A Feminist Theory of the Second Amendment

A Feminist Theory of the Second Amendment

by Erin Solaro 

I wasn’t going to write this for a while, I figured I’d write about Israel for a time, but I expect there will be plenty of opportunity to do so later this summer. 

Instead, I thought I would write about McDonald v. Chicago, the Supreme Court decision that incorporates the Second Amendment.  What this means is that the Second Amendment, the right to keep and bear arms, applies to the several states, not just the federal government. 

I have not read the whole decision.  Even the best legal writing (think Elizabeth Warren, Catherine MacKinnon and Akhil Reed Amar, all of whom write like angels) is dense for those of us who are not lawyers by training.  But I am working my way through it, and for once I find myself agreeing with Justices Thomas and Scalia.  Now, I do not particularly respect Justice Scalia because he is a strict constructionist.  This means that he believes that the Constitution’s interpretation is fundamentally rooted in a time when male human beings could own other human beings, and women, regardless of their race, were not human beings, much less citizens for any purposes other than paying taxes and bearing children, particularly sons, and could if their husbands so pleased, be treated as beneath all human, much less civic dignity, and they had little recourse.

And even the Framers knew that this was wrong.  Knew that Civil War over slavery was a threat running through the heart of the new republic, knew serious questions over the human worth and civic dignity of women was a threat to the mastery of every man over “his household.”  Patrick Henry, in particular, was alive to the human worth and civic dignity of women, knew it was an issue that America had to consider, and it is one reason why he is substantially read out of the canon of the American Revolution. 

But Justice Thomas’ opinion is something different.  I have never liked him—I’ve always believed Professor Hill—and his opinions on the bench have not inspired my confidence.  Nevertheless, I have also had some sympathy for him as a man who has not ascribed to the conventional political pieties.

Folks, Justice Thomas has delivered the goods here.  This is a superb decision, cutting like a sword down to down to the heart of the whole matter, which is to whom does the Second Amendment apply?  Who are the citizens to whom are due all the privileges and immunities of US citizenship—including the bearing of arms for personal defense?  Is it only some of us or is it all of us?  Yes, his opinion is limited and he does his resolute best to ignore the implications of it, but he is right, and for the right reasons, and unlike Scalia, who also for once is right for more-or-less the right reasons here, he does not stoop to crabbed nastiness and ugly sarcasm.  Instead, he addresses us with absolute dignity about some of the most sustained evil in American history, evil that is almost certainly a living memory of the men and women he grew up amongst. 

Justice Thomas writes, “I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment ‘fully applicable to the States.’ Ante, at 1. I write separately because I believe there is a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment’s text and history.” 

This is the history of black people in America and especially in the aftermath of our Civil War, when the South did all it could to restore black people to the status of slaves, and the keeping and bearing of arms by free black people, particularly men, especially firearms, such as rifles and pistols, as well as edged weapons like bowie knives and dirks, was central to that status.  Depriving black men of arms was central to the institution of slavery, in particular; keeping and bearing and using arms, in defense of themselves, their women, their children, their homes and their crops, was central to freed slaves remaining freed citizens.  Of the Reconstructionist Amendments, the Fourteenth was in fact, as Thomas convincingly demonstrates, particularly concerned with black people keeping and bearing arms–at home and also on their persons.  And those who exercise themselves about the lethality of today’s handguns know nothing about the lethality of modern rifles–or that the huge, slow, minié balls of the Civil War era almost guaranteed amputation or death from any hit whatsoever at close range.  When the Federal Government ceased to enforce reconstruction, black people were disarmed and returned to conditions close to slavery, an era that we call the Jim Crow South and that only began to end with the Civil Rights movement.  Needless to say, private and frankly often illegal use of firearms, including concealed carry, on the part of organized black citizens groups and militias–let us strip that honorable word from the white supremacist movement–such as the Deacons for Defense and Justice played a significant role in keeping civil rights workers alive.  The truth is that Dr. King’s creed of nonviolence was tactical only, not philosophical.  Lynching–and mutilation and torture, including rape, beforehand–was a very real threat.

Thomas then explains the Fourteenth Amendment to us, an amendment that is on its face revolutionary, as revolutionary and thus as strictly constructionist as anything Antonin Scalia claims to believe in—and Thomas Paine did.  His opinion is worth citing at length, and I shall do so. 

After the war, a series of constitutional amendments were adopted to repair the Nation from the damage slavery had caused. The provision at issue here, §1 of the Fourteenth Amendment, significantly altered our system of government. The first sentence of that section provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This unambiguously overruled this Court’s contrary holding in Dred Scott v. Sandford, 19 How. 393 (1857), that the Constitution did not recognize black Americans as citizens of the United States or their own State. Id., at 405–406.

The meaning of §1’s next sentence has divided this Court for many years. That sentence begins with the command that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” On its face, this appears to grant the persons just made United States citizens a certain collection of rights—i.e., privileges or immunities— attributable to that status.

 Thomas continues:

Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” ante, at 19 (citing Duncan v. Louisiana, 391 U. S. 145, 149 (1968)), and “‘deeply rooted in this Nation’s history and tradition,’” ante, at 19 (quoting Washington v. Glucksberg, 521 U. S. 702, 721 (1997)). I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.

