Towards A Feminist Theory of the Second Amendment

By Erin Solaro, copyright 2010, first published here:

http://blog.seattlepi.com/civicfeminism/2010/07/04/a-feminist-theory-of-the-second-amendmentand-self-defense/
I wasnt going to write this for a while, I figured Id 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 Constitutions
interpretation is fundamentally rooted in a time when male human beings could own each other,
and women, regardless of their race, where not human beings, and if their husbands so pleased,
could 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 himIve always
believed Anita Hilland 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 citizenshipincluding 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 moreor-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 Amendments 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 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 people 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 freedcitizens. Of the Reconstructionist
Amendments, the Fourteenth was in fact, as Thomas convincingly demonstrates, particularly
concerned with black people keeping and bearing armsat home and also on their persons. And
those who exercise themselves about the lethality of todays handguns know nothing about the
lethality of modern riflesor that the huge, slow, mini 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 movementsuch as the Deacons for
Defense and Justice played a significant role in keeping civil rights workers alive. The truth is
that Dr. Kings creed of nonviolence was tactical only, not philosophical. Lynchingand
mutilation and torture, including rape, beforehandwas 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 inand 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 Courts 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 405406.
The meaning of 1s 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 rightsi.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 Amendments 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 Nations 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
Amendments Privileges or Immunities Clause.
In doing so, he improperly 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 Amendmentits nature as an inalienable right that
pre-existed the Constitutions adoptionwas the very reason citizens could not enforce it against
States through the Fourteenth. That circular reasoning effectively has been the Courts 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 understoodjust as the Framers of the Second Amendment didthat 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 Cruikshanks 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 Thomass 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 stateand thus beneficiaries of law enforcementare 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 childrens, 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 pornographers speech. Our bodies are
biologically meant to be strong, well-fed and supple with muscleand 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.

Lets 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-female violence, and everyone thinks
this is normal and natural.
Except were not pretending because we do. Its America, not Afghanistan.
Im not arguing moral equivalence: Ive been to Afghanistan. If you want to talk to me about
moral equivalence, go there first yourselfIll tell you how to do itand then well talk. If you
still want to. Which I doubt you will. But Im also not exaggerating.
Lets run the numbers.
Well start with the FBIs 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, Americas 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 females 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 worlds 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 Im 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-onfemale 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 childs 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 fathers 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 fathers 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 persons
inalienable right to her body, period, full stop, regardless of her relationships or fertility. It is a
crimeand should be punished as suchto touch us, much less to penetrate our bodies without
our full, willing, undrugged, uncoerced, completely freeconsent, 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 forceyet 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
peoples windows to see if shes 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 lets 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 mens 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 humanityand
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
marketas 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 cant 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 weaponspower, control, manipulation, and threatsbacked 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 victims 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 womans life in dealing with such men, who as Lisak noted test
and probe boundaries to see if she is a safe target: placate, dont fight back, appease. A man
touches you in a way or a place you dont like? If he touches you at all, for example, by socialkissing you when it would be inappropriate to do so to a man? Dont 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 didnt youwell, you didnt 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
escalatedindeed asked for anything the woman does to terminate the situation, including
killing.
We might. But we dont. 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 mens 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 victimfor 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 womens defense of themselvesof our lives and the absolutely liberty of
our bodiesis 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 criminals responsibility by questioning
his victims behavior, behavior the criminal often attempted to elicit, is to admit that, if a woman,
you are playing Lets pretend that if I dont 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 dont dare touch a
woman who doesnt 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 acceptableand 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 womans 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 violenceis 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 menplacate and appeasemeans 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 Breretons 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 prosecutors 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 wasnt 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
escalationkilling per se is not the issuerewards 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 didnt 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
Generals 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 foryes, 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 wouldbe 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 worlds preeminent expert
on defensive gun use; his research was used in D.C. v. Heller, which overturned Washington,
DCs 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 Worleys 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
wasnt 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. Its
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 citizens 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
shouldnt carry a handgun. (There are people who hunt and target-shoot in these categories.)
And thats 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. Les 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 deadlyalthough 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. Lotts 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 doand 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 victims 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 ablebodied 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 others 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
Americas 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 Coopers 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 testosteronewhich 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 necessaryincluding
handguns, including concealed carry.
There are plenty of things feminist women can disagree about and still be feminists. This is not
one of them.