion. Yesterday, federal courts in 47 states were telling Americans they had no Second Amendment rights. The score is now 50-0, plus the capital, in the other direction. For budding lawyers, “individual right” is now the correct answer on the Multi-State Bar Exam. The movement to end private firearm ownership in America is dead and buried. Yes, we’ve got some work to do to make sure it stays that way. It will.

The case is “narrow but broad.” Narrow, in the sense that our objective was merely to secure the individual nature of Second Amendment rights, and demonstrate—with a judgment—that the right has substance. Broad, in the sense that this simple principle can now be applied in other contexts. This is not just about flat-out gun bans in Washington, D.C. homes. All regulations that touch upon Second Amendment rights will get a well-deserved constitutional look. Instant background checks and felon-in-possession laws will survive. Laws meant to harass gun possession, while at best advancing only a hypothetical public benefit, will not. The Second Amendment is now a normal part of the Bill of Rights. It’s not realistic to expect one Second Amendment case to answer all right to arms questions for all time, just as we have no one decision telling us what a Fourth Amendment “reasonable search” in all circumstances. We may not win every case. We’ll win a good amount of them. The next step is obviously 14th Amendment incorporation. I’m looking forward to leading that fight. Learn more at www.chicagoguncase.com.

Libertarians can be impatient. Would anyone prefer the quick certainty of Kelo? Or McConnell v. FEC? It may be a tough slog to restore the Takings Clause and free political speech. Restoring the Second Amendment will take time, too. Today, with the right to keep and bear arms, we start from a position of strength.

Alan Gura argued District of Columbia v. Heller before the Supreme Court. He is a partner at Gura & Possessky.

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Glenn Reynolds: My first thought on Heller is that many gun-rights supporters never thought they'd live to see a Supreme Court opinion to the effect that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." Bob Levy, who brought the case against the advice of many gun-rights supporters, should feel very good about that.

My second thought is that this is a gift to the Obama campaign. While this won't take the gun issue off the table, it also won't energize the gun-rights crowd (which cost Al Gore the election in 2000 when he failed to carry Tennessee, largely because of his support for gun control) the way a contrary opinion would have. Obama's record of strong support for sweeping gun control would hurt him much more if gun owners felt more vulnerable.

My third thought is that whether this has much impact on the real world depends on how the next several cases proceed. In the 1990s the Supreme Court announced a major shift in Commerce Clause doctrine that offered the hope of paring back federal power considerably. But right-leaning public interest law groups didn't take up the challenge and bring carefully selected cases to advance the principle, leading it to be characterized by some (including me) as a constitutional revolution where nobody showed up. Gun-rights advocates are already talking about follow-on challenges in places like Chicago or Morton Grove. How well those are brought will have a lot to do with whether the Heller opinion is a milestone, or just a speedbump.

Glenn Reynolds is a law professor at the University of Tennessee. He blogs at Instapundit.com.

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Randy Barnett: Justice Scalia's historic opinion will be studied for years to come, not only for its conclusion but for its method. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Its analysis of the "original public meaning" of the Second Amendment stands in sharp contrast with Justice Stevens' inquiry into "original intent" or purpose and with Justice Breyer's willingness to balance an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. The differing methods of interpretation employed by the majority and the dissent also demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same. Now if we can only get a majority of the Supreme Court to reconsider its previous decisions—or "precedents"—that are inconsistent with the original public meaning of the text.

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center and author of Restoring the Lost Constitution: The Presumption of Liberty.

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Brian Doherty: The Heller decision was exciting for fans of American liberty—even the dangerous and disreputable end of that liberty, where weapon possession and use rights abide in the minds of many good-hearted people who think guns are just ugly and awful and appeal to the worst aspects of human nature.

Scalia's opinion did a thorough job of fileting, layer by layer, the lame and unsupportable "collective right" beliefs about the Second Amendment—including lots of sadly necessary exegesis on how the word "keep" means that people have a right to, yes, keep arms in their homes.

But Heller represents no happy ending to our legal and public policy duels over guns. Scalia's opinion does admit that we do have a constitutionally protected right to some degree to defend ourselves and our property with weapons.

But the opinion also stresses that right is still regulatable in many, many ways. It leaves plenty of room (which you can be sure will be filled rapidly) for future court challenges and public policy fights to define the degree to which the government, at any level, can restrict or regulate the sale, possession, and use of weapons. It may well turn out that anything less severe than D.C.'s total ban will withstand scrutiny even under the newly revived Second Amendment.

The "eternal vigilance is the price of liberty" part: four members of the Supreme Court think that it's A-OK for the government to completely bar citizens from using guns for the protection of their lives and homes. That can't make sleeping at night any easier. That said, the Heller victory was a sweet one for the recognition that there are limits to what democracy can do to individual rights, and is worth celebrating for that.

Brian Doherty is a senior editor at reason and the author of This Is Burning Man and Radicals for Capitalism. He is currently writing a book about District of Columbia v. Heller.

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Sanford Levinson: The majority obviously found that the Second Amendment does protect an individual right to bear arms, and they applied this right in the easiest possible case, i.e., a functionally absolute prohibition against handgun possession.

What cannot be determined from the opinion is what the future impact of Heller will be, beyond further litigation. I am reminded of a cartoon in the New Yorker several years ago, of a conversation at a suburban cocktail party where a woman says to a well-dressed man, who is carrying a rifle slung over his shoulder, “I've never met a Second Amendment lawyer before.” I suspect that there will be more such lawyers in the next few years, but this says nothing about the prospects of winning such cases. For all of the rhetorical bluster of Scalia’s opinion, it not only focuses on the extreme nature of the D.C. ordinance, but also goes out of its way in effect to legitimize a plethora of existing federal legislation regarding guns. And, of course, there is no way of knowing who will be appointing the all-important “inferior” federal judges, beginning in January 2009, who will play a far more important role than the Supreme Court in deciding the operational meaning of the Second Amendment.

Finally, Scalia should take a certain pleasure that Justice Stevens, by confining the entirety of his opinion to an “originalist” analysis of the Second Amendment (that obviously came to a completely different conclusion), seemed to concede the overarching importance of original meaning. Neither Justice was willing to pay any attention to the “dynamic” aspect of the Second Amendment. Scalia was presumably unwilling to cite Chief Justice Taney’s opinion in Dred Scott, but it’s the strongest single piece of evidence for the proposition that by mid-19th century an individual right to bear arms (at least if you were an American citizen) had become the conventional wisdom.