In doing so, he properly invalidates the legal “reasoning” (if one may call it such) in the United States v. Cruikshank

There, the Court held that members of a white militia who had brutally murdered as many as 165 black Louisianians congregating outside a courthouse had not deprived the victims of their privileges as American citizens to peaceably assemble or to keep and bear arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008). According to the Court, the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because “[t]he right . . . existed long before the adoption of the Constitution.” 92 U. S., at 551 (emphasis added). Similarly, the Court held that the right to keep and bear arms was not a privilege of United States citizenship because it was not “in any manner dependent upon that instrument for its existence.” Id., at 553. In other words, the reason the Framers codified the right to bear arms in the Second Amendment—its nature as an inalienable right that pre-existed the Constitution’s adoption—was the very reason citizens could not enforce it against States through the Fourteenth. That circular reasoning effectively has been the Court’s last word on the Privileges or Immunities Clause.

Whereupon Justice Thomas proceeds to give us a lesson in American history, both Constitutional and racial, showing how deeply entwined the concepts of liberty and the free access to arms, their keeping and bearing by peaceable citizens who are written and read out of the structures of power.  This lesson is ugly:  full of mass murder, flogging, brutal beating, rape, mutilation, lynching, burnings.  And these are the crimes we know about.

Thomas concludes his opinion by writing with impeccable understatement:

In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty. The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery. There is nothing about Cruikshank’s contrary holding that warrants its retention.

And then like a bell:  “I agree with the Court that the Second Amendment is fully applicable to the States. I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.”

Thank you, Justice Thomas. Happy 4th of July to you, too.


Justice Thomas’s writing beautifully displays both the strength of original intent and its limitations.  The strength of his opinion is that he shows beyond all evasion how clearly the Framers of both the 14th and 2nd Amendments understood that the bearing of arms is essential to personal as well as political liberty.  Particularly when those bearing arms, or deprived of bearing arms were, to put it mildly, not of the ruling classes, and organizations of state and social power, such as law enforcement and the militia, were used not to protect them, but to control them.

The weakness of original intent is that it is often used as a conservative doctrine to mean, “We shall think no thought that has not been thought before.”  Strict original intent means that you have to argue whether a plain reading of the Constitution in our day would apply in a similar way to similar issues that nevertheless involve different groups of people than those the Founders were familiar with.  (Think of the rights of women to vote, or of gay people to marry, or of women, like men, to bear arms in the military, particularly in the combat arms.)  Thomas’ opinion is weakened by his adherence to strict original intent, for refuses to carry his analysis into the contemporary world, where people who are in some way or another not seen as worthy of the regard of the state—and thus beneficiaries of law enforcement—are exceedingly vulnerable to those who wish them harm, and their safety would benefit immeasurably by their ownership (and when appropriate also, concealed carry) of firearms, including handguns.

Poor people, especially black, particularly living in neighborhoods beset by violent criminals, of course, particularly fit this profile; the more so if they are acting as citizens intent upon resisting criminals.  Also gay people and Jews.  But particularly women, an issue that one would think Thomas would have addressed it only in passing, the more so since he was a signatory to the majority opinion in Castle Rock v. Gonzales, which holds that “Respondent did not, for Due Process Clause purposes, have a property interest in police enforcement of the restraining order against her husband.”  The police, you see, refused to enforce a restraining order against her husband, who murdered their three children, then killed himself.  More about that case, and its significance later in this essay.  Suffice it to say here that Castle Rock was the capstone case establishing that people (gender neutral although there is nothing gender-neutral about the cases) have no right to police protection, no matter how evil the faith of the police.

Before proceeding further, it is important to get one definition up front. 

Feminism is no more and no less than the human and civic equality of women.  Nothing is more central to the status of human being and citizen, and thus to feminism, than the absolute integrity of the body:  our bodies are not our husbands’, our children’s, vehicles for the consumption of vast quantities of food or to be manipulated and surgically altered according to the fashions of the day, whether our breasts be “too small” or our feet and clitorises be ‘too large.”  Nor are our bodies and what is done to them, despite the claims of First Amendment “purists (otherwise known as pornographers and their apologists), the pornographer’s speech.  Our bodies are biologically meant to be strong, well-fed and supple with muscle—and they are ours, in order that we might fully inhabit our lives as human beings.  Yet nothing is more contentious in feminism than the resolute insistence that women, feminist women, should keep and bear concealed arms (and by this I particularly mean handguns) for self-defense.

I now turn squarely to this issue.

Let’s begin by pretending we live in a country in which male-on-female violence is more common and far more socially acceptable than male-on-male violence, and everyone thinks this is normal and natural.  

Except we’re not pretending because we do.  It’s America, not Afghanistan. 

I’m not arguing moral equivalence:  I’ve been to Afghanistan.  If you want to talk to me about moral equivalence, go there first yourself—I’ll tell you how to do it—and then we’ll talk.  If you still want to.  Which I doubt you will.  But I’m also not exaggerating. 

Let’s run the numbers.

We’ll start with the FBI’s Uniform Crime Reports, which count murders, and they are a statistical aberration in terms of the general profile of violent crime.  Of the 14,180 murders and non-negligent manslaughters committed in 2008, 11,059 of the dead were male, 3,078, were female and 43 were unknown.  Of the 16,277 killers, 10,568 were male, 1,176 female and 4,533 unknown.  In 2008, known females made up only 21.7% of murder victims and 7.2% of murderers, a startling statistical aberration when we turn to the Bureau of Justice Statistics (BJS) National Crime Victimization Survey (NCVS) for 2008. 

NCVS statistics are drawn from a statistically representative sample of US households involving crimes, reported and unreported, committed against people age 12 or older.  In 2008, there were some  4,856,510 violent crimes, excluding murder (because these statistics are complied from interviewing victims):  551,830 robberies, 839,940 aggravated assaults, and 3,260,920 simple assaults, as well as 203,830 rapes and sexual assaults.  The official BJS violent crime victimization rate in 2008, per 1,000 individuals over the age of 12 is  21.3 for men and 17.3 for women.  In other words, women make up 44.8% of violent crime victims, while men account for approximately 86% of violent offenders.

