Bruen and Mass Shootings: Same Cultural Script

In Bruen, Justice Thomas highlights the story of a Black schoolteacher in post-bellum Maryland who was given a revolver by the local sheriff to protect his students against violence by white mobs (at 52-53). Despite the historical setting, arming teachers to address a pressing social problem of violence will sound familiar to the opinion’s contemporary audience: it is analogous to gun rights advocates’ responses to incidents of mass shootings at schools.

Although no other issue related to gun violence captures public attention in the same way as mass shootings, advocates on both sides of the Second Amendment debate have warned against designing gun laws with mass shootings in mind, because such events are only responsible for a fraction of gun deaths in the United States. Yet it is important to try and understand the cultural connections between mass shootings and Second Amendment law, two uniquely American phenomena related to gun culture which have both surged in the twenty-first century. On their face, mass shootings are pure aggression, and so may seem like the opposite of the defensive action which the Second Amendment protects. But mass shootings occur against the backdrop of two major social conditions that have everything to do with the Second Amendment: the availability of guns, and the power of cultural scripts.

Following mass shootings, pro-gun commentators regularly invoke three types of responses: first, they may frame the problem as one of evil individuals whom law-abiding citizens should be able to quell (solution: arm good guys to take on bad guys); second, they may suggest that violence is inevitable and the way to ameliorate its harms is by reducing social interaction (solution: fortify school buildings to prevent perpetrators from entering or homeschool children); third, they often lament the lack of social cohesion and virtuousness which might prevent some mass shootings (solution: strengthen community-building and morality-inducing institutions such as churches). The third response contradicts the first two. One cannot promote individual gun rights for self-protection against criminals and in the same breath wish for stronger communities. Your neighbor is either your potential killer or your confidant. Since Heller ruled that the Second Amendment protects an individual right to be armed for protection of ourselves against attacks by our fellow citizens, the Supreme Court has conveyed the former message. Bruen barely bothers with rhetoric about political freedom at all; it cements the Second Amendment as a right to be prepared for confrontation wherever it may occur, which is wherever we have a right to be. The third response correctly identifies that acts of violence are a product of culture, and that the cultural problem that yields mass shootings is one of social alienation. Second Amendment jurisprudence clarifies that this problem is one we all share.

Sociologist Zygmunt Bauman has impactfully argued that the extermination camp was not a departure from, but rather a paradigmatic manifestation of, European modernism. Pro-gun responses to mass shootings—which the majority Justices in Bruen echo, legitimize, and arm with legal validity—invite a similar argument with regard to mass shootings and contemporary American culture. The extermination camp revealed the ominous undercurrents of a Weberian state that held a monopoly on violence and instituted a bureaucratic culture that instrumentalized all human experience. Mass shootings reveal the ominous undercurrents of a state that rejects the responsibility to protect and diffuses legitimacy to use violence, within a culture that romanticizes and naturalizes self-sufficiency. Gun advocates often make the comparison explicitly, suggesting a “violence optimality” whereby if the U.S. did not have the especially high rates of private violence it does, it would instead see large-scale group violence: “The down-side of ‘gun control’ is genocide.”

The horrific acts committed by mass shooters should not cloud the fact that mass shooters are devout defenders of the mainstream American cultural narrative, not a deviation therefrom. The demographic of mass shooters tracks that of gun owners except for age: mass shooters are overwhelmingly male and generally white and non-urban, but young. A central motivation attributed to the perpetrators of many mass shootings is “aggrieved entitlement.” They often cannot reconcile an unfair, competitive reality with an ideal image of what life was supposed to be like, for them. There is no one person responsible for this disparity, yet, in the mass shooter’s view, someone must pay for robbing them of the personal and social successes to which they feel entitled. Their ostensibly deserved social capital is reclaimed from society at large—revenge is exacted on the collective and random individuals become legitimate targets as symbols of this unmerited deprivation. Mass shooters defend the narrative of merited success that emanates naturally from social dominance, by showing how catastrophically its fallacy is felt when it materializes. The individual finds in violence a “self-justifying sense of righteousness,” which protects and restores the self when it fails to live up to imaginary standards. These standards nonetheless seem natural—and therefore reality is where the problem lies—owing to the power of myths to dramatize society’s moral consciousness and make it appear as “natural law.”