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. His most recent book is Our Undemocratic Constitution.

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Jacob Sullum: The most important aspect of D.C. v. Heller, of course, is the Supreme Court's recognition that the Second Amendment protects an individual right to arms. From that premise it almost inevitably follows that the District of Columbia's gun law—which, as the Court noted, "bans handgun possession in the home" and "requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable"—is unconstitutional. If such a law does not violate the right to armed self-defense, it's hard to imagine what law would. That's why the Court did not bother to specify what level of scrutiny is appropriate for purported violations of the Second Amendment. It concluded that the D.C. law is invalid "under any of the standards of scrutiny the Court has applied to enumerated constitutional rights."

By the same token, however, this decision does not give a clear sense of the line between constitutional and unconstitutional forms of gun control. The Court indicates that laws regulating the sale of firearms and prohibiting concealed carry, gun ownership by "felons and the mentally ill," possession of "unusual and dangerous weapons" (as opposed to weapons in common use for lawful purposes), and possession of firearms in "sensitive places" such as schools and government buildings are consistent with the Second Amendment. But it is not clear whether a law against openly carrying guns would pass muster, or what kinds of guns count as "unusual and dangerous," or how onerous licensing and registration requirements can be before they run afoul of the Second Amendment.

On that last point, the Court says licensing and registration are not necessarily unconstitutional, but it sounds like it would look askance at conditions attached to them.

"Assuming that [plaintiff Dick] Heller is not disqualified from the exercise of Second Amendment rights," the Court says, "the District must permit him to register his handgun and must issue him a license to carry it in the home." (Emphasis added.) It's harder to predict which weapons will end up being covered by the Second Amendment, except that they will include handguns but evidently not machine guns or bazookas.

Finally, the majority opinion does not address the question of whether the Second Amendment, either directly or via the 14th Amendment, applies to the states as well as a federal domain like the District of Columbia. But it's hard to imagine why it wouldn't now that the Court has clearly acknowledged the right to armed self-defense as a fundamental aspect of liberty protected by the Constitution.

Jacob Sullum is a senior editor at reason and a nationally syndicated columnist.

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Dave Kopel: Heller is a tremendous victory for human rights and for libertarian ideals. Today’s majority opinion provides everything which the lawyers closely involved in the case, myself included, had hoped for. Of course I would have preferred a decision which went much further in declaring various types of gun control to be unconstitutional. But Rome was not built in a day, and neither is constitutional doctrine.

For most of our nation’s history, the U.S. Supreme Court did nothing to protect the First Amendment; it was not until the 1930s when a majority of the Court took the first steps towards protecting freedom of the press. It would have been preposterous to be disappointed that a Court in, say, 1936, would not declare a ban on flag-burning to be unconstitutional. It took decades for the Supreme Court to build a robust First Amendment doctrine strong enough to protect even the free speech rights of people as loathsome as flag-burners or American Nazis.

Likewise, the Equal Protection clause of the Fourteenth Amendment was, for all practical purposes, judicially nullified from its enactment until the 1930s. When the Court in that decade started taking Equal Protection seriously, the Court began with the easiest cases—such as Missouri’s banning blacks from attending the University of Missouri Law School, while not even having a “separate but equal” law school for them. It was three decades later when, having constructed a solid foundation of Equal Protection cases, the Court took on the most incendiary racial issue of all, and struck down the many state laws which banned inter-racial marriage.

So too with the Second Amendment. From the Early Republic until the present, the Court has issued many opinions which recognize the Second Amendment as an individual right. Yet most of these opinions were in dicta. After the 1939 case of United States v. Miller, the Court stood idle while lower federal courts did the dirty work of nullifying the Second Amendment, by over-reading Miller to claim that only National Guardsmen are protected by the Amendment.

Today, that ugly chapter in the Court’s history is finished. Heller is the first step on what will be long journey. Today, the Court struck down the most freakish and extreme gun control law in the nation; only in D.C. was home self-defense with rifles and shotguns outlawed. Heller can be the beginning of a virtuous circle in which the political branches will strengthen Second Amendment rights (as in the 40 states which now allow all law-abiding, competent adults to obtain concealed handgun carry permits), and the courts will be increasingly willing to declare unconstitutional the ever-rarer laws which seriously infringe the right to keep and bear arms.

As the political center of gravity moves step by step in a pro-rights direction, gun control laws which today might seem (to most judges) to be constitutional will be viewed with increasing skepticism. The progress that the pro-Second Amendment movement has made in the last 15 years has been outstanding. As long as gun owners and other pro-Second Amendment citizens stay politically active, the next 15, 30, and 45 years can produce much more progress, and the role of the judiciary in protecting Second Amendment rights will continue to grow.

Dave Kopel is Research Director at the Independence Institute, in Golden, Colorado. He was one of three lawyers at the counsel table who assisted Alan Gura at the oral argument on March 18. His brief for the International Law Enforcement Educators and Trainers Association was cited four times in the Court's opinions.

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Joyce Lee Malcolm: What a great day for individual rights. The majority of the Supreme Court retrieved the original intent of the Second Amendment to permit individuals the right and ability to defend themselves. For thirty years those convinced that ordinary people can’t be trusted with guns have dominated the discussion. In order to ban civilian ownership of weapons, the original meaning of the Second Amendment had to be reinterpreted, and unfortunately with its awkward language—which was well-understood at the time—that wasn’t too difficult. Generations of law students have been taught that the Second Amendment merely protected the right of states to have a militia, a right already incorporated into the body of the Constitution. The nearly complete control over the militia by the federal government was not altered in any way by the amendment, but no mind. The linguistic efforts to deny an individual right were quite inventive—“the people” only in this amendment meant a group, not an individual, “bear arms” implied an inclusively military context, that awkward word “keep” was to be erased by linking it with “bear” in order to make it exclusively military, and so on. And it all nearly worked. But not quite.

Thanks to the scholarly efforts of many people, the overwhelming evidence for an individual right to keep and have weapons for self-defense was uncovered and published. It was that evidence that the justices relied upon.

My only disappointment with an otherwise great decision was how narrow it was. Four justices ignored the evidence in order to preserve the gun control measures meant to deny individuals the right to be armed. In the process, they were prepared to erase a basic right and uphold the stringent and ineffective D.C. gun ban, a law that went so far as to forbid reassembling a gun in the home in the case of a break-in.

Still, it was a great day for every American, one that will ensure a safer America than any number of gun bans ever could.