This is even more startling for several reasons. 

The first is the tremendous decrease in violent crime in modern America.  According to the BJS, in 1973, America’s violent crime victimization rate was  68:1000 males and 31.4:1000 females.  In the following 35 years, we reduced violence against men, largely intra-male, by 69.1%, and it is not simply due to improved treatment of wounds.  We have reduced violence against women, also largely male, by only 44.9% against women.  There has also been a decrease in intimate partner homicides.  Intimate partners are spouses, ex-spouses, and current (not former) boyfriends and girlfriends of either sex.  Intimate partner homicides, which overwhelmingly involve heterosexual couples, are virtually always the conclusion of severe male-on-female abuse, including rape.  This is true regardless of who kills whom and even when, as is extraordinarily rare, the female’s killing of the male is non-confrontational.  In 1976, 1,304 males and 1,587 females were killed by their intimate partners; in 2005, 329 males and 1,181 females were killed by their intimate partners.  In other words, females have largely stopped killing their male torturers; the same is not true for male torturers their female intimates.  And according to Diane Rosenfeld, a Harvard expert on domestic violence, male intimates who torture their female victims use the murders of other women by their intimate abusers to further terrorize their intimates into submission.

The second is that the number of rapes and sexual assaults, as well as domestic violence, are underestimated by the NCVS:  15% of all rapes and sexual assaults are committed against children under age of 12, a number in itself drawn from the 2004 NCVS, yet the NCVS asks about victims of violent crime who are older than 12.  But that is not the only reason:  the NCVS estimates that 41.4% of rape and sexual assault were reported to police, likely an extraordinary overestimation. 

Doctor David Lisak of the University of Massachusetts, Boston, is one of the world’s foremost experts on undetected rapists.  He writes in ‘Understanding the Predatory Nature of Sexual Violence”:  “In a study of 1,882 university men conducted in the Boston area, 120 rapists were identified. These 120 undetected rapists were responsible for 483 rapes. Of the 120 rapists, 44 had committed a single rape, while 76 (63% of them) were serial rapists who accounted for 439 of the 483 rapes. These 76 serial rapists had also committed more than 1,000 other crimes of violence, from nonpenetrating acts of sexual assault, to physical and sexual abuse of children, to battery of domestic partners. None of these undetected rapists had been prosecuted for these crimes.”  It is enormously likely that any woman who lives with such a man will not tell an anonymous caller of his crimes against her or her children.  In order to avoid antagonizing their torturers, abused women commonly underplay the enormity of the crimes against them.  In order to preserve their own sanity, they very rarely acknowledge the gravity of the crimes against them until they are safe, and sometimes not even then.

For as Lisak writes, “In the hierarchy of violent crimes, as measured by sentencing guidelines, rape typically ranks only second to homicide, and in some cases it ranks even higher.”   And rightly so.  Rape and sexual assault make it very plain to women and girls, who according to the BJS are 81.2% of the victims of these crimes, that they may not even control access to the interior of their bodies.  Intimate partner violence makes it very plain to women and girls, who are 84.7% of the victims, that they cannot trust men and boys they usually think they love and often genuinely do. 

And the law is on the side of the criminals.

You are now going to tell me I’m wrong, that domestic violence laws discriminate against men, that women complaining about rape stigmatizes male sexuality and generally indulge in all the other whining that is nothing but misogyny and an apology for rape. 

So now we turn back to US case law, culminating in Castle Rock v. Gonzales (2005), which finds that “individuals” have no right to police protection.  While I would not, if I were a man, take any comfort from this body of law, it is nevertheless drawn almost entirely from male-on-female intimate partner violence.  Only one case involved a male victim, Joshua DeShaney, but as he was an exceedingly young juvenile, suit upon his behalf was brought by his mother against her husband, the child’s father, and we may assume with very little fear of contradiction he brutalized her as well. 

In Riss v. New York, 240 N.E.2d 860 (N.Y. 1968), the City of New York disclaimed all responsibility to protect Linda Riss from her ex-boyfriend, who had terrorized her for months before hiring a man to throw lye into her face, blinding and marring her.   In Hartzler v. City of San Jose, 46 Cal. App. 3d 6 (1st Dist. 1975), the San Jose, CA police were found not liable for allowing Ruth Brunell to be stabbed to death by her husband, despite ample warning from her that he was en route to murder her.  In Warren v. District of Columbia, 444 A.2d 1 (D.C. Ct. of Ap., 1981), despite repeated calls to the police, three women were held captive, raped, robbed, beaten, and forced to commit sexual acts upon each other for 14 hours.  The DC police department was exonerated because it is a “fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen.” In DeShaney v. Winnebago County Department of Social Services, 109 S.Ct. 998 (1989) held that Joshua DeShaney, who was savagely beaten into permanent and severe brain damage by his father, was not entitled to police protection even though local officials knew of his abuse and said they were willing to protect him but refused to liberate him from his father’s custody.  In DeShaney, the court held “The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.”  In Balistreri v. Pacifica Police Department (901 F.2d 696 9th Cir. 1990), the court ruled that Ms. Balistreri had no right to police enforcement of a restraining order against her estranged husband, who beat and otherwise terrorized her because he did not have custody of her.  (Note that his father’s custody of him did not require the law to protect Joshua DeShaney.)  And things have not improved since 1990; they have in fact, gotten worse.  In Castle Rock v. Gonzales, 545 U.S. 748 (2005), the Supreme Court ruled 7-2 that Castle Rock was not liable for the outright, willful refusal of its police department to enforce a restraining order held by Jessica Gonzales against her husband, who promptly murdered their three children.  In fact, according to Rosenfeld, approximately a quarter of all women murdered by their abusers have restraining orders against them. 