It has been suggested that mass shooters have “followed the time-honored script of the American Western.” Correspondingly, scholars have appealed to the cultural resonance of vigilantism to justify Heller. Gun owners distance themselves from violence by insisting that their weapons would only be used if they encounter a “bad guy” in action. Yet the continuous presence of personal means of violence—thanks to Bruen, always and everywhere save “sensitive places”—encourages a constant search for an opportunity to be a romantic hero and salvage a sense of self from uselessness and failure. It is logical to infer that the justified provision of these means of violence, thanks to self-defense law, ought to make one’s use of them just. The mass shooter is conceptually troubling precisely because he is an over-conformer, who “swallowed every poison pill our culture could throw at him and was outraged when he became sick.”

The gun helps secure, or vent frustration over the loss of, what one thinks one is owed by society. That the gun is the American man’s best friend translates the social frustration of aggrieved entitlement into a particular form of mass sacrificial violence. This is not a bureaucratic form of violence with scientific justifications, like the Holocaust, nor one loaded with collective metaphysical meanings and religious justifications, like many terrorist acts. The American way of translating (suburban and rural) alienation into violence is to act alone, shooting indiscriminately at multitudes of fellow citizens using a personal gun.

Reading an individual right to guns into the Bill of Rights and then anchoring its expansion in an American tradition of preparedness for confrontation, Second Amendment decisions promote the cultural script of “me and my gun against the world” by placing it at the heart of the meaning of American citizenship. In his Bruen concurrence, Justice Alito repeated statistics about gun violence cited by the dissent, including about mass shootings, to underscore that they present another reason to expand gun rights—not to curb them; the more violence there is, the greater the need for self-defense (at 2-4). Indeed, mass shootings are often followed by peaks in gun sales (partly for fear of victimization and partly for fear of increased regulation). Mass shooters thus vindicate the Hellerian world-view, help it stay relevant, and oil its wheels.

The Political Imperative to Self-Defend

[Ed. note: This guest blog post is part of the Center’s Mini-Symposium on papers presented at the 2020 Firearms Law Works-in-Progress Workshop.]

Does inter-personal self-defense necessarily implicate the political order under which it is exercised? Many moral philosophers, as well as many gun rights advocates, argue in the negative. The justification for a defensive act against an aggressor hinges, they say, on whether the aggressor rendered herself “liable” to be killed by posing an imminent, serious, illegitimate threat to the defender; or that it is the lesser of two evils that the aggressor rather than the defender is the one to lose their life. Such rationales ostensibly hold no matter where and when the situation occurs. Others believe that self-defense is a political no less than a moral situation. That is, that the relevant actors in such situations are not just the aggressor and the defender, but also the collective and the institutions it set up. One example of such a position was articulated by the late criminal law theorist Sanford Kadish. Kadish argued that when a person defends herself against an attack by another person, she is really exercising a right against the state: the defender asserts the “the right of every person to the law’s protection against the deadly threats of others.” The state’s failure to protect the defender is what gives rise to her moral right to ward off the threat that she is faced with, and hence the state bears responsibility for the violence that ensued.

I want to sketch the suggestion that since D.C. v Heller, the Second Amendment also protects a right to self-defense against the state, but of a diametrically opposed kind. Heller’s right against the state arises not when it fails to protect subjects but when it fails to let them protect themselves. To wit, the Hellerian self-defender has a protected interest in exercising his moral judgment of a threatening other—to see to it that this judgment becomes a reality, and to restrict the state’s involvement to an ex post assessment of the legitimacy of his violence.