Joyce Lee Malcolm is professor of legal history at George Mason University School of law. She is the author To Keep and Bear Arms: The Origins of an Anglo-American Right.

Disarming History

jmalcolm@bentley.edu (Joyce Lee Malcolm) — Sat, 01 Mar 2003 00:00:00 EST

"Real historical writers probe factual uncertainties, but they do not invent convenient facts and they do not ignore inconvenient facts. People are entitled to their own opinions, but not to their own facts."

-- William Kelleher Storey, Writing History

When the Playboy interview with Michael Bellesiles appeared in January 2001, the Emory University history professor was riding high. He was basking in the heady glow of rave reviews and a media blitz hailing his book, Arming America: The Origins of a National Gun Culture, as a "tour de force" that "changes everything." Bellesiles claimed to have discovered that, contrary to accepted opinion, guns were scarce in early America and Americans were uninterested in owning them. "The notion that a well-armed public buttressed the American dream," he assured readers, "would have appeared harebrained to most Americans before the Civil War." It was all an "invented tradition," with historians joining "actively in the mythmaking." Reviewers of Arming America were quick to point out the "inescapable policy implications."

The Playboy interview ended with Bellesiles' challenge to the powerful gun lobby: "As for the NRA [National Rifle Association], when anyone talks about the history of guns in America, they're going to have to give me evidence -- facts, not folktales." Three months later, despite growing skepticism, Arming America was awarded Columbia University's prestigious Bancroft Prize for the best work of American history published in 2000. It seemed the question of what was fact, what fiction, had been settled.

Bellesiles had flung his challenge at a political organization, but unfortunately for him it was the scholarly community that picked it up. The evidence he had presented for his groundbreaking theory was investigated first by experts from a range of disciplines and political viewpoints; then by a special symposium in a learned journal; and finally, as a result of the disturbing findings, by the professor's university and an outside panel of scholars that it appointed. The results are now in: Bellesiles' arguments are based on wholesale misuse of evidence and, in some cases, no evidence at all. The "invented tradition" is fact, the professor's version a folk tale.

The same month that Playboy published its interview with Bellesiles, my review of Arming America appeared in reason, one of the first publications to expose his errors. (See "Concealed Weapons," January 2001.) It formed part of what was to swell into an astonishing stream of revelations, most of which were immediately branded by Bellesiles and his supporters as politically motivated or trivial. Scholars and reporters who asked about Bellesiles' sources were treated to continually changing stories about where his research was conducted and the locations of his materials. Their inquiries were greeted, by turns, with injured innocence or vicious invective. Bellesiles had, he said, accidently stepped "into a minefield."

Bellesiles maintains that his book has been subjected to unfair, unprecedented scrutiny. The problem, he told a British reporter last spring, is that there are "some topics which perhaps should not be addressed," that "this is a dangerous environment [in which] to talk about firearms." While Bellesiles admits to some errors in a handful of paragraphs, his response to the unfavorable report of Emory's investigative committee insists, "The overwhelming bulk of the evidence in support of this book's thesis remains unchallenged."

As we'll see, not only have virtually all aspects of his work been "challenged," but Bellesiles' critics have discovered wholesale and systematic misrepresentation of the historical evidence. If anything can be learned from this extraordinary episode, in which one of the most extravagantly praised scholarly books in many years has been exposed as one of the most fraudulent, it is the importance of maintaining rigorous intellectual standards even when they work against one's political preferences.

Scholarly Scandals

Before we consider the bizarre twists and turns of the Bellesiles saga, the case should be put in context. Although the Arming America story ranks as the worst scandal to hit the American historical profession in recent memory, while it was unfolding three distinguished historians were exposed for dishonesty of one sort or another.

First came Joseph Ellis, professor of history at Mount Holyoke College in Massachusetts, winner of the National Book Award for his biography of Thomas Jefferson and of a Pulitzer Prize for Founding Brothers: The Revolutionary Generation. In Ellis' case the integrity of his scholarship was not in question. Instead it was the stories of his experiences in the Vietnam War with which he regaled his students that proved his undoing. In June 2001 The Boston Globe revealed that Ellis' actual military experience consisted of ROTC at William and Mary College and teaching history at the U.S. Military Academy at West Point. Although he claimed to have served in Gen. William Westmoreland's Vietnam headquarters and as leader of a platoon that passed near My Lai shortly before the 1968 massacre there, military records show that he never left the East Coast. In August 2001, as critics began to find more and more discrepancies in Bellesiles' work, Ellis was suspended for a year without pay.

In January 2002 it was the turn of Stephen Ambrose, the best-selling author, co-author, or editor of an astonishing 35 books over some 40 years. The first revelation was that his latest book, The Wild Blue, contained extensive text from the work of others. Forbes.com writer Mark Lewis discovered that The Wild Blue contained passages from at least nine of the 28 books cited in the endnotes. These nine were the only books of the group that Lewis was able to check, but he posited that if a similar pattern were found in the other 19 books, "That would leave Ambrose open to the charge that he did not write Wild Blue so much as edit it."

Next, passages copied from the work of other scholars were found in five of Ambrose's other books. Ambrose remained unrepentant, insisting until his recent death that he had done nothing wrong, since he had acknowledged the various authors in his notes. Nevertheless, he presented their prose as his own, a clear case of plagiarism as the academy defines it and as every college freshman is expected to understand it. Some commentators have attributed Ambrose's copying to the pressure to churn out new books once his work began earning millions for himself and his publisher. With a small army of his children enlisted as research assistants, Ambrose & Co. had become something of a cottage industry. Yet similar "borrowing" has been found in books written before the historian's career took off, even as early as 1970. For 30 years Ambrose had gotten away with plagiarism. Whoever originally wrote the text, Ambrose's books continue to be sold under his name, earning money for his estate and his publisher, Simon and Schuster.

That same January, Doris Kearns Goodwin, author of successful biographies of Lyndon Johnson, various Kennedys, and Franklin and Eleanor Roosevelt, television regular and Harvard overseer, was found to have taken numerous passages in her 1987 book The Fitzgeralds from a book by Lynne McTaggart on Kathleen Kennedy. McTaggert had accepted a settlement from Kearns Goodwin and her publisher years before. Kearns Goodwin blamed the problem on sloppy note taking. She claimed she couldn't tell which of her handwritten notes were her own prose, which copied verbatim from her sources. To her credit, she never argued that copying was legitimate. She asked her publisher, also Simon and Schuster, to destroy its copies of the book and to publish a corrected edition, and she set her researchers to work combing the text for "borrowed" passages.

