Law Professor Adam Winkler is a specialist in American constitutional law whose work has been cited and quoted in landmark Supreme Court cases. His book, "Gun Fight: The Battle Over the Right to Bear Arms in America" (W.W. Norton, 2011) argues that the right to own guns can be reconciled with gun-control laws. This op-ed appeared originally in Newsday on July 27, 2012.
It came as no surprise Thursday when the White House announced that President Barack Obama would not seek any new gun control in the wake of the Aurora movie theater massacre. Obama can't afford to alienate gun enthusiasts, who've been taught by the National Rifle Association that gun laws infringe the Second Amendment. The truth, however, is that America has regulated guns since its earliest days. Gun control is as much a part of the story of guns in the United States as the Second Amendment and the six-shooter.
The founding fathers who wrote the Second Amendment didn't believe the right to keep and bear arms was a libertarian license for anyone to have any gun anywhere he wanted. While they believed that the right to have arms was an individual right and that government should never be able to completely disarm the people, they balanced gun rights with public safety.
The founders barred large portions of the population from possessing guns, including slaves and free blacks, who might revolt if armed. The founders also restricted gun ownership by law-abiding white people, such as those who refused to swear allegiance to the Revolution. Those weren't traitors fighting for the British. They were among the approximately 40 percent of the citizenry who, in exercise of their freedom of conscience, thought 13 disorganized colonies taking on the most powerful nation in the world was a bad idea.
Of course, we shouldn't mimic the founders and adopt gun laws that discriminate on the basis of race or political ideology. The point is that the founders limited access to guns when they thought it necessary to preserve the public welfare. Even though the threats to the public good we see today -- such as criminals or mentally ill people with guns -- are different, we should still be able to do what the founders did and find the appropriate balance.
The founders also imposed onerous restrictions on gun owners through militia laws. Men over the age of 18 were expected to serve in the citizen militia, armed and ready to defend the nation. They would be forced to appear, with guns in hand, at public musters where they and their guns would be inspected. The founders had an early form of gun registration: States conducted door-to-door surveys to identify where the guns were in case the government had need of them.
The founders even had their own version of an "individual mandate." In 1792, Congress required all free men of age to outfit themselves with a military-style firearm.
Gun control was commonplace in the Wild West, too -- the very heart of America's gun culture. We all know the image: a gunslinger walking down Main Street, a gun on each hip, a rifle in his arms, ammo strapped across his chest, a hidden Derringer pistol beneath his pant leg. He's so loaded down with iron it's remarkable he can mount his horse.
There's only one problem with this picture. It's pure myth.
Frontier towns in the west -- places like Deadwood, S.D., and Tombstone, Ariz. -- had the most restrictive gun laws in the nation. When residents of Dodge City, Kan., formed their municipal government, what was the very first law they passed? One prohibiting the carrying of concealed weapons.
When a visitor arrived in a frontier town, he was required to check his guns with the marshal. The gun owner would receive a token to reclaim the guns when he left town. It's not much different from how New Yorkers check their coats at a restaurant in winter.
Once Dodge City expanded its laws to bar the carrying of guns openly too, a sign posted on the main street warned, "The Carrying of Firearms Strictly Prohibited."
And these laws were enforced. The illegal carrying of a firearm was the second most common basis for arrests in the old west -- right behind drunk and disorderly conduct. Gun violence was also rare, and gunfights extraordinary. Frontier towns averaged less than two homicides per year. Turns out there really wasn't any need to get out of Dodge.
The first major federal gun control laws were passed in the 1930s in response to the mob violence of the Prohibition Era. Invented for use in the trenches of World War I, the Tommy gun -- the first easily portable machine gun -- quickly became the weapon of choice for Al Capone's gang and notorious desperadoes like Bonnie and Clyde.
Appearing before Congress, Karl Frederick, the NRA's president, was asked whether the Second Amendment imposed any limits on gun control. Remarkably, he answered that he had "not given it any study from that point of view." Indeed, the NRA at that time supported restrictive gun control laws, even drafting and promoting in state after state laws curtailing the concealed carry of firearms.
Today's NRA files lawsuits and pushes legislatures to overturn these very same laws.
The change in the organization came in the 1970s. Considerable credit for that, surprisingly, belongs to the Black Panther Party. In the late 1960s, civil rights radicals took up arms as part of the "by any means necessary" philosophy. In an often forgotten incident, 30 armed Panthers invaded the California state capital building to protest enactment of new gun laws. This, coupled with the assassinations of Martin Luther King Jr. and Robert Kennedy, spurred a wave of gun restrictions. Social order seemed to be breaking down.
Ironically, these laws, which were designed in part to restrict access to guns by black, left-leading, urban radicals sparked a backlash among rural, white conservatives. As gun bans spread from D.C. to Chicago, conservative whites began to worry that the government was coming to take away their guns next. Gun control, they thought, was just another example of failed big government.
Many of those people became single-issue voters. After Republicans won a majority in the House of Representatives in 1994 -- for the first time in half a century -- President Bill Clinton blamed it on the gun control laws he'd successfully pushed through Congress. His agenda on other issues was stymied. Ever since, Democrats have, by and large, stayed away from gun control.
Today there are calls for reauthorization of the federal law barring assault weapons. But even though Obama says he supports the ban and, as governor of Massachusetts, Mitt Romney signed one, those calls are likely to go unheeded. The original assault weapons ban was one of the two laws that sparked the backlash against Clinton.
Is it really any wonder that neither presidential candidate is going to push for it -- or, for that matter, any gun control?