Kadish grounds his view of self-defense in social contract theory, which predicates the legitimacy of government on granting individuals greater protection than they would have without it. He cites leading philosophical authorities such as Thomas Hobbes and John Locke, but some qualifications are necessary before ascribing his view to either of the two founders of modern social contract theory.

Hobbes indeed held that the sovereign is under a duty to protect the citizenry from physical harm, yet this duty is not a product of individual rights. Rather, it is a matter of equal representation. The sovereign’s legitimacy hinges on representing the will of each and every subject, whose first priority is preserving life and limb. Where the Hobbesian sovereign is absent—or when his power is directed against oneself—one cannot be blamed for protecting oneself; but this is a matter of mere necessity. Hobbes lists individual entitlement to privately judge the moral virtue of actions among “the Diseases of a Common-wealth, that proceed from the poyson of seditious doctrines” [sic]. Private violence—no matter the moral presumptions that guide it—is the primary evil that government ought to eradicate; and it inevitably flows from private will unrestrained by political authority. In order for violence to be justified, not just excused, it needs to represent public rather than private will.

Notwithstanding important discontinuities between Hobbes’s framework and Kadish’s, they are roughly compatible in the sense that both mandate equal protection of all citizens while rejecting the establishment of a moral hierarchy between them.

By contrast, the main problem in a Lockean state of nature, to be resolved by the erection of a civil order, is not violence but injustice. Per Locke, each of us is entitled to determine what justice demands, by private appeal to a pre-fixed natural moral order, and to act accordingly. Setting up a political order helps to realize justice, but it remains the case that political authorities have no monopoly over the articulation and implementation of morality. Thus, Locke not only accommodates but facilitates subjects’ claims of moral superiority over others and subsequent assertion of the power to act on such claims, regardless of social structures. Each individual still possesses the power to make his moral judgment of others a legal reality—utilizing the spectrum of self-help actions stretching between civil disobedience and vigilantism. It is unsurprising that the Lockean framework, which places autonomy interests on a higher footing than safety interests, sits more comfortably with American ideology.

This is the thrust of today’s Second Amendment. The Heller Court ruled that Americans have an individual right to the effective possession and use of the means of self-defense against threats posed by other individuals. The person Heller imagines is not primarily wary of tyranny but of criminality. Among other rhetorical mechanisms, the court used the language of natural rights to justify the result it reached, seemingly employing the strictly moralistic position regarding self-defense. But this is faux naïveté. In both the worldview it expresses and the reality it creates, there is nothing natural about contemporary Second Amendment jurisprudence. Quite the opposite: it actively designs the public sphere.

As an expressive matter, the Constitution is where Americans turn to figure out their identity as a political collective and as the individuals that comprise it. At the core of these identities, Heller tells us, is, among other things, self-defense. For it enjoys auxiliary protection in the Bill of Rights: self-defensive activities, via the means of the gun, belong in the group of basic entitlements we ought to be free to enjoy without state intervention. Self-defense is elevated to a benchmark of political subjectivity. The moralistic hue it is given further implies that as a matter of natural justice, whoever possesses armed might must deserve the right to use it, and whoever finds themselves at the receiving end must be similarly deserving. Post-Heller Second Amendment rights seek to make self-defense as effective as possible, conveying the message that this effectiveness is a requirement of American identity. One must therefore find threats to defend oneself against. The legal and political climate that serves as a backdrop for Heller—with such regimes as Stand Your Ground laws and citizen’s arrest—offers an abundance of such opportunities and then renders their seizing justified.

As opposed to other criminal justice mechanisms that serve vital political functions, Hellerian self-defense closes rather than opens the space for public officials’ discretion. It eschews public interest and public reason to insert private ones in their stead. If for Hobbes and Kadish an instance of self-defense marks a political problem, for Heller it signals that all is going well.