Kearns Goodwin, like Ambrose, has had defenders. In March 2002 she discussed her confusion over her notes in an address at the College of St. Catherine in Minnesota, and afterward the audience gave her a standing ovation. But a week later The Harvard Crimson called for her to resign as a Harvard overseer. An editorial on the front page of the student newspaper cited Harvard policy: "For students who have committed plagiarism any letter of recommendation written for or on behalf of Harvard College -- including letters to graduate schools, law schools, and medical schools -- will report that you were required to withdraw for academic dishonesty." "Why then," the editorial asked, "should an adult, much less a professional historian, continue in her position in the University without consequence?" There have been consequences. Kearns Goodwin is on leave from her post at PBS's The News Hour With Jim Lehrer, invitations for speaking engagements were withdrawn, and she has resigned from the Pulitzer Prize board (though she has been welcomed back to Meet the Press as an occasional commentator).

The cases of Ellis, Ambrose, and Kearns Goodwin are instances in which our most honored historians failed to live up to professional standards. Ellis' infraction seems to me the least serious. His scholarly work remains unquestioned, although personal integrity is expected in teaching no less than in scholarship. Kearns Goodwin plagiarized and is paying the penalty. Ambrose, by contrast, was guilty of wholesale plagiarism and was unrepentant. He made a fortune from the hard work of other scholars. Either his books should be removed from sale, or the actual writers should be compensated from the proceeds. But Michael Bellesiles' unprofessional conduct is of a much deeper dye than these. At least the plagiarized works presumably were accurate representations of the past.

Concealed Weapons

Arming America, by contrast, repeatedly twists the truth to fit Bellesiles' thesis. Bellesiles begins with the European legacy of gun use, especially in England, where, he informs readers, the government "outlawed the use of guns by commoners." Such a policy might seem improbable once muskets were adopted for use by the English militia, which meant that large numbers of commoners must have had and used guns. But Bellesiles writes that the use of guns outside military practice was discouraged "and even forbidden," and that "all guns used by the militia were stored in government magazines."

Throughout the book, Bellesiles equates the presence of guns with violent crime, and he contends that what little violence did occur in England tended to take place "at public festivals, often between competing teams of Morris dancers." Bellesiles' assertion that these charming, white-costumed folk dancers, sporting bells at their knees, were responsible for most of the era's violence struck one British historian as Monty Pythonesque. The article in the English Bill of Rights of 1689 guaranteeing to English Protestants -- then 90 percent of the population -- "arms for their defence, suitable to their condition and as allowed by law," is spun by Bellesiles into proof the government "preferred to maintain tight control of guns."

From start to finish the records tell a different story: of widespread gun use by all classes, from nobles to laborers; laws exhorting men to practice with muskets; militia guns kept in the owners' homes; highways filled with robbers brandishing pistols; and, after 1689, a right to be armed for personal defense that English courts in the 18th century saw as belonging to all Protestants, and in the 19th century to all Englishmen.

On to America, where Bellesiles finds guns rare, expensive, highly regulated, inefficient, unwanted by civilians, and nearly useless for military purposes or hunting. He reports that colonists "often perceived the ax as the equal of a gun" and that there was a "complete failure" on their part to care for guns "or to learn their proper use." As a result of popular indifference and neglect, he says, all guns were made into "the property of the state, subject to storage in central storehouses," so thoroughly regulated that "no gun ever belonged unqualifiedly to an individual." As for hunting with guns, Bellesiles writes, "From the start hunting was an inessential luxury, associated either with the elite gentleman with too much time on his hands, or with the poorest fringes of civilization, if not outright savagery." Bellesiles dismisses the militia, which most historians acknowledge was not up to the standards of professional troops, as "little more than a political gesture," most members having no usable guns.

What is his evidence for these startling conclusions? To document the scarcity of guns, Bellesiles relies on his tabulation of 11,170 estate inventories from 40 counties over the years 1765 to 1859. From these he calculates that in colonial America 14.7 percent of adult white men owned firearms, 53 percent of which were either old or broken. On the frontier, he finds, only 14.2 percent of men owned guns. Not until 1849 to 1859, Bellesiles reports, did the percentages of households with guns increase, largely due to the successful advertising of Samuel Colt. For proof that guns were not used in hunting, he relies on a survey of some 80 travel accounts written between 1750 and 1860. His portrayal of the militia draws on an investigation of government records, letters, and other documents.

The Story Unravels

Here are some snapshots from the unraveling of Arming America:

Fall 2000. Even before the book is in print, having read both Bellesiles' 1996 article that formed the core of the book and advance press coverage, Northwestern University law professor James Lindgren asks to see Bellesiles' probate database. Bellesiles tells him there is no database, only yellow legal pads on which he made pencil ticks representing guns listed in the probate records. Unfortunately, Bellesiles reports, the pads were irreparably damaged in a May 2000 flood at Emory University.

As the book becomes available, scholars find serious mistakes in their own areas of expertise. I find English and colonial facts wrong. Clayton Cramer, the author of two books on gun history, finds extensive evidence of hunting with guns even in the accounts Bellesiles says he read. Discrepancies emerge in the book's claims about low homicide rates, the militia's preparedness, the range and reloading time of muskets, the supposed preference of Americans for the ax over the gun, laws requiring militia guns to be housed in government arsenals, and comments of the Founders.

Readers point out that Arming America lacks any specific information about the 11,170 probates examined, how many there were from any one county or any one time period, where Bellesiles examined them, and how he computed the national averages. Lindgren (a specialist in early American probates), Justin Heather, and other scholars eventually discover that Bellesiles' computations are mathematically impossible. To obtain his national gun ownership average of 14.7 percent, for example, the number of probates from frontier counties would have had to be improbably large.

The archivists at the federal archives in East Point, Georgia, where Bellesiles told Lindgren he did most of the probate work, insist they never had the probate records. Bellesiles changes his story, saying he crisscrossed the country for 10 years visiting individual county archives. He can't remember precisely which ones.

October and November 2000. Scholars examining the only set of probate records Bellesiles specifically cited, those for Providence, Rhode Island, find that nearly everything he says about them is mistaken. Bellesiles claimed the 186 inventories from early Providence were "all for property-owning adult males" and that, while guns appeared in 48 percent, more than half of them were "evaluated as old and of poor quality" and many were "state-owned." But three independent scholars find 17 of the estates were owned by women, 62 percent had guns, only 9 percent of the guns were described as old and of poor quality, and only one was state-owned.