It is worth stating bluntly that none of these cases were tragedies, in which police officers acted urgently on the information, but as is the norm for even the best-trained, most honorable, energetic and conscientious officers and departments, were simply too late.   The universally dishonorable nature of police conduct in these cases, combined with the statistics, represent an utter contempt for the lives and liberty of women and their children.

We are blinded to the sine qua non both of humanity and citizenship, which is a person’s inalienable right to her body, period, full stop, regardless of her relationships or fertility.  It is a crime—and should be punished as such—to touch us, much less to penetrate our bodies without our full, willing, undrugged, uncoerced, completely free—consent, let alone ever strike us.  Force always, automatically, and fully, invalidates the very idea of consent, just as the lack of meaningful consent trumps the absence of overt physical force—yet the law of rape says, “by force and without consent.”  And no one can validly consent to be harmed or damaged in any way.  No matter how much she loves or cares for the man who does it to her.  And that when he harms her, he harms society itself.  (And you know very well I am not talking about peering into people’s windows to see if she’s most enthusiastically asking him to pull her hair or bite her neck, and he is energetically but nevertheless kindly obliging her, then hauling them into court, so let’s just not play these games.)

The fact that I even have to write this speaks volumes.  The fact that we even have to have this discussion speaks volumes.  When Jefferson spoke of unalienable rights, he was speaking of rights that can neither be given nor taken; that can be violated or unexercised but not abrogated.  A right is a precondition of human existence, and the first right is the right to your life and your own body.  

The famed and brilliant legal scholar Catherine MacKinnon once asked if women are human.  Writing on the Universal Declaration of Human Rights, a document that is mostly honored in the breech of men’s lives, but nevertheless envisions them as human in a way it simply does not envision women, MacKinnon offered a litany of crimes against women that, taken together, hugely circumscribe our lives.  They range from deliberate impoverishment (refusing to pay women a living wage for themselves, let alone for their children too), slavery (pornography, prostitution, child and forced marriage, forced reproduction and abortion) to torture (rape) to mutilation (female genital cutting, which is not remotely comparable to male circumcision) to murder (burning to death for inadequate dowries).  When men are treated in comparable ways, these crimes are denounced as profound injustices, if not also crimes against humanity—and often violations of their civil rights as well.  However, when these crimes are committed against women, they are not only often enjoyed, “women’s entitlement to an end of these conditions [is] still openly debated based on cultural rights, speech rights, religious rights, sexual freedom, free market—as if women are social signifiers, pimps’ speech, sacred or sexual fetishes, natural resources, chattel, everything but human beings[.]”  She then asked a simple, powerful question.  “When will women be human?”

And the answer is, very simply, when we insist upon our own humanity and are prepared to defend it, by force of arms if necessary. 

I repeat myself.  Nothing, nothing, is more controversial amongst feminist, or for that matter many “liberal” men, then women bearing arms to the end of defending themselves, whether against strangers or acquaintances.  You will hear any number of things described as empowering, feminist choices, rather than sometimes the only half-rational option in a hideous situation:  abortion, prostitution, pornography.  If you suggest that women fight back with one of the best equalizers for physical strength that is available, you will hear any number of things. 

One of my personal favorites is that a feminist like myself, who suggests women bear arms in self-defense as citizens, meaning as members of a society that is harmed when their physical integrity is violated, does more harm to feminism than sexists.  Which by definition includes rapists and wife beaters, pornographers and pimps and johns and human traffickers.  Another favorite argument is, I can’t help but think you, or any other woman, has made some mistakes in her acquaintances if she ever has to defend herself with a gun.  Deliberately heedless of the modus operandi exposed by Dr. Lisak in “The Predatory Nature of Sexual Assault,” that undetected, often so-called “date” rapists are far from the victims themselves of too much alcohol (if so, how could they function sexually?) and too little communication.  Instead, they are in fact violent, predatory men

extremely adept at identifying “likely” victims, and testing prospective victims’ boundaries;

plan and premeditate their attacks, using sophisticated strategies to groom their victims for attack, and to isolate them physically; 

use “instrumental” not gratuitous violence;

exhibit strong impulse control and use only as much violence as is needed to terrify and coerce their victims into submission;

use psychological weapons—power, control, manipulation, and threats—backed up by physical force, and almost never resort to weapons such as knives or guns;

and use alcohol deliberately to render victims more vulnerable to attack, or completely unconscious. 

The truth is that to question the victim’s actions or choices is to assume that women are morally responsible for men because any man, given the opportunity, will do such things to women.  And the rule, very often spoken, of a woman’s life in dealing with such men, who as Lisak noted test and probe boundaries to see if she is a safe target:  placate, don’t fight back, appease.  A man touches you in a way or a place you don’t like?  If he touches you at all, for example, by social-kissing you when it would be inappropriate to do so to a man?  Don’t let him know that it angers or insults or humiliates you.  No matter how rude he is, or how threatening, or how insulting.  If you get angry, he will feel he can get angry back, and then who knows what he might do?  If he touches you and you knock his hand off of you, and he decks you, you might not have started it, but you escalated it and you have only yourself to blame.  If he drives you from a place you have a legal right to be, and you go, but you give him the finger as you leave, you escalated it.  And if you go out with him or go over to his place or let him into yours, thinking you like him and you might like to get to know him a bit better, maybe even make out a bit, well, what did you expect?  Why didn’t you…well, you didn’t have to fight back, but you should have done more than just say No.

