Reviewed by Mark Rush, American University of Sharjah, U.A.E.
Gun Fight is a pleasure to read from the moment you pick it up. Winkler has written a masterful, readable, enjoyable account of the events leading up to and transpiring around District of Columbia v. Heller where the Supreme Court declared DC’s restrictions on handgun ownership to be unconstitutional and asserted that the Second Amendment embodied an individual right to own a gun in self-defense. The book is an ideal combination of legal and constitutional analysis, historical discussion and thoughtful commentary. It is a great read for professionals and scholars and would, as well, be an ideal complement to any course on constitutional law or law and politics.
Winkler maintains and demonstrates that extreme, irreconcilable groups have hijacked the gun control debate. On the one hand, there are those who would declare gun ownership to be an absolute and inalienable right. On the other, there are those who would essentially disarm the civilian population. The agendas of the two groups are as antithetical with constitutional history as they are to each other.
Throughout U.S. history, gun ownership has been protected in myriad ways by state constitutions and legislation. As well, guns have been subject to a host of regulations ranging from those animated by racism to those aimed at keeping the peace in frontier towns in the Wild West. Alas, Winkler notes, the gun control debate is now characterized by the same polarization that infects contemporary debates such as those about abortion, healthcare, and gay marriage. As a result, hyperbole has replaced any sense of history and polarization ensures, at least for now, that no rational, moderate solution is likely to arise that will not be preceded by protracted, expensive and contentious political and legal battles. Heller, it seems, is just one phase of what is bound to be a protracted legal battle.
Winkler casts his tale by navigating through contemporary gun control debates, the development of the Heller decision itself, historical vignettes demonstrating the intricacy of the Second Amendment rights, and short visits to the inner workings of the Supreme Court. In this way, he avoids turning the book into a tedious “good cop/bad cop” rant or a dry recitation of legal principles. Instead, he demonstrates the complexity of Second Amendment rights (by extension, he demonstrates that all such constitutional debates are quite complex) and the very human, popular sources from which constitutional conflicts arise.
Even the most ardent advocate of gun control would sympathize with the reasons why the Heller plaintiffs decided to pursue litigation. Heller wished to keep a gun for self-protection in D.C. He was no so-called “Gun Nut.” He had a clear, understandable desire for self-protection after finding gunshot holes in his front door. Tom Palmer feared for his safety because he was a [*321] homosexual. Had he not been able to carry a gun, he might have found himself dead at the hands of a surly group of gay-bashers. Shelley Parker, a nurse, simply wanted to rid her streets of drug dealers. Without a gun, she would have been at their mercy because the police could not provide her with constant protection.
Winkler moves from the particularities of the Heller plaintiffs to a broader, more striking account of the role gun ownership played in the Civil Rights movement and how the violence perpetrated against blacks precipitated the decision by the Black Panthers to arm themselves – legally – in self-defense. The absence of any state protection of their rights and the leftover shadows of lynchings across the south that led to their decision to arm should give pause to anyone who would disarm the civilian population. While peaceful civil disobedience may have served a purpose, it was equally clear that protesters were in dire need of defense against racist adversaries and, in some cases, the state authorities that were failing to protect them as they protested.
The Black Panther leadership of Huey Newton and Bobby Seale seized upon Second Amendment rights as part of their strategy. The wisdom and political and legal savvy of these leaders caught their adversaries and state authorities off guard. Suddenly, the protesters were legally armed, yet not firing their guns. As a result of this and the rise in crime in the 1960s, law and order-inspired gun control advocates became quite outspoken and successful towards the end of that decade. However, they suddenly encountered opposition from supporters when, in the 1970s it became clear that the impact of laws passed in response partially to the racial uprisings of the 1960s extended far beyond their original targets.
An ironic aspect of this discussion is that the Black Panthers funded their movement in part by selling copies of Mao’s Little Red Book. Winkler notes that “[t]he Panthers liked the Chinese manifesto in part because of Mao’s famous statement, ’Political power grows out of the barrel of a gun.’” (p.234). Winkler might have tied this part of the discussion up a bit more effectively by circling back to his discussion of Al Capone and organized crime in the previous chapter (“Gangsters, Guns and G-Men”). The journey back to the days of Al Capone and the rise of violent organized crime should have a sobering effect on even the most unrepentant gun owner. Yet, Capone’s famous quote to the effect of “You can get much farther with a kind word and a gun than you can with a kind word alone” adds a powerful counterweight to the strategy of the Black Panthers.
This aspect of Winkler’s books is absolutely outstanding and poignant. He demonstrates the extent to which Second Amendment debates arise from marginal and extreme social circumstances. One would hope that the government could be trusted to keep the peace. Yet, for whatever reason, by perfidy or impotence, sometimes the government fails to protect some of the people or control others. Then, it becomes clear that the people must have recourse to peaceful means of resistance or civil disobedience and, if necessary, less peaceful means of self-protection. In the case of government perfidy, the Black Panthers used guns for self-defense against unjust law. In the case of impotence (and perfidy), Capone used them against the law.[*322]
Thus, the history of the Second Amendment embodies, in some ways, nothing less than an extension of John Locke’s discussion of the people’s right to make an appeal to heaven and rise up against an unjust or impotent government. Cast in this perspective, the contemporary scholarly debate about the scope and definition of the individual right to possess a gun seems relatively inconsequential. In Chapter 8, “By Any Means Necessary,” Winkler describes Alan Gura’s plan of attacking the D.C. law and promoting an individual right to gun ownership in his argument before the Supreme Court. Much to the dismay of his supporters, Gura acknowledged that the gun right was subject to reasonable restrictions such as licensing (pp.228-229). Yet, he maintained that the underpinning right of self-defense was foundational. Ultimately, Gura was successful. But, the hyperbole and division that characterized the commentary and debate that followed his victory indicates that striking down the D.C. handgun restrictions did as much to reheat the debate about the scope of the Second Amendment as it did to resolve it.
In the limited space of this review, it is impossible to do justice to the scope of Winkler’s study and the beauty of his writing. Gun Fight reads as easily as the best pieces of journalism. Winkler pulls no punches in his discussions, yet he is never gratuitous. His accounts of the scandalous, falsified historical “research” of authors such as Bellisles (2000) demonstrate the depths to which advocates on both sides of contentious political debates will go to advance their cause. His accounts of the Wild West are informative and humorous: “Frontier towns handled guns the way a Boston restaurant today handles overcoats in the winter” (p.165).
In closing, Gun Fight is a well-written, well-researched, enjoyable account of the gun control debates. It is an accessible, informative piece of scholarship that would serve as an ideal complement to any constitutional law text because it provides the background details of everything from U.S. from history to the process of getting a case before the Supreme Court.
Gun Fight embodies what the study of law and politics is and should be. It was a pleasure to read this book. Our colleagues are sure to keep this on their bookshelves and assign it in their classes.
Bellisles, Michael A. 2000. Arming America: The Origins of a National Gun Culture. New York: Alfred A. Knopf.CASE REFERENCE:
District of Columbia v. Heller 554 U.S. 570 (2008).
Copyright by the Author, Mark Rush.