December 2000. As debates about Arming America rage on discussion boards, Bellesiles claims he is getting threatening e-mails. He retreats from online debates and gets a secret e-mail address.

May and June 2001. In response to Bellesiles' claims that he has received death threats and that a fire was set against his office door, the governing councils of the American Historical Association, the Omohundro Institute of Early American History and Culture, and other organizations post resolutions condemning such harassment and defending civil exchange.

September 2001. One of the 40 counties from which Bellesiles said he drew data on gun ownership was San Francisco, where he claimed to have examined 1850s probates at the Superior Court. In response to inquiries from National Review's Melissa Seckora, the court's archivist reports that all 19th-century documents were destroyed in the great earthquake and fire of 1906. When questioned about this, Bellesiles says he must have seen these documents somewhere else, suggesting several other California libraries. None of them has the records either.

To support his contentions about the poor quality of guns, Bellesiles began posting on his Web site Vermont probate records listing guns described as old and broken. A scholar and a Boston Globe reporter examine the originals and find no such descriptions. Told of this, Bellesiles claims his Web site must have been hacked by someone who altered the documents. Emory University investigates but finds no evidence of hacking.

November 2001. In an unprecedented move, Emory demands that Bellesiles offer a "reasoned, measured, de-tailed, point-by-point response" to his critics. His reply, published by the Organization of American Historians in its online newsletter, instead complains of his ill treatment while addressing little of substance. Oddly, the reply refers to only 12 probates from San Francisco, in contrast to the "few hundred" he claimed to have examined when Seckora interviewed him.

January 2002. Bellesiles claims to have found the missing San Francisco probates at the Contra Costa County Historical Archive. He sends copies of these documents to reporters. The Contra Costa archivists point out that not one of these documents is from a San Francisco estate. Furthermore, they have no record that Bellesiles ever visited the collection prior to 2002.

The January 2002 issue of The William and Mary Quarterly carries a symposium in which three of the four scholars asked to examine Arming America, Gloria Main, Ira Gruber, and Randolph Roth, cite gross error and misuse of sources. Main, a professor of history at the University of Colorado at Boulder, finds Bellesiles' claim that probate inventories were complete "incredible." She says the amazing difference between Bellesiles' low figure for gun ownership in Maryland, 7 percent, and hers, 76 percent, "boggles the mind." Gruber, a professor of history at Rice University, concludes Bellesiles worked "to minimize the importance of guns, militia, and war in early America" using "a consistently biased reading of sources" and "careless uses of evidence and context." Roth, a professor of history at Ohio State University, finds Bellesiles' homicide information is "misleading or wrong" in every instance.

February 2002. Emory launches an internal review, later followed by appointment of an external panel to examine Bellesiles' work. By this point nearly all of Bellesiles' early boosters have gone silent.

The Victim Pose

Contrary to Bellesiles' pretense that he accidentally stepped into a political minefield, the introduction to Arming America is intentionally polemical. The book opens with a description of a toddler featured on the cover of Time magazine "dressed in camouflage and clutching a high-powered rifle." Despite a religious upbringing, the boy at age 11 joined a 13-year-old friend in shooting children at his Arkansas school. Bellesiles comments, "The temptation of a gun can trump a claim of faith in God and all dreams of childhood innocence."

he gun control movement's need for supportive scholarship is what gave Arming America so much visibility. The New York Times heralded Bellesiles' results five months before publication, although the reporter who lauded its findings complained to me that he had not even been able to see the galleys. Many early reviewers seemed so eager to extol the book that they suspended their critical faculties -- either that, or they were taken in by the trappings of scholarship or the wild approval of others they trusted. Politics propelled the book to dizzying heights.

But when critics began to point out the book's obvious flaws, Bellesiles, his publisher, and his supporters dismissed the criticisms as politically motivated. Columbia University's Bancroft Committee apparently did not bother to read the critical reviews before awarding Arming America the nation's most prestigious prize in American history. (In December, the trustees of Columbia University finally voted to rescind the honor, the first time they have had to take such action in the more than 50 years of the award's history. They have also asked that the $4,000 in prize money be returned.) We early critics were confronted with Bellesiles' complaints about hate mail and death threats, tales that prompted professional historical organizations to leap to his defense. To challenge Bellesiles' work was to risk being lumped together with "gun nuts" and extremists.

Bellesiles wrapped himself in the mantle of victimhood. But occasionally it slipped, and a different persona peered out. In an essay in the Chicago-Kent Law Review the year Arming America appeared, he portrayed scholars who found evidence of an individual right to be armed as "post-modernists" for whom "facts do not matter," partisans uninterested in "the hard and time-consuming task of archival research." He warned that "the next stop is Holocaust denial." When Clayton Cramer, an amateur historian, questioned some of Bellesiles' evidence in a polite letter to The Chronicle of Higher Education, Bellesiles lashed out:

"Clayton Cramer hates my research and has for some time....It is not my intention to give an introductory history lesson, but as a nonhistorian, Mr. Cramer may not appreciate that historians do not just chronicle the past."

In June 2002, when the soundness of his scholarship had become so suspect that the National Endowment for the Humanities stripped its name from his Newberry Library fellowship, Bellesiles told a British reporter that the move "reawakened the ghosts of McCarthyism." He described it as a "political decision that should send chills through academics everywhere and is clearly intended as a warning to any scholar who dares to work on a controversial topic."

Closure of a sort came on October 25, 2002, with the report of three distinguished historians -- Stanley Katz of Princeton University, Hanna Gray of the University of Chicago, and Laurel Thatcher Ulrich of Harvard -- charged by Emory University to investigate Bellesiles' use of probate records and militia counts. Their mission was surprisingly narrow, given all the doubts that had been raised about the veracity of Bellesiles' work. But they agreed that "the best that can be said of his work with the probate and militia records is that he is guilty of unprofessional and misleading work. Every aspect of his work in the probate records is deeply flawed."

The panelists found evaluating the table in which Bellesiles charted his probate findings "an exercise in frustration because it is almost impossible to tell where Bellesiles got his information." They reported that "we had the same question as Gloria Main [in her William and Mary Quarterly article]: 'Did no editors or referees ever ask that he supply this basic information?'" They found "egregious misrepresentation" in the construction of that table and evidence of "falsification" in, among other flaws, Bellesiles' silent omission of the years 1774�76 "precisely because they failed to show low numbers of guns." Applying Emory University's guidelines, the committee concluded there were "other serious deviations 'from accepted practices in carrying out or reporting results from research.'"