We, men and women alike, might think that someone who is almost always larger and stronger than his partner, might find it an absolute moral imperative, not to speak of common courtesy and perhaps extremely arousing, to make certain she quite wanted him in her body.  We might regard affection or prior sexual intimacy or desire not as something to be exploited, but any such exploitation as a betrayal of “the highest favor a woman can offer a man,” to borrow from the great British historian of the French army, Sir Alastair Horne in Verdun:  The Price of Glory.  We might think that women have the absolute right to go about our legal business without assault, harassment, or insult, and the man who does such things has only himself to blame if the woman is angered.  And if he responds to legitimate anger with abuse, he not only started it, he escalated—indeed asked for anything the woman does to terminate the situation, including killing. 

We might.  But we don’t.  Often even those of us who would be shocked to our very cores by the thought of behaving otherwise.  And it is not just men who say these things.  It is women, too.  Think not only of “men’s rights activists” but of women who are worried about being “fair” and “sex-positive.”

The truth is that for some people, especially those hurt by sexual violence, discussing prevention is just another way to name, shame, and blame the “real criminal”, the victim—for it is the victims of sexual crimes who are almost universally on trial.  Self-defense instructors of various sorts who do train women who have been victimized often find it incredibly important to reassure their students that at the time of their crime, they could not have done anything, and they did not fail.  They are, in fact, alive to prevent it from happening again. 

So when I write that women’s defense of themselves—of our lives and the absolutely liberty of our bodies—is central to our citizenship, and that women, especially women who call themselves feminists , needing to support all women who fight back, it is in this context that I write.  This is not a call for women to jeopardize themselves by ineffective resistance.  Nor is this blame for not resisting, or second guessing ways that were inadequate to stop the perpetrator.  I do not, in any way, find women culpable in the crimes committed against them.  The criminal is always responsible for his behavior.  To lessen in any way the criminal’s responsibility by questioning his victim’s behavior, behavior the criminal often attempted to elicit, is to admit that, if a woman, you are playing Let’s pretend that if I don’t do that, nothing bad will happen to me.  If you are a man, your questioning means that you would rape in similar circumstances.  Whether you would or would not, this is what you are saying about yourself.  And your friends.

And it is a sad fact that for all the men who rape with impunity, and all the more men who like the benefits that accrue to them, both real (in terms of money and power) and fictive (in terms of thinking themselves better than women, even when they make less and don’t dare touch a woman who doesn’t want them), it is not just men who do not want women to defend themselves effectively.  For some of both sexes, this is a subset of the belief that no one but a police officer should defend a citizen from a criminal.  Of course, many of those who espouse that belief are the first to point out that the cops cannot be trusted, especially by women, to do the right thing. 

There are only two types of men who do not want women to be able to defend themselves.  The first are their assailants and their apologists and propagandists, the collaborators and accessories after the fact.  We need say no more other than that some of these men do enjoy inadequate, ineffective resistance from women.  It adds some frission to the rape, as well as justifies them in brutalizing their victims.  Not only in their eyes, but also in the eyes of society.  Some of these men cloak their defense of male violence against women in anti-violence terms, particularly if a woman uses a handgun.  In the name of ending male-on-male violence, women are supposed to fight hand-to-hand against men who substantially overtop and outweigh us.  (Marine and Army infantrymen are not so stupid, but women apparently are.)

Then there are honest, worthy men, who in the language of our times have difficulties or issues with women violently defending themselves.  At best, and very often sincerely, they believe that as men are violent to women, it is a male responsibility to defend women.  However, with or without a man, a woman still remains, and her life and liberty are worth defending.  If such men genuinely wish to protect women, the worst thing they can do is infantilize the women in their lives by insisting they will physically protect them.  The best thing they can do is aggressively denounce, shame, and ostracize all men who are predatory and violent towards women, and openly scorn and revile the belief that this is ever acceptable—and the more the woman likes or desires or has had sex with the man, the deeper the betrayal, the worse the violation.  And if these men are intelligent and honest enough to admit that a woman’s unalienable human right to the integrity of her body and its defense does not trump their discomfort with the idea, they will look further into themselves.  For a woman to need a man to defend her against other men—defense which she has, let us be honest, often gained through a sexual relationship, against, let us also be honest, often against male sexual violence—is the classic definition of a protection racket.

We come now to those women who do not want women to defend themselves.  

Yes, there are some professional victims who claim to be feminists, who want women to continue to be brutalized, if only as a way of maintaining their grant funding (never mind that there are far easier ways to earn a living), or to claim unearned moral superiority. 

But there are three profoundly serious reasons why women believe women should not defend themselves, particularly by force of arms.

The first is that some women genuinely, reasonably, fear that the unspoken rule for women when dealing with predatory and violent men—placate and appease—means that women who successfully fight back, particularly with firearms, will be judged more harshly than men.  On April 25, 2009, Sara Brereton boarded a Seattle bus with her (presumptively female) partner and their 4 children.  They were seated at the front of the bus.  Emmanuel Salters got up from the back of the bus, walked up to them, stood next to them, swayed back and forth, then “fell” onto Brereton.  Understandable offended by this assault, she pushed him off of her, saying, “Excuse me!”  Harsh words were then exchanged with her by Salters.  Eventually, she and her partner (the Seattle Post-Intelligencer refuses to identify Brereton’s partner even by sex) exited the bus with their children.  What is fascinating about this case is that both the Post-Intelligencer and Seattle Times apparently edited their websites to remove the fact that Salter was harassing Ms. Brereton and her partner for their sexual orientation and their children, and in fact rubbed his crotch against Brereton. 

