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Out of Range: Why the Constitution Can't End the Battle over Guns
Few constitutional disputes maintain as powerful a grip on the public mind as the battle over the Second Amendment. The National Rifle Association and gun-control groups struggle unceasingly over a piece of the political landscape that no candidate for the presidency--and few for Congress--can afford to ignore. But who's right? Will it ever be possible to settle the argument?
In Out of Range , one of the nation's leading legal scholars takes a calm, objective look at this bitter debate. Mark V. Tushnet brings to this book a deep expertise in the Constitution, the Supreme Court, and the role of the law in American life. He breaks down the different positions on the Second Amendment, showing that it is a mistake to stereotype them. Tushnet's exploration is honest and nuanced; he finds the constitutional arguments finely balanced, which is one reason the debate has raged for so long. Along the way, he examines various experiments in public policy, from both sides, and finds little clear evidence for the practical effectiveness of any approach to gun safety and prosecution. Of course, he notes, most advocates of the right to keep and bear arms agree that it should be subject to reasonable regulation. Ultimately, Tushnet argues, our view of the Second Amendment reflects our sense of ourselves as a people. The answer to the debate will not be found in any holy
writ, but in our values and our vision of the nation.
This compact, incisive examination offers an honest and thoughtful guide to both sides of the argument, pointing the way to solutions that could calm, if not settle, this bitter dispute.
In Out of Range , one of the nation's leading legal scholars takes a calm, objective look at this bitter debate. Mark V. Tushnet brings to this book a deep expertise in the Constitution, the Supreme Court, and the role of the law in American life. He breaks down the different positions on the Second Amendment, showing that it is a mistake to stereotype them. Tushnet's exploration is honest and nuanced; he finds the constitutional arguments finely balanced, which is one reason the debate has raged for so long. Along the way, he examines various experiments in public policy, from both sides, and finds little clear evidence for the practical effectiveness of any approach to gun safety and prosecution. Of course, he notes, most advocates of the right to keep and bear arms agree that it should be subject to reasonable regulation. Ultimately, Tushnet argues, our view of the Second Amendment reflects our sense of ourselves as a people. The answer to the debate will not be found in any holy
writ, but in our values and our vision of the nation.
This compact, incisive examination offers an honest and thoughtful guide to both sides of the argument, pointing the way to solutions that could calm, if not settle, this bitter dispute.
176 pages, Hardcover
First published August 7, 2007
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About the author
Mark V. Tushnet
95 books14 followersA specialist in constitutional law and theory, including comparative constitutional law, Mark Victor Tushnet is William Nelson Cromwell Professor of Law, Emeritus at Harvard Lew School. Tushnet graduated from Harvard College and Yale Law School and served as a law clerk to Justice Thurgood Marshall. His research includes studies of constitutional review in the United States and around the world, and the creation of other "institutions for protecting constitutional democracy." He also writes in the area of legal and particularly constitutional history, with works on the development of civil rights law in the United States and a history of the Supreme Court in the 1930s.
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Displaying 1 - 7 of 7 reviews
March 27, 2018
An EXCELLENT book on the Second Amendment and the debate of guns in America. This book was written about 10 years ago, just before the Heller decision was announced, and it holds up well. Perhaps because it appeals to my moderate mindset, I think Tushnet is even-handed in presenting the different arguments, particularly regarding whether or not the Second Amendment protects and individual's right to "bear arms," of if the 2A is about militias. As I have felt from my readings before coming across this book, the Second Amendment is not nearly as clear as anyone wishes it was. Though perhaps no one will say so, given the chance everyone would love to redraft it: perhaps abolish it, or strengthen it, but everyone wishes it more clearly stated their preferences. Tushnet points out how difficult it is to draw definitive positions from the 2A and from what people of the time thought or meant with regards to guns. He leans toward believing the Founders supported some form of an individual right to have guns, but he also makes clear that over time arguments for gun control became stronger. And although many people owned guns back in the 1700s and 1800s, with America's move west, there were also a lot more gun control laws than we recognize today.
Tushnet also reviewed the research that existed in the late 2000s on the benefits of guns and gun control. Then, as now, the research is not convincing enough in any direction. Though in having read a lot over the past couple of months, it seems increasingly clear that the further right is off the mark (so to speak) in claiming that more guns result in less crime. But then, proving any incremental gun control measure will have a big impact is also tough to support.
Ultimately, Tushnet recognizes that the fight over the Second Amendment is unsolvable. Because we're not really fighting over what it says: we're fighting a never-ending culture war. Fair enough. And I'm now hitting the point that in every article or book I read on this topic, it's just a recitation of similar quotes over and over again. I have largely felt that you can pretty much pick any position and then go and find a Founder quote to support your position.
Anyway, the Second Amendment probably protects some sort of individual right to own a gun, but society is allowed to implement some protections for itself from gun violence, and the most difficult problem for gun rights advocates to deal with is the simple fact that this is a uniquely American problem, gun violence. The rest of the developed world isn't dealing with this problem like we are. But then, we're not really dealing with it. After every mass-tragedy, and after the daily tragedies of gun violence we talk less about (in poorer urban areas), many want to blame movies, music, video games, or the mentally ill, yet the rest of the developed world has all of these (in fact, they help develop some of it). So we're left wondering what it is that seems closely connected to the horrors of gun violence that the US has a LOT of, yet other countries have much less of. I know what the answer is, but politics makes dealing with it very difficult.
Tushnet also reviewed the research that existed in the late 2000s on the benefits of guns and gun control. Then, as now, the research is not convincing enough in any direction. Though in having read a lot over the past couple of months, it seems increasingly clear that the further right is off the mark (so to speak) in claiming that more guns result in less crime. But then, proving any incremental gun control measure will have a big impact is also tough to support.