The committee members deemed Bellesiles' work with militia records "superficial and thesis-driven." They agreed with Ira Gruber, another of the scholars in the William and Mary Quarterly symposium, that Bellesiles' "efforts to minimize the importance of guns, militia, and war in early America...founder on a consistently biased reading of sources and on careless uses of evidence and context." Finally, they concluded that his professional scholarship "falls short" on every count and that "his scholarly integrity is seriously in question."

But there were two problems with the committee's charge that Bellesiles has been quick to capitalize on. First, it was to investigate only the use of probate and militia records, despite evidence that he misused many other sources. Second, the Emory standard that "intentional fabrication or falsification of research data" be found, a standard devised with the sciences in mind, was unrealistic, since much that was intentional could be written off as extreme bias or sloppy method.

Hence, although the three scholars could not find that Bellesiles' use of Vermont and Providence probates constituted "intentional fabrication or falsification," they were "seriously troubled by his scholarly conduct" and "sloppy scholarship," which "does not prove a deliberate attempt to mislead, however misleading the result." Even in the case of the nonexistent San Francisco data, they could not "prove" he "simply invented his California research, but neither do we have confidence that the Contra Costa inventories resolve the problem." Only in the case of the key probate table did they conclude there was deliberate falsification.

Trust, but Verify

Bellesiles resigned from his position at Emory after the report was issued, saying he could not "continue to teach in what I feel is a hostile environment," but he nonetheless has tried to minimize the significance of the committee's conclusions. "Obviously," Bellesiles told a reporter for the Chicago Tribune, "they were very angry at me." As for his mathematically impossible statistics, he shrugged, "I've never been good at math." In any event, he informed the Tribune, he wrote a book with 1,347 footnotes, and the panel found problems with only five of them.

Yet it clearly is not true that the essence of the book remains "unchallenged," as Bellesiles claimed in his response to the committee. Virtually every aspect of it -- including his conclusions about English weapon use, hunting, axes vs. guns, homicide rates, and the inefficiency of firearms -- has been shown to rely on faulty, at times nonexistent, evidence and biased research. This is a matter of fact, not interpretation, as Bellesiles would have it. Scholars should waste no more time on this discredited volume.

Checking footnotes is tedious, and everyone makes some mistakes in the course of a long, detailed work. But experts in a field, asked to review a manuscript, can ferret out those few monographs where the errors are wholesale and the facts misrepresented. The Bellesiles case underlines how essential it is that historians take their critical role seriously and always place it before their political inclinations. Our professional integrity demands it.

Indeed, Bellesiles' rise and fall demonstrate how damaging to any cause a dishonest work of scholarship can ultimately be. Haverford College historian Roger Lane, a gun control supporter who gave Arming America a laudatory review, now writes of Bellesiles: "I'm mad at the guy. He suckered me. It's entirely clear to me that he's made up a lot of these records. He's betrayed us. He's betrayed the cause."

University presses and other academic publishers routinely put scholarly works through a rigorous peer review. But that is not necessarily true of commercial publishers. They must be more scrupulous before foisting on the public a clever piece of fiction disguised as a work of history. And when a book proves to have been unscholarly, or plagiarized, it should be withdrawn. Knopf, to its credit, in January decided to stop selling Arming America. But Simon and Schuster still publishes Ambrose's plagiarized works.

The news media also play a key role. The New York Times and many other news outlets heralded Arming America, while their bias in favor of gun control has led them to ignore scholarly books uncongenial to the cause. In this instance most of the press ignored, or dismissed as politically motivated, growing skepticism about Bellesiles' evidence. The slowness of scholarly journals to review books makes the general press all the more essential if the public is to be alerted that something is amiss. Four reporters deserve special thanks for bringing out the facts: Kimberley Strassel of The Wall Street Journal, Melissa Seckora of National Review, David Mehegan of The Boston Globe, and David Skinner of The Weekly Standard. Thanks are also due Stacy McCain of The Washington Times and Robert Worth of The New York Times.

Those who wonder how Bellesiles thought he could get away with this forget that he nearly did. The book won a major prize. Court opinions began citing his findings. He told a reporter his only regret was that he delayed fighting back, that "for too long I thought this was only a tempest in a footnote."

All those scholars and reporters from across the political spectrum whose exhaustive investigative work exposed Arming America for the high-stakes fraud that it was deserve the gratitude of the historical profession and the American people. Scholarship relies on trust, and sometimes that trust is misplaced.

Gun Control's Twisted Outcome

jmalcolm@bentley.edu (Joyce Lee Malcolm) — Fri, 01 Nov 2002 00:00:00 EST

On a June evening two years ago, Dan Rather made many stiff British upper lips quiver by reporting that England had a crime problem and that, apart from murder, "theirs is worse than ours." The response was swift and sharp. "Have a Nice Daydream," The Mirror, a London daily, shot back, reporting: "Britain reacted with fury and disbelief last night to claims by American newsmen that crime and violence are worse here than in the US." But sandwiched between the article's battery of official denials -- "totally misleading," "a huge over-simplification," "astounding and outrageous" -- and a compilation of lurid crimes from "the wild west culture on the other side of the Atlantic where every other car is carrying a gun," The Mirror conceded that the CBS anchorman was correct. Except for murder and rape, it admitted, "Britain has overtaken the US for all major crimes."

In the two years since Dan Rather was so roundly rebuked, violence in England has gotten markedly worse. Over the course of a few days in the summer of 2001, gun-toting men burst into an English court and freed two defendants; a shooting outside a London nightclub left five women and three men wounded; and two men were machine-gunned to death in a residential neighborhood of north London. And on New Year's Day this year a 19-year-old girl walking on a main street in east London was shot in the head by a thief who wanted her mobile phone. London police are now looking to New York City police for advice.

None of this was supposed to happen in the country whose stringent gun laws and 1997 ban on handguns have been hailed as the "gold standard" of gun control. For the better part of a century, British governments have pursued a strategy for domestic safety that a 1992 Economist article characterized as requiring "a restraint on personal liberty that seems, in most civilised countries, essential to the happiness of others," a policy the magazine found at odds with "America's Vigilante Values." The safety of English people has been staked on the thesis that fewer private guns means less crime. The government believes that any weapons in the hands of men and women, however law-abiding, pose a danger, and that disarming them lessens the chance that criminals will get or use weapons.