In short, Brereton allowed herself and her family to be driven from a place that was legally theirs, and where they were engaged in legal, not to say by the rational standard of the human and civic equality of women to men, inoffensive, behavior.   Perhaps foolishly, but entirely reasonably, Brereton and an unidentified member of her family, probably her partner, made “obscene gestures” to Salters as they walked away from the bus.  Salters then made the bus driver make an unscheduled stop, got off and followed the family.  When he closed to within 20 feet, which is the distance within which someone armed with a handgun is vulnerable to someone who is not, Brereton showed him her weapon and told him to go away.  Undeterred, he closed the distance between them to spit upon her, cursing as he did so; she shot him when he was within 1 or 2 feet of her body.   Perhaps fortunately, Mr. Salters lived.  Yet despite the fact that Ms. Brereton cooperated with the police and both witnesses and a Metro surveillance camera video confirmed her account of the shooting, she was jailed for two days and it took seven months for the King County prosecutor’s office to admit that her shooting was an entirely justifiable act of self-defense.  Had an armed man removed his family from a place where he had been insulted and sexually assaulted without the most remote provocation, with no more than angry but civil words and a final gesture of disgust as he left, a few would laud his restraint.  Most would question his manhood.  Yet Ms. Brereton violated the unspoken law that a woman must placate and appease her attacker.

Second, women also fear that if a woman takes measures to defend herself, if she is raped or otherwise victimized, her perpetrator and his defense attorneys will argue that it wasn’t a crime because she was able to defend herself.  Never mind that, as Lisak pointed out, men who prey upon women take enormous care to groom their victims as a way of attempting to guarantee their physical safety, liberty, and the sympathy of bystanders should their behavior come to light.  We may only think of the sympathetic excuses made for Mike Tyson and Kobe Bryant, Roman Polanski and Bill Clinton.

And finally, women, often feminists, argue that it is not the responsibility of women to defend themselves, it is the responsibility of men not to be violent, and that violent self-defense only means putting more violence into the world.  The first part is true but the second part is not because it misses the point of effective self-defense.  The deliberate refusal (we are not speaking of genuine inability or lack of preparedness) of the peaceable citizen to respond to violence visited upon her with violence that dominates the escalatory ladder in order to terminate the escalation—killing per se is not the issue—rewards the criminal and makes it more likely he will continue to victimize citizens and damage their civilization.

In other words, for women to refuse to encourage ourselves and other women to respond to criminal violence with violently effective self-defense as we are able, then demand that the law and society uphold and praise our right to have done so, is to refuse to acknowledge that we have the unalienable, human right of self-defense.  It is to refuse to acknowledge that we are human and citizens.  And until women insist that our bodies and access to them are ours, always and everywhere, full stop, and defend that sine qua non of humanity and citizenship with deadly force, men will not.  If we do not value our lives and liberty, our intimates may but our laws and our society will not.

This brings us to the bearing of arms, particularly handguns, by women.  Do not presume to tell me the Founders didn’t know from handguns, especially not in the context of military arms.  I bid you note only that when President Washington was buried, his horse, saddled, with the General’s pistols in their holsters near the pommel, was led in his funeral cortege.  Many equestrian portraits of him show him with those pistols, holstered at the pommel of his saddle.  Anyone who thinks handguns are not modern military arms had best acquaint herself with the Marine Corps’ marksmanship badges:  crossed rifles for rifle marksmanship, of course, and crossed pistols for…yes, indeed.

Which brings us to handguns, as a shorthand for arms, particularly concealed carry.  Handguns are the sine qua non of self-defense for women.  This is not because they are magic.  They are not.  You need to not only know how to use them, you need, if you are going to own and carry one for self-defense, to be utterly and completely willing to kill another human being, much as you hope never to have to do so.  This is not sophistry.  Many is the woman (or man) out there who has had to kill in self-defense, who did everything they could to dissuade an attacker who would not be deterred.  I will not say, Good for them, because these righteous shooters often have nightmares for years after the fact.  This is the normal reaction of a good human being who, never wanting to hurt another never preyed upon another, but deeply grieves killing their would-be predator.  I am, however, glad that these citizens were not killed.  And when wielded by a citizen resolutely set upon self-defense, handguns are tremendously effective.

(Liberal) criminologist Gary Kleck of Florida State University is the world’s preeminent expert on defensive gun use; his research was used in D.C. v. Heller, which overturned Washington, DC’s handgun ban. After the handgun ban was passed in 1976, homicides increased, and even when they dropped, the proportion of homicides committed with handguns was higher than before the ban was passed.  (This is similarly true for Chicago, as noted by the Court in McDonald.)  In Jeff Worley’s article about Heller, “In Defense of Self-Defense,” Kleck notes that the common pro-gun-control claim, that when victims attempt to use guns defensively, which they did approximately 2.5 million times in 1993, for example, nearly three times as often as the 850,000 criminals used guns in that year, offenders will take them away and use them on the victim is simply false.  (The emphasis is his.)

Over the period from 1997 through 2006, an annual average of 4.8 police officers in the U.S. were killed with their own guns, out of a total of 665,555 full-time, sworn officers in the nation. … [As for civilian crime victims being hurt because they used a gun to defend themselves] It wasn’t using the gun that got them hurt. [“Researchers reported instances of people being hurt and using guns defensively, but these were cases where someone was first hurt and then used the gun for self protection, Kleck explained.”] And once this flaw in the research was fixed, it was found that people who use guns for protection are almost never injured after that. … Criminals interviewed in prison indicate that they have refrained from committing crimes because they believed a potential victim might have a gun. … Victim defensive use of guns almost never angers or otherwise provokes offenders into attacking and injuring the resisting victims. It’s extremely rare that once a victim shows or uses a gun, he is injured. … [“In any case, Kleck says, summarizing this crime scenario, it is clear that regardless of whether gun use occasionally provokes the offender, the net effect of victim gun use is to reduce the likelihood that the offender will hurt the victim.”]

