For the second time in American history, a
legally defined form of property has become the source of intense political
conflict. To illustrate the remarkable similarities between a current
controversy and another one nearly two centuries old, let us follow the example
of first-year economics textbooks and describe a generic form of property:
widgets.
A political crisis has arisen over widgets
because different regions of the United States see them completely differently.
In one, an almost unanimous opinion holds that widgets are sacred private
property guaranteed by the Constitution, in which the federal government has no
right to interfere. In the other, widgets are regarded as a danger to life,
health and morality. As the conflict over widgets escalates, the two sides take
more and more extreme positions. The pro side begins to argue that widgets are
not only convenient, but necessary; the cons claim that they are a stain upon
the nation. Both regions pass state laws reflecting their points of view, but
the permeability of borders within the United States means it’s hard to make
these laws fully effective. And because both sides want their view of widgets
to prevail nationwide, the issue eventually reaches the Supreme Court.
In the 21st century, widgets are guns. In the
19th century—with due respect to those involved, who were people, not
things—widgets were slaves. To be sure, the issues are not entirely
comparable. Although guns kill more than 30,000 Americans a year,
according to the CDC, they are not doing the harm that slavery did. But, while
we all agree now that slavery was evil, we violently disagree about guns.
The history of the two issues has many parallels, and points to the terrible
difficulty of reaching a consensus.
The history of slavery from 1789 to 1862 is much
more complex than most people realize. The Constitution effectively permitted
slavery, though it never referred to the institution by name and included a
provision allowing the regulation of the slave trade after 20 years had passed.
Many states in the North abolished slavery in the wake of the revolution, and
many southerners, including slaveholders, expected it to disappear. But the
picture changed after the advent of the cotton gin, the technology that shifted
the economics of slavery by creating incentive to expand the institution rather
than letting it fade. The new shape of the conflict was clarified in 1820, when
Missouri sought admission to the Union as a slave state.
In the debate on Missouri, southerners for the
first time began to argue that slavery was a positive good reflecting a true
superiority of the white race and that the federal government had no power to
prevent its spread. They were not altogether successful. Missouri was admitted
with slavery, but the Missouri Compromise banned any new slave states north of
Missouri’s southern border. During the next 40 years, southern claims steadily
escalated. By the 1850s southern politicians were arguing that slave property
must be protected not only in new territories, but even within states that had
abolished it. And when Dred Scott, a slave, sued for his freedom on the grounds
that he had lived with his master for several years in a free state, the
Supreme Court in 1857 not only refused his claim, but endorsed the idea that
Congress had no right to restrict slavery anywhere.
Meanwhile, abolition was gaining ground in the
North. The Dred Scott decision spurred the movement forward precisely because
it suggested that the free states might not have the power to remain free. And
that, in turn, moved an Illinois politician, Abraham Lincoln, to argue in the
next year, 1858, that a house divided against itself could not stand, and that
the nation would have to become all one thing or all the other.
While the gun issue has taken much longer to
mature, its outlines are extraordinarily similar. The Bill of Rights, in the
Second Amendment, did protect a right to bear arms, although it did so within
the context of the perceived need for “well-regulated” militias. Just as it was
once reasonable to expect slavery to fade away, it once seemed likely, as
militias were replaced by the organized national guard, that widespread private
gun ownership would be increasingly restricted. Both states and the federal
government passed numerous restrictions on firearm ownership, some of which
were approved by the Supreme Court. Marshalls in the late 1800s forced cowboys
to check their guns when they came to town, and Tommy guns were banned in many
particularly violent regions in the 1920s. By the time the 1950s rolled
around, guns were not a hot-button political issue in the U.S.
A series of events in the 1960s served as the
stakes-raising cotton gin of the gun controversy. A succession of political
assassinations, of figures including John and Robert Kennedy and Martin Luther
King Jr., led to calls for even tighter control, which in turn provoked a
more powerful backlash from the NRA. That organization widened its role from a
defender of hunters to an advocate for the right to own firearms. And while the
gun controversy does not divide on regional lines as rigidly as the slavery
one, it does have a powerful regional dimension. Both sides are also escalating
the fight, with some arguing that the nation must become all one thing or the
other: no restrictions anywhere or extremely strong ones everywhere. On Dec. 4,
in response to new waves of mass shootings, the New York Times put the
NRA’s fantasies into print, arguing in a front-page editorial not only that sales of
assault weapons had to be banned, but that the many thousands of them already
in private hands had to be given up. On the other side, at least one
Congressman has already argued that his open-carry right
should automatically extend throughout the United States as well, and such a
case may reach the Supreme Court sooner or later.
The gun question is one of several huge issues,
including immigration, global warming and the role of the federal government,
that have divided us into two nations with very different views of how we
should live. That is what has made this the fourth great crisis of
American national life, parallel to the American Revolution, the Civil War, and
the Depression and the Second World War, as I discussed last week. And now the
question, once again, is whether we can find a way out of this conflict that
does not involve a new civil war. Finding a peaceful way forward will be an
enormous task for whichever candidate wins in 2016. Any President who could do
so would earn a place alongside Lincoln and FDR.
2 comments:
Professor
Very interesting comparison.
We all love property rights.
Property rights have been so complicated and divisive a concept. These rights often bump up against governmental powers and responsibilities, often called police powers generically.
I gave a talk one time on what I called Big Property Rights, in the context of the mortgage backed securities melt down, among other things.
Lawyers call them creditors' rights, and even though the big banks are big debtors re their accounts and loans, it really means property rights.
all the best
Excellent article.No opinion on your side but just good journalism. Should the country fall apart? After civil war the social issues were ignored. If USA loses its hegemonic economic and military role the blue-red state divide could divide the country as it looks inward.
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