The results -- the toughest firearm restrictions of any democracy -- are credited by the world's gun control advocates with producing a low rate of violent crime. U.S. Supreme Court Justice Lewis Powell reflected this conventional wisdom when, in a 1988 speech to the American Bar Association, he attributed England's low rates of violent crime to the fact that "private ownership of guns is strictly controlled."

In reality, the English approach has not re-duced violent crime. Instead it has left law-abiding citizens at the mercy of criminals who are confident that their victims have neither the means nor the legal right to resist them. Imitating this model would be a public safety disaster for the United States.

The illusion that the English government had protected its citizens by disarming them seemed credible because few realized the country had an astonishingly low level of armed crime even before guns were restricted. A government study for the years 1890-92, for example, found only three handgun homicides, an average of one a year, in a population of 30 million. In 1904 there were only four armed robberies in London, then the largest city in the world. A hundred years and many gun laws later, the BBC reported that England's firearms restrictions "seem to have had little impact in the criminal underworld." Guns are virtually outlawed, and, as the old slogan predicted, only outlaws have guns. Worse, they are increasingly ready to use them.

Nearly five centuries of growing civility ended in 1954. Violent crime has been climbing ever since. Last December, London's Evening Standard reported that armed crime, with banned handguns the weapon of choice, was "rocketing." In the two years following the 1997 handgun ban, the use of handguns in crime rose by 40 percent, and the upward trend has continued. From April to November 2001, the number of people robbed at gunpoint in London rose 53 percent.

Gun crime is just part of an increasingly lawless environment. From 1991 to 1995, crimes against the person in England's inner cities increased 91 percent. And in the four years from 1997 to 2001, the rate of violent crime more than doubled. Your chances of being mugged in London are now six times greater than in New York. England's rates of assault, robbery, and burglary are far higher than America's, and 53 percent of English burglaries occur while occupants are at home, compared with 13 percent in the U.S., where burglars admit to fearing armed homeowners more than the police. In a United Nations study of crime in 18 developed nations published in July, England and Wales led the Western world's crime league, with nearly 55 crimes per 100 people.

This sea change in English crime followed a sea change in government policies. Gun regulations have been part of a more general disarmament based on the proposition that people don't need to protect themselves because society will protect them. It also will protect their neighbors: Police advise those who witness a crime to "walk on by" and let the professionals handle it.

This is a reversal of centuries of common law that not only permitted but expected individuals to defend themselves, their families, and their neighbors when other help was not available. It was a legal tradition passed on to Americans. Personal security was ranked first among an individual's rights by William Blackstone, the great 18th-century exponent of the common law. It was a right, he argued, that no government could take away, since no government could protect the individual in his moment of need. A century later Blackstone's illustrious successor, A.V. Dicey, cautioned, "discourage self-help and loyal subjects become the slaves of ruffians."

But modern English governments have put public order ahead of the individual's right to personal safety. First the government clamped down on private possession of guns; then it forbade people to carry any article that might be used for self-defense; finally, the vigor of that self-defense was to be judged by what, in hindsight, seemed "reasonable in the circumstances."

The 1920 Firearms Act was the first serious British restriction on guns. Although crime was low in England in 1920, the government feared massive labor disruption and a Bolshevik revolution. In the circumstances, permitting the people to remain armed must have seemed an unnecessary risk. And so the new policy of disarming the public began. The Firearms Act required a would-be gun owner to obtain a certificate from the local chief of police, who was charged with determining whether the applicant had a good reason for possessing a weapon and was fit to do so. All very sensible. Parliament was assured that the intention was to keep weapons out of the hands of criminals and other dangerous persons. Yet from the start the law's enforcement was far more restrictive, and Home Office instructions to police -- classified until 1989 -- periodically narrowed the criteria.

At first police were instructed that it would be a good reason to have a revolver if a person "lives in a solitary house, where protection against thieves and burglars is essential, or has been exposed to definite threats to life on account of his performance of some public duty." By 1937 police were to discourage applications to possess firearms for house or personal protection. In 1964 they were told "it should hardly ever be necessary to anyone to possess a firearm for the protection of his house or person" and that "this principle should hold good even in the case of banks and firms who desire to protect valuables or large quantities of money."

In 1969 police were informed "it should never be necessary for anyone to possess a firearm for the protection of his house or person." These changes were made without public knowledge or debate. Their enforcement has consumed hundreds of thousands of police hours. Finally, in 1997 handguns were banned. Proposed exemptions for handicapped shooters and the British Olympic team were rejected.

Even more sweeping was the 1953 Prevention of Crime Act, which made it illegal to carry in a public place any article "made, adapted, or intended" for an offensive purpose "without lawful authority or excuse." Carrying something to protect yourself was branded antisocial. Any item carried for possible defense automatically became an offensive weapon. Police were given extensive power to stop and search everyone. Individuals found with offensive items were guilty until proven innocent.

During the debate over the Prevention of Crime Act in the House of Commons, a member from Northern Ireland told his colleagues of a woman employed by Parliament who had to cross a lonely heath on her route home and had armed herself with a knitting needle. A month earlier, she had driven off a youth who tried to snatch her handbag by jabbing him "on a tender part of his body." Was it to be an offense to carry a knitting needle? The attorney general assured the M.P. that the woman might be found to have a reasonable excuse but added that the public should be discouraged "from going about with offensive weapons in their pockets; it is the duty of society to protect them."

Another M.P. pointed out that while "society ought to undertake the defense of its members, nevertheless one has to remember that there are many places where society cannot get, or cannot get there in time. On those occasions a man has to defend himself and those whom he is escorting. It is not very much consolation that society will come forward a great deal later, pick up the bits, and punish the violent offender."

In the House of Lords, Lord Saltoun argued: "The object of a weapon was to assist weakness to cope with strength and it is this ability that the bill was framed to destroy. I do not think any government has the right, though they may very well have the power, to deprive people for whom they are responsible of the right to defend themselves." But he added: "Unless there is not only a right but also a fundamental willingness amongst the people to defend themselves, no police force, however large, can do it."

That willingness was further undermined by a broad revision of criminal law in 1967 that altered the legal standard for self-defense. Now everything turns on what seems to be "reasonable" force against an assailant, considered after the fact. As Glanville Williams notes in his Textbook of Criminal Law, that requirement is "now stated in such mitigated terms as to cast doubt on whether it [self-defense] still forms part of the law."

