As I have noted previously, I write periodic reviews for CHOICE, a publishing unit of the Association of College and Research Libraries that provides reviews of scholarly books for people working in higher education, especially librarians.

I was recently asked to review, The Gun Dilemma: How History is Against Expanded Gun Rights (Oxford University Press, 2023), a newly published book by the noted student of gun control in the United States, Robert J. Spitzer.

In CHOICE I get just 190 words, so here I offer a slightly elaborated (though certainly not comprehensive) review based on what I submitted.

According to Spitzer (Distinguished Service Professor of Political Science Emeritus at SUNY-Cortland), the United States is at a gun policy fork in the road (ch. 1).

One path leads to violence-reducing gun laws that Spitzer argues American public opinion supports and asserts the country needs; the other path leads to regressive legal decisions expanding gun rights by Federalist Society-backed Originalist judges, especially on the Supreme Court (p. 22).

On the latter point, Spitzer draws on language familiar to me in calling “Gun Rights 1.0” the post Heller (2008) “rough equilibrium that balances gun laws with this new gun right” (p. 3) and “Gun Rights 2.0” the “gear-grinding reverse [of] that equilibrium” that would significantly expand gun rights beyond Heller (p. 4).

Spitzer makes clear his view, citing his own previous work, that SCOTUS’s “reinterpretation of the Second Amendment in Heller was deeply problematic, both as history and law” (p. 17). But he also observes that from Heller in 2008 to Bruen in 2021, “the Supreme Court has declined to hear over 150 appeals of lower federal court rulings on the Second Amendment. Moreover, over 1400 legal challenges to gun laws have resulted in the vast majority of the laws being upheld” (p. 18, citing Giffords Law Center analysis).

From this he concludes, much as Adam Winkler does in his terrific book Gunfight, that American history shows how gun rights and gun regulations are compatible. By contrast, “The ideas that gun laws and rights exist in a zero-sum world, where a gain for one is considered a loss for the other, is a new framework emerging in the hyper-politically charged world of gun politics of the last few decades” (p. 19).

Much of chapter 1 is given over to examining the conservative shift in the federal judiciary, especially the Supreme Court and especially Justices Clarence Thomas who Spitzer sees as leading the Court’s decision-making on gun rights. Spitzer argues that the Supreme Court is “primed to redefine and expand gun rights (Gun Rights 2.0) in a way that will make the 2008 Heller decision (Gun Rights 1.0) look like a liberal triumph” (p. 7).

Reading this book post­-Bruen (2022), we know that the shift from Gun Rights 1.0 to Gun Rights 2.0 is well underway.

In the body of the book, Spitzer offers his own alternative to Originalists’ gun law history, focusing on four contemporary issues: assault weapon and large capacity magazine bans (ch. 2), silencers (ch. 3), weapon brandishing in public (ch. 4), and so-called Second Amendment Sanctuaries (ch. 5).

I am not sufficiently versed in the history Spitzer covers on these topics to judge his history. I can say that post-Bruen interpretations of gun laws and gun rights in American history were front and center at the firearms law works-in-progress workshop I attended recently (co-sponsored by the University of Wyoming Firearm Research Center and Duke Center for Firearms Law).

To reiterate, Spitzer characterizes “the emergent gun dilemma facing America” as: “a country supportive of, and in need of, effective gun laws to address its burgeoning gun violence crisis, contradicted by a conservative Supreme Court including several members who are anxious to not only block that progress but to throw national and state gun laws into gear-grinding reverse by striking them down” (p. 22).

It is perhaps useful to dwell for a moment on the term “dilemma” in this passage and the book’s title. To me, a dilemma suggests a choice that must be made between two equally bad options.

Although it’s clear that Spitzer’s ideal would be a pre-Heller Gun Rights 0.0, at the moment we have two choices: a better option of going back to the Gun Rights 1.0 equilibrium between rights and regulations and a worse option of going forward to the Gun Rights 2.0 expansion of rights at the expense of regulations.

His characterizations throughout the book make clear how he would like the “dilemma” resolved. His other phrasing – a gun policy fork in the road – is, therefore, more apt. In his view, we face a choice between one very good option and one very bad option.

The Gun Dilemma was clearly finished right as the Supreme Court’s Bruen decision was released in June 2022. In what reads as an afterthought, Spitzer notes that the decision is in line with the story he tells, even as it takes the country down his less-favored path (p. 119). Unfortunately, the timing of the decision in relation to his completion of the book is such that Spitzer does not explain the Court’s new text, history, and tradition standard established in Bruen, which could (is likely to?) have effects even beyond what Spitzer fears.