Ultimately, Tushnet recognizes that the fight over the Second Amendment is unsolvable. Because we're not really fighting over what it says: we're fighting a never-ending culture war. Fair enough. And I'm now hitting the point that in every article or book I read on this topic, it's just a recitation of similar quotes over and over again. I have largely felt that you can pretty much pick any position and then go and find a Founder quote to support your position.
Anyway, the Second Amendment probably protects some sort of individual right to own a gun, but society is allowed to implement some protections for itself from gun violence, and the most difficult problem for gun rights advocates to deal with is the simple fact that this is a uniquely American problem, gun violence. The rest of the developed world isn't dealing with this problem like we are. But then, we're not really dealing with it. After every mass-tragedy, and after the daily tragedies of gun violence we talk less about (in poorer urban areas), many want to blame movies, music, video games, or the mentally ill, yet the rest of the developed world has all of these (in fact, they help develop some of it). So we're left wondering what it is that seems closely connected to the horrors of gun violence that the US has a LOT of, yet other countries have much less of. I know what the answer is, but politics makes dealing with it very difficult.
December 2, 2011
Authoritative, organized, clear, and balanced. The author provides an in-depth examination of the debate over the meaning of the Second Amendment, past and present, and its context in a larger confrontation between ideological camps in America. He presents the arguments offered by supporters of both more protection for the rights of gun owners and more restrictions on those rights, and ultimately demonstrates that although both groups sincerely believe that the Second Amendment clearly supports their views, that one-sentence Amendment is in fact quite ambiguous and both interpretations are equally valid from the perspective of Constitutional law.
He also addresses the fact that there is enough raw data, also ambiguous in toto, for both groups to present statistics that appear to solidly support their claims, but in fact, there is no data clearly showing a cause-and-effect relationship between changes in gun laws and changes in levels of gun violence.
His conclusion is that this conflict can't be settled by reference to the Second Amendment or to the data available thus far, and that the best way to approach the conflict is for the two camps to recognize that they share the same bottom-line goal, a safer and less violent society - they are arguing about the means, not the end, and all the arguments offered thus far fail to show cause-and-effect connections between differences in gun laws and different levels of public safety. A more effective strategy would be to start with what they share rather than what they disagree about, and find ways to collaborate based on those goals. Once people are engaged in respectful dialogue and shared activity, it gets a lot easier to listen to each other on even more difficult topics.
This issue is an important one for me. I am a staunch liberal, but I am also a gun collector with a concealed carry permit - I find myself frustrated because when this topic comes up so many people instantly become dogmatic, closed-minded, and judgmental rather than open to reason and new ideas. I think the Second Amendment is just as important as a protection against tyranny as the rest of the Bill of Rights, and it scares me that politicians on both sides tend to base their actions on appearances and to knowingly mislead or flat-out lie about gun-related facts and issues rather than basing their choices on accurate information or sincere desires to protect either the safety or the freedom of the public. History indicates that we can't afford to leave it to them to either inform us honestly or act in good faith on this issue, and when social change is based on fear and ideological rigidity we usually regret it later.
He also addresses the fact that there is enough raw data, also ambiguous in toto, for both groups to present statistics that appear to solidly support their claims, but in fact, there is no data clearly showing a cause-and-effect relationship between changes in gun laws and changes in levels of gun violence.
His conclusion is that this conflict can't be settled by reference to the Second Amendment or to the data available thus far, and that the best way to approach the conflict is for the two camps to recognize that they share the same bottom-line goal, a safer and less violent society - they are arguing about the means, not the end, and all the arguments offered thus far fail to show cause-and-effect connections between differences in gun laws and different levels of public safety. A more effective strategy would be to start with what they share rather than what they disagree about, and find ways to collaborate based on those goals. Once people are engaged in respectful dialogue and shared activity, it gets a lot easier to listen to each other on even more difficult topics.
This issue is an important one for me. I am a staunch liberal, but I am also a gun collector with a concealed carry permit - I find myself frustrated because when this topic comes up so many people instantly become dogmatic, closed-minded, and judgmental rather than open to reason and new ideas. I think the Second Amendment is just as important as a protection against tyranny as the rest of the Bill of Rights, and it scares me that politicians on both sides tend to base their actions on appearances and to knowingly mislead or flat-out lie about gun-related facts and issues rather than basing their choices on accurate information or sincere desires to protect either the safety or the freedom of the public. History indicates that we can't afford to leave it to them to either inform us honestly or act in good faith on this issue, and when social change is based on fear and ideological rigidity we usually regret it later.
December 22, 2024
Tushnet here reveals the eminently obvious—the debate over guns is irresolvable by facts or by logic. As is the case with all other contentious political issues today, the weapons of choice wielded by the mujahideen fighting this battle are cultural, unscathed by the tools reason. The book is illuminating. But shedding light on the shape everyone has felt to be a square doesn’t give them any more valuable information; it only illuminates a superfluous detail.
January 25, 2008
This is a pretty fair assessment of the constitutional status of the Second Amendment. Since the Supreme Court will be addressing the Second Amendment for the first time since 1939 in the next few months, it's time to read up!
January 10, 2014
Great book. A fair academic view on the gun control/2nd ammend debate. Conclusions are spot on - Gun Laws, either for more or less control, are ineffective at best. Our time would be better spent focusing on the causes of violence in our country, instead of the effect.
February 19, 2013
This is an excellent work that will challenge your thinking no matter what position you take.
Displaying 1 - 7 of 7 reviews