Kleck has also run statistical simulations that suggest that if criminals substitute long guns (rifles and shotguns) for handguns, the result would be more homicides, for the simple reason that these weapons have longer ranges and are more lethal.  They are also harder for a citizen to retain should the criminal close with her or him.

Very few defensive uses of guns involve the citizen shooting, much less killing, the criminal:  it is generally the citizen’s resolve to kill that ends the crime.  Anyone who genuinely believes or knows herself or himself incapable of killing, even to defend the liberty of her body, or honestly thinks herself incapable of responsible gun ownership probably should not own and certainly shouldn’t carry a handgun.  (There are people who hunt and target-shoot in these categories.)  And that’s OK.  Those of us in that group are no more sheep than those of us who carry 24/7 are paranoid:  there is a strong tradition of conscientious objectors serving with enormous distinction, usually as medics, when America had a conscript military.  Likewise, some of us have survived crimes of such violence that the rest of us would be astonished that all it takes for us to function reasonably well is to carry 24/7.  (And only the hardest-hearted of us can read of murders like Ms. Le’s at Yale and sneer that it would have been “paranoid” of her to have to follow through on the subconscious concerns that led her to write about self-defense and armed herself against a man who overtopped her by a good head; it is very possible that if she had, she might be alive today.  She might also have been committing a crime, and few feminists would have come to her defense.)  Although the police almost always get there ex post facto, none of us can be self-sufficient and civilization means we need not even attempt to live in such an atomized state, but may draw upon the qualities of others, if only we give our own for them to draw upon. 

Nor are handguns a solution to all the abuse and violence women encounter.  However,  as a shorthand for deadly force, the ownership and concealed carry of handguns by women represents our willingness to kill to defend our lives and the absolute liberty of our bodies.  The more so because a handgun is a potent physical equalizer.  There is such a discrepancy in height between the average man and the average woman that women are physically and morally, if not legally or socially, justified in using far greater force to defend ourselves against a male assailant than any man in the exact same situation, facing the exact same assailant.  “Pick on someone your own size” is an adage that simply does not apply to male-on-female violence.  This is not so much because a handgun is deadly—although those who say that handguns are designed to kill people, are correct.  (However, people who complain about the lethality of handguns but often exempt from their criticism long guns such as rifles and shotguns do not understand that rifles are vastly more lethal and shotguns in a different universe of lethality than handguns.) 

It is rather because, with the proper equipment, a handgun is easily concealed on the body.  In other words, a concealed handgun is accessible at the intimate ranges violence is done to women, and its concealed nature means than a criminal cannot tell which citizen has decided to arm herself in anticipation of his targeting of her.  He must wait until he reveals himself as a criminal.  Thus her decision to engage in armed self-defense helps cast a protective cloak over other women and girls who will encounter her would-be perpetrator.  (Conservative) economist at the University of Maryland, College Park, John R. Lott’s findings on this point buttress the research on undetected rapists, which strongly indicates that men who are cruel and violent to women and girls they do not know are rarely likely to be kind and gentle to those they do—and vice versa.  “An additional woman carrying a concealed handgun reduces the murder rate for women by about 3 to 4 times more than an additional man carrying a concealed handgun reduces the murder rate for men,” he told the University of Chicago Press.

Moreover, the concealed carry of handguns by women to the ends of use if necessary, opens up the possibility of retributive violence against our perpetrators.  Do not describe this as what it emphatically is not.  The term vigilante justice applies only when crime victims can be reasonably sure the legal system will uphold their rights.  The statistics and case law I have previously cited make it abundantly clear that any woman who entertains that idea is deluded.  It is enormously common for women and girls to be threatened by their perpetrators with harm should they tell anyone of the crimes committed against them, and it is entirely reasonable for them to fear that their perpetrators can carry out those threats with impunity.  To argue that the criminal should not fear his victim’s retribution is to argue that the criminal should operate with absolute impunity.  To call such retribution “vigilantism” is to engage in a bold-faced lie.  Clarity matters.

Finally, the bearing of arms in self-defense as part of the community to be defended is the hallmark, old as the ancient Greek city states, of the citizen.  Who may not be so much as struck or in any way deprived of liberty, except for a crime of which he has been convicted; who has the right to enter and leave marriage at will; who not only has the right to own property but also to a living wage for his labor.  None of which has traditionally, or even in much of America today, applied to women.  And has been tolerated by women for a great many reasons, beginning with the fact that until five minutes ago, in historical time, we died in huge, terrible numbers in childbirth because of having had sex with men, often sex we wanted with men we loved, and ending with the fact that we traditionally have not borne arms.  Forbidden by custom even stronger than law to defend what was ours, we could be deprived of it with impunity.  To bear arms is to take our place, against the law, in the universal militia, which according to Title 10, Subtitle A, Part I, Chapter 13, § 311 of the United States Code, consists of only of all able-bodied males at least 17 years of age and under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States, but only female citizens of the United States who are members of the National Guard.  To take our place in the universal, unorganized militia is to insist that that we are members of this civilization, responsible for its defense, and thus when we are hurt and our rights diminished, so is our civilization.   It is to insist that we are citizens not simply in word, but in deed.  It is not only to demand our rights as citizens, it is to insist that “woman”, like “man” is a way of saying “human.”