The original common law standard was similar to what still prevails in the U.S. Americans are free to carry articles for their protection, and in 33 states law-abiding citizens may carry concealed guns. Americans may defend themselves with deadly force if they believe that an attacker is about to kill or seriously injure them, or to prevent a violent crime. Our courts are mindful that, as Justice Oliver Wendell Holmes observed, "detached reflection cannot be demanded in the presence of an upraised knife."

But English courts have interpreted the 1953 act strictly and zealously. Among articles found illegally carried with offensive intentions are a sandbag, a pickaxe handle, a stone, and a drum of pepper. "Any article is capable of being an offensive weapon," concede the authors of Smith and Hogan Criminal Law, a popular legal text, although they add that if the article is unlikely to cause an injury the onus of proving intent to do so would be "very heavy."

The 1967 act has not been helpful to those obliged to defend themselves either. Granville Williams points out: "For some reason that is not clear, the courts occasionally seem to regard the scandal of the killing of a robber as of greater moment than the safety of the robber's victim in respect of his person and property."

A sampling of cases illustrates the impact of these measures:

� In 1973 a young man running on a road at night was stopped by the police and found to be carrying a length of steel, a cycle chain, and a metal clock weight. He explained that a gang of youths had been after him. At his hearing it was found he had been threatened and had previously notified the police. The justices agreed he had a valid reason to carry the weapons. Indeed, 16 days later he was attacked and beaten so badly he was hospitalized. But the prosecutor appealed the ruling, and the appellate judges insisted that carrying a weapon must be related to an imminent and immediate threat. They sent the case back to the lower court with directions to convict.

� In 1987 two men assaulted Eric Butler, a 56-year-old British Petroleum executive, in a London subway car, trying to strangle him and smashing his head against the door. No one came to his aid. He later testified, "My air supply was being cut off, my eyes became blurred, and I feared for my life." In desperation he unsheathed an ornamental sword blade in his walking stick and slashed at one of his attackers, stabbing the man in the stomach. The assailants were charged with wounding. Butler was tried and convicted of carrying an offensive weapon.

� In 1994 an English homeowner, armed with a toy gun, managed to detain two burglars who had broken into his house while he called the police. When the officers arrived, they arrested the homeowner for using an imitation gun to threaten or intimidate. In a similar incident the following year, when an elderly woman fired a toy cap pistol to drive off a group of youths who were threatening her, she was arrested for putting someone in fear. Now the police are pressing Parliament to make imitation guns illegal.

� In 1999 Tony Martin, a 55-year-old Norfolk farmer living alone in a shabby farmhouse, awakened to the sound of breaking glass as two burglars, both with long criminal records, burst into his home. He had been robbed six times before, and his village, like 70 percent of rural English communities, had no police presence. He sneaked downstairs with a shotgun and shot at the intruders. Martin received life in prison for killing one burglar, 10 years for wounding the second, and a year for having an unregistered shotgun. The wounded burglar, having served 18 months of a three-year sentence, is now free and has been granted �5,000 of legal assistance to sue Martin.

The failure of English policy to produce a safer society is clear, but what of British jibes about "America's vigilante values" and our much higher murder rate?

Historically, America has had a high homicide rate and England a low one. In a comparison of New York and London over a 200-year period, during most of which both populations had unrestricted access to firearms, historian Eric Monkkonen found New York's homicide rate consistently about five times London's. Monkkonen pointed out that even without guns, "the United States would still be out of step, just as it has been for two hundred years."

Legal historian Richard Maxwell Brown has argued that Americans have more homicides because English law insists an individual should retreat when attacked, whereas Americans believe they have the right to stand their ground and kill in self-defense. Americans do have more latitude to protect themselves, in keeping with traditional common law standards, but that would have had less significance before England's more restrictive policy was established in 1967.

The murder rates of the U.S. and U.K. are also affected by differences in the way each counts homicides. The FBI asks police to list every homicide as murder, even if the case isn't subsequently prosecuted or proceeds on a lesser charge, making the U.S. numbers as high as possible. By contrast, the English police "massage down" the homicide statistics, tracking each case through the courts and removing it if it is reduced to a lesser charge or determined to be an accident or self-defense, making the English numbers as low as possible.

The London-based Office of Health Economics, after a careful international study, found that while "one reason often given for the high numbers of murders and manslaughters in the United States is the easy availability of firearms...the strong correlation with racial and socio-economic variables suggests that the underlying determinants of the homicide rate are related to particular cultural factors."

Cultural differences and more-permissive legal standards notwithstanding, the English rate of violent crime has been soaring since 1991. Over the same period, America's has been falling dramatically. In 1999 The Boston Globe reported that the American murder rate, which had fluctuated by about 20 percent between 1974 and 1991, was "in startling free-fall." We have had nine consecutive years of sharply declining violent crime. As a result the English and American murder rates are converging. In 1981 the American rate was 8.7 times the English rate, in 1995 it was 5.7 times the English rate, and the latest study puts it at 3.5 times.

Preliminary figures for the U.S. this year show an increase, although of less than 1 percent, in the overall number of violent crimes, with homicide increases in certain cities, which criminologists attribute to gang violence, the poor economy, and the release from prison of many offenders. Yet Americans still enjoy a substantially lower rate of violent crime than England, without the "restraint on personal liberty" English governments have seen as necessary. Rather than permit individuals more scope to defend themselves, Prime Minister Tony Blair's government plans to combat crime by extending those "restraints on personal liberty": removing the prohibition against double jeopardy so people can be tried twice for the same crime, making hearsay evidence admissible in court, and letting jurors know of a suspect's previous crimes.

This is a cautionary tale. America's founders, like their English forebears, regarded personal security as first of the three primary rights of mankind. That was the main reason for including a right for individuals to be armed in the U.S. Constitution. Not everyone needs to avail himself or herself of that right. It is a dangerous right. But leaving personal protection to the police is also dangerous.

The English government has effectively abolished the right of Englishmen, confirmed in their 1689 Bill of Rights, to "have arms for their defence," insisting upon a monopoly of force it can succeed in imposing only on law-abiding citizens. It has come perilously close to depriving its people of the ability to protect themselves at all, and the result is a more, not less, dangerous society. Despite the English tendency to decry America's "vigilante values," English policy makers would do well to consider a return to these crucial common law values, which stood them so well in the past.

Concealed Weapons

jmalcolm@bentley.edu (Joyce Lee Malcolm) — Mon, 01 Jan 2001 00:00:00 EST