The simple fact is that if women do not value our lives and physical integrity, which is to say our liberty, enough to kill to defend them from those who would deprive us of them, we have no right to expect men to do so.  It is one thing to help the brave, and those full of a spirited defense of their human worth.  It is another to risk oneself, not for those who cannot do the impossible, but for those who argue as a matter of principle that their attackers’ lives are worth more than their own bodily integrity.  If our lives and our freedom do not mean that much to us, we should not be surprised they mean so little to others.

This is not a call for women to resist in situations and with means that are unwise, nor is it a call for women to do the emotionally impossible for them, such as kill their fathers, or brothers, or husbands, even when they behave with unspeakable cruelty.  Rather, this a call for any woman who believes in the human worth and civic equality of women to support all women who fight back, by any means necessary, and to be prepared to do so herself if she can.  This is a call for all such women to demand the courts recognize our right to our lives, the liberty of our body, and the right to defend ourselves with any means necessary.  It is a call for all of us to do what we each individually can to affirm the human and civic worth of ourselves and other women.  It is a call for us to stop second-guessing each other’s decisions when faced by a violent, predatory human being, and instead to affirm that while anything that keeps us from being raped is good, anything we can do to end our vulnerability to rape, which primarily means stopping those who think they are entitled to our bodies and thus our lives, is better.

The late, legendary Colonel Jeff Cooper was the founder of Gunsite Academy in Arizona, one of America’s premier firearms training facilities.  “Fight back!” he wrote.  “Whenever you are offered violence, fight back! The aggressor does not fear the law, so he must be taught to fear you. Whatever the risk, and at whatever the cost, fight back.”  Granted, Cooper was taught from boyhood that a man may fight back, while women may not.  If you dispute that, I need only remind you that Colonel Cooper was an infantry Marine, a career progression to this day closed to all women. 

God made men and women free and equal.  Colonel Colt, John Moses Browning and yes, General Kalashnivkov help keep us so, if we will only accept what they give us.  Those who prey upon the trusting, the affectionate, the weak, the unaware, the vulnerable (and who amongst us is none of these things with those for whom we care?) already know this.  It is time for we who would never prey upon anyone to adopt that knowledge as our own and use it to put paid to the predators.  If we do so, we can probably get some serious, long-term remission within a generation.

It is time for feminist women, which is to say those of us who are not ashamed to insist upon the civic and human equality of women, to insist that a woman is a human being and a citizen, whose body is hers and hers alone, no matter her relationships or children or whom she loves, and thus whose life and liberty are worthy of defense, to adopt and encourage others to adopt Colonel Cooper’s motto.  Because he was right:  strategically, politically, morally

If we do not insist upon a self-respect great enough that we will take up arms to enforce that respect upon those who would deprive us of liberty and our lives, there is no reason for men to do so and many will not.  And if we will not encourage women to do this, and demand the courts respect their right to do so, we are not feminists, which is to say we do not believe in the civic and human equality of women.

Feminism is not about choice or pacifism, or the misguided notion that estrogen is anything but an anabolic steroid, and one far stronger than testosterone—which is itself not a monster hormone.  It is about equality, and the fact that women are human beings and citizens, with the inalienable right to our lives and the absolute integrity of our bodies.  It is about defending that right, not merely legally, but physically and effectively, by any means necessary—including handguns, including concealed carry.

There are plenty of things feminist women can disagree about and still be feminists.  This is not one of them.


3 thoughts on “A Feminist Theory of the Second Amendment”

  1. So to boil it down, the Court has ruled, by 5-4, that the Constitution really does mean what it says. I would feel a lot better about matters if the ruling had been by more than a one vote margin. Still, I will take what I can get and be thankful for it.

    Of course this will not end the dispute. The gun controllers will fall back, regroup, and fight another day. Mayor Daly The Infinite of Chicago has already talked about bringing a lawsuit before the UN, or the World Court, I can’t remember which.(Because the jurisidction of Chicago knows no bounds.) Justice Thomas won’t live forever, and if he steps on a rainbow before Obama can be removed, we’ll get a very different sort of judge in his place.

    The rights to life, liberty, and property are all pretty much meaningless if you deny the means to protect them.

  2. Burke:

    The interesting thing is that Justice Thomas’s opinion, which I obviously believe is the right decision for the right reason, was not the majority opinion, nor was it joined by the so-called liberal wing of the court.

    The first is something I can understand. If the privileges and immunities clause of the 14th Amendment means what it says, it applies to all of us, including women, including gay and lesbian people. Including for marriage and military service. I have been arguing for decades, since I was aware of these issues, that a proper challenge would be based not on the right to privacy, or the right to due process, but on the privileges and immunities clause. Turns out, reading one of Ruth Bader Ginsburg’s comments, that was always Plan B should the ERA be defeated. And now Ted Olson and David Boies are doing the same thing. Thomas’ opinion was another brick removed from a wall of saying, “Yes but” about the 14th amendment, in order that some citizens be more equal than others. He also goes a long way towards reversing Cruikshank, a decision that was absolutely morally repellent, as well as intellectually grotesque—so much so that I think it taints every decision derived from it.

    What I do not understand is why so many liberals feel that gun ownership should be restricted, when the simple truth is that otherwise civilized people do not become barbarians when they acquire a gun, while criminals don’t pay attention to pesky little ideas like the law–and guns equalize the physically weak with the strong, the unpopular or disenfranchised with the gang bent upon terror, the poor with the rich who have private security, alarm systems and the like.

    This is one reason why–as a liberal–I would think liberals would be far more supportive of gun ownership, especially the demographics most at risk for violent crime, than they are. It certainly saddens me that to say that publicly is often to invite abuse. Especially if one is, as I am, a feminist, particularly from other feminists.

    Best, Erin

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